War Crimes in East Timor
October 1999 |
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What's
it about?
Have war crimes been committed in East Timor? In fact, what is a war crime, and how do
we decide what is acceptable conduct in a war situation? Is war the right place for the
niceties of the law? After all, wars are conducted with guns and bombs, so what should we
expect, a civilised engagement akin to a few angry words with your neighbour across the
back fence? No, but the essence of an allegation of a crime against humanity is that
illegal abuses take place against civilians, as always the great losers in an armed
conflict.
The UN Human Rights Commission has met in Geneva and agreed
to launch an investigation into allegations of war crimes following the vote for
independence in East Timor, and the grisly evidence recently exposed by UNAMET soldiers as
they traverse the island's terrain. In the last week the Australian Government has
suggested that it may be willing to hand over intelligence files on these alleged
atrocities, for investigation by the Commission, some of which might link Indonesian
troops to members of the so-called militia.
The call for an international war crimes tribunal is not limited to
alleged human rights breaches in East Timor, though of course Australians are
understandably more interested in activities on our doorstep than recent happenings in
Europe and Africa. Given the terrible events in East Timor, this month we take a look at
war crimes and the legal consequences that might await these perpetrators of murder, rape,
torture and forced displacement.
The international criminal court
It's easy to forget about news that was once front page with our morning cereal -
Sierra Leone, Rwanda, the former Yugoslavia, Kosovo. But behind the scenes there have been
moves to establish a permanent international crimes tribunal, not the short-lived United
Nations tribunals that sprung out of the Rwanda and Yugoslavian conflicts, and now the
internal conflict of East Timor. This would be the place international war criminals could
expect to find themselves to answer for crimes against humanity and genocide.
You may not be surprised to learn that Iran, Iraq,
China and Libya voted against an International Criminal Court treaty which was otherwise
agreed to by 120 countries in July 1988 - but you will be surprised to learn that the
United States also sided against the scheme. Why? Because there has been a theory afoot
that enemies of the US would take the opportunity to bring charges against the US in its
various ventures abroad, particularly those who suddenly find themselves with a large axe
to wield as a tool of vengeance.
Okay, there may be some legitimacy in this parochialism,
and no doubt citizens of the US are wary of their role as the world's policeman, and the
consequences that may follow their intervention into international hot spots. It doesn't
take too much imagination to conceive of a call for a politically motivated indictment of
NATO troops in Kosovo. But once an accused war criminal is indicted by the International
Criminal Court, he or she might find it a damn sight harder to seek refuge in a friendly
country. In fact, it seems that the more notorious the criminal, the greater the chance
that they will now spend their days on the balcony of a luxury villa counting the spoils
of their villainy squirreled away in an anonymous Swiss bank account.
What should we do
Despite the political realities that always have a place in negotiating any
international treaty, and despite the fact that some conflicts have spawned legal
proceedings to attempt some form of retribution (most notably the Nuremberg Trials), those
attempts have been ad hoc, and as a result, the vast majority of war criminals have
escaped justice. These criminals act with impunity, safe in the knowledge that they are
unlikely to be caught because there is no permanent body acting as their watchdog. Thus, a
permanent court also affords the best chance for victims to seek some type of redress,
however limited it might be in a practical sense, but it is a basic tenet of criminal law
that victims are entitled to see their assailants brought before a court. It is almost a
truism that domestic authorities, for clear political and common sense reasons, are rarely
going to invoke laws against their own populations, so the best chance at redress lies
with an international body.
It seems to us that each time one of these conflicts spawns
calls for a criminal tribunal there is an unholy argument, usually by ideologically
opposed governments, about the need for an ad hoc tribunal to be convened. Wouldn't it be
simpler to have a permanent international court, beholden to no-one but its charter, to
automatically exert some influence without a diplomatic bun fight? And as any lawyer will
tell you, one of the great virtues of a permanent court is that you can, at least to a
reasonable extent, expect to find some consistency in their decision making.
People are entitled to allow precedents to be established so they
have some idea of the likely result of a case, or at least the most favourable manner in
which they can argue on behalf of their clients. This will protect the alleged criminals
as well, which should always be of paramount importance to any fair-minded person.
Time
to act
How many times do we have to hear these arguments, how often are we going to debate the
rights and wrongs of bringing war criminals to justice? Surely the lessons of the
innumerable and terrible conflicts that have taken place in this bloody century are
sufficient. If the internet is the gateway to global communication, can't we adjust our
thinking to allow for a global denunciation of atrocities that, as we have recently seen
in East Timor, will never go quietly into the night. That's what human rights are about -
punishing those responsible for violations of the law, and as far as possible protecting
the most vulnerable from the consequences of yet another armed conflict. Half a century
after Nuremberg we should at least be able to say that we have learned something of
lasting value.
Read this: The legal information contained
above is intended to be general information about the law. It is not a substitute for
legal and other professional advice. Lawscape Communications P/L does not accept
responsibility for loss to any person, who either acts or does not act because of this
information.
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