|Subject: JP: Impunity may reign again after
E. Timor verdicts
The Jakarta Post August 20, 2002
Impunity may reign again after E. Timor verdicts
The Ad Hoc Human Rights Tribunal has acquitted six military and police officers charged with crimes against humanity for failing to prevent the bloodshed in East Timor in 1999. The Jakarta Post's Ati Nurbaiti talked about the verdicts to Asmara Nababan of the National Commission on Human Rights.
Question: How do you view Thursday's verdict acquitting the military and police officers?
Answer: Based upon the preparations made for this ad hoc tribunal and the trial process itself, I'm not surprised at all. The prosecution was very weak, so were the processes of providing evidence, testimony and so on.
Would it make any difference if the prosecutors were to appeal?
Not really. But the positive side is that we can learn from this case, about all the shortcomings in the legislation, the recruitment of judges and prosecutors, the court procedures and the relevant laws. If we can improve all these, the ad hoc Human Rights Tribunal will be able to deliver justice. So many other cases are waiting.
If we cannot learn anything and if business is just conducted as usual, then Indonesia will suffer a great loss as our courts will be unable to deliver justice. It seems the judges only dared to sentence a civilian, former East Timor governor Abilio Jose Osorio Soares, and let all the military and police officers off the hook, including those in civilian positions. Your comment?
Abilio may appeal and be let off too. In his case, the most distressing aspect was the distortion by the judges regarding the legal doctrine on what constitutes crimes against humanity. Extraordinary crimes in international jurisdiction are subject to at least 10-years imprisonment, while ordinary crimes in our criminal code have no minimum sentence.
And the judges did not declare that Abilio should be imprisoned straight away, either.
Were the judges afraid of the military?
Well, the government's commitment was doubtful from the beginning (in staging the tribunal). The necessary government regulations as required by Law No. 26/2000 on the human rights court are those on witness protection and compensation for victims; these were issued only one day before the trial.
It was not fear of the military but more this lack of government commitment. And even if the judges did have competence in this area of international law -- they only had four days training -- the prosecution was also very weak.
The defendants claimed, among other things, that they were either acting on orders or that the situation was out of control because the United Nations Mission in East Timor (UNAMET) had triggered dissatisfaction and the subsequent unrest. Your comment?
A competent judge with wide knowledge would have easily ordered the prosecutor to summon (a representative of) UNAMET and cross-checked the allegations on whether there was indeed cheating (in counting ballots on the self-determination referendum).
Will the international community now demand that the suspects be brought before an international human rights tribunal?
At least the suggestion will be raised again; they earlier stopped when Indonesia promised it would hold its own trial. We got the chance and various international observers monitored the trial day by day. So we can't lie and say we've met the minimum standards of an international tribunal. The result will be more pressure (for an international court).
But won't we have some leverage, what with the United States seeking as many allies as possible in the war against terrorism?
It will be the decision of the UN Security Council; the U.S. or Russia, or China could veto it. But international pressure will continue to be a pebble in our diplomatic shoe.
Then normalization of military relations (between Indonesia and the U.S.) will not happen because a prerequisite is the accountability of officers in cases of human rights' violations.
What of the impact on society?
A wider consequence will be the absence of any progress for our future and that the violators of human rights will enjoy greater impunity. Upholding and protecting human rights will be much more difficult while it will be easier for officers to violate human rights as they know they will walk free.
There was no deterrent effect from the (Thursday) verdict; deterrence would have made officers more cautious in performing their duties. How human rights are treated in Papua and Aceh, for example.
Those involved in such a catastrophe can walk free -- what about other cases where only, say, five were killed? Could the National Commission on Human Rights have played a role in this verdict? Earlier, the special team investigating atrocities in East Timor couldn't agree on what constituted gross violations of human rights.
No. In the final report we reached an agreement. There was no question that gross human rights violations occurred. And we put Gen. Wiranto (then TNI chief) on top of the list of officers who should be brought to trial -- but his name was dropped by the Attorney General (then Marzuki Darusman).
The acquitted officers must feel that they have received justice; they were only carrying out orders and the political situation at that time seemed to demand that Indonesia's government forces help the pro-integration side win despite a commitment to neutrality.
