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From: JUSTICE AND ACCOUNTABILITY IN EAST TIMOR: INTERNATIONAL TRIBUNALS AND OTHER OPTIONS
Report of a one-day seminar in Dili, East Timor
16 October 2001
Prosecuting Serious Crimes in East Timor
By Nelson Belo and Christian Ranheim,
Judicial System Monitoring Programme
After hundreds of years of colonization and brutal occupation, East Timor is finally on its way towards nationhood. The struggle for self-determination and independence was painful, and you all know what sacrifices it required. Each family, every individual in East Timor was affected, either directly or indirectly from the massive human rights abuses carried out by foreign invaders. It is not hard to imagine the need you may feel to address the past, to seek justice, truth, vengeance and forgiveness in order to overcome a traumatic past and move forward. This short presentation will give you an insight into how the formalized East Timorese justice system approaches the issue of justice for past atrocities.
1. Brief overview of the Serious Crimes process
During 2000, UNTAET established a system for both investigations and prosecutions of so called "Serious Crimes." UNTAET Regulation 2000/15 defines these crimes as genocide, war crimes, crimes against humanity, torture, sexual offences and murder.
Investigative power has been allocated to the Serious Crimes Investigation Unit (SCIU), who is under supervision and directed by the Office of the Deputy General Prosecutor. When a case is ready for trial, it is transferred to the Special Panel for Serious Crimes at the Dili District Court.
The Special Panel can try all cases mentioned earlier -- whenever they took place. An exception is sexual offences and murder, which must have been committed within the period of 1 January and 25 October 1999. The Panel consists of two international and one East Timorese judge. It may be of interest to you to hear that all proceedings are being translated into both Bahasa Indonesia and English, and that they are open to the public. There is in other words no excuse not to attend one or several sessions in order to get an idea of how things are proceeding in court.
2. What progress has been made so far?
Investigations
Investigating serious crimes is a time consuming and complicated task anywhere in the world. A number of issues have made it even more complicated in East Timor, most of which are related to the initial lack of basic resources necessary to perform modern, technical investigations. Exhuming graves, providing ballistic analysis, making DNA tests, forensic reports and so on are all resource demanding, and the Serious Crimes Investigation Unit has been lacking both the facilities, funding and human resources to perform their job satisfactorily. After the Security Council visit to Dili late 2000, the situation has improved somewhat as additional funding has been allocated to the Unit.
The Prosecutor’s office and the Serious Crimes Investigation Unit have been criticised for their strategy, or what some have called lack of strategy, for prioritising and conducting investigations. It is, however, important to remember that when the SCIU was established, a number of people suspected of having committed serious crimes had already been detained. In order not to have to release those suspects from prison, the SCIU focused on investigating their cases first. They are now all finalised and the accused have either faced trial, or are awaiting trial. The focus of the investigations have since been directed at ten so called "priority cases", out of which seven investigations already have been completed. The ten cases are :
Even though the SCIU has limited resources for investigating atrocities committed prior to 1999, a unit within CivPol is investigating so called "historic crimes". No indictments have so far been produced, and we have been informed that their investigations are going slowly due to the technical problems of investigating crimes that happened so long ago.
Prosecution and trials
As of today 11 people have been convicted by the Special Panel for Serious Crimes. Their prison sentences range from 4 to 16 years’ imprisonment with an average sentence of just below 12 years. The maximum penalty in East Timor today is 25 years’ imprisonment. No one has so far been found not guilty, but two cases have been dismissed on procedural grounds. The first major case to be tried before the court — the Los Palos case — is currently adjourned awaiting the closing statements of the prosecution and defence. It includes 10 accused, all charged with crimes against humanity.
Few of those convicted so far have had any command responsibility. There are, however, a number of Indonesian TNI officers among the approximately 40 who have been indicted but not yet faced trial. They are at the moment assumed to be residing in Indonesia, a factor which complicates the work of the Deputy General Prosecutor considerably. A memorandum of understanding (MOU) was signed between the Attorney General of Indonesia at the time, Marzuki Darusman, and Sergio Vieira de Mello on behalf of UNTAET regarding cooperation in investigation and prosecution related matters. Although UNTAET has issued a number of arrest warrants to INTERPOL and to Indonesia, no action have been taken. Not fulfilling their obligation to cooperate, Indonesia is obstructing the process of bringing the perpetrators to justice before East Timorese courts.
UNTAET is currently initiating a dialogue with the office of the new Attorney General in Indonesia and, although it is too early to tell, we do not expect any major positive outcomes of the discussions.
