Indonesia: Terror Law Amendments Should Not Threaten Rights

Some of the proposed amendments to Law No. 15/2003 on the Eradication of Terrorism clearly contradict Indonesia’s international human rights obligations and would lead to violations of fundamental rights. They are part of a government response to the January 14 bomb and gun attacks in central Jakarta that killed seven people, including five attackers allegedly linked to the armed extremist group Islamic State, also known as ISIS. National Police chief Gen. Badrodin Haiti has justified the amendments on the basis that authorities’ ability to counter terrorist threats have been “hampered by regulations “that currently do not allow for the prosecution of Indonesian citizens who have joined overseas terrorist groups.

“Indonesia’s legitimate security concerns don’t give the government a green light to override fundamental human rights,” said Phelim Kine, deputy Asia director. “The Indonesian government should ensure that measures to keep people safe don’t trample basic rights such as freedom of expression and association.”

Indonesia's Coordinating Minister for Political, Legal, and Security Affairs, Luhut Pandjaitan, warned on January 21 that Indonesians will “have to give [up] some of [their] freedom” as part of the price for tougher counterterror laws. Pandjaitan has indicated that amendments to the law will include confiscating the passports of Indonesians suspected of joining or fighting with ISIS and declaring that they “don’t belong to the government and the people of Indonesia anymore.” President Joko “Jokowi” Widodo has supported that proposal on the basis that this would allow police to “take preventive action against suspected terrorists.” Neither Pandjaitan nor Jokowi have elaborated on the possible duration or judicial process the government will apply to either the proposed passport confiscation or stripping of citizenship. The government has also not provided any details on whether an amendment to strip Indonesians of their citizenship would apply only to dual or naturalized citizens, whether the citizenship-stripping would only be a possibility following a criminal conviction, or be subject to any form of judicial review.

 

According to a 2013 report by the United Nations secretary-general, “International law … obliges States to provide for an opportunity for the meaningful review of nationality decisions, including on substantive issues.” It provides that if citizenship is revoked, “lodging an appeal should suspend the effects of the decision, such that the individual continues to enjoy nationality – and related rights – until such time as the appeal has been settled.”

Pandjaitan has also mooted criminalizing “insult” to the state such as a refusal to “recognize the Republic of Indonesia.” National Counterterrorism Agency (BNPT) chief Comr. Gen. Saud Usman Nasution said on January 21 that pending amendments to the law will including adjusting the official definition of “treason” to include those who join “radical groups” or declare “caliphates” abroad. The term “radical groups” is overbroad and could encompass any number of groups that do not necessarily commit or intend to commit violence against civilians for ideological or political purposes.

Article 15 of the Universal Declaration of Human Rights states that everyone has the right to a nationality and that no one shall be arbitrarily deprived of their nationality. Article 12 of the International Covenant on Civil and Political Rights (ICCPR), which Indonesia has ratified, states: “No one shall be arbitrarily deprived of the right to enter his own country.” In 1999, the Human Rights Committee, the authoritative UN body for interpreting the ICCPR, stated that “The scope of ‘his own country’ is broader than the concept ‘country of his nationality,’” and that it would apply to people who have been stripped of their nationality in violation of international law.

The United Nations special rapporteur on human rights and counterterrorism, in a 2009 report, stated: “The definitions of terrorist crimes should be confined exclusively to activities that entail or are directly related to the use of deadly or serious violence against civilians…. The proscription of terrorist organizations, including the application of criminal responsibility of its members, must be made on the basis of factual evidence of activities that are of a genuine terrorist nature as well as of the actual involvement of the individuals concerned.”

In 2006, the UN General Assembly emphasized respect for human rights and fundamental freedoms as part of a Global Counter-Terrorism Strategy, and recognized that “development, peace and security, and human rights are interlinked and mutually reinforcing.” As part of that process, the UN Office on Drugs and Crime in 2009 released “Model Legislative Provisions Against Terrorism,” based on contributions from agencies across the UN system.

States have a responsibility to protect their populations from terrorist attacks, but they need to act in accordance with their international legal obligations. However, dozens of countries have enacted counterterrorism laws and policies in recent years that imperil human rights, Human Rights Watch research has found.

“The government response to the January 14 terror attacks in Jakarta should not include overbroad laws that will unjustifiably restrict the rights and freedoms that Indonesians have fought so hard for to achieve,” Kine said. “Counterterrorism laws that stifle free speech and peaceful protest won’t uproot terrorism – they’ll help it grow.”