Omissions in the Law of Genocide: Insights from Indonesia

Part 3 of a series: Indonesia’s Forgotten Genocide 


By Ariq Hatibie


[dropcap]W[/dropcap]hen the Genocide Convention entered into force in 1951, the world vowed never again to replicate the atrocities of the Holocaust. Coined by Polish-Jewish lawyer Raphael Lemkin, who lobbied tirelessly for the Convention’s adoption, the term “genocide” conjures in our imaginations the most heinous manifestations of human depravity. However, there is a disjuncture between “genocide” as a category of legal analysis and as a category of practice. In my previous writings, I have referred to Indonesia’s 1965 killings as “genocide,” and indeed this is the term many academics and commentators use. However, the Genocide Convention makes a key omission, that of politicide, that renders this characterization of the Indonesian killings – and many others like it around the world and across history – legally inaccurate.

Specifically, the Convention leaves killings on the basis of political ideology out of the definition of Genocide. Article II of the Convention defines genocide as involving “acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.” This list clarifies that genocide must involve the eradication of a people on the basis of immutable characteristics, qualities endowed largely by birth. It is worth noting that although Indonesia has not ratified the Genocide Convention, the prohibition against Genocide has entered the realm of jus cogens in international law. That is to say, genocide has been deemed so heinous a crime that no state can possibly legally commit it regardless of their participation in prohibitory treaties. Crucially, the convention leaves out killing on the basis of political belief. In the discussions leading up to the Convention’s signing, some states, especially Russia, worried that an overly expansive definition of genocide would prevent them from effectively dealing with domestic dissent.

This has implications for how we legally classify Indonesia’s killings of 1965. In 2015, the International People’s Tribunal on 1965 Crimes Against Humanity in Indonesia was set up in The Hague. Although its findings were non-binding (and, disappointingly but unsurprisingly, rejected by Indonesia itself), it provided interesting insights. Importantly, it judged that the killings constituted genocide – but not because people were targeted due to their political beliefs. Instead it provides two justifications. One line of reasoning classified part of the killings as genocide, since a large number of ethnic Chinese were targeted because of their ethnicity. Notably, the tribunal took care to explicitly rule out in the definition of genocide killings on the basis of political identity when they write, “most Chinese were murdered because they belonged to Baperki, an association of Chinese Indonesians associated with the PKI, but ethnic motives played a role as well … To the extent that they were killed because of their Chinese identity, their murders would plausibly amount to genocide…” Genocide in this case would not apply to all ethnic Chinese killed, merely those killed because they were ethnically Chinese. This same line of reasoning led the Khmer Rouge Tribunal in 2018 to rule some of the killings in Cambodia from 1975-1979 (specifically, those directed against Cham Muslims) as genocide.

Additionally, the Tribunal on 1965 declared the massacres genocidal by arguing that they amounted to destroying part of a national group. To reach this conclusion, they acknowledge first how interpretations of the Convention have evolved to include autogenocide (killings against a country’s own population), as to accord with the spirit of Raphael Lemkin’s intended definition, as well as developments in recent history (notably, the Cambodian Genocide under Pol Pot’s Khmer Rouge regime). Then, recognizing the legal developments since the birth of the Convention, particularly the rulings made by Argentinian tribunals evaluating the atrocities of the 1974-1983 Dirty War, they note how the 1965 killings constitute genocide because “Indonesian society was completely and intentionally reorganized through terror and the destruction of a significant part of the ‘Indonesian national group.’” Thus, the court concludes that genocide occurred not because people were targeted based on political ideology, but because a large part of Indonesian society was systematically eliminated – not just the PKI, but a broad swathe of people that included “Sukarno loyalists, trade unionists, and teachers.”

