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)
Referring to the original document for sources and referrals, we quote here for an overview the ICTJ-Kontras report "Derailed, Transitional Justice in Indonesia Since the Fall of Soeharto" (page 54):
Most prosecutions for mass human rights violations have been held in human rights or military courts. However, there are several examples of the criminal justice system being used to prosecute human rights-related crimes. The most prominent example is the case of the murder of Munir, in which three airline officials were convicted and one senior intelligence official was acquitted after a trial marked by irregularities.
The civilian court system is plagued by corruption, which makes prosecuting powerful and wealthy state actors problematic. When the actions were not part of systematic mass crimes, they are more appropriately dealt with in the criminal courts. However, in many cases it appears that if acts committed by state actors are not considered to rise to the level of the international crimes included in Law 26 of 2000 (genocide and crimes against humanity), they are not dealt with at all. This situation is exacerbated by the fact that individual human rights crimes such as torture are not included in the mandate provided by Law 26 of 2000, nor are they found in the national criminal law.
Quoted from the same ICTJ-Kontras report "Derailed, Transitional Justice in Indonesia Since the Fall of Soeharto":
Due to the failure of the human rights courts as well as the military, and criminal courts to hold perpetrators accountable, victims have sought other avenues for redress. While not widely utilized, some victims of serious crimes have initiated civil actions to claim reparation. Some of the barriers they find include difficulty in proving legal standing and the courts’ general unwillingness to address controversial cases.
The Civil Case Concerning 1965
The Jakarta Legal Aid Foundation used the civil law system as a form of advocacy through a 2005 class action civil suit against five former presidents. The action primarily sought compensation and rehabilitation for victims of the mass killings of 1965, in which it is estimated that 500,000 to one million Indonesian civilians lost their lives. The claim also sought an order compelling the government to issue a written apology, erect monuments to the 1965 victims, include an accurate history of events in the national curriculum, and repeal discriminatory legislation. One of the goals of this action was to redress the continuing discrimination victims still face with respect to their civil and political rights, property ownership, access to employment, and political freedom. For example, the identity cards of some former political prisoners are marked with a special code, disclosing their status as “former political prisoners” to every policeman or administrative officer scrutinizing their papers. The Central Jakarta District Court rejected the claim in September 2005, citing a lack of jurisdictional authority.
Throughout the New Order period, members of Indonesia’s armed forces could only be tried in military courts under the military criminal code and criminal procedure code. During the early stages of reformasi, joint military-civilian (koneksitas) courts were established with jurisdiction over offenses committed by military and civilians acting together, and presided over by a panel including both civilian and military judges.114 These courts operated with very little transparency: verdicts were not always disclosed to the public and there was no way to verify whether the sentences had been carried out.
The military courts and the koneksitas courts handled a number of mass violations during the New Order period and the early years of reformasi. The results reflect systematic efforts to protect perpetrators, particularly senior officers, from effective sanctions. In many cases, senior commanders regarded human rights violations as a matter of military discipline rather than criminal liability. In some cases, more junior members of the military forces were sacrificed to demands for accountability, although the penalties were extremely low compared with the gravity of the crimes. Even those convicted did not always serve their sentences, but merely were transferred to other units. Some were later promoted (see Box 3: Disappearance of Pro-democracy Activists).
During the period of military emergency in Aceh (2003-04), military courts processed hundreds of cases. In May 2004, former TNI commander Endriartono Sutarto reported that 429 breaches of military law had come before military courts with 57 soldiers convicted and receiving prison sentences.115 Not all were human rights violations, but those cases that were, demonstrated the absence of appropriate penalties and lack of transparency. Out of hundreds of documented human rights violations in Aceh only a handful have been brought to trial, all in military or koneksitas courts.116 Those few cases in which trials were held reveal a pattern of protecting senior officers and a lack of transparency in relation to whether those convicted actually served their sentences. Examples include the following:
- In January 1999, after the Free Aceh Movement (GAM) kidnapped soldiers, security forces rounded up dozens of civilians and held them in the local headquarters of the Indonesian National Youth Council (KNPI) in Lhokseumawe, North Aceh, for questioning by police. Some 50 soldiers from various units went to the building and beat the civilians, leaving 27 hospitalized and four dead. In January 1999, a military court in Banda Aceh sentenced a major to six years imprisonment. Four other soldiers were later sentenced to seven years, and all were dismissed from military service. However, the army provided no information about the location of their detention or date of their dismissal, making it impossible to verify if these officers actually served their sentences or are no longer in active service.
- A July 1999 attack on an Islamic religious school killed a religious leader, Teungku Bantaqiah, and 56 of his followers. Eyewitnesses said that members of the military shot the victims at close range and then forced other villagers to bury them. Officials at that time, Attorney General Marzuki Darusman and Komnas HAM Secretary General Asmara Nababan, publicly supported prosecution in a human rights court because the crimes were part of a systematic attack against civilians. Instead, the perpetrators went before a koneksitas court. An inquiry by a presidential fact-finding team named eight officers with ranks as high as colonel, and the indictment described the direct involvement of three lieutenant colonels.
