18 November 2007

Prospective Prosecutions

Will Indonesia prosecute based on the findings of the NSW Deputy State Coroner? Not likely! As far as the Indonesian government is concerned, it is case closed. And to all intents and purposes it probably is. But that does not belittle the work of the coroner in exposing the cover-up of events of that fateful 16 October 1975.

The cover-up was not only one-sided and to this end the Australian government was complicit in allowing events to unfold as they did and any failure to acknowledge this fact would see an inaccurate alternative history continue to be perpetrated. The findings of the coroner clearly show that this was not simply a case of being caught in the cross-fire but rather a case of cold, calculated, and brutal murder of civilian journalists.

Despite Indonesia's claims that the process was one-sided, the insinuation here being the proceedings were biased against Indonesia, the fact remains that there was considerable eyewitness testimony without the need for any appearance by Yunus Yosfiah. There was ample testimony available to reconstruct the alleged events of that day. It must be remembered that the
NSW Coroner's Court is a court for the purposes of inquiry. Inquiries generally occur where the death is violent, unnatural, unusual, or suspicious or the circumstances surrounding the death are unclear.

Ali Alatas, the former Indonesian Foreign Affairs Minister, has written an interesting account of his time as the Foreign Minister and the fact that East Timor was like a pebble in Indonesia's shoe. The analogy suggests that the 'issues' surrounding Indonesia's occupation and integration of East Timor were a distraction more than an all consuming focus. Similarly, for the Australian government what happened in Balibo is perhaps a similar distraction. This is not to lessen the tragedy of either but rather the point is to highlight why these matters have been allowed to go on with so little governmental action. Yet, the findings handed-down in this case are an opportunity for both the Indonesian and Australian governments to remove any further distractions from the bilateral relationship once and for all.

What is likely to complicate things for the Indonesian government is that it is a signatory to the
Geneva Conventions and the characterization of the murders of Brian Peters, Malcolm Rennie, Greg Shackleton, Tony Stewart, and Greg Cunningham as a war crime in effect demands that Indonesia follow-up on the allegation. The Geneva Conventions would provide for Indonesia to either extradite the alleged perpetrators to Australia for trial or conduct the trials within Indonesia.

Will Indonesia extradite? Simply, No! Will Indonesia prosecute the still living alleged offenders, Simply, No! Even if Indonesia were to further investigate the risks are great as any further investigation will lead to two possible outcomes; the case really is closed and there is no additional information to be uncovered or the investigation will reveal a 30-year cover-up that exposes a whole range of other military and government officials, perhaps on both sides of the Timor Sea.

Yet, even if a prosecution was to go ahead the likely outcome based on previous experience would seem the perpetrators being acquitted. The direct referendum in Timor Leste, the violence that occurred in the immediate aftermath, and the subsequent trials held in the Central Jakarta District Human Rights Court suggest that convictions are unlikely for serving or retired Indonesian military personnel.

The way forward would see Indonesia finally giving a full account of what occurred, accepting responsibility where required, and really closing this matter once and for all. The positives for Yunus Yosfiah in this scenario are limited but in contrast the positives for the Indonesian government are numerous. The most prominent of these would be wide-spread and global recognition of Indonesia's coming of age as a democracy committed to the ideals of justice and humanity in addressing its past.

Indonesia is not the only country that needs to address its past. Australia must also revisit and address its failures in this matter and hopefully the findings of the NSW Deputy Coroner will provide the impetus for this to happen.

1 comment:

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