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).