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VI. Impunity and Lack of Accountability for Abuses

The experiences of the victims and their families involved in the cases documented in this report strongly suggest that the Indonesian government is not yet serious about addressing human rights violations by its security forces, at least in regions such as the Central Highlands of Papua, where there is little if any press coverage of alleged abuses.

Until it starts investigating all allegations of serious human rights violations and criminally prosecuting the perpetrators, the government will continue to be seen as tolerant of, and complicit in the human rights violations committed by its security forces. Until victims and their families see concrete and positive developments in accountability, they will, understandably, continue to be reluctant to report abuses and demand justice through the established institutions, and may be tempted to act unlawfully by taking justice into their own hands.

Of the 14 incidents detailed in this report, in only seven did victims or their families report the abuses to either the authorities or human rights organizations. In the remaining eight cases, victims or their families explained that either they had been specifically threatened by perpetrators not to make reports, or that they were too scared of reprisals by members of the security forces to do so. Others expressed deep disillusionment, believing that there was no utility in complaining because nothing could be changed. Neither of the two rape victims whose cases we documented reported the incident to the authorities, fearing reprisals from the perpetrators and stigmatization from the local community.

Victims will have much greater confidence to report abuse when they see credible processes of investigation and prosecution in place, and feel secure that, if they are threatened, authorities will provide effective protection. To better address cases of sexual violence, authorities need to institute confidential complaints mechanisms to help avoid social stigma, provide increased training to officers, and create referral systems to ensure that victims receive appropriate and timely health care.

Investigation and prosecution of human rights violations, of course, should not need to rely upon victim-initiated complaints. In almost all of the cases we investigated, police were aware of the existence of the alleged violations but did not initiate any investigation or process to ensure perpetrators were held to account. “Ignore it and it will go away,” appears to be the dominant strategy of the police in dealing with security force violations. While cases certainly seem to disappear (or rather, have nowhere to go), the impact of impunity crushes individuals, accumulate in communities, and reverberates more broadly, exacerbating the anger and sense of injustice that fuels the regions continuing conflict.

Impunity for security forces in Papua: Prominent cases

There has been little sustained effort by post-Soeharto governments to address past or contemporary human rights violations in the Central Highlands or anywhere else in Papua and West Papua. This neglect has had a significant impact on public sentiment towards Jakarta, as many abuses remain fixed in the public consciousness.

The official response to the assassination of prominent Papuan independence leader Theys Eluay in 2001 has greatly deepened cynicism. In 2003 seven low-level special forces (Kopassus) soldiers were found guilty, not of murder, but of mistreatment and battery leading to Eluay's death. The stiffest sentence was only three-and-a-half years. The chief of staff of the army, General Ryamizard Ryacudu, called the men heroes for the killing of a “rebel.”¹³⁶ No further investigations have been undertaken into who ordered or financed the killing in the first place.

The September 2005 acquittal of two senior police officers accused of command responsibility for the killing of three Papuan University students and torture of many others in Abepura in December 2000 by the human rights court in Makassar, Southern Sulawesi,¹³⁷ also drew condemnation from victims and human rights organizations. To many, the verdict highlighted the continuing ineffectiveness of measures to combat the impunity enjoyed by members of the security forces.

On December 7, 2000, unknown persons attacked a local police station in Abepura. The attack left a police officer and a security guard dead. Following the killings, the police, assisted by Brimob, raided three student dormitories in Abepura. During the raids one student was shot dead, and more than 100 others taken into custody and subjected to ill-treatment, including torture. Two students died while in police custody and another died later as a result of injuries he sustained while in custody. Another student suffered permanent paralysis as a result of injuries inflicted by police officers.¹³⁸ There was no evidence that any of the more than 100 students taken into custody were involved in the attack on the police station and they were all later released.¹³⁹

Pursuant to its role under Law 26/2000 on Human Rights Courts, Komnas HAM investigated the violations and 25 suspects were named.¹⁴⁰ However, Indonesia’s Attorney General’s office only proceeded with charges against two of the suspects.¹⁴¹ Rather than being charged under ordinary Indonesian law, Brimob commander Brig-Gen Johny Waismal Usman and Jayapura police commander Superintendent Daud Sihombing were charged with command responsibility for crimes against humanity under Law 26/2000 which, in addition to other elements, requires proof of the violation occurring as part of a “systematic and widespread” attack on the civilian population.¹⁴² Despite finding evidence of Brimob abuse and torture, the court was not satisfied that it was systematic or ordered by the defendants. The court declared, “We found that the defendant's [Brig-Gen. Johny Waismal Usman] actions at the time were his response as a superior. His action was in accordance with standard operational procedures thus we have decided to set him free of [sic] all charges.”¹⁴³

We are unable to judge whether this ruling was legally sound; however, the verdict caused dismay amongst Papuans and victims groups. Other concerns were raised regarding the legal process, such as lengthy delays in conducting the trial and the promotion and continued active duty service of both defendants while they were on trial.¹⁴⁴ The police also refused to cooperate with the Komnas HAM investigation and some of the investigation team members were intimidated and threatened by the police.¹⁴⁵ Furthermore, no new investigations were initiated, or new charges filed, resulting in no judicial accountability for the Abepura incident.

