REMEDIAL ASSIGNMENT

International Law Studies

Lecturer: Dr. Takdir Ali Mukti

Name: Hanif Afdol Prakoso

NIM: 20180510451

ASSIGNMENT 1
RELATIONSHIP OF NATIONAL LAW WITH INTERNATIONAL LAW

Unlike the national legal system, which has formal institutions such as the legislature,
police, prosecutors, heads of government both at the central and regional levels and the courts. In
this case, the international legal system does not have all of these, which means it lacks formal
institutions. International law can be defined as the whole law which consists for the most part of
the principles and codes of conduct to which states feel they are bound to obey and so need to be
obeyed because of the force of law that binds them. Mochtar Kusumaatmadja defines international
law as the overall rules and legal principles governing relations or issues that cross national borders
(international relations) that are not civil in nature. Currently, violations of international law often
occur this is due to the increasing development of the international community. It is very
interesting to discuss that countries as subjects of international law tend to obey and comply with
the rules of international law in resolving their disputes (Kurnia, 2008).

International Law does not have a supranational body that has the authority to make and
enforce an international rule, there are no law enforcement officers authorized to take direct action
against countries that violate international law, and the relationship is based on a coordinating not
sub-ordinating relationship. However, it turns out that in practice the international community is
willing to accept international law as real law, not only as a positive moral (Sefriani, 2011). The
essence of international law is as real law. The number of violations that occur is much smaller
than the existing obedience. This of course raises further questions, what makes the international
community willing to accept IR as law? (Sefriani, 2011)
 The existence and nature of international law cannot be doubted, therefore it requires a
basis of strength in binding international law. In this case, the theory of the binding force of
international law is the theory of natural law because it has had a huge influence on international
law since its early development. This is marked by teachings that have strong religious beliefs so
that natural law is seen as an ideal law because it is based on the nature of humans as intelligent
beings (Sunyowati, 2013). Natural law sees international law as binding because there are natural
laws that are set on social life. Therefore, states can be bound by international law because of their
relationship with each other in which international law has higher law. The other theory that binds
the force of international law is the self-limitation theory. In this case, this theory refers to the
state as the source of all law, including international law. Therefore, because the state must comply
with international law of its own volition. Both theories have their respective strengths and
weaknesses.

The various weaknesses and disadvantages of this school are tried to be overcome by other
schools of the theory of the will of the state which rely on the binding power of international law
on mutual will (Sunyowati, 2013). International law can be binding on states because of their will
one by one to be bound but there is a common will that is higher than the will of each country to
submit to international law. As for the opinion of another theory that the common will of this state
is very different from the will of a specific state or the binding nature of customary law, it says
that the will to be bound by international law is implied, by releasing it from the individual will of
the state and basing it on a common will (Sunyowati, 2013).

International legal obligations have only morally binding force. The factors that encourage
countries to obey international law are the various concerns that arise from within the country
itself, such as concerns about being seen as members of the community of nations that are not
good, concerns about being seen as provocateurs for cases of international crimes and concerns
about the emergence of international crimes. the rioters are also worried about the threat of
disruption to world order (Carty, 2007). In this case, various countries have their own fears if they
do not comply with international law, although perhaps in practice many countries do not feel
important with the existence of international law, but there are separate fears from countries if they
do not comply with international law. The disobedience that occurs in the practice of international
relations is due to the lack of clarity in the sources of international law itself, giving rise to multiple
interpretations rather than the state's intentional violation of international law.

When viewed as a whole, the existence of a force that strengthens international law is
caused not only by legal subjects obeying these rules but also because of the fear that good relations
will be disrupted with other parties if legal subjects do not comply with international law.
Compliance with legal subjects can be assessed through a rule of law that does not only look at the
number of those who comply but also emphasizes the quality of how effectively international law
is adhered to (Sefriani, 2011). It must be admitted that in addition to the need factor, there are other
factors such as the fear of losing profits or facilities from other countries as well as the fear of
being excluded from international relations which contributes to the international community's
adherence to international law. However, all of this defeats obedience because of the common
need for the rule of law which is expected to provide a sense of security, order, justice, and legal
certainty. It can be said that obedience to the international community is more about adherence to
identification and internalization (Sefriani, 2011).

