Unravelling the First Three Trials at Indonesia's Ad Hoc Court for Human Rights Violations in East Timor

Leiden Journal of International Law

Volumn 17, Issue 2, 2004, Pages 303-361

  Linton, Suzannah ^a  

^a NONE

Author keywords

Ad Hoc Court; crimes against humanity; East Timor; human rights; Indonesia

Indexed keywords

EID: 33744493571     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504001839     Document Type: Article

References (115)

1. The regular situation was explained by the Deputy Attorney-General to the Working Group on Arbitrary Detention in 1999 as being that ‘the vast majority of individuals chargedwith criminal offences are detained pending trial’. The Working Group found that the percentage of those who remain free, even on bail, is ‘minimal’ on the admission of the authorities themselves, and declared the situation to be incompatiblewith Article 9(3) of the International Covenant on Civil and Political Rights. See Report of theWorking Group on Arbitrary Detention on its visit to Indonesia (31 January-12 February 1999), UN Doc. E/CN.4/2000/4/Add.2 12Aug. 1999. There are, however,many examples of preferential treatment of accused and convicted persons on the basis of their social standing, wealth, and political support, and the treatment of the East Timor accused fits into the pattern. For a closer study of this issue, see Progress Report No. 11 by ELSAM's Ad Hoc Court Monitoring Team, ‘Menyoal tidak ditahannya terdakwa dan mereka yang divonis bersalah di Pengadilan HAM Ad Hoc Timor-Timur’.
2. LawNo. 26/2000 onHumanRightsCourts,Keppres (Presidential Decree)No. 53/2001 as amended byKeppres No. 96/2001.
3. HumanRightsWatch, ‘JusticeDenied for East Timor: Indonesia's ShamProsecutions, theNeed to Strengthen the Trial Process in East Timor, and the Imperative of UN Action’, 20 Dec. 2002.
4. Amnesty International, ‘Timor-Leste: International Community Must Press for Justice for Crimes against Humanity’, AI Index: ASA 57/007/2003; 29 Aug. 2002, and ‘Indonesia & Timor-Leste: International Responsibility for Justice’, AI Index: ASA 03/001/2003, 14 April 2003.
5. East Timor Action Network, ‘UN Human Rights Commission Abandons Justice for East Timor; Pretends Sham Indonesian Trials Are Redeemable’, 25 April 2003.
6. State Department spokesman, quoted by ABC Radio Australia News, ‘US Disappointed with Trials of Timor-Leste Crimes’, 6 Aug. 2003.
7. Declaration by the EU Presidency on the Ad Hoc Human Rights Tribunal for Crimes Committed in East Timor, 6 Aug. 2003; Statement by the Presidency of the EU on behalf of the EU on the Ad Hoc Human Rights Tribunal for Crimes Committed in East Timor, 27 Aug. 2002.
8. See A. Kohen, An Act of Genocide: Indonesia's Invasion of East Timor (1979); J. Taylor, East Timor: The Price of Freedom (1999); R. Clark, ‘Does the Genocide Convention Go Far Enough? Some Thoughts on the Nature of Criminal Genocide in theContext of Indonesia's Invasion of East Timor’, (1981) 8 (2) OhioNorthern University Law Review 321.
9. UnitedNationsOffice of theHighCommissioner forHumanRights, Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726, S/2000/59 (Jan. 2000).
10. Common Report of the Special Rapporteur of the Commission on Human Rights on Extrajudicial, Summary or Arbitrary Executions, Special Rapporteur of the Commission on the Question of Torture and Special Rapporteur of the Commission onViolence againstWomen, ItsCauses and Consequences, Report Submitted by the Secretary-General to the General Assembly on the Situation of Human Rights in East Timor, UN Doc. A/54/660 (1999).
11. Resolution No. 770/TUA/IX/99, amended by Resolution No. 797/TUA/X/99 of 22 Oct. 1989.
12. KPP-HAM's Executive Summary of its Report on the Investigation ofHuman RightsViolations in East Timor released on 31 Jan. 2000 (hereafter ‘KPP-HAM Executive Summary') is available in English at the website of the Indonesian embassy in Canada at www.indonesia-ottawa.org/news/Issue/HumanRights/ham-kpptimtim-01312000.htm.
