Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (28 page)

At a local level this lack of early consultation and respect led to a refusal to cooperate by these national organizations when later approached, a situation which severely hampered both community relations and the progress of investigations.
[25]
In particular, early SCIU investigations were criticized for failing to focus on the systematic nature of the violations that had occurred during 1999 and the role played by the Indonesian military apparatus, instead treating them as individual criminal cases, which was reflected in the fact that initial indictments included only ordinary domestic charges of murder, rather than crimes against humanity.
[26]

In mid‐2000 UNTAET established Special Panels of the
Dili District Court to try cases of “serious criminal offences”.
[27]
It was intended that they could “reconcile the need for expeditious prosecution and trial of serious crimes with the requirement of ensuring experience and expertise in the process”, given “the potential impact on the reconciliation process both within East Timorese society and between East Timor and Indonesia.”
[28]
The idea was drawn from the only other UN
peacekeeping mission that was also acting as a temporary governing authority, the UN transitional administration in Kosovo, which was planning to establish a specialized mixed War and Ethnic Crimes Court, although that proposal never in fact proceeded.
[29]
In Timor Leste as in Kosovo, there was no possibility of creating a hybrid court by treaty as was subsequently done in Sierra Leone and Cambodia, as there was no independent national government with whom to contract; it was simply a matter of national legislative action, albeit exercised by the United Nations. The mixed jurisdictional basis for the creation of the Special Panels arose both from UNTAET's power as territorial ruler after the withdrawal of the de facto occupying power, as well as from
universal jurisdiction over crimes against humanity on behalf of the international community.
[30]

The UNTAET regulation stated that each Special Panel was to be composed of two international judges and one East Timorese judge, with similarly constituted panels of the Court of Appeal.
[31]
Two panels were constituted, along with the Appeals panel. These judges were selected by a Transitional Judicial Services Commission, but its home within a UN peacekeeping mission saw the recruitment process bound by bureaucratic requirements. None of the judges chosen had any background in international criminal law, or in some cases even criminal law. While one of the first judges appointed was from Portuguese‐speaking Brazil, as the primary language of East Timorese lawyers was Indonesian and it was difficult to find appropriate interpreters, this judge found it easier to work in English. As was the case throughout the new judicial system, the Special Panels had no administrative or research support, and were funded from the meagre trust fund established for the reconstruction of the nation by voluntary contributions from international donors, leading to frequent staff turnover and consequent disruption and delays. Conceptually, the Special Panels were clearly part of the
national
court system, albeit a transitional one. Furthermore, they were established as part of what can also be seen as a little used and much maligned formal justice system, which for many East Timorese remained quite separate from their daily experiences with traditional village‐level justice mechanisms.

The reliance on international involvement that characterized the recruitment of judges, prosecutors and investigators, however, was not matched in the other aspects of the Special Panel system. A small Public Defenders' Office was initially staffed only by several young East Timorese lawyers with minimal resources, who were also handling all basic legal assistance in matters before the ordinary courts. While some additional defense lawyers were seconded by international NGOs, it was
not until late 2002 that a separate Serious Crimes Defense Unit was established by UNMISET (UN Mission for Support for East Timor), UNTAET's successor mission. International staff members within the unit soon reported no interaction with the East Timorese defense lawyers working on ordinary crimes, who seem to have lost what limited interest they may have had in defending those accused of serious crimes.
[32]
Similarly, only minimal attention was ever paid to court administration and chambers support for the Special Panels.
[33]
After sustained criticism of the functioning of the Special Panels, in late 2002 UNMISET finally created a small support unit for the judges, including researchers and translators, composed almost entirely of international staff.

The law applied by the Special Panels was also a hybrid, as the Indonesian laws previously in force continue to apply, subject to any inconsistency with international human rights law and any laws subsequently made by UNTAET.
[34]
The jurisdictional scope of the Special Panels included the international offences of war crimes, crimes against humanity, genocide and torture (whenever and wherever they occurred), and the national crimes of murder and sexual offenses that occurred within the territory of East Timor between January 1, 1999 and October 25, 1999. The definitions of the international crimes, as well as the modes of criminal liability and defenses, were adopted largely verbatim from the
ICC Statute.
[35]
The definitions of the national crimes came from the Indonesian Penal Code. An UNTAET transitional criminal procedure code applied to both serious and ordinary criminal proceedings, that itself was a combination of civil and common law as well as elements from the ICC Statute and Rules of Procedure. In addition to the legal confusion, hearings were frequently conducted in all the four official languages of the Special Panels (Portuguese, English, Tetun and Indonesian).

In summary, it is important to note that the creation of the Special Panels and what became the Serious Crimes Unit (SCU) was not an integrated process based on any prior planning; it was a series of ad hoc responses to a crisis situation. The two organs developed quite separately, and never really functioned as a single institution. Nor is there evidence of any meaningful consultation between UNTAET and the East Timorese authorities at the time, and the subsequent lukewarm support for the Special Panels from key Timorese decision makers suggests a lack of any clear policy towards national prosecutions both at the time and since. The pressures to develop a functioning national court system at the same time as demonstrating that serious crimes were being dealt with contributed to poorly planned integration of the investigative and judicial organs of what ultimately became the Special
Panels. While it is not surprising that investigations commenced first, there was no structure within which they were supposed to fit for many months. Similarly, the continuation of the disparity between the attention and resources paid to the development of the SCU on the one hand, and the court system and provision of defense services on the other hand (even once a structure had been created), has led to critical credibility problems of the process as a whole. Furthermore, whereas in Sierra Leone the Truth and Reconciliation Commission was part of the political settlement of the conflict and predated the plans to create the Special Court, in Timor Leste the process was reversed. This has meant that the Special Panels and the criminal investigations of serious crimes have enjoyed at best an ambiguous relationship with political settlement efforts. The attempts to induce senior militia leaders to return from West Timor, along with the East Timorese refugees in camps under their control, have often seemed to contradict and
undermine the SCU's commitment to accountability.
[36]

