Comparative Analysis Between Ad Hoc Human Rights Court in Indonesia and Special Panel For Serious Crimes in East Timor

[1]

By:

Andrey Sujatmoko[2]

  1. A.     Historical Background

East Timor is located in the eastern part of Timor, an island in the Indonesian archipelago that lies between the South China Sea and the Indian Ocean. East Timor includes the enclave of Oecussi, which is located within West Timor (Indonesia). After Indonesia, East Timor’s closest neighbor is Australia, 400 miles to the south. It is semiarid and mountainous.[3]

East Timor has become part of Indonesia after integrating to the Republic of Indonesia base on the Balibo Declaration. The declaration was declared by some local pro-Indonesia political parties, such as APODETI, KOTA, UDT, on 30 November 1975 in Balibo, East Timor. Previously, East Timor was a Portuguese colony since the sixteenth century. Further, under Decree of People’s Consultative Assembly of the Republic of Indonesia (MPR) Number 6 of 1978 on Integration of East Timor to the Republic of Indonesia and Act Number 7 of 1976 on Ratification of Integration of East Timor to the Republic of Indonesia and Establishment of East Timor Province. After that, East Timor officially became the 27th province of Indonesia.

The U.N. and international community did not recognize the integration. They considered that integration was illegal and it was not committed in accordance with international law norms.  In 1960, the U.N. has also considered that Portugal was the administering power in the territory of East Timor. East Timor has a non-self governing territory status under the supervision of the U.N.[4]

Concerning to East Timor, on 27 January 1999 the government of Indonesia issued two options to determine the future of East Timor people whether it would become an independent state or an autonomous province of Indonesia. On 5 May 1999, Indonesia, Portugal and the U.N. concluded an agreement concerning implementation of referendum in East Timor, to maintain peace and security in East Timor during the ballot. The result of ballot was shown that most of East Timor people choose the independence option (344.580 persons or 78,5%), rather than autonomy (94.388 persons or 21,5%).[5]

Significant violence taken place in the early months of the year and continued after the agreement was concluded. That violence escalated immediately before and continues several weeks after the ballot on 30 August 1999. The U.N. estimated that more than 1300 people were killed through out the violence, and that serious incidents have occurred involving rape, torture, assault, and massive destruction of property.[6] After the announcement of the ballot, there were also violent acts against the civilian population and destruction to civilian residence in a large scale. Base on these facts there is strong indications that had taken place gross violations of human rights and violations of humanitarian law.

To respond the violence in East Timor, on 15 September 1999 the U.N. Security Council issued Resolution Number 1264 to condemn the violent acts that occurred after the ballot. The resolution also urges the government of Indonesia to try those responsible for the violence.  According to the resolution, Indonesia has international an mandatory obligation to try those responsible through its national court.

The violence that occurred in East Timor then push the government of Indonesia, at that moment lead by President B.J. Habibie, through the Komnas HAM to establish an Inquiry Commission for Human Rights Violations in East Timor (KPP HAM) on 22 September 1999. Also, on 8 October 1999 the President Habibie promulgated Presidential Decree (Perpu) Number 1 of 1999  on Human Rights Court. The Perpu then replaced by Act Number 26 of 2000 to regulate the establishment of Ad Hoc Human Rights Court in Jakarta.

On 23 September 1999, the U.N. Commission of Human Rights in Geneva held a special session concerning situation in East Timor. The special session has passed Resolution Number 1999/S-4/1 when it asked the government of Indonesia, among others, to cooperate with the Indonesia Human Rights Commission (Komnas HAM) to guarantee that those who responsible for the violence and systematic violations of human rights would be brought before a court. This resolution also asked to the U.N. Secretary General to establish international inquiry commission that consists of experts its expert from Asia.

Concerning the transition of authority in East Timor after the ballot, the U.N. Security Council acted under Chapter VII of the U.N. Charter to issue Resolution Number 1272 on 25 October 1999 to establish United Nations Transitional Administration in East Timor (UNTAET). According to the resolution, UNTAET will be enforced with overall responsibility for the administration of East Timor and will be empowered to exercise legislative and executive authority, including the administration of justice. Based on its competence, UNTAET has an important role dealing with the settlement of human rights violations in East Timor.

In order to address past human rights abuses in East Timor, legally, there have been two judicial institution models for crimes committed in the same territory. The government of Indonesia chose the Ad Hoc Human Rights Court in Jakarta and the UNTAET as an administration power created the hybrid tribunal namely Special Panels for Serious Crimes in Dili.

This paper will focus on the issue the judicial institutions that have been established in Indonesia and East Timor for addressing the past human rights violations in East Timor, especially before and after the ballot in 1999. It will also include a comparative analysis between the two institutions, regarding the structure of the institutions, their legal basis, jurisdiction, and staff. The obstacles and difficulties that these courts have met will be outlined in this paper as well. It is not the intention to make an analysis of the cases that have been tried before the two courts.

  1. B.     Post the Ballot Reports in East Timor

Below are some of the results found in the investigation reports, in brief. There are reports made by several institutions that have been involved in East Timor, to describe the facts that found in East Timor:

  1. Report of the High Commissioner for Human Rights Situation in East Timor[7]

According to the report made by the U.N. High Commissioner for Human Rights,  after the ballot in East Timor gross violations of human rights had occurred. This report was sent to the fourth special session held by the U.N. Commission for Human Rights on 23-24 September 1999 in Geneva. These are some particular notes of the report:

  1. The term “grave human rights violations” is used in this report to explain gross violations of human rights, it includes: expulsion, killing and destruction of property. The militia groups and the state apparatus elements had involved in these crimes:

“In announcing the results of the ballot,…, the Secretary-General Asked all parties to bring an end to the violence which…Regrettably, this call was not followed and violence by different militia groups, in which elements of the security were also involved, targeting those who supported the independence of East Timor, as well as United Nations and other international staff, led to grave human rights violations. Thousands of East Timorese were expelled or fled from territory. Many were killed. Property was destroyed.”

  1. After the announcement of the result of the ballot on 3 September 1999 there was an escalation human rights violation in East Timor, i.e., wanton killings, forcible expulsions, rapes, enforced disappearances and arson. Those will be explained below:

1)      Willful Killing

Many activists and pro-independent were killed in many places as an act of retaliation or revenge, because they supported the independence option. Such incidents took place in Dili and Suai. It was explained as follows:

“Many pro-independence activists and other community leader, including the clergy, are reported to have been killed in reprisal for their support of the independence option. There also reports of mass killings at various locations, including in Dili and a camp for displaced person in the church in Suai. Reports have been received that pro-integration militia murdered approximately 35 young men traveling on the Dobon Solo ferry from Dili to Kupang on 7 September 1999.”

Similar cases have also been reported from other places, like in Maliana (15 persons), Holo Ruo (15 persons), Suai (approximately 100 persons) and Dili (15 persons), i.e.:

“…since the beginning of September, at least 20 displaced persons have been killed by militia elements in the town of Maliana, and that another 15 people have been arbitrarily executed in the town of Holo Ruo. Fifteen Catholic priests and the director of the humanitarian organization Caritas, together with many of his staff, have reportedly been summarily executed in Dili. It is further alleged that in early September, at least 100 East Timorese Catholics were killed in Suai when their church, where they were seeking shelter, was set on fire. Priest and nuns have reportedly now gone into hiding fearing for their lives, after having been threatened and attacked by militia forces. Reports also suggest that militia groups have haunted down and summarily executed an unknown number of independence supports in camps in West Timor.”

Attacks on the civilian population by the militias at Bishop Belo’s residence caused the death of 40 persons:

“In the attack at the residence of Nobel Peace Prize laureate Bishop Carlos Belo militiamen reportedly hacked to death some 40 persons in the courtyard while TNI soldiers fired into the Bishop’s residence from the street.”

2)      Enforced Expulsion

Between 120.000 to 200.000 persons reportedly have been subject to enforced displacement. Most often, it was enforced expulsion. There is also indications that the enforced displacement or enforced expulsion is committed wantonly and systematic.

