Follow-up: State Reporting - CAT

INDONESIA

Follow-up - State Reporting

i) Action by Treaty Bodies

CAT, A/63/44 (2008)

...

CHAPTER IV. FOLLOW‑UP ON CONCLUSIONS AND RECOMMENDATIONS

ON STATES PARTIES REPORTS

46. In this chapter, the Committee updates its findings and activities that follow‑up on the conclusions and recommendations adopted under article 19 of the Convention, in accordance with the recommendations of its Rapporteur on Follow‑Up to Country conclusions. The Rapporteur=s activities, responses by States parties, and the Rapporteur=s views on recurring concerns encountered through this procedure are presented below, and updated to through May 2008, following the Committee=s fortieth session.

47. In chapter IV of its annual report for 2005‑2006 (A/61/44), the Committee described the framework that it had developed to provide for follow‑up subsequent to the adoption of the conclusions and recommendations on States parties reports submitted under article 19 of the Convention. It also presented information on the Committee=s experience in receiving information from States parties from the initiation of the procedure in May 2003 through May 2008.

48. In accordance with rule 68, paragraph 2, of the rules of procedure, the Committee established the post of Rapporteur for follow‑up to conclusions and recommendations under article 19 of the Convention and appointed Ms. Felice Gaer to that position. As in the past, Ms. Gaer presented a progress report to the Committee in May 2008 on the results of the procedure.

49. The Rapporteur has emphasized that the follow‑up procedure aims Ato make more effective the struggle against torture and other cruel, inhuman and degrading treatment or punishment@, as articulated in the preamble to the Convention. At the conclusion of the Committee=s review of each State party report, the Committee identifies concerns and recommends specific actions designed to enhance each State party=s ability to implement the measures necessary and appropriate to prevent acts of torture and cruel treatment, and thereby assists States parties in bringing their law and practice into full compliance with the obligations set forth in the Convention.

50. In its follow‑up procedure, the Committee has identified a number of these recommendations as requiring additional information specifically for this procedure. Such follow‑up recommendations are identified because they are serious, protective, and are considered able to be accomplished within one year. The States parties are asked to provide within one year information on the measures taken to give effect to its follow‑up recommendations which are specifically noted in a paragraph near the end of the conclusions and recommendations on the review of the States parties= reports under article 19.

51. Since the procedure was established at the thirtieth session in May 2003, through the end of the fortieth session in May 2008, the Committee has reviewed 67 States for which it has identified follow‑up recommendations. Of the 53 States parties that were due to have submitted their follow‑up reports to the Committee by 16 May 2008, 33 had completed this requirement (Albania, Argentina, Austria, Azerbaijan, Bahrain, Bosnia and Herzegovina, Canada, Chile, Czech Republic, Colombia, Croatia, Ecuador, Finland, France, Georgia, Germany, Greece, Guatemala, Hungary, Republic of Korea, Latvia, Lithuania, Monaco, Morocco, Nepal, New Zealand, Qatar, Russian Federation, Sri Lanka, Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America and Yemen). As of 16 May, 20 States had not yet supplied follow‑up information that had fallen due (Bulgaria, Burundi, Cambodia, Cameroon, Democratic Republic of the Congo, Denmark, Guyana, Italy, Japan, Luxembourg, Mexico, Moldova, the Netherlands, Peru, Poland, South Africa, Tajikistan, Togo, Uganda and Ukraine). In March 2008, the Rapporteur sent a reminder requesting the outstanding information to each of the States whose follow‑up information was due in November 2007, but had not yet been submitted, and who had not previously been sent a reminder.

52. The Rapporteur noted that 14 follow‑up reports had fallen due since the previous annual report.³ However, only 2 (Hungary and the Russian Federation) of these 14 States had submitted the follow‑up information in a timely manner. Despite this, she expressed the view that the follow‑up procedure had been remarkably successful in eliciting valuable additional information from States on protective measures taken during the immediate follow‑up to the review of the periodic reports. While comparatively few States had replied precisely on time, 25 of the 33 respondents had submitted the information on time or within a matter of one to four months following the due date. Reminders seemed to help elicit many of these responses. The Rapporteur also expressed appreciation to non‑governmental organizations, many of whom had also encouraged States parties to submit follow‑up information in a timely way.

53. Through this procedure, the Committee seeks to advance the Convention=s requirement that Aeach State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture Y@ (art. 2, para. 1) and the undertaking Ato prevent Y other acts of cruel, inhuman and degrading treatment or punishment Y@ (art. 16).

54. The Rapporteur expressed appreciation for the information provided by States parties regarding those measures taken to implement their obligations under the Convention. In addition, she has assessed the responses received as to whether all the items designated by the Committee for follow‑up (normally between three and six recommendations) have been addressed, whether the information provided responds to the Committee=s concern, and whether further information is required. Each letter responds specifically and in detail to the information presented by the State party. Where further information has been needed, she has written to the concerned State party with specific requests for further clarification. With regard to States that have not supplied the follow‑up information at all, she requests the outstanding information.

