Peacebuilding and Transitional Justice in East Timor 9781626374072

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PEACEBUILDING AND TRANSITIONAL JUSTICE IN EAST TIMOR

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PEACEBUILDING AND TRANSITIONAL JUSTICE IN EAST TIMOR

James DeShaw Rae

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Published in the United States of America in 2009 by FirstForumPress A division of Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.firstforumpress.com and in the United Kingdom by FirstForumPress A division of Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2009 by FirstForumPress. All rights reserved Library of Congress Cataloging-in-Publication Data Rae, James DeShaw, 1971Peacebuilding and transitional justice in East Timor / by James DeShaw Rae. Includes bibliographical references and index. ISBN 978-1-935049-12-8 (hc: alk. paper) 1. Peace-building—East Timor. 2. Transitional justice—East Timor. 3. Human rights—East Timor. 4. United Nations—East Timor. 5. East Timor—Social conditions. I. Title. DS649.6.R34 2009 959.8704—dc22 2009019896 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. This book was produced from digital files prepared by the author using the FirstForumComposer. Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2 1

True hunting’s over No herd to follow Without game, men prey on each other The family weakens by the bites we swallow True leaders gone Of land and people We choose no kin but adopted strangers The family weakens by the lengths we travel —Perry Farrell, Three Days

Contents

ix xi xvii xix

List of Tables and Figures Preface List of Acronyms Map of East Timor

1

Introduction: Peace, Justice, and Reconciliation in Postconflict Societies

1

2

Colonialism, Cold War, and Crimes Against Humanity

37

3

As Good as It Gets? The International Rebuilding Effort

59

4

Justice and Reconciliation: Culture, Courts, and the Commissions

127

Connecting Peacebuilding and Transitional Justice

211

5

233 245

Bibliography Index

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Tables and Figures 1.1 Responses to Crimes Against Humanity

5

1.2 Transitional Justice Mechanisms and Procedures

17

1.3 Legal Remedies to Achieve Justice

21

1.4 Social Remedies to Achieve Reconciliation

24

2.1 Destroyed Buildings in East Timor

53

3.1 UNTAET Mandate

60

3.2 UN Missions in East Timor

61

3.3 Pro-Democracy Murals on the Municipal Stadium

81

3.4 UN Peacekeepers in East Timor

95

3.5 Human Development Indicators (HDI) in Southeast Asia

105

3.6 Pro-Indonesia Statues in East Timor

110

4.1 Postconflict Priorities by Constituency

135

4.2 Possible Transitional Justice Mechanisms in East Timor

144

4.3 CAVR Commissioners at a Public Hearing

149

4.4 In Comparison: The CAVR and SPSC

152

4.5 A View from the Ground: The Tribunal and TRC

166

4.6 CAVR Public Hearing

178

4.7 Nahe Biti Boot Ceremony

179

4.8 Anti–Domestic Violence Pamphlet

189

ix

Preface I arrived in East Timor anxious to observe the performance of the United Nations in one of their most ambitious undertakings: administering the wide-ranging responsibilities of governance after conflict, including unique attempts to build peace, justice, and reconciliation. I optimistically anticipated seeing the implementation of the mission firsthand and interviewing key figures in the UN administration. I did not, however, arrive with an anthropologist’s eye for evaluating the symbols, practices, social norms, and cultural values of human relations in a newly formed, albeit temporary, transnational society. Yet I quickly came to understand that personal and public relationships are an underappreciated aspect of the peacebuilding project in postconflict societies, and I developed a keen awareness of the social landscape that was operating during the rebuilding phase. My first real introduction to this broad international effort was attending a large social gathering at the Asia Foundation compound in the Timorese capital of Dili. In many ways, such evening soirées were as much a part of the international mission as the daily peacekeeping or policing duties, the guidance on civil service bookkeeping, the advice on rice planting, or the instructions on tapping an aquifer. Roughly fifty expatriates discussed global politics and the U.S. “war on terror” over cocktails while the popular Timorese band Cinco do Oriente performed classic rock songs by the Beatles, the Eagles, and Santana. An unmistakable camaraderie developed among the widely diverse international personnel, particularly among the UN civil servants and NGO staff. Not so immediately evident were the vast differences in the disposition and style of the multitude of international workers deployed to East Timor. Around one hundred Timorese sat in chairs or on mats around the perimeter of the dusty courtyard, chatting quietly about work and family and watching the proceedings with slight bewilderment. Another group of about ten Timorese had the linguistic and cultural adaptability to flit between these two worlds, learning the manners and conversational style of the cosmopolitan elite as they became increasingly distanced from the local Timorese preoccupations. I came to realize that the ten Timorese that so quickly adapted to these Western ways represented only a small fraction of the Timorese populace, but that they were nevertheless the best hope for internationals to gain some sense of the local attitudes and indigenous orientation. I also accepted that I, along with the other out-

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siders here to rebuild or research, was always foreign, or malae (pronounced muh-lie).1 Whereas the transmission of outside advice and guidance about implementing a field project can be an important moment of interaction, so too are the regular daily encounters between strangers that contribute to domestic perceptions of the larger international presence. In my experience, the visitors’ tendency to adopt a paternalistic attitude toward the domestic population, or even to outright belittle locals, was all too common. Ordinary encounters reflected a socioeconomic gap, and frequently occurred at the street level: automobile collisions with pedestrians or moto drivers; bartering for taxis, meals, or produce in the market; purchasing the morning bread (pao); the decision to give money to beggars; etc. These unequal encounters reinforced obvious status differences, particularly for the foreigner (malae), who is always regarded as an “other” (and usually charged a higher price). This local/international dichotomy is never absent when “in-country,” where I constantly heard whispers of “malae” from passersby and even young children, and where I was regularly addressed with shouts of “Malae!!!”, “Hey Malae!”, and sometimes the more dignified “Mr. Malae.” Deserved and undeserved stereotypes of diverse ethnic and national styles were prevalent among both internationals and Timorese amid the significant deployments of Africans, Americans, Arabs, East Asians, Europeans, New Zealanders, and Pacific islanders. Occasional tensions and open hostilities were apparent among the various peacekeeping contingents, which included major forces from Australia, Brazil, and Portugal. For instance, personnel from Portugal developed a reputation for rather aggressive flirtations with local women and often a latent colonial arrogance, Australians were notorious for dustups in the makeshift island pubs following a tense football or rugby match, and Brazilians were renowned for their festive atmosphere of samba and conspicuous consumption of the local spirit tua sabu (palm wine). Eruptions of emotions among the differing international contingents could spill over and exacerbate already unspoken resentments among Timorese toward the foreign occupation. These idiosyncratic interactions and reactions became as much a part of my approach as my original purpose, which was to define success according to a neutral, value-free set of criteria that would ultimately fit in comparatively with similar evaluations of other UN peace operations around the world. Looking back on my initial arrival, I had assumed that each international civil servant would diligently and wholeheartedly strive to successfully complete the task at hand and willingly sublimate his or her personal disposition to the greater goal of so-

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cial rehabilitation. I also expected that the local Timorese population would be committed and co-equal partners in this endeavor. These experiences required me to take account of my own potential biases— generally my implicit faith in the applicability of representative institutions and the rule of law as political models—ideas that were transformed by watching their imposition. As a result, I have been forced to rethink my preternaturally American belief that any problem can be solved through steadfast commitment to an effective plan of action. This book reflects critically on the introduction and imposition of foreign ideas, institutions, languages, and personnel (including researchers) into Timorese society with minimal cross-cultural and intercommunity dialogue or input. Not only must an international organization bridge the obvious gap between local and foreigner and incorporate local knowledge and human resources into their “capacity-building” projects, but it also needs to accommodate the dozens of different national styles present in a multilateral peace operation. Moreover, the closure of a mission may curtail what progress has been made, since those newly planted seeds of change have yet to germinate or take root in such unfamiliar soil. In East Timor, the short-term nature of the international involvement raised local expectations of outside commitment before dashing those hopes through a quick exit to the next emergency. I am quite cognizant of the opportunity that I have to publish my findings in academic journals and books and to tell this story in ways that are not available to nearly all of the persons from whom I have gained knowledge. The academic community retains many of the trappings of a modern industry, and for interested students and scholars of war crimes and genocide, people and places may become “academic commodities,” exploited in some manner for career gain. The product, in this case a report on East Timor, has a short shelf life and may get crowded out by newer and higher-profile competitors in the rush to gain market share. Very little anthropological, historical, or political research had been conducted about East Timor until those anxious to do “good” (the aid community, journalists, scholars, and others) descended on this remote locale. This book may be equally guilty of this form of exploitation, though perhaps in a more self-conscious manner. Among my many observations as a researcher and visitor in East Timor, a primary lesson was that humility, friendliness, and sincerity seem to be the only remedy for alleviating the status differences intrinsic to my presence as an outsider. As much as possible, I have adopted an interdisciplinary approach that blends insights from anthropology, economics, history, law, politics, psychology, and sociology to comprehend these unique circumstances. I

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frequently adopt a critical or even polemical outlook toward the rhetoric of human rights activists that facilitates outside intervention; the cultural arrogance, paternalism, and ineffective policies of the practitioners of transitional justice and peacebuilding that often diminish public support; and the sometimes cynical manipulation of accountability mechanisms for the momentary interests of great powers. Thus, I try to understand peacebuilding and transitional justice as political exercises, but also to remember Robert Burns’s old adage that “the best laid plans of mice and men often go astray.”2 Many of the aforementioned pitfalls and risks were alleviated by relying on interpersonal networks of Timorese students developed in Hawai‘i. These special relationships augmented my ability to gain useful insights and valuable information, and I greatly relied upon them to assist, translate, and guide. In such a relatively small society, the connections of these friends and colleagues proved indispensable. I wish to sincerely thank the many people who have offered their time, energy, insights, and support during this research, particularly the various Timorese and international staff who consented to my interviews over the past eight years. My colega, José Manuel Ximenes, gave me much of his valuable time in Dili, East Timor, helping to set up interviews, provide translation, and show me all parts of Timorese life. Nelson de Sousa Carvalho Belo’s assistance was incalculable: he helped to coordinate several interviews, arranged for me to attend numerous trials, and continues to answer many questions relating to Timorese politics. Francisca Maia Gonçalves inspired my passionate interest in Timorese culture and introduced me to a wide variety of customs and practices. Deng Giguiennto took me on my first trip outside Dili, all the way to Baucau, where she introduced me to Bishop Belo, a memorable moment indeed. My several roommates during my field work also greatly assisted in building my network of contacts while taking time to transport me to the tribunal, truth commission, and elsewhere around the country: Jesuina “Nina” Gomes and Amandio de Aráujò, Amy Rothschild, Alison Ryan, and Barbara Oliveira. At the East-West Center in Honolulu, I learned a great deal from all of the Timorese students, and I wish to mention those with whom I discussed specific aspects of Timorese, and sometimes Indonesian, politics, history, and culture: Filipe da Costa, Krispin Fernandes, Matias Gomes, Lucas Serão Lopes, Fidelis Manuel Leite Magalhães, Vera de Oliveira, Lisete Quintao, Carlos dos Reis, Domingos Lequi Siga Maria, Flavia da Silva, João da Silva Sarmento, Ana Paula Sequeira da Cruz Pina, Brigida da Silva, José Manuel Soares Turquel de Jesus, Marcelina Turquel, and Fausto “Nino” Belo Ximenes.

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I must also thank those who have influenced the course of my investigation. Carolyn Stephenson’s strong encouragement to conduct field work in East Timor served as the catalyst for the ultimate completion of my research and helped to transform my outlook. Her supportive suggestions and occasional criticisms challenged me to reach the high standards that she set and greatly helped to improve my manuscript. James Dator’s cheerful counsel and guidance offered a creative and fresh view, and his futures studies approach allowed a rare moment to think anew. Barbara Andaya set an impressive standard of professionalism that I appreciated immensely, and her thorough and constructive comments and ideas advanced the substance and organization of my work significantly. Jon Van Dyke inspired me by his vast knowledge of wideranging areas of legal research and his well-prepared teaching style. I seek to emulate his model and continue to borrow useful writing techniques that he proposed. Charles Morrison’s unique blend of policy and academic fluency helped to center my work; despite his busy schedule, he provided helpful insights and suggestions for new avenues of research that were much appreciated. Belinda Aquino regularly struck to the crux of the research question and helpfully reminded me to think comparatively and avoid unnecessary jargon. Discussions with graduate students, professors, and practitioners along the way (Suzanne Acord, Yoshi Amae, Maigee Chang, John Crist, John Darby, Genevra Garmendia, Eundak “Edward” Kwon, Li Jin Zhao, Pilar Martinez Marin, Neal Milner, Orhon Myadar, Thaddeus Oliver, John Wilson, Melly Wilson, and Jane Yamashiro, in particular) have also helped me to broaden my perspective and navigate the swirling waters of competing intellectual approaches. Proofreading of first drafts by my sounding board and confidante, Wang Xiaodan, immeasurably helped me to clarify the purpose and organization of my writing. Without her unwavering moral support and steadfast companionship, I would never have completed this project, and for that I am truly and forever indebted. The wonderful students that I taught at the University of Hawai‘i often served as unknowing commentators on many of the issues presented in this book and inspired me to pursue teaching and research as a lifelong career. Two students provided personal feedback that is worthy of special recognition: Lunna Abrantes Lopes and Ariel Evaristo Martinez. I must also express gratitude for the support that my family (father Earl, mother Jane, and sisters Nancy, Vicki, and Jodi) has consistently provided, and underscore the substantial influence of my home state, Iowa. I am grateful to the United States Institute of Peace for their very generous support of my research, and I likewise much appreciate the financial

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support of the University of Hawai‘i Arts and Sciences Advisory Council, Political Science Department, and Spark M. Matsunaga Institute for Peace. I thank Sacramento State University’s College of Social Sciences and Interdisciplinary Studies and Government Department for grants that allowed me to conduct field work in East Timor. Lastly, I greatly appreciate Lynne Rienner Publishers for granting me the opportunity to offer my perspective on these processes and Jessica Gribble for so professionally seeing the book through to its final completion. Notes 1. Malae means “foreigner” in the indigenous Tétun language of East Timor. In the Malay language, Timor means “east.” In more recent times, Timor has come to mean the island and “Timur,” the east. Thus, once annexed by Indonesia, the province was called Timor Timur (East Timor). In Tétun Terik, the language spoken historically by those in the center of the island, the country is similarly known as “East East” or Timor Loro’sae (Timor Sunrise) or Timor Leste in Portuguese. West Timor (Timor Loro’muno, literally “Timor Sunset” in Tétun) and its surrounding islands make up the Indonesian administrative province of Nusa Tenggara Timur. Much literature on Timor identifies this language as “Tetum,” though the United Nations has used “Tétun,” the spelling that I have chosen to adopt. 2. The original Old English quote “the best-laid schemes o’ mice an’ men, Gang aft agley” is from Robert Burns’s 1785 poem, To a Mouse, On Turning Her Up in Her Nest with the Plough.

Acronyms ABRI ADB ADF APCET APODETI ASDT ASEAN AUSAID CAVR CNRM CNRT CNRT CPLP CTF ETAN FALINTIL FDTL FOKUPERS FRETILIN HDI ICC ICTR ICTY IDP

Angkatan Bersenjata Republik Indonesia (Indonesian Armed Forces) Asian Development Bank Australian Defence Forces Asia-Pacific Coalition on East Timor Associação Popular Democrática Timorense (Timorese Popular Democratic Association) Associação Social-Democrata Timorense (Timorese Social Democratic Association) Association of Southeast Asian Nations Australian Agency for International Development Comissão de Acolhimento, Verdade, e Reconciliaçao (Commission of Reception, Truth, and Reconciliation) Conselho Nacional de Resistência Maubere (National Council of Maubere Resistance) Conselho Nacional de Resistência Timorense (National Council of Timorese Resistance) Congresso Nacional de Reconstrução de Timor (National Congress for Timorese Reconstruction) Comunidade dos Países de Língua Portuguesa (Community of Portuguese-speaking Countries) Commission for Truth and Friendship East Timor Action Network Forças Armada de Liberaçao Nacional de Timor L’Este (Armed Forces for the National Liberation of East Timor) Forças de Defesa de Timor Leste (East Timor Defense Force) Forum Komunikasi Untuk Perempuan Lorosae (Communication Forum for Timorese Women) Frente Revolucionária de Timor L’Este Independente (Revolutionary Front for an Independent East Timor) Human Development Indicators International Criminal Court International Criminal Tribunal for Rwanda International Criminal Tribunal for Yugoslavia Internally Displaced Person

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xviii Acronyms

IMET IMF IMT IMTFE INTERFET ISF JICA JSMP KPP-HAM KOTA OHCHR OPM PDI PKI PNTL POLRI SCU SPSC SRSG TNI TRC UDT UNAMET UNDP UNHCR UNMISET UNMIT UNOTIL UNTAC UNTAET UNTEA

International Military and Education Training International Monetary Fund International Military Tribunal–Nuremberg International Military Tribunal–Far East International Force East Timor International Stabilisation Force Japan International Cooperation Agency Judicial System Monitoring Programme Komisi Penyelidik Pelanggaran Hak Asasi Manusia (National Commission of Inquiry on Human Rights Violations in East Timor) Klibur Oan Timor Aswain (Association of Timorese Warrior Sons) Office of the United Nations High Commissioner for Human Rights Organisasi Papua Merdeka (Free Papua Movement) Partai Demokrasi Indonesia Partai Komunis Indonesia Polisia Nacional de Timor Leste (National Police of East Timor) Polisi Republik Indonesia (Indonesian National Police) Serious Crimes Unit Special Panels for Serious Crimes Special Representative of the Secretary General Tentara Nasional Indonesia (Indonesian National Army) Truth and Reconciliation Commission União Democrática Timorense (Timorese Democratic Union) United Nations Advanced Mission in East Timor United Nations Development Programme United Nations High Commission for Refugees United Nations Mission in East Timor United Nations Integrated Mission in Timor-Leste United Nations Office in Timor-Leste United Nations Transitional Authority for Cambodia United Nations Transitional Authority for East Timor United Nations Temporary Executive Authority

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1 Introduction: Peace, Justice, and Reconciliation in Postconflict Societies Patients sweat in the stifling heat of a Dili summer day at the Guido Valadares Nacional Hospital, packed four to a small room waiting for medical care that is in short supply.1 The hospital offers triage and a bed, but little in the way of recovery; its care facilities are neither sanitary nor in squalor. Four emergency room (ER) doctors on rotating shifts are overwhelmed, dutifully assisted by a handful of nurses and orderlies. Lacking in resources, technology, and supplies, the ER room has only one electrocardiogram (EKG) machine, little blood, a few syringes, and scarcely any other essential items. The young, female Indonesian doctor is on a one-year appointment and feels extremely dismayed by the conditions. Bloodied victims stagger inside, desperate parents regularly bring in babies suffering from malaria, and the nervous elderly arrive with unidentified tumors or diseases. These were not the victims of 1975 or 1999 nor were these the days of civil war when East Timor was cut off from the outside world and this was not the crisis of famine, forced refugee marches, murderous rampages by local militias such as the Besih Merah Putih (Red and White Iron), or torture by Indonesia’s Special Forces Command (Komando Pasukan Khusus, or Kopassus).2 This was simply an ordinary day during the follow-on United Nations Mission in East Timor (UNMISET) in the summer of 2003. Without air-conditioning or even a fan, an elderly victim of tuberculosis (TB) looks near death, with the only available care-giver the daughter of another patient, who kindly tends to all those in the room as well as her dying father.3 The wife of the TB patient spent the meager family savings for the patriarch to reach the closest thing in East Timor to modern medicine in the blind hopes of a successful treatment. For those willing to trust Western medicine over traditional healing practices, their faith will be sorely tested by the results. In many cases, a patient will go to the hospital for an otherwise routine surgery or a medical emergency, for instance to set a broken bone. Upon returning home, a spiritual healer or family member adept at traditional medicine will attempt to augment the healing process by applying roots or herbs.

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Peacebuilding and Transitional Justice in East Timor

Often, the plaster casts are cut away to allow such application, or simply neglected, fostering a new infection. While the delivery of health care services during UN peacebuilding operations is often a low priority and social services are vastly underfunded in most poor countries, this reflection symbolizes the same challenges when attempting to ‘deliver’ peace, justice, or reconciliation in postconflict societies. Western practitioners arrive following a ‘complex humanitarian emergency’ to help heal the community and prepare the way for a healthy transition back to normal life, with a bit of luck, as painlessly as possible if their tried and true prescriptions are followed. A professional medical technician must have an intuitive feel for the patient, knowing one’s personal background and unique ailments, and be able to speak a common language in order to offer a diagnosis in plain and simple terms. And of course, doctors must abide by the Hippocratic oath: ‘do no harm.’ Yet this Western ‘medicine,’ these outside concepts of justice, may conflict with local practices, using unfamiliar institutions and arcane rules. To improve the chances of ‘recovery,’ practitioners must understand the local population’s traditional customs and their meanings and adopt them when appropriate. Likewise, practitioners must be able to explain their techniques and their purpose, the potential side effects and prognosis for improvement, in order to persuade the target population of the merits of such a risky endeavor. In reality, practitioners will not remain to followup on the progress of the patient; this is a transient approach mindful of costs. Since success cannot rely on short-term solutions to long-term problems, the local population must ultimately be self-reliant and may choose to abide by the moral or spiritual authority of its own cultural roots and remain skeptical of the temporary cure prescribed by Western doctors with their gowns and foreign medicines. In the final analysis, practicing medicine has its own rewards: its goals are to prevent the recurrence of illnesses and save lives; at the same time, such efforts are termed ‘practicing’ for a reason, recovery is far from guaranteed and improvements often result from a trial and error approach, in Timor, perhaps too few trials and too many errors. Peace, Justice, and Reconciliation in Postconflict Societies This chapter begins by reflecting on the overall goals and purpose of this book and defines key concepts. Second, it describes the global expansion of peacebuilding and transitional justice within the context of historical trends in international relations since the end of the Cold War

Introduction 3

favoring a larger role for multilateral organizations and a greater emphasis on humanitarian intervention, international law, and human rights. The intersection between the discourse of universal human rights, the practices of state sovereignty, and the vernacular of local culture is a problematic zone where the practices of peacebuilding and transitional justice are most often tested. For the purpose of this book, I have constructed a matrix to evaluate these trends and consider the possible postconflict responses to crimes against humanity and their philosophical dimensions. Among these choices of revenge, peace, justice, and reconciliation, the latter two form the primary elements of research in this book and the subject of my theoretical framework, which integrates other factors, such as national interests and capabilities, underlying economic motivations, and the cultural limitation of these concepts. This chapter also categorizes the various methods practiced and institutions employed to achieve peace in order to illustrate how the case of East Timor falls within this larger global trend toward accountability for human rights violations. Finally, this chapter elucidates the organization of the book and the structure of its chapters. Overall, the book explores three fundamental values that postconflict societies seek: peace, justice, and reconciliation; and complications posed by other desires, such as revenge, freedom, security, and development. Although not incompatible philosophical concepts, peace, justice, and reconciliation are built on quite distinct intellectual foundations and their definitions are impacted by rather intangible theological and ethical concepts, cultural differences, and psychological emotions. This book considers the practical application of these ideas in East Timor since the initial intervention, the deployment of a peace operation, and the ongoing formulation of transitional justice mechanisms. This investigation operates at three general levels of analysis: international, state and society, and individual, often cataloguing advancement at one level while noting failures at the others. From an international perspective, it identifies global changes supporting transitional justice, UN peacebuilding, and the implementation of human rights norms that promote peace and justice in international affairs. It also examines conditions on the ground in the war-torn society of East Timor and considers the effects of various programs on the lives of individuals themselves, and asks the following three questions: (1) Did the United Nations help to create a peaceful state and society? (2) Did transitional justice satisfy demands for accountability, justice, and/or reconciliation? (3) Which specific aspects or model of peacebuilding and transitional justice can best achieve these goals?

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Peacebuilding and Transitional Justice in East Timor

Although simple questions, the complexity of the answers makes success hard to define: Is a long-term sustainable peace the proper criterion or is a stable peace upon the departure of the peacebuilders sufficient? Is accountability achieved simply through the recognition afforded by transitional justice mechanisms or must justice and reconciliation have reached a higher threshold (prosecuting all indicted suspects or providing reparations to victims, for instance)? Is part of a successful transition formulating one’s own institutions or must outside practitioners guide the process? Any contemporary research project cannot wholly evaluate the implementation of peacebuilding and transitional justice due to its long-term nature. Incomplete evidence and the absence of common definitions confine one’s ability to fairly answer questions regarding whether long-term versus short-term or domestic versus international mechanisms work best. Uncertainty often prevails with unsettled refugee populations, un-rehabilitated detainees and excombatants, small arms proliferation, limited (yet repressive) state security apparatuses, poorly developed civil society, weak structures of governance, and fleeting international interest. These concerns will be addressed throughout this book, recognizing that solutions in one context may be inappropriate in another. A Postconflict Transition Model: Four Responses to Crimes Against Humanity

Development, equality, freedom, justice, order, peace, reconciliation, and security are principles often rhetorically touted as the aspirations of any nation-state. A central dilemma of state-building is balancing these ideals, and achieving progress in each area; however, these ideas frequently conflict with each other when put into practice and the lines between them are often blurred, for instance where freedom ends and security begins. Peace, justice, and reconciliation are older, intangible theological and philosophical concepts of ethics and morality that are strongly impacted by cultural differences, abstract feelings, and competing definitions.4 Vengeance alone may satisfy short-term desires for revenge, but such a decision clearly contributes to hatred and fear, and resuscitates an ongoing cycle of violence. Peace may allow the community an opportunity to forget or suppress awful memories and society to reclaim stability and order, but at the price of impunity for perpetrators who may continue to intimidate others by their freedom. Justice can lead to individual accountability, lessen the need to resort to violence to settle disputes, and provide an integral step toward reconciliation. Reconciliation itself provides an opening to reconstruct

Introduction 5

relationships and social harmony, underwrite a truly positive peace, and prevent the recurrence of violence. The pathway toward peace, the journey toward justice, and the road toward reconciliation remain difficult to navigate; whichever route is chosen requires a careful cartographer and a willingness to ask local residents for the best directions. Among these priorities in postconflict societies, Figure 1.1 illustrates four distinct approaches to crimes against humanity in order to clarify the overall theoretical and policy choices. Figure 1.1

Responses to Crimes Against Humanity

RESPONSES

Goal

Revenge

Peace

Justice

Reconciliation

Retribution

Restoration

Motive

Vengeance

Stability

Method

Violence

Amnesty

Judgment

Atonement

Legal Remedies

Hearings & Dialogue

Form

People’s Justice

Diplomacy

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Peacebuilding and Transitional Justice in East Timor

Although the use of force may be employed to achieve peace, revenge, or justice, the model is designed to suggest that peace defined as order is not a form of accountability, and in fact can be equated with impunity. Justice and reconciliation, more so even than peace, require appropriate institutions, profound political will, and usually an impartial third-party to facilitate their actualization. While revenge is certainly a form of accountability, this book emphasizes justice and reconciliation as positive components of a potential transitional justice regime. Therefore, justice and reconciliation would be the preferred choice of those who seek accountability through non-violent means. Literature on the relationship between these choices is discussed in the context of this matrix. Revenge

Revenge has been a common means to achieve accountability for past abuses or atrocities, following the notion of lex talionis (the law of retaliation, or ‘an eye for an eye, a tooth for a tooth, an arm for an arm, a life for a life’). Sometimes in moments of mob rule, the raw fury of victimization can result in violent acts of retribution to equalize the sense of suffering and outrage. In the absence of an accepted transitional justice or peace process, revenge attacks may be seen as the only option for the actors involved. The potential for individual or collective acts of reprisal and the threat of renewed civil violence to achieve justice of a different sort always lurks below the surface in postconflict societies. Emotional score settling occurred when Benito Mussolini’s fascist regime fell in Italy, and his body became a receptacle for social outrage in just such a horrific display of human vengeance. Even former patrons became disturbed by rebel leader Jonas Savimbi’s notorious reign of brutality, before the Angolan government killed him in an ambush. In other instances, this form of ‘people’s justice’ can be more measured and deliberate, such as the videotaped executions of the Ceauşescus in Romania by firing squad after the fall of communism, the Shiat Ali insults and taunting of Saddam Hussein on the gallows, or the village trial and house arrest of Pol Pot in Cambodia and his eventual death (whether at the hands of his own disaffected guerrillas or of natural causes). Rarely is vengeance capable of being so directly targeted against a single individual; indiscriminate communal riots are usually the result of tit-for-tat killings that fuel the cycle of violence which characterizes so many intractable conflicts. Of course, sometimes such contests determine a clear victor that establishes a new order.

Introduction 7

Peace

Peace has been a steadfast goal during and after prolonged strife to avoid bloodshed altogether. Various cultures have developed rituals or agreements that avoid intragroup warfare by offering up another group member to ‘make things right.’ Customarily, diplomacy sought to preserve a stable international order and avoid disruptive interstate wars that could harm global trade and commerce or threaten the interests of powerful actors. Despite the precedents of Nuremberg and Tokyo, heads of state in general continued to enjoy sovereign immunity under international law. Thus, domestic policies were generally off limits, unless they threatened the very peace upon which the international system was based. Internally, political leaders often tried to co-opt opposition forces through amnesties or incentives to maintain their own power and authority. In circumstances that threaten international stability or challenge powerful interests, the practice of statecraft may adopt bargaining techniques or even use limited force to remove despots that systematically violate human rights, only to provide safe haven later in many cases. Pressure by the United States on Ferdinand Marcos in the Philippines led him to resign his presidency in 1986, comfortably stealing away with sizeable assets to Hawai‘i. Coercive diplomacy by the United States in Haiti in 1994 gained the departure of General Raoul Cédras, who retired to a beachside villa in Panama.5 Occasionally, outright force may be used to oust a tyrant. For example, in the 1970s, Colonel Idi Amin’s attempt to exterminate several indigenous groups and ethnically cleanse (mostly Indian) Asians from Uganda symbolized the impunity of notorious dictators around the world. President Julius Nyerere of Tanzania’s intervention ultimately restored peace and stability, though Amin was allowed to comfortably spend the next 25 years of exile in Saudi Arabia.6 Aside from Tanzania’s military role, little international action was taken before, during, or after nearly two decades of carnage.7 Thus, while Amin was world famous, his crimes unequivocal, and his whereabouts known, no substantive effort at indictment, let alone apprehension, was performed. Even in postconflict situations, an occupying power may uphold the status of a known war criminal to lessen the degree of affront and retain a modicum of cultural continuity as a tactical decision to gain public acquiescence, such as with U.S. General Douglas MacArthur’s decision to allow Emperor Hirohito a figurehead status in Japan after World War II. Peace can be defined negatively as the absence of war, or one can take a broader and more comprehensive definition based on Johan

8

Peacebuilding and Transitional Justice in East Timor

Galtung’s all-encompassing notion of positive peace that includes areas such as socioeconomic development and social justice.8 This perspective ranges far beyond the negative peace of ending overt political violence and establishing a modicum of basic security; however, such a formulation is generally unrealistic and unattainable in the immediate postconflict environment, if at all. In this book, I generally adopt a negative peace perspective, akin to order, as a baseline to evaluate success; as well as to differentiate the concept from other terms explored in further detail, such as justice and reconciliation. Justice

Ideas of ethics and justice animate liberal desires to construct a legal regime within an international system of anarchy and self-interest that encourages and facilitates cooperation between actors in international relations specifically related to mass atrocities.9 Proponents of justice, defined as individual accountability for criminal offenses, suggest that the accused must face legal instruments that will deter future human rights violations, lessen the roots of vengeance, and demonstrate that those with powerful connections are not above the law. From the viewpoint of human rights lawyers and international law, justice represents a vital step in the transition from the nation-state based form of sovereign immunity toward promoting the individual as a primary actor in public international law. For many activists and victims, justice represents a normative framework that highlights fairness and accountability as key human values, thus helping to provide grounding to the notion ‘never again.’ Broadly speaking, liberals argue that trials facilitate international peace by purging hostile leaders, deterring war criminals, rehabilitating former enemy countries, blaming individuals and not whole ethnic groups, and establishing truth about war-time atrocities.10 From The Hague Conventions to regulate the conduct of war in 1899 to the Rome Statute for the International Criminal Court (ICC) in 1998, significant progress toward making the individual a subject of public international law and protecting such persons during conflict has occurred despite the convulsive nature of the bloody twentieth century. In fact, the last 60 years have witnessed an attempt to both make individuals responsible for their actions in war, and to protect individuals from the dangers that prevail during times of war. Aside from a brief interregnum punctuated by international trials following World War II, the world chose to ignore massive atrocities and even genocide, as the ambitious project of war crimes accountability and

Introduction 9

transitional justice lay dormant, in need of a catalyst.11 This endeavor resurfaced in the 1990s, evidenced by the ad hoc International Criminal Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR), the creation of the ICC, the formulation of hybrid tribunals in Bosnia, Cambodia, East Timor, Kosovo, and Sierra Leone, and a greater reliance on domestic procedures and various legal judgments for trying human rights abusers.12 The push to make former heads of state account for their atrocities, such as Chilean dictator General Augusto Pinochet, Yugoslavian President Slobodan Milošević, Liberian President Charles Taylor, and Rwandan Prime Minister Jean Kambanda is illustrative of this transformation. Justice is a difficult concept to define. Ancient philosophers from Aristotle and Confucius to modern thinkers like John Rawls have struggled with the idea. Indeed, all societies wrestle with the nature of justice, formulating it as revenge, fairness, equity, harmony, legal accountability, customary obligations, or many other possibilities. International tribunals are built on a retributive formula that allows the state (or states) to satisfy victims’ desires for revenge, but within an agreed-upon system of rules and procedures that ultimately produces a historical record of past abuse for a domestic constituency. As a pedagogical tool, tribunals highlight a notorious moment in world history and thus may expose important actors and war criminals to international scrutiny. Yet justice is rarely defined in its idiosyncratic context whereby members of a particular community offer meanings based on their specific socio-cultural environment. In the UN report on “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,” UN Secretary-General Kofi Annan defined justice as “an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.”13 In this book, justice is a formal process of accountability generally through court trials presided over by legitimate and competent authorities that identifies primarily personal responsibility in order to equitably redress grievances arising from legally proscribed individual crimes and administers officially regulated punishments. Reconciliation

Reconciliation seeks to rebuild inter-group relations and foster a mutually acceptable societal harmony that reintegrates former combatants, heals wounds, and achieves restorative justice. Various alternative dispute resolution techniques such as mediation, negotiation, and facilitation avoid the often rigidly formal, adversarial courtroom

10

Peacebuilding and Transitional Justice in East Timor

trial that results in black and white decisions of guilt or innocence, winners and losers. Instead, truth and reconciliation commissions (TRCs) afford another process to address war crimes and grave human rights abuses without legal sanction, hoping to restore former relationships and rehabilitate society with an eye toward the future and frequently incorporating religious and cultural customs into the proceedings.14 The 1995 South Africa Truth and Reconciliation Commission explained the trade-off as Reconciliation involves a form of restorative justice which does not seek revenge, nor does it seek impunity. In restoring the perpetrator to society, a milieu needs to emerge within which he or she may contribute to the building of democracy, a culture of human rights and political stability. The full disclosure of truth and an understanding of why violations took place encourage forgiveness. Equally important is the readiness to accept responsibility for past human rights violations.15

Efforts to document collective responsibility and ease the transition to democracy have been furthered by numerous truth and reconciliation commissions designed to investigate atrocities and uncover the hidden facts that inhibit social harmony. The mandate of each commission incorporates the broad historical context to construct a more accurate account of the conflict than had previously existed if only relying on versions and narratives of the more powerful. In some ways, these procedures follow on the denazification programs in Germany, though not in conjunction with war crimes tribunals as they were at Nuremberg.16 Occasionally, commissions of inquiry or truth commissions take a wholly national function to examine domestic abuses of a previous regime; however, like the hybrid tribunal, most truth and reconciliation commissions lie in the zone between domestic and international. Truth and reconciliation commissions either adapt lessons learned from previous cases elsewhere (usually South Africa’s truth and reconciliation commission), incorporate advisers from other countries or NGOs, or explicitly consider events that have clear linkages across a single nation’s borders. These reconciliation processes are increasingly globalized, informed by scholars and practitioners from a multitude of regions and borrowing best practices from numerous experiences around the world. Other commissions in Chile, El Salvador, Ghana, Guatemala, Peru, and elsewhere provide examples of alternative methods to achieve national reconciliation that avoid the retribution so endemic to strife-torn countries.

Introduction 11

Claims of reconciliation are sometimes based upon a single, reluctant act of contrition or the savvy rhetoric of a hollow non-apology (‘I am sorry if you were offended’). National leaders misuse the concept as a synonym for newfound stability; others begrudgingly accept it as the status quo ante. Judging the sincerity of an apology or the authenticity of true and heart-felt remorse is nearly impossible, yet the standard here is set as a truly unique, and rare, restorative moment. Reconciliation may encompass a multi-step process of tangible events such as refugee return, the demobilization of combatants, and public hearings, as well as the successful non-violent reintegration of all members into society and their acceptance by the victimized community. Just as justice is conceived here as an ideal type separate from peace, reconciliation represents a profound decision by victims and perpetrators to re-establish and rebuild social relations. In this book, reconciliation is a formal or informal process that achieves a lasting personal or social transformation and harmonizes or restores interpersonal or collective relationships based on an ethic of atonement, forgiveness, and healing for offenses committed by an individual or group actor. Peacebuilding

After its founding in 1945, the United Nations developed new and innovative means to preserve international peace and security. First named by Canadian Secretary of State for External Affairs Lester Pearson, peacekeeping is one such method not formally mentioned in the UN Charter. Lying somewhere between Chapter VI (pacific settlement of disputes) and Chapter VII (coercive methods including the use of force), peacekeeping arose from the desire of certain great powers to maintain international peace and stability and to use collective security to avoid interstate warfare alongside the growth of humanitarian concerns and has been transformed over more than half a century of practice.17 Although the frequency of peacekeeping greatly expanded after the first UN peacekeeping mission (the United Nations Truce Supervision Organization, UNTSO) was deployed to stabilize the IsraelPalestine conflict in 1948, it always remained influenced by choices made immediately after World War II to grant the United Nations the legitimacy and capability to conduct various types of interventions and peace operations.18 Adopting a limited mandate, the three foundational principles of traditional peacekeeping sought consent, impartiality, and minimum use of force, and peacekeepers observed and reported with the full agreement of all parties.19 Traditionally, peacekeepers arrived

12

Peacebuilding and Transitional Justice in East Timor

following a cease-fire, after gaining permission from host countries for deployment, to provide an interposition between protagonists, with lightly armed troops usually supplied by smaller or middle powers. UN peacekeeping remained centered on separating combatants and maintaining cease-fires to achieve stability, commonly to maintain the status quo, not to engage in comprehensive operations to build peace. Peacekeeping avoided infringement on state sovereignty, usually operated in realms outside the major Cold War hotspots, and was conducted by impartial countries with a neutral force commander and avoided troops from the Soviet Union, United States, or other major powers. The peacekeeping mandate was often to maintain law and order, remain neutral, and only occasionally to engage in humanitarian activities.20 The end of the Cold War and the breakup of the Soviet Union thrust the United Nations into an expanded peacekeeping role across the globe and soon stimulated a renewed attempt to build (and rebuild) the institutions necessary to try war criminals and deter war, and served as a catalyst to allow the formerly muted voices of transnational non-state actors (NGOs, media, activists, diasporas, and exiles) to be heard and neoliberal values and norms favoring human rights, international law, and multilateralism to ripen. Lobbying by human rights activists and NGOs and a sympathetic media and its resonant imagery formed a constituency in numerous countries interested in ending oppressive state behavior. Only 13 peacekeeping operations took place prior to 1988; however, post-Cold War ethnic conflicts in the former communist bloc and renewed violence in previous hotspots provided an endless array of locations in need of peacemaking and twenty new peacekeeping missions were instituted from 1988-1993. By the early 1990s, increased collaboration among the permanent UN Security Council members resulted in the deployment of several multidimensional peacebuilding operations, such as the United Nations Transition Assistance Group (UNTAG) to Namibia in 1989, the United Nations Observer Mission in El Salvador (ONUSAL) in 1991, and the United Nations Transitional Authority for Cambodia (UNTAC) the same year. In these cases, the United Nations took over a broad range of administrative functions in ‘failed’ states and nations emerging from civil war, as peacebuilding mandates encompassed greater responsibilities, including socioeconomic development, security, governance, human rights, refugee return, and rebuilding infrastructure. Other significant efforts by the United Nations to hold elections or otherwise rebuild states have taken place in Angola, Bosnia and Herçegovina, East Timor, Guatemala, Kosovo, Mozambique, and Nicaragua.

Introduction 13

Meanwhile, humanitarian interventions to feed starving Somalis in 1991, to restore democracy to Haiti in 1994, and to stop ethnic cleansing in Bosnia (1994) and Kosovo (1999) signaled a new willingness to curtail human rights abuses and puncture the protections afforded by sovereign prerogatives. These interventions were not limited to actions taken by the remaining superpower; in 1999, the multinational, UNendorsed and Australian-led International Force East Timor (INTERFET) intervened to protect the rights of an indigenous community’s claim to national self-determination, and in 2003 alone, the United Kingdom deployed troops to Sierra Leone, France to the Ivory Coast, and Australia to the Solomon Islands. Former UN Secretary-General Kofi Annan specifically cited the mission to East Timor in outlining a more active UN role in his 1999 “Two Concepts of Sovereignty” essay in support of humanitarian interventions.21 These ‘humanitarian’ interventions sometimes resulted from the ‘CNN Effect,’ as media moments captured the world’s imagination;22 just as easily, gruesome displays of unexpected casualties caused fickle publics and wavering politicians to demand the quick withdrawal of forces. Despite failures in Bosnia, Haiti, Rwanda, and Somalia in the mid-1990s, a more expansive transitional administrative authority for the United Nations developed in 1999 for East Timor and Kosovo, each a province that required a humanitarian intervention to wrest control from a larger nation-state on a pathway to independence and straddled the line between protecting human rights and observing national sovereignty, and ultimately promoting national self-determination. These newer missions granted the United Nations temporary sovereignty over civil administration, the justice system, police forces, and other competencies in former provinces of UN member states; essentially to build states from scratch. Although enormous intrastate violence continues to plague the world, multidimensional peacebuilding operations remain relatively rare, though missions have been formed across Africa, Asia, Europe, and Latin America. Former UN Secretary-General Boutros Boutros-Ghali provided a useful taxonomy for the host of UN peace operations deployed in the 1990s in his landmark Agenda for Peace: pre-conflict preventive diplomacy, peacemaking (negotiation, mediation, sanctions, and peace enforcement), peacekeeping, and postconflict peacebuilding.23 Agenda for Peace defined preventive diplomacy as “action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur.”24 Some see peacebuilding as an ongoing process that may be initiated at any moment, including before and after conflict. In 1998, the

14

Peacebuilding and Transitional Justice in East Timor

Carnegie Commission’s report on Preventing Deadly Conflict used structural prevention as a synonym for peace building and argued that any model must include security, well-being, and justice.25 To measure and achieve the prevention of violent conflict is an exceedingly difficult enterprise, and preventive action has largely fallen from the agenda of the international community. Although all nations are in need of the holistic social rehabilitation and economic reconstruction that is essential in reducing the likelihood of violent conflict (perhaps to include an equal distribution of wealth, sustainable development, social harmony, and respect for human rights), such costs and the commensurate political will is beyond the scope and resources of any international organization, wealthy nation-state, or even coalition of states. Peacemaking was “action to bring hostile parties to agreement, essentially through peaceful means as those foreseen in Chapter VI of the Charter.”26 Although Agenda for Peace included the use of military force and peace-enforcement units, peacemaking normally refers to negotiations, mediations, arbitrations, and similar dispute resolution techniques that bind parties to a mutually accepted agreement. Peacekeeping was “the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/or police personnel and frequently civilians.”27 Although peacekeepers were usually deployed following the peacemaking stage to keep a peace already established, in contemporary peace operations, ‘blue helmets’ are often mandated to enforce a tenuous peace and sometimes placed in direct hostilities. In East Timor, following intense diplomatic pressure on Indonesia, INTERFET was deployed to establish a peace amid chaos, and later these soldiers and new arrivals were transformed into a peacekeeping force to maintain security during the peacebuilding operation. Peacebuilding is designed to rebuild or ‘stabilize’ states destroyed by civil war or reconstruct ‘failed’ states and is based on the notion that domestic instability could harm peace in the international system. International legitimacy is generally bestowed on multilateral or UN operations, though deployment, with its component agencies and linked organizations, requires the collaboration and integration of states (and their military forces), international organizations, and NGOs.28 Peacebuilding was originally conceived as relevant to the postconflict context, later expanded to include actions across the spectrum of peace operations described above, and has generally returned to its initial formulation: to be employed after the cessation of hostilities to prevent a return to the recent violence and underwrite the fragile peace that is

Introduction 15

slowly being constructed. Boutros-Ghali’s Agenda for Peace report defined postconflict peacebuilding as “action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict.”29 A case study of East Timor may be seen in light of these transformations. Many analysts suggest a transition from one generation to a second generation of peacekeeping and peace enforcement, exemplified in the Central American cases of the late 1980s and 1990s.30 For Oliver Richmond, first generation peacekeeping embodied consent, impartiality, and neutrality, the second generation tackled the root causes of conflict, and the third generation promoted intervention over consent.31 Generations may be a misnomer as various peace operations, from observer missions to traditional peacekeeping to humanitarian interventions, continue to operate. The passing of a generation does not mean the end of its usefulness. Thus, recognizing how peace operations have expanded in scope over time, resulting in more appropriate operations tailored to given circumstances, may be more useful. Since the end of the Cold War, demarcations between peacekeeping and peace enforcement have become blurred and multidimensional operations that focus more on election and statebuilding and less on enforcement have grown. In this book, peacebuilding missions are the multidimensional operations mandated by an outside actor, usually the United Nations, to end political violence and build peace in a postconflict context. The mission in East Timor is illustrative of these new multidimensional peace operations that are qualitatively different from previous peacekeeping operations that strictly enforced armistices and separated combatants. The comprehensive and integrated program of peacebuilding includes aspects of nation-building that move beyond maintaining cease-fires or providing a military buffer to look at the relationship among all segments of society, and may include: • • • • • • • • •

the supervision of cease-fire agreements; destruction of weapons surrendered in disarmament exercises; designing and implementation of demining programs; demobilization of armed forces; reintegration of former combatants into civilian life; support for socioeconomic rehabilitation and reconstruction; provision of humanitarian assistance; facilitating the return of refugees and displaced persons; holding elections;

16

Peacebuilding and Transitional Justice in East Timor

• • • • • •

support for implementation of constitutional, judicial, and electoral reforms; building a functioning judiciary and instilling the rule of law; fostering and monitoring respect for human rights; training new police forces; training lawyers and judges; and challenging hierarchical gender relations.

UN peacebuilding is evaluated according to its effectiveness at reaching a minimal negative peace and at fulfilling the mandate for a broad multidimensional peace. The book will interpret outward signs of peace and stability such as the end of civil war, the prevention of renewed violence, and a lack of extrajudicial killings. It will also evaluate whether peacebuilding reached the root causes of violence: poverty, lack of education, nationalism, centralized bureaucratic regimes that do not respect human rights, and politicized security forces used to intimidate and harass the population. Literature on peacebuilding rarely considers the role of nationalism in solidifying or harming peace, the applicability of these institutions in non-Western settings, the proper relationship between state and civil society in a democratic transition, and the possible underlying interests of powerful outside actors beyond ‘peace’ and ‘justice.’32 Outside forces have shaped and continue to impact the broad relationship between state and civil society, as structural influences conditioned the choices and responses of domestic actors. Modern, industrialized democracies in the West owe their legitimacy to an imagined social contract in a mythical ‘state of nature’ whereby citizens grant the state authority and control over the use of force in return for the protection of certain basic rights. Countries are evaluated based upon their respect for free and fair elections, representative government, protection of basic human rights, and promotion of the rule of law. Owing to the influence of these Western concepts, developing nations are commonly judged by the same standards, though few have matched the expectations of Western observers. Transitional Justice

The resurgence of identity conflicts and the concomitant vagaries of ethnic cleansing and genocide reawakened the ghosts of Nuremberg in the 1990s. The use of tribunals, truth commissions, and domestic courts to prosecute or shame international actors helped to give substance to

Introduction 17

the notion of international justice and accountability. The formation of these international bodies and the weight of international public opinion now influence the practice of nation-states, discouraging foreign funding and aid to perpetrators and potentially deterring tyrants from committing such atrocities. Symbolically, these institutions offer a clear and visible statement by the international community that crimes against humanity are serious and grave and that sovereignty may not provide total insulation from international accountability. Figure 1.2 depicts the variety of transitional mechanisms and procedures now available to promote international justice and reconciliation, demonstrating a significant expansion of options since the end of the Cold War. Figure 1.2

Transitional Justice Mechanisms and Procedures

Mechanisms

Post-WWII (1945-1949)

Cold War (1949-1991)

Post-Cold War (1991-now)

International Criminal Court

None

None

Formed

Ad Hoc International Tribunals

Germany/IMT Japan/IMTFE

None

ICTY ICTR

Hybrid Tribunals

None

None

East Timor Sierra Leone Cambodia

Foreign Courts (universal jurisdiction)

None

Eichmann/ Israel

Pinochet/Spain Karadžić /US

Truth & Reconciliation None Commissions

None

South Africa Latin America

Tribunal & TRC in Tandem

None

East Timor Sierra Leone

None

A primary trade-off in this dilemma is between peace and justice: Do trials promote justice and human rights or undo a tenuous peace? Many argue that to achieve peace, defined as the absence of war or overt political violence, the populace should ignore or forget the past, accept the reality of ongoing hostility and recrimination, and not foment antagonisms through public trials or investigations. Thus, transitional justice is commonly avoided in favor of the status quo, with immunity used as bargaining tools to gain the departure of notorious characters for

18

Peacebuilding and Transitional Justice in East Timor

long-term stability or social improvement. Part of the interplay among peace negotiations, accountability, and nation-building has been amnesty for political leaders. As Carla Hesse and Robert Post state, ‘Punishment and amnesty stand as alternative paths to what should constitute an ultimate goal, which is the transition to a democratic state that governs through law and that thereby safeguards human rights.’33 Some assert that tribunals exacerbate a tenuous situation and can destroy a fragile peace in a nation attempting to achieve some degree of harmony or reconciliation. The threat of trials may reduce the incentive for political elites to voluntarily withdraw from power; thus, amnesties can help to create a legitimate legal system by facilitating reconciliation, just as arrests could harm fragile peace accords. Leaders are desperate to maintain their grip on power and justice may be a strong enough disincentive to prolong the agony and disorder of civil war. Individual amnesties for middle and lower level perpetrators based on petition are one method to approach ‘truth,’ and some degree of reconciliation. When former leaders acquiesce, it is usually due to a credible coercive threat; U.S. pressure on former ally Ferdinand Marcos in the Philippines in 1986, Tanzania’s invasion of Uganda in 1978, or U.S. fighter planes in the Caribbean sky toward Haiti in 1994 are historical examples. However, if the political will has been mustered for coercion or intervention, the need to offer the incentive of a residence in Hawai‘i, Saudi Arabia, or Panama may be unnecessary; in these cases, no quarter need be granted to despots. “Realists” in the field of international relations argue that international law is impotent in world politics and that ‘peacebuilding’ and ‘transitional justice’ are ill conceived and misguided idealism that do little to deter or end violence and war. From such a realpolitik perspective, war is policy by other means and its conduct far removed from moral considerations, with only hegemonic stability or the balance of power appropriate methods to mitigate war.34 Here, war crimes trials either ignore national interests and power politics or are merely the punishment or revenge meted out by the stronger power.35 Critics of the World War II tribunals level the following charges: there was no precedent and ex post facto legislation was illegal; it was victors’ justice and some killings during belligerency are normal incidents of war; the functions of lawmakers, prosecutors, judges, and jury were not separated; war was a national act and therefore individual responsibility should not apply under the Act of State doctrine.36 The inequity of an atrocities regime is clearly comprehensible through an examination of the global power structure, which demonstrates the absence of universal justice when powerful states are immune from legal punishment.

Introduction 19

The balance between justice and reconciliation is a second challenge, as the intersection between tribunals and truth commissions creates a host of troublesome value judgments. Much of the academic debate on transitional justice delineates between retributive justice (i.e. punishment) and restorative justice, a conceptualization closely related to reconciliation. Does a truth and reconciliation commission provide societal healing or fail to satisfy victims’ demands and allow impunity without a simultaneous trial process? Hesse and Post explain the numerous dichotomies as personal rights versus the greater public good, punishment versus forgiveness, the present versus the future, international norms versus national cultures, and universal ideals versus particular circumstances.37 Using this binary framework, one might argue that tribunals represent the more individualist orientation of the West with an emphasis on civil rights, while truth and reconciliation commissions suggest a more collective enterprise whereby social and cultural rights are promoted to achieve group harmony and solidarity. Yet a truth commission may create false expectations, provide contradictory findings, ‘contaminate’ evidence, produce a less accurate ‘truth’ than trials, use scarce resources, endanger confidentiality, and create differing expectations of political versus criminal responsibility.38 Ironically, some within the human rights community consider war crimes trials to be a heavy-handed approach to human rights violations where a more benevolent truth commission could offer reconciliation between former combatants. For many, especially victims themselves, reconciliation commissions provide no justice and the process fails to satisfy the need for equitable punishment or even vengeance. Those threatened with accountability usually see truth and reconciliation commissions as a rather unobtrusive method to avoid serious legal sanction rather than an instrument of restorative justice, choosing to cooperate with the truth commission while ignoring the tribunal. As a result, the option of a truth commission is less inflammatory and often more amenable to both sides in a conflict, encouraging war criminals themselves to testify truthfully and reducing great power obstructionism. In fact, commissions have operated far more commonly than international tribunals, reflecting the softer punishment that they deliver. In South Africa, the reconciliation option was adapted instead of retributive trials, granting amnesty to those that testified truthfully during its two years of operation. Since truth and reconciliation commissions evolved alongside the war crimes tribunal, proponents suggest that commissions offer a restorative justice substitute for, or complement to, the punitive or retributive justice practiced through courts of law. In this sense, a

20

Peacebuilding and Transitional Justice in East Timor

division of labor could be established, perhaps with TRCs used to gather evidence for a criminal trial and thereby integrated into a comprehensive war crimes regime. Developing tribunals and truth commissions jointly in East Timor and Sierra Leone suggests a new comprehensive approach, and this tandem model could be an avenue to transcend these divergent goals. Institutions of Transitional Justice: The Options

The last 60 years have witnessed an attempt both to make individuals responsible for their actions in war and to protect individuals from the dangers that prevail during times of war. The architecture of a war crimes regime lies in the norms, principles, rules, and decision-making procedures established by the United Nations, the International Military Tribunal at Nuremberg (IMT), the International Military Tribunal for the Far East (IMTFE), the 1948 Convention on the Prevention and Punishment of Genocide, and the 1949 Geneva Conventions and their Protocols; the two tribunals demonstrate the practical consequences of committing war crimes. Genocide, crimes against humanity, and war crimes are now proscribed in the conduct of war and during peace time, and a triumvirate of stipulations known as the Nuremberg Principles (individual criminal responsibility, no head of state immunity, and superior orders are not an excuse) have placed the individual at the center of sanction and penalty in international law. Sexual offenses (rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, etc.) have also been incorporated in cases at the ad hoc tribunals, with the first verdict for rape as an act of genocide at the ICTR. Meanwhile, the nexus that war crimes actually be committed during war has eroded, allowing attention to be paid toward all pronounced intrastate violence. The appropriate conventions and institutions of transitional justice are in place and identifiable areas of international cooperation exist: an expanding emphasis on legal recourse as opposed to ancient notions of vengeance, the death sentence is no longer an acceptable punishment in international tribunals, an appeals process has been instituted, and cooperation on apprehending war criminals has solidified.39 The proliferation of transitional justice mechanisms suggests an expansion of human rights and humanitarian law, indeed the early formation of a transitional justice regime. Such a regime ultimately depends on the international community of states, especially the ambivalent great powers which have the ability to pressure reluctant states to allow such mechanisms and apprehend criminals at large.

