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By Professor Damien Kingsbury
American journalist Allan Nairn's game of cat and mouse with the Indonesian military is a brave attempt to show that it continues to represent the greatest challenge to Indonesia's process of reform and democratisation. It is also one that could well see him spending time - potentially up to six years - in an Indonesian prison.
Nairn recently detailed how the Indonesian military's special forces, Kopassus, continued to be involved in illegal activities, including murdering civilians. His report comes at a time when the US is considering renewing direct support for Kopassus, after having banned working with it more than 10 years ago.
US President Barak Obama says that the US military should resume full military to military co-operation with the Indonesian armed forces, the TNI, as a result of their reform. Military contact was broken off in 1996, following the 1991 Dili Massacre in which 300 or more people were murdered by the Indonesian military. Nairn was in Dili during the massacre and was himself seriously beaten by TNI members.
Under US law passed in response to that event, the US military is banned from working with elements of the TNI that have perpetrated human rights abuses or war crimes. Nairn detailed how two Kopassus members were arrested after the murder of two members of Partai Aceh (Aceh Party) late last year. Partai Aceh is largely comprised of former combatants of the Free Aceh Movement, who changed their status to a legal political party under the terms of the 2005 Aceh peace agreement.
Nairn also claimed that others in Aceh had been murdered by Kopassus members. Yet the TNI has refuted Nairn's claims and says it wants to arrest him on charges of criminal defamation. Nairn says he welcomes the charge, as it will give him an opportunity to call witnesses, including TNI generals and CIA and US army officers, and detail his claims in an open court.
Indonesia's defamation law remains a criminal, not a civil, offence, established by the Dutch in 1918 to suppress dissent against its colonial rule. Following the departure of the Dutch, the law was retained to suppress dissent against the government.
There is no doubt that despite Indonesia's more general democratisation in the past 11 years, the TNI has been slow to reform. It has effectively refused to let go of its private business interests and has continued criminal activities such as smuggling and extortion among others.
The TNI also continues to be an internally focused military organisation, involved in what amounts to internal policing, rather than being an externally focused defence force. There continue to be regular reports from West Papua of human rights abuses, including torture and disappearances, as well as those from Aceh.
Members of the TNI, including Kopassus, who have been found guilty of serious crimes, such as the kidnapping, torture and murder of pro-democracy activists in 1998, also continue in the service. No TNI members have been held accountable for the murder of about 1500 people after the East Timorese voted for independence in 1999; many have since been promoted.
Nairn is on strong grounds in making his claims about the TNI generally and Kopassus in particular. The problem is, the Indonesian legal system is not likely to give him the opportunity to establish his case.
In part, if Nairn is arrested, he will likely spend months in jail before going to court. Once he gets to court, few if any of the witnesses he would like to call will attend. If any TNI officers do attend, they can be all but guaranteed not to confirm Nairn's allegations, regardless of their veracity. In that Nairn has more confidential sources, despite TNI demands, he is highly unlikely to expose them to the dangers that being public would entail.
But more importantly, Indonesia's judiciary remains vulnerable to external pressure, no more so than from the TNI. Under Indonesia's legal system, once one is charged, the burden of proving innocence effectively falls on the accused. Given Nairn's spoken and written comments, there is a prima facie case that he has damaged the "reputation and honour" of the TNI and will be found guilty. He faces up to four years for defamation and a potential further two years for doing so in the case of public officials in the course of their duty.
Unlike in many other countries, truth is not a defence in defamation cases, although it can be a mitigating factor. Public interest can be used as a defence under Indonesia's defamation law, but this is conditioned by it being done in a "proper way". Should Nairn go to court, the prosecution will argue that his claims damaged the "reputation and honour" of the TNI in pursuing its duty, that as the defender of the state this is against public interest, and that it was not done in a "proper way".
Nairn may also likely to be charged with visa violation. Even if Nairn has a journalist's visa, there is a precedent for punishing troublesome journalists. In 2003, US journalist William Nessen was arrested and held for his work in Aceh, despite having a journalist's visa.
Allan Nairn clearly wants to highlight the longstanding and continuing problems associated with Indonesia's military and in particular its notorious special forces. He is putting himself on the line to do so.
The question will be whether he pays the price for doing so, and whether US strategic interests in South-East Asia override the inconvenient fact that Allan Nairn's claims are correct.