INDONESIAN JUDGES SEMINAR ON
INTERNATIONAL HUMANITARIAN LAW
I. Background
In November 2000, the Indonesian Parliament passed Law 26/2000 incorporating the Rome Statute of the International Criminal Court (ICC), which includes the two most heinous of state crimes: genocide and crimes against humanity. The law led to the establishment of the Indonesian Ad Hoc Human Rights Court ("Court") in Jakarta to prosecute members of the Indonesian military and police, government officials, and Timorese militia leaders for violations of international humanitarian law and human rights committed in East Timor and Indonesia. Twenty-three judges were appointed to serve renewable five-year terms on panels of five judges. Each panel consists of two career judges and three “ad hoc judges.” Nearly all of the ad hoc judges are law professors at Indonesian universities. The Court has completed twelve trials for East Timor involving eighteen defendants, including three generals of the Indonesian Armed Forces (TNI). Other trials involving gross human rights violations committed in Indonesia have already begun and others are scheduled to follow.
By late August 2003, the Court had handed down convictions against six of the 18 defendants, including two generals. Considerable international criticism has been directed at the trials, principally because of the number of acquittals, light sentences, and poor performance of the prosecution. While many international nongovernmental organizations have denounced the trials and called for the establishment of a UN-backed international tribunal, it is important to recognize that there are significant variations in the quality and performance of the different panels. Moreover, the judges have been working under difficult conditions. They have no dedicated offices, computers, research resources, or other facilities and have had to pay for basic supplies, such as paper, photocopying, and secretarial costs, out of their own pockets. It took nine months before they received their first paycheck. They have also had to make up for a weak and passive prosecution and inadequate support from the Attorney General’s Office. Also, the panels that have been more disposed to convict have confronted a persistent pattern of interference, intimidation, and harassment on the part of certain sectors of the government and military. In the face of these obstacles, many of the judges remained committed to conducting trials in accordance with international standards. For example, the conviction of Major General Adam Damiri, currently Director of Operations in the Indonesian government’s military offensive in war-torn Aceh, after the Prosecution had asked for his acquittal, marks an important, if tentative, step towards judicial independence and an end to the culture of impunity in Indonesia.
On 1 – 12 September, 2003, the five sponsoring organizations convened a two-week seminar on international humanitarian law for ten of the Indonesian judges of the Ad Hoc Human Rights Court. The seminar was organized and chaired by David Cohen and Eric Stover of the University of California, Berkeley. The first week of the seminar was held at the East-West Center in Honolulu, Hawaii and was attended by the Indonesian judges and experts in international humanitarian law (See Appendix A). The faculty of experts included the Presiding Judge of the International Criminal Tribunal for Rwanda (who has also been elected by the United Nations to the new International Criminal Court (ICC), prosecutors, investigators, and other officials from the International Criminal Tribunal for the former Yugoslavia (ICTY), some of the world’s leading forensic war crimes investigators, scholars, and Indonesian legal experts, and human rights activists.
During the second week, the Indonesian judges traveled to The Hague to participate in a program organized by the ICTY Outreach Programme. They observed the trial of Slobodan Milosevic along with other court proceedings at the ICTY (See Appendix B). In addition, they received briefings from the Registry, the Office of the Prosecutor and the Chambers as to the court’s organization, functions of its various components, and case management. Most importantly, they were able to engage in open round table discussions with senior members of the various units of the court in discussing the legal as well as the practical challenges they have confronted. They also visited the International Court of Justice where they were briefed on the workings of that court. Finally, a seminar at the ICC was concluded with another open round table discussion with the senior judges at that court.
The Open Society Institute, Canadian Human Security Program, Wang Family Foundation, The Sandler Family Supporting Foundation, and East-West Center provided support for the seminar.
