Project Impunity

by

Pat Walsh

In 1999, the Tasmanian Peace Trust lost 2 important people,

Bill Oates and Leo Brown.

They were faithful workers for the cause of peace.

This lecture is dedicated to their memory.

The Tasmanian Peace Trust 1999 Lecture

Held at the Friends Meeting House, Hobart

Sunday, 10 October, 1999

Traditionally East Timor has been thought of as a human rights rather than a peace issue.  Here I would like to highlight the link between the two and its implications for human rights and peace in Indonesia.

Of all the utterly compelling magic and tragic moments captured by the media in East Timor in recent times – and there have been many of both genres – none was more potent or suggestive than the TV pictures of thousands of Indonesian troops withdrawing from Dili as East Timorese danced in the burning streets following the introduction of the Australian led Multinational Force.

There are three points to make about this event in a peace lecture.  The first is that the presence of other troops in the form of the Multinational Force is a reminder that militaries can play a positive role for peace and human rights.  In addressing impunity, our aim is not to put the Indonesian military (TNI) out of business but to recast their role. The second point is that, despite all the horrors experienced in East Timor, peaceworkers everywhere can rightly take heart at the sight of armed soldiers from the world’s fourth most populous nation retreating from tiny East Timor.  It can be done! The downside is, however, that the Indonesian military were not crushed or disarmed but withdrew to be redeployed elsewhere in Indonesia. East Timor’s problem will continue in other communities.  It follows, then, and this is the third point, that if we are truly committed to human rights and peace in our region, we cannot confine our efforts to East Timor. Our task, in collaboration with the many Indonesians committed to peace and justice, is to see that scene from Dili repeated across Indonesia and to have the military withdraw from mainstream Indonesian life.

How can this be done?  An excellent opening has been presented by the recent decision of the United Nations to conduct an inquiry into human rights violations committed in East Timor in the course of this tumultuous year Properly supported this inquiry should expose the Indonesian military to unprecedented scrutiny and challenge, sunlight being the best disinfectant.  And should it lead to the establishment of an International Tribunal – and that should be our goal – it will add enormously to domestic and international pressure to reform the Indonesian military and end the extra-legal immunity it enjoys.  This international inquiry holds the key to fundamental change in Indonesia and should be accorded top of the agenda priority by all organisations concerned to build long term human rights and peace in East Timor and Indonesia.  For this reason, 1 wish to make it the focus of this presentation.

UN CHR Special Session on East Timor

The decision to establish an international commission of inquiry was made by the UN Secretary General, Kofi Annan, in response to a call by the UN Commission for Human Rights which held a Special Session on East Timor in Geneva 23-27 September 1999.  The holding of a Special Session was itself a clear indication of the profound outrage felt by the international community at the Carthaginian magnitude of the devastation in East Timor, particularly after the successful UN ballot of 30 August. This was only the fourth time the Commission has held a Special Session, the previous two occasions being to consider the crises in former Yugoslavia and Rwanda.

Politically the initiative for a Special Session was due to Portugal and the European Union but its credibility owes much to Mary Robinson, the UN High Commissioner for Human Rights. Ms Robinson is taking a personal interest in the tragedy and made her own inquiries ahead of the Special Session.  Indonesia did not permit her to visit East Timor but, during a visit to the region in early September, she heard enough from displaced refugees in Darwin and sources in Jakarta to be convinced that what had happened was not only a grave affront to international standards but had been planned and that the planners should be identified and exposed through an independent inquiry. In her report Ms Robinson said ‘There is overwhelming evidence that East Timor has seen a deliberate, vicious and systematic campaign of gross violations of human rights…. To end the century and the millennium tolerating impunily for those guilty of these shocking violations would be a betrayal of everything the United Nations stands for regarding the universal promotion and protection of human rights’.

