The Asia-Pacific Journal | Japan Focus Volume 4 | Issue 1 | Article ID 1706 | Jan 04, 2006

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East Timor's Search for Justice and Reconciliation

Jeff Kingston

East Timor ’s Search for Justice andReconciliation

By Jeff Kingston

[With East Timor�s President Xanana Gusmaopresenting to the United Nations the report ofthe Commission of Reception, Truth andReconciliation, Japan Focus presents a revised,expanded and updated version of JeffKingston’s earlier report on the issues drawingon interviews with Gusmao, Foreign MinisterJose Ramos-Horta and others. The issuesreverberate beyond East Timor and Indonesiato such nations as the United States, Japan andAustralia that supported Indonesian repressionin East Timor over a quarter of a century fromthe 1975 invasion. This article reproducesmajor findings of the report on the Indonesianreign of terror in the final stages of thereferendum period and beyond and condemnsthe failure to act on the part of the US andother powers . The text o f the ent ireCommission report is available from theNational Security Archive. Japan Focus] Dili after the attack.

East Timor ’s 924,000 citizens are finding thatthe truth does not set them free and thatjustice and reconciliation are elusive. A recentreport published by East Timor’s Commissionof Reception, Truth and Reconciliation (CAVR isthe commonly used Portuguese acronym),estimates that there were a minimum of102,800 conflict-related deaths and perhaps asmany as 200,000 during Indonesia’s brutaloccupation between 1975-99. [1] There were”…approximately 18,600 unlawful killings andenforced disappearances of East Timorese non-combatants perpetrated between 1974-1999.”

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The CAVR reports that “…many people diedfrom hunger and illness in excess of thepeacetime baseline for these causes of death.”Starvation, rape, torture and resettlement weresystematically organized to pacify the island. Itfinds that “The overwhelming number of thesedeaths occurred in the years 1977-78…”, andduring large scale Indonesian military attacksin the interior and later in Indonesian detentioncamps and resettlement areas where food andmedical care were grossly insufficient.Responsibility for this carnage, in addition towidespread torture and rape, rests largely withthe Indonesian military. However, the CAVRalso attributes 10% of the toll to internecineviolence among the four main East Timoreseparties and reprisals against those whocollaborated with the Indonesian military.

Finally in 1999, when a referendum onindependence was held under UN auspices, theworld paid attention to East Timor’s nightmare.Despite widespread intimidation and violence,almost all East Timorese showed the courage tovote and overwhelmingly chose independencefrom Indonesia. They paid the price. Aspromised in the event of such an outcome,Indonesian controlled militia razed towns,villages and churches, while brutalizing thepopulation and forcibly relocating as many as250,000 Timorese to Indonesian-controlledWest Timor. The CAVR report, entitled Chega!(Enough!), concludes that there is credible andextensive evidence that planning for andknowledge of this scorched earth campaignextended to the highest echelons of theIndonesian military.

Bringing these high-ranking officers and theirgoons to justice has been frustrating largelybecause there has been insufficient politicalwill in Indonesia and the internationalcommunity to hold them accountable. An AdHoc Tribunal established by Jakarta didconduct trials and there were some convictionsand sentences, but all but one of theseconvictions have been overturned on appeal

and the remaining defendant remains freewhile his appeal is pending. In a May 2005report submitted to UN Secretary General KofiAnnan, a panel of experts criticized thisfundamentally flawed judicial process. [2] Notonly did the big fish get away, even thedesignated scapegoats have walked.

On Dec 20, 2005 the CAVR dissolved amidstcontroversy and recriminations. The Presidenthas not yet made the report public generatingwidespread dismay within East Timor and theinternational community. In early December heexplained to me, ''I accept the report from A toZ and will not change anything. I believe thatthe public has the right to be informed. Wemust disseminate it in the proper way. We arenot a human rights organization. Everythingwill be done in the right way in the right time.At the end of January I will present the reportto the secretary general in New York and willstop in Tokyo on my return to request financialassistance for a series of workshops aimed atdisseminating and socializing it in 2006.” [3] Aspromised he presented the report to thesecretary General on Jan. 20, 2006.

