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Full Name: ABILIO JOSE OSORIO SOARES
Place of Birth: Lacubar
Age/Date of Birth: 53 years/ June 2, 1947
Sex: Male
Nationality: Indonesia
Residence: Jl. Tim-Tim Km.II Kupang NTT and
Jl. Teluk Semangka, Duren Sawit, Jakarta Timur
Religion: Catholic
Occupation: PNS
Last Position: Governor of East Timor
The Accused was not detained;
The Accused was represented by a Legal Counsel team: Otto Cornelis Kaligis,
SH, et al, based on Special Power of Attorney dated 04 March 2002;
The Ad Hoc Human Rights Tribunal;
After reading the files relating to the case;
After reading the Decision of the Head of the Human Rights Court of Justice
of Central Jakarta No: 01/PID.HAM/AD.HOC/2002/PH.JKT.PST., dated February
21, 2002, concerning Appointment of Panel of Justices to examine and try the
case;
After reading the Decision of the Head of Panel of Justices No: 01/PID.HAM/AD.HOC/2002/PH.JKT.PST.,
dated February 28, 2002, concerning Determination of Trial Date;
After hearing a reading of the Charging Document by the Public Prosecutor,
File Case No: 02/HAM/TIM-TIM/02/2002 dated February 20, 2002;
After reading Preliminary Verdict No.01/PID.HAM/AD.HOC/2002/PH.JKT.PST.,
read by the Panel of Justices before the court on April 4, 2002, which
states the following:
1. Objection submitted by the Accused's Legal Counsel Team is overruled;
2. The Charging Document submitted by the Ad Hoc Public Prosecutor read on
Thursday, March 14, 2002 meets requirements and is therefore acceptable as
grounds for examination in this case:
3. The Ad Hoc Human Rights Court of Central Jakarta shall continue to
examine the Accused Abilio Jose Osorio Soares;
After hearing:
The criminal charge submitted by the Ad Hoc Public Prosecutor dated July 11,
2002 of Serious Human Rights violations in East Timor that states the
following:
CHARGES
That the Panel of Justices for the Ad Hoc Human Rights Court of Central
Jakarta examining and trying this case, rules:
1. To find the Accused: Abilio Jose Osorio Soares guilty of crimes against
humanity under Law:
First: by violating Article 42 verse (2) a and b jis Article 9 letter a,
Article 37 of Law Number 26 Year 2000 concerning Human Rights Tribunal
Second: by violating Article 42 verse (2) a and b jis Article 7 letter b,
Article 9 letter h, Article 40 of Law Number 26 Year 2000 Concerning Human
Right Tribunal.
As stated in the Public Prosecutor's Charging Document mentioned above.
2. To convict the Accused Abilio Jose Osorio Soares with a prison sentence
of:
10 (ten) years 6 (six) months
3. To state that the evidence:
1) 2 (two) pieces of cloth drapery
2) 1 (one) pair of brown slippers
may be used in another case
4. To rule that the Accused pay court costs amounting to Rp.5,000,- (five
thousand rupiah)
In considering, that after hearing the Defense Closing Brief by the Accused
that in essence calls for the Panel of Justices to determine his support for
the oppressed and the persecuted but that was never perceived by those
fighting for Human Rights, due to having been absorbed and trapped in a
biased, narrow and tendentious understanding of democracy, that therefore
the law, justice and truth may be upheld;
And after also hearing the Defense Closing Brief by the Accused's Legal
Counsel Team on July 18, 2002, which contents, in essence, are as follows:
1. Stating the Accused Abilio Jose Osorio Soares to be proven not guilty
legally and with certainty by law, of the acts he is accused of on the first
and second charges;
2. Freeing the Accused Abilio Jose Osirio Soares from all accusations (vrijspraak);
3. Or at the very least releasing the Accused Abilio Jose Osirio Soares from
all legal charges (ontslaag van alle rechtsvervolging);
4. Restoring the good name, esteem, dignity and position of the Accused
Abilio Jose Osirio Soares to their original state;
5. Charging all trial costs to the state.
The Ad Hoc Public Prosecutor's Replication stating their charges will be
maintained:
The Rejoinder of the Accused Abilio Jose Osorio Soares and his Legal Counsel
that in essence respectively states the defense will be maintained;
In considering, that in accordance with the Ad Hoc Public Prosecutor's
charges dated February 14, 2002, Case No.: 02/HAM/Timor Timur/02/2002, the
Accused is accused of the following:
FIRST:
That he, the Accused Abilio Jose Osorio Soares as Governor KDH TkI of East
Timor was installed on the basis of KEPPRES RI Number 260/M/Th.1997 dated
September 16, 1997, on April 3, 4, 5, 6, 1999, on April 17, 1999, on
September 4, 5, 6, 1999, or in the times in the months of April and
September 1999, situated in Kabupaten Liquisa, in Kabupaten Covalima (in
Suai town), in Kabupaten Dili and Administrative town of Dili or at least in
the Province of East Timor which the Ad Hoc Human Rights Court at the
District Court of Central Jakarta is authorized to examine and rule on the
case of the Accused on the basis of Article 2 Keppres No. 96 year 2001
concerning changes to Keppres No. 53 year 2001 concerning Establishment of
Ad Hoc Human Rights Court at the District Court of Central Jakarta, the
Accused as Governor KDH Tk.I East Timor and as the superior of Bupati KDH
Tk.II Kabupaten Liquisa, Leonito Martins, Bupati KDH Tk.II Covalima, Drs.
Herman Sedyono, and Deputy Commander of Pejuang Pro Integrasi (PPI) Eurico
Gutteres in Kabupaten Dili/Administrative town of Dili in Dili is criminally
responsible for the serious human rights violations perpetrated by his
subordinates, namely: Bupati KDH Tk.II Kabupaten Liquisa, Leonito Martins,
Bupati KDH TK.II Covalima Drs. Herman Sedyono and Deputy Commander of
Pejuang Pro Integrasi (PPI) Eurico Gutteres in Kabupaten Dili/Administrative
town of Dili in Dili that was under his rule and effective control, as the
Accused did not exert proper and correct control over his subordinates:
The Accused knew or consciously disregarded information clearly indicating
that his subordinates, namely: Bupati KDH Tk.II Kabupaten Liquisa, Leonito
Martins, Bupati KDH Tk.II Covalima, Drs. Herman Sedyono, and Deputy
Commander of Pejuang Pro Integrasi (PPI) were committing or had just
committed serious human rights violations in the form of Murder perpetrated
as part of a widespread or systematic attack aimed directly at pro
independence civilian residents. In this case the Accused as Governor and as
Head of Government in the Province of East Timor under Law Number 5 year
1974 concerning Principles of Regional Government was tasked to lead
implementation of, and was fully responsible for the course of Regional
Government and due to his position the Accused was responsible for the
maintenance of peace and order in the region and was also obliged to
determine policy to eliminate or prevent disturbances both preventive and
repressive, which task and obligation were not conducted properly according
to Law Number 5 year 1974, the Accused did not act or did not take suitable
and necessary measures such as coordinating with security apparatus to
prevent or halt the actions of his subordinates or to hand the perpetrators
over to the authorities for examination, investigation and arraignment, such
that attacks were perpetrated on civilian residents, namely:
The attack by a pro integration group on pro independence civilian residents
who had sought refuge in the residence of Pastor Rafael Dos Santos in the
Liquisa Church compound that led to casualties of 22 (twenty two) deaths and
21 (twenty one) wounded;
The attack by a pro integration group on pro independence civilian residents
who had sought refuge in the residence of Manuel Viegas Carascalao in Dili,
that led to casualties of 12 (twelve) deaths and 4 (four) wounded;
The attack by a pro integration group on September 4 and 5, 1999, on pro
independence civilian residents who had sought refuge in the Dili Diocese in
Dili that led to casualties of 46 (forty six) deaths;
The attack by a pro integration group on pro independence civilian residents
who had sought refuge in the residence of Bishop Bello in Dili leading to
casualties of 10 (ten) deaths and 1 (one) wounded;
The attack by a pro integration group on pro independence civilian residents
who had sought refuge in the Ave Maria Church in Suai (Kabupaten Covalima)
leading to casualties of 27 (twenty seven) deaths;
The actions of the Accused were conducted in the following manner:
That prior to the referendum on the future of the East Timorese people, the
Accused held a meeting at the office of the Governor of East Timor Province
in Dili, with Bupatis to brief them, in which among others, the Accused said
that to anticipate all possibilities, political and referendum organizations
had to be established under the name Forum Persatuan Demokrasi dan Keadilan
(FPDK) and Barisan Rakyat Timor-Timur in each of the TK.II Kabupatens. These
organizations were established to embody the aspirations of East Timorese
who were pro integration in anticipation of the referendum, and to establish
the organization Pengamanan Swakarsa (PAM SWAKARSA) under Law Number 20 year
1982 concerning National Defense and Security Code of the Republic of
Indonesia;
That based on the Muspida meeting in each Kabupaten and Kotamadya communal
organizations were established as follows:
a) PAM SWAKARSA funded by the APBD (Regional Budget) of each Tier II region;
b) The existence of these communal organizations that grew spontaneously,
was acknowledged de facto by the Accused and the source of their funding was
from the pro integration communities themselves, such that:
In Kabupaten Covalina the following organizations were set up:
- PAM SWAKARSA
- FPDK (Forum Persatuan Demokrasi dan Keadilan
- BRTT (Barisan Rakyat Timor Timur)
- MAHIDI (Mati Hidup Demi Indonesia)
- LAKSAUR
• In Kabupaten Liquisa the following organizations were set up:
- PAM SWAKARSA
- FPDK (Forum Persatuan Demokrasi dan Keadilan
- BRTT (Barisan Rakyat Timor Timur)
- BMP (Besi Merah Putih)
- In Dili Kabupaten and Administrative Town the following organizations were
set up:
- PAM SWAKARSA
- AITARAK
- Pejuang Pro Integrasi
- MILISI
- FPDK , BRTT
- BMP (Besi Merah Putih)
- Oan Kilbur Ba Damai
- Liquisa
- Saka Ermere Darah Merah Putih
- MAHIDI (Mati Hidup Demi Indonesia)
Except for Pam Swakarsa these organizations, after the referendum, merged
with PPI (Pasukan Pejuang Integrasi) and UNTAS (Uni Timor Satria) led by
Eurico Gutterres;
That the organizations cited above were acknowledged de facto by the Accused,
and therefore he possessed authority and oversight as well as control over
these organizations;
That the Accused was aware at the time of the referendum to determine the
options was held that fraud had been perpetrated at the ballots, and the
Accused was also aware that sporadic disturbances, brawls, extortion,
killings, arson, and other destruction were taking place among others in:
1. In Kabupaten Liquisa
- Nearing the referendum in East Timor specifically in Kabupaten Liquisa,
security and public order were heating up, leading to hostilities, quarrels,
and disputes between the Pro independence group and the Pro integration Besi
Merah Putih (BMP) group, most of whose members were later to join Pasukan
Pejuang Integrasi (PPI);
- These disputes, quarrels and hostilities continued to spread and on April
3, 1999, the pro independence group had made threats to kill the pro
integration group Besi Merah Putih (BMP) in Dato village in kecamatan
Liquisa, Kabupaten Liquisa;
- On April 4, 1999, a Pro independence mob led by Jasinto Da Costa Pereira
set fire to houses belonging to the Pro Integration mob Besi Merah Putih
because the Besi Merah Putih mob from Pekelara and Maubara had set fire to
the house of Felisberto Dos Santos and killed his son Elidio who was a
member of the Pro Independence group;
- On April 5 1999 the pro independence group, fearing they would be killed
by the pro integration Besi Merah Putih group, began to seek refuge in the
residence of Pastor Rafael dos Santos at the Liquisa Church compound, Pastor
Henry from Maubara informing that the pro integration mob from the Besi
Merah Putih group were coming to attack Liquisa;
- That acting on the information of Pastor Henry the pro independence group
led by Jasinto Dacosta Pereira and his men proceeded to the Maubara Liquisa
border to settle the planned attack by the pro integration group Besi Merah
Putih, but when in Batu Blete they met the pro integration group Besi Merah
Putih with the Tentara Nasional Indonesia (TNI) and policemen from
Kepolisian Republik Indonesia (POLRI), the pro independence mob were fired
at resulting in 2 dead and 7 wounded, including Jose from Hatukesi and
Sirilio Dos Santos who were shot in the thigh;
- That at 13:00 WITA the pro independence group from various places had
taken refuge in the residence of Pastor Rafael Dos Santos at the Liquisa
Church compound, numbering some 2000 people.; at the same time Tentara
Nasional Indonesia troops and policemen from Kepolisian Republik Indonesia (POLRI)
had surrounded the Liquisa Church compound, and in a short while the Besi
Merah Putih (BMP) mob arrived firing shots in the air resulting in panic and
fear among the pro independence group;
- Next on Tuesday April 6, 1999, at approximately 07:00 WITA some 300 people
from the Besi Merah Putih (BMP) pro integration group led by Manuel Sousa
began to assemble and surround the residence of Pastor Rafael Dos Santos in
the Liquisa Church compound, with some carrying firearms.
- Some carried home-made firearms, some carried machetes, some carried
samurai swords, some carried knives, some carried bludgeons, some carried
sharp implements, some carried bows and arrows, or other hard objects, and
shouted for the pro independence groups sheltering inside to exit the Church
compound;
- At approximately 08:00 am Pastor Rafael Dos Santos was accosted by 2 (two)
Brimob personnel named Damianus Dapa and Fransiskus Salamali who asked that
Jacinto Da Costa Pereira and Gregorio Dos Santos be handed over to the
prointegration group Besi Merah Putih (BMP), but this was refused by Pastor
Rafael Dos Santos for fear they would be killed;
- At approximately 11:30 WITA, 5 (five) members of POLRI led by Police First
Lieutenant Jhon Rea arrived at the residence of Pastor Rafael Dos Santos in
the Liquisa Church compound to ask that Jacinto Da Costa Pereira and his
companions be handed over, upon which Pastor Rafael Dos Santos assented on
the condition that Jacinto Da Costa Pereira and his companions were brought
to East Timor Polda in Dili and the Besi Merah Putih mob withdraw from
Liquisa. At the time, the pro integration group Besi Merah Putih (BMP)
threatened the pro-independence people taking refuge by yelling "leave the
compound, or a second wave will come, and even if you are still in the
Church, at 01:00 WITA we will attack the Church", while flinging stones at
the residence of Pastor Rafael Dos Santos in the Curch compound surrounded
by a wall, thus adding to the extreme fear and terror as TNI troops from
kodim 1638/Liquisa and Brimob/POLRI personnel from Liquisa Polres joined the
pro integration mob from the Besi Merah Putih (BMP) group;
- At the condition submitted by Pastor Rafael Dos Santos, First Lieutenant
Pol. Jhon Rea headed to Kodim 1638/Liquisa base to report as such, and to
report that the pro integration mob from the Besi Merah Putih (BMP) group
would attack the Liquisa Church compound if until 12:00 WITA Jacinto Da
Costa Pereira was not handed over;
- In response to First Lieutenant Pol. Jhon Rea's report, the Deputy
Commander of Korem 164/WD, Col.Inf. Mujiono, held a conference with Asep
Kuswani as 1638/Liquisa District Military Commander, Drs. Adios Salova as
Liquisa Resort Chief of Police (Kapolres), and Yayat Sudradjat as Dansatgas
Tribuana VII, Leoneto Martins as Bupati Kepala Daerah Tingkat II Liquisa,
and then appointed Leoneto Martins to convey the acceptance of the
conditions made by Pastor Rafael Dos Santos, but the appointment was refused
by Leoneto Martins, giving the reason that he feared he would be killed if
he met Pastor Rafael Dos Santos, so that finally Wandanrem 164/WD
reappointed/reassigned Lettu Pol. Jhon Rea to meet Pastor Rafael Dos Santos;
- At approximately 12:15 WITA, at the time Lettu Pol. Jhon Rea headed to the
Liquisa Church compound, shots were heard in the location followed by an
attack on the Liquisa Church compound by the pro integration group Besi
Merah Putih (BMP) led by Manuel Sousa and Jose Afaat (Camat of Maubara),
Tentara Nasional (TNI) troops among others named Jose Matheus, Tome Diogo,
Abilio Alves, Carlos, Maurisio, Jeferino, Zaarias, Manuel Martins, Jaob and
Kepolisian Republik Indonesia (POLRI) personnel among others Alfonso and
Chico from the Liquisa Police Resort and carried out killings, some by
shooting with firearms, home-made firearms, some hacked with machetes and
samurai swords, some shot arrows, some stabbed with knives, and some
bludgeoned with hard objects, at the pro independence group who were taking
refuge in the residence of Pastor Rafael Dos Santos in the Liquisa Church
compound, consequently resulting in casualties among the civilian pro
independence group numbering 22 (twenty two) dead, namely:
1. Jacinto Da Costa Pereira
2. Agustinho
3. Joanico
4. Abrao Dos Santos
5. Augusto Mauzinho
6. Ameko Dos Santos
7. Narsizio
8. Hermino Dos Santos
9. Fernando Dos Santos
10. Laurindo Pereira
11. Mariki Dos Santos
12. Manuel Lisboa
13. Viktor Da Costa
14. Alberto Oliveira
15. Amandio Cesar Dos Santos
16. Cesar Dos Santos
17. Agustinho Dos Santos
18. Laurinda Dos Santos
19. Santiago
20. Jhoni/Mau Soko
21. Grave of unidentified victim of Liquisa case in Maubara cemetery
22. Grave of unidentified victim of Liquisa case in Maubara cemetery
2. In Kabupaten Dili/Dili Adminsitrative Town
- On Saturday April 17, 1999 at approximately 19:00 WITA a meeting or grand
roll-call was held to inaugurate PAM SWAKARSA on the grounds of the office
of the East Timor Governor in Dili, attended by several officials in the
region among others East Timor Governor Abilio Jose Osorio Soares (East
Timor Governor), Domingos M.D. Soares, SH.MS (Bupati of Dili), Mathius MAIA
(Administrative Mayor of Dili), Jose Da Silva Tavares as Commander of
Pasukan Pejuang Integrasi (PPI) and Eurico Gutteres as superior or Deputy
Commander of PPI/as Commander or superior of AITARAK group and Jose Ximenes;
- During the event Eurico Gutteres knew that his men (AITARAK/Pasukan
Pejuang Integrasi troops or group, armed and with hostility toward the
pro-Independence group) had delivered their speech to their men using the
words, among others:
- All CNRT leaders must be wiped out;
- Kill all CNRT leaders;
- Pro independence people must be killed:
- Kill Manuel Viegas Carrascalao;
- The Carrascalao family must be killed;
- Kill Leandro Isaac, David Dias Ximenes, Manuel Viegas;
- Carrascalao, Kill the family of Manuel Viegas Carrascalao;
- After the Grand Roll-Call for the inauguration of PAM SWAKARSA was over,
some members of Pasukan Pejuang Integrasi (PPI) left the ceremony and
travelled in a procession to the house of Aleandro Isaac where among others
they fired shots from the back door, destroyed the contents and fired shots
in the direction of the car parking place at the rear of the house, and then
proceeded to attack the residence of Manuel Viegas Carrascalao which was
located in Jl.Antonio De Carvalho No.13, Dili, East Timor, occupied by 136 (one
hundred thirty six) refugees from the pro independence group from
Maubara-Liquisa, Turiscai, Alas and Ainaro, and as a result of that attack
there were 12 (twelve) fatal casualties, whose names are:
1) Mario Manuel Carrascalao (Maneleito), interred in Dili;
2) Raul Dos Santos Cancela, interred in Maubara;
3) Alfonso Ribeirs, ditto
4) Rafael Da Silva, ditto
5) Alberto Dos Santos, ditto
6) Joao Dos Santos, ditto
7) Antonio Dos Soares, ditto
8) Crisanto Dos Santos, ditto
9) Cesar Dos Santos, ditto
10) Agustini B.X.Lay, ditto
11) Eduardo De Jesus, ditto
12) Januario Pereira, ditto
On Monday September 6, 1999, at approximately 11:00 WITA the pro integration
group arrived at the residence of Bishop Bello in Dili, and after the pro
integration group fired shots at Bishop Bello, they forced the refugees from
the pro independence group who were taking shelter in Bishop Bello's house
to immediately exit the house, after the refugees from the pro independence
group in the Bunda Maria garden at the front of Bishop Bello's house, and
not long after a cry of "attack" was heard and the pro integration group
launched an assault by shooting at the refugees from the pro independence
group, resulting in the death of a civilian from the pro independence group
named Nunu and another unidentified person, and the pro integration group
also destroyed and set fire to Bishop Bello's house;
3. In Kabupaten Covalima (Suai)
After the announcement of referendum results on August 30, 1999, for East
Timor residents to vote to remain integrated with the Indonesian government,
nation and state, or to declare themselves part (of an independent state and
government), that was later won by the anti integration (pro independence)
group, a heated situation then arose and tensions flared between the group
declaring themselves pro independence / anti integration and the pro
integration group;
- That in this heated situation the public from the pro independence group,
monks and nuns, numbering approximately 2000 people took refuge in the
compound of the Ave Maria Catholic Church;
- That on September 6, 1999, an attack was launched using home-made firearms
and sharp weapons by the pro integration group, including among others:
Izedio Manek, Olivio Mendoza Moruk Alias Olivia Mou, Martinus Bere, Motomus
and Vasco Da Cruz who were members of Laksaur under the leadership of Olivia
Maruk, on pro independence civilians including the monks and nuns taking
refuge in the Ave Maria Church compound, that resulted in 27 (twenty seven)
deaths among the civilians taking refuge in the Ave Maria Catholic Church:
a. 17 men comprising:
- 14 ordinary residents
- 3 priests
b. 10 women
For the serious human rights violations perpetrated above, the Accused was
aware of, or consciously disregarded the information that clearly indicated
that his subordinates, namely the Bupati of Liquisa, the Bupati of Covalina,
the Deputy Commander of Pasuka Pejuang Integrasi (Eusico Gutteres) and other
mass organizations including Pam Swakarsa that was under the guidance of the
Government pf East Timor in Dili, were perpetrating or had just perpetrated
serious human rights violations in the form of the murder of pro
independence civilians in the Liquisa Church compound, the Ave Maria Church
compound, or in other places in the territory of the Province of East Timor.
For this incident, the Accused did not take suitable and necessary action
within his jurisdiction to prevent or halt the acts, in which the Accused
did not prevent, or take measures to order security apparatus to prevent the
clash between pro integration and pro independence groups or to hand the
perpetrators over to the authorities for examination, investigation and
arraignment;
This act by the Accused is regulated and subject to criminal penalty under
Article 42 verse (2) and b jis Article 7 letter b, Article 9 letter a,
Article 37 Law No. 26 year 2000 concerning Human Rights Tribunal;
SECOND:
That the Accused Abilio Jose Osoares as Governor of East Timor installed on
the basis of KEPPRES RI Number 260/M/Th.1997 dated September 16, 1997, on
April 3, 4, 5, 6, 1999, on April 17, 1999 and September 1999, situated in
Kabupaten Liquisa, in Kabupaten Covalima (in Suai town), in Kabupaten Dili
and Dili Administrative Town or at least in the territory of East Timor
Province in which the Ad Hoc Human Rights Court at the Central Jakarta
District Court is authorized to examine and rule on the case of the Accused
based on Article 2 Keppres No. 96 year 2001 concerning amendment to Keppres
No. 53 year 2001 concerning Establishment of an Ad Hoc Human Rights Court at
the Central Jakarta District Court. The Accused as Governor of East Timor
and as superior of Bupati of Kabupaten Liquisa, Leonito Martins, Bupati of
Covalima, Drs. Herman Sedyono and Deputy Commander of Pasukan Pro Inetgrasi
(PPI) Eurico Gutteres, in Kabupaten Dili/ Administrative Town of Dili in
Dili was criminally responsible for the serious human rights violations
perpetrated by his subordinates, namely: Bupati of Kabupaten Liquisa Leonito
Martins, Bupati of Covalina Drs. Herman Sedyono, and Deputy Commander of
Pasukan Pejuang Integrasi (PPI) in Kabupaten Dili/ Administrative Town of
Dili in Dili that under his effective rule and control, as the Accused did
not exert control over his subordinates in an appropriate and proper manner;
The Accused knew of or consciously disregarded information that clearly
indicated that his subordinates, namely: Bupati of Kabupaten Liquisa Leonito
Martins, Bupati of Covalina Drs. Herman Sedyono, and Deputy Commander of
Pasukan Pejuang Integrasi (PPI) were perpetrating or had just perpetrated
serious human rights violations in the form of assault on a certain group or
association based on equality of political views, race, nationality, ethnic
origins, culture, religion, sex, or other rules that are universally
recognized as prohibited under international law, that form an act
perpetrated as part of a widespread or systematic attack directed
immediately at pro independence civilians. In this case the Accused as
Governor and as Head of Government in East Timor Province in accordance with
Law Number 5 year 1974 concerning Principles of Regional Government was
responsible for all aspects of the people's life, both in development and
guidance of the people, and law enforcement and public peace and order, the
Accused did not carry out or did not take appropriate and necessary measures
such as coordinating with security apparatus to prevent or halt the actions
of his subordinates or to hand over perpetrators to the authorities to be
examined, investigated and arraigned, such that the civilian population was
attacked, namely in:
The attack by the pro integration group on pro independence civilian
residents who had sought refuge in the residence of Pastor Rafael Dos Santos
in the Liquisa Church compound that resulted in 22 (twenty two) people dead
and 21 (twenty one) injured;
The attack by the pro integration group on pro independence civilian
residents who had sought refuge in the residence of Manuel Viegas
Carrascalao in Dili, that resulted in 12 (twelve) people dead and 4 (four)
people injured;
The attack by the pro integration group on September 4 and 5, 1999, on pro
independence civilian residents who had sought refuge in the residence of
Bishop Bello in Dili resulting in 10 (ten) people dead and 1 (one) injured;
The attack by the pro integration group on pro independence civilian
residents who had sought refuge in the Ave Maria Church in Suai (Kabupaten
Covalima) resulting in 27 (twenty seven) people dead;
The acts by the Accused were carried out in the following manner:
- That prior to the execution of the referendum to determine the future of
the East Timorese, the Accused held a meeting in the office of the Governor
of East Timor Province in Dili with the Bupatis to brief them, among others
the Accused said that to anticipate all possibilities, a political
organization to participate in the referendum should be formed with the name
forum Persatuan Demokrasi dan Keadilan (FPDK) and Barisan Rakyat Timor Timur
in each kabupaten. This organization was formed to carry the aspirations of
the Pro Integration people of East Timor in the face of the referendum, and
to form organization Pengamanan Swakarsa (Pam Swakarsa) based on Law Number
20 year 1982.
- That based on the results of this Muspida meeting each Kabupaten and
Kotamadya established the following communal organizations:
c. PAM SWAKARSA funded from the Regional Budget (APBD) in each 2nd tier
region.
d. Communal organizations emerging spontaneously were acknowledged de facto
by the Accused, with their source of funding from the pro integration
community itself, such that:
- In Kabupaten Covalima the following organizations were set up:
- PAM SWAKARSA;
- FPDK (Forum Persatuan Demokrasi dan Keadilan);
- BRTT (Barisan Rakyat Timor Timur);
- MAHIDI (Mati Hidup Demi Indonesia);
- LAKSAUR;
- In Kabupaten Liquisa the following organizations were set up:
- PAM SWAKARSA;
- FPDK (Forum Persatuan Demokrasi dan Keadilan);
- BRTT (Barisan Rakyat Timor Timur);
- BMP (Besi Merah Putih);
- In Kabupaten and Administrative Town of Dili the following organizations
were set up:
- PAM SWAKARSA;
- AITARAK;
- Pejuang Pro Integrasi;
- MILISI;
- FPDK, BRTT;
- BMP (Besi Merah Putih);
- Oan Kibur Ba Damai;
- Liquisa;
- Saka Ermere Darah Merah Putih;
- MAHIDI (Mati Hidup Demi Indonesia).
These organizations after the referendum merged with PPI (Pasukan Pejuang
Integrasi and UNTAS/Uni Timor Satria) led by Eurico Gutteres;
- That the organizations listed above were reported to the Accused by the
Deputy Commander of Pasukan Pejuang Integrasi (PPI) such that the Accused
was aware of them and the Accused had authority and oversight over these
organizations;
- That the Accused was aware that at the time the referendum to determine an
Option was held fraud was committed at the ballots, and the Accused was also
aware there was sporadic chaos, brawls, extortion, murder, arson,
destruction, among others:
1. In Kabupaten Liquisa
- As the referendum approached in East Timor Province, specifically in
Kabupaten Liquisa, security conditions and public order began to heat up,
creating hostilities, brawls, and disputes between the pro independence
group and the Besi Merah Putih (BMP) mob whose members later largely joined
Pasukan Pejuang Integrasi (PPI);
- The brawls, disputes and hostilities became increasingly widespread, and
on April 3, 1999, the Pro Independence group had threatened to kill the Pro
Integration group Besi Merah Putih (BMP) in the village of Dato kecamatan
Liquisa Kabupaten Liquisa;
- On April 4, 1999, the Pro independence mob led by Jasinto Da Costa Pereira
set fire to the houses of the pro integration group besi Merah Putih because
the Besi Merah Putih mob from Pukelara and Maubara had set fire to the house
of Felisberto Dos Santos and killed his son Elidio who was a member of the
Pro Independence group;
- On April 5, 1999, the pro independence group, fearful of being killed by
the pro integration mob Besi Merah Putih, began to take refuge in the
residence of Pastor Rafael Dos Santos in the Liquisa Church compound. Pastor
Henry from Maubara informed that that the pro integration group Besi Merah
Putih was about to attack Liquisa region;
- That acting on the information of Pastor Henry the pro independence group
led by Jasinto Dacosta Pereira and his men proceeded to the Maubara Liquisa
border to settle the planned attack by the pro integration group Besi Merah
Putih, but when in Batu Blete they met the pro integration group Besi Merah
Putih with the Tentara Nasional Indonesia (TNI) and policemen from
Kepolisian Republik Indonesia (POLRI), the pro independence mob were fired
at resulting in 2 dead and 7 wounded, including Jose from Hatukesi and
Sirilio Dos Santos who were shot in the thigh;
- That at 13:00 WITA the pro independence group from various places had
taken refuge in the residence of Pastor Rafael Dos Santos at the Liquisa
Church compound, numbering some 2000 people.; at the same time Tentara
Nasional Indonesia troops and policemen from Kepolisian Republik Indonesia (POLRI)
had surrounded the Liquisa Church compound, and in a short while the Besi
Merah Putih (BMP) mob arrived firing shots in the air resulting in panic and
fear among the pro independence group;
- Next on Tuesday April 6, 1999, at approximately 07:00 WITA some 300 people
from the Besi Merah Putih (BMP) pro integration group led by Manuel Sousa
began to assemble and surround the residence of Pastor Rafael Dos Santos in
the Liquisa Church compound, with some carrying firearms.