13. These included the massacre at the Liquiça church on 6 April 1999; the attack on pro-independence leader Manuel Carrascalã o's home on 17April 1999; the attack on theDiliDiocese on 5 Sept. 1999; the attack on the house of Bishop Belo on 6 Sept. 1999; the burning of homes inMaliana on 4 Sept. 1999; the attack on the Suai church complex on 6 Sept. 1999; themurder at theMaliana police headquarters on 8 Sept. 1999; themurder of Dutch journalist Sander Thoenes on 21 Sept. 1999; and themurder of a group of clergy and a journalist in Los Palos on 25 Sept. 1999.
14. See ‘East TimorMassacre Suspects Named’, Christian ScienceMonitor, 5 Sept. 2000.
15. See ‘East TimorWantsMilitia Chief Judged in Dili’, Times of India, 12 Oct. 2000.
16. Undang-Undang Republik Indonesia Nomor 26 Tahun 2000 Tentang Pengadilan Hak Asasi Manusia (Law No. 26/2000 on Human Rights Courts), 23 Nov. 2000, published in the Official Gazette of the Republic of Indonesia Year 2000 No. 208 (hereafter ‘Law 26/2000').
17. Cited in J. Land, ‘Indonesia: TimorWar Criminals Remain Free’, Green LeftWeekly, 28March 2001; L.Withers ‘To End Impunity’, Inside Indonesia, July-Sept. 2001.
18. D. Asmarani, ‘Jakarta's East Timor Rights Probe Slammed’, Straits Times, 19 Sept. 2001.
19. ‘Trial of East Timor Human Rights Cases Delayed’, Jakarta Post, 13 June 2001.
20. ‘Rights Activists Applaud New Decree on Ad Hoc Tribunal’, Jakarta Post, 9 Aug. 2001.
21. ‘Timor Rights Tribunal Should be Ready in September: Judge’, Agence France-Presse, 2 Aug. 2002.
22. ‘Ad Hoc Tribunal to Start in October?’, Jakarta Post, 9 Aug. 2001.
23. ‘Indonesia to Set Up Human Rights Court for E Timor Atrocities’, Associated Press, 3 Oct. 2001.
24. T. Z. B. Simanjuntak and T. Siboro, ‘Rights Tribunal JudgesWill Be Impartial, Bagir Says’, Jakarta Post, 23Oct. 2001.
25. ‘The Human Rights Violations Theater’, TempoMagazine, 20-26 Nov. 2001.
26. ‘Government to Install 60 Judges for Rights Court’, Jakarta Post, 6 Nov. 2001.
27. CommitteeAgainstTorture,Consideration ofReport Submitted by States PartiesUnder Art. 19 of theConvention: Conclusions and Recommendations of the Committee Against Torture UN Doc. CAT/C/XXVII/Concl.3 (2001).
28. Judge Benjamin told Reuters on 26 November that President Megawati Sukarnoputri's approval was outstanding: ‘We are only waiting for that presidential letter. Late December, we will be set to begin trying the first cases. Timor and Tanjung Priok’, see ‘Indonesian Human Rights Court to Start NextMonth’, Reuters, 26 Nov. 2001. In December, the Chief Justice was saying: ‘The technical preparations for setting up the court are complete. Now we are just waiting for a presidential decree’; see ‘Indonesia Will Start Timor Trials in January: Chief Justice’, Agence France-Presse, 14 Dec. 2001.
29. W.Manggut, H. Pudjiarti, and D. Arjanto, ‘Special Report: Human Rights Court, Tough Battle Ahead’, Tempo Magazine, 22-28 Jan. 2002.
