By: Mark Leon Goldberg on March 01, 2014 The Act of Killing, which is up for an Oscar on Sunday for Best Documentary, is a seriously confounding film. The films’ protagonists were part of a murderous frenzy in 1965 that lead to the killing of at least 1 million suspected “communists” and ethnic Chinese in Indonesia. The Act of Killing depicts old members of a death squad acting out their memories — fantasies even — of the murders and atrocities they committed nearly 50 years ago. If you are a reader of UN Dispatch or just generally care about human rights you need to see this documentary. The Act of Killing raises profound questions about international human rights law, accountability, historical memory, and even the role of sadism in mass atrocity events. The film left me perplexed, so I invited some of the smartest human rights wonks around to help think through some of these questions. Here to discuss the film with me are: Rebecca Hamilton, human rights lawyer, journalist and author of Fighting for Darfur. She teaches at Columbia Law School and tweets @bechamilton Kate Cronin-Furman, lawyer and political scientist who researches accountability for mass atrocities. She blogs at wrongingrights.com Daniel Solomon, a writer and consultant based in Washington, DC. He blogs at Securing Rights, and is a former national director of STAND, a national student network of student advocates for mass atrocity prevention. Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London Principal Fellow, Melbourne Law School. He blogs at opiniojuris.org Kimberly Curtis, Lawyer and UN Dispatch contributor. Mark Leon Goldberg: Let’s kick this off! First, a legal question that has been bugging me: Do you think the film reveals evidence of genocide? To be sure, most of those murdered were killed because they were deemed to be “communists” and not because of their ethnicity. But the protagonists of the documentary–Anwar Congo and his death squad — also boast about hunting down ethnic Chinese Indonesians. The death squad’s logic seemed to be that ethnic Chinese must, ipso facto, be “communists.” I’m no lawyer, but that reeks of genocidal intent to me. Rebecca Hamilton: It’s a similar classification challenge to Cambodia. While many of us believe “political group” should have been included in the Genocide Convention, we are stuck with the Convention we’ve got – “communists” are not a protected group. And what I couldn’t tell from the film was whether there was an intent to destroy ethnic Chinese Indonesians as such, or whether ethnicity just served as a convenient proxy for the target group of “communists” (actual or perceived). But in many ways the answer to this question is less important that what is crystal clear – the commission of crimes against humanity by perpetrators who are living out their lives with total impunity. For me, “The Act of Killing” is a 2-hour long rebuttal to Mbeki and Mamdani’s recent NYT op ed. While I agreed with aspects of their editorial, this documentary is a chilling insight into what society you can end up with when there has been no accountability. Kimberly Curtis: I largely agree with Rebecca. Genocide has a certain dramatic appeal but we need to keep in mind that it is a specific act with a specific definition and targeting people based on their political affiliation doesn’t fit. While some acts described in the film make clear some of the violence was ethnically based, it is also clear the primary marker of a victim was their alleged involvement with the PKI. It is clear that gross human rights abuses and crimes against humanity occurred here. Just because it doesn’t fall under the genocide label doesn’t mean that these crimes are any less severe. Daniel Solomon: On the one hand, I sympathize with Bec and Kimberly’s respective takes. Within the strict confines of the Genocide Convention–that is, a legal definition of the event–the atrocities of Sukarno’s “death squads” don’t quite fit. Beyond the Convention, “genocide” has become a term of anthropological reference for a much broader swath of identity-motivated violence–in Anwar Congo’s era, and since. In the Indonesian society that Oppenheimer’s documentary recalls, a victim’s identity is neither exclusively “political” nor exclusively “ethnic”–as Mark suggests, the two identity markets blend and interact, often as a consequence of perpetrators like Congo’s militia. (As a sidenote, that’s one of the challenging facets of the film: in a movie about perpetrators, the agency of victims and survivors in defining their own identities amid violence is difficult to find.) Mark Leon Goldberg: Genocide or not, we know crimes against humanity were committed–the protagonists gleefully admitted as much. What avenues exist for bringing these people to justice, if any? The ICC is out of the question because it cannot prosecute crimes before 2002. Presumably, the Indonesian justice system should pursue the case, but there does not seem to be much willingness to do so. So what can be done? Kevin Jon Heller: Just to make myself quickly and effectively unpopular: I seriously doubt the acts in question even qualify as crimes against humanity (CAH) — at least legally. WW II-era jurisprudence was quite clear that CAH required a nexus to war crimes or crimes against peace; purely “peacetime” acts might be criminal under domestic law, but they did not offend international law. I don’t think there is a serious argument that the nexus had been eliminated from the definition of CAH by 1965. The [Cambodian War Crimes Tribunal] concluded in Case No 001 that the nexus no longer existed as of 1975, based on one paragraph in an expert report commissioned by the UN. Even that conclusion was questionable, but at least the experts could point to the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which did not contain the nexus. But note the date — 1968, after the events in question in Indonesia. So, too, the 1973 Apartheid Convention, which also removed the nexus. This is, in my view, a major problem for accountability. I don’t think the Indonesian killings could be described as war crimes — even if the coup itself created an armed conflict (doubtful), it was over before the purges started — so I don’t see how they qualify as international crimes at all. Which means, unfortunately, that the only possible accountability