INDONESIA Comments on the draft law on Human Rights Tribunals

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1 INDONESIA Comments on the draft law on Human Rights Tribunals Amnesty International welcomes the commitment by the Republic of Indonesia to ensure that persons responsible for gross violations of human rights are brought to justice, as indicated by the draft law concerning Human Rights Tribunals. The establishment of Human Rights Tribunals (Tribunals) to try alleged perpetrators of gross violations of human rights was originally provided for under Legislation Number 39 of 1999 concerning Human Rights which required such a Tribunal to be established within four years. In the wake of the human rights crisis in East Timor in September 1999 a Presidential Decree, Perpu No 1/1999, was introduced by former President Habibie which legislated for the establishment of the Tribunal. Under the current government of President Abdurrahman Wahid, it was decided to base the Tribunal in law rather than on a presidential decree. It was also considered that Perpu No 1/1999 was inadequate and that new legislation should be drafted. For the sake of formality Perpu No1/1999 was submitted to Indonesia s parliament, the Peoples Representative Assembly (DPR). However, on the advice of the government the DPR rejected it in March 2000 to make way for a new, more comprehensive, draft bill. Version ten of this draft legislation - on which the comments in this document are based - was submitted to the DPR in May It is expected to be discussed during the current session of parliament. There has been much discussion, and some controversy, over the drafting of the current legislation on the Tribunal. Much of the debate has focussed around the issue of whether it would be retrospective. The authority of the Tribunal to try past cases of gross human rights violations has particular resonance because it was on the basis the Presidential Decree, Perpu No 1/1999, that the Commission of Inquiry on Human Rights Violations in East Timor (Komisi Penyelidik Pelanggaran HAM di Timor-Timur - KPP HAM) was established in September 1999 and carried out its investigations. 1 However, the implications of the debate on providing justice and establishing accountability for past violations goes far beyond East Timor. In Indonesia itself there are many thousands of unresolved cases of extrajudicial execution, disappearance, torture including rape, arbitrary arrest and other human rights violations from previous years. Under the current draft, the Human Rights Tribunal will not have the authority to try past cases. However, provision is made for ad hoc Human Rights Tribunals to address these cases to be established by Presidential Decree upon the recommendation of the DPR. 1The Commission of Inquiry on Human Rights Violations in East Timor (KPP HAM) was established on 22 September 1999 under National Commission of Human Rights (Komnas HAM) to carry out an inquiry into human rights violations that occurred in East Timor from January 1999 to 19 October The report of the results of the investigation was submitted to the Attorney General in January 2000 who appointed a 64-person team to carry out investigations and prosecutions in April The investigations were still ongoing at the time of writing. Amnesty International June 2000 AI Index: ASA 21 /25 /00

2 1 Human Rights Tribunal Amnesty International recognizes that the establishment of Human Rights Tribunals and ad hoc Tribunals to try past cases are a part of the Indonesian Government s efforts to fulfil its responsibility to prosecute perpetrators of human rights violations. The organization considers that ideally such cases should be handled by ordinary courts governed by procedures which satisfy international standards including the professionalism, impartiality and independence of judges. The establishment of Human Rights Tribunals to try both past and future cases of gross human rights violations are welcome to the extent that they are a step in the direction of achieving this goal. The Human Rights Tribunals are intended to have jurisdiction over gross violations of human rights, it will therefore also be necessary to ensure that there is effective remedy for human rights violations which are not considered to be gross, but are nevertheless human rights violations. Provision must be made within the existing judicial and legal system to investigate and prosecute alleged perpetrators of such crimes in processes which meet international standards for fair trial. The initiative to establish a Human Rights Tribunal should therefore be regarded as a part of the much broader process of judicial and legal reform in Indonesia. Such reform is required to establish a fair and independent judicial system capable of prosecuting perpetrators of human rights violations in accordance with international standards for fair trial. This is a critical moment for Indonesia as it continues down the path to democratic reform. Addressing and making amends for its repressive past and establishing accountability to the law are important elements of this process. Credible prosecutions of both past and future cases of human rights violations will be a crucial test of the government s commitment to reform. Proceedings which fall short of international standards for fair trial will serve neither the interests of justice nor the broader objective of strengthening Indonesia s judicial system. Amnesty International has a number of concerns about the current draft legislation for the Tribunals. The organization hopes that the following preliminary comments concerning definitions of gross violations of human rights, and the procedure to be followed by the Human Rights Tribunals, will be of use in revising the current text to ensure that it is consistent with international law and standards. The following comments are based on an informal English translation of the draft law, not on the original text. A copy of the translation is attached to this report. AI Index: ASA 21 /25 /00 Amnesty International June 2000