30. An independent electoral commission examined pro-integration complaints about the referendum and rejected them, and the Indonesian government publicly accepted the results of the referendum as free and fair.Yet in their recommendations on 22Nov. 2000, the investigative team in theAbilio Soares case concluded that UNAMET did cheat during the referendum process, for example by recruiting only local staff; siding with CNRT (National Resistance Council of Timor) and supporting anti-autonomy campaigns; taking steps to influence people and force themto choose CNRT; not callingwitnesses from pro-autonomy; advancing the announcement of the result without consultation; removing the ballot boxes without security and against regulations; failing to count the votes at the stations in the regencies, but rather counting them in Dili withoutwitnesses; and ignoring the protests of pro-autonomy. See Soares Prosecution Dossier, ‘Special Report: Human Rights Court, Tough Battle Ahead’ note 38, at 51.
31. In their recommendations on 7 Nov. 2000, the investigative team in the Timbul Silaen case concluded that UNAMET had ignored complaints about the referendum. Their assessment was that as a result of the defeat of pro-integration caused by the cheating conduct that occurred during the referendum process, there was deep disappointment expressed in a mass riot. See Berita Acara Pendapat (Resumé), Timbul Silaen Bekas Perkara (Prosecution Dossier) (hereafter ‘Silaen Prosecution Dossier'), at 47.
32. Berita Acara Pendapat (Resumé), 22 Nov. 2000, at 52, Soares Prosecution Dossier, the investigative team in the Timbul Silaen case concluded that UNAMET had ignored complaints about the referendum note 38.
33. Surat Dakwaan, Nomor: Reg. Perkara: 03/HAM/TIM-TIM/02/2002, 19 Feb. 2002 (hereafter ‘Suai Church Massacre Indictment'), at 4.
34. Surat Dakwaan, Nomor: Reg. Perkara: 02/HAM/TIM-TIM/02/2002 19 Feb. 2002 (hereafter ‘Abilio Soares Indictment'), at 4.
35. Prosecutor v. Zoran Kupreskić Case No.IT-95-16-T, Trial Chamber, 14 Jan. 2000 at para. 552; Prosecutor v. Dusko Tadić, Case No. IT-94-1-T, Trial Chamber, 7 May 1997 at para. 648. It is not a separate element of the crime, and is invariably to be found where there are widespread or systematic attacks on civilians.
36. Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber, 3 Sept. 1998, at para. 580.
37. Kupreskić case, Trial Chamber note 45, at para. 551.
38. Tadić case, Kupreskić case note 45, at para. 653.
39. Suai ChurchMassacre Indictment, Tadić case note 43, at 9.
40. Suai ChurchMassacre Indictment., at 6.
41. KPP-HAM Executive Summary, Suai ChurchMassacre Indictment note 12, at para. 43.
42. Letter from IanMartin to Agus Tarmidzi, 19 Aug. 1999, in D. Greenless and R. Garran, Deliverance: The Inside Story of East Timor's Fight for Freedom (2002), 184.
43. Suai ChurchMassacre Indictment, Letter from IanMartin to Agus Tarmidzi note 43 at 5, 11. Note that although Herman Sedyono was a serving military officer in Kopassus (special forces), he had no command authority over the police or the TNI in his capacity as regent of Covalima.
44. The depiction of his role as presented in Jakarta can also be contrasted against the investigations by Yayasan Hak, EastTimor's leadinghumanrightsNGO, inits report, ‘Laporan InvestigasiLimaKasusBesarPelanggaran HamTimor Lorosae 1999’, 30 Nov. 2001, as well as against UNTAET's twomajor Covalima indictments. The first Covalima Indictment, General Prosecutor v. EgidioManek et al., CaseNo.9/2003, charges 11 Laksaurmilitia members with 51 counts of crimes against humanity, including the killing of 27-200 persons at the Suai church. The second Covalima indictment, Case No. 14/2003, charges 16 higher-ranking accused, including the five accused in Jakarta's Suai Church Massacre case, Case No. 03/HAM/TIM-TIM/02/2002 (hereafter ‘Suai Church Massacre case'), with 27 counts of crimes against humanity. The indictments are available at http://www. jsmp.minihub.org.
45. Unofficial English translation, KPP-HAM Executive Summary, The depiction of his role as presented in Jakarta can also be contrasted against the investigations by Yayasan Hak, EastTimor's leadinghumanrightsNGO, inits report, ‘Laporan InvestigasiLimaKasusBesarPelanggaran HamTimor Lorosae 1999’ note 12, at paras. 42-44.
