The Commission of Truth and Friendship

Indonesia-Timor Leste: Competing

Concepts of Justice





Andrew Harrington
Joint B.A (Hon.), LL.B / M.A. International Affairs
Norman Paterson School of International Affairs &
Faculty of Common Law, University of Ottawa
Joint Candidate
Contact: andy_harrington78@hotmail.com

















02/12/2007

2




























A Klee painting named Angelus Novus
shows an angel looking as though he is a
bout to move away from something he is
fixedly contemplating. His eyes are
staring, his mouth is open, his wings are
spread. This is how one pictures the angel
of history. His face is turned toward the
past. Where we perceive a chain of events,
he sees one single catastrophe which keeps
piling wreckage upon wreckage and hurls
it in front of his feet. The angel would like
to stay, awaken the dead, and make whole
what has been smashed. But a storm is
blowing from Paradise; it has got caught
in his wings with such violence that the
angel can no longer close them. This
storm irresistibly propels him into the
future to which his back is turned, while
the pile of debris before him grows
skyward. This storm is what we call
progress.


Benjamin, Walter. On the Concept of
History. Gesammelten Schriften I:2.
Suhrkamp Verlag. Frankfurt am
Main, 1974, IX
(Translated from original in German)

3
Background
1

Timor-Leste (formerly East Timor) shares half the island of Timor with Indonesia and has
less than one million inhabitants. It is a village-based society with diverse, yet strong, cultural
traditions. The country has a violent history. After a brief civil war, Timor-Leste declared
independence from Portugal in 1975 and was invaded and occupied by Indonesian forces nine
days later. It was illegally annexed as the province of Timor Timur. Over the next twenty-
four years, Indonesia waged a brutal counter insurgency campaign against the Timorese in
which between 104,000 to 183,300 Timorese were killed, starved, and executed.
2
Under
intense international pressure, the United Nations (UN) supervised a referendum on
independence for August 1999. Despite a violent run up, 78.5% of Timorese voted for
independence.
3
Violence erupted within hours; pro-integration militias (organized, trained,
and explicitly supported by Indonesian military) and elements of the Indonesian military
completed a countrywide scorched-earth campaign. Destruction was complete; homes, water
supplies, schools, government buildings, private businesses, and the countrys entire electrical
grid were destroyed. An estimated 2,000 Timorese were killed, 300,000 more forced into
Indonesian West Timor, and a full two-thirds of the population was displaced. Almost over
night, the nation ceased to exist. Following three years of UN administration, Timor-Leste
became an independent nation on May 20
th
, 2002 after nearly 425 years foreign rule.
Transitional Justice Attempts
In response to violence in Timor-Leste, four separate transitional justice processes have been
attempted. The first was in Indonesia as part of that nations own transition from Soehartos

1
See: Timeline of UN Presence in Timor-Leste. United Nations Office in Timor-Leste.
<http://www.unotil.org/UNMISETWebSite.nsf/TimeLineofUNMISET.htm?OpenPage> (Accessed November
19, 2007) and: Country Profile: East Timor. BBC News (Monday, 26 June 2006)
<http://news.bbc.co.uk/2/hi/asia-pacific/country_profiles/1508119.stm> (Accessed November 19, 2007)
2
See: Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) Part 12,
Annex 2: Date and Statistical Methods. Archived on: ETAN.org- East Timor Action Network
<http://www.etan.org/news/2006/cavr.htm> (Accessed November 19, 2007)
3
The actual referendum question asked the people of Timor-Leste whether they wanted special autonomy
within Indonesia, or not; a No vote was in essence a vote for outright independence.
4
kleptocracy to democracy, and under intense international pressure to punish those
responsible for 1999 violence. The National Commission of Inquiry on Human Rights
Violations in East Timor (KPP-HAM) was established in September 1999, followed by the
Ad-Hoc Human Rights Court for prosecutions. The KPP-HAM mandate was limited to
gathering data and information regarding human rights violations between January and
October, 1999.
4
The process was viewed as ineffective,
5
though successful in exonerating
the guilty and burying the truth;
6
some blame the UN for failing to support the process.
7

The second attempt was more successful; the Special Panel for Serious Crimes in East
Timor (SPSC) was established under a UN mandate and granted exclusive and universal
jurisdiction for offences between January 1
st
and October 25
th
, 1999.
8
Despite successful
prosecutions, when it ceased operating in May of 2005, 339 of the 440 persons indicted
remained in Indonesia outside the courts jurisdiction.
9


4
Executive Summary Report on the investigation of human rights violations in East Timor. Jakarta, January 31,
2000. Archived on East Timor Action Network site.
<http://www.etan.org/news/2000a/3exec.htm> (Accessed November 19, 2007)
5
Of 18 defendants brought before the ad hoc human rights court, 12 were acquitted and six convicted; five of the
convicted were then acquitted on appeal, while the sixth Eurico Guterres remained free pending appeal,
which was rejected in 2006 and he began serving the only jail sentence to come from the proceedings, at 10
years, minus time served.
6
Pro-Jakarta militia leader, Eurico Guterres, begins sentence Financial Times, Jakarta (May 4 2006). Archived
on East Timor Action Network.
<http://www.etan.org/et2006/may/01/04pro-j.htm> (Accessed November 21, 2007); Indonesia - East Timor
CTF: Why the UN must boycott it? Review: 178/07 (August 1, 2007).
<http://www.achrweb.org/Review/2007/178-07.htm> (Accessed November 21, 2007); and see generally: David
Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta. International Center
for Transitional Justice, Occasional Paper Series (August 2003). (Cohen)
<http://www.ictj.org/images/content/0/9/098.pdf> (Accessed November 21, 2007)
7
Former foes seeking truth and friendship Ati Nurbaiti Opinion News Jakarta Post, Dili (Tuesday, October
16, 2007). (Nurbaiti)
<http://www.thejakartapost.com/misc/PrinterFriendly.asp> (Accessed November 20, 2007)
8
UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over
Serious Criminal Offences. UNTAET/REG/2000/15, Section 2.3.
<http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf> (Accessed November 19, 2007)
9
Digest of the Jurisprudence of the Special Panels for Serious Crimes Judicial Systems Monitoring
Programme; JSMP Report Dili, Timor Leste (April 2007), pp 14-15.
<http://www.jsmp.minihub.org/Reports/2007/SPSC/SERIOUS%20CRIMES%20DIGEST%20(Megan)%202504
07.pdf> (Accessed November 19, 2007)
5
The third attempt was the Commission on Reception, Truth, and Reconciliation
(CAVR). The CAVR was mandated to record human rights violations and political violence
in Timor-Leste between April 25
th
, 1974 and October 25
th
, 1999.
10
The final report, Chega!
(Enough!), generated a detailed narration of human rights violations before 1999 and a
series of forward-looking recommendations. However, former Timorese President and
guerrilla leader Xanana Gusmo
11
criticized the recommendations, noting the grandiose
idealism that they possess is well manifested to the point that it goes beyond conventional
political boundaries.
12
As Dionisio Babo Soares
13
comments, the recommendations may
fulfill the expectations of domestic and international critics, but were exaggerated so far
beyond reasonable thinking leaving them destined to remain merely as nice findings in the
book shelves of history.
14
Gusmos pressure and a tepid reception by Parliament meant
the document was not circulated as broadly as envisioned, thus limiting its impact.
15





