The Indonesian government’s efforts to counter and punish attacks such as the deadly assault in central Jakarta last week can only succeed if they strengthen respect for rights and rule of law, said the International Commission of Jurists (ICJ).
Eight people were killed, including four armed terrorist suspects, in an attack by armed men in central Jakarta on 14 January.
Indonesia’s National Counterterrorism Agency (BNPT) and the State Intelligence Agency (BIN) claimed that they lacked sufficient authority under the country’s existing Anti-Terrorism Law to stop the attacks.
“Plans discussed by Indonesian authorities to amend the 2003 Anti-Terrorism Law to make it ‘more effective’ in addressing terrorist threats mostly focus on weakening hard-won protections for suspects and the rule of law,” said Emerlynne Gil, ICJ’s Senior Legal Adviser for South East Asia.
“In order to help the Indonesian government meet its obligation to protect its people from acts of terrorism, experience from around the world and Indonesia’s Suharto era shows that security can only be achieved through justice,” she added.
The head of the national police, Gen. Badrodin Haiti, said that the Anti-Terrorism Law prevents police from prosecuting Indonesians returning home after allegedly serving as combatants in Syria.
One of the proposals is to give intelligence officers the authority to make arrests under the Anti-Terrorism Law.
“Giving intelligence officers the authority to make arrests will likely lead to an increase in violations of human rights,” said Gil.
“The roles of intelligence and of law enforcement are fundamentally different and need to remain separate,” she added.
The ICJ pointed out that there were not enough safeguards under Indonesia’s laws, specifically the State Intelligence Law, to ensure the accountability of the intelligence agency or its officers.
Another proposal is that authorities be given the power to arrest anyone they see as having a “strong indication” to be planning acts of terrorism.
The ICJ, however, observes that this proposal appears to allow Indonesian authorities to avoid judicial oversight so that it would be easier for them to arrest any person, irrespective of whether there is sufficient evidence of criminal activity or an intent to prosecute.
This proposal also appears to allow authorities to detain and interrogate persons suspected of involvement in terrorist acts with a view to gaining intelligence information without necessarily contemplating the filing of criminal charges.
As ICJ’s Eminent Jurists Panel on Terrorism, Counter-terrorism, and Human Rights has underscored, the practice of arrest and detention for the sole purpose of intelligence gathering may mean the arrest and detention of those “who are not necessarily criminal suspects, but who are also believed to have information that will ‘substantially’ assist the collection of intelligence relating to terrorism”.
Detaining people for the sole purpose of intelligence gathering in the absence of evidence of criminal activities is a form of arbitrary detention.
Such a practice can also lead to secret or unacknowledged detention, which under international law constitutes enforced disappearance and is absolutely prohibited, the Geneva-based organisation adds.
“The obligation to protect human rights and keep people safe from acts of terrorism are not at opposing poles,” said Gil. “They are complementary and mutually reinforcing duties of protection incumbent on the State.”
“In fact, protecting human rights can be an effective shield in defending societies from acts of terrorism,” she added.
All measures to counter terrorism must strictly comply with obligations Indonesia has under international law.