war criminals and Australian law
and Kath Gibson*
Uniya Occassional Paper no.13, May 2007
For there really is, as everyone to some extent
divines, a natural justice and injustice that is binding on
all men, even on those who have no association or covenant with
Aristotle, Rhetoric, Book 1
Australia may be closer to East Timor than to New Zealand,
but successive Australian governments did next to nothing while
an atrocity unfolded just over the horizon. Between 103,000
and 183,000 East Timorese civilians were killed or died of starvation
or other unnatural causes during the illegal Indonesian occupation
between 1975 and 1999.
Since the referendum in 1999 which led to independence in 2002,
there have been several attempts to bring to justice those responsible
for crimes against humanity
 in East Timor, including murder, rape, torture, forced
disappearance and forced displacement. Probably the most effective
were the Community Reconciliation Processes of the Commission
for Reception, Truth and Reconciliation (CAVR in its Portuguese
acronym), which dealt with nearly 1,500 minor crimes committed
throughout the occupation period.
More serious crimes committed during 1999 alone were referred
to the Serious Crimes Unit established by the United Nations.
It charged 391 East Timorese militia members and officers of
the Indonesian military (formerly ABRI, now TNI), but because
Indonesia refused to hand over the 304 of its citizens and militia
leaders living in Indonesia who had been charged, only East
Timorese perpetrators were jailed.
Instead of cooperating with the UN, and to head off demands
for an international war crimes tribunal, Indonesia set up its
own Ad-hoc Human Rights Tribunal in Jakarta in 2002. It tried
sixteen men but eventually resulted in the jailing of only one
person, the East Timorese militia leader Eurico Guterres.
Finally, following the report of the UN Commission of Experts
in 2005, which recommended the establishment of an international
tribunal should Indonesia continue to reject calls for justice,
the two governments set up the Indonesia-Timor Leste Commission
of Truth and Friendship (CTF). It has been widely criticised
for lacking legitimacy, as it will recommend amnesties from
prosecution for those who tell the truth about events in 1999.
In spite of this offer, the CTF’s public hearings have become
a forum for misinformation and denial, with most Indonesian
witnesses blaming the UN, Australia and the East Timorese themselves
for the violence that led to nearly 1,500 deaths and the destruction
of about ninety per cent of East Timor’s infrastructure.
The bitter experience of post-conflict nations around the world
is that there must be some reckoning with the past in order
for people and nations to move forward. In spite of the understandable
efforts of the leaders of East Timor to forget the past and
build friendships with their Indonesian counterparts, calls
continue for action to address crimes against humanity.
Unfortunately, there is no strong support within the UN for
an international criminal tribunal, or even for Indonesia to
hand over the military officers and militia leaders indicted
by the Serious Crimes process in Dili whom it continues to harbour.
So East Timorese survivors and international supporters have
resorted to other legal remedies.
In 1999 General Johnny Lumintang was Deputy Chief of Staff
of the Indonesian army (the TNI), and had been a commander in
East Timor. On 30 March 2000, just after he arrived in Washington
DC, he was served with a writ alleging that he authorised a
“planned campaign of terror, intimidation, kidnapping, murder,
burning, rape and other violations.” He quickly left the country
and did not return for the trial in 2001. The three East Timorese
plaintiffs, who testified about “murdered family members, beatings
at the hands of the TNI, forced expulsions, and property destroyed”,
were awarded damages of US$66 million. None of this money has
been recovered to date.
The Lumintang decision followed the trial of Indonesian General
…who was regional commander during the November 12, 1991 Santa
Cruz massacre of over 270 East Timorese. In 1992, a court awarded
$4 million in compensatory damages and $10 million in punitive
damages to Helen Todd, the mother of [New Zealand citizen] Kamal
Bamadhaj, the only non-East Timorese killed that day.
These were civil rather than criminal trials, brought under
the US Alien Tort Claims Act of 1789, which allows anyone
in the US to sue for acts committed outside it “in violation
of the law of nations or a treaty of the United States.” This
Act has been resurrected in recent decades to achieve a measure
of justice for the victims of human rights abuses where no criminal
trial was possible, even though an order for damages cannot
be enforced unless the person involved visits or has economic
interests in the US.
No other nation has a law quite like the Alien Tort Claims
Act. However, it reflects the underlying principle of international
law, which is much stronger now than in 1789, that some crimes
are so egregious that they create obligations on all nations
to prosecute them. This leads to the principle of universal
jurisdiction, which has been invoked in particular in Belgium
and Spain in recent years to pursue human rights abusers including
the former Chilean dictator Augusto Pinochet.
Is there anything that might be done in Australia to bring
Indonesian military leaders to justice? In theory, under the
principle of universal jurisdiction an Australian court could
prosecute an Indonesian military officer who is in Australian
custody or territory  and who has been indicted for
crimes against humanity in East Timor. However, under the Australian
legal system they must also be crimes under Australian domestic
law in order for prosecutions to have any chance of success.
