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.

PLEASE NOTE THIS EVENT IS BEING HELD IN GENEVA.

There have been large numbers of civilian deaths in the armed conflicts in Yemen and Syria. Is international humanitarian law being ignored? 

This meeting coincides with the launch of a Chatham House research paper on the incidental harm side of the proportionality assessment which belligerents are legally required to make. The panel at the meeting will consider the types of harm that fall within the scope of proportionality assessments, what constitutes ‘excessive’ harm and measures that belligerents can take to give effect to the rule on  proportionality.

This event will be followed by a reception.

The specific objectives were to:

• create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
• build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
• support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For China University of Political Science and Law, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The roundtable had a total of 22 participants, 10 Chinese (from universities and other academic institutions in Beijing and Shanghai) and 12 non-Chinese (from Australia, Germany, the Netherlands, Switzerland, the United Kingdom and the United States).

All discussions were held in English under the Chatham House Rule.

The specific objectives were to:

• create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
• build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
• support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting in Beijing was hosted by CUPL and involved 20 participants, 10 Chinese (from universities and other academic institutions in Beijing) and 10 non-Chinese (from Australia, the Netherlands, South Africa, Switzerland, the United Kingdom and the United States).

To ensure continuity while also expanding the experts network being built, the second meeting included a mix of participants from the first meeting and some new participants.

All discussions were held in English under the Chatham House Rule.

The specific objectives were to:

• create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
• build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
• support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting in Geneva was co-hosted by the Graduate Institute Geneva and involved 19 participants, 9 Chinese (from six research institutions in Beijing and Shanghai) and 11 non-Chinese (from eight research institutions in Australia, Germany, the Netherlands, Switzerland, the United Kingdom and the United States).

To ensure continuity while also expanding the expert network being built, the third meeting included a mix of participants from the first two meetings and some new participants

All discussions were held in English under the Chatham House Rule.

The specific objectives were to:

• create a platform for Chinese international law academics working on international human rights law issues to present their thinking and exchange ideas with counterparts from outside China;
• build stronger understanding within the wider international law community of intellectual debates taking place in China about the international human rights system and China's role within it;
• support networking between Chinese and non-Chinese academics working on international human rights and related areas of international law.

The roundtable forms part of a wider Chatham House project exploring China's impact on the international human rights system and was inspired by early discussions with a burgeoning community of Chinese academics thinking, writing (mainly in Chinese) and teaching about international human rights law.

For CUPL, one of the largest and most prestigious law schools in China and perhaps the only university in the world with an entire faculty of international law, the initiative is part of a drive to forge partnerships beyond China in the international law field.

The meeting was co-hosted with CUPL and involved 28 participants, consisting of 19 Chinese participants (from six leading research institutions in Beijing and Shanghai) and nine nonChinese participants (from eight leading research institutions in Australia, the Netherlands, the UK, Switzerland, Canada and Singapore).

To ensure continuity while also expanding the expert network being built, the fifth meeting included a mix of participants from the previous meetings and some new participants.

All discussions were held in English under the Chatham House Rule.

There have been large numbers of civilian deaths in the armed conflicts in Yemen and Syria. Is international humanitarian law being ignored?

This meeting marks the London launch of a Chatham House research paper on the incidental harm side of the proportionality assessment which belligerents are legally required to make. The panel at the meeting will consider the types of harm that fall within the scope of proportionality assessments, what constitutes ‘excessive’ harm and measures that belligerents can take to give effect to the rule on proportionality.

This event will be followed by a reception.

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.

There is growing attention to human rights in debates on economic inequality. In the UK, concerns about the disproportionate impact of economic policy on vulnerable groups have been raised recently by the UN special rapporteur on extreme poverty and human rights – who issued a statement criticizing the Conservative government’s austerity policies – as well as in a report from the UK government’s independent Equality and Human Rights Commission. These reports echo global concerns about fiscal policies, poverty and extreme economic inequality.

The Universal Declaration of Human Rights – which celebrates its 70th anniversary today – and the human rights treaties it inspired do not expressly address income and wealth gaps. But international human rights law is playing an increasing role in addressing economic polarization. Those concerned about inequality should consider how, especially over the past 25 years, the principles of socioeconomic rights have been clarified by courts and other human rights mechanisms. 

