What other charges could await generals?<\/p>\n
By David Jardine<\/p>\n
JAKARTA (JP): The call by an Indonesian legal body for the
\ncountry to allow its ranking military figures to be tried for
\ncrimes allegedly committed under their aegis in East Timor once
\nmore raises questions about possible charges. The officers,
\nincluding Gen. Wiranto, are alert to the danger and have taken on
\none of the erstwhile thorns in their side, Adnan Buyung Nasution
\nas counsel.<\/p>\n
In an earlier article by this writer it was suggested that
\npillage and wanton destruction, as defined by the Geneva
\nConventions of 1949 and the Additional Protocol of 1977, might be
\namong the charges laid against those involved in this year's
\nviolence in East Timor. The evidence of mass graves, which by
\ntheir very definition are burial sites where a multiplicity of
\nbodies are found, widens the range of charges that can plausibly
\nbe laid.<\/p>\n
What the Geneva Conventions and Additional Protocol I say is
\nof the first importance. In looking at how international
\nhumanitarian law might apply, we find that \"all cases of partial
\nor total occupation of the territory, even if the said occupation
\nmeets with no armed resistance\" is germane to East Timor. The
\ndefense may wish to argue that the term \"occupation\" does not
\napply but since Indonesia's self-styled \"integration\" of East
\nTimor was never recognized in international law, they would
\nappear to be on thin ice.<\/p>\n
Moreover, since the International Court of Justice has ruled
\nthat a state is responsible for the conduct of a faction in a
\ncivil war if that faction is a de facto agent of that state, the
\ndefense will be lightly armed if it attempts to argue that the
\nconflict was solely internal.<\/p>\n
As one international legal expert, Steven Ratnes, has argued,
\nalthough the Geneva Conventions \"create criminal liability only
\nfor violations committed in international armed conflicts, recent
\ndevelopments has shown the possibility of prosecuting war crimes
\nin internal conflicts without having to find some sort of linkage
\nto international war\". Both the Rwanda and the Yugoslav tribunals
\ngive jurisdiction over serious violations of international
\nhumanitarian law in internal conflicts.<\/p>\n
To return to what possible charges can be brought against the
\nprincipals in the recent East Timor mayhem, we can look to
\nArticle 3 common to the Four Geneva Conventions of Aug. 12, 1949.<\/p>\n
This stipulates the principle of hors de combat; \"persons
\ntaking no active part in the hostilities, including members who
\nhave laid down their arms and those placed hors de combat by
\nsickness, wounds, detention or any other cause, shall in all
\ncircumstances be treated humanely\". It then proscribes \"in
\nparticular murder of all kinds\".<\/p>\n
If the Suai church killings, which took the lives of three
\npriests and over 20 refugees under their protection, can be
\ndefinitely linked to the Indonesian Military (TNI) or any of
\nthose under their control and direction such as the Aitarak or
\nMerah Putih militia groups, then they can be found guilty of
\ngrave breaches.<\/p>\n
There is of course an absolute rule in international
\nhumanitarian law that states civilians must not be targeted for
\nmilitary attack in any circumstances. What this clearly and
\ninfallibly means is there are no mitigating circumstances. The
\nNuremberg Charter, which, of course, arose from the trials of
\nNazi war criminals, codified as crimes against humanity crimes
\nsuch as \"murder, extermination, enslavement, deportation and
\nother inhumane acts done against any civilian population\". The
\n\"any\" again rules out exemptions of whatever kind may be pleaded.<\/p>\n
Whether the prosecution may wish to argue that some or all of
\nthe East Timorese in camps across the border were actually
\ndeported remains to be seen. Certainly, however, a number of
\npress reports suggest that many are there against their will.<\/p>\n
Those gathering evidence must also look at the question of
\nextrajudicial executions that are by their very nature illegal
\nacts. In international humanitarian law these are defined as
\n\"willful killings without judicial process\". Such executions are
\nconsidered grave breaches of the Third Geneva Convention and
\napply among others to journalists. The killing of the Dutch
\njournalist Sander Thoenes may prove to have been just such an
\nextrajudicial execution.<\/p>\n
The defense will almost certainly mount arguments along the
\nlines of plausible deniability. The essence of the prosecution's
\njob is to establish responsibility. Whether the evidence is
\nsufficiently compelling or not depends to some degree on the
\nintimidation of witnesses and the kind of cooperation they are
\nwilling to give.<\/p>\n
The mill of justice will grind slowly but if any tribunal that
\nis set up is assiduous in collating and assessing evidence it
\nought at some stage to be able to pass sentence.<\/p>\n
The writer is a freelance journalist based in Jakarta.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/what-other-charges-could-await-generals-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }