Author:	John Magro
Subjects:	East Timor International humanitarian law (Other articles) War crimes (Other articles)
Issue:	Volume 7, Number 3 (September 2000)
Category:	Comment

Contents

• Introduction
• East Timor History
• East Timor since 1976
• International Criminal Tribunal for the Former Yugoslavia (ICTY)
• International Criminal Tribunal for Rwanda (ICTR)
• Indonesian and United Nations Reports into a Possible Tribunal
• Conclusion
• Notes

"You cannot in this day and age, plan an orderly destruction of a whole country, the abduction of thousands of people, the killing, the rape, and get away with it with impunity." - Jose Ramos Horta.[1]

Introduction

1. The Indonesian Government's announcement on 27 January 1999 that East Timor would be entitled to vote for its right to independence put this tiny island back into the international spotlight, following years of struggle by the East Timorese people to resist forced integration with Indonesia. Events leading up to the 30 August 1999 vote became heated and soon developed into what could be described as a state of emergency. The international community soon witnessed the true feelings of those against the East Timor independence vote. Local militias, allegedly supported by the Indonesian military, reeked havoc and fear amongst the population. The media was quick to highlight the atrocities and angry response of those opposed to East Timor's secession from Indonesia and many reports soon emerged from the island describing the horrors, both past and present.

2. The following day, the vote earmarked the downward spiral of events that eventually resulted in United Nations military intervention. On September 1, militia violence outside the United Nations compound in Dili, East Timor's capital, saw the death of three people as the vote was tallied. The following day two more were killed as the Indonesian Government pledged that its troops would restore order. After the United Nations evacuated staff from the militia-ruled town of Maliana on September [3] the count proper was under way. The next day, United Nations Secretary-General Kofi Annan announced that 78.5 percent of East Timorese voted for independence. In turn, this resulted in elements of the Indonesian Army (TNI)[2] openly joining a violent campaign forcing thousands of East Timorese to flee into the mountains and across the border into Indonesian West Timor. By September 8 the United Nations had announced a total pull out of its personnel from East Timor, with their Dili compound finally left to the vengeance of the militias and the warning that thousands of East Timorese were close to starvation.3

3. At Australia's behest, the United Nations finally approved a multinational force on September 1[5] 1999, with the passing of Resolution 126[4] which under clause three "authorises the establishment of a multinational force under a unified command structure..." By September 20, the first of 7500 peacekeepers, predominantly Australian, arrived in Dili. Despite the problems currently faced in terms of rebuilding and adequately caring for the East Timorese, relative calm has been restored to East Timor. As a result, the serious questions regarding the humanitarian issues can be asked. At the top of the list has been discussion of whether an International Criminal Tribunal should be established to prosecute those Indonesians deemed responsible for atrocities. This is not just for the recent spate of horrors, but for the many massacres and crimes against humanity that have occurred in East Timor during the last twenty-five years, when East Timor became part of Indonesia.

4. This paper will examine whether there is justification in establishing an International Criminal Tribunal for East Timor, considering the history of atrocities that have occurred there since 1975. Used as a comparison for this examination will be the two most recent International Criminal Tribunals, those of the Former Yugoslavia and Rwanda. In comparing these two previous tribunals, the events leading up to their formation will be examined, along with what is actually required to establish such a tribunal. Following this, discussion will focus on who should be tried, how they should be tried, and which dates in the history of East Timor are appropriate as boundaries in the prosecution of such a tribunal. Problems inherent in such a tribunal will be highlighted, with possible solutions used to overcome these. Comment will be made on the recent report of the Indonesian Commission of Inquiry that to a degree supports a tribunal for crimes against humanity in East Timor. Finally, a brief comment will be made on the pending United Nations announcement which may implement an International Criminal Tribunal for East Timor.

   East Timor History

5. In order to provide a clear picture of what is happening in East Timor today, it is necessary to reflect on the beginnings of European colonisation in Timor in order to fully appreciate the plight of the East Timorese.

6. The Island of Timor is located at the eastern end of the Sunda Archipelago, 430 kilometres north west of Australia. East Timor naturally comprises the eastern half of the island, the enclave of Oecusse; within West Timor, and the islands of Atauro and Jaco. It has an area of 18 889 square kilometres and has a population of 700 000 people.4 The Portuguese arrived in Timor in 1511, two years after their conquest of Malacca. It was the sandalwood trees that covered the mountains of the island which attracted the Portuguese. There was little else that attracted the Europeans.5 Prior to European intervention the Island was ruled by two powerful kingdoms: Serviao in the west and Belu in the east. The Portuguese did not alter the political dominance and independence of these two kingdoms until much later, after several centuries of political manipulation, cunning, religious conversion and the use of force when this was possible.[6]

7. In 1566 Portuguese Dominican friars settled on the neighbouring island of Solor. This resulted in a settlement consisting of native converts and the offspring of Portuguese soldiers, sailors and tradesfolk and local women. This mixed race became known as 'Topasses'. The Dutch later called them Black Portuguese. After Solor, other settlements were established on Flores and Timor. The Dutch visited Timor for the first time in 1613. The local ruler was receptive to the Dutch as he had been earlier to the Portuguese. He offered his land for the construction of a fort and expressed his willingness to be christened. The Dutch did not accept and did not return to Timor for forty years.[7]

8. In 1647, a few Portuguese built a stone wall and palisade fortification at Kupang in West Timor. After a quarrel amongst themselves, the Portuguese left the fortification. Following an earthquake in 1653, the Dutch transferred their garrison from Solor to the fortification at Kupang, forcing the remaining Portuguese out without firing a shot. Kupang remained the main Dutch centre in the Timor archipelago until Indonesia's independence in 1949.[8]