mechanism, universal jurisdiction, is off the table. The bottom line, then, seems to be that only Indonesia itself could prosecute the events in 1965 and 1966. I will, of course, not hold my breath. Rebecca Hamilton: Ever the optimist when it comes to justice eventually having its day, I’d like to at least say it’s arguable. I missed that the killings were complete by 1966 when I watched the film (and I went in with such an appalling dearth of knowledge of Indonesian history that it wasn’t part of my general knowledge to begin with), but that being the case Kevin’s right it would be much clearer if it was after the 1968 Convention. Presumably an aggressive prosecutor might try to argue that since the ILC’s 1954 Draft Code already eliminated the nexus, the Convention merely solidified an already existing trend against it. Honestly, I think that’s a stretch given states’ reactions even in 1968 to the Convention. (For legal nerds reading this, check out Stuart Ford’s paper on when the nexus was eliminated in relation to the ECCC, or if you want to go deeper, Ch. 10 of Kevin’s book on the origins of ICL). Alternatively, and having now looked a little beyond the film, it seems that there are reports of at least some counts of political persecution and murders of perceived communists, including those imprisoned, in 1969. I say this again with the caveat that I have little pre-existing knowledge about this period of Indonesia’s history, but to the extent such killings can be still be documented, and involved similar power structures to the 1965-66 campaign, that could be another way of securing some form of accountability, even while failing to prosecute the primary killings. Still, in light of the difficulties – and the implications that these cases could open up for the complicity of Western powers, even at just a moral level – it’s hard to see a universal jurisdiction case ever seeing the light of day. And as Mark points out, the ICC is decades out of the running for jurisdiction. Thus we end up at the same bleak conclusion: Indonesia itself is the forum for accountability – and a highly unlikely one at that. Kimberly Curtis: Even if the legal issues were resolved there are still significant practical and political barriers to any type of traditional accountability. The ICC is not an option but the establishment of an ad hoc or hybrid tribunal is also unlikely due to the experience in Cambodia with the [War Crimes Tribunal, known as the ECCC]. Many of the same elements exist here as with Cambodia, including dealing with crimes that happened far in the past, a government that is related to or connected with those crimes and a culture of corruption in the countries at issue. The ECCC has been incredibly expensive with very few outcomes and a constant battle for the UN and donor states. I don’t think anyone is too keen to repeat that experiment. That means any action would have to be undertaken by Indonesia itself. I am not familiar enough with the Indonesia legal code to know if that is even possible, but assuming it is there are still significant barriers. We are talking about crimes that happened nearly 50 years ago. Those who bear the most responsibility are probably already dead or very close to it, witness testimony after 50 years would likely have credibility issues, as would any physical evidence. And in the end, the film showed just how much power and influence many of these people still hold today. Again, I don’t think anyone in Indonesia is too keen to give up that power in order to prosecute themselves. With judicial accountability off the table, a truth and reconciliation commission could be an option but it too would face many of the same problems that a domestic prosecution would. From what I understand, this chapter in Indonesian history is not really taught in schools and not really talked about openly in society, at least regarding the level and brutality of the killings. After 50 years, I’m not sure there is enough motivation in general society to get a well-funded and mandated TRC up and running. So in the end, I am pessimistic on the likelihood that any of these people will be held accountable for the acts they committed. Daniel Solomon: I am not confident of Indonesia’s prospects for formal justice and accountability, at least in the criminal sense. International judicial mechanisms–an ad-hoc tribunal, given the ICC’s mandated absence–are unlikely, and so the burden returns to Indonesia’s domestic courts. One might extrapolate from the recent foibles of Guatemala’s Rios Montt case: thirty years after the atrocity occurred, domestic prosecutors wage a heroic accountability effort, only to be thwarted by the messy politics of the country’s legal bureaucracy. Given the overlap, which Kimberly mentioned, between Sukarno’s beneficiaries and Indonesia’s present elites, full accountability appears elusive. Mark Leon Goldberg: One issue that this film raises is the role of sadism in committing mass atrocities. I realize now that prior to watching this film, I had generally thought of perpetrators of mass atrocities as faceless automatons, acting under orders of some higher authority to kill sufficiently dehumanized the victims. Grisly as it was, to individual Interhamwe/Nazis/Janjaweed, they were just doing a job. It never occurred to me that perpetrators of mass atrocities may actually take pleasure from their acts, as Anwar Congo’s death squad seemed to do. Do you think sadism is a necessary condition for committing mass atrocities? Do political leaders like Slobodan Milosevic or Omar al- Bashir depend on the fact that some percentage of foot soldiers in their ranks are sadists? Kate Cronin-Furman: One of the things that struck me about the film was the depiction of how a real range of psychological types reacted to involvement in extraordinary violence. While Ady comes across as a true sociopath with no remorse, Anwar, despite his initially cold-blooded presentation, is clearly capable of empathy. Watching him suffer as he began to revisit his actions was almost more disturbing than hearing Ady chuckle as he described killing his girlfriend’s father. It shows that under the right circumstances, “normal” people are capable not only of distancing themselves from their fellow humans sufficiently to slaughter them under orders, but can actually take