Indonesia: A Review of the Indonesian Government's Obligation under International Human Rights Instruments in Regard to the Truth, Remedy and Justice of Gross Violations of Human Rights

Asia Human Rights
May 30, 2019
Reproduced with Permission
Asian Human Rights Commission


As a member of the United Nations (UN)2, Indonesia has ratified at least six major international human rights treaties3. Currently, Indonesia is a member of the UN Human Rights Council [HRC]4, therefore, it has obligations to increase the standard of human rights protection in its territory under the resolution of the UN General Assembly creating the Human Rights Council.5 This short paper will address the concern on the performance of the human rights obligations of the Indonesian's Government in accordance with international human rights law, regional human rights instruments and national law.

This paper argues, the Government has an obligation to set up standard of justice for various cases of gross violations of human rights, which occurred in the past and present. The Government does not have any reasons to delay and deny its obligations under international and national human rights laws.

In order to demonstrate the aforementioned views, this paper will discuss in Part I the Government's obligation under relevant international human rights treaties, regional human rights instruments and national human rights laws. In Addition, this part will describe the legal chance for Indonesia under the Rome Statute. Part II describes the Government's obligation in the framework of customary international law, in which the government has a duty to prosecute and cannot let the crimes goes unpunished. Part III provides conclusion that the Government obligates to ensure the prosecution against alleged perpetrators, and adequate remedy for victims.

I. The Relevant Obligations under Human Rights Treaties

A. International Treaties

Indonesia is a state party of the International Covenant on Civil and Political Rights (ICCPR)6 by the acceding to the Convention on 23 February 2006, which entered into force for Indonesia on May 23, 2006, three months after the date of the deposit7. The government has obligation under article 2 Paragraph 3 of the convention concerning effective remedy8. Indonesia, under article 1 of the Covenant made declaration related "self - determination."9 In order to emphasize state's obligation, the Human Rights Committee stated in its General Comment 31, that the Covenant is binding not merely on the executive branch of the government but also all government institutions in a state.

Indonesia has also adopted the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).11 Indonesia acceded to the Convention, on June 25, 1999, and under the Article 19 (2) the Convention entered into force for Indonesia on July 25, 1999, thirty days after the deposit of the instrument of accession.12 However, Indonesia also made a reservation related to article 22 of the Convention, in which Indonesia will not be bound to submit cases to the International Court of Justice.13

Indonesia is also a state party of the Convention on the Right of the Child [CRC].14 The government ratified the convention on September 5, 1990. According Article 49 (2), the Convention of the UN CRC entered into force for Indonesia on October 5, 1990, thirty days after the deposit by such State of its instrument of ratification or accession.15 Furthermore, the Indonesian government has an obligation under the article 39 of the Convention to take all appropriate measures to promote physical and psychological recovery.16

Indonesia is also a state party of the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT).17 The Government ratified to the Convention on October 28, 1998, and according to the Article 27 (2) of the Convention, the Convention entered into force for Indonesia on November 28, 1998, thirty days after the date of the deposit of its own instrument of accession.18 Indonesia made a reservation to article 30 (1) of the Convention concerning arbitration to solve the dispute among States parties, the reservation is valid because does not breach the object and purpose of the Convention and none of the State parties of the Convention make an objection to the Indonesian's reservation.19 The Government has a relevant obligation under article 14 of the Convention to ensure that its legal system provides adequate compensation to victims of torture.20 Moreover, as a state party, Indonesia has an obligation to comply with the Covenant, in particular article 2 of the Convention concerning effective judicial remedy and prevent torture.21

Indonesia is a state party of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).22 The government ratified to the Convention on September 13, 1984, and under the Article 27 (2), the Convention entered into force for Indonesia on October 13, 1984, the thirty days after the date of the deposit. Indonesia made reservation to article 29 paragraph 1 concerning dispute among State and refer a case to International Court of Justice (ICJ).23 The government has an obligation under article 2 paragraph c concerning legal protection for women.24

