DOCSLIB.ORG

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

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

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.
Recommended publications
  • East Timor 1999 Crimes Against Humanity

    East Timor 1999 Crimes Against Humanity

    East Timor 1999 Crimes against Humanity A REPORT COMMISSIONED BY THE UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)* By Geoffrey Robinson University of California Los Angeles July 2003 *This report has been referenced many times by CAVR and since it is as yet unpublished it is included here in its entirety. The text is identical to that received from OHCHR, but fonts and styles have been altered to fit with the typesetting design of the CAVR report. As of October 2005, an updated version of this report was also due to be published in English and Indonesian by Asosiasi Hak, Dili, Timor-Leste. For more information Asosiasi Hak can be contacted through their website: www.yayasanhak.minihub.org ����� �� �������� ������������ ��� ��������� ������� Method and Mandate Outline and Chapter Summaries Conclusions ���� �� �������� ������ ��� �������� �� ���������� ��� ��������� ������� 1.1 Indonesian Invasion and Occupation 1.2 Resistance 1.3 International Response 1.4 Breakthrough in Indonesia 1.5 UNAMET and the Popular Consultation �� ���������� ����� ��� �������� 2.1 The Indonesian Armed Forces 2.2 The Militias 2.3 The Indonesian Police 2.4 The Civilian Government and the ‘Socialization’ Campaign 2.5 Pro-autonomy Political Parties 2.6 Specialized Government Bodies ���� ��� ����� ������ �� ����� �������� ��� ���������� �� ����������� �������� ��� ������������ 3.1 Types of Violation 3.2 Chronology of Violations: Three Periods 3.3 The Victims 3.4 The Perpetrators �� �������� ��� ���������� 4.1 Temporal Variation – Turning Off
  • Divided Loyalties Displacement, Belonging and Citizenship Among East Timorese in West Timor

    Divided Loyalties Displacement, Belonging and Citizenship Among East Timorese in West Timor

    DIVIDED LOYALTIES DISPLACEMENT, BELONGING AND CITIZENSHIP AMONG EAST TIMORESE IN WEST TIMOR DIVIDED LOYALTIES DISPLACEMENT, BELONGING AND CITIZENSHIP AMONG EAST TIMORESE IN WEST TIMOR ANDREY DAMALEDO MONOGRAPHS IN ANTHROPOLOGY SERIES For Pamela Published by ANU Press The Australian National University Acton ACT 2601, Australia Email: [email protected] Available to download for free at press.anu.edu.au ISBN (print): 9781760462369 ISBN (online): 9781760462376 WorldCat (print): 1054084539 WorldCat (online): 1054084643 DOI: 10.22459/DL.09.2018 This title is published under a Creative Commons Attribution-NonCommercial- NoDerivatives 4.0 International (CC BY-NC-ND 4.0). The full licence terms are available at creativecommons.org/licenses/by-nc-nd/4.0/legalcode Cover design and layout by ANU Press Cover photograph: East Timorese procession at Raknamo resettlement site in Kupang district 2012, by Father Jefri Bonlay. This edition © 2018 ANU Press Contents Abbreviations . ix List of illustrations . xiii List of tables . xv Acknowledgements . xvii Preface . xxi James J . Fox 1 . Lest we forget . 1 2 . Spirit of the crocodile . 23 3 . ‘Refugees’, ‘ex-refugees’ and ‘new citizens’ . 53 4 . Old track, old path . 71 5 . New track, new path . 97 6 . To separate is to sustain . 119 7 . The struggle continues . 141 8 . Divided loyalties . 161 Bibliography . 173 Index . 191 Abbreviations ADITLA Associação Democrática para a Integração de Timor Leste na Austrália (Democratic Association for the Integration of East Timor into Australia) AITI Association

  • Asia Briefing, Nr. 16: Indonesia

    INDONESIA Briefing Jakarta/Brussels, 8 May 2002 INDONESIA: IMPLICATIONS OF THE TIMOR TRIALS OVERVIEW little more than criminal negligence on the part of the accused. As East Timor moves toward independence on 20 In these circumstances, regardless of whether the May 2002, trials are proceeding in Jakarta against defendants are ultimately convicted, these trials Indonesian army and police officers and civilian may well produce the following consequences in officials accused of serious human rights violations Indonesia: in connection with the 1999 violence there. Within Indonesia, the trials have generated little interest, the near-universal image within Indonesia of nothing approaching the attention given to the the conflict as a civil war between two prosecution of Tommy Soeharto, the former equally matched factions of East Timorese president’s son. Abroad, the delays in getting the will be reinforced. With the prosecution trials underway, the high-ranking position of some failing to produce any evidence suggesting defendants, the inexperience of the judges in trying active involvement of high levels of the human rights crimes, and the government’s pointed Indonesian government in the 1999 violence, lack of interest in addressing military impunity the pro-independence victory is difficult to have raised doubts that any of the accused will be explain except in terms of ill will toward convicted. Indonesia on the part of the international community. Had the indictments been better The problem is not so much with the way the cases prepared, they not only might have helped are being judicially conducted. Inexperienced as illuminate the political dynamics in East they are, the judges have thus far exceeded Timor in 1999, but might have led to more expectations, rejecting military arguments and effective policies in Aceh and Papua; demonstrating a willingness to use international human rights law in a way that defies a common the United Nations in particular will perception of them as incompetents or political continue to be seen as a biased and hacks.
  • East Timor 1999: Crimes Against Humanity a Report Commissioned by the United Nations Office of the High Commissioner for Human Rights (OHCHR)

