This month’s CAVEAT Main Report highlights this issue and asks us to think more beyond the OPCAT ratification. It is noteworthy that OPCAT ratification is not the end of the line, it is only the means for a greater end: the prevention of torture in detention facilities in Indonesia. Thus, we need to start thinking now –while urging the government to ratify OPCAT- what kind of NPMs would be best to implement once the protocol has been signed.
CAVEAT INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS VOLUME 13/II, JUNE 2010 MAIN REPORT | Beyond OPCAT Ratification Torture in Indonesian detention facilities is not a new story. Human rights groups have long been calling for Indonesia to sign the Optional Protocol of the Convention against Torture (OPCAT) aimed at reducing the problem; however the protocol itself raises some interesting questions explored in this report. It is strongly understood that OPCAT ratification would be an effective first step in preventing the practice of torture within the Indonesian detention system. However, as OPCAT ratification is not self-executed, it alone will not be sufficient. A more concrete system must be discussed on how to use OPCAT as an effective regulatory tool from a human rights perspective. ADDITIONAL FEATURE | Elite Anti-Terror Squads Need More Training This month has seen the Indonesian anti-terror force continue to carry out violent raids on suspected terrorists throughout the country. It must be said that anti-terrorism measures in the current political climate are sorely needed; however the gung-ho trigger happy conduct of the Indonesian anti-terror squads has attracted negative press both within Indonesia and abroad. Despite this, the anti terror squads still seem to act with impunity and enjoy an almost blameless existence. OPINION | Government Violates International Law by Delaying Reforms to End Torture In 2010, the AHRC continued to receive information on several cases of torture in Indonesia. Twelve years after the ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) by the Indonesian government, there is still a routine and widespread use of torture and ill-treatment of suspects, especially in police custody. Torture is systematically used as a way to extract confessions or information to be used in criminal proceedings despite its prohibition under international law applicable to Indonesia. www.lbhmasyarakat.org CAVEAT: Let her or him be aware
Transcript
C A V E A T
INDONESIA’S MONTHLY HUMAN RIGHTS ANALYSIS
VOLUME 13/II, JUNE 2010
MAIN REPORT |
Beyond OPCAT Ratification Torture in Indonesian detention facilities is not a new story. Human rights groups have long been calling for Indonesia to sign the Optional Protocol of the Convention against Torture (OPCAT) aimed at reducing the problem; however the protocol itself raises some interesting questions explored in this report. It is strongly understood that OPCAT ratification would be an effective first step in preventing the practice of torture within the Indonesian detention system. However, as OPCAT ratification is not self-executed, it alone will not be sufficient. A more concrete system must be discussed on how to use OPCAT as an effective regulatory tool from a human rights perspective.
ADDITIONAL FEATURE |
Elite Anti-Terror Squads Need More Training
This month has seen the Indonesian anti-terror force continue to carry out violent raids on suspected terrorists throughout the country. It must be said that anti-terrorism measures in the current political climate are sorely needed; however the gung-ho trigger happy conduct of the Indonesian anti-terror squads has attracted negative press both within Indonesia and abroad. Despite this, the anti terror squads still seem to act with impunity and enjoy an almost blameless existence.
OPINION |
Government Violates International Law by
Delaying Reforms to End Torture
In 2010, the AHRC continued to receive information on several cases of torture in Indonesia. Twelve years after the ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) by the Indonesian government, there is still a routine and widespread use of torture and ill-treatment of suspects, especially in police custody. Torture is systematically used as a way to extract confessions or information to be used in criminal proceedings despite its prohibition under international law applicable to Indonesia.
www.lbhmasyarakat.org
CAVEAT: Let her or him be aware
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CONTENT
THE EDITOR’S CUT | 2
MAIN REPORT | 3 Beyond OPCAT Ratification
ADDITIONAL FEATURE | 9 Elite Anti-Terror Squads Need More Training
OPINION | 11 Government Violates International Law by Delaying Reforms to End Torture
RIGHTS IN ASIA | 16
REPORTAGE | 17
CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta, Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced without prior permission of the LBH Masyarakat.
CAVEAT invites feedback and contributions. If you are interested in contributing a guest editorial piece or article, please contact us: [email protected]
Editorial Board: Ricky Gunawan, Dhoho Ali Sastro, Andri G. Wibisana, Ajeng Larasati, Alex Argo Hernowo, Answer C. Styannes, Pebri Rosmalina, Antonius Badar, Feri Sahputra, Grandy Nadeak, Vina Fardhofa Special Adviser: Maeve Showell Finance and Circulation: Zaki Wildan Address: Tebet Timur Dalam III B, No. 10, Jakarta 12820, INDONESIA Phone: +62 21 830 54 50 Fax: +62 21 829 80 67 E-mail: [email protected] Website: www.lbhmasyarakat.org LBH Masyarakat welcomes any financial contribution for the development of CAVEAT Name : Lembaga Bantuan Hukum Masyarakat Bank : Bank Mandiri Branch : Tebet Timur, Jakarta, Indonesia No. Acc. : 1 2 4 – 0 0 0 – 5 0 3 – 6 6 2 0 Swift Code : B E I I I D J A
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THE EDITOR’S CUT
On 26th of June 1987, the Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment (CAT) came into force after ratified by 20 state parties. Now June 26 is commemorated as the International Day in Support of Torture Victims. Indonesia has been a State Party of CAT since 1998. Despite this, the practice of torture is still widespread in Indonesia. Calls to the government to take necessary measures in order to prevent torture have been gaining strength for many years. One specific example is urging the government to ratify the Optional Protocol (OPCAT) which obliges State Parties to allow visits by sanctioned international and national bodies to places of detention. In other words, the Indonesian government will have to allow an international monitoring institution to inspect detention facilities and it will have to create its’ own National Preventive Mechanisms (NPMs). This month’s CAVEAT Main Report highlights this issue and asks us to think more beyond the OPCAT ratification. It is noteworthy that OPCAT ratification is not the end of the line, it is only the means for a greater end: the prevention of torture in detention facilities in Indonesia. Thus, we need to start thinking now –while urging the government to ratify OPCAT- what kind of NPMs would be best to implement once the protocol has been signed. Our featured article takes a look at Indonesia’s elite anti terror squads, and calls for greater training to ensure that the anti-terror fight does not step out of bounds of human rights. In our Rights in Asia column we have updates on human rights situations in Nepal, Philippines, and South Korea In Reportage, you may find series of activities conducted by Indonesian Networks against Torture (JAPI) –which LBH Masyarakat is a member of, in