Another Covenant, that Indonesia is also the State party is the Covenant on Economic, Social and Cultural Rights.25 Indonesia acceded the Convention on February 23, 2006, and under the Article 27 (2), the Convention entered into force for Indonesia on May 23, 2006, three months after the date of the deposit.26 The Government has relevant obligations, especially, under article 2 paragraph 2 "to guarantee the implementation of the Convention, without discrimination.27 Subsequently, under article 1 of the Convention, the Government makes a declaration on the rights of self -determination.28

B. The Legal Discourse under Article 12 [3] of the Rome Statute

Indonesia has signed the Rome Statute in 1998;29 nonetheless the Government is still reluctant to ratify the Statute. Therefore, this paper stresses, despite the fact that Indonesia does not yet ratify the Statute, The Government, has an opportunity to invite the International Criminal Court's jurisdiction, under article 12 paragraph 3, which has a provision as follow:

"If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9."30

Article 12 [3] can be an alternative way to the Government, if the national legal systems and government's willingness are very weak to prosecute the alleged perpetrators. Indeed, the spirit of the ICC is that "the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation."31

In this regard, Indonesia could take a lesson from Côte D'lvoire. It made a declaration under the article 12 (3) of the Rome Statute, in relation with the crime which have been committed by the former president Laurent Gbagbo. Gbagbo refused to accept defeat on November 28, 2010 presidential election, the forces which were loyal to Gbagbo attacked and committed widespread acts of violence against civilians and specific ethnic or religious communities who supported another candidate, namely Allasane Ouattara.

The Pre - Trial Chamber III allowed the investigations, after the Prosecutor showed that the evidence is enough to indict Gbagbo committing widespread attack against civilian.32 According to Human Rights Watch, 3,000 people were killed and several hundred women were raped, largely on political or ethnic grounds.33

Côte D'lvoire is not state party of the Rome Statute and in order to recognize the International Criminal Court [ICC] jurisdiction, on April 18, 2003, the Government made declaration under article 12 (3). The Cote d'Ivoire declaration stated that it "accepts the jurisdiction of the court for the purposes of identifying, investigating and trying the perpetrators and accomplices of acts committed on Ivorian territory since the events of September 19, 2002.34 The current president of Cote D'Ivoire, Ouattara, on December 14, 2010 and May 3, 2011, renewed the declaration under the article 12 (3). Ouattara expressed his cooperation with ICC investigation on "all crimes and acts of violence committed since March 2010.35

C. The Government's Obligation under the Regional Human Rights Instruments

On August 8, 1967, Thailand, Indonesia, Malaysia, the Philippines, Singapore declared the Association of Southeast Asian Nations and nowadays, ASEAN has ten countries members.36ASEAN was born to promote peace and security in its region.37 Furthermore, in order to promote human rights in its region, on October 23, 2009, ASEAN established ASEAN Intergovernmental Commission on Human Rights (AICHR). Although AICHR is still new and does not have strong mandates, state parties, including Indonesia have an obligation to promote human rights in each territory.38

Moreover, ASEAN has also enacted the ASEAN Human Rights Declaration [AHRD], and regardless its weaknesses, the Indonesian Government have formal and moral duties, under the Declaration, to promote and protect human rights throughout its territory. For instance, in relation with the Civil and Political Rights, Indonesia has obligation under article 10 to 25 of the Declaration.39

D. The Government's Obligation under the Relevant National Laws concerning Human Rights

After Soeharto stepped down in 1998, Indonesia stressed its willingness to uphold the standard of promotion and protection of human rights. Therefore, the People Consultative Assembly [MPR], issued the regulation No XVII/MPR/1998 on human rights, on November 13, 1998. Shortly thereafter, the MPR ordered the Parliament and the Government to evaluate the laws which already existent, whether in line with the international human rights standards.

Therefore, the Parliament amended the Indonesian Constitution [called UUD 1945]. In regard to the Government's obligation to uphold the human rights standard, the [New] Constitution has more comprehensive provision on human rights, under article 28 of the Constitution. In particular, article 28 I paragraph 4, states "Protecting, promoting, upholding, and the full realization of human rights are the responsibilities of the state, foremost of the government." 40

Furthermore, the Parliament enacted several regulations, namely Law No 26 of 2000 on Human Rights Court, Law No 39 of 1999 on Human Rights, Law No 13 of 2006 on The Witness and Victim Protection Agency ( called LPSK), the Government Regulation [called Peraturan Pemerintah] No 44 of 2008 on the Compensation, Restitution, and Rehabilitation for Victims and Witness.

