AI-index: ASA 57/001/2001 27/07/2001
1. Introduction
When the United Nations Transitional Administration in East Timor (UNTAET) was established on 25 October 1999 under United Nations (UN) Security Council Resolution 1272 it was tasked, among other things, with establishing non-discriminatory and impartial institutions, including a judiciary and civilian police force, to ensure that the rule of law be established and to promote and protect human rights.1
In a report published in August 2000 Amnesty International expressed its concern about the delays in establishing a functioning criminal justice system. The organization warned that institutional and legal weaknesses were contributing to a law and order vacuum the result of which was the emergence of new patterns of human rights violations. The report contained comprehensive recommendations to UNTAET on a wide range of issues, while recognizing the scale of the task. In relation to the administration of justice, UNTAET was urged to accelerate its efforts to establish the legal and judicial framework needed to protect human rights before the problems which were emerging became institutionalized.2
A mission to East Timor in March 2001 by Amnesty International researchers revealed that the necessary measures have not been taken with the result that law and order is now barely being maintained, justice is not being administered effectively and the human rights of the East Timorese people cannot be guaranteed.
The judicial system is only partially established and what does exist is fragile. Members of the fledgling judiciary lack the necessary training and support and are vulnerable to political pressure, including through threats and intimidation. The courts lack basic facilities and by June 2001 only one out of East Timor's four district courts was fully operational. A public defenders service has been established but this small group of lawyers also lacks the support needed to make up for their lack of experience. In addition, the laws that are being applied in East Timor are not always consistent with international human rights standards.
The rights of suspects to a fair trial have been adversely affected by these and other shortcomings of the criminal justice system. Detainees have gone for weeks or even months before having access to legal counsel. It is still not uncommon for individuals to be detained beyond the expiry of their detention orders. The right to trial without undue delay has also been undermined by delays in establishing the judicial system. A disturbing pattern of political interference in the workings of the courts has also emerged which to date has not been adequately confronted by UNTAET or the East Timorese political leadership.
At the same time, the UN Civilian police (Civpol), currently responsible for law enforcement in East Timor, have not always responded effectively where civil disturbances have occurred and in some cases its members have committed violations themselves in their efforts to prevent such disturbances. Failure to confront emerging human rights problems and a widely held perception that UNTAET has been unable to maintain law and order has created opportunities for unofficial security groups to operate.
In the meantime, UNTAET's investigations into crimes against humanity and other serious crimes committed by the Indonesian security forces and pro-Indonesian militia against the supporters of East Timorese independence during 1999 have been unacceptably slow. The Serious Crimes Unit - which is responsible for investigating and prosecuting these crimes - has suffered from a combination of inadequate resources, a shortage of experienced staff, poor management and a lack of political support. The slow pace and questionable quality of its work has resulted in a loss of confidence among the East Timorese in UNTAET's ability or will to bring perpetrators to justice with inevitable negative consequences for the process of reconciliation in East Timor.
UNTAET's current mandate expires on 31 January 2002. Planning for UN support for East Timor after this date is now in progress. It is therefore a critical moment in which an assessment of needs must be carried out and detailed plans developed for ongoing assistance and support to the building of the new country of East Timor.
Many of the tasks which UNTAET was mandated to perform under Security Council Resolution 1272 have not yet been completed - including the establishment of a judiciary, civilian police force and the rule of law. A continued, high level of international support for East Timor will therefore be required for a number of years in order that UNTAET's mandate can be fulfilled, and secure foundations laid for the new state.
One essential component of this support should be a long-term UN human rights field presence to assist the future East Timor government in the task of developing an institutional and legal framework to protect and promote human rights. Among the functions which the international human rights presence should be mandated to perform are:
- to provide legal advice on both existing and new legislation to ensure its compliance with international human rights standards;
- to provide technical assistance to the future East Timor government to ratify and implement human rights conventions;
- to provide human rights training for police, military, members of the judiciary, members of the government and other relevant officials;
- to develop human rights monitoring and documentation capacity in East Timor, including by providing training and mentoring support to local human rights workers throughout East Timor;
- to assist the future East Timor government to monitor the human rights situation in East Timor, including the security of returning refugees, in order to identify any problems which may emerge and to develop effective remedies.
The international community should also assist in the fulfilment of Security Council Resolution 1272 by:
- ensuring that UNTAET is provided with the necessary funds and resources to continue its efforts to establish a functioning independent and impartial judiciary and to develop a legal framework to protect human rights in the final months of its mandate;
- providing ongoing support after 31 January 2002, including funding, resources and qualified personnel, to ensure that the objectives set for UNTAET are met, including to create non-discriminatory and impartial institutions, particularly those of judiciary and police, and to ensure the establishment of rule of law and the promotion and protection of human rights;
- supporting the establishment, including by providing funds and expert personnel, of a program to monitor in detail the developing justice system from a human rights law perspective. The program should track both ordinary criminal cases and cases which involve serious human rights violations and abuses constituting war crimes or crimes against humanity as well as assess laws and practice in the field. It should publish regular reports and provide detailed recommendations to the Special Representative of the Secretary General and later to the East Timor government on measures required to strengthen the justice system;
- providing an explicit mandate and the necessary resources to continue, accelerate and improve the process in East Timor of investigating and prosecuting crimes against humanity and other serious crimes. It should urge the Indonesian government to cooperate with these investigations and to bring its own nationals suspected of committing serious crimes in East Timor to justice without further delay in trials which meet international standards of fairness. If Indonesia fails in its obligations to bring perpetrators to justice in its own courts serious consideration must be given to alternatives, including an international criminal tribunal.
In the meantime, UNTAET should, as a matter of urgency, take the following action to improve the administration of justice:
- continue to make efforts to establish without delay a functioning judicial system, including by enhancing the practical training for judicial officials in the application of human rights standards, improving on the judicial mentor support program and providing judicial officials with all necessary resources to carry out their duties with maximum efficiency;
- initiate a prompt review of all applicable laws, including UNTAET regulations, to ensure that these fully conform with international human rights standards;
- undertake all necessary practical measures, including establishing training programs, to ensure that the actions of all law enforcement officials fully meet international human rights standards as well as applicable laws;
- undertake an immediate review of the work of the Serious Crimes Unit and make its findings public. Measures to address the problems of the unit in investigating and prosecuting crimes should be taken as a matter of urgency so that it can conduct credible and timely investigations and prosecutions which take into account the systematic and widespread nature of the crimes.
Finally, Amnesty International calls upon the members of the future Constituent Assembly, which is scheduled to be elected on 30 August 2001 and which will adopt a constitution for East Timor, to ensure that there is clear and explicit commitment in the future Constitution to protect and promote human rights, including through the ratification of international human rights instruments.
Footnotes
1 Report of the UN Secretary-General on the Situation in East Timor, S/1999/1024, 4 October 1999.
2 Amnesty International: East Timor: Building a new country based on human rights. AI Index ASA 57/005/00, August 2000.
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