Companion to East Timor - Human Rights and Justice
Human Rights and Justice - Dereitus Humanus no Justisa - Hak Asasi Manusia dan Keadilan
What is law?
Law is a framework of rules regulating behaviour; it permits certain behaviour and forbids certain behaviour. It is enforced by a controlling authority.
What is international law?
International law is the framework of rules regulating the behaviour of States. In other words, the principal subjects of international law are States, not individual citizens.
What is a State?
A State is an entity that has a legal personality, a permanent population, a defined territory, a government and the capacity to enter into relations with other States (Montevideo Convention, 1933).
What is international criminal law (ICL)?
It is a body of law that contains prohibitions on international crimes and makes people who commit these international crimes criminally responsible. ICL deals with the crimes and the procedures of investigating and prosecuting them.
What are international crimes?
International crimes are offences created by international law. They are crimes over which international tribunals have jurisdiction. The core international crimes are genocide, crimes against humanity, war crimes, torture and aggression. Other international crimes include piracy, slavery, drug trafficking, terrorism, etc. but we will not examine them here.
Who is criminally responsible for international crimes?
ICL says that individuals are criminally responsible for international crimes. The foundational statement of ICL is:
"crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced… Individuals have international duties which transcend the national obligations of obedience imposed by the individual state." (Judgement and Sentence, International Military Tribunal, Nuremberg, 1947).
What does "criminally responsible" mean?
It means that those responsible for international crimes can be legally punished.
Why are individuals punished?
Military organizations are composed of individuals who commit crimes. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) said, "By holding *individuals* responsible for the crimes committed, it was hoped that a particular ethnic or religious group (or even political organisation) would not be held responsible for such crimes by members of other ethnic or religious groups, and that the guilt of the few would not be shifted to the innocent."1 (emphasis in the original).
1ICTY, Momir Nikolic Judgement, 2 December 2003, para 60.
What are the alternatives to legal punishment?
The first alternative is to take illegal action (e.g. murder) against offenders. This is, obviously, unlawful. The second alternative is to ignore offenders. This is to "mock the dead and make cynics of the living", as Justice Robert Jackson said in 1945.
Why do we punish offenders?
There are four main reasons: retribution, deterrence, protection of the public and rehabilitation.
Retribution: Offenders are punished because they committed crimes, and not only because punishment will deter others. Offenders are respected as human beings with reason and conscience, not just as the means to an end. To point only to some greater good and not to the offenders' own conduct is to treat the offender as less than human. The ICTY said, "punitur quia peccatur (he must be punished because he broke the law)".2 Retribution is not revenge; it is not the same as 'an eye for an eye, a tooth for a tooth'. The ICTY said that retribution "is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes3 … [It is] a clear statement by the international community that crimes will be punished and impunity will not prevail."4
Deterrence: Prosecution and punishment of offenders deters others from committing similar crimes, and convinces those who are currently committing such crimes to stop. The ICTY said, "punitur ne peccatur (he must be punished so that he and others will no longer break the law)".5
Protection of the public: Punishment assures the general public that the legal system is being enforced. It helps the rules of ICL to become internalized in the minds of the public6, and creates confidence in the system of justice7. Victims may also get a sense of closure.
Rehabilitation: Punishment can reform offenders. ICL has not focused on this aspect in the case of high-level perpetrators. Young, lower-level offenders can sometimes be given lenient sentences if they are considered reformable8.
2ICTY, Furundjiza Judgement, 10 December 1998, para 288.
3ICTY, Aleksovski Judgement, 24 March 2000, para 185.
4ICTY, Momir Nikolic Judgement, 2 December 2003, para 87.
5ICTY, Furundjiza Judgement, 10 December 1998, para 288.
6ICTY, Kordic and Cerkez Judgement, 17 December 2004, para 1081.
7ICTY, Kupreskic Judgement, 14 January 2000, para 1092.
8For example, ICTY, Erdemovic Judgement, 5 March 1998, para 16.
What is international humanitarian law?
The laws and customs of armed conflict are also known as international humanitarian law (IHL). IHL is addressed to governments and other parties to a conflict. Violations of IHL can result in compensation or other forms of redress.
Why does law apply in wartime?
IHL does not seek to abolish war. It recognizes that war involves death and destruction. War is violent, and combatants are required to apply force to defeat their enemies quickly. War is chaotic, and fatal mistakes can occur under conditions of fear, fatigue and poor information. IHL recognizes that military combatants require clear, practical rules.
But IHL recognizes that the law cannot be silent during wars. The existence of armed hostilities does not create a legal vacuum.
IHL recognizes that there is a tension between military objectives and humanitarian considerations. Those who abhor war or have no experience of it may not pay attention to the military's need to achieve its objectives. By contrast, military planners may not pay attention to humanitarian considerations. IHL tries to balance military objectives and humanitarian considerations.
What are war crimes?
War crimes are serious violations of the laws and customs of armed conflict. War crimes are "grave breaches" of the Geneva Conventions, which were adopted in 1949 after the horrors of World War Two:
- wilful killing, torture or inhuman treatment, including biological experiments;
- wilfully causing great suffering or serious injury to body or health;
- unlawful deportation or transfer or unlawful confinement of a protected person;
- compelling a protected person to serve in the forces of a hostile Power;
- wilfully depriving a protected person of the rights of fair and regular trial;
- taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The law of war crimes is addressed to individuals. Violations of war crimes law can result in imprisonment, not compensation.
What are the four Geneva Conventions?
The first Geneva Convention protects wounded and sick soldiers on land during war. The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war. The third Geneva Convention protects prisoners of war. The fourth Geneva Convention protects civilians, including in occupied territory.
To which conflicts does the law of war crimes apply?
Traditionally, war crimes law has applied in international armed conflicts only. During the negotiations to the four Geneva Conventions, many states opposed their application to internal armed conflicts, preferring to deal with 'internal matters' such as rebellions without external interference. However, they agreed to include in each of the four conventions an article containing standards of behaviour in internal armed conflicts. This is Article 3. Since it is the same in all four Conventions, it is known as Common Article 3. It applies only in internal armed conflicts.
However, since Common Article 3 did not contain any "grave breaches" provisions, violations were not criminalized.
By the 1990s, internal conflicts had become more frequent and more severe, and had greater consequences for neighbouring countries. There was also greater awareness of the importance of human rights. Accordingly, the ICTY held that some war crimes provisions were applicable in internal conflicts. However, the laws of international armed conflict could not be imported in their entirety into internal armed conflicts; there was not "a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts."9
When the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR), it was dealing exclusively with an internal conflict. It therefore recognized explicitly that serious violations of Common Article 3 were criminalized for the purposes of that tribunal.
An international tribunal for East Timor would apply to grave breaches committed during an international armed conflict.
9ICTY, Tadic Appeals Chamber Judgement, 2 October 1995, para 126.
When did an international armed conflict begin in East Timor?
An international armed conflict involves: conflict between two or more states; conflict within a state in which a second state intervenes militarily; or conflict within a state in which some of the participants act on behalf of another state.10
The existence of an armed conflict does not require a declaration of war or even formal recognition by the parties that a state of armed conflict exists. The test is whether there are actual hostilities on a level that goes beyond a mere internal disturbance. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached. The Indonesian military's seizure of the village of Batugade on 7th October 1975 triggered an international armed conflict to which the 1949 Geneva Conventions applied.
Since Indonesia and Portugal were signatories to the Geneva Conventions for the duration of the conflict, the Geneva Conventions applied to any and every part of East Timor.
