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.