The executions of nine foreign nationals on death row in Indonesia for drug trafficking has resulted in massive international outcry, especially from one of its closest neighbors, Australia. This group included Myuran Sukumaran and Andrew Chan, who were caught smuggling drugs out of Indonesia in 2006.

Earlier this year, in January six people were executed, five of them foreigners, which strained diplomatic relations with Brazil and the Netherlands. These countries, along with Australia, have recalled their ambassadors from Indonesia. Indonesia’s President Joko Widodo, popularly known as Jokowi, rejected all clemency petitions for drug traffickers on death row.

Jokowi argues that Indonesia is in the midst of a national drug crisis and that the execution of drug offenders assists in deterring others, thus reducing the rate of deaths following illegal drug use. This issue has brought the international debate regarding the death penalty great media attention in recent months, and has resulted in diplomatic tension between Australia and Indonesia. This dispute arises largely from:

Indonesia’s claim of its sovereign right to execute drug smugglers,
whether these men received a fair trial,
and international law obligations.

However it has become clear that not only has the trial process been questionable, but also that Indonesia is arguably in violation of international law, namely the 1966 International Covenant on Civil and Political Rights.

Heightened tensions between Australian and Indonesia are not unusual, and most recently, these have been caused by asylum seeker and spying issues. However, the conditions surrounding this latest diplomatic quarrel could potentially result in more severe repercussions. This is due to the execution of two men who have demonstrated rehabilitation over the last nine years under questionable circumstances. I argue that the executions are not a question of Indonesia demonstrating its national sovereignty amidst international pressure, but a political ploy that is in violation of international law. I am not suggesting that Indonesia should not exercise its own laws, rather that these laws should be carried out with integrity and in conjunction with their international obligations.

The idea that executing drug offenders helps combat the drug problem in Indonesia, as claimed by Jokowi, is supported by dubious evidence. Jokowi recently declared that over four million Indonesians suffer from drug-related problems and that every day around 50 people die from the same problem. According to Jokowi, the application of a blunt, no-compromise approach is essential to combat this national emergency,. However, the statistics he cites that are repeated by various media outlets in Indonesia, are based on studies with problematic approaches and unclear measures. Claudia Stoicescu, from the University of Oxford, argues that the Indonesian government has selected specific figures that provide credibility and justify a futile deterrent but politically effective policy. To begin with, the number of drug victims mentioned above is a result of data extrapolated from a 2008 study jointly undertaken by the University of Indonesia (UI) and National Narcotics Agency (BNN). This number is a prediction rather than an actual estimation of the number of people who suffer from drug-related issues in Indonesia.[1]

The alleged number of people dying every day from drugs is also taken from the same study and was measured using unclear methodology. That number was not actually determined by recorded deaths, but was based on a survey of people questioned about drug deaths. This unreliable data collection methodology is used to justify the taking of human life. These faulty statistics along with Jokowi’s consistently blunt attitude towards not granting clemency demonstrates the underlying political motivations behind the executions.[2]

Jokowi has appeared increasingly weak since his presidency began (a fact his rival, Prabowo Subianto exploited in the last presidential election). His opposition argued that Jokowi would be no more than a puppet within his party, the Indonesian Democratic Party (PDI-P), and at the mercy of its leader Megawati Sukarnoputri. Thus, since coming to power, Jokowi has embraced a return to the previously suspended death penalty. Furthermore, Megawati appears to be pressuring him on the issue. This has resulted in humiliation in some cases; for example, he was pushed publicly on the issue at a party conference. Greg Fealy, an Indonesian scholar at the Australian National University, has said

“The politics is that death penalty is extremely popular in Indonesia, Jokowi is slipping in the polls, he’s desperate to turn it around, and of the available issues this is the most available on which he’s looking strong, according to most Indonesians.”[3]

This highlights the largely political nature of the executions and how their use is arguably a response to popularity in Indonesia. The executions also serve as a means for Indonesia to flex its diplomatic might against world powers through demonstrating “faux defiance,” even if it is at the expense of human life. This “faux defiance” was probably best exhibited during the prison transfer of Andrew Chan and Myuran Sukumaran to the prison where they were executed. This transfer was accompanied by an outrageous and unnecessary display of force that including commandos and jet fighters. Jokowi is willing to execute rehabilitated human beings as a response to a misconceived sense of his, and more broadly, Indonesian weakness.

