Guilty Until Proven Innocent?
Who Should Answer for Southeast Asia's Haze Crisis?
Picture a courtroom where an entire nation is the defendant: Indonesia. The country stands accused of allowing forest fires within its territory to spread hazardous haze across Southeast Asia. The prosecution presents satellite images of burning forests in Kalimantan and Sumatra, followed by photographs of Singapore's skyline in thick, yellowish smoke. The argument appears convincing that Indonesia's forests are burning, yet neighbouring countries are suffering the consequences. Surely, Indonesia must be responsible.
But the defence raises an objection. Does proving where the smoke originated necessarily prove who is legally responsible? Under international law, a state is not automatically liable for the acts of private companies operating within its borders. After all, the fires may involve private landowners and corporations, while drought and dry peatlands make them increasingly difficult to control. Can a government be held accountable for every fire occurring within its territory?
The judge turns to international law for an answer. Article 3 of the ASEAN Agreement on Transboundary Haze Pollution establishes that countries have a responsibility to ensure activities within their jurisdiction do not harm neighbouring states. Under Article 4, governments are also required to cooperate in preventing and controlling fires. However, international environmental law generally follows the principle of due diligence, meaning Indonesia is expected to take reasonable preventive measures given the known fire risks in its territory, not guarantee that fires will never occur. Whether Indonesia actually met that standard is a separate question.
The prosecution, however, is not satisfied. If Indonesia's responsibility depends on whether the government could reasonably have prevented the damage, shouldn't its history of forest fires make the danger foreseeable?
The prosecution presents its next piece of evidence: the 2015 haze crisis. According to the World Bank, approximately 2.6 million hectares of Indonesian land burned, causing an estimated US$16.1 billion in domestic economic losses. Smoke disrupted transport, tourism and education across the region. More than a decade later, Southeast Asia is once again facing serious haze pollution. The prosecution argues that a disaster occurring repeatedly can hardly be considered unexpected. Extreme weather may explain why fires spread, but it does not fully explain why the underlying risks have persisted despite government’s preventive efforts.
The defence responds with evidence of government action. By 19 October 2026, Indonesia's Forestry Ministry had imposed administrative sanctions on 32 companies, including permit suspensions and orders to restore damaged ecosystems. But this was enforcement after fires had already spread, which raises the question of whether it proves prevention or just reaction. Criminal investigations were also underway. These measures demonstrate that Indonesia has not simply ignored the problem.
Yet the judge identifies a loophole in both arguments. The recurrence of fires does not automatically establish negligence, but punishing offenders after fires have spread does not necessarily prove that sufficient precautions were taken beforehand. Were Indonesia's prevention, monitoring and enforcement measures reasonable in light of the known risks?
Then the defence introduces evidence that complicates the entire case: corporate involvement does not stop at Indonesia's borders.
On 23 October 2026, Singapore's National Environment Agency requested information from 10 Singapore-registered palm oil and forestry companies concerning their connections to Indonesian land concessions and fire-prevention measures. Singapore had also issued notices to 10 companies in Indonesia. Demonstrating that the economic activities connected to Indonesia's plantations are not confined to Indonesia itself.
This leads to the defence challenging the prosecution's original accusation. If corporate ownership, supply chains and economic benefits extend across borders, why should discussions of responsibility stop at Indonesia's borders? Shouldn't companies whose conduct contributes to environmental damage also be held accountable, regardless of where they are registered?
The prosecution agrees that corporations may bear responsibility, but points out that corporate liability and state duty are separate obligations, and one does not cancel out the other. A government cannot escape its duty to regulate activities within its territory merely because the businesses involved have foreign connections. Both the government and individual companies may have separate legal obligations.
Just as the judge prepares to consider the verdict, one final problem emerges. Under Article 27 of the ASEAN haze agreement, disputes between member states must be settled through consultation or negotiation. The agreement does not establish a compulsory international court to determine liability or award compensation. Ironically, the very courtroom in which Indonesia stands accused has no direct equivalent under the agreement designed to prevent this crisis. Even if a country believes its neighbour has failed to meet its obligations, finding a solution may prove to be more difficult than identifying the harm. According to a CNA report published on 30 October 2026, not a single company or director had been prosecuted under Singapore's Transboundary Haze Pollution Act since its enactment in 2014. Legal experts have stated the difficulties in obtaining evidence, investigating business across borders and most importantly securing cooperation from foreign jurisdictions.
But the absence of a courtroom does not mean the responsibility is impossible to identify. The prosecution has demonstrated that the fires occurred in Indonesia and that the government has an obligation to prevent foreseeable harm. What it has not established is that Indonesia's government should bear the greatest responsibility for the conduct of the private operators involved. The evidence instead points towards a more important line of investigation: who controlled the burning land, who was responsible for preventing fires there, and who failed to fulfil that duty?
The defence therefore presents the more convincing argument against assigning Indonesia as the primary culprit simply because the fires occurred within its borders. The defence presents a legal precedent, PT Kallista Alam v. Minister of Environment (2015), in which Indonesia’s Supreme Court upheld a ruling against a palm oil company for environmental damage caused by peatland fires in Aceh, ordering approximately IDR366 billion in compensation and restoration costs. The defence argues that the case demonstrates how companies can be held directly accountable to their failure to fulfil environmental obligation. However, the Trail Smelter arbitration between the United States of America and Canada (1938-41) established that a government may also bear international responsibility for the over-spilled pollution originating from private industrial activities within its territory. Applied to the ongoing haze crisis, these precedents suggest that accountability should be determined by examining both sides of conduct, being the plantation operations and the adequacy of Indonesia’ preventive measures. Rather than solely relying on the geographical origin of the fires.
Nevertheless, Indonesia’s regulatory obligations should not become a convenient reason to direct the region’s anger towards an entire region rather than examining the businesses whose conduct contributed to the damage. Where investigations establish that plantation operators unlawfully caused or failed to prevent fires, are those who should stand trial and be held responsible for the damages caused. Similarly, where the government has failed to exercise due diligence in preventing foreseeable harm, it must also answer for those failures. Ultimately, responsibility should be determined by looking at the conduct and legal obligations of all parties involved in the crime, rather than simply identifying where the fires occurred.
Indonesia entered the courtroom because the fires burned within its borders. But when the final verdict is delivered, shouldn't the ones standing trial be those who allowed them to burn?
Bibliography
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