The Limits of “Genocide”: East Timor, International Law, and the Question of Justice

Abstract

The two-decade-long occupation of East Timor by Indonesia has long been the focus of debate within genocide studies, with scholars on one side arguing for its recognition as “genocide” and, on the other, insisting on its exclusion from acknowledgment as such due to its inability to satisfy certain legal criteria. Our article revisits this conflict and the surrounding debate in order to stake out a larger claim about the logic of the legal form in contemporary global order. Following a growing critical scholarship in genocide studies, we argue that the concept of genocide itself entrenches harmful understandings of global order and contributes to structures which encourage the mass violence it nominally aims to identify and prevent. Far from being singular, it further represents fundamental limitations regarding the legal form as a mechanism of justice and resistance. To support this claim, we use the failure of various justice and reconciliation mechanisms to prosecute genocide in East Timor to illustrate the ways in which a legal system predicated on imperialism shapes both the behavior of a newly minted domestic elite and the larger project of state sovereignty itself.

1. Introduction

On the morning of 17 August 1945, a small ceremony was held in the front yard of a modest Jakarta residence. Sukarno, Indonesia’s great nationalist and its first president, had declared the country’s independence alongside his future vice president Mohammad Hatta (Friend 2022, p. 31). For the next twenty years, Sukarno and his allies would undertake the arduous task of constructing a unified nation out of a formerly colonized territory made up of over 1000 ethnic groups, 700 languages, and countless ideologies dispersed across thousands of islands (BPS-Statistics Indonesia 2024, 9, x; Friend 2022, p. 30). However, this task of nation-building abruptly changed course when Sukarno was ousted in a controversial military coup. To destroy Sukarno’s base, the new president—the military strongman Suharto—carried out a massive anti-communist purge, wiping out much of the Communist Party (at that time, the largest communist party outside of China and Soviet Union) as well as the broader Indonesian left. These killings left 500,000 to 2 million Indonesians dead, constituting one of the greatest episodes of mass violence in the twentieth century (McGregor 2009). The regime that emerged, known as the New Order, established itself on a developmentalist, autocratic, and above all anti-communist platform, entrenching institutional tendencies towards elite collusion, corruption, and academic repression which hinder Indonesia’s democratization until this day (Simpson 2008, pp. 255–57).

Within the context of the Cold War, the regime change also meant that Indonesia abandoned its leadership of the non-aligned movement, accepting foreign aid and development funds from the US, Australia, and Great Britain in return for aligning itself with the Western Bloc. In 1975, the Indonesian military once again spearheaded an anti-communist campaign with the support of these Western allies, but this time targeted at a territory which did not fall within its own colonial borders. East Timor, a former Portuguese colony (Portugal having withdrawn in April 1974 due to a military coup back in Lisbon), declared independence in November 1975 under the revolutionary party FRETILIN. For the United States, the fledgling state represented a communist threat—a potential “Cuba in Asia” (Cristalis 2009, p. 39). For Indonesia, an independent, left-leaning state on its borders represented a potential source of instability and incursion. Given tacit approval by President Gerald Ford and Secretary of State Henry Kissinger during a visit to Jakarta, a meeting the US State Department later described as “the big wink,” Indonesia invaded East Timor on 7 December (Cristalis 2009, p. 40). For the next four years, Indonesia waged a brutal pacification campaign against East Timorese resistance and embarked on an occupation that lasted over two decades. During this period, East Timorese faced displacement, torture, rape, arbitrary detention, and disappearance in addition to fatalities caused by induced famine and illness (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005a, pp. 44–46). The estimated death toll ultimately came to around 200,000, or almost a third of East Timor’s total population (East Timor Action Network 2000, p. 200). Though the case of East Timor is now taught in genocide studies programs, justice mechanisms instituted by the United Nations, Timor-Leste, and Indonesia failed to prosecute any high-level perpetrators for genocide, war crimes, or crimes against humanity. For the leadership of Timor-Leste, the stabilization and securitization of the state have taken precedence over justice for past atrocities (Strating 2014, pp. 250–53).

In the 21st century, as debates around the applicability of the concept of genocide seem to rage in different geographical contexts, we believe it is crucial to return to the case of East Timor. Doing so highlights the flaws and limitations of the official definition of genocide, as well as the failure of international law to provide effective recourse to populations which have been subject to mass violence. As we explore throughout this paper, critiques of the international response to East Timor both during the Indonesian occupation and subsequent reconciliation process are easily forthcoming. Most of these analyses, however, present the case of East Timor as a failure of international law—a singular event in which the international community failed to bring the norm of self-determination to bear upon an unlucky population. Similarly, the limited legal analyses of the genocide question with regards to East Timor use the case as a stepping stone to argue for the reform or reconceptualization of the concept of genocide within international law.

We seek to bring this conversation a step further by analyzing the case of East Timor within the historical context of imperialism, arguing that it is neither the specific limitations of the concept of genocide nor the ineffectiveness of international law in the face of Cold War power politics that failed to either prevent or provide substantive justice for the mass violence in East Timor. Instead, following an extensive body of critical legal scholarship, we argue that international law itself embeds relations of imperialist domination within the system of sovereign equality. Rather than acting as a counterweight to the inequality produced by capitalist relations and to great power realpolitik, positivist international law was formed through the historical process of colonialism and is thus the constitutive unit of an international system which allows certain states to shape policy and law to the detriment of others. Imperialism, moreover, is not merely a strategy pursued by such states but a fundamental systemic imperative of an international system whose relations are structured by the logic of capitalist expansion (Saccarelli and Varadarajan 2015). Given this understanding of the systemic nature of imperialism and the role of international law in promulgating inequality between states, the limitations of genocide become a starting point through which to interrogate the character and purpose of post-conflict truth and justice mechanisms and of the post-conflict state’s ascension to a status of juridical equality.