9. Throughout the sixteenth and seventeenth centuries the Portuguese crown had little authority on Timor, which was theoretically ruled by a Portuguese viceroy in Goa, some 6000 kilometres away in India. The Topasses were the de facto rulers of the islands and challenged the viceroy's representatives when they were not happy with them. It was not until the eighteenth century that the seat of government was established on the island of Timor itself. The first official Governor was appointed in 1701, who began a strategy of divide and rule that was to characterise the Portuguese colonialism for the next two centuries. Through bribes, military ranks offered to local chiefs and alliances cunningly exploiting tribal rivalries, the Governor managed to undermine the authority of the indigenous rulers.[9]

10. The Dutch had attempted to exert their influence over the entire region. In particular they attempted to deprive the Portuguese of the sandalwood trade in East Timor, but this proved unsuccessful due to the Portuguese Dominican missionaries leading and organising the inhabitants to oppose the Dutch. The first major defeat for the Portuguese was the seizure of Malacca by the Dutch, followed by Kupang. This resulted in the Portuguese influence in the region being reduced to the eastern part of Timor. A first border agreement between the Dutch and Portuguese was concluded in 1858, but it was not until 1913 that the present boundary dividing East and West Timor was ratified with the Hague Sentença Arbitral.[10]

11. During the Second World War Portugal was neutral, but this did not prevent the island being a battleground. In February 1942, the Japanese landed troops near Kupang and Dili. West Timor was occupied in a couple of months. However, approximately 400 Australian commandos were able to hold off the Japanese advance from the East Timorese side with the assistance of the East Timorese people. Despite this, many Timorese were either killed or starved to death. The population of East Timor declined from 472 000 in 1930 to 403 000 in 1946. Following the Japanese surrender in 1945 the Portuguese quickly and thoroughly re-established control. [11]

12. Meanwhile, the Dutch had to fight the nationalists in Java. By 1949, West Timor had become part of the independent state of Indonesia.[12] In stark contrast, East Timor experienced the return of a regressive colonial power ruled by a fascist dictator, António de Oliviera Salazar, whose sympathies were with the Axis powers during the war.[13] To give an indication of the contempt the Portuguese had for East Timor following the Second World War, East Timor was at the bottom of the Portuguese national budget and development plans. No senior cabinet minister had set foot on the island. It was apparently a dumping ground for political dissidents, failed professionals and incompetent bureaucrats. It was not until 1960 that Dili received electricity and in 1974 only a few streets had been paved.[14] Portuguese officials dubbed the island "ante-camara do inferno" (gateway to hell), because the island was plagued by malaria and other tropical diseases. The illiteracy rate was 90%.[15]

13. Despite Indonesia having newly found independence from the Dutch, there is evidence that suggests that a desire to unite all the land in the region had its beginnings at the time of independence. On 1 March 1945, a committee for the Preparation for Independence had been set up in Java. In an address to the Committee on 31 May 1945, one Mohammad Yamin declared:

    "Portuguese Timor and North Borneo, being outside the territory of former Dutch rule, constitute enclaves, and enclaves should not be allowed to exist in the territory of the state of Indonesia; so, these areas should come within the control and complete unity of the State of Indonesia. They are not only physically part of us but have been inhabited by Indonesian people since history began, forming part of our motherland."[16]

14. Despite this statement, which seems to have been made by a romantic who dreamed of a 'Greater Indonesia' in 1945, the Indonesian Government, in accordance with international law, affirmed at the United Nations and on other occasions that it had no territorial pretensions whatsoever towards East Timor.[17] Throughout 1950 to 1962 there were few references to East Timor from the part of Indonesian political leaders. In 1959 a revolt took place against the Portuguese in East Timor. The revolt was rumoured to have been instigated by Indonesian secessionists who had taken refuge in the territory.

15. This fact that secessionists were involved may have been one reason for lack of support from Indonesia in any claim on East Timor. Another reason is that the revolt was soon quelled. A third reason was that at this time Indonesia was still fully occupied with the acquisition of West New Guinea (Irian Jaya).[18] President Sukarno was not interested in this vestige of Portuguese colonialism. Neither Sukarno nor any Indonesian Government before 1965 showed any specific interest in Portuguese colonialism, although in 1959, Sukarno had said that his country was "actively opposed to, and hitting hard at, all forms of imperialism wherever they occur".

16. The general trend of decolonisation in the 1950s and 60s led to an increased pressure on the Portuguese to give up their imperial remnants. Portugal had tried a semantic solution by defining its colonies as 'overseas provinces', but this did not succeed in convincing the majority of the international community.[19] Given the previous description of how the Portuguese treated East Timor and the utter contempt held for it by bureaucrats, it is little wonder that little global support was shown towards East Timor's colonial masters.

