War in Aceh still subject to international law

War in Aceh still subject to international law

Lina A. Alexandra, Centre For International Relations Studies,
University of Indonesia, Jakarta

It has been more than two months since the start of the
military operation in Aceh. In spite of TNI's claim that they
have succeeded in paralyzing GAM military strength, the numbers
of civilian casualties are still increasing. TNI, in terms of its
duty to identify and catch GAM members, has reportedly conducted
violent raids, torture, in a few cases even rape, shooting and
extortion of the Acehnese people.

On the other hand, GAM, in an attempt to resist the Indonesian
government, has burned schools, committed blackmail, bombed
public facilities, launched indiscriminate attacks on buses and
trucks, and have put the Acehnese civilians in danger.

In view of such an appalling condition in Aceh, we should ask
the question whether or not the international law of internal
armed conflict can actually be applied in Aceh to reduce the
level of violence against civilians there? Which parties should
be seen as subjects in the law? In what way can they be seen as
the subjects? This article tries to show that with or without
consent both the TNI and GAM are automatically subjects to the
international law.

The first law of internal armed conflict to be contained in an
international instrument is the Common Article 3. Article 3
actually includes all the principles in the Geneva Convention on
inter-state conflict.

In case of internal armed conflict, Common Article 3 (Lindsay
Moir, The Law of Internal Armed Conflict, 2002), stresses that
each party to the conflict shall be bound to apply, as a minimum,
the following provisions:

First, persons taking no active part in the hostilities,
including members of the armed forces who have laid down their
arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on
race, color, religion or faith, sex, birth or wealth, or any
other similar criteria.

To this end, the following acts are and shall remain
prohibited at any time and in any place whatsoever with respect
to the above-mentioned persons: violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and
torture; taking of hostages; outrages upon personal dignity, in
particular, humiliating and degrading treatment; and the passing
of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court affording
all the judicial guarantees which are recognized as indispensable
by civilized peoples.

Second, the wounded and sick shall be collected and cared for.
It is clear that both TNI and GAM have violated the provisions
mentioned. The guerrilla strategy exercised by the GAM forces,
using Acehnese civilians as a bumper and launching indiscriminate
attacks and TNI's actions when trying to identify the GAM members
among the civilians undermine these provisions.

Let us examine this from the very beginning. What kind of
"armed conflict not of an international character" is meant in
the Article? Could we include Aceh's case? There are several
factual criteria involved.

First is that the party in revolt against the de jure
government possesses an organized military force and an authority
responsible for its acts. The party considered is also acting
within a determinate territory and has the means to respect and
ensure the provisions in the convention.

Second, the legal government is obliged to have recourse to
the regular military forces against the insurgents organized as
military and in possession of a part of the national territory.

Third, there is recognition, tacit or express, that the
insurgent is belligerent.

Fourth, the insurgent has an organization purporting to have
the characteristics of a state, exercises de facto authority over
persons within a determinate territory and agrees to be bound by
the provisions of the convention. Also, that the armed forces act
under the direction of the organized civil authority and are
prepared to observe the ordinary laws of war.

The current situation in Aceh meets all the criteria. GAM has
an organized military force and a political structure like a
state. GAM also exercises control in a determinate territory.
Then, the Indonesian government has to turn to its armed forces
to deal with this insurgent. So it can be concluded that the
military operation in Aceh meets the criteria of an internal
armed conflict.

Where the problem lies is who should be subject to the
provisions and how to ensure that. All states are the subjects of
international law, which governs the international system of
nation states. Thus, states are subjects of international law and
are bound by it accordingly. The TNI is the legal military body
of the Indonesian state, whose duty it is to protect the nation
on behalf of the state. Consequently, the TNI is also subject to
Article 3 as part of the law of internal armed conflict at the
international level.

But what about GAM? Article 53 of the Vienna Convention on Law
of Treaties states that a peremptory norm is "a norm accepted and
recognized by the international community of states as a whole as
a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law
having the same character."

Article 3 represents the most fundamental tenet of
humanitarian law. Since most norms of international humanitarian
law are also peremptory norms of international law, Article 3
provisions do indeed represent jus cogens. In other words,
Article 3 can be regarded also as a peremptory norm. This
peremptory norm, as part of international law, also binds
individuals, other than states, including the insurgent.
Consequently, with or without consent, GAM is also subject to
Article 3.

TNI and GAM are in fact subject to the law and must abide by
the internal armed conflict law. Every time members of the
international community violate international law, humanity takes
a step backwards. We continue to regress until we realize that we
are back in the barbaric era again.

The writer is researcher at the Centre for Strategic and
International Studies (CSIS) in Jakarta