It is also reported that all of city of Dili’s population have been subject to  displace or lifted to the hills and forests. They were reportedly being intimidation and violence.

Any places where used as a shelter (like church, school, house) by people who are displaced persons in Dili, Aileu, Ermena and Maliana presumably have been attacked and they massively displaced to the camp in West Timor. This report was also received from West Timor area. There was also indication that the militias have been sweeping in refugees camps with the intention to find students, intellectuals and activists, then took them away.

On 1 September 1999, approximately 1.500 persons were sheltered around the UNAMET office after they had been forced to run away from the schools where they sheltered before. On 6 September 1999, there were report of attacks by armed militia on the office of the International Committee of the Red Cross (ICRC) in Dili which was used as shelter by approximately 2.000 refugees.

3)      Rapes and Sexual Violence

Based on the report of Kalyanamitra (Indonesia’s NGO), several women had been raped between 7 and 10 September in Dili and also in West Timor camp i.e.:

“According to reports from Kalyanamitra, women were being raped and sexually harassed by militia and Indonesian military in Dili between 7 and 10 September. Sexual violence allegedly also occurred during the forced movement of people to West Timor. Reports have been received that many women were raped by militia on a boat taking displaced persons from Dili to West Timor. Furthermore, information has been received that women were being raped in the camps in West Timor.”

The U.N. High Commission for Human Rights also received reports of would involved the rapes in three camps located between Suai and Atapupu:

“…the High Commissioner heard reports that there were three camps between Suai and Atapupu where young women had been held against their will by the militia and raped repeatedly. This information was also corroborated by a member of the Indonesian Commission for Human Rights.”

4)      Enforced Disappearances

The U.N. High Commission for Human Rights has received reports on enforced disappearances to approximately a thousand of people, for example to them who sheltered at the Bishop Belo’s residence on 6 September 1999, i.e.:

“OHCHR has received reports of thousands of involuntary or enforced disappearances. For example, thereabouts of some 2.500 persons who had sought shelter at Bishop Belo’s residence and who were marched off at gunpoint by militia and TNI on 6 September are unknown.”

5)      Arson

There was destruction in a large scale to the dwellings and business centers in Dilli and Maliana. The perpetrators were protected by the police and military of Indonesia:

“In Dili, reliable resources reported that hundreds of houses have been burned, the entire business district completely destroyed and almost all houses emptied of their valuable contents…On 2 September, the militia rampaged through Maliana all night, burning at least 20 houses. In all cases those involved have acted with impunity and been given protection from the Indonesian police and military.”

  1. Reports of International Commission of Inquiry on East Timor (ICIET) and the U.N. Special Rapporteur

After visiting Indonesia and East Timor, in the report submitted to the U.N. Secretary General, the investigation team established by the U.N. (ICIET),[8] concluded that there occurred gross violations of human rights and violations of humanitarian law and had taken place in systematic and widespread in East Timor.[9]

“There were patterns of gross violations of human rights and breaches of humanitarian law which varied over time and took the form of systematic and widespread intimidation, humiliation and terror, destruction of property, violence against women and displacement of people.”

Three of the U.N. Special Rapporteurs who visited on October 1999 in East Timor had had the same conclusion with ICIET’s conclusion. They found that violations had taken place as the above report: [10]

“Concluded that violations of international humanitarian law and human rights law, including murder, torture, sexual violence, forcible transfer of population and other persecution and inhumane acts had been committed on a scale that was widespread or systematic or both.”

  1. Report of the Inquiry Commission for Human Rights Violations in East Timor (KPP HAM)[11]

The KPP HAM was established by the National Commission of Human Rights (Komnas HAM) on 22 September 1999 by Decree Letter Number 770/TUA/IX/99 by considering Act Number 39 of 1999 on Human Rights and Presidential Decree Number 1 of 1999 on Human Rights Court. The KPP HAM has mandate to collect facts, data and information concerning human rights violations in East Timor that occurred from January 1999 until the People’s Consultative Assembly (MPR) issued the decree on October 1999 to authorize the result of secret ballot in East Timor.

The KPP HAM comprised nine individuals from Komnas HAM, together with leaders in the field of human rights. Its work was supported by a research assistant support team tasked to provide technical help for field investigation and data processing; it consisted of 12 individuals in the Assistance Team, 8 persons in the Information and Documentation Team, 7 persons in the secretariat and 3 resource persons. The KPP HAM explained in its report that for purpose of accuracy, it focused its inquiry on all those involved in human rights violations and targeted five “special” cases, namely incidents at the Dili Diocese, Bishop Belo’s house, Liquiça, Maliana and Suai.[12]

In the Executive Summary of Human Rights Violations Investigation Report in East Timor, the KPP HAM concludes that there have been gross violations of human rights. As stated, that: “Base on fact, document, information and witness from many sources, the KPP HAM not only found the act having categorize as gross violations of human rights that become responsibility of state (Indonesia), but all of those are gross violations of human rights which could be proceed under universal jurisdiction.”

In addition, the KPP HAM had found that gross violations of human rights were  killing, extermination, slavery, expulsion and enforced displacement and any other inhumane acts to civilian population. Those acts violate the right to life, right to personal integrity, right to liberty right to move and to residence, right to property.

While, concerning mass and systematic killing, it was also said that there were enough information and evidence that violence had been committing and planning to kill several people based on political reasons and any other discrimination forms. The killing was so cruel and brutal. It had been occurred in civilian population residence, church, including in refugee camps, military and police posts.

Enforced disappearances occurred since announcement of the two options (autonomy or independence). Civilians populations who have difference political belief have been intimidated, threaten and disappeared.  Enforced disappearances have been committed by the militia who suspected having support by state apparatus to kidnap or arrest people and then some of them have been executed.

Besides, evidence has been found by the KPP HAM concerning destruction and burning by massive, well organized and systematic methods in many cities, like in Dili, Suai, Liquisa, etc. This arson was committed to dwellings, plant and cattle, shops, hotels, office buildings, places of worship, schools, hospitals and other public property, also military and police post.

In the conclusion and recommendation of its report, the KPP HAM expressed as follows:

”… the KPP HAM has succeed to collect fact and evidence that it was a strong indication that there have been gross violations of human rights committed in a well organized, systematic, and also in a large scale and widespread, such as a massive killing, torture, enforced disappearance, violence against women and children (including rape and sexual slavery), enforce displacement, scorched earth and destruction of property. All of those crimes were crimes against humanity…”

Concerning the perpetrators, the KPP HAM reported that there was involvement from of the TNI and Polri personnel and militia. It was also concluded that violence that occurred in East Timor starting from the announcement of the options until after announcement of the result of ballot was not caused by a civil war but as a result of systematic violence. Again, it was accentuated in the conclusion of the report:

”…Fact and evidence showed that civilian and military officers, including the police are worked together with militia. Those have created conducive situation and condition for occurring crimes against humanity committed by civilian, military, police officers and group of militia. The power of militia groups who have a different names in each location, directly or indirectly established by the Resistance of People’s (WANRA), the People’s Security (KAMRA) and the Self Reliance Forces (PAMSWAKARSA) which directly or indirectly to be armed, trained, supported by civilian, military and police officer…”

It was also said in the report that, all of crimes against humanity were the responsibility of three groups of perpetrators, i.e.: perpetrator who directly located in the field, those were militia, police and military officers; those who controlled the operation, including, but  not limited on, civil bureaucracy, in particular the regent, governor and military leader and local police; a holder of responsibility of national security policy, including but no limited on, the high military rank officers actively or passively who have involved in the crimes.

The final recommendation of KPP HAM was to request, through Komnas HAM, that the Attorney General’s Office investigate and prosecute, in the Ad Hoc Court those suspected of gross violates of human rights in East Timor that occurred from January to October 1999.

C.  Analysis of the Type of Crimes

Based on the above reports we could identify some violations of international law norms, particularly, human rights norms, which have indicated by the crimes against humanity,[13] such as, killing, torture, persecution, enforced expulsion/displacement, rape, sexual violence and enforced disappearance.

