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From: JUSTICE AND ACCOUNTABILITY IN EAST TIMOR: INTERNATIONAL TRIBUNALS AND OTHER OPTIONS
Report of a one-day seminar in Dili, East Timor
16 October 2001
The Justice Process in Indonesia Regarding the Prosecution of the Serious Crimes Cases of Human Rights Violation in East Timor in 1999
By Nug Katjasungkana, Solidarity Forum for East Timor in Indonesia (FORTILOS) and Yayasan HAK
The attention of the international community towards East Timor was very great after the immense violence in 1999. The United Nations, as a response to the pressure of the UN Human Rights Commission and the UN High Commission on Human Rights, established a international investigation commission that among other things recommended the establishment of an International Tribunal to bring to justice those responsible for the violence. Hence thereafter the international attention weakened and the Indonesian government was entrusted to prosecute the criminals by itself. Is Indonesia capable to hold a just prosecution of those responsible for crimes against humanity in East Timor?
Before and after the "Popular Consultation" on 30 August 1999, which was held to determine the political status of East Timor, violence inflicted upon civil citizens of East Timor increased immensely. The UN Commission on Human Rights held a special session on 23-27 September 1999, which was the fourth special session ever held, since its establishment 50 years ago. This special session on East Timor brought forth a resolution 1999/S-4/1 which requested the UN Secretary-General to form an international commission to investigate with experts from Asia as members, and to work together with the National Commission on Human Rights (Komnas HAM) in Indonesia, as well as to send a delegate to report to East Timor. Prior to this, Komnas HAM in Indonesia had already produced a statement that included the following:
"... at that time the development of the situation of the lives of the people in East Timor reached a form of anarchy and the widely spread terrorist acts that were done by both individuals and groups, were witnessed by the security forces, and they did not intervene."
Following this, on 22 September Komnas HAM established a commission to investigate the human rights abuses in East Timor (abbreviated KPP-HAM). Its tasks were to gather facts regarding the human rights abuses in East Timor starting January 1999 until the date of the parliament regulation in October 1999, which verified the outcome of the Popular Consultation on 30 August 1999. The investigation was given the special task to find out whether the following might have happened:
KPP-HAM was also given the task to investigate the government authorities and/or other organizations. The legislation giving the KPP-HAM authority for this is law No. 39 year 1999 regarding Human Rights and the Government Regulation replacing the law No. 1 year 1999 regarding the jurisdiction of human rights. It gives authority to:
According to KPP-HAM international standards are being used in implementing their work, specifically the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions and the Guidelines for the Conduct of United Nations Inquiries into Allegation of Massacres. KPP-HAM has visited West Timor six times (including once when they dug up a victim which involved the work of a forensic expert) and has visited East Timor three times. KPP-HAM have interviewed 55 victims, 23 witnesses, and examinations of 45 people "who are connected to the human rights abuses" including Major General Adam Damiri, Major General Zacky Makarim, and General Wiranto. KPP-HAM also has held three meetings with the International Investigation Commission on East Timor, which was established by the UN.
In the final report, released on 30 January 2001, KPP-HAM states that the facts and evidence they have gathered give a strong indication that "serious human rights abuses" took place, and that they were "planned, systematic, and done on a large and broad scale". The serious crimes referred to are:
According to KPP-HAM all these actions are "crimes against humanity" (paragraph 60).
The evidence they gathered shows that "the civil administration and military authorities, including the police cooperated with the militia, which created a situation and conditions that encouraged actions of crimes against humanity, that were executed by civilians, the military, police, and groups of militia". (paragraph 63) This report also gives the names of the civil administration and military officers who are alleged to be responsible, from militia commanders, district administrators, sub-district military office commanders, even to the district commander and the Governor of East Timor. It is also mentioned that General Wiranto as the Joint Chief of Staff of the Indonesian military has to be held accountable.
In the situation of prosecution, important recommendations of KPP-HAM are (1) the Attorney General do an investigation of the persons who are suspected to have been involved, firstly those whose names are mentioned in this report, but it is not restricted to these names only, and (2) that the parliament and government of Indonesia form a special Human Rights Court to "try the human rights cases and the cases of crimes against humanity threaten national and international law (Human Rights and Humanitarian Law). Moreover, KPP-HAM also requests Komnas HAM "to do an overall investigation of all the violations of human rights in East Timor since 1975 -- for the sake of upholding truth and justice and for the importance of history."
These conclusions of the KPP-HAM are in accordance with the conclusions of the International Investigation Commission, which gave their report on 31 January 2000. This commission concluded that there were legal violations of human rights and international humanitarian rights, that the Indonesian military and police and civil administration officers were involved in supporting and organizing the militia violence. Moreover the International Investigation Commission recommended that an independent international investigation body would be established with the task of further investigation and identifying responsible people regarding these violations "including those who held commanding responsibility." The commission also recommended the establishment of an International Tribunal to bring to trial those people who are alleged to be the implementers of these crimes. Even though there is the recommendation for the establishment of an International Tribunal, the international world -- really: the UN Security Council, because it is this organization that has the authority to establish an International Tribunal -- gave more trust to Indonesia to bring to trial those responsible for these crimes in East Timor.