Introduction 21

The endeavor to achieve accountability has resurfaced in the past two decades. Ample remedies to seek accountability are available: customary mediation, commissions of inquiry, truth and reconciliation commissions, civil or military courts, hybrid or mixed courts, and international tribunals and foreign courts. The following figures (see Figures 1.3 below and 1.4 on p. 24) distinguish between those remedies of a legal nature and those reflective of a more social process.40 Figure 1.3

Legal Remedies to Achieve Justice

LEGAL REMEDIES

Domestic Courts (civil/military)

Hybrid Courts

International Courts

Foreign Courts (civil/military)

Calley/US Barbie/France Hussein/Iraq

SPSC SCSL ECCC

ICTY ICTR ICC

Peña-Irala/US Eichmann/Israel Pinochet/Spain

National courts and domestic procedures where the crimes occurred are presumptively the most appropriate venue for accountability since they can clearly establish jurisdiction (such as Rwanda’s trials of its own génocidaires), and the international law concept of complementarity recognizes the priority of national remedies.41 Numerous national war crimes tribunals and commissions, both civilian and military, arose in response to the vast chaos of World War II; Germany itself prosecuted nearly 13,000 defendants from 1945-1963.42 In 1970, a domestic military court in the United States convicted U.S. Army Lieutenant William Calley of the premeditated murder of 22 infants, children, women, and old men in violation of Article 118 of the U.S. Uniform Code of Military Justice.43 France convicted former Nazi Klaus Barbie

22

Peacebuilding and Transitional Justice in East Timor

in 1987, though the aggressive defense by Jacques Vergès (later a lawyer for former Khmer Rouge head of state Khieu Samphan) indicting France’s colonial history caused the French public to rethink its national narrative. In Argentina, General Jorge Rafaél Videla was convicted of torture in 1985 in an effort to address the dirty war and forced disappearances of the 1970s. Generally, domestic trials are not assumed to be impartial, offering either a whitewash or a show trial. Thus, international tribunals were formed to offer neutral forums to adjudicate criminal responsibility. War crimes accountability has been on the march, apparent in the creation of the ICTY, the ICTR, and the now permanent ICC.44 The ICTY was established by UN Security Council Resolution 827 pursuant to Chapter VII of the UN Charter on 25 May 1993 and is located in the Hague, the Netherlands.45 The ICTY was mandated to prosecute persons responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991 and has the authority to prosecute four clusters of offenses: grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity.46 Again acting under Chapter VII, UN Security Council Resolution 955 of 8 November 1994 created the ICTR with headquarters in Arusha, Tanzania, the Appeals Chamber and the Office of the Prosecutor in the Hague, and a deputy prosecutor in Kigali, Rwanda.47 The ICTR is mandated to prosecute persons responsible for the genocide and other serious violations committed in Rwanda and neighboring territory during 1994.’ The Rome Statute of the ICC was agreed upon on 17 July 1998 and entered into force on 1 July 2002, establishing the first ever permanent, treaty-based court (located in the Hague, the Netherlands) to handle the worst violations of international law by individuals: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (once aggression is defined by the court).48 The ICC has already begun its investigations of four cases: Sudan, Congo, Central African Republic (CAR), and Uganda, and for the first time indicted a sitting head of state, President Omar al-Bashir of Sudan. Ad hoc international courts and the ICC have jurisdiction to try the most egregious violations of international human rights and humanitarian law and may expose important actors and war criminals to international scrutiny, as occurred with the ICTR’s 1998 Jean Paul Akayesu judgment and the sentencing of former Prime Minister Jean Kambanda who pleaded guilty to crimes of genocide, the first ever by an international court for the crime of genocide. Hybrid or ‘mixed’ tribunals have arisen in response to the shortcomings of the ad hoc international tribunals (in part a desire to

Introduction 23

limit expenses), balancing international and domestic jurists, prosecutors, and public defenders embedded within the domestic court system. Hybrid tribunals employ international human rights standards while also seeking to build local court capacity and instructing domestic actors in effective and efficient legal practices, allowing the dual use of international law alongside a national constitution and domestic legal concepts. Hybrid tribunals demonstrate a realization that ad hoc international tribunals need to build infrastructure to establish longlasting improvements. Simultaneously in Sierra Leone (Special Court for Sierra Leone, SCSL), East Timor (Special Panels for Serious Crimes, SPSC), and Cambodia (Extraordinary Chambers in the Courts of Cambodia, ECCC), three innovative experiments of hybrid war crimes tribunals have been practiced.49 At the same time, the growing efforts to employ universal jurisdiction allow foreign courts with no material connection or claim of jurisdiction to hear cases that violated jus cogens norms of international law.50 Various investigations and legal judgments that seek to review heinous acts and try human rights abusers have slowly proliferated, causing impassioned responses from human rights advocates and stirring great antipathy from foreign policy practitioners. While the powerful disdain a ‘rogue’ prosecutor or judge like Spain’s Balthazar Garzon, the weak have the most to fear since the ability to apprehend suspects is usually limited to strong states. In the case of Nazi war criminal Adolf Eichmann in 1961, Israeli secret agents simply seized the accused in Argentina and tried him under the claim of universal jurisdiction in Jerusalem.51 The 1980 Filártiga v. Peña-Irala case in the United States employed an obscure domestic law, the 1789 Alien Tort Claims Statute, to claim jurisdiction and find a Paraguayan official guilty of torture. In 1998, former head of state General Augusto Pinochet of Chile was detained while seeking medical treatment in Great Britain on a Spanish arrest warrant.52 The original basis for the extradition request was a Spanish law asserting universal jurisdiction to try certain kinds of cases, irrespective of where they occurred and without regard to the nationality of the victim. Truth and reconciliation commissions have also played a role in the international system by exposing the role of outside forces in fostering domestic violence and recording political history to provide an essential public document to cast shame on a wide range of international actors. At a minimum, they offer a subtle reminder of past abuses and perhaps a deterrent to future adventurism. Priscilla Hayner outlined several goals of a truth and reconciliation commission: to punish perpetrators, establish truth, repair/address damages, pay respect to victims, prevent further abuses, promote national reconciliation, reduce conflict over the

24

Peacebuilding and Transitional Justice in East Timor

past, and highlight a new government’s concerns for human rights.53 Hayner suggested that these goals may be accomplished through domestic or international trials, a government purge, a commission of inquiry, access to security files, reparations, memorials, reform of the police, military, judiciary, etc. Though joined together, the truth component and reconciliation component should be considered two wholly separate functions and judged on their respective abilities to reach these distinct goals.54 Figure 1.4

Social Remedies to Achieve Reconciliation

SOCIAL REMEDIES

Customary Mediation (reconciliation)

Commissions of Inquiry (truth)

Truth & Reconciliation Commissions

Kosovo/Kanun Rwanda/Gacaca

Burundi/1993 riots East Germany/Stasi Kenya/2007 election

Peru/CVR South Africa/TRC Sierra Leone/TRC

Afghanistan/Pashtunwali

Commissions are often tasked with nearly impossible mandates: to achieve national reconciliation in postconflict societies. Nevertheless, many commissions actually achieved a measure of atonement. South Africa was the most successful, though several Latin American cases are notable as well. Expected retributions did not materialize in any systematic way, and Chile’s 1990 National Commission on Truth and Reconciliation, the 1991 El Salvador Commission on Truth, and Guatemala’s 1994 Commission for Historical Clarification provided some closure to victim’s families and friends.55 Dozens more truth commissions have been created around the world since the 1990s, such as Peru’s 2001 Truth and Reconciliation Commission examining a wide range of social and political events.56 Collectively, their achievements

Introduction 25

are most evident in terms of providing individuals with the whereabouts of former ‘disappeared’ persons and documenting specific methods of torture, abuse, and murder. Truth commissions have even pressured foreign governments to take responsibility for past policies that contributed to human rights violations. The Latin American cases, particularly El Salvador and Guatemala, described the detrimental role played by foreign sponsors such as the United States. While this may not be justice, revealing the truth is a step in the rebuilding of personal lives destroyed by psychological and emotional trauma. Traditional village level mediation practices offer another alternative to attain social harmony and reconciliation, incorporating religious or spiritual components into the procedure. South Africa highlighted a form of restorative justice incorporating the Xhosa and Zulu concept of ubuntu (“humanity toward others”) and the Christian ethic of forgiveness. Often conducted in collectivist cultures, traditional mediation emphasizes group stability and seeks to ensure the viability of the community. The ritualistic methods of such practices may differ from Western notions of justice and reconciliation, but its historical foundations make it more meaningful locally. Rwanda revived its customary gacaca (“justice in the grass” in Kinyarwanda) process because of the failure to expedite the court proceedings of the more than 100,000 detainees that were mired in prison for nearly a decade. Customary justice was also incorporated into the reconciliation aspect in East Timor and Sierra Leone, furthering the legitimacy of each process. Though with a strong cultural relevance, traditional justice is often dictated by hierarchical social relationships based on kinship and rarely adopts internationally recognized human rights standards. This book adopts the United Nations’ definition of transitional justice: transitional justice “comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”57 Using this version as a standard definition, the book explores this process in slightly more specific terms and questions the cultural relevance of these very notions to East Timor. Although philosophical and theoretical debates about the notion of justice in postconflict societies are wide ranging, few have problematized the applicability of these Western orchestrated transitional justice mechanisms to non-Western settings. The literature on transitional justice frequently ignores these historical and cultural underpinnings; overlooked are the voices of the affected community and often absent is the role of culture from deliberations over success and failure. Regarding justice as a standard of fairness and accountability

26

Peacebuilding and Transitional Justice in East Timor

and reconciliation as an ethic of social restoration and personal transformation, this book considers whether (1) mechanisms were deployed where needed, (2) an inclusive time period that encompassed the broad context for the violence was adopted, (3) ample resources were provided to actualize the project, and (4) all perpetrators were held accountable. The book also evaluates whether the transitional justice process and its results were acceptable and understandable to the local population and effectively built greater capacity for further implementation. Ultimately, each society determines whether its justice system should seek to improve, ‘correct,’ deter, or simply punish. The Relationship between Peacebuilding and Transitional Justice

Peacebuilding and transitional justice must always be situated within the larger context of international relations and cannot be judged independently of global politics. Sometimes, peacebuilding and transitional justice are façades to mask the foreign policy choices of a previous generation: great powers or neighboring states often support despots, fund insurgencies, and supply warring factions that destabilize societies and create conditions that lead to crimes against humanity. At other times, the choice to deploy peacebuilding operations or adopt transitional justice mechanisms follows a decision to do nothing, when acting quickly could have saved tens of thousands of lives. Prominent international actors (powerful states and the UN Security Council) often conspire to avoid intervention and seek political cover when faced with uncertain risks, willfully ignoring massive atrocities such as occurred in Rwanda. Ironically, following these political decisions, human rights groups often assign these same powers the ‘responsibility to protect’ when domestic actors commit grave human rights violations within their own sovereign borders.58 Likewise, the application of international ‘justice’ is more symbolic than substantive and more tailored to a foreign audience for public consumption than to building sustainable political and judicial structures that will help to ensure long-term peace and stability. The presence of an international peacekeeping force with a proper mandate to maintain security could have (likely would have) prevented the savagery of Rwanda’s genocide.59 However, sometimes when the international community takes a hands-off approach, the brutality of war occasionally exhausts its combatants and naturally leads to peace. In Rwanda, while the rest of the world watched, Paul Kagame’s Rwandan

Introduction 27

Patriotic Front (RPF) rebels acted to stop the genocide, though the RPF committed their own massacres, albeit on a much smaller scale. An examination of East Timor reflects the changing nature of the international reaction to massive human rights violations and war crimes accountability following the end of the Cold War and at the beginning of the U.S. ‘war on terror.’ The Cambodian mission of 1991-1993 was an initial attempt after the end of the Cold War to expand the purview of the United Nations into rebuilding states, and thus serves as a benchmark to evaluate subsequent operations. The interim between the Cambodia and East Timor missions witnessed the humanitarian intervention in Somalia to provide food relief, the peacemaking U.S.-led forces in Bosnia, Haiti, and Kosovo, and the failure to prevent or end the worst human rights atrocities of the past three decades in Rwanda. Nearly a decade after the Cambodia case, the East Timor mission allows for a review of changes in the status of human rights as a criterion for intervention and as an element of a peacebuilding operation, as well as the opportunity to improve linkages between and among transitional justice mechanisms and peace operations. Increasingly, the notions of human rights and transitional justice have become embedded in peacebuilding operations, yet best practices have not fully developed from recent cases and the relationship between nation-building and transitional justice is not firmly established. The introduction of hybrid tribunals and tribunals and truth commissions in the early 2000s in East Timor and Sierra Leone sought to encourage judicial reform in the domestic arena by blending local and international personnel as a form of capacity building. This temporal distinction can be useful to distinguish the proper sequencing of institution-building as the United Nations seeks to better integrate human rights and transitional justice into its peacebuilding projects. Of course, one must bear in mind that the United Nations has had limited experience with transitional authorities; only the United Nations Temporary Executive Authority (UNTEA) in West New Guinea in 1961 and the United Nations Transitional Administration for Eastern Slavonia (UNTAES) in 1996 preceded East Timor, which itself was conterminous with the United Nations Mission in Kosovo (UNMIK). Thus, this book begins a dialogue that seeks to match the proper institutions of transitional justice to a particular set of given circumstances in order to determine which desired outcome will best accommodate a specific constituency. Institutions range from independent domestic mechanisms such as customary mediation or national courts, to mixed tribunals or truth and reconciliation commissions, to wholly international tribunals. Circumstances refer to

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Peacebuilding and Transitional Justice in East Timor

the cultural, economic, political, and social realities on the ground and the unique factors that contributed to political violence (whether interstate war, civil war, crimes against humanity, genocide, or other) in a given area or region. Such factors may include ethnic hostilities, competition for state authority, personal disputes over leadership, secessionist ambitions, control over natural resources, outside manipulation by foreign powers, opposing ideological perspectives, and nationalist tensions. Desired outcomes are peace, justice, and/or reconciliation. Constituencies (or audiences) comprise individuals (victims and perpetrators), the community, state decision-makers, and international actors (the human rights community and interested nations). Particular segments of society may require special consideration: elites, arbiters of political power or mediators of public opinion, ethnic or religious minorities, spoilers, etc. Targeting of such groups usually includes incentives and disincentives along with informational and educational outreach. Plan of the Book

Following this introductory chapter, Chapter 2, “Colonialism, Cold War, and Crimes Against Humanity,” describes the historical antecedents that led to a humanitarian intervention in East Timor, the nature of the atrocities committed, and the implementation of the UN peace operation. Many positive currents run through the East Timor intervention as a whole. The international community achieved national self-determination for an oppressed minority and re-established the pathway to self-rule of a non-self-governing territory that missed its opportunity for independence during Portugal’s long awaited decolonization process in 1976. A robust peace enforcement force led by Australia physically ended Indonesia’s 23-year occupation and ended crimes against humanity while relief agencies admirably staved off a far worse crisis by assisting refugees in their movement and delivering adequate food, aid, and support. Chapters 3 and 4 evaluate the successes and failures of peacebuilding and transitional justice in East Timor. In evaluating the performance of the international community, it may be helpful to keep in mind the setting upon deployment of international forces that structure the context of success and failure. Three primary factors were at play in Timor that offered a benevolent environment for potential success. First, the territory is a geographically small area in close proximity to the lead actor in the mission (Australia), allowing for a rapid deployment of forces and the ability to secure the population with

Introduction 29

a smaller armed contingent than in larger contexts. Second, the majority of the local population, having long sought an international intervention, was very compliant with outside forces and demonstrated little initial hostility toward the armed peacekeepers. Finally, the offending party, Indonesia, had consented to the operation and was essentially removed from the equation in the aftermath of the intervention, reducing the likelihood of spoiler violence or a major long-term obstacle to internal stability. Although border incursions remained a threat, and occasional outbreaks of violence along the generally porous frontier did occur, compared to zones where a fragile stalemate was enforced by peacekeepers, East Timor was quite secure. Yet one major pre-condition was not operating in favor of international actors: East Timor was utterly devastated by the effects of the Indonesian withdrawal (active with militias, thus requiring robust policing) and would be tasked with building a state from ground up where essentially no nation-wide, independent political entity had ever existed. Chapter 3, “As Good as it Gets? The International Rebuilding of East Timor,” re-evaluates UN attempts to build peace in East Timor five years after the bulk of the UN mission left and subsequent to the first post-independence presidential and parliamentary elections took place in 2007. It asks the question “Did the United Nations help to create a peaceful state and society capable of self-governance?” Countless observers have labeled the East Timor mission one of the UN’s few success stories in a post-Cold War era of many frustrations and catastrophes, from Somalia to Bosnia, Haiti, and Rwanda, though the results are mixed in light of sporadic violence in 2002, 2006, and 2007, as well as larger institutional problems related to the failure to build an impartial judiciary and reintegrate former combatants into the new political project. Nevertheless, the UN transitional authority initiated the institutions of self-government in an extremely poor territory illequipped and still unprepared for its own administration. With international assistance, this unique peace operation even took the further step of initiating a war crimes tribunal and truth and reconciliation commission to promote justice and reconciliation in the postconflict environment. Chapter 4, “Justice and Reconciliation: Culture, Courts, and the Commissions,” problematizes the practice of transitional justice, as it explores the dilemmas and pragmatic choices in the operation of these mechanisms according to set of analytical criteria. It asks two questions: “Did transitional justice satisfy demands for accountability, justice, and/or reconciliation?” and “Which model of transitional justice can best achieve these goals?” By way of conclusion, Chapter 5,

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Peacebuilding and Transitional Justice in East Timor

“Connecting Peacebuilding and Transitional Justice,” offers policy recommendations through an integrated approach to improve the coordination of various mechanisms and link transitional justice to peacebuilding, and suggests some opportunities to improve the implementation of accountability mechanisms by linking responses across several sectors to choices made at different temporal phases. This book does not deny the successful aspects of the East Timor operation overall, nor does it consider the operation an unmitigated failure. Rather, with the benefit of hindsight and ample time to consider fundamental aspects of the mission, it asks the three questions mentioned above. In so doing, it does not wish to re-evaluate every component of the UN role in East Timor solely as an external audit or search for best practices for the next operation. Instead, this book seeks to situate the state-building project within Timor’s postconflict social and political development and adopts an often sociological and ethnographic evaluation of its legacy upon the historic moment of the first election in a free and independent East Timor and subsequent attacks on both the president and prime minister, the former shot twice and evacuated to Australia, perhaps punctuating the UN peace building process and puncturing previous assertions of success. All of this is to suggest that when it comes to judging peace operations (whether unilateral or multilateral), one cannot become solely focused on the scope of mandates, the efficiency of bureaucracies, or the appropriateness of institutions. These choices will enormously impact the ultimate performance of such operations, yet public support and ultimately the local perspective on the mission is another standard of success, one heavily dependent on simple, ordinary encounters between people. Therefore, this book seeks to systematically evaluate the mandates, institutions, and effectiveness of peacebuilding and transitional justice in East Timor, but also to intersperse that with stories and observations about people, their behaviors, and their attitudes. Notes 1. From 2006-2009, Guido Valadares Nacional Hospital was the site of a makeshift refugee camp for 2,000 homeless persons following the 2006 riots. Livestock of goats, pigs, and chickens wandered the hospital grounds creating an unsanitary environment. 2. Prior to 1986, Kopassus was known as Komando Pasukan Sandhi Yudha (Secret Warfare Command, Kopassandha). 3. Those few patients in the VIP room that could pay for their own medical care received bottled water, fans, air conditioning, and a seemingly attentive staff.

Introduction 31

4. By contrast, development is more economically-oriented and arguably a more tangible public policy choice, though an exceedingly rare occurrence based on traditional standards of economic growth. In essence, development is a modern notion of technical expertise, planning, cost-benefit choices of sustainability, autonomy, and growth and is complicated by environmental constraints, domestic lobbyists, poor infrastructure and human resources, as well as the tumultuous global trading and financial system. Although still valueladen, development is a more evaluative term (whether by gross domestic product-GDP, a human development index-HDI, or another catalogue of criteria) than the aforementioned categories that are very politically-loaded and hard to quantify. 5. Cédras had overthrown the democratically-elected President JeanBertrand Aristide. 6. Amin was invited to Britain on a state visit after his ethnic cleansing; he died in 2003. 7. This time period includes the brutal regime of Milton Obote that preceded Amin’s coming to power. The Yoweri Museveni regime, which took power in 1986, launched a Commission of Inquiry into Violations of Human Rights (The Commissions of Inquiry Act Legal Notice No. 5 [16 May 1986]), though little was accomplished, owing in no small part to lack of funding. 8. Galtung, “A Structural Theory of Aggression,” pp. 95-119. Definitions of peace sometimes include gaia (peace as ecological sustainability), feminist, and other notions. 9. “Liberal’ is used in the sense of the normative theory of international relations favoring international organization and law to foster peace. 10. Bass, Stay the Hand of Vengeance, p. 286. For further discussion of the merits of war crimes trials, see Ball, Prosecuting War Crimes and Genocide; Hesse and Post, Human Rights in Political Transitions; Neier, War Crimes; Ratner and Abrams, Accountability for Human Rights Atrocities in International Law; Robertson, Crimes Against Humanity; and Roht-Arriaza, Impunity and Human Rights in International Law and Practice. 11. France, Great Britain, and Russia denounced Turkey’s genocide of Armenians as “crimes against humanity and civilization,” but accountability was not forthcoming. Yet by using the term humanity, the Allies were beginning to recognize the place of individuals in international law. On the contrary, the relative ambiguity of the term was problematic as it imparted a moral connotation and was not firmly established in codified law, nor in positivist interpretations of customary law. Later, crimes against humanity were enumerated in such a way as to give more legitimacy to the notion. Falk, Kolko, and Lifton, Crimes of War, pp. 22-23. 12. In the United States, see Filartiga v. Pena-Irala 630 F.2d 876 (1980), Kadic v. Karadžić 70 F.3d 232, 518 U.S. 1005 (1996), and In Re Marcos 103 F.3d 767 (1996). See also the Inter-American Court of Human Rights, Aloeboetoe et al. Case (1991) IACHR 1, Judgment of 4 December 1991 on compensation. Civil suits may become a more common forum for achieving some degree of redress in cases of human rights abuses, especially with passage of domestic legislation in the United States like the 1992 Torture Victims Protection Act (28 U.S.C. 1350), the 1994 Cambodia Genocide Justice Act (22 U.S.C. 2656), and the 1998 Torture Victims Relief Act (22 U.S.C. 2152).

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Peacebuilding and Transitional Justice in East Timor

13. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, 23 August 2004. 14. The South Africa Truth Commission explains the trade-off as “Reconciliation involves a form of restorative justice which does not seek revenge, nor does it seek impunity. In restoring the perpetrator to society, a milieu needs to emerge within which he or she may contribute to the building of democracy, a culture of human rights and political stability. The full disclosure of truth and an understanding of why violations took place encourage forgiveness. Equally important is the readiness to accept responsibility for past human rights violations.” Truth and Reconciliation Commission (TRC) of South Africa Report (29 October 1998): vol. 5, ch. 9: Reconciliation, pars. 146-148. 15. In South Africa, based on the Promotion of National Unity and Reconciliation Act No. 34 of 1995, the reconciliation option was chosen instead of retributive trials and those who testified truthfully were granted amnesty. There, the Human Rights Violations Committee investigated human rights abuses that took place from 1960-1994, taking a reasonably long-term view of apartheid. Truth and Reconciliation Commission (TRC) of South Africa Report (29 October 1998): vol. 5, ch. 9: Reconciliation, pars. 146-148 and vol. 5, ch. 8: Recommendations, Prosecutions for apartheid as a crime against humanity, par. 114. 16. ‘Denazification’ was an effort, in conjunction with judicial, economic, and political processes, to rebuild Germany and remove the last vestiges of the Nazi era and is a precursor to the later truth commissions that aspire to restore peace and democracy and promote reconciliation in postconflict situations. 17. Bellamy, et a, Understanding Peacekeeping, pp. 73-74. 18. The UN Emergency Force (UNEF) from 1956-1967 to end the 1956 Suez Crisis is generally accepted as the first mission to be called peacekeeping, but others began as early as the late 1940s. 19. Bellamy, et al, Understanding Peacekeeping, p. 96. 20. Diehl, International Peacekeeping, pp. 5-6. 21. Annan highlighted the “developing international norm in favour of intervention to protect civilians from wholesale slaughter” and the legitimacy of UN endorsement as key factors to validate intervention with force. Kofi Annan, “Two Concepts of Sovereignty,” The Economist, 18 September 1999. 22. See Warren P. Strobel, “The Media and U.S. Policies Toward Intervention: A Closer Look at the “CNN Effect”,” in Crocker, et al, Managing Global Chaos, pp. 357-376. 23. Boutros-Ghali, An Agenda for Peace. 24. Boutros-Ghali, An Agenda for Peace, p. 11. 25. Carnegie Commission, Preventing Deadly Conflict, p. 69. The Carnegie Commission states that “structural prevention−or peacebuilding−comprises strategies to address the root causes of conflict, so as to ensure that crises do not arise in the first place, or that, if they do, they do not recur.” 26. Boutros-Ghali, An Agenda for Peace, p. 11. 27. Boutros-Ghali, An Agenda for Peace, p. 11. 28. For a discussion of the challenges posed by coordinating the military, NGOs, and IGOs in peace operations, see Aall, et al, The Military, NGOs, and IGOs in Peace Operations. 29. Boutros-Ghali, An Agenda for Peace, p. 11.

Introduction 33

30. See Weiss, et al, The United Nations and Changing World Politics. Diehl, et al, classify 12 types of peacekeeping: traditional peacekeeping, observation, collective enforcement, election supervision, humanitarian assistance during conflict, state/nation building, pacification, preventive deployment, arms control verification, protective services, intervention in support of democracy, and sanctions enforcement, Diehl, et al, “International Peacekeeping and Conflict Resolution,” pp. 33-55. In the late 1990s, William Durch identified four types of peace operations: traditional peacekeeping, multidimensional peace operations, peace enforcement, and humanitarian intervention, Durch, “Keeping the Peace: Politics and Lessons of the 1990s,” in William J. Durch, ed., UN Peacekeeping, American Policy and the Uncivil Wars of the 1990s (London, UK: Macmillan, 1997), pp. 1-34. Michael Doyle differentiated four types as well: monitoring or observer missions, traditional peacekeeping, multidimensional peacekeeping, and peace enforcement, Doyle and Sambanis, “International Peacebuilding,” pp. 779-802. Steven Ratner and John Mackinlay and Jarat Chopra distinguished two generations of peacekeeping, while Marrack Goulding identified three. Steven R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War (New York, NY: St. Martin’s Press: Council on Foreign Relations, 1995); John Mackinlay and Jarat Chopra, “Second Generation Multinational Operations,” The Washington Quarterly 15, no. 3 (1992): 113-131; and Marrack Goulding, “The Evolution of United Nations Peacekeeping,” International Affairs 69, no. 3 (1993): 451-465. 31. Richmond, Maintaining Order, Making Peace, pp. 41, 76, 140. 32. See Milliken, State Failure, Collapse, and Reconstruction. Normative theoretical perspectives that effectively incorporate these factors include John Paul Lederach’s Building Peace, whose integrated framework systematically examines root causes, crisis management, prevention, vision, and transformation. Lederach, Building Peace, pp. 79-82. 33. Hesse and Post, Human Rights in Political Transitions, pp. 20-21. 34. For a presentation of the idea of hegemonic stability and the decline of hegemonic power, see Robert Gilpin, War and Change in World Politics (Cambridge, UK: Cambridge University Press, 1981) and Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton, NJ: Princeton University Press, 1984). 35. Realists within the field of international relations or legal positivists in international law generally put forward these arguments. In classical terms, leading critics of Wilsonianism include Georg Schwarzenberger, Power Politics: A Study of International Society (New York, NY: Praeger, 1951); Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York, NY: Knopf, 1948); E.H. Carr, Twenty Years Crisis, 1919-1939: An Introduction to the Study of International Relations (New York, NY: St. Martin’s Press, 1946); and Henry Kissinger, Nuclear Weapons and Foreign Policy (New York, NY: Harper, 1957), to name a few. 36. Minow, Between Vengeance and Forgiveness, p. 30. For a discussion of various perspectives on historical trials, see Ferencz, Enforcing International Law and Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York, NY: Knopf, 1992). 37. Hesse and Post, Human Rights in Political Transitions, p. 28. 38. Ibid., p. 208.

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Peacebuilding and Transitional Justice in East Timor

39. The death sentence continues to be within the scope of numerous national procedures and is practiced in Rwanda. 40. See Horowitz and Schnabel, Human Rights and Societies in Transition: and Romano, et al, Internationalized Criminal Courts and Tribunals. 41. The ICC would only have jurisdiction over crimes in which no national court had jurisdiction, where a national court with jurisdiction chose not to prosecute, where crimes occurred in several countries or against nationals of different countries, or if crimes were committed by the heads of states. See Rome Statute of the International Criminal Court, Articles 1, 12, 13. 42. Barry E. Carter and Phillip R. Trimble, International Law (Boston, MA: Little, Brown and Co., 1995), p. 1434. 43. In 1969, President Nixon claimed that the U.S. military’s killings of unarmed civilians at My Lai in Son My, Vietnam was an isolated incident and favored a military commission over a civilian one to investigate. Calley was sentenced to dismissal from the army and 20 years hard labor, which was upheld by the U.S. Military Court of Appeals, though he was paroled early in 1974, See United States v. Calley, 46 C.M.R. 1131 (1973). 44. Formally, the ICTY is known as ‘The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.’ Formally, the ICTR is known as ‘The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.’ The ICTR began its work in November 1995 with its headquarters in Arusha, Tanzania; the Appeals Chamber and the Office of the Prosecutor are based in the Hague, the Netherlands, with a deputy prosecutor in Kigali, Rwanda. 45. S/RES/827 (1993), UN Security Council Resolution 827 of 25 May 1993. 46. As of 19 April 2009, 161 individuals have been indicted for violations of international humanitarian law in the former Yugoslavia (including Serbian head of state Slobodan Milošević, who faced, an albeit unproductive, trial); 58 were sentenced, ten were acquitted, 36 had cases withdrawn or deceased, and 44 accused were in ongoing proceedings, http://www.icty.org. 47. S/RES/955 (1994), UN Security Council Resolution 955 of 8 November 1994. 48. The court can exercise jurisdiction only when cases are recommended by a state that is party to the treaty or the UN Security Council, or if the prosecutor launches his or her own investigation following authorization of the Pre-Trial Chamber. If the crimes occur on the territory of a state party to the statute or the suspect is from such a state, no investigation can occur (unless the given state subsequently accepts ICC jurisdiction); however, investigations authorized by the UN Security Council can occur anywhere. According to Article 13, the Court may exercise its jurisdiction if a crime is referred to the prosecutor by a state or by the Security Council acting under Chapter VII. The prosecutor can initiate an independent investigation if a given state is party to the convention. The inclusion of legal persons (states and corporations) failed, and thus only natural persons are subject to the Court. Article 120 also

Introduction 35

stipulates that there can be no reservations to the treaty, though the Security Council can defer an investigation for renewable one-year periods. The statute was approved 120-7-21 in an unrecorded vote. Descriptions of the court in this section are taken from the ICC website, http://www.icc-cpi.int. 49. S/RES/1315 (2000), UN Security Council Resolution 1315 of 14 August 2000 mandated a trial to consider crimes since 30 November 1996, and on 16 January 2003, Sierra Leone and the United Nations agreed to the Special Court for Sierra Leone. The Trial Chamber comprises two internationals and one Sierra Leonean, while the Appeals court has three internationals and two Sierra Leoneans. Other hybrid mechanisms have been adopted in some form in Bosnia and Herçegovina, Cambodia, and Kosovo. 50. Jus cogens norms are peremptory norms of international law reserved for the most egregious offenses like torture, genocide, etc. 51. Universal jurisdiction developed from Israel’s 1961 seizure of accused Nazi war criminal Adolf Eichmann in Argentina and his subsequent trial. Eichmann was brought to stand trial in Israel, despite the fact that “Israel had not existed at the time of Eichmann’s crimes, no acts had been committed on Israeli territory, and there was no prospect of a fair trial.” In fact, the Israeli decision found that “the authority and jurisdiction to try crimes under international law are universal,” setting an important precedent. The trial focused on the crime of genocide, specifically acts committed against the Jewish people. Eichmann was found guilty and hanged to death on 1 June 1962. See The Attorney General of Israel v. Adolf Eichmann (1961), District Court of Jerusalem, Criminal Case 40/61. 52. Chile’s 1978 Amnesty law afforded immunity to Pinochet as a Senatorfor-Life, though Chilean courts have limited its application. When Pinochet traveled to England in September 1998 seeking medical treatment, a court in Spain sought his extradition. The British House of Lords ruled 3-2 that Pinochet did not have immunity. See Regina v. Bartle (Ex Parte Pinochet), 1999. Subsequent decisions by the British courts have limited extraditable charges to torture and conspiracy to torture committed after December 1998. 53. Hayner, Unspeakable Truths, p. 11. 54. The most comprehensive analysis of truth commissions is Hayner’s Unspeakable Truths. Most analyses of truth commissions focus on specific cases. For more comparative or theoretical interpretations, see Kritz, Transitional Justice; Minow, Between Vengeance and Forgiveness; Rotberg and Thompson, Truth v. Justice; and Mark Freeman, Truth Commissions and Procedural Fairness (Cambridge, UK: Cambridge University Press, 2006). 55. The Chilean goal was to establish a complete picture of the causes, circumstances, and events which created human rights violations; to gather evidence in order to identify victims by name and location; to recommend reparation and the restoration of honor; and to recommend legal and administrative measures to prevent further violations. The Commission was created under Supreme Decree No. 355, with a mandate to examine the period from 1973-1990, Report of the Chilean National Commission on Truth and Reconciliation (February 1991), Objectives of the Commission. The Salvadoran commission sought to investigate serious acts of violence since the 1980s, and recommended dismissals from the armed and civil services, disqualification from holding public office, judicial reform, protection of human rights, police reform, material and moral compensation to victims, creating a forum for truth

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and reconciliation, and penalizing the guilty. From Madness to Hope: The 12Year War in El Salvador: Report of the Commission on the Truth for El Salvador (15 March 1993), Introduction. Guatemala’s Commission sought to clarify the human rights violations and acts of violence connected with the armed confrontation that caused suffering among the Guatemalan people during the more than three decades of fratricidal war, and was tasked with recommending “measures to preserve the memory of the victims, to foster an outlook of mutual respect and observance of human rights, and to strengthen the democratic process.” Guatemala: Memory of Silence (‘Memoria del Silencio’), Report of the Commission for Historical Clarification (25 February 1999), Conclusion, par. 122. 56. Other commissions include Argentina’s National Commission on the Disappeared (CONADEP), Honduras’ 1992 Commission for the Protection of Human Rights, Haiti’s 1995 National Commission on Truth and Justice, Czechoslovakia’s Commission for the Investigation of Events in 1967-1970 and November 17 Commission, Poland’s Constitutional Accountability Commission, Chad’s 1992 Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habre, His Accomplices and/or Accessories, Ghana’s 2002 National Reconciliation Commission, and Truth and Reconciliation Commissions in Sierra Leone in 2001 and Liberia in 2006. 57. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, 23 August 2004. 58. See International Commission on Intervention and State Sovereignty, The Responsibility to Protect. 59. Zisk, Enforcing the Peace, p. 34.

2 Colonialism, Cold War, and Crimes Against Humanity As the world’s newest nation and one of its smallest at 15,000 km2, East Timor occupies the eastern half of the island of Timor in the southern Pacific Ocean, lying near the northern coastline of Australia and sharing a border with Indonesia.1 A sprawling archipelago of more than 17,000 islands and nearly two million square kilometers, Indonesia’s maritime boundaries are framed by Malaysia to the north, Australia to the south, and Papua New Guinea to the east. Somewhat overlying the former Javanese-based Majapahit empire (1293-1520), which stretched across a wide swath of present day Indonesia before sultans replaced their patrimony, modern Indonesia’s distinctive island cultures represent a widely diverse palate of ethnic, linguistic, and religious groups. The fourth most populous country in the world with a population over 240 million, Indonesia also has the world’s largest predominately Muslim population (88 percent of its total). By contrast, East Timor’s population is slightly less than one million, and 93 percent are Catholic with small Muslim (4 percent) and Protestant minorities. Easily impacted by more powerful outside nations, Timor’s history is a narrative of constant intervention. Presented chronologically since the first settlement, this chapter distinguishes three eras of political violence (the Portuguese colonial era, the Indonesian invasion and occupation, and Indonesia’s withdrawal) along with a brief account of the peace process and subsequent UN-guided transition to independence. Understanding Timor’s history, culture, and indigenous practices is essential to evaluate attempts to apply notions of peace, justice, and reconciliation to this postconflict society. Aside from the many stories of punishment beatings by former neighbors, wives being raped, practices of torture, arbitrary arrest and imprisonment by thuggish security forces, a more understated observation regarding Timor’s social upheaval remains with me from my travels there. The complexity of a postconflict society in flux caught between traditional and modern life is not merely an academic construction, but is so very apparent in the transformations still ongoing from sleepy Portuguese-administered feudalism and secluded

37

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Peacebuilding and Transitional Justice in East Timor

Indonesian occupation to the explosion of modern conveniences so tantalizingly close in the lifestyle of international humanitarians. Countless dramatic examples could reflect such a shift, but below I describe but a subtle reflection as a way to introduce the background to these most recent waves of visitors from distant shores. Understanding the Local Terrain

Dozens of young men zip by on motorbikes, while a few sanguine aging gentlemen meander about town, calmly observing the day’s activities as they loiter in the market. Yet at the sight of a foreign face, the old fellows move with alacrity, approaching almost inevitably with a warm smile to inquire whether you speak Portuguese: ‘Senhor, voce fala Portuguese?’ Possessing only some minimal French and Spanish to assist me, we communicate through the Latin roots of the three languages, with the occasional assistance of a multilingual passerby or colleague. With only subtle disappointments to discover that I am not Portuguese, such conversations continue amidst the polyglot of visual cues and verbal stews. These encounters occur in the remote villages of Oecusse, the mystical lands of Los Palos, and the highlands of Maubisse, where horsemen still flourish. In one such interaction in Hatubuilico, a small village at the base of Foho Tatamailau, Timor’s highest peak, a venerable gaúcho of probably 60 years approaches us, adorned in his chapéu de vaquero cowboy hat and poncho blanket, for here even in summer the alpine climate of the mountainous interior is famously cold after sunset. Whereas the young men of the village aggressively tout their services as guides to climb the nearly 3,000 meter (10,000 feet) summit, which is best accomplished in the wee hours of the morning, 3:00 am to be precise, he offers us disinterested guidance on how best to scale the majestic giant and to see its crowning Virgin Mary statue and, for a brief moment when the clouds part, a view of both coastlines, southward all the way to Australia. For many Timorese, Tatamailau and its brethren are alive, infused with the spirit of their own life force. In fact, it is generally believed that mountains can shift and move, and often do so to protect Timorese from invaders. As we continue the stilted chat prior to our ascent, he recounts his days as a private in the Portuguese army, reflecting his fondness for the bygone era as he wistfully shakes his head. He reluctantly speaks Indonesian, and exhibits some understandable hostility toward the time period when these highland areas were the last refuge of the resistance and subject to strafing and attack by Indonesian troopers. Surprised by

Colonialism, Cold War, and Crimes Against Humanity 39

his fawning admiration for the Portuguese era, we ask him how he was treated by the Portuguese as a soldier. His visage instantly changes, and he scoffs in Indonesian: ‘they treated us like nothing, for them, we were not even a man.’ His fond affections for that era may be a longing for his youth, simpler days when the Portuguese occupation was a distant outpost centered in coastal Dili and the nearby pousada (guesthouse) in Maubisse was a summer retreat; the antiquated Portuguese forte in his village was probably abandoned more than a century before. Perhaps he missed the days when a lackey in a uniform garnered respect in the local community as his authority had succumbed to those who now profited from the foreign tourists that paid handsomely to stay in the newly built pousada that caters to the, albeit rare, UN or NGO day-tripper. Or perhaps it demonstrates that Indonesia’s occupation was more immediately felt and much more destructive despite its comparatively limited duration. In the rhythms of the countryside where the cocks crow before dawn, we pondered his honorable demeanor and tried to recall his instructive words for reaching the summit as our sojourn began. Upon the descent from our hike, the haunting outline of a gaúcho with tobacco slowly emanating into the morning mist was apparent and he asked if we had already completed the trip. On our own and perhaps too selfassured, without the expertise of the young guides who knew the local terrain and setting off too quickly to recall his advice, we had failed to find the pathway in the cloud-covered pitch black night and had retuned before daybreak, unable to reach the top. We shook our heads no. Perhaps the great Tatamailau had decided to insulate itself and its hidden wonders from these most recent foreign travelers, the latest invaders, who were too confident to accept local suggestions for guidance in these unfamiliar navigations. First Settlement

In the absence of external threats, distinct political cultures emerged on the island of Timor and political power in particular became very fragmented. As a result of these divisions, East Timor did not become unified and had difficulty resisting outside incursions. Early migration to the island of Timor falls primarily into two groups: (1) IndonesianMalay groups like the Belunese and Rotinese who resided in the coastal regions, spoke Tétun, and practiced a matrilineal culture, and (2) Melanesians, akin to the Papuans, who settled in the mountainous highlands and west of the island, spoke Atoni, and shared a patrilineal system.2 The Malays came to dominate life on the island and further

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pushed the Melanesian groups into the mountainous interior; although these groups somewhat coalesced over time, linguistic differences endured.3 The dominant kingdom (reinos) in pre-European Timor was that of Waiwiku-Wehale, near modern day Atambua, which consisted of three subordinate dominions: (1) the liurai (king or chief) of South Belu, (2) the liurai of Suai Camenessa, and (3) the Sonba’i of the Atoni area. Overall political power was dispersed; the east consisted of 46 free and independent kingdoms primarily inhabited by the Belu, while the Atoni populated the west with 16 kingdoms dominated by the Sonba’i raja. Although East Timor lacks the material relics of other Southeast Asian nations (Cambodia’s Angkor, Burma’s Bagan, or Indonesia’s Borobudur), the modern status of royalty still holds clout. Liurai ruled over small regions through their claim to divinity, while within small communities, lia nain (traditional story-tellers or ‘lord of words,’ i.e. a local authority) made decisions to maintain village harmony. Dato-lulik, community priests or ritual practitioners, mediated the spiritual world and conducted ceremonies related to war and peace.4 Despite the stability derived from traditional legitimacy, East Timor was not devoid of violence before the arrival of outsiders, though the nature of warfare ultimately shifted from intra-island conflict toward resistance to foreign invaders. In the Timorese funu (ritualized warfare), the symbolic acts of head-hunting and juramento (blood oaths) determined inter-group loyalty and prestige,5 while nature and spirits rewarded warriors’ costumes and colors (like red) with protection from rival attack. The Arrival of the Portuguese

Portugal’s nearly five century relationship with Timor sowed the seeds of challenges to ongoing social and political development due to the structural conditions left by its legacy of misrule. Portugal directly and indirectly caused conflict and political violence and created obstacles to self-governance, particularly through the historical and socio-cultural effects of colonialism such as the erosion of traditional notions of legitimacy, the construction of new ethnic identities and categories, the formation of the nation-state and drawing of new boundaries, and exploitation of resources. Portuguese colonials made contact with the indigenous population at various coastal locations, making political treaties with coastal liurai and converting many to Christianity along the way. Occasionally, the Portuguese moved to the interior, but rarely into the highland areas. Like most other colonial administrations that encouraged, or at a minimum allowed, Christian missionaries to convert the native population, Portuguese Catholic friars actively sought out a

Colonialism, Cold War, and Crimes Against Humanity 41

perceived civilizing mission on the island through the conversion of principally animist locals into the church. Portugal spread the Christian message by first converting a royal family in a top-down approach to proselytizing, thus local village leaders in Dili became prominent figures in the Catholic Church.6 By the 1900s, customary intermarriage between the liurai was forbidden, the liurai kingdoms were abolished, and new administrative units were introduced, largely to replace the traditional kinship exchange system (the Dutch took a similar approach in the west).7 Two symbolic sites of Timorese identity remain the sacred house (uma lulik) for offering food (generally from the first harvest) to ancestors, nature, and spirits, and the Iglesias to worship the Catholic faith. George Aditjondro suggests that Catholic iconography such as crucifixes, Virgin Mary statues, grottos, and via dolorosa structures later substituted for many of the forms of ancestor worship.8 Portugal then co-opted the traditional elites by allowing their entry into the civil service, consequently forcing them into a dependent relationship with the state, while forming legislative councils to represent local colonial elite interests: the administration, church, Portuguese plantation owners, and the army. Tensions between civil appointees and the descendants of liurai remain, particularly after the Indonesian occupation; liurai lack formal positions in modern Timor, but still have considerable clout. The Catholic Church was also brought under the authority of the corporatist system, as it promoted the Portuguese language, geography, and culture; membership in the church thus provided locals the only opportunity for an education, as well as for clerical and civil service jobs.9 Ethnic identity has not been a major source of conflict in Timor, though regional variations and a dominant mestiço social and political class are apparent. Dominican Friars and the mestiço Portuguese/Timorese, or Topasse, continued to exert primary authority.10 The Topasse community defeated the Dutch in 1656 and with the combined forces of the Timorese thwarted Portuguese efforts to install a governor in 1695 and 1702. These efforts prompted the Waiwiku ruler to convert to Islam and ally with neighboring Macassar. The Portuguese responded with numerous attacks and seized Wehale, the religious center of Timor. In 1719, prominent liurai made what is known as the Camenessa Pact to drive out the white Portuguese in alliance with the Topasse, whom they later hoped to expel as well. The Dutch finally expelled the Topasse from Servião (Vaiquenos) in 1749, except for the tiny enclave of Oecusse in the west, forcing an alliance between the Topasse and Portugal. The creation of formal borders on a small island and the formation of the Oecusse enclave remains a source of tension

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and potentially a destabilizing condition, with occasional cross border attacks on both territories. In 1816, the Dutch and Portuguese mutually agreed to recognize the border between East and West Timor, setting the frontier permanently on 25 June 1914 by the decision of the Sentence Arbitral. John Taylor argues that this new and long-lasting balance between the two colonial powers left the Timorese relatively free from incursion and disruption, yet local Portuguese and Topasse continued to rebel against direct colonial authority from Portugal.11 To adopt a counterfactual scenario, perhaps without nominal Portuguese colonial administration, the more unified Atoni in the west may have established dominance over the island in its entirety, or Dutch consolidation, and by consequence membership in a future Indonesia, could have extinguished later claims to independence. The market economy also fostered a growing inequality between colonial and indigenous, as well as resentment among the indigenous themselves, and hostility toward local commercial elites and landlords. The resultant disparities and formations of new social ranks exacerbated old tensions, while planting the seeds for new class-based forms of conflict. For Europeans, East Timor was a colonial hinterland, a distant outpost lacking in raw materials, natural resources, or abundant labor. Timor had long had a relatively small rural population with widespread poverty, poor health, and lack of education, aside from the only opportunity to become literate, the seminary.12 Portugal was most concerned with its largest colony Brazil and its African possessions; the far off island of Timor was never a priority in Portuguese colonial policy, often to the advantage of the ordinary Timorese as Portugal maintained a weak and geographically dispersed hold.13 Therefore, the changes wrought by colonization were far less severe than was the case in more prized acquisitions. Of course, Portugal’s regional slave trade, use of forced labor, and imposition of exorbitant taxes on subsistence farmers represented the harshness of Portuguese colonial administration.14 Debt bondage and other forms of indentured servitude, usually at the level of household labor, continued after slavery was abolished.15 At the end of the 19th century, under pressure from rival European powers who were enjoying more success with their colonies, Portugal sought to increase control over its overseas possessions and shift their subsistence economies to cash crops, a source of raw materials, and a system of forced labor. John Taylor describes how “Portuguese policies at the end of the century thus had two objectives: to undermine the indigenous system of kinship exchange and to create a basis for the systematic economic exploitation of its economy.”16

Colonialism, Cold War, and Crimes Against Humanity 43

Neutral during World War II, Portugal briefly lost East Timor when Dutch and Australian troops occupied the island from December 1941 until February 1943. Intermittent fighting with the Japanese, who had landed in Dili in 1942, continued and an estimated 40,000 Timorese perished during this period. Recent investigation of abuses during the Japanese occupation in World War II suggests a mini-era of atrocities, as the Japanese Imperial Army’s practice of using sex slaves (‘comfort women’) occurred across Asia, including in Timor. Though a potent symbol of steadfast resistance for Australians, World War II did little to change the status of East Timor. Despite the valiant fighting of Timorese to defend their homeland and Australia’s northern frontier from Japanese aggression, Portugal resumed administration in August 1945 and held the province until it abdicated its colonial possessions in 1975. Aside from a 1959 Timorese uprising in Viqueque (Wekeke) against discriminatory treatment under the Portuguese administration (Jakarta later used the 1959 rebellion to justify its self-claimed antiEuropean mandate), international interest in East Timor was silent.17 Distant social and political changes radically altered the nature of external interest in East Timor. In Portugal, growing domestic frustration with colonial wars, particularly in Africa, resulted in the Carnation Revolution (Revolução dos Cravos in Portuguese) when the Armed Forces Movement overthrew the civilian dictatorship of Marcello Caetano in April 1974. Following a civil struggle for power, elections in April 1976 saw the victory of a moderate president (António Ramalho Eanes) and Socialist prime minister (Mário Soares), who quickly ended Portugal’s 500 years of colonial history and granted independence to East Timor and other overseas possessions, though not Macau. The withdrawal of a colonial occupation presumes certain responsibilities and obligations, among those are to prepare a population for self-rule. Portugal’s sudden yet grossly delinquent decolonization process, a full two decades after most European possessions had been relinquished and well after UN General Assembly Resolution 1514 of December 1960 had called for independence for all non-self-governing territories, created a power vacuum that led to civil war in East Timor and allowed Indonesia’s surreptitious invasion. Indonesia’s Invasion and Occupation

The most extreme violence in East Timor occurred during the first two years after Indonesia’s 1975 invasion, when over 100,000 Timorese perished in massive killings. As pawns of Cold War politics, Indonesia and East Timor became geo-strategically important and as a result made

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Peacebuilding and Transitional Justice in East Timor

policy choices that were often because of, or constrained by, a bipolar world order. Regional balance of power and ideological motivations trumped the political independence and territorial integrity of East Timor. The pre-emptive invasion by East Timor’s powerful regional neighbor to prevent a communist foothold effectively institutionalized civil war. All of these elements were interrelated and contributed to unrest, violence, and civil war after independence. Indonesia’s invasion was very much a product of the Cold War, but its occupation was rife with its desire to promote national unity and political stability as its symbols were transplanted to Timor: the doctrine of pancasila, Islam, the Bahasa Indonesia language, authoritarian/military rule, and corrupt financial and administrative practices. Once incorporated, East Timor suffered the consequences of Indonesia’s pressing need to prevent the dissolution of its contrived post-colonial state. Although political agitation against Portuguese rule was burgeoning, Indonesia’s invasion coincided with, indeed largely caused, Timor’s civil war from 1975-1976. Following Portugal’s rapid decolonization, Timorese political movements quickly stepped into the breach. Born primarily among a small group of anti-colonial seminary students aligned originally in the Associação Social-Democrata Timorense (Timorese Social Democratic Association, ASDT), some of whom studied in Portugal and spoke Portuguese, the Frente Revolucionária de Timor Leste Independente (FRETILIN, or Revolutionary Front for an Independent East Timor, led by Nicolau dos Reis Lobato) called for unity of the people under a socialist banner and consisted predominately of these Catholic seminarians along with a small Muslim membership.18 FRETILIN’s socialism was partially ideological, though more reflective of Western willingness to abandon the small island to Indonesia’s usurpation and FRETILIN’s need to find a relevant political message. Elements of FRETILIN adopted a rigid Marxism-Leninism in May 1977, which competed with nationalist perspectives within the resistance and weakened the movement during intra-FRETILIN killings from December 1975 to January 1976 and when Lobato purged Xavier Francisco do Amaral on 7 September 1977 for lacking a fervent commitment to the guerrilla struggle.19 Two other prominent parties included the União Democrática Timorense (UDT, or Timorese Democratic Union, led by Mario Carrascalão) composed of middle and upper class Catholics, and the Associação Popular Democrática Timorense (APODETI, or Timorese Popular Democratic Association), which sought integration with Indonesia.20 APODETI was anti-Portuguese and anti-white, promoted integration with Indonesia, and sought to recover the “ancient mystical ties with the people of West

Colonialism, Cold War, and Crimes Against Humanity 45

Timor ‘realizing, at last, the existing culture of traditional mysticism of our Timorese ancestors which has been forgotten’.”21 Less ideological and unmistakably pragmatic, UDT’s conservative middle and upper class Catholic constituents switched from alliance with FRETILIN on 22 January 1975 to allegiance with Indonesia on 27 May 1975. Indonesia provided covert support to political groupings in East Timor and sought to exploit divisions between leftist FRETILIN and the rightist UDT in the civil war of August-September 1975. Following an 11 August 1975 UDT coup to expel the communists, FRETILIN seized Dili and pushed the UDT to the border of West Timor. On 28 November 1975, FRETILIN declared independence and proclaimed the Democratic Republic of East Timor (RDTL) with do Amaral as its first president, Lobato as Prime Minister, Mari Alkatiri as Minister of State for Political Affairs, José Ramos Horta as Minister for Foreign Affairs and External Information, and Rogerio Lobato as Defence Minister (the latter three would take up similar posts in 2002). Two days following this announcement, UDT and APODETI jointly declared integration with Indonesia in their ‘Balibo Declaration’ and the civil war intensified, with Kopassus secretly aiding the anti-FRETILIN alliance. Meanwhile, President Suharto of Indonesia, after getting approval for the planned offensive from U.S. President Gerald Ford and Secretary of State Henry Kissinger during their visit to Jakarta days before, began a naval bombardment of Dili on 7 December 1975.22 Claiming to end the internal civil war and recognize the ‘majority’ population’s desire to integrate with Indonesia, 30,000 Indonesian troops were deployed as Indonesian forces and Timorese militias slaughtered tens of thousands in the process of consolidating Indonesian rule. Women were raped or forcibly taken by Indonesian officers to be wives and suspected guerrillas were often disemboweled on the ground or flown out over the sea in helicopters before being cast to their death, to become ‘disappeared.’ Scorched earth policies by Indonesian military planners and the consequent refugee situation resulted in widespread famine and death, most harshly felt from 1979-1981. Among the methods and circumstances of killing identified by the final report of the Comissão de Acolhimento, Verdade, e Reconciliaçao (Commission of Reception, Truth, and Reconciliation, the Portuguese acronym is CAVR) include: indiscriminate shooting and execution of civilians, torture (including beheadings and cannibalism), disappearances, and rape.23 Indonesia was able to establish its authority in Dili rather quickly (the eastern part of the island proved more difficult), and East Timor became the twenty-seventh province of Indonesia on 17 July 1976. The CAVR final report found that the vast majority of crimes against

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humanity and deaths occurred from 1975-1980, and were associated with the Indonesian invasion. Over 100,000 Timorese perished in a nation of less than one million, approximately 15 percent of the population, before Indonesia gained control; of these, 18,600 were killings and 84,200 were deaths related to hunger and illness as a direct consequence of Indonesia’s occupation, including placing civilians in detention camps and resettlement villages.24 Indonesia stationed military and police in the province and torture and abuse by Indonesian Kopassus special forces units marked the occupation. Unable to achieve total submission, Indonesia launched a major offensive in 1978 resulting in the death of President Lobato in December and further damaging the resistance.25 As an ‘internal matter’ of Indonesia, East Timor barely received any worldwide attention, least of all from the regional governments of the Association of Southeast Asian Nations (ASEAN), and remained in a state of siege from 19761989 and low-level civil strife thereafter.26 Australia, the United States, and many other nations condoned Indonesia’s bloody seizure of East Timor, as the international community had done when Indonesia took Dutch Papua in the early 1960s, to maintain good relations with its strategic ally and to prevent an imagined communist foothold in ‘the middle of Indonesia.’ The United States did not wish to antagonize its important Southeast Asian client, especially in the context of the Vietnam War era when Indonesia was a linchpin of anti-communism to counterbalance a unified Vietnam. Indonesia had been a steadfast American ally since Suharto’s seizure of power and a major recipient of military weaponry, aid, and training from Australia, the United Kingdom, and United States.27 As a regional power, Australia has had a close relationship with Indonesia, providing economic and military aid from the Labour government of Gough Whitlam in the 1970s to the Liberal administration of John Howard. In 1978, Australia became the first Western state to recognize de facto Indonesian sovereignty over East Timor and by 1979 had negotiated maritime boundaries with Indonesia to the detriment of Timorese interests. Thus, civil unrest and internecine guerrilla warfare exemplified East Timor’s history for a generation. As a largely artificial remnant of Dutch colonial administration, modern Indonesia’s attempt to construct a national identity, unlike the relatively intact Acehnese or Javanese ethnic identity for example, was exceedingly difficult; regional insurrections have been a constant challenge for central authority. The colonial project resulted in religious difference among the distinctive peoples of its islands and/or kingdoms (Aceh, Java, Kalimantan, Moluccas, Sulawesi, and elsewhere, each with

Colonialism, Cold War, and Crimes Against Humanity 47

its own history) that remains a source of severe violence today. Java itself was confronted with enormous dilemmas associated with nationhood; consequently, the other islands were not only subject to obtrusive colonial practices but were greatly impacted by Java’s efforts to assert its authority. In recognition of the ethnic, religious, and linguistic diversity among the peoples of the archipelago, a 1949 plan was devised to form a federation that acknowledged its uniqueness. By 1950, this scheme was scrapped and Jakarta was instituting and centralizing its authority across the islands, meeting with resistance that in many cases continues to present significant domestic challenges. In essence, maintaining the territorial integrity of colonial borders and the achievement of ‘unity in diversity’ became the overriding goal of Indonesian domestic policy. Outlying areas such as West Papua and Timor were then unimportant in economic terms (mining is now an important industry in West Papua), but nonetheless were critical to maintaining the integrity of the Indonesian nation-state, as decision-makers feared a domino effect if any part of the country was allowed to secede. Secessionist movements occurred in West Java (1948-1962), Ambon (1951), West Sumatra (1958-1961), North Sulawesi (1958-1961), and South Sulawesi (1961-1965); more protracted conflicts have appeared in Aceh and West Papua. Following West Papua’s transition to Indonesian authority in 1963, Organisasi Papua Merdeka (OPM, or the Free Papua Movement) launched a guerrilla war in 1965 that continued despite its incorporation as Irian Jaya in 1969. Although the name of the province was changed to West Papua in 2003, serious tensions remain. Meanwhile, the Free Aceh Movement (Gerakan Aceh Merdeka) has been seeking independence and the formation of an Islamic state since the 1970s; after a resurgence of activity in the 1990s, negotiations with Jakarta began in 2000 and a ‘special autonomy’ was arranged offering Aceh a greater share of energy resources and a role for sharia law that established a tenuous peace.28 Lacking much historical or cultural legitimacy to rule over such a diverse and widespread chain of islands, Sukarno had to create a new notion of nationhood to maintain loyalty. Essentially, Jakarta, the renamed former Dutch capital Batavia, sought to maintain the integrity of its borders, avoid popular uprisings, and suppress secessionist movements; coercive measures were integral to these efforts. To foster support, ideological indoctrination was needed to underwrite this new identity. President Sukarno’s adoption of the motto ‘Bhinnêka Tunggal Ika’ (‘Unity in Diversity’) for Indonesia based on an old Javanese poem Kakawin Sutasoma by the Majapahit era poet Mpu Prapañca is just one

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example of this preoccupation. Meanwhile, to balance competing interests and appeal to a wide swath of public sentiment, Sukarno developed a political compromise in a vague doctrine known as pancasila and chose the Malay language, which had become popular with Indonesian nationalists in the 1920s, to become the lingua franca of the islands. As the national ideology, pancasila’s five principles are belief in God, a just and civilized humanitarianism, national unity, Indonesian democracy through consultation and consensus, and social justice. The flexibility of pancasila allowed it to be used as an instrument to silence dissent, though occasionally by opposition movements to question government behavior. Nevertheless, all debate was in effect funneled through this framework and thus served to limit movements supporting communism, Islam, or democracy.29 While Suharto employed his aristocratic privilege and rule in the traditional Javanese form, he quickly realized the necessity of establishing modern coercive control over restive areas. Ongoing attempts to centralize national resources and militarize leadership saw direct violence as simply an ordinary act of state, leading political authorities to repress dissident and secessionist movements. Suharto relied on networks of elite cooperation through bribes and crony capitalism while intimidating opposition forces and social movements, repressing political dissent and crushing secessionist movements throughout its vast territory. After its incorporation into President Suharto’s New Order in 1976, Timor must be understood in the context of a rebellious province within a post-colonial state with a fragile national identity; Timorese would suffer the consequences of such insecurity. Nevertheless, the resistance persevered, fighting a guerrilla war in the mountains while operating a clandestine network across the country and in the capital, using the Catholic Church as a unifying body. The role of Christianity grew in opposition to the faith of the latest occupying colonial power and sought to halt encroachments by Muslim migrants, becoming a unifying factor among the conquered and providing an emotional basis for a new nationalism.30 During the occupation, a coalition of Timorese proindependence organizations coalesced under the leadership of José Alexandrě Kay Rala “Xanana” Gusmão, calling itself the National Council of Maubere Resistance (Conselho Nacional de Resistência Maubere, CNRM), which coordinated internal opposition to Indonesia.31 Maubere came to signify this new national identity, though its parlance as the common man (or ‘little people’) reflected FRETILIN’s uniquely Marxist orientation and did not serve as a truly unifying concept. Regardless, Gusmão led the armed resistance after 1981 as Commander-in-Chief of Forças Armadas de Libertação

Colonialism, Cold War, and Crimes Against Humanity 49

Nacional de Timor L’Este (FALINTIL, Armed Forces for the National Liberation of East Timor) and despite his capture in 1992 by Indonesian forces, he remained a Che Guevara-like heroic figure in the struggle for independence and nationhood.32 The Peace Process

Enormous international geopolitical shifts occurred during the Indonesian occupation that ultimately created space for the deployment of an international peacekeeping force and the recognition of Timorese national self-determination. In an era of globalization, ideas and materials spread quickly through improved technological means of communication and transportation and the international system took on a more pluralist tone in the 1990s, occupied by more transnational actors with newfound or regained influence and amplified voices. The United Nations Security Council, regional organizations, NGOs, the media, expatriates and exiles, diasporic communities, and religious organizations were critical to ultimate success; the non-state groups supplied money to aid compatriots and worked the diplomatic front to lobby governments and international organizations for recognition. Although geopolitical and strategic decisions by realpolitik foreign policy practitioners in the United States and the Soviet Union during the Cold War often ignored the human rights abuses in client states, part of the structure of international relations always contained a minority voice favoring humanitarianism and human rights that prevented East Timor from totally disappearing from the international agenda. While many other global conflicts were entangled in complex geopolitical spaces, possessed vital natural resources, or simply failed to capture the imagination of human rights networks, East Timor was placed on the radar screen due to the soft power of the United Nations and international law.33 East Timor’s unresolved status at the United Nations and legitimate legal claim to independence kept it on the global diplomatic map, becoming prominent in the 1970s and remaining visible to interested observers largely because of open-ended Security Council resolutions and claims in the General Assembly of the right to national self-determination. Indonesia, Portugal, and the United Nations discussed a resolution to the Timor issue in 1983, though little substantive diplomatic progress occurred. ASEAN lacked the capability and political will to deploy well-coordinated security forces for a robust peace operation and was hindered by its own ideology of noninterference in the domestic affairs of member states. Thus, ASEAN neglected the opportunity to play a major role in regional conflict

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resolution or to deflect the pressure that was brought to bear on presidents Suharto and Bacharuddin Jusuf “B.J.” Habibie by the international community; as an internal matter of a member-state, the East Timorese transition to independence was in effect off limits.34 Yet without some degree of recognition at the international level, the East Timorese would likely have remained in the static situation of their former Indonesian compatriots in Aceh and West Papua, or other nonstate political movements toiling in relative obscurity. Timorese exiles in Australia, Mozambique, and Portugal fulfilled various roles to ensure diplomatic support, with José Ramos Horta leading the effort. After Indonesia’s invasion, Portugal steadfastly supported its former colony at the United Nations, which continued to recognize Portuguese authority over East Timor despite the de facto Indonesian occupation. On 22 December 1975, UN Security Council Resolution 384 was passed supporting East Timor’s right to selfdetermination and UN Security Council Resolution 389 of 22 April 1976 was adopted urging Indonesia to withdraw and reiterating Portugal’s role as administrator of the non-self-governing territory.35 Moreover, the ability of FRETILIN to sustain military discipline and resistance, their ranks aided indirectly by government cruelty, ultimately forced international actors to alter the nature of their involvement from supplying weapons and military assistance to conflict resolution or humanitarian intervention.36 Otherwise, the international community may have simply accepted foreign aggression as a fait accompli and ignored the long suffering Timorese people. The successful use of media imagery, advocacy by human rights NGOs, activists, and religious organizations and growing public support in key countries formed a constituency supportive of change and the end of externally-contrived warfare and provided the impetus for the deployment of a UN-led peace operation. The Catholic Church publicized Timor’s plight in international forums and Pope John Paul II’s October 1989 visit and mass, after much political wrangling among the Vatican, Jakarta, and the Dili diocese, solidified the status of the bishops in East Timor, a vital source of independent thought during the Indonesian occupation. Thus, the Catholic Church, formerly an elitist relic of the Portuguese colonial legacy, became a catalyst for opposition to Jakarta’s tactics and a global voice for East Timor’s oppressed almost overnight.37 Activists and academics like Noam Chomsky documented atrocities and criticized foreign policy failures, and their efforts were occasionally assisted by media images of atrocities or resistance that exposed gross human rights abuses in a more visible and visual way and spurred a greater awareness among outside observers. Nongovernmental

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organizations had more resources to spend, grew more sophisticated in fund-raising and lobbying, and developed more media savvy to keep their agenda in the news. The East Timor Action Network (ETAN) favored Timorese self-determination and limits on external funding for Indonesia’s military operations in the region, while the Asia-Pacific Coalition on East Timor (APCET) and the International Federation for East Timor (IFET) promoted the Timorese cause.38 The media was instrumental in expanding this network of activists around the world. The killing of five Australian journalists (the ‘Balibo Five’) in October 1975 led to inquiries among the Australian public, though the murders were largely ignored by the Australian government, and British journalist Max Stahl’s secret video footage of an Indonesian attack on demonstrators at Santa Cruz cemetery began a muffled but growing campaign to promote Timorese independence.39 During a visit of foreign diplomats in November 1991, mourners for fallen comrade Sebastio Gomes began their pilgrimage of protest from Dili’s Iglesias Motael to the ornate above-ground cemetery of Santa Cruz, where Indonesian troops massacred around 150-250 Timorese demonstrators and left scores more missing. The Norwegian Nobel Committee’s decision in 1996 to award peace prizes to activists such as Bishop Carlos Felipe Ximenes Belo and Ramos Horta cast an even brighter light on these otherwise forgotten atrocities. Without the Cold War balance of power to shape foreign policy interests, a more sympathetic outlook toward victimized populations gained traction. As the Cold War concluded, Indonesia’s benefactors were increasingly uncomfortable with the brutality of its occupation. The 1991 Santa Cruz massacre even led the United States to suspend certain military training programs. In fact, an East Timor SelfDetermination Act was drafted (though not enacted) in the U.S. Congress and all military ties, including International Military Education and Training (IMET), were severed in 1999.40 Meanwhile, in 1997, the illusion of East and Southeast Asia’s unmitigated economic expansion burst in a financial contagion of non-performing bank loans, over-extended real estate markets, unregulated currency speculation, and foreign capital flight. Beginning in Thailand, the ‘Asian tiger’ economies of Indonesia, the Philippines, and South Korea quickly collapsed, in some cases leading to civil unrest. In Indonesia, social movements against ‘korupsi, kolusi, dan nepotisme’ (corruption, collusion, and nepotism, or KKN) and growing calls for democracy converged with the economic turmoil of the Asian financial crisis and its consequent restrictive International Monetary Fund (IMF) regulations, and forced long-time president Suharto to resign on 21 May 1998. Of

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course, if international actors had adopted a moratorium on funding Indonesia’s military, imposed strict sanctions, enforced an arms embargo, or simply applied diplomatic entreaties in the 1970s and 1980s, the conflict might have been resolved sooner. Although the violence resulted largely from foreign manipulation and intervention, the peace process was wholly dependent on continued pressure and incentives from often the very same global or regional powers: Australia, the United States, and others. Indonesia’s Withdrawal and the UN Transitional Authority

Compared to other atrocities committed in East Timor, the violence associated with Indonesia’s withdrawal was relatively minor, but still caused enormous international uproar since foreign observers were on the ground to witness the carnage. In spite of the insecure environment following Indonesia’s punishment of the pro-independence tally, international negotiations resulted in a fairly broad and invasive UN mandate to administer sovereignty. The United Nations built peace out of the ashes of destruction, and, most importantly for the Timorese people, the intervention of the international community freed East Timor from the central authority of the Indonesian government. If not for the actions of the United States and other interested nations in 1999, the weakening guerrilla movement in Timor’s highlands may have collapsed under the weight of Indonesia’s scheme to quell resistance through a combination of murder, arrest, and co-optation. East Timor would likely be another rebellious province within an, albeit democratizing, Indonesian state where the armed forces still hold enormous sway and the archipelagic hinterlands are kept in line with government forces and local militias. In effect, the United Nations did what Portugal should have done in 1975, by providing a guided process of decolonization that resulted in self-governance. In order to assuage international condemnation and assuming a prointegration tally, Suharto’s temporary successor Habibie hastily called for a referendum on autonomy in East Timor to take place 30 August 1999. Thus, on 5 May 1999, Indonesia and Portugal formally agreed to allow UN Secretary-General Annan to authorize a popular consultation with the understanding that Indonesia would be responsible for security during the balloting in its turbulent province. The question posed was ‘Do you accept the proposed special autonomy for East Timor within the unitary state of the Republic of Indonesia?’ or, ‘Do you reject the proposed special autonomy for East Timor, leading to East Timor’s separation from Indonesia?’ To prepare for the polling, the United

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Nations Advanced Mission in East Timor (UNAMET) was deployed a month later following UN Security Council Resolution 1246 of 11 June 1999.41 In July 1999, Indonesia detailed a contingency plan for defeat in its Garnadi document, which came to fruition later that year following the referendum in favor of independence ending Indonesia’s 23-year occupation.42 Ninety-eight percent of the population turned out and 78 percent opted against limited autonomy and thus in favor of independence. In September 1999 during Operasi Sapu Jagad (Operation Clean Sweep), rampaging Indonesian-sponsored militia and the Indonesian military ransacked the province, burning, looting, and pillaging as approximately 300,000 refugees fled or were forcibly deported across East Timor’s western frontier into Indonesia while perhaps 100-200,000 others were internally displaced in the mountains.43 An estimated 70 percent of all private homes, public buildings, and essential services were destroyed (see Figure 2.1); the carnage cost over one thousand lives and resulted in millions of dollars worth of economic damage.44 Figure 2.1

Destroyed Buildings in East Timor

Left: Department of Information; Right: Department of Finance and Taxation. Photos: by the author, Dili, East Timor.

With options generally limited to resistance or collaboration, the indigenous population carried out most of the violence. João Tavares, a former liurai and self-proclaimed head (panglima), led an umbrella organization called the Integration Fighting Forces (Pasukan Pejuang Integrasi, PPI) of at least 11 militia groups active in East Timor, largely formed through payments and force. Many pro-Indonesia militia members who participated in the 1999 violence were once antiIndonesian FRETILIN resistance fighters or supporters as far back as

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1975. In other cases, militia leaders simply captured villagers to swell their ranks regardless of political persuasion, adeptly using traditional spiritual beliefs and customs to intimidate and gain allegiance. During the Trial of Domingos Mendonça at the Special Panels for Serious Crimes, witnesses recounted how the Ablai (Aku Berjuang Lestarikan Amanat Integrasi, Struggle for a Perpetual Integration Mandate) militia mixed pig’s blood with the blood of villagers and soaked the mixture in a pro-autonomy flag, before forcing more than 200 villagers, including men, women, and children, to drink the blood. The militia members then questioned, “Do you believe in the UN? When the UN comes, your blood will burn unless you come to us.”45 Militia members then forcibly took blood from six known members of the clandestine resistance, made a cross of blood in the soil using an Indonesian flag, and asked whether the terrified villagers believed in the CNRT (Conselho Nacional de Resistência Timorense, National Council of Timorese Resistance).46 Within this context, UN Secretary-General Annan facilitated a diplomatic coalition that included Australia, the United States, ASEAN, the IMF, and the United Nations to influence Indonesia, particularly at the annual Asia Pacific Economic Cooperation (APEC) meetings from 10-13 September 1999 in New Zealand. Strong pressure on Indonesia by U.S. President Bill Clinton and other interested states thus encouraged Indonesia’s acquiescence to a UN peace operation, which President Habibie accepted on 12 September, and the deployment of the Australian-led INTERFET to establish security in the restive province prior to the UN arrival.47 The United Nations Transitional Authority for East Timor (UNTAET) was authorized in October 1999 and was on the ground by 19 November, with Lieutenant General Boonsrang Niumpradit of Thailand as Force Commander. According to UN Security Council Resolution 1272 of 25 October 1999, UNTAET had overall responsibility for the administration of East Timor and was empowered to exercise all legislative and executive authority, including the administration of justice, under a guided process that resulted in independence on 20 May 2002 and membership in the United Nations four months later on 27 September.48 At the end of UNTAET’s mandate in 2002, three follow-on missions were deployed, UNMISET under UN Security Council Resolution 1410 of 17 May 2002, the UN Office in Timor Leste (UNOTIL) under UN Security Council Resolution 1599 of 28 April 2005, and finally the UN Integrated Mission in Timor-Leste (UNMIT) through UN Security Council Resolution 1704 of 25 August 2006.49 Despite the ongoing, albeit scaled down, international presence, political and criminal violence and socioeconomic insecurities continued to plague East Timorese society.

