DISERTASI, PERTANGGUNGJAWABAN KOMANDO (COMMAND RESPONSIBILITY) DALAM PELANGGARAN HAM BERAT (STUDI KASUS KEJAHATAN TERHADAP KEMANUSIAAN DI INDONESIA)

The legal attempt enforcing law against the gross violation of human right based on the commander responsibility principle, is not only a domestic concern of a nation but it already became an international concern, in order to cut loose the chain impunity practice. The relevant problems to be further concern in this dissertation are : 1) The Indonesian Government urgency in enacted the Law number 26 year 2000 of The Human Rights Court, as the basic legal prosecution for any penal responsibility by commander orany superior officer for violating the human rights which become the gross violation of human rights; 2) the applied of the commander responsibility principle toward the human rights court in Indonesia and in international court.

This is a doctrinal research that use a legal normative approached. The data collection technique in this research is using secondary data (book and documentary study) toward primary legal data and secondary legal data which relevant to the dissertation substance. After those data has been identified and classified, they were being analyzed using qualitative method.

The first research result for the first problem is that the Indonesia Government has a power to enacted a law thus to enforce it by prosecute and put into trial anybody who violated the human rights, and this power goes with its sovereignty. One of the urgency to enacted the Law number 26 year 2000 of The Human Right Court as the ground to prosecuted military commander, chief police officer and any civilian leader with criminal responsibility in gross violation of human rights being done by their team member/dependant who were under the effective chain of command by the Indonesian Government is to anticipate the formation of International Criminal Tribunal For the Rwanda (1993) and International Criminal Tribunal for Yugoslavia (1994) by the United Nation Security Council and also to fulfill the legal loophole in human rights regulation in Indonesia.

The second research result for the first problem is a knowledge that all of those defendants who were charged for gross violation of human rights by commander responsibility principle, were awarded with a free sentence and those sentences were all binding by law. The argument for that sentences was because the defendants were not in superior position for those actors who done the gross violation of human rights, defendants did not have any hierarchy line ofcommand and did not have any effective control for those who committed gross violation of human rights.

The main elements in commander responsibility theory that applied in gross violation of human rights court were based on the decision of International Military Tribunal Nuremberg in Germany and International Military Tribunal Tokyo in Japan, the International Criminal Tribunal for Rwanda and International Criminal Tribunal for the Former Yugoslavia, that the action must showed similarity with elements such as : the subordination relationship between commander and his member or superior inferior relationship; there is an acknowledge by commander or superior for his members were, subject to, or already did an actual or constructive violation of human rights; the commander or the superior with all of his power were failed to hindered, stopped or punished and transferred the violators to the authorities.

Keywords : Commander Responsibility, Gross Violation of Human Rights, Human Rights Courts

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