Although international law forbids states to use force against each other, every state has an obl... more Although international law forbids states to use force against each other, every state has an obligation to stop the ongoing violation of international humanitarian law. Consequently, the relevance of the traditional law of neutrality is questionable and often considered obsolete in contemporary armed conflict. The United States of America introduced the doctrine of qualified neutrality. The doctrine allows other states to do something when there is a threat or ongoing violations of the peace and security of humankind. The United States has commonly justified its military assistance to one of the warring parties using the doctrine as in the current Russia-Ukraine War. The United States provides vast military assistance to Ukraine, consisting of weapons and specialized military training to stop Russian aggression. This study aims to assess the qualified neutrality doctrine from an international law perspective and whether the United States can still preserve its neutral status or bec...
Since it had established a caliphate in 2014, Islamic State of Iraq and Syria (ISIS) continued t... more Since it had established a caliphate in 2014, Islamic State of Iraq and Syria (ISIS) continued to threaten the international peace and security by attacking and killing civilians. ISIS foreign terrorist fighters (FTFs) are ISIS members who have combat functions. Altough it is a serious crime, terrorism has not yet been recognized as a stand-alone core international crimes according to customary international law. The fact that ISIS is referred to as a terrorist groups, not a state-entity, has also raised a question of whether ISIS FTFs can only be prosecuted for committing terrorism related offences. This paper argues that terrorism acts by ISIS FTFs can fit the element of the existing core international crimes such as crimes against humanity, war crimes and genocide To this end, this paper elaborates the most common offences committed by ISIS FTFs and analyses element of each of core international crimes. This paper concludes that ISIS FTFs should be held liable for ...
Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian internasional tidak mela... more Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian internasional tidak melahirkan kewajiban dan hak bagi negara ketiga tanpa adanya consent. Tulisan ini akan mengkaji persoalan jurisdiksi International Criminal Court (ICC) terhadap warga negara non-pihak Statuta Roma dihubungkan dengan prinsip di atas dan dampaknya terhadap Indonesia. Hasil penelitian menunjukan bahwa tidak ada pelanggaran hukum perjanjian internasional dalam hal kewenangan ICC mengadili warga negara non-pihak meskipun tidak ada consent dari negara non-pihak tersebut. Fakta Indonesia bukan negara pihak Statuta Roma tidak lantas menghalangi warga negara Indonesia untuk diadili dimuka ICC.The Jurisdiction of International Criminal Court over Non-party States and Its Implication to Indonesia AbstractPrinciple of pacta tertiis nec nocent nec prosunt underlines that a treaty does not create either obligations or rights for a third State without its consent. This paper examines International Crimina...
Unsustainable groundwater extraction in Jakarta has resulted in the subsidence of its land. Said ... more Unsustainable groundwater extraction in Jakarta has resulted in the subsidence of its land. Said effect had prompted the Regional Government to limit groundwater extraction. Consequently, the limitation threatens Jakarta residents’ minimum core enjoyment of the Human Right to Water (HRtW). People who live in coastal areas are the most affected. Northern Jakarta have considered the limitation as a burden that force them to spend more on necessities. Since there are no safeguards nor alternatives and that the limitation is from the Regional Government is disproportionate, this study argues that there is a violation of Jakarta residents’ Human Right to Water since their access towards water has been impeded, especially in areas without piped water. The Human Right to Water is a fundamental right, a foundation of the enjoyment of other rights. Like other human rights, it can be limited if the alternatives have already been installed. This study argues that, in the case of Jakarta, the s...
Indonesian Abstract: Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian int... more Indonesian Abstract: Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian internasional tidak melahirkan kewajiban dan hak bagi negara ketiga tanpa adanya consent. Tulisan ini akan mengkaji persoalan jurisdiksi International Criminal Court (ICC) terhadap warga negara non-pihak Statuta Roma dihubungkan dengan prinsip di atas dan dampaknya terhadap Indonesia. Metode penelitian yang digunakan adalah deskriptif analitis dengan pendekatan yuridis normatif. Hasil penelitian menunjukan bahwa tidak ada pelanggaran hukum perjanjian internasional dalam hal kewenangan ICC mengadili warga negara non-pihak meskipun tidak ada consent dari negara non-pihak tersebut. Fakta Indonesia bukan negara pihak Statuta Roma tidak lantas menghalangi warga negara Indonesia untuk diadili dimuka ICC. English Abstract: Principle of pacta tertiis nec nocent nec prosunt underlines that a treaty does not create either obligations or rights for a third State without its consent. This paper examine...
