Failure to deal with past crimes can bring about revenge

Failure to deal with past crimes can bring about revenge

The question of dealing with past crimes, allegedly committed
either by the government or the military, features high on the
agenda of the new Indonesian government.

The Jakarta Post talks to Aryeh Neier, president of New York-
based Open Society Institute. The institute, funded by American
financier and philanthropist George Soros, supports efforts to
develop democracies in countries where the masses have previously
been repressed.

Neier, a former director of Human Rights Watch with 40 years'
experience in the field, is the author of the much acclaimed book
War Crimes: Brutality, Genocide, Terror and the Struggle for
Justice. The book deals with crimes by governments and military
forces in many countries and the way international law deals with
these crimes.

JAKARTA (JP): Thirty years of repressive and often brutal
quasi military rule by the Soeharto regime brought untold misery
to Indonesian people. Most of these actions have yet to be
unveiled.

The women of Aceh and Irian Jaya, or even of Tanjung Priok in
North Jakarta, have to live with the fact that the former
torturers or murderers of their husbands or sons are able to move
about freely, and perhaps even be promoted to top government
positions.

Simmering in the background, a dark cloud looms, perpetually
haunting both conscientious people and children or grandchildren
of victims of the notorious 1965 killings -- blamed on the
communists in the wake of the cold war -- that could run to over
a million.

But the women of Aceh, victims of decades of monstrous cruelty
that continues until today, at least should not feel that they
suffer alone. Neier has found that neither the number of people
killed nor the time lapse between the unresolved 1965 killings
and today's atrocities are uniquely Indonesian.

There are numerous other examples of human rights violations
across the world that are linked to regimes, military or
otherwise, past and present.

Geoffrey Best of St. Antony's College, Oxford, wrote in the
Los Angeles Times soon after War Crimes was published in 1998
that "The struggle for justice is carried on at all levels of
judicial activity on every continent and, for the most part,
within national legal frameworks."

Despite persistent horror of the outrageous proportion the
world saw since 1945, Neier exudes a sense of optimism in his
book when he notes that the United Nations Security Council
established international tribunals for Rwanda and former
Yugoslavia in 1984 and 1993 respectively.

Neier envisions a permanent international criminal court in
his book and in fact steps to materialize this vision have gained
ground, but he warns his readers not to be overly optimistic for
such a court has its limitations.

Gary J. Bass, writing in a New York Times book review, quoted
Neier's view of the challenges facing developing countries
dealing with past crimes.

"The problem with the new democracies that decides to let off
dictators and torturers," Neier wrote, "is that electoral
majorities may not have the interests of the victims at heart."

Bass added that Neier is more a classical liberal than a
democrat since he is more concerned with individual rights than
with majority rule.

Following are excerpts from the interview:

Question: As a prominent legal expert, what would you suggest
for the new Indonesian government under President Abdurrahman
Wahid to deal with the past atrocities?

Answer: I think it is necessary for every government that
emerges from repression to try to hold accountable those who
committed the crimes. If one doesn't do it then people who have
been victims feel a continuing grievance against the government
and it can produce unrest and further conflict, so it needs to
deal with the past in a fair way.

There are two things one has to try to achieve in dealing with
the past. First, one needs to know what happened, one needs to
understand fully what the crimes were and that is referred to as
the "truth face" and for that reason in the last 20 years there
have been truth commissions in many countries.

The other is the "justice face" that is seeing to it that the
people that have the highest level of responsibility are held
personally accountable for the crimes of the past.

The truth face is especially important in circumstances where
there was deception about the crimes where the government
pretended the crimes did not take place, or denied that they took
place.

In a number of Latin American countries there was government
denial of the crimes, and truth commissions were created in those
countries that have to deal with the crimes, and also in South
Africa.

How do these two "faces" relate to each other?

The justice face is not necessarily contradictory to the truth
face, but in some countries like Argentina or South Africa there
were truth commissions. But there was also prosecutions.

Prosecutions of only a small number of people, but there were
some prosecutions. South Africa was particularly successful
because in South Africa the law provided that the people who had
committed the crimes could get amnesty, but they could only get
amnesty individually, not collectively.

In what way could they get amnesty?

The way they got amnesty was to acknowledge the crimes they
committed and to disclose fully the crimes and if they did not
disclose them fully then they could still be prosecuted.

Some people were prosecuted and one of the good elements of
that is that there was not a capacity in South Africa to
prosecute everyone who committed crimes (there are too many
crimes).

The judicial system was not capable of handling so many cases.
Therefore the courts deal only with those who refused to
acknowledge their crimes. The courts dealt only with those who
refused to acknowledge their crimes.

