UNITED NATIONS WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES CONCLUDES VISIT TO TIMOR-LESTE
DILI – 14 February 2011: The United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) visited Timor-Leste from 7 to 14 February 2011. The WGEID wishes to thank the Government of Timor-Leste for extending an invitation to the WGEID to visit the country and for its very positive cooperation before and during the mission. The Working Group also wishes to thank the United Nations Integrated Mission in Timor-Leste (UNMIT) as well as the United Nations Office of the High Commissioner for Human Rights Secretariat for their invaluable support.
The mission was conducted by two members of the WGEID, its Chair-Rapporteur, Mr. Jeremy Sarkin (South Africa), and Ms. Jasminka Dzumhur (Bosnia and Herzegovina). The purpose of the visit was to study Timor-Leste’s efforts in dealing with the issue of enforced disappearances, including how it is addressing cases of enforced disappearances which occurred in the past, as well as to collect information which may lead to the clarification of outstanding cases of enforced disappearances that transpired in the country and have been reported to the WGEID.
During its eight-day mission, the WGEID visited the former Commission for Reception, Truth and Reconciliation (post-CAVR) premises in Dili, which used to be a detention centre. In addition, it travelled around Timor-Leste and visited Suai, Baucau, and Liquica. The WGEID had the honour of meeting with His Excellency President José Ramos-Horta. The WGEID also held meetings with the Vice-Prime Minister for Social Affairs, the Vice-Minister of Justice, the Vice-Minister of Foreign Affairs and Cooperation, the Secretary of State for Former National Liberation Combatants Affairs, and senior officials of the Ministry of Foreign Affairs and Cooperation, including its Secretary-General and the Director-General for External Relations. It met with the President of the National Parliament as well as with the President of the Committee for Justice and Constitutional Affairs of the National Parliament. The WGEID also met with the Chief Justice, who is also President of the Court of Appeal, as well as with the Prosecutor-General. In addition, it met with the Director of the Criminal Investigation Service as well as with the Chief of the Forensic Unit of the National Police of Timor-Leste. The WGEID also met with the Ombudsman for Human Rights and Justice (Provedoria dos Direitos Humanos e Justiça) and the Deputy-Ombudsmen, the Secretary-General of the Timorese Red Cross (Cruz Vermelha Timor-Leste), as well as with many non-governmental organizations, relatives and victims of enforced disappearance and other civil society actors all over Timor-Leste.
The WGEID also held a number of meetings with representatives of the international community, including the Special Representative of the Secretary-General for Timor-Leste, the Deputy Special Representative of the Secretary-General for Governance Support, Development and Humanitarian Coordination, the Deputy Special Representative of the Secretary-General for Security Sector Support and Rule of Law, the Chief of the Human Rights and Transitional Justice Section of UNMIT, the Head of the Serious Crimes Investigations Team of UNMIT, the Head of Mission of the International Committee of the Red Cross (ICRC) in Timor-Leste; as well as representatives of UNMIT, UNICEF and UN Women.
Timor-Leste suffered from grave and large scale human rights violations between 1974 and 1999. The Commission for Reception, Truth and Reconciliation (CAVR) estimated that at least 102,800 civilians died during this period. Others however have assessed that possibly as many as 200,000 died. It is estimated that about 18,600 persons were killed or disappeared, the rest having died as a result of conflict-related illness or hunger. The number of missing is estimated by some to be in the tens of thousands. The CAVR process of collecting statements accepted that about 850 counts of enforced disappearances had been reported to them. Some have however estimated that possibly as many as 4,000 children were taken to Indonesia. The ICRC has a register of about 400 cases of children who disappeared. These cases could also qualify as enforced disappearances.
Since its establishment in 1980, the Working Group has dealt with 504 cases concerning Timor-Leste. The WGEID uses the rule of territoriality to determine to which country cases are assigned. While the cases were listed against Indonesia they are now listed against Timor-Leste. Of the 504 cases that the WGEID has had concerning the territory of Timor-Leste it has clarified 58 cases on the basis of information provided by the Government of Indonesia and 18 on the basis of information provided by sources. 428 cases still remain outstanding. The WGEID is hopeful that the information gathered could lead to the resolution of outstanding cases. Processes to ensure that family members are provided with death certificates are necessary to allow the WGEID to clarify cases but also for families to sort out inheritances and a range of other legal issues.
The WGEID notes that many families of the disappeared in Timor-Leste want to know the truth about the fate or whereabouts of their loved ones. They want to be able to bury them according to their traditions and culture.
