“Ratification of Rome Statute by Indonesia: A Commitment to Human
Rights or a Threat to Sovereignty?”
July, 2014
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Yvonne Kezia D. Nafi
Student Number: 10604022
Thesis for the Master’s Programme
International and European Law: Public International Law
July, 2014
Words: 14,320
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“The establishment of the International Criminal Court was a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.”
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TABLE OF CONTENTS
INTRODUCTION ... 6
CHAPTER I ... 9
THE INTERNATIONAL CRIMINAL COURT & THE CONSTITUIONALITY OF THE ROME STATUTE ... 9
I. The Needs of International Criminal Court in the Sphere of International Justice and Accountability ... 9
II. The Object and Subject of the Rome Statute ... 10
III. The Main Principles of the Rome Statute ... 11
a. The Non-retroactivity Principle ... 11
b. The Complementarity Principle ... 12
CHAPTER II ... 14
GROSS HUMAN RIGHTS VIOLATIONS AND SERIOUS CRIMES IN INDONESIA ... 14
I. The Neglected History of Genocide and cases of Gross Human Rights Violations in Indonesia ... 14
a. The Tragedy of 30 September 1965 Movement ... 16
b. Human Rights Abuses of 1977-1978 in Papua ... 17
c. Riots in May 1998 ... 19
II. A Critique on the Current Regime: The Weakness of Human Rights Enforcement. ... 21
III. Overview of the Lessons Learned from Past History ... 22
a. A Lesson from the Tribunal for East Timor ... 22
b. A Lesson from the Indonesian Ad Hoc Human Rights Courts ... 24
CHAPTER III ... 26
SOCIOLOGICAL & POLITICAL CONSIDERATIONS ... 26
I. Lingering Doubts on the Implementation of the Non-Retroactivity and Complementarity Principles ... 27
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a. Foreign Interference as a Threat to Indonesia Sovereignty – the Implication of
Complementarity Principle ... 27
b. The Political Constellation in Indonesia – the Implication of Non-Retroactive Principle . 29 II. The International Criminal Court, Victims, and Justice in Indonesia ... 31
a. Victim Participation in the Proceedings of International Criminal Court ... 32
b. Dealing with the Past Human Rights Violations ... 33
III. A ‘Symbolic’ Commitment to Human Rights ... 35
CHAPTER IV ... 38
LEGAL ISSUES ON THE RATIFICATION OF ROME STATUTE IN INDONESIA ... 38
I. The Integration Process of Rome Statute into National Law of Indonesia ... 38
a. Submission to Foreign Jurisdiction ... 39
b. The Immunity of the Government Officials ... 41
c. The Principle of ‘Ne bis in Idem’ ... 43
d. Disparity of Criminal Law ... 45
II. The Capability of Indonesia’s Cooperation ... 47
CONCLUSION ... 50
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INTRODUCTION
A decade has elapsed since the final text of the Rome Statute of the International Criminal Court (‘ICC’) was approved at the conclusion of diplomatic conference in Rome, Italy. The Presidential Decree No. 40/2004 on the National Plan of Action of Human Rights in Indonesia for 2004-2009 (‘RANHAM’) has since mandated Indonesia to ratify the Rome Statute. The Indonesian Government thereafter revised the Decree and decided to ‘reschedule’ the commitment to ratify the Rome Statute through another National Plan of Action of Human Rights for 2011-2014.1
However, Indonesia has not as yet ratified the Rome Statute and may ultimately exceed the deadline set by the Presidential Decree.
The issues surrounding the ratification of the Rome Statute have become an interminable debate. In March 2013, a delegation of government officials led by the Law and Human Rights Deputy Minister of Indonesia visited the ICC in The Hague with the mission to learn about the academic, technical, and administrative quandaries which must be overcome in order for Indonesia to proceed along the path for ratification. These issues have recently come to the fore as ratification of the Rome Statute may ultimately impact on the political constellation towards the Indonesian presidential election in July 2014, where one of the president candidates, Prabowo Subianto, is accused of orchestrating a series of human rights violations in 1998. The Great Indonesian Movement Party (Gerindra), which Prabowo founded, denied that ratifying would impact to Prabowo’s chances for the presidency, yet, added that the party would reject the Government’s attempt at ratification.2
Indonesian State authorities are aware that ratification of the Rome Statue is a highly significant act as it may impend impunity and help to prevent people or groups from committing gross human rights violations in the future. However, Indonesian State authorities remain equally bound by a fear of foreign interference in the State law enforcement system. This fear is representative of an apparent concern that institutions like the ICC and the United Nations
1 The Indonesian CICC for Diplomatic Briefing, Progress Report: Indonesia Efforts to Ratify the 1998
Rome Statute of the International Criminal Court, Jakarta, 2012, retrieved from
http://www.elsam.or.id/downloads/1357181136_Bahan_Untuk_Diplomatic_Briefing_14_Des_2012.pdf. 2 Deni Lumanow, World Criminal Court on Agenda in Indonesia, in the Jakarta Globe, 21 May 2013, retrieved from http://www.thejakartaglobe.com/news/world-criminal-court-on-agenda-in-indonesia/.
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Security Council could become institutions that undermine state sovereignty. The ICC is regarded as a challenge to state sovereignty because it is empowered to make binding decision in areas that historically have been the prerogative of sovereign states: the prosecution of crimes, crimes against humanity, and genocide, when those crimes have been committed by the State Party’s citizens or on that State’s territory.3
These obstacles to ratification have been further compounded by the various political transitions and government changes have generated numerous conflicts over the past ten years. Moreover, various human rights abuses continue to be committed in Indonesia. The plan of ratification has thus become a hot-button issue in contemporary Indonesia society. Indeed, Indonesia may not yet be in a position to ratify the Rome Statute, as many crucial issues remain unresolved, especially concerning legal and procedural issues. More time may be required by Indonesia to carefully and thoroughly review the benefits and detriments of this plan ratification.