10Prosecutor v Dusko Tadic, ICTY Case Number IT-94-1, Appeals Chamber Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 84
When did an international armed conflict end in East Timor?
Indonesia was in sufficient actual control of the territory to be considered an occupying power until September 1999. Territory is considered occupied when it comes under the actual authority of the invading army. This occurs when:
- the occupying power is in a position to substitute its own authority for that of the occupied authorities who have become incapable of functioning properly;
- the enemy forces have been defeated or have withdrawn, although sporadic local resistance may continue;
- the occupying power has a sufficient force present to make its authority felt;
- a temporary administration has been established over the territory; and
- the occupying power has issued and enforced directions to the civilian population.
The protective provisions of the 4th Geneva Convention applied from the moment the international armed conflict began until the UN Security Council passed Resolution 1272 on 25 October 1999, establishing the United Nations Transitional Administration in East Timor. Resistance by the East Timorese people does not nullify the state of occupation.
What are the essential elements of war crimes?
They must be committed in armed conflicts (as discussed above).
They must have a nexus with the armed conflict. That is, they must be committed in the context of and associated with the armed conflict. The killing must be intended by the perpetrator to advance the interests of their military or political group or unit, otherwise it is a domestic crime incidentally committed. To show a nexus it is not necessary to show that the armed conflict was occurring at the exact time and place of the alleged offence, nor is it necessary that the offence took place during combat, that it was part of a practice officially endorsed or tolerated by one of the parties to the conflict, or that it was in furtherance of a policy associated with the conduct of war, or even in the interests of a party to the conflict.
The victim of the crime must be a protected person. Persons are "protected" under article 4 of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War if they "at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." According to the ICRC Commentary to Article 4, being "in the hands of a Party" is used in an "extremely general sense". There is no requirement that persons, in order to be considered protected, should have fallen into the power of the enemy or find themselves in the hands of a party to the conflict. The relevant test was applied in the ICTY Trial Chamber in the Tadic case: whether, at the time of the offence, the victim was directly taking part in the hostilities, that is, the hostilities in the context of which the alleged offences were committed. Protected persons can include military personnel who have laid down their weapons or have been captured.
What are crimes against humanity?
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"11. 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 in the absence of armed conflict, protects victims regardless of their nationality, and deals with actions directed primarily against civilian populations.
Since the 1990s, the concept of 'widespread or systematic attack directed against any civilian population' has emerged as the accepted formulation of a crime against humanity. The widespread or systematic test is disjunctive; a prosecutor need only satisfy one or the other threshold. In establishing the existence of an 'attack', features such as patterns, continuous commission, use of resources, planning and political objectives are important factors. The policy element is a crucial component of such a crime: an unqualified disjunctive 'widespread or systematic' test would incorrectly include widespread but unconnected crimes, such as a crime wave. The underlying principle is that unconnected random acts cannot constitute an 'attack'. Policy is a low threshold, which can be inferred from the manner in which the acts occur. Policy need not be that of a government but could also be that of an organisation. A 'policy' need not be formally adopted, nor expressly declared, nor even stated clearly and precisely. The policy element may be satisfied by inference from the manner in which the acts occur; it is sufficient to show the improbability of random occurrence.
In establishing the link between the accused and the attack, it must be shown that the accused committed a prohibited act, that the act objectively fell within the broader attack, and that the accused was aware of this broader context. The acts of the accused need not be of the same type as other acts committed during the attack. For example, if a group launches a killing campaign, and a person commits sexual violence in the execution of that campaign, the person is guilty of the crime against humanity of sexual violence. It is irrelevant whether the State or organisation encouraged sexual violence, since the necessary contextual element is already satisfied because of the attack based on killing.
In addition to the requisite mental elements for his or her particular offences, the accused must also be aware of the 'broader context in which his actions occur', namely the attack directed against a civilian population. The perpetrator need not share in the purpose or goals of the overall attack. The mental requirement relates to knowledge of the context, not motive. Jurisprudence indicates that awareness, wilful blindness, or knowingly taking the risk that one's act is part of an attack, will suffice. As the court said in R. v. Finta : 'the mental element of a crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crime against humanity'12.
11Article 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'.
121 SCR 701 at 819.
What legal processes have occurred to date in connection with war crimes and crimes against humanity in East Timor?
The United Nations Security Council twice demanded that those responsible be brought to justice. Resolution 1264 (1999) of 15th September 1999 “Condemns all acts of violence in East Timor, calls for their immediate end and demands that those responsible for such acts be brought to justice”. Resolution 1272 (1999) of 25th October 1999 “Condemns all violence and acts in support of violence in East Timor, calls for their immediate end, and demands that those responsible for such violence be brought to justice”.
Indonesia's National Commission on Human Rights:
As Indonesian forces were leaving East Timor, Indonesia's National Commission on Human Rights (Komisi Nasional Hak Asasi Manusia, or Komnas HAM) established a special team known as the National Commission of Inquiry on Human Rights Violations in East Timor (Komisi Penyelidik Pelanggaran HAM di Timor Timur, or KPP-HAM). KPP-HAM was required to submit its findings to Komnas HAM, which would provide them to Indonesia's Attorney-General for further investigation.
The KPP-HAM team was composed of leading Indonesian figures such as Marzuki Darusman, Albert Hasibuan, Asmara Nababan, Kusparmono Irsan, HS Dillon, Munir, Todung Mulya Lubis, Nursyahbani Katjasungkana and Zoemrotin K Susilo.
It paid special attention to gross violations of human rights such as genocide, massacre, torture, enforced displacement, crimes against women and children and scorched earth policies. It was empowered to investigate whether and to what extent the apparatus of State and/or other bodies, national and international, were involved in these crimes. It examined only the last nine months from January 1999 until the departure of Indonesian forces in September that year, not the 24 year occupation.
KPP-HAM commenced its investigation on 23 September 1999. It completed its report on 31st January 2000. It found 'evidence of crimes that could be classified as crimes of universal jurisdiction including systematic and mass murder; extensive destruction, enslavement, forced deportations and displacement and other inhumane acts committed against the civilian population'13.
The report urged the parliament and the government to 'form a Human Rights Court with the authority to try the perpetrators of human rights violations and crimes against humanity' that occurred 'in the past as well as those that have occurred in East Timor to the present'. It urged the 'Government and the Attorney General' to ensure that crimes against humanity were investigated and punished 'whoever is the perpetrator', in a free and independent manner 'without any interference whatsoever'.
Some years later, an international Commission of Experts appointed by the UN Secretary General found that the KPP-HAM report was a 'genuine and impartial effort to inquire into serious human rights violations, reflecting the firm commitment of its members to establish the facts'. The Commission said that its inquiry procedures 'conformed to international standards relating to pro justicia inquiries'14.
The International Commission on Inquiry into East Timor:
On 27 September 1999, the UN Commission on Human Rights condemned the 'widespread, systematic and gross violations of human rights and international humanitarian law in East Timor' and called upon the UN Secretary–General to establish an international commission of inquiry into the events of 1999. Accordingly, on 15th October 1999 the High Commissioner for Human Rights appointed the eminent jurists Sonia Picado of Costa Rica, Judith Sefi Attah of Nigeria, A.M. Ahmadi of India, Mari Kapi of Papua New Guinea and Sabine Leutheusser–Schnarrenberger of Germany to the International Commission of Inquiry on East Timor15.
This Commission reported that its members 'were confronted with testimonies surpassing their imagination'. It recommended that the UN 'should establish an international human rights tribunal' to bring perpetrators of serious violations to justice. It submitted its recommendations to the UN Secretary–General.