17. In 1960, East Timor was considered by the United Nations as a non-autonomous territory under Portuguese administration according to resolution 1514 (XV) of 14 December 1960. After 1962 and until 1973 the General Assembly of the United Nations approved successive resolutions recognising the right to self-determination of East Timor (and of all existing Portuguese colonies). The Portuguese dictatorial regime of Salazar refused to recognise this right, affirming that East Timor was a Portuguese province equal to any other.[20]

18. By 1974 the Portuguese Empire began to crumble. On April 25 in Lisbon a bloodless coup occurred, known as the "carnation revolution", lead by Otelo Saraiva de Carvalho, a charismatic young army officer. A three front war with Portugal's African colonies in Angola, Mozambique and Guinea-Bissau had long strained Portugal's meagre financial resources. This had contributed greatly to the stagnated economy. Portugal was in dire financial strife. A result of the coup was that Portugal immediately offered independence to these colonies, along with Cape Verde, São Tomé and Príncipe. This euphoria of the new regime spread to East Timor, as the end of the Portuguese fascist regime spelt a new lease of life to East Timor. This allowed the East Timorese elite to ponder political moves of their own.[21]

19. The first of the political organisations to emerge in East Timor was the União Democrática de Timor or UDT. Founded on May 11, 1974, UDT favoured eventual independence following an extended transition period of association with Portugal. Its leadership was drawn from prominent Catholics, smallholding farmers and officials from the Portuguese administration. UDT proposed "progressive autonomy...but always under the Portuguese flag" with "the integration of Timor in a commonwealth of Portuguese speaking countries". On May 20, 1974, Associacacao Sosial Democratica Timorenses or ASDT was founded. On 11 September 1974, ASDT became known as Frente Revolucionària de Timor Leste Independente Timor, better known as FRETILIN. This group defended "the right to independence (progressive autonomy with the ultimate goal of independence)". They also became rebels against the Indonesian military for the following twenty-five years. APODETI (Popular Democratic Association of Timor) was created on 27 May 1974, and proposed "integration with autonomy within the Indonesian community".

20. The Portuguese authorities were totally open to any solution, including integration with Indonesia, as long as it was the result of the free choice of the Timorese people, in accordance with the stipulations of international law and United Nations resolutions. Under the Portuguese Council of the Revolution Constitutional Law 7-75 of 17 July 1975, Article 1 states:

    "The Portuguese State reaffirms the right of the people of Timor to self determination, with all its implications, including the acceptance of its independence in accordance with the relevant resolutions of the United Nations and with strict observance of the principle of respects for the will of the people of Timor."

    Further, under Article 12 of the above mentioned law:

    "The Portuguese Government shall endeavour satisfactorily to conclude the decolonization (sic) of the Territory of Timor, both safeguarding the balance of the strategic zone in which Timor lies and ensuring complete prevention of any risks of neo-colonist ambitions".

21. The people of East Timor exercised their right to self-determination on 28 November 1975 when a de facto FRETILIN Government unilaterally declared independence and proclaimed the establishment of the Democratic Republic of East Timor. Nine days later on December 7, 1975, Indonesia launched an all out attack on Dili, the capital of East Timor. The December invasion and the armed incursions that preceded it were the culmination of a campaign initiated more than a year before by the Suharto military regime. This was to prevent the emergence of an independent state in place of a Portuguese colonial regime that had maintained control of the eastern half of the island of Timor since the sixteenth century.[22]

22. Under Article 307 of the Constitution of the Portuguese Republic, of 2 April 1976, regarding the independence of East Timor, Clause 1 states that "Portugal shall remain bound by its responsibility, in accordance with international law, to promote and safeguard the right to independence of Timor Leste". The Portuguese in fact withdrew from East Timor in July 1975. Under international law Portugal as the colonial master of East Timor had the right to defend the territory from Indonesian aggression. Portugal did not use this right.[23]

    East Timor since 1976

23. A report by Richard Carleton on 31 July 1977 published in the London Observer[24] stated:

    "Indonesia invaded Timor not because it wanted more territory but because it feared that an independent Timor might turn Communist some time in the future. Indonesia used much the same techniques to take over Timor as it had used in taking over the former Dutch colony of West New Guinea (Irian Jaya). It moved in, set up a puppet assembly and then magnanimously agreed when the assembly sought integration with Indonesia. The 'integration' of Timor is on the agenda for the United Nations General Assembly meeting in September."[25]

24. Regardless of the reasons for Indonesian invasion of East Timor, what has resulted since 17 July 1976, when President Suharto signed the Bill of Integration, annexing East Timor as Indonesia's 27th province, could only be described as a bloodbath. Three years after the invasion, on 25 December 1978, the Indonesian authorities estimated the population of East Timor to be 498 433 people. In 1980, the Catholic Church counted only 425 000. Even allowing for a certain margin of error in these statistics, this means that more than 200 000 East Timorese (nearly a third of the population) died in the first five years of Indonesian occupation, as a consequence of invasion, the war, murders and arrests, and the hunger caused by the destruction carried out by the Indonesian forces and by the incarceration of East Timorese in concentration camps.[26]

25. Indonesia's war against the people of East Timor can be divided into three periods. The first period lasted from December 1975 until August 1977, the second from September 1977 until mid-1983 while the third period commenced in August 1983. This invasion of East Timor was the biggest military operation ever to have been mounted by the Indonesian Armed Forces. According to Australian Member of Parliament, Ken Fry, who testified before the United Nations Security Council on 14 April 1976, Australian intelligence put the number of Indonesian troops in East Timor at the time at 32 000 plus another 10 000 being held in reserve in West Timor. It has been said that Operasi Seroja, the military operation to invade East Timor was a disaster due to lack of coordination and a series of miscalculations by the Indonesian military.[27]

26. The problems that are faced by the ability to accurately calculate the actual death toll of the East Timorese invasion by Indonesia are highlighted by Nobel peace laureate, Jose Ramos Horta. He emphasises that of the foreign governments, the Australian Government is best placed to gather reliable information on conditions in East Timor through its Embassy in Jakarta. If it wanted, it has thousands of refugees in Portugal and Australia readily available to be interviewed. However, the Australian official attitude has always been to dismiss the tales of horror that poured out of East Timor. For example, in 1981 Western Australian Labor Senator Gordon McIntosh, the then Chairman of the Senate Standing Committee on Defence and Foreign Affairs, undertook a year long inquiry and received some two hundred oral and written testimonies. Of the East Timorese who testified, often in closed session for fear of reprisals against their relatives back home, not one was a FRETILIN member.[28] This suggests that those actually targeted for termination by the Indonesian military were not welcome to provide evidence of atrocities.

