Time for Indonesia Taking Action against Crimes in Myanmar
By: Chris Gunnes | Director of the Myanmar Accountability Project
For the past four months, there has been an interesting development when the Indonesian Constitutional Court accepted a petition allowing the petitioners to file trials for human rights crimes in Myanmar. Judges of the Constitutional Court are willing to accept complaints of requests to prosecute and punish certain very serious crimes regardless of where they were committed or the alleged perpetrators’ nationality.
The petition asks for justice for types of crimes such as genocide, crimes against humanity and torture that are so grave that they are deemed to have been committed against all mankind and so all states, including Indonesia. The cross-jurisdictional justice departs from the basic stance that every country has a universal obligation to take action against these crimes.
Such crimes are being committed with impunity on an almost daily basis in Indonesia’s ‘back yard’, in Myanmar, and the petitioners are asking the Court to allow legal action in Indonesia’s courts under the principle of universal jurisdiction. This is because in Indonesia, citizens can submit a judicial review of a law that is against the constitution to the Constitutional Court.
Indonesia has the perfect place where these serious crimes can be prosecuted: the Human Rights Court. However, Law Number 26 of 2000 concerning human rights courts states that only Indonesian nationals can be tried in Indonesian courts. Even though the Indonesian 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 Indonesian constitution stresses that these rights cannot be “reduced” under any circumstances.
So the petitioners for the judicial review argue that the law violates the constitution by limiting the jurisdiction to Indonesian nationals only. Hence they are arguing that the four words in Article 5 of the Law on Human Rights Courts that limit the court's jurisdiction “to Indonesian nationals only” must be deleted to bring it into conformity with the constitution.
Indonesia's new Criminal Code (KUHP) allows for the use of criminal justice in other countries using the principle of universal jurisdiction. The Indonesian House of Representatives voted unanimously for universal jurisdiction when it approved the new penal code on 6 December 2022.
Article 6 of the code, in addition to articles 529, 530, 598, and 599, specifically allows for universal jurisdiction for international crimes such as genocide, crimes against humanity and torture, are crimes that must be fought by Indonesia.
If the Constitutional Court approves the petition, the decision will receive a lot of cross-party political support. Indonesia will be remembered for its role as an involved and responsible member of the international community and considered as a country that is strongly committed to upholding the rule of law as stated in the preamble and the first article of its constitution. If Indonesia can adopt this request, it will also smoothen its candidacy as a member of the 2024 UN Human Rights Council.
Some might argue that universal jurisdiction cases against officials in Myanmar could disrupt inter-state relations between Myanmar and Indonesia. Professor Maximo Langer, a world-renowned expert on universal jurisdiction from the University of California, Los Angeles, (UCLA), testified in the Constitutional Court in January rejecting the view. He showed the judges the falsity of the argument often advanced by opponents of universal jurisdiction that it disrupts relations between states.
Professor Langer cites data that 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 at the Constitutional Court, Dr. Cheah Wui Ling, Associate Professor of Law at the National University of Singapore, who has researched universal jurisdiction in the ASEAN context, 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 victims' rights” 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 stresses that ASEAN members themselves acknowledged that international law regulated the exercise of universal jurisdiction and this would prevent its abuse.
On a practical note, Dr. Cheah told a Constitutional Court judge 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.
A green light by the Constitutional Court would be a win win for all. The Constitutional Court's decision will contribute to Indonesia's role in the development of customary international law and and which is in keeping with Jakarta’s vision for Indonesia as a human rights leader.
In addition, the precedent has already been set in other countries, with cases being brought against the Myanmar junta in Argentina, Germany and Turkey whose legal systems allow for universal jurisdiction trials. With the willingness of the three countries, crimes in Myanmar can be put on trial.
Cases against humanity in Myanmar are believed to be increasing almost every day. By the most conservative estimates, 3,000 people have been killed by the junta since the coup in February 2021 and around 18,000 have been arrested or forcibly disappeared. Disproportionate and indiscriminate aerial attacks have become daily occurrences in the country, killing thousands and displacing more than 1.5 million, according to the United Nations. UN figures also attest to the destruction of 39,000 civilian properties, which were deliberately burned or destroyed by the junta forces since the coup. Some 17.6 million people, about a third of the country, according to the United Nations, are in urgent need of humanitarian assistance.
There is little doubt that if the Constitutional Court justices allow universal jurisdiction courts, they will become instant heroes to the 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.
Most important, the Constitutional Court's decision will send a powerful signal to the people of Myanmar, including the junta, that there must and will be accountability for the grave crimes they have committed. The Constitutional Court ruling, once again, would be a historic, laudable, justifiable and politically low-risk step on the long road to justice for Myanmar.
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