Her feeling of outrage and obligation to act is widely shared. On 10 September Australian Greens Senator for Tasmania, Bob Brown, called on the UN Security Council ‘to investigate atrocities in East Timor by establishing a War Crimes Tribunal similar to those currently dealing with crimes in Rwanda and the former Yugoslavia’. Senator Brown pointedly included the Indonesian Defence Minister, General Wiranto, in his list of those he believes should be investigated and indicted.  Others want to fry even bigger fish.  Writing in Inside Indonesia in the middle of last year, Richard Tanter, Professor of International Relations at Kyoto Seika University in Japan, outlined the case for bringing former President Suharto to trial for genocide and crimes against humanity, in part because of his military’s appalling record in East Timor.

International inquiry

The resolution adopted by the Special Session runs to over five pages and is too long to summarise here.  However I would like to make the following points.

First, it should be understood that the Resolution does not itself establish a War Crimes Tribunal or make any reference to a tribunal.  Its purpose is purely investigative, viz to compile evidence of human rights violations and breaches of international humanitarian law by means of investigations carried out by a range of researchers, viz specially appointed experts (some of whom have to be Asian), the UN’s own rapporteurs, and the Indonesian Commission on Human Rights.   It is up to Kofi Annan ‘to make recommendations on future actions’ one of which might be the establishment of a Tribunal. As I will note later, the number of steps and diversity of players does not bode well for the establishment of a Tribunal.

Second, it should be understood that the Inquiry will be limited to the period since President Habibie’s announcement of a vote in January 1999.  Thus the Inquiry will not address Indonesia’s record throughout the 24 period of its occupation since 1975 which means that those in government and the military responsible for policy and violations during the Suharto era can sleep easy.  While this is regrettable, it has to be admitted that a full blown inquiry into the last 24 years would not only be excessively expensive and slow but also politically difficult to win support for in the UN.  A time bound inquiry has a greater chance of delivering justice more quickly and will not suffer for want of evidence given the frequency and blatant character of the violations during the course of this annus horribilis.  The researchers are expected to complete their work by the end of this year.

Third, the resolution makes a clear distinction between the militias and the Indonesian military and is vague about the critical issue of the relationship between the two.  The text explicitly condemns what it calls ‘the activities of the militias in terrorising the population’ but stops short of blaming the Indonesian military.  It merely expresses concern ‘at the lack of effective measures to deter or prevent militia violence and the reported collusion between the militias and members of the Indonesian armed forces and police in East Timor’.  Proving the complicity of the Indonesian military will clearly be a major challenge for the Inquiry and its success or failure in this area will bear directly on the fundamental issue of military impunity.

Fourth, though the Resolution to establish an International Inquiry was carried successfully, the Commission was split on the matter, albeit on fairly predictable European-Asian lines.  The vote was 27 in favour, 12 against, 11 abstentions, and 3 absentees.  The Asian bloc stood firm in solidarity with Indonesia, no Asian state voted for the Inquiry and even States like Japan and the Philippines which are supporting the Multinational Force either financially or with troops voted against.  China and Russia, both permanent members of the Security Council, who have the power to veto the establishment of a Tribunal, also voted against the inquiry initiative.

Australia is not currently a voting member of the Commission on Human Rights.  However, Australia did address the Commission and supported Mary Robinson’s initiative to have an international commission of inquiry established.  Australia’s intervention concluded as follows: ‘It is the Australian Government’s view that allegations of human rights violations in East Timor should be thoroughly investigated through a coordinated, United Nations wide response based on Security Resolution 1264…’ Perhaps the most telling part of the Australian statement came at the end, however, where an express commitment was given to assist the Inquiry: ‘Australia is ready to cooperate as fully as possible with any such investigation and to do whatever is appropriate to ensure that those who are responsible for any violations of human rights in East Timor are held to account for them’.

Indonesian Support

Fifth, while it was not surprising that East Timorese advocates, including the two Nobel Laureates, Bishop Belo and Jose Ramos Horta, should have addressed the Special Session, it is also important to observe that Indonesian civil society was also represented and argued in favour of the establishment of an Inquiry.  Rachlan Subandhi of the Jakarta based PBHI (Indonesian Association for Legal Aid and Human Rights) noted in a telling comment that, because of the violence unleashed by the Indonesian military, the East Timorese people’s ballot process was turned into ‘a life and death ordeal’ when it should have been a happy experience like the democratic elections in Indonesia only a little over two months earlier.  Rachlan went on to urge the UN to view the tragedy of the East Timorese people in the context of the abuse of military power in other parts of Indonesia and to declare the Special Session ‘an historic opportunity to break the cycle of State and military impunity in Indonesia and contribute to the full flowering of democracy and a regime of human rights in Indonesia’.

