Statistique, Développement et Droits de l‘Homme
Session C-Pa 4d
The Measurement of Gross Human Rights
Violations in Indonesia
Atikah NURAINI
Montreux, 4. – 8. 9. 2000
Statistique, Développement et Droits de l‘Homme
The Measurement of Gross Human Rights Violations in
Indonesia
Atikah NURAINI
Information and Documentation Bureau, Indonesian National Commission of Human Rights
Jl. Latuharhary No 4B Menteng
Jakarta 10310, Indonesia
T. + 62 21 392 5230 F. + 62 21 392 5227
atikah@kamlive.com
ABSTRACT
The Measurement of Gross Human Rights Violations in Indonesia
The situation in Indonesia has reflected a complete social, political and economic instability
and the new government should seize the opportunity to embark into appropriate continue reforms
and to recover from the conflict. At the same time Indonesia is in the process to rebuild good
governance which is condition sine qua non for economic recovery. Good governance must
facilitate law enforcement, impartial judiciary system and transparency in the processes of public
policies making. Recent experiences in transition from dictatorship to democracy in Indonesia have
caused a rapid awareness of national human rights issues and principles. Although, the new
government has enacted the national bill of rights and strengthened the position of national human
rights institutions, in reality, Indonesians must confront the problem of what to do with the legacy
of massive and systematic human rights violations in the past. One of the precepts suggests that
when massive and systematic violations of the most fundamental rights occur, the state is obliged to
investigate, prosecute, and punish those responsible. Similarly, the state is obliged to reveal to the
victims and society everything known about the facts and circumstances of such violations. The
paper touches upon the indicators corresponding to the criteria and measurement of gross human
rights violations that occurred during new order regime and the transition period based on
International Covenant on Civil and Political Rights (ICCPR). The four cases reviewed are East
Timor, Aceh, Moluccas (which were known as the hottest spots provinces) and the incidents of
Tanjung Priok (1984). Those cases were handled by the National Commission on Human Rights
(Komnas HAM) as a national human rights institution supported by some national and local nongovernmental organization. Dealing with the measurement of violations, the paper deals with the
methodology of data collection and the errors that enter the process in terms of technical and
political constraints. I will also review the limited evidence on the reliability and validity of civil
and political rights in the national legislation since this Covenant is not ratified yet.
RESUME
La mesure des violations massives des droits de l’homme en Indonésie
La situation en Indonésie s‘est caractérisée par une instabilité totale au point de vue social,
politique et économique, et le nouveau gouvernement devrait saisir l'occasion pour adopter des
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réformes appropriées et continues, et remédier aux conflits. Par ailleurs, un processus
d'assainissement des procédures gouvernementales est en cours, car sans bonne gouvernance il n'y
aura pas de rétablissement économique. La bonne gouvernance doit faire respecter les lois,
garantir l'impartialité du système judiciaire et assurer la transparence des processus de définition
des politiques publiques. Les récentes expériences en matière de transition de la dictature à la
démocratie ont rapidement engendré la conscience des droits de la personne et des principes
correspondants. Bien que le nouveau gouvernement ait publié une charte des droits humains et
consolidé la position des organismes de protection de ceux-ci, en fait les Indonésiens doivent
affronter les problèmes légués par les violations massives et systématiques des droits de la
personne commises dans le passé. Selon l'une des règles à observer, quand ont lieu des violations
massives et systématiques des droits les plus élémentaires, l'Etat est tenu d'enquêter et de
poursuivre et punir les responsables. De même, il est tenu de révéler aux victimes et à la société
tout ce qu'il sait sur les faits et circonstances de ces violations. L'article traite des indicateurs et
critères employés pour l'évaluation des violations massives des droits de la personne commises
pendant le régime de l'Ordre Nouveau, ainsi que pendant la période de transition, selon les normes
du Pacte international sur les droits civils et politiques (CIDCP). Les quatre cas examinés
concernent le Timor oriental, Atjeh et les Moluques (les provinces les plus affectées), ainsi que les
incidents de Tanjung Priok (1984). Ces cas ont été examinés par la Commission nationale des
droits de la personne (Komnas HAM), institution spécialisée appuyée par certaines organisations
non gouvernementales tant nationales que locales. A propos de la mesure des violations, l'article
traite de la méthodologie de collecte des données et des erreurs intervenant dans le processus suite
à des limites d'ordre technique et politique. Je mentionne également le caractère limité de la
fiabilité et de la validité des mesures prévues par la législation nationale en matière de droits civils
et politiques, car le Pacte n'a toujours pas été ratifié.