To develop this argument, we begin the article by providing a succinct overview of the major trends in the field of critical genocide studies, focusing on the preexisting legal analyses of the case of East Timor. In doing so, our goal is to highlight the fundamental theoretical limitations of the prescriptions emerging from this tradition. The second section is dedicated to a historical overview of the occupation of East Timor by Indonesia and of the reconciliation processes instituted post-independence. In the third, we bring the earlier sections together by presenting the history of international law as structured by imperialism and elucidating the role of sovereign equality in perpetuating conflict and inequality. In doing so, we show how critiques of East Timor’s non-recognition as a genocide and of its post-conflict justice mechanisms obscure the more fundamental logic behind the sustained inequality experienced by Timor-Leste in the global system. By situating East Timor within the historical process of international law’s universalization, we present a case for a fundamental rethinking of the role of state sovereignty within international law in general and for societies recovering from mass violence in specific.

2. States, Violence and the Problem with Genocide

Although the concept of genocide remains a cornerstone of international human rights law and a key rhetorical device for human rights activists, the historical specificities of its origins as well as the discrepancies in its contemporary application have led to a recent outpouring of critical scholarship. The body of literature which constitutes critical genocide studies can generally be divided into three strands: one critiquing the political agendas which have shaped both the popular concept of genocide and its application in international law; a second that highlights the limitations of the United Nations Genocide Convention (UNGC), particularly its list of victim groups; and a final strand that seemingly seeks to overhaul the concept of genocide altogether. Much of this work, particularly in third strand, connects the analysis of genocide to an anti-imperialist critique of world order; decrying international and domestic inequality, violent processes of colonization and decolonization, and the nation-state system itself as root causes of genocidal violence. Even these works, however, root their prescriptions for an alternative framework that can encompass violence against groups within pre-existing international law. Though perhaps pragmatic, these prescriptions thus carry over many of the issues with the legal and popular response to mass violence which they sought to critique in the first place. This section first provides a brief overview of some of the main works in each strand of critical genocide studies. We then depart from the broader literature to present East Timor as an explicative case study for the imperialist functioning of post-conflict interventions and of international law at large.

The first strand of critical genocide studies consists primarily of scholarship that problematizes the visibility of various episodes of mass violence, focusing on the all-important question of which cases are elevated to the limited “genocide studies canon” and which remain “forgotten” (Hinton 2012, p. 12). In so doing, scholars address both the political usage of the term “genocide” and the depoliticization of its victims. Edward Herman and Noam Chomsky’s Manufacturing Consent, for instance, presents a statistical analysis of the use of the term “genocide” in mainstream media to show that the label was far less likely to be applied to atrocities committed by allies of the United States, even when the scale of devastation was much greater (Herman and Chomsky 2010, p. xxi). Other scholarship has investigated various instances of mass violence, including the Indonesian anti-communist massacres in 1965, Saudi Arabia’s blockade of Yemen, and Rwandan-perpetrated violence in the Democratic Republic of Congo, to show that mass violence is much less likely to be considered a genocide in popular imagination and scholarship if the perpetrators received backing from Western powers and if the victimized group managed to muster significant resistance (Melvin 2018; Lederman and Lederman 2024; Okosun and Kibiswa 2013). In his attempt to define the field, Hinton (2012, p. 13) classifies East Timor within “the periphery” of genocide studies; not fully forgotten, and yet not elevated and acknowledged in the same sense as Rwanda, Cambodia, or Bosnia due to these aforementioned factors.

The second strand in critical genocide studies interrogates the limitations imposed on the concept by the UNGC, most concretely the list of groups which can be understood as subject to genocide. This narrow list—national, ethnic, racial, or religious groups—has been subject to a great deal of constructivist criticism. Scholars like Card (2003, p. 69) have argued that genocide is better understood as the destruction of “social vitality,” which can be observed in communities which do not adhere to the UNGC’s discrete categorization. Shaw’s (2003) work goes to the very roots of the typology with his argument that the victimized and perpetrator groups are generated by political violence, rather than predetermined by static identities. Much of the legal work analyzing the case of East Timor has come from this critical tradition, most notably the works of Saul (2001) and Lisson (2008). Saul and Lisson highlight the fact that the population of East Timor fell outside the UNGC protected groups during the course of the occupation, as Indonesia was successful in preventing the formation of a state. Both also come to the conclusion that pro-independence East Timorese were targeted not because of their ethnicity, nationality, race, or religion but rather as a political group. Where they differ is in their prescriptions about how justice can be provided to such victims: while Saul posits that a potential tribunal could include political or cultural genocide under its auspices, Lisson argues that “national group” should be redefined in the context of the UNGC to include not only groups with legal bonds of citizenship in an internationally recognized state, but any group which can claim the legal right to self-determination.

Pace Saul and Lisson, East Timor is considered by many scholars to fit “sociological” (rather than legal) definitions of genocide (Kiernan 2017, p. 108). For Ben Kiernan, director of Yale’s Genocide Studies Program and one of the preeminent scholars in the field, mass violence against the Timorese people is both a textbook case of “extermination” and a genocide. Kiernan has argued extensively that territorial expansion transformed the Indonesian anti-communist project from the “domestic political slaughter” of 1965 to “genocide of the Timorese” a decade later (Kiernan 2003, p. 50). Even Kiernan, however, subscribes to a realpolitik view of power which acknowledges both the severity of genocide and the inability of survivors to either put a stop to ongoing violence or access justice for past atrocities (Kiernan 2017, pp. 266–67). The absence of effective recourse in cases like that of East Timor has led other scholars to more thoroughly reevaluate genocide as a tenet of international law, resulting in the last strand of critical genocide studies.