commemorating the anti-torture day this year. Still related to torture, our Opinion section has a succinct overview of torture in Indonesian in the form of the Statement of AHRC on practice of torture in Indonesia. The statement generally highlights key issues such as torture criminalization, revision on Indonesian Penal Code and Criminal Procedure Code, police reform, and OPCAT ratification. Last but not least, allow us to express our gratitude for all of your support over the last year. CAVEAT is celebrating its first birthday in this edition and we are fully aware that your support contributes greatly in the continuance of this publication. We will keep trying our best to help you maintain a better understanding on the day to day human rights situation in Indonesia, so please kindly let us know your comments, suggestions and criticisms to [email protected]. Happy anti-torture day and thanks for your ongoing support! The Editor
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MAIN REPORT
Beyond OPCAT Ratification
INTRODUCTION
Torture in Indonesian detention facilities is not a new story. Human rights groups have long been calling for Indonesia to sign the Optional Protocol of the Convention against Torture (OPCAT) aimed at reducing the problem; however the protocol itself raises some interesting questions explored in this report. The subject of torture in Indonesia is woefully under reported. There has been no comprehensive documentation, research, or report which has been able to determine the exact number of torture cases in Indonesia. A report by United Nations Committee against Torture was published in 2008, however the concluding observations only stipulated that there are “numerous, ongoing credible and consistent allegations of routine and widespread use of torture and ill-treatment of suspects in police custody”1. No specific statistics were given. In same year, the Jakarta Legal Aid Institute (LBH Jakarta) conducted research which revealed that approximately 83% of detainees had been tortured or experienced ill treatment in detention in Jakarta and some surrounding areas.2 The LBH Jakarta report, however limiting in terms of its size, has shown us that a more detailed investigation is needed. We must not let the absence of data and statistics allow the subject to be ignored. In fact, the absence of such data may indicate how widespread and the practice of torture is and reflect the fact that it is difficult to document or detail in a comprehensive report.
According to a report compiled by Manfred Nowak, the UN Special Rapporteur on Torture, there are three main factors which facilitate the prevalence of torture in Indonesia. These factors are the lack of definition and prohibition of torture in accordance with Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), the excessive length of police custody, and
the absence of an independent detention facilities monitoring mechanism.3 A draft of the Indonesian Penal Code (KUHP) revision has addressed the first factor regarding the lack of definition and prohibition in regard to the practice of torture. The excessive length of police custody has been discussed in the reviewing process of the
Indonesian Criminal Procedure Code (KUHAP). Yet the last contributing factor - the lack of an independent mechanism to monitor detention facilities has not come to fruition. For several years human rights organizations have been calling for the Indonesian government to ratify the OPCAT. It is firmly believed that the OPCAT ratification will go a long way in ensuring that detention facilities in Indonesia are monitored by independent parties. The Protocol obliges the government to allow visits by either national or international independent bodies to places of detention, to oversee the facilities and the treatment of detainees. It is strongly understood that OPCAT ratification would be an effective first step in preventing the practice of torture within the Indonesian detention
The subject of torture in Indonesia is woefully under reported. There has been no comprehensive documentation, research, or report which has been able to determine the exact number of torture cases in Indonesia. A report by United Nations Committee against Torture was published in 2008, however the concluding observations only stipulated that there are “numerous, ongoing credible and consistent allegations of routine and widespread use of torture and ill-treatment of suspects in police custody”
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system. However, as OPCAT ratification is not self-executed, it alone will not be sufficient. A more concrete system must be discussed on how to use OPCAT as an effective regulatory tool from a human rights perspective. THE SUBSTANCE OF OPCAT
The main aim of OPCAT is located in Article 4 which obliges each State Party to allow visits by the Subcommittee on Prevention of Torture and other Cruel, Inhuman, Degrading Treatment or Punishment (hereinafter referred as the Subcommittee) as well as appointed national bodies to places of detention.4 It is worth noting that the term ‘places of detention’ has a rather broad meaning. The OPCAT defines ‘places of detention’ as places where persons “… are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence”5 so it is to be understood that the visiting bodies shall be given permission to visit not only detention facilities but also correctional facilities. The Subcommittee is an international body under the United Nations which was established by OPCAT6 and has the mandate to visit places of detention, assist State Parties in their national preventive mechanisms, as well as to cooperate with any relevant institutions or organizations in order to prevent torture in places of detention.7 To ensure that the Subcommittee can exercise its mandate, State Parties are required to provide unrestricted access to any places of detention and any information related to detention, including permitting Subcommittee to interview anyone involved in the detention facilities.8 Only urgent and compelling grounds recognised by Article 14 paragraph (2) of OPCAT such as national defence and public safety can be used by State Parties to object to a visit of the Subcommittee to places of detention within its territory.9 The subcommittee is an important part of the OPCAT organization but by no means
