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Letter to US Department of Defense regarding US military assistance to Indonesia
Human Rights Watch - February 4, 2010
Dr. Robert M. Gates
Secretary of Defense
US Department of Defense
1300 Defense Pentagon
Washington, DC 20301
Re: US Military Assistance to Indonesia
Dear Secretary Gates,
We write to you concerning US military assistance to Indonesia. The planned visit of President Barack Obama to Indonesia later this year, in the wake of President Susilo Bambang Yudhoyono's reelection, brings with it the opportunity to reassess the military relationship between the two nations. Appropriate military assistance can help protect human rights in Indonesia while advancing the national security objectives of the United States. However, without the necessary reforms in place, such assistance may facilitate continued violations of human rights in Indonesia and reinforce impunity. At the end of this letter, we provide recommendations for a constructive and incremental approach to engaging with the Indonesian military (Tentara Nasional Indonesia, or TNI).
This letter identifies human rights concerns related to the TNI, with particular attention to Indonesia's special forces, Kopassus. We make recommendations on US engagement with the TNI and propose measures to encourage a professional, accountable, and rights-respecting military in Indonesia that is oriented towards external threats rather than internal control. It is vital that the US government use its leverage to support demands by Indonesian civil society for military reform that is genuine and sustained, rather than merely superficial.[1]
After the fall of Suharto's authoritarian regime, the ensuing reformasi included several steps to improve the human rights situation. The government formally withdrew the TNI from politics and separated the police from the TNI. The media was permitted much greater freedom, while human rights and other critical organizations were allowed to operate openly. The subsequent resolution of the long-running conflict in Aceh was also an important achievement that has reduced the level of human rights violations significantly. In September 2009 the Indonesian parliament took an important step forward in recommending an ad hoc court to investigate the enforced disappearances of student activists in 1997 and 1998, although the president has yet to act on it.
However, Human Rights Watch is concerned that security sector reform in Indonesia has stalled in areas essential to human rights protection, including accountability for human rights violations, ending military business, and reform of the territorial command structure.
Because of serious and longstanding abuses, several forms of military assistance have been subject to congressional restrictions. International Military Education and Training (IMET) funding was restricted following the 1991 Santa Cruz Massacre in East Timor. Following TNI's role in creating, training, and arming militias and directly participating in crimes against humanity in East Timor in September 1999, the United States cut all forms of assistance, including Foreign Military Financing (FMF) and commercial arms sales to Indonesia. For the next six years, congress imposed conditions for the resumption of these programs, including accountability for the crimes in East Timor and budget transparency of the military. Congress added a national security waiver for FY2005, which then-Secretary of State Condoleezza Rice exercised in November 2005. IMET funding resumed in FY2005 and FMF in FY2006. Export of lethal defense articles was permitted from March 2006.
Training and equipment for the TNI's elite special forces, Komando Pasukan Khusus, or Kopassus, remains restricted. Language in the Foreign Operations Appropriations Act bars training or equipment, and similar language in the Defense Appropriations Acts bars training only, to units credibly alleged to have committed gross violations of human rights, until corrective steps are taken.
1. Failure to Address Past Human Rights Violations and Remove Abusers
The US wants to train members of the TNI, including Kopassus soldiers, in ways that improve their respect for human rights. But training in international human rights and humanitarian law is only effective if there is the political will to reform and there are mechanisms to hold people accountable for misconduct.
Unfortunately, human rights abusers continue to serve and be promoted through the ranks of the TNI, notably in Kopassus. This practice obstructs institutional reform and sends a signal that committing abuses is not an obstacle to continued service and even promotion.
Human Rights Watch is particularly concerned about the January 6, 2009 appointment of Lt. Gen. Sjafrie Sjamsoeddin to the position of deputy defense minister. Sjamsoeddin has been implicated by witnesses and journalists in several notorious abuses, including the Santa Cruz Massacre, the "disappearance" of student activists in 1997 and 1998, deadly riots in Jakarta in May 1998, and the widespread violence by Indonesian troops and militias around the time of East Timor's referendum on independence in 1999. Sjamsoeddin has not been charged in connection with any of these incidents and in some cases investigative bodies cleared him of responsibility – however, these proceedings lacked credibility and independence. We welcome the decision by the US government in September 2009 to deny Sjamsoeddin entry into the US. It would be appropriate for the US to call for fresh, credible and independent investigations into these allegations.
