On August 30, 2009, East Timor'sFootnote ¹ Prime Minister, the former resistance leader Xanana Gusmão, quietly authorized the release of a man directly implicated in one of the country's most notorious massacres. Maternus Bere, a commander of the pro-Indonesian Laksaur militia group, had been indicted for his role in the September 1999 killing of as many as 200 unarmed supporters of independence who had taken refuge in the Catholic Church in Suai. Of the 40 victims whose identities could be determined, three were priests, ten were under the age of 18, and more than a dozen were women. The Suai Church massacre was part of a shocking campaign of violence that followed a United Nations-organized referendum in which Timorese had voted overwhelmingly for independence from Indonesia.

Like many others responsible for serious crimes committed in 1999, Bere had escaped unscathed to Indonesia in the orchestrated chaos that followed the referendum. Then, in August 2009, he had made his way back to East Timor, where he was captured and handed over to police. Gusmão's decision to release Bere to Indonesian authorities – a move that circumvented the judicial process and effectively guaranteed that he would not be prosecuted – passed without comment by the foreign dignitaries who had gathered in Dili for ceremonies marking the tenth anniversary of the 1999 referendum, but it provoked deep anger among East Timorese.Footnote ² Coming ten years to the day after they had risked their lives to vote for independence, it also sullied what many had hoped would be a joyful celebration of a defining moment in the country's history.

Viewed more widely, Gusmão's decision offers a glimpse of some of the problems that continue to plague East Timor as it approaches the tenth anniversary of independence in May 2012. Chief among these are the deep and lasting legacies of decades of violence and misrule; serious failings on the part of East Timor's own leaders, especially in the areas of justice and the rule of law; and a marked lack of commitment by major powers and the UN to the cause of accountability for past serious crimes.

Indonesian forces invaded East Timor (Figure 1) in early December 1975, just one week after a nationalist party, Fretilin, had declared the territory's independence from Portugal. The Indonesian invasion and subsequent occupation resulted in the death of at least 100,000, and possibly as many as 200,000, of a pre-invasion population of about 650,000. The scale of the killing in the first four years of the occupation was such that many scholars have described it as genocide.Footnote ³

Figure 1.

Map of East Timor. (United Nations)

Those best placed to prevent this tragedy – notably the United States, the UK, and Australia – instead actively lent their support to Indonesia. In a meeting one day before the December 1975 invasion, United States President Ford and Secretary of State Kissinger gave President Suharto repeated assurances that the United States would “understand” if Indonesia deemed it “necessary to take drastic action” in East Timor. Kissinger also offered Suharto some advice: “It is important that whatever you do succeeds quickly. . . We would be able to influence the reaction in America if whatever happens, happens after we return. This way there would be less chance of people talking in an unauthorized way.”Footnote ⁴

Over the next 24-years, powerful states largely turned a blind eye to Indonesian atrocities, and lavished the country's staunchly anti-communist leadership with economic and military assistance. Despite a growing chorus of criticism from human rights and church groups at home and abroad, Indonesia steadfastly rejected any suggestion that it should withdraw from East Timor, and largely got away with it. All of this started to change in May 1998, when President Suharto was forced to resign in the face of a deepening financial crisis and widespread street protests. His resignation opened the door for renewed negotiations between Portugal and Indonesia, and to a political solution in the form of a United Nations-supervised referendum for or against independence.

The referendum took place on August 30, 1999, amidst mounting intimidation and violence by supporters of continued Indonesian rule. Despite the threats, almost 80 percent of East Timorese voted in favor of independence. Sadly, within hours of the United Nations-organized vote, Indonesian forces and the local militias they had created launched a coordinated campaign of violence against real and presumed supporters of independence, including Catholic clergy and local UN staff. Over the next few weeks, some 70 percent of all buildings in the country were destroyed, 400,000 people were forcibly displaced from their homes, and at least 1,500 were killed.

Responding to widespread revulsion and protests at the one-sided violence, key powers including the United States and Australia pressured Indonesia to accept help in restoring order, and the UN Security Council authorized the swift deployment of a multi-national force. That force landed in late September and by the end of October the violence had ended. After a period of transitional UN administration, in May 2002 East Timor formally became independent.

