Indonesia - East Timor CTF: Why the UN must boycott it?
The "UN Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999" in its report in July 2005 recommended that if Indonesia fails to strengthen its judicial and prosecutorial capacity "by assembling a team of international judicial and legal experts to provide independent specialist legal advice to the Office of the Attorney General on international criminal law, international humanitarian law and international human rights standards", the crimes against humanity in then East Timor must be referred to the UN Security Council for the establishment of an international tribunal.
Indonesia has indeed failed to strengthen its judicial and quasi-judicial mechanisms as recommended by the UN Commission of Experts.
I. Failure of the chained watchdog, Komnas HAM
After the fall of Soeharto, Indonesia claims to have further empowered the National Human Rights Commission, Komnas HAM pursuant to the Law No 39 of 1999 concerning Human Rights. In reality, Komnas HAM is a chained watchdog.
Under Article 19 of Law No. 26 of 2000, the Komnas HAM is authorised to inquire any alleged gross human rights violations without subpoena powers. Based on this inquiry of the Komnas HAM, the Attorney General takes the final decision under Article 21 whether to order further inquiries or not for eventual prosecution. But, Komnas HAM does not have the power to issue subpoena. Since the Komnas HAM in the first place is legally constrained through denial of subpoena powers to conduct proper inquiries, it cannot take logical steps which will force the Dewan Perwakilan Rakyat (House of Representatives, or DPR) or the Attorney General to take appropriate measures. This is nothing but an effective procedural obstacle to provide impunity.
The United Nations Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 found that "the lack of access to evidence and suspects in Indonesia is a critical challenge impeding the progress of the serious crimes processes in Timor-Leste". This observation is applicable to all human rights violations because of the lack of the denial of subpoena powers.
Nonetheless, Komnas HAM submitted inquiry reports into the six alleged gross violations of human rights (Trisakti 1998, Semanggi I 1998, Semanggi, May 1998 riots, Wasior 2001-2002, and Wamena 2003) but no action was taken by the Attorney General.
In the 1998 killing of four students at Trisakti University and nine demonstrators at Semanggi intersection and the 1999 killing of an additional four demonstrators at Semanggi, the Komnas HAM after its investigation concluded that the killings were gross human rights violations. Komnas HAM submitted these cases to the Attorney General's office (AGO) for prosecution. However, the AGO argued that it could not prosecute the accused in these cases unless the House of Representatives, the DPR classified them as gross human rights violations. In July 2001, the House announced that there were no gross human rights violations during the violence at Trisakti University in 1998 or during the Semanggi incidents in 1998 and 1999. The DPR refused to reconsider its 2001 decision.
An adhoc team of the Komnas HAM inquired into the 1998 abductions of between 12 and 14 pro-democracy activists. The Indonesian military TNI refused to cooperate in the investigation. Nonetheless based on other testimonies and evidence, Komnas HAM concluded that all victims still missing were dead and identified the suspects but failed to release the names of the suspects. The AGO stated that it could not prosecute these crimes unless the DPR declared them as "gross human rights violations".
At least 1,217 people died in three days of rioting in Jakarta in May 1998 in which members of the ethnic Chinese community were primarily targeted. Hundreds of shops and buildings belonging to them were looted and burnt down by the rioters. About 85 ethnic Chinese women and girls were sexually assaulted including 52 of them being raped. Despite the ad hoc team of the National Human Rights Commission (Komnas HAM) identifying some 20 military officers including former Armed Forces commander General Wiranto and former Strategic Reserve Command (Kostrad) chief Prabowo Subianto and some civilians as being behind the May 1998 riots in Jakarta, the Attorney General refused to order further investigation that would have led to prosecution of the perpetrators.
In a series of sweeping operations carried out in the villages of Wondiboi, Yomakan, Wondamawi I and Isei after an attack on their camp at CV Vatika Papuana Perkasa (VPP) company base camp in Wondiboi village, Wasior district, West Papua on 13 June 2001, the Brimob (mobile police) allegedly killed four civilians, raped one; five disappeared, tortured many, 38 and burnt down dozens of homes. In similar sweeping retaliatory operations in Wamena town, and some villages in Wamena Sub-district after alleged members of the Free Papua Movement (OPM) reportedly broke into a military arsenal in Wamena in June 2003, the Indonesian military killed 9 civilians, tortured 38, arbitrarily arrested 15 of them and displaced thousands from their villages.
