The Indonesian justice system is in crisis as former President Suharto's son, Tommy, is on the run from an 18-month jail term for corruption and notorious militia leader, Eurico Guterres, implicated in crimes against humanity in East Timor, is feted as a national hero. A new law on human rights courts has been passed, but may not be effective in dealing with past crimes. Meanwhile, there is growing concern about the UN's lack of commitment to criminal prosecutions in East Timor.
The new law on human rights courts was passed by the House of Representatives (DPR) on 6 November, just a few days ahead of a UN Security Council mission to Indonesia and East Timor. It was evidently pushed through in an attempt to persuade the international community that Indonesia is capable of handling human rights cases and to undermine demands for an international tribunal on East Timor.
Prosecuting past crimes
Much attention was focused on whether the new law would allow for the trial of those implicated in past rights abuses, particularly those associated with last year's violence in East Timor. A recent constitutional amendment – Article 28(I) – granted an amnesty to past abusers by introducing the principle of 'non-retroactivity' into Indonesian law without exception.
Nevertheless, Article 43 of the new law gives the President the power, on the recommendation of the DPR, to set up ad hoc courts to try cases involving past crimes, in apparent contravention of the amendment. Minister of Justice and Human Rights, Yusril Ihza Mahendra, insisted that Article 43 would be effective despite the amendment though the reason for his confidence is not immediately clear from the legislation.
An explanatory note appended to the new law argues that because ad hoc courts are for the protection of human rights, the restrictions imposed by the 'non-retroactivity' principle must be waived. In support of this argument, it cites another constitutional amendment – Article 28(J)(2) – which reads: 'In executing the rights and freedoms of every person it is necessary to waive any restrictions set forth in law for the sole purpose of guaranteeing the recognition and upholding the rights and freedoms of another person, in the interests of justice and in consideration of moral and religious values, security and public order in a democratic society.'
However, this amendment appears to be capable of waiving restrictions only in ordinary laws, which are subordinate to the Constitution. It is difficult to see how it can restrict another constitutional provision which is absolute in its terms. Article 28(I) reads: 'The right not to be charged on the basis of retroactivity is a basic human right that may not be breached under any circumstances.'
Lawyers acting for military officers accused of crimes in East Timor have already said they will use the non-retroactivity principle to save their clients from prosecution. A further amendment to the Constitution is likely to be needed if past cases are to be successfully prosecuted.
In any event, the highly politicised nature of the process is likely to protect senior officers from prosecution. The Attorney General, Marzuki Darusman, has announced that 22 military and police officers, government officials and militia members accused of human rights violations in East Timor will go on trial in January, but that remains unlikely so long as the military faction and its political allies in Parliament are involved in the decision to set up ad hoc courts, as provided for under the new law. TAPOL has already argued that this should be a judicial process and that decisions on whether to pursue past abusers should not be taken by politicians. The same applies to the appointment of personnel involved in the inquiry, investigation and prosecutions phases, which is also open to political interference under the new law.
It has been suggested by Asmara Nababan, the Secretary-General of the National Commission on Human Right (Komnas HAM), in response to a request for an inquiry into the 1965/66 killings, that Komnas HAM will not in future be able to set up inquiry teams to investigate past atrocities without a request by the DPR to the Government (Kompas, 21 November 2000).
TAPOL would question whether the new law goes this far. There appears to be nothing in the new law which requires the DPR to request an inquiry. The DPR has to recommend the setting up of an ad hoc court to hear a case of gross violations, but Komnas HAM is responsible for carrying out the initial inquiry. The law specifically states that the purpose of an inquiry is 'to identify the existence or otherwise of an incident suspected to constitute a gross violation of human rights...' (Article 1(5)). Unless an incident has been identifiedas a gross violation by a Komnas HAM inquiry, the DPR has no apparent authority to intervene.
In any event, it is difficult to see how the DPR could make an objective and properly-informed decision on whether to set up an ad hoc court without the findings of prior inquiry by Komnas HAM (and a subsequent investigation by the Attorney General as required by the law). It would be extremely regrettable if the DPR were to assume an effective veto over any inquiry into past violations.
Improvements don't go far enough
Otherwise, the DPR appears to have taken account of comments on the draft law made by TAPOL and other NGOs. Some welcome improvements have been made, but the law retains several defects. In particular, the DPR has taken the extremely regressive step of adding the death penalty as a possible sentence for certain crimes. It goes without saying that the death penalty must have no place in human rights legislation.
