LH Bulletin V3No4 (Post-UNTAET challenges) Part 2/3
May 14, 2002 00:58 PDT
This email contains the second of three parts of The La’o Hamutuk Bulletin, Volume 3, Number 4, May 2002.
To read the Bulletin with all its graphs, maps and drawings, or to download a printable PDF file, go to http://www.etan.org/lh/bulletins/bulletinv3n4.html
Issue focus: Timor Gap, East Timor After UNTAET
With Independence, What Changes for the Timor Gap?
PetroTimor: Ancient History?
Editorial: Australia: Stop Stealing East Timor’s Oil
Who and What is La’o Hamutuk
Part 2 (this part)
East Timor Faces Post-UNTAET Challenges
To be done: Justice Still Delayed
To be done: 55,000 East Timorese Still Stuck in Indonesia
What’s Behind China’s Support for East Timor?
An Exchange with Activists from Nicaragua
Editorial: Financial Independence
East Timor Faces Post-UNTAET Challenges:
What is to be done?
On 20 May, the people of East Timor begin an exciting and difficult phase of their journey. After nearly three years of United Nations administration, 24 years of Indonesian occupation, and four centuries of Portuguese colonial rule, East Timor will control its own destiny.
The handover of sovereignty will be glorious and historic, and La’o Hamutuk joins in the spirit of the festivities. We especially celebrate the East Timorese people, including the FALINTIL resistance and the clandestine and diplomatic fronts, for their persistent and victorious struggle against a ruthless and brutal occupation. During that bloody quarter-century, East Timor had to fight not only the Indonesian military, but also the complicity and indifference of neighboring governments and global powers.
East Timor’s new government faces huge challenges of diverse origin. Some of the problems derive from four centuries of colonial rule Portugal did little to develop East Timor’s economy or social services. Other problems were created by Indonesia’s brutal 24-year occupation, which decimated the population, destroyed local communities and society, and engendered a culture of dependency, corruption, non-cooperation and resistance. The 1999 post-referendum retaliation ruined much of East Timor’s already inadequate infrastructure and housing stock, and displaced the majority of its people.
Further challenges result from the transitional period since 1999, during which systemic, cultural and human inefficiencies in the UN administration prevented many problems from being addressed effectively.
East Timor had been the poorest “province” of Indonesia, with one of the highest rates of child mortality in the world. After centuries of underdevelopment, poverty is endemic. According to the National Planning Commission, 41% of East Timorese live in poverty and 48% are illiterate. Poverty in rural areas is 46%, and in urban areas it is 26%.
Three years of UN rule
Although the United Nations was on record in support of East Timor’s right to self-determination for many years, it wasn't until 5 May 1999 that the global powers displayed enough political will to take effective action. On that date, the UN, Indonesia and Portugal signed an agreement to hold a referendum, and to endorse Indonesian military control of East Timor during and just after the vote. In evaluating the UN’s performance here, a case can be made to use this date as the reference, rather than the devastated conditions existing when InterFET and UNTAET arrived in late September.
The August 30 referendum succeeded because of the extraordinary courage and commitment of the East Timorese people, the UNAMET staff, and international observers who came to support them. The Indonesian-instigated violence that followed the overwhelmingly pro-independence vote was predicted, but the international community failed to act to prevent it. In the three weeks before InterFET and UNTAET arrived in East Timor, the Indonesian military and their militia proxies executed their carefully planned campaign of destruction and dislocation.
UNTAET came with a mandate from the Security Council. Although one definition of UNTAET’s responsibilities can be derived from the wording of Resolution 1272, a less legalistic interpretation gives the mission three principal tasks:
1. Protect East Timor’s security and handle the humanitarian emergency resulting from the Indonesian occupation and the devastation of 1999.
2. Prepare East Timor for self-government after the transitional period ends.
3. Govern East Timor during the transitional period.
These are all tremendously difficult tasks, and the latter two were brand new for the United Nations. In July 2001, the Transitional Administrator Sergio Vieira de Mello told the UN Security Council: “The mandate with which we were entrusted in East Timor was much more than a catalogue of problems to be solved. It was nothing less than to work with the traumatized and brutalized people of East Timor and together create an independent sovereign state.” East Timor will soon be independent and sovereign, but much of the trauma and many of the problems in the catalogue will persist for a long time.