The failure to hold anyone responsible for crimes against humanity that took place during the scorched-earth campaign in East Timor in 1999, and throughout the 24 years of Indonesian occupation, stands out as a particularly egregious example of impunity. The Jakarta ad hoc trials did not lead to the conviction of a single member of the military. The bilateral Truth and Friendship Commission did find that the TNI was institutionally responsible for crimes against humanity, and declined to recommend amnesties, but did not assign any individual culpability.[2] Below are several other illustrative examples of ongoing impunity, two of which implicate Kopassus and highlight the absence of accountability even after conviction by a military court:
Murder of Papuan activist Theys Eluay: On November 10, 2001, Theys H. Eluay, a traditional leader and the head of the Papua Presidium Council, a forum for the peaceful achievement of independence, was abducted and killed after leaving an event at the Kopassus barracks in Jayapura. His driver, Aristoteles Masoka, escaped and, according to his father, went to Kopassus headquarters to report the attack to the ranking officer, Lt. Col. Tri Hartomo.[3] He has not been seen since and is presumed dead. In April 2003, a military court in Surabaya found Lt. Col. Hartomo and six other Kopassus members guilty of mistreatment and battery leading to Eluay's death, but not of murder. Sentences ranged from two to three-and-a-half years' imprisonment. Hartomo and one other soldier were supposedly discharged from the army. However, Hartomo is now a full colonel and serves as commander of Group 1/Parako, a senior position in the Kopassus leadership. Enforced disappearances of students: In 1997 and 1998, the last days of the Suharto regime, 23 student activists were abducted. Nine were later released, one was found dead, and 13 have never been found. In 1999 a military court convicted eight Kopassus officers and three non-commissioned officers of kidnapping. The tribunal only covered the abduction of those found alive, but not the "disappearances." Of the 11 military personnel convicted, seven were known to be serving in the military as of 2007, and all had received promotions.[4]
The military court did not examine command responsibility for the kidnappings. A military honor board that did investigate three senior officers concluded that although the 11 men in the unit had acted on their own, their superiors bore responsibility for the actions of their subordinates. The three were former Kopassus commander Maj. Gen. Prabowo Subianto, who was honorably discharged, while his successor Gen. Muchdi Purwopranjono and Group IV commander Col. Chairawan were transferred from their posts.[5] Despite its findings of command responsibility, as well as reports that the team had received orders from above to carry out the kidnappings, the board did not exercise its authority to recommend a trial.
In September 2009, the Indonesian parliament (Dewan Perwakilan Rakyat, or DPR) acted on a report of the National Human Rights Commission and recommended creation of an ad hoc court to prosecute those responsible for the enforced disappearances. The National Human Rights Commission named Sjamsoeddin, the Jakarta Regional Military Commander at the time of the incidents, as one of 20 suspects in the abduction, "disappearance," and killing of the student activists. However, to date no progress has been made toward establishing the court, which will require a decision by the Indonesian president.
Should the president order the creation of such a court, it will only succeed if Kopassus cooperates by making documents and personnel available to prosecutors. A credible trial would bring justice for the "disappeared," and help clear a cloud hanging over the military and Kopassus in particular.
Munir Said Thalib: The 2004 assassination of leading human rights lawyer Munir Said Thalib appears to be connected to ongoing impunity for the senior military officers behind the student disappearances. In 2008 a Jakarta court tried retired Maj. Gen. Muchdi Purwopranjono on murder charges for ordering the fatal poisoning of Munir while the activist was traveling to the Netherlands by the state airline Garuda Indonesia. The former Kopassus commander, one of those removed from his job by the military honor board, had left the military for a senior position in the State Intelligence Agency. Prosecutors alleged he held a grudge against Munir for exposing Kopassus' role in the enforced disappearances.
Muchdi was acquitted following a controversial trial in which some witnesses failed to appear and others changed their testimony from that previously given to police investigators. While the Supreme Court declined to overturn his acquittal, they have not yet made the basis for their decision public. A case review (peninjaun kembali) is still possible under article 263 of the Indonesian Code of Criminal Procedure, based on new evidence or on a finding of contradictory reasoning or other errors by the judges. Local advocates are pushing for the naming of a more effective prosecutor to request such a review. Authorities should also investigate signs of witness intimidation in the original trial.
2. Recent human rights violations
Many of the worst military abuses date to the Suharto-era and the first years of transition, prior to resolution of the conflict in Aceh. However, serious rights violations continue to take place, especially in the provinces of Papua and West Papua.
