Issues at play in Lumintang suit<\/p>\n
By Rita Maran<\/p>\n
JAKARTA (JP): The lawsuit brought against Lt. Gen. Johny
\nLumintang in a United States court has become the subject of some
\nconfusion in public discourse.<\/p>\n
It would not be the first time that actions involving human
\nrights issues were -- whether innocently or intentionally --
\nintermingled with a range of private political and diplomatic
\nagendas.<\/p>\n
It should be noted that this lawsuit against the former Army
\ndeputy chief is not the first of its kind; however, while it is
\nstill far from commonplace in the U.S., or indeed in any country,
\nwe can be certain that it will not be the last of its kind.<\/p>\n
At this early stage of development, before discussion of the
\ncase becomes mired in extraneous issues, clarification of human
\nrights laws may help in laying an accurate foundation for future
\nconsideration.<\/p>\n
Furthermore, the public's right to know merits the beginning
\nof a dialogue on issues that will remain with us.<\/p>\n
Bear in mind that coincidental with the Lumintang case in the
\nU.S., the procedures for dealing with military personnel alleged
\nto have committed violations in East Timor in 1999 are currently
\nunder review in this country.<\/p>\n
The issues are interrelated, involving as they do the emerging
\nbasic right of people who have suffered and survived egregious
\nviolations to have their voice heard not only in a medical
\ntreatment center, but also in a public court of law.<\/p>\n
To clarify a few points: the lawsuit is a private civil
\naction, brought against a member of the Indonesian Military who,
\nthe accusers declare, is guilty of specific human rights abuses
\nin East Timor following the 1999 referendum.<\/p>\n
The trial will continue in the United States. The U.S.
\ngovernment is not a party to the suit. The basis of the suit
\nunder U.S. law is the Alien Tort Claims Act, dating back to a
\n1789 civil code, along with the contemporaneous Torture Victim
\nProtection Act.<\/p>\n
The legislation in question can be invoked only under
\nparticular and relatively unusual circumstances. Recent actions
\nto bring former president Augusto Pinochet of Chile before a
\nrelevant court in England or Spain, and separate but related
\nactions to bring former Chad leader Hissene Habre before a
\nrelevant court in Senegal, have in common with the Lumintang case
\na developing body of jurisprudence that holds torturers and
\nothers accused of crimes against humanity to a different standard
\nof responsibility.<\/p>\n
In such cases, the usual statute of limitations is lifted
\nconcerning the length of lapsed time since the crime and the
\nlocation of the crime outside the country where the accused is located.<\/p>\n
In the Indonesian case, the alleged crime involving torture
\nconsiders the torturer hostis humanis generis -- a term rarely in
\nuse -- an \"enemy of mankind\".<\/p>\n
Lawsuits falling under such legislation are not lightly
\nundertaken. In 1980, a precedent was established when a
\nParaguayan family, the Filartigas, visiting New York City,
\nlearned of the presence there of the Paraguayan police chief,
\nPena-Irala, who had tortured the youngest member of the Filartiga
\nfamily to death in Asuncion.<\/p>\n
The Filartiga family, represented by the Center for
\nConstitutional Rights, sued Pena-Irala, and won a judgment in
\n1980 based on the 1789 law outlawing torture.<\/p>\n
Currently, the Center for Justice and Accountability, a San
\nFrancisco-based human rights organization, along with the Center
\nfor Constitutional Rights and a third party named James
\nKlimanski, are representing the East Timorese plaintiffs.<\/p>\n
Over the past two years since its founding, the Center for
\nJustice and Accountability has helped plaintiffs bring three
\nsimilarly based complaints into U.S. courts on behalf of the
\nvictims\/survivors.<\/p>\n
In the first of the cases, a Bosnian Serb is being sued by a
\nBosnian; another case involves a Salvadoran being sued by a
\nSalvadoran; the third case involves a Chilean being sued by
\na Chilean.<\/p>\n
These civil suits continue at present in U.S. courts in
\nGeorgia and Florida.<\/p>\n
The overriding principle at stake here is not that
\ncomplicated. Quite straightforwardly, it concerns a basic human
\nvalue common to all religions and social communities -- respect
\nfor the integrity of every human being.<\/p>\n
Both sides -- the victim\/survivor and the accused -- get to
\naddress the issues in a court of law. The individuals on trial in
\nThe Hague, in the International Criminal Tribunal for the former
\nYugoslavia, and in Tanzania, in the International Criminal
\nTribunal for Rwanda, constitute a prime example of rule of law in
\npractice.<\/p>\n
No matter how lofty or low the person's standing in society,
\nwhether president or peasant, commander or foot soldier, each
\nalleged wrongdoer can confront his accuser and mount a defense.<\/p>\n
The rights of the person who has survived egregious
\nmaltreatment and the rights of the defendant are, as they should
\nbe, equally claimable.<\/p>\n
Both have the right to seek access to justice, and we, the
\npublic, have the corresponding duty to ensure even-handed
\napplication of the law for redress of grievances.<\/p>\n
Recognition of the violence committed and acknowledgement of
\nit by the community help furnish a link which the survivor can
\ngrasp as he or she starts the long road back toward the life that
\nwas broken.<\/p>\n
The accused gets to speak in his or her own defense, whatever
\nthe heinous acts committed. The men on trial in The Hague and in
\nTanzania exemplify rule of law in practice.<\/p>\n
No matter their position, each individual wrongdoer is openly
\nconfronted by the victim\/survivor and the voices of both are
\nheard.<\/p>\n
In all these cases, the gravity of the violations is not in
\ndoubt. It is here that the concept of universal jurisdiction
\ncomes into play.<\/p>\n
Universal jurisdiction brings justice into play in cases of
\noutstanding gross and systematic violations when wrongdoers might
\nfind a way to escape justice outside the country where the
\nviolation occurred. No matter where the enemy of mankind
\nrelocates, there will be no safe haven.<\/p>\n
The writer is a Fulbright Scholar at the University of
\nIndonesia and a board member of the San Francisco-based Center
\nfor Justice and Accountability.<\/p>",
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