Rights violations: Who is to blame?

This article by lawyer Todung Mulya Lubis is based on his presentation to the International Workshop on Crimes Against Humanity held by the National Commission on Human Rights from June 20 to June 21 in Jakarta.

JAKARTA: After World War II, war criminals were brought to trial before various courts, including the Nuremberg Tribunal. In one case a soldier tried to evade responsibility by saying that all the war crimes he committed involved him following his superiors' orders. The judges did not fully accept this reasoning given the evidence at hand. They stated the soldier had been proven guilty of committing the war crimes, ruling that he should have known whether his superior's order were reasonable or not.

Would a superior's order to shoot a sick man or to surrender a detainee make sense? Should an order to shoot women and children be executed? Based on the Geneva Conventions, such actions could be categorized as violations of human rights. In many provisions of the Geneva Conventions we find this sentence:

"Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria."

When the Nuremberg Trials were set up, the Geneva Convention was not established yet. However, the above judges had a legal and human rights logic similar to that of the creators of the Convention. It is the perception adhered to in present international law circles, and adopted in many international and national human rights conventions and laws.

The above description cannot be interpreted as absolving a commander of guilt for the crimes or violations committed by his soldiers in the field. In the literature of international law there is the term "commander's responsibility." A commander must be responsible for all crimes and violations that took place in the field as a result of his order or negligence.

This principle was used in the report of the Investigating Committee on Human Rights Violations in East Timor as the basis for incriminating a number of generals assigned to East Timor before and after the self-determination ballot took place there.

In many cases of human rights violations in Indonesia, military and police commanders have escaped liability, and field officers have been the ones that have shouldered the blame for failing to properly execute orders.

Court proceedings concerning military and police officers are subject to Law No. 31/1997 on military courts, which do not essentially adhere to the principle of "commander's responsibility". Field officers are therefore always culpable.

This is what happened in the trial of those implicated in the shooting of Trisakti students and the killing of the religious leader Tengku Bantaqiah in Aceh.

On Nov. 23, 2000, the government ratified Law No. 26/2000 on Human Rights which explicitly adopts the principle of "commander's responsibility".

Article 42 of Law No. 26/2000 provides that:

(1) A military commander, or a person effectively acting as a military commander, shall be responsible for any crimes that come within the jurisdiction of the Human Rights Court and which were committed by forces under his effective command and control, or effective authority and control as the case may be, as a result of his failure to exercise proper command over the forces, namely:

a. the military commander ... knew or under the circumstances at the time, should have known that the forces ... were committing serious human rights violations; and

b. the military commander ... did not take the proper and necessary action within his power to prevent or to halt the action or to deliver perpetrators to the authorities for investigation, examination and prosecution.

Article 42 of Law No. 26/2000 broadens the interpretation of "commander's responsibility" to include the police and other civilians. In the human rights violation cases in East Timor during the pre- and post-ballot period, governor and regents were also held responsible because of their active role or due to their negligence leading to violations by their subordinates.

The above principle also enables a militia commander to be held responsible. The principles concerning the liability of commanders and superiors other than those in the military are in line with those adopted in the Rome Statute of the International Criminal Court.

It is thus obvious that this liability applies to military, police and militia commanders, as well as civilians in positions of command. In Indonesia, where paramilitary militias have multiplied with many having links to political parties or regional movements such as in Aceh and Papua, the clause providing for the liability of military, police and militia commanders, and other civilian superiors must be underlined.

Law No. 26/2000 and the Rome Statute of the International Criminal Court thus provide a stronger legal basis for the human rights struggle in facing up to the many forms of organized human rights violations.

To strengthen this struggle, the government must ratify the Rome Statute of the International Criminal Court, which would enable cases of serious violations of human rights to be brought under international jurisdiction.

In the context of civil law, the concept of vicarious liability (including that of military commanders and superiors) has long been adopted, such as through the Civil Code which assigns civil liability to an employer for all legal offenses perpetrated by his or her employee. An owner of a vehicle, for example, would be held responsible for the damages caused by the driver as a result of a violation perpetrated by or the negligence of the driver. .

Article 1367 of the Civil Code reads, (1). "A person shall not only be responsible for loss occasioned by his own conduct, but also loss occasioned by persons under his care, or by items under his supervision."

(2) "Superiors and those who appoint other persons to represent their interests shall be liable for any losses caused by their servants or subordinates ..."

Thus, military practice, which has consistently blamed field officers, must be changed. As an embodiment of knighthood (ksatria) or the samurai in Japanese culture, every commander must be liable for any operational order, whatever the result.