What constitutes a war crime?

By David Jardine

JAKARTA (JP): As the United Nations Human Rights Commissioner, the straight-talking Mary Robinson, goes about her work of evaluating any evidence of war crimes and crimes against humanity committed in East Timor it is reasonable to ask just what such crimes they might be. Given the slowness of the proceedings at the Yugoslavia War Crimes Tribunal in The Hague, a serious attempt at clarity is of the essence.

The idea of a war crime or crime against humanity is a modern one, which grew out of the same 19th century sensibility that created the International Red Cross and a recognition that however difficult it may be to prevent wars, a civilized world cannot simply allow a situation where anything goes. In premodern times a (Mongol conqueror) Tamurlaine could lay waste to life and property with impunity. Modern man believes and hopes he has moved on. The prosecutors in war crimes tribunals such as those looking into the former Yugoslavia believe that "the propensity for ethnic mayhem is neither endemic nor inevitable". They put themselves between the random and the inevitable in the belief that lasting judgments can be made that apply to all societies everywhere.

International law is nothing if not universalist in its aims and design. However, if it is to work in the context of the crimes being investigated in The Hague it must have an empirical applicability. Richard Goldstone, the original prosecutor of Balkan war criminals was quick to point out that it is only by not falling into the trap of applying collective guilt to all Serbs or all Croats (or all Indonesians) that justice can be served. "Such interethnic violence usually gets stoked by specific individuals intent on immediate political or material advantage, who then call forth the legacies of earlier and previously unaddressed grievances ... It is they, not the group as a whole, who need to be held to account."

This would establish from the outset the important fact that were sufficient evidence to be presented of either war crimes or crimes against humanity having been committed in East Timor it would not be Indonesia that would go on trial -- contrary to the beliefs of inflamed nationalists to that effect -- but individuals who organized, directed and carried out those crimes.

Again, contrary to the wishes and beliefs of some nationalists and certainly of New Order "integration" propaganda, Indonesia's presence in the former Portuguese colony was never recognized by the UN (Australia's exceptional role here provides a dark and bitter irony as well as a commentary on the ultra-nationalist response in Indonesia to its leadership of the International Force in East Timor, or Interfet. This, however, will have no legal bearing whatsoever).

Indonesia was therefore an occupying power but one which by virtue of the international political process was held responsible for East Timor until the arrival of Interfet at the behest of the UN Secretary-General, Kofi Annan. Section III of the Fourth Geneva Convention of 1949 applies to occupying powers, which are defined under the laws of war as those controlling territory which is not yet legally theirs.

Under Section III, an occupying power many institute provisions for "the orderly government of the territory". That the Indonesian Military (TNI) as the arm of the occupying power quite palpably failed in this regard -- we should here confine ourselves to the events of 1999 following then President B.J. Habibie's surprise "offer" of wide-ranging autonomy and up to the final departure of Indonesian security forces -- is not in question. The breakdown in order as manifested in the wide- ranging attacks on persons and property by the prointegration militia is not a moot point.

This breakdown took the form of pillage, among which Telkom and other government buildings were torched and clinics trashed. Pillage is strictly forbidden by the Geneva Convention, and among the most obvious cases that may be cited is the destruction of Bishop Carlos Felipe Ximenes Belo's diocesan residence by troops of Battalions 744 and 745 of the Indonesian army.

Even if we go back to the 1907 Hague Convention we will find, "The pillage of a town or place, even when taken by assault is prohibited." The 1949 Geneva Convention is more succinct and says, "Pillage is prohibited."

Wanton destruction, of which there are many instances both in Dili and beyond, is another area for possible indictment. An attacker must, under the laws of war, distinguish between military targets and civilians and their property. Should he not do so, he is guilty of the war crime of indiscriminate attack. If that attack results in "extensive, willful and unnecessary damage", he is then guilty of wanton destruction. (The current Russian Campaign in Chechnya is a classic example as was its 1994-96 predecessor).

The East Timor issue indisputably involves the paramilitaries under the prointegration commanders such as Joao Tavares and Eurico Gutteres. "Paramilitary", it should be noted, is not a legal term. However, all militias, volunteer corps and police units taking part in armed conflict are defined in international law as lawful combatants.

As it has been widely alleged that the prointegration militia such as Aitarak have acted under the direct supervision of TNI, any tribunal will look at the chain of formal military command.

One matter it may wish to seriously consider is if and when orders were given by that command structure which resulted in acts of pillage and wanton destruction and other crimes. Gen. Wiranto is alleged to have met with prointegration militia leader, Eurico Gutteres in Denpasar, Bali, immediately after the referendum result was announced.

Were it to be argued in defense at any war crimes tribunal related to East Timor that the conflict there was in fact a civil war, this would rest on Jakarta's claim to legitimate annexation. This, however, would not entirely free the defense. The International Court of Justice holds that a foreign state is responsible for the conduct of a faction in a civil war if that faction is a de facto agent of the said state. There are precedents and surprisingly one of these might give any defense considerable hope.

In 1997 the UN Yugoslavia Tribunal ruled the Bosnian Serb army was not a de facto agent of Serbia. Nonetheless, it went on to say that Serbia was not party to the Bosnian conflict, the kind of argument that any Indonesian defendants in an East Timor tribunal would appear to have great difficulty in mounting. Here it might be noted that the International Committee of the Red Cross Commentary on the Geneva Conventions focuses on who made the decisions leading to illegal acts.

Additional Protocol II of 1977, which governs internal conflicts, has no criminal liability provisions. Were the defense to argue that events in 1999 in East Timor fall under this, the prosecution could refer to The Statute of the International Criminal Tribunal for the Former Yugoslavia, which invokes Common Article 3 of the Geneva Convention governing civil wars and serious violations thereof.

Such "serious violations" include the threat to life and health; murder, ill treatment, torture and rape. Further power to the prosecution's elbow would come from The Statute of the International Criminal Tribunal for Rwanda, which defense hostage taking (are the refugees in East Nusa Tenggara hostages?) and summary executions among further serious violations of Common Article 3 and Additional Protocol II.

There is a long way to go before any charges might be laid. Attempts will be made, have been made, to widen the frame of reference to as far back as 1975. It remains to be seen what Mary Robinson makes of these. Finally, it may be said that international law, in the form of the Geneva Convention, "requires all parties to search for and either extradite or try all persons suspected of having committed grave breaches". Grey areas do exist and the less than wholehearted pursuit of indicted war criminals, notably the Serbs Radovan Karadzic and Ratko Mladic, gives cause for concern but none of those who know they might be liable for acts committed in East Timor can rest in unalloyed ease.

The writer is a freelance journalist living in Jakarta.