Major suspects escape justice while small fish fry in East Timor

In the top-security cell, which smells pungent, one man is a day or so away from death, his head twice normal size due to a neurological disease. The warden keenly observes: "You can smell death in this cubicle."

This is a country, they speculate, where local eye-for-an-eye justice is inevitable; and where the formal UN-sponsored legal system and formal law struggles for relevance amid ineptitude, while the local order sharpen their machete.

My client is a militia commander charged with offences amounting to Crimes Against Humanity, originally charged with other co-accused, who for their part pleaded early. He now stands alone; charged on the basis of command responsibility for an assortment of charges namely, murder, rape, torture, imprisonment and persecution.

I am speaking with my client in his cell, and a nun appears and is granted entrance. The men of C block, all on charges of multiple murders, are reputed to be the most hardened of militia men -they all run to kiss her hand. They sit cross-legged like schoolboys and with handclapping gestures sing what sounds like a hymn she has taught them by rote.

This is a common theme. Inscribed on cement walls throughout the gaol, a strange combination of extreme religious fanaticism and deep-seated fascination with violence. Inmates see no contradiction in etching on their cell wall, a crucified lord and a bloodthirsty warrior eating a child. Hung over sleeping mats are crosses made from discarded boxes of Colgate toothpaste.

In an unused part of this prison, which operated during the Indonesian occupation, vacant cells are an ominous reminder of a brutal past. In these close quarters political prisoners languished, while the rest of the world sought amnesty. A lifetime of history scratched into these walls, like an artist's pallet - they tell stories.

Ghosts of an ideal. Now on Timor's list of 'disappeared', few would have lived to see their glorious Falintil flag raised on independent soil. Bullet holes in the court yard mark the fate of brave advocates of self determination.

In a twist of fate the prison now swells with pro-integration militia, indicted for crimes arising out of the events of September 1999. In the scheme of things however, these inmates are largely small fry. Simple villagers easily coaxed or coerced, partly by virtue of their servile deference to Indonesian authority, partly due to an acceptance of the impunity enjoyed by TNI military officers.

These indictees are generally characterised by an absence of education, and a distinct lack of sophistication. These are the scapegoats. They are the statistics that will ultimately be presented to appease the conscience of the world.

While not for an instant belittling their charges or dishonouring the victims, instead I seek to question why, outside this gaol and across the water to Jakarta, the true authors of atrocities evade international justice and perpetuate the exemption from punishment enjoyed by agents of state, who have for a quarter of a century flagrantly violated the human rights of indigenous Timorese.

Let me digress briefly, to highlight recent disturbing international developments that undermine confidence and lend an Orwellian flavour to the pursuit of international justice in East Timor.

Of late, Jakarta's Human Rights Court has proved nothing less than a theatre for show trials dispensing a litany of manifestly inadequate sentences and outright acquittals - as commitment to pursue TNI military commanders for the 1999 bloodbath weakens. Indonesia, it now appears, has a special friend in the Bush Administration who now seek to woo the TNI for their own "war on terrorism" in South East Asia. Pragmatism inevitably claims justice as the first casualty in any deal brokered between strange bedfellows.

For effect, US statesman Colin Powell announces to the world that it will not normalise military relations with Indonesia, (which were severed after the TNI led the September 1999 clandestine operation into East Timor), unless justice is seen to be done.

Coincidentally, in the same week, the US lodges an unprecedented appeal by the Department of State to a Federal court judge to dismiss a civil case against oil giant ExxonMobil. This civil suit alleges that ExxonMobil, or more specifically its major natural gas operation in Ache, was responsible for grave human rights abuses committed by Indonesian security forces in the province.

This open and direct encroachment upon the independence of US judiciary, not only places in doubt the resolve of the administration of President George Bush to enforce corporate responsibility but also highlights an insidious trade in human lives for oil and gas interests and calls into question whether there is any political will to try the masterminds of terror.

To compound this appalling conduct, the US State Department also negotiated with the newly independent East Timor to sign an agreement exempting U.S. military personnel from prosecution before the International Criminal Court. This exemption, signed on Friday 23 August 2002, joins Timor with Romania and Israel as the third government to sign such a pact, known as an Article 98 agreement.

And then insult to injury. The recent appointment of Henry Kissinger to head a US expert commission into terrorism is the crowning act of impunity. This appointment flies in the face of a compelling case for arraignment, and direct evidence that Kissinger aided and abetted the1975 Suharto-led invasion and traded arms that directly amassed a death toll in Timor equal to the casualties experienced by the Soviet Union in the Second World War. As Christopher Hitchens puts it: "His own lonely impunity is rank; it smells to heaven. If allowed to persist then we shall shamefully vindicate the ancient philosopher Anacharsis, who maintained that laws were like cobwebs; strong enough to detain only the weak and too weak to hold the strong."

In light of these international events, imagine how my client feels to hear that the enforcement of human rights are negotiable in some corners of the globe if you have influential friends, and that he will face as much as 33 years for his part in the events of September 1999, while his TNI superiors will thumb their noses at the justice process. And add to this how he might feel, knowing that a US citizen accused of the same offences would never be indicted for international crimes by his government.

What might he think when he rises in the court to receive a sentence of eternity, knowing that an appeal of his sentence is unlikely given that no Appeal Chambers has operated in Timor for most part of last year? After more than two years in custody without review of his detention, he could be excused for maintaining a well founded contempt for a system of selective justice that reeks of double standard.