Some carried home-made firearms, some carried machetes, some carried samurai
swords, some carried knives, some carried bludgeons, some carried sharp
implements, some carried bows and arrows, or other hard objects, and shouted
for the pro independence groups sheltering inside to exit the Church
compound;
- At approximately 08:00 am Pastor Rafael Dos Santos was accosted by 2 (two)
Brimob personnel named Damianus Dapa and Fransiskus Salamali who asked that
Jacinto Da Costa Pereira and Gregorio Dos Santos be handed over to the
prointegration group Besi Merah Putih (BMP), but this was refused by Pastor
Rafael Dos Santos for fear they would be killed;
- At approximately 11:30 WITA, 5 (five) members of POLRI led by Police First
Lieutenant Jhon Rea arrived at the residence of Pastor Rafael Dos Santos in
the Liquisa Church compound to ask that Jacinto Da Costa Pereira and his
companions be handed over, upon which Pastor Rafael Dos Santos assented on
the condition that Jacinto Da Costa Pereira and his companions were brought
to East Timor Polda in Dili and the Besi Merah Putih mob withdraw from
Liquisa. At the time, the pro integration group Besi Merah Putih (BMP)
threatened the pro-independence people taking refuge by yelling "leave the
compound, or a second layer will come, and even if you are still in the
Church, at 01:00 WITA we will attack the Church", while flinging stones at
the residence of Pastor Rafael Dos Santos in the Curch compound surrounded
by a wall, thus adding to the extreme fear and terror as TNI troops from
Kodim 1638/Liquisa and Brimob/POLRI personnel from Liquisa Polres joined the
pro integration mob from the Besi Merah Putih (BMP) group;
- At the condition submitted by Pastor Rafael Dos Santos, First Lieutenant
Pol. Jhon Rea headed to Kodim 1638/Liquisa base to report as such, and to
report that the pro integration mob from the Besi Merah Putih (BMP) group
would attack the Liquisa Church compound if until 12:00 WITA Jacinto Da
Costa Pereira was not handed over;
- In response to First Lieutenant Pol. Jhon Rea's report, the Deputy
Commander of Korem 164/WD, Col.Inf. Mujiono, held a conference with Asep
Kuswani as 1638/Liquisa District Military Commander, Drs. Adios Salova as
Liquisa Resort Chief of Police (Kapolres), and Yayat Sudradjat as Dansatgas
Tribuana VII, Leoneto Martins as Bupati Kepala Daerah Tingkat II Liquisa,
and then appointed Leoneto Martins to convey the acceptance of the
conditions made by Pastor Rafael Dos Santos, but the appointment was refused
by Leoneto Martins, giving the reason that he feared he would be killed if
he met Pastor Rafael Dos Santos, so that finally Wandanrem 164/WD
reappointed/reassigned Lettu Pol. Jhon Rea to meet Pastor Rafael Dos Santos;
- At approximately 12:15 WITA, at the time Lettu Pol. Jhon Rea headed to the
Liquisa Church compound, shots were heard in the location followed by an
attack on the Liquisa Church compound by the pro integration group Besi
Merah Putih (BMP) led by Manuel Sousa and Jose Afaat (Camat of Maubara),
Tentara Nasional (TNI) troops among others named Jose Matheus, Tome Diogo,
Abilio Alves, Carlos, Maurisio, Jeferino, Zaarias, Manuel Martins, Jaob and
Kepolisian Republik Indonesia (POLRI) personnel among others Alfonso and
Chico from the Liquisa Police Resort and carried out killings, some by
shooting with firearms, home-made firearms, some hacked with machetes and
samurai swords, some shot arrows, some stabbed with knives, and some
bludgeoned with hard objects, at the pro independence group who were taking
refuge in the residence of Pastor Rafael Dos Santos in the Liquisa Church
compound;
The injured numbered some 21 (twenty one) people, namely:
1. Jose Ramos
2. Fransisco Dos Santos
3. Joao Pereira
4. Abilio Dos Santos
5. Jose Nunes Serrao
6. Licas Soares
7. Mateus Panlero
8. Ricardo Rodrigues Pereira
9. Lakumau
10. Januari
11. Felis
12. Joao kuda
13. Armando
14. Antonio
15. Luis
16. Emilio
17. Lucas Dos Santos
18. Joao Dos Santos
19. Sebastiao
20. Ramirio
21. Matius Alves Correia
2. In Kabupaten Dili/Dili Administrative Town
- On Saturday April 17, 1999 at approximately 19:00 WITA a meeting or grand
roll-call was held to inaugurate PAM SWAKARSA on the grounds of the office
of the East Timor Governor in Dili, attended by several officials in the
region among others East Timor Governor Abilio Jose Osorio Soares (East
Timor Governor), Domingos M.D. Soares, SH.MS (Bupati of Dili), Mathius MAIA
(Administrative Mayor of Dili), Jose Da Silva Tavares as Commander of
Pasukan Pejuang Integrasi (PPI) and Eurico Gutteres as superior or Deputy
Commander of PPI/as Commander or superior of AITARAK group and Jose Ximenes;
- During the event Eurico Gutteres knew that his men (AITARAK/Pasukan
Pejuang Integrasi troops or group, armed and with hostility toward the
pro-Independence group) had delivered their speech to their men using the
words, among others:
- All CNRT leaders must be wiped out;
- Kill all CNRT leaders;
- Pro independence people must be killed:
- Kill Manuel Viegas Carrascalao;
- The Carrascalao family must be killed;
- Kill Leandro Isaac, David Dias Ximenes, Manuel Viegas Carrascalao, Kill
the family of Manuel Viegas Carrascalao;
- After the Grand Roll-Call for the inauguration of PAM SWAKARSA was over,
some members of Pasukan Pejuang Integrasi (PPI) left the ceremony and
paraded/went in a procession to the house of Aleandro Isaac where among
others they fired shots from the back door, destroyed the contents and fired
shots in the direction of the car paring place at the rear of the house, and
then proceeded to attack the residence of Manuel Viegas Carrascalao which
was located in Jl.Antonio De Carvalho No.13, Dili, East Timor, occupied by
136 (one hundred thirty six) refugees from the pro independence group from
Maubara-Liquisa, Turiscai, Alas and Ainaro, and as a result of that attack 4
(four) people sustained injuries:
1. Witness Viktor Dos Santos (APIN), sustaining injuries to his left hand
and middle finger;
2. Witness Alfredo Sanches, sustaining injuries from stabs to the left
shoulder and a left finger;
3. Witness Florindo De Jesus, sustained injuries from hacking to the left
and right hands, his right ear shot and hacked;
4. Miki, sustained injuries from hacking;
On Monday September 6, 1999, at approximately 11:00 WITA the pro integration
group arrived at the residence of Bishop Bello in Dili, and after the pro
integration group fired shots at Bishop Bello, they forced the refugees from
the pro independence group who were taking shelter in Bishop Bello's house
to immediately exit the house, after the refugees from the pro independence
group in the Bunda Maria garden at the front of Bishop Bello's house, and
not long after a cry of "attack" was heard and the pro integration group
launched an assault by shooting at the refugees from the pro independence
group, resulting in the death of a civilian from the pro independence group
named Nunu and another unidentified person, and the pro integration group
also destroyed and set fire to Bishop Bello's house;
3. In Kabupaten Covalima (Suai)
- After the announcement of referendum results on August 30, 1999, for East
Timor residents to vote to remain integrated with the Indonesian government,
nation and state, or to declare themselves part (of an independent state and
government), that was later won by the anti integration (pro independence)
group, a heated situation then arose and tensions flared between the group
declaring themselves pro independence / anti integration and the pro
integration group;
- That in this heated situation the public from the pro independence group,
monks and nuns, numbering approximately 2000 people took refuge in the
compound of the Ave Maria Catholic Church;
- That on September 6, 1999, an attack was launched using home-made firearms
and sharp weapons by the pro integration group, including among others:
Izedio Manek, Olivio Mendoza Moruk Alias Olivia Mou, Martinus Bere, Motomus
and Vasco Da Cruz who were members of Laksaur under the leadership of Olivia
Maruk, on pro independence civilians including the monks and nuns taking
refuge in the Ave Maria Church compound, that resulted in casualties among
the civilians taking refuge in the Ave Maria Catholic Church;
In the incident of serious human rights violations as referred to above, the
Accused was aware of, or consciously disregarded information that clearly
indicated that his subordinates, namely the Bupati of Liquisa, the Bupati of
Covalima, the Deputy Commander of Pasukan Pejuang Integrasi (Eurico Gutteres)
and other communal organizations among others PAM SWAKARSA under the
guidance of East Timor Regional Government in Dili, were perpetrating or had
just perpetrated serious human rights violations in the form of assault on
pro independence civilians inside the Liquisa Church compound, in the Ave
Maria Church compound, or in other places in the territory of East Timor
Province. In the incident the Accused did not act appropriately, or take
necessary measures within his jurisdiction to prevent or halt these acts, in
which the Accused did not prevent, or take measures in the form of ordering
the security apparatus to prevent the clash between Pro Integration and Pro
Independence or to hand the perpetrators over to the authorities for
examination, investigations, and arraignment;
The actions of the Accused do sufficiently constitute the elements of a
criminal act against humanity, which may qualify as a serious human rights
violation, as is regulated and under threat of criminal penalty in Article
42 verse (2) a and b jis Article 7 letter b, Article 9 letter h, Article 40
Law No 26 year 2000 concerning Human Rights Tribunal;
In considering, that the Public Prosecutor has submitted and demonstrated
before the court evidence in the form of documents as specified in the
evidence list: 2 (two) pieces of cloth drapery, and 1 (one) pair of brown
slippers;
In considering, that the Ad Hoc Public Prosecutor and the Accused's Legal
Counsel have submitted witnesses under oath according to their respective
faiths that in essence presented the following:
1. Witness Brigadier General TNI M. Noer Muis.
- That since August 13 1999 the Witness was assigned Commander of KOREM Dili
in East Timor.
- That Directional Commander connotes a task to command, control troops
assigned for the implementation of the referendum.
- That under the New York Agreement, control of security during
implementation of the referendum was entirely in the hands of police, and
TNI were not permitted to reinforce the number of personnel, reinforce arms,
nor redeploy troops during the referendum.
- That the Witness stressed to TNI soldiers that they were to assist in
making the referendum successful, and that all members of the public should
participate in the referendum according to prevailing rules.
- That after September 4 1999, there was a transfer of command of control
from Police to the Pangdam as Commander of Operations.
- That regarding notable incidents occurring throughout the Witness'
assignment from August 13 to September 4 1999, until the announcement of the
referendum, according to the Witness' records there were scores of notable
activities, in the form of clashes among the masses, both Pro Integration
and Pro Independence, in particular during the campaign period.
- That among 20 (twenty) incidents was the incident of August 13 1999 that
broke out in the Ulmera area of Kabupaten Liquisa in which a mob of Pro
Autonomy people assaulted 4 Pro Independence people.
- That in all clashes occurring before command was transferred from Police
to TNI, Police handled the cases, with TNI merely assisting if requested by
Police and that was permitted by UNAMET insofar as prevailing conditions
were met.
- That in the incident at Suai Church:
The witness and security forces took action to overcome the situation among
others as follows:
- that on September 6, 1999, Witness received a report form the Suai KODIM
Commander, that a conflict between a Pro Inegration mass and a Pro
Independence mass had broken out at the Suai Church. That security apparatus
comprising TNI and POLRI assisted by the local PEMDA had exerted maximum
efforts to overcome the conflict but that it continued and caused the death
of 27 victims.
- that security apparatus comprising TNI and POLRI assisted by the local
PEMDA separated the two conflicting sides, and part of the Pro Independence
mass at the Suai Church were removed to the KODIM office, and POLRES office,
and other safe places in the vicinity of Suai.
- that acting as DANREM, Witness ordered an investigation, and then secured
the other masses to prevent further casualties, and took control of all
troops, and report developments to the DANREM.
- That according to the DANDIM's report to Witness prior to the clash at
Suai Church , there was a Muspida meeting at the Office of the Bupati of
Suai.
- That according to the report of the Suai DANDIM, the Pro Independence mass
numbering thousands of people had assembled in the vicinity of Suai Church.
That the September 6, 1999, incident occurred following the announcement of
the referendum results by UNAMET that according to the referendum agreement
should have been made as planned on September 7, 1999, but was moved forward
by UNAMET to September 4, 1999, and following the announcement Pro
Independence groups provoked the Pro Integration group with their victory.
- That at the time the clash involving thousands of people occurred, the
security apparatus comprising TNI and POLRI immediately headed to the scene
of the incident at Suai Church, to separate the two conflicting groups. TNI
and POLRI then removed thousands from both sides, in particular the Pro
Independence group to safer places, namely KODIM HQ, POLRES, and in the
vicinity of the Bupati's office.
- That the mass conflict did not total a small number, but was in the
thousands, whereas the numbers of security apparatus both TNI and POLRI
prioritized the security of over 2000 UNAMET personnel, and they were
withdrawn from the Kabupatens and assembled in Baucau and Dili, therefore
only a very limited number of forces remained in the Kabupatens, and no more
men were available.
- That Witness received a report from the DANDIM of Suai that thousands had
assembled at Suai Church from the Pro Independence group, and at the time
the Pro Integration crossed Suai Church, shots were heard from the direction
of the Church, and consequently the Pro Integration Group reacted by firing
back at the Church.
- That in the incident in Suai on September 6, 1999, coordination in the
scene of the incident was conducted by the DANDIM together with other
security apparatus including the Bupati. Witness did not report the incident
to the Governor because there was no chain of command with the Governor, and
at the time a large-scale evacuation was taking place, and as far as Witness
knew, the Governor's Office in Dili was no longer functioning on September
6, 1999. No one was in charge at the TELKOM office, nobody was at PDAM, the
people at Immigration had fled, Bulog was vacated, all that remained was TNI
and POLRI, and therefore Witness had no means of communicating his report to
the Accused (Governor). Witness did not contact Governor and the situation
was thus in chaos.
- That as the conflict was on a very large scale, Witness along with POLRI
concentrated on containing the conflict and safeguarding over 2000 UNAMET
personnel, securing vital installations of both TNI and POLRI, and the
public's needs, therefore Witness did not observe and ask the Governor's
whereabouts.
- That after the result of the referendum was announced widespread mass
conflicts erupted all throughout East Timor, and communications equipment
set on fire. Witness then reported these incidents to the Operations
Commander as Witness' superior, and on September 6 the Operations Commander
issued instructions to immediately safeguard the people to prevent further
casualties, and then to continue the investigations by police, and to
mobilize the troops at Suai. Witness did not report the incident in Suai to
the Accused as Governor, as the chain of command did not specify reporting
to the Governor.
- That Witness received a report from the DANDIM of Kabupaten Liquisa
concerning the presence of PAM SWAKARSA in Suai, PAM SWAKARSA being a
community group that appears when the situation in an area becomes non
conducive.
- That regarding the conflict in the residence of Bishop Belo, a report
dated September 6, 1999, stated that a conflict had erupted at the residence
of Bishop Belo where the pro Independence group was assembled, and that
during the incident Bishop Belo was evacuated to Mapolda.
- That Witness received reports that Bishop Belo had acted unfairly, and
that in the residence of Bishop Belo there were ballot boxes for the
referendum, therefore this had ignited the conflict, and Witness received a
report that at Bishop Belo's residence there was one casualty. That the Pro
Integration group were very aggrieved with Bishop Belo because he had mostly
sided with the Pro Independence group.
- That coordination between TNI and POLRI involved the measures that would
be taken during the referendum, whereas Witness had no knowledge of the
coordination between POLRI and PEMDA, that only POLRI and PEMDA themselves
knew of this coordination.
- That Witness received reports and himself witnessed that the Falantil
group was armed, while some in the Pro Integration group carried home-made
weapons.
- That previously the security apparatus together with the two conflicting
groups had agreed to lay down arms, regrettably only the Pro Integration
group were willing to disarm themselves, while the Pro Independence groups
in particular Falantil refused to lay down their arms.
- That PAM SWAKARSA was a community group that dressed in civilian clothes
as well as military-style shirts, but had no formal uniform, and Witness
observed that the majority carried home-made weapons or weapons made from
pipes, and these weapons were collected by security apparatus together with
UNAMET.
- That in the disarmament process, security forces had carried various
measures, namely together with other components from UNAMET, CIVILIAN POLICE,
Military Observers from foreign countries and KPS elements attempted to
disarm the two sides, but only the Pro Integration group were willing to put
their weapons in storage whereas the Pro Independence group in their Base
continued to use their weapons.
- That a further endeavor was to hold a meeting on August 27 or 28, 1999, in
which an agreement was reached for disarmament, but until the end of the
meeting, the Pro Independence group refused to lay down arm.
- That responsibility for security during the referendum was held by police,
however this did not mean that KOREM should stand by, and KOREM would also
be organized by UNAMET. At the time UNAMET had decided that only Police
would be responsible to execute the security command for East Timor. TNI was
to be decreased and to exit East Timor. Remaining TNI were to stay in their
respective posts.
- That as Dan Rem, to Witness' knowledge conflict meant a fight, and a
contest between 2 (two) opposing forces, but on a large scale is called a
conflict , and on an extraordinary scale is called Chaos or a major conflict.
Whereas in a war armed forces would be more dominant, an exchange of fire
would occur, on a wider scale, and conducted by military. In a conflict a
brawl may occur, or the use of sharp weapons or home-made weapons.
- That Witness heard from several Bupatis that the Governor/Accused had
provided instructions to the Bupatis regarding the execution of the
referendum.
- That there was no report from the DANDIM of Liquisa of the Bupati of
Liquisa killing or ordering the killing of, Pro Independence groups/
- That Witness had heard of MILISI when he was in Kupang, that it was a term
produced by the foreign media but to Witness' knowledge and from the reports
of subordinate Unit Commanders before Witness was posted in East Timor there
was nothing named MILISI.
- That the fraud by UNAMET was apparent from the beginning, as at the
registration phase, which was not impartial, for instance UNAMET accepted
native people as its local staff, but only those who preferred the second
option, and the ballots were also placed near the places where Pro
Independence groups gathered, similarly during the campaign period UNAMET
clearly supported the second option.
- That during the implementation of the referendum on August 30, 1999, there
were numerous complaints against Pro Independence supporters and against
UNAMET personnel, reaching a climax when complaints by the Pro Integration
group were not followed up by UNAMET.
- That the announcement of the referendum results that was originally
scheduled for September 7, 1999, was moved forward to September 4, 1999, and
complaints by the Pro Integration group was not followed up by UNAMET, and
the accumulation of all of these acts by UNAMET was the primary cause of the
disturbances in East Timor.
- That beginning September 5, 1999, at 19:30 hours WIB local time,
Directional Command was transferred from POLRI to TNI because the situation
had developed in a very destructive direction at the time, and after a major
disturbance, PEMDA Dili in particular was not functioning normally.
- That as the situation had turned into Chaos everywhere, especially in Dili
where thousands, even hundreds of thousands of refugees were concentrated.
Government was no longer functioning as it should, and in connection to
September 5, 1999, after the KODAL transfer, East Timor residents who wished
to leave East Timor were allowed to depart East Timor.
- That according to the Dandim's report several priests had died, and it was
also reported that there were casualties in several locations, according to
Witness since the beginning of the referendum up to the time Martial law was
imposed the number of casualties did not reach 100 (one hundred).
- That Witness did not know the precise structural and non structural
relationship between PAM SWAKARSA and PEMDA, as it was outside the
jurisdiction of Witness as Danrem.
- That at the time of the incident in Maliana there were conflicts during
the campaigns, but Witness did not see the casualties, Witness received
reports that there were casualties at a house set on fire, and that some had
been injured by rocks, but when Witness arrived at the scene of the incident
the casualties were no longer there. During the campaign in Maliana several
residents' houses were set on fire.
- That martial law was declared in East Timor by the President of the
Republic of Indonesia on September 6, 1999, at 24:00 hours WIB.
- That on the day after the referendum result was announced on September 5,
1999, there were disturbances, and subsequently the TNI Commander and his
staff along with several relevant officials arrived directly in East Timor
to bring together the leaders of the Pro Integration and Pro Independence
groups to urge them to accept the referendum result that was announced the
day before and to socialize this result to the followers of the two sides,
in order to instill into them that the referendum outcome was the choice of
the people of East Timor for the future of East Timor.
- That the visit of the TNI Commander on September 11, 1999, was to
accompany the UN Security Council Team, because Bishop Basilio in Baucau had
been injured in a shooting, but it was later clarified by UN Security
Council that this was untrue, similarly with other untrue reports by the
foreign media, and after the UN Security Council became aware that these
facts were untrue, the UN Security Council accepted an explanation of the
developing situation after Martial Law was put into effect on September 7,
1999, as presented by the Commander of the then Military State of Emergency.
- That the President of RI had imposed Martial law, because without Martial
Law, no law enforcement could control the situation. Therefore the transfer
of control from Police to TNI and the imposition of a Military State of
Emergency were the most appropriate measures to forestall more severe
conflict in East Timor. Without the Kodal Procedure East Timor would have
been devastated, a major war would have broken out, a civil war that would
have led to numerous casualties.
- That prior to the referendum a number of meetings were held by POLDA,
Witness attended the meetings but did not recall the number. To his mind
Witness recalled that before the referendum sometime in August 1999, a
meeting was held in Dili between POLDA and Muspida elements and attended by
the Pangdam.
- That prior to September 4, 1999, the flow of refugees had begun, reaching
a peak at the announcement of the referendum results on September 4, 1999,
at 9:15, there were massive evacuations in all regions. Refugees leaving
East Timor set fire to their own belongings before departing, and Witness
observed that before September 4, 1999, burnings had taken place.
- That Witness observed the scale of disturbances to be massive, with
security forces outnumbered by the two disputing masses, and on September 5,
1999, at the time the Kodal was transferred from POLICE to TNI, TNI's tasks
comprised 4 issues:
1. Safeguarding all UNAMET personnel numbering over 2000 people.
2. Immediately curb widespread conflict.
3. Secure hundreds of vital projects throughout East Timor.
4. If necessary to fire at anyone threatening the personal safety of UNAMET
personnel.
- That before the arrival of INTERFET many vital projects were able to be
rescued and were in good condition, but after INTERFET arrived, Pro
Independence groups descended from the mountains and set fire to the vital
projects.
1. That Muspida Level I was practically not functioning after UNAMET arrived
and opened an official office in Dili, and Government activities were by
then not running normally.
2. That when the UNAMET Office was inaugurated in Dili, in Baligi the
Accused was invited to attend as Governor, and on his way back the Accused
was attacked by a Pro Independence group, resulting in destruction to the
car of the Accused, and causing the Accused and his driver to flee, because
none of the UNAMET officers came to his rescue. Since that time the
authority of regional government in particular civilian authority, had
disappeared.
2. Witness Drs. Herman Sedyono
- That Witness was Bupati of Covalima from October 1994 to November 1999
when East Timor was dismantled. Witness was appointed Bupati at the people's
request through DPRD, and was nominated by DPRD.
- That notable incidents in Kabupaten Covalima occurred after the two
options were launched, the anti integration community which had been
fighting covertly appeared to gain encouragement, so that the situation in
the area began to show sign of heating up. The Pro Anti Integration side, or
the Pro Independence group began to conduct their activities openly,
directed at Propaganda and terror that was not infrequently accompanied by
violence and coercion.
- That the acts of terror were not infrequently accompanied by violence and
coercion, is demonstrated in several incidents, among others:
1. The abduction of Pulavan residents.
2. The abduction of civil servants from Kodim.
3. Threats made to transmigrants from Bali and Java to leave immediately.
4. Extortion of money called "Apelo" using threats of death.
5. Residents' houses set on fire.
- That at a meeting between the Governor/Accused and the Bupatis in May
1999, the Governor/Accused stressed to the Bupatis that with the escalation
of violence, PAM SWAKARSA had to be reactivated. At the time the Governor/Accused
directed them to provide compensation funds to support welfare according to
the respective capacity of the local Pemda. For Pemda level II Covalima the
compensation provided was Rp.150,000 per person. This money was provided as
compensation as ordinarily they worked in the fields or in rice paddies, and
according to the Governor/Accused, was paid out from April to September
1999. The existence of PAM SWAKARSA was under the instruction of the
Governor to Witness.
- That communal groups establishing themselves included the Pro Independence
group, the anti Integration student group. The BRTT group, and others.
Formal groups such as BRTT notified the Bupati but other groups did not do
so.
- To the Witness' knowledge in carrying out his duties the Witness reported
routinely to the Governor/Accused as his superior in the chain of command as
regional head.
- That Witness knew of the incident in Suai Church on Seeptember 6, 1999, at
the time Witness had just come from Atambua on September 6, 1999 at 11 in
the morning bringing in 9 (nine) trucks to transport refugees evacuated to
West Timor. During coordinations with the Dandim and the Kapolres, Witness
heard shots, Witness then immediately provided coordination and headed to
the incident location to stop what was happening, but as soon as he reached
the enclosure at Suai Church, Witness was carried away to safety by Police.
- That Witness did not see the casualties at the Ave Maria Catholic Church
in Suai, but Witness heard there were 27 casualties, comprising 17 men, 10
women and a small child, and there was also a priest.
- That when Witness heard there were casualties, Witness asked the Kapolres
to conduct an investigation and identify the perpetrators.
- That the incident in the Church lasted for some 2 (two) hours from13:30
afternoon. Witness attempted to go in but was unable due to the situation.
Many residents came out of the Church and embraced him while asking for help
to protect their families, Witness estimated the number at approximately
1000 or 800 people.
- That Witness herded the people coming out of the Church on foot, Witness
prevented assault on these people by hostile persons at the time, in order
to avoid more casualties, Witness asked the Dandim and Kapolres to safeguard
them and then bring them to the KODIM
- That Witness asked that coffins be made for the dead victims and that they
should be interred properly, and that Witness asked an elder to say a prayer.
- That those taking refuge in the Suai Church compound were generally from
the Pro Independence group, and that those outside the Church were from the
Pro Independence group and the Pro Integration group, at the time exchange
of gunfire was already taking place, most likely from these two groups.
- That in order to overcome the situation, Witness asked for help from both
Polres and Kodim, and in several hours security was restored.
- That at the time the referendum result was announced on September 4, 1999,
the Pro Independence group shouted in joy and celebrated inside the Church.
Witness approached the Church and met with the Pastor, Witness then told the
pastor that this attitude would elicit reaction from others, and that those
inside should keep their peace and refrain from activities.
- That many refuges came crying, begging for rice and transportation so that
they could be in a safe place, and they were brought to Belu, in particular
transmigrants and their children.
- That Witness coordinated with the Bupati of Belu to find places to hold
the refugees. Witness provided some 500 tons of rice to the refugees and set
up health posts.
- That upon each activity or every day Witness reported to the Governor/
Accused, in particular when a notable incident in the area occurred Witness
would quickly report. The reports would be in the form of letters if
transportation was expeditious, or through facsimile.
- That Witness was invited by the Governor / Accused, in the first briefing
the Governor / Accused briefed them on an option of special autonomy for
East Timor, the second briefing set out the launching of two options, the
first option being autonomy as offered by central government to East Timor
Province, and the second option being secession or independence.
- That Witness confirmed he had never seen the evidence submitted by the ad
Hoc Public Prosecutor.
- That upon the account of Witness the Accused confirmed that Witness'
account concurred with events in the field and the Accused did not object.
However the Accused wished to rectify the following:
That Bupatis were appointed by the Minister for the Interior and installed
by the Governor on behalf of the Minister for the Interior.
3. Witness Suprapto Tarman
- That Witness had held the office of Bupati of Aileu, appointed since
November 17, 1994, Witness was elected by DPRD Tingkat II Kabipaten Alieu
until dismissed by the President in 2000.
- That to Witness' recollection, there never was a roll-call for the
formation of PAM SWAKARSA, but there was a loyalty roll-call, precisely on
April 17, 1999. At the time Witness did not attend as Witness and Witness'
constituents arriving in a truck were halted by an Anti Integration group in
the Dare area. All members of the public that were with Witness were stopped
in the Darea area of Kecamatan Lolara, and subsequently in order to prevent
bloodshed Witness and his constituents returned to Aileu.
- That the invitation came from Chairman of FPDK, Dominggus, but the
official invitation never reached the Witness but stayed with the Sekwilda,
and Sekwilda reported the matter to Witness. Witness did not know who acted
as Inspector of ceremonies and Commander of ceremonies as Witness was not
present at the roll-call.
- That to Witness' recollection no incident occurred in Kabupaten Alieu
because prior to the referendum Alieu was known as the safest, most orderly
and most peaceful Kabupaten, and nothing untoward occurred in April 1999,
but issues of conflict among the two sides were indicated or in April the
indications were there.
- That the establishment of PAM SWAKARSA germinated in history, that Witness
happened to be there since the beginning of integration, when East Timor was
declared part of the Indonesian Republic, and the anti integration group
Falintil fled to the jungle, from which they harassed the people, stealing
the people's crops, terrorizing the people, issuing propaganda to the people,
and therefore a spontaneous reaction sprang from the people and in fact this
was effective in maintaining security in the area, and that was the
beginning of PAM SWAKARSA.
- That initially the funding of PAM SWAKARSA did not exist, but nearing the
implementation of the referendum, conflict and the political situation began
to escalate among the two opposing sides, with propaganda from each side and
more prominently from the independence group.
- That in light of this fact Witness was invited to a meeting by the
Governor/Accused who called for PAM SWAKARSA to be reactivated, that in
light of their sacrifices for the region, some funds were relayed by
government as a token of its gratitude, for their willingness to make
sacrifices for the region as they could neither farm nor seek employment for
the sake of the security of their homeland. The funds were sourced from APBD
with the approval of DPRD.
- That Witness provided assistance totaling Rp.100,000 per head as Kabupaten
Alieu was the smallest of 13 Kabupaten, with a total population of 38,500
souls.
- That PAM SWAKARSA in Alieu was formed at each village and Kabupaten Alieu
had 34 villages, and according to reports their total strength was from 200
to 300 people.
- That Witness knew well the personality of Governor Abilio Soares/ the
Accused, Accused was consistent with the aspirations of his party at the
time, that is, consistent with integration with Indonesia, and to this day
the Accused has not changed. In terms of personality the Accused had the
ability to socialize with anyone, including with the little people. The
Accused had never committed a criminal act, nor an act of violence , much
less killed. According to Witness the Accused was worthy to be appointed
Governor as the Accused lacked nothing in his devotion to his duty.
- That before integration Kabupaten Alieu was a Fretilin base, 99% were
Fretilin party members, and even today there still stands a multi-purpose
building where Fretelin political opponents were held.