This thesis intends to assess the moral and legal arguments that arise in the discussion of whether Indonesia should ratify the Rome Statute. The methodology will consist of an examination of primary sources of international law and secondary sources of relevant literature. The first chapter of this thesis will elaborate about the background and function of the ICC system and the main principles adopted in the Rome Statute. The issues surrounding these principles have becomes central to the debate over ratification in Indonesia. The second chapter will comprise a historical approach of an analysis of gross human rights violations that have occurred in Indonesia, and the establishment of ad hoc tribunals and human rights courts as judicial measures that have been undertaken to combat these. The third chapter will embrace sociological and political perspectives through an empirical framework in order to assess a number of critiques of the ICC system, including that it fails to adequately provide for victims reparation. The fourth chapter will discuss the principal legal issues that arise in the discussion of whether Indonesia should ratify the Rome Statute.
The thesis will conclude with an expression of the author’s view point that it is desirable for Indonesia to ratify the Rome Statute, however, recommendations for better adoption mechanisms and for better implementation of them are placed as the main outcomes of this
3 Michael J. Struett, “The Transformation of State Sovereign Rights and Responsibilities Under The Rome Statute for the International Criminal Court”, Chapman Law Review, Spring 2005, retrieved from http://www.chapmanlawreview.com/archives/1099.
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essay. In the end, whatever the decision that Indonesian government may take, the writer hopes it will bring Indonesia to a better position in supporting international criminal justice.
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CHAPTER I
THE INTERNATIONAL CRIMINAL COURT & THE CONSTITUIONALITY OF THE ROME STATUTE
I. The Needs of International Criminal Court in the Sphere of International Justice and Accountability
Human history is replete with the tragedy of genocide, war crimes, crimes against humanity, and other massive international crimes. The international community has been struggling for decades against a culture of impunity for the gross human rights violations that occur throughout the world, and to foster the punishment of its perpetrators. Indeed, the United Nations Security Council itself has been examining some of the gravest atrocities that have been committed in in recent years. In this light, the establishment of the International Criminal Court (‘ICC’) is representative of the culmination of a decades-old movement to promote international criminal justice. However, the establishment of the Court has also come to be regarded as a new milestone. Some commentators have gone as far as to suggest that the ICC’s inception marks the end of ‘Victor’s Justice’ in contemporary international law.4
Scholars have proffered two explanations for the establishment of the Court.5
Firstly, a consensus has been formed amongst the international community that the crimes of most serious concern - the crime of genocide, crimes against humanity, war crimes, and crimes of aggression - must not go unpunished, and that their effective prosecution must be ensured by taking measures of redress at the international level and by enhancing international cooperation. Secondly, there has been overwhelming demand for an internationalized system of justice. The United Nations General Assembly recognized the need for a permanent international court to deal with the kind of atrocities that had been perpetrated in World War Two when the Convention on the
Prevention and Punishment of the Crime of Genocide was adopted in 1948. The international
community finally reached an historic milestone when 120 states adopted the Rome Statute, the legal basis for establishing the permanent ICC.
4 Aristo Pangaribuan, Menuju Ratifikasi Statuta Roma, Suatu Kajian dan Analisis Kompatibilits Hukum
Acara Antara Statuta Roma dan Hukum Indonesia, Fakultas Hukum Universitas Indonesia, May 2013, page 1.
5 Achmad Santosa, The ICC and the Commitment to Human Rights, The Jakarta Post, March 19, 2009, retrieved from http://www.thejakartapost.com/news/2013/03/19/the-icc-and-commitment-human-rights.html.
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Most States acknowledge that the Rome Statute is an important instrument for the enforcement of universal human rights and that it has become essential for upholding justice in the contemporary world.6
The establishment of this Court is expected to bring a sense of restorative justice to the victims, families, and communities that have survived, or have been exposed to international crimes. Moreover, the threat of punishment is expected to defer future war criminals,7
as many as 122 states had become member of the ICC by 2014.8
Thus, whilst relatively wide coverage has been achieved, it remains apparent that further ratification would hasten the fight for international criminal justice.
II. The Object and Subject of the Rome Statute
The heinous crimes that occurred in Yugoslavia and Rwanda towards the end of the twentieth century triggered the United Nations Security Council to establish ad hoc tribunals to deal with the perpetrators of international crimes that were committed in those territories. However, the ICC differs from these ad hoc tribunals, as it is a permanent autonomous court that is not restricted by specific, limited mandates and jurisdictions. The Court holds jurisdiction to prosecute the crimes that are of most serious concern to the international community as a whole: the crime of genocide, war crimes, crimes against humanity, and the crime of aggression.9
The States that are party to the Rome Statute and the Security Council can refer ‘situations’ to the Court in which one or more of the crimes under the jurisdiction of the Court appear to have been committed. After the ‘situation’ has been referred, the Court Prosecutor may initiate investigations on the basis of the referred information in order to prosecute crimes that come within the jurisdiction of the Court.10
6 United Nations Human Rights Office of the High Commissioner, International Legal Protection of Human
Rights in Armed Conflict, United Nations Publication, 2011, page 75.
7 United Nations, “Secretary-General Says Establishment of International Criminal Court is Major Step in
March Towards Universal Human Rights, Rule of Law”, Press Release L/2890, 20 July 1998.
8 The sum of (a) states parties, (b) signatories and (c) non-signatory United Nations member states is 194. This number is one more than the number of United Nations member states (193). This is due to the Cook Islands being a state party but not a United Nations member state. United Nations Treaty Database entry regarding the Rome Statute of the International Criminal Court, Status as at 26 June 2014, retrieved from https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.
9 See Article 5 of the Rome Statute. 10 See Article 15 of the Rome Statute.
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The mandate of the ICC is to try individuals, rather than States. The prosecution can extend beyond the principal actors of a crime to persons who participate, facilitate, or contribute to a crime that may have been committed.11
However, not all of the actors that participate in these crimes are tried in actual practice. The Court has adopted a policy of focusing its efforts on individuals who bear the greatest responsibility for those crimes. This is usually determined on the evidence that emerges in the course of an investigation, and inasmuch reflects the established practice of ad hoc tribunals, which focused on a core of international crimes and a limited number of senior leaders. For instance, the Commission on War Crimes established to investigate crimes committed in World War One recommended that only ‘persons of authority’ and ‘civil or military authorities’ should be tried.12
The Nuremberg International Military Tribunal (‘IMT’) was mandated to prosecute the ‘Major War Criminals of the European Axis;’ defined in Article 1 of the London Agreement as: ‘war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities.’13
This practice is implemented to emphasize the value of equality before the law, and that no person has an absolute immunity before the law. As such, the efforts to combat serious crimes are perceived to be more effective.
