Confronting crimes of the past timor leste after 1999 to punish or forgive

51 1.The rise of the truth and reconciliation commission...51 2.Trends of reconciliatory justice in times of peace ...54 V.TIMOR LESTE’S POST CONFLICT JUSTICE SYSTEM.... Today, Timor Les

SUMMARY 3

I.INTRODUCTION 4

II.TIMOR LESTE: A NATION’S QUIET UNRELENTING STRUGGLE FOR INDEPENDENCE 8

A.P RE - COLONIZATION AND THE ARRIVAL OF THE P ORTUGUESE 9

B.T HE UNFULFILLED PROMISE OF INDEPENDENCE : I NDONESIA ’ S INVASION OF E AST T IMOR 10

C.T EARS AND T RIUMPH : T IMOR ’ S JOURNEY TOWARDS INDEPENDENCE 13

D.T HE UN’ S ADMINISTRATION OF E AST T IMOR 15

III.MODELS OF POST-CONFLICT JUSTICE 16

A.C RIMINAL J USTICE 20

1.The retributive purposes of criminal justice 21

2.The utilitarian purposes of criminal justice 22

3.International criminal justice and its objectives 24

B.R ECONCILIATORY J USTICE 25

1.Reconciliation: an unsettled notion 25

2.Reconciliation: aiming to heal all those directly affected 27

3.Reconciliatory justice as applied and defined in State practice 28

C.C OMPARING CRIMINAL AND RECONCILIATORY JUSTICE 30

1.Never shall the twain meet 30

2.As trade offs: Reconciliatory and criminal justice as mutually exclusive 34

3.As supporting and separate: reconciliatory and criminal justice working hand-in-hand 37

IV.WHAT DOES INTERNATIONAL LAW SAY? SEARCHING FOR AN INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONLA CRIMINALS 39

A.D ISTILLING POSITIVE STATEMENTS OF AN INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES 40 1.Clarifying the debate: Primary and secondary Norms at international law 40

2.Considering the hierarchy of international legal obligations in searching for a mandatory obligation 41

3.Drawing the link between Jus Cogens norms and Erga Omnes obligations 44

B.T HE SEARCH FOR AN E RGA O MNES OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES .45

1.Examining Treaty law 45

2.Examining State Practice 46

3.Examining soft law sources 49

C.C ONSIDERING THE EMERGING TREND IN R ECONCILIATORY J USTICE 51

1.The rise of the truth and reconciliation commission 51

2.Trends of reconciliatory justice in times of peace 54

V.TIMOR LESTE’S POST CONFLICT JUSTICE SYSTEM 60

A.T HE S ERIOUS C RIMES P ANELS 60

B.T HE C OMMISSION FOR R ECEPTION T RUTH AND R ECONCILIATION .64

C.E XAMINING THE I NTERACTION BETWEEN THE S ERIOUS C RIMES P ANELS AND THE R ECONCILIATION C OMMISSION 71

VI.ASSESSING POST-CONFLICT JUSTICE OBJECTIVES 74

A.A SSESSING THE GOALS OF C RIMINAL J USTICE AS PERCEIVED THROUGH T IMORESE EYES 74

1.Timor’s post-conflict justice: Addressing high-level responsibility 76

2.The Serious Crimes Panels attempts at addressing the militia phenomenon 88

B.T IMOR L ESTE ’ S R ECONCILIATION C OMMISSION : ACHIEVING THE GOALS OF R ECONCILIATORY J USTICE 94

1.The Reconciliation Commission’s reconciliation of wrongdoers and victims 95

2.The Reconciliation Commission’s reintegration of wrongdoers into communities 100

VII.THE TIMORESE RESPONSE TO A DUAL-TRACK POST-CONFLICT JUSTICE SYSTEM 105

A.U NDERSTANDING THE T IMORESE PERCEPTION OF J USTICE 105

1.Timor’s historical and political legacy 106

2.Examining the dual-track culture of justice in Timorese society 108

3.Lessons from Timor: rethinking the boundaries of criminal punishment 110

VIII.OWNERSHIP OF POST-CONFLICT JUSTICE: WHO DECIDES? 113

A.A DDRESSING POPULAR MISCONCEPTIONS OF NON -W ESTERN DISPUTE RESOLUTION MECHANISMS 114

1.Perceived informality in non-Western dispute resolution systems: the imposition of Western notions of formality 115

2.Non-Western dispute resolution mechanisms’ inadequate protections: Do international human rights standards provide the only effective framework of protection? 117

B.A NSWERING THE QUESTION OF POST - CONFLICT JUSTICE OWNERSHIP .122

1.Balancing international and domestic needs : the UN as mediator 124

2.Post-conflict justice in Timor: examining the decision-making process 131

IX.CONCLUSION 137

X.BIBLIOGRAPHY 140

APPENDIX I 148

APPENDIX 2 153

APPENDIX 3 158

APPENDIX 4 165

APPENDIX 5 177

APPENDIX 6 182

APPENDIX 7 189

APPENDIX 8 195

APPENDIX 9 198

APPENDIX 10 201

2

FORGIVENESS AND PUNISHMENT IN POST-CONFLICT TIMOR

S UMMARY

This thesis explores the post-conflict justice system of Timor Leste, formerlyknown as East Timor In 1999, after 25 years of Indonesian occupation, Timorese finallyexercised their right to self-determination in an UN-administered referendum Uponannouncement of the referendum’s results, the tiny island erupted in orchestratedmassacres, forced deportations and “scorched earth operations” aimed at punishing theTimorese for their vote Today, Timor Leste’s post-conflict institutions, consisting of theSerious Crimes Panel and the Commission for Reception, Truth and Reconciliation, set

up a unique two-track justice system that simultaneously delivers both criminal justiceand reconciliatory justice for crimes committed during Indonesia’s occupation Informed

by the author’s experiences as a legal intern with the Serious Crimes Panel and interviewsconducted by the author with personnel at the Serious Crimes Panel, the Commission andordinary Timorese, this thesis examines the rationale underlying Timor Leste’s uniquetwo-track justice system, in particular its “serious” and “non-serious” subject matterdivision It examines why criminal justice for “serious” international crimes was insistedupon by the UN despite the preference of local Timorese politicians for all crimes to bedealt with by the Commission, a decision which in effect resulted in Timor Leste’s two-track system In doing so, this thesis examines how this two-track justice system hasfunctioned and whether it has achieved goals envisioned by the UN or Timorese Itaddresses the larger question underlying all these issues, of whether decisions on post-conflict justice should lie with the post-conflict society itself or the internationalcommunity

The year 1999 will forever be indelibly seared in Timorese history It was the year inwhich, after centuries of colonization by the Portuguese and another 25 years ofoccupation by Indonesia, that each and every Timorese were to vote if they wished, fortheir nation’s independence It was the year in which all Timorese lived in constant fear

as Indonesian forces mounted campaigns of intimidation against pro-independencesupporters It was the year that saw East Timor voting for its independence, a vote whichled to the small territory being engulfed by a violence unparalleled in the nation’s alreadysad history as pro-Indonesian militia groups swept through Timorese towns and villagesexacting revenge for the Timorese population’s “betrayal” of Indonesia 1999 witnessedindiscriminate massacres and “scorched earth” operations that resulted in the death ofhundreds of Timorese and the destruction of 75% of Timor’s infrastructure Today, EastTimor has a new constitution, a newly elected government and parliament But, memories

of 1999 and Timor’s violent past still remain-as can be seen in the occasional charredbuilding, newly erected memorials and ongoing post-conflict justice processes set up toaddress crimes committed in 1999

