December 1, 2010

VIII. Legal Standards

Qanuns 11/2002 and 14/2003violate the internationally-recognized rights to a private life and to autonomy in areas of activity that do not infringe upon the rights of others. Qanun 14/2003, the Seclusion Law, impermissibly prohibits consenting adults from associating with one another in a wide variety of situations. Although it may have been implemented in an effort to address the problem of vigilante violence, it is neither necessary for addressing this problem nor a proportionate response to the issue. Similarly, Qanun 11/2002 impermissibly and discriminatorily restricts the right of women and transgender women to make personal decisions about their attire, denying them the right to autonomy, as well as the right to free expression and freedom of religion. The laws also authorize the punishment of those convicted of violating Sharialaws with caning, a sanction that is never permissible under human rights law regardless of the manner in which it is carried out, as it constitutes corporal punishment.

The manner in which the WH and police are implementing Sharialaw, and particularly Qanuns 11/2002 and 14/2003, is also giving rise to violations of a host of human rights that Indonesia has pledged to safeguard under various human rights treaties. The vague definition of “seclusion” and arbitrary application of the laws by law enforcement authorities violate the requirement enshrined in human rights law that criminal laws be sufficiently narrowly and precisely drawn to satisfy the principles of legal certainty and foreseeability.

The discriminatory impact of Qanun 11/2002 on women, and selective enforcement of the law against transgender women and the poor violate the right to non-discrimination. The Wilayatul Hisbah practice of conditioning release from detention or the closing of a criminal investigation upon the agreement of people accused of “seclusion” to marry one another violates the right to enter into marriage only with one’s free and full consent. The WH’s stated practice of requiring women and girls accused of “seclusion” to submit to forced virginity tests is unnecessary, discriminatory, and abusive of their right to privacy and personal integrity and constitutes torture under international law. Indonesia has an obligation to cease these abusive practices and provide those whose rights have been violated with an effective remedy, including accountability and reparations.

Indonesia also has an obligation to prevent the commission of vigilante enforcement of the Sharialaws by private individuals, to sanction private violence when it occurs, and to protect people from the threat of further violence against them. At present, it is failing to satisfy this obligation, as law enforcement authorities do not encourage victims of violence to report acts of violence and refuse to investigate and prosecute people for engaging in such violence when they become aware of it. It is not a sufficient response to this problem to simply encourage the resolution of such issues via customary law mechanisms when such mechanisms themselves are selectively applied, lack basic due process guarantees, fail to punish perpetrators of violence, and impose inappropriate and disproportionate punishments on those accused of “seclusion.”

Sharia, National Law, and Human Rights in Indonesia

Sharia implementation in Aceh is taking place in the context of a complex legal architecture. Three overlapping legal frameworks operate in Aceh: a formal system of general law, a formal system of Sharia law, and an informal system of adat (customary) law. These legal systems operate in a clear hierarchy; the Indonesian constitution is the highest source of authority, followed by laws enacted at the national level, followed by general and Sharia laws enacted at the provincial and district levels in Aceh, followed by adat laws and customs. However, there are few mechanisms in place to ensure that this hierarchy is maintained and that rules at all three levels are compatible with one another. Those that do exist appear to be functioning poorly.

Several Islamic scholars, from Aceh as well as elsewhere in Indonesia, stressed to Human Rights Watch that there is not an inherent theoretical conflict between most aspects of human rights law, Indonesian national law, and the implementation of Sharia law in Aceh. Al Yasa’ Abubakar, the former head of the Office of Sharia Islam, told Human Rights Watch that in principle, Sharia laws can harmoniously fit within the framework of Indonesian national law, although officials in Aceh had found the task difficult, as they believed there were no adequate existing examples for them to follow.[179] Mohammad Nazar, Vice-Governor of Aceh, agreed that in many aspects, Sharia can be compatible with human rights, saying, “For us, Islam is a way from God to determine the life of the people, with civilization, not with radical ideology. We have to prepare people to understand that Islamic law is not violent…. Islamic law is about welfare, not about disturbing the rights of the people. Islam can become the power of change for the good of the people. [But] this reformation and transformation cannot be done with violence.”[180] Yusni Sabi agreed, saying, “human rights is definitely compatible with Islam, there is no question.… The very basic teachings of Islam are compatible with human rights.… The real Sharia [is]: ‘Do good things for your neighbors, your brothers.’ But since we are-narrow minded, we have only focused on the small things.”[181]

The Indonesian constitution broadly protects freedom of expression and association. Article 28E states,

  1. Every person shall be free to choose and to practice the religion of his or her choice…
  2. Every person shall have the right to the freedom to believe in his or her faith, to express his or her views and thoughts, in accordance with his or her conscience.
  3. Every person shall have the right to … associate, to assemble and to express opinions.

