A Truth Commission for East Timor: Lessons from South Africa?
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© 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
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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
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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
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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. Without justice, the broken- ness continues.12
Mari Alkatiri, the Chief Minister of the new government of East Timor, believes that the establishment of an international tribunal is imperative. He sees no differ- ence in principle between the situation of East Timor and that of Rwanda or former Yugoslavia, for which international tribunals were established by the UN Security Council.13 Whilst it may be argued, in the case of East Timor, that the security circumstances of the region would make it more difficult for the Security Council to rely on chapter VII of the Charter as the legal basis for establishing an inter- national tribunal, this hardly provides a complete explanation for the real reluc- tance to establish such a tribunal for East Timor. Indeed, in its latest resolution on East Timor, the Security Council noted ‘the existence of challenges to the short and long-term security and stability of an independent East Timor’ and determined that ‘ensuring the security of the boundaries of East Timor and preserving its internal and external stability’ was ‘necessary for the maintenance of peace and security in the region.’14 In the case of East Timor, however, it used its security assessment not as grounds for an ad hoc tribunal but for the establishment of a successor mission to UNTAET: a UN Mission of Support in East Timor [UNMISET] with a civilian police and military component, as well as personnel to provide administrative and other support to the new government over the next year. There can be little doubt that experience with the tribunals in The Hague and Arusha has dampened some states’ enthusiasm for ad hoc tribunals, which are widely perceived as slow, costly and remote. Regrettably, however, the main consideration militating against an international tribunal may well be what the Inter- national Commission of Inquiry termed ‘the rush of events to redefine relations in the region’ and, in particular, a desire on the part of some permanent members of the Security Council to re-establish good commercial relations with – and arms sales
11 The incidents are being investigated and prosecuted by the Serious Crimes Unit of the Office of the Prosecutor-General. 12 See above, n.10. 13 Interview with the author, Lisbon, 27 October 2001. 14 SC Res.1410 (2002), 17 May 2002. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 237
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to – Indonesia. In practice, there seems little likelihood of the establishment of an ad hoc international tribunal for East Timor. The impact of this is exacerbated by the lack of political will in Indonesia for criminal prosecutions at the national level, as well as by the lack of capacity for prosecutions in East Timor and the difficulty of securing the attendance of accused persons currently living outside East Timor.
2 THE DECISION TO ESTABLISH THE COMMISSION FOR RECEPTION, TRUTH AND RECONCILIATION
The origins of the decision to establish the Commission in East Timor are some- what unclear. As noted above, the experiences of other countries with truth and reconciliation commissions were brought to the attention of the International Commission of Inquiry in late 1999 as one possible way of dealing with the crimes committed in that year.15 However, the International Commission’s clearly expressed view was that only the bringing to justice of those responsible, together with reparations to victims, could lead to reconciliation, and it did not recommend a national truth and reconciliation commission. A proposal for such a commission emerged during the early period of the administration of the territory by UNTAET. According to UNTAET, the proposal for the establishment of the Commission for Reception, Truth and Reconciliation was a Timorese initiative, put forward by CNRT in around June 2000.16 In August 2000, the CNRT Congress endorsed a proposal for a reconciliation commission and a Steering Committee was formed, chaired by UNTAET, consisting of representatives of East Timorese NGOs, the Catholic Church and UNHCR, to take the idea forward. Community consultations were held between September 2000 and February 2001, which apparently indicated public support for the idea. The proposal to establish the Commission on Reception, Truth and Reconcili- ation [the Commission] was certainly supported by Xanana Gusmao, then Presi- dent-in-waiting. His vision of the Commission was that it should be similar to the South African TRC, to which he referred approvingly in December 2000:
I don’t deny the need of justice. People sometimes say if you don’t punish these people you will allow a political party to do the same, because every- one now knows there is no justice. I, myself, don’t believe in this . . . Nobody in the world said to Mandela ‘your commission of truth and reconciliation is unacceptable’, everybody applauded it . . . My problem is, if you try the militia, one or two immediately, the others will not come . . . I am thinking
15 The International Commission does not indicate whether these experiences were brought to its attention by Timorese or by ‘internationals’. 16 The author has been unable to confirm this. Given the obvious temptation for the UN to present the Commission as a ‘home-grown’ Timorese process, rather than a UN initiative designed to suggest that ‘something is being done’ about the atrocities in East Timor, the issue would merit further investigation. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 238
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of a process of reconciliation here that can avoid instability in the future and one that people can accept. I will not say no justice, but in a process maybe like South Africa.17
