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Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor

Published online by Cambridge University Press:  27 February 2017

Carsten Stahn*
Affiliation:
Max Planck Institute for Comparative Public Law and International Law, Heidelberg

Extract

The population of East Timor has been subjected to severe human rights violations, in both the near and the more distant past.1 Indonesia invaded the former Portuguese colony and non-self-governing territory under Chapter XI of the United Nations Charter on December 7,1975, after a period of civil turmoil and political instability marked by parallel claims to independence and calls for integration into Indonesia.2 The Indonesian invasion brought with it massive violations of human rights and the laws of war.3 Military clashes between the independence movement FRETILIN (Frente Revolucionaria do Timor Leste Independente) and Indonesia continued on a large scale until 1979, though rebellion against Indonesian rule generally persisted for the whole period of Indonesian occupation. Beginning in January 1999, pro-Indonesian militia, supported by Indonesian security forces.

Type
Current Developments
Copyright
Copyright © American Society of International Law 2001

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References

1 On the history of East Timor, see James, Dunn, Timor: A People Betrayed (1996)Google Scholar John, Taylor, East Timor: The Price of Freedom (1999)Google Scholar.

2 For an analysis of these events, see Roger, S. Clark, East Timor, Indonesia and the International Community, 14 Temp. Int’l & Comp. L.J.. 75, (2000)Google Scholar; Peter, Lawrence, East Timor, in 2 Encyclopedia Of Public International Law 3 (Rudolf, Bernhardt ed., 1995)Google Scholar.

3 It is estimated that East Timor lost 10–30% of its population during the first four years after Indonesia’s invasion. James, Dunn, The Timor Affair in International Perspective, In East Timor at the Crossroads: The Forging of a Nation 59, 67 (Peter, Carey & Carter Bentley, G. eds., 1995)Google Scholar.

4 On the atrocities in East Timor, see Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726–S/2000/59; see also James, Dunn, Crimes Against Humanity in East Timor, January to October 1999: Their Nature and Causes (Feb. 14, 2001)Google Scholar, at <http://www.smh.com.au/news/0104/28/etimor0l.html>

5 On UNTAET, see generally Geneviève, Burdeau, Quelle Voie pour le Conseil de sécurité apres l‘affaire du Kosovo ? Le ban d’essai du Timor-Oriental, 2 Int’l L.F. 32 (2000)Google Scholar; Jarat, Chopra, The UN’s Kingdom of East Timor, 42 Survival 27 (2000)Google Scholar; Suzannah, Linton, Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor, 25 Melb. U. L. Rev. 122 (2001)Google Scholar; Mohamed, Othman, Peacekeeping Operations in Asia: Justice and UNTAET, 3 Int’l L.F. 114 (2001)Google Scholar; Matthias, Ruffert, The Administration of Kosovo andEast Timor by the International Community, 50 Int’l & Comp. L.Q. 555 (2001)Google Scholar; Christoph, Schreuer, East Timor andthe United Nations, 2 Int’l L.F. 18 (2000)Google Scholar; Carsten, Stahn, The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis, 2001 Max Planck Y. B. UN L. 105 Google Scholar; Hansjörg, Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AJIL 46 (2001)Google Scholar.

6 The term “political conflicts in East Timor” has been widely defined to encompass “armed and non-armed struggles and discord related to the sovereignty and political status of East Timor, the organisation or governance of East Timor, the illegal Indonesian invasion and occupation of East Timor, or any combination of the foregoing.” See UNTAET Regulation 2001/10, On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor §l(j) (July 13, 2001). All UNTAET regulations are available online at <http://www.un.org/peace/etimor/untaetR/UntaetR.htm>.

7 Supra note 6.

8 SC Res. 1272, para. 1 (Oct. 25, 1999), 39 ILM 240 (2000) (endowing UNTAET with “overall responsibility for the administration of East Timor” and the “exercise [of] all legislative and executive authority, including the administration of justice”).