Up from “below ground zero”
The international community’s first tasks after the referendum were ensuring East Timor’s security and helping East Timor recover from the emergency. These were largely successful, despite the initially slow response to the crisis. Once the Security Council decided to act, it used diplomatic pressure to get the Indonesian government to agree for international military intervention, and to withdraw Jakarta’s soldiers and police who instigated the violence. This enabled the International Force for East Timor (InterFET) and the Peacekeeping Force (PKF) to enter East Timor, secure the territory and restore order after the departure of Indonesian and militia forces.
The forced relocation or flight of 550,000 of East Timor’s 800,000 people was the next big problem. By and large, international agencies and INGOs dealt with this effectively, avoiding significant starvation or prolonged internal displacement. See part 3 for a more extensive analysis about the many East Timorese abducted to Indonesia, nearly 60,000 of whom have not yet been able to come home.
Although the immediate crisis was managed relatively well, the crisis-response orientation of many UNTAET leaders, whose prior experience had been with the UN High Commission on Refugees or other organizations caring for largely powerless victims in an emergency situations, has caused problems for the mission. Instead of seeing the East Timorese people as winners of a long and difficult struggle, they are often seen as disempowered victims. Furthermore, many international staff and media perceive East Timor as a violent society, and some East Timorese have internalized this self-image taught by Indonesia for more than two decades. For example, UNTAET and the international press were amazed at the peacefulness of the August 2001 elections, although there was no reason to expect otherwise. They failed to understand that the violence in this country from 1975 through 1999 was almost entirely manipulated or imposed by Indonesian forces, and that those forces have left the country.
Another unfinished task is dealing with the thousands of perpetrators of a quarter-century of crimes against humanity who remain at large, mostly in Indonesia. Some justice-related issues have been addressed, but most remain unresolved (see below). The major criminals, policy-makers and ranking military officers in the Indonesian and other governments, have thus far enjoyed complete impunity. Unlike many of the challenges in this article, justice will be impossible for independent East Timor to achieve on its own, and continues to require an internationally-supported tribunal and the political will, lacking until now, to compel Indonesia’s cooperation. Progress has been made in grassroots reconciliation and in establishing the Commission for Reception, Truth and Reconciliation, but we hope that the high visibility of the CRTR does not obscure the more fundamental need for justice.
Preparing for self-government
The legacy of UNTAET is mixed. Good progress was made in security, constitution-writing, and women’s participation in government. The Constituent Assembly and Presidential elections were fair and peaceful, and the results reflect popular will.
However, civic education for these elections focused too narrowly on the voting process, and failed to create an understanding of representation and cooperation among elected officials. There was little discussion of how citizens can influence and/or cooperate with government, a highly necessary topic given a generation of popular resistance to an autocratic occupying force. Current debates around little popular consultation, personalized decision making, restricted access to information, and lack of inclusive government are legacies both of the occupation and of the failure to popularize these ideas during the transitional period.
One job which remains for East Timor is the development of an accurate civil registry, to be used as an electoral roll and for planning and delivery of social services, passports, and justice. Although UNTAET claims to have established a civil registry and registered 737,811 people, independent experts estimate that the data is 25% inaccurate, growing worse by the day. Although the registry was used for the 2001 elections (with many resulting problems), the Independent Electoral Commission decided not to use it during 2002. The UNTAET civil registry system uses Siemens computers, and was designed and implemented by internationals with no prior civil registry experience anywhere. It appears to be unsuitable for this society, and impossible to maintain without expensive foreign consultants. Some independent experts recommend that East Timor should scrap the entire system and start from scratch.
