Ad-hoc trial should ensure protection of rights<\/p>\n
Munir, Director Indonesian Human Rights Watch (IMPARSIAL), Jakarta<\/p>\n
The first round of the ad hoc Human Rights Tribunal on the
\nEast Timor case ended in anticlimax as the suspects of crimes
\nagainst humanity were mostly acquitted from all charges. The
\nverdict cast by the first human rights court conducted in this
\nrepublic's history carries a danger that we may not have taken
\nseriously.<\/p>\n
The verdicts provide justification for the notion that state
\nviolence against civilians is excusable, if not entirely legal. A
\nnumber of other cases are pending: Will the verdict be largely
\nthe same: Acquittal?<\/p>\n
On the day when the verdict was passed on the military and
\npolice officers an expression of really shallow nationalism was
\nconfirmed: Adulation of the state power and the state's
\nterritorial integrity at the expense of human security. The
\nverdict has rendered irrelevant efforts to prevent and punish
\ngross violations of human rights, which have been perpetrated in
\nstate operations under various pretexts.<\/p>\n
This court verdict has led to the serious danger of endorsing
\nactions by members of the state apparatus members in the name of
\n\"defenders of Indonesia's national integrity and unity,
\nstability, and the authority of the state apparatus\". Such an
\nendorsement provides justification or a blank-check mandate for
\nthe members of the state apparatus to take any action, including
\nthat which ignores a person's safety and his right to life.<\/p>\n
More than before, activists defending human rights in
\nIndonesia face accusations of being unpatriotic or anti-
\nnationalist, placing themselves in a difficult relationship laden
\nwith misunderstanding with other people.<\/p>\n
What was perhaps most prominent in the trials was the judicial
\ninstitutionalization of military impunity. This has to do with
\nthree related factors. First, the mandate of this judiciary was
\nrestricted only to a number of cases placed in such a way that
\nthey seem to be unrelated.<\/p>\n
Second, the charges were not solidly built: The accusation was
\nthat the only \"crime\" perpetrated was the \"neglect\" of the
\nIndonesian Military (TNI) and the National Police in preventing
\nviolent clashes in a \"civil war\". Third, the verdict acquitting
\nthe defendants of all charges closes the possibility for them to
\nbe charged with a similar crime, namely crimes against humanity,
\neven if in the future a clearer picture of the scorched-earth
\noperation in post-referendum East Timor can be found.<\/p>\n
Such a result leaves us in anxiety about the future of our
\njudiciary, humanity and our integrity toward truth and justice.
\nThings will be more complicated when we consider the judiciary as
\na mere political instrument.<\/p>\n
International pressure for accountability for the serious
\ncrimes has led to a pattern of resistance, resulting in a court
\nof justice alive with all its ironies. These ironies are
\nextraordinary: A special court initially set up to honor
\ncitizens' human rights against the state's power has instead
\nbecome a staunch defender of the state's absolute power. Court
\nrooms have become increasingly void of efforts to place humanity
\nas the backbone of the spirit to reveal facts.<\/p>\n
It would indeed be an exaggeration to assume that short term
\nneeds will lead to a permanent state of antipathy of future human
\nrights protection especially if gross crimes against humanity are
\ntreated as ordinary crimes.<\/p>\n
Crimes against humanity are extraordinary crimes because they
\nrequire the role of the state and its apparatus as the
\nperpetrators, as implied by their three elements: The crimes are
\nwidespread, and\/or systematic and are directed against the
\ncivilian population.<\/p>\n
As crimes against humanity are different from ordinary crimes,
\nif a defendant is acquitted by an ordinary criminal court, he can
\nstill be brought before a human rights court, thereby annulling
\nthe principle of nebis en idem, a prohibition against charging
\nsomeone in a case for which a trial has been held on the same
\ncharges.<\/p>\n
Furthermore, the judges in the previous cases on East Timor
\nboth opposed and abandoned the necessity to prove \"state criminal
\nresponsibility\" -- the obligation of the state to punish acts
\ncategorized as crimes committed under the norms of international
\nlaws. They also abandoned the need to push for individual
\naccountability -- the obligation of a state apparatus to assume
\nindividual responsibility for its deeds which are categorized as
\ncrimes under international law.<\/p>\n
This reality contradicts the general perception that this
\nspecial court has made great progress by adopting in its
\nconsiderations reference to international human rights law.<\/p>\n
The judges also set aside the principle of crimes by omission,
\nonly seeing the crimes as a result of \"neglect\" by defendants.
\nCrimes by omission are those intentionally committed under
\ninstruction, or a policy to allow the conduct of various crimes.
\nThe policy is at least a deliberate act of not preventing
\nviolence threatening human safety, either because of
\npsychological factors in the relationship involving fellow pro-
\nintegration defenders or because one party became enraged,
\ntriggered by dishonesty brought about by an alleged international
\nconspiracy against Indonesia.<\/p>\n
Doesn't such a judicial practice insult the degree of this
\ncourt's seriousness in handling serious crimes? If this ad hoc
\nHuman Rights Tribunal is not used to the maximum, isn't this a
\nnegation of all the efforts so far in legal reform?<\/p>\n
Many more questions may be asked and all these are important
\nin building an effective and accountable domestic remedy for
\ngross violation of human rights, particularly in the struggle
\nagainst military impunity.<\/p>\n
The above factors regarding the judiciary have become a
\ncrucial point for some circles in the Indonesian community to
\npush for an international mechanism regarding these crimes. Quite
\na number of similar serious crimes are due to be tried before the
\nHuman Rights Tribunal, which leads to a greater need to control
\nthe behavior of law enforcers.<\/p>\n
This is clearly not only the responsibility of the Indonesian
\npeople but also of the international community. Crimes against
\nhumanity cannot be left unsettled beneath the shadow of narrow
\npolitical interests.<\/p>",
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