Indonesia's security policy

Agung Yudhawiranata, Jakarta

Indonesia is still considering ratifying the Rome Statute of the International Criminal Court, which was agreed upon by 120 countries in July 1998, including Indonesia.

The adoption of the Rome Statute was a historic event and is commemorated through the International Day of Justice. The treaty creates the first-ever permanent international criminal court, independent and impartial, and able to hold individuals personally accountable for the commission of the most serious international crimes.

Unlike the International Court of Justice -- known as the World Court -- the International Criminal Court (ICC) will not hear cases between nation states, but rather will try individuals who are accused of the most serious crimes under international law, namely genocide, crimes against humanity and war crimes.

The ICC will provide redress to victims and survivors of these crimes and may, over time, prove to be a powerful deterrent to the commission of these crimes. The ICC will extend the rule of law internationally, impelling national systems to investigate and prosecute these crimes themselves -- thus strengthening those systems -- while ensuring that where they fail, an international court is ready to act.

The attainment of the Rome Statute, with the power to investigate and prosecute those who commit genocide, crimes against humanity and war crimes, indeed represents a significant achievement for the world community. What is needed now is the political will to move forward -- to ratify then implement the provision of the Rome Statute, an historical watershed in the fight to end impunity long enjoyed by the perpetrators of heinous crimes.

At the current stage of having 99 ratifications of the Rome Statute, and having the 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 on the ICC and the Rome Statute is often at the core of 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 find the jurisdiction of the ICC affects the conditions for exercise of national sovereignty, particularly those states in Asia, including Indonesia. Whether Indonesia should be a party to the ICC remains a debatable issue as it has not ratified the Rome Statute.

This has resulted not only from the government's lack of political will but also from the unique social, political and cultural conditions that differ among countries in Asia, causing a problem in synchronizing the domestic legal system and administration with the ICC's. Another major obstacle lies in the lack of knowledge related to the ICC among the state apparatus, and also the lack of systematic efforts to campaign for the ratification of the ICC within one state, namely Indonesia.

To date, the state has made no significant efforts to prepare the infrastructure in its bureaucracy and administration to support the ratification of the Rome Statute. There is Presidential Decree No. 40/2004 on the National Action Plan on Human Rights, where the ratification of the Rome Statute is not considered a priority program given the fact that it placed on a list of instruments to be ratified in 2008.

As implicitly recognized in Law No. 26/2000 on the Human Rights Court, Indonesia has adopted in its legal system some criminal conducts that have been regarded as international crimes. These crimes, which are generally called gross violations of human rights, consist of genocide and crimes against humanity where some of the provisions relate to four kinds of crimes that have been formulated in the Rome Statute of the ICC.

However, because of the fact that Indonesia is still not yet a state party to the Rome Statute, there is no obligation to prosecute those crimes internationally or submit the perpetrators as international criminals.

The Rome Statute has the most serious crimes within its jurisdiction, as mentioned earlier. Compared to it, the Indonesian Human Rights Court has the crime of genocide and crimes against humanity within its jurisdiction, both are actually adopted from Rome Statute provisions.

In spite of some differences between the Indonesian Human Rights Court and the International Criminal Court based on the Rome Statute, in fact, both of them have been established in the same area of judicial authority to prosecute alleged perpetrators of human rights violations. The first is in national and domestic jurisdiction; the other is in an international and universal one.

Given the above facts, and taking into account the ICC's principle of complementarity, which appears to give a more central role to national courts -- i.e. according to the treaty, the presumptive fora for trials 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, concerns that the ratification of the ICC means our national sovereignty is in danger are most exaggerated.

The writer is an international relations researcher at the Institute for Policy Research and Advocacy (ESAM), a Jakarta- based rights group. He can be reached by e-mail at agung@elsam.or.id.