10
Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth, and Reconciliation in
East Timor UNTAET/REG/2001/10 (13 July 2001)
<http://www.un.org/peace/etimor/untaetR/Reg10e.pdf> (Accessed November 19, 2007)
11
His comments and ability to move forward in reconciliation are of particular import since he was not merely
President at the time, but had also been the leader of the countrys guerrilla resistance, having fought countless
times against Indonesian occupiers.
12
Speech of His Excellency President Kay Rala Xanana Gusmo on the Occasion of the Handing Over of the
Final Report of the CAVR to the National Parliament (28 November 2005). Archived by JSMP. (Presidents
Final Report of CAVR to National Parliament)
<http://www.jsmp.minihub.org/News/2005/December/011205_XG%20Speech_eng.htm> (Accessed November
19, 2007
13
Dionsio Babo Soares is Co-Chairman of the Timorese side of the Commission of Truth and Friendship Timor
Leste Indonesia and one of the foremost experts on indigenous culture and justice in Timor-Leste. His position
could be seen to bias him on a number of key issues, but his background as an impartial academic his reported
initial reluctance to accept the appointment temper this.
14
Dionsio Babo Soares, East Timor: Reconciliation and Reconstruction East Timor Law Journal; 2007 ETLJ
3. (Co-Chairman: Commission of Truth and Friendship Timor Leste Indonesia, East Timor Political
Development) (Babo Soares)
<http://www.eastimorlawjournal.org/ARTICLES/2007etlj3easttimorreconciliationandreconstructiondionisiosoar
es.html> (Accessed November 20, 2007)
15
For a scathing indictment of this inaction, see generally: The Dissemination of "Chega!, Final Report of the
CAVR." Judicial Systems Monitoring Programme Justice Update, No. 15 (November 2006).
http://www.jsmp.minihub.org/Justice%20update/2006/Ju%20CHEGA%20CAVR/JU%20CAVR%20English.pdf
> (Accessed November 21, 2007)
6
Commission on Truth and Friendship (CTF)
Criticisms over the recommendations aside, the CAVR was hardly a failure; it was highly
successful in reintegrating former militia members, providing a forum (modeled on Timorese
traditional justice) for individual victims and perpetrators to share their experiences, referring
numerous cases to the SPSC, recommending the establishment of an international criminal
tribunal, and wove the first national narrative of blood and suffering.
Despite the three previous attempts at transitional justice, a gap persisted between the
international and NGO
16
communitys lust for justice and the Indo-Timorese desire for
justice on their own terms. In an interesting experiment, underscoring of the importance
attributed to attaining a justice of their own design and import, Timorese and Indonesian
leaders
17
scripted a fourth joint transitional justice process on the 14
th
of December, 2004 in
Bali.
18
The preamble of the CTF-Terms of Reference (TOR) emphasizes the novelty,
explaining it to be a new and unique experience whereby two countries, with a recent shared
history, agree with courage and vision to look at the past as a lesson and embrace the future
with optimism.
19
The approach differs notably from traditional concepts of transitional
justice, insofar as it focuses on reconciliation and friendship between nations, not individuals
or groups. The international border between Timor-Leste and Indonesia may seem an illusory
concept especially since the countries were one for 24 years but that border is precisely
what so many Timorese died for.

16
Non Governmental Organization.
17
H.E. President Susilo Bambang Yudhoyono and H.E. Vice-President Jusuf Kalla and the leaders of the
Democratic Republic of Timor-Leste as represented by then-H.E. President Kay Rala Xanana Gusmo and then-
H.E. Prime Minister Mari Alkatiri.
18
Commission of Truth and Friendship Indonesia-Timor Leste. About the Commission (Saturday, 05 August
2006)
<http://www.ctf-ri-tl.org/ctf1/index.php?option=com_content&task=view&id=62&Itemid=43> (Accessed
November 19, 2007)
19
Terms of Reference for The Commission of Truth and Friendship Established by The Republic of Indonesia
and The Democratic Republic of Timor-Leste, s. 11, preamble. (CTF Terms of Reference)
<http://www.ctf-ri-tl.org/ctf1/index.php?option=com_content&task=view&id=61&Itemid=44> (Accessed
November 19, 2007)
7
This paper analyzes the CTFs mandate, criticisms against it, and its supporting
arguments. The debate over the CTF can be distilled into the two camps; 1. The principled
position, which sees international penal justice proponents demanding justice out of
principle, and who see justice and the rule of law as goals in and of themselves, rather than
processes; 2. The realist position which sees justice as means to an end, namely stability,
peace, democracy, and good governance, and thus are willing to pursue various modes of
justice with the process being just as much an end as the final outcome itself. The realist
camp would dispense with penal justice were it unable to contribute to the ultimate goal,
whereas the principled position dogmatically pushes for prosecution. The principled position
criticizes the process as failing to deliver international justice, whitewashing the past and
ignoring victim concerns.
20
The realist camp sees the CTF as an ends-driven process and
representative of a genuine attempt by both nations to move beyond their shared violent past,
thus achieving their own definition justice, rooted in shared collectivist cultural values.
Regardless of the outcome of the CTF as success or failure in the eyes of either camp, the
findings do not bar Security Council action in establishing an international tribunal.
CTF Mandate and Justice
The CTF-TOR carefully notes the process is neither a uniform accommodation to victim or
perpetrator concerns, but part of a joint yet simultaneously individual forward-looking
transitional process, which itself is an end, just as is the final outcome. Almost apologetically
the CTF-TOR explicitly acknowledges the complexity of Indonesias transition, chiefly the
political reforms which began only at the end of Soehartos reign in 1998:
in the history of countries and peoples, all and any change of an old political system requiring a radical
transformation, entails as an almost inevitable consequence different challenges of multi-dimensions.
The fact remains that in Indonesia, an archipelagic nation with a great diversity, the process of political
transformation has been even more complex than in any other country.
21


