The Indonesia-Timor-Leste commission of truth and friendship: enhancing bilateral relations at the expense of justice.

• Author: Strating, Rebecca

Since the 1999 independence referendum, Timor-Leste (East Timor) has struggled to achieve substantive justice for human rights atrocities committed throughout Indonesia's 25-year de facto administration from 1975 to 1999. In particular, efforts have focused on the violations committed prior to and following the referendum of 1999, including during the three-week "scorched earth" campaign that was actively encouraged by the Indonesian military (Tentara Nasional Indonesia, TNI). During this time, it was estimated that 2,000 people were murdered, 60-80 per cent of physical infrastructure across East Timorese territory was destroyed and 400,000 people were displaced. (1) Timor-Leste provides a unique case study on the international dimensions of pursuing post-conflict transitional justice as many alleged perpetrators of human rights violations have escaped prosecution with the assistance of the Indonesian state. This presents challenges for Timor-Leste as it balances competing international and domestic imperatives. On the one hand, since attaining sovereignty in 2002 Timor-Leste has been responsible for establishing legitimate democratic institutions that possess widespread public support and encourage socio-political order through respect for rule of law. On the other hand, Timor-Leste's national security interests and development capacities depend upon a strong bilateral relationship with Indonesia.

This article examines the establishment of the world's first bilateral reconciliation commission, the Indonesia-Timor-Leste Commission of Truth and Friendship (CTF) in 2005. The Commission, comprising half Indonesian and half Timor-Leste Commissioners, was established independently of the United Nations (UN). The CTF was responsible for finding the "conclusive truth" about "the perpetration of gross human rights violations and institutional responsibility" by conducting an inquiry and "arriving at recommendations and lessons learned". (2) The Commission employed a definition of crimes against humanity that accorded with international law under the Rome Statute, including torture, rape and murder. (3) In addressing past crimes, the Commission made recommendations regarding institutional reform, the development of joint policies, the creation of new human rights institutions and the provision of material and symbolic reparations. This article argues that since the release of the CTF report in 2008, both Indonesia and Timor-Leste have demonstrated a lack of political will in implementing many of the Commission's recommendations. This suggests that the core aim of the CTF was to promote cooperation between Timor-Leste and Indonesia through a unique form of international reconciliation designed to set aside past conflict. (4) Timor-Leste's prioritization of reconciliation with Indonesia was evident in the ways it permitted Indonesia's avoidance of responsibility for human rights violations committed by senior military and civilian figures in 1999.

Following the independence referendum in 1999, Timor-Leste faced a number of divergent challenges in implementing post-conflict, transitional justice mechanisms to promote democratization and a human rights culture. (5) The first challenge involved achieving "substantive justice", including punishing major human rights crimes committed in the past. This was necessary for instituting the rule of law, which requires an understanding among citizens that no one is above the law. Punishment allows states to deter crime and instil trust in new judicial structures. Democratization and internal sovereignty is supported by the establishment of a socio-political order based on widespread public acceptance that state-based laws and judicial institutions are valid and effective.

Timor-Leste's second objective was fulfilling international legal commitments. International justice is characterized by the global articulation of basic human rights and peremptory norms outlawing crimes against humanity. In the twenty-first century, an international obligation of states to pursue individuals who bear responsibility for gross violations of human rights has formalized. International human rights instruments, such as the 1998 Rome Statute, are designed to limit the extent to which political leaders and military personnel can escape prosecution by using the norm of sovereignty as a protective shield. (6) Fulfilling these requirements is necessary for Timor-Leste to consolidate its external political legitimacy as a member of the international community.

Internal reconciliation was another priority as the state needed to integrate pro-autonomy supporters back into their communities. In 2001, the Commission of Reception, Truth and Reconciliation (CAVR) was established to encourage community reconciliation by recording human rights abuses and promoting non-judicial ways of dealing with low-level offences. (7) Timor-Leste also sought international reconciliation with Indonesia to benefit border security, trade relations and development projects across a range of sectors. The establishment of the CTF was designed primarily as a strategy for encouraging reconciliation and friendship with Indonesia. Both the CAVR and CTF promoted a form of restorative justice concerned with moving beyond the conflict.

