LawPhilosophyArt: August 2012

**At long last, my final paper that got me on to the Denver Journal of International Law and Policy. I sincerely hope this doesn't count as "publication." But I took the risk so all y'all can finally understand a bit about why I did what I did this summer.**

Introduction

While September 11, 2001 is a day mourned as a tragedy for not only the U.S. but much of the world, on a relatively tiny island thousands of miles away, it marked the beginning of peace.[1] In the Poso region of Central Sulawesi, Indonesia, a four-year violent conflict was brought to an end.[2] Environmental rights were a primary factor of the conflict, however, division along religious lines was exacerbated by outside influences and became the “face” of it.[3]

Today, though the situation has changed, perhaps the issue most likely to lead to future conflict continues to be environmental rights.[4] Currently, many Indonesian citizens have little access to legal redress for issues related to these rights.[5] Analysts of Islamic fundamentalist infiltration consistently recommend that an accountable, credible legal system and better access to justice remain absolutely essential to preventing the kind of vigilantism that radical groups can manipulate.[6]

This article will advocate for an increased focus on access to justice and capacity building, particularly for women, in areas vulnerable to violent conflict. Part I will provide background on Poso’s history. Part II will describe the fundamentals of Indonesian land and natural resource rights. Part III will explain briefly Indonesia’s formal and traditional legal systems and access to justice on both levels. Part IV will make recommendations.

1) Poso history

a) Religious relationships

Located between Muslim-majority South Sulawesi and Christian-majority North Sulawesi, Central Sulawesi seems like a logical place for religious conflict.[7] Yet, indigenous people had lived in harmony for generations prior to colonization.[8] However, it was under President Suharto’s regime, beginning in the 1960s, that tensions really started to rise.[9] Under Suharto, Islam was favored as the national religion.[10] By the 1980s and early 1990s, there were increasing religious rivalries for government favor and competition for jobs.[11]

In Central Sulawesi, many Christian groups lost some of their indigenous political control.[12] Local authority was removed from customary councils of elders and transferred to a national bureaucracy.[13] Muslims were installed in high-ranking military posts, and Christians found it increasingly difficult to get their local leaders elected.[14] Young Christian students began to feel that they did not have equal access to government jobs and other economic opportunities, even if they were equally well educated and qualified.[15]

b) Transmigration & lack of legal redress

Suharto’s initiatives included a government-supported transmigration program to move people from the overcrowded central islands to the less populated regions.[16] Central Sulawesi was chosen as one of ten sites for migration from crowded cities.[17] New roads and highways attracted many Muslim traders to the Christian-majority highlands to cash-crop cacao and to open stores to serve the newly-wealthy cash-croppers.[18] Highland Christians also moved to the lowland Muslim-majority cities seeking higher education and jobs.[19] As the government continued to fail in providing equal access to economic opportunities, community groups became more entrenched in local, religiously based alliances to solve their daily problems.[20] Suharto used the military to preserve stability for most citizens and foreign investors.[21] Meanwhile, citizens did not have local means to negotiate and solve underlying problems, and access to national justice systems was very limited, so violence became an effective solution to social problems.^[22]

c) 1998-2002

The Asian financial crisis in 1997 ripened the scene for violence.[23] It worsened living conditions for most citizens and created desperation for political change.[24] Citizen protests and military responses became increasingly violent.[25] When Suharto resigned in 1998, it left a political vacuum that inflamed local politics throughout the country.[26]