46. Emilio Bareto (Liquiça massacre survivor, testified), Joao Perreira (Liquiça massacre survivor, testified), Jose Menezes Nunes Serrao (Liquiça massacre survivor, did not testify and his statement was not read into the record); Nelio Mesquita da Costa Rega (diocese of Dili massacre survivor, did not testify and his statement was read into the record), Maria Fereira Soares (survivor of the Dili Diocese and Bishop Belo's residence massacres, did not testify and her statement was read into the record), Joao Bernandino Soares (Dili Diocese massacre survivor, did not testify and his statement was read into the record), Vincente A. G. de Sousa (Dili Diocesemassacre survivor, did not testify and his statement was not read into the record).
47. Reported in Suara Timor Timur, April 1999, and by the NGO Yayasan Hak inMay 1999.
48. Fr Raphael dos Santos testified from East Timor by video link.He said that Indonesian soldiers and policemen were among the attackers of his refugee-packed church in the town of Liquiça in April 1999; ‘East Timor Clergyman Says Soldiers Among 1999 Church Attackers’, Jakarta Post, 24 Jan. 2003.
49. Unofficial transcript of the testimony of Armando dos Santos, JSMP observer, 29 and 30 Jan. 2002.
50. Yayasan Hak, ‘Kasus Besar Pelanggaran Ham Timor Lorosae 1999’, 30 Nov. 2001, 45.
51. Gatot Subiyaktoro, Timbul Silaen case, Case No. 01/HAM/TIM-TIM/02/2002 (hereafter ‘Timbul Silaen case'), Transcript, 16May 2002, at 54.
52. Timbul Silaen case., at 56.
53. Timbul Silaen case., at 61.
54. Timbul Silaen case., at 21.
55. Author's own notes, Timbul Silaen case, Testimony of Adios Salova, 2May 2002.
56. Hulman Gultom, Timbul Silaen case, Transcript, 2May 2002, at 10.
57. Timbul Silaen case., at 22.
58. Timbul Silaen case., at 10.
59. Timbul Silaen case., at 23. See earlier discussion concerning allegations that the police tortured those arrested so that they would deny that any members of the security forces took part in the attack.
60. See earlier discussion concerning allegations that the police tortured those arrested so that they would deny that any members of the security forces took part in the attack., at 15.
61. See earlier discussion concerning allegations that the police tortured those arrested so that they would deny that any members of the security forces took part in the attack., at 24.
62. See earlier discussion concerning allegations that the police tortured those arrested so that they would deny that any members of the security forces took part in the attack. Prosecution priorities are revealed by the summoning of the police chief of Baucau to testify as a prosecutionwitness about the arrival of Bishop Belo in Baucau following his rescue by air fromDili and how, at the orders of the accused Timbul Silaen, the bishop was eventually airlifted out of East Timor to Australia. The witness had no other relevant information to provide.
63. Prosecution priorities are revealed by the summoning of the police chief of Baucau to testify as a prosecutionwitness about the arrival of Bishop Belo in Baucau following his rescue by air fromDili and how, at the orders of the accused Timbul Silaen, the bishop was eventually airlifted out of East Timor to Australia., at 24, 25.
64. Author's own notes, Abilio Soares case, Case No.02/HAM/TIM-TIM/02/2002 (hereafter ‘Abilio Soares case'), Testimony of Tono Suratman, 18 April 2002, at 18.
