Indonesia's Police: The Problem of Deadly Force
Indonesia's Police: The Problem of Deadly Force
Briefing 122 / Asia

东帝汶:和解与难民回国

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概况

1999年东帝汶独立公投之后上千名前东帝汶难民逃离边境,这些难民问题目前尚未解决,这对于东帝汶的长期稳定依旧是个挑战。许多难民从未融入过所在的西帝汶社区,并且由于新东帝汶具有相对稳定的经济和政治环境,回到东帝汶的难民逐渐增多。难民回国应受到两国鼓励,因为这是促进边界两边社区和解的好机会。鼓励难民回国将暴露围绕1999年公决发生的暴力事件免受惩罚的成本,并突出东帝汶政府未能真正实施其两个真相委员会,即真相与和解委员会(CAVR)以及真相与友谊委员会提出的实际建议。东帝汶的领导者可能仍认定某种形式的大赦是解决难民问题的最佳方式,但国家已承受不起对解决方案进行广泛讨论的继续拖延了。

25万人在1999年公决后逃离东帝汶省,许多人在印尼安全部队和民兵的迫使下流离失所。上千名难民仍滞留在西帝汶,他们中的一些人由于经济原因而待在那里,而其他很多人则是迫于家庭成员和社区领导者的压力。后者依旧很难融入所在社区,拒绝离开老难民营,并对官方援助的终止感到沮丧。东帝汶的政治稳定和政府给与的获得土地的承诺使得回国的前景更具吸引力。但是一些因素,诸如错误的信息,对于离开印尼缺乏明确的法律依据,以及担心不能获得财产和基本的政治权利,都阻碍着他们回国。

几百名前民兵和前支持统一派领袖中的一小部分人已经将难民回国问题政治化。他们寻求不会因反对人权罪名而受到指控的保证,并且想获得由于印尼从东帝汶撤出而成为“政治受害者”的身份。虽然前民兵对于东帝汶来说不再具有任何安全威胁,因为他们没有武装,并且也私下承认独立已是不可逆转的事实。但是难民回国的前景可能会给东帝汶带来政治动荡,特别是在这些人不受到指控的情况下。即使东帝汶政治领袖一直强调“大门永远敞开”,警方和社区领导者也承认需要保证归国难民的安全,但有迹象表明要维护前统一派支持者的基本权利存在困难。

与印尼共同设立一个正式流程将是把难民回国的本质非政治化的最好方式,同时也可以减小前民兵和赞成自治的领导人仍然拥有的政治影响力。即使是在东帝汶两个真相委员会提出的实际建议一直未能实施的情况下,这也将有助于长期和解的努力。这将需要重新努力在社区层面取得和解,以及对难民回国进行有力监控,以保证卷入过低级别暴力或其逃亡可能招致怀疑的人可以重新融入社会。此外,也需要就如何处理起诉和未完成的调查出台明确的政策。

对于目前的司法与和解僵局,不应只由东帝汶政府一方承担责任。印尼一直通过拒绝与东帝汶法庭合作,来阻挠对于其军事人物及生活在西帝汶的前东帝汶民兵给予法律制裁。联合国在其仍具有影响力的时候也未能帮助确保司法公正。而承担这些代价的却是东帝汶。通过议会,东帝汶政府必须制定政策,研究如何在常设起诉书的基础上进行下一步。国际法庭仍然不可指望,脆弱的国内法庭则是进行未来起诉唯一的可能场所。任何重新推动大赦的努力将会推进得很快;主要政党正在讨论的一个方案就是“选择性大赦”。如果不是基于明确的法律标准,这可能是现有最坏的选择,因为它将不只去掉了对许多罪行给予法律制裁的可能性,也将使整个过程进一步政治化。如果决定不进行起诉,则仍存在导致对犯罪嫌疑人进行暴力报复的风险。更为肯定的是,将使建立法律规则及保障人权的努力更加复杂化。

对于司法与和解的政治共识一直难以达成,但却是迫切需要的。东帝汶议会和政府应采取以下步骤:

  1. 与印尼政府签订谅解备忘录,明确在东帝汶出生的人自愿归国的正式程序。
  2. 出台支持自愿归国的官方政策,包括向归国人员提供有限援助,在一定时期内给予食品援助和调解支持,并且加强福利监控以及详细制定他们回国后的权利。
  3. 在议会中对真相与和解委员会的报告和赔偿受害者的法律草案进行辩论,并且有计划的创立接替真相与和解委员会的机构,其任务应包括支持社区和解进程;
  4. 重新努力与印尼一起实施真相与友谊委员会的建议;
  5. 公开承诺在国内法院根据现有起诉书提起诉讼。

危机组织亚洲简报N°122, 2011年4月18日

I. Overview

The unresolved status of thousands of former refugees who fled across the border following a 1999 vote for independence remains a challenge to Timor-Leste’s long-term stability. Many were never well integrated into host communities and are being drawn back across the border in small but increasing numbers by relative economic and political stability in the new state. These returns should be encouraged by both countries as a good opportunity to promote reconciliation between the two communities divided by the border. Doing so will expose the costs of impunity for the violence that surrounded the 1999 referendum and highlight the failure to implement practical recommendations from its two truth commissions, the CAVR and the Commission on Truth and Friendship. Timor-Leste’s leadership may yet decide that some form of amnesty is the best way forward, but the country cannot afford to further delay broad discussion on solutions.

