Redefining human rights enforcement efforts in Indonesia

Redefining human rights enforcement efforts in Indonesia

THE MANY cases of human rights violations in Indonesia that have not been resolved at the national level are proof that Indonesia needs to reformulate its national human rights enforcement efforts.

This can start by improving special legal instruments (lex specialis), namely Law (UU) No. 26 of 2000 concerning the Court of Human Rights.

Transition policy

In the context of human rights violations, human rights courts are the primary means that can deliver justice when these violations occur. This is particularly the case for human rights violations which fall within the authority or jurisdiction of the Court of Human Rights as stated in article 7, article 8, article 9 of law number 26 of the year 2000 concerning the Court of Human Rights. These are genocide and crimes against humanity.

But in its implementation, even though Indonesia already has a human rights tribunal and also a mechanism for establishing a human rights tribunal ad hoc, many cases of human rights violations falling within the jurisdiction of the human rights tribunal cannot be resolved. So much so that the objective of giving the right to justice is not achieved.

So far, the files of a number of cases of human rights violations that have occurred in Indonesia have only been the subject of back and forth from the attorney general’s office and Komnas HAM. Cases of human rights violations include the events of 1965-1966, the mysterious shootings of 1982-1985, Talangsari Lampung 1989, the Geudong house and the Aceh Sattis Post 1998, the enforced disappearances 1997-1998, Trisakti, Semanggi I and Semanggi II 1998, Aceh KAA 1999 intersection, Wasior and Wamena 2001, Jambu Keupok Aceh 2003, Paniai incident 2014.

Although the solution is very complex, the government of today has a responsibility to be able to resolve cases of human rights violations. And this does not only require the commitment and political will of the current government, but also a very strong transitional political power. In addition, a number of parties suspected of being involved in a number of cases of human rights violations are still in political dimensions and positions within the current government.

In the absence of a settlement of a number of cases of human rights violations, this has an impact on the emergence of new cases of human rights violations in Indonesia. This means that the failure to enforce human rights will greatly affect the respect and protection of human rights in the future.

In fact, the promotion, realization, protection and fulfillment of these human rights have been universally recognized. Not only as a legal responsibility of the State, but also as a moral responsibility hidden in the conception of the Indonesian State as the rule of law, based on Article 1 paragraph 3 of the 1945 Constitution.

In other words, the state is obligated to take concrete steps to address the human rights issues facing Indonesia. In addition, human rights violations have been universally recognized and recognized as the enemies of all mankind (hostis humani generis).

Perspective of the victim

The suboptimal application of human rights in Indonesia cannot be separated from the many substantial weaknesses contained in Law number 26 of 2000. The existence of these weaknesses is closely linked to the formulation and training process.

Formally, the enactment of Law No.26 of 2000 which became the basis for the establishment of a Human Rights Tribunal is the mandate of Article 104 of Law No.39 of 1999 on Human Rights. the man. However, it cannot be denied that the establishment of the Human Rights Court Act is actually a reaction to international pressure for Indonesia to be able to prosecute allegations of gross human rights violations. man who performed in East Timor in 1999.

Pressure also exerted by the Office of the United Nations High Commissioner for Human Rights has forced Indonesia to “speed up” the establishment of a human rights tribunal at the national level. It’s just that it actually makes the wording of the Human Rights Court law less than optimal.

However, it must also be recognized that the law is an important step in establishing a formal system for the protection and enforcement of human rights in Indonesia. It is also a legal instrument that strengthens the protection of national human rights after Law No. 39/1999.

One of the reasons for the delay in resolving a number of cases of serious human rights violations in the past (prior to the enactment of Law 26 of 2000) is the provision in the law that requires the DPR is “involved” in determining whether or not any gross human rights violations have taken place. At the same time, it also recommends the creation of a human rights tribunal ad hoc to the President.

Procedure for establishing a human rights tribunal ad hoc adjudicating cases of serious human rights violations in the past that depend on the DPR’s proposal or recommendation, of course, creates problems. Because the formation of the tribunal will be very subjective and conditional on compromises and political interests.

In addition, the DPR’s intervention to determine whether there had been gross human rights violations also made resolving cases of gross human rights violations a political process rather than an objective legal process. Indirectly, it diminished the role of the Court of Human Rights as a judicial institution with the power to examine, judge and decide whether or not there have been human rights violations. .

Another weakness of this law can also be seen from the victim’s point of view. Although this law regulates the compensation, restitution and rehabilitation of victims of human rights violations, in particular serious human rights violations (article 35). However, the mechanism for the realization of victims’ rights has legal limits, because it is very dependent on the aspect of sanctioning the perpetrators, and not because incidents of gross human rights violations have occurred.

This means that although these rights have been explicitly stated in this law, the current procedures are very rigid and prevent victims from enjoying these rights as quickly as possible. (See the cases of Tanjung Priok 1984, East Timor 1999 and Abepura 2000)

Ideally, resolving cases of gross human rights violations does not only aim to punish perpetrators.punitive justice), but also the recovery of victims (restorative justice). Therefore, in response to mediating the interests of victims and reducing the loss and suffering of victims. The mechanism for the realization of victims’ rights should be regulated separately by court rulings as a legal step forward, and not rely on court rulings against perpetrators who have obtained permanent legal force.

Thus, the delay in the legal proceedings against the perpetrator is not the cause of the delay in the process of restoring the rights of the victim. A legal reconstruction like this is very necessary in order to be able to strengthen the position of the victim. Thus, the restorative justice expected by victims and their families can be achieved. In addition, the obligation to ensure that victims of human rights violations benefit from effective remedies (effective remedy) is a state obligation that is implicit in all regulations relating to the protection of human rights in Indonesia.

Last hope

A number of weaknesses contained in Law number 26 of 2000 must be corrected immediately, as a form of Indonesia’s legal political commitment to the protection and enforcement of human rights at the national level. . This legal policy is an effort to formulate and achieve better statutory regulation that suits current needs.

Do not allow Indonesia’s serious attention to placing the issue of human rights as a central issue only manifests itself at the international level through its role in international forums, one of which is to be member of the UN Human Rights Council for 5 periods (2006 -2007, 2007-2010, 2011. -2014, 2015-2017, 2020-2022).

The improvements brought about by the revision of these legal instruments must also be followed by the immediate ratification of an important international legal instrument, namely the Rome Statute of 1998. It is an integral part of Indonesia’s efforts to uphold its rights. national human rights in the future.

Thus, when the National Court of Human Rights is unable to work effectively and results in the realization of the principles of Eligibility regulated by Article 17 of the Rome Statute, i.e. incapable (unable) good at obtaining evidence, witnesses and suspects, and unable to carry out the judicial process. Or I don’t want (will not) to take real and concrete measures to ensure respect for justice. This is where the principle of complementation resides (Principle of complementarity) of the International Criminal Court as the victim’s last hope for justice.

Reflecting on the many cases of human rights violations in Indonesia that have not been resolved to date, the International Criminal Court (ICC), whose position is a complementary institution to national courts on the basis of the Preamble and Article 1 of the Rome Statute, should be able to ensure effective law enforcement for human rights violations in Indonesia in the future. In addition, it is also a way out when the national human rights enforcement mechanism in Indonesia is once again deadlocked.

These steps are very urgent to do immediately. The aim is not only to bring justice to the victims, but also to be able to eliminate the practices of impunity (immunity) for the human rights violations that have occurred in Indonesia. In addition, to ensure that there are no more unresolved human rights violations in the future. With a bit of luck.


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