All of those crimes are gross violations of human rights. That because the human rights being violated are categorized as non-derogable rights[14] which cannot be violated in any circumstances whatsoever (in times of war of peace) and committed in systematic or has widespread impact. Base on the characteristic, such as directed to the civilian population, committed in systematic or caused widespread impact, the said crimes are having categorize as crimes against humanity.[15]

The definition of crimes against humanity is regulated in Article 7 of the Rome Statute, as follows:

“…”crimes against humanity” means any of the following acts when committed as part of widespread or systematic attack directed against any civilian population, with the knowledge of the attack: (a) Murder…(c) Deportation or forcible transfer of population…(f) Torture…(g) Rape, sexual slavery,…(h) Persecution against any identifiable group or collectivity…(i) Enforced disappearance of persons…”.

The key element on crimes against humanity is the widespread or systematic nature. The nature of widespread could be indicated from a sum of victims in a massive nature, frequent, repeatedly, large scale also committed collectively with considerable seriousness. The nature of systematic shows pattern or plan concerning the methods that would be done and reflecting “a pattern or any method”, wholly organized and use a permanent patterns.[16]

The term widespread refers to the sum of victims, while systematic is indicated by any form of evident pattern or methodical plan. Systematic also means as an action that of a sequel from preconceived plan or policy and often organized. So, it is not random, but an action which caused a sequel or continued action. Furthermore, the term of widespread or large scale means that the action is directed against a multiplicity of victims.  So that it is not an isolated act. The policy is not necessarily formulated and could be normatively concluded in the field. Policy may come from state whose its implementation is done through institutions, personnel, and human resources of that state. But, it may also come from a non-state actor, such a de facto entity that control any territory, a terrorist group or an organization.[17]

From other analysis, it is also concluded that there have been violations of international humanitarian law norms, particularly the Geneva Conventions 1949,[18] considering that the said violations occurred in armed conflict.  Crimes directed civilian population, killing, torture, enforced expulsion/displacement to civilian population, destruction, and arson against civilian objects massively are categorized as grave breaches of humanitarian law which are identical with war crimes. Those are regulated in Article 8 (2) of Rome Statute as follows.[19]

Killing case against two local staffs of UNAMET has also found in Maliana by the KPP HAM during destruction of the city process, also attack and destruction to ICRC’s premises in Dili. Those crimes are categorized as war crimes which violate law and custom of war as regulated in Article 8 paragraph (2) (b) (iii) as follows: “Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilians objects under international law of armed conflict.”

As with war crimes, crimes against humanity is a crime under international law. These principles would be applied to the perpetrators of crimes under international law:

  1. Everyone committing crimes under international law is responsible for its act individually (individual criminal responsibility)[20] and must be punished (no impunity);
  2. Position as head of state or government official is not automatically releasing the perpetrator to responsible for its act (irrelevance of official capacity)[21] under international law.
  3. Universal jurisdiction would be applied,[22] it means that every state has the right to arrest, try, and punish or extradite the perpetrators without limited to, such as, nationality of the perpetrators, nationality of the victims, place where the crime was occurred, place where the perpetrators was arrested.[23]

The criminal responsibility of individuals for certain gross violations of human rights and human rights law is now beyond dispute. But to hold individuals accountable for their abuses in a meaningful sense, rather than merely theoretical one, requires the creation and engagement of specific mechanisms designed for this purpose.[24]

Although the international legal process has elaborated a corpus of law providing individual criminal responsibility for various atrocities in peace and war, domestic legal systems remain the primary for holding individual accountable for these acts. National tribunals have the principal responsibility for such trials, as part a state’s duty to uphold the rule of law. Moreover, because such tribunals are closest to the scene, the perpetrators, and the victims of atrocities, they represent the starting point for considering accountability options.[25] As a response to such violations, we can find national and international models, even combination of both (hybrid tribunal).

As a response to such violations, we can find national and international models, even combination of both (hybrid tribunal). Such courts are “hybrid” because both the institutional apparatus and the applicable law consist of a blend of international and domestic elements. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards. The hybrid model has developed in a range of settings, generally post conflict situations where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with sheer number of cases, as in Kosovo.[26] In Cambodia, the hybrid tribunal will start to try genocide cases that occurred during the Khmer Rouges era next year.

D. Ad Hoc Human Rights Court in Indonesia

Following the pressure from international community and also from the U.N. concerning the situation in East Timor, the government of Indonesia has been taken into account to prepare legal mechanism to address gross violations of human rights cases in East Timor. It seems that the government of Indonesia prefers to establish the national court as the forum to try those who involved in East Timor, rather than entrusting the said case to the international tribunal. It was understandable, because, base on the facts,  the state apparatus have been involved in the said cases. Then, it can be predicted that the majority of the accused would be directed to f the TNI or Indonesian Police personnel (and militia group as well).

Pursuant to it, President B.J. Habibie was issued Government Regulation in Lieu of an Act Number 1 of 1999 on Human Rights Court. This regulation is the first legal basis for the establishing the Human Rights Court in Indonesia. Then, this regulation was replaced by Act Number 26 of 2000 on Human Rights Court. Concerning the establishment of the said court it is also dealing with Article 104 paragraph 1 Act Number 39 of 1999 that provides for the establishment of a human rights tribunal within the District Court to hear gross violations of human rights.  Based on this act, then, Indonesia promulgated Act Number 26 of 2000.

Indonesia has taken the judicial process to address human rights violations in East Timor by establishing Ad Human Rights Court for East Timor in Jakarta. The Court was established by Act Number 26 of 2000 on Human Rights Court. The Court has the task and authority to hear and rule on cases of gross violations of human rights.[27] This Act also regulates that for the gross human rights violations cases that had occurred prior into force of this Act could be heard and ruled on by an Ad Hoc Human Rights Court. The Ad Hoc Court established based on the recommendation of the parliament for any particular case under a presidential decree.[28]

A Human Rights Court has also the authority to hear and rule on cases of gross violations perpetrated by an Indonesian citizen outside the territorial boundaries of the Republic of Indonesia.[29] According to this Act, the meaning of gross violations of human rights is the crime of genocide and crimes against humanity.[30] Those crimes were derived from the Rome Statute 1998 on the International Criminal Court, but not including war crimes and the crime of aggression. The absence of war crimes in this Act was intentionally designed and calculated by the government in order to shield some members of the TNI for responsibility of war crimes that occurred in East Timor.

Investigation and prosecution gross violations of human rights cases will be conducted by the Attorney General.[31] Concerning to its task, the Attorney General may appoint an ad hoc public prosecutor, who may be a member of the government and/or a public constituent.[32] While inquiries into cases shall be conducted by the National Commission of Human Rights (the Komnas HAM).[33] And the Komnas HAM may at anytime request a written statement from the Attorney General concerning the progress of investigation and prosecution of a case.[34]

Concerning the judges, the Court shall be conducted by a panel of judge consisting  five persons, comprising two judges from the career judges and three ad hoc judges and shall be chaired by a judge from the relevant Human Rights Court.[35] Ad hoc judges shall be appointed and dismissed by the president upon recommendation of the Chief Justice of the Supreme Court. They shall consist of 12 persons and shall be appointed for a period of five years and may be re-appointed for one additional period of office.[36]

The Court has only jurisdiction to try gross human rights violations, i.e., crime of genocide and crimes against humanity.[37] Relating to the jurisdiction of the Court, the president of Indonesia issued a Presidential Decree Number 53 of 2001 on Establishment of Ad Hoc Human Rights Court on the District Court of Central Jakarta. In order to determine the jurisdiction of the Court concerning the place of the occurring crime (ratione loci) and time of the occurring crime (ratione materiae), again, the president also issued Presidential Decree Number 96 of 2001 to replace Presidential Decree Number 53 of 2001. In the Presidential Decree Number 96 of 21, dealing with the crimes in East Timor, the court has jurisdiction only limited in Liquica, Dili and Suai and only restricted for crimes that occurred in April and September 1999. Dealing with another case, the Court also has jurisdiction to try gross human rights violations that occurred in Tanjung Priok, Jakarta (also known as Tanjung Priok Case) that occurred in September 1984.

