Inside Indonesia, October – December, 2007

Victims of human rights abuses in Aceh have not yet seen the legal processes they’ve been promised

Leena Avonius

Some time ago, the International Organization for Migration (IOM) and Harvard Medical Team published an assessment of the psychosocial needs of conflict-affected communities in Aceh (see the article by Jesse Grayman in this edition ). The report illustrates the bitter fruits borne by decades of armed clashes, human rights abuses and other atrocities in the province. To give just two examples, in the worst affected communities, one in every ten persons suffers from post-traumatic stress disorder and one in three shows symptoms of depression. The report rightly points out that mental health services must urgently be provided in Aceh as a part of the peace-building and post-conflict recovery process.

It is also important to bring justice to victims of the past conflict. Many respondents in the IOM survey confirmed what human rights organisations have reported for years: extrajudicial killings, forced disappearances, torture, and other forms of violence against civilians were common in Aceh.

Some say that after violent conflict like that in Aceh it is better for the victims to forgive and forget, rather than to continue digging deeper into the traumatising events. The Director of the International Center for Transitional Justice in New York, Priscilla Hayner, has studied 21 truth commissions across the world. She has pointed out that in some post-conflict situations this indeed is the best solution.

Would it not be best for Aceh to forget about the past atrocities and move on? Only Acehnese victims have a right to answer this question. However, I would predict that, considering the nature of Aceh’s conflict and the region’s cultural traditions, forgetting is not likely to be their solution.

In Aceh, the feeling that the Indonesian state has done terrible injustices is still very strong. Many Acehnese feel that they have been targeted simply because they are Acehnese. Aceh’s strong Islamic traditions and its customary law traditions – the two are intertwined – also stress the importance of justice processes, whether formal or informal. In Aceh, as in many other Indonesian cultures, there are traditional reconciliation methods which stress that it is important to settle disputes and offences openly at communal meetings. The wrongdoers need to be punished, the victims deserve compensation and an apology, and the community must reconcile in order to move on. There is no tradition of simply forgetting misdemeanours.

Seeking Justice

It is always a difficult and sensitive task to establish transitional justice mechanisms like human rights courts and truth and reconciliation commissions in post-conflict situations. Powerful actors on one or both sides might fear justice processes; others may fear that peace will be endangered if former violent actors are put under pressure. This also holds true for Aceh.

But there is a legal basis for establishing such mechanisms: the Memorandum of Understanding (MoU) that was signed between the Indonesian government and the Free Aceh Movement (GAM) in August 2005 provided that both a human rights court and a truth and reconciliation commission should be established in Aceh. The Law on the Governance of Aceh (LoGA) confirmed these stipulations when it was passed by the national parliament last year. However, very few steps have been taken toward establishing either body. On the contrary, recent legislative changes have erected additional hurdles.

The new Law on the Governance of Aceh has been criticised for watering down the MoU article on the human rights court, because it limited the court’s authority to deal only with human rights violations which occurred after the law was passed in July 2006. Thus, even if such a court is established in Aceh it will not have power to rule on violations that occurred during conflict years. This does not mean, however, that there would not be judicial mechanisms available to address past atrocities. It is the political will that matters.

Since the Suharto regime fell in 1998, Indonesia has passed a body of new human rights legislation. The new laws have dramatically improved the human rights situation in the country, though many problems remain. They also offer alternatives to the Acehnese. According to the new legislation, four permanent human rights courts should be established across the country. These human rights courts are empowered to handle cases of gross human rights violations, such as genocide or crimes against humanity, which have occurred since November 2000. Unfortunately, so far only the permanent human rights court in Makassar has started to function.

Human rights violations in Aceh before 2000 can be handled by a so-called ad hoc human rights court. Such courts have already been used twice in Indonesia’s recent history: to rule on atrocities in East Timor in 1999 and on the Tanjung Priok massacre of 1984. In the end, however, these courts continued the practice of impunity for human rights abusers by releasing almost all those who stood accused.

