Reluctant to prosecute

They have a motive, a witness to the killing, and a mound of supporting evidence. Yet Indonesian prosecutors remain reluctant to bring the alleged murderers of Dutch journalist Sander Thoenes to trial.

The failure to prosecute is at the center of a growing dispute between Indonesia and Western governments – particularly the European Union – over the credibility of the trials Jakarta is holding for atrocities committed in East Timor in 1999.

United Nations and Dutch investigators say Mr. Thoenes, a former Monitor contributor, was murdered by Indonesian Army Battalion 745. He was one of 12 civilians killed by the battalion in three days in September 1999, as it withdrew in anger from East Timor.

"This is probably the best documented atrocity in East Timor, and the one that most clearly demonstrates a pattern of abuse by the Indonesian military," says a European Union diplomat.

He and other EU officials say they fear it isn't being pursued precisely because it makes such a good case against senior officers. In recent weeks, the military has mounted a strong rearguard action against taking any of the blame for what happened in East Timor.

Indonesia convened an ad hoc human-rights tribunal for 18 soldiers, civilian administrators, and militia members in Jakarta last month. Western diplomats say the cases before the court don't draw the lines between command authority and action that the Thoenes murder – and the overall conduct of the battalion – does.

The military officers being tried are charged with failure to stop violence, rather than responsibility for planning or encouraging it. The military says those accused of direct acts of violence – militia members and civilian officials – were beyond its control.

"That's why the case of Sander Thoenes is linked to the credibility of the whole tribunal,'' says the European diplomat.

Maj. Gen. Adam Damiri, the senior officer responsible for East Timor at that time, said this month that "fraud" by the UN in the ballot process led to "riots" by outraged supporters of Indonesia. Former armed forces chief General Wiranto also blamed UN bias for the violence, saying that the military struggled to "restore peace."

"It was as if they were saying: 'We're closing ranks, there will be no accountability,' '' says another Western diplomat who is closely following the trials. "We're not asking that everyone be held accountable,'' he says. "We're asking that anyone be held accountable."

The dispute could loom large as Indonesia seeks to normalize military relations with Western governments. The Bush administration is currently pushing for renewed contacts with Indonesia's military, which were cut off by Congress after the East Timor rampage.

The administration thinks renewed military ties with Indonesia, the world's largest Muslim country, might make it a more wholehearted supporter of the war on terror. Last week, Peter Brookes, the US deputy assistant secretary of Defense for Asian and Pacific affairs, held high-level meetings with the Indonesian military, the highest-level contact in three years.

But US officials say Congress appears to be digging in over the issue, and is unlikely to allow more ties until satisfied that justice has been done for the crimes in East Timor.

Indonesian prosecutors say there is no pressure being brought to bear by the military over the Thoenes case. Instead, it isn't being prosecuted because "we have a difference of perceptions'' with the foreign investigators, says Barman Zahir, spokesman for the attorney general.

He says Indonesian investigators have found little evidence pointing to the battalion and have doubts about the credibility of the UN and Dutch investigations. Mr. Zahir says his office is leaning toward closing the case without a prosecution, though a final decision has not yet been made.

A report by Dutch police investigator Gerardus Thiry, seen by the Monitor and confirmed by UN investigators, says Thoenes was shot in the back by Battalion 745 Second Lt. Camilo dos Santos as the reporter lay on his side, after he had fallen off a motorbike and been dragged a short distance from the road.

Mr. Thiry cites an eyewitness to the murder, Domingus Amaral, who observed the killing from behind a tree and picked out Lieutenant dos Santos from a line-up of photographs of Indonesian soldiers. Dos Santos told The Associated Press in early April that he had nothing to do with the Thoenes killing.

Thiry's report describes a premeditated plan by the battalion, formed by dos Santos and his commanding officer, Maj. Yacob Sarosa, to kill civilians and destroy livestock and homes.

Later, the report describes the involvement of Brig. Gen. Noer Muis, who was the senior commander for the military in East Timor, in a cover-up. According to a former member of the battalion, General Muis briefed soldiers at the end of Sept. 21 to "keep silent about today for the rest of your lives."

Indonesia has been given Thiry's report, as well as funding from the Dutch government to duplicate his work, and an Indonesian team traveled to East Timor in March to interview witnesses.

