Sri Lestari Wahyuningroem
A colleague of Moncef Marzouki, the former President of Tunisia, who initiated the 2013 Commission of Truth and Dignity during its critical period of democratic transition, asked him, ‘If you were given another chance to settle the burden of past gross human rights violations, what might you do differently?’ Marzouki is said to have replied, ‘I would start with the trials of those who committed serious crimes under the authoritarian regime. Because if they had been tried beforehand, then the process of uncovering the truth and reparations for victims would not have been hampered as is the case in Tunisia.’
Almost a decade after his initial promise to settle past gross human rights violations in Indonesia, in January 2023 Indonesia’s President Joko Widodo (known as Jokowi) finally made his move. He had a few options. One was to provide support for the continuation of an already significant series of investigations undertaken by the National Commission on Human Rights (Komnas HAM) over the past 20 years, including reports on the Triskati shootings (2002) and 1965-66 (2012). He could have also ordered the overdue re-drafting of the Truth and Reconciliation Commission (TRC) Law as mandated by the Constitutional Court in 2006.
Instead, Jokowi established a new team, though it would not be starting from scratch. Named the Tim Penyelesaian Non-Yudisial Pelanggaran Hak Asasi Manusia yang Berat Masa Lalu (Team for the Non-Judicial Resolution of Past Gross Human Rights Violations, PPHAM) in August 2022, its members included academics, state officials, senior diplomat, a retired general, and former member of the intelligence service, and was tasked with following up on (clarifying) Komnas HAM's earlier investigation into past gross violations of human rights, but using a non-judicial approach.
From its inception the Coordinating Minister for Political, Legal, and Human Rights, Mahfud MD, painstakingly emphasised that the PPHAM would not replace the judicial process, which should have continued on from the Komnas HAM investigation. In his remarks on 11 January, Joko Widodo acknowledged and expressed remorse for 12 historical gross human rights violations, all of which were initially documented and investigated by Komnas HAM.
The response from civil society organisations, including Yayasan Lembaga Bantuan Hukum Indonesia (Indonesian Legal Aid Foundation, YLBHI) and Lembaga Bantuan Hukum (Legal Aid Organization, LBH), Komisi Anti Kekerasan dan Penghilangan Paksa (Commission for Anti Violence and Forced Disappearance, KontraS), Imparsial, and Amnesty International, was sharply critical, with questions immediately being asked about processes of accountability arising from the report and its recommendations. The question remains, does President Jokowi's acknowledgement bear any significance for resolving past human rights violations, especially in bringing to account those responsible for gross human rights violations committed by a repressive regime? Will the report handed down by the PPHAM bring Indonesia any closer to guaranteeing that such violations will not happen again?
Accountability refers to a condition where, as Grant and Keohane describe it, ‘some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met.’ In this case, there is a strong relationship between the power holder (government/military) and those who entrust those with the power (citizens) to carry out provisions agreed upon (in the form of legitimacy). Actors who wield power must, by implication, act in a manner consistent with accepted standards of behaviour, and be penalised if they fail to do so.
Regarding accountability for past human rights violations Kathryn Sikkink highlights three dominant models of accountability that countries have chosen: immunity or impunity; state accountability and individual accountability. Impunity simply means not imposing sanctions on those who violate human rights for various reasons. Usually, this model is based on the doctrine that the state and its apparatus have immunity against domestic justice, especially in foreign countries. In this case, the government's head of state has the primary duty to carry out state duties so that they cannot be bothered with lawsuits related to the works of office. World War Two, and the atrocities carried out by Nazi Germany with the Holocaust, and Japanese aggressions, saw this doctrine of immunity challenged and abandoned. The Nuremberg and Tokyo Trials marked a turning point for the initiation of individual accountability for those involved in war crimes and the approval of the Universal Declaration of Human Rights (UDHR) and its derivatives by the United Nations (UN). It is now accepted that the nation state can be held responsible for human rights violations.
