Legal instruments

Statute of limitations

On 7 september 2022 the murder of Munir entered a new phase as the period of the statute of limitations, 18 years in the case of a murder, entered into force. Because of the lapse of time the case cannot be investigate or prosecuted anymore. Two years earlier [in 2020] the Komnas HAM had been requested by NGO KASUM to declare the murder a serious human rights violation, which would by law result in the crime to remain prosecutable. Komnas HAM did only in september 2022 decide to establish an ad-hoc team to investigate the legal basis of the murder to be declared a serious human rights violation.

“Of course the murder of Munir is a serious human rights violation”: Usman Hamid, director of Amnesty International Indonesia declines invitation of the Komnas HAM

https://www.amnesty.id/segera-tetapkan-kasus-pembunuhan-munir-sebagai-pelanggaran-ham-berat/

Press Release Amnesty International Indonesia, 07-09-2022

The murder of human rights defender Munir is a serious human rights violation, said Amnesty International this morning at a meeting commemorating that Munir died 18 years ago. “All evidence is available that this was an attack against  a human rights defender such as Munir. The attack was systemic as a part of state policy especially by the BIN (the National Intelligence Body).

The attack resulted in Munir’s death [in 2004] and forms a threat for the safety of all other human rights defenders,” said Usman Hamid, executive director of Amnesty International Indonesia.

“Of course Komnas HAM should declare the murder a serious human rights violation in the category of crimes against humanity and not delay the procedure further, “ he added.

The final report by the Tim Pencari Fakta (TPF) Munir has shown that his death is related to his activities as a human rights defender, including his criticism against state institutions such as the BIN. In its recommendations the TPF pressured the President to establish an Independent Investigation Team and to order the Head of the Indonesian Police to implement an in-depth investigation into 5 persons, including the Head of the BIN considering their possible role in the attack against Munir.

As it turns out only three persons have been prosecuted in relation to the death of Munir, all of them staff of Garuda Airlines. However, there is a  strong suspicion that the most important suspect responsible for the death of Munir, has not yet been judicially investigated.

The former staff member of BIN, Muchdi Purwopranjono has been prosecuted in 2008, but he was acquitted. Then in 2016 President Joko Widodo promised publicly that he would solve the case.

Up till this day the Indonesian Government has not published that final TPF report [of 2005]. That precisely is in violation with the Presidential Decree no. 111/2004 on the Establishment of the Special Fact Finding Investigation Team on the death of Munir, which formally ordered the government to publish the TPF report so that the Indonesian society would be informed.

“There is a serious problem in this country with regard to the prosecution of serious human rights violations of the past. The victims and their relatives are often not heard, then how can they get justice,“ said Usman Hamid.

On September 7, 2020, the Action Committee for Solidarity for Munir (KASUM) submitted a judicial opinion with regard to the death of Munir to the Komnas HAM, as part of a formal complaint. The aim was to have the Komnas HAM declare this case a serious human rights violation, so that a procedure of special investigation based on the Law 26/2000 can be started without delay.

“Two years have passed since and only now the Komnas HAM has announced the establishment of an ad-hoc team after the formation of a team for analysis. I appreciate the trust that has been given to me to become a member of the ad-hoc team, but I decline this appointment. The Komnas HAM should immediately declare the murder of Munir as a serious human rights violation. For us there is no doubt anymore that this is a crime against humanity,” said Usman.  

“Moreover the working period of the commissioners will only be two months more. That will make it the more difficult for the ad-hoc team to work effectively and cover all aspects comprehensively, including those members of the Komnas HAM who want to continue working on the results of their work.

Background

On September 7, 2022, three commissioners, Taufan Damank, Sandra Moniaga and Choirul Anam announced the formation of an ad-hoc team to investigate the suspicion of a serious human rights violation of the murder of human rights defender Munir Said Thalib. The team will consist of the Komnas HAM members, its Chairperson Taufan Damanki and Sandrayati Moniaga and three persons from other human rights organisations.

In its press-release the Komnas HAM said it was still looking for three members from external organisations and mentioned Usman Hamid as one of the possible external members of the team who had expressed his willingness. However, he had not yet been consulted and Usman has requested some time to consider, and decided to decline the invitation in the end.

[Translated by Martha Meijer https://www.amnesty.id/terbaru/siaran-pers/ .]

Amnesty chief won't join Munir ad hoc team, wants case declared gross rights violation

Kompas.com - September 7, 2022

Amnesty International Indonesia Executive Director Usman Hamid has refused an offer to become a member of the Munir Murder Case Ad Hoc Investigation Team being formed by the National Human Rights Commission (Komnas HAM). "Yes, that's correct (I refused to become a member of the ad hoc team)", said Hamid in an SMS message on Wednesday September 7.

Hamid refused to join the team because in his view the assassination of renowned human rights defender Munir Said Thalib was clearly a gross human rights violation.

