The aim of this panel discussion was to stimulate discussion regarding the various dimensions of the campaign involving different layers of action. The speakers are individuals who have much experience on human rights issues and Indonesian politics, both in Indonesia and outside Indonesia. Martha Meijer, who has had decades of experience in issues of impunity, human rights and international lobbying and advocacy activities opened the panel with a presentation on impunity in Indonesia. This was then followed by Dr Frederiek de Vlaming, who has observed and written on UN endorsed Tribunals especially in the case of Yugoslavia. Commenting on these presentations were Prof (Emeritus) Nico Schulte Nordholt who has been involved with issues of Indonesian politics and Francisca Pattipilohy, who is one of the survivors of the 1965 violations and was detained in Indonesia herself.
The first issue raised by Martha Meijer was the meaning of impunity itself as framed within the international and national context. The question was whether the 1965 violations could be placed under this definition and what should be taken into account in the fight against impunity.
She pointed out that impunity itself refers to the failure of the state to prosecute very serious internationally punishable violations such as torture, genocide, war crimes, crimes against humanity and human rights violations committed or condoned by government institutions.
Ms Meijer argued that at both the national and international level, there are already legal bases to fight impunity. First of all the ICCPR (International Covenant on Civil and Political Rights) and ICESCR (International Covenant on Economic, Social and Cultural Rights) have both been ratified by the Indonesian government. Within this framework the 1965 human rights violations therefore, fall under the violations covered by the ICCPR and ICESCR, since these include arbitrary arrests, extra-judicial executions, enforced disappearances, torture, discrimination, forced labour, violations of freedom of expression; maltreatment (no intention of torture), unfair trials, and death penalties.
Indeed there should be evidence and documentation which also include which violations occurred, where and when they occurred, who the victims and perpetrators were and the commanders in charge of these violations. However, this evidence had already been provided by the KOMNAS 2012 human rights report which showed sufficient evidence that the incidents were structural in nature and it had also identified the perpetrators.
Despite this, Ms Meijer also saw that the struggle against impunity faces a number of problems. First of all, the UN itself as an institution is flawed because the member states are also the culprits. Secondly when certain acts have been recognized as acts against impunity to what extent there is a binding instrument to deal with these acts of impunity. Furthermore, various dimensions within this struggle are open for interpretation, such as human rights violation and the identification of the chain of command. And ultimately, what should be taken into account are, among others, that the common objective of this project should be clear, the evidence should be conclusive and perpetrators have also the right to a fair trial. Nevertheless, a number of factors have helped to give strength to this struggle such as the cooperation that currently exists between Indonesian and non-Indonesian activists, between survivors and outsiders and also that there are now international agreements and concepts which provide a strong framework.
Frederiek de Vlaming, with her experience of examining various tribunals from close by, compared developments of formal tribunals, such as the Yugoslavia and Rwanda tribunals and informal tribunals (such as proposed by the IPT) and the differences between them. Since 1993 there has been a legal revolution within the UN when it introduced the war crimes tribunal to prosecute former heads of state. Even though Martha Meijer had stated that ‘there is no binding instrument against impunity’, Frederiek de Vlaming was more positive about the role of these tribunals, because looking back into the past, currently the international world has gone many steps forward. Twenty years ago it was thought that it would not be possible to prosecute heads of state or that there would be no such institution. But currently this mechanism and institution exists and it is based in the Netherlands. And also even though the criminal court did not stop the war in the former Yugoslavia, since there were still massive crimes committed in Kosovo and Serbia in 2000, nevertheless it started to develop standards for making people liable and accountable for starting that war and committing crimes during that war. So this process helped to bring an enormous development within international law itself but also it brought up the moral and political dimension, namely the idea of making individual people responsible for things that happened on such a scale even though they were not in the ‘scene of the crime’ but were behind their desks. And this is considered to be an absolute achievement although one cannot deny that we are operating in a much politicized context.
The non UN, non-formal tribunals emerged since 1966 when people were shocked by what the US did during the Vietnam war and even though it involved the most powerful country in the world with the sitting president involved, and people thought there is nothing one can do about this, especially European intellectuals gave their voice and since then various people’s tribunals regarding the war crimes have popped up every now and then, where there was no political back-up for an official formal tribunal. Thus, for example, there have been People’s Tribunals for Latin American countries and very recently there have been 4 sessions of Peoples Tribunals for Palestine.
As also with the presentation of Martha Meijer, Dr de Vlaming pointed out that indeed one cannot deny that there are a lot of pitfalls involved and also a lot of negative publicity surrounding these PT. First of all, one should be clear about what the aim of the PT should be. The main criticism directed at these tribunals has been that they have been very one-sided. Torture can be conducted by various sides and this should be taken into account. Secondly, one should have a clear legal framework. Even though it is not a formal tribunal where you will not be able to prosecute people nor can there be a judgement that can be enforced, one has to be clear about the category of the crime. Since what has occurred in 65 can be framed as Crimes Against Humanity, since it has been systematic, that it is a policy, and that it has been widespread, international lawyers will know what steps to take. The third important point is that one should be clear who one would want to involve in supporting these procedures. If one looks at the judges of the PT so far, one can see that there are several compositions of ‘the bench’.
Usually there are about 12 or 13 people in the bench. Apart from lawyers it may also involve public figures and artists, in order to attract sufficient attention. However as Dr de Vlaming argued, even though the PT is not a Formal Tribunal it should as much as possible resemble a Formal Tribunal. Since the Yugoslavian Tribunal is nearing its end, these lawyers would form a valuable reservoir of experts who would think through various important aspects such as: how to frame the crimes, how to select judges, how to deal with witnesses, how to organize the proceedings, how far one would want to go in having it almost as a real or formal tribunal; whether to specify the individual perpetrators; or whether to view this as a truth finding campaign only; and who would be the target of this tribunal, the state or individuals.
In such a way it is possible that the fruits of the Tribunal will be taken as seriously as possible. In other words it will receive more public recognition.
On the basis of these two presentations from Martha Meijer and Frederiek de Vlaming, responses were given by Nico Schulte Nordholt and Francisca Pattipilohy.
Nico Schulte Nordholt, pointed out the political realities in Indonesia at the present moment. He argued that although there is no doubt that the IPT itself is of the utmost importance, the political situation in Indonesia would not immediately be conducive for such an event to be officially recognized by the new government. He pointed out that despite the good will of the new president, Jokowi, he is still surrounded by people who control the ideology of the army regarding the Indonesian Republic, and within that the whole dogma of the army also regarding the 1965 killings. And as long as these people are in control, there will be no actions taken on the IPT issue since ‘1965’ is still regarded as a matter of security.
In addition to this, within the Indonesian society itself there has been a radicalization within the Islamic groups and the idea that communists are atheists is completely endorsed by this radicalization movement. Therefore he argued that we have to face these countervailing powers as soon as the stories are brought into the open which means that we have to be sure to protect those providing the testimonies and the stories that will be used as evidence in this process.
Bringing a more positive side into the picture, Cisca Pattipilohy reminded the audience, that history has provided us with a number of examples, specifically from the post Indonesian independence period, where political awareness-raising among the Dutch society was a slow process but eventually transformations did occur and public recognition of the wrongs of the past, emerged. She very strongly argued that although struggle against impunity regarding 1965 killings may be one of the most difficult things that we face, nevertheless to spread more information about what the situation was regarding 1965, is of the utmost importance. And she pointed out that Joshua Oppenheimer’s films have played a significant role in showing to the Indonesian society that such crimes have happened.
Based on these presentations and the responses from the public attending this soft launching, one then can see that there are several layers of actions that need to be taken into consideration. The first two speakers brought up discussions on all the factors that play a role regarding the steps towards the IPT itself and the aim to obtain International and UN recognition of the killings and the impunity of the Indonesian state. This means that apart from obtaining support from international lawyers and institutions, we have to obtain evidence strong enough to build an indictment, including all the necessary steps towards the IPT. Last but not least is the protection of those who are presented in the evidence or who are part of the evidence. The other two speakers brought up the discussion regarding the current political situation in Indonesia and the nature of public awareness raising.
There was also an important point brought up by a member of the audience, that in creating an environment where people become aware, one should be careful not to provide ammunition for the political opponents to bring the current government down; or to stigmatize family members of perpetrators or people who in the past have denied to recognize this event and treat them as criminals. The significant question raised at the end was that if this campaign should create a buzz to get public attention, what kind of a buzz should it create….