The level of public attention on this major case led to trials resulting in convictions and some serious sentences. However, once again the process served to shield the senior leaders most responsible. Despite the fact that the accused gave evidence that they had been ordered to “school” the youth and that the commander used this term to mean killing of a detainee, the commanders were not included among those accused. Twenty-four low-ranking soldiers and one civilian were tried and convicted, receiving sentences from eight and a half to 10 years in prison. The officer overseeing the operation, Lt. Col. Sudjono, was indicted but disappeared from police custody and has not been rearrested. (He reportedly reappeared in Aceh during the martial law period.) An Amnesty International report on the case at the time noted that senior officers escaped scrutiny and that there were indications of witness intimidation.
Outside of Aceh, there have been at least four military trials including:
- In 1996, security forces took part in an attack on the office of the Indonesian Democratic Party (PDI), a major political party. An inquiry, established by President Abdurrahman Wahid in 2000, named 15 suspects, eight of whom were arrested. Other officials from the Ministry of Home Affairs and retired senior police and military officials were subsequently identified as being involved. Three years after the initial inquiry a koneksitas trial was convened for only four civilians and two soldiers. Only one civilian was convicted and sentenced to two months and 10 days imprisonment.
- In 2003, seven members of Kopassus were convicted for the murder of Papuan leader Theys Eluay and received strikingly lenient sentences of two- to three-and-a-half years imprisonment.
- In 2007 Indonesian marines fired on farmers protesting the expropriation of their land for use by a state-owned enterprise, killing four villagers and wounding eight. A military court in Surabaya in August 2008 sentenced 13 marines to brief sentences and the military rotated two senior officers from their posts. There was no attempt to investigate or prosecute any officer for command responsibility.
- In November 2010, four soldiers were tried in a military court in Jayapura for acts of torture against civilian detainees in Papua. The trial was held in response to international attention, brought about by a shocking video released on the Internet of Indonesian soldiers severely torturing two indigenous men, Anggenpugu Kiwo and Telangga Gire, on May 30, 2010, in Puncak Jaya, Papua. However, when the trial commenced it became clear that the accused were in fact being charged for a less serious assault in a separate incident of torture of detainees. Public outrage and international pressure finally led to a trial, with three soldiers from Battalion 753 charged with “insubordination.” Military prosecutors did not file more serious charges of assault because they claimed they could not get evidence from the victims who remain in hiding.
In 2000 Parliament passed a resolution that military personnel should be tried in civilian courts for violations of the civilian criminal code.This requirement was included in article 65(2) of Law 34 of 2004 on the Indonesian Armed Forces (“the TNI Law”). However, for the legislation to be implemented, Law 31 of 1997 on Military Courts also needs to be amended. More than six years later, this change has not taken place, blocking the intended result. Once again, the lack of commitment to change at the senior levels of government has nullified the practical impact of policy and legal changes.
In 2006 a group of teachers in Kebumen (Central Java) who had been illegally detained for several years (1965-1970), and as teachers been dismissed from their jobs, started a procedure against the Department of Education of which they had been employee until 1965, with the Pengadilan Tata Usaha Negara (PTUN). The PTUN is a court that functions in the context of Administrative law and is established in each kabupaten (district) capital, or city. In the first level it has the task of investigating, decide and solve conflicts in the area of the administration. The PTUN is established by Presidential decree and covers the district or city. The PTUN has a chair and a deputy chair, judges, a registrar and secretaries. This procedure was submitted to the PTUN of Kebumen district.
The demand of this group of 188 teachers was to be granted rehabiliatation and reject their illegal dismissal by the Ministry of Education in 1966. The verdict of the PTUN was positive: they were decided to be not guilty and should be granted rehabilitation and their good name and fame should be restored. The Ministry appealed against this verdict with the Pengadilan Tinggi Tata Usaha Negara in Jakarta. Again the verdict was positive: it upheld the earlier verdict. In 2008 even in the Supreme Court the request for a second appeal by the Ministry of Education was rejected in verdict No 69 K/TUN/2008.
However, the PTUN verdicts or the Supreme Court decision have never been implemented.
The role of the National Human Rights Commission (Komisi Nasional Hak Azasi Manusia, Komnas HAM) has been analysed in the ICTJ-Kontras report "Derailed" of 2011 and in later reports, especially with regard to its position vis-à-vis the Attorney General's Office (AGO). Technically, in prosecution procedures, the powers of the Komnas HAM remain very limited.
