History demands that General Wiranto be tried for war crimes

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.