Academic journal article Melbourne Journal of International Law

The International Law Aspects of the Case of the Balibo Five

Academic journal article Melbourne Journal of International Law

The International Law Aspects of the Case of the Balibo Five

Article excerpt

On 16 November 2007, Ms Dorelle Pinch. as Deputy Coroner. found that the five Australian-based journalists at Balibo. the 'Balibo Five', had been deliberately killed by members of the Indonesian Special Forces to prevent them from revealing that such forces had participated in the attack on Balibo. On 9 September 2009, the Australian Federal Police announced that it was launching a 'war crimes' investigation into the killing. This article explores the international law questions facing the Australian Government in respect of the case. It argues that whilst complex international humanitarian law issues are involved, on the Coroner 's findings the killings" were truly war crimes under international law and Australia has the right to seek the extradition of the suspects from Indonesia or to call for their prosecution abroad.


 I Introduction
 II The Geneva Conventions Act and Australia's Jurisdiction to
    Prosecute War Crimes
III Do the Coroner's Findings Evidence the Commission of the War
    Crime of 'Wilful Killing' under the Geneva Conventions Act?
    A Introduction
    B Was There an International Armed Conflict or Occupation
      to Which Geneva Convention IV Was Applicable'?
      1 Common Article 2
      2 Was There a State of International Armed Conflict?
      3 Was the Conflict between Indonesia and Portugal?
      4 Was There an Indonesian Occupation of East Timor?
      5 Conclusion
    C Was There a Sufficient Nexus between the Killing of the
      Balibo Five and the International Armed Conflict or
    D Were the Journalists Protected Persons under Geneva
      Convention IV?
      1 Article 4
      2 Were the Balibo Five in the Hands of Indonesia?
      3 Were the Balibo Five in Occupied Territory?
      4 Conclusion
    E Was the Killing of the Balibo Five 'Wilful'?
    F Was the Wilful Killing Justified by Any Customary Rule
      or Defence under the Laws of War?
    G Conclusion
 IV The International Law Obligations of Australia and Indonesia
    A Australia's Obligations
    B Indonesia's Obligations
  V Conclusion


   Few events have become as poignantly etched into the Australian
   psyche as the deaths of five Australian journalists in Balibo,
   Timor-Leste (or Portuguese Timor, as it was then known), who have
   become known in Australian folklore as 'the Balibo Five'. (1)

In 1975, Australians Greg Shackleton and Tony Stewart, Britons Brian Peters and Malcolm Rennie and New Zealander Gary Cunningham were Australian-based reporters in East Timor attempting to tell the world about the predicted Indonesian invasion of that country. At the time, Indonesia was denying that its soldiers were directly involved. These young journalists never got to make their world exclusive. Instead, they were killed in the remote village of Balibo following the invasion they were attempting to report on. Their families have always maintained that they were deliberately killed by Indonesian soldiers. Two Australian government inquiries put their deaths down to 'cross-fire' and 'the heat of battle'. (2)

Their case, however, would not go away. To many in Australia and elsewhere, their deaths were a reminder of how the victims of military aggression are expendable in the face of a desire for good relations between states. Ms Tolfree (Mr Peters's sister), through her lawyers, invoked a little used provision in the Coroners Act 1980 (NSW) to ask for a coronial inquest based upon Mr Peters's residence in New South Wales. (3) On 16 November 2007, after hearing all the evidence, including that of a number of eyewitnesses on both sides of the attack on Balibo, Magistrate Dorelle Pinch made findings under s22(1) of the Coroners Act 1980 (NSW). She found the journalists were surrendering to the Indonesian forces by throwing their arms in the air and protesting their status as 'Australians' and 'journalists' when the order came from Captain Yunus Yosfiah of the Indonesian Special Forces that they be killed. …

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