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A Truth Commission for East Timor: Lessons from South Africa?

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A Truth Commission for East Timor: Lessons from South Africa? 04 Jenkins (JG/d) 6/11/02 11:41 am Page 233 © 2002 OXFORD UNIVERSITY PRESS A TRUTH COMMISSION FOR EAST TIMOR: LESSONS FROM SOUTH AFRICA? Catherine Jenkins* ABSTRACT East Timor finally became an independent state on 20 May this year. In its continuing quest for justice for the victims of the many human rights violations that took place during the period of the Indonesian occupation, it has pressed its claim for an inter- national criminal tribunal and for criminal trials both in Indonesia and in East Timor itself. It has also established a Commission for Reception, Truth and Reconciliation, which has recently begun work. This paper considers what the East Timorese Com- mission can hope to achieve and examines whether any lessons should be drawn by it from the experience of the South African Truth and Reconciliation Commission. 1 INTRODUCTION At the end of May 2001, Thabo Mbeki, President of the Republic of South Africa, announced that the South African Truth & Reconciliation Commission [‘TRC’], established in 1995, would finally close its doors.1 A few days later, the results of a survey of 3,727 South Africans carried out by a Cape Town NGO2 revealed that 81 per cent of black South Africans had never eaten a meal with a white person; that 56 per cent of black South Africans thought whites were untrustworthy; and that just over half of black South Africans found it hard to imagine being friends with a white person. Truth and reconciliation commissions are now often proposed in con- nection with ‘nation-building’ projects, yet the results of this South African survey seem to suggest that some caution or circumspection may be appropriate. On 20 June 2001 the National Council of East Timor approved the UNTAET3 draft Regulation establishing a Commission for Reception, Truth & Reconciliation in East Timor [the Commission].4 Seven National Commissioners, headed by the * Director, Centre for Law and Conflict, University of London. The author wishes to acknowledge the generous support of the Airey Neave Trust and SOAS in funding her research in South Africa, as well as the assistance of the University of the Witwatersrand, Johannesburg, in providing her with a research base for two years. 1 ‘TRC’s Closure Ends Saga of Atrocity’, The Star, South Africa, 30 May 2001 [http://www.iol.co.za]. The Truth & Reconciliation Commission is expected to publish a final supplement to its 1998 Report in around January 2003. 2 The Institute for Justice and Reconciliation. The results of the survey were published in the Mail & Guardian, web edition, [http://www.mg.co.za], 12 June 2001 and in The Inde- pendent, 13 June 2001. 3 United Nations Transitional Administration for East Timor. 4 Regulation 2001/10 of 13 July 2001 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor (the Regulation), available at <http://www.un.org/peace/etimor/UntaetN.htm> and at the Commission’s own website: <http://www.easttimor-reconciliation.org>. JOURNAL OF CONFLICT AND SECURITY LAW (2002), Vol. 7 No. 2, 233–251 04 Jenkins (JG/d) 6/11/02 11:41 am Page 234 234 Catherine Jenkins prominent human rights activist Aniceto Guterres Lopes, took office in January 2002. Twenty-nine Regional Commissioners were sworn in on 15 May 2002.5 The broad mandate of the Commission includes, inter alia, establishing the truth regard- ing past human rights violations in East Timor, assisting in restoring the human dignity of victims, promoting reconciliation and supporting the reception and reintegration of individuals who have caused harm to their communities. The Commission held its first public hearing at the end of April 2002 – into the exile of Timorese activists by the Indonesian authorities to the island of Atauro in the early 1980s.6 Like South Africa, East Timor has had a long history of gross and systematic human rights violations, dating back at least to the illegal Indonesian occupation of East Timor in 1974. Though deeply etched in the memory of East Timorese, this long history seems in danger of being partially eclipsed, internationally, by the terrible destruction and violence surrounding Indonesia’s ultimate departure from the territory in 1999. The Commission’s mandate, which covers the entire period of the Indonesian occupation, may go some way towards ensuring that the earlier violations are not ignored. The International Commission of Inquiry established by the UN in 1999 was given a mandate to gather information only on the violations committed in that year, immediately before and after the UN ‘popular consultation’ in which East Timorese formally expressed their overwhelming desire for independence. The International Commission made clear in its Report of January 2000 that it had considered a number of suggestions for possible methods of dealing with the 1999 violations. ‘Some proposals were for an international criminal tribunal and others referred to experiences in other countries