Trying to escape the past is never easy and anyone who thinks it is should look at the recent findings of the NSW Deputy State Coroner in the inquest examining the deaths of five journalists in Balibo (Timor Leste) in 1975. It may have been some 32 years ago, but wilful killing is wilful killing and to tolerate it lessens us as human beings and to try and justify it must expose us for our lack of humanity and desire for justice.
The findings will not provide closure to any of the parties concerned and neither does Indonesia's insistence that the case has been closed and there is nothing to revisit in the matter mean that the case is in fact closed. To the contrary, the findings by the coroner provide a means of proceeding to formal charges of the perpetrators of the alleged crimes. Interestingly, the crimes have been characterized as being international war crimes and as such this means that the issue of universal jurisdiction arises.
The language of the findings was blunt and state that the killings were wilful and not in the heat of battle, suggesting a deliberateness and premeditation that would be a clear violation of the Geneva Conventions. The coroner has stated in unequivocal terms that the five newsmen "were shot and or stabbed deliberately, and not in the heat of battle."
Now that the findings have been handed-down it will be a diplomatic challenge for the Australian government to handle the fall out, irrespective of whether the reigns of Australian government change from Liberal/National to Labor on 24 November 2007. Nevertheless, the Labor Party has upped the ante, so to speak, with the Party leader suggesting that not only are the allegations and findings serious but that a Labor government would allow war crimes prosecutions to proceed.
Even though Australia has not prosecuted under the provisions of the Geneva Conventions directly, it has though prosecuted under domestic legislation that has relied on the provisions of the Geneva Conventions and other international legal instruments.
However, the problem is not only Australian here as there will now clearly be a ratcheting-up of pressure on the Indonesian government to be more serious in its approach to seeing justice done for alleged abuses of the past. Particularly, there will be pressure to see that any truth and reconciliation or friendship commissions do not provide blanket immunities for perpetrators of alleged human rights abuses.
An Indonesian fear that this may just be a precursor to more international trials is reasonable. But, from a justice perspective; you do the crime you need to do the time. In other words these are allegations that need to be tested in a court of law and not only in the court of public opinion. we cannot let bygones be bygones in this case because if the evidence that arose in the coronial inquiry suggests that there is a case to answer here. Nevertheless, Australian government officials have already begun to suggest that the findings are the first step in a long road that will take considerable time.
In terms of prosecutions, the most recognizable of the alleged perpetrators is Yunus Yosfiah, a former general and one-time government Minister for Information. The givers of the orders Moerdani and Kalbuadi are dead so prosecutions are not possible against them. Yet, the Indonesian government seems confident that the not is the case closed, but that the Australian government will tread very carefully in pursuing any action in this case.
Despite the insistence from both sides that the coroner's findings will not rock the boat it is premature to say this with any conviction. Right now with the only issue being the findings, then this may be true; the boat will sway a little but it will not rock! Yet, if the Australian Federal Police pursue further investigations and this matter then proceeds to the Commonwealth Director of Public Prosecutions, then the little sway may soon develop into a full-scale rocking of the boat.
It would not be long before Commission I of the Indonesian House of Representatives and other members of the community started a call to suspend diplomatic relations with Australia. Will Australian and Indonesian relations survive an attempt to bring this matter forward to prosecution, probably, but there will be certainly elevated levels of tension for the duration.
The wait continues!