Transitional Justice in the Asia-Pacific (14 page)

For almost thirty years, between 1976 and 2005, an intermittent but often bitter civil war was waged in the province of Aceh, on Indonesia's northwestern periphery. The Free
Aceh Movement (Gerakan Aceh Merdeka, GAM) strove to win Aceh's independence, but the Indonesian military (Tentara Nasional Indonesia, TNI) fought to prevent this outcome at all costs. In the process, violent abuses were committed on both sides, with GAM fighters trying to purge the province of Javanese and retaliating against ‘traitors’ who betrayed the cause, and the TNI engaging in a protracted dirty war in which many thousands of civilians fell victim to arbitrary detention, torture, extrajudicial killing and other forms of abuse.

As time passed, more and more actors began to define the conflict in human rights terms. This began in the early 1990s, when international human rights organisations first began to document reports of large-scale abuses being conducted as part of the military's so-called Military Operations Zone (
Daerah Operasi Militer
, DOM) actions.
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After the collapse of the Suharto regime in 1998, there was a brief period of political opening in Aceh, and an array of new local activist human rights organisations sprang into being. Collaborating with Jakarta-based and international
groups, they campaigned to expose military abuses in the province and to have the perpetrators punished. In the first years of Indonesia's
Reformasi
period, there were also some official investigations of past abuses, and even the first halting steps toward prosecution of military perpetrators. At the same time, a new generation of Acehnese nationalists began to define Aceh's struggle for self-determination in human rights terms, arguing that Indonesian repression justified independence, an argument that was also taken up by GAM.
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Soon, however, such arguments were again overshadowed by a return to full-scale conflict which greatly narrowed the space for humanitarian and civil society activity and led to the return of many of the worst features of the dirty war. In 2003 the Indonesian government declared a state of ‘military emergency’ in Aceh, announcing that it wished to destroy GAM once and for all. This declaration became the cover for forced evacuations of villages and other harsh actions, many of which were associated with high levels of abuse against civilians.
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It is therefore not surprising that when a peace deal was eventually negotiated for Aceh, in
Helsinki in 2005, transitional justice mechanisms featured prominently. The Helsinki Memorandum of Understanding (MoU), signed by GAM and the Indonesian Government on 15 August 2005, featured four classic elements of transitional justice: security sector reform, reparations, a truth and reconciliation commission, and a human rights court (and thus at least the possibility of prosecutions). Hopes were high among human rights activists in Aceh that the territory would begin the long-delayed process of confronting its history of abuses against civilians.

Though they are often conflated, because they frequently run together in practice, it is at least possible to conceptually distinguish between transitional justice mechanisms that are implemented in response to
democratic transitions and those that occur as a part of efforts to make peace after protracted civil conflict. In democratisation cases, the human rights abuses at issue were typically perpetrated in the name of defending a society-wide authoritarian regime, and are therefore at least potentially directly relevant to all citizens. In civil war cases, especially if the conflict occurred in a small part of the country concerned, many citizens and political actors may not feel directly implicated in the abuses that occurred there, and even do not feel that they are relevant to their own experiences and interests. Both forms of transitional justice can pose particular challenges: the former can pose elemental threats to powerful political actors and be seen to threaten to derail democratic transition or consolidation; in the latter case sometimes simple indifference of key actors is the major challenge.

Viewed through this lens, Aceh faces a double burden: it has experienced both forms of transitional justice, in two separate phases. The first halting efforts to achieve justice in response to past human rights abuses were taken after 1998 as part of the democratic transition then occurring throughout Indonesia. The post-2005 and more comprehensive transitional justice efforts were a purposeful attempt to deal with Aceh's particular experiences of violence. Though these later efforts were coloured by the experiences of Indonesia's democratic transition, they potentially would deal with many abuses that occurred after the democratic transition on a national level had already taken place. As a result, transitional justice in Aceh has arguably experienced the worst aspects of both forms of transitional justice with the first round involving the political challenges of confronting a powerful military amidst an uncertain democratic transition, and the later efforts dealing with the legacies of conflict in a remote province that seemed far from the main currents of national political life, and in which much of the national political class and wider public had lost interest. To make matters even worse the Aceh-focused efforts after 2005 came as the impetus was running out of efforts at the national level to deal with the legacy of past human rights crimes committed in the name of defending the authoritarian regime.