1. Introduction
The situation in Indonesia has reflected a completely social, political and economic instability
and the new government should seize the opportunity to embark appropriate continues reforms and
to recover the conflict. At the same time Indonesia is in the process to rebuild good governance
which is condition sine qua non for economic recovery. Good governance must facilitate law
enforcement, impartial judiciary system and transparency in the processes of public policies
making.
Recent experiences in transition from dictatorship to democracy in Indonesia have caused a
rapid awareness of national human rights issue and principles. Although, the new government has
enacted the national bill of rights and strengthen the position of national human rights institution, in
reality, Indonesians must confront the problem of what to do with the legacy of massive and
systematic human rights violations in the past. One of the precepts suggest that when massive and
systematic violations of the most fundamental rights occur, the state is obliged to investigate,
prosecute, and punish those responsible. Similarly, the state is obliged to reveal to the victims and
society everything known about the facts and circumstances of such violations. The paper touch
upon the indicators corresponds to the criteria and measurement of gross human rights violations
that occurred during new order regime and the transition period based on International Covenant on
Civil and Political Rights (ICCPR) dealing with the experience of National Human Rights
Commission in Indonesia.
2. Indonesia's National Commission on Human Rights
The National Human Rights Commission in Indonesia was established in late 1993 through
a presidential order (Presidential Decree Number 50, 1993). It is composed of 25 commissioners
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who serve a five-year term (with one reappointment). There is a Plenary Commission composed of
all the commissioners, which decides on the rules of procedure of the whole commission and
approves its program of activities. The commissioners are the assigned to the three subcommissions that concentrate on the following: Education and Dissemination of Human Rights;
Examination of Human Rights Instruments; Monitoring of Human Rights Implementation. The
formation of the Commission comes at a time when the government of Indonesia has come under
increasing pressure to improve its human rights record. Serious human rights violation by the
Indonesia government have been well documented and include extra judicial killings, tortures,
unfair political trials and severe restrictions on the rights to freedom of expression, assembly and
association.
The presidential Decree sets up a National Commission to promote adherence to human
rights in Indonesia, consistent with the state doctrine of Pancasila (Five Principles) 1, the 1945
Constitution and the Universal Declaration on Human Rights. The Commission has the following
functions:
a. Disseminate information on the national and international perspectives on human rights
society and the international community
b. Provide advice to the government on accession to or ratification of the United Nations
human rights instruments
c. Monitor and provide advice on the implementation of human rights instruments by
State agencies
d. Investigate human rights violations and express opinions and suggestions to appropriate
government agencies
e. Foster international cooperation on human rights promotion and protection.
The Commission started an open dialogue with various government agencies such as the
Coordinating Ministry of Politics and Security, Headquarters of the Armed Forces, Ministry of
Labor, The Supreme Advisory Council, and the National Center for the Implementation of
Pancasila.
The Commission has received an average of more than two thousand letter-complaints per
year. There are also complaints orally received by the Commission from people who visits its
office. The letter-complaints mainly deal with land, labor, law enforcement, housing and religious
issues. Land and labor cases comprise the most number of the complaints while complaints against
members of law enforcement agencies follow next. The complaints after investigation are handled
in either of two ways:
a. Referral of the case to the government agency concerned with an appropriate
recommendation on how to resolve the issue
b. Direct arbitration and mediation between the parties involved.
