Will Indonesia's generals get away with murder?
On January 31, the investigation by the Indonesian National Commission for Human Rights into atrocities and human rights abuses in East Timor will release its report. It is likely to implicate dozens of high-ranking Indonesian military figures — including the coordinating minister for political and security affairs and former military chief, General Wiranto — in the scorched earth policy carried out in 1999 by the Indonesian military and its militias.
But doubts are being raised as to what will happen with the report once it's delivered and whether the generals will ever be brought to justice in Indonesia. The following report, released on January 24, is from TAPOL, a London-based Indonesia human rights campaign group.
When three army generals were publicly grilled in November by members of Indonesia's newly elected parliament about atrocities in Aceh, the whole nation was transfixed by the three-hour spectacle on their television screens. Now, at last, after more than three decades of impunity, men with the blood of many victims on their hands were being called to account.
However, the senior officers have treated the commission with contempt. They have used their appearances before the commission to spin lies, try to refute irrefutable evidence and prolong the commission's proceedings. They have shown that they will do everything in their power to protect themselves from possible prosecution.
In anticipation of the United Nation's own inquiry, the Indonesian government, then under President B.J. Habibie, hastily enacted a presidential decree in lieu of law for the formation of a human rights court. At the same time, the National Commission for Human Rights (Komnas HAM) set up a commission to investigate violations of human rights (KPP-HAM) with a mandate to investigate abuses committed in the aftermath of the independence ballot in East Timor.
Indonesian governments under Habibie and Abdurrahman Wahid have made it clear on numerous occasions that they would not agree to Indonesian army officers being tried before an international court because they see this as an infringement of national sovereignty. Generals who know full well that they could be indicted have made no secret of their fear of suffering the same fate as General Pinochet of Chile or Serbian generals now being tried in The Hague.
Investigation presses ahead
Although there was initial scepticism about the independence and sincerity of the commission, it soon became apparent that KPP-HAM was determined to collect evidence about the role of army officers in the killings in East Timor.
During its first investigations in November, which took the investigation team to East and West Timor, KPP-HAM gathered information and collected eyewitness testimonies about some of the worst atrocities, including the killing of several hundred people at a church in Suai on September 6. In December, KPP-HAM investigators visited East Timor for eight days.
On their return home, they announced that they had found convincing evidence that the operations of the pro-integration militias had taken place with the knowledge of and on the instructions of high-ranking army and police officers, and that Jakarta should be called to account for the criminal acts in East Timor.
The KPP-HAM summoned General Wiranto on December 24 and questioned him for more than three hours. Wiranto later told the press he had agreed to appear before the KPP-HAM because it was an official body set up by the government and because "the matters in hand should be resolved between us as a domestic affair without letting outsiders clean up our household".
He insisted that the TNI (Indonesian army) as an institution "had never issued orders or encouraged the burning of cities, the killing of people or the compulsory evacuation of the population".
Three major-generals, Zacky Anwar Makarim and Syafrie Syamsuddin, both intelligence officers, and Adam Damiri, who was commander of the regional military command in Bali, as well as Colonel Timbun Silaen, who was chief of police in East Timor, and Colonel Tono Suratman, the military commander of East Timor, have also appeared before the commission. They used the occasion to attempt to clear their names and refute eyewitness testimony obtained by KPP-HAM investigators in East Timor.
The officers' defence team announced that their main line of defence would be that the human rights violations in the aftermath of the ballot "were a manifestation of society's disappointment with the conduct of the ballot which had been unfair and dishonest".
In an attempt to discredit the activities of the KPP-HAM, top generals have accused it of pursuing an anti-Indonesia agenda, of being funded by money from abroad and of basing its evidence on information from Interfet, a body that has been much maligned in Indonesia for alleged interference in Indonesia's domestic affairs. They are seeking to portray the KPP-HAM as serving foreign interests. Some of its members have even been threatened with physical violence.
Swept under the carpet
The KPP-HAM's investigations are only the beginning of a lengthy process, the subsequent stages of which will be in the hands of prosecutors, who will decide whether those identified by the KPP-HAM can be formally indicted.
As the Indonesian Legal Aid and Human Rights Association has pointed out, all the painstaking investigations undertaken by the KPP-HAM are in danger of being swept under the carpet if the suspects are brought before a court that is not equipped with the necessary legal provisions. Indonesia has not yet adopted the necessary legislation for the convening of human rights courts empowered to try crimes against humanity (not included under Indonesia's criminal code).
The presidential decree in lieu of law (Perpu 1/1999) enacted in September by Habibie, which provided for the creation of a human rights court, is due to be submitted to parliament for endorsement or rejection. The government will ask the parliament to reject the decree, thus paving the way for a new law on a human rights court.
The government's draft law for the creation of a human rights court is drafted in such a way as to make it impossible for all the grave human rights violations committed in East Timor (as well as numerous crimes against humanity committed in Aceh since 1989) to be taken to such a court because it will not be retroactive. Article 32 of the draft stipulates that "cases of grave human rights violations that were committed prior to the creation of the Human Rights Court shall be handled by a Truth and Reconciliation Commission'(TRC). Nothing is yet known about the terms of reference of the TRC.
Although the TRC, unlike the human rights court, will have retroactive powers, it will be unable to pass such a case on to a human rights court because the latter will lack retroactive powers. The TRC will lack teeth.
The draft law on the human rights court even compares unfavourably with Perpu No 1/1999 on one crucial question. Whereas the Perpu stipulated that violations which occurred prior to the creation of the court could be heard before a normal court, the draft law provides for all such cases to be brought before the truth commission.
Munir, a leading member of the KPP-HAM, has strongly condemned the draft human rights court law for abandoning the principle of retroactivity. He is himself a member of the team that drafted the law.
He told the press that the earlier draft provided for a 15-year period of retroactivity. The draft was altered in circumstances about which he knows nothing. He sees this as a deliberate attempt by certain circles to make it impossible for any human rights trials to be conducted in Indonesia. "If this principle is abandoned", he said, "everything that the KPP-HAM has been doing will be a total waste of time".
In the absence of a human rights court, the Indonesian judiciary has opted to create special mixed courts in which suspects from the armed forces will be tried before a panel of civilian and military judges. By ensuring the presence of military judges, the army can be safe in the knowledge that their officers will have at least one supporter on the panel.
International tribunal
On January 19, Indonesian foreign minister Alwi Shihab met UN secretary-general Kofi Annan to persuade him that the KPP-HAM "must be given the authority with no interference from any institutions, including the UN" to handle the question of accountability for the crimes committed in East Timor, claiming that "international interference would be counter-productive and would disturb the process". He also told the secretary-general that the Indonesian government would bring those involved in human rights abuses in East Timor to court.
The following day, on a visit to Washington, Alwi Shihab came under strong pressure from US secretary of state Madeleine Albright who said the US "was watching very carefully" as Indonesia investigates abuses in East Timor.
The Indonesian foreign minister must have felt the heat, saying that Wahid was "committed to punishing the violators, and if the national commission did not meet international standards, Indonesia will have to accept an international court", adding that this would be "a last resort".
However, there is no reason to believe that the necessary institutional changes will take place in the judiciary to ensure that domestic remedies can successfully secure justice with regard to the killings and devastation that engulfed East Timor in 1999. The only way forward is for the establishment of an international tribunal.
[From TAPOL, the Indonesia Human Rights Campaign, .]