Between Law, Politics and Memory: The Indonesian National Commission on Human Rights (Komnas HAM) and Justice for Past Human Rights Crimes

Transcription

1 Australian Journal of Asian Law, 2018, Vol 19 No 1, Article 8: 1-14 Between Law, Politics and Memory: The Indonesian National Commission on Human Rights (Komnas HAM) and Justice for Past Human Rights Crimes Ken Setiawan Since the 1998 fall of authoritarianism, one of the most controversial questions in Indonesia has been what to do with the country s legacy of human rights violations. Various justice measures developed at the national level, whether judicial or nonjudicial in nature, have been largely unsuccessful in establishing the truth about past crimes, holding perpetrators to account, or providing redress to those who were victimised. This article seeks to explain why justice for past human rights crimes remains elusive in contemporary Indonesia, using the 2012 report of the National Human Rights Commission (Komnas HAM) on the mass violence as a case study. The article will use critical discourse analysis to examine this report and responses towards it, to establish what factors explain the stagnation of human rights reform in this area. This article will argue that while the lack of reform is commonly attributed to the influence of powerful political actors and the broader context of a weak legal system, critical discourse analysis shows that an equally important factor is the role of historical memory and how this influences reform trajectories. This has implications for the way human rights are socialised, and requires these discourses to move beyond the ambit of the law. Following the end of authoritarianism in 1998, Indonesia initiated various political and legal reforms, including those that responded to calls for justice for past human rights violations. Among others, international human rights norms were entrenched in law, existing human rights bodies such as the National Human Rights Commission (Komisi Nasional Hak Asasi Manusia, henceforth Komnas HAM) were strengthened, and new institutions were established, such as the Human Rights Courts. These changes took place within a context of transitional justice, which can be defined as a conception of justice associated with periods of political change, characterised by legal responses to confront the wrongdoings of repressive predecessor regimes (Teitel, 2003: 69). Transitional justice encompasses both judicial and non-judicial mechanisms, a combination of which is considered optimal for success (Drexler, 2010: 49). These approaches share the quality that all seek to offer some form of accountability, provide restitution for victims, and promote political, economic, and legal reform at the societal level (Kimura, 2015: 75). Yet, nearly twenty years after the fall of Soeharto little or no justice has been delivered for past violations of human rights. This has been attributed to the deep, systemic unwillingness to uncover the truth surrounding serious human rights violations and hold those who are responsible accountable for their actions (ITCJ and Kontras, 2011). A number of underlying causal factors in the political and legal spheres have been identified, including a lack of political will, the persistence of New Order political and military elites, and the weaknesses of the legal system. While these factors are important for understanding the limited success of reform efforts in the post-authoritarian period, some scholars have remarked that punishing past human rights crimes receives very little societal support (Linton, 2006: 231; Kimura, 2015: 89; Warburton, 2016: 315). However, it is far less clear how this lack of societal support plays out in reform processes, particularly where these concern justice for past human rights violations. This article seeks to fill this gap through an analysis of Komnas HAM s 2012 report on the 1965 violence and responses to the Commission s calls for this case to be heard by an ad hoc Human Rights Court. As discussed in detail below, the case of the 1965 violence is especially important when considering human rights reforms in general and the question of redress for past violence, as that violence effectively gave birth to Soeharto s New Order regime. The article draws on critical discourse analysis to examine the report and responses to it. Critical discourse analysis is concerned with the Ken Setiawan is a McKenzie Postdoctoral Fellow, Asia Institute, the University of Melbourne

2 relationship between language and power and examines the perspectives of those who suffer and the language of those in power; those who are responsible for the existence of inequalities and who have the means and the opportunity to improve conditions (Weiss and Wodak, 2003: 14). It is this focus on the way that discourses reproduce (or resist) social and political inequalities that renders critical discourse analysis an appropriate lens to better understand why justice remains elusive. The analysis of the report and responses to it is preceded by a discussion of human rights reforms initiated after This gives further context to the Komnas HAM report as well as the role that the Commission has been given in the post-authoritarian context. Building on earlier work on Komnas HAM (Setiawan, 2013 and 2016), I argue that the stagnation of the justice process is strongly influenced by the role of historical memory. Historical memory can be defined as the way in which groups, collectivities and nations construct and identify with particular narratives about historical periods or events (Hite, 2011: 1079). Sociologist Maurice Halbwachs has argued that these constructs are powerful, as they have deeply influenced national thought, not only because they have altered institutions but also because their tradition endures, very much alive, in region, province, political party, occupation, class, even certain families of persons (Halbwachs, 1992: 51). Building on the observations on the relationship between historical memory and reform debates in the early years of Reformasi (the post-1998 Reform era) of Daniel S Lev (2005), I argue that historical memories of 1965 are the basis of the limited societal support for justice for this case. An analysis of the political discourses that emerged in response to Komnas HAM s report illustrate how these constructions of historical memory continue