Does the Indonesian government adequately protect human rights?

It does and it does not; it really depends on the context. Indonesia looks good among its neighbours in Southeast Asia in terms of protection of civil and political rights, and to some extent economic, social and cultural rights, although room for improvements exists.

But one of the promises of the current president, Joko Widodo, during his 2014 campaign was about international criminal justice, which involves rights for many victims of past cases of human rights abuses in Indonesia. In that sense, it does not protect these rights, including the rights to justice, truth, reparations or guarantees of non-recurrence.

For example, in the case of the conflict over independence for East Timor in 1999, there were many gross violations of human rights. However, there has never been any sort of effective judicial process to address gross violations of human rights, and crimes against humanity in particular.

In 1965–66, during the government’s violent anti-communist operations, 500,000 people or more were killed. Indonesia’s National Commission on Human Rights was tasked with conducting an investigation into this period within its limited mandate, but it led to nothing; there have never been any prosecutions relating to these crimes.

The election promise of the current president was to deal with a number of these past human rights cases, and this promise has not been met at all. His opponent in 2014, Prabowo Subianto, was a former military general involved in alleged past human rights abuses, so it was politically expedient to make such a promise. But it has not been pursued in office.

In 2000, Indonesia established its own Human Rights Court. What is your assessment of its record?

Some human rights activists suggested that the establishment of the Human Rights Court took place under international pressure following the independence of East Timor. To avoid international scrutiny, for example the creation of an ad hoc international tribunal, the government established this court.

Based on the report of the International Commission of Inquiry on East Timor in 2000, it was indeed recommended that an international human rights tribunal be set up. Indonesian government rejected the proposal with strong assurances that it would provide justice for atrocities committed by its nationals. So it is fair for some to see the establishment of Indonesia’s Human Rights Court as a political move by the government at that time, in order to avoid scrutiny by the international community.

When it comes to performance, the Human Rights Court actually investigated and prosecuted cases relating to atrocities in East Timor. There were around 100 suspects identified, and 18 were put on trial. Out of these 18, only one trial, of Eurico Guterres, ended in a conviction for crimes against humanity. However, the Indonesian Supreme Court cleared Guterres of all charges in 2008. So the Human Rights Court did take steps, but the net result amounted to essentially nothing. Impunity remains.

So it has not lived up to its mandate, but there is another factor, which is that the founding law of the Human Rights Court does not accommodate international standards of criminal justice. It only covers two of the four categories of crime as outlined in the Rome Statute – crimes against humanity and genocide. It also does not provide adequate protection for victims and witnesses. So there are issues not only with the performance of the Human Rights Court but also with the legislation establishing it.

Why hasn’t Indonesia become a party to the Rome Statute to join the ICC?

The main opposition came from the military, because they were afraid of being targeted by the ICC. There was also a lot of discussion about Indonesia’s ‘sovereign right to prosecute’.

But what those opposing failed to understand is that the ICC is bound by temporal and territorial boundaries, meaning that it will not intervene if the state in question is able and willing to prosecute. So I think accession to the Rome Statute has not taken place because of this misunderstanding.

I think another factor since this was initially raised is there is a focus on other issues. Indonesia is an emerging country economically; there is a focus on building infrastructure. So many in government feel like they are done with the past. But for the millions of victims of past crimes and their families, the past is not done.

So it’s very important at this point in the country’s history to revisit the commitment to international criminal justice to be able to contribute to sustainable peace and development.

What steps could the Indonesian government take to improve how it handles these issues?

The establishment of the Human Rights Court was an important starting point, but clearly there has to be significant reform, both in terms of the substantive law underpinning it and its procedures.

Clearly the domestic laws need to be reformed, but also, an effort needs to be made to improve the courts capacity in terms of manpower and logistical support. This is why the government needs to restart the discussion about becoming a party to the Rome Statute. Through the outreach programme of the ICC, this would give the Human Rights Court the capacity, in terms of manpower and logistical support, to tackle past human rights violations in Indonesia, which the Human Rights Court is currently lacking.

Only if these two steps are taken – reforming the domestic Human Rights Court and restarting discussion about becoming a party to the Rome Statute – will the Indonesian government be able to say it has made progress on international criminal justice.

The Indonesian government is actually running for a seat on the UN Security Council for the period of 2019–20. So I think it is an urgent discussion that the Indonesian government needs to have before it makes another pledge to contribute to the maintenance of international peace and security. It is difficult to have sustainable peace without justice.

Millions of civilians suffer hunger and starvation in times of armed conflict. This panel discusses the legal prohibitions on the use of starvation as a method of war, and the obligations on the warring parties to allow access for humanitarian relief.

On 10 September, US National Security Advisor John Bolton used his first major speech since joining the White House to attack the International Criminal Court’s (ICC) potential investigation of American personnel in Afghanistan. The ‘American patriots’, as Bolton describes them, are being investigated for potential torture and ill-treatment of detainees, mostly in 2003 and 2004, during the United States-led invasion of the country.

Bolton has a long history of opposition to the ICC. Although the US signed the ICC Statute under president Bill Clinton, it was ‘unsigned’ by Bolton, then an under-secretary of state in the George W Bush administration.

And when the court first opened its doors in 2002, Bolton helped secure, in what he described on 10 September as one of his ‘proudest achievements’, around 100 bilateral agreements with other countries to prevent them from delivering US personnel to the ICC. Those agreements were often extracted under pressure, with the US threatening to cut off military and other aid to countries that refused to sign.

