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This Aide-Mémoire has been prepared with the kind assistance of
Planufer 92d, 10967 Berlin,
Since the 58th session of the UN Commission on Human Rights a number
of positive developments have taken place in Indonesia. Some key aspects
of these are that agreements to resolve conflicts in Aceh, the Moluccas
and Poso/Sulawesi have been signed, that the military and police have announced
that they will relinquish their seats in Parliament and that Constitutional
amendments codify some changes concerning Indonesia's political system.
As is well known, Indonesia has fallen victim to a severe terrorist attack, which resulted in a huge loss of life and had devastating consequences, especially for the population of Bali. Since the attacks, radical Islam in Indonesia has increasingly been a focus of attention of the international community. This confronts Indonesia with the problem of drawing a clear line between political Islam and political violence legitimised by way of invoking the religion of the majority of the population. A hasty reaction of the Government has been the issuance of anti-terrorism legislation. This, however, contains provisions of which is feared that their application might reverse some of the achievements of Indonesia's tentative democratisation process.
While acknowledging the positive developments in Indonesia and conceding that the country is in a difficult situation, it needs to be noted that the overall human rights situation in Indonesia during the reporting period has, unfortunately, not improved as compared to the previous year: An increase of military/police presence and of human rights abuses can be seen in regions with independence movements like Aceh and Papua. And perpetrators of human rights violations, both past and present ones, still enjoy impunity, a fact that works to the detriment of, amongst others, the mentioned initiatives to resolve conflicts.
Under domestic and international pressure, in late 2000 Indonesia enacted
the Law on Human Rights Courts which is the legal basis for the ongoing
trials before Ad Hoc Human Rights Courts concerning gross violation of
human rights committed in East Timor in 1999. Most verdicts have now been
handed down and have, like the entire trial proceedings, provoked vociferous
protest: Only against 18 suspects have charges been brought, many other
high ranking suspects have not been indicted at all. Ten of the fourteen
defendants who have been handed down a verdict so far have been acquitted.
Four have been sentenced to minimum and sub-minimum jail terms: Former
East Timorese militia leader Eurico Guterres has been sentenced to the
minimum sentence of ten years imprisonment. Sub-minimum penalties have
been handed down to the former Governor of East Timor, Abilio José
Soares, the Indonesian former Chief of Dili military sub-district, Lt.
Col. Soedjarwo, and to the former Chief of Dili Police, Lt. Col. Hulman
Gultom, who have been sentenced to three, five and three years imprisonment
Thus basically impunity prevails. Apart from the sentences, the entire criminal proceedings displayed numerous flaws. The most severe were the absence of key witnesses, an insufficient witness protection program, the very late introduction of video-conferencing technology to present witnesses, the fact that no official documents, which might have unveiled the chain of command were included in the trials and the general failure to perceive the seriousness of crimes against humanity. The trials thus failed to reveal the role of the military in organising the violence. The flawed judicial proceedings displayed in the trials as well as the verdicts that to the largest part continue the tradition of impunity do not bode well for further attempts to bring perpetrators of past gross human rights violations in Indonesia to justice.
The GoI and the Indonesian Parliament have furthermore shown great reluctance to take steps to initiate proper legal proceedings with regard to other gross human rights violations. One problem concerning gross human rights violations perpetrated before the enactment of the Human Rights Courts Law is, that although there is no general time limit on the applicability of the Law included in the Law itself, Parliament has retained for itself the - legally codified - right to decide on a case by case basis whether past incidents are to be considered gross violations of human rights and to be prosecuted as such - or not.
The announcement of the Indonesian military and police in August 2002
to relinquish their seats in the two Chambers of Parliament is certainly
a positive step. It should, however, not be (mis)read as the military's
withdrawal from politics and its self-limitation to the task of national
defence. The army entertains a so-called territorial command structure,
which is a military structure parallel to the nominally non-military administrative
structure reaching from national down to village level. The creation of
new regional commands in the Moluccas and recently also in Aceh shows that
rather than dismantling the territorial command structure, as has continuously
been called for, an expansion of the latter is taking place.