Although UNTAET preached good governance, transparency, accountability, democracy and the rule of law to the East Timorese, it showed little of these in itself. UNTAET is a government without a constitution, with all power residing in one man, the Transitional Administrator Sergio Vieira de Mello. As Special Representative of the UN Secretary-General (SRSG), de Mello answers to another man who is not here, relying on a mandate issued by foreign diplomats on the other side of the world. Consultation with East Timorese leaders or anyone else is solely at the SRSG’s discretion. Every law enacted during the Transitional Period begins “The SRSG … promulgates the following…”.
This temporary, benevolent autocracy follows decades and centuries of malevolent ones, and is a marked improvement. However, it failed to practice accountability, transparency or democracy, and gave East Timorese little chance to experience democratic society. UNTAET was characterized by centralized power, no freedom of information, opaque decision-making processes, and many unqualified foreign personnel. With five times as many military and police as civilian personnel, UNTAET is perhaps the most security-weighted government in the world. International staff, often here on short contracts with little relevant experience or understanding of East Timor’s history and culture, owe their loyalty and careers to the UN and the mission, rather than any East Timorese constituency.
Other projects, such as those managed by the World Bank’s Trust Fund (TFET) were rarely better. Most decision-makers failed to ask for public views, accepting input from civil or political society only in reaction to pressure. In East Timor, “consultation” has been redefined to mean “socialization,” with little or no influence from the consultees on the decisions of the consulter.
Nearly two years into the mission, the SRSG told the Security Council “Capacity building has proved both frustrating and difficult in the past, and we in the UN have too often looked for managers rather than mentors, who have thus not seen the need to deliver in this vital area of skills transfer.” Although this has improved slightly in the past year, one of the biggest challenges East Timor faces is the lack of trained, empowered people to manage the systems of government and social services. If more UNTAET international staff had understood from the beginning that they came here to help, not to do, East Timor would have a smaller hurdle to jump.
The international community recognizes the inability of East Timorese institutions to handle some areas especially military, police and fiscal management and will continue to provide international staff. We hope these experts will focus on developing East Timorese capacity, and we believe that there are many other areas where capacity is lacking. We also encourage them to give empowerment and training at least equal priority with task accomplishment. Unfortunately, the UN has decided not to provide extensive continuing support for areas including national planning, health care, infrastructure, communications, and the judicial system.
UNTAET imported much machinery for its own administration, spending tens of millions of dollars on new equipment, including: 1,350 new vehicles, 1,800 desktop computers, 1,500 printers, more than 500 laptops, 200 fax machines, 74 computer file servers, air conditioners, generators, Kobe buildings, and office furniture. Some of these assets will be transferred to the East Timorese administration, but many are being taken away often to warehouses or scrap heaps. East Timor’s new government will have to re-equip itself, without the deep pockets of the United Nations.
Governing during the transition
In addition to preparing East Timor for self-government, UNTAET was responsible for all the basic functions of government: education, health care, economic development, property law, civil service, public safety, defense, border control, justice, transportation, planning, and social welfare. Many of these areas were addressed as well as could be expected given what they were starting with, the inexperience of personnel and the systemic problems of the mission. They are however necessary ongoing functions, and East Timor’s new government must pick up where UNTAET leaves off.
In education, UNTAET and the East Timorese leadership agreed that the best thing the UN could do is to stay out of this area. Many schools have been reconstructed, but equipment is lacking. Instructional materials and curricula need to be written and distributed, complicated by the multitude of languages used in East Timor. The biggest challenge is the lack of experienced teachers: under the Indonesian occupation, nearly all teachers were Indonesians. Since there were no jobs for East Timorese teachers, few people studied education. Now the Indonesians have left, and the vacuum will take many years to fill.
Based on advice from international agencies seeking to minimize East Timor’s budget gap, health care services have been reduced significantly from the Indonesian period. Although we have no statistics, numerous anecdotes attest to life-threatening inadequacies of personnel and equipment, even in major cities. The 25 East Timorese who work La’o Hamutuk’s building in Dili, for example, have had five babies in the past six months four died within days of their birth. At the time of this writing, the Ermera hospital has been without electricity for two weeks, since there is no power in town and no fuel for the generator. Basic medicines are in short supply all over the country, and most rural communities have no access to doctors or nurses.
