No Compromise: Drug Crimes and the Death Penalty in Indonesia

By: Liana Solot

Brazilian citizen Marco Archer Cardoso Moreira, fifty-three years old, was executed by firing squad on January 17, 2015 in Indonesia, along with five others, all of who were convicted of drug trafficking—all but one were foreigners. Moreira was convicted and sentenced to death for smuggling cocaine in 2004. Despite the many cries and attempts by the Brazilian government to start a dialogue with the Indonesian government, Moreira became the first Brazilian citizen to be executed abroad. Moreira’s lawyer said that Indonesia denied requests to extradite Moreira to allow him to serve a prison sentence in Brazil, since capital punishment is not permitted under Brazilian law.

Indonesia has extremely strict drug laws and the new government has a firm commitment to fight drug-related crimes. Attorney General Muhammad Prasetyo stated that these laws are “merely aimed at protecting their nation from the danger of drugs” as forty to fifty people die each day from drugs in the country. According to a report submitted to the UN Human Rights Committee by Indonesia in 2012, “[t]he issue of death penalty, as part of Indonesian Penal System, has been subject of robust debates among various groups in the community.” In 2007, the Constitutional Court conducted a constitutional review of the death penalty law and held that the death penalty provision in Law No. 22 of 1997 on Narcotics was not contradictory to the 1945 Constitution. Thus, the provision was maintained.   Further, Indonesian President Joko Widodo recently said, “We are not going to compromise for drug dealers. No compromise. No compromise.”

Brazilian President Dilma Rousseff personally appealed to President Widodo to spare the life of Moreira, but the Indonesian president was not moved by the case. He believes that the executions are an “important shock therapy” in his country’s fight against illegal drugs, and rejected any cries for clemency despite additional pleas from the European Union, Australia, and Amnesty International. President Rousseff was outraged that the sentence was carried out, according to an official statement from her press office. Along with Moreira, the execution of Dutch citizen Ang Kiem Soei on the same weekend incited an indignant diplomatic reaction: Brazil and the Netherlands withdrew their ambassadors from Indonesia.

International Law Standards of Treatment and Diplomatic Protection

In addition to being one of the top social network discussions for weeks in Brazil, this case raised important and controversial international law and human rights questions. Under international law, there are two perspectives of how a country should treat foreigners in its territory. One is that, according to the principle of equality, a host government should, within recognized limits, treat aliens in the same way as it would treat its own nationals. Another view is that there is an international minimum standard of treatment that needs to be respected; a threshold below which no civilized nation should cross. However, this remains deeply controversial: an individual who lives in a foreign country is expected to abide by the laws of the host State, yet, when that person is injured, she is free to seek diplomatic protection from her State of nationality. So should foreigners be entitled to the “best of both worlds”? Should they be treated equally when travelling or conducting businesses in a foreign country, but when adverse events occur, should they be entitled to special protection?

In this case, considering the global tendency against the death penalty and the growing consensus among UN members that it should not be enforced, especially for drug-related crimes, it can be argued that imposing the death penalty on foreigners violates the international minimum standard of treatment. And, under the system of diplomatic protection, the individual must first exhaust the mechanisms available in the state where he was injured before seeking an international remedy, in which his country of citizenship then decides whether to espouse his case. In this case, however, the methods for internal recourse were exhausted, Moreira was entitled to due process, and, despite diplomatic dialogue attempts by the Brazilian government, international bodies do not have jurisdiction to intervene in the sovereign state. Thus, while it seems that the international minimum standard of treatment might have been violated, Brazil cannot, under the system of diplomatic protection, intervene in the criminal proceedings.

Human Rights Treaties and the Death Penalty in Indonesia

In spite of numerous treaties, universal human rights standards are precarious when it comes to their incorporation into domestic legal system: countries will recognize international legal duties only to a comfortable limit. Human Rights organizations in Brazil, like Conectas Direitos Humanos, vigorously condemned the execution. The main argument is that Indonesia has signed and ratified a series of international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which provides that the death penalty can only be enforced for “the most serious crimes”. Crimes that typically qualify include those that result in death or serious bodily harm. The Office of the High Commissioner of Human Rights (OHCHR) spokesperson, Ravina Shamdasani, stated, “According to international human rights jurisprudence, capital punishment could only be applied to the crime of murder or intentional killing.” Further, UN Secretary-General Ban Ki-moon has stated that “the death penalty has no place in the 21st century”, which reflects a global human rights trend away from capital punishment.

