JP/3/INSIGHT6 (insite /already from chdesk)

JP/3/INSIGHT6 (insite /already from chdesk)

Gen. Wiranto has no wrong choice

Munir and
Rachland Nashidik
Indonesian Human Rights Watch
(IMPARSIAL)
Jakarta

The Serious Crime Unit (SCU) of the East Timor General
Prosecutor's Office has indicted Gen. (ret.) Wiranto because,
based on the principle of command responsibility, the general is
responsible for the crimes against humanity, in the form of
systematic murders, deportations and torture, that took place in
East Timor in 1999. The charge dossier was registered with the
Special Panel for Serious Crimes at the Dili District Court on
Feb. 24.

The SCU also issued an arrest warrant for the former minister
of defense/Indonesian Military (TNI) chief, along with six other
senior officers.

The decision quickly sparked controversy. According to
Minister of Foreign Affairs Hassan Wirayuda, the Dili District
Court is not an "international tribunal", therefore it has no
jurisdiction or authority to arrest other countries' citizens.
The minister also emphasized that Indonesian citizens could only
be tried by an Indonesian court. How should we interpret this?

It is true, in issuing the charges and arrest warrant against
Gen. Wiranto, the SCU was practicing territorial jurisdiction
(because the crimes occurred in East Timor), or passive
jurisdiction (because the victims were citizens of East Timor).

It is also true that for a very simple political reason, i.e.
that Gen. Wiranto resides in and is protected by Indonesia, it
will be very difficult to execute the arrest warrant. Do not
imagine that Jakarta will extradite the general to Dili,
particularly given the absence of an extradition treaty between
Indonesia and East Timor.

However, this is not the real problem. What we must notice is
the consequences of the effectiveness of universal jurisdiction
in prosecuting crimes against humanity -- extraordinary crimes
that those found guilty of committing are declared "enemies of
mankind", or hostis humanis generis.

In general, universal jurisdiction is the jurisdiction of a
state to prosecute and punish certain crimes -- among other
things piracy, slavery, war crimes and crimes against humanity --
whoever committed the crimes and wherever the crimes were
committed, without taking into account territorial problems and
nationality.

The world community recognized the principle of universal
jurisdiction through multilateral agreements after World War II,
especially in the 1949 Geneva convention. The multilateral
agreements oblige all states to try or extradite suspects in
crimes against humanity, thereby converting their national
jurisdiction into universal jurisdiction (aut dedere aut
judicare).

This obligation is regulated and empowered by, among other
things, the "principles of international cooperation in the
detection, arrest, extradition and punishment of persons guilty
of war crimes and crimes against humanity", which was adopted by
United Nations General Assembly's Resolution XXVIII on Dec. 3,
1973.

Therefore the following must be taken into account: there are
no more safe havens for anyone suspected of committing crimes
against humanity. Under the morals of universal jurisdiction, the
indictment and arrest warrant issued by Dili for Wiranto will
become the legal foundation for UN members to arrest, prosecute
and, if possible, extradite the suspect.

Can the legal process, which was initiated by the SCU, be
stopped by a political decision by the leaders of the new
republic? Wasn't it President Xanana Gusmao himself who said
court was not the priority for East Timor? From New York, the
spokesman for the UN secretary-general, Fred Eckhard, also
emphasized that indictment was issued by the Dili Prosecutor's
Office, not by the UN.

Of course, Jakarta can pressure Dili. However, although "for
the sake of good relations between the two countries", the
leaders of East Timor are ready to negotiate, the situation will
not be easy. East Timor Attorney General Longuinhos Monteiro has
emphasized that he cannot retract the indictment unless there are
major changes to the substance of indictment.

There are more serious problems. Although there is now an
attempt to obscure its role, the UN's role in the indictment of
Gen. Wiranto was very magnanimous. What the UN currently is doing
in East Timor is clearly an experiment to internationalize
national courts, similar to what was to be tested in Cambodia in
the Khmer Rouge case.

Look at the following facts. The SCU was initially formed by
the United Nations Transitional Authority in East Timor (UNTAET),
based on UN Security Council Resolution No. 1272 on Oct. 25,
1999. UNTAET was dissolved after East Timor's independence. But
the existence of the SCU was maintained by UN Security Council
resolution No. 1410 on May 17, 2002, on the establishment of the
UN Mission of Support in East Timor (UNMISET).

After East Timor's independence, the SCU was placed under East
Timor's General Prosecutor's Office. Its head, Siri Frigaard, now
serves as East Timor's deputy attorney general. The mandate of
the unit, staffed mostly by international personnel, is clear: To
carry out investigations and indictments in cases of crimes
against humanity that occurred in East Timor between Jan. 1 and
Oct. 25, 1999.

Apart from the SCU, there is also the Special Panel for
Serious Crimes. Comprising two international judges and one
national judge, the UN-established panel has been placed under
the Dili District Court. The charge dossiers against Gen. Wiranto
was registered with this panel.

Conclusively, the SCU and the Serious Crimes Special Unit are
actually extensions of UN power, but they are under East Timor's
prosecutor's office and courts. The statement from the UN
secretary-general's spokesman must be understood from this point.

What does it mean? The final decision in the indictment of
Wiranto cannot be fully taken in Dili, but in New York and
Geneva. The question is, given the country's ongoing economic
crisis, does Jakarta have the energy and time to handle the extra
work of fighting this?

Whatever President Megawati Soekarnoputri's answer to this
question, one thing should be prevented: The completion of facts
proving that anything can become a decisive factor in Indonesia,
except the law and justice itself.

Meanwhile for Wiranto et al there are not many choices left
for them. They can fight this by going to the court in Dili as
noble knights, or they can choose to remain prisoners in their
own country for the rest of their lives -- and make Indonesia a
pariah state.

The decision is their own hands. However, for those who claim
to be patriots, the wisdom expressed by United States president
John F. Kennedy dozens of years ago should be remembered: "Do not
ask what your country can do for you, but ask what you can do for
your country."