At the same time it was very important to the victims of the
crimes, the families, the survivors. But the people who committed
the crimes actually came forward and testified and acknowledged
their crimes, disclosed their crimes and had to apologize for the
crimes they committed in order to get amnesty. The apologies were
very important to the victims.

Indonesia still has one huge unresolved case, the 1965
killings, on top of a 30-year atrocity committed by a repressive
government. Is this a unique case?

I don't think it is unique. I think there have been great
crimes in many countries and there have been also cases in which
one goes even further than 1965 to look at the crimes.

During this past year, there were a number of prosecutions in
different countries for crimes that were committed during World
War II, that is in England a man from Belfast was prosecuted last
year in 1999 for Nazi war crimes. In France a man was indicted
for the crimes committed for the Vichy government in World War
II. In Italy a Nazi war criminal was indicted for crimes
committed during World War II.

In the case of the South African truth commission, the main
jurisdiction covered from 1960 to 1993 because in South Africa
the jurisdiction covered from the time of a 1960 massacre until
1993 when an agreement for a new constitution took place.

Which party was held accountable in those various cases?

In various countries the people on both sides of struggles
have been held accountable for the crimes. It is not only on the
government side, it is also the people who fought the government
who have been held accountable.

For instance, the South African truth commission dealt with
the case of crimes committed by the African National Congress as
well as the apartheid government for the crimes committed by
Winny Mandela as well as crimes committed by the South African
Free Service.

And of course there have been crimes as large in scale as
those that took place in Indonesia in 1965; that is somewhere
between half a million and a million killed. Obviously in World
War II many more than that were killed. In Rwanda during 1984,
800,000 people were killed, in Cambodia in the period 1975 to
1978 there were more than a million people killed.

So even the size of the number of killings is not unique. In
Guatemala there was a truth commission which recently issued a
report covering a 32-year period from 1966 until 1998 that dealt
with 200,000 people being killed.

Which one we should deal with first, the 1965 killings or the
subsequent human rights violations?

Whichever you want.

So we can start either with the 1965 killings or crimes during
the 30 years of repression...

No problem.

Why would it not be a problem, wouldn't 1965 be a more logical
point to begin with?

I think a decision has to be made within the country as to
what is important in the country. If it is important in the
country to know the truth about what happened in 1965, and if it
is important in the country for the people who are still alive
today who were victims to what happen in 1965 or other family
members of those who were killed in 1965, then one has to deal
with 1965.

On the other hand, sometimes things are such a long time ago,
it is no longer that important to a country to deal with it. So
every country has to make its own decision as to what is
important.

To be able to face future challenges, isn't it necessary for a
nation to have a clear conscience, in this case to know in the
first place who was responsible for what happened it 1965?

One should know what crimes one committed and who was
responsible for committing them. But it is sometimes very
difficult to hold a trial for crimes that were committed long ago
because it is difficult to gather evidence or obtain testimony.

So it may be better in certain circumstances to deal with
crimes that were committed long ago by an investigation of those
crimes and full disclosure about what happened.

The numbers of those who really know about what happened in
1965 are dwindling...

Well, if that is the case, then it may not be possible to have
any trials. It may only be possible to do an investigation. I
would think there still should be enough information around about
1965, so one could investigate what took place.

And it is an important part of the history of the country.
There is value in trying to establish a commonly accepted
history, a history that every body feels or almost everybody
feels is reliable.

We don't have it now regarding the 1965 incident.

That is my impression, that you don't have that now. But there
is still great dispute over what took place in 1965.

So you think it is necessary to have one reliable history
version?

I think it is important to have a reliable history. Part of
the reason is that in some countries there have been conflicts
many years later, because people feel that injustices were done a
long time ago and they still feel like victims even though they
weren't the victims but their parents or grandparents were the
victims.

If you think about Yugoslavia during World War II there was a
fascist regime in Croatia, for the regime at that time was allied
with the Nazis.

When Croatia became independent from Yugoslavia in 1991, the
Serbs who lived in Croatia rebelled against being part of Croatia
because they said this would be the coming of a regime that is
linked to the regime's crimes in World War II and that what
started the wars in Yugoslavia.

Many of the Serbs who committed crimes in the war in Croatia
in 1991 thought they were revenging the crimes during World War
II.

When the war started in Bosnia in 1992 -- and the war in
Bosnia lasted from 1992 to 1995 and more than 200,000 were killed
during that war -- again the Serb minority in Bosnia claimed that
the Bosnians were also responsible for the regime's crimes during
World War II, and they even blamed the Bosnian Muslims for
Turkey's occupation of Serbia that last for 500 years, 1389 until
the 19th century.

