don’t deny the need of justice. People
sometimes say if you don’t punish these people you will allow a political
party to do the same, because everyone now knows there is no justice. I, myself, don’t believe in this….Nobody in the world
said to Mandela ‘your commission of truth and reconciliation is
unacceptable’, everybody applauded it…. To us, it seems there are demands
[for trials by the international community].
How can we dream of being a model of justice in the world. My problem is if you try the militia, one or two immediately,
the others will not come….I am thinking of a process of reconciliation here
that can avoid instability in the future and one that people can accept.
I will not say no justice, but in a process maybe like South Africa’.
(The Age, 18/12/00)
Gusmao’s approach to the
issue of justice for past crimes is complex, nuanced and at times ambiguous.
He has emphasised the following principles relatively consistently:
The priority for East Timor is
peace and stability, the key to which is reconciliation.
The key to reconciliation is improving socio-economic welfare, which
enables people to forgive the past. ‘Justice’
should be thought of as a tool for reconciliation, not a cause in its own right.
East Timor will not just come about with the investigation and punishment of
wrong-doing. Peace is about the
implementation of social justice for the whole population whether or not some
voted for or against independence’ (Address to Yale University, 2/4/01)
Justice should therefore be
conceptualised not as a narrow legal process, but as ‘social justice’ - the
creation of a ‘fair’ society offering basic socio-economic security.
Social justice must be the priority for East Timor.
have to find a balance between social rights and the right to justice narrowly
defined in the formal sense of the law, judiciary, trials, punishment and
prison. If we only narrowly define
justice in this formal way we will have ignored much that is important to
people’s lives’ (Equal Opportunity Commission, Victoria, Inaugural Human
Rights Oration, October 2001)
Justice must be sensitive to the
imperative of improving relations with Indonesia and resolving border stability
and refugee repatriation problems with West Timor.
East Timor’s capacity to deliver
justice through formal criminal procedures is severely limited.
The costs of delivering formal justice must also be weighed against
other, more pressing, development priorities;
men, they will go to trial, they will go to prison.
Who will pay for their daily life in prison?
The money that you pay in taxation, instead of going to teachers and
nurses, will go to prisoners.
Do you accept this?
What we have discussed is that if we need to repair buildings, the people
who burned the buildings will repair them.’ (Time Asia, 3/9/01)
Restorative justice is more
effective than retributive justice. Justice
needs to be forward looking and to reach out to both victim and perpetrator.
The ‘political’ crimes
committed during the independence struggle should not be categorized - or
punished - in the same way as normal crimes.
The suffering inflicted by those crimes should be viewed as a
‘sacrifice’ and should be redressed not through retributive (i.e. criminal)
justice, but by proving that those sacrifices were not made in vain.
The way to do this is to deliver real benefits to the people.
to prove that independence means something new, something good to the people to
understand the sacrifices’ (ABC Radio National interview 19/11/00)
Gusmao has stressed the
importance of four levels of reconciliation:
Gusmao has pushed for reconciliation amongst East Timor’s political
elite since well before the 1999 ballot, including through the June 1999 Dare II
talks and CNRT reconciliation initiatives.
Gusmao views political reconciliation as a long process of developing
mutual trust between the various factions.
He has been deeply involved in promoting dialogue with pro-autonomy side,
including through a series of meetings with UNTAS since December 1999.
Gusmao is a strong advocate of community-based processes, whereby
militias are reintegrated into society by returning to their villages, asking
for forgiveness and making amends by supporting victims and their families (e.g.
rebuilding houses). Gusmao has traveled
widely in East Timor with the stated purpose of persuading communities to
forgive the militias and to understand their actions in the context of decades
of abuse and social manipulation.
Gusmao has stressed the need for healing on a national level through
truth seeking as a means to ‘forge a strong, unified and compassionate
society’ (EOCV address, 10/01).
Reconciliation with Indonesia: Gusmao views questions of justice within the context of his commitment to building relations with Indonesia (ABC 10/10/01). He has thus advocated forgiveness for the crimes committed by Indonesia in East Timor.
Gusmao has stressed that he
supports accountability for past crimes and has not categorically opposed the
use of formal criminal prosecutions as a means by which to deliver justice.