to reverberate in the political and legal realms. The influence of memory in the stagnation of human rights reform in contemporary Indonesia should prompt reflection on how organisations such as Komnas HAM frame their recommendations. One of the primary roles of National Human Rights Institutions (NHRIs), such as Komnas HAM), is the promotion of human rights. The effective promotion of human rights is not only dependent on a well-functioning legal system but also the socialisation of these rights. This refers to situation where people become aware of the meaning and consequences of human rights in such a way that these are considered just (Setiawan, 2013: 19). As such, this article will argue that to constructively work towards justice for past crimes, it is imperative that the discourses of these organisations move beyond the ambit of the law. The Establishment of a Human Rights Framework The fall of the authoritarian New Order regime triggered a wave of law reform including in the area of human rights. These reforms were driven both by political necessity and international pressure (Lindsey and Santosa, 2008: 12-13). This section will describe the main changes to the human rights framework, particularly where these changes concern redress for past human rights violations and the role of Komnas HAM. The foundation for legislative reform related to human rights in the immediate postauthoritarian period is Decree XVII/MPR/1998 on Human Rights. The Majelis Permusyawaratan Rakyat (MPR, People s Consultative Assembly) passed this Decree in November It stipulates that the respect, implementation and socialisation of human rights is the task of the government apparatus and state bodies; 1 that a human rights commission will be tasked by law to provide education, investigation, research and mediation on human rights; 2 and that the implementation of human rights will be guaranteed and regulated by law. 3 This Decree was the precursor to the enactment of Law No 39 of 1999 on Human Rights (HRL) the following year. The HRL expanded on the initial human rights protections included in the MPR Decree, and includes a wide range of human rights provisions. The Law also stipulates that international human rights law ratified by Indonesia becomes national law. 4 For Komnas HAM, the 1 Article 1 of Decree XVII/MPR/1998 on Human Rights Interestingly, art 3 states that the respect for human rights is dependent on a societal movement (gerakan kemasyarakatan) based on citizens awareness of their responsibilities. 2 Article 4 of Decree XVII/MPR/ Article 44 of Decree XVII/MPR/ Article 7(2) of the Law on Human Rights. 2

3 enactment of the HRL meant a strengthening of its legal status, as its inclusion in the Law (in Chapter VII) replaced its previous mandate enshrined in Presidential Decree No 50 of As such, Komnas HAM s legal status and appointment procedures of commissioners were brought into line with international guidelines for National Human Rights Institutions (NHRIs). The Law also expanded the Commission s mandate by adding the task of mediation, 5 and gave it the authority to summon parties, 6 a potentially powerful tool when conducting investigations into cases where human rights violations were suspected (Setiawan, 2016: 13-14). The enactment of the HRL was followed by Government Regulation No 1 of 1999 on the Human Rights Courts to address cases of gross human rights violations (pelanggaran hak asasi manusia yang berat). The Regulation designated Komnas HAM as the sole preliminary investigator for suspected violations, 7 with further investigations and prosecution to be conducted by the prosecution service. 8 This Regulation was in place until the enactment of Law No 26 of 2000 on the Human Rights Courts (HRCL), which defined gross human rights violations as crime of genocide and other crimes against humanity, 9 a delineation that was absent in the Regulation. The procedures in the HRCL are the same as the Government Regulation, with Komnas HAM as preliminary investigator 10 and further investigation and prosecution being the task of the Kejaksaan Agung, the national prosecution service and attorney-general s office. 11 The HRCL differentiates between the establishment of the permanent human rights courts that may hear cases of gross human rights violations that occurred after the promulgation of the Law, and ad hoc Human Rights Courts that may hear cases that took place prior to This Law thus established a new mechanism to address human rights violations and placed Komnas HAM in a strategic position to address past crimes and combat impunity (Setiawan, 2016: 14-15). In addition to the HRC and the HRCL, human rights were also part of other legislative reforms. These included the Second Amendment (2000) to the 1945 Constitution, 13 which saw the addition of a chapter on human rights (Chapter XA). This was a response to the original 1945 Constitution, which included very few human rights and emphasised citizens duties towards the state. These Constitutional changes were thus a deliberate attempt to break with the past and an effort to dismantle the integralist notion. 14 While the Constitutional right to be free of retroactive prosecution 15 is potentially problematic in holding the armed forces to account for past human rights abuses, 16 in general Chapter XA is regarded as a lengthy and impressive passage, formally granting a full range of protections extending well beyond those guaranteed in many developed states (Lindsey, 2008: 29). The 2000 Amendment also addressed civilian-military relations, a relevant issue in Indonesia s political transition considering the military s role in state oppression during the New Order. Moreover, its visibly violent role in crushing student opposition in 1998 increased demands for the reduction of military power. This resulted in a distinction between external defence and internal 5 Article 76(1), art 89(4) of the Law on Human Rights. 6 Article 89(3)(c), (d) of the Law on Human Rights. 7 Article 10(1) of Government Regulation 1/ Article 12 of Government Regulation 1/ Articles 4 and 7 of the Law on Human Rights Courts. 10 Article 18(1) of the Law on Human Rights Courts. 11 Article 21(1), art 23(1) of the Law on Human Rights Courts. 12 Article 43(1) of the Law on Human Rights Courts. 13 Between 1999 and 2000, the Constitution was amended four times. For an overview, see Lindsey, During deliberations on the Indonesian Constitution in 1945, the customary law expert Soepomo introduced the notion of an integralist state. In this concept, there is harmony and reciprocity between rulers and ruled. The leader acts as a benevolent father of the people, and there is no division between rulers and individuals as they both belong to the state. In emphasising the organic unity of societal groups, integralism excluded ideas of individual rights (Lubis, 1993; Bourchier, 2015). 15 Article 28I(1) of the 1945 Constitution. 16 The Constitutional principle of non-retroactivity has triggered some debate as to whether gross human rights abuses committed before 2000 can be prosecuted under Law No 26 of 2000 (the Human Rights Courts Law), or whether prosecution can only take place where possible under the pre-existing Criminal Code (Herbert, 2008: 458). 3