3. What are the chances of bringing the perpetrators to justice before East Timorese courts?
The answer to this question is crucial when evaluating whether the establishment of an international Ad Hoc tribunal will be necessary in order to bring justice to the people of East Timor, or whether other alternatives might be more effective. Trying crimes before domestic courts will in most cases be preferred due to a number of reasons, not least from the perspective that the perpetrators of crimes should be brought to justice in the country in which the crimes were committed. An Ad Hoc tribunal would be an expensive solution, and might drain the existing judicial system of East Timor of much needed resources.
Whether the current system in place will be sufficient to bring justice to the East Timorese depends, however, on three main factors; investigation strategies, compliance by Indonesia and/or voluntary returns and capacity within the East Timorese courts.
a) Investigation strategies
Investigations carried out by the Serious Crimes Investigation Unit have recently entered into a new phase. The first suspects to be investigated by the Serious Crimes Investigation Unit were already in detention in East Timorese prisons. Most were captured, either by FALINTIL or by INTERFET and handed over to the civilian authorities in January 2000. The first few indictments to be issued by the Deputy General Prosecutor were brought before the Special Panel as simple murder cases, and the ones found guilty were those who directly carried out the criminal act. The prosecutors claimed they lacked both resources and evidence necessary to prove that international criminal law had been violated. We have seen a tendency in the newer indictments that they cover crimes against humanity, and that a larger number of those indicted are presumed to be residing in Indonesia. Among those indicted are a number of people with a direct command responsibility. As far as we know, evidence is being gathered also against higher ranking officers. We do, however, fear that they are not prioritised and that they might not result in any indictments before the Serious Crimes Investigation Unit phases out of East Timor, something that most likely will happen late 2002.
b) Compliance by Indonesia and/or voluntary returns
Carrying out investigations and issuing indictments is one thing, actually having the accused present to face trial in East Timor is another. Without the accused present during the preliminary hearing of the trial, it can not proceed according to both UNTAET Regulation 2000/30 and international fair trial principles. As mentioned above, most of those being indicted today are presumed residents of Indonesia. It is highly unlikely that Indonesian authorities will comply with the MOU signed with UNTAET, and extradite Indonesian citizens unless they are pressured internationally to do so.
It is, however, likely that as part of the ongoing reconciliation process, some militia commanders and members might return to East Timor and face trials before the Special Panel for Serious Crimes. Even if these are brought to justice, the "masterminds" behind the atrocities will still remain in Indonesia.
c) Capacity within the East Timorese courts
Even with the cases pending before the Special Panel for Serious Crimes today, a heavy backlog has been created. Since the commencement of the Los Palos trial in early July, all other trials have been adjourned. We are at the moment experiencing a situation where there are far more indictments being filed than the court can keep up with. There are additional Panels being established, but we are doubtful this will increase trials substantially, unless additional resources are being allocated in order to support the judicial infrastructure.
For example, there are currently only twelve public defenders covering all cases in East Timor. Those defenders have responsibility both for civil cases, as well as ordinary crimes and serious crimes cases. Two of the defenders are in Portugal for legal training on a rotation basis, reducing the number of defenders to ten.
Another area where court capacity is too low to permit three Panels working simultaneously is court interpretation. Most hearings require translations into both English and Bahasa Indonesia, as most prosecutors are English speakers, while the defenders use Bahasa Indonesia. The entire Ministry of Justice has until now only had three translators working between those languages. They are supposed to cover both court interpretation, the department’s correspondence and other documents such as judgments. None of the interpreters are legally trained. A Portuguese speaking Panel is being established, but there is at the moment a shortage of both prosecutors and public defenders with sufficient Portuguese language skills.
Even as of today, the court system lacks the necessary capacity to handle all serious crimes cases efficiently. If Indonesia, unexpectedly, were to comply with the signed MOU and start extraditing people to the East Timorese courts, we fear the system as we know it today would collapse.
d) Conclusion
So where does this leave us? Speakers later on today will give you some information on how an International Tribunal might be established, what it may cost and the likely outcome of judicial processes before such an institution. While a tribunal is still far away, the trials here in East Timor have started. The first few cases to be brought before the Special Panel for Serious Crimes involve mostly lower level militia members as a consequence of Indonesia’s failure to comply with their obligation to cooperate with UNTAET in order to bring the higher level perpetrators to justice. What worries us the most is that this seems to happen without international diplomats raising eyebrows over what is turning into a farce.
Without taking any position on the issue of an Ad Hoc Tribunal, an alternative to a large scale campaign for a tribunal might be to focus on lobbying for Indonesian compliance with the already existing legal process in East Timor, and simultaneously ensure that sufficient resources are allocated to the fledgling judicial system.
Thank you.
La'o Hamutuk, The East Timor Institute for Reconstruction Monitoring and Analysis
International contact: +1-510-643-4507, lh@etan.org
Website: www.laohamutuk.org