III. The Main Principles of the Rome Statute
The Rome Statute gives effect to two central principles of international criminal law: the principles of Non-retroactivity and the principle of Complementarity.
a. The Non-retroactivity Principle
It is commonly acknowledged that Non-retroactivity; that is, the prohibition of the retroactive application of criminal law, is a derivative of the nullum crimen sine lege principle.14 This embodies a moral principle that underpins criminal law in general: no person should
11 See Article 2 of the Rome Statute.
12Glueck, S. (1944), War criminals: their prosecution & punishment, Periodicals Service Co, page 21. 13 Agreement by the governments of the USA, France, UK and USSR for the Prosecution and Punishment of the Major War Criminals of the European Axis, 2 August 1945.
14 Valentina Spiga, “Non-retroactivity of Criminal Law A New Chapter in the Hissène Habré Saga”, Journal
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punished for a criminal act unless that act was a feature of the criminal law at the time when that person performed that criminal act.15
.
The mandate of the ICC gives effect to the principle of Non-retroactivity. Article 24, paragraph (1) of the Rome Statute states that ‘No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.’16
Two principal limitations arise from this provision. Firstly, the ICC can only prosecute crimes that occurred prior to 1 July 2002, the date when the Statute came into force (temporal jurisdiction). Secondly, the ICC can only prosecute crimes that may have occurred after the date in which the State party in which the crimes were said to have been committed had ratified the Rome Statute. This limitation may be waived if that State has expressed prior consent for the ICC to investigate crimes that may have occurred prior that date in the form of declaration stating that the State accepts the jurisdiction of the Court to act, on ad hoc basis, prior to the ratifying date. 17 This has occurred in practice: for example, the Ivory Coast (Pantai Gading) made a declaration accordingly to Article 12, paragraph (3) in 2003 and a letter of acceptance of the ICC jurisdiction in 2010.18
The Palestinian National Authority also attempted to lodge such a declaration with the Registrar under Article 12, paragraph (3); but it was ultimately rejected because although Palestine has been recognized as a State in bilateral relations by more than 130 governments and by certain international organizations, its status granted by the United Nations General Assembly was as an ‘observer,’ and not a “Non-member State.’19
b. The Complementarity Principle
The Complementarity Principle is a fundamental principle on which the functioning of the ICC is based. This principle is first mentioned in the preamble of the Rome Statute in Paragraph 10, which stipulates that ‘… the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.’ This paragraph emphasizes
15 Ibid.
16 See Article 24, paragraph (1) of the Rome Statute. 17 See Article 11, paragraph (2) of the Rome Statute.
18 The declaration and the letter are officially retrieved from http://www.icc-cpi.int/NR/rdonlyres/CBE1F16B-5712-4452-87E7-4FDDE5DD70D9/279779/ICDE.pdf, and http://www.icc-cpi.int/NR/rdonlyres/498E8FEB-7A72-4005-A209-C14BA374804F/0/ReconCPI.pdf.
19 International Criminal Court website, retrieved from
http://www.icc- cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/pe-cdnp/palestine/Pages/palestine.aspx.
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that the ICC can only exercise its jurisdiction where the State Party of which the accused is a national is unable or unwilling to prosecute. In this sense, the ICC complements the national criminal jurisdiction. This means that State Parties retain primary jurisdiction of the obligation to investigate, punish, and prevent genocide, crimes against humanity, war crimes and the crime of aggression.20
The inclusion of this principle in the Rome Statute was partly motivated by a fear that was harbored by many prospective State Parties to the Rome Statute: that the ICC would become a supra-national criminal court and would circumscribe domestic control of national criminal prosecutions.21
The principle of Complementarity is implemented by the ICC through Articles 17 and 53, which deal with conditions of admissibility before the Court. The presumption of inadmissibility that is enshrined in Article 17 will only be waived if the ICC has established that the State Party is unwilling or unable to carry out the investigation or prosecution.22 In order to satisfy this criteria the Court must consider the following factors: whether the national proceedings have been aimed at shielding the persecutor from criminal responsibility;23
or whether they have been unjustifiably delayed which in the circumstances is inconsistent with an intent to prosecute the person;24
and or whether they were not or are not being conducted independently or impartially, and in a manner which in the circumstances, is inconsistent with an intent to bring the person concerned to justice.25
These factors must ultimately be considered in light of the principle of due process that is recognized as a general principle of international law.26
20 See Article 1 of the Rome Statute.
21 Aristo Pangaribuan, supra note 4, page 38. 22 See Article 17, paragraph 1 of the Rome Statute. 23 See Article 17, paragraph 2(a) of the Rome Statute. 24 See Article 17, paragraph 2(b) of the Rome Statute. 25 See Article 17, paragraph 2(c) of the Rome Statute. 26 See Article 17, paragraph 2 of the Rome Statute.
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CHAPTER II
GROSS HUMAN RIGHTS VIOLATIONS AND SERIOUS CRIMES IN INDONESIA
I. The Neglected History of Genocide and cases of Gross Human Rights Violations in Indonesia
The Indonesian history of genocide and other gross human rights violations lacks the notoriety of the Holocaust or Pol Pot’s Cambodian killing fields on the global stage. This large nation of islands is ethnically and religiously diverse, and many minority groups often suffer from human rights abuses and are subordinated to the political and economic interests of the state and dominant culture.27
A variety of conflicts of varying intensities have been ongoing for decades throughout the country. These conflicts have not had a high degree of exposure to international society.
Indonesia generally complies with the Rome Statute. It has stated that it supports the adoption of the Rome Statute, and that “universal participation should be the cornerstone of the International Criminal Court.”28
However, Indonesia has not officially ratified it for fear of compromising its independence to handle sensitive issues on its own.29
Despite of the complementarity principle, a concern emerged that ratifying the Statute could open Indonesia to unwanted attention by the Court and limit its options for domestic solutions if serious (international) crimes were to occur within its borders.30 Indonesia may not be high on the agenda for ICC scrutiny, but religious intolerance is apparently growing and a culture of impunity prevails amongst the country’s security forces, which will be further explained in the next section.
