HRWG: Indonesia’s NGO Coalition for Human Rights International Advocacy
International NGO Forum on Indonesian Development
Anti Terrorism Politics in Indonesia: the continuing politics of violence and impunity
Background paper prepared,
For 60th session of UN Commission for Human Rights ,
March 15 – 23 April 2004, Geneva
Indonesian NGO Coalition for
International Human Rights Advocacy
Email : email@example.com
Anti Terrorism Politics in Indonesia: the continuing politics of violence and impunity
1. Military Rule strikes back
The Bali Bombing on October 12, 2002, which resulted in hundreds of victims from various countries, has shocking the international community. Ironically, the investigation of bombing cases is used to strengthen the military’s position using the issue of “terrorism”, as indicated by the birth of various new policies such as the Draft Law on Terrorism, Draft Law on the Indonesian National Military (TNI) and the Draft Law on Intelligence Service. Immedeatly after the J.W. Marriot hotel, Jakarta bombing last august 2003, some military and civilian high ranking official has also announced publicly the need to have an Internal Security Act legislation in combating terrorism in Indonesia.
Rather than focusing on the questions of inability of Police and intelligent apparatus, President Megawati Sukarnoputri’s government has sought to focus on “inadequacies” in the recently passed anti-terrorist law, which it claims fails to give the security forces enough power to take “preemptive” action against suspects. In apologising to the victims of the bombing, the chief of Indonesia’s State Intelligence Body (BIN), Hendropriyono, was quoted in the August 9 Jakarta Post assaying that BIN wanted the power to act, not just to give early warning.
The fact that the military has never been held accountable for the violence they have committed for dozens of years will only strengthen their dominance in the life of the civil community. Such dominance is realized through laws providing unlimited power to TNI to prepare and make significant decisions in the country. The most recent example is the impact of bombing cases in Indonesia.
The “legalization of violence” should not be interpreted as the consolidation of TNI’s role for the purpose of maintaining the national security, because the history of past human rights abuses has noted TNI as one of the main perpetrators of violence in Indonesia. Threat against civil community is committed by TNI as well as state-sponsored paramilitary/militias groups and armed separatist group of the Free Aceh Movement(GAM) . Various military operations conducted by TNI for more than 30 years in Aceh, East Timor and Papua have evidently caused victims among the civil community. To this day, TNI has never been held accountable for the decisions they made in the military operations. During the Internal armed conflict in Aceh, North Sumatra evidence has shown that political violence is alsoo committed by the armed-oppositional group- GAM , they also seized IDs and intimidated civilians in their efforts to get rid of TNI and Police’s quest. Under such situation, civilians in Aceh are the non-combatants trapped between the two conflicting parties, while protection is the least to find. Bachtiar from Bireun, representing local people said “We are ensnared in a dilemma. At nights GAM comes and intimidates us under guns not to obey TNI rules. A single smile to TNI members can mean no sunshine the day after (=death), but if we obey GAM, we will surely suffer also.” About local fear, Bireun police chief Police Commander Laksawidiana briefly commented”It is all the risk; they have to take side with NKRI or GAM.” It is evident that the security apparatuses provide no protection to local people. The above statement can also be interpreted as threat to them.
This year, the Minister of Defense and Security asked Commission I of the People’s Legislative Assembly (DPR) to support the increase of budget allocated for the sub-sector of defense in the fiscal year of 2003 from Rp 16.162 trillion – as planned in the Draft State Revenues and Expenditures Budget (RAPBN) for the fiscal year of 2003 – to Rp 19.487 trillion. The addition of Rp 3.324 trillion consists of routine expenditures budget of Rp 2.62 trillion and development expenditures budget of Rp 704.94 billion.
Besides harmful to fundamental public interests (health, education, etc), the increase of military budget also serves as additional ‘fuel’ for violence committed by the military in Aceh and Papua. The conflicts in Aceh and Papua are used as the reason to add military troops and logistics to such areas. Therefore, efforts to create peace and stop violence in Aceh are important agenda to settle the conflicts in Aceh, and to prevent the violence committed by the military from getting worse.
