158 June 2000

Crisis in Maluku deepens [Maluku] • Show trial in Aceh a setback for justice [Aceh] • Three-month peace accord in Aceh [Aceh] • The need for international justice [Accountability] • East Timorese refugees still stuck [West Timor] • International meeting on East Timor [East Timor] • Solidamor office comes under attack [East Timor] • West Papuans vote for independence [West Papua] • Wahid's first six months [Politics] • Wahid wants 1966 decree to be revoked [Politics] • Communities challenge foreign investors [Regional Issues]

Humanitarian crisis in Maluku deepens

After a short lull, renewed violence has erupted in Ambon and North Halmahera. At least 38 people were killed in a week of violence in Ambon City and scores were killed in Christian villages in North Halmahera, with hundreds more seriously wounded. Maluku’s military commander, Brig. General Tamaela issued a shoot-on-sight order on 19 May in Ambon, signalling yet again that the army can think of nothing but a military solution.

In a series of well-planned raids, gangs of men attacked three Christian villages in North Halmahera. The first was on 25 May when there was a fierce attack on Mamuya village in the Galela district of Halmahera. According to church sources, no fewer than 25 villagers were killed and 52 injured, while eight of the attackers also died. The attackers stormed the village from the sea and from the surrounding hills. The attackers who were killed were armed with standard military weapons. Brig. General Max Tamaela acknowledged that the small number of troops in Halmahera were powerless to stop the slaughter.

Four days later, there was a similar attack on the villages of Makete and Duma, also in Galela district, when at least fifty people were killed. The deputy chief of the Galela-based Synode Masehi Injil Halmahera Church, Rev. Biso said that more than one hundred were injured and taken to a Christian hospital, 40 kilometres away. ‘Most of the victims were injured due to bomb shrapnel and gunshot wounds. Houses also were burned and many died in their sleep,’ Biso said.

Suharto clique behind the unrest

Many commentators have spoken about ‘dark forces’ being behind the unrest in Maluku and other parts of Indonesia without being able to identify who exactly they mean. But now Defence Minister Juwono Sudarsono has pointed the finger directly at former dictator, Suharto.

He told the press that supporters of Suharto were stirring up violence to try to shake the government of President Abdurrahman Wahid. Asked whether he thought followers of Suharto were behind the attacks, Sudarsono said: `Yes...and based on the information which I have received from the police and the military intelligence sources, these people are in Jakarta.’ The minister said he had information that followers of Suharto had been helping fund the jihad fighters. [Reuters, 1 June 2000]

Few doubt that the latest attacks on North Halmahera were the work of a new group calling itself Laskar Jihad Ahlus Sunnah, (Muslim para-militaries) which is dedicated to waging a holy war in Maluku.

Jakarta dithers while Maluku burns

Shortly before the new outbreak of violence in Ambon and Halmahera, Brig. General Tamaela was in Jakarta for consultations, including with President Wahid. On his return, he was unable to drive by road to Ambon City from Pattimura airport because security conditions in the residential district on the way were so bad, and had to go by speed- boat. The next day, armed forces chief Admiral Widodo arrived for a tour of inspection but he didn’t dare land or travel anywhere by road. He confined his visit to an inspection from the air by helicopter and spent the night at a naval base. As for Vice President Megawati Sukarnoputri, who was assigned by the president to resolve the Maluku crisis, she skipped Ambon altogether on a trip that was supposed to have taken her to several parts of eastern Indonesia.

While government and army leaders speak mostly in terms of a military solution, it is obvious that the security forces are not in control in many parts of Ambon. The number of firearms in the hands of the warring parties has increased dramatically. This has only added to the sense of hopelessness in restoring anything approaching calm in Ambon and throughout Maluku. Recently, Brig. General Tamaela warned that snipers were hiding in the wreckage of tall buildings. ‘If they refuse to surrender, the troops have been ordered to fire (from) their armoured vehicles.’

The aim of Tamaela’s mission to Jakarta was to report that government authority had collapsed throughout Maluku and to plea for more troops. But troop reinforcements from other parts of Indonesia have only created new controversies as the two sides accuse the troops of taking sides with the reds (Christians) or the whites (Muslims). There is a high turnover of troops as those coming from outside never remain for more than three months because of ‘war fatigue’ which quickly sets in a region as volatile as Maluku.

The war (a term increasingly used these days) in Maluku has steadily worsened since the outbreak of the conflict in January 1999. As the death toll mounts on both sides, the chances of healing the wounds become ever more remote. Religious leaders on both sides have lost control of their communities; nowadays, vigilante groups on both sides are playing the dominant role. While analysts agree that the origin of the conflict is neither religious nor ethnic but rather social and economic, the fact is that both communities now perceive the conflict in religious terms. [See also TAPOL Bulletin No. 156, January/February 2000].

Laskar Jihad arrive in Ambon

The arrival early in May in Ambon of an estimated 2,000 members of Laskar Jihad Ahlus Sunnah from Java immediately added to the tensions between the two communities. The Laskar Jihad is a relatively new organisation which sprung up after the escalation of violence in Maluku last August. The first time a ‘holy war’ in Maluku was mentioned was during a mass rally of Muslims in Jakarta last January which was addressed by senior Muslim politicians, including Amien Rais, who chairs the highest legislative body, the MPR.

The Indonesian press, which now enjoys far greater freedom, has been responsible for highly partisan reporting about the fighting in Maluku. Some tabloid papers carry front-page reports daily about the ‘extreme brutality of Christian Malukans’ and their alleged aim to obliterate the Muslims. Public gatherings in many places where speakers address the crowds in highly emotive language have led to the mobilisation of youngsters ready to sacrifice their lives to defend Islam in Maluku.

In April, it emerged that Laskar Jihad members were undergoing para-military training at a camp near Bogor, West Java. Local inhabitants started protesting because activities inside the camps were creating tensions in the neighbourhood. It also emerged that grisly scenes were shown being shown on television to the trainees. Laskar Jihad soon earned a reputation as a brutal vigilante group. No other conflict in Indonesia in the past few years has created such emotional responses. As with most socially engineered schemes in Indonesia, it can only be assumed that dark forces are providing huge sums of money for the upkeep, training and equipping of this dangerous group of men. People associated with the group made it clear that their intention was to go to Maluku to wage a ‘holy war’, and warned that if they were prevented from going, they would carry out their actions in Java.

