Issues at play in Lumintang suit
Issues at play in Lumintang suit
By Rita Maran
JAKARTA (JP): The lawsuit brought against Lt. Gen. Johny
Lumintang in a United States court has become the subject of some
confusion in public discourse.
It would not be the first time that actions involving human
rights issues were -- whether innocently or intentionally --
intermingled with a range of private political and diplomatic
agendas.
It should be noted that this lawsuit against the former Army
deputy chief is not the first of its kind; however, while it is
still far from commonplace in the U.S., or indeed in any country,
we can be certain that it will not be the last of its kind.
At this early stage of development, before discussion of the
case becomes mired in extraneous issues, clarification of human
rights laws may help in laying an accurate foundation for future
consideration.
Furthermore, the public's right to know merits the beginning
of a dialogue on issues that will remain with us.
Bear in mind that coincidental with the Lumintang case in the
U.S., the procedures for dealing with military personnel alleged
to have committed violations in East Timor in 1999 are currently
under review in this country.
The issues are interrelated, involving as they do the emerging
basic right of people who have suffered and survived egregious
violations to have their voice heard not only in a medical
treatment center, but also in a public court of law.
To clarify a few points: the lawsuit is a private civil
action, brought against a member of the Indonesian Military who,
the accusers declare, is guilty of specific human rights abuses
in East Timor following the 1999 referendum.
The trial will continue in the United States. The U.S.
government is not a party to the suit. The basis of the suit
under U.S. law is the Alien Tort Claims Act, dating back to a
1789 civil code, along with the contemporaneous Torture Victim
Protection Act.
The legislation in question can be invoked only under
particular and relatively unusual circumstances. Recent actions
to bring former president Augusto Pinochet of Chile before a
relevant court in England or Spain, and separate but related
actions to bring former Chad leader Hissene Habre before a
relevant court in Senegal, have in common with the Lumintang case
a developing body of jurisprudence that holds torturers and
others accused of crimes against humanity to a different standard
of responsibility.
In such cases, the usual statute of limitations is lifted
concerning the length of lapsed time since the crime and the
location of the crime outside the country where the accused is located.
In the Indonesian case, the alleged crime involving torture
considers the torturer hostis humanis generis -- a term rarely in
use -- an "enemy of mankind".
Lawsuits falling under such legislation are not lightly
undertaken. In 1980, a precedent was established when a
Paraguayan family, the Filartigas, visiting New York City,
learned of the presence there of the Paraguayan police chief,
Pena-Irala, who had tortured the youngest member of the Filartiga
family to death in Asuncion.
The Filartiga family, represented by the Center for
Constitutional Rights, sued Pena-Irala, and won a judgment in
1980 based on the 1789 law outlawing torture.
Currently, the Center for Justice and Accountability, a San
Francisco-based human rights organization, along with the Center
for Constitutional Rights and a third party named James
Klimanski, are representing the East Timorese plaintiffs.
Over the past two years since its founding, the Center for
Justice and Accountability has helped plaintiffs bring three
similarly based complaints into U.S. courts on behalf of the
victims/survivors.
In the first of the cases, a Bosnian Serb is being sued by a
Bosnian; another case involves a Salvadoran being sued by a
Salvadoran; the third case involves a Chilean being sued by
a Chilean.
These civil suits continue at present in U.S. courts in
Georgia and Florida.
The overriding principle at stake here is not that
complicated. Quite straightforwardly, it concerns a basic human
value common to all religions and social communities -- respect
for the integrity of every human being.
Both sides -- the victim/survivor and the accused -- get to
address the issues in a court of law. The individuals on trial in
The Hague, in the International Criminal Tribunal for the former
Yugoslavia, and in Tanzania, in the International Criminal
Tribunal for Rwanda, constitute a prime example of rule of law in
practice.
No matter how lofty or low the person's standing in society,
whether president or peasant, commander or foot soldier, each
alleged wrongdoer can confront his accuser and mount a defense.
The rights of the person who has survived egregious
maltreatment and the rights of the defendant are, as they should
be, equally claimable.
Both have the right to seek access to justice, and we, the
public, have the corresponding duty to ensure even-handed
application of the law for redress of grievances.
Recognition of the violence committed and acknowledgement of
it by the community help furnish a link which the survivor can
grasp as he or she starts the long road back toward the life that
was broken.
The accused gets to speak in his or her own defense, whatever
the heinous acts committed. The men on trial in The Hague and in
Tanzania exemplify rule of law in practice.
No matter their position, each individual wrongdoer is openly
confronted by the victim/survivor and the voices of both are
heard.
In all these cases, the gravity of the violations is not in
doubt. It is here that the concept of universal jurisdiction
comes into play.
Universal jurisdiction brings justice into play in cases of
outstanding gross and systematic violations when wrongdoers might
find a way to escape justice outside the country where the
violation occurred. No matter where the enemy of mankind
relocates, there will be no safe haven.
The writer is a Fulbright Scholar at the University of
Indonesia and a board member of the San Francisco-based Center
for Justice and Accountability.