United Nations S/2005/458 Security Council Distr.: General 15 July 2005 English Original: French Letter dated 24 June 2005 from the Secretary-General addressed to the President of the Security Council Further to my letters addressed to the President of the Security Council concerning an independent Commission of Experts to review the prosecution of serious violations of human rights in Timor-Leste (then East Timor) in 1999 (S/2005/96 and S/2005/104), I have the honour to submit to you herewith a summary of the final report of the Commission (annex I) and the full report (annex II).* The report contains a comprehensive analysis of the judicial processes in question, and a wide range of recommendations, which deserve serious consideration. In particular, I wish to draw the attention of the Council to the Commission‘s recommendations to ensure that the Serious Crimes Unit, Special Panels and Defence Lawyers Unit be provisionally retained until such time as the Secretary-General and Security Council have had an opportunity of examining the recommendations made in the report of the Commission, and to ensure the continuity of the work of those units until such time as the investigations, indictments and prosecutions of those who are alleged to have committed serious crimes are completed. In its resolutions 1543 (2004) and 1573 (2004), the Security Council has directed that, with the termination of UNMISET on 20 May 2005, the activities of the Serious Crimes Unit should cease. The follow-on mission to UNMISET, UNOTIL, does not have a mandate to continue or to support the serious crimes process. As I reported to the Security Council on 12 May 2005 (S/2005/310, para. 19), 10 staff of the Serious Crimes Unit have nevertheless been retained in UNOTIL until 20 June 2005, to fulfil the need for the United Nations Secretariat to preserve a complete copy of all the records compiled by the Serious Crimes Unit, as envisaged in paragraph 9 of Security Council resolution 1599 (2005). The contracts of seven of these staff have been extended until 30 June for this purpose. In this connection, I wish to inform you that several appeals are still pending that would require United Nations assistance in order to bring those trials to completion. However, any action to be taken in this regard will need to be determined by the Security Council, as UNOTIL has no mandate to continue the activities of the Serious Crimes Unit beyond preserving records. * The text of the report is being circulated in the original language only. 05-42617 (E) 190705 210705 *0542617* S/2005/458 In the light of the above, I would therefore invite the Security Council to consider the report of the Commission of Experts and the recommendations contained therein at its earliest convenience. I also wish to inform you that the report of the Commission has been made available to the Governments of Indonesia and Timor-Leste. I should be grateful if you would bring the present letter and the annex to the attention of the members of the Security Council. (Signed) Kofi A. Annan 2 S/2005/458 Annex I [Original: English] Summary of the report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 1. In compliance with the request of the Security Council that the Secretary- General inform the Council of developments in the prosecution of serious violations of international humanitarian law and human rights in East Timor committed in 1999, the Secretary-General appointed a Commission of Experts on 18 February 2005. The members of the Commission were Justice P. N. Bhagwati (India), Dr. Shaista Shameem (Fiji) and Professor Yozo Yokota (Japan). The Commission was requested to report to the Secretary-General within three months. 2. According to its terms of reference, the Commission of Experts was mandated: (a) To review the judicial processes of the work of the Indonesian Ad Hoc Human Rights Court on East Timor in Jakarta and the Serious Crimes Unit and the Special Panels for Serious Crimes in Dili; (b) To assess the effective functioning of the two institutions; (c) To identify obstacles and difficulties encountered by the two institutions; (d) To evaluate the extent to which the two institutions have been able to achieve justice and accountability for the crimes committed in East Timor; (e) To consider and recommend legally sound and practically feasible measures so that those responsible are held accountable, justice is secured for the victims and people of Timor-Leste and reconciliation is promoted; (f) To consider ways in which its analysis could be of assistance to the Commission of Truth and Friendship that the Governments of Indonesia and Timor- Leste have agreed to establish and to make appropriate recommendations to the Secretary-General in this regard. 