Was the killing of the Balibo Five a war crime?

18 August 2009

Dr Ben Saul argues that the killing of the Balibo Five occured in the direct context of a military operation and could be classified as a war crime.

An article in The Australian made reference to Dr Saul's piece in the Sydney Law Review - Prosecuting War Crimes at Balibo Under Australian Law: The Killing of Five Journalists in East Timor by Indonesia, in which he addresses the issue of whether the killing of the Balibo Five constituted a war crime.

For a war crime to exist, it must first be established that an "armed conflict" existed between at least two state parties.

Dr Saul argues that the Indonesian invasion of East Timor in October 1975 "triggered an international armed conflict within the meaning of the ... Geneva Conventions". It was "no secret that those operations both directly involved Indonesian military forces and were closely directed and controlled by Indonesia".

Then, too, there was "protracted violence between government authorities and organised armed groups" including Fretilin (which met the invasion with military resistance on "a significant and organised scale").

Dr Saul says unarmed journalists are non-combatants under international humanitarian law, and the "wilful killing of a non-combatant" is not an act of war. He notes that "not every killing in a war zone is a war crime" since ordinary criminal conduct (such as the crime of murder) can co-exist with war.

To qualify as a war crime, the killing of the Balibo Five must be "closely related to the armed conflict as a whole" and the Balibo killings "occurred in the direct context of a military operation".

View the article in The Australian - Balibo dispute 'a bid to avoid trial'

Contact: Greg Sherington

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