The initial phases of the Poso conflict surrounded mayoral elections as Muslims and Christians each battled to get their favored candidate in position.[27] Street fights ensued, inflammatory graffiti littered the streets, and hundreds homes were burned.[28] The conflict continued in phases largely determined by which side was seeking reprisal.[29] After a group of alleged Christian ringleaders was sentenced to death in 2001, attacks on Muslims increased.[30] In stepped Laskar Jihad, a newly formed Muslim militia.[31] They were able to gain influence in the region because local Muslim communities has lost all faith in the security forces.[32] Their arrival in 2001 added several hundred experienced fighters to the Muslim ranks, and coincided with a spike in violence. [33] Jamaah Islamiyah (JI), Southeast Asia’s largest terrorist organization, had also infiltrated the region.[34]

d) Sept 11, 2001 –the beginning of one war, the end of another

Laskar Jihad's leader had fought alongside bin Laden in Afghanistan.[35] The Indonesian government long denied any link between Laskar Jihad and al Qaeda, but in December 2001 the head of Indonesian intelligence finally agreed that the two were linked.[36] JI also helped two of the September 11, 2001 hijackers and has confessed to plotting and carrying out attacks against Western targets, including the 2002 Bali bombings.[37]

In the aftermath of the September 11^th attacks, reports of the violence in Poso caught international attention.[38] The U.S. put pressure on the Indonesian government to put a stop to the conflict and eradicate the Islamic fundamentalist groups.[39] On December 20, 2001, Muslim and Christian leaders, accompanied by 4,000 military and police, signed the Malino Agreement.[40] It took another year for the fighting to officially stop, in fact sporadic attacks continue to this day.[41]

The four years of fighting in Poso left between 1,000-2,500 dead, thousands more injured, hundreds of churches and mosques burned, and over 100,000 Internally Displaced People (IDPs).[42] Part of the reconciliation process includes resettling these IDPs who may claim land now occupied by other mobile citizens.[43] Part of the Malino Agreement included talks of returning property to ‘pre-conflict’ status.[44]

2) Land & Natural Resource Rights in Indonesia

a) Background

Land disputes in Indonesia are consistently reported as the most frequent after general criminal disputes, the most difficult to resolve, and the most likely to trigger violence.[45] Ethnic/religious conflicts are reportedly low.[46] In Sulawesi, a 2006 World Bank survey found that 17.5% of reported cases were over land disputes, (Sulawesi was the only region who’s land disputes were higher than its criminal disputes), while only 3.4% were ethnic/religious conflicts.[47]

The basis of modern Indonesian land law is Law Number 5 of 1960, also referred to as UUPA (Basic Agrarian Law Act).[48] It was created under President Soekarno and the Old Order, the first regime after independence.[49] The primary focus at the time was to protect Indonesian natural resources and local property from foreign influence so that Indonesian economic development could be fully cultivated and controlled from within.[50] This was due to awareness that the poverty of the majority of Indonesian people had its roots in an access to natural resources.[51]

When Suharto became president in 1967 he upended those policies.[52] His natural resource management policies, under the New Order, are widely acknowledged as having planted the seeds of conflict in many areas of the country.[53] The New Order opened Indonesia to foreign capital investment and made foreign debts the prime source of development funding.[54] Development practices bluntly claimed poor people’s proprietary rights and access to natural resources.[55] Most significantly, in the 1980s the government classified over 75% of Indonesia’s total land area as State Forest.[56] Violence was used as the primary tool to impede those who demanded their proprietary rights.[57] During this time there were many “forced evictions” that disproportionately affected women.[58] The legacies of the New Order laws and policies encouraged unbridled commercial extraction of Indonesia’s natural resources.[59]

The 1997 economic crisis forced President Suharto to step down amidst the international community’s growing awareness of human rights violations that were committed to defend the interests of private companies.[60] The Reform Era, which followed, is a clash between the ideologies of the two previous regimes.[61] On one hand, the government issued a new law for Agrarian Reform (although dismissing it in practice).[62] On the other hand, the regimes in this era continued the New Order’s practice of accommodating foreign investors and debts, particularly by allowing the privatization of natural resources.[63]

b) The Indonesian Constitution

Article 33 of the Indonesian Constitution reflects the focus of the Old Order. It provides that “the land, water and their natural riches are controlled by the state and shall be used to the greatest benefit of the people.”[64] However, this provision has served as legal justification for sweeping state control.[65]