The Court has used the Act Number 26 of 2000 for gross violations of human rights cases and the Indonesian Code of Criminal Law (KUHP)[38] as a substantive or material law. And for the procedural law, the Court used the Indonesian Criminal Procedure Code (KUHAP).[39]

E. Special Panels for Serious Crimes in East Timor

On 15 September 1999, the U.N. Security Council passed Resolution 1264 (1999) to authorize a peace enforcement operation to restore order in East Timor. The Australian-led mission, known as International Forces in East Timor (INTERFET) entered into East Timor on 20 September 1999 and operated there until responsibility for its administration was transferred to the U.N. Transitional Administration in East Timor (UNTAET).[40] Further, dealing with the transfer of authority after the ballot in East Timor, the Security Council of the U.N. acting under Chapter VII of the U.N. Charter passed Resolution 1272 (1999) on 25 October 1999 to establish UNTAET.

A U.N.-administered court system was also established in East Timor by the UNTAET, which administered East Timor during the period beginning shortly after East Timorese voted for independence from Indonesia in August 1999 and ending when East Timor became independent on 20 May 2002.[41] As the transitional administrative authority, UNTAET had overall responsibility for the administration of East Timor empowered to exercise all legislative and executive authority, including the administration of justice in East Timor.[42] To assist the new state during its first two years of independence, the U.N. established a Mission of Support in East Timor (UNMISET).[43]

On 6 June 2000 UNTAET established the Special Panels for Serious Crimes (hereinafter: the Panels) and exercised the trial since January 2001.[44] The Panels are within the District Court in Dili with exclusive jurisdiction to deal with serious criminal offences. UNTAET had established the Panels with the expertise to exercise exclusive jurisdiction over serious criminal offences. The Panels are composed of one Timorese and two international judges. Similar Panels have also been established within the Court of Appeal in Dili to hear appeals from the Panels.[45] Concerning the judges and prosecutors were regulated that: “The Transitional Administrator shall appoint candidates to judicial or prosecutorial office, taking closely into consideration the recommendations of the Transitional Judicial Service Commission.”[46]

UNTAET also established two institutions, namely the Serious Crimes Unit (SCU) and the Legal Aid Service (LAS), to support the Panels performance. The SCU has mandated to conduct investigations and prepare indictments against those responsible for crimes against humanity and other serious crimes committed in East Timor. The mandate of SCU has ended in May 2005 and all investigations were concluded in November 20004, in accordance with the U.N. Security Council Resolutions 1543 (2004) and 1573 (2004). While the LAS is responsible for preparing lawyers to the accused.

Base on Regulation 2000/16, passed the same day as Regulation 2000/15, UNTAET established the serious Crimes Unit (“SCU”) as the part of East Timor’s general prosecution branch responsible for investigating the 1999 violence. The SCU consists of four teams, each staffed almost exclusively by international prosecutors, investigators, and case managers. It is operated and funded by the UN. While the LAS is responsible for preparing the lawyer to the accused.

Since the independence of East Timor on 20 May 2002 the SCU has functioned under the legal authority of the General Prosecutor of Timor Leste. The office of the General Prosecutor is divided into two sections: Ordinary Crimes and the SCU which is headed by the Deputy General Prosecutor for Serious Crimes who reports functionally to the General Prosecutor and is responsible for managing investigations and prosecutions of the SCU. At that moment, the SCU has staff and financed, mainly by the U.N. and the SCU is a mixed organization consisting the U.N. and the East Timorese elements. This is description of the SCU organization including staff, its number, and indictment as of April 2005:

“the SCU had 88 staff members comprising United Nations international civilian staff (such as international adviser to the General Prosecutor, prosecutors, United Nations Volunteers legal officers, one international investigator, logistics personnel, personal assistants, evidence custodians, witness management staff, IT staff, U.N. Police, forensic and crime scene staff and interpreters). A number of Timorese are also undergoing training with the SCU. As of April 2005, the SCU had one investigation team stationed in Dili. Since SCU commenced its work in 2000, 95 indictments have been filed with the Panels, indicting a total of 391 persons. Since some defendants facing multiple charges, the total number of defendants amounts to 440.[47]

The Panels consisted of national and international judges who were come from several countries:

“The first Special Panel heard its first case in January 2001. Each Panel consists of one East Timorese judge and two international judges. Neither of the two East Timorese judges, as with those in the ordinary court, had any judicial experience prior to their appointments. The international judges are on renewable contracts of six months. The judges have come forth such places as Italy, Burundi, Brazil, Cape Verde and Portugal.”[48]

The Panels have jurisdiction (ratione loci) throughout the entire territory of East Timor.[49] The Panels shall have exercised jurisdiction over the following serious criminal offences, such as, genocide, war crimes, crimes against humanity, sexual offences, murder and torture. [50] Concerning serious criminal offences, especially murder and sexual offences, the Panels have only jurisdiction over the crimes that occurred between 1 January 1999 and 2 October 1999.[51] But, the Panels shall have universal jurisdiction for genocide, war crimes, crimes against humanity, and torture.[52]

On 20 May 2005 the mandate of the Panels ended. By April 2005, the Panels had completed all 5 trials brought before them. The Panels have conducted a total of eight trials in 2005 and the last verdict was announced on 22 April 2005. During the period 2004-2005, the Panels have adjudicated cases involving 46 per cent of the total number of defendants indicted before them. A total of 84 defendants were convicted after trial, 24 pleaded guilty and four were acquitted. The cases of 13 defendants were dismissed by the Panels or withdrawn by the Prosecution. The Commission is informed that all outstanding warrant requests have been ruled upon, thus meeting the deadline of 20 May 2000. As of April 2005, out of 290 arrest warrant applications received from SCU, 285 arrest warrants had been granted and 5 denied. All warrant requests for all defendants in the Wiranto et. al. indictment were ruled upon and allowed.[53]

The highest sentences were those handed down by the Panels in the Los Palos case, in which three accused were sentenced to 33 years (later reduced to 25 years on the basis of a Presidential Pardon) and others were sentenced to about 23 years (Los Palos case); 20 years in the Armando dos Santos case; other sentences of imprisonment range from three to 20 years.[54]

In May 2005 with the end of UNMISET (United Nations Mission in Support of East Timor), the Serious Crimes Unit was closed. This effectively resulted in the active prosecution of serious crimes in Timor. However the legislative framework for the Special Panels regime largely remains in place. Neither UNTAET Regulation 2000/15 On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, nor the transitional provisions in the Timorese Constitution requiring the ongoing prosecution of serious crimes, has been repealed. (The most significant legislative change in this area since May 2005 has been the replacement of the Transitional Rules of Criminal Procedure with a new Criminal Procedure Code for East Timor (Decree Law Number 13 of 2005), as well as the creation of a –still yet to be passed – new Criminal Code).[55]

Relating to the Panels, on 18 February 2005, the U.N. Secretary General appointed a Commission of Experts. According to its terms of reference the Commission has mandated, among others, to review the judicial process of the work of the Panels and SCU in Dili (including Ad Hoc Human Rights Court in Indonesia); to assess the effective functioning of the two institutions, to identify obstacles and difficulties encountered of the two institutions.[56]

Concerning the type of crimes in UNTAET Regulation, there are many regulations derived from various international legal instruments, among others: genocide from the Genocide Conventions and the Rome Statute; crimes against humanity from the Rome Statute; and also war crimes from the Geneva Conventions and the Rome Statute.[57]

For applicable law, in exercising jurisdiction the Panels shall apply:  the law of East Timor as promulgated by Sections 2 and 3 of UNTAET; Regulation No. 1999/1 and any subsequent UNTAET regulations and directives; and where appropriate, applicable treaties and recognized principles and norms of international law, including the established principles of the international law of armed conflict.[58] The Panels shall also apply, as appropriate, the Indonesian Code of Criminal Law (KUHP) as applicable law, particularly, to murders and sexual offenses that occurred between 1 January 1999 and October 1999.[59] The Panels use transitional rules of criminal procedure as the rule of procedure which is regulated under UNTAET Regulation Number 2000/30.

