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)