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Indonesia's Constitutional Court on verge of making history

Jakarta Post - February 23, 2023

Chris Gunness, London – For the past four months, Indonesia's Constitutional Court has been considering a petition to allow cases according to the principle of universal jurisdiction, by which a state may prosecute and punish certain crimes regardless of where the crime was committed or the alleged perpetrator's nationality.

Crimes such as genocide, war crimes and crimes against humanity are so grave that they are deemed to have been committed against all mankind and so all states, arguably, have a universal obligation to act against them.

The case for such action is overwhelming in Myanmar where reliable evidence is mounting that mass atrocity crimes are being perpetrated on an almost daily basis. According to the most conservative estimates, 3,000 people have been killed by the junta since the coup in February 2021 and some 18,000 have been arrested or have forcibly disappeared.

On the face of it, Indonesia has the perfect place where these crimes can be prosecuted: The Human Rights Court. But the 2000 law which established the court states that only Indonesian nationals can be tried there. Hence the petition to the Constitutional Court.

The petitioners argue that the abovementioned law violates the 1945 Constitution by limiting the jurisdiction of the court to Indonesian nationals only. Indonesia's constitution makes repeated reference to the universality of human rights and states clearly in Article 281 Paragraph 4 that it is the direct responsibility of the government to protect human rights. Moreover, the Constitution stresses that these rights cannot be "reduced" under any circumstances.

Hence the petitioners are arguing that the four words in the law governing the Human Rights Court that limit the court's jurisdiction "to Indonesian nationals only" must be deleted to bring it into conformity with the Constitution.

There is little doubt that if the Constitutional Court justices allow this, they will become instant heroes to millions of people inside Myanmar who are crying out for justice. They will also be widely lauded for standing on the right side of history, alongside millions of people of conscience in Indonesia, Southeast Asia and across the world, who have watched with mounting horror as Myanmar's military has brutalized defenseless civilians with impunity.

Disproportionate and indiscriminate aerial attacks have become daily occurrences, killing thousands and internally displacing over 1.5 million people, according to the United Nations.

The undeniable humanitarian case for action is securely underpinned by considerations of law, as Prof. Maximo Langer, a world-renowned expert on universal jurisdiction at the University of California, Los Angeles, (UCLA), testified at the Constitutional Court in January.

He argued that international treaties, including the Geneva Conventions and the UN Convention Against Torture, of which Indonesia is a state party, require a state to adopt domestic universal jurisdiction legislation. This was set out in a judgment in 2012 by the International Court of Justice in a case brought by Belgium against Senegal.

Prof. Langer demonstrated to the Court the falsity of the argument often advanced by opponents of universal jurisdiction that it disrupts relations between states. If this were the case, the number of universal jurisdiction cases would be going down rather than up. And according to the database which Professor Langer has maintained, the number of cases has increased significantly in the last twenty years.

Furthermore, universal jurisdiction is generally exercised in cases over which, historically, there has been broad international consensus – such as against Nazis, former Yugoslavs and Rwandans – and comparatively rarely has it been invoked against heads of state who can be afforded immunity.

Another key expert witness to the Constitutional Court, Dr Cheah Wui Ling, associate professor of law at the National University of Singapore, who has researched universal jurisdiction in the context of ASEAN, testified that the legitimacy and importance of this principle is widely accepted by ASEAN members, as evidenced by numerous statements to this effect at the Sixth Committee (Legal) of the UN General Assembly.

In its submission to the Committee just last year, Indonesia's representative said that universal jurisdiction was "a crucial tool for putting an end to impunity for grave breaches of International Humanitarian Law and other international crimes".

In its statement to the Committee in 2017, Indonesia argued that universal jurisdiction served to "protect the rights of victims" and "uphold justice".

Dr. Cheah also argued that universal jurisdiction would not disrupt inter-ASEAN relations, as, under customary international law, it applies to a narrow category of very serious crimes. Moreover, she stressed that ASEAN members themselves acknowledged that international law regulated the exercise of universal jurisdiction and this would prevent its abuse.

On a practical note, she told the Court that Indonesia's ability to exercise universal jurisdiction would deter perpetrators of some of the world's most serious crimes from using Indonesia as a safe haven from the law.

Indonesia's House of Representatives voted unanimously for universal jurisdiction when it approved the new penal code on Dec. 6, 2022. Article 6 of the code specifically allows universal jurisdiction for international crimes and further articles (529, 530, 598, 599) criminalize genocide, crimes against humanity and torture, a crime against which Indonesia is required to exercise universal jurisdiction as a signatory of the UN Convention Against Torture.

If the Constitutional Court approves the petition, it will be affirming something for which there is overwhelming, cross-party political support. Moreover, it would be adding its stamp of approval to Indonesia's role as an engaged and responsible member of the international community, robustly committed to the rule of law – a noble ambition, enshrined in the preamble and first article of the Constitution.

As if to underly this, Indonesia has announced its candidacy for membership of the UN's Human Right Council for 2024, having served with distinction from 2020 to 2024.

A green light by the Constitutional Court would be a win-win for all. The court is being asked to approve something that has overwhelming political support, which is supported by ASEAN, which will contribute to Indonesia's role in the development of customary international law and which is in keeping with Jakarta's vision for Indonesia as a human rights leader.

Most important, it will send a powerful signal to the people of Myanmar, including the junta, that there must and will be accountability for the grave crimes being committed in Myanmar today.

This, in and of itself, would be an historic, laudable, justifiable and a politically low-risk step on the long road to justice for Myanmar.

[The writer is director of the Myanmar Accountability Project.]

Source: https://www.thejakartapost.com/opinion/2023/02/23/indonesias-constitutional-court-on-verge-of-making-history.htm