Subject: UN Rapp on Violence Against Women - Report on Indon and ET (Pt.2)
Date: Tue, 13 Apr 1999 12:31:31 -0400 (EDT)
From: "Sharon R.A. Scharfe" <pet@web.net>

... continued from Part 1

UNITED NATIONS

ECONOMIC AND SOCIAL COUNCIL

Distr. GENERAL

E/CN.4/1999/68/Add.3 21 January 1999

Original: ENGLISH

COMMISSION ON HUMAN RIGHTS Fifty-fifth session Item 12 (a) of the provisional agenda

INTEGRATION OF THE HUMAN RIGHTS OF WOMEN AND THE GENDER PERSPECTIVE: VIOLENCE AGAINST WOMEN

Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy

PART 2

III. THE POSITION OF WOMEN IN INDONESIAN SOCIETY

A. General

21. The Special Rapporteur met with various non-governmental organizations and was struck by the extraordinary vitality of civil society and the women's movement, which has had the courage to speak out in the new era of reform since May 1998.

22. The Special Rapporteur recognizes the steps that the Government has already taken with respect to the promotion and protection of human rights, in particular the establishment of the National Human Rights Commission and the National Commission on Violence against Women.

23. The Indonesian National Commission on Violence against Women was established by the Government, on 15 July 1998, in response to strong protest from a broad spectrum of women activists/organizations at government passivity in the face of incidents of sexual violence during the May 1998 riots. It was founded on the basis of Presidential Decree No. 181 (1998), with reference to the Convention on the Elimination of All Forms of Violence against Women and the Declaration on the Elimination of Violence against Women. The objectives of the Commission are to (a) promote public understanding of all forms of violence against women; (b) create a conducive environment for the elimination of violence against women and defend the human rights of women; and (c) improve prevention of violence against women and defend the human rights of women. Its activities are directed towards empowering women and society in general, strengthening the capacities of organizations defending women against violence, and influencing the Government to take the necessary steps to create a conducive environment for the elimination of all forms of violence against women.

24. The Commission consists of women's rights activists, academics, medical professionals, religious leaders and human rights activists. Three of its members are male, while the rest are female. Its composition is interracial, with representatives from Aceh, Irian Jaya and East Timor.

25. Another positive recent development is the National Programme for the Elimination of Violence against Women, which has been incorporated in the National Plan of Action for Human Rights, 1998-2003. The programme includes: the compilation of statistical data on cases of violence against women; the establishment of guidelines for police officers on the investigation and temporary detention of women suspects, as well as minimum standards to be maintained in handling women prisoners in correctional institutions; and the development of gender mainstreaming programmes in all government institutions.

26. It is encouraging to note that, with the support of the State Minister for the Role of Women, the number of women studies centres has grown in both public and private universities, including teacher training institutes and public Islamic religious institutes. There are currently more than 70 women studies centres conducting research on the situation of women. These centres identify particular problems faced by women in their respective provinces and propose recommendations to the provincial management team. / Insan Harapan Sejahtera Social Science Research and Consultancy, Achie Luhulima and T.O. Ihromi, Sociolegal status of women in selected DMC's Country Study: Indonesia, February 1998, p. 70./

B. Legal Framework

27. The Government of Indonesia has been a party to the Convention on the Elimination of All Forms of Discrimination against Women since 13 September 1984 and submitted its combined second and third periodic reports / CEDAW/C/IDN/2-3./ on the implementation of that Convention to the Committee on the Elimination of Discrimination against Women (CEDAW) at its 377th meeting, on 2 February 1998.

28. CEDAW expressed its concern that the information provided on the situation of women in areas of armed conflict reflected a limited understanding of the problem. The Government's remarks had been confined to the participation of women in the armed forces and did not address the vulnerability of women to sexual exploitation in conflict situations, or a range of other human rights abuses affecting women in such contexts. CEDAW urged the Government to collect, as a matter of priority, data on the extent, causes and consequences of the problem of violence against women in Indonesia.