27 Ernesto Verdeja, Genocide: Clarifying Concepts and Causes of Cruelty, The Review of Politics 72, University of Notre Dame, 2010, page 514.
28 Amnesty International, Indonesia’s statement to the Sixth Committee of the United Nations General
Assembly, Sixth Committee, October, 1999, Fact Sheet: Indonesia and the International Criminal Court, 2006.
29 Ted Piccone and Bimo Yusman, Indonesia Foreign Policy: ‘A Million Friends and Zero Enemies, Brookings Article, 14 February 2014, retrieved from http://www.brookings.edu/research/articles/2014/02/14-indonesian-foreign-policy-piccone-yusman.
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Scholars have struggled to ascertain the boundaries of the phenomenon as it pertains to the history of organized patterns of violence in Indonesia in the discourse of genocide studies31
. Genocide holds dual meanings – it is simultaneously connotes an analytical term for a complex set of political actions and consequences and a legal-moral term for a particular series of actions which are often regarded as the worst of all human crimes.32
The term genocide holds a particular definition under international law as it is a prohibited crime under Article II of the 1948 Convention on the Prevention and Punishment of Genocide (‘the Genocide Convention.’) Under this Article, the crime of genocide contains two elements:33
1) ‘The mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and
2) The physical element which includes five acts, which are: a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.’
The United Nations General Assembly originally defined genocide as ‘the denial of the right of existence of entire human groups.’34
The Convention protects for groups – national, ethnical, racial or religious groups.35
Political murder was excluded from the Genocide
Convention because, fundamentally, the problem with including political groups is the difficulty
in providing a rational basis for such measure.36
Scholars in the field have developed a variety of alternative definitions with the aim of giving the concept some coherence and boundaries because of this omission. However, lingering doubts and remaining debates have excluded specific consensus on a more encompassing
31 See Articles II of the Convention on the Prevention and Punishment of the Crime of Genocide. 32 Ernesto Verdeja, supra note 27, page 515.
33 See Articles II of Convention on the Prevention and Punishment of the Crime of Genocide. 34 Ibid.
35 Ibid.
36 William A. Schabas, Genocide in International Law: The Crimes of Crimes, Cambridge University Press, 2000, page 113.
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definition in the scholarship.37
There are references in national legislation, case law and academic writing to groups not contemplated specifically by the Convention. The only judicial decision of the issue is in the Akayesu case, where it considered the enumeration of protected groups in Article II of the Genocide Convention, as well as in Article 2 of the Tribunal’s Statute, to be too restrictive,38
and develop the concept of ‘stable and permanent’ groups.39
The Indonesian history of Genocide has largely remained neglected in this scholarship until recent years. Exposing this history to a wider audience is an essential first path in the effort to understand the importance of the ratification of the Statute.
a. The Tragedy of 30 September 1965 Movement
In recent years, there has been an explosion of interest amongst the Indonesian population itself in opening a frank discussion of an incident that has been censured in the public sphere of Indonesia’s public sphere for some 35 years. In the mass killing in 1965-66, approximately 500,000 people were killed in Indonesia.40
The victims were massacred across Indonesia as General Suharto, the former president of Indonesia seized upon an abortive putsch undertaken by left-leaning army officers to justify an unrelenting campaign to destroy the Communist Party of Indonesia (Partai Komunis Indonesia).
The massacre of Communists began in early October 1965 in the province of Aceh in northern Sumatra. This province was predominantly composed of persons that identify their religious faith as Muslim. The massacre had ethnic and religious dimensions, Chinese as ethnic group were targeted and attacks were launched by both Christians and Muslims.41 The regions of Central and East Java, Bali, and North Sumatra were also the most seriously affected. The Communist Party had been highly active in these regions. However, massacres were carried out on Communists Party members in every part of the Indonesia Archipelago.42
Whilst no reliable figures exist for the number of people who were killed, a number of scholars have settled on a
37 Ibid.
38 Ibid, page 131. See also Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998. 39 The Chamber relied on thetravaux preparatoires of the Genocide Convention, which indicate that “the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups.” Ibid, para. 511, 516, 701-702.
40 Ann Laura Stoler, On the Uses and Abuses of the Past in Indonesia: Beyond the Mass Killings of 1965, the University of California Press, Asian Survey, Vol. 42, No. 4, July/August, 2002, page 642.
41 Ibid. 42 Ibid.
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consensus of approximately 400.000-500.000 victims. However, some have suggested that the correct figure could be half or even twice as many persons.43
Nevertheless, the precise circumstances of most deaths remain uncertain, with mistaken opinions on the identification of the victims and the motives of their killers continuing to arise in the existing literature.44
Indeed, there remains little primary evidence that details the nature of the killings. The military-dominated regime of former President Suharto, which had presided over the killings and governed Indonesia in the preceding 32 years, strongly discouraged any investigation of the events. However, the regime never explicitly denied that the massacre occurred.45
Publications that detailed an alternative narrative to the official version of events were censored prior to 1965.46
The massacre also received little international attention at the time and has seldom been studied in detail since then. Since the collapse of the Suharto regime in 1998, numerous memoirs, collections of memoirs and accounts, and scholarly works concerning former political prisoners have been published and are now widely available in Indonesia.
One account of the massacre has gone as far as to describe the events as ‘the second-greatest crime of the century.’47
Recently, even a documentary movie titled ‘The Act of Killing’ has been made, where the maker encourages the perpetrators of this mas killings re-enact their crimes for the camera, and has been well received at film festivals around the world. Nevertheless, the massacre received relatively little attention in comparative literature on mass killings until the 1990s.
b. Human Rights Abuses of 1977-1978 in Papua
During 1977-1978, the Indonesian military conducted operations in the central highlands of Papua, during which many human rights violations took place. In this incident, the Asian Human Rights Commission (‘AHRC’) reported that at least 4,146 Papuans, including children, women, and the elderly were killed by the Indonesian military.48
43 Robert Cribb, “Genocide in Indonesia, 1965-1966”, Journal of Genocide Research (2001), 3(2), page 219-239, page 219.
44 Ibid.
45 Ann Laura Stoler, supra note 40. 46 Ibid.
47 Ibid.
48 Asian Human Rights Commission, INDONESA: ‘The Neglected Genocide’ – a report detailing series of
abuses in 1977-1978 in Papua is Launched, 24 October 2013, retrieved from http://www.humanrights.asia/news/press-releases/AHRC-PRL-017-2013.