A quarter of a million people fled the province of East Timor after the 1999 referendum, many forcibly displaced by Indonesian security forces and militia. Some of the thousands remaining in West Timor are there for economic reasons; many others because of pressure from family members and community leaders. This latter group are still poorly integrated into their host communities, refuse to leave old refugee camps, and are frustrated by the end of official assistance. Political stability in Timor-Leste and the promise of access to land are making the prospect of return more attractive. But misinformation, an unclear legal basis for leaving Indonesia, and fear that their access to property and basic political rights will not be upheld are holding them back.

A small minority of several hundred former militia and former pro-integration leaders have politicised the question of return. They seek assurances that they will not be prosecuted for standing charges of crimes against humanity and want recognition as “political victims” of Indonesia’s withdrawal. The former militia no longer pose any security threat to Timor-Leste as they are unarmed and privately acknowledge independence as an irreversible truth. But the prospect of their return could be politically explosive for the country, particularly in the absence of prosecutions. Even though the Timorese political leadership has consistently underscored that the “door is always open” and police and community leaders acknowledge the need to ensure the security of returnees, there are signs that it will be difficult to uphold the basic rights of former integration supporters.

Working with Indonesia to set up a formal process would be the best way to de-politicise the nature of return and lessen what political leverage the former militia and pro-autonomy leaders still hold. It would support longer-term reconciliation efforts even as implementation of the practical recommendations from Timor-Leste’s two truth commissions have stalled. It will need to be accompanied by renewed efforts at community-level reconciliation and vigorous monitoring of returns, to ensure those involved in low-level violence or those whose absence may have engendered suspicion are able to reintegrate. It will also require a clear policy on how to handle prosecutions as well as incomplete investigations.

The Timorese government does not bear sole responsibility for the current impasse over justice and reconciliation. Indonesia has consistently blocked efforts to bring to justice its military figures and ex-Timorese militia living there by refusing to cooperate with Timorese courts. The UN failed to help ensure justice while it still had influence. It is Timor-Leste that bears the costs. With parliament, the government must work to develop policy on how to move forward with the standing indictments. An international tribunal remains a non-starter and weak domestic courts are the only possible venue for any future prosecutions. Any renewed efforts to push through an amnesty could move quite quickly; one option being discussed by the leading political parties is a “selective amnesty”. If not based on clear legal criteria, this could prove the worst option on the table as it would not only close off the possibility of justice for many crimes but also further politicise the process. There remains a risk that a decision not to prosecute could lead to violent retribution against suspects. More certain is that it will further complicate efforts to build the rule of law and guarantee rights for all.

Political consensus on justice and reconciliation has been elusive but is urgently needed. The parliament and government of Timor-Leste should take the following steps:

  • clarify with the Indonesian government through a memorandum of understanding the formal procedures for voluntary returns by those born in East Timor;
     
  • develop an official policy supporting voluntary returns, including limited assistance to returnees, through food assistance and mediation support during a provisional period as well as strengthened welfare monitoring and elaborating their rights upon return;
     
  • debate in parliament the CAVR report and draft laws on reparations for victims and the creation of a planned successor institution to the CAVR, whose mandate should include supporting community reconciliation processes;
     
  • renew efforts to implement with Indonesia the recommendations of the Commission for Truth and Friendship; and
     
  • publicly commit to the prosecution of existing indictments in the domestic courts.

Dili/Brussels, 18 April 2011

Op-Ed / Asia

Indonesia's Police: The Problem of Deadly Force

My four year-old daughter recently came home from her Jakarta kindergarten with a story about a visit to the school from the head of our local police station. 'If there is a robber and he's running away, the policeman will pull out his gun, fire in the air, and if he doesn't stop then he will shoot him in the leg', she recounted breathlessly.

I have spent 25 years working in and around conflict zones, including more than a decade in Indonesia. My reaction might not have been that of the average parent. 'That', I replied, 'is a violation of Perkap Number 8.' Needless to say, my reference to Police Regulation Number 8 of 2009 regarding Implementation of Human Rights Principles and Standards in the Discharge of Duties of the Indonesian National Police was lost on her. She thought the visit was great.

