A group of government officials, NGO
activists and journalists visited the International Criminal Court (ICC)
in The Hague, Netherlands recently. Led by Deputy Law and Human Rights
Minister Denny Indrayana, the delegation intended to learn about academic
studies as well as administrative and technical procedures required for
ratifying the 1998 Rome Statute (The Jakarta Post, March 4).
It was not the
first mission sent by the government to the ICC. According to the
president of the ICC, judge Sang-hyun Song, many Indonesian delegates
have come to the court with the same objective, but the country missed
the ratification momentum in 2008 based on the National Action Plan for
Human Rights 2004-2009.
The
ratification plan was then included in the National Action Plan for Human
Rights 2011-2014, which sets the date of accession of the statute as 2013.
For many
years, experts and government officials have been debating this issue.
The opposition believes the ratification will endanger the sovereignty of
the state and pave the way for prosecution of retired generals for their
alleged involvement in past human rights abuses.
For almost a
decade, the opposition has been unable to provide clever arguments for
its resistance to the ratification.
Some say the
ratification will discourage younger generations from joining the
Indonesian Military (TNI). Of course, this argument ignores Indonesia’s
capability in international relations and highlights a lack of
understanding about international
law.
Up to now 121
states have ratified the Rome Statute, twice the number of parties when
the statute entered into force in 2002. Indonesia has been busy buying
time by searching for weaknesses in the court only to come to a
conclusion that ratification of the statute would threaten state
sovereignty.
In 2010,
concerns loomed in Indonesia over the implementation of the
complementarity principle, which the country’s delegates in the Kampala
Review Conference misunderstood. In connection with the principle of
complementarity, Indonesia reemphasized the importance of Paragraph 10 of
the Preamble and Article 17 of the statute and that the concepts of the
“inability” or “unwillingness” of Indonesia to prosecute state officials
for their role in human rights violations should not easily be used as a
pretext for ICC intervention.
As a country
that was involved actively in the negotiation of the statute, Indonesia
has mistakenly understood the principle, which is the backbone of the
court. The statement evinced Indonesia’s failure to understand the
substance of the Rome Statute.
At home,
Indonesia has been busy with maneuvering by the security sector in
proposing a number of bills that potentially jeopardize democracy and
human rights, such as the bill on national security, the bill on social
conflict management and the bill on state intelligence.
Special
emphasis should be given to the bill on national security which, if endorsed
by the House of
Representatives before it ratifies the Rome Statute, will create a more
repressive atmosphere in the country and as such, will shift the policy
direction of the government.
Those
developments lead to pessimism about the prospect of the ratification,
although it is true that civil society can challenge the draconian bills
in the Constitutional Court.
Even if the
court upholds the draconian laws, the judges’ interpretation of them will
help state officials to identify dos and don’ts while conducting their
duties. Furthermore, the main purpose of ratification is to change the
attitudes, strategies and policies of the security apparatus.
The TNI and
the National Police are the two primary actors in the security sector who
often claim to be easy targets of the ICC because of their use of
excessive force.
To minimize
that situation, the international law provides full protection to
security forces that use force within the legal framework. It means, they
can use violence based on the principles of proportionality, necessity
and last but not least humanity.
Moreover,
Indonesia’s accession to the Rome Statute will have a positive impact on
the military, through a strengthening of clear rules of engagement during
military operations which emphasize the protection of rights and
fundamental freedoms.
It is time
for our security forces to stop worrying about their activities but
rather look for protection from the International Court. As we know,
Indonesia is very active in sending peacekeepers under the United
Nations’ flag throughout the world, the statute will provide full
protection to them if crimes occur in their areas of duty.
In other
words, Indonesia has spent too much time studying the court, this is the
right time to join the ICC. There is no reason for Indonesia to delay the
ratification of the Rome Statute. The statute is not against the
Constitution, but rather strengthens it by embracing Indonesia in a broad
front against impunity.
In terms of
security sector reform, ratification can support and enhance
professionalism and respect for human rights among the security services
and encourage further reform within the security sector. Besides, the
international community is waiting for Indonesia’s realization of its
commitment to ending impunity and embracing international justice.
The
ratification will contribute to the process of Indonesia’s transition to
democracy by building a society that is able to say “no” to serious human
rights violations and impunity. ●
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