Discover Crimes against Humanity as Gross Violations of Human Rights: International and Indonesia Perspectives

Human rights law is not identical with international humanitarian law. However, between one another, they have similar rules and objectives in essence, despite the difference in formulation, including in terms of gross violations of human rights context. This article attempts to explore both the relationship and the difference between gross violations of human rights and international humanitarian law violations. While in the Indonesian context, crimes against humanity are arranged in the Human Rights Court Law. However, it still raises discourses related to the limitation of crimes against humanity that differ with international law instruments, and it also raises problems for judges and the Human Rights Court to define crimes against humanity as the legal ground for several gross violations of human rights that are adjudicated within this framework. This article uses the normative legal research method to conduct, analyze, and arrange crime against humanity formulations with a statutory law approach, a legal conceptual approach, and a case law approach. This article concluded with a limitation that highlights whether gross human rights violations can be prosecuted and punished using international humanitarian law. This article also stresses normative and conceptual aspects related to the development of crimes against humanity, its elements of crime, and its application by the judicial system.

Discover Crimes against Humanity… kinds of violations, it should be defined, and made clear which legal sources stipulate legal punishment for both kinds of violations of humanitarian law or gross violations of human rights. 3 Therefore, when we discuss legal enforcement from legality perspective and the Judges authority to adjudicate and lift the sanctions for these crimes. 4 The gross violations of human rights formally entered legal lexicon in Indonesia after the enactment of Law Number 39 of 1999 on The Human Rights (in further is defines as Law on Human Rights) and Law Number 26 of 2000 On The Human Rights Court (further defined as Law on Human Rights Court). 5 These Laws are an important cornerstone of "reformasi" achievement that became legal frameworks to adjudicate the gross violations of human rights perpetrators (including state officials) to the court, 6 and also adsorb new legal concepts or legal terminology into Indonesia's legal system including genocide, crime against humanity, command responsibility, and other derivate concepts in international law instruments. 7 It is also recognized to have significant impact on legal practice, and the legal educational framework in Indonesia.
Based on international human rights literature, we can conclude that gross violations of human rights terminology are not formulated into formal ways. 8 This is reflected in the absence of a common definition of gross human rights violations in international legal literature.Theo van Boven with his research related to the rights of gross violation human rights victims, that illustratively describes gross violations of human rights terms, 9 caused by difficulty in defining them in broader ways. Boven revealed that the phrase "gross" is used to stress the phrase "violations" caused by the severity level of crimes that are committed. Moreover, the phrase "gross" is related to the types of human rights violations that are non-derogable rights violations and therefore shall not be reduced in any circumstances. It is quite similar to the Boven argument.
The Third Restatement of Foreign Affairs Relations of the United States, especially in Part 702, defines "a violation is gross if it is particularly shocking because of the importance of the rights or the gravity of the violation," 10 emphasizing its ties to state policy. 3 Septika, L.P.S. (2016). Tanggung

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In different ways, the Law on Human Rights Court stresses that it belongs to an action classified as a criminal act in international law, including genocide and crime against humanity.
Based on this limitation, the legislature and government have a common understanding that gross violations of human rights are divided into just two types of crimes that are internationally recognized as the worst types of crimes. 11 Moreover, this law also transforms gross violations of human rights concepts into international criminal crimes. This law was believed to reduce gross violations of the human rights concept into two terms of international crimes, both genocide and crime against humanity.
There are several gross violations of human rights in Indonesia in recent decades. This shifts new discourse that gross violations of human rights are domestic issues and also international community concerns, especially in defining the perpetrators of gross violations of human rights in any Criminal Court or Human Rights Court in several countries. 12 In Indonesia, gross violations of human rights continue. It has no definite universally accepted concept as internationally known, 13 In this context, the Law on Human Rights, Lieu in Law of Human Rights Court, and the Law on Human Rights Court have different definitions of this concept. In the two previous laws, the gross violation of human rights is defined without a crime element related to systematic or widespread crimes against humanity. It can be categorized as gross violations of human rights for any violations as ius cogent. Moreover, the concept of gross violation of human rights is defined as a conflation of human rights and internationally criminalized crimes. 14 Based on International Law history, it also placed as part of international crimes. 15 The Indonesian government's concern in recent international issues concerning crimes against humanity was realized with the establishment of Indonesia's Human Rights Court, as part of Indonesia's obligations in the civilized international community.Hence, it also related to Indonesia's consequences of ratifying several international human rights law instruments, 16  This policy as positive laws shall interpret as certain norms that explicitly regulates into national statutory law forms, and has legal binding force as Austin said, 'The Command of the Sovereign". 19 The Law on Human Rights Court also placed as the realization of Indonesia's Government concern and good will to punish the perpetrators of crime against humanity in Indonesia that recognized as gross violations of human rights.
Based on the main legal problematic framework explained in this section, the importance of this article is twofold: first, to conduct, analyze, and formulate certainty norms related to crimes against humanity from a broader spectrum of international human rights law instruments perspective related to the placement of crimes against humanity in common perception, and second, to conduct, analyze, and formulate the crimes against humanity from a narrower spectrum of international human rights law instruments perspective related to the placement of crimes against humanity in common perception.

