ACCOUNTING FOR ACCOUNTABILITY: A
POST-CONFLICT ROLE FOR TRANSNATIONAL
ADVOCACY NETWORKS IN EAST TIMOR
CATHERINE M. YANG*
ABSTRACT
East Timor, located in Southeast Asia between Indonesia and Australia,
is a fairly new democracy with a long history of colonization, occupation, and
mass violence. On August 30, 1999, the East Timorese voted overwhelmingly to
achieve independence from Indonesian rule. The Indonesian military and
militias responded with a wave of violence that abated only with the intervention
of the UN-mandated International Force in East Timor.
Though accountability mechanisms emerged in the aftermath, practical
shortcomings in the efforts derailed the goal of meaningful accountability. As a
result, there exists a gap in accountability for the East Timor-Indonesia conflict,
such that high-level officials responsible for the violence have evaded prosecution
and responsibility for their actions.
This Note takes the framework of transnational advocacy networks (TANs)
out of its traditional usage— helping to end ongoing human rights violations—
and applies it to the post-conflict situation in East Timor, asking whether and
how TANs can influence implementation of meaningful accountability mechanisms in the aftermath of mass violence. The Note proposes three interrelated
ways in which TANs can work to close the gap in accountability in East Timor:
by (1) engaging in capacity building and domestic legal development, (2) participating in domestic legal proceedings, and (3) maintaining external and
internal communications. It concludes that, even though there will be challenges
in overcoming the present lack of political will, TANs can help to lay the
groundwork for future, more comprehensive accountability efforts.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. TRANSNATIONAL ADVOCACY NETWORKS IN THE CONTEXT OF
ONGOING MASS VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Building and Mobilizing the Networks . . . . . . . . . . . . . . . .
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* J.D., Georgetown University, expected May 2014; B.A., magna cum laude, Princeton University, 2011. The author thanks Professor Jane Stromseth for her guidance and feedback on an
earlier version of this Note. The author also thanks Robert Smith and the editors and staff of the
Georgetown Journal of International Law for their assistance, as well as her family and friends for their
support. © 2014, Catherine M. Yang.
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B. Networks Making the Struggle for Independence
Transnational. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. IN PURSUIT OF ACCOUNTABILITY: DOMESTIC AND INTERNATIONAL
EFFORTS AT PROSECUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Indonesian Human Rights Court: “Just One Percent Above
a Joke” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. East Timorese Special Crimes Process . . . . . . . . . . . . . . . . .
IV. TRANSNATIONAL ADVOCACY NETWORKS IN THE AFTERMATH OF
MASS VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Educational Resources . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Capacity Building. . . . . . . . . . . . . . . . . . . . . . . . . .
2. Domestic Legal Development . . . . . . . . . . . . . . . .
B. Participation in Domestic Proceedings . . . . . . . . . . . . . . . .
1. Reducing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Advancing the Rule of Law . . . . . . . . . . . . . . . . . .
C. External and Internal Communication: Keeping East Timor
Relevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Challenges for TANs . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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INTRODUCTION
The international community is no stranger to mass atrocities.
Cambodia and East Timor in Southeast Asia, Rwanda and Sierra Leone
in Africa, and Guatemala and Argentina in Latin America represent
only some of the many areas that have endured terrible acts of violence.
In response, actors around the world call for accountability: for the
perpetrators of mass violence to be held criminally responsible for their
actions.
The last twenty years have witnessed the implementation of a variety
of accountability mechanisms. The three most common forms are
international criminal tribunals,1 domestic trials,2 and hybrid tribu-
1. For example, the international criminal tribunals in Rwanda and the former Yugoslavia
prosecute persons responsible for war crimes and other grave human rights violations in their
respective states. See S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994); S.C. Res. 827, U.N. Doc.
S/RES/827 (May 25, 1993). Staffed with international judges and lawyers, these tribunals operate
in situations where ongoing domestic conflicts and ethnic tensions preclude local trials as viable
options. See Jane E. Stromseth, Introduction: Goals and Challenges in the Pursuit of Accountability, in
ACCOUNTABILITY FOR ATROCITIES: NATIONAL AND INTERNATIONAL RESPONSES 1, 15 (Jane E. Stromseth
ed., 2003) [hereinafter ACCOUNTABILITY FOR ATROCITIES].
2. Guatemala is one state in which domestic trials have recently taken on new significance.
On May 10, 2013, former military dictator José Efrain Rı́os Montt was convicted of genocide and
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nals,3 which employ domestic and international elements. These experiences suggest, overall, a shift from a culture of impunity to a culture
of accountability. They also raise the question of what factors significantly influence the implementation of accountability mechanisms.
While pure theories of domestic politics and international relations4
help to address the issue, they largely do not account for the vast
amount of coordination between the frameworks, i.e., how domestic
conditions drive international efforts and vice versa. The theory of
transnational advocacy networks bridges this gap.
Coined by Margaret Keck and Kathryn Sikkink, transnational advocacy networks (TANs) are coalitions of grassroots movements and
organizations that exert international influence through soft power
strategies.5 While the traditional or dominant actors may be international and domestic NGOs and other formal research and advocacy
organizations, TANs also encompass the media, churches, and even
individuals.6 The key is information exchange. Intended primarily to
facilitate global discourse on relevant issues, TANs increase domestic
crimes against humanity. Jonathan Birchall, ICTJ: Rios Montt Conviction is a Victory for Justice, THE
TRIAL OF EFRAIN RIOS MONTT & MAURICIO RODRIGUEZ SANCHEZ (May 11, 2013), http://
www.riosmontt-trial.org/2013/05/ictj-rios-montt-conviction-is-a-victory-for-justice/. Although the
Constitutional Court overturned the verdict on May 20, 2013 in response to due process
challenges, Rı́os Montt’s case was nevertheless historic for being the first prosecution of a former
head of state in a purely national court. See Emi MacLean, Guatemala’s Constitutional Court
Overturns Rios Montt Conviction and Sends Trial Back to April 19, THE TRIAL OF EFRAIN RIOS MONTT &
MAURICIO RODRIGUEZ SANCHEZ (MAY 21, 2013), http://www.riosmontt-trial.org/2013/05/
constitutional-court-overturns-rios-montt-conviction-and-sends-trial-back-to-april-19/.
3. The Special Court for Sierra Leone (SCSL) turned heads in 2012, when it convicted
Charles Taylor, former president of Liberia, for his involvement in war crimes and crimes against
humanity. Taylor was the first former head of state since Nuremberg to be convicted by an
international court for war crimes or crimes against humanity. See The Special Court for Sierra Leone’s
Landmark Judgment in the Trial of Charles Taylor, HUM. RTS. WATCH, http://www.hrw.org/topic/
international-justice/charles-taylor (last visited Dec. 24, 2013). The SCSL employs a mix of
domestic and international judges and lawyers, and it has the authority to prosecute specified
offenses under both international and domestic law. See Avril D. Haines, Accountability in Sierra
Leone: The Role of the Special Court, in ACCOUNTABILITY FOR ATROCITIES, supra note 1, at 197-99.
4. See, e.g., Tom Hadden, Punishment, Amnesty and Truth: Legal and Politic Approaches, in
DEMOCRACY AND ETHNIC CONFLICT: ADVANCING PEACE IN DEEPLY DIVIDED SOCIETY (Adrian Guelke ed.,
2004); TRICIA D. OLSEN ET AL., TRANSITIONAL JUSTICE IN BALANCE: COMPARING PROCESSES, WEIGHING
EFFICACY (2010); KENNETH N. WALTZ, THEORY OF INTERNATIONAL POLITICS (1979).
5. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS
IN INTERNATIONAL POLITICS 1 (1998) [hereinafter ACTIVISTS BEYOND BORDERS].
6. See Margaret E. Keck & Kathryn Sikkink, Transnational Advocacy Networks in International
and Regional Politics, 51 INT’L SOC. SCI. J. 89, 91-92 (1999) [hereinafter Transnational Advocacy
Networks].
