Revisiting Balibo and the Case for Australia to Prosecute War Crimes

On 16 October 1975, the Indonesian military murdered five journalists at Balibo, in the former colonial territory of Portuguese Timor. Two of them, Greg Shackleton and Tony Stewart, were Australian citizens. All five were based in Australia. Within a short time, the Australian government knew that they had been killed. It kept that information secret for many years, asserting national security. In 2007, a coronial enquiry in New South Wales found that the journalists were unarmed, dressed in civilian clothes, and had their hands raised in the universally recognised gesture of surrender. They were shot and/or stabbed to death by the Indonesian military. Since the killings were associated with, and occurred in the context of, an international conflict, the coroner referred the case to federal authorities for possible war crime prosecutions.

Then Opposition Leader, Kevin Rudd, reacted to the Coroner’s decision by saying, a week before the 2007 election, “This is a very disturbing conclusion by the coroner concerning the fate of the Balibo Five back in 1975. I believe this has to be taken through to its logical conclusion. I also believe those responsible should be held to account… My attitude to this is dead set hardline. I’ve read a bit about what happened in Balibo, I’ve been to Balibo, walked up there, I’ve seen the fort, I’ve seen where these blokes lost their lives. You can’t just sweep this to one side.” When Labor came to office a week later, however, very little happened. It was only after the movie, Balibo, directed by Robert Connolly, was released in mid-2009 that the Australian Federal Police announced that it had begun a formal investigation into the killings. Australian jurisdiction to prosecute war crimes arises from the Geneva Conventions Act 1957 (Cth), which provides that:

A person who, in Australia or elsewhere, commits, or aids, abets or procures the commission by another person of, a grave breach of any of the Conventions is guilty of an indictable offence.

War crimes can be prosecuted wherever they occur and regardless of the nationality of the victims or perpetrators. There is no statute of limitations.

There are three legal considerations in such cases.

The first is that there must be an international armed conflict. The Indonesian military’s seizure of the village of Batugade on 7 October 1975 triggered an international armed conflict to which the 1949 Geneva Conventions applied. All relevant national parties (Australia, Indonesia, and Portugal) were signatories to the Geneva Conventions for the duration of the conflict.

The second legal consideration is that the victims must be ‘protected persons.’ Persons are protected under article 4 of the 1949 Fourth Geneva Convention if they ‘at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.’ The five murdered journalists were ‘protected persons’ because they were unarmed and attempted to surrender.

The third legal consideration is ‘nexus.’ Not every murder is a war crime — to satisfy this requirement the murder in question must be committed in the context of and associated with an armed conflict. To show a nexus it is enough to show that the offence was closely related to the armed conflict as a whole, or committed in the course of hostilities. The journalists were murdered because the Indonesian military had been conducting a deniable operation in order to generate atrocities that could be falsely attributed to pro-independence East Timorese forces. If the journalists had obtained film footage of the military campaign and conveyed it to the outside world, the Indonesian military’s cover story would have been blown. That is why they were deliberately targeted. The nexus requirement has also been satisfied.

But in leaked US cables obtained by Wikileaks and released exclusively to The Age, an Australian diplomat is reported to have told US officials that he had ‘reviewed the coroner’s report with the Indonesian government.’ He had assured his Indonesian interlocutors that Australia wanted to work with the Indonesian government carefully on the matter. The Indonesians replied that they also wanted ‘to help manage’ the issue. One wonders whether – in light of these revelations – there has been any interference, directly or indirectly, with an AFP investigation. The Senate Legal and Constitutional Affairs Committee, which has oversight of the AFP, has advised members of the public that it cannot inquire into this matter because it is ‘only able to conduct inquiries in relation to matters specifically referred to [it] by the Senate.’

If Kevin Rudd, now Foreign Minister, still believes the matter ‘has to be taken through to its logical conclusion, then the Foreign Minister and his colleagues the Attorney-General and the Minister for Home Affairs, who have oversight of war crimes investigations, need to explain to the Australian public why a coronial referral from November 2007 has had no noticeable result more than three years later.

Dr Clinton Fernandes is an Associate Professor at the University of New South Wales. He is author of ‘The Independence of East Timor: Multidimensional Perspectives – Occupations, Resistance and International Political Activism’, published by Sussex Academic Press in 2011