METHOD
This article was conducted based on normative legal method, 20 that placing the legal research to analyze and found the legal problematic 21 in a system of statutory law, 22 In this context, this article was limited to analyzing crimes against humanity as a type of gross violation of human rights both from international or national legal instruments and further arrangements 17 Grenfell, K. (2013). Perspective on the applicability and application of international humanitarian law: the UN Context, International Review of the Red Cross, 95(891-892), 645-652, DOI: https://doi.org/10.1017/S1816383114000162 pp. 649-650. 18 Setiyono, J., (2007

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related to Indonesia's national statutory laws as a legal framework to prosecute and punish the perpetrators of crimes against humanity. This article's method was strengthened with a statutory law approach, a legal conceptual approach, and a legal case approach.

A. Crimes against Humanity as International Crimes: International Law Perspectives
The international crimes can be defined as any type of crime that has the potential to cause losses to the international community, 23 such as material losses (causalities and properties) and immaterial losses (psychology and mentality) 24 If it was caused by human rights violations within coercive measurement, then it was adjudicated by every national court or international court based on their jurisdiction or competence to examine and adjudicate all perpetrator. 25 Based on international human rights instruments, in the early era, there were three types of international crimes, inter alia (1). Crimes against peace, including acts of premeditation or declarations of war aggression;(2) War Crimes, including violations of customary law related to war; and (3) Crimes against Humanity, defined as cruel acts committed during war against noncombatant or civilians. 26 However, before these three categories were upheld as international crimes, since the 18th century, international society had recognized piracy and slavery as international crimes. It cannot be separated with the importance of trade link by countries, the piracy that happens by trade ships in the overseas is defines as common enemies of international community. 27 Moreover, the slavery that happens in these centuries mocks dignified acts and is contrary to human values. 28 The development of international crimes, as explained above, shifts the classification of international crimes into three main categories, inter alia.: a. The international crimes that came from International Customary Law, and in recent development applied by countries and recognized within International Law framework. This international crimes include piracy, slavery, war crimes that include crimes against humanity; b. International crimes that came from several international conventions, that historically can be determined between international crimes as a subject of a single convention, for example, the Single Narcotics Convention, 1961, and international crimes as a subject of multiple 23  The crimes against humanity as international crimes, according to Muladi,29 shall be fulfilled three main elements, inter alia first, international elements including the direct threat to world peace and security, the indirect threat to the world peace and security, and it was shocking to the conscience of humanity. Second, transnational elements including it was conduct affecting more than one state, including their citizens and has special means and methods transcend national boundaries. Third, necessity elements related with the need to cooperate between states to enforce international crimes.
The international community has common understanding to recognize crimes against humanity as international crimes. 30 32 The crimes against humanity defines as a cruelest international crime's that contrary with humankind values in ever centuries, 33 in this context, the international community has consensus thought that crimes against humanity belongs to hostis humanis generis. 34

Current Laws and Future Prospects
The Indonesian Government has been regulating the legal settlement mechanism towards gross violations of human rights, as stipulated in the Law on Human Rights Court. This  39 Abidin, Z. (2010). Op.Cit., p. 14.