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channels of communication with the international community by
framing issues appropriately for their target audiences, promoting
norm implementation, and monitoring domestic compliance with
international standards.7 TANs operate in a “boomerang pattern of
influence”: when the channels between domestic groups and their
governments have been blocked or have proven ineffective for resolving conflicts, domestic actors bypass the state and appeal to their
international networks, which then exert external pressure on the
conflicted state.8 Through this process, TANs affect the behavior of
state and international players.9
Traditional scholarship on TANs in the context of human rights
focuses on their role in countries experiencing grave human rights
violations. In many cases, TANs have helped to bring international
pressure onto oppressive governments, curbing state abuses.10 However, there is an absence in the literature examining the potential effect
of TANs after the violence ends. This Note seeks to articulate a role for
TANs in the aftermath of mass violence in the context of the East
Timor-Indonesia conflict. Specifically, it asks whether and how TANs
can influence the implementation of meaningful criminal accountability mechanisms in East Timor. In so doing, this Note accepts the basic
premise that criminal accountability efforts are central to addressing
past atrocities and cannot be ignored.11
7. ACTIVISTS BEYOND BORDERS, supra note 5, at 3.
8. See id. at 12; Transnational Advocacy Networks, supra note 6, at 93 (“[I]nternational contacts
can ‘amplify’ the demands of domestic groups, pry open space for new issues, and then echo these
demands back into the domestic arena.”).
9. Implicit in this discussion is the understanding—and limitation—that TANs require
international and domestic political will in order to give the boomerang pattern full effect. When
the agendas fail to align, TANs are constrained in their ability to affect state behavior on their own
terms.
10. During a violent military coup in Argentina in 1976, thousands of political prisoners
“disappeared” as a result of secret kidnappings, detentions, and executions. Almost immediately,
Argentine domestic organizations began to mobilize and form networks with foreign contacts.
Members of Argentine NGOs met with American and European human rights organizations and
solicited funding from private foundations. Amnesty International published a report denouncing the abuses of the junta regime as a deliberate government policy. The result was the unified
denunciation of the Argentine government by the United States, France, Italy, and Sweden. In
1978, the United States went even farther to withdraw all military and economic aid from Argentina. Confronted with this international human rights censure, the Argentine government authorized a visit by the Inter-American Commission on Human Rights, and “disappearances” as an
instrument of state policy began to drop off. See ACTIVISTS BEYOND BORDERS, supra note 5, at 107.
11. See Laura A. Dickinson, The Dance of Complementarity: Relationships Among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia, in ACCOUNTABILITY
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Part II provides a brief history of TANs operating in their traditional
capacity in East Timor, exploring the ways in which TANs spread
awareness of Indonesian brutality during the occupation of East Timor
and surrounding the 1999 referendum for independence. Part III
assesses the domestic and international efforts at accountability that
emerged after international condemnation of Indonesia’s actions. It
discusses how, despite impressive numbers of investigations and indictments, the accountability processes ultimately fell short, extending
only to middle- and lower-level officials and not to the leaders most
responsible for the violence. Part IV then addresses the question of
TANs in the aftermath of mass violence. It proposes three interrelated
ways in which TANs can work to close the gap in accountability in
East Timor: by (1) engaging in capacity building and domestic legal
development, (2) participating in domestic legal proceedings, and
(3) maintaining external and internal communications. The section
argues that, even if the combination of these approaches is insufficient
to overcome the domestic government’s resistance to accountability in
the short-term, they pave the way for future action and ensure that, in
the meantime, East Timor’s legal institutions continue to develop.
II.
TRANSNATIONAL ADVOCACY NETWORKS IN THE CONTEXT OF
ONGOING MASS VIOLENCE
On August 30, 1999, the East Timorese population cast their votes in
a popular referendum offering independence from Indonesia. With
almost a 99 percent voter turnout, 78.5 percent of voters expressed
their pro-independence desire to break from Indonesian rule.12 This
referendum marked the first step toward eventual democratization, an
outcome made even more remarkable given East Timor’s long history
of foreign colonization and occupation. But achieving independence
came at an extraordinary cost. For such a small island, East Timor has
experienced heavy doses of mass violence leading up to and immediately following the 1999 referendum. The two stages of violence
FOR ATROCITIES, supra note 1, at 362 (“[I]t would be hard to imagine a context in which the
domestic criminal justice system would not be an important part of the response in a country
where mass atrocities took place or where perpetrators of mass atrocities live.”). Although this
Note focuses specifically on the pursuit of criminal accountability, it recognizes that other
mechanisms, such as truth and reconciliation commissions and public memory projects, have
been implemented in post-conflict societies and play an important role in societal healing.
12. See Petra Stockmann, Indonesia, in 3 ENCYCLOPEDIA OF HUMAN RIGHTS 33, 38 (David P.
Forsythe et al. eds, 2009); IAN MARTIN, SELF-DETERMINATION IN EAST TIMOR: THE UNITED NATIONS,
THE BALLOT, AND INTERNATIONAL INTERVENTION 11 (2001).
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illustrate the evolving role of transnational advocacy networks in
East Timor, and they provide a basis on which TANs may seek more
meaningful accountability for past atrocities.
A.
Building and Mobilizing the Networks
The first period of violence began with Indonesia’s invasion of East
Timor in 1975. While not directly relevant to this discussion, the tactics
used— extrajudicial killings, forced movement of populations, coerced
sterilization of women, rape, and imprisonment without legal redress13—
helped to create the context in which TANs began to mobilize and,
eventually, significantly shape the response. Against this backdrop of
increasing discontent and calls for independence among the East
Timorese, 1991 was a watershed year for TANs. On November 12,
members of the Indonesian Armed Forces (TNI) fired indiscriminately
on 2,000 civilians gathered at the Santa Cruz Cemetery in memory of a
pro-independence activist.14 At least 271 died on site, and hundreds
were forcibly disappeared soon afterward.15 Film footage of the unprovoked incident made its way out of East Timor and circulated
worldwide on television, sparking international outrage and rapid
response.16 Though the “Santa Cruz Massacre” was not the most
egregious example of Indonesian brutality, it became the symbol of the
East Timor struggle because, this time, it had a global audience.17 The
footage built on the information previously provided by the Catholic
Church in East Timor regarding Indonesian violence and boosted the
credibility of claims by transnational human rights organizations that
had not yet resonated with a large audience.18
Once the footage at Santa Cruz attracted international attention,
domestic structures in East Timor helped to propel the momentum
forward. The Catholic Church in East Timor, the only public institu-
13. Stephen McCloskey, Introduction: East Timor—From European to Third World Colonialism, in
THE EAST TIMOR QUESTION: THE STRUGGLE FOR INDEPENDENCE FROM INDONESIA 4 (Paul Hainsworth &
Stephen McCloskey eds., 2000).
14. See DAMIEN KINGSBURY, EAST TIMOR: THE PRICE OF LIBERTY 61 (2009).
15. Id.
16. See id. Within days, the Netherlands, Denmark and Canada had suspended aid; the U.S.
Congress and European Parliament had condemned Indonesia; and individuals and governments
around the world had called for investigations into Indonesian abuses. See MATTHEW JARDINE,
EAST TIMOR: GENOCIDE IN PARADISE 17 (2d ed. 1999).
17. See ANJA JETSCHKE, HUMAN RIGHTS AND STATE SECURITY: INDONESIA AND THE PHILIPPINES 141
(2011).
18. Id. at 137-38.
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tion that had survived the Indonesian occupation, served as an outspoken advocate for human rights throughout that period.19 An example of an unconventional TAN, the Church was instrumental in
generating a vast church network with the objective of finding a
negotiated solution for Timorese self-determination.20 By publicizing
the Indonesian treatment of the East Timorese in international forums, the Church operated in Keck and Sikkink’s classic boomerang
pattern, swerving around a restricted domestic situation, connecting
with a global network of churches and human rights organizations, and
finally bringing international pressure back onto the Indonesian government. In doing so, the Church became a “catalyst for opposition” to
Indonesia’s actions and a global voice for independence.21
B.