A report of Freeport-McMoran Copper and Gold Inc., the holding company of Freeport, stated that in 2002 Freeport donated US$ 5,6 million (around Rp 50 billion) to the Indonesian National Military (TNI). Such donation includes the costs for the soldiers’ accommodation, fuel, trip and repair of military vehicles. In addition to that, US$ 400 thousand (around Rp 3,5 billion) are used to construct “supporting infrastructures”. Freeport also admitted to have spent US$ 4,7 million (around Rp 41 billion) in 2001 to pay 2,300 security personnel of the Indonesian government.
For the past year, the military is getting more and more repressive in Aceh and Papua. In the year 2002, there were at least 243 cases of arbitrary detention with 548 victims, and 301 cases of torture with 1066 victims. While in Papua, one of the local public figures Theys Hiyo Eluay was killed and the military was involved in this case, however, efforts to settle this case have been hampered. Still in 2002, 5 Papuan activists conducting a peaceful demonstration were subject to arbitrary detention by the Nabire Police.
The reopening of Indonesian-US and Australia military cooperation that was previously frozen due to human rights abuses in East Timor will also obstruct the efforts to stop military violence in Aceh, Papua and other regions in Indonesia.
Meanwhile, in areas of ethnic-related conflicts such as Maluku, Poso and Sampit, the presence and domination of militias is also used as a reason to apply militaristic policies, without any firm effort to eradicate such militias. In such conflict areas, it seems that the military assumes the function of maintaining security, while in practice they are involved in the strengthening of such militias.
2. The failure of National Remedy : Precedence of Ad-hoc Human Rights Courts on East Timor
As one of the mechanism of state accountability for human rights abuses, Human Rights Court in Indonesia was finally realized upon the issuance of Presidential Decree No. 96 year 2001. Such Decree orders the establishment of ad hoc human rights court to settle Tanjung Priok case and the case of East Timor After the Referendum.
The establishment of this ad hoc human rights court has at least two important roles in the context of promoting and protecting human rights in Indonesia. First, it opens opportunities for the settlement of past human rights abuses as a stepping stone towards the reform of legal system in Indonesia; second, it serves as preliminary parameter to show how serious the Indonesian government will protect and promote human rights.
Ever since its establishment process, this court has a weakness because it is only ordered to hear East Timor’s case which occurred after the referendum. This is very minimum, because human rights abuses occurring in East Timor prior to the referendum were just as bad. This initial process also includes the non-transparent recruitment of prospective Judges and Prosecutors, and the appointment of some judges with bad reputation in handling human rights cases.
Whereas in the legal proceedings, there are some significant obstructions namely on
Indictment, witnesses and Court decisions. Indictment which is limited to technical mistake in the implementation of duty, it does not include evidences which can prove chain of command and the wide spread and systematic element of the gross human rights violations. Witnesses presented in this court are witnesses of the perpetrators, while there is only a small number of witnesses of the victims with poor quality, making it highly impossible to achieve justice for victims of human rights abuses. The lack of protection for the witnesses of the victims and the presence of other technical problems to obtain witnesses such as: location of the court, language barrier and other problems should have been anticipated since the beginning. Court decisions, out of 9 case dossiers only 3 persons are sentenced, however, the punishment given is lower than the minimum sentence stipulated, thus in contrary to the logic of law. Limitation and difficulty in understanding and applying the provision of Law No. 26 year 2000, eventually lead to a short cut in settling this case.
The ad hoc human rights court for East Timor cases clearly indicates that the court apparatuses such as prosecutors and judges do not have the ability to carry out their functions properly. This failure caused by the weaknesses of the Law No. 26 / 2000, the judiciary facilities and infrastructures, and also the pressure from external political situation in Indonesia.
Public Prosecutors cannot act impartially; they are trapped in quasi-nationalism, as if human rights enforcement is in contrary to national interests. In fact, this ad hoc court for East Timor cases is an important precedent for the establishment and quality of permanent human rights court in the future, considering that in the near future, ad hoc human rights court for Tanjung Priok case will be established.
Finally, the court that should function as a representative of the community in upholding justice only serves to defend the crimes (perpetrators). In this case, the court that should serve as a means to provide justice for the victims and the community becomes a mechanism prolonging impunity.