II. Seminar Objectives
The principal objective of the Seminar on International Humanitarian Law was to enhance the effectiveness of the work of the Indonesian Ad Hoc Human Rights Court through an examination of key issues pertaining to the jurisprudence of international humanitarian law and the operations of the ad hoc international criminal tribunals.
The seminar examined:
(1) the history and development of international humanitarian and human rights law;
(2) the creation, mandate, and structure of the ad hoc international criminal tribunals (ICTY & ICTR); the International Criminal Court (ICC); hybrid tribunals; and the Indonesian Ad Hoc Human Rights Court;
(3) the procedural rules, case management, calendaring, and handling of
witnesses in criminal trials pertaining to international humanitarian
law;
(4) the steps taken in pre-trial investigations, including witness protection and the collection of testimonial, documentary, and physical evidence;
(5) the elements of the crime, criminal liability, and jurisprudence in specific ICTY and ICTR cases involving command responsibility, crimes against humanity, complicity and joint criminal enterprise;
(6) the Rules of Evidence and Procedure of the Indonesian Ad Hoc Court and suggested ways of amending them so as to incorporate the procedural and evidentiary rules of the ICC and the ad hoc international criminal tribunals; and
(7) the ways in which the performance and independence of the Ad Hoc
Human Rights Court can be enhanced within the strictures of the
Indonesian judicial system.
III. Honolulu Seminar
During five days of meetings at the East West Center in Honolulu, Hawaii, the Indonesian judges and international faculty engaged in intensive discussions on the full range of issues enumerated above. Each session opened with a relatively short presentation so as to devote most of the time to discussion of key issues of particular interest to the judges. The judges also readily conveyed to us the questions which they thought deserved particular attention. Keeping the program somewhat flexible enabled us to make sure that sufficient time was spent on topics that mattered most in the Indonesian context. The attached program indicates the scope of what was covered at the meetings, but does not convey the remarkable degree of engagement with which the participants pursued the discussions. After adjourning at six in the evening, most of the participants met again for dinner and pursued issues raised during the day in this more informal setting. Afterwards, the Indonesian judges met amongst themselves to discuss ways to translate what they were learning into practical measures to improve the effectiveness of the Jakarta Human Rights Court.
During the last two sessions, the participants, after having split up into working groups on particular topics, drafted the recommendations, which were unanimously adopted by both the international participants and the ten Indonesian judges. This unanimity is remarkable given the range of orientations among the judges from very conservative to progressive. Part of the achievement of the Seminar was the way in which the discussions enabled the judges to come together and find common ground in their approach to their Court. The recommendations (see below) represent a welcome and positive commitment to carry forward the work of the Seminar through follow-on activities that will contribute to the effectiveness of the Human Rights Court.
IV. The Hague Seminar
The program at The Hague extended over four days. On the first day, September 9, 2003, the Indonesian judges attended the trial of Slobodan Milosevic. Observing actual courtroom proceedings proved invaluable to the Indonesian judges and provided a context for the theoretical discussions and the recommendations of the prior week. After each session, the judges and faculty discussed the relevance of the proceedings to their own experiences in Indonesia. The afternoon was devoted to briefings by the Registry as to its role and the functions of the court along with case management procedures.
The next day included presentations by the Office of the Prosecutor and the Registry concerning investigations, preparation for prosecution, legal aid for defense as well as support for witnesses and victims. The discussion of the preparation by the prosecution of its case especially impressed the judges. Attendance that day at a case management status conference in the Obrenovic case was also very helpful in highlighting a key weakness in the Indonesian criminal process that had been discussed in the Honolulu seminar (lack of pre-trial procedure and lack of case management status conferences).
On the third day, after visiting the ICJ in the morning, the group returned to the ICTY for a presentation by the Senior Legal Officers of Trial Chambers and the Appeals Chamber. The rest of the afternoon was devoted to an open round table discussion among the Indonesian judges and several ICTY judges. Topics discussed included the challenges in Indonesia of ad hoc judges, who are academics, working with career judges and how to deal with political pressure in high visibility cases. These sessions continued the dialogue begun in Hawaii among the Indonesian judges themselves. They learned that fellows jurists often experienced the same tensions they felt on the bench when dealing with human rights cases.
