164-165, December 2001

The man who was elected to head the Papuan Presidium Council (PDP) set up in 2000, was abducted shortly after leaving the base of Kopassus, the army's elite corps in Jayapura, late on 10 November. The body of Theys Hiyo Eluay, who had become a respected, high-profile community figure, was found dead on 11 November, the day after he had been abducted.

The assassination plunged Papua into a deep political crisis. Few people doubt that elements within the Indonesian army, almost certainly within Kopassus, are responsible for crime. There have been many calls, in Papua as well as from members of the US Congress and international human rights organisations, for an independent commission to be set up to investigate the crime. Four days after the abduction, the European Union expressed 'deep concern' about the death and called on the Indonesian authorities to conduct a full investigation.

Theys had been invited to dinner at the Kopassus headquarters in Hamadi, South Jayapura, the capital city of Papua, on the occasion of Indonesian Heroes' Day on 10 November. Colonel Hartono, commander of the Tribuana Kopassus unit had driven to the home of Theys that morning to escort him to the event. Minutes after leaving the base at around 10pm for the 45km drive home, his driver phoned his wife in a state of great agitation, to tell her that her husband had been abducted. The driver, Aristoteles Masuko, had apparently been forced out of the car. While they were talking, the line was cut and the family's attempts to ring the driver on his mobile were unsuccessful. Aris, as the driver is known to his friends, has since disappeared. The fact that he is the key witness to the crime makes his disappearance all the more alarming.

On the following day, the body of Theys was found by villagers in Skouw, not far from the border with Papua New Guinea, more than 50 kms from where he had been abducted. His car was found upturned on the edge of a ravine near a tree, positioned as if to suggest that there had been an accident. His face was black and his tongue was hanging out, suggesting that he had been strangled to death, though the perpetrators had taken every precaution not to leave any marks on the body. An autopsy later concluded that Theys had died of suffocation.

Impartial inquiry needed

Human Rights Watch called for an impartial inquiry into what was 'clearly a well-planned assassination' while TAPOL, in a statement two days after the crime, strongly condemning this act of state terror called for a special commission 'independent of military interference' to establish the facts of this 'political assassination'.

Members of the victim's family immediately blamed the military, referring to the fact that members of Kopassus were well aware of his precise whereabouts.

While members of Kopassus were quick to profess their innocence, the military commander of Trikora military commander, Major-General Mahidin Simbolon, defied all logic, saying that the PDP chair had 'probably died of a heart condition'. Simbolon is himself from Kopassus and served for years as military commander in East Timor during the mid 1990s and earned himself a reputation for great brutality.

At the time he was killed, Theys Eluay, together with four other PDP leaders, was on trial for subversion. The others on trial with him were: Thaha Al Hamid, secretary-general of the PDP, the Rev. Herman Awom, Don Flossy and John Mambor. The trial appears to have been suspended.

News of the death resulted in some acts of violence in his home town of Sentani where angry crowds burnt several buildings and blocked the roads. However, apart from these outbursts, protests have taken the form of well-organised, peaceful demonstrations.

Theys was buried on 17 November, in the presence of a grief-stricken crowd of over ten thousand people, some of whom had trekked long distances. The Papuan kejora (Morning Star) flag fluttered half-mast in many places throughout Papua. He was buried near his home in Sentani, in a sports field which has been transformed into the burial place for independence leaders.

Back in August 1969, Theys was one of more than a thousand Papuans who were coerced into becoming members of several hand-picked councils that were required to adopt a 'unanimous' decision in favour of integration with Indonesia. This so-called 'Act of Free Choice' organised by the Indonesian military became the basis for a resolution of the UN General Assembly on 19 November 1969, removing the question of West Papua from the UN agenda. In an interview with the Australian Broadcasting Corporation in May 2001, Theys said:

'During those days, especially during the so-called Act of Free Choice, I myself for instance, I was taken from my home in the middle of the night without my wife and my children knowing about it, why I was taken and where I was being taken to. When I arrived to where the others were being interned, we were all drilled that the province of West Irian, which is what it was called at the time, belonged to the Republic of Indonesia, was an integral part of the Republic, and we were not allowed to say anything else. We had to go along with that, we had to give in to the intimidation.' [Australian Broadcasting Corporation, 31 May 2001]

Theys also bore the title of Ondofolo, tribal leader, as chief of the Sentani tribe.

Papuan Presidium Council

The Papuan Presidium Council (PDP) which Theys Eluay chaired was set up at a meeting in Jayapura in February 2000 when it was decided to convene the Second Papuan Congress in May-June 2000. This Congress was held as a sequel to the first Papuan Congress held in December 1961 when the territory was still under Dutch rule. On that occasion, Papuan independence was proclaimed and national emblems including the flag and anthem were adopted.

The Second Congress was attended by hundreds of delegates with the enthusiastic support of many thousands of Papuans who gathered in Jayapura at the time of the event. [See TAPOL Bulletin, No 158, June 2000.] While adopting a firm position in support of independence for Papua, and rejecting the validity of the Act of Free Choice which was held in August 1969, the Congress decided to pursue the path of dialogue with Jakarta, eschewing violence as a means of struggle. Since its foundation, the PDP has projected a new image of Papua's independence struggle, dedicated to a peaceful solution. The OPM or Free Papua Movement which, with its armed wing, the TPN, has waged an armed struggle since 1965, still exists as a separate entity while having a place within the PDP.

The then president of Indonesia, Abdurrahman Wahid, gave his support to the Congress and initially promised to deliver the opening address. He later changed his mind, apparently under pressure from his vice-president, Megawati Sukarnoputri, and donated money instead. Wahid later showed his sympathy for Theys and the other PDP leaders when he urged the police in Jayapura not to keep the five men facing charges in custody. The police ignored his pleas. Wahid's efforts, aimed at encouraging Papuans to pursue the path of dialogue, did not find favour with the armed forces or with Megawati Sukarnoputri who later took over as president when Wahid was impeached in July 2001.

The Papua Presidium Council was soon acknowledged as a truly representative body supported by Papuans from all walks of life, with local representatives known as 'panels' in all parts of the territory. The political impact of the Congress and the PDP was not lost on the security forces and military intelligence who immediately saw the need for an operation to reverse the overwhelming support for independence.

Secret intelligence operation

Less than a week after the Second Congress, the key Indonesian military and non-military intelligence agencies, thirteen in all, came together to discuss political developments in Papua. Alarmed by the fact that 'the social/political conditions in Papua following the Papuan Congress has become very volatile', they agreed on the need 'to take speedy, concrete actions to anticipate ever-growing support in Irian Jaya and more generally throughout Indonesia'. The record of the meeting, marked 'sangat rahasia' (top secret) and dated 8 June 2002, noted that the people of Papua 'right down to the villages, were in a state of euphoria over the question of Independence, that a conspiracy of those in favour of Independence was becoming very solid and that efforts were underway to spread the results of the Papuan Congress to all corners of the territory, to the whole of Indonesia and even to the wider world'.