Indonesian human rights advocates have varying opinions about ad hoc human rights courts. The pessimists say that any future trials are likely to fail, following the East Timor and Tanjung Priok precedents. Some are more optimistic. In August this year, at the time of the second anniversary of the Helsinki peace agreement, the Aceh branch of the Commission for Missing Persons and Victims of Violence, KontraS, urged the government to establish an ad hoc court to handle seven cases of mass killings that involved Indonesian military in Aceh.

In sum, even though it would be judicially complicated, it would be possible to take those responsible for past human rights abuses in Aceh to court. But is there the political will to do so? The initiative to establish an ad hoc human rights court for Aceh is in the hands of Indonesia’s national parliament, the People’s Representative Council or DPR. Some members of the DPR have resisted the peace process in Aceh all along, and it is likely they would try to prevent justice initiatives. Furthermore, political parties in Indonesia will soon start preparing for the 2009 elections, and they are more likely to be interested in the country’s future rather than its past.

Truth and Reconciliation

Truth and reconciliation commissions are more flexible and easier to establish than human rights courts. The aims of such commissions vary from place to place, though generally they set out to investigate past events, create a truthful picture of the pattern of abuses, and to present this in a report after completing their work. Commissions are temporary, lasting from a few months to a few years. The commissioners are not judges, but usually well respected persons with personal and political authority. They are usually appointed by the government, most commonly after an open process that allows the public to nominate candidates.

Reconciliation is a much more difficult task for such commissions. Not all commissions have even made efforts in this direction. Those which have, for example, the commissions in South Africa and Chile, have found it very challenging.

Human rights groups in Aceh, under the coordination of the Aceh Judicial Monitoring Institute (AJMI), have been developing a model for a truth and reconciliation commission. The activists involved stress that a commission in Aceh should focus both on truth and reconciliation. The commission should collect information from across Aceh in order to develop a truthful picture of what happened during the conflict years. Reconciliation should be facilitated in the communities, between people who were involved in different sides of the conflict and still live together in the same villages or towns. In doing this work, the commission would make use of local cultural reconciliatory traditions. It would not, however, deal with serious human rights violations through local reconciliation: information gleaned about such cases should be handed over to the human rights courts for prosecution.

However, one should not idealise the work of truth and reconciliation commissions. It is important to keep in mind that they almost always fall short of the high expectations placed on them. GAM leaders have said they support transitional justice mechanisms, but it remains to be seen if they would be ready to admit responsibility for atrocities their members committed during the conflict. Many perpetrators also left Aceh when large numbers of military and police forces were withdrawn from the province in late 2005. It is unlikely that they would return to Aceh for commission hearings.

It seems likely, then, that a commission could, at best, reconcile between local victims and local perpetrators. But it would also provide victims an opportunity to openly discuss traumatising past events and ease their anxieties and fears.

A Difficult Road

Cautious optimism that a truth and reconciliation commission would soon be established in Aceh was crushed in December 2006 when Indonesia’s Constitutional Court ruled that the law establishing a national commission was unconstitutional. This decision wiped out the legal base for establishing a commission in Aceh. Since then, there has been ongoing debate about whether Aceh could establish its own legal framework. The new deputy governor Muhammad Nazar has said that the Aceh government has asked permission from Jakarta to establish a commission outside the national framework, but has not yet received approval. Human rights organisations in turn have urged the Aceh government to secure a budget funds for the preparation and work of a future commission and human rights court.

Difficulties in establishing transitional justice mechanisms in Aceh reflect broader problems in the human rights field in Indonesia. Over the last decade, the rhetoric on human rights has become very supportive, but the practice lags far behind. In Aceh, however, local human rights activists and many victims are determined that the abuses of the past should not simply be forgotten. If Aceh gets the process right, it could become a role model which reinvigorates human rights protection in the country as a whole.

Leena Avonius (leena.avonius@helsinki.fi) is a postdoctoral researcher at the Renvall Institute, University of Helsinki, Finland.