That could well be true. But the question of whether justice has been served must be viewed from the perspective of the victims. Did the victims of the 1999 (bloodshed) in East Timor receive justice?
Civilians remain scapegoats in human rights abuses
Bayu Wicaksono, Civil Society Alliance for Democracy (Yappika), Jakarta
Former East Timor Governor Abilio Jose Osorio Soares was recently found guilty of human rights violations under several articles of Law No. 26/2000 on human rights tribunals and sentenced to three years in jail. In response, Soares made an intriguing statement: "This East Timor case purely concerns a long-standing horizontal conflict. Why should I bear the brunt? How could I have dispersed the mass rally of the PPI (pro-integration group)? They were all armed. I might have been killed." This assertion contains a lot of riddles. Wasn't he the official who addressed the rally? Did he do it under threat?
Then, what about the power and authority of the governor in making a decision? Could he have asked the regional military commander to dissolve the mass gathering believed to be involved in the rampage? If Soares had done that, he should have issued an official instruction to the military and police as evidence. If the instruction had been sent without response, the responsibility should have already been shifted to the security authorities.
Another aspect worth noting in the ad hoc tribunal's trial of the case of East Timor human rights abuses was the presence of international pressure through the UN Commission against Torture, recommending that the Indonesian government guarantee the function of an ad hoc human rights tribunal for the case of East Timor, with the capacity of considering the examination of all human rights violations occurring from Jan. 1 to Oct. 25, 1999.
Article 1 paragraph 1 of the law stipulates that human rights constitute "a set of rights inherent in the basic nature and existence of man as God's being and bestowed by Him, which shall be respected, held in high esteem and protected by the state, law, the government and everybody for the sake of honoring and safeguarding human dignity and integrity."
The global urge for such recognition of human rights can also be noticed in the serious attitude shown by the UN Security Council with its resolution 1264 in 1999, condemning acts of violence in East Timor's post-referendum period. The resolution also appealed to the Indonesian government to establish a human rights tribunal and assigned the government the mandatory international task of trying those responsible for the post-referendum incidents in East Timor. It obviously implies that the government has a moral burden in connection with the various cases of human rights mistreatment.
It came as a surprise when the ad hoc tribunal's panel of judges acquitted former East Timor police chief Brig. Gen. Timbul Silaen and five other officers -- former Covalima military commander Col. Liliek Koeshadianto, former Suai military district commander Maj. Sugito, former Covalima regent Col. Herman Sedyono, former Suai district military chief of staff Maj. Achmad Syamsuddin and former Suai police precinct chief Adj. Sr. Comr. Gatot Subiantoro -- of human rights abuses.
With the acquittals, due apparently to a lack of evidence, international rights bodies are further losing their confidence in our law enforcement. The logic that should be linked with the military and police presence is how the armed institutions assigned to protect all civilians could condone the existence of another opposing, and armed, civilian group.
As indicated in the UN recommendation, a prominent thread can be drawn between the crimes against humanity in East Timor and the structure of power. Based on the power division, the regional police chief and regional military commander are on par with the governor in responsibility within the same territory.
While the governor is responsible for human rights crimes committed by an armed civilian group, the same is true of the national police, in this case the regional police chief. If the police remain incapable of preventing human rights abuses, they have the right and are obliged to seek military assistance, in this case under the regional military commander.
However, the ad hoc tribunal's panel of judges under Andi Samsan Nganro ignored the power division, namely the structure between the regional civilian hierarchy (province administration) and the military (regional command), and the relation between the governor and military commander, as well as the local civilian authority (regency) and the military district command. Was it because the six officers who were declared innocent came from the military and police, while only Soares is a civilian?
If the ad hoc tribunal is willing to settle cases of post-referendum East Timor seriously, they are still bound by Law No.5/1998 on ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading treatment.
If the tribunal fails to apply the logic of power structure, one can be sure that all the military and police officers will be acquitted. Only Soares, a defendant representing civilians and bureaucrats, has got a prison term. In turn, the international community will continue to witness that the judicial institution in Indonesia remains far beyond upholding justice in human rights violations involving military and civilian suspects.
Will the cases of Aceh, Papua, Poso and Maluku be settled in the same fashion, with civilian bureaucrats continuing to lose and be declared guilty, while no connection is recognized between the military and the armed militia?