Gusmao’s comments reflect his awareness of the concept of ‘restorative justice’ promoted by the TRC in its bid to combine the granting of amnesty to perpetrators of human rights violations with redress for victims. Gusmao advocated a similar policy of amnesty in East Timor, but his views caused consternation in a society still campaigning for retributive justice. Rejection of his views has meant that the East Timorese Commission must seek to establish the truth and promote reconciliation without the ‘carrot’ of amnesty that the TRC was able to offer. The implications of this are discussed further below. In its stated objectives, functions, powers and composition, the East Timorese Commission has some striking similarities to the TRC. The language used in much of UNTAET Regulation 2001/10 echoes the South African Promotion of National Unity and Reconciliation Act of 1995, the legislation establishing the TRC: the work of the Commission will include ‘inquiring into human rights violations that have taken place in the context of the political conflicts in East Timor’; ‘establish- ing the truth regarding past human rights violations’; ‘reporting the nature of the human rights violations that have occurred and identifying the factors that may have led to such violations’; ‘identifying practices and policies, whether of State or non-State actors, which need to be addressed to prevent future recurrences of human rights violations’; ‘assisting in restoring the human dignity of victims’; ‘promoting reconciliation’; and ‘the promotion of human rights’.18 The hearings of the Commission, like those of the TRC, will in principle be held in public.19 The Commission has a two-year mandate renewable for a further six months, similar to that originally accorded to the TRC, which the latter exceeded by over three years. A major difference between the TRC and the Commission is that, as its unusual name suggests, the Commission will deal with the reception and reintegration of refugees. In an attempt to defuse tensions arising from the return of pro-Indonesian militia from refugee camps in West Timor, individuals returning to their communi- ties ‘who have caused harm to their communities through the commission of minor criminal offences and other harmful acts’ will be able to apply to the Commission to participate in the Community Reconciliation Process, discussed further below.
17 Interview in The Age, Melbourne, 18 December 2000. 18 Section 3 of Regulation 2001/10. 19 Section 16 of the Regulation deals with ‘truth-seeking’ hearings and lays down the excep- tional circumstances in which such hearings may be held behind closed doors; the pro- visions are similar to those which applied to the TRC. Section 27 of the Regulation provides for public hearings, again with exceptions, to be held under the Community Reconciliation Process. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 239
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Successful participation in this Process will result in immunity from criminal prosecution and civil suit. Although this Process bears some resemblance to the amnesty process of the TRC in South Africa, it must be noted that the Commission will not use the Process to deal with perpetrators of serious crimes or gross viola- tions of human rights. All such cases will be referred for prosecution. The Commission’s establishment has been welcomed by the UN Commission on Human Rights, which has emphasized ‘without prejudice to efforts to address impunity through judicial remedies, the relevance of the reconciliation process . . . for the social and political stability in East Timor’.20
3 THE DISCREET CHARM OF THE TRC
It is clear that people all over the world have been fascinated by the TRC. If imi- tation is the sincerest form of flattery, then South Africa has been hugely flattered by the number and range of countries that have at least considered setting up a truth commission as a result of the South African experience. Nigeria has held its own truth commission; the FRY has established one to ‘complement’ the work of the International Criminal Tribunal for the Former Yugoslavia; Ghana has also declared an intention to hold a truth commission. In March 2001, Indonesia (then under Wahid) announced its intention to hold a truth commission loosely based on the South African model. Sierra Leone’s truth commission will start work in November 2002. Truth commissions are apparently en vogue. The East Timorese Commission is, however, only the second occasion on which the UN has given its imprimatur to a truth commission process. It previously sponsored a truth com- mission in El Salvador, with mixed results. 21 The South African TRC has undoubtedly been well ‘marketed’ by respected individuals closely identified with the TRC process, as well as by a number of authors and journalists. The danger of this is that it appears to have given rise to the notion that the TRC represents a ‘model’ which can be transplanted as a sort of ‘quick fix’ solution to other societies damaged and fractured by a legacy of gross and systematic violations of human rights. Truth commissions seem to have become part of the internationally recommended ‘toolkit’ for successful transitions to democracy; part of the ‘recipe’ for successful ‘nation-building’. They are the latest example of the globalization of institutions. This paper will take a critical look
20 Chairperson’s Statement on the Situation of Human Rights in East Timor, 19 April 2002. The statement has been criticized, inter alia, for making no reference to any possibility of an international criminal tribunal for East Timor and for ignoring the obvious problems with progress on prosecutions in Indonesia. 21 For a concise report on its work and recommendations, see the account of Thomas Buergenthal, a member of the El Salvador commission, in ‘The United Nations Truth Commission for El Salvador’ (1994) 27 Vanderbilt J of Transnational Law 497. A general amnesty was, controversially, declared in El Salvador immediately after the publication of the Truth Commission’s report. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 240
