April 22, 2010

Dear Chairman Stamboel,

Human Rights Watch is an international nongovernmental organization that monitors violations of human rights in more than 80 countries around the world.

We write to you to urge you to call on the Indonesian Parliament (Dewan Perwakilan Rakyat, DPR) to resume consideration of the military courts bill that would provide civilian court jurisdiction over members of the military for all crimes committed against civilians. A March 28 case in which three soldiers from the Strategic Reserve Command (Komando Cadangan Strategis Angkatan Darat, or Kostrad) allegedly assaulted several children shows the urgent need for civilian jurisdiction over members of the military. Past experience has shown that military courts lack transparency, independence and impartiality, and have failed to adequately investigate and prosecute alleged serious human rights abuses by members of the military.

The following case is illustrative of numerous incidents that have occurred in Indonesia over the years. According to recent media reports, at least three Kostrad members interrogated and assaulted four children between the ages of 10 and 14 in Depok, West Java, on March 28, 2010. The soldiers apparently believed that the boys had stolen a bicycle from their nearby housing complex. The soldiers allegedly took the children from their homes to the housing complex during the night, ignoring their parents' protests. There, they allegedly beat them severely and forced them to promise not to repeat their offense. The soldiers then handed the children over to local police, who declined to pursue the theft allegations against them. A Kostrad spokesman, Lt. Col. Husni, confirmed that the incident had occurred and that the soldiers suspected of involvement had been placed in military detention for 20 days for questioning, presumably by the military police.

Human Rights Watch is particularly concerned that pursuant to Indonesia's 1997 Law on Military Tribunals, the soldiers implicated in this incident will be investigated by military authorities and tried, if at all, before a military court rather than a court of general jurisdiction.

As detailed below, the military's response to incidents of human rights abuses against civilians has revealed serious shortcomings in the military justice system. Indonesia's military justice system lacks basic safeguards necessary to ensure justice and impartiality. Indonesia is failing to provide civilian victims of abuse at the hands of military personnel with an adequate remedy in violation of its international legal obligations. As a result, we urge you to introduce changes to Indonesian law to move these cases to the civilian justice system.

As you are doubtlessly aware, there is broad support in Indonesia for the principle that military personnel should be subject to the authority of the civilian justice system when they commit criminal offenses against civilians on Indonesian soil. President Susilo Bambang Yudhoyono and leaders of the main factions of parliament have all expressed support for the implementation of jurisdictional reform along these lines. In fact, the People's Consultative Council Decision No. VII of 2000 and article 65(2) of Law 34/2004 on the Indonesian Armed Forces, already state that soldiers are subject to the authority of the civilian courts for violations of the criminal code, and to military courts for infractions of the military criminal code.

For more than four years, lawmakers have been drafting a bill that would amend Indonesia's 1997 Law on Military Courts and would implement such reforms by shifting responsibility for investigating and prosecuting human rights abuses committed by members of the military against civilians from the military justice system to the civilian justice system. Although this bill was placed on the list of "priority legislation" for the 2009 legislative term, it was not put to a vote before the term expired in October 2009. As the next legislative session began, you led discussions between the parliamentary commission that you chair, Commission I, and the Minister of Defense. During that meeting, you reportedly agreed to prioritize the deliberation of the bill on military courts during the 2009-2014 term.

Because Indonesia's military justice system suffers from the following serious shortcomings, Human Rights Watch urges you to initiate reconsideration of the bill on military courts in Commission I as soon as possible.

Inconsistent legal standards for military and non-military criminal defendants

Currently, military personnel in Indonesia cannot be tried in civilian courts, with only a few rarely invoked exceptions.[1] The 1997 Law on Military Courts provides that such courts have jurisdiction to prosecute all crimes committed by soldiers.

Additionally the 1997 Law on Military Courts states that military courts can only apply one of two laws: the Military Penal Code and the general Criminal Code. This means that while civilians are subject to a criminal liability under a host of criminal laws outside the Criminal Code, soldiers are not.

In the case of the four children in Depok mentioned above, this restriction on the jurisdiction of Indonesia's military courts has the effect of subjecting military personnel who commit offenses to more lenient criminal penalties than their civilian counterparts. Indonesia's 2002 Law on Child Protection authorizes punishment of up to three years and six months' imprisonment and/or a fine of up to 72 million Rupiah (approximately US$8,000) for committing cruelty, violence or threats of violence, or abuse against children that does not rise to the level of "serious injury." Conversely, Indonesia's Criminal Code only authorizes punishment of maximum imprisonment of two years and eight months in prison or a maximum fine of 300 Rupiah (US$.03) for "maltreatment" not resulting in "serious injury."

 

Lack of transparency and independence

Indonesia's military justice system suffers from a lack of transparency and can easily face improper interference from senior military personnel.

Military court proceedings are frequently closed to the public, and information on prosecutors' charges, verdicts, and the basis on which they were rendered is largely unavailable. This is in part due to a provision of the Law on Military Courts which permits closed proceedings for cases involving military or state secrets but does not define those terms. Victims of human rights abuse and their families have reported that the military has refused to respond to their requests for information about military court verdicts and judicial opinions. The opaque character of military justice in Indonesia undermines the ability of civil society organizations, the media, and even civilians in government to monitor and analyze the administration of military investigations, prosecutions, and trials.