4 security, 17 while the legislature was given the power to regulate the authority and jurisdictions of both the Armed Forces and the police. 18 The dismantling of dwifungsi and the subjugation of the military to civilian authority was a response to the legal impunity that the military had enjoyed under authoritarianism (Lindsey, 2008: 28). In addition, during the presidency of Abdurrahman Wahid ( ) Indonesia pursued the establishment of non-judicial mechanisms to address past human rights crimes, including by starting the drafting of a Law on the Truth and Reconciliation Commission (TRC). This Law was eventually passed in and the TRC was given a mandate to settle cases of human rights violations outside the court system. One of the key ideas behind this Commission was for it to address the problems caused by the Constitutional principle of non-retroactivity by offering an alternative way to deal with human rights crimes that occurred before 2000 (Herbert, 2008: 469). However, the TRC Law included several problematic provisions that had the potential to contribute to impunity. Several human rights groups were concerned that art 27 of the TRC, which stipulated that compensation for victims would only be awarded in exchange for amnesty, would serve to entrench impunity. Consequently a number of human rights NGOs and victims organisations brought the Law before the Constitutional Court for review. On 7 December 2006 the Court cancelled the Law, 20 agreeing with the petitioners that the provision stipulating the exchange of amnesty for reparations was in contradiction with rights guaranteed by the Constitution. 21 To date, there has been no substantial attempt to reinstate a TRC, leaving Indonesia without any non-judicial mechanism to resolve past human rights violations. 22 Despite the failure to establish a formal non-judicial mechanism for the redress of past human rights violations, the early Reformasi years saw the swift development of a national human rights framework in Indonesia. This structure included new provisions and mechanisms to deal with human rights violations and strengthened existing state bodies, 23 primarily Komnas HAM, which was given specific tasks in the investigation of human rights crimes. Taken together, these reforms demonstrate sufficient modalities of legal resources to guarantee protection of human rights in Indonesia (Hadiprayitno, 2010: 381). Explaining the Ineffectiveness of Human Rights Mechanisms While significant progress was made in entrenching human rights norms, at the same time the question of justice for past human rights violations has been fiercely contested. Recent assessments of Indonesia s transitional justice trajectory have argued that this process is delayed (Suh, 2016: 241) or, more dramatically, has failed (Kimura, 2015: 73). From these assessments it can be concluded that new and strengthened human rights institutions and mechanisms have been ineffective. 24 This section will briefly consider the challenges Komnas HAM and the Human Rights Courts have faced. 17 Article 30 of the 1945 Constitution. 18 Article 30(5) of the 1945 Constitution. 19 Law No 27 of 2004 on the Commission for Truth and Reconciliation. 20 Constitutional Court decision 006/PUU-IV/ Articles 27(1), 28D(1), 28I(2), 28I(5) of the 1945 Constitution. 22 Under the presidency of Joko Widodo (2014-present), new non-judicial bodies were established to address historical violence, including a so-called Reconciliation Committee and a National Harmony Council. As argued by McGregor and Setiawan (forthcoming) these initiatives serve to shield perpetrators from accountability, rather than establishing truth and providing redress to those victimised. 23 This period also saw the establishment of new state bodies with a specific human rights mandate; the 1998 Commission on Women s Rights (Komnas Perempuan) was established in direct response to sexual crimes against predominantly ethnic Chinese women committed in May 1998, and in 2001 a Directory General for Human Rights was established under the Ministry of Law and Human Rights. 24 Effectiveness is defined as the extent to which an organisation or institution meets its goals, whereas performance refers to the way it executes its tasks. Good performance is a crucial step towards, but no guarantee of, effectiveness. This distinction between performance and effectiveness is particularly important when considering quasi-judicial bodies such as Komnas HAM that remain dependent on other organisations for their recommendations to be implemented. For an extensive discussion see Setiawan,