65. Author's own notes., at 22.
66. Author's own notes, Abilio Soares case, Testimony of Adam Damiri, 8May 2002.
67. Author's own notes, Abilio Soares case, Testimony of Tono Suratman, 18 April 2002.
68. Author's own notes, Abilio Soares case, Testimony of Adam Damiri, 8May 2002.
69. Eurico Guterres, Abilio Soares case, Transcript, 30May 1999, at 33.
70. Abilio Soares case., at 12.
71. Abilio Soares case., at 5-6.
72. Abilio Soares case., at 34.
73. Sony Sanjaya, Suai ChurchMassacre case, Transcript, 13May 2000, at 33.
74. Suai ChurchMassacre case., at 34.
75. Wayan Suka Antara, Suai ChurchMassacre case, Transcript, 23 April 2002, at 19.
76. Sony Iskandar, Suai ChurchMassacre case, Transcript, 23 April 2002, at 5, 6.
77. For example, Timbul Silaen handed over a police report on investigations into Liquiça case (Laporan Penanganan Kasus Liquisa, No.pol.R/355/IV/99/Ditserse). This document is also one of those referred to by KPP-HAM, so it was in the hands of the Attorney General's Office on at least two occasions, but did notmake it to court. The investigator who compiled the report, Carlo Brigs Tewu, had spoken to the investigators in his interview on 14 June 2000 about the obstruction by the Liquiçamilitary district command. In answer to question 9 (at 3), he said that the investigation of the Liquiça case ‘couldn't get to the Prosecutor because the situation was not conducive, besides that, the handling of the case was blocked, because there were several suspected perpetrators (koramil [military subdistrict command] members) who didn't want to comply with summonses from investigators, even though they were sent and an officerwas despatched from Polda Timor Timur [East Timor Police] to convey it personally to the commander’.
78. Record of examination,Wiranto, Silaen Prosecution Dossier, Timbul Silaen handed over a police report on investigations into Liquiça case note 40, Response to Question 7, 16 May 2000, at 5.
79. Surat Telegram Panglima TNI Nomor: STR/904/1999, to Pangdam and Kapolda, 5 Sept. 1999; and Surat Telegram Panglima TNI Nomor: STR/906/1999 to Panglima Udayana as Pangko Ops Nusra, 5 Sept. 1999.
80. KPP-HAM Executive Summary, Surat Telegram Panglima TNI Nomor: STR/904/1999 note 12, at para. 50.
81. See, for example, Yayasan Hak, ‘Gelombang Kekerasan Adalah Sabotase Terhadap Jajak Pendapat: Laporan Pemantauan’, 22 Aug. 1999;MateBEAN news service, cited in H.McDonald et al.,Masters of Terror: Indonesia's Military and Violence in East Timor in 1999, Canberra Papers On Strategy and Defence 145 (2002), 278; and the International Federation for East Timor Observer Project,Media Release ‘IFETT-OPWarns of Ominous Signs of Renewed Paramilitary Violence in Aftermath of Vote’, 1 Sept. 1999.
82. Reproduced as annexes in Yayasan Hak, ‘Laporan Investigasi Lima Kasus Besar Pelanggaran HAM Timor Lorosae 1999’, 30 Nov. 2001.
83. This applies to all the killing sites, with the prosecution witnesses (bar the three East Timorese) claiming that it was not possible to distinguish the political affiliations of the East Timorese through what they wore. For example, Adios Salova, the former police chief of Liquiça, claimed: ‘I couldn't distinguish [the people at the church]; what was clear was that they were from the community.’ Adios Salova, Timbul Silaen case, Transcript, 2May 2002, at 12.
84. See Greenless and Garran, This applies to all the killing sites, with the prosecution witnesses (bar the three East Timorese) claiming that it was not possible to distinguish the political affiliations of the East Timorese through what they wore note 52, at 121.
85. Jehezkiel Berek, Suai ChurchMassacre case, Transcript, 30 April 2002, at 14, 15.
86. Record of examination, Gatot Subiyaktoro, Silaen Prosecution Dossier, Greenless and Garran note 40, Question 13, 9 June 2000.
87. Author's own notes, testimony of Gatot Subiyaktoro, Suai ChurchMassacre case, 5 July 2002.
88. Author's own notes., at 6.
89. Gatot Subiyaktoro, Timbul Silaen case, Transcript, 16May 2002, at 11, 25, 27, 35, and passim.
90. Timbul Silaen case., at 11.
91. Timbul Silaen case., at 25.
92. Daftar Lampiran Surat PerintahNo. PRIN-02/E/EJP/08/2000, contained in the dossiers, shows that the following were confiscated from West Timor: 36 SKS, 4 G2 SKS, 2 G3 SKS, 3 Mausers, 1 SNP SS1, 1 Pistol FN 45, 1 Pistol L. Lana, 2 Pistol PL, 2 Pistol P1 Pindad, 186 home-made guns, ammunition, and 18 grenades.