While the focus in the Global North has historically been on civil and political rights, such as the prohibition on torture or the right to fair trial, international human rights law does set out economic and social rights. For example, Article 23(4) of the Declaration – which is replicated in the International Covenant on Economic, Social and Cultural Rights and other treaties – calls for the right to collective bargaining in employment. Weakening protection in this area has been raised as a partial cause of the current escalation in income inequality. 

Human rights law also guarantees rights, including to education, healthcare and social security, that have redistributive potential and so have the potential to mitigate inequality.

Human rights law recognizes that fulfilment of economic and social rights, unlike civil and political rights, can be limited by the resources available to different states, and this conditionality – along with a lack of guidelines to assist with implementation and monitoring – has historically shielded fiscal policies from human rights scrutiny. However, attitudes have shifted.

For example, international human rights law has come to embody a commitment to tackling substantive inequalities which impair human dignity.  This requires the state regulate markets, and redistribute resources, in order to prevent discrimination against disadvantaged groups such as the poor. 

The UN Committee on Economic, Social and Cultural Rights and other human rights bodies assert that states have an immediate obligation, even during times of resource constraint, to ensure the fulfilment, without discrimination, of the minimum essential levels of socioeconomic rights, for example essential subsistence and basic shelter. Thus, austerity measures that scale back the enjoyment of rights may breach human rights standards. In order to justify such measures, governments need to first demonstrate they have considered ‘less restrictive’ avenues, including taxation options.

Although the application of human rights standards to economic policy is an emerging area, human rights campaigners have been successfully leveraging these protections to address the causes and consequences of the inequality crisis. 

For example, in case No. 66/2011 the European Committee of Social Rights overturned austerity measures that would have brought wages under the poverty level, citing breaches of labour rights and protections against discrimination. In Brazil, a coalition of civil society actors successfully used human rights standards to legitimize their critiques of a 2008 tax reform bill that would have given additional tax breaks to the wealthy while withdrawing resources for social services.

Beyond legal enforcement, framing concerns within the architecture of human rights can shift power to rights-bearers and move debates on tackling extreme inequality from the policy sphere into one where the state has a duty for which it is accountable. While the state bears primary responsibility for realizing human rights, non-state actors such as businesses have responsibilities to respect human rights. Thus, human rights can also help communities to recast the scope of the crisis to one of shared responsibility.

While human rights have seen many normative developments and advocacy successes since the adoption of the Universal Declaration of Human Rights, the last 70 years also offer several lessons and strategies to adopt going forward. 

As highlighted at a recent Chatham House event, the continued emphasis on civil and political rights in the discussion about human rights is at odds with the lived experience of individuals and communities worldwide, who may not feel their economic and material concerns are reflected in campaigns for human rights.

There will need to be a greater emphasis on adapting messaging to be more inclusive and to build alliances between disparate groups. Human rights analysis will also need to move beyond documenting the impact of systemic issues towards tackling root causes and creating a positive vision for economic inclusion and governance.

The idea that trade agreements should be subject to human rights impact assessment has been gathering momentum in recent years. This idea springs from concern – particularly on the part of trade unions and civil society organizations – that states are not presently doing enough to anticipate and address the human rights-related issues that arise from their trading arrangements with other countries.

This meeting will coincide with the launch of a research paper on human rights impact assessment by Dr Jennifer Zerk. It will bring together experts from law, trade policy, human rights impact assessment practice and civil society to take stock of progress so far and consider the future prospects for human rights impact assessment as a risk-analysis and policymaking tool in the trade context.  

The meeting will explore the key risks and benefits of the human rights impact assessment of trade agreements. What legal, political and practical challenges have been encountered so far? In what ways could communication, stakeholder consultation and follow-up of findings be improved? And what is needed to build political and stakeholder support for these kinds of processes?  

This meeting will be followed by a reception. 

China’s involvement in UN peacekeeping contributions has been on the rise for some time. China is also stepping up its own military and security operations abroad to protect its commercial and strategic interests, particularly in Africa. In doing so, China is exposing itself to a more complex set of issues – including international legal issues – with which it is only just starting to grapple.