Thematic Special Rapporteurs from the United Nations:
From 4-10 November 1999, three United Nations thematic Special Rapporteurs visited East Timor. They were Asma Jahangir, special rapporteur on extrajudicial, summary or arbitrary executions; Nigel Rodley, special rapporteur on torture; and Radhika Coomaraswamy, special rapporteur on violence against women. Their visit was an unprecedented move, undertaken pursuant to Commission on Human Rights resolution 1999/S-4/1 of 27 September 1999, adopted at a special session on the situation of human rights in East Timor. The special session had been convened because of increasing reports of widespread violence and serious human rights violations in East Timor.
The Special Rapporteurs recommended that the Security Council should consider the establishment of an international criminal tribunal in order to bring the perpetrators to justice. They called for prosecutions of those responsible, 'both directly and by virtue of command responsibility, however high the level of responsibility'. They stated that an international criminal tribunal should be done preferably with the consent of the Indonesian government, but such consent should not be a prerequisite. Such a tribunal, they recommended, should have jurisdiction over all crimes under international law committed by any party in the Territory since the departure of the Portuguese in 1975.
The only qualification they attached to their recommendation was that the Indonesian government would have to take steps 'in a matter of months' to bring the perpetrators to justice.
The Ad Hoc Human Rights Court in Jakarta:
Under pressure from its military, the Indonesian government took its cue from this qualification. In order to avoid responsibility, it announced the establishment of a so-called Ad Hoc Human Rights Court in Jakarta. Proceedings were commenced against 18 suspects from a total of 22 identified by KPP-HAM. Ten of these 18 were military officers, five were police officers, two were civilian government officials and one was a militia leader. All 18 defendants were indicted for failing to prevent crimes against humanity, rather than for committing such crimes.
The atmosphere in the courtroom was highly intimidatory16. Witnesses enjoyed no sense of security. One of the witnesses was made to sit beside militia figurehead Eurico Guterres, himself a defendant in another trial. Indonesian military personnel enjoyed free access to the witness waiting room. A so-called 'safe house' for witnesses had a sign placed outside it announcing that it was a witness safe house. Indonesian soldiers from the units accused of committing crimes against humanity attended the proceedings of the Ad Hoc Court en masse, some of them carrying weapons whilst in the courtroom. When they were eventually called to the witness stand, witnesses were questioned for hours without respite.
Throughout the proceedings, witnesses were ridiculed and intimidated, including by the prosecution. A witness who had suffered a serious disability during an attack was laughed at by members of the prosecution and the defence. In the public gallery were a platoon of Indonesian special forces personnel who had been bussed in for the occasion. These soldiers shouted words of warning and intimidation at the witnesses and the judges during the proceedings.
Numerous credible analyses17 have demonstrated that the prosecution called witnesses who were manifestly unable to provide evidence that supported its case. It never attempted to show effective control or a superior-subordinate relationship between those who carried out the prohibited acts and those accused of having command responsibility. It made irrelevant closing submissions and made no attempt to show what the KPP-HAM Report had concluded, namely that the violence was a direct result of Government policy.
Judges received threats to their life both inside and outside the courtroom. Often, when a judge was about to deliver the verdict, armed soldiers in the courtroom would shout at them, leading them to be concerned about their own security. A judge in the Ad Hoc Court later conceded that the court had not made any significant contribution to strengthening the rule of law in Indonesia. The Ad Hoc Court was widely denounced as a sham. A Commission of Experts appointed by the UN Secretary General concluded that the proceedings were 'manifestly inadequate with respect to investigations, prosecution and trials, and … failed to deliver justice. The atmosphere and context of the entire court proceedings were indicative of the lack of political will in Indonesia to seriously and credibly prosecute the defendants'18.
Unsurprisingly, 12 of the 18 accused were acquitted at trial. All the others have since had their convictions overturned. The Ad Hoc court was widely denounced as a sham.
The Serious Crimes Unit:
Another source of legal authority arose out of the United Nations Transitional Administration in East Timor (UNTAET), which was established on 25th October 1999 by the UN Security Council19. UNTAET had the authority for all legislative and executive matters in East Timor, including the administration of justice. It established the Special Panels for Serious Crimes, the Serious Crimes Unit and the Defence Lawyers Unit (DLU).
There were formidable obstacles facing these institutions. Instead of conducting the prosecutions of suspected Indonesian war criminals at an international tribunal in an established venue such as The Hague, the Special Panels for Serious Crimes was established within the impoverished local structure of the Dili District Court. Similarly, the Serious Crimes Unit was established within the Office of the General Prosecutor, Longuinhos Monteiro.
When the Serious Crimes Unit requested the Special Panels for Serious Crimes to issue warrants for Yayat Sudrajat (the military intelligence chief in East Timor) and Wiranto (the commander of the Indonesian military), the request was declined by a single judge of the Special Panels for lack of supporting evidence. The Serious Crimes Unit responded by filing supporting materials of 13,000 pages and 1,500 witness statements. The General Prosecutor publicly criticized the international judges on the Special Panels for failing to act on the arrest warrant against Wiranto, and signaled his intention to submit the warrant to Interpol. An international judge, Philip Rapoza, then issued arrest warrants for both Yayat Sudrajat and Wiranto on 10th May 2004. Longuinhos Monteiro was then summoned to the office of President Gusmao and summarily informed that such actions would harm East Timor's relationship with its powerful neighbour, Indonesia.
The view of the government of East Timor was that it could not carry such a heavy diplomatic burden on its own, and that the UN should bear this responsibility. The situation confronting the government of East Timor is understandable; in a schoolyard, a bullied child with no other allies is often forced to come to terms with its tormentor. The main task for people of goodwill, then, is to create the conditions in which a future East Timorese government can realistically call for justice.
The Commission on Truth and Friendship
In March 2005, the Indonesian authorities made another attempt to evade an international tribunal, forming a Commission on Truth and Friendship (CTF) with the government of East Timor. The CTF had originally stemmed from an idea of Jose Ramos-Horta, who proposed a panel of eminent persons from Asia (i.e. not limited to Indonesia or East Timor). Indonesia responded by engineering the CTF, which had several crucial differences to the original proposal:
- It was entirely bilateral; only Indonesian and East Timorese commissioners would preside over it, meaning that there would be no opportunity for multilateral involvement.
- It would have no power to compel testimony (or even the attendance) of witnesses.
- It would have no power to compel people or institutions to produce any documentary evidence.
- It would have no institutional independence from the two states.
- It would be unable to determine individual responsibility.
- It would have the power to recommend amnesties. This was, obviously, a way of absolving those who bore greatest responsibility for the crimes.
Human rights organizations and other civil society groups in Indonesia, as well as those in East Timor, objected to this Commission. Its proceedings quickly descended into farce, with senior Indonesian leaders and officials claiming that the atrocities were everyone else's fault but their own. On one occasion, the behaviour of Indonesian co-chairman Benjamin Mangkoedilaga resulted in all East Timorese commission members remaining silent in protest.
