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papers and articles written by AGUNG YUDHAWIRANATA for academic and seminar purposes.


 
THE ACQUITTALS OF EAST TIMOR TRIALS: A WASTED OPPORTUNITY TO LEARN

(written together with Asmara Nababan, for presentation at a seminar held by the Melbourne University School of Law, Postgraduate Program, 16 January 2003)


Introduction

The establishment of the Ad Hoc Human Rights Court on Gross Human Rights Violations in East Timor has been waited for long by the victims, human rights activist, even the international community who concern about human rights in Indonesia. The Ad Hoc Human Right in essence would examine all the assumptions of and also determine the responsible parties for the chain of crimes against humanity in Timor Lorosae before, during and after the referendum in 1999.

The court, which has been held at the District Court of Central Jakarta, can be regarded as an inspiration since it has become a legal landmark and the initial step in the process of justice for those who have suffered from the state apparatus’ misdemeanors. It would also exhibit to what extent Indonesia can promote and protect human rights. It has at least two essential implications in the context of human rights promotion and protection in Indonesia. First, the establishment of the court opens the opportunity to conclude the past human rights violations, which also can be a stepping stone towards the reform of Indonesia’s legal system; Second, the court, which initially would address the human rights violations in East Timor post referendum, will be the preliminary parameter that would indicate how serious the government of the Republic of Indonesia is in protecting and promoting human rights.

However, since the beginning the formation of the Ad Hoc Human Rights Court has invited many responses. The election of the panel of judges and the General Prosecutor are important tools in the judicial process. A few names of the judges elected have a bad record that increases the public’s pessimism on the Human Rights Court. Although the selection of judges already fixed since December 2001, only towards the end of the month of January, did the president issued a President’s Decree. Moreover, until a few moments before the work commenced, the supporting facilities have not yet been completed, such as legal instruments for protection and witnesses. Finally, it appeared in the form of the Government’s Regulations (PP) No.2/2002, concerning a protection program for victims and witnesses, and in Government’s Regulations No. 3/2002 concerning Compensation for the victims.

Asides from that, the capability of the judges and prosecutor to comprehend and apply the understanding of Crimes Against Humanity and genocide has become a crucial point in the eyes of the public. The understanding and comprehension of this form of crime becomes the basic skill, considering that the clauses regulated in Articles 7 and 9, Act. No. 26/2000 is actually adopted from the Rome Statutes with a few distortions that in fact, weakens the concept and complicates the process of establishing evidence. Whereas, this Ad Hoc Human Rights Court is the first trial that deals with a form of extra-ordinary crimes, and the result of the process becomes a guide for the settlement of various cases of human rights violations that occurs in Indonesia.


Disappointing Results from the Trials

In 14th of August 2002, panels of Judges of the Ad Hoc Human Rights Court has acquitted Timbul Silaen, and Herman Sediyono et al, from all of the indictments of crimes against humanity in East Timor charged by prosecutors, following a below-minimum sentence given to former governor Abilio Soares for similar charge a day before. In 27th of November 2002, Militia leader Eurico Gutterres decided guilty and got 10 years penalty but there was no immediate order to put him in jail. In 28th of November 2002, the Court has acquitted Adios Salova, Leonito Martins, and Asep Kuswandi, followed by another acquital of Endar Priyanto the next day. To date, the only military officer who was decided guilty for attrocities in East Timor is Soedjarwo, who was sentenced for 5 years in 27th of December 2002. The latest verdict in was another acquital for Yayat sudrajat in 30th of December 2002.

Accordingly, most of the military defendants were acquitted. Such verdicts are hardly surprising considering the due process of law in the courtroom. When the verdicts were issued, the other cases concerning different defendants but with the same context of indictment and incidents were still in process. If one is within the same scope of presumption with the process of examination, indictment, substantiation and charge of the cases the defendants acquitted, then such acquittal will influence all the other cases.

A Human Right Court processing crime against humanity should avoid the danger of it becoming a mock court. Thus the court should exert maximum effort in conveying the truth concerning the root and nature of the incident in order to avoid sharpening prejudice in the future. In order to meet this end the prosecutor and panel of judges should have paid attention to the reason behind the establishment of the court and the composition of Law on Human Right Court.

First of all the main objective of establishing the human right court is to examine the assumption that crime against humanity had occurred, as stated by Geoffrey Robertson QC, “policies resulting in crimes conducted beyond the boundaries of humanity not always emerge from de jure orders, the policies may also come forth from “powers” that may or may not be of the legitimate government but possess de facto control, or free reign in a certain area”. Second is to demand accountability from the policy makers who abused their power or authority and thus causing or enabling the crime against humanity to happen in East Timor pre and post referendum. Third is to create process of justice for the victims.

Observing the three objectives then it is clear that the acquittal have not answered any of them. The question is why it could happen. It was made possible by several factors:

First the prosecutors in the trial should have functioned as the representatives of the people (State) in fighting the crime. Instead, they have “reversed” their function into becoming the defender of crimes due to their failure in presenting relevant and significant witness and evidence in court. The prosecutors should have shown their maximum effort in locating and presenting witnesses and evidences whereas judging from the indictment and the cross-examination of witnesses they certainly have not done so. Because of the failure, the prosecutors become a future threat to the society in fighting crime, especially crime against humanity.

Second, the panels of judges have been under immense pressure. This pressure emerged from the weak evidences and witnesses presented by the prosecutor. Thus the judges found it difficult to formulate holistically what had happened in East Timor. Pressure may have also come from the growing strength of conservative politic outside the court, thus the panel of judges became hesitant in making the maximum decision amidst the weak witnesses and evidences. Pressure may also occur as the result of the lack of appropriate facilities in processing the cases, thus they did not have further opportunity in maximizing their ability.

