Indonesia's credibility at stake on East Timor case

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of Representatives -- it may be no longer valid.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.