According to the UN Principles relating to the Status of National Institutions for the
Promotion and Protection of Human Rights, known as the Paris Principles, a human rights
commission can play an important role in promoting and protecting human rights. To be effective,
however, a human rights commission must be:
a. Independent of government control
b. Have a clear mandate to investigate a wide range of human rights violations
c. Be composed of competent and impartial individuals not beholden to the government
d. Be sufficiently funded in a manner that does not reduce their independence
e. Have sufficient powers and expertise to investigate allegations of human rights
violations, take remedial action and induce the government to respond appropriately to
alleged violations
1
The five principles of Pancasila are Belief in one Supreme God; Justice and civility among peoples; The Unity of
Indonesia; Democracy through deliberation and consensus among Representatives; Social Justice for all.
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The power conferred on the Komnas HAM under presidential decree is minimal. Nowhere
does the decree specifically empower the commission to conduct investigations of alleged
violations of human rights or provide special powers that would assist in such investigations.
Komnas HAM not specifically empowered to hear and consider complaints, subpoena witnesses or
documents, file information with the courts, visit jail and prisons, or second police or military
investigators to provide technical expertise in investigations. Komnas HAM also not been given
power to take affirmative action on behalf of victims of human rights violations, such as by
providing interim relief or a witness protection program. This absent of powers is the strongest
obstacle for Komnas HAM to enforce human rights in Indonesia.
3. A Brief Human Rights Situation in Indonesia
The dominant feature of the 1945 Constitution of Indonesia was the 5 principles of
Pancasila. Pancasila did not ignore human rights, but allowed that freedoms it contained...”be
regulated by law”. As a result, human rights and their protection (along with the powers of the
executive, the legislature and judiciary) were subordinated to national imperative as of social
harmony and economic development – and the overriding powers of the president. There was a
classic argument that human rights were too costly for a newly emerging state, which had still to
confront an unintegrated country and economic backwards. By the terms of this argument, in the
name of unity and nation building, human rights had necessarily to be put aside.2
The 32 years of Soeharto’s New Order regime have brought political stability and economic
growth to Indonesia. This has not, however, been achieved without the use of “unfriendly” human
rights practices by the government to eliminate political dissent and to maintain social order.
Some of glaring instances of human rights violations during Soeharto’s regime include the
killing of about 100 protesters in Tanjung Priok in 1984, the arbitrary execution of thousands
suspected criminals in the Petrus Campaign, the shooting of more than 200 East Timorese in Dili 14
January 1991 which was known as Santa Cruz massacre, the suppression of dissent in Aceh during
1989-1998, the banning of media, academics, human rights activists, opposition politicians,
religious leaders and literary figures, etc.
The last couple years, although political reforms began, serious human rights violations still
continued. At least 358 prisoners of conscience were detained. Hundreds of people were briefly
detained without charge or trial. Torture and “disappearances” continued. The security forces in
suspicious circumstances have killed dozens of people. Previous cases of “disappearances” and
extra-judicial executions remained unresolved.
In March President Soeharto was re-elected for a seventh consecutive term after elections in
which he was the only candidate. Widespread protest against the re-election and disquiet over the
economic crisis culminated in demonstrations by thousands of students in the capital, Jakarta. In
May, four university students were unlawfully killed by the military in Jakarta. On 21 May
President Soeharto resigned and his deputy, B.J. Habibie, became President, promising political and
economic reforms. In November new laws covering elections, parliament and the formation of
political parties were approved in principle and dates were set for parliamentary and presidential
elections in 1999.
In April 1998, The UN Commission on Human Rights made a statement criticizing
Indonesia's lack of implementation of recommendations contained in previous statements and
resolutions from the Commission. The statement, which was accepted by the Commission's member
states, also noted Indonesia's invitation to the UN Working Group on Arbitrary Detention to visit
East Timor before the next session of the Commission.