[The record of this meeting which was held under the auspices of the Ministry of the Interior in Jakarta, was leaked to TAPOL earlier this year. A summary was posted on the Internet on 12 October 2001. See 'Secret Operation in West Papua to Undermine Pro-Independence Movement', on www.gn.apc.org/tapol.]

The intelligence agencies decided to set up a special task force to create a 'more conducive' political situation in Papua; the strategic target of the task force was identified as 'community leaders, religious leaders, traditional leaders, youth and student leaders and the local media'. The document identifies by name a number of targeted persons, including Theys Hiyo Eluay and other PDP leaders, Tom Beanal, church figures such as the Rev Herman Awom and Karel Phil Erari, academics Dr Benny Giay and Agus Alua, Jakobus Pervidya Salossa (who is now governor of Papua), John Rumbiak and Yohanis Bonay of ELSHAM, the human rights NGO and student leaders Gerson Abrauw and Diaz Giwijangge.

As well as being the chair of the PDP, Theys Eluay was also one of Papua's foremost tribal leaders, so he was a 'strategic target' on two counts. Since his death, other leading PDP figures have complained of receiving life-threatening phone calls and believe that their lives too are in danger.

'Peace remains our method'

Tom Beanal, deputy chair of the PDP, has told the press that he holds Kopassus responsible for the death of Theys. Beanal is leader of the Amungme tribe, whose ancestral lands were seized and ravaged by the Freeport/McMoRan copper and gold mine. Beanal has since taken the controversial decision to accept a position on the board of commissioners of the company.

In an interview with the Indonesian-language weekly, TEMPO, on 2 December, Beanal talked at length about the killing of Theys and the consequences for the PDP. 'According to our custom, if someone invites a person for a meal, they must take responsibility for what happens after they leave to return home.' He said that the killing of Theys was clearly a 'very professional job'. Theys' driver said when he phoned Theys' wife that the men who abducted Theys were 'orang amber', (non-Papuans) and he could not believe that Indonesian government employees, traders or transmigrants could have committed such a well-planned crime.

He said the Megawati government must ensure that the crime is properly investigated. 'If this doesn't happen, we will conclude that the government will go ahead and kill us all. We won't ask the government to come here anymore and we'll tell them we can stand alone. That will be the result.'

On 20 October, the PDP issued a statement strongly rejecting the 'special autonomy' law for Papua that was about to be adopted by the Indonesian parliament, saying that they had never been consulted on the matter and their pleas for dialogue about Papua's future status had been ignored.

The PDP leadership have stated that they will not proceed to elect a new chairperson until the investigations into Theys's death have reached a satisfactory conclusion. In the early days of the Papuan Presidium Council, Theys Hiyo Eluay was joint chair together with Ton Beanal.

Evidence piles up

Initial investigations by the local police force have produced a great deal of evidence about the abduction of the PDP leader. However, they have made no secret of the fact that their investigations have come up against 'a blank wall'. This alludes to the fact that while the police have powers to undertake a criminal investigation, they are prevented from investigating members of the armed forces who are covered by a separate, military code of laws.

Among the more than forty witnesses questioned by the police are six men who were travelling in a mini-cab close to the place where Theys's car was ambushed. They told the police that they came across Aris, Theys's driver, in great distress, with blood on his face. He asked the driver of the cab to give him a lift to the nearby Kopassus base. The driver did as he asked and left him just a few metres from the entrance to the base, as he was afraid to go any nearer. They left the location as Aris enter the base. Some people have asked why Aris would have wanted to return to the base. He may have thought that the commander, having just hosted his employer, would take action to find out what had happened to his guest, as required by Papuan tradition.

ELSHAM's investigations

Papua's leading human rights organisation ELSHAM, the Institute for Human Rights Study and Advocacy, issued a Preliminary Report on 13 December, on the abduction and assassination which they described as being 'a pre-meditated and politically-motivated crime'.

The starting point for its analysis was the secret operations planned by thirteen intelligence agencies only days after the Papuan Congress was held in May-June 2000 (see above). ELSHAM drew a connection between this operation discussed at a meeting on 8 June 2000 and the sudden visit to Papua shortly beforehand by Megawati Sukarnoputri, then the vice-president. Her assessment of the situation in Papua was contained in a report to the caretaker governor of Papua who reported this to his bosses at the Ministry of the Interior, under whose aegis the secret operation meeting was held. ELSHAM accuses Megawati of having contributed to the subsequent loss of Papuan lives, culminating in the assassination of Theys Eluay.

ELSHAM investigators also discovered that the security forces created an atmosphere of fear in the days prior to the assassination. In one location, a virtual night curfew was imposed, warning people, especially young men, not to go out of doors at night in and around Jayapura. In late October, Kopassus troops also imposed a night curfew in Koya Timur, Tengah and Barat, close to the border with Papua New Guinea, until 'security conditions improved'. Joint patrols had effectively isolated the area. It was here that the body of Theys Eluay was found on 11 November.

On the morning of 10 November, two non-Papuan men describing themselves as 'intel', visited the Koya area, saying that they were looking for members of a Papuan taskforce. Later that night, a villager from Skouw (where Theys's body was found the next day) was roughly stopped by three Kopassus soldiers from going on an all-night hunting expedition. The villager returned home, but later told ELSHAM investigators that he felt something strange had been going on.

The ELSHAM report gives a detailed description of the many security posts located on the road along which the abductors would have had to drive the vehicle with Theys inside. An accompanying map shows the area, close to the border with PNG, to be heavily militarised. At at least three of the posts it is normal practice for non-military vehicles to be stopped for identification of the passengers.

Witnesses questioned by the ELSHAM team said they saw the vehicle in which Theys was being driven home being forced to stop by another vehicle that cut across in front. They saw two hefty non-Papuans alight from the vehicle and pull open the door of Theys's car. They had difficulty pulling out the driver because he was gripping the steering-wheel so tightly. After gaining control of the wheel, the abductors drove the car a short distance with the driver, Aris, hanging half out of the door. When he was pushed out, the witnesses who were in a mini truck recognised him as Theys's driver, with blood coming from his mouth. They took him on board and then at his request, drove him to the Kopassus base where Theys had had dinner.