However, he has not actively promoted them, and has questioned the use of
formal legal procedures on the grounds that
· They are of limited use in promoting peace and reconciliation in post-conflict societies (SMH 18/12/00, ABC interview 10/10/01) and increase the risk of ‘victor’s justice’ (EOCV Address, 10/01);
They will deter the return of
militias in West Timor, jeopardising repatriation efforts and continuing to
foment border unrest (SMH 18/12/00, UNTAET 2/7/01)
· Any process that prosecutes East Timorese but does not try TNI generals, who committed 95% of the crimes, will be flawed (ABC interview 10/10/01).
East Timor lacks the resources to
conduct criminal prosecutions and jail (Time Asia interview 3/9/01, ABC
Gusmao is convinced that in
the absence of reconciliation, the militias will work to destabilise the
security of East Timor. He has thus
embarked on an active policy of reconciliation with moderate militia leaders and
worked to secure their acceptance that they may have to face trial following
their return (Reuters 14/9/01, UNTAET 22/9/01).
He has told militia leaders that they would not be arrested initially,
and hinted at the possibility of a pardon (following sentencing) from the East
Timor government (UNTAET 22/9/01). Gusmao
favours community reconciliation processes for subordinates in the militia
the militias (members) I will recommend that the punishment is not only to be
sent to trial, but maybe there are many ways of trying them by working to the
community etc etc, because they were ordered to do something wrong you know, and
that is why I cannot punish the subordinate ordered to kill.
Of course the way that he killed enters into the consideration also, but
who has more responsibility is his commander or the political leaders or the
Indonesian generals.’ (ABC Radio National Interview 19/11/00).
Gusmao has argued that ‘amnesty’ is the only realistic way to deal with militia leaders and TNI/Kopassus. In 1999, before the ballot and then following the violence in September, Gusmao proclaimed a ‘general amnesty for all political crimes’ (statement issued by Gusmao, 26/8/99). In response to pressure from UNTAET and the international community, Gusmao appears to have moderated his stance to a position of ‘amnesty after justice’. He told UNTAET (de Mello) in July that he supported the principle of ‘no amnesty before justice, amnesty after justice, and then amnesties for those who have been tried on a case-by-case basis’ (meeting with UNTAET officials, 2/7/01). In an interview with Time Asia (3/9/01) he said:
can be considered, but only after justice, after trials.
Gusmao has not clarified
what he means by the term ‘amnesty’ and has also remained ambiguous about
exactly what he means by justice. He
has suggested that the East Timor parliament grant pardons, possibly on
Gusmao has not actively
opposed the creation of an international tribunal, but has made it clear that he
believes it should not be a priority for East Timor in the face of other
pressing burdens. He argues that an
international tribunal is the responsibility of the international community and
that if established, it should not be held in East Timor or prosecute East
Timorese. Gusmao has said he is
concerned over the repercussions of an international tribunal for East Timor’s
relations with Indonesia, including security along the border.
cannot even think of the international tribunal because we have so many things
to do.’ (Suara Timor Lorosae, 29/3/01).
Gusmao has supported
efforts to pressure Indonesia to make progress on the ad hoc tribunal.
He has said that Indonesian generals must be held accountable for their
crimes (meeting with UNTAET officials, 2/7/01).
Gusmao is skeptical about the prospect of this ever occurring and has
expressed concerns that, like prosecutions in East Timor or in an international
tribunal, the Indonesian process may jeopardise efforts at reconciliation.
Gusmao has stated that he
would accept criminal prosecutions against himself as central commander of
Fretilin, although has tended to respond to questioning on the issue of
Fretilin/Falintil crimes by advocating that they apologise (as opposed to face
justice) for past acts.
am ready also [to apologise for past crimes] because I was central commander of
Sometimes, I think we should have a tribunal.
If I have to go to trial, I’ll go.’ (Time Asia interview, 3/9/01)
Prepared by Carolyn Bull, Interim Office, Commission for Reception, Truth and Reconciliation in East Timor, November 2001.
Copyright © 2001 Commission for Reception, Truth and Reconciliation in East Timor