3 Human Rights Tribunal 1 1. General Provisions The draft legislation for the Human Rights Tribunals establishes the jurisdiction of the Tribunals over gross violations of human rights, which it goes on to define in various articles contained in Chapter I on General Provisions. Amnesty International is concerned that some of the definitions lack sufficient precision for a criminal code or are inconsistent with international law. Specifically, Amnesty International would like to draw attention to the following articles: Articles 2 and 3 - gross violations of human rights According to Article 2, Chapter I of the draft legislation a gross violation of human rights is a violation of human rights which causes physical or mental suffering, or material or nonmaterial loss, and which induces a feeling of insecurity of a person or society. Article 3 refers to Article 5, Chapter II to provide details of what constitutes a gross violation of human rights. In Amnesty International s view it is unclear whether the broad description of gross violations of human rights provided in Article 2 is an integral part of the definition of the individual crimes listed in Article 5, Chapter II which the prosecution must prove. The organization is concerned that the broad wording of Article 2 could mean that it might encompass conduct which is not ordinarily considered as criminal. Greater clarity on the relationship of Articles 2 and 3 of Chapter I and Article 5 of Chapter II and their scope would appear to be necessary (specific comments on Article 5, Chapter II are given below). Article 4 - Enslavement Article 4, Chapter I refers to enslavement which it defines as... an act of an individual or a group of people which induces or causes another individual or group against their will to be in a position or condition in which the perpetrator exercises power of ownership over the individual or group and or perpetrates acts which degrade their human dignity and worth, as if they were not human. Amnesty International notes that the first part of the definition of enslavement under Article 4 appears to be largely consistent with international law concerning contemporary forms of slavery, as reflected in the 1926 Slavery Convention, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery and Article 7 (1) (c) and (2) (c) of the 1998 Rome Statute of the International Criminal Court (Rome Statute). However, the organization is concerned that the term, perpetrates acts which degrade their human dignity or worth, as if they were not human, while being a normal characteristic of many acts of enslavement, is not an element of the crime and it would appear to be too broadly worded to satisfy the requirements of legality in a criminal statute. Article 5 - Discrimination Amnesty International June 2000 AI Index: ASA 21 /25 /00

4 1 Human Rights Tribunal Article 5, Chapter I refers to discrimination which it defines as... all restriction, degradation, or isolation, both direct and indirect, based on differentiation of humans on grounds of religion, ethnicity, race, group, faction, social or cultural status, economic status, sex, language, or political belief, that results in the reduction, contravention, or revocation, of the recognition, execution, or application of human rights and basic freedoms in political, economic, legal, social, cultural, or any other aspects of individual or collective life. Amnesty International considers that the definition of discrimination to include, all restriction, degradation, or isolation, both direct and indirect, based on differentiation of humans, on certain prohibited grounds which, results in the reduction, contravention, or revocation, of the recognition, execution, or application of human rights and basic freedoms, to be very broad for a criminal statute which would impose penalties of up to 12 years in prison (Chapter VI, Article 31). The organization notes that this definition might be considered to include conduct which would better be addressed through civil, or non-judicial remedies. Article 6 - Torture Article 6, Chapter I defines torture as all acts that cause severe pain or continuous physical and/or mental suffering of a person for the purposes of obtaining a confession or information, punishing a person extra-judicially, or intimidating or forcing a person without reason and based on any form of discrimination, which are perpetrated horizontally or vertically by the state apparatus or another person with the authority or acquiescence of the state apparatus. Amnesty International is concerned that the definition of torture contained in Article 6 is not consistent with the definition of torture in Article 1 of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), a definition which is now considered to reflect international law. Under this article torture is defined as,... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.... In relation to Article 6 of the draft Human Rights Tribunal legislation, Amnesty International is specifically concerned that the requirement that the acts cause, continuous physical and/or mental suffering, is too restrictive and notes that there is no such requirement in international law. In addition, the requirement that the infliction of pain or suffering can only be for one of the three purposes listed is more restrictive than in Article 1 of the Convention against Torture, which makes clear that the list of purposes is illustrative and not exhaustive. Furthermore, the requirement that torture has been inflicted as the result AI Index: ASA 21 /25 /00 Amnesty International June 2000

