Indonesia's security policy

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.