Activists call for int'l human rights tribunal on East Timor
The Jakarta Post, Jakarta
Human rights activists pledged on Monday to step up a global campaign for the establishment of an international tribunal for those involved in the mayhem in East Timor in 1999, saying Indonesia's human rights court was inconsistent and not independent.
"Having observed the unreliable proceedings of local trials unfold, we want to launch a campaign to try those alleged to have carried out human rights abuses in East Timor at an international tribunal," Daniel Panjaitan, an activist at Jakarta Legal Aid Institute, told a seminar here.
He said the whole trial process was untrustworthy, citing the fact that even before the tribunal began, the attorney general dropped charges against Gen. (ret) Wiranto, who was in charge of the Indonesian Military (TNI) when the violence prevailed.
When the hearings began, he added, prosecutors were seemingly reluctant to bring in many key witnesses. Only two victim witnesses appeared in court.
Prosecutors were also unwilling to disclose links between prointegration militias, the Army and the government, despite their close affiliation, he said.
In a bizarre verdict, the ad hoc court sentenced on Wednesday former East Timor Governor Abilio Jose Osorio Soares to three years in jail, far below the minimum punishment of 10 years according to Law No. 26/2000 on Human Rights Tribunal. A day later, the court sparked fiercer criticism for acquitting former East Timor Police chief Brig. Gen. Timbul Silaen and five military officers from all charges.
"Court proceedings do not meet international standards. The United Nations (UN) could bring such cases to an international tribunal," Daniel said.
Noted lawyer Todung Mulya Lubis agreed that the current trials had too many flaws, ranging from weak evidence presented by prosecutors to the fact that judges didn't carry out field checks in East Timor.
"With such flaws, there is a growing hope to set up an international tribunal," he said at the seminar.
He believed the international community would also consider cutting loans for Indonesia because of the controversial verdicts.
"I'm sure the U.S., the International Monetary Fund (IMF), and the Consultative Group on Indonesia (CGI) will question Indonesia about the accountability of its human rights court before deciding to issue loans," he said.
But Sidney Jones from the International Crisis Group said the demand for an international tribunal might face resistance from the UN Security Council, which is authorized to recommend whether the trial takes place.
"The U.S. may not support the idea because it needs Indonesia to support the war against terrorism. Russia and China may veto the idea as they also have human rights abuse records," she said.
Supreme Justice Benyamin Mangkoedilaga supported Jones' argument, saying that an international tribunal for human rights abuses in East Timor was unlikely due to the nebis en idem principle, which bars a person from standing a second trial for the same charges.
Benyamin, former chairman of the team preparing the ad hoc tribunal, added the human rights trials had met international standards.
"The international tribunal for Rwanda was unavoidable because it failed to set up human rights trials at home. This situation, of course, is totally different from our own," he said.
"Remember, an international tribunal is only supplementary should a domestic trial fail to proceed."
Benyamin said it was prosecutors who should be blamed for the controversial verdicts.
"The judges have opened chances for prosecutors to support their charges. But we cannot force the judges to decide other than what they see in the court," he said.
Separately, Minister of Foreign Affairs Hassan Wirayuda called on the international community to refrain from commenting on the ongoing human rights tribunal as the legal process is not over yet.
"I hope foreign observers will not make immediate comments on the continuing legal process," Hassan told a press conference on Monday.
He underlined that the human rights tribunal in Jakarta may have been the first in Asia and it was important to bear in mind that Indonesia had no experience in handling such trials.
The minister dismissed speculation that the government had intervened in the ad hoc tribunal.
During her meeting with visiting delegates of the United States Congress later in the day, President Megawati Soekarnoputri reiterated the government's stance to stay out of the human rights tribunal process.
"We asked about the tribunal and she said it was the job for the court," the head of the delegation Paul Cleveland said afterwards.
However, he refused to comment on whether the recent verdicts would affect the ongoing process to restore military ties with Indonesia. The Congress banned military assistance to Indonesia following the bloody 1999 mayhem in East Timor.
Note: For those who would like to fax "the powers that be" - CallCenter is a Native 32-bit Voice Telephony software application integrated with fax and data communications... and it's free of charge! Download from http://www.v3inc.com/