As the tenth anniversary of independence approaches in 2012, there are legitimate grounds for celebration. The country has so far defied predictions that it would sink quickly into civil or ‘tribal’ war following Indonesia's withdrawal, or that it would prove to be economically unviable. In fact, East Timor has now conducted two rounds of Parliamentary and Presidential elections in a manner largely free of violence or fraud, and it is set to have another round in mid- 2012. No single party has monopolized political power, the idea of civilian rule appears to be widely accepted, and there is a reasonably free press. Thanks to its success in securing rights to large offshore oil reserves, moreover, it now has a substantial source of government revenue, as well as opportunities for future economic growth.

East Timor is not, then, the ‘failed state’ or economic basket case that many feared it would be. In fact, considering that the entire country was laid to waste and half the population forcibly displaced from their homes just twelve years ago, East Timor's current strength and stability ought to be seen as something of a success story. Nevertheless, there are problems. These include, most obviously, high unemployment especially among youth, allegations of corruption fueled by large oil revenues and cronyism, a lack of professionalism in the security forces, and weaknesses in the rule of law. Together, these problems have had the effect of generating impatience with the country's political leaders, and a general frustration that independence has not brought the benefits many had hoped it would. Less obviously, East Timor's future is threatened by the deep and lasting legacies of past violence and misrule.

In the decade since independence, political conflicts and rivalries that date to the occupation period and earlier have re-emerged, sometimes in new and surprising forms. Likewise, models or repertoires of violence inherited from earlier periods have reappeared, leaving an unmistakable mark on East Timor's political and social life. These legacies have been at the heart of some troubling incidents of violence, most notably between 2006 and 2008 when, according to some observers, the country came close to civil war, and they may well resurface in the years ahead.

One of the most resilient of these legacies has been the tradition of mobilizing irregular armed groups for political ends. Such groups, referred to at the time as militias, were the main perpetrators of the violence in 1999 when they operated with the support of the Indonesian Army, and especially Kopassus (Special Forces Command), an elite Army command specializing in covert operations and with a reputation for brutality. Since 1999, a wide variety of new groups, including martial arts clubs, criminal gangs, veterans organizations, and quasi-religious sects, have emerged across the country. Like the militias of 1999, many of these new groups have been involved in small-scale criminal activities, but also in political violence.

The similarities with the militias of 1999 have led to speculation that the new groups have been bankrolled by Indonesia as part of a strategy of destabilization. While some do trace their roots back to Indonesian times, most are led not by former advocates of Indonesian rule, but by past supporters of independence who have become dissatisfied with the fruits of freedom. It is also clear that many of these new groups are funded, mobilized, and sometimes supplied with weapons not by Indonesia, but by competing political and military factions within East Timor.

None of this should come as much of a surprise. Armed civilian groups have a very long history in East Timor, having been mobilized and trained by a succession of colonial powers, including Portugal, Japan, and Indonesia. That long history has helped to make them an integral part of the country's social and political fabric. It also means that the distinctive repertoires of violence used by these groups – house burning, beatings, terror, rape – are likely to survive long after the departure of their original patrons. That is all the more likely if East Timor's leaders continue to mimic their Indonesian, Japanese, and Portuguese predecessors by mobilizing such civilian groups for political ends.

Another of the enduring legacies of East Timor's history of violence has been the friction it created between those who supported or acquiesced in Indonesian rule and those who actively opposed it. Since 1999, that tension has appeared within and between the two national armed services, the Army (Falintil-Forças Defesa de Timor Leste, F-FDTL) and the Police (Policia Nacional de Timor Leste, PNTL). Many members of the police previously served with the Indonesian police in East Timor, while many in the army are former Falintil guerrillas who fought for more than two decades against Indonesia's security forces. That historical tension has been compounded by the fact that since independence the respective roles of the police and the army have not been clearly delineated. Against that background, the Fretilin government's decision in 2003 to establish three new paramilitary police units and to supply them with large quantities of modern weapons fueled anti-government anger on the part of elements of the army and some veterans groups.