27. Under Indonesian military occupation, the people of East Timor have become the victims of a regime of unparalleled terror and barbarism. Much has been written about the indiscriminate killings that occurred in the capital, Dili, on the first day of the invasion. Details of what happened were first documented by Jim Dunn, a former Australian consul in Dili who interviewed East Timorese refugees in Lisbon in February 1977. Dunn described the attack on Dili in 1975 as "one of the most brutal operations of its kind in modern warfare".

    "According to a Catholic priest who was at Dili after the invasion, as many as 2000 citizens of the capital, some 700 of them Chinese, were killed in the first few days of the Indonesian invasion...Hundreds of Timorese and Chinese were gunned down at random...In one such incident, a large number of Apodeti supporters who had just been released from internment by FRETILIN, went out to greet their liberators (Indonesian troops), to be machine-gunned for their trouble. A number of public executions were carried out by Indonesian troops, with some of the condemned being selected at random, and others with the help of Apodeti collaborators. One of the most bizarre and gruesome of these atrocities occurred within 24 hours of the invasion and involved the killing of about 150 people. This shocking spectacle began with the execution of more than 20 women who, from various accounts, were selected at random...The women were led out to the edge of the jetty and shot one at a time, with the crowd of shocked onlookers being forced at gun-point to count loud as each execution took place!"[29]

28. The following ten years saw more atrocities in East Timor than can be adequately covered in this paper. Despite United Nations General Assembly calls for Indonesian withdrawal from East Timor and condemnation of Indonesian intervention, nothing was done to effect an Indonesian withdrawal from East Timor. On one occasion, Francisco Barras, deputy secretary of the FRETILIN Zone and Antonio Adakay, a health officer, were captured in Barike, Cassohan on 3 September 1978. They were taken to Lakluta and tied to trees with their legs apart and their arms outstretched. They were burnt with lit cigarettes, then with red-hot irons. Then their penises were cut off and they were left to die in the sun.[30]

29. Of the more infamous massacres which have occurred in East Timor, the Lakluta Massacres are one such event demonstrating the barbarism associated with the Indonesian military invasion of East Timor. Lakluta lies on the southern slopes of the Dilor mountain range, in central East Timor, surrounded by the Santo Antonio Hills. It was here in 1981 that the Indonesian Operation Security was concentrated.

30. Hundreds of people were brought from surrounding districts and slaughtered along with local inhabitants. It was a place where no one dared drink the river water because it tasted of blood. The events of September 1981 turned Lakluta into a symbol of the worst atrocities perpetrated by Indonesian troops in East Timor. On 2 September 1981, 25 people, twenty men and five women were brought there. The women were separated from the men, who were lined up and shot dead by soldiers. Their bodies were covered with dry leaves and grass and set alight. On another occasion in the same place, Indonesian soldiers took hold of the legs of small children and threw them around in the air a number of times and smashed their heads against a rock.[31]

31. In July 1983, Kay Rala Xanana, Chairman of the Council of National Resistance (CRRN) in East Timor released to the world a special communication giving details about massacres and atrocities. This document grouped Indonesia's human rights violations in East Timor into four broad categories: 1. Systematic persecution and intimidation, 2. Torture of people suspected of involvement in clandestine organisations, 3. Imprisonment without trial, and 4. Killings. The document compiled by CRRN provides some of the most comprehensive information about murders and atrocities available regarding East Timor.[32]

32. More recently, the international spotlight was placed on East Timor, when on 12 November 1991, the infamous Dili Massacre occurred. A memorial service was taking place for a student who had been killed by the Indonesian military when the military raided Motael Church. The mass began at 6 a.m. and lasted for one hour, followed by a march to the Santa Cruz Cemetery. As the march passed the Governor's office, more than one thousand students at the front moved too quickly and left a gap in the middle of the protesters. This gap was used by the Indonesian military to infiltrate their trained agent provocateurs. These agents tried to pull the flags and banners off some of the marchers. In the ensuing scuffle, a Timorese agent provocateur was injured.[33]

33. At the cemetery, the Indonesian military arrived from the southern end and after driving back and forth, unprovoked, they disembarked and started shooting into the crowd. When the shooting stopped after ten minutes, approximately two hundred people had been killed. Many more were wounded. However, two years after the event, a leading Indonesian intellectual[34] has confirmed that 271 East Timorese were killed and a further 200 went missing after the shootings.[35] Bob Hawke, then Australia's Prime Minister, had to make the strongest statement on East Timor ever by an Australian Government. Indonesian military response publicly defended the Dili Massacre by stating that the army "is determined to wipe out anyone who disrupts stability".[36]

34. Since this time, the most recent flare up of violence to make world attention regarding East Timor has been after the Indonesian Government's announcement to allow East Timor a vote for independence. There have been reports of recent atrocities since the vote of independence, and United Nations International Forces in East Timor (INTERFET) have recently discovered mass graves[37] adding credibility to these allegations.

35. Having provided evidence of a clear violation of human rights in East Timor over the past twenty-four years, it is now necessary to analyse the International Criminal Tribunals for the former Yugoslavia and Rwanda. Here it can be demonstrated whether there is enough to establish an International Criminal Tribunal for East Timor.