Because of this, he believes that Komnas HAM does not need to form an ad hoc team to determine if the case is a gross human rights violation. "I appreciate the trust given to me [in asking me] to become an ad hoc team member but I have refused the appointment. Komnas HAM must immediately declare the Munir assassination as a gross human rights violation. For us, there is no longer any doubt that this crime was a crime against humanity", said Hamid.

In addition to this, Hamid said that the work of the ad hoc team to be formed by Komnas HAM would be difficult to implement because its commissioners are due to be replaced in two months’ time.

On the other hand, Hamid also said that Komnas HAM already has all of the evidence needed to designate the case as a gross human rights violation. "Komnas HAM must indeed immediately declare Munir's case as a gross human rights violation in the category of crimes against humanity, without delaying it further", he said.

Earlier, Komnas HAM appointed five members to the ad hoc team to investigate whether or not the Munir case is an alleged gross human rights violation. One of them was Hamid who was formerly [in 2005] the secretary of the Fact Finding Team (TPF) into the Munir murder case.

Komnas HAM Chairperson Ahmad Taufan Damanik explained that the commission appointed two Komnas HAM commissioners as internal representatives on the team, namely himself and research division commissioner Sandrayati Moniaga. The other three member of the team will be members of the public who are acquainted with the Munir case.

"One of the three has already been contacted and has declared their readiness [to join the team], namely Brother Usman Hamid. We are in the process of contacting the other two to ask if they are ready, but because there has not been any response yet, we can't mention their names today", said Damanik during a press conference at the Komnas HAM offices in Jakarta on Wednesday. In the end however, Hamid refused to join the team after asking for time to make a decision.

[Translated by James Balowski. The original title of the article was "Usman Hamid Tolak Jadi Anggota Tim Ad Hoc Kasus Pembunuhan Munir".]

Our debt to Munir

The Jakarta Post editorial, 08-09-2022

This is not the first, and most likely not the last, time that we write an editorial about Munir Said Thalib, his tragic death and how the state has, again and again, failed to keep its promise to shed light on his murder and bring its perpetrators to justice.

But this year marks a grim milestone in the long quest for closure in his murder case, which has officially reached its statute of limitation, making it legally impossible for the state to reopen the case should it continue to treat it as an ordinary crime.

It has been 18 years since his assassination on Sept. 7, 2004. He was poisoned and died aboard a Garuda flight from Singapore to Amsterdam. And his killers are still out there, scot-free. Several people accused of committing or abetting the murder were acquitted. Munir may be just one of many whose lives were unjustly taken for speaking up to power, for standing up against state violence and injustice.

But his murder was particularly chilling as it was carried out in the light of the Reform era, a new era of democracy in which no one was supposed to fear for their lives for taking a political stand. In our eulogy of him 18 years ago, we said “his passing leaves a huge vacuum in a nation that needs a thousand Munirs to address its appalling human rights record”.  then-president Susilo Bambang Yudhoyono was right to make the case that the killing of Munir was a “test of our history”. It is such a shame that he stepped down from power failing that test, setting a precedent for his successor, President Joko “Jokowi” Widodo, who appears to be even less interested in righting the wrongs of the past.

Human rights groups have urged the National Commission on Human Rights (Komnas HAM) to classify Munir’s killing as a gross human rights violation.

The commission, however, has been dragging its feet in its response, and was only able to form an ad hoc team to probe the case on Wednesday, the exact day the case expired.

It has announced that commissioners Taufan Damanik and Sandrayati Moniaga, will serve in the newly formed team, along with Amnesty International executive director Usman Hamid. It has yet to announce the other two members of the team. There is no guarantee that the team will be able to work effectively, given the apparent tensions within the human rights body on whether such a team was needed in the first place, and the fact that the current commissioners will end their term soon.

But we should have learned by now that the fight for justice can be long and painful, especially when the political cards are stacked against such a struggle. No matter how bleak the picture is, this is our last-ditch attempt to keep our hopes alive that justice will one day be served for Munir and his family, and we can finally end the case the right way, that we can finally pass this one “test of our history”.

We owe this to Munir, his family and ourselves.

Domestic legal procedures

In Indonesia, on paper, there are surprisingly many opportunities, to realise prosecution of human rights violations. However, these different laws and legal mechansisms often act as obstacles for clear procedures. Just like there are three different mechanisms to punish corruption (an ordinary court, a "corruption court" (Tipikor) and a "special crimes prosecutor"), the many procedures to prosecute human rights violations make it more difficult to come to clear results.

In fact the mechanisms of the National Human Rights Commission (Komisi Nasional Hak Azasi Manusia, Komnas HAM)  and the legislation on human rights tribunals should be supportive in handling the prosecution of perpetrators of human rights violations. Reality is different. Quoting from different sources we here give some explanation on these, often conflicting mechanisms.

Activists or victims working on the prosecution of perpetrators of human rights violations will have to consider all opportunities. They all have their pros and cons.

Criminal law:

Currently (2016) the Criminal Code (KUHP) and the Criminal Procedure Code (KUHAP) are under revision by the Parliament (DPR), but according to The Jakarta Post the procedure is expected to take some time. As it is now, the Criminal Code for instance does not define torture as a crime.