Another significant case involved students in Abepura in March 2006. Protesting students had blocked a road, demanding the closure of the Freeport mine and withdrawal of Indonesian security forces from the vicinity. They refused to negotiate with several delegations from the local parliament and ultimately refused police orders to disperse. After several hours of failed negotiations the police used force against the protestors, commencing with tear gas and then opening fire, reportedly after students bombarded them with rocks and bottles.¹⁴⁶ In the ensuing melee, protesters stabbed and beat to death three Brimob officers and an air force intelligence officer. Another police officer later died from injuries sustained at the protest. Twenty five people were treated for injuries including five with gunshot wounds. Videotape broadcast of police officers being beaten to death with pieces of concrete caused outrage around Indonesia.

In the aftermath, police from the same unit as those killed were among those who conducted raids on student dormitories, first firing warning shots and then beating students. One student died as a result of injuries sustained while in custody.¹⁴⁷ Twenty three men, including many university students, were arrested for the attacks on the police. Twenty were charged and prosecuted. In August 2006 two were sentenced to fifteen years each for murder, while 11 others were sentenced to between five and six years for lesser offences. ¹⁴⁸ By the end of 2007 at least eight of the other defendants had been sentenced to between 4 and 15 years' imprisonment.¹⁴⁹

While Indonesian authorities have an obligation to prosecute those believed responsible for murder, credible allegations were made that the suspects were tortured in custody to extract confessions and mistreated before and after court appearances.¹⁵⁰ One of the defendants reported that a senior police officer threatened to shoot him if he did not disclose certain information. The defendants also reported that, two hours before their trial in May, they were kicked by police officers, who also beat them around the head and body with rifle butts and rubber batons in order to compel them to admit their guilt in court. Those who refused to do so were allegedly beaten and kicked by police when they returned to detention. ¹⁵¹

One suspect, Nelson Rumbiak, after complaining in court in late August that he had been tortured, was severely beaten by police upon his return to the prison. Nelson Rumbiak told the court that statements he had made earlier against three of the accused were false, and that the police had coerced him into making these statements. On return to Abepura prison, three other accused men and Nelson Rumbiak were confronted by dozens of police officers outside the front gate. The police reportedly started beating Nelson Rumbiak's head with a rattan stick. When he fell to the ground, several police officers kicked him in the ribs and stomped on his body. Several police officers then chased the three accused men into the prison, and threatened to beat prison officers who were trying to keep the police officers out of the prison. Nelson Rumbiak was taken by prison officers to Abepura hospital for treatment for the injuries he had sustained in the attack. But as police and intelligence officers, as well as military personnel entered the hospital, they took him back to prison and doctors reportedly were unable to examine him fully.¹⁵²

Defendants also complained that they had no access to their defense counsel before the commencement of the trial in May 2006. Court monitors also reported that the presumption of innocence was compromised by the trial judges who denied defendants the opportunity to examine hostile witnesses.¹⁵³ In September 2006, seven lawyers and human rights defenders involved in defending the accused reported that they had received death threats from unknown persons. In response to a submission made by them to the court that the police had initiated the violence against the suspects at the demonstration, some members of the defense team were then charged with insulting the state.¹⁵⁴ No investigations or prosecutions have been launched into the allegations of death threats against the lawyers.

Mechanisms for Accountability

In Indonesia there are three fora where prosecution of human rights violations can take place. The first is in the courts of general jurisdiction, which apply the KUHAP (Criminal Procedure Code) and the KUHP (the Penal Code). The second is in the human rights courts created under Law 26/2000 to prosecute cases of genocide and crimes against humanity. The third is in the military courts for cases leveled against members of the military, which apply the KUHP and the Military Penal Code.

While in theory there are provisions in Indonesian law which allow for members of the military to be tried in civilian courts where there are civilian co-defendants,¹⁵⁵ in practice almost all cases involving members of the military are prosecuted in a military court. The exception is where a member of the military is charged with crimes against humanity or genocide, in which case they can be tried in the civilian human rights courts.

As some of the cases investigated in this report reveal, it is not uncommon for members of the military to intimidate and threaten victims and witnesses to prevent them from lodging complaints or pressuring them to withdraw existing complaints.¹⁵⁶

Prosecuting members of the police

Since the fall of Soeharto and the partition of the military and police (until 1999 they were united under a single command structure), the police are no longer afforded special legal protection and can be tried under civilian law in courts of general jurisdiction.¹⁵⁷ When police conduct amounts to a crime, it becomes a case for the Police Bareskrim (Badan Reserse Kriminal, Criminal Investigation Bureau). However, in the course of our research we failed to learn of even one recent case in the ordinary civil courts where police had been indicted or prosecuted for human rights violations under any theory.

