Thursday, November 5, 2015

Soldier kills civilian in traffic altercation; where should the case be tried?

Choice of forum issues continue to be a hardy perennial in the garden of military justice. The Jakarta Post has this report on a case in which an Indonesian soldier shot a civilian after a minor traffic accident. There are calls for the case to be tried in civilian court. Why shouldn't it be?
Human rights activists have called for an Indonesian Military (TNI) soldier who shot and killed a civilian on Tuesday to be tried in a civilian court and not a military court.
Hendardi, the chairman of human rights advocacy group the Setara Institute, said on Thursday that military courts are only for trying military law violations, not general crimes. 
"A TNI [soldier] is just a human being when he conducts a general crime. Of course the perpetrator must be brought before a public court," he told 
A soldier in the Army Strategic Reserves Command (Kostrad) shot dead an ojek (motorcycle taxi) driver named Marsim in Cibinong, Bogor regency, on Tuesday. The soldier, Second Sgt. YH, shot Marsim after the latter's motorcycle grazed his car while overtaking. YH shot Marsim in the head after an argument in front of a gas station in Cibinong. 
TNI chief Gen. Gatot Nurmantyo has apologized and promised to try YH in an open military tribunal, to ensure transparency, and dismiss him from the military. 
Hendardi said that holding an open tribunal still did not show a strong commitment from the TNI to ensuring that general crimes committed by TNI personnel were solved in a fair manner. 
"The main problem is not whether or not the trial is open, but that this is a violation of equality-before-the-law principles guaranteed by the constitution," he said. 
Hendardi also called for the government and the House of Representatives to amend the 1997 law on military tribunals. 
Wahyudi Djafar, a researcher with the Institute for Policy Research and Advocacy (ELSAM) said that violent acts by TNI personnel against civilians betrayed a strong [culture of] impunity for violence within the TNI. 
He too called for reform of military tribunal laws. 
"This case could form a strong starting point for military tribunal reform and changes to the military education curriculum," Wahyudi said, supporting Hendardi's statements.
Sometimes a single critical incident can spark major military justice reforms, as in Taiwan and the Republic Korea. Is this such a case? 

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