Legal quandaries in tackling IS in Indonesia Hery Firmansyah and Adam Fenton  ;   Adam Fenton is working on his PhD at Charles Darwin University; Hery Firmansyah lectures in criminal law at Gadjah Mada University (UGM) in Yogyakarta

JAKARTA POST, 23 Januari 2015

                                                                                                                                     

The appearance of a YouTube video directly addressed to Indonesia’s military commander Gen. Moeldoko has reignited the debate about the Islamic State (IS) movement in Indonesia. In the four-minute video, uploaded on Dec. 25 (and subsequently blocked), an Indonesian male, claiming to speak on behalf of IS, made direct threats against Indonesian security forces and the integrity of the Indonesian state. The man, using the name Abu Jandal al Indonesi, addressed Moeldoko, saying “We have heard that you wish to support coalition forces to eliminate the caliphate […] and if you do not come to us, we will come to you.” Indonesia, a co-sponsor of UN Security Council Resolution 2170, which calls on states to suppress the flow of foreign fighters, financing and other support to Islamist extremist groups in Iraq and Syria, has a duty to prevent any kind of support for IS, particularly fighters or funding, from leaving Indonesia. Following a previous YouTube video called “Joining the Ranks”, which appeared in August 2014, the government “banned” IS in Indonesia. However, while the banning showed a high level of political will, in the absence of any supporting government or presidential regulations, the ban amounted to little more than a statement of policy. Furthermore, it left police in a kind of legal limbo about what actions they could or could not take against IS supporters. Several IS supporters, including the self-proclaimed president of IS in Indonesia, Chep Hermawan, were arrested and subsequently released, as police were unable to charge them with any offense. The question of the Indonesian legal approach to IS has been discussed at the highest levels, as there are no specific laws on the issue. The most commonly discussed legal option is to revoke the citizenship of IS supporters. Experts, including the former head of Indonesia’s National Counter Terrorism Agency, Ansyaad Mbai, have stated that under the Citizenship Law, those who swear allegiance to a foreign state automatically forfeit their Indonesian citizenship. Potentially this law could be applied to individuals, both those within Indonesia and overseas, who swear allegiance to IS, to invalidate their Indonesian citizenship. Applying the Citizenship Law to foreign terrorist fighters potentially creates both a deterrent effect and a practical solution — those who have departed Indonesia to join IS will be unable to return. However, there are significant legal and practical issues that must be considered in applying this law to foreign terrorist fighters and supporters of IS. To apply the law, Indonesia would have to implicitly recognize IS as being, in some form, a foreign state. In taking actions to weaken IS, the government may, inadvertently, add to the legitimacy of its claim to statehood. Further, for the hundreds or even thousands of Indonesians who have sworn allegiance to IS from within Indonesia, what would be the practical result of invalidating their citizenship? Would they be made stateless and required to leave the country? If so, where would they be “deported” to? It is unlikely that any other country would want to receive them. And sending them anywhere where they could continue their terrorist related activities would be a clear violation of UNSC Resolution 2170. A better solution would be to apply Article 23(d) of the Citizenship Law, to those who have already departed to Syria and Iraq to join IS. The article 23 makes no mention of allegiance to a foreign state and refers only to joining a “foreign military”. Further, for those who remain in Indonesia, the government’s intelligence services should monitor them closely and suspend their travel documents when it appears they are at risk of leaving Indonesia. The power to suspend passports is among a raft of anti-terrorism amendments to Australia’s laws. This approach would achieve the result of both preventing Indonesian foreign terrorist fighters currently in Syria from returning to Indonesia, and stopping those wishing to join from leaving the country. It appears that the war will continue for some time. Foreign terrorist fighters who participate in a conflict threaten to bring home their deadly skills and encourage those in their networks to commit terrorist attacks. In Indonesia, some groups and individuals have declared their support for the self-declared caliphate. Indonesia’s most notorious Islamist inmate, Abu Bakar Ba’asyir, declared his support for IS from his prison cell on Nusakambangan. Ba’asyir, while imprisoned and elderly, still has followers numbering in the thousands. The threat of renewed IS-inspired attacks on Indonesian soil is therefore real and the government should take firm action to clarify the legal position and consequences for those who declare any kind of support for IS. ●