29. The ratification of the Convention is proof of the Government's political will to eliminate all forms of discrimination against women. However, commentators have expressed concern that as a consequence of the Ratification of the Convention on the Elimination of All Forms of Discrimination against Women and Clarification Act, which states that "implementation ... of this Convention must be adapted to the cultural and religious values that are embraced by the Indonesian people", / World Organization Against Torture, Violence against Women in Indonesia, June 1998./ patriarchal, cultural and religious values cannot be challenged by invoking the Convention.

30. The national laws of Indonesia contain provisions that are discriminatory towards women. In November 1998, the People's Consultative Assembly (MPR) passed 11 reform decrees unanimously; a twelfth was passed after a formal vote. In these decrees, which set out the principles of change during transition, the Government has agreed to reform the legal structure, focusing on laws that are disadvantageous to the situation of women. In this endeavour, the Special Rapporteur would urge the Government to ensure that all penal provisions are in full compliance with international human rights law and humanitarian law.

31. In theory every citizen enjoys equal status before the law and in government. The 1945 National Constitution guarantees every citizen equal rights and obligations in the fields of education, law, health, political participation and employment. / Insan Harapan Sejahtera Social Science Research and Consultancy, Achie Luhulima and T.O. Ihromi, Sociolegal Status of Women in Selected DMC's Country Study: Indonesia, February 1998, p. 17. / Furthermore, the Pancasila, or five core principles of the State philosophy, are: "1. Belief in the One Supreme God Almighty; 2. Just and civilized humanity; 3. The Unity of Indonesia; 4. Representative government and democracy; 5. Social justice for the whole people of Indonesia". / Ibid., p. 14./ Thus, all forms of discrimination against women violate both the 1945 Constitution and the Pancasila.

32. However, the de facto situation is that women remain unequal to men in terms of rights and opportunities because of a combination of traditional and cultural practices and certain laws that are contrary to the spirit, if not the letter, of the principle of equality. For example in the Marriage Law the role of husband and wife is clearly delineated. The husband is the head of the family, while the wife is the mother of the household. / Article 3./

33. According to the same law the husband is the provider of the family. Article 34 provides: "(1) the husband shall protect his wife and provide all necessities of life required in a family to the best of his ability; and (2) the wife shall manage the household to the best of her ability." If either the husband or the wife neglects his or her responsibilities, the other party may lodge a complaint with the court. / Article 34 (3). / Despite this division of labour, the Marriage Law explicitly stipulates that the rights and position of the wife are equal to the rights and position of the husband, both in the family and in society. Both parties to the marriage have full legal capacity. / Article 31 (1) and (2)./

34. At the time of the mission of the Special Rapporteur, domestic violence was not specified as a distinct crime under the Indonesian Criminal Code. Articles 351 to 355 of chapter XX of the Criminal Code set forth the general crime of and penalties for maltreatment, under which cases of domestic violence could be, but rarely are, prosecuted.

35. The police still regard domestic violence as a private matter and do not intervene. In most cases, law enforcement personnel are not responsive to the plight of women victims. In cases of rape and other forms of violence against women, unless there are witnesses, the police generally refuse to bring the case to court. The Special Rapporteur is pleased that the Government is planning to address these problems through both law reform and gender sensitization training for the police force in modern methods of dealing with incidents of violence against women.

36. Rape is defined in article 285 of the Penal Code, which states:

"Any person who, by using force or threat of force, forces a woman to have sexual intercourse with him out of marriage, shall, being guilty of rape, be punished by a maximum imprisonment of 12 years."

The legal definition of rape is limited to forced penetration of the vagina by the penis, and thus other forced sexual actions are not covered. The Special Rapporteur recommends a broader definition of rape to include acts beyond penile penetration, in order to stress the demeaning and violent aspects of rape, rather than its sexual nature, as spelt out in her first and third reports (E/CN.4/1995/42, paras. 172-189; E/CN.4/1997/47, paras. 17-43).

37. Article 287 of the Penal Code states:

"Any person, who out of marriage, has carnal knowledge of a woman whom he knows or reasonably should presume that she has not yet reached the age of fifteen years or, if it is not obvious from her age, that she is not yet marriageable, shall be punished by a maximum imprisonment of nine years."

The Special Rapporteur expresses concern that the emphasis is placed on the girl's conduct or appearance, which should under no circumstances constitute a defence.

