Almost five months have passed since unrest in the highland town of Wamena on 23 September 2019 claimed the lives of 41 victims. Meanwhile, the situation in Wamena has calmed down, but the local police still put heavy limitations on the freedom of assembly under the pretext of re-establishing law and order in Wamena. A group of market women in Wamena had registered a demonstration for 10 February 2020. The local police and members of the 1702/Jayawijaya military command prevented the protesters from conducting the peaceful rally, in which the market women demanded the local government to consider them in a program for subsidizing air fares.
The Chief of the Jayawijaya District Police, Dominggus Rumaropen, stated that he will not allow any public protest to take place as demonstrations could threaten the security situation after the riots in September 2019. According to Rumaropen, the demonstration could be used for voicing the interests of third parties. He did not elaborate which parties were meant. The police finally established a meeting for the market women in which they could share their aspirations with local Government representatives. However, human rights defenders are concerned that the local police use the September-riot as a pretext to limit human rights and fundamental freedoms in Wamena.
A Government may temporarily limit particular human rights and fundamental freedoms in certain situations. However, such limitations must be of an exceptional and temporary nature and can only be imposed during an officially proclaimed emergency situation. Principle 54 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights states that “the principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger”. The Government has neither officially proclaimed the state of emergency, nor is there any indication for an actual, clear, present, or imminent danger in Wamena.
Background – limitation of human rights and freedoms under international law
The Government of Indonesia has ratified the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty which binds the state party to Respect, fulfill and protect the rights and freedoms stipulated in the treaty. Some rights, such as the right to live or the right to be free from any form of torture, are non-derogable rights and must be upheld by the state party under any circumstances. Other rights and freedoms, including the freedom of assembly, may be subjected to temporary limitations under particular circumstances or during a state of emergency.
The following section lists substantive requirements and principles for the permissible derogation under the International Covenant on Civil and Political Rights as stipulated in the General Comment No. 29: Article 4: Derogations during a State of Emergency:
Substantive requirements and principles
• Existence of a public emergency: there must be a “public emergency which threatens the life of the nation”, such as armed conflict, civil and violent unrest, a terrorist emergency, or a severe natural disaster, such as a major flood or earthquake.
• Principle of conformity with international obligations: Derogations should not be inconsistent with other obligations under international law. In no circumstances can the right to derogate from human rights obligations be invoked to justify a violation of international humanitarian law or of a peremptory norm of international law (see Module 3). For instance, while derogations from article 14 (right to a fair trial) may be permissible to the extent strictly required by the emergency situation created by an armed conflict, they are not permissible in relation to the fair trial rights of prisoners of war under the Third Geneva Convention relative to the treatment of prisoners of war which already are minimum standards reflecting the exigencies of armed conflict.
• Principle of proportionality: Permissible derogation measures must limit the derogated rights only to the extent strictly required by the exigencies of the situation (see article 4(1)). In determining whether a derogation is proportionate, the question to be asked is whether there are other means, less restrictive of the rights in question, which would provide a similarly effective means of responding to the exigencies of the situation.
• General Comment No. 29 of the Human Rights Committee makes clear that the requirement of strict necessity relates to the duration, geographical coverage and material scope of the derogation. In particular, in relation to the duration of a derogation, the Human Rights Committee states that “measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature”.
• Principle 54 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (which have been endorsed by the United Nations Economic and Social Council) states that “[t]he principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger”.
• Principle of non-discrimination: Derogation must be applied in a non-discriminatory manner, without a distinction solely founded on grounds of race, colour, sex, language, religion or social origin.
Procedural requirements
• Official proclamation: Derogation measures are only permissible in respect of public emergencies which are “officially proclaimed”. When proclaiming a public emergency, States must abide by their constitutional and other provisions of law which govern such a proclamation. As the Human Rights Committee stated in General Comment No. 29, this “requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed”.
• International notification: article 4(3) requires States seeking to declare a public emergency and to derogate from the requirements of the Covenant to inform the United Nations Secretary General of this position.
