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Saul, Ben --- "Prosecuting war Crimes at Balibo Under Australian Law; The Killing of Five Journalists in East Timor by Indonesia" [2009] SydLawRw 3; (2009) 31(1) Sydney Law Review 83

[1]

* Director, Sydney Centre for International Law, Faculty of Law, University of Sydney. I am grateful for the research assistance of Catherine Teo, Matthew O’Sullivan, Lorraine Hui, John Tipple, Oscar McLaren, Mina Chiu and Sally Johnston, for discussions with Mark Tedeschi QC, Robert Dubler SC and Dr Clinton Fernandes, and for comments by two anonymous referees. As a barrister, I provided legal opinions on the Balibo killings to the Media Entertainment and Arts Alliance and to the Australian Coalition for Justice in East Timor, and both opinions were tabled at the Inquest.

1 See Desmond Ball and Hamish McDonald, Death in Balibo, Lies in Canberra (2000).

[2]See Inquest into the Death of Brian Raymond Peters (Unreported, Coroner’s Court of New South Wales, Magistrate Pinch, 16 November 2007) at 70–4 (‘Peters Inquest’).

[3]Peters Inquest (2007) at 75–100.

[t]

[5]In 2001, UN Transitional Administration in East Timor (UNTAET) investigators sought arrest warrants in relation to the Balibo killings for Mohammad Yunus Yosfiah, Christoforus da Silva, and Domingos Bere: Trio sought for 1975 killings of journalists (3 February 2001) BBC News Online <http://news.bbc.co.uk/1/hi/uk/1151463.stm> accessed 11 June 2008. The Indonesian Attorney-General denied the request in 2001 of the UN Special Representative in East Timor, Sérgio Vieira de Mello, to interview nine suspects in Indonesia. The Commission for Reception, Truth and Reconciliation in East Timor also subsequently urged further investigation of the killings, but Indonesian cooperation has not been forthcoming.

[6]By Eli Lauterpacht, the Australian Government’s legal adviser in 1976: see National Archives of Australia: Department of Foreign Affairs; A10461, Correspondence files, two number series with ‘LA’ prefix, 1975-1977; LA5/2, Consular Miscellaneous – Legal Adviser – Timor – five journalists, 1976; note to Assistant Secretary, South East Asia, Department of Foreign Affairs from Eli Lauterpacht (Legal Adviser), “Timor: Journalists – Legal Notes”, 20 May 1976, National Archives of Australia, A104461/3 (released September 2000) <http://naa12.naa.gov.au/scripts/ItemDetail.asp?M=0 & B=4151548> accessed 20 June 2008.

[7]Peters Inquest (2007) at 4, 6.

[8]Peters Inquest (2007) at 5.

[9]Karen Michelmore, Official demands apology over Balibo (30 May 2007) The Australian Online <www.theaustralian.news.com.au/story/0,20867,21819139-1702,00.html> accessed 11 June 2008.

[10]Foreign States Immunities Act 1988 (Cth) s 3(3).

[11]The essential rationales of State immunity: The Schooner Exchange v McFaddon, 11 US [1812] USSC 15; (7 Cranch) 116 (1812).

[12]Peters Inquest (2007) at 129.

[13]Peters Inquest (2007) at 130.

[14]See, for example the Secret Australian Eyes Only Priority Cables from the Australian Embassy in Jakarta to Canberra of 13, 15 and 16 October 1975: National Archives of Australia: Australian Embassy, Republic of Indonesia [Djkarta/Jakarta]; A10463, Correspondence files, multiple number series, 1964– ; 801/13/1 PART 15, Jakarta, Portuguese Timor, 11 Oct 1975–3 Nov 1975; cablegram to Canberra ‘Portuguese Timor’ 13 October 1975 (Ref No O.JA2376), cablegram to Canberra from Ambassador Woolcott ‘Portuguese Timor’ 15 October 1975 (Ref No O.JA2432) and cablegram to Canberra from Ambassador Woolcott ‘Portuguese Timor’ 16 October 1975, (Ref No O.JA2461).

[15]Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 Oct 1950) (‘1949 Fourth Geneva Convention’).

[16]Mark Tedeschi (Counsel Assisting the NSW Coroner), Closing Submissions to the Balibo Inquest, 29 May 2007; Ben Saul, Opinion for the Media Entertainment and Arts Alliance on the International Legal Protection of Journalists, for the NSW Coronial Inquest into Deaths at Balibo, May 2007 (tabled at the Inquest); Ben Saul, Opinion for the Australian Coalition for Transitional Justice in East Timor on Criminal Liability for International Crimes under Australian law in respect of East Timor, May 2007 (tabled at the Inquest).