38. Another cause for concern is the legal requirement that the testimony of rape victims must be corroborated. Article 185, paragraph 2, of the Code of Criminal Procedure states: "The testimony of one witness is not sufficient to prove that a defendant is guilty of the act of which he is charged". The necessity of corroboration puts the burden of proof on the victim and ultimately ensures that the victim is the one being subject to trial.

39. Punishment for rape under the Penal Code is lenient compared to other jurisdictions and any reform of the law should increase the punishment for rapists and other perpetrators of violence against women.

40. Neither the Penal Code nor other regulations or policies specifically regulate cases of violence against women perpetrated by the State. State perpetrators can be charged under civil or military law; investigations into allegations of human rights violations are normally conducted by the security forces themselves. The Special Rapporteur would urge the Government to undertake impartial investigations into any alleged violations, in order to prevent perpetrators acting with impunity. / World Organization Against Torture, Violence against Women in Indonesia, June 1998, p. 31./

41. The Special Rapporteur notes the need for the establishment of standardized law libraries and legal documentation centres in order systematically to collect all legislation and authoritative court verdicts.

42. In June 1998, the Government announced an action plan for human rights that included ratification of key human rights treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In the process of law reform, it must be ensured that all international instruments which have been ratified are incorporated into legal policies, laws and existing regulations of Indonesia.

IV. GENERAL FINDINGS

43. Before May 1998, rape was used as an instrument of torture and intimidation by certain elements of the Indonesian army in Aceh, Irian Jaya and East Timor. Since May 1998, the policy appears to be different. The Army Commander of East Timor assured us that rape by soldiers will not be tolerated and that perpetrators will be prosecuted. Nevertheless, the rapes continue. The Special Rapporteur has the names of four women allegedly raped by soldiers in East Timor since May 1998. It is still too early to assess whether the assurances of army officials will be implemented and rapists brought to trial before military tribunals.

44. Before May 1998, torture of women detained by the Indonesian security forces was widespread, especially in Aceh, Irian Jaya and East Timor. Among the methods of torture that were employed were rape of the detainee, electric shock treatment to ears, nose, breasts and the vagina, submerging in water tanks, burning with cigarette butts, detention in a room full of water and sewage, severe beating, being stripped and paraded naked, being tied by the thumbs from the ceiling, forced intercourse with other detainees, and other means of torture. Since May 1998, the Special Rapporteur has not received information about any cases of torture in custody by the security forces. The Special Rapporteur visited two women held in detention by the police since a violent incident in Alas in East Timor. Though they seemed frightened, the detainees did not show any signs of having been tortured. However, the Special Rapporteur did not talk with them alone.

45. During the events of May 1998 and the riots in Jakarta, there were many reports of rape of ethnic Chinese women. The Special Rapporteur's information corroborated the findings of the fact-finding commission set up to study the events. There was mass rape but the numbers are hard to determine since the Chinese community appears to be terrorized by the events and victims are reluctant to come forward. The Special Rapporteur spoke with victims, none of whom felt safe enough to report their cases to the police. The Special Rapporteur was also given video footage of the riots that show the military forces standing idly by as the riots continued, sometimes accepting drinks from the looters. Witnesses of these incidents corroborated the findings that the riots were instigated by outside provocateurs who invited the mobs to loot and destroy Chinese property. In addition, the events appeared to have taken place in different places at the same time. There is therefore enough evidence to suggest that the riots may have been organized. A thorough investigation of the riots is necessary and the perpetrators must be identified and punished. Unless this takes place, large segments of the Indonesian community will continue to live in fear and insecurity.

46. Victims and witnesses of violence, along with human rights defenders, continue to receive macabre death threats and anonymous letters and phone calls threatening their lives and the lives of their families, especially the children. The Special Rapporteur has a collection of these letters. They seem to be of two kinds. The first are letters to victims, witnesses and human rights defenders threatening them not to come forward and report crimes of violence, especially those that took place in May 1998. The authors of these letters threaten the recipients and their children with language that suggests that they know the daily routine of the recipients and their families. The brutal murder of Ita Martadinata Haryono, the daughter of a human rights defender, which police alleged was carried out by a neighbour, has sent shock waves through the human rights community and terrorized many human rights defenders.