Summary conclusions of the ICTJ-Kontras report "Derailed", 2011 on the Komnas HAM
President Soeharto established Komnas HAM in 1995 to appease criticism of the regime’s human rights record. Although received with skepticism, the commission has demonstrated a capacity to monitor violations and advocate on behalf of victims. In 1999 the momentum of reformasi helped to revamp the commission’s mandate and powers through Laws 39 of 1999 and 26 of 2000. Law 39 changed the legal basis of Komnas HAM to that of an independent statutory body with a robust mandate in four areas: research, education, monitoring, and mediation on human rights issues. The law also gave the commission powers to receive complaints, conduct investigations, and subpoena witnesses.
In 2000 international pressure concerning the 1999 atrocities in East Timor contributed to passage of Law 26 on Human Rights Courts. This law provided Komnas HAM with powers to conduct inquiries into gross violations, make findings, and then forward completed files, with a recommendation for formal investigation and prosecution, to the AGO. The law defined gross human rights violations as crimes against humanity and genocide. Komnas HAM is empowered to monitor and report on human rights violations either through its general mandate under Law 39 or through its specific mandate to establish inquiries for particular cases under Law 26. The latter mandate is a double-edged sword: inquiries are pro justicia, meaning they are designed to potentially lead to prosecutions. However, the results of the inquiries cannot be made public, impairing the truth-seeking goals of its work.
Despite significant challenges, including a repeated failure of government officials and security forces personnel to respond to subpoenas, Komnas HAM has completed important inquiries, finding that crimes against humanity have been committed in a number of cases. However, when the completed files were forwarded to the AGO with a recommendation for formal investigation and prosecution, they were blocked; the AGO claimed that investigations cannot proceed because the files were administratively incomplete, or lacked adequate evidence, although Komnas HAM’s chair denied these claims. An additional obstacle is a dispute between Komnas HAM and the AGO over whether the attorney general is required to begin investigations based on Komnas HAM recommendations for human rights violations committed before Law 26 passed, or whether they must wait until the lower house of Indonesia’s parliament (DPR) and the president create an ad hoc court.
Both the delays (noted above) and this dispute may arise from an unwillingness to prosecute cases involving the military, which is still powerful, and the fact that during Soeharto’s regime the office of the prosecutor and the security forces were linked. This legal issue is discussed in more detail in the section on prosecutions. The passage of Law 26 of 2000 provided Komnas HAM with the power to conduct inquiries, determine whether crimes against humanity or genocide were committed, and recommend investigation and prosecution to the AGO. However, in five major cases of mass violations in which such findings were made, the AGO did nothing, claiming that the files were administratively incomplete (which Komnas HAM disputed).
In addition, the AGO and Komnas HAM continue to hold different views concerning the procedures to be followed for cases that occurred before Law 26 passed. This has placed these cases in legal limbo, which has continued for years without any serious effort by the government to resolve them. Senior military officials have repeatedly refused to cooperate with official truth-seeking inquiries, including failing to comply with summons issued by Komnas HAM and requests from President Susilo Bambang Yudhoyono in the Munir inquiry, without any repercussions. The requirement to appear in response to Komnas HAM’s summons is part of a national law. Despite this, the Minister for Defense told the press that Komnas HAM did not have the authority to compel retired military personnel to appear.
Concluding, regarding the five cases mentioned earlier in which Komnas HAM has recommended prosecutions, the attorney general has taken no action and no ad hoc court has been established. Those cases are
- Trisakti-Semanggi I-Semanggi II,
- Wasior Wamena (Papua),
- the May 1998 violence,
- and the enforced disappearance of activists from 1997 to 1998.
The 1965/66 report of Komnas HAM, 2012
In July 2012 Komnas HAM published a summary of its report on human rights violations in 1965/66. This report is very important in the sense that for the first time an effort has been made to describe the scope and the intensity of the human rights violations against those who were suspected of involvement in the so-called coup d'état on 1 October 1965. Incidents of people killed and disappeared, detained and held in slavery were investigated for the first time. That is very valuable. Alas, the methodology of the report, with its selection of 6 areas for investigation, and the omission to describe the concentration camps on the island of Buru, result in a lack of a conclusive overall picture. Thus the figures of hundreds of thousands of people killed, tens of thousands held in slavery for over 15 years and ongoing discrimination of those suspected and their children and grandchildren, could not be confirmed or corrected.
Still the recommendations are very important:
- to bring those responsible for the human rights violations, especially the heads of the Kopkamtib and some individual army commanders, to trial;
- to start a process of Truth and Reconciliation by establishing a special, independent commission.
The Attorney General's Office (AGO) was of the opinion that the Komnas HAM report was incomplete and has returned the report for improvement. Since then (December 2012) there has been no progress.
Early in the reform period, Law 26/2000 created a national legal structure to deal with crimes against humanity and genocide, and established four permanent regional human rights courts. However, 15 years later only one such court (Makassar) was established to try the Abepura (Papua) case.
