Global Policy Forum

By Ian Martin *

The trials before an ad hoc human rights tribunal in Jakarta of officials implicated in the 1999 crimes in East Timor are not only failing to do justice: They have turned truth on its head and added insult to injury.

In February 2000 the U.N. Security Council, receiving the report of an international commission of inquiry into these crimes, agreed to put off other action in order to give Indonesia the chance to bring those responsible to justice. The Security Council expressed the hope that legal proceedings in Indonesia would be "swift, comprehensive, effective and transparent," and in conformity with international standards of justice. Now, 21/2 years later, that hope is dead. This leaves the United Nations with a special test of its determination to ensure justice for international crimes -- special because the crimes were an attack not only on the great majority of the East Timorese people but also on the United Nations itself: Ten of the East Timorese staff of the U.N. mission in East Timor, which I headed, were among those killed.

The prosecution, and now the court in its first verdict, have bought into the mythical version of the events of 1999 that the Indonesian army has long sought to propagate. According to this view, the violence was between two Timorese factions, with the pro-Indonesian faction indignant at pro-independence bias on the part of the United Nations. The worst Indonesian offense supposedly amounted to a failure to do enough to intervene to check this violence.

That these allegations against the United Nations have no credibility anywhere outside Indonesia should not allow the damaging consequences of their going unchallenged in Indonesia to be underestimated. The killings, rape and extreme physical destruction perpetrated after the overwhelming vote for independence were not an emotional response of the East Timorese losers in the U.N.-conducted ballot. They were a planned and coordinated operation under the direction of the Indonesian army. The army had created the East Timorese militias, and they had begun their campaign of terror and coercion against pro-independence leaders and supporters well before the agreement among Indonesia, Portugal and the United Nations led to the establishment of the U.N. mission to conduct the ballot.

When the worst violence began after the ballot, journalists and international observers were chased out of East Timor and the U.N. mission was besieged in its Dili compound as the massacres were committed. After the Australian-led military intervention restored security, separate investigations, one by the U.N. commission of inquiry headed by a distinguished Costa Rican jurist and one by Indonesia's own national human rights commission, left no doubt regarding the Indonesian army's responsibility for crimes against humanity.

The Jakarta prosecutions of some -- but not all -- of those named by the Indonesian commission have been fatally flawed. The jurisdiction of the ad hoc human rights tribunal was limited in such a way that the full pattern of the Indonesian army's operation in East Timor, a necessary element of crimes against humanity, could not have been laid out before it -- even if the prosecution had genuinely wished to do this.

The first prosecutions were of the East Timorese governor and the Indonesian police chief. The local administration was closely involved with the militia, and the police had responsibility for security during the ballot. But the reality was that the militias operated under the direction of the army; this meant the police could never have dared to act against them, even if they had wanted to. The prosecutors had available to them mounds of evidence of the army's responsibility from the commissions of inquiry, and from the international investigators and prosecutors of the U.N. transitional administration in East Timor. Yet they failed to put a serious case before the court, even as regards the worst single massacre -- of priests and those they were sheltering in a church at Suai.

The accounts given at the trials by military commanders as witnesses or defendants have been founded on the most blatant falsehoods yet seem to have gone unchallenged by the prosecution. At their most ludicrous, they claimed that the security responsibility before, during and after the ballot lay with the U.N. civilian police. Yet Indonesia had insisted on retaining responsibility for security at all stages, and was adamant in restricting the 270 unarmed U.N. police to an advisory role.

What is to be done now? The international commission's recommendation of an international tribunal is still on the Security Council table -- action on it having been deferred to allow Indonesia to act. It is generally right that national prosecutions should be the first option, although it was never likely that they could be credible in this instance.

Now an international tribunal has the best prospect of obtaining the strongest evidence of the Indonesian military chain of command that was operating during the violence, which exists in Australian intelligence intercepts. The case for an international tribunal is unanswerable. It may also appear to be politically inconceivable -- but then, so was statehood for East Timor, which next month will be admitted to the United Nations as an independent country.

* The writer is vice president of the International Center for Transitional Justice and was special representative of the U.N. secretary general for the East Timor popular consultation in 1999.

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