The following excerpts are from the 215 pageexecutive summary.

FINDINGS

*On the function of history: “…our nation choseto pursue accountability for past human rightsviolations, to do this comprehensively for bothserious and less serious crimes…and todemonstrate the immense damage done toindividuals and communities when power isused with impunity…our mission was toestablish accountability in order to deepen andstrengthen the prospects for peace, democracy,the rule of law and human rights in our newnation. Central to this was the recognition thatvictims not only had a right to justice and thetruth but that justice, truth and mutualunderstanding are essential for the healing andreconciliation of individuals and the nation. TheCAVR was required to focus on the past for the

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sake of the future.”

* Indonesia’s responsibility : “…rests primarilywith President Soeharto, but is shared by theIndonesian armed forces, intelligence agenciesand the Centre for Strategic and InternationalStudies which were principally responsible forits planning and implementation.”

* On the possibility that rogue elements in themilitary were acting on their own initiativewithout the knowledge of superiors in Jakarta:“Throughout the occupation Indonesianmilitary commanders ordered, supported andcondoned systematic and widespread unlawfulkillings and enforced disappearances ofthousands of civilians…The sheer number ofthese fatalities, the evidence that many of themoccurred during coordinated operations…andthe efforts of domestic and international non-government [organizations] to inform themilitary and civilian authorities in Jakarta thatthese atrocities were happening rule out thepossibility that the highest reaches of theIndonesian mil i tary, pol ice and civi ladministration were ignorant of what wasgoing on.”

*Sexual violence committed by the Indonesianmilitary was: “…widespread and systematic …in which members of the Indonesian securityforces openly engaged in rape, sexual torture,sexual slavery and other forms of sexualviolence throughout the entire period of theinvasion and occupation.” This involved,“…keeping lists of local women who could beroutinely forced to come to the militarypost…so that soldiers could rape them. Listswere traded between military units.” Inaddition, “…rapes and assaults were repeatedlyconducted inside victim’s homes, despite thepresence of parents, children and other familymembers.” “Often these women were thetargets of proxy violence. That is, because thewoman’s husband or brother who was beingsought by the military was absent, the womanwould be raped and tortured, as a means of

indirectly attacking the absent target.” Thereport concludes that sexual violations wereused as a tool of terror and degradationinvolving practices such as, “…forcingprisoners to walk long distances throughcommunities while naked, public rape andmultiple instances of rape and torture inmilitary posts…The purpose was also tohumiliate and dehumanize the East Timoresepeople. It was an attempt to destroy their willto resist, to reinforce the reality that they wereutterly powerless and subject to the cruel andinhuman whims of those who controlled thesituation with guns.”

The impunity enjoyed by the rapists meant,“that the practice of capturing, raping andtorturing women was conducted openly withoutfear of any form of sanction by senior militaryofficers…This impunity could not havecontinued without the knowledge andcomplicity of members of the Indonesiansecurity forces, the police force, the highest

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levels of the civilian administration andmembers of the judiciary.”

The rapists have fathered children yet providedno support for rearing them. “This wasparticularly problematic because formervictims of rape and sexual slavery at the handsof Indonesian military forces were oftenconsidered ‘soiled’ and unsuitable for marriageby East Timorese men and faced ongoing socialstigma…. Misperceptions on sexual violencecontinue to lead to the victimization of women.”

*On the role of militias in the 1999 violence: “In1999 Indonesian security forces and theirauxiliaries conducted a coordinated andsustained campaign of violence designed toi n t i m i d a t e t h e p r o - i n d e p e n d e n c emovement…Military bases were openly used asmilitia headquarters, and military equipment,including forearms were distributed to militiagroups.

* Regarding the 1999 referendum: “When theresult of the ballot was announced, theIndonesian military and its militia allies carriedout its threatened retaliation, to devastatingeffect, but this time governments were unableto ignore the contras t be tween theextraordinary courage and quiet dignitydisplayed by the voters of Timor-Leste and theterrible retribution wreaked by the TNI and itsEast Timorese partners.”

