TEMPO.CO, Jakarta - LAST September, Busyro Muqoddas, Marzuki Darusman, and Independent Journalist Alliance filed a petition with the Constitutional Court for a judicial review of certain provisions in the Human Rights Court Law. They asserted that the phrase ‘by Indonesian citizens’ used in the law was unconstitutional as it did not go hand in hand with the principle of universality espoused in the constitution.

Marzuki said that the appeal was initiated by Indonesian human rights activists and the Myanmar Accountability Project aimed at finding a breakthrough to prosecute the perpetrators of genocide against Rohingya. Marzuki has long been involved in the Myanmar issues. He was appointed by the United Nations to head the fact-finding mission in Myanmar during the period 2017-2019. He and his team member, Christopher Dominic Sidoti, and United Nations Special Rapporteur on Myanmar, Yanghee Lee, later founded Special Advisory Council for Myanmar (SAC-M) which now serves as a liaison between various Myanmar groups and the UN.

Marzuki actually had high hopes that their petition would bear fruit given the balanced opinions among the judges who supported and rejected universalism in human rights. However, the Constitutional Court ruled against it on April 14. Nevertheless, Marzuki is not about to give up. “We have to find another way to petition again but through a different door. That is being explored,” he said during an online interview with Tempo reporters on April 20.

How did the petition for a judicial review come about?
This is a (demonstration of) the commitment of Indonesian activists in collaboration with the Myanmar Accountability Project based in London. The two parties explored ways to prosecute those who have been committing gross human rights violations in Myanmar for more than 30 years, considering the fact that the Myanmar legal system won’t possibly bring the perpetrators to justice because of the regime’s involvement in the crimes and their weak law enforcement.

According to international practice, there are three routes to prosecuting them. First, through the International Criminal Court (ICC). Second, through the establishment of a special international criminal court by the UN like in the cases of Yugoslavia, Rwanda, and Cambodia. Well, we wanted to explore the third route which is a national court that can carry out the function of an international court eliminating the need to form an international court.

Are there any countries that were given the authority to function as international court?
Argentina, Turkey, Belgium, the United Kingdom, and Spain. Now attempts can be made (to try the Myanmar case) in Argentina, Turkey, and the UK but we want to try to have the trial close to the site, in Southeast Asia.

You were part of the petitioners because of your long involvement in the Myanmar issues?
Yes. I handled the Myanmar issues for three years following the atrocities against Rohingya. The UN formed a fact-finding mission and I was appointed the chair of the mission alongside Radhika Coomaraswamy and Christopher Dominic Sidoti. At the same time, I was fighting to get a court established at the UN through another venue. I can’t just say no to this request (to be a petitioner).

Why did the petition target the Human Rights Court Law?
Because it uses the phrase that seems to limit the authority of the court to prosecute only Indonesian citizens. The phrase that became the subject of our petition is “by Indonesian citizens.” We petitioned to eliminate these words.

What is expected from the deletion of the words?
To enable an Indonesian court to prosecute non-Indonesians in relation to gross human rights violations.

With this elimination, can human rights crimes outside Indonesia automatically be tried (in Indonesia)?
That will open doors for the local judiciary to accept gross human rights violation cases by non-Indonesians. Whether the Indonesian judiciary can necessarily act as an international court following the decision (on the petition) is a different matter. But it would pave the way. But the Constitutional Court has rejected the petition.

Did you expect the outcome?
Actually, our hopes were high until the day (of the ruling). There was a balance of opinion between the recognition that our law limits universality in the application of human rights and the Constitutional Court’s considerations questioning whether the phrase contradicts the Constitution or not.

Isn’t the universality of human rights also regulated in the new Criminal Code (KUHP)?
It’s true that with the provisions in the new KUHP, Indonesia positions itself in the international human rights concept. This added support for our petition so that the Indonesian judiciary could function as an international judiciary. But the Constitutional Court argued that the debate over the universal jurisdiction issue was incomplete.

What is your next step?
We have to find another way to file another petition to the Constitutional Court through another door. This is being explored.

As a chair of the fact-finding team on Myanmar, what did you discover regarding human rights violations against Rohingya?
The most serious and grossest crimes by the regime was the genocide against Rohingya.

What is the real solid evidence of the genocide?
Genocide is a serious crime that does not happen instantly. The process begins with persecution and stigmatization which for Rohingya go back a long way, through deprivation of basic rights to live in Myanmar, for example, through restrictions on movement, livelihood, and education as well as discrimination against citizenship. Then there was stigmatization in many ways, particularly on social media likening Rohingya to subhumans. After this equation of Rohingya with subhuman via all sorts of derogatory labels continued, came a process that resulted in their removal or extermination. It was concluded that human rights violations against Rohingya were equivalent to, or meet the criteria of a genocide.

The fact-finding team recommended prosecution through three gates; the ICC, a special international court, and an international court in a country. What is the progress?
The resolution of the Human Rights Council still pushed for (trials) of perpetrators which we mentioned in our report. There were 11 offenders including the junta leader Gen. Min Aung Hlaing. Geneva (the Human Rights Council headquarters) has been ceaselessly trying to bring Gen. Min to court.

But there has been no progress yet?
The Security Council’s recommendation is needed to have him tried at the ICC. So, the ICC is currently trying to have a court established via the UN General Assembly bypassing the Security Council.

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Are geopolitical issues hampering the efforts to resolve the Myanmar case at the UN?
It is deeply intertwined with geopolitical issues. There’s always been a split between the West and Russia-China camps among the Security Council’s permanent members. The US, UK, and France are on one side with Russia and China on the other.

The situation is similar to the support trend for Ukraine at the UN?
Just like Ukraine.

What is the impact of the 2021 coup on Rohingya?
The coup was a unilateral action by the military to annul the results of the general elections won by Aung San Suu Kyi in December 2020. This posed a new problem because having launched the coup, the Myanmar military violated the constitution, effectively rendering the constitution irrelevant. The coup later led to a deadly war between the democratic movement (the National Unity Government, the National Unity Consultative Council, ethnic armed groups, and so on) and the military, claiming victims on both sides. In fact, currently, the democratic movement has control over two-thirds of the country.

Aung San Suu Kyi was criticized for not defending Rohingya. What happened?
What has been regretted by the international community is Aung San Suu Kyi’s denial of crimes against Rohingya to protect the military for the sake of the continuity of the ongoing democratic process at the time.

Was it Suu Kyi’s pragmatic stance to make peace with the junta?
Now, we ask if that was her pragmatic consideration or actually her own conviction too that Rohingya did not have the right to be in Myanmar. It’s extremely regrettable. This symbol of independence and humanity became so tainted this way.

Why does ASEAN’s five-point consensus on Myanmar fail to stop the violence there?
The junta also agreed to the consensus. Now, resolving the Myanmar fiasco requires pressure on the junta to seek a political, not military, resolution. The military resolution won’t take them anywhere because both sides are equally strong. In fact, the democratic movement is even stronger.

Even though the military is superior in terms of weapons?
Correct. Even though the military has more weapons, and is more powerful, in reality, they’ve failed to quell the movement which is also backed by ethnic armed groups. Likewise, the movement has not been able to beat the junta after two years. And now the junta is proposing general elections. This is a sign that they are seeking a political resolution. Indonesia needs to explore this new development as to how to take advantage of this opportunity which coincidentally comes up during Indonesia’s tenure as ASEAN’s Chair.

Read the Full Interview in Tempo English Magazine

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