Prevent
new Military Discipline Law
from
leading to impunity
Bhatara Ibnu Reza ; A PhD candidate with the Faculty of Law, University of New
South Wales in Sydney, Australia researching military politics and
international humanitarian law; He is also a researcher for human rights
watchdog Imparsial, an NGO that led the advocacy for the amendment of the
military trial law
|
JAKARTA
POST, 06 Oktober 2014
|
Amid
recent debates on the controversial Regional Elections Law, the House of
Representatives passed the Military Discipline Law to replace the 1997
Discipline in the Indonesian Military (TNI) Law.
The
government said the law was the right response to several cases of
indiscipline, especially last year’s attack on a police detention center in
Cebongan, Yogyakarta, by members of the Army’s Special Forces (Kopassus).
Instead
of continuing to discuss amendments to the 1997 law regarding military
courts, the government insists that discipline is the primary problem facing
the TNI.
The bill
on military tribunals should be deliberated again by the legislature, given
the many problems of military members involved in crimes. The Cebongan case
was just one example where the perpetrators should have been tried in a
civilian court for premeditated murder, as their actions had nothing to do
with military duty, let alone a combat situation.
The
debate to amend the law on military courts was tough since the government was
reluctant to accept the principle of civilian supremacy in legal justice,
where TNI members who breach a general criminal law would be tried in the
general justice system.
From
2005 to 2009, particularly during the deliberations on the military court
bill at the legislature, the Defense Ministry continued to buy time to retain
supremacy over the military court in the event of defendants being military
members, including the mechanism of the connectivity court where the panel of
judges trying military defendants for general crimes comprises military and
civilian judges.
In the
end, the House of Representatives’ special commission on the bill amending
the military courts law failed.
The law
on military discipline is thus a compromise. It should be followed by further
rules on the acts categorized as breaching military discipline. What is also
an urgent need is an enforcing mechanism, including procedures on punishment,
complaints and reparations and internal and external supervision to enact the
law.
It is a
must that the armed forces be a disciplined institution. Their members are
entitled to carry lethal weapons and also receive more specific training than
anyone in civilian institutions.
But the
borderline between merely breaking discipline and conducting crimes is
unclear and this gray area often provides an exit strategy that saves
military personnel from legal prosecution.
Military
discipline emphasizes the conduct of military members and governs relations
between superiors and subordinates — obedience forms the core of military
discipline. Problems mostly arise when subordinates must carry out orders
without the right to question the legality of those orders, while they cannot
have immunity from crimes on the basis of following orders. If a superior’s
order causes a crime, this would involve command responsibility.
There
are two kinds of command responsibility, first de jure, which focuses on the
formal executive structure or the authority creating the relevant policy.
Secondly, de facto responsibility, which focuses on the commander’s ability
and duty to have effective control over every act carried out by
subordinates.
The
commander thus must prevent or punish any breach involving subordinates.
Rule 153
of the Customary International Humanitarian Law also clearly states that in
armed conflict, commanders and other superiors are criminally responsible for
war crimes committed by their subordinates if they knew, or had reason to
know, that the subordinates were about to commit or were committing such
crimes and did not take all necessary and reasonable measures in their power
to prevent the crimes and to punish the persons responsible. This customary
law was already adopted by the Nuremberg Tribunals held to bring justice to
Nazi war criminals and by today’s International Criminal Court.
Despite
its limitations the procedural regulations of the military discipline law
should maintain transparency and fairness, given that frequently punishments
for both breaches of discipline and crimes are only issued to field
commanders.
In the
new law the superior officer has wide authority: first, to conduct or order
an investigation into the conduct of a subordinate, second, to implement
disciplinary sentences to each member under his or her command and third, to
delay the implementation of a sanctioned disciplinary decision. Moreover, the
superior can reduce punishments.
The
principle of military necessity is often used to protect members, blurring
the enforcement of discipline, which should be based on military necessity
for the sake of state defense.
This
principle is also recognized in international humanitarian law; it has mostly
been invoked by military operators to justify violent measures deemed necessary
to win a given conflict, a reasoning dismissed by critics as a typical
military excuse to explain away shocking “collateral damage” in modern
military operations.
The
principle is a further rationale against legal investigation and punishment
of military members to avoid the exposure that is claimed to endanger
military secrecy or other military positions.
Furthermore,
a superior can also delay investigation or punishment for a perpetrator whose
ability is considered vital to military operations.
The new
law has adopted an Advisory and Supervisory Council for Military Discipline,
an ad hoc institution crucial to monitoring and supervising military
discipline enforcement. The council should have equal composition of
membership and leadership by military officers and civilians. Furthermore,
this council should apply equal rights to both high ranking officers and
non-commissioned personnel.
During
the New Order, an officers’ honorary council was established to investigate
high and middle ranking officers and to punish them with administrative
measures, but ranks from field officers to non-commissioned personnel were
tried in the military court.
The
council was set up in the notorious case of the forced disappearances of 1998
that involved the army elite special forces, Tim Mawar (Rose Team).
The high
ranking officers, notably the then Kopassus chief Prabowo Subianto, were
never prosecuted and tried for their individual criminal responsibility
before a court of law.
The new law on military discipline needs further monitoring to ensure
the law fulfills its purpose, which is to build a disciplined and
professional national defense force and prevent prolonged impunity. ●
|
