Anton Aliabbas, Jakarta – The government recently submitted a draft of a presidential regulation (Perpres) on the involvement of military forces in the country's fight against terrorism to the House of Representatives. The proposal shows the government's intention to continue the militarization of counterterrorism in the country.
Controversy about the role of the Indonesian military (TNI) in counterterrorism has been ongoing since mid-2019. When the older draft of the current Perpres (dated April 18, 2019) circulated, it received strong criticism as it potentially endangered democracy and human rights in Indonesia. In addition, the older draft violated Law No. 5/2018 on antiterrorism and Law No. 34/2004 on the TNI.
The new draft is still not free of problems. Some of its content may undercut the country's fight against terrorism. First, it grants "deterrence" authority to the TNI (Articles 3 to 7). This has no grounds. The Antiterrorism Law only stipulates three functions in counterterrorism: prevention, enforcement and recovery. The function of deterrence proposed in the draft goes beyond the key provisions of antiterrorism legislation.
In addition, Article 3 (d) of the draft states the military can conduct "other" activities and operations without a clear and rigid scope or explanation. Thus, the execution of such operations are open to any interpretation – or improvisation – and may endanger human rights.
Second, overlapping jurisdictions may occur as a consequence of the implementation of the enforcement function. Article 9 (1) of the draft explains the scope of the military's enforcement function, at home and overseas, such as against terrorist acts against the president and his or her family, against a foreign embassy or against vital and strategic national objects. As Article 9 (2) allows TNI to conduct counterterrorism missions directly, the enforcement function may cause complications.
Besides the lack of clear mechanisms and procedures, the execution of the TNI mission also neglects the primary position of the National Counter-Terrorism Agency (BNPT) to develop, coordinate and conduct all policies, strategies and programs related to counterterrorism, as stipulated in the Antiterrorism Law. One of the possible consequences of the unclear division of labor in counterterrorism is the disruption of the criminal justice system, which has so far proven effective at incapacitating terrorist groups.
Third, as the counterterrorism policy will incorporate military strategy, tactics and repressive action, the draft neglects the importance of effective oversight. The draft says nothing about the House or auxiliary bodies such as the National Commission on Human Rights overseeing the military's activities in combating terrorism. Checks and balances are needed to ensure military operations abide by the law.
Fourth, the provisions for funding (Article 15) clearly violate the TNI Law. The draft opens opportunities for local budgets and other sources to contribute to military counterterrorist activities.
According to the Article 66 of the TNI Law, the state budget is the sole source of military spending. The rationale behind this is to ensure that the armed forces remain centralized. The addition of non-state budgets may elicit questions of transparency and accountability.
Furthermore, there is little need to widen the TNI's involvement in counterterrorism. Indonesia has not seen a major terrorist attack since May 2018. According to the Global Terrorism Database, the most frequent terrorist incidents in Indonesia in 2018 were related to Papuan separatism (16 of 43 total cases). In other words, the recent terror incidents cannot justify the government's plan to enhance the TNI's role in counterterrorism.
Security expert Mustafa Kirisci (2019) warns that the presence of additional security forces in counterterrorism does not guarantee a decline in terrorist violence. Instead, more repression will only give terrorists opportunities to gather public support and expand their groups.
In addition, the draft's submission is untimely because the government should be focusing on the fight against COVID-19. Undeniably, allegations of a hidden government agenda are inevitable. As the draft provides unclear explanations, there are concerns about the potential misuse of military forces to protect investments or economic recovery programs in the aftermath of the pandemic.
The House should, therefore, reject the draft or ask the government to reformulate the military's involvement in counterterrorism. The use of the armed forces in counterterrorism should be the last resort. Although the TNI has excellent capability and capacity in handling armed groups, its main task is to defend the country from external threats. Its role in counterterrorism should not disrupt its primary responsibility.
The House should ask the government to limit military counterterrorism missions to those against terrorism abroad, beyond the police's jurisdiction. Due to the rising threat of terrorism in the region, such as the kidnappings of Indonesian nationals in Mindanao, the government may give the TNI a mission to protect citizens from terrorism abroad.
At home, the military's involvement should be limited and should only be in the form of assistance to the police. Indeed, according to Article 7 (2) of the TNI Law, the military can be involved in counterterrorism operations other than war. But the use of the armed forces without clear rules may cause problems of disproportionality, transparency and accountability in military operations.
To ensure clear rules, a specific regulation on military assistance is needed. Military operations against terrorism are temporary missions that require state policy. The regulation should cover threat escalation, the duration of operations, the rules of engagement and the chain of command. Hopefully, the regulation will provide a clear guideline and framework for the implementation of assistance. Unfortunately, so far, neither the government nor the House have realized the importance of such a regulation.
Terrorism objectives will always exist, even though the government and security forces have effectively weakened the movement. So, improvement in applying a balanced approach to counterterrorism is needed. A mixture of offensive and defensive counterterrorism policy is required. The government will fail to defeat terrorists in the long run if we continue to rely on and prioritize a hardline approach.
[Anton Aliabbas is a senior fellow for security sector reform at Imparsial, a human rights watchdog.]