Prevent new Military Discipline Law from leading to impunity

Amid recent debates on the controversial Regional Elections Law, the House of Representatives passed the Military Discipline Law to replace the 1997 Discipline in the Indonesian Military (TNI) Law.

The government said the law was the right response to several cases of indiscipline, especially last year’s attack on a police detention center in Cebongan, Yogyakarta, by members of the Army’s Special Forces (Kopassus).

Instead of continuing to discuss amendments to the 1997 law regarding military courts, the government insists that discipline is the primary problem facing the TNI.

The bill on military tribunals should be deliberated again by the legislature, given the many problems of military members involved in crimes. The Cebongan case was just one example where the perpetrators should have been tried in a civilian court for premeditated murder, as their actions had nothing to do with military duty, let alone a combat situation.

The debate to amend the law on military courts was tough since the government was reluctant to accept the principle of civilian supremacy in legal justice, where TNI members who breach a general criminal law would be tried in the general justice system.

From 2005 to 2009, particularly during the deliberations on the military court bill at the legislature, the Defense Ministry continued to buy time to retain supremacy over the military court in the event of defendants being military members, including the mechanism of the connectivity court where the panel of judges trying military defendants for general crimes comprises military and civilian judges.

In the end, the House of Representatives’ special commission on the bill amending the military courts law failed.

The law on military discipline is thus a compromise. It should be followed by further rules on the acts categorized as breaching military discipline. What is also an urgent need is an enforcing mechanism, including procedures on punishment, complaints and reparations and internal and external supervision to enact the law.

It is a must that the armed forces be a disciplined institution. Their members are entitled to carry lethal weapons and also receive more specific training than anyone in civilian institutions.

But the borderline between merely breaking discipline and conducting crimes is unclear and this gray area often provides an exit strategy that saves military personnel from legal prosecution.

Military discipline emphasizes the conduct of military members and governs relations between superiors and subordinates — obedience forms the core of military discipline. Problems mostly arise when subordinates must carry out orders without the right to question the legality of those orders, while they cannot have immunity from crimes on the basis of following orders. If a superior’s order causes a crime, this would involve command responsibility.

There are two kinds of command responsibility, first de jure, which focuses on the formal executive structure or the authority creating the relevant policy. Secondly, de facto responsibility, which focuses on the commander’s ability and duty to have effective control over every act carried out by subordinates.

The commander thus must prevent or punish any breach involving subordinates.

Rule 153 of the Customary International Humanitarian Law also clearly states that in armed conflict, commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent the crimes and to punish the persons responsible. This customary law was already adopted by the Nuremberg Tribunals held to bring justice to Nazi war criminals and by today’s International Criminal Court.

Despite its limitations the procedural regulations of the military discipline law should maintain transparency and fairness, given that frequently punishments for both breaches of discipline and crimes are only issued to field commanders.

In the new law the superior officer has wide authority: first, to conduct or order an investigation into the conduct of a subordinate, second, to implement disciplinary sentences to each member under his or her command and third, to delay the implementation of a sanctioned disciplinary decision. Moreover, the superior can reduce punishments.

The principle of military necessity is often used to protect members, blurring the enforcement of discipline, which should be based on military necessity for the sake of state defense.

This principle is also recognized in international humanitarian law; it has mostly been invoked by military operators to justify violent measures deemed necessary to win a given conflict, a reasoning dismissed by critics as a typical military excuse to explain away shocking “collateral damage” in modern military operations.

The principle is a further rationale against legal investigation and punishment of military members to avoid the exposure that is claimed to endanger military secrecy or other military positions.

Furthermore, a superior can also delay investigation or punishment for a perpetrator whose ability is considered vital to military operations.

The new law has adopted an Advisory and Supervisory Council for Military Discipline, an ad hoc institution crucial to monitoring and supervising military discipline enforcement. The council should have equal composition of membership and leadership by military officers and civilians. Furthermore, this council should apply equal rights to both high ranking officers and non-commissioned personnel.

During the New Order, an officers’ honorary council was established to investigate high and middle ranking officers and to punish them with administrative measures, but ranks from field officers to non-commissioned personnel were tried in the military court.

The council was set up in the notorious case of the forced disappearances of 1998 that involved the army elite special forces, Tim Mawar (Rose Team).

The high ranking officers, notably the then Kopassus chief Prabowo Subianto, were never prosecuted and tried for their individual criminal responsibility before a court of law.

The new law on military discipline needs further monitoring to ensure the law fulfills its purpose, which is to build a disciplined and professional national defense force and prevent prolonged impunity.

Bhatara Ibnu Reza
A PhD candidate with the Faculty of Law, University of New South Wales in Sydney, Australia researching military politics and international humanitarian law; He is also a researcher for human rights watchdog Imparsial, an NGO that led the advocacy for the amendment of the military trial law

JAKARTA POST,  06 Oktober 2014

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