The United Nations boycotted the CTF's proceedings altogether, saying it did not condone amnesties regarding war crimes, crimes against humanity and genocide. UN Secretary General Ban Ki-Moon stated that the UN "cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them. Unless the terms of reference are revised to comply with international standards, officials of the United Nations will, therefore, not testify at its proceedings or take any other steps that would support the work of the CTF and thereby further the possible grant of amnesties in respect of such acts."20
Mangkoedilaga has form; in 1999, he presided over the so-called Peace and Stability Commission, which tried to provide a fig-leaf of legitimacy and neutrality to the Indonesian military's terror campaign against the independence ballot in East Timor. Mangkoedilaga and his colleagues fled East Timor even as the staff of the United Nations were being held hostage. He left on 3rd September 1999, the day before the results of the ballot were announced, even though his Commission was supposed to monitor the situation there. Other members of the Commission left two days before he did. When asked about his performance at the time, he said, 'What could we do? We were instructed by the military authorities to leave the country'21.
According to an insightful analysis of the CTF, it may well be in violation of the Indonesian as well as the East Timorese constitutions22. The former requires Indonesia's House of Representatives to approve international agreements such as the CTF, and the latter requires ratification or approval followed by publication in the official gazette. Neither occurred. It is hardly a secret, however, that the real aim of the CTF is the same as that of the Ad Hoc Human Rights Court – to absolve Indonesia's senior perpetrators of charges of war crimes and crimes against humanity. As Benjamin Mangkoedilaga acknowledged frankly, 'The important thing is to give trust to the invitees that our invitation will not lead to any trial or the setting up of any tribunal'23.
In the end, the international criticism had an effect; the CTF refused to give any amnesties. It found that the Indonesian military, the Indonesian civilian government and anti-independence militias bore institutional responsibility for thousands of "gross human rights violations in the form of crimes against humanity" including "murder, rape, and other forms of sexual violence, torture, illegal detention and forcible transfer and deportation" against the East Timorese civilian population. The CTF had no power to prosecute the perpetrators.
The UN Commission of Experts
UN Secretary-General Kofi Annan appointed a Commission of Experts in January 2005 to review the justice processes in Indonesia and East Timor. This Commission reported in May 2005 that the Ad Hoc Human Rights Court was 'manifestly inadequate' and showed 'scant respect for or conformity to relevant international standards'24. It recommended that Indonesia be given six months to try the perpetrators, failing which the Security Council adopt a resolution to create an ad hoc criminal tribunal for Timor-Leste located in a third State.
In response to the Commission's report, the Secretary-General said in July 2006 that 'the re-establishment of the prosecutorial component' of the Serious Crimes Unit 'would not be practically feasible at the present time' but that 'the resumption of the investigative functions of SCU in order to complete the investigations into several hundred serious crimes is not only practically feasible but would also substantially allay concerns about the risk of leaving the expectations of the Timorese people unmet'. He therefore recommended the establishment of 'an experienced investigation team, led by an international serious crimes investigator, with sufficient resources to resume the investigative functions of the Serious Crimes Unit and complete investigations into outstanding serious crimes cases of 1999 in a timely fashion'25.
14UN Doc. S/2005/458, May 26, 2005.
15Sonia Picado was a member of the Costa Rican Legislative Assembly and Vice – chairperson of the Board of Directors of the Inter- American Institute of Human Rights. Judith Sefi Attah was Minister of Women's Affairs and Social Development of Nigeria and was a member of the Sub- Commission on the Prevention of Discrimination and Protection of Minorities (now called the Sub-Commission on the Promotion and Protection of Human Rights) from 1987 to 1997. A.M. Ahmadi is a former Chief Justice of India. Mari Kapi was Deputy Chief Justice of Papua New Guinea. Sabine Leutheusser – Schnarrenberger is a former Federal Minister of Justice in Germany and a member of the German Bundestag (Parliament).
16This section relies on interviews with UN Trial Observers and NGOs monitoring the trials.
17D. Cohen, 'Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta', International Center for Transitional Justice Occasional Paper Series, August 2003; S. Linton, 'Unraveling the First Three Trials at Indonesia's Ad Hoc Court for Human Rights Violations in East Timor', Leiden Journal of International Law 17, 2004; 'Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in East Timor in 1999', UN Doc. S/2005/458, May 26, 2005.
18Commission of Experts Report, p 88.
19Resolution 1272 of 1999.
21Aboeprijadi Santoso, Timor Leste 1999 or, how to sell lies, Jakarta Post, 1 May 2007.
22M. Hirst, Too much friendship, too little truth: Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste, International Centre for Transitional Justice, January 2008.
23Lindsay Murdoch, 'Apology and Truth may earn amnesty', Sydney Morning Herald, 15 January 2007.
25UN, Report of the Secretary-General on justice and reconciliation for Timor-Leste, 26 July 2006.
What is the legal position in respect of amnesties given by a state?
Amnesties may be given freely by a state only in cases where the state itself is the victim e.g. the crimes of treason or sedition.
There are many categories of amnesties.
a. There are 'blanket amnesties', which are totally illegitimate because they have 'an extraordinarily broad scope', 'deny the judiciary the potential to prosecute', and 'render actual prosecution impossible for crimes that are generally regarded as requiring prosecution under customary international law'26.
b. There are 'Internationally legitimized, partial immunities'. If such amnesties are to meet international obligations, 'the adjucatory body cannot include genocide, war crimes, crimes against humanity and torture'27.
c. There are 'locally legitimized, partial immunities'. These amnesties are 'more restrictive in scope' and are 'more likely to comply with' international obligations28.
d. Finally, there is 'Constitutional immunity', which is legitimate. This requires a considered, impartial process in which the most serious crimes are excluded from amnesty considerations29.
Amnesties that are granted in an arbitrary, non-transparent process, and which do not take the above considerations into account, serve only to discourage respect for the government of the day, discourage respect for the rule of law, encourage private acts of revenge and vigilanteeism, and provide an incentive for the commission of future human rights abuses.
It is sometimes argued that amnesties can further the cause of peace. For instance, Sierra Leone's International Truth and Reconciliation Commission said in respect of the Lome Peace Agreement that it was 'unable to declare that it considers amnesty too high a price to pay for the delivery of peace to Sierra Leone, under the circumstances that prevailed in July 1999. It is true that the Lome Agreement did not immediately return the country to peacetime. Yet it provided the framework for a process that pacified the combatants and, five years later, has returned Sierra Leoneans to a context in which they need not fear daily violence and atrocity'30.
But it must be understood that this amnesty was a temporary measure. Charles Taylor (the individual so amnestied) did not enjoy this amnesty as a right in perpetuity. Rather, the state granted him a temporary privilege, and a subsequent government could revoke this privilege. His amnesty was a step on the road to justice, not a barrier to justice.
The South African Truth and Reconciliation Commission granted an amnesty to those who applied for it, provided they told the whole truth and provided the amnesty was in respect of a political crime. But it had clear rules for the granting of amnesties. A well-staffed Amnesty Committee supervised the process, and thorough investigations were conducted by independent investigators prior to each decision.
The Indonesian authorities had been hoping that those acquitted at the Ad Hoc trials in Jakarta would be able to avail themselves of the protection of the constitutionally-guaranteed non bis in idem principle, which prevents a person from being judged twice for the same criminal conduct.
Although the principle is widely recognized in international human rights law, there are in fact two exceptions – 'shielding' and 'due process'. The former applies where the proceedings had the purpose of shielding the defendant from genuine criminal responsibility. The latter applies where the proceedings were not conducted independently or impartially in accordance with norms of due process.
As Professor Diane Orentlicher's independent report to the United Nations on combating impunity makes clear:
The fact that an individual has previously been tried in connection with a serious crime under international law shall not prevent his or her prosecution with respect to the same conduct if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person concerned to justice31.
