The Wording of Crimes against Humanity and Crime of Genocide in the Penal Code Bill Could Weaken the Law Enforcement

The current discussion of the Penal Code Bill is almost finished based on the Working Committee of the Penal Code Bill’s meeting result on 13 June 2017. The Working Committee ordered ‘Tim Perumus’ (Persons in charge to catalogue the provisions/chapters/articles in the discussed Bill) – ‘Tim Sinkronisasi’ (Persons in charge to integrate the sections and/or paragraphs in the discussed Bill or in the existing positive law) to immediately work to finalize the Committee’s meeting result. However, the previous result still left many problems, especially regarding the implications of the introduction of the Special Crimes in the Criminal Code Bill. The Institute for Criminal Justice Reform (ICJR) sees a fundamental issue regarding the wording of the Special Crimes in the Criminal Code Bill. There are 5 (five) Special Crimes of the most important concerns, namely the Crime of Narcotics and Psychotropic Misuse, Crime of Gross Human Rights Violations, Corruption Crime, Criminal Acts of Terrorism, and Money Laundering Crime.

ICJR and the National Alliance of the Penal Code Reform (Aliansi KUHP) since the beginning did not agree on the Special Crimes setting as formulated in the Penal Code Bill. ICJR and Aliansi KUHP see the Penal Code Bill is adopting the articles of Tim Perumus inaccurately, there are many changes of special crimes that are included in the Penal Code Bill. The point is that the special crimes are forced into an imperfect adoption, not to mention the different approaches such as the Narcotics Law that should be more in public health perspective rather than criminal law. This will cause uncertainty, as well as conflict between Penal Code Bill and legal instruments containing criminal provisions outside the Penal Code Bill.

Therefore, ICJR encourages all of the state institutions such as The National Human Rights Commission (Komnas HAM), National Agency for Counter-Terrorism (BNPT) and Center for Financial Transactions Reporting and Analysis (PPATK) to react and ensure the fate of the special crimes in the Penal Code Bill. The position and recommendations of these institutions are important to be heard by Tim Perumus. In addition, the formulation model implies that there is a Transitional Bill for the implementation of the new Penal Code, which until now has never been issued by the government. Without the Penal Code Transitional Bill, it can be expected that the implementation of the Penal Code formulation in the future will have serious obstacles.

One of the crimes that will be included in the Penal Code Bill is crimes against human rights which including: crime of genocide, crimes against humanity, war crimes in armed conflict. These crimes in the development of international criminal law are special crimes that are categorized as “gross violation of human rights”.

In the domestic law, some of these crimes; namely genocide and crimes against humanity have been regulated in a special law which is Law No.26 of 2000 on the Human Rights Court.[1] In accordance to the Law, crime of genocide and crimes against humanity fall into the category of “gross human rights violations” which has different characteristics from the general criminal acts as regulated in the current Criminal Code.

The placement of the crime of genocide and crimes against humanity in the Penal Code Bill with a weaker formulation will create difficulties in making effective prosecutions for these crimes. The result is a flaw in aiming to provide human rights protection. There are at least three reasons why placing crime of genocide and crimes against humanity is considered incorrectly included in the Penal Code Bill:

Firstly, the wording of crime of genocide and crimes against humanity in the Penal Code Bill still has differences with the wording of gross human rights violations as regulated in Law No. 26 of 2000 on Human Rights Court. These differences are including the name of the crime of genocide and crimes against humanity. The wording of the provisions in the Penal Code Bill concerning crime of genocide and crimes against humanity to be in accordance with the Law No.26 of 2000 is a problem, because it is repeating the mistake as inside the Law No.26 of 2000 on Human Rights Court. The drafters also not provided the Element of Crimes, since it is a very important part to provide clarity in interpreting the intention inside the crime of genocide and crimes against humanity.

The incomplete and false wording from its original provisions in the Rome Statute of 1998 has weakened the gravity of these crimes. Consequently, if the wording of genocide and crimes against humanity in the Penal Code Bill is maintained under such formulation it would weaken the prosecution effectiveness of these crimes.

This condition is different from the wording of crime of genocide and crimes against humanity in the Law No.26 of 2000 on the Human Rights Court. Despite the incomplete formulation, there is a phrase that says that crime of genocide and crimes against humanity in the law No.26 of 2000 is in line with the Rome Statute 1998. This implies tha judges still have an outlook to interpret the formulation of crime of genocide and crimes against Humanity in accordance with its original instrument, the Rome Statute 1998.

Secondly, crime of genocide and crimes against humanity have characteristics that are different from those of ordinary crimes, which consequently differs from the general principles of criminal law. Crime of genocide and crimes against humanity do not recognize the principle of Period of Prescription and the abolition of doli incapax on the command responsibility defense.

Thirdly, the crime of genocide and crimes against humanity is an international crime, which under international law is closed down for an amnesty. Based on the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law; General Comment 31, the Update Set of Principles to Combat Impunity in Principles 1, 19, 22 and 24 stipulate that in the event of genocide and crimes against humanity, each State has the duty and responsibility to prosecute and punish the perpetrators and not to grant amnesty to the state officials or state apparatus until they are prosecuted before the court. So there is State obligation to punish the perpetrator and compensate the victim.

Book I (General Principles) of the Penal Code Bill provides the abolition of the prosecution due to the amnesty granted from the President (Article 152g). This regulation provides a gap for crime of genocide and crimes against humanity to not be prosecuted due to amnesty. This is sharply contrasting to the international law that requires each State to prosecute the perpetrators of crime of genocide and crimes against humanity.

It is feared that the inclusion of crime of genocide and crimes against humanity in the Penal Code Bill will weaken the gravity of the crimes, because these crimes are known as extraordinary crimes and international crimes that contained violations of Jus Cogens and Erga Omnes as the highest norm in international law that overrids other norms and is a duty of all States to do the prosecution. The outcome is, towards these serious crimes, the legal principles and doctrines indicate that there is enforcement of different general principles to ensure an effective punishment.

So positioning these types of crimes with the current wording in the Penal Code Bill and forcefully imposing them into the upcoming Penal Code will lead to weaknesses in terms of crime formulation as well as insufficiency of the applied general principles. Even it is potentially inconsistent with the general principles of criminal law in the Book I the Penal Code Bill.

Therefore, these types of crime should be taken out of the Penal Code Bill. While the revision of the wording and adoption of specific principles can be done through amendment of the Law No.26 of 2000 on Human Rights Court, to sustain the effectiveness of the prosecution for crime of genocide and crimes against humanity.

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