On August 15, 2005, the 29-year conflict between Indonesia and the Free Aceh Movement (GAM) ended with the conclusion of a final peace agreement. Most of the details of the agreement pertain to provincial autonomy, the implementation of a cease-fire and European Union monitoring, but it also contains a number of transitional justice provisions.
At present, the transitional justice process in Aceh can be predicted only in very general terms, because many of the institutions contemplated by the memorandum of understanding must be created through subsequent legislation. The formation, composition and jurisdiction of each of these bodies will naturally be a subject of political debate. Several clear threads, however, are apparent from the text of the treaty.
The first is a general amnesty for all Indonesian and Acehnese military personnel involved in the conflict. This is consistent with the agreement's overall "no victor, no vanquished" policy; Indonesia has historically been unwilling to hold its own troops to account for war crimes committed in domestic conflicts, so parity for the GAM requires equivalent immunity for its personnel. To some extent, however, the Indonesian government has committed itself to make amends for the damage done in the Aceh conflict by pledging funds to rebuild damaged property and establishing a joint claims settlement commission. In addition, GAM combatants and "civilians who have suffered a demonstrable loss" will be entitled to restoration of civil rights and, where possible, allocation of farmland or employment opportunities.
The amnesty is also compensated for by a forward-looking provision for rule of law. Under Article 1.4.5 of the memorandum of understanding, Indonesian soldiers will henceforward be subject to prosecution in the local courts for civil crimes committed in Aceh. In other words, although mutual immunity for past actions was considered necessary to implementing the agreement, the Indonesian military will not enjoy the same impunity in the future.
Finally, the peace agreement contemplates the establishment of two institutions: a human rights court and a truth and reconciliation commission. The jurisdiction of these tribunals is left unstated, although the latter is charged with the task of "formulating and determining reconciliation measures." It is probable that the Acehnese truth commission will not have the same quasi-judicial functions as its South African model; given that general amnesty is provided for in the treaty, the commission will not be the arbiter of immunity for its witnesses. More likely, the truth commission will help assemble a historical record and assist the work of the claims commission by identifying the victims of the conflict.
The next few months, assuming that the peace holds, will determine how these institutions are created and how they will function in practice. Much must await the demobilization of GAM militants and the formation of an Acehnese provisional government to coordinate the transitional justice process. The commitments thus far made, however, seem to represent a reasoned political choice and are far more than could have been expected from an Indonesian government even a year ago.
The Council on Foreign Relations put a good page about the peace agreement, with background information, onto their website on August 30. It also includes a link to a good interview with the Crisis Group's Sidney Jones. She says, “There’s no question that there’s never been a better chance for peace in Aceh and for resolving their 30-year-old conflict.”
In general, what you say here, Jonathan, about this peace agreement and its marriage between offering a blanket amnesty for past misdeeds and stipulating that from here on out no-one will be above the law helpfully underlines the idea that transitional justice measures should always clearly both embody and mark the idea of a transition to a better (= more peaceful and hopefully also more democratic) order. If other means can also be used to mark this transition, so much the better.
The philosopher Jean Bethke Elshtain has commented on South Africa's experience with its TRC that, "Ironically, the moral rehabilitation of the political world requires, at the outset, that certain features of just punishment be evacuated temporarily in the interest of a restorative project… [M]andatory retribution can well undermine the very democratic processes on which the rule of law is based." She was right! (Jean Bethke Elshtain, "Politics and forgiveness", in Nigel Biggar, ed., Burying the past; Making peace and doing justice after civil conflict (Washington DC: Georgetown University Press, 2001), pp. 53,54.)
Actually, I should also note that's a great and under-utilized book. Should we do regular book reviews here, as well? Why not?
Posted by: Helena Cobban at September 15, 2005 12:57 PMThe philosopher Jean Bethke Elshtain has commented on South Africa's experience with its TRC that, "Ironically, the moral rehabilitation of the political world requires, at the outset, that certain features of just punishment be evacuated temporarily in the interest of a restorative project
Then, as I've argued before, there may be some inherent tension between the "transition" and the "justice" aspect of TJ - or, more accurately, some tension between justice for the individual victims and justice for society as a whole. I suppose the amount of tradeoff between the two should be the subject of democratic choice by the affected parties.
Book reviews sound like a good idea, especially if something new and important comes out.
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