Although Law 34/2004 on the Indonesian Armed Forces placed the military courts under the supervision of Indonesia's Supreme Court, in practice, the military continues to control the composition, organization, procedure, and administration of the military courts. Investigations into alleged criminal acts committed by soldiers are undertaken by military police, prosecuted by military prosecutors, and adjudicated by military judges. Military judges are active servicemen, and they can be dismissed by an Honorary Board of Judges whose members are designated by the commander of the armed forces.

 

Moreover, the military justice system gives officers within the chain of command the ability to affect the course of military proceedings at many stages throughout the investigation and trial process, giving rise to serious conflicts of interest. Investigations into allegations of misconduct by members of the military are carried out by a team consisting not only of members of the military police and a military prosecutor, but also a superior officer with the right to punish the accused (atasan yang berhak menghukum, or Ankum), to whom all other investigators must report. In addition, pursuant to a separate mechanism (Perwira Penyerah Perkara, or Papera), senior military officers have discretion to determine whether a given case will proceed to the military court for trial. The 1997 Law on Military Courts gives this power to the commander of the armed forces and the chief of staff of the branch of the armed forces in which a given military defendant serves (the army, the navy, etc.), and these individuals are also permitted to appoint regiment commanders to serve in the role of Papera. This provision also explicitly permits the commander of the armed forces to order any investigation to be closed in the interest of the law, the public, or the military.

These provisions seriously weaken the independence and impartiality of Indonesia's military justice system. In particular, they give individuals with an interest in suppressing information that would reflect poorly on the professionalism and discipline of members of the military under their direct or indirect command, the power to control investigations into allegations of wrongdoing. While the civilian Supreme Court has final appellate jurisdiction over cases heard in military courts, military prosecutors must affirmatively appeal verdicts against military defendants in order for Supreme Court review of a case to occur. This rarely occurs in practice. The mere possibility for Supreme Court review of military trials is insufficient to ensure the independence of the military justice system.

Failure to adequately investigate and prosecute alleged human rights abuse by military personnel

Not only do structural flaws degrade the independence and impartiality of Indonesia's military justice system, in practice, the military has routinely failed to respond to allegations of abuse in a serious manner. Military investigations into alleged human rights abuses appear only rarely to result in trials, and then, only for low-ranking soldiers. In the few military trials on which information is publicly available, military prosecutors brought relatively insignificant charges against the accused, and even then, the sentences handed down by military judges have been extremely lenient.

In a recently published book commissioned by Indonesia's Special Forces (Komando Paskan Khusus, or Kopassus), Kopassus Untuk Indonesia, Kopassus representatives claim that in the past three years, the military justice system has investigated and punished 128 of its personnel (37 in 2007, 24 in 2008, and 17 in 2009) and is more effective in ensuring justice than the civilian justice system. However, the record of the military justice system's performance in a number of cases involving members of Kopassus as well as other components of the Indonesian armed forces seriously undermines this claim.

With a few exceptions, in the cases that Human Rights Watch was able to monitor, human rights abuses allegedly committed by Indonesian military personnel against civilians did not result in investigations, let alone prosecutions. For example, a June 2009 Human Rights Watch report, "What Did I Do Wrong?" documented incidents in which nine civilians in the town of Merauke, Papua, alleged that they were subjected to human rights abuses including arbitrary detention and beatings and other forms of ill-treatment at the hands of members of Kopassus. To Human Rights Watch's knowledge, no Kopassus soldiers have faced trial for the incidents recounted in the report.

In the few situations where the military is known to have prosecuted soldiers for committing human rights abuses against civilians, they have been limited to those of low-rank. In turn, the even fewer military personnel who have been convicted of committing serious crimes have almost universally received extremely light sentences.

 

For example, between 1997 and 1998, members of the Indonesian military are believed to have forcibly disappeared two dozen student activists whom they deemed a threat to Indonesia's security. Beginning in 1998, 11 military personnel were prosecuted before a military tribunal on allegations that they had kidnapped the nine students who were later released from captivity alive. The soldiers were charged with the crime of criminal deprivation of liberty not resulting in death, which carries a maximum penalty of eight years' imprisonment. However, military prosecutors demanded relatively lenient punishments for those accused of kidnapping the nine students, ranging from 15 months' imprisonment to 26 months' imprisonment and dismissal from the military. The penalties actually imposed by the judges were even lighter, ranging from 12 months of imprisonment to 22 months plus dismissal from the military. Later, following closed proceedings and in an unpublished decision, a military appeals court invalidated the dismissal of seven of the defendants from the military.

Prosecutors did not charge any of the defendants with torture, even though several victims publicly alleged they had been severely tortured in detention. They also failed to charge anyone in connection with the abduction of the 14 activists who were never found or the one who was found dead. While three senior officers were investigated and found to have borne command responsibility for the incident by a military honor board, the board declined to recommend them for trial, and instead merely dismissed one from the armed services and two from their previous posts. In part as a result of the closed appellate proceedings described above, seven of the eleven military personnel convicted were known to be serving in the military as of 2007, and all had received promotions.

