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

Last week, activists staged a protest at the National Human Rights Commission’s office, demanding the Commission deem the assassination of Munir Said Thalib, an Indonesian human rights activist, in 2004 a gross human rights violation, namely a crime against humanity. Similarly, on 8 December 2021, Munir’s family members and activists also organized a similar protest in front of the Commission’s office. Present in last year’s protest 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.

I am informed of at least twelve reports crimes against humanity reports committed by Indonesia, four of which are:

• 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.

All examples above occurred in multiple areas. Of the four, three cases bear one similarity: the victims and survivors amount to hundreds. The National Commission on Violence Against Women’s 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.

Against this background, can Munir’s assassination be deemed admissible as a crime against humanity, bearing in mind that it happened in one area and caused the death of one individual? Does size matter in determining crimes against humanity?

Crimes Against Humanity under International Jurisprudences

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, the wordings ‘widespread’ and ‘any civilian population’ need to be scrutinized. For the former, the use of the term ‘or’ indicates that it is sufficient that one of the conditions be met. One can refer to the International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber’s judgment on the Jadranko Prlić case, in which Paragraph 41 states, “the attack must be widespread or systematic. This requirement is in the alternative, rather than cumulative.” Alas, by virtue of the nature of the crime being organized and not random alone, i.e., systematicity, crimes against humanity can be determined.

For the latter, as stated within Paragraph 91 of the 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, implying that 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 in the Kunarac and Tadić cases imply that an attack on a single civilian cannot constitute crimes against humanity.

Nevertheless, the above-mentioned jurisprudences discuss the contextual element of crimes against humanity, i.e., the backdrop upon which an act was carried out. They do not talk about the act itself and its result, i.e., the physical element. Thus, one must look into Articles 7(1)(a)-(k) of the Rome Statute to understand the commission of an act that constitutes crimes against humanity. In Munir’s case, the physical element was an act of murder, which falls under Article 7(1)(a) of the Rome Statute. The ICC clearly states that one of the elements of crimes against humanity of murder is when the perpetrator “killed one or more person.” Such was hinted in ICTY Trial Chamber’s judgment on the Kupreškić case, in which singular nouns were used across Paragraph 560 when the judgment declares,

“The constituent elements of murder under Article 5(a) of the Statute are well known. They comprise the death of the victim as a result of the acts or omissions of the accused, where the conduct of the accused was a result of the acts or omissions of the accused, where the conduct of the accused was a substantial cause of the death of the victim. It can be said that the accused is guilty of murder if he or she engaging in conduct which is unlawful, intended to kill another person or to cause this person grievous bodily harm, and has caused the death of that person [Bold added].”

Thus, if one refers Munir’s assassination to the ICC, previous jurisprudences have shown that Munir’s assassination fulfills the elements of systematicity, directed toward a civilian population, and killed a civilian. Hence, Munir’s assassination may be considered a crime against humanity.

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 will now refer to Indonesia’s domestic laws and regulations on the matter.

Crimes Against Humanity under Law 26/2000 on Human Rights Court

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, particularly regarding the physical element of crimes against humanity.

The official translation of 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.” The term ‘any civilian’ is essential for it suggests that, for instance, the systematic targeting of even a single individual may constitute crimes against humanity. Automatically, therefore, the physical element of crimes against humanity, such as the crimes against humanity of murder stipulated under Article 9(a) of Law 26/2000, which caused the death of one individual (or more), may amount to crimes against humanity.

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. According 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 this year.

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 systematicity element of crimes against humanity as stipulated under the Rome Statute and 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.