Features

June 30, 2008

Indonesia: A Case of Impunity

The Indonesian Supreme Court recently overturned the conviction of pro-government militia leader Eurico Guterres, who had been sentenced to 10 years in prison for crimes against humanity committed in East Timor in 1999.

Guterres was among 18 people indicted by the Ad Hoc Human Rights Court for crimes against humanity committed in East Timor in 1999. With his recent release, all 18 defendants have now been acquitted.

In light of the stalled release of the bi-lateral Commission for Truth and Friendship's final report, and the recent commutations of sentence provided to prisoners convicted of serious crimes in Timor-Leste, the Indonesian Court's acquittal of Eurico Guterres is another set-back for justice. The ICTJ strongly criticizes the Court's decisions and urges the UN secretary-general to address the issue of justice for the 1999 crimes committed in East Timor at the UN Security Council.

An overview and analysis of the decision follows. Click here to download the analysis in pdf, click here for the Indonesian version.

To download the Court's decision in English, click here, in Indonesian, click here. 

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OVERVIEW OF THE INDONESIAN SUPREME COURT'S DECISION IN THE EURICO GUTERRES CASE

 

On March 13, 2008, the Indonesian Supreme Court overturned the conviction of Eurico Guterres, the militia leader who was sentenced to 10 years in prison for his role in a massacre of 12 people in East Timor in 1999. The court's decision was not publicly reported until April 4, and several days later Guterres left prison.

The facts of his case date back almost a decade to when Indonesia agreed to give East Timor the choice of independence or local autonomy.[i] Anti-independence militias such as the one Guterres commanded undertook a campaign of terror intended to threaten people before and after the United Nations-administered referendum took place in August 1999. An estimated 1,500 people were killed during that year. The violence made international news, and in response to international pressure, Indonesia established an Ad Hoc Human Rights Court for East Timor. Guterres was one of 18 people tried before that court.

The Indonesian Attorney General indicted Guterres for his role as commander of the Aitarak ("Thorn") militia and as deputy commander of an umbrella organization for militias that was called the Pro Integration Fighters (PPI). According to the indictment, on April 17, 1999 Guterres gave a speech to armed members of PPI and Aitarak during a rally before the Governor's Office in Dili, East Timor's capital. Guterres said supporters of independence must be killed, particularly pro-independence leader Manuel Carrascalao and his family. At the time, Carrascalao was sheltering 136 refugees from throughout the country at his home near the Governor's Office. Immediately after the rally, members of the militias attacked Carrascalao's house and killed 12 people, including his teenage son.

The attorney general charged Guterres with command responsibility for the attack on the basis that he knew his subordinates in Aitarak and PPI intended to commit murders at Carrascalao's home and did not take measures to prevent them. He also failed to hand militia members over to investigators after the attack.

In 2002, Guterres was convicted and sentenced to 10 years in prison, the minimum sentence under Indonesian law for the crime against humanity of murder. In 2004, the court of appeal upheld his conviction, but reduced his sentence to five years; the Supreme Court later overturned the reduction on appeal.

On Sept. 13, 2006, Guterres applied to have his conviction reviewed under Article 263 of the Indonesian Criminal Procedure Code. This provision is designed to address situations that appear to be miscarriages of justice even after a case has been tried and appealed in the courts. The article allows the Supreme Court to reconsider cases in which new evidence becomes available, a previous decision contained a blatant error, or when a decision clearly conflicts with the reasons outlined in it.

The Supreme Court's decision:

Guterres based his review request on three claims:

1 - Increasing his sentence to 10 years from five years imprisonment was improper.

2 - The Supreme Court's decision had a "clearly visible flaw."

3 - New evidence showed that he should be acquitted.

The court accepted all three, but did not discuss the first claim, presumably because it became moot once the grounds for overturning the conviction were upheld. While the judges' reasons are not clearly structured or well explained, their approach was roughly as follows:

There was a "clearly visible flaw" in the supreme court's previous decision.

