In May 2002, East Timor took its place within the world as a fledgling nation whose birth had principally been associated with horrifying violations of human rights. This tiny half island’s transition from the 27th province of Indonesia to an independent state, had been at great human cost.
Thousands were murdered and a further 200,000 fled as refugees to West Timor as pro-autonomy Timorese militia, acting under the command of General Wiranto and the superior officers of the Indonesian military, launched a violent campaign of intimidation and terror in September of 1999.
Today, General Wiranto resides in Jakarta and the brutal military he led remains largely intact, free to continue its campaign throughout the greater Indonesian archipelago.
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Today in Jakarta these authors of atrocities evade international justice and perpetuate the exemption from punishment enjoyed by agents of state, who have for a quarter of a century, flagrantly violated the human rights of indigenous Timorese.
As if his impunity was not enough for the Timorese to bare, General Wiranto has recently announced his candidacy in Indonesia’s first direct election for President scheduled for July this year.
Wiranto is one of two presidential candidates vying for the coveted nomination of the Golkar Party (the political party machine behind former President Suharto). Recent indications are that the Golkar Party are ahead in the polls leading up to the April 5 elections.
Wiranto’s presidential campaign has won still further political reprieve last week when American UN judge in East Timor denied the prosecutor’s demand for a public hearing to determine whether the arrest warrant issued against the General in February 2002 should be executed.
The application for a public hearing, (which was accompanied by 1300 pages of supporting evidence), relates to an arrest warrant issued in connection to an indictment naming General Wiranto as Commander-in-Chief responsible for crimes against humanity allegedly committed in East Timor in1999.
The Special Panel for Serious Crimes (Massachusetts Appellate judge Phillip Rapoza presiding) held that there was “no precedent in international criminal procedure” for a public hearing of this nature. This setback came despite concessions by the prosecutor that Wiranto could send a legal representative or appear by video link if he feared being arrested, and despite an indication from Wiranto’s legal representative that he would participate in a public forum.
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On February 9, 2004 Longuinhos Monteiro, (East Timor prosecutor ) made the statement to Radio Australia that:
General Wiranto is willing to give his testimony through the visual link and also it is a good opportunity for him to defend himself, to give his answer on our demands. The next arrangement is will be for me, my office and those from Indonesia who will provide the link for video conference ...
In a written decision, the Special Panel Judge denied the motion of the Deputy Prosecutor General citing the reasons, inter alia, that such an oral hearing was not provided for in the regulations of the Special Panels.
It is indisputable that as Commander of the armed forces there is an ample case for Wiranto to answer. At the very least, a public hearing would have facilitated a means around the current impasse that exists. East Timor’s Tribunal holds the indictment but not the extra territorial power to require extradition, whilst the Jakarta Court has the means to arrest but not the political will to execute. The concessions made by Indonesia’s prime military suspect, to agree to submit to the jurisdiction of the Special Panel, was a great opportunity lost.
Historical Precedent
Calling military Generals to account for their actions is an age old practice and the requirement in international law for responsible military command is a fundamental duty for which Wiranto can not now plead ignorance.
Sun Tzu, wrote in 500 BC, in what is considered to be the oldest military treaties in the world that:
When troops flee, are insubordinate, distressed, collapse in disorder, or are rerouted, it is the fault of the general. None of these disorders can be attributed to natural causes. (S Griffith transl. 1963)
In his early writings, Grotius theorised that: “. . .a community or its rulers, may be held responsible for the crime of a subject if they knew it and do not prevent it when they could and should prevent it.” (Kelsy transl. 1925)
A preliminary review of the material suggests that perhaps early recognition of the doctrine of command responsibility dates back to 1439 when Charles VII of France issued an ordinance detailing the responsibility of military hierarchy for their junior officers. (Mitchell, 2000)
In 1474 the trial of Peter Von Hagenbach brought international recognition to the concept of military responsibility. Upon the order of the Archduke of Austria, Hegenbach was charged and brought to trial before an international panel of 28 judges from allied states of the Holy Roman Empire. He stood trial for the alleged crimes of murder, rape, perjury and other crimes against the laws of God and man. Since no state of war existed at the time, this was technically not a War Crimes trial as such, however it was a constituted international tribunal which judged Hagenbach to have been derelict in his duty to prevent, and ordered that he be deprived of his knighthood and duly executed. (Paust, 1972)
In 1621 King Gustavus Adulpfus of Sweden issued Articles of War which regulated the responsible command of his army.(Mitchell, 2000) The King promulgated his “Articles of Military Lawwes To Be Observed In Warres”, Article 46 stipulating in part that:
No Colonel or Capitane shall command his soldiers to do any unlawful thing, which who so does shall be punished according to the discretion of the judges ...
In 1689, it is recorded that Count Rosen was recalled by James II and relieved of military duties for his “outrageous siege methods, which included the murder of innocent non-combatants” during an unsuccessful attack upon Calvinist Londonderry. (Hargreaves, 1970)
From its very inception, American nationhood imposed a duty upon military commanders. Article IX of the American Articles of War re-enacted in 1776 mirrored the wording of an earlier provision enacted by the provisional Congress of Massachusetts. It read:
Every Officer commanding, in quarters, or on march, shall keep good order, and to the utmost of his power, redress all such abuses or disorders, which may be committed by any Officer or Soldier under his command; if upon complaint made to him of Officers or Soldiers beating or otherwise ill treating any persons, or committing an kind of riots, to the disquieting of the inhabitants of this continent, he, the said commander, who shall refuse or omit to see justice done to this offender or offenders, and reparations made to the party or parties injured, as soon as the offender’s wages shall enable him or them, upon due proof thereof, be punished, as ordered by General Court-Marshall, in such manner as if he himself had committed the crimes or disorders complained of.
