Transitional Justice in the Asia-Pacific (17 page)

The AMM team members expended much effort to persuade Minister Hamid to broaden the amnesty beyond
makar
to incorporate other
crimes. But, in a few cases, Judge Karphammar also determined that individuals involved in serious violent crimes against civilians should not be pardoned. Assessing far more than one hundred disputed cases, the judge decided that most of those prisoners should be released and that fewer than ten should remain in prison. A few of the more difficult cases were resolved when the government granted accelerated remissions rather than amnesties. Those who remained in prison included individuals involved in the bombing of the Jakarta stock exchange in September 2000, in which ten people died, and the killer of Dayan Dawood, a respected university rector. After considerable hesitation, both Minister Hamid and the senior GAM leader
Malik Mahmud approved this negotiated outcome. The MoU parties declared the amnesty issue closed on 14 August 2006, meaning that ‘there were no disputed cases for the Head of AMM to decide upon’.
³⁶

Thus, a year after the signing of the MoU, the amnesty issue was formally closed. There was considerable bitterness and dissension in GAM ranks, however.
Irwandi Yusuf, the GAM representative to the AMM (and later governor) was sidelined in the decision making and was reportedly angry with Malik Mahmud because the outcome meant that some of the movement's supporters remained behind bars. Some GAM supporters say that those remaining in prison had been sacrificed in order to disassociate the movement from their acts and to absolve the leadership of guilt. The Forum for Justice for Acehnese Political Prisoners (Forum Keadilan Tapol/Napol GAM) formed and, with family members of prisoners and some other civil society groups, it campaigned for the release of the remaining prisoners.

While the outcome of the amnesty arguably prevented a serious breach between the parties and preserved the principle that there would be no immunity for perpetrators of serious crimes, the secretive nature of the deal meant that it was not presented to the public in this way.
Moreover, it was anomalous in that other GAM members who had not been arrested or imprisoned before the MoU, but who may have been responsible for equally serious crimes (or who even may have ordered the very crimes for which others remained in jail), did not face investigation or prosecution. It is not clear – and not widely discussed – whether such people are considered to have been amnestied for these actions.

The second controversial issue, also not widely discussed in public, concerns the one-sided nature of the amnesty and its implications for possible future human rights investigations and legal processes. Many military officers and some government officials privately argue that it would be unjust for government troops to be investigated and, in theory at least, prosecuted before a Human Rights Court while GAM members have been amnestied. During the deliberations leading to the passage of the LoGA in early 2006, members of former President Megawati Soekarnoputri's Indonesian Democracy Party–Struggle (PDI–P) argued precisely this and proposed a general amnesty for police and army soldiers who had been posted to Aceh.
³⁷
This proposal was not incorporated into the law. However, government or military officials sometimes make similar comments, at least privately. For instance, some officials have privately floated the idea of watering down, or even abandoning, plans for a TRC and Human Rights Court, justifying this by saying that GAM members have been amnestied while members of the security forces have not.

In fact, although this matter is far from certain legally, it appears that the amnesty granted by the Presidential Decree would not confer immunity to GAM members for crimes against civilians, even though few GAM members are likely to be aware of this. After all, it was precisely on the grounds that they had committed gross or ‘cold-blooded’ crimes against civilians that a small number of GAM members remained in prison. Legal experts interviewed by the author have different views on
this matter, but the weight of opinion seems to be that the amnesty does not close the door legally on future prosecutions of GAM members for crimes against civilians, even if nobody in authority in Aceh or Jakarta has any appetite for such prosecutions at present. Therefore, the argument does not appear strong that the amnesty for former GAM supporters would justify protecting other parties, such as the military.

The Helsinki MoU included a far-reaching provision providing a right to compensation, in the form of land, employment or social security for those unable to work, to ‘all civilians who have suffered a demonstrable loss’ in the conflict. This agenda of compensation was thus not linked explicitly to any wider truth-seeking or transitional justice framework. Instead, it continued a policy that had begun prior even to the signing of the MoU under which payments (
diyat
) were made to compensate members of the community who had lost family members in the conflict, without inquiring into who had killed them or under what circumstances. This policy was initiated by
Azwar Abubakar, then deputy governor of Aceh, in 2002 and drew on Islamic law precepts about compensation as a means to substitute for eye-for-eye punishments in cases of criminal law. It also reflected a broader mindset in the Jakarta government and amidst sections of the local political elite that a thirst for revenge among family members of slain rebels and villagers was fuelling the conflict, as well as a frank assessment by them that legal investigations into killings of civilians by the military would be impossible.
³⁸

The closest Aceh has come to a policy of reparations in the years since the Helsinki MoU has been through the policies implemented by the
Aceh Reintegration Agency (
Badan Reintegrasi Damai Aceh
, BRA). This body was formed in February 2006 as an ad hoc body through a President's Instruction and a Governor's Decree. Its mandate has largely focused on reintegrating former GAM combatants into society, and much
controversy has surrounded the ways by which it went about disbursing cash and other forms of assistance to former GAM fighters. In fact, at this point it is important to note a larger context of transitional justice activities in Aceh:
the Disarmament, Demobilization and Reintegration (DDR) framework according to which many of them were carried out. Disarmament and demobilization of former GAM fighters was from the start seen as a key to the success of the peace process in Aceh (various provisions of the Helsinki MoU dealt with the issue), and numerous programs were carried out and funds expended, to achieve these goals. Space does not permit a thorough review of the various DDR activities that took place in Aceh, or their failings and successes (a useful summary is MSR 2010). It is worth noting, however, that the DDR framework has provided an overarching meta-narrative through which many other activities that in other contexts might be considered part of transitional justice have been carried out. The core guiding principle of post-conflict activities in Aceh has very much been ‘reintegration’ rather than ‘transitional justice’.

