Prospects for Settling Past Human Rights Violations During Jokowi's Final Year

“I and fellow victims of the Priok [incident] are feeling sad, Brother. On 11 January, we suffered another persecution, [with us] not being recognized by the government. [The Tanjung Priok incident was not among] the 12 cases of gross human rights violations," said Wanma Yetty.

Yetty is the daughter of Bachtiar Johan, a trader who died from a gunshot would during the Tanjung Priok incident on 12 Sept. 1984. Bachtiar's body was identified by a forensic team during an exhumation16 years later, following a report from the National Commission for Human Rights (Komnas HAM) that concluded that the Tanjung Priok incident was a gross human rights violation.

Yetty chairs the Indonesian Association of Families of the Disappeared (IKOHI). Among its members are those who lost family members in 1997-1998 to kidnappings and forced disappearances. It is one of past human right violations President Joko “Jokowi” Widodo recently acknowledged and expressed regret over.

Representing the organization, Yetty said she appreciated the President's acknowledgment. However, she was irked to find out that the President had not included the incident from which she had endured the impacts. She and fellow victims of the Priok incident demanded that the President acknowledge it.

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The concern Yetty voiced represents the many victims of the country’s past gross human rights violations. For some who have been affected, like Sumarsih who lost her son Norma Irmawan, the President’s mere acknowledgement and remorse over past gross human rights violations are not enough. They are demanding that the perpetrators be brought to justice.

Others hope that the government will follow up with a policy to restore the victims. There are those who are still seeking clarification over the fate and whereabouts of missing family members. Still others are simply hoping that with the state’s acknowledgment, society will no longer think that the gross human rights violations perpetrated against the victims are simply accepted as part of history.

I appreciate the President's approach to the country’s past gross human rights violations dating back to the 1960s. At a limited Cabinet meeting on 16 Jan., the President reportedly said he plans to issue a presidential instruction to follow up on the state’s acknowledgement to uphold the victims' rights.

The statement of acknowledgment and the government’s planned policy on victim restoration are what matter most to those affected like Yetty, who had been left with uncertainty for years without the goodwill of authorities to uphold justice and restore truth. Mere recognition is meaningless without a thorough settlement.

Thorough solution

The government appears to have acknowledged only 12 incidents, whereas according to Komnas HAM investigations, there were 16 incidents of gross human rights violations. The four incidents missing from the government’s list are the incidents in 1984 in Tanjung Priok, in 1999 in East Timor (now Timor Leste), in 2000 in Abepura and in 2014 in Paniai.

Why did the President fail to mention these incidents?

The government appears to view these four cases as receiving judicial arbitration through the Human Rights Court. Despite the fact that the settlements sought were deadlocked, the government has pointed to these cases as proof that judicial arbitration had failed to result in settlements due to lack of evidence.

This argument is wrong. Several studies on the judicial proceedings have concluded that the low level of the government's political will and a failure to guarantee protection for witnesses and victims were to blame for the deadlock in their judicial arbitration at the court. The studies were carried out by, among others, the UN Secretary-General's Commission of Expert (CoE) on gross human rights violations in East Timor, the International Center for Transitional Justice and the Commission for Missing Persons and Victims of Violence (Kontras) in 2010 on all judicial and nonjudicial arbitrations, and an academic study by David Cohen at Stanford University.

The problem does not lie in insufficient evidence. Evidence abounds. It is the state that has not handled it well. Witnesses and victims’ testimonies are the bulk of the evidence. In the East Timor case, many victims refused to testify at court because of the absence of protection guarantees.

In the Priok case, witnesses and victims appeared at court, but were forced to change their testimonies through intimidation and promises of kickbacks. In the Abepura case, the victims who testified felt unsafe. In the Paniai case, the victims doubted the seriousness of the state and refused to testify. It's worth noting that the state tried the Paniai case eight years after the incident. The judicial panel decided that the Paniai tragedy was a gross human rights violation, but the alleged perpetrators were acquitted.

Demarcation line

To settle the incidents of past gross human rights violations requires a distinctly drawn line of demarcation between the past and the present. Past atrocities were inherent under an authoritarian regime. Past serious rights violations were the product of the abuse of power. Uncovering and seeking resolution to the cases should be meant to rectify what went wrong in the past.

The government and Komnas HAM need to distinguish between gross human rights violations that occurred in the past and those that have occurred since. Referring to Law No. 26/2000 on the Human Rights Court, so-called past gross human rights violations were limited to locus and tempus delicti before the law was passed on 23 Nov. 2000.

The definition of “past” can also refer to People’s Consultative Assembly (MPR) Decree No. V/MPR/2000 on National Unity and Sovereignty, which was ratified on 18 Aug. 2000. The decree opened up the possibility of nonjudicial settlement through the establishment of a Truth and Reconciliation Commission (KKR).

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Based on these two rules, all past incidents that smack of gross human rights violations should be acknowledged. The Priok case deserves to be included, given that it occurred on 12 Sept. 1984 and Komnas HAM recognized it as a gross human rights violation.

The same applies to the politically motivated incident of 27 July 1996 and other gross human rights violations during the imposition of the military operation area (DOM) in East Timor, Papua and Aceh.

