FACULTY OF LAW University of Lund Master of International Human Rights Law Dwi Satya Ardyanto Granting Autonomy to Aceh Region as a Conflict Resolution between the Government of Indonesia and Free Aceh Movement Master thesis 20 points Supervisor Professor Gudmundur S. Alfredsson International Human Rights Law Autumn 2005 Contents ACKNOWLEDGEMENT FEL! BOKMÄRKET ÄR INTE DEFINIERAT. ABBREVIATIONS FEL! BOKMÄRKET ÄR INTE DEFINIERAT. 1 INTRODUCTION 4 1.1. Background 4 1.2. Statement of Problem 4 1.3. Operative Terms 4 1.3.1. Autonomy 4 1.3.2. Customary International Law 4 1.4. Research Methods 5 1.5. Organisation of Chapters 5 2 UN PROTECTION ON MINORITIES IN A NUTSHELL 7 2.1. The Greater Urgency of Protection on Minorities 7 2.2. UN Protection on Minorities: Over Time Development 8 2.3. Related International Instruments and the Role of Human Rights Committee and Other Related Institutions 11 2.3.1. Related International Instruments 11 2.3.2. Human Rights Committee and Other Related Institutions 11 2.3.2.1. UN Working Group on Minorities 12 2.3.2.2. Secretary General 12 2.3.2.3. UN Centre for Human Rights 13 2.3.2.4. High Commission for Human Rights 13 2.3.2.5. Special Rapporteurs 13 2.4. Assessing Who Constitutes as a Minority 13 2.4.1. Qualifications 13 2.4.2. At the T-Junctions: Individual Rights or Collective Rights 14 2.4.3. Types of Minorities 15 2.4.3.1. Ethnic Minorities 15 2.4.3.2. Religious Minorities 15 2.4.3.3. Linguistic Minorities 15 2.5. Positive Measures Taken 15 2.5.1. Constitutional or Legislative Safeguard 15 2.5.2. Non-Discrimination and Equal Treatment 16 2.5.3. Language 17 2.5.4. Education 17 2.5.5. Religion 18 2.5.6. Economic Development 19 2.5.7. Right to Contact 19 2.5.8. Effective Participation in Decision Making 19 2.6. Indigenous People 20 3 THE DEVELOPMENT OF THE RIGHT TO AUTONOMY 21 3.1. The Relation between Right to Autonomy and Protection on Minorities 21 3.2. Development of Autonomy as Customary International Law 22 3.2.1. Related UN and Regional Documents 23 3.2.2. State Practices 27 3.3. Factors Influencing Durability of Autonomy 28 3.4. Types of Autonomy 29 3.4.1. Territorial Autonomy 29 3.4.2. Non-Territorial Autonomy (Personal Autonomy) 29 3.5. Model of Autonomy: Some Examples 30 3.5.2. Constitutional or Legal Safeguard 30 3.5.3. Local Executive Body 33 3.5.4. Local Judicial Body 34 3.5.5. Administration and Public Service 34 3.5.6. Taxation 34 3.5.7. Education and Language 35 3.5.8. Others 36 3.5.9. Conclusion 36 4 AUTONOMY IMPLEMENTATION IN PROVINCE OF NAD 40 4.1. Assessing Aceh People as a Minority in Indonesia 40 4.2. An Overview of the Conflict between GoI and GAM 41 4.2.1. The Nexus between DI/TII and GAM 41 4.2.2. Reformation 1999: A Hope was Nothing than a Hope 44 4.2.3. Agreements Concluded between GoI and GAM 46 4.3. The Concept of UU 18/2001 and Its Realisation 49 4.3.1. Background 49 4.3.2. The Contents of UU 18/2001 50 4.3.2.1. Regional Legislative Body (DPRD NAD) 50 4.3.2.2. Regional Executive Body 50 4.3.2.3. Regional Judicial Body: Mahkamah Syar'iyah 50 4.3.2.4. Economic, Financial and Natural Resources Arrangements 51 4.3.2.5. Employment and Administration 51 4.3.2.6. Education and Culture 52 4.3.2.7. Qanun 52 4.3.3. The Realisation of UU 18/2001 and Its Failure 52 4.3.3.1. Economic Arrangements 52 4.3.3.2. Islamic Law (Syari'ah) 53 4.3.3.3. The Poor Supervision from DPRD NAD 54 4.3.3.4. Conclusion 55 4.4. MoU 55 4.4.1. Background 55 4.4.2. The Contents of MoU 56 4.4.2.1. Self-Governance 56 4.4.2.2. Legislative Arrangements 57 4.4.2.3. Executive Arrangements 57 4.4.2.4. Rights of Citizens, Election and Political Participation 57 4.4.2.5. Economic, Finance and Natural Resources 57 4.4.2.6. Education and Culture 58 4.4.2.7. Development, Transport and Physical Infrastructure 58 4.4.2.8. Kanun 58 4.4.3. Comparison between MoU and UU 18/2001 58 4.4.4. The Establishment of the New Self-Government Institution in NAD69 4.5. Recommendation 70 5 CONCLUSION 73 LIST OF TABLES 74 BIBLIOGRAPHY 75 TABLE OF CASES 81 Acknowledgement The fountain of youth is never stop learning something. This contemplative proverb was the thing that intrigued me the most during my study in Lund, Sweden, besides what Prophet Muhammad pbuh said about to study and get knowledge even to China. Moreover, I am very pleased to be accepted as a student at Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University. I am very lucky, indeed, Alhamdulillah. Through it, I have acquired a lot of new knowledge on international human rights law hitherto so that hopefully I am able to apply the knowledge to my society based on my capacity as