Wearing his jacket: a feminist analysis of the serious crimes process in Timor-Leste.

• Author: Rimmer, Susan Harris

Abstract

This article aims to examine the gender jurisprudence of the serious crimes process in Timor-Leste. It focuses on whether the cases arising from the process delivered 'justice' for women and did justice to the experience of women in armed conflict. The article asks what 'justice judgments' the Timorese community have made about the trials; that is, whether the Special Panel's processes were accepted and understood in the general population. This examination sheds some light on the benefits, if any, that the existing framework of international law has provided for women engaged with transitional justice processes. This is judged by reference to the participation of women in the system and to any new international criminal jurisprudence, as well as by whether the process fairly represented the experience of women during the occupation and whether it added any material benefit to their lives in the independence period.

Introduction

In the Serious Crimes (Investigation] Unit [SCIU], we punish some militias who are stupid enough to come back. 1 also think that the UN [('United Nations')] is spending too much money on the Serious Crimes Unit. The lawyers there earn more than I earn as President. And there is no infrastructure for the judicial system in East Timor. We need a working competent, free and functioning judicial system, not only in Dili, but also in the country. I think the SCIU can be there for 100 years for all the stupid to come back across the border. In practical terms we don't see any benefit from this. (1) In June 2005, United States Judge Phillip Rapoza reflected on his two years of service on the Special Panels for Serious Crimes in Dili, the capital of Timor-Leste. He expressed particular regret about the situation of a woman he met in Maliana. Judge Rapoza recounted that the woman said she often saw the two men who killed her husband when she went to the local market. What bothered her more was that one man wore her late husband's jacket. Judge Rapoza stated, 'They knew that she knows that they will never be prosecuted'. (2)

The aim of this article is to explore the gender jurisprudence of the serious crimes process in Dili. The focus is on whether the cases delivered 'justice' for women, in the sense of whether they did justice to the experience of women in armed conflict. Christine Bell and Catherine O'Rourke propose that feminist theorists should focus on how transitional justice debates help or hinder broader projects of securing material gains for women through transition. (3) Similarly, Katherine M Franke argues that transitional justice outcomes for women should be judged on whether they provide recognition and redistribution. (4) Recognition deals with establishing facts and identities, such as who are the victims and perpetrators of criminal practices. Redistribution deals with redistributing money and land, but also shame or symbolic and cultural resources. (5) While transitional justice mechanisms can do both, Franke decides that they are mostly engaged with recognition-based justice projects and that this has come at a cost to the individual women involved, while the limited script offered to women casts them only as victims of sexual violence. (6)

Fionnuala Ni Aolain and Michael Hamilton go further and suggest that what may appear to be a moment of opportunity for gender equality in transitional societies can become what they term 'a moment of retrenchment'. They argue that despite substantive advances in dismantling the public/private divide in many western societies, those same western states through 'rule-of-law proselytizing' can entrench the operation of this divide in transitional states. (7) Ni Aolain further explores this role of international masculinities, and the 'patriarchy that is imported with international oversight of transitional societies', in relation to issues such as the predominance of intimate partner and family violence in post-conflict states. (8)

Prima facie, these theories would seem to resonate with the current realities for Timorese women. Women in Timor generally lack political power and representation in comparison to men, and maintain the worst socio-economic indicators of the Timorese population. (9) Where women have been recognised at all in legal processes in Timor, there is a danger that it has only led to marginalisation and stigmatisation of survivors of sexual violence. (10) Trials have not contributed to a material rise to the basic living standards and status of women. (11) There may also be negative consequences for survivors of domestic violence if there is no confidence in the judicial sector to acknowledge and protect women. (12) East Timorese women themselves have continuously stressed the need for justice to encompass their ongoing economic and social rights. (13)

This article further asks what 'justice judgments' the Timorese community have made about the trials--namely, whether the Special Panel's processes were accepted and understood in the general population, especially the difference between rape as an 'ordinary' crime and as an international crime. (14) This examination sheds some light on the benefits, if any, that the existing framework of international law has for women engaged with transitional justice processes. This has traditionally been judged by reference to the participation of women in the system, any new international criminal jurisprudence, or the application of novel precedents on gender violence in a different context. This feminist analysis seeks to discover what impact the trials had on recognition and redistribution for women.