The general principles of international criminal law are also applied to the crimes as regulated in UNTAET Regulation, such as, ne bis in idem, nullum crimen sine lege, individual criminal responsibility, irrelevance of official capacity, responsibility of commanders and other superiors.

Under Article 13.1. the Constitution of Timor Leste, the working language that used in the Panels are Tetum and Portugal. During the transition period, the working languages in the Panels are Tetum, English, Bahasa Indonesia, Portuguese.[60] Courts shall provide translation and interpretation services in every case where a party to the proceedings, or a judge, or a witness, or expert witness does not sufficiently speak or understand the language spoken in that court.[61]

F. Comparative Analysis

The Ad Hoc Human Rights Court in Indonesia and the Special Panels for Serious Crimes in East Timor were the first experience of international community to address human rights violations. The Ad Hoc Human Rights Court was the first national court which was used the term of “human rights court”, while the Panels were the first hybrid tribunal (combination between national and international elements).

Basically, Ad Hoc Human Rights Court and the Panels were established based on the willingness to address gross violations of human rights that occurred in East Timor. The main objective of these institutions was to seek accountability for such violations.

Establishment of the Ad Hoc Human Rights Court in Indonesia was encouraged by international pressure rather than willingness of the government of Indonesia itself.  It was established to fulfill mandatory obligation under the U.N. Security Council Resolution. Based on the political consideration, the main objective for establishing the Court was to show the state commitment in order to avoid international sanction. Involvement of Indonesia’s state agents in violation of human rights in East Timor had caused responsibility for the government of Indonesia.

While, establishment of the Special Panels for Serious Crimes was sponsored by the U.N. to response gross violations of human rights in East Timor. It acted as international organization under the U.N. Charter through the Security Council as one of its primary organ. The Security Council exercised its capacity to maintain peace and security as regulated in Chapter VII of the U.N. Charter.

The Ad Hoc Human Rights Court was established based on the Indonesia national law, mainly Act Number 26 of 2000 on Human Rights Courts. The government of Indonesia also passed some regulations concerning of the Court, such as, act, presidential decree, and government regulations. The U.N. Security Council Resolution was legal basis of the Special Panels for Serious Crimes. Then, the UNTAET as administrative of judicial institution, which was established under the Security Council Resolution, issued regulations which used as the legal instrument of the Panels.

Although the human rights court is part of the national judicial institution, but it mechanism should be parallel with international law or international standards.  This situation also depends on the political will of the concerned state. The court will be an independent and credible institution when it is supported by the state. Indonesia has ratified some of international legal instruments, e.g. ICCPR, ICESCR, Conventions Against Torture, and Geneva Conventions). By ratifying these instruments Indonesia has legal obligation to protect and ensure human rights. The executive, legislative, and judicative elements must implement this obligation. Violation of the rights enumerated in the treaty has legal consequence. Human rights violations must be address through national judicial process as accountability of the state.

Concerning regulations that had been applied by the Court, there were some weaknesses. For example, in Act Number 26 of 2000 and Indonesian Code of Criminal Law there is no regulation/article concerning the war crimes. So that, relating to the war crimes cases in East Timor could not be brought before the Court. But, in the UNTAET Regulation, as applicable law for the Panels, war crimes are regulated yet. This regulation is derived from the Geneva Conventions of 1949 and the Rome Statute of 1998. It is also including crimes against humanity.

According to Act Number 26 of 2000, the meaning of crimes against humanity is “an action conducted as a part of an attack that is widespread or systematic which is known that the attack is directly against civilian…”.[62] The phrase “directly attack” is not found in the definition of crimes against humanity in the Rome Statute 1998. The Statute uses the phrase “directed against”. The phrase “directly against” (“ditujukan secara langsung”) fundamentally different from “directed against” (“dutujukan terhadap”). The word “directly” can imply that only the direct perpetrators can be indicted with this provision. In this case, the government has intentionally “twisted” the original text of crimes against humanity definition as regulated in the Rome Statute.

The phrase “directly attack” has proven to make the judges difficult to proof the crimes committed by the TNI and Police personnel. Because, such crime must be committed “directly” which means must be done by a positive action (commission delict). While, the personnel of the TNI were indicted because they have not done properly to prevent the crimes (omission delict). The word “directly” can imply that only the direct perpetrators can be indicted with this provision. It has then influenced the judgments that all of the personnel of the TNI have been acquitted by the Supreme Court. Only one person was sentenced (10 years imprisonment for crimes against humanity). This was Eurico Gutteres, ex deputy commander of the Pro Integration forces (PPI) and commander of the Aitarak militia group in Liquisa.

Compared with the Panels, a total of 84 defendants were convicted after trial, 24 pleaded guilty and four were acquitted. The cases of 13 defendants were dismissed by the Panels or withdrawn by the Prosecution.[63]

Act Number 26 of 2000 also regulates command responsibility that derived from the Rome Statute. But the substance is fundamentally changed as follows: “A military commander or person acting as military commander shall be held responsible for any criminal action…and so on.”[64] The phrase “shall be held” should be written “shall be criminally responsible” as regulated in Article 28 (a) of the Rome Statute of 1998.

Relating to the command responsibility, again, the phrase “shall be responsible” was intentionally designed in order to avoid the accused, who were members of the TNI, from criminal sanction. Through it phrase, appears interpretation that sanction concerning command responsibility to military personnel is not automatically applicable and it can be administration sanction (such as, not to be promoted in higher rank or occupation) not merely criminal sanction.

The lack of regulations on war crimes, in Act Number 26 of 2000 and in the Indonesian Criminal Code of Criminal Law, meant that the Court could not apply the international norms relating to war crimes which are regulated in the Geneva Conventions of 1949. As a note, Indonesia has ratified this convention in 1958, but until now Indonesia has not taken legislative measures to create any regulation concerning war crimes. Although, jurisdiction over war crimes is provided for in UNTAET Regulation, no charges of war crimes were brought before the SPSC.

The Panels had been used international law as applicable law. The regulations were derived from international legal instruments, such as Genocide Convention, Geneva Conventions, Rome Statute. But, for practical needs, the Panels also adopted Indonesian law to the extent that it was not in conflict with internationally recognized human rights standards, did not conflict with mandate of UNTAET, and did not conflict with Regulation 1999/1 or any subsequent regulation or directive. Compared with the Ad Hoc Human Rights Court, standard of regulation which was applied by the Panels were met with international law. There were not distortions in the provisions formulation which was promulgated as applicable law.

The Ad Hoc Human Rights Court has only jurisdiction (ratione materiae) to genocide and crimes against humanity. War crimes are not under the jurisdiction of the Court, although these crimes had been occurred in East Timor. It is impossible to bring the war crimes case before the Court. Moreover, the jurisdiction (ratione loci) of the Court was limited into three areas (districs), i.e., Liquica, Dili, and Suai, and the period was also restricted in April and September 1999. The jurisdiction of the Court was too narrow, because according to the KPP HAM report, human rights violations had been occurred in six districts (of 13 districts). This limitation had an impact on the limited amount of cases that can be uncovered, including the perpetrators.

According to UNTAET Regulations, the Panels have jurisdiction (ratione materiae and ratione temporis) wider than the Ad Hoc Human Rights Court in Indonesia, i.e., genocide, war crimes, crimes against Humanity, murder, sexual offences, and torture committed in the period between 1 January 1999 and 25 October 1999. The Court have jurisdiction (ratione loci) throughout the entire territory of East Timor. In addition, the Panels also shall have exercised universal jurisdiction to genocide, war crimes, crimes against humanity and torture.

Human resources is another factor that causing the failure of the Court to be credible institution. The lack of experience and knowledge of the prosecutors in human rights cases, also make the judges cannot find valuable evidence during the trial. Those factors then have a consequence to the judgments. That because of poor quality of the evidence, judges had to make their judgments based on the very limited evidence. The Court tried all of 18 defendants step by step and divided them into 12 cases. The trials of these cases were committed in two steps.

