Caroline Overington – The family of one of the Balibo Five believes the Rudd government has deliberately inflamed a wrenching dispute over the remains of the dead to avoid having to confront Jakarta over the invasion of East Timor, and the violent death of their kin.

The Weekend Australian reported that families of the five journalists were in dispute over whether the remains should be exhumed, and that the Australian Federal Police was reluctant to exhume the grave without permission from all five families.

Gary Cunningham's son, John Milkins Cunningham, said the government had linked the exhumation of the bodies with the investigation into the crime, in order to avoid a trial that would strain relations between Canberra and Jakarta.

The family has legal advice from the director of the Centre for International Law at Sydney University, Ben Saul, that the killing of the five unarmed journalists was a war crime.

For a war crime to exist, it must first be established that an "armed conflict" existed between at least two state parties.

In the current issue of the Australian Law Journal, Dr Saul argues that the Indonesian invasion of East Timor in October 1975 "triggered an international armed conflict within the meaning of the... Geneva Conventions". It was "no secret that those operations both directly involved Indonesian military forces and were closely directed and controlled by Indonesia".

Then, too, there was "protracted violence between government authorities and organised armed groups" including Fretilin (which met the invasion with military resistance on "a significant and organised scale").

Dr Saul says unarmed journalists are non-combatants under international humanitarian law, and the "wilful killing of a non-combatant" is not an act of war. He notes that "not every killing in a war zone is a war crime" since ordinary criminal conduct (such as the crime of murder) can co-exist with war.

To qualify as a war crime, the killing of the Balibo Five must be "closely related to the armed conflict as a whole" and the Balibo killings "occurred in the direct context of a military operation".

Indonesia has always said that the five were killed in crossfire in Balibo, but after taking testimony from witnesses and examining previously unreleased intelligence, a Sydney coroner ruled in 2007 that they were "shot and stabbed deliberately, and not in the heat of battle, by members of the Indonesian Special Forces".

The coroner named one of the killers as Captain Yunus Yosfiah, who went on to become an Indonesian MP.

"Most Australians would agree that there is no statute of limitations on war crimes," Mr Milkins Cunningham said.

He said it wasn't clear that the Rudd government's envoy for the Asian Pacific Community Plan, Richard Woolcott, who was Australian ambassador to Indonesia when the five were killed, had formally accepted the 2007 findings of the NSW coroner that the Balibo Five were deliberately killed in order to cover up the impending invasion of East Timor by Indonesia.