Does the Indonesian government adequately protect human rights?

It does and it does not; it really depends on the context. Indonesia looks good among its neighbours in Southeast Asia in terms of protection of civil and political rights, and to some extent economic, social and cultural rights, although room for improvements exists.

But one of the promises of the current president, Joko Widodo, during his 2014 campaign was about international criminal justice, which involves rights for many victims of past cases of human rights abuses in Indonesia. In that sense, it does not protect these rights, including the rights to justice, truth, reparations or guarantees of non-recurrence.

For example, in the case of the conflict over independence for East Timor in 1999, there were many gross violations of human rights. However, there has never been any sort of effective judicial process to address gross violations of human rights, and crimes against humanity in particular.

In 1965–66, during the government’s violent anti-communist operations, 500,000 people or more were killed. Indonesia’s National Commission on Human Rights was tasked with conducting an investigation into this period within its limited mandate, but it led to nothing; there have never been any prosecutions relating to these crimes.

The election promise of the current president was to deal with a number of these past human rights cases, and this promise has not been met at all. His opponent in 2014, Prabowo Subianto, was a former military general involved in alleged past human rights abuses, so it was politically expedient to make such a promise. But it has not been pursued in office.

In 2000, Indonesia established its own Human Rights Court. What is your assessment of its record?

Some human rights activists suggested that the establishment of the Human Rights Court took place under international pressure following the independence of East Timor. To avoid international scrutiny, for example the creation of an ad hoc international tribunal, the government established this court.

Based on the report of the International Commission of Inquiry on East Timor in 2000, it was indeed recommended that an international human rights tribunal be set up. Indonesian government rejected the proposal with strong assurances that it would provide justice for atrocities committed by its nationals. So it is fair for some to see the establishment of Indonesia’s Human Rights Court as a political move by the government at that time, in order to avoid scrutiny by the international community.

When it comes to performance, the Human Rights Court actually investigated and prosecuted cases relating to atrocities in East Timor. There were around 100 suspects identified, and 18 were put on trial. Out of these 18, only one trial, of Eurico Guterres, ended in a conviction for crimes against humanity. However, the Indonesian Supreme Court cleared Guterres of all charges in 2008. So the Human Rights Court did take steps, but the net result amounted to essentially nothing. Impunity remains.

So it has not lived up to its mandate, but there is another factor, which is that the founding law of the Human Rights Court does not accommodate international standards of criminal justice. It only covers two of the four categories of crime as outlined in the Rome Statute – crimes against humanity and genocide. It also does not provide adequate protection for victims and witnesses. So there are issues not only with the performance of the Human Rights Court but also with the legislation establishing it.

Why hasn’t Indonesia become a party to the Rome Statute to join the ICC?

The main opposition came from the military, because they were afraid of being targeted by the ICC. There was also a lot of discussion about Indonesia’s ‘sovereign right to prosecute’.

But what those opposing failed to understand is that the ICC is bound by temporal and territorial boundaries, meaning that it will not intervene if the state in question is able and willing to prosecute. So I think accession to the Rome Statute has not taken place because of this misunderstanding.

I think another factor since this was initially raised is there is a focus on other issues. Indonesia is an emerging country economically; there is a focus on building infrastructure. So many in government feel like they are done with the past. But for the millions of victims of past crimes and their families, the past is not done.

So it’s very important at this point in the country’s history to revisit the commitment to international criminal justice to be able to contribute to sustainable peace and development.

What steps could the Indonesian government take to improve how it handles these issues?

The establishment of the Human Rights Court was an important starting point, but clearly there has to be significant reform, both in terms of the substantive law underpinning it and its procedures.

Clearly the domestic laws need to be reformed, but also, an effort needs to be made to improve the courts capacity in terms of manpower and logistical support. This is why the government needs to restart the discussion about becoming a party to the Rome Statute. Through the outreach programme of the ICC, this would give the Human Rights Court the capacity, in terms of manpower and logistical support, to tackle past human rights violations in Indonesia, which the Human Rights Court is currently lacking.

Only if these two steps are taken – reforming the domestic Human Rights Court and restarting discussion about becoming a party to the Rome Statute – will the Indonesian government be able to say it has made progress on international criminal justice.

The Indonesian government is actually running for a seat on the UN Security Council for the period of 2019–20. So I think it is an urgent discussion that the Indonesian government needs to have before it makes another pledge to contribute to the maintenance of international peace and security. It is difficult to have sustainable peace without justice.

This paper is part of a broader Chatham House study which assesses the global response to illegal logging and the related trade.

The Indonesian government has taken a number of important steps to tackle illegal logging and the associated trade, most notably with the ratification of the Indonesia–EU FLEGT voluntary partnership agreement in 2014. The process of negotiating this agreement has contributed to the introduction of a national timber legality verification system (SVLK), clarification of the relevant legal framework and significantly improved engagement with stakeholders in the forest sector. There have also been important developments in recognizing indigenous peoples’ tenure rights to forest land and resources.

However, implementation and enforcement challenges remain. In particular, progress is hampered by a poorly functioning decentralized governance system, persistent corruption and insufficient transparency of information.

