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.