In addition, specifically established ad hoc human rights courts were meant to handle cases that occurred before the law passed. These ad hoc tribunals can only be established by a decision by the Parliament. This turns out to be an obstacle. Ad hoc courts have been established for crimes in East Timor and Tanjung Priok. One of the conditions of the Aceh peace accord in Helsinki was that a human rights court be established for Aceh, but this has not been implemented. The Special Autonomy Law on Papua included provision for a human rights court for Papua, yet this has not been established either (See: ICTJ-KontraS: Derailed).
Indonesian and international human rights organizations have analysed this new legislation in depth.
Amnesty International analysis 2013 of Law No. 26/2000
The following is taken from the Shadow Report by Amnesty International to the United Nations Human Rights Committee (HRC), 2013. For the references: see the original document: Amnesty International Submission to HRC June 2013 and a summary of the Concluding Observations in English or in Indonesian: Report by HRC July 2013.
There remains a persistent culture of impunity for past human rights violations committed by the Indonesian security forces, including in Aceh, Papua and Timor-Leste (formerly East Timor). Attempts to bring the alleged perpetrators to justice have been grossly inadequate, and many persons suspected of serious crimes, including crimes under international law remain at large. Commitments to establish truth commissions have not been fulfilled. Victims of past violations have not been provided with full and effective reparation.
Gaps in the legal and institutional framework
The lack of an institutional and legislative framework that is fully consistent with international law and standards contributes to the failure to address impunity for past human rights violations in Indonesia. A Law on Human Rights Courts (No. 26/2000), established to try cases of “gross violations of human rights”, has very limited scope and has not been fully implemented. The small number of cases which have been prosecuted before the Human Rights Courts have all resulted in either acquittals or convictions being overturned on appeals.93 Attempts to pass a new law and enact a national truth commission have stalled six years after the Constitutional Court struck down the flawed Law on a Truth and Reconciliation Commission (No. 27/2004). Most victims are unable to access their right to an effective remedy before Indonesian courts and there exists no effective reparation programme.
Furthermore, Indonesia has yet to make concrete commitments to ensuring that crimes under international law will never be committed with impunity again, including by acceding to the Rome Statute of the International Criminal Court and ratifying the International Convention for the Protection of All Persons from Enforced Disappearance.
Flawed legal framework to prosecute human rights violations
Law No. 26/2000 on Human Rights Courts was established after considerable pressure by the international community on the Indonesian government to address serious crimes committed in Timor-Leste (the East Timor) in the context of the 1999 independence referendum. This mechanism, which provides for the setting-up of both permanent and ad hoc Human Rights Courts, contains a number of provisions which fall short of the Covenant’s requirements.
The Law on Human Rights Courts limits their jurisdiction to “gross abuses of human rights” (“pelanggaran hak asasi manusia yang berat”) which it defines only as genocide and crimes against humanity. Therefore it excludes other crimes under international law without any basis, including: war crimes, torture, extrajudicial execution and enforced disappearance.
Komnas HAM is the sole body expressly authorized to initiate and carry out preliminary pro justicia inquiries into alleged cases of “gross abuses of human rights” (Article 18 of the Law on Human Rights Courts). It is not clear whether prosecutors could conduct preliminary inquiries. Any restriction on the ability of prosecutors to conduct inquiries would be inconsistent with their independence and contrary to the UN Guidelines on the Role of Prosecutors, in that it limits their ability to select cases for investigation.
Articles 21 and 23 of the Law on Human Rights Courts provide that the investigation are to be undertaken and prosecutions conducted by the Attorney General, who is a political official, not an independent professional prosecutor. Moreover, the Law on Human Rights Courts is silent on whether decisions taken by the Attorney General, including not to proceed with an investigation or prosecution, can be legally challenged. Decisions on whether or not to open an investigation or to prosecute could be, or be perceived to be, politically motivated if sufficient safeguards are not put in place to ensure that these decisions are made on the basis of neutral criteria, such as the sufficiency of admissible evidence. Even the perception of political bias undermines justice. As long as his or her independence is not guaranteed, the Attorney General should have no role in deciding whether or not to investigate or prosecute. Such decisions should be taken in all cases by an independent professional prosecutor, in accordance with neutral criteria and without any political or other improper pressure.
