Indonesia's credibility at stake on East Timor case

Failure to revise the draft laws on a human rights court and a truth and reconciliation commission could lead to a greater chance of rights violators being tried by an international tribunal, says Kusnanto Anggoro, a senior researcher at the Centre for Strategic and International Studies and a lecturer in the postgraduate studies program of the University of Indonesia, Jakarta.

JAKARTA (JP): These days will prove to be critical in Indonesia's ongoing campaign for justice.

The recent announcement by the Attorney General's Office of 19 "suspects" alleged to have been involved in rights violations in East Timor has deflated hopes.

Former military chief Gen. Wiranto was nowhere in the list, nor were other figures widely suspected of involvement in the post-ballot violence in East Timor, namely the head of the Jakarta-backed militia, Eurico Guterres, and former intelligence chief Zacky Anwar Makarim. These were the very names mentioned in the report of the National Commission on Human Rights in January.

As many would argue, this omission indicates that Indonesia has failed to demonstrate the necessary political will to move the prosecutions forward. This failure may cost Indonesia the credibility that it has managed to win thus far.

The international community will likely intensify its scrutiny of further steps taken by Indonesia in securing justice for the victims of violence in the territory.

However, there is still the possibility that the international community may be willing to give the government a second chance. Even so, achieving justice would still not be an easy feat as the legal basis to prosecute the possible suspects remains unclear.

The existing legal provisions are either of dubious standing or suffer from systematic defects. Government Regulation in Lieu of Legislation No. 1/1999 has already been rejected by the House of Representatives -- it may be no longer valid. The other provision, namely Law No. 39/1999 on Human Rights, operates on the principle of non-retroactivity which means that past offenses cannot not be tried.

Such legal complexities are not easy to resolve. Alternative bills now under deliberation do not give much reason for hope. The draft legislation for a human rights court, submitted to the legislature in May 2000, poorly defines crimes against human rights. It also lacks specific provisions, for example, on the defenses of "command responsibility" and "due obedience to superior's orders."

Another draft law, this time on a truth and reconciliation commission, recognizes the principle of retroactivity, thus opening up the opportunity to try crimes committed under the Old Order and New Order administrations. The drawback is that it provides amnesty for politically-motivated crimes in exchange for revealing the truth.

These legal shortcomings add to the political quandary which emerged recently with the amendment of the Constitution. Article 28I (1) of the Constitution enshrines the principle of non- retroactivity, and will likely prevent prosecutors from indicting suspects for past offenses such as crimes against humanity.

Furthermore, nowhere in the Constitution are there any provisions to be found for the prosecution of international crimes and/or offenses recognized as binding on all states under international law, even though such offenses may not have been on Indonesia's statute books at the time they were committed.

This amendment should not automatically grant de facto immunity to high-ranking officials for serious, internationally recognized offenses committed in the past.

However, there will surely be potentially lengthy political battles ahead. Protracted litigation is likely on whether there is a proper basis to proceed. Hardliners will continue to do all they can to obstruct a credible accountability process; and the struggle for justice can only become more compromised and/or prone to political horse-trading.

Given such limitations, immediate trials, if they ever actually transpire, will only be possible in respect of the ordinary criminal offenses already provided for by the Indonesian Criminal Code. Cases of murder, rape, and arson may still be prosecuted under the Criminal Code.

However, the Code is, in fact, insufficient to address large- scale and gross violations of human rights. More importantly, the existing courts and judges are dysfunctional. The Code offers little opportunity for indicting the top brass who gave the orders to shoot.

Obviously, we have no other choice but to, at a minimum, seriously revise the human rights court and commission of truth and reconciliation bills. Otherwise, the international community is likely to use its prerogative to establish an international tribunal.

The UN Transitional Administration in East Timor (UNTAET) has been documenting what transpired during the East Timor violence. A court established by UNTAET may become the most immediate and primary vehicle for justice for East Timor.

Hopefully, the legislature will not end up barking up the wrong tree and become preoccupied with issues which are not its responsibility.