Networks Making the Struggle for Independence Transnational
East Timor’s second period of violence surrounded the 1999 referendum. The notice in January that the East Timorese would be given a
voice in determining their future had incited some early Indonesian
intimidation, but the full-fledged response did not occur until the
announcement of the pro-independence result on September 4. Over
a period of sixteen days, TNI soldiers and militias armed, funded,
trained, and directed by the TNI embarked on a retaliatory terror
campaign in which rape and kidnapping became systematized,22
thousands of civilians were extrajudicially killed or forcibly disappeared,23 and hundreds of thousands were driven from their homes.24
Furthermore, Indonesia officially denied the existence of these internally displaced persons and prohibited access to them by humanitarian
agencies, despite food and medicinal shortages.25 In all, the militias’
scorched-earth tactics destroyed between sixty and eighty percent of
East Timorese infrastructure, including all public and private buildings
19. See JARDINE, supra note 16, at 69.
20. Id.
21. JAMES DESHAW RAE, PEACEBUILDING AND TRANSITIONAL JUSTICE IN EAST TIMOR 50 (2009).
22. See Thanassis Cambanis, Trials for Timor: Dispensing Transitional Justice in Indonesian
Courtrooms Instead of International Tribunals, 11 J. PUB. & INT’L AFF. 87, 88 (2000).
23. See GEOFFREY ROBINSON, “IF YOU LEAVE US HERE, WE WILL DIE”: HOW GENOCIDE WAS
STOPPED IN EAST TIMOR 40 (2010).
24. See Cambanis, supra note 22, at 87; Suzanne Katzenstein, Note, Hybrid Tribunals: Searching
for Justice in East Timor, 16 HARV. HUM. RTS. J. 245, 249 (2003).
25. See MARTIN, supra note 12, at 45.
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along their path.26 It was only with the intervention of the UNmandated International Force in East Timor on September 20, led by
Australia, that the violence abated.27
This international on-the-ground response in 1999 and subsequent
UN involvement with nation-building demonstrated, in part, the evolving influence of TANs. Whereas TANs had before been a fledgling
movement struggling to attract international attention, they became a
more robust mechanism with the capacity to establish allies internationally and rebound international pressure back onto domestic governments. The increasing presence of domestic organizations such as the
HAK Association, founded in 1996, resulted in a wider spread of
information, greater cross-border solidarity, and improved coordination with allies around the globe.28 For example, the HAK Association
was instrumental in uncovering evidence of the abuses committed
during Indonesia’s colonial administration and military operations,
much of which was destroyed after the referendum. It made three
crucial discoveries: an army manual providing for training in terror,
assassination, kidnapping, and torture; an army telegram ordering the
preparation of an “evacuation plan” in the event that the East Timorese
voted for independence; and a military report recommending that
the destruction of East Timorese property accompany the evacuation
plan.29 In 2000, East Timor activists in the United States used this
evidence to bring a civil action under the Alien Tort Claims Act and the
Torture Victim Protection Act against Johny Lumintang, TNI Deputy
Chief of Staff in 1999, who had been identified as one of the four senior
officers most responsible for the systematic violence in East Timor.30
Although the District Court ultimately vacated the judgment against
26. See Impunity in Timor-Leste: Can the Serious Crimes Investigation Team Make a Difference?, INT’L
CTR. FOR TRANSITIONAL JUST., 8 (June 2010), http://www.ictj.org/sites/default/files/ICTJTimorLeste-Investigation-Team-2010-English.pdf.
27. The International Force in East Timor is considered among the UN’s most successful
peacekeeping operations. See Lynn H. Miller, East Timor, Collective Action, and Global Order, 14 TEMP.
INT’L & COMP. L.J. 89, 89 (2000).
28. See About Us, PERKUMPULAN HAK—THE HAK ASS’N, http://www.yayasanhak.minihub.org/
eng/aboutus.html (last visited Nov. 1, 2013).
29. See Hamish McDonald & Richard Tanter, Introduction, in MASTERS OF TERROR: INDONESIA’S
MILITARY AND VIOLENCE IN EAST TIMOR 5 (Richard Tanter et al. eds., 2006) [hereinafter MASTERS OF
TERROR].
30. See Richard Tanter, Practical Justice in Doe v. Lumintang: The Successful Use of Civil Remedies
Against ‘an Enemy of All Mankind’, in MASTERS OF TERROR, supra note 29, at 158.
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Lumintang for lack of personal jurisdiction due to improper service,31
the litigation highlighted the evidentiary contributions of the HAK
Association and demonstrated one way in which East Timorese domestic activism had transcended borders and resonated with allies in the
United States.
III.
IN PURSUIT OF ACCOUNTABILITY: DOMESTIC AND INTERNATIONAL
EFFORTS AT PROSECUTIONS
The combination of domestic advocacy and international involvement in East Timor resulted in the implementation of several criminal
accountability mechanisms. These efforts were notable in signaling an
attempt to move from impunity to accountability and to give a legal
voice to victims. However, the practical shortcomings of the efforts
outweighed their value in the abstract. As a result, a gap in accountability has emerged, such that the high-ranking officials most responsible
for orchestrating the post-referendum violence have evaded prosecution and responsibility for their actions. Meaningful accountability thus
remains in the distance, and a shadow of impunity looms.
A. Indonesian Human Rights Court: “Just One Percent Above a Joke” 32
Against the backdrop of mounting external pressures, Indonesia
established the Ad Hoc Human Rights Court in 2000, a domestic court
in which to prosecute TNI ranking officers for human rights violations
in East Timor.33 However, fundamental flaws and limitations on jurisdiction and procedure severely constrained the court in establishing an
accurate record of the conflict and in appropriately convicting TNI
defendants. The ad hoc trials have since been widely criticized as show,
or mock, trials.34
The court’s narrow jurisdiction was one problem. By limiting the
court’s jurisdiction to crimes committed during April and September
31. “The Court is well aware of the magnitude of the human rights violations documented in
Magistrate Judge Kay’s comprehensive opinion. The events in East Timor were a terrible tragedy.
It is with great regret that the Court concludes that basic principles of United States jurisprudence
compel the conclusion that [Defendant’s Motion to Set Aside Default Judgment must be
granted].” Doe v. Lumintang, No. 00-674(GK), at *13 (D.D.C. Nov. 9, 2004), appeal dismissed, No.
04-7212, 2005 WL 3789109, at *1 (D.C. Cir. July 11, 2005).
32. McDonald & Tanter, supra note 29, at 10.
33. See Suzannah Linton, Accounting for Atrocities in Indonesia, 10 SING. Y.B. INT’L L. 199, 207
(2006).
34. See Susanne Alldén, Internalising the Culture of Human Rights: Securing Women’s Rights in
Post-Conflict East Timor, 8 ASIA-PAC. J. ON HUM. RTS. & L. 1, 22 (2007).
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of 1999 in three main districts, Indonesia effectively ensured that
violations from other relevant months and in East Timor’s ten other
districts would escape investigation.35 The court also chose to investigate only middle- and junior-ranking officials, failing to indict the
high-ranking military officials most responsible for the development
and implementation of the policies in question.36 Granted, the accountability process in East Timor, discussed below, faced a similar
issue regarding its scope. However, unlike in East Timor, the Indonesian government had the option to bring high-level officials before
the court without overcoming the additional hurdle of negotiating
extradition with a foreign government.37 In dismissing this option, the
Indonesian government engaged in a deliberate strategy of selective
prosecution.
Furthermore, a number of procedural limitations plagued the Indonesian trials. Prosecutors often failed to use the wealth of documentary
and testimonial evidence available to them, displayed a general reluctance to pursue cases aggressively, and allowed the military and its
supporters to intimidate witnesses.38 The court’s eighteen indictments
ultimately resulted in twelve acquittals and six convictions, five of which
were later overturned on appeal.39 For these and other reasons, critics
have denounced the creation of the Human Rights Court as merely a
way to deflect pressures for accountability and to slow or derail the
momentum for an international process.40
B.
East Timorese Special Crimes Process
In East Timor, accountability efforts faced a different challenge.
East Timor after the referendum violence was an “empty shell.”41
There was no generally accepted body of law; no working teachers,
policemen, or doctors; and very little infrastructure.42 The state of the
35. See JOSEPH NEVINS, A NOT-SO-DISTANT HORROR: MASS VIOLENCE IN EAST TIMOR 162 (2005).
36. See McDonald & Tanter, supra note 29, at 7.
37. See infra Part III.B.
38. See McDonald & Tanter, supra note 29, at 8; NEVINS, supra note 35, at 162; ROBINSON, supra
note 23, at 212; Linton, supra note 33, at 219 (“The many well-documented failings of the
processes are essentially centered around stunning under-performance and calculated incompetence by the prosecution and reflect the continuing influence of the military in Indonesia . . . .”).