Todung Mulya Lubis, In Search of Human Rights: Legal-Political Dilemmas of Indonesia’s New Order, 1966-1990,
Jakarta: Gramedia, 1993, p.74
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In May the government ratified the ILO Convention No. 87 concerning Freedom of
Association and Protection of the Right to Organize. In June the government announced a National
Plan of Action on Human Rights, committing Indonesia to ratify major human rights treaties over a
five-year period. In October Indonesia ratified the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. 3
In Aceh over several years of counter-insurgency operations by the armed forces,
concluding that at least 700 people had been unlawfully killed by the military.4 Dealing with the
political prisoners, at least 179 Indonesian and East Timorese political prisoners, including
prisoners of conscience, were released, had charges against them dropped or parole restrictions
lifted in a program ordered by the President Habibie. However, during 1998 hundreds of people
were subjected to short-term arbitrary detention. In East Timor, at least 64 people were arbitrarily
detained by the military in July for alleged links to armed opposition groups, despite the fact that
the military has no legal authority to conduct arrests.
Torture, ill treatment, and enforced disappearances continued to be reported throughout
Indonesia and East Timor during the year. By the end of the year, the whereabouts of 13 political
activists remained unknown. Five had “disappeared” in 1998, eight “disappeared” during the
political crisis in early 1998, who were taken into military custody in February and March. In East
Timor, at least eight people and possibly as many as 32 “disappeared” after being arrested by the
security forces.
4. Gross Human Rights Violations: Theoretical Framework
The gross violations of human rights, particularly but not exclusively relating to genocide,
torture, disappearances, summary and arbitrary executions, arbitrary and prolonged detention,
slavery and slave-like practices and systematic discrimination when left unaddressed result in a
culture of impunity, which is one of the most serious obstacles to a transition to democracy.5
According to Theodoor Van Boven, if we read again the Preamble of UN Charter, the theory
of humanitarian intervention consider to large-scale violation of very elementary rights under
certain conditions a legitimate ground for armed intervention. This is that part of human rights law
which does not permit any derogation even in time of armed conflict or in other public emergency
situations threatening the life of the Nation. For example, the Article 3 of the Four Geneva
Conventions of 1949, setting out a number of minimum humanitarian standards which are to be
respected in cases of conflict, which are not of an international character, enumerates certain acts
which “are and shall remain prohibited at any time and in any place whatsoever.” 6 The universal
validity of these fundamental prescriptions is underlined by the words “at any time and any place
whatsoever” in this common article of the four 1949 Geneva Conventions.7
The clear definition of fundamental rights which often connecting gross violations of human
rights also can be found at the International Covenant on Civil and Political Rights. This Covenant
3
The Indonesian National Commission on Human Rights, Annual Report, 1998
The Indonesian National Commission on Human Rights, Annual Report, 1998
5
Iris Almeida, "Compensation and Reparation for Gross Violations of Human Rights: Advancing International
Discourse and Action", Conference Paper on Reining in Impunity for International Crimes and Serious Violations of
Fundamental Human Rights, Italy: International Institute of Higher Studies in Criminal Sciences, 1997.
6
The Acts are mentioned: “a) violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment
and torture; b) taking of hostages; c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized nations.”
7
Theodoor Van Boven, in The International Dimensions of Human Rights, edited by Karel Vasak, Vol.I, Paris: Unesco,
1982, p.45
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enumerates at article 4, para.2, "the rights from which no derogation is allowed in time of public
emergency."8
5. The Measurement of Violation: Needs and Obstacles
There is a great need for scientific methods of quantitative analysis in the presentation and
preparation of human rights report. What Komnas HAM is doing for handling gross human rights
violations is establishing an ad hoc committee for each outstanding cases, such as East Timor,
Tanjung Priok or Aceh. However, the problem of documentation always happens in terms of
collecting, organizing, analyzing and reporting data, since Komnas HAM has not have any fixed
system for its documentation and still consider some appropriate system for different cases. For
example, on East Timor case Komnas HAM has a collaboration with HURIDOCS and is using this
system to document the victims and events happened in East Timor before they come up with the
conclusion for the perpetrators and asking for government responsibility. Before using HURIDOCS
for its system, the documentation was done manually and Komnas HAM faced some difficulties in
terms of accuracy, authenticity and consistency as well.
