Issues at play in Lumintang suit
By Rita Maran

JAKARTA (JP): The lawsuit brought against Lt. Gen. Johny Lumintang in a United States court has become the subject of some confusion in public discourse.

It would not be the first time that actions involving human rights issues were -- whether innocently or intentionally -- intermingled with a range of private political and diplomatic agendas.

It should be noted that this lawsuit against the former Army deputy chief is not the first of its kind; however, while it is still far from commonplace in the U.S., or indeed in any country, we can be certain that it will not be the last of its kind.

At this early stage of development, before discussion of the case becomes mired in extraneous issues, clarification of human rights laws may help in laying an accurate foundation for future consideration.

Furthermore, the public's right to know merits the beginning of a dialogue on issues that will remain with us.

Bear in mind that coincidental with the Lumintang case in the U.S., the procedures for dealing with military personnel alleged to have committed violations in East Timor in 1999 are currently under review in this country.

The issues are interrelated, involving as they do the emerging basic right of people who have suffered and survived egregious violations to have their voice heard not only in a medical treatment center, but also in a public court of law.

To clarify a few points: the lawsuit is a private civil action, brought against a member of the Indonesian Military who, the accusers declare, is guilty of specific human rights abuses in East Timor following the 1999 referendum.

The trial will continue in the United States. The U.S. government is not a party to the suit. The basis of the suit under U.S. law is the Alien Tort Claims Act, dating back to a 1789 civil code, along with the contemporaneous Torture Victim Protection Act.

The legislation in question can be invoked only under particular and relatively unusual circumstances. Recent actions to bring former president Augusto Pinochet of Chile before a relevant court in England or Spain, and separate but related actions to bring former Chad leader Hissene Habre before a relevant court in Senegal, have in common with the Lumintang case a developing body of jurisprudence that holds torturers and others accused of crimes against humanity to a different standard of responsibility.

In such cases, the usual statute of limitations is lifted concerning the length of lapsed time since the crime and the location of the crime outside the country where the accused is located.

In the Indonesian case, the alleged crime involving torture considers the torturer hostis humanis generis -- a term rarely in use -- an "enemy of mankind".

Lawsuits falling under such legislation are not lightly undertaken. In 1980, a precedent was established when a Paraguayan family, the Filartigas, visiting New York City, learned of the presence there of the Paraguayan police chief, Pena-Irala, who had tortured the youngest member of the Filartiga family to death in Asuncion.

The Filartiga family, represented by the Center for Constitutional Rights, sued Pena-Irala, and won a judgment in 1980 based on the 1789 law outlawing torture.

Currently, the Center for Justice and Accountability, a San Francisco- based human rights organization, along with the Center for Constitutional Rights and a third party named James Klimanski, are representing the East Timorese plaintiffs.

Over the past two years since its founding, the Center for Justice and Accountability has helped plaintiffs bring three similarly based complaints into U.S. courts on behalf of the victims/survivors.

In the first of the cases, a Bosnian Serb is being sued by a Bosnian; another case involves a Salvadoran being sued by a Salvadoran; the third case involves a Chilean being sued by a Chilean.

These civil suits continue at present in U.S. courts in Georgia and Florida.

The overriding principle at stake here is not that complicated. Quite straightforwardly, it concerns a basic human value common to all religions and social communities -- respect for the integrity of every human being.

Both sides -- the victim/survivor and the accused -- get to address the issues in a court of law. The individuals on trial in The Hague, in the International Criminal Tribunal for the former Yugoslavia, and in Tanzania, in the International Criminal Tribunal for Rwanda, constitute a prime example of rule of law in practice.

No matter how lofty or low the person's standing in society, whether president or peasant, commander or foot soldier, each alleged wrongdoer can confront his accuser and mount a defense.

The rights of the person who has survived egregious maltreatment and the rights of the defendant are, as they should be, equally claimable.

Both have the right to seek access to justice, and we, the public, have the corresponding duty to ensure even-handed application of the law for redress of grievances.

Recognition of the violence committed and acknowledgement of it by the community help furnish a link which the survivor can grasp as he or she starts the long road back toward the life that was broken.

The accused gets to speak in his or her own defense, whatever the heinous acts committed. The men on trial in The Hague and in Tanzania exemplify rule of law in practice.

No matter their position, each individual wrongdoer is openly confronted by the victim/survivor and the voices of both are heard.

In all these cases, the gravity of the violations is not in doubt. It is here that the concept of universal jurisdiction comes into play.

Universal jurisdiction brings justice into play in cases of outstanding gross and systematic violations when wrongdoers might find a way to escape justice outside the country where the violation occurred. No matter where the enemy of mankind relocates, there will be no safe haven.

The writer is a Fulbright Scholar at the University of Indonesia and a board member of the San Francisco-based Center for Justice and Accountability.

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