Overseas Think Tank for Indonesia

(Image Source: Asia Sentinel)

by Jennie S. Bev

Monday, 12 January 2009

Sometimes the Universal Declaration of Human Rights is observed in the breach

On December 10, the world commemorated the 60th year of the Universal Declaration of Human Rights. Joseph Saunders, the deputy program director of Human Rights Watch in New York, who lived in Indonesia for two and a half years in the 1990s, answered this question: Do human rights violators today face more intense pressure when they trample on rights than they did 60 years ago? The answer, he said, is a resounding yes.

However, Indonesia’s posture in terms of respect for and adherence to human rights principles needs to be examined critically, and, given the ominous attacks on minority religions over 2008, the country has to look critically at worsening intolerance on the part of hard-line fundamentalists.

Historically speaking, the human rights movement has come a long way and today it has become a strong feature of most of the world’s constitutions, observed or not. Also, many governments have created human rights ministries and signed international treaties as supported by the United Nations Human Rights Council and the UN Human Rights Commissioner for Human Rights. And the establishment of the International Criminal Court in The Hague, Netherlands is one great leap forward in protecting fundamental human rights.

In Indonesia, the Constitution Undang-Undang Dasar 1945 acknowledges at least 15 human rights principles: self-determination (Preamble and article 1), citizenship (article 26), equality before the law (article 27), work (article 27), decent life (article 27), association (article 28), express an opinion (article 28), religion (article 29), national defense (article 30), education (article 31), social welfare (article 33), social security (article 34), independent judiciary (elucidation of articles 24 and 25), preserve cultural traditions (elucidation of article 32), and preserve local language (elucidation of article 31).

Indonesia is also an elected member of United Nations Human Rights Council among 47 members of 63 contenders, of which other 12 Asian countries are Bangladesh, Bahrain, China, India, Japan, Jordan, Malaysia, Pakistan, Philippines, South Korea, Saudi Arabia and Sri Lanka. Thus it looks good on paper.

On April 11, 2002, The Rome Statute 1998 was ratified by 60 states which brought the International Criminal Court being. However, Indonesia has yet to ratify this statute, regardless of the current 56 ratifications and 62 signatures from other states. In 2004, President Susilo Bambang Yudhoyono adopted a National Plan of Action on Human Rights, which states that Indonesia intends to ratify the Rome Statute in 2008.

The International Criminal Court has been making significant progress in its five years of operation. It is the first permanent court mandated to prosecute the perpetrators of genocide, crimes against humanity, war crimes and “crime of aggression.” On crime of aggression, there will be no prosecutions until the states come into an agreeable definition. Saunders said it is expected that the first trial will get underway this year although the court has been under attack in recent months following the issuance of an arrest warrant for President Omar al-Bashir of Sudan on charges pertaining to genocide in Darfur.

While today we can see noteworthy progress in human rights adherence and protection, particularly after the overthrow of the strongman General Suharto in 1998, the pace of progress needs to be accelerated. One bit of significant progress was the prosecution for the poisoning murder of the human rights lawyer Munir Said Thalib, despite the justice system’s failure to prove the former Indonesian intelligence figure Muchdi Purwopranojo responsible for this high-profile assassination.

Other than that, impunity is still the nagging keyword. Conscientious people are still waiting anxiously to hear news on thorough investigations and prosecutions of the greatest massacre of the 20th century, which occurred in 1965-1966 in the name of “communist eradication” in which an estimated 500,000 people were killed in Indonesia without fair trials as well as the May 1998 riots in the wake of the Asian Financial crisis, the Semanggi Tragedy I and II in which university students were shot, the East Timor massacre and religious killings in Aceh.

Freedom of religion, also one of basic human rights acknowledged in the Indonesian constitution (article 29), seems to be a continuing concern requiring immediate attention. Last September, the unorthodox Muslim sect Ahmadiyah was banned in South Sumatra with a provincial decree. In June, Ahmadiyah followers were prohibited from expressing their religious activities publicly or face up to five years of imprisonment. Many Ahmadiyah mosques throughout Indonesia have been attacked and the followers intimidated physically.