the only monitoring mechanism. As pointed out by University of Bristol OPCAT Research Team in their policy paper published in December 2009, what is actually at the heart of OPCAT system is the National Preventive Mechanisms (NPMs) these are the national organizations set up to monitor detention facilities in the absence of the Subcommittee. They have been described as “a crucial matter for the Subcommittee and effectiveness of the system to put in place by the OPCAT”.10 The Subcommittee in its first annual report also recognised the important role of NPMs by stating that “... unless the [national preventive] mechanisms are able to fulfil their role as the on-the-spot visiting mechanisms for the prevention of ill-treatment, the work of the Subcommittee will be seriously limited and adversely affected”.11 Countries that have ratified OPCAT are obliged to maintain, establish or designate one or several NPMs within one year after the ratification or accession.12 According to Article 19 of the optional protocol, NPMs shall be granted the power to regularly examine the treatment of persons in places of detention, make recommendations to the relevant authorities, and to submit proposals and observations concerning existing or draft legislation.13 OPCAT does not regulate how the State Parties maintain or establish these mechanisms or what kind of bodies should formed to meet the obligations set out in OPCAT. The protocol only regulates the basic rules such as mandate, obligations, rights and authorities. The rest is left up to the State Parties with an important note: State Parties shall consider the principles relating to the status of national institutions for the promotion and protection of human rights14, this is referred to as the Paris Principle.15 The Subcommittee has also
The main aim of OPCAT is located in Article 4 which obliges each State Party to allow visits by the Subcommittee on Prevention of Torture and other Cruel, Inhuman, Degrading Treatment or Punishment (hereinafter referred as the Subcommittee) as well as appointed national bodies to places of detention
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published the Preliminary Guidelines for the On-going Development of National Preventive Mechanisms (NPMs) which shall be used by State Parties in maintaining, establishing, or designating their NPMs.16 OPTIONS AVAILABLE
As OPCAT allows for an amount of freedom in the establishment of NPMs if Indonesia ratifies the protocol it will be faced with a number of options as to the kind of body to give this responsibility to. Which institutions will be given the mandate to conduct torture prevention mechanism? Currently 51 countries17 have ratified OPCAT of which 32 have already designated their NPMs.18 Using these 32 countries as an example it can be seen that generally there are three models which can be considered by Indonesia. The first model is that the authority and obligation of the NPM is given to an institution which was specially established to do so. This model is implemented by France with its’ Contrôleur Général des Lieux de Privation de Liberté (General Inspector of Places of Deprivation of Liberty)19 and in Germany with its’ Bundesstelle zur Verhütung von Folter (Federal Agency for the Prevention of Torture)20, and also by several other countries including Honduras, Malta, Senegal, and Switzerland. The second model is where the obligation and authority to conduct NPM given to an institution that already exists. In this case, overseeing torture prevention is only one of obligations of this institution. In this case usually this task is given either to a national human rights commission or to ombudsman commission for example the Maldives. The Maldives have given its national human rights commission the mandate to conduct NPM21. Denmark is an example of a country which has appointed the national ombudsman to the role. Under Section 18 of
The Denmark Ombudsman Act, the Parliamentary Ombudsman has authority to inspect any institution or company and any place falling under his competence including state prisons, detentions, and secure institutions for juvenile offenders.22 A third country which implements the second model is Estonia. However, unlike Maldives which gives the mandate to conduct NPM to the national human rights commission or Denmark which entrusts it to the ombudsman, Estonia prefers to impose the obligation to the Oigustkantsler or Chancellor of Justice, an institution that is quite similar to Indonesian Constitutional Court as it has the power to conduct constitutional review but also has functions of the ombudsman.23
The third model is one in which multiple bodies are entrusted with the job. This system is employed by countries such as New Zealand and United Kingdom. New Zealand grants the authority to conduct NPM to four bodies which are coordinated by its Human Rights Commission: the Office of Ombudsman, the Independent Police
Conduct Authority, the Office of the Children’s Commissioner and the Inspector of Service Penal Establishment of the Office of the Judge Advocate General of the Armed Forces. The United Kingdom holds the record for the country with the most national preventive mechanism bodies designating the task to 18 bodies coordinated by Her Majesty’s Inspectorate of Prisons.24 In the multiple-bodies model, all of the bodies have same obligation which is to monitor places of detention with each body appointed to a different sub-section of jurisdiction. In the United Kingdom, for example, The Children Commissioner for England has the authority to visit places of detention for children.25
If Indonesia is to ratify OPCAT, the country had best start to think of which model of NPMs it plans implement in the future. As previously mentioned the government has one year following the ratification to maintain or establish NPM. Thus it is imperative that this discussion begin while waiting for the government to fulfil its’ promise to ratify OPCAT. Indonesia can choose one of the three models or even can create its own model. There are several things need to be considered, including the national budget, geographic conditions, and the current resources available.