55. At its thirty‑eighth session in May 2007, the Committee decided to make public the Rapporteur=s letters to the States parties. These would be placed on the web page of the Committee. The Committee further decided to assign a United Nations document symbol number to all States parties= replies to the follow‑up and also place them on its website (http://www2.ohchr.org/english/bodies/cat/sessions.htm).

56. Since the recommendations to each State party are crafted to reflect the specific situation in that country, the follow‑up responses from the States parties and letters from the Rapporteur requesting further clarification address a wide array of topics. Among those addressed in the letters sent to States parties requesting further information have been a number of precise matters seen as essential to the implementation of the recommendation in question. A number of issues have been highlighted to reflect not only the information provided, but also the issues that have not been addressed but which are deemed essential to the Committee=s ongoing work, in order to be effective in taking preventive and protective measures to eliminate torture and ill‑treatment.

...

58. The chart below details, as of 16 May 2008, the end of the Committee=s fortieth session, the state of the replies with respect to follow‑up.

_______________________

3/ Official Records of the General Assembly, Sixty‑second Session, Supplement No. 44 (A/62/44).

Follow‑up procedure to conclusions and recommendations

from May 2003 to May 2008

...

Fortieth session (May 2008)

State party

Information

due in

Information received

Action taken

...

Indonesia

May 2009

...

CAT, A/64/44 (2009)

IV. FOLLOW UP ON CONCLUDING OBSERVATIONS ON STATES PARTIES REPORTS

53. In this chapter, the Committee updates its findings and activities that follow‑up to concluding observations adopted under article 19 of the Convention, in accordance with the recommendations of its Rapporteur on follow‑up to concluding observations. The Rapporteur's activities, responses by States parties, and the Rapporteur's views on recurring concerns encountered through this procedure are presented below, and updated through 15 May 2009, following the Committee's forty‑second session.

54. In chapter IV of its annual report for 2005‑2006 (A/61/44), the Committee described the framework that it had developed to provide for follow‑up subsequent to the adoption of the concluding observations on States parties reports submitted under article 19 of the Convention. It also presented information on the Committee's experience in receiving information from States parties from the initiation of the procedure in May 2003 through May 2009.

55. In accordance with rule 68, paragraph 2, of the rules of procedure, the Committee established the post of Rapporteur for follow up to concluding observations under article 19 of the Convention and appointed Ms. Felice Gaer to that position. As in the past, Ms. Gaer presented a progress report to the Committee in May 2009 on the results of the procedure.

56. The Rapporteur has emphasized that the follow up procedure aims "to make more effective the struggle against torture and other cruel, inhuman and degrading treatment or punishment", as articulated in the preamble to the Convention. At the conclusion of the Committee's review of each State party report, the Committee identifies concerns and recommends specific actions designed to enhance each State party's ability to implement the measures necessary and appropriate to prevent acts of torture and ill‑treatment, and thereby assists States parties in bringing their law and practice into full compliance with the obligations set forth in the Convention.

57. In its follow‑up procedure, the Committee has identified a number of these recommendations as requiring additional information specifically for this procedure. Such follow‑up recommendations are identified because they are serious, protective, and are considered able to be accomplished within one year. The States parties are asked to provide within one year information on the measures taken to give effect to its follow‑up recommendations which are specifically noted in a paragraph near the end of the conclusions and recommendations on the review of the States parties' reports under article 19.

58. Since the procedure was established at the thirtieth session in May 2003, through the end of the forty‑second session in May 2009, the Committee has reviewed 81 States for which it has identified follow up recommendations. Of the 67 States parties that were due to have submitted their follow up reports to the Committee by 15 May 2009, 44 had completed this requirement. As of 15 May 2009, 23 States had not yet supplied follow up information that had fallen due. The Rapporteur sends reminders requesting the outstanding information to each of the States whose follow up information was due, but had not yet been submitted, and who had not previously been sent a reminder. The status of the follow‑up to concluding observations may be found in the web pages of the Committee (http://www2.ohchr.org/english/bodies/cat/ sessions.htm).

59. The Rapporteur noted that 14 follow up reports had fallen due since the previous annual report. However, only 4 (Algeria, Estonia, Portugal and Uzbekistan) of these 14 States had submitted the follow up information in a timely manner. Despite this, she expressed the view that the follow up procedure had been remarkably successful in eliciting valuable additional information from States on protective measures taken during the immediate follow up to the review of the periodic reports. One State party (Montenegro) had already submitted information which was due only in November 2009. While comparatively few States had replied precisely on time, 34 of the 44 respondents had submitted the information on time or within a matter of one to four months following the due date. Reminders seemed to help elicit many of these responses. The Rapporteur also expressed appreciation to non governmental organizations, many of whom had also encouraged States parties to submit follow up information in a timely way.