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The subsequent chapter analyzes a chronological shift in the nature of international intervention from the pernicious activities described prior to categorically different attempts at peacekeeping and peacebuilding. Though not of their own volition, Indonesia’s precipitous withdrawal failed to prepare the Timorese people for an orderly transfer of sovereignty much as occurred in 1975. This time the vestigial Portuguese legacy of colonial paternalism was re-patterned as a promise of benevolent modernization and once again outside actors sought to alter local practices and culture in a top-down nation-building process emphasizing the new liturgy of good governance, capacity-building, and sustainable development instead of accepting local realities and customs. Notes 1. Small politically or ethnically divided islands have been a recurrent source of violent conflict this century, as Ireland, Cyprus, Sri Lanka, Mindanao, and to a lesser degree Hispaniola can attest. The degree to which East and West Timor are distinct and considered separate will affect the viability of a divided island. 2. Nearly all of the languages spoken in East Timor are from the Austronesian family, specifically Malayo-Polynesian, though several are Papuan, such as Fataluku, Makasae, Makalero, and Bunak. Suggestions are that the Melanesians arrived from Papua first, perhaps around 2000 B.C.E., followed three millennia later by Austronesian speakers from Ambon, Celebes, and the Moluccas. See Ormeling, The Timor Problem, pp. 66-67; Taylor, Indonesia’s Forgotten War, p. 6; Hicks, Tetum Ghosts and Kin; and Gunn, A Critical View of Western Journalism and Scholarship on East Timor. 3. Other smaller ethnic groups in East Timor include Negritos, Africans (from intra-colonial migration), Indians, Chinese, and various Indonesian groups. The importance of the Timorese sandalwood trade attracted Javanese, and later Chinese, traders to the area, the former beginning over a millennium ago. See also Gunn, Timor Loro Sae, pp. 30-50. 4. Gunn, Timor Loro Sae, p. 38. 5. Ibid., p. 38. 6. Korps Pegawai Republik Indonesia Propinsi Timor Timur, Duapuluh Tahun Timor-Timur Membangun, p. 11. Portugal’s often laissez-faire attitude toward its colonies allowed the maintenance of traditional local religious beliefs, which to some extent were melded together with Catholic iconography into a distinctive local faith. 7. Taylor, Indonesia’s Forgotten War, p. 12. 8. George Aditjondro, cited in Singh, East Timor, Indonesia and the World, pp. 237-238. 9. Jardine, East Timor, p. 20. 10. The Topasse were the “off-spring of Portuguese soldiers, sailors, and traders from Malacca and Macao, who intermarried with the local women of [the neighboring island] Solor.” Taylor, Indonesia’s Forgotten War, p. 3, citing

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C. R. Boxer, “Portuguese Timor: A Rough Island Story, 1515-1960,” History Today 10, no. 5 (May 1960): 349-355. While not totally accepted by either the Portuguese or the indigenous population, occupying a status in between, the Topasse became and remained a significant force in Timor. The Netherlands also impacted the native culture and religious identity; despite Dutch acceptance of the status quo for much of its period, foreign dominance in and of itself reduced the authority of the god-kings. The mestiço population also included other subjects of the Portuguese empire: Chinese, Africans, and Goans. 11. Taylor, Indonesia’s Forgotten War, p. 65. 12. The population in East Timor remained traditionally low due to harvest failures, epidemics, periodic tribal wars, and slavery. Smallpox and cholera outbreaks were particularly acute and malaria and venereal diseases were significant as well. João Saldanha attributes this low population to Timor’s relative inaccessibility, low nutrition levels, many residences in the mountainous interior far from access to medical facilities, and the loss of life during anti-Portuguese revolts. Saldanha, The Political Economy of East Timor Development, p. 256. 13. Portugal was more interested in oil-rich Angola during its 1975 decolonization process. 14. Taylor, Indonesia’s Forgotten War, pp. 7, 11. 15. Gunn, Timor Loro Sae, p. 47. 16. Taylor, Indonesia’s Forgotten War, p. 11. 17. For a longer discussion of the 1959 movement, see Janet Gunter, “Communal Conflict in Viqueque and the ‘Charged’ History of ’59,” The Asia Pacific Journal of Anthropology, 8, no. 1 (March 2007): 27-41. 18. FRETILIN’s platform was in Tétun and read ‘multiracial living without discrimination of race or religion.’ 19. Helen Hill, Stirrings of Nationalism in East Timor, Fretilin 1974-78, pp. 178-179. 20. The UDT-APODETI alliance was joined by two other small parties: KOTA: Klibur Oan Timor Aswain (Association of Timorese Warrior Sons) and the Labour Party (Partido Trabalhista). 21. Jolliffe, East Timor, p. 64. 22. Suharto also gained the acquiescence of Australia for the invasion. Ford and Kissinger instructed the Indonesians to perform the invasion after they had departed and to finish the job quickly. Suharto also pushed for East Timor’s integration at a 5 July 1975 meeting at Camp David and in December 1975 the two countries discussed both Cambodia and East Timor. Kiernan, “War, Genocide, and Resistance in East Timor, 1975-99,” pp. 199-234. 23. Chega!, Executive Summary, pp. 70-71. 24. Schwarz, A Nation in Waiting, pp. 204-205. An Indonesian military census showed an October 1978 population of 329,271, though many East Timorese had by then fled to rebel areas in the forests and mountains. Inbaraj, East Timor, p. 69. The CAVR Report identified approximately 102,800 conflict-related deaths in East Timor from 1974-1999. 25. Nelson Belo explained that Lobato committed suicide rather than be captured by Indonesia, though when his body was found, Indonesian soldiers had severed his head and sent it to Jakarta to confirm his death. Belo, interview by the author.

Colonialism, Cold War, and Crimes Against Humanity 57

26. The Association of Southeast Asian Nations (ASEAN) was founded in 1967 by Indonesia, Malaysia, the Philippines, Singapore, and Thailand as an anti-communist front, though it was primarily an agenda setting organization. 27. Military assistance was briefly suspended in September 1999. 28. Aceh’s attempt to break free from Indonesia has thus far been unsuccessful, in part because of its value as a resource-rich province, its geographical location is more integral to the state, and its population is overwhelmingly Muslim. 29. Islam has increasingly become a focal point for opposition political movements despite the Indonesian government’s instrumental linkages to major Muslim social groups. 30. Today, 88 percent of Indonesians are Muslim and 90 percent of East Timorese are Catholic, though religious practices often incorporate ancient mysticism and ancestor worship to create a hybridized faith that distinguishes the culture. Von der Mehden, Religion and Nationalism in Southeast Asia, p. 10. 31. Gusmão was born José Alexandre, but changed his first name to Kay Rala after becoming president. 32. CNRM was later changed to CNRT, replacing ‘Maubere’ with ‘Timorese,’ as the former word represented the ‘common people’ and was not universally accepted across the country owing to linguistic and ideological differences among participants in the popular front. 33. Joseph S. Nye, Jr. used the term ‘soft power’ in his book, The Paradox of American Power: Why the World’s Only Superpower Can’t Go It Alone (Oxford, UK: Oxford University Press, 2003). Nye differentiates the hard power of military force with the soft power of culture, values, and institutions that provide subtle influence and persuasion, leading to cooperation. The United Nations represents an institution that can use its own soft power to make marginal changes in the international system. 34. Wade Huntley and Peter Hayes, “East Timor and Asian Security,” in Tanter, Bitter Flowers, Sweet Flower, p. 178. 35. S/RES/384 (1975), UN Security Council Resolution 384 of 22 December 1975 and S/RES/389 (1976), UN Security Council Resolution 389 of 22 April 1976. 36. FRETILIN’s capacity to withstand Indonesia’s military occupation is more impressive since it was done on the cheap, with little to no foreign aid. 37. After his appointment in 1983, Bishop Belo spoke out against military abuses and published a letter the following year stating that the only peaceful solution for East Timor would be “respect for the right of a people for selfdetermination.” In 1985, the Council of Priests in Dili released an official statement that “the Church bears anxious witness to facts that are slowly leading to the ethnic, cultural and religious extinction of the people of East Timor,” and in 1989, Belo wrote a letter to the UN secretary-general declaring that, contrary to the position of the Jakarta government, the people of East Timor have never chosen integration with Indonesia, “and we continue to die as a people and as a nation.” Belo even withdrew his priests from pancasila indoctrination sessions organized by the military. In essence, the Catholic Church was the only accepted organization independent of Indonesian control. As its head, Belo became a chief representative of Timorese nationalist aspirations. Taylor, Indonesia’s Forgotten War, p. 154, citing Statement of the Apostolic

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Administrator and the Presbyterian Council of the Dili Diocese, 1 January 1985, p. 2. 38. Charles Scheiner, “Grassroots in the Field: Observing the East Timor Consultation,” in Tanter, Bitter Flowers, Sweet Flowers, p. 110. 39. For a full rendition of the Australian government’s cover-up of the journalists’ murders, see Jolliffe, Cover-Up. 40. Two Indonesian generals were dismissed as a result of the investigation and ten police and military officers were given 8-18 month sentences. 41. S/RES/1246 (1999), UN Security Council Resolution 1246 of 11 June 1999. 42. Allan Nairn, “U.S. Support for the Indonesian Military: Congressional Testimony,” in Tanter, Bitter Flowers, Sweet Flowers, p. 169. 43. Januar Achmad, “East Timorese Refugees in West Timor,” in Fox and Soares, Out of the Ashes, p. 214. Geoffrey Gunn identifies up to 24 militia groups, including: Aitarak, Besi Merah Putih, Mahidi (Live or Die for Integration), Saka, Team Sera, Team Makakit, Team Ablai, Tatarah, Loromea, Commando Darah Merah, AHI, Laksaur Merah Putih, Naga Merah, and Halilintar. On 19 April 1999, the Aitarak and Besi Merah Putih militias allegedly attacked Dili. 44. Horst Rutsch, “East Timor: Toward a New Nation,” UN Chronicle (22 December 1999). 45. Trial of Domingos Mendonça, author’s observations, Dili, East Timor, 12 August 2003. This trial was generally called the “Same case” since the crimes occurred in Same, East Timor. On 13 October 2003, Mendonça was found guilty of crimes against humanity and sentenced to ten years and six months imprisonment. For more information, see JSMP press release on the case at http://www.jsmp.minihub.org/News/141003.htm. 46. Trial of Domingos Mendonça, author’s observations, Dili, East Timor, 12 August 2003. 47. UN Secretary-General Annan gave the Indonesian government 48 hours to restore order or face an international peacekeeping force. The added diplomatic pressure of the Clinton administration and the IMF contributed to Indonesia’s acquiescence. 48. S/RES/1272 (1999), UN Security Council Resolution 1272 of 25 October 1999. 49. S/RES/1410 (2002), UN Security Council Resolution 1410 of 17 May 2002; S/RES/1599 (2005), UN Security Council Resolution 1599 of 28 April 2005; and S/RES/1704 (2006), UN Security Council Resolution 1704 of 25 August 2006. S/RES/1867 (2009), UN Security Council Resolution 1867 of 26 February 2009 extended UNMIT to 26 February 2010.

3 As Good as It Gets? The International Rebuilding Effort This chapter evaluates whether UN peacebuilding has achieved peace, met its own mandates, and addressed the root causes of violence in East Timor. It considers these efforts by grouping standard components of peacebuilding operations such as humanitarian relief, refugee return, security, elections, and socioeconomic development into two approaches: long-term and short-term. Thus, UN peacebuilding is judged according to its effectiveness at establishing a minimal negative peace in the short-term, but also at reaching a long-term, multidimensional peace that addresses the root causes of violence, such as under-development, nationalism, lack of respect for human rights, and weak civil society. The United Nations most successfully addressed the direct effects of Indonesia’s withdrawal: returning refugees, reestablishing security, rebuilding basic infrastructure, and recreating a government through democratic elections. The baleful consequences of Indonesia’s invasion and occupation were not properly prepared for: training professional security forces, ensuring transparent governance to diminish corruption, participating in a plan to consider identity concerns (especially a language policy), and immediately accommodating demands for justice. Wholly five distinct UN missions have operated in East Timor since 1999, six if the initial UN-authorized intervention force is included, symptomatic of the lack of planning for a durable solution. The two primary multilateral operations in the interim environment were both five-month interrelated operations: UNAMET (June-November 1999) and INTERFET (September 1999-January 2000). Headed by Ian Martin of Great Britain as Special Representative of the Secretary General (SRSG), UNAMET was mandated under UNSC Resolution 1246 to organize and conduct a popular consultation, to inform the Timorese people about the proposed plan, to monitor the fairness of the political environment, and to advise the Indonesian Police and to maintain contact with the Indonesian Armed Forces. In conjunction, INTERFET was a multinational coalition of 22 states led by Peter Cosgrove of Australia as Force Commander and operated at its peak with 11,000

59

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troops. Within months, authority over the transitional administration would be handed over to UNTAET; its two and a half year mission was the primary peacebuilding operation. Though unrest followed the initial UN withdrawal in 2002, the decision to extend the UN presence through three follow-on missions (UNMISET, UNOTIL, and UNMIT) reinforced the international commitment to peace and democracy and lessened internal fears of Indonesia destabilizing the new country. This sustained UN presence allowed ongoing training and institution-building in a variety of sectors, yet disenchantment with the failure to gain a postconflict peace dividend signaled an initial threat to lasting peace. Figure 3.2 (opposite page) illustrates the basic fundamentals of the UN peacebuilding missions in East Timor.1 This chapter does not seek to pronounce a judgment on each of these separate authorities, but rather approaches the UN-authorized and administered processes in their totality. Throughout, it also emphasizes the need for the international community to understand and abide by local cultural values and take account of the need to empower the indigenous population. Particular attention is paid to evaluating the ability of the United Nations to reach the goals set out in the various mandates, primarily UNTAET’s mandate. Ironically, the mandate of the last and much smaller UNMIT included 14 provisions in enormous detail and over a wide variety of sectors, whereas UNTAET’s mandate described six general responsibilities (see Figure 3.1). Ultimately, the chapter asks ‘Did the United Nations help to create a peaceful state and society capable of self-governance? Figure 3.1

UNTAET Mandate

• To support capacity-building for self-government • To ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance • To assist in the development of civil and social services • To provide security and maintain law and order throughout the territory of East Timor • To establish an effective administration • To assist in the establishment of conditions for sustainable development

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Figure 3.2

UN Missions in East Timor

Components

Characteristics

UN Advance Mission

UNAMET (June-September 1999)

UN-authorized Intervention

INTERFET (September 1999-January 2000)

UN Transitional Authority

UNTAET (October 1999-May 2002)

UN Follow-on Missions

UNMISET (May 2002-May 2005) UNOTIL (May 2005-August 2006) UNMIT (August 2006-ongoing)

Size of Mission (people at peak)

UNAMET military/police: 321, civilian: 632, local: 668 UNTAET military/police: 7,687, civilian: 737, local: 1,745 UNMISET military/police: 5,547, civilian: 465, local 856 UNOTIL military/police: 75, civilian: 55, local: N/A UNMIT military/police: 1,748, civilian: 438, local: 933

Special Representative of Secretary-General (SRSG)

UNAMET: Ian Martin (United Kingdom) UNTAET: Sergio Vieira de Mello (Brazil) UNMISET: Kamalesh Sharma (India) UNOTIL: Sukehiro Hasegawa (Japan) UNMIT: Atul Khare (India)

Expenditures

UNAMET: $50 million UNTAET: ≈ $2 billion UNMISET: $565 million UNOTIL: ≈ $300 million UNMIT: ≈ $450 million

Fatalities

43 (UNTAET 17, UNMISET 21, UNMIT 5)

Referendum/Election Turnout

98% (1999), 91% (2001), 81% (2007)

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Upon arriving at Dili’s Presidente Nicolau Lobato airport in 2003, I was struck by how undeveloped the capital city was as we drove the five kilometers from Comoro to downtown; in part, the conditions reflected the legacy of a war-torn society. At that time, not even a solitary stoplight managed traffic, an assortment of imported used cars served as taxi cabs, slowly trolling for fares while a handful of motorbikes sped through the dusty roads. After nearly four years of UN rebuilding, little tangible socioeconomic development was apparent. Arriving again four years later in 2007, private cars now graced the road, 10-20 stoplights had been placed on occasional intersections, while taxi and motorbike traffic had remained steady. What stunned me on my most recent arrival were the after effects of the ongoing violence and civil unrest that accompanied a 2006 power struggle between the president and the prime minister. The arid surroundings of the Comoro airport, situated distant from the urban activity and political demonstrations, was now adjacent to a camp of internally displaced persons (IDPs) that easily numbered in the thousands. Children desperately grasped at suitcases, hoping that by merely touching the bag they might earn a U.S. dollar for their valet service in helping to place luggage into the auto’s boot. Occasionally, a hostile youth might mischievously throw a rock at a departing car for failing to pay up for the services performed, real or imagined. Adults gazed at the foreign arrivals, dressed smartly for their role as official observers in the upcoming election, leaning on the wobbly fence that provided airport security and a secondary barrier to keep out the refugees. A half dozen UN police officers and perhaps the same number of Timorese police patrolled the airport interior, chatting with old friends fresh from their respite outside the dusty, hot Dili summertime. The camp itself had a small market, selling imported sundry items: cigarettes, bottled water, warm cans of beer and soft drinks, phone cards, and other miscellaneous goods. Laundry hung on the lines to dry, UNHCR tents provided some shade from the scorching sun, children played tag while adults waited out the afternoon heat. A full year since the outbreak of renewed violence, no sign of a return for the displaced was imminent; in fact, they had strategically chosen the airport location for its visibility near Australia’s Camp Phoenix as well as its accessibility as a major escape route should extreme levels of violence return. These refugees had arrived from the eastern part of the country and were reluctant to return home, causing concern regarding their allegiances within the developing ethnic communities that had been formulated following independence. Of all the postconflict challenges faced by the United Nations and the Timorese immediately after the

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1999 referendum, refugee return was one of the most successful operations, repatriating approximately 300,000 East Timorese with only negligible resistance upon their arrival. It was a peaceful return, if only a tenuous reconciliation. Now, to see renewed political violence trigger a new migration of close to 100,000 was a great disappointment. It only took fifteen minutes for my judgment on the UN peace operation more than eight years on to dip toward a negative outlook. Passing several more of the nearly 60 camps on the ride into Dili further eroded any hopeful views that I may have entertained, despite the orderly traffic routes created by the new timed stoplights.2 In the ensuing weeks, brief interviews with camp dwellers revealed consistent themes: they were not leaving anytime soon, were unhappy with Australia’s military presence, were disappointed with the Timorese political leadership, and saw rebel leader Major Alfredo Reinado as the latest resistance leader to serve as a mythic hero. This snapshot is only one of many that illustrate the ongoing challenges to building peace in postconflict East Timor. Adapting to the Cultural Context

During an occupation, the behavior of imposed personnel will always be at issue, as well as the cultural changes that accompany this presence. The interaction between international and local can have a tremendous impact on domestic public opinion toward all aspects of the peacebuilding project; distinctions are rarely made between which agency or organization a foreigner represents. The lifestyle of the expatriate community, UN staff, NGO members, and others easily offends local sensibilities. In fact, nationalism may have increased due to the behavior of international personnel and the paternalistic nature of the foreign occupation. As one Timorese professor explained, “The internationals do not know history here; the spirit of nationalism causes some to want foreigners to leave.”3 United Nations staff enjoy high salaries, live in relative comfort with housing often separate from the ordinary community, make purchases in the UN compound at subsidized prices, hold immunity from prosecution (unless lifted by the Secretary-General’s Special Representative), drive costly sport-utility vehicles (SUVs), work in air-conditioned offices with enviable vacation time, and generally ignore the local population as they rush to a taxi or eat in an expensive restaurant.4 With a limited temporal commitment and confident in the virtue of their mission, internationals can view their tenure as a saintly holiday; the benevolent goals of humanitarianism masking any internal contestation about privileged status and appropriate behavior in a foreign culture.

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This global/local dichotomy seemed to be generally acceptable until social mores were threatened, as when the host country becomes a site of perceived decadence: parties, drinking, and sex. Literally above the law, occasional cases of drink-driving, speeding, hiring of prostitutes, and sexual abuse by internationals foment tension. The appropriate behavior of UN personnel may have even declined as the mission became smaller and the immediacy of rebuilding declined. The Special Representative of the Secretary-General during UNMIT Atul Khare lectured that ‘We are GUESTS in this country and we are present here to help the people recover from the trauma of conflict, not to perpetuate it.”5 Internationals spend much of their leisure time sunbathing on the beach and frequenting nightclubs in the evening for rest and relaxation. Many Timorese would awake to chickens crowing at dawn and would gawk at malae passed out on the beach amid the strewn garbage and empty liquor bottles, mildly bemused at the sight. The pastime of many UN police that I observed included an impressive consumption of alcohol before, during, and after patrols. In less than two months in the spring of 2007, 80 traffic accidents occurred where UNMIT vehicles were the only ones involved. Peacekeepers were also criticized for poor discipline and harassment of the local population, including taking advantage of women sexually. In a notorious case, Jordanian peacekeepers in East Timor offered food and money in exchange for sexual favors from women, boys, and prostitutes from West Timor. In one instance, Australian and Jordanian peacekeepers drew weapons on each other; two Jordanian peacekeepers were soon expelled.6 Internationals sometimes marry and/or have children with local women, only to leave when their contract expires. In the aftermath, families are ashamed and these children may be orphaned to avoid the stigma. A UN report on such behavior in Timor discovered the sexual abuse of children, leaving of babies, and bestiality.7 After a series of drink driving incidents and the growth of over a dozen brothels primarily serving UN staff and NGO workers, the United Nations imposed an 11pm curfew for its personnel. While one can understand the monotony of a posting in a rural hinterland, disconnected from the local populace and lacking the authority to arrest or use force, the collection of these isolated events undermines the credibility of the peacebuilding project in the eyes of Timorese, particularly the degree to which locals felt that internationals were competent for such an advisory and mentoring role. The behavior and attitudes of foreign personnel also changes the local culture, especially of the younger generation and the urban population most affected by the foreign presence. While some Timorese

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are quite deferent and view outsiders as good Samaritans, for others, pride and hints of nationalism still resonate, with an obvious bifurcation between locals (Timor Oan) and internationals (Malae). Eschewing the use of a private vehicle or public taxi in my leisurely strolls to my interviews, I often encountered a wide range of people on the streets, pausing to converse with younger Timorese who frequently hoped to practice their newly developing English language skills. One day, as I walked along the Dili coastline from Pantai Kelapa to the UN Development Programme (UNDP) office in Kaikoli, some young teenage students near university age hailed me from across the street and ran over to ask ‘Do you speak English?’ Unsure of their motives, I cautiously replied that I did. They then asked if they could practice speaking English with me, to which I willingly agreed. As we talked, they inquired in rather good English (after more than three years of the UN presence, English speaking ability by many in the capital was quite impressive) where I was from and why I was here, and ‘did I work for the UN?’ I answered that I was a university student here to do research and also had Timorese friends that I was visiting who attended the same university in the United States. The next question from one of the young men was ‘why does the UN hate us?’ As one of the few clear cases where a foreign intervention was well-received by the vast majority of the population (78% had voted for the independence that the international community guaranteed after all), I was frankly startled to hear such a question. After I offered an explanation of how the United Nations came to help and did not hate Timorese, the boys contested that they must hate Timorese because they never stop and chat, never greet them on the street, and always rush past them without making eye contact, and that in Timor no one would do this unless they hated that person. Although I expressed my understanding of their sentiments, I also explained that I was a university student on my own schedule and that I had come essentially for just such conversations, to talk to ordinary people as well as UN, NGO, and nation-state representatives, but that UN staff are in a hurry to go about their business and may not consider to interrupt their time commitments. Such observations from locals were not uncommon in my experiences and public relations (both formally and informally) cannot be ignored in a peacebuilding operation. Goodwill must be authentic and discernable or domestic support for the outside presence will quickly erode. Obviously, the United Nations collectively, even in country, is a polyglot of agencies, ranks, and idiosyncratic personalities from every corner of the globe reflecting widely variant cultures and languages. Yet, as someone who preferred to walk to my destinations (or was too

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cheap to hire a taxi or buy a proper vehicle), I frequently had the streetlevel vantage point of the local population. In a city without a stoplight and dusty one-way roads, large SUVs, trucks, mikrolet buses, taxis, motorcycles, and bicycles competed for the pathway as international personnel rushed along from UN headquarters at the well-fortified Obrigadu Barracks to the various UN agencies (UNDP, UNHCR, etc.) or the few local restaurants catering primarily to the foreign crowd, such as the City Café. Without common rules of the road or police to enforce whatever new norms were being created, one could park anywhere, which usually (and logically) meant directly in front of where you were headed. With apparently busy schedules and people to meet and places to go, the typical foreign worker had neither the time nor the interest for slow marches in the Dili heat to chat with locals in broken English or broken Portuguese, or perhaps to test their own broken Tétun or Bahasa Indonesian in rare cases. As a bystander, one truly felt intimidated when the armored personnel carriers (APCs) rolled into a neighborhood and a small platoon of lightly armed (but heavily packed with gear) peacekeeping soldiers emerged and patrolled through the market, scanning the vicinity for signs of discord. Ordinary Timorese had many stories to share (some real, some perhaps fanciful) on the behavior of UN personnel: aggressive flirtation on the beaches, secret liaisons with local women, hiring of prostitutes, eliciting sex with children, and even claims of bestiality by peacekeepers. Other instances of rude or boorish behavior abound, particularly by personnel from the former colonial power; yet the nature of sexual misconduct (or even simply sexual conduct at all) by foreigners in a local setting risks undermining and eroding all support for the outside presence. Many nations that contribute staff and soldiers are themselves undemocratic countries and do not enforce rigorous standards of professional conduct among their military personnel.8 The local population must adapt to the diversity of national styles and cultures present in any typical UN operation and quickly develop stereotypes and generalizations toward certain national personnel (though many of those interviewed differentiated UN personnel by nationality, these views are not divulged here). The encounter between international norms and values and those of the indigenous population may have unforeseen consequences. The paternalism and privilege of foreigners sometimes lead expatriates to adopt overly self-assured demeanors of cultural superiority and to cultivate almost savior-like qualities. An ironic twist underlies the ongoing influx of new ideas coupled with foreign arrogance. Portuguese missionaries believed in the supremacy of monotheism and sought to save the souls of the uncivilized, as they

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replaced, and nearly destroyed, various indigenous animist religions with a conservative and hierarchical Catholicism. Ironically, the new ‘colonials’ from the West this time brought doctrines of secularism and humanism, finding the local Catholicism quaint or backward. By contrast, the devoutly Catholic populace was often troubled by the foreigners’ lack of faith, seeing a Christian bond as elemental to the purpose of these benevolent interventionists. Throughout the long history of Western state- and nation-building, the gap between tradition and modernity remains problematic in subject societies, always perceived to be a step behind the times. Kimberly Marten Zisk likened peacebuilding to a new form of colonialism, though she recognized that imperialism was designed to take resources from the colony for the benefit of empire, while peacebuilding seeks to make countries more self-sufficient.9 Unlike earlier colonial eras dominated by plunder and religious proselytizing, most common in the Spanish and Portuguese colonies, the early twentieth century’s liberal imperialism and more ‘ethical’ policies practiced by France, Great Britain, the Netherlands, and the United States were designed to gain the support of their own domestic publics, which were increasingly disillusioned with the imperial project. The recent UN transitional administrations are analogous to this liberal colonialism, and can be traced to the League of Nations’ mandates and UN trusteeships that provided legitimacy for the care of dependent nations.10 Reliant on foreign aid and assistance to promote economic growth and underwrite political stability, weak states await international systemic changes from the obtrusive imperialism of the nineteenth century to the benevolent humanism of UN peacebuilding. In East Timor, the benign guidance of the ‘international community’ in the late twentieth century imposed formulations of peace and justice based upon 11 Western values rather than indigenous epistemologies. Of course, internationals do interact with locals in other venues and fora, such as the administrative offices of the United Nations or national embassies, though usually these relationships are composed of the welltrained local ‘civil society,’ the desks often staffed by returnees. After successful peace processes, returnees who were educated or trained abroad were often the most vocal proponents of reform and Western values, as bilateral aid funded local NGOs. Among the local population, those who were educated in the West or have developed working relationships with Western NGOs are the primary domestic constituency favoring the international presence. These talented few represented only a fraction of the now swelled population of nearly 200,000 in Dili, the majority had come to perform manual labor or find some other income

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generating activity with all of the new money introduced during the international presence. The inculcation of the rhetoric of Western values (capacity-building, good governance, accountability, sustainable development, and like-minded phraseology) created false or unreasonably high expectations among local NGO workers, risking their personal disillusionment and marginalization from the ordinary population and by the national government who disfavored these NGOs. As Richard Holloway of Catholic Relief Services (CRS) noted, “During the emergency period, there is a psychological effect that says [internationals] are good. Now, there are alternatives,” and thus support naturally diminishes.12 Skeptical members of the humanitarian community scrutinized the behavior of government officials and policies, searching for instances of corruption or failures to abide by international human rights standards. Moreover, local governments often run afoul of the (sometimes naïvely) idealistic or impossibly perfectionist human rights groups pushing for progress and reform, as international practitioners criticize their failure to abide by the new standards of peace, justice, reconciliation, and human rights. Some local NGOs offered balanced critiques of the peacebuilding process. Manuela Perreira of the women’s advocacy NGO Forum Komunikasi Untuk Perempuan Lorosae (Communication Forum for Timorese Women, or Fokupers) summarized her comprehensive views on the UN program as follows: There are lots of problems with the UN, some cases of sexual abuse and the international staff has impunity. Oftentimes, internationals will marry local women and have children then leave. The international police behave ok, but the Timorese police are not good, and there is poor monitoring of both…There are many facilities, but the roads to the countryside remain bad, and there is no sanitary center. For example, one generator had been given to Fokupers but was taken back when UNTAET left; this is not capacity-building…In terms of women, Sérgio [Vieira de Mello, UN SRSG] was good and committed and was optimistic about the status of women; the UN did bring the issue of women up and was good here…For certain people, the UN was a success, such as the UN staff who get paid nice salaries, for Timorese, we remain the same.13

It was clear to me that in a nation that had welcomed external intervention (even from the long demeaned Australians no less), where ordinary people would commonly say to me ‘America good!’ (how often does one hear that when traveling?), that it only took a few ‘bad apples’ or the occasional misdeed to unravel popular support for the

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whole project, particularly if it involved fundamental societal norms, avoiding sexual impropriety being one such principle in a deeply religious society. Such is the nature of an occupation, even a benevolent humanitarian intervention. Nationalist sensibilities and the preservation of traditional cultural values will always be easily offended with an extended foreign presence. I do not believe that UN and NGO staff, protected by the noble guise of humanitarianism or internationalism, realized that such constructs only mitigate the affront to sovereignty and independence, they do not transcend it. In fact, internationals were shocked when riots in December 2002 targeted and burned down the aptly named Australian grocery store Hello Mister, though the foremost cause of the unrest was more due to domestic politics. Having identified the ontological schism between these two categories of local and international, in some instances, UN and NGO workers indeed learned Tétun, adapted to the local ways, and interacted harmoniously with the local population at an interpersonal level. One ex-nun Deng Giguiennto from the Philippines who worked for Catholic Relief Services explained how it took her a long time to become accepted. She had to become accustomed to wearing a skirt (rather than the pants she usually wore, which were considered inappropriate for a woman), accepting criticism that her hair was too short when women’s hair should be long, and working behind the scenes with women to resolve disputes so that men would not lose face. Eventually, through her language fluency and steadfast commitment, she earned the respect of participants in the NGO’s conflict resolution services. She herself felt that the UN was not a success since they did not train locals well enough and only focused on infrastructure erected for foreign access, using an example of how the internationals built the airport using Timorese farmers for manual labor since they were not skilled in construction, then afterward criticized their poor abilities despite not properly training them.14 Another Catholic nun, Sister Bernardita from the Dili Diocese, felt that the United Nations did not transfer technology, was not grassroots oriented, and most importantly, did not understand the local culture, though she saw no alternative to the organization, recommending that it consolidate the number of countries participating since various nationals performed at varying levels.15 Yet in a dramatic representation of the ability to overcome this divide, when the UN headquarters in Baghdad, Iraq was bombed in the summer of 2003 and Special Representative Sérgio Vieira de Mello was killed, I saw Timorese men, women, and children weep. Flags were lowered to half staff, and I heard countless Timorese recount their love and respect for their fallen brethren. This UN civil servant was akin to

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the father of the country, he was essentially free East Timor’s first head of state. Throughout Southeast Asia, those first leaders after decolonization were revered, even if they only served short terms in office like Aung San in Burma. I do not believe that Vieira de Mello is truly the father of the country for Xanana Gusmão most likely retains that signature, but I would equate Timorese attitudes toward him as a kindly uncle that offered tutelage and support. With his gregarious personality and Brazilian roots (Timorese adore Brazilian futbol), he represented a respectful model of behavior and leadership that was not totally absent among international staff. Cultural appropriateness transcends the lessons learned from any case and reappears in the following sections that examine more technical, administrative, and strategic elements of the peace operation. Short-term Peacebuilding: Humanitarian Relief, Refugee Return, and Security

Indonesia’s precipitous withdrawal from its former province provided a final moment of chaos, violence, and instability that required a unique set of short-term policies to establish peace: immediate humanitarian relief, rapid deployment of security forces, and the swift return of refugees. These initial phases of the peace operation were widely accepted as being successful, though each element had its setbacks, more so in navigating the pathway to the broader goals of long-term peacebuilding. A top UN official who worked for each UN mission said “The UN did relatively well at the humanitarian emergency and security has been good, infrastructure had successes and failures, though the justice system was a failure. Overall, the biggest failure was the lack of preparation for the takeover by East Timor.”16 These attitudes seemed to be shared among the general populace as well. According to one Timorese NGO observer, “activists worked very hard during UNAMET, but UNTAET were opportunists.”17 The following sections will briefly weigh the strengths and weaknesses of each responsibility and allude to the growing connection between the immediate desire for peace and stability and the long-term goals of justice and accountability. Humanitarian Relief

Stopping the bleeding is both figuratively and literally the responsibility of the global first responders: humanitarian NGOs as well as national and international aid agencies. Disorder and insecurity surrounded the post-referendum period and a very poor population risked a further

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descent into famine and rioting. After the violence, food aid and food security were the top funding priorities of the UN Inter-Agency Appeal, followed by repatriation and protection; water, sanitation, and shelter; and health and nutrition. Therefore, UNTAET was mandated “to ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance.”18 Relief for those victimized or displaced came quickly; the UN’s Office for the Coordination of Humanitarian Affairs (OCHA) organized the initial effort and primarily the World Food Program (WFP) and the Red Cross distributed food and supplies. Soon after, INTERFET and the UN Humanitarian Operations Centre (UNHOC) coordinated food distribution before giving way to UNTAET’s Humanitarian Assistance and Emergency Rehabilitation (HAER) component which operated until late 2000. The United States Agency for International Development (USAID), the Japan International Cooperation Agency (JICA), and the Australian Agency for International Development (AUSAID) supplied bilateral aid, while dozens of relief NGOs facilitated the disbursement of vital emergency assistance. Although bad weather conditions, poor communications, misdirected airdrops, and an inadequate supply of essential commodities presented obstacles, the delivery of aid was effective and a humanitarian catastrophe was averted.19 Thus, the provision of immediate humanitarian relief was an unquestioned success, though the establishment of security would prove a sterner test for the international community. Establishing Security

Whereas humanitarian relief is relatively value free, the imposition of security forces is rife with controversies. Providing security in strifetorn states seeking to institute order amid chaos is an enormous task and remains one in need of improvement. Security must be established at the outset with the arrival of a peace enforcement or peacekeeping force; yet peacekeeping is not easy duty and fatal dangers are involved, whether on limited cease-fire patrol or disarming active combatants. Opposing factions must be brought under control and a safe environment needs to be crafted to ensure stability for other peacebuilding components to function properly. Indonesia’s military with about 26,000 troops was allowed to provide security for the 30 August 1999 referendum, a decision that would haunt the United Nations when marauding militias forced UNAMET to withdraw to Australia from 6-14 September, as militias stoned UNAMET’s offices in Maliana and looted the remaining compound. On 15 September, UN Security Council Resolution 1264

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authorized a Chapter VII intervention force “to restore peace and security in East Timor, to protect and support UNAMET in carrying out its tasks and, within force capabilities, to facilitate humanitarian assistance operations” using all necessary measures; INTERFET deployed five days later with 3,700 soldiers.20 Lacking a standing UN military, the United Nations failed to achieve a timely deployment that could have reduced casualties owing to its reliance on the chief instigator of violence to maintain order. In such circumstances, the leadership of an outside country may be necessary but problematic, recalling a neo-imperialist attitude or suspicions of underlying national interests. Participation and leadership of this intervention became contentious, as many in the region preferred a greater Southeast Asian role rather than a strictly American, Australian, or European controlled force, illustrating the growing confidence of Southeast Asian states and the nervousness about Australia’s regional preeminence. Indonesia asked ASEAN members to send peacekeepers, but only the Philippines and Thailand responded, while a displeased Malaysia chose to ignore INTERFET completely.23 Yet with the constraints imposed by finding a ‘coalition of the willing’ and gaining Indonesia’s consent, the imposition of multinational forces was relatively quick. Australia was instrumental in deploying a rapid reaction force to stabilize the province after the 1999 violence and was a primary supporter of UNTAET, even covering the initial expenses until Japan delivered $100 million in support for the UN INTERFET Trust Fund.21 As Australia acted to support Timorese independence during Indonesia’s withdrawal, memories of Australia’s former role caused internal skepticism in East Timor and its strategic relations with Jakarta remained ever-present. Australian Lieutenant Colonel Lance Collins, head of intelligence operations in East Timor, caused a controversy after the mission when he revealed how a vital intelligence database was shut down during the INTERFET operation, and only restored on the condition that army intelligence officers cease reporting on Indonesianbacked militia activities in West Timor.22 Nevertheless, with Indonesia’s acquiescence, INTERFET generally performed as well as could be expected in ending Indonesia’s final act of violence in East Timor, as it established domestic stability relatively promptly, facilitated the Tentara Nasional Indonesia (TNI) withdrawal on 1 November, and took no battlefield casualties itself.24 Deputy Force Commander under UNTAET Michael Smith explained that the establishment of security was greatly aided by the separation of combatants (FALINTIL was cantoned and militias had fled to refugee camps in West Timor), the lack of heavy weapons or landmines, and a

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rather compliant domestic populace.25 Thus, with the withdrawal of Indonesian forces, the flight of many pro-Indonesian militia members, and a ‘disciplined and compliant’ FALINTIL, the multinational force also met its mandate to restore peace and security by November 1999.26 As the immediate threats of violence dissipated and the urgency of the security sector diminished, responsibility for order was transferred to UNTAET’s peacekeeping force (PKF) in January 2000, though the transition was not seamless. Unlike Cambodia’s UNTAC mission where an Australian was force commander, in East Timor, after the Australianled INTERFET intervention, each force commander came from ASEAN member-states and every deputy force commander was Australian.27 Lieutenant General Jaime de Los Santos of the Philippines assumed command of the PKF the month following the transfer of authority and was soon replaced by Lieutenant General Boonsrang Niumpradit of Thailand, though the Australian influence remained dominant. Meanwhile, militia activity in the border area with Indonesia grew from July to September 2000. Few casualties to international personnel occurred, but two UN peacekeepers died and three UNHCR workers were killed near Atambua in September 2000. In response, UN Security Council Resolution 319 expressed no tolerance for militias and stability on the border was reaffirmed, and again the militias retreated to the west. Once security was more firmly established, UNTAET peacekeepers and police units patrolled the streets, countryside, and border areas of the small nation and a relatively stable peace held.28 One perceived failing from the perspective of transitional justice was in preparing the foundation for later trials as expressed in Article 1 of UN Security Council Resolution 1264, which demanded “that those responsible for [acts of violence] be brought to justice.”29 The most opportune time to capture major perpetrators was in late 1999 during INTERFET’s peace enforcement operation, but Indonesia was still a necessary partner in maintaining stability. Thus, in the immediate and uncertain transitional environment, peace was singularly prioritized over justice for understandable reasons. Yet in so doing, the chances of significant arrests were greatly reduced and even the opportunity to collect evidence for a future tribunal was missed since war crimes accountability was not part of the original UN mandate. Despite discovering many bodies and remains, since INTERFET’s main purpose was to stabilize the country, it lacked the authority to arrest militias per se. Later, forensic teams for the Serious Crimes Unit (SCU) felt that INTERFET may have compromised evidence due to their divergent focus.30 Yet in regard to what was actually expected of peacekeepers, the commendable efforts of these multinational forces paved the way

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home for the hundreds of thousands of refugees who had fled the destruction. Refugee Return

Maintaining a safe and secure environment within refugee camps is a major difficulty. Refugees are commonly politicized; most countries want them out since they can foment domestic instability and negatively affect interstate relations with neighbors.31 Camps may become a base for further incursions, smuggling operations, or an independent economy dominated by warlords who control access to food and aid and intimidate and terrorize refugees. Troubles were encountered and incidents of violence occurred in West Timor, where militias had great influence and controlled the disbursement of aid.32 Indonesia was not initially responsive to the refugee problem and UNTAET lacked a mandate to operate in Indonesian territory. Nevertheless, short-term camps, such as those in West Timor, were comparatively well controlled through the oversight of the UN High Commissioner for Refugees (UNHCR), though militia members continued to play a visible role in camp life. Part of the success in avoiding a pernicious camp economy based on illegal activities or intimidation was the swift return of refugees back to East Timor. Aside from the notable humanitarian triumph of this element of the UN operation, refugee return had the added value of promoting peace by draining the camps of potentially destabilizing forces. Transferring populations from border camps to areas of instability is an enormous task. Howard Adelman differentiates the complexity of this process based on whether the right of return is to homes or homeland, if the return is voluntary or induced, and organized or spontaneous; most are the latter.33 Return home was difficult in Timor since many refugees had been taken by boat and did not know where they were, nor necessarily how to return, thus requiring even more advanced strategic planning. Thankfully, the East Timor conflict was not ethnic in nature with segregated living conditions and off-limit zones, which made refugee return smoother. The UN agencies and related NGOs (such as Jesuit Relief Services) performed admirably in Timor. The International Organization for Migration (IOM) administered the return of refugees and oversaw the return of 150,000 persons within the first six months and by the end of 2002, nearly all of the more than 300,000 refugees had returned to rebuild their homes and their lives.34 Of course, many returnees discovered their old homes occupied by new residents and personal disputes arose. The later

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inclusion of a reconciliation process helped to facilitate the reintegration of Timorese social life, though these efforts were slightly delayed since the reconciliation commission had yet to be created. Traditional justice remained the most common forum to settle such ongoing land disputes, but tensions remain over the unsettled question of regaining property. Of this cohort, many lived with extended families until they could find or build a new, albeit ramshackle, accommodation. Others took the opportunity to migrate to the urban center, along with their livestock, contributing to the poor conditions of the capital city. Nevertheless, the successful return of refugees not only improved the lives of those displaced, it also avoided the risk of a cross-border insurgency and a greater fragmentation of society. Unfortunately, the hard won victories of the crisis period would not translate into consistent progress in the rebuilding phase; admittedly, a more complex set of challenges arise in shepherding a new nation toward a viable independent state. Long-term Peace Building: Political Reform and Social Change

Only tentative conclusions can be made regarding the extent to which the United Nations addressed the root causes of political violence, though the removal of the Indonesian occupation was certainly the most important element. Nevertheless, a reasonable evaluation is possible a decade after the initial arrival of international forces to stabilize the situation. Peace was basically achieved, though the United Nations did a poor job of addressing comprehensively other primary sources of political violence that may yet impact the nation’s future, largely as a result of the very short nature of the comprehensive phase of the peacebuilding mission. Indonesia’s invasion and nearly quarter century occupation presented a set of structural challenges requiring a long-term multi-dimensional peace operation. The United Nations cannot plan for every contingency, but could have done more to prepare a lasting peace by purposefully addressing the factors that often lead to violence in most societies: identity conflict, poverty, poor education, politicized security forces, centralized government with weak civil society, and a lack of respect for human rights. Appropriate checks and balances, dispersion of power through decentralization, local autonomy, and perhaps a federal arrangement could ease the threat from obtrusive state authority, though the risk of secession and the inability to enforce such a separation of powers could undermines the goal of stability. Peace operations frequently shift power calculations and dramatically affect a broad range of political interests, sometimes determining who gets what, when, and how. Avenues of real or potential

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conflict intersect with a broader competition over the material benefits of governing, while spoilers often seek to undermine international efforts. Old forms of conflict die a hard death, if they are managed at all, while new disputes arise. Although peacebuilding should be alert to both outcomes, its practitioners rarely pay attention to either in this long-term context. Although the new Timorese government was anxious to reach independence and attain full sovereignty, many felt quite insecure about the always impending UN departure. Domestic elites generally welcomed a longer-term commitment, as CAVR commissioner and expolitical prisoner Jacinto Alves offered the metaphor that “the horse still needs the rope around its neck for a little while” and explained how a 25-year struggle would require the continuance of international assistance.35 By contrast, UNMISET’s Special Representative of the Secretary-General Kamalesh Sharma had a different view, “other countries are more important now, and a nation must learn to swim at some point,” explaining why the United Nations must continue to scale down its operation.36 Between the fear of losing the international security blanket and the irritation felt toward the foreign presence, many Timorese from all social strata were able to draw analytical conclusions regarding the UN mission. One Timorese aid worker at USAID identified three UN successes: refugee return (by creating confidence for a safe return), building the foundation of democracy (by encouraging more groups to participate), and forming a government (by allowing Timorese to feel a part of the cabinet transition process). He also noted two failings: not building a clear democratic structure (ignoring the local or community level in the districts) and the failure to match donor pledges with real development in the outlying areas, particularly in terms of housing and infrastructure.37 To this point, donors tend to fund what captures media attention: dramatic events, horrific atrocities, and depictions of children in need; yet donors are fickle too, desiring clear results and thus unlikely to fund preventive measures or postconflict attempts to secure a longterm peace by tackling chronic under-development. East Timor faced the same dilemma of matching significant pledges of support from the international community with the reality of donor fatigue; new priorities and budgetary constraints by funding agencies and states drew funds to other areas and skilled domestic personnel departed for more promising (i.e. more prominent) locales. International commitment to East Timor waned as priorities shifted to conflicts erupting on the global horizon, causing personnel to transfer or move on and leading critics to characterize this humanitarian community as ‘ambulance chasers.’ In the end, donor pledges were slow and rarely measured up, though

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funding was not the determinant factor in success or failure. The next section categorizes four interrelated long-term challenges in East Timor that may destabilize society and restart violence or engender new forms of social conflict within the following spheres: governance, security, development, and preparations for future domestic change. Governance: State and Civil Society

Beyond elections and the formation of representative institutions, the monitoring of respect for human rights and transparent decision-making and support for implementation of constitutional and judicial reforms are important since weak democracies are often prone to civil war. However, governmentally defined national interests often conflict with liberal values of justice, reconciliation, and human rights, as well as democracy, good governance, separation of powers, and checks and balances. Perhaps the most important single element of the UN directive was creating a self-governing territory capable of independent statehood. The UNTAET mandate began with the need “to support capacity-building for self-government,” as well as “to assist in the development of civil and social services” and “to establish an effective administration.”38 The United Nations took on significant administrative duties in East Timor, as it set the state on a path toward self-government through free and fair elections. Under UNTAET, the Special Representative of the Secretary General could enact new laws, promulgate regulations and amend, suspend, or repeal existing ones, as the transitional administration exercised all legislative and executive authority, including the administration of justice.39 This expectation to promote good governance would be included in the follow-on missions such as UNMISET that was designed “to provide assistance to core administrative structures critical to the viability and political stability of East Timor” and later to provide support for governance and elections under UNMIT.40 Mechanisms to promote transparency from within government, and without from civil society watchdogs, were also needed to ensure a modicum of fair play and democratic accountability and reduce the corrupt practices of governmental institutions. Civil society is not directly addressed in the mandates, though in 2006, UNMIT was called upon to enhance a culture of democratic governance and facilitate political dialogue among Timorese stakeholders.41 According to these standards, the administrative functions of self-government were established and have been validated by free and fair elections. These are fundamental achievements and the UN oversight of balloting has been

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excellent time and again. In this view, East Timor has become a viable independent nation-state with a nascent civil society strongly buffeted by international support. These undeniable achievements do mask some failings; the Timorese government has not been particularly effective at delivering services and corruption has risen. As the UN withdrew, competition over the resources of government (as in any society), the conduct of the ruling party, and debates over the proper state-society relationship saw the rise of militancy and renewed violent conflict. Of more fundamental concern is the transplanting of a Western model of government without addressing the cultural norms regarding legitimacy and authority to govern. Legitimacy Historically, political legitimacy in East Timor derived from traditional customs, the clout of former heroes, and respect for the old ways and systems of authority, particularly the birth right of liurai. Today, political legitimacy is based on Western liberal notions of popular sovereignty, enlightened rule, and representative political institutions. Between these two notions of legitimacy lie many post-colonial states, lacking cultural continuity following the destruction of religious and spiritual myths regarding power and authority and absent truly democratic structures. Political violence is more likely to occur during times of rapid social change and insecurity, particularly when the traditional legitimacy of a polity erodes and a new modern legitimacy has not taken hold. Post-colonial states tend toward authoritarianism or single-party rule, lacking the legitimacy that may have existed prior to the colonial encounter and unable to reach modern expectations due to structural constraints and personal leadership choices. To be sure, East Timor is emerging as a post-colonial state, having experienced three distinct occupations: Portuguese, Indonesian, and Benevolent Humanitarianism. Cultural practices and traditional customs are rarely lost, but rather adapted to new realities while incorporating elements derived from the colonial occupation. As traditional legitimacy erodes, leaders have increasingly relied on the coercive force of the state, a network of privileged access to government, and corrupt financial practices that inhibit the development of an independent and non-violent civil society. Political leaders may feel a special connection to their former comrades and choose to reward past loyalties and advance careers based on kinship or shared generational factors. The state holds enormous authority to determine winners and losers in civil service jobs, investment, development projects, aid disbursement, access and rights to natural resources and property, and the privatization of communal land

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holdings. Thus, the government itself will determine the extent to which it respects human rights, tolerates dissent and opposition, and allows the development of a pluralist political system with a vibrant civil society, competing voices, and contested elections. The familiar Rousseauean social contract between state and civil society popularized as a Western archetype was not conceived in the same way or at all in non-Western societies, nor replicated in colonial governance. Although paternalism and patron-client relations have been common elements of political culture throughout Southeast Asia and remain salient even now, traditional legitimacy largely derived from the cultural status of a ruler or system that often reflected a spiritual or metaphysical connection between ruler and people, such as the widespread god-king notion in Southeast Asia. In its overwhelming material strength that diminished the imagined superiority of god-kings, colonialism weakened royal authority and traditional legitimacy and often secularized the monarchy or turned its pageantry and institutions to underwrite the colonial project. Indigenous institutions were modified and their clout diminished, while those of foreign occupiers served as objects of competition and conflict. By creating relatively strong centralized state apparatuses and bureaucracies, colonial authorities created enormous new centers of power that became objects of ongoing contestation over its economic and political resources. Poor economic conditions, low educational attainment levels, and ongoing civil unrest stymied efforts at democratization and left predominately one-party states in tact. Political opposition in colonies was not tolerated, unlike the metropole, where loyal criticism was increasingly accepted. As Kalevi Holsti states, “colonies were not created to become participatory democracies.”42 In places like Indonesia, the corporatist state derived from colonialism lacked a social contract that recognized the role of individual liberty. Instead, competition for control of the machinery of the state perpetuated a vicious circle that sustained the top-down authoritarian approach to political rule and concomitantly retarded the organic growth of non-violent civil society across the archipelago. Indonesia sought to create a ‘rational’ Western nation-state, while institutionalizing authoritarianism, nationalism, and paternalism, and further weakening traditional society through the formation of a centralized state as supreme authority.43 Thus, the structure of the Indonesian state has generally been a non-participatory bureaucracy that lacked a transparent and equitable judicial system, with the most developed institutions, the military and police forces, both instruments of coercion. Since civil society remained under-developed or repressed,

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top-down rule functioned to control, rather than to respond to the needs of the population. Indonesia co-opted Timorese elites, repressed indigenous resistance, and invested in modest development projects; its governing style encouraged civil servants, indeed the population, to follow rules and orders. The models of authority and legitimacy which derived from the Indonesian occupation would logically arise again in post-occupation East Timor through the growth of patronage and corruption. Alexandre Gusmão, Deputy CEO of TimorAid, saw governance as problematic: “The worst vision is still having an Indonesian mentality and identity of power and corruption, and how to change that. The best vision of East Timor is democracy, checks and balances, and minimal corruption, collusion, and nepotism.”44 A fundamental gap between state and civil society occurs in such post-colonial situations according to anthropologist Sally Merry. For state leaders, law is an instrumental tool to govern, regulate, and to weaken opponents; for elite civil society, law is a moral code, the foundation of governance, and a regulator of state corruption and arbitrary rule. For the vast majority, law is a cultural imposition, unknowable, unexplainable, a tool for personal relationships or a threat to those lacking such relationships, and a challenge to the conduct of daily life.45 This formulation is quite evident in East Timor, where state authorities have attempted to control and curtail public discourse by passing laws to restrict the NGO sector and criticizing the few media outlets. The urban civil society groups in turn condemn such abuses and call for adherence to the rule of law. The majority of the population registered their preferences through voting, but avoids this narrow debate and retreats to the local traditions of village governance and the guidance of spiritual customs. Merry argues that for indigenous society, to be modern one must accept Western law and its institutions, though “texts are more readily transferred than the practices of interpreting and administering them.”46 International NGOs tend to prioritize international human rights instruments and laws, criticizing from afar rather than working with government to improve the practice of human rights, and they often attempt to superimpose their own priorities without sufficient sensitivity to the complexity of the endeavor as a whole.47 While this section examines the creation of governance, the question of legitimacy animates any overall evaluation of the meaning of these changes in Timorese society and it is this fundamental question that is ignored in the wholesale transplant of Western institutions.

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Democracy with Culture Maintaining a semblance of uniqueness in the face of outside cultural forces, some Timorese have sought to regenerate traditional practices. The pro-democracy murals below (see Figure 3.3) illustrate the selfconscious concern on the part of Timorese that democracy and independence in Timor still maintain a reliance and basis in Timorese culture. Figure 3.3

Pro-Democracy Murals on Stadium Municipal

Each photo was taken on the south façade of the Municipal Stadium, Dili, East Timor. Photos: by the author.

Moving clockwise from the bottom left, the first image clearly reflects the betwixt position Timorese find themselves in its statement, ‘Demokrasia sei buras liutan wainhira kultura no tradisaun hetan respeito husi Timor-oan hotu’ (‘Democracy will grow when the culture and traditions are respected by all Timorese’). The next photo uses common indigenous symbols like the spiral along with drums and lizards to promote ‘demokrasia ho cultura,’ democracy with culture, that traditional customs remain equal to the national goal of a democratic

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system and should be accommodated in its practices. The third picture links “paz, unidade, demokrasia” (“peace, unity, and democracy”) by depicting rural farmers in the field celebrating these aspirations, implicitly highlighting the traditional subsistence agricultural life rather than choosing to valorize the guerrillas or political leaders as most resistance graffiti had done. Finally, the last photo simply titled ‘demokrasia,’ shows a traditional and prized surik (sword) demonstrating the esteemed status of a warrior, as the painting suggests that democracy must be a part of the local cultural system of authority.48 Blending traditional institutions with representative ones could have reduced the confusion and lessened the confrontation over state power. Western colonialists sometimes manipulated indigenous institutions to enable their own minority rule, but in some cases directly or indirectly facilitated their integration with representative government in nearby nations like Malaysia, the Marshall Islands, Fiji, and Yap. The British attempt to thwart the growing influence of nationalists by abolishing the Malay sultanates backfired and nine traditional sultans formed the Conference of Rulers (Majlis Raja-Raja) to serve as a consultative body in post-colonial Malaysia. Fiji’s Great Council of Chiefs (Bose Levu Vakaturaga) included hereditary leaders in a constitutional role in part to maintain the influence of the indigenous Polynesian population. Yap has four branches of government, an executive, legislative, judicial, and customary branch; the latter comprises a Council of Pilung and Council of Tamol to preserve local customs. Likewise, in the Marshall Islands, a Council of Chiefs (Ironji) advises on customary practices and the judiciary itself has a traditional rights court. These imperfect institutions have faced issues of corruption (primarily in Fiji) and often only operate symbolically (particularly in Malaysia), yet the avoidance of traditional culture in East Timor undermined the credibility of state-building. Again, the one-size-fits-all approach of a standard model of governance reflects the Western sensibilities of the architects, when pliable, relevant, and inclusive examples of alternatives are to be found within Timor’s geographic milieu of Southeast Asia and the South Pacific. In East Timor, no Council of Liurai was considered nor was customary law given a role in governance; thus, an instrumental opportunity to grant a sense of local ownership to the process and validate traditional political practices was lost. In the rush to accommodate Western planners and notions of modernity, Timorese elites ignored the submerged methods of authority that were partially co-opted during foreign rule, but had remained the most commonly understood system of rules throughout the society.

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Rather than a wholly imposed system, a hybrid unique to East Timor could have been concocted through mutual deliberations. Elections The United Nations has established an impressive record in the preparation and conduct of elections and East Timor was no different. Very few disturbances disrupted the polling, and a remarkable turnout at the initial post-independence election and subsequent tallies were a testament to the oversight of the process. Unfortunately, elections are often considered the pinnacle of the peacebuilding program and its success is often equated with mission success, when in fact it is only a small part of governance and one that produces winners and losers. Likewise, majority rule and rewarding authority through popular contests are not always easily adapted to traditional cultures. The conduct of multiple democratic elections and the 1999 referendum in East Timor was successful, though outcomes were mixed. East Timor held constituent elections on 30 August 2001 (91 percent turnout) and a presidential election in April 2002, the winners in the former ultimately became the parliament and drafted a constitution. Though the elections were vigorously contested, FRETILIN handily won the parliamentary tally with its 57 percent of the vote, gaining 43 of the 75 national seats decided by proportional representation (PR) and 12 of the 13 regional district seats, for a total of 55 in the 88 seat chamber. Former FALINTIL leader Xanana Gusmão easily won the presidency over Xavier do Amaral, taking 83 percent of the electorate. Many Timorese, particularly in the villages, were surprised to learn that FRETILIN leader Mari Alkatiri (who is Muslim) became the preeminent leader as prime minister, expecting that the singular hero Gusmão would govern, which was not the case for the somewhat figurehead president. Thus, the parliamentary system created an initial disconnect between the populace and its leaders that would only grow. Despite dropping its anti-colonial slogans in favor of democracy, peace, and stability, FRETILIN strongly sought to institutionalize single-party dominance, using persuasion and intimidation to gain voter’s allegiance and induce others to join the party in order to gain government privilege (particularly in the 2003-2004 commune elections), pressuring liurai and heads of subdistrict (administrador de sub-districto) to influence voting in the aldeia (neighborhood) and suco (village). These tactics, among others, had the reverse effect and public support for the nationalist resistance party declined precipitously. Following eruptions of post-independence unrest, three elections were held in 2007: a presidential vote, a presidential run-off, and a

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parliamentary tally. With the presence of over 200 observers and 1,645 UN police from 41 countries at polling stations, the electoral process under international guidance was once again impressive; in fact, I can attest to their professionalism as I was personally escorted out of a voting location by UN police since I had not registered as an official observer. All three elections were determined to be free and fair by international observers, with limited instances of irregularities and little violence during the campaigning and almost none on the election days.49 On 9 April 2007, 88 percent turned out for the presidential election between eight candidates, including one woman; FRETILIN’s party leader Lu Olo tallied the highest mark at 28 percent, followed by interim Prime Minister José Ramos Horta at 22 percent.50 Questions were raised when nearly 100 ballot boxes were discovered uncounted, though this mattered less since the top two candidates were clearly ahead and competed in a run-off. One month later, the second round between the two top vote getters saw Ramos Horta win convincingly 69-31 percent, exhibiting the frustration with the incumbent FRETILIN government and demonstrating that its popularity was capped at a ceiling of slightly less than one-third of the electorate. The parliamentary elections of 30 June 2007 achieved a turnout of 81 percent in a contest of 14 different political parties, of which four attained a double digit percentage. FRETILIN led the way at 29 percent, taking 21 of 65 legislative seats, followed by the main challenger of President Gusmão’s Congresso Nacional de Reconstrução de TimorLeste/National Congress for the Reconstruction of East Timor (CNRT, to be confused with the former name of the Timorese national coalition of the same acronym) at 24 percent and 18 seats.51 Since no single party reached the 50 percent of seats threshold to form a government, negotiating for coalitions led to a great degree of uncertainty, conflict, and ultimately a two-month waiting period before a government was finally formed. The CNRT, along with its coalition partners, bypassed FRETILIN and its government was accepted by President Ramos Horta, who named Gusmão as prime minister, causing FRETILIN to challenge the results and initiate a series of violent demonstrations.52 The eventual transition from one party to another through democratic means reflects positively on the international community; many post-colonial states have succumbed to single-party authoritarian rule after bouts of political chaos. Yet the inclusion of customary authorities as at least a symbolic branch of government, whether elected, appointed, or acclaimed may have tempered the sense that victories at the polls validated secretive tactics to offset rivals. While the culminating moment of a periodic election should not be underestimated, the enhancement of

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representative institutions and regard for civil society is essential to the long-term viability of democratic governance. Administration International commitment to fostering civil society and effective state machinery in East Timor was impressive; with Timorese participation, the infrastructure of self-government was created (a control board, a parliament, a constitution, a taxation and finance system, etc.) and governance has been moderately effective. With international consultation, East Timorese political leaders formed a National Consultative Council on 2 December 1999, which gave way to a National Council on 23 October 2000. Next, arrangements were made to designate posts in the new administration with a blend of Timorese and UN officials. In practice, authority was skewed toward international personnel; important functions were commonly staffed by the United Nations and local talent was only employed for less essential bureaucracies. For instance, UN staff headed Internal Security, Justice, Finance, and Political, Constitutional, and Electoral Affairs, while Timorese as part of the East Timor Transitional Administration (ETTA) ran the Internal Administration, Infrastructure, Economic Affairs, and Social Affairs. As Michael Smith and Moreen Dee questioned, “In the absence of clear directives, mission staff generally expected that the East Timorese would mainly fill minor positions until after the elections–a type of neocolonialist arrangement.”53 East Timor is a unique case precisely because the United Nations occupied administrative authority. In this sense, the Timorese were not adequately prepared to rule since the government “was first administered by foreigners who did not pay much attention to local Timorese views, and was then almost precipitously given over to Timorese control without much time for on-the-job learning by local administrators.”54 UNTAET failed to create a clear democratic structure, particularly at the village and community level, and overemphasized resource distribution to the capital rather than outlying districts. More power accrued to the central government in Dili and residents of remote regions were dismayed by their diminished status. Concurrently, UN administrators rarely allowed locals enough responsibility and training to improve various skills, and capacity-building was further limited by the inability of governments to match the salaries of NGOs and international organizations.55 Once freed to conduct their own affairs, the Timorese government digressed in regard to these governance standards as they were preoccupied with the multitude of post-colonial challenges. As foreign

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concepts such as private property and contracts are introduced, leaders increasingly rely on the coercive force of the state to support corrupt financial practices. The importance of traditional legitimacy erodes as new power centers in the civil service and courts are created, based less on family or social status and more on a combination of skills and training along with government connections and personal favors. State institutions are rarely capable of impartiality because of the legacy of civil war, poor training and comprehension of the law, and a lack of resources for policing, criminal investigation, and prisons. When bureaucratic careers are dominant in a society, corruption often arises as opposition political parties lack the resources to reward partisan loyalty and the dominance of a single party quickly manifest itself at the expense of pluralism. Thus, in weak developing states with small civil services providing few employment opportunities, pressures and incentives to join the governing party are strong, using personal and political connections to gain wealth, prestige, and power. Regardless, civil service will remain the dominant source of patronage and social advancement for years to come. During the occupation, Indonesia provided relatively more investment in East Timor than its other provinces and tried to win the hearts and minds of Timorese by building roads and improving water supplies, and offering individuals positions as titular heads of a department with a good salary and perhaps a car to keep the population pacified. Based upon this history, many Timorese and international observers identified a dilemma with capacity-building to be the preference by many Timorese to seek positions of nominal authority rather than managerial responsibilities.56 The German-based corruption watchdog Transparency International ranked East Timor 145th in the world for corruption in its 2008 report, surpassing notoriously graftridden Indonesia at 126th, though slightly better than nearby Papua New Guinea at 151st. Timor and Indonesia essentially traded positions from the 2007 report where the Timorese were ranked 123rd to Indonesia’s 143rd. Those formally charged with oversight, the legislative branch, were not well advised in the scope of their duties and did not effectively scrutinize government policies; many seemed satisfied with their newfound status and salary and were not interested in offending the governing party, whether FRETILIN or the CNRT. Thus, continued international supervision and support was crucial to reduce corruption and sustain democracy, the rule of law, and independent civil society. Yet the elitist UN culture did not serve as a good role model, where hiring employees from within the UN system among diverse nations was sometimes more important than the

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appropriate qualifications.57 The UN recruitment process is flawed, and even Lakhdar Brahimi identified the problem of lazy or incompetent personnel who should be fired.58 As an employer, international organizations, national embassies, and NGOs can exacerbate latent hostilities between those who suffered during the struggle and those who fled to a life abroad and lived in more material comfort. Internationals sought out the rare talents of computer literacy and foreign language proficiency (particularly English), inadvertently rewarding the least deserving by hiring those with skills generally acquired in the West. At the same time, the local community is keenly aware of those who operated in the guerrilla or clandestine resistance, were imprisoned or collaborated, and lived outside and when they left (1975 or 1999). Blame, however, is often withheld toward the international hiring practices, but ascribed instead to the injustice of the compatriot who was hired. As one Timorese staffer for USAID expressed it, “There is frustration at the moment, but it is more toward Timorese themselves, particularly outside Timorese are disliked since they occupy higher-level positions.”59 Pay scales are commonly based on this inside/outside dimension, with indigenous staff that lived abroad commanding higher salaries, though still much lower than internationals. This gap became painfully obvious at international NGOs where an outside consultant was paid upwards of $60,000 per year, while a Timorese was generally paid about $1,500. A Timorese permanent resident of Australia may be paid at the highest end of the local wage and become frustrated at the inequity compared to one’s international counterpart; yet the employment generally, and elevated local pay specifically, of such a returnee exacerbates relations with other local Timorese who never left, causing almost universal frustration for the domestic population. For the international staff, these tense and poverty-stricken nations are hardship conditions compared to their ordinary standard of living and justify the pay as well as the ample rest and relaxation. For international personnel from other Global South countries, the current deployment is simply another poor nation, little different than one’s own homeland. While at a personal level, this international-local gap was commonly overcome, the larger structural process as a whole led José Luis Oliveira, director of the local Timorese NGO Hak Foundation, to refer to UN personnel as ‘humanitarian tourists’ who generally demonstrated little commitment to Timor.60 Perhaps even more frustration was expressed toward the once heralded Timorese political leaders. Many ordinary Timorese complained that the government tended to look outwardly toward the interests of the aid community or prominent states, and less inwardly in

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regard to the well-being and daily struggles of its own citizens, risking a culture of dependency. Moreover, new conflicts tended to draw away foreign talent, disrupted the continuity of personal relationships between international NGO workers and local community members, and exacerbated preexisting problems of different national styles and methods of instruction in local capacity-building. The interventions in Afghanistan and Iraq that followed East Timor pulled international staff away to more pressing postconflict societies as well as to opportunities of greater financial reward and career advancement. Thus, support from international democracy- and civil society-building NGOs helped to limit the dominance of state authority and offered space for political parties and local social movements to expand; yet a talented pool of potential civil servants avoided government ministries and instead opted to work in the non-state, donor-funded sector. Civil Society Lessons learned from previous peace operations contributed to a new emphasis on fostering civil society. While the international community correctly recognized the need to disperse power away from a centralized government by building a robust civil society through support for partnerships between international and national NGOs and assisting the creation of new local NGOs, this also had a negative effect. Artificial, Western-focused civil society NGOs in the capital city dependent on foreign aid tend to crowd out indigenous grassroots organizations. Too often, false expectations divide civil society far from the government’s interests and leave disillusion and disappointment among local NGOs, who are then ignored by the government. In East Timor, the ‘best and the brightest’ often went to work for an NGO, a foreign development agency, or an international organization like the World Bank or United Nations instead of forging much need allegiances with government officials that would allow them access to influence in the post-UN period. Instructed by outsiders to monitor and criticize those in power, NGOs were very unpopular with the government. thus, critics complained that NGOs were too perfectionist and idealistic, emphasizing civil society too much when a stronger state was needed.61 Richard Holloway of Catholic Relief Services pointed out that “NGOs did relief from 1999-2001, then the government shut them out…as the government expands, it will need the expertise and support of NGOs; here, the government is unsympathetic to NGOs. This is the most worrying and very problematic.”62 Moreover, as donor funding dried up, many of the most talented Timorese were left in vulnerable straits.

