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27 March 2009

ICTJ: An Unfinished Truth in Indonesia and Timor-Leste

http://www.ictj.org/en/news/features/2404.html March 24, 2009 An Unfinished Truth in Indonesia and Timor-Leste - In An Unfinished Truth, ICTJ reviews the final report of the Timorese-Indonesian Commission of Truth and Friendship (CTF) on atrocities committed in East Timor in 1999. It explains the contributions that the final report made to truth-telling on the violence of 1999, but also identifies the CTF report's weaknesses and shortcomings.

In July 2008 the Timorese-Indonesian Commission of Truth and Friendship (CTF) submitted its final report on atrocities committed in East Timor in 1999. Previously the CTF had been criticized by human rights groups, especially in relation to its power to recommend amnesties and its controversial public hearings. Many saw it as a tool of impunity. Against this backdrop, the CTF's final report came as a surprise to many. It concluded that crimes against humanity had been committed by Indonesian security forces in East Timor during 1999.

An Unfinished Truth explains the contributions that the final report makes to truth-telling on the violence of 1999, but also identifies the CTF report's weaknesses and shortcomings. It concludes that while the CTF's report is a victory in some respects, there is much more work to be done.

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An Unfinished Truth: An A nalysis of the Commission of Truth and Friendship's
Final Report on the 1999 Atrocities in East Timor

Executive summary

I. Introduction

II. The CTF Report: Content, Findings and Recommendations

A. The substantive content of the report
B. Principal findings of the CTF report
C. Recommendations of the CTF

III. Commentary on the CTF report
A. The CTF’s review of previous mechanisms
B. The CTF’s findings

IV. The CTF’s Recommendations
A. Creation of the recommendations
B. Substance of the recommendations
C. Implementation and impact

V. The Way Forward

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full document http://www.ictj.org/static/Asia/Timor/UnfinishedTruthHirst.pdf

An Unfinished Truth:

An A nalysis of the Commission of Truth and Friendship's
Final Report on the 1999 Atrocities in East Timor

Executive summary

In July 2008 Indonesia and Timor-Leste’s bilateral truth commission, the Commission of Truth and Friendship (CTF) submitted its final report. The commission had been tasked with reviewing the work of previous transitional justice mechanisms and revealing the “conclusive truth” regarding institutional responsibility for violence committed in East Timor in 1999.1 During the CTF’s three years of operation, it attracted significant criticism. This focused largely on the commission’s power to recommend amnesty and on the problematic public hearings that it conducted.2 The UN refused to participate in CTF processes, and human rights groups condemned the commission as a whitewash designed to perpetuate impunity.

Against this context, many were surprised when the CTF produced a report confirming that Indonesian security forces and civilian authorities committed crimes against humanity. By endorsing the report’s findings at the ceremony to mark its submission, President Susilo Bambang Yudhoyono provided Indonesia’s first official recognition that its state institutions had systematically violated human rights in East Timor. These developments were justifiably greeted with both relief and praise. However the CTF’s final report deserves a closer investigation and a more nuanced appraisal. This paper reviews the CTF’s document review and research, its findings and its recommendations. It is intended to supplement the ICTJ’s first monitoring report, which covered the CTF’s establishment, mandate and public hearings.3

The CTF’s document review and fact-finding work

The CTF’s terms of reference required it to review documents collected and created by the four main transitional justice mechanisms that predated the commission. Those mechanisms were:

• The Indonesian National Commission of Inquiry on Human Rights Violations in East Timor in 1999 (known in Indonesian as KPP-HAM);

• The Indonesian Ad Hoc Human Rights Court on East Timor;

• The Special Panels for Serious Crimes; 4


1 CTF Terms of Reference (TOR), art.12.

2 For background on the CTF and an analysis of its establishment process, mandate and public hearings, see Megan Hirst, “Too Much Friendship, Too Little Truth: Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste,” ICTJ Occasional Paper Series (January 2008).

3 Ibid.

4 Note that the CTF’s terms of reference only referred expressly to the mechanisms established in Indonesia and Timor-Leste for the trial of international crimes, not those that conducted investigations and prosecutions. However, the commission gave this mandate a broad, purposive interpretation and thus also reviewed investigative files created by the prosecuting authorities involved in both processes.

• The Commission for Reception, Truth and Reconciliation (commonly referred to by its Portuguese acronym, CAVR).5

This process of document review was undertaken by a team of researchers recruited by the CTF’s expert adviser. This process was ultimately the basis for the CTF’s most meaningful contributions for two reasons.

