What are 'crimes against humanity'? Can Suharto be brought to trial for them? RICHARD TANTER reports.
Two unexpected events in recent months give hope that former President Suharto may some day be brought to trial for genocide and crimes against humanity, for his part in the anticommunist holocaust in 1965, and for the hundreds of thousands who died after the Indonesian invasion of East Timor.
On May 1, Jean Kambanda, former Prime Minister of Rwanda, pleaded guilty to charges of genocide and crimes against humanity before the United Nations International Criminal Tribunal for Rwanda. Kambanda will probably be sentenced to a maximum of life imprisonment.
On April 30, the United States announced its intention to request that the Security Council establish an International Criminal Tribunal to try Cambodian former Khmer Rouge leaders on charges of genocide and crimes against humanity
I believe that the UN Security Council should appoint a Special Rapporteur or a Committee of Experts to assess prima facie evidence against Suharto and other senior or retired Abri leaders.
The Security Council should then establish an International Criminal Tribunal for Indonesia with a view to trying Suharto and others for the following crimes under existing international legal conventions and customary law:
- Crimes against humanity
- Grave breaches of the Geneva Conventions
- Violations of the laws of war
- Crimes against peace
Three questions need to be answered:
Did Suharto and other senior Indonesian military commanders commit acts that amount to 'crimes against humanity' and 'genocide'?
- If so, can Suharto be brought before an international tribunal on such charges?
- Is it desirable to call for such an international criminal tribunal?
In the thirty years of President Suharto's control, at least two sets of events amount to crimes against humanity and/ or genocide in an ordinary meaning of the terms.
First, President Suharto's rule was founded when he led the holocaust that destroyed the Indonesian Communist Party. Between mid-October 1965 and the end of the following year, the Indonesian armed forces planned, orchestrated and in part carried out the murder of between 200,000 and one million Indonesian citizens. Virtually all were unarmed.
Most victims were alleged members of the Indonesian Communist Party (PKI) or its allied community organisations. Some were targets of anti-Chinese hatred fostered by army propaganda. Hundreds of thousands were shot by the military. Comparable numbers were clubbed and hacked to death by their neighbours, directed, equipped and incited by the armed forces.
Much about the anti-communist killings remains unknown even today, since the subject has been unspeakable in Indonesia. Yet no serious historian doubts that hundreds of thousands of Indonesians were killed. One of the first tasks a UN Special Rapporteur or Committee of Experts faces is to examine the existing evidence as to the scale of the crimes.
The next task is to plumb the details - to date virtually unknown - of the armed forces' planning of the holocaust.
Second, on the periphery of Indonesia, the state's repression of self-determination gave rise to another set of massive crimes. The war against the East Timorese is only the best known of these. Indonesian intelligence agents began by coercing the leaders of several groups of conservative and anti-independence East Timorese into signing a 'request' (which the Indonesians had dictated) for assistance. Indonesian armed forces then invaded the former Portuguese colony on December 5th, 1975.
In the following four years, the population of East Timor decreased by 200,000 people. They died as a result of direct Indonesian army killings and bombings, but also through forced re-locations and the starvation and disease that followed the invasion. Since then, torture has been a standard operating procedure for Indonesian forces.
How then does international law relate to Indonesia? On what grounds could an international criminal tribunal bring charges against Suharto? Though there are some important legal matters for debate and interpretation, a case against Suharto for crimes against humanity is quite possible under existing international convention and international customary law. A prosecution against Suharto for the crime of genocide, though more difficult, would also be quite possible.
Until the Security Council established the International Criminal Tribunal for the former Yugoslavia [ICTY] in 1993, and the International Criminal Tribunal for Rwanda [ICTR] in 1994, no-one had been charged with crimes against humanity or genocide in the years since the Nuremberg and Tokyo tribunals at the close of World War 2.
Both those earlier trials were tainted with the flavour of 'victor's justice'. But the international law dealing with such grave crimes has developed considerably since that time. In fact the UN has been moving in recent years with surprising speed to establish a permanent International Criminal Tribunal. In June 1998 an International Treaty Conference will have been held to approve a draft convention, and then a process of signing and ratifying will begin. In the meantime, a special tribunal on the Yugoslav and Rwandan model remains the way forward.
The Security Council empowered the ICTY to 'prosecute persons responsible for serious violations of international humanitarian law', including genocide, crimes against humanity, grave breaches of the Geneva conventions of 1949, and violations of the laws of war.
In 1946, the UN General Assembly affirmed the principles of international law as recognised at Nuremberg.
Subsequently the International Law Commission (ILC) reported to the UN General Assembly that it had codified Principles of Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal.
Principle 6 includes among the crimes punishable under international law:
'(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crimes against peace or any war crimes.'
The affirmation of the Nuremberg Tribunal's Charter and Judgement by the General Assembly, and their codification by the ILC, provide a solid foundation for the law on crimes against humanity as an accepted part of international customary law. This was the basis for Security Council Resolution 827 (1993) that established the ICTY.
A case could clearly be made that under international law Suharto has committed crimes against humanity. He directed the Indonesian armed forces that murdered tens of thousands or hundreds of thousands of overwhelmingly unarmed civilians in 1965-1966.
It is not known whether Suharto personally killed PKI members, or simply left that to colleagues, subordinates and civilian allies. But, mainly in his role as commander of the Operational Command for the Restoration of Security and Order (Kopkamtib), Suharto exercised direct and command responsibility for the planning and execution of what amounted to a massive crime against humanity in those years.
Prosecuting Suharto for the crime of genocide will be more difficult, though not impossible. The difficulties are two-fold. First, under international law the crime of genocide has a limited legal definition. Second, Indonesia, almost alone among important countries of the world, has not signed and ratified the Convention on the Prevention and Punishment of the Crime of Genocide. Neither of these difficulties is, however, conclusive.
