http://www.insideindonesia.org/stories/from-president-to-defendant-30111501
>From president to defendant?
Thursday, 01 December 2011 08:57
Genevieve Woods
Time is running out for SBY to get his house in order
Genevieve Woods
An irregular migrant worker held in the Tanjung Pinang holding centre
shows bruises from the caning he received in Malaysia
Henri Ismail/Poros Photos
In October 2010, Indonesia faced a diplomatic milestone – the inaugural visit
of President Susilo Bambang Yudhoyono (SBY) to The Netherlands. The visit was
to be an important step in rebuilding ties between Indonesia and its former
colonisers, marking the first time in more than 40 years than an Indonesian
head of state had visited that country.
But in a dramatic turn of events, just minutes before the plane was due to
depart, the president decided to cancel his visit. The decision was so
unexpected that members of the presidential entourage already waiting on board
the plane were forced to disembark and join their leader for an emergency press
conference at the airport.
The president’s visit would have placed him at risk of arrest by Dutch
authorities, as a group of separatists from the Republic of South Maluku had
commenced legal proceedings against him in The Hague District Court for gross
violations of human rights. Outraged by the indignity of the threat, the
president protested against the proceedings: ‘What I cannot accept is if the
president of Indonesia visits the Netherlands at the invitation of the Queen
... then the court may decide to arrest that president.’ The Dutch government,
meanwhile, claimed that the president was protected by diplomatic immunity and
could not have been taken into custody, and the case against him was dismissed
in court just one day after SBY had been due to arrive.
As long as SBY remains president, he maintains immunity from prosecution, as
the Dutch government suggests. But as he draws toward the end of his final
term, the question arises: will he be forced to face the consequences of his
failure to take a more serious position against human rights violations during
his time in office?
Taking it out of Indonesian hands
Indonesia is particularly susceptible to a growing trend in international law –
the prosecution of human rights abuses in foreign courts. For international
prosecution to be successful, the nation of origin of the accused must be
unwilling or unable to prosecute. Indonesia continually fits this description,
as recent high-profile failures to ensure justice for victims of human rights
abuses have cast doubt on the impartiality and professionalism of Indonesian
courts.
Following the notoriously unsuccessful East Timor tribunals in the Indonesian
Human Rights Court in 2004, the President of the European Union, the United
Nations High Commissioner for Human Rights and the General Secretary of the
United Nations all publicly stated that they believe Indonesian courts are
unable to provide justice for gross violations of human rights. This
high-profile criticism has had a serious impact on Indonesia’s international
reputation.
The issue once again came to the forefront of the global media agenda when
cases of torture in Papua were publicised and allowed to go unpunished. In
January 2011, three soldiers caught on video torturing two Papuan men were each
sentenced to less than ten months imprisonment. The verdict caused outrage
amongst the global media and NGO activists, who had not only heard about the
incident, but had actually watched it themselves on YouTube as the video went
viral. The global community’s indignation over the Indonesian judicial system’s
failure to respond in a way that recognised the gravity of the situation was
amplified by the horror of witnessing torture first hand.
As human rights abuses in Indonesia begin to reach a wider audience, foreign
governments find it increasingly difficult to remain silent. The more
Indonesian courts are seen to be incapable of guaranteeing justice, the more
likely it is that foreign nations will come under pressure to make use of the
increasing scope of international law and take Indonesian prosecutions into
their own hands.
A president in the docks?
SBY is not the only Indonesian official at risk of overseas prosecution, but he
is by far the most high-profile. And while, for now, he has full immunity from
prosecution, upon leaving office he will only be entitled to the significantly
weaker protections afforded to a former head of state – which have been waived
in other international cases where gross violations of human rights have been
at issue. So, once his term in office draws to an end, the president could be
forced to choose his travel destinations carefully.
Countries as diverse as the UK, the Netherlands, the USA, Spain and Belgium
have initiated proceedings against former heads of state in the past. Australia
followed suit in 2011, filing charges against the president of Sri Lanka for
war crimes. Jennifer Robinson, a human rights specialist based in London, has
told the media that several groups are currently preparing cases against the
president for crimes against humanity. According to Robinson, if the president
were to travel to London after leaving office in 2014, he would face a
significant risk of indictment, even though he has not been directly involved
in individual acts of human rights abuse. She explained the legal basis for the
threat of action: ‘Under the doctrine of command responsibility, political and
military leaders who fail to take action against their subordinates for human
rights violations can themselves be found responsible.’
By failing to ensure justice for victims of human rights abuses in Indonesia,
SBY has made himself vulnerable to international prosecution. But, ultimately,
the president remains in control of his own destiny because there is still time
to undertake further legal reform. If SBY chooses to champion the rights of
victims, he will increase his chances of avoiding a situation where he finds
himself confined to Indonesia for fear of foreign prosecution – and in the
process, bring the perpetrators to justice.
Genevieve Woods ([email protected]) is an Arts/Law student at the
University of Sydney. She has just finished her Honours year in Indonesian
Studies.
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