W

e are entering the 20th year since the international community adopted the Rome Statute, the founding document of the International Criminal Court (ICC). Not only was the adoption historic in the international legal sphere and in the protection of human rights, it also reflected a global commitment to peace, justice and rule of law.

In the context of ASEAN, the ICC recently opened its first preliminary examination into one country in the region. Earlier in February 2018, ICC Prosecutor Fatou Bensouda announced that the court had opened preliminary investigations into alleged extrajudicial killings in the Philippines’ anti-drug operations.

As granting victims’ rights in core international crimes is one of the most innovative features of the ICC, this move is an important step forward, although its effectiveness will be a challenge.

Yet, less than a week later, the Indonesian government took a completely different approach. On Feb. 14 the National Police awarded its highest Medal of Honor to the Philippines’ National Police director Gen. Ronald dela Rosa in appreciation for the Philippines’ war on drugs.

Why did the Indonesian government still bestow this honor on the Philippines’ top cop just after the announcement of the international court, which was set up to deal with the world’s worst criminals?

Indeed, Indonesia is not a party to the Rome Statute of the ICC; the Law on the Human Rights Court (Law No. 26/2000) only makes a reference to the Rome Statute. And the government has also often praised the Philippines’ war on drugs.

In assessing the polarity of the Indonesian government’s and the ICC’s approach, one cannot avoid questioning the future of international criminal justice in Indonesia.

There is a strong link between peace, justice and development. The perpetual peace we aspire to as reflected in our Constitution can only be achieved once justice has been served, and only thereafter can we talk and do something concrete about sustainable development.

The government’s progress on prosecuting past gross human rights violations has been next to nothing. Despite the promises of President Joko “Jokowi” Widodo to resolve past human rights cases, current signs only suggest that justice for core international crimes that allegedly took place in the past, including crimes against humanity, will remain untouched.

The truth of the matter is that the domestic courts will always be the court of first instance for prosecuting core international crimes, courts that possibly have a stronger deterrent effect on the local population than even the ICC.

The Transitional Justice Research Collaborative data-sharing platform has shown strong links between domestic human rights prosecutions and improved physical integrity rights. An independent and impartial judicial system indicates that the rule of law is firmly in place in the country concerned.

The establishment of Indonesia’s Human Rights Court under Law No. 26/2000 almost two decades ago was therefore an important starting point.

However, the court has not lived up to its mandate. Moreover, the provisions under the 2000 law still pale in comparison to the substantive and procedural standards of international criminal law. For example, victims’ rights are not fully accommodated in the 2000 law as it is in the Rome Statute.

Lest we forget, the ratification of the Rome Statute has been included more than once in the national action plans on human rights.

Other than working on significant reforms to its Human Rights Court, it is now imperative for the government to restart discussions on ratifying the statute, and to widely involve stakeholders in the process, including civil society and victims of gross human rights violations.

The ICC is not without its flaws. It has been under constant criticism, and late last year, Burundi became the first country to withdraw its membership.

In South Africa, a country with a relatively long history of transitional justice efforts, the process of withdrawing from the ICC has been ongoing. However, with its recent change in leadership, justice advocates have been consistent in their message to the new president: stay with the ICC.

After all, the Rome Statute contributes significantly to both substantive and procedural aspects of international criminal law, with major contributions in procedural law.

On a more important note, especially in the context of whether or not Indonesia should worry about its sovereign right to prosecute, the Rome Statute stresses primacy for domestic courts to bring justice to the victims of atrocities within their jurisdictions.

The detailed provisions within the Rome Statute makes it clear that each situation is subject to temporal and territorial boundaries, and the ICC is limited by these boundaries.

It is therefore clear that in Indonesia, despite formally having a human rights court, impunity remains and scores of victims and survivors are still left with no avenue for seeking justice.

Even if the day comes when Indonesia is finally a party to the Rome Statute, the ICC cannot and will never step in — if our domestic courts are genuinely able and willing to prosecute all individuals committing core international crimes. However, for that scenario to happen, significant reform of Indonesia’s Human Rights Court must take place.

Impunity prevails because justice is too often driven by national political interests, and there is no other recourse to justice. When a state ratifies the Rome Statute, it is an initial step in showing commitment in fighting impunity at the global level, as well as in strengthening its own justice systems to prosecute those responsible for serious crimes, without intervention, for present and future generations.

We can always hope that there will come a time when nothing can stop the voices of victims of core international crimes from being heard, when at last they will obtain the justice that they deserve.
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The writer is a researcher of international law and human rights, and a member of the Indonesian Civil Society Coalition for the International Criminal Court (Indonesian CICC). The views expressed are his own.