Burden of Proving Crimes Against Humanity

KOMPAS/RADITYA HELABUMI

The mass of workers and students staged an action to commemorate International Human Rights Day in Jakarta, Tuesday (10/12/2019). Completion of past human rights violation cases is one of the homeworks for the current government.

The process of proving crimes against humanity is the focus of the discussion. The crime of genocide is one of the main subject-matter jurisdictions (Jurisdiction Ratione Materiae) of gross human rights violations. It is preposterous and has never occurred in Indonesia in any past cases of alleged gross human rights violations.

The crime of genocide must present specific intent (Dolus Specialis) to destroy or eliminate (intent to destroy), in whole or in part, a nation, race, ethnic group, or religious group (Schabas, 2016).

Law No. 26/2000 is very unique because it emerged during the post-1998 reform/democratization at the same time as the upheaval in East Timor following the referendum. The United Nation’s investigation team, the International Commission of Inquiry on East Timor (ICIET), concluded that gross human rights violations had occurred systematically and extensively, and recommended they be tried at a special tribunal.

Indonesia has persisted in its rejection of the International Ad Hoc Court, instead declaring its will and ability to try the cases at its own courts in compliance with international standards. In replacing Regulation in lieu of law (Perppu) No. 1/1999, which the House of Representatives (DPR) had rejected, it enacted Law No. 26/2000 on the Human Rights Court. This law also contains two temporal jurisdictions (Jurisdiction Ratione Temporis), in that in addition to adjudicating cases that occurred before the enactment of Law No. 26/2000 on 26 Nov. 2000, which can be applied retroactively on an ad hoc basis for acts depending on the locus (location) and tempos (time) of certain criminal acts, time it can be used to adjudicate cases that occurred after its enactment.

One of the similarities between an ad hoc court and a non-ad hoc court is in prosecuting cases of gross human rights violations that have not passed the statue of limitations (non-applicability of statute of limitations).

The formulation of Law No. 26/2000, especially for non-ad hoc human rights courts, refers to the 1998 Rome Statute of the International Criminal Court (ICC). Many ad hoc courts follow the provisions of the several International Criminal Tribunals established by the UN Security Council. One of the similarities between an ad hoc court and a non-ad hoc court is in prosecuting cases of gross human rights violations that have not passed the statue of limitations (non-applicability of statute of limitations).

Considering that Indonesia has not ratified the 1998 Rome Statute, Law No. 26/2000 selectively adopted only the criminalization of two types of crimes, the crime of genocide and crimes against humanity, while it ruled out war crimes and crimes of aggression.

KOMPAS/INSAN ALFAJRI

The atmosphere of the discussion of the National Commission on Human Rights on the issue of Papua, Friday (10/18/2019), in Jakarta. The commission requests that the President immediately resolve the problem in Papua.

Crimes against humanity include murder, extermination, enslavement, deportation or forcible transfer of a population; severe deprivation of liberty and other arbitrary deprivations of physical liberty that violates the basic provisions (principles) of international law; torture, rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilization, and forms of sexual violence; persecution of a particular group on political, racial, national, ethnic, cultural, religious, gender and other grounds universally recognized as impermissible under international law; enforced disappearance of persons, apartheid and other inhumane acts.

Objective of proof

In crimes against humanity, investigators and examiners must be especially vigilant. In addition to proving a criminal act that remains of a general nature, crimes against humanity have a special element. Perpetrators must have " knowledge of a widespread or systematic attack against a civilian population" (although not in detail).

Moreover, Law No. 26/2000 is missing a phrase in citing a translation from the 1998 Rome Statute in Article 7(2a), that is: "‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts ... against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”

The phrase “organizational policy” means that these attacks can also be carried out by non-state actors, like the Hutus in Rwanda and militias in other places.

Therefore, it must be proven that the crime was committed by design (planned, widespread, or systematic) by a state or organization and were not committed as an isolated, ad hoc, random or singular act, for example as a result of procedural error.

All these elements must be proven. Failure to prove them will lead to failure in classifying the act as a crime against humanity, and the case becomes a matter for the National Police or the Joint Military Police (POM) of the Indonesian Military (TNI), not the Human Rights Court.

Criminal justice system

For ad hoc cases of crimes against humanity, if they have been proven successfully, Komnas HAM, in an investigative capacity, can request the Attorney General\'s Office (AGO) as prosecutor to forward the case to the House of Representatives (DPR). On the DPR’s recommendation, the President may issue a Presidential Decree on the establishment of an ad hoc human rights tribunal for criminal acts of certain tempos and locus.

If the evidence is deemed minimally sufficient, then the case must pass through the criminal justice system. However, if the AGO deems that the proof is insufficient or orders a cessation under law, then a Warrant of Termination of Investigation (SP3) can be issued (Article 109, paragraph 2, Criminal Code/KUHAP). The same applies to non-ad hoc cases.

For the same reason, the AGO may issue a Notice of Termination of Prosecution (SKP2) during the proceedings. The AGO Law does not recommend overriding a case by reason of the public interest, as this is vulnerable to politicization.

This can be regulated in the Komnas HAM Procedureal Rules.

Under Article 91 of Law No. 39/1999 on Human Rights, Komnas HAM also has a legal instrument to stop proceedings in the Examination and Complaints of Victims of Violence (KTK) in the event of inadequate primary evidence; the complaint is not materially a violation of human rights; the complaint is filed with bad or insincere intent; more effective legal channels are available for resolving the complaint; or settlement is proceeding through available lawful efforts that comply with statutory provisions. This can be regulated in the Komnas HAM Procedureal Rules.

Kompas

Muladi

The important thing is that all must be based on the principles of fair justice (fair trial), equal standing before the law, and the right to a fair and open trial before an authorized, independent and impartial court.

Muladi, Commissioner of the National Human Rights Commission (Komnas HAM 1993-1998), Justice Minister 1988-1999