May 21, 2024
This blog post is written by Melissa Sonntag and Logan Nantais, students at the University of California, Irvine School of Law International Justice Clinic.
On March 11 & 12, 2024, Melissa Sonntag and Logan Nantais, from the University of California, Irvine School of Law’s International Justice Clinic (IJC), working with a coalition of civil society organizations and under the supervision of IJC’s Professor K.S. Park lobbied for Indonesia’s digital rights at the 140th session of the United Nations Human Rights Committee in Geneva, Switzerland, which met to review the country’s compliance and the compliance of multiple parties with the International Covenant on Civil and Political Rights (ICCPR). A few days after the lobbying activity, the Committee issued Concluding Observations recommending much of what the IJC and the coalition requested on internet freedom and privacy such as criminal defamation laws overly protective of high government officials, online content takedown procedures devoid of due process, and about 20 different laws allowing surveillance without judicial approval.
<From Left: KWON Yongmi, Korea University International Human Rights Clinic; Logan Nantais, IJC, Melissa Sonntag, IJC; OH Kyoungmi, Open Net; Maria Cran, Member, Human Rights Committee; SO Changrok, Member, Human Rights Committee; KS Park, Instructor of IJC and Korea University IHRC, Director of Open Net>
The CCPR Review Process
The ICCPR is the international treaty that guarantees rights such as the right to life, freedom from torture, freedom of expression and religion, and the right to privacy. Every eight years, countries that are parties to the ICCPR (or “States Parties”) undergo a standard review process. The process aims to evaluate States Parties’ compliance with the Covenant, and to provide recommendations to the countries’ governments on how to better ensure their citizens’ full enjoyment of their rights.
The ICCPR review process is carried out by the Human Rights Committee, made up of 18 elected individuals from various States Parties. These individuals serve in their personal capacity, rather than as representatives of their governments, and “shall be persons of high moral character and recognized competence in the field of human rights” (article 28, ICCPR).
Member countries have two options for the review process: the traditional process and the simplified process. Indonesia opted for the simplified process, which involves the following steps. First, the Committee drafts a report called the List of Issues Prior to Reporting (LOIPR) which highlights any concerns it has about potential human rights abuses in that country. Second, after the Committee publishes the LOIPR, the State Party responds to the Committee’s concerns in their own report.
Prior to the Committee publishing the LOIPR and again ahead of the review session, it encourages civil society organizations (CSOs) such as nonprofits, academic institutions, and human rights monitoring groups to submit their own reports informing it of potential abuses (this is the type of report IJC submitted!). CSOs play a pivotal role in helping the Committee ensure that the most pressing issues are addressed in the LOIPR, and in providing critical information for assessing the country’s compliance with the Covenant during the session.
Third, after the relevant parties submit their reports, representatives of the parties are invited to attend the ICCPR session in Geneva to engage in a constructive dialogue. The session is split up into three main parts: the informal briefing, the formal briefing, and the State Party report review.
Finally, after the review session, the Committee reflects upon the information it has received and issues a report of its Concluding Observations. This final report solidifies the areas in which the State Party is out of compliance with the Covenant, highlights areas for improvement, and provides recommendations for further action.
Why Indonesia?
The country of Indonesia is an archipelago in Southeast Asia, made up of thousands of islands located between the Indian and Pacific oceans. After centuries of colonization by the Dutch, Indonesia declared independence after World War II. Today, Indonesia is the world’s fourth-most-populous country, third-largest democracy, and the largest Muslim-majority country.
Despite making commendable political, social, and economic progress in its post-colonial era, Indonesia has struggled to fulfill its obligations under the ICCPR. The IJC teamed up with a coalition of groups to produce a report focused on the current state of digital freedom and privacy in the country. According to FreedomHouse’s 2023 Freedom on the Net report on Indonesia, the country’s internet is only “partly free” with an internet freedom score of 47/100.
This lack of freedom partially stems from the Indonesian Criminal Code, which uses an overly-broad definition of “negative content” in order to crack down on online activity. These crackdowns, coupled with an increasing use of legal penalties for online offenses, have left many Indonesians afraid of expressing themselves on the internet. Another obstacle to digital freedom is the repeated use of state-sanctioned internet shutdowns in the face of public unrest, impairing Indonesians’ access to information and ability to freely share their opinions.
The Report-Writing Process
In the beginning of the report-writing process, Logan and Melissa met with members of Open Net, Southeast Asian Freedom of Expression Network (SAFENET), and the Korea University International Human Rights Clinic in order to divide up roles and tasks. The IJC students were given the task of creating the first draft of the submission on free speech, while Korea University students focused on privacy.
In order to better understand the issue, the students used a variety of sources including Indonesian news articles, especially regarding criminal cases that involved freedom of expression issues. From there, the students became better acquainted with the Indonesian Criminal Code, EIT Law, and other Indonesian laws suppressing and persecuting freedom of expression and exacerbating privacy issues.
