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Amnesty

Closely related to the issues of prosecution and truth telling, but implemented far more successfully, were the amnesty provisions of the Helsinki MoU. Unlike in many transitional justice situations, in which amnesty is granted to government officials and allies who are human rights perpetrators, in the Aceh case there was a one-sided amnesty that applied only to former rebels and GAM members.

Two weeks after the MoU was signed in Helsinki, President Susilo Bambang Yudhoyono signed a Presidential Decree (No. 22 of 2005) granting a general amnesty to persons involved in GAM activities. Approximately 500 prisoners received remission and immediately released from jail on 17 August 2005. In total, more than 1,400 prisoners were amnestied and released. The amnesty typified the power configuration underpinning the agreement. It was granted to GAM members by the government, in a procedure approved by the constitution and which, in the eyes of government officials, was akin to a pardon for crimes against the state. It was never intended to be a general amnesty absolving all persons of responsibility for past crimes in the conflict and so was not as controversial as, for instance, the amnesty clause in the 1999 Sierra Leone peace accord.[1] During both the negotiations and the implementation of the MoU, it was never suggested by either party that the amnesty would apply to individuals from the government side. For government officials, such a provision would have been an admission of culpability that would have undermined their previous assertions that government troops had operated lawfully and within a framework for protecting human rights. That the amnesty applied only to GAM was, perhaps ironically, a sign of the government’s strength.

There were, however, two major controversies concerning the amnesty. The first and most serious question was how liberally the amnesty would be applied. It soon emerged that not all persons with GAM affiliations were released from jail. It was disputed whether the amnesty should apply to GAM members imprisoned for any crime carried out on behalf of the movement, as GAM argued, or would be restricted to those imprisoned only for narrowly defined political crimes against the state. The Minister of Justice and Human Rights at the time, Hamid Awaludin, repeatedly ruled against granting amnesty to persons imprisoned for crimes such as robbery and murder, saying that it applied only to those convicted of makar, or treason. Accordingly, the government initially refused to release from prison more than 100 individuals associated with the rebellion who had been convicted for general or civilian crimes as diverse as murder, narcotics possession and smuggling.

The head of the AMM was empowered by the MoU (article 5.2.f) to rule on disputed cases, but it was up to the Indonesian government, as the sovereign power, to release prisoners from jail and annul their convictions. Moreover, although AMM leaders knew they had a ‘strong card in the fact that the Head of the AMM could actually decide whether or not a person should be amnestied’, they wanted to avoid using this card because they believed it ‘would not have been conducive to the peace process and the mutual trust building between the parties.’[2] Eventually, the AMM brought in a Swedish judge, Christer Karphammar, to facilitate resolution of the outstanding cases by deciding on a list of the individuals to be amnestied, to which the two parties would then agree. Working with another AMM member, Karphammar emphasised quiet diplomacy, persuasion and absolute confidentiality (even secrecy) in his deliberations, coordinating with senior representatives of the two parties and with Pieter Feith, the head of the AMM. Judge Karphammar and his assistant worked through court documents and other materials. The judge based his decisions on two sets of criteria: connection of the crime to GAM’s struggle and its seriousness.[3] On this second matter, the judge himself, largely guided by his own ‘ethical judgment’, determined that persons convicted of ‘cold-blooded’ crimes against civilians would not be pardoned. In fact, much of the time for assessment was spent on determining whether a prisoner’s crime had been carried out on behalf of the movement.[4]

The AMM team members expended much effort to persuade Minister Hamid to broaden the amnesty beyond makar to incorporate other crimes. But, in a few cases, Judge Karphammar also determined that individuals involved in serious violent crimes against civilians should not be pardoned. Assessing far more than one hundred disputed cases, the judge decided that most of those prisoners should be released and that fewer than ten should remain in prison. A few of the more difficult cases were resolved when the government granted accelerated remissions rather than amnesties. Those who remained in prison included individuals involved in the bombing of the Jakarta stock exchange in September 2000, in which ten people died, and the killer of Dayan Dawood, a respected university rector. After considerable hesitation, both Minister Hamid and the senior GAM leader Malik Mahmud approved this negotiated outcome. The MoU parties declared the amnesty issue closed on 14 August 2006, meaning that ‘there were no disputed cases for the Head of AMM to decide upon’.[5]

