What is the Meaning of Gross Violation of Human Rights?

PERTANYAAN

What is a gross violation of human rights? Why does Indonesia regulate only two types of gross violations of human rights, namely crimes against humanity and genocide, in Law 26/2000 (Human Rights Court)? Whereas in the Rome Statute, there are 4 types.

INTISARI JAWABAN

Regarding what is meant by gross violations of human rights, gross violations of human rights are human rights violations as referred to in Law 26/2000 which include the crime of genocide and crimes against humanity.

 

Law 26/2000 only adopts 2 of the 4 international crimes regulated in the Rome Statute, namely the crime of genocide and crimes against humanity, and does not include "war crimes" and "crimes of aggression".

The non-inclusion of the substance of "war crimes" and "crimes of aggression" is a problem of its own, especially if serious human rights violations regarding "war crimes" and "crimes of aggression" are found in the future, the consequence is that these crimes cannot be prosecuted and adjudicated under Law 26/2000.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Apa yang Dimaksud dengan Pelanggaran HAM Berat? written by Erizka Permatasari, S.H. and was published on Wednesday, 6 April 2022.

This article is an update of the article entitled Here are 2 Gross Violations of Human Rights that are Regulated in Indonesia written by Milda Istiqomah, S.H., MTCP., Ph.D from PERSADA UB which was first published on Monday, 23 August 2021.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Before answering your main question about what is a gross violation of human rights, it is better to first understand what human rights are.

Definition of Human Rights

According to The United Nations Center for Human Rights, human rights are "those rights which are in our nature and without which we cannot live as human beings".[1]

Soedjono Dirdjosisworo defines human rights as rights inherent in every human being from birth, which cannot be limited, reduced, or denied by anyone because they are the values and human dignity of each individual.[2]

While juridically based on Article 1 number 1 Law 26/2000:

Human Rights are a set of rights that are inherent in the nature and existence of human beings as creations of God and are a grace from God which must be respected, held in the highest esteem and protected by the state, the law, the government and all persons for the sake of honor as well as protection of human prestige and dignity

What are Gross Violations of Human Rights?

Answering the question of what is meant by gross violations of human rights, gross violations of human rights are human rights violations as referred to in Law 26/2000 which include crimes of genocide and crimes against humanity.[3]

Types of Gross Violations of Human Rights

As explained in the previous sub-chapter on what constitutes gross human rights violations, in Indonesia the forms of gross violations of human rights include:

1. The crime of genocide, which is any act committed with the intention of destroying or exterminating all or part of a national group, race, ethnic group, religious group, by:[4]

 

1. murdering members of the group;
2. causing serious physical or mental harm towards members of the group;
3. creating conditions of life which would lead to physical annihilation, ether in whole or in part;
4. imposing measures intended to prevent childbirth within the group; or
5. forcibly transferring children from a particular group to another group

 

2. Crimes against humanity, which are acts committed as part of a widespread or systematic attack, knowing that the attack is directed against a civilian population, in the form of:[5]

 

1. murder;
2. annihilation;
3. slavery;
4. forced eviction or displacement of residents;
5. arbitrary deprivation of liberty or other physical liberties which violates the fundamental principles of international law;
6. torture;
7. rape, sexual enslavement, forced prostitution, forced pregnancy,forced castration or sterilization or other equivalent forms of sexual violence;
8. persecution towards a particular group or association based on similar political opinion, race, nationality, ethnicity, culture, religion, sex or other reasons which has been universally acknowledged as prohibited matters according to international law;
9. forced disappearance of persons; or
10. the crime of apartheid.

Romli Atmasasmita believes that gross violations of human rights are systematic and widespread. These two words are keywords that are inherent and absolute and must be present in every act of gross violations of human rights, especially in relation to crimes against humanity. The systematic and widespread elements are important and significant factors that distinguish gross violations of human rights from ordinary criminal offenses according to the Criminal Code or other criminal legislation.[6]

In the Rome Statute, systematic and widespread is referred to as widespread and systematic attack, where the attack is directed at the civilian population.

So, to answer what is meant by gross human rights violations, gross violations of human rights are any act of human rights violations, including crimes of genocide and/or crimes against humanity that meet the elements we described above.

Examples of Gross Violations of Human Rights in Indonesia

An example of gross violations of human rights in Indonesia is the case of Abilio Jose Osorio Soares who was found to have committed gross violations of human rights in the form of the murder of pro-independence civilians in the province of TK. I Timor Leste prior to the holding of an opinion poll to determine the future fate of the Timorese people in Dilli, which case was decided in Supreme Court Decision Number 45 PK/Pid/Ham Ad Hoc/2004.

In this case, at the courts of first instance, appeal and cassation, the defendant was legally and convincingly proven to have committed gross violations of human rights in the form of crimes against humanity (pp. 531-532). However, the Panel of Judges at the Judicial Review level later declared that he was not legally and convincingly proven guilty of committing the crime, and he was acquitted of all charges (pp. 557-558).

