by Jennie S. Bev
Soeharto has died after more than 20 days of being hospitalized. While his family members, close friends and cronies are expressing their grief, more than one million people who have lost loved ones are waiting anxiously for the news that he –even after his death– will be held accountable for his alleged crimes against humanity: the genocide of at least 500,000 during the 1960s, 183,000 during the East Timor occupation, and 100,000 in West Papua.
This 86-year old former dictator of Indonesia, who had ruled for 32 years, was very impressive. Not one entity in the world has been successful in bringing him and his allies to justice for all the wrongdoings he allegedly committed against humanity. In Javanese tradition, a leader's charisma stays until, or even after, he has died. It is common knowledge that many Indonesian leaders, particularly politicians, who belong to this ethnicity practice kejawen, Javanese mysticism.
Mystical reasons aside, there were and are political and legal obstacles to bringing Soeharto to justice.
First, due to his influential power during the New Order, he was able to maintain ad nauseam charismatic influence after he had been removed from power. Current political leaders lack the political will to bring him to justice, reportedly due to his "generosity" and "ability to win friends" by sharing wealth and engaging in other political maneuvers. In short, if they had brought him down, they would have brought themselves down too.
Second, he escaped a series of Indonesian criminal lawsuits since 2000 for his alleged grand corruption acts, on the grounds of ill health. No domestic impartial investigative commission or truth commission to create an authoritative record of his responsibility for crimes against humanity has been formed either. And it is common knowledge the Indonesian judiciary requires a major overhaul due to its impotence and corrupt officials.
Now, with more impossibilities than possibilities to have Soeharto prosecuted for his alleged crimes against humanity, there is still a light at the end of the tunnel provided there is a moral force strong enough to pressure international law bodies to take part.
In general, there are two courts with jurisdiction to prosecute such cases: the International Criminal Court and the International Tribunal Court. The former is a permanent court, while the latter is an ad hoc. The International Criminal Court, which was established on July 1, 2002, following the signing of the Rome Statute by 102 countries, including Indonesia, is the first choice, provided that it would apply to Soeharto's case.
Unfortunately, it does not apply retroactively, which precludes it from prosecuting any crimes occurring prior to 2002, even though it is currently conducting investigations in Congo, Darfur, Sudan and Uganda. Indonesia intends to ratify the Rome Statute this year to serve as a deterrent for future crimes.
The International Tribunal Court, an ad hoc court formed under the supervision of the United Nations Security Council, might be the last hope. On Jan. 22, 2008, Michael P. Scharf, a member of the international team of experts that provided training to the judges of the Iraqi High Tribunal, and also a trainer of judges and prosecutors of the UN Cambodia Genocide Tribunal and a professor and director of Frederick K. Cox International Law Center at Case Western Reserve University, said, "Since Nuremberg, where Adolf Hitler's deputy, Martin Bormann, was prosecuted though he was already dead, international law has frowned on prosecutions in absentia.”
He added that the best solution would probably be to set up an international and domestic investigative commission or truth commission to create an authoritative detailed record of his crimes against humanity. Alternatively, after his demise, such records could be used against his chief lieutenants. As such, trials would reveal Soeharto's involvements in ordering or condoning their actions.
Ad hoc tribunals have been formed for the former Yugoslavia, Rwanda, Sierra Leone and Cambodia, which can be used as a model for Soeharto's case.
The road to hold Soeharto accountable for his alleged crimes against humanity is an uphill one. The light at the end of the tunnel, however, can be magnified by concerned citizens of the world who work together in pressuring the UN Security Council and Indonesia's current president and new president, whoever comes to power after the 2009 election, to listen to their consciences and set a precedent that such titanic atrocities will not happen again in Indonesia and the world.
The Jakarta Post, February 4, 2008