What is the situation of transitional justice in Indonesia? Has it been a success or failure, and how do we judge success or failure, including by taking into consideration the impact transitional justice has had on Indonesia‘s democracy? By success or failure, I refer partly to whether transitional justice mechanisms have completed their mandates and tasks as concrete ―deliverables‖ or outcomes. But we also need to look at the broader impacts on Indonesia‘s democracy.
The use of various transitional justice mechanisms around the world has in the last decade been followed by various attempts to assess and evaluate their effectiveness and impacts. Such assessment is needed by governments, donor agencies, international organisations, civil society advocates and scholars alike to help equip countries in transition with effective measures for settling past abuses.
Assessing the impact of transitional justice is not an easy task because transitional justice itself is a developing interdisciplinary field of inquiry. Duggan (2009), for example, acknowledges a number of challenges in assessing transitional justice methodologically, contextually, and politically. These include the complexity and unpredictability of the dynamics of democratic transitions, weak evidence of causality and problems of attribution, and dealing with traumatised victims and broken relationships within communities. All of these problems make it hard to assess the
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concrete results of transitional justice measures. However, various research efforts have been conducted and many of the findings suggest methods and criteria for assessment.
In general, there are three ways to assess transitional justice. Firstly, it is possible to assess each mechanism individually, that is by looking at its formation, legal basis, implementation process, mandates, and results or deliverables. For some, the simple fact that a particular transitional justice mechanism is put in place can itself be considered a success. Establishing such a mechanism is not a small feat because transitional justice typically faces considerable resistance from those who are likely to be investigated or punished (Brahm, 2005: 6). The REMHI project, as mentioned earlier, is an example. The project was an initiative to support the work of any truth commission that might emerge in Guatemala from the Peace Accords in Oslo in 1994. Church leaders assumed that an official truth commission would be limited in mandate and time due to the resistance of the parties involved in the conflict, so they gathered data and information through documentation project to contribute to such a commission. Bishop Juan Gerardi, the leader of the project, was assassinated outside his home two days after its report. Nunca Mas (Never Again) was launched on April 24, 1998. A Truth and Reconciliation Commission (Comisión para el Esclarecimiento Histórico, CEH) was eventually established in 1997. Its establishment was considered a success for peace and reconciliation attempts in the country. It eventually used the information collected in the REMHI project. The point is that even though the initial REMHI project seemed to bear little fruit, its long-term impact was considerable; any early assessment may have missed this.
Secondly, it is possible to assess a transitional justice effort by looking at how successful it was at achieving its aims. If the former approach focuses on procedural analysis, the latter focuses on more substantive aspects of transitional justice. An example can be seen in the results and outcomes of the Timor Leste‘s CAVR
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(Commission of the Reception, Truth and Reconciliation). The Commission established the truth about the crimes against humanity which had been committed during the Indonesian occupation in 1975 until 1999 referendum through its reports Chega (Never Again) in 2006 (Hayner, 2011)
Thirdly, it is possible to assess transitional justice mechanisms as an independent variable and to look at their impacts on other variables, especially democracy. Studies of the impacts of human rights trials on democracy have indicated a positive correlation. Single case studies such as the conducted by Akhavan (2001), and Meernik‘s (2005) statistical analysis of the International Criminal Trial for Former Yugoslavia (ICTY), look at the effect of trials on democracy and peace building in former Yugoslav countries but provide slightly different findings.8 Other scholars made comparative studies to test the effects of trials on democracy. Stromseth et al‘s (2006) qualitative study of the former Yugoslavia, Rwanda, Timor Leste, and Sierra Leone, argues that trials marginalised perpetrators but were less successful at promoting local judicial capacity and strengthening domestic support for accountability and justice. Comparing implementation of trials for human rights abuses in many countries around the world, especially Latin American countries, Sikkink and Booth Walling (2007: 427-445) found that holding human rights trials has not undermined democracy or led to an increase in human rights violations or conflict. They confirm that human rights trials correlate positively with democracy indicators as shown by the Freedom House database. A larger study of trials by Kim and Sikkink (2010) in 93 transitional countries between 1984 and 2004 confirms that countries with trials were less repressive and respected human rights better, even those civil war situations.
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Akhavan (2001) argues that ICTY‘s indictment was successful in marginalising ultra-nationalism and encouraging the emergence of moderate leaders. Moreover, it had positive effects on ethnic politics in Croatia and the integration of Serbia and Croatia into Europe. Meernik (2005), using statistical analysis to test the effects of international arrests and verdicts finds little impact on societal peace, however it had most effects to the strengthened roles of NATO and the US.