Another witness who had been helping to receive the guests at the Kopassus base told the ELSHAM team that as he was cleaning the area where the guests had been received, he saw a man enter the base. The man was crying and saying: 'If anything happens, I will be blamed by Ibu (a reference to Theys's wife whom he would address with this word, meaning 'mother'). The car is lost. How could this have happened?' As he was speaking, the man was grabbed by two Kopassus soldiers and taken into the sleeping quarters. This was Aris, the driver. However, according to later reports, Kopassus soldiers strongly denied that Aris returned to the base and deny having any knowledge of his whereabouts.

ELSHAM also drew attention to the dangers faced by witnesses and the need for witness protection. The local police chief, also acutely aware of this problem, even asked ELSHAM to help protect the witnesses. [The English translation of ELSHAM's Preliminary Reports is available on TAPOL's website.]

Independent commission essential

Within days, calls were reverberating for the assassination to be investigated by an independent commission. The most powerful message came from the leaders of the Protestant and Catholic churches and of the Muslim Council, in a letter to Komnas HAM, the National Human Rights Commission. They declared that with the abduction and murder of the chair of the PPC, people's confidence in the government had fallen to an all-time low. People doubted whether 'the truth could be revealed if investigations were left to the police and/or the military police.' The religious leaders said that people who had come forward as witnesses were in fear for their lives because they had been receiving threats. They appealed to Komnas HAM to set up an independent commission composed of persons with the necessary expertise and of integrity and stressed that members of the police and the army should be excluded.

Kopassus involvement undeniable

Since the start of the investigations, most people in Jayapura, including the police investigators, have come to the conclusion that officers at the Kopassus Tribuana base were involved in the killing. The police made no secret of the fact that they had questioned seven Kopassus officers but also expressed frustration that their limited powers had confronted them with a ‘blank wall’. Even the army chief of staff, General Endiartono Sutarto, while denying that orders to kill Theys had been given, admitted that ‘rogue elements’ might have been involved.

Following a visit to Papua by three members of Komnas HAM, the National Human Rights Commission, all of whom are known to have strong military connections, the Commission in Jakarta announced it would be pressing for the creation of an 'independent' commission, composed among others of personnel from the military, the police and the military police.

After a meeting with members of Komnas HAM, the central government then waded in with an announcement in mid December that it would set up an ‘independent commission’ by the end of the year. Minister-coordinator for security affairs, the retired general, Susilo Bambang Yudhoyono, said the commission would include figures from the government and the security forces and NGOs, and even suggested that an expert from overseas might be invited to join.

By the of the year and well into January, nothing had been heard of this ‘independent commission’. Instead, the army announced that it was sending its own team to Jayapura to investigate the crime. This can only mean that news of Kopassus involvement had forced the army to take the matter over and deal with it in their own way. Meanwhile, Indonesia’s new chief of police, Da’i Bachtiar came out with a stunning admission on 29 December that evidence so far collected ‘points to members of Kopassus based in the Tribuana Kopassus base being responsible for the crime’. [Cendrawasih Pos, 30 December 2002] As the police were unable to investigate members of Kopassus, it was now for the military police to become involved, he said. According to the Jayapura police chief, Drs Made Mangku Pastika, this would mean that the role of the police in investigating the crime would end. Halfway through January, the police chief announced that their investigations had indeed ‘reached a dead end’ and they would now wait for the government’s team to be set up. But he had no idea when this would be. [Jakarta Post online, 12 January 2002]

If, as now seems to be the case, the crime has become a matter for the army, this can only mean that the army will seek to handle the investigations and any possible indictment strictly within the limits of the army’s own judicial mechanisms. This will block any investigation into the masterminding and planning of the assassination, and limit it to putting one or two ‘oknum’ (rogue elements) in the dock.

As all these machinations were underway, the three leading human rights organisations in Papua, ELSHAM, the LBH (Legal Aid Institute) and Kontras (Commission for the Disappeared and the Victims of Violence) stated their strong opposition to moves by the government and the imilitary to investigate the assassination themselves. This would mean ‘localising’ the crime and treating it as an ‘ordinary crime’ instead of an extraordinary crime involving state institutions. They reiterated their conviction that the killing was politically motivated and could only be handled by an independent international team which should include major, world human rights NGOs. The team should also have powers to investigate the role of state institutions, including the President, the Supreme Congress, the parliament (DPR), the Interior Minister and the national intelligence agencies.

2. Can 'special autonomy' work?

Confronting by growing resistance to rule from Jakarta in Aceh and Papua, the Indonesian government is trying to mollify the people in these two territories by offering them 'special autonomy'. This is intended as a strategy to prevent the country's disintegration and to preserve NKRI, the Unitary State of the Republic of Indonesia. But can it work?

During 2001, the DPR, the Indonesian parliament, adopted two laws on special autonomy for Aceh and Papua. Under these laws, Aceh is now called Nanggroe Aceh Darussalem or NAD for short, while Papua will shortly become the official name for what was formerly Irian Jaya. These laws were adopted as an additional incentive for the two 'troublesome' territories, only months after the law on regional autonomy, applicable to the whole country, was brought into force.

However, the problem is that the laws are being offered while there is no end in sight to the flagrant human rights abuses in both provinces, while military operations are still being conducted and demands for accountability for past human rights violations continue to be ignored.

Way forward or dead end?

The process by which the special autonomy law for Papua was drafted is instructive. It shows how genuine efforts were made in Papua to draft a law that would take on board Papuan demands, but this draft was then drastically amended by parliament in Jakarta.

Yet regardless of these efforts, the very concept of 'autonomy' is unacceptable to most Papuans who continue to feel aggrieved that their right to self-determination was sabotaged in 1969 by a so-called Act of Free Choice conducted under tight military control, with the results being shamelessly accepted by the United Nations. Against such a background, it soon became clear that any move towards 'special autonomy' would be doomed to fail, and would only intensify calls on the government to acknowledge the need for dialogue with people's representatives on the question of Papua's status as a part of the Republic of Indonesia. On 20 October, two days before parliament in Jakarta voted on the special autonomy law for Papua, the Papuan Presidium Council (PDP) issued a statement rejecting the law and repeating its call for dialogue. This statement was signed among others by the PDP chairperson, Theys Hiyo Eluay, who was assassinated three weeks later.

The Justice and Peace Secretariat of the Diocese of Jayapura has published an account and analysis of this process on which the following is based.

When the idea of autonomy for Papua was first mooted by Jakarta, the reasoning was twofold: that the problems in Papua were primarily economic, the failure of the development policy, and that Papua would for ever remain part of the Republic. The Province of Papua as it will now be called will be given a much greater share of the proceeds raised from the exploitation of its abundant natural resources.

As the regional assembly, the DPRD, offered no suggestions in response to the proposal being made by Jakarta, it was the governor, Jaap Salossa, who took the initiative, inviting scholars from Cendrawasih University (UNCEN) along with church leaders and NGOs to form a commission to draft a law. The process included visits to the districts to invite opinions from local communities.