UNTAET did not significantly address the development of East Timor’s economy. The Mission itself spent less than 1% of its budget on East Timorese staff, with the vast majority of the $2 billion it received going out of East Timor to international staff’s families, imported equipment, or tax-exempt foreign businesses. (See LH Bulletin Vol. 2, No. 1-2.)
The small commercial sector that has developed here restaurants, car rental companies, hotels, supermarkets for expatriates is usually foreign owned; many will close up as soon as the overpaid, free-spending international staffers are gone. Regulations for investment, labor, property rights and other areas essential to the private sector economy were late or don’t exist.
East Timorese anticipate money from Timor Sea oil and gas (see part 1 of this bulletin) in a few years, but in the meantime, there has been little economic development beyond the small coffee industry (see LH Bulletin Vol. 3, No. 2-3) and the local agriculture which provides food for East Timor’s population. Unemployment is incredibly high; the Chief Minister told the UN it could be as much as 80%. The majority of paid jobs are with government and NGOs, and these will be slashed as donor money declines and international staff leave.
East Timor is plagued with countless complications of land and property rights, an issue that UNTAET wisely decided was too complex to handle. The East Timorese nation will have to address these disputes, and competing interests will be extremely difficult to sort out.
Although UNTAET organized or rebuilt some basic systems radio, television (in Dili only), telephone (only in major cities), and limited water, roads and electricity, these services may not endure. According to the National Planning Commission, only 20% of East Timor’s people have access to running water although international UNTAET staff received plentiful supplies of imported bottled water (see LH Bulletin Vol. 2, No. 1-2). Minor upgrades and repairs have been made in Dili to get running water functioning again, but in the districts water is very limited, even in the city of Baucau.
Electricity, until 20 May, has been the responsibility of UNDP and the Asian Development Bank (ADB), funded through bilateral aid from Portugal and Japan and the Trust Fund for East Timor (TFET). In Dili, electric blackouts are daily occurrences; outside Dili, few places have electricity more than a few hours per day, and often not every day. The challenges for East Timor are: how to provide electricity when fuel is so expensive; how to upgrade or even maintain old, often damaged equipment; how to collect payments; how to manage and expand the system?
In telecommunications, Telstra was given an exclusive contract by UNTAET for mobile and fixed-line services. This legal monopoly charged inflated Australian prices and provided limited service. Telstra’s contract expires at independence, and bids from new service providers (Telstra decided not to bid) can be submitted until May 14. Similarly, UNTAET and donors developed radio and television stations, and trained many East Timorese in electronic journalism and production. The future of these media is up in the air, as they are not commercially viable. East Timor’s government cannot afford to sustain them, and the extent of Portuguese support is still being discussed.
Transport, according to one UNTAET official, is “a disaster.” Roads around East Timor are in poor condition, especially in the villages and in the wet season. The large number of UNTAET and PKF heavy vehicles has only worsened the situation, and many repairs are so poorly done that they deteriorate within weeks. UNTAET has relied on PKF engineers for road maintenance, and East Timor will need to develop its own, more extensive, capacity.
The isolation of the Oecussi enclave remains a significant problem (see LH Bulletin, Vol. 1, Nos. 2 and 3 and part 3 of this issue). Despite repeated promises for more than two years, there is still no boat transport between Oecussi and the rest of East Timor. UNTAET attempted to negotiate a land passage through Indonesia, but talks have broken down. As a temporary partial solution, UNTAET allowed a few East Timorese to travel on UN flights to the enclave, but these flights will cease on Independence Day. The unity of East Timor depends on an expeditious solution to this so-far intractable problem.
Many of the more difficult areas police-community relations, domestic violence, appropriate treatment of veterans of the resistance, and other legacies of decades of conflict and occupation will take years or generations to solve. Although East Timor’s government and society will tackle these challenges, international support and expertise will also be needed, and will hopefully become more effective over time.
