XANANA GUSMAO’S VIEWS ON JUSTICE

‘I 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.

o       ‘Peace in 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.

o       ‘We 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;

o       ‘These 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.

o       ‘We have 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:

Political/elite 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. 

Community-based reconciliation:  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. 

National healing through truth-telling:  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 interview 10/10/01).

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 groups:

‘to 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:

‘Amnesty can be considered, but only after justice, after trials.  Not before.’

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 independence day.

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. 

‘We 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. 

‘I am ready also [to apologise for past crimes] because I was central commander of Fretilin.  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