Both exceptions apply to the Ad Hoc Human Rights Court, meaning that those acquitted are still able to face a credible court, despite the Indonesian authorities' efforts. Little wonder, then, that the United Nations refused to allow its personnel to testify before the Commission on Truth and Friendship.
Amnesties in the case of the Indonesian military's crimes against humanity would strengthen the politics of impunity. As the Statute of the International Criminal Court makes clear, 'the most serious crimes of concern to the international community as a whole must not go unpunished'. It points out that States are 'determined to put an end to impunity for the perpetrators of such crimes' and that 'it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes'32. The promise of international law is that the East Timorese government need not feel it has to confront its military on its own; by requiring prosecutions, international law ensures that the government has the support of the international community33.
26William W. Burke-White, 'Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation', Harvard International Law Journal, Vol 42, No 2, Summer 2001.
27William W. Burke-White, 2001.
30Sierra Leone Truth and Reconciliation Commission, Witness to Truth: Final Report, Vol. 3B, 2004, p 365.
31D. Orentlicher, Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, E/CN.4/2004/88.
32Statute of the International Criminal Court, Preambular Paragraphs 4-6.
33D. Orientlicher, Settling Accounts: The Duty to Prosecute Violations of a Prior Regime (1991) 100 Yale Law Journal 2537.
What is the Commission for Reception, Truth and Reconciliation?
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 Comissão 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 199934. 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.
34UNTAET Regulation 2001/10.
What was the death toll in East Timor?
There were certain unique aspects to Chega!, which benefited from scientifically-defensible estimates of the number of East Timorese killed during the occupation. There had been numerous reports of mass killings and famine during the 24 years of Indonesian rule, but various apologists for the occupation had questioned estimates that up to 200,000 East Timorese may have perished. Chega! settled the matter definitively, thanks to the assistance of Benetech, a California-based nonprofit organization devoted to using technology in the service of humanity. Its Human Rights Data Analysis Group (HRDAG) worked with the CAVR to establish a firm foundation of fact, providing the most accurate and scientifically precise figures possible. It did so by building on a database of three independent sources: narrative statements, a retrospective mortality survey, and a census of public graveyards35. The first source consisted of approximately 8,000 narrative testimonies in which patterns of abuses such as arbitrary detentions, torture, rape and massive property destruction were reported to the CAVR. In turn, the CAVR developed a Human Rights Violations Database, thus enabling it to perform the functions of community socialization and the promotion of truth-seeking, reconciliation and reception. The second source was a survey of 1,396 households that were randomly selected from East Timor's approximately 180,000 households. Each sampled household gave information about their residence pattern and household members and relatives who died during the occupation. While these mortality surveys are standard procedure in governmental statistics, no truth commission had previously conducted one. The third source was the graveyard census database, developed by visiting all public cemeteries in East Timor and recording the name, date of birth and date of death for every grave for which the information was available. The researchers established that there were approximately 319,000 graves in the sample, of which about half had complete name and date information. Once again, although this is standard procedure in the field of historical demography, no truth commission had previously conducted one.
Chega! definitively established that up to 183,000 civilians died due to conflict-related causes during the period 1974-1999. It concluded that the 'minimum-bound for the number of conflict-related deaths was 102,800 (+/- 12,000)', and the upper bound may have been as high as 183,000.
Sarah Staveteig, a demographer at the University of California – Berkeley, applied standard demographic methods of indirect estimation and found that 'a reasonable upper bound on excess deaths during the period [was] 204,000 (± 51,000)'. Staveteig considered it 'likely that 204,000 is a conservative upper-bound estimate on excess mortality'36.
35Report by the Benetech Human Rights Data Analysis Group to the CAVR, The Profile of Human Rights Violations in Timor-Leste, 1974-1999, R. Silva and P. Ball, 9 February 2006. Read it here
36Sarah Staveteig, 'How Many Persons in East Timor Went 'Missing' During the Indonesian Occupation?: Results from Indirect Estimates', Interim Report IR-07-003
International Institute for Applied Systems Analysis (IIASA), Laxenburg, Austria. Read two papers by Sarah Staveteig: "Missing" Persons in East Timor during the
Indonesian Occupation, 1975 - 1999
How Many Persons in East Timor Went 'Missing' During the Indonesian Occupation?
What evidence of sexual violence did Chega describe?
Chega! found widespread evidence of sexual violence, a particularly heinous form of crimes against humanity. Although there are cultural taboos against admitting such violations, hundreds of direct testimonies were received by the CAVR, which found that rape, sexual torture and acts of sexual violence were widespread and systematic. Furthermore, the Indonesian authorities' 'institutional practices and formal or informal policy' encouraged such behaviour.
The evidence showed that 'the violations were commonly committed in a wide range of military institutions' and that 'military commanders and civilian officials knew that soldiers under their command routinely used military premises and equipment for the purposes of raping and torturing women and took no steps to deter these activities or to punish those involved'. In fact, 'the commanders and officials were in some cases themselves also perpetrators of sexual violence'37.
Sexual slavery was commonplace; East Timorese women were enslaved sexually 'without fear of reprisal, inside military installations, at other official sites and inside the private homes of women who were targeted'38. This, too, occurred with the 'knowledge and complicity of members of the Indonesian security forces, the police force, the highest levels of the civilian administration and members of the judiciary'39.
The victims of sexual violence were not just East Timorese women; men too were raped. Male rapes often took place in the context of torture.
Other frequently reported examples of sexual violence occurring inside official Indonesian military installations include:
- mutilation of women's sexual organs, including insertion of batteries into vaginas and burning nipples and genitals with cigarettes
- use of electric shocks applied to the genitals, breasts and mouths
- gang rape by members of the security forces
- forcing of detainees to engage in sexual acts with each other, while watched and ridiculed by members of the security forces
- rape of detainees following periods of prolonged sexual torture
- rape of women who had their hands and feet handcuffed and who were blindfolded. In some cases women bound in this way were raped until they were unconscious
- forceful plucking of pubic hairs in the presence of male soldiers
- rape of pregnant women
- forcing of victims to be nude, or to be sexually violated in front of strangers, friends and family members.
- women raped in the presence of fellow prisoners as a means of terrorising both the victims and the other prisoners
- placing women in tanks of water for prolonged periods, including submerging their heads, before being raped
- the use of a snake to instill terror during sexual torture
- threats issued to women that their children would be killed or tortured if the women resisted or complained about being raped
- repeated rape of women by a multitude of (unknown) members of the security forces
- forced oral sex
- urinating into the mouth of victims
- rape and sexual violence indiscriminately inflicted upon married women, unmarried women, and young teenagers still children by law
- keeping lists of local women who could be routinely forced to come to the military post or headquarters so that soldiers could rape them. Lists were traded between military units
37Chega! Executive Summary p 118.
38Chega! Executive Summary p 121.
39Chega! Executive Summary p 122.
What evidence of torture did Chega describe?
The crime of torture was outlawed by the Allied powers that occupied Germany after World War II40. Torture is prohibited in numerous conventions including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture, to which Indonesia acceded in 1998. Torture is also prohibited in the Geneva Conventions and the Additional Protocols thereto. The prohibition against torture is firmly established as a customary norm in international law. The definition contained in the Convention Against Torture (1984) requires that severe pain or suffering for the purpose of obtaining information or a confession be 'inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity'. The law recognises that rape can constitute a form of torture41.
From the invasion of 1975 till the end of the occupation in 1999, the Indonesian military committed widespread and systematic torture against the people of East Timor. The prohibition against torture in this case amounts to jus cogens, since the procedural safeguards of Article 43 of the Geneva Convention IV (1949) for the internment of civilians were systematically disregarded42.
