By Helen Todd
A boy is dead. A court finds an army general responsible. He is ordered to pay compensatory and punitive damages.
The boy, Kamal Bamadhaj, a 20-year-old student, is my son. I have waited three years and gone half way around the world to get this elementary justice. My chances of ever collecting the $14 million awarded in damages are slim, at best. Nevertheless, there is a deep and healing satisfaction in simply getting a legal judgment that says a great wrong was done and someone is accountable.
Kamal, who was born and brought up in Malaysia, but also held New Zealand citizenship through me, was a second-year student at the University of NSW in Australia. He was shot by Indonesian troops on November 12, 1991, in East Timor, in what is now known as the Dili massacre. East Timor was invaded by Indonesia in 1975, with the connivance of the United States, and has been illegally occupied by them ever since.
Kamal was taking photographs of a memorial procession for a Timorese youth killed by the military 14 days before. This procession, which turned into a demonstration for Timorese independence, started at the Motael Church on the Dili waterfront and ended at the Santa Cruz cemetery, with a crowd of over a thousand mostly young people stopped on the street between two high walls. Army units arrived in trucks, marched up to the crowd in orderly ranks and, without warning, fired directly into them with M16s. Timorese groups have collected the names of 271 people, including Kamal, who were killed that morning.
This massacre was witnessed by foreign journalists and filmed from inside the cemetery. The Indonesian government attempted to defuse the international outcry that followed by removing the two local commanders from their posts. The more senior, Major-General Sintong Panjaitan, commander of the Eastern Region which includes East Timor, was "punished" by being sent to the Harvard Business School in Boston, USA. (The school denies he ever enrolled, but Panjaitan lived for some months in Boston.)
Panjaitan's residence in Boston enabled me, with the help of a public-interest law group called the Centre for Constitutional Rights, to serve a summons and complaint on him on September 17, 1992, for the killing of Kamal. It was not a class action, since any Timorese mother to put her name to such a complaint would be endangering what was left of her family, but I told the press that I was doing it in the name of all the victims and any damages I might be awarded would go to their families.
The general did not file any defence. Instead, he immediately absconded back to Indonesia. He was subsequently appointed senior adviser the minister of technology, a position he still holds. In February 1993, a Boston court found him in default, meaning my complaint was assumed to be true since he had filed no defence.
The case was filed under the Alien Tort Claims Act, which allows victims to sue a US resident for crimes outside the country, and under the Torture Victim Protection Act, which grants US courts jurisdiction over civil suits for torture or summary execution, no matter where they took place. This is a new act signed into law in 1992 and designed to deny safe haven in the US to people guilty of serious human rights violations.
Then a federal judge in a Boston court heard my testimony and that of Allan Nairn, a journalist who witnessed the massacre and was brutally beaten by Indonesian soldiers, and Constantio Pinto, a leader in the Timorese resistance movement, who escaped from East Timor after the massacre and is now a student in the United States. She wanted the facts about East Timor and Kamal's death so that she could decide on the amount of damages.
I told the court that Kamal did not die at the cemetery. An M16 bullet tore a large hole in his upper arm, but he managed to get away. He was next seen walking alone along a main street in Dili. A military truck stopped beside him. There was an argument about his camera and then they shot him in the chest and left him there, lying on the road. He was picked up a few minutes later, bleeding heavily, by the representative of the International Committee of the Red Cross, who drove towards the Dili hospital.
The representative was stopped at a military roadblock, and soldiers yelled at him: "Get out of here or we will kill you!" He drove in the opposite direction and was stopped again at the police headquarters, ordered to dump Kamal in their compound and "get out of here". He refused. The subsequent arguments took around 20 minutes before he was allowed to drive Kamal to the military hospital. He died from "loss of blood due to gunshot wounds", 10 minutes later.
The Indonesian government has tried to explain away the Dili massacre as the "spontaneous and unauthorised" reaction of undisciplined troops to a "wild and chaotic" situation at the Santa Cruz cemetery. Its most compliant ally, Australia, called it "an aberration". (The military command, in contrast, have always defended their action in Dili. General Try Sutrisno, commander of the Armed Forces, said: "These ill-bred people have to be shot ... and we will shoot them".)
But Kamal's life could have been saved at several points. One army unit shot him at the cemetery. Another shot him again in cold blood on a deserted street. Yet another unit blocked a clearly marked Red Cross vehicle from taking him to hospital. Police officers stopped the car a second time for 20 fatal minutes. Different units; different authorities; all working to the same murderous purpose.