The constitution recognizes the right to freedom of religion in article 29, noting that “the State guarantees all persons the freedom of worship, each according to his or her own religious belief.”[182] Article 28I states that the rights to freedom of thought and conscience and freedom of religion are rights “that cannot be limited under any circumstances.”[183] The constitution affirms the rights to legal certainty and “equal treatment before the law,” and “to be free from torture or inhuman or degrading treatment.”[184] It provides that every person has the right to be free “from discriminatory treatment based upon any grounds whatsoever” and the right to protection from discrimination.[185]

Indonesia’s law 39/1999 on Human Rights reaffirms these provisions[186] and also guarantees the right to freedom from arbitrary arrest and detention.[187] Law 39/1999 notes that these rights may only be limited by law, and then only for the purposes of “guaranteeing recognition and respect for the basic rights and freedoms of another person, fulfilling moral requirements, or in the public interest.”[188] It further states that children may be arrested or detained “only as a measure of last resort.”[189] In 2005, the DPR incorporated the entirety of the International Covenant on Civil and Political Rights (ICCPR) into national law.[190] As discussed in below, the ICCPR and other international human rights treaties to which Indonesia is a party similarly require Indonesia to respect and protect rights including freedom of expression, religious freedom, and non-discrimination.

The Law on the Governing of Aceh (LoGA) guarantees equal standing before the law, freedom of speech, and freedom of association. It prohibits subjecting residents of Aceh to any form of arbitrary or unlawful search of their persons or residences, the revocation of their rights, the restriction of their individual freedoms; arbitrary torture; or unlawful arrest, detention, prosecution and imprisonment.[191] It also calls for government officials to “promote and protect the rights of women and children.”[192]

The LoGA also states, however, that one of the “special authorities” of the Aceh government is its power to administer religious affairs by implementing Sharia for Muslims in Aceh “with guidance from prevailing laws and regulations.”[193] The LoGA states that Sharia in Aceh can include jinayah (criminal law), as well as regulations related to devotion, family law, civil law, the courts, education, lecturing, religious teachings, and the defense of Islam.[194] Aceh’s provincial, municipal, and district governments can implement Sharia, but they must also “guarantee freedom, foster harmony, respect the religious values practiced by religious faiths, and protect the followers of various faiths to allow them to practice their faiths…”[195] Officials in Aceh are prohibited under the LoGA from “making decisions … in a manner that violates the provisions of prevailing laws and regulations, adversely affects the public interest, and causes unrest within a segment of the community, or discriminates against citizens and/or other groups in society.”[196]

While the executive branch of the central government normally has power to invalidate laws that contravene the public interest, or conflict with other laws or superseding laws and regulations, the LoGA exempts Sharia-based qanuns from this authority. As a result, the Supreme Court is the only national government institution in Indonesia that can invalidate Sharia qanuns.[197] However, as Indonesia’s National Commission on Violence against Women (Komnas Perempuan) has reported, the Supreme Court has historically declined to review the substance of local morality regulations in Indonesia for compatibility with higher laws, instead requiring only that they be enacted in a procedurally proper manner.[198]

International Standards

Indonesia is a party to the major human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR),[199] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture),[200] the Convention on the Rights of the Child (CRC),[201] and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).[202]

The Right to Legal Certainty

Article 15 of the ICCPR requires that all crimes be adequately detailed in the law, which encompasses the principles of legal certainty and foreseeability, requiring that criminal laws be sufficiently, narrowly, and precisely drawn to target specific behavior.[203]