The needs for measurement of gross human rights violations for Komnas HAM are:
a. The standard rule that all representation of the victim must not be separated from the
information about who committed the violation, when and where it happened. The
connection must be made at the level of the violation (the act), because any other level
leaves open the possibility of confusing who did what to whom.
b. Security and authenticity are crucial problems for Komnas HAM. Basically, both
problems are solvable but Komnas HAM must be willing to be disciplined and they
must develop security routines and use them for all of their correspondence.
c. Patterns of violation of human rights will be useful to identify the perpetrators or groups
of victims. Many for of pattern can have utility. A rise in violation when a particular
individual or group is active in a region, a disproportionate level; of violations in a
particular region or among members of a particular ethnic group, a consistent mode of
behavior and many other patterns can be useful in targeting perpetrator suggesting
sources of violations. However, statistical evidence of a pattern is not proof of a causal
relationship.
d. Lastly, even incomplete and distorted data can still provide evidence of human rights
violations when the data are properly analyzed. Examples of inferences from
incomplete and distorted data using data availability, mortality statistics, burial time
series, health statistics, economic data and event reports in a number of cases have been
given are valuable data can be used by Komnas HAM to strengthen the field data.
6. Next Problem?
Indonesia is a country with a problem of law enforcement. Even though many parties now
have the courage to open all the tendencies towards misuse of power by the authorities and Komnas
HAM committed to human rights implementation, several problems would happen dealing with
unclear and uncertain legal process, especially to give a proper punishment and compensate the
victims.
8
The right to life (article 6), the right not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment (article 7), the right not to be held in slavery or servitude (article 8 paras.1and 2), the right not to be
imprisoned merely on the ground of inability to fulfill a contractual obligation (article 11), the prohibition to retroactive
application of criminal law (article 15), the right to recognition everywhere as a person before the law (article 16) and
the right to freedom of thought, conscience and religion (article 18). Regional human rights conventions contain a
similar clause enumerating provisions from which no derogation maybe made. 8
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One of the problems that lead to incomplete law enforcement in various cases of misuse of
power is that there is no procedural mechanism to urge an investigation into the problem. A police
investigation of a suspected crime carried out by a legislator is instigated according to Law No.
13/1970.
For a judicial official, there is also a formal rule regulating the instigation of an
investigation. From a Supreme Judge to the Chief justice, they can be caught or arrested on the
orders of the Attorney General with permission from the president. If an arrest order is followed by
an arrest, a Supreme Court judge has to resign temporarily from his position (Law No. 14 / 1985).
His resignation comes on the orders of the president and is suggested by the Chief Justice.
Meanwhile, judges of other courts can be caught and arrested on the orders of the Attorney General
with permission from The Chief Justice and Minister of Law and Legislation (Law No. 2 / 1986).
There is also a big question in terms of criminal procedures being taken against the
executive and the political punishments if the crime is proved. Until now, there are no laws
regarding a procedure to investigate the president or his ministers. In fact, there are no laws
regarding the executive at all. As I mentioned earlier, the problem of human rights violations
always connects to the issue of impunity.
REFERENCES
Almeida, Iris, "Compensation and Reparation for Gross Violations of Human Rights: Advancing
International Discourse and Action", Conference Paper on Reining in Impunity for International
Crimes and Serious Violations of Fundamental Human Rights, Italy: International Institute of
Higher Studies in Criminal Sciences, 1997
Ball, Patrick, Who Did What to Whom: Planning and Implementing a Large Scale Human Rights
Data Project, Washington: AAAS, 1996
van Boven, Theodoor, in The International Dimensions of Human Rights, edited by Karel Vasak,
Vol.I, Paris: Unesco, 1982, p.45
The Indonesian National Commission on Human Rights, Annual Report 1994-1998, Jakarta:
Komnas HAM, 1994-1998
Lubis, Todung Mulya, In Search of Human Rights: Legal-Political Dilemmas of Indonesia’s New
Order, 1966-1990, Jakarta: Gramedia, 1993, p.74
The United Nations, A Compilation of International Instruments, Geneva: UN, 1988
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