[17]See, for example Commission for Reception, Truth and Reconciliation in Timor-Leste, Chega! The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste: Executive Summary (2005) at 44 (estimating 103 000 deaths between 1975 and 1999) and 108–111 (detailing violations of humanitarian law specifically); see also United Nations Transitional Administration in East Timor (UNTAET) Regulation No 2000/11 on the Organisation of Courts in East Timor, UNTAET/REG/2000/11 (entered into force 6 March 2000); UNTAET Regulation No 2000/14 Amending Regulation No 2000/11, UNTAET/REG/2000/11 (entered into force 10 May 2000); UNTAET Regulation No 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15 (entered into force 6 June 2000); Kofi Annan, Identical Letters Dated 2000/01/31 from the Secretary-General Addressed to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, UN Docs A/54/726 and S/2000/59 (2000) (containing the ‘Report of the International Commission of Inquiry on East Timor to the Secretary-General’); United Nations Commission on Human Rights, Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor, UN Doc E/CN.4/S-4/CRP.1 (1999); Amnesty International, Indonesia (East Timor): Demand for Justice (1999) (AI-index: ASA 21/191/1999, 28 October 1999); Indonesian Commission on Human Rights investigations; Ben Saul, ‘Was the Conflict in East Timor “Genocide” and Why Does It Matter?’ [2001] MelbJlIntLaw 18; (2001) 2 Melbourne Journal of International Law 477.

[18]Suzannah Linton, ‘Accounting for Atrocities in Indonesia’ [2006] SGYrBkIntLaw 11; (2006) 10 Singapore Year Book of International Law 199; Hikmahanto Juwana, ‘Human Rights in Indonesia’ (2006) 4 Indonesian Journal of International Law 27.

[19]Peters Inquest (2007) at 41.

[20]Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (‘1977 Additional Protocol II’).

[21]Indonesia acceded (without reservation) to the four 1949 Geneva Conventions on 30 September 1958. Portugal signed the four 1949 Geneva Conventions on 11 February 1950 and ratified them on 14 March 1961. A reservation upon signature, limiting the application of common art 3 to civil wars rather than all situations of armed rebellion, was withdrawn by Portugal upon ratification in 1961: Annex A Ratifications, Accessions, Prorogations, etc, Concerning Treaties and International Agreements Registered with the Secretariat of the United Nations: No 973 Geneva Conventions Relative to the Protection of Civilian Persons in Time of War, 394 UNTS 258 (1961).

[22]The existence of an ‘armed conflict’ under humanitarian law (jus in bello) is not dependent on also satisfying the test for an ‘armed attack’ under the law on the use of force (jus ad bellum, including the frameworks of self-defence and collective security).

[23]Jean Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949 (vol I, 1958) at 32.

[24]Even earlier, from late 1974, Indonesia’s Operation Komodo, involving Indonesia’s Intelligence Coordinating Agency (BAKIN) and Indonesian Special Forces (Kopassandha), were involved in intelligence and propaganda operations within Timor in support of Apodeti’s platform of integration with Indonesia: Peters Inquest (2007) at 15.

[25]The NSW Coroner agreed with this assessment: Peters Inquest (2007) at 123. Other jurists also support that date as the commencement of an international armed conflict: see, for example Suzannah Linton, ‘Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor’ [2001] MelbULawRw 5; (2001) 25 Melbourne University Law Review 122.

[26]Evidence to the NSW Coroner suggested that by the end of September 1975, President Suharto had authorised up to 3800 Indonesian soldiers to be deployed in East Timor: Peters Inquest (2007) at 72.

[27]General Murdani told Australian Ambassador Richard Woolcott on 15 October 1975 that Indonesian forces involved were ‘volunteers’: Peters Inquest (2007) at 73.

[28]Peters Inquest (2007) at 18, 115 (such as Rajawali Company B in regular uniforms but without insignia).

[29]Peters Inquest (2007) at 23.

[30]Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War of Land, opened for signature 18 October 1907, [1910] ATS 8, annex art 23(b) (entered into force 26 January 1910) (‘1907 Hague Regulations’); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3, art 37(1) (entered into force 7 December 1978) (‘1977 Additional Protocol I’) (reflecting custom even in 1975).

[31]Peters Inquest (2007) at 123.

[32]See Tedeschi, above n16 at 30.

[33]Peters Inquest (2007) at 123.

[34]See, for example James Dunn, Timor: A People Betrayed (1996) at 203–4.