Within the army itself, there has also been tension between soldiers from the eastern and western parts of the country. These tensions are a reflection of a wider conflict that dates to the period of the Indonesian occupation, when the western districts gained a reputation as pro-Indonesian strongholds, while those in the east were considered to be more steadfast in their resistance. The fact that most of the former Falintil guerrilla fighters in the new army come from the east while most of the new recruits come from the west has helped to fuel claims on the part of the westerners that they have been unfairly treated – among other things in the matter of rank and promotion – by those from the east who have occupied most command positions.

The frictions between and within the different services have been exacerbated – though in some instances also complicated or crosscut – by close bonds of personal and family loyalty, again dating back to the Indonesian occupation and earlier. Such bonds have served to link individuals and groups to powerful civilian and military figures, creating networks of patronage outside the formal chain of command. Those tendencies have been further compounded, and have been tipped in the direction of violence, by the willingness of some civilian and military leaders to distribute weapons unlawfully to their followers.

Finally, there have been conflicts among former resistance leaders based, at least in part, on strategic and political differences that date back to the 1980s. One of the more serious lines of tension has been between a group of senior Fretilin figures, like Mari Alkatiri, who spent the years of Indonesian occupation in exile, mainly in Mozambique, and those, like Xanana Gusmão, who remained in East Timor and/or Indonesia. These tensions resurfaced after 1999, as leaders from both camps returned to Dili and began to compete for political office. The expatriate group, sometimes dubbed the Maputo mafia, quickly asserted control of Fretilin and won a majority in the first Parliamentary elections in 2001, with Alkatiri as Prime Minister. On the other side, Gusmão pinned his political hopes on the new CNRTFootnote ⁵, and was elected to the less powerful position of President in 2002. Since that time, the rivalry between these two groups has been at the heart of much of the political competition and conflict in East Timor.

This cluster of lingering tensions and conflicts came to a dramatic head in 2006, in a cascading cycle of violence that left up to 38 people dead, destroyed some 6,000 houses and forced more than 150,000 people to flee their homes.Footnote ⁶ While the number of casualties was small compared to 1999, by some accounts the violence came close to escalating into a full blown civil war, and led to the forced resignation of the Prime Minister, Mari Alkatiri, the Interior Minister, Rogerio Lobato, and the Defense Minister, Roque Rodrigues. The crisis also triggered a decline in support for Fretilin in elections the following year, opening the door for Xanana Gusmão to become Prime Minister as the leader of a new multi-party coalition known as AMP (Alliance of the Parliamentary Majority).

The crisis began in January 2006, when a group of soldiers, angered by what they saw as unfair treatment by the army leadership, presented a petition to President Gusmão. Members of the group, who became known as ‘the petitioners,’ went on strike in February to press their demands but were ordered back to their barracks. When they refused to do so, they were summarily dismissed from the army. In April the petitioners organized a large demonstration in Dili, which was joined by a fringe group named ‘Colimau 2000’ and a large number of unemployed youth who had their own grievances against the government. When the demonstration turned violent, Prime Minister Alkatiri called in the army to restore order. The army's intervention that day resulted in the death of five protesters, and allegations of the deaths of many more.

The day's events became a lightning rod for simmering tensions within the army, and between the army and the police, leading to a breakdown in the normal chain of command and to the formation of make-shift alliances based on political, personal, and regional loyalties. Soldiers sympathetic to the petitioners and the demonstrators left their posts, and joined police units which had likewise taken the side of the petitioners. Among the most important of these ‘rebel’ soldiers was Major Alfredo Reinado, the commander of the military police who deserted his post on May 3 with 17 men and a large amount of ammunition, and joined up with some of the recently formed paramilitary police. By the end of May 2006, these tensions had degenerated into open conflict, with different elements of the security forces and their allies engaging in fire fights in Dili and elsewhere.

The violence was exacerbated by the decision of leaders on both sides to distribute firearms under their control to those, including members of veterans and civilian groups, whom they considered sympathetic to their cause. Particularly egregious were the actions of Interior Minister Rogerio Lobato, who illegally distributed arms to gang members and to police units sympathetic to him, while disarming some ‘eastern’ police units. On the other side, the commander of the army is said to have distributed weapons to sympathetic veterans groups and others, encouraging them to join the fight against the rebels and the police. The violence was further fueled by a popular perception, encouraged by some political leaders, that the conflict was between ‘easterners’ and ‘westerners’ – with the army representing the east and the petitioners and police representing the west.

