East Timor/Indonesia: 'Restorative Justice' is Justice Denied?

Inter Press Service - Monday, August 18, 2008
Analysis by Stephen de Tarczynski

MELBOURNE - East Timor’s most prominent independence leaders -- currently holders of the young nation’s two highest political offices -- may now be the main obstacles to obtaining justice
for victims of the 1999 referendum-related violence.

The final report by the Indonesia and East Timor Commission of Truth and Friendship (CTF) -- established by the two countries in 2005 with the objective of obtaining "the conclusive truth in
regards to the events prior to and directly after the popular consultation in 1999" when, according to the United Nations, some 1,000 people were killed -- was handed to East Timor
President José Ramos Horta and his Indonesian counterpart Susilo Bambang Yudhoyono on Jul.15 in Bali.

East Timor, a former Portuguese colony, was invaded and occupied by Indonesia in 1975 but won independence through a referendum organised by the United Nations in 1999. It became fully independent in 2002 after a period under U.N. administration.

While the CTF found that gross human rights abuses were committed by both pro-autonomy and pro-independence Timorese around the time of the independence referendum -- in which close to 80 percent of voters rejected the proposed "special autonomy" status as part of Indonesia -- the report alluded to the Indonesian military (TNI) as an institution which was
particularly complicit in the violence.

"The commission concluded that Indonesia also bears state responsibility for those gross human rights violations [such as murder, rape, torture, illegal detention and forced mass deportations] that were committed by militias with the support and/or participation of Indonesian institutions and their members," states the CTF.

While Yudhoyono expressed his "deepest regret" for the victims, Indonesia was quick to quash any idea that those responsible would be brought to justice. The President ruled out prosecutions of the perpetrators, stressing that the CTF was about institutional rather than individual responsibility.

Prior to the report being presented to the two leaders, Indonesian defence minister Juwono Sudarsono said that the aim of the CTF was "restorative justice."

It was a point also made by Ramos Horta, who added that the victims’ legacy would be the avoidance of repeating atrocities like those of 1999 as well as creating stronger bonds between
the two countries. He said that East Timor (also known as Timor Leste in the Portuguese) would not be seeking an international tribunal to try those responsible.

Ramos Horta and Yudhoyono were joined by East Timor’s Prime Minister Xanana Gusmão -- Ramos Horta’s fellow independence hero -- in signing a joint statement declaring "we are determined to bring a closure to a chapter of our recent past’’.

While the reactions of Indonesia’s leaders are politically expedient given the possible ramifications if investigations for individual responsibility of human rights violations were
carried to their full extent, the desire to bring about "closure" on the part of East Timor’s leaders means they are complicit in denying the rights of the victims.

Effectively, the leaders’ desire to brush-over past injustices undermines earlier reports on the occupation, such as the Commission for Reception, Truth and Reconciliation of East Timor
-- whose recommendations for accountability remain largely unimplemented -- and inquiries backed by the United Nations.

The support of the CTF by Ramos Horta and Gusmão lends a false sense of legitimacy to the process. It provides Indonesia with a justification for not implementing the recommendations of
previous reports and mitigates the chance of reforming the powerful TNI.

Their support also enables other governments to back the CTF, rather than heeding calls for the perpetrators to face judicial justice.

And such calls are being made. Several non-governmental organisations (NGOs) -- including the two nations’ leading human rights groups, Association HAK of Timor-Leste and Indonesia’s
KONTRAS -- issued a joint statement on the same day the CTF released its report to the two presidents.

"Those who committed crimes against humanity throughout Indonesia’s invasion and occupation of Timor-Leste must be identified and prosecuted, for the sake of justice for past victims in Timor-Leste and for a future in which human rights are respected in Indonesia," said the NGOs, calling for a further judicial mechanism in order to assign individual responsibility for those crimes.

Among the concerns raised by the NGOs was that the CTF "put a priority on rehabilitating the names of accused perpetrators over justice or compensation for victims". The organisations
were critical of the commission’s lack of power to recommend prosecutions and the "inadequate" protection of witnesses, as well as its "narrow" focus on the events of 1999.

The East Timor National Alliance for an International Tribunal (ANTI) -- a grouping of several rights groups which includes victims’ families -- also opposed the CTF. "The process of
creating the CTF did not follow the Constitution of Timor-Leste because the agreement signed by the presidents of Timor-Leste and Indonesia was not ratified by the national parliament of
Timor-Leste, in accordance with article 95 (3f) of the Timor-Leste Constitution," said ANTI.

Additionally, ANTI argues that the assigning of institutional, instead of individual, responsibility for human rights violations "is contrary to the principles of international laws which were ratified by the state of Timor-Leste and to Article 160 of its constitution which says that there must be a justice process for crimes against humanity."

But opposition to the CTF has not only been voiced by civil society. The U.N. did not support the process as it opposed the CTF’s ability to recommend amnesty for those who committed gross
human rights abuses.

Given their past support of the process, the responses from Ramos Horta and Gusmão were not surprising. However, it means that East Timor’s relations with its massive neighbour are
taking precedence over justice for victims of the Indonesian-sponsored violence.

Essentially, by viewing the CTF as the "final word" on the 1999 bloodshed, the two most highly respected leaders of Timor-Leste’s struggle for independence are allowing the perpetrators of the violence to literally get away with murder.

"CTF is only one mechanism of addressing or looking at what atrocities may have happened in the country… there is also something called prosecution," Allison Cooper, spokeswoman for
the U.N.’s mission in East Timor was quoted as saying at a press conference in Dili on Aug. 6.

In 2003 Indonesia’s former armed forces chief, Gen. Wiranto, was indicted by U.N. prosecutors for his role in the violence surrounding East Timor’s independence.

An attempt to "move on" from the past might make economic and political sense to leaders of the fledgling nation, but as men who have known their own share of injustice at the hands of
Indonesia -- four of Ramos Horta’s eleven siblings were killed during the brutal occupation while Gusmão spent seven years in an Indonesian prison following his 1992 capture -- they, like
many of their compatriots, can understand that "restorative justice" is, in fact, justice denied.