The Unintended Consequences of Amending Indonesia’s Anti-Terrorism Law

Editor’s Note: Indonesia has suffered repeated attacks from the Islamic State and other terrorist groups as its democracy struggles to stay robust. The last round of violence has led to proposed legislation that would broaden the crackdown on suspected terrorists. Julie Chernov Hwang of Goucher College argues that Indonesia's efforts to get tough are likely to backfire. Not only will they set back human rights in Indonesia, but they are likely to make the long-term terrorism problem worse.

***

Earlier this year, the Indonesian parliament began considering amendments to the 2003 anti-terrorism law in response to the January 2016 Starbucks bombing in Jakarta’s Thamrin business district, the Kampung Melayu bus station attack, and the successes of the Islamic State-inspired Maute group, particularly their attack on the town of Marawi in the Philippines. While the death toll from the Kampung Melayu and Starbucks attacks has been low—with casualty rates in the single digits—Philippine military sources put the number of dead in Marawi at 500 militants, 114 government forces, and 45 civilians as of August 1, 2017. This news is alarming to Indonesian security officials, as Marawi is becoming a new front for Indonesian jihadists and the steady drumbeat of new small scale attacks shows that the problem cannot be ignored.

The law is expected to be up for a vote in late 2017 or early 2018. However, several of the proposed amendments, if passed, would represent a gross overreach that could have serious consequences for Indonesian democracy, stability, and standing as a nation that respects human rights. They could also be counterproductive. The plans might exacerbate a pre-existing problem in Indonesia—the radicalization of prisoners—by providing a steady stream of curious youths arrested for possession of literature or speeches by radical figures into prisons ill equipped to handle them.

In July 2017, the Jokowi administration issued a decree streamlining the process for banning organizations that do not adhere to the 1945 constitution and the Indonesian national ideology of Pancasila—a general set of principles including humanitarianism, social justice, unity in diversity, monotheism, and democracy via deliberation and consensus. The combined powers of the decree and these new amendments would set up the infrastructure to allow for a broad crackdown on Islamist, paramilitary, and secessionist groups. While this might sound like a good idea, it is likely to alienate and possibly radicalize groups that currently do not utilize violence in pursuit of their goals.

Possession and Dissemination of Materials

One particular area of debate is Article 13A of the proposed law. The original draft of the revisions criminalized “individuals who deliberately disseminate speeches, thoughts, behaviors, or writings that could lead others to commit violence, anarchy and other actions which adversely impact other people/communities or degrade certain individual or community’s dignity through intimidation, which leads to terrorism crimes.” Conviction would result in a 3-12 year prison term. The extremely vague language on community dignity in the amendment was troubling to some on the legislative committee and, as a result, the most recent mock-up of the bill struck the dignity provision in favor of more carefully targeting writing, speech, behavior or thoughts that could incite violence. However, this is not a settled issue and the discussion between those who favor the expansive dignity provision and those who prefer the more narrowly targeted incitement provision is still ongoing.

The assumption that mere possession of writings or speeches calling for violence could lead someone to commit a crime of terrorism is belied by the reality. In fact, many of those individuals who participated in acts of terrorism in the past in Indonesia typically underwent periods of study, vetting, indoctrination, preparation, and training before participation. While some pro-Islamic State cells have been more expedient, indoctrinating via Telegram and, in so doing, identifying suitable people for recruitment, there is little evidence that criminalizing speech or writings will solve the problem effectively. For example, Dian Yulia Novi, an aspiring suicide bomber charged in the foiled December 2016 attack on the presidential palace, was radicalized online while working as a maid in Taiwan through Facebook and Telegram. While authorities can certainly monitor the Facebook sites, it may prove more difficult for them to identify individual participants in chats on Telegram, the Islamic State’s SIS-encrypted app of choice.

Since the prison system does not typically separate hardcore terrorists from their followers and the general population, it can be relatively easy for violent terrorist offenders to radicalize ordinary prisoners or individuals who to that point had been only sympathizers.

Additionally, should this article be passed, especially in its original form, Indonesian prisons would be ill equipped to cope with such a surge of people convicted on “terrorism”-related crimes, overcrowded and underfunded as they are. They already struggle to handle the terrorist prisoners they have. Since the prison system does not typically separate hardcore terrorists from their followers and the general population, it can be relatively easy for violent terrorist offenders to radicalize ordinary prisoners or individuals who to that point had been only sympathizers. Such an upsurge in people convicted for minor offenses like possession or dissemination of materials would add further additional challenges, for it would creating an alienated community ripe for radicalization when met by real terrorists in prison, who could recruit them into actual terrorist groups.

Detention

The proposed amendments would make significant changes to Indonesia’s detention policies. A revision to Article 25, referred to as Pasal Guantanamo, stipulates that, for investigatory purposes, a suspect could be “held for a maximum of 180 days.” It would also extend the length of pre-trial detention from one day to two weeks, according to the latest draft. Moreover, as Human Rights Watch notes, the “total length of permissible detention of terrorism suspects from arrest through trial to final appeal would nearly double from the current maximum of 401 days to 781.”

This would represent a gross breach of human-rights norms by itself, and it could enable further abuses. In terrorism cases, it has been common for Indonesian authorities to employ torture during interrogation to secure cooperation. These new amendments could embolden authorities to use torture more indiscriminately, more viciously, and for longer periods of time.

