Gender and Transitional Justice

The Women of East Timor

Susan Harris Rimmer

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781135272456
• Edition: 1
• Topic: Jura
• Subtopic: Geschlechtszugehörigkeit & das Gesetz

Gender and Transitional Justice provides the first comprehensive feminist analysis of the role of international law in formal transitional justice mechanisms. Using East Timor as a case study, it offers reflections on transitional justice administered by a UN transitional administration. Often presented as a UN success story, the author demonstrates that, in spite of women and children's rights programmes of the UN and other donors, justice for women has deteriorated in post-conflict Timor, and violence has remained a constant in their lives.

This book provides a gendered analysis of transitional justice as a discipline. It is also one of the first studies to offer a comprehensive case study of how women engaged in the whole range of transitional mechanisms in a post-conflict state, i.e. domestic trials, internationalised trials and truth commissions. The book reveals the political dynamics in a post-conflict setting around gender and questions of justice, and reframes of the meanings of success and failure of international interventions in the light of them.

1
Introduction: A luta continua! (The fight continues!)

One of the bravest but least known acts during the East Timorese¹ resistance to Indonesian occupation occurred in November 1998 when over 20 Timorese women told their stories of surviving sexual violence² to crowds of hundreds at a public meeting in Dili. The stories were collated into an English language book called Buibere,³ which means ‘woman’ in Mumbai, the second most common Timorese language after Tetum. It was written only in English, published in Australia, and intended as an advocacy document for the international community. Between 1975 and 1999, there had only been four short but searing reports from international non-governmental organisations (NGOs) about gender-based persecution of women in East Timor, and no official United Nations (UN) comment.⁴ But the persecution, as described first-hand in these collected testimonies, was intense, and included rape, torture and other inhumane acts.

In November 2001, in an independent East Timor, the local women’s rights NGO FOKUPERS⁵ released a second version of Buibere in Tetum at a public event, with many of the women who contributed stories to the book present. The second edition is intended to formally respect and honour the contribution of East Timorese women to independence and the high price they paid during the Indonesian occupation.

Some of the problems that continue to face the women of East Timor were graphically outlined by advocate Sister Maria de Lourdes Martins Cruz at the launch:

‘A luta continua!’ she said, and described how the women of East Timor were still second-class citizens in their own land. ‘A luta continua!’ and she described how girls still don’t receive the same educational or employment opportunities as men. ‘A luta continua!’ and she told of domestic violence still rampant, women still serving as slaves in their own homes, women bought and sold like commodities under the tradition of bride price, and men leaders still unwilling to accept East Timorese women as equals. Ovation after ovation shook the hall.⁶

Given the serious nature of the crimes outlined in Buibere, Sister Maria’s speech is striking in that in the eyes of those survivors present that day, independence did not necessarily mark the end of violence against women, just a new manifestation of violence and subordination. There appeared to be a clear linkage between the gender-based political persecution and violence by invading forces, understood as the burden of the feminine face of resistance, and endemic gender-based violence and inequality experienced by women as citizens in the transitional Timorese society.

ARGUMENT

This book seeks to answer the question of what role international law has played in relation to East Timorese women engaged with transitional justice processes from 1999 to 2009. Despite the placement of women in some key decision-making positions within the transitional justice mechanisms,⁷ I argue that women in East Timor generally did not receive tangible and satisfactory results from the justice system in the post-independence period. I assess what women can demand and expect from transitional justice processes, and how transitional justice models can be revised to achieve these results.

I focus on a feminist examination of the role of international law within the overall framework of transitional justice interventions designed for the violations of human rights in East Timor. I limit my inquiry to an analysis of the treatment of gender-based violence⁸ experienced by East Timorese women in the period from 1975 to October 2007 as highlighted within the formal transitional justice processes that occurred between 1999 and 2009.

My analysis shows there are still gaps and silences in the categorisation and prosecution of gender-based violence under international law as experienced in Timor. The question is whether feminist analysis needs to question the obligation to prosecute imposed by international law, especially the imperative to immediately hold criminal trials.

Reopening debate about the timing and manner of trials in a post-conflict state is important because I contend that Sister Maria was correct in stating that the problems facing Timorese women in the independence period are linked to the problems women faced during the occupation. Recognition and redress under the law for gender-based violence in war is linked to recognition and redress for domestic violence and socio-economic rights in ‘peace’.⁹ The claims made for the transitional justice mechanisms chosen for Timor were that they would contribute to building the rule of law in both Timor and Indonesia. Women in Timor generally lack political power and representation in comparison to men,¹⁰ and possess the worst socio-economic indicators of the Timorese population.¹¹ One can assume that the strength or weakness of the rule of law in a new state will have a gendered impact.¹²

The vulnerable situation of women in East Timor in the post-independence period has several implications. There is a growing consensus in donor countries that international interventions should seek to at least do no harm, a proposition derived from the Hippocratic oath and increasingly applied to humanitarian interventions.¹³ Put simply, transitional justice interventions should seek to be inclusive of women’s experiences of the conflict and post-conflict periods and not undermine any progress for women. If this cannot be achieved at the outset of the post-conflict period, I argue that other strategies should be pursued to gain material benefits for women, even if the goal of combating impunity can eventually be met in substance by holding gender-sensitive trials.