    International Criminal Tribunal for the Former Yugoslavia (ICTY)

36. On 25 May 1993, the United Nations Security Council unanimously passed Resolution 827, which created the Yugoslavia Tribunal pursuant to Chapter VII[38] of the United Nations Charter and adopted the draft statute in the Secretary-General's report. The creation of the Yugoslavia Tribunal arose in the aftermath of evidence of horrendous war and humanitarian crimes in that conflict, in particular, genocidal atrocities and ethnic cleansing perpetrated by Bosnian Serbs against Muslims in Bosnia-Herzegovina.[39] Since the beginning of the conflict in the Former Yugoslavia in 1991, it is estimated that the death toll is in excess of 80 000 people.[40]

37. The actual process of implementing a tribunal began with the adoption of 13 Security Council resolutions and six statements within two months in 1993.[41] These declared the situation in the former Yugoslavia was a breach of international peace and security, expressed concern over violations of international law in the region and affirmed individual responsibility for such violations.

38. On October 6, 1992, the Council created a commission of experts to examine these violations of international law. The commission concluded in an interim report that serious violations of international humanitarian law were indeed taking place and recommended the creation of an ad hoc international tribunal. In the aftermath of the commission's report, on 11 February 1993, the Council declared that the violations of international humanitarian law in the former Yugoslavia indeed constituted a threat to international peace and security, and decided to establish an international tribunal to address them. The Council requested the Secretary-General prepare a report implementing this decision.

39. On 3 May 1993 the Secretary-General's report[42] set forth a draft statute for an ad hoc international tribunal and took the view that the Security Council should establish the tribunal by resolution. The statute of the Yugoslav tribunal is restricted to serious violations which were committed in the former Yugoslavia since January 1, 1991.[43] January 1, 1991 was chosen as the time from which the Tribunal would commence as this was when the conflict erupted between the nations of the former Yugoslavia, when in June 1991 Croatia and Slovenia proclaimed their independence[44] and when the Serbs attacked Slovenia, and later fought against Croatia.[45] The statute defines the Tribunal's authority to prosecute four clusters of offences: Article 2 - Grave breaches of the 1949 Geneva Conventions, Article 3 - Violations of the laws or customs of war, Article 4 - Genocide and Article 5 - Crimes against humanity. The tribunal was established,

    "[b]elieving that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed".[46]

40. Located in The Hague, The Netherlands, the actual Tribunal is composed of 832 staff from 68 countries. Since the Tribunal's inception, 93 individuals have been publicly indicted, with 36 accused currently in proceedings before the Tribunal. At this stage 30 indicted accused remain at large, the most notable of these is Serbian President Slobodan Milosevic.[47]

41. The relevant articles in the case of East Timor include articles 2, 4 and 5. Grave breaches of the 19[49] Geneva Conventions, which are stated in article 2 of the Secretary-General's report include:
    
    (a) wilful killing,
    (b) torture or inhuman treatment,
    (c) wilfully causing great suffering or serious injury to body or health,
    (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly,
    (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power,
    (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial,
    (g) unlawful deportation or transfer or unlawful confinement of a civilian, (h) taking civilians as hostages.[48]

42. According to article 4 of the Yugoslav report, Genocide means "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
    
    (a) killing members of the group,
    (b) causing serious bodily or mental harm to members of the group,
    (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,
    (d) imposing measures intended to prevent births within the group,
    (e) forcibly transferring children of the group to another group.[49]

43. Crimes against humanity under article 5 relate to inhumane acts of a very serious nature, committed in armed conflict, whether international or internal in character, and directed against any civilian population. These are:
    
    (a) murder,
    (b) extermination,
    (c) enslavement,
    (d) deportation,
    (e) imprisonment,
    (f) torture,
    (g) rape,
    (h) persecutions on political, racial and religious grounds, and
    (i) other inhumane acts.[50]

44. It is interesting to note, however, that the Geneva Conventions do not apparently apply to internal conflicts, but only to international conflicts. In the ICTY decision of The Prosecutor v Dusco Tadic[51] the majority of the Appeal Chamber held that although the Geneva Conventions only impose mandatory universal jurisdiction for grave breaches committed in an international conflict, they acknowledge that the status of current international humanitarian law on the applicability of grave breaches may very well be in a state of flux and is perhaps in the process of changing from the traditional view.[52]

45. This blurring dichotomy between international and internal conflict is further strengthened when the court in the Tadic Case noted the view of the United States. They stated that grave breaches apply to armed conflicts of a non-international character as well as those of an international character, however, there is little discussion as to the reason why. What seems to be a reason for this is the modern interpretation of the Geneva Conventions, which emphasise a personal criminal responsibility for the acts which constitute grave breaches even when committed in the course of an internal armed conflict.[53] This is supported by the fact that Tadic was sentenced to 20 years imprisonment for his individual criminal responsibility on six counts of grave breaches of the 1949 Geneva Conventions. This was regardless of the fact whether the war in the former Yugoslavia was considered an internal or international conflict.[54]

    International Criminal Tribunal for Rwanda (ICTR)

46. The history of the Rwanda Tribunal mirrors that of the Yugoslavia Tribunal in many respects, as the United Nations' member states took action after a tragedy had already unfolded. Rwanda, like Yugoslavia, has had a long history of economic and political rivalries between the two main ethnic groups, the majority Hutus and the minority Tutsis. These tensions persisted in the decades following Rwanda's independence in 1959, causing periodic outbreaks of violence and prompting large numbers of people to seek refuge in neighbouring States.[55]

47. In the aftermath that devastated Rwanda starting in April 1994, the Security Council passed a series of resolutions expressing its alarm at violations of international law and determining that the conflict represented a threat to international peace and security. Although taking little action to halt the massive atrocities, in May 1994, the Security Council requested the Secretary-General prepare a report on violations of international humanitarian law during the conflict and in July passed resolution 935, which authorised the creation of a commission of experts to examine the evidence.