The Right to Privacy

Article 17 of the ICCPR states, “no one shall be subjected to arbitrarily or unlawful interference with his privacy” and that everyone has “the right to the protection of the law against such interference.” [204] This right includes “that particular area of individual existence and autonomy that does not touch upon the sphere of liberty and privacy of others.” [205]   One protected aspect of the right to privacy and autonomy, confirmed by the Human Rights Committee, is adult consensual sexual activity in private. States should protect this right and other aspects of the individual right to autonomy: the right to make decisions freely in accordance with one’s values, beliefs, personal circumstances and needs. States should refrain from imposing illegitimate restrictions and coercion that restricts this right, even where the purpose of such restrictions is to prevent people from adopting a lifestyle that the majority believes is distasteful or harmful to the person who pursues it. Any limitations on the right to autonomy must be directed to a legitimate aim and applied in a nondiscriminatory manner, and the extent and impact of the limitation must be strictly proportionate to meeting that aim. [206]

Freedom of Religion and Expression

Human rights law also guarantees the right to freedom of religion, including the right to manifest one’s religious beliefs through worship, observance, practice, and teaching in private and in public. The ICCPR, which Indonesia ratified in 2006, states that “no one shall be subject to coercion which would impair his [or her] freedom to have or to adopt a religion or belief of his [or her] choice.”[207] Governments can only limit the right to freedom of religion when it is necessary to protect public safety, public order, health, or the fundamental rights and freedoms of others, a high threshold. Any restriction must be nondiscriminatory and proportionate.[208]

Asma Jahangir, the UN special rapporteur on freedom of religion and belief, and her predecessor, Abdelfattah Amor, have both criticized rules that require the wearing of religious dress in public, and Jahangir has stated that “use of coercive methods and sanctions applied to individuals who do not wish to wear a religious dress or a specific symbol seen as sanctioned by religion” is generally incompatible with international human rights law.[209] Human rights law also guarantees the right to freedom of expression, and the Human Rights Committee, the body tasked with monitoring the implementation of the ICCPR, has noted that laws specifically regulating the clothing that women can wear in public can violate this right, as well as the rights to freedom of religion and non-discrimination.[210]

The Prohibition against Torture

The Convention against Torture outlaws corporal punishment, including caning. The Human Rights Committee has noted that the prohibition against torture or cruel, inhuman, and degrading treatment or punishment “relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.”[211]  The Committee has noted that the prohibition extends to “corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure.”[212] The Special Rapporteur on Torture has specifically addressed the impermissibility of corporal punishment even when laws authorizing it are derived from religion, noting that "those States applying religious law are bound to do so in such a way as to avoid the application of … corporal punishment in practice.”[213]

In 2008, the Committee against Torture, which monitors the implementation of the Convention of Torture, specifically discussed the introduction of corporal punishment in Aceh, finding that “the execution of punishment in public and the use of physically abusive methods (such as flogging or caning) … contravene the Convention.”[214] The Committee concluded that Indonesia should review laws in Aceh “that authorize the use of corporal punishment as criminal sanctions, with a view to abolishing them immediately, as such punishments constitute a breach of the obligations imposed by the Convention.”[215]

The Prohibition against Discrimination

Article 3 of the ICCPR states that men and women should enjoy equal access to all the civil and political rights set forth in the covenant, a principle reiterated in the Convention on Elimination of All Forms of Discrimination against Women (CEDAW).[216] Under human rights law, both direct and indirect discrimination on protected grounds is strictly prohibited. Therefore a law nominally neutral on its face may still result in indirect discrimination if it has a disproportionate impact on a group.[217] CEDAW obliges states to “refrain from engaging in any act or practice of discrimination against women,” to ensure that public authorities and institutions similarly refrain from doing so, and to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”[218] It permits differences of treatment based on sex only where they are based on reasonable and objective criteria, pursue a legitimate goal, and are proportionate to the aims sought to be realized. The Islamic attire requirement, which mandates that women wear the veil, prohibits them from wearing close-fitting clothing, and requires them to cover all of their bodies except their hands, feet, and face, fails this test.

