“Should there be no response from the Constitutional Court, as a last resort, we will then submit this case to the International Court as a crime against humanity”.

This is more of a bluff than a smart statement. First off, what international court? Second, what is a crime against humanity? and can electoral dispute be classified as a crime against humanity.

Competence of International Court of Justice

The term international court (“Mahkamah Konstitusi“) refers to the International Court of Justice (“ICJ”). The ICJ is the judicial body of the United Nations that may try disputes between States. On this matter, the Statute of the Court itself is very clear in stating that only States may be parties in cases before the ICJ. There is, of course, an exception, in which the ICJ may also provide its advisory opinion on a question of international law, as submitted by the UN organs or specialized agencies.

But still, Mega – Pro is neither a State nor a UN Organ for sure. Any claims submitted by it will not be admissible in the first place, let alone reaching the merits of the case.

Competence of International Criminal Court and other ad hoc International tribunals
The establishment of the International Criminal Court (“ICC”) was preceded by the establishment of some other ad hoc tribunals that were dedicated to try the perpetrators of grave international crimes.

The idea was first introduced by the Nuremberg Tribunal, that was created to try the NAZI leaders after its defeat in the World War II. This tribunal introduced the possibility of retroactive application of law, considering the gravity of the crimes.

Following the Nuremberg Tribunal, some similar tribunals, were also established. Among other, there are the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”).

As ad hoc tribunals, they were established to try only on specific cases, as assign to it in its establishment. For example, the ICTY has the competence to try on cases related to the conflict in the Former Yugoslavia, while the ICTR has the competence on cases related to the international crimes in Rwanda. Thus, there is definitely no possibility to submit a case to these tribunals.

Then, what about the ICC, ICC is not an ad hoc tribunal? As much as the ICC is not an ad hoc tribunal, the ICC was also established by a treaty, in which Indonesia is not a party. Even if Indonesia is a party to the ICC Statute, I doubt that the ICC could try such a case.

Why?

First, who is the person(s) accused of the so called crime against humanity? Would it be the KPU? or the Indonesian Constitutional Court? or the Chair of KPU? or the winning candidate (SBY)? It must be noted that the one of the purpose of establishing the ICC is to enforce justice, where nobody can shield him/herself behind the official capacity. In other words, the criminal court is designed to try a person, who is individually responsible for the crime.

Then again, who will be accused of this crime?

Second, Speaking about the crime, Mega-Pro accused that there exists fraud and manipulation in the election process that amounts to crimes against humanity.

Now, let’s take a look at the elements of crimes against humanity:
1. widespread or systematic attack
2. against civilian population
3. with knowledge
4. attacks such as: murder, extermination, enslavement, deportation, imprisonment or deprivation of fundamental international law, torture and CIDT, rape, sterilization, enforced pregnancy, prostitution, persecution based on religion, ethnic, apartheid.

Question is, have the elements been exhausted? What kind of attack? to which population?

ICJ, ICC are not Court of Appeals

Arteria also stated that: the submission of claim to the International Court will be taken as a last resort, if the Constitutional Court does not give any positive response. Nonetheless, neither the ICC nor the ICJ acts as a court of appeal. ICJ and ICC have their own competencies and jurisdiction which covers matters involving international law and not domestic law of a country.

Final Remarks

I don’t think that any international court could try such a case on electoral dispute. Election was carried out based on the domestic law of a State. Any dispute arising thereof would be a domestic dispute. On the other hand, international court are settled for international disputes involving international law. These two subjects are different in its nature and fundamental characters.