What is a Truth and Reconciliation Commission?
1. A body which conducts a comprehensive and unfettered investigation into all human rights violations included in its mandate with the purpose of uncovering the truth about such violations so that victims and their families:
a. can be heard and listened to
b. can believe that the violations will not occur again
c. can believe that the government wants to put in place new laws and political systems to ensure the violations will not happen again
d. can finally reconcile with the perpetrators and the government that failed to protect them.
2. A body which is not a substitute for a criminal court but purely focused on making public records of victim and witness testimony and producing a written and public history of human rights abuses which becomes the first step to real, long term and widespread reconciliation.
3. If a TRC is encouraged to get to the truth by granting amnesty, reconciliation will be compromised because victims and their families will feel compromised. Prior experience in South America has shown that truth commissions cannot replace formal legal justice administered to the violators.
4. If a TRCs mandate is usurped by a criminal trial or political action its investigation is not complete and it cannot publish the whole truth. Similarly, if a TRC is designed to replace a criminal trial, while it may be able to perform the truth part, it will fail to produce true reconciliation.
The Indonesian Bill
1. General Comment On its face the Indonesian Bill purports to set up a Commission that is an alternative to criminal trials. The Indonesian Bill does not appear to set up a TRC but rather is aimed at legally cementing the immunity the perpetrators have enjoyed to date and not at achieving either truth or true reconciliation.
2. Amnesty for Truth not Forgiveness Places far too much emphasis on amnesty; especially as the amnesty under this Bill is to be awarded in return for forgiveness from the victims rather than for truth telling. This means that (a) truth takes a backseat to forgiveness of the perpetrator (b) once again the pressure is on the victim.
3. No Procedural Guidelines This Bill does not provide procedural guidelines i.e. are hearings public or private; can the commission subpoena witnesses. These are key concerns as it is vital to the success of the TRC that people know exactly how the process will work and what their options are for coming forward.
a. People need to feel that it is safe to come forward and that it will be worth their while taking the risk and reviving the memories. If they do not, they will not come forward and the TRC will fail.
b. Many victims will want the safety and publicity of open hearings, others will want to deal with it in private; some will want to talk alone, others will want it to be a group exercise. If really going to access the truth, need to provide witnesses with options they can choose from to optimize their willingness to come forward and speak the truth.
c. At the same time the Commission needs to know what resources it may need and how to allot those it has.
4. What is a gross violation of human rights? “Gross violation of human rights” has not been defined in the Bill. It must be defined and must be defined to include conspiracy and not simply the act itself.
5. Timing The Bill provide for the TRC to operate for 5 -7 years. This is too long for people to wait. There needs to be more momentum in order to get people reacting to the commission.
6. Independence and Real Power The TRC must be independent from the government. This Bill has provided for a far too intrusive role of the President and government.
a. Victims may be hesitant to come forward now in the fear that the government/President may change during the life of the Commission and the new administration will not support the TRC and victims may then be punished for telling the truth. Similarly, if the administration does change and the TRC fails, victims will once again feel victimized by the government and more harm than good will have been done.
b. This Bill does not give the TRC the power to grant reparations or amnesty. If the commission can’t guaranty amnesty or reparations it is useless. Why should any one confess on the basis of a promise of a recommendation for amnesty.
c. This Bill does not give the TRC the power to provide protection to those victims who speak out. This is necessary.
d. This Bill does not make clear that the reports of the TRC will be its own without edits from the government or other body.
7. Transparency It is not possible to build trust in and respect for the TRC amongst the public unless the process is transparent, well explained and well publicized. A TRC is for the benefit of the people, not the government – what is the point of a TRC if the entire process is not transparent to all the nation?
a. This Bill does not allow non Indonesians to sit on the TRC. This is a mistake. A key factor in the success of a TRC is its transparency and accountability. By requiring international observers or participants to become involved, the TRC will appear more transparent. By banning them, questions are raised.
b. Reports must be public and frequent. Section 6(e) provides for reports to be annual and only given to the government and supreme court. Section 12 specifically says sub committee reports must be concealed[?] and confidential.
8. Witnesses Section 6(a) limits the TRC to receiving complaints from the violators, victims or victims families. This is too narrow. In many cases, especially in the early months of the TRC, the victims and families will be too nervous to come forward and it may well be that only community organizations or NGOs are willing to make the complaints. Internally inconsistent with this, Section 18 gives the sub commission the right to receive complaints from third parties.
9. Reconciliation has meaning for both the past and the future The TRC has not been asked to make recommendations for legal or political reform which would avoid a repeat of the violations.
a. If Indonesia truly wants reconciliation it must be willing to show the error of its ways by implementing permanent changes and improvements to its political, legal and military systems so that people of Indonesia can be comfortable that these crimes wont be able to be repeated.
b. Note that the report of the first TRC, in Argentina, was called Nunca Mas – Never Again.
10. There is no relationship between reparations and compensation
a. This Bill provides that if a victim receives compensation then the perpetrator must get amnesty. This makes no sense at all. These are two separate principals. Amnesty should be given in only rare and unusual situations in order to access the truth. Reparations go to the reconciliation part of the commission – they are aimed at helping people to come forward and talk thereby getting at the truth but also at helping to repair the lost trust and dignity. It’s an affirmation that they have been heard.
b. If the Commission is required to recommend amnesty for any violator that is forgiven by the victim – doesn’t this create incentive for the violator to attempt to influence the victim all over again?
c. In addition not that Section 28 (1) and 29(1) are internally inconsistent.
d. Notwithstanding the foregoing, this Bill provides that a grant of amnesty be decided within 3 months but compensation within 3 years. The timing differential appears grossly inequitable.
11. Amnesty needs to be limited The Bill needs to make clear that when amnesty is given it is only given for the crime confessed to – not all crimes committed by the perpetrator.
12. The TRC must include representatives of the perpetrators In addition, why are members of the Army and POLRI excluded? Its been proven very effective to have these people on board so that proper respect is given by those institutions to the process and adequate access to records and individuals facilitated. Note comments above regarding inclusion of non Indonesians.
13. Budget This Bill does not address budget concerns The budget needs to be dealt with at the commencement of the process so that the TRC is not beholden to the government – see note 5 above - Independence.
14. As drafted, the Bill will not allow the TRC to achieve its stated aims of:
a. ascertaining the truth The TRC cannot guaranty either amnesty, reparations or protection for speaking out.
b. upholding justice A TRC should not be an upholder of justice – that is for the courts, but, in any event, this TRC could not uphold justice because the Bill requires that if a victim (who may well have been pressured by the perpetrator) forgives the perpetrator, the perpetrator must be given amnesty.
c. establishing a culture that values human rights If a violator can be granted amnesty simply for speaking out, this establishes a culture which promotes human rights abuses. If reparations must be denied simply because amnesty is not granted, reconciliation cannot be achieved. Finally, by not asking for recommendations for new laws and political systems to avoid repeat abuses it appears the Indonesian government does not really want to change anything and this TRC is all about forgiving the wrongdoers.
d. National Unity Further divisiveness and district in Indonesia will be created if this TRC fails, or is not conducted openly, independently (with full power to reward compensation and amnesty) and conclusively (with enough time, self control and resources to complete all stated objectives).
Posted on 2005-04-11