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These apparent human rights violations can be attributed to high-ranking officials of the Indonesian military that gave the specific direction to undertake such acts, and can be considered to amount to the crime genocide as defined in the Genocide Convention.49
The AHRC contends that the abuses were directed at the Papuans with the intention to destroy the population. The choice of methods of attack − mass shootings, strafing, and village bombings; which would inevitably cause detrimental casualties − underlines this specific intention of the Indonesian military (or the regime) to destroy a segment of the population.50
However, Jakarta-based human rights groups’ activists have questioned whether this pattern of events amounted to genocide. Some of these activists have claimed that the abuses must constitute government policy in order to be qualified as genocide.51
In the first genocide prosecution to come to judgment before the International Criminal Tribunal for the former Yugoslavia (ICTY), the Trial Chamber held that a State plan or policy was not a component of the crime of genocide, thus, the offense could be carried out by an individual acting along without any State involvement.52
On the State plan or policy issue, however, Article 7(2) of the Rome Statute says that crimes against humanity must be committed ‘pursuant to or in furtherance of a State or organizational policy’.53
As for the crime of genocide, although the Rome Statute says nothing more specific than what appears in Article II of the 1948 Convention, it is surely significant that the Assembly of States Parties of the ICC insisted upon something resembling a plan or policy component in the Elements of Crimes, requiring that genocidal conduct take place ‘in the context of a manifest pattern or similar conduct’ directed against a protected group.54
However, challenges to the jurisdiction of the ICC in the Kenya Situation also came and have brought questions on the exact scope of crimes against humanity on the grounds that the post-electoral violence in Kenya did not constitute crimes against humanity. While no one disputes that state
49 Ibid. 50 Ibid.
51 Diduga Tewaskan 12,397 Orang, Kodam Membantah (Allegedly Killed 12,397 Persons, The Military
Command Denied), ‘Suluh Papua’ website, retrieved from www.suluhpapua.com.
52 William A. Schabas, State Policy as an Element of International Crimes, Journal of Criminal Law and Criminology, Volume 98, Issue 3 Spring 2008, page 954.
53 See Article 7, paragraph 2(a) of the Rome Statute.
54 William A. Schabas, Has Genocide Been Committed in Darfur? The State Plan or Policy Elemen in the
Crime of Genocide, in The Criminal Law of Genocide: International, Comparative and Contextual Aspects, Asghate,
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actors are the perpetrators par excellence of crimes against humanity, the question to what entities the term ‘organizational’ refers, is subject to a lively and controversial debate.
The Indonesian government has not conclusively responded to the claims raised by the report but has expressed that it considers that the use of the term genocide as it pertains to these events is ‘very tendentious’.55
A local military officer in Papua stated that the report was a ‘hoax’ and attempted to persuade the public not to be influenced by ‘outsiders’ opinions.56
The AHRC Director responded that the report was intended to raise public awareness over the events, particularly in Indonesia, and further noted that available sources examining this phenomenon were very limited.5758
The AHRC report thus also recommended the establishment of a local truth and reconciliation commission to operate in Papua, as was initially called for by Article 45 of Special Autonomy Law that was enacted in 2001.59
c. Riots in May 1998
The demise of former President Suharto and his regime of ‘Indonesia’s New Order’ in May 2008 ushered in a period of severe violence against ethnic Chinese Indonesians. The events that comprised the May 1998 Riots were initially triggered by economic problems including food shortages and mass unemployment.60
It has been estimated that more than a thousand people died in the tragedy, at least 168 cases of rape were reported, and the sum of material damage exceeded Rp3.1 trillion (approximately US$182 million.) Associated legal proceedings regarding these cases of violence and destruction of property remain outstanding.61 The attacks on Chinese-owned shops and Chinese-looking women were presumably based on the assumption of existing
55 Suluh Papua, supra note 51. 56 Ibid.
57 Dessy Sagita and Rizki Amelia, Indonesia Accused of Papuan Genocide, Jakarta Globe, October 25, 2013, retrieved from http://www.thejakartaglobe.com/news/indonesia-accused-of-papua-genocide/.
58 Ibid.
59 Law No. 21 of 2001 on Special Autonomy for the Papua Province was issued by the Government of Indonesia to grant special autonomy status, including to regulate and execute a number of authorities which apply only in Papua. Article 45 of the law itself proposed that the Commission of Righteousness and Reconciliation shall be formed by the government in the Papua Province in order to enforce, improve, protect and respect human rights throughout the Papua Province.
60 Esther Indahyani Jusuf, Mengungkap Kerusuhan Mei 1998 Sebagai Kejahatan Terhadap Kemanusiaan
(Uncovering the May 1998 as a Crime Against Humanity), Kerusuhan Mei 1998: Fakta, Data, dan Analisa (The
May 1998 Riots: Facts, Data, and Analysis), Solidaritas Nusa Bangsa (SNB) dan Asosiasi Penasehat Hukum dan Hak Asasi Manusia Indonesia (APHI), 2007, page 22.
61 Nurfika Osman and Ulma Haryanto, Still No Answers, or Peace, for Many Rape Victims, the Jakarta Globe, May 14, 2010, retrieved from http://www.thejakartaglobe.com/archive/still-no-answers-or-peace-for-many-rape-victims/374845/.