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law), 2021
The interests of justice are criteria of the requirements under Article 53 of the Rome Statute to... more The interests of justice are criteria of the requirements under Article 53 of the Rome Statute to open a formal investigation of a case. However, it can be misinterpreted due to its lack of clear scopes and standards. The Afghanistan case highlighted this obscurity when The Pre-Trial Chamber (PTC) decided that the case should not proceed due to the interests of justice despite lacking negative determination from the Prosecutor, and the Appeals Chamber (AC) overturned this decision by excluding the interests of justice from proprio motu cases. This article verifies the limitations of the criteria in international criminal law (ICL) through the interpretation of the Rome Statute. In addition, it includes the other ICC’s supporting documents and the application to previous cases. This study is of the position that, in the Afghanistan decision, the PTC had overstepped their authority and made an arbitrary decision. The AC had misinterpreted the conjunction between Article 53(3) and Arti...
ABSTRACTTechnological development has given rise to new means and methods of warfare such as cybe... more ABSTRACTTechnological development has given rise to new means and methods of warfare such as cyber-attack and can potentially have devastating humanitarian consequences. In times of armed conflict, International Humanitarian Law (IHL) limits certain use of weapons, however, it is questionable whether an armed conflict exists in the situation where cyber-attack is employed alone. In 2007, Estonia suffered severe damages due to cyber-attacks that were equal to the damages caused by kinetic weapons. Yet, there is a debate whether IHL applies in the Estonia case due to the shortage of a kinetic weapon. The Estonia case has generated NATO and other states to draft a cyber-warfare manual (Tallinn Manual 1.0) that, in its Rule 30, affirms the IHL applicability in the case of only cyber-attack. Due to the importance of this Rule, this article argues that Rule 30 shall be considered as a legally binding provision in the form of customary international law. This Rule has satisfied widely prac...
This article aimed to analyze the classification of armed conflict in Estonia's cyber-attack ... more This article aimed to analyze the classification of armed conflict in Estonia's cyber-attack and how the existing IHL are answering this problem, and whether those regulations are enough for future cases of cyber-attack. This article uses the normative method by comparing the Geneva Convention 1949 and Additional Protocol I 1977 with Rule 30 Tallinn Manual 1.0 and some relevant literary works, using a descriptive-analytic to explain the object comprehensively. The result shows that Estonia's cyber-attack could be classified as an International Armed Conflict, which first started as a Non-International Armed Conflict by proving attribution from Russia to Nashi Youth Group following the Overall Control in Tadic Case. The distinction between information warfare and cyber-attack is related to the physical impact, which a threshold of a cyber-attack under Tallinn Manual 1.0. It means Rule 30 of Tallinn Manual 1.0 also answered Jus ad Bellum's threshold and Jus in Bello in ter...
Autonomous Weapon Systems (AWS) has been developed as an alternative weapon system in the battlef... more Autonomous Weapon Systems (AWS) has been developed as an alternative weapon system in the battlefield. It has a fundamental difference with other weapons systems which lies in decision making carried out without human intervention. AWS is able to make decisions about life and death and it has been legally, morally and ethically challenged since it has potential to distract moral and ethical on the battlefield. However, as a smart weapon, it gives a significant advantage since it can be deployed in very dangerous areas for the purpose of self-defense in critical situations. This article argues that AWS is still a conventional weapon and cannot be absolutely prohibited even if it is deemed as a vulnerable and destructive weapon which potentially violates international humanitarian law (IHL). AWS is still fully compliant with IHL basic principles for as long as there is a sufficient legal basis that provides the limit and legality of the use of AWS. Accordingly, this article also sugge...
Article VI of the 1968 Nuclear Non-Proliferation Treaty (NPT) requires all state parties to disar... more Article VI of the 1968 Nuclear Non-Proliferation Treaty (NPT) requires all state parties to disarm nuclear weapon. Following its official withdrawal from NPT in 2003, North Korea maintains to develop its nuclear weapon and conducts several nuclear tests. Moreover, it even proudly declared as a nuclear state in its Constitution's preamble. It also argues that the nuclear weapon developments and tests were conducted within their territory and, currently, North Korea is not bound by any treaty prohibiting such developments and tests. The statement is strongly opposed by the international community, particularly their neighboring states: Japan and South Korea. This article argues that the obligation to disarm nuclear weapon deriving from the NPT still binds North Korea since such obligation has reached the status of customary international law and consequently binds every state unless such state persistently objects the rule from the beginning of its formation. In this case, North K...