9 UNTAET Regulation 2000/15, On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (June 6, 2000).

10 See UNTAET Regulation 2001/10, supra note 6, pt. III.

11 See id., pt. IV.

12 For a survey, see Priscilla, B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001)Google Scholar. See also Priscilla, B. Hayner, Fifteen Truth Commissions—1974 to 1994: A Comparative Study, 16 Hum. Rts. Q.. 597, (1994)Google Scholar [hereinafter Hayner, Commissions]; Margaret, Popkin & Naomi, Roht-Arriaza, Truth as Justice: Investigatory Commissions in Latin America, in 1 Transitional Justice 262 (Neil, J. Kritz ed., 1995)Google Scholar.

13 See Mark, Ensalaco, Truth Commissions for Chile and El Salvador: A Report and Assessment, 16 Hum. Rts. Q. 656 (1994)Google Scholar.

14 See Jaime, Malamud-Goti, Punishing Human Rights Abuses in Fledgling Democracies: The Case of Argentina, in Impunity and Human Rights in International Law and Practice 161 (Naomi, Roht-Arriaza ed., 1995)Google Scholar [hereinafter Impunity and Human Rights].

15 See Thomas, Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat’l L. 497 (1994)Google Scholar.

16 On the work of the Historical Clarification Commission in Guatemala, see Christian, Tomuschat, Between National and International Law: Guatemala’s Historical Clarification Commission, in Liber Amicorum Günther Jaenicke 991 (Volkmar, Götz, Peter, Selmer, & Rüdiger, Wolfrum eds., 1998)Google Scholar.

17 See generally Kenneth, Christie, The South African Truth Commission (2000)Google Scholar John, Dugard, Reconciliation and Justice: The South African Experience, in The Future of International Human Rights 399 (Burns, H. Weston ed., 1999)Google Scholar; Lorna, McGregor, Individual Accountability in South Africa: Cultural Optimum or Political Facade? 95 AJIL 32 (2001)Google Scholar; Tapio, Puurunen, The Committee on Amnesty of the South African Truth and Reconciliation Commission—A New Model for Conflict Resolutitin? 9 Finnish Y. B. Int’l L. 297 (1998)Google Scholar.

18 See Audrey, R. Chapman & Patrick, Ball, The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa and Guatemala, 23 Hum. Rts. Q. 1, 3 (2001)Google Scholar; see also Richard, Goldstone, Justice as a Tool for Peacemaking: Truth Commissions and International Tribunals, 28 N.Y.U. J. Int’l L. & Pol. 485, 492 (1996)Google Scholar.

19 On the naming of perpetrators and the issue of reparation, see generally Hayner, Unspeakable Truths, supra note 12, at 107, 314. The Truth Commission in El Salvador was the first commission to identify perpetrators publicly. Michael, P. Scharf, The Case for a Permanent International Truth Commission, 7 Duke J. Comp. & Int’l. L. 375,. 385, (1997)Google Scholar.

20 Naomi, Roht-Arriaza, Truth Commissions and Amnesties in Latin America: The Second Generation, 92 ASIL Prog. 313, 314 (1998)Google Scholar; see also John, Dugard, Dealing with Crimes of a Past Regime: Is Amnesty Still an Option? 12 Leiden J. Int’l L. 1002, 1005 (1999)Google Scholar.

21 Case 10.287, Inter-Am. C.H.R. 88, OEA/Ser.L/V/II.83, doc.14 corr.1 (1992–93); Case 10.029, Inter-Am. C.H.R. 154, OEA/Ser.L/V/II.83, doc. 14 (1992–93); Case 10.147, Inter-Am. C.H.R. 41, OEA/Ser.L/V/II.83, doc. 14 (1992–93); Case 10.843, Inter-Am. C.H.R. 156, Report No. 36/96 (1996).

22 See Naomi, Roht-Arriaza & Lauren, Gibson, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843 (1998)Google Scholar.