- That upon the announcement of the referendum's results, thousands of
people fled to the Bupati's house where the grounds are wide, they were
crying, Witness was moved to see them, Witness took the initiative to
transport the refugees several times in small numbers until September 19,
and all costs were paid by government.
- That when the situation deteriorated on September 19, 1999, Witness was
only able to transport 5,000 people, and another 5,000 were left behind, and
all were crying.
- That the efforts of the security apparatus and Pemda in this traumatic and
panicked situation were:
Security apparatus, specifically Police and Kodim provided considerable
assistance to PEMDA in finding trucks to transport the refugees, to refugees
Witness provided 400 (four hundred) tons of rice, 3000 packets of instant
noodles, and there was 17 tons of food for the refugees Witness left behind.
- That following the Governor/ Accused's instruction PEMDA had to be neutral
to avoid violence, bloodshed and to coordinate with muspida and when the
results of the referendum were disseminated the people came to Witness and
asked "Pak Bupati, we are already free, why do we want to be free again".
- That Witness held a Muspida safari by making a tour of 34 Villages to
explain what the referendum was and how to handle the referendum.
- That from the beginning Witness had objected to the presence of UNAMET,
because from the onset it was not neutral, beginning with recruitment of
UNAMET staff, from drivers, typists and others, none were pro integration,
with the excuse that the pro independence people could speak English,
Witness wrote a letter to protest UNAMET's actions but this was not heeded
by UNAMET.
- That on the D day Witness in his capacity as Bupati was not allowed to
approach the ballots, Witness was ordered by UNAMET to distance himself from
the ballots. Then a time was set for voting at 9:00 AM but the pro
independence group had submitted their votes from 6:00 to 7:00 AM.
- That Witness was frequently asked by UNAMET, "Where is MILISI", What's
MILISI, Witness said "in here no MILISI, if you want to ask about army
please". Then Witness said here there was only PAM SWAKARSA, and MILIIS was
not identical to PAM SWAKARSA.
- That one week after the UNAMET office was opened in DILI, they opened an
office in Kabipaten Aileu, by renting a house from Aileu DPRD Head Ricardo
Dos Reis.
- That to Witness' recollection after the Tripartite agreement was signed
there were 4 (four) meetings / gatherings with the Accused as Governor, and
the last time Witness met the Governor / Accused was one day before voting
day.
- That when houses began to be set on fire, before descending on Dili the
owners of the houses set their own houses on fire, in Aileu numbering 50 (fifty)
houses, and 30% of the Villages were set on fire, and 70% were not set on
fire.
- That witness was not certain who had lit the fires, but they could have
been the owners of the houses, or they could have been the opposing group,
or a third party with a separate interest.
- That Witness together with the Kapolres left Aileu on September 19, 1999,
while the DANDIM had been previously sent by the DANREM to Dili on September
13, 1999, Witness with 10 truckloads of refugees enterd the region of Sonora,
and Witness smelled dead bodies.
- That Witness wanted to go down and see the bodies to see whether they were
male or female or perhaps he could recognize the bodies, but was constantly
beset by gunshots from the direction of Remeksin, and Witness did not go to
see the bodies.
- That the appearance of the BRTT and FPDK groups was the result of the
formation of CNRT, Falintil, Emperu by Pro Independence groups, and they
were political umbrellas, in order to counterbalance them BRTT and FPDK were
formed which were the intellectual groups of the Pro Integration group.
- That international bodies that had entered Witness' area included
referendum Observers and Monitors from Japan, New Zealand, NGOs from
Indonesia. Students also joined in monitoring.
- That when Witness left Aileu, Witness felt confident that witness had not
failed, but that the nation's politics had failed.
- That according to Witness the issue of the referendum was one of national
sovereignty, of the integrity of the Indonesian Republic that was integrated
fro 27 years, Witness felt it was more weighty than an ordinary Pemilu and
that what Witness was facing was an International Conspiracy.
- That upon the Witness's testimony the Accused addressed several questions
to Witness and after Witness replied to the questions, the Accused testified
that Witness' account concurred with what had happened on the ground and the
Accused did not object.
4. Witness Brigadier General Tono Suratman
- That Witness knew the Accused at the time as Governor of East Timor,
whereas Witness was DANREM 164 Wira Dharma for the 13 Kabupaten in East
Timor. Witness was the highest ranking military leader in East Timor, or the
Territorial Command Executor, whereas the Pangdam was based in Bali.
- That Witness was assigned in East Timor as KOREM Commander from June 10,
1998, to August 13, 1999. Throughout Witness' assignment in East Timor there
were 2 (two) important incidents, namely the clashes between Pro Integration
masses and Anti Integration masses in 2 (two) Kabupaten, in Kabupaten
Liquisa on April 6, 1999, and in Dili on April 7, 1999.
- That from the report of Liquisa Kodim Commander, in the incident in
Liquisa on April 6, 1999, in Liquisa Parish, a clash occurred between Pro
Integration people and Anti Integration people, with casualties numbering 5
(five) dead and over 25 (twenty five) wounded.
- That the incident occurred during the afternoon at 14:00 WITA, according
to the reports of Dandim and Police the weapons used were sharp weapons,
spears, machetes and home-made guns.
- That the weapons in East Timor from the former Portuguese occupation
numbered some 27,000 guns, and some 3,500 TNI soldiers fell in East Timor,
fell as a result of military attacks and ambushes;
- That there was indeed a grand roll-call in Dili on April 17, 1999,
attended by people from 13 Kabupaten, the number of participants totaling
some thousands of people and held on the grounds in front of the Governor's
Office.
- That Witness did not receive an invitation, Witness heard a report about
the grand roll-call from one of Witness' men. At the time Witness did not
attend the grand roll-call because at the same time, Witness was receiving
the ambassador from the European Union, a Delegation from the Department of
the Interior, and the Inspector General from TNI Headquarters.
- That to Witness' knowledge not one TNI personnel attended the grand
roll-call before the Office of the Governor in Dili.
- That what occurred in the Carascalao residence was a clash between Pro
Integration people and Anti Integration people when a parade was taking
place in Dili. Casualties numbered 12 (twelve) dead and 5 (five) to 6 (six)
wounded.
- That at the time Police had conducted examinations and investigation and a
report was filed.
- That in East Timor there were 13 Kabupaten comprising 64 Kecamatan
comprising 662 Villages.
- That what Witness conducted as Danrem along with Kapolda was to approach
the two contending sides, and implementing a peace move named Peace I, in
which Witness emboldened himself, along with Muspida and the Governor /
Accused to go to Biship Belo to ask Bishop Belo as facilitator to assemble
the two warring groups and urge them to agree to end hostilities and
intimidation, and this was carried out in Dare East Timor.
- That the two groups each held to their respective existence, in particular
the Pro Integration people who had long joined and become a part of the
Indonesian nation and continued to defend the red-and-white, whereas the
Anti Integration group desired to secede from Indonesia.
- That indeed there were violations perpetrated by UNAMET, namely when
accepting UNAMET local staff, of which some 95% were Anti Integration people.
This was evident when the Governor/ Accused was present at the UNAMET Office
to witness the installment and was thrown (objects) and his life even
threatened.
- That from intelligence analyses and from what Witness himself observed,
and from results of monitoring coordinated by Witness with Muspida nearly
all the East Timor people preferred autonomy so according to Witness a large
part of the population still loved the Indonesian nation,
- That as Danrem Witness had taken maximum measures, and the Governor /
Accused had also done his maximum, but what Witness saw was the central
government's lack of concern for UNAMET's fraudulent acts.
- That as executors in the field Witness had submitted his report to the
Pangdam on these fraudulent acts, and the Pangdam had acknowledged them but
central government took not a single measure, and case by case they
accumulated so as to become a snowball.
- That an example of the helplessness felt was during the situation nearing
the referendum, in which the number of troops to guard 662 Villages, 64
Kecamatan had been decreased from 10 battalions to 5 (five) battalions. What
the power of TNI was from east to west in the face of incidents occurring in
each Village as a result of the options could thus be surmised.
- That the reduction in the number of fighting troops in East Timor that
should have been there as guard or security forces for the two sides was
clearly evident, nevertheless the security was for UNAMET and not one UNAMET
personnel was wounded or killed.
- That to Witness' knowledge, PAM SWAKARSA was a group of people formed from
the people itself for security purposes owing to intimidations from the
opponents.
- That PAM SWAKARSA existed before the referendum, since 1976, formed by the
Indonesian people and prevalent in all regions in Indonesia and because of
the mounting situation in East Timor, at the appeal of PEMDA those who were
far from security forces formed PAM SWAKARSA in the interests of their own
villages against threats and intimidation.
- That the role of the Governor / Accused in PAM SWAKARSA was not as
Counselor, but as Head of Region the Governor / Accused urged for it as PAM
SWAKARSA is regulated under Law No.20 year 1982.
- That the relationship between Witness and the Accused at the time of the
incident was one of coordination, direct relationship being to the Pangdam
and the Dandim. In addition to the Governor / Accused, coordination was also
held with Kapolda.
- That Witness' action after receiving reports from the Dandim was to order
the Dandim to prevent clashes, to assist in backing up Police, report each
development and Witness reported back to the Pangdam on the incident in
Liquisa.
- That after receiving reports from the Dandim on the incident, Witness then
together with Kapolda and Bishop Belo visited the site of the incident.
- That after arriving at the site of the incident Witness ordered the Dandim
to assist Police in helping the refugees in the Bupati's residence, and then
to provide all the aid possible, Witness also dispatched a medical team
there to provide medical care for both Pro and Anti Integration people.
- That Witness conducted coordination with the Governor / Accused at the
time, and the response of the Governor / Accused at the time was to attempt
several measures namely to summon and invite representatives from PEMDA and
as far as possible to surrender perpetrators to Police.
- That during coordination with the Governor / Accused he constantly asked
and appealed to Witness to take preventive measures and provide aid to the
warring sides.
- That in order to overcome the situation on April 21, 1999, the TNI
Commander held a peace conference in the residence of Bishop Belo.
- That Witness continuously dispatched orders to all KODIM to realy to the
lowest soldier the instructions to be carried out, and Witness also made
working visits to the 13 KODIM, and stressed the need to successfully
expedite the referendum and for the two opposing sides to conduct a
Reconciliation and jointly expedite the referendum successfully.
- That following the appearance of the second option, added pressure was
exerted by the Anti Integration side, and incidents of intimidation and
assaults occurred directed to the Pro Integration people, and there was the
issuance of a kind of identity card (KTP) called Apelo.
- That nearing the incidents of April 1999, information from the
intelligence apparatus was collected each day, each week and each month, on
the current events in each area of Kabupaten East Timor.
- That under Article 3 of the Tripartite Agreement it is stipulated that the
Indonesian government is responsible to maintain peace and security in East
Timor, in order that the referendum be implemented fairly and peacefully in
an atmosphere free from intimidation, violence and intervention by any party.
- That upon the Witness' testimony the Accused confirmed that Witness'
testimony concurred with the events in East Timor and to his testimony the
Accused did not object, however the Accused wished to add several points:
- That in East Timor in the case of important events the Muspida Meeting
included the Head of the High Court and the Head of the Church thus making
it a Muspida Plus.
- That regarding the attacks and clashes that took place it was correct that
reports to the Danrem were also received by the Accused, only through the
Bupati, and according to Bupati's report a group had visited the Church and
asked for the help of Pastors in handing over the persons who had set fire
to or destroyed houses, as they wished to avoid clashes, thus initially they
were there not to carry out an attack.
5. Witness Drs. Brigadier General G.M. Timbul Silaen
- That from the end of July 1998 to the end of September 1999 Witness was
assigned as Kapolda of East Timor.
- That Witness' relationship as Kapolda to the Accused as Governor, Regional
Head of East Timur was coordinative within the muspida forum, and in
incidental cases the relationship with the Governor / Accused was based on
the Muspida Forum.
- That the task of security was based in the Tri Partite Agreement, first in
the broad outlines of authority the Indonesian government was responsible
for security during the referendum process. TNI and POLRI were to remain
neutral, secondly a KPS or Disarmament Commission was to be formed in
conjunction with UN to carry out disarmament.
- That Police were assisted by Civilian Police from the UN who were
responsible for maintenance of order.
- That Police were responsible for the implementation process of the
referendum. According to Witness responsibility for the election process
encompassed registration, campaigning, and ballot casting as well as
safeguarding the ballot boxes. All POLRI tasks were assisted by Civilian
Police, thus in the Tri Partite Agreement there were no words stating that
only police were responsible, as then, according to Witness, that would not
have been accomplished. In the referendum process, responsible authorities
included the government of the Republic of Indonesia and the TNI Commander.
- That in the event of disturbances, it was standard procedure for Polres to
report to the Kapolda, and then Kapolda would make an assessment or at the
request of subordinates, to dispatch additional troops for back-up. Witness
could provide reinforcement without a request from Kapolres, Witness himself
would assess the need depending on the Gradation of the incident in each
Polres.
- That the incident in Liquisa on April 3, 1999 was in connection with a mob
assault, as was the incident of April 4, 1999 in Liquisa.
- That at the time of the incident in the Carascalao Residence Witness was
on an official visit to Jakarta, but Witness received a report after the
incident, and Witness visited the crime scene.
- That at around 15:00 WITA, from the airport Witness headed straight to the
crime scene, and at the crime scene there were Police, Witness saw traces of
destruction and traces of broken glass, then Witness summoned the Kapolres
and asked for details of the incident and Witness ordered that the
perpetrators be arrested and examined.
- That on April 6, 1999, Witness received a report that a clash had broken
out in the Dili Diocese, at the time Witness was at the Command, Witness
ordered his subordinates to conduct an investigation and actions at the
crime scene. At the time there was no one roaming about in the streets, all
had fled to Dili Town.
- That upon arriving from Jakarta Witness headed straight to Liquisa
together with Bishop Belo and the Danrem, to view the crime scene. After
arriving at the crime scene, it evolved that the clash did not occur in the
Church, but adjacent to the Church at a distance of about 200 M from the
Church, and still in the same compound as the Catholic Church.
- That when Witness arrived at the crime scene, no casualties were apparent
only a police line, traces of blood, broken glass. Witness then together
with Bishop Belo walked around the perimeter of the Church. Inside the
Church was undamaged or there were no traces of damage, the damage was to
the Pastor's residence or the Bishop's residence.
- That from the Kapolres' report at the crime scene, 5 (five) people had
died and the number of wounded was uncertain.
- That at the crime scene Witness received reports that a clash had broken
out between 2 (two) opposing groups using home-made weapons and sharp
weapons, that resulted in casualties.
- That regarding the incident at the residence of Manuel Carascalao Witness
did not meet with the Accused, but there was a meeting with the Accused and
Muspida to discuss burial.
- That Witness did not know of the issue of PAM SWAKARSA, Witness only read
about PAM SWAKARSA in the newspapers, that there was KAMRA which numbered
999 members. Recruitment of KAMRA was carried out by KOREM, from
registration to training, and inauguration, after which they were handed
over to Witness.
- That regarding the inauguration of PAM SWAKARSA on April 17, 1999, Witness
received no report, but on his return from Jakarta on April 17, 1999,
Witness visited the crime scene, and when Witness asked the Kapolres what
was happening, the Kapolres replied that Aitarak was being formed by a group
of youths, and Besi Merah Putih was also there.
- That normally the permit to hold a Grand Roll-Call would be issued by
POLRI, and Witness did not know of the permit for that event as he was in
Jakarta, Kapolres or Kadit Intel knew of this, and Witness was only
concerned about capturing the perpetrators.
- That the Head of MUSPIDA was the Governor / Accused, it was the Governor
who coordinated all Departments, but security and security splinters were
the purview of Witness and Police but Witness and Police could not possibly
work on their own.
- That on September 4, 1999, there was a telegram from Pangkoops NUSRA that
said KODAL had been taken over by Pangkoops, and following that Witness had
another assignment, which was to carry out the Hanoin Lorosae II operation.
- That many offenders had been captured and arraigned, especially before the
referendum, many were sentenced, but nearing the referendum, in connection
with justice system, the Prosecutors and Judges had fled East Timor.
- That most of the offenders arrested by Witness were from the Pro Autonomy
group, as they were easier to capture, and they remained in their own
communities, but the Fretilin group was harder to capture because it always
operated a hit and run method.
- That to implement the Tripartite Agreement, the President appointed Faisal
Tandjung as executor in charge of security during the referendum, in
coordination with 5 (five) Departments. Later a P3TT Task Force was formed,
headed by Agus Tarmizi from the Department of Foreign Affairs. Under the Tri
Partite Agreement, responsibility was not in the hands of Police but in KPS
and the UN was also responsible, because KPS and UN were in charge of
disarmament, in accordance with the contents of the Tri Partite Agreement.
- That since the UN's entry on May 5, 1999, UNAMET was in charge of
everything and the Governor was powerless. Technically execution of the
referendum was in the hands of UNAMET, although Indonesia was named
implementer.
- That after the Tri Partite there was the Hanoim Lorosae operation, in
which Witness had to carry out and prepare reinforcement of troops to
undertake the referendum. Witness was assisted by 3500 personnel or 30 SSK
from Jakarta on BKO to Witness in East Timor, and Witness was also assisted
by Civilian Police (UN Civilian Police).
- That Witness had attended a meeting led by the Accused in which Muspida,
the Kapolres, and Dandim were present, in connection to preparations for the
referendum.
- That after Chaos broke out Police went to the residence of Bishop Belo and
discovered ballot sheets, ballot boxes and pierced ballot sheets.
- That at the time of the referendum Police were ordered to carry out
security but Police were only allowed at a distance of 50 to 100 M from the
ballots, therefore the Indonesian Republic was unable to take any action
because UNAMET was in charge of everything.
- That Witness took into protective custody 200 members of the Pro
Independence group in East Timor Polda for 2 (two) months, in which Witness
protected them and fed them, because it is the Universal duty of Police to
protect those of opposing political views.
- That in the Liquisa case in connection with the prior sequence of
incidents a murder was committed by Yacinto the former Village head who was
a leader of the Pro Independence group, who subsequently fled near the
Liquisa Church to the house of Pastor Rafael, and as a result of the murder
by Yacinto a conflict broke out between the two groups.
- That most of the casualties resulting from this conflict were from the Pro
Independence group, and it was true that thousands took refuge in Bishop
Belo's house in the aftermath of the conflict.
- That after September 6, 1999, all communication had been cut off and there
was no information on what was happening, the respective POLRES were taking
care of matters, and all had come to a standstill.
- That to Witness' testimony, the Accused confirmed the Witness' testimony
concurred with events on the ground and the Accused wished to add that in
fact since the UNAMET office was inaugurated in Dili town on June 3, 1999,
government was practically not functioning.
6. Witness DOMINGGUS M.D. SOARES
- That Witness was Bupati of Dili from September 29, 1994 to September 29,
1999.
- That Witness along with the 13 Bupatis had been invited by the Governor /
Accused, in connection with preparations of option I and option II, and in
the briefing given by the Governor / Accused at the time regarding the
agreement of May 5, 1999, to urge the Bupatis to socialize and expedite the
options.
- That in the Kabupaten PAM SWAKARSA had been formed at the instruction of
the Governor / Accused, PAM SWAKARSA was a guidance program for the
community in the effort to maintain security and public order after the
emergence of option II that created much controversy.
- That the establishment of PAM SWAKARSA originated from a PEMDA Tingkat II
program submitted to DPRD, PAM SWAKARSA numbered 1000 people. PAM SWAKARSA
was a Government Program in accordance with Law No.20 year 1982.
- That the roll-call of April 17, 1999, was not the grand roll-call of PAM
SWAKARSA but an announcement of the program to be used by the region
following the emergence of option II.
- That those attending the roll-call of April 17, 1999 were representatives
from each Kabupaten, but at the time not all Kabupaten attended, according
to schedule the Governor / Accused would address the rol-call, but the
address was replaced by someone else, an elder, because the Governor /
Accused had left the roll-call.
- That the number of members from PAM SWAKARSA and other organization
attending totaled some 100 to 200 people, they wore no uniform and carried
no weapons.
- That the grand roll-call was conducted from 9:00 AM and ended at 11:00
WITA, and at the end of the grand roll-call they immediately left and did
not hold a parade.
- That regarding the incident in the residence of Manuel Carascalao after
the grand roll-call, Witness had no knowledge, as Witness was already home.
Witness heard of the incident in the Manuel Carasacalao residence from the
radio and Witness immediately telephoned the Kapolres and asked the watch to
check if the incident was connected in any way to the grand roll-call
ceremony and it was found not to be so. This was a purely criminal case and
was being handled by Polres and the perpetrators had been arrested,
numbering some 20 people who would be immediately processed.
- That Witness did not go to the crime scene, because it was already in the
hands of Kapolres and Witness asked that the case be resolved properly and
thoroughly, and Witness did not attend the burial of the victims.
- That on April 6, 1999, there was an uproar over the declaration of war
from Xanana that was reported in all the newspapers.
- That Witness had no knowledge of the incident of September 5, 1999, as he
was at the time not in Dili. From September 2, 1999 Witness and several
members were dispatched to Jakarta to protest the fraudulence carried out
when the referendum was being held.
- That since the agreement of May 5, 1999 was effected, PEMDA played no role,
there were only 3 (three) agencies responsible for the referendum, and these
were KPS, the affiliate of KOMNAS HAM which carried out disarmament, UNAMET
conducted the referendum and POLRI maintained public order.
- That one of the triggers causing the conflict between the groups was the
fraud discovered to have been committed by UNAMET, these frauds by UNAMET
being, among others the one-sided appointment of local staff, the absence of
Witness in the referendum, such that they created the results themselves,
and brought the ballot boxes to Dili without Witness.
- That other fraud occurred in SMP KRISTA the UNAMET headquarters in the
morning at 5:30 WITA where ballot casting was already conducted, despite
protests from the aggrieved parties that were not heeded by UNAMET.
- That Witness had objected to the fraud committed by UNAMET, but was
ignored, indeed the announcement of the referendum results was moved forward
to September 4, 1999, and thus the fraud by UNAMET was the main trigger to
the conflict that was the beginning of the disaster.
- That since May 5, 1999 PEMDA had no civil role or was not functioning at
all and the only agencies functioning at the time were UNAMET, KPS and POLRI.
- That Witness submitted periodical and yearly reports to the Governor /
Accused, but very important matters were reported directly or he was
summoned by the Governor.
- That the incident at the residence of Manuel Carascalao on April 17, 1999
was reported by Witness to the Governor / Accused, although that was
Police's jurisdiction. At the time the Governor / Accused said that action
should be taken, the situation secured and brought under control.
- That in the incident of August 26 1999, 2 (two) persons were killed and
Witness did not know about the wounded. Witness only heard about the ambush
by the anti autonomy group and since May 5, 1999, PEMDA was no longer
functioning, therefore it was not reported to the Governor / Accused.
- That in the hierarchical relationship between the position of Bupati and
the position of Governor, the Bupati was accountable to the Governor, but
was not the Governor's subordinate, but were equally responsible as head of
a region.
- That PAM SWAKARSA was headed by the Mayor and the appointment of the Head
of PAM SWAKARSA was at the initiative of members.
- That the incident at the house of Manuel Carascalao was perpetrated by PAM
SWAKARSA from Liquisa who were on their way back from the grand roll-call.
- That the house of Manueal Carascalao was located in Jalan Antonio de
Carvalio No. 13 that was at a distance of some 200 meters from the
Governor's Office where the grand roll-call was held.
- That indeed there was a Bupati's Decree for each member of organizations.
- That to the testimony of Witness the Accused did not object and that it
concurred with what the Accused knew. However the Accused wished to respond
as follows:
- That the Accused did indeed appeal to the Bupatis to revive the PAM
SWAKARSA system as a public order system such as siskamling (community
security system).
- That Bupatis did not submit yearly reports to the Governor but to DPRD.
- That the acts of anarchy occurring in Dili were due to the injustice and
fraud committed by UNAMET, during the referendum.
- That since May 5, 1999, Government had lost the confidence of the people
owing to the conflict between the 2 (two) sides, and fueled by the fall of
the new order which had been unpopular.
7. Witness MUJIONO
- That Witness was assigned to East Timor as Wadanrem 164 Wiradharma from
June 6 to May 16, 1999, charged with assisting the Danrem in operational as
well as unit building matters,
- That during Witness' term as Wadanrem in Dili the incidents that Witness
knew of included:
The clash on April 6, 1999 between the Pro Independence and Pro Integration
groups in Liquisa town, which began with the ambush of the Pro Integration
group by the Pro Independence group.
The clash on April 3 and 4, 1999 between the Pro Independence and Pro
Integration groups, resulting from the Pro Independence group setting fire
to 8 (eight) houses owned by the Pro Integration group that led to a violent
fight, claiming the lives of 5 (five) and wounding some others, which number
Witness did not know.
- That when Witness arrived at the KODIM base in Liquisa, the Dandim and the
Kapolres had just concluded a negotiation with Pastor Rafaeal, in which
essentially it was urged that the members of the Pro Independence group
responsible for the act be handed over to the security apparatus, and during
a repeat negotiation there were gunshots and a sweeping was conducted, and
the two conflicting sides urged to halt their fighting.
- That in the incident of April 17, 1999, Witness received a report from
KASI Intel that a clash had broken out in the residence of Manuel Carascalao
initiated by the Pro Integration group. According to the report, on their
way back the Pro-Integration group was harassed by the Pro Independence
group, and a clash broke out, leading to the deaths of 12 (twelve) people.
- That following the tripartite agreement, the PEMDA apparatus, the security
apparatus, attempted to hold a reconciliation initiated by the Governor /
Accused, POLRI apparatus, Danrem and other apparatus.
- That Witness had heard of the options issue, namely option one and option
two. Option one provided the broadest special autonomy whereas option two
was independence, this option was also called Habibie's option.
- That prior to May 5, 1999, government was still functioning and there were
still court sessions.
- That indeed there was a grand roll-call on the grounds of the Governor's
office that was attended by 6,000 people from the Pro Integration group.
- That there were 5 (five) casualties from the refugees in the Church,
resulting from the people's reaction at the time.
- That the grand roll call on April 17, 1999 was reported to the Danrem.
- That the Accused did not object to Witness testimony.
8. Witness Major General ADAM R. DAMIRI
- That Witness was assigned as Pangdam IX Udayana from July 5, 1998 to
November 27, 1999. The mechanism of duties between Pangdam and Governor was
only limited to coordination both through indirect meetings and over the
telephone.
- That Witness as Pangdam always received reports from Danrem regarding
notable incidents in the region East Timor. The reports were written as
daily situational reports.
- That according to the report from the KOREM Commander on April 17, 1999, a
clash had broken out in the house of Manuel Carascalao between the Pro
Independence and Pro Integration groups that led to the deaths of 12 (twelve)
people and a number of wounded of which the exact number Witness did not
recollect.
- That the house of Manuel Carascalao was turned into a Refugee Camp by the
Pro Independence group, at the time the Pro Integration mass passed by the
house a clash broke out, possibly upon some provocation from the house of
Manuela Carascalao, an exchange of insults led to a clash between the two
groups.
- That it was not reported whether or not the casualties died of gunshot
wounds, it was reported that the mobs carried sharp weapons such as machetes,
whereas no report of firearms reached Witness.
- That Witness had heard about PPI and PAM SWAKARSA but Witness had never
provided assistance in any form to PPI as that was not his responsibility as
Commander.
- That PAM SWAKARSA was a community organization, such as a Security System
conducted by the community in rural areas, growing and developing at the
community's initiative to safeguard their home region.
- That upon receiving the report of a notable incident from the Danrem,
Witness instructed the Danrem to prevent the conflict from spreading, to
assist police in arresting provocateurs or bringing the perpetrators to
justice. Further, any casualties should be evacuated and refugees
safeguarded.
- That Danrem reported to Witness on the incident in the residence of Bishop
Belo on April 6, 1999, in which a conflict broke out between the Pro
Independence and the Pro Integration groups, as Bishop Belo's residence was
made a refuge by the Pro Independence group, and in Bishop Belo's house was
found ballot boxes. The conflict led to the death of a small child, and the
rear part of Bishop Belo's house was set on fire.
- That Witness heard that on May 5, 1999, a Tripartite Agreement was signed
between the Indonesian Government and the Portuguese Government, witnessed
by the UN.
- That on the instruction of TNI Commander in accordance with the Tripartite
Agreement, the Indonesian Government, in this case Police, was charged with
law enforcement during the referendum in East Timor.
- That according to the agreement TNI was not permitted to undertake any
action, and therefore the TNI Commander redeployed some TNI troops out of
East Timor back to their respective stations, TNI was obliged to occupy a
military installation and was not allowed to conduct any operation, not
permitted outside the barracks armed. At the time Witness wanted to provide
back-up for Police but that had to be with the permission of UNAMET.
- That Kapolda, Danrem, and PEMDA had conducted a Sweeping in the region,
but regrettably only the Pro Integration group disarmed, whereas the Pro
Independence group and Falintil refused to disarm.
- That the measures taken by the Governor / Accused along with the KPS
established, TNI, FALINTIL representatives, Pro Integration and Pro
Independence representatives, to disarm both sides was unsuccessful, despite
KPS' call for assistance to UNAMET.
- That in order to carry out its weighty tasks in fulfilling the Tripartite
Agreement, government, in this case ABRI Commander, requested that East
Timor POLDA personnel be reinforced, among others with assistance of 30 SSK
from Java and vehicles and officers with experience serving the UN from AD,
AL, Police, to aid East Timor POLDA in order to fulfill its duties to the
maximum, and control of the 30 SSK would be in the hands of Kapolda.
- That East Timor Kapolda had taken measures in order to expedite and secure
the stages of the referendum up to the implementation of the referendum.
- That Kapolda had done well in securing registration and up to the
campaigning stage everything had gone smoothly despite small clashes between
the two groups. The next stage was the truce week in anticipation of August
30, 1999, which was the date for implementation of the referendum.
- That according to Witness, Indonesia's accomplished its task well from the
beginning up to ballot casting, and this was acknowledged by the
International community including the UN, and East Timor POLDA and its ranks
assisted by PEMDA and TNI were able to implement the referendum on August
30, 1999 safely and smoothly.
- That the following stage was vote counting and in the Tripartite Agreement
it was agreed that announcement of the referendum would be held on September
7, 1999, but as the vote counting was completed the announcement was
forcibly moved forward to September 4, at 9:00 hours WITA.
- That Witness did not know the reasons for moving the referendum
announcement forward from September 7, 1999, to September 4, 1999, that
Witness heard UNAMET argue to move the announcement up from September 7,
1999 since the vote counting was completed.
- That with the presence of UNAMET the people of East Timor had felt
disadvantaged from the beginning of the referendum process, from
registration, to the campaigning period and up to vote counting. Thus before
September 4, 1999, there was a reaction from the people who felt
disadvantaged by taking violent measures to object to the injustice of
UNAMET.
