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Justice After Mass Violence: Indonesia and India Compared

Jemma Purdey, Ph.D. - 8/9/2006

I was recently struck by the similarities in the headlines featured in two newspapers from different cities and different countries. In The Jakarta Post the headline read 'Life goes on for riot victims - with painful memories'; and in The Times of India, 'Life goes on - but the grief remains'. Events of mass violence and rioting between and against different communities within these two countries in recent years have similarly left behind victims seeking justice for the crimes against them. The responses and capabilities of the respective judicial and political systems in India and Indonesia are however, producing different outcomes.

The Indonesian case referred to is the riots in Jakarta and other major cities, which took place in mid-May 1998. Over one thousand people died and over one hundred women were raped and gang-raped. Not a single person has been prosecuted for crimes carried out during the violence and despite an official report calling for further investigation of elite military and political figures, no one has been held accountable. More than six years later, there has been no resolution for the victims of this violence.

The Times is remembering the first anniversary of two bomb-blasts in downtown Mumbai and the centre of the tourist precinct, one at The Gateway of India itself. 52 people died. The bombs had been placed in the boots of taxis hired by 'terrorists' with sympathies with the Lashkar-e-Toiba (LeT), an international terrorist organization. It is believed that the bombs were an effort to avenge the killings of over one thousand Muslims during the riots in Gujarat in March 2002.

Indonesia and India are both faced with regular threats to public safety by bomb blasts. See the Bali bombing in October 2002 and the JM Marriot in 2003. These bombings in Mumbai were part of a series of explosions over the previous six months including one that went off on a city bus on 28 July last year. In India and Indonesia the spectre of 'terrorism' at home and the complicity of elite political and security figures or state-sponsored violence, is a daily reality.

The difference in approaches by their respective legal systems to these respective cases of mass violence, is however, marked. As mentioned, in the case of the May 1998 riots, which preceded the resignation of President Suharto and the end of his 30-year autocratic reign, the legal instruments available to victims and their supporters in Indonesia have produced nought. The initial investigation into the riots carried out by the Joint Fact Finding Team for May 1998, was led by the respected former head of the National Commission for Human Rights, Marzuki Darusman and produced an important and brave report pointing to elite manipulation and orchestration of the violence. Since the report was issued in late 1998, subsequent efforts by the Komnas HAM to revive the investigation process and to petition the Attorney General's Office to establish an Ad Hoc Human Right Court to try cases, have been mired in red tape and lack of political will. In the Jakarta Post article Hasanuddin, who was inside a burning shopping mall during the rioting and was forced to jump several floor to save himself, discusses the trauma he continues to live with. 'I heard a cry for help. It was a woman's voice, but I couldn't do anything. I shut my eyes and jumped.' Six years on he recounts, 'It feels as if I was still there, trapped inside with the woman's voice calling me'. Whilst victims' support networks and NGOs provide assistance to Hasanuddin and others the government and the justice system have provided no compensation, and most gravely, no opportunity to face the perpetrators and to seek justice.

In India the recent situation is vastly different. Almost exactly one year on from the Mumbai blasts the trial of six accused in the case is set to commence with the police boasting that they have 'a watertight case'. The fact that the accused in this case are all Muslim may be seen by some from this minority community to account for the speed of bringing this case to trial. However as a counterpoint, simultaneously in a nearby court in Mumbai a trial will be underway of 19 Hindus accused of killing 14 people (mostly Muslims and their Hindu employees) trapped inside the Best Bakery in Vadodara, Gujarat on 1 March 2002. This case has immense implications in India for human rights and justice seeking for communal violence and violence with links to the state. In an extraordinary move following petitions from NGOs representing the key witness in the Best Bakery trial conducted in a Gujarat court, which acquitted all the accused, the Supreme Court of India agree to a re-trial of the case in a court outside of Gujarat on the grounds that the witness had been intimidated and threatened into suppressing her testimony. The Supreme Court maintained that it was necessary for the case to be heard in a neutral setting and the trial was moved to Maharashtra state. Lack of initial clarity about which state would appoint public prosecutors for the case and difficulties in re-arresting the accused have presented delays to the trial, however after further judgements from the Supreme Court it appointed Mumbai-based prosecutors and judge.

The Supreme Court decision to allow a re-trial of this volatile case and to shift it out of Gujarat is a bold move in the face of great opposition and resistance from the BJP Chief Minister of Gujarat, Narendra Modi. CM at the time of the riots, Modi is widely believed to have advocated the violence against Muslims which took place following the murder of a train carriage packed with Hindus returning from Ayodhya in late February 2002. Likewise Atal Bihari Vajpayee, the BJP Prime Minister of India home to 120 million Muslims remarked on 12 April 2002, 'Wherever Muslims live, they don't like to live in co-existence with others, they don't like to mingle with others; and instead of propagating their ideas in a peaceful manner, they want to spread their faith by resorting to terror and threats. The world has become alert to this danger'. Biharai Vajpayee clearly placed blame for the murders of the one thousand or so Muslims with the victims themselves, 'What happened in Gujarat? If a conspiracy had not been hatched to burn alive the innocent passengers of the Sabarmati Express, then the subsequent tragedy in Gujarat could have been averted. But this did not happen. People were torched alive. Who are those culprits?'

The decision by the Supreme Court to re-try the Best Bakery case was already in motion before the results of the April-May 2004 election were known, however undoubtedly the passage of bringing them to reality has been made easier by the absence of the BJP in government. Despite Modi's dogged and attempts or bullying, to stop this case and subsequent cases from being shifted out of Gujarat he has failed without serious support in Delhi. The decision to move the trial out of Gujarat is a clear indictment by the Supreme Court of the lack of transparency and opportunity for a fair trial for cases related to the 2002 communal violence in which the police and politicians have been heavily implicated. Once again in India the judicial system is demonstrating its power and will to confront political corruption and intimidation. As a consequence of the precedent set by the decision over the Best Bakery trial already another, this time the case of gang-rape Muslim women during the riots, was stayed and has also been moved to Mumbai. Further, the Supreme Court has asked the Gujarat advocate-general to consider challenging the acquittal of the accused in about 200 other riot cases. Potentially a further 2,100 cases earlier closed by Gujarat police could be re-opened.

As human rights activists and lawyers will quickly inform you, however, this achievement has come after a long battle against the political forces in Gujarat. In relation to other incidents of rioting in India's recent past, the Supreme Court's decision is a much-awaited change to a situation often prone to sloppy or corrupt police investigations and trials. With Gujarat the Supreme Court have decided that in cases where the state is complicit in the crimes committed it cannot be given the responsibility to record victims reports, investigate, then bring to a court of law in a unbiased and fair manner. The victim cannot be assured of justice. Removing these trials from Gujarat is an attempt to allow for neutrality in order that the judicial processes may proceed without these impediments.

The contrast with this recent situation in India with those seeking justice for crimes such as this and other human rights abuses in Indonesia, is stark. Cases including the May 1998 riots in Jakarta, the killings of student protesters in November 1998 and again one year later by security forces, the post-referendum violence in East Timor and the killings of Muslim protesters in Tanjung Priok are the most pressing issues before the National Commission for Human Rights and the Attorney General office presently. However, there is a political hurdle, absent in the Indian case, which has prevented substantial progress towards justice for the victims.

Legislation signed by President Abdurrahman Wahid on 23 November 2000 about the Human Rights Court (Law No 26 of 2000) includes provision for ad hoc courts (Article 43) to hear cases which took place before the legislation was introduced. Established in August 2001, the Human Rights Court and its ad hoc provision was a critical moment in Indonesian human rights law. For victims of human rights abuses carried out during the New Order period and before November 2000, the ad hoc courts represented great hope. Internationally also, the court was seen as crucial in order to enable Indonesia to carry out its part of the deal to put on trial those responsible for the mass violence which accompanied the East Timor referendum in September 1999. Together with the East Timor case, among the first groups to call for an ad hoc human rights court were families and victims of the Tanjung Priok incident of 12 September 1984. Claims for a trail were also made by the families of the victims of the killings at Trisakti on 12 May 1998 and of the incidents at Semanggi in 1999 and 2000, during which students were shot and killed when they were fired on by the military. Recently, Komnas HAM has also campaigned for a trial for the May 1998 violence. Of these cases, so far the East Timor and Tanjung Priok incidents have been successful in being granted ad hoc hearings with the East Timor trials concluding in early 2003 and the Tanjung Priok trials commencing in October the same year. Yet, as was evidenced in the East Timor trials there is every indication that justice for victims will not be found in what remains a highly corrupt and dubious legal system.

The process for establishing an ad hoc court, as subscribed in Article 43 of Law No 26 of 2000 is the primary reason for the difficulties seen during these trials, and which saw only the second such court opened in September 2003, over three years after the legislation was introduced. Article 43 states that the request for an ad hoc court must be presented to the President by a special committee from the House of Representatives (DPR). Thus, the DPR is the key actor in this process. That is, politicians rather than legal experts or Komnas HAM. The procedure for making a petition to the DPR for an ad hoc court has so far been initiated in each case by victims and their families themselves. Komnas HAM then forms a Commission of Investigation into Human Rights Violations (KPP HAM), which submits its findings to the DPR special committee for their consideration. In the absence of international pressure, as in the case of East Timor or Presidential pressure, as in the case of Tanjung Priok from Abdurrahman Wahid, the outcomes have been predictable. Despite petitioning by victims and the National Commission for Human Rights, no other ad hoc courts have since been established.