First step was to hear cases (March to August 2002). And, the second step was to hear nine cases (September 2002 to February 2003). From 18 defendants only one who found guilty on sentenced to 10 years imprisonment under the verdict of the Supreme Court on 13 March 2006 and the others were acquitted. Besides, all of the judgments did not consider the rights of victims.[65] Although there has been Government Regulation (Peraturan Pemerintah)[66] to regulate the rights of victims, such as, to get compensation, restitution or rehabilitation, but the victims could not attain their rights at all. Those rights are not part of any the court judgments. It is also indicated that the Court has failed to be a tool of justice for the victims and stand up the interest of the victims.

The recruitment of the candidates for the Ad Hoc Human Rights Court, consisting of career and non-career judges, has been conducted in a non-transparent manner, since there was no room provided for public participation. In general, the professional judges have not sufficient experiences in dealing with human rights related issues.

Concerning the performance of the judges, in the course of a mission to Indonesia in July 2002, the Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, reported that:

“a number of judges had indicated that they had received very little training on international standards and international practice relevant for prosecution of serious crimes such as crimes against humanity and genocide (see E/CN.4/2003/65/Add.2).[67]  A United Nations Trials Observer at the Ad Hoc noted that the career judges were not relieved from their docket of cases to focus on human rights trials, resulting in lack of preparation time. The expertise of the judges also varied.”[68]

In the Panels, there had been involvement of international judges who were appointed by the UNTAET. They consisted of the experienced and professional judges who were familiar with human rights cases. Although they were not provided with sufficient staff, and facilities, but they had succeed to exercise their functions.

Concerning to legal instrument, there are some weakness, for example, from the fact that the Court stills using the KUHP as legal bases for material law and also the use of KUHAP as its procedural law. As we know, basically, those laws are enacted to solve “ordinary crimes” and not for crimes as “extraordinary crimes” that have different characteristic. Those instruments are not properly for gross violations of human rights, because the instruments were derived and designed not for “extraordinary crimes”. For example, concerning the use of evidence, under Article 184 to 190 of the KUHAP regulates that the evidence that can be used in court are (1) testimony; (2) expert statement; (3) official letter and/or document; (4) hard evidence; (5) defendant’s statement. Those are inadequate to be applied in gross human rights violations cases. By depending only on the said evidence(s) it is difficult for the prosecutor to proof the element of the crimes. Concerning to this case, international trial has been used evidences which were not regulated in KUHAP, such as recording, e.g. cassette, film, video, interview of witness.

Compared with the Panels, Section 34 provides for the relevant rules of evidence. According to section 34.1, “[t]he Court may admit and consider any evidence that it deems is relevant and has probative value with regard to issues in dispute.” This reflects the flexible, discretionary approach to evidence that characterises civil law proceedings as well as, increasingly, international criminal proceedings.

Concerning the whole judicial processes exercised by the Ad Hoc Human Rights Court in Indonesia, the U.N. Commission of Experts gave recommendations the following: reform of the judicial process and re-trial the persons indicted; prosecute  high-level suspects at large in Indonesia. If these recommendations were ignored, the Commission also recommended that: establishing an international criminal tribunal for Timor-Leste; utilizing the International Criminal Court; exercising universal jurisdiction.[69]

The SCU was able to issue indictments in respect of 572 of the approximately 1400 murders committed in 1999.58 Additionally, although many investigations never led to indictments, they ensured nonetheless that important evidence that might otherwise have been lost or destroyed was collected, analysed, and stored away. Furthermore, in the case of the many indictees who have to date evaded trial, the case files that formed the basis of their indictments are ready for use in future prosecutions. Provided that these case files are kept secure and protected, it remains possible that untried indictees will be brought to justice.

Indonesia’s failure to assist the SCU in its investigations had significant implications for the quality and number of indictments that the SCU was able to issue. As a result, the SPSC was able to convict only low-level Timorese offenders, and was never able to try the senior military officers alleged to bear command responsibility. At the closure of the SCU in May 2005, 339 of the 440 persons indicted by the SCU remained beyond Timorese jurisdiction. As a result, the SPSC was able to convict only low-level Timorese offenders, and was never able to try the senior military officers alleged to bear command responsibility. At the closure of the SCU in May 2005, 339 of the 440 persons indicted by the SCU remained beyond Timorese jurisdiction.

One of the stated aims of the serious crimes process was to contribute to the development of local judicial and legal capacity. In this regard the process fell short of expectations. The SCU embarked on a training program for Timorese prosecutors in 2002. However, although this was a positive step, it provided only brief training to only a small number of persons and did not include vital in-court advocacy experience. There were also a number of Timorese judges who participated in the SPSC and gained valuable experience through their court work as well as the receipt of mentoring from international judges. However this program was largely unstructured and the judges appear to have received very little formal training. The most significant failure in the area of capacity building was, unsurprisingly, in relation to defence lawyers. Overall it is clear that while some small steps were taken to develop local capacity, none were sustained or comprehensive. This is particularly evident given that since the completion of the serious crimes process all local court actors (other than those working in the court of appeal) have been required to undergo a new training program before being permitted to undertake work on a probationary basis. It must be stressed that the principal cause of its failures was the inadequacy of funding.

A significant problem throughout the life of the Panels was a severe shortage of resources. This meant that judges were not provided with administrative support staff and had to do their own research, drafting, editing and administration.[70] The Panels have also problem in translation facilities, competence of the defense, the lack of a functioning court administration.[71] The lack of resources faced by the Panels in the early days of their establishment was particularly acute, including the lack of judges, support staff, computers and legal resources.[72] In September 2004 the Panels hired its first experienced international law clerk.

The Court of Appeal also suffers from similar resources deficiencies such as the lack of translators, research assistants and stenographers. The backlog of cases on appeal has resulted in delays in rendering decisions.[73] It did not also operate at all for a significant period of its existence because of difficulties in the appointment of international judges. This prevented the Court from sitting more than a year and a half in 2001-2003. Precisely who was responsible for the delays in judicial recruitment is a matter of disagreement. U.N. official accuse the Timorese government of obstruction at various points in the processes, including the imposition of language requirements that did not seem strictly necessary. Government sources attribute delays to unwieldy and slow U.N. processes.[74]

The most fundamental obstacle to the effective functioning of the serious crimes regime was Indonesia’s failure to cooperate in the process. Despite the conclusion of the MOU between Indonesia and UNTAET, and even despite assistance rendered by UNTAET to the Indonesia ad hoc trials, Indonesia consistently failed to cooperate in the prosecution of serious crimes. The state’s position has been that agreement is not binding until ratified by the parliament, which did not occur. Indonesian authorities also claim that the MOU applied only to the period of the transitional administration of UNTAET and that it therefore ceased to have any effect as of 20 May 2002. As a result of the government’s refusal to cooperate, the SCU had to carry out investigations without assistance from Indonesian authorities.[75] Inevitably, the failure of Indonesia to cooperate with the special crimes process had a significant effect on what types of suspects were tried before the Panels. High-level perpetrators from the Indonesian military and government have been shielded by the Indonesian authorities and remained outside the reach of the serious crimes process.[76]

In exercised its tasks, the SCU continues to be hampered by lack of funding, inexperienced personnel, and vacancies in key position. For example, the appellate panel currently cannot function because too few judges have been hired, and trial courts have been forced to suspend proceedings periodically because of lack of personnel. Nevertheless, despite these problems, trials are proceeding, and it appears that the hybrid court will continue to play a significant role in the process of accountability for human rights abuses.[77]

The overall effectiveness of the United Nations Mission on East Timor (UNMISET) Defense Lawyer Unit (DLU) has been hampered by a pressing lack of resource in three key areas: investigative capacity, legal research tools and expert consultants. As of April 2004, DLU had two UNV investigators on staff, supporting eleven lawyers. the DLU has at time been required to function without adequate investigative assistance.[78]

Formally, there has been accountability from Indonesia through Ad Hoc Human Rights Court concerning gross violations of human rights in East Timor. But, substantially, the accountability has shown many weaknesses that reflected, particularly, from the lack political will of the government, weak or mistake of legal instrument, and inadequate human resources. The lack of political will in high governmental level tend not to support the Court has been main source of all the problems. It was, among others, reflected from the reluctant of the government of Indonesia to implement the memorandum of understanding with UNTAET to cooperate in the prosecution of serious crimes process. Similar opinion stated also by the U.N. Commission of Expert that:[79]

“The judicial process before the Ad Hoc Court was not effective in delivering justice for the victims of serious violations of human rights and the people of Timor Leste. The failure to investigate and prosecute the defendants in a credible manner has not achieved accountability of those who bear the greatest responsibility for serious violations. Many aspects of the ad hoc judicial process reveal scant respect for conformity to relevant int’l standards.”

