Practice Relating to Rule 101. The Principle of Legality
In the Abilio Soares case before the Ad Hoc Human Rights Tribunal for East Timor in 2002, a former governor of Timor-Leste was charged with crimes against humanity. The charges were based on the law establishing the Tribunal, which entered into force in 2000, subsequent to the events for which the accused was on trial. An objection based on the principle of non-retroactivity lodged by the defence was rejected by the Court, which stated:
Concerning the application of the retroactive principle:
In considering, that the prohibition of retroactive law (ex post facto) is a basic right that is a non derogable right, as stipulated in Article 28 (i) 2nd Amendment 1945 Constitution and Article 4 Law No. 39 year 1999 concerning Human Rights, is universal and is derived from Article 11 of the Universal Declaration of Human Rights. In [hearings] that discussed the draft of this Article 11, which reads:
It states that the prohibition shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to general principles of law recognized by the community of nations.
The above provision was later expressed in Article 15 verse (2) of the International Covenant on Civil and Political Rights/ICCPR. The same is also found in Article 7 verse (2) of the European Convention on Human Rights/EHCR. The inclusion of the provision in the two instruments above was intended to remove any doubt as to the legality of the rulings of the Nuremberg and Tokyo Tribunals, which some consider as the application of law ex post facto.
In considering that in later developments the practice in the International Criminal Tribunal for the Former Yugoslavia/ICTY and the International Tribunal for Rwanda/ICTR indicates that the two applied legal provisions formed after the act is committed, and in a certain place. ICTY, which was established through UN Security Council Resolution No. 827 on May 25, 1993, through its Statute has the power to try crimes committed since 1991.
Article 1 of the ICTY Statute, the International Criminal Tribunal for the Former Yugoslavia: “shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute”.
Similarly in Rwanda, the ICTR Statute states that the Tribunal can prosecute acts of genocide and violation of humanitarian laws taking place in Rwanda from January 1, 1994 to December 31, 1994, as provided in UN Security Council Resolution No. 955 dated November 8. 1994.
The International Tribunal for Rwanda “shall have the power to prosecute persons for having committed serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the protection of victims of war and to Additional Protocol II hereto of 8 June 1977 …” Article 4 of the Statute of Rwanda Tribunal.
In considering, that in Machteld Boot’s thesis headed “Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court; Genocide, Crimes Against Humanity, War Crimes”, dated 15 February 2002, on page 39, states:
that the drafters of the Rome Statute were also still inspired by international conventions, international custom as evidence of general practice accepted as law, and general principles of law recognized by civilized nations;
Therefore it may be concluded that the legality principle is not absolutely valid and there may be exceptions to this principle by stating that the retroactive principle applies in certain cases.
In considering, that an Ad Hoc Tribunal was also conducted for criminals in the former Yugoslavia and Rwanda under special clauses, that determine jurisdiction over crimes in certain locus and tempus, namely;
In considering, that the Ad Hoc Human Rights Tribunal in Central Jakarta is also based on Article 43 of Law No. 26 Year 2000, that was later endorsed by the Indonesian House of Representatives through Keputusan DPR-RI Nomor 55/DPR-RI/III/2001 dated March 12 2001, Concerning Approval by the People’s Representative Council of the Republic of Indonesia of the Proposal to Form an Ad Hoc Human Rights Tribunal for Suspected Serious Human Rights Violations in East Timor and Serious Human Rights Violations in the 1984 Tanjung Priok Case, in conjunction with Presidential Instruction (Keppres) No. 96 Year 2001 concerning Amendments to Keppres. No. 53 year 2001 Concerning Formation of an Ad Hoc Human Rights Tribunal in Central Jakarta, that reads:
Article 2: The Ad Hoc Human Rights Tribunal as referred to in Article 1 is authorized to examine and rule on serious Human Rights violations occurring in East Timor in the legislated regions of Liquisa, Dili, and Suai in April 1999 and September 1999, and occurring in Tanjung Priok in September 1984;
Therefore the retroactive principle may also be valid to examine and try serious human rights violations cases in the prescribed periods, in particular as in the Penjelasan Undang-undang is clearly stated that: “in other words the retroactive principle may be applied to protect human rights itself under Article 28 jo verse (2) Undang-undang Dasar 1945”.