39. See McDonald & Tanter, supra note 29, at 8-9.
40. See ROBINSON, supra note 23, at 213.
41. James Traub, Inventing East Timor, 79 FOREIGN AFF. 74, 83 (2000).
42. See Peter Galbraith, The United Nations Transitional Authority in East Timor (UNTAET),
97 AM. SOC’Y INTL. L. PROC. 210, 211 (2003).
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legal profession was equally bleak: many Indonesian judges, attorneys,
and court staff had fled East Timor after the referendum, and the
seventy East Timorese with law degrees who remained had been unable
to practice law or gain practical experience under Indonesian rule.43
The UN Transitional Authority in East Timor (UNTAET) thus played a
crucial role in establishing internationally mandated courts in 2000.
UNTAET tasked the Serious Crimes Unit (SCU) and the Special
Panels for Serious Crimes (Special Panels) with conducting investigations, prosecutions, and judicial proceedings relevant to crimes against
humanity and other serious offenses committed in East Timor in
1999.44 The SCU and Special Panels significantly contributed to the
rule of law in East Timor; the Commission of Experts, appointed by the
UN Secretary General to review the judicial processes in East Timor,
found in 2005 that the serious crimes process “has ensured a notable
degree of accountability for those responsible for the crimes committed in 1999.”45 However, in the same report, the Experts concluded
that the serious crimes process had not yet achieved full accountability
of those bearing the greatest responsibility for planning or ordering
serious offenses, and that the East Timorese were frustrated over the
inability to bring justice to those outside the country’s jurisdiction.46
There are multiple reasons for the shortcomings in the serious
crimes process.47 One of the biggest challenges for the SCU and the
Special Panels was that they operated in the East Timorese capital,
while the majority of their subjects of investigation had returned to
Indonesia after the referendum violence. Pursuant to a 2000 Memorandum of Understanding between Indonesia and UNTAET, both parties
should have cooperated in legal, judicial, and human rights-related
matters—including the enforcement of arrest warrants and the transfer
43. See Traub, supra note 41, at 83.
44. See U.N. Secretary-General, Letter dated 24 June 2005 from the Secretary-General
addressed to the President of the Security Council, Annex II ¶¶ 38, 40, U.N. Doc. S/2005/458
(July 15, 2005) [hereinafter Commission of Experts].
45. Id. Annex I ¶ 8.
46. See id. Annex II ¶¶ 56-57. The frustration extends beyond the lay population. Even the
East Timorese judge on the Special Panel has voiced her concern: “‘I think this system is not fair. Is
it fair to prosecute the small Timorese and not the big ones who gave them orders?’” David Cohen,
Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future?, 61 ASIA PAC. ISSUES,
1, 3 (2002), available at http://www.eastwestcenter.org/sites/default/files/private/api061.pdf.
47. In addition to extradition issues discussed in this section, the serious crimes process also
suffered from limited resources and lack of domestic political will. See infra text accompanying
notes 109-10.
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of suspects.48 Indonesia, however, unilaterally refused to extradite
suspects to East Timor or to allow UNTAET investigators to question
suspects in Indonesia.49 As a result, 339 of the SCU’s 391 indicted
individuals fell outside the jurisdiction of East Timor and continue to
remain beyond reach.50
IV.
TRANSNATIONAL ADVOCACY NETWORKS IN THE AFTERMATH OF
MASS VIOLENCE
East Timor’s history of violence and efforts at accountability give
rise to two observations. First, there have been commendable international efforts in pursuing criminal accountability. In spite of the
obstacles facing the SCU and the Special Panels, these bodies investigated and adjudicated a formidable number of indictments in accordance with international legal standards.51 The SCU was also diligent in
preparing the “handover” process to East Timor, including translating
all key documents into the native language and drafting instructions
for future investigators.52 But even though post-conflict accountability
is bound to be selective, the experience in East Timor was one of
selectivity to the extreme. In letting the Indonesian “big fish” swim free
while pursuing only the East Timorese “small fish,” the skewed accountability process made it likely that a perception of bias would surround
the justice system, weakening the rule of law in East Timor.
In a new democracy, these elements of distrust can have real—and
potentially magnified— effects. For example, in May 2006, only one
year after the withdrawal of UN peacekeepers, rapidly escalating local
violence following a military dispute forced East Timor to declare a
48. See Commission of Experts, supra note 44, Annex II ¶ 80.
49. See id. Annex II ¶¶ 82, 85.
50. Id. Annex II ¶ 48. Indonesia has publicly announced its refusal to cooperate with the
extradition of Indonesian citizens and has refused to recognize the authority of the SCU to
prosecute suspects. In 2003, Foreign Minister Wirajuda declared that the SCU “is not at all an
international tribunal . . . . [T]hey don’t have international jurisdiction and for that matter legally
they don’t have the capacity to reach non-East Timorese.” ROBINSON, supra note 23, at 214.
51. See Commission of Experts, supra note 44, Annex II ¶¶ 48, 120. The SCU conducted
investigations and prepared indictments against those responsible for crimes against humanity
and other serious crimes. The Special Panels exercised exclusive jurisdiction over those crimes,
such as genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture. Id.
Annex II ¶¶ 38, 40.
52. See Etelle R. Higonnet, Restructuring Hybrid Courts: Local Empowerment and National
Criminal Justice Reform, 23 ARIZ. J. INT’L & COMP. L. 347, 378-79 (2006).
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state of emergency.53 Political violence in February 2008 again rocked
the small nation, when rebel soldiers fired at East Timor’s President
and Prime Minister, injuring the former.54 These recent acts of violence are one manifestation of domestic instability, where “[g]ang
warfare by groups loosely affiliated with pro- and anti-[rebel] forces
have only added to the sense of anarchy.”55 The implication is that a
public disregard for East Timor’s legal institutions remains in the wake
of the Special Crimes Process, warranting discussion on the relationship between meaningful accountability and rule of law.
The second observation stemming from East Timor’s efforts at
accountability is that TANs were a crucial driving factor behind the
mobilization of the international community around East Timor before and after the referendum violence. In swerving around the domestic blockages and disseminating information of Indonesian brutality to
the outside world, TANs helped to place the small island on the
agendas of major regional and international players like Australia and
the United States. But their relevance in the aftermath of the violence is
less clear. Little academic writing examines their involvement—real
and potential—in the East Timorese accountability process. What
emerges is an opportunity for new discussion on the relevance of TANs
after the violence has stopped.
The TANs approach may be particularly useful in light of the
shortcomings of other accountability efforts. Unlike the UN-mandated
processes, TANs are, at their core, domestically based, drawing their
membership from and framing their issues around the demands of
local communities. They are familiar with domestic culture and customs and are more likely to avoid the common challenges facing
foreign actors, such as lack of relatability, resentment, or the perception of an imposition of foreign norms.56 Moreover, even though TANs
begin with domestic actors, they also have long arms into many other
countries by virtue of their vast networks. TANs thus have access to
much information and knowledge, placing them in a prime position to
53. See JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS? BUILDING
RULE OF LAW AFTER MILITARY INTERVENTIONS 8 (2006) [hereinafter CAN MIGHT MAKE RIGHTS];
INT’L CRISIS GROUP, RESOLVING TIMOR-LESTE’S CRISIS 10-13 (2006), available at http://www.crisis
group.org⬃/media/Files/asia/south-east-asia/timor-leste/120_resolving_timor_lestes_crisis.pdf.
54. See AMNESTY INT’L, TIMOR-LESTE: JUSTICE DELAYED, JUSTICE DENIED 7 n.12 (2011) [hereinafter JUSTICE DELAYED], available at http://www.amnesty.org/en/library/asset/ASA57/003/2011/
en/95288a66-3b6e-4d8d-bac8-3fdb7f827e33/asa570032011en.pdf.
55. Hannah Beech, East Timor’s President Shot by Rebels, TIME (Feb. 11, 2008), http://
content.time.com/time/world/article/0,8599,1711834,00.html.
