Domestic implementation of international criminal law
Republic of Indonesia
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Crimes Crime of Aggression
Articles 111 and 111 bis of the Indonesian Penal Code provide the following regarding the waging of war against the state:
Article 111
"(1) Any person who colludes with either a foreign power or a king or a community, with the intent to induce them to conduct hostilities or to wage a war against the state, to strengthen them in the intention made up thereto, thereby promising them assistance or assisting them in their preparations, shall be punished by a maximum imprisonment of fifteen years.
(2) If the hostilities are committed or the war breaks out, either capital punishment or life imprisonment or a maximum imprisonment of twenty years shall be imposed.
Article 111 bis
(1) By a maximum imprisonment of six years shall be punished:1st, any person who colludes with a person or body domiciled outside Indonesia, with the intent to induce such a person or body to provide aid in preparing, facilitating or causing a revolution, to strengthen such a person or body in the intention made up thereto, or thereby promising or providing assistance to such a person or body; or to prepare, to facilitate or to bring about a revolution;
(2) The Articles with which or in respect of which the crimes described in the foregoing paragraph under 2nd-ly and 3rd-ly have been committed, may be forfeited."
2nd-ly, any person who imports an object capable of providing material aids in preparing, facilitating or causing a revolution, if he knows or has earnestly reasons to suspect that it is intended thereto;
3rd-ly, any person who is in possession of or makes as a subject of an agreement, an Article capable of providing material aid in preparing, facilitating or causing a revolution, if he knows or has earnestly reason to suspect that it is intented thereto and that said Article or any other Article for which it has been substituted, either has been imported with said intention, or has been intended thereto by or on behalf of a person or body domiciled outside Indonesia.Crimes Against Humanity
Crimes Against Humanity are in included in Articles 7 and 9 of the Law No. 26 (2000) establishing an Ad Hoc Human Rights Court. (According to Article 7 jurisdiction of the Court is limited to the crime of genocide and crimes against humanity). See:
Law of the Republic of Indonesia Number 26 of Year 2000 Concerning Human Rights Courts. [ENG].
23 November 2000
Undang-undang Republik Indonesia nomor 26 tahun 2000 tentang pengadilan hak asasi manusia.
[IND]. 23 November 2000Genocide
Genocide is included in Articles 7 and 8 of the Law No. 26 (2000) establishing an Ad Hoc Human Rights Court. (According to Article 7 jurisdiction of the Court is limited to the crime of genocide and crimes against humanity). See:
Law of the Republic of Indonesia Number 26 of Year 2000 Concerning Human Rights Courts. [ENG].
23 November 2000
Undang-undang Republik Indonesia nomor 26 tahun 2000 tentang pengadilan hak asasi manusia.
[IND]. 23 Nopember 2000War Crimes
Law No. 9 on the Use of Chemical Materials and the Prohibition of Chemical Materials as Chemical Weapons. [ENG]. 10 March 2008
Decree on the establishment of a Permanent Committee on the implementation and research of International Humanitarian Law, 1996. [ENG]. 24 June 1996
Decree No M.01-PR.09.01 on the establishment of the Permanent Committee on the implementation and research of International Humanitarian Law. [ENG]. 02 January 1980
Presidential Decree No. 246 on the Indonesian Red Cross Society. [ENG]. 29 November 1963
Regulations of the Highest War Authority No. 1 on the Display/Use of the Red Cross Sign and Words. [ENG]. 03 April 1962
Presidential Decree No. 25, legalizing the Statutes of the Indonesian Red Cross Society and recognizing the Society as a corporate body. [ENG]. 16 January 1950
Jurisdiction
◼ According to Article 5 of Law No. 26 Concerning Human Rights Courts of Indonesia:"A Human Rights Court also has the authority to hear and rule on cases of gross violations of human rights [the crime of genocide and crimes against humanity] perpetrated by an Indonesian citizen outside the territorial boundaries of the Republic of Indonesia."
Law No. 26 Concerning Human Rights Courts contains also the criminal procedure provisions applicable to the prosecution of the crime of genocide and crimes against humanity.