[35]Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135, art 4(2) (entered into force 21 October 1950) (‘1949 Third Geneva Convention’).

[36]Contrast Commission for Reception, Truth and Reconciliation in Timor-Leste, above n17 at 111 (appearing to regard Fretilin as the resistance movement of Portugal as the administering power and relevant State Party to the Geneva Conventions in international armed conflict).

[37]The ICTY has accepted that complex conflicts may involve parallel international and non-international conflicts in the same territorial space: see Prosecutor v Tadic (Appeals Chamber) Case No IT-94-1-AR72 (2 October 1995) [77] (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (‘Tadic (Appeals Chamber)’).

[38]See, for example Hamdan v Rumsfeld 548 US 557 (2006) at 66–8.

[39]Lauterpacht, above n6 at [4].

[40]Tadic (Appeals Chamber) Case No IT-94-1-AR72 (2 October 1995) [70]. This test has been ‘consistently applied’ by the ICTY: Prosecutor v Limaj, Bala, and Muslin (Trial Chamber II) Case No IT-03-66-T (30 November 2005) [83] (‘Limaj (Trial Chamber II)’).

[41]Prosecutor v Tadic (Trial Chamber) Case No IT-94-1-T (7 May 1997) [562] (‘Tadic (Trial Chamber)’).

[42]Tadic (Trial Chamber) Case No IT-94-1-T (7 May 1997) [562]; see also, for example Rome Statute of the International Criminal Court art 8(2)(d); Limaj (Trial Chamber II) Case No IT-03-66-T (30 November 2005) [87].

[43] Prosecutor v Dyilo (Pre-Trial Chamber I) Case No ICC-01/04-01/06 (29 January 2007) [227]–[237] (Decision on the Confirmation of Charges).

[44]While such factors are listed by the ICRC Commentary (Pictet, above n22 at 49–50) on common art 3 of the Geneva Conventions as relevant to distinguishing non-international armed conflicts from lesser violence, they are not essential conditions: see Tadic (Trial Chamber) Case No IT-94-1-T (7 May 1997) [562]; Limaj (Trial Chamber II) Case No IT-03-66-T (30 November 2005) [85]–[86]. It is well accepted that, as a humanitarian provision, common art 3 should be applied ‘as widely as possible’ (Pictet, above n22 at 50) and should not be restrictively interpreted.

[45]Limaj (Trial Chamber II) Case No IT-03-66-T (30 November 2005) [90].

[46]Limaj (Trial Chamber II) Case No IT-03-66-T (30 November 2005) [90].

[47]A distinction drawn in Ajuri v Israeli Defence Forces Commander of the Judea and Samaria Area [2002] Israel Law Reports 1 at 5 (President Barak, Israeli Supreme Court (High Court of Justice) (Authorised English translation of official case report (HCJ 7015/02) in Hebrew).

[48]Limaj (Trial Chamber II) Case No IT-03-66-T (30 November 2005) [90].

[49]Dunn, above n32 at 258.

[50]Peters Inquest (2007) at 55.

[51]Dunn, above n32 at 157–8, 184.

[52]Id at 184–5.

[53]Id at 158.

[54]Tadic (Appeals Chamber) Case No IT-94-1-AR72 (2 October 1995) [70].

[55]See, for example Peter Trotter, ‘Like Lambs to the Slaughter: The Scope of and Liability for International Crimes in East Timor and the Need for an International Criminal Tribunal’ (2001) 7 New England International & Comparative Law Annual 31.

[56]Dunn, above n33 at 185.

[57]Resolution 384 (1975), SC Res 384, UN SCOR, 1869th mtg, UN Doc S/Res/384 (1975); Resolution 389 (1976), SC Res 389, UN SCOR, 1914th mtg, UN Doc S/Res/389 (1976); Question of Timor, GA Res 3485(XXX), UN GAOR, 30th sess, 2439th plen mtg, UN Doc A/Res/3485(XXX) (1975) (72 votes to 10, with 43 abstentions). The UN General Assembly condemned the occupation as a breach of the 1960 Declaration on the Granting of Independence to Colonial Territories and Peoples. Prior to 1999, seven subsequent resolutions on East Timor had been passed by the UN General Assembly, the last in 1982: see Matthew Jardine, East Timor: Genocide in Paradise (1995) at 36.

[58]In accordance with art 1(3) of the International Covenant on Civil and Political Rights (‘ICCPR’), States ‘having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination’: ICCPR, opened for signature 16 December 1966, 999 UNTS 171, art 1 (entered into force 23 March 1976).