A Renewed Military Role

Another area of concern is Article 43B in the revised legislation, which would give the military a role in combatting terrorism alongside the police. This has been long sought by the military and long resisted by the police. Not only is it at odds with the role of a military in a democracy as a protector against external threats, the expertise on combatting terrorism in Indonesia lies solidly with the police, particularly the police anti-terrorism team, Detachment 88 (Densus 88).

Pressure for the military to take this new role is coming from the president himself. However, this move has serious implications for Indonesia’s ability to fight terrorism going forward. Journalists and activists fear it could lead toward more repressive measures employed in fighting terrorism. Moreover, the military has little familiarity with the rules of the Indonesian judicial system, has been known for perpetuating gross human-rights abuses, and lacks the sheer corpus of knowledge regarding Indonesian terrorism that the police has been building for the past decade and a half.

Rather than embolden the military, the law would be better served by addressing shortcomings in the disengagement and deradicalization efforts by Indonesian authorities. Another proposed amendment to the law stipulates that the policies and strategies for fighting terrorism should cover “prevention, protection, curbing radicalization and prosecution.” However, nowhere does it address the importance of facilitating disengagement or reintegration of terrorists after completion of prison terms. This is a serious oversight. Effective aftercare is a critical component of preventing recidivism. This not only includes monitoring but also offering life-skills training and professional development programs, both in and after prison, as well as counseling to rebuild frayed family ties.

Stripping of Citizenship

Another area of concern is a sentence in Article 12B that would authorize the Indonesian government to strip citizenship from Indonesians who have been involved in terrorism, paramilitary or military training, or foreign wars. With the establishment of near-abroad training grounds for new pro-Islamic State militants in the Southern Philippines, it is understandable why Indonesia would feel the need to take action. However, stripping citizenship would be a step too far.

The proposed policy appears to be based on an assumption that someone who joins in paramilitary training, a foreign conflict, or an act of terrorism has committed an act of treason and, by that logic, is irredeemable. They can never become a productive member of society. However, evidence from past militant threats, including the Jemaah Islamiyah terrorist network, shows this is not the case. There are indeed current and former members of Islamist extremist groups who fought in Afghanistan or Mindanao, participated in a paramilitary training, or even assisted in a terror attack, who went on to successfully reintegrate back into society. For example, Ali Fauzi, a veteran of the Mindanao conflict, former member of Jemaah Islamiyah, and former trainer with the militant group Mujahidin KOMPAK, could have had his citizenship stripped under this law. But, since returning from the Philippines, where he hid from 2002 to 2006 after his half-brothers’ involvement in the first Bali bombing, he returned to school, received a degree in Islamic education from Muhammadiyah University, and became a university lecturer. He has started his own mutual aid society in the town of Lamongan to assist Afghan and Mindanao veterans. And he has assisted the Indonesian Anti-Terrorism Bureau (BNPT) in their counter-radicalization initiatives through his participation in workshops and public-speaking engagements.

Instead of facilitating the reintegration of disillusioned jihadists, it deprives all of citizenship, rendering all effectively stateless.

Stripping the citizenship of those who go to fight in a foreign war effectively criminalizes the act of participation in a jihad to defend oppressed Muslims in foreign lands. This would alienate Muslim constituencies, who see jihad in a legitimate field of battle as something positive, and would communicate to Indonesians who wish to participate in jihad: You do not belong here. The law could also be applied too broadly; it conflates those who go to follow a spouse, children, or a sibling with those who go on their own volition already having bought into the takfiri perspective. Moreover—with regard to Syria, specifically—it does not distinguish between those who go to join the Islamic State or Hayet Tahrir al-Sham (formerly Jabhat al-Nusra), quickly become disillusioned, and seek to return home and those who become true believers in the Islamic State or al-Qaeda’s mission and vision. Instead of facilitating the reintegration of disillusioned jihadists, it deprives all of citizenship, rendering all effectively stateless.

Finally, as Andreas Harsono, researcher with Human Rights Watch, notes, withdrawing citizenship runs counter to the principles of international law. “The Universal Declaration of Human Rights in article 15 provides that everyone has a right to a nationality and no one will be arbitrarily deprived of that nationality. The International Covenant on Civil and Political Rights (ICCPR,) which Indonesia has ratified, states in article 12: ‘No one shall be arbitrarily deprived of the right to enter his own country,’” he writes. Passing the citizenship-stripping amendment into law would be a gross infringement on human rights outside the standards for international norms.

In short, the current draft of the revised anti-terrorism law contains amendments that could have an effect opposite to what Indonesian government officials and legislators intend. Instead of curbing terrorism, it could turn individuals only curious about extremist ideology into hardcore terrorists by flooding prisons with people arrested on a possession of materials charges. By allowing lengthy sentences without charge and empowering the military, the law could embolden authorities to make wider use of torture, which could further radicalize at-risk people against the state and the security apparatus. And by permitting authorities to strip the citizenship of those involved in terrorism, paramilitary activities, and jihad, it assumes that none of these individuals could make a worthwhile contribution to the Indonesian nation and cuts off their ability to disengage and reintegrate into society. If passed, it would make Indonesia more, not less, susceptible to terrorism—and at the expense of human rights and basic political freedoms.