◼ Miscellaneous provisions of the Law No. 26 Concerning Human Rights Courts applicable to the crime of genocide and crimes against humanity:Article 42
[For practice regarding the principle of command responsibility, see the Judgments of the Indonesian Ad Hoc Tribunal for East Timor under the Judicial Decisions section below]
"(1). A military commander or person acting as military commander shall be held responsible for any criminal action within the judicial scope of a Human Rights Court perpetrated by troops under his or her effective command and control, and for any such criminal action by troops under his or her effective command and control arising from improper control of these troops, namely:a. a military commander or aforementioned person acknowledges, or under the prevailing circumstances ought to acknowledge that these troops are perpetrating or have recently perpetrated a gross violation of human rights; and
(2). Both police and civil leaders are held responsible for gross violations of human rights perpetrated by subordinates under their effective command and control resulting from a failure on the part of the leader to properly and effectively control his or her subordinates, namely:
b. a military commander or aforementioned person fails to act in a proper manner as required by the scope of his or her authority by preventing or terminating such action or delivering the perpetrators of this action to the authorized official for inquiry, investigation, and prosecution.a. the aforementioned leader is aware of or deliberately ignores information that clearly indicates his or her subordinates are perpetrating, or have recently perpetrated a gross violation of human rights; and
3. Actions as referred to in clause (1) and clause (2) shall be liable to the same penal provisions set forth in Article 36, Article 37, Article 38, Article 39, and Article 40."
b. the aforementioned leader fails to act in a proper manner as required by the scope of his or her authority by preventing or terminating such action or delivering the perpetrators of this action to the authorized official for inquiry, investigation, and prosecution.Article 46
See:
"For gross violations of human rights as referred to in this Act no lapse provisions shall apply."Law of the Republic of Indonesia Number 26 of Year 2000 Concerning Human Rights Courts. [ENG].
23 November 2000
Undang-undang Republik Indonesia nomor 26 tahun 2000 tentang pengadilan hak asasi manusia.
[IND]. 23 November 2000
International Criminal Court
Rome Statute of the International Criminal Court: The Republic of Indonesia is not a state party to the Rome Statute of the International Criminal Court.
The Indonesian Ad Hoc Tribunal for East Timor, Jakarta, Indonesia
(Human Rights Ad Hoc Tribunal at Central Jakarta District Court):
Judgment in the case of Tono Suratman.
No. 10/PID. HAM/AD. HOC/2002/PN. JKT. Pst. 13 May 2003. [ENG]
Judgment in the case of Adam Damiri.
No. 09/PID.HAM/AD.HOC/2002/PH.JKT/PST. 05 August 2003. [ENG]
Judgment in the case of Yayat Sudrajat.
No. 11/PID.B/HAM.AD HOC/2002/PN.JKT.PST. 30 December 2002. [ENG]
Judgment in the case of Letkol Inf. Soedjarwo.
No. 08/Pid.HAM/Ad.Hoc/2002/PN.JKT.PST. 27 December 2002. [ENG]
Judgment in the case of Asep Kuswani.
No. 06/PID. B./HAM. AD HOC/2002/PN.JKT.PST. 29 November 2002. [ENG]
Judgment in the case of Endar Priyanto.
No. 05/PID.HAM/AD.HOC/2002/PN.JKT.PST. 29 November 2002. [ENG]
Judgment in the case of Eurico Guterres.
No. 04/PID.HAM/AD.HOC/2002/PH.JKT.PST. 27 November 2002. [ENG]
Judgment in the case of Herman Sedyono et al..
Case Reg. No. 01/HAM/TIM-TIM/02/2002. 15 August 2002. [ENG]
Judgment in the case of Timbul Silaen.
No. 02/PID.HAM/AD.Hoc/2002/PN.JKT.PST. 15 August 2002. [ENG]
Judgment in the case of Abilio Jose Osorio Soares.
No. 01/PID.HAM/AD.Hoc/2002/ph.JKT.PST. 14 August 2002. [ENG]
Constitutional Court of Indonesia:"The Constitutional Court made a breakthrough in the legal system in Indonesia, notably in its Decision on Case No. 065/PUU-II/2004. The Court rejected the claims of Abilio Jose Osorio Soares, Former Governor of East Timor, who, at the time of filing the case, was in prison for gross human rights violations in East Timor in 1999. Abilio filed a judicial review of Article 43(1) of Law No. 26 Year 2000 concerning the retroactive principle (nulla poena sine lege) which is applicable to Ad Hoc Human Rights Court. According to Abilio, the retroactive principle is contrary to the right not to be prosecuted on the basis of a retroactive law that cannot be reduced under any circumstances (non-derogable right), as guaranteed by Article 28(1) of the Second Amendment to the 1945 Constitution. In the consideration of its decision, the Court even refers to the Universal Declaration of Human Rights (Article 29(2)), ICCPR (Articles 15(1) and (2)), and the European Convention on Human Rights (Article 7). Both the ICCPR and the European Convention clearly state that the principle of non-retroactivity cannot be justified to prevent the prosecution of serious crimes under international law. The Court also took into consideration the experience of the ad hoc international tribunals (ICTY and ICTR) and the International Criminal Court (ICC) which is considered as part of customary international law."
