Universal Jurisdiction to End Immunity in Case of Gross Human Rights Violations
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Devika Hovell giving a statement virtually as an expert for the Petitioners at a material judicial review hearing of Law No. 26 of 2000 on Human Rights Court, Wednesday (2/8/2023). Photo by MKRI/Ifa.


Devika Hovell giving a statement virtually as an expert for the Petitioners at a material judicial review hearing of Law No. 26 of 2000 on the Human Rights Court, Wednesday (2/8/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — Universal jurisdiction is a relatively rare but important form of jurisdiction. It leans more toward international criminal law than domestic law, and is a state’s contribution to international law enforcement. In some cases, its implementation is mandatory under international law whether and could also be part of the state’s obligation to provide every individual with access to justice.

The statement was made by Devika Hovell, an associate professor of public international law, at a material judicial review hearing of Law No. 26 of 2000 on Human Rights Court on Wednesday, January 25, 2023 in the plenary courtroom, with Annisa Cinantya Putri as the interpreter. The hearing for case No. 89/PUU-XX/2022 was presided over by Chief Justice Anwar Usman and the other eight constitutional justices.

Hovell defined universal jurisdiction as a permission from the international community for the universalization of the right to access to justice for the community of victims related to crimes that received the attention of the international community. It also does not affect the legitimate interests of the states that prosecute the crimes.

“So, this is not only about the role the prosecuting state play in the international community but also to the rights and interests of the state. This can be done through the implementation of universal jurisdiction,” she said.

She asserted that universal jurisdiction is not an absolute right or obligation but can be balanced with international obligations and other state interests. So, a state can refuse to exercise universal jurisdiction if it is not allowed by international law or limited by other interests, for example, a person cannot be tried for the same crime in another state.

Furthermore, in exercising universal jurisdiction, courts must respect immunity in international law where high-level public officials such as heads of state, heads of government, and ministers of foreign affairs enjoy immunity from the jurisdiction of other states, both in civil and civil crimes, and there are no exceptions in terms of international crimes. They will lose immunity after their term of office ends. In addition, except in case of heads of state, heads of government, and ministers of foreign affairs, no functional immunity applies to international crimes and should not hinder the enforcement of universal jurisdiction.

Another limitation to universal jurisdiction is if it disproportionately interferes with the interests of the state carrying out the prosecution. So, a state can choose not to exercise universal jurisdiction if it provides better access to the victim or interferes with the interests of the prosecuting state.

State authorities who are responsible for investigations as well as courts can assess whether universal jurisdiction will have a disproportionate impact on access to justice and also the state’s interests. This check can be carried out depending on how serious the crime is. These things can balance the exercise of the right to justice rather than the victim’s legitimate interests and goals of the prosecuting state.

Legality of International Jurisdiction

Meanwhile, Cheah W. L., an associate law professor of the National University of Singapore, said that based on international law and developments in ASEAN, Indonesia must exercise universal jurisdiction. She asserted that universal jurisdiction has a very good and solid legal basis in international law. Representatives of ASEAN countries, she revealed, have repeatedly stated before the UN that their states had recognized its validity and importance. Issues of sovereignty and international relations do not prevent Indonesia from exercising it, so Indonesia must participate in the formation of international law and customary international laws. In this regard, Indonesia is also an active player and leader in human rights both regionally and globally. Cheah also explained that the new Criminal Code allows for universal jurisdiction for crimes under international law.

In 2022, at the 77th session of the UN’s Sixth Committee, Indonesia stated that universal jurisdiction is one of the important and crucial tools to end impunity in cases of gross violations of international humanitarian law and other international crimes.

She also emphasized that Indonesia is not alone in this matter since Vietnam and Thailand had recognized that universal jurisdiction is an important instrument for fighting international crimes and immunity.

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The case No. 89/PUU-XX/2022 on the material judicial review of Law No. 26 of 2000 on Human Rights Court was filed by Marzuki DarusmanMuhammad Busyro Muqoddas, and the Alliance of the Independent Journalists (AJI) (Petitioners I-III). They argued that the phrase ‘by an Indonesian citizen’ in Article 5 of the Human Rights Court Law is unconstitutional. The article reads, “Human Rights Court also has the authority to hear and rule on cases of gross violations of human rights perpetrated by an Indonesian citizen outside the territorial boundaries of the Republic of Indonesia.”

At the preliminary hearing on Monday, September 26, 2022, the Petitioners argued that the phrase ‘by an Indonesian citizen’ in Article 5 of the Human Rights Court Law had eliminated the state’s responsibility to keep world peace, as the 1945 Constitution mandated, and eliminated the state’s responsibility in crimes in which another state is involved.

Human Rights Violations in Myanmar

The current political situation in Myanmar is still in disarray after the military declared a state of emergency. Gross human rights violations have been committed and are still ongoing.

Under the limits of Article 5 of the Human Rights Court Law, victims of human rights violations in Myanmar would find it difficult to fight for their constitutional rights. Myanmar citizens cannot petition the International Criminal Court because Myanmar did not sign the Rome Statute. It would also be impossible for a country such as Myanmar with its military junta to establish a human rights court to try their officials who have committed human rights violations. The Petitioners believe there has been a legal vacuum in the case of gross human rights violations in Asia, so there needs to be a way to protect citizens, not only of Myanmar but also of ASEAN in general, so that they could have the right to personal defense.

Therefore, in the petitum, the Petitioners requested that the Court grant the entire petition and “declare the phrase ’by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000 on Human Rights Court unconstitutional.”   

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 2/10/2023 18:55 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.


Wednesday, February 08, 2023 | 15:38 WIB 1059