In June 2009 Human Rights Watch issued a report on Kopassus abuses in Merauke, Papua, entitled "'What Did I Do Wrong?'". Interviews with victims and eyewitnesses revealed a pattern of arbitrary detention and ill-treatment. Local police were powerless to respond. Kopassus met with Human Rights Watch and published a rebuttal on their website on December 1, 2009, which contains several errors. However, according to knowledgeable sources, rather than investigating the claims, Kopassus soldiers intimidated at least one of the victims and the victim's father mentioned in the report.
In 2007, Indonesian marines shot protesting farmers in an incident that was reminiscent of Suharto-era repression and highlighted the dangers of military-controlled business. Decades earlier, the navy had expropriated land from several villages in the East Javanese district of Pasuruan for a training facility. According to Indonesian nongovernmental organizations that have researched the case, the navy then leased it to a state-owned enterprise and provided paid security for that company's sugar cane plantation. On May 30, 2007, after villagers protested the bulldozing of their productive land, the marines opened fire, killing four villagers and wounding eight. In August 2008, the Surabaya Military Court sentenced 13 marines to sentences of only 18 months to three-and-a-half years in prison. The navy rotated two senior officers from their posts but failed to investigate or prosecute anyone for command responsibility.[6]
In another incident, on May 18, 2008, several Indonesian marines and naval officers from the navy headquarters, Lantamal X, assaulted a young Papuan couple on Hamadi beach, Jayapura, and forced them to attempt sexual acts. Despite promises from the Lantamal X commander, Brig. Gen. Giarto, to find the perpetrators, there have been no arrests.
The Indonesian military should ensure that such violations are independently and transparently investigated and that those responsible are punished, including those with command responsibility. Such abuses also indicate continued structural problems, including an inappropriate role in internal security and involvement in military business, and above all the continued absence of mechanisms to hold perpetrators accountable. These structural problems are discussed below.
3. Military courts
The Indonesian military justice system has a record of limiting prosecutions to low-ranking members of the military and sentencing those convicted of serious crimes to extremely light sentences. Furthermore, military courts are so closed to the public that it is impossible to confirm the basis for the verdicts or even whether the perpetrators serve their sentences.
There is broad-based agreement in Indonesia on the urgent need to update the military justice system, which was created under authoritarian rule and set up to shield soldiers from the jurisdiction of civilian courts for human rights violations. People's Consultative Council Decision No. VII of 2000 and article 65(2) of Law 34 of 2004 on the TNI both state the principle that soldiers are subject to the authority of the civilian courts for violations of the criminal code, and to military courts for infractions of the military criminal code. Leaders of the main factions in parliament have expressed support for jurisdictional reform, as has President Yudhoyono. However, the legislature has not yet translated this broad principle into specific reforms in law and practice.
Unfortunately, a bill to have members of the military tried in civilian courts for criminal acts, including human rights abuses, did not make it out of the legislature before the end of the 2009 term. This was due largely to the opposition of the military and the Ministry of Defense to allowing investigations by civilian police. However, the use of military police would reduce the independence and impartiality of the judicial process, allowing commanding officers to curtail investigations.
We recognize that in the United States, military personnel are subject to concurrent jurisdiction by military and civilian courts for criminal offenses. Whatever the US practice, it is important that US military officials understand that the situation with respect to military justice in Indonesia is not analogous to the practice of the US armed forces. Indonesian military courts lack credibility and any independence. They have routinely failed to conduct serious investigations and have long staged sham trials. The Indonesian military justice system simply does not have the credibility of the US system under the Uniform Code of Military Justice.
International human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving human rights violations against civilians by stating that the jurisdiction of military courts should be limited to offenses that are strictly military in nature. The UN Human Rights Committee (HRC), which monitors implementation of states' obligations under the International Covenant on Civil and Political Rights (ICCPR), has repeatedly called on states parties to subject military personnel, alleged to have committed human rights violations, to civilian jurisdiction. According to the HRC, the "wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations."
Alleged human rights violations by Indonesian soldiers should thus be under the jurisdiction of the civilian justice system. Indonesia's civilian police, prosecutors, and courts need to improve their competence and reduce corruption, but they are comparatively open and independent, as they are outside the highly politicized military chain of command (unlike military police and prosecutors).
The National Human Rights Commission (Komisi Nasional Hak Asasi Manusia, or Komnas Ham) should have jurisdiction for inquiries into alleged gross human rights violations by members of the military. Law No. 26 of 2000 on Human Rights Courts already mandates such a process, but legislation restricting the jurisdiction of military courts would address the military's refusal to acknowledge the authority of the commission to call them for questioning, as occurred during inquiries into the "disappearances" and the Semanggi and Trisakti shootings.[7]
Similarly, the Anti-Corruption Commission should handle alleged cases of corruption involving members of the military.