The private sector has responded positively, with growing awareness of the issue of illegal logging. While uptake of voluntary legality verification has recently declined, with the need for this now circumvented by the introduction of the SVLK, the area of forest certified as being managed sustainably increased in 2012.

An analysis of data on timber production and consumption suggests that illegal logging has decreased since 2000, and the findings of the expert perceptions survey tend to confirm this for the period 2010 to 2013. In part, these findings reflect a shift towards plantations and away from natural forest harvesting. However, legal ambiguity over the permitting process for forest conversion may mean that levels of illegality are higher than these data suggest.

Building on the government’s response to illegal logging will require effective implementation of the SVLK including addressing identified shortcomings. Improved land-use planning to support effective control and monitoring of forest conversion is also needed. Increased resources and training for enforcement officials are required, while efforts to tackle corruption in the sector should be stepped up. The government should clarify the rights of indigenous peoples through concrete actions such as developing clear processes for mapping and registering their land claims.

Today Indonesia begins issuing the first ever FLEGT licenses for timber exports bound for the EU market. A major step in the battle against illegal logging and trade in illegal timber, these licenses are issued under a national system to verify the legality of all timber and timber products. A commitment to licensing its timber exports to Europe was made in the country’s Voluntary Partnership Agreement (VPA) with the EU, although the licensing system applies to all exports and to the domestic market. The scale of this achievement can not be underestimated given the size of the country and of its forest sector – there are hundreds of thousands of forest enterprises ranging from large-scale concession holders and processing industries, to smallholders and micro-scale loggers, saw-millers and manufacturers.

It is also remarkable given the state of Indonesia’s forest sector at the turn of the century. Looking back to 2000, rule of law was all but absent and corruption was rife - with the allocation of concessions and timber industries closely tied with the country’s ruling elite. Widespread logging contributed to the high rates of deforestation seen at the turn of the century, which stood at over one per cent per year.

In 2016, the forest sector is vastly different – there are much higher levels of accountability and legal compliance, the result of the considerable effort and resources that have been put into enforcement and anti-corruption efforts. The sector is also much more open, reflected both in the significant improvements in the availability of forest data and legislation as well as the increased space that has been made available to civil society to participate both in policy processes and in monitoring of the sector.

These improvements are the result in large part of the reform processes that have been enabled and supported by the VPA process, for which negotiations began in 2007. However, the process is far from complete and the issuance of FLEGT licences is best viewed as a marking point in an ongoing trajectory towards establishing a legal and sustainable sector.

If we take 2000 as the starting point of this trajectory, with FLEGT licensing as the midway point, this brings us to just beyond 2030, the target date for the UN’s global agenda for sustainable development of which the Sustainable Development Goals (SDG) are an integral part. The SDGs provide a broader framework for considering what further progress is needed in the coming years both to improve legality and to ensure that the forest sector makes a positive contribution towards achieving widespread sustainable development in Indonesia.

There are a number of factors that risk the achievement of these aims. Key challenges that remain in the country’s forest sector include the high levels of informality in the small-scale sector, corruption, limited transparency and pressure on forests from other sectors (as highlighted in the report 'Illegal Logging and Related Trade. The Response in Indonesia').

As noted, there are hundreds of thousands of forest enterprises in the country, many of which – particularly small-scale businesses – operate informally. Further concerted efforts are needed to ensure that these enterprises are not excluded from the formal market, but are able to contribute to a thriving economy – for example, through continued support for certification, as well as much greater investment in the provision of extension services and further reforms to establish a policy framework that facilitates the growth of small businesses (see 'Improving Legality Among Small-Scale Forest Enterprises'). This will make an important contribution to the achievement of SDG 8, to enable ‘decent work and economic growth’, this including the target [8.3] to encourage the growth of small enterprises.

Both corruption and limited transparency also need to be addressed if widespread legality and sustainability are to be achieved in the forest sector. Transparency has improved greatly in the forest sector, with significant improvements to the availability of information and the establishment of independent monitoring by civil society. However, further progress is needed to improve the accessibility of information, not least to ensure that NGOs are able to fulfil this monitoring role. In relation to corruption, the anti-corruption agency has made good progress, but it remains under threat and needs to be strengthened. Improving governance is a priority under the SDGs, Goal 16 (peace, justice and strong institutions) including targets to reduce corruption, develop transparent institutions and ensure public access to information.  

The progress made in these areas also needs to be replicated outside the forest sector. A major threat to Indonesia’s forests comes from conversion to other land-uses, in particular agricultural plantations. Effective land-use planning, including transparent and participatory decision-making, is needed if the sustainable management and efficient use of natural resources is to be achieved and deforestation slowed – as set out under SDG 12 (responsible consumption and production) and SDG 15 (life on land).

An important means to drive progress is to ensure close monitoring of progress as well as the evaluation of the measures being adopted. A framework for monitoring the impact of FLEGT licences, as well as the related measures being implemented under the VPA, is under development. This will need to link up to national efforts to monitor progress towards the SDGs – both to contribute towards the monitoring of these goals and to facilitate communication of the progress and lessons being learnt in the forest sector.

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