When the police moved in and closed down the training camp, in response to local protests, they faced little resistance. Thereafter, home affairs minister, retired Lt. General Surjadi Sudirdja, pleaded with their leaders to abandon plans to go to Ambon, saying that they would undermine the fragile peace that had lasted for a few weeks. In the event, nothing was done to prevent them from going, further proof, if such was needed, that even at the highest level, the government lacks the authority or the political will to halt the spiral of violence. Incredible as it may seem, these high-spirited ‘warriors’ were greeted on their arrival in Ambon by the two top officials, Governor Saleh Latuconsina and military commander, Brig. General Max Tamaela. They brought with them nine containers of goods. Suspicions that they contained weapons proved wrong as they were full of food and relief goods for the suffering community. However, there is no shortage of weapons, many of which had arrived by other means. Laskar Jihad is clearly well organised and carefully planned every aspect of its infiltration of Maluku.

Once the news spread among Christians that the Muslim mob had arrived, only a spark was needed to ignite a prairie fire, which is precisely what happened. The spate of killings in Ambon City was the immediate result.

Total apartheid

In the course of 1999 many parts of Maluku have become completely segregated. The beautiful mosaic of the past, Muslim and Christian living in harmony next to each other, has now become a nightmare. If one travels from one island to another, the voyage needs careful planning. Muslims must take care to travel from one Muslim enclave to another and may have to take circuitous routes by sea or land to avoid passing through Christian areas. And the same goes for the Christian traveller.

To gather information about the death toll and other casualties, Christian and Muslim hospitals have to be investigated. Any objective account of the day’s events means obtaining statements from the Protestant Church and from the local MUI chapter, the Muslim council.

At the top of the administration things appear to be very even-handed. The governor is a moderate Muslim, the army chief is a Christian and the chief of police, Brig. General Dewa Astika is from Bali with a Hindu background. But below this, the social fabric has been torn apart. While informal leaders, Christian and Muslim, have lost control of their respective communities, communities take their cue from firebrands in their early twenties who are militaristic in their behaviour, while many well-armed youth gangs from both sides have emerged. Anyone who mentions the idea of dialogue or understanding towards the ‘enemy’ is seen as a traitor. A year ago, traditional weapons were being used, but now, there has been an influx of firearms on both sides, changing the very nature of the fighting. Standard military weapons are everywhere, including semi-automatic rifles and even rocket missiles on both sides. Firearms are no longer the monopoly of the security forces.

Situation in North Maluku worsens

While in most islands in Central Maluku such as Ambon and Saparua, the religious communities are roughly equal, the situation in North Maluku has changed for the worse. The demographic make-up of the islands of Ternate and Tidore has changed, becoming almost entirely Muslim; Christians have either been driven out or killed. The northern part of Halmahera has become entirely Christian. Large areas in North Maluku have been depopulated because people are afraid to return to their villages. Crops, livestock and homes have been destroyed and many are living in squalid conditions in temporary camps.

It is estimated that 4,000 people have been killed in the past nine months in North Maluku alone, which has led to a total upheaval. Economic activities are at a standstill, all the shops have been destroyed; peasants have deserted their fields and fishermen have stopped fishing. The attack on the three villages in North Halmahera was bound to happen with Muslim groups being determined to take over Christian-controlled areas throughout the region.

The danger that the Muslim-Christian conflict might spread to other parts of Indonesia is ever-present. This happened last January with devastating consequences in the nearby island of Lombok in the Nusatenggara string of islands when several days of violence forced the small Christian - mostly Chinese - community to flee. [See TAPOL Bulletin, No 156, January-February 2000] Although Lombok has remained calm recently, the thousands of refugees still in Bali say they are too afraid to return to their homes.

Clashes between the two religious communities flared up in Poso, Central Sulawesi several weeks ago. Then, after a period of calm, they erupted again in late May when thousands clashed in Sayo and Poso Pasisir, on the outskirts of Poso, with petrol bombs thrown and arrows fired from both camps. At the last count, five people had been killed. The violence has driven most of the population of Poso away and the town is largely deserted.

Foreign social workers decide to leave

Following the latest eruption of violence in Ambon, the last remaining foreign social workers told Governor Saleh Latuconsina they could no longer remain. The fifteen social workers are attached to the UNDP, Medicine sans Frontieres and other organisations. ACS, a French NGO, told the governor: ‘Our jobs have been disturbed. The clashes are nonsense and have been too brutal. We feel pressured.’ The social work being carried out by these relief workers, assisted by 500 local volunteers, was one of the few bright spots for almost 90,000 internally displaced persons from both sides still remaining in Maluku. The departure of the foreign social workers will have a dire effect on the fate of the tens of thousands of IDPs. Altogether there are 200,000 IDPs who have been uprooted by the spiral of violence, many of whom have fled to other parts of Indonesia.

Light at the end of the tunnel?

It is more than true to state that the 32-year Suharto dictatorship is to blame for the collapse of civil society in Maluku, but the task of seeking a solution is urgently needed. Yet, quick solutions are not easy as the wounds are very deep and an intricate process of reconciliation at the grassroots will be needed. The economic meltdown in the urban areas of Maluku helped to accelerate the violence. Besides the 200,000 people who have fled the region, at least 100,000 people are unemployed. The violence has severely disrupted the market economy, many markets have been razed and small traders and food producers have been forced to evacuate to other islands. The army of unemployed is helping to boost the numbers joining the vigilante groups on both sides.

Thamrin Tomagola, a Muslim academic from North Maluku, has been urging the government in Jakarta to act swiftly but so far the authorities have done hardly anything constructive. He identifies three groups, each with their own political agenda and each playing a destructive role. The first group consists of military groups and residual networks from the old regime. These are often referred to as the ‘dark forces’ or ‘dirty hands’. The second group is the Poros Tengah (the Centre Axis, a loose coalition of Muslim parties and groups, some of which are in the government). Their agenda is to keep the situation in Maluku on the boil as part of their campaign to undermine the position of both President Wahid and Vice-President Megawati. The third group consists of the emerging vigilante gangs from both sides who benefit from the continuing crisis. Violence is their hallmark, their raison d’etre. Politically they are emerging as leaders of the communities, taking over from traditional informal leaders; financially they are kept going by the injection of a large amount of ‘relief’ money.