[59]Commission for Reception, Truth and Reconciliation in Timor-Leste, above n17 at 50–3.

[60]Donald Weatherbee, ‘Portuguese Timor: An Indonesian Dilemma’ (1966) 6 Asian Survey 683 at 692.

[61]Australian Minister for Foreign Affairs, Andrew Peacock, Statement of 20 January 1978, cited in ‘Recognition: Australian Practice in International Law’ [1980] AUYrBkIntLaw 12; (1978-80) 8 Australian Year Book of International Law 273 at 279. Australia voted in favour of Question of Timor, GA Res 3485(XXX), UN GAOR, 30th sess, 2439th plen mtg, UN Doc A/Res/3485(XXX) (1975), condemning the Indonesian invasion, but later abstained from voting on Question of Timor, GA Res 31/53, UN GAOR, 31st sess, 85th plen mtg, UN Doc A/Res/31/53 (1976) and Question of East Timor, GA Res 32/34, UN GAOR, 32nd sess, 83rd plen mtg, UN Doc A/Res/32/34 (1977). Australia then voted against Question of East Timor, GA Res 33/39, UN GAOR, 33rd sess, 81st plen mtg, UN Doc A/Res/33/39 (1978) and recognised de jure the incorporation of East Timor into Indonesia on 14 February 1979 as part of seabed boundary negotiations. Australia later concluded the 1989 Timor Gap Treaty with Indonesia on the premise of Indonesian sovereignty over that area.

[62]An unelected ‘Regional Popular Assembly’, appointed by a provisional government of pro-Indonesian political parties (which was established by the Indonesian occupation forces) passed a resolution on 31 May 1976 in favour of East Timor’s integration into Indonesia: see Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995) at 225–30.

[63]Far from protesting, Agreement Between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian), GA Res 1504(XXIV), UN GAOR, 24th sess, 1813th plen mtg, UN Doc No A/Res/2504(XXIV) (1969) noted a report on the “act of free choice” and, at [2], appreciated any assistance from international organisations ‘to the Government of Indonesia in its efforts to promote the economic and social development of West Irian’.

[64]East Timor (Portugal v Australia) [1995] ICJ Rep 90 at 106.

[65]ICCPR, opened for signature 16 December 1966, 999 UNTS 171, art 1 (entered into force 23 March 1976).

[66]Cassese, above n62 at 151–2, although it may authorised in response to forcible suppression of the right by a colonial State: at 151, 153, 198.

[67]Dunn, above n33 at 186. Dunn, a former Australian Consul to East Timor, reported immediately prior to the declaration of independence that Fretilin’s ‘administrative structure had obvious shortcomings, but it clearly enjoyed widespread support or co-operation from the population, including many former UDT supporters.’

[68]Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595 at 643–4 (Separate Opinion of Judge Weeramantry) (‘Application of the Genocide Convention (Preliminary Objections)’); Vienna Convention on Succession of States in Respect of Treaties, opened for signature 23 August 1978, 1946 UNTS 3, art 16 (entered into force 6 November 1996). In addition, 1977 Additional Protocol I, opened for signature 8 June 1977, 1125 UNTS 3, art 1(4) (entered into force 7 December 1978), recognising certain self-determination movements as parties to international armed conflicts, also had no application to a conflict in 1975 which pre-dated that Protocol’s entry into force.

[69]See, for example Summary Record of the 1178th Meeting (2nd Part) of the Human Rights Committee, held at the Palais de Nations, Geneva, on Monday 19 October 1992, United Nations Human Rights Committtee, 46th sess, 1178th mtg, UN Doc CCPR/C/SR/1178/Add1 (1992); Application of the Genocide Convention (Preliminary Objections) [1996] ICJ Rep 595 at 645, 651, 654–5 (Separate Opinion of Judge Weeramantry).

[70]Adam Roberts and Richard Guelff (eds), Documents on the Laws of War (2000) at 196: ‘In view of the large number of states parties … and the status which the Conventions have acquired in the international community, the Conventions (at least in large part) are widely regarded as customary international law’.

[71]Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153 at 161 (Wilcox J) and 173 (Whitlam J).

[72]International Convention with Respect to the Laws and Customs of War on Land, opened for signature 29 July 1899, [1901] ATS 131, annex art 13 (entered into force 4 September 1900).