The following acts of torture were common:
- Beating with fists or with implements such as a wooden club or a branch, an iron bar, a rifle butt, chains, a hammer, a belt, electric cables
- Kicking, usually while wearing military or police boots, including around the head and face
- Punching and slapping
- Cutting with a knife
- Cutting with a razor blade
- Placing the victim's toes under the leg of a chair or table and then having one or more people sit on it
- Burning the victims flesh, including the victim's genitalia with cigarettes or a gas lighter
- Applying electric shocks to different parts of the victim's body, including the victim's genitalia
- Firmly tying someone's hands and feet or tying the victim and hanging him or her from a tree or roof
- Using water in various ways, including holding a person's head under water; keeping a victim in a water tank for a prolonged period, sometimes up to three days; soaking and softening a victim's skin in water before beating the victim; placing the victim in a drum filled with water and rolling it; pouring very hot or very cold water over the victim; pouring very dirty water or sewage over the victim
- Sexual harassment, sexual forms of torture and ill-treatment or rape while in detention. Women were the main victims of this kind of abuse.
- Cutting off a victim's ear to mark the victim
- Tying the victim behind a car and forcing him or her to run behind it or be dragged across the ground
- Placing lizards with sharp teeth and claws (lafaek rai maran) in the water tank with the victim and then goading it to bite the softened skin on different parts of the victim's body including the victim's genitalia
- Pulling out of fingernails and toenails with pliers
- Running over a victim with a motor-bike
- Forcing a victim to drink a soldier's urine or eat non-food items such as live small lizards or a pair of socks
- Leaving the victim in the hot sun for extended periods
- Humiliating detainees in front of their communities, for example by making them stand or walk through the town naked
- Threatening the victim or the victim's family with death or harming a member of the victim's family in front of them
The actions of the Indonesian military were encouraged or condoned at the highest levels.
40See Allied Control Council Law No. 10, which enabled domestic prosecutions of war crimes, crimes against humanity and crimes against peace.
41The International Criminal Tribunal for the former Yugoslavia, 10 December 1998 (Furundzija).
42The International Criminal Tribunal for the former Yugoslavia, 16 November 1998 (Celebici) and 26 February 2001 (Kordic).
What evidence of enslavement did Chega describe?
The prohibitions against the crime of enslavement are contained in the 1926 Slavery Convention, the 1956 Supplementary Slavery Convention, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia43, and Article 7(2) (c) of the Statute of the International Criminal Court. Enslavement is also outlawed in the Geneva Convention III (1949), the International Covenant on Civil and Political Rights, and the Forced or Compulsory Labour Convention 1930.
Enslavement is defined as 'exercising the powers attaching to the right of ownership' over one or more persons. It includes 'chattel slavery' i.e. the treatment of humans as chattel, and actions such as 'control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour'44.
The Indonesian security forces were found to have committed numerous acts of enslavement, including against children. Thousands of East Timorese were used as forced labour, including several thousand children. Children used as forced labour received no salary for their services. In some cases, soldiers treated these children as if they had rights of ownership over them, passing them on to other soldiers after their tour of duty ended. This treatment was a grave breach of Geneva Convention IV, Article 147 (willfully causing great suffering or serious injury to body or health). It was also a grave breach of Article 51 of Geneva Convention IV, which requires that an Occupying Power is obliged to pay a fair wage and ensure that the work is 'proportionate to their physical and intellectual capacities'. The recruitment of children by individual soldiers was known about at the highest levels of the military structure.
The Indonesian authorities were found to have committed the following examples of enslavement:
- East Timorese men were severely beaten and then forced to plant a vegetable garden and build a house for a member of the Indonesian security forces.
- Thousands of young men used as forced labour in the late 1970s and early 1980s. They were typically compelled to build roads and houses or to maintain gardens.
- Women were subject to rape and 'forced marriages' by members of the Indonesian military.
- Males over the age of 15 were often forced to perform nightly patrols, and if they failed to do so were subjected to such punishments as having to walk on hot ashes and lie in dirty water for several hours.
- Males were also forced to build public buildings without pay, including a clinic and houses for the Sub-district military command (Koramil) and government officials.
- After the Santa Cruz Massacre of 1991, several men were arrested, detained for four months, and subsequently forced to work around the clock without pay, growing food for the soldiers during the day and performing guard duty at night. They worked on the land for 12 hours a day between 6.00am and 6.00pm with only a short break at breakfast and a 15-minute lunch break. They were beaten if they were late. At 6.00pm they bathed, ate and rested and at 9.00pm they took turns doing the night watch until 6.00am.
- In 1999, hundreds of men were compelled to carry out forced labour, such as cleaning, cutting grass, fixing pipes, looking for firewood or guarding militia posts.
43The International Criminal Tribunal for the former Yugoslavia, 22 February 2001 (Kunarac) and 15 March 2002 (Krnojelac).
44The International Criminal Tribunal for the former Yugoslavia, 12 June 2002 (Kunarac).
What evidence of deportation or forcible transfer did Chega describe?
Deportation or forcible transfer is the forced, unlawful, displacement of persons from the area in which they are lawfully present. When such displacement occurs across an international border, it is known as deportation. When it occurs inside an international border, it is known as forcible transfer. Both forms are outlawed in Article 7 of the Statute of the International Criminal Court, in numerous human rights instruments, and in the jurisprudence of the International Tribunal for the former Yugoslavia.
The force involved does not have to be actual physical force; it also includes the threat of force or coercion, psychological oppression, or other means of rendering displacement involuntary45. The 'unlawful' element of this crime against humanity cannot be dodged by a government that arbitrarily enacts legislation declaring the displacement to be legal.
The Indonesian security forces were found to have subjected the population to repeated periods of displacement, often in massive numbers, between 1975 and 1999. This crime was so widely perpetrated that 55.5% of surveyed households reported one or more displacement events46. Most individual East Timorese alive today were found to have experienced at least one period of displacement. Many experienced several periods. The Indonesian military forced tens of thousands of people into resettlement camps in the 1970s and early 1980s. There, they were subject to a range of other crimes against humanity, including unlawful imprisonment, torture, murder, sexual violence and enslavement. People were displaced in a widespread and systematic manner, with food being used as a weapon of war. International humanitarian agencies were barred from entering East Timor until there were famines of 'catastrophic proportions'.
In the lead-up to, during and after the independence ballot in 1999, the Indonesian security forces conducted a coordinated campaign of large-scale ethnic cleansing, forcibly displacing about 250,000 people to West Timor after the ballot. Indonesia's KPP-HAM similarly concluded that the Indonesian authorities had committed 'crimes of universal jurisdiction including systematic and mass murder; extensive destruction, enslavement, forced deportations and displacement and other inhumane acts committed against the civilian population'.
45Article 7(1)(d) of the Statute of the International Criminal Court.
46Chega! Executive Summary p 44.
What evidence of Imprisonment (Arbitrary Arrest and Detention) did Chega describe?
Imprisonment is a crime against humanity only if it is arbitrary. The UN Working Group on Arbitrary Detention specified three categories that encapsulate this crime:
1. deprivation of liberty in the absence of a legal basis;
2. deprivation of liberty as a result of the exercise of specified rights and freedoms (i.e. political prisoners); and
3. deprivation of liberty due to a violation of the international human rights norms relating to the right to a fair trial47
In East Timor, the Indonesian security forces were found to have 'committed, encouraged and condoned widespread and systematic arbitrary arrest and detention'. Tens of thousands of East Timorese were detained arbitrarily over the course of the occupation. The Indonesian authorities arrested people in every district, although the highest numbers of detentions occurred in the capital of Dili, which had the largest state prisons and the main interrogation centres.