Both commissions made recommendations relating to symbolic and material reparations. (9) Timor-Leste is signatory to international covenants that provide rights to remedy for victims of human rights abuses. (10) However, little has been done to press Indonesia on its responsibilities to provide compensation for victims of human rights abuses in 1999. Instead, Timor-Leste has emphasized its bilateral relationship with Indonesia, reflecting its dependence upon Indonesia's assistance in achieving socio-economic development and foreign affairs objectives, including applying for membership of the Association of Southeast Asian Nations (ASEAN). (11) It also highlights Timor-Leste's insecurities arising from its limited military and defence capabilities and past experiences with colonialism. (12) There is a continuing awareness among the Timor-Leste leadership that Indonesia violated the security of its people in the past. While it seems unlikely that Indonesia will actively threaten Timor-Leste's sovereignty in the future, in 2010, Timor-Leste's Prime Minister Xanana Gusmao declared: "As a territory, seated ... between Australia and Indonesia--giant neighbours with different backgrounds, which have been in the past able to adopt a common policy in relation to our destiny--East Timor has to avoid falling into political naivety." (13) Timor-Leste has sought to mitigate any potential threat posed by Indonesia by promoting friendship and cooperation, which assists in explaining the unwillingness of Timor-Leste's leaders to press Indonesia on the issue of substantive justice for past human rights violations. (14)

Establishing Transitional Justice in Timor-Leste: 1999-2005

Timor-Leste's transition to sovereign statehood began when 78.5 per cent of voters in the 1999 referendum elected to become independent from Indonesia. Unlike many other former colonies, Timor-Leste was provided significant international support in establishing democratic institutions, including an independent judiciary, virtually from scratch. The UN Security Council Resolution 1272 created the United Nations Transitional Administration in East Timor (UNTAET) in August 1999 to build new institutions and obliged it to ensure that "those [persons] responsible for such violence be brought to justice" and "bear individual responsibility" for their past crimes. (15) This was a significant challenge: the scorched earth campaign--named Operation Clean Sweep--destroyed what little judicial infrastructure existed in Timor-Leste. Working in the UN Legal Office, Hans Strohmeyer reported that "not a single judge, prosecutor or attorney was left, the court buildings were destroyed or stripped of any useful materials, including the electrical wiring, legal libraries were removed or dislocated, the prisons were emptied." (16) By the time UNTAET arrived in Timor-Leste, less than ten lawyers were left in the territory, all inexperienced. (17) By early 2000, it was clear the UN Legal Office would be responsible for providing justice in domestic courts. (18)

In October 1999, a UN-sponsored International Commission of Inquiry was instituted to gather and compile information on acts that took place in 1999 which may have breached international humanitarian law and to examine possibilities for pursuing justice. (19) UN Secretary-General Kofi Annan emphasized the responsibilities of the international community in investigating and punishing those responsible for rights violations and to "help safeguard the rights of the people of East Timor, promote reconciliation, [and] ensure future social and political stability". (20) The Commission of Inquiry report, released in January 2000, recommended the creation of an international tribunal partly due to the likely implication of senior TNI members. (21) Timor-Leste did not have the necessary resources to operate such an extensive tribunal, and it could not be certain that convictions would be secured in Indonesian courts.

Indonesia rejected the idea of establishing an international tribunal, instead reassuring the international community of its commitment to justice by signing a Memorandum of Understanding (MoU) with UNTAET in April 2000, which included provisions for sharing evidence, facilitating the participation of witnesses and extraditing accused perpetrators. (22) Indonesia committed to establishing its own human rights tribunal to investigate and prosecute crimes committed in Timor-Leste. These assurances in part contributed to the decision by the UN to ignore the advice of its own inquiry and abandon the establishment of an international tribunal. (23)

Instead, UNTAET established a "hybrid" tribunal...