Article 18 manifests the other side of a longstanding inherent tension in the Indonesian Constitution between state control and community-based rights.[66] In August 2000, it was amended to include “the state shall acknowledge and respect traditional societies along with their customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law.”[67]

Since Indonesia’s independence in 1945, this tension has been resolved almost always in favor of Article 33 and unbridled state control.[68] However, properly interpreted, both articles indicate that the state holds the land in an administrative capacity for the benefit of the people.[69]

c) Present day context

Although the second half of the 20^th century had seen many of Indonesia’s people lose rights to their land, the government has concurrently taken great strides to address environmental legal reform.[70] It has introduced laws that specifically target strengthening local environmental management institutions.[71] The Indonesian Center for Environmental Law conducts training courses for members of the Indonesian judiciary in environmental law. The head of Indonesia’s Supreme Court has indicated to the High Court that he recommends only judges with this ICEL training be appointed to hear environmental cases.[72] Indonesia has also greatly diversified is environmental dispute resolution mechanisms. [73] What remains is for the average Indonesian citizen to be able to make use of these reforms.

3) Access to Justice

a) National, formal legal system

Local awareness of the importance of justice and legal empowerment is getting stronger, yet access to the formal legal system for local community members remains rare.[74] In a 2001 survey, 56% of Indonesians were unable to give a single example of a right to which they were legally entitled; the percentage jumped to 66% for women, and 97% for those with no formal education.[75]

Poor people’s access to the formal legal system is limited by inaccessible language, discrimination, corruption, and lengthy processes. [76] Indigenous people are consistently marginalized, uninformed, and even sometimes considered “illegal” squatters on land they have settled for generations.[77]

b) Local, traditional justice system

Non-state justice is the primary mode of dispute resolution in Indonesia.[78] Indonesians prefer to settle things locally.[79] Local customary law tribunals are well-established, but traditional community and religious leaders also practice arbitration and mediation.[80] Research suggests that for small intra-communal disputes, non-state justice operates rapidly and effectively.[81] High satisfaction rates reflect this success.[82]

But one of the main problems with the traditional, local justice system is that results are arbitrarily based on the decisions of “elites” and with the goal of ensuring village harmony.[83] Harmony is often equivalent to maintaining the status quo or social norms.[84] The results therefore are not always “just” for individuals, especially minorities or those underrepresented.[85] One of these categories is, of course, women.[86] Another problem is that local justice systems are not well connected with the formal legal system and also lack the resources to handle complex cases, or the “jurisdiction” over outside parties.[87] Many land disputes fall into these categories.[88]

4) Recommendations

a) Increasing access to justice –grassroots level

Access to justice will not only provide citizens with an alternative to violence to air their grievances, but will also allow them to advocate for changes in policy at the national level to reflect their interests.[89] Grassroots programs working with communities can, and have, successfully generate demand for institutional change at the national level.[90] The participation and the inclusion of women’s organizations in the formal political peace process is crucial as they are generally the ones who work with, help, and understand people at the grassroots level.[91]

i) Women’s empowerment

The gender division of labor in Indonesia has changed - women are increasingly generating income for the family due to poverty and a lack of men’s mobility.[92] The killings of a large number of men in public spaces, including their farms, during and after the conflict has limited men’s mobility to carry out productive economic activities outside the home.[93] Women are also powerful actors during conflict.[94] They take on a variety of different roles to ensure their family’s survival.[95] They also take on roles as community organizers, distributing clothes, medical care, and other basic needs to victims.[96] In Central Sulawesi, they are particularly active in IDP camps.[97] In the Poso conflict, this meant that women were able to point out that the conflict was not actually based on religion. Women from Muslim and Christian communities helped each other and disguised each other to escape raids during the conflict.[98] Such a connection with the realities of the conflict make women vital in the peace building process.