The defendant’s petition to the Constitutional Court on the same issue in 2005 was also unsuccessful. The Court stated:
Considering whereas the principal issue of the a quo petition concerns the application of Article 43 Paragraph (1) of the Human Rights Court Law which regulates the Ad Hoc Human Rights Court having the authority to examine gross human rights violations occurring prior to the enactment of the a quo law, on the basis of which the Petitioner has been tried and sentenced, thus the Petitioner claims that that his constitutional rights have been impaired since he has been tried and sentenced based on legal provisions which apply retroactively. According to the Petitioner, this is contradictory to Article 28I Paragraph (1) of the 1945 Constitution which states, “The right to life, the right not to be tortured, the right of freedom of thought and conscience, the right to have a religion, the right not to be enslaved, the right to be recognized as a person before the law, and the right not to be prosecuted under retroactive laws shall constitute human rights which cannot be reduced under any circumstances whatsoever”. Therefore, Article 43 Paragraph (1) of the a quo law is petitioned to the Court to be declared as having no binding legal force;
Considering whereas Article 43 Paragraph (1) of the Human Rights Court Law states, “gross human rights violation which occurred prior to the enactment of this law, shall be examined and decided by an ad hoc Human Rights Court”, unarguably has a legal provision that applies retroactively. However the legal problem that must be considered and decided by the court in the a quo petition is whether such provision is automatically contradictory to Article 28I Paragraph (1) of the 1945 Constitution …
Considering whereas the background of the establishment of the Human Rights Court is as described above and what has to be considered by the court now is: whether the establishment of the Ad Hoc Human Rights Court with retroactive legal provisions is contradictory to Article 28I of the 1945 Constitution, as petitioned by the a quo Petitioner. To answer this question, firstly it needs to be answered: whether the right not to be prosecuted by any law which applies retroactively is an absolute right, as textually formulated in Article 28I Paragraph (1) of the 1945 Constitution;
Considering whereas the provision of Article 28I Paragraph (1) of the 1945 Constitution states that the right not to be prosecuted under retroactive law shall constitute human rights which cannot be reduced under any circumstances whatsoever. Although such literal formulation creates an impression as if the right not to be prosecuted under a retroactive law is absolute, in accordance with the history of its formulation, Article 28I Paragraph (1) can not be interpreted as standing in its own, but rather, it must be read together with Article 28J Paragraph (2). As such, it will be clear that, systematically, human rights – including the right not to be prosecuted under a retroactive law – is not absolute, because in exercising his right and freedom, every person must respect the human rights of others and must submit to the limitation stipulated in laws with the sole purpose of guaranteeing the respect for and enforcement of the rights and freedom of others, as well as to “meet fair demand in accordance with the consideration of morality, religious values security and, public order in a democratic society” as provided for in Article 28 Paragraph (2). By reading Article 28 I Paragraph (1) together with Article 28 J Paragraph (2) it is noticeable that the right not to be prosecuted by retroactive laws is not absolute, and in order to “meet the fair demand in accordance with considerations of morality, religious values, security and order” and such right can be set aside.