5 Human Rights Tribunal 1 of discrimination is much more restrictive than the definition in Article 1 of the Convention against Torture and would exclude torture for other reasons. Amnesty International recommends that definition in Article 6, Chapter I be amended so that it is consistent with that in the Convention against Torture. Article 8 - Definition of a person Article 8, Chapter I defines a person as it is referred to in the draft legislation as, an individual, group of people, civil or military, the police, or state apparatus. Amnesty International believes that the Human Rights Tribunal should have criminal jurisdiction over individuals, rather than groups as its purpose is to establish individual responsibility for gross violations of human rights. In Amnesty International s view it would be more appropriate to subject groups, such as the military, the police and state institutions, to civil rather than criminal responsibility. In doing so, however, it will be essential not to overlook the pressing need to reform groups and institutions the members of which have been involved in human rights violations in order to prevent such violations from occurring again. 2. Status and Location of Human Rights Tribunals Articles 3 and 6 - territorial jurisdiction Articles 3 and 6, Chapter II define the judicial territory of the Human Rights Tribunal. Article 3 limits the jurisdiction of each Human Rights Tribunal to the judicial territory in which it sits, subject to Article 6, which permits a Human Rights Tribunal to exercise jurisdiction over cases of gross violations of human rights committed by Indonesian citizens outside the geographical territory of the Republic of Indonesia. Amnesty International is concerned that such a limitation of jurisdiction is inconsistent with international law. International law permits - and in some cases requires - states to exercise universal jurisdiction over persons suspected of crimes under international law who are found in their territory or to extradite the suspect to another state able and willing to prosecute alleged perpetrators. Such crimes would include genocide, crimes against humanity, war crimes, torture, extrajudicial executions and forced disappearance. Therefore, for example, State Parties to the Geneva Conventions of 1949 and Protocol I, and to the Convention against Torture have this obligation. Amnesty International notes that Indonesia is a State Party to both of these. Article 5 - crimes over which the Human Rights Tribunal has jurisdiction Article 5, Chapter II lists the individual crimes included under the term gross violations of Amnesty International June 2000 AI Index: ASA 21 /25 /00

6 1 Human Rights Tribunal human rights. In order of the crimes listed Amnesty International has the following comments: Genocide Paragraph (a), Article 5 refers to [e]very action intended to destroy or exterminate in whole or in part, a national group, race, ethnic group, religious group, or any other group which also has different colour, gender, age physical and/or mental disabilities, by: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to induce its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and/or forcibly transferring children of a particular group to another group. Amnesty International notes that Paragraph (a) is largely consistent with the definition of genocide in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), which reflects customary international law. 2 However, it does vary from that definition in some places. To the extent that it protects more groups, that expansion is a positive step. However, Paragraph (a) fails to include the ancillary crimes of genocide in Article III of the Genocide Convention. These ancillary crimes are: Conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; and complicity in genocide. Amnesty International considers that these ancillary crimes should be included in the legislation on the Human Rights Tribunal. Crimes against Humanity Paragraphs (b) to (i) Article 5, Chapter II broadly correspond with the definition of crimes against humanity. Crimes against humanity recognized by international law include genocide, the practice of systematic or widespread murder, torture (including rape), forced disappearances, deportation and forcible transfers, arbitrary detention, political persecutions and other inhumane acts. Each of these crimes against humanity has been recognized as a crime under international law in international conventions or other international instruments, most recently in the Rome Statute. 2Article II of the Genocide Convention defines genocide as...[a]ny acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about it physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. AI Index: ASA 21 /25 /00 Amnesty International June 2000

7 Human Rights Tribunal 1 Paragraph (b), Article 5 refers to arbitrary killing of a person or group of people in an inhumane and/or extra-judicial manner. Amnesty International welcomes the inclusion in Paragraph (b) of extrajudicial executions as a crime. However, the organization considers that it should be defined with more precision to comply with the principle of legality in a manner similar to normal definitions of homicide. Paragraph (c), Article 5 refers to all forms of acts which enforce the incident of migration or displacement of a person or group of persons on the base of political reasons. The inclusion of forced migration and displacement as a crime is a positive step, but it is not clear what the elements of the crime are which must be proven by the prosecutor. In addition, Amnesty International is concerned that it may be too limiting to restrict this crime to forced migration or displacement based on political grounds. In Amnesty International s experience, such forced movement of persons is often based on other grounds, such as religion, nationality or ethnicity. Paragraph (d), Article 5 refers to abduction and/or enforced disappearance of a person. Amnesty International also welcomes the inclusion of the crime of abduction or enforced disappearance. However, Paragraph (d) does not adequately define the crime. Amnesty International recommends that abduction and enforced disappearance should be defined in more detail and that the definition should be consistent with international law, in particular, the UN Declaration on the Protection of All Persons from Enforced Disappearance, the Rome Statute and the Inter-American Convention on the Forced Disappearance of Persons. Under Article 7, paragraph 2 (i) of the Rome Statute, enforced disappearance is defined as...the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate and whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. The Inter-American Convention on the Forced Disappearances of Persons has a similarly detailed definition of disappearance under Article II. It states that enforced disappearance is considered to be an...act depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge the deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees. Paragraph (e), Article 5 relates to enslavement. The relationship between Article 4 of Chapter I and Paragraph (e) on enslavement should be clarified and the concerns relating to the former provision be addressed (see above for comments on Article 4, Chapter I). Amnesty International June 2000 AI Index: ASA 21 /25 /00