Third, the prosecutors and the panel of judges face difficulties in interpreting crime against humanity per Law No. 26/2000 definition due to the restricting parameters of the criminal code of procedure. When the ordinary criminal code of procedure is implemented in the trial process of extra ordinary crime the instrument became crippled. The crime against humanity as a serious threat to humankind deemed by the international community as the common enemy to humankind has become a crime equal to the common crime in the hand of the judges. Thus in extracting and identifying the crime against humanity in East Timor the prosecutors and judges lost their direction and trapped in the common crime’s logic and hypotheses. The necessity to prosecute and punish has been abandoned.

Fourth, due to the difficulties and limitation in comprehending and implementing the provisions contained in Law 26/2000, the prosecutors and judges took the minimum route in examining the root of the case. Thus the court has been trapped in merely exercising the formal routine of presenting witness and evidence. Similarly in examining the elements of crime against humanity such as command responsibility, the process became oriented merely to identify perpetrators and accountable parties. Thus in their verdict instead of proving crime against humanity in the context of systematic and widespread, the judges only stated that there was occurrence of manslaughter. Thus the contradiction and ambiguity of the verdict was unavoidable, stating that there was crime against humanity but no one was accountable except the pro-integration group.

Fifth the prosecutors and judges have been immersed in narrow-minded image of nationalism, blunting their senses in identifying what had really occurred in East Timor amidst the abundant evidences. In their eyes the defendants were not people suspected of having done a crime but patriots who have exercised their duty to the state. Such people deserve defense and not prosecution. In such condition the judges and the prosecutors have served as the real defense in the trials. The court thus has metamorphosed into the strongest fortress for the protection of the defendants.

From the above five possibilities the acquittals issued by the panel of judges show a serious failure in upholding justice for the victims and promotion of human rights. What is the lesson to be learned from such process? Generally it can be said that the first process of trials is a failure in maximally utilizing this opportunity to learn the proper conducts in prosecuting crime against humanity as serious international crime. We have also failed in gaining maximum benefit in promoting and protecting human rights and giving justice for the victims. In other words, this ad hoc human right court has failed in pioneering the effort to break the chain of impunity and promoting legal steps in the context of human rights in Indonesia. It has also failed in comprehending the existence of abuse of power in the human right violations that fall under its jurisdiction.


Unwilling and Unable

When the international pressure upon Indonesia to account for the crimes it did in East Timor 1999 and the demand to establish international court was mounting, Jakarta had to give concession. Several hours before the UN Human Rights Commission special session to create a Commission of Inquiry on East Timor (CIET) was to open in September 1999, Jakarta announced that the National Commission of Human Rights would launch its investigation, and a human right court would be held to process the case. The establishment of this human right court has also gained support from the majority of HR defenders in Indonesia. The main reason for this support is that Indonesia needs a national mechanism to resolve the many systematic and widespread human right violations that have occurred from Aceh until Papua.

The Indonesian military had to agree with its establishment since it would be more convenient for the military to face the legal process in Indonesia rather than on international level. It should also be noted that the Indonesian military at the moment was in quite weak position, being under immense pressure from the democracy movement in Indonesia to eliminate the military dominance in political arena.

The agreement and support from the military at the initial level of the investigation drastically changed when the investigation was also aimed at the high military officials. The resistance was already apparent in the efforts of General Wiranto to avoid giving any testament in front of the National Commission of Human Rights (Komnas HAM) Inquiry Team. The inquiry process conducted by Komnas HAM clearly showed sufficient evidences of Indonesian military’s involvement in the crime against humanity in East Timor

The government of Abdurahman Wahid (1999-2001) was not strong enough to consistently follow up Komnas HAM’s inquiry. The investigation conducted by the General Attorney as the legal follow up to the inquiry process began to seem unpromising after the many deviations from the results of the Komnas HAM’s inquiry. The Presidential Decree No.96/2001 on the Establishment of Ad hoc Human Rights Court for East Timor case showed two fatal mistakes: the limitation of locus delictum to only 3 regencies, and tempus delictum only in the period post referendum. The international and local pressure only managed to push for the correction of the tempus of the crime into covering the period before referendum as well.

The legal process was overshadowed by the increasing conflict of the political elites in Indonesia, added by the bloody conflicts in Ambon, Sambas and Aceh, which have given the leverage for the military to regain its importance in the political world of Indonesia.

The change of president in 2001 provided even clearer picture of how there is no strong political commitment in Indonesia ( government and parliament) to establish a fair and just legal process for crimes against humanity which the military has to be accountable for, including those that occurred in East Timor .

Meanwhile, the existing elements of democracy are unable to push for a fair and just legal process. Unable because there is no adequate political support from the real politic forces. The five largest political parties seem to cease regarding human right violations as a main priority, there is even a party that promotes amnesia as an alternative resolution for the past time human rights violations.

The war against terrorism campaign has gained momentum in Indonesia after Bali Bombing, which has also deprived the resolution for human right violations from the attention it requires, even from the media in Indonesia.

The failure to break the impunity effectively in Indonesia is the result of unwillingness and inability, thus the only alternative remains is for the international community to materialize its responsibility to bring the justice, especially in the case of crimes against humanity in East Timor in 1999 .


posted at Friday, January 31, 2003, 7:25 PM by agung yudha



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Agung Yudha
Agung Yudhawiranata
Born in Bandung, Indonesia, on 12 July 1976. Holding a Bachelor's degree in Politics (S.IP) from Gadjah Mada University of Yogyakarta majoring in International Relations, and a Master's degree in Laws (LL.M) from the University of Hong Kong, majoring in International Human Rights Laws.
Currently working as a program coordinator at the Institute for Policy Research and Advocacy (ELSAM).
Also known a freelance researcher and a poet.


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