This still leaves several options which have not yet been tried
in Australian courts.
Australian war crimes legislation
In spite of enacting a plethora of relevant pieces of legislation
since World War II,  Australia has a poor record for prosecuting
war criminals. After a flurry of cases involving mostly Japanese
suspects following the end of World War II,  Australia became a haven for WWII-era criminals
from Europe. In response to public pressure and media reporting
of suspected cases a Special Investigations Unit was set up
by the Hawke government in 1989. It studied nearly 850 cases
from WWII, but closed down in 1992 after launching just three
prosecutions, all of which failed. Since then not a single person
has been prosecuted, in spite of allegations of the involvement
of Australian citizens in war crimes in the former Yugoslavia
in the early 1990s. 
The War Crimes Act 1945 is not applicable to the Indonesian
invasion of East Timor as it only applies to crimes committed
in Europe between 1939 and 1945.
 Another option is the Crimes (Torture) Act 1988,
which implements the UN Convention Against Torture. There
are tests that must be applied before this legislation could
be used. 
To date there have been no prosecutions brought under this Act.  But it remains a possibility, should someone
accused of torturing others after 1988 arrive in Australia.
A more promising course of action was brought to our attention
by Professor Hilary Charlesworth. The Geneva Conventions
1949, which are the main source of international law regarding
war crimes, were incorporated into Australian law in the Geneva
Conventions Act 1957.
 This Act was superseded after Australia ratified the
Rome Statute of the International Criminal Court (ICC)
in 2002, but it still applies to crimes committed before 2002.
 Under Sections 6 and 7 of
this Act, an Indonesian military officer could be tried in an
Australian court either for the “grave breaches” of humanitarian
law specified in Article 147 of the Fourth Geneva Convention,
which is intended to protect civilians caught up in an international
war;  or for violations of common Article 3 of the Conventions,
which gives more limited protection to civilians in internal
There are, though, several potential sticking points. For starters,
the accused would have to be either present in Australia or
under Australian responsibility, and the action would need to
be brought by the Director of Public Prosecutions of an Australian
state or territory who is sympathetic to the case.
There is also debate about whether common Article 3 of the
Conventions, which prohibits certain conduct in internal conflicts,
creates individual criminal responsibility for internal conflicts,
or merely State responsibility.
 In other words, can individual officers be held accountable
for their actions, or only the Indonesian state? The recent
Federal Court decision in the Sryyy case
 held that common Article 3 only imposed State responsibility.
However, it is more likely that a landmark 1995 case in the
International Criminal Tribunal for Yugoslavia, Prosecutor
v Tadic 
would be upheld by the High Court. It confirms that individuals
are criminally responsible for their actions.
Finally, the parties to the conflict must also have been parties
to the treaty at the time the crimes were committed.
 Indonesia ratified the Geneva Conventions in
1958. Since East Timor did not become an independent nation
until 2002, if the conflict is international in nature the other
nation involved would be Portugal, the colonial power in East
Timor. Portugal became a party to the Geneva Conventions
Therefore the Geneva Conventions Act 1957 does apply
to the conflict in East Timor. This remains an option should
an Indonesian military officer appear in Australia or its territories
or territorial waters, for instance on a military exercise or
for training. The Defence Department apparently does human rights
screenings of applicants for training, so those indicted are
unlikely to slip through this net. Still, they would be vulnerable
if they arrived on personal business.
The Balibo inquest and extradition
On 5 February 2007 the NSW Coroners Court began an inquest
into the death of one of the “Balibo Five”: Brian Peters, a
British journalist who was resident in NSW at the time.  Evidence from eye witnesses
and intelligence officers confirmed that former ABRI commander
Yunus Yosfiah, who went on to become a Major General in the
TNI and Information Minister in the Habibie government, ordered
the attack and may have led the shooting. While UN investigators
recommended in January 2001 that he be prosecuted over these
deaths, he has not been indicted by the Serious Crimes Unit
in Dili. 
Yosfiah was summonsed to appear before the inquest but declined
Because he has not yet been charged with any offence, Younis
cannot yet be extradited to Australia. However, if Deputy State
Coroner Dorelle Pinch concludes that he should be charged with
murdering Peters, she can refer the case to the NSW Director
of Public Prosecutions (DPP).  As war crimes are a federal
offence, he would likely refer it to the Commonwealth DPP, who
would decide whether to prosecute.
Whilst the extradition treaty between Australia and Indonesia
was only adopted in 1995, Australia is still able to request
extradition for offences committed before this time if the act
was an offence under the laws of both Indonesia and Australia
when it was committed.
 The treaty offers numerous escape routes if the Indonesian
Government does not support Yosfiah’s extradition,
 but if so it requires them to “submit the case to
[Indonesian] authorities… for prosecution.” The treaty also
gives scope for political interference from the Australian side.
