Castrating Paedophilia -Not Against Their Rights

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     Indonesia has lately faced serious problems concerning the protection of children. International communities have been astonished by the many cases of children being sexually abused and raped by people with sexual disorders, known as paedophilia. The cases which have happened have been spreading in the small and remote villages in Indonesia. What must we do to save children from sexual violation? Examining the cases, the conclusion can be drawn that there is the same pattern that most of the perpetrators either used to be victims of sexual abuse when they were a child and they did not receive psychotherapy and are classified as untreated victims. Or they are clasified as social and emotional maladjusted persons. The perpetrators are closely known by the victims either their close family or their neighbour. The ages of the victims are vary from 5 to 16 years old. It is recorded that the number of the cases and victims are increasing, with 2.386 cases recorded in 2011; 2.637 cases a year later; and in 2013 there were 3.023 recorded cases. For the first four months of 2014, there have been 200 recorded cases excluding Emon’s victims in Sukabumi and the victims at JIS. It is documented by the Commission on Indonesian Children Protection (KPAI). Those numbers should alarm us that children are facing a dangerous situation. The purpose of this article is to demand that our children are better protected by the inclusion of a more comprehensive law that protects children and has harsher laws for the perpetrators of sexual crime against children. Although, Indonesia has the Law on Children Protection,  cases are rising. Since the law does not cover a comprehensive system for child protection and does not give additional punishment for serial paedophilia. The law should be amended to contain additional punishment and special protection programs for children. Further to this point, the law does not include clearly special treatment and protection for children who are the victims of sexual abuse. Although, article 59 of the law regulates special protection for children, the article does not provide a clear process what the government and community should do in cases of sexual abuse. In practice, the government and KPAI do not have programs for prevention. Since they do not know how to prevent, they act in response after they are informed by the media or the victim’s families. Advocation on children’s rights and the monitoring of criminal investigation of suspects are their only programs.

The Universality and Relativism of Human Rights

The principle of the inherent dignity of human beings, equal and inalienable rights which are declared within the preamble of the Universal Declaration of Human Rights have a universal nature of the rights; it is originally adopted from the common values as human beings. As Antonio Cassese writes, there are two characteristics of the UDHR which are the universality of human rights and the consent of its member states. Derivation of those rights has been codified in many human rights treaties and all state parties to those treaties acknowledge a duty to respect the universality of human rights of their citizens in all conditions without exception. However, the universality of human rights has been challenged by the relativism of human rights. Can the relativism override the universality of human rights?

Final International Criminal Law Assignment

I.          Introduction

The global criminal procedure systems are classified into two systems; the adversarial system is called common law and the inquisitorial system is called civil law system. The parties at the trial are the prosecutor, defense, and victim and the parties are adducing their evidence in order to seek the truth.[1] The International Criminal Court as a global criminal court is likely to choose the inquisitorial model. It is challenging for the International Criminal Court to combine the two procedure systems; therefore, victims’ participation in the proceedings of the International Criminal Court (hereinafter referred to as ‘ICC’) gives a positive effect on the rights of the accuse under international human right law. Victims participating in the ICC proceedings are not only balancing evidences and bringing local knowledge to the international views but also ensuring that the rights of victims to receive justice through participation in a fair and public hearing by a competent, independent and impartial tribunal.

International tribunals, for instance, the Special Court for Sierra Leone and ICC, have started to endow enforceable rights and standing to victims.[2] This guarantee of the ICC for victim rights is clearly stated in the second preamble paragraph of the ICC Statute.[3] The victim rights are granted by the ICC, for instance, submitting victims’ views and concerns to the Court.[4] Moreover, victims’ participation has two possibilities; they are able to represent them self or observe the proceedings.[5] Victims are allowed to participate as long as ‘the manner of the victim is not prejudicial to or inconsistent with the rights of the accused in line with a fair and impartial trial’.[6]    