See:
[Source: Alternative Report of Indonesia’s ICCPR State Report 2013. Prepared by: Human Rights Working Group (HRWG) – Indonesian NGO, Coalition for International Human Rights Advocacy. December 2012]
Judgment of the Constitutional Court in Case Number 065/PUU-II/2004. (Judgment of the Constitutional Court of the Republic of Indonesia in a case of petition for judicial review of the Law of the Republic of Indonesia Number 26 Year 2000 regarding Human Rights Court).
Case Number 065/PUU-II/2004. 02 March 2005. [ENG]
See also the webpage dedicated to the Democratic Republic of Timor-Leste.
Chasing shadows: Indonesian war criminals and Australian law.
By Mark Byrne, Uniya Occassional Paper No.13, May 2007
Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999. S/2005/458, United Nations Security Council, 15 July 2005.
The Constitution of the Republic of Indonesia. (1945). As amended by the First Amendment of 1999, the Second Amendment of 2000, the Third Amendment of 2001 and the Fourth Amendment of 2002)
World Intellectual Property Organization website. [ENG]. [Last accessed 17Nov17] [External Link to pdf document]Indonesia: Constitutional Amendment to Be Considered
Global Legal Monitor, U.S. Library of Congress. [ENG]. [Last accessed 17Nov17] [External Link]
Penal Code of Indonesia. United Nations Office on Drugs and Crime. [ENG]. [Last accessed 17Nov17] [External Link to pdf document]
Hukum Indonesia. (Laws of Indonesia).
Legal Information Center, Constitutional Court of Indonesia. [IND]. [Last accessed 17Nov17] [External Link]
Decisions of the Constitutional Court of Indonesia
Constitutional Court of Indonesia. [ENG]. [Last accessed 17Nov17] [External Link]
A Quarter Century of U.S. Support for Occupation. The National Security Archive.
East Timor Truth Commission report uses declassified U.S. documents to call for reparations from U.S. for its support of Indonesian invasion and occupation of East Timor from 1975 until U.N. sponsored vote in 1999.
National Security Archive provides more than 1,000 documents to East Timor Truth Commission after Bush Administration refuses cooperation
National Security Archive Electronic Briefing Book No. 174, November 28, 2005. [ENG]. [Last accessed 17Nov17] [External Link]
Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (CAVR)
East Timor and Indonesia Action Network - ETAN. [ENG]. [Last accessed 17Nov17] [External Link]
Commission for Reception, Truth and Reconciliation in East Timor (CAVR)
[ENG]. [Last accessed 17Nov17] [External Link]
Indictments and Judgments from the Ad Hoc Tribunal for East Timor, Jakarta, Indonesia
UC Berkeley War Crimes Studies Center. [ENG]. [Last accessed 17Nov17] [External Link]
Doe v. Lumintang
East Timor and Indonesia Action Network. [ENG]. [Last accessed 17Nov17]. [External Link]
Todd v. Panjaitan. [No. 92-12255, slip op. (D. Mass. Oct. 26, 1994)].
(Case concerning the Santa Cruz Massacre). East Timor and Indonesia Action Network. [ENG]. [Last accessed 17Nov17]. [External Link]
East Timor and Indonesia Action Network - ETAN
[ENG]. [Last accessed 17Nov17] [External Link]
United Nations Mission of Support in East Timor, UNMISET (2002-2005)
[ENG]. [Last accessed 17Nov17] [External Link]
United Nations Transitional Administration in East Timor, UNTAET (1999-2002)
[ENG]. [Last accessed 17Nov17] [External Link]
Guide to Law Online: Indonesia. Law Library of Congress.
[ENG]. [Last accessed 17Nov17] [External Link]
Indonesia: National Implementation of IHL
International Committee of the Red Cross. [ENG]. [Last accessed 17Nov17] [External Link]
List of International Humanitarian Law Treaties to which Indonesia is a State party
(International Committee of the Red Cross). [ENG]. [Last accessed 17Nov17]. [External Link]