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These concerns were identified by local civil society agents; a Timorese staffer at USAID saw challenges ahead: “If the internationals leave, trust in the government may decline. The burning of the prime minister’s house is indicative of that. If the situation does not change, there could be violence.”64 A vibrant indigenous civil society fostered by the aid community has persevered, but aside from serving as government watchdogs, a broad range of non-state activities has been marginal in East Timor due primarily to the absence of a private sector with an interest in political reform. Very few entrepreneurs developed wealth outside of the government’s purview, thus civil society remains weak, under-funded, and incapable of sustained independence. The primary voice of the community at-large continues to be the Catholic Church, which in many ways was ignored in the state-civil society dynamic due to the orientation of the international community. Despite their common training as seminarians, most Timorese political elite recognize that secular doctrines undergird the modern state, which reflects partly the socialist perspective of some in the government, but also illustrates the disconnect between the liberal state-building paradigm and the realities of a religious populace. Although differing attitudes toward issues among bishops, young priests, and laypeople certainly exist within the church, the prerogatives of the ecclesiastical hierarchy led to a split between the Catholic Church and FRETILIN over the size and transparency of government, nepotism and corruption, negotiations over energy resources in the Timor Gap, whether to send students to socialist Cuba, and general church-state relations in education. Compulsory religious education was removed from public schools in February 2005, leading over 2,000 protesters to the streets that April and ultimately contributed to the downfall of the government. Maintaining civil society and an effective NGO community is vital to limiting the power of the government, but if private business capacity fails, international oversight diminishes, and government pressure increases, the nongovernmental sector will quickly dissipate and authoritarian rule could easily result. Although international planners did not look to the greater region in designing structures of governance, since the 1991-1993 UNTAC operation in Cambodia, human rights have gained a more prominent status in UN peace operations. Human Rights and the Rule of Law The international community fostered greater scrutiny of domestic institutions, which encouraged the government to adopt basic human rights provisions and allow for a more open society. An examination of

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human rights and the rule of law includes whether courts and civil trials are functioning, few or no extra-judicial killings occur, voting is promoted without intimidation, free speech is accessible, and peaceful demonstrations are tolerated. The mechanisms of human rights protection (a nonpartisan police force, impartial judiciary, legal provisions, and public institutions to administer health, safety, and basic services) usually do not function well in the immediate aftermath of civil war; however, human rights units within UN peacebuilding missions are still rather novel and are not prioritized beyond the common rhetorical refrain touting the importance of their goals. Unlike its counterpart in Cambodia, neither UNTAET nor UNMISET included specific mandates to address human rights, though a Human Rights Unit was formed and certainly promoting respect for human rights was a key component of the international efforts, particularly among international NGOs. The follow-on mission UNOTIL did include a mandate “to provide training in observance of democratic governance and human rights,” though only provided for up to ten human rights officers to accomplish that goal.65 With its broad rhetoric, UNMIT sought “to assist in further strengthening the national institutional and societal capacity and mechanisms for the monitoring, promoting and protecting of human rights and for promoting justice and reconciliation, including for women and children, and to observe and report on the human rights situation.”66 UNMIT also went further by seeking “to mainstream gender perspectives and those of children and youth” and to “support the development of a national strategy to promote gender equality and empowerment of women.” UNMIT also included an emphasis on building the rule of law, including a Security Sector Support Section, Human Rights and Transitional Justice Office, Administration of Justice Support Section, Serious Crimes Investigation Team, Police Commission, and a Chief of Military Liaison Officer. Since the promotion of human rights was not expressly mentioned in the early mandates, the Timorese government’s mixed record in this respect cannot be judged too harshly against the UN’s responsibilities. The United Nations certainly strengthened the human rights mechanisms in East Timor, and in relation to its neighboring countries, the human rights record in Timor is decidedly positive. International human rights NGOs have increased the visibility of human rights for a global audience while making tangible progress on the ground in documenting abuses. Human rights field presence programs monitor, investigate, and report about human rights compliance; provide technical assistance, capacity building and training of local activists; and coordinate and facilitate human rights activities by

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other international actors.67 Human Rights NGOs use press releases and public reports, communications with national and international decisionmakers, and on the ground legal aid, public advocacy training, and educational programs to inform individuals of their rights.68 Local NGOs played a crucial role in promoting democratic principles and respect for human rights through policy, training, and other advocacy work in East Timor. In fact, East Timor has adopted impressive constitutional documents and signed onto international conventions promoting human rights. The 2002 constitution contains a robust list of human rights in accordance with the Universal Declaration of Human Rights and upholds the separation of church and state, which contributed to frustration by the Catholic Church. East Timor even created an Office of Provedor for Human Rights and Justice, an ombudsperson to evaluate the government’s compliance with human rights standards. With international mentoring, minimum protections of human rights have been observed, though the rule of law and an independent judiciary are relatively weak. Yet signs of backsliding are appearing, as police sometimes abuse their authority, newspapers are increasingly criticized for their investigative reporting of the government, and poor legal training and political influence have hindered greater advancement in the judicial branch. The 2004 U.S. State Department Human Rights Report found no political killings, politically-motivated disappearances, forced exile, or political prisoners; and the government permitted independent human rights observers to visit prisons. The report did find that women’s and children’s rights were less impressive, particularly regarding domestic abuse.69 More problematic is that respect for human rights seemed to noticeably deteriorate as the international presence declined. The 2008 U.S. State Department human rights report on East Timor recognized that the Timorese government generally respected the human rights of its citizens, but also identified significant weaknesses in respect to human rights, including use of excessive force and abuse of authority by police, arbitrary arrest and detention, an inefficient and understaffed judiciary that deprived citizens of due process and expeditious and fair trials. Domestic violence, rape, and sexual abuse were also growing problems. Of course, the most severe human rights violations were epiphenomenal, such as the 30 unlawful killings committed by security forces and others in 2006, or the conditions in IDP camps that endangered health, security, and education. Another troubling sign is exhibited in the rankings for civil liberties and political rights of the U.S.-funded watchdog Freedom House. In its first four years as an independent country, East Timor received a score of three (one is the most free and seven is the least free) demonstrating it

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as “partly free.”70 By 2007-2008, Timor had slipped slightly to a 3.5 ranking owing to the complicity of security forces in the 2006 violence, but at a parallel time when Indonesia moved from 3.5 to 2.5 and was hence recognized as fully “free.” A country of more similar circumstances, Papua New Guinea, maintained a three rating over that time despite its turmoil. Harassment and intimidation of news media rose after independence, most pointedly evident when Prime Minister Gusmão threatened to arrest local journalists after they interviewed rebel leader Alfredo Reinado, who had suggested Gusmão was partially responsible for recent unrest. Another catalogue that numerically ranks human rights is offered on freedom of the press. According to Reporters Without Borders’ 2003 World Press Freedom Ranking, East Timor was an impressive thirtieth out of 166 nations surveyed in media freedom.71 The 2004 U.S. State Department Human Rights Report also found that respect for freedom of speech and press was good in East Timor. By 2007, Timor had fallen to ninety-fourth in Reporters Without Borders’ press rankings and was ninetieth in Freedom House’s 2007 Freedom of the Press rankings, dropping from “free” to “partly free.” Although a slight improvement to sixty-fifth and eighty-first in the respective rankings occurred in 2008, Timor still compared unfavorably to Papua New Guinea, which held between fifty-seventh and sixty-sixth in the Freedom House tally over that time period. East Timor did vastly surpass Indonesia, however, which was ranked above 100 by both observers in all years examined. While this section examined primarily civil and political rights, the section on socioeconomic development considers indicators that would be termed economic and social rights. Status of Women Social changes that result from the political economy of war can dramatically affect violence toward women, while cultural transformations derived from occupations also greatly impact the status of women in society in sometimes unforeseen ways. Timorese society has significant matrilineal traditions and females have long enjoyed a relatively high status. The kingdom of Wehale was matriarchal: the religious and ritual power of women was dominant, matrilineal kinship was observed, and females controlled political and economic power.72 Despite limitations derived from Catholic patriarchal influences, females retain a fairly elevated status in much of East Timor. Progress toward improving female participation in politics and decision-making positions was also promising due to international influences as well as the remnants of the matrilineal culture and the traditionally higher status

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of women. One quarter of the candidates on parliamentary lists must be women, but these quotas have been regularly surpassed. Nearly 30 percent (23 of 88) of elected parliamentarians in 2001 were female (as well as the country’s first deputy Prime Minister, Ana Pessoa), a total rivaling the Scandinavian countries. Women continued to achieve political success in the 2007 parliamentary elections, 28 percent of the seats went to females, 18 in total. The high regard for women in animist East Timor was unfortunately matched by a powerful patrician culture, heavily influenced by the Catholic Church. Women always play a vital role in the local economy, in resource distribution and as social agents, and frequently take on even greater positions of leadership and authority during violent upheavals, both in the family and the community; in fact, women and children are also combatants in many cases.73 Yet the sociological effects of war can be most easily witnessed in the return home of male combatants after years away, which upsets the newfound status of female heads of the household and can lead to interpersonal conflict during the postconflict transition stage. These patterns held true in East Timor, where domestic violence rates, both child and spousal abuse, became higher following the end of the political conflict. Manuela Perreira saw gender violence less as a traditional phenomenon and more as a symptom of the violence used by Portugal and Indonesia to control people and suggested that the harsh tactics of the Indonesian military became rooted in people’s minds to the point that violence was simply considered normal.74 The correlation between harsh treatment in oppressed societies, like during the Indonesian times, and violence within the family cannot be underscored enough. The tragic life-long abuse of figures like Alfredo Reinado and countless others by Indonesian overlords speaks directly to the long-term traumatic effects of violence, particularly on youth, and the future social costs that result. Although the United Nations and women’s NGOs did address this issue through advocacy, media campaigns, and by providing a variety of social services, the imposition of new norms of women’s rights caused a cultural backlash here as well. In offering counseling to victims of domestic violence, educating women on their legal options, and in some cases, granting temporary shelter, many men saw in these women’s NGOs a conspiracy to teach women to divorce and leave their husbands. Although women’s NGOs offered similar counseling services to males to reduce domestic abuse, very few men accepted such offers. At the same time, the multitude of sexual encounters between international and local, whether consensual, coerced, or purchased, risked humiliating both Timorese men and women and undermining the efforts to promote

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women’s rights. Social-psychological patterns of physical abuse, whether found in the traditional culture or modern practices of dominance and authority, are widely ignored by UN practitioners of peacebuilding, but are repeatedly acted out by those with power against those without across the social spectrum and are a precursor to future postconflict violence. Maintaining Security

Even after the establishment of a secure environment by INTERFET, Indonesia’s future intentions and the possibility of renewed militia violence were of great priority. Thus, UNTAET was mandated “to provide security and maintain law and order throughout the territory of East Timor.”75 In fact, each follow-on mission was obliged to include a security focus reflecting the uncertainty still present long after the intervention. Specifically, UNMISET was designated “to provide interim law enforcement and public security and to assist in the development of a new law enforcement agency in East Timor, the East Timor Police Service (ETPS) and to contribute to the maintenance of the external and internal security of East Timor.”76 Two of UNMISET’s highest priorities were public security and law enforcement and external security and border control. Comparatively, the United Nations maintained stability far better than during the preceding two decades of civil strife; an improved state of affairs to be sure, but not one that necessarily matched expectations. As UNMISET’s head in East Timor Kamalesh Sharma described “By global standards, the security situation here is very calm; we have reached a plateau of stability,” which was generally true in 2003, but that modest success would soon unravel.77 Both UNOTIL and UNMIT would share the emphasis on training of police, military, and border guards, though the latter was mandated to restore security, increase force strength, and provide relief and recovery assistance, demonstrating the reality that peace and stability had broken down since the optimistic assessments of 2002. A UN report on the Timorese Policia Nacional de Timor Leste (PNTL, National Police of East Timor) found the force to be tribalized, corrupt, inadequately trained, and lacking in public trust, going on to find it politically manipulated, chronically mismanaged, and massively under-funded.78 Thus, UNMIT’s police unit resumed some responsibilities for domestic order after these failings were exposed. Unlike the previous discussion of governance issues which were considered to be qualified success stories, postconflict security was an unmitigated failure, owing largely to early decisions on force composition of the Timorese police and

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army, inadequate professional training, and the inability to recognize the growing political hostilities among domestic actors. Challenges in forging a political compromise also caused turmoil in the security sector, where the government did not always maintain a monopoly on the legitimate use of violence. As Cynthia Burton explained, “The progressive breakdown of East Timor’s law and order system over early 2006 may at least partly reflect the adoption of largely imported [security sector reform] SSR models that have not been designed with sufficient understanding of the socio-political and economic reality.”79 International peacekeepers rarely have contact with the local population, employ short rotations, operate outside a legal system, and are ill-prepared for daily policing.80 Omnipotent security forces create problems simply as intruding foreign occupiers despite the legitimacy of UN approval; soldiers brandishing weapons and oversized gear prove intimidating. Figure 3.4 depicts UNMISET peacekeepers at work in the Kaikoli and Pantai Kelapa neighborhoods of Dili in August 2003. Peacekeepers in Timor effectively secured the country, reduced political violence, and ensured border stability, but the police component of the UN missions performed poorly in limiting civil unrest and training Timorese police in professional standards. International civilian police must perform a quasi-military function, as few established legal procedures exist to enforce daily law and order. Deputy Force Commander Michael Smith described the difficulties to integrate various police components and different national styles, arguing that the police, penal, and judicial sectors were all poor elements of the operation.81 Figure 3.4

UN Peacekeepers in East Timor

Left: UN peacekeepers stand watch in Kaikoli; Right: UN peacekeepers from Portugal patrol Pantai Kelapa. Photos: by the author, Dili, East Timor.

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Disarmament removes the means of violent conflict and helps to create a stable environment and verification helps to build confidence.82 Guns play sociocultural roles as symbols of manhood, prestige, a method of trade or barter, and the global small arms business ensures easy access to guns and the potential for a return to armed conflict.83 Insecurity grows if ex-soldiers keep their arms, especially if no land is given to them. As Winrich Kühne explains, personnel must understand the economics of war, i.e. that combatants may lose resources and income by choosing peace. In practical terms, the balance of forces, the security dilemma felt by ex-combatants, and de facto control over territory must be evaluated. Thus, consent-based disarmament is preferable to coercive measures and perhaps buying back weapons is a preferable method to accomplish this essential task.84 Indonesia’s inability to achieve the complete submission of the Timorese resistance contributed to a belief in the need for coercive control by force and consequently, the development of a competitive, zero-sum political culture in East Timor. This Manichean mentality among the elite which helped in clandestine activities resulted in the secretive funding of paramilitary factions within the security forces. Political connections forged in the resistance were more important qualifications than occupational skills to gain employment, while those with suspect revolutionary credentials remained excluded from governance. After a political conflict, economic conditions usually worsen, ordinary crime rates often rise (including domestic violence and child abuse), and uncountable individuals, especially former combatants, suffer from disability, trauma, mental illness, and psychological scars.85 Unemployed ex-soldiers are sometimes a disruptive force; accustomed to life as guerrillas in the forest and not as government bureaucrats or farmers, the skills of former combatants rarely match the skills of the labor market.86 Many former combatants did not receive jobs and became increasingly displeased with the government. Although this structural problem is not the fault of the United Nations, better vocational training could have been adapted to the demobilization of militants, particularly skills for civil service and administration. Moreover, institutions of justice and reconciliation were ended too quickly and became marginalized due to renewed violence. Social services to address post-traumatic stress and its pernicious sideeffects, particularly those relating to mental health, did not receive appropriate attention. Using pre-existing police forces is troubling, since it favors the old regime, but disbanding the previous police altogether is problematic.87 Moving police from reinforcing government control to civilian

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protection and from serving privileged groups to an entire population of former opponents is difficult. Battles between the army and police, and armed conflict among security forces and the Timorese government (and even a new independent, international contingent deployed to support the government) illustrated the failure to create neutral and professional police and military units. Although the initial training of security forces seemed adequate, the failure to plan for internal divisions in these forces was a major mistake: essentially heroic guerrillas became the army while suspicious collaborators became the police. The FALINTIL resistance fighters were first demobilized and then formed the army Forças de Defesa de Timor Leste (F-FDTL, East Timor Defense Force) under the direction of the Secretariat of Defence, while police (Polisi Republik Indonesia, POLRI) formerly tied to Indonesia and some associated with pro-autonomy militias (and those from the western portion of East Timor generally) became the new PNTL under the authority of the Ministry of Interior.88 Yet the police were much more apparent in daily life, particularly in the capital, whereas soldiers’ barracks were far from the population and removed from the urban areas. Soldiers received a small salary of $120 per month, and had to spend a significant portion of their pay to travel home from their barracks in the eastern cities of Baucau and Los Palos.89 Senior police officers tended to come from the western part of the territory, receiving priority from UN administration with higher pay, equipment, and uniforms.90 Despite such privileges, PNTL cases of mistreatment grew exponentially and complaints were often made against the police for carrying their weapons when off-duty and harassing the public generally.91 Therefore, the public expressed much more faith in the armed forces and felt anxiety toward the new police who once cowed the population. While international police performed well, those from East Timor lacked discipline and both were poorly monitored.92 As early as 2002, UNMISET Human Rights Officer Carolyn Graydon felt that the United Nations needed to spend more time to train police, improve the quality of investigation, abide by standard procedures, and follow international standards. She also believed that the differences in languages and national styles harmed the mentoring of police, and lamented that “capacity-building and personnel training cannot be improved in designing a police force in three years.”93 The relationship between socioeconomic gains and stability were important, as rioting in East Timor on 4 December 2002 exemplified the failure of the early reconstruction. Reacting to the arrest of a fellow pupil, peaceful student demonstrators fused with protesters frustrated by unemployment, corruption, and language policy not only burned

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foreign-owned properties (including the Australian-owned Hello Mister grocery) and attacked the Muslim areas around the Dili mosque, but also stormed parliament and burned the prime minister’s residence. In response, the Timorese government declared a state of emergency and Timorese police killed two and wounded 16, while the international police passively watched. As Holloway saw it, “The grocery burning was mob rule, but the UN was afraid to get shot and the Timorese were ineffective.”94 Although F-FDTL took over border security in May 2004, the significant decline in peacekeeping forces in June 2005, particularly from the lead nation Australia, would prove costly. In October 2005, Indonesia fomented instability along the West Timor border and occasional attacks near Atambua and Oecusse reflected the precarious conditions in the west.95 The border with West Timor remains porous; illegal cross-border smuggling still occurs since profits were higher in the east with the use of the U.S. dollar and demand was elevated due to the foreign presence. Moreover, revolutions often begin in weak political areas of a territory that contain economic resources and in rural settings near borders, thus preventing renewed instability requires constant vigilance. Since 2005, increasing political violence began to disturb normal routines, forcing city dwellers into a voluntary after dark curfew. Rumors and innuendo are rife in Timor, and the lack of education and media access allowed speculation to replace fact. Conspiracy theories abound and easily led to the recruitment of young men and the unemployed into militia groups and gangs that once again threatened Timor’s tenuous stability. Small bands of karate and silat (an Indonesian martial art) gangs still disrupt society with their occasional small-scale battles over neighborhoods, competition for control over trade and markets in the informal economy, disputes regarding postindependence property claims, and rivalries within the security forces.96 The maintenance of security ultimately collapsed in 2006, leading to another outside intervention and serious unrest throughout the new nation. Violent attacks in April and May 2006 and again in July 2007 threatened to unravel five years of peacebuilding efforts. In February 2006, soldiers born in the western districts of East Timor alleged discrimination by eastern-born officers and about one-third of the SelfDefense Force (591 persons known as the ‘petitioners’) went on strike; their firing on 16 March symbolized the divisions between the government and a substantial portion of the security forces. When the April conflict began, police fled as the soldiers’ street protests turned

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unruly. During the violence, the Commander-in-Chief of the F-FDTL armed forces Taur Matan Ruak was attacked, while Police Chief Paulo Martins even fled the capital to the rural highlands fearing for his own life; at least ten police officers were killed by soldiers following his departure. Outright conflict between the army and police had also erupted in June 2004 when the F-FDTL stormed a police station and took PNTL hostages.97 Since Prime Minister Alkatiri’s request for foreign troops to pacify the new nation and to arrest rebel leader Major Reinado and his band of petitioners in May 2006, security assistance was provided by Australia, Malaysia, and New Zealand (to be known as the International Stabilisation Force, ISF); Australia possessed the largest contingent with around 1,100 deployed forces. Portugal also deployed a contingent of their police unit, the Guarda Nacional da Republica (GNR). Operating independently of UN oversight, Australian commandos killed several Timorese police and the PNTL were removed from active duty after 25 May 2006.98 The culmination of this internal dispute led to the resignation of Prime Minister Alkatiri on 26 June 2006, along with two cabinet ministers. Foreign Minister Ramos Horta ultimately assumed the premiership by 10 July.99 Dozens were killed and up to 150,000 were internally displaced as a result of the April and May hostilities, threatening to make Timor a failed state. In place of the UN’s mandate to restore security, the independent ISF was essentially conducting a counter-insurgency campaign under the request of the Timorese government, itself rife with secretive political maneuvering. The ISF was asked to capture the rebel leader Reinado, which it did on 26 July 2006, but the petitioners escaped from jail a month later on 30 August. Australia’s elite Special Air Services (SAS) were able to identify and locate Reinado’s hideout in the hills of Manufahi, which happened to be the homeland of early twentieth century resistance hero Dom Boaventura. As they closed in on his headquarters in March 2007, Australian commandos repelled from helicopters and the two sides exchanged fire. In a rare failure to achieve a mission, the Australian forces were not able to arrest Reinado, despite killing several of his soldiers, an act that both poisoned Timorese attitudes toward Australia’s presence and secured Reinado’s position as a national hero for many. Tactical decisions to cut down trees and block roads to stymie escape efforts antagonized locals and disrupted commerce and transportation. In numerous personal conversations in 2007 at Same near the Reinado hideout, scores of Timorese expressed revulsion toward the Australians and championed the Reinado group, regularly likening him to Boaventura. Anti-Australian graffiti and

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openly threatening sentiments were expressed throughout the country. One group calling itself the IDPs of Airporto Presidente Nicolau Lobato issued a statement calling for Australian soldiers to withdraw and an international tribunal to investigate the violence. While the presence of UN personnel may elicit a nationalist reaction, the independent operation of a suspicious neighbor mandated to use force has the potential to foment a popular fury. For a period of two years before his death, Reinado’s ability to evade capture was quickly placed in a long narrative of resistance among the pantheon of cultural practices of resistance. For many Timorese, traditional medicines provided to Reinado by indigenous healers in the area had rendered him invisible to the foreign invaders. According to many Timorese, Reinado’s escape was also enhanced by the spirits of the mountains that helped him and his men evade capture by constantly moving them to new positions to confuse the Australians. Reputedly, a ceremony to channel the power of Boaventura into Reinado and to blind the Australians troops was performed in February of 2006. Despite Portuguese influence, liurai resistance retains a symbolic place in Timorese culture, most notably in the person of Dom Boaventura, a Manufahi liurai who united other liurai (as had been done two centuries before) and led a three-year rebellion from 1910-1912. Later, Indonesian leaders comprehended the importance of this socio-political status, and used the liurai of Atsabe and Maubara to rule in the late 1970s.100 Reinado’s secretive location in Manufahi district allowed him to be cast in the erstwhile heroic image of Timorese liurai resistance. Others saw in Reinado’s escape the conspiracy of Timorese leaders with Australia’s government, perhaps even the hand of Xanana Gusmão himself. Whether through the efforts of lia nain and traditional spirits, or the intrigues of men, the Reinado affair solidified an already growing antiAustralian sentiment. The benefits of a UN-authorized multilateral intervention are apparent; despite the invitation from the Timorese government, Australia simply lacked the legitimacy to gain the acquiescence of the domestic population to achieve its mandate. While presidential and parliamentary elections went on as planned, UN police monitored and mentored, lacking a mandate to use force; Timorese police continued in their disputed role, the Timorese military missing one-third of its contingent remained an isolated unit, and Australia’s military operated independently beyond oversight. On 17 October 2006, a UN Independent Special Commission of Inquiry for Timor-Leste into the violence of April and May 2006 found Police Chief Paulo Martins responsible for the irregular distribution of weapons, identified the

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training and arming of western PNTL officers, and recommended the prosecution of Interior Minister Rogerio Lobato and petitioner leader Reinado. The entire ordeal took an unexpected turn when Reinado was killed in an apparent attempt to kidnap President Ramos-Horta and Prime Minister Gusmão, the former was shot twice and evacuated to Australia for medical care in February 2008. Crisis intervention was not the mandate of the UN police in East Timor per se, but public attitudes toward their lack of action was pronounced, as well as to the Australian-led ISF. Paolo Remedios, senior adviser to Ramos Horta, complained that “there were several [UN] officers of different nationalities sitting there, talking on their radios, afraid to go in with me. They were cowards.”101 After the kidnapping attempts, Australia upped its forces with an additional 350 troops and more UN police were added, but local respect for international forces was further diminished. Occupying forces quickly understand the inverse relationship between length of stay and local goodwill, thus professional training must begin immediately and be sustained with effective oversight. In April 2009, the United Nations once again prepared to return nominal policing duties back to Timorese authority. All of these factors make it incumbent upon international forces under UN authority to maintain security into the foreseeable future, which at the same time makes it less likely that domestic parties will face enough pressure to make the necessary choices to reintegrate the armed forces and establish a stable coalition government. The veneer of security whereby passive UN police patrol for signs of unrest but without the authority to stop it misses the fundamental point in any case, the root causes of insecurity like the politicization of armed forces, the nationalist backlash, and the deep-seated scars of emotional suffering were not addressed in the primary UNTAET mission. Socioeconomic Development

The United Nations must consider the long-term effects of underdevelopment when formulating peacebuilding operations and support economic rehabilitation and reconstruction. The people of East Timor were quite vulnerable: in poverty, recovering from immense trauma, in the process of nation-building, and regaining complete sovereignty following the departure of the UN transitional authority; thus, the political and financial support of third parties was often crucial, yet the goal of the international community in East Timor was to stabilize the postconflict situation, not to facilitate long-term advancement. Socioeconomic development includes economic growth as well as

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expanding access to health services, sanitation, food, shelter, education, and employment, yet its achievement remains beholden to the realities of the global financial and commercial system and economic growth has been minimal. UNTAET’s mandate included short-term measures “to ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance” and the longer-term goals “to assist in the establishment of conditions for sustainable development;” development was not mentioned again in the follow-on mandates.102 As a result of the post-2006 violence, UNMIT was designated “to facilitate the provision of relief and recovery assistance and access to the Timorese people in need, with a particular focus on the segment of society in the most vulnerable situation, including internally displaced and women and children,”103 but such inclusion could more properly be termed human security rather than development. Based on the UNTAET standard and applying the new judgment of a country’s ability to reach the Millennium Development Goals (MDGs), the international community was grossly deficient in effectively raising the standard of living for Timorese society. Despite vast amounts of aid since 1999, East Timor has not experienced much sustained economic growth and is in fact one of the world’s poorest nations, with limited government revenue, marginal trade and exports, increasing budgetary needs, poor infrastructures suffering from years of neglect, and dependence on international assistance. Basic services such as electricity, water, sanitation, and transportation were inadequate. Kamalesh Sharma agreed that development was poor: “Not enough attention was paid to agriculture, professions, and services. Development is not happening and overall this area has been poor. Economically, the country is degenerating; job creation cannot be dependent on foreign capital and investment.”104 East Timor faces enormous social and economic challenges in an era of globalization, including navigating through an ongoing encounter between tradition and modernity in every facet of life. Most of the minimal development that occurred was tied to the presence of the UN mission itself and its coterie of agencies and was most certainly not sustainable. Unable to attract much foreign investment, the United Nations poor transfer of technology hindered the ability of an entrepreneur class to form. While the World Bank played a greater role in East Timor and made a pronounced effort to collaborate with local experts, many in the cities and highlands continued to suffer from dire poverty and struggled to recover from such immense trauma. The lack of viable domestic industries and jobs alongside the growth of urban

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populations with high unemployment rates was a potentially toxic mix and contributed to the deteriorating security environment. Many small and mid-sized businesses arrived to make short-term profits in the service sector during the window of opportunity presented by the foreign presence. Long-term international investment was limited, and few, if any, viable local industries have arisen. Dependent on international visitors, these investments were not in the future of the country, did not provide sustainable entrepreneurial skills for local talent, and most often departed when the mission came to a close. Businesses were required to be locally owned, though were usually managed by foreign firms, and most of these few opportunities remained limited to traditional wealthy families and their new conglomerates. The few small businesses were generally operated by immigrants from the Philippines, Singapore, or Macau. Thus, the private sector remained quite weak in East Timor and lacking much local capital, economic growth was dependent on the minimal foreign investment. Beyond these macroeconomic dilemmas, the subtle intrusions of international personnel impact daily life. The urban bias of aid and the growth of businesses in the few cities led to growing urbanization, income inequality, and high rates of consumer imports. The UN presence also caused artificial economic distortions, as high salaries were paid to expatriates and international civil servants, a rapid jump in demand for local translators and drivers developed, and opportunities for local housing and services were attuned to foreign tastes and salaries.105 The use of the U.S. dollar as the national currency at the suggestion of the United Nations severely constrained an independent monetary policy and created a dual economy that forced prices higher for even basic commodities, particularly food. Health personnel were in short supply, demanded higher salaries from the civil service system than was affordable, and were reluctant to serve in distant, rural communities.106 Carolyn Graydon argued that “village life has changed little during the UN, as health and education remain poor. Too much time was spent in the emergency phase, and should have moved to development quicker. UNTAET worked at a grueling pace, having to do it all, everything, the whole infrastructure and all the development.”107 Whereas those in the cities strove for the benefits of greater global linkages, the individualist and contractual nature of capitalism threatened to unravel the communal notions that bound the social fabric. Ignored in large measure by the international community and their own government, the majority of East Timor’s small population reside in mostly remote and inaccessible areas where rural, agrarian village life

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and traditional customs remain prevalent. Agriculture is the backbone of the economy and the failure to provide enough resources for this sector was a serious mistake. Thirty-seven percent of the UNTAET budget, much of it wasted on overhead and inefficiency, went to education, health, and social affairs; 17 percent to law and order, justice, and customs; but only one percent to agriculture.108 Roads to the countryside, water supplies, and sanitation were overlooked; meanwhile, piles of garbage built up in above-ground dumps in the small provincial towns that attract local farmers to the weekend markets. The influx of foreigners and their non-biodegradable products (plastics, metals, glass) rapidly littered the formerly pristine environment in systems yet unable to effectively recycle and accustomed to consuming natural, unprocessed foods and discarding or burning organic waste that easily returns to the soil. Moreover, East Timor faces, or is being made to face, the challenge of attempting a transition to a modern consumer-oriented market economy and the need for land reform as a subsistence economy with communal landholdings.109 Customary land (tanah adat in Indonesian) and common property began the process of being shifted to individual property rights with the guidance of World Bank advisers under the 2003 First Property Law. Property rights again reflect the failure to link postconflict peacebuilding to the real causes of conflict. Communal landholding was not among the causes of violence, but somehow became an aspect of the peacebuilding solution. These socioeconomic choices often contribute to domestic and international skepticism toward the motives of outside states and international financial institutions.110 More alert to such reactions, UNDP began a joint program with the government to employ the traditional law of environmental protection (terra bandu) to resolve such land disputes in 2009. Standards must be equated with comparable countries to examine the outcome of the development sector in poor countries. Figure 3.5 on the following page illustrates the performance in East Timor on several human development indicators, alongside a nation of similar proportions and scale, Papua New Guinea, and the major regional actor and former sovereign, Indonesia. Some sectors have improved, in part as a result of simply the end of violence. Life expectancy has risen from 49 years of age to 60, surpassing Papua New Guinea, though lagging a decade behind Indonesia. A related indicator, infant mortality, was halved from 2000 to 2007, though the figure is still relatively high, double that of Indonesia. Another area of demonstrable progress is the gross national income (GNI) per capita, which has exhibited steady growth, quickly moving beyond Papua and approximating Indonesia’s level.

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Figure 3.5

Human Development Indicators in Southeast Asia

Indicators HDI Rank 2002 2003 2004 2005 Population (in millions) 2002 2003 2004 2005 GDP (US$ Billions) 2002 2003 2004 2005 GDP per capita (US$) 2002 2003 2004 2005 Life Expectancy (years) 2002 2003 2004 2005 Adult Literacy (% age 15+) 2002 2003 2004 2005 Infant Mortality (/1,000 births) 2000 2007 GNI per capita, PPP (US$) 2000 2005 2006 2007

East Timor

Papua New Guinea

Indonesia

158 140 142 150

111 137 139 145

111 110 108 107

0.7 0.9 1.0 1.1

6 6 6 6

217 217 220 226

0.4 0.3 0.3 0.3

3 3 4 5

173 208 258 287

497 389 367 358

523 578 677 840

817 970 1,184 1,302

49 56 56 60

57 55 56 57

67 67 67 70

59 59 59 50

65 57 57 57

88 88 90 90

85 47

60 54

36 26

820 1,500 1,970 3,080

1,630 1,740 1,730 1,870

2,260 3,040 3,310 3,580

Source: 2004-08 UNDP Human Development Reports; 2009 World Bank World Development Report.

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Optimistic anticipation that a peace dividend would materialize to underwrite political reform and build the foundations of a just society failed. Perhaps the most successful peace processes have led to the most violent societies, such as El Salvador and South Africa, where a peace dividend failed to materialize and criminal violence was rampant.111 On the ground in East Timor, much was left unfinished. Serious obstacles presented by decades of under-development, the legacy of conflict, and mutual mistrust by opposing factions prevailed. Poverty itself does not lead to outright violence, but inequality and perceptions of relative deprivation are important ingredients in any conflict. Many indicators of development demonstrate Timor’s small economic base and its inability to improve the basic quality of life. According to the 2005 UNDP Human Development Report, East Timor is ranked 150th out of 177 nations based on its human development index, the lowest in Asia, though up from 158th in 2002.112 East Timor is the poorest nation in Asia with a national budget of $79 million in 2003 (60 percent of which came from international aid), a gross domestic product (GDP) of $0.3 billion, a per capita GDP of $358, and 42 percent of the population below the poverty line of 55 cents per day in 2008. While the GDP per capita has declined over the period since 2002, both Indonesia and Papua New Guinea have grown by over 60 percent. In 2007, unemployment was estimated at 50-70 percent, with poor coffee and crop harvests and a severe rice shortage.113 Preparing the next generation was particularly deficient: infant mortality rates are high, schooling rates are low, and adult literacy stands at only 50 percent. The UN priority on urban development, which continued under the Timorese government, is reflected in the skewed provision of services between city and countryside. In Timor’s urban sector, 77 percent had access to water and 66 percent had access to sanitation; only 56 percent and 33 percent in the rural sector had access to water and sanitation respectively. The percent of the population with access to water and sanitation was slightly less than in Indonesia and Papua New Guinea. Services are currently the largest sector of the economy, though agriculture will surpass it as services continue to decline following the international departure. Alleviating abject poverty through the delivery of basic services would likely reduce the resort to violence, though any potential conflagration will be greatly affected by what lies beneath the sea and the resultant appropriations of its wealth. Natural resources, especially petroleum, from the off-shore potential are the primary hope for economic growth. East Timor receives 20 percent of the main off-shore resource area known as Greater Sunrise and Australia takes 80 percent, while East Timor gains 90 percent of the

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less lucrative fields. Optimism over the Timor Gap’s potential for resource wealth (more than $400 million per year as of 2008) to be the basis of the Timorese recovery was dealt a setback when Australia bullied its smaller neighbor into accepting a minor share of its benefits, though a more acceptable accommodation was reached in May 2005.114 Of course, the fluctuation of commodities markets can destroy fragile economies that are primarily based on a few export products, and new industries such as oil, natural gas, and logging risk harming the environment. With international consultation by the IMF and Norwegian advisers, East Timor wisely passed a Petroleum Fund Law in August 2005 to hold the assets that accrue from energy resources; the trust fund held over $1.2 billion in petroleum and gas revenue by 2007. Dependent on the goodwill of the international community, domestic choices were tailored to the strategies of donor countries and powerful regional players, and new leaders were confronted by the dilemma of accepting IMF, World Bank, or Asian Development Bank (ADB) loans or maintaining policy autonomy. Prime Minister Alkatiri opted to avoid such loans in East Timor and instead to wait patiently to reap the benefits of future gains in energy resources. Evaluations of UN reconstruction efforts at sustainable development must consider various structural impediments such as land, labor, technology, and resources, and particularly the place of peripheral nations as labor-intensive destinations for rich-world capital in a global political economy. Development has proven enormously difficult even for countries endowed with abundant natural resources and land and since UN programs are always in poor countries, criticism should be tempered. The forces of globalization are certainly more powerful than the weak states where UN peacebuilding occurs. Several years is simply too short to make the long-term structural changes to diversify the economy and encourage sustainable development, even if that was the avowed goal. Ironically, foreign investment and the international division of labor has largely bypassed East Timor due to their lowerskilled, agriculturally-based workforce and poorly developed infrastructure. In the end, the United Nations squandered enormous budgets, failed to deliver services adequately, was unable to promote long-term growth and instead built temporary infrastructure for foreign access. Thus, the UN’s socioeconomic reconstruction was only marginally successful at improving the basic quality of life, which hindered attempts at societal reintegration. Moreover, the international community neglected to prepare for other future changes resulting from the social transformations it had unleashed.

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A Future Orientation

The previous segment emphasized extending the long-term responsibilities to address the historical obstacles to peace; this section recommends a further inclusion of possible new conflicts and social changes that may impede progress. Peacebuilding tends to address the immediate and proximate causes of political violence that precipitated an international response. In this sense, the United Nations is often ‘fighting the last war,’ rather than preparing for future challenges, as aspiring political rivals vie for power, younger generations come of age, and new narratives of national identity, cultural symbols, monuments, and textbooks are constructed. Imagined communities may suddenly change, whether based upon language, region, ethnicity, or past collaboration; thus, addressing identity is a prominent aspect of the peacebuilding project absent from any mandate. If the United Nations takes over a guiding role in the fundamental aspects of social life as described above, more intimately participating in the creation of a new national identity by bringing multiple voices to the table to consider such elements could just as easily be part of a mandate, particularly public school curriculum and writing textbooks. Forging a National Identity

Post-colonial insecurity and difficulties in constructing a unified national identity led to further tensions in East Timor. As religio-cultural traditions break down to secularization, nationalism and charismatic leadership are often the only tools to maintain domestic solidarity. Yet nationalism is a double-edged sword, inclusively unifying a diverse populace or excluding disloyal or undesirable elements, such as distinct ethnic or religious minority groups. In the creation of any postconflict nation-state, governments choose the national language and other cultural symbols to promote a particular narrative of national identity that underwrites its own perceived history. Peacebuilders must also address the fundamental aspects that bind societies together in transitional settings, the creation of a new national identity and the construction of new institutional authority(-ies) with commensurate legitimacy, while preparing for potential pitfalls in the process.115 Father Jovito Aráujò, Vice-Chair of the CAVR, explained how identity will be a large problem for Timorese: “first, we were Portuguese subjects, then we were Indonesian subjects, now we are alienated and lost, looking to belong to a community.”116

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Historic divisions between European and indigenous, coastal and highland, and various linguistic groupings as well as latent rivalries between easterner and westerner and (to a lesser extent) between those from patriarchal or matrilineal cultures challenged the construction of a common national identity. Ethnic identity is complex in the Timorese context due to the numerous waves of voluntary and managed immigration patterns. Intermarriage across region and village blurred clear lines of ethnic differentiation and rigid distinctions between Asian, European, and Pacific Islander backgrounds are relatively minor; thus, Timor lacks a strong history of ethnic conflict. Yet long-ignored regional variations bordering on ethnic differences have become a source of controversy and debate. In the Portuguese era, Eurocentric racial policies constructed hierarchical ethnic identities based on imagined superiority and repressive state policies. Unlike the Dutch attempts to mitigate the vagaries of colonial rule, the fascist ‘estado novo’ government of Antonio de Oliveira Salazar that seized power in Portugal in 1926 instituted the Colonial Act of 1930 which only granted rights to the ‘civilized,’ at the time deemed merely 1.8 percent of the population.117 Increased, and increasing brutal, attention paid to the colony by the Salazar government began to permeate most areas of local life. To become assimilated and thus gain Portuguese citizenship, a Timorese had to speak Portuguese, earn sufficient income to maintain his family, and prove he possessed good character; though these criteria were waived for businesspersons or civil servants.118 The psychological effects of the inferiority complex on identity wrought by colonialism are difficult to measure, but cannot be discounted in reactions to outside intervention. Moreover, mestiço dominance, in some cases the former Topasse, is still evident in the landholding and political power of a handful of Portuguese-Timorese and Arab-Timorese families. Yet the greatest change brought by the Portuguese was of course religious. After the 1975 invasion, the Timorese population became overwhelmingly Catholic for several reasons. Indonesia’s image as a new (Muslim) colonial usurper discouraged indigenous conversion to Islam and facilitated a willingness to identify with any faith that was not, or was opposed to, Islam. The growing transnational liberation theology movement within the Catholic Church was in full bloom by the early 1970s and resonated with the clergy and people of East Timor.119 Liberation theology’s emphasis on social justice for the poor struck a chord and reinvigorated the idea of Catholicism for the masses. Matthew Jardine described how Jesuit teachers “discussed burgeoning nationalist movements and progressive approaches to Third World development,

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and promoted a sense of Timorese identity” among many Timorese seminary students who later worked for the Portuguese administration.120 Finally, the indigenization of the Catholic clergy in East Timor and their consequent vocal resistance to Indonesian authority granted much needed legitimacy to the Church. As Bilveer Singh pointed out, the clergy remained loyal to the local population during the harsh times, Indonesia built new places of worship and roads that allowed the Catholic centers to reach the mysticism-animism areas, the influx of Islam forced the Catholic Church to reevaluate and reinvigorate itself, and the promotion of the pancasila required choosing one religion.121 In 1975, the church ceased to be part of the Portuguese Church, though did not become part of the Indonesian Church, and was thereafter directly administered from Rome. Several attempts at integration with the Indonesian Church failed due to Vatican disapproval, and in essence, the East Timor Church became a de facto autocephalous body. Meanwhile, the ‘indigenization’ of the Timorese clergy led to the more frequent use of Tétun in the liturgy and in everyday interaction between the priesthood and the masses; the Vatican granted formal approval in October 1981. This Timorization of the Catholic Church was essential and symbolized defiance toward Indonesia as well as an inward bonding reaction among the ethnically mixed population. Yet Indonesia sought to replicate its patronage system in provinces like East Timor, offering significant economic improvements during its occupation and even constructing a towering statue of Jesus Christ, Cristo Rei, outside Dili. The three statues below (see Figure 3.6) represent the ways in which Indonesian authorities tried to legitimize their rule through public art. Figure 3.6

Pro-Indonesia Statues in East Timor

From left to right: Monumento Integrasaun, Pramuka, and Cristo Rei. Photos: by the author, Dili, East Timor.

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Monumento Integrasaun depicts the heroic Timorese liurai Dom Boaventura from Same in Manufahi district wearing traditional clothes, with a traditional headdress (caibauk) used on ceremonial occasions, holding a staff for fighting and a sheathed machete. Boaventura is shown to be breaking his chains from the Portuguese colonial oppression and returning to his ‘Indonesian’ homeland, symbolically legitimizing the occupation by seeking to play on anti-Western and antiPortuguese attitudes among Timorese. Following his early twentieth century rebellion, Boaventura was arrested by Portuguese authorities, killed, and his body was dismembered and buried in various locations around Timor to signify that his spirit would not return.122 A second statue (not pictured) of Dom Aleixo Cortereal (né Nai-Sêssu), an Ainaro liurai who fought against the 1942 Japanese invasion, was also built and promoted by Indonesia as an anti-imperialist icon to promote a common identity. According to Filipe da Costa, Cortereal was killed and dismembered by the Japanese; most of his body was burned.123 The second statue depicted is more straightforward; two Indonesian Pramuka youth organization members (one male, one female) hold the Indonesian flag to promote pancasila and martial discipline. Similar statues are placed near military installations around Indonesia and linked East Timor to the greater Indonesian nation through the spirit of the military and the unity represented by pancasila. Indonesia went further in spreading nationalism than public art and banned the use of Tétun and Portuguese for instruction in public schools in favor of Bahasa Indonesian and sponsored the Youth Front for Upholding Pancasila (Gadapaksi) that enforced the ideology. Aside from creating a cohort of loyalists, integration with Indonesia also affected the demographic make-up of the province. In order to relieve population pressures in the relatively crowded islands like Java and Bali and to fill ‘empty’ land in places like East Timor, Jakarta used a ‘transmigration’ program to try to create a pan-Indonesian identity and to serve the security needs of the military. In 1992, an estimated 100,000 Indonesians were living in East Timor in a total population of about 750,000, though nearly all have left, many mixed Indonesian-Timorese remain.124 Before independence, a unifying national identity in East Timor was developed based on the notion of heroic resistance to the Indonesian occupation, fortified by two traits: adherence to the Catholic faith and not speaking Bahasa Indonesian, instead using Portuguese or a local language like Tétun. Without a common enemy (once Portugal, then Indonesia), the Timorese political climate has become increasingly hostile and both old and new schisms have appeared. Fissures over language, regional identification, past political allegiances, and the role

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of foreign interference quickly began to destabilize national cohesion. Thus, Timorese national identity in the twenty-first century will be vigorously contested and is likely to be fought out regarding two qualifications: language and history. Disputes over language threaten to become a defining political difference and a rallying point for opposition movements. Lusaphone countries are funding Portuguese language instruction, globalization encourages English language skills for communication and the market, and Indonesian is practical due to the importance of Timor’s giant neighbor and its common usage, though current use was limited by its political undertones. Portugal, the former colonial administrator has maintained a cultural agenda, funding Portuguese language programs and schools and successfully lobbying for its inclusion as a national language. In fact, Portugal may have fostered more productive development programs since 2000, the year the CNRT adopted the Portuguese language, than it did in the whole of its colonial occupation. In spite of over 400 years of colonial administration, few physical remnants of Portuguese influence survive in East Timor, aside from the remodeled Parliament building, Palacio do Governo.125 Among the various languages and dialects, the battle between Tétun, Indonesian, and Portuguese is fomenting deep divisions since the government rewards Portuguese speakers with appointments and positions. The choice to include Portuguese as an official government language despite the fact that only five percent of the population speak it created an enormous rift; Tétun struggles to compete against its better-funded counterpart as it has only now become a written language. While linguistic differences overlay other growing regional disparities (Mambae, Bunak, and Kemak speakers in the west near Atambua, Makasae and Fatuluku in the east, Baikenu in Oecusse), speakers of various Timorese languages and dialects are now coalescing around a standard version of Tétun.126 The growing gap between urban and rural, the capital and the districts, and east and west due to limited transportation routes, poor lines of communication, and the unequal disbursement of funding and job opportunities overlay long-held cultural distinctions and symbols as well as linguistic differences. Growing tensions between the east, loro’sae (Baukau, Los Palos, and Viqueque), and the west, loro’muno (the other ten more western districts), suggest the possibility of ethnic conflict arising.127 These subtle divisions were long latent in East Timor, particularly during unifying times such as opposition to Portuguese imperialism or Indonesian occupation. These regional or ethnic variations became especially acute in the security forces. In the face of

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the Indonesian onslaught, the eastern part of the country held out the longest before the fall of Matebian and thus its soldiers are seen as more responsible for the ultimate victory of independence, whereas resistance in the west collapsed sooner and some there collaborated with Indonesia. Regional differences were apparent in the elections as well, with FRETILIN winning at a 4:1 ratio in eastern locales like Viqueque, where Lu Olo out-polled Ramos Horta 20,512 to 5,627; the phenomenon reversed in western areas like Bobonaro and Ainaro. In fact, many of the displaced persons in Dili during the 2006-2007 violence were easterners supported by FRETILIN. Personal and family legacies of whom collaborated and who resisted was also a criterion of who should prosper and be rewarded in the new East Timor, risking social unity. As Damien Kingsbury and Michael Leach observed, “The East Timorese are notable for the capacity to know the political allegiances not just of a particular individual, but of their parents and often grandparents, this lineage then being assumed to determine successive allegiances.”128 Aside from this widespread pattern, personal allegiance remained as it always had, to local leaders at the village level and to one’s district. Customs and practices were based on traditional arts, crafts, and lulik, all of which were regionally diverse. Linguistic, political, and regional disputes are clearly visible, and the danger of a once unimagined ethnic conflict could result, whether a resumed antagonism between the indigenous populations and mestiços (as with the Topasse of centuries before), which remain economic, social, and often political elites, or newly forged sectarian communities of some sort or another. The imagined communities of group identity change; thus, policy-makers and peacebuilders must not only understand the past sources of violence but also prepare for new causes of conflict. As Geoffrey Gunn pointed out, national symbols were not in short supply: the crocodile, traditional swords, Mount Ramelau, the Christian bible, the sun, fighting cocks, as well as the trappings of the liurai: uma lulik, balak (the metal crescent worn around the neck of a man), caibauk (a crescent shaped crown), a surik (sword), and a mortem (coral necklace).129 Demographic Change

East Timor faces the burdens of rising population growth following a post-war baby boom; this demographic swing toward youth will challenge the status quo. Between 1999 and 2004 alone, female fertility in East Timor jumped from five to eight children per woman.130 The median age is only 20 years old and 45 percent of the population is

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under 15 years of age, though life expectancy at birth has expanded from 40 years in the period 1970-1975 to 56 in the period 2000-2005 and more recently to 60. Shifting demographics and the priority of investment in cities also presents dilemmas regarding the high migration of youth to urban centers, and the urban population has swelled from less than eight percent in 2003 to more than 26 percent in 2005 (compared to 13 percent in Papua New Guinea). One side effect of the UN’s emphasis on the capital as the locus of its agenda and base of operations was the enormous migration to Dili it set in motion. The slow rural to urban transformation that in most societies takes over a century is occurring within a decade. Unemployed young males, freed from the obligations to toil in the fields for subsistence, seek quick profits from any money-making activity, including joining gangs and entering illegal industries. The place of the city draws flocks of job seekers hoping for the largesse provided by the international presence or the increasing government spending flowing from petroleum revenues. The urban-rural dichotomy also contributed to new or renewed identity conflicts. In Timor, those from the capital (ema Dili) or coastal plains (ema fehan) were considered more sophisticated than those from the highlands (ema foho). Contributing to these stereotypes, Portugal distinguished country folk Firaku (vira o cu in Portuguese) who were considered violent and rough and Kaladi (calado in Portuguese) who were seen as more refined but not as clever. Setting aside such prejudices, attitudes toward independence generally reflected such demographic differences; older and rural respondents to an Asia Foundation survey had the most positive outlook regarding the future of the country, while the vast majority of the 20 percent who held a negative view toward the future were in the urban cities of Dili and Baucau.131 Similarly, generational differences that reflect one’s personal political background as well as characteristics for a broader age cohort offer clear lines of differentiation and new rivalries. A sort of unspoken tension exists between those who remained in East Timor during the Indonesian occupation and those who did not. Among those who departed, popular attitudes differ toward first “the Mozambicans,” (a.k.a. Maputu) who were ideologically more orthodox Marxist, often spoke only Portuguese (not Tétun), and have remained more skeptical of financial debt and the international community; next, Portuguese returnees (including seminarians) who spoke Portuguese and hoped to expand ties to Portugal; and finally Australian returnees who have developed greater links with Anglo-American culture, are more comfortable in the English language, and may have a more pro-free

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market orientation. Of course, those who studied and worked in Bali or other parts of Indonesia may also be treated with even greater skepticism. Lacking stability, East Timor has been beset by unremitting economic hardships and significant migration abroad, often of the most talented leaving for Australia, Europe, Indonesia, or elsewhere. Among those who remained, obvious tensions exist between those who wholeheartedly collaborated and gained the perquisites of education or civil service, those who actively resisted through clandestine activities or armed combat based in the hills, and those in between, such as Mario Carrascalão. James Fox has identified two generations of Timorese: those who came of age in the 1970s versus those from the 1990s.132 Each group has distinct ideological backgrounds (anti-imperialist versus internationalist), speak different languages (Portuguese versus Indonesian), and enjoy varying levels of political clout. This generation gap has serious ramifications for political leadership; in fact, a similar pattern in the armed forces threatened its unity, as younger personnel who did not suffer during the occupation advanced. Taking his analysis one step further, the 1975 generation also consider the violence of the invasion and occupation to be the worst crimes, while the youth tend to emphasize the 1999 violence. During the national liberation struggles, resistance solidified nationalist credentials and incarceration by Indonesian authorities was a badge of honor. Externally contrived conditions of deprivation and war allowed often nationalistic, hard-line militarist leaders who were inherently unwilling to compromise to assume positions of domestic leadership in these harsh environments that marginalized moderates and prevented spaces for civil society. FRETILIN’s uncompromising leadership, forged in the previous era, held power in the new East Timor, as they commonly sought to sideline rivals, centralize authority, and establish single-party dominance. Much of the ongoing tension resulted from the failure of competing political interests to negotiate a fair compromise to share power and the unclear influence of Western powers, particularly Australia. Many in the heroic resistance did not die a martyr’s death, but rather became mere mortal men of politics, their steel tarnished in the partisan battles. The steadfast resistance of FRETILIN guerrillas (like party chief Lu Olo) who survived in Timor’s unforgiving mountainous terrain earned the respect of the population, and Xanana Gusmão became a cult-like figure due to his ability to long escape capture, before his negotiated surrender in November 1992 and imprisonment at Cipinang jail in Indonesia. Gusmão signaled his desire to withdraw from public life after his presidency, but instead he became the head of his own

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political party and finally prime minister in the fall of 2007. José Ramos Horta is the pragmatic diplomat, capable of making deals and committed to his international role, even flirting with the idea of a run for UN secretary-general. Bishop Belo remains a symbolic persona capable of encouraging the public toward reconciliation.133 His health seems stable, but he rethought his one-time idea to run for president and his temperament may not suit public criticism in any case. Opposition leader Mario Carrascalão was tainted by his governorship during the Indonesian occupation and political attacks from the FRETILIN government, though his career was resurrected by his inclusion as second vice premier in 2008. Other exiles such as former Prime Minister Mari Alkatiri and Interior Minister Rogerio Lobato participated in the Mozambican independence movement, where they forged a Marxist dialectical view of political struggle. Alkatiri remained largely unpopular before his forced resignation in June 2006, along with Lobato. Political parties have certainly competed for the aura of resistance. Under Alkatiri, FRETILIN adopted its own short-lived Timorese Republic banner as the national flag and assigned 28 November, the original day of independence, as the national day; Pátria Pátria by Francisco Borja da Costa (who was killed in the 1975 violence) was chosen as the national anthem as it had been played at the initial independence in 1975. Reflecting the spirit of the times and to be sung in Portuguese (lacking a Tétun version), the song’s lyrics translated into English are as follows: “glory to the people and the heroes of our liberation, we vanquish colonialism shouting: down with imperialism! Free land, free people, no, no, no to exploitation.” Gusmão would reciprocate in the 2007 elections, adopting the CNRT acronym to recall the unifying alliance of resistance groups of the 1980s and 1990s. Both groups of FRETILIN and former FRETILIN leaders, be they domestic guerrillas or returning exiles, may have lacked the transparent and compromising decision-making to govern effectively and openly. The 2007 electoral results still exhibited the generational gap in Timor, with the victories of Ramos Horta and Gusmão. Who will take the place of these towering figures of Timorese politics? A new third generation appears to be forming, composed of those who grew up under the UN/international presence during the 2000s in more relative comfort and may lack the unifying ideals of struggle and resistance. Centered in Dili, a new segment of urban society seems more interested in fashion, enjoyment, entertainment, and other cosmopolitan things, and less on the traditional way of life of respect for the uma lulik, village sensibilities, and traditional family

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obligations and mores. One might even label such a group the new assimilados, who have adopted the norms and values of the benevolent, albeit secular, occupiers. As Sara Niner wrote, “younger activists hold no attachment to the lost world of priests and white-suited colonials.”134 In interviews, young people commonly expressed admiration for the struggle of their forbearers, but doubted their ability to govern. The generational disconnect has only widened after the 2006 violence and 2007 elections. One Timorese in his late twenties recognized the discontent brewing, and expressed that “the young feel very isolated, particularly in the villages.”135 A new Democratic Party (PD) performed well in 2007, garnering support from young students who studied in Indonesia and led by a figure popular with the youth, La Sama. As one PD supporter expressed, “It’s time for young people to replace the old ones, who have brought only chaos to this country.”136 The leadership from the 1970s operated in a zero-sum mindset necessary to its own security in the resistance, and as de facto chiefs were granted authority in the UN’s transitional process. The unintentional exclusion of youth from public administration and political party building allowed the replication of former battles to be replayed as the UN’s tutelage did not mentor those already with positions of political power and those who aspire to such public service. Seed money from democracy-building NGOs offers a small alternative foundation to support the influx of this new generation, but recipients risk being seen as tools of foreign powers. Of course, the population now has the opportunity to settle their competitions at the ballot-box, but democratic contests alone do not long offer the full legitimacy to govern in traditional societies. Conclusion: Did the United Nations Build Peace?

