What other charges could await generals?

What other charges could await generals?

By David Jardine

JAKARTA (JP): The call by an Indonesian legal body for the
country to allow its ranking military figures to be tried for
crimes allegedly committed under their aegis in East Timor once
more raises questions about possible charges. The officers,
including Gen. Wiranto, are alert to the danger and have taken on
one of the erstwhile thorns in their side, Adnan Buyung Nasution
as counsel.

In an earlier article by this writer it was suggested that
pillage and wanton destruction, as defined by the Geneva
Conventions of 1949 and the Additional Protocol of 1977, might be
among the charges laid against those involved in this year's
violence in East Timor. The evidence of mass graves, which by
their very definition are burial sites where a multiplicity of
bodies are found, widens the range of charges that can plausibly
be laid.

What the Geneva Conventions and Additional Protocol I say is
of the first importance. In looking at how international
humanitarian law might apply, we find that "all cases of partial
or total occupation of the territory, even if the said occupation
meets with no armed resistance" is germane to East Timor. The
defense may wish to argue that the term "occupation" does not
apply but since Indonesia's self-styled "integration" of East
Timor was never recognized in international law, they would
appear to be on thin ice.

Moreover, since the International Court of Justice has ruled
that a state is responsible for the conduct of a faction in a
civil war if that faction is a de facto agent of that state, the
defense will be lightly armed if it attempts to argue that the
conflict was solely internal.

As one international legal expert, Steven Ratnes, has argued,
although the Geneva Conventions "create criminal liability only
for violations committed in international armed conflicts, recent
developments has shown the possibility of prosecuting war crimes
in internal conflicts without having to find some sort of linkage
to international war". Both the Rwanda and the Yugoslav tribunals
give jurisdiction over serious violations of international
humanitarian law in internal conflicts.

To return to what possible charges can be brought against the
principals in the recent East Timor mayhem, we can look to
Article 3 common to the Four Geneva Conventions of Aug. 12, 1949.

This stipulates the principle of hors de combat; "persons
taking no active part in the hostilities, including members who
have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause, shall in all
circumstances be treated humanely". It then proscribes "in
particular murder of all kinds".

If the Suai church killings, which took the lives of three
priests and over 20 refugees under their protection, can be
definitely linked to the Indonesian Military (TNI) or any of
those under their control and direction such as the Aitarak or
Merah Putih militia groups, then they can be found guilty of
grave breaches.

There is of course an absolute rule in international
humanitarian law that states civilians must not be targeted for
military attack in any circumstances. What this clearly and
infallibly means is there are no mitigating circumstances. The
Nuremberg Charter, which, of course, arose from the trials of
Nazi war criminals, codified as crimes against humanity crimes
such as "murder, extermination, enslavement, deportation and
other inhumane acts done against any civilian population". The
"any" again rules out exemptions of whatever kind may be pleaded.

Whether the prosecution may wish to argue that some or all of
the East Timorese in camps across the border were actually
deported remains to be seen. Certainly, however, a number of
press reports suggest that many are there against their will.

Those gathering evidence must also look at the question of
extrajudicial executions that are by their very nature illegal
acts. In international humanitarian law these are defined as
"willful killings without judicial process". Such executions are
considered grave breaches of the Third Geneva Convention and
apply among others to journalists. The killing of the Dutch
journalist Sander Thoenes may prove to have been just such an
extrajudicial execution.

The defense will almost certainly mount arguments along the
lines of plausible deniability. The essence of the prosecution's
job is to establish responsibility. Whether the evidence is
sufficiently compelling or not depends to some degree on the
intimidation of witnesses and the kind of cooperation they are
willing to give.

The mill of justice will grind slowly but if any tribunal that
is set up is assiduous in collating and assessing evidence it
ought at some stage to be able to pass sentence.

The writer is a freelance journalist based in Jakarta.