The visits were disappointing as in many places, they only met civil servants. The final consultation took place at a three-day conference in late March in Jayapura attended by 28 delegates from each district but on the opening day, hundreds of protesters gathered outside. During the first session, students pushed their way in and expressed views that were opposed to autonomy. Outside, the police fired warning shots; one protester was trampled in the resulting clash and died the following day. Meanwhile, the students inside invited those who agreed with them to join them in a walk-out. A third of the delegates did so and boycotted the rest of the conference.

The Justice and Peace Secretariat concluded that although the UNCEN team had tried to incorporate many of the people's aspirations into their draft, far too little had been done to socialise the draft and it was rejected out of hand because the very concept of 'autonomy' had become so unpopular.

Later in the year, when the law was being discussed by the DPR, members of the drafting commission went to Jakarta and lobbied hard to defend their formulations, but on critically important matters, they were overruled.

The drafts compared

Space permits us to focus on only a few of the many issues where the law adopted by the DPR differs significantly from the UNCEN draft. These relate to the deployment of the security forces, authority over the police, human rights and a reconsideration of Papua's history, particular with regard to its integration into the Republic of Indonesia.

While the UNCEN draft stated simply that the Province of Papua is granted 'special autonomy', the DPR Law adds the words 'within the Unitary State of the Republic of Indonesia'.

The UNCEN draft acknowledged that Papua would have its own flag, anthem and emblem as symbols of identity, but the Law, while allowing these special features, describes them as 'cultural symbols' adding that they 'may not be used as symbols of sovereignty'.

With regard to the deployment of the security forces, the UNCEN draft provided for a 'participating role for the provincial parliament and government', but the Law reduces this to 'coordination' between the governor and the central government'.

The UNCEN draft provided for a Papua-based Commission on Human Rights set up at provincial level, but the Law stipulates that this Commission will be a 'branch' of the National (ie Indonesian) Human Rights Commission, set up by the central government

While the UNCEN draft stipulated that compensation should be paid to victims of past human rights violations (going back to May 1963 when Indonesia took over from the UN temporary administration), this is altogether omitted in the Law.

The UNCEN draft's article provided for the setting up of a Truth and Reconciliation Commission under the authority of the government of Papua with the task of reaching an understanding on the 'history of Papua's integration within Indonesia' (thus opening up the question of the fraudulent 1969 Act of Free Choice) but the Law states that the Commission will 'strengthen national unity within the Unitary State of the Republic of Indonesia'.

The UNCEN draft contained an article stating that if the Commission (described as a Commission for the Rectification of History) 'shows that the process of Papua's integration into the Republic of Indonesia did not accord with international law in relation to exercising the right to self-determination, the central government and the Papuan people via their parliament will take steps towards a solution'. This is omitted in the Law.

The UNCEN draft provided for a police force to be set up under the regional authority, but the Law states that the provincial police force is part of the Indonesian Police Force.

The DPR Law stipulates that the Province of Papua shall receive 80 per cent of revenues from forestry, fisheries and mining, and 70 per cent from oil and gas exploration. The UNCEN draft said simply that revenues from resource exploitation would go to Papua without setting percentages.

With regard to the processing of Papuan raw materials, the UNCEN draft said that this should be done in Papua, while the DPR Law states that processing will be determined according to 'sound, efficient and competitive principles'.

The UNCEN draft provided for a halt to transmigration, the programme under which tens of thousands of Indonesian families are re-settled in Papua, but the Law provides for the continuation of transmigration 'in consultation with the governor'.

The Special Autonomy Law as adopted by the DPR is due to go into force at the beginning of 2002 but there was confusion over whether it would come into force as planned, following the cancellation of a visit to Papua by President Megawati, during which she was due to ceremoniously hand over the Law.

Fatal consequences

Some people see the assassination of the PDP chairperson Theys Eluay as having been motivated in part by a desire to thwart the introduction of special autonomy. The security forces in Papua are known to be unhappy about special autonomy even as drafted by Jakarta. In particular, the army is known to be strongly opposed to the decision to allow Papuans to have their own flag, even just as a cultural symbol, and dislikes the idea of any concessions being made to the Papuan people.

Many demonstrations took place in Papua in the wake of the Theys' assassination, calling for an independent investigation but also rejecting Jakarta's special autonomy law. President Megawati was scheduled to visit Jayapura on 22 December for two days, to hand over the new Law and to spend Christmas there, but at the last minute, the visit was cancelled. No explanation was given for the cancellation nor was there any hint that the visit might take place at a later date. The head of state had obviously been warned by her advisers to stay away.

Sharia law for Aceh

At the commencement of the new year, it was announced that under the special autonomy law for Aceh, now called NAD, Islamic Sharia Law was going to be introduced. According to reports from Jakarta, the central government hoped this would 'dampen down calls for separation in the staunchly Muslim region'. It was also said that this was the first time 'in overwhelmingly Muslim Indonesia that the government had granted a province the right to practice Sharia'. [AP, 2 January 2002]

However, there was little enthusiasm in Aceh for this gesture. Yusuf Ismail Pase, a human rights lawyer, said it would not solve Aceh's problems. 'The Acehnese have been Muslims for generations. They have no need for Sharia.' Prosecuting members of the security forces for atrocities in Aceh would be a better way to win the hearts of the population, he said. As for GAM, the armed resistance movement, Tungku Agam Kateraja, a spokesman said: 'We are not fighting for an Islamic state but for one free from Indonesian rule.'

Perhaps even more indicative of the Acehnese response is the fact that HUDA, the Religious Scholars' Association which represents the head teachers and proprietors of about 600 religious schools in Aceh, with 80,000 students, has categorically rejected the law offered by Jakarta.

The idea of granting Aceh the right to introduce Sharia Law was first mooted by Abdurrahman Wahid shortly after he became president of Indonesia in late 1999. Having initially supported calls in Aceh for a referendum, he re-positioned himself after meeting with opposition from the political elite and came up with the idea of Sharia Law for Aceh. In those days, there was little enthusiasm for the idea and nothing has changed in the intervening twelve months.

3. Civilian rule, military power

Speaking to an army parade in late December, President Megawati Sukarnoputri told the officers and men that it was their duty to do everything 'to hold the country together'. They should not hold back out of a fear they might be violating human rights, as long as they acted 'within the law' and upheld the soldiers' oath, she said.

This extraordinary statement came at the end of a year in which the reform programme endorsed by all three presidents who have been in office since President Suharto was forced from power in May 1998 has come to a halt. Four months earlier, in her state address on 16 August, she had struck a different tone. On that occasion, she told the country's legislators: 'Whenever there is convincing evidence of severe violations of human rights outside the battlefield, those found guilty should be held responsible and legal action must be taken against them.'

