BY JON LAND
Chances are increasingly remote that the Indonesian legal system will bring to justice those responsible for war crimes and human rights abuses committed before, during and after East Timor's August 1999 referendum. Any trial that does take place will be little more than a whitewash.
As the political crisis within Indonesia deepens, the very criminals that coordinated the carnage in East Timor — the top leaders of the Indonesian military and its intelligence apparatus — are steadily regaining their former dominance.
The intensifying military repression in Aceh and West Papua by the Indonesian military, the TNI, and the renewed attacks on pro-democratic and progressive forces campaigning against Golkar, the TNI's traditional ally in parliament, does not bode well for those seeking justice for what was done in East Timor.
Nor does the staunch opposition by the civilian elite in Jakarta, including President Abdurrahman Wahid, to the trial of any significant leader of the TNI. Wahid has already promised that if former TNI chief General Wiranto does go on trial and is found guilty, he will be pardoned.
While Wiranto was questioned by the Commission for Investigation of Violations of Human Rights in East Timor, the official body established by the Indonesian Human Rights Commission (KPP-HAM), he was not one of the 23 named by KPP-HAM in September as subjects for further investigation.
Neither is General Zacky Anwar Makarim, the former head of TNI intelligence, who is widely believed to have created the pro-Jakarta militia gangs which terrorised East Timor.
The list of 23 under investigation (now 22 following the death of one of the militia suspects) includes former local military commanders Adam Damiri and Tono Suratman and former police chief Timbul Silaen, plus the notorious militia leader Eurico Guterres. The remainder are lower-ranking officers or militia leaders.
None of their superiors have been named. Just to make sure of the safety of the army's top leaders, the Indonesian parliament took the pre-emptive constitutional amendment in August which prohibits retroactivity in prosecutions and restricts command officers' culpability for crimes against humanity.
The KPP-HAM has also faced continuous obstacles in taking the investigation to trial. The named TNI officers have a team of well-paid and influential lawyers who have used technical and obscure legal arguments to block proceedings. There have been several protests opposing the investigation outside the Attorney-General's department, as well as bomb threats.
On March 22, the Jakarta Post reported that the house of representatives had finally approved the creation of an ad-hoc court to try human rights abuses in East Timor in 1999 and during the Tanjung Priok killings of 1984.
Deputy speaker Soetardjo Soerjogoeritno stressed that the cases needed to be solved immediately, "in order to prevent intervention by outsiders".
The "intervention" Soerjogoeritno and others are opposed to is the creation of an international war crimes tribunal for East Timor, which the United Nations has hinted it may establish if the Indonesian legal system fails in its duties.
Investigations by the United Nations Transitional Administration in East Timor's Serious Crimes Investigation Unit have also been seriously hampered by the intransigence of the Indonesian government.
The Wahid government has repeatedly reneged on an April memorandum agreeing to provide UNTAET information and access to those suspected of human rights abuses. It has refused an extradition order issued by UNTAET last October for Guterres and has similarly ignored the indictments of other suspects issued in December.
UNTAET investigators were able to meet with Guterres in January and March, though he declined to answer questions relating to murders he is known or suspected to have been involved in. The meeting with the UNTAET investigators, as with the minor charges Guterres has faced in Indonesian courts over the possession of weapons, was portrayed as "persecution" of a real "patriot" in much of the Indonesian media.
The establishment of an international war crimes tribunal for East Timor faces opposition from Indonesia's main Western allies also, who have repeatedly stressed their preference for Indonesia to conduct its own trials.
The United States, Britain and Australia have all expressed an interest in renewing and improving ties with the TNI — something which would be very hard to justify if an international war crimes tribunal went ahead.
These governments also fear that an international war cimes tribunal may not be restricted to just the direct events of 1999.
If established, why should such a tribunal not investigate other massacres, like that at Santa Cruz cemetery in 1991 or the slaughter of more than 200 people from the village of Kraras in 1983?
Even more threateningly for Western powers, if such a tribunal was established, why should it not investigate the actions of those states who condoned, aided and abetted Indonesia's illegal occupation of East Timor, and who have consistently lied about the extent of their involvement?