The State Administrative Court in Jakarta has rejected a petition by the Alliance of Independent Journalists (Aliansi Jurnalis Independen / AJI) to overturn the Indonesian Film Censorship Board (Lembaga Sensor Film / LSF) ban on the film Balibo. The story is told from the viewpoint of Roger East. Roger East was also murdered on the docks of Dili by Indonesia military forces.

The film says in its promotional material and trailer that it is based on a true story, and suggests in no uncertain terms that the five journalists (Greg Shackleton, Malcolm Rennie, Gary Cunningham, Brian Peters and Tony Stewart) that have come to be known was the Balibo Five were murdered by Indonesian forces invading East Timor.

Recent developments, including a coronial inquiry in the New South Wales Coroner's Court, found that there was sufficient evidence to proceed with further investigations of the perpetrators for committing international crimes of a serious and grievous nature; a war crimes investigation.

In many respects, it is not surprising that the film was banned in the first place, nor is it at all surprising that the ban was upheld by the State Administrative Court. It is not rocket science to understand that there are some things in Indonesia's past that she would not want to revisit, and this is one of them.

It is worth noting that the Australian government is not jumping up and down wanting to know why the film is subject to a ban. This is not surprising either. It is not surprising because Australia was very much complicit in the invasion as it gave the green light for the Indonesians to go in and forcibly integrate Portuguese Timor into the Unitary State of Indonesia. It is also not surprising because it shows how little thought the government of the time gave to the safety of the five journalists on the ground or to Roger East.

Nevertheless, it is surprising that the State Administrative Court has seemingly been asleep at the wheel when it came to hearing the evidence and actually listening to the evidence put forward by the Legal Aid Foundation - Press, legal representatives, of AJI. The State Administrative Court has utilised provisions that were not argued and appear to be poor choices on which to base the decision to uphold the ban and reject the AJI petition. In an important case, such as this one, where there are implications for freedom of speech and freedom of expression, which Indonesia supposedly guarantees, then the judges have a responsibility to get the law right.

On a side note, the film has already been screened in Indonesia despite the ban and no problems have been reported. Indonesian, Timorese, and Australia relations have not irretrievably broken down, there has not been mass rioting on the streets in the places where the film has been shown, and there has not been any inkling of the country degenerating into a state of anarchy. This suggests that, despite the Indonesian Censorship Board's concerns, Indonesian film viewers are more mature and critical of the material they watch than either the Government, the military, or the Censorship Board gives them credit for.

Indonesian Heroes -- Achmad Mochtar...

Indonesia is a wonderful country. Indonesia is a country filled with many wonderful and accomplished people. Indonesia is also a country with a rich history. It is in consideration of this that I post this little news piece discovered on my daily surf through Internet news. The post is in stark contrast to the less than rosy picture I have been painting with the posts about SBY and his ineffectual presidency.

Achmad Mochtar is not necessarily a name that jumps from the page as an easily identifiable Indonesian hero. However, he should be recognised much more widely for his sacrifices for the nation and her people. And, perhaps, this may now begin to happen.

Achmad Mochtar was executed by the Japanese in 1945. His beheading was to perpetuate a cover-up of a failed Japanese experiment that resulted in the deaths of some 900 Indonesian forced laborers. The experiment was the testing of a tetanus vaccine. The wide-scale experiment was performed on the 900 Indonesians to test whether the vaccine was safe before it would be administered to Japanese troops.

Mochtar was one of Indonesia's greatest scientists and was held in such high regard that he became head of the Eijkman Institute of Medical Research. Mochtar and his associates were working on medical research that was also looking at the possibility of creating and administering a tetanus vaccine. However, it is clear that the vaccine that poisoned the Indonesian forced laborers was the Japanese one. This is where the story takes a tragic turn for Mochtar and his staff.

In an attempt to cover-up the incident the Japanese quickly blamed Mochtar and the Eijkman Institute. The Japanese arrested all of the Eijkman staff in October 1944. The staff were tortured and mistreated. However, as quickly as they had been arrested, the staff of the Eijkman were released. Mochtar though continued to be held. Mochtar was subsequently beheaded, his body crushed by a steamroller, and his remains tossed into a communal grave.