In a press release, TAPOL said that Megawati's carte blanche to the Indonesian military was 'an alarming setback for human rights in Indonesia. Megawati has shown an utter disregard for human rights principles which are integral to the building of democracy in Indonesia.' [Statement by TAPOL, 30 December 2001.

Her words were directed particularly at troops who are on operations to quell the people of Aceh and Papua where alienation from Jakarta has deepened over the past year primarily because of the brutality they have experienced at the hands of Indonesian security forces and the failure of the government to punish past abusers of human rights. 'Suddenly we are aware of the need for a force to protect our ... motherland from breaking up,' she said.

Carte blanche for the military

When Suharto fell from power, the military were weak and disoriented. They were suddenly confronted with a torrent of complaints about the human rights abuses that had been the hallmark of the previous regime. For the first time in decades, they were on the defensive because groups of victims came together to demand that the cases from which they had suffered be thoroughly investigated and the guilty men brought to account. In virtually every case, officers and soldiers would be the ones who must face justice, should the case eventually come to court. This is what has made the spectre of 'violating human rights' a nightmare for the military, those still on active service as well as those now retired.

In the early post-Suharto period, two laws were enacted to provide the framework for these actions. The first was the Human Rights Law of 1999 which incorporated into law a whole range of violations and crimes against humanity that do not appear in Indonesia's penal code. The law also codified the practice and procedures of Komnas HAM, the National Human Rights Commission. The second was the Human Rights Court Law of 2000, providing for the establishment of four permanent human rights courts and the creation of ad hoc courts to try crimes against humanity retroactively.

Armed with these laws, Komnas HAM pressed ahead with the creation of several special investigation commissions known by the initials KPP HAM. Behind the scenes there have been efforts by the military men in the firing line, especially high-ranking officers, to bribe the survivors and the families of the victims into agreeing to deals so as to avoid prosecution. This has been most successful with regard to the massacre of peasants in Talangsari, Lampung, South Sumatra in 1989, which happened under the command of Hendropriyono, who is now in charge of all the nation's intelligence agencies and has a seat in the cabinet

A few days before President Megawati issued her carte blanche to the military, General Endriartono Sutarto, the army chief of staff, felt the need to admit that committing human rights abuses was 'still' a weak point for his men. 'I am aware there are one or two cases still occurring,' he said, but added that generals 'could not be held responsible for the mistakes of their troops'. Of course this is in contravention of one of the key principles of international human rights law, the principle of 'command responsibility'.

Civilian rule, military power

For a time during the first months of Wahid Abdurrahman's presidency, the military were faced with the threat of a major overhaul and scurried around to produce their own plans for a 'new paradigm' for reform, even hinting that they would cut back their territorial command structure under regional military commands known as Kodam. But gradually, the former president's reform measures came to a halt while the military succeeded in rallying their forces. In April last year, they used their muscle to force Wahid to issue Presidential Instruction IV/2000 for a so-called comprehensive solution to the crisis in Aceh. This amounted to nothing less than the resumption at a more intensive level of military operations in Aceh which has led to a massive increase in the death toll and grave abuses in Aceh (see separate article). This was a major turning point in the balance of power between the civilian-led government and the military, marking a significant political victory for the armed forces, the TNI. We had long predicted that the crisis in Aceh would lead to such a showdown.

Two months later, Wahid was impeached and the army gave full, though largely behind-the-scenes, backing to Megawati who has never shown any inclination to stand up to the military and roll back their power and influence. Being a dyed-in-the-wool nationalist, dedicated at all costs to 'holding the country together', a view also held by Wahid (but without the tolerance of the Muslim leader), Megawati's prime concern is to destroy every 'separatist' movement that rears its head and she freely accepts the military's view that this can only be achieved through military operations. As the conflict intensifies in Aceh and in Papua, following the assassination of Theys Hiyo Eluay, and communal or religious conflicts spread ominously to other parts of the archipelago, the military have come into their own again, gaining ground through deals and negotiations with the political parties.

People often ask whether, as social and economic conditions in Indonesia continue to deteriorate, the military will try to seize power again. As things stand at present, they have no need to do such a thing. Under civilian rule, they have managed to secure for themselves a position of formidable power. They also know that military rule would provoke new political and economic problems for Indonesia internationally, and anyway, the country's economy is in such dire straits (see separate article) that they would be foolish to put themselves in a position where they would have to take responsibility for what may soon be a very grave crisis.

What we have today in Indonesia is a situation in which military power is cloaked by a civilian government.

Weakness of civil society

Early four years after the fall of the dictator Suharto, there has been a distinct weakening of civil society, particularly at the centre of government, in Jakarta. The stagnation of the reform programme has resulted from this decline. Most political activity is being played out within parliament, the DPR, where rivalries between the parties is fierce and each one battles to win the favour of the military. Thus for instance, when the Bush administration launched its war in Afghanistan, anti-US street demonstrations were organised by fundamentalist Muslim groups with hardly any demonstrations raising the anti-war banner.

Towards the end of 2001, the human rights community in Jakarta came under threat with moves to undermine the leading legal aid institute, the YLBHI, forcing several of Indonesia's foremost human rights activists, including its chair and vice-chair, Bambang Widjojanto and Munir, to resign. A fierce battle also erupted within Komnas HAM over the appointment of members who all came up for re-appointment in late 2001, at the end of their two-year term. The faction composed of retired military and bureaucrats is likely to outnumber the genuine human rights experts in the re-constituted Commission. The conflict led to the bizarre situation in which the results of the Commission's investigations into an incident of police brutality in Abepura, Papua, was submitted to the attorney-general's office with two conflicting recommendations: one confirming that the police had committed a crime against humanity and should go before the newly-established (but as yet never convened) human rights court, and the other insisting that it was just a case of an 'ordinary crime'. Inevitably, this has undermine the public's confidence in the independence of Komnas HAM.

Police Bill strongly criticised

The decision two years ago to separate the police force from the armed forces was welcomed at the time as a big step forward, enabling the force to become a civilian-led force and discard decades of militaristic training and practices.

In February 2001, the DPR began to discuss a draft Police Bill and soon found itself under pressure from many NGOs, calling for major amendments to the draft. An NGO Coalition on the Police Bill was formed and secured a promise from legislators in late October that enactment of the bill would be postponed to enable parliament to consider the many complaints about the bill.

The criticisms relate in particular to the fact that the police force will be answerable only to the president, giving the force and the head of state unlimited powers and opening the possibility of the president using the police in pursuance of her/his interests, without any checks and balances. A National Police Commission is provided for to perform the role of watchdog but the members will be presidential appointees and in any case, will only have an advisory role. The main criticism has centred on the fact that the bill stipulates that the primary function of the police is to maintain security and order, while protecting and serving the public is placed within the context of that function. Critics insist that serving the public must be given pride of place.