The United Nations successfully ended outright intrastate violence and established the political independence and territorial integrity of a sovereign state negatively impacted by colonial practices and the strategic interests of great powers and neighboring states. The international community helped to normalize society following civil war, crimes against humanity, massive dislocations, humanitarian catastrophes, economic upheaval, and corrupt administration; moving the nation from protracted civil strife to a reduced level of political and criminal violence. The UN peacebuilding mission focused on security, infrastructure, and Timorese self-government, followed by development and the rule of law, with some clear successes in delivering humanitarian relief, refugee return, initial security, and building a

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foundation for democracy. War fatigue and the desire of the local population for peace and stability helped to make UN peacebuilding modestly successful, though the recurrent resort to armed conflict to resolve political disputes largely means that the United Nations failed to achieve a long-term peace in East Timor. A major byproduct of the type of intervention and state-building exercise that was implemented in East Timor is significantly raised expectations: of free and fair elections, of an independent judiciary, of respect for human rights and the rule of law, of efficient and good governance, and of socioeconomic development. When contemporary realities do not fulfill these expectations, unrest, instability, and violent conflict often result. In East Timor, the rule of law and democratic institutions are weak, the private sector is small, several landowning families hold vast estates and businesses, and few entrepreneurs have the capital or access to affordable micro-credit loans to start small businesses. Collectively, the private sector remains marginal due to overall weaknesses on education, the absence of a middle class with a commitment to reform, and dependence on foreign aid. Civil society is foremost the Catholic Church, informal village-level organizations, and local though usually internationally-financed NGOs, along with militant karate/ninja/silat youth gangs. Knowing UN peace missions are limited short-term affairs, the new government had little incentive to cooperate with the United Nations and quickly prepared to sustain its power after the brief international intervention. Disillusionment with the pace of state-building quickly became apparent, though a tenuous peace has held. Forging a common national identity, equitably distributing resources, and debates over language policy increasingly divide the polity. East Timor remains relatively weak, its political institutions threatened by patronage and corruption, as it sits in the throes of civil unrest. Even more troubling, a wave of violence hit East Timor in the spring of 2006, summer of 2007, and in 2008, brazen attempts to kidnap the president and prime minister saw the former shot multiple times and narrowly escape death, a new low point in the postconflict peace efforts that undermined UN rhetoric touting East Timor as a successful case of peacebuilding. UN peace operations symbolically represent a global commitment to peace on behalf of the international community, though most countries suffering from protracted ethnic or political conflicts never experience international peacemaking. ‘Symbolic’ peacebuilding usually lasts about two years, as the international community gently removes former trouble spots from the international radar screen by resolving questions of international legitimacy regarding national self-

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determination. The United Nations has proven to be an acceptable actor in taking on the great responsibility of fostering independence and building peace since it lacks the historical baggage of former colonial powers that abdicated their responsibilities as administrators, or were pushed out by liberation movements anxious for de-colonization. A long-term substantive peacebuilding would take a quarter century to truly build a viable and self-sufficient nation-state and would require the United Nations to assume a trustee-like status. The methodical approach adopted in the handover to China of former colonies like Hong Kong by Britain and Macau by Portugal demonstrates the potential utility of a gradual transfer of sovereignty. Such a choice could allow values of human rights and the rule of law to take root slowly through grassroots education and joint training, and institutions like the military, police, courts, and others to evolve independently of political interference. Such a program could include professional training alongside the appropriate personnel in the domestic context of a trust state, i.e. for Timorese to be trained in Portugal followed by supervised administration within the trust nation. However, this paternalistic form of substantive peacebuilding too closely approximates colonialism and is thus politically unpalatable. Nor is the United Nations equipped with the resources and political will to conduct such peacebuilding. Once stabilized, minor states caught up in larger geo-strategic realms slowly begin the process of returning to relative anonymity. The United Nations has become beholden to its symbols of success, particularly East Timor, anxious to prove its capability to independently manage peace operations. The international community’s frequently paternalistic attitude, the casual arrogance of UN staff, and the failure to comprehend the local context of each mission, instead relying by and large on a one-size-fits-all approach, humbled the peacebuilding project. As Geoffrey Gunn explained, “transplanting democracy, equality, rights, transparency, etc. in a society steeped in Catholicism-animism/ primordialism, where literacy and education levels are woefully low, where communications are backward, where localism prevails, has its severe limits, notwithstanding UNTAET triumphalism and the best intentions of the internationals.”137 The failings were not so much of tactics and personal behavior, though these were significant, but rather the lack of a strategic vision willing to adopt a comprehensive long-term approach that incorporated a future orientation and recognized demographic shifts and the struggles of identity. The great Timorese victory of independence is likely to stand, a serious achievement on its own; though attaining development, good governance, or national harmony will be even more of a challenge to this surprisingly diverse

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polity as self-determination has removed its unifying rationale. The true test of these ephemeral institutions and consequent choices will take more than a generation and will require long-term investment in social capital, constant vigilance, and a periodical reinvigoration of new ideas to encourage success. Transitional justice would face the same challenges as building peace: Western practitioners competed with local practices, seeking short-term solutions to long-term problems while employing temporary personnel to overcome permanent obstacles. Notes 1. Information can be found at the United Nations website http://www.un.org/peace. UN Security Council Resolution 1704 created UNMIT on 25 August 2006; UNMIT included 1,608 UN Police and 34 military liaison and staff officers and Atul Khare of India was UNMIT’s Special Representative of the UN secretary-general. Hasegawa also served as SRSG during UNMISET. 2. The International Organization of Migration (IOM) managed most of the camps along with Catholic Relief Services and the Red Cross. 3. Anonymous Professor of Sociology, interview by the author. 4. Aside from my own observations in East Timor, see Susan Woodward, “Economic Priorities for Successful Peace Implementation,” in Stedman, Ending Civil Wars, p. 208. 5. Stephen Fitzpatrick, “Anger at UN Drink Driving in Timor,” The Australian, 7 May 2007. 6. In East Timor, two Jordanian CIVPOL officers were accused of raping a girl in 2001. Mark Dodd, “Diggers in Timor ‘Sex’ Clash,” The Australian, 21 March 2005. Exploitation of sex workers by UN personnel was notoriously problematic in the Congo. 7. Lindsay Murdoch, “UN Turns Blind Eye to Use of Timor Brothels,” The Age, 7 May 2007. 8. Reputedly, Singaporean and Korean contingents were very effective in East Timor. 9. See Zisk, Enforcing the Peace for a comparison of peacebuilding and colonialism. 10. The UN Trusteeship was limited to the League of Nations mandates from World War I and only a few other non-self governing territories. 11. Charles-Philippe David argued that most academic work on peacebuilding is based on a Kantian liberalism and democratic peace theory that emphasizes individual freedoms, separation of powers, representative government, the rule of law, capitalism, free trade, market interdependence, and the use of international organizations, Charles-Philippe David, “Does Peacebuilding Build Peace?” in Jeong, Approaches to Peacebuilding, p. 25. Roland Paris and Oliver Richmond have also begun to examine such premises and the overwhelmingly Western-oriented theoretical foundations of peacebuilding, Richmond, Maintaining Order, Making Peace and Paris, At War’s End. 12. Holloway, interview by the author.

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13. Perreira, interview by the author. 14. Giguiennto, interview by the author. 15. Sister Bernardita, interview by the author. 16. Anonymous Senior UNTAET and UNMISET official, interview by the author. 17. José Luis Oliveira, interview by the author. 18. S/RES/1272 (1999), UN Security Council Resolution 1272 of 25 October 1999. 19. Smith with Dee, Peacekeeping in East Timor, p. 62. 20. The INTERFET operation included troops from Australia, Brazil, Canada, France, Italy, Malaysia, New Zealand, Norway, the Philippines, South Korea, Singapore, Thailand, the United States, and the United Kingdom. The force peaked at around 10,000 troops, more than half from Australia. 21. Smith and Dee, “East Timor,” p. 412. 22. An investigation by the Inspector-General of Intelligence and Security Ian Carnell reportedly verified that the shut down had been intentional. Staff Writer, “Soldier Claims Australians Exposed in East Timor,” Sydney Morning Herald, 25 July 2005. 23. Kavi Chongkittavorn, ‘How Serious is ASEAN about Security?” The Nation (Thailand), 8 March 2004. 24. Prior to 1 April 1999, the Indonesian Armed Forces (TNI) was known as ABRI (Angkatan Bersenjata Republik Indonesia). 25. Smith and Dee, “East Timor,” p. 418. 26. Michael Smith uses the phrase disciplined and compliant in commending FALINTIL for its diligence, Smith with Dee, Peacekeeping in East Timor, p. 49. 27. Despite this window dressing, Australia was essentially in charge of the East Timor operation, causing consternation among regional actors. 28. The last Indonesian military forces departed on 31 October 1999, UNTAET was deployed in September 2000. 29. S/RES/1264 (1999), UN Security Council Resolution 1264 of 15 September 1999. 30. Clutterbuck, interview by the author. 31. Adelman, “Refugee Repatriation,” p. 282. 32. Barnes, interview by the author. 33. Adelman, “Refugee Repatriation,” p. 282. 34. Many of the remaining refugees, about 25,000, were favorable toward Indonesia and are not likely to return. 35. Alves, interview by the author. 36. Sharma, interview by the author. 37. Anonymous USAID Program Officer, interview by the author. 38. S/RES/1272 (1999), UN Security Council Resolution 1272 of 25 October 1999. 39. Downie, “UNTAET,” pp. 29-40. 40. S/RES/1410 (2002), UN Security Council Resolution 1410 of 17 May 2002. 41. S/RES/1704 (2006), UN Security Council Resolution 1704 of 25 August 2006. 42. Holsti, The State, War, and the State of War, p. 100.

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43. See Max Weber, The Protestant Ethic and the Spirit of Capitalism (Chicago, IL: Fitzroy Dearborn, [1930] 2001) and Emile Durkheim, The Division of Labor in Society (New York, NY: Macmillan, [1893] 1984) for a Western view of the role of rational behavior, bureaucracy, and the state. 44. Gusmao, interview by the author. 45. Merry, Colonizing Hawai‘i, p. 261. 46. Ibid., p. 261. 47. Putnam, “Human Rights and Sustainable Peace,” p. 240. 48. Translations were performed by Nelson Belo; the murals were jointly interpreted by Nelson Belo and the author. 49. The Carter Center labeled the parliamentary elections a “major success,” though about 200 civilians suspected of wishing to disrupt the elections were arrested prior to the presidential election and scores were injured from rock throwing in various locations. Carter Center, “Timor-Leste Parliamentary Election Democratic and Peaceful,” Press Release, 3 July 2007. 50. The full electoral tally was Lu Olo 27.89%, Ramos Horta 21.81%, Fernando “Lasama” de Araújo 19.18%, Francisco Xavier do Amaral 14.39%, Lúcìa Maria B.F. Lobato 8.86%, Manuel Tilman 4.09%, Avelino M. Coelho 2.06%, and João Vieges Carrascalão 1.72%. Lobato became Justice Minister in 2007. 51. The ASDT-PSD coalition and the PD performed best in the western districts and in Dili. Electoral results were as follows: FRETILIN 29.02% (21 seats), CNRT 24.10% (18 seats), ASDT-PSD 15.73% (11 seats), PD 11.30% (8 seats), National Unity Party (PUN) 4.55% (3 seats), AD KOTA-PPT (Alliança Democrática: Association of Timorese Heroes-People’s Party of Timor) coalition 3.20% (2 seats), and the Partido Unidade Nacional Democrática da Resistência Timorense/United National Democratic Timorese Resistance (UNDERTIM) 3.19% (2 seats). Three percent was the minimal threshold to attain parliamentary representation. 52. The CNRT formed a coalition with Fernando “Lasama” de Araújo’s Democratic Party (PD), who became President of the National Parliament and the Association of Timorese Social Democrats and the Social Democratic Party (ASDT-PSD). Together, the ‘Alliance’ totaled 37 seats. 53. Smith and Dee, “East Timor,” p. 433. 54. Zisk, Enforcing the Peace, p. 55. 55. Woodward, “Economic Priorities for Successful Peace Implementation,” p. 208. 56. Giguiennto, interview by the author, and Sister Bernardita, interview by the author. 57. Anonymous, interview by the author, Dili, East Timor, 22 July 2003. 58. United Nations, Report of the United Nations Panel on Peace Operations. 59. Anonymous USAID Program Officer, interview by the author. 60. José Luis Oliveira, interview by the author. 61. Holloway, interview by the author. 62. Holloway, interview by the author. 63. Anonymous USAID Program Officer, interview by the author. 64. S/RES/1599 (2005), UN Security Council Resolution 1599 of 28 April 2005.

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65. S/RES/1704 (2006), UN Security Council Resolution 1704 of 25 August 2006. 66. Ibid. Both elements of UNMIT are from this resolution. 67. Gaer, “Human Rights NGOs in UN Peace Operations,” p. 74. 68. Ibid., p. 74. 69. United States Department of State, “Country Reports on Human Rights Practices: 2004,” 28 February 2005 (Washington, DC: Bureau of Democracy, Human Rights, and Labor, 2005). 70. Freedom House, 2007 Country Report: East Timor, http://www.freedomhouse.org. 71. Reporters Without Borders, “Second World Press Freedom Ranking,” http://www.rsf.org, (accessed 20 October 2003). Papua New Guinea was not considered by Reporters without Borders. 72. Taylor, Indonesia’s Forgotten War, p. 7. 73. Marshall, “Women in War and Peace,” p. 10. 74. Perreira, interview by the author. 75. S/RES/1272 (1999), UN Security Council Resolution 1272 of 25 October 1999. 76. S/RES/1410 (2002), UN Security Council Resolution 1410 of 17 May 2002. 77. Sharma, interview by the author. 78. Mark Dodd, “Timor’s Basket-case Police Force Needs Rebuilding: UN,” The Australian, 8 April 2008. 79. Burton, “Security Sector Reform,” pp. 97-109. 80. Call and Stanley, “Civilian Security,” p. 315. 81. Smith and Dee, “East Timor,” p. 445. 82. Spear, “Disarmament and Demobilization,” p. 142. 83. Ibid., p. 143. 84. Winrich Kühne, “From Peacekeeping to Postconflict Peacebuilding,” in Reychler and Paffenholz, p. 383. 85. Spear, “Disarmament and Demobilization,” p. 146, Woodward, “Economic Priorities for Successful Peace Implementation,” p. 184, Graydon, interview by the author. 86. Spear, “Disarmament and Demobilization,” p. 146. 87. Call and Stanley, “Civilian Security,” p. 315. 88. Edward Rees, “The UN’s Failure to Integrate Falintil Veterans may cause East Timor to Fail,” OnLine Opinion, 2 September 2003. Militia committed 80% of government-based violence, 40% was by the Indonesian military, and 22% by the Indonesian police. 89. Mark Dodd, “Australian Troops Heading to East Timor to Restore Law and Order Face a Number of Warring Factions,” The Australian, 25 May 2006. 90. Alan Sipress, “In East Timor, an Optimistic Enterprise Turns to Ashes,” Washington Post, 2 June 2006. 91. Graydon, interview by the author. 92. Perreira, interview by the author. Denmark focused its resources in East Timor on the justice system and the UNMISET Human Right Unit began a human rights training course for guards. 93. Graydon, interview by the author. 94. Holloway, interview by the author.

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95. To lessen the risks of recurring hostilities, the European Union bought the West Timor home of East Timor’s Supreme Militia Commander João Tavares (age 72) in a deal where he would depart the island. However, Tavares secretly returned to the border town of Atambua in 2004 and attempted to reassure the public of his intentions to live a peaceful life, claiming “Its better to chase pretty women and make love than fight wars.” As of September 2005, Tavares still lives in West Timor. João Tavares quoted in Matthew Moore, “Timor Accused Tears Up Military Deal,” The Age, 22 May 2004. 96. Internally, the CPD-RDTL (Committee for the Popular Defence of RDTL) was a growing potential threat, claiming to be the true FRETILIN and opposing the Portuguese language and exile leaders. 97. UN Commission on Human Rights, Report of the UN High Commissioner for Human Rights on the situation of human rights in TimorLeste, 4 December 2004. 98. UN Security Council Resolution 1867 of 26 February 2009 supported the gradual resumption of PNTL policing duties over the course of 2009 in a phased approach. 99. As part of the tumultuous series of events, Alkatiri had faced down a back bench movement challenging his leadership at the FRETILIN Congress from 17-19 May, where Ambassador to the United Nations José Luis Guterrres lost a leadership vote in a controversial show of hands tally. 100. Kiernan, “War, Genocide, and Resistance in East Timor, 1975-99,” pp. 199-234. 101. Paul Toohey, “UN Guards ‘scared to help shot president’,” The Australian, 21 February 2008. 102. S/RES/1272 (1999), UN Security Council Resolution 1272 of 25 October 1999. 103. S/RES/1704 (2006), UN Security Council Resolution 1704 of 25 August 2006. 104. Sharma, interview by the author. 105. Woodward, “Economic Priorities for Successful Peace Implementation,” p. 208. 106. Ron Waldman, “Rebuilding Health Services After Conflict: Lessons from East Timor and Afghanistan,” Overseas Development Institute, 27 October 2003. 107. Graydon, interview by the author. 108. East Timor Consolidated Budget for Fiscal Year 2000/01. 109. In the 1920s, Manuel Viegas Carrascalão was exiled and deported to East Timor and married a local noblewoman Marcelina Guterres; together they had 14 children. The Carrascalão family is still dominant, owning the Timor Telecom monopoly, the Hotel Timor, vast coffee plantations, and a construction company, while two brothers (João and Mario) are parliamentarians. Eric Ellis, Asiamoney, “Keeping up with the Carrascalãos,” September 2003. 110. For a discussion of the landholding practices in Lautem district, see Andrew McWilliam, “Customary Claims and the Public Interest: Fataluku Resource Entitlements in Lautem,” in Kingsbury and Leach, East Timor, pp. 165-178. 111. See Darby, The Effects of Violence on Peace Processes. 112. All data is from the UNDP Human Development Report unless otherwise marked. United Nations Development Programme, Human

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Development Report: International Cooperation at a Crossroads: Aid, Trade, and Security in an Unequal World (New York, NY: United Nations, 2005). 113. Tim Anderson, “Timor Leste: The Second Australian Intervention,” Journal of Australian Political Economy, no. 58 (December 2006). 114. In November 2005, bilateral negotiations between Australia and East Timor reached an agreement to equally share revenue from Greater Sunrise, allow pipelines to go to Australia rather than East Timor, and defer the final maritime boundary for 40 years. This agreement was codified on 12 January 2006 as the Treaty on Maritime Arrangements in the Timor Sea. 115. See Milliken, State Failure, Collapse, and Reconstruction. 116. Aráujò, interview by the author. 117. Weatherbee, “Portuguese Timor,” p. 684. The 1950 population was: Natives: 434,907; civilisados: 54; mestiços: 2,022; expatriate Asians: 3,176; whites: 568. Gervase Clarence-Smith, The Third Portuguese Empire 18251975: A Study in Economic Imperialism (Manchester, U.K.: Manchester University Press, 1985). 118. Taylor, Indonesia’s Forgotten War, p. 13. 119. Gustavo Gutierrez and Paulo Freire were instrumental in conceptualizing liberation theology in Brazil in the 1960s. Freire offered a critical pedagogy challenging the exploitation of human beings by the state and its economic system, while concomitantly highlighting the importance of literacy in confronting this power. The 1968 Latin American Bishops Conference determined that the Church should work to reform socioeconomic and political structures and become more lay-oriented, and liberation theology came to promote a message of class struggle and empowering individuals within a community to confront social injustice. See Paulo Freire, Pedagogy of the Oppressed (New York, NY: Herder and Herder, 1972). 120. Jardine, East Timor, p. 23. 121. Singh, East Timor, Indonesia, and the World, pp. 235-237. 122. da Costa, interview by the author. 123. Ibid. 124. Jardine, East Timor, p. 64. 125. Despite its brutality, Japan’s brief presence in World War II left some usable roads. Indonesia performed most, albeit modest, infrastructure development. 126. For a description of linguistic issues in Timor, see the writings of James J. Fox, including “Tracing the Path, Recounting the Past: Historical Perspectives on Timor,” in Fox and Soares, Out of the Ashes. 127. Historically, the eastern areas tended to be more inhabited by Melanesian/Papuan populations, while the western regions were more commonly Malay/Indonesian groups. 128. Damien Kingsbury and Michael Leach, “Introduction,” in Kingsbury and Leach, East Timor, p. 26. 129. Gunn with Huang, New Nation, pp. 109-110. 130. UN World Population Prospects 2004, http://esa.un.org/unpp. 131. Asia Foundation, Land and Justice in East Timor. 132. Fox, “Tracing the Path, Recounting the Past.” 133. When I met Bishop Belo in the summer of 2003, he was recovering from serious illness in a hospital in Baucau, East Timor. He remains steadfast in

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his determination to help the nation of East Timor recover as well, and even contemplated a run for president. 134. Niner, “Martyrs, Heroes and Warriors,” p. 114. 135. Anonymous USAID Program Officer, interview by the author. 136. Ahmad Pathoni “Violence hits Timor campaign as candidate urges unity,” Reuters, 4 April 2007. 137. Gunn with Huang, New Nation, p. 123.

4 Justice and Reconciliation: Culture, Courts, and the Commissions Much of the literature on transitional justice discusses aspirations seeking to foster the rule of law, deter war criminals, and end impunity. Now, with growing empirical evidence, scholars can begin to dissemble various aspects of the process and its institutions. This chapter raises two questions: (1) Did transitional justice satisfy demands for accountability, justice, and/or reconciliation? (2) Which model of transitional justice can best achieve these goals? In trying to answer these relatively straightforward questions, it formulates an analytical framework to illustrate the political ramifications of transitional justice in postconflict societies when put into practice, differentiating various constituencies based upon their attitudes toward justice. Next, it describes the range of transitional justice options available in East Timor. No less than four official processes of accountability, both courts and commissions, were formulated to promote accountability. Having explained the preferences of the stakeholders and the available institutions, the rest of the chapter judges how transitional justice was actualized. The merits of each process are evaluated comparatively based on a range of factors, including the degree of public consultation, the subject matter and temporal mandate, financial support, the location of the venue, the conduct and inclusiveness of the proceedings, the public reactions thereto in principle and in practice, and the impact on building capacity. Deriving conclusive answers to these questions is quite challenging. Crimes against humanity occurred in three different eras: the Portuguese colonial era, Indonesia’s invasion and occupation, and Indonesia’s withdrawal. Incidents of political and criminal violence have recurred in a fourth era, during and after the UN presence. Moreover, several broad dilemmas inhibit the realization of the ambitious enterprise to achieve justice and reconciliation: powerful constituents in opposition to such processes, the cultural relevance of various institutions to the public atlarge, and the logistical and administrative challenges emanating from a lack of resources, poor infrastructure, and competing priorities. Therefore, this chapter attempts to not simply audit the performance of

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transitional justice in East Timor as part of a global trend, but to evaluate its relevance within the Timorese socio-political context, thus personal observations and anecdotes are interspersed throughout the narrative in an effort to capture these perceptions. To illustrate some of the recurring themes in the text, the chapter begins with a reflective story from the hybrid court in East Timor. A Day in the Life of the Court

With camera rolling, the 3:00pm afternoon court session begins promptly at 4:15pm to announce that the witnesses did not arrive from the countryside and the court will adjourn until tomorrow at 2:30pm.1 Arriving the following day at 3:00pm, the afternoon court proceedings have just commenced. As usual, no Timorese are in the audience; only a handful of court monitors and myself sparsely fill the aisles. The German public defender has once again launched a tirade against the judges, complaining that the prison guards would not allow her to see her client during the lunch break and that she needed to consult with him regarding the cross-examination. She pleadingly asks for a postponement of the trial since she has just returned from her vacation to Germany, has too many cases and lacks human resources, and did not have adequate time to prepare this case nor to discuss with her client in another trial, João Sarmento. The prosecution counters that the defense had ample time to raise a motion for dismissal in the interim between the Armando dos Santos case and today, and further interjects that the defense had many chamber meetings regarding the trial set for today, had never mentioned dismissal or the indictment, and had the necessary statements for more than one year and could have prepared sooner. The prosecution further adds that this case was not a surprise and no prior suppression of evidence had occurred. One international judge ripostes in arcane language that these discussions implicate differences between civil law and common law formulations. Amid the tête-à-tête, the public defender threatens to resign from the case due to such burdens, causing uproar. Her superior, the head of the Defense Lawyers Unit (DLU), intercedes to publicly criticize her lack of professionalism, dismissively telling the court “we don’t need to hear her arguments anymore since she’s withdrawn,” and assumes command of the case. Protesting the humiliating turn of events, the defender quickly rescinds her resignation and resumes her duties. While judicial officials settle the situation, the witness politely asks the Timorese interpreter in Tétun ‘Did I do something wrong? Why are all the malae yelling?’ The interpreter calms the witness, ‘Oh, don’t worry,

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it’s not about you. It’s just the crazy malae; this is how they do justice.’ At 3:30pm, a ten minute recess is taken. With all of the personal recriminations and contested objections in the back and forth among the triumvirate of parties to the court (prosecution, defense, judges), the witnesses and accused sit quite peripheral, appearing almost irrelevant. Court resumes at 3:50pm. Regarding the procedural issues from a previous case, the same international judge questions, “Are we bound by the Court of Appeal?” The Court of Appeal (Tribunal de Recurso) serves a dual function as both Timor’s Supreme Court and appellate court for the hybrid Special Panels for Serious Crimes. He answers himself that judges in a civil law system are independent and that no prior decisions are binding, adding that judges maintain their independence and individual legal interpretation. He further explains that UNTAET was not unconstitutional, rather that it was preconstitutional, “the panel is a branch of a domestic country; we are ‘Timorese’ judges, not an international court.” After temporarily resolving this matter, at last a witness speaks for the public record, albeit only for the ears of some international NGO workers and a foreign graduate student. After being sworn in, the 50 year old villager with slightly graying hair standing barefoot and attired in a traditional tais sarong begins to tell his story: ‘He killed my son. A lot of people, all dead…They killed people and burned houses. They took my daughter.’ The defense objects to the judge’s inquisitorial questions; the objection is overruled and a judge asks a follow-up question: “Who?” The witness answers, Pedro Mau and Sabino held her after Paulino came from behind and stabbed, claiming this is who feeds FRETILIN. They had guns and small knives; the military had guns and stabbed with knives. They held her until she died…My mother’s oldest sister was killed, one was cut with a machete on the face, one on her leg, another’s mouth was split, and another speared in the side. After they made the wounds, they ran far away so I couldn’t see them. My wife was stabbed in the leg by Pedro. I saw, and the person who did also knows. There was shooting and stabbing. The sun was still out, but it was a little dark when my child was killed. The fire from the Timorese grass house and shed was bright so I could see very clearly, as I hid in a small stream.

The Malaysian prosecutor proceeds with very logical questions, at a good pace with clear intonation, never leaving any stone unturned. Meanwhile, the German public defender interrupts to ask “What has he done?”, and is immediately scolded (not for the last time) by the

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interpreter for asking the question improperly, explaining the need to ask directly, “what did you do?” The interpreter later tells me how this public defender was once fired during the proceedings. The defendant asked instead to be represented by the ‘malae metan’ (black foreigner), a well-respected Mozambican attorney who was the only advocate with an international law background. The interpreter said that the defender offered the accused gifts to take her back, but was rebutted as the defendant felt like he had been ‘treated like a dog.’ With a dearth of interpreters and the defense severely under-funded, relations between the accused and his (all alleged perpetrators were men) representation appeared limited at best. After awhile, it seemed that the perpetrators preferred the cell block to the courtroom as they increasingly pleaded guilty, perhaps seeking leniency. Whatever the motivation to make such a plea, public shame was not likely to be the primary cause since Timorese essentially never attended. As the case continues, a witness affidavit attained by the defense from an earlier field interview which asserts that his daughter was raped by Sabino is introduced, but here in court, the witness explains that ‘those are not my words’ and that he did not see a rape. The exhausted public defender exclaims: “I need a break!” By chance, the case stops at 5:45pm since the prisoner may not be fed if he is returned to jail too late. The trial resumes the following day at 2:30pm and the wife of the previous witness now testifies; she does not know her own age, she is married, and she has five children: four are alive and one is dead. She cannot speak loudly due to a throat problem resulting from a slashing she suffered. Today’s proceedings are brief; the trial is suspended since the accused again needs to be returned to his cell, and restarts the next day. Following another edifying lecture by the Italian judge on the distinctions between civil law and common law, and now the addition of variances between adversarial and inquisitorial systems, the witnesses resume their testimonies. After long waiting her turn, the mother is called to the stand (literally, witnesses do not have a chair during their long testimonies and questions). Staring at the floor, she quietly explains ‘they took my daughter and killed her. With a small knife, they stabbed her through the back and it came through the breast.’ Wearing a dark pink blouse with a scarf around her neck, the woman unwraps her olivecolored tais sarong at the bench to show the judges her own bullet wound. Once again, the witness affirms that her daughter was not raped. It is not clear if the affidavits from the field were false, or whether now the parents do not want to subject their family name to further humiliation or wish to spare their daughter’s reputation and memory. This contest between oral and written testimonies was a recurring

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theme. The defense introduces a statement taken from the mother by a local NGO while offering counseling for her loss in which she identifies two of the three attackers by name, but for whatever reason does not mention Paulino. She vehemently protests that indeed he was there and explains that she would have told any interviewer the same. Even though this was not a deposition for the court, in the end, the judges sided with the document, assuming that it would be unlikely that the transcriber would fail to write down such a fact. Tellingly, the oral testimony of a first-hand observer was discounted in favor of a written document mediated by a third party. Of course, since so many witnesses are related to either the victim or accused, the veracity of any testimony deserves close scrutiny. Another witness, this time a former militia member, is called to testify as to Paulino’s whereabouts the day in question and whether or not he went to the village of Lourba. Born in 1965 in the village of Malilau and a former school teacher, this witness speaks loudly and boldly, directly eyeing the judges; he has known the accused since before the war. As the defense questions repeatedly travel into irrelevant territory, the Brazilian judge objects to the lack of focus. I subtly shake my head in disbelief, the Timorese judge smiles and nods at me knowingly while the witness takes the opportunity to glance around the courtroom. Eventually returning to the immediate facts of the case, the ex-combatant testifies that he faced a potentially fatal decision: to join the Merah Putih militia or to be killed: ‘they told us to tie a red and white bandana on our head and destroy things or we’d be killed.’ The public defender closely scrutinizes the witness, harshly interrogating his testimony regarding his experiences in the militia until the Brazilian judge finally intercedes: “You are frightening him! asking him like he is the accused!” Of course, the public defender was essentially doing her job to cross-examine the witness to aid her client, the accused. A tense debate among the judge, prosecution, and public defender erupts, temporarily stalling the proceedings. As questioning resumes, the defender asks the witness, “Did you have a regular work schedule as a militia member?” The witness sarcastically retorts: ‘we didn’t check time. When we get up, we go…I wanted to run away but I couldn’t because I have many children.’ For the international participants, the vagaries of a witness testimony often seem cloudy and sometimes inconsistent. Anyone with local knowledge of the environs and persons described (i.e. the local villagers) would instantly know ‘the road,’ ‘the field,’ ‘the liurai,’ etc. After a series of minutely specific questions seemingly immaterial regarding why villagers joined the Merah Putih militia, with great agitation and contempt the witness angrily yells: ‘why

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do you ask me questions like I am the accused, the criminal?! If you want to ask those types of questions, go ask those big people [Indonesian commanders] not me! How can you ask these questions, time, date? How can I know such things?’ The Timorese judge soberly explains to the court that remembering details like dates and times are difficult for illiterate Timorese. Looking extremely irritated, the witness answers disgustedly, ‘Yes I saw Paulino de Jesus and others. I saw the line. I didn’t count one, two, three, four.’ Demonstrating the collective exhaustion, the Italian judge instructs the defense to choose only the four best of their 13 remaining witnesses scheduled for the remainder of the trial and is met with a shout of “That’s impossible!” The judge compromises and allows four to six witnesses; the case is adjourned. One week later, the trial resumes. On this especially hot afternoon (though cool in the air-conditioned courtroom), the Brazilian judge continually interrupts the Malaysian prosecutor, demanding that the questions be asked faster since the witness does not feel well. Meanwhile, the court faces a lengthy stoppage as the current witness now requires three interpreters: Portuguese, Tétun, and a local language Mambae. After much searching in and around the Tribunal de Recurso’s premises to find a Mambae interpreter, most indigenous dialects and languages are outside the skill set of the very diligent interpreters, a clerk in the court is summoned into duty. Lacking any professional experience, he performs admirably (to the extent one can judge such things). Under renewed pressure to complete the docket of cases before the tribunal’s mandate concludes next year, today’s proceeding endures past 8:00pm before being adjourned until September. As patrons prepare to leave in the gloaming of the courtroom, the man accused of crimes against humanity (Paulino, who looks to be aged in his mid-thirties) comes around to greet each person in the courtroom and shakes our hands firmly with both of his and thanks us for attending. The goodwill is palpable and personal connections do certainly develop over the weeks and months of a case in such an intimate setting. Greetings and affirmations between prosecution, defense, judges, accused, and observers were common, with the familiar Portuguese salutary ‘bom dia’ to begin the day from all involved, or ‘boa tarde’ in the afternoon and ‘bon noite’ in the night. I receive my handshake and we share a respectful personal moment, while in the back of my mind I note the absurdity of this affectionate display with a soon to be convicted war criminal. In the halls outside, he embraces the witnesses who have testified, along with members of his own family, and they share some intimate words. Of course, just as one never recognizes exactly when

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morning shifts to afternoon or afternoon to night when pronouncing the Portuguese salutation, one never knows for sure when impunity becomes accountability or the thirst for vengeance is satisfied by some form of atonement. While I accept that impunity was averred, and perhaps even that justice was served, I could not help but think that whatever accountability that had occurred these days in the courtroom, it was in spite of this formal institution, not because of it. The case just described was the first acquittal of the Special Panels and the first judgment to be overturned by the Court of Appeal. On 26 January 2004, Paulino de Jesus was acquitted by the Special Panel for Serious Crimes, but was found guilty on an appeal (brought by the prosecution!) ten months later at the Appeals Court; notwithstanding the principle of ne bis in idem (double jeopardy). The resulting confusion damaged the credibility of the rule of law and tensions between the two benches remained. Paulino de Jesus was originally charged with a domestic crime for the murder of Lucinda Saldanha and the attempted murder of Juvita Saldanha in September 1999. The facts of the case as presented were that a militia and the TNI arrived around 6:00pm in the village of Lourba in Bobonaro district. Pedro Mau and Sabino attacked the family of Juvita Saldanha and Dinis Cardosa and abducted their twelve year old daughter Lucinda; Paulino allegedly killed her, while Pedro Mau shot Juvita in the leg. The prosecution later amended the charges to crimes against humanity in August 2003, with the threshold being that the crimes must have been part of a widespread and systematic attack. The court accepted the changes, though it did not publicly announce the modification until the final day of the trial. The case hinged on whether his presence in the village of Lourba could be sufficiently established. The court ultimately discounted the testimony of the parents of the victim as contradictory and relied on the mother’s statement to an advocacy group in which she failed to include Paulino’s name in describing the attack. The Special Panels acquitted Paulino de Jesus for the charges of crimes against humanity of murder and attempted murder in January 2004. The prosecution appealed on the grounds that the court had violated the rules in their interpretation of the parent’s testimonies, improper statements were included, and the defense witnesses were family members of the accused. The Court of Appeal did not address the arguments of the prosecution, but instead conducted their own ruling based on their own interpretation of the facts (a de novo review) and applied Portuguese law, issuing the decision in Portuguese without any translation, finding him guilty for the alleged crimes against humanity. The court watchdog Judicial System Monitoring Programme (JSMP)

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contended that the Court of Appeal failed to apply the correct law and to follow the appropriate protocols regarding their jurisdiction, though it did not challenge the merits of the judgment in finding de Jesus guilty and sentencing him to twelve years. Two weeks later, the defense appealed to the yet to be created Supreme Court of Justice; one month later on 17 December 2004, the Court of Appeal deemed itself the court of last resort and denied the appeal. The nuance of the choices made in 1975 or 1999 and the intersection between resistance and collaboration were quite apparent in this case, and may in part explain the difficulty of its resolution, switching from innocence to guilt. Formulating Transitional Justice: A Framework for Analysis

This analytical framework examines the interests, motivations, and power relationships across three levels of analysis: individual and family, state and society, and international. This framework also considers the structural forces that mediate definitions of success, such as the embedded values and cultural perspectives of various actors. Peace, justice, and reconciliation hold different meanings depending on the nation and society. Regardless of how they are conceptualized, these ideals are difficult to attain and require the proper institutions, political will, and usually the support of an impartial third-party. Figure 4.1 (next page) reflects the interests of each constituency on a scale from low to high priority based on rational actor calculations and commentary from cases around the world.2 Constituencies favoring legal accountability are quite narrow, facing powerful interests arrayed against such mechanisms. The preferences of domestic political leadership frequently differ from the human rights groups that vigorously promote institutions of transitional justice, while international actors create mandates and designate time periods to suit their own motivations. Though influenced by variant motivations, few strenuously object to what is essentially the default position of each constituency, reconciliation, whether due to a sincere belief in its rehabilitative goals among victims, many in the larger community, and international proponents, or a rather selfinterested preference to avoid a more harsh sanction by all category of perpetrator, or simply the inability of major states to muster the political will. Based upon their prioritization of justice, constituents are placed into four categories: advocates, opponents, deciders, and those in between. Where appropriate, it attempts to distinguish among such participants with greater nuance, differentiating elite/non-elite, urban/rural, male/female, Western-oriented/locally-oriented, while recognizing that an individual’s attitudes are idiosyncratic.

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Figure 4.1

Postconflict Priorities by Constituency

Level of Analysis

Revenge

Peace

Justice

Reconciliation

Victim

High

Low

High

Medium

Perpetrator

Low

High

Low

Medium

Community

Low

High

Medium

Medium

State

Low

High

Low

Medium

Major states

Low

High

Medium

Medium

Human Rights NGOs

Low

Low

High

Medium

Individual

International

Note: High, Medium, and Low reflects the priority each constituency places on a given value.

The Advocates

Victims, and the international NGOs that advocate for such victims, are the primary supporters of legal accountability for atrocities. Victims and their families have a unique claim to justice and deserve a special voice in designing institutions; therefore, a safe standard by which to measure justice are the wishes and attitudes of the injured parties themselves based on their own conceptions, to the extent that such views are shared by the spectrum of victims’ opinions. Individual victims and victims’ families (especially widows) tend to want accountability and retributive justice, either revenge or formal punishment. Of course, victims themselves may adopt tactics of revenge, rather than more measured responses of legal justice or transformative methods like forgiveness and reconciliation. On rare occasions, individuals opt to forgive offenders in acts of charity and reconciliation, or simply wish to forget the horrors as a coping mechanism, preferring to suppress these memories and avoid public displays of reflection or accountability. Traditional justice favors the family over the victim, who must traverse a delicate balance between social harmony and legal justice as the individual retributive desires for revenge or punishment may be subsumed by community norms or an emphasis on restorative justice. The inclusion of an advocate for the accused is an important aspect of formal justice that is usually absent in customary methods, though many Timorese did not

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understand why perpetrators deserved legal representation in the first place, since local community members knew of the crimes particular individuals had committed.3 At the international level, confident in the universality of their mission, foreign (usually Western) commentators from across the ideological spectrum pronounce how peoples and nations should best proceed toward justice and reconciliation. Human rights NGOs, international organizations like the United Nations, and supportive nation-states champion the rule of law and transitional justice; their exhortations of justice, reconciliation, and human rights may prevail as rhetoric as they strive for at least symbolic success. They are responsible for the proposed shift toward an international system that prioritizes ‘human security’ and the ‘responsibility to protect’ in place of acts of state and sovereign immunity. Perhaps the only steadfast supporter of transitional justice aside from the victims themselves, human rights advocates adopt an ethical and normative perspective that highlights accountability, often speaking for ‘the people’ in stressing the importance of justice and the dangers of impunity. Drawing international attention to those locations and groups that capture the imagination and affinity of humanitarian advocates or religious compatriots sometimes requires enormous efforts to raise public awareness. Activists and NGOs market their information and images and use rhetorical devices to elicit sympathy or express outrage and always to gain maximum exposure for their agenda. The standards of Amnesty International, Human Rights Watch, and others are high, and often anything short of an international tribunal is greeted with scathing criticism. Some international NGOs like the International Center for Transitional Justice (ICTJ) choose to mentor and advise countries that adopt such mechanisms, particularly truth and reconciliations commissions, as it did in East Timor. In coordination with such supporters, prominent Timorese NGOs such as Yayasan Hak, Fokupers, and La’o Hamutuk consistently called for an international tribunal, before and after the other mechanisms came and went. This domestic coalition, the National Alliance for an International Tribunal, composed of victims’ families and civil society groups dissatisfied with the Special Panels for Serious Crimes and the CAVR continues to call for international trials. With domestic and international policymakers narrowly tailoring justice and the local population concerned with socioeconomic survival and uncertain of these foreign models, Western human rights groups and their local affiliates are the major driving force favoring accountability.

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The Opponents

Not surprisingly, the most opposed to justice are the offenders themselves, who hope to escape accountability by whatever means possible. Perpetrators who ordered and carried out war crimes usually prefer peace as a self-interested impunity and wish to avoid justice in any form. Those at risk of prosecution call for a truth and reconciliation commission rather than capitulate to a war crimes tribunal, viewing TRCs as a less punitive alternative to justice or revenge, since trials could indict the crimes committed by the current regime. If threatened with accountability, they opt to bargain for amnesty through a reconciliation hearing. In the words of former Aitarak militia leader Eurico Guterres, “If we want to achieve reconciliation, we must halt justice.”4 Behind those who commit such acts are those who sponsor and direct the violence, in this case the civilian and military leadership of the outgoing sovereign, Indonesia. Rarely if ever, does a nation fervently scrutinize its own past and activities as the crimes of others and Indonesia held true to this regard. Even in the post-Suharto era, compliance has been grudging, although former President Wahid did call for an international tribunal after leaving office. In 2001, Indonesian Foreign Minister Alwi Shihab outlined the government’s criticisms of the plan for an international tribunal: • Indonesian sovereignty would be violated (since the crimes occurred on Indonesian territory), • national judicial mechanisms are functioning and capable of dispensing justice (unlike Yugoslavia and Rwanda), • Indonesian laws are the only laws applicable, • national remedies had yet to be exhausted (Indonesia has not signed the ICC treaty), • the degree and extent of the alleged violations of human rights do not justify the establishment of an international human rights tribunal, and • the process itself would only create obstacles to friendly relations between East Timor and Indonesia and reconciliation between their peoples.5 Indonesia would do all it could to be uncooperative, but from its own perspective, maintaining domestic order was still paramount. Likewise, justice and the rule of law in Indonesia are notoriously weak, and Indonesia’s fragile democracy could be toppled if trials upset the military establishment that remains a potent political force.6

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Perhaps more unexpectedly, subject states tend to dismiss the goals of a legal process and instead focus on the newfound obligation to govern, even when led by formerly victimized populations. In postconflict societies, heads of state seek stability and security and try to insulate themselves from potential threats and only reluctantly choose justice or reconciliation mechanisms that may inhibit these goals. Often new to authority and anxious to win coming elections, domestic policymakers face a complex quandary to balance competing interests and prevent challenges to national stability internally from an aggrieved population of disgruntled supporters disappointed with the outcome of their long struggle and former perpetrators and remnants of the ancien régime who may become spoilers and instigate renewed violence, and externally from threatening neighbors that could destabilize borders and great powers that control aid, trade, and military supplies. Of course, rarely is one side completely guilt free, and the subject state may have a significant interest in minimizing accountability and be profoundly reluctant to agree to trials that may indict the regime’s own atrocities. Therefore, states prefer to ignore the past, reflecting a cynical attempt to avoid ‘justice’ to be sure, but also recognition by domestic political leaders that they may wish to avoid such a penalty themselves. Though a lesser concern, the Timorese political leadership, victims to be sure, preferred to avoid the crimes of their own political party, FRETILIN, and military wing, FALINTIL, during the civil war, such as the mass graves of their UDT and APODETI political opponents found in Aileu and Same in early 1976. Nevertheless, some degree of support or acquiescence from the government is still invaluable. Concurrently, new regimes may seek to build good bilateral relations with neighboring countries and global powers, both of which may have participated in past crimes, that offer much needed development aid or control access to natural resources. Indeed, good relations with Indonesia are essential to East Timor’s future viability; Indonesia still holds the reins over militias in the border area with West Timor and will be the dominant economic actor for the small half-island nation. Thus, the level of the nation-state faces perhaps the most perilous task, forced to weigh the relative benefits of peace, justice, reconciliation, and development, along with all the other components of governance. National governments often prioritize internal and external security and development, knowing peaceful domestic and international relations are necessary to deliver economic growth, rebuild infrastructure, revitalize society, and provide an atmosphere for foreign investment. Timorese embrace their new sovereignty and government leaders assert their policy autonomy, ignoring Western calls for human

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rights and accountability, unless backed by the political will of global powers. Totally dependent on the donor community to fund transitional justice or rebuild the nation, new leaders make pragmatic choices to align with influential states regardless of past responsibilities or former allegiances. One official from the Ministry of Foreign Affairs illustrated the government’s need to be pragmatic in signing an agreement not to extradite U.S. soldiers to the International Criminal Court: “Human rights NGOs complain about human rights, even about the behavior of Japan in World War II. Local NGOs criticize the Article 98 agreement, but East Timor needs good relations and humanitarian interventions are important.”7 The gaze of the ‘international community’ falls only briefly and domestic interests hope to wait out this ephemeral glance. Timorese political leaders like Gusmão and Ramos Horta ultimately opposed the justice process, suggesting that peace, democracy, and most importantly independence, equaled victory.8 In fact, Gusmão, Taur Matan Ruak, and Bishop Basilio do Nascimento all advocated clemency to encourage militia leaders to return from Indonesia, though UNTAET opposed any form of amnesty. Ramos Horta went even farther in charging the UN Security Council with ‘extraordinary hypocrisy’ in its continuing to lecture about justice, stating: “If I were to be naïve enough…to say please support the resolution in the Security Council to establish an international tribunal, well I would call their bluff; they would not support it.”9 Those In-Between

Since most negotiations over these choices are conducted between foreign states or international organizations and state authorities and perhaps elite civil society, the interests and motivations of ordinary individuals are regularly overlooked. At the community level, average members of society who neither directly suffered nor benefited from the worst effects of the conflict, or were born after hostilities ceased, may support the notion of transitional justice, but simply be distracted by other priorities. The elderly often consider the long cycle of life and with the benefits of wisdom are less tempted to retaliate, while farmers must prepare for the planting season and women must care for the children. Community members enjoy the newfound stability and seek a minimum level of economic security; thus, a hierarchy of human needs such as adequate food, shelter, clean water, good health, and employment rank higher in importance than accountability, justice, or reconciliation.10 Survey research on East Timor conducted by the Asia

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Foundation supports these observations, finding that the main national concerns were the economy and security, in other words “survival issues” such as jobs, food, and basic infrastructure.11 The economy was the top concern of respondents around the country, nearly double those who were concerned about violence; justice and accountability did not make the list. The personal level is marginalized in collectivist cultures like East Timor where cultural norms emphasize village harmony and social order, reflecting the pre-eminence of family and community as the more valued standard. In fact, families detrimentally affected by conflict still prefer to resolve disputes privately through long-established practices of negotiation and face-saving outcomes, perhaps with the guidance of village leaders, even if such customs forego individual accountability. The Deciders

Tribunals and truth commissions are symbolic representations that human rights matter and massive atrocities will not be ignored. In the words of Secretary-General Annan, “despite all the difficulties of putting [norms favoring intervention to protect civilians] into practice, it does show that humankind today is less willing than in the past to tolerate suffering in its midst, and more willing to do something about it.”12 Transitional justice is almost always dependent on the active support and political will of powerful nation-states to fund these projects and encourage and pressure reluctant participants. Third parties are essential to this process since they have the power to apprehend and extradite suspects, offer evidence and documentation, and provide financial assistance. Yet accountability is contested at the international level, where geopolitical calculations and economic interests are everpresent. Determining when and where to deploy humanitarian interventions, peace operations, or mechanisms of transitional justice is greatly impacted by third party interests. Looking through a critical lens, nationstates co-opt humanitarian concepts as rhetorical devices to justify contemporary foreign policy, as liberal norms become instruments of power politics whereby the strongest international actors refuse to comply with enforcement mechanisms and flaunt international conventions. Stephen Stedman argued that “in peace operations, the result is often a stated rhetorical commitment to democracy, human rights, justice, and development, with a bottom-line commitment to what the most powerful, interested states desire.”13 On the ground, transitional justice represents a continuation of great power

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manipulation and is representative of the dominant/subordinate Global North-Global South relationship whereby outside actors use rhetorical and financial support to influence domestic decision-makers. Despite the efforts of the humanitarian community, transitional justice is usually resigned to peripheral locales less affected by power politics and in less currently strategic contexts. Since global and regional powers often are responsible for much of the carnage through their patronage, major states wish to deny involvement and possible culpability for past crimes as the legacy of great power involvement restricted the desire of key permanent UN Security Council memberstates to vigorously promote accountability in Cold War hot spots. For instance, China and the United States were initially reluctant to create mechanisms of accountability for Cambodia, fearing to expose their historical roles. Rwanda and Yugoslavia (and later Sierra Leone) were rather more neutral and peripheral places where Western powers were less culpable for their historic intrusions than for their modern reluctance to intervene in humanitarian catastrophes, ethnic cleansing, and genocide; in fact, the ICTR was primarily a response to the failure to deploy a humanitarian intervention to stop the nascent genocide.14 The national interests of influential states fluctuate over time, both assisting and hindering such processes. Since the end of the Cold War, the foreign policies of prominent nations have appeared rather schizophrenic, from active support of transitional justice to manipulation of such institutions to the prevention or even undermining of accountability. New global events and systemic shifts change allegiances and priorities, while small countries find themselves once again mere pawns. The United States has generally supported ad hoc tribunals to deflect the need for a permanent international criminal court and as a method to democratize former socialist nations in particular, while tolerating the hybrid process in East Timor, Sierra Leone, and (less enthusiastically) Cambodia. The creation of transitional justice in East Timor was a reluctant enterprise, but the audacity of Indonesia’s brutality (even the United Nations was not spared, its property and personnel occasionally attacked) and the growing priority put on international intervention after the Rwandan humiliation rewarded Timor with outside support. Out of favor for a time during the 1997 Asian Financial Crisis, weapons sales and lethal defense articles from the United States were halted until Indonesia extradited those indicted by the Serious Crimes Unit, conducted a public audit of the Indonesian military’s funds, and prosecuted TNI human rights violators and punished those found guilty.15 The United States nominally supported transitional justice in

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East Timor, though it was generally ambivalent about the process due to its only marginal strategic interests there. To the contrary, Indonesia is the most important country in Southeast Asia for a variety of reasons. Indonesia is an important supplier of natural gas and petroleum to the region as well as for the United States. Other countries like Japan, and increasingly China, import energy resources through Indonesian waters, and the United States remains interested in continued sea-lane access in the deep waters between Australia and Indonesia (including the Timor Gap) as international trade routes and for its nuclear submarines to pass.16 In the 2000s, combating terrorism again made Indonesia, the world’s largest predominantly Muslim nation and partner in the ‘war on terror,’ an essential ally of the West. Several large-scale bombings in a Kuta, Bali disco in October 2002, at a Jakarta hotel in August 2003, outside the Australian Embassy in Jakarta in September 2004, and again at resorts in Jimbaran and Kuta, Bali in October 2005 demonstrated the real and growing threats faced by Indonesia from religious organizations like Jemaah Islamiyah, which promotes a greater theological role in state affairs, if not the formation of a caliphate, and has links to AlQaeda. Jemaah Islamiyah also adopted terror tactics such as inciting religious violence in the Moluccas by attacking Christian churches and bombing locations patronized by Westerners to gain maximum exposure and disrupt society, sometimes in an act of suicide. In this broad context, Australia volunteered to be the U.S. ‘deputy’ in the region, and by 2004, U.S. President George W. Bush considered Australian Prime Minister John Howard his ‘sheriff’ in the South Pacific for nations such as Timor, the Solomon Islands, Vanuatu, and Papua New Guinea, alarming several regional states but illustrating the two nations’ harmony of outlook toward global threats and shared commitment to the 2003 invasion and occupation of Iraq. In fact, the outright hostility to international law by the Bush administration undermined American commitment to accountability, when the United States sought to exempt American peacekeepers from possible ICC jurisdiction and withdrew several unarmed military observers in post-independence UNMISET leading East Timor to reciprocate and sign the so-called Article 98 arrangements. Following the December 2004 tsunami in the Indian Ocean that ravaged Indonesia and particularly devastated Aceh, the United States resumed full military cooperation under the cloak of humanitarian concerns and allowed Indonesia to purchase spare parts for Hercules aircraft and resumed IMET.17 The U.S. Secretary of State Condoleeza Rice still threatened to withhold one quarter of the $8 million in U.S.

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military aid and encouraged the prosecution of General Wiranto, total reform of Indonesia’s military structure, and the reining in of private business arrangements such as illegal logging, fishing, sand mining, and weapons trading. By 2007, Indonesia had largely ignored U.S. threats, which appeared to be only for show since no Indonesians were ever extradited, and the UN Security Council’s ongoing calls for justice rang hollow. Amid all of the swirling waters surrounding the idea of accountability among these multi-layered constituencies, the options for transitional justice would be equally multi-faceted. Several attempts were formulated and the ultimate decision to create any sort of mechanism was a mark of success, though cultural factors like the imposition of Western notions and mechanisms of justice and the privileging of certain languages would impact acceptance of any model. The Development of Transitional Justice in East Timor

Figure 4.2 (see following page) illustrates the range of possible transitional justice mechanisms in East Timor, from the wholly domestic (traditional mediation and domestic courts) to mixed domestic/ international options (TRC or hybrid tribunal) to totally external institutions (an international tribunal or a foreign court). All but the last two have been attempted in some form, though the mandate for each mechanism was usually very narrow. The following section categorizes these options by their form, traditional mediation, court, or truth and reconciliation commission, and briefly describes the practice of each. Traditional Mediation

Customary justice is practiced throughout traditional societies around the world; in the Indonesian archipelago it is referred to as adat (in Timor, adat may be called lisan). Christine Drake explains adat, rulers based on traditional legal custom, as kinship or aristocratic status over written law, communal over individual interests, ties between people and soil, magical/religious thought, and a family-oriented ethos (reconciliation and mutual consideration).18 Sally Merry describes adat as tradition, custom, law, morality, political system, legal system, even etiquette and ritual, emphasizing that it is not so much a custom as an outlook that conceives of justice as spiritual harmony.19 In general, three leaders in Timor possess the authority to determine proper outcomes for transgressions, including accountability. Liurai hold political authority by their birth right, dato possess ritual authority through one’s ability to

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Figure 4.2

Possible Transitional Justice Mechanisms in East Timor

Mechanism

Form

Practiced? Mandate

Traditional Mediation

Nahe Biti Boot

Yes

Daily Village Life

District Court (East Timor)

Yes

‘Ordinary Crimes’

Ad Hoc Human Rights Court (Indonesia)

Yes

Specific Human Rights Violations

Domestic Court

Commission for Reception, Truth, & Yes Reconciliation (CAVR)

‘Lesser Crimes’

Commission for Truth and Friendship (CTF)

Yes

Gross Human Rights Violations

Hybrid Tribunal

Special Panels for Serious Crimes

Yes

‘Serious Crimes’

International Tribunal

None

No

N/A

Foreign Courts

None

No

N/A

Truth & Reconciliation Commission

communicate with the spiritual world, and lia nain maintain judicial authority through knowledge of the oral tradition of ancestral customs and how to interpret the laws and thus serve as the ‘owner of words’ and determine appropriate compensation for wrongs committed.20 The cosmic order that supports traditional law or morals derives from the essence of the common ancestor and is known as Bandu. Decisions of a liurai or a lia nain are sealed by a juramento, a blood oath, usually by drinking a mixture of the blood of a sacrificed animal (hemu ran) along with palm wine (tua), allowing peace and reconciliation to be restored. Those who break the order of acceptable behavior governed by Bandu risk a spiritual or material retribution, perhaps suffering from a malisan, or curse. Outbreaks of violence, including the taking of heads, were not uncommon in the funu (ritualized warfare) and punishment for great transgressions could certainly mean death, but the goal of the justice process was primarily to re-establish village harmony and social order, or allow the karma-like recompense of having harmed or not preserved

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the lulik (sacred power). Lia Nain and Catholic priests, or other church hierarchy, remain influential arbiters of justice throughout society. Traditional mediation in Timor is based on nahe biti boot, the unrolling of a large mat for the bringing together of various members of the community to resolve a dispute.21 Dionísio Babo-Soares explains how the biti (mat) symbolizes consensus by weaving together different leaves, understood as conflicting views, to find a common settlement.22 The process is presided over by village elders or chiefs and may include traditional customs such as chanting, betel nut chewing (mama buah malus, provided at the beginning and chewed at the end), smoking, and drinking. A chicken or pig is usually slaughtered and its intestines examined for purity to determine whether the process will be successful. If the pig’s intestine is distended or dark, or if a chicken’s feet cross while being strangled, the process still faces obstacles to reconciliation. Along with a blessing, coconut milk and blood is sprinkled over participants to confer sacredness on the event and establish a ‘cooling process.’ Negotiations between the families of victims and offenders are part of this process, and most ordinary and local disputes are still resolved through these mediations rather than the formal legal system, or any other mechanism. Outcomes are usually settled by bartering over a cow or pig, sometimes with a simple apology and an oath to never repeat such acts, other times through community service (rebuilding gutters or planting trees for instance), or occasionally paying fines. The truth and reconciliation commission discouraged the independent payment of reparations when it adopted the nahe biti process as part of its reconciliation forum. At the end of the ritual, the following phrase is offered: “saida mak ladiak haluha tiha ka monu hela iha ne’e, labele louri ba liur. Maibe buat nebe mak diak lori ba hodi fo hatene ba, no hanourin, oan sira” (“what is bad should be forgotten, and should not be taken home with you. However, you may take the good things to tell and teach the children”).23 Finally, a juramento or oath of loyalty is customarily administered at the lineage’s uma lulik to re-establish harmony between the secular world and the cosmos. Babo-Soares identifies the ultimate goal of nahe biti as a medium to reconcile a past conflict and gain peace (dame) and stability (hakmatek).24 Traditional justice can be discriminating, strongly affected by family connections to liurai or others; thus family negotiations do not often accommodate the individual rights of victims.

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Courts

Many national courts around the world are susceptible to political manipulation and bribes and the general public often demonstrates little faith in the justice system. Neither the Portuguese colonial courts nor Indonesia’s state courts bequeathed a legacy of impartiality or accessibility for ordinary Timorese and their quick withdrawals left a vacancy of qualified personnel to step into the breach. Historically, Portuguese courts were only used as an absolute last resort when traditional mediation failed, while the more recent Indonesian courts were not seen as impartial or equitable, but instead based on personal relationships. Thus, East Timor did not have a legal system capable of prosecuting any crimes, let alone complex crimes against humanity charges involving persons safely outside its jurisdiction. The Dili District Court was not able to begin any sort of proceedings until 11 May 2000 and corrections facilities were not available until the end of the year. In the end, any attempt at transitional justice would have to look elsewhere, as domestic courts were simply not viable. Nor were foreign courts applying universal jurisdiction readily available, particularly in East and Southeast Asia where state sovereignty remains sacrosanct. In September 1999, the UN Commission on Human Rights called on Secretary-General Annan to establish an international commission of inquiry in cooperation with the Indonesian National Commission on Human Rights to gather and compile information on possible human rights violations and acts which may constitute breaches of international humanitarian law committed in East Timor since January 1999.25 The Commission saw a pattern of serious violations of fundamental human rights and humanitarian law, and urged the secretary-general to establish an independent and international body to conduct further investigations; identify the persons responsible for those violations (including those with command responsibilities); ensure reparations for the violations from those responsible; prosecute those guilty of serious human rights violations; and consider the issues of truth and reconciliation.26 The UN Commission on Human Rights also suggested that the United Nations establish an international human rights tribunal consisting of judges appointed by the United Nations, preferably with the participation of members from East Timor and Indonesia. The tribunal would sit in Indonesia, East Timor, and any other relevant territory to receive the complaints and to try and sentence those accused by the independent investigation body of serious violations of fundamental human rights and international humanitarian law which took place in East Timor since

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January 1999, regardless of the nationality of the individual or where that person was when the violations were committed. Instead of an ad hoc international tribunal, on 6 March 2000, UNTAET Regulation 2000/11 on the organization of courts in East Timor established a hybrid court, the Serious Crimes Unit, exclusively for genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture committed between 1 January and 25 October 1999 under the authority of UNTAET. According to UNTAET Regulation 2000/15, judicial panels were composed of two international judges and one Timorese judge, with universal jurisdiction if (a) the serious criminal offense was committed within the territory of East Timor, (b) the serious criminal offense was committed by an East Timorese citizen, or (c) the victim of the serious criminal offense was an East Timorese citizen.27 Formally, judges answered to East Timor’s Supreme Court of Justice of the Court of Appeals, which comprised two Timorese judges and one international judge. The Public Prosecution Service was composed of an Office of the General Prosecutor (OGP) based in Dili with two departments, one for ordinary crimes and the other for serious crimes, each led by a deputy general prosecutor. With a UN staff, the deputy general prosecutor for serious crimes was given exclusive authority to investigate and prosecute serious crimes.28 Public defenders were officially under the authority of East Timor’s Ministry of Justice. The hybrid court prosecuted cases of individual incidents of violence and other notorious atrocities that were grouped together under a single indictment. In a very limited fashion, a small group of Australian military police and UN civilian police (CIVPOL) began investigations in December 1999, which were soon expanded by the UN Human Rights Unit. In 2000, among the nearly 1,400 murders that had been identified, the Serious Crimes Unit selected ten priority cases to pursue more vigorously.29 Concomitantly, in respecting the sovereignty of Indonesia and the ability of its courts to be conducted effectively and impartially, the United Nations pressured Jakarta to conduct domestic trials to hold top Indonesian leaders accountable for the atrocities in East Timor associated with the 1999 referendum, while ignoring the 1975 invasion. The international community warned that if Indonesia failed to demonstrate that justice was adequate, an international tribunal might be created in response. Indonesian Law No. 26/2000 of 23 November 2000 established an ad hoc Human Rights Court as a special chamber within the existing legal system and created its own Komisi Penyelidik Pelanggaran Hak Asasi Manusia (National Commission of Inquiry on Human Rights Violations in East Timor, KPP-HAM), which identified

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alleged perpetrators and concluded that the Indonesian government was implicated in funding, arming, and supporting militias in East Timor and that the TNI had carried out operations with these militias in its January 2001 final report.30 The Indonesian commission of inquiry named 33 individual perpetrators, including several high-ranking military officials, and more than 100 others were recommended for review. However, Indonesia’s court investigated only four cases in three specific districts of East Timor, Liquiça, Dili, and Kovalima from April to September 1999: the attacks on the churches in Liquiça and Suai and the homes of Manuel Carrascalão and Bishop Belo. Indonesia incessantly stalled in its efforts to formulate domestic trials for war criminals, failing to select its judges to the special human rights court until 14 January 2002. Ultimately, each judicial panel included three ad hoc and two career judges, with a career judge presiding over the courtroom. Indonesia ignored almost half of those named by the investigative commission, including the general in charge, Wiranto. On 13 March 2002, Indonesia charged 18 military and police officers and civilian officials, including the most senior general with direct command over East Timor, Major General Adam Damiri, the police commander for the province Brigadier General Timbul Silaen, and the Governor Abilio Osorio Soares. Of the 13 cases in the KPP HAM report, only four formed the basis of prosecutions by the attorney general’s office. At the conclusion of the Indonesian trials in August 2003, both the United Nations and United States publicly stated that the outcome of the trials was unacceptable. Secretary-General Annan and six prominent international NGOs, including Amnesty International, Human Rights Watch, the Coalition for International Justice, and the Open Society Justice Initiative, suggested a UN Commission of Experts to evaluate justice efforts following the failure of the Indonesia Ad Hoc Human Rights court. Annan appointed a three member UN Commission of Experts (Justice Prafullachandra Bhagwati of India, Professor Yozo Yokota of Japan, and Director of the Fiji Human Rights Commission Shaista Shameem) in February 2005, and they conducted an investigation in Indonesia and East Timor to determine the merits of holding an international tribunal. On 26 May 2005, the Commission recommended an ad hoc international tribunal if Indonesia did not take action to secure accountability within six months, finding that the Jakarta trials were ‘manifestly inadequate.’ In the end, the UN bluff was called and the secretary-general’s follow-up report appealed for capacity building of each domestic court, renewed serious crimes investigations in East Timor (though not prosecutions), and the establishment of a

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solidarity fund to promote justice and community restoration programs.31 Truth and Reconciliation Commissions (TRCs)

A truth and reconciliation commission was first discussed in June 2000, and from September 2000 to January 2001, a wide variety of civil society groups participated in a consultation period in each district. As a result, the East Timor National Council formed a truth and reconciliation commission on 20 June 2001 (formally established by UNTAET Regulation 2001/10 on 13 July 2001) charged with three duties: to establish the facts of events in the conflict between 25 April 1974 and 25 October 1999, to help achieve community reconciliation and reintegration of people who committed minor acts of violence, and to report on how to prevent future human rights violations. Twenty-eight regional commissioners, seven for each regional office, conducted the hearings, and its seven national commissioners elected human rights lawyer Aniceto Longuinhos Guterres Lopes to be chair and Catholic priest Father Jovito Rêgo de Jesus Aráujò to be vice-chair of the commission (see Figure 4.3).32 With its four regional offices (Baucau, Manatuto, Los Palos, and Viequeque), the commission worked simultaneously in all 13 districts, while spending three months at a time in one of the 65 sub-districts. Figure 4.3

CAVR Commissioners at a Public Hearing

Left: (L-R) commissioners Jacinto Alves, José Estêvão Soares, Rev. Agustinho de Vasconselos, Vice-Chairperson Father Jovito Aráujò, Chairperson Aniceto Guterres Lopes, Isabel Guterres; Maria José da Costa testifies; Commissioner Olandina Caeiro is not pictured. Right: Soares (left) and de Vasconselos (right) confer. Photo: by the author, CAVR Public Hearing on Forced Deportations, Ex-Comarca, Dili, East Timor.