The new law includes an improved definition of 'gross violations of human rights'. There is now a requirement that crimes against humanity must be committed as part of a 'broad or systematic, direct attack on civilians'. In the explanatory notes to the law, a 'direct attack on civilians' is defined as 'an action taken against civilians in follow up of a policy of an authority or policy related to an organisation'. In theory, this should lessen the danger of crimes being passed off as ordinary crimes committed by soldiers and junior officers and increase the likelihood of investigations exposing the responsibility of senior officers and officials for rights violations. The definition of crimes against humanity now broadly follows that in the 1998 Rome Statute of the International Criminal Court ('the Rome Statute'), as does the definition of command responsibility. The fact that the DPR has followed international standards set out in the Rome Statute is encouraging.
The law includes new provisions on arrest and detention. These would appear to allow for a maximum period of 120 days (90 days for the investigation phase and 30 days for the prosecution phase) before a detainee is brought before a judge. In its 1999 report on Indonesia, the UN Working Group on Arbitrary Detentions noted that such delays were inconsistent with the right to a fair trial. However, another impediment to a fair trial, which would have allowed courts to conduct a trial in the absence of the accused, has been removed.
Despite these technical changes to the law, the process of bringing perpetrators of past human rights violations to justice is still dependent on a deeply flawed judicial system.
A complete overhaul will be required to ensure that professional, independent and impartial legal personnel are available to carry investigations, prosecutions and trials.
An example of the problems inherent in the current system is revealed in a report presented to the UN Security Council mission by a group of NGOs in West Timor. They allege that those arrested by the Indonesian police for the murder of three UNHCR workers in Atambua [see TAPOL Bulletin, No. 159, Aug/Sept 2000, p. 16] are 'stand-ins' and that the police have failed to interview a key witness who could provide evidence as to the identity of the real perpetrators.
The necessary changes to the justice system will take many years to complete. In the meantime, the arguments in favour of an international tribunal for East Timor remain irrefutable notwithstanding the passing of the new law.
UNTAET fails to fulfil its justice mandate
The demand for an international tribunal was repeated by the East Timor NGO Forum during its meeting in Dili with the Security Council mission on 13 November. The NGO Forum is alarmed that the prosecutor for serious crimes recently announced he has had to abandon plans to investigate the ten most serious crimes last year and confine his attention to just four cases due to a lack of resources. Without an international tribunal, there is little prospect that the chief perpetrators will face trial, the Forum says.
It cites the April 2000 memorandum of understanding between UNTAET and Indonesia regarding co-operation in legal, judicial and human rights-related matters, and points out that no transfer of suspects between jurisdictions have taken place as allowed for under the memorandum and none is expected.
The continuing delays in conducting exhumations and investigations are likely to result in evidence being lost, destroyed, damaged or becoming unreliable with the result that successful prosecutions will be impossible. Already UNTAET has been forced to release suspects who have confessed to murder and rape because of a lack of resources to pursue investigations.
The NGO Forum concludes that UNTAET, by not providing sufficient resources for investigations, is failing to carry out its mandate to bring to justice those responsible for war crimes and crimes against humanity. The problem appears to be not a lack of money, but the way in which UN money is allocated. The special crimes unit is run by the shadow East Timor government known as the East Timor Transitional Administration (ETTA) which is under-funded and under-staffed, lacking basic necessities, such as interpreters, transport and computers. Meanwhile the resources available for reconciliation and a possible truth and reconciliation commission, which come under the general UNTAET budget, are much greater.
A British police officer said: 'The majority of staff came here on the understanding that they would be investigating serious crimes to prosecute those responsible for attacks last year. While we accept that there is always going to be competing interests for resources, we are surprised that we have been here for six months and still, on a daily basis, we are fighting for basic equipment in order to function...we've had to beg steal and borrow anything we can do to ensure we finish the work.' [South China Morning Post, 14 November 2000]
While the NGO Forum also seeks reconciliation, it argues that bringing the perpetrators of war crimes and crimes against humanity to justice is an essential element of reconciliation. It calls on the Security Council to instruct UNTAET to reallocate substantial resources to criminal investigations. TAPOL fully supports the NGO Forum in this demand.