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The Failure of the Serious Crimes Trials in East Timor

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The Failure of the Serious Crimes Trials in East Timor ‘Justice on the Cheap’ Revisited: The Failure of the Serious Crimes Trials in East Timor DAVID COHEN AISSUESsiaPacific Analysis from the East-West Center SUMMARY From 2000 to 2005, a UN-sponsored tribunal in East Timor No. 80 May 2006 sought to achieve accountability for violence associated with the 1999 vote for The East-West Center is an education and independence from Indonesia. Despite criticism of the tribunal’s performance, research organization established by the U.S. Congress in 1960 to strengthen relations and the UN has maintained that it was a success. In fact, the East Timor tribunal understanding among the peoples and nations of Asia, the Pacific, and the United States. The represents a virtual textbook case of how not to create, manage, and admin- Center contributes to a peaceful, prosperous, and just Asia Pacific community by serving ister a “hybrid” justice process. It was handicapped from the beginning by a as a vigorous hub for cooperative research, education, and dialogue on critical issues of debilitating lack of resources, an unclear mandate, inadequate recruitment, common concern to the Asia Pacific region and the United States. Funding for the Center ineffective management by a peacekeeping mission that had other priorities, comes from the U.S. government, with addi- tional support provided by private agencies, and above all a lack of political will both at UN headquarters and at the individuals, foundations, corporations, and the governments of the region. mission level. Trial practices and jurisprudence were too often deeply flawed, The Asia Pacific Issues series contributes to the Center’s role as a forum for discussion in important respects did not meet international standards, and, in a signifi- of issues of regional concern. The views expressed are those of the author and not nec- cant number of cases, undermined the rights of the accused to a fair trial. essarily those of the Center. Because the UN risks repeating some of the same mistakes in Cambodia, it is particularly important now to assess the failings of the East Timor trials. 2 Analysis from the East-West Center Introduction Indictees at large in Indonesia In August 2002, I reported in this series on serious The Serious Crimes Unit filed 95 Indictments against flaws in the trials underway before the UN’s Special 391 persons. Under the leadership of Deputy Panels for Serious Crimes in East Timor.1 In the in- Prosecutor General for Serious Crimes Siri Frigaard tervening two and a half years until the closing of the from 2002 to 2003, prosecutorial strategy shifted away from a focus on low- and mid-level Timorese militia Special Panels in May 2005, substantial attempts were members toward indictment of high-ranking Indo- made to improve the performance of the tribunal. nesian military officers suspected of organizing or This paper will assess the effectiveness of these mea- ordering the violence. Without this move against those sures in meeting international standards and provide bearing greater responsibility for crimes against humanity, the legitimacy and credibility of the work of 2 an assessment of the trial process as a whole. It will the Special Panels and the Serious Crimes Unit might also indicate how lessons learned from the East Timor have been severely undermined. The continuing exis- experience are important for the new Khmer Rouge tence of those indictments and arrest warrants also Tribunal now being created by the UN and the offers hope, however remote, for accountability in the future. The reason for the discrepancy between the Cambodian government. large number of suspects indicted (391) and the mod- Lessons learned May 20, 2005, marked the end of the five-year est number of accused actually brought to trial (87) is from East Timor UN Peacekeeping Mission in East Timor that aimed that the vast majority of those indicted reside in Indonesia. to set this new nation on the path to democracy and are important for The issuance of an arrest warrant against General stability. The Security Council had also mandated the the new Khmer Wiranto in May 2004 by Special Panels Judge Phillip mission to achieve accountability for the estimated Rapoza resulted in a complete breakdown of coopera- Rouge Tribunal 1,400 or more murders and the widespread destruc- tion between the Serious Crimes Unit and the Prose- cutor General of East Timor. The Timorese government tion associated with the September 1999 referendum refused to request INTERPOL to issue an international that effectively ended the illegal 25-year Indonesian arrest warrant against Wiranto, effectively ending the occupation of this former Portuguese colony.3 This effort to use this mechanism to exert pressure on violence, which drove more than half of the popula- Indonesia. Some two weeks after the issuance of the warrant, Xanana Gusmao, the President of East Timor, tion from their homes, was carried out by Timorese flew to Bali and warmly embraced his “dear friend” militias