Unlike other countries emerging from civil conflict, Timor Leste, as East Timor came

to be called, made post-conflict justice one of its priorities The United Nations, whichhad organized the 1999 referendum in Timor, set up the United Nations TransitionalAdministration in East Timor (UNTAET) which was charged to exercise executive andlegislative powers over Timor Leste while preparing the territory towards full

independence.1 On 6 June, 2000, UNTAET established the Serious Crimes Panels

(hereinafter known as the Serious Crimes Panels) and the Department of Prosecution of Serious Crimes, (hereinafter known as the Serious Crimes Unit criminally prosecute

“serious crimes” particularly those committed in 1999.2 Not long after, UNTAETresponded to Timorese leaders’ calls for reconciliatory justice by designing incollaboration with wide segments of Timorese community the Commission for

Reception, Truth and Reconciliation (hereinafter known as the Reconciliation

not falling within the exclusive jurisdiction of the Serious Crimes Panels 4

This thesis outlines the historical events and circumstances that led to theestablishment of Timor Leste’s Serious Crimes Panels and Her ReconciliationCommission It analyzes how these two institutions have de facto established a two-trackpost-conflict justice system in which international crimes are subject to a formal criminaljustice system heard before the Serious Crimes Panels while non-international crimesundergo reconciliation before the Reconciliation Commission In particular this thesis

1 S.C Res 1272, U.N.SCOR, 4057th meeting, U.N Doc S/RES/1272 (1999)

2 UNTAET Regulation 2000-11 (On the Organization of Courts in East Timor) set up the Timorese judicial system and states the Dili District Court’s exclusive jurisdiction over “serious crimes”, Reg No 2000-11, UNTAET, 6 March 2000, UNTAET/REG/2000/11, s10; UNTAET Regulation 2000-15 (On the Establishment of Panels with Exclusive Jurisdiction over Serious Crimes) focuses on detailing the subject matter jurisdiction of the Dili District Court, Reg No 2000-15, UNTAET, 6 June 2000, UNTAET/REG/2000/15; UNTAET Regulation 2000-16 (On the Organization of the Public Prosecutor Service in East Timor) establishes the Public Prosecutor’s Office within which the Deputy General Prosecutor for Serious Crimes is charged with setting up a Prosecution Unit responsible for the prosecution

of Serious Crimes as defined in Reg No 2000-11 and Reg No 2000-15, Reg No 2000-16, UNTAET, 6 June 2000, UNTAET/REG/2000/16, s.14

3 Reg No 2001-10, UNTAET, 13 July 2001, UNTAET/REG/2001/10, more popularly known as by its Portuguese acronym the CAVR which stands for “Comissao de Acolhimento, Verdade e Reconciliaocao de Timor-Leste

4 Note that Reg No 2001-10 states that “In no circumstances shall a serious criminal offence” be dealt with

by the CAVR, Reg No 2001-15 supra n2 at s This was amended by Reg No 2002-9 to state that “in

principle, serious criminal offences” shall not be addressed by the CAVR , Reg No 2002-9, UNTAET, 18 May 2002, UNTAET/DIR/2002/09

examines why the UN insisted that international crimes be criminally prosecuted despiteTimorese indigenous traditions of reconciliatory justice and the expressed preference ofHer local politicians for reconciliation rather than criminal prosecution In doing so, thisthesis will first and foremost consider if Timor Leste is obligated under international law

to criminally prosecute crimes committed during conflict, including those categorized asinternational crimes Based on current State and international practice, this thesisconcludes that such an international obligation has yet to clearly crystallize Afterconcluding such, that Timor Leste’s post-conflict justice is rooted not in the observance

of international obligations, this thesis goes on to examine the rationale behind TimorLeste’s preference for criminal justice over reconciliatory justice when dealing with

“serious” international crimes It examines the objectives of criminal and reconciliatoryjustice from Timorese society’s perspective and assesses if the Serious Crimes Panels andthe Reconciliation Commission have fulfilled these said objectives It also attempts todebunk preconceived notions on non-Western alternative dispute resolution methodswhich have arguably contributed to the preference of Western forms of criminal justiceover indigenous forms of dispute resolution Lastly it addresses the larger underlyingquestion of post-conflict justice ownership and suggests how a possible balance betweeninternational and national interests can be achieved by the UN

The writer of this thesis was in Timor Leste from December 2003 to January 2004,attached to the Serious Crimes Unit and had the opportunity of speaking to various UNprosecutors, Commissioners from the Reconciliation Commission, grass-root communityleaders and local non-governmental organization workers on the operation and practice

of the two-track justice model This thesis will attempt to reflect views and concerns ofthe Timorese people relating to the impact of the two-track justice model on their lives.

II.TIMOR LESTE: A NATION’S QUIET UNRELENTING STRUGGLE FOR INDEPENDENCE

The island of Timor lies at the very tip of the Indonesian archipelago, about 600 kmfrom Darwin, Australia Timor Leste or East Timor as it was called when underIndonesian occupation, is made up of the eastern half of Timor island, the Oecussienclave within West Timor and the two islands of Atauro and Jaco.5 Despite Timor’sgeographical proximity with Indonesia, the Timorese differ from Malay Indonesians interms of their ethnic origins, and social and cultural background.6 Timorese societyremained relatively isolated from Javanese culture, the dominant Indonesian culture, uptill Indonesia’s 1975 invasion Unlike the rest of present-day Indonesia which wasbrought under the unifying and dominating influence of Java and Sumatra’s ancientkingdoms such as the Majapahit empire, Timor’s scattered kingdoms flourished anddeveloped independent from external influences aside from occasional tradingagreements by individual Timorese kings with non-Timorese traders

This chapter briefly describes Timor Leste’s political history prior to itsindependence

5 For general overviews on Timor’s history, see JOHN G.T AYLOR , E AST T IMOR : T HE P RICE OF F REEDOM (Zed

Books: London, 1999); East Timor : Historical Background, Focus International, published by UK Foreign

and Commonwealth Office, London, October, 1999; O UT OF THE A SHES : D ESTRUCTION AND R ECONSTRUCTION OF

E AST T IMOR (James J.Fox & Dionisio Babo Soares eds., Crawford House Publishing: Adelaide, 2000)

6 When around 2500 BC the Proto-Malays, descendents of todays Indonesians pushed into western Indonesia settling down in Java, coastal Sumatra and Borneo They did not reach Timor.

A Pre-colonization and the arrival of the Portuguese

In 1515, Portuguese traders arrived on the island of Timor with Dutch trading ships inhot pursuit Both were attracted by Timor’s reserves of sandalwood and spices. 7 Over thenext 300 years, the Dutch and Portuguese squabbled over ownership of Timor island Therespective claims were finally settled in 1913 before the Permanent Court of Arbitrationwhich divided Timor between the two colonial powers Portugal was awarded the easternpart of Timor island or East Timor What is of interest is that despite Portugal andHolland’s claims of ownership over Timor, neither of these colonial powers assertedeffective control over Timor island Indigenous structures proved extraordinarily resistant

to both colonial powers, due to tightly-knit kinship ties between Timorese families andclans

At the end of the 19th century the Portuguese finally took concrete steps to establisheffective control over East Timor So as to specifically undermine indigenous powerstructures, Portugal put in place administrative units which conflicted with indigenouslines of influence This strategy failed as formal administrators installed by thePortuguese found that they needed the support of local political leaders in order to beeffective and therefore sought approval from local political leaders.8 Formal colonialstructures thus co-existed with indigenous political structures Aside from other attempts

to establish effective control over the local population politically or culturally, East

7 James J Fox, Tracing the Path, Reconstructing the Past, in , OUT OF THE A SHES supra note 5 at 16 Fox

records that both the Dutch and Portuguese had to hold regular armed expeditions into Timor to subdue the Timorese Between 1847 and 1913 the Portuguese mounted no less than 60 armed expeditions into East Timor

8 T AYLOR, supra note 5 at 12, Taylor points out that while colonial authority was sanctioned through

coercion and the use of force, traditional authority continued due to the power of cultural tradition

Timor, as Portugal’s most far-flung colony was largely neglected by her colonial master.