Despite this bleak reality, efforts to promote peace and dialogue among the warring parties are gradually beginning. Several initiatives at grassroots level have emerged with varying degrees of success. The demand by Christian leaders for a UN peace-keeping force in Maluku is understandable but pre-conditions are necessary, with both communities agreeing on some kind of international intervention and also agreeing that peace and reconciliation is the only way forward. Unless people can shake hands at the grassroots again, solutions imposed from the top are bound to fail.

The need for international justice

Recent events suggest that demands in Indonesia and East Timor for accountability, justice and an end to impunity will not be met for some considerable time. A draft bill on human rights courts now before parliament is deeply flawed and the judiciary needs a thorough overhaul. For the reasons set out below, we believe that an international tribunal is the only viable option for the trial of those in Indonesia responsible for last year's killings and violence in East Timor.

International standards must be met

In the weeks before the publication on 31 January of the international commission of inquiry report into human rights abuses in East Timor, Indonesia lobbied hard at the UN to ensure that alleged perpetrators would be tried in Indonesia and not before an international tribunal. At the time, foreign minister Alwi Shihab acknowledged that the Indonesian process would have to meet 'international standards' to satisfy demands for justice. The UN agreed to await the outcome of the Indonesian investigations.

In April, the UN Commission on Human Rights in Geneva adopted a Chairman's Statement on East Timor. An initial draft required Indonesia to set up a 'Special Human Rights Court that meets international standards of justice and fairness'. However, Indonesia fought hard to remove the reference to 'international standards', resulting in a weakened statement which merely refers to Indonesia's efforts to investigate and bring to justice the alleged perpetrators 'in the context of respecting international standards of justice and fairness'. These diplomatic efforts raise serious doubts about Indonesia's commitment to ensuring the credibility of its domestic process.

A credible domestic process is essential for justice in Indonesia as well as East Timor. The Bantaqiah trial in Aceh was a serious setback [see separate item], and investigations into the 1984 killings of hundreds of Muslim protesters in Tanjung Priok and the July 27, 1996 attack on the PDI party headquarters have been criticised by human rights NGOs.

The draft bill on human rights courts to deal with these cases is now before the House of Representatives (DPR). No date has been set for its discussion, but the chair of the DPR's legislation board has indicated it will not get top priority. Once started, the deliberations could be lengthy; the military faction is likely to delay enactment into law, to protect armed forces personnel so many of whom face possible indictment

There are already major problems with the procedures and substantive offences proposed by the draft bill and the quality of legal personnel available for the investigations, prosecutions and trials, issues that will take time to resolve. Given that Indonesia will not establish human rights courts which meet international standards for some time, the UN must set up an international tribunal for East Timor without further delay to satisfy expectations of timely justice.

Special human rights courts

The draft bill establishes a permanent human rights court and allows the president, on the recommendation of the DPR, to establish ad hoc courts to try cases involving past crimes. The following comments are based on an unofficial translation of the final draft, not on the Indonesian-language draft

The decision to provide for ad hoc courts was made after much public debate about how to deal with past violations, including those committed in East Timor. The difficulty arose from the fundamental right of an accused person not to be charged with an offence on account of an act that was not an offence at the time it was committed, the rule against retroactivity. Although some crimes listed, such as genocide, were crimes under international law at the relevant times, they were not crimes under Indonesian law.

Eventually, the drafting committee decided that ad hoc courts should be set up for specific cases of gross violations. Insofar as ad hoc courts deal with crimes which were internationally recognised when they were committed, this breach of the rule against retroactivity is morally defensible and consistent with international standards. However, ad hoc courts should not have jurisdiction over crimes which were not previously crimes under international law or Indonesian law. A note should be added to the bill explaining the justification for the ad hoc courts so that the new law does not create a precedent for future administrations to introduce oppressive, retroactive laws, as happened during the New Order.

The fact that the ad hoc courts will be set up by the president on the recommendation of the DPR is a matter of concern. This should be a judicial process and decisions on whether to pursue past violators should not be taken by politicians. Amnesty International has suggested that responsibility for establishing ad hoc courts might more appropriately lie with a reformed Supreme Court.

Criminal offences

The draft bill empowers the permanent and ad hoc courts to try cases involving 'gross violations of human rights' (Articles 1, 4 and 5). These include the crime of genocide, but do not include war crimes and crimes against humanity. Other than genocide, the crimes listed as 'gross violations' bear some resemblance to crimes against humanity. However, the bill differs fundamentally from international law on crimes against humanity in that, torture apart, it does not require the involvement of the state or a state-like organisation. Linking the conduct charged as a crime against humanity with an exercise of state power or state-like power asserted by a political organisation, has been a central feature of international law on crimes against humanity as developed by decisions of the Nuremberg, former Yugoslavia and Rwanda tribunals. It is included in the definition of crimes against humanity in the 1998 Statute of the International Criminal Court.

This defect goes to the heart of the issue of accountability. Crimes could be passed off as ordinary human rights abuses and not crimes against humanity orchestrated by the state/military. Junior officers could be targeted to protect senior officers and political leaders from accountability as in the Aceh trial and in many other past cases.

This is happening already. Concern that the East Timor investigation does not meet international standards because of 'its tendency to handle investigations into the violence in the territory as "ordinary crimes"' and not as 'political crimes and crimes against humanity' have been expressed by the Indonesian Legal Aid Foundation (YLBHI), the Commission for Missing Persons and Victims of Violence (Kontras), the Indonesian Legal Aid and Human Rights Association (PBHI) and the Institute for Policy Research and Advocacy (ELSAM). Leading human rights lawyer Munir said he feared the methods being used by the investigation would incriminate only soldiers and low-ranking officers, while senior officers who were not 'directly on the ground' would not be implicated and would remain free of prosecution [Jakarta Post, 6 May].

Munir has also said the investigation into the Tanjung Priok massacre is not leading to disclosure of the alleged state crime against humanity. The investigation should be designed to question state policies that have caused violence in society, 'Otherwise, it would lead to the conclusion that it was a common human rights abuse and not a state crime against humanity' [Indonesian Observer, 5 May].