The Indonesian military is furthermore still deeply entrenched in business. As only an estimated 30% of the military's expenditures are covered by the official state budget, other means for generating income are sought by the generals. Involvement in illegal activities notwithstanding, enterprises run by the military are an important source of revenue. The military's insistence on upholding the territorial command structure must also be seen in this light: This structure is of vital interest for the military also for financial reasons as, firstly, it can obtain resources from regional budgets, and, secondly, the army's overall presence enables it to engage in other 'protection' activities, e.g. for transnational corporations.
The increasing strength of the Indonesian military also shows elsewhere: The separation of military and police as had been introduced after the fall of Suharto has increasingly been weakened in the aftermath of 9/11 and the Bali attacks, with military agencies 'supporting' the police in the hunt for terrorists. In this respect, the mentioned expansion of the territorial structure can also be viewed as strengthening the position of the military vis-á-vis the police.
Lack of legal and judicial reform
The Constitutional Amendment of 2001 enshrines in the Indonesian Basic
Law that Indonesia is a Constitutional state under the rule of law and
that the judicial authority is an independent one. However, since then
neither of the provisions has been supported by implementing legislation.
And the lack of judicial independence in Indonesia goes hand in glove with
the notoriously high degree of corruption. When the UN Special Rapporteur
on the Independence of Judges and Lawyers, Param Cumaraswamy, visited Indonesia
in July he criticised that corruption in the country was endemic. Apart
from corruption, also the exertion of political pressure is a problem of
the Indonesian judicial system. There is strong suspicion, that in several
cases law enforcement officials and members of the judicial system have
been under threat, at times even fearing for their lives.
Concerning the ratification of international human rights instruments Indonesia has (again) fallen short of its own time schedule for accession as outlined in the 1998 Human Rights Action Plan. Furthermore, Indonesia has so far only insufficiently brought domestic legislation into accordance with ratified international instruments.
Legal and political developments in the aftermath of the terrorist attacks on Bali are cause for great concern: The Anti-Terrorism Decree that had promptly been issued by the GoI after the attacks is reportedly in essence the previously debated controversial Draft Law on Terrorism, which could not be agreed upon in Parliament. Numerous of its provisions deviate from or are contrary to stipulations in Indonesia's Code of Criminal Procedure and to the International Covenant on Civil and Political Rights, accession of which is, according to the Human Rights Action Plan, envisaged by Indonesia for 2003. The most worrisome provisions in the Anti-Terrorism Decree are those that empower investigators to arrest terrorist suspects on the basis of initial evidence taken from intelligence reports and detain them for up to six months. Furthermore, the very definition of 'terrorist' is cause for concern as it is extremely broad and thus open to abuse. Indonesia needs an Anti-Terrorism Law, which abides by the principles of rule of law and is not detrimental to other provisions in Indonesian legislation, which are (relatively) in accordance with international standards concerning criminal procedure.
Human Rights Defenders
In 2002, human rights defenders throughout Indonesia have been subject to violations of their rights, to harassment, physical attacks and even to death threats. Some were even forced to seek safety abroad. In Jakarta, the office of the human rights organisation Kontras was severely attacked by hooligans, who are suspected of being connected to high military officers. Kontras staff was injured, the office equipment destroyed, files were stolen. In addition, Kontras was repeatedly threatened because of its involvement in investigating past human rights violations. In another incident, during a demonstration for the poor in Jakarta, fifteen people affiliated to the Urban Poor Consortium were attacked and severely injured. In Papua, human rights defenders were kept under surveillance, threatened and in some cases also physically attacked. The Institute for Human Rights Study and Advocacy ELSHAM in Jayapura has suffered from continuous persecution: With regard to its investigation activity the organisation's supervisor was threatened with defamation charges; relatives of the director of ELSHAM fell victim to a bomb attack on their car which left them injured; another ELSHAM volunteer was a victim of a motorcycle attack; ELSHAM's Jakarta office was ransacked, its co-ordinator left the capital and the office was closed due to the insecure situation. Also in Aceh activists have been subject to harassment and have lived under continuous threat.
The new Law on Special Autonomy for Papua, which came into effect on
January 1st, 2002, was a new approach of the GoI to prevent separation
of the province. However, the GoI shows great reluctance to sincerely solve
the conflict in Papua by political means: The GoI does often not comply
with the new Law and implementing legislation has yet to be issued. More
bluntly demonstrated is this reluctance, however, in the omnipresence of
the security forces, which has led to an increase of tension and human
rights violations such as restrictions of the freedom of movement, intimidation
of the population, unlawful detentions, forced disappearances, torture
and extra-legal executions. In addition to military units, a growing number
of militias are active in Papua, which have either moved in from the Moluccas
or East Nusa Tenggara or are recruited in Papua. There is strong evidence
that the military supports the recruitment and formation of militias like
Laskar Jihad, Barisan Merah Putih or Tentara Bantuan Operasi.