The second model of state accountability subsequently emerged. Governments worldwide began to demonstrate their commitment to state accountability, primarily by establishing or ratifying various rules or laws. These rules work very well on paper but often fail to be implemented and do not impose sanctions on the state or the individuals responsible for implementing them. Even though the UN or other countries may impose sanctions on countries that commit human rights violations, including economic sanctions, in reality this has little impact. As a consequence, several international institutions, including the UN, began to specifically refer to individual responsibility in implementing human rights norms within nation states.
Between the 1980s and 1990s, the emergence of many repressive regimes was accompanied by gross human rights violations. Human rights activists observed that as long as the individual responsible for the violations is not held accountable, then there is no incentive to change behaviour or guarantee non-repetition in the future. In 1985, trials were held to prosecute Argentina’s military-political elite responsible for the enforced disappearances and torture committed by the military regime. Subsequently, across the world trials of state leaders were carried out, which Sikkink refers to as the 'justice cascade.'
Datasets compiled by researchers show that the trials of those involved in gross human rights violations have not disrupted democracy or the ongoing peace in that country. Dancy and Wiebelhaus-Brahm use the Transitional Justice Research Collaborative database, which has collected human rights courts from around the world since 1970, to examine concerns that human rights courts will undermine peace and democratic transitions. They found that processes in which amnesty (a pardon) is granted to perpetrators, positively impact peace, but only for a short period. Whereas trials (and punishments) of individuals involved in gross human rights violations were found to reduce the recurrence of conflict and violence in the long term.
Indonesia’s attempts at accountability…so far…
In Indonesia, in the past two decades, all three forms of accountability have been tried in some form. Impunity is the preferred option of the ruling elite. Still very dependent on the support of groups that perpetrated past human rights violations including those within state security agencies, political parties, mass organisations, as well as the business world, it remains the safest choice for post-Suharto presidents.
Indonesia has also engaged with processes for state accountability, ratifying many international covenants and imposing them in domestic laws. In what was seen at the time as a highly significant development towards this end, in 2004 the government passed the Truth and Reconciliation Commission (TRC) Law. After countless postponements by then President Susilo Bambang Yudhoyono, the establishment of the commission was delayed indefinitely following the Constitutional Court annulment of the Law in 2006. The annulment was the result of a judicial review submission made by human rights groups related to articles that guarantee amnesty for perpetrators of human rights violations. The Constitutional Court required that the government draft a new bill within two years, but to this day the parliament has not discussed a draft.
Another form of state accountability undertaken by the government in the past 20 years is the Truth and Friendship Commission (CTF), a bilateral commission between Indonesia and Timor Leste, established in 2005. In 2009 the CTF produced a substantial report into the 1999 Atrocities in East Timor with comprehensive recommendations. However, until now, no recommendations have been implemented by the governments of Indonesia or Timor Leste, indicating that state accountability remains intangible. The only ongoing process towards state accountability, even though it has faltered due to minimal support from the central government, is the Aceh Truth and Reconciliation Commission (Aceh TRC), which finally commenced in 2016 after a decade of lobbying.
The government has also supported attempts towards individual accountability as mandated in Law No. 26 of 2000 concerning human rights courts for cases of gross human rights violations after 2000. Trials were held for the 2000 Abepura shooting case in 2005 and, most recently, the Paniai case in 2022. For cases that occurred before 2000, two ad hoc human rights courts have been conducted: for the 1984 Tanjung Priok shooting, and for the extensive violence during the 1999 East Timor referendum. Across all these trials, 174 people were tried, but not a single conviction was recorded.
In the past decade, Komnas HAM has also conducted multiple investigations that would prepare the way for individual accountability for gross human rights violations. It prepared 12 reports for the Attorney General’s Office, none of which has been followed up. In his remarks when receiving the PPHAM Team's report in January, Mahfud explained this delay was due to a difference in approach, whereby Komnas HAM used a gross human rights violation approach and the Attorney General's Office used a criminal law approach. This mis-match in approaches is not new. Both state officials and human rights practitioners have acknowledged this problem for some time, and both approaches are mandated in separate laws. What remains missing is government leadership to find ways to reconcile this difference, so that human rights violations can be resolved through retributive justice via the courts. In short, of all the initiatives so far attempted in Indonesia to bring accountability for past gross violations of human rights, impunity remains an option and the state has failed in its commitment to provide a viable process.