PBHI’s views are supported by other sections of Indonesian civil society. On 15 September, over 60 Indonesian NGOs who make up the International NGO Forum on Indonesian Development (INFID) also called for the creation of an international tribunal. Their call was part of a wider INFID critique of the Indonesian military whose centrepiece is the abolition of the military’s ‘dual function’. According to INFID, this means

• reducing the military’s role in legislative, executive, and judicial functions
• subjecting the military to civilian authority
• decreasing rather than expanding the military’s ‘territorial’ role
• cessation of the military’s improper involvement in the Indonesian economy
• and reversing the militarisation of Indonesian society

INFID asks the international community to assist in the demilitarisation of Indonesian society by, inter alia, the suspension of international assistance to the Indonesian military through arms sales, training, or other forms of support until the military is brought under civilian control, and – as mentioned – supporting ‘the establishment of an international tribunal to investigate allegations of war crimes committed by Indonesian military personnel in East Timor’.

What then are the chances of winning this one?

On the positive side, there is no doubt that the Inquiry will go ahead and that the UN High Commissioner for Human Rights, Mary Robinson, is fully committed to the project.  Apart from her outstanding legal qualifications, Ms Robinson has taken a close interest in the needs of developing countries making a link, as President of Ireland, between last century’s Great Irish Famine and contemporary issues of poverty and starvation – the latter being an experience which East Timor has twice endured in the last 25 years She is also not new to large scale crimes against humanity.  As President of Ireland she was the first Head of State to visit Rwanda in the aftermath of the genocide there and was also the first Head of State to visit the International Criminal Tribunal for the Former Yugoslavia.

The UN has the power under Chapter VII of the Charter to establish a Tribunal.  Furthermore important legal precedents which are helpful to the East Timor case have been established by the existing tribunals.  The Former Yugoslavia Tribunal ruled that the case did not have to involve ‘international conflict’ and that brutal oppression by rulers against their own people would suffice.  The Rwanda Tribunal also established that individuals responsible for war crimes can be punished.

However, the international process involved in the East Timor case is problematic in two ways.  First, the process towards the establishment of a Tribunal on East Timor is particularly convoluted.  It must pass through the UN Commission on Human Rights, a hurdle it has surmounted but not without difficulty; survive Indonesia’s attempts to block the conduct of the inquiry and whittle away international support; win the support of the next sittings of both the UN General Assembly and the UN Commission on Human Rights; then, last but not least, win the support of the Security Council – two of whose permanent members have already opposed the establishment of the Inquiry.  By contrast, the Tribunals on Yugoslavia and Rwanda were ordered directly by the Security Council, though it has to be admitted they are very expensive and excruciatingly slow.  Only 12 convictions have so far been made in both Tribunals combined. S  \econd, the involvement of the whole international community through the UN in the East Timor inquiry is a mixed blessing.  The Nuremberg Trials worked efficiently, for example, because they were imposed by the four victorious powers and were not ‘restricted’ by the involvement of the wider international community.  As powers occupying a defeated Germany they also had control of the evidence.

Evidence

The issue of evidence gathering on the East Timor question is complex.  In exacting flat earth retribution on East Timor, the Indonesian military and their proxy militias have not only rendered East Timor dysfunctional, they have also destroyed much of the evidence.  Collecting and examining remaining material evidence has been hindered by the slow pace of establishing military security and a shortage of resources and forensic expertise. However, independent data-gathering is underway.  East Timorese NGOs such as the East Timor Human Rights Centre in Melbourne and human rights groups including the International Commission of Jurists and Amnesty International, the UN Thematic Rapporteurs and others are now actively documenting violations and taking testimony from refugees and survivors.