56. See Traub, supra note 41, at 84-85.
THE
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present, for example, international standards of justice in a way that
resonates with domestic audiences.
TANs can help to shape or further meaningful accountability in
post-conflict East Timor in three interrelated ways. First, TANs can
serve as educational resources in the areas of capacity building and
domestic legal development. Second, TANs can offer their services
to the actors involved with domestic legal proceedings, helping to
make accountability more cost-effective and to advance the rule of law.
Finally, TANs can continue to communicate internally and externally
about the 1999 referendum and its implications for East Timorese
society, keeping the violence and its victims in the public consciousness.
A.
1.
Educational Resources
Capacity Building
A legitimate and functioning judicial system that adheres to fair trial
standards like impartiality and due process is one of the most valuable
developments in a post-conflict society.57 In part, this is due to the
importance of demonstrating a norm of accountability as opposed to
perpetuating one of impunity. Holding perpetrators of mass violence
accountable for their actions, for example, chips away at the belief that
any person is above the law and reduces vigilante justice and individual
revenge.58 This in turn can strengthen the rule of law. But arriving
at this point is not easy in a post-conflict society. Specifically, the task
in East Timor was to build a country up from ashes. UNTAET laid
important foundations for the judicial system, especially through the
Special Panels, which placed two international judges alongside an East
Timorese judge. Through this structured exposure to international
law, domestic judges—and the lawyers who appeared before them—
acquired valuable and transferrable skills in working on complex
atrocity cases, which they can continue to apply in the domestic justice
system.59
In a similar fashion, TANs can mirror this experience by operating as
educational resources. This role is perhaps all the more important in
57. See CAN MIGHT MAKE RIGHTS, supra note 53, at 250; Elena Baylis, Reassessing the Role of
International Criminal Law: Rebuilding National Courts Through Transnational Networks, 50 B.C. L.
REV. 1, 83-84 (2009); William W. Burke-White, A Community of Courts: Toward a System of
International Criminal Law Enforcement, 24 MICH. J. INT’L L. 1, 63 (2002).
58. See CAN MIGHT MAKE RIGHTS, supra note 53, at 259.
59. See Jane E. Stromseth, The International Criminal Court and Justice on the Ground, 43 ARIZ.
ST. L.J. 427, 437 (2011).
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the void left by the conclusion of the Special Crimes Process. TANs in
East Timor have now established far-reaching networks abroad. By
tapping into the institutional knowledge of these networks, they can
collect, compile, and disseminate information on international law and
international standards of justice. Providing domestic judges and lawyers with these types of training and learning opportunities, whether
formal or informal, can help to shore up legal institutions and accelerate development. For one, it is beneficial to continue to expose judges
and lawyers to the nuances of adjudicating, prosecuting, or defending a
complex atrocity case. While serving on the Special Panels, Burundian
judge Sylver Ntukamazia disclosed that one of the East Timorese judges
had never before heard of “crimes against humanity.”60 It was through
the process of sharing and teaching on the bench that the judges
helped each other to understand and interpret international law.61
Although the Special Panels no longer operate in East Timor, TANs
can step in and pick up the cross-border learning from where it left off.
In the event that domestic courts one day prosecute the “big fish” for
their involvement with the referendum violence, prior trainings in and
exposure to international law will have better prepared the lawyers to
handle such cases legitimately and in a way that provides for more
meaningful accountability.
2.
Domestic Legal Development
The educational value of TANs also has relevance for domestic legal
development. Domestic legal development as used here covers both
legislation and legal education.
On the legislative front, TANs can again draw from the experiences
of their networks to give the domestic system insight into how judicial
systems function credibly elsewhere. Here, especially, working to achieve
change through domestic channels may prove more effective than
rigidly imposing foreign norms,62 even if such norms are the subject of discussion. Because TANs engage domestic actors in a dialogue
60. See Sarah M. Clanton, Comment, International Territorial Administration and the Emerging
Obligation to Prosecute, 41 TEX. INT’L L.J. 569, 589 (2006); Burke-White, supra note 57, at 64 (“I am
helping [the East Timorese judge] to understand and interpret international law. This was the
first time she had heard of crimes against humanity so we talked about that a lot together.”).
61. See Burke-White, supra note 57, at 64. The East Timorese judge, Maria Pereira, herself
commented, “I have learned a great deal from the two international judges. I was never a judge
before this and they have helped me think about particular arguments and principles.” Id.
62. See Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105
MICH. L. REV. 985, 999 (2007).
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with foreign allies, the dialogue takes on local flavor. The result is one
where local participants can experience a sense of ownership in having
contributed to the process and subtly shaped the contours of the norm
to their particular domestic circumstances. In managing this relationship, TANs increase the likelihood that an initially-foreign norm becomes more domestically palatable, both in substance and form.
One area ripe for potential legislative reform is gender violence.
From the beginning of the Indonesian occupation in 1975 through
1999, gender violence against women was rampant.63 Yet the Special
Panels, in grappling with “serious offenses,” failed to recognize genderbased violence as a serious human rights violation.64 Even when local
groups shared their information on gender violence with investigators,
there were no mechanisms to ensure follow-up on the allegations.65 As
a result, very few gender-based crimes appeared before the Special
Panels, and there has been only one conviction for rape as a crime
against humanity.66 A full exploration of women’s rights in East Timor
warrants separate discussion, but it is enough to suggest here that TANs
can play a role in promoting women’s rights domestically. For instance,
in the Democratic Republic of Congo, networks of NGOs, international
organizations, and domestic actors—in other words, TANs—successfully promoted legislation that reforms the laws against sexual violence
to include the broader range of sexual attacks committed during the
conflict.67 In East Timor, spearheading a similar initiative may fall to
established women’s advocacy groups, such as Fokupers, which has
experience working with the truth and reconciliation commission,68
and the Women’s Justice Unit of the Judicial System Monitoring
Programme, which evaluates women’s experiences in the justice system. Coordinating with international allies on such legislative development may ultimately lead to more comprehensive accountability and
bring justice to female victims of violence.69
63. Women experienced systematized rape in 1999, and rape, gang rape, and sexual slavery
during the occupation. See Alldén, supra note 34, at 11-12; Cambanis, supra note 22, at 88.
64. See Alldén, supra note 34, at 18.
65. See Galuh Wandita et al., Learning to Engender Reparations in Timor-Leste: Reaching Out to
Female Victims, in WHAT HAPPENED TO THE WOMEN? GENDER AND REPARATIONS FOR HUMAN RIGHTS
VIOLATIONS 285, 315 (Ruth Rubio-Marı́n ed., 2006).
66. See id. at 315-16.
67. See Baylis, supra note 57, at 57-58.
68. See Wandita, supra note 65, at 296.
69. These efforts have a reasonable prospect of success. In 2010, the East Timorese legislature passed a domestic violence law, combating a long history of domestic violence and social
stigma, on which the Judicial System Monitoring Programme has provided training. See Judicial
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TANs also have a role in improving the quality of legal education in
East Timor. Especially considering how few lawyers remained after the
referendum violence and how little practical experience they had,
there is a strong interest in cultivating current and future generations
of legal professionals. Some TANs have already stepped into this role.
The Asia Foundation, for example, has partnered with Stanford Law
School, USAID, and local organizations in creating textbooks on the
laws of East Timor, texts that previously were scarce to non-existent.70
This work is crucial because it provides both experienced lawyers and
young law students with clear and concise writing in three languages,
making the texts broadly accessible domestically and even internationally.71 But TANs can do much more to further legal education. Potential next steps include recruiting greater numbers of accomplished and
committed faculty, perhaps by appealing to networks abroad, and
establishing mentorship programs between students and local practitioners. Thinking back to capacity building, the ultimate goal is a welltrained legal profession equipped with the skills and knowledge to
handle sophisticated cases legitimately. Achieving this goal leaves open
the possibility that East Timor’s domestic courts may one day be the
forum for accountability proceedings relating to the 1999 violence.
B.