20
See: Open Letter to United Nations Security Council (November 2007). Signed by more than 50 NGOs.
<http://www.etan.org/news/2007/11unscltr.htm> (Accessed November 26, 2007)
21
Ibid, s. 5.
8

The granting and receiving of independence were single steps in the transition to democracy
for both countries; coming to terms with the violence associated with that birth is another.
While calls for justice under the prosecutorial model persist, to this date, they have
remained just that, calls.
22
Faced with international inaction, Indonesia and Timor-Leste
together opted for truth and friendship. The nations articulated their own definition of
justice as a goal and concept served best by truth and acknowledging of responsibility.
While noting the usefulness of the prosecutorial model of justice, the CTF-TOR asserts it may
neither lead to truth, nor promote reconciliation.
23
The prosecutorial model is at odds with
CTFs stated goals and principles which see the process driven by a desire to resolve residual
problems of the past and deepen bilateral relations between the nations and people.
24

Accordingly, the foundational principles establish a forward looking bilateral reconciliatory
approach intended to bring to a closure a chapter of [the] recent past through joint efforts.
25

The CTFs temporal jurisdiction is limited to events prior to and immediately after the
popular consultation in 1999.
26
As such, the 24-year occupation period is excluded.
Perhaps the most controversial features of the CTF are the envisioned outcomes which
conform faithfully to a non-prosecutorial definition of justice. The CTF is to produce a
shared historical record including the facts, nature, causes, and extent of 1999 violations by
examining and reviewing findings from the flawed KPP-HAM, SPSC proceedings, CAVR

22
For example, a Commission of Experts has openly recommended to the Security Council that an ad hoc
international criminal tribunal should be established. See generally: Letter dated 24 June 2005 from the
Secretary-General addressed to the President of the Security Council. United Nations Security Council
S/2005/458 (15 July 2005)
<http://www.etan.org/etanpdf/pdf3/N0542617.pdf> (Accessed November 26, 2007)
23
Ibid, s. 10.
24
Ibid, s. 7.
25
Ibid, ss. 7 & 8.
26
Ibid, s. 12.
9
processes, and interviews.
27
This is distinguishable from previous attempts in both countries,
as they focused on perpetrator-against-victim narratives, rather than a shared historical
account. The CTF is further mandated to devise methods and recommendations to heal the
wounds of the past, to rehabilitate and restore human dignity.
28
Mindful of the transitional
situations complexity, it focuses on institutional responsibility, rather than the individual
responsibility of a penal approach,
29
and thus is granted the ability to recommend amnesty
for those who cooperate fully in revealing the truth irrespective of their crime.
30

Critique and Controversy: Victim-Centered Concerns
As explained in the CTF-TOR, for reconciliation and friendship to be achieved at the
international level, it presupposes this has already occurred at the interpersonal level.
31

Critics assert, however, that this is clearly not the case. Consequently, the CTF fails to
accommodate victims quests for justice either in the truth and reconciliatory or
prosecutorial notion.
32
Indeed the word, victim is conspicuously absent from the CTF-
TOR. As one protester complained, The CTF only defends the criminals and stands in the
way of justice. They don't hear the victims' voices.
33

Even when victims do testify, a disconnect between the CTFs concern with their
testimony and victim expectations is apparent; depositions are not meant to determine guilt or
satisfy a victims desire to be heard, but only to answer questions about how it happened.
As Commissioner Lt. Gen. (ret) Agus Widjojo explained in an interview:

27
Ibid, s. 14, ss. a & b.
28
Ibid, s. 14, ss c, i-iv.
29
Ibid, s. 13, ss b & c.
30
Ibid, s. 14, ss c, i-iv.
31
Ibid, s. 7.
32
Between the truth and friendship Jakarta Post Opinion News (Thursday, September 27, 2007) Agung
Yudhawiranata, Jakarta. Archived by East Timor Action Network. (Yudhawiranata)
<http://www.etan.org/et2007/september/29/27ri-tim.htm> (Accessed November 20, 2007)
33
Protesters demand justice as East Timor probe closes. The Taipei Times. Agencies, Dili (Wednesday, Sep
26, 2007) Page 4.
<http://www.taipeitimes.com/News/world/archives/2007/09/26/2003380470> (Accessed November 20, 2007)
10
Friendship between the two countries cannot be burdened too much by the perception of wrong or not
wrong. But it should be placed within the moral and political responsibility, to agree to seek a closure
on past mistakes and build friendship based on reconciliation.
34


Widjojo continued, noting the CTF is a political process, not a legal one which created the
challenging task of conveying to the public that the CTF is political, not legal as most
expected.
35
This subtle, yet paramount distinction is difficult for victims to understand and
even for the Commissioners on occasion who, Widjojo explained, frequently struggle to
obtain an analysis designed to differ from a judicial one, and to avoid slipping into merely
finding who [is] guilty.
36
The impact of this subtle distinction on CTF legitimacy is aptly
demonstrated by cyber-graffiti under Widjojos interview on the Jakarta Post website:
Comment From: truth and what? Niether [sic] the UN or anyone else even bothers to read the text of
articles on this any more. The CTF and you are talking to yourselves.
37


The general complaint that victims are ignored is strongly supported by the locations of CTF
proceedings; almost all activities took place in either Denpasar or Jakarta,
38
thus excluding all
Timorese but for officials and offering a clear home-team advantage to Indonesian officials
many of whom are still regarded as national heroes in the Indonesian narrative of events.
Only the final session took place in Dili.
39
However, even at the Dili hearing, Timorese
leaders
40
chose to testify behind closed doors, preventing any possible vindication or

