There can no longer be any doubt that the proceedings in Indonesia's ad hoc human rights court for East Timor are a sham following the extraordinary decision by the prosecution to request the acquital of the highest-ranking defendant Major General Adam Damiri. The fate of Damiri is in sharp contrast to that of civilians killed in Aceh in atrocities reminiscent of East Timor and of anti-government protestors thrown into jail in Jakarta for the "offence" of insulting the President.
The series of trials in Jakarta of 18 defendants accused of crimes against humanity in East Timor before, during and after the independence ballot in August 1999 are likely to end soon with the acquital of the former regional military commander, Adam Damiri.
The prosecution asked for the charges against Damiri to be dismissed because of the alleged lack of evidence against him. The formal verdict is due to be announced on 1 July.
While an affront to justice, this development is perhaps not surprising given the abject performance of the prosecutors to date. They have ignored vital evidence, presented a false account of the events as a conflict between two violent East Timorese factions, and given the impression that they would prefer all the accused to escape punishment.
Damiri has demonstrated his own contempt for the proceedings by taking time off from his trial to help prepare the armed forces for their war on Aceh. His arrogance and lack of concern for justice is a disturbing sign that the military is enjoying a resurgence which has put it beyond the law.
In recent months, the ad hoc court has convicted former East Timor commander, Brigadier-General Noer Muis of crimes against humanity and sentenced him to five years imprisonment, half the legal minimum, and acquited another former East Timor commander, Brigadier-General Tono Suratman.
In the 17 concluded cases, the court has acquited 12 defendants and convicted only five. All five have been given lenient sentences and remain free pending appeal.
The lack of political will to challenge the power of the military and to push through meaningful legal reforms has meant that these outcomes were sadly inevitable.
UN expert castigates legal system
The extent of the crisis in the Indonesian justice system was made clear in a report, published in January, by the UN special rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, following his visit to Indonesia in July 2002.
Mr Cumaraswamy expressed concern about the "lack of a culture of judicial independence" and "widespread judicial corruption" which, he said, is not limited to the judiciary, but "spreads as cancer in the entire system, the judiciary, police, prosecutors and Office of the Attorney-General". He concluded that "the slow pace with which the Government and DPR [parliament] are addressing the issues has called into question the political will of these institutions to deal with the situation on an urgent and priority basis".
He further suggested that restrictions on the jurisdiction of the ad hoc court for East Timor amount to a "violation of the principle that prosecutions are to be undertaken in good faith and with due diligence". The several acquitals are not surprising given the "insufficient investigations and the failure to produce material evidence," he said. He expressed concern about "the wholly unsatisfactory implementation of the witness protection measures".
Mr Cumaraswamy called for "drastic, urgent and far-reaching action" to tackle judicial corruption and for "a holistic approach to reforms of the judiciary, the entire prosecutorial system and the police force. He recommended that the Government should develop a plan, with the assistance of the international community, to ensure that future prosecutions of gross human rights violations reflect international standards and practice".
UN Rights Commission betrays victims Serious flaws in the ad hoc trial process were also identified by the UN High Commissioner for Human Rights, Sergio de Mello, in his report to the 59th session of the UN Commission on Human Rights in March.
Mr de Mello – formerly the head of UNTAET in East Timor – referred to the "insufficient investigations undertaken by the Office of the Attorney- General" and the weakness of the indictments. He rightly made the point that none of the defendants, except one, was accused of personally committing or commanding the commission of crimes against humanity. He stated that the failure to put before the court evidence that portrays the killings and other human rights violations as part of a widespread or systematic pattern of violence "seriously undermines the strength of the prosecution's case and jeopardizes the integrity and credibility of the trial process".
In the light of this, it is hard to understand why the Commission did nothing to ensure that the perpetrators of gross violations in East Timor are brought to justice. In an agreed Chairperson's Statement, the Commission merely expressed disappointment at the way in which the trials were being carried out.
Its underlying message was that if improvements were made, the process would be acceptable. It ignored the many flaws in the process, the limited jurisdiction of the court and the failure of the Indonesian authorities to investigate more than a handful of the hundreds of serious crimes committed in East Timor.
