Home Law Transitional Justice in the Asia-Pacific
Background: Peace and the Transformation of Aceh
The inclusion of transitional justice mechanisms in the Helsinki peace accord was surprisingly uncontroversial. Indeed, as one of us has elsewhere observed, few of the individuals directly involved in the 2005
Transitional Justice Mechanisms in the Memorandum of Understanding between GAM and the Government of Indonesia (GoI)
peace talks can clearly recollect how human rights and justice issues were dealt with in the negotiations, suggesting that they were simply less prominent and controversial than many of the thornier issues being discussed by the negotiators (such as the part to be played by local political parties in post-conflict Aceh). Early on in the talks, some GAM negotiators apparently spoke extensively about military abuses and called for international investigations of them. These approaches were effectively defused by Martti Ahtisaari, the former president of Finland and chief mediator, who called on the participants to focus on the future, not the past, and by the main Indonesian negotiators who reassured their GAM counterparts that Indonesia was now a democratic country and had already established transitional justice mechanisms of its own, including a new framework of human rights courts and a Truth and Reconciliation Commission. As a result, by the time of the final rounds of negotiations, these issues were so uncontroversial that the negotiators had even forgotten to include the human rights court in the text of the agreement, and it was President Ahtisaari who, during the final drafting, insisted on its inclusion.
Before we look at the implementation of various elements of the transitional justice agenda in greater detail, it is important to review two important aspects of the broader context.
First is the broader Indonesian transitional justice context. The transition from war to peace in Aceh is embedded in a larger setting of transition from authoritarian rule to democracy in Indonesia. As part of this democratic transition, especially early on (i.e. 1998 to 2001) a host of initiatives were taken and institutions set up to deal with past human rights abuses and to ensure that they would not be repeated in the future. There were, for example, several investigations into past gross human rights abuses and even trials of their perpetrators. However, and accounting for much of the tension surrounding transitional justice issues in Aceh, Indonesia’s transitional justice institutions have been largely ineffective, especially in dealing with gross abuses. For instance, no senior military officer has been successfully prosecuted by the new Human Rights Courts established under the 2000 Human Rights law. Some were prosecuted and convicted in relation to abuses committed in East Timor around the time of the UN-supervised poll on independence in the territory in 1999, but they were later released on appeal to the Supreme Court.
Such failures have primarily, though not entirely, been due to resistance by the TNI, which remains a powerful veto player in the Indonesian political system even if it no longer plays a determining role in day-to-day politics. Indeed, it might be said that one unstated but central element of democratisation in Indonesia has been an implicit political deal by which the military eased itself out of politics in exchange for effective impunity for past abuses. Certainly, very few members of Indonesia’s political elite believe that there is much purpose or benefit to be gained by pursuing military officers for past abuses, even if they agree that steps should be taken to avoid repeating these abuses in the future. Partly as a result of this factor, but also due to a host of other problems (including serious problems of judicial corruption and ineffectiveness) transitional justice in Indonesia overall must be assessed as a failure, despite the large number of initiatives. As the International Center for Transitional Justice and KontraS (Komisi untuk Orang Hilang dan Korban Tindak Kekerasan, Commission for Disappeared Persons and Victims of Violence) argue in a comprehensive review of Indonesia’s transitional justice efforts, ‘The series of successive failed mechanisms indicates systemic factors that undermine efforts to achieve truth and accountability for past crimes.’ Elements of this national context have been important in Aceh. While, as we shall see, military personnel have largely withdrawn as central political players in Aceh, they remain a looming presence there, and many other political actors are careful to avoid antagonizing them needlessly or providing them with a motive to intervene once more in local affairs (especially in a context where there is constant speculation about covert operations by intelligence agencies designed to once more fan the flames of conflict). Certainly, at the time of the negotiation of the 2005 Helsinki agreement, numerous serving and retired military officers made it very clear that they did not want TNI personnel to be punished for actions they had taken as part of their ‘duty’ to eliminate GAM from the province, especially in circumstances in which former GAM fighters were being granted an amnesty. At the same time, certain elements of the national framework have also greatly complicated transitional justice in Aceh: in particular, a TRC in Aceh is supposed to be formed as part of Indonesia’s national TRC, but such an institution has been in limbo since late 2006 when the Constitutional Court ruled that the 2004 law under which it was to be established was invalid (in part because it provided for amnesty and hence legal immunity for perpetrators of gross human rights abuses).
The second element of broader context is the dramatic transformation of Aceh itself. Since the 2005 Helsinki peace agreement was signed, the level of post-conflict violence between the two sides has declined dramatically, with the consequence that Aceh is often promoted internationally as a role model of how to resolve protracted internal conflicts. Part of the reason for this success has been the climate of reconstruction and rebuilding that came in the wake of the peace deal and, even more importantly, after the devastating 26 December 2004 Indian Ocean tsunami. The recovery and reconstruction effort not only enhanced goodwill among former conflict actors, but also provided them with major economic benefits, cementing their commitment to peace. For present purposes, however, the most important part of the post-conflict climate has been the dramatic political transformation experienced in Aceh. At the heart of the peace deal was a political compromise in which supporters of GAM agreed to give up their demand for independence in exchange for the chance to compete for local political power in a more autonomous Aceh that remains part of Indonesia. In December 2006, Aceh held direct local elections to choose heads of local government. Irwandi Yusuf, a former GAM propagandist, and Muhammad Nazar, a former pro-independence student leader, were elected as governor and deputy governor. Then and in subsequent elections, former GAM combatants were also elected to head ten of Aceh’s twenty-three districts. This political transformation of GAM from a guerrilla movement into a central player in local official politics became even clearer during the 2009 legislative elections when Partai Aceh (PA), the party established as the vehicle of former adherents of the movement, won just under 50 percent of the vote for the provincial parliament. PA also dominated the election results in many district parliaments. Subsequently, in 2012, the PA candidates Zaini Abdullah and Muzakkir Manaf (prominent leaders of the civilian and armed wings of GAM respectively) were elected as the governor and deputy governor of the province.
This move of the former GAM combatants to the centre of political power in Aceh has mixed results for the transitional justice agenda. On the one hand, the movement itself contains many former combatants who themselves might have good reasons to fear an open and honest accounting of past abuses against civilians, as it is widely understood (but poorly documented) that many GAM combatants perpetrated violent acts not only against their military adversaries but also against civilians. The movement has also prioritized various other issues (such as fleshing out details of the new special autonomy granted to Aceh as part of the Helsinki peace deal) above transitional justice issues. On the other hand, the movement and its allies previously made campaigning against human rights abuses in Aceh a central plank of their international campaigning and might therefore be expected to retain at least some residual sympathy for justice approaches. Certainly, both Governor Irwandi Yusuf and his deputy Muhammad Nazar, at times (especially early on in their tenure) indicated their support for a Truth and Reconciliation Commission and various other elements of the transitional justice agenda, indicating the continuing influence of the human rights ideas they espoused when they campaigned against Indonesia and in favour of independence.
Having reviewed the broad context, we are now in a position to examine various elements of transitional justice which have become significant in Aceh.
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