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BEYOND RATIFICATION: IN SEARCH FOR EFFECTIVE NPMS
If Indonesia is to ratify OPCAT, the country had best start to think of which model of NPMs it plans implement in the future. As previously mentioned the government has one year following the ratification to maintain or establish NPM. Thus it is imperative that this discussion begin while waiting for the government to fulfil its’ promise to ratify OPCAT. Indonesia can choose one of the three models or even can create its own model. There are several things need to be considered, including the national budget, geographic conditions, and the current resources available. Establishing an entirely new institution specifically to deal with places of detention is a fine idea in the sense that the new institution will focus solely on the monitoring of detention facilities. However building a new organization from the bottom up can be an expensive process and is thus going to be met with objections form a budgetary point of view. One central institution could also prove to be less effective in Indonesia given the country’s large geographical area and practiced decentralisation. Countries using a single-unified NPM are decentralised states with relatively small geographic size and a national constitutional authority, or the presence of very small regional governments with low populations.26 So in this sense, it seems that idea to establish one new central institution to deal with all places of detention in Indonesia will most likely not work effectively. Budget and geographical issues should not be a problem if the authority to conduct NPM is given either to the National Human Rights Commission (Komnas HAM) or the Ombudsman as these two institutions exist already in Indonesia and both have representative offices in most parts of Indonesia. The Ombudsman’s headquarters is located in Jakarta, but it also has representative offices in Jogjakarta, Kupang (Nusa Tenggara Timur), Manado (North Sulawesi), as well as in Medan, North Sumatra. Komnas HAM has its headquarters
in Jakarta and also has representative offices in Padang (West Sumatra), Pontianak (West Kalimantan), Jayapura (Papua), Aceh, Ambon, and Palu (Central Sulawesi). Other advantages in granting the authority to conduct NPMs to existing institutions such as Komnas HAM and Ombudsman is that it is ‘more politically expedient, and ... to avoid the danger of duplicating institutions and mandates’.27 Nevertheless, it is important to be noted that these institutions have many other tasks and mandates so giving additional resources28 – human, financial, and logistical- is a requirement if Indonesia decides to implement this model. The limited resources problem can be worked out if Indonesia implements the third model of NPMs: the multiple-bodies model. What can be done is Indonesia shall share the authority to conduct NPMs to several existing institutions which will focus on detention issues related to their current concern. For example, Komnas HAM shall be given the authority to conduct detention and correctional facilities for men and immigration detentions as well as to act as coordinator for the NPMs, whereas the National Commission on Violence against Women (Komnas Perempuan) shall be granted obligation to conduct monitoring on places of detention for women and Indonesian Children Protection Commission (KPAI) shall be the institution in charge of monitoring the condition of children in detention facilities and prisons. However this model is not a problem-free model either. Lack of coordination, gaps and duplications are problems which are likely to occur when a state implements this model.29 TIME TO THINK
All of the models have their own advantages and disadvantages. It is not easy to consider which one is the best and most effective for Indonesia in its current condition and this paper will not be able to give the comprehensive answer for that question. What is most important is that it is no longer time for us to solely urge the government to ratify OPCAT, as the OPCAT
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per se will not be sufficient, it’s not self executed. It will be up to the bodies appointed by the government to see that the protocol will fulfil its promise of limiting the amount of torture in detention facilities. Indonesia has witnessed how international human rights ratifications can fall short of achieving what they were designed to do. The fact that torture is still not criminalised 12 years after Indonesian ratified CAT in 1998 is only an example. Ratifying international human rights convention is a good beginning, but when it comes to human rights a good start is not enough. We need the ratification to work in practice. For this very reason, it is essential to think beyond the mere ratification, to what will need to be done as soon as the protocol is signed. It is time for us to start thinking.
1 Concluding Observations of the Committee against Torture INDONESIA; CAT/C/IDN/CO/2; 2 July 2008; Section C para 10. 2 See LBH: 83 Persen Tersangka Alami Penyiksaan http://nasional.vivanews.com/news/read/396-lbh__83__penyidik_gunakan_kekerasan 3 See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mission to Indonesia; A/HRC/7/3/Add.7; 10 March 2008; Section 4 para 65. 4 Article 4 of the OPCAT. 5 Ibid. 6 See Part II and III of the OPCAT. 7 Article 11 of the OPCAT. 8 Article 14 of the OPCAT. 9 Article 14 para (2) of the OPCAT. 10 University of Bristol and Arts & Humanities Research Council The Optional Protocol to the UN Torture Convention and the UN Convention on the Rights of People with Disabilities: some common issues (2009); p.3.
11 First Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; CAT/C/40/2; 14 May 2008; para 29. 12 Article 17 of the OPCAT. 13 Article 19 of the OPCAT. 14 Article 18 para (4) of the OPCAT. 15 In this document there are several principles need to be considered by States in establishing national institutions including principle on ‘competence and responsibilities’ and ‘composition and guarantees of independence and pluralism’. See Paris Principles National institutions for the promotion and protection of human rights; A/RES/48/134; 20 December 1993. 16 The English version of the guidelines may be downloaded on http://www2.ohchr.org/english/bodies/cat/opcat/mechanisms.htm 17 To see the list of OPCAT State Parties please visit http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9-b&chapter=4&lang=en 18 To learn more about the global status of OPCAT ratification please visit http://www.apt.ch/content/view/138/152/lang,en/ 19 Article 1 French Law of 30 October 2007 states that “The Contrôleur général des lieux de privation de liberté, independent public body, is in charge, without prejudice to the prerogatives given by law to the Judiciary or any court, to control conditions of management and convey of people who are deprived of liberty, in order to check enforcement of their fundamental rights. In his duties, he doesn’t receive instructions from any authority.” 20 The Federal Office for the Prevention of Torture was established on 20 November 2008 with the statutory notice of the Federal Ministry of Justice (Federal Bulletin, Nr 182, S. 4277) 21 Article 21 letter c of the Maldives Human Rights Commission Act; Act No: 6/2006. 22 Section 18 of the Denmark Ombudsman Act; Act No. 473 of 12 June 1996.
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23 Download the booklet of Chancellor of Justice of the Republic of Estonia on http://www.oiguskantsler.ee/public/resources/editor/File/INGLISKEELNE_KODULEHT/Areas_of_activity/buklett_2008_ENG.pdf 24 See correspondence between United Kingdom government and the Subcommittee in 2009 regarding the 18 bodies to conduct NPMs in UK which can be downloaded on http://www2.ohchr.org/english/bodies/cat/opcat/docs/NPM/UKs_NPM.pdf 25 See England Children Act 2004; Article 2 para (8). “The Children’s Commissioner or a person authorised by him may for the purposes of his function under this section at any reasonable time – (a) enter any premises, other than a private dwelling, for the purposes of interviewing any child accommodated or cared for there; and (b) if the child consents, interview the child in private.” 26 Matt Polard Implementation of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (OPCAT) in Federal and other Decentralized States (2005); p. 12. 27 Audrey Olivier and Marina Narvaez OPCAT challenges and the way Forwards: The ratification and implementation of the Optional Protocol to the UN Convention against Torture; Human Rights Centre University of Essex; p. 10. http://projects.essex.ac.uk/ehrr/V6N1/OlivierNarvaez.pdf 28 Ibid. 29 Ibid, p.12.
