Bali nine executions illegal, but will Australia push the point?

The men who came out of the Indonesian prison system as leaders, a devout chaplain and introspective painter are a world away from the picture they presented in the days and months following their arrests .

Back then, they seemed the embodiment of the godfather and the kingpin, the intimidating thugs the Indonesian police were all too eager to portray them as: men capable of threatening to kill the families of the lower-level mules in the Bali nine conspiracy.

Pictures showed the pair angrily storming through crowds outside a Denpasar court, lashing out at the media throng. Sukumaran, muscles and scarred neck bulging out of a too-small white shirt in the dock, looked for all the world like a sullen extra from a Quentin Tarantino film. A cocky Chan nodded before the judge in 2006 as the prosecutor said "Hukam? Mati!",  requesting the death penalty. Chan's startled translator gasped: "You understand? You got death sentence". Smiling, Chan replied, "No problem".

In the witness box they denied guilt, exhibited no remorse, or stayed stubbornly silent. While their fellow couriers tearfully presented as victims of the threats of Chan-the-kingpin and Sukumaran-the-enforcer, they were playing up, it seemed, to the gangster image.

Looking, older, tougher and more aggressive than the mules they strapped packages of heroin to, the visual contrast was palpable.

Covering the first two overlapping court hearings involving 20-year-old Michael Czugaj and Sukumaran, Fairfax reported that they looked like "the babe and the beast". Czugaj fiddled, Sukumaran was silent and intense. Czugaj's mother, Vicki, was nervous but approachable, playing with a small key chain of the Virgin Mary. "I just wanted to give him something religious," she said.

Most of the Bali nine mules had an anxious, sympathetic relative to speak on their behalf and background the media. Chan and Sukumaran's parents had difficulties with English, and their younger relatives initially rebuffed media approaches.

Several Australian journalists became informal advisers to some of the confused parents attempting to negotiate the vagaries of the Indonesian justice system and demands of the local and international media. Chan and Sukumaran had no such counsel. They too could have claimed to be victims, pawns of a larger drug syndicate, but they did not.

They presented no tearful mothers or fathers who Australians back home could identify with. They lacked the Anglo Saxon good looks that helped create sympathy for fellow celebrity prisoners, Schapelle Corby and Scott Rush. The Australian government felt no great public pressure to advocate on their behalf and so, it seems, they did not.

It felt then as if the cases would follow an inevitable path. All would be jailed, but the younger, more sympathetic mules, more likely to garner sympathy back home, would escape execution. Chan and Sukumaran would be the sacrificial victims to demonstrate the toughness of the Indonesian system.

In Bali's courts, where compliance, apologies, political considerations (and wads of money under the table) are the stuff of judicial leniency, these were big errors to make.

The initial verdicts confirmed it. Judge Supratman​ said Chan's actions had "sullied Bali's reputation as a paradise island. The defendant showed no remorse during the trial. He was evasive. There is no reason to evade responsibility for his actions."

Sukumaran also should not escape the death sentence, Judge Dauh said. "The defendant showed no remorse over his actions. When the prosecution requested the death penalty, the defendant showed no reaction whatsoever."

In interviews and emails, Sukumaran explained, much later, the fear that made him so willing to take the blame, and so unwilling to identify the real kingpins, who were living comfortably in Australia or elsewhere: "I was never really worried about me. I just didn't want to leave a mess for my family".

So it was that headlines like that in Sydney's Daily Telegraph at the time saying, "No Sympathy" fitted the Australian mood. The die, it seemed, was cast.

In a parallel universe, Chan and Sukumaran would have spent their time in Kerobokan prison conforming to the stereotypes. Their anger and defiance consumed them, they joined prison gangs and took and distributed drugs. Eventually, mourned by few but their families, they were stabbed or bashed or overdosed inside, or were shot by the Indonesian authorities.

But that is not how it went.

Guided by some spirit inside each that was not evident in those defiant early months, supported by their families, a few dedicated prison visitors, and with lawyers acting pro-bono, they became the kind of men whom, this week, a whole country would mourn.

Much has been written about Sukumaran's work in the prison's workshops to offer haven and education to others who found themselves inside. He regarded this work itself as "a kind of art". His own artistic talent, his incredible drive, the demands he made on himself, and his close relationship with mentors Ben Quilty and Matthew Sleeth all, in retrospect, seemed to be building towards his furious final productive weeks. Then, under the spectre of imminent death, Sukumaran produced portraits of savage poignancy – pictures of his tormentor Joko Widodo and his friend Andrew Chan, an angry, gruesome rendition of the Indonesian flag, a bullet like those that would soon pierce his heart.

Most powerful, though were the self-examinations: Sukumaran recognisable despite his face disintegrating into bleeding paint; another with a hole in his chest and its counterpart, his own severed heart. These astonishing works flowed daily over the narrow strait from the prison island Nusakambangan and into the world, where they will stand as lasting testament to him and a talent now silent.

Chan will be remembered in Kerobokan as the pastor, mentor and counsellor to the lost, young men who came into his orbit and sought solace in a Christian God. Their journey mirrored his. He himself had been a teenage heroin addict and nihilist. His courtside carelessness in the witness box about the death penalty was barely confected: he told friends that, at the time, he was intending to kill himself. Then he found God, or God found him.

He was also, in his final years, planning and raising money to open an orphanage and community centre in Indonesia. In his final hours, he married his sweetheart, Febyanti Herewila. The final image to emerge of Andrew Chan was of him smiling with joy.

