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Seeking Truth and Responsibility: Report of the Expert Advisor to the CTF

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Seeking Truth and Responsibility: Report of the Expert Advisor to the CTF Seeking Truth and Responsibility: Report of the Expert Advisor to the CTF April 2007 Berkeley War Crimes Studies Center Co-authors: David Cohen, Director Aviva Nababan, Jakarta Team Leader Leigh-Ashley Lipscomb, Dili Team Leader In collaboration with: Indri D. Saptamingrum Zainal Abidin Bartolomeu de Araujo 1 PURL: https://www.legal-tools.org/doc/d10345/ PART I: JAKARTA DOCUMENTS: KPP HAM and AD HOC COURT 2 PURL: https://www.legal-tools.org/doc/d10345/ CHAPTER 1 INTRODUCTION This part of the Report assesses the three bodies of documents in relation to the legal process the Republic of Indonesia undertook to address the gross violations of human rights before, during, and after the announcement of the popular consultation in East Timor, which led to the secession of the then Indonesia’s 27th province into the independent, sovereign nation of Timor-Leste. The three bodies of documents are namely: the report and evidence presented in the National Commission of Human Rights’ Inquiry Team (KPP HAM) report, the investigative dossiers (BAP) that document the investigation process commenced by the Attorney General’s Office following the KPP HAM report, and the court documents from the twelve trials before the Jakarta Ad Hoc Human Rights Court of the defendants accused of gross violations of human rights. The report of the findings of this research on the Indonesian process will be structured in three parts. This chapter elaborates the context of the research itself and the working definitions. The second chapter shall contain three separate analyses on the three bodies of documents. The third chapter shall set out the findings of the research, including the weaknesses of each body of documents. The Popular Consultation held in East Timor in 1999 marked a new strategy in dealing with East Timor in the post Soeharto Era. President Habibie proposed a new approach to resolve the East Timor problem. The proposal provided two options for the East Timorese, namely the option to give East Timor special autonomy, or on the contrary to refuse special autonomy, which also meant to become independent from Indonesia. This was then formulated in the New York Agreement on May 5th, 1999 between the governments of Indonesia and Portugal. Based on this agreement, the Indonesian government agreed to hold a Popular Consultation. Furthermore, they agreed to be responsible for maintaining security and peace in East Timor in order too ensure that the Popular Consultation would be fair and peaceful, and free from any intimidation, violence, or intervention by any parties. 3 PURL: https://www.legal-tools.org/doc/d10345/ As part of this agreement, the duty to ensure peace and security was transferred from the TNI to the Police. The consultation that was held on the 30th of August resulted in the victory of the pro-independence option, which was chosen by around 78.5 percent of the voters. During the months leading up to the Popular Consultation, political tensions mounted and often escalated into violence in communities across East Timor. The question of responsibility for that violence, and for the even larger scale outbreaks after the defeat of the pro-autonomy option, was the central focus of a number of investigations conducted both internationally and in East Timor. Because of the violence before, during, and after the Popular Consultation, there was a great deal of international scrutiny which led to the establishment of an inquiry team of the Indonesian National Commission of Human Rights to investigate gross violations of human rights over these incidents. The report of this inquiry team led to a formal legal process by the Attorney General’s office, that in itself led to twelve trials. Due to international pressure and to avoid the possibility of the establishment of an international tribunal, the Indonesian government enacted Law No. 26/2000 on the Human Rights Court which provided foundation for the establishment of the Ad Hoc Human Rights Court. The East Timor cases were actually the first to be tried in the Ad Hoc court. There were twelve trials heard before the court, six of which resulted in acquittal of the defendants. While six defendants were convicted, on appeal all but one of the convictions was reversed and the charges dropped. This result generated criticism internationally and from domestic NGO circles. By analyzing the above documents, it is expected that the following main questions will be answered: 1. Were there gross violations of human rights in 1999 East Timor? This includes addressing the historical, military, and political context surrounding the period. 2. If the answer to the second question is yes, then what institutions were responsible for the gross violations of human rights? 4 PURL: https://www.legal-tools.org/doc/d10345/ It should be noted here that since the documents examined were from the legal process seeking accountability from those under Indonesia’s jurisdiction, the answer to the second question will be, unavoidably, about the relation between the gross violations of human rights and Indonesia’s authority present in East Timor at the time. That is, the focus of the KPP HAM investigation and that of the Prosecutor for the Ad Hoc Court was on Indonesian commanders, officers, and government officials who where, in accordance with the New York Agreement, in charge of maintaining order in the region. In particular these bodies concentrated on the crimes committed against pro-independence groups and supporters that had been widely observed and reported on by UN officials and other international observers. From the international perspective, and that of many Timorese, the vast majority of the crimes appeared to have been committed by pro- autonomy militia groups, with the knowledge, support, and sometimes direct participation of Indonesian institutions. It was these charges that were investigated by KPP HAM and the Prosecution. This perspective, however, does not preclude other parties’ responsibility if they also committed gross violations of human rights in East Timor at the time. Yet because of the focus of the investigative efforts of the Attorney General’s office and the KPP HAM on Indonesian institutions and individuals, little was done to investigate crimes committed against the pro-autonomy groups. This fact must be kept in mind when reading this report. The working principle here is that whichever party commits gross human right violations should be held accountable, and there is no justification for impunity for the use of extrajudicial violence as a means to resolve an issue, even if the acts are retaliation to another party’s criminal conduct. I. Underlying Definitions Utilized in the Research I.a. Gross Violations of Human Rights and Crimes Against Humanity Gross violations of human rights in this research is interpreted as the violations of rights protected by International treaties, especially by parties that according to International 5 PURL: https://www.legal-tools.org/doc/d10345/ Law are responsible to protect them. There are several approaches to interpreting gross violations of human rights. The KPP HAM report, for example, refers to the International Covenant on Civil and Political Rights (ICCPR) and defines gross violations of human rights as grave breaches of fundamental rights, which are considered as non - derogable rights, or rights that can not be suspended for any reason in either times of peace or war, under the ICCPR.1 Among others are the right to life, the right to not be subjected to torture, and the right that prohibits any form of slavery. In addition, this research also interprets the term as what is stipulated in the Law No. 26/2000, which provides the domestic legal foundation for the use of the term. The Act provides that gross violations of human rights consist of two substantial crimes, namely crimes against humanity and genocide. I.b. Crimes Against Humanity The report focuses upon the elements of crimes against humanity, not only to follow the form of criminality pursued by the legal process, but also because it can be used to form a framework to differentiate the patterns and causes of violence in 1999 East Timor from mere random occurrences. This report uses the official guidelines of The Supreme Court of Indonesia as its frame of reference for defining crimes against humanity and for the interpretation of Law No. 26/2000 by the Indonesian human rights courts. Crimes against humanity as defined in the Rome Statute of the International Criminal Court (ICC) and adopted by the Supreme Court guidelines are: For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; 1 See article 4(2) ICCPR. 6 PURL: https://www.legal-tools.org/doc/d10345/ (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this Paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. As can be derived from the definition, and as explained in the guidelines issued by the Indonesian Supreme Court in 2006, any act to be considered as a crime against humanity has to meet the following requirements2: (1) That the act is conducted as a part of a widespread or systematic attack which is directed against a part of the civilian population.
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