The Indonesian judges began the last day began by attending another hearing in the Milosevic case. Once again, the experience was extremely useful in refining and illustrating the process of evidentiary presentation and the interplay of the various ICTY procedural rules to make the process fairer, but also more efficient. This was helpful in reinforcing the Indonesian judges’ commitment to reform their procedures in accordance with the recommendations below. This session was followed by a presentation by a Legal Officer of the Chambers on the challenges for the chambers in handling high profile cases. This lead to a discussion of the issues the Indonesian judges confronted in their cases against the military. The afternoon was devoted to subsequent discussions with judges from the ICC and meetings with the ICC Registry and Office of the Prosecution. The discussions with ICC judges were candid and thoughtful. The ICC judges praised the Indonesian judges for their grasp of the subject matter, their identification of the challenges confronting them, and their commitment to work through those issues. For the Indonesian judges the discussions with their ICC colleagues was the highlight of the visit to The Hague and contributed to the new confidence with which they return to their duties in Jakarta.
V. Conclusions and Recommendations
1. Pre-trial Management
Recommendation: The Seminar recommends that panels of the Ad Hoc Human Rights Court (“Court”) use opportunities prior to open session to bring together Prosecution and Defense Counsel to discuss legal issues regarding the indictment and issues relating to the relevance of the dossier to the indictment. The judges of the Court should develop appropriate procedures based on their interpretation. There was discussion whether both Prosecution and Defense could be included in those contacts and whether ex parte contacts could be allowed.
Implementation: This recommendation comports with the existing authority of the judges of the Court. There is no need for legislative or procedural code changes to implement this recommendation. However, the Seminar recommends that over time this procedure should be included in official Supreme Court guidelines and manuals.
2. Rules of Evidence and Procedure
Recommendation: The Seminar recognized that omissions and ambiguities exist in the current procedural code. It is recommended that the judges of the Court exercise their authority to define or clarify ambiguous language and to fashion appropriate rules where none exist. In so doing, the judges may refer to the Rules of Evidence and Procedure of the international ad-hoc tribunals, International Criminal Court, and to international jurisprudence for guidance.
Implementation: This recommendation is within the existing authority of the Judges. There is no need for legislative or procedural code changes to implement this recommendation. However, it is recommended that the judges of the Court work together to draft a set of special rules on procedure and evidence for the Court using rules of the international tribunals as a model.
3. Elements of the Crimes and Bases of Criminal Liability
Recommendation: To ensure a fair and efficient trial, the Seminar recommends that the judges of the Court use elements of the crimes and bases of criminal liability as the legal framework for the trial. The elements should be agreed upon by the panel and provided to the parties early in the process. Where the elements are not clearly established in the law, the parties should be invited to submit their legal position on those elements. Ultimately, the authority and the duty to determine and apply the elements of the crimes and the bases of criminal liability rest with the judges.
Implementation: It is within the existing authority of the judges to interpret and apply the law. There is no need for legislative or procedural code changes to implement this recommendation.
4. Trial Proceedings
Recommendation: The judges of the Court have the authority and duty to direct and control the trial proceedings, including the power to control and, if necessary, to eject spectators and other persons from the courtroom in order to maintain dignity, security, and order in the courtroom. The Seminar recommends that the Human Right Courts be provided with adequate resources to ensure that this power can be exercised safely and effectively.
Implementation: Implementation of this recommendation is of paramount importance and should take place immediately.
5. Court Resources
Recommendation: The Court is in need of resources, including computers, software (e.g Casemap), and technical assistance. The Seminar recommends that the Indonesian government provide the Court with adequate recourses so that it may perform its work in a professional and timely manner.
Implementation: Implementation of this recommendation is of paramount