* Regarding the international community: “Inreality key member states did little to challengeIndonesia’s annexation of Timor-Lest or theviolent means used to enforce it. Most nationswere prepared to appease Indonesia as a majorpower in the South-East Asian region.”

*On Japanese complicity: “ Japan wasIndonesia’s major investor and aid donor andhad more capacity than other Asian nations toinfluence policymaking in Jakarta, but it did notuse this leverage.”

* On US responsibility: “ As a Permanent

Member of the Securi ty Counci l andsuperpower, the U.S. had the power andinfluence to prevent Indonesia’s militaryintervention but declined to do so. It consentedto the invasion and allowed Indonesia to use itsmilitary equipment in the knowledge that thisviolated US law and would be used to suppressthe right of self-determination.”

* The Vatican, despite pleas for support, was,“… concerned to protect the Catholic Church inMuslim Indonesia, maintained public silence onthe matter and discouraged others in theChurch from promoting the issue.”

* France and the UK: “…increased their aid,trade and military cooperation with Indonesiaduring the occupation.”

* Australia: ”…did not use its internationalinfluence to try to block the invasion and spareTimor-Leste its predictable humanitarianconsequences. Australia acknowledged theright of self-determination, but undermined itin practice by accommodating Indonesia’sdesigns on the territory and opposingindependence.”

The CAVR final report found that between 1974and 1999:

*A vast majority (85%) of the human rightsviolations directly reported to the Commission

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were committed by Indonesian security forcesacting alone or through auxiliaries.

*Violations were "massive, widespread andsystematic." Indonesian forces used starvationas a weapon of war, committed arbitraryexecutions, and routinely tortured anyonesuspected of sympathizing with pro-independence forces.

*The Indonesian government and the highestcommanders of the Indonesian army violatedinternational humanitarian law by targetingcivilians.

RECOMMENDATIONS

In addition to various initiatives for communityhealing, victim counseling, financial aid andmemorialization,

The CAVR calls on the Security Councilto establish an international tribunal,“…should other measures be deemed tohave failed to deliver a sufficientmeasure of justice and Indonesia persistsin obstructing justice.”

Based on 8,000 individual statements,and a ser ies o f publ ic hear ingsthroughout East Timor, the CAVRconcludes that, “…the demand for justicea n d a c c o u n t a b i l i t y r e m a i n s afundamental issue in the lives of manyEast Timorese people and a potentialobstacle to building a democratic societybased upon respect for the rule of lawand authentic reconciliation.” It findsthat, “Overwhelmingly they haveexpressed to the Commission that theyseek some kind of accountability on thepart of the perpetrators, and simpleassistance to enable them and theirchildren to participate on an even footingin the new democratic Timor-Leste.”

Justice and accountability must involve,“Those who planned, ordered, committedand are responsible for the most serious

human rights violations [who] in manycases have seen their military andcivilian careers flourish as a result oftheir activities.”

To promote reconc i l ia t ion anddemocratization, Indonesia shouldstrengthen, “…the independence andefficiency of its judicial system in orderto be able to genuinely pursue justiceand revert the record of impunity thatregrettably has been the norm regardingthe crimes committed in Timor-Leste.”

Regarding the bilateral Commission forTruth and Friendship established byIndonesia and East Timor as a means toseek truth and closure, possibly involvingamnesty, ” The CAVR believes thatnothing should compromise the rights ofvictims to justice and redress.” The CTFis enjoined to act,“…with a view to strengthening, notweakening, the chances of criminaljustice.” And amnesty should only begranted, “…if this is based on judicial dueprocess consistent with internationalstandards.” This means that those guiltyof serious crimes would be ineligible foramnesty.