5 As discussed above, Komnas HAM s legal position was strengthened and its mandate expanded by law reform. It was anticipated that with these improvements Komnas HAM, which in its early years under authoritarianism had become a critical voice on human rights issues, would be able to make an even more substantial contribution to the protection of human rights. By extension, it was anticipated that it could help bring cases of past human rights violations to justice. Yet, in its investigations of human rights violations, Komnas HAM has faced significant external pressures. Members of the armed forces, for instance, have consistently refused to respond to the Commission s summons, a result of inconsistencies between the HRCL and the HRL, with only the latter explicitly providing for Komnas HAM s power of summons (Setiawan, 2016: 25). The Attorney-General s Office has also repeatedly rejected the Commission s findings using a variety of arguments. These have included procedural matters, such as whether Komnas HAM investigators should take an oath before performing their tasks (as is required of investigators in the prosecution service). 25 Prosecutors have also referred to unclear provisions in the HRCL as a reason to halt further investigations. This includes whether prosecutors can proceed with an investigation without, or prior to, legislative approval for an ad hoc court. 26 To date, only two ad hoc Human Rights Courts have been established in Indonesia. 27 In both instances, the judicial process was undermined by a weak prosecution. In the tribunal for East Timor, which dealt with crimes committed around the time of the 1999 independence referendum, the prosecution s evidence barely included evidence gathered in the Komnas HAM-led investigation. Instead, most of the testimony presented was favourable to the defendants. In its verdicts the Courts reproduced the civil war narrative put forward by the Indonesian authorities, allowing the military and political elites to evade responsibility for their role in the violence (Drexler, 2010: 56). Similarly, in the tribunal for the 1984 Tanjung Priok massacre, in which the security forces had opened fire on demonstrators, prosecutors failed to include the systematic and widespread elements of the case that are crucial to ensure a conviction. The failure of Komnas HAM and the Human Rights Courts to break the cycle of impunity can be explained by various, interrelated factors. In the case of Komnas HAM, internal factors have negatively influenced the Commission s functioning. The politicisation of its membership, an unintended consequence of the election of members by the national legislature, the DPR (Dewan Perwakilan Rakyat, People s Representative Council), a process introduced by the HRL, has been particularly problematic. Combined with a social-political context that remains at best indifferent to, and, at worst, opposes, the implementation of human rights, this has significantly compromised Komnas HAM. This is very evident in the lack of support it receives from the prosecution service, which is reluctant to follow up on the Commission s investigations (Setiawan, 2016). Meanwhile, the ineffectiveness of the Human Rights Courts can be explained by the general weakness of the Indonesian legal system (Cammack, 2016: 225). In this situation, judges may be independent but cannot survive against forces within the larger system [ ] aligned against them (Cammack, 2010: 199). Another related challenge is the weakness of legal drafting that produces laws riddled with loopholes (Hadiprayitno, 2010: 397), all too easily exploited by forces opposed to human rights reform. A lack of political will, especially at the highest levels of the political elite, has been identified as a key factor in the stagnation of human rights reform in post-authoritarian Indonesia. The absence of political support is largely a result of the continuing presence of New Order players (Sulistiyanto, 2007: 90; Kimura, 2015: 88). Proponents of the oligarchy theory have argued that elite continuity is the consequence of the nature of authoritarianism in Indonesia which disorganised civil society and destroyed liberal forces (Hadiz and Robinson, 2013: 36). Very few alternative political ideologies supposedly more friendly to the concept of human rights are therefore available. 25 Article 21(4) of the Law on the Human Rights Courts. 26 Article 43(2) of the Law on the Human Rights Courts stipulates that ad hoc courts are established at the proposal of Parliament for specific cases. These courts are formalised by way of a Presidential Decree. 27 To date, the permanent courts have only heard one case; Abepura, the tribunal for which was held in Makassar (2004). Of the twenty-five members of the security forces identified by Komnas HAM to be responsible for the violations, only two stood trial. The Court acquitted both defendants. 5

6 Aspinall has argued that, in fact, the New Order allowed some dissent. The semi-opposition that was created through this has continued to influence the nature of democratic transition, explaining why many post-1998 political actors were previously part of the Soeharto regime (Aspinall, 2010: 21). As a result, Indonesia s transition to democracy has been smooth, but one of low quality (Aspinall, 2010: 32). Where this concerns human rights, this is represented by significant institutional and legal reform on one hand but with limited implementation on the other (Setiawan, 2016: 5). This has been labelled by Hadiprayitno as the defensive enforcement (2010) of human rights. In this context, the entrenchment of human rights is a political tool to secure a good international reputation and deflect criticism, rather than an actual commitment towards (let alone guarantee of) implementation. These factors at the levels of politics and law generate important insights into understanding why the creation of a human rights framework has not translated to justice. It is crucial to note that, for political actors, there is little gain in pursuing a human rights agenda, as these issues generally do not generate much societal support. Both Kimura (2015: 89) and Warburton (2016: 315) have noted that Indonesia s electorate has become increasingly conservative and has little interest in questions of historical justice. In the following section, I will explore what underpins the limited societal support for past human rights crimes through a discourse analysis of Komnas HAM s report on the 1965 violence and responses towards its findings. In so doing, I will illustrate how historical memory of this violence influences questions of justice. Debating Justice? A Discourse Analysis of Komnas HAM s Report on the 1965 Mass Violence and Its Reception Komnas HAM and the 1965 Mass Violence On 30 September 1965, a group of soldiers calling itself the Thirtieth of September Movement kidnapped and killed six high-ranking officers and a lieutenant. The Army Strategic Reserve Command (KOSTRAD), under the leadership of Major General Soeharto, quickly defeated the Movement. The army attributed the Movement to the Indonesian Communist Party (PKI, Partai Komunis Indonesia) leading to the persecution of party members and sympathisers. The height of the killings was between late 1965 and early 1966, during which the military