The immediate crisis was defused through the direct intervention of international forces in May–June 2006. But the underlying tensions that fueled the violence had not been resolved. For one thing, the crisis had raised serious questions about the capacity and professionalism of East Timor's security forces, leading East Timor's government to agree to give UN police operational command, with the national police in a secondary role.Footnote ⁷ Meanwhile, rebel soldiers and police under the command of Major Reinado remained in the hills with some armed civilian groups and sympathetic police units. Charismatic and armed, Reinado and his followers came to be seen as heroes to many East Timorese frustrated by the lagging economy and high unemployment. Various efforts to arrest or negotiate with Reinado proved fruitless, and he remained in the bush with a substantial armed force through 2006 and 2007. This period, which coincided with campaigning for the 2007 elections, was also marked by continued insecurity and violence as local communities, mistrustful of the army and the police, turned increasingly to martial arts groups, gangs, and veterans groups to provide security.

The dramatic final act in the crisis came on February 11, 2008 when, in disputed circumstances, rebel troops (led by Lt. Gastão Salsinha and Major Reinado respectively) attacked Xanana Gusmão, who was now Prime Minister, and President José Ramos-Horta. While Gusmão somehow escaped unscathed, Ramos-Horta was critically wounded and had to be rushed to Australia for medical care. Reinado himself and one of his men were killed in the attack, and several rebel figures were later arrested.

Since then, the security situation has been outwardly calm, and some measures have been taken to address it. In 2008, for example, the AMP government briefly integrated the police and army into a Joint Command, and in early 2010 a court sentenced about two dozen of the rebels to between 9 and 16 years in prison. But the underlying problems that gave rise to the crisis have changed very little. Armed civilian groups continue to operate, tensions between and within the armed services persist, and old differences between former resistance leaders have not abated. Meanwhile, there are signs of a growing impatience with the current leadership, especially over allegations of corruption and cronyism. As the 2012 elections approach, and as the UN prepares to scale down and possibly end its mission in East Timor, there is a real possibility that these problems will resurface, and that renewed violence will be the result.

One way to disrupt such patterns of violence, human rights experts argue, is to ensure that those most responsible for serious crimes, including crimes against humanity and genocide, are brought to justice. The failure to do so can lead to a cycle of impunity, a lack of respect for the rule of law, and continued violence. Regrettably, more than ten years after Indonesian forces left East Timor, not a single Indonesian military officer or government official has been successfully tried for the crimes committed in 1999. A similar pattern is evident for the crimes, including murder, committed between 2006 and 2008. Despite abundant evidence linking certain individuals to those crimes, those recognized as most responsible remain free. Meanwhile, the handful of suspects who were convicted in 2010 have since been released after serving only a small fraction of their sentences.

Surprisingly, perhaps, among the main obstacles to the search for justice have been East Timor's own leaders – notably José Ramos-Horta, Xanana Gusmão, and Mari Alkatiri who since 2002 have all served either as Prime Minister or President, or both. For several years now, they have argued strenuously against what they call ‘punitive justice,’ against an international criminal tribunal, and in favor of ‘restorative justice’ and ‘reconciliation.’ Gusmão and Ramos-Horta have also been strong proponents of amnesty for those accused or convicted of serious crimes, and have issued pardons and commutations to some of the country's most notorious criminals. Their argument, in essence, is that reconciliation with Indonesia, and among East Timorese, is essential to the country's stability and security, and that justice must therefore take second place.

That position undoubtedly reflects the country's profound political and economic vulnerability, compounded by continued pressure from Indonesia that will not countenance any attempt to prosecute members of its armed forces. It may also reflect genuinely held beliefs. The ideal of national unity was, after all, central to Gusmão's political vision long before independence, and lay at the heart of the impressive nationalist coalition (CNRT) he and Ramos-Horta formed to achieve that goal.

And yet, coming from these men, the argument that justice must take second place to national stability and security is an extraordinary one – particularly when one considers that in their long struggle for independence, they relied so heavily on claims about the universality of human rights, and routinely castigated Indonesia for seeking to justify systematic human rights violations in East Timor with almost identical arguments about stability and security. Those similarities may also explain why their appeals to reconciliation and unity over and above justice sound a decidedly discordant tone among many East Timorese.

