Papua Violence Should Lead To Military Court Reform

Monday, January 31, 2011

Al Araf, Jakarta

The Jayapura Military Court sentenced three Army soldiers to between eight and 10 months of imprisonment for their role in the torture of civilians in Puncak Jaya, Papua. In the previous trial last November, the same court handed down between six and seven months’ prison term to four soldiers.

The verdicts demonstrate that justice has not been delivered for either the victims or the public, although the act of violence appeared on YouTube and has drawn attention from both domestic and international communities. Imparsial, as an institution that monitors and promotes human rights, is deeply concerned about the torture and the legal process that took place within the military court.

There is no reason to justify the acts of violence against civilians, which we believe constitute human rights violations and therefore should have prompted the court to hand down severe punishment to the perpetrators.

But this sense of injustice is not new within the military court. The aspect of justice within the special court system has given a cause for concern among the public. In many cases the court has become a safe haven for military personnel accused of committing crimes and abuses. One of the many examples is the murder of Papua Presidium Council chairman Theys Hiyo Eluay in April 2003, in which four Army Special Forces (Kopassus) members were convicted and sentenced to between two and three years in prison.

Human rights activists, academics and law practitioners deem the military courts a mechanism to protect rather than punish soldiers who violate human rights.

The military court does not fulfill the victims’ and public’s hopes for justice, as evident in the torture cases in Papua, which the military judges have reduced to a mere violation of military discipline.

The absence of justice is no surprise as the 1997 Military Court Law, which remains effective, was formed under an undemocratic regime that used the military as a political instrument to maintain power, if necessary by use of repression.

Military dominance in Indonesia gave the military court the ability to cover up crimes involving military personnel and provide them with impunity. This could happen because of the jurisdiction of the military court not only to administer justice in the event of military crimes and violations of military disciplines, but also general crimes involving military personnel.

The extensive jurisdiction of the military court is the root cause of the continuing practice of impunity.

The limited access given to victims of crimes that involve military personnel and the low degree of impartiality are among serious problems facing the military court.

During the early years of the reform era, the People’s Consultative Assembly addressed the problems plaguing the military court. The Assembly issued the 2000 Decree, which states that Indonesian National Military (TNI) personnel who commit military crimes are to be tried at the military court but those who commit ordinary crimes will face justice at the district court. This was reinforced through the 2004 TNI Law, which stipulates that “soldiers submit to the authority of the military court for violations of military criminal legislations and submit to the general court in violations of general crimes arranged within national laws”.

The desire to push for reform within the military court during the early reform era was based on the principle of equality before the law. Within a nation that upholds the rule of law, citizens, including military personnel, are entitled to equal treatment before the law.

To preserve the hard-won democracy, Indonesia needs an independent and fair justice system, which guarantees the due process of law that is a condition for sine qua non to protect human rights (Federico Andreu-Guzman, Introduction to Military Jurisdiction and International Law). This is an important point to consider to complete reform in the military court.

At the international level, there is a tendency to reduce the jurisdiction of the military court to military crimes as recommended by the United Nations Human Rights Commission. Many countries have changed their military court system, which took the shape of the prohibition of the military court to intercede on civilian citizens, the elimination of the military court during times of peace, the prevention of human rights violations and war crimes as the jurisdiction of the military court.

President Susilo Bambang Yudhoyono himself called for the change during his address on the military court bill to the previous House of Representatives. Unfortunately the amendment has not materialized. Worse, the bill is not among the list of priority draft laws in the term of the current House.

Reform in the military court as part of the military reform has stalled as both the government and the House are too cautious or perhaps afraid of amending the 1997 Military Court Law. This unfortunately is happening within a democracy that recognizes civil supremacy and promotes human rights.

The writer is the program director of Imparsial human rights group.

ENDS

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