Indonesia is urged to revise, “…officialaccounts and education materialsrelating to Indonesia’s presence inTimor-Leste to ensure that these give theIndonesian people and accurate andcomprehensive account of the period1974-1999.” Further it should, “…destroyall intelligence files maintained on EastTimorese…” and expunge from “…‘blacklists’ the names of East Timoreseand non-East Timorese human rightsactivists.”

Reparations are largely the obligation ofIndonesia and should include, “businesscompanies which profited from war andrelated activities in Timor-Lest between

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1974-1999.”

Lasting reconciliation, “…cannot beachieved without establishing the truth,striving for justice, and providingreparations to victims.”

Reparations: “At least 50% of programmeresources should be directed to femalebeneficiaries.”

Indonesia , “As the occupying powerw h i c h c o m m i t t e d m o s t o f t h eviolations…has the greatest moral andlegal responsibility to repair the damagecaused by its policies and agents.”However, “If Indonesia is slow torespond…the International communityshould make their contributions whilepressing Indonesia to ful f i l l i tsresponsibil it ies.”

Reparations are requested, “…from thePermanent members of the SecurityCouncil.” And “…governments whoprovided military assistance, includingweapons sales and training, to theIndonesian government during theoccupation and business corporationswho benefited from the sale of weaponsto Indonesia.”

Duration of the reparations program,“…an initial period of 5 years, with thep o s s i b i l i t y o f e x t e n s i o n . I t i srecommended that the scholarshipprogram for children continues until thelast eligible child turns 18 years old, thatis, in 2017.”

T h e C A V R r e p o r t m a k e s s e v e r a lrecommendations for achieving justiceincluding that:

*The United Nations should renew themandates and funding of the Serious CrimesUnit (SCU) and Special Panels in Timor-Leste,established to try those responsible for theviolations. Both bodies should be placed under

the jurisdiction of the UN.

*The international community should apply theprinciple of universal jurisdiction to bring casesagainst Indonesian perpetrators, especiallythose previously indicted by the SCU. Theinternational community should pressureIndonesia to achieve accountability for theabuses committed in Timor-Leste and makecooperation contingent upon progress towardthis. The government of Indonesia shoulddeclassify information held by its securityforces that could contribute to justice, andshould educate i ts people and publicinstitutions about the crimes committed inTimor-Leste.

The report, thus, calls for reparations andjudicial proceedings as a foundation forreconciliation. It calls for setting up areparations program for victims of the conflict,to be funded not only by Indonesia, but also bythe foreign governments, and weapons dealers,who were complicit in the invasion.

President Gusmao opposes reparations,asking,” How can we go to the worldcommunity, one that was indifferent to ourplight for too long, when it did finally help usachieve independence and made enormouscontributions exceeding $1 billion to help uscope with our emergency situation? We stillneed their help and should not be ungratefulfor what they have contributed. They aremaking amends for their mistakes.” Thisconflation of development aid and reparationsdoes not sit well with critics who say that thisallows donors to sidestep their responsibility.The CAVR report also distinguishes betweendevelopment assistance and reparations, bothnecessary but not substitutes since reparationsinvolve symbolic atonement.

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The President believes that there is no supportwithin the Security Council for an InternationalTribunal and thus East Timor needs to seekanother way forward to sustain the process ofreconciliation. He told me that there is nothingnew or untrue about the CAVR findings, whichbegs the question, what could possibly be theharm of releasing a report based on publichearings that presents nothing new? As aTimorese he sympathizes with the conclusionsregarding responsibility, but as a leader heargues that the national interest is not wellserved by remaining fixated on the sufferingTimorese endured during their long strugglefor independence.

In his view, “We can best honor that struggleand these sacrifices by building a betterdemocracy here, improving governance andproviding better services to the people. We alsomust respect the courage of the Indonesians inaccepting our independence and not disrupttheir progress towards democratization by

demanding formal justice. The politicalsituation remains fragile in Indonesia and thereis a risk that we could help unite forcesopposed to SBY’s (President Susilio BambangYudhoyono) reform agenda. It is absolutely inour interest to see our huge neighbor succeedin these reforms; this is our best protection.”