To support this, the court stated the elements of a crime against humanity and then found that no such crime was committed for the reasons outlined below:

• There was no proof that PPI had a policy of attacking civilians. Rather, in the context of a pattern of "clashes" between pro-independence and pro-integration groups, "civil security organizations" were charged with improving security. The court found that the attack on the Carrascalao home, which was a haven for pro-independence refugees, happened spontaneously when people leaving the rally heard screams for help from pro-integration supporters who were held against their will within the house.
• The victims in the incident were not civilians; they were "actually part of a group that was actively fighting and conducting attacks, namely the pro-independence group."

 

The court then decided that even if a crime had been committed, Guterres did not have command responsibility for the crime because:

• As a civilian superior, not a military superior, he did not have effective de jure or de facto authority over PPI "because he clearly did not have sufficient authority or personnel to stop the attack carried out by his men." The court found that to have command responsibility, Guterres would have to have had the same level of authority as a military superior. This then would have involved a clear chain of command and given Guterres the power to issue binding instructions to his unit and to punish subordination. 

New circumstances emerged.

Guterres wanted to introduce a range of "new circumstances," including testimony from a witness that supported his position. However, in its ruling, the court mentions only the "new circumstance" of the acquittal of former East Timorese Gov. Abilio Soares, who also had been charged with the attack on the Carrascalao house. The Supreme Court eventually acquitted Soares.

The court's reasoning on this point appears to be that because Soares appointed Guterres to his position in PPI, the governor was his superior. So since Soares was acquitted of all charges, his subordinate Guterres should also be acquitted "in the interest of justice and fairness."

Comments on the judgment:

Although the court received about 22 pages of arguments from Guterres - all of which were included in the final ruling - the court's reasons for its decision cover only a little more than four pages. The court upheld his three main arguments, but failed to mention the vast majority that were in his application. It is unclear whether they were accepted or rejected.

In respect to the arguments the court does mention, minimal or no analysis is provided. The court's decision reads more like a series of assertions of fact than a consideration or review of a previous decision. This is particularly clear in respect of some of the findings mentioned, namely:

• That the people killed in Carrascalao's house were not civilians.
• That Guterres did not have effective control over his men.
• That PPI did not have a policy of attacking civilians.

 

The court makes these findings of fact without providing reasons or evidence that supports them. Moreover, despite the fact that the court only has a mandate to reconsider the case if there is a clear error in the previous decision, it does not identify any flaws in the prior judgments of the district, appellate and supreme courts, each of which found Guterres guilty. Instead, the current Supreme Court merely asserts that there is a "clearly visible flaw," then goes on to express its own views.

The court's reasoning also contains a number of politically charged findings that are not relevant to the legal issues in question. These are interesting for what they may reveal about the judges' preconceived notions of what happened in East Timor in 1999. The court stated:

• "It is a legal fact that in East Timor there were two groups in the community, namely pro-integration and pro-independence, and clashes between these two groups had been occurring over a long period of time."
• The rally on April 17, 1999, was organized by the civil administration to guarantee the security of the community and to make sure the vote could be carried out peacefully.
• The "clash" at Manuel Carrascalao's house "occurred independently from the speech made by [Guterres]."
• "That the provision of the two options would result in an increase in clashes should have been predicted by observers of international law located in country and overseas...
  and this matter should have been taken into account, however it was not given any attention."
• The governor of East Timor, Abilio Soares, "did not agree with the two options because large-scale disturbances would result."

