Monday, June 30, 2014

Ratifying the Rome Statute: Almost There and Back Again

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Andin Aditya Rahman[1]
Intentions and commitments remain to be mere polite gestures as the Indonesian government continues to deny the jurisdiction of the International Criminal Court (“ICC”) by maintaining persistent delays in ratifying the Rome Statute of the International Criminal Court (“Rome Statute”).
This is evident in the intentional consecutive inclusions of the Rome Statute in the National Action Plan for Human Rights, namely under Presidential Decree No. 40 of 2004on the 2004 – 2009 Human Rights National Action Plan, and Presidential Regulation No. 23 of 2011on the 2011 – 2014 Human Rights National Action Plan (“2011 – 2014 Action Plan”).The inclusion shows government position to retain their unwillingness to progress on ratifying the Rome Statute.
The sloth-like movement to ratify the Rome Statute was somewhat provided with an explanation when Purnomo Yusgiantoro, Minister of Defense, explicitly told the public his refusal to ratify the Rome Statute, arguing that Indonesia has legislative instruments in place, namely Law No. 39 of 1999on Human Rights (“Human Rights Law”), and Law No. 26 of 2000on Human Rights Courts (“Human Rights Courts Law”), that are sufficient in protecting human rights.[2] This view was similar to that of Hikmahanto Juwana, who also argued that the ratification of the Rome Statute is not necessary, as the Indonesian Human Rights Court system is sufficient.[3]
While government’s intention to  delay Rome Statute ratification remains opaque, Mr. Yusgiantoro’s statement reflects Indonesia’s lack of willingness to allow the ICC into the nation’s borders, which is more or less the same stance taken by the Indonesian delegates during the negotiation process of the Rome Statute (the Rome Conference). At the time, Indonesia, along with Iraq, Iran, and Libya asserted that they did not wish a world criminal court to be established at all.[4]
The reluctance is further apparent as the 2009 – 2014 Action Plan comes to a conclusion, where there has yet to be indications that the government will change its stance and promptly ratify the Rome Statute. The best that can be expected is the Rome Statute will be included into another plan; another mere gesture.
Other than reluctance, there are also indications of fear amongst Indonesian politicians that the Rome Statute could be abused to interfere with the country’s domestic politics.[5] Prime example of this issue is this year’s Presidential candidate, Prabowo Subianto, and his former boss, Wiranto –who stands in the opposition from Prabowo, who is also the General Chairman of Hanura Party.
Prabowo Subianto has been accused of organizing the kidnapping of student activists in 1997 and 1998 during his reign as commander of the Army’s Special Forces (Kopassus) and orchestrating blood-bathed demonstrations in Jakarta after the downfall of Soeharto’s long-lived regime. Wiranto on the other hand was fixed with the command responsibility of thirty-three leaders for crimes against humanity after the referendum of East Timor in 1999.
From the above explanations, it is apparent that there are two prominent reasons deterring the ratification of the Rome Statute, namely:
1.       The ICC will replace the existing Human Rights Court system established by the Human Rights Courts Law, which is deemed to be sufficient in prosecuting human rights violators; and
2.       The ICC can arbitrarily intervene in domestic matters, and lawfully arrest Indonesian residents within days of the ratification of the Rome Statute.
National Frameworks are Sufficient
While most will criticize the material imperfections of the Human Rights Law and the Human Rights Courts Law, the most prominent defect in the Indonesian Human Rights Court system lies in its procedure to prosecute human rights violators, as Human Rights Courts adopt the same procedural rules that applies to ordinary criminal cases at District Courts, unless otherwise specified by the Human Rights Courts Law.[6]
At this point, it is expected of the Human Rights Courts Law to set out detailed procedures considering the extraordinary nature of human rights violations. However, it proves to be a major disappointment, as it provides little time for the adjudicating judges in rendering a decision (no later than 180 days after a case was registered).[7]
Even with its awesome power of retroactivity (Human Rights Courts prosecute human rights violations before the enactment of the Human Rights Courts Law), this procedural drawback almost defunct the Human Rights Court.
The defunctness is due to the requirement to acquire consent from the House of Representatives and the President, when prosecuting a retroactive human rights violation case. The foundational weakness of this system was correctly phrased by Bhatara Ibnu Reza, international law lecturer at Universitas Pelita Harapan, who stated that: “it is not correct if legal problems such as human rights violations are decided through a political process.”[8]
As a comparison for the Human Rights Court system, the Rome Statute provides for the ICC to specifically function to prosecute gross human rights violations, stipulating provisions on investigation and prosecution, trial proceedings, appeals and revisions, and enforcement of decisions.
Additionally, the ICC has its own Rules on Procedure and Evidence, which stipulate technical provisions for, amongst others:
1.       Initiation of investigation, and challenges and preliminary rulings of the ICC’s jurisdiction;
2.       Stages of proceedings, including evidence, disclosure, witnesses and victims, as well as time limits;
3.       Investigation and prosecution stages, such as the collection of evidence;
4.       Trial procedures;
5.       Penalties;
6.       Appeals and revisions; and
7.       Enforcement of decisions.
Besides the Rules on Procedure and Evidence, the ICC also has the so-called Elements of Crime, which provides guidelines for the interpretation and the application of crimes under the jurisdiction of the ICC (genocide, crimes against humanity, war crimes, and aggression).[9]
Poor Performance
A product cannot be considered as functional if it always fails to produce the expected results. During its entire history, the Human Rights Court system has been unsuccessful in proving its adequacy as it consistently fails to convict those suspected of gross human rights violations.
This is evident in the acquittal of eighteen suspects that were tried for the post-referendum bloodbath of East Timor in 1999, whether by the ad-hoc Human Rights Court or the Supreme Court. Those accused for the Tanjung Priok massacre in 1984 were also acquitted.[10]
Arbitrary Intervention in Domestic Matters
A wide-spread misunderstanding amongst the unknowledgeable, as well as the knowledgeable is that public international law, whatever the form, can arbitrarily interfere with the domestic matters of a country. Most do not know that the enforcement of a public international law, in most cases, requires consent. Such is applicable to almost every type of public international law, whether in the form of an agreement or establishing an international organization, and the ICC is no exception to this rule.
The ICC may only exercise jurisdiction upon a state if:[11]
1.       The accused is a citizen of a state party to the Rome Statute or a state that accepts the jurisdiction of the ICC over their nationals;
2.       The crime took place on the territory of a state party or a state that accepts the jurisdiction of the ICC into their territory; or
3.       The United Nations Security Council has referred a case to the prosecutor of the ICC, which will disregard issues regarding the nationality of the accused or the location of the crime.
Complementary Principle
The ICC is established as a permanent court based on the complementary principle, which essentially means that the ICC will not execute proceedings for a case that has been or is being investigated or prosecuted by another court, even though the ICC has jurisdiction over the case in question. The ICC will also refrain from prosecuting a case that is insufficient in gratify to justify further action.[12]
However, it should be noted that a case may be admissible to the ICC if:[13]
1.       The proceedings or the decision of the case was made to shield the accused;
2.       There has been an unfounded delay in the proceedings that is inconsistent with the intent to bring the accused to justice; or
3.       The proceedings were not or are not conducted independently or impartially.
In addition to the mentioned jurisdictional limit of the ICC, there is the non-retroactivity principle under the Rome Statute, which prohibits the ICC from commencing proceedings for cases before 1 July 2002 (when the Rome Statute came into force). For a country that acceded to the Rome Statute after 1 July 2002, the ICC may only exercise jurisdiction for cases after the entry into force of the Rome Statute for the said state.[14]
This is in contrast to the Human Rights Court system that can prosecute cases of gross human rights violations prior to the enactment of the Human Rights Courts Law, namely before 2000.
Hope on the Horizon?
It can be concluded that the concerns of those against ratifying the Rome Statute, as well as the general misconceptions of the government on this matter are unfounded. From the above elaborations, it can also be established that Indonesia will not ratify the Rome Statute in the near future.
Despite the generally gloomy outlook in ratifying the Rome Statute, there is still hope. Albert Hasibuan, presidential adviser, asserted in early 2013 that “Indonesia will soon ratify the Rome Statute.”[15]
Hope for ratifying the Rome Statute also exists in the House of Representatives as Trimedya Panjaitan, a senior lawmaker, stated that the opposition party supported the government’s efforts to expedite the ratification.[16] Aziz Syamsuddin, a deputy chairman of Commission III at the House, also declared his support for ratifying the Rome Statute as it “will strengthen our international law enforcement commitments.”[17]
The said statement of Mr. Syamsuddin in 2013 was, however in contrast with his view on the same subject-matter in 2011. In 2011, he affirmed that Indonesia already have in place the Human Rights Courts Law, and it is better to improve the existing rather than to ratify the Rome Statute. At the time, he asserted that state sovereignty is of greater importance than international relations.[18]
Indeed, this could be a case of changing one’s mind. But that is the major composition in Indonesia’s process in ratifying the Rome Statute: a series of changing one’s mind. When the political will amongst Indonesian officials and politicians appears to be within proximity of adopting the Rome Statute, the issue seems to mysteriously disappear and the backwards mentality almost immediately kicks back into gear. Government argument that harmonization of national laws and regulations need more time for reviews and assessments, and that foreign things are not of importance to Indonesia, seems to be used over and over again.
But, on the positive side, the world’s question concerning Indonesia’s progress in ratifying the Rome Statute can be provided with a very concise answer: almost there and back again.