With the completion of the work of KPP-HAM, and entrusted by the international world, the ongoing process lies in the hands of the Indonesian Attorney General. The Attorney General holds the authority to decide on which cases and whom to prosecute in court. Here lie several important issues. Firstly, the attorney General’s Office doesn’t have enough capability and knowledge to deal with cases previously unknown in Indonesia, such as "serious violations of human rights" and/or "violations of international humanitarian law." The foundational law determining the accusations in this case, is law number 26 year 2000 regarding the special human rights court states that "serious human rights violations" include: (a) genocide and (b) crimes against humanity. Whereas what is meant by crimes against humanity are actions "that are part of a broad attack or are systematic and it is known that this attack is targeted directly at civilians through (a) killings; (b) annihilation; (c) slavery; (d) explosions; (e) invasions; (f) torture; (g) rape; (h) lynchings of specific groups; (i) forced disappearances of people; and (j) crimes of segregation (apartheid)." This understanding/definition of "crimes against humanity" is taken from the Statute of Rome chapter 7 regarding the establishment of a "High Criminal International Court."
The Attorney General’s office as the public prosecutor, has a difficult task to prove the "systematic", "planned", and "wide spread" nature of the crimes that happened in East Timor during 1999. It is of concern that these different crimes will become cases that will be handled by different teams of public prosecutors. In addition to that, their lack of knowledge of the general problems of the occupation of East Timor, will not show that the "systematic", "planned", and "wide spread" nature of the crimes will be the primary substance of the "crimes against humanity" in the accusation. This difficulty is increased by the problem of having the witnesses present to give their account in court, among other reason for the reason for safety.1
The second important reason is, that so far the Attorney General has not been independent from the government, and especially not in relationship to the Indonesian National Military (ABRI/TNI). In the human rights violations in East Timor, as expressed in the KPP-HAM report, persons suspected to have executed the crimes and who are to be held responsible for them, other than the militia commanders, are civil officers in the government administration and military commanders, even including the TNI Joint Chief of Staff (at the time, General Wiranto). It is very likely that the Attorney General will find it difficult to bring to trial the civil administration officials and even more difficult the military officers, especially by proposing that they are some of the highly suspected. Especially in the New Order Regime, the Indonesian National Military (ABRI/TNI) is the national body with the highest power among all the other national bodies, except for the presidency. The third serious problem is the incompetence of the Attorney General and the corrupt nature of the public prosecution body in itself .2
With these existing problems, one can assume from the beginning of August 2000 on, that certain names will be deleted from the list to be investigated by the attorney General. Also the fact of the tardiness of the Attorney General in pulling together the case to be submitted to the court. The cases which have been completed by the KPP-HAM on the 31 January 2000, according to the Attorney General their investigation was completed December 2000, however not even one file has been handed in to the court. This is because the court doesn’t yet exist.
This file mentioned above, which has supposedly already been compiled by the Attorney General, has to be submitted to Ad Hoc Human Rights Court. This court has to this date not been completely established. The legislation for its legitimisation was published on 8 October 1999 after President Habibie issued the government regulation No. 1/1999. This regulation was rejected by all the factions in the Indonesian parliament on 13 March 2000. Six months later, on 13 September 2000, the parliament passed law No. 26/2000 regarding the Human Rights Court. Based on this law, the Ad Hoc Human Rights Court can be established, upon request of the parliament, and the new parliament did request its’ establishment on 21 March 2001. Following this President Abdurrahman Wahid issued a presidential decree No. 53/2001 ordering the establishment of the intended court. Megawati Sukarnoputri who replaced Abdurrahman Wahid, who was overthrown by the parliament, issued a presidential decree No. 96/2001 on 1 August regarding the same issue, but that human rights violations in the jurisdiction of Liquiça, Dili, and Suai districts that happened during the months of April and September 1999 only would be investigated and prosecuted. This means that the only cases that will be prosecuted are the cases of the murders in the João Britto church in Liquiça, the killings in the house of Manuel Carrascalão (Dili), the attack on the residence of Bishop Mgr. Carlos Belo in Dili, the killing of the Dutch journalist Sander Thoenes in Dili, and the killings in the Ave Maria church in Suai. The killings in the police station in Maliana, the murders of the sister, friar, and Indonesian journalist Agus Mulyawan in Lospalos, many cases of forced deportations and killings, as well as other crimes will not fall under the jurisdiction of the Ad Hoc Human Rights Court.