- That the Pangdam / Witness, together with Danrem had coordinated with
Integration leaders so that protests over the fraud committed by UNAMET in
implementing the referendum did not resort to violence and major
demonstrations, as it would be better to form a small team of
representatives bringing proof of the fraud committed to Yan Martin of
UNAMET.
- That according to Danrem's reports the situation after September 4, 1999
heated up with masses conveying their grievance through violence to show
their dissatisfaction with UNAMET, problems arose outside Dili, and in Dili
town itself fires were lit. Heated situations occurred in Dili town, Suai,
Liquisa.
- That Witness received a report from Danrem that a conflict had broken out
between the Pro Independence and the Pro Integration masses on September 6,
1999 in the Suai Church.
- That the incident in Liquisa on April 6, 1999 before the referendum was
held was a clash between Pro Independence and Pro Integration groups un the
residence of the Bishop of Liquisa.
- That sporadic clashes broke out everywhere, thousands of people sought
refuge, fires were everywhere, Police were hard put to overcome the
situation, Muspida elements were no longer functioning normally, and
therefore it was decided to take over KODAL (Directional Command) on
September 5, 1999, at 19:30 hours WITA, with responsibility for control of
operations in the hands of Pangdam/Witness, as Commander of Operations
Command.
- That on September 7, 1999, KODAL changed to a state of martial law, taken
over by the Martial Law Command, in order to take charge of the issue of
conflicts in East Timor all military apparatus was mobilized under
prevailing laws.
- That the consideration to impose Martial Law was due to the extremely
chaotic conditions and at the time PEMDA had broken down.
- That KODAL's task in line with its operational concept was to restore
security in the region of East Timor, to halt conflicts, and secure and
rescue UNAMET personnel, as well as safeguard existing national assets.
- That around September - October 1999 Interfet forces arrived in East Timor,
but even despite their arrival, the riots were not overcome, and indeed
government assets that had remained safe before the arrival of Interfet,
were then destroyed by the Pro Independence group.
- That on April 21, 1999, peace efforts were initiated, with the signing of
a peace draft at the residence of Bishop Belo, attended by TNI Commander,
Bishop Belo, the Governor / Accused, and representatives of the two warring
sides, namely the Pro Independence group and the Pro-Integration group.
- That Witness coordinated with the Governor / Accused to disseminate the
peace agreement, and the Governor / Accused proceeded to disseminate the
peace agreement using KPS facilities.
- That the peace agreement implemented on April 21, 1999 was a clear
indication of the Governor / Accused's concern for establishing peace
between the warring sides, given that after 23 years of dispute the peace
agreement was also signed by Xanana Gusmao.
- That in the draft for the peace agreement, it was agreed to erase all
disaffection, acrimony, and in the realization the initial measure was
disarmament, through appeals or by force through sweepings.
- That to Witness' recollection, Witness still continued to coordinate with
the Accused on September 5, 1999, during the Menko Polkam's visit, and on
September 7, 1999 in a meeting at the Governor's Office.
- That Witness was not clear about the instigators taken into custody at the
East Timor POLDA, however East Timor POLDA had employed the process of law
from arrest and examination, but Witness did not know about the following
process up to arraignment in Court.
- That Law No. 22 year 1982 regulates the matter of Wanra, Wanra being a
youth group recruited, developed and trained by TNI to assist TNI to
safeguard a region. In the event a region was under peril through armed
threats from Fretilin, they were lent old weapons to defend the region.
Wanra took part in roll-calls and guard duty at Kodim.
- That Wanra was indeed under the control of Kodim, however PAM SWAKARSA was
outside the responsibility of TNI, both in its development and in its
control.
- That regarding the role of the Governor / Accused, to Witness' observation
the Accused was not involved in conflicts, but instead attempted to prevent
clashes between the two groups.
- That East Timor POLDA and Danrem had detailed knowledge of the fraudulent
acts of UNAMET, during the referendum POLRI was not allowed in the vicinity
of ballot boxes and had to be at a distance of 100 M from the ballot boxes,
and prior to ballot casting many ballot sheets had been pierced, and many
Pro Integration people were not able to cast their ballots.
- That it is correct that under the Tri Partite agreement in connection with
point 6, it was stipulated that there would be international civilian police
assistance in East Timor to act as advisors to POLRI.
- That according to information relayed by Danrem to Witness it was reported
that in Bishop Belo's house were found ballot sheets and boxes but Witness
did not have the opportunity to ask for the evidence.
- That regarding Witness' testimony the Accused had no objection and it
concurred with what Witness knew.
9. Witness Drs. MATIUS MAIA
- That Witness was Mayor, Head of Dili Administrative region, and Witness
occupied the office of Mayor not through election but through appointment.
- That on April 17, 1998, Witness was in Dili town at the time, when PAM
SWAKARSA was declared in Dili town, as PAM SWAKARSA had existed since 1975,
1976 and 1977.
- That Witness was invited to the roll-call declaring PAM SWAKARSA, and that
the event was officiated by an elder from prominent fighters, who provided
guidance and counsel to PAM SWAKARSA.
- That regarding the incident in the residence of Manuel Carascalao
following the declaration of PAM SWAKARSA, Witness knew of the incident
after receiving information and reports from Witness' subordinates, who
reported that a mass conflict had broken out in the residence of Manuel
Carascalao.
- That according to information that Witness heard from the community, the
incident in the house of Manuel Carascalao led from a man who had
disappeared and was thought to be dead, was in fact alive and held hostage
in the house of Manueal Carascalao, and when the man shouted in the Liquisa
language, "save me", a clash ensued.
- That the task of KPS was to safeguard and secure peace between the Pro
Independence and and Pro Integration groups, and then to oversee disarmament
or sweepings.
- That with the announcement of option II by President Habibie on January
27, 1999, the region's officials were redundant and powerless.
- That in Dili town there were 1000 (one thousand) PAM SWAKARSA members from
26 Villages, and their purpose was to safeguard their villages, with the
approval of DPRD they were provided with an incentive of Rp.150,000.-/ month
that was sourced from APBD.
- That during the roll-call declaring PAM SWAKARSA in Dili the Governor /
Accused was present but did not lead the ceremony and the address was given
by Joao Tavares.
- That AITARAK's existence was not the responsibility of government, the
responsibility of government under prevailing rules was, KAMRA under police,
WANRA under Kodim, PAM SWAKARSA under Government to safeguard communities.
- That when the referendum results were announced by UNAMET Witness was not
invited to witness the ballot count and this created a dispute, and during
the announcement of referendum results violence broke out in Dili town and
scorched the town.
- That at the Witness' testimony, the Accused confirmed he did not object,
and concurred with what Witness knew.
10. Witness LEONETO MARTIN
- That Witness became Bupati Tingkat II of Liquisa, from 1994 to 1998, and
at the time Witness was Bupati the Governor was the Accused.
- That on April 3 1999 the Anti Integration group threatened the Pro
Integration group at Kecamatan Liquisa and this was repeated on April 4,
1999, at Kampung Pukelara, resulting in the Pro Integration fleeing on April
4 and 5, 1999, the April 4 and 4, 1999, incidents were settled by Tripida,
namely the Camat, Kapolsek and Koramil.
- That on April 5, 1999, Anti Integration people attacked Kampung Pukelara
by hacking a woman named Paulina and set fire to the villagers' houses. At
this incident the people of Maubara from the Integration Group chased them
to Liquisa town and they sought refuge in the Church and in the house of
Manuel Carascalao.
- That on April 6, 1999, the pro Integration people demanded that the people
seeking refuge in the Pastor's house who carried sharp weapons should give
themselves up to security authorities, but the demand was not met, and then
Witness heard shots.
- That the distance from Witness' house to the Church was approximately 200
M, and as a result of the incident at the Liquisa Church, 5 (five) were left
dead and 20 were wounded.
- That PAM SWAKARSA was formed in accordance with Law No.20 year 1982 but
Witness did not know the number of its personnel as it was not followed up
by a Bupati's Decree nor by a Governor'd Decree.
- That PAM SWAKARSA members in Liquisa received assistance of Rp.50,000 per
person, paid out once between June and July 1999, this fund was derived from
APBD reserve funds. PAM SWAKARSA members in Liquisa numbered some 1000.
- That Witness had reported the incident in Liquisa to the Governor /
Accused, including the casualties of dead and wounded, the Governor /
Accused directed Police to investigate the case.
- That the dead victims were buried in Maubara in a public cemetery, and
when the victims were interred Witness was not present.
- That on April 7, 1999, Witness along with Dandim and Kapolres visited the
crime scene in the Pastor's residence.
- That implementation of the referendum was marked by fraud perpetrated by
UNAMET, including in the announcement of referendum results which was
scheduled for September 7 and was moved forward to September 4, 1999,
therefore drawing protests.
- That on the Witness' testimony there was no confirmation of no objection;
11. Witness JOAO FEREIRA
- That on April 5 and 6 1999 Witness was present in the Liquisa Church. On
April 5, 1999, MILISI launched an attack from Maubara at Liquisa Church and
on April 6, 1999, a Brimob unit arrived, Witness thought Brimob's arrival
was to safeguard, but around 13:00 WITA Kodim 168 launched an attack,
together with MILISI who had entered Liquisa Church.
- That there were many people taking refuge in the Church, Witness could not
count them, they were from CNRT;
- That many men carried out the attack on Liquisa Church and could not be
counted, they carried sharp weapons and sticks.
- That during the attack security forces were 5 (five) meters from the
Church, they were outside the Church.
- That when the attack was launched Witness heard gunshots, hearing gunshots
Witness became afraid, Witness did not know who was shooting nor did he know
which direction the shots came from.
- That as a result of the attack Witness himself was wounded, and other
casualties aside from Witness were Da Costa, Augustinho, A. Dos Santos,
Jonico, Narsizo, Manuel Lisboa, Anuko.
- That Witness sustained hacking wounds that caused him to lose
consciousness, and Witness was treated in Hospital for one week.
- That Jose Ramos a member of Kodim in Liquisa brought a weapon into the
Church compound and fired shots but Witness did not know who he shot,
Witness also saw Tome Diogo a member of Liquisa Kodim inside the Church
compound.
- That Witness was rescued to the house of the Bupati of Liquisa, all
refugees from the Church entered the house of the Bupati of Liquisa.
- That people had taken refuge in the Church because MILISI was about to
launch an attack from Maubara.
- That before the clash broke out Witness saw 5 (five) policemen consisting
of 3 (three) Brimob members and 2 (two) liqisa Polres members, arrive to
meet the Pastor.
- That to Witness' testimony the Accused did not object.
12. Witness EURICO GUITERRES
- That indeed on April 17 1999, Witness was in the Governor's Office in Dili
to attend the grand roll-call. Witness attended as Deputy Commander of PPI,
those attending at the time included Joao Tavares, the Governor / Accused.
At the time of the grand roll-call the Accused made no address at all.
- That Witness himself made the opening address, Witness called for the
people of East Timor both Pro and Anti Integration to remain united to
accept independence and remain part of the Union State of the Republic of
Indonesia.
- That some 5000 people attended the grand roll-call, the majority being Pro
Integration from everywhere whereas non from the anti Integration group
attended, the grand roll-call ended at 12:30 WITA.
- That Witness did not know of the incident in the residence of Manuel
Carascalao. Witness only knew of the incident after Witness returned from
his mother's home in Dekora. That at the incident in the residence of Manuel
Carascalao police immediately secured the attackers, and the house was
closed with a police line. Witness heard that some 20 (twenty) people had
been arrested.
- That as a result of the incident in the residence of Manuel Carascalao
there were a number of deaths but Witness did not know the names.
- That Head of PAM SWAKARSA in Dili town was former Dili Mayor Matius Maia,
and PAM SWAKARSA members were not from the only Integration group, but also
from the Anti Integration group, they were headed by the Kelurahans or
Village Heads across Dili under the leadership of the Mayor. Witness as a
member of PAM SWAKARSA received a salary from Rp. 50,000 to Rp.100,000. PAM
SWAKARSA was registered with the Mayor's Office.
- That Pejuang Pro Integrasi (PPI) emerged as a result of an agreement
reached on May 5, 1999, in which the Pro Integration group were given
freedom to establish its won group and its political wing at the time was
FPDK headed by Dominggus Soares, BRTT headed by Yosep de la cruz, whereas
from the Pro Independence group was formed CNRT headed by Xanana Gusmao and
its military wing was Falintil.
- That on April 17, 1999, during the grand roll-call the ceremony was
officiated by Joao Tavares, and Commander of Ceremonies was Jos Esmeres.
- That the task of PPI Commander was to coordinate all Pro Integration
people in preparing to fight to win the referendum, and also to provide
protection for the people threatened by terror and intimidation from the
Fretilin.
- That Witness on April 6, 1999 was in Liquisa to meet the pastor on the
orders of Bishop Belo, Witness came to inquire about what had happened at
the time. Pastor Rafael recounted the incidents of April 4 and 5, 1999, in
which people who were being pursued sought refuge in the Pastor's residence.
- That Witness told the Pastor that the residents sheltering there should be
immediately evacuated back to their respective homes, and then Witness left
the pastor and went to meet the former Bupati of Liquisa Leonito Martin,
from Leonito Martin's account, Witness discovered that the Village head of
Dato who had hacked a Besi Merah Putih family was hiding in the Pastor's
house. Then Witness returned to Liquisa Church to talk to the Pastor to
surrender Yacinto the Village Head of Dato to police in order to resolve the
matter.
- That Witness observed that near Liquisa Church many people had assembled
carrying machetes, home-made weapons, Witness did not know what group they
belonged to, Pro Independence or Pro Integration.
- That Witness departed for Maubara to see the people's houses that were set
on fire, Witness observed that Maubara appeared like a dead town, and on his
return from Maubara Witness came to know about the incident in Liquisa, so
Witness went to Liquisa Church after the incident.
- That when Witness arrived the casualties had been brought to Kodim and to
the Bupati's house, and no more casualties were found in the Church.
- That Witness reported the incident at the Liquisa Church to Bishop Belo
and Bishop Belo decided that on September 7, 1999 he would visit Liquisa to
view the situation.
- That in the structure of PPI, there were Battalion Commanders, Company
Commanders, Platoon Commanders, as did Fretelin with Xanana as its Commander.
- That to Witness' testimony the Accused made no objection but Accused
wished to add that he recognized the roll-call not as a PAM SWAKARSA
roll-call but as a PPI roll-call. The Accused was invited to give an address
but the Accused refuse, as the Accused had to host a meeting with the Irish
Foreign Minister that day.
13. Witness EMILIO BARITO
- That on April 5, 1999, at approximately 7 to 8:00 WITA Witness was in his
Office and heard gunshots from Liquisa town and the Witness fled and sought
refuge in the Church.
- That Witness entered the Church at 10:00 AM , and inside the Church
Witness came upon nearly 3000 (three thousand) people who were seeking
refuge.
- That on April 6, 1999, at approximately 13:00 WITA there was an attack on
the refugees in Liquisa Church using firearms, home-made weapons and swords.
- That among those carrying out the attack were soldiers in civilian attire,
and a uniformed policeman was outside the Church compound.
- That among those who carried out the attack with firearms, Witness
recognized a TNI soldier, Tome Diogo, in addition some wore masks who
Witness did not recognize.
- That Witness was hacked in the head but Witness managed to escape, in
addition there were 9 (nine) fatalities, including Augusta who Witness was
acquainted with, while others wounded included Witness' friend Zinunis, who
sustained a hacking wound in the neck, and Joao Fereira, with hacking wounds
from a samurai sword.
- That Witness saw some 200 (two hundred) Policemen arrive, upon seeing them
Witness they were there to provide protection and the refugees felt safe,
but the attack continued, Witness and the refugees felt that Police failed
to overcome the situation.
- That on September 5, 1999, at around 10:00 WITA in the morning Eurico
Guterres arrived and immediately spoke with Pastor Rafael, and in accordance
with the Bupati's request Eurico Guterres asked that any CNRT leaders in the
Church should be surrendered, so that refugees who had not eaten since the
day before could return to their respective homes.
- That Witness could still remember the names of those who died, they were
Yacinto, Augusto, Augustinusino, Victor, Manuel Lisboa, Jonicio and Anuko
and others whose names Witness did not recall.
- That as a result of shots fired at the Pastor's house glass and windows
were destroyed, because Witness was frightened he hid on the floor.
- That Witness heard TOME DIOGO the TNI soldier say the words "attack,
attack, kill them, attack them".
- That the people seeking refuge in the Church were ordinary people not CNRT,
and no provocation had come from inside the Church.
- That the attackers were MILISI, and TNI in civilian clothes while Brimob
were outside. Witness did not know if Bupati Leonito Martins was involved in
the attack.
- That some 1000 (one thousand) people attacked the refugees in the Church.
- That to Witness' testimony the Accused made no objection.
14. Witness Police First Lieutenant SONY SANJAYA
- That Witness was a Brimob Platoon Commander stationed in Kabupaten
Covalima, East Timor, at the time the referendum was held.
- That at the time of the incident in the Ave Maria Church in Suai, Witness
at the time was evacuating refugees from residents' houses to the SMP, on
that afternoon Witness heard gunshots, and after escorting the refugees
Witness immediately headed to Suai Church.
- That when Witness was about to enter the Ave Maria Church in Suai, in the
streets around the Church and in front of the market Witness saw many TNI
and POLRI men, that were standing at ease outside the Church enclosure, then
Witness approached and asked one soldier standing at ease outside the
enclosure "what's up", and was answered "Pro Integration troops have gone
into the Church".
- That at the time Witness was outside the enclosure and Witness saw many
people inside the Church, then there was an exchange of gunfire. Witness
knew that inside the Church there were many people wearing Pro Integration
attire.
- That Witness found dead bodies in the Church, Witness estimated there were
over ten dead bodies in the Church, and some of the bodies were clad in Pro
Integration shirts Autonomy shirts.
- That when Witness identified the dead bodies, someone named some bodies as
Pastor whose names Witness did not recall.
- That all of the dead bodies were collected by Witness' own men, with no
assistance from others, eventually Witness shouted at the people there to
help collect the dead.
- That in the vicinity of the Ave Maria Church there were TNI and POLRI
personnel who made no attempt to prevent the incident, Witness saw them
standing idly and just at ease. Witness asked why they had not held back the
attack, and they replied they had not dared to do so as the numbers
attacking were considerable at the time. Witness, himself, joined in
attempting to put an end to the clash.
- That when the attack was over an evacuation was conducted jointly by TNI
and POLRI including Witness.
- That Witness saw fires in the Suai Church compound, and during the attack
Witness saw some Portuguese made firearms of the GP type and home-made
weapons being used.
- That the bodies Witness collected, some came from inside the Church and
some from inside the Church compound, or within the Church enclosure.
- That at the time the attack on Suai Church was taking place, Witness saw
there Olivio Moro a Battalion Commander of Laksaur from the Pro Integration
group, Witness saw him carrying a gun but did not recall the type.
- That Witness fired warning shots for the mass to retreat, Witness along
with his men were one team. Witness ordered his men to fire only if Witness
himself, opened fire.
- That Witness reported the incident to Kapolres, and Witness also saw that
the Bupati and Dandim were held up at the market which was some 20 to 30 M
from Suai Church.
- That Witness could not say who had fired the shots, the Pro Independence
group or the Pro Integration group, but Witness heard rapid gunfire in the
Church.
- That when Witness reported the incident to Kapolres, the Bupati wanted to
approach the Church but Witness prevented him, because the situation was
unpredictable.
- That what moved Witness when he looked into the Ave Maria Church was the
dead body of a woman holding the lifeless body of her child, and Witness saw
that most of the dead had been hacked.
- That regarding the burning incident of September 5, 1999, Witness had
attempted to check the fires maximally by dousing with water, but other
riots with burnings erupted in other places, and eventually the fire spread
evenly and Witness was unable to prevent it.
- That to Witness' testimony the Accused did not object.
15. Witness PRANOTO
- That Witness was Principal of a SLTP who was assigned to Suai from 1984 to
1999.
- That on September 6, 1999, while taking refuge in Betun, Witness met Lettu
TNI Sugito at 14:00 WITA, Witness asked him here he was going and was
answered to Suai, and Witness said he wished to go along.
- That Witness together with Lettu TNI Sugito arrived in Suai town at 17:00
WITA, then Olivio Mendoza Muruk from the Laksaur Group approached and
recounted to Lettu TNI Sugito, that they had just clashed with the Pro
Independence. Witness and Lettu TNI Sugito then headed to the Ave Maria
Church at around 17:20 WITA. Witness saw that dead bodies were already
collected in front of the church, Witness recognized 3 Pastors, namely
Pastor Hilario, Pastor Fransisco and the third was a Javanese Pastor.
- That Witness and Lettu TNI Sugito along with the community there carried
the 14 dead bodies to a Priory vehicle and the bodies of the 3 (three)
persons were put in a utility vehicle owned by the Priory, and covered with
atrapaulin. As it was late and dark, Witness and the community members
returned home.
- That the next day at 6:30 WITA Witness and his friends had assembled, to
transport the bodies there were 3 (three) vehicles, the Priory utility
vehicle, a mikrolet and a Hospital-owned Panther.
- That Witness and his friends brought the bodies to the Metamao beach in
East Nusa Tenggara for burial and then Witness along with the community led
by Martenus Biri dug three graves for the Pastors, and 14 graves for the men
and 10 for women.
- That the total number of dead came to 27 (twenty seven) people, included
in that number was a small child.
- That when Witness lifted the body of Pastor Hilario Witness saw that that
his hands, feet, shoulders, and head had hacking wounds.
- That Lettu TNI Sugito brought the 14 male bodies in the Panther vehicle,
the utility vehicle carried the 3 (three) Pators and the mikrolet carried
the female bodies.
- That the bodies were burid in NTT territory on the Metamao beach, next to
an old graveyard, the bodies were not buried in Suai Town owing to the
unlikely situation.
- That to Witness' testimony the Accused did not object.
1. Witness GUILHERME DOS SANTOS
- That Witness is former Bupati KD Tingkat II in Bobonaro, from August 1994
to September 1999.
- That from April to September 1999 there were many incidents in Bobonaro,
one incident was the murder of Manuel Soares Maulaka Gama on April 12, 1999
at 7:00 WITA in the morning when he was heading to Maliana.
- That Witness had reported the murder to the Governor / Accused, and as
Level II Regional Head Witness was accountable to the Governor, Level I
Regional Head, as Witness' superior.
- That Witness knew that PAM SWAKARSA was formed under Law No.20 year 1982
to defend the country, and Witness was not clear about the number of PAM
SWAKARSA in Bobonaro as that would depend on the need.
- That PAM SWAKARSA was not paid a salary but given an incentive if they
were deployed. Witness did not know who organized PAM SWAKARSA, clearly PAM
SWAKARSA was trained and handled by Police or the military, and they were
not armed.
- That nearing the referendum on August 30, 1999, the people had formed
organizations that were each given a name. This was also reported to the
Governor / Accused and the existence of the organizations were accepted
positively, along with the presence of PAM SWAKARSA, to safeguard the
respective communities.
- That in Bobonaro there were 2 (two) groups namely FPDK (Opposition Forum
for Democracy and Justice) and BRTT (East Timor People's Front). These
groups were formed to socialize the defense of autonomy to the widest extent.
- That the Governor / Accused had invited Bupatis from all Kabupatens to a
meeting in preparation of the referendum, in particular for socialization to
the people, and to ask that officials remain neutral and the people given
the opportunity to opt for autonomy or not.
- That incidents occurred not only in Kabupaten Bobonaro, but all across
East Timor there was violence, only this was not reported to Witness'
superior, and the houses set on fire were owned by both Pro Independence and
Pro Integration people.
- That other incidents that occurred, nearing registration or the referendum,
many fraudulent actions were committed by UNAMET to allow the Pro
Independence group to win.
- That the fraud by UNAMET was very clear, as during the ballot casting on
August 30, 1999, at the ballot boxes there were no witnesses from the Pro
Autonomy group, only the Pro Independence group were present, even Police
were allowed only at a distance of 100 M from the ballot boxes, this was an
outstanding fraud by UNAMET.
- That PAM SWAKARSA was directly headed by the Regional Head and not under
Kodim or Police but they were trained by Police and Witness was Head of PAM
SWAKARSA. The incentive payment for PAM SWAKARSA was obtained from APBD
contingency funds and this was approved by DPRD. As this was a PEMDA policy
Witness did not seek approval from the Governor / Accused.
- That Dadurus Merah Putih and Hamete Merah Putih were not PAM SWAKARSA, but
groups formed by the communities themselves nearing the referendum day of
August 30, 1999, and along with PAM SWAKARSA their aim was to maintain
security and public order.
- That PAM SWAKARSA and these groups were not armed, whereas MILISI was
armed. Since UNAMET arrived in East Timor it grouped BRTT, FPDK under MILISI.
- That to witness' testimony, the Accused did not object.
2. Witness DJOKO SUGIANTO
- That Witness was Head of KOMNAS HAM since December 1999.
- That the task of KOMNAS HAM was to ensure that human rights were upheld in
the interest of the state, and there were 4 (four) prerogatives held by
KOMNAS HAM, namely: 1. Conducting investigations, 2. Conducting studies, 3.
Conducting monitoring and 4. Conducting mediation.
- That the arrival of Witness in East Timor on April 17, 1999, was to
improve the work and tasks of KIHAMPIL (Independent Commission for Human
Rights in Timor Loro Sae) and to anticipate the heated situation occurring
from February to April 1999 so as to eliminate fears of serious human rights
violations.
- That when Witness and his team were at the Mahkota Hotel, Witness suddenly
saw a rally using vehicles and with firearms and ordinary weapons present.
Then Witness heard that a Sweeping was taking place and a grand roll-call on
the grounds of the Governor's Office.
- That following the disbanding of the grand roll-call on the grounds of the
Governor's Office, there was a Sweeping that led to the deaths of East Timor
residents who were not from the Pro Integration group.
- That after the procession was over and the rally had died down, Witness
and his companions visited the casualties at the hospital, apparently 17 (seventeen)
people had died, and one policeman was wounded.
- That after the process of meeting with prominent figures from both
disputing sides who said they were committed to peace, a peace agreement was
drawn up. Then at the residence of Bishop Belo in Dili Diocese through the
agreement was born KPS (Commission for Peace and Stability) that functioned
to monitor and oversee implementation of peace. At the time those present at
the residence of Bishop Belo were TNI Pangab, Pangdam, the Governor /
Accused, Bishop Belo, Xanana Gusmao and leaders from the two opposing sides.
- That this agreement was effected on April 12, 1999, and approximately 4 (four)
days later Witness assembled the leaders of the two opposing sides to
appoint a Chairman.
- That at the time of the referendum on August 30, 1999, only Witness
remained in Dili, Witness had allowed his companions to return to Jakarta.
After the referendum was over Witness heard there was gunfire or gunshots in
the vicinity of the KPS office, but who had fired the shots and who the
victims were Witness did not know.
- That with the birth of the May 5, 1999, resolution, in one article it was
stipulated that KPS together with UNAMET would attempt or enable to produce
an agreement concerning implementation of the referendum and this was
accomplished on June 18, 1999, in Jakarta.
- That under Resolution 1246 an agreement for a referendum was reached
between RI and Portugal and based on existing terms. That concerning
implementation of the referendum beginning with registration, ballot casting,
collection of ballot boxes, to counting the entire process was placed in the
hands of UNAMET, whereas KPS would merely monitor the presence of human
rights violations.
- That at the time the referendum was implemented Witness heard from the
Bupatis and Mayors and liaison officers that many things were not in order,
from registration, to ballot casting, and even during ballot counting itself,
so that fraud was found on the part of UNAMET.
- That grievances were addressed at the UN, in particular from the Pro
Integration side, because recruitment of staff was sourced from the pro
Independence side, both university and high school students.
- That up to June 17 or 18, 1999, KPS was working unevenly because Xanana
Gusmao from the Pro Independence side was never able to attend.
- That to Witness' testimony the Accused had no objection, but the Accused
also wished to add several points:
- The Accused was not a member of KOMNA HAM, but witnessed the peace vent at
the residence of Bishop Belo.
- That under the May 5, 1999 agreement, PEMDA and Central Government were
only to provide security which was provided through Police and
implementation of the referendum was to be conducted by UNAMET.
3. Witness MARTINHO FERNANDEZ
- That Witness was Bupati of Viqueque, and Witness was in frequent contact
with the Accused as Witness' superior and the Accused discussed with him the
implementation of the referendum.
- That of 13 Kabupatens in East Timor, 3 (three) Kabupatens experienced
riots and these were Liquisa, Dili and Suai.
- That when Witness received reports from his community of any incidents,
Witness would relay the reports to the Governor / Accused, and the Accused
would suggest cooperation with security officers to secure the situation.
- That Witness along with Danrem had delivered a Letter from the Accused
that Witness was to hand over to Fretilin in an effort toward reconciliation.
The Accused had also floated an idea to build a monument for victims from
UDT, Fretilin and Apodeti, all victims would be considered as heroes. The
Accused then suggested the establishment of the organization "Klibur Oan
Timur Ba damai".
- That PAM SWAKARSA was in villages to safeguard the village population,
they received no salary but were provided some compensation money, that was
derived from Kabupaten funds. The number of PAM SWAKARSA members was never
reported to Witness.
- That following the New York agreement of May 5,1999, many organizations
were created such as BRTT and FPDK that were the initiative of pro autonomy
people to win the referendum.
- That Fretilin men from the jungle had set fire to houses, Fretilin people
in the jungle had weapons but nothing could be done about that, that during
the referendum all arms were to be laid down.
- That since UNAMET arrived in Viqueque, two days later violence increase d
where previously there had been no violence.
- That Witness was once invited to an official meeting by the Governor /
Accused, that they met as friends when Witness was in Dili, Witness
frequently met the Accused.
- That regarding relations between UNAMET and Fretilin, according to reports
from the people, UNAMET wanted Fretilin to win in the referendum.
- That to Witness' testimony the Accused did not object, but the Accused
wished to add that indeed the Accused had formed the organization Klibur Oan
Timor Ba Damai, which meant Timorese Towards Peace, which had progressed
well, in particular with the participation of CNRT, but Xanana Gusmao sent a
letter from prison in Jakarta forbidding CNRT people to join the
organization.
4. Witness VIDAL DOMINGGUS DAUTEL SARMENTO
- That Witness' last office was as Bupati of Manatuto from 1998 to 1999.
- That Witness knew of the incidents nearing the referendum, Witness knew
the Governor / Accused had never ordered the assaults.
- That the Governor / Accused together with Danrem and Bupatis had appealed
to all the people of East Timor to prevent contention between the two groups,
Pro Integration and Pro Independence.
- That Witness had heard from the people that UNAMET had provoked the Pro
Integration group, and that indeed there were witnesses from the Pro
Integration group at the ballots, one of them was a friend of Witness.