The third strand goes beyond critiques of the UNGC and genocide’s politicization to address the more fundamental assumptions underlying the concept of genocide. By far the most substantial and ambitious scholarship in this tradition has been the work of Moses (2021), who advocates for discarding the genocide concept altogether. In his magnum opus The Problems of Genocide, Moses proposes moving away from debates surrounding “genocide” and focusing instead on the concept of “permanent security,” defined as “the striving of states, and armed groups seeking to found states, to make themselves invulnerable to threats” (1). This aspiration towards absolute safety, Moses contends, is both obscured by genocidal violence and generates it. Moses shows that the structure of the nation-state system itself lays the groundwork for genocidal violence, as states are imagined not only as political entities but as representative of a given culture or ethnicity. This idea—that a given people is housed within its own state—gives rise to what Moses calls “the language of toleration.” As he explains, a system of identity-based states “presuppose[s] that outsiders remain outsiders, foreign bodies in the body politic to be at best tolerated and, if they seem to develop their own collective will and are perceived as threatening, to be suppressed, expelled, or destroyed” (494). State sovereignty itself is thus imbued with “violent potential” through the politicization of minority groups (508).

While radical in many important ways, Moses’ work, we contend, suffers from a fatal flaw. Despite showing that it is the very foundation of international law—the nation-state system—which produces the mass violence defined as genocidal, Moses roots his prescription for “going beyond” within this same system. Given his own theoretical analysis, it is difficult to argue that the criminalization of permanent security under international law would not result in the same or similar issues to those which plague the crime of genocide: politicized application, limitations imposed through political negotiations at the time of the concept’s enshrinement, and re-entrenchment of the nation-state system. The real issue at hand is thus not the concept of genocide itself, but the very construct of the sovereign state which is embedded in a violently unequal system of imperialism, and in turn embeds violent and unequal systems within itself.

The case of East Timor exemplifies this dynamic as, uniquely among post-conflict international interventions, the mass violence which the international community sought to remedy in East Timor occurred not within the context of a civil war but rather during a foreign occupation directly aimed at impeding the territory’s process of self-determination. The historical trajectory of Timor-Leste is thus a particularly useful lens through which to interrogate both the politics of reconciliation processes following mass violence and the historical character of sovereign status within the international system. As contemporary Timor-Leste relies on the benevolence of the Indonesian state for support in the international system, including sponsorship for ASEAN membership and development partnerships, the country has refrained from leveraging the label of genocide since its independence, demurring from seeking recourse through international tribunals (both existing and potentially ad hoc institutions). Where its leadership once advocated for substantial economic reforms to remedy the legacies of colonialism, Timor-Leste now lives with the inequality produced both by formal colonialism and by the appropriation of resources by Indonesia during the occupation, refusing to pursue the material reparations recommended by its Commission for Truth and Reconciliation (CAVR).

Mass violence does not just create victims and perpetrators, as Mamdani (2001) has observed, but rather victims and beneficiaries, who continue to benefit from the unequal relationships entrenched by mass violence long after the killing itself has ended. In the case of East Timor, both Indonesia and its Western backers were beneficiaries of the extensive resource exploitation which took place during the occupation, and both Indonesia and its allies continue to benefit from Timor-Leste’s subjugated place in the international system. As we will expand on in the third section, international law not only fails to remedy the economic harm of mass violence but actually depends on such inequality to settle differing interpretations of legal norms and regulations. The normative framework through which genocide studies scholars tend to speak about international law obscures its more fundamental function as the organizational framework for an imperialist world order. In the next section, we outline the history of Indonesia’s occupation of East Timor and of independent Timor-Leste’s recourse thereof, showing how said recourse has been strictly constrained by the political realities of the international system in which Timor-Leste’s leadership must necessarily operate.

3. The Case of East Timor

3.1. The Conflict

In the early 16th century, the incursion of Portuguese traders and evangelists into the island of Timor marked the beginning of nearly four centuries of colonization. Following conflict with the Dutch, who controlled much of the archipelago of which Timor was a part, the two colonial powers signed a treaty which established Portuguese sovereignty over the eastern half of the island and Dutch control of the west. Indonesia’s independence in 1945 led to the transfer of Western Timor from the Netherlands to Indonesia, while East Timor remained under Portuguese control until the Carnation Revolution in April 1974 (Government of Timor Leste 2025).

As a primary consequence of the revolution in Portugal, the country’s overseas colonies underwent decolonization and the withdrawal of most Portuguese presence. In East Timor, the colonial governor established the “Timor Commission for Self Determination” in the territory’s capital city, Dili, and encouraged the formation of independent political parties. East Timor’s parties each advocated a different vision for the future of the territory: the Timorese Democratic Union (UDT) advocated for the continuation of political relationships with Portugal, specifically through “progressive autonomy” or a period of federation prior to independence, the Timorese Popular Democratic Association (APODETI) supported integration with Indonesia, and the Timorese Social Democratic Association (ASDT) argued for complete independence. Only UDT and ASDT had significant popular support among the East Timorese (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005b, p. 15). In September, ASDT renamed itself the Revolutionary Front for an Independent East Timor (FRETILIN), declaring itself the “sole legitimate representative” of the East Timorese” (27) and instituting both land and educational reforms including the expropriation of large coffee plantations (East Timor’s primary colonial export commodity) (Carey 2007, p. 6; Nevins 2003, p. 690).

The reforms, along with FRETILIN’s increasingly more radical anti-colonial rhetoric, fed into the Indonesian ruling elite’s anxieties that the events in East Timor could spark insurgencies in its own contested regions and added weight behind its arguments that an independent state would constitute a communist threat against the broader US-led security and economic interests in the region (Carey 2007, p. 7). Although UDT and FRETILIN managed to develop a broad-based coalition in early 1975, the alliance fell apart after only four months directly following a visit to East Timor by operatives from Indonesia’s military and intelligence service. In the interest of further hamstringing the Timorese independence movement, Indonesia instigated “Operation Komodo,” broadcasting local news and anti-communist propaganda from the border city of Kupang in West Timor to foster anti-communist sentiment within UDT and APODETI (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005b, p. 31) As early as August 1974, Indonesia had also begun arming and providing military training to APODETI, spawning pro-integration militias. In response, FRETILIN developed its own military front, the Armed Forces for the National Liberation of East Timor (FALINTIL) (25).