    East Timor 1999: Crimes Against Humanity a Report Commissioned by the United Nations Office of the High Commissioner for Human Rights (OHCHR)

    EAST TIMOR 1999 CRIMES AGAINST HUMANITY EAST TIMOR 1999 CRIMES AGAINST HUMANITY REPORT COMMISSIONED BY THE UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR) GEOFFREY ROBINSON UNIVERSITY OF CALIFORNIA LOS ANGELES July 2003 HAK ASSOCIATION & ELSAM DILI & JAKARTA East Timor 1999: Crimes Against Humanity A Report Commissioned by the United Nations Office of the High Commissioner for Human Rights (OHCHR) By Geoffrey Robinson University of California Los Angeles July 2003 First published in 2006 by HAK Association & ELSAM HAK Association Rua Governador Serpa Rosa T-091, Farol, Dili, Timor-Leste Tel.: +670 3313323 | Fax: +670 3313324 e-mail: [email protected] ELSAM – Institute for Policy Research and Advocacy Jl. Siaga II/31, Pasar Minggu, Jakarta 12510 Tel.: +6221 7972662 | Fax: +6221 79192519 e-mail: [email protected], [email protected] Cover design & Layout by Alit Ambara | nobodycorp. <[email protected]> Cover photograph: HAK Association ISBN 979-8981-29-4 v Table of Contents Foreword by José Luis de Oliveira viii Introduction by Asmara Nababan x Preface 1 Executive Summary 4 Method and Mandate 5 Outline and Conclusions 6 Part I: Context, Power, and Strategy 7 1. Historical and Political Context 8 1.1 Indonesian Invasion and Occupation 8 1.2 Resistance 10 1.3 International Response 12 1.4 Breakthrough in Indonesia 14 1.5 UNAMET and the Popular Consultation 15 2. Indonesia: Power and Strategy 19 2.1 The Indonesian Armed Forces 19 2.2 The Militias 23 2.3 The Indonesian Police 25 2.4 The Civilian Government and the ‘Socialization’ Campaign 26 2.5 Pro-autonomy Political Parties 28 2.6 Specialized Government Bodies 29 Part II: Human Rights in 1999: Patterns and Variations 31 3.
  • Interim Report on Indonesian Ad Hoc Human Rights Tribunals

    Interim Report on Indonesian Ad Hoc Human Rights Tribunals

    INTENDED TO FAIL The Trials Before the Ad Hoc Human Rights Court in Jakarta Written by Professor David Cohen Director, UC Berkeley War Crimes Studies Center Edited by the International Center for Transitional Justice INTRODUCTION About the ICTJ The International Center for Transitional Justice (ICTJ) assists countries pursuing accountability for mass atrocity or human rights abuse. The Center works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved. It provides comparative information, legal and policy analysis, documentation, and strategic research to justice and truth-seeking institutions, nongovernmental organizations, governments, and others. The ICTJ assists in the development of strategies for transitional justice comprising five key elements: prosecuting perpetrators, documenting violations through nonjudicial means such as truth commissions, reforming abusive institutions, providing reparations to victims, and advancing reconciliation. The Center is committed to building local capacity and generally strengthening the emerging field of transitional justice, and works closely with organizations and experts around the world to do so. The ICTJ in Timor-Leste The ICTJ has been involved in helping Timor-Leste deal with the legacy of past human rights abuse since 2001. The Center has been closely involved in the creation of the Commission for Reception, Truth and Reconciliation and in providing technical advice and assistance as it has progressed. The ICTJ has also worked closely with the Serious Crimes Unit and the UN Missions in Timor-Leste to try to help ensure that their efforts were as effective as possible in bringing perpetrators to justice.
  • East Timor Page 1 of 10 East Timor Country Reports on Human Rights Practices

    East Timor Page 1 of 10 East Timor Country Reports on Human Rights Practices

    East Timor Page 1 of 10 East Timor Country Reports on Human Rights Practices - 2000 Released by the Bureau of Democracy, Human Rights, and Labor February 23, 2001 East Timor made significant progress in establishing its institutions of democracy and governance; however, during its first full year of independence from Indonesia, reconstruction and recovery from the September 1999 violence that ravaged the territory was a central focus of activity, and numerous problems remained. In a U.N.- administered consultation vote on August 30, 1999, an overwhelming majority of East Timorese voted against autonomy (and, in effect, for independence from Indonesia), and in early September 1999, the U.N. Secretary General declared the ballot results to be "an accurate reflection of the will of the East Timorese people." As a result, in October 1999, the Government of Indonesia approved revocation of the 1978 Indonesian parliamentary decree that annexed East Timor, allowing for the establishment of the U.N. Transitional Administration in East Timor (UNTAET), which is mandated by the U.N. Security Council to establish a democratic government in East Timor. UNTAET continued to govern East Timor, and the National Consultative Council (NCC) advised the Transitional Administrator. In July UNTAET established a new governing structure, the East Timor Transitional Administration (ETTA). With the addition in October of the Foreign Affairs portfolio, the ETTA cabinet consisted of nine ministries, four of which were headed by UNTAET officials and five of which were headed by East Timorese. UNTAET appointed members of the NCC and the cabinet in close consultation with the National Council of Timorese Resistance (CNRT), a political umbrella of proindependence parties.