Name : Qurratu Aini

ID Student : 1803101010273
Subject : Humanitarian Law

Mini Research : “Does the humanitarian law apply? what about

Indonesia?”

A. Introduction
International humanitarian law has a history as old as human civilization.
Mochtar Kusumaatmadja said that "it is a sad fact that during the 3400 years of written
history, humanity has only known 250 years of peace". The self-defense instinct then
gave rise to the awareness that cruel warfare was detrimental to mankind, so that
society began to impose restrictions, stipulate provisions governing war between
nations. Furthermore, Mochtar Kusumaatmadja also said that it is not surprising that
the development of modern international law as a legal system that stands alone begins
with writings on the law of war..1

According to experience and world history, the nature of the relations between
the subjects of International Law does not only cover the scope of the state, but it
always changes with time and circumstances. This fluctuation in relations can be
sustained to this day through diplomacy.2

In principle, many people expect peace from war. State that claims to be civilized
are also committed to realizing world peace. This manifestation can be seen from the
conventions born and the adaptation of these conventions into national law by the state
that ratifies them. All countries in the world should be willing to join hands and be
committed to continuing to call for and realize world peace.

Confidence must be cultivated that one-day the peace will truly be realized in the
world. Of course, confidence is not enough to change the situation, but we must carry
out real efforts by state around the world. So far, there have been diplomatic efforts and

1
Wahyu Wagiman, SH, Hukum Humaniter dan Hak Asasi Manusia, 2007 availbale at
https://lama.elsam.or.id/downloads/1262841835_05._Hukum_Humaniter_dan_Hak_Asasi_Manusia.pdf
(Visited at February 23, 2021)
2
Hengky Ho, Penerapan Hukum Humaniter International Dalam Konflik Bersenjata antara Palestina dan Israel,
Vol. VII/No. 2/Feb/2019 available at file:///C:/Users/hp/Downloads/24668-50552-1-SM.pdf (visited at
February 23 2021)
meetings between states to create world peace. So far, there have been diplomatic
efforts and international conventions between states to create world peace. The
convention resulted in an agreement or international treaty which so far has not been
able to overcome the situation well. Up still today, war conflicts have continued and
destroys the fabric of society

The issue of conflict and war has become a hot topic in relations between
countries. In addition to the human victims as a result of the incident, both civilians and
military victims. The idea that has emerged so far is that in armed conflict, casualties
from the military are considered a consequence of the war that occurred. Meanwhile,
the existence of civilian casualties is seen as something that should not have happened.
Civilians who are unarmed and not involved in conflict should be free parties and their
safety is protected. However, ironically, this condition is often used for strategic and
political purposes by neglecting their rights and safety.

International humanitarian law was always close to human rights law, where
both two concepts cannot be separated each other. When discussing about
humanitarian law, we are also discussing concerning human rights in the context of
armed conflict condition. Although both International humanitarian law and
international human rights law has different basic sources, but that two concepts
basically stipulated the same thing, namely the protection to the people issue.3

Den Haag Convention of 1907 concerning Procevdure of War, Four Geneva’s

Conventions of 1949 concerning to the Protection of Armed Conflict Victims, and two
Additional Protocols of 1977: the Additional Protocol I of 1977 concerning to the
Protection of International Armed Conflict Victims, and the Additional Protocol
concerning to the Protection of Non-International Armed Conflict Victims, were
become sources of International Humanitarian Law. Those all sources, basically
stipulates concerning to the procedure of war, and humanitarian law guarantees
that although in the bad circumstances like war, the human rights should not to be
violated by any reasons. Meanwhile, sources of human rights law should be based
on the International Bill of Rights, such as Universal Declaration of Human Rights

3
Dr Tristan Ferraro , The applicability and application of international humanitarian law to multinational force,
2014, at 562, available at http://webcache.googleusercontent.com/search?
q=cache:T2K8Gw88LdUJ:www.rulac.org/assets/downloads/Feraro_Multinational_forces_IRRC.pdf+&cd=1&hl=
id&ct=clnk&gl=id (visited at Januari 23, 2021)
(UDHR) 1945, International Covenant on Civil and Political Rights (ICCPR) 1966,
and two optional protocols and International Covenant on Economic Social Cultural
Rights (ICESCR) 1966.
Then how is the application of world humanitarian law? And how is it applied in
Indonesia as a country that has ratified the 1949 Geneva Conventions?
B. Analyzes

Humanitarian Law or its full length is called International Humanitarian Law

Applicable in Armed Conflict, initially known as laws of war, which later became laws of
arms conflict, and eventually became known as humanitarian law. The term
humanitarian law itself in international law literature is a relatively new term.
Humanitarian Law was born around the 1970s with the holding of the Conference of
Government Experts on the Reaffirmation and Development in Armed Conflict in 1971. 4

International Humanitarian Law is a part of international law. Humanitarian law

does not only cover the provisions contained in international treaties but also includes
international customs that occur and are recognized. In general, the laws of war can be
divided into two, namely:

1. The law which regulates the method of war and the tools that can be used for
war;
2. Laws protecting combatants, civilians from the consequences of war.