8 1 Human Rights Tribunal Paragraph (f), Article 5 refers to systematic discrimination of a person or group. Similarly, the relationship of the definition of discrimination in Paragraph (f) to the definition in Article 5 of Chapter I should be clarified and the concerns in the latter provision addressed. In addition, Amnesty International is concerned that the term systematic is more restrictive than in the definition of crimes against humanity in Article 7 of the Rome Statute, which refers to persecution which is part of a pattern of systematic or widespread crimes against humanity. Paragraph (g) on torture. Amnesty International recommends that the relationship between Article 6 of Chapter I and Paragraph (g) on torture should be clarified and the concerns in the former provision relating to the definition of torture be addressed. Paragraph (i) relates to systematic and mass rape, including other acts of sexual harassment that violate social and religious norms, of a particular group or social class. The inclusion of the crime of systematic and mass rape is to be welcomed. However, Amnesty International is concerned that the requirement that rape be both systematic and mass rape is much more restrictive than in the definition of this crime in Article 7 of the Rome Statute which gives the International Criminal Court jurisdiction over individual cases of rape and other forms of sexual violence committed as part of a systematic or widespread pattern of crimes against humanity. The definition of the war crime of rape in Article 8 of the Rome Statute is also broader. It gives the International Criminal Court jurisdiction over individual cases of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or of common Article 3 of those Conventions. 3. Inquiry, Investigation, Prosecution, and Hearings in Court Session General Article 7 - procedures Article 7, Chapter IV states that, unless otherwise provided for in the Act... inquiries, investigations, prosecutions and hearings in court session of cases of gross violations of human rights shall be conducted according to prevailing judicial procedure. Amnesty International welcomes this requirement, which it considers will minimize the danger that the Human Rights Tribunal could operate as a special court which does not use established procedures and which displaces the jurisdiction belonging to ordinary courts and tribunals. This would be contrary to the requirements recognized in Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR) for independent, impartial and competent tribunals, and in Principle 5 of the UN Basic Principles on the Independence of the Judiciary which states that, [e]veryone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures AI Index: ASA 21 /25 /00 Amnesty International June 2000

9 Human Rights Tribunal 1 shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. However, Amnesty International has two concerns. First, there are a number of aspects of Indonesia s ordinary criminal procedure code (KUHAP) which are contrary to the internationally recognized right to fair trial, such as the absence of a legal obligation to present an arrested person promptly before a judicial authority (for further comments see below under Article 17 - arrest and detention of suspects). Second, as indicated in this document, there are a number of aspects of the proposal for a Human Rights Tribunal which are inconsistent with the right to fair trial, such as the method of selecting and dismissing judges. Amnesty International urges that the necessary amendments are made to both KUHAP and the legislation for the Human Rights Tribunal to bring them into conformity with international standards for fair trial. Inquiry Article 8 - the role of the National Commission on Human Rights (Komnas HAM) Article 8, Chapter IV relates to the role of the National Commission on Human Rights (Komnas HAM) in inquiries into cases of gross violations of human rights. According to the article, inquiries into cases of gross violations of human rights may only be conducted by Komnas HAM, which may form an ad hoc team to carry out the inquiry. Amnesty International is concerned that Komnas HAM is the sole body empowered to initiate and carry out the preliminary inquiry into alleged cases of gross human rights violations. The organization considers it is necessary to clarify that although Komnas HAM may be mandated to conduct preliminary inquiries, this does not limit the ability of prosecutors to conduct such inquiries. A restriction on the ability of prosecutors to conduct inquiries could be inconsistent with their independence and contrary to the UN Guidelines on the Role of Prosecutors, if this restriction limited their ability to select cases for investigation under Article 11, Chapter IV (see below for comments on Article 11). Paragraph (4), Article 8 requires members of the ad hoc inquiry team to take an oath or pledge according to their respective religions. A similar oath is required of ad hoc public investigators and ad hoc Public Prosecutors (Chapter IV, Article 10, Paragraph (4) and ad hoc judges (Chapter IV, Article 28). Oaths will also be required of defendants and witnesses, some of whom may be aliens and may not conform to one of the five religions recognized by Indonesia. Amnesty International notes that Article 45 of the Rome Statute of the International Criminal Court simply provides for a solemn undertaking to exercise one s functions impartially and conscientiously. The organization recommends that consideration is given to including provision for individuals of no religion to take an appropriate oath or pledge before the Tribunal. Article 9 - follow up to Komnas HAM inquiry Amnesty International June 2000 AI Index: ASA 21 /25 /00

10 1 Human Rights Tribunal Article 9, Chapter IV provides guidelines on the submission of the results of a Komnas HAM inquiry on a case to the investigation body. According to the article, if Komnas HAM decides that there is sufficient preliminary evidence, the findings of the inquiry must be submitted to the investigation body within seven days and followed up within 14 days by the investigation body. Although Amnesty International favours steps to encourage speedy investigations and prosecutions, they should not be at the expense of thoroughness and due process, the organization is concerned by time restrictions imposed in this article. It considers the deadline of 14 days for following up the findings of the inquiry by Komnas HAM by the investigation body to be too short. Many of the cases which will come under the jurisdiction of the Human Rights Tribunal will present complex factual questions and difficulties in locating and protecting witnesses. Any deadline should be realistic and flexible, permitting the Human Rights Tribunal to extend that deadline whenever it is necessary. Amnesty International notes that the problem of excessively rigid and short deadlines is one found throughout the proposed legislation. Investigation Article 10 - investigation and prosecution by the Attorney General Paragraph (1) of Article 10, Chapter IV stipulates that the investigation and prosecution of gross human rights violations shall be undertaken by the Attorney General. Amnesty International is concerned that, because the Attorney General is a State Minister and political official, there is a danger that decisions on whether to open an investigation and to prosecute could be perceived as politically motivated if there are not sufficient safeguards to ensure that these decisions are made on neutral criteria, such as the sufficiency of admissible evidence. In Amnesty International s opinion it would be more consistent with the appearance of impartiality if decisions on whether to investigate or prosecute were made by the relevant prosecutor, subject to review by the Attorney General under strictly objective, legal criteria. Consideration should be given to the establishment of an internal advisory board to provide advice on such decisions to the Attorney General. Article 11 - time limits on investigations and procedures for terminating an investigation Under Paragraph (1) and (2 ) of Article 11, Chapter IV it is stipulated that the investigation process should be completed within 90 days - extendable by no more than 90 days - of the receipt of the inquiry findings. As stated above in relation to Article 9, the deadline in this article is too short and rigid. Investigations of such cases in other countries and by the International Criminal Tribunals for the former Yugoslavia and Rwanda have often taken more than a year. Amnesty International therefore recommends that the period of 90 days for an investigation should be extended and be made more flexible to allow further time for investigation when necessary. The need for realistic deadlines for an investigation must also be balanced with the rights of the accused in pre-trial detention. It is necessary to make every effort to avoid prolonged pre-trial detention. However, in cases where additional time is required for investigation, or for the prosecution to prepare the case, the problem could be addressed by a

11 Human Rights Tribunal 1 using variety of methods to ensure that suspects are not held in detention any longer than necessary and that persons at liberty will be available for trial. Paragraphs (3) and (4) relate to the termination of an investigation. Under these paragraphs it is stated that the investigation should be terminated if sufficient evidence is not obtained during the designated time and that an investigation can only be reopened if new evidence is submitted. Paragraph (5) makes provision for a victim or their relatives to submit a pre-trial request to the Human Rights Tribunal in the event that they disagree with a decision to terminate the investigation. Amnesty International notes that although some degree of finality with respect to an investigation may be desirable, the need for such finality is not the same as with respect to challenges to a conviction. Therefore, the standard for reopening an investigation should simply be for good cause, leaving it to the discretion of the prosecutor, subject to judicial review. In addition, a friend of the victim or his or her lawyer, as well as the victim s family, should be able to request a review of a decision to terminate an investigation. The Human Rights Tribunal should be able to request a prosecutor to review a decision not to investigate or prosecute a case, but it should not be permitted to order the prosecutor to prosecute a case. Article 12 - compensation, restitution and rehabilitation The recognition of the right of victims and their beneficiaries to compensation, restitution and rehabilitation contained in Article 12, Chapter IV is welcome. However, the scope of the right to reparation is now recognized as broader and it would be better to state that every victim or his or her beneficiaries has the right to reparations, including compensation, restitution and rehabilitation. The scope of the right to reparations is spelled out in the Joinet Principles and the Van Boven-Bassiouni Principles. 3 According to Paragraph 15 of the Van Boven-Bassiouni Principles, [a]dequate, effective and prompt reparation shall be intended to promote justice by redressing violations of international human rights or humanitarian law. Reparations should be proportional to the gravity of the violations and the harm suffered. The Principles make provision for three types of action: Restitution with a view to seeking to restore victims to their previous situation before the violation occurred, including restoration of liberty, legal rights, social status, family life and citizenship, return to one s place of residence, and restoration of employment and return of property (Paragraph 22); Compensation for any economically assessable damage including for physical or mental injury, lost opportunities including education, material damages and loss of earnings, including loss of earning potential, harm to reputation or dignity and legal 3 Question of the impunity of perpetrators of human rights violations (civil and political), Final Report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, Annex II: Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (Joinet Principles), Principles 36 to 50, U.N. Doc. E/CN.4/Sub.2/1997/20 (1997); UN Commission on Human Rights Independent Expert on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms, Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of International Human Rights and Humanitarian Law (Final Draft), 18 January 2000 (Van Boven-Bassiouni Principles), U.N. Doc. E/CN.4/2000/62/Rev.1 (2000).

