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Interim Report on Indonesian Ad Hoc Human Rights Tribunals

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Interim Report on Indonesian Ad Hoc Human Rights Tribunals INTENDED TO FAIL The Trials Before the Ad Hoc Human Rights Court in Jakarta Written by Professor David Cohen Director, UC Berkeley War Crimes Studies Center Edited by the International Center for Transitional Justice INTRODUCTION About the ICTJ The International Center for Transitional Justice (ICTJ) assists countries pursuing accountability for mass atrocity or human rights abuse. The Center works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved. It provides comparative information, legal and policy analysis, documentation, and strategic research to justice and truth-seeking institutions, nongovernmental organizations, governments, and others. The ICTJ assists in the development of strategies for transitional justice comprising five key elements: prosecuting perpetrators, documenting violations through nonjudicial means such as truth commissions, reforming abusive institutions, providing reparations to victims, and advancing reconciliation. The Center is committed to building local capacity and generally strengthening the emerging field of transitional justice, and works closely with organizations and experts around the world to do so. The ICTJ in Timor-Leste The ICTJ has been involved in helping Timor-Leste deal with the legacy of past human rights abuse since 2001. The Center has been closely involved in the creation of the Commission for Reception, Truth and Reconciliation and in providing technical advice and assistance as it has progressed. The ICTJ has also worked closely with the Serious Crimes Unit and the UN Missions in Timor-Leste to try to help ensure that their efforts were as effective as possible in bringing perpetrators to justice. Our report, “Crying Without Tears: In Pursuit of Justice and Reconciliation in Timor-Leste: Community Perspectives and Expectations,” profiles the attitudes of almost 100 citizens of Timor- Leste regarding the issues of truth, justice, and reconciliation. Acknowledgements The ICTJ commissioned this report and provided substantial support for travel and translation. Professor David Cohen also received assistance in his work by the Wang Family Foundation, The East West Center (Honolulu), and the Ford Foundation (Jakarta). Special thanks are due to Asmara Nababan, formerly of the Indonesian Human Rights Commission, for his contributions; Aviva Nababan, who headed up the extensive translation efforts; Elsam in Jakarta, the human rights NGO that was unstinting in its support; and Sidney Jones, Indonesia Project Director at the International Crisis Group. At the ICTJ, Senior Associate Paul Seils coordinated the project and was responsible for the final editing of the report. Special thanks to ICTJ staff members for their time, especially Sarah Rutledge. Finally, we are grateful to Judicial Systems Monitoring Project for the basis of the table provided in Appendix 1. i About the Author Professor David Cohen is Director at the War Crimes Studies Center at the University of California, Berkeley. ii PREFACE In 1999, the East Timorese voted to become citizens of an independent state. Independence, first claimed in 1975, came at a high price, exacted over 24 years of Indonesian occupation. Even after the Indonesian government decided in early 1999 to allow the East Timorese to choose between autonomy within Indonesia or independence, supporters of independence suffered systematic violence at the hands of militia groups created and directed by the Indonesian army. The violence intensified before and after the vote for independence on August 30, 1999, and then reached its climax once the outcome was announced. Thousands were killed or injured, hundreds of thousands were displaced, and the systematic and massive destruction of property caused immense damage to the living conditions of an already poor and vulnerable population. The attacks on United Nations personnel, including the killing of several East Timorese staff members, added a special aspect of international concern to what were already clearly crimes against humanity. The international community was outraged as the media reported the violence. There were calls for an international tribunal to be created to investigate and prosecute the crimes, foremost among them the recommendation of the International Commission of Inquiry mandated by the UN Commission on Human Rights. This was not done, as Indonesia committed itself to ensure full accountability. The Indonesian Law 26/2000 instituted the Ad Hoc Human Rights Court. This report analyzes the trials held under that law in terms of the prosecution efforts and the quality of the judgments. However, it goes beyond this to assess the