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Thus, the CAVR had two distinct responsibilities: to discover the truth and to promote reconciliation. The truth-seeking component incorporated the following themes: forced displacement and famine, massacres, killings and disappearance, political imprisonment and torture, women and conflict, children and conflict, party conflict, TNI (the Indonesian military), FRETILIN/FALINTIL (the resistance forces), and international actors. Although the CAVR could not offer amnesty, it sought to provide a broad explanation of the causes and consequences of political violence and related topics from 1974-1999. The reconciliation process had three objectives: take statements in a peacebuilding process, achieve reconciliation, and make recommendations to government. The reconciliation aspect promoted community reconciliation through smallscale village meetings where victim and perpetrator met with traditional leaders and CAVR facilitators to restore relations and help to heal society. Meanwhile, Xanana Gusmão and Indonesian President Susilo Bambang Yudhoyono struck an agreement in Bali on 14 December 2004 to create a joint East Timor-Indonesia Commission for Truth and Friendship (CTF) to look at gross human rights violations in 1999. Following an agreement on the official terms of reference on 9 March 2005 and an 9 April 2005 visit by Indonesian President Yudhoyono to Santa Cruz cemetery in Dili as a gesture of reconciliation, similar to President Wahid’s 2000 visit in which he apologized and President Sukarnoputri’s attendance at Timor’s 2002 independence ceremony, the CTF officially opened in Denpasar, Bali in August 2005, though the first of five hearings did not occur until February 2007. The CTF had a oneyear mandate, which was renewed for a second year, to review all materials documented by the aforementioned KPP-HAM, the Indonesian ad hoc court, the Special Panels hybrid court, and the CAVR, and consisted of five members each from East Timor (two are former CAVR commissioners, Alves and Guterres Lopes) and Indonesia.33 The objective of the commission was “to establish the conclusive truth in regard to the events prior to and immediately after the popular consultation in 1999, with a view to further promoting reconciliation and friendship, and ensuring the non-recurrence of similar events.”34 Though the commission was based in Bali, hearings also took place in Jakarta and Dili over a six month period. Judging Transitional Justice

Having attempted to describe the interests of the various stakeholders and the range of possible institutions to match such preferences, this

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section applies a standard set of criteria to evaluate transitional justice as practiced in East Timor. This chapter ultimately seeks to answer three questions: was the accountability process legitimate, effective, and relevant? In developing answers, it evaluates the official mandate of each institution, but also defines a broader set of indicators that takes account of competing values (peace, revenge, justice, or reconciliation), differing conceptions of these terms, and the larger political realities that shape the interests of various constituents from local to international. Despite the wide array of choices among transitional justice mechanisms, standard models have their limitations. The impact of each approach was very dependent on several factors that affected public perceptions and influenced popular attitudes, such as whether a local language was used, the degree of formality in the process, the role of public dialogue, the training of practitioners (mediators, jurists, etc.), and the availability of resources. Below, a set of general standards are applied to consider the following: • Did the process gain appropriate input from the affected community and take account of their preferences in defining mandates? • Was the time period and subject matter jurisdiction broad enough to include all responsible parties? • Were resources and budgets sufficient to effectively conduct the process? • Were the trials or hearings held in a location accessible to the public and/or with effective media coverage? • Did the primary culprits elude arrest, receive some form of de facto amnesty, or ignore the process entirely? Did they submit to a reconciliation process, testify to a public commission truthfully, or were otherwise apprehended, tried, and punished? Were cases or hearings prosecuted in a timely manner? • Was the process relevant and understandable to its intended audience, the affected population, and did the process gain wide public support? • Did the process build local capacity to further these goals in the future? Figure 4.4 on the following page distinguishes the chief differences between the two major mechanisms of transitional justice employed in East Timor.

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Figure 4.4

In Comparison: The CAVR and SPSC

Characteristics

Truth Commission (CAVR)

Hybrid Tribunal (SPSC)

Cultural Premise

Indigenous Mediation

Western Legal System

Time Period

1974-1999

1999

Jurisdiction

Lesser Crimes

Serious Crimes

Funding

$5 million

$14 million

Location

All districts (Timor)

Capital city (Dili)

Individuals Processed

1,404

87

Language Employed

Tétun

English

Government Support

Yes

No

Ownership of the Process: Defining Justice and Public Consultation

In setting out to achieve the universal ideals of justice and reconciliation, the local population and government should play a role in the design and implementation of such values and take account of the trade-offs with other goals espoused by a society. Thus, two factors to consider here are whether domestic actors sufficiently participated in the planning of the process and international advisers incorporated the meaning of justice as understood in Timor. Justice is a localized concept that will persist long after foreigners have departed. By necessity, the local population has a foresighted view of the future challenges, while international advisers tend to have more limited aims. Building on the work of Tanja Hohe, recent anthropological work and survey research on Timorese culture and attitudes has begun to help elucidate local conceptions of justice. In Tétun, dame means peace and hakmatek approximates stability, while simu malu is a sort of mutual acceptance or reconciliation, which the majority defined as apology and forgiveness, secondarily as peaceful coexistence. In prioritizing and defining terms, 20-25 percent did not know the term for justice (justiça), whereas all respondents knew the term for reconciliation. Of those familiar with justice, the first definition provided was equality and fairness, followed by law enforcement. The anthropologist Elizabeth Traube underscored the first definition of

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justice in her ethnographic research in Mambae-speaking areas, where “those who pursued their own interests and prospered under the occupation should be made to pay, while those who suffered and sacrificed for independence should be recompensed.”35 The locally-sanctioned process of nahe biti boot sought a degree of accountability designed to achieve a final status of peace or mutual acceptance. Punitive obligations could be employed to equitably right a wrong through the transfer of labor or property, but the procedure itself was less important than the outcome. Surveys of public attitudes confirm a preference for local forms of justice and skepticism toward unfamiliar imposed institutions. Ninety percent of respondents preferred community leaders to take primary responsibility for law and order according to an Asia Foundation investigation in 2004.36 Specifically, majorities believed that traditional justice was fair and respected human rights, including women’s rights. More than 80 percent felt that community leaders, and not the police, were responsible for law and order, and 94 percent expressed confidence in the adat process. Majorities supported women being allowed to own land and advocate for themselves in traditional mediation, preferring that domestic violence be resolved through adat; though two-thirds felt rape cases should go to the formal courts. Overall, three-fourths favored traditional to formal justice, seeing the chefe do suco, liurai, and adat as interrelated processes to provide social harmony and justice, whereas the police and legal systems were seen as mutually distinct. Comparatively, the formal courts were seen as less fair, less accessible, more complex, and a greater financial risk; many even questioned whether the authorities upheld the morals of the laws. Further, most preferred to ‘save face’ and ‘avoid embarrassment’ at a formal trial, and would rather have the courts be conducted in Tétun or Indonesian, the use of Portuguese caused uncertainty. Another survey by the International Center for Transitional Justice found widespread support for holding perpetrators accountable including through prosecution.37 Many expressed support for rehabilitative aspects of justice, one village head in Maliana said “as compensation, the perpetrator must hold a feast with the victims’ families and the public so he or she can be accepted back into the community.”38 A male villager from Viqueque offered similar sentiments in support of the traditional mediation process: “There should be ‘naha biti boot’—we should sit and get together to discuss the problem based on our tradition. This is the foundation for reconciliation in this country. Everyone should admit his or her past wrongdoing and be willing to introspect and clean themselves up.”39 Overall, according

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to the ICTJ study, widespread support was expressed for a continued, and expanded, role for traditional leaders and customary law, and a strong sentiment among many highlighted the need to coexist.40 Interestingly, considerable criticism was leveled toward NGOs that took data but did not appear to conduct follow-up or provide further communications or feedback. This conceptual gap between the foundation of each institution, i.e. the much greater comprehension of the truth and reconciliation process than the tribunal, would affect public attitudes throughout the transitional justice process. Formal courts of adjudication and codified law have developed over time in the Western context and generally match shared principles with expectations of procedures and results. Most countries now have a constitution and judiciary in place and are capable of processing a large number of cases; thus, the use of the state judicial system may allow the local population to feel an ownership of the process and can help to solidify the rule of law in a domestic setting. In many developing countries, these official legal systems have supplanted traditional ritualized village-level practices and personal decision-making that is understood and accepted by the community as the dominant approach to achieve justice, punish offenses, and deter future violations. Yet enduring traditional cultural practices to achieve these goals are often more meaningful than the administrative decisions of the state. These two approaches of formal legal justice and informal customary justice each have their merits when applied in the appropriate context, yet an interstitial zone often arises during a nation-building process that reflects the negative aspects of each model. Many post-colonial judicial systems lack the independence and resources to try cases effectively, often resulting in a highly partisan and politicized judiciary, rife with corruption and unobservant of minimum standards of fairness, where the abuse and mistreatment of the accused and convicted remains problematic. Personal relationships and familial ties that cement social relations in the community are refashioned as arbitrary decisions by impersonal bureaucrats in the state courts. Few of the countries where peacebuilding and transitional justice mechanisms take place are participatory democracies that take a profound account of public opinion or have influential free media sources, thus, legal justice does not necessarily equate to established social norms. International opposition to local practices is predicated upon a presumption of deficient human rights standards and was exhibited in a UN human rights report criticizing three challenges to transitional justice (emphasis mine), “lack of human resources, lack of effective case management and the diversion of cases from the formal

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justice system to local dispute-resolution methods.”41 A wholly transplanted system that arbitrarily ignores traditional institutions and social norms tends to cause discontent and weaken implementation of the entire project. Each process was in a sense formed in a top down manner, guided by international actors, and received only limited input from the local community. In planning transitional justice, gaining public input and support is vital for both short-term and long-term success, yet dialogue rarely extends beyond government leaders and urban civil society elites at best; rural communities and victims are often left out. International practitioners may be unaware of local institutions, while national leaders often desire to be treated as modern on the world stage and suppress or dismiss indigenous customs as backward. The Timorese government was generally unsupportive of customary law; its newly constituted domestic courts purposefully ignored traditional cultural practices and could nullify traditional justice. Absent much input from the majority rural population of Timor in designing responses to the violence, the architects of transitional justice spent little time to become familiar with indigenous definitions or ideas of such goals. In fact, the creation of the entire transitional justice plan was not an integrated process based on any prior planning; it was a series of ad hoc responses to a crisis situation. The United Nations commissioned two reports from Western scholars (diplomat James Dunn and academic Geoffrey Robinson) to document the 1999 human rights violations, and both recommended the establishment of an international tribunal.42 Certainly international and local human rights advocacy organizations and victims groups called for an international tribunal along the lines of Yugoslavia and Rwanda and still seek out the increasingly unlikely option. Yet conceptions of justice in East Timor certainly differ from those in Rwanda and Yugoslavia, where intense ethnic antagonisms and religious differences spurred a preference for retribution. Those gaps are not as stark and are sometimes non-existent in East Timor, which is built on a small community of close kinship ties and family connections, often cemented through barlaque, or dowry.43 The decision to overlook these local actors and press for the establishment of parallel prosecutions in each locale was a useful compromise by the UN Security Council and other states, including interested Asian nations, which pressured Indonesia to conduct its own trials and instead formulated a hybrid model for East Timor since it lacked the capacity to operate purely domestic trials. Few in the Timorese community favored this approach, as they were skeptical of Indonesia’s impartiality, unsure of the hybrid model,

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and, for the vast majority, unfamiliar with the adversarial courtroom process which did not comport with the customs of society. Local NGOs and judicial personnel reported that no real consultation occurred prior to the establishment of the hybrid Special Panels.44 Certainly on the Indonesian side, the domestic populace was largely unaware or dismissive of the atrocities and completely marginalized from providing input; indeed it was a reluctant act of state to conduct investigations or trials at all. With the decision made, the beginning of Indonesia’s trial process began with NGO participation, as the KPP-HAM independent Commission of Inquiry included five members from Komnas HAM, and four others were appointed from civil society. Yet the outright mockery of the rule of law in the Jakarta trials undermined the UN plan and antagonized the Timorese public. Distinctions on conceptions of justice are most apparent in relation to the overly formulaic procedural quotient for justice in the Western legal sense. Although the prioritization of goals between peace, revenge, justice, and reconciliation differed by constituency, the unfamiliarity of the formal court system was perhaps its greatest weakness. Formed in 2000 after the UN mission was underway and with the assistance of the ICTJ, the CAVR sought more local input in formulating its own hybrid, blending the indigenous nahe biti mediation process with global standards developed from other TRCs around the world. For the rural majority, the well-understood informal reconciliation commission, which overlaid the traditional mediation procedure, matched process and outcome, particularly for the nature of the crimes committed. With the success of the CAVR in mind, negotiations between East Timor and Indonesia transformed an idea for an international truth and reconciliation panel with UN support to a bilateral commission with almost no international backing. The CTF was the last process and the least consultative; victims, human rights groups, the broader community, and even the United Nations were ignored in the design of the commission, and neither nation’s parliament ratified the terms of reference. Public reaction in Timor toward the CTF was largely negative, particularly after pictures of Gusmão embracing General Wiranto were released, and human rights groups in both Indonesia and East Timor along with the Catholic Church objected to the commission for perpetuating impunity. With the CTF goal of a ‘non-recurrence of events’ as a clear definition of a negative peace, along with its straightforward goal of reconciliation, both governments once again demonstrated their disinterest in justice.

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Setting the Boundaries: Time Periods and Subject Matter Jurisdiction

In wrestling with the mandate of tribunals, subject matter and time period jurisdiction become contentious issues that often delay the implementation of mechanisms. Limiting time periods to a given era has a practical purpose to highlight the juncture when the worst atrocities occurred, as well as the need to set parameters for the scope of investigation. However, limiting the temporal range has other motivations as well: to include or exclude an influential actor (often a neighboring power or major state), to avoid culpability by the current government for possible responsibility, and to introduce the context of a historical pattern such as a cycle of violence or a response to previous attacks. International actors that may not have clean hands find it politically expedient to restrict the time period to mitigate any role in a former era and hinder full disclosure of the past, commonly during the proxy battles of the Cold War. The new (or continuing) government in power has a strong incentive to limit the time period to a range where it might be able to minimize its own actions, particularly in hybrid courts where bargaining between international actors and the state is instrumental to the final conditions. Even in international tribunals, the domestic government possesses the authority to prevent witness travel and generally hinder the investigatory process while sheltering fugitives. The exclusion of past atrocities can contribute to a sense of victor’s justice and politicize the whole undertaking. Usually, funding for tribunals comes from Canada, Japan, the United States, Western Europe, and a handful of others. With the power of the purse and the influence of the permanent members of the Security Council, major players will not support an investigatory process that exposes unpleasant facts; time periods are adjusted to face this reality.45 Subject matter jurisdiction usually includes individual responsibility for crimes against humanity, genocide, war crimes, forced labor, torture, and other violations of domestic law. Owing to the nature of criminal prosecution, the underlying sources of the conflict, including historical grievances that may tie former colonial powers to contemporary violence, are not easily written into criminal indictments. Legal cases are narrowly interpreted to prove guilt or establish innocence, not to incorporate the broad international context and complex causes of crimes against humanity. Thus, tribunals often overlook the very tangible and detrimental effects of centuries of exploitation that resulted in protracted political violence. The time period of truth commissions are generally granted an extended mandate to cast a wider net of accountability and therefore are able to investigate historical antecedents

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to violence as well as abuses on all sides. Truth and reconciliation commissions uniquely cover a broad temporal range; truth is for the past, reconciliation is for the future. A commission of inquiry or truth commission also has a much wider subject matter jurisdiction to address the post-colonial structural impediments that may have resulted from colonial practices and long patterns of retaliatory atrocities. Invariably, where truth and reconciliation commissions and tribunals operate sideby-side, the temporal mandate of the tribunal is far narrower than the commission. The division of labor in such instances is that the most serious crimes are tackled by the tribunal, while the lesser crimes are addressed by the reconciliation process. Assigning blame for a quarter century of violence is no easy task, especially if one considers the geo-strategic and commercial interests of great powers and regional actors, whose financial, military, and technical support allowed the status quo continuation of state repression in Indonesia and by consequence in East Timor. The worst abuses of the Portuguese era generally lost their saliency after 1976, but the colonial impact maintains some remnants in contemporary Timor in terms of the stratification of society along linguistic, regional, and even ethnic lines. Portugal’s delinquent decolonization and negligence in the transfer of sovereignty allowed Indonesia’s invasion and was briefly mentioned in the CAVR final report, but proving criminal liability would be next to impossible, particularly since the Portuguese era was remembered more fondly after Indonesia’s occupation than before. Without doubt, the most egregious violation of international law was Indonesia’s invasion; thus, the person most responsible for the carnage was President Suharto, along with his ministers of defense and security, intelligence (bakin), special pperations (Opsus), and others with high level command responsibility. Indonesia used the threat of a socialist outpost in maritime Southeast Asia to validate the seizure of East Timor and subsequently justified its authority for fear its diverse nation might unravel.46 Consequently, the United States supported Indonesia’s 1975 invasion due to FRETILIN’s socialist leanings and the need to fortify Indonesia as an anti-communist bulwark and strategic ally in Southeast Asia following the loss of Vietnam.47 Throughout this period, Australia feared communism and immigration from surrounding areas, particularly refugees from Southeast Asia, while making business deals that concerned the future exploration and development of ocean resources, regularly eschewing international law as it repeatedly sought to downplay Indonesia’s human rights abuses in East Timor.48 By limiting the justice process in East Timor to the events of 1999 alone, the hybrid tribunal marginalized the role of outside actors during by far

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the most heinous crimes of 1975-1977 and adopted a time frame where President Suharto could not be considered directly responsible for atrocities committed, since he had already left office. Those who endorsed his plan also share some responsibility: U.S. President Gerald Ford and Australian Prime Minister Gough Whitlam, who expressed to Suharto his preference that Timor be incorporated into Indonesia before he resigned in November 1975. None of these figures were ever indicted; Suharto and his family faced charges of graft in Indonesia after resigning in disgrace in 1998, but he was not challenged for his role in Timor and died in 2008. Foreign patrons that acquiesced or encouraged Indonesia’s invasion, supplied the weapons of Timor’s destruction, and reaped the benefits of resource extraction were leery of the full exposure that would result from a truth-telling approach or a legal investigation. A comprehensive process that indicted the activities of powerful actors like Australia, Britain, or the United States would have undone the goodwill East Timor now enjoys, reduced foreign aid, and possibly harmed ongoing negotiations and explorations with Australia over off-shore energy resources. As a Western-driven process, many Timorese in government who once denounced American hegemony or sought retaliation toward Indonesia adopted a pragmatic approach to all aspects of governance and foreign policy. One Timorese parliamentarian well summarized many Timorese views toward American culpability, “in the Cold War, Gerald Ford was bad, but within the context of anti-communism. Now, the US is good, and if not good, than necessary;” one may also extrapolate these sentiments to Australia after its supportive 1999 intervention, and for the Timorese government, reluctantly even to Indonesia.49 The Special Panels for Serious Crimes and the Indonesian court were rather unsatisfactory, since both look narrowly at the events of 1999 alone, in which responsibility was less clear. In explaining the need to examine all participants, Timorese activist José Luis Oliveira of the HAK Foundation said: “The [transitional justice] process was too local, and does not look enough at the international role….These processes are controlled from the outside, by inexperienced people, and they often forget about the community. It is necessary to include all stories.”50 Timor’s own constitution identified the creation of national and international courts to judge crimes against humanity from 19741999, but the UN-sponsored hybrid tribunal exclusively addressed the 1999 violence.51 The UN mandate in East Timor was limited to genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture committed between 1 January and 25 October 1999. In the

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case of Indonesia’s trials, both the time period and the subject matter were narrowed. The Indonesian investigation by KPP-HAM was mandated to investigate the degree of involvement of the state apparatus and or other national and international agencies on gross violations of human rights in East Timor since January 1999, including genocide, massacre, torture, forced displacement, crimes against women and children, and systematic destruction of property as preliminary evidence for the imminent investigation and prosecution.52 Changes were made as the report was formulated into law: the beginning date of the mandate was narrowed from January to April, and only murder and persecution were listed as crimes. In fact, the long time period was ignored thrice, as the CTF mandate was to reveal the nature, causes, and extent of 14 reported incidents of gross human rights violations in East Timor solely in 1999, though it did review the documents of the four pre-existing institutions, KPP-HAM, the ad hoc Human Rights Court, the Special Panels for Serious Crimes, and the CAVR. Although nearly 70 percent of cases were from the more recent 1999 violence, the CAVR was better able to adapt the historical and socio-cultural context, including the role of outside forces.53 Thus, the only process to address all actors was the CAVR, which reported on the role of Australia and the United States generally, and Whitlam, Ford, and Kissinger specifically, for their failure to prevent Indonesia’s invasion and the military support provided during the occupation, including the use of American, British, and French weapons, often for offensive purposes. Few would expect heads of state of major powers to face justice, but acknowledgment of the detrimental role of the United States and Australia was possible as a formal apology. The CAVR called for reparations from Britain, France, and the United States for their military support to Indonesia during the occupation. While the truth and reconciliation commission mandate was broad and examined more fully the Indonesian invasion, occupation, and withdrawal from 1974-1999, it only minimally considered the Portuguese period and offered surprisingly little regarding Australia’s close ties to the regime. Contributing to Success: Resources and Budgets

Substantial financial expenditures to promote institutions of transitional justice suggest more than a casual allegiance to the goal of accountability; salaries, infrastructure, and overhead expenses are enormously costly. Owing in large measure to the horrific scale of the ethnic cleansing and war crimes of the former Yugoslavia and the genocide in Rwanda and the international shame felt by Western powers

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for doing too little too late in both cases, the two ad hoc war crimes tribunals were endowed with ample resources to collect evidence, interview witnesses, build facilities, and hire well-trained judges, prosecutors, and public defenders. In existence for a decade at a cost of more than one billion dollars, the ICTR and ICTY may have had more critics than supporters; disillusion with the wasteful spending and slow pace of international justice trials was pronounced. Frustration with imposed justice and the inefficient and expensive ICTR process even led Rwanda to conduct more than 7,000 genocide-related trials and revive its customary gacaca process for lower-level perpetrators. In a selfreport, the United Nations proclaimed that international or mixed tribunals have been “expensive and have contributed little to sustainable national capacities for justice administration.”54 Enormous financial expenditures on transitional justice mechanisms while poverty still reigns weakens domestic support; many in the local population tabulate the millions ‘wasted’ in overhead costs and inefficient allocation of resources in UN peacebuilding programs, and the justice sector may be seen as one small part of that much larger project. As a result of these failings, new experiments in more affordable hybrid tribunals with more limited budgets were adopted. While the international tribunals squandered funds, the hybrids generally lacked the resources to efficiently conduct cases and complete its work to the full extent of its mandate. Both the CAVR and Serious Crimes Unit were totally financially dependent on contributions from international sources, the latter funded through UNMISET. Yet under-funding of transitional justice mechanisms is another way in which fairness and accountability are lost. The SCU budget was enormous in relation to the ordinary crimes component; however, its funds were miniscule when compared with the ICTY and ICTR. For the period 2003-2005, the total operating cost of the Serious Crimes Unit and Special Panels was $14.4 million or around five percent of the overall assessed contribution to UNMISET, which amounted to approximately $300 million; the majority of costs were incurred by the salaries of international staff.55 Inadequate resources for East Timor’s hybrid tribunal directly affected the justice process; investigations could not be effectively conducted, the quality of court personnel was substandard, and victims, witnesses, and perpetrators were harmed by poor transportation services or bad prison conditions. Financing was scarce and transportation was difficult in this mountainous terrain with poor infrastructure, impassable roads, and few vehicles, presenting a risk of preoccupation with the capital (Dili) at the expense of outlying districts. Shockingly, sometimes witnesses, victims, and suspects would travel to the tribunal together

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from the countryside in a single UN vehicle due to logistical constraints.56 In fact, witnesses were often not picked up to return to their compound (only one person was available to staff the Witness Management Unit), were not properly counseled and given no preparation to explain that the accused would be in the courtroom, and often not even provided water to drink during long testimonies.57 Trials can be extremely burdensome; witnesses missed valuable time at home, sometimes important planting seasons, and often lacked relatives with whom to stay in Dili and received no money for accommodation. As a result of these factors, villagers considered the trial process only to be for the elites. Moreover, the UNMISET forensic lab itself was rather rudimentary, reflecting that the criminal process was an afterthought and not sufficiently funded. Critics felt that the indigenous staff, commissioners, judges, and the rest were subservient in decision-making to their international advisers; certainly the international staff or hired experts in each process were paid handsomely. Timorese judges were also frustrated and felt that they were not treated equally to the international judges, who as UN employees possessed far higher salaries with administrative support and leave entitlements.58 Short-term contracts and high staff turnover repeatedly obstructed the court’s operation; only one judicial panel operated for most of the first three years, until a second and a third started functioning after mid-2003. Trials were frequently postponed, sometimes for months at a time, or delayed for a host of reasons: no vehicle or driver was available to pick up witnesses, a judge could not attend, staff members were on vacation, the departure of a judge could force a new trial, lawyers regularly sought adjournments and continuances to prepare cases, or personnel simply did not appear. Though diligent, interpreters were unfamiliar with the courtroom’s technical legal terms. Participants could not discover when trials were postponed absent modern communications and thus arrived at the court with no place to stay and no trial to attend.59 The Court of Appeal was unable to function for more than a year, 34 serious crimes cases were pending when it reopened in July 2003; though its performance improved by the summer of 2004, appeals were difficult since early trials had no transcript. Limited resources created systemic bias that resulted in a poor defense for the accused. The prosecutor’s office enjoyed far more resources than did the defense, possessing more than 100 staff while the public defenders had only several assistants. At its peak in 2002, the Serious Crimes Unit had 106 staff: 31 international, 16 UN volunteers, 20 UN police, 29 national staff, and 10 national trainees working as

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prosecutors, investigators, forensic experts, and translators, before it began to be downsized in 2003. Headed by the Timorese Longuinhos Monteiro as prosecutor-general, the real decision-maker was the deputy prosecutor-general, of which all five were UN-employed international civil servants. By contrast, the defense was perennially under-funded, performance suffered as a result. No witnesses were called in the first 14 trials that took place before the Special Panels, as nine inexperienced Timorese public defenders had to defend individuals clients accused of serious crimes against professional international prosecutors. In September 2002, UNMISET created a Defense Lawyers Unit (DLU) of only one lawyer, which expanded to seven international defense lawyers, three legal researchers, and the director when the court closed in May 2005. After the arrival of international staff, defense improved marginally but local defenders were largely ignored as a result. After the court’s underwhelming debut, its conduct improved over time, following a work schedule, improving the quality of translation, and hiring better judges and staff; nevertheless, the first impressions of local inhabitants could not be altered. Even the UN diplomat heading the UN mission recognized the failings of the trials: “The CAVR is better than the Serious Crimes Unit, but it is preferable to find a balance between justice and reconciliation…the Serious Crimes Unit was designed to cut the costs of the very expensive ICTY and ICTR.”60 Traditional mediation reduced the constraints on the formal justice sector and the CAVR’s use of that model for its reconciliation sessions greatly lowered its financial burdens. The CAVR received its voluntary funding from Japan and the United Kingdom, followed by Australia, Ireland, the European Union, New Zealand, Norway, and the United States, and its total expenditures amounted to $5.6 million as of January 2005.61 Yet the CAVR also faced the same difficulty to reach remote areas, and efficiently entering statements was challenging. Some challenged the CAVR for choosing regional commissioners based on their ability to speak English and proficiency with computers, skills reflective of life in exile. Nevertheless, by the nature of its methods, the CAVR made productive use of sufficient resources. Neither process related to Indonesia was awash with money, though adequate financial support was not a principal failing. Indonesia’s court system was not well-funded, faced with poor technical expertise and inferior equipment among prosecutors, and had difficulties in producing witnesses, paying judges on time, and managing cases.62 Meanwhile, the CTF had a robust budget of $4 million, but did not appear to manage its time and resources effectively, as it involved only 147 people in interviews, hearings, or taking statements, and received a submission

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from only one additional institution.63 Although the tribunals were more wasteful of budgets than the cheaper and more responsive commission processes, overall resources may have been adequate if properly targeted and made part of a larger strategic vision. Locating Justice

The pursuit of an international tribunal is seen as validating the scale of the atrocities, yet trials far removed from domestic constituents may lessen their societal impact and new attempts by outside countries to apply universal jurisdiction may upset national sensibilities. In the short run, unfulfilled expectations may cause a significant backlash by domestic groups toward these internationalized institutions and their promises of accountability, justice, reconciliation, and human rights, which could result in inadvertent support for hard-line domestic leadership that may inhibit or destroy a tenuous and fragile peace. The 2001 handover of Slobodan Milošević to the ICTY by Serbian Prime Minister Zoran Đinđić stirred nationalist sentiments in Serbia so profoundly that Đinđić was assassinated in March 2003. Whereas the international tribunals were administered by foreign nationals in lands far from the site of the atrocities, the hybrid courts sought to correct this facet, though with two countries involved in East Timor, location remained a central issue. The UN Commission on Human Rights had originally recommended that a tribunal would sit in Indonesia, East Timor, and any other relevant territory to try and sentence those accused regardless of the nationality of the individual or where that person was when the violations were committed. Ultimately, distinct trials were conducted in both capitals, Jakarta and Dili. The pedagogical value of justice is to be found in its geographic and cultural proximity and whether its hearings and records are open to the public and disseminated freely and widely. The local population must feel a certain ownership of the process, and the effective use of the media will greatly impact public sentiment toward these institutions and is integral to its acceptance in the community. Public interest in the Timorese trials was quite limited, few Timorese were made aware of the proceedings and even fewer attended. Most information in East Timor is still disseminated through face-to-face interaction; if people did not see the court’s proceedings, very little would be known about it. The United Nations created a comprehensive website full of useful details for the tribunal, but this was largely for international consumption; computers were uncommon and internet service and connections were rare and quite slow. The independent court observer JSMP conducted a thorough

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review of the judicial process, offering press releases and an impressive website, though its audience was primarily the NGO community.64 The majority of the population could not afford to own a television and the one state-run television channel provided little Tétun programming, though court cases were not televised and only rarely even videotaped as a documentary archive. Newspapers were multilingual, but priced prohibitively, thus radio was the major source of information beyond personal interaction, though the court proceedings were obviously not transmitted in such a manner. In 2003, indictments began to be publicly announced in the areas where the crimes were committed, rather than simply from headquarters in Dili, and a public affairs officer was hired to distribute fact sheets and reports.65 In April and May 2005, the Serious Crimes Unit held a series of community outreach meetings to explain the imminent closure of the trial process, but the verdict was likely already made and the tribunal’s efforts to be relevant were too little, too late. No doubt the absence of high profile suspects contributed to the lack of interest at the Special Panels. More than 300 indicted suspects remain outside East Timor’s jurisdiction, particularly higher-level perpetrators from the Indonesian military and government; thus, by necessity the focus of the hybrid court was on mid-level Timorese militia members. Among militia members who returned to East Timor, many pro-integration leaders remained outside the justice or reconciliation process; thus, low-level militia personnel who may have been coerced into following orders met some degree of reckoning in the CAVR, while militia leaders and military commanders, within and without East Timor, continued their impunity. In fact, the Serious Crimes Unit was unable to extradite or arrest the accused even when warrants, and in some cases Interpol red notices, were issued; the proceedings of each process must be seen in lieu of this reality. In contrast to the more private affair of a court case, CAVR public hearings and reconciliation meetings were highly observed, as they were not only held across the country, but were also broadcast live on television and radio. After the 2005 release of the CAVR final report, dissemination teams delivered audio, video, and paper publications to the local district level and across social groups. The CAVR was better able to communicate its findings, reports, and proceedings to a larger public since it incorporated indigenous customs and culture through its links to traditional village mediation.66 Even one member of the trial process expressed a view that the truth commission may be closer to justice, as defined by the local community, than the tribunal, stating “this is supposed to be local justice but the attendance is terrible.”67

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The truth commission was also careful in its symbolism. Just as Chile’s commission report was presented in the same football stadium that was once employed for torture, East Timor used the Ex-Comarca, the former Portuguese prison used by the Indonesian interrogators for torture and abuse, as its headquarters. These choices clearly affirmed that the old regime was finished and previous sites of atrocities would now be employed for recovery and reconciliation, weakening the fearsome grasp of these locations. By contrast, Timor’s new supreme court, which also served as home to the tribunal, was a brand new building surrounded by urban squalor, symbolizing if anything the disconnection in priorities between the process inside and the reality behind its chambers, where most of the public desired development (see Figure 4.5 below).

Figure 4.5

A View from the Ground: The Tribunal and TRC

Top Left: Entrance to the newly constructed tribunal; Top Right: Entrance to the CAVR in the Ex-Comarca prison; Bottom Left: Inside the tribunal, a video camera and monitor were in place but unused; Bottom Right: a family lives in the shadow of the tribunal. Photos: by the author, Dili, East Timor.

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Perhaps the only thing worse than no attendance is a hostile or intimidating audience, as was evident in both processes held in Indonesia, the domestic courts and the public hearings of the CTF. Decorum was also an issue; audiences composed largely of Indonesians with little knowledge of, or interest in, Timorese history oscillated between disinterest and amusement. Reportedly, when the Damiri verdict was announced at the Jakarta trials, the defendant and members of Kopassus stood on the benches and began to shout and threaten, causing the judges to flee the courtroom and the courthouse.68 Meanwhile, accused persons who made light of violence at the CTF were at times greeted by laughter and clapping. Worse still, some victims recounting traumatic events were also subjected to audience laughter at victims’ attempts to speak Indonesian or at aspects of their testimony.69 A perpetrator’s knowledge that the audience is sympathetic and ignorant of, or even amused by, the events can easily affect the veracity and tone of the testimony. The CTF was seen as irrelevant and few Timorese attended the hearings since most witness testimonies were during the five of the six sessions that took place in Indonesia (two in Denpasar and three in Jakarta) and prominent testimonies such as that of President Gusmão were held in closed-door sessions at the only hearing in Dili. The audience tended to comprise government officials, diplomats, NGOs, national and international media, and was poorly attended in both Indonesian fora. Even notorious militia leader Eurico Guterres appeared to acknowledge in his testimony that the truth would not be found in the absence of victims: “I think this [process] is not for seeking the truth, because I don’t see here the victims’ families, who can say to me that I killed their families, or committed violence to their father or their family and at that place or that time. Those who want to say I killed people, if there are people who know, they can stand to say that to me. If there aren’t any here, I think we question this truth.”70 Implementation of Transitional Justice

The decision to hold alleged perpetrators accountable is easier when the target has been defeated and the regime removed from power. Indicting war criminals still in positions of power, especially a sitting head of state, could risk alienating the domestic populace, inflame nationalist sentiments, and ultimately destabilize a regime. Moreover, indicting significant rebel groups could likewise undermine a peace process and push such forces toward becoming spoilers or launching an overt insurgency. Often, notorious figures are granted amnesty in order to engage them in a bargaining process or in prioritizing the need for

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security, assuming that only the current leader can deliver the constituents needed to secure the peace. This quandary represents the all too familiar trade-off between peace and justice. A further dilemma is whether to indict moderates or peacemakers in order to be impartial or to ignore their crimes as they may pale in comparison to the greater atrocities that were the focus of the process. Agreement to create transitional justice mechanisms at all is a serious accomplishment; arrests and trials symbolically signal a break with the past and have merit for that reason alone. If diplomatic machinations allow hardened war criminals that committed egregious human rights violations and crimes against humanity to escape international criminal justice, a thorough rendition of obscure or unpleasant ‘facts’ through a truthtelling mechanism may be the most plausible option. The conduct of the process itself can be judged according to its ability to hold perpetrators accountable in an effective, efficient, and understandable manner with professional standards according to the norms and rules accepted by its practitioners. The fundamental question in the pursuit of legal accountability is whether or not the perpetrators were indicted, arrested, tried, and sentenced. Indictments can be a political act, weighed against the need to maintain compliance with a diplomatic process; having gained an indictment, capturing at-large war criminals is challenging. In general, the greatest obstacle to accountability in East Timor was arresting fugitives, though the other stages presented hurdles to overcome as well. In some cases, the period from arrest to trial became an issue, as the aforementioned resource limitations began to impact the judicial process and raised questions of fairness and the violation of due process rights for the alleged criminals who were held in pre-trial detention. Finally, the length of sentencing was often much less than expected, and of course capital punishment was not a penalty in any of these hybrid or international tribunals. Throughout, each institution would require the continued support of the international community to conduct their work. Since none of the four processes were established as immediate aspects of the peacebuilding process, the conduct of each will be examined in the order in which they concluded their work: the Indonesian trials, the hybrid court, the CAVR, and the CTF.71 The Indonesian Trials Few countries willingly admit the abuses of their own checkered past and even fewer prosecute of even acknowledge war crimes committed by their own administration and its forces. In keeping with this presumption, Indonesia demonstrated its rejection of the transitional

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justice process as it obstructed and stalled, before finally launching a trial process universally condemned as unfair and intimidating. Indonesia’s policy to avoid accountability was thus a success, its impunity tolerated by its strategic value and regional preeminence. Although accountability for senior figures was not attained and in the end all 18 suspects were acquitted, the very holding of trials cannot be wholly dismissed, several key figures were indicted and tried in a court of law and other positive outcomes are discussed later in regard to the contribution made to judicial reform of the Indonesian legal system. In part, the Jakarta trials failed due to the lack of capability and standards of professionalism to be found in many developing countries. As David Cohen described, “the Indonesian legal system typically does not operate to advance those who are most competent…a good judge or prosecutor follows orders, and those who don’t are denied advancement,” and human rights cases are less lucrative since they are difficult, politically risky, and provide little compensation.72 A 2004 Open Society Institute report found that prosecutors did not understand crimes against humanity and the concept of command responsibility, and were unable to assure the protection of witnesses, particularly in the intimidating courtroom environment that Indonesia had promoted with the presence of TNI soldiers.73 Limitations derived from judicial incompetence pale in comparison to the political interference that generally prevailed over the course of the trials and appeals process. The Indonesian trials failed to ascribe command responsibility to those in the civilian and military leadership positions of the Indonesian government. Initially, all 18 prominent suspects were tried, and all but six were acquitted; those found guilty at the time were given short sentences of three to ten years and remained free pending appeal.74 Colonel Nuer Muis was found guilty of crimes against humanity and sentenced to five years in prison; and despite the prosecutor’s request to acquit him, Damiri was found responsible for a failure to prevent certain crimes and was sentenced to three years in prison in August 2003. In August 2004, four of the convictions (Damiri, Muis, Police Chief Commissioner Hulman Gultom, and Lieutenant Colonel Sujarwo) were overturned on appeal; thus, all the police and military officials involved were ultimately acquitted and only civilians were found guilty. The only two whose guilty sentences were originally maintained were also the only two ethnic Timorese; all of the accused Indonesians promptly went free. Governor Abilio Soares was the first to serve jail time when his three-year sentence began in July 2004; however, he was released in November 2004 on the grounds that any actions taken in East Timor were under military rule and as a civilian he

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could not be held responsible. Ironically, President Gusmão and other prominent Timorese citizens sent letters to the Indonesian court asserting Soares’ innocence and urging his release in a further demonstration of Timor’s desire to promote harmonious relations with its powerful neighbor. Aitarak militia leader Eurico Guterres, a Timorese civilian, was sentenced to ten years in prison for crimes against humanity. Guterres initially remained free and his sentence was reduced from ten to five years, before he registered his new Laskar Merah Putih (Red and White Warriors) militia in West Papua and rejoined with the former Timor Police Chief, and current West Papua police head, Silaen.75 The Indonesian Supreme Court subsequently reinstated the original sentence and he was jailed in May 2006, only to be acquitted in April 2008. Thus, in the end all defendants were acquitted on appeal. The United Nations found the Indonesian process to be ‘manifestly deficient’ and ineffective at delivering justice.76 Perhaps even more offensive to justice than the results of the trials was the manner in which the trials were conducted. Fundamentally, the court (prosecution, defense, and to some extent even the judges) contributed to a false narrative that Indonesian authorities were keen to promote for public consumption, suggesting that the violence resulted from a series of spontaneous clashes, or acts of revenge, caused by pro-integration forces against other Timorese without any organized support or participation by Indonesian military, police, or security units.77 Eventually, 12 of the individuals tried by the ad hoc court were indicted by the Serious Crimes Unit, raising the specter of ne bis in idem (or double jeopardy), but without any political will to extradite, such procedural issues were unnecessary to resolve. With the slow motion train wreck of the coterminous Indonesian trials, the hybrid court in East Timor appeared to be the only opportunity to attain accountability. East Timor’s Hybrid Court Although the Indonesian courts were purposefully a travesty of justice, an approximate outcome to the Indonesian result was attained in the court of East Timor almost incidentally to its efforts. Since the UNTAET mandate had not included specific reference to transitional justice mechanisms, the process began in fits and starts with little overall coordination. Nevertheless, the court functioned, finding witnesses, taking thousands of statements following the 1999 violence, holding trials, and handing down sentences despite the political environment that limited its capacity. For instance, on 11 December 2001, the ‘Los Palos case’ resulted in ten convictions for crimes against

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humanity that occurred at a church in the Lautem district on 25 September 1999 after the INTERFET arrival, and the ‘Lolotoe case’ found Kaer Metin Merah Putih (KMP) militia commanders João Franca da Silva, José Cardoso Ferreira, and village chief Sabino Gouveia Loite guilty of crimes against humanity.78 In the final judgment of the last trial before the Special Panels for Serious Crimes, Laksaur (Flying Eagle) militia members Sisto Barros and Cesar Mendonça were sentenced to nine years in prison for committing crimes against humanity in the Suai region in October 1999. In the interim, a variety of obstacles would obstruct justice. In November 2000, the Security Council expressed that “UNTAET [was] facing significant difficulties in bringing to justice those responsible for the serious violations of human rights that occurred in East Timor in 1999.”79 With that impetus, the Serious Crimes Unit’s first indictments for domestic crimes were issued in December 2000, a year after the outbreak of violence, and trials began in January 2001; it would take almost a year before charges of domestic crimes were reformulated as crimes against humanity. Due to time and resource limitations, the court decided to focus on ten “priority” cases, and by the end of 2001, 12 trials that included 21 defendants were held. With the addition of a second panel, the court began to extend its competency by late 2003, at which time it was instructed to prepare for its closure, issuing its final four indictments in December 2004. After settling the scope of the prosecutions, the procedural issues and rules of evidence came to the forefront. Jurisprudence and the ‘Dos Santos’ case. International and hybrid tribunals as ad hoc creations face the dilemma of melding diverse national styles and differing legal traditions, particularly the Western common law and civil law practices. Common law countries such as Britain and most of its former colonies, including the United States, adopt a stare decisis (‘to stand by things decided’) approach that allows legal judgments from law cases to stand as precedent for future rulings. Custom can fulfill a supplementary role in a common law system and judges have greater authority to interpret the law, though they usually act as impartial referees. Civil law is predominant in continental Europe, its former colonies (including those of the the Netherlands and Portugal), and most of rest of the world using codified statutes or legislation as the foundation for judgments. While common law systems are often adversarial, with prosecutors and defense lawyers crossexamining witnesses and arguing to ascertain facts, civil law methods tend to be inquisitorial, allowing the judge to directly question

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witnesses. The standard to convict is also quite distinct, common law nations generally set a standard of guilt beyond a reasonable doubt in criminal proceedings (or a preponderance of the evidence in civil suits and military courts-martial); whereas civil law courts usually adopt the French principle of intime conviction, a reliance on the judge’s inner certainty. Other comparative differences can include the preference by civil law systems for written rather than oral arguments and a greater emphasis on social stability versus the focus on individual rights of common law nations. The goal of promoting diversity among court officials created conflicts between differing legal cultures and jeopardized basic standards of fairness. Although international criminal tribunals tend to adopt the inquisitorial approach, prosecutors generally hailed from common law countries, while public defenders tended to be from civil law countries, and for a time, all judges were from civil law nations. As a result, differences such as the lack of a grand jury, the only nominal role of the investigating judge, and broader inconsistencies between adversarial and inquisitorial systems challenged the judicial process and the courtroom proceedings. The absence of uniform operating procedures and clear investigation policies made it very difficult for the innocent to get a fair trial; in the words of an American public defender: “The innocent stand no chance.”80 The complexity of distinct authorities in the hybrid model creates extraordinary challenges when national and international prerogatives diverge, as highlighted in the Armando dos Santos case. In an environment where domestic politics impacted the developing jurisprudence of the court, a simmering tension between the lower-level Special Panels (two international judges and one Timorese) and the higher-level Appeals Court (two Timorese judges and one international) reached a crescendo when in July 2003 the Court of Appeal applied the Portuguese penal code as a subsidiary law to convict Armando dos Santos for genocide (jenosídiu in Portuguese) on an appeal, though he had never been charged with genocide, but rather crimes against humanity. At issue was which subsidiary law to use, Indonesian or Portuguese. Sergio Vieira de Mello, the Transitional Administrator, had recognized Indonesian law as the proper subsidiary law, thus the applicable laws for the Serious Crimes Unit were UNTAET regulations, Indonesian law not in conflict with UNTAET legislation, UN Security Council Resolution 1272, and internationally recognized human rights standards. After independence in May 2002, the applicable laws were international law, Timorese domestic law, UNTAET regulations, and Indonesian law.81 The Special Panels continued to use UNTAET

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regulations and Indonesian law, while the Appeals Court argued that Portuguese law was technically the appropriate code since Portugal was the officially recognized sovereign of the territory prior to UN administration. Good relations with Portugal, Timor’s rare supporter at the United Nations, were a chief priority of the new government; the Court of Appeal, also the highest domestic court, promoted the government’s relationship with Portugal and its desire to see Portuguese, the language of resistance to Indonesia, as an official language. In fact, judges are sent to Portugal for training and several prominent judicial officials have returned from Comunidade dos Países de Língua Portuguesa (CPLP) Portuguese-speaking countries, though 80 percent of domestic court actors have essentially no Portuguesespeaking ability.82 At length, the lower court Special Panels explained the miscarriage of the Court of Appeal decision and refused to follow it, arguing that Indonesian law was still subsidiary law, that the Court of Appeal cannot promulgate law, and that the Court of Appeal violated the Constitution, the rights of the accused, and international human rights standards.83 The Special Panels contended that the Court of Appeal convicted the accused of a crime for which he had not been charged and an offense not in the regulations. The National Parliament finally clarified that Indonesian law continued to apply as the default subsidiary law, but the dos Santos conviction for a crime under Portuguese law was not overturned and the impact of the dos Santos case was very prevalent during subsequent trials. The Domingos Mendonça case demonstrated the effects of the unexpected procedural issues that arose during the five year operation of the court. The conduct of the trial read almost like a comedy of errors after his initial arrest and detainment on 31 March 2001, though its sessions are not atypical of the overall performance of the court. The case involved an attack on pro-independence, pro-FALINTIL civilians by the Tim Sasurat Ablai militia around Orema village in Same subdistrict, Manufahi district. The attackers threatened to kill all those who did not vote pro-autonomy and stabbed villagers to death with spears, threatening the villagers of Grotu Lau, ‘There is no referendum, there is only autonomy. Referendum is coming from where? Autonomy will be here till we die.’ At least eight times Mendonça’s trial was postponed for a multitude of reasons: judges were absent or were busy with other cases, the courtroom was occupied, the accused did not attend, etc. By the time the case made it to court on 30 June 2003, two of the four accused, Benjamin Sarmento and Romeiro Tilman, chose to plead guilty and the cases for the other two defendants, João Sarmento and

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Domingos Mendonça, were severed. Pretrial detention was mandated at no more than six months with a three month extension, or a reasonable standard in serious crimes; yet according to JSMP, the average time spent in pre-trial detention was 362 days, with the longest being three and a half years. In one case, Carlos Ena was acquitted after spending 503 days in pre-trial detention.84 At the beginning of the trial for the latter two, the court explains that the dos Santos precedent would not be followed in this case. Immediately, the defense contends that there are now two contradictory opinions and not knowing which law to follow, could not be expected to effectively prepare for this case. The judges explain that the witnesses are here so it is best to continue using the Special Panels perspective, before suspending the case until the afternoon session. As the trial hearing continues on 4 August, the third member of the group, João Sarmento, reaches a plea deal. Sarmento is told to stand and the Timorese judge asks directly in Tétun whether he committed a murder on 17 April 1999 in Same, Manufahi. Sarmento replies ‘if I have done the things that I am accused of, then I am guilty.’ After several attempts to clarify exactly his personal responsibility, he ‘accepts’ the charges against him. He appears remorseful, or at a minimum aware of the gravity of the situation. The next day, he enters the courtroom freely and alone, nods humbly, and we all greet him with a collective ‘bom dia.’ He greets the prosecutor and does the customary clasped handshake with the defense counsel, who greets him with a bright smile; a jovial spirit of goodwill permeates the courtroom. The judge reiterates the charges for which he has pleaded guilty: crimes against humanity-killing for the two September 1999 murders in Same as part of a systematic attack on a civilian population, crimes against humanity-murder on 9 September 1999 in Same in a systematic attack on a civilian population, and crimes against humanity-deportation from Same in a systematic attack on a civilian population. As the judgment concludes, the interpreter’s cell phone accidentally rings, Sarmento departs the court, and the case continues for the remaining alleged perpetrator Mendonça, a farmer by profession who claims that he was forced into the militia. In the interim between hearings, the interpreter interjects to tell the court that witnesses are complaining that they cannot sleep due to the late night parties held in the sleeping quarters of the Serious Crimes Unit by the international staff. The JSMP observers promise to investigate and later conduct a review of the situation. Over several weeks, about a dozen witnesses testify, nearly all relatives of either the victim or accused, before the court renders a judgment.

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The evidence did not always seem conclusive in such a process to reach a standard of ‘inner certainty’ if almost all testimony was translated. Problems became apparent in many cases when bystanders or those who only struck a few blows were charged with crimes against humanity and when sentences for true crimes against humanity only resulted in roughly ten-year prison terms. Manuela Perreira of Fokupers felt that “the Serious Crimes Unit was not good or effective; it used poor methods to approach victims since they don’t work through local NGOs. Their skills to collect data and method to get information are poor, and their statements in the field and in the court are often conflicting about the truth. It is difficult for women to open up to international staff, even to Fokupers. UN personnel changes periodically and it’s difficult to build relationships.”85 The maximum sentence available was 25 years, a $500,000 fine, and forfeiting the profit from crimes;86 though sentencing by the Special Panels was rather inconsistent. Most of those convicted received sentences in the range of seven to fifteen years. Throughout the trials, no charges of genocide or war crimes were brought, though a variety of crimes against humanity were prosecuted: extermination, deportation (refugees) or forcible transfer (IDPs), imprisonment, torture, rape and sexual violence, persecution (on the grounds of political, racial, national, ethnic, cultural, religious, gender, or other discrimination), enforced disappearance, and other ‘inhumane acts’ and the domestic crimes of murder, homicide, and rape were included as well.87 In deciding this case, the court considered mitigating circumstances such as living in a coercive environment, being married with children (which did not count for significant weight), and having no previous convictions which offered some clemency, versus the aggravating circumstances such as murdering the defenseless and acting jointly. Mendonça was ultimately sentenced to ten years and six months, though the Timorese judge dissented that the sentence was excessive since Mendonça did not have command responsibility and therefore should be only imprisoned for eight years and six months. Yet the conduct of the court did not undermine the justice process as much as political maneuvering and the opposition of key constituents, namely the governments of East Timor and Indonesia. Prospects for accountability sank when Timorese resistance heroes now facing the responsibility of governance switched from full support of criminal tribunals to peace and nominal reconciliation. President Gusmão constantly reiterated his emphasis on reconciliation between Timor and Indonesia, and was instrumental in the formation of the joint East Timor-Indonesia truth commission, stating in 2005 “Another way to

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make justice is revealing the truth, revealing who is behind all the atrocities.”88 Extradition and the Wiranto Indictment. Though innovative and with broad powers of indictment, East Timor’s Serious Crimes Unit was hamstrung by the failure of a meaningful process of accountability in Indonesia, where the principle culprits reside beyond the reach of international justice. The Serious Crimes Unit needed Indonesian cooperation, itself gained only by international pressure, to have suspects returned to Timor for questioning and/or prosecution. The SCU list of indictments and the legal process itself created diplomatic tensions with Indonesia, which refused to hand over notable figures, though the near impossibility of extradition lessened the backlash. Ironically, the Wiranto case proved to be the breaking point in the relationship between the Timorese political leadership and the hybrid court as both bodies disassociated themselves from the Wiranto arrest warrant. In fact, when on 24 February 2003 the prosecutor’s office of the Serious Crimes Unit indicted former minister of defense and commander of the armed forces General Wiranto for crimes against humanity, as well as six senior TNI members and the former governor of East Timor, even the United Nations was careful to distance itself from the political fallout as Indonesia blamed the United Nations for what it saw as a politically motivated case. In response, UNMISET issued a statement declaring that the indictment was issued through East Timor’s prosecution service and not by the United Nations. Any vestigial support for the justice process from the Timorese government evaporated as it publicly declared that the indictment was the work of the United Nations, and not of East Timor, and quickly tried to revise the indictment. The Special Panels refused to reconsider the indictment and an arrest warrant for General Wiranto was issued on 10 May 2004, at which point President Gusmão met then Indonesian President Sukarnoputri in Bali to adopt a reconciliatory approach, used his Independence Day national address to praise the Jakarta trials, and met personally with General Wiranto (the government party Golkar’s failed 2004 presidential candidate) to perform an act of reconciliation that received strong condemnation from victims’ groups and civil society organizations.89 The Timorese leadership reminded the Serious Crimes Unit’s Timorese Prosecutor General Longuinhos Monteiro “what is in the interests of the state,”90 who then denounced the ‘international staff’ and unsuccessfully tried to withdraw the Wiranto indictment, before deciding not to submit the warrant to Interpol.

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At the conclusion of the trials process on 20 May 2005, 95 separate indictments were issued, encompassing 391 accused persons for a total of 684 murders resulting in 285 arrest warrants, including for 37 Indonesian military officers from the TNI, four Indonesian police chiefs, 60 Timorese TNI officers and soldiers, the former civilian governor of East Timor, and five former district administrators. A total of 55 cases were heard and 87 defendants were tried; of these, 84 were convicted and three acquitted, 24 of the accused pleaded guilty. A further 13 defendants had their cases withdrawn by the Serious Crimes Unit or dismissed by the Special Panels; one defendant was ruled mentally unfit to stand trial. Moreover, 186 outstanding murder cases were investigated without issuing indictments and 469 additional murder cases could not be investigated due to the closure of the courts; the investigative arm closed six months prior to the close of cases. As a result of the lack of cooperation by Indonesian authorities, the court’s convictions all related to relatively low-level perpetrators: Timorese militia members and junior TNI officers, aside from one former FALANTIL soldier. Out of those indicted, 339 remained at large, outside the court’s jurisdiction. The second failure of a court process was assumed to be the undoing of the transitional justice process overall, the truth and reconciliation commission was essentially an afterthought. East Timor’s Truth and Reconciliation Commission At approximately 9:45am on 28 July 2003, around 250 people gathered in attendance for a public hearing (Audensia Publika) on Forced Displacement and Famine (Muda Obrigatorio no Hamlaha) at the ExComarca in the Balide neighborhood of Dili. A remarkably strong turnout since this was not the most prominent of subjects; most hearings would have even more observers. Four major cameras recorded the footage and Timor’s UN-funded Televisão Timor-Leste (TVTL) television station captured and transmitted the proceedings, narrated by the nation’s leading newswoman Francisca Gonçalves. At least 90 percent of the audience was Timorese, ranging from teenagers to elders who had arrived from across the country despite the difficult journey. Cigarette smoke wafted about the open air pavilion under a corrugated metal roof, a couple of palm trees and three adjoining tents offered some shade from the intense sun. First, an Australian aid worker testified as to the geopolitical ramifications for the United States and Australia of the 1970s Vietnam War era, the occasionally deleterious effects of choices made by the Vatican and the Pope, as well as the courageous efforts of various NGOs. Figure 4.6 on the following page depicts the swearing in and firsthand testimony of witnesses at a CAVR public hearing.

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Figure 4.6

CAVR Public Hearing

Left: Patrick Walsh (left) is sworn in by Isabel Guterres; Center: João Sereno offers testimonial on 1970s forced deportations. Photos: by the author, CAVR Public Hearing on Forced Deportations, Ex-Comarca, Dili, East Timor.

Later, the victims spoke calmly and casually expressed their moving stories of suffering, occasionally pausing to regain composure when caught up by emotional memories. The testimonies of the witnesses (sasin nain) were in Tétun, with English translations of the prepared remarks passed out to attendees. A Timorese acquaintance, a Catholic friar in his mid-20s, kindly provided instant translation, commentary, and interpretation. Having described the humiliating impact of laughter, it should be expressed that in a more intimate and familiar setting, telling jokes and recounting amusing stories is especially commonplace in Timorese society. Humor frequently accompanied so many passionate renderings of awful brutality and tragic loss at the truth commission and elsewhere, and in some ways served as a reconciliatory aspect of the process demonstrating the willingness to understand the complexity of the choices made by individuals to resist or collaborate. This humor was on display during the telling of a story during a public hearing of the reconciliation process that I observed when a middle-aged man from Kovalima recounted how an Indonesian officer threatened to steal his wife during the tumult of the mid-1970s. When he protested, the officer said that he was too ugly to have such a pretty wife; the witness joked that perhaps it was true. The abduction of women as wives or servants, along with men and boys as porters or virtual slaves, was not a rare occurrence during Indonesian times, and even happened to the first wife of Xanana Gusmão. Those affected certainly understood the tragedy deeply, yet more often than the displays of feelings of vengeance were ‘gallows humor’ or an ability to see the larger context in which

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decisions were made in a manner that seems less common in other, particularly ethnic, conflicts. The CAVR was carefully modeled after traditional justice methods (nahe biti boot) used in Timorese villages, though a balance was struck between the collective harmony of the village and human rights norms. Since militia members and resistance fighters were often recruited from the same families and villages, the need for reconciliation was particularly acute. A hearing usually had a panel of three to five persons, a CAVR staff member, a village chief, a church representative, a women’s representative (which was mandatory), a youth leader, and occasionally a spiritual elder, and was chaired by a regional commissioner trained in conflict resolution.91 The clan played a central role and the local community led the mediation, with Timorese running the cases and examining the perpetrators, though the CAVR panel ultimately decided upon the process. The process of asking questions was prioritized by first panelists, then victims, and lastly the community. If victims were not satisfied with family or village (restorative) justice, they could return to the courts to gain (retributive) justice. Designed to complement the formal judicial system, the CAVR’s reconciliation component was tasked only with ‘lesser’ crimes, though it could refer evidence to the Office of the Prosecutor General. Figure 4.7 depicts a nahe biti boot ceremony within the CAVR reconciliation process, where respect for human rights is factored in to the ritual. At the end of the CAVR reconciliation process, an accord of reconciliation was signed and registered with the courts, ending the process of liability. Figure 4.7

Nahe Biti Boot Ceremony

The title states “Apa Itu Proses Rekonsiliasi Komunitas?” in Bahasa Indonesian, or “What is the Reconciliation Process?” Source: CAVR pamphlet (photographed by the author).