[73]Including the 1907 Hague Regulations, opened for signature 18 October 1907, [1910] ATS 8, annex art 13 (entered into force 26 January 1910), and the Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 27 July 1929, [1931] ATS 7, art 81 (entered into force 19 June 1931); as well as in older evidence of state practice such as the Institute of International Law, The Laws of War on Land (1880), art 22 (‘Oxford Manual of 1880’), and the Instructions for the Government of Armies of the United States in the Field (Lieber Code) (1863), art 50, from the American civil war.

[74]Jean de Preux, Commentary on the Geneva Conventions of 12 August 1949 (vol III, 1960) at 65.

[75]Lauterpacht, above n6 at [4]–[5].

[76]William Orme, ‘Journalists, Protection of’ in Roy Gutman and David Rieff, Crimes of War: What the Public Should Know (1999) at 219.

[77]Yves Sandoz et al, Commentary on the Additional Protocols I and II of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC and Martinus Nijhoff, Geneva, 1987), para 3269.

[78]As the NSW Coroner noted, Peters Inquest (2007) at 58: ‘On the basis of the evidence before me the journalists themselves bear the responsibility for being alone in Balibo at the time the Indonesian and Partisan military forces entered.’ On the facts, see Peters Inquest (2007) at 48–57.

[79]Peters Inquest (2007) at 22.

[80]The customary rule applicable to international armed conflict in 1975 was subsequently codified in 1977 Additional Protocol I, opened for signature 8 June 1977, 1125 UNTS 3, art 51(3) (entered into force 7 December 1978).

[81]Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, (vol 1, 2005) at 22.

[82]Alexandre Balguy-Gallois, ‘The Protection of Journalists and News Media Personnel in Armed Conflict’ (2004) 86 International Review of the Red Cross 37 (French original).

[83]International Criminal Tribunal for the former Yugoslavia, Office of the Prosecutor, Final Report to the Prosecutor on the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000) at [47], [55], [74]–[76]; see also Reporters Without Borders, Propaganda-Oriented Media and International Humanitarian Law: Legal Memorandum (2003) (prepared by Alexandre Balguy-Gallois).

[84]Peters Inquest (2007) at 124.

[85]Peters Inquest (2007) at 115.

[86]Peters Inquest (2007) at 124.

[87]United States v O’Neal 36 CMR 189 (1966) at 191 (United States Court of Military Appeal).

[88]Oscar Uhler and Henri Coursier, Commentary on the Geneva Conventions of 12 August 1949 (vol IV, 1958) at 47.

[89]1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, art 4 (entered into force 21 October 1951).

[90]Uhler and Coursier, above n88 at 48.

[91]1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, arts 146, 147 (entered into force 21 October 1951), and including at art 147: ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.’

[92]1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, art 146 (entered into force 21 October 1951).

[93]1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, art 146 (entered into force 21 October 1951).

[94]1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, art 146 (entered into force 21 October 1951).

[95]1907 Hague Regulations, opened for signature 18 October 1907, [1910] ATS 8, art 42 (entered into force 26 January 1910) (also reflecting customary law).

[96]1949 Third Geneva Convention, opened for signature 12 August 1949, 75 UNTS 135, arts 129–130 (entered into force 21 October 1950).

[97]Prosecutor v Delalic, Mucic, Delic & Landzo (Trial Chamber) Case No IT-96-21-T (16 November 1998) [424], [431] (‘Celebici Case (Trial Chamber)’).

[98]Celebici Case (Trial Chamber) Case No IT-96-21-T (16 November 1998) [437]–[439]; see also Prosecutor v Blaškic, IT-95-14-T (3 March 2000) [153]; Prosecutor v Delacic, Mucic, Delic & Landzo (Appeal Chamber) Case No IT-96-21-A (20 February 2001) [422] (‘Celebici Case (Appeals Chamber)’).

[99]Kriangsak Kittichaisaree, International Criminal Law (2001) at 143.

[100]See, for example Elements of Crimes, Official Journal of the International Criminal Court, ICC Doc No ICC-ASP/1/3 (part II-B) (2002), art 8(2)(a)(i) (‘War crime of wilful killing’) (adopted by the Assembly of State Parties to the Rome Statute of the International Criminal Court on 9 September 2002, entered into force on that date).

[101]Peters Inquest (2007) at 124.

[102]Peters Inquest (2007) at 47.

[103]Peters Inquest (2007) at 111.

[104]Tadić (Trial Chamber) Case No IT–94–1–T (7 May 1997) [573]; see also Tadić (Appeal Chamber) Case No IT-94-1-AR72 (2 October 1995) [70]; Prosecutor v Kunarac, Kovac & Vukovic (Trial Chamber) Case No IT–96–23–T & IT–96–23/1–T (22 February 2001) [402]; Prosecutor v Naletilić & Martinović (Trial Chamber) Case No IT-98-34-T (31 March 2003) [225].

