EAST TIMOR 1999 - University Of California, Los Angeles

xEast Timor 1999 Crimes Against HumanityIntroductionAsmara NababanIn October 2004, Abílio Osório Soares, the former Indonesian Governor of EastTimor, was acquitted of all charges relating to gross violations of human rights whichtook place before and after the 1999 Popular Consultation. He had been previouslyconvicted by the Indonesian Ad Hoc Tribunal for East Timor. Although the SupremeCourt at first rejected his appeal, it decided to reconsider his case and ultimatelyacquitted him. Thus, with the exception of Eurico Guterres, the former Commanderof the Aitarak militia and Deputy Commander of the Integration Fighters’ Force(PPI), all of the defendants charged with gross violations of human rights in EastTimor have been acquitted.This provides further evidence that there has been a systematic effort by dominantgroups in Indonesia (military and civilian) – including using the courts – to reinforce the notion that what took place in East Timor in 1999 was a civilian disputethat was not organized or supported by the Indonesian government or military.This view is not only different from, but contradicts the findings of both the UnitedNations and the Indonesian National Commission for Human Rights (KomnasHAM). The crimes committed in East Timor were grave, and they could only havehappened with the support, tacit consent, and protection provided by the stateapparatus (civilian and especially the military) to the perpetrators.This is a worrisome trend. The Indonesian government is aware that internationalpressure on it to provide justice for victims in East Timor has weakened. From theonset, doubts existed about whether the government of Indonesia had establishedthe Ad Hoc Tribunal for Human Rights to fulfill its international obligations or merelyas a tactical response to circumvent the establishment of an international tribunalto address the crimes committed in East Timor before, during, and after the PopularConsultation in 1999.If this situation persists, the rights of the victims will continue to be denied andthe cycle of impunity will go on. This is also disconcerting for Indonesia’s future –raising the spectre that such crimes against humanity will be repeated elsewherein the Unitary Republic of Indonesia.Nevertheless, there must be a just legal resolution, not only to rectify past wrongs,but also to ensure a more humane and civilized future. A legal resolution is important,and although definitions of peace and justice differ across cultures and situations,these definitions must remain within the parameters established by internationallaw.1 This is the primary reason why the international community must consistently1Cherif M. Bassouni, “Searching for Peace, Achieving Justice: The Need for Account ability,”Law & ContemporaryProblems , 42 (Autumn 1996).

Introductionxiuphold the standards of international law. Crimes against humanity must be punishedby the state, and if the state is unwilling or unable to do so the international community is obliged to take necessary action.International law is often criticized as being impotent, the only function of whichis to justify political actions. However, the recent trend in international law showsthat the international community is becoming less and less tolerant of human rightsviolations. The establishment of the International Criminal Tribunal for the FormerYugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) areexamples of the international community taking action to address crimes againsthumanity which occur within national borders. This point was further establishedby the creation of the International Criminal Court (ICC), one of whose statutesprovides that: International Tribunal is the last step taken when a state is unableor unwilling to address international crimes within its jurisdiction.2Such international practices must be continued in order to uphold the normsof international law. The East Timorese nation has been neglected by the international community for too long. Following the Indonesian invasion in 1975, the international community ignored many injustices. The crimes in 1999 were even moredeplorable because they were committed in the presence of a UN mission, UNAMET,which was present to organize a referendum.This is an important book because it exposes what took place in East Timor andchallenges the government of Indonesia’s version of events. As Geoffrey Robinsonwrites, “Most of the acts of violence committed in 1999 were part of a widespreadand systematic attacks directed against the civilians population of East Timor, targetingthose who were believed to be supporters of independence.”3 The book also putsthe responsibility of the international community back on the agenda so justice willfinally be served for the victims of crimes against humanity in East Timor. GeoffreyRobinson has convincingly reconstructed what happened in East Timor, provingthat crimes against humanity really and truly occurred before and after the PopularConsultation in 1999. Furthermore, readers will learn who among high-rankingIndonesian civil and military officials, should be held accountable in a court of law.Even though names such as General Wiranto and Major General Zacky AnwarMakarim have been mentioned in other reports, the list presented by Robinson isstill interesting to read.At last, it is important to note, particularly for Indonesian readers, that the publication of this book is an important contribution to the promotion of human rightslaw – especially in Indonesia where such references in bahasa Indonesia are scarce.Hence, the initiative by the HAK Association in Dili to publish this book should behighly commended. Jakarta, 6 December 2004Asmara Nababan is Executive Director of DEMOS, Center for Democracy and Human RightsStudies (2003-present). He was the Secretary of the Commission of Inquiry into Human RightsViolations in East Timor (KPP-HAM) (1999) and Secretary General of the Indonesian NationalCommission for Human Rights (Komnas HAM) (2000-2002).23Statute of Rome, article 17(a).Executive Summary of the present book.

