also: Op-Ed: Indonesia's long-and-windy road to shortcut military impunity [By Usman Hamid, Executive Director of the Commission for Missing Persons and Victims of Violence (Kontras)

The Jakarta Post Monday, April

Generals urged to face rights body questioning

Lilian Budianto, The Jakarta Post, Jakarta

Human rights activists and political experts have criticized retired military and police generals for protesting against attempts to question them in connection to past atrocities.

Usman Hamid, coordinator of the Commission for Missing Persons and Victims of Violence, said Sunday the move only demonstrated their attempts to preserve impunity.

He said the retired generals had violated the principle of equality before the law by calling on the National Commission on Human Rights (Komnas HAM) to stop the investigations and urging the government to replace Komnas HAM members for abuse of power.

About 500 retired military and police generals gathered in Jakarta on Thursday.

They said the rights commission had no authority to investigate the past atrocities, including the 1989 shootings in Talangsari, Lampung, because they occurred before the 1999 human rights law and 2000 human rights court law were enacted.

A provision in the 1945 Constitution states no new law can be applied retroactively unless the House of Representatives passes a law saying otherwise.

The former generals, including former Armed Forces chief Gen. (ret) Try Sutrisno and former Army Special Forces commander Gen. (ret) Wismoyo Arismunandar, have accused the commission of deliberately misinterpreting the law to force them to take responsibility for the Talangsari incident, in which more than 200 local residents were killed.

Try, Wismoyo and Gen. (ret) A.M. Hendropriyono, who was Lampung military commander at the time of the incident, have refused to answer summonses by the rights body.

"The generals have no justification in hiding behind the principle of retroactivity because a provision in the human rights court law says atrocities that occurred before the enactment of the law can be heard in an ad hoc court," Usman said.

The law says the ad hoc court can be set up by the president following recommendations from the rights commission and the Attorney General's Office.

President Susilo Bambang Yudhoyono told human rights activists, including Usman, early last month he backed the move by Komnas HAM.

He ordered all government institutions to support any investigation or examination conducted by the rights body into alleged crimes against humanity.

Yudhoyono's call came after Defense Minister Juwono Sudarsono encouraged retired generals to ignore the rights body's summonses.

J. Kristiadi, vice director for the Centre for Strategic and International Studies, said the generals' protest was exaggerated.

However, he said their move was a reaction to the rights commission's public disclosure of the planned investigations without personally notifying the senior officers beforehand.

He said the President should explain to the retired generals the investigations were not intended to force them to take responsibility.

"They are summoned as witnesses and if they have done nothing wrong they should turn up and tell the public so," Kristiadi said.

Another political expert, Ikrar Nusabhakti, said the President's intervention could be interpreted as a move against the former generals, who will challenge Yudhoyono in the 2009 elections.

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The Jakarta Post Monday, April 28, 2008

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

By Usman Hamid , Jakarta

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).