Overall, the theory of natural law, the theory of the will of the state as a form of how
national relations with international law. In the flow of dualism which sees that national and
international law have different legal systems because the subject of national law is an individual,
but the subject of international law is the state (Ariadno, n.d). In addition, the source of national
law is the will of the state, while international law is the common will of the states. The principle
underlying national law is the state constitution, while international law is based on the principle
of binding agreements. Delegation of authority from international law to national law to determine
which provisions of international law will be enforced and what procedures will be followed. In
contrast to the flow of monism, which sees national and international law as a unified whole in the
science of law, because basically all laws consist of binding rules, whether they are states or
individuals or other subjects. In this case, national law does have full sovereignty, but this only
reflects that the state will have authority with international law as a barrier (Ariadno, n.d).

Reference

Ariadno, M. K. (n.d). Kedudukan Hukum Internasional dalam Sistem Hukum Nasional. Jurnal
Hukum Internasional.
Carty, A. 2007. Philosophy of International Law, Edinburgh University Press.

Kurnia, M. P. (2008). Hukum Internasional (Kajian Ontologis) (International Law an Ontological

Review). Risalah Hukum, 4(2), 77–85.

Kusumaatmadja, M. (2004). Pengantar Hukum Internasional. UNPAD.

Sefriani, S. (2011). Ketaatan Masyarakat Internasional Terhadap Hukum Internasional Dalam

Perspekti Filsafat Hukum. Jurnal Hukum Ius Quia Iustum, 18(3), 405–427.
https://doi.org/10.20885/iustum.vol18.iss3.art6

Sunyowati, D. (2013). HUKUM INTERNASIONAL SEBAGAI SUMBER HUKUM DALAM

HUKUM NASIONAL (Dalam Perspektif Hubungan Hukum Internasional Dan Hukum
Nasional Di Indonesia). Jurnal Hukum Dan Peradilan, 2(1), 67.
https://doi.org/10.25216/jhp.2.1.2013.67-84
 ASSIGNMENT 2

INTERNATIONAL HABITS AS A LEGAL SOURCE

Initially, international law was based more on state customs and the opinions of legal
experts. This is because in the past, international custom played a major role as a source of
international law (A.K, n.d). International law is a matter of various problems and reciprocal
relations between countries. In this case the absence of an international legal system, the
international community of countries cannot enjoy the benefits of trade, commercial, exchange of
ideas, and regular communication (Sunyowati, 2013).

However, in its development there has been a change in the source of law because the
meaning of international customs has become smaller with the number of agreements that make
up law. Prof. Mochtar Kusumaatmadja and Prof. When discussing sources of international law,
Suhardi mostly follows the provisions contained in the formulation of article 38 of the Statute of
the International Court of Justice. Based on article 38 paragraph 1, the case is adjudicated to him
so that the international court will use international agreements that are general and specific in
nature with legal provisions that are explicitly recognized by the disputing countries (A.K, n.d). In
this case, international custom is used as evidence of a general practice that has been accepted as
law. Third, general legal principles recognized by civilized nations as well as court decisions and
the teachings of leading scholars from various countries as sources for establishing the rule of law.

This international custom was created because of the factor that there must be customs that
are carried out and followed by many countries and these habits must be considered as legal
obligations. When viewed from the position of international customs as a source of international
relations. Judging from the order, it turns out that international custom ranks second after
international agreements (Ariadno, 2008). According to Mochtar, the order of mention in legal
sources does not describe the importance of each source as a formal source because it is not
regulated at all in article 38 paragraph 1 of the Court's Statute. However, the article emphasizes
that court decisions and legal expert opinions can be used as a way to find what is called a legal
regulation.
 The absence of an important order and the absence of a position regarding the primary legal
source so that it does not have priority. Therefore, the international courts or international judicial
bodies in this case are not limited in their freedom to apply the three sources of law in certain
cases. In some cases, for example, when the Court applies general legal principles despite the
existence of international agreements or international customs. This of course must be with
various considerations that are far more secure in ensuring justice and meeting the legal needs of
the disputing parties (Sunyowati, 2013).