1PrefaceIn the aftermath of East Timor’s historic vote for independence in August 1999,the supporters of Indonesian rule reduced the country to a shattered, smolderingruin. By late October, some 1,500 people had been killed, scores of women had beenraped, 70% of all the buildings in the country had been destroyed, and more thanhalf the population had been forced to flee their homes.This report provides a detailed account of that violence, and an analysis of itsprincipal causes, patterns and variations. Drawing upon previously unpublisheddocuments and eyewitness testimonies, it also offers a new assessment of politicaland legal responsibility for the crimes committed, and recommendations aimedat ensuring that those responsible will be brought to justice.The violence of 1999 provoked outrage not only in East Timor but around theworld. State leaders and UN bodies, including the Security Council, vowed thatthe culprits would be punished. Two UN-authorized investigations, both conductedin late 1999, concluded that crimes against humanity had been committed, and thatIndonesian authorities bore primary responsibility. A report by Indonesia’s ownHuman Rights Commission drew similar conclusions, and all three investigationsrecommended that an international criminal tribunal should be established to ensurethat the perpetrators would be brought to justice in accordance with internationallaw. The UN Secretary General welcomed these findings, and said that he wouldfollow closely the efforts to secure justice for the victims.In an effort to defuse pressure for an international tribunal, in 2001 Indonesiaestablished a special judicial mechanism to try some of those responsible. That processhas now been widely dismissed as a sham and a travesty of justice, even by Indonesia’smost loyal allies. Of the 18 people charged and tried before the Ad Hoc Human RightsCourt in Jakarta, all but one have now been acquitted; and that one suspect, thenotorious militia leader Eurico Guterres, remains free pending appeal of his sentence. Not a single Indonesian officer or official has been jailed as a result of thosetrials; indeed, most of those accused have been promoted, and some now occupyhighly sensitive positions within the country’s security apparatus.East Timor’s judiciary, with UN and international assistance, has done better. Asof late 2004 more than 370 people had been indicted for crimes against humanitycommitted in 1999, including General Wiranto and several other high ranking Indonesian officers and officials. Of that number, some 50 had been convicted andsentenced to prison terms by East Timor’s Special Panels for Serious Crimes. Unfortunately, virtually all of those convicted have been local militiamen or low ranking