60. Through this procedure, the Committee seeks to advance the Convention's requirement that "each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture Y" (art. 2, para. 1) and the undertaking "to prevent Y other acts of cruel, inhuman and degrading treatment or punishment Y" (art. 16).

61. The Rapporteur expressed appreciation for the information provided by States parties regarding those measures taken to implement their obligations under the Convention. In addition, she has assessed the responses received as to whether all the items designated by the Committee for follow up (normally between three and six recommendations) have been addressed, whether the information provided responds to the Committee's concern, and whether further information is required. Each letter responds specifically and in detail to the information presented by the State party. Where further information has been needed, she has written to the concerned State party with specific requests for further clarification. With regard to States that have not supplied the follow up information at all, she requests the outstanding information.

62. At its thirty eighth session in May 2007, the Committee decided to make public the Rapporteur's letters to the States parties. These would be placed on the web page of the Committee. The Committee further decided to assign a United Nations document symbol number to all States parties' replies to the follow up and also place them on its website (http://www2.ohchr.org/english/bodies/cat/sessions.htm).

63. Since the recommendations to each State party are crafted to reflect the specific situation in that country, the follow up responses from the States parties and letters from the Rapporteur requesting further clarification address a wide array of topics. Among those addressed in the letters sent to States parties requesting further information have been a number of precise matters seen as essential to the implementation of the recommendation in question. A number of issues have been highlighted to reflect not only the information provided, but also the issues that have not been addressed but which are deemed essential to the Committee's ongoing work, in order to be effective in taking preventive and protective measures to eliminate torture and ill treatment.

...

65. The chart below details, as of 15 May 2009, the end of the Committee's forty‑second session, the state of the replies with respect to follow up.

Follow‑up procedure to conclusions and recommendations from May 2003 to May 2009

...

Fortieth session (May 2008)

State party

Information

due in

Information received

Action taken

...

Indonesia

May 2009

Not received

...

CAT, A/65/44 (2010)

Chapter IV. Follow-up to concluding observations on States parties= reports

65. In this chapter, the Committee updates its findings and activities that constitute follow-up to concluding observations adopted under article 19 of the Convention, in accordance with the procedure established on follow-up to concluding observations. The follow-up responses by States parties, and the activities of the Rapporteur for follow-up to concluding observations under article 19 of the Convention, including the Rapporteur=s views on the results of this procedure, are presented below. This information is updated through 14 May 2010, the end of the Committee=s forty-fourth session.

66. In chapter IV of its annual report for 2005-2006 (A/61/44), the Committee described the framework that it had developed to provide for follow-up subsequent to the adoption of the concluding observations on States parties reports submitted under article 19 of the Convention. In that report and each year thereafter, the Committee has presented information on its experience in receiving information on follow-up measures taken by States parties since the initiation of the procedure in May 2003.

67. In accordance with rule 68, paragraph 2, of the rules of procedure, the Committee established the post of Rapporteur for follow-up to concluding observations under article 19 of the Convention and appointed Ms. Felice Gaer to that position. In November 2009 and May 2010, the Rapporteur presented a progress report to the Committee on the results of the procedure.

68. At the conclusion of the Committee=s review of each State party report, the Committee identifies concerns and recommends specific measures to prevent acts of torture and ill-treatment. Thereby, the Committee assists States parties in identifying effective legislative, judicial, administrative and other measures to bring their laws and practice into full compliance with the obligations set forth in the Convention.

69. In its follow-up procedure, the Committee has identified a number of these recommendations as requiring additional information within one year. Such follow-up recommendations are identified because they are serious, protective and are considered able to be accomplished within one year. The States parties are asked to provide information within one year on the measures taken to give effect to the follow-up recommendations. In the concluding observations on each State party report, the recommendations requiring follow-up within one year are specifically identified in a paragraph at the end of the concluding observations.

70. Since the procedure was established at the thirtieth session in May 2003, through the end of the forty-fourth session in May 2010, the Committee has reviewed 95 reports from States parties for which it has identified follow-up recommendations. It must be noted that periodic reports of Chile, Latvia, Lithuania and New Zealand have been examined twice by the Committee since the establishment of the follow-up procedure. Of the 81 States parties that were due to have submitted their follow-up reports to the Committee by 14 May 2010, 57 had completed this requirement. As of 14 May 2010, 24 States had not yet supplied follow-up information that had fallen due: Republic of Moldova, Cambodia, Cameroon, Bulgaria, Uganda, Democratic Republic of the Congo, Peru, Togo, Burundi, South Africa, Tajikistan, Luxembourg, Benin, Costa Rica, Indonesia, Zambia, Lithuania (to the 2009 concluding observations), Chad, Chile, Honduras, Israel, New Zealand, Nicaragua and the Philippines.