By definition, “victim” can be natural persons or organizations. As a natural person, a victim should have suffered harm as a result of the commission of any crime within the jurisdiction of the ICC while an organization could be considered as a victim if it has sustained direct harm to any of its properties. [7] In determining victim status at the ICC, whether a victim has a legal standing or not, the ICC has to use four criteria[8]; first, ‘… the identity of the applicant as a natural person …; second, ’… a crime within the jurisdiction of the Court’; third, ‘whether the applicant claims to have suffered harm’; and fourth, ‘… harm appears … “as a result” of … a crime within the jurisdiction of the Court.[9] The definition of victims does not mean that the ICC will minimize their participation. It is clear through the appeal decision of the Lubanga case that ICC allows victims to participate at ‘any identified stage of the proceedings’ and they ‘should set out in a discrete written application the nature and the detail of the proposed intervention’.[10]

Castrating Paedophilia -Not Against Their Rights

  Indonesia has lately faced serious problems concerning the protection of children. International communities have been astonished by the many cases of children being sexually abused and raped by people with sexual disorders, known as paedophilia. The cases which have happened have been spreading in the small and remote villages in Indonesia. What must we do to save children from sexual violation? Examining the cases, the conclusion can be drawn that there is the same pattern that most of the perpetrators either used to be victims of sexual abuse when they were a child and they did not receive psychotherapy and are classified as untreated victims. Or they are clasified as social and emotional maladjusted persons. The perpetrators are closely known by the victims either their close family or their neighbour. The ages of the victims are vary from 5 to 16 years old. It is recorded that the number of the cases and victims are increasing, with 2.386 cases recorded in 2011; 2.637 cases a year later; and in 2013 there were 3.023 recorded cases. For the first four months of 2014, there have been 200 recorded cases excluding Emon’s victims in Sukabumi and the victims at JIS. It is documented by the Commission on Indonesian Children Protection (KPAI). Those numbers should alarm us that children are facing a dangerous situation. The purpose of this article is to demand that our children are better protected by the inclusion of a more comprehensive law that protects children and has harsher laws for the perpetrators of sexual crime against children. Although, Indonesia has the Law on Children Protection,  cases are rising. Since the law does not cover a comprehensive system for child protection and does not give additional punishment for serial paedophilia. The law should be amended to contain additional punishment and special protection programs for children. Further to this point, the law does not include clearly special treatment and protection for children who are the victims of sexual abuse. Although, article 59 of the law regulates special protection for children, the article does not provide a clear process what the government and community should do in cases of sexual abuse. In practice, the government and KPAI do not have programs for prevention. Since they do not know how to prevent, they act in response after they are informed by the media or the victim’s families. Advocation on children’s rights and the monitoring of criminal investigation of suspects are their only programs.

Tragedi MH730 dan Solidaritas Asia-Pasifik

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Senin 5 April 2014

http://koran.tempo.co/kanal/2014/04/05/14/Opini

Vera Wheni S.S.


Dosen Universitas Tarumanagara

Tragedi hilangnya pesawat Malaysia Airlines MH730 membuat komunitas internasional berduka. Derita para korban dan keluarganya yang mendalam ternyata telah menyatukan dan menggerakkan solidaritas sekurangnya 27 negara, termasuk Amerika Serikat, Cina, Australia, dan Inggris, untuk membantu Malaysia. Berbagai aset yang mereka miliki, termasuk personel, peralatan canggih, dan biaya yang besar, telah didayagunakan untuk mencari keberadaan MH730 yang hilang sejak 8 Maret lalu. Namun sampai detik ini keberadaan pesawat nahas itu belum juga ditemukan.

Berdasarkan proses pencarian MH730 sejauh ini dapat disimpulkan bahwa negara-negara itu cenderung bekerja sendiri-sendiri dengan sumber daya yang mereka miliki. Pencarian itu terkesan tidak terkoordinasi dengan baik, menghambur-hamburkan sumber daya, serta tidak efisien dan tidak efektif. Dari proses ini dapat digambarkan perlunya pembentukan standar prosedur yang baku dalam pencarian pesawat udara yang hilang, terutama upaya pertolongan untuk para korban dan keluarga korban, termasuk kelanjutan pencarian serta evakuasi korban serta penemuan puing-puing sisa dan black box pesawat udara.

