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The National Authority for Prosecution Of Organised and Other Serious Crime
The National Authority for Prosecution Of Organised and Other Serious Crime
Challenges in post conflict areas
case studies
Siri S. Frigaard
Chief Public Prosecutor
UiO – 24. March 2011
The National Authority for Prosecution Of Organised and Other Serious Crime
Dilemmas in post conflict areas
– countries in transition• Peace versus justice?
– The preference of the people?
– The preference of the ”rulers”?
– The preference of the international society?
– No peace without justice?
– What is justice?
– The fight against impunity!
The National Authority for Prosecution Of Organised and Other Serious Crime
International Criminal Law
in practice • How to fight impunity
– National courts
– Hybrid courts
– International tribunals
– National courts in third countries
– Truth and reconciliation commisssions
– Advantages, disadvantages
The National Authority for Prosecution Of Organised and Other Serious Crime
The Hybrid Courts
• Courts of mixed composition and
jurisdiction
• Encompassing both national and
international aspects
• Usually operating within the jurisdiction
where the crimes occurred
The National Authority for Prosecution Of Organised and Other Serious Crime
The rationale for creating
hybrids varies• Lack of capacity or resources at the national
level
• Fears of bias or lack of independence in the legal system
• Contributing to the right to justice and an effective remedy
• Contributing to ending a culture of impunity
• Contributing to reconciliation
The National Authority for Prosecution Of Organised and Other Serious Crime
East Timor - history
• 1512 – the Portuguese arrive in Timor
• 1641 – the Portuguese in control of the Eastern
part of Timor
• 1710 – the first Portuguese Governor appointed
• 1914 – the Hague Court of Arbitration decides
on the frontiers between East and West Timor
The National Authority for Prosecution Of Organised and Other Serious Crime
East Timor - history
• April 1974 – Flower revolution in Portugal
• President Caetana is resigning
• Political parties allowed in the colonies
• August 1975 civil war in East Timor
The National Authority for Prosecution Of Organised and Other Serious Crime
East Timor history
• 1975 - Indonesia invades East Timor on December 7.
• 1999 – President Habibi in Indonesia decides on poll on independence or autonomy with Indonesia
• 1999 – 5. May agreement: Indonesia responsible for security and UN for the tecnical arrangements of the poll
The National Authority for Prosecution Of Organised and Other Serious Crime
East Timor - history
• 1999 – The poll took place on August 30.
• 1999 – The result was announced on September 4.
• 1999 – Interfet arrived on September 20.
• 1999 – Security Council decision of October 25.
• 1999 - From October 25th – Protectorate of the UN
• 2002 - Independence declared May 1.
The National Authority for Prosecution Of Organised and Other Serious Crime
The result of the poll• More than 450.000 (of about 750 000) people
voted
• 78,5% voted for independence
• Tactic of scaring peope to vote ”correctly”
• The tactic of the burnt earth after the annoncement
• 80% of infrastructure destroyed
• More than 200.000 forced to leave for West Timor
• People killed or dissapeared
The National Authority for Prosecution Of Organised and Other Serious Crime
Security Council Resolution 1272
of 25 October 1999• ”Decides to establish, in accordance with the
report of the Secretary-General, a United Nations Transitional administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice,”
The National Authority for Prosecution Of Organised and Other Serious Crime
Res. 1272 cont.
”Condems all violence and acts in
support of violence in East Timor,
calls for their immediate end and
demands that those responsible
for such violence be brought to
justice.”
The National Authority for Prosecution Of Organised and Other Serious Crime
The Commission of Enquiry on
East Timor• Recommended:
• ”The UN should establish an international human rights tribunal consisting of judges appointed by the UN. Preferably with the participation of members from East Timor and Indonesia. The tribunal would sit in Indonesia, East Timor or any other relevant territory to receive the complaints and to try and sentence those accused…..”
The National Authority for Prosecution Of Organised and Other Serious Crime
The Result
• The Ad Hoc Human Rights Court in Jakarta (to prosecute suspects staying in Indonesia)– Indonesian judges and university professors
• The Hybrid court in East Timor:– The Special Panels within the Dili District Court in
East Timor
– The Special Panel within the Court of Appeal in East Timor
The National Authority for Prosecution Of Organised and Other Serious Crime
The Statement of the Secretary-
General (Kofi Annan)in connection with the establishment of the Ad Hoc HR Tribunal in Indonesia:
”- the main thing is to send a message that crimes against humanity and such gross violations against human rights, will not be allowed to stand and that those responsible will be held accountable”.
