Indonesia’s long-and-windy road to shortcut military impunity

Indonesia has gone through a transitional period over the last 10 years, which has seen improvements in democratization and legal institutional reform, including the elimination of parliament seats granted to the military.

Other improvements include the endorsing of special autonomy and peace building in Nanggroe Aceh Darussalam and Papua, as well as the county’s ratification of several UN conventions, including current deliberations to support an ICC convention.

However, Indonesia still has piles of work to contend with, particularly when it comes to an old-fashioned policy that maintains impunity for servicemen from past human rights abuses.

Under the presidencies of Abdurrahman "Gus Dur" Wahid and Megawati Soekarnoputri, two major cases were brought to the rights tribunal — that of gross human rights violations in East Timor in 1999 and the 1984 Tanjung Priok massacre.

Unfortunately, though unsurprising, all of the involved perpetrators eventually walked free. Worse, former Army generals implicated in both cases found themselves subsequently promoted to higher or more key positions.

Recently, President Yudhoyono held a meeting with Kontras and victims communities, during which he made a vow to personally back any effort pursued by Kontras to resolve past human rights abuses. The President further promised to hold a special Cabinet meeting to review cases of past human rights violations and to appease demands for justice by the victims. We consider Yudhoyono’s commitment as part of the state’s commitment to eliminate impunity among servicemen.

Literally, "impunity" means "the absence of punishment". The principle was first imposed in Latin America amid a political transition from Machiavellian rule to democracy, in particular when new policies were created to resolve past abuses perpetrated under the dictatorship. As of today, impunity has become a phenomenon in many countries, including Indonesia, which, too, is in the midst of political transition.

In August 1997, Louis Joinet, the UN Rapporteur on Impunity to the UN Sub Commission on Prevention of Discrimination and Protection of Minorities, concluded a report that stated it was impossible in principle and in practice to bring perpetrators to account, whether in criminal, civil, administrative or disciplinary proceedings, since they were not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, convicted, or to reparations for victims.

Kontras has exhausted all means to eliminate the principle of impunity by filing cases of alleged past human rights abuses to the National Human Rights Commission (Komnas HAM). Some cases have been investigated, including, among others, extrajudicial killings and torture in Tanjung Priok in 1984, the Trisakti and Semanggi shootings in 1998 and 1999, the Wasior and Wamena clashes, brutality and sexual abuses against ethnic Chinese women in May 1998, humanitarian impacts during the martial law in Aceh and forced disappearances of activists in 1997-1998.

Komnas HAM is currently investigating a series of torture and summary executions in Talangsari village in 1989, a series of killings against civilians accused as criminals in 1981-1985 and mass killings and torture of those allegedly connected with communist groups in 1965. A thorough investigation into these cases is required to achieve justice for the victims, as they have a right to the truth. However, justice is still a long way away.

The public is aware the Attorney General’s Office (AGO) has argued that investigations and prosecutions can only be achieved once authorities (read: the parliament and the government) have established an ad hoc human rights tribunal to try suspected perpetrators.

Such an interpretation contradicts the Feb. 21, 2008, ruling by the Constitutional Court, which says the establishment of an ad hoc human rights tribunal by the parliament may proceed following a report by Komnas HAM, on which the AGO must proceed with further investigation.

There is hope, however, a mandate to establish an ad hoc human rights tribunal would be transferred from the parliament to the Supreme Court or another respected non-politically aligned body.

For present human rights abuses, for which the retroactive principle is not applicable, Komnas HAM continues to find it problematic to complete inquiries due to the so-called impunity principle. The same principle ruled in the case of the 2007 military shooting of villagers in Alas Tlogo, Pasuruan, in East Java, as well as in alleged torture in Poso, Papua and Aceh.

In an apparent attempt to halt Komnas HAM’s moves to investigate the incidents, the military has brought to court the alleged shooters, as was seen in the trial of military officers accused of murdering Papuan leader Theys Hiyo Eluay in 2001. It is clear the military set up their own tribunal with the intention of evading investigations led by Komnas HAM.

What can President Yudhoyono do? The answer is he must amend the military tribunal. According to the UN convention, military courts do not have sufficient statutory independence. Their jurisdiction must be limited to specifically military infractions committed by members of the military against members of the military, to the exclusion of human rights violations, which must come under the jurisdiction of ordinary courts.

It is the international community’s obligation to closely monitor Indonesia’s long and windy journey to scrap the impunity principle. Neighboring countries that wish to give support in the form of funds and exercises to the Indonesian Military are obligated to ensure the Indonesian servicemen entitled to the support funds and joint exercises are "innocent" of human rights violation.

The most important thing is to push for a thorough investigation into past human rights violations to give the public the identities of those responsible for the violent acts as well as the identities of victims entitled to compensation. Identifying the innocent figures will help prevent collective judgment against the military. This is how we can progress to achieve a democratic nation-state.

The writer is an executive director of the Commission for Missing Persons and Victims of Violence (Kontras).