23 The Guatemala Peace Agreements, Dec. 29, 1996, Guat.-Unidad Revolucionaria Nacional Guatemalteca, 36 ILM 258 (1997), provided that no amnesty can be granted for crimes punishable under international treaty law ratified by Guatemala. Subsequently, the Law of National Reconciliation expressly exempted the crimes of genocide, torture, and forced disappearances from the amnesty granted to the governmental and guerrilla forces. Law of National Reconciliation, Decree No. 145–96, Dec. 18, 1996, Art. 8, reprinted in William, Ramírez, Amnistía Y Constitución, Leyde Reconciliación Nacional 33 (1998)Google Scholar. On the amnesty in Guatemala, see generally Rainer, Grote, The United Nations and the Establishment of a New Model of Governance for Central America: The Case of Guatemala, 1998 Max Planck Y.B.UN L. 239, 266 Google Scholar; Margaret, Popkin, Guatemala’s National Reconciliation Law: Combating Impunity or Continuing It? 24 Revista IIDH [Instituto Internacional de Derechos Humanos] 173 (1996)Google Scholar.

As for Sierra Leone, Article 10 of the Agreement Between the Government of Sierra Leone and the United Nations on the Establishment of a Special Court for Sierra Leone makes clear that the amnesty granted under Article IX, “Absolute and free pardon, ” of the Lomé Peace Agreement, July 7, 1999, Sierra Leone-Revolutionary United Front of Sierra Leone, reprinted in UN Doc. S/1999/777, annex, does not apply to the international crimes under the court’s jurisdiction. Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, para. 22, at <http://www.un.org/Docs/sc/reports/2000/915e.pdf> [hereinafter Report of the Secretary–General]. For the Agreement on establishing the Special Court, see id., annex. See also Micaela, Frulli, The Special Court for Sierra Leone: Some Preliminary Comments, 11 Eur. J. Int’l L. 859, 868 (2000)Google Scholar; Daryl, A. Mundis, New Mechanisms for the Enforcement of International Humanitarian Law, 95 AJIL 934,. 937, (2001)Google Scholar. See generally Robert, Cryer, A ‘Special Court’ for Sierra Leone? 50 Int’l & Comp. L.Q. 435 (2001)Google Scholar; Abdul, Tejan-Cole, The Special Court for Sierra Leone: Conceptual Concerns and Alternatives, 1 Afr. Hum. Rts. L.J. 107 (2001)Google Scholar. On the Lome Agreement, see Avril, J. M. McDonald, Sierra Leone’s Uneasy Peace: The Amnesties Granted in the Lome Peace Agreement and the United Nations’ Dilemma, Humanitäres Völkerrecht, No. 1, 2000, at 11 Google Scholar.

24 The amnesty was validated by the South African Constitutional Court in Azanian Peoples Org. v. President of Republic of South Africa, 1996 (8) BCLR 1015 (CC), 1996 SACLR LEXIS *20. For a critical appraisal, see John, Dugard, Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question, 13 S. Afr. J. Hum. Rts. 258 (1997)Google Scholar.

25 According to section 21 of the Promotion of National Unity and Reconciliation Act of 1995, amnesty cannot be granted to persons who do not make a “full disclosure of all the relevant facts” relating to their acts. The Act, Act 34 of 1995, is reprinted in Puurunen, supra note 17, at 143.

26 Report of the Secretary-General, supra note 23, para. 22.

27 But see Hayner, Commissions, supra note 12, at 610 (stating earlier: “Most importantly, as a general rule, truth commissions do not have prosecutory powers such as the power to subpoena witnesses or bring cases to trial.”).

28 See Truth and Reconciliation Commission Act 2000, §8(1) (g), at <http://www.sierra-leone.org/trc.html>. Failure to respond to a summons or subpoena issued by the commission “shall be deemed equivalent to contempt of court and may, at the discretion of the Commission, be referred to the High Court for trial and punishment.” W.§8(2).

29 Scharf, supra note 19, at 386; see also Draft Statute for a Permanent International Commission of Inquiry, Art. 19, quoted in id. at 403.

30 On the function and the composition of the cabinet, see UNTAET Regulation 2000/23, On the Establishment of the Cabinet of the Transitional Government in East Timor (July 14, 2000).

31 Report of the High Commissioner for Human Rights on the Situation of Human Rights in East Timor, UN Doc. E/CN.4/2001/37, a« <http://www.unhchr.ch/data.htm>; see also UNTAET, Daily Briefing, Dec. 13, 2000, at <http://www.un.org/peace/etimor/news/dec00.htm>.

