Subject: JP: Crimes Against Humanity Must Be Heeded

The Jakarta Post June 19, 2001


This is the second of two articles on crimes against humanity by Vanessa Johanson, an adviser to the National Commission on Human Rights in Jakarta (Komnas HAM).

JAKARTA (JP): Extraordinary crimes require extraordinary responses. Thus, although of course murder, torture, rape, arbitrary detention and other such crimes have long been illegal in Indonesia, no matter whether they are perpetrated by civilians or state apparatus, the Human Rights Court Act was established to address the problem that when these crimes are carried out on a large scale, particularly by state functionaries, the perpetrators are almost never punished.

As Human Rights Watch states in reference to the Rome Statute, "Until recently, it seemed that if you killed one person, you went to jail, but if you slaughtered thousands, you usually got away it. Times change."

When the Human Rights Court Act was passed in Indonesia it seemed as if times might be changing. So where are the Human Rights Courts? The establishment and use of the Courts have faced a number of obstacles which must be overcome if Indonesia is to become a country which respects the rule of law, and where democracy is not continually undermined by violence, state-sponsored or otherwise.

Some of the obstacles are legal. Not long before the Human Rights Court Act was passed, the People's Consultative Assembly made a Second Amendment to the Indonesian Constitution which outlawed the hearing of any legal cases retroactively. For the Human Rights Courts, this means that violations perpetrated before the passing of the Act on Nov. 23, 2000, will be almost impossible to bring to Court.

This is true even though the Act allows for the establishment of Ad Hoc Courts for crimes which occurred before the passing of the Act, because defendants' lawyers will be able to claim that the Constitution is a higher law than the Act. This can be overcome, however, because crimes against humanity are recognized as crimes under international customary law, so that whether written or not, they are illegal everywhere and at all times, regardless of retroactivity provisions.

Another problem with the Act is its narrow jurisdiction in terms of the types of crimes it covers. It only covers "gross violations of human rights" which it defines as "genocide" and "crimes against humanity." As stated above, it omits to mention the other two crimes which are vital to thorough coverage of gross violations.

It also fails to mention violations which are not necessarily widespread or systematic (as they must be to be termed "crimes against humanity"), thus omitting the thousands if not millions of incidences of murder, rape, torture, arbitrary detention, kidnapping and so on carried out on an individual basis at police stations, military operations, prisons, demonstrations, homes, streets and forests all over Indonesia for decades.

Where will the victims of these crimes find justice? Certainly not in the regular court system which aside from remaining riddled with corruption and subject to political pressure, is also jammed with a backlog of thousands of cases at every level.

Crimes against humanity and other gross violations of human rights are regarded as crimes greater and worse than regular crimes covered in the Penal Code (and are therefore regarded as extraordinary crimes), and therefore do require a separate legal process. But when the Penal Code and Military Penal Code themselves are not upheld and impunity continues, the potential for regular crimes to become extraordinary crimes is enormous.

The main problem with the implementation of the Human Rights Court Act, however, is not legal but political. The Act provides for command responsibility, that is, not only does it hold the immediate perpetrator of a crime in the field responsible for his/her actions, but also his or her superiors and the policy-makers which commissioned the act or allowed it to happen by willful omission.

This has naturally rung alarm bells in the ranks of the Indonesian security forces, and prompted them to be less than cooperative and even actively hinder the preparatory work of the Human Rights Courts. During the investigations by Komnas HAM's Commission of Inquiry into Human Rights in Irian Jaya/Papua, for example, witnesses already interviewed by the Komnas HAM were then interrogated and intimidated by the local police, who also engaged in a public war of words on the legitimacy and competence of the Komnas HAM team.

Many of the cases likely to be brought to the Human Rights Courts are sensitive in terms of the concept of the Indonesian nation and are entangled in the current popular discourse of disintegrasi, a term used to describe the sense of the collapse of national unity, which in fact is more a metaphysical than a geographical collapse.

The East Timor case, for example, which is due to be heard in an Ad Hoc Human Rights Court in July, is sensitive not only because it implicates senior military and civilian personnel, but also because it stirs up anger and emotion about the separation of East Timor from Indonesia. In the minds of many, the crimes committed were justified in the name of the very meaning of Indonesia, that is, a sprawling but nevertheless unified nation. The myth of the military as the creators and unifiers of the Indonesian nation is also at stake.

Other cases threaten the national ideology in another way. The mass state-sponsored killings of supposed Communists in 1965, and the subsequent arbitrary detention of hundreds of thousands more accused of being Communists, are undoubtedly Crimes against Humanity on a large scale. However, legal resolution of this case remains extremely unlikely, as Communism remains illegal in Indonesia. As we have seen this last week with the police raid on an Asia Pacific Workers' conference in Jakarta, the imaginary threat from "leftist" ideas is increasingly once again being exploited for political purposes.

None of these obstacles are insurmountable in the new Indonesia. An international workshop to be held at the Attorney General's offices in Jakarta on June 20-21 on Crimes against Humanity will provide an international perspective on human rights justice in Indonesia. It will bring together a number of international and national experts to explore how to best overcome the above problems. It is hoped that with such a Workshop, the wheels of justice will begin to turn in Indonesia.

It is also hoped that Indonesia will be able to add new innovations to the international fight against crimes against humanity, for example by better incorporating violence against women and even looking at long term effects of development policies as crimes against humanity.

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