Whatever the reasons for it, their position has been reflected in a series of troubling official decisions and statements in recent years. In March 2005, for example, Gusmão, then President, agreed to establish with Indonesia a joint Commission on Truth and Friendship (CTF), ostensibly to establish the “conclusive truth” about the events of 1999 – but with the clear understanding that the commission's goal would be reconciliation and not justice. Indeed, the CTF was self-evidently an effort to deflect demands for justice and in particular an international criminal tribunal. As an expression of their contempt for the new body, which was also known by the acronym TFC (Truth and Friendship Commission), some East Timorese began to call it ‘Timor Fried Chicken.’ When the Commission's final report was made public in mid-2008, it surprised critics by stating clearly that crimes against humanity had indeed been committed by Indonesian forces and their local allies. As feared, however, it was silent on the question of justice, and the government welcomed it warmly in the name of reconciliation.Footnote ⁸ Since then, it has come to be widely accepted that the report “was a tacit declaration that, as a result of private discussions between the two governments, there would be no further prosecutions.”Footnote ⁹

In that regard it was telling that in May 2008, shortly before the CTF report was made public, President Ramos-Horta pardoned dozens of prisoners, again in the name of reconciliation and unity. Among those released was Joni Marques, a former commander of Team Alfa, a pro-Indonesian militia group based in Lautem. Marques had been sentenced to 33 years and four months in prison in 2001 for his role in organizing the ambush and murder of nine people, including five Catholic clergy, in late September 1999.Footnote ¹⁰ According to testimony at trial, one of those killed in the ambush, Sister Erminia, had knelt down by the roadside to pray during the attack. As she prayed, a militiaman slashed her with a machete. Another testified that he had yelled “Don't kill a Sister!” but that Joni Marques had replied “Kill them all! They are all CNRT!” A militiaman then picked up Sister Erminia and threw her in the river, before shooting her twice.

Then, as described above, on August 30, 2009, the 10^th anniversary of the referendum, Prime Minister Gusmão controversially approved the transfer to Indonesian custody of Maternus Bere, the notorious former pro-Indonesia militiaman who had been indicted by East Timor's Prosecutor General Office for crimes against humanity, but never tried.Footnote ¹¹ The mood of celebration was further dampened by the public comments of President Ramos-Horta during the ceremony and over the next several weeks. With dozens of foreign dignitaries in attendance, the President told East Timorese that they should forget about the past, and set aside idle demands for justice.Footnote ¹² At about the same time, Ramos-Horta strongly advocated a policy of complete amnesty for all serious crimes committed between 1974 and 2008.Footnote ¹³

The government assault on the idea of accountability gained further momentum in 2010. In an address to the UN's Human Rights Council in March of that year, Ramos-Horta ridiculed Amnesty International, whose support he had routinely courted – and which countless East Timorese had looked to for support – during Indonesian rule, as a “fringe group,” because it had called for an international criminal tribunal for East Timor.Footnote ¹⁴ In an even more controversial move, in August 2010 the government granted a full amnesty to Gastão Salsinha and 22 others who had been sentenced for their involvement in the 2008 assassination attempts just a few months earlier. Though it was portrayed by Ramos-Horta as an act of generosity and reconciliation, the decision was met with incredulity by many East Timorese. Why, they asked, do those who have threatened the very integrity of the state go free, while petty criminals remain in jail?Footnote ¹⁵

Throughout this period, government leaders also poured cold water on the findings of the country's own truth commission, the CAVR (Comissão de Acolhimento, Verdade e Reconciliação – Commission on Reception, Truth and Reconciliation) whose comprehensive final report, Chega!, was presented to the President in late 2005.Footnote ¹⁶ Among other things, the report called for those responsible for crimes committed between 1975 and 1999 to be brought to justice, if necessary before an international criminal tribunal. More than six years later, no action had been taken by the government or by parliament on the report's many detailed recommendations.

In addition to undermining efforts to see that justice is done, the actions of East Timor's leaders have alienated many ordinary citizens, particularly those who lost loved ones in the periods of violence. The problem was neatly summed up by a man from Viqueque: “I have doubts about reconciliation. My father was murdered. Do you think I can reconcile with the person who killed him? I suggest that the offender be punished.”Footnote ¹⁷ More generally, the contempt shown by East Timor's leaders for the very idea of the rule of law – and their embrace of the idea that justice must be sacrificed for stability – threatens to weaken the country's already fragile judicial system at a critical juncture in its history.