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prejudices against this minority.62
A final report by the Joint Fact Finding Team (TGPF) assembled by the Indonesian government to investigate this hinted that state security forces were involved.63
The suspicion that armed forces were involved and undertook criminal actions has strong support among numerous scholars of Indonesian politics.64
The failure to bring to justice those who were responsible for the May 1998 violence is unfortunately not an isolated phenomenon in Indonesia. After the passage of nearly half a century, no person has yet been held criminally responsible for the 1965 killings - one of the worst massacres to mark the twentieth century.65
Not only have most of those Indonesian persons who are believed to have committed gross violations of human rights not been prosecuted, but they have also held, and continue to hold high office.66
High-ranking military and police officers that held important posts in Jakarta during the 1998 riots have also thus far escaped prosecution.67 It is understandable that the 1998 rape victims remain silent while these and other key military and political figures continue to hold positions of such influence.68
In 2003, the National Commission for Human Rights announced that it re-opened the investigation into the riots, which was met with little enthusiasm.69
On the 3th of June in the same year, the National Commission for Violence against Women released a new book on the tragedy with the title ‘Disangkal! Tragedi Mei 1998 Dalam Perjalanan Bangsa (Denied! The 1998 May Tragedy in the Nation’s Course.)’70
The challenge in reopening this case will be that it is difficult to face because it involves sexual assault and rape, which really became a traumatic incident, especially for Chinese-Indonesians. However, this event was very grave and it is also a strong candidate to be forgotten.
62 Esther Indahyani Jusuf, supra note 60, page 23.
63 Samsu Rizal Panggabean and Benjamin Smith, Explaining Anti-Chinese Riots in Late 20th Century
Indonesia, World Develpoment Vol. 39, No. 2, 2011, page 231.
64 Ibid.
65 Charles A. Coppel, Anti-Chinese Violence in Indonesia After Soeharto, Ethnic Chinese in Contemporary Indonesia, Institute of Southeast Asian Studies, 2008, page 128.
66 Ibid.
67 Harry Bhaskara, May 1998 Riots Remain Just Another Deadly Mystery, the Jakarta Post, May 19, 2007, retrieved from http://www.thejakartapost.com/news/2007/05/19/may-1998-riots-remain-just-another-deadly-mystery.html.
68 Ibid.
69 Ati Nurbaiti, Ignoring May 1998: Impunity Continues, the Jakarta Post, June 16, 2003, retrieved from http://www.thejakartapost.com/news/2003/06/16/ignoring-may-1998-impunity-continues.html.
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No one knows how long this repeated cycle of calls for justice will continue, for as time goes by the perpetrators remain unpunished. Indeed, this apparent refusal to face the past, has been replicated in other incidents - the 1984 Tanjung Priok massacre in Jakarta, the 1989 Talang Sari massacre in Lampung, the 1996 attack on the Indonesian Democratic Party, and the 1997-1998 kidnappings of activists – which ultimately increases the risk that such tragedies will occur again in the future.71
II. A Critique on the Current Regime: The Weakness of Human Rights Enforcement
Human rights advocates have noted the Indonesian government’s actions in relation to these incidents as a matter of concern. Human Rights Watch and Amnesty International have criticized the Indonesian government on multiple subjects. The Indonesian media routinely report on crucial social and political issues, including corruption, environmental destruction, and violence against religious minorities. In 2012, incidents of violence against religious minorities were frequent and occasionally deadly.72
Islamist militants mobilized and have attacked religious minorities with impunity. Dozens of regulations, including ministerial decrees on building houses of worship, continue to foster discrimination and intolerance.73
Moreover, the impunity of members of Indonesia’s security forces remains a matter of serious concern, as the military courts have a poor prosecution record and hold no civilian jurisdiction over soldiers that have committed serious human rights abuses. For instance, in June 2012, over three hundred soldiers from the 756th Battalion of the Indonesian military rampaged in the Papuan village of Wamena as a reprisal for an incident in which villagers beaten to death two soldiers that were involved in a fatal traffic accident.74
The soldiers randomly fired their weapons into shopping areas, burned down 87 houses, stabbed 13 villagers, and killed a native Papuan civil servant.75
Although military officials have apologized for the incident and promised
71 Harry Bhaskara, supra note 67.
72 Human Rights Watch, World Report 2013 – Events of 2012, retrieved from http://www.hrw.org/world-report/2013.
73 Ibid. 74 Ibid. 75 Ibid.
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compensation, the victims claimed that the responsive military investigations failed to question them about the incident.76
In 2013, President Susilo Bambang Yudhoyono’s last full year showed little improvement on the human rights situation in the country. Although the President made public appeals for greater religious freedom and tolerance, national authorities continued to respond timidly to growing violence and discrimination against religious minorities.77
Having this said, there are some indications that ratification of the Rome Statute may strengthen Indonesia’s commitment to improve the human rights situation in the country as it is participating actively in creating global peace and security, as mandated by the 1945 Indonesian Constitution.78
III. Overview of the Lessons Learned from Past History
a. A Lesson from the Tribunal for East Timor
The Special Panels of the Dili District Court (also known as the East Timor Tribunal) were created in 2000 by the United Nations Transitional Administration in East Timor (UNTAET) to try cases of serious criminal offences and gross human rights violations which took place in East Timor in 1999.79
The human rights violations that were perpetrated in Timor-Leste by members of the Indonesian military included torture of suspected resistance members and suspected FRETILIN (Revolutionary Front for an Independent East Timor) supporters, disappearances, confiscation of the land of migrant settlers from other parts of Indonesia, rapes, and forced marriages and forced sterilizations.80
The work of the Tribunal represented an effort to integrate the system of an international court into the system of national law through UNTAET Regulation No. 2000/11 on the Organization of Courts in East Timor. This form of ‘hybrid’ tribunal consisted of both international and domestic judges and was partially funded and staffed by the national government. Section 10.1 of the Regulation gave the Dili District Court exclusive jurisdiction
76 Ibid.
77 Human Rights Watch, World Report 2014 – Events of 2013, retrieved from http://www.hrw.org/world-report/2014.
78 Achmad Santosa, supra note 5.
79 Caitlin Reiger and Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, Journal of
International Center for Transitional Justice, Prosecutions Case Studies Series, March 2006, page 5.
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over “… genocide, war crimes, crimes against humanity, murder, sexual offences, and torture,” if those crime were committed between January 1st
and October 25th
, 1999. Section 10.3 of the Regulation provided for the establishment of special panels to exercise this exclusive jurisdiction composed of both East Timorese and international judges.
Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences reiterates many of the substantive legal provisions of the Rome Statute. However, an apparent lack of financial, technical, and human resources has ultimately led to a failure in the mission of the Special Panels. The work of the Panels was at all times encumbered by an acute shortage of funding.81
The implications of this deficit ranged widely from the habitual electricity failures and inadequate transcript and translation services to the absence of a security program for judges and witnesses, together with the grave difficulties in recruiting qualified personnel to the judicial, administrative, and clerical posts.82 Furthermore, prosecutorial efforts were seriously obstructed by Indonesia’s refusal to surrender those indicted, which effectively resulted in the Panels trying only a small number of low-level and poor suspects, whilst failing to reach those most responsible for the post-referendum atrocities.83The
Tribunal ran until 2006 and issued 400 indictments. However, only 55 out of 400 indictments were successful in trial.
It also appeared that the Timorese members of the Public Defender Unit had no trial experience or expertise in criminal law, and no background in International Humanitarian Law.84 The central problems of this venture have derived from the apparent failure or inability of UNTAET and the international community to provide adequate material support (through resources and suitable personnel with the necessary professional skills) and political support (for instance, in addressing the many reported problems and creating a culture of transparency and accountability).85
This deficiency has resulted in many suspects being released and others being prosecuted solely for domestic crimes, and not for other more serious than international crimes.
Furthermore, the law of criminal procedure that was adopted by this tribunal could not function properly due to these obstacles. In this Tribunal, it is admitted that, “an initial civil law
81 André Klip and Göran Sluiter, Annotated Leading Cases of International Criminal Tribunals – Timor Leste
The Special Panels for Serious Crimes 2001-2003, Volume XIII, Intersentia, 2008, page 21.
82 Ibid.
83 Ibid, page 22. 84 Ibid.
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system has become increasingly intertwined with common law features."86
This is due to the fact that UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure exemplified a great number of adversarial elements, while being more civil law oriented than the procedure at other international and internationalized tribunals.87
The United Nations Commission of Experts, sent by Secretary-General Kofi Annan to assess the progress of justice in East Timor at that time, has acknowledged that the procedure for serious crimes has not yet promoted the full accountability of those persons who bear the greatest responsibility for the serious violations of human rights that were committed.88
b. A Lesson from the Indonesian Ad Hoc Human Rights Courts
The first Ad Hoc Human Rights Court was created in Indonesia through Law No. 26 of 2000 on Human Rights Courts. The Court was established to prosecute members of the Indonesian military and police, government officials, and Timorese militia leaders that were involved in the violence that was committed in East Timor in 1998. The work of the Jakarta Ad Hoc Court is further complemented by four permanent human rights courts in Indonesia: in Jakarta, Surabaya, Medan, and Makassar. Cases brought to these courts are prosecuted by special teams of prosecutors under the Human Rights Directorate of the Attorney General’s Office. The establishment of these human rights courts was ultimately regarded as a watershed moment for the enforcement and protection of human rights in Indonesia following the collapse of the 32-year dictatorial regime of President Suharto.89
The Ad Hoc Human Rights Court is empowered by Article 5 of Law 26/2000, to prosecute ‘gross violations of human rights perpetrated by an Indonesian citizen outside the territorial boundaries of the Republic of Indonesia.’90
This includes cases related to crimes against humanity, and this provision represents the first ever of its kind in the legal history of Indonesia. However, legal problems, both formal and material in nature, have ultimately hindered the process of trials that were prosecuted under this provision. Some of the Panel judges
86 Ibid, page 20. 87 Ibid.
88 Jeffrey Kingston, Balancing justice and reconciliation in East Timor, Critical Asian Studies, 38:3, 271-302, DOI: 10.1080/14672710600871430, 2006, p. 274.
89Muladi, Pengadilan Pidana bagi Pelanggar HAM Berat di Era Demokrasi (Criminal Court for Serious
Human Rights Offenders in Democratic Era), Jurnal Demokrasi dan HAM (2000), page 54.
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have expressed their awareness that the existing national legal instrument for the Ad Hoc Human Rights Court is insufficient and has caused differing interpretations of the Law No. 26 of 2000.91 The provisions of this legal instrument that is based on the Rome Statute has in some instances contained flawed or partial interpretations and translations of the corresponding stipulation in the international agreement, or even outright omissions. For example, Article 7 on ‘Crimes Against Humanity’ in the Rome Statute provides for ‘Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’ to be taken into consideration.92
The corresponding law that was adopted in in Law No. 26 of 200993
ultimately excluded this stipulation, which makes it difficult to include, for instance, a scorched-earth campaign as an indictable incident that is said to constitute a crime against humanity.
It suffices to say that a report made by the International Center for Transitional Justice concluded that the trials as a whole must be regarded as a failure on every level, from technical competence, to institutional integrity, and political will.94
The Tribunal also failed to provide credible accountability mechanisms according to international standards; such as the failure of the prosecution in almost all of the trials to press the cases with professional commitment and to produce sufficient inculpatory testimony and documents, despite the ready availability of such evidence; and the failure of the prosecution to present a coherent and credible account of the violence in East Timor sufficient to justify convictions in crimes against humanity cases.95
This discussion has revealed that despite the apparent potential, there are major problems associated with a culture of human rights abuses and legal impunity which should be considered as giving rise to questions over proper implementation if Indonesia were to ratify the Rome Statute. The judicial mechanism that is adopted should ultimately be compatible with local expectations, and it must be realistic in the light of the circumstances of the country and the ability of its institutions to cope with the demands placed upon them.
91 Institute For Policy Research and Advocacy (ELSAM), Monitoring Report on Ad Hoc Human Rights Court
Against Gross Human Rights Violations in East Timor: Report No.9, Jakarta, Indonesia, 2002.
92 See Article 7, paragraph (1)k of the Rome Statute.
93 See Article 9 of the Law No. 26 of 2000 on Human Rights Courts.
94 David Cohen edited by International Center for Transitional Justice, Intended to Fail – The Trials Before
the Ad Hoc Human Right Court in Jakarta, retrieved from http://www.trial-ch.org/fileadmin/user_upload/documents/trialwatch/cohen.pdf.