A surprise acknowledgement
Only four short months after it was formed, the PPHAM team managed to compile a report and deliver a list of recommendations to the president. The procedure it used (based largely on the existing Komnas HAM reports) appears to be legally questionable because the initial report was prepared in a format intended for use at trial and therefore remains confidential. The PPHAM team stated it carried out clarification processes in order to find a format for recovery for the victims. These processes occurred behind closed doors. Likewise, the criteria for the victims selected for involvement in these meetings remains unclear, nor is it clear what was clarified or what additional information, if any, was sought. The PPHAM’s full report was not made publicly available, with only an executive summary accessible. In processes of truth seeking, at the very least answers to standard questions of who, what, where, how, and why should be a fundamental part of the process itself. This is not a simple process, but requires a quantifiable and transparent method, that opens up space for the participation of victims. More importantly, the public needs to have access to the findings of such investigations.
The limitations imposed on the work of the PPHAM (lack of time, transparency, methodological scrutiny) means that as a consequence, firstly, the legitimacy of the victims was not the main requirement for this process, and secondly, the public received no information about the truth that was obtained from this process.
If seeking the truth was its goal then PPHAM has fallen short. At best this is a short cut to a quick solution towards fulfilling Widodo's 2014 campaign promise to deal with Indonesia’s human rights record. Nonetheless, PPHAM can still be appreciated as an initiative of some significance. The President of the Republic has now acknowledged past gross human rights violations documented by a state institution, namely Komnas HAM. Acknowledgement may also be a first step towards reparations for victims. Even though the reparation initiative already exists by the Witness and Victim Protection Agency (LPSK), this program is still limited and only includes medical assistance. Recognition also has positive psychological and social impacts for victims and their families who have been forgotten and still often suffer stigma from their communities and society at large.
Politically, the status of the recognition remains very vulnerable. The release of the PPHAM’s report and the president’s accompanying statement came at a time when the government was under intense criticism over its issuance of a Government Regulation (PERPU) in place of a Job Creation Law. The PERPU bypasses the 2021 decision of the Constitutional Court, which canceled the Job Creation Law. Jokowi’s statement of acknowledgment of these past human rights violations diverted attention from the issue domestically and internationally. As a consequence, instead of bringing the public and key stakeholders along with him in support of the acknowledgement, it was met with widespread cynicism.
Legally, an acknowledgment that does not have a solid foundation of truth is also vulnerable to challenges from groups that previously supported the government. This includes conservative military and mass organisation groups that have rejected efforts to resolve past human rights violations. This vulnerability may also be exploited in the 2024 election campaign.
The PPHAM team report opens one door but simultaneously closes another. Of its 11 recommendations, the first is recognition from the head of state. This opens the door to reparations for victims, both individually and collectively. However, the recommendation needs to mention two settlement responsibilities that have been before the government awaiting action for some years already - follow-up trials and establishing a TRC. These two responsibilities are directly related to accountability, namely state accountability and individual accountability. If this element of accountability is missing, it will be challenging to fulfil the promise not to repeat it, as well as the need for the Indonesian people to learn from their past’s dark history. One element of state accountability that remains possible is reparation. The PPHAM’s recommendations emphasise reparations, both those made individually and collectively. The team’s reference to the importance of data collection on victims and building memorabilia based on historical documents as a pathway to reparations needs to be welcomed positively, however it remains to be clarified how the process will be carried out, because it requires concrete and measurable program commitments, policies and funding so that they are not trapped in empty promises.
Many of those whose lives have been irrevocably changed by the long list of gross human rights violations in Indonesia over the past almost 60 years, are growing old. They have waited a long time for their suffering to be truly acknowledged and the reality is that time to make amends is running out.
Sri Lestari Wahyuningroem is a Fulbright Fellow at Carr Center for Human Rights Policy, Harvard Kennedy School, and Director of Center for Citizenship and Human Rights Studies, Universitas Pembangunan Nasional.