As for Australia, it took a long time to wake up to the way these men were changing. The Fairfax correspondent in 2005 covered the trial and the tough, early image they presented.  The next three correspondents  each gradually revealed the transformation that had somehow  begun within the  harsh environs of Kerobokan prison. Successive prison governors knew it: they gave favourable evidence at various appeals.

But the people who did not notice were those who ultimately mattered most. The Indonesian president, Joko Widodo, denied clemency in December with a flick of the pen, without bothering to consider the individual cases for Chan and Sukumaran.  He was ignorant of the fact that his own country's system – a system cruel enough to incarcerate the pair indefinitely in squalid conditions before suddenly deciding to shoot them – had helped forge Chan and Sukumaran into men who, on the night they died, would take a final roll call to check the welfare of the condemned, then look their executioners in the eye and lead a ragged chorus of Amazing Grace.

Not much more can be said about those moments, when two Australians, a mentally-ill Brazilian, a Ghanaian, three Nigerians and an Indonesian died; nor of the grim business that followed of declarations of death and coffins and transport arrangements.

Much more should be said about the future. As Indonesia prepares, this time with greater secrecy, to put the next "batch" of human beings to death, it's worth reflecting that Chan's and Sukumaran's death was not only outrageous, it was also, in all likelihood, illegal.

Indonesia, like neighbouring states and fellow anti-drug paranoics, Malaysia and Singapore, imposes the death penalty for drug crime. Unlike those two countries, though, Indonesia has signed the International Covenant on Civil and Political Rights.

That covenant, according to legal advice presented to the Australian government recently by Sydney barrister Christopher Ward and ANU academic Don Rothwell, means Indonesia can only carry out the death penalty for the "most serious crimes". Drug crime does not qualify.

On the night before the execution, Foreign Minister Julie Bishop revealed for the first time that such a case could be taken to the International Court of Justice, the judicial arm of the United Nations.

Bishop also revealed she had asked Indonesia to consent to this. While Indonesia submits to the court, it does not recognise its compulsory jurisdiction, which means it must agree to have what president Joko Widodo has called its legal "sovereignty" judged by international, rather than domestic, standards.

However, like Tony Abbott's request to talk to Joko, or Bishop's request to be officially informed of the timing of the execution, or the government's request that the 72-hour countdown to the firing squad not begin on Anzac Day, the Indonesians ignored Bishop's plea. No answer came.

If it was serious about its opposition to the death penalty, Australia would still push the point. A judgment against Indonesia in the International Court of Justice would be binding, according to the author of the legal advice, Don Rothwell. Indonesia may have to pay reparations for the illegal killing of Australian citizens, but, more importantly, it may prevent future Chans and Sukumarans suffering the same fate.

In reality, Indonesia is unlikely to consent for the case to be heard. An adverse finding would be humiliating for a country whose leaders have spent months talking about legal sovereignty and national pride, and decades stoking the fear and loathing of drug dealers, in defiance of clear evidence that killing them makes no difference.

The executions have already chilled diplomatic relations with Indonesia to virtually zero, and the Abbott government may reason that pushing hard to get the international case to the Hague would unnecessarily prolong that agony, and be bad for business.

Besides, demanding Indonesia submit to the court's jurisdiction might seem a little hypocritical after Abbott complained in another context that Australians were "sick of being lectured to by the United Nations".

There are also other Australian prisoners to think of. Five of the surviving Bali nine have applications before the Indonesian authorities for their life sentences to be given an end date. It's usually a standard procedure, but in the case of the Australians, a decision has been tortuously delayed, again without explanation.

Without an end date, the lives of Martin Stephens and Tan Duc Thanh Nguyen in Malang prison in East Java and Si Yi Chen, Michael Czugaj and Matthew Norman in Kerobokan meander on without structure. Some try to find purpose in their daily activities.

Others fail. Scott Rush, who has battled drug addiction and depression, is alone in Karangasem prison in East Bali and has not yet applied for an end date. Of the nine, Renae Lawrence is the only one who can look forward to applying for parole as soon as the end of this year. Even this decision, though, if Corby's case is a guide, can be politicised.

The fate of all is in the hands of Indonesia's Attorney General, H.M. Prasetyo​, the man most responsible for the drive to execute Chan and Sukumaran. He portrays himself as unrelenting in his pursuit of the scourge of drugs: except that The Jakarta Post reported after his appointment last year his involvement as a prosecutor in a number of notorious, drug-related corruption cases. In one case that he supervised, drug dealer Hariono Agus Tjahjono was given just three years jail over a 20kg haul of crystal methamphetamines. Prasetyo denied allegations that he was bribed.

Now he is Indonesia's chief law officer, though he only attained his highest position as a lawyer shortly before compulsory retirement as junior prosecutor for general crimes. On his appointment to cabinet, he was described in Jakarta as "not ... among the best and the brightest".

With men of his quality at the helm, there's no certainty that the seven remaining Bali nine members will be treated with any fairness or justice, particularly if Australia takes a case against Indonesia to court.

As for the broader relationship, it will survive this – it has has weathered as much or more in the past. We need each other. Our geography throws us together.

We are neighbours, if never close friends. It would be better for us, in fact, and the people on both sides, if there was more warmth between us.

Warmth, though, for a while, may be a little hard to come by.

Michael Bachelard was Indonesia Correspondent until the end of 2014.  Mark Forbes was the Fairfax correspondent from 2005 to 2008.