In 1973 about 93% of East Timor’s population remained illiterate.9

B The unfulfilled promise of independence: Indonesia’s invasion of East Timor

In 1974 Portugal’s colonization of East Timor came to an end when regimechange in Portugal resulted in changes in Portugal’s colonization policy Tired ofadministering far-flung colonies such as East Timor, Portugal’s new governmentcommitted itself to Timor’s decolonization In October 1976, Portugal set up atransitional government in East Timor to organize local elections in East Timor Beforethese elections could be carried out, suspicion and disagreement over Timor’s futurepolitical status caused frictions between two of East Timor’s most prominent localpolitical parties, the Front for the Liberation of Timor (Fretilin) and the UnitedDemocratic Timor (UDT) Both factions resorted to arms and civil conflict broke out inEast Timor On 4 December 1974 Indonesia invaded East Timor with the ostensiblereason of preventing the escalation of East Timor’s civil conflict and any possible spillover effects on Indonesian territory 10 Following this invasion, on 31 May 1975,Indonesia organized the signing of an Act of Integration which called for East Timor’sintegration with Indonesia This Act was signed by 28 supposedly elected Timoreserepresentatives In reality only 5 of these 28 members were elected.11

9 For an overview of Portuguese rule see TAYLOR, id at 16-19

10 T AYLOR, id at 20

11 Lord Averbury, A Positive Legal Duty: The Liberation of the People of East Timor, in SELF

-D ETERMINATION : I NTERNATIONAL P ERSPECTIVES , (eds Donald Clark & Roger Williams, 1996), p 217

0

Overpowered by Indonesia’s superior military strength, East Timorese activelyresisting and opposing Indonesia’s invasion were forced underground Most were fromthe local political party Fretilin who organized themselves into Falintil, an armedresistance wing of Fretilin Over the following years, the Indonesian army sought to rootout and suppress local East Timorese dissent From time to time, the Indonesian militarywould conduct campaigns of “encirclement and annihilation”, aimed at the “surrounding

of the population in an area, followed by their transportation to newly-created strategiccamps and the killing of Fretilin members and sympathizers”.12 During armed expeditionsinto Timor’s forested interior, the Indonesian army would forcibly recruit ordinaryvillagers for what came to be known as “fence of legs” operations in which hundreds oflocal villagers would be lined up as “fence of legs” or human targets in front of theIndonesian military during their incursions into Fretilin territory The largest recordednumber of civilians involved in a single such “fence of legs” operation was about 80 000male villagers.13 The Indonesian military also uprooted and resettled the local population

in “resettlement villages” which were put under armed guard so as to prevent the villagersfrom aiding rebel fighters.14 All in all, a comparison of Portuguese census figures andIndonesian census figures demonstrate that Indonesian occupation of East Timor resulted

in 100 000 deaths, the deaths of one third of Timor’s local population.15

Apart from actively suppressing local resistance, the Indonesian authorities alsoattempted to replace Timorese culture with dominant Indonesian Javanese culture which

12 T AYLOR, supra note 5 at p 85

13 Id at 117

14 Id at 123

15 East Timor : Historical Background, Focus International, published by UK Foreign and Commonwealth Office, London, October, 1999, supra note 5 at p4

sought to erase the Timorese population’s self-consciousness as a nation The authoritiesimplemented socialization programs in Timorese schools and set in place transmigrationprograms involving the migration of Indonesians from other parts of Indonesia intoTimor.16

All throughout Indonesia’s colonization, the Indonesian authorities facedcontinued resistance from Fretilin and its armed wing Falintil Much of Fretilin’s effortswere aimed at mobilizing the masses and cultivating the continued support of localtraditional leaders.17 Campaigns were also launched abroad in an attempt to alert theinternational community to East Timor’s plight The international community howeverremained largely paralyzed by inaction Apart from various UN Security CouncilResolutions 18 and UN General Assembly Resolutions19 calling for Indonesia’swithdrawal from East Timor, most influential States were reluctant to offend Indonesiawhich was perceived by these States as an important strategic partner in the South-eastAsian region.20 Political records which have surfaced in recent years reveal the complicity

or at least acquiescence of States such as America and Australia in Indonesia’s plan ofannexing East Timor 21

16 T AYLOR, supra note 5 at 124-128

17 Fernando de Araujo, The CNRT Campaign for Independence in OUT OF THE A SHES supra note 5 at 108-110

this same approach was adopted by CNRT during the campaign for independence post-referendum announcement The youth were tasked to go from door-to-door explaining independence to the villagers.

18 S.C Res 384, 30 U.N SCOR, U.N Doc S/Res/384 (1975)

19 G.A Res 3485, 30 U.N GAOR, U.N Doc A/Res/3485 (1975) (72 in favour, 10 against, 43 abstentions); G.A Res 31/53, 31 U.N GAOR, U.N Doc A/31/362 (1976) (68 in favour, 20 against, with

49 abstentions); G.A Res 32/24 32 U.N GAOR, U.N Doc A/32/357 (1977)(67 in favour to 26 against, with 47 abstentions); G.A Res 37/30, 37 U.N GAOR, U.N Doc A/37/51 (1982) (50 in favour of, 46

against, with 50 abstentions); see also G.A Res 33/39; 33 U.N GAOR, U.N Doc A/33/455 (1978); G.A.

Res 34/40, 34 U.N GAOR, U.N Doc A/34/46 (1979); G.A Res 35/27, 35 U.N GAOR, U.N Doc A/35/48 (1980); G.A Res 36/50, 36 U.N GAOR, U.N Doc A/36/51 (1981)

20 Jani Purnawanty, Various Perspectives in Understanding the East Timor Crisis, 14 Temp Int'l & Comp.

L.J 61, 63 (2000) at 65

21 Jessica Howard, Invoking State Responsibility for Aiding the Commission of International Australia, the United States and the Question of East Timor, Melbourne Journal of International Law (Vol

Crimes-2

C Tears and Triumph: Timor’s journey towards independence

In 1998, the East Timorese cause was once again taken up by the internationalcommunity as popular revolution led to change in political leadership in Indonesia.22 On

27 January 1999 Indonesian President Habibie responded to international pressure andannounced that Indonesia would hold a referendum in East Timor giving every Timoresethe opportunity to vote for autonomy or outright independence.23 Habibie’s decision wentagainst the interest of many Indonesian military leaders who had important economic andpolitical stakes in East Timor These military leaders reacted to Habibie’s announcement

by organizing Operasi Sapu Jagad The aim of this operation was to portray East Timor

as racked by civil conflict and unprepared for any form of self-government.24 Paramilitarygroups which were supported, trained and financed by the Indonesian army were chargedwith intimidating and terrorizing the local Timorese population 25

While such orchestrated campaigns of intimidation being were carried out,Indonesia’s political leaders were engaged in negotiations with the UN and Portugal.Portugal, the former colonizing power of Timor, represented Timorese interests at these

2) at 2

22 Fernando de Araujo, The CNRT Campaign for Independence in OUT OF THE A SHES supra note 5 at 106

23Id , Araojo notes that Habibie was in part willing to hold the referendum as he had “received false reports

from the military claiming that they were in complete control and that they had already done everything they could to convince the people that the best choice for the future of East Timor was the autonomy option”.

