Ratification of ICC won't threaten RI sovereignty
Ratification of ICC won't threaten RI sovereignty
Ridarson Galingging, Jakarta
Indonesian Minister of Justice and Human Rights Yusril Ihza
Mahendra has raised fears that if Indonesia ratifies the Rome
Statute on the International Criminal Court (ICC), then ICC
prosecutors will have wide powers in Indonesia to initiate
investigations and prosecutions of crimes against humanity,
genocide and war crimes.
However, there is no reasonable basis for Yusril's concern
that ratification will threaten Indonesian sovereignty.
There are very limited circumstances under which an ICC
prosecutor can enter a contracting state like Indonesia and
investigate and prosecute ICC crimes.
The "complementarity principle" under the ICC statute ensures
that Indonesia always has the primary right and responsibility to
handle all major human rights violations. The ICC prosecutor can
only become involved as a "complement" to Indonesia's legal
system if that legal system fails to uphold international
standards of human rights.
If a horrible violation of human rights occurs in Aceh, for
example, it is Indonesia's police, prosecutors and courts that
have the responsibility to investigate the violation and pursue
justice according to the law.
If the police and prosecutors do not conduct an investigation,
if they fail to prosecute or if the trial is a sham, only then is
the door open for an ICC prosecutor to become involved in the
case.
In other words, the ICC statute is a "backup" that is relevant
only if Indonesia's system fails to produce justice. This is not
a threat to sovereignty. It is a kind of "insurance policy"
supporting basic human rights.
Ratifying the ICC keeps primary control and sovereignty in the
hands of Indonesians, where it belongs. But it also provides
Indonesians with a useful "complement" when powerful domestic
political figures protect gross violators of human rights.
If anyone should be concerned about ratifying the ICC, it
should be future mass murderers and torturers, not ordinary
Indonesians.
It is inappropriate to use nationalistic arguments about
sovereignty to protect future violators of human rights from
having to face an ICC prosecutor if Indonesia's own domestic
legal system is too corrupt or weak to reach an outcome based on
law and justice.
There are many other safeguards built into the ICC statute
that ensure Indonesian sovereignty will not be threatened.
Minister Yusril also raised concern that an ICC prosecutor
could initiate an investigation based solely on information he or
she received from sources other than state parties or the UN
Security Council, known as an investigation proprio motu.
It is true that an ICC prosecutor can receive information and
evidence relating to a gross violation of human rights from any
reliable source, including NGOs. But a prosecutor must get
authorization from the Court Pre-Trial Chamber before starting
any legal actions against a defendant.
The Pre-Trial Chamber is a control mechanism within the ICC to
ensure that proprio motu investigations conducted by an ICC
prosecutor will not be used for political purposes and that they
meet all ICC requirements.
A member state such as Indonesia has an opportunity to provide
evidence to the Pre-Trial Chamber to reject an investigation.
The Indonesian government could also submit evidence that the
case was being seriously investigated by domestic authorities or
had been tried fairly and fully.
The important point is that proper procedures and institutions
like the Pre-Trial Chamber exist to protect state sovereignty
from improper threats motivated by overzealous prosecutors or
politics, rather than by genuine violations of human rights that
have gone unpunished.
Another safeguard concerns nonretroactivity. The ICC treaty
applies only to crimes committed after July 1, 2002, or after the
date of accession by the state concerned.
This means that past and current political and military
leaders do not need to worry about possible ICC actions if
Indonesia ratifies the Rome Treaty in the near future. Crimes
committed during the New Order period, for example, cannot be
raised at all.
It is only future violators of human rights that need to be
concerned, and then only if Indonesia's own legal system fails
miserably to deliver justice.
There are no grounds for fear in signing the ICC statute. On
the contrary, there are several positive reasons why the
Indonesian government should move quickly to ratify the treaty.
Indonesia's legal system is in a transition from defending
violators of human rights to prosecuting them. The faster the
country makes progress in that direction, the better. Ratifying
the ICC treaty moves us faster along that path while maintaining
our national sovereignty.
Recent disappointing court decisions in key human rights cases
ranging from East Timor to Tanjung Priok suggest that Indonesia
needs the additional pressure the ICC statute provides.
If Indonesia's progress in upholding basic human rights slows
down or stops, the ICC statutes offer Indonesia's citizens
important international protections against future gross
violators of human rights.
It is unacceptable for government officials in this era of
democratization and reformasi to argue against such protections
for the Indonesian people without valid grounds for doing so.
Indonesians should not feel embarrassed to ratify a treaty
that, in effect, provides international "supervision" over
domestic legal institutions that sometimes fail to produce
justice. Even developed countries like the UK and France have
ratified the ICC treaty and are willing to accept an
international role if their own domestic legal systems fail.
The writer is a lecturer in International Law and Human Rights
at Yarsi University in Jakarta, and is currently studying for his
SJD degree at Northwestern University School of Law in Chicago.