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at the work of the TRC with the aim of fostering realistic expectations of truth commissions and of countering the more facile manifestations of the ‘toolkit’ approach to legal institutions. The ‘toolkit’ approach to institutions has come under fire most recently in a major study published by Human Rights Watch,22 which examined the performance of human rights commissions in Africa. Such institutions have become a standard feature of the UN’s post-cold war good governance ‘toolkit’. Yet the HRW study concluded that in Africa, where such commissions have become almost universal, they are rarely effective in promoting or protecting the human rights of citizens of African countries and, worse, that they are often no more than ‘window-dressing’, permitting donors to believe – or at least to argue – that ‘something is being done’. The expression ‘something is being done’ has a curious resonance with the South African truth commission experience. It is often said – as if it were self- evident – that the South African TRC was set up to establish the truth and to promote reconciliation, and this uncritical acceptance of the mythology of the TRC is all too common, particularly outside South Africa. In fact, to understand why the TRC was established, it is necessary to look beyond the name of the institution and the words of the founding legislation. The transition to democracy in South Africa was a negotiated settlement between the old regime and the liberation movements, principally represented by the ANC. The accommodation finally reached by these two main negotiators included – at the eleventh hour – an agreement that amnesty would be granted ‘in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past’. This provision for amnesty was incorporated in to a post-script at the end of the South African Interim Constitution of 1993 under the judiciously selected heading ‘National Unity and Reconciliation’. It is often said that the question facing South Africa was whether to exchange justice for truth, but the real question for the ANC in 1993 was whether to exchange justice for power. The Interim Constitution that incorporated the amnesty deal did not in fact provide for a truth commission. Having done the amnesty deal, however, ‘something had to be done’ in South Africa in respect of the atrocities of the past. That ‘something’ turned out in 1995 to be the TRC. Without the provision for amnesty in the Interim Constitution, it is highly unlikely that the TRC would have been established at all.23 Under its founding statute,24 the TRC was charged with:
• hearing individual applications for amnesty from perpetrators, in public in cases of gross violations of human rights, and deciding whether amnesty
22 ‘Protectors or Pretenders: Government Human Rights Commissions in Africa’, January 2001, available at
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should be granted in each case according to criteria laid down in the found- ing statute of the TRC; • hearing the testimony of victims of gross human rights violations in public sessions held across South Africa, and receiving the written statements of many thousands more; • holding ‘institutional hearings’ enquiring into the role played by institutions such as the churches, the media, and business in the apartheid era; •making non-binding recommendations on reparations for victims; • making recommendations for the prevention of future abuses; • publishing a report on its activities. Its so-called ‘Final Report’ was published in 1998, but will be supplemented by an additional report in around January 2003.
From the history of the origins of the TRC outlined above, it will be clear that there is no direct comparison between the transitions to democracy in South Africa and East Timor. In particular, East Timor has not experienced a negotiated settlement that included amnesty for gross violations of human rights. On the contrary, it favours the prosecution of all but minor offenders. Has East Timor, with the encouragement of the UN, adopted an institution ill-designed for its own needs?
4A BRIEF CRITICAL ASSESSMENT OF THE ACHIEVEMENTS OF THE TRC
Three perceptions may be identified as crucial to the status of the TRC as an inter- national icon. In 1994, Archbishop Desmond Tutu famously referred to South Africans as ‘the rainbow people of God’ because of the differences that exist between them in skin colour, cultural heritage, language, custom and religion. One of the reasons for the iconic status of the TRC is that it is perceived as a beacon of hope for humanity. If it can help South Africa to overcome its differences, if a South African phoenix can rise from the ashes of apartheid, if a ‘rainbow nation’ can be successfully created, then, we say to ourselves, reconciliation, anywhere, is possible. Optimism has also been generated by the examples we have seen of extraordi- nary generosity of spirit on the part of deeply wounded South Africans. The moving spectacle of the parents of a murdered child embracing the murderer has been flashed around the world by the media, giving rise internationally to a warm sense of relief that the world does not consist entirely of bitterness and a desire for retri- bution, and a feeling of awed amazement at the possibility of forgiveness in the face of such suffering. The TRC process is perceived as having drawn deeply on the reserves of humanity of South African victims and assisted them to rise above the inhumanity of the past. It is perceived as a cathartic process, described by 04 Jenkins (JG/d) 6/11/02 11:41 am Page 242
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Archbishop Tutu as opening wounds and cleaning them in order to promote healing. The TRC travelled around South Africa under a banner bearing the slogan, ‘Truth: the road to reconciliation’. Another important reason for the high esteem in which the TRC is held internationally is the widespread and genuinely held perception that it brought out ‘the truth’, mainly through the confessions of perpetrators of human rights violations. Are these realistic perceptions of the TRC’s achievements, or rather a media- induced hallucination similar to the ‘feel-good factor’ of a charming but improb- able romantic movie? In the recitals to the UNTAET Regulation, the Transitional Administrator of East Timor emphasized his desire ‘to promote national reconciliation and healing following the years of political conflict in East Timor . . .’ In the light of the South African experience, how realistic is it to expect that the East Timorese Commission will achieve these ends?
