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.
- Criminal trials
- Civil trials
- Military or joint military-civilian trials
- Adminstrative courts
- Komnas HAM procedures
- Human rights law procedures (ad hoc and non ad hoc human rights courts)
- Truth and Reconciliation Commission procedures
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.
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.
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.
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:
- the international definition of impunity,
- its limits as to which human rights violations are involved,
- its limits as to which perpetrators are accountable,
- 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. 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 here.
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:
- Reporting procedure under the UN Covenant of Civil and Political Rights
- Individual Complaint Procedure under the UN Covenant of Civil and Political Rights
- Reporting Procedure under the UN Convention Against Torture
- Universal Periodic Review by the UN Human Rights Council
- Special Procedures of UN Special Rapporteurs (on Fair Trial, on the Independence of the Judiciary, on Extra-judicial Executions, on Torture, etc.)