Other Australians died in East Timor during the Indonesian
occupation, including journalist Roger East, who was killed
on the Dili wharf on the first day of the full-scale invasion
in 1975. The possibility therefore exists that other inquests
could lead to requests for the extradition of military officers
to stand trial for murder.
It is also possible for an East Timorese now living in Australia
to sue an Indonesian military officer for crimes committed in
East Timor under civil rather than criminal law. Potential claims
include assault, unlawful imprisonment and the destruction of
property. Being a civil rather than criminal case, a successful
prosecution would result in an order for damages rather than
a custodial sentence.
This is similar to the Lumintang and Panjaitan cases referred
to earlier. However, with no law equivalent to the US Alien
Tort Claims Act, it would depend upon both the defendant
and plaintiff being present in Australia or having interests
here; on there being some connection between the original injury
suffered in East Timor and the plaintiff’s situation in Australia
— for instance, if their experiences had left them with post-traumatic
stress disorder and unable to work or engage in family life;
and on the court determining that it is the most appropriate
place (rather than, say, a court in Indonesia or East Timor)
to bring the case.
This course of action is most likely to be pursued where an
East Timorese now resident in Australia discovers that someone
who had perpetrated a common law crime against him or her in
East Timor is currently in Australia, or has financial interests
These legal avenues, while not impossible, are obviously fraught
with difficulty, and are unlikely to provide relief to the many
East Timorese who cannot access the Australian legal system.
Their main value is as a way of highlighting the ongoing problem
of impunity for crimes against humanity in East Timor. The secondary
benefits are that they would restrict the movements of alleged
perpetrators and put pressure on the Indonesian Government to
take effective action to address this issue. They would also
show that the Australian Government is serious about supporting
justice for human rights abuses in our region, and about its
own reputation in this area.
There are also a number of administrative measures the Australian
Government could take to make life uncomfortable for these men.
For instance, applicants for Australian visas now must answer
the following question: “Have you, or has any member of your
family unit included in this application, ever… committed, or
been involved in the commission of war crimes or crimes against
humanity or human rights?” Close monitoring of responses to
this question, preferably in the public domain, would highlight
whether anyone suspected of such crimes has applied for entry
into Australia, and if so, whether their applications have been
Likewise, Australia could prevent those indicted but untried
by the Special Panels for Serious Crimes from having economic
interests in Australia or from travelling here.
 Australia could also take a lead in encouraging other
governments to institute similar measures.
This is unlikely. Successive Australian governments were complicit
in the invasion of East Timor, the recognition of Indonesian
sovereignty, the cover-up over the Balibo Five, the carve-up
of the Timor Sea to extract the maximum possible economic benefit
for Australia, and other acts which have undermined East Timorese
independence and self-determination. The wording of the 2006
Lombok Treaty shows that the current Australian Government
remains prepared to ignore human rights concerns in order to
foster cooperation with Indonesia on “hard” security measures
such as counter-terrorism, “people smuggling” and drug trafficking.
To push for Indonesian military officers to be held accountable
for their crimes in East Timor is not to be anti-Indonesian.
It is also important for those East Timorese militia leaders
who have not yet been tried to be brought to justice. And as
Indonesian human rights groups confirm, holding perpetrators
to account is another valuable step in the slow process of separating
the military from government and of promoting respect for human
rights and the rule of law within the emerging democracy of
Indeed, while they bear individual legal responsibility for
their actions, the military officers accused of crimes against
humanity were mostly acting under orders. There is clear evidence
that the violence in 1999 was the deliberate outcome of a policy
formulated at the highest levels of the Indonesian military
— a policy of which the government was likely aware, if not
In the absence within Indonesia not only of credible justice
mechanisms but also of the offer of an
apology and the offer of reparations for victims, other nations
could help by taking steps such as implementing the recommendations
relevant to them contained in the CAVR’s Report; refusing military
cooperation and arms sales with Indonesia; and supporting the
International Solidarity Fund for Timor-Leste proposed by UN
Secretary-General Kofi Annan in 2006.
It could also mean acting on the repeated calls for an international
criminal tribunal along the lines of those for Rwanda and the
former Yugoslavia. The current political climate within Timor-Leste
and internationally makes it unlikely that a similar tribunal
will be established in the near future. This is especially true
now that the ICC has been established to deal with such crimes
occurring after 2002. There are also serious doubts about the
effectiveness of these tribunals given their cost, length, narrow
focus, limited outcomes and deterrence value.
However, there will continue to be calls for a tribunal while
the past remains an open wound for many East Timorese. In these
circumstances, human rights lawyers and the community in general
have no choice but to remain vigilant for any opportunity to
pursue justice for the people of the world’s newest nation.
* This paper was written by Dr Mark Byrne, Uniya’s Senior
Researcher, using the research report written by University
of Sydney law student Kath Gibson during her internship at Uniya
in early 2007.