Ratification of ICC won't threaten RI sovereignty<\/p>\n
Ridarson Galingging, Jakarta<\/p>\n
Indonesian Minister of Justice and Human Rights Yusril Ihza
\nMahendra has raised fears that if Indonesia ratifies the Rome
\nStatute on the International Criminal Court (ICC), then ICC
\nprosecutors will have wide powers in Indonesia to initiate
\ninvestigations and prosecutions of crimes against humanity,
\ngenocide and war crimes.<\/p>\n
However, there is no reasonable basis for Yusril's concern
\nthat ratification will threaten Indonesian sovereignty.<\/p>\n
There are very limited circumstances under which an ICC
\nprosecutor can enter a contracting state like Indonesia and
\ninvestigate and prosecute ICC crimes.<\/p>\n
The "complementarity principle" under the ICC statute ensures
\nthat Indonesia always has the primary right and responsibility to
\nhandle all major human rights violations. The ICC prosecutor can
\nonly become involved as a "complement" to Indonesia's legal
\nsystem if that legal system fails to uphold international
\nstandards of human rights.<\/p>\n
If a horrible violation of human rights occurs in Aceh, for
\nexample, it is Indonesia's police, prosecutors and courts that
\nhave the responsibility to investigate the violation and pursue
\njustice according to the law.<\/p>\n
If the police and prosecutors do not conduct an investigation,
\nif they fail to prosecute or if the trial is a sham, only then is
\nthe door open for an ICC prosecutor to become involved in the
\ncase.<\/p>\n
In other words, the ICC statute is a "backup" that is relevant
\nonly if Indonesia's system fails to produce justice. This is not
\na threat to sovereignty. It is a kind of "insurance policy"
\nsupporting basic human rights.<\/p>\n
Ratifying the ICC keeps primary control and sovereignty in the
\nhands of Indonesians, where it belongs. But it also provides
\nIndonesians with a useful "complement" when powerful domestic
\npolitical figures protect gross violators of human rights.<\/p>\n
If anyone should be concerned about ratifying the ICC, it
\nshould be future mass murderers and torturers, not ordinary
\nIndonesians.<\/p>\n
It is inappropriate to use nationalistic arguments about
\nsovereignty to protect future violators of human rights from
\nhaving to face an ICC prosecutor if Indonesia's own domestic
\nlegal system is too corrupt or weak to reach an outcome based on
\nlaw and justice.<\/p>\n
There are many other safeguards built into the ICC statute
\nthat ensure Indonesian sovereignty will not be threatened.<\/p>\n
Minister Yusril also raised concern that an ICC prosecutor
\ncould initiate an investigation based solely on information he or
\nshe received from sources other than state parties or the UN
\nSecurity Council, known as an investigation proprio motu.<\/p>\n
It is true that an ICC prosecutor can receive information and
\nevidence relating to a gross violation of human rights from any
\nreliable source, including NGOs. But a prosecutor must get
\nauthorization from the Court Pre-Trial Chamber before starting
\nany legal actions against a defendant.<\/p>\n
The Pre-Trial Chamber is a control mechanism within the ICC to
\nensure that proprio motu investigations conducted by an ICC
\nprosecutor will not be used for political purposes and that they
\nmeet all ICC requirements.<\/p>\n
A member state such as Indonesia has an opportunity to provide
\nevidence to the Pre-Trial Chamber to reject an investigation.
\nThe Indonesian government could also submit evidence that the
\ncase was being seriously investigated by domestic authorities or
\nhad been tried fairly and fully.<\/p>\n
The important point is that proper procedures and institutions
\nlike the Pre-Trial Chamber exist to protect state sovereignty
\nfrom improper threats motivated by overzealous prosecutors or
\npolitics, rather than by genuine violations of human rights that
\nhave gone unpunished.<\/p>\n
Another safeguard concerns nonretroactivity. The ICC treaty
\napplies only to crimes committed after July 1, 2002, or after the
\ndate of accession by the state concerned.<\/p>\n
This means that past and current political and military
\nleaders do not need to worry about possible ICC actions if
\nIndonesia ratifies the Rome Treaty in the near future. Crimes
\ncommitted during the New Order period, for example, cannot be
\nraised at all.<\/p>\n
It is only future violators of human rights that need to be
\nconcerned, and then only if Indonesia's own legal system fails
\nmiserably to deliver justice.<\/p>\n
There are no grounds for fear in signing the ICC statute. On
\nthe contrary, there are several positive reasons why the
\nIndonesian government should move quickly to ratify the treaty.<\/p>\n
Indonesia's legal system is in a transition from defending
\nviolators of human rights to prosecuting them. The faster the
\ncountry makes progress in that direction, the better. Ratifying
\nthe ICC treaty moves us faster along that path while maintaining
\nour national sovereignty.<\/p>\n
Recent disappointing court decisions in key human rights cases
\nranging from East Timor to Tanjung Priok suggest that Indonesia
\nneeds the additional pressure the ICC statute provides.<\/p>\n
If Indonesia's progress in upholding basic human rights slows
\ndown or stops, the ICC statutes offer Indonesia's citizens
\nimportant international protections against future gross
\nviolators of human rights.<\/p>\n
It is unacceptable for government officials in this era of
\ndemocratization and reformasi to argue against such protections
\nfor the Indonesian people without valid grounds for doing so.<\/p>\n
Indonesians should not feel embarrassed to ratify a treaty
\nthat, in effect, provides international "supervision" over
\ndomestic legal institutions that sometimes fail to produce
\njustice. Even developed countries like the UK and France have
\nratified the ICC treaty and are willing to accept an
\ninternational role if their own domestic legal systems fail.<\/p>\n
The writer is a lecturer in International Law and Human Rights
\nat Yarsi University in Jakarta, and is currently studying for his
\nSJD degree at Northwestern University School of Law in Chicago.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/ratification-of-icc-wont-threaten-ri-sovereignty-1447893297",
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"sponsor": "Okusi Associates",
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