Burying the Past in Impunity
1. This backgrounder provides a brief summary of the work of the controversial Indonesia/Timor-Leste Commission of Truth and Friendship (CTF), which is due to report in February/March 2008.
2. On 14 December 2004, the governments of Indonesia and Timor-Leste agreed to set up a Commission whose objective, according to terms of reference subsequently concluded on 9 March 2005, is:
“To establish the conclusive truth in regard to the events prior to and immediately after the [Timor-Leste] popular consultation in 1999, with a view to further promoting reconciliation and friendship, and ensuring the non-recurrence of similar events.”
The two governments said that they had opted “…to seek truth and promote friendship as a new and unique approach rather than the prosecutorial process.”
3. The CTF’s membership, comprising five members each from both Indonesia and Timor-Leste, was announced on 1 August 2005:
From Indonesia: Mr Benjamin Mangkudilaga (co-chair), a former Supreme Court Justice; Mr Achmad Ali, a legal expert; Wisber Loeis, former director general of international economic relations at the Ministry of Foreign Affairs; Mgr Petrus Turang, a West Timor bishop; and Mr Agus Widjojo, a military expert.
From Timor-Leste: Mr Dionisio Babo Soares (co-chair); Mr Jacinto Alves; Mr Aniceto Guterres; Ms Felicidade Guterres; and Mr Cirilo Cristovao.
4. The Commission was mandated to review all materials documented by the Indonesian National Commission of Inquiry on Human Rights Violations in East Timor in 1999 (KPP HAM); the Ad-hoc Human Rights Court on East Timor; the Special Panels for Serious Crimes in Timor-Leste, and the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR).
5. Based in Denpasar, Bali, the CTF began work in August 2005, but did not conduct any public hearings until 2007. Five hearings were then held in Indonesia (Denpasar, 19-20 February 2007; Jakarta, March 26-30 2007; Jakarta 2-5 May 2007; Denpasar, 23-24 July 2007; and Jakarta, 24 October 2007) and one in Timor-Leste (Dili, 24-28 September).
6. Testimony was provided by a mixture of military personnel, militia leaders, public officials and victims. However, a disproportionate number of witnesses were alleged perpetrators and senior officials; victims were poorly represented.1 A few high-profile witnesses including former Indonesian President, BJ Habibie, and Timor-Leste Prime Minister, Xanana Gusmao, gave testimony in closed sessions, drawing criticism from human rights NGOs who accused the CTF of violating the victims’ right to transparency.
7. The CTF was supposed to complete its work within one year, but following two extensions of its mandate, it is expected to submit its report in February or March 2008.
Mission, mandate and performance deeply flawed
8. From the outset, the CTF was widely perceived as a mechanism designed to avoid international justice for gross violations of human rights perpetrated in Timor-Leste. It was hastily conceived by the two governments when it became clear that the UN Secretary-General was intent on setting up a Commission of Experts (CoE) to review the progress made by serious crimes processes in Indonesia and Timor-Leste. The Timor-Leste government’s agreement to participate in the CTF process because of its desire to foster good relations with its former occupier was strongly criticised by civil society and the Catholic Church in Timor-Leste. The CTF was set up without the approval of either Parliament or significant consultation with civil society. Human rights groups in Indonesia condemned it for perpetuating impunity and undermining Indonesia’s commitment to uphold human rights.
9. The CTF has since been severely criticised for major flaws in its mission, mandate, formation and performance. The strongest criticism has related to provisions in its terms of reference (ToR)2 that prevent the CTF from instigating prosecutions for serious crimes, but empower it to recommend amnesties for perpetrators who cooperate in revealing the truth. One of the CTF’s stated purposes, to provide ‘definitive closure of the issues of the past’, in reality appears to be aimed at burying the past.
10. The section of the ToR which deals with reconciliation and rehabilitation empowers the CTF to ‘recommend rehabilitation measures for those wrongly accused of human rights violations’. By contrast, the rights of victims are virtually ignored since there is no similar provision for the rehabilitation for victims. Victims are not specifically mentioned throughout the whole ToR.