24 Countering the argument that East Timor has had an endemic culture of violence, in his statement to the observes “it is a classic example of how low intensity warfare and counter-insurgency techniques the Kopassus…had been trained to operate in communities to create a climate of terror, hysteria and violence… The violence is meant to create a situation ultimately where it is necessary then to step in to restore order…

So I would argue as to whether in fact you are talking about culture and human behaviour, that we are talking about a culture where there was, prior to the presence of these militias, a culture of violence I do not thinkt hat necessarily has been the case-I thinkit has been fostered I think it has been nurtured”

25 T AYLOR supra note 5 at xix-xii

negotiations due to Indonesia’s reluctance to officially recognize and negotiate withTimorese resistance leaders On May 5, 1999 Indonesia and Portugal, the latterrepresenting Timorese interests, finally agreed on the modalities of the referendum to beheld in East Timor According to the security agreements, which came to be known as theMay 5 Agreements, the United Nations Assistance Mission in East Timor (UNAMET)would be responsible for the organization and administration of the referendum whileIndonesian police forces would be charged with maintaining security during thereferendum.26 On 4 June 1999 UNAMET commenced operations in East Timor.However, due to paramilitary activities and violence UNAMET was forced to twicepostpone the referendum On 30 August 1999, the referendum was eventually conducted.Despite paramilitary activity and intimidation, more than 90% of Timorese turned up tocast their votes 78% chose independence Upon UNAMET’s announcement of thereferendum’s results, East Timor erupted into violence as the Indonesian military, policeand army-backed militia carried out massacres of civilians and “scorched earthoperations” Within two weeks, the violence had caused some 330 000 Timorese to seekrefuge in the jungles of Timor’s mountains while another 150 000 were forcibly deported

by the Indonesian military into concentration camps set up in West Timor.27 On 10September 1999 UNAMET itself was forced to leave as its staff and compounds cameunder attack by paramilitary groups.28

26 Question of East Timor: Report of the Secretary General, U.N GAOR, 53rd Sess., U.N Doc A/53/591

(1999), Annex I, 1 [hereinafter known as the May 5 Agreements]

27 T AYLOR, supra note 5 at xii; In August 1999 a document was found in the Dili police department

regarding “Operasi Remember Lorosae II” a plan for mass evacuation of Timorese to West Timor in the event independence was voted for, also found was an order dated 5 May 1999 cabled from General Subagyo Hadi Siswoyo, TNI Chief of Staff to Colonel Tono Suratman, commanding officer in Dili ordering him to “prepare a security plan to prevent civil war that includes preventative action policing measures, repressive/ coercive measures and a plan to move to the rear/ evacuate if the second option (of independence) is chosen”, both of which are referred to in Australian Parliamentary Report, Chapter 4 5.50

28 Id at xxvi-xxvii

4

D The UN’s administration of East Timor

As the violence in East Timor escalated, the UN Security Council sent a delegation toJakarta on 7 September 1999 to meet with the Indonesian government.29 On 12September 1999, President Habibie was finally persuaded to agree to a UN peacekeepingforce in East Timor.30 On 21 September 1999 the International Force for East Timor(INTERFET), an Australian-led peacekeeping force of 8000 landed in Dili.31 On 25October 1999, the UN Security Council established the United Nations TransitionalAdministration of East Timor (UNTAET) which would be responsible for the interimgovernance of East Timor and the territory’s transition to full independence.32

UNTAET was also charged with seeking accountability and justice for the

5000-6000 deaths which occurred in 1999.33 To do this, UNTAET would have to choosebetween the various post-conflict justice models already existing in State practice Thenext section will analyze the different models of post-conflict justice currently existing inState practice and their underlying jurisprudential principles

29 Indonesia responded by declaring martial law, transferring control from the police under the May 5

agreement back to the military Id at xxx-xxxi

30 Id at xxx-xxxi

31 S.C Res 1264, U.N SCOR, 54 th Sess., 4045 th mtg., U.N Doc S/RES/1264 (1999) which authorized the creation of a multinational force for East Timor

32 S.C Res 1272, supra note 1; following the granting of East Timor’s independence on May 20, 2002, the

United Nations Mission of Support in East Timor (UNMISET) assumed UNTAET’s mandate for

prosecuting serious crimes and assisting the judicial sector, see S.C Res 410, U.N SCOR,57th Sess.m,

4534 th meg., U.N Doc S/RES/1410 (2002)

33 T AYLOR, supra note 8 at xxiv

III.M ODELS OF POST - CONFLICT JUSTICE

Throughout East Timor’s 1999 conflict, the UN Security Council and GeneralAssembly had consistently maintained that perpetrators of international crimes would be

“brought to justice” Modern history is replete with instances of political upheaval duringwhich atrocities are committed as opposing groups struggle for political power Themagnitude of such atrocities is exacerbated by the general breakdown in law and order.Successor governments emerging from such civil conflicts more often than not avoid orrefuse to address crimes committed during periods of political transition for a myriad ofreasons ranging from the new government’s lack of resources, the country’s continuingpolitical instability or the need to focus on the citizenry’s more pressing survival needs

Nevertheless successor States or governments increasingly find themselves facingdemands by international actors whether States, organizations or civil society, to addresscrimes committed during times of transition These demands are part of a largerphenomenon that is changing the international legal landscape International law isentering an age of accountability whereby a variety of subjects find themselves being heldresponsible for their acts.34 The workload of the International Court of Justice

(hereinafter known as the ICJ) has more than doubled over recent years as States bring

claims against other States for international wrongs.35 Various international and regional

34 James R.Crawford, Responsibility to the International Community as a whole, 8 Ind J Global Leg Stud.

303 at 309 who argues that international law is experiencing a shift from “sovereignty to obligation” and

“impunity to accountability”

35 See generally, PHILLIPE S ANDS & P IERRE K LEIN , B OWETT ’ S L AW OF I NTERNATIONAL O RGANIZATIONS (Sweet & Maxwell: London, 2001, 5th Eds.) 351-368

6

institutions hold States accountable to groups and individuals The ICJ and InternationalLabour Organisation have consistently advocated that international organizations should

be considered as duty-bearing responsibility entities.36 International criminal tribunals,

“hybrid” tribunals of national and international character and national courts holdindividuals accountable for certain acts considered as international crimes 37

Despite the international community’s condemnation of crimes committed duringconflict and threats to hold perpetrators of these crimes accountable, the number of livesclaimed by civil conflicts continues to escalate Post-conflict justice seeks to account forthese crimes Post-conflict justice or transitional justice, as observed by Treital, hasundergone three stages of development over the years.38 Although Treital’s analysisincludes crimes committed by prior regimes and not only crimes committed duringconflict, both crimes share many important characteristics with the former One is theimpossibility of resorting to law during the crimes’ commission thus giving rise to theneed to address these crimes only after the regime change

Treital begins her historical survey of post-conflict or transitional justice mechanismswith the Nuremburg and Tokyo trials of Second World War (WWII) (Phase I) Thesetrials established criminal justice as the paradigm model of justice to be adopted whendealing with certain kinds of crimes which are known today as international crimes Thisparadigm was reflected in post-war multilateral human rights treaties such as the

Genocide Convention and Torture Convention which imposed on State parties theobligation to criminally try perpetrators of acts prohibited by the said Conventions.39

According to Treital, transitional justice entered a second phase of development(Phase II) in the 1980s During this period, States in Latin America and the Soviet Unionmarked their transition from non-democratic to democratic political rule by asserting theright to determine the appropriate model of justice to be applied even when addressingcrimes that fall into the category of international crimes such as gross violations of humanrights Accountability mechanisms undertaken by these States range from the holding ofcriminal trials, the granting of amnesty, the enactment of lustration laws and theestablishment of truth and reconciliation commissions.40 The truth and reconciliationcommission’s popularity during this Phase resulted in it being feted as a legitimatealternative to Phase I’s criminal justice model

Treital argues that we have now entered a third developmental phase (Phase III) ofpost-conflict or transitional justice Phase III has seen a reversion back to criminal justice

as the paradigmic justice model especially when addressing crimes recognized asinternational crimes Treital describes Phase III as differing from Phase I due to its more

“universalized” and “normalized” nature Rather than addressing international crimes bycriminal justice on an ad hoc basis, international tribunals such as the permanent

39 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremburg Tribunal,

G.A Res 95(1), U.N GAOR, U.N Doc A/64/Add.1 (1946); Convention on the Prevention and Punishment of the Crime of Genocide, Dec 9, 1948, 78 U.N.T.S 277; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec 10, 1984, 39 U.N GAOR, Supp No.