The subjects of international law are related to people who in all activities or actions are
regulated that cause legal consequences so that they have the authority in the form of rights or
obligations whose purpose is to carry out an act based on the provisions of positive law. If the
subject of international law can fulfill the rights and obligations in international law, it will have
full legal capacity and full legal personality. In contrast to legal subjects who are only able to
fulfill one indicator, they have limited legal capacity. Subjects of international law are all holders
of rights and obligations under international law, so members of the world community or society
are not only countries.

In this case, the subjects of international law are divided into two, namely state legal
subjects (state actors) and non-state legal subjects (non-state actors). State elements that can be
used as subjects of international law are permanent residents, definite territory, government,
having the ability to establish relations with other countries. In contrast to the non-state element,
the holy see is recognized as a subject of international law at the Vatican based on the Lateran
Treaty between the Italian government and the Holy See regarding the surrender of a plot of land
in Rome..

In addition, international organizations can also be subject to international law because

they were formed by two countries based on an agreement so that they have a clear function.
international law becomes very strategic. Rebels can also gain positions and rights as parties to
the dispute in certain circumstances.

The development is very rapid in various fields so that there is a shift in the main sources
of international law which were originally custom to become conventions or traditions. This is
because many newly independent countries are generally not European countries that feel. If we
look at historically that international law in the past was very European centric, this made other
independent countries not get much attention. Many newly independent countries feel that the
custom that grew and developed in the western world is used as a tool to control them and because
of that they feel they don't use it much to defend it.

An example that can be presented in this paper is when the government of the Republic of
Indonesia took action to take over Dutch-owned companies, especially plantations, which was then
followed by nationalization actions. This can be seen as a form of violation of international law
that provides protection to foreigners and foreign property. Violation of the law against the
provisions of international law above is a correction that these newly independent countries do not
take into account the interests of countries that are now independent countries that are classified
as developing countries. In this case, Indonesia is a subject of international law. As for the other
case, namely Indonesia which violated customary international law in the Tobacco case in which
Indonesia did not provide compensation as it should. In the current context, countries in the world
tend to pay more attention to the welfare of mankind than in the past, resulting in the emergence
of multi-polarism in the political and economic fields.

International custom is a source of international law because of the many treaties that make
up the law governing international relations. In this case, there is a transition from the main source
of international law, custom to the main convention. In addition, in formal juridical terms, customs
and international agreements have equal legal standing. However, from a juridical point of view,
international custom can be seen as a concrete positive method, while legal principles are only
seen as a principle so that their nature becomes more abstract. The existence of these sources of
law causes states to follow and obey the main rules, because these rules are available in an
international agreement made by states that bind themselves to the treaty (treaty-law). Countries
that are participants in an international agreement made under international treaty law must comply
with the agreement, because the state is bound by the pacta sund servanda. (Sunyowati, 2013).

Reference

A.K, S. (n.d). Kebiasaan Internasional. Retrieved from:

http://jhp.ui.ac.id/index.php/home/article/viewFile/1102/1025

Ariadno, M. K. (2008). Kedudukan Hukum Internasional dalam Sistem Hukum Nasional. In

Indonesian Journal of International Law (Vol. 5, Issue 3).
 https://doi.org/10.17304/ijil.vol5.3.179

Sunyowati, D. (2013). HUKUM INTERNASIONAL SEBAGAI SUMBER HUKUM DALAM

HUKUM NASIONAL (Dalam Perspektif Hubungan Hukum Internasional Dan Hukum
Nasional Di Indonesia). Jurnal Hukum Dan Peradilan, 2(1), 67.
https://doi.org/10.25216/jhp.2.1.2013.67-84

Kusumaatmadja, M. (2004). Pengantar Hukum Internasional. UNPAD.