Specifically for Aceh, the President mentioned two past cases. For East Timor, none were recognized. In Papua, the President mentioned neither of the two past cases, the 1996 Mapenduma and 1998 Biak tragedies, despite their significance for the Papuan people.

They must be mentioned to answer why past abuses have been left unresolved.

Meanwhile, three incidents that the President mentioned, the Wasior (2001), Wamena (2003), Jambo Kepok (2003) incidents, are not classified as “past” gross human rights violations, but this does not mean they did should not be mentioned. They must be mentioned to answer why past abuses have been left unresolved. This includes the case of the assassination of rights activist Munir on 7 Sept. 2004, which Komnas HAM has classified as a gross human rights violation.

So, the state needs to be comprehensive in its acknowledgment of past gross human rights violations, as justice and factual truth are at stake. Their recognition must also touch on gender-related violence. For example, the state must acknowledge the sexual violence and rape perpetrated against women of Chinese descent during the May 1998 riots, as well as the sexual slavery of women imprisoned in Plantungan during the 1965-1966 tragedy.

Statement of apology

The state’s acknowledgement of the government’s mistakes and plan to uncover the truth is among the steps toward nonjudicial settlements, which are constitutionally mandated. Another mandated step is to issue an apology. In other countries, issuing a public apology is a political decision that separates the present government from past regimes.

There are those who choose to forgive and forget the incidents. Others forgive but not forget the incidents as reminders of the past as well as lessons to be learned for the future. In Chile, President Patricio Alwyn apologized to the victims of past gross human rights violations. In Australia, Prime Minister Kevin Rudd also apologized to Aboriginal Australians as the first people to inhabit the kangaroo country. Finally, Netherlands King Willem Alexander apologized to the people of Indonesia, who were victims of past atrocities committed by the Dutch colonial administration.

In Indonesia, former president Gus Dur was the only other state head to extend a public apology for the 1965 communist purge. He asked that Provisional People’s Assembly (MPRS) Decree No. XV/MPRS/1966 be revoked on consideration that it provided a legal basis for prejudice and discrimination against those believed to be a part of or be connected to the communist movement.

Every government during the reform era should feel obligated to resolve past gross human rights violations that occurred during the New Order regime. The law mandates thorough settlement, from acknowledging the government’s mistakes, uncovering the truth and issuing an apology, to pursuing reconciliation and prosecuting the perpetrators in a special court.

Also read: Uncover the Truth for Reconciliation

The state’s acknowledgement has been shown in its establishment of the Truth and Reconciliation Commission as mandated by the 2000 MPR decree. The decree stipulates that the commission be tasked with upholding the truth by uncovering abuses of power and human rights violations that occurred in the past in accordance with the prevailing laws and the Constitution. The commission shall carry out the reconciliatory process in view of the common interest as one nation.

It states further that after uncovering the factual truth, the following steps are to acknowledge mistakes, apologize, grant forgiveness, reconcile, enforce the law, grant amnesty, carry out rehabilitation, or other useful alternatives to uphold national unity and integrity in the spirit of bringing to justice to the people.

Simply put, when the state admits that its mistakes resulted in gross human rights violations, the state should apologize and restore the victims' rights.

Judicial prosecution

It is worth noting the 1998 reform movement demanded the state to reach judicial settlement through "special handling". The explanatory text of Law No. 26/2000 states that gross human rights violations are extraordinary crimes that require special processes of investigation, examination, and prosecution.

It is the “special handling” that needs to be taken. The cases that have brought to court, such as the 1984 Tanjung Priok, 1999 East Timor, 2000 Abepura and the 2014 Paniai incidents, resulted in the acquittals of the accused. A way out should be sought for a deadlocked judicial settlement without disrespecting the court's original decision.

The state cannot meet its obligation to prosecute the perpetrators simply because the alleged perpetrators have been tried before and therefore cannot be tried a second time (ne bis in idem). Their cases can still be brought back to court. The mistakes made during previous judicial processes should not be repeated.

Whatever the results will be, pursuing thorough and comprehensive settlements remain the state’s obligation, regardless of who heads the state.

The state is still obliged to bring the culprits to justice, especially for those incidents that have never been brought to court. It would be premature to deem that the 12 incidents mentioned by the President do not have enough evidence. In accordance with the Law on the Human Rights Court, the state’s obligation to gather evidence rests with the Attorney General, and this is exactly what has not been implemented in judicial process. The investigations did not proceed because the Attorney General vehemently rejected the results of the Komnas HAM investigation.

President Jokowi now needs to prove that the acknowledgment he has issued in the final year of his administration is not merely a political statement in the lead-up to the 2024 general election. The House of Representatives (DPR) cannot wash their hands of these obligations, as some are among the DPR’s responsibilities, given its role in proposing a Presidential Decree on an ad hoc human rights court and issuing policies.

Whatever the results will be, pursuing thorough and comprehensive settlements remain the state’s obligation, regardless of who heads the state. This is so that all Indonesian people can continue to learn from what happened in the past, why gross human rights violations happened, and how this nation can prevent them from recurring in the future.

Usman Hamid, Director of Amnesty International Indonesia

This article was translated by Musthofid.