So a reliable history could prevent further bloodshed?

Yes, the people imagine that they are revenging crimes that
were committed long ago and it is important to have a commonly
accepted history because the sense of victimization, for many
people, is a justification for crimes they commit.

One needs to have a sense of closure in the sense that the
issue has been settled and people do not continue to feel
victimized.

This has happened in country after country; that things took
place a long time ago and many years later the people who were
victims or the children of victims or who imagined that they were
victims want some kind of justice. Justice becomes revenge.

You said one of the reasons South Africa was successful
because it offers amnesty.

But only individually, and that's very important because in
some other countries amnesty was given collectively and that
meant there was no pressure on the individuals to come forward
and acknowledge and disclose the crimes they committed.

Of course you are aware that Gus Dur has repeatedly said that
he would pardon former fallen leaders. Does pardon equal amnesty
in legal terms?

Pardon is different from amnesty. Amnesty means you don't try
them, you just forget them. Pardon means first you try them and
then after they are convicted you pardon them and say you don't
send them to prison or you don't punish them in any way.

Which one is more applicable for a country like Indonesia?

It depends on the circumstances, but if the question is to
provide proof and to provide acknowledgement then I think the
South African model is a good one. Individual amnesty in exchange
for acknowledgement and disclosure. If one doesn't come forward
and acknowledge and disclose and apologize then a trial, then
prosecution.

And the only pressure to make people come forward and
acknowledge and disclose is they understand if they fail to do
there will be a prosecution. Because there has to be pressure on
them, otherwise why should they come forward and acknowledge and
disclose.

In the case of Indonesia, is it necessary to have a commission
of truth?

I think it is a good idea to have it because so many things
happened over so long a period in so many different parts of the
country.

There are so many people who feel that they were victimized
and it is important for them to see that the government and the
country as a whole is facing up to the past and acknowledging the
suffering that they experienced.

Concerning cases like Aceh or East Timor where human rights
violations by the military are said to be rampant, what if a
military commander knew that a violation was committed by his
troops but he did not take any action? Is he accountable or not?

International law deals with that question in the Geneva
convention. The Geneva convention applies to both international
armed conflicts and internal armed conflicts.

Under the Geneva convention, a commander is responsible for
crimes that were committed by his troops under the following
circumstances. One, if the commander was actually in command,
that is he was the person who had control over the troops. Two,
if he knew about the crimes, and three if he did not take all
feasible measures to prevent and punish the crimes.

So if a commander shows that he was in command, that he knew
about the crimes and then he himself took measures against the
troops by ordering a trial and punished the troops responsible,
then he is not guilty of the crimes.

But if he didn't do anything about it then he is responsible
for those crimes.

Could you give one example?

There were a number of such cases that involved Japanese
military commanders who were responsible for troops during World
War II. One famous case is Gen. Yamashita.

Yamashita was the Japanese commanding general at the time of
the massacre in Manila and in the tribunal it was never shown
that Yamashita actually gave any order to commit the crimes.

But it was shown that the troops under his command murdered a
lot of people, raped a lot of women. Yamashita was convicted
after World War II because, as the commanding general, he should
have known about the crimes committed by his troops. He did not
take measures to stop these troops from committing crimes or to
punish those troops from committing their crimes and therefore he
was responsible for those crimes.

Gen. Yamashita was executed for the crime committed by his
troops.

This provision in the protocol of one of the conventions says
that a commander is responsible if he had command, if he had
knowledge and if he did not take all feasible measures to prevent
and punish those crimes. This is called command responsibility.

But this provision applies to international case like East
Timor, not domestic cases like Aceh?

East Timor would be like the crimes committed in Bosnia. In
the first major Bosnian case the defendant claimed that the
crimes he was charged with were committed in an internal armed
conflict. He denied that what happened in Bosnia was
international and the tribunal in Yugoslavia said whether the
crimes took place in an internal armed conflict or an
international armed conflict these were war crimes, and therefore
whichever way you decide the Bosnian matter he is guilty of those
crimes.

And so if you take the East Timor situation, whether it is
internal or international, those would be war crimes. And
Indonesia signed and ratified the Geneva convention.

The Geneva convention applies to Indonesia both because
Indonesia agreed to them and because they are customary
international law. So they apply to this.

Also another provision, and that is the fourth Geneva
convention, applies to occupation. For instance, Israel commits a
crime in the Palestinian occupied territories. Even though there
is no war but it is a situation of occupation, those are still
war crimes under international law, and you could also be in East
Timor from the stand point of occupation, that would be war
crimes under the fourth Geneva convention.

Of course it does not apply to Aceh?