Participation in Domestic Proceedings
In tandem with legal capacity building and development, TANs can
gradually work toward greater accountability by partaking in and
contributing to domestic legal proceedings. Forms of participation
include public observations of the proceedings and investigative assistance for lawyers. The experience in the Democratic Republic of
Congo, where the UN peacekeeping force MONUC was intimately
System Monitoring Programme, Monitoring the Justice System in Timor Leste, in 2 HUMAN RIGHTS
EDUCATION IN ASIA-PACIFIC 97, 104 (Hurights Osaka ed., 2011), available at http://www.hurights.
or.jp/archives/asia-pacific/section1/HRE-APvol2.pdf. Additionally, on March 8, 2012, East Timor
celebrated International Women’s Day, recognizing achievements in implementing gendermainstreaming policies and strategies. See U.N. Secretary-General, Rep. of the Secretary-General on the
United Nations Integrated Mission in Timor-Leste (for the period from 7 January through 20 September 2012),
¶ 6, U.N. Doc. S/2012/765 (Oct. 15, 2012). These experiences illustrate that there is forward
movement in this area and should undergird the discussion over gender violence as a human
rights violation.
70. Strengthening Legal Education in Timor-Leste, THE ASIA FOUND. (Aug. 2011), http://asia
foundation.org/resources/pdfs/LegalEducationinTimorLeste.pdf.
71. Id.
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involved in the investigation and prosecution of international crimes,72
is illustrative. On the informational side, MONUC professionally gathered and analyzed data to produce evidence for use in criminal trials.73
To help strengthen the prosecution’s cases, MONUC investigators
also shared their factual discoveries with prosecutors and worked with
them on a daily basis.74 On the victim support side, MONUC investigators accompanied prosecutors during witness interviews and provided
security for victims and witnesses.75 MONUC demonstrates how actors
traditionally outside of the legal structure can nonetheless play an
important role in facilitating and furthering accountability. In
East Timor, TANs can work toward a similar purpose.
However, in East Timor, the path to more meaningful accountability
will not be as linear. Whereas MONUC was able to contribute to the
prosecution of international crimes in real time, TANs in East Timor
will be stepping in after the conclusion of the SCU and Special Panels.
Thus, even though the SCU indicted significant numbers of individuals
for their involvement in the referendum violence, the work of TANs
will not operate directly in support of those earlier cases. Instead, TANs
can make two main contributions to the domestic legal system: reducing costs and advancing the rule of law.
1.
Reducing Costs
First, TANs can help to make prosecutions more cost-effective.
Because they work directly with East Timorese on the ground, domestic
organizations may be able to tap into existing trust relationships and
gather witness testimony and other key evidence that prosecutors and
formal investigators have less access to. This may especially be true in
cases of gender violence.76 TANs can also mobilize local communities
around potential witnesses, providing them with expansive support
networks that could mean the difference between testifying and not
testifying in court. By building the beginnings of these relationships
between the local population and actors in the formal justice system,
TANs can turn positive interactions into future cooperation and greater
72. See Baylis, supra note 57, at 54.
73. Id.
74. Id. at 55.
75. Id.
76. See Alldén, supra note 34, at 15 (“A special gender investigation was established during
2002 by the Deputy General Prosecutor for Serious Crimes, Siri Frigaard, but it was concluded that
little could be done since few women were willing to testify in court. Sexual violence is marked by
such stigma that many are afraid to come forward to talk about what happened to them . . . .”).
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trust. Thus, their participation in the proceedings does not come into
tension with or usurp the responsibilities of the formal legal roles.
Rather than directly assuming the investigative or other responsibilities
of prosecutors, TANs may instead offer support in their areas of
strength: generating local buy-in and relationships. The task then shifts
to the formal actors to make the most of these opportunities. Ultimately, by making prosecutions more cost-effective in these small ways,
TANs can allow for more efficient and purposeful use of East Timor’s
limited judicial resources.
2.
Advancing the Rule of Law
By engaging local community members in the legal process, TANs
can also help to promote the rule of law in East Timor. One major
criticism of the earlier accountability attempts is that they did not
sufficiently engage the East Timorese, resulting in a lack of domestic
ownership over the process.77 Furthermore, the inability of the accountability efforts to cover those most responsible for planning and
implementing the referendum violence has created frustration among
the East Timorese and arguably eroded perceptions of the value of
accountability and fair justice in a society.78 This attitude, especially
in a developing nation, is dangerous. If the public cannot trust that
the domestic legal institution rejects previous patterns of abuse and
impunity and embraces fair justice, then the rule of law begins to
disintegrate as individuals turn to alternate measures, such as personal
violence.79 Thus, “[c]ombating a legacy of weak, politicized or corrupt
judicial institutions is critical if citizens are to have any confidence that
those who commit atrocities in the future will be held responsible.”80
Post-conflict East Timor can benefit from a strengthened rule of law,
77. See Padraig McAuliffe, Hybrid Tribunals at Ten: How International Criminal Justice’s Golden
Child Became an Orphan, 7 J. INT’L L. & INT’L REL. 1, 37 (2011) (“In East Timor’s atmosphere of
alternating Governmental indifference and hostility, international actors took control of all major
units and marginalized Timorese involvement. Initially, there were no plans to integrate Timorese
professionals or to leave a legacy of prosecutorial competence . . . . As one-time international
defence mentor Caitlin Reiger put it, ‘[t]hey feel that [the tribunal] has nothing to do with
them.’”).
78. See Commission of Experts, supra note 44, Annex I ¶¶ 9-10; cf. CAN MIGHT MAKE RIGHTS,
supra note 53, at 260.
79. See CAN MIGHT MAKE RIGHTS, supra note 53, at 250, 254.
80. Jane E. Stromseth, Introduction: Goals and Challenges in the Pursuit of Accountability, in
ACCOUNTABILITY FOR ATROCITIES, supra note 1, at 11 (explaining that the common key goals of
accountability—justice, reconciliation, deterrence, and prevention—are frequently part of a
larger struggle to establish or rebuild the rule of law domestically).
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shored up by meaningful accountability for past violence. In 2011,
Amnesty International reported to the UN Universal Periodic Review
that, in East Timor, “[t]he failure to rebuild the justice system and to
bring to justice those responsible for past human rights violations has
contributed to an environment where there is no strong deterrent to
political violence and human rights violations.”81 In 2012, Amnesty
International noted that levels of domestic violence remained high and
that allegations of ill-treatment and excessive use of force by security
forces continued.82 However, local participation in domestic legal
proceedings can boost public understanding of the justice system as it
further develops. As discussed previously, such participation can take
different forms. For example, coordinated public observations of legal
proceedings and the provision of support services to judges, prosecutors, and other formal justice actors are two ways in which TANs and
their members come directly into contact with the justice system. This
personal insight into how prosecutions proceed and how cases are
adjudicated can add to increased confidence in accountability processes, especially as the system in East Timor endeavors to comply with
international standards of justice.83 Of course, current advocates in
domestic organizations are likely to be those who already believe in the
power of the courts; it is through their initial participation in the legal
process that they can reach out to and similarly persuade members of
the larger community. Generating widespread participation creates the
potential for positive experiences that can elevate the public’s sense of
ownership and acceptance of accountability, ultimately strengthening
the rule of law.84
81. JUSTICE DELAYED, supra note 54, at 7.
82. See Timor-Leste: Annual Report 2012 Extract, AMNESTY INT’L, 1 (May 24, 2012), available at
http://www.amnesty.org/en/library/asset/ASA57/005/2012/en/e6746439-ba80-4f7a-b0ff-996
bdb351741/asa570052012en.pdf; see also David Cohen, “Hybrid” Justice in East Timor, Sierra Leone,
and Cambodia: “Lessons Learned” and Prospects for the Future, 43 STAN. J. INT’L L. 1, 25 (2007)
[hereinafter “Hybrid” Justice] (“It is not far-fetched to conclude that the general lack of respect for
the rule of law, due process, and fair trial standards manifested by the Timorese government and
its U.N. supporters in their indifference to egregious problems in both the “hybrid” and domestic
justice systems has played a role in the decision of citizen and military groups to take the law into
their own hands in recent months. Governments that do not respect the law cannot expect that
their citizens will do otherwise.”).
83. U.N. S.C. Rep. of the Security Council Mission to Timor-Leste, Nov. 3-6, 2012, ¶ 24, U.N.
Doc. S/2012/889 (Nov. 28, 2012).