Arrest and detention were used to crush the Resistance as follows:
- by keeping members of the Resistance in detention, they were prevented from continuing their activities or communicating with their colleagues.
- Intelligence and other military personnel used the interrogation of prisoners to obtain information about Resistance structures and strategies, or the whereabouts of particular members of the Resistance.
- Arbitrary detention and the other violations that often occurred during a period of detention punished real or suspected members of Resistance groups, thereby warning others of the consequences of following their examples.
- Detaining family members and associates of suspected members of the Resistance could provide the security forces with intelligence about a suspected member, and was also used to punish the family member or associate in the place of the suspected member of the Resistance.
- The victims of arbitrary arrest and detention were predominantly men of military age (20-39 years old) with a real or suspected association to groups resisting the occupation.
- Indonesian security forces and their auxiliaries also targeted family members, including wives, parents and children, of suspected members of the armed Resistance, clandestine networks or other pro-independence groups. These arrests were made in the name of national security and ridding Timor-Leste of members of the 'Bands of Security Disruptors' (Gerombolan Pengacau Keamanan, GPK).
The institutional practice of the Indonesian security forces was to arrest suspects arbitrarily, without any regard for due process.
- Persons arrested were not read their rights or told the charges against them.
- Excessive force was routinely used in the arrest of suspects.
- Prisoners were deprived routinely of adequate food and clean water for several days at a time, or given food that was inedible.
- Prisoners frequently died of starvation and illness in numerous detention locations.
- Prisoners were routinely detained in unofficial detention centres far from their family and friends. In many cases families did not know what had happened to their relatives who had been arrested, and if they did find out they were prohibited from communicating by letter or from making visits.
- Prisoners were routinely moved between detention centres, sometimes between a number of places on the same night.
Detainees were routinely held in the following inhumane conditions:
- They were provided with food that was made inedible, for example by dropping it on the floor, mixing it with broken glass or other sharp objects or cat faeces, or giving prisoners food that was burned or rotten.
- Detainees were stripped of their clothes, leaving them naked or in only their underwear. In some places, all detainees were kept in this condition for extended periods.
- Detainees were placed in solitary confinement, sometimes for up to a year.
- Detainees were placed in cells known as 'dark cells', in which there was no light and extremely poor ventilation. All detention centres, including prisons, police stations and military commands, had dark cells.
- Detainees were placed in extremely poor sanitary conditions. Many had no access to a toilet for extended periods, and were forced to sit in their own or each other's excrement.
- Detainees' access to activities was severely restricted. They were prevented from reading books or papers, and from undertaking other forms of leisure activity.
- Detainees were prevented from having access to legal advice or representation, and when access was granted, such access was limited.
- When the International Committee of the Red Cross, lawyers or a foreign delegation visited a detention centre, detainees were punished for having spoken to them.
- There was severe ill-treatment and torture, including beatings and abuse by prison guards.
- In many cases, the Indonesian authorities did not put detainees on trial. Detainees had no means to challenge their detention or to request a release date. Their detention was indefinite.
47Report of the UN Working Group on Arbitrary Detention, UN Doc. E/CN.4/1998/44 para 8.
What evidence of murder and enforced disappearance did Chega describe?
Murder is the unlawful and intentional causation of the death of a human being. It is a crime against humanity. Extermination – also a crime against humanity – is closely related. It means causing death within a context of mass killing. Extermination includes indirect means of causing death.
The death tolls in East Timor have been discussed earlier in this paper, and will not be repeated in this section.
Enforced disappearance is the 'arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time'48. The essence of this crime against humanity is that friends and families do not know whether the direct victims are alive or dead. Enforced disappearance is outlawed as a crime against humanity in the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance.
Members of the Indonesian security forces and their auxiliaries were found to have committed and condoned widespread and systematic extra-judicial executions and enforced disappearances. Unlawful killings and enforced disappearances took place in all 13 districts, with the highest number being recorded in the eastern districts. Victims of unlawful killings and enforced disappearances were predominantly men of military age with a real or suspected association to groups resisting the occupation. Typically, women and children were killed during massacres, when indiscriminate shooting and attacks led to large number of fatal casualties. Indonesian security forces and their auxiliaries used enforced disappearances as a strategy to control counter-insurgency activities, particularly in the eastern and central regions. The strategy was particularly effective in instilling fear in the general community, disrupting the lives of the families of the victim. Throughout the occupation, the Indonesian military used murder, extermination and enforced disappearances to punish communities collectively.
The following methods and circumstances were used:
- Indiscriminate shooting of unarmed groups of civilians
- Dividing groups of unarmed civilians by gender, then indiscriminate shooting of the men
- Ordering of victims to dig their own grave before execution
- Ordering of victims to line up in formation before line by line execution
- Execution of unarmed individuals by close-range shooting
- Discarding of bodies by burning, by speedy secret burials without any attempt in identifying the victim and next of kin, by dumping into a well, lake, or ocean
- Throwing of grenades at unarmed group of civilians
- Death in custody by beating and torture
- Immediate execution after capture during military operations
- Public beheading
- Public staged or real acts of cannibalism
- Public cutting of body parts
- Public display of decapitated head, or severed limbs or body parts
- Forcing of civilian to kill another civilian under duress
- Tying to a moving vehicle to be dragged to death
- Tying up on a cross before execution
- Throwing down a cliff, sometimes after being wounded
- Burying of wounded victim alive
- Public execution where a married couple was stripped naked, hit on the back of the neck into a grave
- Public fatal beating
- Parading of corpse
- Deadly assault using traditional weapons, such as machetes, spears and knives
- Death by acts of torture
- Abduction followed by disappearance, in some cases blind-folded and tied-up
- Targeted killing
- Execution of detainees in detention centres, and in isolated places in the countryside, including in lakes and from rural bridges
- Displaying of human ears and genitals to family members of the disappeared
- Rape before the killing of female victims.
In 1999, Indonesian security forces conducted a coordinated and sustained campaign of violence in order to intimidate the pro-independence movement and ensure a pro-Indonesian result in the Popular Consultation organised by the United Nations. Military bases were openly used as militia headquarters, and military equipment, including firearms, were distributed to militia groups. Some Indonesian military personnel were also militia commanders or members. Indonesian military intelligence officers provided lists of the names of people to be targeted, and coordinated attacks. Civilian authorities openly provided state funding for militia groups and participated in militia rallies and other activities.
Indonesian's KPP-HAM also concluded that the Indonesian military, police and militias acted in a coordinated manner. It reported that there was 'a strong relationship and linkage between the Indonesian military, the police, the government bureaucracy and the militias' and that there was evidence of 'crimes of universal jurisdiction including systematic and mass murder; extensive destruction, enslavement, forced deportations and displacement and other inhumane acts committed against the civilian population'.
The crimes against humanity of murder and enforced disappearances were coordinated by the Indonesian authorities at a high level. The treatment of the victims was uniform: most of the victims were held in specific detention centres from which they were taken to specific places of execution where they were killed by specific military or auxiliary units. A detainee who was eventually executed might be transferred from one place of detention to another, often in a different district, before being executed, one indication of overall coordination. A wide range of institutions were involved in the execution and disappearance of detainees, including the units of the territorial structure from the Korem down to the Koramil, combat battalions and the regional combat regiments (Resimen Tim Pertempuran) which commanded them, Hansip, paramilitary teams such as Team Nuklir and Tonsus, and the civil administration. The killings were widely known at the time both by detainees and by the wider population and were perceived by both to constitute a coordinated campaign.