Also considering that a retroactive application of a law does not immediately make the law contradictory to the Constitution and instantly loses its binding legal force. Such application also does not immediately constitute human rights violation, instead it must be assessed based on two factors or requirements that must be met in the retroactive application of laws;
Firstly, the magnitude of public interest that must be protected by the law;
Secondly, the weight and nature of the rights violated as a result of such application of law is smaller than the violated public interest;
Considering whereas the above-mentioned crimes are contradictory to the spirit to enforce and highly uphold humanity and justice, which are clearly stated in the preamble of the 1945 Constitution, and at the same time they are also contradictory to the general principles of law recognized by civilized nations. Therefore, the overriding of the principle of non-retroactivity on such crimes is not contradictory to the 1945 Constitution; as the constitution of a civilized nation, the spirit of the 1945 Constitution in fact mandated the enforcement of humanity and justice; hence the above described crimes against humanity must be eradicated. When the demand to uphold humanity and justice is hindered by the principle of non-retroactivity – which historically and initially had the background of the intent to protect individual human beings’ interest from arbitrary actions of absolute rulers – hence the overriding of the principle of non-retroactivity becomes an unavoidable action because the interests which are to be saved through such overriding are the interests of human beings as a whole whose value exceeds the interest of an individual human being;
Considering whereas the establishment of the ad hoc Human Rights Court, as a forum to adjudicate perpetrators of crimes categorized as “the most serious crimes of concern to the international community as a whole”, as regulated in Article 43 Paragraph (1) of the Human Rights Court Law, aside from being justifiable according to the 1945 Constitution, it is also justifiable by international legal practice and development, which among others is shown by the establishment of the ad hoc Criminal Tribunal in the former Yugoslavia, namely the International Criminal Tribunal for the former Yugoslavia (ICTY) and in Rwanda, namely the International Criminal Tribunal for Rwanda (ICTR). The ICTY was formed (in 1993) with the jurisdiction to adjudicate perpetrators of war crimes and crimes against humanity, whose tempus delicti was limited after January 1, 1991 and its locus delicti being the territory of former Yugoslavia. Meanwhile ICTR was formed (in 1994) with the jurisdiction to adjudicate perpetrators of genocide crime and other serious crimes against international humanitarian law, whose tempus delicti was as from January 1 to December 31, 1994, whereas its locus delicti being Rwanda and its neighbouring states. The two ad hoc courts, ICTY and ICTR, were both set up based on the Resolution of the United Nations Security Council, even though formed after the occurrence of the event, substantially with the jurisdiction actually being on violations which are considered as crimes under international law (vide Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court, Nomos Verlagsgesellschaft, Baden-Baden, 1999, page 324). Such is also the case with the ad hoc Human Rights Court formed based on Article 43 Paragraph (1) of the Human Rights Court Law, even though formed after the occurrence of the incident or violation, the types of violations which are under its jurisdictions (ratione materiae) are actually violations which were crimes prior to the establishment of the ad hoc Human Rights Court, namely genocide and crimes against humanity in this case;
Considering further that the Human Rights Court Law only includes two types of crimes with respect to which the principle of non-retroactivity can be overridden, namely genocide and crimes against humanity. The a quo law does not include war crimes and aggression crimes, although according to international customary law these two types of crimes are also categorized as the most serious crimes of concern to the international community as a whole. This can be understood because at that time, there was no legal need to regulate the two types of crimes in the a
quo law, particularly Article 43 Paragraph (1), because it was not relevant to the context of the intent and purpose of the establishment of the ad hoc Human Rights Court;
Considering whereas based on the above description, some of the arguments of the Petitioner which are used as the basis for the refusal of the overriding of the principle of non-retroactivity are justifiable as long as they concern ordinary crimes or extraordinary crimes which can be sufficiently tried through a regular court forum without overriding the non-retroactivity principle. However, the arguments can not be used to develop axiomatic legal construction leading to a conclusion that the right not to be prosecuted based on a retroactive law is an absolute human right. Because, if such thought construction is used, actions categorized as extraordinary crimes which are universally considered as the most serious crimes of concern to the international community as a whole, including crimes regulated in the a quo law, are very likely to escape legal prosecution if the law does not firmly regulate such actions as crimes. If that happens, violations have occurred on a fundamental principle universally accepted as a legal principle namely “there shall be no crimes allowed to pass without punishment” (aut punire aut dedere
). Axiomatic legal construction which makes the principle of non-retroactivity absolute, rationally, must also be interpreted as a rejection of the transitional justice mechanism which is the resolution mechanism for violations of law occurring in the past, especially gross human rights violations. Because, the transitional justice mechanism, regardless of the extent, is certain to contain the element of the overriding of the principle of non-retroactivity.
In their dissenting opinions, three of the nine justices of the Court would have upheld the principle of non-retroactivity and granted the petition.