2East Timor 1999 Crimes Against HumanityEast Timorese soldiers. Indonesian officers and officials have remained effectivelybeyond the reach of the East Timor’s courts. In late 2004, for example, around 280of the 370 indictees remained at large in Indonesia.This disappointing lack of progress is partly due to the weakness of Indonesia’sjudiciary, and to the refusal by Indonesian authorities to cooperate with the EastTimorese process. It is also related to the reluctance of East Timor’s own politicalleadership to antagonize so powerful and potentially dangerous a neighbor as Indonesia. That concern has led the President, Xanana Gusmão, and some government ministers to publicly disavow the idea of an international tribunal, and to focusinstead on the goal of reconciliation. The real problem, however, has been the utter failure of key states and of the United Nations itself to assume and accept responsibility in the matter. Notwithstanding early expressions of outrage, and somesignificant support for the judicial process within in East Timor, there has been noserious international effort to ensure that those most responsible for the 1999 atrocitieswill be brought to justice.The idea of an international criminal tribunal for East Timor, endorsed by all threeserious investigations, has effectively been abandoned. In its place, interested partieshave proposed a variety of half-measures, including the establishment of a UNCommission of Experts, to assess the Indonesian and East Timorese trials, and a jointIndonesia-East Timor Truth and Friendship Commission, with a mandate to discuss what happened in 1999, but not to do anything about it. While some goodmight eventually come from such initiatives, there is a real danger that they willsimply delay further, and more likely derail altogether, proper judicial proceedings.This report offers a more straightforward recommendation: that the UN Secretary General and the Security Council establish, without further delay, an international criminal tribunal to try those responsible for the crimes against humanity committed in East Timor in 1999. Given the severity of the crimes in question,the fact that they were committed more than five years ago, and that all availableremedies have been tried and found wanting, this is not an unreasonable proposal.Indeed, to do any less would arguably be an expression of contempt for the ruleof law. And it would send a clear message to past and future perpetrators – whetherin Indonesia, in the Sudan, in Iraq, in the United States, or elsewhere – that theyneed not fear any sanction for grave breaches of international human rights andhumanitarian law.The idea for this report originated within the Human Rights Unit (HRU) of theUnited Nations Mission of Support in East Timor (UNMISET), and I was commissioned to write it in mid-2002 by the UN’s Office of the High Commissioner forHuman Rights (OHCHR). The idea was to draw upon the considerable body ofevidence that had been gathered by UN Political Affairs and Human Rights Officerssince 1999, with a view to writing a more fully textured account than had beenpossible in the immediate aftermath of the violence. Among other things, it wasenvisioned that the report would be submitted to East Timor’s new Commissionfor Reception, Truth and Reconciliation (CAVR) which was then just starting itsimportant work, and to other official bodies entrusted with investigating and prosecuting the crimes of 1999. There was also general agreement that the report wouldbe published and widely disseminated, if possible in Indonesian and Tetun as wellas in English.As expected, the information gathered by UN Political Affairs and Human RightsOfficers based in East Timor was extraordinarily rich and harrowing. But it soon

Preface3became clear that other offices in East Timor held additional information that wouldusefully complement the evidence gathered by the HRU, including a large volumeof documents that had been retrieved from the ruins of Indonesian military, police, and militia offices in late 1999. The most important collections were those heldby the local human rights organization, Yayasan HAK, and the Serious Crimes Unit(SCU), an office established in 2000 by the United Nations Transitional Authorityin East Timor (UNTAET).Despite some early concerns about confidentiality, both Yayasan HAK and theSCU eventually granted access to their archival collections for the purpose of preparingthis report. Both also offered invaluable assistance with fact checking and legal interpretation, as the report was being written. Other individuals and organizations– notably staff at the International Center for Transitional Justice in New York andat Amnesty International headquarters in London – provided valuable commentsand advice on various drafts. Without the help of these people and organizations,without their genuine commitment to the cause of justice, this report could scarcelyhave been written.The report was completed in July 2003, and in early 2004 the UN Office of theHigh Commissioner for Human Rights formally submitted a copy to the CAVR.Copies were also furnished to Yayasan HAK and the SCU, in accordance with earlieragreements and in appreciation of their assistance. The version published here byYayasan HAK has been lightly edited, but its substance and its principal argumentsand conclusions remain unchanged from the original.More than five years have now passed since the crimes described in this reportwere committed, and since the international community vowed that those crimeswould be punished. As one of those who witnessed the terrible events of 1999, andwho had faith that the promises of justice were sincere, I am saddened that so littlehas been done to give them effect. I hope that the publication of this report willgo some way toward remedying that situation. Geoffrey RobinsonNovember 2004, Los Angeles