Slightly over four years after it was established, the SCU came to an end in May 2005 after the Security Council mandate for
UNMISET finally concluded. Investigations were stopped in November 2004 and the final trials completed before the
Special Panels in April 2005. However, this was a completion date necessitated by the lack of support to continue, and many investigations were simply unable to be completed before the Security Council imposed deadlines. A total of 95 indictments were issued against 391 individuals. Of the 101 defendants that came before the Special Panels, 87 received final verdicts, with the remaining cases either withdrawn or dismissed.
[37]
In comparison with other international criminal tribunals this seems like a remarkable achievement in many respects. While initially most of the indictments contained isolated charges of murder only against seemingly unconnected individuals, this was primarily due to the need to process detainees who had been in custody for long periods while the major investigations were still continuing. The vast majority of those early indictees were low‐level militia members, often illiterate peasants whose circumstances meant that poverty or lack of other options made them vulnerable to recruitment – forced or otherwise – into the plans of the Indonesian armed forces. The long‐term nature of the occupation and the popular resistance to it also meant that many of these young men or old farmers who appeared in court, testified as to their concurrent role in the clandestine resistance movement and emphasized their lack of choice. Only one former
member of the resistance guerilla force,
FALINTIL, has been indicted and was one of the first to be tried and convicted. Since those early months, however, the majority of the indictments ultimately issued included charges of crimes against humanity, on counts such as murder, persecution, inhumane treatment, torture and several major rape cases. The progress of the investigations higher up the chain of command also led to many of the later indictees being members of the Indonesian armed forces or senior militia leaders, culminating in the indictment of General Wiranto, the former head of the Indonesian military.

Despite the inclusion in the subject‐matter jurisdiction of the Special Panels, no indictments included charges of
genocide or war crimes. Characterizing the atrocities during this period as war crimes
was legally more difficult given that one of the parties (FALINTIL) to the conflict had remained cantoned during 1999.
[38]
While references to genocide had been made during the Indonesian occupation, none of the reports or investigations found evidence of genocidal acts during 1999.
[39]

Of the 75 people convicted, several were convicted of lesser offences than those charged in the indictment and three were acquitted on all charges.
[40]
All persons tried were East Timorese. Observers expressed concern about adherence to human rights and fair trial standards, noting that many accused persons spent long periods in pre‐trial detention and that the rate of progress may in part have been due to the poor quality of the defense.
[41]

The funding and personnel support to the Special Panels and
SCU remained heavily dependent on UNMISET, which inherited the serious crimes project from
UNTAET. UNMISET's mandate was initially due to expire in May 2004, and there were protracted discussions over the future of both the SCU and the Special Panels and the completion strategy for the caseload. Both an internal review conducted by UNMISET in September 2003 and an independent report in January 2004 recommended the extension of the SCU mandate and significant ongoing support for the Special Panels.
[42]
They warned that otherwise, the Serious Crimes Project as a whole in Timor Leste would effectively collapse, as the domestic capacity had not yet reached a stage – nor were the domestic financial resources sufficient – to complete even the existing cases, let alone continue investigations.
[43]
The downsizing of the SCU began in August 2003, when offices in outlying areas were closed. The Security Council granted a reprieve of a further year, after the Secretary‐General emphasised the weak state of the justice sector in general as well as it being “essential to make progress towards completing the serious crimes process.”
[44]

With the closure of the SCU, it remains unclear whether the government of Timor Leste will also close the Special Panels.

The Commission, known by its Portuguese acronym “CAVR”, was established in July 2001. In stark contrast to the establishment of either the Special Panels or the SCU, the CAVR was the result of careful planning and consultation, which revealed a clear community demand for reconciliation that did not involve forgetting about justice.
[45]
Its seven national commissioners were selected by a Panel composed of a broad range of civil society groups, including victims' organizations, and it also had regional offices and staff. It was an independent statutory authority established to inquire into and report on human rights violations committed in the context of political conflicts in the territory between April 1974 and October 1999. Its initial two‐year mandate was extended until 2005, and its final national public hearing was completed in late March 2004. The Commission submitted its final report to the President on October 31, 2005.

The Commission was consciously designed as a complementary mechanism to the Serious Crimes process, as well as in recognition of the low capacity of the ordinary justice system. For this reason, its functions went beyond truth‐seeking and making recommendations to government. As discussed in Chapter
7
, a key function was to facilitate community‐level reconciliation by overseeing local panels, known as Community Reconciliation Procedures (CRPs), to mediate between victims and low‐level perpetrators of lesser crimes with the aim of reaching agreements that involve non‐penal forms of accountability (such as public apologies or community work). These agreements were then registered with the local court and operate as a bar to future prosecution. The CAVR did not have the power to grant amnesties and, most significantly, was never intended to deal with serious criminal offences that fell within the jurisdiction of the Special Panels.