Even though these laws have been passed in September 2000, up until now the establishment of this court is still in the process of selecting its judges. The establishment of this court is done by a team by the name of, Preparation Team for the Ad Hoc Human Rights Court, which was chaired by Benjamin Mangkoedilaga, a former judge known to be "clean". This team has already received over 60 names to be selected from to become the ad hoc judges. They come from universities in Indonesia who have focused their studies on human rights. Once this team finishes the selection process, they will submit the names of the candidates of the ad hoc judges to the president to be nominated. Once installed, they will receive training regarding human rights and other issues that will be needed. According to the plans, this court will be established and begin its work in December, in about two months. The judges for the ad hoc court will be chosen from outside, in response to the concern that this court will not be fair because the judicial system so far is known to have no credibility and be corrupt.
Should the court for human right violations in East Timor be called, there remains the legal problem of non-retroactivity of laws. In criminal law the principle rules that a criminal act can not be prosecuted, if when the act took place it wasn’t violating any laws. However, for the crimes that have been captured in the "crimes against humanity" principle, this (non-retroactivity) can not be implemented, remembering the seriousness of these deeds.3 The problem is that after the parliament amended the constitution, it added the principle of non-retroactivity into the constitution. Hence there is a legal discrepancy between the law on human rights and the constitution, which holds more authority, as it is the foundational law.
The largest difficulty is the political structure in Indonesia itself. The current regime is a "renewed" version of the New Order. Before the fall, the centres of power of the New Order lay with the Indonesian Military (ABRI/TNI), The Nation’s Secretariat (with a bureaucratic backbone), and the Presidential Palace. Agencies and judicial bodies were under those central powers. When Suharto fell, a sort of broadening of the power-base happened. Now both bodies of parliament have become a centre of power, because it now has the authority to elect and exchange a president.4 Hence, the Presidential Palace has been "opened" politically, because it no longer is a closed centre of power.
Moreover the Golkar party, as an extension of the political bureaucratic hands of the New Order, now has become a political power by itself which plays an important role in the parliament, because many of its members still control the government bureaucracy and hold large sums of money for their political activities.5 TNI still remains one of the centres of power, that formerly bowed to the president, but now has become independent from the president, but has now rather increased its’ political power. Especially because TNI still has a "representative" in the parliament who is not elected by the people and continues to keep territorial command at the province level (abbreviated as Kodam) down to the district level (abbreviated as Koramil) and has a representative (Babinsa) in each village. The political power of the military (TNI) has to be counted on, and in fact often times determines, as can be seen in the recent incident of overthrowing President Abdurrahman Wahid.
The largest obstacle for the Indonesian National Court of Justice is that the suspects of serious human rights crimes are Indonesian military (TNI) officers, who did their duty and fulfilled the TNI policy to succeed in winning the vote for autonomy. TNI is a very dominant element in the regime that is currently in power in Indonesia.6
Notes
1. Another important reason is the ‘traumatisation’ of the victims, resulting from the violence imposed on them by members of the Indonesian National Military (TNI) and anti-independence militias.
2. According to a prominent Indonesian attorney, Luhut Panjaitan, LLM, the recruitment pattern of the Attorney General which is full of corruption, has caused the persons that have been chosen for the attorney General’s position to be persons with low qualifications (because those qualified are all more inclined to choose their profession as attorneys) and the candidates mentioned above, take on corrupt cases to "get back" the money they already spent to bribe the selection process to become the Attorney General (taken from a private communication source).
3. Crimes against humanity refers a act which constitutes a crime against all of humanity, not against individual humans, also not only a violation of a national law. For crimes against humanity universal jurisdiction is valid, this means any nation in the entire world has the obligation to bring to justice once such a crime against humanity has taken place (See Statute of Rome: International Criminal Court of Law, Jakarta, ELSAM, 2000).
4. Although we now can not put our hope in the parliament, because the behaviour of the people’s representatives has until now not prioritised the process of democratisation, but has prioritised the short lived agendas of individual political parties.
5. Cases involving money from government departments used for Golkar political needs are becoming more and more transparent. But the prosecution thereof is still difficult to be done.
6. The Ad Hoc Human Rights Court itself is seen in TNI circles, including by General Wiranto, as a step to avoid the establishment of an International Tribunal. This is the reason why they will try and manipulate this court so that it won’t be effective -- because should the court not be fair the international community would still have the obligation to bring to trial the crimes that have happened. The fact that they were able to do such acts, is seen by their efforts to produce a winning result for autonomy in the Popular Consultation in 1999. Especially because the international world continues to give them their trust. The USA have shown interest to restore their military cooperation with Indonesia, which was stopped due to the violence in East Timor in 1999. This attitude by the US can be interpreted by TNI as support for them, and the same is valid for the attitude of Australia and the US regarding the military invasion of Indonesia in East Timor in 1975.
La'o Hamutuk, The East Timor Institute for Reconstruction Monitoring and Analysis
International contact: +1-510-643-4507, lh@etan.org
Website: www.laohamutuk.org