3. In preparing its report, the Commission of Experts has compiled and analysed substantial primary source materials, such as legislation, indictments, judgements, written briefs and trial transcripts, has received several responses to detailed questionnaires addressed to institutions and individuals in Indonesia and Timor- Leste and has studied observations made by United Nations trial observers and non- governmental organizations (NGOs). The Commission conducted a fact-finding mission to Timor-Leste to meet with the President of that country, officials of the national and local governments, members of the judiciary, staff of the United Nations Mission of Support in East Timor (UNMISET), victims‘ groups and NGOs. On 11 May 2005, the Commission received an invitation to visit Jakarta from 18 to 20 May 2005. The Commission accordingly visited Jakarta on 18, 19 and 20 May 2005. 3 S/2005/458 4. The Commission of Experts submitted its report to the Office of the United Nations High Commissioner for Human Rights on 26 May 2005. The report describes the terms of reference and methodology of the Commission, identifies relevant principles and international standards and provides a historical overview of the events of 1999 and the establishment of the judicial processes in Jakarta and Dili. It contains comprehensive analyses of the two judicial processes and sets out findings in relation to the Commission‘s terms of reference. The Commission considers available judicial initiatives and mechanisms and presents its recommendations on the most feasible mechanisms to ensure that justice and accountability are secured for the people of Timor-Leste. Its findings and recommendations are briefly summarized below. Serious Crimes Unit, Special Panels for Serious Crimes and Defence Lawyers Unit (Timor-Leste) 5. The Serious Crimes Unit (SCU) and Special Panels for Serious Crimes (Special Panels) were established in 2000 by the United Nations Transitional Administration in East Timor (UNTAET) to conduct investigations, prosecutions and judicial proceedings relevant to crimes against humanity and other serious crimes committed in East Timor. The Defence Lawyers Unit (DLU) was established in 2002 by UNMISET. SCU is legislatively subordinate to the Office of the General Prosecutor of Timor-Leste. The Special Panels operate within the District Court of Dili and are composed of two international and one Timorese judge. 6. All SCU investigations were concluded in November 2004, in accordance with Security Council resolutions 1543 (2004) of 14 May 2004 and 1573 (2004) of 16 November 2004. The mandate of SCU will formally terminate on 20 May 2005. The Council has underlined the need for the United Nations Secretariat, in agreement with the authorities of Timor-Leste, to preserve a copy of all the records compiled by SCU. 7. Since SCU commenced its work in 2000, 95 indictments have been filed with the Special Panels, indicting 391 persons. At the time of the finalization of the present report, there are charges pending against 339 accused individuals who remain at large, outside the jurisdiction of Timor-Leste. Among them are the former Indonesian Minister of Defence and Commander of the Indonesian National Military (TNI), Wiranto, six high-ranking TNI commanders and the former Governor of East Timor. To date, the Special Panels have issued 284 arrest warrants. The arrest warrant for Wiranto is still in the hands of the General Prosecutor of Timor-Leste, who has not forwarded it to Interpol. 8. The Commission of Experts finds that the serious crimes process in Timor- Leste has ensured a notable degree of accountability for those responsible for the crimes committed in 1999. Investigations and prosecutions by SCU have generally conformed to international standards. The Special Panels have provided an effective forum for victims and witnesses to give evidence. The number and quality of some of the judgements rendered is also testimony to the ability of the Special Panels to establish an accurate historical record of the facts and events of 1999 during the short duration of its work. In general, the decisions of the Special Panels will assist in establishing clear jurisprudence and practice for other district courts dealing with serious crimes in the future. In addition, the Special Panels have developed their own jurisprudence, departing from the law of other international criminal tribunals 4 S/2005/458 whenever appropriate. The serious crimes process has also significantly contributed to strengthening respect for the rule of law in Timor-Leste and has encouraged the community to participate in the process of reconciliation and justice. The existence of an effective and credible judicial process, such as the Special Panels, has also discouraged private retributive and vengeful attacks. 9. However, there is frustration among the people of Timor-Leste about the inability of the judicial process to bring to justice those outside the country‘s jurisdiction, particularly high-level indictees. Similarly, there is concern that the overwhelming majority of offenders convicted by the Special Panels are from Timor-Leste.