Balibo Five cover-up: When will it end in justice?

Last Tuesday would have been journalist Gary Cunningham’s 67th birthday. But, tragically, Gary was killed in cold blood 39 years ago by the Indonesian army to prevent him from reporting about Indonesia’s invasion of East Timor.

October 27, 2014  | Nick Xenophon

Last Tuesday would have been journalist Gary Cunningham’s 67th birthday. But, tragically, Gary was killed in cold blood 39 years ago by the Indonesian army to prevent him from reporting about Indonesia’s invasion of East Timor.

Also killed were his fellow newsmen, Greg Shackleton, Tony Stewart, Brian Peters and Malcolm Rennie.

Instead of quietly remembering his father on Tuesday, Gary’s son, John Milkins, read news reports that the Australian Federal Police was abandoning its five-year investigation into the murder of Gary and the rest of the Balibo Five.

After years of the police interviewing witnesses to the murders, and building what seemed to the victims’ families a water-tight case, the AFP suddenly claimed it didn’t have the jurisdiction to investigate the crimes.  This is not true.

And that is a fact that hasn’t been missed by John.

“This is a clear case of moral bankruptcy,” he said after the AFP announcement. “It seems that the Balibo Five have been traded off for boats, beef and the Bali Nine.”

I understand John’s anger. This looks a lot more like politics than police work. The federal police had to rely on legal advice, including an opinion from the Attorney-General’s Department.

So let’s take a closer look at the claim that the AFP doesn’t have jurisdiction over the matter. Any sensible reading of international war crimes law shows the AFP has the power to investigate the murders and prosecute the guilty. Three tests need to be met to prove the AFP has jurisdiction.

First, we need to show the Indonesian military killed the journalists in the course OF an international armed conflict. Because East Timor was a Portuguese territory at the time, and because Portugal was a signatory to the Geneva Convention, this is the case.

Second, we have to show the murders had what is called a “nexus” with the armed conflict. That is, the murders were a direct result of the conflict. Witnesses say the journalists were killed to prevent them from reporting about the Indonesian invasion of East Timor.

Finally, we need to show they were “protected persons”, and not soldiers. This is clearly the case.

So with those tests met, it’s clear the AFP does have jurisdiction.

I rarely use terms like “cover-up” because it opens you up to criticism that you are some kind of conspiracy theorist. I am not. What I am is a lawyer and a politician, and coming from those two walks of life it is apparent to me that something is taking precedence over the rule of law in this matter. Like eight previous Australian governments, this government seems to want us all to forget about the murders.

Is the fear of offending Indonesia stronger than our commitment to justice and fundamental human rights? If so, that is incredibly patronising to Indonesia as it has transformed itself into a strong and robust democracy.

How can we assume the Indonesia of today, under its new reformist President Joko Widodo, isn’t mature enough to start dealing with aspects of its darker past?

Perhaps, previous Australian governments have felt some guilt over the murders because, after all, Australia was complicit in the invasion of East Timor. Australia knew about Indonesia’s plans ahead of time and did nothing to try and prevent them. Australia was the only democratic state that acknowledged Indonesia’s sovereignty over East Timor even while Indonesian occupation resulted in the deaths of more than 204,000 East Timorese.

The AFP investigation followed a NSW Coronial inquest, which, effectively, named the suspects, so the federal police had a walk-up start.

As a nation, we cannot allow foreign soldiers to arrest, detain and then shoot and stab to death five innocent men, who were simply there to bear witness to an international scandal that’s had repercussions for our region for the past four decades.

Over four decades, the reluctance to bring the murderers to justice is a national disgrace.

Talking to John Milkins about his father this week, I was struck by the thought that what had once been a search for justice for his dad had become something bigger.

“This isn’t only about the Balibo Five,” he said. “This is about fundamental human rights for all civilians killed in international conflicts.”

And he is right. It might seem like a long time ago. But this isn’t just about something that happened 39 years ago. The cover-up continues to this day.

Nick Xenophon is a senator in Federal Parliament.