On 11 August 1975, relations between the Timorese parties completely collapsed with the outbreak of a short-lived civil war. FALINITIL emerged victorious and FRETILIN assumed de facto control of East Timor by early September. The Indonesian army (TNI) began engaging in frequent cross-border attacks, clashing with FALINTIL and seizing several towns near the border. Though FRETILIN had previously run an interim administration, repeatedly asking for Portugal’s administrative return in order to complete the decolonization process, the escalation of Indonesian incursion into the territory galvanized party leadership, and FRETILIN unilaterally declared independence on 28 November 1975. In response, the leaders of UDT and APODETI signed the “Balibo Declaration” declaring East Timor’s desire to integrate with Indonesia. This declaration has been the subject of controversy, with signatories testifying that they were surveilled and pressured by Indonesian intelligence forces throughout the drafting and signing process. Indonesia adopted the declaration as its administrative cover, with foreign minister Adam Malik stating that Indonesia would provide “total covert or open support” to the pro-integration Timorese (58).

Pre-dawn on 7 December, Indonesia launched its attack on Dili, committing multiple civilian massacres. The U.S., UK, and Australia-supplied airpower gave TNI a massive advantage against the under-resourced FALINTIL, and by March 1979 Indonesia had declared the entire territory pacified. Chega!, the final report by CAVR, characterizes the period from 1977 to 1979 as the “greatest humanitarian tragedy in East Timor’s history” (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005a, p. 83). The displacement caused by Indonesian attacks and the destruction of food sources by the military resulted in widespread famine. Displaced civilians who surrendered to Indonesian troops were placed into camps in which they were limited in their ability to grow or forage food and were supplied with little food or medicine. Those associated with FRETILIN/FALINTIL were often disappeared by the military, and other pro-independence civilians were exiled to Ataúro, a nearby prison island. During this same period, the Carter administration in the U.S. supplied more aid to Indonesia than at any other time in the nations’ histories, multiplying Indonesia’s original request for $25 million in military sales to instead supply over $100 million (Cristalis 2009, p. 112). Meanwhile, East Timor was completely closed to international presence, either by journalists or aid organizations.

Though the UN Security Council issued two resolutions (384 of 22 December 1975 and 389 of 22 April 1976) reaffirming East Timor’s right to self-determination during this time, neither resolution issued sanctions against Indonesia or even characterized the invasion as unlawful. In the General Assembly, the eight resolutions addressing East Timor from 1975 to 1982 each received less “yes” votes than the last. The 1979 resolution, the only one to buck this trend, contained zero mentions of Indonesia at all and no reference to East Timor’s right to self-determination or territorial integrity (Fernandes 2015, p. 4). Britain, France, and the U.S. supported none of the General Assembly resolutions, with the U.S. ambassador to the UN remarking in his memoirs in reference to this policy, “The Department of State desired that the United Nations prove utterly ineffective in whatever measures it undertook. This task was given to me, and I carried it forward with no inconsiderable success” (Moynihan 1978, p. 279). Australia, meanwhile, became the only state to recognize Indonesia’s sovereignty over East Timor both de facto (1975) and de jure (1979) (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005c, p. 30). The latter made it possible for Indonesia and Australia to begin negotiations on a treaty establishing a zone of cooperation in “an area between the Indonesian Province of East Timor and northern Australia,” the signing of which in 1989 allowed the two countries to jointly exploit the area’s undersea oil fields (Treaty on the Zone of Cooperation in an Area Between the Indonesian Province of East Timor and Northern Australia (with Annexes) 1989).

In 1997, the Asian Financial Crisis resulted in mass unrest in Indonesia and the toppling of Suharto’s authoritarian rule (Simpson 2008, p. 258). Suharto’s successor, BJ Habibie, instituted a series of reforms in the interest of recovering Indonesia’s international standing and on 9 June 1998, announced that East Timor would be granted a status of special autonomy. Six months later, Habibie announced that East Timor would be allowed to reject special autonomy, choosing in a referendum between autonomy within Indonesia and total independence. Following these two announcements, the Indonesian military began building up its remaining pro-integration militias in an attempt to repress the independence movement, resulting in multiple massacres of pro-independence figures and internal refugees. The violence was stemmed somewhat with the arrival of the United Nations Mission in East Timor (UNAMET) in May 1999, although the militias remained armed and sporadic attacks continued both against pro-independence activists and foreign installations like the UNAMET headquarters. Official Indonesian military presence also remained high, with units stationed across the territory. On 30 August 1999, 98.6% of the 451,792 registered voters turned out to the polls. Violence began in the days immediately following the vote, with attacks on ballot transport vehicles and independence supporters. After five days the votes were counted, with 78.5% voting for independence (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005b, pp. 143–44).

Mass violence broke out immediately following the announcement of the results. Both the militias and the official Indonesian military participated in the killings of over 1000 Timorese, as well as the displacement of over 550,000 people. 250,000 of those displaced were forcibly transferred to refugee camps in West Timor. Rape, sexual slavery, and torture were widespread. Precious artifacts were looted from the museum in Dili and 70% of all infrastructure in the territory was destroyed. The violence was only quelled with the arrival of the Australia-led International Force for East Timor (INTERFET) and the subsequent assumption of security and administration by the United Nations Transitional Administration in East Timor (UNTAET) (147, 151). During this transitional period, FRETILIN was reworked into a political party and FALINTIL into the official military. Citizens of East Timor participated in a national election to elect a Constituent Assembly on 30 August 2001, and the resultant constitution entered into force on 20 May 2002 (Government of Timor Leste 2025).

3.2. The Recourse

Since the 1999 independence referendum, there have been three separate fact-finding commissions on the occupation of East Timor: the UN-administered CAVR, the Indonesia-Timor-Leste Commission of Truth and Friendship (CTF), and the Indonesian Commission for Human Rights Violations in East Timor (KPP-HAM). War crimes prosecution has taken place at an ad hoc human rights tribunal in Jakarta and through a hybrid UN-East Timorese Court in Dili known as the Special Panels for Serious Crimes (SPSC). Both the fact-finding commissions and the tribunals faced difficulty due to non-cooperation from Jakarta and Dili, with Timorese leaders prioritizing reconciliation with Indonesia over reparations and individual prosecution. The tribunals also faced rousing criticism regarding both the failure to achieve stated objectives and their role in marginalizing Timorese perspectives in favor of international ethics, specifically the dichotomous understanding of victims and perpetrators which ignores the ways in which those labels can overlap in post-conflict societies.

