The ICC and the commitment to human rights

The ICC and the commitment to human rights Mas Achmad Santosa ;  The writer, A Rule of Law Specialist, is currently Deputy Head of the President’s Delivery Unit for Development Monitoring and Oversight

JAKARTA POST, 19 Maret 2013

There were at least two main reasons for the establishment of the International Criminal Court (ICC). First, the world affirmed that the most serious crimes of concern to the international community as a whole namely; 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 at the international level and by enhancing international cooperation. Second, since 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the United Nations General Assembly recognized the need for a permanent international court to deal with the kind of atrocities which had just been perpetrated.  This idea of a system of international criminal justice reemerged after the end of the Cold War. Subsequently, an ad hoc international tribunal for serious crimes in the territory of the former Yugoslavia and in Rwanda established by the UN Security Council had the most significant impact on the decision to convene the conference which established the ICC in Rome on July 1998. Currently 122 countries are parties to the Rome Statute. The Rome Statute recognizes two important principles: non-retroactivity and complementarity. Non-retroactivity means that the ICC has jurisdiction only with respect to events which occurred after the entry into force of its  statute on July 1, 2002.  If a state becomes a party to the statute after its entry into force, the court may exercise its jurisdiction only with respect to crimes committed after the entry into force of the statute for that state, unless that state has made a declaration  accepting the jurisdiction of the ICC retroactively. However, the court cannot exercise jurisdiction with respect to events which occurred before July 1, 2002. For a new state party, the statute enters into force on the first day of the month after the 60th day following the date of the deposit of its instrument of ratification, acceptance, approval or accession. The second most important principle is complementarity which means the ICC does not replace national criminal justice systems — rather, it complements them. States retain primary responsibility for trying the perpetrators of the most serious crimes. If we fully understand the essence of these two main principles — non-retroactivity and complementarity — the ICC is not a threat to our nation’s sovereignty, but an instrument to pursue global justice and security by ending the impunity for the most serious crimes of concern to the international community. Is there any exception to the principle of complementarity? There are at least four different ways that the ICC can initiate investigation or prosecution. First, a situation of inability or unwillingness. The ICC can investigate and, where warranted, prosecute and try individuals only if the state concerned does not, cannot or is genuinely unwilling to do so. This might occur where proceedings are unduly delayed or are intended to shield individuals from their criminal responsibility. In order to determine inability in a particular case, the ICC can only take over the investigation and prosecution if the particular state has suffered a total or substantial collapse in its national judicial system or the system is unavailable thus preventing the state from carrying out its criminal enforcement proceedings.  To date, none of the cases investigated and prosecuted by the ICC have been based on unwilling-or-unable situations. Second, by request of the UN Security Council. The UN Security Council, acting under chapter 7 of the Charter of the United Nations may also request the ICC prosecutor to investigate any serious crime under the Rome Statute whenever such crime appears to have been committed in any country. Such referrals have been made by the UN Security Council on Darfur/Sudan on March 31, 2005 and Libya on Feb. 26, 2011. Third, referral of a situation by a state party. A state party may voluntarily refer a case to the ICC prosecutor to investigate where one or more serious crimes appear to have been committed.  As far as possible, a referral shall specify the relevant circumstances and be accompanied by supporting documents. There have been at least three referral cases to the ICC; from the government of Uganda (2003), Central African Republic (2004) and Democratic Republic of Congo (April 2004). Fourth, the ICC Prosecutor’s Initiative to Investigate (proprio motu). The ICC prosecutor may initiate investigations proprio motu (on one’s own initiative) on the basis of information on crimes within the jurisdiction of the ICC. Proprio motu should be based on the seriousness of the information received and there being a reasonable basis to proceed. If these two elements are satisfied then the prosecutor should request an authorization to the Pre-Trial Chamber, consisting of three independent judges, to get authorization for investigation. Proprio motu has been applied so far in Cote d’ Ivoire (2011) and Mali (2013). For Indonesia, which has planned to ratify the Rome Statute as outlined in the National Human Rights Action Plan (RANHAM 2011-2014), two of the four ways for the ICC to initiate investigations namely; the unable-or-unwilling situation, and proprio motu (ICC prosecutor’s  initiative), should be studied objectively and carefully, so as to include intensive consultation with the ICC itself (the ICC president and prosecutors) and relevant state parties, particularly parties from ASEAN who have already ratified the statute: the Philippines, Cambodia and Timor Leste. The government of Indonesia can commission a team consisting of international law and human rights experts who have not been influenced by any predetermined interests to come up with a strong analysis, especially with regard to how the two issues could impinge on national interests and how the risks could be prevented and resolved. There are some potential benefits for Indonesia ratifying the Rome Statute: Strengthening our commitment to promoting and protecting human rights at the domestic as well as global level; strengthening Indonesia’s commitment to participating actively in creating global peace and security as mandated in the 1945 Constitution; motivating ourselves to protect human rights, uphold the rule of law and strengthen our democratic system through, among other things improving our criminal justice system, and finally widening access to international law and human rights cooperation. Undoubtedly as a country which is committed to the protection of human rights and an important global player, Indonesia will enjoy benefits from the ratification of the Rome Statute. However, in this context we need to have a clear outline and roadmap for strengthening our democratic system by accelerating the independence of the judiciary, ensuring that the strategy of peaceful social-conflict prevention and resolution as outlined in the law on social conflict handling (Law No. 7/2012) is consistently implemented, and by improving the professionalism, independence and even-handedness of law enforcement. Close coordination among the executive, legislature and judiciary with support from civil society organizations is a must in order to answer the challenges above. ●

