Punishing Private Manning's killer: Ron Smith questions assumptions behind the government's pursuit of the killer of a New Zealand soldier in West Timor.

• Author: Smith, Ron
• Position: Comment - Leonard Manning - Brief Article

The visit of former Indonesian President Wahid to New Zealand early in 2001 produced a further reiteration of demands that the Indonesian authorities bring to trial those responsible for the shooting of New Zealand soldier Private Leonard Manning in July 2000. These demands eventually resulted in the prosecution and on a charge of murder of East Timorese militia leader, Jacobus Bere. At the time of writing these proceedings are not complete but it is already clear that there are serious questions of jurisdiction, quite apart from the evidential problems of showing that this particular party of six was responsible fro Private Manning's death. The prosecution is taking place in Jakarta whilst, as his defence counsel has pointed out, Bere is from East Timor and the alleged offence was committed in East Timor. There is also a question as to whether a civil jurisdiction is the appropriate one in this sort of circumstance. The alternative is to consider the events of 24 July 2000 in the context of international law. However, this does alter the whole complexion of the case.

Even supposing that there is good evidence that this particular member of the militia group was the person who fired the fatal shot or shots, it is not at all clear what his `crime' under international law may have been.

The nature of the conflict in East Timor at the material time was such as to fall within the Geneva (Conventions) notion of `Armed conflict of a non-international character'. As such, it is plausible to consider that both the militia force involved in the incident and the New Zealand patrol were combatants in an irregular war and, as such, each was a legitimate target for the other. On this basis the shooting of Private Manning was not a crime under international law. On the other hand, there are certainly provisions in the Geneva Conventions that prohibit mutilation of the dead and these seem to have been breached. In this case, though, it may be doubted whether such activity (which has been very common in past conflict in the Pacific) is sufficiently serious to warrant formal prosecution. Of course, had Private Manning been merely wounded in the initial encounter and subsequently killed by those who found him, that action would certainly have been unjustified homicide.

The crucial point here is that international law does not take sides. Certainly Geneva law does not: `The provisions "must he fully applied" without adverse distinction based on the nature or...