71. The Rapporteur sends reminders requesting the outstanding information to each of the States for which follow-up information is due, but not yet submitted. The status of the follow-up to concluding observations may be found in the web pages of the Committee at each of the respective sessions. As of 2010, the Committee has established a separate web page for follow-up (http://www2.ohchr.org/english/bodies/cat/follow-procedure.htm).

72. Of the 24 States parties that did not submit any information under the follow-up procedure as of 14 May 2010, non-respondents came from all world regions. While about one-third had reported for the first time, two-thirds were reporting for a second, third or even fourth time.

73. The Rapporteur expresses appreciation for the information provided by States parties regarding those measures taken to implement their obligations under the Convention. In addition, she has assessed the responses received as to whether all the items designated by the Committee for follow-up (normally between three and six recommendations) have been addressed, whether the information provided responds to the Committee=s concern, and whether further information is required. Each letter responds specifically and in detail to the information presented by the State party. Where further information has been needed, she has written to the concerned State party with specific requests for further clarification. With regard to States that have not supplied the follow-up information at all, she requests the outstanding information.

74. At its thirty-eighth session in May 2007, the Committee decided to make public the Rapporteur=s letters to the States parties which are posted on the web page of the Committee. The Committee further decided to assign a United Nations document symbol number to all States parties= replies to the follow-up and also place them on its website.

75. Since the recommendations to each State party are crafted to reflect the specific situation in that country, the follow-up responses from the States parties and letters from the Rapporteur requesting further clarification address a wide array of topics. Among those addressed in the letters sent to States parties requesting further information have been a number of precise matters seen as essential to the implementation of the recommendation in question. A number of issues have been highlighted to reflect not only the information provided, but also the issues that have not been addressed but which are deemed essential to the Committee=s ongoing work, in order to be effective in taking preventive and protective measures to eliminate torture and ill-treatment.

76. Among the Rapporteur=s activities in the past year, have been the following: attending the inter-committee meetings in Geneva where follow-up procedures were discussed with members from other treaty bodies, and it was decided to establish a working group on follow-up; addressing the Committee on the Elimination of Discrimination against Women at its August 2009 meeting in New York concerning aspects of the follow-up procedure; assessing responses from States parties and preparing follow-up letters to countries as warranted and updating the information collected from the follow-up procedure.

77. Additionally, the Rapporteur initiated a study of the Committee=s follow-up procedure, beginning with an examination of the number and nature of topics identified by the Committee in its requests to States parties for follow-up information. She reported to the Committee on some preliminary findings, in November 2009 and later in May 2010, and specifically presented charts showing that the number of topics designated for follow-up has substantially increased since the thirty-fifth session. Of the 87 countries examined as of the forty-third session (November 2009), one to three paragraphs were designated for follow-up for 14 States parties, four or five such topics were designated for 38 States parties, and six or more paragraphs were designated for 35 States parties. The Rapporteur drew this trend to the attention of the members of the Committee and it was agreed in May 2010 that, whenever possible, efforts would henceforth be made to limit the number of follow-up items to a maximum of five paragraphs.

78. The Rapporteur also found that certain topics were more commonly raised as a part of the follow up procedure than others. Specifically, for all State parties reviewed since the follow-up procedure began, the following topics were most frequently designated:

Ensure prompt, impartial and effective investigation(s) 76 per cent

Prosecute and sanction persons responsible for abuses 61 per cent

Guarantee legal safeguards 57 per cent

Enable right to complain and have cases examined 43 per cent

Conduct training, awareness-raising 43 per cent

Ensure interrogation techniques in line with the Convention 39 per cent

Provide redress and rehabilitation 38 per cent

End gender-based violence, ensure protection of women 34 per cent

Ensure monitoring of detention facilities/visit by independent body 32 per cent

Carry out data collection on torture and ill-treatment 30 per cent

Improve condition of detention, including overcrowding 28 per cent

79. In the correspondence with States parties, the Rapporteur has noted recurring concerns which are not fully addressed in the follow-up replies and her concerns (illustrative, not comprehensive) have been included in prior annual reports. To summarize them, she finds there is considerable value in having more precise information being provided, e.g. lists of prisoners, details on deaths in detention and forensic investigations.

80. As a result of numerous exchanges with States parties, the Rapporteur has observed that there is need for more vigorous fact-finding and monitoring in many States parties. In addition, there is often inadequate gathering and analysing of police and criminal justice statistics. When the Committee requests such information, States parties frequently do not provide it. The Rapporteur further considers that conducting prompt, thorough and impartial investigations into allegations of abuse is of great protective value. This is often best undertaken through unannounced inspections by independent bodies. The Committee has received documents, information and complaints about the absence of such monitoring bodies, the failure of such bodies to exercise independence in carrying out their work or to implement recommendations for improvement.