Thus, a year after the signing of the MoU, the amnesty issue was formally closed. There was considerable bitterness and dissension in GAM ranks, however. Irwandi Yusuf, the GAM representative to the AMM (and later governor) was sidelined in the decision making and was reportedly angry with Malik Mahmud because the outcome meant that some of the movement’s supporters remained behind bars. Some GAM supporters say that those remaining in prison had been sacrificed in order to disassociate the movement from their acts and to absolve the leadership of guilt. The Forum for Justice for Acehnese Political Prisoners (Forum Keadilan Tapol/Napol GAM) formed and, with family members of prisoners and some other civil society groups, it campaigned for the release of the remaining prisoners.

While the outcome of the amnesty arguably prevented a serious breach between the parties and preserved the principle that there would be no immunity for perpetrators of serious crimes, the secretive nature of the deal meant that it was not presented to the public in this way.

Moreover, it was anomalous in that other GAM members who had not been arrested or imprisoned before the MoU, but who may have been responsible for equally serious crimes (or who even may have ordered the very crimes for which others remained in jail), did not face investigation or prosecution. It is not clear - and not widely discussed - whether such people are considered to have been amnestied for these actions.

The second controversial issue, also not widely discussed in public, concerns the one-sided nature of the amnesty and its implications for possible future human rights investigations and legal processes. Many military officers and some government officials privately argue that it would be unjust for government troops to be investigated and, in theory at least, prosecuted before a Human Rights Court while GAM members have been amnestied. During the deliberations leading to the passage of the LoGA in early 2006, members of former President Megawati Soekarnoputri’s Indonesian Democracy Party-Struggle (PDI-P) argued precisely this and proposed a general amnesty for police and army soldiers who had been posted to Aceh.37 This proposal was not incorporated into the law. However, government or military officials sometimes make similar comments, at least privately. For instance, some officials have privately floated the idea of watering down, or even abandoning, plans for a TRC and Human Rights Court, justifying this by saying that GAM members have been amnestied while members of the security forces have not.

In fact, although this matter is far from certain legally, it appears that the amnesty granted by the Presidential Decree would not confer immunity to GAM members for crimes against civilians, even though few GAM members are likely to be aware of this. After all, it was precisely on the grounds that they had committed gross or ‘cold-blooded’ crimes against civilians that a small number of GAM members remained in prison. Legal experts interviewed by the author have different views on this matter, but the weight of opinion seems to be that the amnesty does not close the door legally on future prosecutions of GAM members for crimes against civilians, even if nobody in authority in Aceh or Jakarta has any appetite for such prosecutions at present. Therefore, the argument does not appear strong that the amnesty for former GAM supporters would justify protecting other parties, such as the military.

  • [1] Priscilla Hayner, Negotiating Peace in Sierra Leone: Confronting the Justice Challenge,(Geneva, Switzerland: Centre for Humanitarian Dialogue, 2007).
  • [2] Robert Hygrell, ‘Case Study - Aceh Peace Process’, presentation prepared for CSCAPStudy Group on Preventive Diplomacy and the Future of the ASEAN Regional Forum,(Bandar Seri Begawan, 30-31 October, 2007), p. 6.
  • [3] According to some confidential sources, the AMM and Judge Karphammar also workedon the basis of the principles of an amnesty which had been agreed upon between theparties in Helsinki prior to the negotiation of the MoU. It is not clear, however, if theseprinciples were the same as the two named above, which were detailed by a very seniorparticipant in the process.
  • [4] Thus, for example, there were a number of prisoners convicted on narcotics charges whosaid that they had been involved in the marijuana trade to help fund GAM’s struggle;some common criminals also tried to take advantage of the amnesty by claiming GAMmembership.
  • [5] Robert Hygrell, ‘Case Study - Aceh Peace Process’, presentation prepared for CSCAP Study Group on Preventive Diplomacy and the Future of the ASEAN Regional Forum, (Bandar Seri Begawan, 30-31 October 2007), p. 7.
 
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