This is a near verbatim transcript of a press briefing by Peter Galbraith, Director of UNTAET Political Affairs Division, on the Memorandum of Understanding on cooperation in judicial, legal and human rights matters between UNTAET and Indonesia.
Dili
7 April 2000
As you know, Article 11 of the Joint Communiqué that was signed by SRSG Sergio Vieira de Mello and Indonesian Foreign Minister Alwi Shihab committed UNTAET and the Government of Indonesia to conclude a memorandum of understanding regarding cooperation in legal, judicial and human rights matters as soon as possible. Negotiations on an MOU had already began during the mission that I lead in February [and talks] with the Attorney General Marzuki Darusman. Following the visit of President Wahid there was an exchange of letters between Sergio Vieira de Mello and Marzuki Darusman on interim measures of cooperation, and during the SRSG’s visit to Jakarta last week the Attorney General indicated that he would like to conclude an MOU as quickly as possible. That was done on Monday and Tuesday.
Frankly, the document exceeds our expectations in terms of the level of cooperation that is envisaged in it. It provides comprehensive mechanisms by which information can be shared and safeguarded, so as to support criminal prosecutions in Indonesia of those responsible for the crimes last year. It provides mechanisms by which witnesses may be interviewed in East Timor by CivPol and East Timorese Judiciary. It is very symbolic that the Memorandum comes as we mark the first anniversary of the massacre in Liquica, because it is in fact a very important step in the possibility of having justice for the victims of that massacre. I will now turn this over to your questions, if any.
Q: Does this mean that CivPol will ask for extradition of people like Eurico Guterres who are in Indonesia?
PG: It provides arrangements for the transfer of persons, at a request of the requesting party, who may have committed crimes in the jurisdiction of that party. To the extent that an individual who committed crimes in East Timor, and that individual is now in Indonesia, yes – it is possible to make a request that he be transferred to UNTAET.
Q: (inaudible)
PG: The agreement has just been concluded. UNTAET Human Rights Unit and CivPol will be examining cases to determine those that might be most appropriate for a request for a transfer. This agreement is a very important measure, but it is only part of the story. In many of these cases there is concurrent jurisdiction as between UNTAET and the Republic of Indonesia, so there will have to be a process with the Indonesians as to who pursues which case. But, it is a clear understanding of the meetings that we had in Jakarta last week with the Attorney General that some of these cases would indeed be tried here. And that is a very significant development.
Q: Is it then right to assume that some of these cases will be tried in Indonesia?
PG: That has happened. The Indonesian Human Rights Commission has prepared a report; it has indicated possible criminal liability by a number of Indonesians, including senior officials, former senior officials of the Indonesian Government. The Attorney General is engaged in an active investigation of that. So, those investigations are going forward. Certainly, where the individuals are physically located in Indonesia, and are of Indonesian nationality, the Attorney General is pursuing those cases. It is likely that the trials will be held in Indonesia for those individuals.
Q: So, according to this document, witnesses from East Timor can be transferred and protected in Indonesia while these cases are going on?
PG: Yes, a witness might go from East Timor and there are provisions for that witness to be physically protected. That witness would of course be immune form any criminal prosecution while in Indonesia and participating in a judicial proceeding. And vice versa. The important thing about this Memorandum of Understanding is that [for] every obligation assumed by UNTAET there is a reciprocal and identical obligation assumed by the Republic of Indonesia. So, whatever procedures there are to cooperate with Indonesian investigations, there is a comparable requirement for Indonesia to cooperate with UNTAET’s investigations.
Q: If an Indonesian court was to find General Wiranto guilty, and President Wahid was to then pardon him, could a court in East Timor request the Attorney General in Indonesia to extradite him here to face charges?
PG: This is an agreement between UNTAET and the Republic of Indonesia and therefore it lasts for the duration of the transitional period. In the scenario you described, probably these trials may well last beyond the transitional period, if there are any. But the answer is, theoretically, yes. As to whether Indonesia, applying its own principles of double jeopardy, would consent to the extradition of somebody whose case had already been judicated in an Indonesian court, I am not enough of an expert on Indonesian law to be able to answer that.
Q: Whose decision is it to seek extradition? Is it the judges here or is it a political decision by the UN?
PG: It is a decision by UNTAET. The MOU does not speak of which mechanism UNTAET would use to make such a request. And frankly, since this is the first agreement we have that provides for the transfer of persons, I don’t think the procedures have been fully worked out. But clearly it would involve the police that are doing the investigation; it would involve the Human Rights Unit; it would involve the judiciary; at a minimum, it would involve the political side of UNTAET, because it would be for us to transmit the request.
Q: Talking about possible extradition requests to Indonesian authorities, would they be directed towards militia members or Indonesian soldiers who committed crimes in East Timor?
PG: I think it is premature for me to speculate what cases UNTAET might pursue in terms of seeking transfer of persons. And I am not sure that in any judicial, investigative process it is a good idea to tip your hand before you go ahead and allow any suspects to abscond. But, the point remains, as in our conversation with the Attorney General, that some cases should be tried here in East Timor.
Q: (inaudible)
PG: Again, the issue of who tries and how UNTAET and then East Timor constructs its judiciary is not a subject of the MOU. MOU is a document between UNTAET and Indonesia, so that will be determined by the East Timorese law and regulations. There is a special unit of East Timorese judiciary which has jurisdiction over certain categories of crimes, including crimes against humanity, which is clearly one of the categories envisioned in the Memorandum of Understanding.
Q: Does this agreement ensure that no perpetrator of the crimes from last year will escape justice?
PG: No, the agreement does not ensure any such thing. It does provide a mechanism for cooperation in the pursuit of those individuals. But there are many other factors that are brought to bear, including the ability of the Attorney General of Indonesia to pursue his cases; the ability to physically apprehend suspects who possibly may abscond the outcome of a judicial proceeding. This is a very significant positive step, but it is by no means a guarantee that justice will be done. That is a long process which will have to be measured only by the results.
Q: Who would be responsible for providing security to the witnesses that would be going to Indonesia?
PG: It would be the responsibility of Indonesia to protect witnesses in Indonesia as it would be the responsibility of UNTAET to protect witnesses who come to East Timor. However, it is, although not spelled out in the MOU, very much within the scope of what has been discussed in Jakarta that there would be procedures by which any witness who went to Indonesia would be accompanied perhaps by CivPol or some individuals to ensure their maximum comfort. That incidentally is not only in our interest but it is in the interest of Indonesian prosecution. Virtually no prosecutor in a criminal case will compel testimony of a witness under these circumstances, because you need to have cooperative witnesses. A non-cooperative witness is a very uncertain thing for a prosecutor or a defense attorney. So, it is in their interest as it is in ours that witnesses are comfortable in their role of a testifier.
