Main Cases in Timor
All of the investigations conducted by the Serious Crimes Unit were brought to a close in November 2004 in accordance with Resolutions 1543 (2004) and 1573 (2004) of the Security Council, dated respectively 14 May and 16 November 2004. The Unit’s mandate was officially concluded on 20 May 2005. The Security Council underlined the necessity for the UN Secretariat, in agreement with the authorities of Timor Leste, to preserve a copy of all of the records compiled by the SCU.
Following on from the investigations by the SCU, 95 indictments were filed with the Special Panels against 392 persons and 284 arrest warrants were issued. Of the 95 indictments, 57 concerned crimes against humanity. During the period from 2002 to 2005 in which the Special Panels were in hearing, 55 trials were held involving 87 defendants. Guilty verdicts were handed down to 83 of them and one of the four who was acquitted was later found guilty by the Court of Appeal.
By 20 May, the date at which the mandate of the Special Panels came to an end, charges were pending against 339 persons who remain at large, outside the jurisdiction of Timor-Leste, including the former Indonesian Defence Minister, and Commander in Chief of the Indonesian Army, General Wiranto (eee Trial Watch), six high ranking military commanders and the former Governor of East Timor.
The question therefore arose as to what was to be become of these unresolved cases. In March 2005, the governments of East Timor and Indonesia reached an agreement to set up a Joint Commission of Truth and Friendship with a mandate to conduct investigations into the serious human rights violations committed by the Indonesian armed forces during its occupation of Timor, and in particular during the events of 1999. As a result of this, numerous non-governmental organisations as well as certain UN bodies expressed dismay at this attempt to set aside criminal proceedings in favour of a political arrangement. The following declaration of José Luis Guterres, Timor’s Ambassador to the United Nations, is a good summary of the official position of the authorities following the creation of this Commission: “I do not believe that the government of Timor has the resolve to prosecute high ranking Indonesian military personnel for past human rights violations. The reason for this is that the government is primarily concerned with consolidating democracy, liberty and justice in Timor. In the second place, it is necessary to maintain good relations with Indonesia.” With the creation of this Commission, it seemed therefore that a political arrangement had taken precedence over the legal repression of crimes committed within the context of the Indonesian occupation of Timor.
However, such a solution seemed to be at odds with resolutions of the Security Council. Prior to this, on 18 February 2005, the Secretary General of the United Nations had decided to create a Commission of Experts with the brief to review the prosecution of serious crimes after the closure of the Special Panels on 20 May 2005. On 15 July 2005, the experts completed their report and presented it to the Security Council. The report underlined in a general terms the good work of the SCU and also the necessity for the District Court of Dili to continue its task. Besides this, the report pointed out that “the mandate of the Truth and Friendship Commission included provisions which were incompatible with international norms which do not permit serious crimes go unpunished”. In anticipating the conclusions of the experts, the Security Council had reaffirmed in its Resolution 1599 of 28 April 2005 “the need for credible accountability for the serious human rights violations committed in Timor Leste in 1999.”
Therefore, despite the winding up of the Special Panels, the Timorese legislation, designed to punish the perpetrators of serious crimes committed before independence, remained in place and jurisdiction to judge persons charged with crimes committed between 1st January and 25 October 1999 reverted to the Court in Dili. Fears that were raised following the creation of the Truth and Friendship Commission turned out, to some extent, to be unfounded. In fact, on 25 January 2006, a suspect was arrested and charged with participation in a massacre of civilians in September 1999 within the context of the Indonesian occupation of Timor. Non governmental organisations were therefore reassured by the fact that, despite the controversial terms of the Commission’s mandate, there would be no amnesty for crimes committed during this period. Apparently, however, this is the only arrest to have taken place since the end of the mandate of the Special Panels.
In 2007, the Court of the District of Dili was made up of three international judges, two international prosecutors and two national prosecutors. Six international lawyers and three national lawyers also have their offices there. This presence of international judges and prosecutors was made possible under the Timorese legislation adopted following the Regulations approved in 2000 by UNTAET. The international judges and prosecutors are employed directly by the Timorese authorities, thus enabling them to make up for the lack of training and experience on the part of their Timorese counterparts. Their presence is thus not strictly tied to the ongoing jurisdiction of the District Court of Dili in matters related to serious crimes: such foreign personnel are there, above all, to lend assistance to the Timorese in dealing with common-law cases.
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