Justice for victims should include right to reparation

Justice for victims should include right to reparation

Papang Hidayat and Usman Hamid, Jakarta

Amid the fanfare and bustle of this year's general elections,
the trial of the gross human right violations in 1984's Tanjung
Priok incident has gone almost unnoticed by the public. While the
elections seem to promise a brighter future, the trial is a
reminder of a dark past that few will remember with fondness.

During the Priok trial, the victims made their demands for
compensation, which is one form of justice. In the realm of
human rights, the right of a victim to claim compensation is
known as the right to reparation. This right is granted in the
context of gross human rights violations or crimes in accordance
with international laws. This right is as important as justice
itself.

Until now, upholding human rights and justice has been
construed only as punishing the perpetrators without restoration
to the victims. In other words, restorative justice is still in
the air in this country. Unless effective restoration is
introduced in favor of victims, the enforcement of human rights
will be meaningless. Reparation must be construed as a non-
derogable right, a basic right that cannot be reduced in any
condition, including in a war emergency.

With reference to international law instruments -- either
human rights laws or humanitarian laws -- the right to reparation
is always integrated into the substance of these instruments.
This right is in both the Universal Declaration of Human Rights
and the Geneva Convention, the two milestones of international
law. Another example is the Anti-Torture Convention, which the
Indonesian government has ratified. This convention also requires
the fulfillment of reparation for torture victims.

As this right to reparation is generally found in most
international laws, the United Nations Commission on Human Rights
has drawn up basic principles and guidelines later known as
Basic Principles and Guidelines on the Right to a Remedy and
Reparation. These basic principles and guidelines are as follows:

Firstly, reparation is defined as an attempt to restore the
condition of a victim back to the condition they were in prior to
a violation. This reparation may concern the physical and mental
condition of the victims, their belongings or their social or
political status that may have been seized or damaged.

This definition of reparation can be seen as being ideal in
nature, as in reality it is often not possible to return to the
victims what has been taken from them. Various cases of gross
violations of human rights, for example, have resulted in
permanent physical disabilities, mental trauma or even loss of
lives, all of which are certainly impossible to restore.

In other cases, for example, a victim has been abandoned by
his family members because of political stigma. The loss of the
love from those held dear is also virtually impossible to replace
in whatever material form.

Secondly, reparation does not necessarily have to be that of
financial compensation, its most common form. It can take other
forms, such as a government apology or the construction of a
monument (memorabilia). Reparation can also be granted to victims
either individually or collectively.

There are four aspects of reparation used in international
law: Restitution, compensation, rehabilitation and a guarantee
the gross human rights violation will not recur.

These laws recognize that the victims are not just those
directly subjected to human rights violations but that their
family members or relatives also indirectly bear their plight.

Thirdly, according to the international laws, the state is the
subject that is responsible for human rights violations either by
act or by omission. This approach is known as the "state actor
principle". This means that a victim's right to reparations is
not only a state responsibility but it is also automatically a
state obligation. It is also binding to a new regime even if it
was a previous government that committed the human rights
violations.

Fourth, state responsibility in this context lies, on the
domestic level, in relation to its own people and also to the
international community. The implication of this responsibility
is that the state must integrate the principles of international
laws on the right to reparation into its national legal system.

In the event of a non-fulfillment of the right to reparation,
a victim, as an individual, can also bring up their case through
international mechanisms. At the UN level, an institution
resembling a financial agency for reparation has been set up
because many countries simply ignore victims' rights to
reparation.

In a case where the perpetrators are not state officials, for
example in a horizontal conflict, the state can coerce the
perpetrators to give reparation to victims. In practice, at the
international level, this principle of reparation has been
adopted in the international human rights trials in Rwanda and in
former Yugoslavia.

Indonesia's positive laws have also adopted some of the
principles referred to above. Take, for example, Law No. 26/2000
on the Human Rights Court. The law has a stipulation on
reparation, which is again set forth in greater detail in
Government Regulation No. 3/2002 on compensation, restitution and
rehabilitation for victims of gross violations of human rights.
Aside from the legal instruments, one of the judge's rulings in
the trial of Tanjung Priok human rights violations also provides
for compensation for the victims.

However, while it is a breakthrough, this ruling is yet to be
executed. Besides the fact that the allocation of state budget
funds for this compensation is still unclear, this ruling has
reduced the victims' rights to an insignificant amount of
material compensation. In addition, the ruling can only be
executed only when it has permanent legal force.

The difficulty in realizing compensation, which results from
the limitations inherent in the government regulation, is the
consequence of the hasty drafting of the regulation. This
regulation was ratified only a day before the first hearing in
the trial of the East Timor case. The government was afraid it
would have to pay a huge amount of compensation to the newly
independent East Timorese people if the court decided to award
the right to reparations to the victims of the East Timor case.

In line with principles prevailing in international law, the
awarding of reparation to the victims of the Priok incident
should not be left in uncertainty. In principle, the rights of
the victims of gross human rights violations should have been
restored prior to the commencement of the trial. This would be in
line with measures laid out in The Charter of Fundamental Rights
of the European Union.

In the Tanjung Priok case, the suffering the victims have
endured for the past 20 years must be taken into account. They
deserve to get back not only the material possessions they have
lost but also their dignity. However big the reparation they
receive, it will never replace what they have been robbed of.

The writers are members of the Commission for Victims of
Violence and Missing Persons (Kontras).