4.1 Truth: The Road to Reconciliation?
Archbishop Tutu has often cited examples of cases in which the TRC succeeded in uncovering information about secret human rights violations, despite all the diffi- culties caused by the passage of time and the destruction of evidence. There is no doubt that in some cases – including a few high-profile assassinations by the security forces - this did occur, to the relief of the families concerned, who had waited years for information about the death of members of their family. Such cases were, however, exceptional – a result which is hardly surprising given the limited resources of the TRC for investigating cases and its (originally) short lifespan. There is little reason to expect that the East Timorese Commission will have greater success in this area: in fact, it is likely to have less, since many potential witnesses and suspects are outside the territory. The Regulation gives the Com- mission power to ‘request information from the relevant authorities of another country and to gather information from victims, witnesses, government officials and others in other countries’ and to hold meetings or hearings ‘with the agreement of the Transitional Administrator, at a location . . . outside East Timor’,25 but political co-operation from Indonesia will clearly be essential to the effective utilization of these powers. More commonly, it is argued that the TRC provided a forum for the acknowl- edgement of wrongs done;26 yet it must be noted that this acknowledgement rarely came from the perpetrators themselves, but rather from the TRC itself, from the community of victims or survivors and, to some extent, from the reaction of society
25 Section 14(h) and (k). 26 See e.g. A. du Toit, ‘The Moral Foundations of the South African TRC: Truth as Acknowledgment and Justice as Recognition’, in R. I. Rotberg and D. Thompson (eds.), Truth v Justice (2000). 04 Jenkins (JG/d) 6/11/02 11:41 am Page 243
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at large. Little research has been done on the impact on victims of this form of acknowledgement, which might in principle be thought ‘second-best’. In the case of East Timor, some provision has been made for apology by perpetrators of minor crimes under the Community Reconciliation Process. Acknowledgment of the com- mission of gross violations will again depend to a large extent on the co-operation of Indonesia. In South Africa, the oral testimony of victims was undoubtedly immensely powerful and revealed what might be called the ‘emotional truth’ of the impact of the violations on victims. Whilst it is hard to imagine that anyone could remain unmoved by such testimony, yet this may underestimate the human capacity for the denial of uncomfortable realities, or at least our capacity for an adequate response.27 The characterization of the TRC in some quarters in South Africa as ‘the Kleenex Commission’ is a graphic illustration of the defensive, dismissive response it elicited from those unwilling to consider the issues of responsibility raised. Whatever the shortcomings of the TRC’s amnesty process, the truth revealed by the perpetrators in their amnesty hearings – particularly those relating to gross violations – was less easily deniable and equally painful in a quite different way, for it raised questions about human nature, cruelty, obedience and indifference. None of these questions are new, but the revival of interest in them may be thought important, especially at the dawn of a ‘new order’ in which it is sought to establish a culture of human rights. In East Timor, however, the Commission will not hear the perpetrators of serious crimes under a TRC-style amnesty process; its truth will be the truth of the victims, not of the perpetrators.28 The TRC attempted to provide a ‘truthful’ historical account of human rights violations in the apartheid era that would both raise awareness of what took place and prevent denial or revisionism. This has inevitably provoked debate amongst historians, politicians and lawyers about the accuracy of the record produced and, in particular, about its allegedly partisan nature.29 The philosopher Felipe Fernandez- Armesto has observed that ‘[H]istory is like a nymph glimpsed bathing between leaves: the more you shift perspective, the more is revealed. If you want to see her whole, you have to dodge and slip between many different viewpoints.’30 Objectiv- ity, then, becomes ‘the result of compiling or combining all possible subjective points of view.’31 The provision of a platform for the expression of those different viewpoints is an extremely important function of a truth commission, however
27 For a thoughtful reflection on this, see S. Cohen, States of Denial: Knowing About Atrocities and Suffering (2001). 28 On this distinction, see Max du Preez in his introduction to Wendy Orr’s account of her experiences as a TRC Commissioner, ‘From Biko to Basson’. 29 See, for example, C. Bundy, ‘The Beast of the Past: History and the TRC’ and C. Villa- Vicencio, ‘On the Limitations of Academic History: The Quest for Truth Demands Both More and Less’, in James and van der Vijver (eds.), After the TRC: Reflections on Truth and Reconciliation in South Africa (2000). 30 F. Fernandez-Armesto, Truth: A History and a Guide for the Perplexed (1997) 228. 31 Ibid. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 244