12 1 Human Rights Tribunal aid costs (Paragraph 23); Rehabilitation, which should include medical and psychological and psychiatric treatment (Paragraph 24). The Joinet Principles also refer to symbolic measures which provide collective moral reparation, such as formal public recognition by the State of its official responsibility for violations of international human rights or humanitarian law. Article 13 - witness protection The provision for protection of witnesses in Article 13, Chapter IV is an essential requirement if the Human Rights Tribunal - or any court investigating human rights violations - is to succeed. Amnesty International is encouraged that, in the absence of an existing witness protection program in Indonesia, that provision is made in this draft legislation for procedures to be developed under a separate government regulation. The Human Rights Tribunal should be able to ensure that all necessary and effective measures are taken to protect victims and witnesses for both the defence and the prosecution from unnecessary anguish and intimidation. These measures should encompass protection before, during and after the trial, until the security threat ends. It is also essential to provide protection to any person who assists the inquiry, including persons interviewed by prosecutors or the defence, experts (such as forensic experts) assisting the Human Rights Tribunal and staff of the Human Rights Tribunal. In order for a witness protection program to be effective it must be provided with sufficient resources including professional personnel with experience and expertise in the field of witness protection. In view of the nature of the crimes which fall within the jurisdiction of the Human Rights Tribunal, including rape and other forms of sexual violence, they should include persons with relevant experience in dealing with victims of sexual violence, gender violence and violence against children. Article 14 - time restrictions on prosecution Article 14, Chapter IV limits the period from the receipt of the investigation findings to prosecution to 30 days. Notwithstanding the right of anyone charged with a criminal offence to be tried without undue delay, Amnesty International considers that the 30-day deadline is unnecessarily limiting. The period should be longer and subject to extension by good cause. Article 15 - terminating a prosecution Under Paragraph (1) of Article 15, Chapter IV the decision to terminate a prosecution for lack of sufficient evidence rests with the Attorney General. In Amnesty International s view, in order to avoid perceptions of partiality, decisions whether to terminate a prosecution should be made by the prosecutor, not by a state minister or political official. Article 15 should therefore be amended to protect the independence of the prosecutor, as required by the UN Guidelines on the Role of Prosecutors Article 11 of which stipulates that [p]rosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decision and the exercise of other functions as representatives of

13 Human Rights Tribunal 1 public interest. Amnesty International welcomes the requirement under Paragraph (2) of this article that notice of the termination of a prosecution is made public. It also considers the recognition, under Paragraph (3), of the right of the victim or family of the victim to contest the termination to be important. However, Amnesty International recommends that this right to contest a decision to terminate a prosecution should be extended to include friends of the victim and lawyers for the victims, relatives or friends. In addition, Amnesty International recommends that this paragraph be amended so that the remedy should be limited to requiring the prosecutor to reconsider the decision. Article 17 - arrest and detention of suspects According to Paragraph (2), Article 17, Chapter IV procedures for arrest, detention, and other means of constraint should be in accordance with prevailing legislation and law. Amnesty International recognizes that Indonesia s Code of Criminal Procedure (KUHAP) provides many safeguards for the protection of the rights of detainees and defendants. However, there are a number of deficiencies in both the legislation and the manner it has been applied which continue to be of concern. Concerns relating to the legislation include the length of permissible delay during the preliminary inquiry before the authorities are obliged to present a detainee before a prosecutor (60 days) and before a judge (170 subsequent days). In its 1999 report the Working Group on Arbitrary Detention noted that such delays with regard to a person in detention were inconsistent with Article 9, Paragraph 3, of the ICCPR which states that, [a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release In many cases, Amnesty International has observed that it is not deficiencies in the legislation that undermine the process of fair trial. Rather key provisions in KUHAP are ignored due to poor practice or inadequate safeguards to ensure their application. For example, in relation to torture and ill-treatment, KUHAP forbids the use of duress to extract information from a suspect or witness, but there is no clear rule excluding the use in court of evidence or testimony improperly obtained by the authorities. Article 15 of the Convention against Torture expressly provides that [e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. In the absence of effective legal sanctions against non-compliance with this provision there have been many cases in which evidence or testimony obtained under duress has been admitted in court and complaints by the accused or witnesses have been ignored. Other common irregularities documented by Amnesty International include denial of access to a lawyer, despite the provision under Article 54 of KUHAP which guarantees the right of every detained person to obtain legal counsel. In addition there continue to be cases of arrests carried out without warrants; denial of the right for detainees to access relatives; 4Report of the Working Group of Arbitrary Detention on its visit to Indonesia (31 January-12 February 1999), E/CN.4/2000/4/Add.2, 12 August 1999.