For many people, women are considered better peace builders because they are seen as less threatening and more open to informal dialogue between Muslim and Christian communities through their daily activities in the marketplace and the community.[99] All of these activities strengthen their understanding of community members needs and realities, as well as establish their connections and influence within the community.[100] Although women’s political participation is still limited, it seems to be increasing, especially in the village political arena.[101] Some women have become heads of the villages, neighborhoods and members of village councils, in part as a result of their peace activism and humanitarian work.[102] Yet, up until this point, these roles are mostly ‘invisible’ as women have generally been overlooked and marginalized in the context of the formal peace-building processes.[103]

b) Capacity building

Capacity building should continue at both the national and local levels, but with an increased focus on integrating women and getting them into decision-making positions.[104] The emergence of women in conflict and peace-related issues is a new phenomenon in Poso and surrounding areas.[105] Generally these women have limited education, knowledge, organizational experience and leadership skills.[106] Although many of the female peace activists in Poso were university student activists or were actively engaged in the NGO activities before the conflict, the older generation is less educated.[107] Some have not completed high school and others have only finished elementary school.[108] A lack of education prevents women’s organizations from understanding their rights or how to enforce them, from engaging on constructive development, and from accessing established networks.[109]

Women’s groups have identified a need for managerial and leadership skills, group and community organization skills, fundraising skills, networking skills, communication, information and dissemination skills including policy advocacy, campaigning, lobbying, public speaking and presentation, monitoring and evaluation skills, negotiation, mediation and conflict resolution, and women’s political participation.[110]

Since women are generally not familiar with formal debate, dialogue and discussion due to their marginal position in the decision-making and formal peace processes, an affirmative action policy would help efforts in strengthening women’s capacity.[111] This includes facilitating women’s participation in seminars, workshops and conferences at the local, national, and international level. Graduate school scholarship assistance would be beneficial, as well as long-term, sustainable technical and financial support for women’s organizations. [112]

c) An expanding legal field –barefoot lawyering

There are many Indonesian legal aid groups that have set up outposts, or posko[113], around the country to provide “barefoot lawyering” –educating rural citizens on the basics of the Indonesian legal system, connecting them to resources, and also representing individuals or communities in bringing suit.[114] But studies have shown that backing from organizations, individuals, or the general international community often influence cases’ success.[115] A place exists, and continues to grow, for lawyers from the international community to go do some non-traditional lawyering. Sharing of skills and resources, educational tools, “witnessing” or accompanying cases, and advocacy –representing individuals or communities at higher levels or connecting them with available resources –are strong “soft skills” for many lawyers and are in high demand by marginalized populations in Indonesia and other developing countries.

Conclusion

Although Poso today is relatively peaceful, developing means for community members to address their environmental and other legal concerns is critical in maintaining peace in the future. Low economic growth and unemployment can make post-conflict areas more prone to slipping back into conflict.[116] Particularly for young men, helping them attain a stake in the local economy is a critical factor for peace as they are the most susceptible part of society to the frustration and resentment that can lead to violence.[117] JI and other fundamentalists groups continue to recruit in Central Sulawesi, sending new students to South Asia and elsewhere for training. A steady stream of Indonesians travel to India, Pakistan, and Bangladesh every year for training, and Indonesian jihadists have well-established contacts there.[118]

Economic growth in Indonesia is strongly connected to access to natural resources.[119] It is critically important that local communities have access to the benefits brought by foreign investors in these natural resources, and that their concerns are part of the decision making process. This bridge will be forged largely by a well-integrated legal system that even the most marginalized can access. Peace in Poso, and in the rest of the world depends on it.

[1] See, e.g., Center for Humanitarian Dialogue, Conflict Management Strategies in Indonesia: Learning from the Poso Experience (2009) [hereinafter HD Centre].

[2] Id.

[3] See, e.g.,Which Way to the War (Spotted Frog Productions 2009).

