Speaking notes for the seminar at the University of Adelaide (East Timor: Justice, Healing and Development) 15th November 2008 Clinton Fernandes, UNSW@ADFA
In January 1984, the Reverend Jesse Jackson exhorted his audience in Philadelphia, "Don't cry about what you don't have, use what you got!" Referring to the parable of David and Goliath, he said that "little David took off his unnecessary garments... Didn't want to get weighted down with a lot of foolishness... Took what God gave him, a sling shot and a God-biscuit, a rock."
We can achieve justice for East Timor if we learn from this sentiment, identify the rocks lying around, pick them up and use them to good effect.
The principal obstacle to justice for East Timor isn't legal but political. The law is on the side of justice. The East Timorese government has the right to call for justice. But it lacks adequate international support, and so it has to be realistic. It can't afford to antagonise the Indonesian government by carrying such a heavy diplomatic burden on its own.
The main task for people who support justice is therefore to create the conditions in which calls for justice by a future East Timorese government can be realistic.
Since there is no statute of limitations on crimes as serious as those perpetrated against the East Timorese, we have the time to do this correctly - to get it right.
One rock that's lying around waiting to be used is the law. We need to take paper victories and turn them into real weapons and real victories. Paper victories mean a lot if you do something with them.
God helps those who help themselves, as the saying goes. Use that victory and turn it into a political force.
That's what successful campaigns do. Need to exploit these victories.
As one scholar has pointed out, about ninety years ago, a group of campaigners took eighty words written by an obscure foreign minister and turned them into a political force (the Balfour declaration ). Then they took what would have otherwise been just another UN General Assembly resolution (the Partition Resolution of 1947) and said No it's not just another General Assembly resolution - it's our birth certificate. And they ran with it.
In the case of justice for East Timor, we have to learn the legal rocks that're lying around and then make sure that everyone else knows them too.
A rock: Indonesia's own National Commission on Human Rights conducted a detailed investigation. It concluded that key members of the Indonesian military must face justice. We need to know about this investigation and its recommendations, and use it effectively by making sure that everyone else knows it too.
A rock: the UN's International Commission of Inquiry also conducted an investigation. It reported that its members 'were confronted with testimonies surpassing their imagination' . It too called for an international tribunal. As before, we need to know this, and then make sure everyone else knows it too.
A rock: the UN's Special Rapporteurs called for criminal prosecutions of Indonesian officers responsible, 'both directly and by virtue of command responsibility, however high the level of responsibility' .
A rock: The Commission for Reception, Truth and Reconciliation in East Timor. The Commission, known by its Portuguese initials, CAVR (A Comissão de Acolhimento, Verdade e Reconciliação) was established as an independent statutory authority in July 2001. Its official report was called Chega! (Portuguese for 'enough').
Here's how we know what the death toll was:
Chega benefited from input by Benetech, a California-based nonprofit organization devoted to using technology in the service of humanity. Its Human Rights Data Analysis Group (HRDAG) built on a database of three independent sources: narrative statements, a retrospective mortality survey, and a census of public graveyards.
The first source was approximately 8,000 narrative testimonies.
The second source was a random survey of East Timorese households.
The third source was the graveyard census database, developed by visiting all public cemeteries in East Timor and recording the name, date of birth and date of death for every grave for which the information was available. The researchers established that there were approximately 319,000 graves in the sample, of which about half had complete name and date information.
This is standard procedure in the field of historical demography, but no truth commission had previously conducted one.
Another rock: Recommendation 7.2 of Chega! called for 'an International Tribunal pursuant to Chapter VII of the UN Charter.'
Chega's recommendation 7.2 is a rock that's lying around.
Remember: When opponents of justice say that the East Timorese government doesn't argue for justice, justice campaigners can accurately point out that a neutral, independent East Timorese commission that relied on 8,000 narrative testimonies, a survey of East Timorese households, and a database of 319,000 graves is more reflective of what the East Timorese people really want than a diplomatically vulnerable East Timorese government, which cannot bear the burden of insisting on the implementation of this recommendation.
We need to point out an obvious analogy: in a schoolyard, a bullied child with no other supporters can't be expected to confront its tormentor directly.
The fifth rock: The UN Commission of Experts (26 May 2005) concluded that there must be an international tribunal.
As I said, we have to take the legal rocks that're lying around and then make sure that everyone else knows them too. Paper victories mean a lot if you do something with them.
But there's another rock that's lying around: The UN Commission of Experts (26 May 2005) recommended the exercise of universal jurisdiction.
Let me explain briefly what this means: Universal jurisdiction is the power of a national court to try genocide, war crimes and torture regardless of which nationality the suspect is, regardless of which nationality the victim is, and regardless of where the crime took place. You have to have the suspect on your territory in order to exercise universal jurisdiction, of course.
Universal jurisdiction was famously used in the 1998 arrest of former Chilean dictator Augusto Pinochet on torture charges in London at the request of a Spanish court.
In April 2004, a Congolese torturer was convicted in the Netherlands under universal jurisdiction (the Netherlands' 1988 Implementation Act to the United Nations Convention against Torture).