International standards violated
11. Notwithstanding the establishment of the CTF and statements by the two governments that the CoE was no longer necessary, the CoE was set up according to plan by the UN Secretary-General on 18 February 2005. Its report, published in July 2005, found that certain provisions in the CTF’s ToR ‘contradict international standards of denial of impunity for crimes against humanity’. It stated categorically that ‘The Governments of Indonesia and Timor-Leste must realise that the United Nations do not condone amnesties regarding war crimes, crimes against humanity and genocide’. The UN subsequently refused to testify at the CTF or take other steps to support its work unless the ToR were revised to comply with international standards.3
12. The CoE also raised questions about whether the CTF complies with relevant national legislation on reconciliation in the two countries.4
13. Numerous problems have arisen in relation to the procedures and performance of the CTF. They were summarised in an open letter dated 23 May 2007 to the presidents of Indonesia and Timor-Leste by a worldwide coalition of three dozen human rights groups, including TAPOL:
- A lack of legitimacy attributable to three main factors: the perception that the CTF was established to avoid calls for an international criminal tribunal to try those accused of crimes against humanity in Timor-Leste in 1999; the failure to address crimes committed before 1999; and the amnesty provision, which would allow perpetrators of serious crimes to avoid accountability.
- The absence of any clear procedure for reviewing existing evidence about the violence in 1999 in order to arrive at a consensus about the truth, especially since key Indonesian government institutions have failed to provide relevant records.
- Serious deficiencies in the public hearings, including obvious biases on the part of some commissioners; the introduction of testimony irrelevant to the Commission’s mandate; the absence of any means for cross-checking testimonies against facts established by previous processes or actual evidence; conflict between Indonesian and Timor-Leste Commissioners; lack of assistance and protection for victims who testify; the ad hoc nature of witness testimonies; an imbalance of representation between victims and perpetrators; and the use of the public hearings as a forum for perpetrators to continue to blame the United Nations and other actors for the violence.
- Lack of transparency, clarity and a clear timetable for the Commission’s work.
No transitional justice benefits
14. A detailed report on the CTF by the International Center for Transitional Justice, Too Much Friendship, Too Little Truth,5 published in January 2008 further elucidates the problems and concludes: ‘The CTF has not yet delivered substantial transitional-justice benefits, and its public hearings have seriously compromised the goals of truth and reconciliation. Many of the Commission’s failings to date have their origins in the motivation and methods of the CTF’s creators, as well as fundamental weaknesses in the Commission’s Terms of Reference. These pre-existing problems were compounded by the poor design and inadequate preparation of the public hearing process.’
15. Ironically, the CTF may not be in a position to exercise its controversial mandate to recommend amnesties because there have been no admissions of responsibility or efforts to cooperate in revealing the truth by Indonesian military personnel. Most testimonies have been self-serving attempts by alleged perpetrators to portray a false historical narrative of the violence by laying the blame on the United Nations and conflicting Timorese factions. Some testimony by militia leaders at the Dili hearings has, however, blamed the military and implicated generals in the supply of weapons and financial aid to pro-Indonesia Timorese.6
16. The prospects for a report that ascertains the truth about the destruction of Timor-Leste, and the violence that in 1999 alone resulted in over 1,400 people being killed and 250,000 people being forcibly displaced to West Timor are not good. Furthermore, the report is furthermore unlikely to contribute to sustainable friendship between the peoples of Indonesia and Timor-Leste given its apparent aim to bury the past, undermine the search for justice and sanction impunity.
17. In the words of a member of an Indonesia-based NGO cited by the CoE: 'There are no problems at all between Indonesians and East Timorese, so a reconciliation between peoples of the two countries is not needed. The problem of human rights violations in East Timor does not lie in people-to-people relations, but lies instead with the TNI and its militias as the alleged perpetrators of the violence against the East Timorese'.
18. The CAVR report already provides a detailed historical record of the human rights violations committed in Timor-Leste and the CAVR has undertaken important grassroots reconciliation initiatives. The cause of justice, truth, reconciliation and friendship would be better served by the wider dissemination of the CAVR report and implementation of its recommendations by both governments and the international community. This should start with the renewal by the UN of the Serious Crimes Process and the provision of sufficient resources to enable it to continue to investigate and try cases arising from the period 1975-1999.7
1 See Too Much Friendship, Too Little Truth, International Center for Transitional Justice, January 2008, p. 24 and Annex for an analysis of witnesses and table of those who appeared before the CTF: http://www.ictj.org/images/content/7/7/772.pdf
3 Statement of the Spokesperson for UN Secretary-General Ban Ki-moon, 26 July 2007, SG/SM/11101
4 It has also been suggested that the may violate the Constitutions of both countries. See Too Much Friendship, Too Little Truth, op. cit., note i.
5 Op. cit., note. i.
6 See ‘Indonesian military must take responsibility for 1999 violence: witness, AFP, 26 Sept 2007 (concerning testimony of Fransisco de Carvalho Lopes); and ‘CTF hears of offers of ‘cash, weapons’, Jakarta Post, 26 Sept 2007 (concerning testimony of Tomas A Goncalves).
7 See CAVR recommendations 7.1.1 and 7.1.2.