Not many choices left for Wiranto over indictment

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."