Imagine the consternation when it was suddenly announced early in December that the draft had been voted into law without giving anyone the chance to present their criticisms to legislators. A demand from several regions that regional police chiefs should be chosen locally, in the same way that the central parliament approves the appointment of the national police chief, was completely ignored. Nursyahbani Katjasungkana of the Women's Association for Justice complained bitterly that the bill contained no mention of women who are so often the victims of crime. Bambang Widjajanto, chair of the NGO Coalition, said the police bill could 'become an entry point to the new authoritarian system, as the president could freely utilise the police who are now armed with such a suppressive mechanism'.

One member of the parliamentary commission in charge of deliberating the bill, a member of the PDI-P, gave a broad hint that money politics had played a part in securing the sudden enactment of the bill. [The Jakarta Post, 13 December 2001]

The only option now left to campaigners to undo the damage is to appeal to the president not to sign the bill into law. A signal step forward in the reform programme, separating the police from the armed forces, has suffered a major setback and the police look set to continue to pursue a security role which places them on a par with the army.

10. Can things ever get better in Aceh?

'Ringing in the New Year' for 2002 was laden with woeful remarks about the end of a terrible year. Few people anywhere in the world had better reason to say this than the Acehnese and for them, it had nothing to do with September 11. Since the late 1980s, the Acehnese have never had a good year but 2001 was certainly the worst since they became part of the Republic of Indonesia in 1945.

The most conservative estimate of the number of people killed is 1,700, which is more than double the death toll in the previous year. The 2001 toll included casualties from a number of large-scale killings or massacres, assassinations of well-known figures and killings by 'OTK' or orang tak kenal' (unknown assailants). This was the year when hardly a day went by without at least one person being killed and on many days the death toll was upwards of five.

This was the year when Indonesia's first democratically elected president, Abdurrahman Wahid, bowed to pressure from the armed forces to issue 'Presidential Instruction IV/2001' in April, setting in motion new military operations and taking Aceh further and further away from the prospect of dialogue. Six months later, his successor, Megawati Sukarnoputri, issued her own 'Presidential Instruction VII/2001'. She needed no prompting from the armed forces to do this.

Territorial integrity justifies abuses

Whereas in her state address on 16 August, less than a month after taking office as president, Megawati apologised to the people of Aceh and Papua for years of human rights abuses and acknowledged that 'past government policies in Aceh has been wrong and harmful to the people', by the end of the year, she had changed her tune completely. Shortly after issuing her own presidential instruction for Aceh, she told the troops, during an army parade in Jakarta on 29 December, to do everything in their power 'to hold the country together' and 'not to worry about whether you are violating human rights'.

This was the year, like so many previous years, in which not a single human rights violation was brought to account, no one was charged or tried even for killing high-profile personalities, regardless of the solemn promises by the police to conduct 'rigorous' investigations and bring the perpetrators to justice.

With Megawati now holding the reins of power in Jakarta, it is clear that the military are getting their way on all fronts in Aceh. Most commentators agree that this is the 'price' Megawati has had to pay in return for armed forces backing for her presidency. But this is not the whole story. Megawati is first and foremost a nationalist, for whom Indonesia's territorial integrity is sacred. Of course, there are other ways to persuade the Acehnese - and also the Papuans - to remain within the fold of the Indonesian Republic. Even if only a few armed forces officers who are known to have killed, tortured or persecuted Acehnese people, were to be brought to trial, this could work wonders for Indonesia's reputation with the Acehnese people.

In October, the Minister of Justice and Human Rights, Yusril Izha Mahendra proposed the establishment of an ad hoc court to try those responsible for three Acehnese cases of gross violation in 1999 that were identified two years ago by an independent investigation team set up under President Habibie.

The three cases in question are, firstly, abductions, torture and killings perpetrated in the last two years of the DOM (military operations zone) period at a torture centre known as Rumoh Geudong in the district of Pidie, This building was the notorious headquarters of the army's elite commandos, Kopassus. The second relates to forced disappearances and killings in Idi Cut and Arakundoe, East Aceh on 2 May 1999, and the third is the shooting at Simpang Tiga KKA (the Kertas Kraf Aceh Pulp and Paper Plant crossroads), Krueng Geukeuh, North Aceh on 3 May 1999.

Since all these atrocities occurred before the enactment of the 1999 Human Rights Law identifying a number of crimes as gross human rights violations for the first time, they would have to be tried before an ad hoc court, with special retroactive powers. Such a court can only be set up by the President in consultation with the DPR, but will she do this, knowing full well that in all three cases, army officers would be in the dock?

Military fully in charge

Defying all rational thought about how best to solve the prolonged conflict in Aceh, the military role is being greatly intensified. President Wahid's Instruction IV/2001 in April gave the army the power to set up a special command, Kolakops, to handle the security situation alongside the police. Although the instruction set in motion a six-point comprehensive programme, the only point put into practice was the 'security' angle. In September, Megawati renewed the policy by issuing her own Instruction VII/2001.

However this appears not to be adequate in the eyes of the military. In early January, they announced their intention to set up a new territorial military command for Aceh, Kodam Iskandar Muda, after obtaining the necessary backing from President Megawati. The idea was mooted back in 1999 by then armed forces commander-in-chief, General Wiranto, but was quickly dropped because of the fear widely expressed in Aceh that this would result in a return to the grim days of DOM from 1989 till 1998. In the event, even without a special Kodam, human rights abuses have continued to escalate in Aceh.

The military said this would be done only after securing the agreement of the Acehnese people. Many civil society organisations issued statements strongly opposing the move yet within days, it was announced that the new military command would go ahead.

The move to restore the separate military command for Aceh has several motivations. One is political, to serve the army's desire to assert a greater role in 'solving' the conflict in Aceh. According to human rights lawyer Bambang Widjojanto, Megawati appears to have been persuaded that a peaceful, diplomatic solution to the conflict would take a very long time so she has accepted the need for a 'short cut', the crush-them-with-the-military-way.' [The Jakarta Post, 4 January 2002] Another motive is to eliminate the need to designate troops as 'non-organic' which has applied to troops from outside Aceh but within the Bukit Barisan command based in Medan, North Sumatra. And another is to localise the problems of Aceh and leave it to the local authorities to handle.