The failure of Indonesian government in providing human rights court for East Timor cases is not only a bad experience for the effort to enforce human rights in Indonesia, but is also the failure of the international community in settling an international crime.
3. Peace Process and continuing violences in the Aceh, Poso, Malucca and West Papua:
The strengthening military position affects the continuity of violence in conflict areas. The government’s action of assigning the military and police forces to conflict areas without any compherensive and integrated solution only worsens the situation. What makes things even worse, the effort chosen to overcome social conflicts is the use of repressive approach. When repressive approach leads to escalation of violence, the next solution is the increase of command status, among other things by forming new Regional Military Command (KODAM) in Aceh and Maluku.
Military and police apparatuses assigned to conflict areas are also involved in various business practices: illegal logging, occupation of the community’s land and houses or public facilities, escorting etc. In Maluku, for example, when land transportation is closed due to security reasons, people turned to sea transportation facilities such as speedboats and motorboats. The owners of sea transportation facilities must give escorting fees to the military and police apparatuses “escorting” such transportation facilities. During the segregation based on religions/ethnic groups, security apparatuses providing escorting services on the land also received money namely between Rp500,000 and Rp700,000.
IDP’s conditions are similar to other cases. In Aceh for instance, after the Peace Agreement has been signed, there are still 13,323 Acehnese living in refugee camps without receiving any serious attention from the government. They have no choice but to live in the camps because in general, their houses have been burnt down by the disputing parties (Military/Police, Free Aceh Movement or Unknown Actors). The refugees live in poor sanitation and health conditions, with lack of food and education for the children, and very uninhabitable camp conditions.
Similar conditions also occur in Poso Regency, especially after the signing of the 1st Malino Declaration, in which there are still 15,600 refugees spread in various camps in Poso Regency. Some refugees stay with their family in the cities of Palu, Manado and Makassar.
The largest number of refugees can be found in Maluku and North Maluku, namely around 320,000. All those refugees are not only spread in Maluku and North Maluku provinces, but also in some neighboring provinces such as North Sulawesi, South Sulawesi and Southeast Sulawesi. The conditions of the camps are similar to those in other conflict areas. This condition is made worse by the residential development program carried out by the military forces, despite the fact that the community prefer to build their houses by themselves.
Many aids given to the refugees are being corrupted, hence worsening the condition of refugees in the two provinces. Relocation of refugees has also faced obstructions, because houses left by the refugees were later occupied by other people
The rivalry between branches of armed forces also has an influence on the effort of perpetuating a conflict. Especially those related to business security. As a case sample, when land transportation routes were closed for security reasons, there’re many people who turned to the use of sea transportation such as speedboats and motorboats. In the operation of the sea transportation, the transportation owner must expend an escorting fee on Marines going along with the transportation.
The same goes for terrestrial routes. When segregation between areas having different communities occurred, to pass by an escorting fee must be paid to the security apparatus who would go along with the transportation. This condition occurred, for instance, in Poso and Maluku. The escorting fee varied between Rp. 500,000 and Rp. 700,000.
On the other side, when there’s an initiative from the community to settle a conflict communally, for instance, a moral movement made by Baku Bae Maluku, this effort had never been recognized, even had always been weakened by the apparatus. Also, Human Rights workers not infrequently experienced intimidation, because there’s an anxiety about the efforts made by the activists able to disturb their business; the same goes for what occurred in Kabupaten Poso, various community discussions facilitated by the LPS-HAM not infrequently got pressure and provocation from the on-duty TNI/Polri (Indonesian National Armed Forces/Indonesian Police) in that area.
Intimidation and Terror against Human Rights Defenders
Besides a large number of cases of intimidation and terror against society in general, more specifically a number of cases of intimidation, terror, abduction, torture and even summary killing against a number of Human Rights Defenders, as well as the imposition of DPO status upon a number of Human rights defenders, also occurred. Even in Aceh nearly 100 violence against Human right defenders cases during 1999 – 2002 are recorded. Although the Peace agreement for Aceh has been signed, and both parties agreed to open civil expression rooms, but apparently the TNI/Polri (Indonesian National Armed Forces/Indonesian Police) still made restraints on the room of democracy. This is indicated from several cases occurring during the period of December 2002 – January 2003.