These are only some of the significant challenges facing an independent East Timor. Much work remains to be done in rehabilitating and reconstructing both public buildings and private homes.
The United Nations is the only institution which could have accompanied East Timor from occupied territory through devastation into transitional government and finally independence, and we celebrate UNTAET for the successful accomplishment of this near-impossible task. But just as significant problems existed when UNTAET arrived, many difficult challenges remain upon their departure. We hope, by this article, to put on the record a summary of East Timor’s state on becoming independent. If things deteriorate over the next few years, the East Timorese government and people will share in the responsibility, but many things are not within their control (see editorial, part 3 of this bulletin). In addition, they have inherited many unworkable or unfinished tasks from UNTAET, as well as its predecessors.
East Timor will rely on financial and technical support from the international community for some time to come, and we hope that lessons learned over the past three years will help both the government here and international agencies apply it more efficiently and effectively. #
To Be Done: Justice still delayed
By the Judicial System Monitoring Programme (JSMP)
A vital part of the Security Council’s mandate to UNTAET to prepare the territory for independence was “the administration of justice” during the transition period. Furthermore, the Security Council demanded that those responsible for the violence in East Timor, particularly during 1999, be brought to justice. At the end of UNTAET’s mission and the full handover to an independent East Timorese government, many questions remain.
In the latest of his reports to the Security Council, UN Secretary-General Kofi Annan acknowledged that East Timor is yet to build a justice system that is able to deal with violent crime, land disputes and the prosecution of serious human rights violations. He noted that “at a time when East Timorese confidence in the nascent judicial system is vital”, a range of problems have impeded the effectiveness of the system that UNTAET has attempted to create.
You do not have to look far to see the deficiencies in the system. In February and March prisoners in Dili’s Becora prison protested over the long periods they have spent in detention awaiting trials. In some cases, many of them have not even been charged with a criminal offence, nor have they had access to a lawyer. The Court of Appeal sits empty as there are not enough judges to hear a single appeal case. The cases before the Special Panels for Serious Crimes are regularly delayed due to poor administrative planning and shortage of interpreters and public defenders. The court in Baucau is once again beset by labor action by judicial staff over security and resource concerns. Many disputes are still handled by traditional village-level mechanisms, and a large proportion of the population does not have access to any information about the formal court system.
So what has been achieved in the justice sector and what exactly remains to be done? Furthermore, why has justice proved such a difficult task for UNTAET? Have sustainable foundations been laid for the future? In order to understand what has been achieved, it is important first to recall the base upon which UNTAET started in 1999. There were very few qualified East Timorese lawyers, the departure of the Indonesian regime had created a legal vacuum in terms of the applicable laws and enforcement mechanisms, and the physical infrastructure of a justice system as in many other sectors was entirely destroyed. In these circumstances, “administering justice” was an enormous challenge, as it involved essentially creating a new justice system from scratch.
What was to be done?
The self-declared tasks of the Justice Department are set out in a “Fact Sheet” issued by the Department in September 2001, as justice was being handed over to the Second Transitional Administration. The Fact Sheet states that the Justice Department’s mandate is to establish a judicial system in East Timor, comprising the following components:
* A two-tier court system, including District Courts and a Court of Appeal
* The Prosecution Service, including the prosecution of both ordinary and serious crimes
* A Public Defender and Legal Aid Service
* A Prison Service.
In addition, the fact sheet noted that the Justice Department is also responsible for the establishment of legal training capacity in East Timor and the training and mentoring of the East Timorese judges, prosecutors, public defenders, court clerks and prison staff.
These elements provide a useful measure for assessing whether UNTAET has discharged its responsibilities, as well as an indication of the challenges facing the East Timorese government once it assumes full control over the process. It is important to recognize, however, that this handover has already begun in relation to justice issues and will remain a gradual process for some time to come. Although during the first transitional government an international UNTAET cabinet member was given responsibility for “Judicial Affairs,” the justice portfolio was in fact handed over to the East Timorese Justice Minister, Dr. Ana Pessoa, when the second transitional government was created in September 2001.