Human rights activist Hendardi, who spent months investigating human rights abuses in Aceh in the late 1990s described the move as a 'backward step for democracy. It must be seen as a territorial power grab by the army, an extremely political move to reclaim power and reassert their political authority in the regions. In fact, what needs to happen in Aceh is a withdrawal of military forces, not a reinforcement.' [AFP, 4 January 2002]

One of the country's top officials who has been actively promoting the establishment of Kodam Iskandar Muda is the governor of Aceh, Abdullah Puteh, who has been present at all discussions in Jakarta on the subject. Abdullah Puteh is from GOLKAR and is known to be very close to the military. His appointment as governor was initially opposed by President Wahid. The Jakarta Post asked in an end-of-year assessment about Aceh: 'Why has Aceh accepted as its governor Abdullah Puteh, of GOLKAR, a party that was also responsible for the introduction of the deadly operations in the late 1980s?' [The Jakarta Post, 27 December 2001]

Until 1985, there were three separate military commands in North Sumatra, one of which was Kodam Iskandar Muda. They were then incorporated into a single Kodam Bukit Barisan based in Medan.

No prospects for dialogue

The chances of dialogue with the armed resistance, GAM, have been struck a severe blow with the announcement by the government in Jakarta that talks are now a matter for the local government and that there will be no further role for a foreign mediator. This decision scales down the level of the talks and is intended to demote the status of GAM. Until now, the talks have been brokered by the Henri Dunant Centre - recently renamed the Humanitarian Dialogue Centre - which still has a presence in Banda Aceh. The central government now claims that using the services of a foreign mediator creates the impression that the talks are on a state-to-state basis.

The inevitable consequence of the change is that GAM is not likely to accept the change. In a statement issued by a spokesperson, Tgk Sofyan Dawod, on 4 January, GAM stated that a change of this nature cannot be made unilaterally and warned that the decision was 'very unwise'. A few days later, the armed resistance movement announced that it was calling a three-day strike in Aceh from 16 - 18 January, citing the decision to create the new command as one of the reasons.

Talks have come to a standstill since July 2001 when six GAM negotiators who were taking part in talks at a hotel in Banda Aceh were arrested by the police, in a serious breach of faith. Five of the men were subsequently released. The sixth man has since been charged and is currently on trial in Jakarta.

The Megawati government and the military are digging their heels in and opting for a undiluted 'military solution' with more troops, more operations and more human rights abuses, and with an agenda that now excludes all prospects for further talks. All in all, the prospects for 2002 are grim indeed.

Judicial review sought by NGOs

A group of NGOs in Jakarta announced in December that they were filing for a judicial review of the president's decision to issue Presidential Instruction VII/2001, prolonging the presidential instruction issued six months earlier by her predecessor, Wahid Abdurrahman. The three NGOs involved are Kontras, the Commission for the Disappeared and the Victims of Violence, PBHI, the Legal Aid and Human Rights Institute, and ELSAM, the Institute for Social Studies and Advocacy. Spokesmen for the group said the earlier presidential instruction had done nothing to uphold human rights; on the contrary, it had given protection to those who were perpetrating abuses. The two instructions have legalised military repression and enabled the security forces to engage in acts of violence on a massive scale. They provided the military with the protection they needed to conduct operations to crush GAM and halt dialogue.

'What President Megawati should have done,' said Johnson Panjaitan of the PBHI, 'was to repeal presidential instruction IV/2001 and issue a president decree providing for human rights abuses to be brought to justice in an ad hoc court or the human rights court created under Law 26/2000 on Human Rights Court. [Kompas Cyber Media, 7 December 2001]

Recent atrocities

With atrocities happening every day, no atrocities that we describe will do justice to the sufferings of the Acehnese. But for the record, we have chosen three incidents:

One observer who was in Aceh for several weeks in late 2001 confined herself to describing a series of incidents in Simpang Rambong, North Aceh. The village is accessible only by a very rough road and is located near an area known to be a GAM stronghold. In early December, according to the villagers, Indonesian soldiers arrived early in the evening, in Panther armoured vehicles, leaving a trail of destruction in their wake. Ten village houses were burnt in what the villagers insisted was an unprovoked attack. Several people were injured but with no clinic or doctor in the area, their wounds remained untreated.

A week later, the troops returned in greater numbers and carried out indiscriminate shooting. This time, a 13-year old boy, Ridwan was shot dead as he took cover inside the family home. Ridwan's mother said the soldiers shot through the window, smashing a mirror and killing the boy. Around the house lay the bullet castings. Many injuries sustained by the villagers were from bayonets. [Lesley McCulloch in Asia Times, 4 January 2002]

In a village in Central Aceh, not far from the district capital, Takengon, a woman who was seven months pregnant was set upon by a gang of ten men, some wearing army uniforms, the others in civvies. The woman who related her terrible experience in a state of great distress, insisted on being identified only by her initials. It happened on 14 December, in the middle of Ramadhan, the fasting month, when SN was alone at home, preparing drinks for people at the mosque. A group of men banged on her front door and insisted on entering even though she said her husband was not at home. The men who were armed with rifles barked: 'Where is your husband, where are the weapons, where is your money?' Finding nothing, they pushed the woman into a room and raped her in turn, as she screamed for help. Her neighbours guessed what was going on but were too afraid to leave their homes and come to her assistance. The woman later said she could not be sure that the men were Indonesian soldiers, but she and her husband decided to leave the area for fear of being attacked again. [Waspada, 3 January 2002]

The other atrocity occurred in West Aceh, on 9 January 2002. Four boys and men were sitting in a café in the village of Ujong Muloh, Jaya sub-district. At around 8pm, a group of soldiers from a nearby military command were out on patrol. As they drove past the café, they stopped and ordered the four to come out. After interrogating them for a few minutes, the soldiers opened fire and shot them all dead. The victims have been named as: Muhammad bin Sakdan, 18 years old, Budiman bin Umar, 35, Zubir bin Hasan, 14, and Sabirin bin Jalil, 20. [KAGEMPAR Banda Aceh, Students and Youth Coalition in West Aceh, 11 January 2002]

12. Militias convicted of crimes against humanity

In an important decision in December 2001, an East Timor court convicted ten militiamen of crimes against humanity committed in East Timor during 1999. Their Indonesian commander escaped justice, as Jakarta refused to extradite him. Earlier, in the first case in which an Indonesian officer has been called to account for the atrocities committed in East Timor in 1999, a United States court awarded US$66 million against an officer responsible for systematic violations of human rights.

Los Palos case

On 11 December 2001, the Special Panel of the Dili District Court, which has jurisdiction over serious crimes, handed down its first convictions for crimes against humanity against ten members of Team Alpha militia based in the Los Palos area of eastern East Timor.

The ten men were found guilty of involvement in a series of crimes between April and September 1999, including torture, murder, deportation of the civilian population and persecution. The court found that a widespread and systematic attack against the civilian population of East Timor had taken place in 1999 supported by the Indonesian authorities. The accused were aware that their actions were part of this attack and those actions, therefore, amounted to crimes against humanity.

