Source: www.dpr.go.id
Even so, the year 2009 marked a new peak for involvement of former pro- democracy and human rights activists, among them victims and relatives of victims of human rights abuse, in the political system either as parliamentarians or as government officials. Some victims of the 1997-98 enforced disappearances of activists, such as Pius Lustrilanang and Aan Rusdianto joined Gerindra, the party led by the person who was said to be the mastermind of their kidnappings, Prabowo Subianto. Some others,
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such as Andi Arief, campaigned for Yudhoyono‘s candidacy and were rewarded with special positions in the executive government.33
Parties also nominally incorporated human rights in their political platforms. A survey by the Setara Institute (2008) found that of the 44 parties competing in the 2009 elections, 24 explicitly mentioned human rights in their platforms. These included major parties such as the PDIP, the Golkar, the PD, the PKS, and the PAN (Partai Amanat Nasional, National Mandate Party), but also parties identified with past abuses such as Gerindra and Hanura. Some also had special divisions on human rights, with the PDIP, the PD, and the Golkar enlisting the help of former human rights activists to help them on the issue. However, in reality, these political parties did not demonstrate strong commitment to human rights protection, particularly in relation to cases of past abuses. By 2009, transitional justice had lost its significance to most mainstream politicians. In the words of a prominent human rights activist who was now in charge of the human rights division of the PD, ―Transitional justice has lost its momentum.‖34
2.5. Conclusion
In this chapter, I have tried to contextualise the transitional justice agenda of settling cases of abuses by the New Order regime within the broader setting of the political transition that took place in Indonesia after the 1998 reformasi. I have explained how the elements of both rupture and transplacement in Indonesia‘s post- Soeharto democratic transition in some ways supported, and in other ways hindered, the adoption and implementation of transitional justice measures.
33
Andi Arief was appointed as one of the commissioners in PT Pos Indonesia, and later was appointed as one of the President‘s Special Staff on Disasters.
34
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Such measures were adopted and implemented reasonably thoroughly in the early years of the transition, making these years a period of momentous change for human rights accountability in Indonesia. It was the rupture element of the regime transition that made this possible. The collapse of the New Order regime and of its legitimacy, meant that members of the old ruling elite needed to distance themselves from past abuses if they wanted to establish a political role in the new political order. This shift made the adoption of transitional justice measures a political necessity for many leading political actors.
However, as time passed and the tumult of the early transition faded, the element of transplacement became more prominent. Protests and disorder gave way to elite negotiations, gradual change and the settling into place of a new political order. In this period, transitional justice lived on, but more in form than in substance.
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Chapter 3
Prosecutions in Cases of Past Human Rights Abuses:
The East Timor and Tanjung Priok Trials
We demanded justice, and yes, we got the justice mechanisms through the ad hoc Court, but in the end, we didn‘t get the justice we wanted (interview with Wanma Yetti in Jakarta, 23 March 2012).
3.1. Introduction
This chapter discusses prosecutions of two sets of cases of gross human rights abuses through what were often called the ‗double package‘ (paket ganda) trials: the trials of perpetrators of absues in East Timor and Tanjung Priok. The first refers to a series of trials against those involved in mass violence following the 1999 referendum in East Timor. The latter refers to trials on a set of crimes that took place during Soeharto‘s New Order against residents of the Tanjung Priok area in Jakarta in 1984. Both trials took place through ad hoc courts that were established together in one policy package as a response to both national and domestic public pressure in the early years of the transition. Some of the perpetrators were found guilty; however, later all were acquitted in appeals. The prosecutors only tried persons who were directly involved in the violence and did not present officials in the chains of command to the courts.
In this chapter, I assess both the adoption of the trial strategy in these cases and the implementation of the trials within the framework of assessment that I explained in the first
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chapter. As argued elsewhere, and as I explain in greater detail in this chapter, the implementation of the trials was flawed in many ways (Cohen, 2003; Junge, 2008; Sulistyanto, 2007; Marzuki, 2012). These flaws lead me to conclude that trials for cases of past abuses have been problematically successful, in the sense that they were implemented successfully but with highly complex and problematic designs and processes. Given the implementation problems, many activists and researchers from the start predicted the result would be complete failure in bringing justice. Their predictions were ultimately proven to be correct.
Later in this chapter, after analysing the implementation of the trials, I explain the flaws by looking at how aspects of Indonesia‘s political transition both facilitated the adoption of the trials as a policy, but hindered their implementation. I argue that the trials were a response to international and domestic pressures for accountability. However, for the new elite, the trials were more than a moral imperative: trials were held to provide them with legitimacy and to allow the old elite, especially the military, to remain at the centre of politics. Trials helped the new leaders of the government in the early years of the transition to gain support from both the public and from the international community. Similarly, the military had to accommodate to the process since the institution had gained much critical attention for its violence during the New Order. However, the military was able to influence the trial processes and results, both individually and institutionally, by intimidating the judges and victims and providing alternative settlement mechanisms to victims. For some individual military officers, these efforts were necessary tactical concessions that allowed them to remain active in the new political context. This argument is in line with my main argument for this thesis, that is, that adoption and implementation of transitional justice measures were highly dependent on the nature of Indonesia‘s political transition.
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The first part of the chapter discusses the legacy of impunity in Indonesia. Despite policy and institutional reforms that have taken place since the 1998 Reformasi, impunity remains the country‘s greatest challenge in any implementation of transitional justice mechanisms. The discussion next turns to the first official attempts to hold human rights trials, and the formal legal base of these attempts, namely the 2000 Law on Human Rights Courts. The law was a product of creative legalism, combining the principles of justice and accountability with the political interests of the elite who were dominating the democratic transition. The next section discusses the background and implementation of ad hoc human rights trials for perpertators of violence during the East Timor referendum in 1999 and the massacre at Tanjung Priok in 1984. The fourth section compares the two trials, looking at their processes and outcomes. This discussion is followed by an examination of the political conditions that help explain the processes and outcomes.