Research conducted by a clinical research scientist from Oxford University, Kevin Baird, has found that Mochtar had taken the blame for the failed experiment on the proviso that the Japanese released all of his staff.

Achmad Mochtar deserves to be recognised for his sacrifices.

He was a martyr in the true sense of the word, he was a patriot, and a true Indonesian.

Note:
Maybe the president, the parliament and those in high public office in Indonesia could learn a thing or two from the sacrifices of Achmad Mochtar.

Balibo -- The Film -- Banned in Indonesia...

The decision of the Indonesian Film Censorship Board (Lembaga Sensor Film / LSF) to ban the screening of the film Balibo is hardly one for the surprising column. It pretty much was expected, and even more so when the Jakarta Foreign Correspondents Club and the Jakarta International Film Festival (JIFF) both indicated that they were going to screen the film. It certainly was a case of upping the ante.

Well, the LSF responded as expected and banned the film because of the political nature of it, and probably because the film conveys a position that the Indonesian government considers to be lies, a complete fabrication, and a distortion of the truth in the extreme. All of those things mean essentially the same, but they needed repeating in slightly different forms to highlight how seriously the Indonesian government would have been working the LSF to ensure that a ban was forthcoming.

The simple reality here is that the Indonesian position is that the five journalists, who became known as the Balibo Five, were killed in crossfire between Indonesian and Fretilin troops. Whereas, in stark contrast to the official Indonesian position, the film depicts the five being murdered by Indonesian troops under the immediate command of Captain Yunus Yosfiah who went on to reach the rank of general, become a minister, and serve time as a parliamentarian.

These actions were found by the Coroner's Court in NSW to be tantamount to war crimes and worthy of further investigation, and ultimately prosecution.

The Australian Federal Police are committed to completing a war crimes investigation into the deaths of the Balibo Five. So, bilateral tension seems certain to escalate over this matter at some point in the future.

A final point on the issue of censorship. I think the majority of Indonesians are ready enough to cast a critical eye over the film and make judgments as to the content. The idea that the LSF is banning this film because Indonesians are not mature enough to watch and determine for themselves the validity of this film is an insult to all Indonesians.

Oh well.

(Photo from here)

A Test Of The Australian and Indonesian Relationship...

The latest development in the Balibo Five case is sure to be a tester of the relationship between Australia and Indonesia. The latest development is that the Australian Federal Police (AFP) have decided to launch a war crimes investigation into the events surrounding the deaths of five journalists in the East Timorese township of Balibo. To be fair the enquiry must also include the execution of Roger East as well who was ultimately captured and executed on the foreshore of Dili.

It goes without saying that when the investigation became public knowledge that the Indonesian Department of Foreign Affairs did not respond positively. The Indonesians have considered this case a closed one pretty much from the time it happened. The response went along the lines of case closed and we will not be cooperating in any investigation.

Nevertheless, the AFP were between a rock and a hard place considering the findings of the 2007 NSW Coronial Inquest into the deaths which in essence concluded that there was a case to answer, at least for Yunus Yosfiah, and referred the matter to the AFP for investigation.

For Indonesia, and for many in Australia as well, the idea of letting bygones be bygones and focusing on developing a mutually beneficial relationship going forward is more important. Bygones can never truly be bygones until there is at least a sense that justice has prevailed. The Balibo Five and Roger East have not had any justice and neither have their families. In the end justice might in fact reveal that the Balibo Five were the unfortunate victims of an incident where they were caught in the crossfire between Indonesian and Fretilin troops. If that is the case, then so be it. However, if it turns out that the Balibo Five were the victims of an execution that was aimed at preventing them from getting the story of Indonesia's invasion of East Timor out to the world, then justice would entail that the perpetrators of the execution who remain alive must be brought to trial.

For me, there is no reason why a mature bilateral relationship between Australia and Indonesia cannot survive this investigation. The idea that the era of Soeharto has passed, which would seem pretty obvious now the man is dead, and that Indonesia is a different place to what it was in 1975, albeit true, does not hold water when it comes to justice. What happened in East Timor and the Balibo Five needs to be known, just because Soeharto is dead and Indonesia is a different place does not mean that the truth of these events should be swept under the carpet. The tribunals in Cambodia are testament to the need for justice to be given a chance.

