Is Terrorism = Crimes Against Humanity?

PERTANYAAN

The classification of gross violations of human rights if compared with the Anti-Terrorism Law almost has the same definition. What is the difference? Is the Bali bombing case classified as a gross violation of human rights or terrorism? Thank you.

INTISARI JAWABAN

Correct. There are similarities between the characteristics of terrorism and gross violations of human rights, especially crimes against humanity. However, each still has its own characteristics.

The Bali bombing case as you mentioned cannot be categorized as crimes against humanity, but is clearly a crime of terrorism. Why?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Apakah Terorisme = Kejahatan Terhadap Kemanusiaan? written by Yasniar Rachmawati M, S.H., M.H. from PERSADA UB and was published on Thursday, 31 March 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

The Crime of Terrorism

The term terrorism was originally used to designate an enemy of a territorial or cultural dispute against an ideology or religion that commits acts of violence against the public. Meanwhile, terrorists are individuals who are personally involved in acts of terrorism.

At least from the definition of terrorism, there are four kinds of criteria, including target, goal, motivation, and legitimacy. In November 2004, the UN Panel defined terrorism as follows:

Any action intended to cause death or serious bodily harm to civilians, non-combatans when the purpose of such act by is nature or context, is to intimidate a population or compel a government or international organization to do or to abstain from doing any act.

The international provision that defines terrorism is Article 1 section (2) of the League of Nations by the adoption of a Convention for the Prevention and Punishment of Terrorism which states that:[1]

… acts of terrorism [as] criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or groups of persons or the general public.

Many opinions have tried to define terrorism, one of which is the definition stated in Article 14 section (1) of the Prevention of Terrorism (Temporary Provisions) act, 1984 as follows:[2]

Terrorism means the use of violence for political ends and includes any use of violence for the purpose putting the public or any section of the public in fear.

Terrorism activities aim to make others feel fear so as to attract the attention of people, groups, or a nation. Usually, terrorism is used when there is no other way to carry out its will. Terrorism is used as a psychological weapon to create an atmosphere of panic, and uncertainty and create public distrust of the government's ability and force certain people or groups to obey the will of the terrorist.[3]

Article 1 section (2) Law 5/2018 states that:

Terrorism is an act that uses violence or threats of violence that create an atmosphere of terror or fear on a widespread basis, which can cause mass casualties, and/or damage or destruction to strategic vital objects, the environment, public facilities, or international facilities with ideological, political, or security disturbance motives.

From the definitions above, it can be concluded that the characteristics of terrorism are as follows:[4]

1. is coercive intimidation;
2. uses systematic killing and destruction as a means to a certain end;
3. victims are not the goal, but a means to create a war of nerves, i.e. kill one person to scare a thousand people;
4. the targets of terrorist acts are chosen, working in secret, but the goal is publicity;
5. the message of the act is quite clear, although the perpetrators do not always declare themselves personally;
6. the perpetrators are mostly motivated by a fairly strict idealism.

Terrorism has specific characteristics that are not present in conventional crimes, namely that it is carried out systematically and widely and is organized in an orderly manner. Terrorism using weapons of massive destruction makes terrorism a transnational issue with implications for human security at large.

In addition, the most important thing about this crime is the strong ideology that underlies terrorists or terrorist groups to carry out their actions with the aim of frightening groups of people and governments and so that the government can follow the ideology that the group believes in.

Terrorism = Crimes Against Humanity?

Based on the characteristics of terrorism, in response to your question, it is true that there are similar characteristics with gross violations of human rights, especially crimes against humanity, which are regulated under international law and the Human Rights Court Law.

In the definition of crimes against humanity in the 1998 Rome Statute, there are several important characteristics, namely the existence of an attack, the existence of a widespread or systematic attack, the existence of acts that are part of a widespread and systematic attack, and what is meant by with knowledge of the attack.

The words attack are not always associated with armed conflict. Article 7 section (2) letter a 1998 Rome Statute states:

… the multiple commission of acts referred to in paragraph 1 … pursuant to or in furtherance of a State or organizational policy to commit such attack.