CAVR has received by far the most international attention of the conflict resolution processes, as its funding by the UN and donor countries implied greater impartiality than the Indonesia-funded CTF and KPP-HAM. Its primary role was to compile an authoritative accounting of the violence, assigning responsibility for atrocities between FRETILIN, Indonesia, and Indonesia’s Western backers. Like other truth and reconciliation processes, CAVR also organized participatory justice mechanisms based on East Timorese customary law in order to promote domestic reconciliation. Analysis of CAVR’s impact has judged these reconciliation efforts to be its most significant success, as its more far-reaching recommendations failed to receive support from either Timor-Leste or the international community. Most important among these was the recommendation that both Indonesia and its main Western allies—Australia, the U.S., and Britain—pay reparations to Timor-Leste, a proposal rejected by the Timorese leadership (Nevins 2007b, p. 602).

CTF, as the world’s first bilateral truth and justice commission, had as its primary goal that the two nations “move forward in friendship” (Commission of Truth and Friendship Indonesia—Timor-Leste 2008, p. ii). Rather than performing its own investigation, the CTF drew much of its conclusions from data and interviews already compiled by CAVR and produced recommendations such as joint border security that were largely uncontested and would have occurred without its intervention. In short, as scholar Rebecca Strating has concluded, the CTF functioned not as a substantial instrument which could support justice and domestic reconciliation in East Timor, but rather as a “political mechanism” to enhance Indonesia and Timor-Leste’s relationship (Strating 2014, p. 252). Where CAVR did in many ways seek to facilitate domestic reconciliation, albeit hamstrung by the political realities in which the Timorese leadership found themselves, the CTF explicitly prioritized international reconciliation over the pursuit of justice for victims of human rights violations.

Although the UN’s International Commission of Inquiry on East Timor did recommend the establishment of an international tribunal in the style of the ICTY and ICTR, Indonesia rejected this suggestion and instead established their own ad hoc human rights tribunal, for which the KPP-HAM served as a preparatory mechanism (Amnesty International 2003, p. 3). Neither did Timorese leadership push for a true international tribunal, choosing instead to support the establishment of the SPSC in 2000. In the case of Indonesia’s ad hoc tribunal, observers from the International Center for Transitional Justice have written that the court was “a failure on every level.” The court convicted only six out of eighteen defendants, investigating none at a high command level, and was handicapped by a “lack of political will to enable a credible trial process” (Cohen 2003, p. 15). All convictions but one were later overturned on appeal—with the one sustained conviction being the only Timorese militia member on trial (Cohen 2006, p. 3).

The SPSC, handicapped by an unclear structure, limited budget, and minimal support from the Timorese political elite, fared little better. The SPSC filed indictments against 391 individuals, only 87 of which faced trial. Of those who faced trial, nearly all were Timorese militia members. Though the vast majority of those indicted were members of the TNI, the leadership of Timor-Leste refused to jeopardize their political relationship with Indonesia by pursuing extradition. The trials were widely condemned as falling short of international standards, with the limited funding and training accorded to the majority Timorese defense team leaving them woefully unmatched against the international prosecution. The panels, moreover, were each staffed with three judges—two international, one Timorese. This meant that the Timorese perspective was often suppressed. Linton and Reiger (2001, p. 196) provide an example of this phenomenon with regards to the question of duress, writing:

There is surprisingly little effort to establish what an accused means when he claims to have been forced to commit a crime, or the circumstances in which the accused say they joined the militia … when the sole East Timorese judge began vigorously pursuing a line of questioning to the accused about the links between the militia and the TNI, [it was] stopped by the presiding judge (Burundian). No reason was publicly given for the halting of that questioning.

The “major test” for the SPSC, as Gunn and Huang (2004, p. 35) write, came with the indictment and issuing of arrest warrants for eight high-ranking members of the TNI, including General Wiranto. In an act representative of their abandonment of justice processes, the Timorese leadership refused to deliver the warrants to INTERPOL or pressure Indonesia for extradition. Instead, the President of Timor-Leste, revolutionary hero Xanana Gusmao, flew to Bali where he participated in a photo-op embracing his “dear friend” General Wiranto (Cohen 2006, p. 2).

Analyses from legal scholars have generally concluded that the UN failed to accomplish even a semblance of justice in East Timor, with many contending that the divisions drawn between East Timorese and international staff in the SPSC have actually reduced local interest and trust in justice mechanisms (Strating 2014, pp. 143–44). Such critiques, however, have generally fallen short of advancing a critique of the historical and political role of international law at large.1 Instead, writers like Katzenstein (2003) have focused on the specific shortcomings of SPSC and lamented the failure of the hybrid tribunal model in the East Timorese context while advancing its adaptation for reconciliation in future venues such as Sierra Leone. These works overlook the imperialist systemic interests which drove both violence in East Timor and its failed reconciliation, and they leave us without a framework through which to address contemporary cases of genocidal violence and international intervention. In our final section, we situate Timor-Leste within the history of capitalist development, showing how the recent project of state sovereignty intertwines with international law to produce both mass violence and the justice mechanisms which fail to either prevent its outbreak or assuage its effects.

4. The Poisoned Gift of National Liberation2

4.1. Force Decides

Since the conclusion of the justice processes regarding Indonesia’s occupation of East Timor, the government of Timor-Leste has been the subject of foreign policy analyses lauding their choice to pursue reconciliation with Indonesia at all costs. As Della-Giacoma (2012) writes for the International Crisis Group, the magnanimous relationship between the two states can be chalked up to Timor-Leste’s decision to “trade justice for peace.” “In turn for not pursuing crimes against humanity against Indonesian perpetrators,” Giacoma proclaims, “Timor-Leste…gained a sense of equality with its former coloniser.” In this section we seek to interrogate Giacoma’s assertion, contending that the mutually constitutive relationship between state sovereignty and an imperialist legal system makes any true equality between colonizer and the formerly colonized, and for that matter between all states, impossible. Moreover, within a global system structured by imperialism, the dependence of populations which are subject to mass violence on international intervention to rebuild and structure their states embeds systems of inequality and prevents a true reckoning with histories of violence.

