On 7 September, the Indonesian House of Representatives passed a long-awaited Law on the Commission on Truth and Reconciliation ("the Truth Commission"). Human rights advocates are questioning whether this will be a significant step in the search for the truth about past rights abuses and whether it will satisfy victims' needs for justice, or whether it will simply reinforce impunity in the same way as Indonesia's ad hoc human rights court on East Timor.
It is important to acknowledge that despite the relative success of this year's parliamentary and presidential elections, Indonesia is undergoing a fragile transition from dictatorship to democracy. Improving respect for human rights and the rule of law is a long-term process in a country which has emerged from decades of authoritarianism. Allowance must be made for this in assessing the likely impact of transitional justice initiatives such as the Truth Commission.
Transitional justice
Transitional justice has many interrelated dimensions, which vary according to the country context. It normally involves the search for the truth about past abuses; the punishment of perpetrators; legal and institutional reform; the provision of restitution and rehabilitation for victims; reconciliation; and a move towards increased official protection and promotion of human rights.
For progress to be made, comprehensive strategies are required. They must address the need for: increased political commitment to the rule of law; a reduction in the power and influence of the military and its greater accountability to civilian authorities; the adoption of appropriate new laws and regulations; the improvement of the capacity and technical competence of judges and legal personnel; the eradication of judicial corruption; and the strengthening of civil society organisations, especially those involved in legal and human rights advocacy.
The need for justice is particularly acute in Aceh and West Papua. However, it is unlikely that progress will be made if the government continues to use repressive policies which deny space for credible investigations and prosecutions into past abuses.
Piecemeal approach
So far the Indonesian government appears to have adopted a piecemeal approach to transitional justice. This is evident from the experience of the aptly named ad hoc human rights courts for East Timor and Tanjung Priok. This approach does not augur well for the Truth Commission.
The flaws in the trials conducted by the ad hoc court for East Timor have been well documented. The main reasons for their failure were the lack of political will at the highest level and the influence of the military on the outcome of the proceedings. Particular problems arose in relation to the lack of independence and competence of prosecutors – epitomised by a prosecution request for the acquittal of one of the main suspects, Adam Damiri – and the inadequacy of protection for victims and witnesses.
Ominously for the Truth Commission one of the main features of the trials was the way in which the prosecution and defence comprehensively distorted the truth of what happened in East Timor. The violence was falsely portrayed as resulting from a struggle between two violent East Timorese factions in which the Indonesian security forces were essentially bystanders. Primary blame was directed at the UN.
The Tanjung Priok trials have also been criticised for continuing the cycle of impunity for perpetrators of rights violations.
Unsurprisingly, during the initial debates on the Truth Commission Law, the military/police faction in parliament objected to provisions designed to reveal the truth about past violations. A spokesman for the faction suggested that "the nation bury all hatchets in the past along with the truth, otherwise it would lead to a greater cycle of conflict" (Military Objects to 'Truth', Jakarta Post, 11 May 2004). At best, the Truth Commission can be only one of several transitional justice mechanisms. If complementary mechanisms, such as the ad hoc human rights courts, are ineffective, the Truth Commission is unlikely to succeed. And impunity, instead of being ended, will be further strengthened.
Test for Yudhoyono
The idea of a Truth Commission was initiated by the administration of former president Wahid. It was provided for in Law 26/2000 on Human Rights
Courts, the law under which the ad hoc courts for East Timor and Tanjung Priok were established. Law 26/2000 states that the "resolution of gross violations of human rights occurring prior to the coming into force of this Act may be undertaken by a Truth and Reconciliation Commission" (Art 47(1)). Many human rights advocates hope that one of the Commission's first tasks will be to expose the truth about one of the last century's most heinous crimes – the slaughter of hundreds of thousands of leftwing suspects following the rise to power of former president Suharto in 1965.
The Truth Commission was neglected by the Megawati administration until this year and it will now be a major test of the political commitment to transitional justice of the new administration under Susilo Bambang Yudhoyono.
Perpetrators favoured
Unfortunately, Yudhoyono's administration will have to deal with a Truth Commission Law which is seriously flawed. It has been criticised in Indonesia because it "leans too heavily towards the possibility of pardoning past perpetrators of human rights violations, and not enough toward rehabilitating and compensating their victims" (Towards reconciliation, Jakarta Post editorial, 8 September).
The Law is concerned only with gross violations of human rights as defined by Law 26/2000, namely genocide and crimes against humanity. There are particular problems with the provisions which deal with the possibility of amnesties for the perpetrators of such crimes. Articles 28 and 29 provide that in circumstances where the perpetrator and victim have agreed to reconcile, the Commission must issue a recommendation to the President to grant an amnesty. If the perpetrator admits wrongdoing but the victims or their relatives refuse to forgive him or her, the Commission can recommend whether or not an amnesty should be granted. If the perpetrator denies wrongdoing, he or she foregoes the right to an amnesty and the case will be referred to an ad hoc human rights court for trial.
Arguably, the Law should not include any provision for amnesty since it is concerned with crimes of such gravity that the appropriate course is for suspects to be tried in a court of law. A recent report by the UN Secretary-General, 'The rule of law and transitional justice in conflict and post-conflict societies' [S/2004/616], explicitly rejected any 'endorsement of amnesty for genocide, war crimes, or crimes against humanity'.
The provision for a perpetrator who denies wrongdoing to be referred to an ad hoc court could offend the principle that criminal laws (in this case Law 26/2000) should not be applied retroactively. However, the same problem was overcome by the ad hoc court for East Timor on the basis that the crimes in question (perpetrated in 1999) were crimes under international law at the time they were committed.
The new law's approach to reparation is anomalous and unlikely to provide adequate restorative justice to victims. Article 27 states that compensation or rehabilitation can be ordered only if the perpetrator is granted an amnesty. It is not clear what is supposed to happen in other cases although reparation can be ordered under Law 26/2000 for cases referred to an ad hoc human rights court. A government regulation on compensation, restitution and rehabilitation was issued under Law 26/2000 but was rushed through on the day before the start of the East Timor trials. It is not yet clear how it will work in practice. A similar regulation will presumably be required for the Truth Commission.
Amongst other things, it will have to clarify the extent to which the government is obliged to provide reparation (for an analysis of the right to reparation as applied in Indonesia, see Justice for victims should include right to reparation, Jakarta Post, 8 September 2004).
Justice paramount
The record of other Truth and Reconciliation Commissions around the world, particularly those in South America, is not altogether encouraging. Certainly, it is clear from past experience that there can be no reconciliation without justice. The Commission on Reception, Truth and Reconciliation in East Timor is regarded as a good initiative but there is concern that the Government of East Timor will be reluctant to implement what it considers to be politically sensitive recommendations when the Commission reports in the next few months. Furthermore, it does not and cannot address the paramount issue of securing accountability for serious crimes. This remains a major concern for Indonesia.