34
Progress 'very slow' in truth and friendship body. The Jakarta Post-Headline News (October 12, 2007).
(Progress 'very slow' in truth and friendship body)
<http://www.thejakartapost.com/detailheadlines.asp?fileid=20071011.A06&irec=5> (Accessed November 20,
2007)
35
Ibid.
36
Ibid.
37
Ibid.
38
Programs and Activities of the CTF.
<http://www.ctf-ri-tl.org/ctf1/index.php?option=com_content&task=category&sectionid=5&id=25&Itemid=48>
(Accessed November 29, 2007)
39
Even though it was held in the Timorese capital, the vast majority of Timorese victims live in abject poverty
and often find transport to Dili difficult, let alone passage to Bali or Jakarta; the CTF itself is bi-nationally
funded, not internationally, and lacks the necessary resources to facilitate deponents travels.
40
These include former President, guerrilla leader, now Prime Minister, Xanana Gusmo, and former guerrilla,
current Brigadier-General Taur Matan Ruak, Commander of the Timorese Defence Forces "Xanana testifies
before CTF" UNMIT Daily Media Review - 25 September 2007 (Archived by East Timor Action Network)
11
satisfaction for Timorese listening to their leaders depositions. The failure to balance victim
and perpetrator narratives and concerns may, in one authors lament regarding the outcome of
Ad Hoc Human Rights Court, allow Indonesian officials to continue to cling to a version of
the violence in East Timor that is accepted nowhere outside of Indonesia,
41
a version in
which Indonesian troops nobly parachuted into Dili in 1975 to defend against communism
and help build up a poor neglected former Portuguese colony; and [] received nothing in
return but international scorn, particularly in 1999.
42
The failure to adequately hear and
address victims and the CTFs limited temporal jurisdiction which isolates 1999 events
historically both increase the likelihood of a myopic account, removed from root causes.
That said, the critiques above rely on a misinterpretation of the CTFs mandate, which
as written, has little concern for individual victims and much more for a shared narrative and
reconciliation. This requires what Borneman refers to as confessions, meaning a focus
primarily on the perpetrator, with confessions coerced in some manner in addition to victim
witnessing and truth-telling.
43
Following Commissioner Widjojos interpretation of the
CTFs mandate, since the CTF is a bilateral international institution concerned exclusively
with interstate affairs, not victim-perpetrator attention to victims ought to be materialized
through domestic policies in each country individually, not through the CTF.
44

Overall, as a respected Timorese human rights organization Lao Hamutuk (Walk
Together) notes, reconciliation between the two governments cannot substitute reconciliation

<http://www.etan.org/et2007/september/29/dailym25.htm> (Accessed November 23, 2007; and: East Timor
Forces Commander Appears Before Truth Commission. AFP (September 28, 2007). (Archived on Indonesian
Embassy in Ottawa website)
<http://www.indonesia-ottawa.org/information/details.php?type=news_copy&id=4760> (Accessed November
23, 2007)
41
Cohen, supra, note 4.
42
Nurbaiti, supra, note 5.
43
John Borneman, Reconciliation after Ethnic Cleansing: Listening, Retribution, Affiliation. Public Culture
14(2): (Duke University 2002) p 289. (Borneman)
44
Progress 'very slow' in truth and friendship body, supra, note 26.
12
between the people of those nations which they, among others, argue has not occurred. A
logical precondition to reconciliation is the proper identification of the parties to be reconciled
and to ensure their genuine acceptance and participation. Without full participation by victims
and perpetrators who in this case many observers argue remain the individuals involved, not
states the CTF's version of reconciliation can only be a sham.
45

This view, however, presupposes the international criminal approach is better in
addressing victim concerns. The reality, however, is the international criminal model turns
victims into purpose-driven cogs in an impersonal criminal machine; their statements are
valuable only insofar as evidence in establishing in a prosecutors case.
Amnesty and J ustice Concerns
Many CTF criticisms are directed against the CTF mandate, specifically against the focus on
perpetrator testimony and power to recommend amnesty. These aspects lead some NGO
critics, like Judicial Systems Monitoring Programme (JSMP), to view the CTF as designed to
shield from prosecution those who bear primary responsibility for crimes committed in
Timor Leste under the guise of a[n uncertain] truth and reconciliation function.
46

Returning to Commissioner Widjojo, he notes the CTF does not seek to restore dignity
only to victims through truth, but also to perpetrators.
47
Johny Marques, a former leader
of the Alfa militia serving a 33-year sentence for various counts of murder, indicated during
his testimony another disconnect between what perpetrators expected and what the CTFs
actually mandate entailed: For the sake of friendship between the two nations, why should it

45
Commission of Truth and Friendship Brings Neither. Lao Hamutuk Bulletin Vol. 6, No. 3: August 2005.
(Lao Hamutuk Bulletin #6)
<http://www.laohamutuk.org/Bulletin/2005/Aug/bulletinv6n3.html#Editorial:_Commission_of_Truth_and_Frien
dship_Brings_Neither__>(Accessed November 8, 2007)
46
Commission of Truth and Friendship Seeks to End the Search for Justice whilst Commission of Experts
Keeps it Alive. JSMP Press Release (14 March 2005). (JSMP Press Release March 2005)
<http://www.jsmp.minihub.org/Press%20Release/2005/ComparingCTFandCoE(e).pdf> (Accessed November
21, 2007)
47
Progress 'very slow' in truth and friendship body, supra, note 26.
13
be only Alfa members like myself who are singled out for accountability?
48
Perversely, it is
as one critic asserts: the public hearings have become forums for alleged perpetrators to
attempt to rewrite history by blaming the victims and the United Nations.
49
Judging by
Marques deposition who is not alone in his feeling of abandonment the above statement
should be qualified insofar as the hearings have become forums for some alleged perpetrators,
namely the very Indonesian officials who likely bear the greatest responsibility. As one
reporter noted, this seems partly because the CTF mandate is
not to find who is guilty, but instead to answer questions about how it happened and how similar crimes
can be prevented in the future. The tricky part: since both parties want to be friends, the villain must not
be made to look too bad
50


