International law expert Hikmahanto Juwana testifying for the President/Government virtually at the material judicial review hearing of Law No. 26 of 2000 on the Human Rights Court, Tuesday (3/14/2023). Photo by MKRI/Ifa.
Tuesday, March 14, 2023 | 16:00 WIB
JAKARTA (MKRI) — Indonesia has not ratified the Rome Statute since there is hesitancy if anyone who is deemed a hero to the nation is declared a loser someplace else, said international law expert Hikmahanto Juwana in his testimony as an expert for the President/Government at the material judicial review hearing of Law No. 26 of 2000 on Human Rights Court on Tuesday, March 14, 2023 in the plenary courtroom of the Constitutional Court (MK) before Chief Justice Anwar Usman and seven other constitutional justices.
The Rome Statute of the International Criminal Court was signed in Rome on July 17, 1998. Indonesia’s preparation towards ratifying it is shown by educating military officers in humanitarian law. More of these officers are required. Most importantly, Hikmahanto said, judges and prosecutors must be familiar with humanitarian law before processing perpetrators of gross human rights violations so that Indonesia would escape the “unwilling” category.
“After 2004, there has been many changes in the world on human rights violations, including educating the Indonesian TNI (military) officers in humanitarian law. This also applies to countries such as the US. Not only developing countries commit gross human rights violations,” he explained.
He also said that Indonesia should ensure that war criminals from developed countries and Europe face trial for having committed gross human rights violations.
Hikmahanto also explained that gross human rights violations are now international crimes. “Gross human rights violations became international crimes after the Second World War, where perpetrators who initiated and were involved in war were pursued, prosecuted, put to trial, and sentenced. The term ‘gross human rights violations’ became an official term. These crimes might not be severe offenses but this term has a legal meaning,” he stressed.
Universality of Gross Human Rights Violations
Gross human rights violations are universal. If Indonesian citizens commit such crimes, the Indonesian human rights courts have jurisdiction over them. However, do they have jurisdiction over violations committed outside of Indonesia by foreign nationals?
“This is the issue being discussed, which the Court will determine. As an expert, I’d say there is no need for putting foreign nationals to trial in Indonesian courts. If any [other country] needs [to put their citizens to trial], please request the Indonesian Government to extradite them, and the Government would,” he said.
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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 Darusman, Muhammad 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.”
Author : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/15/2023 08:55 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.
Tuesday, March 14, 2023 | 16:00 WIB 303