47. The second type of anonymous letter is signed "Pribumi" ("indigenous") and is aimed at the Chinese population, threatening them with murder, rape and mutilation. These are racist letters meant to terrorize the Chinese community into remaining silent and leaving the country. These letters, along with the death threats mentioned in the previous paragraph, must be thoroughly investigated. It is imperative that the police and the prosecutors put an end to this terror, and victim and witness protection programmes should be developed to ensure the safety and security of victims, witnesses and human rights defenders.

48. After years of authoritarian rule, victims, witnesses and human rights defenders in Indonesia have very little confidence in the criminal justice system of the country. As a result, cases are not reported and the police and prosecutors conclude that there are no cases. Nothing could be further from the truth. There are many cases of rape and sexual violence, but people do not come forward. They are terrorized by intimidation and threats from anonymous individuals. They also lack confidence in the system and therefore feel that reporting crimes of this nature is a dangerous waste of time.

49. As a whole, the Special Rapporteur found the criminal justice system to be gender insensitive. Further, there is a certain denial culture that prevents effective enforcement of the law. With regard to the May events, for example, officials of the criminal justice system argued that cases were not reported and therefore rape must not have taken place. The Special Rapporteur met with victims of the riots and she is convinced that rape did take place. Lack of reporting stems from the distrust of the criminal justice system which has prevented women from coming forward. It is necessary that the police take a proactive role in making their institutions more accessible to female victims. Measures should be taken to make the police reach out to the community. In this regard, the Special Rapporteur welcomes the decision to distance the police from the army so that they may be able to earn the trust of the community by engaging in community policing.

50. Both army and police officials stated that, although there is some training in human rights for members of the criminal justice system, it is inadequate. They seemed to be enthusiastic about the possibility of technical cooperation training being conducted by the Office of the High Commissioner for Human Rights. This training in human rights would include detailed training on issues of gender rights and violence against women. The lack of training is probably one of the main reasons why the criminal justice system is seen to be insensitive to the rights of women.

51. The Special Rapporteur's discussions at the office of the Attorney-General also revealed the prevalence of a "denial culture": a refusal to acknowledge the magnitude of the events that have taken place. Again, reference was made to the fact that cases had not been reported. The prosecutors were not aware of any of the numerous cases of rape in Aceh, Irian Jaya and East Timor. Given the enormous challenge to law and order during the previous six months, there had been no prosecutorial initiative or any special attempt to bring perpetrators to trial. The Special Rapporteur was concerned at the reticent approach to the rule of law. A more dynamic approach by the Attorney-General's department is necessary, given the nature of the crisis facing Indonesian society.

52. In any culture, it is the judiciary that is the custodian of the rule of law. The Special Rapporteur regrets that she did not meet any member of the judiciary. The perception of members of the Bar, however, is that, since May 1998, the judiciary is beginning to assert itself. However, victims and human rights defenders were more sceptical: they felt that the judiciary in Indonesia is extremely passive and pointed out that it does not have a reputation for vindicating human rights. In addition, women's groups pointed out that the judiciary has been extremely lenient with regard to convicted rapists, sentencing them to imprisonment for a mere three months to one year. If the rule of law is to be revived in Indonesia, it is essential that the judiciary assert its independence. It is hoped that the technical cooperation programme being worked out between the Office of the High Commissioner for Human Rights and the Government of Indonesia will include a component of workshops and seminars for judges involving discussion of human rights in general and violence against women in particular.

53. The legal framework that operates with regard to violence against women is based on the Indonesian Penal Code. The Code, introduced by the Dutch under the civil law system, does not incorporate many of the changes that have assisted other countries in dealing with issues of violence. For example the rape law only speaks of sexual intercourse and not any other form of sexual activity, and requires corroboration, including the testimony of two witnesses. Though the woman does not have to prove absence of consent as in common law jurisdictions, the evidentiary procedure is still weighted against her. The Justice Department informed the Special Rapporteur that it is revising the Penal Code. It is important that it be changed to incorporate many of the standards advocated at the international level with regard to violence against women. In addition, Indonesia does not have specific domestic violence legislation or any provision with regard to sexual harassment in the workplace.