The victims included an independence supporter, Evaristo Lopes, who was tied up, kicked, beaten with an iron rod and stabbed to death at a base of the Indonesian special forces, Kopassus, on 21 April 1999, and a group of nuns, clergy and an Indonesian journalist ambushed and executed whilst travelling from Los Palos to Baucau on 25 September 1999.

The accused were sentenced to terms of imprisonment ranging from 4 years to 33 years 4 months, the maximum allowed under East Timorese law.

Evidence was adduced that Team Alpha was created by Kopassus in the mid-1980s. At the times of the crimes Team Alpha operated out of the same building as Kopassus in Laruara, Los Palos. They shared logistical support and were armed and trained by the Indonesian armed forces, TNI. According to the indictment, the co-operation between the militia and the TNI included joint operations and attacks in which members of Team Alpha unlawfully arrested and abducted civilians who were subsequently taken to and interrogated by TNI, particularly by the locally-based 745 Battalion.

Charges were also laid against Lt. Syaful Anwar, a local Kopassus commander, who, according to the indictment, had authority and control over members of Team Alpha and issued orders and instructions executed by the team. He allegedly supervised the abduction of Evaristo Lopes and slit his throat while he was being held down by two of the convicted militiamen. He is thought to be currently in Indonesia. The Indonesian authorities have refused to extradite him despite an agreement between UNTAET and Indonesia which provides for the transfer of suspects between the two jurisdictions.

The Special Panel comprised an East Timorese judge and two international judges, from Brazil and Burundi.

No charges relating to the Los Palos atrocities have been laid against Indonesian officers higher up the chain of command.

Other indictments for crimes against humanity have been issued, mainly against militia members, in relation to crimes committed in Bobonaro, Liquica, Same and Oecussi. These cases are awaiting trial or have been adjourned pending further hearings.

[For comments on the performance of the Serious Crimes Unit of UNTAET, which brought the Los Palos case to trial, see separate article 'Justice delayed yet again']

Lumintang case

So far, only one Indonesian officer has been held to account in a court of law for the atrocities committed in East Timor in 1999. In September 2001, the US District Court in Washington DC awarded damages of US$66 million in a civil claim against Major General Johny Lumintang for his involvement in the campaign of violence. At the time, Lumintang was the Vice Chief of Staff of the Indonesian army.

In March 2000, East Timor activists in the US became aware that Lumintang would be visiting the US and instructed lawyers to prepare a claim against him alleging that, as a member of the Indonesian High Command, he designed, ordered, implemented and directed a program of systematic human rights violations in East Timor which resulted in the commission of crimes against humanity, including torture, summary execution, assault, battery and intentional infliction of emotional distress.

The main evidence of Lumintang's involvement in the East Timor atrocities - apart from the fact of his position in the Indonesian High Command - were a telegram which ordered local commanders to plan a crackdown should the East Timorese vote in favour of independence, and an army manual signed by him which stated that Kopassus officers were to be trained in propaganda, kidnapping, terror, agitation, sabotage, infiltration, undercover operations, wiretapping, photographic intelligence and psychological operations.

The claim was brought by a mother whose son was killed, a man who was beaten and shot in the foot, which had to be amputated, and a man whose father was injured and brother killed. The plaintiffs also all had their properties destroyed or were forced from their homes in the aftermath of the August 1999 ballot.

The main bases for the claim were two US statutes, known as the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act. The ATCA allows non-citizens of the US to sue for acts, known as torts, committed outside the US in violation of the law of nations or a treaty of the US provided the defendant is served notice of the suit in the US. The Torture Victim Protection Act re-affirms the ATCA and gives US courts jurisdiction over claims by non-citizens involving torture and extra-judicial killing.

In the event, Lumintang failed to respond to the lawsuit, and judgement was entered against him. A trial was convened in his absence to hear evidence of the allegations against him. That evidence was accepted by the court as Lumintang presented no defence.

In awarding damages to the plaintiffs, the court considered three main issues: the question of whether the court had jurisdiction to hear the plaintiffs' claims, the question of Lumintang's liability and the question of damages.

On the question of jurisdiction, the court decided that it had jurisdiction under the ATCA since the torts alleged in the case - torture, summary execution, crimes against humanity and cruel, inhuman and degrading treatment - were acts which violate international law or the law of nations and were therefore the kind of acts which are actionable under the ATCA.

The Torture Victim Protection Act was also quite clearly relevant since it provides a cause of action for torture or execution committed anywhere in the world. The Act does require that all local remedies must be exhausted, but the court found that seeking redress against Lumintang in East Timor or Indonesia would have been futile or inadequate so the need to exhaust local remedies was not required.

On the question of Lumintang's liability, the court found that he was both directly liable and indirectly liable for the acts alleged by the plaintiffs.

He was directly liable in that as the army's vice chief of staff, he - along with other high-ranking members of the Indonesian military - planned, ordered and instigated acts of terror and repression carried out by subordinates which led to the plaintiff's injuries. The evidence for this direct involvement was found in the telegram and army manual signed by him.

He was also indirectly liable under the principle of command responsibility, which is well established under US law for both crimes and civil wrongs. The court found that, as the army vice chief of staff and member of the TNI High Command, he (1) served as commander of subordinate members of the TNI in ET who perpetrated the acts of violence which injured the plaintiffs, (2) he knew or should have known that subordinates in ET were committing, were about to commit or had committed widespread and systematic human rights violations, and (3) he failed to prevent or punish the violations.

The court decided to award the plaintiffs punitive damages of $60 million as well as compensatory damages of $6 million. This means that as well as being compensated for the mental and physical injuries they suffered, they were also awarded a large sum intended to punish Lumintang for his actions.

In awarding punitive damages, the court followed US legal authorities which said that punitive damages are an appropriate mechanism for upholding international norms against human rights abuses. The measure of punitive damages was determined by the nature and scope of the defendant's acts, his evil motive, and the need for deterrence. In particular his participation in a pattern of atrocities in East Timor throughout 1999 was taken into account.

It is unlikely that the plaintiffs will ever recover the money they have been awarded, but Lumintang is now restricted in where he can travel abroad, and others may well be reluctant to travel to the US for fear of similar lawsuits.

The Lumintang case follows many similar claims brought in the US under the ATCA. They included the 1994 case which resulted in an award of $10 million punitive damages and $4 million compensatory damages against Indonesian general Sintong Panjaitan for his involvement in the Nov. 12 1991 Santa Cruz cemetery massacre of over 270 East Timorese. The plaintiff in that case was the mother of 19-year-old student who was among the victims.

Tagged: Aceh, West Papua, Timor-Leste, TAPOL

164-165, December 2001

Contact

TAPOL updates

Stay up to date

More

Search form

164-165, December 2001

Contact

TAPOL updates

Stay up to date

More