The National Authority for Prosecution Of Organised and Other Serious Crime
Kofi Annan cont.
”If Indonesia pursues such
prosecution, there will be no need
for the Council or the UN to set up
another tribunal to compete with
one set up by the Indonesian
government that is going to do
exactly the same thing.”
The National Authority for Prosecution Of Organised and Other Serious Crime
The Ad Hoc Human Rights Court in
Jakarta• Komnas Ham (human righst organisation in
Indonesia) reported that 21 should be indicted
• 19 were indicted
• 2 were convicted
• 1 aquitted in the Court of Appeal
• 1 aquitted in the Supreme Court
• Intimidation and witness protection
The National Authority for Prosecution Of Organised and Other Serious Crime
The Hybrid court in East Timor
• Each panel consisting of two international judges and one national judge
• International judges employed by the UN and on UN contracts
• National judges on national contracts
• Before Independence appointed by the SRSG – after - by the President
The National Authority for Prosecution Of Organised and Other Serious Crime
The Serious Crime Unit
• Established June 2000 by SRSG
• Charged with the investigation and
prosecution of crimes falling within the
jurisdiction of the Special Panels
The National Authority for Prosecution Of Organised and Other Serious Crime
The Jurisdiction of the Special
Panels
• UNTAET regulation no. 2000/11 on the
Organisation of Courts in East Timor, and reg.
no 200/15
– Exclusive jurisdiction for genocide, war crimes and
crimes against humanity
– Exclusive jurisdiction for murder, sexual offences and
torture in the period 1. January to 25. October 1999
The National Authority for Prosecution Of Organised and Other Serious Crime
The Staffing• 1 international Deputy General Prosecutor
(DGPSCU)
• 8 international prosecutors
• 12 international investigators
• Uniformed police officers (UNPOL)
• International supporting staff
• Local staff
• A total of about 134 employees at the peak
The National Authority for Prosecution Of Organised and Other Serious Crime
Challenges• Mandate
• A strategig plan and resources
• Prosecution strategy
• The investigation
• The hearings
• Legal tools and interpretation of the laws
• Will and collaboration of the international society
• Ownership of the process
• Outreach
The National Authority for Prosecution Of Organised and Other Serious Crime
The Mandate of the Special Panels
• Offences committed between January and 25.
October 1999?
• Offences committed in 1974/75?
• Offences committed in the period from 1974 till
January 1999?
• The mandate of the Serious Crimes Unit?
The National Authority for Prosecution Of Organised and Other Serious Crime
A Strategic Plan
• A system like the one in East Timor requires a plan before it is set into motion
• It is vital to analyse what is needed of resources, human and logistics, what qualifications are needed, and when the different players have to be operational
• The time frame has to be known
The National Authority for Prosecution Of Organised and Other Serious Crime
Resources
• The Court
• The Serious Crimes Unit
• The Defence
• Supporting resources – human, assets,
means
The National Authority for Prosecution Of Organised and Other Serious Crime
The Outreach
• The importance of informing people of what to expect from the process
• The importance of keeping the people and victims updated of the development
• The importance of giving the people and the victims the impression that they are included in the process and not excluded
• A transparent process
The National Authority for Prosecution Of Organised and Other Serious Crime
The Prosecution Strategy
• Focus on high command?
• Focus on perpetrators residing within the
jurisdiction regardless of their role in the
overall structure?
• Focus on only offenses constituting core
international crimes?
The National Authority for Prosecution Of Organised and Other Serious Crime
Dilemmas
• Perpetrators arrested by the police when crossing the boarder and suspected of having committed ordinary crimes?
• Perpetrators considered as ”children” being arrested by the police?
• Criteria for selection and prioritizing cases?
The National Authority for Prosecution Of Organised and Other Serious Crime
The legal tools before
independence
• Substantive law
– The UN regulations
– The regulations in force prior to 25. October if in conformity with the principles of International law
– Principles of International law
• Prosedural law
The National Authority for Prosecution Of Organised and Other Serious Crime
The legal tools after independence
• The Constitution of the Republic of Timor Leste
• International law
• East Timorese regulations
• UNTAET regulations
• Subsidiary laws (laws applied before 1999) if not contrary to the Constitution and the principles contained therein– Portugues, Indonesian?
