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Getting away from the responsibility to prosecute!

Joint Statement on the Truth and Friendship Commission - December 27, 2004

1. In response to the proposition for the establishment of a UN Commission of Experts, on Tuesday, December 21, 2004, the Governments of Indonesia and Timor Leste declared the establishment of bilateral Truth and Friendship Commission (TFC). Marty Natalegawa, Spokesperson for the Indonesian Foreign Affairs Ministry, explained that the TFC represents an attempt to end impunity, and to strengthen a practice of self-empowerment in solving problems as they occur, instead of accepting external competences. (Kompas, December 23, 2004). In a meeting held in Bali on September 15, 2004, RI President Susilo Bambang Yudhoyono and Timor Leste President Xanana Gusmao had also discussed the issue.

2. The establishment of a TFC amidst the on-going accountability process unfolding in the two countries reflects lack of respect to each country's judicial institutions, which are currently in search for justice. In our opinion, the establishment of a TFC is laden with the governments' political interests rather than aiming at achieving justice for the people of each nation -- whether they are affected populations or public at large. The name, Truth and Friendship Commission, already exposes a compromise in nature!

3. As we know, today both Indonesia and Timor Leste are making attempts to prosecute violators of crimes against humanity committed after the 1999 poll in East Timor. An ad hoc human rights court was established in Jakarta, and a Serious Crimes Unit under the transitional government was founded in Dili. Both aimed at prosecuting those who were responsible for the brutality occurring during the period. Through December 2004, 74 have been convicted by the Special Panels. Also, a Commission on Truth, Reception and Reconciliation was established in Timor Leste. The Commission is finishing its final report set to expose the results of its investigation on Indonesia's occupation on East Timor since 1975.

4. It is obvious then, that the institution of a TFC represents both countries' denial of previous commitments made to the international community. The United Nations emanated Resolution No. 1272 in response to the post-polling violence in East Timor, proclaimed that: "the United Nations condemns all violence and acts in support of violence in East Timor, calls for immediate end, and demands that all that those responsible for such violence be brought to justice" (Security Council Resolution, 1999). We did respond to this claim by instituting an ad hoc human rights court on East Timor with results explained here under. The ad hoc human rights court in Jakarta, though incomplete, convicted only one suspect while the other suspects had been discharged. The ad hoc court had failed to prosecute all actors responsible for the violence due to lack of good will. As a result, the international community called for the establishment of the Commission of Experts, which is currently under Mr. Annan's careful consideration.

5. The above action runs against the principle and spirit of human rights enforcement admitted and employed both regionally and internationally to respond to human rights violations. Take for instance the no safe haven principle that underlies no place or mechanism available for any violator tries to escape from his responsibility. A TFC whole-heartedly violates the no safe haven principle. This act ignores the UN Commission on Human Rights' calls of 1982 to all nations to ensure that "convicted individuals shall be held responsible and that effective remedies including compensation must be made available for the survivals of human rights violations "

6. The above action also reflects a backward step in contradiction of human rights spirit voiced out internationally. It particularly makes the resolution of crimes against humanity a bilateral matter, reflecting a backward movement on the aut dedere aut punire principle which serves as a base to the universal jurisdiction on human rights violations a principle that assumes human rights as a universal issue, and human rights violators as enemies of all mankind, "Hostis Humanis Generis".

7. The establishment of a TFC unmistakably reveals a wish to elude the duty to prosecute the violators!. We therefore would like to assert that TFC is not more than a compromise based on the political interests of both states that adversely affects the people, particularly the victims. In short, the Commission is trying to exchange justice for political stability in the future of the two nations. However, could that be achieved while justice is clammed down?

8. Based on the above considerations, we would like to urge the UN Secretary General to continue his attempt to establish the Commission of Experts, and to remind the Governments of Indonesia and Timor Leste of their commitments to end impunity.

9. We would also like to ask particularly the Government of Indonesia to demonstrate a reformative stand in human rights enforcement as part of its national and international commitment by not allowing practices of impunity. Have faith in the new spirit, no safe haven and aut dedere aut punire principles. There will be no hideaway for violators of crimes against humanity ever!

Jakarta, December 27, 2004

We the undersign;

Rafendi Djamin (HRWG) Ifdhal Kasim (Elsam) Hendardi (PBHI) Asmara Nababan (Demos) Usman Hamid (Kontras)
 

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