Realpolitik and Indonesia’s imminent planned execution of Australian prisoners John Blaxland ;  A senior fellow at the Strategic and Defence Studies Centre at the Australian National University

JAKARTA POST, 21 Februari 2015

                                                                                                                                     

                                                

Australians warmly welcomed the election victory of President Joko “Jokowi” Widodo. It seemed to portend a vibrant new chapter in the bilateral relationship and to present an opportunity to move beyond the difficulties experienced in recent times. Those difficulties have been most visibly manifest over the issue of beef, boats and spies — that is, the abrupt and unhelpful cessation of the live cattle trade from Australia (since resumed), the relentless approach to stopping people smugglers sending refugee-laden decrepit boats to Australia (since stopped) and Edward Snowden’s stories of espionage (since addressed by a joint declaration). Australian short-sighted and sometimes hypocritical approach to relations with Indonesia has set a poor tone for bilateral relations and left little room in Indonesia for sympathy towards Australia. Despite these hiccups in the relationship, Australian officials have long recognized the importance of being respectful and deferential towards Indonesia, its most important neighbor, as well as the importance of effective collaboration with Indonesian authorities across a range of areas. That collaboration is for the mutual benefit of both countries and for many years Australia has quietly but effectively collaborated with a range of Indonesian government agencies in support of the interests of both countries. Diplomatic collaboration has included partnership in ending the war in Cambodia, cooperating to bring about the APEC leaders meetings, the Bali process to counter people smuggling and terrorist financing and shared membership of MIKTA (Mexico, Indonesia, South Korea, Turkey and Australia) grouping within the G20. Successive Indonesian governments have recognized that mutual benefit and worked closely with Australian counterparts. This has been helped by the tone set from the top. Former President Susilo Bambang Yudhoyono knew Australia well and recognized that beneath the informal and sometimes abrupt style of his Australian counterparts, lay a genuine warmth towards Indonesia, stretching back to support for Indonesian independence after World War II. In the face of droughts, floods, tsunamis and terrorist attacks, Australians have repeatedly responded with goodwill and generosity. But Yudhoyono recognized also the limits to what a democratically elected Australian Government was able to achieve. He knew that Australians have reacted negatively against excesses in the past. He had an appreciation for the importance of strong and constructive bilateral ties with Australia and the pitfalls that can derail relations. One wonders if his successor, Jokowi, has the same appreciation. A willingness to consider clemency may well demonstrate that same astuteness. Today, two Australian citizens, Andrew Chan and Myuran Sukumaran, face imminent execution by firing squad. The Indonesian foreign minister is right to declare that this is an internal matter of law and order and is for the Indonesian justice system to deal with. But in this case the issue is now much more than that, with legal, social, strategic and wider international ramifications that are closely connected. Legally, there are important provisions which should constrain Indonesia’s desire to apply the death penalty. The 1966 International Covenant on Civil and Political Rights, to which Indonesia is a party, stipulates the sentence of death may be imposed only for “the most serious crimes”. It is widely considered that drug trafficking does not fit into this category. Jokowi recognizes this in principle by appealing for leniency for Indonesian citizens facing the death penalty abroad. But not so for those not fated to be Indonesian citizens yet jailed in Indonesia. Socially, the two Australians sentenced to death have made considerable efforts to reform and make amends for their crimes and have sought to reinvent their lives and to make a positive contribution to those around them. The combination of legal and social aspects has generated a strong reaction in Australia, with potentially significant strategic ramifications. All living current and former Australian prime ministers have appealed for the death sentence to be averted. A majority of parliamentarians have joined in appeals for clemency. These statements are symptomatic of a growing groundswell of concern and disappointment in Australia that Indonesia does not listen to its neighbor and does not seem to care. Australian Prime Minister Tony Abbott, in his own clumsy way, sought to remind that Australia provided significant financial and material aid following the Tsunami that struck Aceh a decade ago. His manner may have irritated officials in Jakarta, but he did this to bring to Jokowi’s attention the gravity of the situation, not to gloat. Australia is eager to foster closer ties and recognizes it has little if any leverage over Indonesia; yet when it helps, its support is meaningful and significant. But what appears a minor issue to Indonesians is, in Australian eyes, becoming a defining moment in the bilateral relationship. Proceeding with the executions may limit Australia’s future policy options for engaging with Indonesia. Feeding strong and hostile sentiments is not in the interests of either country, but the Australian people likely will demand that their government do something. This does not need to be the case. From Jakarta, this might seem a bit overblown and worthy of dismissal. Indonesian officials recognize that stable and constructive relations with Australia are in the interests of both countries. They also recognize that in a vibrant and sometimes turbulent democracy like Australia’s, a prime minister cannot ignore a strong popular groundswell in reaction to issues that happen in the region. Abbott is no exception. Perhaps Jokowi can prove to be the more mature leader, recognizing that despite Australian clumsiness and apparent tactlessness, it serves Indonesia to be conciliatory in this instance. A considered second look at the matter would demonstrate to Indonesians and the world that Jokowi is not only tough on crime, but also is a man of compassion; that he is responsive to reasonable overtures, and strategically savvy, recognizing the utility of seeking to enhance not undermine bilateral relations with Australia. Jokowi is president of a proud sovereign and independent and much larger nation, so he can chose to ignore such appeals. Despite their differences both countries need to get along. Indeed, they are both greater when collaborating than when arguing. Indonesia, for instance, faces a range of diplomatic and domestic challenges on which Australia could be a willing and creative partner. Clemency would not only demonstrate Jokowi’s recognition of there being a path of restoration, but would be an astute strategic move, demonstrating how a great leader rises above emotional responses to calm public passions and help bolster ties. ●