This has been exacerbated by pressure from senior government officials and arguments from Indonesian legal academics that claim that Indonesia is simply exercising its sovereign right. According to Arie Afriansyah, a law lecturer at UI, international concern for the use of death penalty in Indonesia is unwarranted. He argues that Indonesia’s tough anti-drug stance should be maintained because it is Indonesia’s sovereign right, and its exercise of the death penalty does not contradict international law. State sovereignty engenders Indonesia with the right to make and apply its own laws without international intervention. This principle underpins international law, and how countries relate to one another. He also argues that Indonesia‘s use of the death penalty is in accordance with Article 6 Paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR), which states that countries can use the death penalty for the “most serious crimes in accordance with the law in force at the time of the commission of the crime.” Finally, Afriansyah claims “Indonesia provides all death row convicts equal opportunities to appeal.” However, Sukumaran and Chan’s trials did not follow due process, and drug smuggling arguably does not fall under “the most serious of crimes.”[4]

Don Rothwell, a law expert at ANU, argues that drug smuggling is definitely a serious crime but it does not fulfil the definition of “most serious crime.” It is important to bear in mind here that these men were bringing drugs out of Indonesia, not into Indonesia. The use of the death penalty in the context of the ICCPR is supposed to be a “quite exceptional measure,” not to he handed down lightly. Indonesia, as party to this treaty, should undertake its obligations in good faith. Aside from the fact that the punishment does not fit the crime, the nature of the trial process also contradicts Indonesia’s treaty obligations. Firstly, judges involved in the case have been accused of bribery allegations and secondly, the right to a pardon is supposed to be available to all. This was not abided by due to Jokowi’s “refusal to grant clemency without consideration of their circumstances.” [5]

This blanket approach to the death penalty contradicts Indonesia’s treaty obligations and highlights the political context surrounding the executions. Sukumaran and Chan’s executions were not merely a matter of Indonesia exercising its national sovereignty. Such a blanket approach can be seen as political ploy aimed more at combating Jokowi’s dwindling political position, rather than carrying out Indonesia’s treaty obligations with integrity. Australia is not challenging Indonesia’s sovereignty, but rather questioning whether international treaty obligations have been honoured. Jokowi was asked to use his power of clemency as it was clear that both Myuran Sukumaran and Andrew Chan demonstrated rehabilitation over the last ten years. It is highly tragic that these two men, and others in a similar situation, have been put to death simply to make a political point.

Sources

‘Law experts say Indonesian death penalty is illegal’ (ANU Newsroom, 27 April 2015), http://www.anu.edu.au/news/all-news/law-experts-say-indonesian-death-penalty-is-illegal

Hartcher, Peter. “Indonesian President Widodo under corrupt thumb of Megawati” Canberra Times, 28 April 2015

Afriansyah, Arie. “Indonesia does need the death penalty to deter drug traffickers.” The Conversation, 27 April 2015

Stoicescu, Claudia. “Indonesia uses faulty stats on ‘drug crisis’ to justify death penalty” The Conversation, 5 February 2015

Quiano, Kathy and McKirdy, Euan. “Australia lodges formal complaint over Bali 9 transfer,” CNN, 6 March 2015

[1]Stoicescu, Claudia. “Indonesia uses faulty stats on ‘drug crisis’ to justify death penalty” The Conversation, 5 February 2015

[2] Ibid

[3]Hartcher, Peter. “Indonesian President Widodo under corrupt thumb of Megawati” Canberra Times, 28 April 2015

[4]Afriansyah, Arie. “Indonesia does need the death penalty to deter drug traffickers.” The Conversation, 27 April 2015

[5]‘Law experts say Indonesian death penalty is illegal’ (ANU Newsroom, 27 April 2015), http://www.anu.edu.au/news/all-news/law-experts-say-indonesian-death-penalty-is-illegal