Jill Jolliffe, Dili – With the militia leader Eurico Guterres due to be charged with crimes against humanity next week, United Nations officials in East Timor are hopeful that 2002 may represent a new phase in the prosecution of human rights violators.
It could not be a worse year than 2001 in the justice areas of the United Nations Transitional Administration in East Timor (UNTAET).
Although foundations seemed to have been solidly laid to prosecute those responsible for the horrific human rights violations of 1999, there was mounting criticism of the serious crimes investigation unit, and there were accusations of political deals struck with militia leaders in talks at the East Timor border.
After more than two years in East Timor, the UN has completed only one case of crimes against humanity – in early December, 10 Timorese were given sentences of four to 33 years for their roles in massacres in the Los Palos district. An Indonesian lieutenant involved walked free. Other indictments have been filed but not yet heard.
In March, the UN asked a legal expert, Mary Fisk, to conduct an inquiry into the running of the serious crimes unit. Valued investigators were quitting in disgust over inaction, lack of resources and poor leadership. Her secret report was said to be scathing, but action was slow to follow.
It was not until the appointment in August of Dennis McNamara as deputy administrator of UNTAET (second to the Brazilian Sergio Vieira de Mello) that changes began, with the New Zealander given a special brief to reorganise the justice section.
McNamara admits there was a serious problem. "Mary Fisk wrote a lot of things that people were aware of," he observed. "The criticisms of the serious crimes unit were widespread, to the point where it needed to be seriously addressed."
The former chief prosecutor, Mohamad Othman, a Tanzanian who had led prosecutions involving the Rwandan genocide, was in the firing line. He was accused of putting the brakes on prosecutions and, with UNTAET's Malaysian chief of staff, Nagalingam Parameswaran, of striking deals with militia leaders during regular forays to the border.
But Othman has argued from the beginning that lessons needed to be learned from the Rwandan experience, where thousands of people had been held for excessive periods while they awaited trial. Prosecutions might be slow in Timor, he said, but they would be more thorough, just and effective if cases were ready for trial before arrests were made.
In his view, the UN had starved East Timor of funds. "The East Timorese have been short-changed," he alleged. "For example, I asked for funding to have access to witnesses outside East Timor, but the allocation was $US30,000, compared to $US500,000 in the cases of Rwanda and former Yugoslavia. It's a piggy-bank mentality."
Negotiations with militia leaders were a separate question. Soldiers at the border are angry about a ban on arresting militia leaders coming across for talks with prosecutors, including the brothers Cancio and Nemesio Carvalho, wanted for atrocities committed in the central highlands. They negotiated terms for trial against promises to bring home hundreds of the refugees captive in West Timor since 1999 and to name Indonesian perpetrators.
McNamara takes a conservative position on the time frame for prosecutions and on the talks with militia leaders. He points out that prosecutions for crimes against humanity necessarily take time because they must be meticulous, and may involve hundreds of witnesses.
On the militiamen, he draws a comparison with Cambodia, where he worked with Vieira de Mello on bringing 370,000 refugees home. "We dealt with the Khmer Rouge then in order to get the population back to Cambodia, and we had to. I think you have to deal with the militia leaders here in order to get the innocent captive refugee population back to East Timor. There's no choice."
International prosecutors and investigators are limited by a 1999 UN resolution restricting prosecutions to the "scorched earth" period of Indonesian withdrawal, between January 1 and September 20 (although there is a legal loophole that allows them to investigate "historical crimes", including the 1975 killings of the Balibo Five, the 1983 Kraras massacre and the 1991 Santa Cruz massacre).
They are even more seriously restricted by the refusal of the UN Secretary-General, Kofi Annan, in January 2000 to endorse a recommendation by a human rights investigator, Sonia Picardo, for an international tribunal for East Timor. Instead, Annan recommended to the Security Council that Indonesia be given the chance to try its own transgressors, a decision strongly supported by Australia.
Two years on, there are no signs this will happen, although Jakarta recently said a special court will try senior officers in the coming period.
There is a provision in the 1999 Security Council resolution for an international court to be set up if Indonesia fails to conduct trials. If indictments pile up and non co-operation continues, pressure for such a court will mount.