Timor trial's devil is in the details

Indonesian President Abdurrahman Wahid's promise to create an ad hoc human rights tribunal for crimes against humanity in East Timor was hailed as a major breakthrough when it was announced Monday. But lawyers and diplomats, after reading the fine print, say the effort is likely to fail.

The presidential decree creating the tribunal rules out prosecution of two of the five priority cases Attorney General Marzuki Darusman identified when he began his investigation in late 1999.

A third priority case - the murder of former Monitor contributor Sander Thoenes - has been set aside for the time being for lack of evidence, according to an official in the attorney general's office. UN investigators say Mr. Thoenes was murdered by members of the Indonesian Army's Battalion 745.

The wording of Mr. Wahid's decree allows only for crimes committed after East Timor's Aug. 30, 1999, independence ballot to be prosecuted. Investigators have spent countless hours building cases around two massacres committed in April of that year by militias backed by Indonesia's military.

It's the latest in a pratfall-filled prosecution that has many questioning the government's intentions. Legal experts say Mr. Marzuki also missed a key deadline for filing charges, which could lead to the dismissal of any prosecution effort. "Are the mistakes on purpose or just the result of incompetence? I don't know," says Asmara Nababan, chairman of the National Commission on Human Rights.

"Thanks to these errors, the accused will hold all the cards," says a diplomat in Jakarta. "We expect the prosecutions to be dismissed." Bolstering that opinion has been the way militia leaders have appeared to toy with the prosecution. One example: Militia leader Izidio Manek, accused of participating in the massacre of 100 people in the town of Suai, has been dropped from the prosecution's plans, "because we can't find him," according to an official at the Attorney General's office. Last week, a group of Indonesian journalists met with Mr. Manek on a trip to Indonesian West Timor arranged by the military.

The promise of the tribunal follows a year of international pressure on Indonesia from Western governments and the United Nations to prosecute senior officers for crimes in East Timor. Last week, the UN Human Rights Commission, after intense negotiations with Indonesian diplomats, issued a statement saying it accepted Indonesia's demand that it be allowed to hold its own prosecutions rather than allow the international community to step in. "This is another case of Indonesia doing just enough to make it look like progress is being made, without actually accomplishing anything," says the diplomat.

The former Portuguese colony of East Timor was annexed by Indonesia in 1976. In 1999, the government of then Indonesian President B.J. Habibie bowed to international pressure to allow a UN-administered independence vote for the territory.

Before the vote, the Indonesian military created militias to terrorize the population away from independence support, and then used them to punish the territory for its choice - killing more than 500 and driving 250,000 East Timorese from their homes.

Mr. Nababan of the Commission on Human Rights says Wahid might revise his decree to allow a broader mandate for the prosecution, but worries that will take months, given popular Indonesian opposition to trials for East Timor. Most Indonesians see the militias as patriots.

The two cases that appear to be ruled out - involving a massacre in Liquica and a massacre in Dili -were the ones Marzuki had originally thought likeliest to yield convictions because investigators found a combination of calculated brutality, dozens of eyewitnesses, and the links between the militia groups and the Indonesian military.

In early April 1999, the Red-and-White Steel Militia entered a church in the district capital of Liquica and slaughtered at least 50 of the refugees seeking safety there, investigators say.

Later that month, the Thorn Militia of Eurico Guterres murdered 12 people in the Dili home of independence activist Manuel Carrascalao. Mr. Guterres watched as the bodies of the victims, including Manuel's 18-year old son, were dumped in the family's well, according to witnesses. Mr. Carrascalao is now the head of the East Timor National Council, an interim parliament until elections are held in August.

The attorney general's spokesman Mulyohardjo acknowledged in a phone conversation yesterday that Aug. 30 appears to be a cut-off date, but said the earlier cases could still be prosecuted as general criminal cases. "We're ready to go to trial as soon as the judges are picked," he said. "The date that the crimes were committed doesn't matter." But Nababan, who helped draft Indonesia's human rights legislation, disagrees. He says it will be easy for the defense to have charges dismissed.

Running concurrently with Indonesia's prosecution has been a more modest UN effort in East Timor, focusing on rank-and-file militia members. Though the UN's Serious Crimes unit has evidence of the command responsibility of Indonesian generals and militia leaders now in Indonesia, it hasn't pushed hard for extradition. "The approach has been to allow Indonesia the right to have its own prosecutions," says Mohammad Othman, the UN's chief prosecutor in East Timor. Mr. Othman adds that could change if prosecutions don't yield credible results. "We're concerned that the decree only allows for prosecutions of crimes after the popular consultation."

To be sure, Indonesia has named some senior generals as suspects in severe rights violations. They include Maj. Gen. Adam Damiri, the most senior officer with direct oversight of operations in East Timor in 1999, and former East Timor military Commanders Brig. Gen. Tono Suratman and his successor Col. M. Noer Muis. General Wiranto, the commander in chief of the armed forces at the time, who has been implicated by both UN and Indonesian government investigations, has not been included on the attorney general's list of suspects "for lack of evidence," Mulyohardjo says.

(c) Copyright 2001. The Christian Science Monitor