The ICCPR affirms the equality of all people, as well as the right to privacy, freedom of expression, and freedom of assembly.[219] These rights entail the freedom to lead an intimate life peacefully; the freedom to express oneself, including one’s gender identity, through clothes or comportment; and the freedom to move and meet in public without fear of harassment or assault. The ICCPR also prohibits discrimination based on sexual orientation; in 1994, the UN Human Rights Committee held that “sexual orientation” is a status protected from discrimination under the ICCPR. Indonesia must take steps to eradicate discrimination by the WH on the basis of gender identity and sexual orientation.[220]

The Prohibition against Arbitrary Arrest

Article 9 of the ICCPR states, “No one shall be subjected to arbitrary arrest or detention.”[221] The prohibition on arbitrariness means that the deprivation of liberty, even if provided for by law, must be proportional to the reasons for arrest. As the UN Human Rights Committee has explained, “arbitrariness” is not “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.[222] The UN Human Rights Committee has determined that legally authorized detention must be reasonable, necessary and proportionate taking into account the specific circumstances of a case.[223] According to the U.N. Working Group on Arbitrary Detention ("the Working Group"), a deprivation of liberty is considered arbitrary when it results from the exercise of the rights or freedoms guaranteed in Article 18 of the ICCPR, which guarantees the right to freedom of thought, conscience, and religion.[224]

The Right to Enter Marriage Freely

CEDAW specifically requires that states must afford to women the right to enter into marriage only with their free and full consent, a right that is violated when WH officers place individuals in a coercive situation in which they must agree to marry in order to gain prompt release from custody.[225] The Committee on the Rights of the Child has similarly condemned forced marriage as a harmful practice.[226]

Human Rights Law and Virginity Tests

Virginity tests violate provisions of CEDAW, CAT, and the ICCPR. They are inherently discriminatory to women, and as there is no legitimate rationale for forced virginity examinations, they are a violation of the rights of women and girls to physical integrity and privacy.[227] Sir Nigel Rodley, the former UN special rapporteur on torture and other cruel, inhuman, or degrading treatment, has classified virginity testing as a form of gender-specific torture.[228]

The Right to a Remedy

The ICCPR and CAT impose an obligation on Indonesia to investigate, prosecute, and remedy these and other human rights abuses committed by law enforcement officials against individuals detained on suspicion of Sharia violations.[229] The Committee against Torture concluded in 2008 that Indonesia’s obligations in this regard include “ensur[ing] that members of the [Wilayatul Hisbah] exercise a defined jurisdiction, are properly trained and operate in conformity with the provisions of the Convention, especially on the prohibition of torture and ill-treatment, and that their acts are subject to review by ordinary judicial authorities.”[230] The Committee also concluded that State institutions in Indonesia should supervise the actions of the [Wilayatul Hisbah] and ensure that fundamental legal safeguards apply to all persons who are accused of violating matters of its concern,” and that Indonesia “should further ensure that a legal aid mechanism exists to guarantee that any person has an enforceable right to a lawyer and other due process guarantees, so that all suspects have the possibility of defending themselves and of lodging complaints of abusive treatment in violation of national law and the Convention.”[231]

Human Rights Violations by Private Actors

International human rights law recognizes state accountability for abuses by private actors and requires states to show due diligence in preventing and responding to human rights violations.[232]

The Right to Due Process

Indonesia similarly fails to satisfy its obligations under the ICCPR in requiring people accused of “seclusion” and/or who have been the victim of violent crimes to submit to traditional dispute resolution mechanisms that lack basic due process guarantees and which may require the payment of arbitrary penalties to village authorities, expulsion of the accused from the community, or forced marriage. As experts have noted, the adat system “contain[s] no safeguards to ensure the rights of the disputants, including the presumption of innocence, the right to representation, and the right to appeal,” and they tend to recommend dispute outcomes that are “geared at maintaining social harmony over the individual’s interest.”[233]  Article 14 of the ICCPR guarantees all persons the right to a fair and public hearing by a competent, independent and impartial tribunal established by law and a right to access to the courts of a state party in cases involving criminal charges. The Human Rights Committee’s General Comment No. 32 elaborates, “access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his or her right to claim justice.”[234]  According to the Human Rights Committee, courts based on customary law must meet the basic requirements of fair trial, including the guarantee of a fair and public hearing and the presumption of innocence.[235] Those accused of a criminal offense must have a right to defend themselves, to examine witnesses against them, and to challenge customary judgments in a procedure that also satisfies the ICCPR’s due process requirements.[236]

[179] Human Rights Watch interview with Al Yasa’ Abubakar, Banda Aceh, May 21, 2010.

[180] Human Rights Watch interview with Mohammad Nazar, Vice Governor of Aceh, Banda Aceh, May 18, 2010.  

[181] Human Rights Watch interview with Yusni Sabi, Banda Aceh, May 18, 2010.

[182] Art. 29(2).

