The Dynamics of Transitional Justice: International Models and Local Realities in East Timor
By Lia Kent
New York: Routledge, 2012
Reviewed by ERIC WIEBELHAUS-BRAHM, University of Arkansas at Little Rock
Kent’s fascinating book explores the multiplicity of justice demands within post-independence East Timor and the general failure of international transitional justice models to deliver on demands for justice after decades of Indonesian rule. Under United Nations (UN) leadership, the Serious Crimes Process and the Commission for Reception, Truth and Reconciliation (CAVR) were established to provide retributive and restorative justice, respectively, for human rights violations in East Timor. Outside actors, predominantly the UN, devised transitional justice processes that had little resonance with Timorese. Moreover, their strategies were built upon conceptions of the Timorese conflict that did not match the lived experience of many locals.
To conduct her study, Kent follows Keiran McEvoy in employing “’thick’ explorations [to] focus on its [transitional justice’s] complex, multilayered and actor-oriented dimensions” . She critically compares and contrasts the transitional justice narratives produced by UN officials, East Timorese elites, and East Timorese survivors. Specifically, her goal is to elucidate how the dominant discourse failed to meet the needs of many survivors. For UN and elite perspective on transitional justice, she relies on official documents and speeches, accented with some interviews. Her critical textual analysis reveals how liberal transitional justice discourse generated particular retributive and restorative justice processes, while foreclosing other options that might have had greater relevance to survivors. To understand survivors’ justice needs, Kent conducted approximately 100 interviews with participants in the two UN-run transitional processes as well as local community leaders as part of a broader fieldwork project. Kent’s methodology is thoughtful and sensitive to demands of cross-cultural research, but one still wonders how representative her interviewees are of Timorese in general. Her interviews were conducted in three districts and involved speaking only with individuals who participated in the Special Crimes Process or the CAVR. While reasonable, Kent does not give us much detail on how representative these districts are. In addition, while participation is a useful way to identify interviewees, one is left to wonder whether the views of Timorese who did not participate in official transitional justice processes differ from those who did. Finally, she does not systematically explore how the views of community leaders and the masses could vary.
According to Kent, the UN entered East Timor in 1999 to manage a referendum on independence from Indonesia desperate for success after a chequered decade of interventions. Following the post-election violence, the UN largely undertook a template approach to transitional justice and failed to consult with East Timorese. The UN employed strong retributive rhetoric and, on the surface, it looks successful. Nearly 100 indictments were issued and 84 convictions were obtained under the Serious Crimes Process . Locals wanted retribution, but not in the way that the Serious Crimes Process was conceiving it. They wanted the masterminds to be shamed, punished, and directly confronted with their deeds . Conviction numbers mask the real picture. In fact, there was little international political will to genuinely support the rhetorical commitment. The UN and regional powers were reluctant to antagonize Indonesia, which did not cooperate with the Serious Crimes Process, or to cause further instability that might generate refugee flows. As a result, most of those convicted were low level East Timorese militia members; those most responsible evaded prosecution . In addition, the Serious Crimes Process was mandated to look only at violence surrounding the 1999 referendum. This neglected survivors of abuse from earlier periods of Indonesian repression. Furthermore, despite the attempt to clearly separate perpetrators and victims by the Serious Crimes Process, many locals saw many East Timorese as both . Criminal justice processes also clashed with East Timorese obligations to the dead . Traditional beliefs urge quick burial of remains, but autopsies and exhumations were done in a painstaking manner to collect evidence. Finally, the trial processes were unable to address the socio-economic justice demands of the much larger segment of East Timor’s population. Many, for example, thought the Serious Crimes Process (and the CAVR) would facilitate some kind of financial assistance. In their view, the failure to address their sacrifices that made independence possible and their current plight while elites lived well represented a continuing injustice [166, 168].
Given the Serious Crimes Process’ limitations and the greater connection to traditional practices, Kent argues that the CAVR was held in higher regard by East Timorese. People who participated in the CAVR valued the opportunity to tell their story, to get recognition, and to fulfil their obligations to the dead . Nonetheless, there were significant limitations. Narratives of sexual violence or of violations by East Timorese groups were often taboo. Respondents felt the CAVR tried to alter their personal narrative to fit their broader purposes of characterizing the conflict. Moreover, at approximately 2,000 pages, the CAVR’s final report, Chega!, was not accessible to much of the population, which suffers from high illiteracy rates. The CAVR’s Community Reconciliation Process (CRP) allowed for broader participation than the CAVR public hearings and was generally more highly regarded, but it too had limitations [155-159]. The CAVR privileged outcome over process in that victims had little say in the “acts of reconciliation” assigned to perpetrators by the CRP. Respondents had more positive views of the CRP if they felt that the perpetrator had told the whole truth. Many victims also felt pressure to reconcile during the CRP. Victims of serious crimes were largely not satisfied, but the CRP was designed for lesser crimes. In addition, few elites atoned for what they had done. In fact, many saw the ability of the ‘big fish’ to avoid sanction as a major injustice. Finally, the international community and East Timorese authorities devoted few resources to implementing the CAVR’s recommendations or disseminating its findings . Emblematic of this is a weak reparations program that has reached only around 700 people .
East Timorese elites have their own vision of transitional justice, in contrast to the international community and to local East Timorese. Elites emphasize reconciliation and collective dimensions of transitional justice. This is a pragmatic policy that reflected the country’s poverty and the need for amicable relations with its bigger, more powerful neighbour. Elites saw transitional justice as part of the nation-building project. As such, they emphasized the need for unity, the need to forgive and forget. This rhetoric served to mask the history of division within East Timorese society with respect to how to respond to Portuguese and Indonesian rule. Recognizing victims of intra-East Timorese violence was contrary to the unity message . Kent argues that a social justice agenda that would address structural inequality is vital for promoting reconciliation . However, the government’s pursuit of neoliberal policies in line with World Bank and IMF policies prevents such a policy from being pursued.
Victims and survivors have not been passive in the pursuit of justice that is more in line with their needs. They have conducted reburials, sometimes symbolically, and built memorials and sacred houses in order “to restore balance in the worlds of the living and the dead” . These acts are a way for victims to press their demands to elites. By demonstrating “that victims’ suffering has not ended and that the struggle for justice remains unfinished, local acts of ‘political mourning’ further complicate official discourses of healing, forgiveness, transition and the remembrance of a triumphal past” . Nonetheless, victims remain fundamentally divided by gender, age, socio-economic status, locality, and political orientation and it is not clear that they will be able to advance their agenda .
Kent highlights three important lessons from the East Timorese transitional justice experience for practitioners, activists, and scholars [204-211]. First, the discourse of transitional justice promotion needs to be more realistic. Transitional justice is promoted as therapeutic and legalistic and something that can be achieved in a short amount of time. The reality is that it is a long, contentious process. Second, given this recognition of transitional justice as long-term process, trials and truth commission reports are weak evidence of success. Success will depend more on intergroup dialogue before and after formal transitional justice processes. A final lesson that follows from this is that measuring transitional justice impact also is a long-term process. The everyday injustices of malnutrition, poverty, and health need greater attention, an indication that transitional justice’s tendency to focus on victims of direct physical violence is overly narrow. While important, these critical lessons are not necessarily novel. Many have noted the desirability of local involvement in transitional justice creation and execution, the need for a long term focus on evaluation that is sensitive to local circumstances, and the importance of addressing structural violence. These are vital issues. Nonetheless, like many other critics, Kent does not give the reader many concrete recommendations to overcome the political, economic, security, and other obstacles to realize this ideal. Overall, however, Kent has provided us with an important study that deserves wide readership.