Though international legal relations existed in a proto- form since antiquity, governing relationships between polities or rulers of polities, international law only became truly universalized with the dawning of what Chimni (2017) calls “New Colonialism” in the 19th century. “New Colonialism” was characterized by the opening of markets in the colonies and the rapid industrial development of Britain at the expense of intensified labor and resource extraction in the colonies (487). At the same time, positivist law, predicated on sovereign authority, displaced naturalist law as the foundation of international jurisprudence (Anghie 2005, p. 33). As the colonial powers expanded their holdings, jurists used positivist law to justify and formalize the colonial relationship. Such constructions included terra (or territorium) nullius, through which territories inhabited by peoples whose social organization did not correspond to a “state” with sovereign power could be deemed empty, and therefore available for occupation by a sovereign European state (Anghie 2005, pp. 83–84). Colonialism and sovereignty thus shaped each other, generating a taxonomy between sovereign, “civilized,” Christian states which made up the international community which international law was seen to represent, semi-civilized states with which European powers negotiated profoundly unequal treaties, and the uncivilized states for whom recognition under international law remained wholly out of reach (Miéville 2005, p. 244).

At the very end of the 19th century, world order and international law underwent a fundamental shift with the dawning of the age of imperialism, predicated on the rise of monopoly capitalism and the division of territories that somehow still remained independent between newly empowered imperialist states. This penetration of the world by finance capital was fundamentally a legal process, directed through conferences and such constructions as the mandate system, drawing colonized countries into even more formal relationships under the auspices of a given sovereign state. This is what China Miéville identifies as the “universalising” logic of international law—it was necessary for states to acquire a formal status under international law, through which they could be incorporated into a global economy. This trend reached its apex with the end of WWII, at which point the organized resistance from colonized peoples and the contradictions inherent in a universalizing international law which differentiates the status of states reached a breaking point (Miéville 2005, p. 265). Indonesia, in 1945, was one of the first formally colonized countries to gain independence following WWII. East Timor was one of the last, with Portugal’s withdrawal from its colonial holdings representing the last major wave of sovereign independence.

The independence of Timor-Leste and Portugal’s other territories was therefore the culmination of a trend which had begun with the first conceptualization of law as structured on political sovereignty: the international system was now one of “juridical sovereign equality,” wherein sovereign states are both the “subjects and agents” of international law (Miéville 2005, p. 266). For many legal scholars, it is at this point when international law established itself as oppositional to the uneven development of imperialist capitalism, although inequality resulting from colonialism of course remained. States which are exploited or unstable, particularly when these conditions give way to mass violence, are thus spoken about as failures of international law—cases in which law’s emancipatory character has failed to overcome the residual effects of colonialism or an incomplete transition to territorial sovereignty. As Miéville argues, however, the fundamental character of law is not emancipatory at all. Although decolonization and self-determination unquestionably represent historical progressive development, the principle of sovereign equality itself embeds imperialist domination within the structure and functioning of international law.

The case of East Timor is a particularly useful one through which to articulate this point because support and lack thereof for Indonesia’s occupation, interrupting as it did East Timor’s process of self-determination, is illustrative of the politics of legal recognition within an imperialist international system. Following Indonesia’s invasion in 1975, there was an outcry among fellow Third World states, as well as East Timor’s former colonizer Portugal, regarding the illegality of Indonesia’s assumption of control over the territory and East Timor’s right to self-determination. By the 1990s, however, over thirty states which had previously advanced some rhetorical opposition to the occupation recognised Timor-Leste as a part of Indonesia (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005c, p. 21). This was not because Indonesia had made a stronger legal argument for its claims to East Timor. Its defense of the occupation (that it was filling a peacekeeping role and contributing to democratic decolonization) in fact gained little purchase outside its cohort of stringent allies. Instead, international acquiescence to Indonesia’s sovereignty over East Timor arose for reasons of Indonesia’s strategic importance—as a source of cheap labor, an anti-communist bulwark in Asia, the most populated member state of both ASEAN and the unaligned movement—and East Timor’s own perceived vulnerability to foreign influence as a potential independent state.

In the case of East Timor and Indonesia, Indonesia’s occupation continued despite the overwhelming international consensus that its presence in East Timor was illegal. Indonesia’s military dominance over the East Timorese resistance, as well as its backing by the most powerful states in the international system, meant that it was Indonesia’s interpretation of the law which won out from 1975 to 1999. When the tide changed, it did so not because the East Timorese representatives or their allies had succeeded in making a superior legal argument, but because Indonesia’s economy was so affected by the Asian Financial Crisis that it no longer had the international standing or the funds to continue exerting greater force within the territory of East Timor. This is illustrated by Indonesia’s admitted political logic in allowing the independence referendum in East Timor: with Indonesia’s reduced international standing and desire for IMF loans following the financial crisis, the country’s ability to back up their claims to the contested territories of East Timor, West Papua, and Aceh was substantially reduced. By releasing East Timor, Indonesia increased its chances of retaining control over Aceh and West Papua and reduced international scrutiny regarding its sub-imperialist practices as a whole.