81. The Rapporteur has also pointed to the importance of States parties providing clear-cut instructions on the absolute prohibition of torture as part of the training of law-enforcement and other relevant personnel. States parties need to provide information on the results of medical examinations and autopsies, and to document signs of torture, especially including sexual violence. States parties also need to instruct personnel on the need to secure and preserve evidence. The Rapporteur has found many lacunae in national statistics, including on penal and disciplinary action against law-enforcement personnel. Accurate record keeping, covering the registration of all procedural steps of detained persons, is essential and requires greater attention. All such measures contribute to safeguard the individual against torture or other forms of ill-treatment, as set forth in the Convention.

82. The chart below details, as of 14 May 2010, the end of the Committee=s forty-fourth session, the replies with respect to follow-up. This chart also includes States parties= comments to concluding observations, if any.

Follow-up procedure to concluding observations from May 2003 to May 2010

...

Fortieth session (May 2008)

State party

Information

due in

Information received

Action taken

...

Indonesia

May 2009

Reminder

...

Follow-up - State Reporting

ii) Action by State Party

CAT CAT/C/GC/2002/1 (2002)

Comments by the Government of Indonesia on the concluding comments of the Committee of the Convention Against Torture

1. Beginning with the Committee's remarks under paragraph 9 (i) and 10 (m) to the effect that cooperation with the United Nations Transitional Administration in East Timor (UNTAET) is inadequate, the Permanent Mission would like to emphasize that a number of exchanges have in fact been taking place between the Government of Indonesia and UNTAET for some time. In this regard, a major example of cooperation is the Joint Border Committee, which was established in September 2000 to build and foster good relations between Indonesia and East Timor and to further the normalization of activities along their common border, including refugee issues such as movements of people, pensions and compensation. The Joint Border Committee, which has just concluded its third meeting on 21 November 2001 in Dili, comprised a delegation of 50 people from both countries and was conducted in a climate of friendly and constructive cooperation. In the words of Joséé Ramos Horta, "the two sides have been working hard for the past two years in addressing the issues of common interest and have made real progress".

2. Furthermore, on 26 June 2001 Indonesia and UNTAET signed an agreement on an investigation into the July 2000 killing of United Nations peace keeper Leonard Manning in Suai, East Timor, in a skirmish with Indonesian militiamen. The two sides were represented by the head of the West Timor Prosecutor's Office and provincial police chief (for Indonesia) and by the East Timor Attorney-General (for UNTAET) and agreed to facilitate and expedite investigation of the case by questioning witnesses and suspects. In a separate development, the two countries decided to allow the East Timor Attorney-General's Office to question nine key witnesses in Indonesia, including several high-ranking Indonesian Military (TNI) officers, in connection with the killing of five Australian journalists on 16 October 1976.

3. In a further move to promote closer ties between Indonesia and East Timor, a delegation led by UNTAET chief Sergio Viera de Mello met with House Speaker Akbar Tandjung and Assembly Speaker Amien Rais earlier this year, and was attended by legislators of Commission I for Defence, Security and Foreign Affairs. More recently still, as the Committee against Torture was convening in Geneva, Mr. Longuinhos Monteiro, the Prosecutor-General of UNTAET, was simultaneously visiting Jakarta for talks with high-ranking Indonesian officials. Indeed, on 20-21 November, Mr. Monteiro, accompanied by Mr. Marco Kalbush, from the UNTAET serious crime unit in Dili, met respectively with the Attorney-General, the Minister for Justice and Human Rights and the Director of the narcotics department of the Indonesian police, with a view to discussing legal matters and establishing cooperation links between East Timor and Indonesia.

4. Mr. Monteiro and the Attorney-General reviewed a number of issues ranging from the prosecution of the murderers of two United Nations officials working in East Timor, to the current status of the Memorandum of Understanding on legal matters signed in April 2000, and the stepping up of exchanges of legal information through regular visits. Breakthroughs were achieved in numerous areas, notably with regard to the case of the murder of Netherlands journalist Sander Thoenes, on which the decision was made to send to Dili a joint team of investigators from the Attorney-General's Office, Komnas HAM and the Netherlands police, in order to research the case more thoroughly. Moreover, UNTAET and Indonesia are pursuing the possibility of recruiting Indonesian lawyers to hear cases involving former militia members. Finally, the desire to strengthen mutual legal cooperation between them was expressed, as well as the promise to initiate a series of talks involving the Attorney-General and UNTAET, with the first of these scheduled to take place in Indonesia in January 2002.

