X. THE ACEH CONFLICT AND INTERNATIONAL HUMANITARIAN LAW

Indonesian and GAM forces in Aceh are bound by international humanitarian law, also known as the laws of war. The conflict in Aceh is considered to be a non-international (internal) armed conflict, for which the applicable law includes Article 3 common to the four Geneva Conventions of 1949, the Second Additional Protocol to the Geneva Conventions (Protocol II), and the customary laws of war.⁷⁶

Indonesia became a party to the Geneva Conventions in 1958. The application of the Geneva Conventions does not confer any status upon GAM, nor is it necessary for any government to recognize GAM's belligerent status for the relevant humanitarian law to apply. Although Indonesia is not a party to Protocol II, many if not all of its provisions reflect customary international law.

Human Rights Watch has documented numerous violations of international humanitarian law by both sides. Indonesian forces have been implicated in the summary execution of civilians and captured GAM members or suspected members, direct attacks against civilians and civilian property, the use of indiscriminate or disproportionate military force, and the use of collective punishments. They have also been responsible for violations of international human rights law, including extrajudicial executions, "disappearances," rape, torture and arbitrary arrest, as well as imposing unlawful restrictions on the rights to expression, association and assembly. GAM forces have been implicated in the summary execution of civilians and captured soldiers, destruction of civilian property, and unlawful detention. To date, neither the Indonesian government nor GAM has publicly stated its commitment to abide by international humanitarian law per se, although the Indonesian army in May issued guidelines to its forces to respect civilian lives and property.

Protection of Noncombatants

Common article 3 to the Geneva Conventions provides for the humane treatment of civilians and other persons not taking an active part in the hostilities (including captured members of opposing armed forces). Prohibited at all times are murder, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and summary trials.⁷⁷

In contrast to international conflicts, the law governing internal armed conflicts does not recognize the so-called "combatant's privilege," which provides combatants special status.⁷⁸ Thus, the Indonesian government is not obliged to grant captured GAM members prisoner-of-war status, nor is GAM so required to treat captured Indonesian soldiers. However, any party can agree to treat its captives as prisoners of war, and all parties are required to treat captured combatants-and civilians-humanely.

Protection of the Civilian Population
Humanitarian law seeks to protect civilians from the hardships of war. The distinction between civilians and combatants is fundamental to the laws of armed conflict. In situations of internal armed conflict, generally speaking, a civilian is anyone who is not a member of the armed forces or of an organized armed group that is a party to the conflict.⁷⁹ Thus policemen without combat duties are not legitimate military targets.⁸⁰ Likewise, civilians who directly participate in fighting lose their immunity from attack for as long as they directly participate in hostilities.⁸¹

A fundamental rule of humanitarian law is that the civilian population and individual civilians shall not be the object of attack. Acts or threats of violence against the civilian population that spread terror are also prohibited.⁸²

Common article 3 sets basic standards for the prosecution and punishment of criminal offenses related to the armed conflict. A party to the conflict may only impose a sentence after a judgment by a regularly constituted court providing fair trial guarantees.⁸³ Civilians are likewise protected from "collective punishment," which is punishing persons without establishing individual criminal responsibility.⁸⁴

In addition to protections from inhumane treatment and direct attack, humanitarian law protects the civilian population in other ways. Armed forces may not destroy "objects indispensable to the civilian population" - the starvation of civilians as a method of combat is prohibited, as is the destruction of objects necessary for civilians to survive, such as agricultural areas and the water supply.⁸⁵ Also unlawful are attacks on "installations containing dangerous forces" such as dams, ⁸⁶ and cultural objects and places of worship.⁸⁷

Designation of Military Objectives
The fundamental distinction between civilian and military also determines which objects may be legitimate targets of attack. The laws of war characterize an object as civilian unless it contributes effectively to the enemy's military capability or activity, and its destruction or neutralization offers a definite military advantage at the time. Legitimate military objectives are combatants' weapons, convoys, installations, and supplies.⁸⁸

Objects normally dedicated to civilian use, such as houses, schools, hospitals and places of worship, are presumed not to be military objectives. If they in fact do assist the enemy's military action, they can lose their immunity from direct attack. The presumption that an object is civilian in nature does not include objects such as transportation and communications systems that can have a military purpose. In such circumstances, it is necessary to analyze whether the facility meets the test for a military target.⁸⁹

Prohibition Against Indiscriminate and Disproportionate Attacks
Humanitarian law prohibits attacks that are either indiscriminate or disproportionate. Indiscriminate attacks are those that are not directed at a specific military target or are carried out in a manner or with weapons that cannot be so directed. They are attacks that strike military objectives and civilians or civilian objects without distinction.⁹⁰

Attacks on even legitimate military targets are limited by the principle of proportionality. Combatants have a duty to choose a means of attack that avoids or minimizes damage to civilians. In particular, the attacker must refrain from launching an attack if the expected civilian casualties would outweigh the importance of the military target to the attacker. Any foreseeable injury to civilians and damage to civilian objects must not be excessive in comparison to the expected concrete and definite military advantage.⁹¹