with truth and reconciliation commis- sions.’7 The International Commission clearly took the view that the establishment of a truth and reconciliation commission would not in itself be a sufficient response to the very serious violations of human rights that had occurred. It noted that during its time in East Timor, it had become ‘acutely aware of the suffering of the people of East Timor by reason of the violations which had taken place’ and believed that it had: a special responsibility to speak out on behalf of the victims who may not have easy access to international forums. They must not be forgotten in the rush of events to redefine relations in the region, and their basic human rights to justice, compensation and the truth must be fully respected. This is a responsibility which the United Nations must shoulder both in the short 5 The criteria for appointment of National Commissioners, contained in s.4.1 of the Regu- lation, emphasize that Commissioners should be ‘of high moral character, impartiality and integrity’. Section 11.1 specifies the criteria for appointment of Regional Commissioners. The Commission has established six Regional Offices. 6 ‘Timor launches commission to reconcile nation with troubled past’, The Age (Mel- bourne), 22 April 2002. 7 Report of the International Commission of Inquiry on East Timor, UN doc.A/54/726, para.151. The Report is available at <http://www.unhchr.ch/huridocda>. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 235 A Truth Commission for East Timor 235 and long terms, in particular in its trusteeship relation with the people of East Timor as it administers the territory towards independence.8 Further, noting that the actions violating human rights in 1999 were directed against a decision of the UN Security Council and were contrary to agreements reached between Indonesia and the UN, the International Commission of Inquiry argued that the UN as an organization had a vested interest in punishing those responsible, in order to ensure respect for future resolutions of the Security Council. The International Commission recommended the establishment by the UN of two institutions: (i) an independent, international body to conduct further investigations in to the 1999 violations, identify those responsible, ensure reparations for victims, ‘prosecute those guilty of serious human rights violations’ and consider ‘the issues of truth and reconciliation’; and (ii) an international human rights tribunal of judges appointed by the UN, ‘to try and sentence those accused by the independent investigation body of serious violations of fundamental human rights and international humani- tarian law which took place in East Timor since January 1999 regardless of the nationality of the individual or where that person was when the violations were committed.’ The Report concluded: It is fundamental for the future social and political stability of East Timor that the truth be established and those responsible for the crimes commit- ted be brought to justice. Every effort has to be made to provide adequate reparation to the victims, for only then can true reconciliation take place.9 In spite of these conclusions by the UN’s own International Commission of Inquiry and similar recommendations contained in a further report to UNTAET by James Dunn in April 2001, no international tribunal has been established by the UN to deal with the violations committed since January 1999. Instead, the UN has ‘encouraged’ Indonesia and East Timor to deal with the violations at the national level. Though the UN appears reluctant to acknowledge it, little progress has yet been made in Indonesia with the prosecution of those responsible. Bishop Carlos Belo of East Timor has expressed the mistrust of East Timorese in investigations launched by Jakarta, and their firm belief that only an international court will be able to prosecute the generals and commanders who were behind the violence of 1999.10 Indonesia has so far refused to extradite any Indonesians for trial in Dili, where, pursuant to UNTAET Regulation 2000/15, a Special Panel for the trial of 8 Ibid., para.146. 9 Ibid., para.155. 10 ‘Nobel Laureate Appeals For East Timor Tribunal’, 23 April 2001, AP. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 236 236 Catherine Jenkins serious crimes has been operating since January 2001. It is dealing, initially at least, with a small number of ‘priority cases’ of serious crimes committed by Timorese pro-Indonesian militia in 1999.11 Even less progress has been made towards dealing with human rights violations committed before January 1999. Despite repeated calls from East Timorese leaders for the establishment of an international criminal tribunal to deal with serious crimes committed during the entire period of the Indonesian occupation, no such tribunal has been established. Bishop Belo has explained that: While we believe in and promote reconciliation, the people of East Timor are crying out for justice against the perpetrators of the horrendous crimes committed during the Indonesian occupation.
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