It is particularly concerning that the only mechanism Komnas HAM can use to follow-up on the failure of the Attorney General to proceed with investigations into reports of human rights violations it has submitted, is to request a written statement from the Attorney General concerning the progress of the investigation and prosecution of a case (Article 25 of the Law on Human Rights Court). In practice, many of the cases that Komnas HAM has submitted to the Attorney General’s Office have not been investigated and prosecuted:
- The 1965-1966 violations: On 20 July 2012, Komnas HAM submitted a pro-justicia inquiry report to the Attorney General’s Office which found that government officials had been involved in the systematic persecution of members of the Indonesian Communist Party (PKI) and suspected communist sympathizers following the abortive 1965 coup. A range of human rights violations occurred in the context of the abortive 1965 coup, including unlawful killings, torture, enforced disappearances, rape, sexual slavery and other crimes of sexual violence, slavery, arbitrary arrest and detention, forced displacement and forced labour. An estimated 500,000 to one million people were killed and hundreds of thousands were held without charge or trial. Many victims and their families also faced violations of their social, economic and cultural rights, and continue to experience discrimination in law and practice. The Commission’s three year investigation found evidence that widespread human rights violations occurred nationwide between 1965 and 1966 and continued into the early 1970s at a lower level. According to the Commission, these findings meet the criteria of ‘gross violations of human rights’, which include crimes against humanity, as defined by the Indonesian Law No. 26/2000 on Human Rights Courts. Komnas HAM called on the Attorney General to launch an official investigation based on its findings and to establish an ad hoc Human Rights Court to bring the perpetrators to justice, as provided by the Law on Human Rights Courts. Komnas HAM also called on the authorities to establish a truth and reconciliation commission and to make a formal apology to the victims and their families. However, there is no sign that the Attorney General will launch any investigation.
- The Wasior and Wamena cases in Papua: In September 2004, Komnas HAM submitted pro-justicia inquiry reports to the Attorney General's office indicating that it had found initial evidence that suggested that security forces had committed crimes against humanity, including acts of torture in two separate incidents in Papua, in Wasior in June 2001 and Wamena in 2003. The files in both cases were reportedly returned by the Attorney General's Office to Komnas HAM in late December 2004 because they were deemed to be incomplete. Amnesty International has been told that the files have since been resubmitted by Komnas HAM to the Attorney General. To date there have been no new developments in the case.
Offences involving human rights violations and crimes under international law are also currently not defined in the Criminal Code (Kitab Undang-Undang Hukum Pidana, KUHP) making it very difficult for victims to seek justice before ordinary criminal courts in Indonesia.
Despite committing to accede to the Rome Statute of the International Criminal Court in Indonesia’s last two National Human Rights Action Plans (Rencana Aksi Nasional Hak Asasi Manusia) in 2004 and 2011, Indonesia has yet to do so. Recent reports indicate that the Ministry of Law and Human Rights has prepared a ratification law but has yet to submit it to parliament. The Minister of Defence is reported to oppose accession. Indonesia took the positive step of signing the International Convention for the Protection of All Persons from Enforced Disappearance on 27 September 2010 but has yet to complete the ratification process.
Amnesty International considers that the Indonesian authorities should:
- Amend the Law on Human Rights Courts (Law No. 26/2000) to:
- Expand its jurisdiction over other offences involving human rights violations and crimes under international law, in particular war crimes, torture, extrajudicial executions and enforced disappearance;
- Ensure that Komnas HAM can conduct pro-justicia inquiries effectively, including that it has subpoena powers to call witnesses, with due guarantees of their safety, and that it can submit all inquiries regarding crimes under international law to an independent prosecutor for investigation, without any possibility of political interference in the process by the Attorney General or other political officials; and
- Ensure that Komnas HAM and victims are kept informed of the status of investigations and that they can seek legal review of any decision not to investigate or prosecute offences involving human rights violations or crimes under international law;
- Revise the Criminal Code and the Criminal Procedure Code in compliance with Indonesia’s obligations under the Covenant and other relevant international human rights law and standards, and as a priority define all offences involving human rights violations and crimes under international law and principles of criminal responsibility in accordance with international law and standards;
- Ratify the International Convention for the Protection of All Persons from Enforced Disappearance at the earliest opportunity, incorporate its provisions in to domestic law and implement it in policy and practice; and
- Accede to the Rome Statute of the International Criminal Court and the Agreement on Privileges and Immunities of the International Criminal Court, incorporate their provisions in to domestic law and implement them in policy and practice.
Failure to establish a truth commission
In 2004, a law to establish a national Truth and Reconciliation Commission was adopted in Indonesia with powers to receive complaints; investigate “gross violations of human rights” which occurred in the past; and make recommendations for compensation and/or rehabilitation for victims. However, the legislation was seriously flawed as it empowered the Commission to recommend amnesties for perpetrators of crimes, undermining the possibility of truth and justice. It provided that cases the Commission dealt with would be barred from prosecution and it made it a requirement that victims would only receive compensation if the perpetrator had been granted amnesty.
In 2006, the Indonesian Constitutional Court ruled that the Law on a national Truth and Reconciliation Commission (Law No. 27/2004) was unconstitutional, as it gave powers to recommend amnesties for perpetrators of serious crimes, and struck it down. A new law has been drafted by the Ministry for Law and Human Rights and is scheduled for discussion in parliament in 2011-2014. However, to date the bill has yet to be submitted to the House of People’s Representatives.
