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27 March 2009

Transitional Justice Forum: Unfinished business in East Timor

http://tj-forum.org/archives/003471.html Transitional Justice Forum March 24, 2009 Unfinished business in East Timor Posted by Helena Cobban at 13:03 Note: This is a submission from new TJF contributor Evelyne Schmid.

The UN Security Council decided unanimously on February 26 to keep its peacekeeping mission in East Timor (UNMIT) for another 12 months, noting that the political and security situation there remains fragile and many cases of serious human rights violations remain unaddressed. The 1,500-strong international police force was given authority over East Timor's internal security force in 2006, after tensions between the police and military led to deadly violence. One of the main tasks of UNMIT is the restoration and maintenance of public security through the provision of support to the Polícia Nacional Timor-Leste (PNTL, the Timorese national police). Two and a half years later however, the Timorese police force is still a weak, factionalized and unaccountable force and some of its most senior members have been accused of human rights abuses.

East Timor’s president Ramos Horta last week went to New York to lobby UN members not to abandon his country prematurely. While security in Timor has improved since the unraveling of law in 2006, UN Security Council members agreed on the necessity to renew UNMIT’s mandate for another year.

Although not widely reported, a recent decision of East Timor’s highest court casts doubts on the sustainability of international efforts to enhance accountability for human rights abuses. The court’s judgment in the case of a “fake policeman” may only add to the already daunting challenges to build a sustainable, human rights abiding and democratic police force. Online reports explained that East Timor’s highest court has found the agreement between the East Timorese government and the United Nations Police mission non-binding and unconstitutional.

The December 2008 court decision demonstrates that to prevent future abuses, many challenges remain. Moreover, the court case shows that the there is a long way to go to address the culture of impunity within the police force and potentially across institutions.

The case of the “fake policeman”

Radio Australia reported the decision of East Timor’s highest court of appeal concerning the "fake policeman". An audio is available here . One of the most senior East Timorese police officers lost his job after a disciplinary procedure found practices carried out by him in violation of human rights. The interim PNTL commander of Baucau, the second largest city after Dili, was sent home by the UN Police Commissioner . The fallible Timorese officer apparently twice handed over his weapon, but repeatedly went back to work until he was arrested by the UN police, charged and convicted of a false identity crime by a local court. Some of the allegations against the police commander and some of his colleagues are described in the UN Secretary-General’s report on East Timor .

The Baucau police officer appealed the decision. East Timor's court of appeal, in December 2008, overturned his earlier conviction on grounds that the UN police commander was not in a position to suspend the officer. According to Radio Australia , East Timor’s highest court found the agreement between the Timorese government and the UN was not constitutional. As Stephanie March from Radio Australia puts it, this decision casts doubt “over exactly who is the fake policeman.”

As Bu Wilson from the Australian National University writes in the East Timor Law Journal , UNPOL’s executive policing authority is derived from the Supplementary Policing Agreement between the Government of Timor-Leste and the United Nations signed on 1 December 2006. The Court of Appeal Decision found that as the Supplementary Agreement was not ratified by Parliament and promulgated as required by the Constitution of Timor-Leste, it had no legal force.

What could the decision mean for transitional justice and the rule of law in East Timor?

If other challenges to the action of the UN police over the last two years follow, the case of the “fake policeman” could mean that other executive policing decisions that have been made by the United Nations Police (arrest, institutional decisions, etc.) are potentially not legally valid. The court’s decision also implies that currently, the Timorese police officers are under no one’s authority. This is probably not exactly what rule of law practitioners wanted to achieve.

Wilson mentioned in the radio report that prior to the court case of the “fake policeman” the relations between the UN police and the PNTL have been deteriorating. According to her, tensions arise because UNPOL had been placed under considerable pressure to have PNTL certified and operational before there is any evidence of PNTL being ready.

Let’s consider the possible consequences of the court decision in relation to post-conflict justice in Timor Leste. The ingredients are a police who seems to escape accountability to anyone, a weak government and a UN mission under pressure to close down. At the same time, most UN pledges concerning human rights and accountability for human rights abuses committed in Timor-Leste between 1975 and 1999 remain unfulfilled. Human rights groups complain that the “international community” failed to seriously examine the recommendations contained in the report of the Timorese Reception, Truth and Reconciliation Commission (CAVR). In my view, the initial plan on how to tackle transitional justice issues in Timor Leste was highly innovative and promising: a truth commission well adapted to the local legal and cultural traditions would aim at inquiring the big picture of the past violations and would support the reintegration of individuals who had caused harm to their communities through minor offenses. At the same time, a UN led serious crimes unit would try serious violations of human rights. The idea was that both mechanisms would be institutionally linked to ensure that perpetrators are dealt with at the appropriate level.

The trouble was that the plan relied on the assumption that both counterparts would complement each other . However, the serious crimes process proved unable to reach accused (and sometimes already indicted) individuals outside Timor-Leste. In addition, the serious crimes process was not able to investigate or prosecute the vast majority of perpetrators, even those who had participated in the 1999 violence (rather than the entire period of Indoensia's occupation and internal factional conflict; 1975-1999). As a result, some who participated in the community reconciliation process of the truth commission felt resentful because perpetrators of more serious crimes remained outside the scope of either process. After the violence in 2006, the Security Council decided in August 2006 to reopen the serious crimes process to investigate crimes committed in 1999 and a UN investigation team went back to work in February 2008. Little is reported on its activities and if some of the readers are familiar with the investigations during the last year, your comments would be highly appreciated.

To conclude, ten years after Indonesia’s violent exit from Timor-Leste, many still await justice. The governments of East Timor and Indonesia are unlikely on their own to take concrete steps to ensure accountability, to end impunity and to provide reparations to victims. The UN mission’s mandate falls short of the demands of the CAVR to fully reconstitute the serious crimes processes . One may hope that UN members agree to support the mission until it achieves to improve the human rights situation and the administration of justice, including by the police force.

It remains to be seen if the 2008 decision of the Appeals Court will be followed by similar legal challenges. I am wondering if underlying the court decision there is not somehow a dilemma for outside actors engaged in post-conflict rule of law and in building accountability for past abuses. On the one hand, rule of law practitioners seek to enhance domestic courts so that they are enabled to apply the constitutional provisions of the “reformed” country. The East Timorese appeals court may have evaded the question of what international agreements precisely require parliamentary ratification and the court’s invocation of the provision may be farfetched. But what should the UN do about an unpleasant decision of the judiciary? The UN is probably well advised not to discredit the court’s interpretation of the constitutional provision. Maybe this explains why Williams has observed an almost total lack of UN reporting on the court case with potentially wide ranging consequences?

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