 

These comments in the judgment are consistent with the version of events that senior members of the Indonesian security forces and government have repeatedly presented to the media, during other trials in the Ad Hoc Court, and most recently in the 2007 hearings of the Indonesia-Timor-Leste Commission for Truth and Friendship. These assertions rely on a claim that the mass violations in 1999 were caused by ongoing grassroots conflict between pro-independence and pro-integration supporters and later by UN electoral fraud that angered the pro-integration groups. This explanation is contradicted by:

• Numerous decisions of the UN-backed Special Panels for Serious Crimes in Timor-Leste.
• The December 1999 report of three UN Human Rights Commission special rapporteurs.[ii]
• The January 2000 report of the International Commission of Inquiry on East Timor, established by the UN secretary-general.[iii]
• The January 2000 Report of the Commission of Investigation (KPP-HAM), established by the Indonesian Human Rights Commission.[iv]
• The 2001 expert report commissioned by the United Nations Transitional Administration in East Timor (UNTAET) prosecutor general.[v]
• The 2003 expert report commissioned by the UN Office of the High Commissioner for Human Rights.[vi]
• The 2005 report of the East Timor Commission for Reception, Truth and Reconciliation (CAVR).[vii]

 

All of these found that members of the Indonesian security forces and the militia groups they controlled violated humans rights in East Timor in a deliberate attempt to intimidate people into either voting for integration or not voting at all. After the vote, these same groups punished those who chose independence.

It is disturbing that the Indonesian Supreme Court should include such widely discredited assertions in its decision without any reference to evidence supporting them or any explanation of why the assertions were accepted.

Finally, the court's finding that Guterres should be acquitted because Soares was is particularly troubling. This approach appears to be based on fundamentally flawed reasoning. Guterres's criminal responsibility is independent of, and not in any legal or factual way conditional on, Soares's guilt or innocence.

It is very common for a number of people to be charged with crimes that arise from the same set of circumstances; often one person may be convicted while another is acquitted. This is logical because each case is affected by the different roles the individuals played, as well as their intentions and the acts they carried out. Defenses may apply to one defendant, but not another. When two people are tried on the basis of separate indictments, as Soares and Guterres were, different facts may be alleged in either case. And when the accused are tried separately - as the two men were - different pieces of evidence may be admitted in each case; the trials' judges might view even common evidence differently.

The Indonesian Supreme Court stated that since Soares was acquitted, then his subordinate Guterres cannot be convicted. This implies that any time a senior commander is not found to be responsible for his men, then none of those serving him can be guilty of a crime.

This is not correct. Very often subordinates are found guilty of crimes while their commander (in this case Soares) is either not charged or is acquitted. Subordinates can commit crimes without their commander's knowledge or involvement.

Comment on the justice process:

In December 1999 the three special rapporteurs of the UN Human Rights Commission who visited East Timor recommended that "[u]nless, in a matter of months, the steps taken by the Government of Indonesia to investigate TNI involvement in the past year's atrocities bear fruit ... the Security Council should consider the establishment of an international criminal tribunal for the purpose."[viii] The following month, the UN's International Commission of Inquiry on East Timor went further, recommending that instead of waiting for Indonesian action, the UN should immediately establish an international independent investigation and prosecution body and an international tribunal.[ix]

The UN did not follow through on either of these recommendations. Encouraged by the work of KPP-HAM and the establishment of the Ad Hoc Court for East Timor, it took the position that Indonesia should first be given the chance to prosecute those responsible for the crimes committed in 1999.

It was clear early, however, that the Ad Hoc Court would not produce credible results.[x] Because of this, the UN received more requests to establish an international criminal justice mechanism.[xi] In February 2005 the secretary-general created a Commission of Experts to review the prosecutions of those charged with human rights violations in East Timor. Three months later, that commission produced a report that was highly critical of the Ad Hoc Court process. The report's authors recommended that the secretary-general give Indonesia six months to take specific measures that addressed the situation. If Indonesia did not act within that time, then an ad hoc international tribunal should be established in another country.