UNAMET, which employed several hundred political officers, civilian police and others in East Timor during the months prior to August 30 ballot, is a vital source of information.  The detailed reports written by these officials and their eye witness accounts will be a unique source of authoritative, independent information for the Inquiry.  The Australian Electoral Commission has given the UN an electronic copy of the electoral role for East Timor.  As an authoritative and definitive list of East Timorese who were alive during ballot period in August, the roll will enable the UN to accurately quantify the number of deaths following the post-ballot rampage.

Another vital source of information are Australia’s intelligence agencies who are known to have highly sophisticated information gathering capacity and detailed knowledge of the activities of the Indonesian military, police and militias in East Timor and their chain of command.  The Australian Government told the UN Special Session on East Timor that it was committed ‘to cooperate as fully as possible’ with the UN investigation and the Foreign Minister, Mr Downer, has informed ACFOA that the Government will be sympathetic to requests for intelligence material.

NATO countries have provided valuable information to assist the Tribunal for the Former Yugoslavia.  In a discussion on rules of evidence for international tribunals in his recent book Crimes Against Humanity, the eminent human rights jurist Geoffrey Robertson comes out strongly in favour of using intelligence.  He writes, ‘One form of surreptitiously obtained surveillance evidence to which no objection should be taken comprises the satellite photographs and electronic intercepts obtained and analysed by intelligence agencies…. The real problem faced by prosecutors has been to extract such evidence .. from secretive intelligence agencies which wish to avoid publicising their methods’ (p 282).  There are, however, precedents for the use of intelligence in an international tribunal – particularly if it suits political goals.  Robertson recounts that in April this year the British Foreign Secretary Robin Cook personally handed to the Tribunal Prosecutor evidence against the Serb leader, Slobodan Milosevic, gathered by GSHQ through signals intelligence.  Interestingly, this occurred after the British Prime Minister had made the indictment of Milosevic for crimes against humanity a NATO ‘war aim’.

Labor and others have called on Australia to share its intelligence with the Inquiry, but this may not suit Australia’s political goals. Apart from procedural considerations, to do so may both expose the Government to attacks within Australia on its handling of the Timor crisis and deepen the rift with Indonesia.  As one commentator puts it: ‘the Government knows its policy responses to intelligence material showing direct links between the Indonesian special forces, Kopassus, and the militias, has the greatest potential to cause embarrassment . Therefore, it will not willingly open that Pandora’s Box1. (Paul Daley, The Age, 1 October 1999)

Indonesia will employ a number of strategies to protect itself.  One will be to retreat again into denialism and, as in the post 1975 invasion period, present the East Timor conflict essentially as a civil war between opposing East Timorese factions which Indonesia did its best in difficult circumstances to manage.  The Habibie Cabinet has already stated it will not cooperate with the Inquiry. It remains to be seen whether the forthcoming new Cabinet and Parliament continue that policy.

Another stratagem will be to take the steam out of the momentum for an Inquiry by going on the front foot and cooperating with the international community on East Timor.  We are seeing signs of this already, helped no doubt by reminders from the US about Indonesia’s parlous economic vulnerability and the threat of sanctions. Like Voltaire on his death bed when a priest asked him shouldn’t he at least renounce the devil, Indonesia does not think this is a time to be making more enemies.

Indonesia will also argue that its own Commission on Human Rights should conduct the inquiry and has, in fact, already instituted such an inquiry with powers of sub-poena, though it will look only at events following the August 30 ballot.  The obvious problem with this proposal is that the Indonesian Commission (KomnasHAM) has no credibility on the East Timor question, least of all with the East Timorese people, and does not have the authority or capacity to take on a project of these political and international dimensions.  Many are therefore rightly critical of the UN Special Session for agreeing to a role for the Indonesian Commission in the international inquiry in an attempt to win more votes for the resolution. However, it has now been agreed to and its cooperation will be helpful to the Inquiry as most of the perpetrators and vital evidence are now in Indonesia, not East Timor.

