The Implementation Of The First Pillar Of Responsibility To Protect In Indonesia: Critical Analysis Of Law On Social Conflict Management

Responsibility to Protect Principle (R2P) is intended to accomplish the humanitarian intervention principle which considered has a failure in many aspects. However, the existence of this principle still leaves worry, especially for a developing country, over manipulation and politics in its implementation. The formulated problems for this research are (1) how is the development of the R2P principle in International Law? (2) how is the implementation of the first pillar of R2P to prevent mass atrocities crime in the Indonesian government? The result shows that R2P gained more supports and was adopted in General Assembly resolution, completed with three pillars and six thresholds for its implementation. The implementation of the first pillar of R2P in Indonesia as a state responsibility to protect the society from mass atrocities crime has not been conducted properly. Although Indonesia already had a law on social conflict management, however, minimum law enforcement arrangement; high impunity culture, lack of knowledge about R2P, revocation of law on CTR, the impartiality of governmenttowards some majority groups potentially make the implementation of the first pillar of R2P in Indonesia will be failed.


Introduction
The notion of Responsibility to Protect (R2P) has appeared since the 1990s as a response to the failure of international society to prevent a humanitarian crisis in Rwanda, Bosnia, and other places. 1 The early concept of R2P had been delivered by Francis Deng, the representative member of the United Nations for Internal Refugee Problem. According to Deng, the sovereignty of a state is not the state's right to conduct anything according to its wishes without any international involvement, but state sovereignty has to be pledged based on the protection for its people who live in its area. State sovereignty must be built based on sovereignty as a responsibility concept. 2 Furthermore, the R2P concept also rises as a response to the failure of the humanitarian intervention principle, which existed first. 3  In 2009, Ban Ki-Moon compiles report entitled "Implementing the Responsibility to Protect", 6 which consist of three pillars to implement R2P principle: 7 1. The state responsibility to protect its people from genocide, war crimes, ethnic cleansing, a crime against humanity, and any kind of act which leads to these crimes. 8 The aim of the first pillar is to guarantee that the state protects its people from Mass Atrocity Crimes. 2. The commitment of the international community to help other statesin performing its responsibility to overcome humanitarian crises in its territory. 9 The aim of the second pillar is to create joined commitment and an active partnership between the international society and state. The joined forces can be done secretly or openly, and also in a form of training, education, assistance, mediation, and/or dialog. 10 3. Responsibility from every UN member to respond collectively on time and assertively when a state fails to give the protection needed.
The implementation of the first pillar of R2P is very crucial to be conducted by any state to prevent humanitarian intervention applied by international society because the state is considered incapable or unwilling to protect its people from mass atrocities crimes which raise humanitarian crisis in its territory. The adequate implementation of the first pillar can prevent mass atrocities crime.
Mass atrocities crime is usually started by a social conflict that grows into violence, widespread, and then mass atrocities crime becomes its peak. Social conflict can be triggered by injustice, poverty, social jealousy, and intolerance towards religion, race, customs, culture, and others. 11 Many studies had proven that a country consisting several of tribes, ethnicities, religions, and ideologies, which sealed by rigid class boundaries, has a big potential for conflict if those differences and gaps are not well-maintained. 12 Therefore, conflict study becomes the main issue in Indonesia through various events of violence either in ethnicity, religion, and separatism. 13 Some widespread social conflicts become atrocities crime and seize public attention in Indonesia, such as the suspected massacre of hundreds of people 8 David Scheffer, "Atrocities Crimes Framing the Responsibility to Protect", 40 Case W. Res. J. Int'l L. 111, 2007-2008 The four of crimes called as mass atrocities crimes 10 Michael Small, "An Analysis of the responsibility to Protect Program in Light of the Conflict in Syria", 13 Wash. U. Global Stud. L. Rev. 179, 2014, p. 183 11 St. Aisyah BM, "KonflikSosial Dalam Hubungan Antar Umat Beragama", Jurnal Dakwah Tabligh, Vol. 15, No. 2, December 2014 Sefriani. The Implementation Of The First Pillar...5

Objective Research
This research is intended to analyze the development of R2P in international law and the implementation of the first pillar of R2P by the Indonesian Government in-depth.

Research Methods
This research isnormative legal research which usesa conceptual, historical, and comparative approach. The result of this study is presented in descriptiveanalytic.

