Indonesia is ready and should ratify the ICC
Mugiyanto , Jakarta | Fri, 04/10/2009 1:39 PM | Opinion
Prof. Hikmahanto Juwana wrote an interesting article on April 2, on whether
Indonesia should ratify the Rome Statute of the International Criminal Court
(ICC). The professor of law's position is clear, he is against the
The article is interesting, as Indonesia is now in the process of ratifying the
ICC, and due to the controversy on the issuing by the ICC of an arrest warrant
against Sudan President Omar al Bahsir.
In an article, "Should RI ratify ICC Statute?" Prof. Juwana argues that
Indonesia should not ratify the Rome Statute. First of all, Prof. Juwana said
Indonesia did not need to ratify the ICC because the country had promulgated
the Human Rights Court Law (Law No. 26/2000), which had been able to bring to
court three human rights abuse cases (the cases of Timor Timur 1999, Tanjung
Priok 1984 and Abepura 2001).
He pointed out the reforms within the Indonesian Military (TNI), that the TNI
was no longer involved in politics and made reports about respecting human
Prof. Juwana proposed three conditions in order for Indonesia to ratify the
Rome Statute; the need of the international community to treat all those who
commit international crimes the same; that countries like the United States
should not pursue impunity for their soldiers who commit international crimes;
and that Non-Surrender Agreements (NSA) should not be imposed by other
There is nothing wrong with these prerequisites. They are exactly the reasons
why the ICC was established as a permanent Court, to complement existing ad hoc
international courts such as the Nuremberg Tribunal, the Tokyo Tribunal and the
International Criminal Tribunals for former Yugoslavia and Rwanda (ICTY and the
ICTR) which are criticized more as political Courts.
What is more important to note, however, is that in order to make the ICC treat
all countries equally, and not be politicized nor target only less developed or
powerful states, Indonesia, as well as the states he specifically mentioned,
the United States and Israel, should ratify the ICC.
Not ratifying the ICC with the argument that other big countries alleged to
have committed international crimes have not ratified the ICC either, is like
looking for justification to committing similar crimes.
Indonesia, as one of the world's largest democracies, is right in leading the
move toward getting big and powerful countries onboard the international
With the arguments above, this writer is convinced Indonesia is ready and
should ratify the ICC without delay.
The ratification of the ICC by Indonesia will not merely improve its image with
respect to human rights and provide only a symbolic significance, as Prof.
Much more than that, the ratification of the ICC will make sure that Indonesian
citizens are protected from any possible acts of genocide, crimes against
humanity and war crimes.
It will also make Indonesia able to prevent such crimes happening in the
future, as well as to main-tain peace in the region and in the world. Moreover,
it will give Indone-sia equal footing with other countries that committed
themselves earlier to the order of international justice.
It is not only that the ratification of the ICC has been mandated by
Presidential Decree No. 20, 2004 in the National Plan for Action on Human
The Indonesian Civil Society Coalition for the International Criminal Court
(The Coalition), that has been working in parallel with the government on the
process of ratifying the ICC could only list the advantages of the ratification
and disadvantages of not ratifying the ICC.
Some of the principle advantages of the ratification are that it will give
protection to citizens, including the Indonesian peace keeping force; it will
enable Indonesia to play a bigger role in the international justice system;
accelerate legal reform; improve human rights protection and many other
benefits (Academic Paper of the Coalition, 2008).
However, some substantive issues are still "burning", and, accordingly, still
need further discussion to resolve, such as the following:
First, some still think the ICC will disrupt national sovereignty. Based on the
preamble of the Rome Statute, the ICC is complementary to national judiciary
(the complementary principle). Article 17 (1) of the Rome Statute on the
inadmissibility of the case guarantees this principle.
It is mentioned there that the ICC cannot intervene in criminal cases in
national courts when a state is performing an investigation or prosecution, and
if the case has been settled by a proper and fair court.
Based on this provision, the ICC is actually aimed at making the national
criminal judiciary of a state run more effectively.
Thereby, the ICC will neither intervene in nor reduce the sovereignty of the
legal system of Indonesia. National legal mechanisms remain the main avenue to
Second, on the principle of nonretroactivity, some still think that alleged
perpetrators of crimes which happened before the ICC comes into force will be
brought before the court.
Article 24 of the Rome Statute states that nobody will be held responsible in
term of penal law for things done before the Statute is put into effect. This
provision shows that the Statute of Rome does not prevail retroactively, and
that it holds dear the principle of legality as a cardinal principle in
The writer is chairman of the Association of Families of Victims of Involuntary