Is Australia’s diplomatic push too late?

Is Australia’s diplomatic push too late? Erin McMahon ;  An Australian Journalist and Educator who has spent several years living, studying and working in Indonesia

JAKARTA POST, 19 Maret 2013

As an Australian with a significant interest in Indonesia, it was with a mixture of optimism and pessimism that I read about last week’s (March 3-4) Indonesia-Australia Dialogue at Sydney’s Intercontinental Hotel. The keynote speakers at the high-profile event were Australia’s foreign minister, Bob Carr, and the opposition foreign spokesperson, Julie Bishop. Addressing former diplomats, senior academics and journalists from both countries, the mood seemed buoyant and positive about the prospects for the relationship. Carr cited the government’s “Asian Century” white paper and its particular focus on boosting the number of young Australians living and working in Indonesia on the bilateral work and holiday visa. Bishop, meanwhile, championed the opposition’s proposed scheme to dramatically raise the number of Australians studying in the country. Considering there will be an election in Australia later this year, it is good to see that both sides of politics outwardly value the relationship and have committed themselves to doing more to steer it in the right direction. But like at most of these big, flashy gatherings, there seems to be more interest in patting each other on the back and saying how well everything is going than actually discussing what has been going wrong. An Indonesian I know described our countries’ diplomatic styles as being the perfect antithesis of each other, yet oddly complementary. One likes to talk a lot, while the other likes to nod and smile politely. Despite the all the positive spin, the bilateral relationship is years behind where it should be. And nowhere is this more evident than in the education sector. In any given year, there are only about 500 Australians studying in Indonesia, and the vast majority of those are in short course programs of about a month in duration. Meanwhile, as many as 20,000 Indonesians are studying at Australian universities. It is ridiculous to think that Indonesians have not noticed this imbalance and goes a long way to illustrating what we really think of each other. Back in Australia though, the situation is even more dire. Over the past 10 years, there has been a 40 percent drop in the number of students studying Indonesian — by some counts, there were more Australians studying Indonesian in the 1970s than there are today. If it were not for plate tectonics, you could be forgiven for thinking our countries have been drifting apart. Over the years, both of Australia’s major political parties have had ample opportunities to arrest the decline of Indonesian language studies and yet precious little has actually been done. They have sat on their hands while Australian universities continued to cut their Indonesian programs and high schools struggled to fill their senior classes. So why now? Why is it imperative that Australians go across and learn more about their geographically and strategically important neighbor to the north now and not, say, 10 years ago, when I was studying the language in a university class of about 10 people? At the risk of being called a cynic, could it be because of recent revelations that, at current growth rates, Indonesia’s economy may eclipse Australia’s in as little as 20 years? Seems an awful lot like a relationship of convenience where we are only interested in being nice neighbors when we can get something out of it. Sure, it may be a case of better late than never, except for the fact that there is another election on the horizon that will have far more implications for the bilateral relationship. Next year Australia will lose the most pro-Australian leader in Indonesia’s history and, with President Susilo Bambang Yudhoyono out of the picture, who knows what outlook the next president might have. Unfortunately, Australia may have been caught napping with its jam karet diplomacy and it is now a case of too little too late with this latest push. ●