84. For an argument that accountability processes can help to build the rule of law when they
demonstrate a norm of fair accountability and include meaningful efforts at domestic capacitybuilding, see CAN MIGHT MAKE RIGHTS, supra note 53, at 249-309.
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There is also a spillover effect to the issue of accountability for the
referendum violence. As the domestic justice system becomes more
robust and as more East Timorese believe in the possibility of fair
accountability, domestic calls for a reversal of the government’s current
position on Indonesian accountability will intensify. To be sure, bringing about a change in national policy will be challenging, as the current
priorities of the East Timorese leadership represent the new blockages
between domestic organizations and the state.85 However, this is precisely where TANs can exercise their influence. With an expanded base
of local supporters, domestic advocates for high-level accountability
have greater leverage and credibility in arguing that the issue remains
relevant for many East Timorese. In so framing the discussion, the
organizations and their transnational networks can come closer to
achieving the standard expressed by the UN Secretary General in
August 2012: “The United Nations position on [prosecution] is clear
and persistent: All the perpetrators of crimes against humanity and war
crimes must be brought to justice . . . . [P]olitical stability cannot be
sustainable when there is no justice for [these crimes].”86 With the
appropriate international response, TANs open up the possibility of a
boomerang effect in the post-violence era.
C.
External and Internal Communication: Keeping East Timor Relevant
The third facet of engaging TANs in the aftermath of mass violence
reflects their traditional advocacy function. These domestic organizations and their transnational counterparts, at core, work to keep
international crimes in the public consciousness and on the agendas of
national governments.87 By following and sharing developments in
domestic and international laws, they establish contacts with countries
both affected and unaffected by conflict, forming the basis for more
robust transnational collaboration.88 Already, some organizations in
East Timor have incorporated this cross-border communication into
their mission statements. La’o Hamutuk is one example. Established
in 2000, La’o Hamutuk monitors and reports on development in
East Timor in order to improve cooperation and solidarity between the
85. See infra Part IV.D for a more in-depth discussion of the challenges that remain for TANs.
86. Secretary-General’s Press Conference with President of Timor-Leste, SECRETARY-GEN. BAN KI-MOON
(Aug. 15, 2012), http://www.un.org/sg/offthecuff/?nid⫽2461.
87. See Turner, supra note 62, at 989.
88. See id. at 1002.
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international community and the East Timorese.89 In November 2012,
for instance, La’o Hamutuk issued its analysis on the Security Council
Debates on East Timor between 1999 and 2012. It charted the frequency with which Security Council members mentioned terms like
“impunity,” “rule of law,” and “accountability,” noting that all three
have received less attention in recent debates.90 Specifically, mention
of accountability and impunity peaked in October 2010, at six times per
hour.91 But more recently, mention of accountability dropped to three
times per hour, and impunity to zero times.92 La’o Hamutuk seized this
opportunity to write to the Security Council and reinforce East Timor’s
relationships with the world:
[We] hope that you will continue to seek ways for the international community ‘to guarantee lasting respect for and the
enforcement of international justice,’ including for crimes
committed before the International Criminal Court became
effective in 2002 . . . . Please do not let our nation pass from
your thoughts, even if it is no longer on the Council’s agenda.93
The letter indicates that, even though East Timor “no longer needs
international peacekeeping forces,”94 there is still a role for the international community in East Timor’s struggle to overcome its long history
of colonization, foreign occupation, and violence.
Similarly, the Judicial System Monitoring Programme (JSMP) has
built and maintained relationships between East Timor and the international community. Established in 2001 to monitor the Special Panels in
East Timor and the Ad Hoc Human Rights Court in Indonesia, JSMP
has since broadened its scope more generally to support and advance
the rule of law and human rights.95 Its outreach programs, for example, have made its work accessible to different international audiences. In 2004, JSMP issued a joint report with Amnesty International,
89. La’o Hamutuk Mission Statement, LA’O HAMUTUK, http://www.laohamutuk.org/mission.
html (last visited May 10, 2013).
90. Security Council Debates on Timor-Leste: 1999-2012, LA’O HAMUTUK (Nov. 4, 2012), http://
www.laohamutuk.org/Justice/SecurityCouncilDebatesNov12.pdf.
91. Id.
92. See id.
93. Letter from La’o Hamutuk to United Nations Security Council 4, 6 (Nov. 4, 2012)
(internal citations omitted), available at http://www.laohamutuk.org/Justice/LHUNSC4
Nov2012en.pdf.
94. Id. at 4.
95. See Judicial System Monitoring Programme, supra note 69, at 97.
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calling for constructive discussions on accountability for human rights
violations. In prescribing the way forward, the organizations targeted
various international and national actors. On the international front,
JSMP and Amnesty International recommended that the Security
Council provide continued support for East Timor’s criminal justice
system and apply pressure on Indonesia to cooperate with the accountability process.96 They also recommended that the UN Commission on
Human Rights demonstrate its commitment to ending impunity by
strongly condemning the ad hoc trials in Indonesia.97 Although these
recommendations ultimately did not yield the desired results of universal cooperation with human rights investigations and the accountability
of those responsible,98 they have contributed to a continued international interest in East Timor, reflected in monetary support from
various nations and international organizations.99
JSMP has also prioritized internal communication. In the same 2004
report, JSMP and Amnesty International called on the East Timorese
government to end impunity, reminding the leadership of its duty to
bring to justice perpetrators of crimes under international law.100
Specifically, they recommended efforts to ensure sufficient funding for
accountability processes and cooperation with other states attempting
to pursue accountability.101 To date, the East Timorese leadership has
maintained its position of interdependence and reconciliation with
Indonesia.102 However, the work of organizations such as JSMP inevitably applies pressures on the government from within, whether realized
immediately or in the future. Furthermore, JSMP’s outreach programs
for local communities have placed a premium on the concepts of
accountability and rule of law. Its efforts to explain judicial processes
96. AMNESTY INT’L & JUDICIAL SYS. MONITORING PROGRAMME, JUSTICE FOR TIMOR-LESTE: THE
WAY FORWARD 60-61 (2004) [hereinafter JUSTICE FOR TIMOR-LESTE], available at http://www.
amnesty.org/en/library/asset/ASA21/006/2004/en/c0488a40-d62b-11dd-ab95-a13b602c0642/
asa210062004en.pdf.
97. Id. at 61.
98. See id. at 2.
99. Australia, Finland, Norway, the United Nations Democracy Fund (UNDEF), and UNICEF
are donors. See JUDICIAL SYSTEM MONITORING PROGRAMME, http://jsmp.tl/en/ (last visited May 10,
2013). As of January 15, 2013, JSMP has received $817,587 in grants from the Norwegian Embassy
and UNDEF through 2015. See Judicial System Monitoring Program Receives $817,587 in Grants, EAST
TIMOR L. & JUST. BULL. (Jan. 17, 2013), http://easttimorlegal.blogspot.com/2013/01/judicialsystem-monitoring-program.html.
100. JUSTICE FOR TIMOR-LESTE, supra note 96, at 63.
101. Id.
102. See infra Part IV.D.
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and civil and political rights meaningfully engage the domestic population, creating the potential for a ripple effect in the demand for
accountability and fair justice going forward.103 Because TANs operate
most effectively with an active civil society, this type of internal advocacy
should remain a key part of their strategy to keep past atrocities
relevant internationally and domestically.
D.
Challenges for TANs
While TANs can and should work to close the gap in accountability
in East Timor, there are limitations to this approach. Most notably,
TANs require both international and domestic political will in order
for their influence to come full circle. Thus, the biggest challenge for
TANs in East Timor will be to work around the current attitude
disfavoring criminal accountability. Even if TANs themselves are unable to overcome the geo-strategic considerations that inform the
policy-making of East Timor and key international players, they are in a
position to influence local attitudes regarding accountability.