ASSIGNMENT 3
International Humanitarian Law in Israel's Assault on Gaza, Palestine

A.Background
The study of International Relations, conflict and violence are various interesting topics to
continue to be studied as forms of interaction between international actors. War is the highest
level of conflict between two or more parties. This type of interaction has taken place since the
emergence of human civilization until now. Problems in conflicts and wars become contemporary
issues in a study of International Law, even more so when human casualties arise as a result of
these events. International law is a rule or norms that regulate the rights and obligations of
international law subjects, namely states, international institutions and organizations, as well as
individuals in certain matters.
This armed conflict or war must be avoided as a form of problem solving.But efforts to
avoid an armed conflict on this earth is something that is impossible.Thus, in order to reduce the
various sufferings caused by this conflict, an agreement was made in the form of conventions and
international agreements governing war.This law used to be known as the law of war and is now
better known as International Humanitarian Law.
Humanitarian Law, as a branch of Public International Law, is not widely known by the
public. Likewise, the name causes a lot of confusion because it is a bit misleading. Not many
think that Humanitarian Law is a new name from the past known as the Laws of War (Laws of
War). All humans do not want war or conflict itself to occur around us, but there are many factors
that cause this to happen even though mankind in the world has made various efforts to minimize
the occurrence of war or armed conflict, one of which is realized by creating a group of people.
legal regulations that regulate the procedures for fighting, the protection of civilians and ethics in
war itself which is then embodied in a law known as International Humanitarian Law.

B.Research Question.
Does the Israeli conflict in Gaza, Palestine violate the rules that apply in International
Humanitarian Law?
 C.Discussion
The armed conflict between Israel and Palestine is a non-international armed conflict. The
armed conflict is non-international in nature because the parties involved in the ongoing conflict
between Israel and Palestine are the Israeli national army and the Hamas troops, which are not
actually armed forces. Palestinian officials. Considering the Palestinian territories at that time,
especially the Gaza Strip which was an Israeli occupied territory and Palestinians who were only
refugees due to the ongoing and ongoing war in the area. The establishment of the State of
Palestine has actually received international recognition from the United Nations and our country,
Indonesia. Despite being an Israeli occupation, Palestine has officially become a recognized State.
So this conflict is a conflict between countries. And given the many indications surrounding the
role of foreigners in this armed conflict, this conflict can be categorized as an armed conflict of an
international nature.
In May, 2021 Amnesty International said that the Israeli side had used excessive force and
force in the clashes in Jerusalem that injured hundreds of civilians and dozens of police. Amnesty
International also accused the Israeli security forces of carrying out unprovoked attacks against
peaceful protesters. The report comes as tensions are running high in Israeli-occupied Jerusalem,
with much of the conflict centered on the Al-Aqsa Mosque compound. Both at the Al-Aqsa
Mosque compound and at the site of other clashes in East Jerusalem, Israeli police used stun
grenades, rubber bullets, tear gas and skunk water cannon to respond to Palestinian protesters who
threw stones, bottles and fireworks at them.
Prior to this incident, in December 2008, where Israel carried out an attack known as
Operation Cast Lead, it clearly violated the principles contained in humanitarian law. The attack
which lasted for 22 days resulted in the victims being mostly civilians in the Gaza Strip. This is
contrary to the principles of humanity in the instruments of human rights law and humanitarian
law.
In the course of the conflict between Palestine and Israel, many basic principles of
international humanitarian law, especially human values which should be upheld, tend to be
ignored and violated. Where many civilians and civilian objects have become victims, such as the
22 days of demonstrations and Israeli aggression against Palestine which have resulted in the death
of the civilian population of around 1,434 people and approximately 5,000 people being injured.
This is contrary to the principle of humanity which is upheld in every provision of legal
instruments, both in the field of Human Rights and Humanitarian Law.
D.Conclusion
After reading and knowing about International Humanitarian Law in armed conflict and
reports of violations committed by Israel, it can be concluded that the Israeli side has violated and
ignored the principles contained in Humanitarian Law, which has made civilians and civilian
objects become victims of the armed conflict between Israel and Palestine.

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