Human Rights Watch charged today that irresponsible legislators in Indonesia are using human rights arguments to protect perpetrators of serious abuses.
A constitutional amendment passed today by the Indonesian People's Consultative Assembly makes it far less likely that former President Soeharto or any army officer could be charged with crimes against humanity for any atrocities committed by Indonesian troops from 1965 to the present.
Amendment 28(1) invokes the principle of non-retroactivity, meaning that no one can be charged with a crime that did not constitute an offense in law at the time it was committed. Since Indonesian law has no provision for crimes against humanity, the most serious charge that anyone involved in the scorched earth campaign in East Timor or the atrocities in Aceh could face is murder ?at least in an Indonesian court.
"Crimes against humanity are so serious that non-retroactivity doesn't usually apply to them," said Sidney Jones, Asia director of Human Rights Watch. "This is the prevailing trend in international law, and Indonesian judges should go along with it."
Human Rights Watch said the new amendment had several immediate ramifications:
1) It could mean that the Indonesian masterminds of the 1999 violence in East Timor will be judged less harshly than rank-and-file militia members. The operating assumption up until now has been that perpetrators of crimes against humanity would be tried either by an international panel of the Dili district court, with international judges working alongside East Timorese colleagues, or by courts in Jakarta. Senior Indonesian army officers are unlikely to be extradited to East Timor. This would mean that if and when the Indonesian Attorney-General succeeds in bringing to trial the army officers who orchestrated the Timor destruction, they would be tried for the common crime of murder, while their East Timorese followers could face charges of crimes against humanity under East Timorese law. U.N. Secretary General Kofi Annan has said repeatedly that if the Indonesian courts proved not up to the task of holding the perpetrators of the violence in East Timor accountable, the question of an international tribunal could be reopened.
2) The bill on a human rights court now under discussion in parliament could be rendered weaker than it already is. The bill would set up a human rights court for trying serious human rights offenses, including crimes against humanity, and for the first time would incorporate provisions on the latter into Indonesian law. The proposed court will only be able to try suspects whose crimes were committed after the law takes effect. But the bill also allows the Indonesian president to set up ad hoc human rights courts for specific cases, such as the human rights abuses committed over the last decade in Aceh. Those ad hoc courts, as the bill now stands, would not be bound by the non-retroactivity principle. That will likely change with the new amendment. The bill will be debated and passed in some form next month.
Human Rights Watch called on everyone concerned about accountability in Indonesia to work toward four goals. They should publicize international standards relating to crimes against humanity. They should work for a revised amendment in next year's session of the People's Consultative Assembly to explicitly exempt crimes against humanity and similar grave international crimes from the non-retroactivity provision. They should work for ratification of the International Covenant on Civil and Political Rights, a treaty that would impose important rights obligations on Indonesia. And they should get other countries to gather evidence and bring indictments against suspected Indonesian human rights violators, following the Pinochet precedent.