Minute from Lauterpacht to Williams

Canberra, 9 July 1976

CONFIDENTIAL

East Timor: Journalists

You have sent me a copy of a memorandum from our Minister1 in Jakarta (No. 851, file 860/119/1/5) in which he makes certain points.2

1. First, he suggests that if we contend that the Indonesian Government is the legal successor to the Portuguese Government in East Timor, the Indonesian Government will be able to invoke the waiver of responsibility which was signed by the journalists in favour of the Portuguese Government.3
2. While this may no doubt be true, one has to recall what the whole dispute is about. My understanding is that we allege that the journalists were deliberately killed by Indonesian forces (or at any rate, that they died in circumstances in which there is a strong probability that they were killed by Indonesian forces). We are not alleging that Indonesia is responsible because the journalists were killed by anyone other than Indonesian forces. While the waiver given to the Portuguese authorities absolves them from responsibility for injuries done to the journalists, it cannot be interpreted as giving the Portuguese authorities the right to kill the journalists. No more could the waiver, if invoked by the Indonesian authorities, be said to have given the Indonesian authorities the right to kill the journalists. All the waiver does is to say that the beneficiary of it, namely the Portuguese or the Indonesian authorities as the case may be, will not be liable for injuries caused to the journalists by others.
3. The second question raised by Mr Dan’s memorandum is ‘whether Shackleton forfeited his rights as a neutral war correspondent, and compromised that of his colleagues, when he delivered the message from the FRETILIN commandant at Balibo to the FRETILIN at Maliana on 12 August’. Clearly, a neutral war correspondent ought not to give assistance to either side in combat. However, if he does so, the worst that can happen to him is that he should be assimilated to the forces of the party to which he has given assistance. But, no belligerent has the right indiscriminately, or discriminately, to kill persons seeking to surrender as prisoners. There is no evidence that, at the moment when the journalists were killed, the Indonesians had any awareness of the fact that Shackleton might have carried a message. There was, therefore, at that moment no conceivable justification for assimilating him or his colleagues to the forces whom the Indonesians were fighting. The subsequent discovery of an indication that a message had been carried, while slightly embarrassing, is quite irrelevant to the killing of the journalists; even if the fact had been known to the Indonesians at the time of the killing, it still would not have entitled the Indonesians to kill the journalists.

E. LAUTERPACHT - Legal Adviser

[NAA: A1838, 3038/10112/4, v]

• 1 Malcolm Dan.
• 2 29 June. Dan noted that an approach treating Indonesia as the successor state ‘just might provide the Indonesians with a way to pay compensation without thereby admitting any involvement in or direct liability for the deaths of the journalists’. Dan added that the Embassy assessment was that ‘if it were put to them, the Indonesian Government would firmly reject this argument and decline even to discuss it’.
• 3 See Editorial Note: Air Travel to Timor, p. 485.