In many ways there are arguments beyond just the Balibo Five that what occurred in East Timor, the now independent Timor Leste, were crimes of such a magnitude that an international tribunal is warranted. There are arguments to be made for genocide, crimes against humanity, and war crimes, Even though the genocide of the East Timorese might be debatable and may not be on the scale of the holocaust of the Jews during the second world war, a genocide is a genocide on whatever scale.

The allegations must be pursued until the truth is determined.

I will undoubtedly write on this subject again as it contains all the issues that are important to me both personally and professionally; Australia, Indonesia, and the pursuit of justice.

Radovan Karadzic -- Captured

It is about time that this man was caught and the world has the chance to see this man tried for his (alleged) crimes. Radovan Karadzic has thwarted efforts at capture for such a long time. He has for all intents and purposes been on the run in plain sight for the last 13 years. Early reports are suggesting that he has been living in the open and not in hiding. In fact these reports are indicating that apart from growing some facial hair and looking noticeable older, he was working in a clinic as some kind of alternative health guru in Belgrade.

The Bosnian Serb leader is the most notorious and the highest profile of the genocide, war crimes, and crimes against humanity suspects being hunted by the International Criminal Tribunal for the Former Yugoslavia (ICTY). The capture of Karadzic must give hope that the remaining suspects will also be captured in due course and hopefully sooner rather than later.

Karadzic is the man of who it is claimed is responsible for the inciting of vicious racial hatred and ordering a good deal of the worst horrors of the Bosnian conflict. It is a good thing that this individual is now no longer a free man.

The trial will be interesting as it seems that in the Milosevic style, he is going to represent himself.

There is so much more I could write on this and may be I will a some point in the future.

The Balibo Five -- Now That He Is PM...

Now that Kevin Rudd has graduated from Opposition Spokesperson on Foreign Affairs, to leader of the Opposition, and now to Prime Minister is the Prime Minister going to follow through to its logical conclusion his previous statements relating to the Balibo Five.

The Prime Minister is on the record making statements with respect to the findings of the NSW Deputy Coroner, Dorelle Pinch, late in 2007. The Deputy State Coroner had found that the Balibo Five had been intentionally murdered and not killed in the cross-fire as claimed by Indonesian officials. Pinch then went on to forward the file to the Attorney General with a recommendation that at least two individuals, Christoforus Da Silva and Captain Yunus Yosfiah, be indicted and prosecuted for the commission of war crimes.

Yosfiah was a Captain at the time, but he went on to make the rank of Major General and became the Minister of Communication in the Habibe Government. He stands accused of being the man responsible for issuing the kill orders and he was the ranking officer on the scene at the time.

So, what did the now PM say when he was not PM?

"This is a very disturbing conclusion by the Coroner concerning the fate of the Balibo Five back in 1975." And "I believe this has to be taken through to its logical conclusion. I also believe those responsible should be held to account." Well, with the findings of the Deputy State Coroner in the hands of the Attorney General do you think that the PM has come out and made a public pronouncement that the Attorney General has been instructed to draw up the indictments, issue the arrest warrants, liaise with Interpol, and contact the Indonesian government about arresting the alleged perpetrators for prosecution. No way!

However, this may change if the Commonwealth Director of Public Prosecutions (CDPP) makes a recommendation that an indictment must be issued. The ball will then be firmly in the court of the Attorney General and the PM to ante up and bite the bullet one way or the other.

The reason this never became huge news in Indonesia is that the Indonesian government does not believe that Australia has the courage of its convictions to pursue this and risk good bilateral relations with Indonesia. This is at a time where the rumor and innuendo is that the PM as a result of his past as a Diplomat in China and his Mandarin skills is promoting Australia's relationship with China in preference to any ongoing relationship with Indonesia. This was not entirely unexpected and in any event even the PM would have to acknowledge that the relationship with Indonesia is an important one.

The PM has allegedly been a staunch supporter of maintaining ties with the Indonesian military even when almost every one else was moving away from any kind of relationship. This has some negative implications as to whether the PM will have the testicular fortitude to follow through on his earlier statements that the Balibo Five case should be followed through to its logical conclusion, which to my mind is prosecution!