There have been two Afghan military officers convicted in the Netherlands for war crimes they'd committed in Afghanistan.
A Spanish court convicted an Argentine officer of crimes against humanity committed in Argentina.
A court in Brussels convicted a Rwandan businessmen of participating in the Rwandan genocide.
What about Australian jurisdiction to prosecute torture?
Breaches of the 1984 UN Convention Against Torture are crimes under federal law over which Australian courts have jurisdiction.
Thus there are two material elements and two mental elements.
The material elements are that severe pain or suffering, mental or physical, must be inflicted on a person, and that it must be done by a public official or a person acting in an official capacity.
The mental elements are that the pain or suffering must be intentionally inflicted, and for such purposes as obtaining information or a confession, or punishing or intimidating the victim or a third person, or for another reason based on discrimination.
What about Australian jurisdiction to prosecute war crimes?
Grave breaches of the 1949 Geneva Conventions are crimes under federal law over which Australian courts have jurisdiction.
The following are "grave breaches":
- wilful killing, torture or inhuman treatment, including biological experiments;
- wilfully causing great suffering or serious injury to body or health;
- unlawful deportation or transfer or unlawful confinement of a protected person;
- compelling a protected person to serve in the forces of a hostile Power;
- wilfully depriving a protected person of the rights of fair and regular trial;
- taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
There is no requirement that the alleged perpetrator be an Australian citizen. Nor is there any requirement that Australia be a Party to the international armed conflict in question, or that Australian citizens be victims of the war crime.
In the case of East Timor, we must be on the look-out for objections that will be advanced by the Department of Foreign Affairs and Trade that Australia's de jure recognition of Indonesian sovereignty may prevent war crimes from being tried in Australia under the Geneva Conventions Act 1957.
This is because on 15 December 1978, Australian foreign minister Andrew Peacock announced that Australia would give de jure recognition to the Indonesian takeover of East Timor with effect from the date that negotiations on the seabed boundary began. These negotiations began on 14th February 1979.
It may be argued by DFAT that Australian government recognition of Indonesian title to territory transformed the situation from an international conflict to a domestic Indonesian crime.
This argument can be resisted. Under the Geneva Conventions Act 1957 (Cth), it is for an Australian court to determine whether there factually exists an international armed conflict at the relevant time, applying the legal standards in the conventions as incorporated in the Act.
The Indonesian military's seizure of the village of Batugade on 7th October 1975 triggered an international armed conflict to which the 1949 Geneva Conventions applied. All relevant national parties (Australia, Indonesia, and Portugal) were signatories to the Geneva Conventions for the duration of the conflict.
Indonesia's control over East Timor increased gradually after the invasion in 1975. From approximately December 1978 until September 1999, Indonesia was in sufficient actual control of the territory to be considered an occupying power. Although resistance continued, it was not sufficient to nullify the state of occupation. The protective provisions of the 4th Geneva Convention applied from the moment the international armed conflict began until the UN Security Council passed Resolution 1272 on 25 October 1999, establishing the United Nations Transitional Administration in East Timor.
And remember that Australia's legal representatives argued repeatedly at the World Court in 1995 (over the Timor Gap Treaty case) that even though Australia was dealing with Indonesia, it still recognized that the people of East Timor had the right to self-determination and was a non-self-governing territory under Chapter XI of the UN Charter.
It said that it recognized this position even before Portugal accepted it in 1974, and it dealt with Portugal because general international law imposed no obligations on itself not to deal with Portugal.
Similarly, it was dealing with Indonesia because general international law imposed no obligations on itself not to deal with Indonesia.
But, it said, it still recognized East Timor's right to self-determination.
Another rock: The United Nations refused to allow its personnel to testify before the Commission on Truth and Friendship, which was formed in March 2005.
It's clear that an international legal norm has now crystallized against governments granting amnesty for serious human rights violations.
So in 2009, there will be elections in Indonesia. Generals Prabowo, Wiranto and Sutiyoso will be campaigning in these elections.
It's the 5th anniversary of the Munir assassination, the 10th anniversary of the East Timor ballot, the 25th anniversary of the Tanjung Priok massacre, and the common thread in all these events is the TNI.
Along with our Indonesian human rights friends, who will be mobilising in 2009, we in Australia can do our bit to raise awareness too.
In some capital cities in Australia, people have already begun planning to raise the question of justice for East Timor around International Women's Day in March 2009. After all, women suffered all manner of criminal violations during the occupation.
Why not join in? Come and see me after this talk if you want to participate.
And the weekend of the 29th and 30th of August 2009 is the tenth anniversary of the ballot. Once again, a nation-wide awareness campaign would be quite useful.
Another rock that's lying around: more than 18,000 Indonesian students study in Australia. We must reach out to them in a coordinated manner in 2009. They were never told the facts about what their military did in East Timor. We can change this state of affairs.
Remember also that Chinese East Timorese may have a case under the Genocide Convention. They were targeted not because they were suspected to be Fretilin (a 'political group', which is not protected by the Genocide Convention) but because of their membership of a 'national, ethnical or racial' group (which is protected by the Convention).
There are other things happening both domestically and overseas, but for now, why not join or assist the cause justice in 2009?