Aceh is not an occupation. Aceh is a domestic case. So Aceh is
an internal armed conflict. The rules are a little different in
international armed conflict, but still, crimes committed in an
internal armed conflict are war crimes.

What is defined as an internal armed conflict?

When a guerrilla group is fighting against the government, it
is an internal armed conflict. When a guerrilla group has control
over a population or territory and when it is able to engage in
sustained or concerted military activity, it is an internal armed
conflict.

If you have a riot and the riot lasts for a few days like what
happened in Ambon, for example, that is not an internal armed
conflict because there isn't control of population and territory,
and there isn't a capacity by troops to engage in sustained armed
conflict. That situation would not be covered by the Geneva
convention.

But in the Geneva convention common article 3 -- the same
provision appears in all four of the Geneva conventions -- it
does apply to Aceh because Aceh is a sustained armed conflict and
there was some control of the population and the territory.

Meaning the Aceh case could be tried internationally?

There is no international tribunal for Aceh at this time, but
the Geneva conventions do apply and so these are considered war
crimes under international law. There is no international
tribunal right now.

Applies to international law means?

When a government signs treaties, when it agrees to something,
that becomes an international law, or when the Security Council
of the United Nations adopts something as international law, that
is international law.

Under international law there are certain things that are
called war crimes. However, there are only two international
tribunals that have been able to enforce judgment against war
crimes.

They are the international tribunal for the former Yugoslavia
and the international tribunal for Rwanda. There is no worldwide
international criminal court. There is a treaty for an
international criminal court that was adopted in Rome in July
1998, but that only becomes effective when 60 countries have
ratified it and that hasn't happened yet. So it will be another
two years or so until there is a prominent international court.

That court would only have jurisdiction over crimes that are
committed after the time that the treaty goes into effect, so it
would not have jurisdiction over past crimes.

However, under the Geneva conventions, when war crimes have
been committed every country that has ratified the Geneva
conventions, including Indonesia, incurs an obligation to
prosecute war crimes. So there is an international legal
obligation on Indonesia to deal with war crimes that were
committed in Aceh.

Just an obligation, there is no consequences?

There is no mechanism to force Indonesia to meet or not to
meet that obligation.

You mentioned about past atrocities cases in Italy and
France ...

Now there is one very important case taking place in Senegal
because the former dictator of Chad has taken refuge in Senegal
and a Senegalese court has indicted him and is prosecuting him
for the crime that was committed in Chad. That is equivalent to
what was happening to Pinochet in London.

France and Italy must have better judiciary systems than
Indonesia; would that be factor in processing past crimes?

That's the problem, that's why I think that a truth commission
is probably a good way for Indonesia to deal with it because of
the problem with the judiciary. It will still reserve the
possibility of prosecuting those who refuse to acknowledge and
disclose.

How to set up a truth commission?

There should be a law which specifies exactly the
responsibility of the commission, what time period it will cover,
what kinds of crimes it will look at.

I have seen the draft of the (Indonesian) law that is being
considered and I think there are a few difficulties in the draft
law that need to be corrected.

One of the difficulties is it doesn't refer to the time period
that would be covered and some of these definitions of the crimes
are a little vague. I think that law can be amended quite easily
and become a good law.

Once the law is adopted what will follow?

There will have to be the actual appointment of the people who
will serve in the commission. I think it is important that all
Indonesians should be able to look at such a commission and have
confidence in the people who will serve on it so there needs to
be some criteria for the kind of people who would serve and an
appointment process.

Ultimately the President will have to appoint the members, but
it is very important that those appointed should be people in
whom everybody has great confidence.

And then there will have to be the budget of the commission
and staff and the time period in which it does its work, and
experience elsewhere indicates it requires the hiring of a lot
investigative staff in order to do the work.

Could you give us some framework on how long is suitable for
Indonesia in terms of time frame?

One commission has a very short time period. The El Salvador
truth commission, which was supervised by UN, had only nine
months. But El Salvador is a country of five million people.
Indonesia is a country of 210 million people, and there is a much
bigger job to do.

Also the El Salvador commission dealt with a 12-year period
(of atrocities). I think in Indonesia you want to look at things
over a much longer period.

You need more resources and more time than was available in El
Salvador. The South African commission had about two years and I
think two years might be right, but certainly not longer than
three years because one shouldn't postpone the result of this too
long.

The other thing which was very good with the South African
commission is they did their work through public hearings, they
held them all over the country.

The other commission did their work behind close doors. The
South African commission, by doing its work through public
hearings, involved the whole country in thinking about the
process and in discussing it every day and so it has had much
more impact on the country than any other commission. (hbk)