Does Size Matter?: Crimes Against Humanity and Munir’s Assassination

Yesterday, family members of Munir Said Thalib, an Indonesian human rights activist assassinated in 2004, and activists organized a protest in front of the National Human Rights Commission’s (Komnas HAM) office. Present in attendance were Suciwati (Munir’s widow), Diva Suukyi Larasati (Munir’s daughter), Usman Hamid (Amnesty International Indonesia’s Executive Director), Fatia Maulidiyanti (Commission for the Disappeared and Victims of Violence’s Coordinator), myself, and many others. The protest, organized in concurrence with Munir’s birthday, demanded Komnas HAM to conclude the assassination as a gross human rights violation, particularly crimes against humanity.

Now, I am informed of at least four reports about crimes against humanity committed by Indonesia:

• Gender-based crimes against humanity during the 1965–1966 massacre;
• Crimes against humanity during Indonesia’s occupation and invasion of East Timor from 1975 to 1999;
• Crimes against humanity in the form of the enforced disappearance of pro-democracy activists between 1997 and 1998; and
• Crimes against humanity perpetrated during the Trisakti, Semanggi I, and Semanggi II (TSS) shootings between 1998 and 1999.

Of the four cases mentioned above, three cases bear one similarity: the victims and survivors amount to hundreds. The National Commission on Violence Against Women’s (Komnas Perempuan) report was based on interviews with 122 victims, survivors, and witnesses of rape and other sexual assaults from 1965 to 1966. Reports on East Timor concluded that Indonesia is responsible for at least 100,000 deaths “out of a population of less than one million,” according to the International Center for Transitional Justice (ICTJ). Similarly, reports on TSS state that around 1,000 people were killed or injured. Only the enforced disappearance cases showed an ‘anomaly,’ with the victims being ‘only’ at least 24 people.

Nevertheless, this phenomenon begs the question: does size matter in determining crimes against humanity? Can, for example, a State-sponsored, systematic murder of one person amount to crimes against humanity? Can Munir’s assassination be deemed admissible as crimes against humanity?

Crimes Against Humanity under the Rome Statute

Under Article 7 of the Rome Statute of the International Criminal Court (ICC), crimes against humanity is defined as “acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Various elements within the clause could help us understand what crimes constitute crimes against humanity. However, when one questions the size of affected people, the term ‘civilian population’ needs to be scrutinized. As stated within Paragraph 91 of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeal Chamber’s judgment on the Kunarac case, in determining whether a crime is directed towards a civilian population, one needs to consider “the status of the victims, [and] their number,” among other things. Thus, size does matter. However, the Appeal Chamber’s judgment still does not answer the following question: how big?

Paragraph 90 of the same judgment on the Kunarac case notes, “It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.” Paragraph 644 of the ICTY Trial Chamber’s judgment on the Tadić case states, “[…] the “population” element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity.” Therefore, judgments on the Kunarac case and the Tadić case show that an attack on a single civilian cannot constitute crimes against humanity.

Consequently, if one refers Munir’s assassination to the ICC, previous jurisprudences have shown that although Munir’s assassination may fulfill the elements of ‘systematic attack’ towards a civilian, it may not be considered as crimes against humanity by virtue of the number of the victim alone.

Nevertheless, the fact that Indonesia is not a State Party to the Rome Statute renders all efforts to bring Munir’s case to the ICC obsolete. Therefore, I now will refer to Indonesia’s domestic laws and regulations on the matter.

Law 26/2000 on Human Rights Court: A Lower Threshold, A Blessing in Disguise

In Indonesia, crimes against humanity is defined under Law 26/2000 on Human Rights Court. Although some argue that the clause replicates Article 7 of the Rome Statute, I will say that it is not. Article 9 of Law 26/2000 defines crimes against humanity as “any action that is deliberately committed as part of a widespread or systematic attack directed against any civilian.” It is clear that the expression used to define the victims in the Rome Statute and Law 26/2000 is different: ‘civilian population’ for the former and ‘civilian’ for the latter. The use of the word ‘population’ under the Rome Statute implies that victims must be plural, as emphasized in the Kunarac case and the Tadić case. However, Law 26/2000’s use of the term ‘civilian’ suggests that crimes against humanity may occur regardless of the number of the victim. As such, a case like Munir’s assassination may amount to crimes against humanity under Law 26/2000.

Furthermore, the difference of terms indicates that the Rome Statute has a higher threshold than Law 26/2000. This is because under Rome Statute, for an act to be considered crimes against humanity, size matters. Whereas, under Law 26/2000, size does not play an integral part. As such, it is easier (hence, the threshold is lower) to consider an act as crimes against humanity under the auspices of Law 26/2000.

Why Is It Important to Deem Munir’s Assassination as Crimes Against Humanity

Currently, Munir’s assassination is considered a crime of premeditated killing, which falls under the jurisprudence of Indonesia’s Penal Code. The impact is twofold. First, according to experts, the Penal Code could only prosecute field perpetrators on an individual basis. As a result, only one individual was convicted of murder in Munir’s case, the late Pollycarpus Priyanto, an off-duty pilot responsible for poisoning Munir with arsenic in the victim’s flight to the Netherlands, and sentenced to 20 years in prison. Secondly, like other Penal Codes in other countries, there is a statute of limitation. Accordint to Article 78(4) of the Penal Code, in the case of a crime in which the perpetrator was charged with capital punishment or a lifetime sentence, the case expires 18 years after the perpetrator committed the act. In Munir’s case, Pollycarpus was charged with a lifetime sentence, and, as such, the statute of limitation was calculated from the day the attack was carried out in 2004; hence the case will expire in 2022.

Nevertheless, considering Munir’s assassination only as an ordinary crime is insufficient. For instance, the murder allegedly involved other intellectual perpetrators, such as a former Senior Official of the National Intelligence Agency (BIN), Muchdi Purwopranjono. Moreover, it also involved members of the State-owned airline company Garuda Indonesia, such as Indra Setiawan (former CEO) and Rohainil Aini (former Secretary). As such, the assassination fulfilled the ‘systematic attack’ element of crimes against humanity as stipulated in Law 26/2000.

Consequently, by deeming Munir’s assassination as crimes against humanity, Article 46 of Law 26/2000 states, “For massive human rights violations as referred to in this Law there is no provision for expiration.” Therefore, there will be more time for law enforcement authorities to criminally prosecute at least the most responsible for Munir’s killing, a duty stipulated under Article 42 of Law 26/2000.