KEDAULATAN UDARA INDONESIA: ANCAMAN & UPAYA PERTAHANANNYA

Vera Wheni S Soemarwi, S.H., LL.M

Abstrak

Indonesia merupakan negara kepulauan yang kaya akan sumber daya alam yang terkandung di darat, laut maupun udara. Sebagai negara kepulauan, Indonesia memiliki ribuan pulau. Pulau-pulau tersebut belum terdata dan terorganisir dengan rapi di pemerintahan Republik Indonesia. Fakta ini disimpulkan dari data yang dilansir oleh sejumlah kementerian yang mencatat jumlah pulau di Indonesia berkisar antara 13.487 sampai dengan 18.306 pulau. Kesimpangsiuran data ini telah menimbulkan potensi konflik dengan negara tetangga. Potensi konflik itu muncul karena para negara tetangga menganggap Indonesia memiliki kelemahan dalam menjaga keutuhan kedaulatan darat, laut, udara dan kepulauan. Di beberapa titik perbatasan dengan negara tetangga, Indonesia memiliki potensi sengketa dengan negara tetangga seperti Malaysia, Singapura, Timor Leste dan Filipina. Untuk menghindari agar potensi konflik itu tidak menjadi konflik perbatasan maka penting bagi Indonesia untuk menentukan batas-batas wilayah darat, laut, udara dan kepulauan. Penentuan batas wilayah merupakan unsur terpenting bagi suatu negara dalam menentukan teritorinya (a difined territory)[1]. Memastikan perbatasan darat, laut dan kepulauan-kepulauan terdepan[2] penting bagi Republik Indonesia untuk menentukan wilayah kedaulatan udara Indonesia. Ketidakjelasan perbatasan akan berdampak pada hilangnya sebagian wilayah kedaulatan Indonesia. Tujuan penelitian ini dilakukan agar pemerintah Indonesia melakukan upaya untuk mempertahankan kedaulatannya dengan cara mendirikan pos-pos penjagaan dan kantor pemerintahan kepulauan serta pendudukan nyata terhadap pulau-pulau terdepan yang berjumlah 92 pulau ini. Dengan upaya ini Indonesia dapat memiliki ruang udara yang sangat luas karena penentuan wilayah teritorial laut 12 mil dari pulau terdepan. Keuntungan lainnya dalam penentuan Zona Ekonomi Ekslusif serta Batas Lintas Kontinen yang dihitung 200 mil dari kepulauan terdepan, Indonesia dapat memililki kekayaan alam yang dapat diekplorasi lebih luas lagi. Indonesia pernah mengalami kehilangan dua Pulau Sipadan dan Ligitan. Dari pengalaman kasus Pulau Sipadan dan Ligitan, artikel ini, akan mengulas pentingnya memelihara wilayah Republik Indonesia melalui inventarisasi dan kepastian hukum akan wilayah-wilayah perbatasan baik darat, laut, udara serta kepulauan Indonesia; klaim kedaulatan di kepulauan-kepulauan terdepan dalam rangka penentuan wilayah kedaulatan udara Negara Republik Indonesia. Methodologi dalam artikel ini menggunakan metode empiris dengan menggunakan studi kasus Sipadan dan Ligitan serta menganalisa potensi-potensi konflik perbatasan dengan negara tetangga yang terjadi di Indonesia setelah kasus Sipadan dan Ligitan. Artikel ini mengedepankan proses pembelajaran bersama (leasson learned) dalam kasus Sipadan dan Ligitan serta mencari cara untuk menjaga keutuhan wilayah darat, laut, dan udara Republik Indonesia.

Transnational Corporations’ Obligations towards Human Rights in New Era, Globalization

After ‘a common standard of achieving’ and ‘understanding’ the inalienable and inviolable rights of all people have been protected and promoted under Human Rights Conventions, many people have improved their living conditions. It proves that the Human Rights regime has succeed in achieving its objective. However, since interaction and interdependence among actors are growing and states’ economic powers are lessened, this power is substituted by Transnational Corporations as ‘supplementary and complementary’[1] responsibility then in some developing countries, which have a lot of natural resources, have big problem to fulfill their international human rights obligations. This condition has arisen because Human Rights regime does not included the obligations of private actors, such as Transnational Corporations and they, indirect or direct, participate in the creation of ‘the hegemony of the great economic, industrial and military powers and ever form of neo-colonialism.’[2]

