Subject: A diplomatic tightrope (Balibo Five)

Sydney Morning Herald

A diplomatic tightrope

May 18, 2008

We will see how serious Kevin Rudd is in bringing the Balibo Five case to its logical conclusion, writes Paul Daley.

A WEEK before the last election, Kevin Rudd placed on record his unambiguous views about a crime that many Australians have come to regard as perhaps the most shameful recent episode in Australian diplomacy.

On November 16 last year, NSW Deputy Coroner Dorelle Pinch referred the case of the Balibo Five - the Australia-based journalists murdered by the Indonesian military in East Timor in 1975 - to the federal attorney-general for possible war crimes prosecutions. This move followed four separate Australian inquiries that amounted to nothing, and three decades of official intransigence here and in Indonesia.

Finally, it seemed, officialdom had leapt the gaping moral abyss that has underpinned, for decades, a pragmatism-ahead-of-human rights approach to Canberra's sacrosanct bilateral relationship with Indonesia. Justice might finally be achieved, damn the diplomatic implications.

Rudd, former Australian diplomat and past Opposition spokesman on foreign affairs, was operating entirely within his comfort zone when commenting on Pinch's findings.

"This is a very disturbing conclusion by the Coroner concerning the fate of the Balibo Five back in 1975," he said. "I believe this has to be taken through to its logical conclusion. I also believe those responsible should be held to account."

It was, if not exactly an election promise, something like a statement of principle. So, what is the logical conclusion? Who should be held to account? Let's briefly consider Pinch's findings.

She said: "The Balibo Five died at Balibo ... from wounds sustained when [they] were shot and or stabbed deliberately, and not in the heat of battle, by members of the Indonesian special forces, including Christoforus Da Silva and Captain Yunus Yosfiah on the orders of Captain Yosfiah, to prevent them from revealing that Indonesian special forces had participated in the attack on Balibo [just inside the East Timor-Indonesia border]."

In coming months we'll see just how serious Rudd was. For if the case is taken to its "logical conclusion" Rudd's Attorney-General (on the recommendation of the DPP) may soon seek the extradition of Yosfiah, a former indonesian information minister, and Da Silva.

This case has won advocates from all over the world. And today there are some in Rudd's Government who are privately heartened by his comments last November. They were further encouraged by Rudd's subsequent comments when he travelled to Bali as Prime Minister barely a month later for a multilateral climate change meeting, when the issue arose with Indonesia's President, Susilo Bambang Yudhoyono.

"We had a general discussion on it and I also referred to the fact that the independent legal processes in Australia still had their own way to work through and these were independent of the executive arm of government and they should proceed as they normally do," he said.

At a time when Rudd faces increasing criticism from the foreign policy establishment - for supposedly nurturing ties with China at the expense of Indonesia, any move by the Commonwealth DPP to charge Yosfiah and Da Silva would be extremely provocative.

Rudd, however, has long believed close ties with Jakarta are a critical pillar - along with the US-Australia Alliance, free trade and open markets, and friendship with China - of Australian foreign policy, central to its security and, yes, the "national interest".

It is with some curiosity that Government insiders recall backbencher Rudd in the late 1990s when the Indonesian military was implementing a scorched earth policy in East Timor.

"He was absolutely at one with the view that despite the violence in East Timor, Australia had to maintain very strong relations with the Indonesian military. In fact, he was at pains to point that out within the Labor Party at the time," recalls one insider.

That is why, despite what Rudd might say publicly, there are parallel fears that any case against the two Indonesians - currently being assessed by the Australian Federal Police - could ultimately fall prey to bureaucratic obfuscation.

Australia's options regarding the Balibo Five and their suspected murderers are very clear. There are agreements (including a 1995 extradition treaty) with Indonesia to return suspects to the jurisdiction of their alleged crimes. With considerable fanfare in 2006, Australia and Indonesia signed the Lombok Security Treaty dealing with, among other matters, law enforcement.

The extradition treaty entitles Indonesia to refuse an extradition request. But in such circumstances it would be required to submit the case to its prosecutors. Fledgling democracy though it is, Indonesia would face enormous international pressure (not least from Britain, Brian Peters's birthplace, which has taken enormous interest in the case) to prosecute.

Meanwhile, Australian sources say the Yosfiah-Da Silva brief is close to completion and will soon be given to the Commonwealth DPP for assessment.

The Australia-Indonesia relationship may be about to be dealt one of its toughest tests yet, and the case will doubtless be raised again when Rudd meets Yudhoyono in an expected visit to Indonesia next month.

Of course, two high-profile cases have already pressured the friendship. Schapelle Corby's innocence or otherwise has incited enormous anti-Indonesian sentiment here, and the Bali Nine case is yet to reach its potentially tragic conclusion.

And let's not forget the pivotal role played by the Australian Federal Police in those prosecutions. Co-operation, in the name of diplomacy and law enforcement, must cut both ways. Rudd seems to understand this.

<> Source: The Sun-Herald

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