[105]Tadić (Trial Chamber) Case No IT–94–1–T (7 May 1997) [573].

[106]Tadić (Trial Chamber) Case No IT–94–1–T (7 May 1997) [573].

[107]Peters Inquest (2007) at 123; Tedeschi, above n15 at 31: ‘This mental element is the essential ingredient that distinguishes a war crime from a domestic crime that is incidentally committed by a member of an armed force against a civilian during a time of conflict.’

[108]Geneva Conventions Act 1957-1973 (Cth) s 7(2)(d) (reprinted as at 19 December 1973).

[109]Geneva Conventions Act 1957-1973 (Cth) s 7(4).

[110]Death Penalty Abolition Act 1973 (Cth) ss 45.

[111]See, for example 1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, art 146 (entered into force 21 October 1951): ‘The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.’

[112]Geneva Conventions Act 1957–1973 (Cth) s 6(2).

[113]Geneva Conventions Act 1957–1973 (Cth) s 7(3).

[114]See, for example 1949 Fourth Geneva Convention, opened for signature 12 August 1949, 79 UNTS 287, art 146 (entered into force 21 October 1951): ‘Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.’

[115]There remains a controversy whether it is a right of, or a duty on, a third State so to act: Gerhard Werle, Principles of International Criminal Law (2005) at 63–4.

[116]R v Bow Street Magistrate; Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [2000] 1 AC 147.

[117]Doubts were incidentally expressed in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3 at 76 (Joint Separate Opinion of Judges Higgins, Kooimans & Buergenthal) and at 40–2 (Separate Opinion of Judge Guillaume).

[118]Acts Interpretation Act 1901 (Cth) s 8.

[119]The Explanatory Memorandum, International Criminal Court (Consequential Amendments) Bill 2002 (Cth) at 20 confirms the Parliament’s intention that war crimes committed under Part II of the Geneva Conventions Act 1957 (Cth) prior to its repeal in 2002 can still be prosecuted under that Act as it was then in force.

[120]Geneva Conventions Act 1957-1973 (Cth) s 10(2) provides: ‘The trial on indictment of an offence against this Act, not being an offence committed within Australia, may be held in any State and the trial on indictment of such an offence committed in a Territory may be held in any State or in that Territory.’ Those courts must be Supreme Courts: s 10(5). The jurisdiction of State Supreme Courts is subject to the conditions and restrictions in s 39(2)(a) and (c) of the Judiciary Act 1903-1955 (Cth) and that Act applies generally to the war crimes offences: Geneva Conventions Act 1957-1973 (Cth) s 10(3)–(4).

[121]Geneva Conventions Act 1957-1973 (Cth) s 7(6).

[122]Despite prosecutions proceeding in State and Territory courts, they are in the exercise of Federal criminal jurisdiction and the use of the singular (‘the’ Attorney-General), in a sub-section following a reference to the Governor-General (Geneva Conventions Act 1957–1973 (Cth) s 7(5)) further indicate that the Commonwealth Attorney-General must issue any indictment.

[123]Geneva Conventions Act 1957–1973 (Cth) s 8.

[124]Director of Public Prosecutions Act 1983 (Cth) ss 6, 9.

[125]Crimes Act 1914 (Cth) s 13.

[126]Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 at 477 (Lord Wilberforce).

[127]Director of Public Prosecutions Act 1983 (Cth) s 9(5).

[128]Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process (2nd ed, 1990) at [4.10].

[129]Extradition Act 1988 (Cth) s 40.

[130]Extradition Treaty between Australia and the Republic of Indonesia, opened for signature 22 April 1992, [1995] ATS 7, art 11 (entered into force on 21 January 1995) (‘Extradition Treaty’).

[131]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 2(1) (entered into force 21 January 1995).

[132]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 2(1)(1) (entered into force 21 January 1995); see also ‘manslaughter’ at art 2(1)(2).

[133]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 2(3)(a) (entered into force 21 January 1995).

[134]In 1971, Indonesia reported to the International Committee of the Red Cross that it had not taken any legislative action to repress grave breaches of the 1949 Geneva Conventions: International Committee of the Red Cross, ‘Respect of the Geneva Conventions: Measures Taken to Repress Violations’ (Reports presented at the 20th International Conference of the Red Cross, Vienna, 1965 and 21st International Conference of the Red Cross, Istanbul, 1969) (reprinted 1971). While Indonesia has legislation implementing the 1949 Geneva Conventions, it does not criminalise grave breaches: Law 59/1958 Concerning the Ratification by the Republic of Indonesia of all the Geneva Conventions of 12 August 1949 (30 September 1958).