First, it allowed the CTF to provide critiques of the previous transitional justice mechanisms and the conclusions they had reached. Since all four previous mechanisms have been the subject of controversy in either Timor-Leste or Indonesia, an objective review of their work by a bilateral institution was a worthwhile endeavor. Ultimately the CTF concluded that the reports of KPP-HAM and the CAVR (including the OHCHR report) had some limitations, but it did not disagree with their findings.6 In contrast, the commission’s review of the ad hoc trials in Indonesia demonstrates the fundamental flaws in that process and in doing so throws considerable doubt on the results of those trials.7

Second, thedocument review provided the commission with the strongest evidence in support of its findings. Much of this came from the Serious Crimes Unit (SCU)’s case files, which had not been reviewed by previous truth-seeking mechanisms.

The CTF’s findings

Despite the shortcomings of the commission’s research, valuable findings were made.

• The CTF’s findings corroborate those already made by KPP-HAM, the CAVR, the OHCHR report and others: namely that crimes against humanity were committed in East Timor in 1999 by Indonesian military, police and civilian officials. Two annexes to the CTF report, produced by the CTF’s expert adviser through the document review process, collate and analyze a substantial volume of evidence to support these findings.

• The CTF explains that the commission of serious crimes by security apparatus was not an aberration. In fact it resulted from established policies and practices within the Indonesian security sector.

• Although the commission was required to focus on institutional rather than individual responsibility, its report nonetheless presents evidence that implicates senior Indonesian officials. In addition, the framework used to analyze this evidence (notably the definition of crimes against humanity) is principally relevant to questions of individual criminal responsibility. Thus the CTF’s findings are readily transferable to discussions or proceedings concerned with individual accountability.

5 TOR, art.14 (a) (i). The CAVR was mandated to look at human rights violations that took place between 1974-195, covering the periods of the civil war (1974-1975) and the Indonesian occupation (1975-1999.) See www.cavr-timorleste.org

6 The OHCHR report was commissioned bythe UN’s Office of the High Commissioner for Human Rights and written by Geoffrey Robinson. See Geoffrey Robinson, East Timor 1999: Crimes Against Humanity. (Dili and Jakarta: HAK Association and ELSAM, 2006). It was annexed to the CAVR’s final report and formed the basis for many of the CAVR’s findings on events in 1999. For this reason the CTF also included the OHCHR report in the scope of its document review.

7 All 18 men tried through this process were eventually acquitted – either at trial or on appeal.

And yet, the CTF report also has some weaknesses:

• The report avoids touching on a number of important questions relating to institutional responsibility. Did senior officials instigate the violence or simply fail to prevent it? What was the role of discrete units, such as the special forces? The report likewise fails to address a number of poorly founded accusations made against individuals and institutions during the commission’s public hearings.

• The findings made about the responsibility of pro-independence groups are based on minimal evidence and flawed legal analysis. They appear to have been motivated by a desire to share blame for the events of 1999. They are unconvincing.

• The commission’s discussion of the history and causes of violence is scantily researched and poorly reasoned. The report seeks to excuse this on the basis that its mandate was to focus only on events during 1999. However it is clear that an understanding of earlier events would have helped develop a more coherent, meaningful truth, as well as provide a stronger basis for designing useful recommendations.

The CTF’s recommendations

The CTF made a number of recommendations. They are, in broad terms, beneficial. While some of the recommendations concerning bilateral ties appear to bear little relation to the past human rights violations discussed in the report itself, others deal with institutional reform, reparations, documentation and research relating to past violations and creating a commission for disappeared persons.

The recommendations most significant weakness is their generality. They are broadly termed and provide little detail. Because most were intentionally phrased so they apply to both Timor-Leste and Indonesia, they do not respond to the specific circumstances of each country.

However, many of the recommendations agree with those made by the CAVR or other bodies. They therefore may serve to add extra political momentum to these more detailed existing recommendations. As in the case of the CAVR, the greatest challenge lies in ensuring implementation. There is a danger that only the less controversial recommendations, such as those relating to border management, will be implemented.

The minimal movement on implementation since the report’s submission and the absence to date of parliamentary debate on the report in either country are concerning.

With these issues in mind, the CTF’s final report should be viewed as the beginning rather than the end of a process. Despite the commission’s mandate, its truth is not conclusive. Revealing a more complete truth must be an ongoing process, as the CTF’s own recommendations for future research demonstrate. Concerted effort is required to ensure that the recommendations are not neglected and to make the most important of its findings known, especially in Indonesia.

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