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provocative, contested or troubling those viewpoints may be, for it constitutes a crucial early experience of the tolerance required to guarantee freedom of expres- sion in a democracy. The subsequent work of compiling or combining those view- points, which requires judgement and discretion, is all the more liable to be criticized. It may be partly for this reason that the process of the TRC was more powerful than the lengthy Report in which it culminated.32 Like the TRC, the Com- mission is likely to be hard-pressed to complete its report on time; it would there- fore be desirable to give careful thought at an early stage to the manner in which its report should be compiled. A 1997 cartoon published in the Sowetan newspaper in South Africa showed Archbishop Tutu standing on the edge of a cliff marked ‘Truth’, looking with a puzzled expression at the map in his hand and then across a gaping chasm towards an opposing cliff marked ‘Reconciliation’. In reality, the connection between truth and reconciliation proved elusive. A public opinion survey commissioned by a national newspaper in 1998 indicated that South Africans were deeply divided on whether the TRC process had improved or harmed race relations in the country.33 The work of the TRC did, however, stimulate a debate in South Africa about the meaning and prerequisites of reconciliation. This will be of equal importance and perhaps even greater difficulty in East Timor. The Commission can benefit from South Africa’s experience by clarifying what it hopes to achieve in terms of reconciliation before, rather than after, its work is done. In South Africa, support- ers of the TRC have been forced back on to the argument that the TRC was only supposed to ‘promote’ reconciliation, rather than to achieve it – a retreat from the high expectations originally raised.
4.2 No Reconciliation Without Justice?
In the light of its wide power to grant amnesty, the TRC clearly could not claim to be an institution concerned with dispensing ‘justice’ in the retributive sense in which it is traditionally understood. The TRC and its proponents advanced the concept of ‘restorative justice’ to explain and give legitimacy to the process. Commentators
32 The 1998 Report of the TRC, written in English, consists of five volumes; it was sold for a price that exceeded the means of most South Africans. Although the TRC had originally intended to publish a succinct version in different official languages at a cheaper price, this was never done. 33 For a discussion of the results of the survey, see ‘The TRC Has Harmed Race Relations: Survey’, South African Press Association [SAPA], 27 July 1998, available at the TRC website,
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have disagreed on the validity and value of this conceptual approach.34 In East Timor, in the light of the Commission’s very limited amnesty powers, the issue will arise only in connection with the Community Reconciliation Process, through which perpetrators of minor offences can obtain immunity from prosecution and civil suit. In regard to these offences, East Timor has apparently taken the view that ‘justice’ can be done through a process which does not involve the courts, fines, imprisonment or damages but, rather, requires the offender to perform ‘an act of reconciliation’ to be decided by the Commission. This is discussed further in the following section. Based on the experience of South Africa, however, the Commission should not assume that all those eligible for immunity under the Community Reconciliation Process will apply for it. In South Africa, many potential amnesty applicants did not come forward. The key factor influencing the decision to apply appears to have been the applicant’s perception of the likelihood of prosecution. Some 90 per cent of amnesty applicants, mostly black, were already in prison. White amnesty appli- cants were generally foot soldiers who had either already been prosecuted or had good reason to fear imminent prosecution. No former cabinet ministers from the apartheid era applied for amnesty for gross violations of human rights. The TRC was unsuccessful in securing the attendance before it of the one person whom many would have wished to see and hear: former president P.W. Botha. In East Timor, it is difficult to see what incentive there will be for returning militia to apply for the Community Reconciliation Process, given the remote prospect of prosecution. In light of the South African experience, it might have been wise to allow the Process to be instituted by victims or communities, rather than only by perpetrators. Despite threats that those who did not apply for amnesty from the TRC would be prosecuted, no significant prosecutions of those who failed to apply have been commenced since the expiry of the date for amnesty applications.35 In theory, at least, the outcome should be different in East Timor, where the Commission will be required to refer violations of international human rights law and humanitarian law to the Office of the General Prosecutor, ‘with recommendations for the prose- cution of offences where appropriate’.36 Such recommendations will clearly not bind the General Prosecutor. In reality, it seems most unlikely that there will
34 For a more detailed exploration of the issues, see du Toit, loc. cit.; C. Villa-Vicencio, ‘Restorative Justice: Dealing with the Past Differently’, in Villa-Vicencio and Verwoerd (eds.), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (2000); S. Wilson, ‘The Myth of Restorative Justice: Truth, Reconciliation and the Ethics of Amnesty’ (2001) 17 SAJHR 531; and, by the present author, ‘Amnesty for Gross Violations of Human Rights in South Africa: A Better Way of Dealing with the Past?’, in Edge (ed.), Comparative Law in Global Perspective (2000) [web version available at
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be large numbers of prosecutions. The South African experience illustrates the startling speed with which today’s pressing problems and a shortage of resources can affect the willingness of a government to conclude the business of dealing with the past. The TRC’s decision not to recommend lustration – which could have prevented those found to be responsible for gross violations from holding public office – has meant that, in some cases, those who have confessed to torture have been allowed to remain in the police service, and that P.W. Botha has been able to re-enter politics, albeit at the local level. It is not immediately clear from the mandate of the East Timorese Commission whether it is empowered to make recommendations on this issue.