There have been various processes in Timor-Leste to deal with questions relating to the truth about the conflict and disappearances. These include the Commission for Reception, Truth and Reconciliation (CAVR), which dealt with the period 25 April 1974 to 25 October 1999, and the bilateral Commission for Truth and Friendship (CTF), which dealt with the events of 1999, established by the authorities of both Indonesia and Timor-Leste. These processes have played a constructive role in discovering the truth about the past and occurrences of enforced disappearances.
The CAVR process was established in January 2002. It collected 7,669 statements, and conducted more than 1,000 interviews and conducted public hearings. The CAVR Community Reconciliation Process is recognised as novel, appropriate and successful application of restorative justice. The CAVR final report was released in October 2005. The CAVR made many recommendations including a comprehensive national reparations programme that contained a national memorialization programme and a limited material reparations programme. More needs to be done to follow up on the recommendations made. Although a number of efforts have been made to disseminate the CAVR recommendations and findings, more ought to be done to more widely disseminate the CAVR final report in accessible ways so that more people are able to access the findings. Using radio programmes to allow more people to listen to the findings would allow greater impact of the work of the CAVR. The work of the CAVR also needs to be built on and more research and other ways found to ensure greater truth recovery.
The CTF was established to “learn from the causes of past violence in order to strengthen the foundation for reconciliation, friendship, peace, and prosperity.” Its mandate was to find the truth about the events of 1999 to heal wounds and promote friendship. The establishment of the first ever truth commission by two countries was a new and innovative approach to transitional justice although criticised by many. The UN and a range of international and other organisations chose not to participate in CTF processes. Many condemned the CTF as an attempt to perpetuate impunity. The CTF did however make findings about who perpetrated human rights violations. It suggested that the “Governments of Indonesia and Timor-Leste work together to acquire information about the fate of disappeared people and cooperate to gather data and provide information to their families.” It also recommended collective reparations. These issues ought to be taken further by the Joint Ministerial Commission that meets between the two Governments. The process needs to show concrete and positive results for victims. The CTF also recommended a Commission on the Disappeared. Such a process could have crucial value. The Governments of Timor-Leste and Indonesia should continue their cooperation, through various processes, to develop tools to promote truth and justice. The conclusion of an extradition agreement between the two States would be an important step in this regard. The draft extradition law submitted to the Parliament of Timor-Leste by the Prosecutor-General should also be debated and provisions on extradition enacted.
It is a very positive development that the Provedor’s Office (Ombudsman) has recently signed a Memorandum of Understanding with the Indonesian National Human Rights Commission (Komnas HAM) to cooperate on the CTF’s recommendation on establishing a disappearance commission. While the MOU focuses only on the 1999 period hopefully over time this will be extended to include the full period of Indonesian presence on the territory of Timor-Leste. The process will initially focus on children who disappeared during this period and now possibly reside in Indonesia. However all the missing and disappeared ought to be incorporated into the process. The capacity, independence and resources of the Provedor’s Office should be enhanced in accordance with the Paris Principles so that it continues to improve and is able to contribute effectively to the bilateral cooperation to resolve cases of the disappeared.
The WGEID also looks forward to the coming into being of a well-resourced Public Memory Institute. The draft laws, on reparations and the establishment of the Institute, both due to be considered this month by the Timor-Leste Parliament, are important steps in the implementation of the CAVR/CTF recommendations. The Public Memory Institute is meant to play an advisory role, to support the Government in matters relating to disappearances and missing persons, establish, manage and update a central database on disappearances and missing persons and establish a Research & Documentation, Reparations and Missing Persons Unit. A central database is crucial to promote transparency, accuracy and certainty about who went missing and who disappeared. Statistical data of disappearances is needed. The data should be disaggregated by gender, age, geographical region, and type and location of place of disappeared. It should include information where available on the date and place of exhumation and information on family members. It is commendable that the 2011 Timor-Leste budget provides funds for the establishment of the Institute and for forensic issues. The coming into being of the Institute should be a major step forward in truth recovery as well as ensuring more research and documentation about the past. The creation of this institute should promote a better understanding of the nature, causes and impact of human rights violations, promote a culture of responsibility and accountability, and respect for the rule of law. It should aid in remembering and honouring those who died in the conflict. It should also assist in determining the fate or whereabouts of disappeared and missing persons.
