Ad-hoc trial should ensure protection of rights

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.