It would be a mistake, however, to lay the blame for East Timor's failings solely at the feet of the country's own leaders. The truth is that, for better or for worse, East Timor's fate has been, and continues to be, profoundly shaped by the actions, attitudes, and interests of powerful states and international bodies like the UN.

Despite the terrible bloodshed and destruction that preceded it, the multinational intervention of late September 1999 has generally been regarded as a model of what the UN might do when it has the support of major powers. After all, this was a rare instance in which timely intervention stopped what some observers thought might become a genocide. It certainly compared favorably to the record of the previous 24 years, during which the United States and its allies aided and abetted Indonesia as it conducted a destructive war of occupation in East Timor. Likewise, the international community has sometimes played a positive role since 1999 as well, most notably through its timely and effective action in the crisis of 2006–08.

Unfortunately, during this same period, a handful of influential states – notably the United States and Australia – have reverted to an earlier mode in which narrow ideas of national interest, and Indonesian preferences, have been routinely accommodated at East Timor's expense. Over the past few years the failings of the UN in East Timor have also become increasingly obvious, leading to calls for the prompt end to its mission there.Footnote ¹⁸ Much of that criticism is well-deserved. Particularly in recent years, the UN mission in East Timor (UNMIT) has been a disappointment. Through a combination of incompetence and poor management it has arguably complicated the job of establishing a well-functioning state, while angering many East Timorese who once had high regard for the UN. Nowhere perhaps have the failings of the international community been more evident than in the area of accountability for past crimes. The need to punish the perpetrators of serious crimes in East Timor has been clearly articulated in no fewer than six expert reports and reviews issued since 1999.Footnote ¹⁹ At the same time, key powers and the UN Security Council have been unwilling to back the cause of justice in any meaningful way. As a consequence, the demand for accountability has effectively been derailed, and the idea of an international tribunal has been shelved.

This basic pattern emerged just a few months after the violence of 1999 had ended. Eager to mend relations with Indonesia and in particular with the Indonesian Army (TNI), the Clinton and Bush administrations sought to restore military ties that had been cut in mid-September 1999, and began to soften demands for an international inquiry.Footnote ²⁰ That position was rooted in a general reluctance to support international criminal tribunals, partly for reasons of cost, and partly out of a concern that United States personnel might easily be brought before them. The priority of restoring good relations with the TNI was given added impetus after September 11, 2001, and the declaration of Southeast Asia, including Indonesia, as a ‘second front’ in the ‘war on terror.’

Needless to say, the lack of support for an international tribunal among key states, and also within the UN, emboldened Indonesian resistance to the idea. Indonesian authorities set about, usually without resort to evidence, to challenge the most basic conclusions reached by all previous investigations and to deflect demands for an international judicial process. In 2001 Indonesia established the Ad Hoc Human Rights Court to try cases arising from the events in East Timor. Of the 18 people charged with crimes against humanity committed in 1999, 12 were acquitted in first instance trials, and six were later acquitted on appeal, including the notorious militia leader Eurico Guterres. No Indonesian officers or officials were ever jailed, and some were actually promoted and appointed to sensitive command positions.

While Indonesia was staging show trials that some expert observers believe were designed to fail,Footnote ²¹ East Timor's fledgling judiciary, with UN assistance, was starting to conduct something closer to a serious investigative and judicial process. In 2000, the UN Transitional Authority in East Timor (UNTAET) enacted a statute establishing the Special Panels for Serious Crimes to try serious crimes including crimes against humanity. UNTAET also established a Serious Crimes Unit with a mandate to investigate and prosecute serious crimes committed in 1999. By early 2005, indictments had been filed against a total of 391 individuals and of those more than 80 were eventually tried and sentenced. Given the fact that East Timor had no functioning judiciary in 2000, this was a remarkable achievement – an example of effective and meaningful international cooperation and assistance.

