What constitutes a war crime?

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.