32 The United Nations not only played an active role in negotiating the peace accords between the Salvadoran government and the Farabundo Martí National Liberation Front, which included the mandate of the commission, but also appointed the commissioners. Hayner, Commissions, supra note 12, at 628. However, the commission as such was not a UN body.

33 The United Nations mediated the negotiations that led to the agreement with Haiti’s military leaders in July 1993, allowing President Aristide to return while granting amnesty to the regime in power. For a closer analysis, see Michael, P. Scharf, Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti? 31 Tex. Int’l L. J. 1, 6 (1996)Google Scholar.

34 See Grote, supra note 23, at 241.

35 See McDonald, supra note 23, at 12.

36 By SC Res. 1272, supra note 8.

37 See Dugard, supra note 20, at 1012. On the attempt to draft guidelines for the operation of truth commissions, see Louis Joinet, Report on the Question of Impunity of Perpetrators of Human Rights Violations, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1; Priscilla, B. Hayner, International Guidelines for the Location and Operation of Truth Commissions: A Preliminary Proposal, 59 Law & Contemp. Probs.. 173, (1996)Google Scholar; Neil, J. Kritz, Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights, id. at 127 Google Scholar.

38 See UNTAET Regulation 2000/23, supra note 30; UNTAET Regulation 2000/24, On the Establishment of a National Council (July 14, 2000).

39 For an analysis of the governmental structure in East Timor under the auspices of UNTAET, see Stahn, supra note 5, at 153; Othman, supra note 5, at 123.

40 See Stahn, supra note 5, at 140. On the concept of trusteeship with respect to the United Nations Transitional Administration in Kosovo, see Carsten, Stahn, International Territorial Administration in the Former Yugoslavia, 61 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 107, 132 (2001)Google Scholar.

41 See Regulation 2001/10, supra note 6, §3(h) (listing among the objectives of the commission “the reception and reintegration of individuals who have caused harm to their communities through the commission of minor criminal offences and other harmful acts”).

42 Id. §31.1.

43 Section 1 (m) of Regulation 2001/10 provides: “ ‘Serious criminal offence’ means an offence against the laws of East Timor as defined under Section 10.1 of UNTAET Regulation No. 2000/11 and Section 1.3 and Sections 4 through 9 of UNTAET Regulation No. 2000/15.”

44 For a survey of the jurisdiction of the international criminal court, see Mahnoush, H. Arsanjani, Reflections on the Jurisdiction and Trigger-Mechanism of the International Criminal Court, in Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos 57 (Herman, A. M. von Hebel, Johan, G. Lammers, & Jolien, Schukkingeds., 1999)Google Scholar. See also Andreas, Zimmermann, The Creation of a Permanent International Criminal Court, 1998 Max Plancky. B. UN L. 206 Google Scholar.

45 As defined by UNTAET Regulation 2000/15, supra note 9, §§4–6. For a comparison of UNTAET Regulation 2000/15 with the Rome Statute, see Linton, supra note 5, at 151.

46 As defined by UNTAET Regulation 2000/15, supra note 9, §7. On the definition of torture under UNTAET Regulation 2000/15, see Linton, supra note 5, at 166.

47 UNTAET Regulation 2000/15, supra note 9, §§1.3, 2, does not introduce a temporal limitation for the prosecution of crimes such as genocide, crimes against humanity, war crimes, and torture. See Linton, supra note 5, at 172. For serious sexual offenses and murder, Regulation 2000/15, §2.3, limits the exclusive jurisdiction of the panels within the District Court of Dili to offenses committed between January 1, 1999, and October 25, 1999.

48 UNTAET Regulation 2001/10, supranote §, §22.1.

49 See Promotion of National Unity and Reconciliation Act, supra note 25, Art. 20(3) (f). For the practice on amnesty, see Tapio Puurunen, The Committee on Amnesty of the Truth and Reconciliation Commission of South Africa 37 (2000).