51 at 197, U.N Doc A/39/51

40 For an overview of the various kinds of transitional justice mechanisms mentioned, see TREITAL ,

T RANSITIONAL J USTICE (2000)

8

International Criminal Court (hereinafter known as the ICC) is argued to have established

an expectation that international crimes will and should be criminally prosecuted 41

While Treital’s Phase III description does accurately describe the internationalcommunity’s general attitude towards international crimes, it fails to take into account thecontinuing relevance of reconciliatory justice Some States continue to argue that truthand reconciliation commissions, especially after the success of the South African Truthand Reconciliation Commission, are real and acceptable alternatives to criminal trials Onthe other hand recent UN peace-building operations in Kosovo, Sierra Leone and EastTimor draw a distinction between international crimes, which are addressed by criminaljustice, and non-international crimes, which are left to the discretion of localaccountability exercises

This section will focus on outlining the jurisprudential differences between criminaland reconciliatory justice Despite their differences, post-conflict criminal andreconciliatory justice processes both ultimately aim at securing lasting peace andindividual accountability The main difference between these two models lies in how theyperceive such peace and individual accountability will be best achieved

Proponents of criminal justice use both retributive and utilitarian arguments toexplain how criminal justice effectively establishes individual accountability and ensures

41 T REITAL, supra note 40 at 89

peace in the aftermath of civil conflict Retributive justice theorists focus on how criminaljustice addresses the wrongdoer’s moral responsibility Lost-lasting peace, according toretributivists, can only be achieved by treating each wrongdoer as a responsible agent.Utilitarian justice theorists focus also on the wrongdoer, but ultimately do so to achievesocial benefits, one of which may be long-lasting peace.42 On the other hand, proponents

of reconciliatory justice argue that lasting peace and individual accountability can only beachieved by healing immediate relationships affected by the wrong and not by focusing

on the wrongdoer alone 43

Due to their different underlying premises, different methods and procedures areemployed by criminal justice and reconciliatory justice Criminal justice traditionallyemploys incarceration or the infliction of physical unpleasantness on the wrongdoer as ameans towards securing individual accountability Reconciliatory justice takes a differentapproach towards establishing individual accountability The wrongdoer is made to takeresponsibility for his actions by undertaking compensation or reparation towards hisimmediate victim or community directly affected by his wrongdoing

A Criminal Justice

42 N IGEL W ALKER , W HY P UNISH (Oxford University Press: 1991) at 7

43 Some proponents have argued that in healing such relationships, reconciliatory justice does address retributive and utilitarian ways in a more effective and lasting manner The author however maintains that the reconciliatory justice movement in reality promotes a different attitude towards crime rather than a different method to achieve similar goals Its essence lies in its focus those directly injured or affected by the crime and healing those relationships in contract to criminal justice’ conception of crime as a wrong against the State

0

The principles of criminal justice, which remains the paradigm post-conflict justicemodel for international crimes at least within UN circles, will now be considered moreclosely

1

The retributive purposes of criminal justice

As mentioned above, proponents of criminal justice largely employ eitherretributive or utilitarian arguments Rtributive theorists see criminal justice andpunishment as morally obligatory According to Kant in his classic desert islandhypothetical, a community abandoning a desert island would be morally obliged toexecute the last murderer in prison before they leave the island The community isrequired to do this so as to morally disassociate themselves from the crime that theprisoner has committed 44 Kant’s theory however fails to explain why the moral response

to crime is punishment and not some other process such as reconciliation Theorists such

as Klenig address this by arguing that the notion of criminal punishment as a response towrongdoings is embedded in our society’s cultural language In other words there is no

“ethical neutrality” to punishment because punishment is understood by society to be aresponse to certain acts which have been deemed repugnant within society’s moraldiscourse.45 Instead of focusing on the underlying act’s morality, Mabott argues that thevery fact that a law has been broken implies moral culpability and punishment on the

44 I MMANUAL K ANT , T HE M ETAPHYSICS OF M ORALS (New York: Cambridge University Press, 1996)

45 J OHN K LEINIG , P UNISHMENT AND D ESERT (Martinus Nijhoff/The Hague/1973) at 43 Arguably Kelnig goes around the problem of justification by defining punishment as a moral issue and therefore not having to justify it.

accused.46 Apart from explaining the moral link between crime and criminal justice,Nozick argues that punishment serves to “reconnect” the offender to society’s moralvalues.47

In all the retributive arguments outlined above, it remains to be discovered whatthe term “morality” really means Morality and conscience are non-empirical concepts.Oftentimes jurists, such as Kant in his desert island hypothetical example, seem to haveresorted to metaphysical arguments without really explaining the meaning of morality orhow to find it The main thread running through these arguments is that criminalpunishment and accountability is not only permissible but morally obligatory due to thewrongdoer’s deviance from society’s prevailing moral norms

2

The utilitarian purposes of criminal justice

Utilitarians do not see criminal justice and criminal punishment as morallyobligatory but as necessary means towards achieving certain desirable social goals In thecase of post-conflict societies, while the ultimate goal of any accountability mechanismwill be to attain long-lasting peace, more immediate utilitarian goals include deterrence,social denunciation or expression

46 J.D Mabbott, Punishment, in PHILOSOPHY OF P UNISHMENT (Robert M.Baird & Stuart E.Rosenbaum eds., Prometheus Books: New York, 1988) at 28, 32 who bases his theory on the prior consent of individuals to a legal system employing punishment “as one of our instruments for the establishment of the conditions of a good life” (p32)

47 It does not aim to correct the offender’s values but “to get someone to understand that they are being

punished because others view what they did as wrong” reproduced in WALKER, supra note 42 at 80

2

Deterrence theorists see criminal justice and criminal punishment of wrongdoers

as necessary to deter individuals from erring again and potential wrongdoers fromattempting similar acts In this way, long-lasting peace would be achieved Anotherutilitarian aim of criminal justice in post-conflict societies is the re-establishment and re-affirmation of society’s accepted norms Criminal justice and punishment of wrongsserves not only as “authoritative disavowal” as put forth by Kant but also instrumentallyserves as society’s vindication of the criminal law.48 Linked to this expressive function ofcriminal justice is its ability to communicate certain values to the offender functionCriminal punishment seeks to change the offender’s future action by effectivelycommunicating to the offender the wrong he has done.49 While deterrence seeks toprevent future offences by sheer fear of criminal punishment, communication seeks tomake the individual understand why he was punished Duff brings this communicationfunction a step further, viewing it as necessary in the “reconnecting” of the offender tosociety’s moral values for his own good.50 Aside from expressing social condemnationand communicating social values to the offender, Hampton also sees criminal punishment

as expressing society’s solidarity with victims of crime 51

It has been argued that criminal justice and criminal punishment are not theexclusive accountability mechanisms capable of achieving these utilitarian aims,especially the expressive and denunciatory aims of criminal punishment However insocieties steeped in the criminal justice tradition, “punishment draws the offender’s

48 J OEL F EINBERG , D OING AND D ESERVING (Princeton University Press: Princeton, 1970)

49 See generally ROBERT N OZICK , P HILOSOPHICAL E XPLANATIONS (Cambridge, MA: Harvard University Press, 1981)

50 R OBIN A NTONY D UFF , T RIALS AND P UNISHMENT (Cambridge, England: Cambridge University Press, 1986) at 266

51 J EFFRIE M URPHY & J EAN H AMPTON , F ORGIVENESS AND M ERCY (Cambridge, England: Cambridge University Press) at 266

attention to society’s disapproval of his act in a way that he cannot ignore”.52 On the otherhand societies which do not have a tradition of criminal punishment may have to employother methods of communication which resonate more closely to local cultural norms