4.3 Reparations: The ‘missing link between truth and reconciliation’?37
With the major focus on the question of truth-seeking, the question of reparations in material form – pensions, compensation, scholarships, for example – was left in the air by the TRC’s founding statute, which provided only for the TRC to make recommendations to Parliament on the issue. It was perhaps not at that time anticipated that an ANC-led government would have any difficulty in approving the TRC’s recommendations, but, five years later, the government did in fact reject its proposals for final reparations as too expensive. Though some material compensation has been paid, this result remains a great disappointment both to victims – particularly those whose rights have been extinguished by the amnesty process – and supporters of the TRC process. The importance of reparations was undoubtedly under-estimated in South Africa and was perhaps the ‘Achilles’ heel’ of the entire process, which claimed to be ‘victim-centred’. In East Timor, with the continuing focus on the importance of prosecutions, the issue of reparation in a wider sense is also in danger of being overlooked. The position is further compli- cated by the fact that responsibility for many violations lies at the door of the Indo- nesian state. Agreement must be sought urgently with Indonesia on reparations to East Timor, which could include compensation for East Timorese victims of serious violations. This is an area in which the international community could usefully apply pressure on Indonesia. As in the case of South Africa, the question of reparations for East Timorese victims of gross violations is not dealt with in any detail in the founding document of the Commission. The provision of reparations to such victims is not listed among the objectives of the Commission. Regulation 2001/10 provides only that:
The final report shall summarise the findings of the Commission and shall make recommendations concerning the reforms and other measures, whether legal, political, administrative or otherwise which could be taken to achieve
37 The quotation is from W. Soyinka, The Burden of Memory, the Muse of Forgiveness (1999) 35. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 247
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the objectives of the Commission, prevent the repetition of human rights violations and respond to the needs of victims of human rights violations.38
It is essential that the needs and wishes of those affected by gross violations should be properly examined and addressed.39 The lack of any proper procedure under the regulation for consulting such victims about their needs and wishes, for providing urgent relief or for implementing any recommendations made by the Commission is highly unsatisfactory and risks replicating what was perhaps the worst failure of the TRC. In East Timor, the question of reparation will also arise in connection with the proposed Community Reconciliation Agreements (CRAs) to be brokered by the Commission.40 These will provide immunity from criminal prosecution and civil suit for offences such as theft, minor assault, destruction of crops or livestock and arson (other than that resulting in death or personal injury), provided that the offender performs an ‘act of reconciliation’ determined by the Commission within a speci- fied time limit. The Regulation provides that such acts of reconciliation may include community service, reparation, public apology and/or other acts of contrition.41 It is the Commission which will determine the nature of the ‘act of reconciliation’ and not the victims, who will be heard by the Commission, but whose views – as in the TRC amnesty process – will carry no binding force. It should be noted that CRAs will be agreements only between the Commission and the offender, who must agree to undertake the act of reconciliation recommended if an agreement is to be concluded and immunity earned; the consent of individual victims or communities to the agreement is apparently not required. The regulation requires that the act of reconciliation should not exceed what is reasonably proportionate to the acts/offences disclosed,42 but offers no definition of the concept of reparation, so that it remains as yet unclear how far material redress is likely to be considered appropriate by the Commission and how such redress might be calculated. There is clear potential for unhappiness on the part of victims unless their needs and wishes are taken seriously by the East Timorese Commission.