Then in 1863 the United States issued and promulgated a General order 100 better known as the Lieber Code, Article 71 of which provided for the punishment of commanders who ordered or encouraged the intentional killing of an already “wholly disabled enemy”. Post Civil war investigations led to the hanging of Commandant of the Confederate Prisoner of War Camp, Andersonville, Georgia Captain Henry Wirz for violations of the Lieber Code in particular the torture, maltreatment and death of prisoners of war under his charge.
More recently in April, 1902 President Roosevelt, upon confirming the conviction of a Brigadier – General of the United States Army for his conduct of operations in Philippines, is quoted as stating:
The very fact that welfare is of such character as to avoid infinite provocation for the commission of acts of cruelty by junior and the enlisted men, must make the officer in high and responsible positions peculiarly careful in their bearing and conduct so as to keep a moral check over any acts of an improper character by their subordinates. (Green, 1995)
The brigadier had issued the following order:
Take no prisoners. I wish you to burn and kill; the more you burn and kill, the better it will please me. The interior of Samar must be made into a howling mess. (Heinl, 1962)
Arising from the same conflict in the Philippine Islands, by General Order No. 221, Headquarters Division of the Philippines, First Lieutenant Natalio Valencia was tried for war crimes and sentenced to death for ordering the illegal execution of non-combatants, on the 17 August 1901. So too by General Order No. 264, Pedro A. Cruz was condemned to death, for permitting the murder of two American prisoners of war in his custody as leader of a guerrilla force.
At the conclusion of World War I, an international commission on the Responsibility of the Authors of the War and on Enforcement of Penalties met in Versailles. In a report published this commission made the recommendation that an international tribunal be set up to try the crimes related to war. In this report delivered in March 1919 Part III concluded:
All persons, belonging to enemy countries, however high their position may have been, without distinction of rank, including Chief of Staff, who have been guilty of offences against the laws and customs of war or the laws of Humanity, are liable to criminal prosecution.
So by the time World War II began belligerent state were governed by a custom of command responsibility codified by the Hague Convention 1907 and the Red Cross Convention 1929 and a warning that should have been evident from the unfulfilled demands of the Versailles Treaty that command responsibility would be enforce in any future conflict.
When the world learned of the genocidal practices of Nazi Germany and the actions of Japanese forces the collective conscience of the world was shocked. These hostilities served as a catalyst and led representatives of many of the victimised states to issue the St James Declaration in January 1942, which promised to punish “through the channels of organised justice” those responsible for War Crimes. (Freidman, 1972)
On August 8, 1945 the Allies signed the London Agreement establishing the International Military Tribunal with a jurisdiction that was not limited to geographical location. This Tribunal had powers to try both military commanders and civilian leaders as per Article 6 of the Charter of the International Military Tribunal.
Japanese General Yamishita testified in his own defense that he both recognised and acknowledged the concept of command responsibility as applicable to his action but insisted that that he both maintained and adhered to his responsibilities.
The order confirming the death sentence of General Yamashita in 1946, handed down by General of the Army Douglas MacArthur, Jr. referred to the “traditions of fighting men”:
The soldier, be he friend or foe, is charged with the protection of the weak and the unarmed. It is the very essence and reason for his being. When he violates this trust he not only profanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are long and honourable. They are based upon the noblest of human traits - sacrifice.
For half a century the International Military Tribunal sitting at Nuremberg and the International Military Tribunal for the Far East sitting in Tokyo have stood as landmark entities and major instances of prosecutions for offences against the norms of International Humanitarian Law. (Meron, 1995)
A central tenant in modern thinking, as it relates to International Criminal Law, is the notion that atrocities in war are not committed by abstract entities but rather by individuals, and that it is natural persons as opposed to a state which are individually culpable for offences against the common conscience of humanity and for breaches of the general rules of engagement in conflict. The attachment of criminal responsibility require that certain acts alleged to have occurred can be attributed to an individual at trial.
Sanctions, to be effective, must operate on individuals rather than states. This necessarily involves making inroads upon national sovereignty and rely upon the cooperation between states.
States ordinarily punish crimes in the interest of their own peace and security and state laws provide for the normal exercise of domestic criminal jurisdictions. There are however times when the domestic jurisdictions of states prove inadequate.
International Criminal Tribunals have become the accepted forum to issue indictments against officials/agents of states. This has translated into the criminal trials of high ranking military officials before tribunals investigating the violations committed in the territory of the former Yugoslavia, Rwanda, Sierra Leone and East Timor.
It is now clearly encoded in international statute as well as customary law that military structure is founded upon established standards of diligence and the control of leaders over subordinates. It is this chain of command, this organizational hierarchy, which make a fighting force predictable and disciplined in a time of war. This “basis tenant of military life” (Hessler, 1973) obliges subordinates to obey commands and places a corresponding duty upon military leaders to be vigilant in preventing and punishing atrocities.
General Wiranto as Commander-in-Chief of the Indonesian forces has a prima facie case to answer with regard to the events which unfolded in East Timor in September 1999. For the Special Panel for Serious Crimes to obstruct any real forum for discussion as to the General’s surrendering himself up to authorities, (or in the alternative; possible cooperation between state parties for his arrest) not only beggars disbelief but stands in the face of centuries of precedent.
To allow the Indonesian General run for the highest office in the land (and thereby attract state immunity), well that’s breathtakingly wrong.
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