Internationally, high-level UN officials have issued strong statements
in support of human rights accountability in East Timor.104 However,
as the global memory of the conflict fades and post-9/11 calculations
regarding terrorism take on new prominence, the priorities of the
international community have shifted.105 U.S. policy toward Indonesia,
the world’s most populous Muslim nation, is illustrative. In 1999, the
United States passed a law prohibiting military assistance to Indonesia
unless the Indonesian government and armed forces demonstrated
their commitment to accountability for the East Timor violence by
taking “effective measures to bring to justice” those who had participated in human rights abuses.106 Despite the absence of such measures,
however, the United States has since resumed direct military aid to its
key partner in the fight against Islamist extremists.107
103. See Stromseth, supra note 59, at 444; Judicial System Monitoring Programme, supra note
69, at 100.
104. See supra note 86 and accompanying text.
105. See Dickinson, supra note 11, at 365.
106. See Consolidated Appropriations Act 2000, Pub. L. No. 106-113, § 589, 113 Stat. 1501
(1999).
107. See Indonesia Gets $1.56B in U.S. Military Aid, UNITED PRESS INT’L (Feb. 13, 2013),
http://www.upi.com/Top_News/World-News/2013/02/13/Indonesia-gets-156B-in-US-militaryaid/UPI-39321360767598/; John Pomfret, U.S. Floats Plan to Lift Ban on Training Indonesia’s
Kopassus Unit, WASH. POST, Mar. 3, 2010, at A8; Todd S. Purdum, U.S. to Resume Aid to Train
Indonesia’s Military Forces, N.Y. TIMES, Aug. 3, 2002, at A3.
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Domestically, TANs seeking to close the gap in accountability also
face an uphill battle. The East Timorese government has adopted a
policy of reconciliation and friendship toward Indonesia,108 best reflected in its 2003 refusal to follow up on an arrest warrant against
General Wiranto, Commander-in-Chief of the TNI during the violence.109 To the leadership, criminal accountability is a backwardlooking process that impedes attempts to further economic development, resolve domestic instability, and elevate East Timor’s regional
status.
But the pursuit of meaningful accountability is backward-looking
only in the sense that it gives official recognition to present memories
of a past conflict. Realistically, for many survivors, memories of their
experiences persist regardless of the government’s efforts to eschew
accountability in favor of reconciliation.110 More fundamentally, accountability efforts represent an altogether forward-looking process in
their effects on East Timorese victims and society generally. The link
between accountability and rule of law suggests that weak accountability efforts detract from the public’s confidence in the rule of law. Weak
rule of law is consequently domestically destabilizing. By contrast,
shoring up the quality and credibility of accountability processes shows
the East Timorese that rule of law is a positive development and an
effective social mechanism. Accountability becomes a way of “moving
forward by looking backward.”111
Nonetheless, TANs are unlikely to convince the domestic leadership
to prioritize accountability over reconciliation in the near future.
Instead, where their strength lies is in creating the building blocks
108. See CAN MIGHT MAKE RIGHTS, supra note 53, at 281; Burke-White, supra note 57, at 49
(“Given East Timor’s isolation and relative poverty, it has few means at its disposal to alter the
political balance and decrease its sensitivity vis-à-vis Indonesia. East Timorese President Gusmao
has been swayed by this combined sensitivity and vulnerability, defining the East Timorese
national interest as one of ‘guaranteeing stability along the border and of strengthening our
cooperation with Indonesia.’”) (citations omitted).
109. See CAN MIGHT MAKE RIGHTS, supra note 53, at 281; “Hybrid” Justice, supra note 82, at 10.
110. See Phillip Rapoza, Hybrid Criminal Tribunals and the Concept of Ownership: Who Owns the
Process?, 21 AM. U. INT’L L. REV. 525, 529-30 (2006) (“As [the widow of one victim] described it, the
two men who killed her husband still live in her village. They are both former members of the
Indonesian-backed militia and she sees them every Friday on market day. It bothers her that they
seem to grin at her mockingly because . . . they know they will never be indicted or prosecuted.
But what really bothers her is that one of the two men continues to wear the jacket that her
husband wore on the day he died. ‘What should I do,’ she asked, ‘when justice still needs to be
done?’”).
111. See CAN MIGHT MAKE RIGHTS, supra note 53, at 249.
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upon which future accountability efforts can rest. The three interconnected approaches outlined above all require time to produce their
intended results; it will take time for TANs to involve themselves
intimately in domestic legal proceedings and development, just as it
will take time for the East Timorese to fully embrace the justice system
and coalesce around demands for accountability. This crucial period of
domestic engagement represents much of the groundwork laid by
TANs in anticipation of future accountability efforts. Thus, even if
geo-strategic considerations triumph today, that urgency will fade over
time. Having cultivated the appropriate domestic conditions in the
meantime, TANs in East Timor can then call upon their international
allies to mobilize around high-level accountability in East Timor,
enabling the boomerang pattern to take full effect.
V.
CONCLUSION
Criminal accountability for past atrocities in East Timor remains
relevant today, even over a decade after the referendum. For many
survivors and witnesses of the 1999 violence, the government’s current
policy of reconciliation with Indonesia erodes confidence in fair justice
and is in direct tension with the healing process. These are potentially
destabilizing elements within a new nation that only recently came
under self-rule after centuries of foreign colonization and occupation.
For the perpetrators of the referendum violence, the policy signals a
lingering culture of impunity and detracts from efforts to deter future
crimes.112 The current situation in West Papua, an Indonesian province, evokes images of a modern East Timorese conflict. In West Papua,
where a fierce separatist movement has led a decades-long fight for
independence, TNI officers have engaged in enforced disappearances,
torture, and extrajudicial killings.113 Perhaps in part due to the absence
of accountability for crimes committed in East Timor, military person-
112. On May 20, 2008, the East Timorese President commuted the sentences of nine
individuals who had been convicted by the Special Panels for murder, assault, and sexual offenses
as crimes against humanity during the period surrounding the 1999 referendum. In August 2009,
the Timorese government acquiesced with Indonesia’s request for the release of indicted militia
leader Martenus Bere, who had been charged by the SCU for civilian extermination, torture,
enforced disappearance, deportation, and persecution as crimes against humanity in 1999. As of
October 2011, only one of the eighty-six individuals found guilty of serious crimes committed in
1999 remains in prison. JUSTICE DELAYED, supra note 54, at 6.
113. See FRANCISCANS INT’L, HUMAN RIGHTS IN PAPUA, 25-29 (2011), available at http://
www.franciscansinternational.org/fileadmin/docs/West_Papua_Report_2010-11/Human_Rights_
in_Papua_Report_2010-2011.pdf.
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nel expect that they will not be prosecuted for rights violations elsewhere. Indeed, few have been held accountable for abuses committed
against West Papuans, and the government has even recognized perpetrators as national heroes defending against separatism.114
Meaningful accountability for the East Timorese violence thus takes
on new significance. The domestic government, however, has made
clear that, at this point in time, it will not launch such an ambitious
project. In light of these blockages in the domestic policy-making
apparatus, transnational advocacy networks emerge as an alternate
means of pursuing accountability. Traditionally recognized for mobilizing international support in the context of ongoing human rights
violations, TANs also have an opportunity to contribute meaningfully
in the aftermath of the violence. In East Timor specifically, TANs can
work to close the gap in accountability in three interconnected ways.
Through capacity building and domestic legal development, TANs can
connect with East Timorese lawyers, providing them with training in
international law and subtly shaping international norms of justice into
domestically palatable measures. Through direct participation in domestic legal proceedings, TANs can offer valuable access to testimonial
evidence, reducing the costs of accountability. Such participation can
also engage community members in the justice system, facilitating
greater understanding of and respect for the rule of law. Robust rule of
law in East Timor then has the potential to intensify domestic—and,
correspondingly through the networks, international—pressures for
more meaningful accountability. Finally, through continued internal
and external advocacy, TANs can expand their existing networks and
mobilize additional support for accountability in East Timor.
Tying these three approaches together is the understanding that the
path toward high-level accountability will not be direct or yield immediate results. As much as TANs can influence domestic policy through
international calls to action, their effects are ultimately limited by a
dependence on both international and domestic political will. But this
is not to say that TANs must stand idly by as a culture of impunity grows.
Rather, they can seize the opportunity to lay the groundwork for future
action. By establishing early on the foundations upon which future
accountability efforts will rest, TANs help to ensure that, when the time
comes, justice can be achieved for the victims of past violence as swiftly
and legitimately as possible.
114. Id. at 8.
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