Traditional system of dispute resolution for Timor Leste

Basilio Dias Araujo, Jakarta

Amid the initiative of the government of Indonesia and the government of Timor Leste to establish a traditional system of dispute resolution through the Commission of Truth and Friendship the terms of reference of which were signed between the two countries on March 9, 2005 in Jakarta, comes a promising signal from the International Criminal Court (ICC) prosecutors. In its Darfur report to the Security Council dated June 26, 2005 the ICC stated that the "Traditional mechanism of dispute resolution may also fulfill the need for justice".

This signal does not only open a new horizon for the international legal community to explore a new possibility to merge conflict resolution and the rule of law in addressing peace and justice, but also to explore a new ramification that a Tribal and Traditional System of Dispute Resolution may also create a new contribution and a window of opportunity to settle legal issues arising from crime driven conflicts.

However, in the same report the ICC prosecutor also issues an ambiguous statement emphasizing that "Peace and stability require public confidence in justice and the rule of law". And public trust is probably the most difficult aspect especially for Indonesia in convincing the international community that the perpetrators of the gross human rights abuses in East Timor will be brought to justice.

The idea of Indonesia and Timor Leste to establish a Commission of Truth and Friendship to avoid the establishment of an international tribunal for the crimes against humanity committed by Indonesia during its occupation of Timor Leste, may face strong resistance from international community due to Indonesia's lack of credibility.

Indonesia and Timor Leste, must, therefore, have convincing arguments to show that the Commission of Truth and Friendship is the only way to restore peace, justice and stability in Timor Leste.

There are two different angles from which to view the issue of human rights violations; from the perspective of "Justice and the Rule of Law" and "Tribal and the Traditional System of Dispute Resolution".

From the point of view of "Justice and the Rule of Law", punishment through a court of law is the best way to punish the criminals.

This system, however, solves one problem on one side of the coin and leaves the other side untouched. In cases of civil wars like what happened in 1975 -- after Portugal left the territory abruptly and irresponsibly -- the Timorese people were dragged into a civil war which ended in the death of about 60,000, killed by Fretilin, according to a United Nations report.

Many of those involved in the massacre are now members of the current Timor Leste government.

So to put it simply, Portugal should be held accountable for its negligence in abandoning the territory. Key Fretilin leaders who are now in power in Timor Leste should be held accountable for the massacre. Meanwhile Indonesia and her pro-integration militias, like Eurico Guterres, should also be held responsible for the atrocities after the referendum in 1999.

This solution would bring justice for the people, but would bring unhappiness because no one would be happy to see his or her leaders imprisoned. From this point of view, the rule of law is upheld, but the outcome is not welcomed by the people. Hence, the application of the rule of law may please the group of people in favor of the concept of the rule of law, but creates a new reaction from the parties in conflict that may lead to renewed violence.

Therefore the conclusion the principle of justice and the rule of Law applied to solve cases of civil war will only create new conflicts if not worse problems.

On the other hand, if a Tribal and Traditional System as initiated by Indonesia and Timor Leste through the Commission of Truth and Friendship is applied, there is bigger chance that it would not only restore the rule of law, but also promises peace and stability in Timor Leste in the long term.

The international community has to take the signal from Timor Leste as to why it agreed to establish the Truth and Reconciliation Commission.

The leaders of Timor Leste realize that starting a criminal court trial for Timor Leste would not only require almost all the Timorese prominent leaders now ruling Timor Leste to face trial, but also the prominent Indonesian leaders now ruling the government.

Therefore the Commission of Truth and Friendship between Indonesia and Timor Leste is the only solution that may promise peace, friendship, solidarity and good neighborliness between the two countries. It does not only solve the legal issues between the parties trough amnesty, or compensation or restitutions as suggested by the principle of the Commission of Truth and Friendship, but also promises eternal peace.

Although it sounds strange to western society, this form of conflict resolution may become the first sample in the world as stated by Timor Leste Foreign Minister Jose Ramos Horta during the Joint Ministerial Commission III between the two countries on July 8.

The United Nations Security Council is, therefore, already on the right track by stalling the Timor Leste tribunal plan (The Jakarta Post July 15, 2005) and should in no way oppose the establishment of the Commission of Truth and Friendship between Indonesia and Timor Leste for the sake of global and regional peace and stability as the main goal and spirit of the United Nations Charter.

The writer is a postgraduate business law student at Pelita Harapan University, Jakarta. He can be reached at basilioaraujo@yahoo.co.uk.