Nothing has been done since then. The Security Council asked the secretary-general to produce a report on justice and reconciliation in East Timor, with a "practically feasible approach" that took into account the views of the 2005 commission, as well as those of the Indonesian and Timor-Leste governments. The result was a report recommending simply that the two governments work on strengthening their domestic judicial systems.[xii]

Eighteen people, including a number of senior Indonesian military officers, were indicted for trial before the Ad Hoc Court in relation to crimes committed in East Timor during 1999. Only six were convicted at trial, but following a range of appeals these six have now all been acquitted. This contrasts starkly to the record of the UN- sponsored "Special Panels on Serious Crimes" in Dili that produced 84 convictions and three acquittals for crimes that arose from the same set of circumstances.

Three hundred and thirteen people who were indicted through the serious crimes process remain at large; most of them are probably in Indonesia, outside the jurisdiction of the Special Panels yet within the jurisdiction of the Indonesian courts. That country has not taken any action to try or extradite these people.

The fact that many of the atrocities committed in East Timor in 1999 amounted to crimes against humanity[xiii] dictates they are not domestic issues. This is not simply a matter that may be dealt with by only the countries whose citizens were involved. The nature and degree of the violations concern all people and all nations. Furthermore, the crimes were committed directly against the United Nations because at least 14 local staff members of the UN's Mission in East Timor were killed. The UN and the international community as a whole therefore have a duty to ensure that the people responsible for the atrocities are prosecuted.

Now that Indonesian courts have acquitted all 18 people indicted and the process of accountability has resulted in a 0 percent success rate, it is time to revisit this issue. It is particularly important, given the expectation that the bilateral Commission for Truth and Friendship (CTF) will soon release its report on whether or not crimes against humanity were systematically committed in East Timor in 1999 and if so which institutions bear responsibility. Unfortunately the CTF's Terms of Reference prohibit it from recommending prosecutions.

The Indonesian Supreme Court decision is the latest in a series of strong indicators that Indonesia is "unwilling or unable" to genuinely prosecute and try those responsible for crimes against humanity in East Timor. Unless an independent international mechanism is established, it is unlikely that justice for the crimes committed in East Timor will ever be achieved. The UN secretary-general should report back to the security council about the lack of progress in Indonesia. A number of bodies, including the UN's International Commission of Inquiry and the UN Commission of Experts, have recommended the establishment of an international criminal tribunal. It is clearly time for this recommendation to be seriously reconsidered in the light of the indisputable total failure of the domestic process in Indonesia.

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[i] Eventually the independence option was successful, winning 78.5 percent of the votes.

[ii] "Situation of human rights in East Timor," Dec. 10, 1999, UN Doc. A/54/660.

[iii] "Report of the International Commission of Inquiry on East Timor to the Secretary-General," January 2000, in UN Docs A/54/726 and S/2000/59.

[iv] Partial English version available at www.jsmp.minihub.org/Resources/2000/KPP%20Ham%20(e).htm.

[v] James Dunn, "Crimes Against Humanity in East Timor, January to October 1999: Their Nature and Causes," Feb. 14, 2001, available at www.etan.org/etanpdf/pdf1/dunn.pdf.

[vi] Geoffrey Robinson, "East Timor 1999: Crimes Against Humanity," July 2003 (published 2006 by Hak Association and ELSAM). An earlier version of the report is included as an annex to the Final Report of the Commission for Reception, Truth and Reconciliation, available at www.cavr-timorleste.org.

[vii] Chega! Final Report of the Commission for Reception, Truth and Reconciliation, available at www.cavr-timorleste.org.

[viii] See note 2 above, para. 74(6).

[ix] See note 3 above, paras 152-153.

[x] See David Cohen, "Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta," ICTJ Occasional Paper Series, July 2004.

[xi] See Geoffrey Robinson, note 6 above, p. 228.

[xii] "Report of the Secretary-General on justice and reconciliation in Timor-Leste," July 26, 2006, UN Doc.  S/2006/580.

[xiii] According to the Special Panels for Serious Crimes, the CAVR, KPP-HAM, and the expert report commissioned by the UN Office of the High Commissioner for Human Rights.