Intimidation and terror against human rights defenders and restraints on civil expression rooms also occurred in Kabupaten Poso. After the signing of the Malino I Declaration for Poso Peace, during 2002 a number of occurrences indicating that restraints on the people’s expression room in voicing their rights, including to various disparities they experienced, have occurred is recorded. While if it is related to the implementation of points of the Malino I Declaration, after the demonstration of the community of Kecamatan Poso Pesisir who demanded the government’s transparency in a number of reductions of assistance funds for victims of the Poso Conflict, a number of Human Rights activists participating in accompanying victims also experienced extraordinary terror and intimidation. That intimidation not only came from the TNI/Polri (National Indonesian Armed Forces/Indonesian Police), but also from the employees of the Office of the Regent of Kabupaten Poso.
In Kecamatan Malei-Tojo, Human Rights activists working in this region also experienced acts of torture from the BRIMOB (Mobile Brigade) apparatus as a result of their protests against the BRIMOB unit’s arbitrary action against communities in this region. The same goes for the arrest of the Coordinator of the GKST Tentena Crisis Center.
In Papua, during 2002, 4 occurrences of intimidation and terror against human rights defenders are recorded. Such occurrences are, among others, terror by the masked man at night (November 02), destruction of the Elsham Papua office (October 02), forcedly summons of activists (December 02) and the shooting of the wife of one of the activists there (December 02).
Chronology of Anti Terrorism politics in Indonesia
and the respons of Civil Society
On 6 March 2003, the Indonesian Parliament (DPR) enacted Perpu (Government Regulation in Lieu of a law) No. 1/2002 on the Eradication of Criminal Act and Perpu No. 2/2002 on the Eradication of Terror Act on the Bali Bombing 12 October 2002 as laws. The enactment was enclosed with a note that the Parliament was given an opportunity to amend both laws on its next session. These laws confirmed BIN (National Intelligence Agency) involvement in the jurisdiction that would put civil liberty at risk.
1. Perpu No. 1/2002 on the Eradication Of Terrorism and No. 2/2002 on the Eradication of Terror Act on the Bali Bombing 12 October 2002 (hereinafter referred to as Perpu) were passed as a reaction to Bali Bombing 12 October 2002 that killed more than 180 people. Government’s reason to the stipulation was to avoid legal vacuity to preventing and prosecuting the perpetrators.
2. President Megawati, then, passed Presidential Decrees (Inpres) No. 4/2002 and No. 5/2002 as the generated operational form of Perpu. Inpres No. 4/2002 stipulates that the Coordinating Minister for Social, Politics and Security Affairs has the authority to formulate policy on terrorism. Inpres No. 5/2002 provides for BIN’s roles as the coordinator for intelligence’s activities, subordinating a number of related bodies (BIA, POLRI, Attorney General Department’s Intelligence and Justice Department’s intelligence).
3. Subsequently, the government shall establish Anti-terrorism Desk comprising Ministries of Defense, Justice, and Foreign Affairs, and TNI/POLRI with each specific duties, all report to the Coordinating Minister for Politics and Security. This desk will consist of four sections namely: 1) intelligence section for consent that has to work based on the prevailing the law, 2) International cooperation section that maintains international relations and observes other countries’ progress, functions to monitor government’s compliance to the obligations delegated by the UN Security Council’s resolutions in relation to terrorism, 3) Information and public relation section – the government needs to cooperate with civil society (NGOs) top prevent and combat terrorism; 4) Evaluation team. It should be noted that the anti-terrorism desk has the authority to maintain coordination only, not to execute.
The establishment, objectives and efforts to be done by the Coalition For Civil Safety
4. Since Perpu No. 1/2002 on the Eradication Of Terrorism was passed out, IMPARSIAL The Indonesian Human Rights Watch has been intensively doing critical review on the content and interpretation of the regulation. Some related expertise had been involved in a Focus Group Discussion (FGD) to review the content from 19 to 22 November 2002 in Jakarta. The discussion ended with a conclusion that the regulation has no balance between civil and security so that it possibly returns to the New Order’s format of emergency politics that had taken advantage of people’s mandate and violated the principle of a legal state in addition to imbalance proportion between liberty and security.
