International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
September 2008 Issue

Justice Sector Assessment

Judging East Timor

Hon. Phillip RapozaBetween 2003 and 2005, I served as an international judge on the Special Panels for Serious Crimes in East Timor. The United Nations administered that country following a 1999 referendum in which the local population voted overwhelmingly in favor of independence, bringing to a close 24 years of Indonesian occupation that had followed the departure of the Portuguese colonial regime. During the period of Indonesian rule, thousands of Timorese were killed and hundreds of thousands were injured, left homeless or forcibly relocated, with the violence reaching its peak at the time of the referendum. One of the first steps of the UN mission was to establish the Special Panels, consisting of both international and Timorese judges. The role of the tribunal was to try those charged with the many crimes against humanity and other serious violations of human rights committed both by the Indonesian military and their Timorese supporters serving in local militia groups.

The tribunal was the first of its kind in that it operated in the very country where such strife had occurred and included both international as well as national judges. As such the Special Panels was a mixed or hybrid court, in which trials were conducted by several three-judge panels, each consisting of two international judges and one Timorese judge. My international colleagues came from around the world, including Portugal, Brazil, Cape Verde, Guinea-Bissau, Germany, Italy, Sri Lanka and Burundi, although I was the only American to sit on the court.

Prior to the end of the tribunal’s mandate in 2005, it received 95 indictments charging 440 defendants with the most serious of crimes. Unfortunately, owing to the UN’s decision to close the judicial process before all criminal investigations were concluded, charges were never brought with respect to a large number of the murders and other offenses committed against the Timorese people.

One hundred and one defendants eventually came before the Special Panels: 87 were tried to a verdict, 13 had their cases withdrawn or dismissed and one was found not mentally competent to stand trial. This means that of the 440 defendants who were charged, 339 did not come before the court, primarily because they were outside the country. No prosecutions could proceed in those cases, as the court had no authority to conduct trials of defendants in absentia and it lacked an extradition agreement with Indonesia, where the overwhelming majority of absent defendants were located. Although Indonesia had originally promised the UN to extradite to East Timor those members of its military who were under indictment, it later reversed its stance. With that, the possibility of holding accountable those claimed to be most responsible for the carnage in East Timor disappeared. Although the judges of the Special Panels issued over 300 arrest warrants for high ranking members of the Indonesian military, the majority of those warrants are still outstanding and are unlikely ever to be executed.

As a result, the work of the tribunal focused on bringing to justice the large number of Timorese militia who willingly collaborated with the Indonesians in the brutalization of their fellow Timorese. Despite the inability of the court to try those Indonesians with command responsibility for the numerous offenses that were committed, it was nonetheless important to hold accountable the direct perpetrators of those crimes. This was especially true in a largely rural, communal society such as East Timor. It is at the local level that serious crimes become personal and no society can long tolerate a situation in which perpetrators and their victims must continue to live side by side without addressing what happened between them.

Peace and reconciliation cannot be achieved in a society when there are those who would take the law into their own hands. The prosecution and punishment of the direct perpetrators of serious crimes committed in East Timor thus helped to promote national reconciliation and the restoration of peace by bringing a measure of closure to victims, discouraging private retribution and confirming the importance of the rule of law. If the limitations imposed on the Special Panels meant that the judicial process was not always perfect, it was always better than the alternative, which was to leave the festering wounds of the past unhealed.

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© 2008 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Veronica Onorevole and Andrew Solomon.
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