5. Mr. Monteiro's meeting with the Indonesian Minster of Justice and Human Rights elicited assurances from both sides to resurrect training programmes for East Timorese judges and legal advisers, given that both countries use the same legal system. Further negotiations, relating both to the status of East Timorese citizens and to immigration matters, are also due to take place soon. In this regard, the Government of Indonesia and UNTAET have in the past conducted meetings under the aegis of the Joint Border Committee to debate questions relating to border security; cross-border police cooperation; the demarcation and regulation of the border between the Republic of Indonesia and the independent State of East Timor; and the cross-border movement of people and goods.

6. Meanwhile, discussions between the representatives of UNTAET and the Director of the narcotics department of the Indonesian police focused on the urgent need to combat drug trafficking on both sides of the border through mutual and regular exchanges of information and by using international help to break cross-border networks. Indonesia and UNTAET are also considering the possibility of training East Timorese police officers in prevention techniques to fight drug smuggling.

7. It is hoped that these clarifications will reassure the Committee that all is being done to cooperate fully with UNTAET and show that, contrary to the impression gained by the Committee, cordial and cooperative ties are in fact being cultivated between the Indonesian authorities and UNTAET officials in order to facilitate the latter's work and promote greater professionalism on the Indonesian side.

8. On the topic of the appointment of ad hoc court judges, the Government of Indonesia is on the verge of designating 60 career and non-career judges to permanent and ad hoc courts set up to try human rights cases. They will commence work after attending a six-day course on human rights issues and will sit in permanent human rights courts established in Jakarta, Surabaya, the North Sumatran capital of Medan and the South Sulawesi capital of Makassar. Half the nominations represent non-career judges who are experts from human rights study centres at major State universities. Although this action on the Government's part represents a milestone event, there are nevertheless a number of obstacles which remain to be overcome. These include the formulation of trial procedure codes for human rights tribunals and courts, as well as remedying the career judges' lack of prior experience in trying human rights cases.

9. Moving on to another important issue raised, namely the trafficking of women and children, this emotional issue is a complex problem in Indonesia because of the acute poverty in which many people still live and is therefore difficult both to monitor and eradicate completely. Nevertheless, this is an issue which is particularly close to the heart of the Indonesian President and which, as a woman, she feels compelled to address. Indeed, President Megawati Soekarnoputri recently referred to this problem when speaking at the annual session of the People's Consultative Assembly (MPR) on 1 October 2001. Moreover, the National Commission for Women (Komnas Perempuan) has proposed the establishment of a special task force consisting of representatives of various agencies, such as local administrations, police, experts, activists and the Ministry of Foreign Affairs, to tackle the matter. The latest annual session of MPR endorsed this same idea and recommended that the Government establish a task force and ratify the 1949 United Nations convention on human trafficking.

10. In a similar vein, the House of Representatives (DPR) has begun deliberations on the child protection bill, detailing the obligations of parents, families, the community and the Government towards children, which was drafted in March 2001 by a group of legislators. The bill comprises 13 chapters and 67 articles and requires the establishment of regional-based commissions for the legal projection of children. It should be recalled that Indonesia ratified ILO Convention 182 on the Worst Forms of Child Labour in March 2000 and that at present, child protection is regulated by Laws No. 4/1979 on Children's Health and No. 33/1999 on Human Rights and by several international conventions also ratified by Indonesia.

11. Turning now to a number of human rights incidents which have been handled by the military courts, including the Trisakti shootings, the Permanent Mission of Indonesia would like to bring the following to the Committee's attention. On 12 May 1998 security personnel opened fire on students demonstrating in front of the Trisakti University campus, West Java, resulting in the death of four demonstrators. Nine police officers were subsequently tried for violating article 338 of the Criminal Code on premeditated murder and article 351 line (3) on assault leading to death. The sentences handed down in August 1998 by the military court were widely considered to be unjustifiably lenient. However, it was argued that due to the prosecutors' failure to decide whether the bullets belonging to the defendants had in fact caused the student deaths, there was insufficient proof to call for tougher sentences. Since then and following a public outcry, the National Human Rights Commission (Komnas HAM) has reopened the cases and begun new investigations into this fatal shooting, as well as into similar incidents which occurred in Semanggi. Although the deadline for completing the investigations has lapsed, the proceedings have been carried over into January 2002 due to the complicated nature of the cases, which are not only interlinked but also have a bearing on two other incidents, notably the May riots and the kidnapping of activists in 1998. Komnas HAM is therefore re-examining evidence linking to troop mobilization and to the bullets used to shoot the protestors, as well as summoning for questioning any senior military officials who were in charge at the time.

