Ad-hoc trial should ensure protection of rights

Munir, Director Indonesian Human Rights Watch (IMPARSIAL), Jakarta

The first round of the ad hoc Human Rights Tribunal on the East Timor case ended in anticlimax as the suspects of crimes against humanity were mostly acquitted from all charges. The verdict cast by the first human rights court conducted in this republic's history carries a danger that we may not have taken seriously.

The verdicts provide justification for the notion that state violence against civilians is excusable, if not entirely legal. A number of other cases are pending: Will the verdict be largely the same: Acquittal?

On the day when the verdict was passed on the military and police officers an expression of really shallow nationalism was confirmed: Adulation of the state power and the state's territorial integrity at the expense of human security. The verdict has rendered irrelevant efforts to prevent and punish gross violations of human rights, which have been perpetrated in state operations under various pretexts.

This court verdict has led to the serious danger of endorsing actions by members of the state apparatus members in the name of "defenders of Indonesia's national integrity and unity, stability, and the authority of the state apparatus". Such an endorsement provides justification or a blank-check mandate for the members of the state apparatus to take any action, including that which ignores a person's safety and his right to life.

More than before, activists defending human rights in Indonesia face accusations of being unpatriotic or anti- nationalist, placing themselves in a difficult relationship laden with misunderstanding with other people.

What was perhaps most prominent in the trials was the judicial institutionalization of military impunity. This has to do with three related factors. First, the mandate of this judiciary was restricted only to a number of cases placed in such a way that they seem to be unrelated.

Second, the charges were not solidly built: The accusation was that the only "crime" perpetrated was the "neglect" of the Indonesian Military (TNI) and the National Police in preventing violent clashes in a "civil war". Third, the verdict acquitting the defendants of all charges closes the possibility for them to be charged with a similar crime, namely crimes against humanity, even if in the future a clearer picture of the scorched-earth operation in post-referendum East Timor can be found.

Such a result leaves us in anxiety about the future of our judiciary, humanity and our integrity toward truth and justice. Things will be more complicated when we consider the judiciary as a mere political instrument.

International pressure for accountability for the serious crimes has led to a pattern of resistance, resulting in a court of justice alive with all its ironies. These ironies are extraordinary: A special court initially set up to honor citizens' human rights against the state's power has instead become a staunch defender of the state's absolute power. Court rooms have become increasingly void of efforts to place humanity as the backbone of the spirit to reveal facts.

It would indeed be an exaggeration to assume that short term needs will lead to a permanent state of antipathy of future human rights protection especially if gross crimes against humanity are treated as ordinary crimes.

Crimes against humanity are extraordinary crimes because they require the role of the state and its apparatus as the perpetrators, as implied by their three elements: The crimes are widespread, and/or systematic and are directed against the civilian population.

As crimes against humanity are different from ordinary crimes, if a defendant is acquitted by an ordinary criminal court, he can still be brought before a human rights court, thereby annulling the principle of nebis en idem, a prohibition against charging someone in a case for which a trial has been held on the same charges.

Furthermore, the judges in the previous cases on East Timor both opposed and abandoned the necessity to prove "state criminal responsibility" -- the obligation of the state to punish acts categorized as crimes committed under the norms of international laws. They also abandoned the need to push for individual accountability -- the obligation of a state apparatus to assume individual responsibility for its deeds which are categorized as crimes under international law.

This reality contradicts the general perception that this special court has made great progress by adopting in its considerations reference to international human rights law.

The judges also set aside the principle of crimes by omission, only seeing the crimes as a result of "neglect" by defendants. Crimes by omission are those intentionally committed under instruction, or a policy to allow the conduct of various crimes. The policy is at least a deliberate act of not preventing violence threatening human safety, either because of psychological factors in the relationship involving fellow pro- integration defenders or because one party became enraged, triggered by dishonesty brought about by an alleged international conspiracy against Indonesia.

Doesn't such a judicial practice insult the degree of this court's seriousness in handling serious crimes? If this ad hoc Human Rights Tribunal is not used to the maximum, isn't this a negation of all the efforts so far in legal reform?

Many more questions may be asked and all these are important in building an effective and accountable domestic remedy for gross violation of human rights, particularly in the struggle against military impunity.

The above factors regarding the judiciary have become a crucial point for some circles in the Indonesian community to push for an international mechanism regarding these crimes. Quite a number of similar serious crimes are due to be tried before the Human Rights Tribunal, which leads to a greater need to control the behavior of law enforcers.

This is clearly not only the responsibility of the Indonesian people but also of the international community. Crimes against humanity cannot be left unsettled beneath the shadow of narrow political interests.