This report gives an extensive analysis of the realization of the implementation of the right to the truth, the right to justice, the right to rehabilitation and security sector reform since 1998; or rather the lack of it.
ICTJ-KontraS: Derailed. Transitional Justice in Indonesia since the fall of Suharto
Below a summary of the report:
After the fall of Soeharto, Indonesia began a transition toward a more democratic society. The 13-year period of reformasi has traced a gradual decline, however, through three phases: momentous change, compromised mechanisms, and stalled reform.
1. Momentous Change (1998-2000)
The first wave of reformasi was accompanied by both continued violent upheavals in several regions and a clear political commitment to transitional justice (i.e., seeking the truth, punishing perpetrators, and ensuring nonrepetition). Indonesia was dogged by the outbreak of new and old violent conflicts in East Timor, Sampit (Kalimantan), Maluku, and Poso (Sulawesi). At the same time, high-level inquiries took place on mass violations committed in Jakarta during the May 1998 riots, Aceh, and Maluku, including official investigations, moves to create a TRC, and investigations into the crimes committed in East Timor in 1999. Komnas HAM spearheaded investigations into the East Timor incidents, marking the first time that high-ranking military officials faced interrogation by human rights lawyers and activists as part of a national inquiry that would lead to criminal trials.
Many of these developments took place under President Bacharuddin Jusuf Habibie, Soeharto’s vice-president and successor, and Habibie’s successor, Abdurrachman Wahid, who assumed the presidency in 1999. Wahid continued many of the reforms, removed some powerful generals from top military and civilian posts, and allowed the East Timor trial process to proceed. His impeachment on corruption charges in 2001 was, according to many observers, a backlash to his pursuit of human rights cases.
His successors Megawati Sukarnoputri and Susilo Bambang Yudhoyono became more cautious about confronting still-powerful figures from the Soeharto era.Between 1998 and 2000, the People’s Consultative Assembly (MPR), the upper house of the Indonesian Parliament, issued resolutions that set the stage for reform.
- Under siege by pro-democracy student demonstrations in 1998, the outgoing Parliament held a special session. It adopted Resolution XVII of 1998 on human rights that upheld human rights principles, and made commitments to ratify core international human rights conventions and to strengthen the mandate of the National Human Rights Commission.
- In 1999, the new Parliament passed the resolution TAP MPR IV of 1999 setting out state policy for the next five years. The resolution explicitly acknowledged that during Soeharto’s New Order regime there had been “fractured protection and promotion of human rights, demonstrated by various human rights violations, in forms that include violence, discrimination, and abuse of power.” This resolution further called for a “just solution” to the protracted conflicts in Aceh, Irian Jaya (now Papua), and Maluku, and committed the state to developing “a legal system that guarantees the supremacy of the rule of law and human rights based on justice and truth.”
- In 2000, the MPR issued the Resolution on Strengthening National Unity and Integrity, acknowledging past crimes and calling for a national Truth and Reconciliation Commission, with a mandate to expose abuses of power, investigate past human rights violations, and undertake a broad-based reconciliation program. Following a truth seeking process, the commission was to facilitate admissions of guilt, requests for and granting of forgiveness, rule of law, amnesty, and rehabilitation.
- Later in 2000 the MPR issued two decrees separating the military from the police, with the military to focus on defense and the police to maintain public security and order. The decrees noted that both institutions were responsible for respecting the rule of law and human rights. They also provided a scheme to phase the military and police out of politics and place them under greater civilian control.These resolutions by the country’s most powerful legislative institution, previously considered a mere rubber stamp for Soeharto, represented watershed moments in Indonesia’s transition. However, many of these resolutions did not reach their potential due to flaws in the design and implementation of enacting laws, and a lack of genuine support from government and military leadership.
2. Compromised Mechanisms (2001-06)
Despite the spate of broad policies, there was little progress in realizing these commitments. The second wave of reformasi was flanked by two deeply compromised mechanisms for accountability: the human rights courts and the national TRC, which was later eliminated by a Constitutional Court decision before ever taking shape. As discussed below, Law 26 of 2000, which provided for the establishment of human rights courts in several regions, contained major weaknesses and ambiguities. The trials that followed were a futile exercise in criminal accountability, with a final acquittal rate of 100 percent.In addition, during this period military trials and joint military-civilian trials (a separate jurisdiction) took place in a number of conflict areas in response to new abuses by military personnel in Aceh, Poso, and Maluku. These proceedings generally prosecuted only low-level perpetrators and delivered brief sentences, providing little justice, accountability, or transparency.