Thus when Major General Kiki Syahnakri, Commander of the Indonesian military in East
Timor in September 1999 (who has been indicted, with arrest warrants issued for crimes
against humanity) spoke at the CTF, it was not to accept responsibility and reconcile, but to
save face and foist blame for 1999 violence onto the UN, who he asserts actively conspired
to sway the vote in favour of independence and should [therefore] share the blame for the
mayhem.
51
He further insisted Indonesia could not be held entirely responsible for the
violence, and pointed instead at the international community particularly Portugal alleging
complicity in 1999.
52
Instead of fulfilling Bornemans confessional role anticipated in this
type of setting, senior Indonesian deponents have been defiant, themselves accusatory, and
focused on exonerating themselves by fingering others. Because the CTF seeks to avoid

48
Nurbaiti, supra, note 5.
49
NGOS call for closure of CTF AKI News, Jakarta (25 May, 2007), archived on East Timor Action Network.
<http://etan.org/et2007/may/31/25ngo.htm> (Accessed November 8, 2007)
50
Nurbaiti, supra, note 5.
51
U.N. Shares Blame for Timor Riots, Indonesia Says Reuters News, Telly Nathalia (October 24, 2007).
<http://www.reuters.com/article/latestCrisis/idUSJAK170157> (Accessed November 20, 2007)
52
Ibid.
14
making the villain look too bad, the CTF alleged perpetrators accounts have not been
vigorously cross-examined leaving the accuracy of their confessions unclear.
53

This problem may stem in part from the controversial, yet seemingly misunderstood,
amnesty provision in Article 14(c)(i). It must be remembered that the CTF works not under a
legal mandate, but rather political. Accordingly, the CTF has no power to grant
amnesties, but only to recommend them. It thus seems unimportant whether officials
cooperate fully in revealing the truth since the CTF can offer nothing other than a
recommendation. These recommendations have little significance; even if Indonesian
officials subsequently gain amnesty, it would relate to acts for which little threat of domestic
prosecutions existed in the first place. Conversely, despite Article 13(e) which asserts CTF
findings and proceedings are without prejudice toward ongoing or possible judicial
processes related to 1999 violence, deponents may actually stand to lose because the
without-prejudice principle is restricted to domestic proceedings in either nation but
incriminating evidence could be used in UN Security Council-mandated international tribunal
since the amnesty provision cannot extend beyond the jurisdiction of both nations.
In sum, there seems a disincentive to cooperate fully and an incentive to actively
defend ones self-benefiting version of the truth. Bornemans confession model is
confounded; despite the primary focus on perpetrator confession, neither carrot nor stick
exists to coerce an honest confession or to seek forgiveness.
54
However, it is understandable
why the Alfa Militia member was more forthright in his role as confessor than Indonesian

53
Yudhawiranata, supra, note 24.
54
Borneman, supra, note 33.
15
leaders; the possibility even of a mere recommendation for amnesty
55
would seem attractive
given his 33-year sentence.
56

Regardless of how one interprets the amnesty provision, in July 2007 the UN
announced it would not dignify the CTF by attending. Secretary General Ban Ki Moon
prohibited former UNAMET
57
staff members from testifying, specifically
because UN policy state the Organization cannot endorse or condone amnesties for genocide, crimes
against humanity, war crimes or gross violations of human rights, and must not do anything that could
foster them. Thus, because the CTF can recommend amnesty as such, UN staff have been banned.
58


Parts of the UN have consistently called for an international tribunal to try 1999 perpetrators,
yet nothing concrete has been done to reify those demands. Conversely, the necessary
international political support seems absent in the Security Council, thus there has been no
action on the CAVR and/or Commission of Expert recommendations.
59

Positive Aspects: Acting in the Face of Inaction
With these criticisms in mind, it is important to view them against some of the factors
motivating the CTF. Cohen, a CTF advisor, argues the CTF may actually draw strength from
criticism, pointing out that South Africa's truth commission also resulted in amnesty for many
perpetrators; despite resistance to the idea, the international community eventually accepted

55
The Judicial Systems Monitoring Programme argues any post facto amnesty for those already incarcerated
would violate the Timorese Constitution. The constitutionality has yet to be legally determined. See: The
Constitutionality of the Commission of Truth and Friendship. Justice update Issue 8/2005, Period: 9 18 March
2005
<http://www.jsmp.minihub.org/News/March%202005/18mar05_jsmp_the_eng.htm> (Accessed November 26,
2007)
56
JSMP Press Release March 2005 supra, note 36.
57
United Nations Assistance Mission in East Timor.
58
Secretary-General Says UN Officials Will not Testify at Timor-Leste Commission, as Terms of Reference
Include Possible Amnesty for Human Rights Violations. Department of Public Information Secretary-General,
SG/SM/11101 (26 July 2007)
<http://www.un.org/News/Press/docs/2007/sgsm11101.doc.htm>(Accessed November 8, 2007)
59
Timor-Leste and Indonesia: Between a Rock and a Hard Place Geoffrey Gunn and Andre Vltchek ZNet |
Asia (October 23, 2007) Archived Japan Focus.
<http://www.japanfocus.org/products/details/2549> (Accessed November 22, 2007)
16
the South African Truth Commission and its outcomes.
60
While elements of the UN and
NGOs continue to pressure for justice, the Timorese Chairperson argues
one should not underestimate the good political will of both [countries] to present an alternative way
of seeking justice for the victims, [in] the restorative justice approach experienced already in Chile,
Argentina, Guatemala, South Africa and Timor Leste itself.
61


He notes Timorese leaders remain convinced little support for an ad hoc international tribunal
in the Rwanda/former-Yugoslavia mould exists or will exist.
62
Some misplace their
frustration with the international communitys failure to address the 1999 violence onto the
CTF. It is important to remember that in lieu of an international tribunal to punish those
responsible for 1999, the UN and international community deferred to Indonesia to establish
the KPP-HAM and Ad Hoc Human Rights Court, and established the SPSC with enforcement
jurisdiction expressly limited to Timorese soil despite academic and NGO protestations.
Regardless of the obvious failure
63
of Indonesian proceedings (which some also blame on the
UN for failing to support it
64
) and the current CTF boycott, no serious international political
will exists to establish such a true international tribunal. This may be, as Dionisio Babo
Soares notes, because the international judicial atmosphere provides little room for
undefeated countries like Indonesia to see it citizens tried by an international tribunal; the
likelihood that an undefeated and powerful nation like Indonesia would cooperate with such a
tribunal is questionable.
65
Timorese leaders believe the concrete goal of good relations with
Indonesia is worth more than an international campaign and the pursuit of a principled, yet
uncertain dream of an international tribunal.
66
The inclusion of the amnesty provision

