“Special Panels” in East Timor

In 1999, the United Nations sponsored a referendum on independence in East Timor, which had been occupied by Indonesia since 1975. The referendum, which was overwhelmingly passed, sparked a final campaign of killing and destruction by Indonesian forces and local militias. The UN acted to restore peace and security and in doing so created the United Nations Transitional Administration of East Timor (UNTAET). Part of UNTAET’s mandate is to bring to justice those who committed horrific atrocities both before and after the referendum. In 2000, special mixed international / East Timorese panels were established by UNTAET to try those accused of committing serious violations of international humanitarian and human rights law. However, there still remains great concern over this process of international justice, especially the reliability of domestic trials simultaneously taking place in Indonesia. Some have renewed calls for an ad hoc international criminal tribunal.

The need for justice

Almost 200,000 East Timorese were killed during the 24 year Indonesian occupation. In the final wave of violence that followed the referendum, many more were killed, hundreds of thousands displaced and the infrastructure all but destroyed.

The role of the UN

In the aftermath of the Indonesian “withdrawal”, the UN sent an international commission to investigate the causes of the violence and to recommend measures necessary to bring the perpetrators to justice. The commission was lead by a distinguished Costa Rican jurist, and concluded, in general terms, that the Indonesian Army was responsible for committing, planning or directing the atrocities, either directly or through organized Timorese militia groups. The commission recommended that the UN establish an independent international criminal tribunal to bring those responsible to justice. However this proposal was put on hold in deference to Indonesia’s request to try its own nationals accused of committing these grave crimes (Indonesia’s own national human rights commission having also undertaken an inquiry into the allegations). The UN expressed its hope that Indonesian justice mechanisms would be “swift, comprehensive, effective and transparent”.

Instead of establishing an international tribunal, the UN decided to incorporate criminal trials into its overall effort to restore peace and security. Using the powers conferred on it under Chapter VII of the United Nations Charter, the Security Council passed Resolution 1272 establishing UNTAET as the effective interim government of East Timor. Elections for the Constituent Assembly and Presidency have now taken place, and East Timor assumed complete independence on May 20, 2002. On September 27, 2002, East Timor was admitted to the UN.

National and international justice mechanisms

UNTAET was given the authority to carry out all the governmental functions including the administration of justice. Two kinds of courts are currently in operation in East
Timor: 1) District Courts with jurisdiction over both criminal and non-criminal matters constituting “ordinary crimes”, and 2) Special Panels within the Dili District Court that have jurisdiction over genocide, crimes against humanity, murder, sexual offences and torture, known collectively as “serious criminal offences”. The Special Panels have exclusive jurisdiction over rape and murder committed between January 1, 2025 and October 25, 2000. Outside this period, the other District Courts may assert jurisdiction over rape and murder. According to UNTAET regulations, genocide, crimes against humanity and war crimes are subject to universal jurisdiction and therefore can be prosecuted regardless of the time or place of commission. So far, however, the Special Panels have only heard cases of crimes committed between the specified dates relating to the violence surrounding the referendum.

Two Special Panels have been established, each comprising two international judges and one East Timorese judge. One panel conducts its proceedings in English, the other in Portuguese. There is a similarly composed Appeals Chamber, which can be expanded to empanel three international and two East Timorese judges in cases of special importance. By February 2002, 83 people had been indicted for such crimes, 21 of which were convicted with sentences ranging between four and 34 years. Two other UNTAET institutions support this international judicial effort: 1) the Serious Crimes Unit, which is responsible for investigation and prosecution, and 2) the Legal Aid Service, which assigns defence counsel to those accused of committing serious crimes.

Problems and failures

There has been a great deal of criticism leveled at the judicial process established by UNTAET. Many of the scheduled hearings of the Special Panels have been repeatedly postponed, mostly because judges have been unavailable. According to some reports, the Appeals Chamber has not functioned for over a year, again because judges had not been appointed to hear awaiting appeals. Both the East Timorese Ministry of Justice and UNTAET have been heavily criticized for such drastic mismanagement.

However, the parallel trials by the ad hoc tribunal in Jakarta has received much heavier criticism. First, jurisdiction has been limited to prevent cases from being presented in a manner that properly reveals the action taken by the Indonesian Army. Consequently, the prosecution merely reflects a view that Indonesian responsibility only extends as far as a failure to intervene to prevent the atrocities rather than exploring evidence and allegations that suggest a systematic campaign of violence and destruction. Secondly, it has been suggested that the prosecution is failing to indict those most responsible for the human rights violations and is instead bringing cases against local government and police officials rather than military officers. Thirdly, regardless of who is prosecuted, the tribunal has been accused of high rates of acquittal and passing unreasonably light sentences.

In light of these failing, many groups are still calling for the creation of a UN sponsored independent international criminal tribunal. Such a body, it is argued, would have the best chance of obtaining the strongest evidence against the Indonesian military chain of command that allegedly affected the policies of violence.

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