3

International criminal justice and its objectives

Advocates of international criminal justice tend to use more utilitarian argumentsrather than retributive theories This is understandable as ideas of “morality” which formthe essence of retributive theories, can be argued to differ from society to society Mostjustifications for international criminal justice have therefore been framed in universalutilitarian terms

The first international criminal tribunal since Nuremburg, the InternationalCriminal Tribunal for Yugoslavia, was set up specifically to provide “justice for thevictims”, “establish accountability for the individual”; “deter continued perpetration ofatrocities in the Balkans”, “facilitate restoration of peace in the Balkans”, “develop ahistoric record for the conflict” and to “serve as a deterrent to perpetration of atrocitieselsewhere”.53 Similarly in the wake of the Timor’s 1999 conflict, the UN cited a variety ofutilitarian reasons when calling for the criminal prosecution of international criminalssuch as the need to vindicate victims, to uncover the truth, to deter future civil conflictsand to facilitate nation-building as well as reconciliation A joint mission report

52 D ANIEL S HUMAN , J USTICE AND THE P ROSECUTION OF O LD C RIMES : B ALANCING L EGAL , P SYCHOLOGICAL AND M ORAL CONCERNS , (Washington DC: American Psychological Association, 2000) at 27

53 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N.

SCOR, 48 th Sess., U.N Doc S/25704 (1993) at 3

4

undertaken by three UN Special Rapporteurs to East Timor called upon the Indonesiannational authorities “to investigate and prosecute” human rights violations so that “thepast (wont) remain shrouded in mystery”, to ensure justice to victims and prevent

“renewed cycles of violence”.54 The Security Council’s Mission to East Timor andIndonesia stressed that justice should “to the extent possible, reflect East Timoreseexpectations” in the interest of “reconciliation” and building a “national political culturebased on respect for human rights and accountability”.55 The International Commission ofInquiry on East Timor, established by the Secretary General upon a resolution from the

UN Human Rights Committee, recommended the “prosecuting” of perpetrators of humanrights violations separate from “issues of truth and reconciliation”.56

Reconciliation: an unsettled notion

Ever since the establishment of the South African Truth and ReconciliationCommission which played a crucial role in South Africa’s transition from apartheid rule

to democracy, “reconciliation” has become a popular catchphrase among successor

54 Report on joint mission to East Timor by the Special Rapporteur of the Commission of Human Rights on extrajudicial, summary or arbitrary executions, the Special Rapporteur of the Commission on the question

of torture and the Special Rapporteur on violence against women, U.N GAOR, U.N.Doc A/54/60 at Para.

65

55 Report of the Security Council Mission to East Timor and Indonesia (9-17 November 2000), U.N SCOR,

U.N Doc S/2000/1105 (2000) at Para 29

56 Report of the International Commission of Inquiry on East Timor to the Secretary General, U.N GAOR,

U.N Doc A/54/726, S/2000/59 (2000), Recommendation 6, para 152

governments of post-conflict societies.57 Prior to East Timor’s 1999 referendum, the UNSecretary General in his 1999 Report to the Security Council stated that regardless of thereferendum’s outcome “there will be a pressing need for reconciliation between thevarious competing factions within East Timor”.58 During this same time, UNAMET wasalso involved in supporting local reconciliation initiatives organized by Timorese churchleaders between the Indonesian authorities and the Timorese resistance leaders.59

As noted by Hayner, reconciliation can be carried out at the macro national leveland/or at the micro level, which focuses on with individuals or groups directly affected bythe wrongdoing.60 Because this thesis focuses on how reconciliatory justice goes towardsachieving individual accountability it will focus on reconciliation at the micro level

No State or institution purporting to practice reconciliatory justice has clearlydefined what reconciliation means As observed by Daly, one would have expected tofind a comprehensive definition of this term in the South African Truth andReconciliation Commission’s report However, instead of attempting a clearcomprehensive definition of reconciliation, the report focuses on what Daly described as

“a catalogue of heartwarming moments”.61 The flexibility and informality inherent in theconcept of reconciliatory justice renders its precise definition impossible Such flexibility

57 Before that most truth and reconciliation commissions were seen as excuses for impunity The South African Truth and Reconciliation Commission was the first truth and reconciliation commission which sought to establish individual accountability for crimes committed Before that, Latin American truth and reconciliation commissions focused on truth-seeking and proposing recommendations to new successor governments.

58 Question of East Timor, Report of the Secretary General, U.N GAOR, U.N.Doc S/1999/595, 22 May

1999, para 33

59 Id, para 7

60 P RISCILLA H AYNER , U NSPEAKABLE T RUTHS (Taylot & Francis Group: US, 2002) at 155

61 Erin Daly, Transformative Justice: Charting a Path to Reconciliation, 12 Int’l Legal Persp 73

6

in itself is not undesirable Oftentimes, our insistence on precise institutional andprocedural certainty stems from our familiarity with particular features of Western-stylecriminal justice

2

Reconciliation: aiming to heal all those directly affected

The difference in the approaches of criminal and reconciliatory justice restslargely on how crime is perceived within the respective frameworks of justice Criminaljustice sees crime as a wrong against the State.62 The State’s involvement is seen asnecessary for to two reasons First the nature of the offender’s acts is so serious that it isdeemed to affect not only the victims of the crime but also that of wider society.Furthermore due to the crime’s serious nature, the State is seen as a more neutral arbiter

of justice as compared to the directly involved victim On the other hand, reconciliatoryjustice sees crime as a conflict between individuals and their immediate communities.63

Such conflicts can only be properly understood and effectively resolved by seeking theinput of all parties directly affected According to reconciliatory justice theorists, long-lasting commitment to any conflict resolution is possible only when the parties involvedfeel true ownership over the conflict resolution process and result

In reconciliatory justice, the perpetrator is required to admit his wrongdoing andwork with directly affected parties so as to correct any harm resulting from his

62 The idea that any crime committed against the “king’s peace” (the State) arose after the centralizatrion of governments as a means of usurping the jurisdiction of the courts of local rulers and of the Roman Catholic Church Prior to that time legal systems recognized that crime harmed the community peace (the State), they primarily viewed and treated crime as an injury to the victim and the victim’s family, and restitution was the

principal means of repairing that injury and restoring the state/ community peace, see Daniel W.Van Ness,

Restorative Justice and International Human Rights, in R ESTORATIVE J USTICE : I NTERNATIONAL P ERSPECTIVES (Burt Galaway & Joe Hudson, eds., 1996) at 17

63 Van Ness, supra n62 at 23

wrongdoing.64 Such restitution aims to put the victim back in the situation prior to theoffender’s wrongdoing and is seen as an act of accountability on the part of thewrongdoer.65Proponents of reconciliatory justice argue that the dialogue process andreparation directly undertaken by the wrongdoer towards the victim achieves individualaccountability in a more effective way as compared to criminal justice.66

3

Reconciliatory justice as applied and defined in State practice

Generally, reconciliatory justice aims to heal relationships which have beendisturbed due to the wrongdoer’s actions As pointed out by some commentators,reconciliation or the healing of relationships can take place on two levels.67 On one level,such “healing” of relationships can be understood to merely mean the differing partiesagreeing to live together in non-lethal co-existence On another level, however, Statesimplementing and seeking to justify their choice of reconciliatory justice over criminaljustice have stressed the richer moral dimensions of reconciliatory justice which requiresforgiveness and a “change of heart” by all involved By emphasizing the moraldimensions of reconciliatory justice, proponents of reconciliatory justice portray it asmorally superior to the dominant criminal justice model