The Timor process was globally significant because the United Nations Transitional Administration in East Timor ('UNTAET') Regulations adopted the offences of the Rome Statute of the International Criminal Court ('Rome Statute'). (15) The trials can, therefore, be considered the first state application of the new global provisions, particularly crimes against humanity. (16) Moreover, it is the first clear example of a 'hybrid tribunal'. (17) As such, the Dili process is judged by what impact it has had on recognition of women's experiences, and on redistribution of material benefit and shame from survivors to perpetrators. (18)

1. Background

The UN chose to set up two transitional justice mechanisms in the territory of East Timor: the serious crimes (19) process and the Commission for Reception, Truth and Reconciliation ('CAVR'). Indonesia set up its own domestic trial process and truth commission against the backdrop of UN threats to establish an international tribunal. (20) Each of these mechanisms had novel features, and all are interconnected. The serious crimes process operated from 6 June 2000 until the withdrawal of UN support on 20 May 2005. (21)

Instead of an international tribunal, the UN chose a 'hybrid' tribunal for East Timor. (22) A 'hybrid' tribunal utilises domestic and international judges and considers international (and, occasionally, some national) laws. The Special Panels (the Trial Chamber and Appeals Court) within Dili District Court were set up by UNTAET pursuant to UNTAET Regulation No 2000/15. (23) The Panels had exclusive jurisdiction over genocide, crimes against humanity, and war crimes wherever and whenever they occurred; this included murder, sexual offences and torture that occurred in Timor-Leste between 1 January and 25 October 1999.

The broad aim of the serious crimes process was to ensure that those responsible for serious crimes committed in 1999 were brought to justice. This was reiterated by the UN Secretary-General in his report to the Security Council dated 29 April 2004 noting that:

In its resolution 1410 (2002), the Security Council stressed the critical importance of cooperation between Indonesia and East Timor, and with UNMISET, to ensure that those responsible for serious crimes committed in 1999 are brought to justice. The Special Panels were directed to apply three sources of law. (24) The first was the UNTAET Regulations and directives. The second source was composed of applicable treaties and recognised principles and norms of international law, including the established principles of the international law of armed conflict. The third source was the law validly applied in East Timor prior to 25 October 1999, until replaced by UNTAET Regulations or subsequent legislation, insofar as the laws did not conflict with either the internationally recognised human rights standards, the fulfilment of the mandate given to UNTAET under UN Security Council Resolution 1272 (1999) (25) or UNTAET Regulations or directives. (26) As decided by the Transitional Administrator for purely practical reasons, this was interpreted to mean Indonesian law.

Due to lack of cooperation from Indonesia in handing over suspects still in Indonesian territory, both the Special Panels and the CAVR were forced to focus on Timorese nationals who participated in violent acts, either as guerrillas in Falintil or as collaborators with the Indonesian forces. (27)

The United Nations, therefore, gave the Special Panels jurisdiction over two categories of crimes: international and domestic, with each category dealing with sexual offences against women.

Notably, there is no explicit delineation in UNTAET Regulation No 2000/15 as to when a sexual assault might fall under the Indonesian Penal Code or when it becomes an element of one of the serious crimes as defined. As a 'hybrid' tribunal, one of the claimed advantages of the Dili process was that it would assist in the creation of the formal legal sector in Timor. The mandate of the Special Panels goes beyond providing a role model. The Dili Special Panel assumed sole responsibility for murder and sexual offences in the post-conflict state. Therefore, the way that the Special Panel dealt with gender issues was an extremely important factor for future 'ordinary' criminal proceedings.

2. Gender analysis...