In recent years under the Obama administration, relations between the US and the ICC improved, and the US offered help and support to the court. Bolton’s attack is aimed at reversing those gains – with measures aimed directly at the court and its staff.

These include: (i) negotiating ‘even more binding, bilateral agreements to prohibit nations from surrendering US persons to the ICC’; (ii) banning ICC judges and prosecutors from entering the US, sanctioning their funds in the US financial system and prosecuting them in the US criminal courts (and doing the ‘same for any company or state that assists an ICC investigation of Americans’); and (iii) ‘taking note if any countries cooperate with ICC investigations of the United States and its allies, and remember[ing] that cooperation when setting US foreign assistance, military assistance and intelligence sharing levels’.

These are serious threats – they would potentially undermine the work of a court that is designed to prosecute the world’s worst crimes. The ICC prosecutor and its judges would be barred entry from the US to attend to vital work of the court.

Some of that work, ironically, is at the behest of the US. For instance, two of the UN Security Council’s referrals to the ICC, one in relation to atrocities committed in Sudan, the other in respect of the crimes committed by Muammar Gaddafi in Libya, were referred with US support. 

Also, the meetings of the ICC Assembly of States Parties are held each year at UN headquarters in New York. Those meetings may have to be held elsewhere if the ICC judges and staff are under threat of arrest.

In the case of the potential torture linked to operations in Afghanistan, the ICC has not been acting on its own initiative in investigating. For example, the Center for Constitutional Rights submitted ‘victim’s representations’ to the ICC on behalf of two of their clients, Sharqawi Al Hajj and Guled Hassan Duran, emphasizing the importance of an ICC investigation of US officials for serious crimes arising out of post-9/11 detention and interrogations.

According to the center, both Al Hajj and Duran were detained by the CIA in black sites or 'proxy-detention' by other countries, tormented and tortured.

Although the US is not a party to the ICC Statute, Afghanistan is, and therefore the court has jurisdiction over US nationals who allegedly committed atrocities in Afghanistan. And it should be noted that the investigation includes pursuing any atrocities committed by the Taliban and Afghan security forces during the same period.

So the basis for attacking the work of the ICC based on this is shaky, and Bolton’s threats raise a number of important international law questions going forward. 

For one, they may be unlawful retaliatory steps, given that the US has obligations to accord at least some privileges and immunities to judges and other personnel of the ICC under the 1947 UN Headquarters Agreement between the UN and US. Counter-measures might be considered by member states of the ICC, either alone, or collectively. 

In this regard, Bolton’s comments about the EU will not go unnoticed: he suggests Europe is a region where ‘the global governance dogma is strong’. The US may yet come to learn just how strong that ‘dogma’ is.

With US abstention from the ICC, the opening remains for Europe and other regions to position themselves at the heart of the international criminal justice regime, thereby – as in response to the US attitude towards climate change – building a network of partnerships with other like-minded nations to compensate for US disengagement.

Further, while the ICC has many critics, and could be improved as an institution, Bolton’s speech may have the effect of galvanizing support for the world’s first permanent international criminal court. That could be a good thing for the court, which is sorely in need of support for its work.

Whatever concerns states may have about the ICC, they may be outweighed by a mutual desire to stand up to perceived bullying by the Trump administration, in favour of the international rule of law. 

Summary

• Military operations are taking place with increasing frequency in densely populated areas. Such operations result in loss of life and harm to civilians, as well as damage to civilian objects, (including infrastructure providing essential services). In order to protect civilians, it is imperative that armed forces and groups comply with the rules of international humanitarian law on the conduct of hostilities, including the rule of proportionality.
• The rule of proportionality prohibits attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. This research paper analyses the key steps that belligerents must take to give effect to the rule, with a particular focus on one side of proportionality assessments – the expected incidental harm.
• Those undertaking proportionality assessments before or during an attack must consider whether the expected harm will be caused by the attack, and whether that harm could be expected (that is, was it reasonably foreseeable).
• For the purpose of proportionality assessments, injury to civilians includes disease, and there is no reason in principle to exclude mental harm, even though it is currently challenging to identify and quantify it. Damage to civilian objects includes damage to elements of the natural environment.
• Once the incidental harm to be considered has been identified, a value or weight must be assigned to it. This is then balanced against the value or weight of the military advantage anticipated from the attack to determine whether the harm would be excessive.
• In the determination of whether the expected incidental harm would be excessive compared to the anticipated military advantage, ‘excessive’ is a wide but not indeterminate standard.
• Belligerents should develop methodologies so that those planning and deciding attacks are provided with all necessary information on expected incidental harm, and to assist them in assigning weight to the incidental harm to be considered.
• If it becomes apparent that the rule of proportionality will be contravened, the attack in question must be cancelled or suspended.
• Clarification of the law is important in ensuring compliance with the rule of proportionality, but a culture of compliance within armed forces and groups, inculcated by their leaders, is also crucial.

This meeting, supported by the British Red Cross, is the first in a series of three to commemorate the 70th anniversary of the 1949 Geneva Conventions. The meeting will focus on the protection of the wounded and sick in armed conflict and will also include discussion of challenges to the protection of medical care and of health providers.

Attacks on health care personnel and facilities have increased in recent years, as have the instances in which proceedings have been brought against those providing medical care to wounded fighters, including under counter-terrorism measures.

The Geneva Conventions and their Protocols give protection to the wounded and sick and to healthcare providers, but is the law adequate? Is the law sufficiently widely known? How can the law be more fully implemented? What particular challenges arise in non-international armed conflicts?

This event will be followed by a drinks reception.