an NGO activist and human rights trainer in Indonesia, whilst the same time broadening my ‘circle of influece’, as Stephey R. Covey conceived, so people can live up their life in peace and harmony respecting and reminding each other. Nonetheless, there are persons to whom I dedicated my thesis. Firstly, I would like to give my sincere gratitude and credit to Professor Gudmundur Alfredsson, whose his knowledge in international human rights law, particularly minority rights and autonomy, had helped me to sharpen my analysis within this work. I would like also to give my profound concern to Mrs. Endang Purbandini (my mother) and Mr. Ardhayadi Mitroatmodjo (my father), as well as my brothers, sister and sister in law, who restlessly give their support, spirit, prayer and love to me. I would like to give my appreciation to Knut Asplund and Christina Kloster from NCHR, Oslo University, who informed me about seminar on Aceh posterior to tsunami in Oslo University and gave me important materials. I would like to give the same also to Professor Olle Törnquist (an expert on so-called ‘substantive democracy’ from Oslo University), Dr. Edward Aspinall (an Indonesianist from the Australian National University), Otto Syamsuddin Ishak (a well-known Acehnese activist from IMPARSIAL, Jakarta) and Agung Wijaya (an activist from DEMOS, Jakarta) for giving me their knowledge and precious time to have a dialogue with me concerning to Aceh conflict. Besides them all, I am also greatly indebted to Racan Osman, Imrul Alam, Abdul Hakeem Yaqin and Jonas Lundahl, who had corrected my English, and Hannah Alrashid, who had showed me a complete library about democratisation in Indonesia at SOAS (the School of Oriental and African Studies), London. I would like to spare my special thanks to Lena Olsson and Habteab Tesfay, who had assisted me to find related books and other materials I needed and share stories about their experiences in life. Lastly, I would like to make my genuine prayer to Mrs. Nuraeni Ranawijaya Leoson, who had willingly become my “mother” in Sweden as if I were her own son, despite she has her own children. May Allah bestow them with His righteous path, unlimited mercy and love. 1 Abbreviations AGAM = Angkatan Gerakan Aceh Merdeka (sub-institution of GAM consisting of the youths) CoE = Council of Europe CSCE = Conference for Security and Cooperation in Europe CRC = Convention on the Rights of the Child 1989 DPR = Dewan Perwakilan Rakyat Daerah; People’s Representative Council DPRD = Dewan Perwakilan Rakyat Daerah (Regional People’s Representative Council) DOM = Daerah Operasi Militer (Military Operation Zone) FGM = Female Genital Mutilation GA = UN General Assembly GAM = Gerakan Aceh Merdeka (Free Aceh Movement) GC = General Comment GDP = Gross Domestic Product GoI = Government of Indonesia HCHR = High Commission for Human Rights HCNM = High Commissioner on National Minorities HRC = Human Rights Committee HRComm = Human Rights Commission ICCPR = International Covenant on Civil and Political Rights 1966 ICERD = International Convention on the Elimination of All Forms of Racial Discrimination 1965 ICESCR = International Covenant on Economic, Social and Cultural Rights 1966 ICJ = International Court of Justice IDR = Indomesian Rupiah ILO = International Labour Organisation Komnasham = Komisi Nasional Hak Asasi Manusia (National Commission of Human Rights-Indonesia) MoU = Memorandum of Understanding concluded by the GoI and GAM on 15 August 2005 in Helsinki, Finland NAD = Nanggroe Aceh Darussalam, a new given name for the Aceh Province since 2001 under UU 18/2001, literally means ‘The Land of Aceh of House of the Peace’ NGO = Non-Governmental Organisation OHCHR = Office of the High Commissioner on Human Rights OP = Optional Protocol OSCE = the Organisation for Security and Cooperation in Europe Res. = Resolution SC-PDPM = Sub-Commission on Prevention of Discrimination and Protection of Minorities TNI = Tentara Nasional Indonesia or Indonesian National Military UN = United Nations UDHR = Universal Declaration of Human Rights 2 USA = United States of America USD = USA’s Dollar USSR = United Socialist Soviet Republic UU…/… = Undang-Undang (Law or Act, followed by number and year) WGM = UN Sub-Commission Working Group on Minorities 3 1 Introduction 1.1. Background This work attempts to analyse and evaluate the full realisation of the autonomy granted to NAD Province by UU 18/2001 and to expound the MoU concluded by GoI and GAM on 15 August 2005 as to whether it would be a solution to cease permanently the perpetual conflict between GoI and GAM for around 29 years.