and vigilante groups killed approximately 500,000 persons. Mass detention was also a part of the attack on the Indonesian left, with between 600, ,000 imprisoned for lengthy periods of time without formal charge or trial (McGregor, 2013a: 138). Those who survived were denied an array of civil rights, such as the right to vote or to work in so-called vital sectors including government and education, and experienced systematic discrimination. This was the result of how the new political leadership, under Soeharto, portrayed communists : traitors to the nation, who were a threat to national security and stability. Any violence committed against them was therefore justified, and even good for the country. Soeharto s New Order constructed this singular version of the past (McGregor, 2007: 7) through museums and monuments, commemorations and propaganda films, as well as through the school curriculum and textbooks (Kuddus, 2017: 60-61). These instilled in Indonesian society a deep fear of communism and a need for constant vigilance for latent dangers to the nation. The fall of the New Order regime in 1998 saw increased attention for redress for past crimes. Civil society swiftly took up the issue of the 1965 violence and victims organisations were established. Official organisations, however, were much slower in their response. Komnas HAM first addressed the 1965 violence in 2003, 28 as part of a research project (rather than an investigation) on human rights violations under the Soeharto regime. 29 This research focused on the Buru island penal 28 In 2007, the National Commission on Women s Rights (Komnas Perempuan) published a report on the 1965 violence as experienced by women. 29 The other cases included in this research were the Petrus (penembakan misterius, mysterious shootings) killings, the 1984 Tanjung Priok case and violations committed in military operations in Aceh ( ) and Papua ( ), and the 1996 attack on the headquarters of PDI (Partai Demokrasi Indonesia, Indonesian Democratic Party). 6

7 colony, where more than 10,000 political prisoners were held without trial between It was anticipated that this research would form the basis of an investigation under the Law on the Human Rights Courts and thus of a case to be brought to an ad hoc tribunal. However, upon the report s publication, its findings were strongly contested within Komnas HAM by commissioners with ties to the security forces and conservative Islamic groups. 30 With the Commission internally divided, the case was not pursued further (Setiawan, 2013). In 2007, concern for past human rights crimes regained new momentum within Komnas HAM. This followed the appointment of new commissioners who, unlike their predecessors, did not include members with a background in the security forces. In fact, the members appointed for the period included prominent human rights activists and academics, as well as a former ad hoc court judge. The new chairperson, Ifdhal Kasim, announced that Komnas HAM would prioritise the investigation of past human rights abuses. This suggests that in this period the organisational environment of Komnas HAM was more conducive towards the investigation of cases of past crimes. However, agreement to commence an inquiry for the 1965 mass violence under the HRCL proved difficult to secure. Many Commissioners opposed the inquiry, arguing the case was too difficult and that the violence occurred a long time ago and would therefore be difficult to investigate. Those in favour had to lobby the cause extensively within Komnas HAM. Eventually, the matter was subjected to a vote, a measure Komnas HAM in general tries to avoid (Setiawan, 2013). The investigation was only just secured: six commissioners voted in favour, while five rejected the proposal. 31 Framing 1965 as a Crime against Humanity: Komnas HAM s 2012 Report Komnas HAM commenced its investigation in 2008 and announced its findings four years later. In the Executive Summary (to date the only publicly available document on the investigation), Komnas HAM states that the rationale for the investigation is the demands of victims, their families and societal groups. It also mentions that bringing the case to Komnas HAM was only one of the various efforts undertaken. The introduction to the report explains that, in accordance with the Law on Human Rights, Komnas HAM first researched the case before proceeding to establish an ad hoc investigation team pursuant to arts 18, 19 and 20 of the Law on the Human Rights Courts. This situates the investigation directly within the objectives of this Law to provide for a judicial mechanism to address gross human rights violations. The central position of the HRCL in the rationale was also necessary to counter criticism on Komnas HAM for conducting the investigation, which in response could argue that the Commission was simply executing its mandate. 32 Komnas HAM collected the testimonies of 349 persons for its investigation. These witnesses came forward to Komnas HAM through its network with human rights NGOs. Some witnesses gave testimony at Komnas HAM s office in Jakarta, while members of the investigation team interviewed others during field visits. During the investigation, Komnas HAM experienced a number of constraints. Members of the investigation team were intimidated by mass organisations that were aware of the Commission s schedule of field visits, indicating that this information was leaked from within Komnas HAM. Investigators were pressed by these organisations to immediately cease their activities. The Commission was repeatedly accused of being a communist nest (sarang komunis) and in East Java the military put up banners against Komnas HAM. This intimidation affected potential witnesses, with many pressured into not giving testimony. On a number of occasions it was expected that a large number of witnesses would give testimony, but only a handful would eventually do so because of intimidation by local security forces or mass organisations. In other cases, witnesses would arrive at other times than anticipated, to avoid surveillance of the security forces. This illustrates that resistance against the investigation was high This was not exclusive to the case of the 1965 violence. Similar dynamics were involved in Komnas HAM not pursuing an investigation into the persecution of the Ahmadiyah, a persecuted Muslim sect (Setiawan, 2016). 31 Interview with former Komnas HAM Commissioner, 13 July Interview with former Komnas HAM Commissioner, 13 July Other state bodies providing assistance to victims of human rights violations are often also faced with similar criticism (interview with Commissioner of the Witness and Victim Protection Agency, 16 July 2018). 33 Interview with former Komnas HAM Commissioner, 13 July