The students then took this background knowledge and placed it in the context of international law, specifically how the Indonesian government’s actions may violate the ICCPR. To do this, the students pulled from the ICCPR itself, as well as reports from UN Special Rapporteurs and General Assembly reports. The students also created a variety of recommendations to solve the issues they had highlighted within the report. Upon producing a draft, members of SafeNet and Professor Park provided the students with edits and suggestions until the submission reached its final stages and was sent to the Human Rights Committee to be published on the CCPR page for the 140th Session.
Ultimately, the report focused on five main areas: (1) Persecution of Speakers, (2) Suppression of Speech, (3) Failure to Protect Online Safety, (4) Impairment of Access to the Internet, and (5) State Surveillance and Violation of Right to Privacy.
Researching Committee Members
Prior to the session, the students researched the various members of the Human Rights Committee to attempt to decipher who may or may not be sympathetic to the cause, have prior background knowledge, and most importantly, who was likely to be on the working group focused on Indonesia during the session.
In order to do this, the students read through the Committee members’ CVs, did background searches on their publications and prior research, and attempted to decipher where the different members stood on the various issues. The students then separated the Committee members into those who likely had an interest in freedom of expression, Southeast Asia, or a personal connection to the Clinic or cause, as well as those who were less likely to be engaged. In the end, the students ended up being fairly correct in their assumptions, and found this prior research helpful in preparing to lobby Committee members.
Creating a one page leaflet
After researching the Committee members, students had to prepare talking points for their lobbying efforts. The students reviewed their 36-page report and distilled the most prescient points down to a one-pager, which they planned to have physical copies of to provide to Committee members in person. The one-pager consisted of several sections: a brief overview of the issue, a list of recent incidents or particularly shocking statistics related to the country’s human rights violations, and a summary of the five main sections of the report along with the most pressing recommendations. Armed with about 20 copies, the students finally made their way to Geneva.
The Informal Briefing
Day one of the review session started bright-and-early at 9 AM with Indonesia’s informal briefing. The informal briefing involves only CSO representatives from the country in question and the six Committee members that are specifically assigned to reviewing that country. The briefing is “informal” in the sense that it does not require a pre-written statement, and is in a much more intimate setting with a focus on only one country, whereas the formal briefing is held in the main conference room and hears CSO representatives’ prepared speeches for all of the countries under review during that session.
During the informal briefing, the Committee members had the opportunity to ask CSO representatives follow-up questions on their reports. The students went prepared with reference materials, and tried to strike a balance between offering expertise when helpful, while not upstaging Indonesian CSO members who had actual first-hand knowledge of the country’s human rights violations.
Melissa led the research team through the hour-long briefing, fielding most of the relevant Committee questions, and the students were able to offer answers that drew upon their international legal training. After the briefing, the team was thanked by Committee members and other CSO representatives for their valuable input.
The Formal Briefing
The session then proceeded with the formal briefing in which Logan (video) and Yongmi Kwon (a student with the Korea University International Human Rights Clinic), along with many other CSOs, had two minutes to speak. The two students chose to focus their speech on the most important facts and statistics to emphasize to the Committee members, who had already read the prior submission, the most impactful and emphatic pieces to remember from the report. This included the government making themselves “arbiters of lawful expression” and their subsequent removal of hundreds of thousands of websites and posts critical of the ruling majority. The students were able to fit this information in their allotted two minutes, being put up on the large screen at the front of the room for all the Committee members and other CSOs to see.
The Review Session
Following the briefings, the Indonesian government delegation joined everyone in the main conference room for a six-hour question-and-answer review, which spanned over the course of the two days. During the review, the six Committee members assigned to Indonesia diplomatically challenged the government’s laws and policies, drawing upon all of the information they had received up to that point.
During the several breaks throughout the review, IJC students had the task of directly lobbying Committee members on the issues from their report, and pointing out inconsistencies between the story the State Party was telling and their research. The students were satisfied that their lobbying efforts were successful, as they heard several of the points made in their report repeated by Committee members during questioning.
After Geneva
The team also submitted an additional report debunking some of the positions that the Indonesian government made during the formal review so that it can be taken into account when the Committee regrouped to craft the recommendations.