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In terms of truth commissions, Hayner‘s (2001) often-quoted study finds that truth mechanisms contribute positively to the quality of democratic change. Wiebelhaus-Brahm makes a similar argument in his comparative study of truth commissions in 78 countries around the world (Wibelhaus-Brahm, 2010). His database project with Dancy and Kim shows not only that truth commissions have become widespread around the world but also that they have positive effects on democracy (Dancy, Kim, and Wielbelhaus-Brahm, 2010). South Africa‘s TRC has become the model for many countries both because of its success and its limited nature. Borraine‘s (2001) book and Gibson‘s (2001) survey on the attitudes of South Africans toward their TRC find the TRC helped support the rule of law and reconciliation in that country. Other scholars conducting comparative studies on truth mechanisms also found positive effects on peace settlements (Long and Brecke, 2003) and levels of democracy (Kenney and Spears, 2005). Likewise, a quantitative study by Botha (1998) involving 56 countries in Eastern Europe, Africa, and Latin America, confirmed the positive correlation between truth commissions and certain measures of democracy.
An aspect of transitional justice mechanisms that is understudied is vetting or lustration. One study by David (2003) on Poland and former Czechoslovakia looked at the impacts of lustration policies in these countries on democracy and stability in their democratic transitions. Some other case studies have looked at this aspect, including an edited collection by Mayer-Rieckh and de Grieff (2007). The country cases show variation in how lustration or vetting impacts on democracy in countries in transition.
In evaluating the findings of such comparative studies of the effects of transitional justice processes on democracy, Sikkink and Payne (2014: 48-60) identify three positive impacts that transitional justice may theoretically have: deterrence, normative socialisation, and accountability-with-stability. The deterrence impact is adapted from both international relations and legal approaches, and holds that
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enforcement or implementation of transitional justice will increase the likelihood of justice and democracy by subjecting would-be perpetrators of rights violations to fear of punishment. The normative socialisation impact sees transitional justice mechanisms as ―high-profile symbolic and performative events that communicate and dramatize norms and socialize actors to accept those norms‖ (Sikkink and Payne, 2011: 49). Norm enterpreuners, including local NGOs and intrastate organisations, promote these processes of communication and socialisation. Eventually, such processes lead state actors to behavioural change. Sikkink (2011) explored the impacts of both the deterrence and normative socialisation in explaining why human rights trials have positive impacts on human rights practices, an effect she termed ―the justice cascade‖.
Meanwhile, Olsen, Payne and Reiter (2010) develop the accountability-with- stability impact by looking at more comprehensive aspects of transitional justice mechanisms. By developing several measures and indicators of transitional justice and relying on data from Polity IV, they set up a database that aims at testing various hypotheses coming from the abundant literature on transitional justice. 9 Their findings lead to an approach they call ―the justice in balance‖ approach. They suggest that any single transitional justice mechanism used in isolation will not lead to achievement of transitional justice goals but will worsen democratic outcomes. However, combinations of mechanisms, especially trials mixed with other mechanisms, are more effective. They thus recommend that transitioning countries should adopt a holistic approach to transitional justice involving sequential choices. Their analyses suggest two ideal sets of combinations: (1) trials and amnesties and (2) trials, truth commissions, and amnesties.
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The database project attempts to fill the gap between knowledge and theory building on politics of transitional justice by testing how three political factors affect transitional justice achievements: characteristics of predecessor authoritarian regime, the type of transition, and the nature of new democratic governance. A large number of studies have found the authoritarian regime factor to be the most determining factor on transitional justice choices.\ (Olsen, Payne, and Reiter, 2010)
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They say these combinations have had the most robust and positive effects on human rights and democratic outcomes. This finding resonates with an earlier study by Snyder and Vinjamuri (2003) on transitional justice in 32 post-conflict countries between 1989 and 2003. Snyder and Vinjamuri find that trials and truth commissions did not have much positive effect on democracy, human rights and rule of law, but well- designed and thoroughly implemented amnesties did.
In this research, I look at both procedural and substantive aspects in order to assess transitional justice in Indonesia. Whether transitional justice mechanisms succeed or fail in procedural terms determines the outcomes with regard to larger objectives and helps shed light on how the different transitional justice mechanisms might interact to produce wider effects.
