dili, East Timor – James Dunn didn’t want to talk about his day spent listening to harrowing stories of brutal killings.
Instead, to clear his mind, the UN special rapporteur on atrocities in East Timor took an early evening walk in Dili.
Dunn, 73, had just finished a day reviewing witness accounts of a mass slaughter of Timorese by Indonesian-backed militia members.
Though the work is exhausting, he has seen some results. Dunn, who was Australia’s consul to East Timor in 1963, is relieved that his work is paying off as mounting evidence points to direct Indonesian military involvement in atrocities.
“At least we are getting somewhere,” Dunn said. “That’s what keeps me going.”
Since Indonesia’s withdrawal from East Timor in September 1999, investigations into the atrocities have begun in earnest and some 150 suspects, from both pro- and anti-independence groups and the Indonesian military, have been identified as suspects by the UN.
The first prosecution took place Thursday, when a former anti-independence militiaman, Joao Fernandes, was sentenced by a UN court in Dili to 12 years in prison for the murder of a pro-independence activist on Sept 8, 1999.
Twelve other former militia members accused of murder are in detention in Dili, awaiting trial.
And Indonesian prosecutors who are conducting investigations into the events have named more than 20 additional suspects, including several senior Indonesian police and army officers.
While prosecution of the “foot soldiers” who carried out the orders has begun, a trial of more senior officials in Jakarta, thought to be the architects of the 1999 violence in East Timor, faces obstacles. Most importantly, human rights advocates say, justice could be compromised if the Indonesian government is unwilling or unable to thorougly investigate crimes allegedly committed by powerful members of its own security forces.
But East Timor has seen more progress than Cambodia, where after more than two decades of the fall of the Khmer Rouge regime, no one has yet been punished for the genocidal rule blamed for the deaths of more than 1 million Cambodians.
While the National Assembly and Senate earlier this month passed a law establishing a UN-assisted tribunal to try leaders of the Khmer Rouge, the government has been cautious about the trial’s scope and is adamant that the tribunal will have power to target only a modest number of “key” leaders.
Because so many people would likely be implicated, Cambodia’s tribunal will not target those who actually carried out the majority of atrocities. Instead, the trial will focus on “senior leaders” and those considered to be “most responsible” for the brutal regime.
And even the prosecution of all Khmer Rouge senior leaders is not guaranteed.
Prime Minister Hun Sen has repeatedly warned against trying Ieng Sary, the Khmer Rouge’s foreign minister, citing an amnesty granted to Brother No 3 for a 1979 death sentence and the potential of a renewed civil war if he is arrested.
Though Khieu Samphan, the public face of the Khmer Rouge, has said he would voluntarily appear before a tribunal, other surviving leaders have not made similar gestures and it is unclear what would happen if they refuse to show up in court.
Investigators in East Timor face similar hurdles in the search for justice.
In December, suspects identified by Indonesian investigators refused to appear when called for questioning by the UN and the Indonesian attorney general’s office in Jakarta.
Lawyers for the suspects, which include officers of the Indonesian security forces, said they would not cooperate with probes by the UN, citing “legal flaws” in a memorandum of understanding between the UN Transitional Authority in East Timor (Untaet) and the attorney general’s office.
While the victims of the dead wait in both countries, the politics of justice may allow the architects of two of the century’s darkest episodes to remain free.
Sergio Vieira de Mello, head of the UN’s East Timor mission, said East Timor is committed to prosecuting those who ordered the atrocities. But unlike Cambodia, investigators here are not targeting the commanders first.
Noting the difficulty in taking on the politically connected and powerful, Vieira de Mello said UN investigators in East Timor are tracing the chain of command from those who carried out the atrocities back to the people who issued the orders.
“You cannot start with the senior criminals, with the big fish,” he said. “The point that one should always keep in mind is that you never start at the top. You need to gather evidence that leads you up the control-and-command chain.”
That’s how international war crimes tribunals in Rwanda and Yugoslavia have worked, beginning at the lower levels with those who conducted the killings, which eventually led to the senior officials who directly ordered violence or consented to what took place, he said.
But, as in Cambodia, the hardest problem is making the solid links between those who carried out the attacks and those who ordered them.
Dunn said the picture in East Timor is becoming more clear with evidence emerging that shows a hierarchy of who was at the top of the command line
An Indonesian infantry colonel—the highest military rank in East Timor—has been identified as directing militia men during a September 1999 massacre in which as many as 200 people died in a cathedral in the Suai district, Dunn said.
When the investigation report is complete, as many as three Indonesian army generals may be implicated.
During Thursday’s trial in Dili, presided over by UN-appointed Italian judge Luca Ferrero, Fernandes testified that Indonesian army officers gave him a samurai sword and ordered him to kill independence supporters.
Fernandes pleaded guilty to killing village chief Domingos Pereira during a massacre in the town of Maliana near the West Timor border. More than 40 people died in the massacre, UN investigators said.
Although investigators in Dili are compiling evidence that could implicate the highest level of the Indonesian military, one international observer based in East Timor said he is skeptical the UN has the political leverage to pressure Indonesia to prosecute members of its powerful military.
Continuing unrest in Aceh and the Maluku islands poses greater problems in the Indonesian archipelago. And the UN will not further upset the balance of power in Indonesia by pushing for the prosecution of high-ranking figures or—more importantly—for crimes committed during Indonesia’s 24-year occupation of East Timor, the observer said.
In Cambodia it is the government more than the UN that is worried about upsetting political stability with a wide-ranging tribunal.
Indicting all suspects who are guilty of carrying out atrocities during the 1975 to 1979 Khmer Rouge regime would lead to too many arrests and could plunge Cambodia into chaos, government officials have said.
And while the UN is leading the East Timorese in prosecuting those guilty of atrocities in their country, Cambodia’s relationship with the UN has been rocky as the two sides push their own requirements for a tribunal. Government negotiators have wrangled with the UN since 1997 on the makeup of a Khmer Rouge trial.
The problem for Cambodian government officials is both a fear of what an internationally-led trial would uncover and a lasting bitterness toward the UN for supporting the Khmer Rouge during the 1980s, said Youk Chhang, director of the Documentation Center of Cambodia.
“It has always been clear that it is part of the reluctance of the government because of the political conflicts between the UN and the current government.” he said.
But with the passing of the Khmer Rouge draft law, a trial of some fashion will take place, even if it has taken two decades, said Youk Chhang. And Cambodia, he said, will finally see some closure to the nightmare of the Khmer Rouge regime.
As seen in Cambodia, Vieira de Mello said there is a direct relationship between justice, reconciliation and democratization in nations that have suffered systematic atrocities. If past horrors are not dealt with, he said, then they continue to exert a negative influence on the present.
To heal wounds of the past, a truth and reconciliation commission will also be initiated in East Timor, similar to the commission in South Africa after the end of apartheid.
The East Timor commission is meant to provide some justice and closure for the victims of violence committed during Indonesia’s occupation.
But unlike South Africa, there will be no pardons for serious crimes. Those found responsible for cases or rape, murder and torture will go to trial.
“Justice is so important,” Vieira de Mello said. “It is impossible and inadvisable to forget the past. You cannot forget the past…. But you cannot remain overly focused on the past [either].”
While there are no plans for a truth commission in Cambodia, there is at least some form of justice in sight for the victims of the Khmer Rouge, said Youk Chhang.
“What happened to us under the Khmer Rouge regime is impossible to forget,” he said. “We need to close the chapter so there is a healing process. So that we can [reconcile] what happened and move on.”