8 In the official report, Komnas HAM made no notice of these constraints but mentioned others such as: the geographical spread of the case; limitations to its budget; the time elapsed since the case; and the trauma experienced by the victims. Similarly, the report mentions that also families of victims suffered psychologically as a result of discrimination. This social impact, however, is not explored further, with the report focusing on criminal acts in six regions: Maumere; Gerobokan Prison in Denpasar; South Sumatra; Moncongloe prison camp in South Sulawesi; Buru prison camp; and Jalan Gandhi detention centre in Medan. These locations were chosen in a response to the constraints of the investigation, and because they were arguably representative of the violence that occurred in other areas. For each of these areas, Komnas HAM outlined what happened, based on witness testimonies and, in so far as is possible, how many people were victimised. The report also identifies who was responsible for this violence and indicates the time frame in which the events took place. In most, these occurred well after the height of the killings ( ). In detention centres and prison camps, violations occurred well into the late 1970s, coinciding with the gradual release of most political prisoners. The approach of Komnas HAM of focusing on just six areas has been criticised. For instance, Meijer (2015) has argued that this narrow focus is difficult to justify, considering the widespread scale of the violence. Meijer also argues that Komnas HAM s focus on the outer regions ignores the scope of the violence in Java in particular as well as Bali. However, a former member of the investigation team commented that resistance to the inquiry was too strong in these areas, forcing the Commission to shift its focus to other regions. 34 As such, the limitations of Komnas HAM s report also represent of what it was able to do in very challenging circumstances. A close reading of the report shows that the locations chosen also played a particular role in the overall argument of the report that the 1965 mass violence was a gross human rights crime. The various locations represent different elements of crimes against humanity. The investigation in Maumere focused on killings, in Denpasar on the deprivation of liberty, in South Sumatra on enforced disappearances, in Sulawesi Selatan and Buru on the crimes of slavery, the deprivation of liberty and persecution, and in North Sumatra on murder, torture, deprivation of liberty and enforced disappearances. In emphasising particular crimes in these various areas, Komnas HAM thus strengthened its argument that this violence constituted a crime against humanity, as required by the Law on the Human Rights Courts. Similarly, while the report does not include Java one of the main locations of violence by selecting areas across Indonesia, the report supports its claim that the violence was widespread and systematic, key elements of gross human rights crimes. While this approach was certainly not without problems, as argued by Meijer, it also served to support the Commission s conclusions. Komnas HAM concluded that the 1965 violence occurred as a result of state policies at the time aimed at the annihilation of members and sympathisers of the Indonesian Communist Party (Komnas HAM 2012). The Commission found that there was sufficient preliminary evidence (bukti permulaan yang cukup) of crimes against humanity including murder, slavery, forced relocation, torture, rape and other forms of sexual violence, persecution, and enforced disappearance defined in the Law on the Human Rights Court. Komnas HAM identified the military command at the national and local levels responsible for these violations. In a first for Komnas HAM investigations under the Law on the Human Rights Courts, it issued a dual recommendation by both asking for the case be further investigated by the prosecution service 35 and for it to be heard through a non-judicial mechanism to provide justice for victims and their families (TRC) 36 (Komnas HAM 2012). In concluding that the attacks against a part of the civilian population were a consequence of state policy, and that this violence was widespread and systematic, Komnas HAM made an important contribution towards the pursuit of justice for this case. 34 Interview with former member of the investigation team, 10 July Articles 1(5) and 20(1) of the Law on the Human Rights Courts. 36 Article 47(1)(2) of the Law on the Human Rights Courts. 8

9 Responses to the Komnas HAM Report As the Komnas HAM report was being completed, three commissioners met with President Susilo Bambang Yudhoyono to convey the findings to him. During this meeting, Komnas HAM representatives suggested that Yudhoyono issue a presidential apology addressing the role of the state in the mass violence. While there seemed to be indications that Yudhoyono would issue an apology for the violence, as well as other past human rights abuses (Pramudatama, 2012), it did not eventuate. Criticisms by retired military officers and conservative Islamic groups most likely played a role in this decision. Other explanations include Yudhoyono s personal relationship with a perpetrator of the violence: his father-in-law, Sarwo Edhie Wibowo, was directly responsible for many of the mass killings in Central Java (Robinson 2017, 469). Moreover, Yudhoyono held the view that, not being a perpetrator himself, there was no need for him to apologise (Berger 2015, 228). This illustrates a lack of understanding of the principles of human rights and the role of the state as duty bearer. Prosecutors reacted to Komnas HAM s report by establishing an evaluation team to study the Commission s recommendations. Soon, it became evident that the prosecution service was reluctant to follow up with its own investigation and used legal arguments to justify this. In October 2012 Basrief Arief, the Attorney General, commented that the 1965 case was extremely difficult (Pratomo, 2012). Two months later, prosecutors stated that they rejected the report because Komnas HAM failed to meet formal and material requirements (Beritasatu, 2012), referring to incomplete documents and the fact that Komnas HAM investigators had not taken an oath prior to conducting their activities. Prosecutors thus questioned the legality of the Komnas HAM investigation and, as a consequence, there would be no legal basis for a further investigation. However, this reasoning ignores that there is no requirement in the HRCL for Komnas HAM investigators to take an oath. As discussed above, prosecutors in other cases have also used both arguments in order to justify inaction regarding Komnas HAM s recommendations. Following the 2014 election of President Joko Widodo ( Jokowi ), the question of justice for past crimes once again re-entered public discourse. This was a result of Jokowi s inclusion of past human rights violations in his campaign program, in which it was stated that, if elected, these cases would be finalised. While campaign programs are rarely a yardstick for actual human rights policy, it appeared that in the early days of his presidency Jokowi intended to follow up on these promises. On 9 December 2014, in the context of International Human Rights Day, Jokowi stated that his government was committed to finalise these cases through ad hoc Human Rights Courts and reconciliation (Sekretariat Kabinet Republik Indonesia, 2014). This suggested that the new administration would follow a judicial approach as recommended in the Komnas HAM report. At the same time, past human rights violations were not included in the National Action Plan on Human Rights (Rencana Aksi Nasional Hak Asasi Manusia, RANHAM). In May 2015, it became evident that the government had become less committed to reviving the Human Rights Courts, as it was announced a Reconciliation Committee would deal with cases of past human rights abuses. It would be led by the new Attorney General, M Prasetyo, with representation from the Coordinating Ministry of Politics, Law and Security, the military, police, State Intelligence Services (Badan Intelijen Negara, BIN), and Komnas HAM. Human rights groups were highly critical, questioning whether this Committee would be able to meet the demands and needs of those victimised. The turn to a Reconciliation Committee made it unlikely that cases would proceed to the Human Rights Courts and, in the specific context of the 1965 violence, undermined Komnas HAM s recommendation for non-judicial approaches to be dealt with by a Truth and Reconciliation Commission based in law. Prasetyo commented that a non-judicial approach was the only way to finalise the case of the 1965 violence, as it was difficult to find evidence and identify suspects, thereby once again invoking legal considerations to halt further investigations. At the same time, in addition to these legal constraints, Prasetyo commented that the period was long ago and chaotic, making it difficult to determine who did what (Lestari, 2015), invoking memories of the time and adding yet another argument for prosecutors refusal to bring cases of past human rights crimes to court. 9

10 While the turn towards reconciliation under the Jokowi presidency can be read as an attempt to present a more politically palatable mechanism, political discourses surrounding this issue illustrate that the proposed non-judicial measures were more acceptable. An analysis of responses to a possible presidential apology coinciding with the fiftieth anniversary of the violence illustrates how contentious the question of justice is. Although Attorney General Prasetyo did not support a judicial process, he said on a number of occasions that an apology is a key element of reconciliation. Prasetyo s position was immediately challenged by a number of senior government officials. Vice President Jusuf Kalla commented that an apology was problematic, as it was not clear who wants to ask for an apology and for what (BBC News Indonesia, 2015). Defence Minister Ryamizard Ryacudu made a clear link to the New Order s version of history when he claimed that an apology was unnecessary as the communists were the perpetrators. He advised all parties to throw away the past and simply reconcile (Indrawan, 2015). The reluctance (as expressed by Kalla) and rejection (Ryacudu) among cabinet members was shared by influential political and societal actors. Kivlan Zen, a former chief of staff of the Army Strategic Command (Komando Strategis Angkatan Darat, KOSTRAD), invoked a deeply-ingrained fear of communism when he warned that an apology would lead to the rise of a new communist party as well as large claims for financial compensation, which would be costly for the government (Setiawan, 2015). Meanwhile, Islamic mass organisations NU (Nahdlatul Ulama) and Muhammadiyah directly lobbied Jokowi not to issue an apology, leading to an official statement from his office that the government that it had no intention of apologising (Armenia, 2015). Jokowi then denied that preparations had been underway for an apology in the first place, labelling the news as a false rumour. Luhut Panjaitan, appointed in August 2015 as the new Coordinating Minister of Politics, Law and Security, added that the lack of an apology had no implications for reconciliation: the President just said there are no thoughts on apologising. I have said many times: we are looking forward. Don t ever look back (Lala, 2015). While the prosecution service has mainly resorted to legal discourse to reject Komnas HAM s report, political leaders have contested the findings mainly around the issue of apology. Yudhoyono was unwilling to offer such an apology for various reasons. His successor, Jokowi, appeared to have less qualms about making such a statement, at least at the beginning of his presidency. However, this was immediately contested by senior members of his cabinet. In these challenges, some argued that because the communists were to blame for the violence, the state is not responsible and therefore an apology is not necessary. The statement from Luhut Panjaitan, widely considered to be a confidante of Jokowi, illustrates that reconciliation and justice mean moving on rather than opening debate to establish what happened and who was responsible, and by extension to hold perpetrators to account and/or provide redress to