But Zahir says Indonesian investigators found a number of reasons to doubt Mr. Amaral's credibility. Among them: his reluctance to disclose his precise home address, and his desire to be interviewed in his native language, Tetum, rather than in Indonesian.

Zahir also says that Amaral was too far away to see clearly what he claims to have seen, and that Thoenes may have died from a knife wound, rather than a gun shot. Australian coroner Gregory Cavanagh, who conducted the autopsy on Thoenes, says he died from a high-velocity bullet.

"I would say that [Amaral] is a very credible witness,'' says Jim Bell, the lead investigator on the case for the UN's mission in East Timor. Bell says the details of Thoenes' death – the type of gun, and the angle of the bullet – were carefully kept from the public, yet Amaral was able to reconstruct Thoenes' final moments perfectly.

"There was no way he could have known this if he hadn't witnessed the killing," Mr. Bell says.

DILI, EAST TIMOR - Second Lt. Camilo dos Santos, a handsome officer who wore his beret at a rakish tilt, was the Battalion 745 commander's right-hand man.

That Indonesian battalion went on a three-day killing spree after East Timor overwhelmingly chose independence in its 1999 referendum. The unit drove to the border of Indonesian West Timor in late September, allegedly killing 12 people along the way, including Sander Thoenes, a Financial Times reporter and a regular Monitor contributor.

Lieutenant dos Santos was the name Jim Bell heard almost from the moment he arrived in East Timor. An Australian cop, Mr. Bell came in October 1999 to conduct a United Nations investigation of the murder of Mr. Thoenes.

Former members of the battalion told Bell about the lieutenant's ruthless reputation. They said he'd led a loyalty ceremony for members of the battalion that involved drinking local palm wine, mixed with the blood of a dog and a few drops of the blood of Commander Major Yacob Sarosa and dos Santos. Second Sgt. Hermenegildo dos Santos (no relation to Camilo dos Santos) told Bell, and the Monitor in 1999, that the lieutenant had briefed the unit before they left on Sept. 20, 1999. "If you find anything," he told them, "just shoot it."

As the convoy of roughly 100 soldiers rolled south on Sept. 21, dos Santos led by example. He rode up front with the two-man motorcycle teams that shot at almost everything that moved.

At about five that afternoon, Domingos Amaral says he was relaxing by the side of the road in Dili's Becora neighborhood. The seller of grilled meat recalls being glad the worst of the day's heat was over. Then he heard the whine of motors up the road and bursts of automatic gunfire. He dove into the brush and peered out from behind a tree. After a few moments, a group of soldiers from the battalion – he could make out the 745 insignia on their sleeves – came into view about 30 yards away, dragging the limp body of a white man who was later identified as Thoenes.

They laid him on his side, and then one of them "with an emotional, angry look on his face" fired his rifle into the back of Thoenes. Mr. Amaral held his breath. "If they had heard, they would have surely killed me,'' he says.

Another farmer, Alexandre Estevao, told the Monitor in January 2000 that he also saw a body dragged off the road, but he was too far away to identify it or the soldiers.

UN investigators had known that Amaral was a witness for some time, but Indonesia had refused to provide pictures of dos Santos or other members of the battalion, so they hadn't been able to positively identify who Amaral had seen.

But one day late last year, Bell was sitting in his office watching a local news broadcast about refugees returning from the West Timor camps, and a soldier's name-tag caught his eye: C. dos Santos. He quickly had still pictures made from the videotape and presented them, along with pictures of other Indonesian soldiers, to Amaral, who immediately pointed to the lieutenant's photo. "I remember the face very clear,'' says Amaral.

Dos Santos told The Associated Press in early April that he had nothing to do with the Thoenes killing. The Monitor has made several unanswered requests to his commanding officers for interviews over the past two weeks.

Dos Santos now serves in West Timor's Battalion 743, where he's been involved in the process of screening East Timorese refugees who would like to return home. In early April, East Timor's President Xanana Gusmao visited one of the border camps to reassure refugees that it was now safe to return. He met dos Santos and as they spoke, the lieutenant broke down into tears. Mr. Gusmao gave him a hug, urged him to come home, and "face up to whatever he had done."