Different from the Ad Hoc Human Rights Court, the Panels had contributed in ensuring accountability for human rights violations in East Timor. It was concluded by The U.N. Commission of Experts that:[80]

“The Panels have provided an effective forum for victims and witnesses to relate their experiences and provide evidence in ensuring accountability for those responsible for the crimes committed in 1999. The number and quality of some of the judgments rendered is also testimony of the ability of the Panels to establish an accurate historical record of the facts and events of 1999 during the short duration of its work.  The serious crimes process, including the work of the Panels, has also significantly contributed to strengthening respect for the rule of law in Timor-Leste and has encouraged the community to participate in the process of reconciliation and justice. The existence of an effective and credible judicial process such as the Panels has also discouraged private retributive and vengeful attacks.[81]

G. Conclusion and Recommendation

The Ad Hoc Human Rights Court in Indonesia did not perform as a substantial settlement and a credible institution for gross human rights abuses in East Timor. It had failed to achieve its objective, i.e., to address gross violations of human rights.[82] It had reflected from the whole aspects, such as, the organization, system, regulation, personnel or judgment of the Court. The facts that all of the Court judgments did not consider the interest of the victims were reflected that it had failed to render justice to all of the victims. No political will from the government also makes the Court powerless. In contrast to the Panels, although in exercising its tasks had faced many problems, especially failed to try the high-level perpetrators, but the Panels had succeed to lay down basic principles to establish credible judicial institution, fair trail, and valuable facts.

I will also give my recommendation concerning the topic, as follows: for the most responsible persons who still free from punishment, it necessarily remains to bring them to justice. It is uneasy to be done, because the government of Indonesia and the government of Timor Leste have established the Commission of Truth and Friendship based on bilateral agreement to address the past human rights abuses in East Timor politically. And, to develop the hybrid tribunal as an alternative judicial institution to address gross violations of human rights cases. By involving international community and local elements it is hoping that the judicial institution that established has strong foundation and more easily to implement its objectives and to be a credible institution in the eyes of national and international community.

***

Annex: Table of comparison between Ad hoc court and the Panels

Subject

Ad hoc court

The panels

Legal Basis

Indonesia Act No. 26 of 2000SC ResolutionStructure organizationPanel of 3 Judges; Prosecutor: Attorney General 3. Investigator: KPP HAM.1. Panel of 3 judges; 2. SCU: as prosecutor & investigator.Jurisdiction (ratio materiae)

  • Genocide
  • Cimes against Humanity.
  • Serious criminal offences: genocide, war crimes, crimes against humanity, sexual offences, murder and torture.

Jurisdiction (ratio loci/ temporis)

  • Liquica, Dili and Suai and only for crimes committed in April and September 1999.
  • All over territory of East Timor  committed in the period between 1 January 1999 and 25 October 1999.

Composition:

1. Panel of 5 Judges: 3 career  judges, 2 non-career judges. Total: 12 persons judges

2. Prosecutor: career prosecutor and ad hoc.1. Panels of 3 Judge: 2 persons int’l judges (UN employed), 1 local judge. Total:

2. SCU:Available resourcesJudge and prosecutor are poor experience at human rights cases and lack of training on international criminal law.Professional judge and prosecutor (mostly international professional hired by the U.N.).Fair trial standardsNo victims witness has testified against the accused, lack of protection to the witness, intimidation to the judge, unavailability of translator for witness which is used Tetum language.No professional defense lawyer for the accused; lack of professional translators;VerdictsA total 18 defendants were convicted: 6 pleaded guilty and 12 were acquitted. But 17 defendants were released by the Supreme Court, one persons pleaded guilty.A total of 84 defendants were convicted: 24 pleaded guilty and four were acquitted. The cases of 13 defendants were dismissed by the Panels or withdrawn by the Prosecution.Law of ProcedureKUHAPTransitional Rules of Criminal Procedure under UNTAET Regulation.


[1] This paper is output of research of the author as a guest researcher that sponsored by Norwegian Centre for Human Rights (NCHR), University of Oslo, Norway. The research is conducted in Oslo, 2007.

[2] Lecturer at the Faculty of Law, University of Trisakti, Jakarta and Secretary of the Centre for Study on Humanitarian Law and Human Rights (terAs), Faculty of Law, University of Trisakti, Jakarta.

[3]http://geography.about.com/gi/dynamic/offsite.htm?site=http://www.infoplease.com/ipa/A0902237.html

[4] General Assembly Resolution 1542 (XV), Dec. 15, 1960, para. 1(i).

[5] http://www.elsham.or.id/publikasi/padhoc/Prog-Report%2010.pdf

[6] David Cohen, Intended to Fail the Trials Before the Ad Hoc Human Rights Court in Jakarta, Occasional Paper, Berkeley: International Center for Transitional Justice, August 2003, p. 11.

[7] Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor (http://www.unhchr.ch/Hurocda/Hur…/aa9030e28c1e7148802567f50042b79e?Opendocument).

[8] The ICIET was established pursuant to the resolution adopted by the U.N. Commission on Human Rights on 15 October 1999.

[9] Report of the International Commission of Inquiry on East Timor to the Secretary-General, January 2000. U.N. Doc. A/54/726 and S/2000/59, 31 January 2000.

[10] Report on the joint mission to the East Timor undertaken by the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the question of torture and the Special Rapporteur on violence against women, its causes and consequences. Situation of human rights in East Timor. U.N. Doc. A/54/660, 10 December 1999, par. 71.

[11] Executive Summary of Human Rights Violations Investigation Report in East Timor arranged by the Commission for Investigation of Human Rights Violations in East Timor (the KPPHAM) on 31 January 2000. (http://www.komnasham.or.id/kegiatan%20khusus/KPP_HAM_timtim.htm).

[12] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), p. 40, U.N. Doc. S/2005/458 (2005).

[13] Vide, H. Victor Condé, A Handbook of International Human Rights Terminology, Lincoln: University of Nebraska, 1999, p. 27. According to him, the term of crimes against humanity is “a term describing a group of international crimes. The international community has criminalized acts, such as, murder, extermination, genocide, enslavement, deportation, and other serious inhumane acts against civilians or the civilian population before and during armed conflict…”.

[14] Under Article 4 para. (2) International Covenant on Civil and Political Rights, the non-derogable rights are, right to life, right not to be tortured, right not to be slavery and servitude, right not to be imprisonment merely as a matter of inability to fulfill contractual obligation, right not to be treated by non-retroactive law, right to equality before the law, right to freedom of thought, conscience and religion.

[15] M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd Revised Edition, The Hague: Kluwer International, 1999, p. 210. According to him the crimes against humanity is categorized as a crime that violates a jus cogens norms. He, then, defines jus cogens as: “the compelling law, and as such the hierarchical position of such a rule is presumably above all other principles, norms and rules of both international law and national law.”

[16] Rudi M. Rizki, The Act on Human Rights and Human Rights Court, Paper presented at Human Rights Law Training for the Lecturer of Law and Human Rights at Public and Private Faculty of aw in Indonesia, Hosted by the Centre Study for Human Rights of the Islamic University of Indonesia (PUSHAM-UII) in cooperation with the Norwegian Centre for Human Rights (NCHR) University of Oslo, Norway, Yogyakarta, 22 September 2005.