5 COMPARING COSTS AND BENEFITS
The TRC process was costly and far exceeded the budget originally allowed for it by the South African government. This was thrown into stark relief by the
38 Section 21 (emphasis added). 39 For an exploration of the requirements of international law on reparation, see, by the present author, ‘After the Dry White Season: The Dilemmas of Reparation and Recon- struction in South Africa’ (2000) 16 SAJHR 415. 40 See Part IV of the Regulation. 41 Section 27.7 42 Section 28.2 provides that the relevant District Court shall register the Community Reconciliation Agreement as an Order of the Court unless it ‘considers that the act of reconciliation specified in the CRA exceeds what is reasonably proportionate to the acts disclosed or that the CRA violates human rights principles’. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 248
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government’s later contention that the bill for reparations for victims was too expensive. The East Timorese Commission – which, despite the relatively small size of East Timor and its population, will have more commissioners than the TRC – promises to be a major undertaking in terms of salaries, costs and expenses, all of which could, of course, be put to good use in rebuilding the fabric of East Timor or in providing help and assistance to victims. The Commission will be led by the seven National Commissioners and twenty-nine Regional Commissioners distributed across six regional offices. It is expected to have an East Timorese staff of approxi- mately 270 people. The proposed budget for the Commission is close to US$4 million. Some of the early preparations for the Commission were funded by USAID; other donors, such as the Japanese government, will, it is hoped, provide funding for the Commission’s operations.43 However, the Commission will also absorb talent which, in a new nation of under a million inhabitants, is in short supply. These factors certainly demand that the Commission should perform – and be seen to perform – a truly useful function with skill and efficiency, for anything less would be rightly condemned as a waste of scarce human and financial resources.
6 RETRIBUTIVE JUSTICE, SOCIAL JUSTICE AND A CULTURE OF HUMAN RIGHTS
Perhaps the two most significant political achievements of the TRC were: (i) to ‘legitimize’ as far as possible the amnesty deal embodied in the negotiated settle- ment; and (ii) in the first years of the ‘new South Africa’, to ‘take the heat off’ the government in its struggle to provide for the economic and social needs of the people. For some three to four years, the TRC provided an alternative focus – a focus on the injustices of the past, rather than on the problems of the present. Neither of the two achievements highlighted was listed in the tasks assigned to the TRC by its founding statute; equally, neither is directly connected with popular perceptions of the TRC as an instrument for the exposure and acknowledgement of truth or the promotion of reconciliation. Whilst the first achievement will be irrelevant in East Timor, the second – the provision of political ‘space’ – may be highly relevant in East Timor in the light of the challenges faced by the new government. The South African experience illustrates many of the pitfalls that may lie ahead for the East Timorese Commission, and unrealistic expectations can only be dangerous. If the Commission performs its allotted tasks of hearing victims and brokering reconciliation agreements with skill and compassion, it may ultimately be considered to have justified the considerable time and expense certain to be involved. The best hope is that the Commission will provide solace to victims and
43 It is striking that Japan, which stands accused of having dealt inadequately with some of its own actions during the Second World War, including biological warfare carried out in the People’s Republic of China, should consider it appropriate to support a truth commission for human rights violations committed by others in East Timor. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 249
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promote the human rights values of dignity, accountability and redress. The worst case is that it may disappoint and anger victims and contribute to a heightened sense of injustice. In between lies the possibility of a Commission which does no significant good or harm and which simply comes to be regarded as an expensive irrelevance. The Commission will need to work hard now to prevent this last outcome. It has been surprisingly slow in starting work: the Steering Committee had hoped that it would be up and running by January 2001. Mari Alkatiri has expressed the hope that the main achievement of the Commission will be the return of refugees.44 However, whilst the Commission has remained on the drawing board, UNTAET and UNHCR have made very considerable progress on the issue: since October 1999, more than 200,000 refugees and deportees have voluntarily returned home. Approximately half of the remainder has registered for repatriation since the election of Xanana Gusmao as President on 14 April 2002.45 Those who have not registered are likely to be those most reluctant to return because of their past actions. To many of them the Commission will be an irrelevance, since they will not be eligible for its Community Reconciliation Process because of the serious nature of their crimes. The Commission seems likely, now, to have only a residual role in encouraging the return of refugees. Ideally, it should play a significant role in preventing revenge attacks and assist- ing the reintegration of returnees into their communities. Fears of ‘rough justice’ being dispensed by ‘people’s courts’ in communities to which refugee militiamen have already returned have prompted calls for the Commission to commence work urgently.46 However, the Commission cannot compel returning refugees to use the Community Reconciliation Process. Further, although the Commission can hold ‘truth-seeking’ hearings in any community, it will not be able to use the Community Reconciliation Process in cases of serious crimes, but could only refer these cases for prosecution – a dim and distant prospect. Ironically, East Timor looks set to become a country in which the desire for prosecution and punishment, and the consequent unwillingness to allow the Commission to deal with serious cases, may result in many perpetrators of serious crimes and human rights violations not being dealt with at all. One possible response to this danger would be to review the mandate of the Commission and, in particular, to extend its jurisdiction under the Community Reconciliation Process. At present, however, the efforts of human rights activists both within and outside East Timor are still largely concentrated on the pursuit of retributive justice. Calls for an international criminal tribunal continue to be made. Although the international community could undoubtedly have done much more to assist the Timorese with prosecutions, it must be recog- nized that even an international tribunal would only deal with the most serious cases.
