Built into the Bedrock: Roadblocks to Accountability for Cases of Gross Human Rights Violations in Indonesia

On November 23, 2000, the Indonesian Parliament passed the Human Rights Court Law (Law Number 26 of Year 2000), which established a special court to try the international crimes of crimes against humanity and genocide as part of Indonesia’s domestic judicial system. As one of the only domestic courts in the world to adjudicate international crimes, the Human Rights Court offered an opportunity to address a legacy of gross human rights violations committed during the 32 years of former President Suharto’s “New Order” regime. While three incidents of gross human rights violations were ultimately adjudicated under this system in the early 2000s, no cases were heard by the Court from 2006 until 2022, when Indonesian President Joko “Jokowi” Widodo instructed the Attorney General’s Office to take tangible steps to resolve past cases of gross human rights violations.
This thesis broadly investigates how the structure and implementation of Indonesia’s Human Rights Court process has failed to keep perpetrators of gross human rights violations accountable. Procedurally, more than a dozen cases of gross human rights violations have not been tried because the Attorney General’s Office has rejected the pre-investigation into these cases conducted by the National Commission for Human Rights over nearly two decades. Per the procedure set under Law No. 26/2000, the Attorney General’s Office is tasked with investigating and prosecuting cases of gross human rights violations, after accepting a pre-investigation report completed by the National Commission for Human Rights; however, vaguely-worded provisions specifying the standard that the pre-investigation must meet before it will be accepted by the Attorney General’s Office have enabled the Attorney General’s Office to continuously refuse to investigate these cases.
Through a close reading of the legislative history of Indonesia’s Human Rights Court Law, this thesis finds that the parliamentarians who ultimately promulgated the Human Rights Court Law not only raised concerns over these vague provisions during the legislative debates, but actually agreed to revise the formulation of these specific clauses to clarify their phrasing and elucidation so as to prevent the back-and-forth of cases that transpired for 17 years. The author argues that contingencies in the law-making process, including the closed-door “lobby session” to compromise on disagreed-upon matters in the law, resulted in the omission of these phrases in the law’s final form. These vague standards have allowed “external” factors, such as political will, to play an outsized role in influencing the Human Rights Court process. This thesis therefore complicates the long-standing narrative that the parliamentarians debating the draft law deliberately intended for cases of gross human rights violations to not progress past the pre-investigation stage. Further, this thesis explains how structural issues with Indonesia’s legislative process have since hindered the Human Rights Court’s implementation. In doing so, this research hopes to support ongoing advocacy efforts to revise Law No. 26/2000, with the goal of ending the cycling of impunity for gross human rights violations in Indonesia.

Keywords: History
Indonesia
Human rights
Law
Indonesian Human Rights Court
Reformasi
Indonesian History
Text
Thesis
Advisor: Naimark Norman
Cohen David