The absence of a law regulating a national truth commission has also affected the establishment of local truth commissions in Aceh and Papua. Both the 2005 Helsinki peace agreement and the subsequent 2006 Law on Governing Aceh (Law No. 11/2006, LoGA) contain provisions for the establishment of a Commission for Truth and Reconciliation in Aceh. The MOU provides that a “Commission for Truth and Reconciliation will be established for Aceh by the Indonesian Commission of Truth and Reconciliation with the task of formulating and determining reconciliation measures” (Article 2.3). Further, the LoGA provides that the Truth and Reconciliation Commission in Aceh “shall constitute an inseparable part of the [national] Truth and Reconciliation Commission” (Article 229), and that it shall become effective no later than one year following the enactment of the LoGA (Article 260). However, the annulment of the 2004 Truth and Reconciliation Law and the subsequent delays in setting up the national Truth and Reconciliation Commission, has been used to delay the setting up of a local Truth and Reconciliation Commission in Aceh.
In April 2013, the Aceh House of People’s Representatives decided to accelerate the debate and passage of a draft bylaw (qanun) on a truth commission. However, On 19 April 2013, a Presidential spokesperson was quoted by the media as saying that an Aceh truth and reconciliation commission established by the local government in Aceh would have no legal basis as the 2004 law on a National Truth and Reconciliation Commission had been struck down by the Constitutional Court. He added that an Aceh truth commission would open old wounds and would affect the peace.
Article 45 of the Law on Special Autonomy for Papua Province (Law No. 21/2001) also stipulates the establishment of a truth and reconciliation commission in Papua. However the failure to establish a national truth commission has also stalled the establishment of such a body 12 years on.
Amnesty International considers that the Indonesian authorities should:
- Establish without further delay an independent and impartial truth commission, complementing rather than replacing criminal proceedings and without the power to issue amnesties, in order to establish the facts about past human rights abuses including preserving evidence and identifying perpetrators; recommend reparation measures to address the suffering of victims; and recommend institutional reforms to ensure that such abuses will not be repeated; and
- Establish effective mechanisms, including possibly as part of the truth commission, to investigate and record the details of all missing and disappeared persons and search for, locate and release disappeared persons or, in the event of death, to respect and return their remains to their families and communities.
Under the Covenant, the Indonesian government has an obligation to provide an effective remedy to those whose rights and freedoms have been violated, including reparations. However, laws and regulations in Indonesia related to reparation for victims of human rights abuses remain inadequate and inconsistent with the Covenant, and precludes victims from accessing remedies before national courts. There are no provisions under the Criminal Code which would allow victims and their relatives to obtain reparation for some of the crimes under international law. There have also been no efforts to establish a comprehensive and effective reparation program for victims of human rights abuses. Law No. 26/2000 on Human Rights Courts provides that “[e]very victim of a gross human rights violation or abuse, and/or his/her beneficiaries, shall receive compensation, restitution, and rehabilitation” (Article 35.1) and that a human rights court may grant such measures in their ruling. However, most victims of human rights violations or abuses in Indonesia are unable to access these courts because their jurisdiction is limited, as noted, to crimes against humanity and genocide. Government Regulation No. 3/2002 on the Compensation, Restitution, and Rehabilitation of Victims of Gross Human Rights Violations which implements Article 35.1 and 35.2 of the Law on Human Rights Courts states that victims must wait for the verdict to be upheld on all available appeals, before they are eligible for reparation measures. However, past experiences of human rights courts’ rulings in Indonesia have been disappointing for victims and their families since, as noted, all the trials before the human rights courts in Indonesia have resulted either in acquittals or convictions being overturned on appeal.
The 2006 Law on Witness and Victim Protection provides that victims of ‘gross human rights violations’ are entitled to medical services, psycho-social rehabilitation, to request compensation or restitution, and to protection and assistance from the Witness and Victim Protection Agency. Although some of these measures could be provided before a final decision on guilt or innocence is made, they remain difficult to access in practice. Further, according to Regulation No. 44/2008 on the Provision of Compensation, Restitution, and Assistance to Witnesses and Victims, victim of ‘gross human rights violations’ can only apply for compensation when there is an ongoing Komnas HAM pro-justicia inquiry or before the Public Prosecutor files charges. In order to qualify the victim would require a referral letter from Komnas HAM showing he/she has suffered ‘gross human rights violations’.