[1] Andin Aditya Rahman is a graduate from the Faculty of Law of Universitas Airlangga, and currently works as a Legal Analyst at Hukumonline
[2] Markus Junianto Sihaloho, “Defense Minister Dodges Question on Blocking ICC Treaty’s Ratification,” Jakarta Globe, 21 May 2013
[3] Pirhot Nababan, Aurora Meliala, “Ongoing Debate on Rome Statute Ratification,” Hukumonline, 14 December 2011
[4] Geoffrey Robertson, “Crimes Against Humanity,” Third Edition (Camberwell: Penguin Australia), p. 421
[5] See: Margareth S. Aritonang, “Govt officially rejects Rome Statute,” Jakarta Post, 21 May 2013, and Devi Lumanow, “World Criminal Court on Agenda in Indonesia,” Jakarta Globe, 21 March 2013
[6] Human Rights Courts Law, Art. 10
[7] Human Rights Courts Law, Arts. 27 (2), and 31
[8] Pirhot Nababan, “Rome Statute Ratification is Urgent,” Hukumonline, 23 November 2011
[9] Rome Statute, Art. 9 (1)
[10] International Center for Transitional Justice (ICTJ), Komisi untuk Orang Hilang dan Korban Tindak Kekerasan (Kontras), “Derailed, Transitional Justice in Indonesia Since the Fall of Soeharto,” 2011, p. 4
[11] Rome Statute, Arts. 12, and 13
[12] Rome Statute, Art. 17 (1)
[13] Rome Statute, Art. 17 (2)
[14] Rome Statute, Art. 11
[15] Devi Lumanow, “World Criminal Court on Agenda in Indonesia,” Jakarta Globe, 21 March 2013
[16] Ibid
[17] Supra, n. 2
[18] Supra, n. 3

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