[4] See, e.g., Gogali, Lian, The Power to Rebuild. Inside Indonesia 105 (2011).

[5] See, e.g., The World Bank, A Framework for Strengthening Access to Justice in Indonesia (2007)

[6] See, e.g., Int’l Crisis Group, ICG Asia Report No. 74, Indonesia Backgrounder: Jihad in Central Sulawesi (2004); Id. at 43.

[7] Lorraine V. Aragon, Can Central Sulawesi Christians and Muslims Get Along? An Analysis of Indonesian Regional Conflict, 63 Antropologi Indonesia 53, 54 (2000).

[8] Id.

[9] Id. at 56-58.

[10] Id. at 56.

[11] Id. at 54.

[12] Id. at 57.

[13] Lorraine V. Aragon, Waiting for Peace in Poso, 70 Inside Indonesia (2002).

[14] Id.

[15] Aragon, supra note 7, at 58.

[16] Aragon, supra note 13.

[17] Id.

[18] Aragon, supra note 7, at 57.

[19] Id.

[20] Id.

[21] Legal Empowerment of the Poor: Lessons Learned from Indonesia, 22, 27 (Patra M. Zen & Restu Mahyuni, eds., Matt Zurtrassen et al. trans., 2007) [hereinafter Legal Empowerment].

[22] Aragon, supra note 7, at 57-58.

[23] Id. at 60.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] See generally Human Rights Watch, Vol. 14, No. 9 (C), Breakdown: Four Years of Communal Violence in Central Sulawesi (2002) [hereinafter HRW] (detailing stages of the conflict).

[30] Which Way to the War, supra note 3.

[31] HRW, supra note 29, at 10, 23.

[32] Id. at 2, 11.

[33] Id. at 10-12.

[34] Sidney Jones, Briefing for the New President: The Terrorist Threat in Indonesia and Southeast Asia, 618 Annals Am. Acad. Pol. & Soc. Sci. 69 (2008).

[35] HRW, supra note 29, at 12-13.

[36] Id. at 10-13; Bruce Vaughn et al., Cong. Research Serv., RL34194, Terrorism in Southeast Asia 5-6 (2009).

[37] Vaughn, supra note 36, at 8.

[38] HRW, supra note 29, at 12, 28.

[39] See generally Vaughn, supra note 36.

[40] HRW, supra note 29, at 29-31.

[41] Id. at 3-4.

[42] Id. at 9, 38-40.

[43] Aragon, supra note 13.

[44] Id.

[45] See, e.g., Karrie McLaughlin & Ari Perdana, Conflict and Dispute Resolution in Indonesia (2010).

[46] Id. at 8.

[47] Id.

[48] Legal Empowerment, supra note 21, at 22.

[49] Id. at 21-22.

[50] Id. at 21.

[51] Id.

[52] Id. at 25-29.

[53] See, e.g., Nick Mawdsley et al., Building Sustainable Peace: Local Economic Development, Natural Resources and Livelihoods North Maluku, Maluku and Central Sulawesi 5 (2005).

[54] Legal Empowerment, supra note 21, at 34.

[55] Id.

[56] Daniel Barstow Magraw & Lauren Baker, Globalization, Communities and Human Rights: Community Based Property Rights and Prior Informed Consent, 35 Denv. J. Int’l L. & Pol’y 413 (2007).

[57] Legal Empowerment, supra note 21, at 34.

[58] Id. at 71.

[59] Owen Lynch & Emily Harwell, Ctr. for Int’l Envtl. L., Whose Natural Resources? Whose Common Good? Towards a New Paradigm of Environmental Justice and the National Interest in Indonesia 71 (2002).

[60] Legal Empowerment, supra note 21, at 35.

[61] Legal Empowerment, supra note 21, at 34.

[62] Id. at 29.

[63] Id. at 18.

[64] The 1945 Constitution of the Republic of Indonesia, art. 33 (3).

[65] Lynch, supra note 59, at 143.