A good example here is reparations. These have very much been seen as part of the reintegration process. Thus a large part of the work of the BRA has focused on assisting civilians who were negatively affected by the conflict. According to a World Bank report of 2010, to the end of 2009, the BRA had spent 72.2 billion rupiah (about US$7.4 million) to run its programs, with 43 billion (59.9 percent) disbursed to civilians. The money came from many different sources, including international agencies and local and central government. Various forms of economic assistance to individuals have been paid, including a continuation of
diyat
payments to family members of people who were killed in the conflict, the construction of houses to replace those destroyed (26,000 by late 2010, according to the BRA)
³⁹
and artificial limbs and other assistance to people who were seriously injured. There was considerable policy inconsistency within the agency and major problems of implementation, and the agency itself claims that its job is far from complete; however, there is no further commitment of money from the central government.

BRA programs to help civilians generated considerable controversy among local academics, peace scholars, civil society activists and victims, specifically about whether such programs could truly be considered reparations, from a transitional justice perspective. The government made this claim, at least implicitly. In contrast, many activists say that reparations first require truth seeking, in order to determine who is and who is not eligible for assistance. In this perspective, the efforts so far by the BRA amount only to emergency treatment as part of the general post-conflict recovery effort. Though they are thus defensible, according to the activists, they must be seen as the beginning, not the end, of the process of compensating victims.
⁴⁰

One particular point of concern was that in the early years of its operations, BRA did not assist women who had experienced sexual or physical assault during the conflict because BRA refused to acknowledge rape cases in the absence of medical or other physical evidence.
⁴¹
It was only in 2009 that many such women were included in BRA's target lists. This change happened after various local NGOs agreed to establish a Task Force on Emergency Reparations for women who experienced sexual assault or other forms of gender-based violence during the conflict. The Task Force met the BRA management and promotes the idea of emergency reparations for victims, providing the BRA with a list of women who need such assistance.

Another part of the transitional justice agenda where there has been at best mixed progress is security sector reform. This is of course another area where progress in Aceh is strongly linked to developments in the broader Indonesian context. Certainly, since the fall of the Suharto government in 1998, an historic reorientation of the military has taken place, with the institution largely withdrawing from its former participation in day-to-day management of political affairs. However, deeper institutional reforms, such as the abolition of the military's ‘territorial structure’ which shadows the civilian administration at every level throughout the country, or the subordination of the institution to a truly civilian-dominated Ministry of Defence, have stalled.

In Aceh, which in the years of intense military operations seemed to be a bastion of unreformed military behaviour and ideology, there has also been significant progress. Under the terms of the Helsinki MoU, the military presence in Aceh was dramatically reduced, and the military function in the province was supposedly limited to external defence. Military checkpoints all but disappeared from Aceh's roads, the military presence is far less visible than it used to be, and the police have taken over running most security affairs. The gross human rights abuses that were almost daily fare during the conflict years have ended.

Various local programs and initiatives have also been taken to push forward the Security Sector Reform agenda. For example, a parliamentary caucus for monitoring and advocacy on the implementation of the security sector reform was established, drawing together fifty elected members of parliaments representing sixteen districts in Aceh, all of whom had participated in SSR workshops run by NGOs in 2009 and 2010.
⁴²
Since February 2009, the International Organization for Migration (IOM) has been running a program aiming to train so-called community police (POLMAS/Polisi Masyarakat), and has established a working group to monitor and evaluate the performance and behaviour
of police officers. The ultimate goals of this project are to change the behaviour of police officers, switching them from being military-minded to community-oriented and thus to alter public perceptions toward the police.

But such efforts have so far had little impact on the underlying institutional foundations or patterns of behaviour in the security sector. Military officers retain their territorial structure and their networks of intelligence operatives throughout the province, closely monitoring political affairs and the activities of former GAM combatants, even if they relatively rarely intervene, at least openly (there are constant rumours, however, of covert intelligence operations of various kinds). As in the past, military and police officials also participate in a variety of both legal and illegal business activities, though at a less intense level than during the conflict years. There have also been occasional reports of military officers interfering in local political affairs (such as when one officer angrily ordered physical punishments for civil servants in West Aceh who, in accordance with an instruction from the governor, had flown the Indonesian flag at half mast after the death of GAM founder Hasan Tiro).
⁴³

According to a report from the local human rights organisation KontraS Aceh (2010), there are several indications that security sector reform is stalling within Aceh. These signs include criminal behaviour by security force personnel, where the police are unable or unwilling to disclose who is responsible for various crimes or take action against them.
⁴⁴
Similarly, members of the TNI, in the view of KontraS, frequently participate in activities that exceed their mandate as a professional military,
for instance being involved in providing security for post-tsunami reconstruction projects, or intervening in the judicial process such as following a violent incident at Alue Dua village when TNI personnel beat fourteen villagers in retribution in the aftermath of a brawl. KontraS also point out that the TNI and police were also striving to access allocations from local state budgets at both the provincial and district levels, despite the fact that such allocations are explicitly proscribed in law (as so-called vertical institutions, the security forces are supposed to be fully funded by the national budget).
⁴⁵
Moreover, there has never been an official audit of military spending in Aceh, despite the frequent and longstanding allegations of participation by military officers in corruption and illegal business.