- That on August 29, 1999, a party of Australians led by a former Australian
Prime Minister and numbering 12 people visited Witness/ house and asked who
would win the referendum, Witness replied the pro Integration Group, by
about 85%.
- That UNAMET recruited witnesses for the ballots through pastors from the
Pro Independence group, the list of witnesses was obtained from the Pastors.
- That Witness had seen an Australian train CNRT youths in military warfare
at Tasihalum in Kabupaten Manatuto.
- That Reconciliation was conducted through a traditional oath taken by the
pro Autonomy side and the Pro Independence side, by slaughtering a buffalo,
drinking palm wine and chewing betel leaves, they take an oath for the two
sides to refrain from persecuting each other.
- That the fraud committed by UNAMET in Kabupaten Manatuto was reported by
Witness to FPDK and BRTT leaders to be relayed to the Governor / Accused.
That the people claimed they had received ballot sheets that were already
pierced and ready to be placed in the boxes.
- That the youth on duty at the ballots were from the Pro Independence group,
UNAMET officers stood some 3 M from the ballots, Police were on duty 50 M
from the ballots and UNAMET was in control.
- That at this fraud by UNAMET Witness submitted a report to the Governor
and Witness delivered copies to Kapolda and Danrem.
- That Witness did not attend the PAM SWAKARSA grand roll-call on April 17,
1999, on the grounds of the Governor's office.
- That in Kabupaten Manatuto there was a PAM SWAKARSA and it numbered some
150 people, they assisted police in setting up the ballots. This PAM
SWAKARSA asked for a donation of rice, and so Witness delivered rice to them.
- That PAM SWAKARSA's task lay in their own village, they were handled by
Bimpolda, at any disturbance they would inform Bimpolda, and the ballots
would be secured. Witness only once provided assistance to PAM SWAKARSA, and
that was the rice donated at the camat's request.
- That government was no longer running effectively, only 50% was partly run
by CNRT, and they would no longer deal with the leadership.
- That to Witness' testimony, the Accused made no objection.
5. Witness NICOLAY APRILINO SH
- That Witness was Chairman of the Foundation for the Study and
Investigation of Human Rights and Social Issues, and also of the Advocacy
Team at the East Timor Protestant Church, and later former member of DPRD Tk
I Tim-Tim, KPS member and member of the UNAMET Observer Team.
- That Witness' task was to monitor the activities prior to and following
the referendum.
- That the fraud committed by UNAMET had begun when local staff were being
recruited for UNAMET, in which the local recruited were mostly from CNRT
youths. Whereas not one from the Pro Integration group passed the selection
process with the excuse that they were part of the Indonesian Government.
- That UNAMET visibly indicated its partiality by granting a looser campaign
schedule to CNRT, whereas the campaign schedule for the Pro Integration was
very limited.
- That during the referendum witnesses from the Pro Integration side were
not involved in the ballots, ballot casting was opened at 5 o'clock in the
morning and people opting fro option II were prioritized. During the
referendum the ballot boxes were not opened, illiterate people and the
elderly were guided by the hand by CNRT youths to cast their ballots for
option II, Witness objected but was ignored by UNAMET.
- That after the referendum the ballot boxes were taken to Baliday by
Helicopter, and from Baliday half of the ballot boxes were brought to Darwin.
So the count was made in Darwin.
- That since the option II was offered by former President Habibie on
January 27, 1999, violence began to escalate, so it was not limited to the
referendum period. From February to March the Fatafao people from Maubara
had fled to Atambua, and some were placed in the Maubara fort, some fled to
the Bupati's house, and some fled to Liquisa and Dili Town.
- That before UNAMET was formed there were already many white people in Dili
and some posed as reporters, and some even went into the jungle. Witness
himself saw many Australians and Japanese in the jungle.
- That the riots peaked after September 4, 1999, after the results of the
referendum were announced. On that day in Dekora region CNRT youths and anti
Integration groups had descended to celebrate. There the homes of migrants,
Pro Autonomy people were stoned, the people were assaulted in the streets,
and frequently Koramil personnel from Dekora were assaulted by CNRT youths.
- That Witness saw that in the violence that occurred in East Timor the
Governor / Accused never played a role nor took part nor urged the people to
violence, indeed the Accused appealed for violence to stop.
- That Witness read in Suara Timor Timur, the Governor / Accused always
called for or instructed the people to be wary of provocation in Dili Town,
and to maintain security and not to resort to violence.
- That other violence occurred during the last campaign of the autonomy side
on August 26, 1999, this violence led to the deaths of 3 Pro Autonomy people
in Dekora near the Kulugun bridge. At the time the pro Autonomy group were
in a procession around the town and objects were hurled at them and they
were even fired at from the workshop of a Chinese at the end of the bridge.
- That Witness had never held a direct dialogue with the Governor / Accused
but at each KPS meeting they would meet along with representatives from
PEMDA.
- That on July 7, 1999, Witness' house in Kintalki was rushed by CNRT, who
called Witness a ninja or Maobu. Witness was also called an intel or
informer whereas Witness had no knowledge of intelligence matters.
- That human rights violations that took place resulted from the Pro
Integration group feeling injured and they rose in opposition.
- That the incident at the Liquisa church on April 5 began with an attack by
CNRT youth led by the Village Head of Dato named Yacinto, then this was
retaliated resulting in the people fleeing to Liquisa church where Pastor
Rafael was. That at the time there was indeed provocation and intimidation
by CNRT youths. Only lated did the pro integration people rise in anger.
- That during the inauguration of BRTT at the Mahkota Hotel, Roving
Ambassador Lopes De Cruz stated his objection to the option, and he opposed
the option. If the option was carried out and if autonomy won blood would
drip, and if autonomy lost blood would flow. It was a symbolic phrase to
mean that if the referendum were carried out there would be civil war.
- That during the PAM SWAKARSA roll-call in Dili on April 17, 1999, Witness
was there to monitor the event, and when PAM SWAKARSA paraded past the house
of manuel Carascalao, from inside the house there were cries for help, and
from Manuela Carascalao's house attacks were made on PAM SWAKARSA people.
The PAM SWAKARSA people from Liquisa then descended on the house, and after
they were inside apparently one of their kinfolk was at the home of Manuel
Carascalao, brought by Manuel Carascalao from Liquisa to his house on April
5 and 6, 1999.
- That when PAM SWAKARSA from Liquisa rescued their kinfolk who was at the
house of Manuel Carascalao, Manuel Junior the son of Manuel Carascalao
castigated an elderly man from PAM SWAKARSA with profanity and anger was
ignited.
- That since the option was issued Witness saw that Governor and East Timor
PEMDA had broken down completely, and no longer functioning, with everything
determined by central government.
- That the fraudulent actions of UNAMET were reported to Deplu. That all
ballot boxes were brought to Darwin by air and that Witness himself
witnessed this when he came to the UNAMET office.
- That all incidents that Witness recorded in the field, Witness reported to
KPS, that Witness together with Joko Sugianto, Florentini, BN Marbun came to
the Maubara fort in Liquisa to see the refugees.
- That to Witness' testimony the Accused made no objection.
6. Witness BASILO DIAS ARAUJO
- That Witness had worked at the Capital Investment Office in east Timor and
the function of Witness was to act as official translator for the Governor
and Danrem, from 1997 to 1999.
- That the Accused had ordered Witness to seek Pro Independence figures who
could be embraced and Witness had seen the Accused invite Pro Independence
figures to his house.
- That the Governor / Accused had asked the Australian Ambassador to
facilitate a reconciliation meeting between all East Timorese in a third
country and had also asked the Caandian Embassy for help in facilitating
meetings between East Timor figures.
- That the Accused had brought up the fraud committed by UNAMET specifically
on August 30, 1999, including the fraudulency committed from August 10 to
August 30, 1999. Witnesses from the Pro Integration group were not allowed
at the ballots by UNAMET, and Pro Integration witnesses were also not
invited by UNAMET during the ballot count.
- That Witness heard from Electoral Commission Judges from South Africa,
South Korea and Northern Ireland, that the decision made at the time was
UNAMET had admitted to the fraud.
- That UNAMET was no longer neutral, for example the UN spokesman became the
mouthpiece of UNAMET in East Timor. He had stated that if you chose CNRT you
elected to live in a big house, whereas if you chose autonomy you had
elected to be in a small room of a large house.
- That the Pro Integration side had never signed off the results of the
referendum.
- That on September 3, 1999, after a session chaired by 3 (three) judges
from South Korea, South Africa and Northern Ireland was over, there was no
opportunity to relay this to the Accused, as the next day the referendum
results were announced. Witness planned to report the incident on September
4, 1999, but on September 4, 1999 the UN announced the results of the
referendum.
- That Witness witnessed the grand roll-call on the grounds of the
Governor's office but it was not a PAM SWAKARSA roll-call but a PPI
roll-call, Witness did not take part in the roll-call but saw it while
crossing from the Governor's office.
- That regarding the incident in the residence of Manuel Carascalao Witness
did not witness it but Witness heard directly about it from Manuel
Carascalao and his son who came to the Danrem's residence to request arms.
- That the UN Electoral Commission was a special commission higher than an
electoral commission and they introduced themselves as judges. They convened
in Baliday.
- That from September 1, 2, 3, Witness brought 600 witnesses to the session,
the panel of judges repeatedly questioned the witnesses until the witnesses
grew angry and rapped on the table.
- That officially on September 4, 1999, a letter was issued rejecting the
referendum results.
- That all UNAMET's fraudulency should have been conveyed to the commission
of 3 (three) judges but Witness did not know where they were.
- That to Witness' testimony the Accused made no objection, and he wished to
add that the Electoral Commission judges were only known to the Pro Autonomy
group on August 30, 1999, and their presence had been covered up so that it
was not generally known.
7. Witness HERMINIO DA SILVA COSTA
- That Witness had been head of the Civil Servants Cooperative in East Timor.
- That Witness had heard of the attack in Liquisa, the attack was carried
out by CNRT in Maubara assisted by pastor Rafael. Witness was informed that
2 (two) Pro Autonomy members at a hotel were killed by CNRT, and the people
who had committed the murders fled to Liquisa Church to hide.
- That on April 6, 1999, police came to ask Pastor Rafael to surrender the
murderers to be brought to justice, but the pastor refused, and then a shot
was fired from inside the church. That Witness heard that the incident in
Liquisa church had resulted in deaths and injuries.
- That Witness heard through the radio that the Governor / Accused was
appealing to the people to remain calm, and to the Pro Autonomy people whose
members were killed by CNRT to refrain from taking action, and that all
matters should be left in the hands of police to be resolved through the law.
- That the Governor / Accused's call at the time appealed to community
leaders to refrain from taking matters into their own hands and to using
violence to resolve the issue, and that everything should be reported to
their leaders in their respective areas.
- That to Witness' testimony the Accused did not object.
8. Witness DRS. RAJA KARINA BRAHMANA
- That Witness was Sekwilda in East Timor from March 9 1993 to September 6,
1999.
- That on April 17, 1999, Witness was invited to a PPI roll-call and the
invitation was signed by Dominggus Soares as Bupati Tk.II of Dili. Among
those present at the event were the Governor / Accused, echelon one staff
and echelon two staff. The meeting was initiated by PPI itself.
- That the Pro Integration force was henceforth known as PAM SWAKARSA and it
had originated from themselves. Witness did not know if all kabupatens were
present at the event.
- That in its activities PAM SWAKARSA did not receive special funds from
central Government nor from PEMDA. But they had asked for assistance from
the bupatis and also to the Governor according to the financial condition of
PEMDA at the time.
- That PAM SWAKARSA present in the roll-call on the grounds of the
Governor's office numbered approximately 1000 people. The AITARAK
organization in their integration process joined with PAM SWAKARSA>
- That there was no administrative control over PAM SWAKARSA by PEMDA tk I
and PEMDA Tk.II, but they did submit a budget for their funding and the
Governor instructed them to see the sekwilda for assistance.
- That officiating the grand roll-call was Joao Tavares, who at the time
called for determination to maintain East Timor as an integral part of the
Union State of the Republic of Indonesia.
- That at around 5:00 to 6:00 in the evening Witness was informed that when
the PAM SWAKARSA roll-call was over and they were in a procession heading
home, as they passed by the house of Manuel Carascalao a verbal match and an
exchange of jeers took place that led to a clash.
- That according to information received by Witness, there were 2 (two)
people dead, and one was the son of Manuel Carascalao.
- That the Governor / Accused asked all kecamatans and kabupatens to set
aside funds for social aid and for the success of the referendum.
- That during meeting with bupatis, the Accused asked the regions to
maintain security in their communities, villages, kecamatan, and so on.
- That during the roll-call on April 17, 1999, it was true that some had
brough sharp weapons, or home-made weapons. That to hold the roll-call of
April 17, 1999, a permit was requested from PEMDA for use of the location.
The event took place from 9 in the morning to 11.
- That Aitarak, Besi Merah Putih, Laksaur were Pam Swakarsa.
- That the incident in Kabupaten Covalima was reported to the Governor /
Accused, and acting on that report a Muspida meeting was held with POLDA,
Dandim to overcome the situation.
- That in the Muspida meeting, the Governor / Accused always asked each
regional head to seek a solution to prevent further violence.
- That some people who sought refuge did so on their own and some were
helped by the authorities.
- That until the emergence of UNAMET, government was still functioning, but
after the referendum government was practically at a standstill.
- That PEMDA always adopted a neutral position to the conflict between the 2
(two) groups, and even made efforts to get the two groups together ina
meeting.
- That to Witness' testimony the Accused made no objection.
9. Witness FLORENTINO C. SARMENTO
- That Witness was a representative of KOMNAS HAM in East Timor until
September 1999 and Witness was also a member of the Commission for Peace and
Stability (KPS);
- That immediately following the announcement of the referendum by the
former President of RI, B.J. Habibie on January 27, 1999 at midnight, the
high spirits and euphoria that resulted were already leading to chaos and
all the laws of the Republic were considered invalid in East Timor;
- That since the announcement by the RI President, BJ Habibie, that the East
Timor issue was to be resolved through a referendum, government in East
Timor was effectively unable to carry out its duties to fulfill its
responsibilities;
- That the Governor / Accused had told Witness the referendum should not be
carried out otherwise chaos would result. That the very brief period to
prepare for a referendum, in addition to the volatile emotions of the people,
whichever side won would create a vast problem for the people;
- That as a member of KOMNAS HAM Witness was assigned by the Accused to
arrange a meeting between the two warring groups, specifically the armed
group Falintil which was in the jungle, and the armed pro Integration, in
order to refrain from violence when one side or the other won or lost in the
referendum;
- That the Accused was never granted extra authority such as ruler of a
state of civil emergency to seek settlement to issues, or held special
authority. As Regional Head lacking extra and special authority the Accused
on his own was unable to prevent the turmoil and horizontal conflict that
spread rapidly in East Timor;
- That from what Witness observed in East Timor, it was Police assisted by
TNI who worked in the field to prevent riots and rescue people, whereas
UNAMET stood back and did nothing;
- That Witness departed east Timor on September 6, 1999, at that time the
situation in East Timor was chaotic and had spread to the border, and even
into ATAMBUA;
- That looking back on the history of East Timor, the essence of the
conflict was civil war as a result of different political ideologies in
1975. That the troubles in 1999 should be linked to East Timor's history
that has been full of conflict. After 20 years the horizontal conflict in
East Timor has never been fully resolved;
- That Witness observed UNAMET demanded disarmament only from the Pro
Integration group, whereas Falantil and the Pro Independence group were not
disarmed. Yet the Commission for Peace and Stability (KPS) had agreed that
both sides should be disarmed whatever the referendum results, to avoid
destroying each other. But disarmament was not executed maximally;
- That regarding carrying of arms two groups were involved, one group living
in the jungle who did not consider themselves Indonesians, and as such
refused to surrender their arms, and the other group in urban areas, so that
security forces met with a great deal of difficulty in conducting sweeping
of arms;
- That as member of the Commission for Peace and Stability (KPS) Witness
received reports, specifically from government officials and from the Pro
Integration side who reported when their members were attacked, and these
reports were relayed to Police for further action and handling. In addition
both the Pro Independence group and the Pro Integration group reported
incidents of murder and assault, to the Commission for Peace and Stability (KPS);
- That to Witness' testimony the Accused made no objection, but wished to
add several pints, among others:
- That the International Civilian Police in collaboration with Police were
to disarm both sides, but in fact in the field only the Pro Integration
group was disarmed;
- That during the signing of the peace agreement at the house of Bishop Belo,
the Accused was present and cosigned the agreement as a witness to peace;
In considering, that in court the Accused's Legal Counsel had submitted 1 (one)
expert witness under oath according to his faith that in essence presented
the following:
Expert Witness Prof. DR. BAMBANG POERNOMO, SH
- That in light of prevailing laws regarding serious violations of human
rights and according to prevailing international standards and according to
development in science, the relationship of a superior in terms of
responsibility has always been problematic and is unending such that it must
be viewed case by case, the responsibility of subordinate and superior in
war crimes and the responsibility of the subordinate in terms of crimes
against humanity, should certainly be distinguished;
- That according to Witness there are 12 parameters that have to be met by
an Ad Hoc Human Rights Court in trying serious violations of Human Rights,
and these are:
1. A Court that is entirely ad Hoc so as not to bear the impression of being
an instrument of government;
2. Human Rights violators are Civilian and Military, individually or in a
group, not excluding the possibility of a conspiracy;
3. Charges / plaintiff may be individual or through class action, not
excluding by NGOs or community organizations;
4. The first agency for a Human Rights Court is at the High Court level, not
at each Kabupaten/ Mayoralty in the District Court;
5. KOMNAS HAM as the investigative agency for Human Rights violations
working on fact finding;
6. Law enforcement agencies and qualified legal counsel with the special
condition of extensive knowledge of human rights and with extensive
experience to understand International Law standards;
7. An understanding of the elements of human rights violations based on
legal science doctrines;
8. A balanced examination of the accuser and the accused;
9. Elaboration is needed to determine civil, administrative and criminal
sanctions, not excluding non penal sanctions;
10. The court is authorized to issue a ruling in the event that
reconciliation and truth are needed from the Commission of reconciliation
and Truth;
11. Human rights court activities / process to be in conjunction with the
Commission for Reconciliation and Truth in reflecting a two-phase justice
system;
12. Investigators, Prosecutors and Justices are Ad Hoc;
- That in the Ad Hoc Human Rights Tribunal currently underway points 1 to 5
have been met, whereas points 6 to 12 have not been met. Furthermore, the Ad
Hoc Human Rights tribunal must be accompanied by scientific justice and
precision justice so as not to fall short of national and international
expectations;
- That in further development of special cases or lex specialis,
responsibility is vicarious responsibility, whereby the superior is
responsible for the actions of the subordinate, for example, in the case of
a health care worker without a medical degree, the responsibility lies with
the doctor;
- That according to the history of criminal law, responsibility of superior
and subordinate should be determined by a Decree or specific regulation,
thus the Decree should be reviewed or the regulation reviewed to determine
the relationship between superior and subordinate;
- That in determining the presence of a violation of the law or a crime,
especially in connection with serious violation of human rights, several
instruments should be applied simultaneously, namely reconciliation,
compensation, and the limited criminal justice system. On this basis a human
rights case is created from an alternative justice process, so it is not
always similar to an ordinary crime, and if there should be a ruling for
reconciliation or compensation such as paying damages to a community, this
is possible in a human rights tribunal case;
- That in the alternative justice system, a serious human rights violation
tribunal does not inevitably conclude with a sentencing, but may be
concluded with a ruling for Reconciliation or Compensation;
- That a tribunal in a Court, including a Court for criminal or civil cases,
should always refer to new developments, and should not be only final but
could be non final. In a non final verdict, the criminal judge's sentence
could be in the form of damages, and this is a civil case provided for in
the Criminal Code;
- That further, a Tribunal need not be concluded with a sentencing but with
a ruling, as this is a tribunal in an Ad Hoc Human Rights Court, and there
is a big possibility of such a ruling, and thus the ruling could be
reconciliatory or compensatory;
- That in practice since the 1980s the rule of limited criminal justice
system was introduced, which means that a tribunal may not be influenced by
a Keppres or a Ministerial SK, and therefore the judgment is left to the
Panel of Justices, which is morally responsible, and is also determined by
the conviction of the justices during the trial;
- That a serious violation of human rights should not be directed by Article
338 KUHP and Article 340 KUHP but should be directed by Law, whether
genocide did indeed take place;
- That the first tribunal for serious violation of human rights in Indonesia
should adopt scientific justice and precise justice;
- That according to interpretation of criminal law, chaos occurs when law
enforcement can no longer be applied, for example in Aceh there is no law
enforcement but chaos in Jakarta and in Aceh are distinct, Witness himself
was unable to provide a definition;
- That the assistance of science is needed to prove if the Bupati or the
Governor may be held accountable for the criminal acts committed by others;
- That to Witness' testimony the Accused made no objection;
In considering, that in court the testimony of the Accused was heard that in
essence presented the following:
- That the Accused became Governor from 1992 to September 9, 1999, and was
terminated as Governor through a Presidential Decree in 2000. A Governor is
nominated and then elected by DPRD, and after elected is nominated to the
president, until a presidential decree is issued for appointment as Governor.
- That the Accused was appointed Governor in 1992, through SK.239/M.thn1992
signed by President Soeharto, and the second time for the period 1997 to
2000, through SK No.260/M year 1997, also signed by President Soeharto.
- That the task of Governor was to undertake government of Tk.1. The
Governor in question was a regional head, at the same time as a territorial
head. As territorial head the Governor was accountable to the president and
as regional head the Governor was accountable to DPRD Tk.I, and by law its
is stipulated that the Governor is vice president in the region in question.
- That the assembly on April 17, 1999, on the grounds of the Governor'
office, was not a PAM SWAKARSA roll-call but a PPI grand roll-call. At the
time the Accused was invited by the Bupati of Dili to attend the ceremony.
- That the Accused said to the Bupati of Dili "what is the event for, if it
is a PAM SWAKARSA event I will attend, but if it is not a PAM SWAKARSA event
as Governor I cannot inaugurate a force that opposes other forces".
- That when the Accused came to the event, the Accused saw that it was not
for PAM SWAKARSA but for PPI, and therefore the Accused refused to continue
his presence there, and also refused to give an address.
- That the refusal of the Accused was based on the principle that if the
Accused inaugurated the PPI roll-call, it would be an indication to the
public that the Accused was for the group inaugurated, and this the Accused
did not desire.
- That PAM SWAKARSA as a force existing in the community at the village
level, PAM SWAKARSA being on a par with siskamling that was applied in Java
or other places.'
- That those attending the PPI roll-call event on April 17 1999, were from 3
(three) kabupatens, namely Maliana, Liquisa, and Dili. The Accused was
unwilling to attend at the time because PPI was a military wing of one of
the contestants in the referendum, therefore if the Accused were to attend,
Accused would have been obliged to attend an event of the opposing side.
That to avoid this the Accused preferred not to attend the event.
- That as Governor the Accused had to be neutral, the Accused was cautious
about maters that could affect regional leadership. Under the May 5, 1999
agreement, the Governor or regional government, was not allowed to intervene
in referendum affairs.
- That when descending from his chambers on the 2nd floor, the Accused met
Espedito from the Public Relations Bureau. The Accused asked him which group
was holding the event, and the reply was that it was not PAM SWAKARSA, but
the Accused continued on to the tent, coincidentally none of the Muspida
were present. Subsequently the Accused left as he had to receive the foreign
minister from Northern Ireland and to host an event for the visitor in his
house. That during the luncheon the Accused was called by the Public
Relations Bureau about the incident in the house of Manuel Carascalao.
- That attending the event was not PAM SWAKARSA, but FPI members, with some
dressed in uniforms, and others wearing plain clothes, and PAM SWAKARSA
never wore uniforms.
- That at that roll-call meeting, the Accused did not see any weapons, the
Accused did see that some of the men on parade wore camouflage gear.
- That a report from the public relations bureau said there was a riot in
the house of Manuel Carascalao as a murder had taken place there. The
Accused then dispatched Kadit Sospol Colonel Samsu to check on the riot and
to coordinate with the rest of Muspida, in particular with police and ABRI
to view the incident immediately.
- That the Kadit Sospol's report that the Accused received from the Vice
Governor, stated there were fatal casualties including the son of Manuel
Carascalao. That night in his house the Accused was accosted by his
brother-in-law who said that in his house 7 people were hiding who had fled
the house of Manuel Carascalao, and the Accused told him to save them and to
report to security.
- That public order according to Law No.5 year 1974, under the Governor's
authority, the Governor said, covered the security of civilians, the
security of the cities, the security of offices, the security of the public.
- That in the Governor's office there was no hansip (civilian defense) but
there was Pamong Praja, including at PEMDA Tk.II, Pamong Praja being an
organization handled and trained by police but funded by the regional
government.
- That Hansip was under the tutelage of ABRI, the Army, which trained
civilians who assisted them in military tasks, under the police it was
called kamra. Kamra comprised civilians whose assistance was requested by
police in police tasks.
- That Kamra was recruited directly by Korem or Kodim, and after training
were handed over to police, and then trained again by police to assist in
police tasks.
- That when central government accepted the offer from the international
community to hold a referendum in East Timor one of the tasks given to PEMDA
was to provide support in expediting the referendum but PEMDA was not
allowed active participation in the referendum.
- That the Accused assembled all bupatis, Dandim, Kapolres, Kajati, Kajari,
in a meeting Muspida. In that meeting the Accused conveyed the tasks of each
Tk II body in the referendum. The Accused requested bupatis to provide
people who were prepared to assist in holding the referendum at the Tk II
level in kecamatans and villages.
- That subsequently the bupatis provided PAM SWAKARSA members in each
village to assist in the referendum and to expedite it. PAM SWAKARSA was
also prepared to go on duty at the ballots, but was rejected by UNAMET, as
UNAMET employed its own people.
- That the Accused did indeed request all bupatis to provide people for PAM
SWAKARSA and that had been executed and provided by each bupati.
- That regarding the establishment of PAM SWAKARSA, PAM SWAKARSA was already
present when the Accused was bupati, the Accused asked that the PAM SWAKARSA
established be deployed for the referendum.
- That the Accused heard from others that the roll-call ceremony was
officiated by Joao Tavares.
- That under prevailing law in Indonesia, the bupati is nominated by DPRD,
elected and nominated by DPRD Tk. II to the Governor and Governor relays the
nomination to central government namely the Minister for the Interior.
- That after a Decree was issued by the president through the Minister for
the Interior, or a Ministerial Decree, on behalf of the president the
Governor was assigned to install the bupati, and the Accused did so.
- That on April 6, 1999, the Accused was in Jakarta, the Accused heard from
the Vice Governor about the incident in Liquisa.
- That at the time the Accused told the Vice Governor to coordinate with the
security authorities to seek a way to overcome the situation and prevent it
from spreading. The Accused asked the Bupati of Liquisa to reassemble the
people whom the Accused had met in Dili.
- That the Vice Governor reported to the Accused that there was 5 (five)
casualties, and the Accused immediately ordered the bupati of Liquisa to be
summoned, and that further the Vice Governor should coordinate wth Korem and
POLDA to bring the problem under control to prevent it from spreading.
- That regarding the incident in the Dili Diocese on September 5, 1999, at
the time the Accused was in the airport, the Accused received a telephone
call from Jesimedes, a bureau chief, informing him that there had been an
attack in the Dili Diocese by the Pro Autonomy group on the anti autonomy
group. The attack led from the anti autonomy group frequently entering the
Dili port and creating problems there, and then fleeing and hiding in the
Diocese, with the pro autonomy group giving chase, and this had resulted in
a riot. It was reported that there was 1(one) casualty, the Accused happened
to be close to Major General Adam Damiri, and the Accused asked him for help
for security forces to curb the riot.
- That the Accused knew of the attack on the house of Bishop Belo on
September 6, 1999, after receiving a report over the telephone, according to
the report a certain group had attacked Bishop Belo's residence, at the time
the Accused received the report from Alberto he was at home and no one could
be dispatched, and the Accused planned to leave in the morning, but in the
morning the Accused heard that the incident had been handled by police.
- That the Accused on that day did not go directly to the crime scene
because the situation did not allow it and there was also the problem of
security, as since September 4, 1999, there was no government activity in
Dili Town, and the government's authority existed de jure but not de facto.
- That the Accused at the time acted by calling Dandim, Kapolda, Danrem,
however they were not available but were out on duty. At the time shops were
being set on fire, and the Accused was forced to turn back, and on the way
back the Accused was blocked by intoxicated men who were looting the shops.
- That people fleeing and hiding in the Governor's residence on 3 hectares
of land, numbered some 3000. The Accused coordinated with police to move
some of the refugees to POLDA.
- That following the incident on September 4, 1999, the Accused asked
security forces to prevent the riots from spreading, but they did not know
who to arrest as everything was in chaos, with people looting, pillaging and
killing, unable to be checked, and so they did nothing, intending to
investigate when it was over, but at the time the Accused was in Atambua.
- That in terms of organization the bupatis were accountable to the Accused
if APBN funds were involved, and in the case of incidents such as killings
during riots, they were to attempt to resolve the problem and report to the
Governor, but if they were unable to handle the problem they would report
and ask for help. For instance "Pak Governor, there is an incident, my
village was attacked by people from the jungle, my people have been abducted
and carried away to the jungle, please help me, pak Governor, I was not able
to deal with the problem". And then coordination would be conducted with
Korem to locate the people.
- That in the incident in Liquisa after the Accused returned from Jakarta to
Dili, there was a written report from the Bupati of Liquisa to the Accused
as Governor.
- That the Accused asked that the incident be prevented from happening gain,
and the refugee problem had been settled, with those seeking refuge in the
bupati's house and in the priory back in their respective places. In general,
those seeking refuge in the bupati's house had fled the pastor's house and
sheltered in the bupati's house.
- That on September 4, 1999 President Habibie made a speech and formally
announced that the referendum result was accepted, in East Timor this was
greeted with shock both by the victors and the defeated. The victors were
shocked and ran into the jungle, and the defeated in Dili Town were outraged.
From that time riots began to appear everywhere, and some people fired
gunshots.
- That the announcement should have been made on September 7, 1999, but the
Accused did not know why it was made on September 4, 1999.
- That people close to the Accused reported to the Accused the events in
Dili at the time of the referendum. At the time the pro autonomy group had
reported the fraud committed by UNAMET. The Accused said it was their
prerogative to protest, as Governor the Accused himself could not join the
protest, and if they had data and facts to back their claim they should
object and conduct a protest.
- That on September 3, 1999, FPDK reported to the Accused that it intended
to lodge a protest in Jakarta and they requested funds, the Accused replied
there were no funds, and at this time they should seek funds from the
respective organizations, and if available they should proceed, but most
important was to prevent conflict and turmoil, and to employ lawful means.
