Traditional system of dispute resolution for Timor Leste

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.