The Lombok Security Treaty of 2006 covers issues of law enforcement and the Extradition Treaty covers the matter of moving a person or persons for prosecution. The recent discussion on prisoner transfer are likely to bear fruit in the future and allow for the transfer of prisoners between Indonesia and Australia for the purposes of those prisoners serving out their respective sentences in their own land! The point here though is to highlight that any agreement imposes rights and obligations on both parties to the agreement. These rights and obligations must be lived up to if the agreements are to ever be truly effective.

The real test comes when an indictment is handed down and arrest warrants are issued. These issues will only intensify once an extradition request is lodged. Indonesia, as could Australia if the circumstances were reversed, refuse the extradition application. However, there would be a requirement that the Indonesian court system prosecute the matter. If the final and binding outcomes of the trials that resulted from the violence in Timor Leste in 1999 is any precursor to the outcome, then the trials will be a whitewash and no convictions are likely. This would be a very unsavoury end to a very unsavoury incident.

The reality is that two nation States, both democracies, must be able to overcome their differences on this matter and prosecute the alleged perpetrators. If the defendants are not guilty then let the process determine that. Equally, if they are then let the process determine that as well. If Australia does move down this path then it is likely to see considerable support come from other States seeking a resolution to this.

Indonesia should not see this as offering up some sacrificial lamb to the west, although this is how it will be portrayed, but rather as a means of showing to the world that Indonesia is serious about redressing the wrongs of the past, that it is a maturing democracy, and that it is prepared to deal with these matters as a member of the international community. This admittedly would be considerably easier if the States making the claims that Indonesia step up to the plate had spotless records themselves (but that is another post for another time)!

Death Penalty for al-Qaeda 'Terrorists'

The Military Tribunals to be held and Guantanamo Bay has seen the Prosecutors list six detainees that have now been charged and indicted with conspiracy, murder in violation of the laws of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property, terrorism, and material support for terrorism. Four were also charged with hijacking or hazarding an aircraft.

The six are:

• Khalid Sheikh Mohammed, the alleged mastermind;
• Walid bin Attash, who allegedly trained two hijackers;
• Ramzi bin al-Shibh, an alleged would-be hijacker but denied a visa to enter US;
• Ali Abd al-Aziz Ali, alleged financier of the plot;
• Mustafa Ahmed al-Hawsawi, who allegedly provided material support (money and clothes); and
• Mohammed al-Qahtani, the alleged 20th hijacker

The US military has said that the hearings are to be held in a manner that will allow the defense to have access to and contest all of the evidence that the prosecution intends to adduce before the tribunal.

This would seem to be contrary to earlier statements and attempts in other similar cases where the US government has tried to claim among other things the necessity to keep some evidence secret as revealing its source will directly impact on national security. It seems unlikely that the prosecution would not be attempting the same methods to circumvent traditional rules of evidence and the rights to a fair trial in these cases as well.

The defendants have the right to appeal and this process would ultimately lead to the US Supreme Court. However, the issue that is most likely to be the subject of appeal is any confessions from the defendants that are admitted into evidence. By the US government's own admission they tortured Khalid Sheik Mohammed through the use of waterboarding (simulated drowning) and it is likely to be submitted by the defense that the US government permitted the use of 'enhanced' interrogation techniques against the others.

Enhanced interrogation techniques here must be understood to be treatment that borders on torture, or perhaps even falls within the gambit of torture, but under some suspect White House Counsel or US Justice Department memo that states that the President may authorize such treatment to be carried out.

The US government has backed away from these memos publicly but whether it has done so in practice is unclear. The US government will maintain that all the interrogation techniques that the used at the time were legal at that time and were therefore valid. In essence, even if these techniques have since been declared illegal, invalid, or have become of quesionable legality, it does not matter because at the time they were legal under US law.

My early posts clearly indicate that I am not for the death penalty. I am for justice! Terrorists need to be punished and they should rot in jail for the rest of their natural lives. But justice must not only be seen to be done but must be done. Therefore, it is crucial that the process be credible, be justifiable, and be legal! Without this any conviction would be a hollow one and the imposition of the death penalty unjustifiable.

I accept international law allows for the death penalty to be imposed in death penalty states, but the process must always be above reproach. If the State is going to sanction the killing of human beings then the process must evidence that all opportunites were afforded to the defense to make and state their case.

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.