Human Rights Violations
The most detailed attempt to examine what happened to the people of East Timor under the occupation remains the work of the Commission for Reception, Truth and Reconciliation in East Timor. The Commission, known by its Portuguese initials, CAVR (A Comissâo de Acolhimento, Verdade e Reconciliação) was established as an independent statutory authority in July 2001 by the UN Transitional Authority in East Timor. It was mandated to inquire into human rights abuses committed by all sides between April 1974 and December 1999. It was also mandated to facilitate reconciliation and justice for less serious offenses.
Its official report, Chega! (Portuguese for 'enough'), was written by national and international staff of the Commission working under the direction and supervision of the CAVR's seven East Timorese Commissioners. The full report is more than 2,500 pages long. The Executive Summary of the Report is about 200 pages long.
Chega! found widespread evidence of 'crimes against humanity'. It is worth explaining briefly what this term means. Crimes against humanity are 'certain inhumane acts carried out within a specific context, namely as part of a widespread or systematic attack directed against a civilian population'.1 They are of concern to the international community as a whole, and do not fall exclusively under national jurisdiction. Unlike war crimes, the law of crimes against humanity applies even when there is no armed conflict. It protects victims regardless of their nationality, and applies to actions directed primarily against civilian populations. Unlike the Genocide Convention, the law of crimes against humanity is not restricted to crimes committed against only 'national, ethnical, racial or religious' targets.
The legal formulation of 'widespread or systematic attack directed against any civilian population' is nowadays consistently regarded as defining a crime against humanity. The widespread or systematic test is disjunctive; only one or the other threshold requires satisfaction. For an attack to be regarded as 'widespread', no numerical limit needs to be specified. It is sufficient to point to a suitably large number of victims and a large-scale attack, both of which are determined on the facts of a particular case. For an attack to be regarded as 'systematic', it must have required a high degree of coordination, which can itself be deduced from such factors as continuous commission, patterns of violence, the perpetrators' access to resources, the existence of political objectives, and so on. In establishing the existence of an 'attack', the prohibited acts do not necessarily refer to a military attack but can include mistreatment of the civilian population.2
The formulation 'attack directed' means that the random criminal acts of multiple perpetrators is insufficient to show that a crime against humanity has occurred or is occurring. There must be an element of direction, or policy. The existence of a policy to conduct the widespread or systematic attacks can be inferred from the manner in which the acts occur; if random occurrence can be shown to be improbable, the policy element will be satisfied. Policy, then, is a low threshold and need not be that of a government, nor be formally adopted, expressly declared, nor even stated clearly and precisely . The policy element can be satisfied by showing the unlikelihood of random occurrence.
If a person is accused of having committed a crime against humanity, it must be shown that he or she committed a prohibited act, that the act objectively fell within the broader attack, and that the accused was aware of this broader context. There is no requirement that the other acts committed during the attack be identical to the acts of the accused. For example, if an accused person is found to have committed enslavement in the execution of a killing campaign conducted by a State or organisation, the accused person is guilty of the crime against humanity of enslavement regardless of whether the State or organisation encouraged it; the widespread killing campaign ensures that the necessary contextual element has been satisfied. There is also a requirement that the accused must be aware of, or wilfully blind to, or knowingly take the risk of the ?broader context in which his actions occur', namely the attack directed against a civilian population.3 The accused need not share in the purpose of the overall attack; knowledge of the context, not of the motive, is the key.
When it comes to the Indonesian military in East Timor, the CAVR established that there was an underlying governmental or organisational policy that directed, instigated or encouraged these crimes.
1 Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) defined the context as 'when committed in armed conflict, whether international or internal in character, and directed against any civilian population'. Article 3 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) defined the context as 'when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds'. Article 7 of the Statute of the International Criminal Court defines the context as 'when committed as part of a widespread or systematic attack directed against any civilian population'.
2 International Criminal Court Elements, Crimes Against Humanity, Article 7, paragraph 3.
3 The International Criminal Tribunal for the former Yugoslavia, Tadic (1997) and Blaskic (2000).