Apart from this, the definitions of some of the crimes listed as 'gross violations' are inconsistent with international legal norms or lack clarity. In some cases, they are so broadly defined that they would appear to cover acts not normally considered criminal, let alone gross violations of human rights.

Command responsibility

Article 35 of the draft bill provides that a superior official who is aware of, or should be aware of, a subordinate's attempt to perpetrate gross violations and failed to take preventive measures is liable as if he or she had committed the violation. This is very welcome, but the Article should also make it an offence for an official to fail to report a violation already committed by a subordinate. The bill should also stipulate that a person cannot avoid criminal responsibility because he or she was obeying an order of a superior officer.

Inquiry

Criminal proceedings in Indonesia start with an initial inquiry (penyelidikan) and then an investigation (penyidikan) to determine whether there is sufficient evidence for prosecution. Article 8 of the draft bill provides for the inquiry stage to be carried out by Indonesia's National Commission on Human Rights (Komnas HAM). Komnas HAM comprises 35 members who are appointed by the President on the advice of the DPR and Komnas HAM itself. Members are selected from experienced judges and lawyers. The fact that members are appointed and dismissed by the executive and legislature, rather than by a judicial body may be a cause for concern and lead to political interference in decisions on whether a particular criminal investigation should be instigated or proceed.

Inquiries will normally be carried out by an ad hoc team appointed by the chair of Komnas HAM. Much depends on the persons appointed to the team. Komnas HAM's past record is mixed. The commission it set up to investigate violations in East Timor (KPP-HAM) was greeted by much initial scepticism, but carried out vital work in exposing the role of leading Indonesian generals. By contrast, there is much dissatisfaction with the team investigating the Tanjung Priok killings, particularly over its failure to examine mass graves and question high-ranking generals implicated in the killings. Protesters have picketed the offices of Komnas HAM and demanded the replacement of certain members of the team [Kompas, 3 May].

Investigation and prosecution

The investigation and prosecution stages will be undertaken by an ad hoc investigator and public prosecutor appointed by the attorney general (Article 10). Again, the fact that appointments will be the responsibility of a government minister, not a judicial body, is a matter of concern. To be eligible, a person has to be an Indonesian citizen, at least 40 years of age, a law graduate, of sound mind, authoritative standing, honest, fair and of good character, faithful to Pancasila and the Constitution, and have knowledge of and concern for human rights (Article 10 (4)).

The penultimate requirement, relating to Pancasila and the Constitution causes most concern. Pancasila is the official state ideology, comprising five principles, which appear unexceptional, but are so broad that they have been interpreted and used by past presidents to curb dissent, enforce social and political control, silence political opponents and justify detention without trial and torture. The principle requiring a belief in the One God is in itself a violation of the right to freedom of religion. It has been cited recently by opponents of the president's call for the lifting of the ban against communism.

The Indonesian Constitution adopted in 1945 has underpinned authoritarian rule for much of the last 55 years. In the words of the International Commission of Jurists (ICJ), '...the Indonesian nation has possessed as its Constitution a document almost infinite in its capacity for manipulation in the hands of later, autocratic rulers. This constitutional deficit has had profound implications for the rule of law and human rights...It has not and cannot act as the foundation of a State based on the rule of law...' ['Ruler's Law', ICJ, Oct. 1999].

In other words, Pancasila and the 1945 Constitution are antithetical to human rights and it is hardly appropriate for judicial personnel, including Judges, involved in the investigation, prosecution and trial of human rights violators to be required to be faithful to them. This problem could be solved in part by early reform of the Constitution.

The calibre and background of the personnel involved in investigation and prosecution will be crucial. Attorney General Marzuki Darusman has privately indicated that only one or two prosecutors are trustworthy. His office admitted that five state prosecutors were suspected of taking a Rp 12 billion bribe to conceal evidence [Jakarta Post, 11 May].

Considerable doubt has been cast on the independence of the investigation team appointed to follow-up the KPP-HAM report on East Timor because of the inclusion of military and police personnel. The team comprises 38 prosecutors, 6 police officers, 10 military police officers, 10 officials from the home ministry. An additional 15-member team of experts has been set up to advise and monitor the investigation. Leading human rights lawyer, Luhut, said:

I believe the team will not be able to act independently. Will those members be able to act independently of the organs to which they are attached. It must be abundantly clear that the investigation team should conduct its work in accord with universal judicial principles and conform with international standards [Suara Pembaruan, 20 April].

The danger is that this investigation will not be impartial if it is undermined by the involvement of individuals who are not independent or seen to be so. The appointment of investigators and prosecutors independent of the administration and its various organs is vitally important.

The courts

Cases will be heard by five judges including at least three ad hoc judges and two judges from the related district court. Ad hoc judges will be appointed for five years and dismissed by the president in consultation with the Supreme Court. The eligibility criteria are the same as for investigators and prosecutors (including loyalty to Pancasila and the Constitution) except that an ad hoc judge must be at least 50 years of age. This would bar many people who have spent years working on human rights.

Notwithstanding the requirement for consultation with the Supreme Court, the independence of the judges is undermined in that responsibility for appointing and dismissing them is in the hands of the president. The ICJ makes the point in relation to the judiciary generally that consultation may be formal at best since in the past all three senior judicial posts in the Supreme Court were held by retired or existing military officers. The ICJ's solution is that candidates for judicial office should be appointed by the president on the recommendation of a Judicial Commission of members of the judiciary and organisations representing the private legal profession. Judges' should face dismissal only only if no longer worthy of judicial office ['Ruler's Law', ICJ, Oct. 1999].

The draft law is silent on the conditions of service and remuneration of ad hoc judges. The Basic Principles on the Independence of the Judiciary states that these matters should be adequately secured by law. If they are the responsibility of the minister of justice, as they are with ordinary judges, the minister could reward judges whose decisions he or she approves. It is widely acknowledged that very few current judges can be regarded as independent and untainted by ingrained judicial corruption. It is encouraging that the bill does not require ad hoc judges to be appointed from the ranks of the judiciary. Hopefully, a significant number of appointments will be made from private lawyers, academics and others suitably qualified.