The National Authority for Prosecution Of Organised and Other Serious Crime
Interpretation of the laws
• The International laws take precedence over
laws applied in East Timor, in the way that if
East Timorese regulations are in contradiction
with international laws, they are invalid
• East Timorese regulations should be interpreted
according to international laws and their
principles
The National Authority for Prosecution Of Organised and Other Serious Crime
The investigation
• In February 2002 teams stationned in the
districts
• Infrastructure
• Translations
• Of 1300 known murders only 40%
investigated at closure of the SCU
The National Authority for Prosecution Of Organised and Other Serious Crime
The court hearings
• Judges from different countries with different experience or no experience
• The salaries
• The time off of the judges
• Difficult administration of the court and lack of clercs
• The interpreters
• Many different languages
The National Authority for Prosecution Of Organised and Other Serious Crime
The indictments
• Genocide?
• War crimes?
• Crimes against humanity?
The National Authority for Prosecution Of Organised and Other Serious Crime
The Wiranto Indictment
• General in the Indonesian Army responsible for
the security in East Timor during 1999
• Indictment for Crimes Against Humanity
• Command responsibility
• Murder, persecutions, destructions, forced
transfer of Timorese, etc.
• No rapes
The National Authority for Prosecution Of Organised and Other Serious Crime
The Wiranto Indictment
• All parties involved were informed about the indictment after it was filed in court - but before it became public
• The Timor-Leste Government and the President gave public statements against the indictment stating it was an international process and not a national one, and that the UN had to fullfill its mandate
The National Authority for Prosecution Of Organised and Other Serious Crime
The Will to Prosecute
• President proposed amnesty law but it was rejected by Parliament
• Lack of support of indictments concerning Indonesian High command from the Government and from the UN
• No will to put pressure on Indonesia to extradite alleged perpetrators
• Request for an International tribunal
The National Authority for Prosecution Of Organised and Other Serious Crime
The ”Ownership” of the Process
• After independence the DGPSCU reported to the Prosecutor General of Timor-Leste
• The PGTL reported to the President
• The SC Process was established by the UN and all the employees were on UN contracts
• The allocation of funds came from UN
The National Authority for Prosecution Of Organised and Other Serious Crime
The UN Statement
• The UN spokesman in NY referred to the authority of the PGTL:
• ”While indictments are prepared by international staff, they are issued under legal authority of the Timorese Prosecutor General, the UN does not have any legal authority to issue indictments.”
The National Authority for Prosecution Of Organised and Other Serious Crime
The UN Statement cont.
• ”We hope you in future will say East Timor
indicts, and not that the UN indicts.”
• What sort of a signal do these statements
give to the public, the victims?
The National Authority for Prosecution Of Organised and Other Serious Crime
Collaboration of the
international society• During the investigation
• Afther the issue of the ”Most serious
indictments”
• Today
The National Authority for Prosecution Of Organised and Other Serious Crime
The Closing of the SCU
• Closed May 2005 (reopened for
investigation)
• 95 indictments filed
• 391 persons indicted (440 indictees)
• 309 of 391 outside the jurisdiction
The National Authority for Prosecution Of Organised and Other Serious Crime
The result cont.
• 284 arrest warrants have been requested
• 280 arrest warrants have been issued by
the court
• 71 red notices processed through Interpol
• 83 perpetrators have been convicted in
court
• 4 have been acquitted
The National Authority for Prosecution Of Organised and Other Serious Crime
The Commission for Truth and
Reconciliation
• Justice and peace – hand in hand
• The Truth seeking
• The Reconciliation strategy
• The Impunity gap
• The balance between victim and
perpetrator
The National Authority for Prosecution Of Organised and Other Serious Crime
The commission for thruth and
friendship
• East Timorese representatives
• Indonesian representatives
• The purpose
The National Authority for Prosecution Of Organised and Other Serious Crime
The statement of Secretary
General of UN – Kofi Annan
• The main thing is to send a message that crimes against humanity and such gross violations against human rights, will not be allowed to stand and that those responsible will be held accountable
The National Authority for Prosecution Of Organised and Other Serious Crime
Today
• Amnesty
• Pardons
• Continued investigation
• International arrest warrants
The National Authority for Prosecution Of Organised and Other Serious Crime
Conclusion
• The political will lacking both in East Timor, Indonesia and also in my opinion in the international society.
• The indictments are not withdrawn, but there are neither capacity nor knowledge in East Timor to handle such a case if a person is apprehended.
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