papers and articles written by AGUNG YUDHAWIRANATA for academic and seminar purposes.
INDONESIA: TOWARDS RATIFICATION OF THE ROME STATUTE ON THE ICC
Intro
At the current stage of having 99 ratification of the Rome Statute, and having the International Criminal Court (ICC) at the “ready to exercise its jurisdiction” level, the key measures to apply law and protect human rights around the world are within reach. Accordingly, to neglect ratification of the ICC would send a negative message to the international community, precisely when it is the moment to capitalize on the progress made in this direction so far. However, Lack of information about the ICC and the Rome Statute is often at the core of a lack of support. At the same time, the complexity of the Rome Statute of the ICC, and the constitutional and other legal issues it raises, can create potential barriers to ratification even when the concept of the ICC is understood and supported. For example, some governments of States find that the jurisdiction of the ICC affects the conditions for exercise of national sovereignty, particularly those States in Asia including Indonesia.
This is resulted not only from the lack of political will from the governments or because of the unique social, political, and cultural conditions, differs among States in Asia that caused in the problem of synchronizing the domestic legal system and administration to one of the ICC. Another major obstacles also lie on the lack of knowledge related to the ICC among the State apparatus, and also the lack of systematic efforts in campaigning the ratification of ICC within one State, namely Indonesia.
Instrumental Progress
Up to date, there are no significant efforts, particularly from the State, to prepare the infrastructure in its bureaucracy and administration to support the ratification of the Rome Statute in the very near future. There is a President Regulation on National Action Plan of Human Rights 2004-2009 (Keppres no.40/2004) where the ratification of the Rome Statute is not considered as priority program hence it placed in the list of instruments to be ratified in 2008. There is no details whatsoever related to the preparation of the ratification.
As implicitly recognized in the Law of Human Rights Court no.26/2000, Indonesia has adopted in its legal system some of criminal conducts that have often been regarded as international crimes. These crimes that are generally mentioned as gross violations of human rights consist of genocide and crimes against humanity where some of provisions related to four kind of crimes which have formulated in the Rome Statute of ICC.
However, because of the fact that Indonesia is not still yet a State Party of the Rome Statute, there is no obligation to prosecute those crimes internationally or submit the perpetrators as international criminals. Otherwise, Indonesia is likely treat them in domestic ways and prevents the perpetrators committed those crimes to be prosecuted under international jurisdiction. It is still debatable issue on whether Indonesia should be the party of ICC or does not ever ratify the Rome Statute.
The Rome Statute has its jurisdiction to the most serious crimes, as mentioned earlier. Comparing to it, Indonesian Law of Human Rights Court also has its jurisdiction for the crime of genocide and crimes against humanity, both are actually adopted from the Rome Statute provisions. In spite of some differences between Indonesian Law of Human Rights Court and International Criminal Court based on the Rome Statute, in fact, both of them have been established on the same area of judicial authority to prosecute alleged perpetrators of gross violation of human rights. The first is in national and domestic jurisdiction; the other is in international and universal one.
Given the above facts, and taking into account the principle of complementarity of ICC that appears to give a more central role to national courts, (i.e. according to the Treaty, the presumptive fora for trial of international crimes are the national courts. National courts will always have jurisdiction. Under the principle of "complementarity", the International Criminal Court will act only when national courts are unable or unwilling), the concerns that ratifying the ICC will only resulted in giving up the national sovereignty should not be existed.
General Situation of Campaign for Ratification
In above context, is where the Institute for Policy Research and Advocacy (ELSAM), as one of the main policy research and advocacy NGO in Indonesia, find it necessary to start a program to urge the Indonesian government to ratify the ICC as soon as possible, and to educate both public and State apparatus and parliamentarians about the importance of ratification of ICC by disseminating information regarding the ICC. The program is also aimed to create public awareness on the existence and work of International Criminal Court (ICC) as a remedy mechanism for human rights violations. The focus of work of this program is the ratification of the Rome Statute. General expected benefits to be gain through this program is the widespread support from various level of community and as geographic wide as possible to the campaign for the ratification of the Rome Statute; Secondly, that people at least have awareness that human rights violations are to be accountable, with great involvement of society in the implementation of the State policy regarding such matter.
In order to aim for the success of the campaign on ratification of the Rome Statute, of course full support from the society, particularly politicians and bureaucrats, legal academics, NGO activist, human rights defenders, and students is needed. Therefore a strategic and infrastructure preparation where they are involve actively in has to be done in order to support the campaign on ratification of the Rome Statute. It is considered that books publication is one of the most effective way to educate either public, academics, State apparatus, or even parliamentarians about the importance of ratification of ICC by disseminating information regarding the ICC. Meanwhile, literatures on international criminal laws are also still considerably rare provided in the school of laws throughout Indonesia. By publishing such books, particularly those consist of information regarding the ICC, it can be used as reading materials for related subjects at the universities. Some of the NGOs and academics also already start to introduce the ICC through seminars and focus groups discussions, but merely to the relatively limited audience. Mostly for students in the Law faculties and for human rights NGOs activists. More public audience is yet to be reached.
It should be noted that the ICC has also been a discourse among the society of victims and relatives of victims of human rights violation. The have been put the ICC high in their hope as the national justice system has been so disappointing. Indonesia has already had Military Court, Criminal Court and Human Rights Court, but cases of human rights violations handled by those courts have been ended in complete disappointment. Without sufficient understanding on internal justice system, the victims and relatives of victims of human rights violation who day-to-day waiting for uncertainty of the fate of their cases and their loved ones are expecting that international justice systems will soon help them delivering justice. One of the international justice systems expected is the newly enforced International Criminal Court or the ICC. On the one hand, it is clearly mentioned in the ICC that their jurisdiction is non-retroactive, meaning that cases happened before July 1, 2002 can not be brought to the ICC. Considering such situation, IKOHI (Indonesian Association of Families of the Disappeared) as the organization of victims and relatives of victims of human rights violation, especially on the case of involuntary disappearances sees that it is important to run program for socializing and introducing the ICC, as well as campaigning for the ratification of the Rome Statute on ICC by the Indonesian Government.
Closing: Challenges
However, the following challenge / risks should be acknowledged: from the point of view of the society, the upcoming trend is the fact that people has become more pragmatic due to sustained economic crisis and political stagnancy. This condition within the society is making it harder to build sympathy, supportive action and collaboration to criticize what has happened in various region of Indonesia and to be aware on human rights related issue or discourse. Adding to that, the lack of support from the State’s institutions on the efforts to demand accountability on the serious human rights violations will still be the major concern in the upcoming years. Accordingly, NGOs and academics should also concentrate on giving both inputs and criticisms to the State’s institutions, which are directly responsible for the enactment of the human rights and to the institutions, because of its authority, have implications on the protection and promotion of the human rights in Indonesia in general.
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Agung Yudhawiranata
Born in Bandung, Indonesia, on 12 July 1976. Holding a Bachelor's degree in Politics (S.IP) from Gadjah Mada University of Yogyakarta majoring in International Relations, and a Master's degree in Laws (LL.M) from the University of Hong Kong, majoring in International Human Rights Laws.
Currently working as a program coordinator at the Institute for Policy Research and Advocacy (ELSAM).
Also known a freelance researcher and a poet.
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