[135]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 9(1)(b) (entered into force 21 January 1995). Since 1934 there was also a Military Criminal Law Book for Indonesia in force, inherited from the Dutch colonial power: Captain Djaelani, ‘The Military Law System in Indonesia’ (1973) 59 Military Law Review 177 at 177. The Book creates criminal offences for military personnel, but as a pre-1949 publication (although reissued in 1949), it did not refer to grave breaches of the 1949 Geneva Conventions as such. On Indonesian military law and jurisdiction, see Linton, above n18 at 6–7.

[136]Umesh Kadam, ‘ICRC Report of International Humanitarian Law Activities in Asia-Pacific during 2005’ (2005) 1 Asia-Pacific Yearbook of International Humanitarian Law 144 at 153.

[137]An English translation of the Indonesian Penal Code, as enacted in 1952 and in force to 1976, was published by the Indonesian Ministry of Justice in 1982: Directorate-General of Law and Legislation Ministry of Justice (ed), Penal Code of Indonesia (1982) United Nations Human Rights Commission <http://www.unhcr.org/refworld/docid/3ffbcee24.html> accessed 12 February 2009 (‘Indonesian Penal Code’).

[138]Indonesian Penal Code art 2.

[139]Indonesian Penal Code art 340.

[140]Indonesian Penal Code arts 338–9.

[141]Indonesian Penal Code art 4.

[142]Indonesian Penal Code art 5(1).

[143]Indonesian Penal Code art 7.

[144]Indonesian Penal Code art 92(3).

[145]Indonesian Penal Code arts 413–37.

[146]Indonesian Penal Code art 5(1).

[147]Weatherbee, above n60 at 686: ‘By Portuguese law Timor is an integral part of the Portuguese Republic with the administrative status of an Overseas Province’.

[148]Indonesian Penal Code art 51(2).

[149]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 2(4) (entered into force 21 January 1995).

[150]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 1(2) (entered into force 21 January 1995).

[151]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 5(1), (2) (entered into force 21 January 1995).

[152]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 5(3) (entered into force 21 January 1995).

[153]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 4(1), (2) (entered into force 21 January 1995).

[154]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 4(3) (entered into force 21 January 1995).

[155]Christine van den Wijngaert, The Political Offence Exception to Extradition: the Delicate Problem of Balancing the Rights of the Individual and the International Public Order (1980) at 191; Ivan Shearer, Starke’s International Law (11th ed, 1994) at 320; Ivor Stanbrook and Clive Stanbrook, Extradition: Law and Practice (2nd ed, 2000) at 68.

[156]Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277, art 7 (entered into force 12 January 1951).

[157]Uhler and Coursier, above n88 at 593.

[158]Ellis v O’Dea, Record No 441 SS/1990 (30 Jul 1990), transcript, 36; Della Savia, Swiss Federal Tribunal (26 Nov 1969) 95 ATF I, 469; Morlacci, Swiss Federal Tribunal (12 Dec 1975), 101 ATF Ia, 605; Re Extradition of Mahmoud Abed Atta 706 F Supp 1032 (1989), aff’d [1990] USCA2 718; 910 F 2d 1063 (1990).

[159]McGlinchey v Wren [1982] IR 154; Shannon v Fanning [1984] IR 548; Folkerts v Public Prosecutor (1978) 74 ILR 498; Kavic, Bjelanovic & Arsenijevic 78 ATF, I, 39 (30 April 1952) (Switzerland); Eain v Wilkes [1981] USCA7 111; 641 F 2d 504 (1981), aff’d 454 US 894 (1981); Artukovic v Rison 628 F Supp 1370 (1986), aff’d [1986] USCA9 264; 784 F 2d 1354 (1986); In re Nappi (1952) 19 Int L Rep 375; Ktir v Ministère Public Fédéral (1961) 34 Int L Rep 123; Re Kelly and MacFarlane [1987] Nederlanse Jurisprudentie 931; Gil v Canada [1995] 1 FC 508.

[160]Law 1/1979 on Extradition art 5.

[161]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 9(a)–(b) (entered into force 21 January 1995).

[162]See Djaelani, above n135 referring to the Military Criminal Law Book for Indonesia (1934) and the Military Disciplinary Law Book for Indonesia (1934), as supplemented by the Military Disciplinary Regulation (1949). While military criminal law operated as lex specialis to the civilian criminal law (at 178), that does not mean that liability ‘only’ arose under military law as required for the refusal of extradition under art 9(1)(b) of the 1992 Extradition Treaty.

