The National Authority for Prosecution...The National Authority for Prosecution Of Organised and Other Serious Crime The result of the poll •More than 450.000 (of about 750 000)

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


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!


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 Hybrid Courts

• Courts of mixed composition and

jurisdiction

• Encompassing both national and

international aspects

• Usually operating within the jurisdiction

where the crimes occurred


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


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



• April 1974 – Flower revolution in Portugal

• President Caetana is resigning

• Political parties allowed in the colonies

• August 1975 civil war in East Timor


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



• 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 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


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,”


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 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 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 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”.


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 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 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 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 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 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


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 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?


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


Resources

• The Court

• The Serious Crimes Unit

• The Defence

• Supporting resources – human, assets,

means


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 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?


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 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 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?


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 investigation

• In February 2002 teams stationned in the

districts

• Infrastructure

• Translations

• Of 1300 known murders only 40%

investigated at closure of the SCU


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 indictments

• Genocide?

• War crimes?

• Crimes against humanity?


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 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 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 ”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 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 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?


Collaboration of the

international society• During the investigation

• Afther the issue of the ”Most serious

indictments”

• Today


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 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 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 commission for thruth and

friendship

• East Timorese representatives

• Indonesian representatives

• The purpose


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


Today

• Amnesty

• Pardons

• Continued investigation

• International arrest warrants


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.

Documents

The National Authority for Prosecution...The National Authority for Prosecution Of Organised and Other Serious Crime The result of the poll •More than 450.000 (of about 750 000)