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Discover Crimes against Humanity… or civil officer both from Germany Nazi or Japan soon after the end of the Second World War.
The Article 6 (c) Nuremberg Charter defines the acts as crimes against humanity are killing, exterminating, enslaving, deportation or other inhuman acts directed against civilian population before or during war, persecution based on political, racial or religious grounds in the context or related with a crime within the jurisdiction of the Tribunal, whether or not violates domestic law of the country in which this crimes occurred. 40 The trial of crimes against humanity also stressed in the United Nations General Assembly, 11 Desember 1946 41 , and also by the International Commission on the International Law 42 . The crimes against humanity concept was refined further by domestic courts in several countries, including Israel and France. In this era, international customary law recognized by common civilized nations places crimes against humanity as international crimes within the ius cogens degree and shall have an impact through obligatio ergo omnes. In this context, the perpetrators would be punished individually by every country with universal jurisdiction. Moreover, the crimes against humanity as recognized by international customary law do not need special requirements/nexus related to armed international conflict as defined in the Nuremberg Statute and Tokyo Charter. 43 Furthermore, gross violations of human rights happen whenever non-derogable rights or violations of ius cogens have been conducted by the state or their officials. The non-derogable rights that cannot be reduced or violated under any circumstances, including war conditions, whose protection cannot be delayed for any reason. 44 The ICCPR defines non-derogable rights as including rights to life (Article 6), rights not to be tortured (Article 7), rights not to be slaved (Article 8), rights not to be punished for activities that do not belong to crimes when such acts are conducted (Article 15), rights to be recognized as equal before the law (Article 16), and freedom of thought, beliefs, and freedom to devote to any religion (Article 18). 45 In Indonesia, after the widespread gross violations of human rights in Timor-Timur before and after the referendum held by UNTAET in 1999, there are massive civil society efforts to pressure the Indonesian government. These crimes were committed by Indonesian military and police officers in Timor-Leste and were condemned by the international community, resulting in massive protests and demands for criminal trials within the legal framework and in accordance | 123 with international law standards.The international pressure was raised to the highest level within  has been issuing the arrest order to all suspects with accusation of committing crimes against humanity in Timor-Timur before and after referendum in August 1999. 57 However, the harsh reaction shown by the Indonesian government towards this decision is remarkable. For example, the then-Ministerof Foreign Affairs, Hasan Wirajuda, in Kuala Lumpur, paid his attention and responded that Dili District Court is not an international tribunal, and it has no jurisdiction or competence to arrest, and also, the then Chief of MPR/People Representative Assembly, Amien Rais, has argued that this decision does not respect Indonesia's sovereignty. The Existence of a Law on the Human Rights Court stresses the justification of sovereignty theory. It is related to gross violations of human rights as individual acts, and it cannot be considered automatically as state acts, which refers to individual criminal responsibility rather than state responsibility, to justify 54 Crouch, M. 2013

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the principle of no safe haven in relation to truth enlightenment with judicial or extrajudicial approach by national jurisdiction for any types of gross violations of human rights. 58 The sovereignty is became enormous discourse that faced especially in the context everyone that suspected as perpetrators in any gross violations of human rights. 59 The sovereignty issues is raises especially for everyone that suspected in this crimes became the state representation or symbol of state sovereignty that threatened by foreign powers. 60 However, the international community has obligation to arrest, detention, to prosecute, and to adjudicate the perpetrators of crimes against humanity. 61 The good example was shown by Slobodan Milosevic as the Head of State of Yugoslavia in 90's that facing 60 charges by the Public Prosecutor of the Former Yugoslavia Tribunal, and also one of the Generals during Milosevic reign was arrested while attending an international conference in an European country that taken by the international community to applying universal jurisdiction. 62 Other example, the international community also taking action by the UN bodies to adjudicate the perpetrators of gross violations of human rights within court framework, 63 in this context the Tribunal for Rwanda, or Tribunal for Cambodia with special characteristic that dealt by international community as a hybrid tribunal with function as judge and general prosecutor, 64 with aims to adjudicate ex-military and civil high ranking official during Red Rogue era (1975)(1976)(1977)(1978)(1979). 65 Indonesia's Human Rights Court is designed differently than other judiciary model that established by international community. 66 However, the existence of Indonesia's Human Rights Court has weaknesses points. First, the Law on Human Rights Court has partially adopted provisions that are arranged in the Rome Statute. The Law on Human Rights Court just recognized crimes against humanity and genocide. The legislature does not regulate the inclusion of war crimes and aggression as competences of Indonesia's Human Rights Court. Second, based on the application of this law, one partially failed legal framework that was upheld based Discover Crimes against Humanity… on this law is the ad-hoc Human Rights Court of Timor-Timur. However, this ad-hoc Court acquitted the perpetrators or sentenced them to less than 10 (ten) years in prison, as regulated in the Law on Human Rights Court. The judgment that was decided by the Panel of Judges also did not order the prosecutors to execute the convicts immediately after serving their sentences. 67 All of these were flaws in Indonesia's unwillingness and inability to establish a strong and fair judicial framework to adjudicate perpetrators of crimes against humanity, particularly in Timor-Leste. 68 Recently, the effort as strong legal framework of gross violations of human rights regulates that everyone who publicly expresses feelings of hostility, hatred, or contempt towards one or several groups of the Indonesian population based on race, nationality, ethnicity, skin color, religion, sex, mental disability, or physical disability shall be punished, including for everyone that publicly broadcast, or display with information technology to the public related this issues also shall be punished. Paragraph 4 concerning Crimes based on Discrimination in Article 244-245 RKUHP 2019 stipulates that everyone who makes distinctions, exclusions, or restrictions based on race and ethnicity, which result in revocation or reduction of recognition, acquisition, or exercise of human rights equally in all spheres shall be punished, and for everyone who deprives another life, tortures, rapes, or deprives liberties based on racial and ethnic discrimination shall also be punished.

