Responding to the Plan to Return ISIS-apologist Indonesian Citizens
Recently, the discourse regarding the repatriation of Indonesian citizens (WNI) involved in the international terrorism organization, namely the Islamic State of Iraq and Syria (ISIS) to return to their homeland, has become a polemic in the community. The government has not yet decided what action to take regarding the planned repatriation of around 660 Indonesian citizens residing in Iraq and Syria.
Imparsial views terrorism as an act that is not justified under any pretext or reason. As a crime, terrorism is a real threat to the security of the state and society. Fighting acts of terrorism is in our common interest as a nation. Efforts to deal with terrorism need to be carried out comprehensively starting from prevention, prosecution, to deradicalization.
Imparsial assessed that efforts to deal with terrorism must be able to maintain an imperative balance between the state's obligation to protect the public's sense of security and guarantee the protection of human rights. State policy to tackle the problem of terrorism is not only necessary, but also necessary. Terrorism can only be prevented, tackled, and narrowed its range of motion by a comprehensive state policy for democratic political life, social welfare, and upholding justice.
However, in formulating an anti-terrorism policy, the state must fulfill its obligations properly, namely placing the protection of the liberty of person in a permanent balance point with the security of person.
In the context of repatriating Indonesian citizens sympathizing with ISIS, the government must be careful and careful in identifying and handling Indonesian citizens sympathizing with ISIS. Prudence is needed to ensure that government policies are not counterproductive in dealing with the threat of terrorism.
The government needs to identify Indonesian ISIS sympathizers as Foreign Terrorist Fighters (FTF), and those who are not part of this. Based on UN Security Council Resolution 2249, ISIS is not a state, but is designated as a terrorist organization.
According to the Montevideo Convention on the Rights and Duties of States, a subject of international law can be said to be a state if it has the following criteria: Article 1 of the Convention, First, permanent population; Second, clear territory; Third, the existence of government; and Fourth, have the capacity to conduct relations with other countries.
In addition, both the Constitutive Theory and the prevailing customs in international relations (international customs), that a subject of international law is recognized as a state if it already has recognition from another country.
In that context, the involvement of Indonesian citizens as ISIS sympathizers does not necessarily identify them as joining a country. Because ISIS is a terrorist organization and not a state. At this point, all Indonesian citizens sympathizing with ISIS legally still have the status of Indonesian citizens. Therefore, the government needs to respond proportionally in dealing with this problem.
As part of Indonesian citizens, the government cannot escape its constitutional obligations to take the necessary steps in dealing with Indonesian citizens who are ISIS sympathizers. Status as a citizen is guaranteed to be a right for everyone as confirmed in our constitution, Article 28D of the 1945 Constitution of the Republic of Indonesia.
Citizenship is then further explained in the constitution accompanied by a set of rights and obligations inherent in it. The guarantee of citizenship in the constitution of the Republic of Indonesia as a right is a manifestation of the state's recognition of the attachment of individuals in the political community of the Indonesian nation.
Imparsial believes that the government should take the option of repatriating Indonesian citizens sympathizing with ISIS and not revoking their citizenship. Considering that citizenship status is a very valuable right, sanctions for revocation of citizenship should be avoided.
Moreover, Indonesia adheres to the principle of single citizenship and does not adhere to the principle of dual citizenship. The imposition of sanctions for revocation of citizenship will result in statelessness which should be avoided considering that this condition greatly degrades the honor of a human being.
Revocation of citizenship does not solve the problem of terrorism in the world, and instead legitimizes ISIS as a state. Efforts to deal with terrorism are efforts to maintain world peace which is the government's constitutional obligation as affirmed in the Preamble to the 1945 Constitution.
By revoking citizenship will have an impact on statelessness and potentially create new problems for global security. The government should carry out legal proceedings against Indonesian citizens involved in terrorism crimes rather than revoking their citizenship. If there are Indonesian citizens who are actively involved as FTFs in Syria and Iraq and are in legal process in those countries, the government needs to respect the legal mechanisms that apply in those countries.
As for those who are not in the legal process in that country, the government can repatriate the Indonesian citizen and proceed legally according to the applicable laws in Indonesia, as well as prepare all the tools needed in efforts to deradicalize as regulated in Article 43D paragraph (2) letter f. UU no. 5 of 2018.
Against those who become FTF and become part of ISIS, then based on Law no. 5 of 2018 concerning Amendments to Law No. 15 of 2003 concerning Stipulation of Government Regulation in Lieu of Law no. 1 of 2002 concerning Eradication of Criminal Acts of Terrorism, they can be charged with criminal provisions as regulated in Article 12B Paragraph (1), which in full reads as follows:
“Any person who intentionally organizes, provides, or participates in military training, paramilitary training, or other training, both domestically and abroad, with the intention of planning, preparing, or committing criminal acts of terrorism, and/or participating in wars abroad. country for the Crime of Terrorism shall be punished with imprisonment for a minimum of 4 (four) years and a maximum of 15 (fifteen) years.”
The application of the article mentioned above must of course be followed by sufficient evidence to be brought into the legal process while still respecting the due process of law. Therefore, the Indonesian government must work closely with the Syrian and Iraqi governments to identify the perpetrators who are truly active FTFs.
The government can also use other legal instruments outside the Terrorism Act to deal with this problem. Especially for women and children who went to Iraq and Syria, the government should implement a comprehensive deradicalization program instead of punishing them.
Jakarta, February 11th, 2020
Al Araf (Director)
Gufron (Vice Director)
Ardi Manto (Research Coordinator)
Anton Aliabbas (Researcher)
Hussein Ahmad (Researcher)
Annisa Yudha (Researcher)