Justice will continue to receive substantial international assistance, including many of the posts in the UN successor mission, after independence. Nevertheless, with the ‘rehabilitation’ phase largely complete, it is timely to focus on the operation of the justice system itself in terms of qualitative outcomes and the transparency and clarity of processes. Only when the justice system delivers just outcomes following fair hearings and credible processes will the confidence of the East Timorese in their legal system be justified.
In terms of achievements, there are now courts, rehabilitated buildings and East Timorese judges and lawyers appointed. Prisons have been established in Becora, Gleno and Baucau, although conditions are basic and may be further reduced after independence. Most of the four District Courts are operating, but not smoothly and each court is at a different stage of evolution with widely differing caseloads. Insufficient resources have been provided to the courts, to the public prosecutors and to the public defenders for them to be able to handle their heavy caseloads. Significantly, an ongoing concern is that there appears to be a lack of overall co-ordination and lack of direction concerning developments within the system and management of the judicial system. In reality only Dili and Baucau District Courts can be said to be functioning. The Oecussi Court suffered first from the lack of a trial judge, then the lack of an investigating judge when that judge was appointed to be the missing trial judge. Suai court has still been operating out of the Dili District Court as the court building in Suai has only recently been rebuilt. In Baucau there have been recurring security problems, including intimidation of judges and prosecutors.
The Court of Appeal has not been operational for several months as international judges’ contracts have ended without adequate planning for the recruitment of replacements. Currently there is no President of the Court of Appeal. This is an extremely important role that is responsible for the overall administration of the entire court system.
In relation to prosecutions, East Timorese prosecutors have been appointed and there are many cases moving through the system. However, the number of cases far exceeds the capacity of the small prosecution service. This has led to many cases being settled informally or referred to “traditional” justice mechanisms. While UNTAET has been unwilling to grapple with the complexity of the widely varied informal dispute resolution procedures that exist within East Timor, significant human rights concerns have been raised over the referral of many cases, including those relating to violent crime and sexual offences. The continued lack of any guidelines for prosecutors and judges has meant that inconsistent and ad hoc practices have developed which undermine the very human rights standards that the UN promotes, including the right to a fair trial and equality before the law. For example, some trials seem to start and then get “lost” in the system, such as the domestic violence case against prominent doctor Sergio Lobo.
The prosecution of serious crimes has received considerable attention throughout UNTAET’s mission. To date, the General Prosecutor has issued over 35 indictments against approximately 100 individuals. Although several have been indicted, no Indonesian troops are in custody even though UNTAET has filed a number of arrest warrants with INTERPOL and the Indonesian authorities. In the 15 cases that have been decided, the court has handed down 23 convictions, no full acquittals and dismissed 2 cases on procedural or jurisdictional grounds before trial.
This is indeed a significant achievement by any standard, especially when compared with the often-cited slow progress of the ICTY and ICTR. However, such comparisons are completely inappropriate when one considers the fundamental differences in the types of cases that have been heard. Almost all of Special Panel cases to date have been relatively simple matters, involving mostly single murder charges under the Indonesian Penal Code with one accused and a small number of prosecution witnesses. No defense witnesses have testified in any serious crimes cases. All the accused who have been tried have been East Timorese nationals, most of whom were low-level militia, often illiterate farmers, who admit their involvement in the events described but who generally claim that they were either forced or ordered to join the militia and participate in the crimes. Very often they are not the main perpetrators, who are still at large and presumed to be in Indonesia.
In addition to the serious administrative and resource related problems that affect the entire court system, probably the most significant challenge to the effectiveness of the Special Panels is the inability of the prosecutors to bring before the court the main planners and perpetrators of the worst human rights violations, as this is dependent on Indonesia’s cooperation. Although a Memorandum of Understanding (MOU) was signed by the Indonesian Attorney-General and UNTAET on 5 April 2000 on issues regarding cooperation in legal, judicial and human rights related matters, Indonesia has refused to comply with the numerous requests made by the Deputy General Prosecutor for Serious Crimes. UNTAET has been criticized for failing to bring sufficient political will to bear on Indonesia in this regard, and there is no doubt that an independent East Timorese government will have far less clout than the combined influence of the international community through the UN.