Chronology of R2P in international Law
During 1990-1994, the Security Council of United Nations issued twice as many resolutions in the history of the United Nations' long journey 15 as a response against threat towards international peace based on Chapter VII of the United Nations Charter which widens prior to humanity's problem. 16  In its progress, R2P gains much more support from the international society.
The General Assembly of United Nations finally adopts G.A. Res. 63/308 which reconfirmed the principles of the United Nations, the importance of prevention towards serious crime, and the responsibility of international society to hold state's accountability for committing such offenses. However, adopting the resolution does not directly create the R2P law and does not make it a legally binding norm tointernational society. Its status as a legal principle must be regarded. 24 According to Muladi, R2P is not a law, but it is a norm or a set of principles which based on thought that sovereignty is actually not only a special right but also a responsibility to protect the people from mass atrocities; responsibility of the international society to provide international assistance and capacity building, also responsibility to interfere, which is the very last resort. 25 The framework of R2P from ICISS indeed has already given the most comprehensive approach towards humanitarian intervention compare to others. It also has given the framework for the implementation of the intervention from diplomatic sanction, economy, up tomilitary intervention as the last alternative. 26 R2P gives a set of clear guidelines or clearer code of conduct to determine when and how an intervention is done, which covers the stage of "to prevent, to react, and to build". 27 Moreover, according to ICISS, the justification of military operation in the implementation of R2P must comply with the threshold that military invasion should be based on: 28 a. just cause is a courteous reason. It has to be proven by an extraordinary level of human suffering, loss of lives in massive scale, which is usually called genocide or ethnic cleansing which can be done by forced evictions, terror, or rape, 29 either being done the state directly or even because of the failure of the state to stop it. 30 b. right intensión isthe right course that the intervention is being done for one specific reason, which is to prevent or stop human suffering. c. the final resort is the last stage that is being reinforced because all of the peace methods proposed, either through diplomacy or non-military, have failed. d. legitimate authority is the legitimacy of authority from the Security Council of the United Nations, can be obtained directly from them or asked the Secretary-General to conduct the authority under article 99 UN Charter. If the authorization fails to be obtained, there are other two alternatives. The first alternative is through the United Nations General Assembly, who conduct emergency session-based "Uniting for Peace" procedure and gaining 2/3 affirmative votes from all the United Nations' member. The second alternative is through a regional organization to get authorization from the Security Council based on Chapter VII UN Charter. 31 e. proportional means is proportional means which is not excessive from the side of the device and aim respecting the humanitarian law. 25  international law, has been replaced by a collective security system designed and discussed in Chapter VII of the UN Charter. 47