Both the CAVR and the CTF Commissions recognized that the people of Timor-Leste as a whole were affected by the suffering and were, in one way or another, victims of the conflict. A series of measures to acknowledge veterans of the conflict have been adopted, which include inter alia payments of compensations and pensions. A number of social assistance programmes have also been established. The draft reparations law, also due to be debated this month in Parliament, intends to create the framework under which reparation measures will be implemented. The National Reparations Programme includes symbolic and material measures designed to honour and remember those who lost their lives and those who otherwise suffered within the context of the conflicts that occurred in Timor-Leste between 25 April 1974 and 25 October 1999. The programme is designed to rehabilitate and empower the vulnerable victims as well as communities severely affected by the conflict, to commemorate significant events related to the conflict, and to promote civic education on human rights. The WGEID recommends that a programme of reparations should be designed to ensure integral reparations and includes compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition. Developing more places that commemorate and memorialise the events of the past ought to be constructed in consultation with victims and associations of victims. Developing a process of archiving and retrieval of information relating to the conflict and those who disappeared is also crucial for memory and justice.
The process to determine where people who disappeared in Timor-Leste are has had some success with the discovery of various grave sites that have been exhumed. In 2009, the 12 November Committee, an association of those who survived the Santa Cruz massacre, in cooperation with forensic experts from the Victorian Institute of Forensic Medicine (VIFM) and the Argentine Forensic Anthropology Team (EAAF), examined 16 bodies of Santa Cruz massacre victims. They were able to identify 11 of them by way of DNA tests. In 2010, the Government contracted an international forensic team to conduct a forensic examination of an area west of Dili. Nine bodies were found. DNA testing was conducted in Australia. However, a lack of ante-mortem and family blood samples collection hampers identification. Collecting this data could be part of the work of the Public Memory Institute. Usefully the 2011 Timor-Leste budget that was agreed to by Parliament on 28 January 2011 allocates an amount for “mortal remains” which will hopefully be used for these processes. International assistance should be provided both materially and for the development of a forensic unit with the requisite expertise and capacity. Assistance with DNA capabilities is also needed. There are not clear rules of procedure related to the process of managing human remains. There are no rules of procedure for mortal remains after their exhumation, including the conditions for their storage. An appropriate legislative framework is therefore needed on forensic examinations and procedure. Managing the forensic process is an important aspect to ensure justice. In addition, police and prosecutors need to be trained on forensic issues.
As far as dealing with accountability for enforced disappearances Timor-Leste has adopted various laws. These include the Criminal Procedure Code, a Penal Code (promulgated on March 29 2009), and a Law on the Protection of Witnesses, although the committee that is to be established in terms of the law is not yet functional.
The Working Group welcomes the fact that the Penal Code of Timor-Leste provides for the crime of enforced disappearance as a crime against humanity through the incorporation of article 7 of the Rome Statute. The crime carries the punishment of 15 to 30 years in prison. According to the 1992 Declaration on the Protection of All Persons from Enforced Disappearance, all acts of enforced disappearance shall be offences under the criminal code punishable by appropriate penalties. Timor-Leste should therefore amend its Penal Code to incorporate the crime of enforced disappearance as an autonomous crime for cases not linked to crimes against humanity.
Article 120 of the Penal Code provides that “amnesty extinguishes criminal prosecution and halts execution of a sentence yet to be served in whole or in part, as well as its effects and accessory penalties to the extent possible.” Article 122 provides that a clemency (indulto) can extinguish a penalty. Article 18, par. 1 of the Declaration for the Protection of All Persons against Enforced Disappearances states: “Persons who have or are alleged to have committed offences referred to in article 4, paragraph 1, above, shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction.” In its General Comment on Article 18, the WGEID stated that “States should refrain from making or enacting amnesty laws that would exempt the perpetrators of enforced disappearance from criminal proceedings and sanctions, and also prevent the proper application and implementation of other provisions of the Declaration.” In 2010, in its General Comment on the Right to the Truth, the WGEID expressed its “opinion that no … limitation [to the right to justice] may occur when the enforced disappearance amounts to a crime against humanity.” Therefore, it is recommended that the Timor-Leste criminal law be amended to remove the possibility of granting amnesty for serious crimes of international law, including the crime of enforced disappearance, in line with article 18 of the Declaration for the Protection of All Persons against Enforced Disappearances.
There have been various institutions involved in the process of investigating and prosecuting serious crimes committed in the past. The Special Panels for Serious Crimes (SPSC) was established by UNTAET under its mandate to establish law and order after the end of the hostilities. The Panels were invested with authority over serious international and national crimes committed between January and October of 1999.
The Serious Crimes Unit was established in terms of Security Council Resolution 1272 (1999). The Serious Crimes Unit (SCU) was responsible for conducting investigations and preparing indictments to bring to justice those responsible for crimes against humanity and other serious crimes committed in 1999. Its mandate ended in May 2005.
