Military impunity undermines democracy

Paul Barber, London

Indonesia is fast learning the lesson that while elections are an important part of the transition from dictatorship to democracy, the more difficult parts include establishing the rule of law, eradicating corruption and ensuring military accountability to civilian institutions.

According to these criteria the democratization process in Indonesia still has a long way to go.

Although military operations in Aceh and West Papua prevented free and fair elections in those areas, many observers declared the legislative and first round of the presidential elections a relative success. The two remaining presidential candidates seem unlikely to provide significant impetus to the cause of military reform however. President Megawati Soekarnoputri has shown that she is a virtual puppet of the military while Susilo Bambang Yudhoyono is a former general unlikely to change his military spots.

But it is the continuing impunity of armed forces personnel that in particular augurs ill for the transition to democracy.

The outcome of recent proceedings in Indonesia's ad hoc human rights court and its associated appeal court have been a massive blow to those who, over-optimistically, believed that Indonesia's legal institutions were sufficiently independent and mature to handle the prosecution of some of the gravest crimes known to humanity.

This is not only a criticism of the Indonesian system, but also an acknowledgement of the immense difficulties of transitional justice in a country which has emerged from decades of authoritarianism.

The appeal court's decision to quash the convictions of four Indonesian security officials found guilty of crimes against humanity in East Timor has confirmed the widespread view that the proceedings were a travesty of justice. Twelve other Indonesian security officials had already been found not guilty by the ad hoc human rights court.

The only convictions still standing are those of two ethnic Timorese -- militia leader, Eurico Guterres and former East Timor Governor, Abilio Soares. The appeal court also halved Guterres' 10-year sentence thereby reducing it below the legal minimum.

The impression that military impunity remains firmly entrenched was reinforced by the decision of the same ad hoc human rights court to acquit the head of Indonesia's special forces, Kopassus, Maj. Gen. Sriyanto Muntarsan, of gross human rights violations for his role in the 1984 shooting of Muslim protesters at Tanjung Priok in Jakarta. Families of the victims have no intention of letting the matter rest and say they will take the case further if the Supreme Court refuses to overturn the acquittal.

Concern has also been expressed about a military bill before Parliament, which it likely to have the effect of strengthening the military's power and influence through the re-establishment of its 'dual function' role and its territorial presence throughout the country.

Some have concluded that the recent developments concerning the military are reminiscent of the Soeharto era and that in reality little has changed since then.

In the case of serious crimes committed in East Timor, it is now clear that alternative international judicial mechanisms will be required to provide justice for the victims.

Although an International Commission of Inquiry on East Timor recommended in January 2000 that an international tribunal for East Timor should be set up, the UN controversially opted instead to give Indonesia the chance to bring the alleged perpetrators to justice under its own legal system. Unfortunately, the Indonesian authorities have shown that they are unwilling and unable to establish the truth of what happened in East Timor -- especially as regards the role of the security forces -- and to hold the perpetrators to account for their crimes.

While this is essentially a failure of political will, much of the blame must also be attached to the Attorney General's office for its failure to present credible cases against the accused and its reluctance to indict senior officers, such as former armed forces commander-in-chief, General (ret.) Wiranto. Wiranto was identified by Indonesia's own Commission for Human Rights Violations in East Timor (KPP-HAM) as the person with overall responsibility for the violence in East Timor.

The UN Secretary General is now coming under increasing pressure to establish a commission of experts to evaluate existing justice processes in Indonesia and East Timor and to recommend future action, including the possible establishment of an international tribunal. Support for such an initiative has recently been expressed in letters to the Secretary General from 106 representatives of East Timorese civil society, 78 members of the U.S. Congress and leading international human rights organizations including Amnesty International and Human Rights Watch.

The Indonesian Foreign Ministry's objection to outside interference in the judicial proceedings of a sovereign country is groundless. The proceedings arose as a result of an agreement with the UN and the international community has a special responsibility to intervene in the case of alleged crimes against humanity if the sovereign country is unwilling and unable to carry out a genuine investigation and prosecution.

In deciding upon the next step, the UN must avoid relying too heavily on the views of the Indonesian and East Timorese governments since their views are determined primarily by political as opposed to legal considerations.

The crimes committed in East Timor are of the utmost gravity. The UN must take special account of the views of ordinary East Timorese people, the victims and their families, which are not necessarily reflected by their government. It must also ensure that it fulfills its overriding responsibility to uphold the supremacy of international human rights and humanitarian law.

The writer is a researcher for the London-based TAPOL, the Indonesia Human Rights Campaign. He can be reached at plovers@gn.apc.org