organized, financed, trained, equipped, and General Wiranto in front of assembled journalists and assisted by the Indonesian Armed Forces. photographers. The Special Panels for Serious Crimes justice system, made this one of the first so-called In 2000, the UN Transitional Administration in “hybrid tribunals,” designed to provide a new model East Timor (UNTAET) created the Special Panels for for international justice. Serious Crimes within the Dili District Court and Trials began in 2000, with inexperienced Timor- the Serious Crimes Unit (SCU) under the Timorese ese public defenders (all recent law school graduates) Prosecutor General’s Office, to try those responsible and a small group of international lawyers represent- for “serious crimes,” such as war crimes, genocide, and ing the accused against a professional international crimes against humanity. The Special Panels (and the prosecution team. Operating without a clear man- Court of Appeal) were each composed of two inter- date from the Security Council, the Serious Crimes national judges and one Timorese judge. This model Unit did not develop and implement an effective was adopted despite the fact that none of the Timor- overall prosecutorial strategy until early 2002. Because ese appointees had any previous judicial experience of the inadequacies of the defense and numerous or training. The decision to employ mixed panels of other critical shortcomings in the trial process in the national and international judges, and to embed the period leading up to Timorese independence in May UN tribunal within the new, UN-created Timorese 2002, the UN faced severe criticism, both domestic 3 Analysis from the East-West Center and international. Recognizing these inadequacies, same critical criteria to the Dili trials as they did to the UN made substantial attempts from 2002 to those in Jakarta.4 2005 to improve the performance of the tribunal. In contrast, this paper argues that the performance There were significant improvements in critical of the UN in East Timor represents a virtual text- court functions, including defense, recruitment of book case of how not to create, manage, and admin- judges, and translation, and the UN Secretary Gen- ister a “hybrid” justice process. Handicapped from The UN’s eral now portrays the Serious Crimes process as a the beginning by a debilitating lack of resources, an performance in East model of success. Timorese officials, however, dis- unclear mandate, inadequate recruitment, ineffective Timor represents a agree. For example, in a UN International Sympo- management by a peacekeeping mission that had sium held in Dili from April 28–29, 2005, Prime other priorities, and above all a lack of political will virtual textbook Minister Mari Alkatiri denounced the trials as hav- both at UN headquarters and at the mission level, case of how not ing been a complete waste of time and money, and the Special Panels struggled to meet the many chal- to run a ‘hybrid’ other Timorese government ministers echoed this lenges they faced. In light of these challenges, it was justice process sentiment. perhaps inevitable that trial practices and jurispru- In contrast to many ordinary citizens, Timorese dence were too often deeply flawed and in important governmental elites had never supported the trials in respects did not meet international standards despite the first place. Their top priority was not account- the best efforts of many highly dedicated partici- ability but to establish friendly relations with their pants. In a significant number of cases, including at powerful neighbor, Indonesia. This was perhaps most the appellate level, these shortcomings were serious clearly manifested in the debacle over the refusal of enough so as to undermine the rights of the accused the Prosecutor General of East Timor to forward to to a fair trial. Because the UN risks repeating some INTERPOL the arrest warrant for the Commander of the same mistakes in Cambodia, it is particularly of the Indonesian Armed Forces during the 1999 important now to assess the failings of the East violence, General Wiranto (see sidebar, p. 2). This Timor trials. policy reached its logical conclusion in 2005 with the creation of a joint Timorese-Indonesian Commission The Trials on Truth and Friendship. This discrepancy of purpose handicapped the trial process from beginning to end. From 2000 to 2005 the Special Panels conducted Under international pressure to end the impunity 55 trials, involving 87 accused. Of these, 83 were of high-ranking Indonesians accused of orchestrating convicted, but one of the four acquittals was later the 1999 violence, UN Secretary General Kofi Annan appointed a Commission of Experts to assess both the trials undertaken by the Special Panels in East Timor The Jakarta Trials and those held by Indonesia’s Ad Hoc Human Rights Court (see sidebar, p. 3). Reporting in July 2005, the In response to international pressure, Indonesia created Commission somewhat cautiously concluded that the Ad Hoc Human Rights Court in Jakarta, to try Indonesian perpetrators who had played a leading role the Special Panels trials had met international stan- in the violence.
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