The language used by perpetrators in different districts to account for the disappearance of the victims was frequently uniform, with detainees who had been taken away for execution being described as 'having gone for a bath' or 'gone to school'. The systematic nature of the executions was evident from the remarks of the commander-in-chief of the Indonesian armed forces, from their scale and also from documentary evidence that village chiefs and members of the civil defence forces were ordered to draw up lists of people who had been active in the Resistance in the past, which formed the basis for the violations that followed.
The military operations involved the mobilisation of a wide range of institutions within the security apparatus and the civil administration, including the Special Forces (Kopassus), all levels of the territorial structure, combat battalions, the civil defence forces, paramilitary teams, the civilian and military police and local government officials.
The sheer number of murders and enforced disappearances, the evidence that many of them occurred during coordinated operations conducted across the territory, and the efforts of domestic and international non-government and domestic effort to inform the military and civilian authorities in Jakarta that these atrocities were happening rules out the possibility that the highest reaches of the Indonesian military, police and civil administration were ignorant of what was going on.
The systematic failure of the Indonesian military and civilian leadership to prevent and stop these acts which they must have known about, and to punish the direct perpetrators of these crimes, is itself evidence of complicity.
48Article 7(2)(i) of the Statute of the International Criminal Court.
What obstacles have confronted the establishment of previous tribunals?
Previous tribunals have had their prospects dismissed at first and then come into existence.
The International Criminal Tribunal for the former Yugoslavia (ICTY) is a good example.
- New York University's Professor of Law, Theodor Meron, once wrote in Foreign Affairs magazine (Summer 1993) that a Yugoslavia tribunal "will not be very effective". Less than a decade later, he was president of that tribunal.
- The UN Secretary-General identified a prosecutor, who was then formally appointed only to resign before ever really beginning the work.
- A number of states (e.g. Brazil and China) challenged the right of the Security Council to establish the ICTY.
- When the ICTY got up and running, it did not have any high-profile defendants in custody. It had no cooperation from the governments in the region. It received little assistance from the NATO-led peace support forces who controlled the situation on the ground.
- One suspect, Dusko Tadic, was arrested in Munich, and prosecution began before Germany's national courts. The ICTY Prosecutor was desperate for a case to prosecute, so he invoked 'primacy' over German courts and demanded that Germany's prosecution of Tadic be stayed in favour of the ICTY.
- Dusko Tadic was an insignificant personality, but the ICTY simply did not have anyone high-profile in custody to prosecute. The Tadic trial took a year. Some years later, however, the ICTY's caseload was so heavy that the Prosecutor was trying to refer cases to national jurisdiction rather than have them dealt with at the ICTY!
The International Criminal Tribunal for Rwanda (ICTR) also ran into serious difficulties at first.
- The Security Council resolution concerning Rwanda made no mention of establishing an international tribunal. This is because several states wanted a less expensive way of prosecuting suspects.
- China, which had accepted the ICTY a year and a half before, raised concerns about the proposed ICTR. The Yugoslav wars had a clear international dimension, whereas the Rwandan genocide was an essentially internal matter, and China was troubled about the precedent of violating state sovereignty. However, it abstained from the Security Council vote rather than vetoing it.
- The real difficulties came from the new Rwandan regime itself. As it happened, Rwanda was actually serving a two-year term as an elected member of the Security Council. It was only member of the Security Council to vote against the resolution that established the ICTR. (It disagreed with the prohibition of capital punishment, the limitation of temporal jurisdiction to the 1994 calendar year, the lack of an independent prosecutor and appeals chamber, and many other things).
- The ICTR was plagued with administrative difficulties and even corruption. At one point, the UN had to intervene, firing the two most senior officials of the Tribunal, the Registrar and the Deputy Prosecutor.
- There were also several problems with unethical defence lawyers, who took legal aid fees from the Tribunal but then split them with their clients.
- Relations with Rwanda were often stormy. At one point Rwanda threatened it would block all access of ICTR officials to its territory, a move that would effectively shut down the institution's ability to operate.
- The ICTR suffered from the isolation of Arusha, which hampered its ability to attract top-level judges, prosecution staff and defence counsel.
Nevertheless, it did what it was supposed to do, prosecuting many of the leaders of the 1994 genocide. Indeed some of its jurisprudence has made its way into the High Court of Australia, the Supreme Court of Canada, and courts in the US and Switzerland.
The Special Court for Sierra Leone (SCSL) had a serious problem with funding because the money was supposed to come from voluntary contributions from States rather than from the general coffers of the United Nations. Not until late 2001 had sufficient pledges been received and funds deposited for the Secretary-General to proceed to establish the Court.
The SCSL didn't rely on a Security Council resolution under Chapter VII of the UN Charter. Instead, it relied on an agreement between the UN and the Government of Sierra Leone. This agreement is, in effect, an international treaty between the UN and the government of Sierra Leone.
The SCSL's ambitions were always much more modest than those of the ICTY and ICTR. Trials were to be completed within three years, and appeals shortly afterwards. The budget was a fraction of that of the other tribunals. Yet this lean version of an international tribunal also benefited from much of the acquired experience in The Hague and Arusha, including a staff of whom many had worked for the other tribunals.
Perhaps the most important defendants did not make it to trial: rebel leader Foday Sankoh died while in custody in August 2003, and Liberian President Charles Taylor escaped justice when he obtained asylum in Nigeria, although this situation has since changed. But a senior cabinet member in the government was arrested, as were other leaders of the various warring factions.
The SCSL is a genuine international tribunal with the characteristics associated with classical international organizations: legal personality; the capacity to enter into agreements with other international persons governed by international law; privileges and immunities; and an autonomous will distinct from that of its members. The SCSL rules of procedure and evidence (RPE) are very streamlined, in keeping with the 'lean' model and benefiting from the experiences of the ICTY and ICTR.
Unlike the ICTY and ICTR, however, the SCSL cannot issue binding orders on States that are not party to the treaty establishing the SCSL. The SCSL has primacy only over the national jurisdiction of Sierra Leone, not every member state in the UN. But these differences are more theoretical than real because the ICTY and ICTR have no legal means of enforcement; when they have appealed to the Security Council for action to execute their orders, the Council has never responded to any specific request from the Tribunals. States have usually complied with orders from the ICTY and ICTR but where a State defies a tribunal, the tribunal can do nothing unless the Security Council takes action.
What sources of law have previous tribunals drawn on?
All three international tribunals are derived from the central treaty of modern international law, which is the Charter of the UN. Article 103 of the Charter established the judicial supremacy of the Charter over all other treaties.
Tribunals also have a broad invitation to consult a range of treaty sources. They can apply any treaty which (i) was unquestionably binding on the parties at the time of the alleged offence, and (ii) was not in conflict with or derogating from peremptory norms of international law (peremptory norms are 'compelling laws' from which no deviation can be authorized, such as the prohibition on committing genocide).
Tribunals also apply customary international law, which is found not just in treaties but in the universally recognised customs and practices of states and the general principles of justice.
Tribunals can also apply 'general principles of law' derived from national laws of legal systems of the world.
Tribunals can also refer to previous judicial decisions of other international tribunals. The ICTY and ICTR have a common Appeals Chamber, and the SCSL Appeals Chamber is guided by the jurisprudence of the ICTY/ICTR Appeals Chamber.