Friday, August 21, 2015

Don’t force Indonesia’s Aceh victims to shake hands with the devil

Ten years ago at the end of summer in Helsinki, the government and the Free Aceh Movement (GAM) signed a memorandum of understanding to end more than 30 years of the conflict in the province.

This historic moment of Aug. 15, 2005 was celebrated in Indonesia, particularly by the people of Aceh, with hopes that peace would also end violations of human rights and injustice, showing that humanity prevails after all.

Moreover, the “Helsinki Agreement” showed the world that amid all the suffering after the earthquake and tsunami of Dec. 26, 2004, both conflicting parties succeeded to put humanity over their political interests, which had until then blocked all efforts to reach peace in Aceh.

Today, peace should not only be celebrated by former conflicting parties, but also by the common people in Aceh, especially the victims of human rights abuses.

During the past 10 years, peace in Aceh only had a single interpretation — the end of the armed conflict without any legal consequences for violations of human rights.

The victims have never been mentioned as the primary party who should enjoy peace and the resumption of their rights to pursue justice and accountability from the state. Instead, efforts to gain the truth of the violations by either conflicting parties have been discouraged for the sake of peace.

Even worse, these efforts are characterized as attempts to disrupt peace itself. This means impunity is still intact in Aceh.

 The Helsinki Agreement mandated the immediate establishment of a human rights court and a commission of truth and reconciliation in Aceh. Prior to the agreement, civil society members in Aceh, together with their colleagues from all over Indonesia, were known for their very progressive movement in promoting human rights as part of the peace process and peace building. One of their significant efforts in promoting human rights based on the MoU was intensive studying, researching and lobbying of the draft of a bylaw or qanun on the truth and reconciliation commission in Aceh. This draft was later adopted by the Aceh legislative council as Qanun No. 17/2013.

Unfortunately, this qanun was delayed simply because Indonesia did not have a national law on the truth and reconciliation commission after the Constitutional Court overturned the law in 2006.

Unfortunately, there was no further discussion in the House of Representatives to replace the previous law. Additionally, the human rights court for Aceh does not yet exist and the immediate impact is that violation of human rights cases, especially during martial law, were never prosecuted.

Meanwhile, the new elite who were GAM fighters and who have now become local government officials have been busy with political and economic interests, using all opportunities brought about by the post-war period. Yet not all former fighters are lucky.

One cause is that during the peace negotiations, the GAM elite failed to thoroughly think how to fully reintegrate their fighters into society. Some of these discontent comrades then decided to take up arms and start guerilla warfare against their former leaders.

This situation triggered new human rights violations in Aceh and, as we learned from experience, the common people are the first casualty of the conflict.

The failure to fulfill such a mandate to set up mechanisms to settle human rights violations and to integrate former fighters under the Helsinki Agreement has led to imbalance between peace and justice for victims.

Peace should not delay justice; the development in Aceh reflects justice denied for thousands of the war survivors and their relatives.

The agreement also mentions the possibility of amnesty for perpetrators, but this provision cannot eliminate state responsibility to provide justice since these were crimes against humanity as recognized in international law.

 Justice should be achieved in post-conflict societies; it simply starts with the state’s recognition of the human rights violations.

This entails the state’s obligation to explain and to admit why and how the state was involved in a situation in which human rights violations occurred.

At this level, the state would first show its goodwill to render the truth to the victims through their policy on opening all available relevant information.

The second part of the state recognition of violations is that the state starts an investigation.

At this level, the investigation should be conducted by the National Commission on Human Rights (Komnas HAM) based on the Law No. 26/2000 on the Human Rights Court.

According to the law Komnas HAM has the right to summon anybody as a witness to hear their information about an actual situation. The rights body also has the right to access documents of all government institutions to seek evidence, including documents of the GAM as one of the alleged perpetrators of human rights violations.

The third part of the above state recognition of atrocities is that justice is carried out by an independent and impartial court. Finally, the victims and their family have the right for moral reparation to respect victims’ rights and dignity.

Hence, reconciliation and justice should be achieved immediately for the best interests of the victims. Also, reconciliation and amnesty cannot nullify justice and individual criminal responsibility.

This is shown by Qanun No. 17/2013, which adopted a significant understanding of how to reveal past human rights crimes by emphasizing both reconciliation and justice without any hesitation.

This means the truth and reconciliation commission to be set up in Aceh should not sacrifice the justice seekers while the human rights court in the province would try any case of crimes against humanity and/or genocide — even though the perpetrators are already heard before the truth and reconciliation commission.

This principle should be adopted at the national level since President Joko “Jokowi” Widodo has stated his administration’s willingness to reveal past human right abuses.

The problem is that Jokowi only emphasized reconciliation between the victims and the perpetrators without mentioning justice and accountability.

In this framework reconciliation merely forgives the perpetrators without any guarantee of preventing the same crime being committed again by the same perpetrators.

For the victims, this is a new form to prolong impunity since the question is for whom reconciliation is made if the state has never been willing to regret and apologize for what has been done to the victims. Victims would be forced to shake hands with the devil.

Reconciliation should not result in negating justice and human rights, but in accepting one’s guilt and admitting to it.

When justice is achieved, Indonesians will learn from their mistakes as a moral society with Aceh being part of our responsibility.

Continuing to delay victims’ rights for the sake of peace will amputate the soul of the peace itself.

It is a must for the state to speed up its fulfillment of victim’s rights and social justice in Aceh to show that peace completely belongs to the people and not to a handful of elites.

The new elite who were GAM fighters have been busy with political and economic interests.
The writer is researching civilian involvement in state defense for his PhD in law at the University of New South Wales, Sydney. He is a researcher of Imparsial (the Indonesian Human Rights Monitor) and a former analyst for the Aceh ad-hoc team of the National Human Rights Commission during the military emergency in Aceh (2003-2004).


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