Lucia Withers
Impunity - literally exemption from punishment - is the status quo in Indonesia. One of the strongest legacies of the New Order era is that members of the security forces feel they can and do operate above the law. Since the fall of former President Suharto in May 1998 some tentative moves have been made to change this status quo but with little effect to date. This article examines the prospects for bringing an end to impunity, focussing on a recent case in Papua to illustrate the enormity of the task.
In February 2001, the Indonesian National Commission on Human Rights (Komnas HAM) announced it would establish two Commissions of Inquiry into Human Rights Violations, known by the acronym KPP HAM, one on Papua and the other on Aceh. The team on Papua was swiftly formed. Within weeks it was on the ground investigating the events of 7 December 2000, in which members of the police and the Police Mobile Brigade (Brimob) had detained over 100 people during raids on student hostels and other locations in Abepura, near the provincial capital. The police operation had been launched to find those responsible for an attack on a police station earlier in the day in which two police officers and one other person had been killed.
In its preliminary findings published on 10 April 2001, the inquiry team confirmed earlier reports from Papua-based human rights monitors that the victims of the police operation had no connection with the raid on the police station. Instead they appear to have been the innocent victims of police revenge. One person was shot dead during the raids. Another two people died in custody from torture and others suffered injuries from being severely beaten and kicked.
If, as the KPP HAM report seems to confirm, Indonesian police officers were responsible for extrajudicial killings, torture and arbitrary detention in Papua the previous December, what prospect is there that they will be brought to justice, and what significance could successful prosecutions in a single case in Papua have for human rights in Indonesia generally?
The answer to the first question currently lies more in politics than with the law. Over the past year the Indonesian government has put in place a legal framework intended to facilitate the investigation and trial of gross violations of human rights - namely genocide and crimes against humanity. Act 26/ 2000, adopted by the Indonesian parliament in November 2000, provides for the establishment of four permanent Human Rights Courts, in Jakarta, Medan, Surabaya and Makassar. Significantly, the Act also allows for the establishment by presidential decree (on the recommendation of parliament) of ad hoc, or temporary, human rights courts, to try cases of gross human rights violations committed before the legislation was adopted. This provision potentially paves the way to investigate and bring to justice perpetrators of the massive violations which have taken place in Indonesia over the past three decades.
Should Komnas HAM, acting under this legislation, find evidence that a gross violation of human rights has taken place, the Attorney General takes over the case and initiates criminal investigations with a view to bringing suspects to trial in a Human Rights Court.
The principle sounds good. However, in the current political climate sizeable obstacles block the way to justice. The December 2000 torture and killings in Papua is the third incident to have been the subject of inquiry by Komnas HAM under the new legislation. Investigations of the other two cases are said to be complete, but trials have yet to take place. There are mounting concerns that the cases may never come to court, or that if they do the process will be compromised.
A brief look at the chequered progress of the first case to have been investigated - that of crimes committed in East Timor during 1999 - gives a clue as to what can be expected in Papua and why. It was the international response to the shocking events of 1999 in East Timor which prompted former President Habibie to legislate for the establishment of human rights courts and commence an investigation. The KPP HAM into East Timor was formed under Komnas HAM's direction. In a hard-hitting report delivered to the Attorney General in January 2000, it declared that gross human rights violations had been committed. Possible suspects were named, including senior military and government officials.
After a two-month delay the Attorney General formed an investigation team which began work in April 2000. Consisting of officials from the Attorney-General's office, the military police, national police and the home affairs ministry, the team's composition led to doubts about its impartiality and indeed its competence to investigate highly complex cases of crimes against humanity. Its legal status was also open to question, because the legislation under which the investigations had been initiated had been thrown out of parliament in March 2000 to make way for a new and more comprehensive law.
The new legislation was slow in materialising. It was only on 6 November 2000, just eight days in advance of a visit to Indonesia by a delegation from the United Nations Security Council to check up on the progress of the investigations into East Timor, that the legislation was adopted by parliament. Although a great improvement on earlier drafts, it is far from perfect and must be amended if the new human rights courts are to deliver justice to victims while at the same time protecting the rights of suspects. Among the outstanding problems are the method of appointing prosecutors and judges and the lack of security of tenure for judges. Both of these expose the judiciary to political influence. Similarly, vesting parliament and ultimately the president with the authority to decide whether or not to form an ad hoc court for a specific past case brings the risk that political considerations could influence this decision. This was graphically illustrated on 23 April 2001, when a presidential decree approved the establishment of an ad hoc court on East Timor but only for cases that took place after the 30 August 1999 ballot. In one move, justice has been denied to the hundreds of victims of militia and security force violence in the months leading up to the vote.Among the other concerns is the inclusion of the death penalty, which flies in the face of international human rights standards encouraging its abolition and gives rise to fears of 'scapegoat' executions.
Protection of witnesses and victims is also not yet guaranteed. Act 26/ 2000 does include a provision for this, but a program has yet to be established. Without it the trials cannot safely proceed. The real risk of intimidation can be seen in Papua, where police have summoned witnesses and victims who spoke to the KPP HAM members.
There has also been fierce debate as to whether the legislation could be applied to cases which occurred before the legislation was adopted in November 2000. An amendment to the Indonesian constitution in August 2000 forbade the retroactive application of law. This was widely interpreted as a political move intended to block prosecution of past cases and thereby protect senior military and political elites still retaining influence. However, the crimes which come under the jurisdiction of the human rights courts are also crimes under international law. Regardless of whether or not they were codified in national law at the time that the crimes were committed, the state has an international responsibility to pursue judicial investigations.
Given all the foot dragging on East Timor, it was something of a surprise when on 21 March 2001 Indonesia's parliamentarians agreed to recommend to the president that two ad hoc human rights courts be established - one on East Timor and one on killings and disappearances which took place in the Tanjung Priok harbour area of Jakarta in 1984. The deputy speaker of parliament publicly admitted that they had taken this step to counter international attention and avoid international intervention in the East Timor case.
However, the president's decision to limit the jurisdiction of the East Timor court to the post-ballot period quickly dampened renewed optimism. It is still an open question whether the political will exists in Indonesia to see this process through.
Papua
The decision to proceed with the Abepura case may owe something to a high level of international attention. The events had been widely publicised by Papua-based NGOs and by the Swiss journalist, Oswald Iten, who witnessed police beating detainees while in police custody in Jayapura for an alleged visa offence. Komnas HAM's secretary general, Asmara Nababan, has also explained that this case was prioritised because it occurred after the legislation on human rights courts was adopted and therefore cannot fall victim to the argument on retroactivity.
This may be a smart move since, should there be sufficient evidence, the case should automatically be heard in one of the permanent human rights courts. As a test case, it could open the way to prosecutions of other cases of gross human rights violations which have taken place since November 2000, thus at least establishing a precedent of accountability for current cases. Moreover, the report of the inquiry team recognises that the Abepura case was not a one-off but part of a more general policy of repression in Papua both current and past. It thus looks beyond those responsible for committing the violations to those in positions of authority who ordered or tolerated them.
However, the Papua inquiry team is operating in an unreformed system. Witnesses have been intimidated and the police have proved uncooperative. Establishing mechanisms of accountability including a robust, independent judiciary is a long-term project which will require pressure and support - also from the international community - in equal measures. Each step will have to be fought for. Standards of justice cannot be lowered to accommodate judicial weaknesses - this would serve neither the needs of victims nor the wider aim of ending impunity in Indonesia.
Lucia Withers (lwithers@amnesty.org) is a researcher on Indonesia for Amnesty International. This article reflects the personal views of the author and does not necessarily reflect the position of Amnesty International.