Amnesty International considers that the Indonesian authorities should:
- Establish a programme to provide full and effective reparation (including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition) to all victims of past human rights abuses in Indonesia. The programme should be devised in consultation with victims, both women and girls and men and boys, to ensure that the reparation programme is effective and reflects the different needs and experiences of victims/survivors, including women and men based on their gender or any other status. It should also take in to account the nature of the violations and abuses and previous access to measures of reparation, in order to properly address the harm suffered. To avoid further delays in addressing the suffering of victims, the programme should be established immediately to start providing reparation to victims as soon as possible. If recommendations are made by a truth commission in relation to reparation, these should be considered and addressed at that time as part of a review of the programme.
 No one is currently imprisoned as a result of trials before the permanent human rights court in Makassar (Abepura case, 2000), or as a result of trials before the ad-hoc human rights courts (Tanjung Priok, 1984 and East Timor, 1999). See International Center for Transitional Justice (ICTJ) and KontraS (the Commission for the Disappeared and Victims of Violence), Derailed: Transitional Justice in Indonesia since the Fall of Soeharto, April 2011, (ICTJ and KontraS, Derailed), p41, available at: http://ictj.org/sites/default/files/ICTJ-Kontras-Indonesia-Derailed-Report-2011-English_0.pdf, accessed 10 June 2013.
 The law uses the Indonesian word “pelanggaran” which can mean either “violation” or “abuse” when translated in to English. Amnesty International translates this word as “abuse” and thus considers it to refer to both human rights violations by the state and human rights abuses by non-state actors.
 See Amnesty International, Time to Face the Past: Justice for Past Abuses in Indonesia’s Aceh Province (Index: ASA 21/001/2013) p30; and Amnesty International’s Comments on the Law on Human Rights Courts (Law No. 26/2000) (Index: ASA 21/005/2001), p2.
 Amnesty International, Time to face the past, Supra No3, p31
 Amnesty International, Indonesia: Attorney General must act on Komnas HAM report on 1965-66 violations (Index: ASA 21/028/2012), 27 July 2012. The victims and their families are still prohibited from becoming civil servants, military or police officers, teachers or judges. See Mudzayin, Dibebaskan tanpa Kebebasan; Beragam peraturan diskriminatif yang melilit tahanan politik tragedy 1965-1966 [Freed without Freedom; Various discriminatory laws surrounding political prisoners of the 1965-1966 tragedy], 10 March 2008, KontraS, available at: http://kontras.org/buku/Buku%20Peraturan%20Diskriminatif.pdf .
 Amnesty International, Indonesia: President must ensure truth and justice for 1997-98 enforced disappearances (Index: ASA 21/006/2013), 22 March 2013.
 Amnesty International, Indonesia: Briefing to the UN Committee against Torture (Index: ASA 21/003/2008), section 7.2, p37; and ICTJ and KontraS, Derailed, p40, Supra No93 available at: http://ictj.org/sites/default/files/ICTJ-Kontras-Indonesia-Derailed-Report-2011-English_0.pdf, accessed 10 June 2013.
 Amnesty International, Time to face the past, Supra No3, p26
 Atjehpost.com, “DPR Aceh bahas rancangan qanun Komisi Kebenaran dan Rekonsiliasi” [Aceh Parliament discuss draft bylaw on Truth and Reconciliation], 29 May 2013, available at: http://dpraceh.atjehpost.com/read/2013/05/29/53624/31/31/DPR-Aceh-kembali-bahas-rancangan-qanun-Komisi-Kebenaran-dan-Rekonsiliasi#.UaihqcjpdUI , accessed 13 June 2013; Medan Bisnis, “DPRA Konsultasi ke Kemenkum HAM Bahas Qanun KKR” [Aceh Parliament consults with Ministry of Law and Human Rights to discuss TRC bylaw], available at: http://www.medanbisnisdaily.com/news/read/2013/04/24/25553/dpra_konsultasi_ke_kemenkum_ham_bahas_qanun_kkr/#.Ubn4F8jpdUI accessed 13 June 2013;
and VOA Indonesia, “Komisi Kebenaran danRekonsiliasi Aceh Belum Bisa Dibentuk” [Truth and Reconciliation Commission cannot be formed yet],available at http://www.voaindonesia.com/content/komisi-kebenaran-dan-rekonsiliasi-aceh-belum-bisadibentuk/1644703.html , accessed 21 June 2013.
 The Witness and Victim Protection Agency is only based in Jakarta and has yet to set up any regional offices limiting access to witnesses and victims in other parts of the country. See Amnesty International, Time to face the past, Supra No3, pp 37-38.
 Amnesty International, Time to face the past, Supra No3, p41.
Truth and Reconciliation Commission procedures
Several intiatives have been taken to establish special commissions to try and solve human rights violations of the past. This page give information about the
- Truth and Reconciliation Commission Indonesia (KKR)
- Commission for Truth and Friendship of Timor Leste and Indonesia (CTF)
- Local Truth and reconciliation Commissions (Papua and Aceh)
Below is the description and assessment of these commissions as made by the ICTJ - KontraS report (2011).
