Indonesia: Impunity Versus Accountability For Gross Human Rights Violations

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This report reviews Indonesia’s unimpressive record in bringing to justice those responsible for gross human rights violations. Since May 1998 only four major cases have resulted in convictions. In three of those cases there are significant reservations about the process. While there have been high level inquiries for other major cases, and additional trials may result, other instances of blatant violations from the distant past to the present have not been touched.

One reason for slow judicial progress has been the inadequacy of the legal system. The need for new procedures to deal with gross violations was treated with urgency only after huge international protest over the murder and destruction that followed East Timor's vote for independence. A number of new laws and mechanisms ­ examined in detail in the report ­ have now been created, raising the possibility that Indonesia will make further progress at a faster rate. The stakes are high. If Indonesia does not use those laws vigorously, and against some senior military and civilian officials, not merely subordinates, it will convince many that they enjoy impunity to continue human rights abuses. And it will convince victims, particularly in Aceh, Papua and Maluku where rising tensions threaten Indonesia’s stability, that the state will not protect them.

This report confirms the experience of other countries in transition that bringing perpetrators of gross human rights abuses in Indonesia to justice will remain as much a political issue as a judicial one and that only a handful are likely to be held to account either by judicial means or other formal processes such as a Truth Commission. This is the direct result of the inability of the civilian government to exercise full authority over the armed forces. But the report also demonstrates the bona fides of some Indonesian government leaders in pursuit of both judicial and political accountability, just as it documents an overwhelming array of obstacles to their efforts.

Time alone will tell whether Indonesia is making the right choices about priorities and tactics in response to those obstacles. But as much as the government and key constituencies want to be left to themselves to decide, other domestic constituencies and the international community cannot readily accommodate the delays and uncertainties of the process. To be a cohesive nation, Indonesia’s institutions must deliver protection and justice to all citizens. The continuation of serious human rights abuses in parts of Indonesia is fuelling separatist tensions, making accountability for past abuses both harder and more important and leading many to question the capacity of the Abdurrahman government.

The international community has a particular obligation to ensure accountability for Indonesian perpetrators of serious crimes committed in East Timor in 1999. It has a more general concern for accountability because of its stake in democratisation and stability in an important country. This requires a higher degree of international engagement in Indonesian processes than might otherwise be normal or tolerable.

The prospect of an international tribunal to adjudicate serious crimes committed in East Timor was first raised within the UN in 1999, and judicial processes have been set in train by the UN administration in East Timor for the investigation of such crimes. This international interest and activity will continue to put pressure on Indonesia to set its own house in order. If handled judiciously, it will strengthen those in Indonesia advancing the cause of accountability, but the international community can not expect a quick, neat or comprehensive pay-off.

RECOMMENDATIONS

To the Indonesian Government

1. Amend the constitution to resolve uncertainties about retroactive prosecution for crimes of omission involving cases of gross violation of human rights.

2. Accede to the International Covenant on Civil and Political Rights.

3. Transfer authority to establish ad hoc human rights courts from the parliament and the president to the Supreme Court or another respected non-political body.

4. Avoid premature prosecution of the most senior military officers until the effectiveness of the new human rights laws has been established, but do not delay prosecutions in general.

5. Use prosecution of subordinate personnel to develop evidence for the prosecution of more senior officers and officials, in some cases offering immunity in exchange for testimony.

6. Utilise the ordinary criminal code as much as possible, in particular if uncertainties about the constitutionality of retroactive prosecution for crimes of omission are not resolved.

7. Adopt legislation as quickly as possible to make military personnel subject to civilian courts in criminal cases.

8. Co-operate fully with UNTAET in prosecuting human rights cases.

9. Investigate and, if appropriate, bring to trial in Indonesia military personnel and militia members living in Indonesia who are charged in East Timor.

10. Establish an effective witness protection program.

11. Give the National Human Rights Commission more resources to enable it to carry out its expanded role effectively.

12. Provide additional training in international human rights law to judges and prosecutors.

13. Ensure that the proposed Truth and Reconciliation Commission offers the victims of human rights abuse wide scope to have their voices heard.

To the International Community

14. Monitor and report regularly on Indonesia’s efforts to try suspected perpetrators of gross human rights abuses.

15. Monitor closely the movements of suspected perpetrators of gross human rights violations.

16. Devote significantly greater donor resources to judicial reform in order to assist the Indonesian agencies most vigorously involved in pursuing accountability for gross human rights violations.

17. Use both contacts with the military and carefully targeted restrictions on co-operation with it to sensitise senior officers to the broader implications of the accountability issue for Indonesia’s national interests.

18. Assist Indonesian groups that participate vigorously in the domestic debates on accountability to gain more access to information, including by releasing currently classified accounts of human rights abuses where these can be sanitised to protect sources.

19. Hold Indonesia to a timetable and criteria for continued progress in prosecuting those responsible for violence in East Timor and take up again the issue of an international tribunal if these are not maintained.

20. Pay particular attention to what is done about the most senior personalities named in the Indonesian Commission of Inquiry into the crimes in East Timor and, where credible evidence is available, help Indonesia flesh out the evidentiary record.

21. Deliver a clear message to Indonesia that if it fails to bring those responsible for gross violations of human rights in East Timor in 1999 to trial, pressures from domestic constituencies are likely to make it impossible for donors to provide the developmental assistance Indonesia needs, well before the last resort of an international tribunal again became an active issue.

22. Give more money to UNTAET’s Special Crimes Unit, upgrade the priority of its mission, and provide additional highly qualified personnel to staff its functions.

Jakarta/Brussels, 2 February 2001

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