12. The Permanent Mission of Indonesia regrets the doubt expressed by the Committee in paragraph 8 (c) of its conclusions and recommendations as to whether the Indonesian National Commission on Human Rights (Komnas HAM) is sufficiently impartial or independent. On the contrary, Komnas HAM, in its preliminary inquiries under the mandate given to it by the Law on Human Rights Courts, has on a number of occasions denounced abuses which have taken place in Indonesia and which have not been punished adequately. In this regard, the reputation for independence of Komnas HAM is illustrated most notably by this body's various initiatives in East Timor. Indeed, the Permanent Mission of Indonesia would like to recall that it was on the strength of the investigations carried out by a Committee of Inquiry (KPP HAM) set up by Komnas HAM, that the Attorney-General's Office conducted formal probes into five human rights incidents which occurred both before and after the 1999 ballot, namely: the 6 April massacre in Lequica; the 17 April killings at independence leader Manuel Carrascalao's house; the 5 September attack on the compound of the Catholic Diocese in Dili; the 6 September massacre of priests and displaced persons at a church in Suai; the 21 September killing of Netherlands Journalist Sander Thoenes. In its report submitted to the Attorney-General on 31 January 2000 listing the names of 33 suspects, Komnas HAM implicated a number of senior officers of the Indonesian Military (TNI) and of the Indonesian police, some of whom are still on active duty. Another example of Komnas HAM's independence of action is the condemnation by its Commission of Inquiry into Human Rights in Irian Jaya of the December 2000 attacks carried out by police at six separate locations in Abepura. In its report, KPP HAM named 21 police officers suspected of being the direct perpetrators of crimes against humanity and 4 senior police officials responsible through the chain of command for these gross violations.

13. At this point, a consideration on which a number of comments were raised should be examined, in particular the question of acting under orders from a superior. In this regard, the following information may be useful for the Committee to understand not only the "lenient" sentencing in some of the cases mentioned above, but also the concept of criminal responsibility addressed in article 2 of the Convention against Torture. In international law, the so-called "commander's responsibility" is a precept which places full responsibility on the commanding officer for any crimes or violations which may have occurred as a result of his orders or negligence. A commander must be responsible - this is the principle invoked, amongst others, in the report of the Investigating Committee on Human Rights Violations in East Timor in order to incriminate a number of generals assigned to East Timor before and after the self-determination ballot. Nevertheless, the military court, with its competence based on the perpetrator rather than the act committed, has proven to be a very effective mechanism for the enforcement of hierarchical obedience and military discipline.

14. In contrast to military law, Indonesian civil law adopted the concept of vicarious liability long ago, including that of military commanders and superiors. However, court proceedings involving military and police officers are subject to Law No. 31/1997 on Military Courts, which does not specifically insist on the principle of "commander's responsibility." Thus, in certain instances of human rights violations in Indonesia, such as the Trisakti, Semanggi and Bantaqiah cases, field officers have been made to bear the full brunt of blame for these events, while military and police commanders escaped prosecution.

15. In a bid to realign Indonesian legal practice on international standards, Law No. 26/2000 on Human Rights, which explicitly adopts the principle of "commander's responsibility", was ratified in November 2000. Article 42 (1) of Law No. 26/2000 states that:

"A military commander, or a person effectively acting as a military commander, shall be responsible for any crimes that come within the jurisdiction of the Human Rights Court and which were committed by forces under this effective command and control, or effective authority and control as the case may be, as a result of his failure to exercise proper command over the forces, namely:

(a) the military commander Y knew or, under the circumstances at the time, should have known that the forces Y were committing serious human rights violations; and (b) the military commander Y did not take the proper and necessary action within its power to prevent or to halt the action or to deliver perpetrators to the authorities for investigation, examination and prosecution."

16. Article 42 of Law No. 26/2000 broadens this interpretation of "commander's responsibility" to include the police and other civilians. The principles governing the liability of commanders and superiors other than those in the military are in line with those adopted in the Rome Statute of the International Criminal Court. Consequently, during the pre- and post-ballot periods in East Timor, both the governor and the regents were held responsible due to their active roles or their negligence, which led to violations by their subordinates. It is thus obvious that this liability applies not only to military, police and militia commanders, but also to civilians in positions of commands and that Law No. 26/2000 provides the country with a stronger legal basis in defence of human rights.

17. On the subject of crimes against humanity, which include torture, such crimes bear a strict legal definition under international human rights law, most notably according to the statute of the International Criminal Court, also known as the Rome Statute. Although Indonesia has yet to ratify the Rome Statute, the Law on Human Rights courts was passed in November 2000, underscoring the extreme criminality of gross violations of human rights by applying severe penalties to two of the four crimes laid out in the Statute, notably genocide and crimes against humanity. This Act is a strong basis for determining and punishing gross violations of human rights perpetrators by Indonesians.