Why does Indonesia Only Regulate 2 Categories of Gross Violations of Human Rights?

After discussing what constitutes gross violations of human rights, let's answer your second question, why does Indonesia only regulate 2 categories of gross violations of human rights? In fact, according to the Rome Statute there are 4 types of gross human rights violations:[7]

1. The crime of genocide;
2. Crimes against humanity;
3. War crimes;
4. The crime of aggression.

Basically, Indonesia places gross violations of human rights in domestic policies and laws. Indonesia's intention to self-regulate the issue of internal armed conflict can be seen from the exclusion of "war crimes" and "aggression" in Law 26/2000. This is despite the fact that the law, when considered in its legal context, is a ratification of the Rome Statute. Law 26/2000 only adopted 2 of the 4 international crimes regulated in the Rome Statute, namely the crime of genocide and crimes against humanity, and did not include "war crimes" and "crimes of aggression".[8]

Explicitly, Law 26/2000 respects the rules of international law in classifying criminal offenses against a person's freedom and liberty. The exclusion of the substance of "war crimes" and "crimes of aggression" is a particular problem in Law 26/2000, especially if gross violations of human rights are found in the future. As a consequence, the crime cannot be prosecuted and adjudicated under Law 26/2000.

Apart from this, the political will of the government is also very decisive and has a great influence.[9] According to Frank E Hagan,[10] crimes against humanity are intended for political purposes and objectives, so criminologically this crime can be classified as a "political crime". Thus, any gross violations of human rights that occur in any country will always be politically charged, and not solely from the legal aspect.[11]

The absence of political will on this matter means that Indonesia's attitude towards the position of domestic and international law, especially regarding the regulation of war crimes and aggression, is unclear.

This is our explanation of what is meant by gross violations of human rights and why Indonesian law only adopts 2 of the 4 types of gross human rights violations stipulated in the Rome Statute.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Rome Statute of The International Criminal Court;
2. Law Number 26 of 2000 on Human Rights Court.

Court Decision:

The Decision of the Supreme Court Number 45 PK/Pid/Ham Ad Hoc/2004.

Reference:

1. Romli Atmasasmita. Pengadilan Hak Asasi Manusia dan Penegakkannya di Indonesia. Badan Pembinaan Hukum Nasional, Departemen Kehakiman dan HAM RI, 2002;
2. Soedjono Dirdjosisworo. HAM, Demokrasi dan Tegaknya Hukum dalam Konteks Ketahanan Nasional Indonesia. Makalah pada Penataran dan Lokakarya Dosen Kewarganegaraan Se-Jawa Barat Angkatan XVI Tahun Akademik 2003/2004. Kerjasama KODAM III Siliwangi-STHB. Bandung 5 - 6 Mei 2004;
3. Sylvester Kanisius Laku. Pelanggaran HAM Berat dan Hukumannya Menurut Statuta Roma. Bandung, 2005;
4. Widiada Gunakaya. Hukum Hak Asasi Manusia. Yogyakarta: Penerbit ANDI, 2017.

---

[1] Widiada Gunakaya. Hukum Hak Asasi Manusia. Yogyakarta: Penerbit ANDI, 2017, p. 56.

[2] Soedjono Dirdjosisworo. HAM, Demokrasi dan Tegaknya Hukum dalam Konteks Ketahanan Nasional Indonesia. Makalah pada Penataran dan Lokakarya Dosen Kewarganegaraan Se-Jawa Barat Angkatan XVI Tahun Akademik 2003/2004. Kerjasama KODAM III Siliwangi-STHB. Bandung 5 - 6 Mei 2004, p. 2.

[3] Article 1 number 2 jo. Article 7 Law Number 26 of 2000 on Human Rights Court (“Law 26/2000”).

[4] Article 8 Law 26/2000.

[5] Article 9 Law 26/2000.

[6] Romli Atmasasmita. Pengadilan Hak Asasi Manusia dan Penegakkannya di Indonesia. Badan Pembinaan Hukum Nasional, Departemen Kehakiman dan HAM RI, 2002, p. 2.

[7] Article 5 Rome Statute of The International Criminal Court.

[8] Sylvester Kanisius Laku. Pelanggaran HAM Berat dan Hukumannya Menurut Statuta Roma. Bandung, 2005, p. 23.

[9] Widiada Gunakaya. Hukum Hak Asasi Manusia. Yogyakarta: Penerbit ANDI, 2017, p. 212.

[10] Widiada Gunakaya. Hukum Hak Asasi Manusia. Yogyakarta: Penerbit ANDI, 2017, p. 218.

[11] Romli Atmasasmita. Pengadilan Hak Asasi Manusia dan Penegakkannya di Indonesia. Badan Pembinaan Hukum Nasional, Departemen Kehakiman dan HAM RI, 2002, p. 7.