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Approximately 40,000 villagers took part in the reconciliation process that operated from August 2002 until March 2004 and an internal CAVR review reported that 90 percent of the victims and perpetrators saw the mediation as a positive experience. Numerous refugees returned from across the West Timor border, sometimes offering confessions about personal involvement in the 1999 violence before being welcomed back or turned over to legal authorities in serious cases.92 Based on preliminary interviews and studies of the CAVR itself, the reconciliation process appeared to be popular and cathartic rather than stimulating psychological trauma, as the case-load far surpassed initial expectations.93 During its work, the CAVR collected 7,669 statements for the truth seeking aspect, plus 91 more statements from persons in West Timor, conducted more than 1,000 interviews, held 52 sub-district victims’ hearings and eight national public hearings, carried out data collection and statistical analysis to establish conflict-related mortality, and 1,379 deponents completed 216 Community Reconciliation Procedure (CRP) hearings.94 At its completion, the CAVR estimated another 3,000 persons wished to engage in the community reconciliation program.95 The CAVR’s more than two thousand page final report entitled “Chega!” (‘Stop! No More! Enough!’ in Portuguese) was delivered to the government on 31 October 2005. The report provided extensive documentation of the crimes perpetrated primarily by Indonesian security forces assisted by Timorese auxiliaries, particularly unlawful killings and forced disappearances, forced displacement and consequent famine, detention, torture, and illtreatment, sexual violence, war crimes, and other human rights violations. Specifically, the report declared the 1975 invasion illegal, and meticulously catalogued crimes against humanity, including mass executions and massacres, and found commanders and personnel of the Indonesian military responsible for violations of the laws of war during the occupation, while also identifying the Indonesian police, military and Timorese militias as perpetrators of the 1999 violence. The report also identified the detrimental effects of Portugal’s colonial occupation and delinquent de-colonization, as well as the international complicity in tolerating Indonesia’s invasion and supporting its falsehoods regarding the need for suppression. Smaller scale atrocities committed by Timorese political parties, including the new FRETILIN government, primarily during the 1975-1976 period of civil war received attention as well. The CAVR was not without its detractors. By adding prointegration elements to the truth commission itself, particularly among

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the regional commissioners, the CAVR risked the inclusion of members who themselves reportedly committed human rights abuses. Interviews with grassroots community organizers (in this case parishioners at the Baucau Diocese) expressed concern that pro-integration elements were included as commissioners and saw the process as somewhat political, lamenting that only ‘small people’ had participated in the reconciliation process.96 Manuela Perreira felt that the mandate of the CAVR was good, but that the overall length of the reconciliation project should have been longer to be effective and questioned the methods by which inexperienced researchers collected grassroots data.97 In the end, overall domestic support was strong; according to UNMISET Human Rights Officer and CAVR adviser Patrick Walsh, the public appreciated that the commission included this broader time period and was supportive of the reconciliation process more so than the trials of the Serious Crimes Unit.98 Regional commissioner Carolina M.E. do Rosario echoed these sentiments, explaining that many of those who testified were victims of sexual crimes, beatings, and had lost family members, but still actively participated in the process, and stated “people can understand this process better than the Serious Crimes.”99 One Timorese university professor believed that apologies were important and felt that the CAVR was good because it was grassroots focused, though he also considered good relations with Australia and Indonesia to be vital.100 Many Timorese were pragmatic about the choice between impunity and accountability; the aforementioned parishioners expressed that forgiveness was occurring and that the victim, perpetrator, and community needed to reconcile and be accepted back into society. Interestingly, these young men ultimately felt that the process was good and desired to see the CAVR continue on an openended basis, even though they did not want to participate and tell their own story. Numerous men, particularly ex-soldiers, expressed support for the reconciliation process, but repeatedly stated that it was unnecessary for they themselves to participate, demonstrating a not surprising gender schism regarding the need to share personal pain. Nevertheless, the general goodwill felt by so many constituents toward the CAVR emboldened the Timorese government to reach out to Indonesia for a further process designed to curtail legal accountability and to promote peaceful bilateral relations. The Joint East Timor-Indonesia Commission for Truth and Friendship From the beginning, the purpose of the CTF was to put to rest further prosecutions, particularly the threat of an international tribunal. The ramifications of the joint East Timor-Indonesia truth commission were

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apparent when Indonesian Foreign Minister Hassan Wirayudha stated, “I cannot imagine that a Commission of Experts would be tasked to review the entire process of handling the gross human rights cases if it was not supported by Indonesia and East Timor.”101 The CTF is evaluated below according to its two primary aspects, the hearings and the final report; major criticism was leveled toward the hearings process, though the final report was much more even-handed. Although the commission could not prosecute or order anyone to testify, it could recommend amnesties. Due to the CTF’s initial promise to offer amnesties, the United Nations boycotted the process; invited witnesses like UNAMET head Ian Martin and chief prosecutor Siri Frigaard declined to attend. Secretary General Ban Ki Moon explained that “the organization cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them.”102 Thus, testimonies came primarily from Indonesian military personnel, militia leaders, and public officials, including former President Habibie, as well as some victims. Victims had far fewer opportunities to speak than did the accused, only ten testified in the five Indonesian hearings and with a commission divided between Indonesians and Timorese, victims felt unprotected in the adversarial process, while the accused seemed empowered since they were not confronted by contradictory evidence.103 The 56 witnesses heard in public sessions included 28 persons from the Indonesian security apparatus and their militias (13 TNI personnel, three members of the Indonesian Police, and 12 former militia members), many of whom were accused of crimes in East Timor, including one under indictment for crimes against humanity. In contrast, the commission heard only 14 victims or direct witnesses from the Timorese community and three witnesses from human rights or electoral monitoring groups. The focus on perpetrators and senior officials also created a gender imbalance among witnesses, thus only five of the 56 public witnesses were women.104 The impartiality of the Indonesian commissioners also became an issue, as they seemed to question whether any human rights violations had even occurred. One commissioner was unable to understand why forcing a Timorese to sing the national anthem (Indonesian Raya) in order to receive food was wrong, since they were citizens of Indonesia. A de facto division of labor saw Timorese commissioners question military, police, militia, and Indonesian government officials, while compliant Indonesian commissioners tended to reaffirm the witnesses’ prepared statements. Conversely, the Indonesian commissioners questioned NGO representatives and victims, or at least victims of pro-autonomy crimes,

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with skepticism or hostility, while the Timorese commissioners barely challenged them.105 Not only did the mostly Indonesian generals and civilian leaders fail to tell the truth in many circumstances, they attempted to shift blame beyond the Jakarta trials characterization of a civil war to the United Nations itself, which was made an easy scapegoat since international organizations like the IMF had a poor reputation in Indonesia due to the strict structural adjustment policies applied following the 1997 Asian financial crisis. While Wiranto adopted the standard civil war line, Timbul Silaen argued that the United Nations allowed the rioting to happen, General Kiki Syahnakri suggested that the United Nations conspired to sway the vote toward independence and “was not interested in a fair and impartial vote,” and Major General Zacky Anwar Makarim asserted that “UNAMET, which was not neutral, triggered the unrest.”106 President Habibie even blamed Kofi Annan for the rioting due to his allegedly announcing the referendum results three days early, on 4 September instead of 7 September. Convicted militia leader Eurico Guterres did apologize, though not to his Timorese victims, but rather to Indonesia for tarnishing its image, stating “we extend our apologies from the deepest depths of our heart to the Indonesian nation.”107 Megan Hirst summarized the common refrain: UNAMET was institutionally biased in favor of pro-independence groups and perpetrated widespread electoral fraud that successfully influenced the outcome of the popular consultation. By moving the pre-arranged announcement date three days earlier, Indonesian forces did not have time to react to the spontaneous anger unleashed by hearing the outcome, resulting in conflict between various Timorese groups with a culture and history of violence dating back to Portuguese times. Indonesian security forces did not foment the violence, but rather tried their best under difficult circumstances to stop it. Fearing attack from pro-independence groups, refugees fled spontaneously and voluntarily to West Timor with the assistance of Indonesian forces, even burning their own homes so that others would not occupy them. A few voices dissented from this formulation, several Timorese militia leaders such as Alfa militia member Joni Marques and Aitarak (Thorn) Commander Mateus Carvalho blamed the Indonesian government and prominent Timorese like President Gusmão and Bishop Belo testified in Dili. The growing public hostility in East Timor toward the CTF was moderated somewhat by the release of a more balanced final report. The 350 page long CTF final report Per Memoriam Ad Spem (“Through Memory to Hope”) was based on public hearings, submissions, research, and document reviews and was submitted in July 2008 to the presidents

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of Indonesia and East Timor, made public in August 2008, and formally presented to the Timorese Parliament on 9 October.108 Despite a great deal of skepticism toward the CTF hearings process, the report criticized the Sishankamrata system that allowed paramilitary groups composed of civilians to act as legal auxiliaries to the military and assigned institutional responsibility to pro-autonomy militia, the TNI, the Indonesian civilian government, and POLRI for committing gross human rights violations including murder, rape and other forms of sexual violence, torture, illegal detention, and forcible transfer and deportation. The report also identified the October 1998 plan to form militia groups and enact violence and chastised General Wiranto for not knowing the conduct of the military’s planning. In taking account of the various testimonies, the report also accepted the possibility of limited crimes like detention by pro-independence forces. The commission decided in the end not to recommend amnesties, but did offer suggestions to promote peace and reconciliation, offer apologies, build human rights programs, and establish a visa-free zone on the border, among other prescriptions. In turn, President Yudhoyono expressed ‘deep remorse,’ though critics argued that a direct apology was needed. As Indonesian Foreign Minister Hassan Wirayuda stated definitively, “the case is closed” and no further prosecutions will result.109 Timorese Prime Minister Gusmão was satisfied with the report, and added that “Now, in our country instead of crying everyday, we have to make policies, instead of crying, instead of saying we are victims…sometimes in our lives we have to look at the priorities. The priority now is to better the standard of lives of our people.”110 After expressing that it would be unfair to continually ask each Indonesian president to apologize, he targeted the human rights groups calling for an international tribunal: “For us it is (closed). If you want to open it, do it yourself.”111 Relevance: Language, Culture, and Process This section examines whether the proceedings were understandable and the degree to which the local culture was addressed. Cultural factors affect the success or failure of transitional justice, particularly the use of the local language(s) and indigenous customs where appropriate. Cultural issues arise by the nature of the institutions themselves and the manner in which each process is conducted, while linguistic differences pose challenges during oral hearings and discussions, in documents, and in personnel decisions. The court’s formality, slow deliberations regarding arcane rules, emphasis on the written process (filing wordy indictments), and lengthy appeals process further marginalized its

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acceptance. Even the notion of reparations, which may be an outcome of either process and could have mitigated the ever present frustrations, becomes culturally defined, with a distinction between an individual judgment of damages versus social investment in community or national projects. Truth and reconciliation commissions are more acceptable to nearly everyone, allowing for more complex personal narratives and subtle distinctions among individual choices and behavior. Truth and reconciliation commissions adopt a longer historical period, may incorporate indigenous cultural practices and employ a communal formula, and enjoy broad support from the local audience and its constituents. Nevertheless, political leaders often prefer state-managed courts that are more easily manipulated, accepting the less punitive truth and reconciliation commission as a secondary option and strictly opposing international forms of justice. Since independence, language has become perhaps the most contentious issue in Timorese society, itself an oral culture with no written language, though strong efforts are being made to transliterate the spoken word. Tétun is an indigenous language among numerous other regional languages and dialects, the most commonly spoken tongue, and widely regarded as the most authentic lingua franca across the country.112 Along with Portuguese, Tétun is also the official national language. English and Indonesian are working languages, the latter spoken by about half the population while less than five percent speak Portuguese or English. The Serious Crimes Unit’s choice to place English in the central role in the courtroom essentially skewed the hybrid balance toward internationals over the local populace, legal mentors rarely learned Tétun, transcriptions were done in English and then translated, and indictments often were read to a defendant in a language that the accused did not understand.113 Sometimes, a signed witness statement from the field was written in Tétun by a foreign interviewer, but when the witness testified in court, it was revealed that the witness spoke another indigenous language such as Mambae (many words are shared in both languages, complicating the identification of a respondent’s native tongue), undermining the veracity of the testimony.114 In one such case, the Timorese judge grew increasingly exasperated with the inability of a witness to answer the questions clearly and directly until after half an hour she realized that the witness spoke Mambae and only minimal Tétun. The court compound was searched for a Mambae speaker, when the trial resumed, the defense quickly contested that the signed witness statement from the field interview was written in Tétun, but that the witness did not understand the language. In

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viewing the document at the bench, the witness could not recall if this was his statement, expressing in a matter of fact tone: ‘I can’t remember because I am not educated.’ The court resumed with the new temporary Mambae ‘interpreter’ and the slow translation cycle began from English to Tétun to Mambae and back again.115 In a lighter moment, a 27 year old witness affirmed to the Timorese judge that she was able to speak Tétun or Mambae; therefore, the Timorese judge replied that she and the court will use Tétun and English. Fearing that the judge would address her in both languages, the witness responded that ‘Tétun is ok, but not English.’ The amused judge explained to her that English was for the translation and good-natured laughter filled the courtroom. The apparent cultural dissonance associated with the judicial system was not as stark when evaluating the truth and reconciliation commission. The justice system basically failed to even try to be relevant, while the truth commission garnered greater social and cultural legitimacy and became more acceptable to local sensibilities. Indeed several of the CAVR’s international staff spoke fluent Tétun and the CAVR’s emphasis on a verbal process using Tétun for primary discourse and Indonesian, English, and Portuguese as supplemental languages made the reconciliation process much more relevant and understandable. The CAVR report Chega was distributed in Indonesian (the base language for the report, though each version uses the Portuguese Chega as the title), English, Portuguese, and partially in Tétun, limited only by the lack of vocabulary for the sometimes complex terminology. Of course, the Jakarta trials employed Bahasa Indonesian and Timorese who were not completely fluent were ridiculed at both Indonesian processes for their accents or verbal miscues. The CTF adopted English, Indonesian, and Tétun as official languages, but the CTF hearings were conducted primarily in Indonesian; interpretation was provided for Timorese witnesses who spoke in Tétun and simultaneous translation into English was provided for the audience. The CTF final report was not translated into Tétun and its detailed appendices were distributed in English only. Oddly, the title of the report (Per Memoriam Ad Spem) adopted the dead European language of Latin, despite the sharing of many words between Malay and various Timorese tongues. One cannot help but wonder if a more appropriate title would have been Spes contra Spem, ‘to hope against hope’ for justice. While language affected the relevance of each institution, the treatment of witnesses was another way that these processes impacted individuals. Witnesses are often the observers of horrific atrocities who may be equally traumatized and risk threat or backlash by their decision

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to come forward, yet eyewitness observers are a functional necessity in courtrooms and public hearings to establish facts. The encounter with foreign personnel can prove problematic and historic deference to malae administrators remained ever-present. The courtroom exercise, with malae in authority using foreign concepts and trivial procedures, likely appeared to be a wholly alien contrivance for the indigenous population and eroded community support through its cultural irrelevance. Customarily, village elders or the chefe do suco (village chief) conduct their own investigation and usually speak to victim, offender, and witnesses, establish the facts, and decide the outcome. Thus, their testimony often was a collective narrative developed by discussion throughout the village. The elder himself may not necessarily have witnessed the crime, yet may speak as if he had personally observed the alleged crime. Although their story is unassailable in the parish, when village elders testified in the courtroom, their version of events was strictly parsed.116 Unfortunately, the courtroom procedure can cause further psychological torment to witnesses, unprepared for the court’s formality and apprehensive of counsel’s narrowly tailored and scrutinizing questions. In effect, witnesses are not always allowed the cathartic experience of recounting in full their recollection of events, but are often static beings limited to binary ‘yes or no’ responses to leading questions designed to assist the thesis of the prosecution or defense. Many such witnesses would express frustration at telling their story so many times to so many people, yet never attaining accountability. Recalling the intimidating acts of militias, one witness stated during the Mendonça trial: “These are my words I wanted to say in court. I’m looking for justice.”117 At the same trial, another ex-FALINTIL soldier said “to follow the reconciliation we accept; but we want justice.”118 One middle-aged male witness became increasingly incensed to a line of questions from the female public defender and angrily retorted that he was the victim, that he had simply come to tell his daughter’s story, and questioned why he was being attacked. Judith Ribeiro, a staffer at the women’s NGO Fokupers aggregated much of the attitude, stating: “victims often complain and tell their stories, but receive no justice or fairness.”119 Authority is still sacred and powerful in East Timor, whether the fear of god, king, or magisterial presence. In the words of the CTF final report, “the only absolute truth is one that belongs to God.”120 Intimidated, un-coached, and respectful of the judge, who often ask direct inquisitorial questions in the civil law system, witnesses appeared eminently truthful and revealing during trials, though they often peered

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downward and dared not look directly at their questioner, a sign of dishonesty in the West. Witnesses always seemed to answer forthrightly, often to the detriment of the person for whom they had been called to testify. In one case, a full-blood brother testified for an hour against his own sibling, until the elusive fact that they had different last names was discovered. Both witness and accused looked very disturbed and agitated; when informed by the judge that he was not obliged to testify against his brother, the witness quietly uttered ‘I want to stop here,’ appearing quite relieved after he was allowed to cease his revelations. The testimony was partially stricken because a witness is not required to testify against one’s own immediate family; the judge declared that the testimony was already evidence, though may be weighed differently.121 In response, the court began to more strictly scrutinize witnesses as to their family relationship and status. Personal animosity between various judicial officials exacerbated the procedures and could sometimes hinder the smooth flow of ordinary functions and along with cultural difficulties created an enormously complex dynamic. Cultural misunderstandings over fundamental facts often contributed to hostile exchanges between lawyers (particularly public defenders) and witnesses. Time, distance, and dates are essential functional knowledge in modern capitalist societies, but largely irrelevant to the subsistence agricultural lives of most Timorese, especially the majority living in the mountains. Witnesses had great difficulty in explaining the exact distance from which they saw a crime, usually referring to village landmarks but unable to identify meters. Remembering the date and time of day for when a crime occurred was essentially impossible, farmers did not use calendars or wrist-watches to know the harvest season or the daily routine of chores. Surely distress also played a role regarding the inability to identify how many people were involved. In some cases, the identity of an individual physically in the courtroom could be problematic. In Timor, children are given an indigenous name, then a new ‘Christian’ name upon baptism, though both names may continue to be used by various family members or villagers. This caused great confusion in one particular case about the exact identity of the accused when witnesses repeatedly referred to the alleged perpetrator by a different name: ‘Maubele’ (mau means male, a relatively common birth name) versus ‘Mendonça.’ After hours of puzzlement, an interpreter explained this Timorese tradition to the court. The disconnection between the collective village story and the individual eyewitness account was a chasm and exemplified much of the cultural gap that undermines the surface level process.

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The relationship between gender, family, and public hearings was also complex, since one had to navigate the boundaries of traditional cultural views and Western women’s rights standards. Domestic violence is widespread across East Timor and sexual crimes were commonplace during the 1975-1976 and 1999 violence. If a woman made a charge, police, who are overwhelmingly male, became the gatekeepers of the process and often attempted to mediate the dispute themselves or transfer the complaint to a traditional mediation where 80-90 percent of the cases were resolved, unsatisfactorily in terms of women’s rights standards according to Western human rights workers. Marriages that ended in divorce are shameful and to publicly defame a family in court is dishonorable. This phenomenon echoes other observations in postconflict societies; as Susan McKay suggested, “reconstruction processes privilege patriarchal institutions and processes,” asserting that courts in particular tend toward a male bias.122 Moreover, courts and women’s rights groups came to be seen as pro-divorce. The United Nations and the East Timor government jointly distributed pamphlets to remind women of the range of options they possess in cases of domestic violence, such as the church, work, the family, police, hospital, courts, and school (see Figure 4.8). Figure 4.8

Anti–Domestic Violence Pamphlet

The main caption reads in Tétun “Violensia Domestika Krime ida Ita hotu tenki selu” or “Domestic violence is a crime. Everyone [who commits domestic violence] needs to pay.” The top left caption reads “Violensia katak bele kura,” or “Violence can be cured.” Source: UN Population Fund and East Timor Government’s Cabinet to Promote Equality.

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Therefore, village elders sometimes limited or prevented community members from taking their claims to court, using instead customary justice to achieve harmony. Moreover, female victims were less likely to achieve accountability under a traditional (sometimes) patriarchal justice system that lacked the same conception of women’s rights as has developed in the West; Traditional practices may not sufficiently satisfy actual victims and could cause further alienation; in cases of sexual violence, village elders, who are also overwhelmingly male, may in some cases pressure rape victims to marry the perpetrator.123 Courts can cancel the outcomes of traditional justice, citing a lack of fairness and possible violations of the constitution and international human rights standards, particularly women’s rights. Yet pushing too forcefully for victims and perpetrators to utilize the CAVR or Special Panels for Serious Crimes could have upset a tenuous peace in the village or even within a family. Families and villages are nearly synonymous and must survive long after international involvement has passed, though conflicts that involved residents of disparate villages where different languages were spoken, idiosyncratic rituals were practiced, and familial bonds were non-existent were not easily settled and posed challenges for even the CAVR. If a foreign interviewer in the field or a court official asked a victim what happened, and inquired in a somewhat leading question, ‘were you raped?’ a deponent tended to answer what one expected the malae wanted to hear. Inconsistencies abounded, often between responses to investigative questions in the field soon after the 1999 events and testimonies later given in the courtroom. After recounting the events to so many persons, ordinary people often complained that they had frequently told their story, but that the accused remained free. Victims found it challenging to develop a trusting relationship with outsiders to express their personal story, partially due to the high turnover rate among international personnel. Women in particular were unwilling to open up to international staff to discuss rape and sexual violence, and even found it difficult to confide in local women’s organizations like Fokupers.124 Some accommodation for the sensitivity of sexual violence can be found in maintaining gender equity among staff. The CAVR sought to balance its composition; ten of the 28 CAVR regional commissioners were female, while two of the seven national commissioners were women. Only one of the ten CTF commissioners was female, none of the five from Indonesia. The justices of the Indonesian trials were also all men. While two of the three Timorese judges were women, only one of the 11 international judges was female. Females were represented

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more equitably among the prosecutors and defenders, but were still a minority. In one trial, a female Timorese witness told how the ablai militia near Atambua threatened ‘to chop them up like mangoes,’ how she feared for her six children, and how at night the men might sleep with the women ‘real hot.’ In a show of sympathy to the context, the Malaysian female prosecutor ably slipped into the closely related Indonesian language to ask further questions. Bahasa Indonesian is a basic Malay language developed by traders in maritime Southeast Asia, thus Malaysians and Indonesians can understand each other generally, and of course many Timorese speak Indonesian. The importance of cultural, gender, and linguistic awareness is exhibited in this single momentary act, and could provide a more lasting appreciation among trial participants if included in preparatory training. In this circumstance, the prosecutor’s further questions did not suggest rapes; the witness explained that the women cooked some chicken ‘to cool them off’ and gave the men some beer. The treatment and punishment of perpetrators speaks to standards of justice and varies to a high degree based on the nature of the process chosen. Prisons are a core institution of the Western model to (arguably) correct, deter, punish, or rehabilitate criminals. Prisons and legal accountability in developing countries rarely match either of the two postconflict motivations of justice and reconciliation and thus have left doubts about the real support for war crimes trials. Using incomprehensible legal concepts, increasing the budget for domestic security, imprisoning former militia leaders and other lower level perpetrators in poorly maintained facilities did not fit the Timorese idea of justice where crimes of this nature would usually be remedied by a roughly proportional reciprocation. If homes were burned, the perpetrator must rebuild them. If livestock was stolen, they must be replaced. A more serious crime might lead to a ‘debt’ being worked off in a neighbor’s fields over the course of years. Removing a potentially productive member of society from a small community or village dependent on limited manpower can upset its harmony and capability. In a poor society, imprisoning able-bodied young men risks the viability of a harvest and could threaten starvation. Proponents argue that punishing a perpetrator by requiring repayment of one’s social debt by performing a service to the community or the victim does more to satisfy the overall needs of the village that was harmed. In the ICTJ study, few called for violent retribution and instead favored imprisonment, though many felt that perpetrators should also be made to work. One female respondent from Manatuto stated, “It would be better if they were sent to Natarbora to

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plant rice and the produce would be given to us.”125 Even Xanana Gusmão complained that prisons do not fit Timorese justice and that society would be better served by putting perpetrators to work in such a manner. This more collective notion of justice focuses on the stability of the village and a realization of the context whereby some collaborate and others resist. Maintaining adequate conditions and security at a prison was also costly; although prisons and detention centers in Becora (Dili), Gleno (Ermera) and Baucau were operational by mid-2001, a 2002 prison breakout and the Reinado escape illustrated the weak oversight of the facilities. Reparations, or some form of financial settlement, are another method to compensate for past abuses and help build a foundation for a prosperous future. The CTF recommended measures to “heal the wounds of the past, to rehabilitate and restore human dignity” and called on leaders to express apologies. The CAVR final report recommended a variety of support mechanisms, including scholarships for single mothers and their children; aid for the disabled, widows, and survivors of sexual violence and torture; and memorialization through art and education. It also made a variety of conciliatory recommendations to improve relations with Indonesia and within the Timorese political community. The CAVR only made a minimal attempt to prepare care and services to protect individuals from long-term psychological risks. In fact, social rehabilitation programs on a small-scale were erected informally and by NGO groups. Very few financial rewards were granted; 712 people received $200 emergency grants for care and support from the CAVR’s Urgent Reparation Program and the trials declined to institute punitive damages.126 Therapeutic resources for victims, their families, and former combatants harkens back to the larger peacebuilding measures and the need for true rehabilitation. Building Capacity

Aside from seeking accountability, building to prepare for future challenges is another standard upon which to judge performances. International practitioners were quite keen to enshrine constitutionalist principles of governance, but the lesson of the transition was that politics trumps principle. The local courts have already begun to resort to corrupt or nepotistic judgments, since in fact little transfer of skills or knowledge occurred. A major purpose of hybrid mechanisms is to establish a foundation for the rule of law and judicial reform, yet one public defender argued regarding the international community, “they should just build a regular justice system; this [the hybrid court] will not

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provide a historical record.”127 Moreover, the excessive preoccupation with legalistic formulas undercut customary justice, the most prevalent local institution of governance. The judicial system in East Timor was not fully functioning and was hampered by the withdrawal of Indonesian civil servants; its four newly formed district courts (Baucau, Dili, Oecusse, and Suai) presided over ordinary crimes and would have been incapable of handling the entire justice process in the throes of reconstruction. Judges, prosecutors, and public defenders in the domestic courts lacked training and professionalism; none had worked as a judge, only one had been a prosecutor, and few had law degrees.128 When choosing judicial officials for the district courts, the most talented applicants became judges, while the next most talented became prosecutors, and the least talented became public defenders. Observers and mentors claimed that judges of the local district courts made arbitrary decisions not grounded in the constitution or statutes, did not abide by basic professional legal standards, and that most of the district courts outside the capital did not function. In practice, one international mentor for the local courts said, “Judges don’t know the law; they haven’t even read the constitution. They make arbitrary decisions not based in law, and are unqualified.”129 The United Nations did not plan to build local capacity until a training program was initiated in 2002 with support from the Norwegian government, though the program was short-lived and few participated, almost none for the defense. According to a 2003 UN report, international advisers’ reluctance to learn local languages contributed to the poor rate of skill transfer from internationals to nationals.130 The entire staff appointed to the Serious Crimes Unit was international except for the interpreters, and since the Serious Crimes Unit and the Ordinary Crimes Unit (OCU) were not located together, the two groups had very little mutual contact. In a January 2005 international review of East Timor’s domestic jurists from both the Special Panels and the ordinary courts, all 22 failed the qualifying exams, perhaps due to difficulties learning Portuguese, and were replaced by four international judges (later upped to six), exemplifying the underlying strain between international expectations and local capabilities.131 Nothing better illustrates the contention of anthropologist Sally Merry that the international community who helped to engineer sovereignty put into place legal and governmental institutions that depended on foreigners to run them.132 When the under-prepared Timorese jurists could not adopt the foreign model, they were suspended indefinitely and summarily replaced by those who could operate the imported system.

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With the closure of the hybrid court, the responsibility to prosecute serious crimes was returned to Timor’s newfound judiciary. In April 2005, UN Security Council Resolution 1599 called on the UN Secretariat to preserve a copy of all SCU records. The Serious Crimes Unit did collect, analyze, and store evidence, leaving the potential for future prosecutions; however, government offices holding these records were ransacked during violence in May 2006 and looters stole 138 computers containing registry files and forensic evidence against Indonesian soldiers and others.133 The CAVR offices were also broken into in early June 2006, though no apparent damage was sustained. Moreover, eruptions of political violence, including an attempt to kidnap the president, continued to mar progress. On 7 March 2007, a new panel of two international judges and one Timorese sentenced Interior Minister Rogerio Lobato to seven and a half years in prison for arming hit squads to eliminate government opponents, specifically misappropriating firearms for unlawful use and manslaughter from arming civilians to kill government opponents, prosecuted by a Portuguese attorney and defended by another from Cape Verde, with testimony in Portuguese and Tétun translation. The question of accountability would again arise for Lobato, who lacks the charisma and sensibility of his brother the heralded resistance hero and had formerly been arrested for diamond smuggling in Angola and had spent time with the Khmer Rouge in Cambodia. He was allowed to depart Timor for Malaysia seeking medical treatment and was pardoned by President Ramos Horta in 2008, along with nine former militia members convicted of crimes against humanity, including Joni Marques who had been sentenced to 33 years. This act of clemency either represented the inability to inculcate the value of accountability or the continued reliance on peace and stability and even reconciliation among Timorese political leaders. Ironically, the United Nations was almost more vociferous in calling for accountability for the April and May 2006 violence. The 2006 United Nations Special Commission of Inquiry report recommended prosecution of more than 60 individuals and investigations of 60 more, and UNMIT’s continuing resolutions 1745 (2007), 1802 (2008), and 1867 (2009) continued to reaffirm such a need. Further demonstrating the fits and starts of the transitional justice process, in 2007, UNMIT sought to assist the Office of the Prosecutor General in resuming the investigative functions of the former Serious Crimes Unit, the aim being to complete investigations into the serious human rights violations of 1999. Although the serious crimes investigations were reopened under UNMIT authority in February 2008,

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the United Nations recognized that it was not feasible to restart the prosecutorial component and the new investigating team does not have the power to instigate prosecutions. Thus, the serious crimes process was essentially restarted after a three year hiatus, though only to support investigations by the disinterested Timorese government; meanwhile the courts still face a backlog of 5,000 defendants. Whereas the Timorese government was reluctant to press ahead with further trials, support for indigenous approaches grew. CAVR national commissioner Jacinto Alves viewed the commission as an opportunity to move forward while recognizing the role of history in stating “The tears shed over the past can enter the fountain to create a new well of life.”134 After the relative success of the CAVR, President/Prime Minister Gusmão began to support traditional methods of dispute resolution. In 2007, he initiated a Commission of Dialogue for Community Reintegration (Komisaun Diálogu ba Reintegrasaun Komunitária in Tétun) using adat, hamulak (a traditional prayer to one’s ancestors for guidance and to facilitate the return of all lulik power back to the proper uma lulik), community meetings, and dialogue. He also authorized a post-CAVR Technical Secretariat (PCTS) to complete the outstanding technical work of the CAVR, to disseminate the report, and to care for the archives and heritage site. Gusmão also expressed his preference for restorative rather than punitive justice at the United Nations, finding the latter impracticable, tedious, and counterproductive to bilateral and multilateral relations.135 Despite setbacks in Indonesia, slight progress toward demokrasi, reformasi, and even accountability offered hope: active generals and military officials were actually tried in a civil court for the first time, a new human rights division in the attorney general’s office was formed, and judges began to be given international law training. Despite the light sentences of the Jakarta trials, two active-duty TNI generals were convicted for crimes committed in the course of their official duties by a civilian court for the first time in Indonesian history. In 2004, Indonesia’s Komisi Nasional Hak Asasi Manusia (National Commission on Human Rights, Komnas HAM) identified five major cases of abuse to focus upon: the 1965 detention of the Communist Party (PKI) on Buru island, the wanton killing of Petrus criminals in the early 1980s, the Tanjung Priok massacre of Muslim activists in 1984, the imposition of a military operations region (DOM) in Aceh from 1989-1998, and the 27 July 1996 attack on the Democratic Party’s (PDI) headquarters.136 Although the list was narrow and avoided secessionist movements in West Papua and other infamous actions such as the full events of the 1965-1966 putsch (which led to an estimated one million deaths and

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more than 500,000 arrests of suspected communists), these investigations signaled a beginning of accountability in policymaking. In fact, President Wahid ultimately removed General Wiranto from his position following the violence in Timor. As a result, decision-makers desperately want to avoid accusations and indictment; these negative reinforcements may serve to deter future excesses by military and political leaders.137 Indeed, media and NGO observers reported that the performance of prosecutors and judges in the Tanjung Priok cases was much improved since the East Timor trials.138 Conclusion: Was Justice and Reconciliation Achieved?

Regarding justice as a standard of fairness and legal accountability and reconciliation as a non-violent social reintegration, this chapter applied several criteria to evaluate transitional justice mechanisms, including whether mechanisms were deployed where needed, an inclusive time period that encompassed the broad context for the violence was adopted, ample resources were provided to actualize the project, all perpetrators were held accountable, and whether the process and its results were deemed acceptable and understandable to the local population and contributed to capacity-building. Domestic political calculations, Indonesian obstinance, and the cultural gap between subject states and Western practitioners hampered implementation. The use of a plethora of mechanisms was debated owing to the uncertainty over how to proceed: Indonesia’s domestic court system, East Timor’s traditional mediation, an independent East Timor truth and reconciliation commission, a joint East Timor-Indonesia truth and friendship commission, a hybrid tribunal, and an international tribunal. The international community could have taken the invasive step to create an international tribunal with commensurate resources, infrastructure, and capabilities to indict, apprehend, prosecute, and punish. Instead, potential supporters of transitional justice acquiesced to the arguments and lobbying of Indonesia wishing to protect its sovereignty, the national interests of key UN Security Council members, and the desire of others to be frugal following expensive attempts at justice with little success in Rwanda and Yugoslavia. International pressure on Indonesia to extradite suspects was not forthcoming, and ultimately spelled the downfall of accountability, two-thirds of those indicted by the hybrid tribunal remain at large in Indonesia, including all the major military and political decision-makers. Despite significant domestic support for a range of transitional justice options, attempts at justice and reconciliation in East Timor and Indonesia were half-hearted

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and ultimately failed to meet the criteria above. Robust trials of any sort failed to materialize absent international sponsorship and the unsuitable formality and cultural limitations of the justice process in East Timor belied the hopefulness of both international tribunals and the hybrid or mixed model. At the individual level, the words ‘justice’ and ‘accountability’ rang most hollow; victims did not celebrate the increasing application of transitional justice mechanisms on a global scale but mourned the failure of implementation at the local level. A penultimate standard of justice is whether those most responsible were held accountable, or participated in some truth-telling or reconciliatory process, whether voluntarily or against their will. The major decision-makers who orchestrated the plan are first in line: the Indonesian politicians and generals in charge of the invasion, occupation, and withdrawal policies. President Suharto and key military commanders like Major Generals Makarim and Damiri and Lieutenant Generals Benny Murdani and Ali Murtopo were major instigators of the 1970s violence, though the latter two had passed from the scene by 1999. None spent a day in prison, though Damiri was arrested, tried, and convicted at the Jakarta trials for his role in 1999 as regional commander of the military region of which East Timor was a part. Along with Makarim and Damiri, General Wiranto, Colonel Suhartono Suratman, and Regional Police Chief Timbul Silaen were indicted by the Serious Crimes Unit for authority over the 1999 violence. Four of the highest-ranking members of the Indonesian Armed Forces: Wiranto, Lieutenant General Johny Lumintang, Makarim, and Major General H.R. Garnadi were named in the KPP-HAM report; though none were indicted. Despite an amnesty provision in the CTF terms of reference and with little incentive to participate since tribunals were not forthcoming, ex-Foreign Minister Ali Alatas, B.J. Habibie, Eurico Guterres, Makarim, Damiri, Nuer Muis, Timbul Silean, and Wiranto provided testimony, however partial. Of course, the CAVR final report addressed nearly all of these perpetrator’s activities, though Indonesians did not participate in the public hearings or reconciliation sessions. Thus, the primary civilian and military planners faced only limited legal jeopardy; a few reluctantly engaged in a truth-seeking process and largely offered dubious narratives that obscured the facts and were only exposed in the documentation of the TRC reports. A secondary standard of justice is whether those lower and midlevel perpetrators that actually physically committed the crimes are held accountable or chose to reconcile. Debate as to whether militia acted independently, in concert with Indonesian forces, or under their approving gaze continued to haunt justice. While the Jakarta trials

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rightly focused on key decision-makers, it thus fell to the hybrid court in Timor to pursue accountability for junior Indonesian soldiers and civilians and prominent Timorese militia leaders. Despite countless indictments, Indonesia refused to extradite any perpetrators for trial and they were generally not included in the truth and reconciliation processes. In fact, some indicted militia members remain in West Timor and other perpetrators escaped indictment for the majority of the 1999 murders and no one faced justice for any pre-1999 violence. The Timorese militias and other collaborators, often acting under the guidance of Indonesia’s special forces, make up another gradient of perpetrator. Numerous ordinary, mid-level militia members were tried and convicted in the courts and many low-level members achieved a form of reintegration at the village level through the CAVR. In relative terms, few low-level perpetrators were prosecuted; only 87 were tried by the Special Panels. In many cases, such as those involving pre-1999 crimes and crimes other than murder, investigations have not even begun. The most important militia leaders like João Tavares and Eurico Guterres largely escaped justice, though the latter appeared in some form in almost every process and briefly faced prison time. In seeking to uphold the standard that justice is blind, transitional justice may opt to seek accountability for those in the victimized community that nevertheless committed their own crimes, whether in self-defense, retaliation, or in cold blood. Accountability for resistance fighters was generally not forthcoming, as the victors of 1999 were insulated by the upsurge in popularity for FRETILIN and the relatively minor abuses compared to those of Indonesia and pro-Indonesia forces. During the civil war, FRETILIN committed several mass killings of UDT and APODETI political elite, and later, after Indonesia adopted its notorious transmigrasi policy, FRETILIN sometimes forced these new migrants to join or aid their movement, or wiped out these new village residents in response. Again, the CAVR explored these atrocities; the courts sidestepped all such cases owing to the prerogatives of national interests. A further category of responsibility may be ascribed to the patrons that fund or influence state practices and priorities which may lead directly or indirectly to human rights abuses. Despite literary trials of Henry Kissinger, the only form of accountability that U.S. patrons faced for its Cold War support of Suharto’s New Order regime and its many atrocities throughout the archipelago was a recounting of such policies in the CAVR final report. Perhaps the penance of Australia, Britain, France, and the United States was to support the people of East Timor’s

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self-determination and the building of a relatively peaceful state and society capable of self-governance. Some, particularly outside observers, desired to place Manichean categories onto those responsible, but culpability is never black and white, which was never truer than for those actively engaged in the daily struggle to resist or comply. Few of these complexities could be established in any court of law; the governor of East Timor under Indonesian rule, Mario Carrascalão, while enforcing repressive state control would also find secretive ways to support the clandestine movement.139 Likewise, Indonesian soldiers from the poor, rural segments of Indonesian society often sold or bartered their own weapons to FRETILIN guerrillas for goods or money, sometimes out of sympathy, more often to make a small profit. Even in prison, Gusmão was greatly aided by Indonesian guards who developed camaraderie with his stand against Suharto’s abuses and sometimes assisted in the delivery of his secret messages to the resistance through the help of his future wife Kristy Sword. At the same time, domestic initiatives for transitional justice could have been allowed to evolve independently; those that build on local customs and values rather than the short-term symbolic representation provided by international forums, appear to be more enduring. Local approaches had the benefit of affordability and were more readily sensitive to the local culture and domestic constituencies. Survey research from the Asia Foundation supports this analysis: People are most comfortable and familiar with the adat process. While East Timorese generally approve of the formal system, citizens, particularly in the districts, are not familiar with the process of bringing a problem to the district court. There is very low awareness regarding how to engage selected elements of the formal legal system, including public defenders, legal aid organizations, and lawyers. While the courts and the police are well regarded overall, compared with traditional dispute resolution processes, the formal legal system is perceived to be less fair, less accessible, more complex, and a greater financial risk. Moreover, due to the shortage of practicing attorneys, particularly outside of Dili, most East Timorese have no access to legal services…Due to delay, legal uncertainty, and the high costs involved in lodging a civil case (including a $75 filing fee), citizens are 140 reluctant to bring disputes to the formal courts.

The revival of customary methods of justice and reconciliation offered a better cultural fit for the indigenous community, though they fell short of international human rights standards, particularly regarding

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gender. Yet an entirely domestic pathway may be paved with stones. Political expediency commonly dictates national priorities that do not favor true accountability; domestic courts are usually politicized, particularly in Indonesia, and fail to meet standards of fairness and impartiality. The Timorese government preferred a truth and reconciliation commission that would lack the power to sanction or prosecute and would be more easily influenced by state priorities and it remained reluctant to accept any process that could antagonize Indonesia. Damaged relations with Indonesia could seriously undermine East Timor’s national development policy, which depends on the investment and market of its large neighbor. On the domestic front, the voices supporting justice were simply too few to persuade those who levy power. Options for transitional justice are more plentiful than we might imagine. Aside from the choice to ignore past atrocities, a variety of institutions is available and can be applied in a multiplicity of ways including through formal linkages. No doubt standard models of transitional justice applicable to all cases are inappropriate; however, while there are more avenues than we may realize, there are also more pitfalls than commonly forecasted. Mechanisms depend on local definitions of justice and reconciliation, unique cultural understandings, and broad historical contexts, but must confront the influence of powerful interests, both domestic and international, and the trade-off among the values each institution represents. Therefore, a pragmatic approach must accommodate the unique conditions of each case regarding when to deploy an international tribunal, a hybrid tribunal, a truth and reconciliation commission, or nothing at all. Most importantly, practitioners must identify relevant constituencies and tailor the output to these realities, accepting that some will desire revenge, while others will demand justice, offer to reconcile, or accept peace. Those desirous of retribution, the victims, often failed in their quest; the single forum designed to accommodate such motivations, the hybrid tribunal, did not match expectations. Knowing the elusiveness of justice, in my personal observations, Timorese, infused with Western rhetoric, appeared either indignant at impunity or satisfied with the larger victory of freedom; yet acceptance of the justice, or even the reconciliation, process is not wholehearted. Hybrid courts offer a hopeful method to combine international standards of human rights and humanitarian law with domestic judicial principles and to join well-trained international lawyers with local personnel from the legal profession who are often in need of additional preparation. As new experiments, hybrid courts had some growing pains

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and may have only limited utility due to a lack of cultural applicability in some cases. The hybrid court failed because of its rigid formality, its adoption of English as the court’s base language, and its overall lack of professional standards. The process itself was culturally irrelevant to the vast majority of the population unfamiliar with the solemn, adversarial courtroom. Much of the population and outside commentators wrote off the Special Panels for Serious Crimes after its early disappointments and the court never received sufficient public support to validate its purpose. Interestingly, a UN report did find a “notable degree of accountability” for the 1999 violence through the serious crimes process, but recognized that it “had not yet achieved full accountability of those who bore greatest responsibility for serious violations of human rights.”141 Reconciliation commission hearings tended to adopt local cultural or religious practices and thus garnered greater cultural capital. Built on traditional mediation, the truth and reconciliation commission made better decisions in tailoring its output to the local audience. East Timor’s CAVR took many statements and conducted far more reconciliation hearings than it had anticipated, employing the indigenous language, using a well-understood, informal, oral process, and adopting international human rights principles. By the end of both fora, the local community wanted to continue the reconciliation hearings, the same cannot be said for the serious crimes trials. From a counter-factual vantage point, signs of progress toward justice and reconciliation are tangible; the implementation of peacebuilding and transitional justice seemed to lessen the likelihood of revenge attacks and helped to interrupt an unending cycle of violence. These choices illustrate the progress made in applying sanction to massive human rights abuses and war crimes so that now actors must actively resist such punishments. These albeit imperfect institutions have indeed helped to alleviate hostilities to a degree, aided by the fact that most of the major culprits reside in Indonesia and are not situated to launch an insurrection. Having laid out a broad range of criticisms, the researcher may feel compelled to put forward some positive recommendations subject to interpretation and public scrutiny. The following chapter is a collection of numerous suggestions for improving the conduct of peacebuilding and transitional justice. Planning and timing are crucial aspects to improve the chances of success; therefore, an approach that integrates methods of transitional justice, links such institutions to UN peace operations, and sequences a phased implementation of these mechanisms could rectify some of the problems identified here.

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Notes 1. Aside from specific notes that indicate otherwise, all descriptions of court proceedings or public hearings of the truth and reconciliation commission are based on direct personal observations by the author during the summer of 2003. The trials of Paulino de Jesus (Paulino de Jesus: Case no. 6/2002) and Domingos Mendonça (Same case: Case no. 18/18A/18B/2000, originally 4/2000) respectively were the primary cases on the docket while I observed the court, though I occasionally witnessed several other cases at various stages of litigation, including the following: Anastaçio Martins and Domingos Gonçalves: Case no. 11/2001, Armando dos Santos: Case no. 16/2001, Passabe case: Case no. 20/20A/2001, Damaio da Costa Nuñes: Case no. 1/2003, Miguel da Silva: Case no. 8/2003, and Marcelino Soares: Case no. 11/2003. Double quotes are used for direct transcriptions that I made of statements in English; single quotes are used for direct transcriptions of the English through the court interpreter. 2. Figure 4.1 is based on a reading of opinions from various constituencies in transitional societies around the world. The graphic is designed to differentiate the interests and motivations of various actors at several levels of analysis and provide the reader a framework to understand the complexity of these competing desires. Very little survey data exists to conduct a quantitative analysis of elite or public opinion, thus this figure relies on the application of rational actor calculations based on anecdotal evidence, particularly from Cambodia and East Timor, but other locations as well. Though constructed largely from these two cases, the motivations of the several constituencies would be expected to generally follow the same patterns elsewhere. 3. Lisete Quintao, interview by the author. 4. Eurico Guterres quoted in Jordao Henrique, “Timor Must Choose Between Reconciliation and Justice, Says Former Leader,” Asia Intelligence Wire, 16 May 2004. 5. Michael Richardson, “Jakarta Setting Stage For Army Prosecutions,” International Herald Tribune, 22 January 2000. 6. Indonesia has begun to formulate its own internal truth and reconciliation commission, primarily for the Suharto era, but including events since independence in 1945. 7. Anonymous Ministry of Foreign Affairs and Cooperation official, interview by the author. 8. In May 2004, Gusmão stated “The (East Timor) government does not always follow or recognize SCU’s decisions,” Xanana Gusmão quoted in Sian Powell, “Justice Sidelined as East Timor Courts its Neighbor,” The Australian, 17 May 2004. Ramos Horta has said, “As Foreign Minister, I will not use my energy to lobby for an international tribunal,” José Ramos Horta quoted in Louise Williams, “East Timor Determined to Leave its Past Behind,” Sydney Morning Herald, 7 November 2003. 9. Lucy Williamson, “Ramos Horta Slams UN ‘Hypocrisy’,” BBC News, 15 September 2008. 10. Obviously, this idea derives from the human needs theory of Abraham Maslow, A.H. Maslow, “A Theory of Human Need,” Psychological Review 50 (1943): 370-396.

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11. Asia Foundation, Land and Justice in East Timor. The prior year an end to violence was the top concern. 12. Kofi Annan, “Two Concepts of Sovereignty,” The Economist, 18 September 1999. 13. Stephen John Stedman, “Introduction,” in Stedman, Rothchild, Cousens, Ending Civil Wars, pp. 18-19. 14. Clinton stated: “We did not act quickly enough after the killing began. We should not have allowed the refugee camps to become safe havens for the killers. We did not immediately call these crimes by their rightful name: genocide.” David J. Scheffer, U.S. Ambassador-at-Large for War Crimes Issues, Address at the Conference on “Genocide and Crimes Against Humanity: Early Warning and Prevention,” Holocaust Museum (Washington, DC: 10 December 1998). 15. While the IMET training of foreign military officers on American soil was stopped, the Joint Combined Education and Training (JCET) training of foreign military officers on foreign soil continued; Clinton had resumed bilateral aid in 2000. Different funding channels had been used to disburse counter-terrorism aid after 2001. In November 2004, the U.S. Congress, which had once pressed for an East Timor Self-Determination Act, renewed bans on IMET and foreign military financing (FMF), which provides credits to buy U.S. weapons, because of Indonesia’s failure to investigate the 2002 deaths of two American schoolteachers in Timika, West Papua, and ongoing unaccountability toward East Timor. Not wishing to upset, antagonize, or destabilize a key ally, the United States restarted the bilateral defense dialogue (BDD) in 2004. 16. By 1989, the two nations had signed the Timor Gap Treaty delineating petroleum and gas exploration in the seabed. 17. Akmal Nasery Basral and Karaniya Dharmasaputra, “The Indonesian Military has not Kept Pace,” Tempo, 31 May-6 June 2005. 18. Drake, National Integration in Indonesia, p. 25. 19. Merry, Colonizing Hawai‘i, p. 210. 20. Trindade and Castro, Rethinking Timorese Identity as a Peacebuilding Strategy, p. 21. 21. Sometimes this customary justice is referred to by the Indonesian term adat. 22. Babo-Soares, “Nahe Biti, p. 233. 23. Ibid., p. 236. 24. Ibid., p. 240. 25. 1999/S-4/1, 27 September 1999, A/54/660, 10 December 1999. 26. Report of the UN Commission on Human Rights on its Fourth Special Session, Geneva, 23-24 September 1999: E/CN.4/1999/167/Add.1, E/1999/23/Add.1, 20 October 1999. This report is in accordance with Commission on Human Rights resolution 1999/S-4/1 of 27 September 1999 as endorsed by the Economic and Social Council in its decision 1999/293 of 15 November 1999. 27. The prosecution included units for information technology, witness management, a police liaison, interpreters, a training program, evidence, forensics, and police training. The prosecutors and case managers were divided into four regional teams. Team one was Bobonaro (Honalu), Ainaro, and Ermera (Era Merak), team two was National, Baucau (Waukau), Viqueque

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(Wekeke), and Los Palos, team three was Suai, Same, and Manatuto, and team four was Dili, Liquiça, Oecusse, and Aileu. 28. The Serious Crimes Unit was a part of UNTAET’s Human Rights Unit until the Prosecutor’s office opened in June 2000. The first DGPSC, Jean-Luis Gillisen, was appointed in July 2001, followed by Siri Frigaard (January 2002April 2003), Essa Faal (April-October 2003), Nicholas Koumjian (October 2003-February 2005), and Carl de Faria (February-May 2005). 29. The ten priority cases were the Liquiça Church massacre of 6 April 1999; the murders in Dili District on 17 April 1999 (including the Manuel Carrascalão house case); the Kailako killings of April 1999 and the Maliana Police Station Killings of 2-8 September 1999; the Los Palos case of 21 April25 September 1999; the Lolotoe case of 2 May-16 September 1999; the Suai Church massacre of 6 September 1999; the attack on Bishop Belo’s compound and the Dili Diocese of 6 September 1999; the Passabe and Makaleb massacres of September-October 1999; cases of deportations, persecution, killing of UNAMET staff and atrocities carried out by TNI Battalion 745 from AprilSeptember 1999; and sexual violence cases carried out in various districts from March-September 1999. 30. The investigation focused on the following criminal activities: the Liquiça Church massacre of 6 April 1999; arbitrary arrests and torture in Kailako, 12 April 1999; the ambush of Manual Gamma groups on 12 April 1999; summary executions in Bobonaro, 13 April 1999; the attack on Manuel Carrascalão’s house of 17 April 1999; the riots in Dili of 26 August 1999; the attack on the Dili Diocese of 5 September 1999; the attack on Bishop Belo’s house of 6 September 1999; the burning down of houses (scorched-earth operation) in Maliana on 4 September 1999; the attack on the Suai Church Complex of 6 September 1999; the murder of Sander Thoenes on 21 September 1999; the massacre in Los Palos of 25 September 1999; and acts of genderbased violence including rape. 31. S/2006/580, Report of the Secretary-General on Justice and Reconciliation for Timor-Leste, 26 July 2006. 32. The other commissioners were Jacinto das Nelves Raimundo Alves, Maria Olandina Isabel Caeiro Alves, Isabel Amaral Guterres, José Estêvão Soares, and Reverend Agustinho de Vasconselos. 33. The five Indonesian members were former Supreme Court justice Benjamin Mangkudilaga (chair), former Chief of Territorial Staff Lieutenant General (ret.) Agus Widjojo, Hasanuddin University Law Professor Achmad Ali, Kupang Archbishop Petrus Turang, and diplomat Wisber Loeis. The five Timorese members were Dionísio da Costa Babo Soares (chair), Jacinto das Neves Raimundo Alves, Cirilo José Jacob Valadares Cristovao, Aniceto Longuinhos Guterres Lopes, and Felicidade de Sousa Guterres (the only female). 34. East Timor-Indonesia, Per Memoriam Ad Spem. 35. Elizabeth G. Traube, “Unpaid Wages: Local Narratives and the Imagination of the Nation,” The Asia Pacific Journal of Anthropology 8, no. 1 (March 2007), p. 21. 36. Asia Foundation, Land and Justice in East Timor. 37. Pigou, Crying Without Tears, p. viii. 38. Ibid., p. 35. 39. Ibid., p. 39.

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40. Ibid., p. viii. 41. UN Commission on Human Rights, Report of the UN High Commissioner for Human Rights on the situation of human rights in TimorLeste. 42. James Dunn, “Crimes against Humanity in East Timor, January to October 1999: Their Nature and Causes” (2001); and Geoffrey Robinson, “East Timor 1999: Crimes Against Humanity” (2006). Robinson’s paper was written in 2003, the Dunn report suggested such a course of action only if those responsible in Indonesia were not brought to justice by some other means. 43. Barlaque derives from the Malay word berlaki. 44. Reiger and Wierda, The Serious Crimes Process in Timor-Leste, p. 12. 45. Cambodia is an exception where the time period was narrowed to 19751979 in part to exclude the vagaries of the U.S. role in Vietnam, though it was not sufficient to escape the funding provided by China to the Khmer Rouge. 46. During the visit of U.S. President Gerald Ford and Secretary of State Henry Kissinger, Suharto cautioned that “Indonesia has no territorial ambitions [but] we want your understanding if we deem it necessary to take rapid or drastic action. Ford reassured Suharto that “We will understand and will not press you on the issue. We understand the problem you have and the intentions you have,” while Kissinger cleverly anticipated the political fallout: “You appreciate that the use of US-made arms could create problems….It is important that whatever you do succeeds quickly….It would be better if it were done after we returned.” Brad Singer at George Washington University’s National Security Archives has compiled several declassified documents relating to East Timor and Indonesia, this memo among them. Embassy Jakarta Telegram 1579 to Secretary State, 6 December 1975 [Text of Ford-KissingerSuharto Discussion], Secret/Nodis. Source: Gerald R. Ford Library, KissingerScowcroft Temporary Parallel File, Box A3, Country File, Far East-Indonesia, State Department Telegrams 4/1/75-9/22/76. 47. Western complicity in tolerating Suharto’s planned invasion contrasts with China, which was the only permanent member of the Security Council to support Timorese national self-determination and has re-established close working relations with East Timor in developing mutual economic interests, though is ambivalent about transitional justice at best. 48. By 1991, Australia had concluded the Australia-Indonesia Timor Gap Treaty to develop off shore petroleum and natural gas resources. Anticipating bilateral negotiations with the new nation over these resources, Australia withdrew its recognition of the UN Convention on the Law of the Sea’s compulsory dispute settlement immediately prior to Timorese independence in March 2002. Australian Declarations under Articles 287(1) and 298(1) of UNCLOS 1982. Australia was especially pushed by its own pro-Jakarta lobby within its Defence Intelligence Organisation (DIO) and the Australian Defence Forces (ADF) that emphasized Indonesia’s strategic geographic importance and bilateral economic ties as the core state of ASEAN. This lobby group reportedly tried to rhetorically distance the armed forces from its Kopassus special forces unit, identifying repeated human rights abuses as the work or ‘rogue elements’ in the TNI. 49. Anonymous Member of Parliament, interview by the author. 50. José Luis Oliveira, interview by the author.

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51. Draft Constitution of East Timor, Part VII (Transitional and Final Provisions), sec. 148. 52. The scope was limited to violence from April to September 1999, including the Liquiça Church massacre, arbitrary arrests and torture in Kailako, the ambush of Manual Gamma groups, summary executions in Bobonaro, the attack on Manuel Carrascalao’s house, the riots in Dili of August, the attack on the Dili Diocese, the attack on Bishop Belo’s house, the burning down of houses (scorched-earth operation) in Maliana, the attack on the Suai Church Complex, the murder of Sander Thoenes, and the massacre in Los Palos. 53. Similarly, the Special Court for Sierra Leone is mandated only for crimes committed after 30 November 1996 despite the presence of civil war since 1991. See Statute of the Special Court for Sierra Leone pursuant to UN Security Council Resolution 1315 of 14 August 2000, S/RES/1315 (2000). Larke, interview by the author. 54. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, 23 August 2004. 55. Reiger and Wierda, The Serious Crimes Process in Timor-Leste, p. 30. 56. Belo, interview by the author. 57. Anonymous court official, interview by the author, Dili, East Timor, August 5, 2003. 58. Reiger and Wierda, The Serious Crimes Process in Timor-Leste, p.60. 59. Belo, interview by the author. 60. Sharma, interview by the author. 61. Walsh, interview by the author. 62. Cohen, Intended to Fail, p. 54. 63. Hirst, Unfinished Truth, p. 15. 64. See JSMP website at http://www.jsmp.minihub.org. 65. Reiger and Wierda, The Serious Crimes Process in Timor-Leste, p. 20 66. This indigenous process could be likened to the conflict resolution term ‘mediation,’ though the third party actors, village elders in this case, customarily have greater influence to impose a solution than a traditional mediator. 67. Anonymous Public Defender, interview by the author. 68. Cohen, Intended to Fail, p. 28 69. Hirst, Too Much Friendship, Too Little Truth, p. 302. For example, during the testimony of Augusto Dato Buti, CTF public hearing, 2 May 2007, Jakarta, and that of Luisa Alves Almeida, CTF public hearing, 4 May 2007, Jakarta. 70. Ibid., p. 303. 71. The date to mark the conclusion of the commissions’ work is when the final report was delivered. 72. Cohen, Intended to Fail, p. 47. 73. Open Society Institute and Coalition for International Justice, “Unfulfilled Promises. 74. The 18 suspects tried were regional commander Adam Damiri, former military commanders for East Timor Tono Suratman and Nuer Muis, former Dili military commander Sujarwo, former Governor of East Timor Abilio Soares, former East Timor Police Chiefs Timbul Silaen and Hulman Gultom, former Dili Police Commander Endar Priyanto, Aitarak militia commander Eurico Gutteres, and mid-level officers Herman Sedyono, Liliek Kushadianto,

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Ahmad Syamsudin, Sugito, Gatot Subiyaktoro, Asep Kuswani, Adios Salova, Leoneto Martins, and Yayat Sudrajat. 75. Damiri has taken a prominent role in suppressing the Acehnese secessionist movement. 76. S/2006/580, Report of the Secretary-General on Justice and Reconciliation for Timor-Leste, 26 July 2006. 77. Cohen, Intended to Fail, p. 60. 78. INTERFET had 10,000 troops, one-third of which were Australian. 79. S/2000/1105, United Nations Report of the Security Council Mission to East Timor and Indonesia of 21 November 2000, p. 2. 80. Anonymous public defender, interview by the author. 81. Judicial System Monitoring Program, Digest of the Jurisprudence of the Special Panels for Serious Crimes, p. 9. Armando dos Santos v. The Prosecutor General, Case No. 16/2001, 15 July 2003 82. In English, the CPLP is known as the Community of Portuguesespeaking countries. UN Commission on Human Rights, Report of the UN High Commissioner for Human Rights on the situation of human rights in TimorLeste. 83. Trial of Domingos Mendonça, observation by the author, Dili, East Timor, 24 July 2003. 84. Judicial System Monitoring Program, Digest of the Jurisprudence of the Special Panels for Serious Crimes, p. 23. 85. Perreira, interview by the author. 86. Judicial System Monitoring Program, Digest of the Jurisprudence of the Special Panels for Serious Crimes, p. 23. 87. The term ‘genocide’ is often applied haphazardly and the calculation of death tolls becomes politicized as data is rarely substantiated and may overstep the demographic realities. Groups sympathetic to the suffering of the Timorese people sometimes estimate total deaths as high as 200,000 in East Timor and have often labeled the atrocities committed there as genocide, arguing that Indonesia’s transmigration policy or certain birth control policies amounted to a plan of extermination. Although the Genocide Convention’s definition is so broad (‘the attempt to destroy in whole or in part a national, ethnical, racial, or religious group,’ though omitting political groups) that all sorts of offenses could be construed as genocide, this book does not find the East Timor case to be a genocide, unlike the German attempt to eradicate Jews in the Nazi’s final solution or Hutu efforts to annihilate Tutsis in Rwanda. Indonesia, often using Timorese as its executioners and enforcers, sought to suppress an indigenous political movement and prevent a true act of self-determination through brutal repression. The goal was not, however, to eliminate all Timorese people; the Timorese on the western half of the island were not harmed for instance. One step beyond policies that seek to carve out a racially pure swath of territory in an act of ethnic cleansing, the term genocide should be reserved for those most racist and heinous crimes based on the immutable characteristics of the target group. Of course, terminology should not mitigate the gross human rights violations and crimes against humanity that occurred, where the ratio of death rivals the worst atrocities of the twentieth century. In East Timor, five were charged with extermination, but none convicted. Of twelve defendants charged with deportation or forcible transfer, eight were convicted, three were acquitted for lack of evidence, and one case was withdrawn. Six were charged with

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imprisonment, two pleaded guilty, two plea-bargained and the charges were withdrawn, one was convicted, and one was acquitted (though convicted of three other charges). Seventeen defendants were convicted for torture. Of the six indictments for rape and sexual violence, one trial occurred and resulted in a conviction. The crime or persecution was common, though as a new approach was not clear. Two cases of enforced disappearance occurred, one was acquitted and the other was a murder charge plea bargained to enforced disappearance. 88. Australian Associated Press, “Gusmão says Tribunal Won’t Bring Justice,” Australian Associated Press, 20 September 2005. 89. Ironically, Wiranto’s vice-presidential running mate was Solahuddin Wahid, leader of the human rights organization Komnas HAM. 90. Xanana Gusmão quoted in Matthew Moore, “Lay Off Wiranto, Gusmão Tells Law Man,” Sydney Morning Herald, 25 May 2004. Gusmão, Ramos Horta, Monteiro, and Wiranto allegedly met secretly in Bali in late January or early February 2004 to discuss this accommodation. 91. Larke, interview by the author. 92. Babo-Soares, “Nahe Biti,” p. 238. 93. Larke, interview by the author. 94. East Timor, Chega!. 95. East Timor, Chega!, Executive Summary, p. 27. 96. Baucau parishioners, interview by the author, Baucau, East Timor, 26 July 2003. 97. Perreira, interview by the author. 98. Walsh, interview by the author. 99. Rosario, interview by the author. 100. Egas da Costa, interview by the author. 101. Muhammad Atqa, “Indonesia-East Timor to Form ‘Truth and Friendship’ Commission,” Indonesian Detikcom, 20 January 2005. Catholic Bishop Ricardo da Silva opposed the deal. 102. Editorial, Jakarta Post, “UN’s Big Blow,” 2 August 2007. 103. Hirst, Too Much Friendship, Too Little Truth, p. 2 104. Ibid., p. 26 105. Ibid., p. 34. 106. Telly Nathalia, “UN Shares Blame for Timor Riots, Indonesia Says,” Reuters, 24 Oct 2007; Alvin Darlanika Soedarjo, “Ex-General Blames UN Forces for 1999 Timor Leste Carnage,” Jakarta Post, 29 March 2007. 107. Alvin Darlanika Soedarjo, “Ex-General Blames UN Forces for 1999 Timor Leste Carnage,” Jakarta Post, 29 March 2007. 108. East Timor-Indonesia, Per Memoriam Ad Spem. Two substantial appendices (together almost 550 pages) are attached to the report that detail the bulk of the evidence collected through the CTF’s document review process. 109. Staff, “TNI Responsible for East Timor Mayhem: Chief,” Jakarta Post, 18 July 2008. 110. Olivia Rondonuwu, “East Timor PM Satisfied with Indonesia’s Regret,” Reuters, 16 July 2008. 111. Ibid. 112. After Tétun, the most widely spoken languages are Bunak, Kemak, and Makassae; Mambai is common near the West Timor border region and is thus used relatively frequently in these processes.

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113. On 27 April 2004, a simultaneous interpretation system was introduced that alleviated some of these dilemmas. 114. Special Panel for Serious Crimes, observations by the author, Dili, East Timor, summer 2003. 115. Special Panel for Serious Crimes, Case 18A: Sarmento and Domingos Mendoca, observation by the author, 24 July 2003. 116. Trial of Paulino de Jesus, observation by the author, Dili, East Timor, 8 August 2003. 117. Trial of Domingos Mendonça, observation by the author, Dili, East Timor, 12 August 2003. 118. Ibid. 119. Ribeiro, interview by the author. 120. East Timor-Indonesia, Per Memoriam Ad Spem, Reflection, p. v. 121. Trial of Domingos Mendonça, observation by the author, Dili, East Timor, 7 August 2003. When given a chance to discontinue his testimony, the witness stated, “I want to finish here.” 122. Susan McKay, “Gender in Postconflict Reconstruction,” in Jeong, Approaches to Peacebuilding, p. 131. 123. Graydon, interview by the author. 124. Owing to Timor’s significant ethnic and cultural diversity, some villages follow a matrilineal custom while others are patriarchal. Perreira, interview by the author. 125. Pigou, Crying Without Tears, p. 35. 126. UN Commission on Human Rights, Report of the UN High Commissioner for Human Rights on the situation of human rights in TimorLeste. 127. Anonymous Public Defender, interview by the author. 128. Open Society Institute and Coalition for International Justice, “Unfulfilled Promises.” The report also criticized the prosecutor general’s lack of independence (the position is under national government authority), administrative mismanagement, rapid staff turnover, and inadequate UN support. 129. Fernando Lathore, IFES mentor for Ordinary Crimes, interview by the author, Tutuala, East Timor, 13 August 2003. 130. UNMISET, “Strategic Plan for East Timor Justice Sector: Post UNMISET Continuing Requirements and Suggested Mechanisms,” Dili, East Timor, 24 September 2003. 131. Hiring of international judges by East Timor was permitted under UNTAET Regulations and the district courts hired seven international judges. 132. Merry, Colonizing Hawai‘i, p. 258. 133. The original files remain the property of the Timorese government at the Office of the Prosecutor General. Judicial System Monitoring Program, Digest of the Jurisprudence of the Special Panels for Serious Crimes, p. 13. 134. Alves, interview by the author. 135. S/2006/580, Report of the Secretary-General on Justice and Reconciliation for Timor-Leste, 26 July 2006. 136. In July 2005, 12 soldiers were acquitted on appeal for the killing of more than 20 anti-government Muslim demonstrators at Tanjung Priok in northern Jakarta.

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137. Asmara Nababan discussed these views at a lecture at the East West Center, Honolulu, HI, 21 April 2003. 138. Cohen, Intended to Fail, p. 64. 139. Anonymous ex-FALINTIL soldier, interview by the author. 140. Asia Foundation, Land and Justice in East Timor. 141. S/2006/580, Report of the Secretary-General on Justice and Reconciliation for Timor-Leste, 26 July 2006.