The first part is generally regulated in Hague Conventions, therefore it is often

called the Hague Laws of War. The second part is regulated in the Geneva Conventions
and also called the Geneva Laws of War. The state of the law of war that protects war
victims is felt to be better because it concerns protection, both combatants and non-
combatants, so this section has a lot to do with humanitarian issues. Therefore the
Geneva Laws of War are now often called Humanitarian Law (in armed conflict). 5

In a state of war or a general emergency (a term is also known in various

international conventions), restrictions on the enjoyment of human rights are possible.
The condition referred to is "in time of public emergency with threatens the life of a
4
Op.Cit. Wahyu Wagiman, SH,2007, page 4

5
K Anwar, 2018, Hukum Humaniter Internasional, page 24-25, available at http://repo.iain-
tulungagung.ac.id/8066/10/Bab%20II.pdf (visisted at February 23, 2021)
nation, to the extent strictly required by the exigencies of the situation ...". Armed
conflict always takes its toll in any war. Starting from the individual, community, to the
national levelSuch as several incidents in Indonesia, namely the armed conflict in Aceh
or knows as DOM, disputes between residents in Ambon at the Peso, and human rights
violations in Papua. Unfortunately, this incident did not only cost millions of military
troops who were directly involved in the conflict. But also innocent civilians who suffer
even more tragic consequences.

Before the Geneva Conventions of 1949 hold, base on the International

humanitarian law did not apply to non-international armed disputes. The application of
international humanitarian law in armed conflict must be based on the status of the
armed conflict concerned. International humanitarian law only applies to non-
international armed disputes where an insurgent has acquired belligerent status.
Belligerent status is the only way to enforce International Humanitarian Law in non-
international armed disputes.

So far, there have been several human rights cases in Indonesia. One of them
violated the provisions of the Geneva Convention. Such as the armed conflict of the DOM
in 2003 that had received international attention. So, does International Humanitarian
Law apply in the armed conflict that occurred in Aceh? For this reason, it is necessary to
elaborate a little on what is meant by armed conflict, the formulations of which can be
found in the Geneva Conventions and Additional Protocols.

On September 10, 1958, Indonesia became a party to the 1949 Geneva

Convention which was ratified by Statute No. 59 of 1958. Then this Statute was included
in State Gazette No. 109 of 1958 Memory of Explanation and Supplement to State
Gazette No. 1644. This ratification shows that Indonesia is also subject to all the
provisions of the convention. Since the issuance of that Statute, the national legislation
that relates to international humanitarian law shall be established under the provisions
of the 1949 Geneva Conventions.6

6
Soektjo Hardiwinoto, H.M Kabul Supriyadhie, Muhammad Taqwim, Kajian Hukum Humaniter Internasional
terhadap Sistem Pertahanan Keamanan Indonesia, 2017, p:2, available at
https://www.neliti.com/id/publications/58655/kajian-hukum-humaniter-internasional-terhadap-sistem-
pertahanan-keamanan-indones, invited ad February 24, 2021
 On the other side, until today Indonesia has not ratified the Additional Protocol I
and Protocol II of 1977. According to Prof. Haryo Mataram "A draft ratification law is
already formulated and will be soon sent to the Parliament for approval. If the
Parliament has approved the draft must be signed by the President." Furthermore,
Haryomataram said we would ratify it with a declaration, not a reservation 7

Based on the 1949 Conventions and the 1977 Additional Protocol, the forms of armed
conflict can be distinguished as follows:

Armed conflict of an international nature and armed conflict of a non-international

nature:

a. Subject to article 3 of the Geneva Convention

b. Subject to Additional Protocol Il 1977

Tensions that are not classified as armed conflict are called internal disturbances or
tensions, also known as internal strife.8

Sulaiman has stated in his book” Jeda kemanusiaan Implementasi Humum

Humaniter International” 2000 argues that the armed conflict currently occurring in
Aceh can be classified as a form or type of armed conflict which is called "non-
international armed conflict". Now I want to determine which instruments of
international humanitarian law can be applied to this non-international armed conflict
in Aceh. We try to describe as follows:

a. The Additional Protocol I 1977

Based on the contents of Article J paragraph (3) and (4) Additional Protocol I of
1977, protocol applies:
1. In all wars it is stated:
2. In other disputes arising between two countries or more.
3. In all events of the occupation of part or all of the territory the disputing parties.
4. In the "war of national liberation".Adapun apa yang dimaksud dengan "war of
national liberation"
7
Sulaiman, Jeda kemanusiaan Implementasi Humum Humaniter International, 2000, p: 263, available at
http://webcache.googleusercontent.com/search?
q=cache:a8dEaeTD1R4J:jhp.ui.ac.id/index.php/home/article/view/316+&cd=1&hl=id&ct=clnk&gl=id (Visited at
February 24, 2021)
8
 This is formulated in article I, paragraph (4) as follows: "armed conflicts in which
peoples are fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of selfdetermination ... " It can be concluded
that Additional Protocol I applies only in the situation / circumstances as mentioned
above.
b. The Additional II 1977
It should be noted that AdditionalProtocol II deals with "noninternational armed
conflict". Does Protocol II apply to all noninternational conflicts? The answer can be
found in article 1 paragraph (I) of the Protocol, which specifies the following conditions:
1. The existence of an armed conflict between the armed forces of the country with
rebel forces.
2. The rebel forces can carry out regular military operations and continuously.
3. The rebel forces have occupied part of the country's territory.
4. .The rebel forces were able to implement this protocol.

