JP\/3\/INSIGHT6 (insite \/already from chdesk)<\/p>\n
Gen. Wiranto has no wrong choice<\/p>\n
Munir and
\nRachland Nashidik
\nIndonesian Human Rights Watch
\n(IMPARSIAL)
\nJakarta<\/p>\n
The Serious Crime Unit (SCU) of the East Timor General
\nProsecutor's Office has indicted Gen. (ret.) Wiranto because,
\nbased on the principle of command responsibility, the general is
\nresponsible for the crimes against humanity, in the form of
\nsystematic murders, deportations and torture, that took place in
\nEast Timor in 1999. The charge dossier was registered with the
\nSpecial Panel for Serious Crimes at the Dili District Court on
\nFeb. 24.<\/p>\n
The SCU also issued an arrest warrant for the former minister
\nof defense\/Indonesian Military (TNI) chief, along with six other
\nsenior officers.<\/p>\n
The decision quickly sparked controversy. According to
\nMinister of Foreign Affairs Hassan Wirayuda, the Dili District
\nCourt is not an "international tribunal", therefore it has no
\njurisdiction or authority to arrest other countries' citizens.
\nThe minister also emphasized that Indonesian citizens could only
\nbe tried by an Indonesian court. How should we interpret this?<\/p>\n
It is true, in issuing the charges and arrest warrant against
\nGen. Wiranto, the SCU was practicing territorial jurisdiction
\n(because the crimes occurred in East Timor), or passive
\njurisdiction (because the victims were citizens of East Timor).<\/p>\n
It is also true that for a very simple political reason, i.e.
\nthat Gen. Wiranto resides in and is protected by Indonesia, it
\nwill be very difficult to execute the arrest warrant. Do not
\nimagine that Jakarta will extradite the general to Dili,
\nparticularly given the absence of an extradition treaty between
\nIndonesia and East Timor.<\/p>\n
However, this is not the real problem. What we must notice is
\nthe consequences of the effectiveness of universal jurisdiction
\nin prosecuting crimes against humanity -- extraordinary crimes
\nthat those found guilty of committing are declared "enemies of
\nmankind", or hostis humanis generis.<\/p>\n
In general, universal jurisdiction is the jurisdiction of a
\nstate to prosecute and punish certain crimes -- among other
\nthings piracy, slavery, war crimes and crimes against humanity --
\nwhoever committed the crimes and wherever the crimes were
\ncommitted, without taking into account territorial problems and
\nnationality.<\/p>\n
The world community recognized the principle of universal
\njurisdiction through multilateral agreements after World War II,
\nespecially in the 1949 Geneva convention. The multilateral
\nagreements oblige all states to try or extradite suspects in
\ncrimes against humanity, thereby converting their national
\njurisdiction into universal jurisdiction (aut dedere aut
\njudicare).<\/p>\n
This obligation is regulated and empowered by, among other
\nthings, the "principles of international cooperation in the
\ndetection, arrest, extradition and punishment of persons guilty
\nof war crimes and crimes against humanity", which was adopted by
\nUnited Nations General Assembly's Resolution XXVIII on Dec. 3,
\n1973.<\/p>\n
Therefore the following must be taken into account: there are
\nno more safe havens for anyone suspected of committing crimes
\nagainst humanity. Under the morals of universal jurisdiction, the
\nindictment and arrest warrant issued by Dili for Wiranto will
\nbecome the legal foundation for UN members to arrest, prosecute
\nand, if possible, extradite the suspect.<\/p>\n
Can the legal process, which was initiated by the SCU, be
\nstopped by a political decision by the leaders of the new
\nrepublic? Wasn't it President Xanana Gusmao himself who said
\ncourt was not the priority for East Timor? From New York, the
\nspokesman for the UN secretary-general, Fred Eckhard, also
\nemphasized that indictment was issued by the Dili Prosecutor's
\nOffice, not by the UN.<\/p>\n
Of course, Jakarta can pressure Dili. However, although "for
\nthe sake of good relations between the two countries", the
\nleaders of East Timor are ready to negotiate, the situation will
\nnot be easy. East Timor Attorney General Longuinhos Monteiro has
\nemphasized that he cannot retract the indictment unless there are
\nmajor changes to the substance of indictment.<\/p>\n
There are more serious problems. Although there is now an
\nattempt to obscure its role, the UN's role in the indictment of
\nGen. Wiranto was very magnanimous. What the UN currently is doing
\nin East Timor is clearly an experiment to internationalize
\nnational courts, similar to what was to be tested in Cambodia in
\nthe Khmer Rouge case.<\/p>\n
Look at the following facts. The SCU was initially formed by
\nthe United Nations Transitional Authority in East Timor (UNTAET),
\nbased on UN Security Council Resolution No. 1272 on Oct. 25,
\n1999. UNTAET was dissolved after East Timor's independence. But
\nthe existence of the SCU was maintained by UN Security Council
\nresolution No. 1410 on May 17, 2002, on the establishment of the
\nUN Mission of Support in East Timor (UNMISET).<\/p>\n
After East Timor's independence, the SCU was placed under East
\nTimor's General Prosecutor's Office. Its head, Siri Frigaard, now
\nserves as East Timor's deputy attorney general. The mandate of
\nthe unit, staffed mostly by international personnel, is clear: To
\ncarry out investigations and indictments in cases of crimes
\nagainst humanity that occurred in East Timor between Jan. 1 and
\nOct. 25, 1999.<\/p>\n
Apart from the SCU, there is also the Special Panel for
\nSerious Crimes. Comprising two international judges and one
\nnational judge, the UN-established panel has been placed under
\nthe Dili District Court. The charge dossiers against Gen. Wiranto
\nwas registered with this panel.<\/p>\n
Conclusively, the SCU and the Serious Crimes Special Unit are
\nactually extensions of UN power, but they are under East Timor's
\nprosecutor's office and courts. The statement from the UN
\nsecretary-general's spokesman must be understood from this point.<\/p>\n
What does it mean? The final decision in the indictment of
\nWiranto cannot be fully taken in Dili, but in New York and
\nGeneva. The question is, given the country's ongoing economic
\ncrisis, does Jakarta have the energy and time to handle the extra
\nwork of fighting this?<\/p>\n
Whatever President Megawati Soekarnoputri's answer to this
\nquestion, one thing should be prevented: The completion of facts
\nproving that anything can become a decisive factor in Indonesia,
\nexcept the law and justice itself.<\/p>\n
Meanwhile for Wiranto et al there are not many choices left
\nfor them. They can fight this by going to the court in Dili as
\nnoble knights, or they can choose to remain prisoners in their
\nown country for the rest of their lives -- and make Indonesia a
\npariah state.<\/p>\n
The decision is their own hands. However, for those who claim
\nto be patriots, the wisdom expressed by United States president
\nJohn F. Kennedy dozens of years ago should be remembered: "Do not
\nask what your country can do for you, but ask what you can do for
\nyour country."<\/p>",
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