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ADDITIONAL FEATURE
Elite Anti-Terror Squads Need More Training
This month has seen the Indonesian anti-terror force continue to carry out violent raids on suspected terrorists throughout the country. It must be said that anti-terrorism measures in the current political climate are sorely needed; however the gung-ho trigger happy conduct of the Indonesian anti-terror squads has attracted negative press both within Indonesia and abroad. Despite this, the anti terror squads still seem to act with impunity and enjoy an almost blameless existence. Indonesia quite literally exploded onto the international terrorism map in 2002 with the attack on Bali nightspots that came to be known as the Bali bombings. The blasts, which killed 202 people, sparked a massive manhunt for the individuals and organizations behind the attack (largely thought to be Al-Qaeda linked militant organization Jemaah Islamiyah). Since then further attacks have occurred in Bali and Jakarta and the anti-terror force has responded in kind. In the post 9/11 world a large amount of research and resources have been directed to anti-terror initiatives. The practice of balancing human rights with the desire to protect the public from violent individuals and organizations has proved to be difficult, not only for Indonesia but for many other countries around the world. For example the United States has also has sparked debate in human rights circles around the world for its treatment of terrorism suspects in their infamous Guantanamo Bay prison and a number of other developed nations have had to grapple with subjects such as racial profiling, hate speech and vigilante groups. There has been no shortage of media interest in Indonesia and their domestic anti-terrorism efforts. The US and Australia
see the danger that Indonesia would pose if it did indeed become a hotbed for international terrorism. The U.S. has helped to train the very soldiers that have carried out some of the countries most vicious raids. The kill-to-capture ratio among the Indonesian forces is alarmingly high. For every four people that the force manages to capture alive, one is killed. This fact has raised few eyebrows as many believe that the terrorists are so dangerous that they do not deserve to live or have a right to fair trial. However intelligence gathered by the anti-terror units is by no means foolproof and it is hard to establish in a gunfight which people are terrorist masterminds and which are simply people in the wrong spot at the wrong time. For example, before the internationally wanted terrorist Dulmatin was killed in March of this year, police had already claimed to have killed him some months earlier, when he finally was confirmed dead pictures of his lifeless face were shown as gory kind of proof that this time they had got it right. This kind of media circus was also present during the manhunt for Noordin Mohammad Top. Noordin was the alleged mastermind behind the Bali bombings and was eventually killed in a prolonged gun fight in Bekasi. The successful capture of wanted and dangerous men often overshadows the death of other less infamous people caught up in the battle, many of whom cannot even be identified by the authorities, showing that they are not very fast up the terrorist food chain. From an entirely different perspective, the senseless killing of suspects does nothing to quell the rage of hardliner Islamic groups and can lead to further trouble with these organizations. Also, dead suspects cannot
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help in assisting future cases as they are not alive to be questioned. In the Dulmatin case, South East Asian terrorism expert Sidney Jones spoke to the media stating that in every case that a top ranking terrorist is killed the anti terror fight loses the opportunity to extract valuable information. Dulmatin was killed in an internet café and photos of the scene show him dead over his computer, his gun in his lap. These photos have indicated to some experts that forces had the opportunity to capture him alive if trained properly in such matters. Jones has also stressed that there needs to be a review after the raids to ascertain that such a level of violence was justified. When police in the United Kingdom wrongly shot dead Brazilian national Jean Charles de Menezes in the wake of the deadly London bombings, a huge investigation was launched into the police response to terrorism. There needs to be some sort of checks-and-balances system, the squads cannot run riot in the name of anti-terror. Despite these facts, the Indonesian government is routinely praised by countries such as the United States and Australia for its efforts on the ‘war on terror’. In 2005 the United States lifted the trade embargo that had stood as an example of their soreness with Indonesia’s human rights violations under the dictator Suharto. The lifting of this embargo had largely to do with Indonesia’s successful anti-terror campaign. It cannot be disputed that terrorism is not a subject to make light of. Previous attacks have shown that Indonesia can, and will be attacked. However more funds need to be channelled into further training of the elite anti-terror squads so that they are more equipped to handle confrontations without so much bloodshed. This, in turn will assure the greater safety of the squads own officers. Hand in hand to this initiative is greater intelligence gathering to make sure that the target that have zeroed in on is really the target that they assume to be and greater efforts should be taken to assure bystanders are not involved in the conflict.
Lastly, and this is true all over the world, more money needs to be channelled into research as to why people join and become active in militant terrorist organizations. This is especially true in Indonesia, a mostly moderate Islamic country where factors such as poverty, disillusionment with the government, geographical isolation and lack of formal education can help hardliner organizations recruit troops. --
The kill-to-capture ratio among the Indonesian forces is alarmingly high. For every four people that the force manages to capture alive, one is killed. This fact has raised few eyebrows as many believe that the terrorists are so dangerous that they do not deserve to live or have a right to fair trial. However intelligence gathered by the anti-terror units is by no means foolproof and it is hard to establish in a gunfight which people are terrorist masterminds and which are simply people in the wrong spot at the wrong time.