4.2. Genocide?

Throughout the occupation and immediately following the post-referendum violence, opposition by East Timorese leadership construed in the language of genocide served as an appeal to the ideals of international law and an indictment of Indonesia based on legal principles. José Ramos-Horta, then FRETILIN’s Foreign Minister and the Permanent Representative of FRETILIN to the UN, used the term “genocide” throughout his international advocacy, writing in his 1987 book that “All available evidence points to one conclusion: Indonesia’s actions in East Timor amount to a crime of genocide as defined in the 1951 United Nations Convention on the Prevention and Punishment of the Crime of Genocide” (Ramos-Horta 1987, p. 175). In September 1999, he argued in a special session of the UN Commission on Human Rights, “In the face of the war crimes and genocide in East Timor, there should be no talk of compromise … Members of the Commission should not be able to look themselves in the mirror at night; if they did not act appropriately, they ran the risk of being accomplices to genocide” (Commission on Human Rights 1999). After independence, however, Timor-Leste’s leadership abandoned the language of genocide in order to foster their relationship with Indonesia. In 2009, during his first term as president, Horta stated that holding a tribunal on genocide and human rights abuses would be “like stabbing Indonesia’s leaders in the back,” and that the Timorese who supported such trials for Indonesian military leadership could “go elect a new president” (East Timor Law and Justice Bulletin 2009).

Although sovereignty provides states with a range of diplomatic, political, and economic options which they do not hold as occupied territories, political calculus such as Horta’s is an expression not of law’s subjugation to imperialism, but of the fundamentally imperialist character of law itself: as a weaker state, East Timor is juridically equal to Indonesia, but not materially so. East Timor’s evolution into the sovereign state of Timor-Leste and the consequent development of a domestic political elite actually ensured that its leadership would not advance their original interpretation of law—that Indonesia had committed genocide. Instead, Timor-Leste became juridically equal to Indonesia and thus engaged within the legal relations of international law, in which, as Miéville has argued persuasively, coercive force remains the deciding factor in the defining and interpretation of legal regulations. With Indonesia’s material dominance over Timor-Leste and the interest of Timor-Leste’s own leadership in integrating the country into ASEAN and other international arrangements, there was never any question regarding which state’s interpretation of the genocide question would win out.

The point that we have made in the preceding sections unfortunately becomes lost in critical genocide studies, which strangely enough remains steadfast in its fealty to find remedy through the legal form. Such a commitment has meant that even the most promising scholarship in the field has overlooked the true source of genocide’s politicization, unequal application, and ultimate termination in international intervention. Though mass violence is indeed less likely to be labeled as genocide if it is perpetrated by the U.S. or its allies, this is not simply due to the imperialist practices of the U.S. or character of international organizations. Neither are the limitations of the UNGC victim groups, imposed by the U.S., Great Britain, and the Soviet Union in the interest of shielding their own domestic practices from scrutiny, a product of these specific powers or even the Security Council system itself. Instead, genocide is simply one expression of the power which sovereign recognition and definition holds in international law. As such, it is not enough to develop an alternative concept which serves the same political ends, as Moses’ concept of permanent security unfortunately does. As Schmitt (1994, p. 202) writes, “With every decisive political concept the important thing is, who interprets, defines and uses it; who, through a concrete decision, says what is to count as peace and disarmament, what intervention, public peace and security is.” It makes less sense to criticize or replace a politically limited genocide concept than it does to interrogate the legal structure which allows for political limitations itself, and to hold up genocide as a key example of the limitations of an international law predicated on sovereign equality writ large.

4.3. Terra Nullius

The project of formal sovereign equality has undoubtedly faced pushback and attempted reconceptualization. By far the most significant of these is cosmopolitanism, which generally seeks to promote an international law above the state which can incorporate sub- and supra-national forms of organization into an international legal community predicated on moral principles and the protection of human rights. Humanitarian interventions, like UNTAET, are seen in this context as the precursor to a global liberal-democratic governance, centered on a Western-based system of moral arbitration. Alternatively, scholars interrogating the phenomenon of failed states have proposed that state sovereignty is, in a sense, overrated. Brooks (2005) argues that failing, failed, or “troubled” states might be better served by federation, assumption under a mandate-style system, or indefinite administration by the UN or other international bodies. The issue with both these proposals is that neither is actually an alternative: each accept both the economic (stable/prosperous vs. unstable/failing) and political (democratic/globalized vs. authoritarian/nationalist) divisions inherent in international intervention, and by doing so actually re-entrench the importance of sovereignty and its role as the legal manifestation of imperialism.

In order to truly move beyond sovereign equality and the imperialist dominance it engenders, it is necessary to reckon with and remedy the economic extraction which underlies the international system. This extraction—imperialism—occurs throughout violent occupation and is formalized through post-violence intervention. In the case of East Timor, Nevins (2003) examines how Indonesia’s incorporation of East Timorese coffee production under an Indonesian monopoly essentially forced East Timorese farmers to finance the occupying force to the tune of millions of dollars (690). Nevins further connects this analysis to the political manipulation of the international coffee market, which saw the incomes of coffee producers drop sharply in the 1990s with the rise of transnational companies and dissolution of the International Coffee Association (Nevins 2003, 2007a). These two factors have combined to engender extreme financial insecurity in post-independence Timor-Leste, in which 90% of non-oil income comes from coffee production and 20% of households depend on coffee to some degree. Coffee exported from Timor-Leste is sold internationally at discounted prices, resulting in a wealth transfer upward to middlemen and transnational companies (Ministry of Agriculture and Fisheries 2019, pp. 13–15).

Timor-Leste’s most important resource, however, is oil, and it is its potential for offshore drilling which has most shaped its economic relationships and the interest of Indonesia’s allies in seeing the territory incorporated into a reliably friendly state (Sidell 1981, pp. 54–55). Australia, which has a particularly close diplomatic relationship to Indonesia, is the primary example of such a dynamic: as early as 1976, the Australian department of defense reported that “ the Australian strategic preference…is now for the early integration of East Timor into Indonesia…[and] the continuation of Indonesia’s present operations to their planned conclusion” (Department of Defense Paper 1976, p. 693). By 1979, Australia had recognized Indonesian sovereignty de jure and begun negotiations on the Timor Gap treaty to establish its claims to the hydrocarbon reserves in the Timor Sea (Chinkin 1993, p. 207). Post-independence, as Fitzpatrick (2016) has demonstrated, overlapping land claims resulting from indigenous holdings, Portuguese colonial rule, Indonesian appropriation, and Timorese reclamation resulted in a convoluted landscape of property ownership which lent itself to the privileging of state land titles. Such titles have consequently been used to grant concessions to and extract rents from international investors, most notably the Australian company Santos, which manages the Bayu-Undan offshore oil and gas field. Timor-Leste has in turn established its Petroleum Fund, the majority of which is invested into international bonds and equities, particularly in the U.S (Scheiner 2021, p. 11).