According to Human Rights Watch, President Widodo wasted an opportunity to demonstrate wise leadership by joining the growing number of countries that have abolished capital punishment and considered its application in drug-trafficking offenses “particularly odious”. Executive Director of Amnesty International Brazil, Mr. Atila Roque, agreeing with Human Rights Watch, said, “Indonesia takes a huge retrograde step for human rights. The death penalty violates human dignity, degrades justice and moves closer to a state of savagery”.

On the other hand, Moreira and the other prisoners cannot be seen as innocent victims. They knew of the risks ex ante, knew they were committing a very serious crime under the laws of that country, and, even then, decided to take the risk, blatantly disrespecting the laws of that country. According to an official statement by President Widodo’s government, “Indonesia is a sovereign State, with an impartial and independent judicial system, and no foreign State can intervene in the enforcement of its laws within its jurisdiction, including the enforcement of laws regarding drug trafficking.” Indonesia’s foreign minister said that the executions are not meant to single out the citizens of a particular country, “the issue is purely law enforcement by a sovereign country.”

There is no question that Moreira and the other foreigners committed severe crimes and should be punished, however, the proportionality of that punishment is debatable. If a State is a member of the UN and has signed and ratified an international treaty that prohibits capital punishments, except for the most serious crimes, and, if drug trafficking is not included in that list, it would be a violation of its obligations under international law. Indeed, the UN Human Rights Committee’s 2013 report on Indonesia regretted that death sentences are still imposed by courts for drug crimes, which do not meet the threshold of the “most serious crimes” and recommends that the State party should consider abolishing the death penalty or, if it is maintained, Indonesia should “review its legislation to ensure that crimes involving narcotics are not amenable to the death penalty.”

As is usually the case with international law, the constant challenge is how to enforce norms universally, considering different cultures, values, and domestic legal systems. The death penalty is considered a proportional punishment for drug trafficking in Indonesia and other countries; the same punishment can only be enforced in other countries for the crime of murder or intentional killing, while other nations have abolished capital punishment entirely or expressly forbid it under their domestic constitutions. Accommodating such disparate domestic legal systems seems impossible, but a UN member state that agrees to an international law treaty is expected to respect its provisions. According to ICCPR Article 41, Brazil could bring a request to the UN to investigate the human rights practices of Indonesia, who is also a State party, yet this procedure has never been actually invoked as a human rights enforcement mechanism. In addition, the ICCPR’s 1976 Optional Protocol allows individuals to directly file human rights complaints with the UN Human Rights Committee and the second Optional Protocol in 1996 aims specifically at the abolition of the death penalty. However, although Indonesia became a state party to the ICCPR in 2006, the country did not sign or ratify the first or the second optional protocols, allowing no such recourse for Moreira or the other convicted individuals.

More Executions Postponed, For Now

Aside from Moreira, a second Brazilian citizen, Rodrigo Gularte, convicted for smuggling cocaine in surfboard bags in 2004, is among a second group of eleven prisoners on death row to be executed soon in Indonesia. Due to diplomatic pressure, especially from Brazil and Australia, the executions have been postponed, but officials say the delay is only temporary. Adding an additional layer of complexity to the situation, Gularte has been diagnosed as mentally ill and, under Article 44 of the Indonesian penal code, a person who has a mental disorder cannot be criminally liable. However, further medical examinations are being conducted and the final decision is still uncertain. This tension has placed bilateral relations on hold and may affect international trade between the two countries. The next diplomatic measures remain to be seen in the coming weeks, while the enforcement and adherence to international law standards remains uncertain in the near future.

Liana Solot is an L.L.M. Candidate at Berkeley Law. She is a student contributor for Travaux.

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