Under the Convention, genocide means:
'Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such: killing members of the group; causing serious mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing methods intended to prevent births within the group; forcibly transferring children of the group to another group.'
In the case of Indonesia, the category of genocide is relevant in at least two cases: the mass anti-communist killings of 1965- 1966, and the killings following the invasion of East Timor.
However in 1965-66, as in Cambodia, Indonesian victims were for the most part killed not because of their ethnicity, nationality or racial identity. They were killed because of their alleged political beliefs. This would, in a strict sense, mean that their murders do not amount to genocide under the terms of the Convention.
But this does make the Convention irrelevant. In fact the presumed religious beliefs of PKI members, or rather, the lack of such beliefs, were very relevant to many of their persecutors. The fact that the PKI positively affirmed atheism was often held as a reason why they could never be trusted, and why they lost full status as human beings. In this limited sense, most of the 1965-66 killings had a religious aspect under the terms of the Genocide Convention.
Another, smaller, target of the 1965-1966 killings in some parts of Indonesia were Chinese Indonesians. To the extent that they were killed because of their Chinese identity, their murders would plausibly amount to genocide under the Genocide Convention.
Certain aspects of the Indonesian invasion and occupation of East Timor, especially during the years 1975-1979, could also be construed as genocidal under the terms of the Genocide Convention.
The most important difficulty with the genocide case against Suharto is that Indonesia has not signed and ratified the Convention. Unlike Indonesia, Yugoslavia, Cambodia and Rwanda are parties to the Genocide Convention. Consequently, there was no difficulty in law in trying former Rwandan government officials before a UN criminal tribunal. Nor is any difficulty anticipated on that ground in the Cambodian case.
Are the provisions of the Genocide Convention therefore not applicable in any way to acts of genocide committed within the territory of Indonesia? Most likely not, at least not in a direct sense.
Yet, some international legal experts maintain that the law of genocide has developed an overriding and peremptory applicability. This means individual states may not be permitted to defy it. Not only is the Convention a development of the established 1946 Nuremberg principles, they argue, but it gains added force simply by having been signed and ratified by the great majority of states.
In other words, the general law of genocide is likely to be applicable to some degree within the territory of Indonesia. The assumption must surely be made that in law, the categories of crimes against humanity and the crime of genocide are not closed.
If the US proposal to establish an International Criminal Tribunal for Cambodia is accepted by the Security Council, then the global applicability of the law of genocide will be very closely examined.
Why is it desirable at this point in history to mount charges of genocide and crimes against humanity against Suharto? Isn't it all now a matter of history, of revenge against old men rather than justice? Won't raking up the past do more harm than good, at a time when Indonesia needs stability?
There is something to be said for this objection, but it is wrong. An international criminal tribunal has three purposes. The first is to bring those individuals responsible for horrific crimes to justice, and to punish the guilty. By ordinary human standards, Suharto and his colleagues committed - and then benefitted greatly from - crimes on a horrific scale.
In Indonesia, the dead are many, but so are the scarred survivors. How long must they wait in fear and silence?
The second purpose is to deter such acts in the future. By establishing the possibility that those leaders of states may have to take responsibility for their actions.
A Rwandan prime minister is in gaol for genocide, Serbian war- lords slink in hiding, and two Korean presidents ended their careers with gaol sentences and national disgrace. Small comfort in a world of pain and hypocrisy, but possibly the beginnings of assigning global responsibility.
The third purpose of an international tribunal is to establish a reasonable basis for national reconciliation and for overcoming deep collective trauma.
Despite thirty years of repressing open discussion of the Indonesian holocaust, the wounds among the living are deep. Half a million victims left behind millions of bereaved. Fantasies and fears of revenge are to be expected, but the understandable desire for revenge is best met by facing the events of the past openly, and by establishing individual responsibility in open courts, properly conducted.
Crimes against humanity and genocide are recognised as the concern of all humanity, not only the peoples who suffer directly. Security Council Resolution 827 (1993) requires all states to cooperate fully with the ICTY. Under Principles of International Co-operation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, adopted by the UN in 1973, member states 'shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity'.
Now that Suharto has fallen, this will be an important obligation to recall. In the world of realpolitik, especially during the Cold War, international law and ordinary principles of justice counted for little against the interests of the major states. But there is plenty of reason to hope that the cry for justice will be heard this time.
In the face of widespread calls from abroad and inside Indonesia for the former president to be tried for crimes against humanity, some Indonesian successor regime, as in Rwanda, may well be prepared to acknowledge the jurisdiction of an International Criminal Tribunal.
By establishing that Suharto is, prima facie, guilty of crimes against humanity, a great deal is achieved. By focussing the minds of the international legal community on solving the practical and technical problems, we normalise the idea that this respected international figure came to power through genocide.
Leaders like President Clinton should be asked to explain just why he is prepared to act on Cambodia, but not on Indonesia. This way the double standard is rendered visible. In the face of the deceits of power, cynicism is understandable. But the cynical response is not always quite as realistic as it may seem at first sight.
The leader of the Rwandan genocide has been tried before a United Nations court. In the broken remains of Yugoslavia, UN warrants for the arrest of war-lords keeps them in hiding, lest they be arrested. Even, finally, in Cambodia, the dirty hands of world politics have moved enough to allow for the establishment of a tribunal.
Once the face of capitalist fortune turned away from Suharto, the outside world started to see him as a dictator. With a little more effort, he may be seen for what he truly is - a criminal on a massive scale.
Richard Tanter is Professor of International Relations at Kyoto Seika University. He is an Australian.