- That FPDK brought in witnesses from the regions to protest UNAMET, the
Accused appealed to them to use lawful channels and not to resort to
violence. Then suddenly the September 4, 1999 announcement was made, and the
protests were aborted as the referendum result had been accepted by the
president.
- That the protests from those defrauded by UNAMET had been so vigorous that
UNAMET feared it would not be able to meet their demands, and UNAMET
requested central government to move the announcement up from September 7,
1999 to September 4, 1999.
- That the organizations that were created in anticipation of the referendum
in East Timor were FPDK, BRTT from the pro autonomy contestants, and the
anti autonomy organizations were CNRT. FRETILIN, FALINTIL, and each of the
two factions set up military wings, and the Accused as Governor could not
ban them from doing so.
- That under the agreement of May 5, 1999, it was agreed to disarm the
military wings of both pro autonomy and anti autonomy organizations. But in
reality in the field, only the pro autonomy group was disarmed, while the
pro independence group was not able to be disarmed, under the excuse that
their weapons had been acquired from previous times.
- That as they were not willing to be disarmed, they were collected into 2 (two)
pockets in all of East Timor, but this was also not entirely successful, and
in fact according to reports they had received new weapons and grenades.
- That the May 5, 1999 agreement had not been implemented accordingly with
regard to disarmament, as only the pro autonomy group had surrendered their
weapons, whereas the anti autonomy group refused to do so.
- That during the ceremony in which weapons were surrendered to police by
the communities, only a few firearms were handed over, the majority of
weapons being home-made weapons and spears. The Accused as Governor may not
have succeeded in his appeal to all the people to surrender their arms in
accordance with the May 5, 1999 agreement, and it had applied only to the
pro autonomy groups, and in their case they had organizations responsible
for them, namely TNI, Police and Pemda. Whereas the pro independence group
in the jungle were protected by the international community such that they
could not be appealed to hand over their arms.
- That in the pro autonomy groups, there was no MILISI, according to some
the term MILISI was armed civilians, but then both sides had armed civilians.
- That the policy to accept the referendum result in East Timor was a
political move by central government, everything was decided by central
government but the details were broken down at Tk.I in East Timor through
the Department of the Interior, which at the time asked regional government
to accept central government policies and asked Pemda to exert maximum
efforts to remain neutral and not take the side of any one group.
- That in the acceptance of the referendum result the Accused was never
consulted regarding his willingness, and the decision was purely that of
Central Government and the UN.
- That Central Government requested the Accused as Governor to fully support
the tasks of the international community in East Timor, including providing
offices for them. The Accused offered the use of the Police Mess Hall which
had been newly built, but this was rejected. The Accused had also built a
PEMDA workshop for all its vehicles and heavy equipment but this was also
rejected, and they proceeded to find their own quarters. They came with an
authoritarian attitude.
- That under the May 5, 1991 agreement, or the Tripartite agreement, all
registration, election activities were the responsibility of the UN or
UNAMET. Pemda assisted in announcements, helped by Civilian Police, whose
task it was to help our police to safeguard the tasks of UNAMET in the
region.
- That prior to the appearance of UNAMET government was still running well,
but as soon as UNAMET arrived in Dili and officially opened its office in
Makadolo Village Dili, civil servants stopped coming to work. On the way
home from the official opening of the UNAMET office, the Accused's vehicle
was attacked by an anti Integration mob so that it was destroyed, but UNAMET
did nothing. When police set out to arrest the perpetrators they were
hindered from doing so by UNAMET, who hid them in their office.
- That there never was any document stating that Eurico Guterres was the
subordinate of the Accused, or was organizationally connected with the
Accused. PAM SWAKARSA had no direct line to the Accused, at most there was a
line with the bupati. Whereas BMD Laksaur, Mahidi were Tk.II organizations.
- That evacuation began during the Ainaro riots in early 1999, in which
bloodshed took place and the Accused attempted to get the two warring sides
together, among others by holding a traditional ceremony known as an eye for
an eye and a nose for a nose.
- That since the arrival of UNAMET, many people from Maubara and several
towns in East Timor fled in droves to Batugade. That indeed on September 4,
1999 there were fires in Dili Town. The Accused did not know which side was
causing the fires, according to reports received by the Accused, the fires
were not unintentional but as a result of looting. 30% of Dili Town was on
fire.
- That the referendum was highly controversial, when the Accused visited the
ballots to inspect the ballot sheets, the Accused observed that police could
remain only 200 M from the ballots, and the ballots were manned only by
UNAMET and its local staff.
- That the Accused made all effort to prevent riots but was unsuccessful as
the conflict areas constantly shifted. That government's authority was no
longer existing, but as a human the Accused exerted real attempts to prevent
the conflicts.
- That administratively and under prevailing rules the Accused was head of
Muspida. But every Muspida Tk I meeting did not always have to be initiated
by the Governor, the Danrem could do so as well.
- That each member of Muspida wished to prevent and control the riots, not
just the Muspida head.
- That the Accused received reports that roll-calls were held in every
kabupaten but only to secure the situation and moreover in an unofficial
capacity.
- That each organization about to be set up had to be based on a request to
the social political directorate and police. In the case of organizations
such as Mahidi, BMP, Laksaur, BRTT, following the onset of the reform era
the functions of the social political directorate had disappeared, and thus
they were set up and the Accused accepted them, and so no request submitted
by them. FPDK developed by itself and was not under the control of sospol,
and the Accused attended the inauguration of the organization.
- That East Timor was Indonesian territory but there was no recognition from
the international community to this effect. Meanwhile the conflict occurring
there could never be entirely quashed, as it appeared repeatedly.
- That regarding the incident in Liquisa according to the Kapolres' report
the perpetrators of the crime in Liquisa had all been apprehended and
investigation completed, but there was no report about whether they had been
arraigned in court. The perpetrators of the Dili incident in the house of
Manuel Carascalao were also arrested and examined by police at the request
of the Accused.
- That the Accused had asked Pangdam IX Udayana for additional security
forces to be brought into East Timor, and he had done so according to
situation and need.
- That the Accused recognized the need for additional troops, but at the
time East Timor had been intervened by the international community, and the
UN had even asked TNI to cut down its forces in East Timor, beginning in
April 1999, TNI reduced its troops in East Timor by 2 (two) vessels.
- That East Timor PEMDA, in order to settle the conflict had attempted
meetings, through a traditional ceremony involving the two sides, whereas
the Accused funded the ceremony. The ceremony involved such rites as
drinking blood, which was carried out in all kabupatens.
In considering, that in addition to the testimony of witnesses under oath
and the Accused's testimony, the Public Prosecutor submitted the following
evidence in court, among others;
a) 2 (two) pieces of cloth drapery;
b) 1 (one) pair of brown slippers;
In considering, that based on the testimony under oath of the witnesses in
connection with the testimony of the Accused and the evidence submitted, the
following facts were obtained:
- That indeed clashes and disputes that occurred from April to September
1999 in Dili East Timor were connected to the announcement by the RI
President of the provision of 2 (two) options to the people of East Timor on
January 27, 1999;
- That indeed in the long history of violence in East Timor, President BJ
Habibie wished an overall settlement for the disputing people of East Timor,
and as such RI President BJ Habibie announced the provision of 2 (two)
options to the people of East Timor, comprising:
1. Option I:Granting special autonomy to the people of East Timor; if the
East Timor people chose this option I, East Timor would remain part of the
Republic of Indonesia.
2. Option II:Rejection of special autonomy, if this option II was chosen,
East Timor would no longer be part of RI.
- That the offer of an overall solution to the East Timor issue through
these two options was responded by the UN, and subsequently an agreement was
reached between the RI and Portuguese governments under the aegis of UN,
which was signed on May 5, 1999;
- That it may be stated that the referendum held in East Timor stemmed from
the agreement initiated by the UN with the governments of RI and Portugal on
05 May 1999 and signed in New York, or the "New York Agreement" between
Indonesia, Portugal and UN that was known as the Tripartite agreement;
- That indeed the agreement for security arrangements between Indonesia,
Portugal and the UN Secretary Genera, comprised:
1. A climate of security without violence or other forms of intimidation as
a prerequisite for the implementation of a free and just referendum in East
Timor. Responsibility for ensuring such a climate and for maintaining law
and order was generally charged to feasible Indonesian security authorities.
Full neutrality by TNI and Police was crucial in this case;
2. The Commission for Peace and Stability (KPS) established in Dili on April
21, 1999 had to function immediately. The Commission for Peace and Stability
(KPS) in collaboration with UN would prepare the guidelines for behavior in
the periods before and after consultations, that had to be complied with by
all sides, ensure disarmament, and take necessary measures to achieve
disarmament;
3. Before commencing registration, the Secretary general would determine
through objective assessment, that a security situation existed that was
necessary for the peaceful implementation of a referendum;
4. Only police would be responsible for the maintenance of law and order;
the Secretary General after receiving the necessary mandate would provide a
number of civilian police who would serve as advisers for the Indonesian
police in executing their tasks, and during the referendum, to safeguard the
ballot sheets and access to the ballots;
- That indeed there were 2 (two) questions submitted in the ballot sheet for
the referendum of the East Timor people, namely:
1. Do you accept special autonomy for East Timor within the Union State of
the Republic of Indonesia.
2. Do you reject special autonomy for East Timor that will result in the
separation of East Timor from Indonesia.
- That indeed The East Timorese who were eligible to cast their votes were
those of age 17 (seventeen) years and over, including:
a) People born in East Timor.
b) People born outside East Timor with at least one parent born in East
Timor.
c) People whose spouse comes into one of the above categories.
- That indeed the stages of the referendum process were arranged in the
following timeline:
Operations planning / presentation May 10 - June 15
Dissemination program to the public May 10 - August 05
Preparation and registration June 13 - July 17
Announcement of list of voters and submittal of
objections and grievances July 18 - July 23
Political campaigning July 20 - August 05
Quiet period August 06 -07
Ballot casting August 30
- That indeed in the referendum process Indonesia and Portugal were entitled
to dispatch representatives to observe the entire stages of the referendum
both inside and outside East Timor.
- That indeed International Observers would be allowed to monitor the
referendum under the rules drawn up by the UN.
- That indeed Indonesian authorities would guarantee a sage climate for a
just and free referendum and would be responsible for security and the
safety of UN personnel.
- That indeed a number of UN officers would be deployed to ensure the
security and safety of UN personnel and property. A number of international
civilian police would be in East Timor as advisers to the Indonesian police
throughout the referendum stages, to monitor the escorting of ballot sheets
and ballot boxes into and out of the ballot sites;
- That indeed the TNI Commander issued an instruction that in response to
the Tripartite agreement of May 5, 1999, the Indonesian government in this
case RI police were charged with responsibility to enforce the law
throughout the implementation of the referendum;
- That indeed under Tripartite agreement TNI was not allowed to take action
in any way, and the TNI Commander would redeploy some TNI troops in East
Timor to their respective stations, TNI personnel were obliged to remain in
military installations, and were not allowed outside their barracks armed;
- That indeed to implement the Tripartite agreement, the ABRI Commander at
the time determined the need to reinforce POLDA in East Timor by deploying
30 SSK from Java, operational vehicles, and assisting personnel comprised of
officers who had served in the UN, from the Army, Navy and Police, to POLDA
East Timor in order that POLDA East Timor could execute its tasks maximally
and the control of the 30 SSK would lie in the hands of Kapolda East Timor;
- That indeed following the announcement of the provision of 2 (two) options
by RI President BJ Habibie, pressure, intimidation, assaults on the pro
integration people surfaced.
- That indeed nearing the incidents of April 1999, intelligence was
collected every day, every week, every month, on incidents in each Kabupaten
in East Timor;
- That indeed on April 2 and 6, 1999, an attack was launched by the pro
integration group on the pro independence group which was taking refuge in
Liquisa church, and this attack was linked to clashes between the
integration group and the pro independence group on April 3 and 4, 1999,
when the Pro Independence group set fire to some houses owned by the Pro
Integration group;
- That indeed the witness Leoneto Martin as Bupati Tk II of Liquisa had
reported the clash, including the number of dead and wounded, to the Accused;
- That indeed the witness Joao Fereira at approximately 13:00 WITA witnessed
members of Kodim 168 Liquisa conduct an attack along with TNI personnel in
civilian attire and MILISI, into the Liquisa Church;
- That indeed although there were TNI and Police standing at ease in the
vicinity of the Liquisa Church compound, when the attack took place they did
nothing;
- That indeed upon hearing gunshots witness Joao Fereira took fright, and
when thousands of attackers entered the Liquisa compound, witness Joao
Fereira sustained hacking wounds all over his body, and other victims
wounded were: Da Costa, Augustino, A. Dos Santos, Joninopo, Narsizo, Manuel
Liboa, Victor, Anuko, and there were 9 (nine) dead;
- That indeed Jose Ramos and Tome Diogo, members of Liquisa Kodim, carried
arms into the church compound and fired shots;
- That indeed the witness Emilio Barito who sought refuge inside Liquisa
Church saw and heard Tome Diogo, a TNI member, say the words "attack, attack,
kill them, attack them"; among those attacking were soldiers wearing
civilian attire;
- That witness saw that 9 (nine) people had died;
- That indeed Danrem Col. TNI TONO SURATMAN, Kapolda TIM-TIM Colonel Pol.
Timbul Silaen along with Bishop Belo visited the scene of the incident in
Liquisa Church;
- That indeed on April 6, 1999, an attack was launched on the Dili Diocese,
resulting in dead and wounded casualties;
- That indeed on April 6, 1999 The Accused was in Jakarta when the refugees
inside Liquisa Church were attacked and the Accused received a report from
the Vice Governor on the incident including that there were dead and wounded
casualties;
- That indeed on April 17, 1999, a grand roll-call was held on the grounds
of the East Timorese Governor's office that was attended by over 6,000 (six
thousand) people, from kabubatens across East Timor. Officials attending the
event included: Muspida Tk.I Tim-Tim the Governor of Tim-Tim (the Accused),
speaker of DPRD Tk I Tim-Tim, Bupati of Dili, Mayor of Dili, representatives
from Polda and Danrem;
- That indeed Bupati of Dili DOMINGGUS M.D.SOARES had reported to the
Accused the incident of April 17, 1999 that occurred in the house of Manuel
Carascalao;
- That indeed the Accused only briefly attended the grand roll-call as he
had to receive the Foreign Minister of Northern Ireland. That when the
Accused was invited to address the grand roll-call the Accused refused,
because the grand roll-call was for PPI and not PAM SWAKARSA, whereas the
Governor / Accused had to remain neutral;
- That indeed the grand roll-call was officiated by PPI Commander Joao
Tavares, who also delivered the opening address, urging the people present
to win the integration process and remain part of the territory of the Union
State of the Republic of Indonesia;
- That indeed in addition to PPI Commander Joao Tavares, Eurico Guteres
addressed the thousands of people assembled;
- That when the grand roll-call on the grounds of the Governor's office was
over, during a procession of vehicles by the pro integration mass past the
residence of Manuel Carascalao, an altercation and a verbal match broke out
between the pro integration group and the pro independence group taking
refuge in the residence of Manuel Carascalao, and this altercation caused
the pro integration group to attack the pro independence group, leading to
17 people dead and wounded. That one of the twelve fatal casualties was
Manuelito Carascalao, the son of Manuel Carascalao;
- That indeed the participants of the grand roll-call on April 17, 1999
carried firearms, home-made weapons, and sharp weapons when they attacked
the house of Manuel Carascalao;
- That indeed the residence of Manuel Carascalao was located on Jalan dokter
Antonio De Carvalio No.13, which was at a distance of approximately 200
meters from the East Timor Governor's office where the grand roll-call was
held;
- That indeed the witness Joko Sugianto on April 17, 1999 was in Dili, and
went directly to see the casualties in Dili hospital, and after a count the
number of casualties was 17 (seventeen) dead and 1 (one) wounded;
- That indeed when the witness JOKO SUGIANTO and his Team were at the Hotel
Mahkota, witness happened to see a rally that used vehicles and where
firearms and ordinary weapons were carried, and witness learned that a grand
roll-call had taken place at the Governor's office;
- That indeed in April 1999 violence escalated across all of East Timor and
this was a source of concern for the RI Government and East Timor figures,
and became the serious focus of the United Nations (UN);
- That indeed on April 21, 1999 a meeting was held between the 2 (two)
contending groups at the home of Bishop Belo, attended by figures from the
contending sides and government officials, including: from CNRT and Falintil
Xanana Gusmao and Laindro Issac were present, from Pemda Tk I Abilio Osorio
Soares / the Accused and Armindo Soares Marianno as Speaker of DPRD Tk I
Tim-Tim were present, while TNI and Polri were represented by Col.Inf. Tono
Suratman (Danrem) and Police Colonel Timbul Silaen and witnessed by TNI
General Wiranto (Menhankam / Pangab ABRI), Bishop Belo, Bishop Basilio
Dasimento, Governor Abilio Soares / the Accused;
- That indeed as a result of this meeting a peace accord was signed between
the two contending sides and in realization of this accord, security forces
were to conduct sweepings to disarm the two contending sides;
- That indeed the Commission for Peace and Stability (KPS) was formed in
Dili on April 21, 1999;
- That indeed to June 17 and 18, 1999 the Commission for Peace and Stability
(KPS) was running inadequately because Xanana Gusmao from the independence
group was never able to attend;
- That indeed on May 5 1999, the Administration in East Timor was still
functioning and the courts were open;
- That indeed after the Tripartite agreement of May 5, 1999, was signed by
the Governments of Indonesia and Portugal and the UN, in implementation of
the agreement the Accused as Governor of East Timor called a meeting of the
13 (thirteen) Bupatis from across East Timor to prepare for the referendum.
That the Accused's briefing during the meeting directed the Bupatis to
disseminate and expedite the results of the agreement;
- That indeed with the escalating violence in East Timor the Accused
requested all Bupatis to reactivate and effectuate PAM SWAKARSA, and the
Accused also instructed that all PAM SWAKARSA members be paid compensation
toward their welfare in accordance with the respective capacity of each
Pemda Tk II;
- That indeed PAM SWAKARSA was a community organization aimed at securing
each of the regions, but after the situation became heated eventually the
Pro Independence people withdrew from PAM SWAKARSA as PAM SWAKARSA leaned
more toward the Pro Integration ideology;
- That indeed eventually PAM SWAKARSA became part of Government, striving
for Pro Integration in line with official policy;
- That indeed Aitarak, Besi Merah Putih, Laksaur, were PAM SWAKARSA;
- That indeed in realizing the Accused's request, Pemda Tk II Kabipaten
Covalima provided assistance to PAMA SWAKARSA amounting to Rp.150,000.-/
person, the payment was compensation for having to work away from their
fields to become Pam Swakarsa members;
- That indeed funding of the assistance to PAM SWAKARSA members was obtained
from Pemda budget after seeking approval from the respective DPRD Tk II;
- That indeed Pemda Tk II Kabupaten Alieu provided incentive payments to PAM
SWAKARSA members to the sum of Rp.100,000.- / person;
- That in Dili town there were 1000 PAM SWAKARSA members from 26 villages,
and with the approval of DPRD Tk II they were paid incentives amounting to
Rp.150,000.- (one hundred fifty thousand ) funded by APBD.
- That indeed KAMRA was the responsibility of Police, WANRA the
responsibility of Kodim, PAM SWAKARSA the responsibility of Government to
safeguard the community;
- That indeed the Pro Integration troops were later known as PAM SWAKARSA
comprising AITARAK, BMP, BRTT;
- That indeed Bupati Tk II Covalima Colonel Herman Sedyono in undertaking
his duties routinely reported to the Accused as his superior, in the channel
of Regional Head, and what was reported to the Accused was any notable
incident occurring in Kabupaten Covalima;
- That indeed Bupati Tk II Dili Dominggus M.D.Soares submitted periodical
and annual reports to the Accused, but in the event of very important
matters, the report was delivered directly or he was summoned by the Accused;
- That indeed on September 5, 1999, at 19:30 wita, Directional Command (Kodal)
was transferred from Police to TNI. The transfer of Kodal was made in light
of the chaotic situation occurring everywhere, in particular in Dili town
where hundreds of thousands of refugees were concentrated, with the
situation becoming highly destructive, and the administration ceasing to
function normally;
- That indeed following the transfer of KODAL owing to the highly chaotic
condition, residents of East Timor who wished to evacuate East Timor were
provided the opportunity to do so;
- That indeed the transfer of KODAL by TNI had the following tasks and
authority:
1) to safeguard all UNAMET personnel in East Timor who numbered some 2000;
2) to take immediate action against to prevent large-scale clashes;
3) to secure the hundreds of vital assets across all of East Timor;
- That indeed on August 30 1999 the people of East Timor participated in a
referendum which result was announced by UNAMET on September 4, 1999 with
the following composition:
- The majority of votes went to the option to reject special autonomy and
thus to separate from the Indonesian Republic, at 78.5% (334,580);
- Votes for the special autonomy option, at 21% (94,338);
- Votes declared invalid, at 1.6% (7,985);
- That indeed on September 4, 1999, the Indonesian President, B.J. Habibie
officially announced that the Indonesian Government accepted the results of
the referendum announced by UNAMET (UN);
- That indeed the referendum results were announced by UNAMET on September
4, 1999, at 9:15 Wita, thereafter the pro independence people were overjoyed
and clamored and celebrated, inciting the pro integration group to anger and
retaliation through violence toward the pro independence group;
- That indeed the entire implementation of the referendum, from registration,
ballot casting, collection of ballot boxes to ballot counting was entirely
undertaken by UNAMET, whereas the Commission for Peace and Stability (KPS)
merely monitored the presence of any human rights violation;
- That indeed when the ballot count was announced, thousands of pro
integration people fled and many cried, asking "we are already free, why do
we want to be free again", and after the referendum results were announced
widespread violence broke out across all East Timor, and a scorched earth
policy was carried out on residents' houses, office buildings, and shops
were looted, creating extraordinary fear among the people;
- That indeed the day after the announcement of the referendum results, on
September 5, 1999 riots broke out, and the TNI Commander and his staff as
well as several relevant officials departed immediately for East Timor to
bring together once again pro Integration and pro Independence figures to
accept the referendum results announced the day before and to disseminate
these results to all supporters of both sides, in order to fully recognize
that the referendum result was the choice of the people of East Timor and
for the future of East Timor;
- That indeed on September 6, 1999, clashes occurred between pro integration
and pro independence masses in Suai that resulted in 27 (twenty seven)
deaths, including 17 (seventeen) men, and 10 (ten) women, one of them a
small child;
- That indeed Brimob Platoon Commander in SUAI, Lettu Pol. Soni Sanjaya
witnessed fires in the SUAI Church compound and at the time of the attack by
the Pro Integration group, witness observed that some used Portuguese-made
firearms and home-made weapons;
- That indeed witness Lettu Pol. Soni Sanjaya was highly moved when he saw
among the dead bodies, a dead woman in distressing condition embracing a
small child, also dead;
- That when the victims were about to be buried 3 (three) of them were
identified as pastors, namely Pastor Hilario, Pastor Fransisco, and another
Pastor who was Javanese;
- That indeed the bodies were transported using the priory's utility vehicle,
a panther, and a mikrolet, for burial by Witness Lettu TNI Sugito, the
Danramil of Suai, along with witnesses Pranoto and several members of the
community, at the Metamao beach which was on NTT territory;
- That indeed the pro independence group which had taken refuge in the Suai
church numbered in the thousands, and when attacked by the pro integration
group, they were able to be moved to the Bupati's office, the Kodim office,
the Polres office and other safe places;
- That indeed on September 6, 1999, the Pro Integration group attacked the
residence of Bishop Belo, where a group of Pro Independence people were
seeking refuge and shelter. The attack was carried out because Bishop Belo
was perceived as not being neutral and pro independence. That the attack by
the Pro Integration group resulted in the death of a small child and the
rear part of Bishop Belo's house set on fire;
- That indeed in light of the critical, oppressive and horrendous conflict,
and the rising number of casualties that drew the condemnation of the
international community and the United Nations (UN), President BJ. Habibie
then imposed martial law on September 7, 1999, in order to establish firm
law enforcement to bring the situation under control and prevent wider
conflict, and Major General Kiki Syahnakri was appointed Martial Law
Commander to overcome the situation;
- That indeed with the shift from Kodal to Martial Law, the conflict
handling in East Timor was effectively taken over by the martial law command.
With the imposition of martial law, all military apparatus was employed
using the existing legal structure. That another consideration for the
imposition of martial law was the condition of chaos and the breakdown of
pemda administration;
- That indeed UNAMET had committed fraud, since beginning from recruitment
of local staff, selection of witnesses for the ballots during the referendum,
to ballot counting, the pro independence group was favored, whereas
witnesses from the Pro Integration group were rejected and were never
involved by UNAMET in the implementation of the referendum nor in the ballot
count, in addition to which during the campaigning period UNAMET supported
the 2nd option;
- That indeed the fraud committed by UNAMET was reported to the Electoral
Commission whose members comprised judges from South Korea, South Africa,
and Ireland. That in addition to the Electoral Commission, the Pro
Integration also submitted a report to the Department of Foreign Affairs,
and dispatched a representative, Dominggus M.D. Soares to deliver a protest
to the UN representative in Jakarta;
- That indeed the groups existing in East Timor consisted of:
Pro Integration Group:
§ In Kabupaten Covalima the following organizations were present:
- PAM SWAKARSA
- FPDK (United Forum for Democracy and Justice)
- BRTT (East Timor People's Front)
- MAHIDI (Life and Death for Indonesia)
- LAKSAUR
§ In Kabupaten Liquisa:
- PAM SWAKARSA
- FPDK (United Forum for Democracy and Justice)
- BRTT (East Timor People's Front)
- BMP (Red and White Iron)
§ In Kabupaten and Administrative Town of Dili:
- PAM SWAKARSA
- AITARAK
- Pejuang Pro Integrasi
- MILISI
- FPDK, BRTT
- BMP
- Oan Kibur Ba Damai
- Liquisa Besi Merah Putih
- Saka Ermera Darah Merah Putih
- MAHIDI
And the Pro Independence groups CNRT consisted of Clandestin, Vitun,
Forsareptil, Falintil;
- That indeed through Presidential Decree SK Presiden RI No.260/M year 1997,
the Accused was appointed Governor of East Timor and the last position held
by the Accused was Governor, which ended on September 9, 1999, when East
Timor was declared seceded from the Union State of the Republic of Indonesia;
- That indeed the task of the Accused as Governor was to undertake the
administration of East Timor at the Tk I level, the Accused was Regional
Head and also Territorial Head accountable to the President, and as Regional
Head / Governor the Accused was accountable to DPRD;
- That indeed the Accused took part in establishing, and facilitated and
supported the establishment of PAM SWAKARSA at each Kabupaten, and the
Accused even instructed the reactivation of PAM SWAKARSA;
- That the functional relationship between PANGDAM and GOVERNOR was merely
limited to coordination. That PANGDAM Major General ADAM R. DAMIRI always
received reports from the DANREM on any notable incident in the territory of
East Timor, the report was written as a daily situational report;
- That indeed PANGDAM Major General ADAM R. DAMIRI continued to coordinate
with the Accused on September 5, 1999 and September 7, 1999, during meetings
at the East Timorese Governor's Office;
- That indeed in the acceptance of the referendum the Accused and the people
of East Timor were never consulted and involved by Central government, that
the decision was made exclusively by Central Government and the UN;
- That indeed as a result of the attack launched by the Pro Integration
Group on the Pro Independence Group, the majority of casualties were
civilians, women and children;
- That indeed the UN had approved the entry of Interfet forces into the
territory of East Timor;
In considering, that before replying to the Plea from the Accused and his
Legal Counsel, the Panel first set forth the legal principles that form the
basis for each Court ruling of a criminal case as follows:
Law No. 14 Year 1970: concerning basic concepts of Judicial Authority;
Article 1: Judicial Authority is the authority of a free state to conduct
judicature in order to uphold the law and justice based on Pancasila, for
the implementation of the Republic of Indonesia;
Article 4 (3): All intervention in judicial matters by other parties outside
the Judicial authority is prohibited, except in cases stipulated in the
Constitution;
Article 5 (1): No individual may be convicted unless the Court through valid
evidence by Law finds that an individual who is deemed accountable, is
guilty of the charges laid against him;
In considering, that henceforth in the trial of this case of serious human
rights violations the Panel needs to present several general principles of
international law in relation to universal crimes against humanity as
follows:
- that no one individual is above the law, that the execution of
responsibility is assured and that none can escape the law for crimes
committed in the past or in the future;
- that crimes against humanity, war crimes, and genocide are hostis humanis
generis (the common enemy of man), that are included in international crimes,
based on this principle may not be used to free the perpetrator of an
international criminal offense from prosecution and punishment;
- that crime against humanity has become part of general legal principles
recognized by a community of nations, that violence by commission or
omission may be charged retroactively;
In considering, that we should realize that as creatures of God the Greatest
Creator, without exception we all have limitations, in our capacity to seek
truth and justice, for indeed true and essential truth and justice lie only
with the One God, in accordance with the heading of every Court verdict "For
Justice Based On Belief in the One God"
In considering, that based on all the considerations above, in the end the
Panel will have to issue a ruling that is truly deemed to be just by all
parties in upholding the rule of law in the Republic of Indonesia;
In considering, that after examining carefully and thoroughly the accusation
document, witnesses' testimony, the Accused's testimony, and other
instruments of evidence submitted by the Ad Hoc Public Prosecutor and the
Accused and his Legal Counsel, to the charging document, plea, replication,
and rejoinder submitted by the respective parties, therefore now Panel shall
consider all this with care;
In considering, that the Accused and his Legal Counsel comprising OC.Kaligis
SH, et al, have submitted their respective defense that essentially contains
the following:
A. Defense By Legal Counsel:
In considering, that Legal Counsel is of the opinion that UNAMET in
executing its duties was proved not to be neutral through indications of its
obvious partiality to the Pro Independence group, and the fraud committed
were many and outstanding.
In considering, that on the fraudulency of UNAMET as submitted by Legal
Counsel Panel has considered as follows: that UNAMET fraud in the
preparation and implementation of the Referendum does not form grounds to
eliminate violation of law. The various fraudulent acts by UNAMET cannot be
used as grounds to commit various acts against the law in the form of murder
and cruelty to innocent civilians.
In considering, that the issue of Primary Offences in the Principle of
Legality and Criminal Accountability submitted by Legal Counsel as
stipulated in Article 43 verses (1) and (2) Law No.26 year 2000 concerning
Human Rights Court, the Panel of Justices is of the opinion that: the matter
was considered in the Preliminary Ruling by the Panel of Justices No. 01/Pid.HAM/Ad.Hoc/2002/PN.Jkt.Pst
dated April 4, 2002, and will be clarified further in formulating the legal
consideration.