54. It is increasingly recognized that victims of violence against women need to be compensated and that they require support services. Especially in East Timor, Aceh and Irian Jaya, it is important that the Government set up a process whereby rape victims are compensated. In addition, there appears to be a need for more crisis centres where victims of violence can take shelter and receive legal counselling, vocational training and psychological counselling. A government-supported initiative, in partnership with NGOs, to establish such centres should be seriously considered.

55. The Special Rapporteur is also concerned that no attempt is being made to deal with the psychological trauma caused by violence against women. One of the ethnic Chinese victims she met was suffering from a serious mental illness resulting from her rape during the May riots. However, her guardians were too afraid to come out with her story. A victim from Aceh was suffering seriously from the physical after-effects of torture, as well as from depression. Most of the victims the Special Rapporteur met appeared to be in need of psychological counselling to help them cope with the violence in their lives. There is a need for a national mental health policy that addresses openly the psychological problems of victim-survivors of violence against women.

56. Much of the violence against women in Aceh, Irian Jaya and East Timor was perpetrated in the context of these areas being treated as military zones, which resulted in the subordination of certain civil processes. Rape by soldiers in these areas is tried in military tribunals and not before an ordinary court of law. As a result, the measure of independence necessary for the passing of judgement does not appear to exist. Civilian government should reclaim this space. Rape by a soldier may be a subject for a military tribunal, but it should also be actionable in an ordinary court of law. Given that very few cases are brought before a military tribunal, it is important that the normal courts, which are technically more accessible to victims, should also have jurisdiction.

57. The Special Rapporteur was constantly reminded that victims, witnesses and human rights defenders live in fear because of death threats and anonymous letters. The Government must make a firm and determined effort to overcome this realm of private terror. An effective witness and victim protection scheme is absolutely essential if the rule of law is to prevail in Indonesia. Criminal investigations of death threats and punishment of those who indulge in such activities are the only way to deter this kind of private thuggery. Such action should be initiated at the highest level with a national campaign against such practices, which appear to have reached epidemic proportions in the post-May 1998 era.

58. Another matter that requires attention is that of the children of Indonesian soldiers in the military zones of Aceh, Irian Jaya and East Timor. Some of these children are the result of rape, others are the product of situations that resemble sexual slavery and some are the result of consensual sex. The Special Rapporteur met some of the victims and their children. The women are having a very difficult time, not only because of poverty, but also because the sight of the children often reminds them of the rape. As a result, the children are often either abandoned or treated badly. Women's groups are working with victim-survivors, counselling them to accept their children. The Indonesian State should accept responsibility for assisting these women in the upbringing of these children. Such assistance could take the form of compensation or special privileges with regard to housing and education. Many of the women who were raped as virgins are single mothers who have suffered stigma in their communities after giving birth to children of Indonesian soldiers.

59. The other category of victims from Aceh, Irian Jaya and East Timor who deserve attention are widows whose husbands have been killed in the ongoing confrontation between the Indonesian army and the guerrillas. In East Timor there is a whole village called "Widow's Village". In Aceh, the Ministry of Social Services has begun a programme to help widows, but there are no similar programmes in East Timor and Irian Jaya. Widows whom the Special Rapporteur met appear to be in dire straits financially after the death of the families' breadwinners. Programmes for their empowerment are necessary if rehabilitation is to be achieved in the affected areas.

60. Although the Special Rapporteur was impressed by the activities of civil society groups, she was also convinced that Indonesia did not have a culture of human rights in its legal and political institutions. There is both a lack of confidence in the criminal justice system and an apparent lack of confidence in the transitional government. Civil society groups are therefore anxious to develop such a human rights culture. The institutions of the criminal justice system have to be retrained and the mass media has to be called on to spread human rights values throughout the society. Courses on human rights should be included in school and university curricula. Further, there should be research on the human rights aspects of civil life so that effective policy can be formulated.

61. Women's rights in Indonesia, especially those related to violence against women by the State, are greatly dependent on the development of a democratic society. The truth and reconciliation necessary to establish accountability will not be possible in the absence of democratic norms. However, they are unlikely to be achieved unless the boundaries between political and civil society on the one hand and the military on the other are more clearly demarcated. The military must withdraw from its political and civil role if democracy is to prevail in Indonesia. A human rights culture cannot emerge within the contours of a militarized State.

... continued in part 3 ...


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