In terms of procedural aspects, in assessing Indonesia‘s transitional justice experience, I look at the formation and implementation of each mechanism, including its legal basis, internal dynamics, and results or deliverables. Included in these aspects are also the access and involvement of victims and human rights groups, and other elements of civil society such as researchers and historians, based on the assumption that transitional justice processes should take place openly.
On the substantive aspects, I look at the outcomes of these mechanisms, relating each to the objectives and expectations that lay behind their implementation. These expectations, as Hazan (2006: 29) outlines, include the penal effectiveness of prosecutions and ―show trials‖, the production and presentation of ―truth‖, the therapeutic impact and effectiveness of public apologies, the effectiveness of reparations, and the process of building a common narrative. I found such expectations
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Trials are certainly needed for ensuring state accountability for past crimes. However, trials alone are not a realistic option for many new regimes, as will typically not be possible to try everyone involved in past crimes nor to come up with the huge amount of resources needed for such efforts. The justice balance involves ―the legal imperative for justice with protecting public safety by granting amnesty to perpetrator‖ (Olsen, Payne, and Reiter, 2010: 154).
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are also important for assessing transitional justice in Indonesia. After my meetings with various stakeholders, including victims of human rights abuses during my early fieldwork, I developed a set of questions for my assessment. They are as follows:
1. Has the particular transitional justice mechanism produced a democratised truth about past wrongs? The democratisation of truth can only occur when victims‘ narratives about their sufferings are brought to public attention and widely acknowledged, not only by the state but also by society at large. 2. Have trials and prosecutions resulted in individual wrongdoers or state
institutions being held formally accountable and sentenced? Such punitive justice is necessary to challenge the legacy of impunity of the New Order regime.
3. Has victims‘ suffering been acknowledged as part of the initiatives of transitional justice? Acknowledgement of suffering can involve formal reparations to indicate state responsibility and to ensure the rights of each of its citizens. To be genuine, such acknowledgement should be institutionalised, programmed and sustained. It can include memorialisation as a form of symbolic reparation and with the goal of educating younger generations about their nation‘s history.
4. Has institutional and legal reform taken place to make sure truth and justice are accommodated formally as national policies and to ensure the non- recurrence of violations of rights? This would include, importantly, lustration policies to exclude from office individuals who committed human rights violations during their service.
In examining the procedural and substantive effects of transitional justice, I chose as my case studies two types of state-sponsored mechanisms that were adopted, or attempted in Indonesia in the years after 1998: prosecutions and the truth
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commission. To examine prosecutions, I choose the ad hoc human rights trials that were held in 2002 for the violence that occurred around the 1999 referendum in East Timor and in 2004 for the 1984 Tanjung Priok massacre. For the truth commission, I explore the state‘s attempt to establish a TRC between 2000 and 2004. These cases are examples of state-centered, or top-down, transitional justice.
The state-centered approach has been challenged by grassroots, or bottom-up, approaches which highlight an alternative transitional justice where the state has been ineffective in settling cases of past injustice. I thereforealso look at initiatives from civil society groups, including NGOs and victims‘ groups, both locally and nationally. At the local level, I focus on grassroots reconciliation by Syarikat, an NGO based in Yogyakarta. The organisation has been attempting to reconcile local communities in Yogyakarta and some areas of Central Java affected by the 1965-66 massacres of leftists. At the national level, I focus on the ―Year of Truth‖ (Tahun Kebenaran) project run by the KKPK (Koalisi Keadilan dan Pengungkapan Kebenaran, Coalition for Truth and Justice), an NGO coalition whose members come from various regions in Indonesia. The project is a civil society truth-telling initiative on cases of past abuses between 1965 and 2005. I also look at measures implemented at the local government level, specifically Palu City‘s programs for the victims of the 1965-66 mass violence. This was the first formal policy by a local government that specifically acknowledged the 1965-66 violence and tried to deal with its legacies.
In contrast to findings from Sikkink and Payne (2010), who argued that transitional justice can have effects at the state level, this study has found no such impacts in the Indonesian case. Rather, Indonesia experienced more positive impacts at the local and societal level. Indonesia has adopted and implemented multiple transitional justice mechanisms at the national level. However, despite such procedural success, my research finds that these mechanisms did not result in justice as measured
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by the indicators mentioned above. On the contrary, transitional justice implemented at the state level resulted in total impunity despite all the policies and mechanisms that were tried. At the grassroots and local levels, however, transitional justice initiatives seemed to have produced more promising results.