Global Policy Forum

By Ramesh Thakur*

The Truth and Friendship Commission established jointly by East Timor and Indonesia in March, which began work on Aug. 11, is the first example of a bilateral such body: hence its name. The 10-member panel, based in Bali, will be given access to legal documents and is expected to conduct interviews in both countries. But its remit is to reveal the truth and promote reconciliation, not to recommend prosecution of offenders.

East Timor's decision against criminal prosecution was neither easy nor uncontested. Human rights groups and East Timor's Catholic Church have criticized the commission as an attempt to bury the past rather than to pursue justice. A UN Commission of Experts has urged international criminal prosecution by the United Nations if Jakarta does not prosecute the war criminals of 1999, when the Indonesian military and its proxy militias killed at least 1,450 people and left 300,000 homeless.

Criminal law, however effective, cannot replace public and foreign policies. The issue confronting East Timor and Indonesia is primarily political, not judicial. Peace and justice can sometimes collide. Justice is retributive, backward-looking and can be divisive. Peace is integrative, forward-looking and should be conciliatory. The legal clarity of judicial verdicts sits uncomfortably with the nuanced morality of confronting and overcoming, through a principled mix of justice and high politics, a jointly troubled past.

A criminal trial is not always the best avenue to communal healing. In Rwanda, for example, the international criminal tribunal deprived the people and government of the right to decide whether, how and who to prosecute for mass crimes, and what punishment to inflict.

The international criminal justice system also removes the options of alternative modes of healing and restitution with a view to reconciliation that puts the traumas of the past firmly in the past. In South Africa, this was successfully done through the Truth and Reconciliation Commission chaired by Archbishop Desmond Tutu.

In Mozambique, it was equally successfully done through communal healing techniques. In the peace agreement signed a decade ago after 17 years of bitter civil war, all participants were given complete amnesty for acts committed during the war. As warriors, victims, exiles and the displaced came home, communities reverted to traditional healing rituals designed to take the violence out of the individual person and facilitate reintegration into the community. Their belief is that all those affected by the violence - perpetrators and victims alike - need to be purified of its effects.

In Rwanda, the traditional system of people's courts, known as gacaca, has been more productive and efficient, whereas the international criminal tribunal has been time-consuming and expensive, with little to show for its work.

The purely juridical approach to transitional justice traps communities in past hatreds. Traditional justice systems, however, which are restorative rather than retributive, have a better record than international criminal justice of ending savage cycles of retributive violence in deeply conflicted societies.

The choice between restorative and retributive justice may be a painful one; the government and the people may be divided on the issue and the resulting public policy may turn out to be flawed. But the point is that these are profoundly political choices that involve complex tradeoffs, not primarily and simply legal decisions.

East Timor's president, Xanana Gusmao, has declared that justice for the perpetrators of the violence of 1999 must be subordinated to development and social justice. "We fought, we suffered, we died for what?" he asks. "To try other people, or to receive the benefits of independence?" East Timor has recognized the futility of pursuing perpetrators outside its jurisdiction, given that the Indonesian authorities have refused to cooperate. Academic experts might express distaste for such compromises based in realism. But East Timor's destiny is tied to good relations with its powerful neighbor, and the government believes that the Truth and Friendship Commission will bring closure by telling the truth, acknowledging responsibility and apologizing to the victims.

For foreigners to reject this judgment would be to start a new wave of judicial colonialism. The choice is one that only the concerned countries can make. They paid the price in the past and will have to live with the immediate and long-term consequences of the decisions they have made. In the long term, it is also important to remember that a society may choose to begin with one form of justice but move to bring closure with the other, as is starting to happen in Argentina and Chile with respect to their legacies of "dirty wars."

About the Author: Ramesh Thakur is senior vice rector of the United Nations University in Tokyo. These are his personal views.