I would like to ask about the hostage-taking case of a New Zealand pilot by separatist groups in Papua. Is there a law that regulates hostages by separatist groups or armed groups? Are these armed groups terrorists, and which country is responsible for this case?
DAFTAR ISI
INTISARI JAWABAN
Hostage-taking comes from the word hostage, which means a person who is held captive as collateral. Hostage-taking is fundamentally different from kidnapping because hostage-taking exposes the victims. The hostage will be released if the hostage-taker's demands are met.
According to our research, there are no legal provisions in Indonesia that specifically regulate the crime of hostage-taking. So, can hostage-taking be categorized as an act of terrorism? What are the elements of terrorism?
Please read the review below for a further explanation.
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Definition of Hostage Taking Crime
Before answering your question, we should first understand what is meant by hostage-taking crime, which comes from the word hostage. According to Kamus Besar Bahasa Indonesia(“KBBI”) a.k.a. official dictionary of the Indonesian language, “sandera” or hostage or is a person who is held captive as collateral.
Hostage-taking is fundamentally different from kidnapping, as hostage-taking exposes the victim. The hostage will be released if the hostage-taker's demands are met.[1]
Meanwhile, according to Sunardi (et.al) in a book entitled Terorisme dalam Perspektif Politik Hukum Pidana Internasional, hostage-taking crimes are another common form of terrorist activity. Terrorists kidnap, threaten to kill, or injure innocent citizens to pressure a third party, in this case, a state, government organization, international organization, person, or group of people, to perform or not to perform an action as an explicit or implicit condition for the release of hostages (p. 278).
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According to our research, there is no law in Indonesia that specifically regulates the crime of hostage-taking. However, it is important to note that in addition to bombing, blasting, murder, and ambush, hostage-taking is also one of the forms of physical terrorism threats.[2]
In relation to terrorism, Indonesia has laws that regulate terrorism crimes such as Law 15/2003 which has been amended by Law 5/2018 and Law 9/2013.
So, is hostage-taking by armed groups considered a terrorism threat in Indonesia? Here is the explanation.
Armed Criminal Group = Terrorist?
The term 'terrorism' comes from the English word terror, or terrere in Latin, which means to make tremble or thrill.[3] According to A.C. Manullang, terrorism is a way to seize power from other groups, triggered by religious, ideological, and ethnic conflicts and economic disparities, as well as the blockage of people's communication with the government, or because of separatism and fanaticism ideology.[4]
Furthermore, James Adams explained that terrorism involves groups that seek to subvert certain regimes, to correct group/national grievances, or to undermine the existing political system.[5]
The crime of terrorism, in addition to various other forms of radicalism, is a crime classified as an extraordinary crime. Quoted from the article What is Extraordinary Crime and the Examples, extraordinary crime is a crime committed with the intention of eliminating human rights and becomes the jurisdiction of international criminal justice, and the death penalty can be imposed on the perpetrators of these crimes.
In addition, terrorism is a crime against humanity that is strongly condemned by every nation in the world.[6]
This definition is in line with the definition of terrorism stipulated in Article 1 number 2 Law 5/2018, namely:
Terrorism is an act that uses violence or threats of violence that creates an atmosphere of terror or fear on a widespread basis, which can cause mass casualties, and/or cause damage or destruction to strategic vital objects, the environment, public facilities, or international facilities with ideological, political, or security disturbance motives.
Then, the separatist group or armed group that you are referring to, we assume is the Kelompok Kriminal Bersenjata ("KKB") which in this case is in Papua. As explained above, hostage-taking is a form of terrorism threat. However, in our opinion, further study is needed to determine whether KKB meets the characteristics and elements of terrorism.
The elements of the crime of terrorism can be found in Article 6 to Article 19 Law 15/2003 jo. Law 5/2018. From the many definitions that have been explained, there are at least several characteristics of acts of terrorism, namely:[7]
there is a plan to carry out the act;
committed by a certain group;
using violence;
causing mass civilian casualties with the intention of intimidating the government;
carried out to achieve the killing of certain goals of the perpetrator, which can be social, political, or religious motives;
causing damage or destruction to vital objects.[9]
For this reason, the government has categorized the KKB as a terrorist group. The statement of the KKB Papua as terrorists was announced by the government through an official statement by the Coordinating Minister for Political, Legal, and Security Affairs, Mahfud MD on Thursday, April 29, 2021. In essence, the organization and members of the KKB are categorized as a terrorist group because they have committed massive violence and created an atmosphere of widespread terror against civil society in Papua driven by political motives, namely breaking away from the Republic of Indonesia. Thus, KKB Papua is indicated to fulfill the elements of a terrorist offense.[10]
According to Liona Nanang Supriatna, Lecturer and Dean of the Faculty of Law at Parahyangan Catholic University, it should be underlined that the issue of KKB Papua is not an International Armed Conflict (“IAC”) or Non-International Armed Conflict (“NIAC”), therefore the law that can be applied to the issue is purely criminal law applicable in Indonesia.
In addition, because this act of terrorism occurs in the territory of Indonesia, then based on the territorial principle of criminal law, every state has jurisdiction over crimes committed within its territory.[11] This means that the criminal laws in Indonesian legislation apply to everyone who commits a criminal offense within the territory of Indonesia, including acts of terrorism.[12] Therefore, acts of terrorism that occur in Indonesia are subject to the laws and regulations in Indonesia and are the responsibility of Indonesia.