I had recalled Perkap 8 when re-reading the Hansard of the recent sparring between Australian Foreign Minister Senator Bob Carr and Victoria Greens Senator Richard Di Natale over the police shooting of protesters in Papua. But it is not just in Papua where questionable use of deadly force by the Indonesian National Police (INP) takes place. It happens across the country. And this was what Perkap 8 was put in place to prevent.

Article 47 of Perkap 8 says that 'the use of firearms shall be allowed only if strictly necessary to preserve human life' and 'firearms may only be used by officers: a. when facing extraordinary circumstances; b. for self defense against threat of death and/or serious injury; c. for the defense of others against threat of death and/or serious injury.' This is Indonesian law, taken from the UN Code of Conduct for Law Enforcement Officials, and this is what should be used to assess police actions, wherever in the country they occur.

The fatal shooting on 14 June 2012 of Mako Tabuni, deputy head of the National Committee of West Papua (KNPB), in Jayapura, capital of Papua province, made Senate Estimates in 2012. The shooting of three protesters in Sorong on 30 April 2013, West Papua province, was mentioned in the testy 5 June 2013 exchanges between Senators Carr and Di Natale. You can watch it above.

In the first incident, detectives shot a suspect in the leg as he was running away and then left him to die in a hospital allegedly without making any effort to treat his wounds. In the second, police claim they were threatened by armed KNPB activists. Without more information it is difficult to judge if their response was disproportionate. Police always say they are shooting in self-defense, but it has become such a common excuse that it has started to lose its plausibility.

Cases outside Papua do not garner much attention in Australia, but lethal shootings happen all the time. On 1 September 2011 seven villagers were killed during a rowdy protest against police brutality in the Central Sulawesi district of Buol, a place so obscure even most Indonesians cannot find it on a map.

On 7 March 2013, soldiers burned down a police station in Baturaja, South Sumatra, after their off-duty comrade, First Private Heru Oktavianus, was shot dead by a police officer while speeding away from a traffic violation.

On 8 May 2013 police in Java killed six suspected terrorists in a series of raids. The police usually claim the suspects were armed and resisted arrest. But it is not always true, and many could have almost certainly been captured alive.

Ordinary criminals are shot with distressing frequency, as my daughter's visitor suggests, without any outcry at home or abroad.

Perkap 8 was signed by the then police chief Sutanto, a real reformer. It has not gotten very far. One foreign police officer working on a bilateral community policing program in a large metropolitan command told me he had once seen a copy of the Perkap on the chief's desk but suspected it had been disseminated no further.

Even when progressive regulations or orders are issued and disseminated, they are not always followed. In October 2012, the police chief of Papua, Tito Karnavian, former head of the anti-terrorism unit Detachment 88 (Densus 88), announced that he had banned police from using live ammunition when handling demonstrations in the region. This was progress and it was implemented for some demos, but the deaths in the Sorong case suggest live ammunition was used.

As Article 46 of Perkap 8 says, 'all officers must be trained in the use of power, equipment and firearms that can be used in applying force' and 'must be trained in non-violent techniques and methods.' Training almost 400,000 officers across 33 provinces is a logistical challenge, though it might be a good idea to start with elite units such as Densus 88 or personnel in the Papua provinces.

The new national head of the INP, about to be appointed, might breathe new life into two reforms already in place: implementation of Perkap 8 and Chief Sutanto's other landmark regulation on community policing, Perkap 7. The INP is a very hierarchical organisation that does follow firm orders from above. While its size makes complex reform difficult, its hierarchical nature makes implementing existing regulations with firm orders easier.

The first duty of the incoming INP chief, who reports directly to the president, will be to secure the 2014 elections. Making sure those deployed to safeguard this 'festival of democracy' are properly trained and equipped to use non-lethal force will be an important first step. After a new head of state is elected, he or she should consider issuing a directive that would see Perkap 8 properly implemented. The use of less deadly force could even be politically popular in some parts.

Outside help may also be needed, and this is where Australia comes in. A few decades back, the Victorian state police had a problem of using too much deadly force and created Project Beacon to try to rectify it. They changed the way they thought about the problem, overhauled training, and gave officers on the beat new tools, like pepper spray. Foreign assistance along these lines could help the INP improve performance and increase accountability. Crisis Group has long argued that the INP needs better orders, training, and equipment for the use of non-deadly force.

If the INP is to be more the service it aspires to be rather than the force it is, it needs to shed its military mindset, hold serious post-operation reviews after each fatal incident, and decrease reliance on shooting first and asking questions later, regardless of whether officers are following locally accepted standard procedure. When the time comes and the INP is ready to carry forward the reform of Perkap 8, Australia should be there to help.

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