political and institutional context in which the trials took place. The inescapable conclusion of the report is that the trials as a whole must be regarded as a failure on every level, from technical competence to institutional integrity and political will. Some may point to the fact that six individuals, including high-ranking officials, have been convicted. However, the report shows that this is more due to the notable bravery of a few individual judges than to a credible system of justice. The International Center for Transitional Justice has worked closely with the people and institutions of Timor-Leste as they try to deal with the legacy of violent abuse in a way that both respects the dignity of victims and survivors and strengthens the rule of law in a democratic society. Ending the impunity of the Indonesian army is just as important— perhaps even more important—for the democratic future of Indonesia than it is for Timor-Leste. Justice for the atrocities that occurred in 1999, however, is not only essential from these perspectives, but also for the integrity of the international community as a whole and the United Nations in particular. We believe that this report will help to focus attention on how Indonesia has failed to live up to its commitments both to the victims of the crimes committed and to the international community. A second major respect in which this continues to be the case falls outside this report: Indonesia has failed to cooperate with the Serious Crimes Unit established by the UN Transitional Administration in East Timor. The senior Indonesian commanders responsible for operations in East Timor in 1999, as well other alleged Indonesian and East Timorese perpetrators now in Indonesia, have been indicted for crimes against iii humanity after investigation by UN prosecutors and investigators. Indonesia continues to fail to cooperate with the efforts of the Special Panel for Serious Crimes in Timor-Leste to bring perpetrators to justice. In February 2000 the United Nations Security Council encouraged Indonesia “to institute a swift, comprehensive, effective and transparent legal process, in conformity with international standards of justice and due process of law.” None of these criteria has been met. We trust that this report will be of some assistance to the UN and to others in forming an informed view about the trials and their context, and determining the appropriate course of action. Ian Martin Vice President International Center for Transitional Justice August 2003 iv ACRONYMS AND TERMS Attorney General AG Commission of Inquiry on East Timor KPP HAM Final Report of the Audit of the Public Prosecution Service of the Republic of Indonesia FRAPPS Indonesian National Army TNI Indonesian Army Special Forces Kopassus Indonesian National Police POLRI International Commission of Inquiry on East Timor (UN) CIET International Humanitarian Law IHL National Human Rights Commission (Indonesia) Komnas HAM Pasukan Pejuang Integrasi (Pro-Integration Forces) PPI Public Prosecution Service PPS United Nations Transitional Administration in East Timor UNTAET v INTENDED TO FAIL The Trials Before the Ad Hoc Human Rights Court in Jakarta EXECUTIVE SUMMARY This report focuses on the 12 trials that have taken place before the Indonesian Ad Hoc Human Rights Court since March 2002. Six of the 18 defendants have been convicted of crimes against humanity, receiving sentences ranging from 3 to 10 years. Those convicted include Indonesian National Army (TNI) officers, a militia leader, and police and civilian officials. All remain free pending appeal. The prosecution of Major General Adam Damiri, who in 1999 was regional commander (Pangdam Udayana) of the military region of which East Timor was a part, is the single most important of these trials. Notwithstanding the extremely unusual conduct of the prosecutor, who sought an acquittal at the end of the case, Damiri was sentenced to three years in prison on August 5, 2003. The prosecutor’s behavior foregrounds the deepest underlying problem in these cases: the lack of political will to prosecute and accept the outcome of the legal process. The fact that the judges convicted Damiri demonstrates the need for a detailed understanding of the trials’ technical and political complexity: the convictions say more about the bravery of some judges than the efficacy of the legal system. The verbal abuse and intimidation the judges suffered from Damiri and members of the Special Forces of the Indonesian Army, after his conviction, demonstrated clearly the real difficulties these judges faced. Apart from the Damiri case, the trials as a whole have been severely criticized from the onset, particularly since the first acquittals. The fact that only 6 out of 18 defendants have been convicted is one of the chief
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