The killings were not the actions of a single group of soldiers gone berserk. Alan Nairn, who was in front of the crowd as the soldiers approached, told the Boston court what he saw: "... a long column of soldiers, marching in formation. They proceeded in discipline and relative quiet. The soldiers issued no warning ... there was no interaction between them and the crowd. They simply marched up, swept past us, raised their rifles to their shoulders all at once and opened fire into the stunned, retreating people."
A film taken from inside the cemetery by British journalist Max Stahl shows disciplined squads of soldiers, directed by an officer in plain clothes, proceeding row by row along the graves, beating and finishing off the wounded sheltering there.
Even the official inquiry report issued by the Indonesian government as a sop to world opinion lists the injured in hospital in the wake of the massacre as 42 gunshot wounds and 49 wounded by stabbing and beating, indicating that long after the initial burst of fire, the military killings continued both at the cemetery and in other parts of town. What happened to Kamal after he was first hit is consistent with what happened to many others.
Documents presented to the court detailed the military violence inflicted on East Timorese since the Indonesian invasion — a violence which has claimed the lives of one third of the population, approximately 200,000 people. Constantio Pinto described how he, at the age of 12, fled into the bush with his family to escape the soldiers. They were strafed and starved and finally captured. As a schoolboy in Dili, he joined the resistance and rose to be one of its leaders. In early 1991 he was picked up, charged with nothing, but held and tortured in one of the military torture centres in Dili. At the time of the massacre he was already in hiding.
Lawyers from the Centre for Constitutional Rights argued in court that the killings in Dili that morning were part of a systematic and long-term pattern of violent repression against Timorese institutions and any sign of political dissent. They presented documentation to show that, "The Santa Cruz massacre was a premeditated attack, and part of a lengthy pattern of violent repression in East Timor".
Panjaitan, as commander of the Eastern Region since 1988, "oversaw and implemented a program of terror and systematic violence in East Timor". We asked for US$10 million in punitive damages, to reflect the full horror of what has been done in East Timor and the central role the general played in systematic human rights abuses.
The judge listened to the witnesses, read the documents and in three days gave a written judgment in which she awarded every cent of the punitive damages we had asked for. In addition, she awarded US$2 million to Kamal's estate for his pain and suffering and US$2 million to me for the loss of my only son.
There is no amount of money that could fill the gaping hole that the death of Kamal has left in our family. There is no price on his life, his energy, his intelligence, his idealism. "I have never met anyone who was more open to the pain of others", a woman who worked with Kamal told me after his death.
Nevertheless, the symbolic meaning of this judgment is important. It is a loud shout of horror at Indonesian government policy and actions in East Timor. It will be heard in Jakarta, however much they try to dismiss it. It has to be taken into account by governments which aid and shelter the makers and implementers of these murderous policies.
I have already been told many times that I will never be able to collect these damages. That does not concern me. I will keep on demanding them for as long as I have voice. I am in the process of setting up a trust fund in Kamal's name where the award will be placed. Anything that goes into this fund will be used for the Timorese families who have lost their loved ones to military violence.
I don't believe that Indonesia can, or even will want to, hold on to East Timor indefinitely, against the stubborn and heroic resistance of the Timorese. For nearly 20 years now the Indonesian military have followed a systematic policy to wipe out all resistance to their occupation, to destroy Timorese institutions and culture and to cut the territory off from the outside world. Their policy has cost the Timorese thousands of lives and a huge amount of suffering. But it has been a spectacular failure.
Timorese resistance is now led and peopled by a generation who were toddlers at the time of the invasion. They are educated in Indonesian schools, recipients of Indonesian "development". Timorese, less than a third of whom were Catholics at the time of the invasion, have flocked to the Catholic Church as an expression of their difference, their defiance and their link to the world.
International awareness of East Timor, and what has been done there, has probably never been higher. Inside Indonesia, students and intellectuals are beginning to link their struggle for democratic freedoms to the Timorese struggle for self-determination.
Since the Dili massacre, Indonesian government policy seems to have assumed that if they made a few public relations gestures in the right directions, the issue of East Timor would fade back out of sight. It hasn't happened. What foreign minister Ali Alatas called the "stone in the shoe" is still irritating. If this judgment adds to the size of that stone, which I think it will, then something besides our pain will have resulted from Kamal's death.