To ease your understanding, we will explain the characteristics of crimes against humanity one by one:

1. The attacks are repeated, related to the follow-up of an organizational or state policy.
2. Widespread and systematic, with widespread referring to the number of victims, while systematic refers to the plan to carry out the attack.
3. The relationship between the act of crimes against humanity and the widespread or systematic nature of the attack. This condition will be met once a person or group of persons commits one or more of the crimes against humanity under the direction of an organizational or state policy.
4. With knowledge of the attack requires that in order to be considered a crime against humanity, the perpetrator must know that there is a widespread and systematic attack in his or her environment.

Meanwhile, the definition of crimes against humanity is one of the acts committed as part of a widespread or systematic attack, knowing that the attack is directed against a civilian population, in the form of:[5]

1. murder;
2. extermination;
3. enslavement;
4. expulsion or forcible transfer of population;
5. deprivation of liberty or other arbitrary deprivation of physical liberty in violation of the fundamental provisions of international law;
6. torture;
7. rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisation or sterilization or other equivalent forms of sexual violence;
8. persecution of any group or association on grounds of political opinion, race, nationality, ethnicity, culture, religion, sex, or any other grounds universally recognized as prohibited under international law;
1. enforced disappearance of persons; or
10. the crime of apartheid.

When compared to the characteristics of crimes of terrorism, there are several characteristics that can be categorized as crimes against humanity as one of the forms of gross violations of human rights, namely the existence of attacks on human beings that result in human beings being injured or even killed.

However, there is a fundamental difference in the characteristics of terrorism crimes, which aim to create fear in a region or country by using threats of violence or violence against the population that results in injuries and deaths.

In addition, the victims of terrorism are not the goal of terrorism crimes, but a way to scare the state or government. It is also important to note that terrorism is based on ideology or a different perspective/view from the government, which later aims to change the ideology of the government or state into the same perspective as the terrorist group.

To continue the question related to the Bali bombing case in 2002 and 2005, this case is clearly included in the category of terrorism crime because it has fulfilled the elements of terrorism crime, namely intimidation that is realized by violence and murder that is used as a means for certain purposes and in the action is based on a fairly strong idealism.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Rome Statute of The International Criminal Court;
2. Law Number 26 of 2000 on Human Rights Court;
3. Law Number 15 of 2003 on Stipulation of Government Regulation in Lieu of Law Number 1 of 2002 on Eradication of the Criminal Acts of Terrorism, into Law as amended by Law Number 5 of 2018 on the Amendment to Law Number 15 of 2003 on Stipulation of Government Regulation in Lieu of Law Number 1 of 2002 on Eradication of the Criminal Acts of Terrorism, into Law.

Reference:

1. Ilias Bantekas and Susan Nash. International Criminal Law. Australia: Cavendish Publishing, 2003;
2. Koalisi untuk Keselamatan Masyarakat Sipil. Terorisme, Definisi, dan Regulasi. Jakarta: Imparsial, 2003;
3. Loebby Loqman. Analisis Hukum dan Perundang-Undangan Kejahatan terhadap Keamanan Negara di Indonesia. Jakarta: Universitas Indonesia, 1990.

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[1] Ilias Bantekas and Susan Nash. International Criminal Law. Australia: Cavendish Publishing, 2003, p. 217.

[2] Loebby Loqman. Analisis Hukum dan Perundang-Undangan Kejahatan terhadap Keamanan Negara di Indonesia. Jakarta: Universitas Indonesia, 1990, p. 98.

[3] Loebby Loqman. Analisis Hukum dan Perundang-Undangan Kejahatan terhadap Keamanan Negara di Indonesia. Jakarta: Universitas Indonesia, 1990, p. 19.

[4] Koalisi untuk Keselamatan Masyarakat Sipil. Terorisme, Definisi, dan Regulasi. Jakarta: Imparsial, 2003, p. 5.

[5] Article 9 Law Number 26 of 2000 on Human Rights Court.