Even if perfect trials and truth commissions were held which achieved all the traditional goals of transitional justice mechanisms, there may be limitations on what law, especially international law, can achieve to benefit women. Katherine M. Franke argues that transitional justice outcomes for women should be judged on whether they provide recognition and redistribution.¹⁴ 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.¹⁵

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. Trials have not contributed to a material rise to the basic living standards and status of women. 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. I therefore propose one alternative way of addressing the situation of women. By moving beyond ideas of women as victims or even survivors, by redefining what it is to be a ‘veteran’, progress could be made as veterans receive both maintenance and status in the new state. East Timorese women themselves have continuously stressed the need for justice to encompass their ongoing economic and social rights.¹⁶

The danger for East Timorese women now is what I term the ‘changing the curtains’ phenomena – that fundamental changes in the sovereignty of the state in the form of independence may mean that the basic conditions of women’s lives, or their potential to claim their legal rights, does not change in any meaningful sense, as described in the call to arms by Sister Maria. Despite some important efforts to include women and their experiences in the justice mechanisms established in East Timor since 1999, Timorese women such as Sister Maria may indeed have cause to be disenchanted.

1.1 Parameters

The scope of the book is bounded by several factors. The most important limitation is that I try to measure the impact of international law on the women of East Timor, which can only be a partial and contested enterprise. In analysing the impact of international law on Timorese women, I am cognisant of my own writing position as an Australian academic, and the immense diversity of the female population of Timor.¹⁷ The aim of the book is to be exploratory and ask the question ‘where are the women’¹⁸ in the transitional justice processes for Timor.¹⁹ The quotation by Ivo Andri

c prefacing the book invites us to think more broadly about masks of humanity ripped away from survivors of armed conflict and see the reality or complexity of what might be exposed underneath.²⁰ It also asks us to think about men and women wearing different masks, as fighters, victims, survivors, citizens, veterans.²¹

The evidence about women and transitional justice is therefore impressionistic because comprehensive data about Timorese women’s attitudes towards transitional justice issues does not yet, and may not ever exist. Nevertheless, Timorese women’s voices are foregrounded wherever possible. Key documents produced by Timorese women’s groups containing their positions and voices on justice issues, such as the Women’s Charter of Rights adopted in 2000, are fundamental to this book.²²

Another limitation is that research about the transitional justice mechanisms in East Timor and Indonesia is heavily reliant on translated primary materials such as indictments, judgments and court observations by NGOs such as the Judicial Systems Monitoring Programme (JSMP) and the Berkeley War Crimes Studies Center, as well as translated Indonesian and Timor press articles.²³ The lack of access to the primary materials is important in itself because access to the law is a key indicator to denote the existence of the rule of law.

A final limitation is that I focus only on the formal transitional justice mechanisms. The impact of informal mechanisms; such as traditional justice, non-state actors on justice outcomes for women including the Catholic Church,²⁴ civil society groups,²⁵ and cultural/artistic programmes;²⁶ plus economic actors, such as donor governments, the World Bank, International Monetary Fund, corporations and development NGOs²⁷ are very important and deserve further research but are outside the bounds of the book.

FEMINIST CRITIQUES OF TRANSITIONAL JUSTICE MECHANISMS IN EAST TIMOR

This book aims to provide the first comprehensive feminist analysis of the role of international law in the formal transitional justice mechanisms that relate to East Timor.²⁸ As such, I survey the current literature in relation to general transitional justice debates and theory that deal with the role of international law or transition to the rule of law, with an emphasis on literature that has concentrated on East Timor as a case study. I have further assessed the literature dealing with gender and transitional justice, and gender issues in occupied Timor and post-conflict Timor.

1.2 Transitional justice debates

Transitional justice is a relatively young but burgeoning area of research, which has rapidly gathered momentum in the post-Cold War period. It began with work in the 1980s and 1990s, mainly produced by US political scientists and economists in relation to post-conflict states in Latin America and Eastern Europe.²⁹ Transitional justice scholars focus on what it means for a nation to come to terms with a violent past and what to do with the perpetrators of the violence. This is usually done by analysing accountability mechanisms at a point of transition for those accused of having committed human rights violations during the prior regime.³⁰ Analysis is heavily focused on institutions and institution-building. Accountability options include the following mechanisms; (a) international prosecutions; (b) international and national investigatory commissions; (c) truth commissions; (d) national prosecutions; (e) national lustration mechanisms; (f) civil rem...