Another instance in which the military justice system has failed to ensure accountability for human rights abuses committed by soldiers against civilians is the case of the murder of Papuan independence advocate Theys Eluay in November 2001. Eluay was abducted and killed after leaving an event at the Kopassus barracks in Jayapura, Papua. While Eluay's driver, Aristoteles Masoka, initially escaped, he disappeared shortly thereafter and is presumed dead. Military prosecutors charged nine members of Kopassus with manslaughter, which carries a maximum penalty of 15 years of imprisonment. The court found seven of the indicted soldiers guilty and punished them under the lesser charge of assault, imposing sentences ranging from two years to three years and six months' imprisonment and dismissal from the military. However, at least one of the soldiers initially sentenced to dismissal remains in Kopassus to this day, perhaps as a result of a decision of a military appeals court. He now holds a senior command position in the force. To Human Rights Watch's knowledge, no members of the military have been tried in connection with the enforced disappearance of Aristoteles Masoka.

 

In a number of other cases, it appears that the Indonesian military justice system has dispensed extremely lenient sentences to soldiers convicted of serious human rights abuses against civilians. These include:

  • Three military personnel convicted in July 2003 of raping four women in North Aceh. Although the maximum sentence is 12 years' imprisonment, the men were given prison sentences ranging from two years and six months to three years and six months and were dismissed from the military.
  • Three military personnel were convicted in July 2005 of torturing a civilian in Bogor, West Java, on the suspicion that he had stolen a pair of sandals. According to a forensic report, the civilian died the following day from injuries sustained as a result of the torture. A military court convicted the soldiers of assault and sentenced them to prison terms ranging between one and one-half months and 18 months.
  • In June 2008, a military court found 13 navy personnel guilty of opening fire on a group of civilians in Pasuruan, East Java, killing 4 civilians and injuring several others in May 2007 in connection with a land dispute involving a business that had hired the soldiers to provide security. Despite the fact that the relevant charges carried a maximum penalty of 15 years of imprisonment, the soldiers received prison terms ranging from 18 months to 36 months' imprisonment and dismissal from the military.

The International Covenant on Civil and Political Rights (ICCPR), which Indonesia ratified in 2006, sets out international legal standards for the conduct of fair trials and for ensuring that victims of rights violations have an effective remedy. Criminal trials must be by a "competent, independent and impartial tribunal established by law" (art. 14(1)). Criminal trials should also generally be in public (art. 14(1)). And the victims of human rights violations are entitled to a remedy that includes having their rights determined by "competent judicial ... authorities" (art. 2(3)). The Indonesian government has failed to adequately prosecute members of the armed forces accused of human rights abuses before open and impartial military courts. As a result it is depriving victims of rights abuses by military personnel an effective remedy as required by the ICCPR.

The UN Human Rights Committee, the expert body that monitors state compliance with the ICCPR, has called upon state parties where there is widespread impunity for the armed forces-including Chile, Guatemala, Colombia, Lebanon, Egypt, and Cameroon-to subject military personnel to civilian jurisdiction for alleged human rights abuses. In March 2010, the Human Rights Committee concluded that Mexico should modify its military justice code so that military courts do not have jurisdiction in cases of human rights violations and that "in no case will military justice be able to judge incidents whose victims are civilians."

For the above reasons, Human Rights Watch strongly urges you to publicly and privately call for the DPR to immediately resume consideration of the military courts bill. The bill should unambiguously transfer military jurisdiction to investigate and prosecute alleged human rights violations against civilians to the civilian justice system and specialized civilian institutions such as the Anti-Corruption Commission and Human Rights Courts. The bill should also deny military police, prosecutors, and military officials the authority and ability to interfere with civilian investigations and trials. The military justice system should continue to adjudicate alleged violations of military law, but the Military Criminal Code should be revised and narrowed and should be amended to ensure greater transparency and judicial independence.

Until such legal revisions are implemented, we urge you to call on the Indonesian military to make information about all ongoing investigations by military police, prosecutors, and courts publicly available. This would include information regarding the progress of the investigation into the alleged involvement of military personnel for the assault on four children in Depok referenced above.

Thank you for your attention to this matter, and we welcome the opportunity to discuss these issues with you further.

Sincerely,

Elaine Pearson

Deputy Director  

Asia Division

[1] While the 2000 Law on Human Rights Courts authorizes human rights courts to assert jurisdiction over cases involving allegations that members of the military committed serious human rights abuses, at present it applies only to allegations of genocide and crimes against humanity, and not to the broad spectrum of conduct that constitutes human rights abuse. Similarly, while the 2002 law on the Anti-Corruption Commission states that the commission has authorization to control and coordinate corruption investigations and prosecutions even where the alleged perpetrator is a member of the military, the Anti-Corruption Commission has never exercised this power, insisting that the Law on Military Courts takes precedence and must be revised before it can assert jurisdiction over military personnel.