INDONESIA: War against terrorism should respect human rights
INDONESIA: War against terrorism should respect human rights and the Rule of Law
The Asian Human Rights Commission (AHRC), a regional, non-governmental, human rights organization in Asia, has learned of the current situation on the war against terrorism in Indonesia. We deplore the action of the Police of the Republic of Indonesia, in particular Special Detachment Anti-Terror Unit (Densus 88). They have not seriously learned from their previous experience. The agenda on war against terrorism has caused human rights violations. Similar cases recur without law-enforcement or accountability.
In the last 10 years, the national discourse to revise Law No. 15 of 2003 on the Eradication of the Criminal Acts of Terrorism is still on-going. The discourse is becoming stronger after the case of a suicide bombing and explosion in Jakarta, in Kampung Melayu (24/5/2017) and Jalan MH Thamrin (14/1/2016). Previously, we noted a terror bombing that occurred in the Bursa Efek Jakarta (2000), in Plaza Atrimum (2001), in JW Marriot (2003), in Kuningan (2004), and in Mega Kuningan (2009). The Government believes that by revising the Law it will be strengthening the role of the State in eradicating terror. Revision is needed because Law No. 15 is not appropriate since it was adopted from the Government Regulation in Lieu of Law (Perpu) No. 1/2002 on the Eradication of the Crime of Terrorism. It was issued by President Megawati Sukarnoputri after the Bali bomb blast on 12 October 2002.
However, the plan to revise Law No. 15 of 2003 was not accompanied by accountability of the Special Detachment Anti-Terror Unit 88. On the contrary, Parliament suggested that in the new bill, the military (TNI) should be incorporated in conducting war against terrorism in Indonesia. Of course the idea to involve the military is very controversial. Parliament’s perspective merely strengthens the State’s position without developing an accountability mechanism to audit the State’s Police involved in the war on terror. Involving the military in the war on terror will only endanger law enforcement and cause more human rights violations.
We hereby provide some instances of human rights violations caused by a lack of accountability within the Law and human rights considerations:
Study case 1
The AHRC notes that Mr. Muhammad Jefri, alias Abu Umar, was dead within a few hours of being arrested by the Anti-Terror Police Unit on 7 February 2018. Jefri was arrested due to allegedly being involved in a case of terrorism. At the time of arrest, the Police did not produce an arrest warrant. Therefore, there is a strong allegation that the Anti-Terror Unit performed an illegal arrest with detention. Shortly thereafter, the Police held a press conference and informed the public that Jefri died of a heart attack. However, nowhere did the Police say how they treated Jefri when he was under arrest and detention. According to the family, Jefri was healthy and in good physical condition when the Police arrested and finally detained him.
On 10 March 2016, the police arrested Mr. Siyono, after searching his home in Pogung Village, Cawas Sub-District, Klaten Regency, Central Java Province. His house also functions as a Kindergarten. The searching frightened the children who were studying there. On March 11, Siyono’s family received information from the Pogung Village Secretary that Siyono had died. His family was requested to go to Jakarta to verify this information. The head of Pogung Village was ordered by the Police to prepare Mr. Siyono’s burial site. His family and the Village Head were concerned at Siyono’s sudden death. He had no health problems prior to being arrested by the Police. According to the autopsy carried out at the Kramat Jati Hospital in Jakarta, Mr. Siyono died from bleeding in the brain after being hit by a hard object. Finally, at a press conference on March 14, Police spokesman Inspector General Anton Charliyan confirmed the autopsy results. He further acknowledged that the Police had breached procedure in handling terrorist suspects.
Case study 3
Some instances which occurred in the last ten years:
• The Special Detachment Unit 88 (Densus 88) shot an innocent civilian, named Mr. Nur Iman in Sukoharjo, of Central Java Province. At the time, the personnel of Special Detachment 88 were holding a sweeping operation to arrest terrorist suspects Sigit Qordhowi and Hendro Yunianto.
• The Special Detachment Unit 88 (Densus 88) arrested terrorist suspect, Mr. Wahono, from Lampung Province. This was a wrongful arrest resulting in the stopping of Mr. Wahono’s wedding ceremony
• The Special Detachment Unit 88 (Densus 88) arrested two innocent civilians in Tulungagung, Central Java. They are Mr. Mugi Hartanto, an elementary school teacher, and Sapari, an employee of a private company. Both of them were detained for approximately seven hours. They were finally released as they were found to be not guilty.
• The Special Detachment Unit 88 (Densus 88) carried out torture and ill-treatment against a terrorist suspect in Poso, Central Sulawesi. This case was widely published through the social media
At the time Law No. 15 of 2003 was issued, Indonesia did not have a National Law governing the eradication of terrorism. Because the Law was enacted without proper legislative processes, it contains some controversial articles. It was also in violation of the International Covenant on Civil and Political Rights (ICCPR) where Indonesia is a State party with the enacting of Law No. 12 of 2005. Under Law No. 15 there are no clear boundaries between an act of terrorism act and political dissent. Therefore, it can be potentially used to prosecute political dissidents. Moreover, the Law is also in violation of the Independent Judiciary because of involvement of the Military and the State Intelligence Agency (BIN) in eradicating terrorist acts. There is no clear division of labor between the Police, the Military and the BIN. This circumstance results in human rights violations, in particular deprivation of liberty, illegal arrest and detention.
The Law does not provide the right to habeas corpus to examine fair trial principles before the Courts. In addition, the investigators can use intelligence data directly to develop facts and indict without knowing how to obtain data or information from suspects. There are no clear definitions on data or information. Whether or not there was torture or abuse of power in obtaining the data, is not governed by Law.
Another related problem of the Law is the lack of a complaint mechanism. Even today the Government has yet to develop a proper and accountable complaint mechanism to address human rights violations or the negative impacts of war on terror. Victims and families of victims can only use ordinary mechanisms such as General Crimes to seek compensation. In fact, it is very difficult to implement.
One of the fundamental problems in Law No. 15 of 2003 is related to the definition of terrorism. Article 1, paragraph 1 states terrorism are all acts which fall within the crimes stipulated in the Law. This provision is not clear in defining a terrorist act. Therefore, the Government needs to develop a clear and proper standard and definition of terrorism. Related to this matter, we refer to the definition of terrorism issued by the Secretary-General’s High Level Panel on Threats, Challenges, and Change (2004). It describes terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act”.
Thus we propose that in developing a standard definition of terrorism, the Government, in particular the Legislative Branch, should develop clear boundaries between terrorist crimes and political dissent or public expressions to avoid human rights violations.
Considering the aforementioned problem, we call on the the Government of Indonesia to audit the Special Detachment Anti-Terror Unit (Densus 88). This Audit must include its budget source and spending methods. The Government should ensure that law enforcement under fair trial principles will be applied in the case of terrorism. The Anti-Terror Unit needs to change its mindset. Arresting terrorist suspects would be more humane, if it is possible, rather than killing them. Keeping a suspect alive could be helpful in delving deeper into the terrorist networks. Last but not least, the revision of Law No. 15 of 2003 should be conducted in good faith, be transparent, accountable and accessible and in line with International Human Rights Treaties of which Indonesia is a State party.
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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organization is a Laureate of the Right Livelihood Award, 2014.