[66] Id.

[67] The 1945 Const. of the Republic of Indonesia, art. 18B (2) (amended 2000).

[68] Lynch, supra note 59, at 143.

[69] Lynch, supra note 59, at xxxii; Legal Empowerment, supra note 21, at 22-23.

[70] See, e.g., Lynch, supra note 59.

[71] Id.

[72] The World Bank, Investing in a More Sustainable Indonesia 27 pg.? (2009).

[73] See generally David Nicholson, Environmental Dispute Resolution in Indonesia (2009); Environmental Law in Development (Michael Faure & Nicole Niessen eds. 2006).

[74] See, e.g. Legal Empowerment, supra note 21, at 3.

[75] The World Bank, A Framework for Strengthening Access to Justice in Indonesia, 5-6 (2007) [hereinafter framework].

[76] Legal Empowerment, supra note 21, at 5.

[77] Lynch, supra note 59, at 43.

[78] Framework, supra note 59, at 1.

[79] Andrea Woodhouse et al.,Village Justice in Indonesia Case Studies on Access to Justice, Village Democracy, and Governance 26 (2004).

[80] World Bank Indon., Forging the Middle Ground: Engaging Non-state Justice in Indonesia, at x. (2008) [hereinafter Forging].

[81] Id. at ix.

[82] Id.

[83] E.g., Framework, supra note 59, at 9.

[84] Woodhouse, supra note 79, at iv-v.

[85] E.g., McLaughlin, supra note 45; Matthew Zurstrassen, Indonesia’s Revitalization of Legal Aid (RLA) Program: Strengthening Legal Services for the Poor, 1 Just. for the Poor (2007).

[86] Forging, supra note 80, at 22.

[87] See, e.g., Woodhouse, supra note 79.

[88] E.g., Zurstrassen, supra note 85; Forging, supra note 80.

[89] See, e.g., U.N.Dev.Prog. Indon., Legal Empowerment and Assistance for the Disadvantaged Project (LEAD), National Strategy on Access to Justice (2009).

[90] Cate Sumner et al., Increasing Access to Justice for Women, the Poor, and Those Living in Remote Areas: An Indonesian Case Study, 6 Just. for the Poor (2011).

[91] Endah Trista Agustiana & Maria Pakpahan, Women and Peace-Building Central Sulawesi and North Maluku, 27 (2004).

[92] Id. at 9.

[93] Id.

[94] Id.

[95] Id.

[96] Id. at 5.

[97] Id.

[98] Interview with Lian Gogali, Founder, Inst. Mosintuwu, in Bali, Indon. (July 2011).

[99] Agustiana, supra note 91, at 29; HD Centre, supra note 1.

[100] Agustiana, supra note 91.

[101] Id. at 4.

[102] Id.

[103] Id.

[104] E.g., Id.

[105] Id. at 28.

[106] Id.

[107] Id. at 19.

[108] Id.

[109] Id. at 28.

[110] Id. at 29.

[111] Id. at 30.

[112] Id. at 35.

[113] Zurstrassen, supra note 85.

[114] See Legal Empowerment, supra note 21; Sumner, supra note 90; Woodhouse, supra note 79, at 94-98; for a few of the many success stories of these initiatives.

[115] Woodhouse, supra note 79, at 63-64.

[116] E.g. Aragon, supra note 7, at 59.

[117] Mawdsley, supra note 53, at 6.

[118] Sidney Jones, Briefing for the New President: The Terrorist Threat in Indonesia and Southeast Asia, 618 Annals Am. Acad. Pol. & Soc. Sci. 69, 70 (2008).

[119] E.g., Legal Empowerment, supra note 21 at 18, 35.

LawPhilosophyArt

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Sunday, August 19, 2012

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Training local women to provide access to justice: a way to protect environmental rights, build peace, and limit the reach of Islamic fundamentalist groups. A Study on Poso, Central Sulawesi, Indonesia

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