After 18 years of experiencing suspended animation, the Indonesian Human Rights Court is back on track. On Wednesday 21st September 2022, the Human Rights Court reactivated whereas the first trial of the Human Rights Court was held at the Makassar District Court to try the 2014 Paniai case. The agenda was the reading of the indictment against the only Defendant, Major Inf. (Ret.) Isak Sattu (IS), retired TNI-AD Former Liaison Officer for the 1705/Paniai military district commander (kodim) in Paniai Regency. The charges against the defendants are in the form of cumulative charges: First, Article 42 paragraph (1) letter a and letter b jis Article 7 letter b, Article 9 letter a, Article 37 of Law no. 26/2000 on Human Rights Courts; and secondly, Article 42 paragraph (1) letter a and letter b jis Article 7 letter b, Article 9 letter h, Article 40 of Law no. 26/2000 on Human Rights Court.
The Coalition understands that based on the indictment, IS was first charged with criminal responsibility for the actions committed by his subordinates (command responsibility), namely in committing crimes against humanity in the form of murder with a minimum penalty of 10 years in prison and a maximum death penalty. Second, IS was charged with command responsibility as well as for crimes against humanity in the form of persecution, with a minimum sentence of 10 years in prison and a maximum of 20 years in prison.
The coalition has found several ineptness. First, the Attorney General clearly identified the perpetrators as a crime against humanity that occurred through “widespread or systematic attacks knowing that the attacks were directed directly against the civilian population”. The attack must have involved more than one perpetrator. International law and standards applicable to crimes against humanity clearly state that both those with command responsibility and those who directly committed the crimes should be held criminally responsible.
The National Commission on Human Rights divided the alleged perpetrators into several categories: the field perpetrators, the policy maker in command, the effective commander on field, and the bystanders. Logically speaking, the commander in charge is responsible for the humanitarian crimes done by the underlings.
We remind that the context of command responsibility does not stop at the person who gives orders, but also includes the responsibility of superiors who do not prevent or stop acts of gross human rights violations or hand over the perpetrators to the competent authorities for investigation, investigation and prosecution as stipulated in Article 42 of the Law on Human Rights Courts. Therefore, the indictment should not only target IS as a Liaison Officer but also target superiors who in this case have been suspected of not preventing or stopping and handing over the perpetrators to the authorities. At this point, the Prosecutor should not appear to protect the perpetrators by not prosecuting the perpetrators who clearly have the potential to violate human rights. The Prosecutor should also prosecute the responsible TNI leadership and the head of Operation Aman Matoa V as clearly explained in the Komnas HAM investigation report.
More than that, the Prosecutor should have started by proving that the field actors had committed crimes against humanity. It is important to break down the systematic and widespread elements as an important element that distinguishes between ordinary crimes and crimes against humanity. To assess the actions of the commander as a commanding officer can be responsible for a crime against humanity is when the actions of soldiers (field actors) have fulfilled the elements of a crime against humanity, especially systematic or widespread elements.
Second, the Coalition recalls Komnas HAM’s statement that once raised an obstruction of justice to be able to ensnare criminal responsibility involving Indonesian Military officials on top of Defendant IS. The coalition questioned why this criminal act of obstruction of justice escapes the current legal process. On that basis, the Coalition considers that the Attorney General’s indictment has obscured the legal construction of crimes against humanity in this case, one of which is by only naming IS as the only defendant who will even harm his human rights because it could only be used as a “scapegoat”.
Third, although the Coalition respects that the Defendant’s not being detained is indeed at the discretion of law enforcement (Investigators/Prosecutors/Judges) at their respective levels of examination, the Coalition regrets the effects of this decision. Indeed, on the one hand, using a minimum of coercive measures such as detention is a good trial. But on the other hand, the Indonesian people can see that in reality detention is more often given to Suspects/Defendants who come from small groups of people with simpler crimes than crimes against humanity.
Fourth, the Coalition also regrets that security outside the court is still an unaddressed problem. First, the day before the Paniai Human Rights Court trial was held, Tuesday, September 20, 2022 at 13.30 WITA, five people in ordinary clothes and one person in police uniform were suspected from the Makassar Police Intelligence to terrorize and intimidate Papuan students by visiting the rented houses of Papuan students, especially students from Paniai. They asked if there was a demonstration by the Paniai Human Rights Court and stood guard at the entrance to the rented house.
Fifth, the Coalition considers that the State, in this case the Supreme Court and the Court, does not provide proper protection to the Panel of Judges. When compared to the three previous Human Rights Courts, this inadequate protection condition occurs for the trial of Defendant IS who is currently retired and does not hold positions with many troops. Under these conditions, it appears that the Supreme Court and the District Court are not ready, if not to say, they are not intended to protect judges and court visitors if the Defendant is an active officer with a high position.
We urge the Supreme Court and the District Court to provide proper protection for the Panel of Judges and witnesses, to coordinate with the Makassar Police Chief as well to ensure security, especially for Papuan Papuans who are in Makassar in connection with this trial.
In addition, we also urge the Attorney General to thoroughly investigate all perpetrators, apart from IS, who are directly responsible or who hold command responsibility and bring them to justice. With only one person charged in this trial, we finally need to ask: Who is the prosecutor protecting?
2014 Paniai Monitoring Civil Society Coalition
21st September 2022