In 2000 the MPR (Majelis Permusyawaratan Rakyat, both houses of Parliament) called for the establishment of a national Truth and Reconciliation Commission. Following up on the MPR resolution, Law 27 of 2004 required the government to establish a TRC within six months. A March 2005 presidential decree then created a panel to select commissioners. The panel produced a short list of 42 names within five months and forwarded the list to the president for approval that would have officially established the TRC.
President Yudhoyono, however, made no decision for more than a year, keeping the status of the TRC in limbo and leaving the Constitutional Court to decide the commission’s fate in a very different manner.
In April 2006, human rights NGOs and representatives of victims successfully requested a judicial review of the 2004 TRC law, claiming that three provisions violated victims’ constitutional right to remedy:
- The TRC’s power to recommend amnesties for perpetrators of serious crimes;
- Cases that the TRC addressed could not be prosecuted in court, and;
- The requirement that victims would only receive compensation if the perpetrator of the crimes against them was given amnesty.
In December 2006, the Constitutional Court found that the prerequisite of granting amnesties to perpetrators in order to provide reparations to victims contradicted rights enshrined in the Constitution. In a surprise move, rather than merely annulling these specific provisions, the court annulled the entire law. The court provided two options for the future: passage of a new law or reconciliation efforts through political policies on rehabilitation and amnesty. Factions implicated in past
violations welcomed the decision, and the credibility of the Indonesian judiciary, notoriously prone to political interference and corruption, took another blow.
Civil society continues to support the establishment of a national TRC. The Ministry of Law and Human Rights has completed a new draft TRC law that is listed among more than 250 to be debated in Parliament between 2010 to 2014.
In 2015 an effort to establish a Joint Committee, consisting of representatives of the police, the military, the prosecution was not brought to any result.
Commission of Truth and Friendship Timor Leste - Indonesia (CTF)
(ICTJ-KontraS 2011) Under pressure from a UN Commission of Experts’ review of justice mechanisms to address the crimes committed in East Timor in 1999, the Indonesian and Timorese governments in August 2005 established a binational truth commission called the Commission of Truth and Friendship (CTF). The CTF, composed of ten commissioners, five from each country, was supported by a secretariat mostly comprising appointees from the Indonesian foreign ministry. It was the first example of a TRC involving more than one country.
The CTF’s mandate did not include original research. It was to review the findings of four previous mechanisms:
- the Special Panels for Serious Crimes in Dili,
- the widely condemned ad hoc human rights court trials in Jakarta,
- the Komnas HAM inquiry, and
- the report of Timor-Leste’s Truth and Reconciliation Commission (CAVR).
On the basis of this review, the CTF was to provide findings about “the conclusive truth” of what had taken place and make recommendations to ensure nonrepetition. The commission also had the power to recommend amnesties for those who “cooperate fully in revealing the truth” and to recommend rehabilitation measures for those “wrongly accused.” This curious mandate led human rights groups to condemn the process as intended to sustain the Indonesian government’s official denial of responsibility.
Although the CTF did not have a specific mandate to conduct public hearings, it chose to do so. The format of these hearings, however, gave alleged perpetrators the opportunity to use national television and press coverage to present their testimonies without being seriously cross-examined or confronted with thousands of pages of contradictory evidence in the commission’s possession. Past TRCs have encouraged victims and witnesses to speak freely in public without serious challenge. However, it was unusual and highly inappropriate to let perpetrators abuse the model in this way. Many of those who condemned the commission as a whitewash attempt were surprised by its final report, which included the following findings:
- Crimes against humanity, including murder, torture, rape, and forced transfer or deportation, were committed throughout East Timor in 1999.
- These crimes were not spontaneous or random, and were not the result of retaliatory actions
- The main perpetrators were pro-autonomy militia groups that targeted supporters of independence and acted with the involvement and support of the Indonesian military, police, and civilian authoritiesIndonesian support for pro-autonomy militia groups included money, food, and weapons.
- All of these were provided in a systematic manner and with the knowledge that the recipients were committing gross human rights violations
The presidents of both Timor-Leste and Indonesia accepted the report, marking a major shift from a total denial of responsibility on Indonesia’s part. While the findings were not news to the Timorese, most Indonesians had only heard or read unfounded explanations from national media outlets that blamed the UN and pro-independence groups. The CTF’s findings clearly showed these versions of events to be biased. Notably, the CTF declined to recommend amnesties, concluding that “amnesty would not be in accordance with its goals of restoring human dignity, creating the foundation for reconciliation between the two countries, and ensuring the non-recurrence of violence within a framework guaranteed by the rule of law.”
Local Truth and Reconciliation initiatives
[this page is yet to be completed]
In 2005 during the Peace Process in Aceh an Aceh TRC has been agreed. However, formal legislation was completed and enacted only on 2017. An analysis will follow soon.