The Protection of Civilians from Displacement
Parties to a conflict may not order the displacement of civilians unless it is for the security of the civilians involved or for "imperative military reasons." Should such displacements be carried out, all possible measures must be taken so that the civilian population has satisfactory conditions of shelter, hygiene, health, safety and nutrition.⁹²

Mass relocation or displacement of civilians solely for the purpose of denying a willing social base to the opposing force is prohibited. It does not promote the security of civilians nor does it meet the standard for imperative military reasons, which are even greater than that of military necessity.⁹³

Human Rights Watch believes that both sides have violated basic principles of international humanitarian law in Aceh. In a June 2001 letter, Human Rights Watch urged the GAM leadership to publicly commit itself to those principles and to take action against members of its forces who violate them. In meetings with senior security officials in Banda Aceh in May, Human Rights Watch staff raised specific instances of violations and pointed out the need for officers to be held accountable.

⁷⁶ To be considered an internal armed conflict for purposes of the Geneva Conventions, hostilities within a state must have reached a level of armed conflict beyond mere internal tensions, disturbances, riots, or isolated acts of violence. The official Commentary to common article 3 of the Geneva Conventions, which concerns internal armed conflicts, lists a series of conditions that, although not obligatory, provide some pertinent guidelines. First and foremost among these is whether the party in revolt against the de jure government, in this case GAM, "possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention." International Committee of the Red Cross (ICRC), Commentary, IV Geneva Convention (Geneva 1958), p. 35.
Other conditions outlined in the convention's commentary deal with the government's response to the insurgency. An indication that there is an internal armed conflict is the government's recognition that it is obliged to use its regular military forces against an insurgency. Ibid.
By these standards, the conflict in Aceh is an internal armed conflict. GAM has a sizeable armed force, a clear hierarchy, and a territorially-based structure. Indonesian military forces have been used in operations against GAM forces since at least 1990.

⁷⁷ Protocol II, arts. 4-6, elaborates upon common article 3's requirement of humane treatment and provides a more comprehensive list of protections for civilians in internal armed conflicts. These include, for instance, prohibitions on the desecration of corpses and the recruitment of children under fifteen into armed forces or groups.

⁷⁸ The "combatant's privilege" is a license to kill or capture enemy troops and destroy military objectives. This privilege immunizes combatants from criminal prosecution by their captors for their violent acts that do not violate the laws of war but would otherwise be crimes under domestic law. Prisoner of war status originates from this privilege. See W. Solf, "The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice," American University Law Review, no.33 (1953), p. 59.

⁷⁹ The term "civilian" also includes some employees of the military establishment who are not members of the armed forces but assist them. While as civilians they may not be targeted, these civilian employees of military establishments or those who indirectly assist combatants assume the risk of death or injury incidental to attacks against legitimate military targets in the immediate vicinity of military targets. See M. Bothe, K. Partsch, and W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), p. 303.

⁸⁰ Report of Working Group B, Committee I, 18 March 1975 (CDDH/I/238/Rev.1; X, 93), in Howard S. Levie, ed., The Law of Non International Armed Conflict, (Dordrecht, Netherlands: Martinus Nijhoff, 1987), p. 67.

⁸¹ See New Rules for Victims of Armed Conflicts, p. 303. Direct participation in hostilities means "acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces," and includes acts of defense. ICRC, Commentary on the Additional Protocols (Geneva: Martinus Nijhoff, 1987), p. 619. "Hostilities" not only covers the time when the civilian actually makes use of a weapon but also the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon. Ibid., pp. 618-19.

⁸² Protocol II, art. 13.

⁸³ Geneva Conventions, Art. 3(1)(d). Protocol II, art. 6, provides that no sentence or penalty shall be imposed on a person unless handed down by an independent and impartial court, after a trial in which the accused is given the rights and means of a defense.

⁸⁴ Geneva Convention IV, art. 33. Common article 3 to the Geneva Conventions requires a fair trial before a person can be punished. Protocol II, art. 6(2)(b), explicitly forbids collective punishment.

⁸⁵ Protocol II, art. 14.

⁸⁶ Ibid., art. 15.

⁸⁷ Ibid., art. 16.

⁸⁸ First Additional Protocol to the Geneva Conventions (Protocol I), art. 52 (2). Protocol I, which applies to international armed conflict, provides useful interpretative guidance on the rules of war in internal armed conflicts. See New Rules for Victims of Armed Conflicts, pp. 306-7.

⁸⁹ See Commentary on the Additional Protocols, pp. 635-37.

⁹⁰ Protocol I, art. 51(4).

⁹¹ Protocol I, art. 51(5). See Commentary on the Additional Protocols pp. 623-26.

⁹² Protocol II, art. 17.

⁹³ See Commentary on the Additional Protocols, pp. 1472-73.