Rights of the accused

The draft bill includes no provisions to safeguard the accused's right to a fair trial. The Indonesian Code of Criminal Procedure (KUHAP) includes certain safeguards, such as the presumption of innocence and the right to legal assistance, but as the ICJ has pointed out, KUHAP was a creation and instrument of the New Order under Suharto and has proven inadequate in protecting human rights. The bill should, therefore, include standard trial rights relating to the presumption of innocence and various other rights such as the right to a public hearing and rights which ensure that the accused is able to conduct a proper defence.

Article 26 of the draft law, which allows a court to hear and rule on a case in the absence of the accused, is unjust and incompatible with the right to a fair trial. This is especially the case in Indonesia, which has a record of scapegoating junior officers and of 'disappearing' suspects who might implicate their superiors. Amnesty International suggests that the only exception to the general rule that an accused has the right to be tried in his or her presence should be if the accused has deliberately absented himself or herself after the proceedings have begun or has been so disruptive that they have to be removed temporarily.

The penal provisions (Articles 30 to 34), which allow the courts to impose sentences ranging from three years to life imprisonment, appear reasonable. The decision to exclude the death penalty is welcome. However, statements by President Wahid that he will pardon leading generals if they are convicted is worrying and amounts to unacceptable political interference in the judicial process. Justice will not be done and seen to be done unless appropriate punishments are handed down.

Trials in East Timor

There have been important developments in East Timor concerning the trial of pro-Indonesian militias. An embryonic legal system is being set up, but progress is inevitably slow. Resources are limited and inexperienced prosecutors, defenders and judges have to be trained. A UNTAET regulation on the organisation of the courts assigns the district court in Dili with exclusive jurisdiction over genocide, war crimes and crimes against humanity. The criminal code defining those crimes and the criminal procedure code have not yet been finalised. There are growing concerns about overcrowded jails, with some suspects having been in custody for more than seven months.

A more detailed analysis of the human rights courts bill is available from TAPOL on request.

East Timorese refugees still stuck

In May at least 124 people died in terrible floods in West Timor, half of whom were East Timorese refugees staying in camps near the border. As UNHCR strategies to speed the repatriation of refugees stagnate, this natural disaster may impel many to return. In the meantime humanitarian agencies in West Timor predict a malaria epidemic when the late rains finally subside.*

Organised and spontaneous returns to East Timor now stand at 161,850, while at least 130,000 refugees remain in West Timor spread out over 220 known sites. The failure of the international community to press the Indonesian government on this issue has resulted in Jakarta allowing the problem to fester on.

At first glance, the poor living conditions, low standard of health care and the hostile local environment would seem enough to encourage returns. However, below the surface is a complex, yet systematic, strategy to keep refugees in West Timor. Although a recent Indonesian census concluded that the vast majority of refugees wished to stay in Indonesia, local NGOs working in the camps say that at least 60 per cent would return home under the right circumstances.

Militias are the chief barrier

The presence of armed militias in the camps is the most crucial barrier to refugee return. Although human rights abuses have dropped within the last few months, the militia presence is a constant reminder to refugees of the terrible destruction in East Timor last September. It is this fear of retribution, intimidation and physical violence that keeps the East Timorese virtual prisoners in West Timor.

The refugees are organised into cells based along territorial and bloodlines. These ‘house societies’ make it harder for refugees to make individual decisions. The militias have exploited this system to manipulate large groups of people. Just as refugees were initially forced across the border in societal groups, so they remain, and so they must now return.

The militias also control humanitarian aid inside the camps. This means that international NGOs have no control over distribution once food has been delivered. Militias are known to demand food from families. Such racketeering not only ensures that militia members and their families are kept healthy but it also perpetuates their power and authority within the camps.

Disinformation serves to impress upon the refugees the militias’ continuing power. Rumours are constantly circulated about bad conditions in East Timor but more persuasive are reports in the local press. All five local newspapers publish propaganda articles by the militias and full page adverts advocating their cause. The airwaves are used to disseminate propaganda; Eurico Gutteres’ recently released album, ‘UNAMET, The Tragedy of East Timor‘ can be heard all over West Timor.

UNHCR attempts to counter this propaganda have been fairly ineffective. Mistrustful of the UN, the refugees ignore the UNHCR boards with information on conditions inside East Timor. The mistrust stems from UNAMET’s decision to leave East Timor after the referendum, leaving the Timorese at the mercy of the militia and the TNI.

Many of the refugees are ex police, army and civil servants who continue to receive salaries and rations from the Indonesian Government. Were they to return, their wages would cease as would their pension rights, so there is a financial incentive not to return.

UNHCR is powerless and ineffective

The UNHCR is seen as being powerless against the militias. Their staff only enter camps with TNI escorts and have abandoned repatriation operations after intimidation by militias. The UNHCR use TNI for their own protection which only serves to heighten the alienation of the UN from the refugees; in this way, the UN agency is in effect legitimising the TNI, a body feared by so many East Timorese.

Local NGOs working with the refugees know the situation inside the camps much better than the UNHCR whose claims to have full access are false as that they never enter without TNI escorts. Refugees are unlikely to talk openly with UN staff in the presence of armed Indonesian soldiers. The JRS (Jesuit Refugee Service) works closely with local NGOs and can therefore deal effectively with the crisis. They operate a postal service of hand delivered letters enabling refugees to receive first hand knowledge of the situation in East Timor from friends who have returned. This relies on close co-operation with local NGOs.

As long as the UNHCR continues to have what Craig Saunders, its chief of mission, calls a ‘non-existent relationship’ with local NGOs, they will never have a clear picture of what is going on in West Timor and their strategies will continue to be ineffective.

Role of the TNI

The other factor perpetuating militia control is the continuing involvement of the TNI who train militias in army barracks in TNI uniforms. While Colonel Jurefar, the district commander vehemently denies any army involvement and denies the presence of militia inside the camps, all the evidence points to the contrary. Local NGOs report militias still receiving salaries and supplies from the TNI and the recent border incursions into East Timor were extremely professional. The UN Peace Keeping Force found militias involved in border raids to be dressed in TNI uniforms and bearing new weapons.

The number of TNI troops in West Timor has increased significantly since the arrival of the refugees last September. TNI argue that they are there to protect the border in co- operation with the Peace Keeping forces. The presence of so many TNI has a psychological impact on refugees who cannot make spontaneous returns with so many Indonesian troops around.