5. A number of NGOs and activists previously agreed to establish a coalition named Coalition for the Civil Safety on 7 and 12 November 2002 in responding to the enactment of Perpu No. 1/2002 on the eradication of terrorism and Perpu NO. 2/2002 on the eradication of terrorism on Bali Bombing 12 October 2003. This coalition agreed to appoint IMPARSIAL The Indonesian Human Rights Watch as the coordinator.
6. The coalition aims at defending civil liberties and democracy in Indonesia from any threat that comes from global repression that follows the world politics tendency after the terrorist attack of 11 September in New York, USA. In particular, the Coalition aims at gaining recognition and security for non-derogable civil rights of citizens in the legal product; and to encourage and monitor compliance and due process of law.
7. All members of coalition condemned the terrorist attack in New York on 11 September 2001, and Bali Bombing 12 October 2002. The Coalition expressed its deepest condolence to all victims – the innocent civilians and their families. The Coalition believes that there are no bases to justify any action of terror. Political ideology or injustice never justifies terrorism. The Coalition supports and advises that legal actions are taken to investigate the case and prosecute the perpetrators and put proper sanctions and punishment if they are proven guilty.
8. The Coalition invite the participation of all social elements in Indonesia, both individuals and organizations, men and women who share common interests and perceptions, to unite and cooperate. The Coalition welcomes cooperation with similar organizations, that were established by foreign people and express solidarity to those who were dealing with discrimination or government’s repression for caring others. The Coalition extends help to anyone on earth who are victims of prejudice and racialism.
9. Coalition for Civilian’s Safety on 14 November 2002 passed The First Komunike, which basically declared that Perpu No. 1/2002 does not admit and insure non-derogable rights of people, particularly the right for equality before the law. Further more, the Perpu exposed the executive of the intelligence to intervention on law enforcement process and judicial system in the name of national security. The elaborate and resilient definition of terrorism in the Perpu is also hazardous for it enables arbitrary interpretation. The Coalition urged the government and the Parliament to amend the KUHP (Criminal Codes) and KUHAP (Criminal Code of Procedure) to adopt terrorism as a banned crime and subject to sanction under Indonesian criminal law. The Coalition also urged the government of Indonesia to ratify UN 12 conventions and protocols passed out to combating terrorism.
10. The Coalition had also conducted a hearing with almost all fractions of the parliament during the opening of the session on 6 January 2002. The Parliament (DPR) has included the agenda for the discussion on the Draft Law on the Prevention of Terrorism (further referred to as RUU) with two other RUU (The RUU on the validation or Perpu No. 2/2002 non the Eradication of Terrorism on the Bali Bombing of 12 October 2002, The RUU for the stipulation of Perpu No. 2/2002 on the imposition of Perpu No. 1/2002 on the Eradication Of Terrorism on the Bali Bombing of 12 October 2002).
11. The combat against terrorism on the Bali Bombing 12 October 2002. The discussion on this Draft was quite short. The RUU should be ready as a law at the end of the session on, which is 7 March 2003.
12. Some fractions of the Parliament (DPR) have openly declared their willingness to cooperate and openness to inputs and criticisms addressed to the RUU. They are looking forward to having an alternative, readily used RUU that is going to be used as a comparison to the current one.
13. Special Committee was formed by the DPR on 20 January 2003 to discuss the Draft of Law on the Eradication of Terrorism. This Committee comprises representatives of each fraction.
14. In the progress, DPR has conducted a Public Hearing with related institutions such as religious organizations, TNI, POLRI, BIN, Komnas HAM and IKADIN, including the Coalition for Civil Safety
15. During the Public Hearing, BIN (State Intelligence) as the national coordinator of intelligence community aspired additional authority to arrest, detained – including abduct – as a pre-emptive measure against terrorism. The Head of State Intelligence Hendropriyono also asserted that the Parliament as the legislative body shares common interests in drafting the four Laws on Terrorism, Freedom for Information, Intelligence and State’s Confidentiality.