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OPINION
FOR IMMEDIATE RELEASE AHRC-STM-124-2010 June 25, 2010 A Statement by the Asian Human Rights Commission on the occasion of the UN International Day in Support of Torture Victims - June 26, 2010
INDONESIA: Government violates international law by delaying reforms to end torture
In 2010, the AHRC continued to receive information on several cases of torture in Indonesia. Twelve years after the ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) by the Indonesian government, there is still a routine and widespread use of torture and ill-treatment of suspects, especially in police custody. Torture is systematically used as a way to extract confessions or information to be used in criminal proceedings despite its prohibition under international law applicable to Indonesia. In December 2009, Mr. J.J. Rizal was arrested on false charges in West Java and was severely beaten during his arrest while in custody (See full case at AHRC-UAC-178-2009). On July 24, 2009, Ms. Muliyana, 24, was illegally arrested by Jakarta Metropolitan police officers and tortured while being interrogated about a bank robbery that her husband was allegedly involved with (See full case at: AHRC-UAC-175-2009). This rampant use of torture is to be linked with abuse of power by the police and constant miscarriage of justice. Credible allegations of corruption in the justice system and a criminal nexus with business and political interests have also been reported. The National Human Rights Commission (Komnas HAM) was set up in 1993 to
monitor human rights violations in the areas of civil, political, economic and social rights. From January to May 2010, it gathered 491 claims of human rights violations by the police, a large number of which involve the use of torture. The police department is the institution most often reported by the public to Komnas HAM for human rights violations. Komnas Ham recently particularly underlined the police's abusive interrogation techniques against suspected terrorists. "The main barrier in upholding human rights is the government itself," said Komnas HAM chief Ifdhal Kasim. While police torture in Indonesia is widely practiced, adequate punishment for those who torture, are lacking. Properly conducted investigations on torture cases are rare. Perpetrators are left unpunished, and the victims without effective remedies. A root cause lies in the lack of necessary laws and legal avenues to obtain justice. 12 years after the ratification of the Convention against Torture, torture has still not been criminalized. If torture occurs in
Indonesia, the perpetrators will be charged only for maltreatment (Article 351-358 of Indonesian Penal Code, KUHP) or 'use of coercion to wrench a confession' (Article 422 of KUHP). This is significantly different from the definition of torture introduced by Article 1 of CAT. As a result,
While police torture in Indonesia is widely practiced, adequate punishment for those who torture, are lacking. Properly conducted investigations on torture cases are rare. Perpetrators are left unpunished, and the victims without effective remedies. A root cause lies in the lack of necessary laws and legal avenues to obtain justice.
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no sanctions or inadequate sanctions are imposed on the perpetrators. Article 4 of the Convention obliges state parties to ensure that torture is made an offence under its criminal law and punishable by appropriate penalties. While the ratification displays a
'human rights-friendly
country' image, the reality shows just the opposite. It is time to prove and act. The AHRC welcomes the steps taken by
the government and the House of Representatives (DPR) to include torture as a criminal offence in the new Penal Code bill. It therefore urges both institutions to enact the new Penal Code as soon as possible. But, the AHRC is concerned about the unreasonable delays in passing this new draft legislation. It is important for both the government and the DPR to understand that stalling the enactment means stalling justice for the victims. As long as there is no law which criminalises torture, perpetrators remain unpunished. The ongoing violations of human rights by the police are also in contradiction with several national laws on human rights that have been enacted since the fall of Suharto’s regime in 1998. Law number 39/1999 concerning human rights adopts a definition of torture that complies with that stated in the CAT. It asserts the right of every person “not to be tortured”, while the Law No. 26 Year 2000 establishing the Ad Hoc Human Rights Court defines torture as a “crime against humanity”. However, the law is not applicable to individual cases of torture but to that of systematic and widespread nature. A reform of the policing system has been launched and was concretized with the new Police Regulation number 8 passed in 2009. It is concerned with the implementation of human rights principles and standards in the discharge of duties of the Indonesian National Police. It asserts the
duty of all members of the police to respect and observe human rights, which are defined as “non-derogable by any person under any circumstances”, including the right to be free from torture. The regulation forbids all police officers and personnel from using torture against suspected or detained persons, during arrest, during custody and during interrogations. These provisions are not adequately implemented, as the numerous reported cases of police torture show. It is necessary to effectively criminalize the use of torture in any circumstance. The ongoing police reform alone is not a sufficient enough reform to address the problem. Reforms cannot be isolated to one institution of the state. The prosecution and court system suffers from political influence and corruption that need to be addressed together. Cases of torture perpetrated by the military can only be brought before a military court. Military courts are notorious for lenient punishments of soldiers committing crimes against civilians. The law on military courts has to be reviewed to allow for military personnel to be held fully accountable before a criminal civilian court. Monitoring mechanisms over the police present another obstacle in the prevention of torture. As an institution mandated to exercise considerable power in public life, the police also have to be subject to monitoring to prevent arbitrary and unlawful actions. The current, internal police monitoring mechanism is run by the Internal Disciplinary Unit (IDU or Propam) and the General Evaluation Inspectorate (Irwasum). Both have been criticised by the public for their lack of transparency in conducting any investigation or monitoring of staff within the police institution. An effective external monitoring mechanism is lacking. The National Police Commission (Kompolnas) of Indonesia is only mandated to advise the President in taking decisions related to the policing system. Decisions of the Ombudsman can be breached without any legal consequences while the National Human Rights
While police torture in Indonesia is widely practiced, adequate punishment for those who torture, are lacking. Properly conducted investigations on torture cases are rare. Perpetrators are left unpunished, and the victims without effective remedies. A root cause lies in the lack of necessary laws and legal avenues to obtain justice.
