Talking about counterterrorism in times of crisis
Over the past few weeks, the long-spun controversy surrounding the role of the Indonesian military (TNI) in dealing with the phenomenon of domestic “terrorism” has entered a new phase.
The issue resurfaced when the Indonesian government, through its Ministry of Law and Human Rights, submitted a draft Presidential Regulation (Perpres) to the island country’s legislature (DPR) for review on May 4.
Despite the important criticism that has already been voiced against it, the timing of this draft raises concerns about a lack of oversight and insufficient options for civil society consultations prior to and during legislative negotiations.
The need for a Perpres sprung from the 2018 revision of Indonesia’s Anti-Terrorism Law. While Article 43 I of this Law No.5/2018 had formally sanctioned the TNI’s role in counterterrorism as part of military operations other than war (OMSP), it mandated Perpres to sort out the details of this arrangement.
Although much-anticipated, the current 15-article long draft regulation has drawn the ire of human rights groups and organisations. Initially, they were hoping Perpres could set boundaries and formulate clear accountability mechanisms for the TNI’s involvement in dealing with terrorist violence. Instead, this draft would allow the military to expand its influence over a hitherto civilian-led domain substantially.
Rather than lending it a supporting role in assisting the police as the primary law enforcement agency, the draft Perpres proposes a threefold engagement of the military in counterterrorism, promising authority in the areas of operations, deterrence and recovery.
Conveniently, the same three functions had previously been bestowed upon the Armed Forces Special Operations Command, whose revival by presidential regulation No.42 in mid-2019 was not without controversy. A continuation of the suspended Joint Special Operations Command, this new joint unit is likely to become the TNI’s executive agent should the draft Perpres go unchallenged.
Shortly after its announcement, the draft Perpres was met by fierce opposition from members of the Indonesian public. A coalition of civil society organisations issued a joint statement, which criticised the proposed mandate for the TNI as too “broad and excessive”.
The military’s role in domestic counterterrorism should not exceed that of an assisting force, which can be brought in to complement law enforcement capacities when necessary, the statement writes. An independent function, as proposed by the draft Pepres, is regarded as highly problematic for law enforcement and human rights.
Concurrently, such authority over areas typically controlled by the police would not be accompanied by an obligation to submit to the general justice system and consequently lacks a clear civilian-led accountability mechanism. Indonesia has previously been criticised for its numerous failures to hold human rights abusers accountable through its military justice system. At the same time, a bleak human rights record by the police’s own counterterrorism unit, Detachment 88, suggests that the legal framework alone does not guarantee a transformation of counterterrorism conduct and an end to impunity.
The coalition further noted the elimination of an important mutual control mechanism put in place by the Law No.34/2004, or “TNI Law”, which stipulates that any military involvement in OMSP requires consultation between the president and the DPR. Based on the draft Perpres, this decision would be left to the sole executive authority of the president.
Given this independence and lack of oversight, another criticism points towards the possible overlap of tasks and responsibilities among security institutions. This could fuel competition between the National Police (Polri) and TNI, which had intensified after their formal parting in 1999. With the armed forces excluded from internal security issues, many of its lucrative business opportunities had been removed. As a result, economic disputes with the police often ended in violent clashes in the immediate years after Indonesia’s democratic opening.
Over the past five years, the two agencies have increasingly seen their historic rivalry play out in the realm of counterterrorism. Lessons from an ongoing joint military-police counterterrorism campaign in Poso in Central Sulawesi indicate what renewed competition could entail for law enforcement practices going forward. The Operation Tinombala aims to eliminate the militant group Mujahidin Indonesia Timur (MIT), which was founded by Abu Wardah, alias Santoso, and has been carrying out attacks, mainly against Indonesian security forces, since 2012.
Albeit often praised as a success story for the capture and killing of many MIT members, a “lack of clarity” in the setup of this operation is said to have led to competition between the two security forces. This may have directly hampered their operational success and caused the operation to be extended several times, resulting in unknown figures in operation costs.
Given the apparent inability to break the chain of violence and terror in Poso — as evidenced by a recent upsurge in violence — and continued community support for the MIT, a critical assessment of the mission’s alleged success seems appropriate.
While there are good reasons to demand an optimised strategy for dealing with militant groups that use terrorist tactics, the reservations mentioned above about an independent role of the armed forces in counterterrorism do address important points that ought to be debated extensively and openly by the public at large.
However, it is questionable, whether the current coronavirus disease 2019 (Covid-19) pandemic provides the right conditions for effective parliamentary negotiations on such an important issue or for allowing any inclusive debate that involves segments from all parts of society.
The virus does not do away the need for good governance — on the contrary. Terrorist attacks have proven to continue to pose a threat to human security in times of Covid-19. However, their current scale does not suggest an imminent threat to the country’s national security or sovereignty. Hence, in the current situation, there seems to be little justification for advancing legislative changes related to counterterrorism that could have far-reaching implications for the fabric of civil-military relations in Indonesia.
At an international level, the United Nations General Assembly has recently adopted a decision to postpone negotiations as part of this year’s review of the Global Counter-Terrorism Strategy, which provides biennial recommendations to members states on how to respond to “terrorism”. Citing the “unprecedented technical and logistical challenges” posed by the pandemic, the UN General Assembly suspended any further negotiations until mid-September.
In contrast, in recent weeks, the crisis seems to have been used by Indonesian lawmakers as an opportunity to speed up the passing of several controversial laws at the national level. Instead of continuing on this path, the government should take notice of the UN General Assembly’s decision and lead with good example — not least because of its current seating in the UN Security Council — by also postponing the negotiations on the draft Presidential Regulation until it can ensure an adequate debate and sufficient consultation within parliament as well as with civil society actors.
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