Second, the Chapter XXXIV concerning Special Crimes in Part One is regulates Gross
Crimes against human rights in Article 598 RKUHP 2019, it is regulates that genocide shall be punished to everyone that conducting crimes with aims destroying or eliminate partly or fully of nations, race, ethnic, or religious groups with (a) murder; (b) cause heavy physical or mental suffering; (c) create conditions of group life that accurately resulting physical destruction, in whole or partly; (d) force any acts with aims to prevent the birth of certain groups; or (e) forced displacing children from one to another groups. The Article 599 RKUHP 2019 stipulates that crimes against humanity shall be punished by everyone that conducts an act widely or systemically known to affect civilians, including (a) killing, extermination, expulsion, or forced displacement, deprivation of liberty or other deprivation of physical liberty that violates basic principles of international law, 67 | 127 or crime of apartheid; (b) slavery, torture, or other inhuman acts that have a similar nature with the aim of causing serious suffering or serious injury or physical and mental health; (c) persecution of groups based on any discriminatory reasons that are universally recognized as a prohibition of international law; or (d) rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilization, sexual violence, or enforced displacement of persons. are auxiliary institutions as special legal enforcers with special competences; (f) it is also supported within the international convention framework; (g) it also belongs to hostis humanis generis; (h) it still develops dynamically, unstable, and follows the law; and (i) it is also related to corporation liability in criminal law. 71

CONCLUSION
Gross violations of human rights as serious crimes and extraordinary crimes are recognized by the international community. These international crimes cannot be defined as domestic affairs. In this context, it is also the international community's obligation to prosecute these crimes, including to punish the perpetrators of crimes against humanity based on humankind's values and dignified human rights, and eliminate all kinds of worst crimes that hurt the common senses of the international community. In Indonesia, the efforts to establish a strong and continuous national mechanism to settle gross violations of human rights became a new process that still needed improvement in all aspects, with the final result being a workable mechanism to create dignified justice based on international standards. This effort is an 70  imperative arrangement that stipulates in the Indonesia Constitution to protect and further human rights as a state responsibility according to their obligations as part of the international civilized community. The problem that is faced by the Indonesian government, especially after the Timor-Timur ad hoc Human Rights Court, shows several weaknesses in the Law on Human Rights Court, both in material aspects and procedural aspects. The recommendation that is proposed in this article is that the amendment shall be adopting and implementing international legal instruments related to serious crimes and creating further reform in the Law on Human Rights Court, which regulates widely arrangements related to gross violations of human rights.
Furthermore, other serious crimes shall be arranged, including war crimes and aggression crimes, in future bills of amendment to the Law on Human Rights Court and the Bill of Indonesia Criminal Codes.

ACKNOWLEDGEMENT
The author delivers acknowledgement to all of the parties that improved this article until it qualified as a journal article. First, the author also delivers gratitude to the Department of Criminal Law, Udayana University, for encouraging and strengthening legal materials needed for this article. Second, the author would like to express gratitude to all the anonymous reviewers and proofreaders that improved the quality of this article until it could be processed and published in its most recent version.