[183] Art. 28I

[184] Art. 28D; art. 28G

[185] Art. 28I; art. 28B (noting that every child has “the right to protection from violence and discrimination”).

[186]Law 39/1999 guarantees the freedom to choose and practice religion and to worship according to one’s religion and beliefs and states that the rights to freedom of thought and conscience cannot be diminished under any circumstance. Arts. 22 and 4. It also guarantees the rights to equal treatment under the law, the right to peaceful assembly and association, the right to protection and security, the right to freedom from torture and cruel, inhuman, and degrading treatment, and the right to be free from discrimination. Arts. 2, 5, 24, 30, 33, and 3(3). Discrimination is defined as: “every restriction, abuse, or exclusion, directly or not directly, based on the human differentiation based on…class, social status, economic status, sex…[or] political convictions, which results in the impairment, violation, or nullification of the recognition, implementation, or exercise of human rights...”

[187] Art. 34.  

[188] Art. 73. 

[189] Art. 66.

[190] Law 11/2005.

[191] Art. 227. 

[192] Art. 231(1).

[193] Art. 7(2); art. 16(2)(a)-(b); art. 17(2)(a)-(b)); art. 16(4)). 

[194] Art. 125.

[195] Art. 127. 

[196] Art. 47.

[197] LoGA, art. 235. In September 2009, Saut Situmorang, head of Information for the Ministry of Home Affairs, confirmed, “the Qanun that governs Sharia may only be rejected by a material review conducted by [the Supreme Court.”  “Qanun yang Bertentangan dengan UU Akan Diuji Materi,” Serambi Indonesia, September 26, 2009, http://www.serambinews.com/news/view/14221/qanun-yang-bertentangan-dengan-uu-akan-diuji-materi (accessed August 31, 2010).

[198] In April 2007, the Supreme Court refused to review a regulation implemented in the district of Tangerang that vaguely criminalized “prostitution” for substantive compatibility with higher laws or the constitution, and instead determined that the law did not conflict with higher Indonesian law because it had been approved in a procedurally correct manner. “Perda Pelacuran Tangerang Tak Bertentangan dengan UU” (“Tangerang Government Decree Regarding Prostitution Does Not Violate Other Laws”), Gatra, April 13, 2007.  The law provided: “anyone whose behavior or attitude…raises a suspicion that she is a prostitute is prohibited to be…in areas that can be seen publicly.”  Tangerang Regional regulation No. 8/2005, translation in Komnas Perempuan In the Name of Regional Autonomy: The Institutionalisation of Discrimination in Indonesia, (2009), Table 7. In addition, in 2008, the Supreme Court has heard appeals in five Sharia cases from Aceh, four of which involved caning sentences.  In each, it sustained the guilty verdict and did not examine the compatibility of the underlying law with national law.  Case Nos. 01 K/AG/JN/2008, No. 01 PK/JN/2008, No. 02 K/AG/JN/2008, No. 03 K/AG/JN/2008, No. 04 K/AG/JN/2008, on file with Human Rights Watch.

[199] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976.  Indonesia ratified the ICCPR in 2006.

[200] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.  Indonesia ratified the Convention against Torture in 1998.

[201] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990.  Indonesia ratified the CRC in 1990.

[202] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. Res. 34/180, U.N. GAOR Supp. (No. 46) at 193, U.N. Doc A/34/36, entered into force September 3, 1981.  Indonesia ratified CEDAW in 1984.

[203] ICCPR, art.15; see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed,. (Kehl am Rhein: Engel, 2005), p.361.

[204] ICCPR, art. 17.

[205] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 294.

[206] UN Human Rights Committee (HRC), General Comment 16 to article 17 of the ICCPR , "Compilation of General Comment and General Recommendations Adopted by Human Rights Treaty Bodies," UN Doc. HRI/GEN/Rev.3, 15 August 1997.

[207] ICCPR, art. 18.

[208] UN HRC, General Comment No. 22, issued to clarify the meaning of article 18 (Forty-eighth session, 1993), July 20, 1993, Doc.CCPR/C/21/Rev.1/Add.4, para. 8. 

[209] Report of the Special Rapporteur on freedom of religion or belief Mr. Abdelfattah Amor, “Implementation of the Declaration on the Elimination of all Forms of Intolerance and Discrimination Based on Religion or Belief,” Commission on Human Rights, fifty-fourth session, E/CN.4/1998/6, January 22, 1998, para 60(a) (identifying Afghanistan’s obligations that women wear “what is described as Islamic dress” as a violation of the principle of tolerance in matters of religion and belief).