Support Towards R2P
For States which support R2P such as Bosnia Herzegovina, Columbia, France, Gabon, Germany, Nigeria, Portugal, the United Kingdom, and the United States, 48 the sovereignty principle of state must be re-conceptualized. What is inherent in state sovereignty is about accountability and responsibility to the vulnerable population. 49 The R2P is not another name of humanitarian intervention. The R2P has three stages. These stages are the responsibility of the states to prevent, react, and rebuild when confronted with mass atrocities. These three stages can be conducted by using many methods, such as education, diplomacy, sanctions, and etc. 50 The R2P is in line with one of four UN's goals which named as to promote and protect human rights. 51 The R2P is also in line with the development of International Human rights law which focuses more onthe human rights problem as it becomes the world's center of attention. This is proven by the increase of instruments in International Human Rights law. It is quite unfair to blame the R2P principle in the case of the US's attacks towards Iraq, considering that in this case, there has been a misuse of the R2P principle. If the parameter of R2P is implemented, then clearly the attack cannot be justified legally.
Humanitarian intervention cannot be separated from R2P. R2P has humanity goals and contains the intervention aspect within it. On the other hand, humanitarian intervention cannot be conducted without responsibility.
Furthermore, it is aimed to protect the civil society who suffers violation in the territory of the target state. R2P and humanitarian intervention involve military intervention as the last alternative and in a very exceptional situation. Besides that, both of the matters also face a similar dilemma in regard to sovereignty 47 W. Michael Reisman, "Criteria for the Lawful Use of Force in International Law", 10 Yale J. Int 'l L. 279, 1985, p , 10 SYBIL 199, 2006, p. 199 violence which is up to 22%. 58 The dominant issues from communal violence are ethnic, religion and migration which caused two-third of the casualty. In other words, it also contributes around 52% of the total casualty in social violence. 59 The previous research concerning social violence patterns can be made as a lesson, so a similar incident will not occur in the future. When human rightsare protected, the rule of law is conducted well, good governance is applied, and mass violence can be prevented. Therefore, the effort of providing and streng However, from the terms: "conflict and/or physical contact with violence", "huge impact", "insecurity", "social disintegration", "disturbing the national stability", it can be concluded that types of social violence such as communal violence, separatist violence, state-community violence, and industrial relations related violence as mentioned before should be included in that definition. This is because, when social conflict cannot be overcome, it can spread become social violence even mass atrocities crime that potentially caused insecurity, social disintegration, disturbing national stability and humanity crises. 64 SCM based on Law Number 7 of 20 12 and Government Regulation Number 2 of 2015 covered: Conflict Prevention, Conflict Termination, and Post-conflict Recovery. 65 Based on the R2P concept, conflict management in the Indonesian law instrument is aligned with the state's responsibility towards the first pillar of R2P, which is to prevent, to re-act and to build. It is confirmed in the common clarification of SCM Law that one of the philosophy of this Law is a form of state'sresponsibility to give protection, progress, enforcement, and fulfillment of human right through the effort of creating a safe, harmonious, peaceful and prosper environment, as a form of the individual right for protection of oneself, family, honor, dignity and personal belonging, and also the right to receive safety and protection from threat of fear. Free from fear is a guarantee towards the right to have a safe, harmonious, peaceful, fair, and prosperous life. 66 In addition, there is one sociological argument in making this Law that is Indonesia still does not have a certain form of SCM which is comprehensive, integrative, effective, efficient, accountable, transparent, and right on target based on dialogical and peaceful approach. 67 Conflict Management which exists up until now is sectoral and reactive, moreover, it is still incompatible with the state administration system. 68 Conflict Prevention based on Law on SCM is being conducted through several efforts, such as maintaining the harmony of society, developing a peaceful This case started when unknown persons killing two policemen and a security guard, and set fire to shopsat the Abepura market at 7 December 2000. In response, a group of riot police (Brimob) committed repression against studentsat Ninmin dormitory and conducted similar operations in four other student residential areas in the Jayapura area, National commission on Human rights (KOMNAS HAM) in its report on 20 April 2001 confirmed that there was crimes against humanity at Abepura. Torture, summary executions, assault on the basis of gender, race and religion, arbitrary detention and violation of property rights had been committed in Abepura as part of a systematic and widespread attack. See Suzannah Linton, supra note 94 at 209 by the Attorney General under the Law on Human Rights Courts. However, only two of the recommended twenty-five had been tried for crimes against humanity before the Human Rights Court at Makassar in 2004. Finally, the accused were acquitted of the crimes against humanity charges laid against them, and the claim of compensation filed by the victims was also dismissed. 79 These conditions are certainly potentially causing dissatisfaction for both victims and communities that can trigger mass atrocities crime. According to Ignas Kleiden no changes in Indonesia before and after the reformation era. 80 Political stability takes precedence over efforts to uphold law and justice. For example, it is still very difficult to hold the accountability of former or who are still active as members of the Indonesian army forces against human rights violations in the past such as in the case 1965, Aceh, Tanjung Priok, May 1998, etc.
Those people even still have a very strategic political position at the national level, so that efforts to take legal action will be interpreted as an act of destabilizing national political stability. It is assumed will produce strong political resistance from military groups. 81 The minimum law enforcement in law and government regulation on SCM becomes a huge question because one of the forms of social conflict management is prevention and settlement social conflict which running well. Prevention and settlement of mass atrocities crime can be conducted by enforcing the law well, which is giving justice to all parties, including giving sanction to all perpetrators of mass atrocities, without discrimination of who is the person and what the position that the person holds in the government. 82 The minimum law enforcement arrangements in Law and Government Regulation on SCM seems to strengthen the high impunity culture, and also the lack of politic willingness to conduct the first pillar of R2P well. This conditions potentially triggers other violence in the society, because the perpetrator feels safe to conduct that violence. 79 id at 104 80 The reformation era began since the fall of Soeharto, who has been in power for 32 years as president of Indonesia (1966Indonesia ( -1998 81 Daniel Hutagalung, "Negara danPelanggaran HAM Masa Lalu:TuntutanPertanggungjawaban versus Impunitas" (State and human right violation in the past: claim of responsibility versus impunity), Dignitas, Vol. Furthermore, the lack of knowledge about R2P, the impartiality of government towards some majority groups, makesthe implementation of the first pillar of R2P more difficult. 83 To assure that the R2P values can be implemented well in Indonesia, still needed legal reform and increased public awareness and capacityof the importance of R2P applied in Indonesiaon the basis of the constitutionality of R2P values in the philosophy of the Indonesian nation.

1.
Regardless of having some flaws in its development, R2P has gained more support from International society. R2P principle is more complete than the humanitarian intervention principle. Having three pillars, three sections of implementation and six parameters thresh hold situation, R2P is ready to be conducted.
2. The implementation of the first pillar of R2P in Indonesia has not been conducted well. The challenges are minimum law enforcement arrangements on SCM law especially when social conflict widespread becomes mass atrocities crime, the high impunity culture, and also the lack of politic willingness to conduct the first pillar of R2P well. The lack of knowledge about R2P, the impartiality of government towards some majority groups, makesthe implementation of the first pillar of R2P more difficult. Furthermore, the revocation of Law number 27 of 2004 on CTR by Constitutional Court support legitimizes impunity culture and potentially causes new social conflict in the society which also potentially widespread become mass atrocities crime.