16. BIN aspiration was previously prepared as it was provided for in the Draft of Law on Intelligence that was to be proposed to the Parliament as Government’s proposed law. The Special Committee turned this down.
17. In reaction, the Coalition for Civil Safety issued its Second Komunike on 28 February 2003 that in the core disclosed BIN’s argument to involve deeper in judicial activities such as to execute arrest and investigation. It was obvious that BIN is interested in expanding its authority. The Coalition, therefore, insisted that the DPR in one voice resist BIN’s expansion into judicial areas because it violates the principles of democracy and mixes up intelligence’s duties to police’s. Such authority, when held by the Intelligence, is vulnerable to abuse by the reign in power to hit its political opponents.
State Apparatuses’ Use of Perpu in Intimidating Civil Movements
18. The Coalition also has evidence of the abuse of Perpu by state apparatuses in pressuring civil freedom in some regions. The evidence was a result of an observation by the Coalition members.
19. In West Java, some farmers unions such as Farmers Union of Pasundan (SPP) and Farmers Association of Cianjur (PPC) that were trying to reclaim their lands in a dispute with state’s corporation Perhutani and Plantation were accused of being terrorists and sanctioned based on prevailing Perpu. The cases took place in Garut and Cianjur, as told by Parsaroan Sirait, Campaign Division Presidium of Agriculture Reform Consortium (KPA). According to Parsaroan, the terrorist phenomenon and the enactment of Perpu has been made the bases to threaten farmers movement for their rights.
20. WALHI quoted that in Porsea, North Sumatera, 16 people were intimidated and terrorized by the Police Mobile Unit and the Intelligence. The Porsea case emerged in reaction to the re-opening of pulp industry P.T. Toba Pulp Lestari (the former P.T. Inti Indorayon). The factory was closed during Habibie’s government because of serious pollution it had caused to its surrounding. The reopening of the factory triggered protests by local community who were most affected.
21. The regional government of Blitar, East Java conducted facilitation and socialization of terrorism issue to 7 of 11 organizations that were invited. The seven organizations were in conflicts with local commercial plantation, PT Perhutani and private company. Intelligence declared that the farmers movement were supported by particular, irresponsible political party. Farmers movement have always been linked to Communism and therefore are considered serious threat to state’s stability.
The Coalition’s Stance on the endorsement of Perpu into Law.
22. Despite of the evidence submitted to the DPR, the Perpu was in fact endorsed into law on 6 March 2003. The DPR should have had considered carefully whether to resists of accept the Perpu pursuant to article 22 paragraphs (2) and (3) of the 1945 Constitution.
23. The Coalition considered the government and DPR were actually aware of the loopholes of the Perpu. On the endorsement of the Perpu, the government announced that the amendment draft of law would be included. It proved that DPR never accommodates public responses and reactions. The Coalition did not accommodate public responses and reactions. The Coalition criticized the stipulation of Perpu on the eradication of Terrorism which was followed by the proposition of draft amendment of law on the eradication of terrorism because it showed that the government and DPR have no clear concept of law and regulation concerning terrorism.
24. The Coalition also monitored the amendment process of Law on the Eradication of Terrorism that is going to be discussed by the DPR on its next session in April-May 2003. On top of it, the Coalition will also monitor the discussion on other draft of laws on Intelligence, State’s Confidentiality, Freedom for Information and the most recent one is the draft law on the Indonesian Arm Forces.
25. Until now the promised amendment process of Law on the Eradication of Terrorism is not yet started. The J.W. Marriot bombing has been utilised by the “hrad liners” of Indonesian military and intelligent community as a pretext to adopt draconians law such as anti-subversion law and internal security acts in Singapore and Malyasia.
27. The enacted of Government Regulation in Lieu of a law No. 1/2002 on the Eradication of Criminal Act and Perpu No. 2/2002 on the Eradication of Terror Act on the Bali Bombing 12 October 2002 as laws will make Indonesia return to the form of New Era (Orde Baru) which is authoritarian and anti-critique.
28. Besides that, the security of civil society (civil liberties) is under the threat by the influence of intelligent non-judicial into law system. The involvement of intelligent non-judicial will threat the civil-political rights, which is include the clump of non-derogible rights especially rights to be treated equal in front of the law.