[210] Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, “Civil and Political Rights, Including the Question of Religious Intolerance,” Commission on Human Rights, sixty-second session, E/CN.4/2006/5, January 9, 2006, p.17, para. 55. 

[211] Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994), para. 5.

[212] Ibid.

[213] Report of the Special Rapporteur, Commission on Human Rights, 53d sess., Item 8(a), U.N. Doc. E/CN.4/1997/7 (1997). 

[214] Concluding observations, Committee against Torture: Indonesia, CAT/C/IDN/CO/2, July 2, 2008, para. 15.

[215] Ibid.

[216] ICCPR, art. 3; CEDAW, art. 2.

[217] The CEDAW Committee has stated that the definition of discrimination in article 1 of the convention covers both direct and indirect discrimination by public and private actors. See for example, "CEDAW Committee Concluding Comments on the Belize initial report," cited in United Nations/Division for the Advancement of Women, Assessing the Status of Women: A Guide to the Reporting Under the Convention on the Elimination of All Forms of Discrimination Against Women (New York: United Nations, 2000), p. 102.

[218] CEDAW, art.2.

[219] ICCPR, arts. 17, 19, and 21.

[220] ICCPR, arts 2, 6.  Nicholas Toonen v Australia, 50th Sess., Communication No. 488/1992, CCPR/c/50/D/488/1992, April 14, 1994, para 8.7  (finding that “the reference to ‘sex’ in articles 2, paras. 1, and 26 is to be taken as including sexual orientation.”).  “Report of the Independent Expert on Minority Issues,” E/CN.4/2006/74, January 6, 2006, para 28.

[221] ICCPR, art. 9.

[222] Communication No 305/1988: Netherlands. CCPR/C/39/D/305/1988 (Jurisprudence), Views Of The Human Rights Committee Under Article 5, Paragraph 4, Of The Optional Protocol To The International Covenant On Civil And Political Rights -Thirty-ninth Session concerning Communication No. 305/1988, August 15, 1990.

[223] Van Alphen v. The Netherlands, Communication No. 305/1988, adopted 15 Aug. 1990, U.N. GAOR, Hum. Rts. Comm., 39th Sess., ¶ 5.8, U.N. Doc. CCPR/C/39/D/305/1988 (1990); A v. Australia, Communication No. 560/1993, adopted 30 Apr. 1997, U.N. GAOR, Hum. Rts. Comm., 59th Sess.,¶ 9.2, U.N. Doc. CCPR/C/59/D/560/1993 (1997).

[224] See Fact Sheet No. 26, section IV "Criteria Adopted by the Working Group to Determine whether a Deprivation of Liberty is Arbitrary," U.N. Working Group on Arbitrary Detention, http://www2.ohchr.org/english/about/publications/docs/fs26.htm (accessed Oct. 16, 2010).

[225] Art. 16(1)(b)

[226] See Committee on the Rights of the Child, General Comment 3, CRC/GC/2003/3, March 17, 2003,para 11.

[227]See Human Rights Watch, Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors, September 6, 2010, http://www.hrw.org/en/node/92720/section/1; Human Rights Watch, Libya: A Threat to Society? , February 27, 2006, http://www.hrw.org/en/node/11468/section/6#_ftn82  (citing interview with Dr. Greg Larkin, Professor of Emergency Medicine at the University of Texas Southwestern Medical Center, February 14, 2006) (accessed August 31, 2010). 

[228] Interim Report of the Special Rapporteur to the Commission on Human Rights on the question of torture and other cruel, inhuman or degrading treatment or punishment, A/55/290, August 11, 2000, http://www.un.org/documents/ga/docs/55/a55290.pdf (accessed May 13, 2010), p. 7. 

[229] ICCPR, art. 2(3)(a); CAT art.7.

[230] Concluding observations, Committee against Torture: Indonesia, CAT/C/IDN/CO/2, July 2, 2008, para. 15.

[231] Ibid.

[232] ICCPR, art. 9.

[233] UNDP Indonesia, “Access to Justice in Aceh,” p. 98. 

[234] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007).

[235] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007).  This means that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

[236] Ibid.