Additionally, the Country also enacted the Law No 27 of 2004 on the Truth and Reconciliation Commission [KKR], nevertheless it has been revoked by the Constitutional Court [MK], due to in conflicting with international human rights standards.

In terms of the Government's accountability towards the alleged of gross violations of human rights, the Law No 26 of 2000 clearly governs:

a. Article 18:

Paragraph 1 "Inquiries into cases of gross violation of human rights shall be conducted by the National Commission on Human Rights.
Paragraph 2 "In conducting an inquiry as referred to in clause (1), the National Commission on Human Rights may form an ad hoc team comprising the National Commission on Human Rights and public constituents."

b. Article 37,

states "Any person who perpetrates actions as referred to in Article 9 letter a, b, d, e, or j shall be sentenced to death or life in prison or to a maximum of 25 (twenty-five) years in prison and no less than a minimum of 10 (ten) years in prison.

c. Article 43:

Paragraph 1, states "Gross violations of human rights occurring prior to the coming into force of this Act shall be heard and ruled on by an ad hoc Human Rights Court."
Paragraph 2, states "An ad hoc human rights court as referred to in clause (1) shall be formed on the recommendation of the House of Representatives of the Republic of Indonesia for particular incidents upon the issue of a presidential decree."
Paragraph 3, states "An ad hoc human rights court as referred to in clause (1) is within the context of a Court of General Jurisdiction."

Moreover, under the Law No 39 of 1999, the Government also has several obligations in regard to the accountability of human rights.

a. Article 71,

states "The government shall respect, protect, uphold and promote human rights as laid down in this Act, other legislation, and international law concerning human rights ratified by the Republic of Indonesia."

b. Article 104

Paragraph 1, states "To hear gross violations of human rights, a Human Rights Tribunal shall be set up in the domain of the District Court."
Paragraph 2, states"Tribunal as referred to in clause (1) shall be established under law within a period of 4 (four) years."

E. The Government's Obligation on the Allegation of Human Rights Violation by The Transnational Corporations

As a State party of several international human rights laws, the Indonesian's Government also has an obligation to protect its citizens from the threat of human rights violations, which are conducted by Transnational Corporations [TNC]. This paper notes, in some instances, the Indonesian Security Forces were allegedly involved in the crimes, for instance, when the security forces shot protesters during the labour strike at the Freeport Mining Company, in 2011.41 Moreover, In Aceh, Exxon Mobil and the Indonesian Security Forces allegedly committed brutal oppression while guarding a natural gas facility in 2000 and 2001.42

Under the Guiding Principles on Business and Human Rights [called as Ruggie Guidelines], the Government has obligation as follow:

Based upon above-mention instances, the Government, as a host country, has obviously violated its obligation under international human rights laws, in which the Government has failed to protect its citizens from the crimes by the third party as well as the security forces. The Guiding Principles stresses "States may breach their international human rights law obligations where such abuse can be attributed to them, or where they fail to take appropriate steps to prevent, investigate, punish and redress private actors' abuse."44

Thus, the Government has a duty to investigate and prosecute the alleged perpetrators and provide adequate remedy for the victims. In contrast, the failure to provide "legal accountability" implies the Government has affirmed that it supported the third party to commit crimes. As stressed by Professor Steven R. Ratner, "The state's tolerance of a private human rights abuse actually violates the state's duty to protect the right through legislation, preventive measures, or provision of a remedy (or, in other cases, that the private actor involved is actually the organ of a state). For instance, the ECHR has held that the Netherlands' failure to prosecute sexual assault by a private person against a mentally handicapped ward violated the victim's right to privacy."45