In considering, that Legal Counsel in its defense stated that the trial
against the Accused was in violation to Article 24 Rome Statute of
International Criminal Court that clearly prohibits the application of the
retroactive principle. The Panel of Justices is of the opinion that this
principle applies to crimes committed after ICC took effect and not to
crimes before ICC took effect. Referring to prior trials, from Nurenberg to
ICTR and ICTY, deviation of the non-retroactive principle was taken for the
sake of achieving justice for various crimes that were committed in the past.
Analysis of facts and evidence was basically as follows:
- that the Accused had never ordered violence to be committed, indeed he had
attempted to prevent bloodshed and to implement the referendum to the best
of his ability;
- that the Accused had attempted to socialize the referendum to ensure it
would proceed well;
- that the Accused always took measures to build East Timor and forget the
past;
- that the Accused's life was threatened when he was invited to the official
opening of the UNAMET office;
- that the Accused had ordered to expedite the referendum for the nation's
sake, but since before the referendum there were fraudulent acts in which
all of Governor's opinions were rejected;
- that the Accused did not establish PAM SWAKARSA, as PAM SWAKARSA was
appointed based on the Bupati's Decree;
- that the Accused had taken preventive and persuasive measures in the
Liquisa incident maximally and in an institutional manner;
- that there was no rule that the Governor had to visit a crime scene, as
this was the duty of Police to investigate, and there was no obligation for
investigators to report every criminal act to the Governor;
- that nearing the referendum the Accused directed refugees not to leave
their homes because there was police to maintain security;
- that the Accused had held meetings with Muspida including Bupatis, Kapolda,
Dandim, Kapolres, Danrem, to ask that reconciliation be attempted between
the contending sides to avoid conflict;
- that since the announcement of the referendum results, the situation had
turned into chaos, and all prevailing rules were no longer valid;
- that since it was announced that a referendum was to be held, Government
in East Timor was no longer functioning.
On Analysis of Evidence:
- that the witnesses heard in court were not confronted with the evidence;
- that the evidence was never shown to the Accused;
In considering, that the procedure for obtaining and storing evidence was
indeed not in accordance with Article 130 verse (1) KUHAP, but the Panel
believes that the actions by the Examining Team were adequate given the
circumstances that did not allow the proper procedures to be followed.
Concerning examination of victim witness violating due process
- that under the terms of Article 60 160 verse (1) KUHAP, the first
witnesses to be heard are victims, but in this trial victim witnesses were
heard only after all witnesses a charge were examined;
In considering, that Legal Counsel in its defense contended whether dead and
wounded victims were the victims of the killings and assault committed by
Bupati KDH TkII Liquisa and Bupati KDH TkII Covalima or by Eurico Gutteres.
No witness had seen them (Bupatis and Eurico Gutteres) commit killing and or
assault therefore the Accused as East Timor Governor KDH TkI could not be
held accountable, The Panel of Justices believes that the Bupatis need not
have been the parties that directly committed the killings and or assaults
but are the parties that may be held accountable for the events that
occurred at the time, as superiors responsible for the actions of their
subordinates.
In considering, that concerning the objection of Legal Counsel that states
that the Ad Hoc Public Prosecutor in formulating the elements of accusations
under Article 42 verse 2 letters a and b only generally studied the elements
of criminal acts thus rendering the accusations inappropriate and inaccurate
for application to serious human rights violations as charged, also Public
Prosecutor did not describe clearly and carefully what was meant by
widespread and systematic attack, much less prove the widespread and
systematic attack. The Panel of Justices believes that what the Accused's
Legal Counsel has set forth is true. Nevertheless, the Panel of Justices
will consider the matter in the consideration of the elements of the offence
charged to the Accused.
In considering, that the Legal Counsel Team has stated that examination of
victim witnesses violated due process, the Panel believes that the matter is
not a violation of principles of proceedings and does not result in
invalidation, in light of the trial's time constraints and the difficulty of
presenting the victim witnesses who are residing outside Indonesia.
B. Plea by the Accused
- that the Accused's defense memorandum headed: "The most difficult days of
becoming an Indonesian have passed and my loyalty to my choice has never
abated….";
- that the violence that took place in East Timor continuously and at length,
had caused the people of East Timor to face difficulties creating a
civilized structure of peace and harmony;
- that the conflict that took place was influenced by a hegemony on an
immeasurable and unfathomable level of dominance;
- that this situation has caused the East Timorese individual to constantly
strive to establish his existence by various means, and frequently to
achieve political ends the parties directly involved in the dispute have
opted to employ violence;
- that the contentions and conflicts were difficult to reconcile, namely:
1. conflict and rivalry between the old parties, namely: UDT, FRETILIN,
APODETI, KOTA, and TRABALHISTA.
2. rivalry and conflict between the pro Indonesia group and the anti
Integration group.
3. rivalry and conflict between the pro Indonesia group and the pro
Portuguese group.
4. between the Meztico (mixed-breed) community and the indigenous community;
5. rivalry and recrimination between the Kaladi people (who reside in the
western part of East Timor) and the Viraku people (who reside in the eastern
part).
6. rivalry between the rich and the poor, the educated and the uneducated.
7. rivalry between the pro autonomy community and the pro independence
community (this dichotomy appeared following the May 5 agreement in New York
on the referendum).
- that this political conflict and rivalry have been the force behind
horizontal conflicts in several decades;
- that in the period of civil war, from August 1975 to February 1976, over
60,000 civilians have fallen victim to the viciousness of Fretilin, with the
majority of victims composed of women and children, while influential
executives, followers and sympathizers of non fretilin parties were executed
en masse without regard to humanity; which was never widely exposed either
nationally, regionally or internationally;
- that efforts were made to create peace in East Timor, among others through:
attempting to establish followers and executives of the Apodeti party as
neutral to involve them in humane tasks; ending latent hostilities;
employing Fretilin followers in civil service structures and assigning
capable people to political positions, attempting reconciliation,
establishing a "Union of Three" government, restoring Dati I and II
leadership to East Timorese civilians; striving for special autonomy for
East Timor, seeking support from Ambassadors of friendly countries, etc.;
- that the plan to implement referendum would only serve to bring back
former differences, whereas those differences had nearly disappeared with
time;
- that the Tripartite agreement of May 5, 1999, had trapped the people in a
mire of different political ideologies, and created open conflict;
- that following the Tripartite agreement the political nuance began to be
uneven, owing to the euphoria of the pro independence group, and through
CNRT demonstrative acts were committed such as abuse, expulsion and even
terror, abduction and murder (specifically toward teachers and doctors,
traders, transmigrants, everyone else that seemed Indonesian);
- that to restore the balance, PAM SWAKARSA needed to be reactivated with
funding through the respective APBD in the regions;
- that the Accused took the initiative to form Klibur Oan Timor Ba Damai
that means Association of Peace Loving Children of East Timor;
- that based on the Public Prosecutor's charges, the Accused is of the
opinion that this trial is not independent, filled with intervention from
extra judiciary elements and is apparently enforced, and has overturned
justice among the people of Indonesia;
- that as an Indonesian citizen who strove to gain citizenship through
sacrifice, tears, worldly goods, and self-respect, is not deserving of such
a trial based on a legal system still premature and apparently enforced as
it dismisses the principle of retroactivity, which runs counter to the
Indonesian constitution;
- that de facto, since the appearance of UNAMET, the Accused is likened to a
powerless ruler, as all affairs were taken over by UNAMET;
- that UNAMET in conducting its tasks as executor and director of the
referendum had committed discrimination and fraud;
- that UNAMET should have anticipated the consequences of accelerating
announcement of referendum results among the victors and the defeated;
- that the referendum has brought East Timor back to a former situation of
division;
- that the Accused pins his hopes on the Panel of Justices as the last
bastion of justice, truth and endeavor to maintain the nation's self-respect
and dignity, to side with the oppressed and persecuted that were never
perceived as such by the advocates of human rights, owing to being absorbed
in a democracy that is biased, narrow, and tendentious.
In considering, that to the Accused's defense the Panel believes that the
matter shall be deliberated in the legal consideration of the elements
charged.
C. Concerning the Public Prosecutor's Replicate:
In considering, that the Public Prosecutor has submitted a replicate to the
defense memorandum by the Accused's Legal Counsel and the Accused himself;
In considering, that the Public Prosecutor's replicate is merely a
repetition of what was contained in his charges;
In considering, that as such the deliberation of the Panel remains the same
as the previous deliberation to the charging document;
D. Concerning the Rejoinder of the Accused's Legal Counsel:
In considering, that the Accused's Legal Counsel has submitted a rejoinder
that essentially is as follows:
- that the principle of legality is the cornerstone of the primacy of
criminal law, that is laden with recognition of legal certainty;
- that the implication of the principle of legality is protection against
arbitrary charges and arrest to an individual by the authorities;
- that the principle of legality is universal, and in the science of law,
doctrines and jurisprudence contains:
i. no crime is established without prior legislation;
ii. prohibition of analogies;
iii. prohibition of retroactivity of a Law or known as prohibition against
the retroactivity principle;
- that the Accused's Legal Counsel set forth concerning the principle of
retroactivity: a historical approach and comparisons;
- that in its response and juridical analysis were proposed Article 28
letter I (Amendment) 1945 Constitution, Article 24 (1) & (2) Rome Statute,
and therefore the question arises as to why Article 42 verse 2 a and b Law
No. 26 year 2000 was forced into this case;
- that the Accused's Legal Counsel objects to the application of the
principle of retroactivity if its is applied;
- that there are deficiencies in the charges:
a) as the Ad Hoc Public Prosecutor has adopted the retroactivity principle,
that should be linked to Article 43 verse 1 Law No.26 year 2000;
b) the charges were not linked to Article 55 Criminal Code;
c) as charges were linked to Article 9 letter a, therefore the public
Prosecutor should set forth Article 340 Criminal Code
- that further, the Accused's Legal Counsel Team had described or focused on
the facts set forth in the defense memorandum;
- that the Accused's Legal Counsel Team read out and appended a letter from
Kay Rala Xanana Gusmao, President of the Democratic Republic of East Timor,
26 July 2002;
In considering, that on the Rejoinder by the Accused's Legal Counsel the
Panel will deliberate in the legal consideration of the elements charged;
D. Concerning the Accused's Rejoinder, that in essence states:
- that the conflict that took place was a horizontal conflict stemming from
different political ideologies, and not crimes against humanity resulting
from armed conflict;
- that the casualties resulted from mass conflicts triggered by the same
different political ideologies;
- that the Ad Hoc Public Prosecutor in constructing the crimes to maintain
his charges had reversed the facts disclosed in court, and indeed blatantly
reversed facts or erroneously sequenced the elements of crime;
- that the Accused rejects the charge stating that PPI and all its men were
the subordinates, or an organ formed at the suggestion or appeal, of the
Accused as Governor, for when the group of the Governor's extended family
was about to leave their home-town, it was blocked in a vicious manner
accompanied with profanity by BMP members, and was only allowed to go on its
way after producing a travel pass signed by PPI Deputy Commander, Eurico
Gutteres.
In considering, that on the Accused's rejoinder the Panel of Justices will
deliberate in the discussion of the elements of the Article the Accused is
charged with;
In considering, that in order to establish that a person was proved to have
committed a crime, all elements of the crime charged to the Accused must be
proved, therefore the next consideration of the Ad Hoc Human Rights Tribunal
is whether with the facts above proved, all elements of the crimes charged
to the Accused have been proved as well;
In considering, that before setting forth the elements of the crimes as set
forth in the Public Prosecutor's charges, the Panel of Justices believes
that 2 basic issues should first be set forth, namely:
1. concerning the application of the retroactive principle;
2. concerning the relevancy of international law principles in the case of
serious violation of human rights in East Timor;
In considering, that in order to answer the above problems, the Panel shall
set forth several views from renown scholars in their most recent studies,
in relation to human rights tribunals;
Concerning the application of the retroactive principle:
In considering, that the prohibition of retroactive law (ex facto) is a
basic right that is a non derogable right, as stipulated in Article 28 (i)
2nd Amendment 1945 Constitution and Article 4 Law No.39 year 1999 concerning
Human Rights, is universal and is derived from Article 11 of the Universal
Declaration of Human Rights. In trails that discussed the draft of this
Article 11, which reads:
It states that the prohibition shall not prejudice the trial and punishment
of any person for any act or omission which, at the time it was committed,
was criminal according to general principles of law recognized by the
community of nations.
The above provision was later expressed in Article 15 verse (2) of the
International Covenant on Civil and Political Rights / ICCPR. The same is
also found in Article 7 verse (2) of the European Convention on Human Rights
/ EHCR. The inclusion of the provision in the two instruments above was
intended to remove nay doubt as to the legality of the rulings of the
Nuremberg and Tokyo Tribunals, which some consider as the application of law
ex post facto.
In considering, that in later developments the practice in the International
Criminal Tribunal for the Former Yugoslavia / ICTY and the International
Tribunal fro Rwanda / ICTR indicates that the two applied legal provisions
formed after the act is committed, and in a certain place. ICTY, which was
established through UN Security Council Resolution No. 827 on May 25, 1993,
through its Statute has the power to try crimes committed since 1991.
Article 1 the ICTY Statute, the International Criminal Tribunal for the
Former Yugoslavia: "shall have the power to prosecute persons responsible
for serious violations of international humanitarian law committed in the
territory of the former Yugoslavia since 1991 in accordance with the
provisions of the present Statute".
Similarly in Rwanda, the ICTR Statute states that the Tribunal can prosecute
acts of genocide and violation of humanitarian laws taking place in Rwanda
from January 1, 1994 to December 31, 1994, as provided in UN Security
Council Resolution No.955 dated November 8. 1994.
The International Tribunal for Rwanda shall have the power to prosecute
persons for having committed serious violations of article 3 common to the
Geneva Conventions of 12 August 1949 for the protection of victims of war
and to Additional Protocol II hereto of 8 June 1977…."Article 4 of the
Statute of Rwanda Tribunal".
In considering, that in Machtel Boot's thesis headed Nullum Crimen Sine Lege
and the Subject Matter Jurisdiction of the International Criminal Court;
Genocide, Crimes Against Humanity, War Crimes", dated 15 February 2002, on
page 39, states:
that the drafters of the Rome Statute were also still inspired by
international conventions, international custom as evidence of general
practice accepted as law, and general principles of law recognized by
civilized nations;
Therefore it may be concluded that the legality principle is not absolutely
valid and there may be exceptions to this principle by stating that the
retroactive principle applies in certain cases.
In considering, that an Ad Hoc Tribunal was also conducted for criminals in
the former Yugoslavia and Rwanda under special clauses, that determine
jurisdiction over crimes in certain locus and tempus, namely;
In considering, that the Ad Hoc Human Rights Tribunal in Central Jakarta is
also based on Article 43 of Law No.26 Year 2000, that was later endorsed by
the Indonesian House of Representatives through Keputusan DPR-RI Nomor 55/DPR-RI/III/2001
dated March 12 2001, Concerning Approval by the People's Representative
Council of the Republic of Indonesia of the Proposal to Form an Ad Hoc Human
Rights Tribunal for Suspected Serious Human Rights Violations in East Timor
and Serious Human Rights Violations in the 1984 Tanjung Priok Case, in
conjunction with Presidential Instruction (Keppres) No. 96 Year 2001
concerning Amendments to Keppres. No.53 year 2001 Concerning Formation of an
Ad Hoc Human Rights Tribunal in Central Jakarta, that reads:
Article 2: The Ad Hoc Human Rights Tribunal as referred to in Article 1 is
authorized to examine and rule on serious Human Rights violations occurring
in East Timor in the legislated regions of Liquisa, Dili, and Suai in April
1999 and September 1999, and occurring in Tanjung Priok in September 1984;
Therefore the retroactive principle may also be valid to examine and try
serious human rights violations cases in the prescribed periods, in
particular as in the Penjelasan Undang-undang is is clearly stated that: "in
other words the retroactive principle may be applied to protect human rights
itself under Article 28 jo verse (2) Undang-undang Dasar 1945";
Concerning the relevancy of principles of international law in cases of
serious human rights violation in East Timor;
In considering, that the crimes under Law No.26 Year 2000, which are the
jurisdiction of the Ad Hoc human rights tribunal, categorized as serious
human rights violations covering genocide and crimes toward humanity (that
according to the Rome Statute are classified as the most serious crimes,)
are the common enemy of all mankind (hostis humanis generis), therefore
under international law the state is called upon to try the perpetrators and
punish the perpetrators in a commensurate manner. Punishment of the
perpetrators of these crimes is recognized as an obligation to the entire
international community (erga omnes obligation).
In considering, that the crimes against humanity charged in this case are
included as international crimes that come within universal jurisdiction in
which each perpetrator may be tried anywhere, without regard to locus tempus
delicti, and regardless of the nationality of the perpetrator or the victim.
In considering, that the crimes against humanity charged in this case, as
with war crimes and genocide, come under international customs that are
legally binding to all nations, regardless of whether the nation in question
has or has not ratified or accessed the relevant legal instruments.
In considering, that in international practices in trying war criminals,
crimes against humanity and genocide, international legal instruments are
applied, whether they are humanitarian and human rights legal conventions,
ad hoc criminal tribunal statutes and rulings, general legal principles and
doctrines, all of which have been accepted by the entire international
community.
In considering, that the situation in East Timor, both before and after the
referendum, contained armed conflict of considerable intensity with the
organizations of the conflicting sides meeting the conditions specified in
the 1949 Geneva Convention, it may thus be said that internal armed conflict
occurred in East Timor and therefore the provisions on war crimes as
specified under article 3 of the Geneva Convention may be applied. In
particular as Indonesia has ratified the Geneva Convention through Law No.
59 Year 1958.
In considering, that the Public Prosecutor has charged the Accused of
committing crimes as written in Law N0.26 Year 2000, as follows:
FIRST: Article 42 verse (2) a and b jis Article 7 letter b, Article 9 letter
1, Article 37 Law No.26 Year 2000 concerning Human Rights Tribunals;
SECOND: Article 42 verse 2 a and b jis Article 7 letter h, Article 9 letter
1, Article 40 Law No.26 Year 2000 concerning Human Rights Tribunals;
In considering, that Law No.26 Year 2000 in its clarification has adopted
the Rome Statute;
In considering, that the Panel of Justices' point of reference is the Ad Hoc
Public Prosecutor's Charging Document;
In considering, that the Public Prosecutor has charged crimes against
humanity in the following places and times:
1. Kabupaten Liquisa, on April 3, 4, 5, and 6, 1999;
2. Kabupaten Dilli and Kota Administratif Dilli on April 17, 1999; and on
September 5 and 6, 1999;
3. Kabupaten Covalima, on September 6 and 5, 1999;
Therefore the Panel of Justices will focus legal deliberation on these
specific places and times.
In considering, that as the charges made against the Accused were compiled
cumulatively, the Panel will deliberate on the two charges;
In considering, that will first deliberate on the First Charge, with the
following considerations:
In considering, that Article 42, verse (2) a and b reads as follows:
"A superior, whether police or other civilian, is criminally responsible for
the serious human rights violations perpetrated by the subordinates under
his effective authority and control, as the superior does not exert
appropriate and proper control over his subordinate, namely:
a) The superior is aware of, or consciously disregards, information that
clearly indicates that his subordinates is or has just perpetrated a serious
human rights violation, and;
b) The superior does not take the necessary appropriate measures within his
scope of authority to prevent or halt the act or to surrender the
perpetrator to the relevant authorities for examination, investigation and
prosecution;
In considering, that the Ad Hoc Public Prosecutor has also conjoined the
First Charge with Article 7 letter b and Article 9 letter a, Article 37 Law
No.26 Year 2000.
In considering, that according to the Panel the elements of the First Charge
are as follows:
1. a civilian superior, who is criminally accountable;
2. having subordinates, having authority to exert effective control, did not
exert appropriate and proper control;
3. was aware of, or consciously disregarded information;
4. did not take appropriate and necessary measures within his scope of
authority to prevent, halt acts, surrender to the relevant authorities for
examination, investigation and prosecution;
5. the subordinate was committing, or had just perpetrated, a serious human
rights violation;
6. crimes against humanity, in the form of widespread or systematic attacks
that were known to be directed at the civilian population through killings
In considering, that these elements will be set forth singly by the Panel;
Ad. 1 Concerning the Element of A Civilian Superior who is criminally
accountable
In considering, that the first element, that is a civilian superior who is
criminally accountable, with the following considerations:
In considering, that under the principle of individual criminal
responsibility for a serious human rights violation, every person,
regardless of status and position, who commits a crime against humanity and
a violation against the laws and customs of war is criminally accountable
and may therefore be prosecuted in court.
In considering, that individual criminal responsibility, reinforced by
international statutes and practices in the Nuremberg and Tokyo tribunals,
eliminates several general legal principles:
- that an official is not punishable as an individual for the policies he
executes;
- that an official cannot be prosecuted as an individual for acts executed
in his capacity as a state official; and
- that an individual cannot be prosecuted for crimes that were determined as
crimes after the act was perpetrated;
In considering, that in accordance with a doctrine from the above
international law practices it is stated that an individual may not rely
solely on the laws of his nation, as law and justice are for individual
interests beyond the existence of his nation. Therefore it is also stated
that each individual must comply with international obligations beyond the
laws of his nation.
In considering, that from the above Statutes and tribunal judgments, and in
development of legal principles that state that:
- a perpetrator of a crime against humanity and a war crime cannot argue
that his act was in the interest of the state or resulted from a state order;
- the official position of a perpetrator whether as Head of State or as the
responsible official in a government institution, cannot exempt an
individual from responsibility;
- orders from a superior are not grounds to exonerate a perpetrator from
prosecution and punishment.
In considering, that ad hoc international criminal tribunal practices (ICTY
and ICTR) and various international instruments have developed the above
principles; through the description of individual responsibility parameters
as follows:
- individual responsibility may be charged to a person who has planned,
instigated, ordered, executed, or aided or conspired in the planning,
preparation, or execution of a war crime and a crime against humanity;
- the official position of the accused, whether as head of state or
government, or as responsible government official, does not exonerate the
person from responsibility for the crime or reduce the punishment;
- a crime against humanity perpetrated by a subordinate will not exonerate
the leader or superior from criminal responsibility, if he was aware, or by
the reasonable use of his faculties was aware, that the subordinate was
about to perpetratea crime and the leader or superior failed to take
appropriate and reasonable measures to prevent him or failed to punish the
perpetrator; and
- the excuse of superior's orders shall not exonerate a person from criminal
responsibility, but may be considered as a mitigating factor.
In considering, that the doctrine of a superior's responsibility that was
later inserted in Article 42 verse (2) as a part of individual criminal
responsibility according to international law, was developed by the
international community in trying war criminals and crimes against humanity
after World War II, that was eventually crystallized in the Rome Statute.
This was intended as a means to demand accountability from military and
non-military superiors, for crimes perpetrated by their subordinates or men
because they failed to prevent or control their subordinates;
In considering, that the limits set forth by Hugo Grotius concerning a
superior's responsibility should meet three conditions as follows;
1) the person had the authority to control the actions of his subordinates,
a simple example being: the attention of a father to his children, or of an
employer to his employees;
2) there was knowledge, in which the person knows of the crime perpetrated
by his subordinate, but he does not prevent the act;
3) there was ability to prevent a crime. This means that if a person is
proved unable to take preventive measures, he is not liable for superior's
responsibility.
In considering, that the limits of the superior's responsibility mentioned
above underlie provisions for the superior's responsibility in the Stattute
of International Criminal Tribunal for Former Yugoslavia (ICTY Statute), the
Statute of International Criminal Tribunal for Rwanda (ICTR Statute) and the
Rome Statute, that were later adopted in Law No.26 Year 2000 concerning
Human Rights Tribunal (Article 42 verse 2 (a) and (b)).
In considering, that application of the doctrine, in addition to being used
in demanding accountability from a military superior for failure to act, as
in the cases of Yamashita, High Command, Hostages and Meyer, in further
developments in the Tokyo Tribunal it was later agreed that the
responsibility of a superior could also include non-military superiors. This
indicates that in certain cases analogies may be made between the
responsibility of a military command and the responsibility of a non
military superior or a civilian official. As additional legal basis, Article
86 Additional Protocol I to the 1949 Geneva Convention in 1977, stipulates
that in certain cases all superiors shall be responsible for failure to act.
Then Article 7 paragraph 3 of the ICTY Statutes also points not only to
military superiors but also includes non-military superiors. This provision
was applied in the Celebici case.
In considering, that according to the testimony of witnesses under oath or
the testimony of the Accused in court, the Accused is proved to be the
Governor of Provinsi Tk.I TIM-TIM from 1997 to 9 September 1999, until the
separation of TIM-TIM Province from the Indonesian nation through a
referendum conducted on August 30,1999. The installment of the Accused as
Governor of TIM-TIM for the period stated above, was based on Kepres no.260/M/Thn.1997.
In considering, that according to the testimony of witnesses and the Accused,
in Tim-Tim Province there were 13 kabupatens headed by Bupatis. From this
fact it may be stated that the Accused headed Government in Propinsi Tk.I
Timi-Tim and controlled the Bupatis and therefore the Accused may be
established as a civilian superior;
In considering, that according to Law No.5 Year 1974 the duty of a Governor
is to lead the administration and to be fully responsible for the course of
regional government. That according to the authority vested under law Number
5 Year 1974 the Governor is the direct superior of the Bupati KDH Tk.II or
the Walikota KDH Tk.II. Furthermore, the Regional Head at the kabupaten
level is the Bupati who in executing his duties as Regional Head is res[onsible
to the Governor who is Regional Head at Tk.I. As such it may be stated that
that the Bupatis or Walikotas are the Govenor's subordinates and therefore
they are under the control of the Governor as their direct superior;
In considering, that in accordance with Article 78 Law No.5 Year 1974 a
Regional Head is hierarchically responsible to the superior Regional Head,
therefore the Bupatis and Walikotas are responsible to the Governor, and
according to Article 80 Law No.5 Year 1974 the Governor as the single person
in authority in the government of his region, in terms of administration of
government, coordination of development and fostering the lives of the
people in every field;
In considering, that the Accused Abilio Osorio Soares as a Governor
installed under KepPres RI No.260/M/1997, according to Law No.5 year 1974
carried the task of leading the administration and was fully responsible for
the entire course of government;
In considering, that the Accused as Governor under Article 77 Law No.5 year
1974 as regional Head of the Province of East Timor and in executing his
duties was responsible to the President by way of the Mendagri;
In considering, that according to Article 78 Law No.5 year 1974 a Regional
Head is hierarchically responsible to his superior Regional Head, the
Accused as Governor of east Timor was the superior of 13 bupatis in the
region of East Timor. Therefore it is established that the Accused was the
superior of the bupati of Liquisa Leonito Martin and the bupati of Covalima
Drs. Herman Sedyono;
Ad.2 Concerning the Element of Having Subordinates, Having Authority To
Exert Effective Control, Did Not Exert Appropriate And Proper Control Over
His Subordinates;
In considering, concerning the second element, namely the superior
subordinate relationship, had the authority to exert effective control but
did not exert appropriate and proper control over subordinates, the Panel
will deliberate the following;
In considering, that essentially a superior subordinate relationship is a
superior having the authority to exert proper control over his subordinates,
by de jure or de facto. The superior must have the authority to control his
subordinates and be able to command or direct his subordinates.
In considering, that the category of superior may include political leader,
company leader, and senior civilian official (Celebici case). As in military
organizations, superiors have a chain of responsibility from one superior to
a lower superior. In the Rwanda case, for instance, Akayesu, a mayor (bourgmestre)
who carried out executive functions and conducted public administration
among the people, including wielding power over politicians, was found
criminally responsible for the acts of his subordinates; although he was not
a member of the military with the responsibility of a commander, he held
legal mandate and was considered an official, agent or person with public
authority, or by de facto represented Government in endorsing the violence
perpetrated by the Hutu over the Tutsi. This was accompanied by the
condition that he had proper knowledge that his subordinates was carrying
out such acts, or was about to carry out such acts whereas the superior
failed to act in a significant and reasonable manner to prevents these acts;
In considering, that the perception of a subordinate is each person with a
direct superior who directs his actions or related activities. In a large
organization a person may hold a position both as superior as well as
subordinate.
In considering, that the denotation of effective authority and control is
when a superior by de jure or de facto wields the power to issue directives
to his subordinates to execute a certain task or a related activity.
In considering, that as contained in Article 86 Ist Additional Protocol of
the Convention of 1977, that states that a superior shall create an
effective reporting system to ensure that in executing his duties a
subordinate complies with humanitarian laws, and if he should be aware of a
potential violation or an actual violation then he should take measures to
prevent or handle the violation. Therefore, a superior shall be responsible
for serious human rights violations carried out by his subordinate, if:
- if the superior knew that a subordinate had or was about to perpetrate a
serious human rights violation; or
- or the superior had received information enabling him to conclude that his
subordinate had or was about to perpetrate a serious human rights violation;
and
- the superior did not take measures within the scope of his authority to
prevent the serious human rights violation.
In considering, that in relation to the above denotation, the Panel will
deliberate the position of the Accused with regard to the discussion of this
Ad. 2.
In considering, that according to the testimony of witnesses under otha
namely Joao Fereira, Emilio Barito, both of whom are victim witnesses and
other witnesses, namely Mayjen Adam Damiri, BrigjenTono Suratman, Brigjen
Nur Muis, Brigjen Pol Timbul Silaen, Kol TNI Herman Sedyono, Kol TNI Mujiono,
Dominggus MD Soares, Mateus Maia, Lettu Pol Sony Sanjaya, Eurico Guteres,
Pranoto, Joko Sugianto, and the testimony of the Accused himself in court
and in connection with the facts in court, that indeed there occurred
violence, killings, assault, destruction, the burning of houses and churches
in Kab. Liquisa, Dili, Covalima;
In considering, that the attack on the Liquisa church on April 5 and 6, 1999
resulted in the deaths and wounding of victims. According to the testimony
of victim witnesses Joao Fereira and Emilio Barito both witnesses sustained
hacking wounds by sharp weapons all over their bodies. That according to
witness Emilio Barito the dead victims he saw numbered 9 people, while
witness Joao Fereira heard that the number of dead victims numbered 9 people,
and in addition, there were those people who sustained injuries among others
A. Dos Santos, Da Costa, Agustino, Jonico, Narsizo, Manuel Lisboa, Victor,
Anuko;
In considering, that the attack by the Pro Integration group on the Pro
Independence group who were sheltering in the house of Manuel Carascalao on
April 17, 1999, following the Grand roll-call at the grounds of the Governor
of Tim-Tim's office, resulted in the deaths of 17 victims, including
Manelito Carrascalao the son of Manuel Carrascalao and other victims
sustaining injuries. That witness Djoko Sugianto when in Dili directly saw
the victims at Dili hospital and was able to count the dead victims as 17
people, as well as there being wounded victims. Similarly the attack by the
pro integration group on the pro independence group sheltering in the Dili
Diocese resulted in deaths and injuries to the victims.