[17] Muladi, Domestic Mechanism to Try Gross Human Rights Violations through the Court System under  Act Number 26 of 2000, Paper  presented at Panel Discussion on Four Months of Human Rights Court for Tanjung Priok Case and Conclusive Report Trial Monitoring. Hosted by the Institute for Policy Research   and Advocacy (ELSAM), Jakarta, 2004.

[18] Indonesia has ratified the Geneva Conventions 1949 by Act Number 59 of 1958.

[19] In the Geneva Conventions 1949, grave breaches are regulated in Article 50 Geneva Convention I; Article 51 Geneva Convention II; Article 30 Geneva Convention III; Article 147 Geneva Convention IV. It also regulated in Article 85 Protocol Additional I 1977.

[20] This principle was initially came form Nuremberg Principle in 1945 which saying that to the perpetrator of crimes under international law, such as, crimes against peace, war crimes and crimes against humanity, would be applied individual responsibility, vide, Victor Condé, op. cit., p. 67. In Rome Statute those crimes are regulated in Article 25.

[21] In Rome Statute this principle is regulated in Article 27, that: “…In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute…”.

[22] According to H. Victor Condé, universal jurisdiction is “a term describing the domestic (national) legal power (competence) of courts in every state in the world to exercise jurisdiction to prosecute an alleged perpetrator of certain international crimes…” Id., p. 155.

[23] Concerning to war crimes, in Article 49 of the Geneva Convention I 1949 it is regulated that the states parties have obligations to enforce penal sanction effectively to persons who commit or order to commit grave breaches; arrest, try and punish, or extradite persons who allegedly to commit or order to commit grave breaches.

[24] Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law, Beyond the Nuremberg Legacy, Second Edition, New York: Oxford University Press, 2001, p. 151.

[25] Id., p.160.

[26] Laura A. Dickinson, The Promise of Hybrid Court, The American Journal of International Law, Vol. 97, No. 2 (Apr., 2003), p. 295

[27] Article 4 Act Number 26 of 2000 on Human Rights Court.

[28] Article 43 para. (1) and (2) Act Number 26 of 2000. This Act entered into force on 23 November 2000.

[29] Article 5 Act Number 26 of 2000.

[30] Article 1 (2) Act Number 26 of 2000.

[31] Article 11 and 12 Act Number 26 of 2000.

[32] Article 23 para. (2) Act Number 26 of 2000.

[33] Article 18 Act Number 26 of 2000.

[34] Article 25 Act Number 26 of 2000.

[35] Article 27 para. (1) and (2) Act Number 26 of 2000.

[36] Article 28 Act Number 26 of 2000.

[37] Article 7 Act Number 26 of 2000.

[38] The KUHP was enacted by Act Number 73 of 1958 on Enforcement of the KUHP all over Indonesia.

[39] The KUHAP was enacted by Act Number 8 of 1981 on Criminal Procedure Law.

[40] Diane F. Orentlicher, Striking a Balance: Mixed Law Tribunal and Conflicts of Jurisdiction, in Mark Lattimer and Philippe Sands Q.C., (edit), Justice for Crimes Against Humanity, Oxford: Hart Publishing, 2003, p. 221.

[41] Id., p. 222.

[42] Section 1.1. UNTAET Regulation Number 1999/1 on the Authority of UNTAET.

[43] Id., Security Council Resolution 1410, U.N. Doc. S/RES/1410 (2002). This resolution establishes UNMISET for an initial period of 12 months, but contemplates a two-year period of devolution of responsibility from UNMISET to East Timorese authorities.

[44] UNTAET Regulation Number 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses.

[45] Section 1.1. and 1.2. UNTAET Regulation Number 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses.

[46] Vide Article 10.3. and 11 UNTAET Regulation Number 1999/3 on the Establishment of a Transitional Judicial Service Commission.

[47] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), p. 19, U.N. Doc. S/2005/458 (2005).

[48] Caitlin Reiger, The East Timor Experiment with International Justice. Paper presented at the conference Justice in the Balance-Military Commissions and International Tribunals in a Violent Age, hosted by the Berkeley War Crimes Study Center, Human Rights Center and Department of Rhetoric at the University of California at Berkeley, 16 March 2002. (www.hrcberkeley.org/download/justice_east_timor.pdf)

[49] Section 2.5. UNTAET Regulation Number 1999/1.

[50] Section 10 UNTAET Regulation Number 2000/11 on Organization of the Court and UNTAET Regulation Number 2000/15.

[51] Section 2.3. UNTAET Regulation Number 2000/15.

[52] Section 2.1. and 2.2. UNTAET Regulation Number 2000/15.

[53] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), p. 32, U.N. Doc. S/2005/458 (2005).

[54] Id.

[55] JSMP Report,  Digest of the Jurisprudence of the Special Panels for Serious Crimes, April 2007.

[56] Id., p. 3.

[57] Vide Section 4, 5,and 6.1. UNTAET Regulation Number 2000/15.

[58] Section 3.1. UNTAET Regulation Number 2000/15.

[59] Section 8 and 9 UNTAET Regulation Number 2000/15. Since East Timor’s independence on 20 May 2002 the hierarchy of applicable laws is established by a combination of UNTAET Regulation 1999/1, Section 1 Democratic Republic of East Timor Law Number 2 of 2002 and section 165 East Timor’s Constitution.

[60] Section 36 UNTAET Regulation Number 2000/11.

[61] Section 23 UNTAET Regulation Number 2000/11.

[62] Article 9 Act Number 26 of 2000 regulates as follows: “Kejahatan terhadap kemanusiaan sebagaimana dimaksud dalam Pasal 7 huruf b adalah salah satu dari serangan yang meluas atau sistematik yang diketahuinya bahwa serangan tersebut ditujukan secara langsung terhadap penduduk sipil,..”

[63] Infra, see note number 58.

[64] Article 42 (1) Act Number 26 of 2000 regulates that: “…komandan militer atau seseorang yang secara efektif bertindak sebagai komandan militer dapat dipertanggungjawabkan terhadap tindak pidana…dst”. Similar formulation also found  for police and civilian leaders responsibility (Article 42 (2)).

[65] It was because none of the prosecutor has submitted compensation, restitution or rehabilitation claim to the court.

[66] Government Regulation Number 3 of 2002 on Compensation, Restitution, and Rehabilitation for Gross Human Rights Violations Victims.

[67] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), p. 56, U.N. Doc. S/2005/458 (2005).

[68] Id.

[69] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), pp. 118-120, U.N. Doc. S/2005/458 (2005).

[70] U.N. OHCHR, Comprehensive Report on the Progress Made to Date of Prosecution Before the Ad Hoc Human Rights Court in Indonesia and the Serious Crimes Process in Timor Leste in Respect to Crimes Committed in the East Timor in 1999, October 2004, pp. 46-47.

[71] Caitlin Reiger, op. cit., (http://ww.hrcberkeley.org/download/justice_east_timor.pdf).

[72] JSMP Report, Justice for Timor Leste: the Way Forward. (http://ww.jsmp.minihub.org).

[73] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), p. 34, U.N. Doc. S/2005/458 (2005).

[74] Megan Hirst and Howard Varney, Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor, Occasional Paper Series, Berkeley: International Center for Transitional Justice, June 2005, p. 21.

[75] Megan Hirst and Howard Varney, op. cit., p. 16. See also, Report of the Secretary-General on the United Nations Transitional Authority in East Timor (for the period 27 July 2000 to 16 January 2001), S/2001/42, 16 Januay 2001, para. 25.

[76] Id.

[77] Dickinson, op.cit., p. 299.

[78] Summary of the report to the Secretary-General of the Commission Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (15 July 2005), p. 36, U.N. Doc. S/2005/458 (2005).

[79]

[80]

[81] Id., p. 33.

[82] It was stated in the preamble of Act Number 26 of 2000 as follows: “Considering: whereas establishment by the government of a Human Rights Court to address gross violations of human rights…”.