This reading of the Convention is actually quite expansive, open to the same critique that Russia made decades ago that it would stymie a government’s ability to quell disorder and dissent. If a group engaged in open insurgency that threatened the existence or stability of a nation, and their supporters spanned a wide spectrum of civilians, one might wonder how a government could legitimately defend itself without falling to the charge of genocide. However, a key section of the Genocide Convention, which the Tribunal on 1965 focused on, is “intent.” To qualify as genocide, the eradication of a people must not only be a foreseeable consequence; it must actually constitute the primary purpose of the act, so instances in which governments defend themselves, whether in war or domestically, would spare them the charge. Indeed, the court acknowledges this when they judged that those behind the massacres fabricated the “malicious fantasy” of the PKI planning a country-wide takeover.

The concern with including political belief under the Convention is that too many acts would qualify as genocide, but the above demonstrates that this issue is not unique to politicide alone. Indeed, this concern applies to all the identity categories identified by the treaty. In any conflict, some national, racial, ethnic, or religious group inevitably gets targeted, but the Convention’s intent provision ensures that only killings motivated by the identity themselves count as genocide, not killings for some military objective. If the intent provision already limits the number of genocide convictions (some say excessively so) involving other identities like race and religion, why can courts not make the same determination for killings on the basis of political ideology? To distinguish between killing members for believing in a political ideology, and killing them for acting on certain beliefs that drive them to violence against the state, is of course a difficult call to make, and for this reason courts can presume innocence when unsure (as they do in any criminal trial). However, when a government blatantly massacres members of a political party in a time of peace, or when they clearly do not face a material threat to public safety, there is no reason why we cannot call this genocide. Plenty of evidence has emerged illustrating how the army orchestrated the killings in Indonesia, and the Tribunal on 1965 itself recognized that the alleged communist threat was but a “malicious fantasy.” It would be relatively straightforward to demonstrate intent in a case like this.  

Another objection barring the inclusion of politicide within the umbrella of genocide would posit a meaningful difference between destroying a group of people based on their politics versus killing a group based on their ethnicity, nationality, race, and religion. Genocide has often been characterized as the eradication of “a people,” but on what basis do the aforementioned characteristics alone, and nothing further, constitute “a people”? At first, the four categories seem to share the quality of being determined by birth. A person is never born a communist, but a person can be born Jewish, Tutsi, or Cambodian. Perhaps it is killing someone for something out of their own control – killing someone simply for being – that elicits our greatest disgust (a perspective that underpins harsher sentencing for racially aggravated crimes in some countries, for example).

Upon closer scrutiny, though, the ties connecting these categories seem to fray. Few religions tie themselves to race or ethnic group (Judaism being one counterexample, which may explain the inclusion of religion in the Convention as a response to the Holocaust). In what sense, then, is someone born into a religion? Surely, it cannot be because they have chosen to tread the path of Hinduism, Islam, or Christianity following birth, but because their parents and their immediate community adhered to the relevant set of beliefs.  But if this is the case, then why is being born into a communist community any different than being born into a Muslim community? Going into adulthood, the distinction between religion and political belief blurs even further, because at that point religion no longer becomes immutable – people can choose whether to continue the beliefs of their parents or not. Many do so at great risk (which may render change more difficult), but surely not at significantly more risk than anyone wanting to express their political support for gun control in the Deep South. National identity also veers close to political ideology. Not only is national identity mutable, but the act of changing citizenship constitutes one of the most political acts an individual can undertake. In some ways, nationality and religious belief are more similar to political belief than to race or ethnicity.

The Indonesian massacres of 1965 thus raise numerous questions over the legal definition of genocide. Clearly, international law does not hold that killing a people based on their membership or support for the PKI counts as genocide. But should it? Do we, or should we, really feel that different when a group is targeted for displaying a religious symbol on their front door versus displaying the hammer and sickle? What about the LGBT flag? What about for wearing glasses? Or possessing a certain level of income? Does eradicating the poor deserve a different kind of sanction than eradicating an ethnicity? By explicitly naming nationality, ethnicity, race, and religion as the relevant identities, the Genocide Convention declares that perpetrators who intend to destroy members simply for belonging to these groups deserve more (or at least different) sanction than those who kill groups along similarly arbitrary lines. One wonders whether those are tenable lines to draw.


Ariq is a junior in Grace Hopper. You can contact him at .