China’s contribution to UN peacekeeping over the last 10 years has expanded dramatically. In September 2016, it pledged $1 billion to help fund UN peace, security and development activities, while in 2018 it supplied 10.3 per cent of the UN peacekeeping budget, up from 3.93 per cent in 2012. China is also the largest contributor of peacekeeping forces among the five permanent members of the Security Council. As well as its regular troop contributions, it has also established a stand-by rapid deployment force of 8,000 peacekeeping troops.

For China, increased involvement in UN peacekeeping offers what it likes to refer to as a ‘win-win’ situation. China’s contribution is very valuable at a time when peacekeeping is in need of resources, given the cutbacks from the other four permanent members of the Security Council in both financial and personnel contributions, waning US support for the UN and pressures on the UN budget.

China’s increased involvement in UN peacekeeping has coincided with the adoption of a more pragmatic position in relation to its traditionally staunch adherence to the principles of state sovereignty and non-intervention.

China was initially sceptical of the UN’s Responsibility to Protect (R2P) doctrine, endorsed by member states in 2005, which seeks to protect populations from gross human rights violations, and which can include recourse to use of force by the international community, if authorized by the Security Council under Chapter VII of the UN Charter. Over time, though, Beijing has softened its stance to intervention and has gradually acknowledged the ability to respond to humanitarian catastrophes in certain circumstances, for example voting in favour of the Intervention Brigade in the Democratic Republic of the Congo in 2013. 

The softening of China’s stance on non-intervention is also evident in the significant rise not only in the involvement of Chinese troops in UN peacekeeping, but also in the deployment of Chinese military and security forces in a number of African states in order to protect China’s investment and infrastructure projects located there.

In 2017, China established its first foreign naval base in Djibouti, and in 2018 it held military drills in several African countries. The significant increase in China’s military presence in Africa since 2015 gives rise to a number of more complex issues for both China and the local communities involved. According to a recent report, China’s growing military and security presence in Africa is leading to concern in some local constituencies. The fact that China’s state-centric perception of security and development downplays the importance of human rights is likely to compound these tensions on the ground.

New international law implications

The growing presence of Chinese peacekeeping, police and security forces abroad also carries implications for China in a number of different areas of international law with which it has only recently started to grapple. These include the law on the use of force and, given that many Chinese infrastructure projects are situated in fragile states, the law of armed conflict.

The mushrooming presence of Chinese companies and investments abroad also carries implications for the Chinese state, and for the companies concerned, under international human rights law (particularly the UN Guiding Principles on Business and Human Rights). The international law on state responsibility could also be relevant if security companies owned or employed by the Chinese government, where their actions are attributable to China, become complicit in breaches of international law by other governments (such as human rights abuses).

Compared to other areas of international law, such as international economic law and the law of the sea, China has not invested much to date in education in these areas, which may leave it exposed as it increases its global footprint. It was clear from a recent Chatham House roundtable at Columbia Law School in New York that China is now seeking to rapidly upskill in these areas.

China’s global economic and security ambitions appear to be tilting China towards a more interventionist approach, which is extending beyond UN peacekeeping contributions towards security and military missions of its own. Time will tell how China will respond to the challenge of burnishing its image as a good global citizen while maintaining an approach to peacekeeping, security and development which is closely informed by its own economic and security interests.

Summary

• Although sieges may conjure up images of medieval warfare, they are still used by armed forces today, in international and non-international armed conflicts.
• International law does not define sieges, but their essence is the isolation of enemy forces from reinforcements and supplies. Sieges typically combine two elements: ‘encirclement’ of an area for the purpose of isolating it, and bombardment.
• Questions of the compatibility of sieges with modern rules of international humanitarian law (IHL) arise when besieged areas contain civilians as well as enemy forces.
• Sieges are not prohibited as such by either IHL or other areas of public international law.
• Three sets of rules of IHL are relevant to sieges. The first comprises the rules regulating the conduct of hostilities. The second is the prohibition of starvation of civilians as a method of warfare, along with the rules regulating humanitarian relief operations. The third comprises the rules on evacuation of civilians.
• The application of IHL to sieges is unsettled in some respects. This briefing does not purport to resolve all the difficulties or address all the issues in detail.
• While it may go too far to say that it is now impossible to conduct a siege that complies with IHL, the significant vulnerability of civilians caught up in sieges puts particular emphasis on the need for both besieging and besieged forces to comply scrupulously with the legal provisions for the protection of civilians and to conclude agreements for their evacuation.