60
Nurbaiti, supra, note 5.
61
Babo Soares, supra, note 10.
62
Ibid.
63
Whether such proceedings were successful specifically as Indonesian transitional justice mechanisms is
beyond the scope of this paper. However, simply conducting the KPP-HAM and Ad Hoc Court processes may
have gone a long way in serving the Indonesian transition from Suharto to democratic rule.
64
Nurbaiti, supra, note 5.
65
Babo Soares, supra, note 10.
66
Ibid.
17
supports this decision; Drumbl notes that while amnesty may be a dirty word in the lexicon
of international criminal lawyers, it may not be so in the lexicon of local population.
67

Amnesties tend to have more appeal and favourable long-term results than international
criminal lawyers care to admit given locally specific circumstances.
68

Practical & Political Considerations
In discussing the CTF approach, the geographic proximity of these two nations remains a
crucial consideration, especially since several issues (e.g. maritime/land boundaries) have yet
to be fully resolved. Accordingly, Timor-Lestes leaders have opted for a practical forgive-
but-not-forget-the-past approach to help their nation rebuild; definitive closure is seen as
necessary to promote and strengthen bilateral ties.
69

As the Timorese Chairperson Dionisio Babo Soares points out, Timor-Leste has its
own practical interests which remain contingent on good relations with Indonesia. For
example: joining the ASEAN regional security/trade group would be impossible without
Indonesian sponsorship; up to 80% of Timor-Lestes imports originate in Indonesia where
goods are significantly cheaper than in other industrial neighbours; many Timorese continue
to live or have relatives in Indonesia as a result of integration and those who chose to stay and
work after 1999 turmoil; approximately 3000 Timorese attend Indonesian universities, while
roughly 3000 Indonesians are in Timor-Leste as foreign workers in the formal and informal
sectors.
70
Since the international political atmosphere militates against the formation of an
international tribunal, securing good relations with Indonesia through the available means
seems in the obvious and best interest of Timor-Leste given these practical concerns
71



67
Drumbl, Mark A, Atrocity, Punishment, and International Law. Cambridge University Press (New York,
2007), p 145.
68
Ibid.
69
Babo Soares, note 10.
70
Ibid.
71
Ibid.
18
J ustice: Subjective versus Objective
As former President Gusmo noted, the justice conceived of in the CAVR report, and which
continues to be demanded by the international community, is rooted in the penal concept and
concurrent goals of retribution, punishment, deterrence, and expressivism.
72
Lao Hamutuk,
supports this position, insisting that reconciliation and friendship could not be based solely on
establishing the truth about atrocities committed, but must also include justice for those
crimes.
73
As JSMP reminds us, crimes committed against humanity are a matter of concern
for the entire international community: they cannot be ignored or disposed of as a matter of
bilateral political expediency.
74
Justice for these NGOs therefore includes not simply truth
and reconciliation, but also penal sanctions.
The view that there can be no peace without justice is not universal, however.
Tallgren goes so far as to call the international prosecutorial approach a hollow promise of
prevention, calling the impact of such justice as illusory.
75
She further notes the maxim
just as often works in reverse. Priority is claimed by stability, thus stability is chosen over
penal justice where the risk of renewed violence exists a notion applicable wherever
similarly important concerns require stability over penal justice.
76
Tallgren further raises the
most fundamental of questions regarding Drumbls international justice goals:
77
can
international criminal law provide closure to large-scale, deep-rooted injustice and suffering?
Can an expectation of finality after a criminal trial establishes the truth by identifying the
guilty, in fact, violently silence other truths and other kinds of responsibilities?
78
These
questions allude to a concept of justice left un-served by prosecution. Timorese leaders

72
Drumbl, , supra, note 55, p 145.
73
Lao Hamutuk Bulletin #6, supra, note 35.
74
JSMP Press Release March 2005, supra, note 36.
75
Immi Tallgren. "The Sensibility and Sense of International Criminal Law." EJIL, Vol. 13, No. 3, (2002) Pp
592-593. (Tallgren)
76
Ibid, pp 592-593.
77
Drumbl, supra, note 55, p 12.
78
Tallgren, supra, Pp 592-593.
19
principally former President Gusmo in his presentation of the CAVR report to Parliament
seem to agree with Tallgren and rejected the penal notion of justice by establishing the
CTF. Gusmo noted it, first, as ineffective in deterring such behaviour in the future
particularly important in the Timorese-Indonesian context given their proximity and second,
rejected that the absence of justice is a fundamental obstacle in the process of building a
democratic society, echoing Tallgrens doubts.
79
Despite a variety of institutional goals that
might be served by penal justice, Gusmo asserted the building of a democratic society is
very much dependent upon the context where we apply this concept and distinguished the
situation; context counts for justice.
80
Instead, Gusmo noted the state could not focus on
managing the past, but instead on development in the present and adaptation for the future.
Rounding out his critique, Gusmo made two salient comments regarding the concept of
justice sought; his state assumes the principle that the revelation of truth is a way of
achieving justice, which, under the current circumstances, is the best approach towards the
development of the country, and supported this by reminding Parliament that reconciliation
has been a long-standing process enabling the People of Timor-Leste to endorse the
principles of tolerance and forgiveness as the true basis for the coexistence of diverging
opinions in society,
81
a view in stark contrast with prosecutorial justice models.
Collectivist Modes of J ustice
82

Drumbl supports Gusmos point, namely that externalizing justice using international
prosecution may be out of synch with indigenous notions of justice. Externalization may
satisfy international arrest warrants and those insistent on a principled approach to
international justice, but it saps potential deterrent, retributive, expressive, and other potential

79
Presidents Final Report of CAVR to National Parliament, supra, note 9.
80
Ibid.
81
Ibid.
82
See Appendices 1 & 2 below for detailed explanations of collectivist modes of justice in Timor-Leste (Lisan)
and Indonesia (Adat).
20
values from a shared, cooperative process of seeking peace and justice.
83
The indigenous
concept of justice Gusmo alludes to represents one of the strongest yet unelaborated to
date aspects of the CTF process.
Indonesias urban centres are industrialized, but like Timor-Leste, the majority of the
country is a rural, village-based society. Rural societies in both nations boast cultural traits
generally referred to as collectivist; that is to say, group harmony takes precedence over the
rights and needs of individuals, as is typical in western individualist societies. These
collectivist traits are manifested in both nations by the rural dwelling majoritys preference for
consensus-based dispute resolution approach over formal penal justice proceedings.
84