those victimised. However, sustained human rights activism 37 forced the government to once again revisit the 1965 case in April Panjaitan agreed to the organisation of a National Symposium on the 1965 case (McGregor and Purdey 2016), which, for the first time, saw survivors of the violence, human rights activists and state representatives openly discuss the events. Not all members of the political and military elite have been welcoming of these endeavours. A few weeks later, a number of retired generals organised an event dismissing the National Symposium, in collaboration with conservative Islamic groups. At this counter-symposium Ryamizard Ryacudu stated that communists deserved to die in 1965 (Danubrata and Purnomo, 2016). Similarly, Rizieq Shihab, leader of the right-wing Islamist organisation, FPI (Front Pembela Islam, Islamic Defenders Front), threatened that if Jokowi proceeded with an apology we and all Muslims in the country will impeach him [ ] we will oppose anyone, including state officials, who instigate the rebirth of the PKI (Aritonang, 2016). The responses to Komnas HAM s report on the 1965 violence and the question of redress for past human rights violations reveal that political actors remain largely dismissive of justice endeavours, 37 McGregor and Purdey (2016) have argued that the organisation of this Symposium was a response to the International People s Tribunal on 1965 (IPT 1965) that was held in The Hague in November IPT 1965 was a mock tribunal held in response to the absence of legal accountability for the violation of international human rights norms. A number of senior cabinet members, including Luhut Panjaitan, dismissed the tribunal and claimed that the IPT was a foreign initiative. By contrast, the Symposium can be regarded as an Indonesian way to settle the case. 10

11 whether judicial or non-judicial. Similarly, the discourse employed by members of the political and military elites have very little interest in the human cost of the violence. Instead, the statements put forward by Ryacudu mirror New Order discourses that justified the mass violence as essential for the survival of the nation. By extension, it means that those considered responsible for those chaotic times (as expressed by Attorney General Prasetyo) being PKI members and their sympathisers do not deserve sympathy. Similarly, Shihab s comments that an apology or other measures will lead to the resurrection of the PKI, allude to the fear of communism that was propagated under the New Order as a crucial element of its ideological system of authoritarianism (McGregor, 2007: 228). Contemporary political debates surrounding past human rights crimes in Indonesia thus illustrate the salience of New Order discourses. These discourses portray victims of the violence as subversives and as threats to the stability of the Indonesian nation. This dehumanises those victimised and implies that they are unworthy of the protection of the law. This discourse has in recent years been employed with success to halt public discussion of the 1965 violence and its aftermath. 38 As I will argue in the section below, these discourses result in more than the shrinking of public debate - they also negate the quest for justice. Memory, Reform and Justice Efforts to address past injustices are intertwined with memory: legal processes, for instance, depend on the memories of victims and other witnesses. Moreover, the effects of past crimes often continue to influence societies long after their occurrence (Neumann and Thompson, 2015: 10). As such, the interdisciplinary field of memory studies is relevant for the study of human rights as it allows us to analyse how, when and why people and groups turn towards the past to respond to past injustices (McGregor, 2013b: 352). At the same time, the study of memory may also offer insights into why injustices are not addressed, or are only addressed in a limited way. In this section I will argue that the lack of broad support for human rights reform and addressing past violence is the result of the memory politics that were at the basis of the New Order s legitimacy. Here, I build on Daniel S Lev s observations (2005) on the relationship between historical memory and reform debates in the early years after the fall of authoritarianism. Lev notes that stalling of reform in post-authoritarian Indonesia can be attributed to various factors, including: unwilling elites; a military that does not want to cease political and economic power; ineffective state institutions; and the direct contestation of reforms by groups both within and outside the state. This is largely consistent with the factors identified for the limited success of human rights reform in the post-authoritarian era. Far less attention has been paid to the role of what Lev calls the absence of historical memory in the stalling of the reform process. Lev defines historical memory as the ability to call up political knowledge and put it to use in thinking about change, and argues that what is forgotten, or how something is remembered, is critically important to evaluating what exists or how it might be changed (Lev, 2005: 195, emphasis added). In his article, Lev discusses legislative reform in Indonesia after 1998 and argues that the parliamentary period in fact provides historical precedents for post-authoritarian reforms. However, he argues that this is largely forgotten, as the 1950s tend to be remembered as a time of political and social messiness, instability, and corruption (Lev, 2005: 198). While he is not uncritical of this period, Lev argues that, in fact, parliamentary government at the time was on the whole competent and safer, less debilitating and less destructive for Indonesia than anything that followed (Lev, 2005: 203). This has been obscured from official history, which instead has generated a distorted picture, where the common distinction is only made between the Old and New Order. In remembering the Old Order, the parliamentary period has been conflated with the far more unstable and corrupt period of Guided Democracy. As a result, Lev argues, knowledge about the parliamentary period and its gains have been lost. While this knowledge is no guarantee of an easier reform process in the post-authoritarian period, Lev argues that without this information it was more difficult to 38 For an extensive overview, see Kuddus,