Hon. Phillip Rapoza speaking at CUA Law on Jan. 27, 2010
Obstacles to Justice in East Timor
If a system of justice has to be built from scratch, it is bound to have a limiting effect on whether justice is truly done.
That was the sober lesson shared by the Hon. Phillip Rapoza, former chief international judge of the Special Panels for Serious Crimes in East Timor, who was invited to speak at CUA Law on Jan. 27 by the law school’s Initiative for Portuguese and American Law and the Faculdade de Direito de Lisboa, in co-sponsorship with the International Law Students Association.
Judge Rapoza’s remarks, “Judging War Crimes: Experience from East Timor,” were an instructive look at the clash between aspirations and reality in trying to bring to justice the perpetrators of some of the most horrific massacres of the past 35 years.
Located in Southeast Asia, East Timor was under Portuguese control for most of its history. In 1975, the small colony declared its independence, but later that year was invaded and occupied by nearby Indonesia and was declared Indonesia's 27th province the following year. It remained under Indonesian control for 24 years, an occupation marked by the brutal political killings of an estimated 200,000 people, fully one-quarter of East Timor’s population.
In 1999, following the United Nations-sponsored act of self-determination, Indonesia relinquished control of the territory and East Timor became the first new sovereign state of the 21st century in May, 2002.
With new nationhood came a cry for justice: there were crimes to be answered for. Backed by the UN, a panel was assembled to investigate and try the perpetrators of the crimes committed against the East Timorese people. Judge Rapoza, currently the chief justice of the Massachusetts Appeals Court, was installed as the head of the tribunal in 2004. East Timorese jurists also served, contributing an invaluable understanding of local history and culture.
However, resources were a problem from the outset. The Special Panels for Serious Crimes in East Timor lacked a law library, law clerks, translation capabilities and often, access to working computers or to the Internet. Worse, there was no extradition agreement with Indonesia. Indonesian military officials and others who had ordered the killings in East Timor from 1975-1999 were, for the most part, out-of-reach and untouchable.
In the end, more than 300 arrest warrants were issued by the special panel, but only 101 defendants actually appeared before the court. Most of these were East Timorese collaborators during the occupation by Indonesia.
“All of those warrants are still outstanding and unlikely to be executed,” acknowledged Judge Rapoza.
Yet the judge remains proud that the special panels accomplished as much as they did, given the severe limitations they were forced to operate under.
"The prosecution and punishment of local perpetrators of serious crimes in East Timor also helped to promote national reconciliation and the restoration of peace by bringing closure to cases from the past, discouraging private retribution and confirming the importance of the rule of law," said Judge Rapoza. "If the justice that was done by the serious crimes process was not always perfect, it was always better than the alternative, which was to leave the festering wounds of the past unhealed."
The program was moderated by CUA law visiting professor Andrea Boyack. Commentary was offered following the judge’s presentation by Susana SáCouto, director of the War Crimes Research Office at American University’s Washington College of Law.