May 2002, trials are proceeding in Jakarta against Indonesian army and police officers and civilian officials accused of serious human rights violations in connection with the 1999 violence there. Within Indonesia, the trials have generated little interest, nothing approaching the attention given to the prosecution of Tommy Soeharto, the former president’s son. Abroad, the delays in getting the trials underway, the high-ranking position of some defendants, the inexperience of the judges in trying human rights crimes, and the government’s pointed lack of interest in addressing military impunity have raised doubts that any of the accused will be convicted.

The problem is not so much with the way the cases are being judicially conducted. Inexperienced as they are, the judges have thus far exceeded expectations, rejecting military arguments and demonstrating a willingness to use international human rights law in a way that defies a common perception of them as incompetents or political hacks. Rather the problem, as revealed in court documents obtained by ICG, is with the limited mandate of the ad hoc court and the very weak way in which the indictments have been drawn up and presented by the prosecution. In particular:

• the events of 1999 are portrayed as resulting from civil conflict between two violent East Timorese factions in which Indonesian security forces were essentially bystanders;
   
• there is a failure to address the way in which the military’s creation and use of militia forces contributed to human rights violations: the military role is presented as failing to prevent violence rather than actively orchestrating it; and
   
• though purporting to identify crimes against humanity, the indictments as drafted suggest little more than criminal negligence on the part of the accused.

In these circumstances, regardless of whether the defendants are ultimately convicted, these trials may well produce the following consequences in Indonesia:

• the near-universal image within Indonesia of     the conflict as a civil war between two equally matched factions of East Timorese will be reinforced. With the prosecution failing to produce any evidence suggesting active involvement of high levels of the Indonesian government in the 1999 violence, the pro-independence victory is difficult to explain except in terms of ill will toward Indonesia on the part of the international community. Had the indictments been better prepared, they not only might have helped illuminate the political dynamics in East Timor in 1999, but might have led to more effective policies in Aceh and Papua;
   
• the United Nations in particular will continue to be seen as a biased and manipulative actor, further reducing the already slim chance that it could be an acceptable mediator or facilitator in future conflicts;
• the involvement of Indonesian military in creating, equipping, training, and funding the pro-integration militia forces in East Timor will remain unexamined, reducing the likelihood that there will be any deterrent to the continued or future use of such forces;
   
• efforts to curb human rights violations in areas of separatist conflict will have been portrayed as anti-nationalist, to the extent the role of the security forces is portrayed not just by the defence but more subtly by the prosecution as defenders of Indonesian unity. The linkage in these trials between pro-Indonesia violence and patriotism on the one hand, and human rights campaigning and near-treason on the other may well bolster resistance to demands for accountability; and
   
• the concept of crimes against humanity in Indonesia will have been trivialised.

There are several policy implications for those inside and outside Indonesia interested in accountability, military reform, and democratisation.

At least for the moment, no amount of international or domestic pressure is going to produce justice for serious human rights crimes by military officers in East Timor. At the same time, it would send precisely the wrong signal to the Indonesian government and, for that matter, to supporters of military and judicial reform to ease existing restrictions on aid to the Indonesian military, as exemplified by the Leahy amendment in the United States.^[fn]Section 572 of the Foreign Operations Appropriations Act for fiscal year 2002 (HR 2506), otherwise known as the Leahy amendment, reads:  (a) Funds appropriated by this Act under the headings “International Military Education and Training”: and “Foreign Military Financing Program” may be made available for assistance for Indonesian military personnel only if the President determines and submits a report to the appropriate congressional committees that the Government of Indonesia and the Indonesian Armed Forces are: taking effective measures to bring to justice members of the armed forces and militia groups against whom there is credible evidence of human rights violations in East Timor and Indonesia; taking effective measures to bring to justice members of the armed forces against whom there is credible evidence of aiding or abetting illegal militia groups in East Timor and Indonesia; allowing displaced persons and refugees to return  home to East Timor, including providing safe passage for refugees returning from West Timor and demonstrating a commitment to preventing incursions into East Timor by members of militia groups in West Timor; demonstrating a commitment to accountability by cooperating with investigations and prosecutions of members of the armed forces and militia groups responsible for human rights violations in East Timor and Indonesia; demonstrating a commitment to civilian control of the armed forces by reporting to civilian authorities audits of receipts and expenditures of the armed forces; allowing United Nations and other international humanitarian organizations and representatives of recognized human rights organizations access to West Timor, Aceh, West Papua, and Maluka; and releasing political detainees.Hide Footnote To waive those restrictions would be to reward an incompetent or obstructionist prosecution and a dissembling officer corps; it would also undermine those within Indonesia’s political elite and civil society who have been pressing for accountability as an essential aspect of military reform.^[fn]See ICG Asia Report No. 24, Indonesia: Next Steps in Military Reform. 11 October 2001, Jakarta/BrusselsHide Footnote

Because the truth of what happened in East Timor in 1999 is so critical to Indonesian perceptions of conflict more generally, however, every attempt should be made to ensure that the kind of information the prosecution should have collected, but did not, is made available to the Indonesian public.

At one level, this means heightened pressure on governments whose intelligence agencies were actively monitoring events in East Timor in 1999 to release information they have on the role of Indonesian government agencies and individual officials in the violence. Information leaked to Australian journalists from Australian government intercepts and published on 14 March 2002, the opening day of the Timor trials, give some indication of the extent of Indonesian state involvement, but a more systematic release of information from the Australian, U.S., and other governments is needed.^[fn]“Silence Over a Crime Against Humanity,” Sydney Morning Herald, 14 March 2002.
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At another level, this means that funds should be made available from foundations or donor governments to ensure that Indonesian journalists and legal analysts have access to publicly available court documents from the crimes against humanity trials taking place in Dili, East Timor, although there have been serious shortcomings there as well. (Among other things, the early trials did not have a court recorder present.) There may be more information from Dili than from Jakarta about the extent to which militia commanders operated on the basis of orders from Indonesian officers.

The failure of the Timor trials in Jakarta to constitute a genuine domestic remedy for the 1999 crimes will inevitably generate new calls for an international tribunal on East Timor, similar to those in place for the former Yugoslavia and Rwanda. Establishing such a tribunal would be both desirable and appropriate but with no known support for such an option from members of the UN Security Council, or even from the political leadership of East Timor, the chances of a tribunal being created are close to nil.  The slim prospects for justice make it more important to ensure that all available facts come to light while the memory of the 1999 destruction is still fresh, and before the efforts of senior army officers to change the historical record succeed.

Jakarta/Brussels, 8 May 2002