The responsibility of Indonesia has also been affirmed in Article 28I section (4) 1945 Constitution, namely the protection, advancement, enforcement, and fulfillment of human rights is the responsibility of the state, especially the government. Based on this article, it can be interpreted that the Indonesian constitution provides protection to everyone, including Foreign Citizens, in this case, foreign pilot held hostage by the KKB Papua.
So, what are the criminal sanctions that can be imposed on perpetrators of terrorism? According to Article 6 Law 5/2018, every person who deliberately uses violence or threats of violence that creates an atmosphere of terror or fear of people on a widespread basis, causing mass casualties by depriving freedom or loss of life and property of others, or causing damage or destruction to strategic vital objects, the environment or public facilities or international facilities shall be punished with imprisonment for a minimum of 5 years and a maximum of 20 years, life imprisonment, or the death penalty.
Furthermore, Liona explained that on the issue of hostage-taking of foreigners by KKB in Papua, it is necessary to apply Indonesian law strictly, accompanied by economic, cultural, and religious approaches, and carried out with the principles of human rights.
In conclusion, in Indonesia, there are no legal provisions that specifically regulate hostage-taking. However, it is important to note that hostage-taking is one of the physical forms of terrorism.
Then, since the act of terrorism occurred in the territory of Indonesia, based on the territorial principle of criminal law, the Indonesian government has jurisdiction and is responsible for the crime of terrorism. Indonesia's responsibility in providing protection to everyone including foreigners has also been regulated in the constitution. Therefore, based on Article 6 Law 5/2018, a person who commits a crime of terrorism is punishable by imprisonment for a minimum of 5 years and a maximum of 20 years, life imprisonment, or the death penalty.
These are the answers we can provide, we hope you will find them useful.
Muhammad Ali Zaidan. Pemberantasan Tindak Pidana Terorisme (Pendekatan Kebijakan Kriminal). Jurnal FH UNNES, Vol. 3, No. 1, 2017;
Muhammad Hafiz dan Surya Muki Pratama. Tinjauan Hukum Penetapan Kelompok Kriminal Bersenjata Papua Sebagai Teroris Dalam Perspektif Hukum Pidana Nasional. Jurnal Hukum Mimbar Justitia, Vol. 7, No. 1, 2021;
Muhammad Hatta. Kejahatan Luar Biasa (Extra Ordinary Crime). Sulawesi: Unimal Press, 2019;
Sefriani. Hukum Internasional: Suatu Pengantar. Jakarta: PT RajaGrafindo Persada, 2010;
Sunardi (et.al). Terorisme dalam Perspektif Politik Hukum Pidana Internasional. Tangerang: Nirmana MEDIA, 2017;
Tim Pokja Modul Pembinaan Kesadaran Bela Negara. Pencegahan daan Penanggulangan Terorisme dalam Gerakan Nasional Bela Negara. Jakarta: Kementerian Pertahanan Republik Indonesia, 2019.
NB:
We have conducted an interview with Lecturer and Dean of the Faculty of Law, Parahyangan Catholic University, Dr. iur. Liona Nanang Supriatna, S.H., M.Hum., on Thursday, May 25, 2023, at 19.30 West Indonesian Time (zone).
[1] Tim Pokja Modul Pembinaan Kesadaran Bela Negara. Pencegahan daan Penanggulangan Terorisme dalam Gerakan Nasional Bela Negara. Jakarta: Kementerian Pertahanan Republik Indonesia, 2019, p. 15.
[2] Tim Pokja Modul Pembinaan Kesadaran Bela Negara. Pencegahan daan Penanggulangan Terorisme dalam Gerakan Nasional Bela Negara. Jakarta: Kementerian Pertahanan Republik Indonesia, 2019, pp. 14-15.
[3] Angel Damayanti (et.al). Perkembangan Terorisme di Indonesia. Jakarta: Badan Nasional Penanggulangan Terorisme Republik Indonesia, 2013, p. 5.
[4] Angel Damayanti (et.al). Perkembangan Terorisme di Indonesia. Jakarta: Badan Nasional Penanggulangan Terorisme Republik Indonesia, 2013, p. 6.
[5] MD. Shodiq. Paradigma Deradikalisasi dalam Perspektif Hukum. Jakarta: Pustaka Harakatuna, 2018, p. 79.
[6] Muhammad Ali Zaidan. Pemberantasan Tindak Pidana Terorisme (Pendekatan Kebijakan Kriminal). Jurnal FH UNNES, Vol. 3, No. 1, 2017, p. 150.
[7] Muhammad Hatta. Kejahatan Luar Biasa (Extra Ordinary Crime). Sulawesi: Unimal Press, 2019, p. 87.
[8] Sunardi (et.al). Terorisme dalam Perspektif Politik Hukum Pidana Internasional. Tangerang: Nirmana MEDIA, 2017, p. 95.
[9] Sunardi (et.al). Terorisme dalam Perspektif Politik Hukum Pidana Internasional. Tangerang: Nirmana MEDIA, 2017, p. 95.
[10] Muhammad Hafiz dan Surya Muki Pratama. Tinjauan Hukum Penetapan Kelompok Kriminal Bersenjata Papua Sebagai Teroris Dalam Perspektif Hukum Pidana Nasional. Jurnal Hukum Mimbar Justitia, Vol. 7, No. 1, 2021, pp. 89-95.
[11] Sefriani. Hukum Internasional: Suatu Pengantar. Jakarta: PT RajaGrafindo Persada, 2010, pp. 238-239.
[12] Sunardi (et.al). Terorisme dalam Perspektif Politik Hukum Pidana Internasional. Tangerang: Nirmana MEDIA, 2017, p. 51.
