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02 September 2002
Quo Vadis, Human Rights Court?
Todung Mulya Lubis
Lawyer and legal observerFrom Dili, Mary Robinson has voiced a threat. Should the ad hoc human rights court fail to pronounce a credible verdict, she would urge various quarters to set up an international tribunal to try the suspected violators of international humanitarian law in the East Timor case. The anger of the UN High Commissioner for Human Rights makes complete sense. Whoever has been in East Timor since the referendum inevitably comes to the conclusion that crimes against humanity occurred there. The city of Dili and the Suai Church have been destroyed, and, along with the tens, if not hundreds, of people that have been killed, wounded, lost and raped, they constitute prima facie evidence.
A court is not set up to punish just like that, but rather to try. True, this process includes an element of punishment, but the question then is: has this been done in earnest? In the first phase, the ad hoc human rights court acquitted all but one defendant, former Governor Abilio Soares. It is this matter that needs scrutiny: why exactly must a former governor, whose authority had already been taken away from him by the signing of the New York Agreement, be found guilty while other defendants who still wielded power were pronounced innocent?
The judges should have made their decision on the basis of evidence presented in court. If the evidence they have obtained convinces them that an act contrary to the law or a crime against humanity has occurred, they can hand down a guilty verdict on the defendant. In a country that knows no jury system, the decision depends entirely on the judge.
Who controls the evidence? Many quarters blame the prosecution, which failed to submit evidence in court, and this may not be completely wrong. Reportedly, many witnesses that should have been presented could not be made to appear in court. The number of witnesses that could be brought to testify was minimal, making it difficult for the judges to obtain a clearer picture.
If it were that difficult to present a witness, wasn't it possible to cooperate with the East Timor administration? If the witnesses were scared, the Indonesian government could have guaranteed their security and safety, could it not? These questions arise as some of the evidence is reportedly still available at the UNTAET office in Dili. There is also other evidence, though, that could have been obtained from church organizations and other institutions in East Timor.
The judges could have ordered the prosecutor to present evidence and, where necessary, could have decided to make an on-the-spot inspection at the sites of the alleged occurrences. Was it because East Timor is no longer a part of this country that no on-the-spot inspections could be made? These reasons do not seem to be strong enough. Had there been a request, the East Timor government quite probably would have rendered assistance in the process of collecting evidence for the sake of seeking the fairest decisions for all sides: the victims as well as the perpetrators of human rights violations.
Courage on the part of the judges to effect a judge-made law, a legal breakthrough, does not seem to have been born either in the process of this first-wave trial, although in our legal system judges can make legal breakthroughs when necessary. What's more, we haven't observed any debate within the panel of judges, evident from the fact that there was no dissenting opinion. That's all the more curious as three of the five judges were ad hoc judges. Were all judges of one mind and one judgment, indeed?
The judge's autonomy in trying and pronouncing verdict is recognized universally. The prevailing disappointment in the verdicts of the ad hoc human rights court is not meant to force judges to make decisions along the line of the criticisms. Rather, it is difficult to deny that the demands for legal reform that have been fought for thus far have not borne much fruit. Our court system is still porous and often fails to convince the public that the verdicts it makes is in accordance with the law and a sense of justice. This goes not only for the human rights court but also for other courts.
What is at stake now is not how to avoid the formation of an international tribunal as sought by Mary Robinson. From the perspective of the interest of the big powers in the UN Security Council, we can sense that Mary Robinson's call will get stuck in mid-track, particularly as the present global mood is overshadowed by a spirit of anti-terrorism. The issue of human rights has subsided and been relegated to a sidetrack, and consequently military aid to Indonesia looks about to be resumed. So, from the global perspective, there is very little reason for worry.
On the national scene, however, we are faced with spreading skepticism caused by the lack of the court's integrity and the absence of political will on the part of the government to settle cases of human rights violations. Just because of these precedents, the Acehnese and the Papuans may have lost their confidence in the sincerity of the government to try perpetrators of human rights violations in their respective regions. If that is true, wouldn't it be increasingly difficult to solve the problems of Aceh and Papua once and for all?
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