The common theme in both traditional systems includes a less confrontational and
more reconciliatory, restorative approach to justice. Penalties for proscribed behaviours
usually take the form of compensation even for serious crimes often in the form of
animals, money, clothes. The point is to restore order and balance to the community and
cosmos, rather than to compensate the victim for wrongs or outright punish perpetrators (in
some instances punishment is meted out).
85

Complaints against formal externalized justice in both nations concern triers of fact
who are unaware of the relationships at stake within a given community and bring 'alien'
standards to bear on sensitive community situations. By contrast, local figures take the time
to provide moral advice, warn other community members against the same wrongs, and

83
Drumbl, supra, note 55, outlined on p 145-146.
84
This section relies on the excellent description of Timorese and Indonesian indigenous cultures found in: Butt,
Simon, David, Natalie, and Laws, Nathan. Looking Forward: Local Dispute Resolution Mechanisms in Timor-
Leste. Australian Legal Resources International: produced for The Asia Foundation in Timor-Leste (1st Ed.
2004)-Copy on file with author) (ALRI Report, 2004); and: Hohe, Tanja and Nixon, Rod. Reconciling Justice
Traditional Law and State Judiciary in East Timor. United States Institute of Peace (January 2003).
<http://www.jsmp.minihub.org/Traditional%20Justice/Reports/ReconcilingJusticeReport.doc> (Accessed
November 23, 2007); and: Mearns, David. Looking Both Ways: Models for Just ice in East Timor. Australian
Legal Resources International (November, 2002).
<http://www.jsmp.minihub.org/Traditional%20Justice/Reports/Mearns%20Looking%20Both%20Ways%20Rep
ort/Mearns%20Looking%20both%20ways.pdf> (Accessed November 23, 2007)
85
ALRI Report, 2004, supra, note 71, pp 9 -10; and pp 73-76.
21
generally weave the social fabric back together.
86
The divide between individualist penal
justice and collectivist restorative justice results in a broad desire to keep disputes local and
in control. This is seen as a less socially disruptive method, which helps to restore and
maintain intra and inter village relations crucial to tight-knit and geographically close
communities bound by relationships of trust and reciprocity. Discord in such a community
could lead to violence and its disintegration.
As Drumbl notes, resolving community disputes externally denies a community the
social cohesion benefits of an internal dispute resolution process a concept manifestly
evident in the CTFs process itself which is explicitly designed to improve relations between
parties, though on the national level. Just as both nations indigenous cultures encourage
internal resolution first, so too does the CTF. This is a natural extension of the traditional
disdain for airing dirty laundry and the need to save face tenets found regionally in nearly
all South East Asian nations, and at the state level in ASEANs Treaty of Amity and
Cooperation,
87
which extols non-interference and internal dispute resolution between
disputants due to the loss of face associated with merely admitting a dispute exists; ASEANs
dispute resolution mechanism remains unused.
Overall, traditional systems here anticipate disputes being settled without outside
recourse, a trait analogous to the CTF and removal to an international tribunal.
88
The CTF
itself seems a macro version of the traditional justice practices in both nations.
Conclusion
The CTF embodies traditional dispute resolution methods and values common to both
nations, with goals of restoration, reconciliation and moving forward, rather than the penal

86
Ibid, pp 9 -10; and pp 73-76.
87
Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976.
<http://www.aseansec.org/1217.htm> (Accessed November 23, 2007)
88
Ibid, pp 9 -10; and pp 73-76.
22
justice goals. This approach flies in the face of a principled approach to international justice.
It also represents a 'claw back' of individual rights enshrined in international human rights
conventions in favour of collectivist values. However, the process will likely result in closer
relations with Indonesia and thereby spur joint development opportunities for both countries.
Perhaps the best defence of the CTFs realist approach to justice comes from Timor-Lestes
Nobel Peace Prize-recipient President Jose Ramos-Horta; in response to criticisms by human
rights groups, Horta replied:
Its great for the human rights activists to be heroic in Geneva and New York where they don't have to
live with the consequences of their heroism. They say we don't care about the victims? We care,
[Gusmo] and I have lost relatives, friends and comrades over the years. We know the cost of war, the
value of peace and the necessity of reconciliation.
89


The final word on the CTF process belongs to the democratically elected governments of its
founding nations, not to unelected justice critics and NGO detractors, particularly if the CTF
means justify the shared realist ends noted above. With the process firmly underway, a
wait-and-see approach is necessary, which may be exactly what course the Security Council
has decided upon before acting on pressure for an international criminal tribunal or not.
Article 25 of the CTF-TOR stipulates the Commissions final report will contain the
Commissions findings and recommendations, focusing on revealing the truth, ensuring the
non-recurrence of similar events, fostering reconciliation and promoting friendship, and is due
some time in early 2008. It must be remembered that the CTF process, whether a success or
failure, presents no bar to the Security Council establishing an international tribunal.


89
Jeff Kingston. Peace or Justice? East Timor's Troubled Road. Japan Focus- Asia Pacific E-Journal
(December 21, 2005)
<http://www.japanfocus.org/products/details/1673> (Accessed November 19, 2007)
23
Appendix 1: Traditional-Local Dispute Resolution Mechanisms in Timor-Leste
90

The people of Timor Leste can utilise local dispute resolution, as a precursor, or as an
alternative, to this formal system. Given the problems with the formal system, it is not
surprising that most Timorese choose local mechanisms for most disputes. What follows is a
generic description of the processes used by many LDRMs, derived from our research. It is
intended as a very general introduction to LDRMs and does not purport to accommodate
regional variation that we understand exists in Timor Leste.

A victim or plaintiff can report an offence or wrongdoing to the sub-village head or his staff.
At least in cases which involve disagreements between parties rather than the commission of a
serious act, the lisan head will usually encourage the parties to resolve the dispute themselves
or attempt to assist the parties to negotiate an informal and immediate resolution. Family
members are strongly encouraged or even expected to settle disputes between themselves
without resort to the village system, often with a bottle of distilled palm wine tua.