44 Interview with the author, n.13 above. 45 ‘Half of Remaining Refugees Said Ready to Return Home’, 29 April 2002, available at
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The South African survey statistics quoted at the beginning of this paper suggest another warning: that a truth commission which is accompanied by political change, but not by meaningful social change and economic development, may have little impact on the everyday lives and attitudes of those whose dignity it purports to restore. This must be a serious concern in East Timor, which looks set to face serious economic and social difficulties in the years ahead. Xanana Gusmao has clearly recognized the tension between criminal justice and social justice in a poor country where many people ‘live with 50 cents a day’. In his view, the overwhelming priority must be to improve living standards:
We fought, we suffered, we died, for what? To try other people or to receive benefits from independence? . . . As President, my priority is how to give our people the opportunity to see the benefits of independence.47
Like Nelson Mandela, Gusmao commands respect as a result of his own suffering in the cause of independence, but East Timor has proved less fertile ground than South Africa for such a message to take root. Jovito Araujo, a Catholic priest and deputy chairman of the Commission, says that the Timorese are not a people who find it easy to forgive:
They keep everything a long, long time. Especially revenge. They will not forget something that hurt them. They will keep it going a very long time, generation to generation.48
Araujo himself criticizes the TRC, which he feels is not a good example for East Timor:
It lets people exchange reconciliation with amnesty. It means that you can live free, free from your guilty deeds, your sin, but this freedom cannot bring to life those who have been killed, or save that broken family that you caused. You cannot bring back everything.49
A major challenge for the Commission must surely be to help Timorese come to terms with the unbearable truth: that nothing, not even criminal prosecutions, can bring back those they have lost.
47 ‘East Timor puts justice to one side’, The Australian, 4 May 2002. 48 ‘East Timor: Never Forgotten, Though Maybe Forgiven’, Sydney Morning Herald, 7 May 2002. In a vivid metaphor in the same interview, Araujo said he sometimes felt that Christianity had touched the Timorese ‘only as deeply as the batter around a pisang goreng [fried banana].’ 49 Ibid. 04 Jenkins (JG/d) 6/11/02 11:41 am Page 251
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7 CONCLUSION
At the inauguration of President Nelson Mandela in 1994, Archbishop Tutu prayed for what he called ‘a true patriotism’, so that a land of different races, languages and cultures might become ‘a land of laughter and joy, of justice and reconciliation, of peace and unity, of compassion, caring and sharing.’ For all its faults, and despite the (perhaps inevitably) limited success implied by the survey results with which this article commenced, the TRC did demonstrate the possibility of progress towards ‘bridging the divide’ peacefully in a post-conflict society. It facilitated the beginnings of dialogue between former opponents, between victims and perpe- trators; through its special hearings into the role of different institutions in the apartheid era, it attempted to promote understanding; through living examples of pain, grief and cruelty, it encouraged reflection on responsibility for past wrongs, whilst at the same time supporting the possibility of forgiveness; it understood the need for redress, but did not seek to punish. In all these ways, and by the com- passion and concern of its Commisioners, it offered hope for a better future. The East Timorese Commission now has the opportunity to set a similar example and to promote the values which will encourage a culture of human rights to take firm and lasting root in East Timor. At its best, as Juergen Habermas has observed, the search for truth ‘is a collective enterprise, in which we learn from each other’; it ‘has merits which so far have been insufficiently praised: it is humane, undogmatic, solidly rooted in tradition, optimistic and, in effect, good for the individual who practises it and the society which benefits from it.’50
50 See Fernandez-Armesto, op. cit., 222.