In this chapter, we analyse progress in the key elements of Aceh's transitional justice agenda, noting that in most cases the process stalled within a couple of years of implementation, and some key initiatives have failed to get off the ground altogether. Our main focus is on the Aceh-specific measures that were taken as part of the peace process initiated by the 2005 Helsinki MoU. Since that time, the peace process and the Helsinki MoU have come to provide both the legal and the discursive framework in which almost all discussion of transitional justice occurs in Aceh. In this context, inaction has been especially great in areas where actors are expected to examine responsibility for past abuses. There has been more progress in areas where it is possible to take action without delving into the past, notably in security sector reform and reparations. The Truth and Reconciliation Commission, however, has failed to materialise so far, while there is virtually no prospect of prosecutions for past abuses. Although administrative problems have played their part in delaying the transitional justice agenda, we also point to underlying reluctance on the part of both Acehnese and national governments – where former perpetrators of abuses continue to be important actors or veto-players – to seriously confront the past. As a result, the initiative to pursue justice has to a large extent shifted to former victims and civil society actors themselves. Even among victims, however, views are mixed on the desirability of retributive measures vis-à-vis reconciliation, while the civil society organizations have found they have relatively limited political clout in post-conflict Aceh.

The inclusion of transitional justice mechanisms in the Helsinki peace accord was surprisingly uncontroversial. Indeed, as one of us has elsewhere observed,
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few of the individuals directly involved in the 2005

peace talks can clearly recollect how human rights and justice issues were dealt with in the negotiations, suggesting that they were simply less prominent and controversial than many of the thornier issues being discussed by the negotiators (such as the part to be played by local political parties in post-conflict Aceh). Early on in the talks, some GAM negotiators apparently spoke extensively about military abuses and called
for international investigations of them. These approaches were effectively defused by Martti Ahtisaari, the former president of Finland and chief mediator, who called on the participants to focus on the future, not the past, and by the main Indonesian negotiators who reassured their GAM counterparts that Indonesia was now a democratic country and had already established transitional justice mechanisms of its own, including a new framework of human rights courts and a Truth and Reconciliation Commission. As a result, by the time of the final rounds of negotiations, these issues were so uncontroversial that the negotiators had even forgotten to include the human rights court in the text of the agreement, and it was President Ahtisaari who, during the final drafting, insisted on its inclusion.
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Before we look at the implementation of various elements of the transitional justice agenda in greater detail, it is important to review two important aspects of the broader context.

First is the broader Indonesian transitional justice context. The transition from war to peace in Aceh is embedded in a larger setting of transition from authoritarian rule to democracy in Indonesia. As part of this democratic transition, especially early on (i.e. 1998 to 2001) a host of initiatives were taken and institutions set up to deal with past human rights abuses and to ensure that they would not be repeated in the future. There were, for example, several investigations into past gross human rights abuses and even trials of their perpetrators. However, and accounting for much of the tension surrounding transitional justice issues in Aceh, Indonesia's transitional justice institutions have been largely ineffective, especially in dealing with gross abuses. For instance, no senior military officer has been successfully prosecuted by the new Human Rights Courts established under the 2000 Human Rights law. Some were prosecuted and convicted in relation to abuses committed in East Timor around the time of the UN-supervised poll on independence in the territory in 1999, but they were later released on appeal to the Supreme Court.

Such failures have primarily, though not entirely, been due to resistance by the TNI, which remains a powerful veto player in the Indonesian political system even if it no longer plays a determining role in day-to-day politics.
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Indeed, it might be said that one unstated but central element of democratisation in Indonesia has been an implicit political deal by which the military eased itself out of politics in exchange for effective impunity for past abuses. Certainly, very few members of Indonesia's political elite believe that there is much purpose or benefit to be gained by pursuing military officers for past abuses, even if they agree that steps should be taken to avoid repeating these abuses in the future. Partly as a result of this factor, but also due to a host of other problems (including serious problems of judicial corruption and ineffectiveness) transitional justice in Indonesia overall must be assessed as a failure, despite the large number of initiatives.
As the International Center for Transitional Justice and KontraS (
Komisi untuk Orang Hilang dan Korban Tindak Kekerasan,
Commission for Disappeared Persons and Victims of Violence) argue in a comprehensive review of Indonesia's transitional justice efforts, ‘The series of successive failed mechanisms indicates systemic factors that undermine efforts to achieve truth and accountability for past crimes.
’
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Elements of this national context have been important in Aceh. While, as we shall see, military personnel have largely withdrawn as central political players in Aceh, they remain a looming presence there, and many other political actors are careful to avoid antagonizing them needlessly or providing them with a motive to intervene once more in local affairs (especially in a context where there is constant speculation about covert operations by intelligence agencies designed to once more fan the flames of conflict). Certainly, at the time of the negotiation of the 2005 Helsinki agreement, numerous serving and retired military officers
made it very clear that they did not want TNI personnel to be punished for actions they had taken as part of their ‘duty’ to eliminate GAM from the province, especially in circumstances in which former GAM fighters were being granted an amnesty.
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At the same time, certain elements of the national framework have also greatly complicated transitional justice in Aceh: in particular, a TRC in Aceh is supposed to be formed as part of Indonesia's national TRC, but such an institution has been in limbo since late 2006 when the Constitutional Court ruled that the 2004 law under which it was to be established was invalid (in part because it provided for amnesty and hence legal immunity for perpetrators of gross human rights abuses).