Crimes against humanity and war crimes

The most powerful argument for the creation of an East Timor Tribunal is the weight of evidence and the intrinsically compelling nature of that evidence.  There is ample prima facie evidence that the Indonesian State and its instrumentalities are responsible for crimes against humanity and for grave breaches of international humanitarian law or war crimes in East Timor.  A simple test of this proposition is to check what is already widely reported about violations in East Timor against Articles 7 and 8 of the Statute of the International Criminal Court (ICC) which was established last year (but will not function, it should be noted, until it has been ratified by 60 states, a lengthy process which may take several years).

Article 7 of the ICC describes ‘crime against humanity’ as any of the following acts (not the complete list) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

• Murder
• Extermination
• Enslavement
• Deportation or forcible transfer of population
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
• Torture
• Rape… or any other form of sexual violence of comparable gravity
• Enforced disappearance
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health

Article 8 of the ICC Statute covers ‘war crimes’ or grave breaches of the 1949 Geneva Conventions.  There is considerable overlap with Article 7 but Article 8 is more specific on the following (selected items only):

• Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
• Taking of hostages
• Intentionally directing attacks against personnel, installations
• or vehicles involved in humanitarian assistance or peacekeeping
• The transfer, directly or indirectly, by the Occupying Power
• of parts of its own civilian population into the territory it
• occupies or the deportation or transfer of all or parts of the
• population of the occupied territory within or outside this territory
• Intentionally directing attacks against buildings dedicated to (inter alia) religion or charitable purposes.
• Pillaging a town or place, even when taken by assault….

Like me, I am sure you have no problem recognising East Timor in these words.  Such has been the violence that it might almost be said they are other ways of saying East Timor.  As they say in court, I rest my case!

Conclusion

In conclusion may I make one or two suggestions on what might be done in Tasmania to assist with this broad project.

In general, the first priority must be to maintain the outrage which has driven the political agenda on East Timor in Australia. Australia is and will remain a key player in relation to all aspects of the East Timor issue, including international initiatives like the inquiry and Tribunal proposal.  Sustained public pressure will be essential to keep Australian policy on track in this area and to counterbalance trade and other pressures in favour of getting back to a business as usual basis.

Two practical ways of contributing to this pressure from Tasmania may be to explore ways of promoting links between Tasmania and Timor in the contemporary reconstruction phase and to ask the Tasmanian Government to provide a temporary safe haven for East Timorese refugees in Tasmania.  Their presence will increase and sustain public awareness and could provide a role for qualified evidence taking by local lawyers and others in support of the international inquiry.  I would also encourage those of you like Jenny Herrera who have a vast knowledge of East Timor and access to collections like those of Michelle Turner to consider what use this evidence can be put to.

However we might have rated our chances of success in the past, project impunity is no longer a matter of tilling at windmills.  The Indonesian military knows it has lost substantial ground and that it has to professionalise.  As the veteran Indonesia foreign correspondent Patrick Walters wrote recently, ‘Probably never in Indonesia’s history has the much-vaunted ‘people’s army’ sunk so low in the esteem of ordinary Indonesians as well as the civilian elite and the international community’. (Australian, 2-3 October 1999)

In addition, it is clear that there is support in important international quarters for change and that civil society is not alone in this mission.  On his recent visit to Jakarta, the US Defence Secretary William Cohen told General Wiranto in public that the military was at a critical turning point and urged the armed forces chief to make ‘the right choice’.  Cohen stated that for the US the ‘right choice’ for the military must include respect for human rights and a preparedness to operate under civilian control.

The Indonesian military is on the back foot. For the sake of all in Indonesia who have suffered under its heel, including the West Papuans and people of Aceh, we have both an obligation and now an opportunity through the international inquiry on East Timor to ensure that it keeps stepping backward.  To co-opt a military term quoted from Geoffrey Robertson at the beginning of this talk, it is up to us to go on the ‘offensive’.

About the Author

Pat Walsh is The Human Rights Advisor to ACFOA (The Australian Council for Overseas Aid).  He was a founding editor of the magazine “Inside Indonesia”.  His work takes him throughout SE Asia.  Pat is based in Melbourne, where he lives with his wife and 3 daughters.