US courts bring down judgments against two Indonesian generals

John M Miller

Only two ranking Indonesian officers have been held accountable in any meaningful sense for human rights abuses in East Timor so far. In both cases, it was not a court in Indonesia or East Timor, but courts in the United States that issued the judgments in civil cases brought by victims or their relatives.

In 1994, a Boston court held General Sintong Panjaitan liable for US$14 million for his involvement in the November 12, 1991 massacre of over 270 East Timorese at the Santa Cruz cemetery in Dili. Helen Todd, the mother of the only non-East Timorese killed that day, sued Panjaitan. Judge Patti Saris ordered that Gen Panjaitan, who was commander of the Bali-based Udayana military command at the time of the massacre, to pay $4 million in compensatory damages to Todd and $10 million in punitive damages in the shooting death of her 20-year-old son Kamal Bamadhaj.

Last September, Judge Alan Kay of the US District Court in Washington, DC, ruled that General Johny Lumintang was liable for US$66 million in damages for his role in crimes against humanity following East Timor�s vote for independence in 1999. That lawsuit was brought on behalf of six East Timorese plaintiffs. The judge granted $10 million in punitive damages to each plaintiff or their estates. Compensatory damages ranged from $750,000 to $1.75 million each.

'It has been established... that Lumintang has responsibility for the actions against plaintiffs and a larger pattern of gross human rights violations,' wrote Judge Kay. '[H]e - along with other high-ranking members of the Indonesian military - planned, ordered, and instigated acts carried out by subordinates to terrorise and displace the East Timorese population ... and to destroy East Timor�s infrastructure following the vote for independence.'

In 1999, Lumintang, as Deputy Army Chief of Staff, was second in command of the Indonesian army. In his ruling, Judge Kay cited the principle of command responsibility, where 'a commander may be criminally or civilly responsible for crimes committed by subordinates.' He said that Lumintang is 'both directly and indirectly responsible for human rights violations committed against' the plaintiffs. Evidence of direct involvement includes his signature on certain key documents calling for the use of torture and removal of large numbers of people in East Timor if the people voted for independence in the 1999 referendum. Lumintang was also found liable because, as a member of the TNI high command, he knew or should have known that subordinates were involved in systematic rights violations in East Timor, but he failed to act to prevent them or punish the violators.

The alternatives

Although courts are currently sitting in Dili and Jakarta, the case against Lumintang is the only one heard to date against a senior Indonesian commander for the systematic destruction following East Timor�s 1999 referendum.

Indonesia�s ad hoc human rights court has been widely criticised for its limited jurisdiction and the poor quality of its judges. Human Rights Watch has said that the wording of the court�s statute 'may make it more difficult to convict defendants who were not actually present at the scene,' making conviction of most commanders unlikely. The TNI remains powerful. The highest-ranking officer to be named as a suspect is regional commander MajGen Adam Damiri, though at this writing he has yet to be brought to trial.

Ranking Indonesian officers are unlikely to face prosecution before the Serious Crimes Court in East Timor, because Indonesia continues to refuse to extradite suspects. Barring intense international pressure or the establishment of an international tribunal for East Timor, holding ranking Indonesian officers responsible will have to rely on the serendipity of legal actions in remote jurisdictions.

The Panjaitan and Lumintang cases are part of a widening international effort to establish that certain crimes - especially war crimes, crimes against humanity and genocide - are so heinous that their perpetrators can be pursued and prosecuted anywhere. The soon-to-be established International Criminal Court is the most prominent expression of this impulse to universal jurisdiction. But the ICC will not hear crimes retroactively, so it cannot deal with the abuses committed by Indonesia in East Timor.

Well publicised was the 1998 effort by a Spanish magistrate to question Augusto Pinochet. The magistrate, pursuing a criminal investigation into the murder of Spanish citizens during the 1973 coup in Chile, sought to question the former Chilean dictator when he visited Britain. Pinochet was detained while the British courts decided whether to allow questioning. Ultimately, the British government declared him too old to stand trial and allowed him to return home.