In its investigative reports on both the above mentioned cases which were submitted to the Attorney General's Office in September 2004, Komnas HAM reportedly named as many as 168 members of the military and police as suspects. But, no prosecution proceedings have been initiated.
II. Failure of the Human Rights Courts
The human rights courts in Indonesia are often moved by nationalist fervour rather than by any judicial considerations and undermined the efforts of Komnas HAM to expose human rights violations and bring perpetrators to account by a number of court decisions regarding Komnas HAM's jurisdiction or authority.
With regard to the killing of three Papuan students and the torture of over 100 others in Abepura, Papua on 7 December 2000, Komnas HAM named 25 security personnel to be guilty of killing and torture. However, only two of these suspects were charged by the Attorney General's Office, with no adequate explanation. As if that was not enough, a special Human Rights Court in Makassar acquitted two senior police officers who were found guilty by the National Human Rights Commission. The two accused police officers, Brigadier General Johny Wainal Usman and Senior Commissioner Daud Sihombing were charged with command responsibility for the killings and torture. They faced a maximum penalty of life imprisonment if convicted. But Chief Prosecutor I Ketut Murtika recommended the minimum penalty of only 10 years, claiming the two accused had "served the nation" and "did not have malicious intentions". The court went a few steps further to exonerate both the accused officers and rule that they were not guilty of allowing their subordinates to torture and kill civilians during the raid.
The gross human rights violations that occurred before 2000 could be investigated only by an ad hoc human rights court, not Komnas HAM. Such an adhoc court could be formed only by a decision of the Dewan Perwakilan Rakyat (House of Representatives, or DPR) but for the DPR to know enough about an incident to approve the formation of a court, a thorough investigation was necessary.
The DPR following Komnas HAM's recommendations approved the establishment of an ad hoc court to try human rights abuses related to the 1984 Tanjung Priok incident and in East Timor in 1999.
With regard to the massacre at Tanjung Priok in North Jakarta of 1984 massacre in which at least 33 unarmed Muslim protesters, 14 police and military personnel were charged. In 2004, the human rights court acquitted the two most senior defendants, while 12 others were sentenced to between two and 10 years. Jakarta High Court in July 2005 overturned the convictions of the 12 officers, which means that not one person has been convicted for the incident.
The UN Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 in its report of July 2005 stated that the Adhoc tribunal on Timor-Leste "conducted the inquiry stage of the ad hoc judicial process in a comprehensive, credible and objective manner, in compliance with international standards applicable to pro justitia inquiries. The adhoc tribunal established "relevant crime base, linkage evidence and alleged involvement of individuals from military and civilian institutions. From the list of about 22 suspects, the Attorney-General indicted 18 individuals from the military and the police who were directly in command in East Timor at the material time, as well as two civilian government officials and a militia Leader". Of 18 defendants brought before the ad hoc human rights court, 12 were acquitted and six convicted. Jakarta High Court later exonerated five of the convicted, while the sixth remained free pending appeal.
III. Why UN must boycott?
The UN Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999 concluded that "the prosecutions before the Ad Hoc Court were manifestly inadequate, primarily owing to a lack of commitment on the part of the prosecution, as well as to the lack of expertise, experience and training in the subject-matter, deficient investigations and inadequate presentation of inculpatory material at trial".
Indonesia does not have a single case including the killing of human rights activist, Mr Munir Said Thalib to prove that it has any political will to establish accountability for any human rights violation. The main mandate of the Commission on Truth and Friendship established by Indonesia and East Timor is to "recommend amnesty for those involved in human rights violations who cooperate fully in revealing the truth".
Given the unwillingness of both East Timor and Indonesia, it is unlikely that the UN Security Council will establish any tribunal to establish accountability for the gross human rights violations in East Timor. But, the United Nations must boycott the tribunal. It would be a shame if the UN were to put its legitimacy to a process which will amount to endorsing or condoning and therefore fostering impunity for genocide, crimes against humanity, war crimes or gross violations of human rights in East Timor.