14 1 Human Rights Tribunal failure to inform detainees of the reason for their arrest or the charges against them; failure to provide notification of prolongation of detention; and lack of time or access to documentation to prepare a defence. Prosecution Article 18 - prosecution According to Article 18, Chapter IV, prosecution of cases of gross human rights violations will be conducted by the Public Prosecutor. Paragraph 2 of this article permits the Attorney General to appoint ad hoc Public Prosecutors for particular cases. Amnesty International considers that if appointments are made by the Attorney General, there is a risk that such appointments will be perceived as being politically motivated. Any perception that appointees could be subjected to political or other pressures would be inconsistent with the requirement of a prosecutor to decide which cases to prosecute on an independent and impartial basis. Amnesty International recommends that the selection of all prosecutors is carried out by a neutral body applying criteria which would safeguard against appointments based on partiality or prejudice. Court Hearings Article 21 and 22 - composition of the court and appointment of judges According to Article 21, Chapter IV, cases brought before the Human Rights Tribunal will be heard by a panel of five judges, comprising at least three ad hoc judges and two judges from the related District Court. Paragraph (1), Article 22, Chapter IV, provides for ad hoc judges to the Human Rights Court to be appointed and dismissed by the President, in consultation with the Supreme Court. Amnesty International is concerned that this provision is contrary to the right of all persons to be tried by an independent, impartial and competent tribunal, as recognized by Article 14 (1) of the ICCPR and the UN Basic Principles on the Independence of the Judiciary. Amnesty International considers that the provision for the re-appointment of judges for a second period after they have served an initial five-year term is also inconsistent with the right to be tried by an independent, impartial and competent tribunal. The Human Rights Tribunals will be trying some of the most politically sensitive criminal cases, judges therefore need to be insulated from political pressures. The provision for re-appointment for a second term of office could undermine this principle. In order to safeguard the right to be tried by an independent, impartial and competent tribunal, judges should be given effective guarantees of their independence and security of tenure. This should include a relatively long term of office which is non-renewable. The Rome Statute of the International Criminal Court contains such guarantees. Hearing Procedures Article 23 - time limits on trial hearings According to Article 23, Chapter IV, cases of gross violations of human rights which come

15 Human Rights Tribunal 1 before the Human Rights Tribunal must be heard, ruled on and concluded within 180 days. See comments above with respect to Articles 9, 11 and 14 about time limits. Article 24 - appeal to the High Court Under Article 24, Chapter IV, the High Court is required to conclude an appeal on a decision by the Human Rights Tribunal within 90 days of receiving the request. Amnesty International recognizes that anyone convicted of a criminal offence has the right for that conviction to be reviewed before a competent, independent and impartial tribunal within a reasonable time and the right to a public and reasoned judgement within a reasonable time. However, the organization considers that a 90-day limit is too rigid. See comments above with respect to Articles 9, 11, 14 and 23 about time limits. Article 25 - appeal to the Supreme Court According to Article 25, Chapter IV, appeals to the Supreme Court must be resolved in no more than 90 days by a panel of judges comprising three ad hoc judges and two Supreme Court judges. Amnesty International s concerns with this time limit are the same as those for Article 25. See comments above with respect to Articles 9, 11, 14, 23 and 24 about time limits. With respect to the use of ad hoc judges on the Supreme Court panel provided for under paragraph (2), Article 25, Amnesty International reiterates the points raised under Article 22 concerning appointment procedures for ad hoc judges and security of tenure. Article 26 - trials in absentia It is stated in Article 26, Chapter IV that the Human Rights Tribunal has the authority to hear and rule on cases of gross violations of human rights in the absence of the accused. Amnesty International is concerned that a provision which permits trials in absentia of persons who have not escaped from custody or who were on conditional release and violated undertakings to appear for trial, are inconsistent with the right to a fair trial, in particular with the right to be tried in one s presence. Under Article 14(3) (d) of the ICCPR everyone has the right to be tried in his presence. Reflecting this provision, the Statues for the International Criminal Tribunals for the former Yugoslavia and for Rwanda and the Rome Statue for the International Criminal Court exclude trials in absentia. Amnesty International believes that the accused should be present in court during a trial to hear the full prosecution case, to put forward a defence or assist their counsel in doing so, to refute or provide information to enable their counsel to refute evidence and to examine witnesses or advise their counsel in the examination of witnesses. The organization believes that the sole exceptions to this should be if the accused has deliberately absented himself or herself from the proceedings after they have begun or has been so disruptive that they have had to be removed temporarily. Article 27 - requirements for appointment of ad hoc judges Article 27, Chapter IV outlines the requirements for the appointment of an individual as an ad hoc judge. Amnesty International reiterates its comments in relation to the appointment of ad hoc judges (Article 22) that the appointments should be made by a neutral body applying neutral criteria.

