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Letter to Kofi Annan on transitional justice process in East Timor
July 21, 2006
His Excellency Kofi Annan
Secretary General
The United Nations
1 United Nations Plaza New
York
New York 10017-3515
July 21, 2006
Dear Mr. Secretary General,
We are writing on behalf of three coalitions of NGOs concerned with the transitional justice process in Timor-Leste.
We understand that UN Special Envoy Ian Martin will report to you on 7 August with his recommendations on the shape of the new UN mission to Timor-Leste. We also understand that around the same time you will be reporting to the Security Council on your proposals for the future of justice and reconciliation in Timor-Leste, in response to the 2005 Commission of Experts (CoE) report.
The recent crisis in Timor-Leste has created the need for new justice and peacebuilding processes, and we are confident that the UN Independent Commission of Inquiry will provide a sound basis for these processes.
However, the crisis this year has also reinforced the need to deal with "unfinished business" from the past. Numerous reports from independent bodies, including the UN's own CoE, have concluded that the right of the people of Timor-Leste to achieve justice for war crimes and crimes against humanity committed between 1975 and 1999 has been poorly served by the Serious Crimes process – which the Security Council terminated in May 2005, despite widespread acknowledgement that its work was incomplete – and Indonesia's Ad Hoc Human Rights Court. The joint Indonesia and Timor-Leste Commission for Truth and Friendship has serious shortcomings which render it unable to meet international legal standards or deliver justice.
Events between 1975 and 1999 continue to strongly impact the people of Timor-Leste. The reactions of Dili residents to the unfolding crisis were those of a population that has suffered mass trauma which remains largely unhealed. In addition, the severe shortcomings of the local and international justice processes have helped to create a culture of impunity in which a range of actors believe they can, in effect, get away with murder and other crimes.
We believe that the creation of a new, expanded UN mission is necessary if Timor-Leste is to succeed as a nation. In addition, the international community must seize this unique opportunity to make amends for its failure to adequately support the transitional justice process. In particular, the new mission should include a reconstitution of the Serious Crimes process, in line with recommendations 7.1.1 and 7.1.2 of Chega! (Enough!), the final report of the Reception, Truth and Reconciliation Commission (CAVR) – that is, with increased resources and directly depending on the UN rather than the nascent judicial system of Timor-Leste.
This would not only allow for prosecution of the 339 accused who remain at large in Indonesia, outside the jurisdiction of Timor-Leste, but would also facilitate remaining investigations into serious crimes committed in 1999, as well as those from 1975 on.
Should Indonesia be unwilling to extradite those charged to face prosecution, or to institute a credible alternative judicial tribunal, arrest warrants should be issued through Interpol to make international travel by the suspects impossible. Other sanctions should also be considered.
The only credible alternative to a revived serious crimes process is for the Security Council to follow recommendations 29 or 30 in the CoE report – ie, "to create an ad hoc international criminal tribunal for Timor-Leste, to be located in a third State", or to utilize "the International Criminal Court [ICC] as a vehicle for investigations and prosecutions of serious crimes committed in East Timor." Since the creation of an international tribunal would be an expensive and lengthy process, and the ICC is likely to resist attempts to accord it jurisdiction for crimes committed prior to 2002, we strongly advise you to support the reconstitution of a credible Serious Crimes process.
This may be the UN's last chance to achieve justice for the people of Timor-Leste in line with the Security Council's earlier commitment, expressed nearly seven years ago in Resolutions 1264 and 1272. If this does not happen, there may be further instability in Timor-Leste, and the rule of law and respect for human rights internationally will be undermined. There will also continue to be calls for an international tribunal.
Finally, we note that our position is widely supported within Timor-Leste, especially by the Church, opposition political parties and civil society. In the past the leaders of Timor-Leste have expressed ambivalence about international justice mechanisms, primarily because they did not feel that this small, new and poor nation could afford to take a stand against its powerful neighbor and former ruler, Indonesia. However, in his inauguration speech Prime Minister Jose Ramos-Horta acknowledged the "great teachings" of the CAVR report, while at the press conference after the swearing in of the new government, President Xanana Gusmao said that "Reconciliation cannot be achieved without the truth and the truth would be meaningless without justice."
We take this as a sign that they acknowledge that a policy of appeasement is unsustainable, and that more effective measures are required to complete the process that was started in 1999 under your stewardship. It is now up to the international community to show the political, financial and legal commitment to resolve this issue.
Yours sincerely,