The Concept Of Command Responsibility In Solving Serious Human Rights Violations (Comparative Study of International and National Legal Instruments)

Farras, Audia Raihany (2026) The Concept Of Command Responsibility In Solving Serious Human Rights Violations (Comparative Study of International and National Legal Instruments). S2 thesis, Universitas Andalas.

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Abstract

Serious human rights violations, particularly genocide and crimes against humanity, are extraordinary crimes regulated in Indonesia under Law Number 26 of 2000 concerning the Human Rights Court. Following the enactment of the new Criminal Code (KUHP 2023) through Law Number 1 of 2023, these offenses have been reformulated as Serious Criminal Acts Against Human Rights under Articles 598 and 599, reflecting Indonesia’s effort to internalize international criminal law norms while maintaining Law 26/2000 as a special procedural regime. A key mechanism in their enforcement is the principle of command responsibility, which allows military and civilian superiors to be held criminally liable for crimes committed by subordinates under their effective control. This principle is regulated in Article 42 of Law 26/2000, adopting Article 28 of the Rome Statute. However, its implementation in Indonesia continues to face serious normative and evidentiary obstacles, as demonstrated by the acquittals in the Tanjung Priok, East-Timor, Abepura, and Paniai cases. This study aims to analyze the regulation and application of command responsibility in international and national legal instruments and to formulate an ideal conceptualization of norms for resolving serious human rights violations. It addresses three research problems, which: (1) international regulation of command responsibility; (2) its regulation and implementation in Indonesia; and (3) the formulation of an improved conceptual model for accountability. Employing a normative-empirical method through statutory and comparative legal analysis, case studies, literature review, and interviews, this research examines both international and national practices. The findings reveal that although international criminal law has clarified the elements of effective control and knowledge, national implementation remains inconsistent due to fragmented regulation, evidentiary weaknesses, and institutional constraints. This study concludes that the primary challenge lies in ineffective enforcement rather than normative absence and recommends harmonizing Article 42 of Law 26/2000 with international developments, clarifying its relationship with KUHP 2023, and strengthening evidentiary and institutional capacity to ensure substantive justice for victims.

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