16 1 Human Rights Tribunal Appeals, Supreme Court Appeals and Retrials Article 29 - Appeals and retrials Paragraph (1), Article 29, Chapter IV provides for the submission of a decision by the Human Rights Tribunal for appeal, Supreme Court appeal and retrial. Amnesty International recommends that provision should be made for the accused and the prosecutor to appeal interlocutory orders (orders in a case issued before the final judgment).

17 Human Rights Tribunal 1 4. Penal Provisions Article 30 to 34 - punishments According to Article 30, Chapter VI, anyone found guilty of crimes listed in Chapter II, Article 5 will be sentenced to a minimum of five years imprisonment and maximum of life or 20 years imprisonment. Amnesty International welcomes the decision to exclude the death penalty. In doing so, the proposal is consistent with the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda, as well as the Rome Statute of the International Criminal Court. However, Amnesty International is concerned that the grounds for distinguishing between the maximum and minimum sentences are not clear. Neither is this clarified in the subsequent four articles (Articles 31-34) which address terms of imprisonment for specific crimes listed in Article 5, Chapter II. Article 35 - command responsibility Article 35, Chapter VI provides for command responsibility stating that [e]very state apparatus, military official, or police official who is aware, or has reason to be aware of, a subordinate s attempt to perpetrate or perpetration of a gross violation of human rights and who did not take preventative measures or accountable measures to prevent that violation shall be liable to the sentences referred to in Article 30, Article 31, Article 32 and Article 33". Amnesty International welcomes the decision to include the principle of command responsibility, but it should be consistent with that principle as recognized in Articles 86 and 87 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and Article 28 of the Rome Statute of the International Criminal Court. Broadly, military commanders and those who effectively act as military commanders are not only criminally responsible for ordering, instigating, conspiring to commit, or committing crimes against humanity and/or war crimes, but also for tolerating such crimes or not taking the necessary measures to prevent their commission, to bring them to a halt or repress them, when they knew or had reason to know that a subordinate was about to commit such a crime or had done so. The definition of command or superior responsibility should also expressly apply to civilians, as well as to military, police and other security officials, at all levels.

18 1 Human Rights Tribunal 5. Past Violations Article 37 - ad hoc Tribunals for past violations Under Article 37, Chapter VII, provision is made for the establishment of ad hoc Human Rights Tribunals for resolving past cases of gross human rights violations. Such ad hoc Tribunals will be established by Presidential Decree upon the recommendation of the House of Representatives (DPR) and will be subject to the procedures contained in the legislation for the Human Rights Tribunals. Amnesty International is concerned that the establishment of ad hoc Tribunals by Presidential decree could lead to a perception that they have not been established on an impartial basis and that certain crimes or suspects could be included or excluded for political reasons. Such perceptions could undermine the integrity of the judicial system. If ad hoc Tribunals are to be established, every effort must be made to ensure that they are established by a neutral, independent and non-political body. Notwithstanding the need for thorough reform of the existing judicial institutions including the Supreme Court, responsibility for establishing ad hoc Tribunals might more appropriately lie with the Supreme Court. Neutral criteria for assessing whether or not an ad hoc Tribunal should be established must also be applied. Such criteria would include the inability of the regular courts to function independently, impartially, or fairly, in a particular region or with respect to a particular crimes. In the event of an ad hoc Tribunal being established every possible step should be taken to ensure that the proceedings are consistent with the right to fair trial. Truth and Reconciliation Article 41 - truth and reconciliation According to Article 41, Chapter VIII [r]esolution of gross human rights violations which occurred prior to the adoption of this Act may be undertaken by the Truth and Reconciliation Commission. The draft notes to the legislation also make reference to the Truth and Reconciliation Commission as providing an alternative to resolving gross violations of human rights. The establishment of a Truth and Reconciliation could provide an important contribution towards providing a full account of past violations which would assist in the process of national reconciliation. However, Amnesty International considers that there are certain crimes, including crimes against humanity and war crimes, for which individuals must also be held criminally responsible and be brought to justice accordingly. In such cases a Truth and Reconciliation Commission should not be considered as an alternative, but as an addition to judicial proceedings.

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