48. The commission's December 1994 report concluded that Hutu elements had committed planned and systematic genocide against the Tutsi ethnic group. It also found that individuals on both sides had committed crimes against humanity and other offences, although it was unable to establish whether Tutsi elements had committed acts against the Hutu population with genocidal intent.[56] The extent of the killings has been estimated at 30 000 people.[57]

49. On November 8, 1994, the Security Council adopted Resolution 955[58] creating an ad hoc international criminal tribunal to judge individuals responsible for violations of international humanitarian law occurring in Rwanda between January 1, 1994 and December 31, 1994. Twenty-two indictments have been issued against thirty-five individuals.

50. Article 2 - Genocide, article 3 - Crimes against humanity and article 4 - Violations of article 3 common to the Geneva Conventions and of Additional Protocol II state the ICTR's power to try certain crimes.[59] The definitions of genocide are the same as article 4 of the ICTY statute.[60] This again applies to the wording of article 3 of the ICTR Statute. The only major difference between the two statutes is article 4 of the ICTR Statute, which discusses Violations of article 3 to the Geneva Conventions and of Additional Protocol II.

51. Naturally, the ICTR Statute does differ slightly in this regard reflecting the conflict's particular circumstances. These violations state:
    
    (a) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment,
    (b) collective punishments,
    (c) taking of hostages,
    (d) acts of terrorism,
    (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault,
    (f) pillage,
    (g) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised people, and
    (h) threats to commit any of the foregoing acts.[61]

52. Similarities of the ICTY and ICTR supporting a need for an International Criminal Tribunal for East Timor Having discussed both the ICTY and the ICTR, does the evidence support a need for such a tribunal in East Timor? Both the ICTY and the ICTR were established in the belief that by having such Tribunals in those countries, those individuals responsible for the atrocities which did occur would be prosecuted for the violations of international humanitarian law, ensuring that the violations were halted and effectively redressed. This paper has demonstrated that such violations have occurred in East Timor, not just in the past twelve months, but in the past twenty-five years. Although the military intervention of the INTERFET Force has somewhat halted violations of international humanitarian law, there definitely is a need to ensure that the violations which have occurred are 'effectively redressed'.

53. Another reason for the need for the establishment of an international tribunal in East Timor is the fact that the Indonesian Government may not take the initiative for fear of bias in not adequately trying those responsible for the past atrocities. This is supported by recent reports from Indonesia confirming the Indonesian Government's reluctance to have an international tribunal established.[62] Indonesia's President Wahid has stated that Indonesia's judicial system, not the United Nations, should be responsible for bringing those responsible for atrocities in East Timor to justice.[63] This is a reason why the ICTY and ICTR were established: there was no desire, nor were there adequate resources in the two nations involved in the previous two tribunals to want to establish such tribunals. If justice was to be seen to be done, there was a need for international intervention in order to satisfy this.

54. There may also be the argument put by Indonesia that there has been no violation of international humanitarian laws. A focus on the relevant articles of the ICTY and the ICTR relating to international humanitarian law demonstrate that there definitely are similarities between East Timor, the ICTY and the ICTR.

55. Referring to the genocide definitions stated in the Yugoslav and Rwandan statutes, subsection (a) could be implied in the case of East Timor. Are East Timorese, really considered Indonesian despite the fact they are now incorporated in Indonesia? Considering the ethnic mix of East Timorese, a mixture of the local inhabitants and the former Portuguese colonials, with traditional animistic cults and Tetum; the lingua franca of the East Timorese,[64] they are much different to their Javanese masters. East Timorese are predominantly Catholic compared to the majority of Indonesians being Muslim. This compares to the situation in Rwanda, where two ethnic groups of people; Hutu and Tutsie, all considered Rwandese, were actually fighting each other due to their own historical rivalry.

56. Clause (b) of the genocide definitions involves the causing of serious bodily or mental harm to members of the group. Reference to the earlier episode stated above regarding Francisco Barros and Antonio Adakay is enough to provide evidence of serious bodily harm. Also, during the first few years of Indonesian occupation of East Timor, there were reports that the Indonesian military used chemical weapons and napalm against the East Timorese.[65]

57. Subsection (c) of the genocide definitions relates to inflicting conditions of life calculated at bringing about its physical destruction in whole or in part. Reports of the use of defoliants by the Indonesians during 1977 and 1978 saw the destruction of crops and the poisoning of drinking water used by the East Timorese to starve them out of existence. As one eyewitness account provides:

    "In some places that were bombed, everything got burnt as a result; gardens as well as houses. In some places, a day or two after a bombing raid, a plague of maggots would come and destroy our crops. The Indonesians must have dropped things that hatched into insects to destroy our crops. Or sometimes after a bombing raid, many people had violent attacks of vomiting and dysentery from the drinking water. This kind of thing happened in the Matabian region in 1977 and 1978."[66]

58. In addition, there is also evidence to suggest that in the past, operations were conducted by the Indonesian military to round up people and herd them into 'resettlements'. These were referred to as 'Operation Cleanup' and were characterised by the systematic intimidation and terrorisation of the population. The end result was that many people were massacred by professional killers, and of villages which had populations of 400 to 600 people, only five to eight families remained alive at the end of the year.[67]