3.2. Impunity: the Legacy of the Past Repressive Regime
Impunity has been one of the main legacies of Soeharto‘s military regime. Those who committed past abuses have never been seriously punished; instead, they were often rewarded with better career opportunities in the military. For example, four of the eleven members of the Rose Team (Tim Mawar) who were involved in the enforced disappearance of activists in 1997 and 1998 were they were found guilty as charged in a military tribunal and subjected to minor administrative punishments, but were late promoted in their careers in the Special Forces (Kopassus) (Kontras, 2007).
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In the amended Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, submitted to UN Commission on Human Rights on 8 February 2005, UN defines impunity as:
the impossibility, de jure or de facto, of bringing the perpetrators of violations to account—whether in criminal, civil, administrative or disciplinary proceedings— since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.
Adding to that, the document states that
impunity arises from the failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished, to provide victims with effective remedies and to ensure that they receive reparation for the injustice suffered, to ensure the inalienable right to know the truth about violations, and to take other necessary steps to prevent a recurrence of violations.
Impunity in Indonesia reflects the exact situation described in the above definition. The state, through its institutions, not only committed violence under the repressive regime but has not been able to bring about accountability and ensure the non- recurrence of such gross violations.
Accountability arises mostly as a direct result of trials within the legal system. Since reformasi started in 1998, Indonesia has made efforts in this regard. Several trials have been conducted of those who committed gross violations of human rights, mainly military and police officers.
There are three prosecution mechanisms for security officers who commit criminal and human rights offences. The first mechanism is through internal prosecution, which is commonly referred to as a military court or pengadilan militer. This type of trial is under the
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jurisdiction of the Supreme Court as regulated in Law No 14 of 1970 on Basic Provisions of Judicial Authority, updated in Law No 35 of 1999 the Amandment of Law No 14 of 1970 and also Law No 31 of 1997 on Military Tribunals. The Kontras (Komisi Nasional untuk Orang Hilang dan Korban Kekerasan, National Commission for Enforced Disappearance and Victims of Violence) analysed eight military trials on human rights cases that were held in the period leading to 2007.1 It concluded that the law and its implementation contribute significantly to a climate of impunity in cases of human rights violence. The trials did not allow victims and witnesses to give evidence before the court, and the whole process lacked transparency. Moreover, senior officers could intervene in the trials and intimidate witnesses. Moreover, according to Kontras, the Law on Military Trial contains many clauses that are contradictory to the Law on Human Rights and Human Rights Court (Kontras, 2009).
The second mechanism is commonly referred to as a pengadilan koneksitas, or a military-civilian court. These hold trials of either civilians or military personnel allegedly responsible for ordinary criminal offences. For cases related to human rights, there were two such courts established: one, in April 2000, for a trial on in relation to a massace of Tengkyu Bantaqiah and his students2 in Aceh , and one, in June 2004, the Kudatuli incident . The procedures and mechanisms for such trials are regulated in the Criminal Code (KUHP), articles 89 to 94.
Thirdly, are human rights courts which can try either security or civilian perpetrators of alleged gross human rights violations. Human rights trial can be ad hoc (for cases occurred
1
These cases were the 1997-98 enforced disappearances, the 1998 Trisakti shooting, the 1999 Semanggi II shooting, the 2001 enforced disappearance of members of Toyado village, Poso, the 2007 shooting of community members in Alas Tlogo, the 2001 Killing of Theys Hiyo Eluay and enforced disappearance of Aristoteles Masoka, the 1999 Beutung Ateuh Massacre in Aceh, and the 27 July 1996 incident: Kontras,
Menerobos Jalan Buntu, Kajian terhadap Sistem Peradilan Militer di Indonesia, Jakarta: 2009
2 Tengku Bantaqiah was a local Islamic leader who ran a pesantren (traditional Islamic school) in Beutong Ateuh, West Aceh. On July 1999, Indonesian military accused him of possessing firearms in the pesantren area, and on the 23rd of July military troops brutally fired on, and burned, the pesantren area. No less than 56 people died, including Tengku Bantaqiyah (Kusuma, 2007, in
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before the establishment of Law on Human Rights Court) as well as human rights court (for cases after the establishement of Law on Human Rights Court) as explained in Law No 39 of 1999 on Human Rights and Law no 26 of 2000 on Human Rights Court. Until today, Indonesia had had two ad hoc Human Rights Courts for the 1984 Tanjung Priok massacre case and the Timor Leste‘smass violence around the 1999 referendum. Meanwhile, there have only been one human rights court established, that is for the 2000 Abepura killings.
Komnas HAM named 137 perpetrators in its investigations for judicial processes in human rights trials. Out of this number, none was ultimately punished for the crimes committed, though some were punished on first instance, only to have their convictions overturned on appeal. The conviction rate is shown in chart 7. None of these trials prosecuted high-ranking military officers for any cases of gross violations. The Komnas HAM (Komisi Nasional Hak Asasi Manusia, National Commission on Human Rights)‘s investigations named some high-ranking military generals for their involvement within the chain of command, but none of these names were indicted by the Kejagung. Prosecutions only tried middle- to low-ranking military officials, and as shown in the graph, the eventual acquittal rate for human rights trials – after appeal – was 100 per cent.
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