In the US, the effort has mainly involved private civil suits. Precedent was set by the case of Joel Filartiga, who had been tortured and murdered by a Paraguayan police official in 1976. His family tracked the official to the US and sued, but a lower court rejected the suit for lack of US jurisdiction. In 1981, a United States Court of Appeals ruled that the 'deliberate torture perpetrated under colour of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.' Michael Ratner of the Centre for Constitutional Rights (CCR) explains that the court found 'that it was appropriate for a court in the United States to hear the case, even though the occurrence and the parties had no substantial connection to the US. In part this was based on the concept of universal jurisdiction and that the right to be free from torture had been universally proclaimed by all nations. With stirring language, the court emphasised that a torturer could be brought to justice where found even for civil liability: "Indeed, for purposes of civil liability, the torturer has become - like the pirate and slave trader before him - hostis humani generis, an enemy of all mankind."'

The law

Filartiga was based on the Alien Tort Claims Act of 1789, which allows non-citizens to sue for acts committed outside the United States 'in violation of the law of nations or a treaty of the United States.' A later law, the 1991 Torture Victim Protection Act, reaffirmed the 1789 law and gives US courts jurisdiction over claims by citizens involving torture or extrajudicial killing occurring anywhere.

Filartiga has inspired numerous lawsuits against direct torturers, military commanders (like Lumintang and Panjaitan), and, recently, corporations involved with repressive regimes, including ExxonMobil in Aceh. These private actions are not at the mercy of the federal government�s foreign policy priorities and have resulted in billions of dollars of damages. However, cases can only go forward if the defendant is personally served legal papers while they are physically in the US

Neither General Panjaitan nor Lumintang chose to return to defend themselves. The courts issued rulings of default in both cases, and then held hearings to determine the amount of compensatory damages for the plaintiffs' suffering and the amount of punitive damages.

General Panjaitan was served papers in 1992 after he came to the US to enroll in Harvard Business School. A default judgment was entered against him in February 1993. Judge Patti Saris heard testimony in October 1994 from Allan Nairn, a journalist and eyewitness to the massacre, and from Constancio Pinto, an East Timorese resistance leader who helped organise the November 12 demonstration and who was then living in exile in the US. Todd testified that Bamadhaj, a New Zealand citizen, was shot in the arm during the initial attack, and later in the chest by an army patrol. Troops prevented a Red Cross jeep from taking him to a hospital and he bled to death. 'I'm the only plaintiff because I'm the only one of 271 families that can bring this case without endangering my other children,' she said.

Although Indonesian military spokespersons claimed that Lumintang was not properly notified of the suit, he was personally served on 30 March 2000, as he was preparing to leave Washington after speaking before the US-Indonesia Society. Judge Gladys Kessler found him in default the following December after he failed to answer the suit. By the time Judge Kay presided over three days of testimony from several of the plaintiffs and expert witnesses in a Washington, DC, federal court, East Timorese were able to travel and testify, but most wished to remain anonymous, still fearing military or militia retaliation.

Plaintiffs travelling to Washington included an East Timorese victim of Indonesian military and militia violence whose brother was killed and father injured in post-election attacks. The father testified via videotape. Two other East Timorese targeted by the Indonesian military in September 1999 during the scorched-earth campaign by Indonesia also testified: a mother whose son was killed, and a man shot by Indonesian soldiers who subsequently had to have his foot amputated.

The court judgments, however, are not likely to enrich the surviving plaintiffs. Collection of any damages depends on uncovering the defendant�s assets.

So far, the US has been the only jurisdiction outside the archipelago to bring any Indonesian generals to court. One result has been that few, if any, prominent suspects of past rights violations are publicly travelling to the US anymore. Indonesian officials who especially value their ties to the US might view this as more than an inconvenience. People in other jurisdictions might want to examine their national laws and see what possibilities there are for similar legal actions.

For the text of Judge Kay�s 'Findings of fact and conclusions of law' and more information about the Lumintang and Panjaitan cases, see http://www.etan.org/news/2000a/11suit.htm.