18. Moving on to the concern raised by the Committee, in paragraph 9 (b) of its conclusions and recommendations, on "the geographical and time limitations of the mandate of the proposed ad hoc human rights court on East Timor", the Permanent Mission of Indonesia would like to provide the following explanations. The provisions of paragraph 2 of Presidential Decree No. 96/2001 states that "the ad hoc human rights court Y has a mandate to investigate and to judge cases of gross violations of human rights which took place in East Timor under the administrative jurisdiction of Liquica, Dili and Suai in April 1999 and September 1999". An extension of the court's jurisdiction to also cover alleged cases of human rights violations which occurred outside these dates would therefore contravene the letter of this Decree. Furthermore, such an extension is inconsistent with the agreed Chairperson's statement of the fifty-seventh session of the Commission on Human Rights, which refers to alleged cases of violations "leading up to and immediately following the popular consultation held in August 1999". Indeed, throughout the negotiations preceding the adoption of the Chairperson's statement on East Timor, it was understood that the Attorney-General's Office, assisted by a joint team which included human rights NGOs, was to investigate and bring to the ad hoc Human Rights Court five specific cases of alleged violations which occurred in April and September 1999, on the basis of the report of the National Commission on Human Rights. Moreover, the Permanent Mission would like to point out that in view of the fact that the second amendment to the 1945 Indonesian Constitution unequivocally stipulates that no law can be retroactive, modifying the parameters of the above-mentioned Presidential Decree would not achieve its purpose. In other words, although the Constitution explicitly provides for the protection of human rights, article 28 on the other hand stipulates the principle of non-retroactivity, thereby contradicting Law No. 26/2000 on Human Rights Courts.

19. The spate of violent clashes opposing the police and demonstrators over recent months has once again raised the issue of excessive use of force employed by police officers to control often dangerous situations, which are nearly always referred to as "peaceful protests", and is no doubt responsible for raising the Committee's concerns expressed in paragraph 7 (b). The Permanent Mission of Indonesia would like to draw the attention of the Committee to the increasingly difficult task faced by the Indonesian police in dealing with armed separatist movements in Aceh and Irian Jaya, and ethnic conflicts in Maluku, Central Kalimantan and Central Sulawsi, as well as the frequent violent protests in cities and growing crime rates in most urban areas. Many of these demonstrations are in fact masterminded by outside provocateurs bent on creating agitation designed to cause political and social upheaval. In defence of the police, it should be said that, given the hard work they must perform and the heavy responsibilities they must shoulder, they are often chronically understaffed, undertrained and underpaid.

20. The National Police is also in the process of being revamped following its June 2000 formal separation from the Indonesian Military. The transformation, from the quasi-military institution of three decades of President Soeharto's New Order regime into one that is fully professional and capable of protecting the people, will take time. Although the abuse of authority may still occur, at least among lower-ranking police officers, an number of improvements have been made, most notably the present policy of attempting to negotiate with protestors before resorting to physical action. Overall, the National Police can be expected to transform itself in step with a corresponding ability by the public to evolve towards a healthier and more mature civil society. In this regard, public opinion, which is increasingly saturated with all the rioting, is expecting the police to clamp down on demonstrators. A poll conducted by the Jakarta-based television station Metro-TV in the wake of anti-United States demonstrations in Jakarta, suggested that 79 per cent of respondents were of the opinion that the police should bring street protesters to heel, if necessary by using "repressive" methods when confronted by violent demonstrators, with only 16 per cent of respondents wanting the authorities to take a more persuasive approach.

21. The Permanent Mission of Indonesia would like to draw the Committee's attention to the fact that a number of significant legal and institutional reforms are currently under way, and therefore regrets the reference, in paragraph 9 (d) of the Committee's conclusions and recommendations, to "a lack of adequate protection of witnesses and victims of torture". In this regard, as was mentioned in the statement read out to the Committee, the draft laws on witness and victim protection are still in the process of completion. In the same vein, legal prohibitions against torture are being formulated in the draft of the revised Criminal Code, which is not yet complete, but will be debated in the House of Representatives when it reconvenes.

22. Allegations were also made to the effect that there exists a "discrepancy between the law on paper and the law in practice". Although Indonesian legal institutions have witnessed a steady upgrading over the years in order to meet international standards, our judicial system still has much ground to cover before it can rival those of established democracies. The legal aspects which Indonesia needs to improve are threefold. The first of these is the universality aspect of Indonesian law, whereby all legal principles should be universal, not particular or local. The second is the predictability aspect, which involves the need to establish standard sentencing, thereby ruling out situations in which the perpetrators of similar crimes receive significantly different sentences, and the third concerns the self-explanatory precedence aspect. Thus, both the country's judicial system and its legal institutions must be brought into line with the universal principles of law recognized by the international community. This will involve reassessing and overhauling the courts, including the supreme court, the Attorney-General's Office, the police force and other legal professions. However, the law cannot be implemented without the support of the community or if the legal culture is neither strong nor widespread.

23. On the strength of the clarifications given above, the Permanent Mission of the Republic of Indonesia would therefore like to request the Chairman and their substance reflected in any future official documents of the Committee relevant to the issues in question. The Permanent Mission of the Republic of Indonesia avails itself of this opportunity to renew to the Chairman of the Committee against Torture the assurances of its highest consideration.