NO TRUTH AND RECONCILIATION FOR INDONESIA

C O N F I D E N T I A L SECTION 01 OF 03 JAKARTA 013616

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/29/2016
TAGS: PHUM KJUS PGOV ID
SUBJECT: NO TRUTH AND RECONCILIATION FOR INDONESIA

REF: (A) JAKARTA 534 (2005) (B) JAKARTA 13603

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Classified By: Political Officer Stanley J. Harsha, Reason 1.4 (d)


1. (SBU) Summary: On December 8, the Constitutional Court
(CC) scrapped Indonesia,s Truth and Reconciliation
Commission, arguing that it was unconstitutional. There are
mixed views here about the importance of this decision and
the likely impact on the prosecution of past human rights
abuses. Lack of accountability for past human rights abuses
by Indonesian military (TNI) remains a blot on Indonesia,s
steadily improving human rights record. Since 2000, there
have been three vehicles for dealing with specific internal
cases of gross human rights abuses: the human rights court
for post-2000 violations; ad hoc special courts established
by Parliament (DPR) for pre-2000 cases; and, the Truth and
Reconciliation Commission. The Commission, which was
established in 2004 as a compromise human rights vehicle, has
been criticized by activists and victims as too weak, since
it was to focus solely on public testimony in return for
immunity from prosecution and possible compensation for
victims, without prosecution of violators. Its recent demise
at the hands of the CC cuts off one avenue for victims of
Suharto,s 32 years of political assassinations, massacres
and forced disappearances, but leaves the ad hoc court. The
likelihood of any meaningful activity in this forum, however,
is slight, so the demise of the flawed but potentially useful
commission is a setback for human rights in Indonesia. This
Commission was to deal with internal human rights cases only,
not violations by the TNI in East Timor which has its own
mechanism. End summary.


2. (U) The Constitutional Court's December 8 ruling that
Indonesia's Truth and Reconciliation Commission (KKR) is
unconstitutional killed a flawed but potentially useful venue
for victims of pre-2000 human rights abuses. The KKR Act
authorized the KKR to investigate, summon suspected
perpetrators and explain gross human rights violations. The
Act also gave KKR the power to recommend amnesty for
perpetrators and propose compensation for victims to the
President. (See reftel A). The KKR is authorized to pursue
any case designated by the DPR as being a gross human rights
violation which occurred before the year 2000, the year the
Human Rights Court was established as an alternative means of
settling cases of human rights violations. Because the KKR
could be used as an alternative to criminal prosecution, many
activists have opposed the Act as helping violators to avoid
justice. One article that was objectionable to human rights
activists would have authorized the KKR to recommend amnesty
to confessed perpetrators over the objections of victims.
Another contested article stipulated that once amnesty has
been granted, the victim may not pursue an investigation by
the National Human Rights Commission (Komnas HAM).

Ruling Confuses Human Rights Lawyers
--------------


3. (U) The CC's decision surprised the human rights
community, which had only asked the Court to rule on several
articles in the Act, and did not expect the entire KKR Act to
be ruled unconstitutional. Human rights groups had asked the
court to consider whether victims should be compensated
before perpetrators are granted amnesty and whether resolved
cases could still be re-tried in criminal courts. Instead,
the CC went beyond the scope of the appeal by ruling
eight-to-one that the entire KKR Act is unconstitutional. In
an unclear ruling that left human rights lawyers confused,
the judges said it is "legally illogical for requests for
compensation, restitution, rehabilitation and amnesty" to be
filed before an investigation determines that gross human
rights violations occurred, according to media reports. The
ruling also questioned KKR power to recommend immunity from
prosecution. The ruling stated that the KKR process did not
encourage people to settle cases through the commission.

Justices Influenced by Ideology
--------------


4. (C) Komnas HAM Chief Abdul Hakim Garuda Nusantara told us
the decision shows that there "is no common understanding"
among the President, the Attorney General, Ministry of
Justice, the Foreign Ministry and the CC on how to proceed
with human rights cases. He noted that the decision might be
explained by either inexperience or ideological bias by some
of the justices, noting that two of the judges are retired
military judges with conservative anti-communist views.
These justices might have wanted to head off cases raised by
victims of the 1965 pogrom against suspected communists.


5. (SBU) The GOI gave a brief response on the KKR decision.