He also expressed concern that, “ Going downthe path of prosecuting Timorese for their pastactions during our struggle for independencewill open old wounds, divide people at a timewhen we need unity and lead to chaos. This isdangerous because it could become a policy ofpolitical persecution.” He recalled his days asthe leader of the armed resistance and theprofound sadness he felt on losing soldiers. “ In1981-82 every time I lost a soldier I cried like achild—I was so miserable. I wondered how canI assure myself that we can endure and prevail.I cried thinking of those who lost their livesfighting for independence. My men respectedmy sorrow but one day a platoon leader cameto me and told me to stop crying. He said theyalready died. Now your duty is not to cry foreveryone that dies. Take care of us that are stillalive. This is a good lesson in how to look at thecurrent situation. I understood his wisdom andbelieve that it is important now that we haveindependence to show respect for those whogave their lives by taking care of those whosurvived.”

Foreign Minister Jose Ramos-Horta, a Nobellaureate, rhetorically asked me, “Why didn't theUN establish a tribunal here back in 1999 whenthey had 7,000 PKO here who could havearrested the culprits in West Timor? There isnot much we can do to bring Indonesians totrial by ourselves. This isn’t only pragmatism. Isincerely believe that Indonesia is makingprogress on democrat ic reforms andstrengthening the rule of law. However thistakes a long time and the situation is fragile.SBY (President Susilo Bambang Yudhoyono) isweak and does not fully control the military andcan’t challenge them in this way without

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risking that his opponents would gang up onhim. It is important that we do not destabilizethe slow process of democratization inIndonesia because it is our best guarantee.They have shown the courage to accept ourindependence. Knowing that the situation is sodifficult and that the UN Security Councildoesn’t want an International Tribunal itdoesn't make sense for us to pursue it.” [4]

Left unsaid, but undoubtedly on the minds ofthe leadership, is the recent resumption ofmilitary cooperation between the US andIndonesia. Eduardo Gonzales, Senior Associateat the International Center for TransitionalJustice (ICTJ), observed, “The geopoliticalsetting has changed dramatically since 9/11.Now Indonesia is a valued ally in the global waron terror. Because of that there is littleinclination in the international community topress Indonesia hard on what happened in1999. Sadly, such geopolitical considerationscreate double standards of justice.” [5]Gonzales strongly supports prosecution ofperpetrators, arguing that the failure to do so“erodes the quality of independence anddemocracy in East Timor.” However, he agreeswith Ramos-Horta that the UN has failed to acton several occasions when it could havepromoted justice and prosecution.

The CAVR report is also inconvenient becauseit opens old wounds between domestic political

groups that fought a civil war and engaged inviolent internecine reprisals. The presidentconveyed to me in no uncertain terms that he ismost concerned about the frank discussionconcerning these internal conflicts. In his view,prosecuting those who committed such crimescarries significant potential for revivingdormant antagonisms and a descent intorenewed chaos.

Clearly, the past resonates loudly incontemporary East Timor and people arefinding that the truth is not setting them free.At issue is how to achieve accountability,justice and healing. The President believes thatthe way forward is based on getting at the truthof what happened, granting amnesty whereappropriate and turning the page on this darkchapter while the Church, civil societyorganizations and many victims emphasizebreaking the cycle of impunity and prosecutingthose responsible for committing crimes.

The President defends an ongoing bilateralinitiative with Indonesia called the Commissionfor Truth and Friendship (CTF) despitecriticism that it emphasizes reaching closure,has no judicial mandate and only ensuresimpunity for ranking perpetrators. The CatholicChurch in East Timor held a workshop onDecember 10, 2005 that pilloried the CTFbecause it was established without publicconsultation and offers scant prospects of truthor justice for the victims.