At a special session in September 1999 the Commission had condemned the "widespread, systematic and gross violations of human rights and international humanitarian law" in East Timor, and called for those responsible to be brought to justice. Although there is currently no meaningful prospect of accountability, the Commission perversely dropped the issue from its agenda for future sessions.
Next year, the Commission will consider only the question of technical cooperation with East Timor in the field human rights. This will likely preclude any further consideration of Indonesia's responsibility for the atrocities.
Serious Crimes Unit delivers verdict on Jakarta justice On 24 February, the Serious Crimes Unit (SCU) in East Timor – set up by the UN under UNTAET – delivered its own verdict on the Jakarta process and the authorities' failure to investigate the highest-ranking suspects, by filing indictments against former armed forces commander, General Wiranto, six other senior military officials and former civilian Governor of East Timor, Abilio Soares (one of the few convicted by the Jakarta court).
This was a major development in the search for justice for East Timor, but predictably Indonesia stated that it would refuse to transfer the accused to East Timor.
The response of the East Timorese leadership was also less than helpful.
President Xanana Gusmao issued a statement saying that the process was not in East Timor's national interest and Foreign Minister Josi Ramos Horta, on a visit to Jakarta at the begininning of March, indicated that relations with Jakarta were more important than justice.
Concerned about the lack of political support for the serious crimes process, the International Federation for East Timor (IFET), of which TAPOL is a member, wrote to the President on 1 April, expressing support for his desire to promote reconciliation and good relations with Indonesia, but pointing out that those objectives were not incompatible with the pursuit of justice and should not be given priority over justice.
IFET argued that Indonesia would be "strengthened as a nation if it confronts the issue of impunity and in particular the responsibility of its armed forces for gross violations in [East Timor]".
It also expressed the fear that the President's response to the indictments could encourage the Indonesian authorities to ignore numerous other gross violations perpetrated in Indonesia. "The people of Indonesia will not be well served by the continued protection of TNI impunity," it said.
IFET agreed with the President that East Timor is not able to provide justice on its own. It pledged to press the international community and the UN to support the serious crimes process, both politically and with the necessary resources, now and after the expiration of the current UN mission, UNMISET, in May 2004. It said it would also urge the international community to find other ways of bringing the perpetrators to justice including the establishment of an international criminal tribunal and prosecutions in third countries under universal jurisdiction provisions.
On 20 May 2003 – the first anniversary of East Timor's independence – IFET wrote to members of the UN Security Council calling upon the Council to establish an international tribunal. It also asked the Council to extend the mandate of the SCU and the associated special court, saying that the "work of the SCU would serve as a solid basis for an ad hoc international tribunal.[The texts of IFET's letters are available at http://www.etan.org/ifet]
East Timor's prime minister, Mari Alkatiri, has been more forceful in pressing for international justice. In May, in an interview with the Asia Times he said: "Crimes against humanity must be judged...and the international community has primary responsibility
We cannot just ignore crimes against humanity, which are the gravest of crimes, yet take petty thieves to court. It would be a travesty of justice" [Asia Times, 15 May 2003].
He subsequently criticised the Jakarta trials ("They are like a piece of theater") and called for an international tribunal in a neutral country [AP, 30 May 2003; UNMISET, local media monitoring, 30 May].
This issue is not just about the views of the East Timorese government or any other government, however. It is also about the East Timorese people, the victims and their families and about the Indonesian victims of military violence. And it is about the need to uphold human rights and the supremacy of international law. The international community, not the East Timorese government, is therefore ultimately responsible for ensuring that justice is done.
Beyond impunity?
There is growing concern in Indonesia that impunity – exemplified by the Jakarta trials – is now so entrenched that increased militarisation of the country is inevitable.
This was a major concern of the international solidarity movement for West Papua (North) meeting in Brussels from 6-8 June. The movement has written an open letter to members of the international community expressing grave concern about the impact of the Jakarta trials on the unaccountable power of the military.
The letter expressed the movement's fear that "increased militarisation and violence in areas such as West Papua and Aceh will result from the legal system's failure to challenge the power of the military". It argues that "sustainable peace will not be achieved as long as the authorities persist in pursuing the military solution to political problems and do nothing to bring the perpetrators of human rights violations to justice".
With many innocent civilians now being killed in military operations in Aceh and West Papua, the need for justice to triumph over impunity is more urgent than ever.