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CHAPTER III
SOCIOLOGICAL & POLITICAL CONSIDERATIONS
International law, as expressed by states through institutions such as the League of Nations and the United Nations, has much of the trappings and appearance of ‘law.’96
Indeed, the adjudication of law by the International Court of Justice suggests that this body of rules and principles posses some modicum of enforcement.97
However, international law as such lacks a crucial element of ‘law’ as defined by Hoebel, a celebrated scholar of sociological jurisprudence: the ability to enforce standards, agreements, and shared values by force if necessary,98
and such values cannot be imposed amidst the relative heterogeneity and diversity of values and conceptions of the good. Moreover, there is a conflict between the idea of international law as a motive for states to act on the international plane, and the idea of international law as a means of communication that can be adjusted to specific political purposes.99
A science that strives for objectivity can, however, describe the various value-systems and place them in their historical setting, and it can also investigate the social functions of those values rather than accept them as such.100
This Chapter will examine the sociological and political considerations that arise in the discussion of whether Indonesia should ratify the Rome Statute. It is necessary to embark on a broader, multi-disciplinary examination due to the deficiencies in the positivistic understanding of the ‘state.’ The legal expression of the state is essentially conceived as a rigid, abstract, and static entity. This conception is far from removed from the sociological understanding of the state as that of a living and dynamic social group, which has attributes not unlike those of the individual. When we deal with a group composed of individuals, they share a reality only as an element in the mentality of individuals.
96 Robert L. Kidder, Connecting La wand Society: An introduction to research and theory, Prentice-Hall, Inc., Englewood Cliffs, New Jersye 07632, 1983, page 19-35.
97 Ibid. 98 Ibid.
99 Bart Landheer, On the Sociology of International Law and International Society, Martinus Nijhoff/The Hague, 1968, page 12-16.
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In this light, an analysis of the ratification plan of the Rome Statute no longer raises a question that is grounded solely in law, but a sociological problem; a problem in which the confluence of the sciences of politics, international relations, and social psychology conjointly interact, give expression, and hope to provide solutions for.101
The perspectives garnered from sociological and political considerations may thus play an important role in a discussion of whether Indonesia should ratify the Rome Statute. Issues of national sovereignty and the fear of political agenda all comprise part of this picture. Moreover, this analysis extends a consideration of the political role of the victims of international crimes suffered at the hands of Indonesian authorities as an important part of this ‘social entity.’
I. Lingering Doubts on the Implementation of the Non-Retroactivity and Complementarity Principles
a. Foreign Interference as a Threat to Indonesia Sovereignty – the Implication of Complementarity Principle
The issue of whether the ICC would be a threat to national sovereignty was crucial at the inception of the Court. In some respects the ICC is highly innovative, as it is the first Court of its kind that is both permanent and with broad jurisdictional reach. The drafters of the Rome Statute were thus careful to ground the Court in pre-existing law.102
The drafters were aware that states that were reluctant to sign the treaty would seize upon any parts of the Statute that were measures of progressive development as a means to reject the jurisdiction of the Court, should it ever seek to exercise its jurisdiction over those states as non-parties.103
The perception that states hold of their national sovereignty is constantly changing because the concept of universal jurisdiction is frequently abused in order to fulfill political purposes. According to the African Union (‘AU,’) such ‘jurisdictional overreach’ clearly violates sovereignty, as it undermines the territorial integrity and stability of states, and thus negatively affects the economic, political and social development of those states, as well as their capacity to
101 Ibid.
102 Robert Cryer, International Criminal Law vs State Sovereignty: Another Round?, The European Journal of International Law Vol. 16 no. 5, EJIL, 2006, page 984.
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maintain international relations.104
Indeed, some opponents of the ICC have gone as far as to suggest that the Court’s seemingly overarching jurisdiction in itself threatens the sovereignty of States such as United States. The recent precedent that was affirmed by the Court on the arrest warrants issued (through the UNSC) for the current President of Sudan, Omar al Bashir, is considered as an instance where the ICC went beyond its power. The Court was issuing the arrest warrant against Sudanese President for masterminding a campaign of crimes against humanity and war crimes by government troops and Arab militias in the Darfur region. In this case, Sudan signed the Rome Statute in 2000 but has not yet ratified it. However, the UNSC, in Resolution 1593 (2000) referred the situation in Darfur to the ICC Prosecutor, thereby granting the ICC jurisdiction over the matter.105
It has been argued by some academicians and political observers that this contradicts Article 11 paragraph (1) of the Statute, which states, ‘The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.’106
If this will be condoned by the international community, the ICC and the UNSC may become institutions that ultimately trump state sovereignty. Such a development may thus ultimately contradict the principles of international law that embody notions of sovereign equality and supremacy. Indonesia has signed, but not ratified the Rome Statue. The principal explanation proffered in account of this inaction is grounded in Indonesian’s apparent perception of a presumption of the primacy position of the ICC over national courts, and the correlated anxiety over a loss of national sovereignty.
However, upon closer examination it becomes apparent that these fears are based on illogical considerations. The well-known ‘principle of complementarity’107
that is embodied in the Rome Statute states that the ICC will only prosecute an individual if that state is either ‘unwilling’ or ‘unable’ to prosecute an individual that has been accused of international crimes. This principle holds that the ICC will allow states to have primary jurisdiction over cases should they choose to exercise it. It is principally contended that complementarity serves to induce
104 Harmen van der Wilt, Universal Jurisdiction Under Attack: An Assessment of the African Misgivings of
International Criminal Justice, as Administered by Western States, in 9 Journal of International Criminal Justice,
(2011), page 1044.
105 Michaelene Cox and Noha Shawki, Negotiating Sovereignty and Human Rights: Actors and Issues in
Contemporary Human Rigths Politics, Ashgate Publishing Ltd., 28 March 2013, page 73-74.
106 Hikmahanto Juwana (Professor of International Law, University of Indonesia, Jakarta), “Should RI Ratify ICC Statute?”, the Jakarta Post, 2 April 2009, retrieved from
http://www.thejakartapost.com/news/2009/04/02/should-ri-ratify-icc-statute.html. 107 See Articles 1 and 17 of the Rome Statute.
