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