In considering, that as a result of the attack of September 6, 1999 by a pro
integration group on a pro independence group who were sheltering in the
Suai church there were 27 dead victims, comprising 17 male victims and 10
female victims including one small child;
In considering, that according to witnesses at the scene of the incident,
namely Lettu Pol. Soni Sanjaya Danton Brimob in Suai testified that witness
shouted at the people in the church to help collect the dead bodies sprawled
in the church and in the vicinity of the church. According to the witness
the witness was moved when he saw among the dead human bodies a dead woman
in a very deplorable state holding a small child who was also dead;
In considering, that according to the Panel before the attack occurred there
was a concentrated mass of thousands of people carrying firearms, home-made
weapons and sharp weapons around the Suai church, who came and then attacked
as a result of the pro integration defeat in the referendum, that the mass
attacked who were taking refuge and sheltering in Suai church numbered over
2000 people;
In considering, that according to the Panel of Justices, when the Grand
roll-call was held on the grounds of the Governor's office which was
attended by a gathering of Pro Integration masses having similar political
views and among the participants some carried firearms, home-made weapons
and sharp weapons, in the view of the Panel this potential situation was
used to attack their political opponents in this case the Pro Independence
group. Meanwhile the Grand Roll-call was held using public facilities under
the management of the Accused's authority, and according to facts in court
the Accused was present at the time, but the Accused failed to take the
opportunity to disband the roll-call, in which at the time some participants
carried sharp weapons, firearms and home-made weapons;
In considering, that a mass gathering with a desire to win the referendum
was very easily provoked and according to the testimony of witnesses in
court that when the Accused attended the Grand Roll-call according to the
Accused it was not held by Pam Swakarsa, and did not concur with the
information of witness Dominggus M.D.Soares who said the Grand Roll-call was
a Pam Swakarsa roll-call and according to the Accused the Grand Roll-call
was in fact a PPI roll-call. That according to the Panel although the
Accused knew that the roll-call was held by PPI carrying firearms, sharp
weapons, the Accused in fact did nothing under the excuse that the Accused
had to remain neutral and left the Grand Roll-call with the excuse of
receiving the Foreign Minister of Northern Ireland, without making any
effort to disband the Grand roll-call;
In considering, that the Panel needs to deliberate the position of witness
Eurico Guterres, as deputy Commander of PPI, who was not formally the direct
subordinate of the Accused. That according to the Panel, PPI through various
existing channels had received assistance directly and indirectly from the
Accused as Governor, from APBD or other sources;
In considering, that according to the Panel, emotionally there was a
connection and relationship between the Governor as a Representative of
Central Government in Tim-Tim and who was also a Pro Integration figure, and
witness Eurico Guterres who was the leader of the military wing of FPDK
which desired Integration with Indonesia;
In considering, that in the situation and conditions at the time the Accused,
the Governor, as Head of the Region and as Territorial Head had the power to
exert control over the political and community organizations through
Dit.Sos.Pol. apparatus, but the Accused did not use his authority
effectively;
In considering, that according to the Panel with regard to the Bupati of
Liquisa and the Bupati of Covalima and the attacks that resulted in violence,
killings, assault, destruction, burning of houses and churches in Liquisa
and Covalima, it is proved that control by the superior, in this case the
Accused, over subordinates was not effective.
Ad 3 The Element of Knowing or Consciously Disregarding Information
In considering, that the third element, namely knowing or consciously
disregarding information will be deliberated as follows:
In considering, that the denotation of "knowing" or "consciously
disregarding information", contains the elements: that there was actual
knowledge to be found from direct evidence or should have been known because
of the situation. Standards on "need to know" differ between military
superiors and non-military superiors. For non-military (civilian) superiors,
it must be proved that:
- the information clearly indicated significant risk that his subordinates
were committing or were about to commit serious human rights violations, in
the active and passive senses;
- the information was indeed available to the superior; and
- the superior knew the information existed, but failed to determine the
category of the information
In considering, that the superior was required to receive reports, thus
reports were delivered to him or to his office but he failed to obtain
knowledge of the contents of the information, and therefore he may be said
to have consciously disregarded the information;
In considering, that the Accused as Governor who was the sole power in the
region of East Timor Province, should have known and been aware, that in
fact in East Timor at the time various conflicts were taking place, that he
knew occurred between the two contending major factions as a result of
struggling for two different political ideologies;
In considering, that the Accused admitted in court that the conflict that
occurred was the continuation of the history of East Timor long before the
Accused became Governor, and that he realized that the conflict had claimed
many lives;
In considering, that the conflict that occurred, specifically in Covalima,
Dili and Suai, was also a continuation of the hostilities between two
factions with different political aspirations that was triggered by the
announcement of options by Central Government, that resulted in euphoria on
the Pro Independence side, and the Pro Integration group felt aggrieved;
In considering, that according to the testimony of witness Leonito Martin as
Bupati KDH Tk.II of Liquisa, he had reported to the Accused the incident of
the attack by the pro integration group on the pro independence group in the
Suai church on April 5 and 6, 1999. Similarly, the violence in the house of
Manuel Varrascalao on April 17, 1999 and the attack at the Suai church had
been reported by the Bupatis to the Governor/Accused as the highest
authority in Tim-Tim;
In considering, that the Accused had received numerous reports on the
escalating violence from day to day and yet the Accused failed to categorize
the information so that he could not anticipate events;
In considering, that the Accused had received the presence of the two
opposing groups in the Governor's office, at the time the Accused received
reports of the attacks in Liquisa on April 5 and 6, 1999. That the Accused
indeed asked the two disputing groups, namely the pro independence group and
the pro integration group to return to Liquisa and attempt to bring about
peace and not to repeat the violence. After the meeting, the accused
departed for Jakarta. On April 5 and 6, 1999, an attack was launched by the
pro integration group on the pro independence group who were taking refuge
in the Liquisa church, leading to the deaths of nine people and others
sustaining injuries;
In considering, that at the time of the attack the Accused was in Jakarta
and the Accused received a report from the Vice Governor concerning the
incident in Lquisa. That according to the testimony of witnesses and facts
in court the attacks on April 5 and 6 1999 in the Suai church was associated
with the conflict between the pro independence group and the pro integration
group on April 3 and 4, 1999, and at the time the pro independence group had
set fire to houses owned by the pro integration group;
In considering, that in the Panel's judgment the Accused should have been
aware that the situation was not conducive, as the Accused had just received
the two conflicting groups in the office of the Governor of Tim-Tim, and yet
the Accused still departed for Jakarta. In light of the conflict on April 3
and 4 the Accused should have prioritized resolving the conflict between the
disputing groups over departing for Jakarta;
In considering, that according to the Panel the attack at the Liquisa church
occurred in the same form and pattern as in Covalima and Dili, without
maximum efforts at prevention from the security apparatus, and the security
apparatus as well as the Pemda apparatus had taken sides and were not
neutral in handling the conflict that occurred;
In considering, that the attack occurring at the Liquisa church followed the
same pattern that had occurred in various places in Tim-Tim but the most
prominent were the attacks at the house of Manuel Carascalao, the Dili
Diocese and the Suai Covalima church. The incidents in these locations were
outstanding as the attack methods and pattern were massive and excessive and
resulted in large numbers of deaths and injuries, and residents' houses and
churches were damaged and set on fire;
In considering, that under the security arrangements agreement between
Indonesia and Portugal and the UN Secretary General, point one stated that a
safe climate without violence of any other form of intimidation was a pre
requirement for the implementation of a free and just referendum in Tim-Tim.
Responsibility for ensuring such a climate and for the maintenance of law
and order was generally laid at the door of an adequate Indonesian security
authority. The full neutrality of TNI and Polri were very crucial in this
case;
In considering, that under that point of the agreement, the Accused along
with the security apparatus in Tim-Tim were responsible, as the referendum
was occurring in the region of Tim-Tim where the Accused held the office of
Governor, and as a leader the Accused had to be responsive and to monitor
conditions on the ground;
In considering, that the Panel believes that the failure of the Accused to
halt all forms of violence in the Tim-Tim area had encouraged the emergence
of violence that engulfed the Tim-Tim area, in particular in Kabupaten
Liquisa, Dili and Covalima;
In considering, that the Governor as the sole power of the region of East
Timor Province had received reports from his subordinates that the situation
was continuing to heat up, but the response to these reports was the
reactivation of Pamswakarsa which was funded by the APBD from each region;
In considering, that according to the facts in court Pam Swakarsa consisted
of various factions such as Laksaur, Aitarak, BRTT which were part of PPI as
the Pro Integration military wing that was widely involved in acts of
violence against civilians in Tim-Tim;
In considering, that in the violence that occurred in and engulfed East
Timor province, in particular Kabupaten Liquisa, Dili, Covalima and
according to the facts in court, the Bupati from the three Kabupaten had
reported to the Accused the incidents of violence an attacks occurring at
Liquisa Church, Suai Church and the house of Manuel Carascalao in Dili. For
example, the attack on Liquisa Church on April 5 and 6, 1999, continued on
into the incident in Dili on April 17 1999 at the house of Manuel Carascalao,
and even into the incident at the Suai Church on September 6, 1999, in which
the whole sequence of attacks led claimed so many lives, that as Regional
Head and as Government Head, the number of victims among the people should
have been of great concern to the Accused;
In considering, that the Panel believes the Accused did consciously
disregard information relayed by his subordinates, namely the Bupatis, who
had reported the incidences of violence to the Accused;
Ad.4 The element concerning not taking appropriate and necessary measures
within the scope of his authority to prevent, halt acts, surrender to the
relevant authorities for examination, investigation and prosecution.
In considering, that with regard to this fourth element, namely not taking
appropriate and necessary measures within the scope of his authority to
prevent, halt acts, surrender to the relevant authorities for examination,
investigation and prosecution, the Panel deliberated as follows;
In considering, that all superiors are obliged to take practical measures to
ensure that his subordinates comply with rules in executing their duties;
In considering, that the Accused as Governor did not take appropriate and
proper measures against the Bupati of Dili, Dominggus Soares, as inviter of
the PPI Grand Roll-Call on April 17, 1999, whereas he was aware that the
roll-call involved the assembly of a vast number of people, furthermore that
some of the participants of the roll-call carried home-made weapons,
firearms and sharp weapons, in an unconducive atmosphere that could trigger
a large conflict, and indeed after the roll-call an attack was made on the
house of Manuel Viegas Carrascalao, where were civilian refugees, comprising
the adult, men, women, and children;
In considering, that the attack against civilians (refugees) who were inside
the house of Manuel Viegas Carrascalao resulted in many casualties, both
dead and wounded, proves that the Accused as Governor had failed to take
appropriate and necessary measures. With the authority vested in him as
Governor and sole power of the East Timor region, the Accused should have
disbanded the grand roll-call, but did not do so, and instead left the grand
roll-call without taking any action;
In considering, that against Bupati Dominggus M.D. Soares as inviter of the
Grand Roll-Call event the Accused as his superior should have demanded
accountability, as the incident at the residence of Manuel Carascalao was a
continuation of the Grand Roll-call held on the grounds of the Governor's
Office;
In considering, that according to the Panel the attack on the residence of
Manuel Carascalao was in fact perpetrated by PPI, which was the military
wing of FPDK whose leader was Dominggus M.D. Soares. That according to the
Panel, the Accused should have surrendered the Inspektur Upacara of the
Grand Roll-Call along with the Bupati of Dili Dominggus M.D. Soares to the
relevant authorities for prosecution. Similarly, to the people who addressed
the Grand Roll-Call resulting in the incitement of the mass of participants
of the Grand Roll-Call to attack the house of Manuel Carascalao.
Ad.5 The Element concerning the subordinate perpetrating, or having just
perpetrated a serious human rights violation
Ad.6 The Element concerning Crimes against humanity, in the form of
widespread or systematic attacks that were known to be directed at the
civilian population through killings.
In considering, that with regard to Ad.5 and Ad.6, the Panel will deliberate
the two together, as the two elements are very closely linked;
In considering, that the element of crime against humanity charged in this
case as an act perpetrated as part of an attack, should fulfill the elements
of "widespread", "systematic", and "directed at the civilian population",
the panel shall deliberate as follows;
In considering, that a serious violation of human rights, including a crime
against humanity - is when widespread or systematic factors are present. The
incidents in East Timor may come under the category of crimes against
humanity, as they fulfill the elements of "widespread", "systematic" and
directed at the civilian population with the following description;
- an attack denotes an attack that is not necessarily a military assault, as
denoted in International Humanitarian law in that the attack need not be
accompanied by military forces or by the use of weapons, in other words if a
killing occurs as a result of the mobilization of force or an operation
launched against the civilian population. Such conflict may be termed as an
attack;
- that an attack on the civilian population does not necessarily imply an
attack on the entire population, but suffices if applied to a group within
the civilian population with certain political beliefs;
- that it was "widespread", as in the incidents charged it was proved that
there was massive, frequent, large-scale killings perpetrated collectively
with very serious consequences in the form of large number of casualties.
- Systematic denotes the formation of an idea or principle based on planned
research or observation using a general procedure. In relation to serious
human rights violation, systematic may be defined as based on a consistent
and similar pattern. The pattern here denotes an interlinked structure or
design. Consistency here denotes an idea marked for its unchanging position
or mutually related, or a previously formed characteristic that is
repeatedly demonstrated.
In considering, that the denotation of systematic contains 4 (four) elements
as follows:
- the presence of a political aim, a plan to launch an attack, an ideology,
in a broad sense of destroying or weakening a community;
- perpetrating large-scale criminal acts on a civilian population, or the
consistent and constant perpetration of inter-related inhumane acts;
- prior preparation and the significant use of public or individual property
or facilities;
- the presence of high level political implications or military authority in
defining or realizing a methodical plan.
In considering, that based on the consideration of ICTR in the Kayishema and
Ruzindana cases, a widespread or systematic attack is as follows:
- an attack in which the attack launched results in numerous victims,
whereas an attack become systematic if it was preconceived.
In considering, that in this case, according to the facts disclosed in court
in nearly the entire region of East Timor comprising 13 Kabupaten, there
occurred violence, killings, assault on the population, and destruction on a
similar and consistent pattern;
In considering, that according to the testimony of witnesses Emilio Barito,
Joao Pereira, and other witnesses, and to the facts in court, the victims
killed during the attacks were from the civilian population, comprising
adult mena nd women, children, and clergy who died in deplorable conditions;
In considering, that in fact, according to the Panel, the victims who died
or were wounded were mostly refugees who intended to seek safety by
sheltering in Churches and in the residence of Manuel Carascalao;
In considering, that the violence, killings, assault perpetrated by the pro
integration people was part of a planned strategy to cause the Pro
Integration group to win the referendum, this being the policy of Regional
Government, in which the Governor as the highest authority held to the same
political ideology as the Pro Integration group;
In considering, that in order to pass a sentence on the Accused for serious
violation of human rights it must be proved that the Accused had knowledge
of, and sympathized with, the policy to carry out crimes, and this is an
essential element that distinguishes him from an ordinary criminal, so that
in this case the Accused may be sentenced for the acts perpetrated by others;
In considering, that according to the testimony of witnesses under oath,
namely Joao Fereira, Emilio Barito, both of whom are victim witnesses, anf
other witnesses namely Mayjen Adam Damiri, Brigjen Tono Suratman, Brigjen
Nur Muis, Brigjen Pol Timbul Silaen, Kol TNI herman Sedyono, Kol TNI Mujiono,
Dominggus M.D. Soares, Mateus Maia, Lettu Pol Sony Sanjaya, Eurico Guteres,
Pranoto, Joko Sugianto, and the testimony of the Accused himself in court
and in connection with the fact in court, that indeed there had occurred
violence, killings, assault, destruction, setting fire to houses and
churches, in Kab. Liquisa, Dili, Covalima;
In considering, that the attack on the Liquisa church on April 5 and 6,
1999, resulted in dead and wounded victims. According to victim witnesses
Joao Fereira and Emilio Barito, both sustained hacking wounds from sharp
weapons all over their bodies. That according to witness Emilio Barito he
witnessed at least 9 dead victims, whereas witness Joao Fereira heard that
the number of dead victims was 9 people, and in addition there were the
wounded, including A. Dos Santos, Da Costa, Agustinho, Joninopo, Nurzizo,
Manuel Lisboa, Victor, Anuko;
In considering, that according to the testimony of witnesses under oath and
the testimony of the Accused, and in connection with the facts in court;
That on April 17, 1999, a grand roll-call was held on the grounds of the
Governor's office attended by over 6000 people, which participants came from
the Kabupatens in Tim-Tim. The officials who were present during the event
included: Muspida Tk.I Tim-Tim the Governor/Accused, Speaker of DPRD Tk.I,
the Bupati of Dili, the Mayor of Dili, representing Polda Tim-Tim and Danrem
Wiradharma;
That the inspektur upacara for the event was PPI Commander Joao Tavares, who
also opened the grand roll-call, by asking the masses present to win the
Integration process and remain united within the Union State of the Republic
of Indonesia;
That in addition to PPI Commander Joao Tavares, PPI Deputy Commander Eurico
Guterres also addressed the thousands present, and in his address PPI Deputy
Commander Eurico Guterres impassioned the mass by saying that the family of
manuel Carrascalao was a family of traitors;
That after the Grand roll-call on the grounds of the Governor's office was
over, during a procession of vehicles the Pro Inetgration mass passed by the
residence of Manuel Carascalao and a scuffle and shouting match broke out
between the Integration group and the Pro Independence group who were taking
refuge in the residence of Manuel Carascalao. That the scuffle caused the
Pro Integration group to attack the Pro Independence group who were
sheltering and taking refuge in the house of Manuel Carascalao, and led to
17 (seventeen) deaths and wounded victims;
That witnesses Joko Sugianto and his Team while at the Hotel Mahkota in Dili
saw a rally in vehicles in which firearms and ordinary weapons were carried.
That subsequently after the procession had died down, the witness
immediately visited the victims in the Dili hospital, and that indeed the
number of dead upon the witness' count reached a total of 17 (seven teen)
people and there was I (one) wounded victim.
That according to the testimony of witness Raja Karina Brahmana during the
grand roll-call some participants were carrying sharp weapons and home-made
weapons;
In considering, that according to a witness at the crime scene, namely Lettu
Pol Soni Sanjaya the Danton Brimob in Suai, the witness shouted at people in
the vicinity of the church to help in collecting the dead bodies sprawled
inside the church and in the vicinity of the church. According to the
witness, the witness was moved by the sight that among the dead bodies a
dead woman in a pitiful condition was still holding a small child that was
also dead;
In considering, that according to the Panel, the town of Suai is a small
town, and therefore any mass movement on a large scale was easily detected.
According to rational thinking it was impossible for Bupati of Covalima
Kol.TNI Herman Sedyono not to be aware of a mass concentration of thousands
of people that were about to attack the independence group sheltering and
taking refuge in Suai Church. Similarly, the Dan Dim of Suai, the Kappolres
of Suai and other security apparatus, were certain to be aware of the
situation taking place;
In considering, that according to the Panel the Bupati of Suai Kol TNI
Herman Sedyono, the Dan Dim, the Kapolres and the security apparatus could
surmise what would happen if the mob was not averted or halted. That from
the testimony of witnesses and the Accused it was not found that efforts
were made by the security apparatus to halt the mob heading to attack Suai
church. Meanwhile many of the TNI and Polri security apparatus were still in
Suai Covalima, but their strength was not maximally utilized to prevent the
attack. Bupati of Covalima Kol. TNI Herman Sedyono never asked the security
apparatus to take firm action against all rioters regardless of whether they
were from the pro independence group or from the pro integration group;
In considering, that the panel concludes that the Bupati of Covalima Herman
Sedyono laong with the DanDim and the Kapolres and the security apparatus
had deliberately allowed and provided the opportunity for an attack by the
pro integration group on the pro independence group which was taking refuge
and sheltering in Suai church, and which according to victim witnesses
numbered over 2000 people who had been in the Suai church for two days
without food and water and were in a weak state;
In considering, that according to the Panel from the beginning the security
apparatus had not diverted the people who had come to attack the Suai church
compound, the security apparatus had not made efforts to provide protection
to the people taking refuge who were in fear and hunger;
In considering, that in the judgment of the Panel of Justices, Bupati
Covalima Kol TNI Herman Sedyono by law, in relation to the serious violation
of human rights, although he did not participate directly in the attack, by
omission he can be said to have relinquished responsibility for the
occurrence of violence in Suai Church;
In considering, that in the case of the attack on the Suai church the
security apparatus, TNI and POLRI, Dan Dim, Kapolres and the bupati arrived
at the scene of the incident only after the attack was over and victims had
fallen. Further Bupati Covalima Kol TNI Herman Sedyono made no effort to
order the dead bodies to have a proper burial, instead the bodies were
allowed to lie sprawled and were only collected and buried the next day by
Lettu Sugito the Dan Ramil of Suai and Witness Pranoto at the Metamao beach
in the NTT region.
In considering, that based on the above deliberations, viewed from their
conformity and interconnection, and in relation to theories currently under
development, principles, treaties and customary international norms, and
international court practices for crimes against humanity, the Panel
concludes that the crimes charged under (actus reus) under the First Charge
have been legally and undoubtedly proved, namely the Accused clearly
participated, which participation supports the acts resulting in the
consequences as charged by the Ad Hoc Public Prosecutor;
In considering, that the Accused was charged with the Second Charge as
regulated under: Article 42 verse (2) and b jis Article 7 letter b, Article
9 letter h Article 40 Law Number 26 year 2000 concerning Human Rights
Tribunal.
In considering, that according to the Panel the elements of the second
charge is as follows:
1. a civilian superior, who is criminally accountable;
2. having subordinates, having authority to exert effective control, did not
exert appropriate and proper control;
3. was aware of, or consciously disregarded information;
4. did not take appropriate and necessary measures within his scope of
authority to prevent, halt acts, surrender to the relevant authorities for
examination, investigation and prosecution;
5. the subordinate was perpetrating, or had just perpetrated, a serious
human rights violation;
6. crimes against humanity, in the form of widespread or systematic attacks
that were known to be directed at the civilian population through assault;
In considering, that the Panel will then deliberate elements Ad.1 to Ad.6;
In considering, that the elements Ad.1 to Ad.5 were deliberated by the Panel
in the deliberation of the elements of the first charge, the Panel will
transfer these legal deliberations of the first charge into legal
deliberations of the second charge;
Ad.6 Crimes against humanity, in the form of widespread or systematic
attacks that were known to be directed at the civilian population through
assault;
In considering, that the Panel will subsequently refer to the deliberation
of Ad.6 in the first charge and transfer those deliberations into the legal
deliberation of the second charge;
In considering, that according to the testimony of witnesses and facts in
court the attack carried out by the Pro Integration group on the civilian
population of Pro Independence refugees comprising adult men and women and
children had resulted in injuries;
In considering, that according to the testimony of victim witnesses Joao
Fereira and Emilio Barito it was indded true that they sustained hacking
injuries all over their bodies and were treated in a hospital for several
days;
In considering, that based on all the above considerations, according to the
Panel the crimes charged to the Accused in the First Charge and the Second
Charge, have been lawfully and undoubtedly proved;
In considering, that based on the above considerations, the Panel concludes
that the Accused failed to take action against his subordinates whether in
preventing them, or in issuing warnings and demanding reporting, or in
bringing them to prosecution;
In considering, that with regard to expert witness testimony the panel
considers it not binding, and as such the panel does not concur with the
expert's testimony;
In considering, that to the Prosecution Closing Brief by the Ad Hoc Public
Prosecutor which presents that the elements of the articles charged refer to
General Crimes, the Panel of Justices does not concur as this case is one of
serious violations of Human Rights, and therefore the elements to be proved
are elements of the articles charged;
In considering, that to the entire Defense Closing Brief by the Legal
Counsel of the Accused, the Panel has deliberated as in the legal
deliberations above;
In considering, that the Panel of Justices will deliberate whether the
crimes that were lawfully and undoubtedly proved are the full responsibility
of the Accused;
In considering, that although the Accused as Governor of East Timor was
Regional Head and sole power in the region, in fact the following applied:
1. specifically following the signing of the Tripartite Agreement of May 5,
1999, the power of the Accused was very limited or was at least reduced, as
in document two of the Tripartite Agreement it was clearly stipulated that:
"concerning the Commission for Peace and Stability formed in Dili on April
21, 1999", and "Only the Police are responsible for maintaining public order….";
2. that since that time a large part of the Pro Independence people no
longer complied with legislation, whether issued by Central or Regional
Government;
3. that as the day of the referendum approached the situation/condition in
Tim-Tim began to flare up and was no longer conducive to the normal
implementation of Government activities;
4. that in fact the clashes that took place were initiated by both the pro
Integration people and the Pro Independence people, and as such the blame
was shared (verdeelde schuld) between Pro Integration leaders and Pro
Independence leaders;
5. that escalation of violence in the form of attacks on the civilian
population and a series of incidents in which houses, office buildings and
shops were set on fire were not fully the responsibility of the Accused, as
factually other authorities were more responsible;
6. that the fraud, discriminative attitude against the Pro Integration group
displayed by the UN team (in this case UNAMET) throughout the referendum
process generated discontent or feelings of defraudation, and arrogance
among the Pro Independence group, leading to rising anger among the Pro
Integration people;
7. that in relation to the above situation, communication and control by the
Governor as the Bupati's superior was no longer effective, and therefore it
is difficult to state that the Governor still retained effective control.
8. that since September 5, 1999, 19: 30 WITA, Command was transferred from
Polri to TNI.
9. that since September 7, 1999, Martial Law took effect in East Timor, and
therefore the Civilian Government was no longer functional.
10. that therefore since May 5, 1999, other parties should be held
accountable for the turmoil taking place in East Timor apart from the
Regional Government led by the Accused as Governor;
11. that therefore blame cannot be laid entirely at the Accused's door, and
in other words the responsibility of the Accused was limited to incidents
occurring before May 5, 1999, although by de jure the Accused's authority
was valid to September 7, 1999.
12. that the failure of the Accused was the failure of omission as the
Accused failed to anticipate the occurrence of serious human rights
violations in East Timor;
13. that indeed the Accused did not perpetrate attacks, killings, or assault,
in other words the Accused was not an active perpetrator of the crimes
charged against him, but by failing to act instead caused the consequences
as set forth in the Prosecutor's Charging Document;
In considering, that the Accused has been found to have perpetrated the
offenses set out in the First Charge under Article 42 (2) and b jis Article
7 letter b, Article 9 letter a, Article 37 Law Number 26 and in the Second
Charge under Article 42 (2) a and b Jis Article 7 letter b, Article 9 letter
h, Article 40 Law Number 26 concerning Human Rights Tribunal, and thus
liable for a minimum sentence of at least 10 (ten) years;
In considering, that to this minimum sentence the Panel believes that:
1. The Justices are not a mouthpiece of the Law;
2. Sentencing is not merely to serve in establishing certainty or vengeance
but instead to fulfill a sense of justice;
3. The presence of a letter from the President of Timor Leste Xanana Gusmao
indicates a spirit of reconciliation that shall not be buried under a severe
Sentence for the Accused;
4. The Panel endorses the reconciliation efforts currently underway without
leaving a loophole for impunity;
In considering, that regarding the evidence as set out in the evidence list
by the Public Prosecutor shall be handed over to the Ad Hoc Public
Prosecutor to be used as evidence in other cases;
In considering, that before the Panel reaches a verdict in this case, it
will first deliberate on mitigating factors and aggravating factors;
Mitigating factors
1. The Accused was very cooperative in court;
2. The Accused is a prominent figure who was devoted to furthering the East
Timor people in Education, Economy, and Social and Cultural Affairs;
3. The Accused is a prominent figure who continued reconciliation efforts
despite the difficult circumstances;
4. The Accused is already under Sentence as he is exiled from his homeland
and suffered losses of loved ones and property;
5. The Accused's term of office as Governor coincided with a situation in
which East Timor was at the peak of strife between the Pro Integration group
and the Pro Independence group.
Aggravating factors
1. The incidents charged by the Ad Hoc Public Prosecutor proved to have
claimed numerous lives and incurred much loss of property occurred during
the Accused's term of office as Governor of East Timor;
2. Despite the efforts made by the Accused, these efforts were not optimally
effective in reducing the violence occurring in East Timor;
3. As Governor the Accused failed to prevent his subordinates from
perpetrating crimes against humanity;
4. The violence that occurred in East Timor during the Accused's term of
office as Governor served to malign Indonesia in the eyes of the
international community, specifically in relation to upholding human rights;
In considering, that as the Accused has been found guilty, he is also
sentenced to pay court costs to the sum of Rp.5,000.- (five thousand rupiah).
In light of Law Number 8 Year 1981, Law Number 39 Year 1999, Law Number 26
year 2000, and the Universal Declaration of Human Rights and other
legislation associated with this case;
PRONOUNCES
- States that the Accused ABILIO JOSE OSORIO SOARES was lawfully and
undoubtedly found guilty of perpetrating Crimes under the First Charge and
the Second Charge, of;
"SERIOUS HUMAN RIGHTS VIOLATIONS IN THE FORM OF CRIMES AGAINST HUMANITY"
- That therefore the Accused is sentenced to 3 (three) years in prison;
- That the evidence as set forth in the evidence list is handed over to the
Ad Hoc Public Prosecutor to be made evidence in other cases;
- That the Accused is sentenced to pay court costs to the sum of Rp.5,000, -
(five thousand rupiah).
Thus was the verdict reached on Wednesday, August 7, 2002 in a deliberative
meeting between the Ad Hoc Panel of Justices in Central Jakarta with NY. HJ.
MARNI EMMY MUSTAFA, SH. MH as Chief Justice of the Panel, DR. KOMARIAH EMONG
SAPARDJAJA, SH, ROKI PANJAITAN SH, WINARNO YUDHO, SH. MA., RUDI M. RIZKI, SH,
LLM, respectively as Member Justices, which VERDICT was stated on: WEDNESDAY,
August 14, 2002, in a tribunal declared open to the public by the Chief
Justice of the Panel, accompanied by Member Justices, and assisted by M.A.
MUJAHID, SH, and SITI AGUSTIATI DJAMILAH, SH, Substitute Court Clerk Ad Hoc
Human Rights Tribunal and attended by I KETUT MURTIKA, SH, Ad Hoc Public
Prosecutor from the Office of the Attorney General of the republic of
Indonesia, the Accused, and the Legal Counsel Team of the Accused,
Member Justices Chief Justice
Signed signed
DR. KOMARIAH EMONG S. SH NY.HJ. MARNI EMMY MUSTAFA, SH. MH
Signed
ROKI PANJAITAN SH
Signed
WINARNO YUDHO, SH. MA
Signed
RUDI M. RIZKI, SH, LLM
Substitute Court Clerk
Signed
M.A. MUJAHID, SH
Signed
SITI AGUSTIATI DJAMILAH, SH |
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