5 Connecting Peacebuilding and Transitional Justice This book intended to answer three pragmatic policy questions. First, it asked ‘did the United Nations help to create a peaceful state and society capable of self-governance?’ Here, UN peacebuilding served as an overall context in which to more specifically evaluate transitional justice, asking two further questions: ‘Did transitional justice satisfy demands for accountability, justice, and/or reconciliation?’ and ‘Which model of transitional justice can best achieve these goals?’ Determining whether these mechanisms achieved peace, justice, and reconciliation is complicated since these concepts are subject to varying meanings for different constituents and very little reliable data exists. To gauge performance, success should be measured across a historical continuum that takes account of the status quo ante and may employ counterfactual scenarios such as the absence of an intervention or without any sort of external peacebuilding and transitional justice program. Likewise, achievements are better compared in relation to conditions in neighboring countries or states of similar size and development levels rather than to modern liberal democracies. The results of the book were heavily influenced by the sometimes forgotten role of power and culture in the design and implementation of institutions of peacebuilding and transitional justice. The United Nations and the international community enabled East Timor to become an independent self-governing territory, which stands as the monumental achievement of the overall presence. In promoting a modicum of peace, the United Nations created a functioning state and a pluralist society; however, it did not invest in the human and financial resources to ensure a peaceful state and democratic society capable of independently maintaining stability. Instead, the weak commitment to socioeconomic development and the poor training of integrated and professional security forces allowed destabilizing elements to grow and saw multiple episodes of political violence that resulted in the redeployment of UN and other international police and military units. Though not a ‘failed’ state and cognizant that a great deal of the sources of unrest owe to domestic political dynamics, the inability to foster a

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durable peace has occurred under the ‘watch’ of the United Nations and stems from a lack of planning for a long-term strategy that focused on the root causes of the violence and prepared for emerging threats and social changes. Demands for accountability were foiled when the UN Security Council demonstrated its lack of political will in the pursuit of Indonesian perpetrators, though it cannot be said that impunity was necessarily the result. The Timorese leadership chose to bargain for their own goal of bilateral peace with Indonesia, eschewing justice in order not to antagonize their powerful neighbor; thus, the final verdict is somewhere in between. The two legal chapters of this story demonstrate the limitations of a formalized, accusatorial approach, though the trials alone did sanction individual perpetrators and threatened many others, thereby contributing to a deterrent effect, particularly toward Indonesia’s governing dwifungsi philosophy that allows the dual function of the military in security and politics. With its own internal democratization and reform, Indonesia is far from the days of the New Order, though still a fractious society with an inordinately militarized state and similarly repressive practices taking place in West Papua, Aceh, and elsewhere. The two reconciliatory chapters are uneven reading; one demonstrated the negative peace version of an insincere and self-interested recounting of a false narrative that left observers aghast, the other provided some true and heartfelt mutual restoration, albeit only among the ordinary victims and offenders. For Timorese, the CAVR reinvigorated respect for indigenous methods of mediation and justice and thus empowered the local population to regenerate customary practices that could help augment peace. The threats to justice and reconciliation today are not from former enemies, but rather the structural effects of under-development and the emotional scars that contribute to new hostilities, particularly the poor reintegration of excombatants in need of gainful employment and social services to relieve their trauma. Yet through the collective performance of these four idiosyncratic processes, a degree of accountability has occurred, if only to dissuade various constituents from resorting to vengeance. International oversight of the transitional justice process within the context of a peacebuilding operation helped to link comprehensively the spectrum of postconflict motivations and began to integrate peace, justice, and reconciliation. Simply administering such mechanisms at all, no matter how poorly run, may have prevented a spiral into violence and a cycle of revenge attacks. A comprehensive accounting of the historical atrocities and their authors has been established, from the institutional responsibility

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of governing bodies and its decision-makers to the individual perpetrators who followed their directives. The crimes will not quickly be forgotten, and though the implementation of each did not match expectations, a permanent documentary record of the massive human rights violations is a resource for the future and particularly for the Timorese youth who are only now coming of age in a postconflict society. Each model has its strengths and weaknesses, and the expanding volume of choices is a welcome change in international relations. In order to be relevant, the formulation of any transitional justice process must take account of the meaning of each goal in a given society, match those ideals to the multiple constituencies that will be required to support such practices, and include full consultation with the local public to ascertain their particular preferences. The rest of this chapter concludes with initial suggestions for designing greater linkages between peacebuilding and transitional justice. A Design to Link Peacebuilding and Transitional Justice

Multiple empirical case studies and lessons learned reviews of individual countries or comparisons of several peacebuilding missions have analyzed policy choices, priorities, sequencing, components, and mandates; the United Nations itself has produced many of the lessons learned reports and policy proposals.1 In his 1995 Supplement to an Agenda for Peace, Boutros-Ghali envisioned that postconflict peacebuilding would initially be undertaken by multifunctional UN operations, handed over to civilian agencies under a resident coordinator, and finally transferred to local agents entirely.2 In 2000, the Panel on UN Peace Operations chaired by Lakhdar Brahimi presented recommendations to improve the efficiency and performance of peacekeepers and Secretary-General Annan put forward an implementation plan.3 While many suggestions were offered in the “Brahimi Report,” a desire to deploy forces more quickly and understand the political dynamics between victims and aggressors were important in relation to peacebuilding. Implementation is also affected by the proper balance between state and civil society relations, where to emphasize resources, and whether the focus is more aptly on state security or human security. Moreover, a growing emphasis among researchers is to explore the distinct constituent parts of peacebuilding missions in further detail: the role of a lead agency or country, the mandates of various missions, the appropriate troop strength, or more

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general categories like security, humanitarian assistance, governance and administration, socioeconomic development, or human rights. Most cases of transitional justice did not involve the United Nations and occurred in the post-communist transitions of Central and Eastern Europe and post-authoritarian military trials in Africa, Latin America, and southern Europe.4 Therefore, much of the literature questions whether elections or reform of political and legal institutions should come first. For instance, is it better to build democratic institutions before attempting constitutional reform, or rather to establish the rule of law prior to institution-building? Ruti Teitel differentiates this formula as either seeking political change first followed by promoting the rule of law, or adopting legal reform first to aid in the coming political transition.5 Examinations of the implementation of transitional justice consider whether tribunals contribute to the rule of law, respect for human rights, transparent, fair, and democratic procedures, and build capacity for judicial and legal reforms. The United Nations prioritized building domestic justice capacities in its 2004 report on the rule of law and transitional justice, yet little empirical research has examined to what extent such institutions truly impact justice and reconciliation in the domestic setting.6 Peacebuilding and transitional justice are two distinct post-World War II projects, yet both have moved forward simultaneously and increasingly on a trajectory toward each other, reflected in the plethora of UN peacebuilding missions in the early 1990s and the development of more robust methods of human rights accountability. Human rights have become an important component of comprehensive and multidimensional efforts to build peace in war-torn societies as well as in the aftermath of conflict where accountability is sought through mechanisms of transitional justice: a formal investigation, a truth and reconciliation commission, or criminal tribunals. Likewise, the creation of a justice process is a growing component of UN rebuilding efforts, and includes legal reform and respect for a constitution, construction of a fair and impartial judiciary, training of police, and monitoring of prisons. Historical examples offer hope for the future. Linking transitional justice and reform of the state was successful at building democracy, institutionalizing the rule of law, fostering economic growth, and trying and punishing war criminals in Germany and Japan. The United States helped to rebuild Western Europe and Japan through programs like the Marshall Plan and encouraged both Germany and Japan to re-write their histories: the renunciation of war as a state policy was enshrined in the Japanese constitution, while de-nazification helped Germany come to terms with its past. Neither has fought a war of

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aggression or committed war crimes since, and only recently has either even begun to enter into limited peacekeeping duties. Certainly, other factors contributed to these reforms, but international and domestic trials were key components of political and social change. Practitioners should not fall into the trap of thinking in strictly linear terms of a conflict resolution process that results in peace when often a cycle of violence recurs and countries slip back into civil war or protracted violence again and again.7 If borrowed from a deep understanding of the local culture and power structure, the creative solutions of mediators, special representatives, and others can greatly enhance opportunities to achieve peace, justice, and reconciliation. The opportunity to achieve such lofty goals can be better delivered by gaining domestic input and support that focuses on local needs and desires. International decision-makers should seek greater participation and collaboration from domestic constituencies to design effective peacebuilding and transitional justice mechanisms and more authority should be transferred to local communities and national policymakers to implement the results. The effective implementation of peace or transitional justice is not likely to be achieved through domestic institutions or an international model alone. This holistic process may balance positive peace, legal justice, and social reconciliation alongside political realities. Trials that occur alongside the UN peacekeeping presence seem less likely to spiral into violence, and making examples of senior civilian and military officials and militia commanders sets an important precedent for accountability. At a minimum, integrating institutions should prevent each mechanism from actively working against the others, as when justice may upset stability. Uniquely, reconstructing places like East Timor and Kosovo ultimately required a multidimensional peacebuilding operation that granted the United Nations administrative authority to perform significant aspects of governance, including measures to achieve postconflict accountability and judicial capacity reform. When considering integration and coordination of institutions, one must also question whether peace, justice, and reconciliation are competitors, alternatives, or partners. Justice and reconciliation cannot be divorced from other social values and societal needs, such as security, economic growth, democratization, and gender equality, or specific targets like a larger government operating budget or adequate priorities on agriculture. Effectiveness requires real planning for each phase: how to construct a comprehensive system, how to manage and coordinate its components, how to conduct each process, how to disseminate its findings and results, and how to incorporate an inclusive

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commitment to human rights. As Tanya Putnam states, “Functionally, issues of concern to human rights permeate every aspect of comprehensive peacebuilding;”8 therefore, a human rights centered approach should be adopted at each phase of implementation in order to mitigate the negative effects of identity conflict, realpolitik foreign policy, and repressive state practices, chief culprits among the causes of political violence. Foreign policy makers commonly emphasize strategic national interests and state sovereignty, allowing appalling human rights abuses to occur with impunity due to their preoccupation with the interaction between atomized states. The construction of narratives of ethnic purity and racial supremacy, or some other formulation of an ‘imagined community’ that hierarchically distinguishes ‘us’ from the ‘other’ precedes the policy implementation of ethnic cleansing, crimes against humanity, and genocide. Finally, ‘govern-mentality’ may diminish individual and communitarian conceptions of human rights if the state becomes too centralized and bureaucratic and effectively minimizes the role of civil society groups that may wish to adopt nonstate and less institutional customs to resolve fundamental social problems.9 This book emphasized justice and reconciliation as interrelated and elemental components of a peacebuilding project. Based on the experiences of East Timor, but with consideration of other relevant examples, this chapter examines the relationship, or lack thereof, between transitional justice mechanisms that seek accountability for human rights violations and UN multidimensional peacebuilding missions that, among other functions, promote human rights and justice sector reform. In order to improve the role of human rights and war crimes accountability in comprehensive peace operations, this chapter suggests that practitioners use five distinct phases in the transitional justice model and the coordination and sequencing of institutions: (1) peace negotiations, (2) pre-deployment planning, (3) the establishment of security, (4) postconflict institution-building, and (5) the departure and future preparations. Although these phases are not mutually exclusive, the nuance of timing is an essential prerequisite for ultimate success. Public support must be incorporated into all phases of this model and the impact on peace and security must be considered at each step. Thus, better planning for all phases is required and clear and formal linkages between phases and institutions should be created. The United Nations and NGOs must draw upon the indigenous culture and local talent to build sustainable mechanisms that can ensure respect for peace, justice, reconciliation, and human rights.

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Sequencing Institutions

The proliferation of transitional justice mechanisms is certainly an asset for policymakers; the evolution of each model and the beginning of linkages between several engenders optimism. Truth and reconciliation commissions have proven their merit and hybrid models remain a hopeful partner. International policymakers must now coordinate, integrate, and sequence institutions of peacebuilding and transitional justice in order to promote human rights and successfully achieve peace, justice, and reconciliation. More specifically, practitioners should systematically evaluate the interests of stakeholders across the levels of analysis described in Chapter 4 (individual, family, community, state, and international) and identify how to accommodate these motivations and prepare strategies to counteract possible conflicts at each phase of implementation outlined in this chapter (during peace negotiations, predeployment planning, establishment of security, postconflict institutionbuilding, and the departure and future preparations). If these potential linkages are severed, the entire project could quickly unravel and damage each individual goal for multiple constituencies. Phase 1: During Peace Negotiations

In cases where domestic actors are part of the negotiation process and a peace agreement outlines aspects of the future arrangement, the United Nations may be constrained by the goal of securing peace and ensuring the good faith participation of those actors. Despots tend to clutch their power tightly and rarely exit the scene unless removed by force; thus, fear of criminal prosecution may remove a bargaining chip in international diplomacy. In March 2009, the president of Sudan chose to expel humanitarian aid workers after the ICC issued an arrest warrant for his alleged war crimes and crimes against humanity in the Darfur region. If human rights abusers are disqualified from the peace process, they may resume combat, if they are included, they will certainly not agree to trials, though a reconciliation commission is a viable alternative. Thus, linking transitional justice to peace negotiations is essentially impossible. In Cambodia, the Khmer Rouge would never have agreed to negotiate if a tribunal had been included. In the final negotiated text, the introduction to the Paris Agreement recognized the need to protect human rights, but only issued a call to assure ‘the nonreturn to the policies and practices of the past’ and omitted any discussion of accountability mechanisms for atrocities, war crimes, and human rights violations.10 Similarly, post-Suharto administrations in

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Indonesia opposed justice mechanisms, fearing to lose the support of their own military. International pressure to wrest control of sovereign territory and accept a foreign presence was already a bitter pill to swallow, East Timor would not have gained its freedom if prosecutions had been on the table in 1999. In Latin America in the 1980s, “the power to prosecute was bargained away in exchange for the peace,”11 and in Sierra Leone, the July 1999 Lomé Accords granted a blanket amnesty to ex-combatants. In these circumstances, transitional justice and accountability cannot be linked to peacebuilding; therefore, transitional justice should focus on what is attainable: political, legal, and judicial reform and fostering human rights and the rule of law through education and training. According to William Schabas, accountability for the past must be separated from building a functioning judiciary.12 Instilling the rule of law and building judicial institutions, rather than international trials alone, are more likely to have a lasting impact and achieve respect for human rights that encompass both the individual and the group. Thus, Samuel Huntington is likely correct that including a punitive tribunal is usually only possible after a clear defeat or outside imposition.13 What options are left? A peace deal could include vague language referring to accountability that would be actualized later, an arrangement could be made that allows new leadership to abandon the more extreme elements of the movement, or as allegiances and realities shift, transitional justice could be adopted later and previous amnesties rescinded. The Cambodian hybrid tribunal Extraordinary Chambers began its work in 2007 and commenced its first trial of the executioner Duch in March 2009 despite previous government pardons for those such as Ieng Sary, who now sits in the dock. The Sierra Leonean government later wished to remove the threat from Foday Sankoh and the Revolutionary United Front (RUF) and accepted a trial process; in fact, President Charles Taylor of Liberia was granted sanctuary in Nigeria before being turned over to the Special Court for Sierra Leone and transferred to the Hague for prosecution in 2007. Bosnian Serb war criminal Radovan Karadžić used the defense at the ICTY that U.S. negotiator Richard Holbrooke allegedly reneged on a verbal agreement not to prosecute. Rescinding amnesties sets a poor standard for the value of fairness and may further deter bargaining in the peacemaking stage, and bypassing state interests that have arranged immunity deals could risk domestic backlash. Yet with the existence of the ICC, the guarantee of immunity from prosecution as part of a peace agreement may no longer be possible. The United Nations itself argued that UN-endorsed peace agreements would never promise amnesties for genocide, war crimes,

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crimes against humanity, or gross violations of human rights.14 Indeed, at the signing of the Lomé Peace Accord, the UN representative appended to his signature a reservation that the amnesty provisions “shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”15 Of course, each case is unique, but the inclusion of transitional justice should be part of the equation early on or not at all. Justice delayed is justice denied; trials in Cambodia 30 years after the fact make a mockery of accountability. Phase 2: Pre-Deployment Planning

‘Integration’ of peacebuilding and transitional justice is the strategic attempt to incorporate differing philosophical notions of justice and reconciliation as well as other social values in a comprehensive project. ‘Coordination’ of peacebuilding and transitional justice is the tactical effort to formulate specific pragmatic policies that link the ordinary functional operations of these mechanisms. Integration and coordination may promote efficiency and reduce wasteful spending on similar projects, lead distinct institutions to deliver better services and results, and gain extra value in each by tying the mechanisms together into a coherent system. While one could assume that integration is only an issue at the preliminary planning phase, these deeper dilemmas present themselves at various stages of coordination. Failures and missteps that accrue at each juncture impede later processes and complicate areas of coordination. Mandates must take account of the interests and motivations of multiple constituencies, particularly the reaction of national governments and the desires of civil society. Similarly, in designing the mandate for a peace operation, the international community, along with the local and national communities, should coordinate the various components (security, development, administration, human rights, refugee return, etc.), organizations (local NGOs, national administrations, the private sector, bilateral foundations, aid groups, militaries, etc.), and international agencies (UNHCR, Interpol, UNDP, World Bank, OHCHR, etc.). Not every contingency can be planned for, and flexibility is also important, yet designing a comprehensive mission that develops integrated relationships between major players and harmonizes various phases is essential. The United Nations, or the member states outlining the operation, needs to develop a strategic longterm plan instead of ad hoc interim missions that have frequent turnovers of the SRSG, force commanders and deputy force

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commanders, senior staff of the field offices of specialized agencies, as well as ordinary UN volunteers and others. Likewise, recruiting for UN jobs among local and international NGO workers that have the skills and willingness to commit to a long-term mission could alleviate this turnover problem, particularly if rewarded with commensurate responsibilities and autonomy. Fusing the competencies of international organizations and NGOs could help deliver services without offending government interests; creating better reciprocal information sharing as the UN agencies dialogue with government bureaucrats in the capital on the one hand, while delivering better resources to NGO workers who have ties to grassroots community organizers in the rural areas on the other. Elizabeth Cousens highlights an important first principle in devising peacebuilding missions, differentiating the top-down approach suggested in Boutros-Ghali’s Agenda for Peace from a bottom-up method that grows out of local knowledge and context; in effect, one size does not fit all.16 The United Nations tends to appoint a ‘Commission of Experts’ who admirably perform their functions to investigate and offer recommendations; however, numerous local ‘experts’ with far more expertise are often overlooked in this process. A wealth of indigenous talent has forged important skills and holds the self-confidence, determination, and political awareness from years of brutality and occupation to succeed. Much of this talent resides outside the government, but will need to become entrepreneurial or seek reform from within the administration. The United Nations should adopt a grassroots approach that incorporates local knowledge and human resources and prioritizes the long-term sustainability of basic industries in its socioeconomic development plan. The United Nations could offer a performance-based partnership agreement with competitive contracts awarded to local small businesses by a particular ministry based on merit and performance to facilitate such progress. Community-based development that empowers women as vital providers and care-givers and improves basic services like water and sanitation will greatly improve living standards. At a minimum, better coordination among NGOs and the use of local organizations would improve the efficiency of delivering services to the community. To prepare a hopeful future, the international community must improve at building local capacity to carry out these projects; therefore, a rational choice mindset should be adopted, spending money and resources where they will have the most impact, even if it means rethinking the efficacy of transitional justice as a priority relative to development.

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Throughout the intervention, planners must take account of the local context, history, and culture, seeking motivated personnel that speak the indigenous language, have familiarity with local customs, and hold a commitment to the host country. Regarding the UN mission in Cambodia, MacAlister Brown and Joseph Zasloff suggested that “the burden of finding professionally adept, Khmer-speaking, and culturally sensitive administrators, who would remain politically neutral, was greater than the UN could be reasonably expected to shoulder.”17 Yet better hiring and training practices for international personnel could alleviate some of these problems. International staff should pass a cultural-awareness course specifically tailored to a given site; although international staff is by nature diverse, this diversity does not directly translate into cultural sensitivity. Teams of social scientists, particularly anthropologists and linguists, can serve an instructive role to guide the often overly technocratic UN civil servants in a problem-solving partnership. As a rare commodity, such talent may need to come from outside the UN system and have special leave arranged from a current job. Such staff could be teamed with skilled administrators and local personnel to more effectively train and deliver services, perhaps as part of the UN standby arrangements system that would include a rapid reaction group of civilian police, international judicial experts, penal experts, and human rights specialists.18 The United Nations should also encourage less elitism and more disciplined behavior among its staff and peacekeepers, including being more open and inclusive toward the local population. The United Nations will not win the hearts and minds of the populace simply by the legitimacy of its global membership; individual behavior, both transgressions and pleasantries, will greatly define local attitudes toward these institutions. The international community must embrace dialogue in its own practices for it to be truly successful. The United Nations would be well-served to appoint an independent ombudsperson or panel composed of ordinary local citizens and internationals from states not party to the intervention to monitor the behavior of international staff. Furthermore, since the pay scale is grossly skewed toward foreign personnel, it would be advantageous during the postconflict support operation if UN staff and other internationals resided within the society’s standard of living in a more pro bono effort commensurate with the surroundings. Credibility with the local population would increase exponentially if internationals faced the same challenges of state-building such as power outages and poor sanitation to help equalize the status differences between the two communities. Such schemes must be balanced of course by security concerns and should not

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risk alienating foreign personnel, though typical foreign NGO workers, particularly those in the relief and development fields, subsist adequately on far less pay and garner greater social legitimacy in return. The adoption of mechanisms of transitional justice and human rights protections is significantly improved alongside the presence of UN peacebuilding rather than after it has lapsed and attention has waned. Human rights are an essential component of multidimensional peacebuilding operations, best incorporated simultaneously with other important concerns: socioeconomic development, refugee return and rehabilitation, humanitarian relief, rebuilding infrastructure, education, etc. Representative government, free and fair elections, and legal mechanisms are core components of any efforts to protect human rights in war-torn societies; police academies, prosecutors, courts, and correctional facilities are sorely needed in all state-building exercises.19 Human rights are difficult to prioritize since they are so broad and emphasize process more than results; this ambiguity creates dilemmas in peace operations that seek demonstrable success and finite tasks.20 Implementation of human rights is more productive if NGOs and international staff focus less on detached criticism and more on active advising with government to provide constructive feedback and suggestions. Dialogue and mutual cooperation with the government and civil society offers a more useful way to instill the idea of human rights, adapting concepts and programs to local circumstances and realistic goals. One must also pay special attention to the role and status of women in humanitarian relief operations, as women and children make up the majority of refugees, a very vulnerable population. Various mechanisms have been created to address gender concerns, to protect women’s rights, and give females a greater voice in human rights and humanitarian issues.21 These efforts require monitoring and verification throughout the peacebuilding process and long after it has departed. At each step, fact-finding missions composed of a balanced staff of locals and internationals can research the range of transitional justice options in a given society, provide recommendations, suggest priorities through a cost-benefit analysis of each mechanism, and prepare for unforeseen difficulties. Dialogue with the local sovereign body (often called a national council) and civil society groups will enhance the conduct and appropriateness of these institutions and improve the likelihood of a meaningful process of accountability. If practitioners do not actively cultivate a broad public support across multiple constituencies through accurate public opinion surveys or even a nationwide referendum, or do not design mechanisms with serious local input,

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peacebuilding and transitional justice will likely fail. Compromises from a position of parity will enhance opportunities for success. The international community must not haphazardly introduce a transitional justice scheme without consulting each constituency and considering its ramifications. Care must be taken since tribunal and truth commission may compete for the same donor resources and these linkages may create unwelcome bureaucracy and competing channels of authority. The inclusion of transitional justice is not without its costs at this stage as well. An inclusive accountability regime that includes great power patrons could reduce animosity toward any hegemonic actor, though key states may avoid peacekeeping, in part fearing that soldiers may face an overly scrutinizing court. Great powers provide few peacekeepers, but much of the peacekeeping budget; their goodwill and support are essential. These dilemmas reinforce the need for comprehensive fact-finding missions and an official report on the conflict and the role of outside actors if support for trials dissipates. To expand the expectations of the local community, and then burst those hopes through more failures is irresponsible. Pragmatism is a virtue; institutions should be created only with sufficient political will to carry out the mandate. Tailoring internationally designed and funded institutions to distinct cultures and socioeconomic realities is paramount. Any investigative commission should include a broad swath of domestic public opinion and incorporate indigenous methods of conflict resolution and transitional justice when appropriate. Where applicable, customary justice can serve as an alternative dispute resolution technique and lessen the burden on the formal court system or other official processes. Thus, war crimes tribunals and truth and reconciliation commissions that adopt a hybrid or mixed format, recognizing domestic conceptions of justice and reconciliation (whether punitive or conciliatory) along with international human rights standards, should be more successful. Since domestic courts lack impartiality and resources, a hybrid tribunal in tandem with a truth and reconciliation commission can be a productive formula to administer justice and begin the process of reconciliation. Both East Timor and Sierra Leone saw the maintenance of traditional justice alongside hybrid courts and truth and reconciliation commissions. Half-hearted trials that fail to prosecute notorious criminals are pointless; perhaps truth commissions are all that can be mustered. If the United Nations has complete authority, few excuses for failing to properly plan these elements are justified. In East Timor, Sierra Leone, and now Cambodia, the United Nations tailored hybrid tribunals to the local court system in a tantalizing step toward blending

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international human rights standards within a domestic context; unfortunately, the practice was less promising, in East Timor, little forethought and almost no planning took place. In the final analysis, any design should include local input for local consumption to build local capacity. The United Nations itself recognized this challenge, reporting, “We must learn to eschew onesize-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations.”22 In this sense, practitioners need to adopt a future-oriented viewpoint, not simply seek to rectify past wrongs, but to focus on the long-term needs of the society while recognizing the resultant demographic changes. Ultimately, local actors will be responsible and must be allowed the freedom to make their own decisions. Phase 3: The Establishment of Security

The establishment of a secure environment is essential to conduct elections and begin the transition from emergency relief to long-term socioeconomic development. Peacekeepers are tasked with many obligations: supervising cease-fire agreements, regrouping and demobilizing armed forces, destroying weapons surrendered in disarmament, designing and implementing demining programs, and frequently coordinating with NGOs and IGOs to deliver humanitarian assistance and relief. To accomplish this goal, the position of a lead country is important; regional organizations may have a role to play at this phase in particular, lessening charges of nationalist affront and improving cultural affinity. The lead nation, usually a regional power, can often intervene quickly, requiring less time to coordinate forces with differing tactics, capabilities, multiple languages, perhaps incompatible equipment, and the risks of independent behavior with competing channels of authority. Whatever the force composition, planning a timely intervention can prevent or reduce atrocities, though it takes time to coordinate command and control, tactics, rules of engagement, etc. A robust military and intelligence role by capable states using satellite imagery, information intercepts, jamming radio transmissions, or deploying covert special forces could have disrupted militia activity and eliminated much of the threat and ensuing destruction wreaked by spoilers in East Timor’s post-referendum period. Fulfilling UNAMET requests to canton the TNI prior to the referendum would have greatly reduced the violence; Indonesian police did little to investigate reports

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of abuse, especially by the Kopassus or the Strategic Reserve Command (Komando Strategis Angkatan Darat, Kostrad). Mandating peacekeepers to apprehend war criminals risks becoming too deeply involved in the substance of the dispute and could result in open attacks on the blue helmets. In a hostile situation, particularly in cases without a peace agreement or national consent, expectations must be tempered, but as soon as offensive operations cease and stability is achieved, investigation teams should begin to gather evidence and take statements. Peace operations should make every effort within the mandate to gather, or at least not to destroy, evidence for future trials or submission to a truth and reconciliation hearing. Mandates should allow and encourage peacekeepers to assist investigators and forensic experts to search for mass graves and help to identify perpetrators through community dialogue. Separate investigation teams from third states that were not party to the conflict could be included in the deployment, along with local persons untainted by past associations who can communicate with witnesses to help collect information. Thus, properly trained civilian or military police (MPs) should follow in the wake of the frontline peacekeepers’ sweeps to make arrests. Apprehending war criminals was not attempted in Cambodia since the Khmer Rouge was party to the peace agreement, nor was collecting evidence for future trials since transitional justice was not part of the mandate. In East Timor, INTERFET, acting with UN authorization and Indonesian consent, did an admirable job of retrieving bodies and remains, recovering more than 200 bodies, identifying mass graves, and even detaining 30-50 militia suspects. Yet since INTERFET was a temporary force and was not deployed to conduct an investigation, it may have compromised some evidence while numerous perpetrators escaped across the border since security forces were not instructed to seize such instigators.23 A preferred model may be the 2003 British intervention in Sierra Leone, which effectively stabilized extremely dangerous circumstances while managing to arrest rebel leader Foday Sankoh. No matter the tactic employed, the initial security deployment presents the best opportunity to capture key suspects, particularly in situations when an authorized court has already issued indictments. Of course, trials in an uncertain security environment could spawn even greater retribution as occurred in Kosovo during UNMIK’s hybrid court process. Phase 4: Postconflict Institution-Building

Peacebuilding cannot be considered the final step in the Agenda for Peace process, following a secure agreement and after blue helmets

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have solidified peace; rather, peacebuilding must be adaptable to the possibility of renewed violence. If the international community adopts transitional justice mechanisms in a given postconflict society, such institutions should be integrated into a UN peacebuilding mission and properly sequenced to gain maximum effect. To attempt such efforts afterward or separately is meaningless, if not foolish, risking an upset of the status quo. The most effective system builds formal relationships and coordinates between tribunals and truth and reconciliation commissions to maintain incentives for victims and perpetrators to participate. A continuum exists across the range of choices: elections need the return of refugees, refugee return needs coordination with a reconciliation forum, a functioning justice procedure encourages perpetrators to choose a reconciliation and social reintegration process, and jobs are needed upon return to prevent a resurgence of violence. Modern warfare frequently targets civilian populations, employs irregular forces, and results in massive population displacement, whether internal or across borders; the return of refugees and displaced persons and the initiation of a reconciliation process is a fundamental first step toward social stability. Three factors need to be addressed as refugees return home: (1) economic opportunity, often land reform, and perhaps new property laws; (2) reintegration of former combatants; and (3) reconciliation throughout the society. Fighters quickly lose their social status and former combatants may use violence to express grievances, exert control over territory and resources, or punish their opponents.24 As a result, returning militants to civilian life, offering positions with comparable prestige, and training new security forces are crucial to the establishment of stability.25 A reconciliation process can ease the safe return of refugees and IDPs and provide an incentive for potential spoilers or insurgents to participate in the ‘new country;’ in fact, one of the three tenets of the CAVR’s moniker was “reception,” i.e. the welcoming back of refugees from West Timor and abroad. The return of refugees should be integrated with community reconciliation at this phase, thereby encouraging societal regeneration and mitigating fears of revenge attacks by those in refugee camps. Likewise, the reintegration of former soldiers and guerrillas can be linked to this reconciliation process, while finding avenues that encourage fighters to re-enter a peaceful civil society. Unfortunately, the international community was slow to facilitate the reconciliation commission in East Timor and drew few linkages between it and the tribunal. The initiation of a reconciliation process is more effective if potential participants know that trials are looming. Testimony before a

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truth and reconciliation commission may be used as evidence for a criminal trial and thereby integrated into a comprehensive war crimes regime or may be explicitly restricted from the legal process. Sharing information between the two can be problematic regarding confidentiality of witnesses and protecting the due process rights of the accused, as commissions commonly have a lower burden of proof and weaker evidentiary standards than courts. Perpetrators may not testify at a truth commission if they risk prosecution at a tribunal unless amnesty is offered, likewise such testimony could potentially undermine criminal investigations. Advisers at the CAVR felt that a functioning justice system was essential; otherwise, perpetrators would be reluctant to testify and forego their de facto amnesty.26 Since the tribunal was formed first, some potential returnees feared arrest, detention, and trial, or even punishment beatings, and decided to forego such a risk. Fears promoted by militia leaders in refugee camps that those who had participated in the sacking of East Timor in 1999 would be met with retaliatory acts of violence upon returning to their former villages caused serious apprehension. Not surprisingly, claims that the children of ex-militia members were harassed in schools upon their return caused concern. These trepidations proved to be misplaced; little violence met the arrival of returnees under the watchful eye of UN peacekeepers and international and domestic police. After the Serious Crimes Unit began to issue indictments and conduct trials, more ex-militia members sought to avoid legal punishment and opted for the CAVR process.27 The community, and even many victims, accepted the return of perpetrators, and frustrations were minimal due to the work of the CAVR and Special Panels for Serious Crimes, though antagonisms resurfaced in part due to misplaced priorities. Owing to the novelty of parallel institutions, the proper mutually beneficial arrangement has yet to be fully grasped. In East Timor, actual coordination was limited to a narrow aspect of each mechanism. Individual petitions for a CAVR reconciliation hearing were first vetted with the Serious Crimes Unit, which determined the severity of the crime. If the prosecutor’s office deemed a crime serious, it could indict the perpetrator. Between October 2002 and February 2004, the court received 1,541 statements from the CAVR; in 85 cases, the Serious Crimes Unit stopped individuals from entering into ‘community reconciliation agreements’ (CRA) due to suspected participation in serious crimes. Of these, 18 were indicted and five were later returned to the reconciliation program.28 Although these cases were retained by the Office of the General Prosecutor, none were tried since the court process was about to conclude.29 If the charge was determined to be less serious,

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the CAVR took over the process; 32 cases were adjourned as they were later deemed to be serious offenses or the deponent was refused by the community. Those who experienced ‘lesser crimes’ (kickings, beatings, and the destruction of homes and personal property) may not have believed ‘lesser’ to be the appropriate terminology, yet a definite distinction separates these abuses from massive atrocities such as murder, forced deportation, and other crimes against humanity. At the end of the reconciliation process, the fate of the perpetrator was in the victim’s hands. If victims forgave the offender, who then observed the community reconciliation agreement, the offender was no longer subject to criminal legal proceedings; however, if victims did not accept the result of the reconciliation process, they maintained their right to take criminal action through the courts. The greatest weakness of this lack of coordination was the inequity of the outcome, which caused significant resentment. The least responsible culprits, those Timorese that partook in lesser crimes, participated in the reconciliation process, while few of those who committed serious crimes, and none of the major perpetrators, faced accountability at all. Phase 5: The Departure and Future Preparations

When imagining the future, one must remain mindful of several contemporary realities: government corruption is ever-present, budgetary constraints undermine fleeting support for the implementation of justice and reconciliation, and the materialism and consumption of the film, music, and fashion industries, among others, may be more seductive Western values than the notion of human rights and the separation of powers. During the emergency period and into the transition interval, money and resources are usually abundant and local goodwill is strongest when psychological effects imply that internationals have come to the rescue. Afterward, financing is in short supply, while failures and the presence of new alternatives diminish those positive attitudes.30 In Cambodia, people were happy to have survived and many of the villains still permeated society; with Indonesia’s flight, the population was more triumphal in East Timor and therefore more critical of missteps and anxious for independence. Yet true peacebuilding requires a minimum duration of 10-15 years in most instances, seeking a consistency of personnel even as the mission comes to a close. Temporary trusteeship status may better guarantee an international commitment, but is problematic as a colonial artifact. However belatedly, the United Nations made a wise decision to extend its presence in East Timor, deliberately drawing down through three

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follow-on missions, UNMISET, UNOTIL, and UNMIT, which ensured modest stability over nearly a decade. In practical terms, the long-term maintenance of peace, justice, and reconciliation requires public policies that empower organizations to promote and nurture these values, opportunities to escape poverty, and educational materials that promote tolerance and human rights. Peacebuilding is not designed to construct or deconstruct national identity and received myths, either directly or implicitly through textbooks and public media, and the design of a curriculum is fraught with dangers, such as imposing a hegemonic narrative, particularly if the impetus is from former colonial powers or self-interested actors that dominate the international intervention. Nevertheless, revising textbooks was vital in post-World War II Germany and Japan (and vigorously contested in the latter), and is necessary in the postconflict societies where the United Nations seeks to rehabilitate society. An endeavor to better address the dangers of nationalism and the potential fissures in a common identity that may cause renewed violence is a forgotten element, reflecting the lack of expertise on the part of international staff toward the subject country. This dilemma reinforces the need for the United Nations to hire more anthropologists and linguists with area expertise to work alongside a wide spectrum of local actors to catalogue oral histories and documented evidence to not only describe the recent violence but the history of the nation and its peoples. Similarly, training local teachers through a relatively rigorous certification program that emphasizes both a balanced approach to explaining historical political violence and the contemporary social divisions is essential and grossly under-prioritized by the United Nations. A large-scale oral history documentation project could both preserve indigenous knowledge and customs and inclusively catalogue a diverse range of viewpoints toward East Timorese history. At the same time, curriculum must incorporate instruction in practical basic skills that relate to daily life, akin to the U.S. Future Farmers of America, perhaps forming a chapter of Future Farmers of Timor-Leste (FFTL). Vocational training is imperative and the ability to tutor effective horticulture strategies is at a premium. More resources should go to primary and secondary education as a component of the reintegration of the displaced and jobless, particularly young men, as student or teacher. Ownership of the process is important for successful transitional justice and a widespread public media campaign that informs all segments of society, particularly the poor and rural majority that lack access, about each mechanism and its progress at every step of the way can augment local support. The conditions of ownership are important:

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what media is used (newspaper, radio, television, internet), where it is distributed (urban/rural), who has access, and what is the public’s response. Media dissemination and public outreach should be tailored to economic and demographic realities and an educational and informational campaign can explain the constraints faced by justice and reconciliation mechanisms, such as those that prevented Indonesians from being brought to trial. Both the CAVR and Serious Crimes Unit needed to improve outreach on the conduct and progress of their work to maintain public support, particularly the latter. Trials establish a public record of the facts for specific events and crimes and present a rich resource for later utilization. Therefore, trials should be conducted in the local language with thorough explanations for all participants of the purpose and meaning of the proceedings. If resources are available, all records must be translated into the local language, and into English and other languages if possible. A hybrid model may yet be appropriate when designed for a local audience and made understandable to the broader community. The truth component of the TRC is in reality separate from the reconciliation process, and the final report of a truth commission is more readily usable as an important pedagogical and instructional tool, especially in a long-closed society with a decimated educational system. Supplemental research can be important where feasible; court observers and audiences, witnesses, and if possible victims and perpetrators should be interviewed to ascertain their opinions and perceptions of events and debriefed on the results and purpose of each procedure. In returning to the metaphorical allusion of a medical scenario in the introduction, one could assert that these “misdiagnosed” Western prescriptions did not kill the patient and probably did little tangible harm. Since the initial crisis intervention that found the recipient placed into the intensive care unit during the emergency period, practitioners upgraded their prognosis from critical to stable condition and temporarily released the patient. Yet the occasional outbreak of inflammatory symptoms resulted in a few follow-up house calls, so rare in the modern world, demonstrating a rather firm commitment to wellness, if not hope for a full recovery. Notes 1. Bratt, “Peace Over Justice;” Cousens and Jumar, Peacebuilding as Politics; Doyle and Sambanis, Making War, Building Peace; Durch, Twentyfirst Century Peace Operations; Reychler and Paffenholz, Peacebuilding; and Jeong, Approaches to Peacebuilding.

Connecting Peacebuilding and Transitional Justice 231

2. Boutros-Ghali, An Agenda for Peace. 3. United Nations, Report of the United Nations Panel on Peace Operations. This report is commonly called the “Brahimi Report” after its principal author Lakhdar Brahimi, Chairman of the Panel on United Nations Peace Operations. United Nations, Report of the Secretary-General on the implementation of the report of the Panel on United Nations Peace Operations. 4. See Teitel, Transitional Justice, p. 47. 5. Ibid., p. 3. 6. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, 23 August 2004. 7. See Woodhouse and Ramsbotham, Peacekeeping and Conflict Resolution for a discussion of the relationship between conflict theory, peacekeeping, and conflict resolution. 8. Putnam, “Human Rights and Sustainable Peace,” p. 244. 9. See Michel Foucault on gouvernementalité, the notion that people are governed by the ideas and values of the times that translate into the physical environments (milieux) built by a given society, forming a system of governance. Michel Foucault, Discipline and Punish : The Birth of the Prison (New York, NY : Vintage, 1995 [1975]) 10. Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 23 October 1991. 11. Teitel, Transitional Justice, p. 53. 12. Schabas, Introduction to the International Criminal Court, p. 121. 13. Huntington, The Third Wave. 14. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, 23 August 2004. 15. S/1999/836, United Nations Security Council, Seventh Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, 30 July 1999, par. 7. 16. Cousens and Jumar, Peacebuilding as Politics. 17. MacAlister Brown and Joseph J. Zasloff, Cambodia Confounds the Peacemakers, 1979-1998 (Ithaca, NY: Cornell University Press, 1998), p. 271. 18. A/55/305-S/2000/89, Report of the United Nations Panel on Peace Operations, 21 August 2000. 19. Call and Stanley, “Civilian Security,” p. 315. 20. Putnam, “Human Rights and Sustainable Peace,” p. 253. 21. Marshall, “Women in War and Peace,” p. 18. These include UN Special Rapporteurs on Violence Against Women, inclusion of rape as a war crime under the ICC’s Rome Statute, the policies of the World Food Program and UNICEF, as well as the UN Commission on the Status of Women. 22. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies, 23 August 2004. 23. Sean O’Connell, “Interfet Military Police Operations,” in Lansell Tandevin and Jefferson Cox, eds., East Timor: Making Amends? Analysing Australia’s Role in Reconstructing East Timor (Sydney, Australia: AustralianEast Timor Association/Otford Press, 2000), pp. 1-2. 24. Call and Stanley, “Civilian Security,” p. 306. 25. Joanna Spear, “Disarmament and Demobilization,” p. 146. 26. Dwyer, interview by the author. 27. Ibid.

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28. Ibid. Yet the courts were slow, by as much as two years, to formally issue the agreements which provided immunity from future civil or criminal prosecution. See also Hirst, Unfinished Truth, p. 105. Regulation 2001/10 originally provided that “in no circumstances shall a serious criminal offence be dealt with in a Community Reconciliation Process” it was since amended by UNTAET Directive on Serious Crimes No. 2002/9 of 18 May 2002, to read “in principle, serious criminal offences, in particular, murder, torture and sexual offences shall not be dealt with” by a CRP. 29. Serious Crimes Unit website, http://www.scu-Dili.org. 30. Holloway, interview by the author.

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Index Asian Development Bank (ADB), 107 Asian Financial Crisis, 51, 141, 183 Asia Foundation, 114, 125, 153, 199 Asia Pacific Economic Cooperation (APEC), 54 Association of Southeast Asian Nations (ASEAN), 46, 49, 54, 72-73 Atoni, 39-40, 42 Australia, 30, 37-38, 50, 71, 114-115, 142; Ausaid, 71; intervention in the region, 13, 29, 54, 142; military presence in Timor, 62-63, 68, 99-101; as part of peacebuilding mission, 59, 64, 72-73, 98, 147, 163; petroleum resources in Timor, 106-107, 142, 159; relations with Indonesia, 46, 51-52, 72, 158-160, 177, 198; World War II role, 4243

Aceh, 46-47, 50, 142, 195, 212 Act of State doctrine, 18 ADB. See Asian Development Bank Adelman, Howard, 74 Aditjondro, George, 41 Afghanistan, 24, 88 Alatas, Ali, 197 Alkatiri, Mari, 45, 83, 99, 107, 116 Alves, Jacinto, 76, 149-150, 195 Amaral, Xavier do, 44-45, 83 Amin, Idi, 7 Amnesty: CAVR policy on, 150, 227; CTF policy on, 182, 184, 197; for militias, 139; trade-offs of, 7, 18-19, 137, 151, 167, 218-219, 227 Amnesty International, 136, 148 Angola, 6, 12, 194 Annan, Kofi, 9, 13, 52, 54, 140, 146, 148, 183, 213 APCET. See Asia-Pacific Coalition on East Timor APEC. See Asia Pacific Economic Cooperation Armed Forces for the National Liberation of East Timor (FALINTIL), 48-49, 73, 83, 97, 138, 150, 173, 187 Asia-Pacific Coalition on East Timor (APCET), 51 Asia Pacific Economic Cooperation (APEC), 54 Apodeti. See Timorese Popular Democratic Association Aráujò, Father Jovito, 108, 149 Argentina, 22-23 ASDT. See Timorese Social Democratic Association ASEAN. See Association of Southeast Asian Nations

Babo-Soares, Dionísio, 145 Balibo, 5, 51 Barbie, Klaus, 21-22 Bashir, Omar al, 22 Belo, Bishop Carlos Ximenes, 51, 148, 183 Bernardita, Sister, 69 Boaventura, Dom, 99-100, 110111 Bosnia, 9, 12-13, 27, 29, 218 Boutros-Ghali, Boutros, 13, 15, 213, 220 Brahimi, Lakhdar, 87, 213 Brazil, 42, 61, 70 Britain, 23, 59, 67, 119, 159160, 171, 198 Burton, Cynthia, 95

245

246 Index

Burundi, 24 Bush, George W., 142 Caetano, Marcello, 43 Calley, William, 21 Cambodia, 6, 40, 194; peacekeeping operation, 12, 27, 73, 89-90, 221, 228; tribunal, 9, 17, 23, 141, 217218, 223, 225; UNTAC, 12, 73, 89 Carnation Revolution, 43 Carnegie Commission, 14 Carrascalão, Mario, 44, 115116, 199 Catholic Church: civil society and, 44-45, 89, 91, 118, 156; historic role, 40-41; international role, 50; Timorese identity and, 48, 67, 92, 109-111, 119, 145 Catholic Relief Services, 68-69, 88 CAVR (Commission of Reception, Truth, and Reconciliation), 160, 194; budget of, 161, 163; commissioners, 149-150, 163, 190, 195; dissatisfaction with, 136, 163, 180-181, 190, 230; domestic support for, 76, 156, 160, 165, 178, 180181, 186, 195, 201; final report, 45-46, 158, 160, 180, 186, 192, 197-198; mandate, 144, 150, 152; public hearings, 176-178; reconciliation component, 179-180, 198, 201; relationship with tribunal, 163, 226-227; traditional mediation and, 150, 152, 156, 163, 179, 212 Ceauşescu, Nicolae, 6 Cédras, Raoul, 7 Central African Republic, 22 Chile, 9-10, 23-24, 166 China, 119, 141-142 Chomsky, Noam, 50

Civil society, 4, 77-89, 226; in East Timor, 89, 115, 118, 136, 176; in Indonesia, 7980, 156; in non-Western societies, 75, 79-80, 85, 216; in peace operations, 59, 67, 85-89, 139, 149, 155, 213, 219, 222; relationship to state, 16, 79, 213 Clinton, Bill, 236 CNRM. See National Council of Maubere Resistance CNRT. See either National Council of Timorese Resistance or National Congress for Timorese Reconstruction Commission for Truth and Friendship. See CTF Commission of Reception, Truth, and Reconciliation. See CAVR Cohen, David, 169 Congo, 22 Cosgrove, Peter, 59 Costa, Filipe da, 111 Costa, Francisco Borja da, 116 Crimes against humanity, 17, 22, 26, 28-29, 117, 168, 216; charges of, 132-133, 146-147, 157-159, 169-172, 174, 176, 182, 194, 217, 219; in East Timor, 37, 127, 180; elements of, 20, 228; responses to, 3-5 CTF (Commission for Truth and Friendship): budget, 163; commissioners, 190; conduct of hearings, 167, 181-183, 197; dissatisfaction with, 156, 167, 182-183, 186; final report, 183-184, 186-187, 192; mandate, 150, 160 Cuba, 89 Customary justice. See traditional mediation Damiri, Adam, 148, 167, 169, 197

Index 247

Đinđić, Zoran, 164 Drake, Christine, 143 Duch, 218

86, 113; formation of, 44, 48; governance, 89, 115-116 Frigaard, Siri, 182

East Timor Action Network (ETAN), 51 East Timor Defense Force (FFDTL), 97-99 East Timor Transitional Administration (ETTA), 85 Eichmann, Adolf, 17, 21, 23 El Salvador, 10, 12, 24-25, 106; United Nations Observer Mission in El Salvador (ONUSAL), 12 Elections: in peace operations, 12, 15-16, 59, 77, 79, 118, 138, 214, 222, 224, 226; results in East Timor, 28, 30, 43, 61, 62, 83-85, 93, 100, 113, 116-117, 183 ETAN. See East Timor Action Network Ethnic identity: resurgence of, 16; in Indonesia, 46-48, 80; in peace operations, 59, 75, 108, 113, 216, 229; in Timor, 41-42, 48-49, 108113, 118-119 ETTA. See East Timor Transitional Administration European Union, 163

Galtung, Johan, 8 Garzon, Balthazar, 23 Gender: in international law, 20, 43, 175; in peace operations, 16, 64, 90, 9294, 102, 215, 220, 222; peacekeepers and women, 64, 66, 68; rape as sexual crime, 20, 37, 45, 91, 130, 153, 175, 184, 190-191; in Timorese society, 69, 91, 93, 139, 189-190; in transitional justice, 150, 153, 175, 182, 184, 189191, 199; violence, 21, 45, 54, 93, 160, 178, 181, 191; women in parliament, 93 Geneva Conventions, 20, 22 Genocide, 8, 16, 22, 26-28, 141, 147, 157, 161, 182, 216, 218-219; East Timor and, 159-160, 172, 175; Genocide Convention, 20 Germany, 10, 17, 21, 24, 128, 214 Giguiennto, Deng, 69 Gonçalves, Francisca, 177 Governance, 4; in peace operations, 12, 55, 59, 68, 77-83, 85, 90, 138, 214-215; in Timorese society, 77-83, 94, 96, 118-119, 175, 192193 Graydon, Carolyn, 97, 103 Guatemala, 10, 12, 24-25 Gultom, Hulman, 169 Gunn, Geoffrey, 113, 119 Gusmão, Alexandre, 80 Gusmão, Xanana, 40, 100-101; election of, 83-84, 116; resistance and, 48, 115, 178, 199; transitional justice and, 92, 139, 150, 156, 167, 170, 175-176, 183-184, 192, 195

FALINTIL. See Armed Forces for the National Liberation of East Timor F-FDTL. See East Timor Defense Force Fiji, 82, 148 Fokupers, 68, 136, 175, 187, 190 Ford, Gerald, 45, 159-160 Fox, James, 115 France, 13, 21-22, 160, 198 FRETILIN (Revolutionary Front for an Independent East Timor); civil war, 45, 50, 54, 138, 150, 158, 180, 198-199; elections, 83-84,

248 Index

Guterres, Eurico, 137, 167, 170, 183, 197-198 Habibie, BJ, 50, 52, 54, 182183, 197 HAER. See Humanitarian Assistance and Emergency Rehabilitation Hague Conventions, 8 Haiti, 7, 13, 18, 27, 29 Hak Foundation, 87, 159 Hasegawa, Sukehiro, 61 Hayner, Priscilla, 23-24 Hirohito, 7 Hirst, Megan, 183 Hohe, Tanja, 152 Holbrooke, Richard, 218 Holloway, Richard, 68, 88, 98 Holsti, Kalevi, 79 Howard, John, 46, 142 Human rights: accountability, 9-10, 23-24, 49; and culture, 179, 189-190, 199; in East Timor, 90-92, 137-139, 146148, 155-156; as global norm, 3, 7-8, 12-13, 22-23, 26-27, 49, 140, 201, 214; in nation-building, 14, 59, 75, 79, 140, 195, 216, 228; NGOs, 28, 50, 68, 80, 90, 134-136, 139, 148, 184, 189; in peacebuilding, 16, 27, 77, 89-92, 118-119, 214, 216-224, 229; in transitional justice, 17-20, 25, 153-154, 164, 169, 181-182, 184, 200, 213, 217-224 Human Rights Watch, 136, 148 Humanitarian Assistance and Emergency Rehabilitation (HAER), 71 Humanitarian intervention: in East Timor, 28-29, 50, 59, 68-69, 72-73, 139, 211; norm of, 3, 7, 13, 15, 67, 118, 140; practice of, 11, 13, 26-27, 65, 141, 225 Huntington, Samuel, 218 Hussein, Saddam, 6

Hybrid courts: conduct of in East Timor, 128-134, 152, 168, 170-177, 192; creation of in East Timor, 147, 155; examples of, 9-10, 17, 21, 141, 218, 225; in tandem with TRC, 17, 20, 27, 223, 227; strengths of, 23, 157, 161, 164, 197, 200, 217, 230 ICT. See International Center for Transitional Justice ICTR. See International Criminal Tribunal Rwanda ICTY. See International Criminal Tribunal Yugoslavia Indonesia, 1, 37, 40, 42, 49, 72, 78; aid to Timor, 86, 110; crimes against humanity by, 45-46, 51-55, 72, 93, 141, 148, 158-160, 166, 178, 180, 184, 196-198; conditions in, 37, 51, 86, 92, 104-105, 142, 158, 195-196; contemporary relations with East Timor, 181-184, 192, 200, 212; courts of, 146148, 155, 160, 163-165, 168-170, 190, 200; decision to withdrawal from East Timor, 14, 29, 52-55, 225; invasion of East Timor, 3738, 43-46, 50, 108-109, 112, 127, 160; military of (TNI), 1, 45-48, 51-52, 59, 71-73, 93, 133, 141, 148, 150, 169, 176-177, 182, 184, 195, 212, 224; and national integration, 46-48, 50, 79, 111; occupation of East Timor, 37, 39, 41, 44-46, 49-50, 59, 75, 80, 96, 100, 114-117, 127, 160, 224; ongoing threats by, 60, 74, 94, 97-98, 138-139; opposition to transitional justice, 137, 143, 150, 156, 167-170, 175-176, 196-199, 212, 218, 230; withdrawal

Index 249

from East Timor of, 30, 37, 52-55, 59, 70, 72, 127, 160, 193, 228 Internally Displaced Person (IDP), 53, 62, 71, 75, 91, 99, 100, 102, 113, 175, 226 International Center for Transitional Justice (ICTJ), 136, 154, 156, 191 International Criminal Court (ICC), 8, 9, 22, 137, 142, 217-218 International Criminal Tribunal Rwanda (ICTR), 9, 17, 20, 22, 141, 161, 163 International Criminal Tribunal Yugoslavia (ICTY), 9, 17, 22, 161, 163, 164, 218 International Federation for East Timor (IFET), 51 INTERFET (International Force East Timor), 13-14, 54, 59, 61, 71-73, 94, 171, 225 International Military Tribunal (IMT), 17, 20 International Military Tribunal Far East, 17, 20 International Monetary Fund (IMF), 51, 54, 107, 183 International Organization for Migration (IOM), 74 Interpol, 165, 176, 219 Ireland, 163 Islam, 41, 44, 47-48, 109-110 Ivory Coast, 13 Japan, 61, 71-72, 142, 148, 157, 163; Japan International Cooperation Agency (JICA), 71; World War II role, 7, 17, 43, 111, 139, 214, 229 Jardine, Matthew, 109 Jemaah Islamiyah, 142 Jesuit Relief Services, 74 Judicial System Monitoring Programme (JSMP), 133, 164, 174

Justice: constituencies for, 127128, 134-143; culture and, 2, 25, 67, 75, 128-134, 143145, 152-156, 161, 164-166, 179, 186-192, 212; definitions of, 6-11, 25-26, 134, 152-156, 170, 175-176, 197, 200; in peace operations, 70, 91, 102, 161, 192-196, 214, 226-227; trade-offs of, 3-6, 17-20, 151, 168, 215-218 Kambanda, Jean, 9, 22 Karadžić, Radovan, 17, 218 Kenya, 24 Khare, Atul, 61, 64 Kingsbury, Damien, 113 Kissinger, Henry, 45, 160, 198 Kopassus, 1, 45-46, 167, 225 Kosovo, 9, 12, 13, 27, 215, 225; UNMIK, 27, 225 Kostrad, 225 Language: in peace operations, 2, 65, 69, 87, 97, 108, 193, 221, 224; in Timor, 38, 4144, 48, 111-112, 114-115, 173, 185; in transitional justice, 132, 143, 151-152, 184-186, 190-191, 201, 230 Leach, Michael, 113 Liberia, 9, 218 Lobato, Nicolau, 44-46, 194 Lobato, Rogerio, 45, 101, 116, 194 Lopes, Aniceto Longuinhos Guterres, 149-150 Los Santos, Jaime de, 73 Lu Olo, 84, 113, 115 MacArthur, Douglas, 7 Macau, 43, 103, 119 Makarim, Zacky Anwar, 183, 197 Malaysia, 37, 72, 82, 99, 194 Marcos, Ferdinand, 7, 18 Marshall Islands, 82 Martin, Ian, 59, 61, 182 Martins, Paulo, 99-100

250 Index

McKay, Susan, 189 Media: and intervention, 12-13, 50-51, 76; in peace operations, 93; in Timor, 80, 92, 98, 165, 177; in transitional justice, 151, 154, 164-165, 196, 229-230 Merry, Sally Engle, 80, 143, 193 Mestiço, 41, 109, 113 Militia: Ablai, 54, 173; Aitarak, 137, 170; Alfa, 183; behavior of, 131, 133, 137139, 167, 173-174; crimes by, 45, 52-54, 71-74, 94, 9798, 148, 191, 197-198, 224225; Merah Putih, 1, 131; and transitional justice, 165, 170-171, 177-180, 182-184, 187, 194, 198, 215, 227 Millennium Development Goals (MDGs), 112 Milošević, Slobodan, 9, 164 Monteiro, Longuinhos, 163, 176 Moon, Ban-ki, 182 Mozambique, 12, 50, 114, 116 Mussolini, 6 Namibia, 12 Nascimento, Bishop Basilio do, 139 National Council of Maubere Resistance (CNRM), 48 National Council of Timorese Resistance (CNRT), 54, 112 National Congress for Timorese Reconstruction (CNRT), 84, 86, 116 Netherlands, 22, 41-42, 46-47, 67, 109, 171 New Zealand, 54, 99, 163 Nicaragua, 12 Niner, Sara, 116 Niumpradit, Boonsrang, 54, 73 Nobel Peace Prize, 51 Norway, 107, 163, 193 Nuremberg Principles, 7, 20 Nyerere, Julius, 7

Office for the Coordination of Humanitarian Affairs (OCHA), 71 Oliveira, José-Luis, 87, 159 Panama, 7, 18 Papua New Guinea, 37, 86, 92, 104-106, 114, 142 Peace: constituents for, 137; culture and, 67, 190; definition of, 4-8, 16, 145, 152-153, 212; trade offs of, 17-18, 168, 215 Peacebuilding: foundation of, 11-16; links to transitional justice, 26-28, 213-230 Peacekeeping, 142; creation of, 11-15, 29; criticism of, 64, 66, 95, 221; deployment, 72-72, 98, 215; performance in Timor, 30, 49; in practice, 26, 71, 213, 215, 223-225, 227 Pearson, Lester, 11 Perreira, Manuela, 68, 93, 175, 181 Peru, 24 Pessoa, Ana, 93 Philippines, 7, 18, 51, 69, 7273, 103 Pinochet, Augusto, 9, 17, 23 Pol Pot, 6 POLRI. See Police, Indonesian Police: Indonesian, 46, 59, 97, 148, 177, 180, 182, 184, 197, 224; international, 6162, 64, 68, 73, 84, 94-95, 100-101, 147, 162; in peace operations, 13-14, 16, 79, 90, 96, 214, 221-222, 225, 227; Timorese, 91, 94, 97100, 153, 169-170, 189 Portugal: in CAVR final report, 160, 180, 186; colonial era of, 37-44, 51, 55, 67, 78, 100, 108-112, 114, 146, 166, 183; crimes against humanity of, 37, 42, 93, 109, 127, 158; decolonization by, 29, 43-

Index 251

44, 52, 119, 158; language of, 38-41, 44, 66, 111-112, 114-116, 132-133, 153, 173, 185-186, 193-194; and law, 133, 171-173, 194; missionaries of, 40-41, 66, 109-111; peacekeepers from, 95, 99; support for Timor by, 49-50, 52, 112 Putnam, Tanya, 216 Ramos Horta, José, 45, 50, 57, 101, 115-116; election of, 84, 99, 113; transitional justice and, 139, 194 Rawls, John, 9 Reconciliation: constituents for, 116, 134-143, 156, 175; culture and, 25, 152, 179181, 187, 199-201, 223; definition of, 9-11, 23-26, 134, 143-144, 153, 196, 200; trade-offs of, 2-6, 1819, 68, 77, 151, 212, 215, 219, 226-228 Refugees, 1, 62, 158; return from West Timor, 63, 7475, 180; return in peace operations, 11-12, 15, 29, 59, 70, 76, 117, 219, 222, 226; situation in Timor, 4, 45, 53, 72, 175, 183, 227 Reinado, Alfredo, 63, 92-93, 99-101, 192 Reintegration of ex-combatants: in peace operations, 4, 9, 11, 15, 28, 71, 96, 212, 226; reconciliation and, 19, 131, 192, 218 Relief, 27, 29, 59, 70-71, 88, 94, 102, 117, 222, 224 Remedios, Paulo, 101 Reparations, 4, 24, 146, 160, 185, 192 Responsibility to protect, 136 Ribeiro, Judith, 187 Richmond, Oliver, 15 Revenge, 3-6, 9, 18, 135, 137, 151, 156, 170, 200-201, 212, 226

Romania, 6 Rosario, Carolina do, 181 Rwanda, 9, 13, 21-22, 25-27, 29, 137, 141, 155, 160-161, 196 Sankoh, Foday, 218, 225 Sary, Ieng, 218 Saudi Arabia, 7, 18 Savimbi, Jonas, 6 Schabas, William, 218 Security: in East Timor, 52, 54, 71-74, 94-101, 117, 211214; in peace operations, 26, 49, 59-60, 70, 108, 216-217, 224-226; trade-offs of, 3-4, 8, 12, 14, 102, 138, 140, 168 Serious Crimes Unit (SCU): budget, 161-162, 174; criticisms of, 75-76, 165, 181, 185, 230; mandate of, 147, 172, 181, 227-228; performance of, 73, 141, 165, 176-177, 193-194, 197 Sharma, Kamalesh, 61, 76, 94, 102 Shihab, Alwi, 137 Sierra Leone, 9, 13, 17, 20, 23, 25, 27, 141, 218, 223, 225 Silaen, Timbul, 148, 170, 183, 197 Singapore, 103 Singh, Bilveer, 110 Smith, Michael, 72, 85, 95 Soares, Abilio, 148, 169 Socio-economic development: in East Timor, 62, 76, 101107; in peace operations, 40, 55, 59, 68, 118-119, 211212, 214, 219-220, 222, 224; trade-offs of, 8, 12, 14, 138, 140, 166 Solomon Islands, 13, 142 Somalia, 13, 27, 29 South Africa, 10, 17, 19, 24-25, 106 South Korea, 244 Soviet Union, 12, 49 Special Panels for Serious Crimes (SPSC). See also

252 Index

hybrid court; 23, 129, 133, 150, 156; composition of, 172; conduct of, 54, 136, 159-161, 165, 171-177, 190, 193, 198, 201, 227; mandate of, 152 Stahl, Max, 51 Stedman, Stephen John, 140 Sudan, 22, 217 Suharto, 45-46, 48, 50, 52, 5859, 197-199 Sujarwo, 169 Sukarno, 47-48 Sukarnoputri, 150, 176 Sword, Kristy, 199 Syahnakri, Kiki, 183 Tanzania, 7, 18, 22 Taur Matan Ruak, 99, 139 Tavares, João, 53, 198 Taylor, Charles, 9, 218 Taylor, John, 142 Teitel, Ruti, 214 Thailand, 51, 54, 72-73 Timorese Democratic Union (UDT), 44-45, 138, 198 Timorese Popular Democratic Association (Apodeti), 4445, 138, 198 Timorese Social Democratic Association (ASDT), 44 Traditional mediation, 21, 25, 28, 143-145, 184-185, 187, 193, 195, 199, 212, 223; adat, 104, 143, 153, 195, 199; dato-lulik, 40, 144; gacaca, 24-25, 161; lia nain, 40, 100, 144-145; lisan, 143-144; liurai, 4041, 53, 78, 83, 100, 110111, 113, 131, 143-145, 153; nahe biti boot, 144145, 153, 156, 179; negative views toward, 155, 165, 190, 199 Transitional justice: foundation of, 9, 16-26, 127; linked to peacebuilding, 26-28, 213230 Transparency International, 86

Truth and reconciliation commissions. See also CAVR and CTF; 10, 19-24, 28-29, 137, 143, 156-158, 185-186, 214, 217, 223, 225-227, 230 UDT. See Timorese Democratic Union Uganda, 7, 18, 22 UNAMET, 53, 59, 61, 70-72, 182-183, 224 UN Development Programme (UNDP), 65-66, 104-106, 219 UN High Commissioner for Refugees (UNHCR), 62, 66, 73, 74, 219 United States: colonial policy of, 67; dollar in Timor, 62, 98, 103; and peacekeeping, 12, 27, 139, 142; interests in Indonesia, 46, 142-143, 158; and peacekeeping, 12, 27, 139, 142; role in war crimes, 21, 25, 45-46, 159160, 177, 198; support for intervention in Timor, 5152, 54, 198; support for transitional justice in Timor, 51, 141, 148, 157, 163; and transitional justice, 7, 21, 23, 141, 171, 214, 218; USAID, 71, 76, 87, 89 Universal jurisdiction, 17, 23, 146-147, 164 UNMIK (UN Mission in Kosovo). See Kosovo UNMISET, 1, 54, 60-61, 97, 161, 229; mandate of, 77, 90, 94; peacekeepers, 95, 142; SRSG of, 61, 76, 94; and transitional justice, 161163; 176, 181 UNMIT, 54, 60-61, 64, 77, 90, 94, 102, 194, 229 UNOTIL, 54, 60-61, 90, 94, 229

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UNTAC (UN Transitional Authority in Cambodia). See Cambodia UNTAES, 27 UNTAET, 54, 60-61; mandate of, 60, 71, 74, 77, 90, 94, 102, 170; peacekeepers, 7273; performance of, 68, 70, 72, 85, 101-102, 119; and transitional justice, 129, 139, 147, 149, 171-172 UNTAG (United Nations Transitional Assistance Group). See Namibia UNTEA (United Nations Temporary Executive Authority). See West Papua UNTSO (United Nations Truce Supervision Organization), 11 Vergès, Jacques, 22 Videla, Jorge Rafaél, 22 Vieira de Mello, Sergio, 61, 6870, 172

Wahid, Abdurrahman, 137, 150, 196 Walsh, Patrick, 178, 181 West Papua, 46-47, 50, 170, 195, 212; UNTEA, 27 West Timor, 42, 44, 64; border issue with, 45, 98; militia activity in, 72, 74, 138, 198; refugees and, 180, 183, 226 Whitlam, Gough, 46, 159-160 Wiranto, 148, 196-197; indictment of, 143, 176-177; CTF and, 156, 183-184 World Bank, 88, 102, 104, 107, 219 World Food Program (WFP), 71 Yap, 82 Yugoslavia, 9, 22, 137, 141, 155, 160, 196 Yudhoyono, Susilo Bambang,150, 184 Zisk, Kimberly Marten, 67

About the Book

Did the United Nations successfully help to build a just, peaceful state and society in postconflict East Timor? Has transitional justice satisfied local demands for accountability and/or reconciliation? What lessons can be learned from the UN’s efforts? Drawing on extensive field work, James DeShaw Rae offers a grassroots perspective on the relationship between peacebuilding and transitional justice. Rae traces the effects of the political violence perpetrated in East Timor during the Indonesian occupation, as well as the UN-authorized intervention and the ultimate formulation of the rebuilding effort. In the process, he explores the results of hybrid (mixed domestic-international) tribunals and the attempt to conduct war crimes tribunals and truth and reconciliation commissions in tandem. Not least, his account of the impact of international actors working with the East Timorese to construct a new nation from the ground up suggests important policy prescriptions for all postconflict societies. James DeShaw Rae is assistant professor of government at California State University, Sacramento.

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