Cases of past human rights violations like Abepura (2000) and Wasior (2001) remain unsolved. In the case of the murder of the Chairman of the Papuan Presidium Council, Theys Eluay, (2001) investigations by a Government-backed team had only got under way after long delays. The accused, eleven members of the Special Forces (Komando Pasukan Khusus, Kopassus) are now tried for common rather than human rights crimes and trials take place before military courts. Police investigations into the attack on two vehicles of PT. Freeport employees, which killed three people, two of them Americans, also hinted at Kopassus involvement. The lack of credible investigation and appropriate follow-up legal proceedings in these cases has eroded the already small confidence that the Government might improve the human rights situation.
Numerous efforts to solve the Aceh conflict by way of signing cease-fire
agreements and granting special autonomy to Aceh (effective since January
1st, 2002) have failed to stop the fighting between the Indonesian military
and the independence movement Gerakan Aceh Merdeka (GAM). It is estimated
that 1,230 people have been killed in the year 2002. Both the Indonesian
military and the independence fighters have committed massive human rights
violations, including murder, torture, rape, forced disappearances and
arbitrary detentions. Thousands of Acehnese displaced persons have sought
refuge in camps and mosques. The process of bringing perpetrators of serious
human rights violations, past and present ones, to justice has - if at
all existent - been very disappointing. Calls to try perpetrators for human
rights abuses have generally received weak responses from the Government
or were even rejected outright.
After long international mediation efforts, on December 9th, 2002, the GoI and GAM signed the Cessation of Hostilities Agreement. It is too early to judge whether international monitoring of the withdrawal of Indonesian troops on the one hand and of the disarmament of GAM on the other will lead to a lasting peace in the region. It would be unrealistic to expect drastic changes within such a short period of time. There are still deaths to be mourned. Nevertheless, slight improvements can already be observed. It is important that the signing of the Agreement is only viewed as a very first step on the way to end hostilities in Aceh. The establishment of substantive and lasting peace in the province requires the involvement of civil society in the process, the establishment of a functioning independent judicial system and the addressing of past human rights abuses. Long-term commitment of the International Community is vital in this respect.
Peace agreements in Poso and in the Moluccas (Malino I & II Agreements)
have transformed the communal conflicts there into a fragile 'peace' -
or rather 'non-war' -, whereby the regions remain in a state of continuous
tension: Despite the withdrawal of the militias human rights violations
have continued, albeit on a reduced scale. However, some of the still armed
militiamen in possession of local identity-cards have stayed on and occasionally
instigate violence, this especially in Poso. Refugees of the Moluccas,
where, since 1999, the conflict has claimed approximately 9,000 lives,
constitute the largest part of Indonesia’s approximately 1,25 million internally
displaced persons who are in dire need of support. One indicator for the
fact that peace in the two regions is still a long way off is that Muslim
and Christian communities live still segregated in both the Moluccas and
Poso. A key detriment to the establishment of substantive peace there is
the fact that perpetrators of human rights violations still enjoy impunity.
In 2002, furthermore numerous small-scale conflicts have affected Indonesia. Most of these had started as conflicts over land-rights and resources. Indonesian police and company security forces are responsible for persistent human rights abuses against indigenous communities. Abuses include land seizures without compensation and brutal attacks on local demonstrators. In many cases the industrial processes abrogate the rights of local people to health and to appropriate living conditions by destroying or poisoning the environment. Several industries in different parts of Indonesia are involved in recruiting not only military members as security personal, but also militias, who often attack residents. The newly established regional autonomy contributes to what can be called a decentralisation of violence into basically every level of Indonesian society. New investment-friendly policies attract companies to ever more remote areas. There is grave concern that political initiatives aiming at the necessary economic recovery will contribute to further sacrifices of human lives and human rights.
On the basis of the situation outlined above, we recommend the following to the 59th UN Commission on Human Rights:
I. In order to end impunity
II. In order to ensure the protection of human rights in Indonesia
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