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9 [Nine] Facts
Responding Statement of Retired Maj. Gen. Kivlan Zen on Kidnappings and Enforced Disappearances of Student Activits between 1997 and 1998
Gerakan Melawan Lupa [Movement Against Forgotten]
Retired Maj. Gen. Kivlan Zen in the debate on television, on 28 April 2014, stated: "Which kidnapped and disappeared, I know where it is, were shot, and thrown away ..."
In relation with the above-mentioned statement, Gerakan Melawan Lupa [Movement Against Forgotten] stressed that the statement have legal consequences for those who concerned and also to the relevant state agencies, for the following reasons:
- The statement confirmed that the kidnapping and enforced disappearance occurred between 1997 and 1998, and it involving military institutions, through military operations, including Tim Mawar’s operation, in which the whereabouts and the fate of 13 victims are remain unknown until today.
- Gross human rights violation in the case of enforced disappearance is a continuing crime because of the effect is continuing[continuing crimes], in which the victim's whereabouts unknown, as stated in the United Nations Declaration on the Protection of All persons from Enforced Disappearance, Article 17, paragraph 1 states: "Acts constituting enforced Disappearance Considered shall be a continuing offense as long as perpetrators continue to conceal the fate and whereabouts of persons who have disappeared." In this context, all the information support for the completion of this case, including a statement of Kivlan Zen has a legal value to be followed up by the Investigator, including the President.
- Kivlan Zen [Former Staff of Army Strategic Reserve Command], his statement has a legal consequences to provide information and inform the National Commission on Human Rights as the investigator of inquiry processes, and the Attorney General as the Investigator of gross human rights violations cases in the case of kidnapping and enforced disappearances 1997/1998. These include the obligation under Article 165 of the Criminal Code, which requires that every person who knows or has information about any crime should report it to law enforcement agencies. If Kivlan Zein refused to provide information to the National Commission on Human Rights and Attorney General, of then the actions can be categorized as obstruction of justice for hiding information over the kidnapping and enforced disappearances.
- The Government, in this regard, the National Commission on Human Rights, the Attorney General of gross human rights violations cases, are obliged to immediately examine Kivlan Zen [Former Staff of Army Strategic Reserve Command], and Prabowo [Former commander of Special Forces Command (Kopassus)] for questioning their responsibility over the enforced disappearances of activists 1997/1998, as stipulated in article 42 of Law No. 26 of 2000 on Human Rights Courts and Article 6 of the Convention on the Protection of All Persons from Enforced Disappearance, that the military commander can be responsible for criminal acts committed by forces under the effective command and control, or due to ineffective control.
- Prabowo Subianto, a former commander of Special Forces Command [Kopassus], the boss of Tim Mawar can not escape from the responsibility of the 13 victims were remain dissapear, according to the Executive Summary report of the National Human Rights Commission stated that the witness’ testimony – 7 people have disappearand and released – mentioned that they met with most of the 13 victims were remain dissapear in the Post Kotis Cijantung Kopassus’ headquarter, which at that time Prabowo as the commander of Kopassus.
- The Principle of Nebis in Idem, in this case cannot be applied because there is a difference between the jurisdiction of military courts and human rights courts; a] Military Court in 1999 only for eleven member of Special Forces who are members of Tim Mawar, b] Military Court only for cases of kidnapping nine student activists who have been released, c] Military Justice does not reveal command responsibility in the operation carried out by Tim Mawar, d] Military Justice fails to explain the fate of thirteen other victims, who are still disappear, who was being held in the same place with some of the victims have been released. E] The defendant only charged with a crime of deprivation of liberty [Article 333 paragraph  of the Criminal Code and article 55 paragraph 1 of the Criminal Code] and 4 convicts were sentenced in this case, get career promotion.
- Even towards 9 [nine] victims who have been returned, Prabowo cannot escape from the command responsibility for crimes committed against the nine victims, namely: arbitrary arrests, torture, persecution and deprivation of liberty as stated in the Executive Summary of National Human Rights Commission’s report. Returns 9 victims does not necessarily make that crime cleared.
- President Susilo Bambang Yudhoyono should immediately create a special team to search thirteen Victims of Enforced Disappearances and make the decree on Human Rights Courts for Enforced Disappearances’ cases between 1997 and 1998, the Attorney General immediately conduct an investigation, as four recommendations of the Indonesian Parliament in 2009, and recommendation of the Ombudsman of Republic of Indonesia in 2013, in order to immediately stop this undue delay and mal administration of this case and the victims get legal certainty.
- Based on eight points above, Prabowo is inappropriate to become a Candidate of President due to his moral and legal flawed.
Jakarta, May 5th 2014
Gerakan Melawan Lupa [Movement Against Forgotten]
Imparsial, KontraS, YLBHI, Elsam, ICW, HRWG, Politik Rakyat, LBH Jakarta, LBH Pers, Institute Demokrasi, KASUM, JSKK, IKOHI, Ridep Institute, KRHN, LBH Masyarakat, Perempuan Mahardika, LBH Surabaya, AJI Indonesia, PUSHAM-UII Yogyakarta, INFID, Aliran Batang Bungo-Jambi [ABB-Jambi], PIAR NTT, Forum Pemerhati Aspirasi Rakyat Kota Kupang, Freepublik NTT, SETARA Institute.