In 2005, the governments of Indonesia and Timor-Leste established the first ever binational truth commission with a mandate to examine the violations committed in Timor in 1999. This commission was heavily criticized, particularly for a bias toward the perpetrators through its power to recommend amnesty and rehabilitate those “wrongly accused.” Despite a seriously flawed mandate and implementation, the commission found that representatives of the Indonesian military, police, and government officials were responsible for crimes against humanity in 1999 in East Timor.
This period also saw two politically charged assassinations of human rights leaders, Theys Eluay in 2002 and Munir Said Thalib (Munir) in 2004. These killings highlighted the apparent return of covert operations in which the security forces were implicated, as well as continued impunity.
3. Stalled Reform in Jakarta (2007-11)
The next four years were characterized by the return of retired military commanders to the national political stage accompanied by continued foot-dragging on accountability for gross human rights violations. Although Komnas HAM continued to conduct credible inquiries and recommend formal investigations, prosecutors from the Attorney General’s Office (AGO) have either been slow to act or have refused to investigate altogether, citing lack of jurisdiction in the absence of an ad hoc court, incomplete documentation, and existing convictions by a military court of those identified by Komnas HAM’s inquiry.
Following the ruling of the Constitutional Court that overturned the TRC law, the government has prepared a new draft law that is scheduled for discussion by Parliament in 2011, but it has little political support.This stalemate in Jakarta has resulted in a number of initiatives outside of the nation’s capital. Victims’ groups continue to demand justice throughout the archipelago, and civil society groups in Aceh are pushing for a local truth process within the framework of the Helsinki peace agreement (Memorandum of Understanding between the Government of the Republic of Indonesia and the Free Aceh Movement (Helsinki MoU), August 15, 2005).
Women’s groups working with victims of 1965 and in conflict areas such as Poso, Aceh, and Papua, facilitated by the National Commission on Violence Against Women (Komnas Perempuan), are documenting state-sponsored gender-based violations.
A civil case in Washington D.C. has accused Exxon Mobil of complicity in the military’s human rights abuses in Aceh in 2000. In Australia, a coroner’s inquest has triggered a new investigation by the Australian Federal Police into the killing of five international journalists during military action in the East Timor border town of Balibo in October 1975.
As to reparations the ICTJ - KontraS report (2011) notes: "Laws passed during the reform period provide a legal basis for reparations, and in 2006 the Witness and Victim Protection Agency (LPSK) was created. However, once again, a lack of support and implementation has undermined legal reform and establishment of mechanisms. The agency has received only limited resources, making effective implementation of its mandate impossible. The rights that victims of gross human rights violations have to reparations have consistently been denied. One partial exception is the assistance provided by a reintegration agency established as part of the Aceh peace process to communities and individuals following the end of conflict in Aceh. However, instead of specifically targeting victims, the funds were generally distributed to communities in the form of development assistance. A significant opportunity to provide meaningful reparations to victims thus did not fully materialize. The agency also distributed an Islamic form of compensation known as diyat as a direct, one-off payment to a significant number of victims in Aceh. This provided a positive contribution, but again recognition of the circumstances of the violations and role of victims did not play a significant part in the implementation of the program."(p. 5-6)
With regard to measures taken in order to prevent the violations from happening again, the ICTJ - KontraS report notes on Security System Reform (SSR): "The reform period started with genuine progress in SSR, as the military separated from the police and gave up its formal political role, including a guaranteed quota of seats in Parliament. Although there was a rise in violence in the early years of reformation (1998-2000), the number of rights violations fell (with the notable exception of Papua), especially after conflicts in Aceh, Sulawesi, and Maluku gave way to peace and Timor-Leste gained its independence.
However, as in other areas of transitional justice, this initial progress soon slowed and then stalled. Indonesia has yet to achieve genuine civilian oversight of the military by the executive or the legislature. The lack of vetting means that security personnel linked to serious crimes, including personnel indicted by the UN-backed court in East Timor and even some convicted in Indonesian military courts, continue to serve, in many cases receiving promotions.
The absence of vetting cannot be separated from the lack of accountability discussed in the judicial proceedings section. Efforts to deal with the closed, ineffective military justice system by shifting jurisdiction to civilian criminal courts have failed due to resistance by the military and bottlenecks in the executive and legislative branches.
Finally, although many businesses previously owned by the armed forces have been sold, the military nonetheless failed to meet the 2009 deadline given by law to divest itself of all businesses, legal or illegal."(p. 6)
