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Following violent clashes between two groups, one in favor of independence of East Timor and one against it, approximately two thousand pro-independence activists seek refuge in the church of Liquiça. An attack by an anti-independence militia causes the death and injury of many. It is claimed that several soldiers took part in the attacks. The commander of some of these soldiers, Intelligence Task Force officer Sudrajat, was present in Liquiça. Can he be held responsible for what happened?

Not according to the Indonesian Ad Hoc Tribunal for East Timor. The involvement of his personnel could not be established and the Tribunal considered the militia to be completely separate from the military. Thus, the Tribunal established that he had had no effective control over those who actually committed the crimes against humanity. Neither did it consider proven that he assisted in what happened. According to the Tribunal, he was there to look for a solution and tried to stop the actual attack to the best of his abilities. Sudrajat was acquitted, which added to the international community’s concern about the effectiveness of the Tribunal.

Following violent clashes between two groups, one in favor of independence of East Timor and one against it, people of the former group sought refuge. In Liquiça, they hid in a church. In Diri, they hid in the house of one of their foremen. The attacks by an anti-independence militia caused the death and injury of many. It is claimed that several soldiers took part in the attacks. The question was whether the commander, Suratman, present in the area at time of both attacks, could be held responsible for what happened.

According to the Indonesian Ad Hoc Tribunal for East Timor, this could not be done. The involvement of his personnel could not be established and it considered the militia to be completely separate from the military. Thus, the Tribunal established that he had no effective control over those who actually committed the Crimes Against Humanity. The Tribunal could not conclude that Suratman had not taken enough action to prevent human rights violations from taking place. According to the Tribunal, he was there to look for a solution to the best of his abilities. Suratman was acquitted, which added to the international community’s concern about the effectiveness of the Tribunal.

In the aftermath of the 1970 Chilean presidential elections, General Rene Schneider was killed as several military officers attempted to kidnap him. His sons allege that Henry Kissinger, then National Security Advisor to president Nixon, knew of the plans to kidnap Schneider and did nothing to stop it. The Court did not allow the case to proceed, stating that the claim made by Schneider’s sons could not be viewed separately from the context of US foreign policy at that time and that the judge should not rule on this.  Questions regarding foreign policy, the Court reasoned, should remain strictly within the domain of politics. Also, the Court held that Kissinger had acted within the constraints of his position of National Security Adviser and that therefore the defendant should be the United States, not Kissinger personally. However, the Court held that the United States enjoyed immunity for the alleged crimes. Therefore, the case was dismissed.

Eleven Guantanamo detainees petitioned for habeas corpus, claiming that their continued detention without a right to judicial review was unlawful.

The Court partly agreed with the detainees. While they are not US citizens, they are being held under control of the US government. The fact that Guantanamo Bay is conveniently placed outside US sovereign territory does not change this. Hence, Guantanamo detainees have the right not to be deprived of liberty without due process of law, a fundamental constitutional right. This right had been violated, and the Combatant Status Review Tribunal (CSRT) procedures were found unconstitutional. And regarding alleged Taliban fighters, the Court held that they are state forces - regular soldiers or combatants - and should therefore receive prisoner of war-status and -protection under the Third Geneva Convention. Where they had not received such protection without proper reasons, their detention was illegal.

All other claims (based on the Sixth, Eighth and Fourteenth Amendment and the Alien Tort Claims Act) were rejected, they were inapplicable on the current cases.

In the aftermath of the 1970 Chilean presidential elections, General Rene Schneider was killed as several military officers attempted to kidnap him. His sons allege that Henry Kissinger, then National Security Advisor to president Nixon, knew of the plans to kidnap Schneider and did nothing to stop it. The Court did not allow the case to proceed, stating that the claim made by Schneider’s sons could not be viewed separately from the context of US foreign policy at that time and that the judge should not rule on this. Questions regarding foreign policy, the Court reasoned, should remain strictly within the domain of politics.

The Court of Appeals agreed, refusing to differentiate between this particular alleged decision and the general tendencies of foreign policy in 1970. It therefore confirmed the dismissal of the case, stating that the Constitution had provided Congress with sufficient instruments to check the Executive’s conduct of foreign policy. It should be left to politicians to answer political questions, the Court reasoned, not to judges.