Conviction in East Timor falls short of calls for justice

The first case connected to violence after the 1999 vote shows the challenges for international courts.

Almost trembling as he awaits a decision, Joao Fernandes, barely literate and desperately poor, looked nothing like the cold-blooded killer described in the indictment against him.

Last Thursday, Mr. Fernandes became the first person to be brought to justice for the violent rampage by the Indonesian military and its militia proxies after East Timor's vote for independence in 1999.

His 12-year sentence - as opposed to the 25-year maximum - came in exchange for a guilty plea and a promise to provide evidence against his commanding officers. He admitted to killing one man, whose wife and daughter witnessed the act, and to participating in one of the worst massacres of the post-referendum violence.

But no one in East Timor, thirsty for justice after a 24-year occupation, is satisfied with the result. "We reject this verdict," said Catalina Pereira, the victim's daughter, outside the courthouse. "So many men were slaughtered, and this is it?"

The dissatisfaction of Ms. Pereira and thousands of other East Timorese illustrates how the effort to build a credible international justice system is faltering across the globe. A combination of weak political will, high costs, and poor coordination are hampering justice efforts from East Timor to the former Yugoslavia.

UN member states have historically been reluctant to build human rights components into the first stages of peacekeeping missions. When an Australian-led force arrived in East Timor in September 1999, it did not bring forensic investigators or orders to seek out and arrest perpetrators of the crimes that had been committed during the month.

The arriving peacekeepers' first priority was to avoid casualties. In some cases they even escorted Indonesian soldiers and militia leaders to the border with Indonesian West Timor - where they are now beyond the reach of the prosecution.

"This is a mistake that can't be corrected," says Aniceto Gutteres, director of the East Timor Human Rights Foundation.

Indeed Battalion 745, the Indonesian Army unit that UN investigators believe murdered former Monitor contributor Sander Thoenes and at least 20 other people in the two weeks before it pulled out of the territory, continued the killings even after Australian troops had landed in Dili.

It's a familiar pattern: A reluctance to expose peacekeepers to danger allowed criminals to escape in the former Yugoslavia and in Rwanda. International tribunals on the crimes in those countries have since handed down indictments, but many of the worst offenders are at large, either in friendly countries or in hiding.

Fernandes is in custody because he came home after, he says, his wife was raped by a fellow militia member. All of the men he has promised to testify against are in Indonesia, unlikely to make the same mistake and return. Leaders of the more than two dozen militia groups, with one exception, are likewise in Indonesia.

"Joao killed and he admitted it," says Olga Barreto, his court-appointed lawyer. "But he's just a small fry. He didn't have a plan to destroy East Timor. The ones who had a plan to destroy this country were the Indonesian military."

Dozens of survivors of the massacre Fernandes participated in have provided evidence.

On Sept. 8 1999, Fernandes and other Red and White Militia members were assembled by their commander and handed machetes. They stopped at the Indonesian Army command post in Maliana, near the border with Indonesian West Timor, to apply warpaint to their faces. Then they went to the Maliana police station, where residents of surrounding villages had been gathered "for their own protection."

As local police and soldiers watched, the militia killed every man they could find. At least 40 were hacked to death, many in front of their wives and children. Commander Natalino Monteiro and his followers slipped across the border.

Frustrated prosecutors say they're hopeful Indonesia will cooperate, either with prosecutions of its own or extraditions. But Indonesia's rights prosecutions "are totally stalled," said Joe Saunders, deputy Asia director for Human Rights Watch, in a statement on the verdict.

Indonesia's nationalist political climate ensures there will be no extradition. Western diplomats say the chance the UN will ever call for an international tribunal is almost zero.

The East Timor prosecutions are occurring in an unusual legal limbo. The United Nations Transitional Administration in East Timor has governed the territory since the referendum and will hold power at least until East Timorese elections, scheduled for August.

UNTAET is conducting the prosecutions itself, using a legal code patched up with bits of Indonesian and international law. UNTAET's prosecution is seen as crucial to the reconstruction effort. The UN believes convictions will help East Timor put its traumatic past behind it.

But prosecutors have been at work for more than a year and still haven't proven the systematic, willful destruction witnessed by thousands in 1999. UN strategy to this point has treated most cases as common crimes, rather than crimes against humanity. "There has been no evidence - either in Jakarta or Dili - of a systematic strategy to prosecute the top militia commanders or the Indonesian officers behind them," said Human Rights Watch's Mr. Saunders.

In Fernandes's case, prosecutors felt they couldn't yet make a case for the more muscular charge of a crime against humanity. "There's tons of evidence. But we haven't gone out and gotten it yet," says one prosecutor. "This man participated in one of the worst massacres and all they come up with is one count of murder," fumes Mr. Gutteres. "The evidence is everywhere. Perhaps they're not up to the job."

Chief Prosecutor Mohammad Othman says his team is slowly building up to cases that will implicate senior militia leaders and Indonesian Army officers in gross crimes against humanity, but that gathering evidence will take time.

The clock is running out. UN funding for East Timor is starting to dry up and UNTAET's mandate is scheduled to expire at the end of the year. The East Timorese government that will inherit the process will have only a handful of trained judges and prosecutors, and little extra money for the expensive business of justice.

(c) Copyright 2001. The Christian Science Publishing Society