II. The Government's Obligation under Customary International Law (CIL)

A. State Practice and Opinio Juris

This paper has identified international human rights instruments which are binding to Indonesia. Indonesia is a member of the United Nations and as such it has an obligation in relation to the UN Charter, in particular article 55 and 56, to promote universal respect for human rights, fundamental freedom regardless of various backgrounds of people.46 Furthermore, in terms of customary international law, according to the statute of the International Court of Justice (ICJ), article 38 paragraph (1) (b),47 there are two major elements of customary international law (CIL) which can be used to identify CIL, namely, state practice and opinio juris.48 "In this regard, Christine Chinkin expressed that "in terms of human rights policy, changed behavior towards implementation is precisely the desired objective and if consistency in state practice can be identified it seems artificial to discount it as evidence of customary international law."49

The Universal Declaration of Human Rights (UDHR) has become part of customary international law, particularly article 8 of the Declaration, which clearly stated the right a remedy.50 With regard to remedy, the UN issued the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.51 Paragraph 4 of the Basic Principle emphasizes state behavior to investigate, prosecute and punish against serious violation of international human rights law.52

In paragraph 5 mentions about domestic law appropriate provisions for universal jurisdiction.53The UN Human Rights Commission has also issued the Updated Principles on Impunity,54 in the Paragraph 2, there is a strong language of acknowledgment to prosecute and extradite perpetrators against serious human rights violations. The Basic Principle and the Updated Principle on Impunity, strongly reflect to the UN Charter, UDHR and other major human rights instruments, thus it should be considered as part of customary international law.

In order to prove State practice, judicial decision is one of examples that we can use to support State practice. There are some instances related this matter, the judgment of International Court of Justice (ICJ) concerning the case of Belgium v Senegal; the Court emphasized that, in failing to comply with its obligation under article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal has reneged on its international responsibility."55

Another example is the judgment of the US Appellate Court concerning torture case in Dolly M.E. Filartiga and Joel Filartiga v Americo Norberto Pena Irala.56 The judgment of a United States court in this case constitutes state practice and opinio juris and reflects customary international law.

There are some UN Conventions which have been accepted as customary international law and those treaties are binding on all states, including the non-parties. An example of this is the UN Convention on the Prevention and Punishment of the Crime of Genocide,57 the Convention against torture58 and slavery.59 This paper is also taking into account, Indonesia is a State party to the 4 Geneva Conventions of 1949 and it has the duty to protect civilian persons in times of war.60

B. Jus Cogens

One of the international human rights instruments which can be categorized as jus Cogens the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment to which Indonesia is a State party.61 The Vienna Convention on the Law of Treaties (VLCT), article 53, clearly expresses that jus cogens is peremptory norm.62 This paragraph emphasizes that jus cogens norm is a peremptory norm of general international law. Since the case of Furundzija, international court as well as municipal court has recognized that torture and genocide as jus cogens norm.63 Meanwhile, in the Inter American Court system in regard of torture, the court has strongly prohibited torture because it breaches jus cogens norms.64

Subsequently, experience from the European Court of Human Rights (ECHR), on November 21, 2001, in the case of Al-Adsani v. the United Kingdom; "the Court notes that the 1978 Act, applied by the English courts so as to afford immunity to Kuwait, complies with the relevant provisions of the 1972 Basel Convention, which, while placing a number of limitations on the scope of State immunity as it was traditionally understood, preserves it in respect of civil proceedings for damages for personal injury unless the injury was caused in the territory of the forum State. Except insofar as it affects claims for damages for torture, the applicant does not deny that the above provision reflects a generally accepted rule of international law. He asserts, however, that his claim related to torture, and contends that the prohibition of torture has acquired the status of a jus cogens norm in international law, taking precedence over treaty law and other rules of international law."65

III. Conclusion

This short survey of human rights treaties and international customary law clearly showed us that the Indonesian's Government has obligations to ensure remedy, truth and justice on addressing violations of human rights, either the cases occurred in the past or the current cases. The obligations are imposed under international law, regional mechanism, its constitution and national law and customary international law.

Indeed, the Government must ensure, respect and protect its citizens from various human rights violation, such as crimes against humanity and any other form of violations. Finally, the government must prosecute and punish perpetrators or offender of human rights through effective and fair trial and provide remedies for victims.