The Serious Crimes Investigation Team (SCIT) was established pursuant to Security Council resolution 1704 (2006). The main mandate of the SCIT is to assume the functions of the former SCU and assist the Office of the Prosecutor-General with outstanding investigations into serious crimes committed in the country in 1999, including cases on enforced disappearances as a crime against humanity. In February 2008 the SCIT was investigating 396 cases and by December 2010 they had concluded 184 cases. There are indictments for enforced disappearances as a crime against humanity in 27 cases. The SCIT should continue be sufficiently supported and resourced. Greater coordination between the SCIT, the Prosecutor-General and the courts needs to occur. Their capacity and independence ought to be strengthened.
Most of the perpetrators are still at large. They are mostly outside of Timor-Leste. Not many persons have been prosecuted for the crimes committed between 1974 and 1999. As a result some victims are angry and frustrated. There are continued calls for an international tribunal to hold persons accountable for the crimes committed in the past.
The WGEID recognizes the need to strengthen the capacities of the police, prosecutors and judges in Timor-Leste. Significant reforms and the completion of the legal framework are still required to raise the quality and access to the justice system. Strengthening legal aid is necessary to allow greater access to justice. There needs to be an increase in the number of prosecutors. They need to be provided with the necessary expertise, and specific training, including in the local languages and in relevant international law.
The Legal Training Centre should continue to conduct, on a regular basis, education and training for, inter alia, prosecutors, judges, and defence lawyers. The curriculum ought to be developed to ensure that international laws and standards, particularly related to enforced disapearances, are enhanced. The training provided should take into account the various official, working and spoken languages in Timor-Leste.
Without effective criminal justice for serious crimes there cannot be lasting peace, nor can such crimes be prevented in the future. The WGEID notes the importance of taking immediate and effective steps to investigate all unresolved cases of enforced disappearances.
Victims and associations of victims of enforced disappearances have at times been insufficiently included in the processes concerning the disappeared. The WGEID, in its recently issued General Comment of the Right to the Truth, noted that in relation to enforced disappearances the right to know the truth means “the right to know about the progress and results of the investigation, the fate or the whereabouts of the disappeared persons, as well as about the circumstances of the disappearances, particular the identity of the perpetrator(s).” Timor-Leste ought to enact a law on access to information to support the right to know the truth that respects confidentiality and the rights of the persons concerned. Family members and family associations should receive greater support to allow them to play a critical role in addressing enforced disappearances issues.
The WGEID would like to commend the Government of Timor-Leste for having ratified most of the core UN human rights treaties and the Rome Statute of the International Criminal Court, which includes enforced disappearance as a crime against humanity. It encourages the Government of Timor-Leste to sign and ratify the International Convention on the Protection of All Persons from Enforced Disappearance as well as to accept the competence of the Committee in terms of articles 31 and 32 of the Convention on individual and State complaints. The WGEID believes that the entry into force of the Convention on Enforced Disappearances and the Committee to be formed is a major development in fighting the scourge of enforced disappearances. The WGEID also encourages Timor-Leste to ratify other international instruments which may have an impact on enforced disappearances, such as the First Optional Protocol to the International Covenant on Civil and Political Rights and the Optional Protocol to the Convention against Torture.
Timor-Leste should be assisted in its endeavours and should be provided with funds, training, technical assistance, capacity building measures, and other necessary support, by the international community especially after the expected expiry of the mandate of UNMIT at the end of 2012. The WGEID recognizes the important role the United Nations has played in the country, for example, by the continuing work conducted by SCIT. The role of the UN ought to continue in various ways even if the UNMIT mission does not continue beyond 2012. The presence, for example, of OHCHR is necessary to assist and provide support in the areas of human rights, transitional justice and rule of law.
The above mentioned preliminary findings, as well as other issues arising from the information-gathering activities of the WGEID during its mission to Timor-Leste, will be elaborated in greater detail in the report to be submitted to the Human Rights Council in March 2012.
The Working Group was established by the United Nations Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. It endeavours to establish a channel of communication between the families and the Governments concerned, to ensure that individual cases are investigated, with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. In view of the Working Group’s humanitarian mandate, clarification occurs when the fate or whereabouts of the disappeared person is clearly established. The Working Group continues to address cases of disappearances until they are resolved. It also provides assistance in the implementation by States of the United Nations Declaration on the Protection of All Persons from Enforced Disappearance.
The Working Group is comprised of five independent experts from all regions of the world. The Chair-Rapporteur is Mr. Jeremy Sarkin (South Africa) and the other members are Mr. Ariel Dulitkzy (Argentina), Ms. Jasminka Dzumhur (Bosnia and Herzegovina), Mr. Osman El-Hajjé (Lebanon) and Mr. Olivier de Frouville (France).
For more information on the WGEID, please refer to the following web site: http://www.ohchr.org/english/issues/disappear/index.htm
OHCHR Country Page – Timor-Leste: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/TPIndex.aspx
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