What is unclear is the extent of active TNI involvement. It seems now to be fairly low key, probably a small group of disaffected officers who refuse to accept the outcome of a free and independent East Timor. The role of the Battalions 744 and 745 seems to have decreased. 745 has been dispersed to other parts of Indonesia while 744 remains in Kupang.

So, why do the militia continue to control the camps and why do certain elements of the TNI continue to support them? There is a certain amount of denial involved; the loss of power and status in East Timor has proved too much for many and so they have continued their war of intimidation and violence in West Timor. The leader of Besi Merah Putih is quoted as saying they have plans to infiltrate East Timor with modern weapons. Cancio Lopes de Carvalho, head of Mahidi militia, claims that he still commands 11,158 troops in West Timor. Fears of an extended guerrilla war have been backed by the continuation of training, involvement of TNI and border crossings. Rumours also continue about militias returning to strategic parts of East Timor to prepare for future offensives. This is hard to prove either way, as there are no security checks of refugees returning to East Timor through Batugade or Dili; during the border incursions in March, five armed militia smuggled themselves across the border disguised as refugees.

Dangerous deadline

Although Indonesia has stated that refugees have two years to decide whether or not to return home, the government has announced that by end of June it will stop sending relief, leaving it to the international agencies. This could affect repatriation. The end of June could mark the start of a more aggressive policy of resettlement and transmigration. One NGO in Kupang says that the resettlement sites in West Timor are already full and expensive to run and refugees are likely to be transmigrated to other parts of Indonesia. This makes it increasingly vital for a comprehensive census to be carried out in West Timor to determine the exact numbers of refugees outside of East Timor, especially if transmigration plans are carried out. A census in East Timor would also help trace missing people and work out estimates of those expected to return.

With such a deadline looming it is expected that the militias will step up their campaign. The original 31 March deadline for an end to Indonesian aid prompted an increase in border incursions and trouble inside the camps during March. The militias may well see this June deadline as an encouragement for refugee return and spend June destabilising the border region once more.

How will it end?

It is now nine months since over half of East Timor’s population was forced across the border to West Timor. The 130,000 refugees who remain do not represent the 20 per cent who voted for integration. They represent a population living in fear and confusion, the majority of whom would return home under the right circumstances.

The recent floods are just another blow to their psychological wellbeing. Health conditions have improved and the death rate has decreased but this is still not a stable situation. Malnutrition is high, as are chronic eye and skin conditions.

There is the danger of those in West Timor developing ‘chronic refugee syndrome’, whereby the population becomes dependent on refugee aid. This would have disastrous consequences not only for the refugees but also for the local West Timorese population. In some areas the refugees outnumber the local population; in the Hakisak region there are 30,000 refugees compared to 7,000 local inhabitants. At the moment there is an uneasy truce between the two populations but this is unlikely to last. West Timor is one of the poorest regions in Indonesia and refugees occupy valuable rice land. At the end of May, there was a bitter clash in Tuapukan between refugees and local people which left four people seriously wounded.

The window of welcome for them in East Timor is gradually closing. With not much justification, East Timorese in East Timor are becoming suspicious of those who remain in Indonesia and the refugees are also missing out on the vital first stages of development, rehabilitation and employment that are occurring on the other side of the border.

UNHCR currently has plans to be in West Timor until December 2001. Such a long-term strategy may have disastrous consequences for the mental, physical and economic well being of all Timorese. It is vital that militia are separated from the camps in order for all refugees to be able to freely make the decision to return or remain. The international community must continue to lobby the Indonesian Government to ensure the repatriation of all East Timorese who want to go home.

International meeting on East Timor

From 12 to 14 May, 30 representatives of East Timor solidarity groups from 11 countries gathered in Utrecht to discuss and reassess their solidarity work with East Timor. It was the first international gathering by solidarity groups after last year’s referendum.

There was a consensus about the new problems East Timor is facing. It was not difficult to spot the main problem, the deepening division between the population and the UNTAET bureaucracy, the aid agencies and foreign agencies. The problem of resolving this and promoting greater participation for the East Timorese was the main topic of the three-day conference.

Solidarity groups from around the world had been invited but because of financial constraints and the short notice, most of those present were from Europe. Also present were ETAN-US and the two Indonesian solidarity organisations, Fortilos and Solidamor. The next international gathering will be in Baucau, East Timor before the end of this year. Unfortunately, the three CNRT representatives to the European Community were still in East Timor while Jose Ramos Horta was unable to attend at the last minute as he could not to make a stopover before heading for Washington.

The conference was hosted by the youngest group in the solidarity movement: the Free East Timor Foundation in Utrecht.

A working meeting

The conference was opened by the Portuguese ambassador Santa Clara Gomes, an old friend of the East Timorese, who spoke about the new problems East Timor is facing.

Liem Soei Liong from TAPOL gave a short history of the changing character of the solidarity movement since 1975. From a severely isolated position in 1975, the solidarity movement gradually grew, especially after the Santa Cruz massacre in 1991 and the explosion of public attention in 1999. In each of the these periods, new solidarity groups emerged. In each period, the solidarity groups were a manifestation of the zeitgeist of the period. The first solidarity groups in 1975 expressed solidarity with Fretilin and campaigned for an independent East Timor. The groups that emerged after 1991 placed the emphasis on human rights violations and the right of self-determination, while the groups that emerged in 1999 have shown a strong commitment to assisting the East Timorese to rebuild their country and avoid the mistakes made in Cambodia and Rwanda.

While these differences were clear, there was for many years continuity in one vital respect, having to deal with the West’s undying support for the Suharto regime, selling it arms and so on.

The conference then split into four workshops as the participants were eager to give new substance to their new-style solidarity work with East Timor. The first workshop, ‘development actions’, dealt with a variety of topics: strengthening civil society, grassroots support, trauma, land reform, community organisations and co-operatives.

The second workshop, ‘monitoring the rebuilding process’, dealt with topics like: observing rebuilding, the utilisation of natural resources, sustainable agriculture and the follow-up of the Tokyo donor conference.

The third workshop, ‘justice and reconciliation’, dealt with: ending impunity, an international tribunal, the refugee problem, seeking the truth about the violence in 1999 and human rights violations back to 1975. The fourth workshop, ‘capacity building/assistance for reconstruction’, dealt with scholarships for East Timorese, networking between East Timor and the international community, how to support the new university and how to assist East Timorese diplomacy.