International Criminal Law Assignment

I.          Introduction

Victims’ participation in the proceedings of the International Criminal Court (hereinafter referred to as ICC) gives a positive effect of the rights to accuse under international human right law. Victims participating in the ICC proceedings is not only balancing evidences that link to crimes but also ensuring the rights of victims to get justice and participate in fair and public hearing by a competent, independent and impartial tribunal established by law. The victim rights to participate and to get the access to public hearing by a tribunal have been forgotten; although, victims are innocent actors and has a fundamental feeling of great distress because of atrociously international crimes. In contrast to witness positions in the proceedings, a witness position has a direct representation and wider scopes than victims. While a witness can take part at every level at the proceeding, victim participation at proceedings is different from case to case and it depends on the Court’s views. Before ICC was established, victims were voiceless. In many international crimes, victims are the weaker party or passive participance within international crimes.

International tribunals, for instance, the Special Court for Sierra Leone and ICC, have started to endow enforceable rights and standing to victims.[1] This guarantee of the ICC for victim rights is clearly stated in the second preamble paragraph of the ICC Statute.[2] The victim rights are granted by the ICC through the procedures, for instance, submitting victims’ views and concerns to the Court.[3] Moreover, victims’ participations have two possibilities they may make representation and observation.[4] Victims are allowed to participate as long as ‘the manner of victims is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial’.[5]    

Victims’ Definition can be natural persons or organizations. As a natural person, a victim should have suffered harm as a result of the commission of any crime within the jurisdiction of the ICC[6] while an organization could be considered as a victim if it has sustained direct harm to any of their properties.[7] In determining victim status at the ICC, whether a victim has a legal standing or not, the ICC has to use four criteria[8]; first, ‘a victim must be a natural person; second, a victim ‘must have suffered harm’; third, ‘the crime from which the harm ensued must fall within the jurisdiction of the Court’; and fourth, there must be a causal link between the crime and the harm suffered.[9]

The Limit of Advisory Opinions

I.          Introduction

One of the functions of the International Court of Justice [ICJ] is to give an advisory opinion for authorized international organizations. It means the ICJ has an advisory jurisdiction. Although, the ICJ has jurisdiction, the existence of jurisdiction does not create its obligation to exercise it.[1] This means the ICJ has the power to decline or to accept a request. This power is called a discretionary authority. Through the case of Kosovo, it discusses whether the ICJ uses its discretionary authority. The other point is the ICJ’s assertion of advisory jurisdiction. Before giving an opinion, the ICJ will review the motives of the authorized organs or the interested states in their request for an advisory opinion. This motive has been discussed on the ICJ advisory opinion of the legality of the Use by a State of Nuclear Weapons in Armed Conflict.   

The ICJ Statute was installed, ‘annexed’, to and from an integral part of the United Nations Charter.[2] It is clear that Article 7 (1) of the United Nations Charter crystallizes the function of the ICJ as one of the principal organs of the United Nations. Although the ICJ was established as a principal judicial organ and within the legal and political frameworks of the UN, the ICJ is bound to give its decisions ‘in accordance with international law’ as is stated in Article 38 of the ICJ Statute that the ICJ ‘whose function is to decide in accordance with international law such disputes which are submitted to it’. This provision enables the ICJ to decide its case without considering the political aspects of cases even though there are political aspects within the cases, for instance, the ICJ Advisory Opinion of the ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’ and the ICJ Advisory Opinion on the ‘Legality of the Use by a State of Nuclear Weapons in Armed Conflict’ as well as on the ICJ Advisory Opinion on ‘the Western Sahara.’

The Sources of International Human Rights Law

--> Many religions believe that human beings are a high value of worth and dignity. They have certain fundamental rights that are attached to them since they are born. By virtue of this reason no one can detach the rights from human beings. From this believes that the human rights are universal.

Since the Universal Declaration of Human Rights in 1948 international law has come to the human rights regime where individual rights are being protected by the international community. The protection has acknowledged under several human rights treaties and they are part of the international law. The international community has agreed the classification of the sources of international law in Article 38 (1) of the ICJ Statute which is international conventions, international custom, the general principles of law, judicial decisions and the most highly qualified publicists.