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Commission (Komnas HAM)'s can only issue recommendations. In order to create a comprehensive mechanism in preventing and punishing torture, the government needs to revise the Criminal Procedure Code (KUHAP). There are a number of loop holes in this law which result in the prevalent use of torture. According to KUHAP, persons may be put under police custody for up to 61 days initially and can be detained for 340 more days if the case is brought for appeal before the Supreme Court. The unreasonably long detention period makes detainees more vulnerable to torture. This is seen especially in the lack of a mechanism to ensure regular and independent checks of detainees and detention facilities. The provisions in Article 185 paragraph (2) of KUHAP imply the legal principle of unus testis nullus testis (one witness is not a witness). This has made it difficult for torture victims to prove to the court that they have experienced human rights violations. Torture is mostly conducted inside detention centres such as police stations. This makes the witness requirement practically impossible to fulfil in most cases. Article 185 paragraph (2) of KUHAP should thus not be applied in torture cases. Instead, the testimonies of torture victims should be heard as witness testimonies and the burden of proof should be on the perpetrator. A revised KUHAP should also regulate that confessions made without the presence of a lawyer shall not be admissible as evidence, as recommended by UN Special Rapporteur on Torture, Manfred Nowak. Both the Government and the House of Representatives (DPR) are now in the process of reviewing KUHAP. If the process is oriented towards a clear human rights protection perspective, the AHRC welcomes the revision. This revision draft authorizes
Magistrate Judges to exercise various powers in such cases. Several other issues are not addressed by the current revision draft as yet. Two examples are: house and city detention as more lenient and alternative forms of detention which are abolished in the draft. It provides additional grounds for detention instead of limiting the power to detain more closely. However, the draft does not provide for any special procedures taking into account the particular vulnerabilities of the victim and the involvement of the police themselves in the case. The criminal procedure for cases of torture should address these circumstances. Victims in detention are often not given access to a doctor as provided by law. Family members, in several cases, reported
that they were not allowed to see their relatives. This kind of a situation makes detainees more vulnerable. It becomes difficult to obtain medical evidence of the torture they had to endure or to receive adequate medical treatment. The legal-institutional problems are aggravated by the fact that there is no independent detention and correctional facilities monitoring mechanisms to check the condition of
detainees. An absence of such independent mechanisms has been highlighted by the UN Committee against Torture in Geneva in its Concluding Observations published in 2008. The Committee recommended the following: “establish consistent and comprehensive standards for independent monitoring mechanisms of all places of detention, ensuring that any body established, at the local or the national level, has a strong and impartial mandate and adequate resources". In this regard, Indonesia should respond to international calls to ratify the Optional Protocol CAT (OPCAT). This Protocol imposes the obligation on state parties to
The legal-institutional problems are aggravated by the fact that there is no independent detention and correctional facilities monitoring mechanisms to check the condition of detainees. An absence of such independent mechanisms has been highlighted by the UN Committee against Torture in Geneva in its Concluding Observations published in 2008. The Committee recommended the following: “establish consistent and comprehensive standards for independent monitoring mechanisms of all places of detention, ensuring that any body established, at the local or the national level, has a strong and impartial mandate and adequate resources".
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allow visits by international and national independent bodies to places of detention. The Indonesian government announced its decision to ratify the optional protocol in 2008, following the 2004-2009 Human Rights National Action Plan (RANHAM 2004-2009). Two years after the government set a deadline and one year after the end of the action plan period, Indonesia has yet to give any further indications that it will ratify OPCAT in the near future. The AHRC deplores the failure on the government’s side to implement its own targets. Indonesia's Witness and Victims Protection Agency is insufficiently funded and ill-equipped to provide protection in cases of torture by the police. Unless this body is further developed, it can play no meaningful role in supporting victims of torture. In 2008, Manfred Nowak, the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, published a report following his visit to Indonesia. His report denounces the “routine practice” of torture in urban area police stations and the “serious allegations of ill-treatment” in rural areas. The reports assessment pointed out that torture is used especially to extract confessions or money. Mr. Nowak underlined the “quasi-total impunity” related to the use of torture. He further warned against the extensive use of excessive violence in police and army operations, especially in conflict zones, such as Papua. Among several others, he notably made recommendations to properly criminalize torture, to recognize the authority of the Committee against Torture and to reduce the period of custody. He finally called for a "zero-tolerance policy" vis-à-vis torture and ill-treatment by state officials and encouraged the authorities to adopt a comprehensive anti-torture plan. However, most of the recommendations formulated by Mr. Nowak have not been taken into account by the Indonesian government. This demonstrates an appalling lack of political will of the state institutions to put an end to the use of torture.
Indonesia must accept its responsibilities under international law and before its citizens. Joint efforts from the government, the parliament, the civil society and the international community must realize all necessary reforms to end the practice of police torture. Recommendations: • The government and the House of Representatives must enact the new Penal Code Draft criminalizing torture as defined in the convention. • The criminal procedure code must be reviewed including a reduction of the length of police custody, the end of the applicability of Article 185 paragraph (2) KUHAP in cases of torture, and the admissibility of confessions made in the absence of a lawyer • The new police regulations need to be distributed and enforced more strictly among the police. • Family members and Doctors need to be given full access to detainees as provided by the law. • Indonesia should ratify the Optional Protocol of the convention against torture. • The Internal Disciplinary Unit of the police
In 2008, Manfred Nowak, the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, published a report following his visit to Indonesia. His report denounces the “routine practice” of torture in urban area police stations and the “serious allegations of ill-treatment” in rural areas. The reports assessment pointed out that torture is used especially to extract confessions or money. Mr. Nowak underlined the “quasi-total impunity” related to the use of torture.
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must be reformed to become a transparent and accountable monitoring instrument; an effective external monitoring mechanism must be put in place. • The budget of the Victims and Witness Protection Agency must be increased to ensure that effective aid can be provided in cases of torture. • The military court law must be reviewed to hold perpetrators accountable under civil courts.
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RIGHTS IN ASIA Information contained in this column is provided by the Asia Human Rights Commission (AHRC).