While primarily criticized for leniency and absence of transparency, the Indonesian military justice system also does not provide military defendants with many of the basic protections found in the civilian Code of Criminal Procedure, including the right to a speedy trial, right to counsel throughout the process, and access to family members or medical treatment.
4. External threat orientation and reform of the territorial command structure
Although the TNI's formal societal and political role (dwi fungsi) has ended and its role in internal security reduced, the structure built to achieve these ends remains in place. The presence of the army at the local level allows continued involvement in businesses, law enforcement, and, to some extent, politics.
The number of commands has increased during the reformasi period, even as functions like counterterrorism and disaster response are added to the territorial command structure. On November 12, 2009, the newly sworn in army chief of staff, Lt. Gen. George Toisutta, announced the intention to create two new regional military commands in West Kalimantan and West Papua provinces.[8] Efforts to reinforce the territorial command structure serve as an alarming reminder of the failure to implement serious structural military reform. The Papua Caucus of the Regional Representatives Council (the Indonesian senate) and many civil society organizations have warned that such a step may undermine peace efforts in Papua, consume resources that could be used to improve the welfare of soldiers, and exacerbate the overlap of functions between the army and the police.
In Papua, military posts in areas bordering Papua New Guinea are frequently located right in the middle of the village in order to monitor the movements and activities of villagers, treating every civilian as a possible security threat rather than focusing military activities against armed groups and external threats. As a result, some soldiers harass, extort money from, and in some cases use violence against villagers. The TNI rotates four army battalions along the 760-kilometer border, assigning them to more than 120 villages.
Numerous independent experts have declared the territorial command structure outmoded and ill-suited for a maritime state, while civil society groups have challenged its continuation on human rights grounds. Soldiers posted to the district and provincial levels carry out legal and illegal business activities, human rights violations, and surveillance of government critics.
5. Civilian Supremacy
Despite official claims by the Indonesian military leadership that the TNI now follows civilian authority, the transition is far from complete. The commander of the TNI reports directly to the president, bypassing the civilian minister of defense. The commander of the TNI has the same status as the minister of defense and retains significant influence on policy.
The Ministry of Defense is itself largely staffed by uniformed military personnel, undermining the principle of civilian supremacy. The president issued a decree ordering the formation of a military business "Oversight Team" in October 2009, but an opportunity to increase civilian control was lost when the minister of defense appointed as chairman a major general, in his capacity as director-general of defense capacity. Lt. Gen. Sjafrie Sjamsoeddin's recent appointment as deputy defense minister is another worrying example, and may be a violation of the 2004 TNI law, which bars serving officers from occupying political posts.
The armed forces chief issued an instruction and a manual on political neutrality in 2008, and the military has not interfered in recent elections. However, all major political parties have retired generals as part of their leadership or advisors. The campaign teams of all presidential candidates in 2009 included former members of the military, giving the retired generals clout following the elections.[9]
While the budget goes through the Ministry of Defense, the ministry has limited control of policy or its execution. The TNI commander should report to the minister of defense, who should also have clear responsibility for setting overall defense policy, including the creation of new regional commands.
6. Military business
Since its inception, the TNI has operated a vast businesses network, with ownership stakes in everything from security companies to airlines. Ostensibly a source of financing for operations and soldiers' welfare, the businesses primarily enriched officers, while undermining civilian supremacy and contributing to human rights violations, as documented in Human Rights Watch's 2006 report, "Too High a Price."[10]
Recognizing the need to get the military out of business, the parliament passed Law No. 34 in September 2004 that required the government to shut down or take over all TNI businesses by October 16, 2009. While the law did not clearly cover illegal and informal businesses, it represented a landmark commitment. As the five-year deadline drew near, however, the government had not implemented the required transfer of businesses. While sell-offs and business failures had reduced the scale of its business empire, the armed forces still retained extensive holdings.