For a summary or a full report of the proceedings, please email the organisers of the conference: vrijoosttimor@yahoo.com.

Fortilos and Solidamor

Presentations by the two representatives from Indonesia gave invaluable insights into the solidarity work in Indonesia among the political elite and at grassroots level. Coki Naipospos from Solidamor described Solidamor’s work in the last few years, including sending a large monitoring team to East Timor before the referendum on 30 August. Solidamor activists are well aware of the fact that the East Timor issue helped to precipitate the downfall of Suharto. It was one of the issues that made the regime increasingly vulnerable. He also spoke of the gradual switch from an organisation focusing primarily on self-determination to one focusing on strengthening democracy, human rights and internation peace in the Southeast Asian region, including East Timor. Promoting democracy, human rights and anti- militarism in Burma is now an important part of Solidamor’s work. In the last few months Solidamor has also been the liaison office for CNRT, dealing with issues that go well beyond traditional solidarity work.

Fortilos grew from an organisation in Jakarta set up to help East Timorese who were facing trial after the Santa Cruz massacre. Its work expanded to include assisting the dozens of East Timorese prisoners, sentenced and held in various prisons in Java. Fortilos was set up in March 1998 to campaign for self-determination for the East Timorese and to find a peaceful solution to the conflict. It developed close relations with some of the main human rights NGOs in East Timor including Yayasan Hak. Through these contacts, it helped to establish three casa de povos (community centres). The casa de povo is a place where people can meet and try to resolve their problems. It is an integrated approach at grassroots level and can also generate grassroots expertise from outside for such purposes as training local people to set up co-operatives, trauma counselling and many other useful activities. The presence of Lefi Malau from Fortilos inspired many of those present in Utrecht.

New impetus

The primary aim of the conference was to facilitate discussion among the solidarity groups about new ways and opportunities to express their solidarity. From all the discussions, it was clear that the participants were very clear in their minds on how to implement the new tasks and the conference provided the important impetus for this new strategy.

It is widely acknowledged that issues like an international tribunal for East Timor or resolving the refugee problem in West Timor require huge efforts at a time when international attention towards East Timor is fading. ‘Old style’ campaigning and lobbying are still needed while many solidarity groups have joined with the East Timorese in the reconstruction and development of their devastated country. The conference drew attention to the two major tasks facing the East Timorese people: the process of reconciliation to guarantee peace with the vigilantes and Indonesia and the process of building a strong civil society and democratic institutions in East Timor.

Solidarity with East Timor now goes far beyond the formal East Timor solidarity groups. It is the task of the initiators of the Utrecht meeting to define a new and larger construction for international solidarity with East Timor, which will result in a much larger gathering in Baucau in the near future.

West Papuans vote for independence

At the end of May, the people of West Papua flocked in their thousands to an historic West Papuan People’s Congress in Port Numbay (Jayapura) and proclaimed their right to independence from Indonesia. The government in Jakarta, having failed to understand the strength of feeling in West Papua, changed direction as the meeting got underway and tried to discreditthe Congress, warning of dire consequences if the people’s aspirations are turned into positive action.

Press reports on 29 May from Jayapura described the city which West Papuans prefer to call by its former name Port Numbay as being bathed in the West Papuan ‘Morning Star’ flag, hanging from all buildings and draped on cars and fences. The Second West Papuan Congress was attended by three thousand delegates from all parts ofthe country including leading figures in the OPM and people from the diaspora. Tens of thousands more gathered in the streets, having flocked to the city from villages and towns, wishing to be present at the historic event.

Re-writing history

The Congress was held in implementation of a decision taken by a 500-strong meeting held in February this year which took a firm stand on the illegality of the so-called Act of Free Choice held in 1969. It was decided then that the main item on the agenda of the Congress would be to revise the history of West Papua, meaning in essence that the Act which resulted in West Papua’s formal absorption into the Republic of Indonesia would be declared null and void.

The February meeting set up a West Papuan Presidium Council which was charged with the task of convening the Second Papuan Congress and which appointed two leading tribal figures as co-chairmen. They are Theys Uluay who heads the officially sanctioned Irian Jaya Tribal Council, and Tom Beanal, leader of the Amungme people, who is renowned for his long battle to win recognition for his people’s rights from the giant copper-and-gold company run by the US-based Freeport and the London-based Rio Tinto.

The May/June Congress was held as a sequel to the First West Papuan People’s Congress which was held in 1961 when the territory was still under Dutch rule. That Congress declared West Papua’s independence and adopted a national flag and national anthem. Re-writing history also means acknowledging the 1961 Congress as the moment when West Papuan independence was declared. Everything that has happened since then, the New York Agreement signed in 1962 which arranged for the transfer of West Papua from Dutch to Indonesian hands, without the presence of any West Papuan representatives, the Indonesian occupation which came into effect on 1 January 1963, and the 1969 Act, are all in violation of the 1961 declaration.

The OPM which has waged an armed struggle for independence since its establishment in 1965 was also represented. It is understood that three regional commanders, Bernardus Mawen, Mathias Wenda and Kelly Kwalik were all present, while keeping a low profile. However, Bernardus Mawen who is commander of the Merauke sector, led a delegation to Jakarta to meet the Indonesian president and present the demand for independence. As always on such occasions, the president made it clear that he would never support this demand.

Quitting the Republic

On the third day of the Congress, a resolution adopted unanimously at the previous day’s working group declaring that West Papua would leave the Republic of Indonesia and set up its own state was presented to the plenary session. The resolution had been endorsed by delegations representing the fourteen districts of West Papua and was presented to a plenary session by Dicky Iwanggin who headed the delegation from Biak Numfor.

Affirming that the New York Agreement, the Indonesian occupation and the Act of Free Choice were all unlawful, the resolution declared that the decision to hand over West Papua to Indonesia was the result of a conspiracy between the Netherlands, the US and the United Nations in support of integration with Indonesia. Zakarias Soungmen, head of the delegation from Merauke said that the West Papuan Presidium Council should be instructed to negotiate with Jakarta for a Memorandum of Understanding on the transfer of power. This resolution is expected to form the core of the final decision of the Congress which ends on 3 June.

The Constitution for a future State of West Papua was also discussed at the Congress.