It is dynamics like these which led to the CAVR recommendation that both Indonesia and members of the UN Security Council—particularly the United States, Britain and France—pay Timor-Leste financial reparations (Commission for Reception, Truth, and Reconciliation Timor-Leste 2005d, pp. 3, 42). International intervention and the structure of truth and reconciliation commissions, however, are unable to alter the global conditions of imperialism which actually engender international inequality. Disregarding the potential efficacy of material reparations, the fact remains that Timor Leste was, by nature of its position as an impoverished and vulnerable sovereign, unable to pursue even the limited reparations which CAVR recommended. Post-independence, Timor-Leste’s major problems have been economic in nature. With the depletion of the Bayu-Undan gas field, and the lack of investor interest in new oil and gas development projects, Timor-Leste is approaching a “fiscal cliff” (La’o Hamutuk 2025, p. 13). The state has borrowed extensively to support the construction of roads and a new international airport, but risks being unable to pay back these loans without the resources to replenish their sovereign wealth fund.

International intervention is not only unable to address both the domestic and international inequality which defines the post-conflict state’s character, it actually institutionalizes these dynamics by initiating the newly sovereign state into a global system of imperialism. Internationally funded and directed intervention, including peacekeeping missions, truth and reconciliation commissions, tribunals, and development advising, shapes the material, social, and legal landscape of the recovering territory. As Nesiah (2009) has argued, mass violence, particularly violence considered to be genocidal, creates spaces of political terra nullius, in which internationally directed intervention and reconstruction can occur free from the constraints of respecting state sovereignty or self-determination. “Just as colonialism would bring land classified as terra nullius into productive use recognized by European states,” Nesiah writes, “international intervention would draw countries overrun with violence into the community of nations so that they too can conjoin their futures with a universal progress narrative” (139).

UNTAET marked the first time that the United Nations had undertaken such a wholesale state-building project, assuming control over all the territory’s sovereign functions and constituting, in a sense, a UN state. This was a process which it underwent in concert with the World Bank, whose Trust Fund for East Timor (TFET) channeled over 177 million dollars into donor-directed development projects. Even post-independence, when bilateral donors could have provided grants directly to the Timorese government, most preferred to funnel their money through the TFET as it gave them more control over how the money was spent. The result was development projects which installed UN-devised plans and participatory mechanisms with little respect for or consultation with Timorese perspectives and histories. This is exemplified by the World Bank’s Agriculture Rehabilitation and Development Project, which ran from 2000 to 2002. Facing strong opposition from district-level administrators for its focus on increased commercialization and privatization of Timorese agriculture, the UN promised it would consider recommendations such as a safety net for those negatively impacted by its reforms and the privileging of domestic over international investment. In actuality, it ceased communication on the district level regarding the project and threatened several district administrators with firing if they publicly advanced their criticisms of the original plan (Neves 2006).

In the Project Appraisal Document for the agricultural project, the UN writes that Timor Leste “is starting life with a clean slate” (La’o Hamutuk 2000). As we have attempted to show, however, Timor Leste did not approach either law or economic development with a clean slate. Instead, Timor Leste ascended to sovereignty in a haze of violence, poverty, and injustice, and with preexisting historical systems of power, justice, and distribution. This treatment of genocide and broader mass violence as a cleansing mechanism by the international system serves to obscure the realities of violence as a mechanism of subjugation—one which international law and internationally directed development not only fail to counter but serve to legitimize. The lack of political investment in transitional justice mechanisms is symptomatic of a system premised on domestic elite formation and unequal economic exchange, which necessarily cannot privilege substantial justice over the entrenchment and expansion of itself. In short, as long as every population must aspire to sovereign statehood within the imperialism of international law, the world will continue to face the scourge and the problems of genocide.

5. Conclusions

Since its ascension to full independence in 2002, the leadership of Timor-Leste has necessarily undertaken the massive project of national development. Arguably, this project has succeeded in improving the situation of the Timorese population. In a 2022 interview, José Ramos-Horta for instance, claimed that in the 20 years since independence Timor-Leste has increased its national budget from 63 million to 3 billion dollars, its electrical infrastructure from negligible to 96.2% coverage, and its population of doctors from 20 to 1200 (Mendelson 2022). There are many significant issues, however, which this development has failed to surmount. Timor Leste’s urban–rural divide, the population’s dependence on subsistence agriculture, and an undiversified economy remain impoverishing and potentially destabilizing factors. Timor-Leste’s children, who make up a large proportion of its population, have one of the highest rates of stunting in the world (UNICEF Timor Leste 2018). Despite pressure from NGOs and observers, elite leadership has yet to spearhead a transition away from oil dependency and towards a sustainable and inclusive economy. As the country approaches its “fiscal cliff,” it is thus worth asking what exactly the Timorese traded justice for.

For Timor Leste, “peace” has meant a constant battle to surmount its own history, and a rush to embrace the very actors and interests which drove the mass violence within its borders. In this sense, it is not unlike many other small, post-conflict states, and the authors hope that this study can be further used as a model for analysis of the political and material character of other justice and reconciliation processes, such as those of Sierra Leone and Sri Lanka. As Mamdani (2001, p. 376) asks regarding the name change of South Africa’s commission on apartheid from Truth and Justice to Truth and Reconciliation, “If truth has replaced justice, has reconciliation turned into an embrace of evil?” Without substantial material and political change, weak states like Timor Leste will only find it more difficult to pursue justice for the atrocities committed by imperial and sub-imperial powers. This dynamic, however, means that it is even more important for critical legal and scholarly traditions to center and engage with the thorny and unfortunately persistent challenge of imperialism in not only analysis, but in prescription.