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Presidential spokesman Andi Mallarangeng said the government
would study the ruling and its implications, the media
reported. State Secretary Yusril Mahendra, whose
conservative views do not reflect President Yudhoyono's
professed desire to resolve human rights cases, told the
media that victims should "move forward," using district
courts and ad hoc human rights tribunals, but added that it
is difficult to resolve these cases through the human right
courts because "the witnesses and suspects have generally all
died." Despite President Yudhoyono,s verbal support for the
KKR mechanism, human rights groups often question his resolve
in seeing the KKR activated, noting that two years had passed
since the KKR legislation was enacted and that President
Yudhoyono had not selected the KKR's 21 members from a list
of 42 names submitted to him last August. This lack of
progress in forming the KKR may also have influenced the CC
decision.

Parliament Wants to Clip Court's Wings
--------------


6. (U) Indonesian Democratic Party of Struggle (PDI-P) --
whose members were victims of the 1997-98 kidnappings and
disappearances of party members -- responded to the CC
decision with a December 12 petition to the DPR calling for
the CC's powers to be curtailed, according to media reports.
The petitioners said the CC's powers should be limited to
judicial review and should not be allowed to annul contested
laws or their articles, but rather return them to the DPR to
be revised to conform with the Constitution. House
legislation body deputy chairman Bomer Pasaribu told the
media that a bill is being drafted to substantially reduce
the powers of the CC. The former chair of the special
committee that drafted the KKR law, PDI-P lawmaker Sidharto
Danusubroto, told the media that the "President should issue
a government regulation in lieu of law or a presidential
instruction to rehabilitate victims of human rights abuses
and their families while the House is creating a new (KKR)
law."


7. (C) There is a long backlog of pre-2000 human rights
cases which the KKR was supposed to address. Komnas HAM has
declared many of these cases to be gross violations of human
rights. However, the AGO has refused to prosecute the cases,
in some instances sending the cases back to Komnas HAM for
procedural reasons, while at other times stating that the DPR
must first declare the incidents as gross human rights
violations before they can be prosecuted. The DPR has
refused to act in many cases, and in 2002 it declared the
1997-98 Trisakti and Semanggi massacres not to be gross human
rights violations and has not revisited this conclusion
despite lobbying by human rights and victims, groups.
Regarding this merry-go-round, Hakim told us Komnas HAM has
finished its task by investigating the cases and finding
gross human rights violations. "Our task and mandate is
limited to inquiry and giving conclusions to the Attorney
General. The next task is up to the Attorney General. If he
agrees that these are gross human rights violations, he
should investigate." Hakim believes the AGO could
investigate pre-2000 cases further based on Komnas HAM
findings, while the AGO maintains that a political decision
is needed by the DPR to declare the cases to be gross human
rights violations before that office can act. Human rights
lawyers agree that the law is unclear on this point.


8. (U) The major unresolved cases of gross violations of
human rights proposed for the KKR included: the 1965
massacres; the 1984 Tanjung Priok massacre; the 1989
Talungsari, Lampung massacre; the 1997-98 Trisakti, Semanggi
I and Semanggi II massacres; the May 1998 riot/massacres; and
the 1997-98 forced disappearances.

President Has Power to Bring Justice
--------------


9. (C) Hakim and other human rights defenders agree that
despite AGO and DPR inaction, President Yudhoyono has the
power to instigate action if he has the political will. "If
SBY is brave, this is easy," said Usman Hamid, coordinator of
the Commission for Missing Persons and Victims of Violence,
referring to the Trisaki/Semanggi massacres. Usman and
several other human rights leaders told us that Yudhoyono
himself does not have any skeletons to hide but that the
military is still too powerful an influence for his
government to pursue senior officers who are implicated in
these crimes. Noting that unless the government pursues
these old crimes, there will be future ones, Hakim added,
"You have a culture of impunity and irresponsibility by the
military and government that is so strong that they use
arbitrary power to stall this initiative" (human rights

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justice). Right-wing, staunchly anti-communist members of
the Islamic community also opposed the KKR because it would
have provided an avenue of justice and compensation for
victims of the 1965 anti-communist pogrom, Hakim said.
(Muslim groups carried out most of those killings).


10. (C) Comment: Human rights groups were just mildly
disappointed with the demise of the Truth and Reconciliation
Commission in that the KKR was a flawed mechanism to bring
real justice for the victims and seemed to be going nowhere
due to a lack of political will. However, there are dozens
of victims and relatives who continue to demand justice,
sometimes after years or even decades have passed. The voice
of civil society is growing louder in Indonesia, so the GOI
will feel increasing pressure to find a way forward.
Furthermore, the GOI's domestic and international credibility
as a nation that upholds human rights and rule of law is at
stake. The USG should continue to press Indonesian officials
on what the GOI is doing to solve these cases and to seek a
replacement for the KKR mechanism. The Yudhoyono
administration probably also is aware that the culture of
impunity that pervades Indonesian society is as much a threat
to Indonesia's democracy as it is to human rights. End
Comment.
HEFFERN