Subject: U.S.-RI Ties: Partners in Impunity?

Also: RI Hopes for Earlier Procurement of US Aircraft Spare Parts

U.S.-RI Ties: Partnerships on Impunity?

The Jakarta Post Friday, January 6, 2006

By Rafendi Djamin, Jakarta

On the eve of U.S. Secretary of State Condoleezza Rice's visit to Indonesia next week, it was challenging to read the article written by Eric G. John, U.S. deputy assistant secretary of state in the Bureau of East Asian and Pacific Affairs, on the strategic partnership between the U.S. and Indonesia (The Jakarta Post, Jan. 2-3).

This article focused on the question of whether double-standards in security sector reforms and human rights will be applied by the U.S. government in its changing view on Indonesia.

It not a coincidence that Gen. Endriartono, Indonesian Military (TNI) chief, stated that the ongoing reform within the TNI is not meant to please the U.S. government or Congress. Instead, it is part of the TNI's genuine commitment to be part of a new democratic Indonesia.

As stated in John's article, there has been a systematic effort since the U.S. imposed a military embargo on Indonesia to re-establish military-to-military cooperation between the countries.

One policy related to U.S. national interests is the foreign policy on the question of criminal impunity. The U.S. government has been consistently opposed to and has attacked the credibility of the Rome Statute for the establishment of International Criminal Court (ICC), which as of December 2005 has been ratified by 100 states. ICC is able to investigate and prosecute those individuals accused of crimes against humanity, genocide and crimes of war.

The U.S. government has launched a global campaign to put political and economic pressure on small and weak states which have not yet ratified the Rome Statute to instead ratify the so-called "Article 98" agreements.

These agreements are alternately referred to as "Article 98" agreements, bilateral immunity agreements (BIAs), impunity agreements or bilateral non-surrender agreements. Other instruments adopted by the U.S. Congress to undermine the ICC is legislation that restricts U.S. foreign assistance to countries that do not sign these bilateral immunity agreements and legislation that restricts foreign assistance to countries that do not sign bilateral ICC non-surrender agreements with the U.S.

The first piece of legislation adopted by the U.S. Congress, in August 2002, is known as the American Servicemembers Protection Act (ASPA). This legislation, also known as the "Hague Invasion Act", contains provisions restricting U.S. cooperation with the ICC; making U.S. support of peacekeeping missions largely contingent on achieving impunity for all U.S. personnel; and even granting the president permission to use "any means necessary" to free U.S. citizens and allies from ICC custody in The Hague.

The legislation, however, contains waivers that make all of these provisions non-binding, yet the Bush administration has not utilized these waivers and continues to pressure countries around the world to conclude bilateral immunity agreements -- or otherwise lose essential U.S. military assistance.

In December 2004, Congress subsequently adopted the Nethercutt Amendment, as part of the U.S. Foreign Appropriations Bill. This legislation is far more wide-reaching than the ASPA and authorizes the loss of economic support funds to all countries, including many key U.S. allies, which have ratified the ICC treaty but have not signed a bilateral immunity agreement with the U.S. While the President has the authority to waive the provisions of the amendment, it poses the threat of broad cuts in foreign assistance, including funds for cooperation in international security and terrorism, economic and democratic development, human rights and promoting peace processes.

The bilateral immunity agreement (BIA) provides: "When the United States extradites, surrenders, or otherwise transfers a person of Indonesia to a third country, the United States will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of Indonesia."

Moreover, it provides: "When the Government of the Republic of Indonesia extradites, surrenders, or otherwise transfers a person of the United States to a third country, the Government of the Republic of the Indonesia will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the United States."

The bilateral immunity agreement also defines "persons" as "current or former government officials, employees, including contractors, or military personnel or nationals of one party". This broad definition exempts the nationals of each country from possible prosecution through the ICC.

Although Indonesia has not signed the Rome Statute for the International Criminal Court, the Indonesian Ministry of Foreign Affairs claims the country has been active in all phases of deliberations on the Court and is still in the process of giving meticulous consideration to the Statute.

The government has reportedly committed to study the implications of the ICC, and will likely consider implementing legislation prior to accession. The Indonesian government set up a Human Rights Action Plan which includes overseeing consideration of the ICC. And in 2004 a presidential decree, No. 40/2004 on the national action plan of human rights 2004-2009, was issued, committing the government to ratifying the ICC by 2008

What are the implications for Indonesia?

If Condoleezza Rice urges President Susilo Bambang Yudhoyono to sign the "Article 98" agreements, it is clear that double-standards are being applied by the U.S. government on security sector reform and human rights. Supporting the process to achieve democratic oversight of the TNI, one main problem, among others, in security sector reform is the question of impunity within the TNI and the National Police.

On one side the U.S. supports the struggle for justice in the murder of rights activist Munir and justice for the victims of human rights violations in Timika, Papua, while on the other hand it insists on a policy of impunity from the Indonesian government.

For Indonesia, entering into this agreement, the government would violate its own presidential decree on the national action plan. Furthermore, the government would violate the provisions in the Law on Treaties which stipulate that ratification of treaties should be conducted by way of a law if they concern matters pertaining to politics, peace, defense, state security, human rights and the environment.

The Indonesian government must resist any political or economic pressure from the U.S. to sign this bilateral impunity agreement in order not to negate its international obligations under the Vienna Convention on the Law on Treaties.

This will show Indonesia is committed to protecting the rights of its citizens by providing access to an international court that can prosecute and penalize perpetrators of the gravest crimes of genocide, crimes against humanity, war crimes and, in the future, crimes of aggression.

The writer is the coordinator of the Human Rights Working Group's NGO Coalition for International Human Rights Advocacy. He can be reached at

RI Hopes for Earlier Procurement of US Aircraft Spare Parts

The Associated Press Friday, January 6, 2006

Jakarta: Indonesia hoped that the United States could speed up the sending of jetfighter spareparts which had been delayed under the recent US military embargo on Indonesia.

"In the wake of the lifting of the embargo, we have submitted a list of jetfighter spareparts," Director General for Defence Infrastructure at the Defence Ministry Rear Marshal Pieter Wattimena said here on Thursday.

In addition, he added, the Defence Ministry has formed a team to inspect the worthiness of the spareparts which broke down in some countries.

Pieter hoped that the visit of US Secretary of State Condoleezza Rice will expediate the process of spareparts procurement, so the Indonesian Air Force could immediately repair its broken jetfigheters gradually.

An F5 Tiger aircraft was withheld in the US, while F5 Tiger spareparts were in the US, Britain, Belgium, Brazil, South Korea, Malaysia and Singapore. Either F5 Tiger aircraft and its spareparts withheld in some countries belonged to the Indonesian Air Force.

In addition, such spareparts for F16 Fighting Falcons were also withheld in the US and South Korea. Hawk 109/209 spareparts were withheld in Britain and engine and spareparts of A4 Sky Hawks were still in New Zealand.

While pinning his hope on accelarated procurement of aircraft spareparts, Pieter expected that the US will give greater concession to the Indonesian military to develop into a strong force through facility of foreign military sales (FMS), foreign military financing (FMF) including international military educational and training (IMET) programs.

see also - U.S.-Indonesia Military Assistance pages

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