The benefits of reconciliatory justice have been couched in both religious andsecular terms Reconciliation hearings of the South African Truth and Reconciliation

64 Peggy Hutchinson & Harmon Wray, What is Restorative Justice?, New World Outlook, July/Aug 1999 at 5

Commission and Timor Leste’s Reconciliation Commission stress Christian values such

as repentance, penitence and forgiveness Most of Latin America’s truth andreconciliation commissions have been secular in nature and cite a variety of pragmaticreasons for reconciliation and forgiveness.68 Forgiveness and reconciliation is seen asnecessary to foster national unity and togetherness, to overcome the challenges facing anew nation and to truly leave the past divides behind Jurists have also argued thatforgiving is necessary to prevent past events from clouding the rationality of our presentdecisions or future judgments.69 Aside from such pragmatic reasons, jurists have alsorecognized the non-religious yet moral value of forgiving According to this view, allindividuals owe each other a minimum duty of respect Victims who insist on notforgiving wrongdoers deny them “the opportunity to reassert their dignity” and result inmaintaining “an inherently unequal (moral) relationship” between the victim andwrongdoer.70 Victims should also be encouraged to forgive their wrongdoers for theirown good as forgiveness encourages compassion and moral development 71

The following section analyzies criminal justice and reconciliatory justice inrelation to one another

68 While these moral arguments have been couched in non-religious terms, they are in reality based on a certain conception of the individual’s dignity which can be argued to be inherently religious.

69 S HUMAN, supra note 52 at 41-2

70 Id at 43-5

71 Id

C Comparing criminal and reconciliatory justice

1

Never shall the twain meet

Jurists have pointed out that the boundaries between criminal and reconciliatoryjustice are not as watertight or exclusive as they have once been perceived Aims oncethought as exclusive or capable of being achieved only through criminal justice areargued to be also served by reconciliatory justice, vice versa Such arguments have beenraised particularly by proponents of reconciliatory justice who argue that reconciliatoryjustice should not be seen as merely being an alternative to criminal justice Instead itshould be recognized that apart from pure reconciliatory aims, reconciliatory justice alsofulfills the traditional aims of criminal justice As a relatively newer theory of justice, it isunderstandable why advocates of reconciliatory justice seek to portray it not only as analternative theory of justice but as one which also fulfills the aims of criminal justice

In response to the above-mentioned arguments, this section argues that there areinherent institutional and social limitations that make one model of justice or the othermore suited towards performing certain aims Institutional frameworks which cultivatethe development of one model or the other are particularly resistant towardsaccommodating features of other models Also each society has particular views of howjustice should be meted out, what means should be employed and what aims should beachieved All these impressions have been reinforced by the historically dominant model

of justice and cultural perceptions of justice within a particular society Society thus

0

inscribes certain value judgments onto specific methods employed by reconciliatory andcriminal justice which in turn limits the kinds of objectives these methods can achieve

a) The different institutional backdrops of criminal and reconciliatory justice

When assessing models of justice one has to keep in mind that justice systemsconsist not only of theories and methods but entire institutional and social frameworkswithin which these models operate The socio-political landscape that facilitates andshapes particular forms of justice also serves as a limiting factor

The development of the criminal justice system is tied closely to the rise of theState and centralization of political authority in modern Western history The State’spalpable presence in criminal justice models is demonstrated in Hart’s definition ofcriminal punishment: 72

“Punishment is something

(i) involving the infliction of something which is assumed to be unwelcome tothe recipient

(ii) for an offense against legal rules

(iii) imposed on an actual or supposed offender for his offense

(iv) it must be intentionally administered by human beings other than the offender(v) it must be imposed and administered by an authority constituted by a legalsystem against which the offence is committed”

72 Hart, Prolegomenon to the Principles of Punishment, in PHILOSOPHY OF P UNISHMENT (ed Robert M.Baird & Stuart E.Rosenbaum, 1988) at 17

In the criminal justice model it is the State which has the authority to mete outpunishment or pardon Criminal justice’s institutional framework leaves no room forforgiveness, reparation and reconciliation as understood and perceived in reconciliatoryjustice It can be argued that the criminal justice model recognized a form of

“forgiveness” as demonstrated in the State’s suspension of criminal punishment throughpardons and clemency.73 Reconciliatory justice however sees forgiveness as somethingonly a victim can give and is not a right to be assumed by the executive The State’sdominant role in criminal justice leaves no room for the kind of personal forgiveness andreconciliation as perceived in reconciliatory justice.74

Conversely, it is particularly hard for loosely organized societies such asindigenous communities and nomadic peoples to adopt certain features of criminaljustice Within such communities, individuals are organized into smaller groups alongbloodlines or kinship ties These smaller groups blend into bigger groups whicheventually make up the community itself Loyalties within the group prove crucial for thegroup’s survival The group provides the individual with protection Within a communityconsisting of many such groups, it is necessary to prevent inter-group feuds frombreaking out in order to preserve the community’s own survival Unlike the modern State,such communities do not have the centralized police powers necessary to preserve peace

by force In the criminal justice model, the State’s police power imposes criminal powerupon the finding of a right and wrong by a neutral authority The force behind a criminaljudgment comes from the certainty of its enforcement In contrast, dispute resolution in

73 David Tait, Pardons in perspective: the role of forgiveness in criminal justice, 13 Fed Sent R 134

74 J.B Mabbott, supra note 46 at 38

2

non-State communities centre around seeking compromises between disagreeing groups.The direct participation of groups involved in the said conflict is important to ensure trueownership of the agreement It is such ownership that guarantees the agreement’sperformance

Furthermore, non-State societies usually develop in rural areas where limitedagricultural outputs retard the growth of large populations Due to a lack of resources andthe constant need for manpower, traditional forms of criminal punishment such asimprisonment, is seen as “free lodging and free food” Incarceration is also not possibledue to the community’s lack of any central enforcement power

b) Social and historical landscapes: limits of cultural perception on criminal and reconciliatory justice

Advocates of reconciliatory justice have argued that reparations envisioned byreconciliatory justice processes do fulfil utilitarian and retributive aims of criminaljustice.75 For example, by holding reconciliation hearings in public, society and not onlythose directly involved are able to express their disapproval and denounce the crimecommitted by the wrongdoer.76 According to this view, reconciliatory justice is capable ofand does perform functions traditionally ascribed to the criminal justice, differing only inrelation with the means employed in achieving these aims

75 Dan Markel, The Justice of Amnesty? Towards a Theory of Retributivism in Recovering States, 49 Univ.

It should however be remembered that social and cultural perceptions of justicewill often limit what can be achieved by reparations as conceived by reconciliatory justice

or criminal punishment In other words, because of how society perceives criminal andreconciliatory justice, traditional forms of criminal punishment are more suited towardsachieving retributive and utilitarian objectives in ways that reparation and restitution arenot Human psychology studies conducted in societies with a tradition of criminal justicedemonstrate that the ordinary victim does feel vindicated when the wrongdoer is made toundergo some form of physical suffering or punishment.77 While it can be argued thatsuch “eye for an eye” justice is “primitive” and “crude in the extreme” it cannot be deniedthat such social perceptions are so deeply rooted that nothing less than actual physical ormental unpleasantness will be perceived as retributive by the large majority of people inmodern society.78