[163]Indonesian Penal Code art 78(1).

[164]Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, opened for signature 26 November 1969, 754 UNTS 73 (entered into force 11 November 1970).

[165]Extradition Treaty, opened for signature 22 April 1992, [1995] ATS 7, art 9(b), (d) (entered into force 21 January 1995).

[166]Foreign States Immunities Act 1985 (Cth) s 9.

[167]Foreign States Immunities Act 1985 (Cth) s 3.

[168]Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984) at 100–1.

[169]Foreign States Immunities Act 1985 (Cth) s 36.

[170]Hazel Fox, The Law of State Immunity (2002) at 503.

[171]Foreign States Immunities Act 1985 (Cth) s 3(3).

[172]Transaero Inc v La Fuerza Aerea Boliviana [1994] USCADC 330; 30 F 3d 148 (1984) at 153, citing United States v Curtiss-Wright Export Corp [1936] USSC 159; 299 US 304 (1936) at 318.

[173]Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270 at 281 (Lord Bingham); see also at 300–1 (Lord Hoffman).

[174]Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984) at 16, citing: Grunfeld v United States of America [1968] 3 NSWR 36 at 38 (Street J); Rahimtoola v Nizam of Hyderabad [1958] AC 379; Intpro Properties (UK) Ltd v Sauvel [1983] 2 WLR 1; see also Frazier v Hanover Bank 119 NYS 2d 319 (1953) at 322.

[175]Fox, above n169 at 20.

[176]R v Bow Street Magistrate; Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [2000] 1 AC 147 (‘Pinochet (No 3)’).

[177]Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270 at 286 (Lord Bingham).

[178]Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 42 (Brennan J).

[179]S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 492 (per Gleeson CJ); see also Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68–9 (Latham CJ).

[180]Banco Nacional de Cuba v. Sabbatino [1964] USSC 48; 376 US 398 (1964) at 401; see also Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25; (1988) 165 CLR 30 at 40: ‘in general, courts will not adjudicate upon the validity of acts and transactions of a foreign State within that sovereign’s own territory.’

[181]Underhill v Hernandez [1897] USSC 197; 168 US 250 (1897) at 252 (Fuller CJ).

[182]See, for example Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 (Lord Cross); Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19; [2002] 2 AC 883 at 1080–1 (Lord Nicholls), 1101 (Lord Steyn) and 1108 (Lord Hope); Hicks v Ruddock (2007) 156 FCR 574 at [14]–[34] (Justice Tamberlin).

[183]See, for example Buttes Gas & Oil Co v Hammer [1982] AC 888; Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 83; (2003) 128 FCR 507.

[184]Buttes Gas & Oil Co v Hammer [1982] AC 888 at 938 (Lord Wilberforce).

[185]Ibid.

[186]Ibid.

[187]Omar v Harvey [2007] USCADC 30; 479 F 3d 1 at 11.

[188]Journalists and Media Staff Casualties 2007 (2007) International News Safety Institute, <http://www.newssafety.com/casualties/2007.htm> accessed 11 June 2008.

[189]Journalists and Media Staff Casualties: Iraq (2008) International News Safety Institute <http://www.newssafety.com/casualties/iraq.htm> accessed 11 June 2008.

[190]Media Safety: Indonesia (2007) International News Safety Institute <http://www.newssafety.com/hotspots/countries/indonesiax.htm#Media%20Safety> accessed 8 March 2007; Media Safety: Timor Leste (2007) International News Safety Institute <http://www.newssafety.com/hotspots/countries/timorlestex.htm#Media%20Safety> accessed 6 April 2007.

[191]Resolution 1738 (2006), UN SCOR, 61st sess, 5613th mtg, [1]–[9], UN Doc S/Res/1738 (2006). For an overview of international attempts to protect journalists, see Michael Kirby and Lawrence Jackson, ‘International Humanitarian Law and the Protection of Media Personnel’ (1986) 9 University of NSW Law Journal (1)1; Dylan Howard, ‘Remaking the Pen Mightier than the Sword: An Evaluation of the Growing Need for the International Protection of Journalists’ (2002) 30 Georgia Journal of International and Comparative Law 505; Amit Mukherjee, ‘Protection of Journalists Under International Humanitarian Law’ (1995) 17 Communications and the Law (2)27.

[192]Ingrid Detter, The Law of War (2nd ed, 2000) at 323.