One organizer told me that the CTF is adoomed effort to promote collective amnesia. Inthe court of public opinion, the CTF lackscredibility and seems more likely to fanantagonisms than improve bilateral relations orpromote reconciliation. Three commissionersfrom the CAVR agreed to serve on the CTF,apparently with varying degrees of reluctanceand misgiving. Their concurrent tenure on bothcommissions has raised concerns about aconflict of interest given that they beganserving on the CTF precisely when the final

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CAVR report was being written up. Some NGOactivists have raised concerns that the finalreport thus may have been softened in line withthe objectives of the CTF. Having seen thereport and spoken with various people involvedwith the CAVR, including a commissioner, it ishard to conclude that any such meddling tookplace. It seems unlikely.

What are the prospects for the CTF? In thecourt of public opinion, the CTF has littlecredibility. It is seen as a deeply flawed processaimed at burying the past before it is fullyexamined and heading off recourse to justice. Iwas told that only the Indonesian generals whocommitted crimes welcome the CTF.

The President counters that Indonesia shouldbe given another chance to come clean, doubtsthat amnesty will be granted and emphasizesthat the CTF does not prejudice any futurejudicial initiatives. He takes a long-term view,arguing that progress in seeking justice andaccountability for crimes committed byGermany and Japan is an ongoing process andnot yet fully resolved. In his view, the time isnot yet ripe for formal legal justice, but thiscould change depending on the internationalcommunity. In the meantime, he says that it ishis duty to promote reconciliation and devotescarce resources to the more pressing needs ofthe Timorese that are all too evident. As aleader he stresses that, “…we have to see whatwe can do, not what we wish to do. “

But Father Martinho Gusmao, the Director ofthe Justice and Peace Commission in theCatholic diocese of Bacau told me, “There is noneed for reconciliation between Indonesian andTimorese people. We have no problems. Theproblem is that Indonesian security forcescommitted crimes here and they need to beheld accountable. This is also part of theprocess of building democracy here. We needto see that nobody is above the law, and thevictims in our country need to see that thevictimizers -whoever they are-are prosecuted.

Amnesty is meaningless and will not promotereconciliation, only resentment. Victims wanttheir day in court.” [6]

The opposition leader Mario Carrascalaoagrees and termed the government quarantineof the report "a grave mistake,'' adding ''Thegovernment is worried about the impact onforeign relations. This is normal. But the reportpresents the voices of victims and their demandfor justice and the government should respectthis by releasing it." [7]

Responding to criticism leveled by internationalhuman rights organizations, Ramos-Horta says“Its great for the human rights activists to beheroic in Geneva and New York where theydon’t have to live with the consequences oftheir heroism. They say we don't care about thevictims? We care. The president and I have lostrelatives, friends and comrades over the years.We know the cost of war, the value of peaceand the necessity of reconciliation.”

Following our interview he caused a stir inpubl ic ly assert ing that c iv i l societyorganizations in East Timor have no moralauthority to criticize the president’s efforts topromote reconciliation with Indonesia throughthe CTF.

In 2006 we will learn whether the CTF candeliver the truth, and whether it will lead eitherto justice or reconciliation.

1)Chega!: The Report of the Commission forReception, Truth and Reconciliation in Timor-Leste (CAVR), Executive Summary. CAVR: Dili,2005. 215 pp.

2)”Report to the Secretary-General of theCommission of Experts to Review theProsecution of Serious Violations of HumanRights in Timor-Leste (the then East Timor) in1999.” May 26, 2005. Members of theCommission: Justice P.N. Bhagwati ( India), Dr.Shaista Shameem ( Fiji) and Professor YozoYokota ( Japan).

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3) Interview with President Xanana GusmaoDec 16, 2005.

4) Interview with Foreign Minister Jose RamosHorta Dec. 13, 2005.

5) Interview with Eduardo Gonzalez, SeniorAssociate, International Commission forTransitional Justice.

6) Interview with Father Martinho Gusmao,

Director of Justice and Peace Commission ofBacau, December 17, 2005.

7) Interview with Mario Carrascalao, December16, 2005.

Jeff Kingston is Director of Asian Studies,Temple University Japan. This is a revised andexpanded version of an article that appearedearlier at Japan Focus. Posted at Japan Focuson January 22, 2006.

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