NEPAL: A man remains missing after his abduction by the Young Communist League Surendra Tamang, 30, was abducted on May 7, 2010 by members of the Young Communist League because he allegedly refused to give money to a Maoist activity, during the Maoists’ indefinite strike. The police, like Deputy Inspector of Police (DPS) Dipak Thapa was uncooperative and dismissive of the case. During an interview with Surendra's wife he allegedly treated her roughly, as if she were a potential suspect, and insulted her. The Maoists have refused to cooperate with the police and Surendra’s whereabouts remain unknown. The impunity of persons involved in enforced disappearances is often secured by the uncooperative attitude of the police, who regularly refuse to register cases when the Maoists or the Young Communist League are involved. There is still no law in Nepal that criminalizes enforced disappearance. PHILIPPINES: Five months on, no charges filed against soldiers who tortured indigenous villagers Five indigenous tribe members have been illegally arrested by the military over false charges of being involved with the New People’s Army. Soldiers systematically suspect and search people, particularly those they had caught in forest area, as either being rebels or persons doing suspicious activities. This has already affected villagers in the remote areas, particularly the indigenous people, who still continue to live in what may be considered a backward lifestyle. The five men were tortured and threatened to be killed during interrogation, which lasted several days. Five months on, although the investigation has been completed and the findings forwarded to the head office in Manila, no charges have been filed in court. This once
again shows the impunity enjoyed by the military in cases of human rights violations. SOUTH KOREA: The Seoul Municipal Government fails to protect the right to an adequate standard of living for hundreds of elderly persons More than 300 tenants of small shops, most of them low income and aged between 50 to 85 years old, have been fighting against their eviction from the Gocheck traditional business market for years. The market is officially protected by the Special Act on Improvement for Traditional Business Markets or Commercial Areas, which places it under the urban plan. However local officials have wilfully avoided assisting or intervening, and 50 tenants have been evicted forcibly, despite the administration's duty to protect civilians' rights in government redevelopment projects. Police involved in the case have also not conducted an investigation into the reported assault and repeated threatening of tenants. The authorities have labelled the incident a private matter. The use of this excuse is routine in the South Korean administration and it results in the neglect of the rights of vulnerable persons. --
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REPORTAGE Indonesian against Torture Jakarta, June 28 – On June 26 the international community commemorates the UN International Day in Support of the Victims of Torture (International Day against Torture). On this day too, the International Day against Illicit Drug Trafficking is also widely commemorated. The Indonesian government, apparently, from time to time, opt to observe the latter rather than the former. Despite its plethoric commitment to protect human rights, the International Day against Torture has never been officially commemorated by the Indonesian government. Yet, it doesn’t halt Indonesian human rights groups’ ability to take part in this global movement. Indonesian Networks against Torture (JAPI) is a coalition of more than 20 human rights groups, including LBH Masyarakat. Our objective is to raise public awareness on the issue of torture as well as to urge the government to fulfil its human rights obligation. This year, as usual, JAPI held a series of activities in commemoration of the International Day against Torture. Its first activity was to hold a radio-broadcast program regarding torture held in conjunction with the Voice of Human Rights News Centre (VHR), on Wednesday, June 23, 2010. LBH Masyarakat’s Program Director, Ricky Gunawan and a family member of a torture victim took part in this program. Ricky Gunawan explained some key issues about torture such as the history of the International Day against Torture, the definition of torture, its distinction with maltreatment, the relation between torture and other human rights issues and its impact to individual both the perpetrator and the victim, as well as to the society as a whole. “Society needs to comprehend the grave nature of torture, without which, we will be tolerant towards torture and still accept it as a common practice to be used against suspect of crime. If this continues, it is the rule of law itself which will be diluted,” said Ricky.
In addition to radio-broadcast, JAPI held a peaceful rally on Friday, June 25. This activity was to memorialize those who have suffered the indescribable pain of torture and survived from the excruciating treatment. The rally started in Tangerang youth correctional facility to Cikokol, largely believed to be a place where authorities tortured political prisoners. Afterwards, participants of the rally came back to the correctional facility in which they conducted a discussion about torture and prisoner’s rights. Representatives from JAPI will provide a presentation for prisoners there. On June 26, JAPI undertook a peaceful demonstration at Bunderan HI, a famous landmark located at the centre of Jakarta. At this event, at least thousands of hand-books, brochures, and pins, were distributed to public. It is hoped that public awareness would be raised from this and media coverage would also multiply the effect of awareness. JAPI also distributed its statement which in principal urges the government to pass the Draft of Criminal Code and Criminal Procedure Code which can be a safeguard against torture, as well as to ratify the Optional Protocol of the Convention against Torture (OPCAT). --
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ABOUT US Born from the idea that all members of society have the potential to actively participate in forging a just and democratic nation, a group of human rights lawyers, scholars and democrats established a non- profit civil society organization named the Community Legal Aid Institute (LBH Masyarakat) LBH Masyarakat is an open-membership organisation seeking to recruit those wanting to play a key role in contributing to the empowerment of society. The members of LBH Masyarakat believe in the values of democracy and ethical human rights principals that strive against discrimination, corruption and violence against women, among others. LBH Masyarakat aims for a future where everyone in society has access to legal assistance through participating in and defending probono legal aid, upholding justice and fulfilling human rights. Additionally, LBH Masyarakat strives to empower people to independently run a legal aid movement as well as build social awareness about the rights of an individual within, from and for their society. LBH Masyarakat runs a number of programs, the main three of which are as follows: (1) Community legal empowerment through legal counselling, legal education, legal clinics, human rights education, awareness building in regard to basic rights, and providing legal information and legal aid for social programs; (2) Public case and public policy advocacy; (3) Conducting research concerning public predicaments, international human rights campaigns and advocacy. These programs are conducted entirely in cooperation with society itself. LBH Masyarakat strongly believes that by enhancing legal and human rights awareness among social groups, an independent advocacy approach can be adopted by individuals within their local areas.
By providing a wide range of opportunities, LBH Masyarakat is able to join forces with those concerned about upholding justice and human rights to collectively participate and contribute to the overall improvement of human rights in Indonesia.
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Peaceful demonstration conducted by Indonesian Networks against Torture (JAPI) in commemoration of the UN’s International Day in Support of Victims of Torture 26 June 2010.
