February 22nd, 2008
Aide-Mémoire
7th UN Human Rights Council
3rd to 28th March 2008
Indonesia
The Government must act upon its international commitments to human rights
Since the beginning of its democratic transition in 1998, Indonesia has
ratified several international human rights instruments, including the
International Covenant on Civil and Political Rights (ICCPR), the International
Covenant on Economic, Social and Cultural Rights (ICESC) and the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT). While these steps are welcomed, Indonesia has yet to act upon the
obligations arising from these treaties.
Lack of Effective Habeas Corpus
Until now, the Indonesian Code of Criminal Procedure contradicts international
standards of fair trial. The lack of legal safeguards for suspects and
detainees leaves them vulnerable to human rights violations. Suspects are
regularly detained for unduly long periods of detention without access to
judges, legal counsel and independent medical examination. They are also rarely
informed of their rights but denied basic rights such as the right to an
interpreter, the right to visits by family members, the right to medical care
and the right to remain silent.
Torture
As the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment has pointed out after his recent visit to Indonesia,
the lack of effective habeas corpus in law and practice facilitates the
habitual torture of detainees by police and military officers. Also, Indonesia
has thus far failed to criminalize torture in its Penal Code and to establish
an independent complaints mechanism for victims of torture. Reminded of its
obligation to do so under the CAT, the Indonesian government usually claims
that this question is to be addressed in the revision of the Penal Code which
is currently debated in
parliament. However, reform of the Penal Code has been discussed since at least
two decades without observable improvements. Countless torture victims cannot
wait another two decades for access to legal remedy for their sufferings.
Death Penalty
The death penalty is still on the statute books in Indonesia and dozens of
convicts are on the death row. Numerous civil society groups are calling for
the abolition of the death penalty and a moratorium on pending executions. UN
Special Rapporteur Nowak echoed this call, "given the lack of legal safeguards
and doubts as to how confessions might have been obtained" in a country where
torture appears to be the prime investigative method of the police.
Human Rights and Environmental Issues
National and international economic stakeholders exploit Indonesia's natural
resources day by day without concern for the environmental destruction and
threats to human rights they cause. The exploitation of natural resources
correlates with myriads of land disputes. The national and international
companies involved, often in collusion with the local police and military,
force the inhabitants off their land. Rights of traditional owners,
particularly indigenous people, to give their free, prior and informed consent
to the development of their lands is increasingly recognized under
international law but is usually still denied in Indonesia. Frequent protests
from traditional land owners ensue, often resulting in a heavy crackdowns from
the companies' own security forces, the police or the military. Protestors have
been arrested, beaten and even killed.
Moreover, the sell out of Indonesian forests threatens the mere existence of
the 60-90 million people who depend on the forests for
their livelihood. Regarding agrofuels, the UN Special Rapporteur on the Right
to Food recently warned "that biofuels will bring hunger in their wake. The
sudden, ill-conceived, rush to convert food - such as maize, wheat, sugar and
palm oil - into fuels is a recipe for disaster. There are serious risks of
creating a battle between food and fuel that will leave the poor and hungry in
developing countries at the mercy of rapidly rising prices for food, land and
water. If agro-industrial methods are pursued to turn food into fuel, then
there are risks that unemployment and violations of the right to food may
result".
Human Rights and Religious Issues
Increasing Restrictions on Personal - Especially Women's - Rights and Freedoms
Aceh is so far the only province where the shari'a is officially in place. In
other areas, local governments have enacted regional bylaws introducing
shari'a-inspired regulations. These in some cases infringe on personal rights
and freedoms, especially on women's rights. For example, school girls - even
non-Muslims - are forced to wear head scarves at school, and in some areas
police raids and trials against unmarried couples have taken place. The
implementation of inhuman and degrading punishments like public caning has been
reported from Aceh. The national government evades its responsibility to ensure
that regional legislation conforms to the constitution and Indonesia's
international human rights obligations by hiding itself behind an ill-conceived
notion of regional and special autonomy, respectively.
Failure to Protect Religious Freedoms
The state also frequently fails to protect religious freedoms of minority faith
groups. In 2007, at least 92 members of religious
minorities have been arrested and at least 93 cases where the police failed to
prevent religious extremists from attacking or forcibly
closing down places of worship have been reported. Members of Al-Qiyadah
al-Islamiyah suffered the biggest number of these violations, followed by
Christians and adherents to the Ahmadiyah-faith.
Impunity
Past Abuses
Ten years into democratic transition, Indonesia has made no progress concerning
the prosecution of gross human rights violations committed under the 33-year
long reign of autocrat Suharto. The ad hoc-human rights tribunals for
atrocities committed in East Timor 1999 and Tanjung Priok 1984, the only trials
for past violations of international humanitarian law so far, have failed to
bring justice to the victims. Numerous other cases, e.g. the slaughter of
hundreds of thousands of alleged communists in 1965 or the
countless abuses committed during the downfall of Suharto, have so far not been
tried before an ad hoc-court due to the inaction of the attorney general,
parliament and president.
In order to ensure that these cases are treated according to international
criminal law standards, the authority to decide whether a
certain case constitutes a gross violation of human rights, which currently
lies with the parliament and the president, must be
transferred to the judiciary. Moreover, as the experiences of the trials for
East Timor and Tanjung Priok have shown, reforms to enhance the independence of
the judiciary as well as to establish civilian supremacy over the military,
police and intelligence services are needed to ensure that human rights-trials
are conducted in a free, fair and objective manner.
