Exploring readiness for ad hoc human rights court

Agung Yudhawiranata, Institute for Policy Research and Advocacy (ELSAM), Jakarta

The ad hoc human rights court is now official. Presidential decree no.96/2001 mandates the establishment of the court to try charges of human rights violations in the Tanjung Priok shootings and post-referendum East Timor cases. The establishment of the ad hoc court reinforces the implementation of Act No. 26/2000 (the initial basis for the court's
creation).

The ad hoc court has at least two essential implications for the promotion and protection of human rights in Indonesia. First, we now have an opportunity to try past human rights violations -- a crucial stepping stone in reforming the legal system. Second, the court, which will first address the human rights violations in East Timor that followed the self determination referendum in September 1999, will be the first plank of the government's platform on the protection and promotion of human rights.

There are at least four issues that deserve careful consideration in terms of their legal and political impacts:
First is the possibility that evidence of gross violations of human rights may have been lost or misplaced, given the foot-dragging in the establishment of the ad hoc court. The results of investigations by the independent Commission of Inquiry into Human Rights Violations in East Timor were delivered to the Attorney General last year.

Moreover, two presidential decrees were needed to establish the ad hoc court. These were issued last year: Decree no. 31 on the establishment of a human rights court, to be located in the district courts of Central Jakarta, Surabaya, Medan and Makassar, and decree no. 96/2001. The latter replaced decree no. 53 as the government was of the view that it gave the ad hoc court in the Central Jakarta district court too broad a jurisdiction regarding cases in East Timor (after the 1999 referendum) and Tanjung Priok.

In relation to East Timor, the Court's jurisdiction was restricted to incidents in the three areas of Liquica, Dili and Suai, and limited to cases occurring between April 1999 and September 1999. These restrictions have greatly limited the number of cases and perpetrators subject to prosecution.

The second issue is the selection of judges. Although judges have already been appointed, on the basis of Presidential Decree no.6/2002, their recruitment was not conducted in a transparent way, and provided no room for public participation.

The criteria for candidates -- consisting of professional and non-professional judges and academics -- remain unclear, and their backgrounds were not considered in the assessment process. Most of the candidates, particularly career judges, lack sufficient track-records in dealing with human rights cases, while a few even have questionable records in such cases.
There is also a lack of balance in the composition of the non career judges selected; among those chosen are four judges from the one university, namely, the Syarif Hidayatullah Institute of Islamic Studies in Jakarta.

There has not been an adequate public explanation of this matter, only an informal statement from the Supreme Court to the effect that the team's composition reflected the possible need for the tribunal to provide interpretations of Islamic syariah law. The selection process was conducted in a manner that could be considered below standard. The fit and proper test for candidates by the legislature was inadequate and the required presidential decree was delayed by a month for no apparent reason.

The non career judges are not known for their experience in either litigation or due legal process, and view the issue of human rights purely as an academic exercise. Meanwhile, training for the judges has not been going according to plan. A proposal to invite experts from Sweden and Norway failed to eventuate. The third key issue relating to the human rights court is the recruitment of prosecutors. The selection of candidates for these positions has suffered similar shortcomings to the recruitment of judges.

It was quite some time before the names of the prosecutors were disclosed to the public. The excuse given was that the copy of the presidential decree on the appointment of the court's prosecutors was delivered late to the Attorney General. The dossiers on the East Timor and Tanjung Priok cases, prepared by the Attorney General, do not even touch upon the issue of command responsibility ie. the liability of a superior for acts allegedly carried out by a person under his command.

Moreover, of the 23 suspects initially proposed for inclusion in the case files, only 18 were ultimately included, in 12 case files. One of these people is known to have died, and three others have disappeared. This sets a dangerous precedent and is an indication of the poor level of planning that went into the preparation of the dossiers.

There has been no official publicity given to the cases, thereby limiting the degree of public input.
The fourth issue relates to the preparation of necessary rules and regulations. First, Law no. 26 on the human rights court, now being used as the guideline for court procedures, does not specifically cover all issues needed to guarantee a fair trial.

The Law excludes the possibility of utilizing any legal process other than the Criminal Code. It also suffers from a number of other weaknesses. One is its failure to specify extradition arrangements needed to bring witnesses from East Timor, an important point since trials for criminal cases in Indonesia require a direct witness.The role of the Ministry of Foreign Affairs will therefore be crucial, yet it had no involvement in the establishment of the court.

Meanwhile, the Criminal Code, as an alternative basis for the ad hoc court, also has some basic weaknesses in terms of its capacity to deal with gross violations of human rights. The Code lacks international standards on admissible evidence, testimonies and the visum et repertum, among others.

Several important regulations vital to the successful operation of the court do not yet exist. These include those on witness protection and victims' compensation. These legal instruments are essential to protect both victims and military personnel who act as witnesses, especially those who have to testify against their superiors. These witnesses will need legal protection to ensure their physical and professional security. The absence of regulations on compensation may discourage victims from becoming actively involved in the trial process, especially those who act as witnesses. The absence of these supporting legal instruments and mechanisms will mean an increased reliance on the capacities and abilities of the court's judges.

It is therefore understandable why some are saying the human rights court is a waste of money, time, and energy instead of a stepping stone toward the enhanced protection of people's rights here. There will be significant political, legal, and diplomatic consequences should the court fail to function as planned.

If the United Nations Security Council could prove that the ad hoc tribunal was unable or unwilling to carry out its responsibilities, international interference could occur through the creation of an International Human Rights Court on East Timor, a possibility which so far has been considered a slap in the nation's face. In other words, however unlikely it may be, there is still a chance of justice for the victims of human rights violations here, whatever the price.

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