59. Definition (d) of the genocide clause relates to imposing measures intended to prevent births within the group. Again there is evidence available which implicates the Indonesian military in this act of genocide. According to one source, the Indonesians launched campaigns of forced sterilisations of Timorese women. At the beginning of 1987, the Foreign Affairs Sub-Committee of the American Congress manifested its concern regarding "a program of population control imposed on East Timor by the occupying authorities, in spite of the steep drop in the island's population after the Indonesian invasion of 1975." Two years later, the Jakarta appointed 'Governor' of East Timor also recognised this fact and deplored its international repercussions.[68]

60. With regards to the accusation of crimes against humanity, again Indonesia is clearly culpable. Of the nine clauses that are included within crimes against humanity, there is evidence to suggest Indonesia is guilty. At the top of the list is clause (a), murder. Although the recent events in Indonesia leading up to and after the independence vote have produced many reports of murder, this is nothing new. As far back as the 1970s, Amnesty International had begun to build a dossier of information about individuals who had disappeared, much of it supplied through the network of refugees living abroad who occasionally received smuggled letters from home. Another document produced by the Revolutionary Council of National Resistance (CRRN) provides the most comprehensive information about murders and atrocities available.[69] This particular list was compiled in 1983 and at that time had 73 names of people murdered by Indonesian troops, with details of particular military units, and the method of extermination used.

61. Clause (f) of article 3 mentions torture. Again there is an abundance of evidence to implicate Indonesian troops. One particular episode deals with Albino Lourdes. After being arrested in 1983 with accusations of 'contacting people in the bush', but not being formally charged, Lourdes was beaten and given electric shocks, then "[Indonesian troops] put a table on top of his body, and four soldiers got on it. In the morning they took off all his clothes and took him to the seaside with his hands tied behind his back. And then, with the Indonesians holding on to the other side of the rope, they kept throwing him into the water and every five minutes or so they would pull him out."[70]

62. It is interesting to note that as far back as 1994, Amnesty International criticised the Suharto Government for making hollow pledges about the protection of human rights in Indonesia and East Timor. Amnesty further cautioned that "the Indonesian Government must be held accountable for these abuses, if not there is a danger Jakarta will continue to take advantage of its high profile within the United Nations...to reshape the human rights agenda in a way which threatens internationally acceptable standards of human rights".[71]

63. Discussion of article 2 of the Yugoslav Statute has highlighted the fact that internal conflicts may be within the scope of the Geneva Conventions, once thought to be only applicable in international conflicts. The fact these again include many of the clauses included in crimes against humanity would again give any potential international tribunal for East Timor grounds for holding those responsible accountable. Even if this were not so, the mere existence of Additional Protocol II to the Geneva Conventions[72] provides for protection of victims of non-international conflicts, as was evident in Rwanda, which covers similar violations as mentioned in the Geneva Conventions. The beauty of this in regards to East Timor is that the protocol "shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts".[73] The East Timor situation has existed for twenty-five years. It is quite evident that it is not a sporadic event.

64. Of the clauses within article 2, of particular interest is subsection (d): extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. The recent withdrawal of Indonesian troops from East Timor on 17 September, 1999 saw extensive looting and destruction of the buildings in Dili for no reason other than the fact that Indonesian troops had been forced by the United Nations to leave. Problems to be overcome with a potential International Criminal Tribunal in East Timor The previous International Criminal Tribunals for the Former Yugoslavia and Rwanda, despite allowing some form of justice to be had to those respective regions, have been marred by a plethora of problems. The identification of such problems would undoubtedly ensure a smoother implementation of a similar tribunal in East Timor.

65. One of the major criticisms regarding the tribunals is the actual dates set by the resolutions for both the ICTY and the ICTR. Although the Yugoslav Tribunal has only a beginning date as that of January 1, 1991, it has the advantage of having been left open to cover crimes that were planned or incited during the course of the war but were committed after the formal end of the war. An example is the recent events in Kosovo, where crimes against humanity have been included within the scope of the ICTY. The obvious disadvantage is that any crime committed before this date will go untried.

66. The major criticism in this regard however goes towards the ICTR. Article 1 of the Rwandan Tribunal[74] has limited crimes against humanity between 1 January 1994 and 31 December 1994. Doctor Alex Obote Odora, a legal academic on African armed conflict, claims that violations of international humanitarian law in Rwanda actually began on 1 October 1990, when the armed conflict in Rwanda began between the Rwandan Government and the Rwandan Patriotic Army (RPA) and continued well after 31 December 1994. One example cited is the death of between 5000 and 10 000 refugees from Kibeho refugee camp killed on 22 April 1995 by the RPA, well outside the dates of the Rwandan statute. [75]

67. The obvious concern in this instance is where to limit the period of atrocities committed in East Timor. Human Rights Watch has suggested that the limitation period should be from 27 January 1999, the date when Indonesian President Habibie announced that he would allow East Timor an independence vote, to 30 September 1999, the time of intervention by INTERFET troops.[76] Considering the evidence which has existed for the past twenty-five years and the fact that little has been done to address the number of violations which have existed, this is an insult to the East Timorese people and their struggle for independence and justice.

68. It is submitted that the scope of atrocities with regards to an East Timor tribunal be from the date of the Dili Massacre, 12 November, 1991 up to the intervention of United Nations INTERFET forces on September 20, 1999. The Dili Massacre shed new light on the East Timor's plight after many years of neglect, as the world spontaneously condemned Indonesia for this. It also provoked Australia to comment on the situation.[77] The fact that the period of atrocities spans almost a ten-year period will allow the blatant violation of human rights to be investigated. Further, this ten-year period is a practical time span. It is conceded that to investigate every incident since Indonesia's 1975 invasion would not only be costly and impractical due to a lack of firm evidence, but place a financial burden so great on any tribunal that the administering of justice would not be expeditious. A ten-year period would again be practical as those responsible for past atrocities would still be able to face investigation and possible prosecution.