50 See John, Dugard, Restorative Justice: International Law and the South African Model, in Transitional Justice and the Rule of Law in New Democracies 269 (James McAdams, A. ed., 1997)Google Scholar; Garth, Meintjes & Juan, E. Mendez, Reconciling Amnesties with Universal Jurisdiction, 2 Int’l L.F. 76,. 88, (2000)Google Scholar; Phenyo, Keiseng Rakate, Reconciling Amnesties with Universal Jurisdiction in South Africa—A Response to Garth Meintjes and Juan Méndez, 3 id. at 42 (2001)Google Scholar. See generally Carla, Edelenbos, Human Rights Violations: A Duty to Prosecute? 7 Leiden J. Int’l L. 5 (1994)Google Scholar; Diane, E. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J.. 2537, (1991)Google Scholar; Naomi, Roht–Arriaza, Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress, in Impunity and Human Rights, supra note 14, at 25 Google Scholar; Michael, P. Scharf, Justice Versus Peace, in The United States and the International Criminal Court 179 (Sarah, B. Sewall & Carl, Kaysen eds., 2000)Google Scholar.

51 See also Hayner, Unspeakable Truths, supra note 12, at 16. In practice, however, the difference in the roles of the judiciary and truth commissions has always been limited, in that truth telling is an important feature of criminal proceedings and the acknowledgment of having violated the law characterizes a form of restorative justice.

52 See Chapman & Ball, supra note 18, at 2; Hayner, Commissions, supra note 12, at 611.

53 On the “judicialisation” of the Committee on Amnesty, see Puurunen, supra note 49, at 63. On the relationship between the truth commission and South Africa’s legal system, see also Paul Lansing & Julie, C. King, South Africa J Truth and Reconciliation Commission: The Conflict Between Individual Justice and National Healing in the Post-Apartheid Age , 15 Ariz. J. Int’l & Comp. L. 753,. 767, (1998)Google Scholar.

54 See 5 The Truth and Reconciliation Commission of South Africa Report, ch. 3, at 114 (1998) [hereinafter TRC Report].

55 Id.

56 See UNTAET Regulation 2001/10, supra note 6, §§24.1, 27.5.

57 Id. §28.2. Moreover, any person who fails to fulfill his or her obligations undertaken in the act of reconciliation shall be “guilty of an offence and liable to a term of imprisonment not to exceed 1 year or a fine not to exceed $US 3,000, or both.” Id. §30.2.

58 Different standards apply, of course, within the framework of the Community Reconciliation Process, which is conditioned on the admission of responsibility by the applicants. In this case, applicants must both reveal their personal acts and answer questions relating to “the involvement of others in the acts disclosed, including, but not limited to, the identity of those who organised, planned, instigated, ordered, or participated in, the commission of such acts.” Refusal to provide such information may be regarded as a ground for terminating the reconciliation procedure. UNTAET Regulation 2001/10, supra note 6, §§27.3, 27.4.

59 This is clearly expressed in section 22.2 of Regulation 2001/10, which states:

Nothing in the present Regulation shall prejudice the exercise of the exclusive prosecutorial authority of the General Prosecutor and Deputy General Prosecutor for Serious Crimes under Section 14 of UNTAET Regulation No. 2000/16 nor the exclusive jurisdiction over serious criminal offences of the Serious Crimes Panel of judges established within the Dili District Court in accordance with Sections 1 and 2 of UNTAET Regulation No. 2000/15.

60 For further discussion, see Mundis, supra note 23; Linton, supra note 5.

61 Cambodia recently established extraordinary court chambers for the prosecution of crimes committed by th e former leaders of the Khmer Rouge. Moreover, the United Nations and Sierra Leone concluded an agreement on the creation of a mixed international/domestic court to prosecute persons responsible for atrocities in the Sierra Leonean civil war. See Mundis, supra note 23. These developments obviously had an impact on the solution adopted by UNTAET. The commission of inquiry on the atrocities committed in East Timor had recommended the establishment of an international criminal tribunal for East Timor. Report of the International Commission of Inquiry on East Timor to the Secretary-General, supra note 4, para. 153. The Secretary-General, however, took the view that preference should be given to the domestic courts, in order to strengthen UNTAET’s capacities in th is field. See Letter of 31 January 2000 from the Secretary-General to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, UN Doc. A/54/726–S/2000/59.