Although international law forbids states to use force against each other, every state has an obl... more Although international law forbids states to use force against each other, every state has an obligation to stop the ongoing violation of international humanitarian law. Consequently, the relevance of the traditional law of neutrality is questionable and often considered obsolete in contemporary armed conflict. The United States of America introduced the doctrine of qualified neutrality. The doctrine allows other states to do something when there is a threat or ongoing violations of the peace and security of humankind. The United States has commonly justified its military assistance to one of the warring parties using the doctrine as in the current Russia-Ukraine War. The United States provides vast military assistance to Ukraine, consisting of weapons and specialized military training to stop Russian aggression. This study aims to assess the qualified neutrality doctrine from an international law perspective and whether the United States can still preserve its neutral status or bec...
Since it had established a caliphate in 2014, Islamic State of Iraq and Syria (ISIS) continued t... more Since it had established a caliphate in 2014, Islamic State of Iraq and Syria (ISIS) continued to threaten the international peace and security by attacking and killing civilians. ISIS foreign terrorist fighters (FTFs) are ISIS members who have combat functions. Altough it is a serious crime, terrorism has not yet been recognized as a stand-alone core international crimes according to customary international law. The fact that ISIS is referred to as a terrorist groups, not a state-entity, has also raised a question of whether ISIS FTFs can only be prosecuted for committing terrorism related offences. This paper argues that terrorism acts by ISIS FTFs can fit the element of the existing core international crimes such as crimes against humanity, war crimes and genocide To this end, this paper elaborates the most common offences committed by ISIS FTFs and analyses element of each of core international crimes. This paper concludes that ISIS FTFs should be held liable for ...
Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian internasional tidak mela... more Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian internasional tidak melahirkan kewajiban dan hak bagi negara ketiga tanpa adanya consent. Tulisan ini akan mengkaji persoalan jurisdiksi International Criminal Court (ICC) terhadap warga negara non-pihak Statuta Roma dihubungkan dengan prinsip di atas dan dampaknya terhadap Indonesia. Hasil penelitian menunjukan bahwa tidak ada pelanggaran hukum perjanjian internasional dalam hal kewenangan ICC mengadili warga negara non-pihak meskipun tidak ada consent dari negara non-pihak tersebut. Fakta Indonesia bukan negara pihak Statuta Roma tidak lantas menghalangi warga negara Indonesia untuk diadili dimuka ICC.The Jurisdiction of International Criminal Court over Non-party States and Its Implication to Indonesia AbstractPrinciple of pacta tertiis nec nocent nec prosunt underlines that a treaty does not create either obligations or rights for a third State without its consent. This paper examines International Crimina...
Unsustainable groundwater extraction in Jakarta has resulted in the subsidence of its land. Said ... more Unsustainable groundwater extraction in Jakarta has resulted in the subsidence of its land. Said effect had prompted the Regional Government to limit groundwater extraction. Consequently, the limitation threatens Jakarta residents’ minimum core enjoyment of the Human Right to Water (HRtW). People who live in coastal areas are the most affected. Northern Jakarta have considered the limitation as a burden that force them to spend more on necessities. Since there are no safeguards nor alternatives and that the limitation is from the Regional Government is disproportionate, this study argues that there is a violation of Jakarta residents’ Human Right to Water since their access towards water has been impeded, especially in areas without piped water. The Human Right to Water is a fundamental right, a foundation of the enjoyment of other rights. Like other human rights, it can be limited if the alternatives have already been installed. This study argues that, in the case of Jakarta, the s...
Indonesian Abstract: Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian int... more Indonesian Abstract: Prinsip pacta tertiis nec nocent nec prosunt menegaskan bahwa perjanjian internasional tidak melahirkan kewajiban dan hak bagi negara ketiga tanpa adanya consent. Tulisan ini akan mengkaji persoalan jurisdiksi International Criminal Court (ICC) terhadap warga negara non-pihak Statuta Roma dihubungkan dengan prinsip di atas dan dampaknya terhadap Indonesia. Metode penelitian yang digunakan adalah deskriptif analitis dengan pendekatan yuridis normatif. Hasil penelitian menunjukan bahwa tidak ada pelanggaran hukum perjanjian internasional dalam hal kewenangan ICC mengadili warga negara non-pihak meskipun tidak ada consent dari negara non-pihak tersebut. Fakta Indonesia bukan negara pihak Statuta Roma tidak lantas menghalangi warga negara Indonesia untuk diadili dimuka ICC. English Abstract: Principle of pacta tertiis nec nocent nec prosunt underlines that a treaty does not create either obligations or rights for a third State without its consent. This paper examine...