The impact of the research team’s work was further memorialized in the Committee’s Concluding Observations in several parts. Below is an example of the impact the team’s efforts had, with the IJC report’s contributions underlined:
“Freedom of expression
32. The Committee regrets the limited information on laws or policies to protect individuals exercising their freedom of speech, including human rights defenders, community leaders, journalists, and civil society representatives. The Committee is concerned about article 240 of the amended Criminal Code and article 27A on criminal defamation under the 2 January 2024 revision of Law No. 11/2008 on Electronic Information and Transactions, which may be used to criminalise insulting the President or public officials. The Committee is also concerned that articles 27(1) on “contents that violate propriety” and 28(3) on “false statements that cause public unrest” of the revised Electronic Information and Transactions Law are overbroad and vague, allowing for judicial intimidation and harassment. The Committee is concerned about reports of internet shutdowns amidst protests and regularly in the context of security operations in Papua. The Committee notes with concern that since the adoption of Ministerial Regulation no. 5/2020 on Private Electronic System Operators, nearly 300,000 webpages have been blocked, of which approximately two thousand were identified as “negative” (arts. 19 and 20).
33. The State party should take the measures necessary to ensure the full enjoyment of the right to freedom of opinion and expression, with reference to General Comment no. 34 (2011) on the freedoms of opinion and expression. In particular, the State party should:
(a) Adopt measures to effectively protect individuals exercising their freedom of expression, including the adoption of legislation to protect human rights defenders and to guarantee their rights, including their right to effective remedies;
(b) Conduct prompt, thorough, and impartial investigations into all reports of harassment, intimidation and reprisals against human rights defenders, ensure that perpetrators are brought to justice, and if convicted, punished with penalties commensurate to the seriousness of the offence, and that defenders are able to carry out their work in a safe and enabling environment;
(c) Revise the legal framework including the Criminal Code and the revised Electronic Information and Transactions Law (EITL) in order to decriminalize defamation of the President or public officials, defining articles 27(1) and 28(3) of the EITL in accordance with the principles of legal certainty, necessity, and proportionality; and ensure that all restrictions on the internet access are non- discriminatory, necessary, and proportionate, as required by article 19 (3) of the Covenant;
(d) Review Ministerial Regulation no. 5/2020 with a view to guarantee transparency, procedural safeguards, access to evidence and the right to appeal to an independent body in line with the Covenant...”
Concluding Observations on the Second Periodic Report of Indonesia, Human Rights Committee.
Melissa Sonntag’s Personal Reflection
From start to finish, I learned so much from this project and really enjoyed seeing the concepts I have learned in the classroom play out in front of me. Despite having a degree in international affairs and taking international legal analysis in law school, I did not fully grasp how international human rights law actually worked prior to this project. It was not until I was fully immersed in the practice of international law that I gained a true understanding of how international law operates, and more importantly, how it can be leveraged to address the issues I care about.
Additionally, I had never taken a close look at the right to privacy and freedom of expression on the internet. I was surprised both at how little I originally knew on the topic, as well as how fascinating of a focus area it is. It was especially interesting for me to research how women’s and LGBTQIA+ rights are often underprotected in digital spaces, and how political parties and government actors are finding ways to manipulate internet discourse to favor their narratives or squash dissent.
Finally, I feel incredibly honored to have had the opportunity to advocate for human rights in such an impactful forum. One of the most rewarding moments of our time in Geneva was talking to an Indonesian CSO representative who thanked us for our work, remarking how he thought no one outside of Indonesia would care about Indonesians’ human rights. While I completely understood his statement, all I could think to myself was, “how could I not care?” It was a huge reminder that clinic students’ projects are not just mere assignments for a grade; our work really can have an impact, and it is imperative that we keep in mind how we can use our power as law students and future lawyers to create real-world change.
On a more personal note, when I first started studying international affairs nearly a decade ago, I never thought that I would someday have the opportunity to visit the United Nations—let alone to prepare and present my own research to the Human Rights Committee. This experience was invaluable, and I am endlessly grateful to Professor Park, our entire project research team, and the International Justice Clinic for empowering me to do this important work!
Logan Nantais’s Personal Reflection
I was incredibly excited to attend the CCPR 140th Session in Geneva. The chance to speak at the formal session was an incredibly fulfilling experience, being broadcast on the big screen, translated into various languages, and getting to share the work that we had spent multiple months on felt like the culmination of all of our hard work.
However, we were not done, when our time to speak had ended. When it was the Indonesian government’s turn to answer questions posed by the Human Rights Committee members, one question being directly pulled from our research, I was intrigued, frustrated, and even at times amused by the circular way the Indonesian government would attempt to answer questions to ignore their culpability. For example, the Indonesian government claimed that they did not need to ratify the Refugee Convention because they did not have that many refugees, even though the reason they don’t have many refugees is because they have not ratified the convention. I analogized this to claiming that a country didn’t need to sign the Convention Against Torture because they hadn’t tortured anyone yet.
Getting to hear the Committee members use our words to question officials of the Indonesian government and seeing the final report by the Committee which uses our submission and facts to make recommendations to the Indonesian government reminded me all over again why I love international law. Further, getting to meet and talk to members of the Human Rights Committee and learn what it entails to become and to be a Committee member was incredibly interesting. This is certainly an experience I will never forget.