Addressing past human rights violations in Indonesia has proven to be a complicated and often challenging task. Massive atrocities and large scale human rights violations mostly took place during the 32 year rule of President Suharto and were never properly investigated or prosecuted. After Suharto’s New Order Regime came to an end in 1998 Indonesia’s human rights community was determined to establish legal instruments in order to prevent human rights violations from reoccurring in the future and to help reconcile Indonesian society by bringing the perpetrators of these human rights violations to justice.
The first step taken to realize these goals was the adoption of the Law on the Human Rights Courts (Law number 26/2000) in 2000 which provides a legal basis to hear and rule upon cases of gross human rights violations that have occurred prior to the coming into force of this law. In 2004, the Indonesian Parliament adopted Law number 27/2004 which determined that a Truth and Reconciliation Commission was to be established to investigate human rights violations that occurred prior to the entry of the law on the Human Rights Court.
The Truth and Reconciliation Commission was also authorized to award compensation to victims and victims’ families as well as recommend amnesty to perpetrators of human rights violations. This way, victims and victims’ families have the option to choose an alternative form of mediation as an out -of -court – resolution to settle their cases. Both Laws determine that the Human Rights Courts and the Truth and Reconciliation Commission have the authority to take on cases regarding the most serious human rights violations such as genocide and crimes against humanity. Noteworthy is that the legal definition of genocide and crimes against humanity are in line with those of the Statute of Rome of the International Criminal Court (ICC) even though Indonesia is not a party to the ICC. Unfortunately, the Law on the Truth and Reconciliation Commission showed some severe operational weaknesses which would not enable it to operate in a fair, just and effective manner. For instance, it was determined that a victim of human rights violations can only obtain restitution when the perpetrator has been granted amnesty. As a result, the Constitutional Court declared that the Truth and Reconciliation Commission was unconstitutional and had no legal basis. This was considered a major setback for the victim community as this decision closed off one legal avenue to obtain redress for gross human rights violations. The Human Rights Courts has also demonstrated a reluctance to take on cases mainly due to political will. Although human rights remain difficult to implement in practice, these new Laws and regulations have contributed to a remarkable change in Indonesia’s human rights sphere.
Today, discussions on human rights violations take place in the public sphere whereas 10 years ago this would not have been possible. Manfred Nowak, Special United Nations Rapporteur on Torture, Cruel and Inhuman Treatment has stated that Indonesia has made progress in improving human rights, especially with regard to combating torture and domestic violence against women. During the Parliamentary and Presidential elections that took place in April and July of this year, many NGO’s and human rights activists have called on voters not to vote for candidates who are being accused of committing human rights violations. Election results did indeed prove that many Indonesians are no longer willing to vote for candidates with a record of human rights violations.
These significant changes can be considered a huge leap forward in bringing justice to victims of human rights violations and ending a culture of impunity. Enforcing human rights protection in daily life will continue to be a struggle but the lack of results can never be a reason to give up this struggle for justice.
A selection of relevant publications from the Peace Palace Library collection
HOSEN, N., Human rights, politics and corruption in Indonesia: a critical reflection on the post Soeharto era, Dordrecht : Republic of Letters (ROL) , 2010
CAMMACK, M., The Indonesian Human Rights Court in New Courts in Asia, London : Routledge, 2010, p.178-205
ALIHUSAIN, C., Mensenrechteninstellingen in Indonesië : een rechtsvergelĳking tussen het Mensenrechtenhof en de Waarheids- en Verzoeningscommissie, Leiden University : VVI (Master's Thesis), 2009