Looking at the requirements on the two additional protocols above is very heavy so
that it is impossible to fulfill by the opposite party with the government also the
Indonesian government has not ratified the protocol referred to.

c. Article 3 Geneva Convention 1949

In the case of armed conflict not of an international character occurring inthe
territory of one the High Contracting Parties, each Party to conflict shall to apply; as a
minimum. The following provisions:

(1) Person taking no active part in the hostilities, including members of armed forces
who laid down their anns and those placed hors de combat by sickness, wound,
detention, or any other cause, shall in all circumstances be trated humanely, witout any
adverse distinction founded omn race, color, religion or faith, sex, birth or wealth, or
any other similar criteria. To this end, follong act are and shall remain prohibited at any
time and in any place whatsoever with respect to the above-mentioned persons:

a. Violence to life and person, in particular munder of all kinds, mutilation, cruel
treatment and torture;
b. Taking of hostages;
 c. Outrages upon personal dignity, in particular humanilialing and degrading
treatment:
d. The passing of sentences and carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all judicial
guarantees which are recognized as indispensable by civilized peoples,
e. The wounded and sick shall be collected and cared for. An impartial
humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict. The Parties to the conflict should
further endeavour to bring into force, by means of special agreements, all or part
of the other provisions of the present Convention. The application of the
preceding provision shall not affect the legal status of the Parties to the conflict.

In perspective, what is appropriate in Aceh is article 3 Geneva Convention 1949.

This article supports what is called armed conflict which is not of an international
nature occurring in the territory of a party to the convention, which reads: In the case of
an armed conflict that is not of an international nature occurring in the territory of one
of the High Contracting Parties. The article above the article is a requirement for its
coming into force so that the permit to dispute within the territory of a country will
then be valid. Then, article 3 paragraph (1) instructed all who disputing to treat the
following conditions:

Those who do not take an active part in the breach, including members of the
Armed Forces who have laid down their weapons as well as those who are no longer
participating (hors de combat) due to illness, injuries, detention or any other cause in
the circumstances however, it must be treated with humanity without any adverse
distinctions based on race, color, religion or creed, gender, ancestry or wealth or any
criteria other.

Still in Article 3 paragraph (I) for this purpose, the following actions are
prohibited and will still be prohibited from being carried out against the people
mentioned above at any time and at any place:

a. Actions of violence against body and soul, especially every kind of murder,
confinement, cruel treatment and persecution
b. Taking hostages;
c. Rape of personal honor, especially humiliating treatment and degrading
d. Sentencing and executing the death penalty without being subject to a decision
handed down by a court that is formed on a regular basis, which provides all
judicial guarantees recognized as a necessity by civilized nations.

This provision contains the main points of the victim's treatment war according to
a humanitarian principle which reflects the provisions of the Geneva Conventions of
1949 as a whole.

Article 3 requires the signatories to treat victims of an internal gun dispute

according to the principles adopted in paragraph (1).

Article 3 of the 1949 Geneva Conventions guarantees treatment according to the

principles of humanitarianism irrespective of the status of the bomber according to
law, or the nature of the weapons defense itself.

The International Court of Justice considers the provisions of article 3 to be a

general principle of humanitarian law. It cannot be denied that article 3 provides
protection to the people, including internal tensions, in addition to the guarantees
provided by irrevocable principles enshrined in human rights instruments. These
rights are rights inherent in human dignity, which may not be violated under any
circumstances. This article prohibits the fall and implementation of punishment
without legal process. So, the provisions are with regard to minimum standards of
human rights to be applied.

C. Conclusion
International humanitarian law was always close to human rights law, where
both two concepts cannot be separated each other. When discussing about
humanitarian law, we are also discussing concerning human rights in the context of
armed conflict condition. Although both International humanitarian law and
international human rights law has different basic sources, but that two concepts
basically stipulated the same thing, namely the protection to the people issue.
 International Humanitarian Law is a part of international law. Humanitarian law
does not only cover the provisions contained in international treaties but also includes
international customs that occur and are recognized. In general, the laws of war can be
divided into two, namely :The law which regulates the method of war and the tools that
can be used for war; and Laws protecting combatants, civilians from the consequences
of war. Where the first part is generally regulated in Hague Conventions and the second
part is regulated in the Geneva Conventions.

The International Court of Justice considers the provisions of article 3 to be a

general principle of humanitarian law. It cannot be denied that article 3 provides
protection to the people, including internal tensions, in addition to the guarantees
provided by irrevocable principles enshrined in human rights instruments. These
rights are rights inherent in human dignity, which may not be violated under any
circumstances. This article prohibits the fall and implementation of punishment
without legal process. So, the provisions are with regard to minimum standards of
human rights to be applied.