4East Timor 1999 Crimes Against HumanityExecutive Summary“The past cannot remain shrouded in mystery. In such situations thevictims continue to seek justice and are unable to come to terms with theirsorrow and distress.”1In the course of 1999, East Timor was the scene of terrible violence. Between earlyJanuary and late October, at least 1,200 civilians, and perhaps as many as 1,500, werekilled. Some were shot dead, while others were decapitated, disemboweled or hackedto death with machetes. Many were subjected to torture and ill-treatment. Womenand girls suffered rape and other crimes of sexual violence. The systematic violencefueled the forcible displacement of the population on a massive scale.The violence took place in the context of a referendum, or Popular Consultation,on East Timor’s political status supervised and carried out by the United Nations(UN) on August 30, 1999. In the period before the ballot, suspected supporters ofindependence were subjected to persistent threats and acts of violence by pro-Indonesian militia groups. In spite of the evident dangers, East Timorese welcomedthe opportunity to vote on their political future and voted resoundingly for independence.The worst of the violence followed the announcement of that vote on September 4. Over the next few weeks, Indonesian soldiers and police joined armed proIndonesian militiamen in a campaign of violence so sustained and so brutal thatit shocked even those who had predicted a backlash. Before a UN-sanctioned militaryforce arrived to restore order in late September, hundreds of people had been killedand an estimated 400,000 people – more than half the population – had been forcedto flee their homes.Indonesian authorities have offered a variety of explanations for these events.They have claimed that the pro-Indonesian militia groups formed spontaneouslyin response to provocation by pro-independence activists, and that the violence wasthe result of ‘clashes’ between the two sides. The post-ballot violence, according tothe official view, was an understandable expression of anger on the part of pro-Indonesian East Timorese at a perceived UN bias toward independence. In responseto evidence that Indonesian soldiers had themselves committed acts of violence,the authorities have acknowledged that some ‘rogue elements’ might have doneso, but they have insisted that the armed forces as an institution had been disciplinedand had worked hard to contain the violence.Outside observers, as well as many East Timorese, have offered a different interpretation. They have questioned the claim that the violence was the result of‘clashes’ among East Timorese, arguing instead that it was instigated by Indonesian military authorities and in particular by its Special Forces Command (Komando1United Nations, Situation of Human Rights in East Timor (UN No. A/54/660) December 10, 1999, paragraph 65.

Executive Summary5Pasukan Khusus – Kopassus). They have asserted that the pro-Indonesian militiagroups were essentially proxy forces, created, supplied, and organized by Indonesianmilitary and civilian authorities, and that they acted under orders from Indonesianmilitary officers. In response to official claims that military involvement had beenlimited to a handful of ‘rogue elements,’ they have pointed to evidence that highranking officers were involved, and that much of the violence appeared to have beenplanned.While bearing these divergent views in mind, this report seeks to provide anindependent assessment of the nature and causes of the violence in East Timor. Morespecifically, this report has three aims. First, it sets out to describe and to characterize the violence as fully and accurately as possible, focusing on the period between January 1 and late October 1999. Second, it attempts to explain how and whythe violence happened and took the forms that it did. Third, and most importantly,it seeks to establish who was responsible for the violence, and what the appropriate remedy might be.Method and MandateThe findings and conclusions of this report are not based on unsubstantiatedclaims made by Indonesian government officials or by their critics. Nor do they reston the discovery of a ‘smoking gun,’ either documentary or testimonial. Rather, theyare based on a careful examination and analysis of the now substantial documentary and testimonial record. The principal sources consulted include:z Secret internal reports, memoranda, and orders originating with Indonesianmilitary, police, and civilian authorities, and with various militia groups and otherpro-Indonesian organizations;zTestimony of eyewitnesses to and victims of the violence, as recorded and compiledby respected international and domestic human rights organizations, by jurists,and by United Nations officials;zInternal reports and memoranda on the events of 1999 prepared by the UN Mission in East Timor (UNAMET), the UN Transitional Administration for East Ti

10.1 Liquiça Church Massacre (April 6, 1999) 10.2 Cailaco Killings (April 12, 1999) 10.3 Carrascalão House Massacre (April 17, 1999) 10.4 The Killing of Two Students at Hera (May 20, 1999) 10.5 Arbitrary Detention and Rape in Lolotoe (May-June 1999) 10.6 Attack on UNAMET Maliana (June 19, 1999) 10.7 Attack on Humanitarian Convoy (July 4, 1999)