Furthermore, internal management and resource problems plagued the Serious Crimes Unit (SCU) investigators and prosecutors in the crucial early days of their work. Many of these issues have been resolved in recent months, and if they had been addressed earlier the courts would have faced an even greater backlog of cases due to the administrative problems described above. However, the SCU continues to grapple with the loss of credibility caused by the early problems. In any event, the UN successor mission will include continued funding and staffing for the SCU until mid-2003 at least. Most of the ten “priority” cases that the SCU initially declared it would focus on are now proceeding to the indictment phase. The SCU has also dealt with cases relating to those already in detention, and will also examine other cases that relate to returnees from West Timor. The new Constitution also makes provision for the Special Panels for Serious Crimes to complete their work, although it is unclear how long this will be.
What remains to be done?
The public defenders office and a legal aid commission remain among the most obvious outstanding tasks in the justice sector. The small number of public defenders cannot address the needs of a growing number of people in detention, often on relatively minor charges. The result is not just unnecessarily long periods of pre-trial detention, but also violations of the rights of accused persons, most of whom have little knowledge about the legal process. The public defenders have received only minimal training and have been left in institutional limbo while the fate of their office is debated between the outgoing UNTAET and the East Timorese Justice Department.
What laws to apply is another major unresolved issue. UNTAET appropriately left to the future government of East Timor the difficult policy decisions about what the permanent legal regime will be. Instead, a transitional legal regime was instituted which continued Indonesian law, subject to international human rights standards and UNTAET regulations. While this has facilitated the transition of Indonesia-trained East Timorese judges and lawyers into their new professional roles, there has been a disturbing lack of action by the relevant transitional authorities in terms of ensuring that the Indonesian laws are reviewed for inconsistencies with the other sources of law. In addition, inadequate translation and distribution of UNTAET regulations has been a problem. Other important areas of law, including corporate regulation and land and property claims, are yet to be addressed at all. Legal uncertainty in such important areas has the potential to not only exacerbate existing tensions within East Timor, but also to cause other economic and social problems, including corruption.
Although the new Constitution sets out a different court structure than the transitional one created by UNTAET, it will probably take several years before the new system is fully implemented. In the meantime, certain aspects of the court system are struggling to function at an administrative level. Capacity building of East Timorese staff has been hampered by the lack of appropriately experienced international staff recruited as mentors. In terms what remains to be done, the list is long. Some aspects could be easily addressed with the right support, others remain more complex and time-consuming to solve. While UNTAET has made some important corrective steps in recent months, there is no doubt that the justice system will be dependent on assistance for some time to come.
Of course, the idea of justice for East Timor goes beyond the developments in the formal justice system. Within East Timor, justice is an important part of the ongoing reconciliation process. The Commission for Reception, Truth and Reconciliation has now been established, although it has not yet received all the funding it needs. The Commission’s success will also depend on unpredictable factors, such as the number of refugees returning from West Timor, the extent to which communities are willing to participate, and whether the formal justice system is able to adequately process the most serious cases. Similarly, justice for the crimes committed in East Timor remains to be achieved outside of the country. Although a few trials have recently commenced before the Ad Hoc Human Rights Court in Jakarta, many question whether it will be able to achieve just outcomes, given the prevailing political climate and the limited jurisdiction of the court. (See In brief, part 3 of this bulletin.)
Of greater concern is the declining international support for justice for East Timor, as demonstrated by the recent consensus statement by the Chair of the UN Human Rights Commission in Geneva that diplomatically applauded Indonesia’s efforts. The senior planners and perpetrators of crimes against humanity in East Timor from 1975 through 1999 must be held fully accountable either through an entirely international mechanism or through international cooperation with national attempts within East Timor. Impunity is not acceptable for the serious violations of human rights and the destruction that placed East Timor in such a precarious economic and social position at the dawn of its independence. #
P.O. Box 340, Dili, East Timor (via Darwin, Australia)