Another Islamic sect Al-Qiyadah Al-Islamiyah has also been labeled “heretical” and its founder Abdul Salam was sentenced for four years in April 2008, under accusations of blasphemy. In July, a 20-year old Christian theology school was attacked in East Jakarta, forcing an involuntary closing. In January 2008, a Hindu temple in West Lombok was burnt down by a mob.

At this point, the Indonesian government leadership seem to be wearing their best tuxedos while smiling meaningfully to look good on paper and to make strong political statements that Indonesia is a country where human rights are guaranteed and respected. We, the people, must make sure that those are not killers’ smiles and torturers’ faux friendliness. The time to act is now. And it does not take a person of Munir’s caliber to be an activist or even a dissident.

Jennie S. Bev is an Indonesian-born author and columnist who contributes to the Jakarta Globe and Jakarta Post. She is a former law lecturer and composition adjunct professor. This article was previously published by Asia Sentinel (China).

Jennie S. Bev

Wednesday was the 60th anniversary of the United Nations Universal Declaration of Human Rights. We have come a long way from the first legal system, which was Hammurabi’s Code; to the universal concept of jus gentium; to the Magna Carta; to the first war crimes trial of a head of state, Charles I, in 1649; to the Declaration of Rights by H.G. Wells; to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on Dec. 9, 1948, as proposed by Raphael Lemkin; and eventually to the 1948 Universal Declaration of Human Rights.

As the result of ongoing human rights activism that has elevated its status to idealism and eventually to a worldwide ideology today, the International Criminal Court, established by the 1998 Rome Statute, serves as the only permanent court jurisdiction over four offenses: genocide, crimes against humanity, war crimes and the crime of aggression. The latter is yet to be defined by the states involved.

This permanent court eliminates the need for the United Nations to establish ad hoc tribunals, formerly known as International Tribunals. However, as of Nov. 26, 2008, Indonesia has yet to ratify the Rome Statute, despite 56 ratifications and 62 signatures from other states. During the Clinton administration, the United States signed the statute in 2000, only to have it nullified by George W. Bush in 2002. This means that both Indonesia and the United States are nonsupporters of the ICC and are outside its jurisdiction.

Still, this court is a breath of fresh air in a world filled with genocide and massacre.

For the ICC to prosecute all four offenses, it adopts basic principles of guilt which can be found in most advanced legal systems. Such principles are two-sided swords and include mens rea (intent with knowledge of likely consequences), being a natural person (individuals, not institutions) and being more than 18 years of age. The Rome Statute, however, does ease one basic principle as the result of the Nuremberg precedent, in the concept of “superior order.” This defines commanders of the military, paramilitary, police, government or other rank-and-file authorities as “responsible” individuals to be prosecuted.

Such principles, however, also have substantial loopholes. Under mens rea , for instance, it would be extremely difficult to prove Josef Stalin’s forced famine in Ukraine in 1932-33 as genocide. The 1948 Genocide Convention refers to the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Under the principle of a natural person, it would also be impossible to prosecute a particular regime, government or political party, such as Indonesia and Suharto for the 1965-1966 massacres under the guise of “communist eradication,” unless superior order could be proven beyond reasonable doubt. The over-18 principle would place Khmer Rouge and Sierra Leone child soldiers outside the court’s jurisdiction, regardless of their ranks. The May 1998 riots and Semanggi tragedies in Jakarta would be even more difficult to nail down as the puppeteers have yet to be identified.

It might be sickening to realize that it is beyond the ICC’s jurisdiction to try countries initiating attacks against other countries, or regimes ordering genocide against particular groups. It is even more nauseating to known that some states where individuals who allegedly committed crimes against humanity reside freely have not signed the Rome Statute.

Such a political strategy might not be acceptable by conscientious citizens of the world, but it is a bitter pill we must swallow for now. Indeed, it is an uphill battle but one that we all need to fight for. Even if it takes another 60 years.

Jennie S. Bev is an Indonesia-born columnist based in Northern California. She is a former law lecturer and a composition adjunct professor. She blogs at JennieSBev.Typepad.com. This article previously appeared in The Jakarta Globe.