pride and even joy in the work. Relatedly, it was amazing to me that the person who actually comes off worst was not the man making a movie glorifying the 1,000 murders he’d committed, or the one who insisted he had nothing to feel guilty over; it was the journalist who, nearly a half century later, insisted that he hadn’t noticed the torture going on in the office next door. Rebecca Hamilton: That journalist! I had such a conflicted reaction to him. Outrage over the bald-faced denial, but also a feeling of, here finally is someone who at some level must understand that what happened was actually wrong, otherwise why pretend you didn’t know about it? Until the point in the film when Anwar begins to develop some insight into what his actions meant for his victims, it was such a surreal experience for the viewer to enter a universe in which there seemed to be no recognition of wrongfulness whatsoever. Even in the rare instance of hearing from one of the victims – and this was the most heartbreaking moment in the film for me – there was a painful effort by him to cast the recollection of his step-father’s kidnapping and murder as merely useful material for a film that glorified necessary actions. On Mark’s question more directly, the striking thing to me in listening to the perpetrators was the absence of ideological motivation – and in its place the role for sadism and the bizarre meshing of Hollywood fiction and reality. Other perpetrators I’ve spoken with directly, the most notorious being Janjaweed leader Musa Hilal, seem to consistently emphasize the “threat” the target group posed. Now perhaps that is just an act of self-justification and/or a product of a situation where accountability is still very much a risk for them – I’m not sure. If Ady and Anwar really thought they might one day be prosecuted, might they have de-emphasized the role of sadism and instead portrayed themselves as part of a struggle for survival against the “threat” of Communism? Kate Cronin-Furman: The story of the step-father’s killing stuck with me as well. It so painfully underscored what it means to be member of a society with no accountability for acts of mass atrocity. To live side by side with those who have committed terrible crimes against you, to see every day the man who tortured your father, raped your sister, or murdered your child. And because impunity is the rule, rather than the exception, this is the reality for huge numbers of people around the world. I must use the phrase “right to justice” at least once a day, but watching that poor man struggle to tell his story of victimization in a way that would interest the perpetrators really drove home what it means to be deprived of that right. Mark Leon Goldberg: The most insane scene to me was the TV talk show in which a young host, probably in her mid 20s, lavished effusive praise for Congo’s murderous conduct 50 years ago. For comparison’s sake: We’d would never see a popular German TV host in 1990 cheer on an SS officer for his exploits during the war. German society has learned to accept responsibility for the Holocaust, which has been engrained in subsequent generations through education and politics. I wonder to what extent the general lack of remorse and lack of self-reflection by both the individual perpetrators and society-at-large is a consequence of the fact that the people and political parties who benefited from this campaign of violence are still very much in charge? Kimberly Curtis: The talk show scene did not really surprise me as it matches the other information in the film regarding how open these acts were committed and the impunity they enjoyed since. Generally this does not seem to be considered a dark chapter of Indonesia’s history, so why would there be any need to try and sugarcoat it, especially in front of an audience of fatigue wearing Pancasila Youth? This makes it different from the example of Nazi Germany where by virtue of Allied occupation, Germans were not given the choice of whether or not they wanted to hold regime accountable. That led to a culture of accountability that does not exist in Indonesia. What was more telling about that scene was the reaction of the technicians watching the interview. Away from the audience and perpetrators, the picture the technicians painted in their opinions of the former killers was far from positive. From ruminating about the mental impact of the killings on the killers to their corruption since, it gave a much more honest view of how many in the community probably view them, which is far from the glory that the other characters in the film frame their actions. For what it’s worth, [director] Joshua Oppenheimer wrote a piece in The Guardian recently that outlined the genesis of the film (it originally focused on survivors) as well as the reaction to it in Indonesia. It appears the film has finally broken the wall of silence that generally surrounded the killings. While Indonesia still has a long way to go in terms of accountability and reconciliation, for the first time these things are actually being discussed by the government and the community. It is a step in the right direction even if it is long overdue. Daniel Solomon: I’d be remiss if I didn’t raise the final scene, in which Oppenheimer captures Anwar Congo’s literally sickening collapse–the scene, I think, underscores both the complexity of the perpetrators’ sadism, as Mark referenced, and the justice gap that Kate and Kimberly have described. In the scene, Congo retches into the trough in the rooftop-prison, where the militia would torture and kill its captives, in between descriptions of their atrocious acts. Congo’s monologue suggests the empathy that Kate referenced–remorse, or at the very least internal suffering, is possible. This emotion betrays the allegedly total sadism of the militia’s perpetrators, but the outcome is the same: at the end of the monologue, he returns downstairs, to the society that won’t punish him for his crimes. I was left wondering what justice, in the formal sense, would mean for the perpetrators of the militia’s crimes, in addition to their victims. Would Congo’s imperfect remorse look different from the inside of a jail cell? Thanks to everyone for participating. Readers: if you haven’t yet seen this film, you must. But don’t expect to sleep soundly that night.