62 UNTAET Regulation 2000/15, supra note 9, §22.

63 Id. §3.

64 Id. §1.1.

65 This is perhaps the greatest weakness of the panels. In view of the Indonesian government’s refusal to hand over suspects to East Timor voluntarily and its subsequent creation of an ad hoc court to try human rights violations in East Timor, the panels with exclusive jurisdiction are not likely to be in a position to try many military leaders or civilians residing in Indonesia. The panels started to function in December 2000. However, cooperation with Indonesia proved to be a delicate issue. UNTAET requested assistance from the government in extraditing identified suspects at large in Indonesia, but the government would neither extradite suspects to East Timor nor allow UNTAET investigators to question suspects in Indonesia. Instead, it decided to pursue its own strategy. On March 21, 2001, the Indonesian parliament formally adopted the Law on Human Rights Courts, No. 26/2000, lo prosecute human rights abuses related to the incidents in East Timor in 1999. Finally, on April 23, 2001, President Wahid enacted Presidential Decree 53/2001, establishing an ad hoc human rights court at the Jakarta District Court to try gross human rights violations committed in East Timor after the 1999 popular consultation. On both legal acts, see Othman, supra note 5, at 120.

66 See UNTAET Regulation 2000/15, supra note 9, §§8, 9. See also the critique by Linton, supra note 5, at 169–70, pointing out that international law has become more progressive in this area than the Indonesian Criminal Code.

67 See section 2.4 of Regulation 2000/15, which refers to section 3.1 of UNTAET Regulation 1999/1 (Nov. 27, 1999), declaring that Indonesian criminal law is applicable. Indonesian law provides that if a person commits a criminal offense abroad that can be judged by the law of the Republic of Indonesia, the Jakarta Court of Justice will be competent to judge the case. Kitab Undang-Undang Hukum Acara Pidana [Code of Criminal Procedure] §86, at <http://www.undang-undangindonesia.com/uu_pidana/kuhap/kuhap_index.htm> (in Indonesian). Moreover, this limitation was recendy confirmed by the Special Panel for Serious Crimes, which found that it did not have jurisdiction to try a rape committed in West Timor before October 25, 1999. See Prosecutor v. Kasa, Case 11/CG/2000 (Dist. Ct. Dili, Special Panel for Serious Crimes, May 5, 2001), at <http://www.jsmp.minihub.org/judgmentspdf>.

68 UNTAET Regulation 2000/15, supra note 9, §§4–6.

69 UNTAET Regulation 2001/10, supra note 6, §22.2 & sched. 1.

70 See UNTAET Regulation 2000/15, supra note 9, §5 (defining the threshold of crimes against humanity).

71 See id. §6.1(e)(v).

72 See id. §6.1(e)(iv).

73 UNTAET Regulation 2001/10, supra note 6, §2.2.

74 Id. §§3.1 (c), 13.1.

75 Id. §13.1 (d).

76 Id.§§3.1(e), 38.

77 Id. §13.2.

78 Similarly, the truth commissions in El Salvador, Guatemala, and South Africa investigated both the crimes committed by the government or the military and the abuses of their opponents.

79 UNTAET Regulation 2001/10, supra note 6, §4.

80 Id. §11.

81 Id. §§13.3, 14.1.

82 For the parallel powers of the truth commission in Sierra Leone, see the Sierra Leone Truth and Reconciliation Commission Act, supra note 28, §7. See also Michelle, Parlevliet, Truth Commissions in Africa: The Non–Case of Namibia and the Emerging Case of Sierra Leone, 2 Int’l L. F. 98, 106 (2000)Google Scholar.

83 UNTAET Regulation 2001/10, supranote 6, §14.1(c), (d).

84 Id. §15.

85 Id.§14(g), (h).

86 Id. §14(1).

87 Id. §22.2.

88 On the South African approach, see Meintjes & Mendez, supra note 50, at 90; McGregor, supra note 17, at 34.

89 But see the “collective amnesty” granted to thirty-seven leaders of the African National Congress by the Amnesty Committee of the South African Truth and Reconciliation Commission in its decision of November 28, 1997, 1 TRC Report, supra note 54, ch. 7, at 193. For an analysis, see McGregor, supra note 17, at 39.