PADJADJARAN Jurnal Ilmu Hukum (Journal of Law), 2021
The interests of justice are criteria of the requirements under Article 53 of the Rome Statute to... more The interests of justice are criteria of the requirements under Article 53 of the Rome Statute to open a formal investigation of a case. However, it can be misinterpreted due to its lack of clear scopes and standards. The Afghanistan case highlighted this obscurity when The Pre-Trial Chamber (PTC) decided that the case should not proceed due to the interests of justice despite lacking negative determination from the Prosecutor, and the Appeals Chamber (AC) overturned this decision by excluding the interests of justice from proprio motu cases. This article verifies the limitations of the criteria in international criminal law (ICL) through the interpretation of the Rome Statute. In addition, it includes the other ICC’s supporting documents and the application to previous cases. This study is of the position that, in the Afghanistan decision, the PTC had overstepped their authority and made an arbitrary decision. The AC had misinterpreted the conjunction between Article 53(3) and Arti...
ABSTRACTTechnological development has given rise to new means and methods of warfare such as cybe... more ABSTRACTTechnological development has given rise to new means and methods of warfare such as cyber-attack and can potentially have devastating humanitarian consequences. In times of armed conflict, International Humanitarian Law (IHL) limits certain use of weapons, however, it is questionable whether an armed conflict exists in the situation where cyber-attack is employed alone. In 2007, Estonia suffered severe damages due to cyber-attacks that were equal to the damages caused by kinetic weapons. Yet, there is a debate whether IHL applies in the Estonia case due to the shortage of a kinetic weapon. The Estonia case has generated NATO and other states to draft a cyber-warfare manual (Tallinn Manual 1.0) that, in its Rule 30, affirms the IHL applicability in the case of only cyber-attack. Due to the importance of this Rule, this article argues that Rule 30 shall be considered as a legally binding provision in the form of customary international law. This Rule has satisfied widely prac...
This article aimed to analyze the classification of armed conflict in Estonia's cyber-attack ... more This article aimed to analyze the classification of armed conflict in Estonia's cyber-attack and how the existing IHL are answering this problem, and whether those regulations are enough for future cases of cyber-attack. This article uses the normative method by comparing the Geneva Convention 1949 and Additional Protocol I 1977 with Rule 30 Tallinn Manual 1.0 and some relevant literary works, using a descriptive-analytic to explain the object comprehensively. The result shows that Estonia's cyber-attack could be classified as an International Armed Conflict, which first started as a Non-International Armed Conflict by proving attribution from Russia to Nashi Youth Group following the Overall Control in Tadic Case. The distinction between information warfare and cyber-attack is related to the physical impact, which a threshold of a cyber-attack under Tallinn Manual 1.0. It means Rule 30 of Tallinn Manual 1.0 also answered Jus ad Bellum's threshold and Jus in Bello in ter...
Autonomous Weapon Systems (AWS) has been developed as an alternative weapon system in the battlef... more Autonomous Weapon Systems (AWS) has been developed as an alternative weapon system in the battlefield. It has a fundamental difference with other weapons systems which lies in decision making carried out without human intervention. AWS is able to make decisions about life and death and it has been legally, morally and ethically challenged since it has potential to distract moral and ethical on the battlefield. However, as a smart weapon, it gives a significant advantage since it can be deployed in very dangerous areas for the purpose of self-defense in critical situations. This article argues that AWS is still a conventional weapon and cannot be absolutely prohibited even if it is deemed as a vulnerable and destructive weapon which potentially violates international humanitarian law (IHL). AWS is still fully compliant with IHL basic principles for as long as there is a sufficient legal basis that provides the limit and legality of the use of AWS. Accordingly, this article also sugge...
Article VI of the 1968 Nuclear Non-Proliferation Treaty (NPT) requires all state parties to disar... more Article VI of the 1968 Nuclear Non-Proliferation Treaty (NPT) requires all state parties to disarm nuclear weapon. Following its official withdrawal from NPT in 2003, North Korea maintains to develop its nuclear weapon and conducts several nuclear tests. Moreover, it even proudly declared as a nuclear state in its Constitution's preamble. It also argues that the nuclear weapon developments and tests were conducted within their territory and, currently, North Korea is not bound by any treaty prohibiting such developments and tests. The statement is strongly opposed by the international community, particularly their neighboring states: Japan and South Korea. This article argues that the obligation to disarm nuclear weapon deriving from the NPT still binds North Korea since such obligation has reached the status of customary international law and consequently binds every state unless such state persistently objects the rule from the beginning of its formation. In this case, North K...
Uploads