93. Ludo Fikus Ulu Manek, Suai Church Massacre case, Transcript, 11 June 2002, at 19.
94. See, for example, the Prosecutor's question toformerregentofCovalimaHermanSedyono: ‘Therewasalready pamswakarsa, but in order to protect the local vicinities, the governor instructed the Bupatis to activate them, givethemincentives, to them, pamswakarsa because they left their regular jobs, thatwas the instruction from the governor. Did you not feel therewere such instructions?’ Herman Sedyono, Abilio Soares case, Transcript, 17 April 2002, at 7.
95. See, for example, the Prosecutor's question to former regent of Covalima Herman Sedyono: ‘For the period that you were Bupati or held the office of Bupati Kovalima from 1994, untilNov. 1999, could you explain the incidents in your district, what happened in your district, mainly about the people or East Timorese society, or the sociological or political situation?’ Herman Sedyono, Abilio Soares case, Transcript, 17 April 2002, at 3.
96. Eurico Guterres, Abilio Soares case, Transcript, 30 May 2002, at 14.
97. Jehezkiel Berek, Suai ChurchMassacre case, Transcript, 30 April 2002, at 19.
98. Author's own notes, Gatot Subiyaktoro, Suai ChurchMassacre case, 5 July 2002.
99. Yopi Lekatompessy, Suai ChurchMassacre case, Transcript, 30 April 2002, at 9.
100. PP No. 2 Tahun 2002 Tentang Tata Cara Perlindungan Terhadap Korban dan Saksi Dalam Pelanggaran HAM Yang Berat, supplemented by PP No. 3 Tahun 2002 Tentang Kompensasi terhadap Korban.
101. Dominggas dos SantosMuzinho, Suai ChurchMassacre case, Transcript, 28May 2002, at 16 and 17.
102. Dominggas dos SantosMuzinho., at 23.
103. Dominggas dos SantosMuzinho., at 48, 49.
104. Dominggas dos SantosMuzinho., at 47, 48.
105. Dominggas dos SantosMuzinho., at 75-7.
106. In the matter of Herman Sedyono and Others, Reading of the Judgement, Transcript, Ref: 03/HAM/TIMTIM/ 02/2002, 15 Aug. 2002, at 56-7.
107. the matter of Herman Sedyono and Others., at 60.
108. the matter of Herman Sedyono and Others., at 82.
109. the matter of Herman Sedyono and Others., at 82.
110. Author's own notes, Testimony of Emilio Bareto, Timbul Silaen case, 30May 2002.
111. Silaen Prosecution Dossier, Author's own notes note 40, Record of Examination,Maria Fereira Soares, 22 July 2000.
112. Silaen Prosecution Dossier., at 5.
113. Abilio Soares case, Judgement, Verdict No. 01/PID.HAM/AD.HOC/2002/PH.JKT.PST, 7 Aug. 2002.
114. It is striking that the prosecution chose to rely on witness statements taken by their office during the trip to East Timor in 2001 rather than use video conferencing facilities, which were used for the first time in the Akbar Tandjung case in July 2002. They did so knowing full well that the statements were challenged by defence for non-compliance with KUHAP as having been partly conducted by officials who were not from the Attorney General's Office (UNTAET police officers were used as conduits through which the Attorney General'sOffice placed the questions to thewitnesses). Itwas also clear that, in general, the statements could be challenged as not reliable, given the extent of the changing of testimony as already discussed inthis report. In the Suai Church Massacre case they paid the price, since the panel considered the three victim-witness statements (of Tobias dos Santos, Fres da Costa, and Armando de Deus Granadero) read into the record to be weak simply because they were challenged by the accused.
115. The Lumintang Order is even widely disseminated on the internet; see, for example, the website of the East Timor Action Network at http://www.etan.org. See Jane Doe et al. v. Lumintang, Civil Action No. 00-674 (GK) (AK), United States District Court for the District of Columbia, Findings of Fact and Conclusions of Law, 10 Sept. 2001, available at http://www.etan.org/news/2001a/10lumjudg.htm.