90 On the criteria used in this context, see Promotion of National Unity and Reconciliation Act, supra note 25, §20(3).

91 See note 25 supra.

92 Section 23.1 of UNTAET Regulation 2001/10, supra note 6, makes the initiation of a reconciliation process dependent on “a full description of the relevant acts” and “an admission of responsibility for such acts.”

93 Id. §23.1(d).

94 The panel shall include between three and five members. Id. §26.1.

95 Id. §27.

96 Id. §27.7.

97 Id. §27.8.

98 Id. §28.2.

99 Truth and Reconciliation Commission Act, supra note 28, §7(2).

100 In postconflict Uganda, “local council courts” were givenjurisdiction to adjudicate disputes. Jennifer, Widner, Courts and Democracy in Postconflict Transitions: A Social Scientist’s Perspective on the African Case, 95 AJIL 64, 65 (2001)Google Scholar-.

101 On the creation of neighborhood courts by UNOSOM in Somalia, see id. at 66.

102 The law establishing the gacaca tribunals was enacted by the Rwandan parliament in February 2000. Jeremy, Sarkin, Promoting Justice, Truth and Reconciliation in Transitional Societies: Evaluating Rwanda’s Approach in the New Millennium of Using Community Based Gacaca Tribunals to Deal with the Past, 2 Int’l L. F. 112, 118 (2000)Google Scholar-.

103 On the ‘jurisdiction” of the gacaca tribunals, see Idi, T. Gaparayi, Justice and Social Reconstruction in the Aftermath of Genocide in Rwanda: An Evaluation of the Possible Role of the Gacaca Tribunals, 1 Afr. Hum. Rts. L.J. 78,. 83, (2001)Google Scholar.

104 See also the criticism by Sarkin, supra note 102, at 119; and Gaparayi, supra note 103, at 89. For a discussion of the reintegrative function of the gacaca tribunals, see Mark, A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis inRwanda, 75 N.Y.U. L. Rev. 1221,. 1263, (2000)Google Scholar.

105 UNTAET Regulation 2001/10, supra note 6, sched. 1.

106 Id., sched. 1, para. 1.

107 Reliance on superior orders, however, is not recognized as a ground excluding criminal responsibility for serious offenses under UNTAET Regulation 2000/15. UNTAET Regulation 2000/15, supra note 9, §21.

108 UNTAET Regulation 2001/10, supra note 6, sched. 1, para. 3.

109 See UNTAET Regulation 2000/16, On the Organization of the Public Prosecution Service in East Timor §14.4 (June 6, 2000).

110 UNTAET Regulation 2001/10, supra note 6, §24.6.

111 Id. §§ 27.5, 27.6.

112 Id. §27.9.

113 For a critical view of the South African approach with respect to the crime of apartheid, see Rakate, supra note 50, at 42. See also the criticism raised by Dugard, supra note 50, at 279.

114 The amnesty granted under the 1999 Lome Peace Agreement does not apply to international crimes. See supra note 23.

115 On the prosecution of crimes committed during the period of Democratic Kampuchea, see Mundis, supra note 23, at 939–42.

116 See, e.g., Neil J. Kritz & Jakob, Find, A Truth and Reconciliation Commission in Bosnia and Herzegovina: An Idea Whose Time Has Come, 3 Int’l L. F. 50 (2001)Google Scholar.

117 See Strohmeyer, supra note 5, at 55; Othman, supra note 5, at 121; see also Amnesty International, East Tlmor: Justice Past, Present and Future (AIIndexASA57/001/2001July27, 2001), at <http://web.amnesty.org/web/content.nsf/pages/gbrcountry+page>.

118 See UNTAET Press Releases (Sept. 14 & 19, 2001), at <http://www.un.org/peace/etimor/news/sep01.htm>.

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Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor
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Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor
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