by 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 also 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 of the accused. Given
Nairn’s spoken and written comments, there is a prima facie case
that he has damaged the “reputation and honor” 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.

Professor Damien Kingsbury is author of Power Politics and the
Indonesian Military and is in the School of International and
Political Studies at Deakin University, Melbourne.