Hunting down the perpetrators in E. Timor

Hunting down the perpetrators in E. Timor

Taufik Basari, Jakarta

The atrocities that occurred in East Timor in 1999 have been
recognized as gross violations of human rights that constitute
international crimes. Elements of these crimes, such as torture,
have been recognized as hostis humanis generis, or enemies of all
mankind. Consequently, such international crimes are not merely
the concerns of particular states, but they constitute
international concerns.

Although the report of the Indonesian National Commission of
Inquiry on Human Rights Violations in East Timor (KPP-HAM) on
Jan. 31, 2000 concluded that 33 individuals should be asked to
bear responsibility, including Gen. (ret) Wiranto, only 18
prosecutions where carried out in the ad hoc Human Rights Court
in Jakarta. One case is still pending on appeal to the Supreme
Court. The 17 other persons charged have already been acquitted.

The Special Panel for Serious Crimes in Dili, East Timor had
difficulties bringing Indonesian military suspects to court
because the Indonesian Government refused to cooperate. The
Special Crimes Unit in East Timor had indicted almost 400
defendants, but 303 of them remain free in Indonesia, including
General (ret) Wiranto, Lt. Gen. (ret) Kiki Syahnakri, and Maj.
Gen. Zacky A. Makarim, all of whom have never been charged in
Indonesia. Maj. Gen. Adam Damiri, Maj. Gen. Tono Suratman, and
Lt. Col. Yayat Sudradjat, were charged but acquitted by the ad
hoc Human Rights Court in Jakarta.

On Feb. 17, 2005, the UN Secretary-General appointed a United
Nations Commission of Experts to review prosecutions of serious
crimes committed in East Timor in 1999. He appointed three
experts: Prafullachandra Bhagwati (India), Yozo Yokota (Japan),
Shaista Shameem (Fiji). The decision of the UN Secretary General
to establish the commission of experts was based on three
grounds.

First, "the Security Council's conviction that those
responsible for grave violations of international humanitarian
law and human rights in East Timor in 1999 should be brought to
justice."

Second, the Security Council underlines that "the United
Nations had a role to play in this process."

Third, Security Council resolution 1573 (2004) reaffirms "the
need to fight against impunity" and asks for the UN Secretary
General's "intention to continue to explore possible ways to
address this issue and make proposals as appropriate."

After initially refusing them, finally the government allowed
the Commission of Experts to come to Indonesia on May 18-20,
2005. There is no reason for the government to have non-
cooperative policy to the work of the Commission of Experts.

The decision of the UN Secretary General to establish
Commission of Experts cannot be separated from the Report of the
International Commission of Inquiry on East Timor to the
Secretary General on Jan. 31, 2000 and subsequent follow up of
the reports.

In its response, the Security Council has stated that
according to the report, "grave violations of international
humanitarian and human rights law have been committed; those
responsible for these violations should be brought to justice as
soon as possible."

Any recommendation of the Commission of Experts can be
considered by the Security Council to make a decision. The
Security Council has power to force any UN member state to comply
with their decisions. Consequently, Indonesia and East Timor
should cooperate with the decisions of the Security Council that
may be made later.

Having international crimes as their subject, the two kinds of
courts -- the ad hoc Human Rights Court in Jakarta and Special
Panels for Serious Crimes in Dili -- should have met
international standards of justice and due process.

The fact that trials have already been held in Jakarta,
through the national ad hoc Human Rights Court, does not give the
government legitimacy to say that the international community has
no reason to "intervene" in the national judicial system.
Although there is a "principle favoring national prosecution
where possible", courts have to meet international standards
because both states, Indonesia and East Timor, and the
international community have an obligation to ensure that justice
has been done for international crimes.

If the national courts in Jakarta showed an unwillingness
and/or an inability to conduct prosecutions for international
crimes, or if the courts were intended for the purpose of
shielding the persons from criminal responsibility, or if the
prosecution had not been conducted independently or impartially,
then international mechanisms can play role in resolving the 1999
East Timor case.

Although the government will in all likelihood reject the
international mechanism, under Chapter VII of the UN Charter the
Security Council has power to compel Indonesia to comply. If this
happens, then we can truly say that there is nowhere to hide for
the perpetrators of gross violations of human rights.

The writer is a graduate student at Northwestern University,
Chicago, and a public attorney at the Legal Aid Institute of
Jakarta (LBH Jakarta). He can be reached at t-
basari20005@law.northwestern.edu.