There are, however, several new developments that may improve the overall accountability of the police. One is that Indonesia’s office of the inspector general, IRWASUM (Inspektur Pengawasan Umum), is undergoing changes aimed at strengthening its oversight capabilities, in particular with regards to the police. There is an ongoing effort to assume PROPAM (Profesi dan Pengamanan, Professionalism and Security) into their division, which would then consolidate the entire inspection and internal investigation component under their command. Under Indonesia law PROPAM is responsible for the internal investigation of police who violate internal policies and who are involved in corrupt activities that are not a violation of the Indonesian Penal Code.¹⁵⁸

The new KOMPOLNAS (National Police Commission), just over a year in existence, has an office within PROPAM. This new office has a twofold responsibility; to assist the President in determining policy directions for the police and to provide input to the President with regard to the appointment and dismissal of the national police chief. The office has the authority to collect and analyze information for making recommendations to the President on matters of budgeting, human resources development and equipment and infrastructure development of the police force. They may also provide information and recommendations to the President with the aim to improve the professionalism of the police, and are responsible for receiving recommendations and complaints from the public concerning police performance and conveying them to the President.¹⁵⁹

Neither of these developments, however, will compensate if political will is not mustered to investigate and indict police officers in the regular civilian court system when they commit human rights abuses that constitute common crimes such as murder and assault.

Impact of the Human Rights Courts

The establishment of human rights courts in Indonesia gave rise to hopes that at last Indonesia would make significant progress in combating entrenched impunity for human rights violations in Indonesia. However, these hopes have faded in the six years since the first human rights court was established. The record of the courts to date includes a string of acquittals which has left victims without remedy and human rights advocates thoroughly disillusioned.

As already explained, in September 2005 the Makassar Human Rights Court acquitted two senior police officials who faced command responsibility charges for the killing of three Papuan students and the torture of around 100 others. This has meant that no one has been held to account for the killing and ill-treatment of the students in Abepura.

In July 2005 the convictions of 14 serving and former members of the military for the 1984 massacre of demonstrators in Jakarta (the “Tanjung Priok” case), were overturned on appeal and to date, no one has been held accountable. The ad hoc Human Rights Court for East Timor (set up by Presidential decree in 2000), acquitted all but one of the defendants, a Timorese civilian.¹⁶⁰

While it is beyond the scope of this report to examine in detail the reasons for the ineffectiveness of the human rights courts, the causes are legislative, procedural, and political. Some of the key legislative weaknesses include deficiencies in the definitions of the elements of crimes which, while similar in many respects to those contained in the Rome Statute, have been significantly narrowed.¹⁶¹ This substantially raises the bar needed to secure convictions. One of the most glaring deficiencies is that only the crimes of genocide and crimes against humanity fall within the court’s jurisdiction,¹⁶² excluding other very serious human rights violations, such as singular cases of extrajudicial killing, torture, or enforced disappearances. The burden of proving the elements for crimes against humanity is extremely steep, especially the requirement that the violation occurred as part of a “widespread or systematic attack directed against a civilian population.”

Finally, under the procedures of the human rights court, Komnas HAM conducts a preliminary investigation and makes recommendations to the Attorney General’s office regarding who should be indicted. The Chair and Commissioners of Komnas HAM are appointed by Indonesia’s parliament and are ordinarily experts in law, human rights, or other relevant professions.  A notable pattern has developed of the Attorney General’s office rejecting recommendations by Komnas HAM to indict particularly senior military members,¹⁶³ with no apparent reasons for the decisions.

The greatest impediment to the effectiveness of the human rights court and other accountability mechanisms in Indonesia remains the lack of political will to confront high level police and military culpability for human rights violations. Despite some reform efforts,¹⁶⁴ in important respects the military continues to resist the supremacy of civilians. The police, with its historical orientation towards cooperation with the military and focus on internal security operations, also occupy a privileged position and wield substantial influence. Reform of both institutions will remain slow and difficult as many entrenched personal and institutional interests conflict with reform agendas and, critically, the public interest. 

Conclusion: Impunity Persists

In the cases documented in this report, only one member of the security forces to date has faced prosecution, and that was before a military court (a TNI member was sentenced to eight months in prison for killing 16-year-old Mozes Douw). To our knowledge, no Brimob or regular police officers have been prosecuted for their role in the remaining killings by police that we researched. No officers have been charged in the two rape cases described above. No officers have been charged in connection with the approximately 218 cases of alleged police ill treatment we documented. This is a snapshot of what appears to be the near total absence of accountability for members of the security forces who commit abuses in the Central Highlands.