69. Having said this, however, if the limitation period stated above was to be implemented, many of the violations highlighted in this paper would unfortunately fall outside this. The object of these examples was not to imply these are situations to be tried. They were included to show that there is an ability to satisfy the various articles contained within the Yugoslav and Rwandan Tribunals of human rights; agreed to by the United Nations, regarding violations in East Timor. The actual problem in the case of East Timor is the ability to obtain eyewitness accounts of various atrocities within the past ten years similar in nature to those which have been described within this paper. However, it can safely be assumed that if the particular violations occurred once, they may have occurred again within the ten year limitation period. For example, 'Operation Cleanup' relocation operations occurred in the 1980s. These continued into the 1990s.[78]

70. Another possible problem to be faced by a potential East Timor tribunal is the ability to compel those accused of crimes against humanity to appear before it. This problem has been evidenced in Yugoslavia, where it has been difficult to compel all sides accused in the conflict in Yugoslavia to appear before the Tribunal. Although none of the groups of the former Yugoslavia has an unblemished record of cooperation with the Tribunal, Serb authorities, both in the Federal Republic and Bosnia, have been especially recalcitrant. If this was not problem enough, the international force will only arrest suspects whom it encounters in the normal course of its duties. It has failed to arrest suspects whose whereabouts are clearly known and who could be easily apprehended.[79] The most famous of these is Serbian President Slobodan Milosevic.

71. The lesson to be learnt in the case of East Timor would be to implement strategies which would compel suspects to appear before the Tribunal, without the United Nations itself breaching international law in terms of kidnap, if it were to forcibly detain suspects. One way is the implementation of sanctions against the Indonesian Government, in terms of reduced financial assistance, to prove to them the solemnity of the need to abide by the tribunal's laws. Another is to extend the powers of arrest in a tribunal's statute that will allow military peacekeepers to apprehend indicted persons, without risk to them of breaching international laws.

72. Finally, discussion will focus on who should be brought to appear before an international criminal tribunal in East Timor.

    Indonesian and United Nations Reports into a Possible Tribunal

73. On 31 January 2000, the Indonesian Commission of Inquiry[80] announced that General Wiranto, the Indonesian armed forces chief, along with twenty-three military officers were responsible for human rights abuses in East Timor. The report found that General Wiranto had full knowledge of what the army was doing. The report also carried an appendix containing a further list of one hundred people suspected of abuses.[81] However, despite this implication of human rights abuses, the Indonesian investigation has stated that although General Wiranto is morally responsible for the atrocities in East Timor, legally there is no implication. The chairman of the Inquiry, Albert Hasibuan, has therefore stated that General Wiranto will not be indicted for any prosecution.[82]

74. Six other Indonesian generals have also been questioned by the Indonesian Commission and it is possible that charges will be brought against all of them. At this stage, it seems likely that General Wiranto will escape prosecution according to the Indonesian Commission.[83] The first thought that may come to mind is that although this inquiry is Indonesian, there is an obvious fear of bias. Contrary to what the Indonesian Inquiry has said, Indonesian opposition politician Amien Rais has stated that General Wiranto must be held responsible.[84]

75. In a recent interview with the British Broadcasting Corporation World Service, East Timorese resistance leader, Jose Ramos Horta, asserted that at the end of June 1999, General Wiranto boasted to him that "he could disarm the militia within two days, and he didn't because it was part of his strategy to terrorise the Timorese population into voting for autonomy, and failing that he would destroy East Timor, as they'd promised for many years."[85] Further, the Indonesian report suggests that "there was no genocide, no ethnic cleansing and in total only about eighty people died, and that the army was not involved in any of the violence except in a few sporadic cases."[86] This paper has suggested the contrary.

76. A United Nations mission of inquiry is also currently in the process of completing a fact-finding report to be presented to United Nations Secretary-General, Kofi Annan in the near future. The commission is made up of five human rights experts. Instigated on 15 November 1999[87] this investigation will decide whether there is sufficient evidence to proceed with an international tribunal. At this stage however, recent reports suggest that the United Nations is not sure of the type of tribunal it would want for East Timor, if at all. It is apparent that the United Nations does not want tribunals similar in nature to the former Yugoslavia and Rwanda, where they have taken place in independent countries and have given people long sentences. Rather, the emphasis suggests involvement of Indonesia and East Timor in the legal process.[88] This seems a practical solution, as despite the fact that justice must be done, the two nations will forever be neighbours. In the case of diplomacy, perhaps this may be one way of initiating the necessary healing process between Indonesia and East Timor.

    Conclusion

77. This paper has attempted to demonstrate that there is scope for the establishment of an International Criminal Tribunal for East Timor. This has been achieved by the background to East Timor's bloody history, leading to the obvious crimes against humanity which have existed during the past twenty-five years, to the comparison to the two most recent criminal tribunals, those of the former Yugoslavia and Rwanda. It cannot be refuted that the factual situations of atrocities committed in East Timor are on par with those committed in both Yugoslavia and Rwanda, with instances of breaches of Geneva Convention Protocols, crimes against humanity and genocide. As there is now a semblance of peace restored to East Timor, it essential that current investigations be completed in order to implement justice which has been twenty-five years in the waiting. As to the actual outcome of any investigations into a possible tribunal, one can only wait and hope. But for the sake of justice, anything but the implementation of an international criminal tribunal would cry foul of the struggle the East Timorese have now only overcome.