Yet the picture was not all rosy. For one thing, as the Serious Crimes Unit's UN mandate expired in May 2005, the vast majority of those indicted, including several senior military officers, remained at large in Indonesia effectively beyond the court's jurisdiction. In the years since, the UN Security Council has shown a lack of commitment to pursuing further prosecutions. When the Security Council took up the issue again in 2006, for example, it created a unitFootnote ²² with a mandate to continue investigating serious crimes, but with no authority to ensure their prosecution. As a consequence, to date the only cases that have been tried in East Timor are those of local militiamen; and since 2006 only three serious crimes cases have been heard.Footnote ²³

This situation has led to growing frustration among East Timorese, who have noted with dismay that it is only East Timorese of lowly means who are being caught up in the judicial net, while the big fish go free. That view has been expressed on many occasions in East Timor since 1999, most memorably at a public hearing on massacres held by the CAVR in November 2003. “It is wrong,” one speaker said, “for the courts to try only low-level East Timorese militiamen, when it is well understood that the crimes they committed were part of a plan conceived and coordinated by Indonesian authorities.”Footnote ²⁴

Against this backdrop, in January 2005 the UN Secretary-General appointed a Commission of Experts to assess the progress made by the judicial processes in Jakarta and Dili, and recommend measures to ensure that the perpetrators would be held accountable. In its May 2005 report, the Commission concluded that the Jakarta process “has not achieved accountability for those who bear the greatest responsibility for serious violations.”Footnote ²⁵ On the basis of these findings, it recommended that, unless Indonesia took prompt measures to remedy these shortcomings, the Security Council should “adopt a resolution under Chapter VII of the Charter of the United Nations to create an ad hoc international criminal tribunal for Timor-Leste, to be located in a third State.” Those conclusions and recommendations found further support in the final report of the CAVR, completed in late 2005, and a report commissioned by the UN Office of the High Commissioner for Human Rights, published in 2006.Footnote ²⁶

Despite this growing consensus on the urgent need for justice, no meaningful action has since been taken to bring those responsible to account. Indeed, governments that once advocated accountability and justice now speak instead of the need for reconciliation. The change in attitude was poignantly captured in the silence of foreign dignitaries and governments when East Timor's leaders agreed to transfer the indicted militiaman, Maternus Bere, to Indonesian authorities in August 2009.

The shift away from justice has been further reinforced by continued United States efforts to restore cordial relations with the Indonesian military in recent years. A crucial move in that direction came in July 2010 with the announcement in Jakarta by Defense Secretary Robert Gates that the United States would be resuming ties with Indonesia's notorious Kopassus after a 12-year hiatus. Aware that the decision was controversial, Gates stressed that Kopassus training would not begin immediately, and that future cooperation would be contingent on “the continued implementation of reforms within Kopassus” and the military as a whole.Footnote ²⁷

The proponents of this move have sought to justify it on the grounds that Indonesia and its military have changed since 1999; that as a vital partner in regional security and the fight against Islamist extremism Indonesian forces must receive United States backing; and that the best way to influence those forces is to train them. These are familiar arguments. In some form they were used by supporters of Indonesia at various stages during the regime of General Suharto – with the exception that the enemy to be fought then was global communism rather than global terror. But these arguments are no more convincing now than they were then. While it is certainly true that Indonesia has become more democratic since 1999, and there has been modest reform within the country's military and police, to date there has been no meaningful reform within Kopassus. Indeed, Kopassus stands out as the military institution in which reform is both most urgently needed and most deeply resisted. Senior Kopassus officers routinely dismiss concerns about the unit's human rights record as overblown and demands for justice as unwarranted. No Kopassus officer has been tried and convicted for any of the crimes against humanity committed in East Timor from 1975 to 1999, and many suspected of such crimes in East Timor and elsewhere have been promoted to senior positions inside and outside the military. There is little reason, moreover, to believe that United States ties with and training of Kopassus will lead to reform as the advocates of restoration claim. Indeed, the historical record shows that the only time the United States and other states have managed to influence the Indonesian military in a positive way has been by cutting ties, as they did briefly in 1999.

In making the decision to restore United States ties with Kopassus, then, the Obama Administration may have given too much room to considerations of regional security at the expense of concerns about justice and accountability for serious crimes. That decision could have profound consequences in East Timor and in Indonesia, where the institutions of justice and respect for the rule of law are still struggling to recover from decades of violence and authoritarian misrule.