Prosecuting War Crimes at Balibo Under Australian Law: The Killing of Five Journalists in East Timor by Indonesia

Abstract

The killing of five young Australian, New Zealander and British journalists at the village of Balibo during the Indonesian invasion of Portuguese Timor in 1975 has long been surrounded by controversy, obfuscation and intrigue. While many suspected that the journalists were deliberately killed by clandestine Indonesian military forces or proxy militias, for 35 years Indonesia has maintained that the journalists were collaterally killed in the crossfire of battle, or were active participants in hostilities. Despite numerous executive inquiries over 30 years, it was not until late 2007 that a judicial inquiry into their deaths was held in Sydney, which found that the journalists were wilfully killed by Indonesian forces, in circumstances likely amounting to war crimes. The Australian Federal Police is currently considering whether to prosecute and extradite Indonesian suspects, including a former government minister. This article picks up where the recent coronial inquest left off by examining whether the killings amounted to war crimes which can be prosecuted. In doing so, it investigates the complex nature of the conflict (international and non-international); the obligations of the parties (Indonesia, Portugal, Australia and non-state forces); the attribution of non-State conduct to Indonesia; the legal status and protection of journalists; universal jurisdiction for war crimes and Australia's 1957 implementing legislation (under which there has never been a prosecution); difficulties of evidence and inter-temporal law; immunities and non-justiciability; and prospects for extradition under a bilateral agreement between Australian and Indonesia.

Keywords: war crimes, international armed conflict, non-international armed conflict, universal jurisdiction, extradition, state immunities, non-justiciability, East Timor, journalists

JEL Classification: K10, K14, K30, K33