A government worker removes ISIS flags painted on walls near Veteran Street in Surakarta City, Indonesia, in an attempt to discourage the promotion of the jihadist group in the region. Photo: AFP Forum/Agoes Rudianto

Despite strong public opposition against the repatriation of hundreds of Indonesian Islamic State (ISIS) militants and their dependents, the government has some awkward questions to address about the legality of closing the door on people President Joko Widido has referred to as “ex-citizens.”

Judging from his reported remarks in private meetings, Justice Minister Yasonna Laoly shares the concerns of lawyers and human rights activists that there are major legal obstacles in the 1945 Constitution and the 2006 Citizenship Law to making Indonesians technically stateless.

Political Coordinating Minister Mahfud MD announced on February 11 that the stranded Indonesians, destitute and most without passports or documents to prove their nationality, are not welcome to return home from Syria, Turkey and other Middle Eastern countries due to concerns they represent a terrorism threat.

According to one senior official, the president has already asked for a review of “all aspects” of the issue, noting that the government does not want to see it end up as an embarrassing debate in the usually fair-minded Constitutional Court.

Widodo and Mahfud sparked the citizenship debate by both referring to the ISIS followers as eks-WNI (ex-Indonesian citizen), but the chief security minister added to the confusion by later claiming the government was not stripping them of their citizenship.

“Their citizenship has not been revoked, therefore they can still come back to Indonesia,” says a prominent human rights lawyer, who wished to remain anonymous. “However they might have violated Indonesian laws by joining ISIS and for that they should be prosecuted and sentenced if found guilty.”

ISIS-affiliated groups are persistent threats to Indonesia’s national security. Image: Facebook

How they return, the lawyer points out, is not Jakarta’s concern. “The government didn’t send them to Syria, so it doesn’t have the responsibility to bring them back,” the lawyer said. “They have to come back by themselves. That is a matter of policy.”

Interestingly, while the mass Muslim organization Nahdlatul Ulama supports the government’s actions, the conservative 212 Movement, named after the campaign that brought down Jakarta governor Basuki Purnama, and other more hard-line Islamic groups have remained strangely silent on the issue.

The government now estimates there are about 500 fighters and their families held in Kurdish-controlled prisons and detention centers in northern Syria, with as many as 150 to 200 other Indonesians reportedly in detention or stranded in Turkey, Iraq and other Middle Eastern countries.

About 80% of the detainees are women and children, which presents the government with a major dilemma given that many of the wives are as hard-line as their militant partners — and even more so in some cases, according to some studies.

Legally, children under 18 cannot be rendered stateless, even if their parents are. While the number of children outnumber the mothers by a considerable margin, bringing them home, as the government now appears intent on doing, would leave them orphans in need of state assistance.

At one point in 2017, the Counter Terrorism Bureau (BNPT) said 1,321 Indonesians had joined or tried to join the ISIS terror group. A year later, as the caliphate began to fall apart, then-defense minister Ryamizard Riyacudu cut the estimated number in Syria and Iraq to 700 for unknown reasons.

Indonesia’s Foreign Ministry relies only on data given to its embassy in the Syrian capital of Damascus by the International Committee of the Red Cross (ICRC), which has access to the detention centers holding ISIS members. Neither will discuss numbers with reporters until the Indonesians have completed verification procedures.

Indonesians arrive at the Ain Issa camp, 50 kilometres north of Raqa, after fleeing the Islamic State (IS) group’s Syrian bastion on June 13, 2017. – Photo by Ayham al-Mohammad / AFP

Although the government has limited or no access to the detainees, Mahfud has complained in recent days that most of the Indonesians have reported to orang luar, or outsiders, a reference to the ICRC and US Central Intelligence Agency (CIA), which appear to have done all the accounting up to now.

Even in Turkey, a BNPT team had trouble tracking down stranded Indonesians to get a better idea of how many children are in limbo. “If the people overseas are just displaced, then report to the embassy,” Mahfud said on February 12. “But only if they are not terrorists.”

Government officials say they have the names, addresses and passport numbers of 288 detainees. But even if the CIA’s total figure of 689 does not contain a large number of duplications, it will still be an onerous task verifying what the real number is and identifying each individual.

A government source pointed to the case of one Indonesian militant investigated by the BNPT who had been shown on video firing an AK-47 assault rifle during fighting in either Iraq or Syria. In the end, it took three years to finally identify him.

While the preamble to the country’s 1945 Constitution only says the government is duty-bound to “protect all the people of Indonesia,” Article 26D of a subsequent 2000 amendment prescribes the right of every Indonesian to citizenship status.

Only Article 28J is open to interpretation, stating – without any reference to sanctions — that every citizen “has the duty to accept restrictions established by law for the sole purpose of guaranteeing the recognition and respect  of the rights and freedoms of others …”

The real point of contention, even within the Foreign Ministry and other branches of government, is the now-controversial Article 23 of the 2006 legislation, which lays down nine reasons why an Indonesian can lose his or her citizenship.

In the case of the ISIS followers, it is the clause that applies to anyone who has “voluntarily entered into foreign military service without the approval of the president” or has “declared allegiance to a foreign country or part of a said foreign country.”

Indonesian national ISIS members in Syria. Photo: Facebook

Like many analysts and national leaders, former foreign minister Hasan Wirajuda calls the self-declared ISIS caliphate a “quasi state” with its own ideology, funding and civil administration. But the ministry itself is understood to have a more nuanced view that would allow many of the Indonesians to return.

The human rights lawyer argues that the Indonesians should not automatically lose their citizenship because, under international law, ISIS is not a state.

Instead, it can be perceived as a criminal or terrorist organization, which means the detainees are open to prosecution for joining the group but should not be declared stateless.

Another clause in the 2006 law that might also be applied strips Indonesians of their citizenship if they have lived outside Indonesia for five consecutive years “and deliberately refuse to declare their intention to remain as Indonesian citizens” before that time limit ends.

Many ISIS militants and their families did not endear themselves to nationalist-minded Indonesians by making a public show of burning their passports, naively convinced their future lay with the short-lived ISIS caliphate.

It was an act of religious fervor that has left them in a twilight zone of their own making, their dream destroyed and their lives an endless nightmare thousands of kilometers from home.

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