2

As trade offs: Reconciliatory and criminal justice as mutually exclusive

Most advocates of reconciliatory justice and criminal justice often see theirpositions as exclusive, in terms of a choice between “truth or justice” Choosing onewould require the abandoning of the other because their ultimate aims are perceived asbeing at odds with one another The retributive and utilitarian aims of criminal justicecannot be squared with the aims professed by reconciliatory justice In response to calls tocriminally try South Africa’s apartheid leaders, Bishop Tutu argued that the moral course

of action was to forsake vengeance by forgoing criminal trials.79 However Tutu’s

77 S HUMAN, supra note 52 at 21

78 Id at 22

79 Del Vecchio, a criminologist argues that “The alleged absolute justice of repaying evil for evil…is really

an empty sophism If we go back to the Christian moralists, we find that an evil is to be put right by doing good” quoted in Barnett, R “Restitution: a new paradigm of criminal justice”, Ethics: An International

4

statement automatically equates retribution with vengeance, which are in reality twodifferent concepts For example, retribution is limited by proportionality while there is nosuch limit on vengeance 80

Many transitional societies embracing reconciliatory justice see criminal justice as

a necessary a trade-off to achieving lasting peace and seek to prevent any possible resort

to criminal justice even upon the completion of reconciliatory justice efforts Among allthe truth commissions established so far, only those of El Salvador and Chad have namedindividual perpetrators in their reports.81 During the negotiation of Guatemala’s TruthCommission, military leaders who feared future criminal prosecution, insisted that names

of perpetrators would be excluded from the report.82 Sierra Leone’s recent peaceagreement which established the Sierra Leone truth commission also included anunconditional general amnesty.83

There have been some truth and reconciliation commissions which saw their work

as laying the foundations for later criminal justice instead of excluding it 84 Commissionreports from the truth commissions of Argentina, Uganda, Chad and Guatemala expresslyrecommended the criminal prosecution of human rights violators.85 Argentina’s truth

Journal of Social, Political and Legal Philosophy 1977, 279 at 283

80 David A Crocker, Democracy and Punishment: Punishment, Reconciliation and Democratic Deliberation, 5 Buff Crim L R 509 at 517-523

81 H AYNER, supra note 60 at 107

82 Id at 45

83 Lome Accords, “Peace Agreement between the Government of Sierra Leone and the Revolutionary

United Front of Sierra Leone,” July 7, 1999 available on official website of Sierra Leone government at

http://www.sierra-leone.org/lomeaccord.html

84 H AYNER, supra note 60 at 39-40, the naming did lead to the removal of the named individuals by the Ad

Hoc Commission, a body established by peace accords tasked with removing human rights violators from the military.

85 Id at 323-324

commission’s work and report, Nunca Mas (Never again,) was followed by the repeal ofself-granted amnesty laws and the turning over of commissions files to the prosecutor.This resulted in the eventual trial of Argentina’s ex-military leaders and the jailing of 5generals.86 Nevertheless, despite such recommendations by truth and reconciliationcommissions, successor governments may still not see criminal justice as a follow-upoption to reconciliatory justice While El Salvador truth commission’s report named over

40 individuals responsible for the atrocities, the successor government foreclosed anypossible criminal prosecution of named individuals by enacting a sweeping amnestylaw.87 Uganda’s truth commission also recommended the criminal prosecution ofperpetrators and forwarded about 200 files to the prosecutor However only 50 wereeventually prosecuted, resulting in only 12 convictions obtained for minor offences such

as attempted kidnapping 88 Haiti’s truth commission also recommended the criminalprosecution of wrongdoers but few prosecutions have been undertaken so far due to fear

of political reprisal.89 Against these examples, Chile’s use of the Chilean truthcommission report stands out in contrast Despite an amnesty passed by its successorgovernment, Chile’s truth commission’s report was eventually used to implement whatbecame known as the Alywin doctrine This doctrine required all cases to be thoroughly

86 Id at 34, the prosecutor used the Commission’s nearly 9000 case files to choose 800 witnesses for trials

which covered some 700 individual cases 5 out of 9 of the tried individuals were convicted of homicide, torture and other acts violence and sentenced from 4 and one half years to prison However the public were angry at the light sentences and further trials were cut short when military pressure on the civilian government caused restrictive laws to be passed The “full-stop” law set a cutoff date for initiating prosecutions for events during the period of military rule The “due obedience” law then prevented the prosecution of those who claimed to be acting under a superior’s orders The convicted few were then pardoned by Menem upon his accession to office in 1989

87 Id at 39, 91; the report while naming individuals did not call for their prosecution, instead arguing that

fair trials were impossible until reform of the judiciary was undertaken In fact during internal discussions the commission members actually considered recommending an amnesty This approach of the commission was bitterly criticized by the human rights community

88 Id at 93

89 Id at 97

6

investigated by Chilean courts before application of Chilean amnesty laws.90 FurthermoreChile’s Supreme Court has recently held that the amnesty laws passed do not apply tocases of continued disappearances, opening the way for Pinochet’s criminal prosecutionbefore Chilean courts 91

In particular Hayner states that truth commissions should not be seen as “second-best,weaker option(s)” when criminal justice is deemed not possible 93 Hayner’s position isnevertheless largely based on the fact that most truth commissions do not establishindividual accountability.94 Are truth commissions such as the South African Truth and

90 In 2004 the Chilean Supreme Court finally held that the amnesty would not apply to cases of

disappearances, opening the way for criminal justice See “Pinochet and the Prospect of Criminal Justice”,

93 H AYNER, id at 88, 102-106, among the supportive roles cited by Hayner for Truth Commissions is

appraising the role of courts in the system of repression, recommending judicial reports, promiting the rule

of law and fulfilling international obligations such as victims rights

94 Id at 88

Reconciliation and Timor Leste’s Reconciliation Commission which do aim atestablishing individual accountability to be considered “weaker” when compared tocriminal justice?

This issue will be critically examined in the next few sections First it will beexamined if, despite the benefits of reconciliatory justice, a binding legal obligation tocriminally prosecute perpetrators of international crimes exists at international law

8

IV.WHAT DOES INTERNATIONAL LAW SAY? SEARCHING FOR AN INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONLA CRIMINALS

Given the structural and philosophical differences between criminal andreconciliatory justice, deciding on a model of justice should not be reduced to a simplechoice between “truth or justice” Deciding on a post-conflict model of justice is renderedeven more difficult when the post-conflict society concerned is faced with a myriad ofmore pressing security, humanitarian and rebuilding concerns Very often judicialsystems in post-conflict societies have to be rebuilt from scratch

Recognizing constraints faced by post-conflict societies, international lawyershave argued that the burden of addressing international crimes should not be the soleresponsibility of the post-conflict State but that of the international community as awhole This role has been assumed in recent years by the UN during peace-buildingoperations in Cambodia, East Timor and Kosovo

The preferred model of justice advocated by the UN in all such peace-buildingoperations has been the criminal justice model whether in the form of an internationaltribunal, “hybrid”, mixed courts or local courts The UN has justified its position by

arguing that the criminal prosecution of international criminals is an international legalobligation

This section critically examines whether such an obligation to criminallyprosecute international crimes exists at international law It also looks at the rise ofreconciliatory justice in State practice

A Distilling positive statements of an international obligation to prosecute international crimes

1

Clarifying the debate: Primary and secondary Norms at international law

International legal rules can be divided into primary and secondary norms Aselaborated by the international law commission, primary norms set out the substance andcontent of the right and obligation while secondary norms kick in only when primarynorms are violated.95 Secondary norms govern the consequences which arise when aprimary norm is violated such as the duty to make reparations or compensation

In relation to international crimes, primary norms spell out the content ofinternational crimes These tell us what acts amount to international crimes There is ageneral consensus among jurists and commentators that war crimes, genocide, torture andcrimes against humanity are international crimes Confusion arises when jurists argue that

95 Commentaries to the draft articles on State Responsibility, International Law Commission, 53rd session, extract from the Report of the International Law Commission on the work of its 53 rd session, Official Records of the General Assembly, 56 th session, Supplement No 10 (A/56/10), chp.IV.E.2 p 61

0