In order to prevent future human rights violations and to fulfil the victims'
right to truth and justice, Indonesia must come to terms
with its violent past. Besides ad hoc-human rights courts, truth commissions
provide a useful instrument for this endeavour. The 2004 Law on the Truth and
Reconciliation Commission was to create such a commission but empowered it to
award amnesty to the perpetrators. It also made compensation for victims
contingent on their signing formal statements of forgiving the
perpetrators. Last year, the law was annulled by the Constitutional Court as it
deemed these provisions contradictory to the constitution and Indonesia's
international obligations. As a truth commission is still mandated by national
legislation, the annulment of the law provides an opportunity for its
reformulation in accordance with international standards.
Present Abuses
Impunity is also still enjoyed by those responsible for human rights violations
committed after the end of the Suharto-regime. In the most prominent case, the
poisoning of reputable human rights-lawyer Munir Said Thalib in 2004, two
persons have been sentenced to one and 20 years imprisonment, respectively.
However, the findings of the presidential fact-finding team that strongly
indicate the involvement of the state intelligence agency BIN, especially its
deputy, Muchdi PR, and its former director, General Hendropriyono, have been
ignored by investigators.
The ensuing climate of impunity breeds new violations. In May 2007, navy
officers killed four and injured seven persons in Alas Tlogo village near
Pasuruan, East Java, in a dispute over a piece land claimed by the navy. This
shows that not only in conflict areas the Indonesian military still considers
itself as standing above the law.
Impunity in Aceh
Impunity is also a major concern in Aceh, where decades of armed conflict have
left a long legacy of abuse. The Helsinki peace agreement between the
government of Indonesia and the Free Aceh Movement as well as the Law on Aceh
call for the establishment of an ad hoc-human rights court and a local truth
and reconciliation commission to deal with human rights violations committed
during the conflict. So far nothing has been done to implement this commitment.
Impunity in Papua
In Papua, those tried before the permanent human rights court for killings and
torture during the Abepura incident in 2000 have been acquitted three years
ago. For two other recent cases, the incidents of Wamena (2003) and Wasior
(2001), the National Human Rights Commission has conducted inquiries concluding
that gross human rights violations took place. However, the attorney general
has failed to act upon these findings.
In 2007, Colonel Burhanuddin Siagian was appointed as regional military
commander in Papua. He has been indicted by the United
Nations for crimes against humanity in East Timor, including forming militias
responsible for human rights violations.
The Situation of Human Rights Defenders
The climate of impunity and the massive deployment of military troops over the
past three years make human rights violations an
everyday occurrence in Papua. As UN Special Rapporteur Hina Jilani noted
recently, the situation of human rights defenders is
especially grave in that region. They are stigmatized as supporters of Papuan
independence and face assassination, torture, arbitrary detention, intimidation
and other forms of violence by the security forces. While currently the
situation of human rights defenders in other parts of Indonesia may be not as
severe as in Papua, they frequently face similar problems.
On the basis of the situation outlined above, we recommend the following to the
7nd UN Human Rights Council:
to urge the GoI to introduce effective habeas corpus and other legal safeguards
in order to bring the Indonesian Code of Criminal Procedure into accordance
with international standards; to urge the GoI to criminalize torture in
accordance with the definition contained in article 1 of the Convention against
Torture and impose appropriate penalties;
to urge the GoI to introduce an independent and effective complaints mechanism
for victims of torture in all places of detention as well as·
to encourage the GoI to accede to the Optional Protocol to the Convention
against Torture, and establish an independent national
body to monitor places of detention as stipulated in the Protocol;
to encourage the GoI to accede to the Second Optional Protocol to the ICCPR
aiming at the abolition of the death penalty;
to urge the GoI to ensure the full protection of economic, social and cultural
rights, especially the rights to food and adequate housing;
to urge the GoI to protect the rights of indigenous people;
to urge the GoI to protect individual - particularly women's - rights and
freedoms in law and practice and to take appropriate steps in cases where they
are violated or threatened to be violated;
to urge the GoI to review the Law on Special Autonomy for Aceh and local bylaws
establishing shari'a-like regulations and
punishments in the light of the constitution and its international human rights
obligations;
to urge the GoI to ensure that the religious freedoms of minority faith groups
are protected by the state;
to urge the GoI to reform the law on human rights courts so that the decision
to establish an ad hoc-human rights court is placed
in the hands of the judiciary;
to encourage and assist the GoI to undertake further and sustainable steps to
establish an independent judiciary which is free
of corruption and fear;
to encourage and assist the GoI to establish effective civilian control over
the military;
to offer assistance to the GoI to reformulate the Law on the Truth and
Reconciliation Commission in accordance with international standards;
to urge the GoI to invite the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions and to agree to an investigation into the murder of Munir
by an independent team involving UN-mandated experts;
to call on the GoI to establish an ad hoc-human rights court for abuses
committed in Aceh during the armed conflict and to establish a truth commission
for Aceh regardless of developments regarding the law on the nation-wide truth
commission;
to call on the GoI to deal with human rights abuses in Papua promptly and to
ensure the adherence to fundamental human rights by the security forces in the
region.
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