On October 11, 2009, as the five-year deadline approached, President Yudhoyono issued a decree, which was followed by a more detailed ministerial regulation, creating an inter-agency Oversight Team. The new cabinet identified military business reform as a priority for the first 100 days of the new administration, and pledged that the team's review would be complete by August 2010. Even if the government appears to finally be taking this problem seriously, we have significant concerns about the government's plans, namely:
Recommendations
In light of the above, Human Rights Watch makes the following recommendations to the US government:
1. Conditions for limited engagement with Kopassus: Any branches or units of the military that do not hold their members accountable for human rights violations, are unsuitable partners for training and assistance. By any measure, Kopassus does not meet the minimum requirements for US training and assistance. Before providing even pilot, non-lethal training to carefully vetted members of Kopassus, the US should determine that:
2. Conditions for full military ties: We are aware that many in the US military and administration would like to resume full military ties without conditions, including the provision of combat training and equipment for Kopassus, for political, security, and counterterrorism purposes. This would be a mistake. Resumption of full military ties should be contingent on essential structural reforms that will make Indonesia a more reliable partner, will reduce the likelihood of future abuses, and avoid endless discussions in the future about the suitability of US-Indonesian military relations. The US has significant leverage to achieve reform. We think these structural reforms should include:
Yours sincerely,
Brad Adams
Executive Director
Asia Division
cc:
[1] The police also play an important role in the security sector, and problems with abuses by police throughout Indonesia have been documented elsewhere. In this letter we limit our comments to the role of the military.
[2] The Truth and Friendship Commission, which included members appointed by the Indonesian government, recommended, as a means to avoid the recurrence of violence that took place in East Timor in 1999, "a transformation of military doctrine and institutional practices and mentalities... to the kind of professional armed forces appropriate for a modern, democratic state operating under the rule of law and civilian control." The commission also recommended reforms to increase the effectiveness of institutions charged with investigating and prosecuting human rights violations by security forces. Final Report of the Commission of Truth and Friendship, Indonesia-Timor Leste, March 31, 2008.
[3] "Keluarga Sopir Theys Mengadu ke Komnas HAM [Family of Theys' Driver Appeals to National Human Rights Commission]," Tempointeraktif, July 27, 2004, http://www.tempo.co.id/hg/nasional/2004/07/27/brk,20040727-43,id.html (accessed January 4, 2010).
[4] Their last known rank and positions are: Lt. Col. Yulius Selvanus, Deputy Commander Group-1/Parako; Lt. Col. FS. Multhazar, District Military Commander in Jepara (Kodim 0719); Lt. Col. Untung Budi Harto, District Military Commander in Ambon (Kodim 1504); Lt. Col. Dadang Hendra, District Military Commander in Pacitan (Kodim 0801); Lt. Col. Djaka Budi Utama, Commander of Battalion 115/Macan Lauser in Aceh; and Maj. Fauka Noor Farid, commander of a Raider unit in Aceh.
[5] Ministry of Defense of the Republic of Indonesia, "Peristiwa Penculikan [Kidnapping Incident]," http://www.dephan.go.id/fakta/p_penculikan.htm.
[6] Kontras, "Shooting of Farmers during Peaceful Protest in Alas Tlogo, Pasuruan, 30 May, 2007," undated, http://www.kontras.org/data/Alastlogo%20Report,%20English%20Version.pdf (accessed January 4, 2010) and Imparsial, Politik Militer Dalam Penguasaan Tanah: Belajar dari Tragedi Pasuruan 2007, February 2009.
[7] In another outstanding case from 1998-9, 33 students were killed and more than 300 injured in three incidents in which the military, including sniper teams, fired on protestors. Military courts prosecuted the Trisakti and Semanggi I and II killings, resulting in typically light sentences for low-ranking defendants.
[8] "KSAD: Akan Ada Kodam Baru di Pulau Papua [Army Chief of Staff: There will be a new Kodam in Papua]," Kompas, November 12, 2009, http://cetak.kompas.com/read/xml/2009/11/12/03132792/ksad.akan.ada.kodam.baru.di.pulau.papua (accessed January 13, 2010).
[9] The head of President Yudhoyono's campaign team in 2004 was later named head of the State Intelligence Agency. In 2009, Yudhoyono's team was headed by former commander-in-chief Djoko Suyanto and included former Aceh commander Djali Yusuf
[10] See Human Rights Watch, Too High a Price: The Human Rights Cost of the Indonesian Military's Economic Activities, June 2006, http://www.hrw.org/en/reports/2006/06/20/too-high-price.
[11] For a detailed critique and recommendations to the government of Indonesia, see Human Rights Watch, Unkept Promise: Failure to End Military Business Activity in Indonesia, January 11, 2010, http://www.hrw.org/en/reports/2010/01/12/unkept-promise-0.
[12] Human Rights Watch remains concerned that some Department of Defense officials express skepticism about the importance of accountability and fear that postponing or limiting interactions with Kopassus will result in closer relations between TNI and China's People's Liberation Army. The US should encourage the establishment of a viable security partner that is capable of holding its forces to account, not simply based on a perception of a perceived need to win political favor in Jakarta or keep the Chinese armed forces from having close relations with the TNI.
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