Military criminal law:

Military trial procedures are flawed with the lack of impartiality of the law-enforcement officers.

Administrative law:

Procedures before an administrative court (PTUN) are up to now anly used for demanding rehabilitation of the victims, and for procedural issues (such as regards the publication of the TPF-report in the Munir case.

Komnas HAM procedures:

Komnas HAM procedures lack sufficient power to achieve follow-up activities based on their "pro-justicia" reports.

Human rights courts:

And on paper the special human rights legislation (Law 26/2000) may open the possibilities for human rights courts, but the implementation is disappointing: the permanent courts are hardly operational, and the ad hoc courts need prior approval by the Parliament (DPR) whose members are often - as well as the president who has to make the proposal - in one way or other involved in the violations that human rights activists want to be prosecuted.

TRC procedures:

It remains to be seen how the Aceh Truth and Reconciliation Commission will be functioning (2017: analysis to be added)

International law procedures

Under international law it has been agreed that impunity concerns the lack of judicial or other prosecution following serious human rights violations such as torture, extra-judicial executions, enforced disappearances and slavery. This implies a limit to those four types of violations for all instruments that can be invoked under international law. It means also that diplomatic interventions will be limited to impunity after those four types of violations (usually called integrity rights, because the violate the integrity of the body).However there are human rights violations that go beyond these integrity rights, but are also serious in their impact and number of people affected. There are hardly any criteria by which it can be decided how serious is serious. Apart from the human rights violations that have been documented under the heading of "documentation" it could be considered to also include violations of civil and political rights like the closure of several printed media in 1984 and the attack on the office of a political party in 1996.

Among the Indonesian human rights community there is the awareness that there are several serious violations of social and economic rights that they regard as going with impunity. The international debate on fighting impunity has been hampered by the States' unwillingness to be confronted with strict measures. Impunity can be found in many countries and the United Nations is of course functioning as a meeting of culprits as well as taking the role of the international policeman. This dilemma pops up also in the debate on the Rome Statute and the International Criminal Court. This may be the reason that the Updated Set of Principles by Prof. Orentlicher never progressed beyond a list of good intentions.If impunity is given a wider scope in the direction of violations of all human rights, additional analysis is necessary to find who has been responsible - a much more difficult matter of truth finding as a first step, because there will be policy-makers, politicians and local authorities be involved. Only after that the following steps as doing justice, realizing rehabilitation and guaranteeing non-recurrence can be taken. However, in violations of civil and political, and social and economic rights the responsibility or the line of command is even more difficult to establish than in the earlier mentioned integrity rights.

This page presents four sides of the international context of impunity:

  1. the international definition of impunity,  
  2. its limits as to which human rights violations are involved, 
  3. its limits as to which perpetrators are accountable, 
  4. the underlying principles.

 Views about impunity differ widely in place and in time. The international discourse on impunity only started after the break‐down of the bipolar world order in 1989. The expression is associated with situations of gross human rights violations created or condoned by the State or created by a breakdown in the authority of the State and its institutions. The expression could also apply to any situation in which a violation of human rights goes unredressed.

The main analysis of impunity was made by Prof. Louis Joinet in his reports for the Sub‐Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights (UNCHR) in 1996 and 1997 (Joinet 1996‐1997) and in the resulting Set of Principles that was approved by the Commission in 1997.

In April 2005 the issue of impunity was on the agenda of the 61st session of the UN Human Rights Commission. It approved the revised Set of Principles drafted by the Independent Expert Prof. Diane Orentlicher. Prof. Diane Orentlicheer It contains a new definition of impunity and defines its limits with regard to shich human rights violations are involved, which perpetrators can be held accoauntable and what consequences should be included. You can read the whole report pdfhere. 

With regard to international prosecution, succesful cases are rare. In the U.S. Alien Torts Act case, a court handed down a $14 million judgment against Maj. Gen. Sintong Panjaitan to the mother of a victim of a 1991 massacre in which an estimated 200 civilians were killed in Dili, East Timor. However, this judgment can only be enforced if he enters the US jurisdiction. In the UN-sponsored trials in Timor-Leste regarding the violence in 1999, 55 trials resulted in 84 convictions during the same period as the total failure of the ad hoc process in Jakarta concerning the same events. (ICTJ - KontraS 2011, p. 5). Prosecution in the context of the UN Rome Statute of the International Criminal Court in The Hague is not foreseeable in the near future. Indonesia has not yet ratified the Rome Statute.

Additionally there are a number of non-judicial international accountability procedures, such as:

      1. Reporting procedure under the UN Covenant of Civil and Political Rights
      2. Individual Complaint Procedure under the UN Covenant of Civil and Political Rights
      3. Reporting Procedure under the UN Convention Against Torture
      4. Universal Periodic Review by the UN Human Rights Council
      5. Special Procedures of UN Special Rapporteurs (on Fair Trial, on the Independence of the Judiciary, on Extra-judicial Executions, on Torture, etc.)