Death penalty does not deter drug traffickers Ricky Gunawan  ;   Director of LBH Masyarakat (the Community Legal Aid Institute), based in Jakarta

JAKARTA POST,  10 Desember 2014

                                                                                                                       

The Attorney Generals Office (AGO) has announced its plan to execute five people by the end of 2014: mostly drug traffickers. Indonesia is among the few countries with the harshest drug laws, executing drug traffickers to create a deterrent effect. However, Indonesia’s position to retain the death penalty, particularly for drug offenses, is problematic. First, the Indonesian legal community often refers to drug trafficking as an “extraordinary crime”, thereby justifying the extraordinary punishment of the death penalty. However, labeling drug trafficking as an extraordinary crime is groundless from the perspective of international law. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) — which Indonesia has ratified — states that for countries that have not yet abolished the death penalty, it may only be imposed for “the most serious crimes”. Various UN bodies, such as the UN High Commissioner for Human Rights, UN Human Rights Committee, UN Special Rapporteur for extrajudicial, summary or arbitrary executions killings and the UN Office on Drugs and Crime, have consistently asserted that drug offenses do not meet the threshold of “the most serious crimes” to which the death penalty may lawfully be applied. In his 2012 report to the UN General Assembly, the UN Special Rapporteur on extrajudicial killings stated that the death penalty should only be applied for offenses of intentional killings, based on the practices of retentionist states and the jurisprudence of the UN and other bodies. In March 2014, the International Narcotics Control Board — the independent and quasi-judicial body for monitoring government compliance with the three international drug control conventions, of which Indonesia is a member, encouraged states to abolish the death penalty for drug-related offenses. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does not recognize the concept of “extraordinary crimes” for drug offenses. The convention places drug offenses into two categories. First, drug offenses of a “grave nature”, such as the production, manufacturing and extraction of drugs. Second, offenses that are “particularly serious”, such as the involvement of organized criminal groups in the production of drugs. The 1988 convention does not explicitly recognize the death penalty for drug offenses. Therefore, from an international drug law and international human rights law perspective, categorizing drug trafficking as an “extraordinary crime” and applying the death penalty to drug offenses is indefensible. Second, the death penalty is retained because it is believed to have deterrence effect. This view is simply invalid. In 2008, Indonesia executed two drug traffickers and in 2013, it executed one more drug trafficker. According to the 2012 death penalty report by the Harm Reduction International group, there were approximately 100 people on death row in Indonesia, including 58 drug traffickers. According to the 2013 annual report of Indonesia’s National Narcotics Agency (BNN), there were 260 drug traffickers arrested in 2013 — an increase from 157 people in 2011 and 202 people in 2012. These numbers suggest that while the death penalty is continuously imposed and executions are carried out, the crime of drug trafficking shows no sign of abating. It seems obvious that the death penalty does not deter drug traffickers. Further, in the past few years there have been cases where drug traffickers were able to operate from inside the prison. This indicates that they may not be afraid of the penalty because they can bribe prison officials and other law enforcers. Hence, the argument that death penalty carries a deterrence effect is implausible. Third, it is also often argued that drug trafficking has fatal consequences for younger generations and therefore drug traffickers deserve to be sentenced to death. But as William Schabas — an international scholar on the death penalty — rightly points out, in most cases, the drug traffickers are arrested and the drugs are confiscated. Interdicting drugs before they reach the public means that the trafficker sentenced to death could not have sold the drugs nor could anyone else and, hence, no lives have been lost. Fourth, the higher probability that a harsh sentence is to be passed down, the higher probability that corruption is involved. It is widely known that the Indonesian legal system is tainted with corruption and bribery. In this corrupted legal environment, if a drug trafficker is arrested and punishable by the death sentence, he or she is ready to pay high sums to enforcers to avoid prosecution or seek lenient sentences. Rich drug traffickers will likely be able to evade the death penalty while those who are poor and cannot afford to bribe will be the ones facing execution. The intention that the death penalty will get rid of drug traffickers is therefore not achievable and the risk that the state executes the wrong person is higher. Fifth, organizations running illicit drug trafficking are involved in a complex network controlled by some powerful people. Those arrested are often just drug mules taking the greatest risks. Imposing the death penalty on them will not deter the drug kingpins controlling the syndicate as they will continue to seek, groom and exploit vulnerable individuals to do the dirty jobs. Illicit drug trafficking unquestionably has harmful effects on individuals and society. However, there is a common misconception that imposing the death penalty and executing those involved in drug trafficking is the magic formula to address this problem. As the above arguments demonstrate, the death penalty is ineffective for combating drug trafficking, and thus Indonesia must evaluate its strategy. Indonesia should probably start by evaluating its unrealistic “2015 Indonesia Drug Free” program. While drugs have negative impacts on human beings, drugs can be positive too, for the purposes of health, science and technology. This means that we cannot live in a “drug-free world”, but looking at Indonesia’s stubbornness to retain the death penalty despite its useless effect, one would ask whether Indonesia is open and ready to evaluate its misguided beliefs. ●