Last week, the Indonesian National Commission on Human Rights (Komnas HAM) released its preliminary report into the alleged torture of Papuans by the Indonesian military (TNI). Quoted in a Deutsche Welle report on 4 January, the head of the commission, Ifdhal Kasim, confirmed that members of TNI had “grossly violated human rights”. The DW piece finished with Phil Robe’s (deputy director of Human Rights Watch’s Asia Division) call for Australia to put pressure on Indonesia to reform TNI’s Army Special Forces, Kopassus, or risk losing credibility as a country that respects human rights. I was curious to know exactly what HRW meant by “pressure”.

In their open letter of 26 October 2010, HRW recommended two lines of action for the Australian Prime Minister: first urge the Indonesian government to undertake further investigations and disciplinary action into allegations of abuse by the military, to adopt legislation to provide civilian criminal court jurisdiction over military personnel responsible for offenses against civilians, and to investigate allegations against Detachment 88; and second tighten up and make public Australia’s vetting procedures for Indonesian security forces.

While there have been perennial calls (ostensibly by HRW but also within the Australian press, most recently here) for Australia to get involved, here I examine how much credence HRW’s recommendations deserve.

The first set of recommended actions—even if they are in keeping with Australia’s foreign policy leanings—is tantamount, from Indonesia’s perspective, to meddling in another country’s affairs; President SBY warned Prime Minister Gillard ahead of her November visit to Jakarta that Australia’s interference in torture cases was not welcome. Later, during her trip, Prime Minister Gillard accepted President SBY’s assurance that a “full and transparent investigation” would take place. In light of the resultant investigations carried out by Komnas HAM, it is highly unlikely that any other tangible and productive outcome would have transpired from more vocal chiding on behalf of Australia.

The second set of HRW recommendations—that is, for Australia to adjust its own rather than Indonesia’s approach to human rights concerns—is far more appropriate. As I have proposed elsewhere, the adoption of a legal standard against which Australia can measure human rights reform within foreign militaries is, albeit complex and ambitious, a pragmatic way of reconciling our foreign policy with our defence engagement. A useful departure point could be the Leahy Amendment to the Foreign Assistance legislation (see s502B and subsequent appropriations legislation). In short, Leahy prohibits US security assistance to military units where there is credible evidence that they have committed “gross violations of human rights”.

That said, Leahy is no silver bullet, and it is worth examining some of the challenges involved in adopting a similar legalistic approach. Many of the finer points of these challenges are elaborated further in Charles K. Comer’s critique, but here, I will draw out a few.

First, the wording of any test for human rights standards and vetting must be carefully constructed. In the case of Leahy, funding is barred for units rather than individuals where credible evidence demonstrates a gross violation of human rights. In the case of the US and Indonesia, two TNI officers with exemplary records who were denied US funding despite having been born after the violations alleged to have been carried out by their unit occurred (Comer: 63-64). This situation is somewhat mitigated by Australian vetting procedures which seek to minimise contact with individuals who have backgrounds of concern, however there remains a lack of accountability to which standards these backgrounds are compared. The framework provided by Leahy could complement current vetting procedures.

Second, if adopted, Leahy must be applied consistently to all foreign military partners. As Comer notes, “[i]n the case of Indonesia, units, either cohort or composite, receiving training must undergo full vetting to include the history of the unit itself. By comparison, unit vetting in the Philippines consists of vetting only the unit commander or most senior individual in the case of a composite unit.”

Third, Wikileaks cables released in December 2010 revealed that a ban on training (enacted by Leahy) between the US military and Kopassus was lifted due to pressure by Indonesian President SBY (Indonesia denies pressure was applied to lift the ban). Unsurprisingly, this brings to light the ways in which legal protection of human rights standards can be trumped by realpolitik concerns. In the words of Australian Defence Force Academy associate professor Clinton Fernandes, ”[t]he decision to renew links shows contempt not only to the victims of gross human rights violations but to members of the US Congress.” Nonetheless, that Leahy continues to serve as a yardstick of US expectations on human rights remains important, when applied and upheld correctly.

By no means should Australia be merely reactive to the calls by organisations like HRW, however, it is worth continuing to debate options proposed and perhaps draw closer to reconciling a desire to uphold human rights and an imperative to engage with Indonesia’s military.