If negotiation fails, or if it was inappropriate given the seriousness of the alleged crime or act,
the lisan head then sets a date for a hearing and orders one of his staff (the manu ain literally
chickens foot) which refers to the informant/courier, etc) to inform the parties, their families
and the general community of the date and place of the hearing.

On the date determined by the lisan chief, a mat or a number of mats are rolled out, at the
place where the dispute will be resolved. This is known as unrolling the mat buka tikar
which is used to seat all those who attend. Lisan leaders, the parties, their families and
members of the community, will usually attend to witness the resolution of the dispute. The
lisan head will usually state the procedural rules for the process near the beginning of the
meeting.

These rules vary from place to place, but generally no one is permitted to talk at the same time
as another person. The decision-maker was also required to give both parties time to speak
and to listen to what is said, but it was unclear whether this bears the authority of a procedural
rule, or is just a custom or commonly occurring feature.

Lisan figures lead the questioning of the parties and any witnesses. They will often provide
moral advice and refer to the lisan principles that have allegedly been breached. They will
also often take the opportunity to warn other members of the community to refrain from
committing the same act as the perpetrator(s). Members of the community are often permitted
even encouraged to contribute to discussions which take place during the hearing. In some
cases, representatives from the Government and the church attend and are involved in the
process.

Punishments are then discussed and negotiated. Penalties for a wide variety of crimes are
usually in the form of the provision of animals, money or clothes to the victim or plaintiff,
and their family. Severe penalties can be handed down for serious offences. For example, in

90
Appendix 1 & 2 are excerpts from: ALRI Report, 2004, supra, note 71; reproduced under fair-usage rules,
solely intended to describe collective nature of Indonesian and Timorese traditional dispute processes for
educational purposes; citations removed.
24
one village, a lower-level tribunal attempted to have a person hanged for adultery.
Perpetrators must often pledge to not repeat their wrongdoings and are usually warned that a
heavier punishment will be imposed upon them if they repeat the offence.

[...]

Appendix 2: Local Dispute Resolution Mechanisms in Indonesia

At the village level, a system of voluntary mediation exists under which villagers submit
disputes to some indigenous form of settlement process, often aimed at conciliation.
Consensus is much preferred over the imposition of a judgment, and the level of choice for
venues and actorsvaries in the provinces.

Most commonly and informally, villagers with disputes seek the assistance of religious and
community leaders, including adat figures, police and military officers, and religious figures,
to resolve their disputes. Religious and community leaders in particular, are seen by many to
be the most trustworthy. On a more formal level, there are two village-level institutions
involved in dispute resolution: the village head (kepala desa) and the Village Representative
Board (VRB). Both are elected by villagers. Although the VRB has not begun operations in
all villages, it is hoped that it will be an important dispute resolution mechanism more
effective than its predecessor (the Village Consultative Council) which was inclined to make
rather authoritarian decisions.

These LDRMs, and a number of their features, are, in many parts of Indonesia, the product of
recent laws and endeavours to decentralise government power. In 1979, the New Order
Government had made each village a unit of the Government and imposed the paternalistic
Javanese model of village government on each village. Under this system, village heads
enjoyed a monopoly of power, and were accountable only to their superiors, not their
villagers. Complaints were often resolved through mediation by the village head but this did
not always serve villagers well as the village head had little incentive to solve problems that
did not impact upon his or her own, or state, interests. This structure formally undermined
many of the varying adat village government structures and LDRMs which had been allowed
to exist prior to 1979.

However, district governments now have the power to re-establish their adat structures and
pass district-specific adat-related legislation, allowing and inspiring a revival of adat law and
adat-based LDRMs in some areas of Indonesia.

A[n Asia Foundation in East Timor] survey conducted in 2001 revealed that 86% of
respondents preferred informal, consensus-based resolution of disputes over the formal legal
system. The research of Stephens and the World Bank reports a similar preference. Users of
the systems cited a number of benefits of local informal systems.

[]

a significant proportion of respondents to the TAF survey preferred informal dispute
resolution because they perceived it to be less confrontational than the formal system, and
thought that it maintained community harmony. Villagers and village leaders, it is said,
25
preferred not to involve outsiders in the resolution of their disputes, but rather to take the less
socially disruptive option of local informal resolution. Some villagers believe that
compromise reduces the likelihood of revenge attacks, and leaders preferred the system
because it allowed them to avoid external scrutiny. A number of villagers feared losing
ownership and control over local issues, and were embarrassed (malu) about airing their dirty
laundry outside the village. It was thought that compromise best suited the nature of village
life. According to the World Bank:

Over half of Indonesias population lives in rural villages, whose members live close to one
another, know one another, share resources and depend on one another for a range of daily
activities. Villagers whose lives are so strongly bound by relationships of trust and reciprocity
are thus reluctant to solve many kinds of disputes through litigation or criminal prosecution,
which are by nature adversarial and deliver win/lose outcomes that are seen to be at odds with
the demands of village life.

A number of villagers found the process accessible and familiar to them, and appreciated that
all those with an interest in the outcome were given the opportunity to provide their input.
According to Lev:

A government court, for example, is rarely aware of all the relationships at stake in a local dispute, and
it may bring to bear standards alien to custom. Villages occasionally say that formal courts apply lain
hukum (different law)it refers precisely to the courts natural concern with established substantive
rules, in which a village group may be much less interested in than simply getting rid of a conflict with
minimum social distress. In addition, settlements induced from outside may deny a community
whatever benefit of social cohesion might have accrued from resolving issues internally.the cultural
penchant for compromise of personal conflicts remains strong and it is not at all limited to villagers.

26
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Protesters demand justice as East Timor probe closes. The Taipei Times. Agencies,
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Pro-Jakarta militia leader, Eurico Guterres, begins sentence Financial Times, Jakarta
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Reconciliation in East Timor UNTAET/REG/2001/10 (13 July 2001)
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Secretary-General Says UN Officials Will not Testify at Timor-Leste Commission, as
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Timor-Leste and Indonesia: Between a Rock and a Hard Place Geoffrey Gunn and
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U.N. Shares Blame for Timor Riots, Indonesia Says Reuters News, Telly Nathalia
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