These decisions fly in the face of Jakarta’s intentions and are likely to lead to tensions if Jakarta adopts a confrontative stance. This now seems likely, given the statements that were made by Indonesian government ministers while the Congress was in progress.

On the third day of the Congress, West Papuan security personnel checking people as they entered the hall discovered two bombs, 14 pistols and a sharp implement. The people carrying the weapons admitted that they were acting at the behest of an Indonesian soldier. It transpired that the 14 pistols had been supplied by the ‘Red-and-White Task Force’ set up in Fakfak to oppose West Papuan security forces. Security around the Congress was very tight, with every individual being searched at all the entrances.[Tempo Interaktif, 31 May 2000]

Jakarta’s failure to understand

Since Abdurrahman Wahid took over as president in October, Jakarta has shown an startling lack of understanding about the strength of feeling in West Papua for independence. Gus Dur, as the president is popularly known, apparently thinks that by making symbolic concessions such as agreeing to rename Irian Jaya as Papua and allowing the people to ‘express their aspirations’ and ‘fly their flags’, and offering them wide-ranging autonomy, he would win the people over to remaining within the Republic. He has repeatedly stated that he would never ever allow West Papua to separate. This is also the firmly held opinion of Vice President Megawati Sukarnoputri, whose father, President Sukarno, was responsible for waging a campaignin the fifties and sixties to integrate West Papua into Indonesia, who oversaw an unsuccessful military campaign to seize the territory in the early 1960s and ordered the occupation of the territory in accordance with the terms of the 1962 New York Agreement.

At the request of the Presidium Council, Gus Dur agreed to attend the Congress on the opening day and deliver the opening address. However, he changed his mind at the last minute, on the advice of Megawati, and decided that to attend would be seen as endorsement of the pro-independence position it would adopt. However, he hadalready approved a donation of Rp1 billion (about $115,000) to help cover the costs of the gathering.

After adopting a conciliatory attitude, the government’s tone changed as the Congress got underway, and it began to hurl increasingly shrill accusations against the event. The day after it opened, Indonesia’s foreign minister, Alwi Shihab accused Australian NGOs of inciting violence in West Papua. He was quoted in the Indonesian Observer as saying: ‘Indonesia’s foreign policy places Australia as an external factor that endangers its national integrity, especially in Papua,’ and alleged that this was being done through the intermediary of Australian NGOs. John Rumbiak who heads ELS-HAM, the leading human rights organisation in West Papua, said these remarks indicated that Jakarta wants to destablise the independence congress. ‘It is possible that (the foreign minister) wants to provoke the society here.’ [Sydney Morning Herald,, 31 May 2000]

Australia has become the Indonesian government’s favourite bogeyman, ever since its armed forces intervened in East Timor last September to halt the orgy of violence there.

The following day, the Jakarta government alleged that the Congress organisers had deliberately prevented anti-independence figures from attending. ‘They have even received threats of violence,’ cabinet secretary Marsilam Simanjuntak alleged. He said that the Congress could not therefore claim to represent the Papuan people. He also said the Indonesian government lamented the presence of foreigners. ‘There is the impression that outside parties are meddling in the domestic affairs of Indonesia.’ (This wasan apparent reference to the presence of delegates from Papua New Guinea where grassroots support for the independence movement in West Papua is known to be strong, and where hundreds of West Papuans are still living as exiles and refugees.) [AFP, 31 May 2000]

A day later, the Indonesian government threatened to ‘take measures’ against the Congress if it leads to efforts the separate from the Republic. Foreign minister Alwi Shihab told a press conference in Jakarta that the president would repudiate the permission granted for the Congress to be held if the discussions ‘go too far’. He said that it would be up to the political and security section of the government to decide what action to take if ‘things went too far’. [Antara, 1 June 2000]

However, it should not have come as a surprise to the government that the Papuan People’s Congress would adopt a robust pro-independence stance and that it would focus primarily on how to proceed towards achieving that objective. The decisions of the preparatory congress held in February made that crystal clear. [See TAPOL Bulletin No 157, April 2000]

The foreign press reported that the Congress had, during the first two days, been dominated by tensions between a small number of delegates who favour immediate movement towards secession and the majority who want to pursue the creation of an independence country through dialogue and international mediation. The working group resolution to aim for a Memorandum of Understanding with Jakarta makes it clear that the second option was the unanimous position finally adopted. Moreover, both co-chairmen have made it clear on many occasions that they would pursue the path of peace in the struggle for independence.

The Second Papuan People’s Congress - which was still in progress as we went to press - is certain to result in an intensification of tensions in West Papua. The inspiration that has given to the thousands who attended, as delegates or as supporters outside the hall, is bound to be reflected in heightened demands for Jakarta and the world community to heed their demands. Those in the leadership of the movement, having decided to pursue the path of negotiation, will need to exercise all their skills and influence to keep the movement in check.

As for Jakarta, until now it seems to have believed that by letting the West Papuans let off steam - raising flags without hindrance, expressing aspirations - everything would settle down into a new, cosy relationship, with the injustices of the past forgotten.

The events that took place in Port Numbay from 29 May until 3 June mean that the people of West Papua will need the support of a much more powerful campaign of international solidarity in the months to come, to help them achieve their just demands and to campaign against human rights violations that can be expected to intensify in the coming weeks and months.

** STOP PRESS **

In a unanimous decision adopted on 4 June, the Second Papuan People's Congress decided that the state of Papua would return to its status on 1 December 1961 when the independent state of Papua was formally declared. The idea that Papua was 'leaving the Republic of Indonesia' was rejected because in the view of the Congress, it had never been a part of that country. The 1962 New York Agreement and the 1969 'Act of Free Choice' were declared invalid and pressure would be exerted on the UN to revoke the General Assembly resolution of 1969 which had sealed the country's fate as a part of Indonesia. As from 4 June, the Papuan flag, the Morning Star, would be held aloft at all times.

The Congress called for the withdrawal of all Indonesian security forces. All development activities by the Indonesian government should cease forthwith and all companies, including foreign investment, should pay taxes to the Papuan people. A 10,000 strong defence force called Satgas Papua will be formed.

The operations of Freeport copper-and-gold company much obtain consent of the local tribal council. Papuan churches should withdraw from the Indonesian Community of Churches (PGI).

The president and other senior politicians made it clear that they were implacably opposed to these decisions.

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