| |
Full Name: Brig. Gen. TONO SURATMAN
Place of Birth: Makassar
Age/ Date of Birth: 49 years/ September 16, 1952
Sex: Male
Nationality: Indonesian
Religion: Catholics
Address: Jalan Dahlia G. 19, Cijantung II, East Jakarta
Occupation: Member of TNI Army (Former Military Post
Commander of Korem 164/ Wira Dharma,
East Timor)
Education: AKABRI, 1975
SESKOAD, 1991
The Defendant has never been detained;
The Defendant has been represented by the team of Attorneys, consist of: RM.
RAHYONO ABIKUSNO, SH., LL.M., M. RUDJITO, SH., LL.M., AMIR KARYATIN, SH., M.
KAPITRA AMPERA, SH., I.A. SRI UTAMI WIJAYANTI, SH., DR. NIRMALA CHANDRA DEWI
MOTIK, SH., JOAO MECO, SH., HARI MURTI DJOKO PRATOMO, SH., and HARTANTO, SH.,
based on the Special Letter of Power of Attorney (Surat Kuasa Khusus) dated
on July 16, 2002, and the team of Attorneys of the TNI Personnel, consist of:
AB. SETIAWAN, SH., MBA., NURHAJIZAH M. SH., ADNAN MADJID, SH., MH., SUBAGYA
SANTOSA, SH., WIDARSONO, SH., Z. EFFENDI, SH., BAMBANG WIDARTO, SH., MH.,
SUBAGJO, SH., based on Surat Kuasa Khusus dated on July 8, 2002, whose all
from the attorney office on Jalan Denpasar Raya Blok C 17 No. 41-42, South
Jakarta.
The Human Rights Ad. Hoc Court:
After Reading:
1. The Letter of official turning over of Dossier of the Grave Human Rights
violation case with the attachments under the name of Defendant TONO
SURATMAN
2. The Decision (Penetapan) of the Head of the Central Jakarta Human Rights
Ad. Hoc Court No. 10/Pid/HAM.Ad.Hoc/PN.Jkt.Pst. dated on July 2, 2002, on
the Appointment of the Panel of Judges who presided and ruled over the case.
3. The Decision of the Head of the Panel of Judges No. 10/Pid/HAM Ad.Hoc/2002/PN.Jkt.Pst
dated July 9, 2002 on the settlement of the days of court sessions.
After Hearing:
1. The Reading of the Indictment Letter by the Ad. Hoc Public Prosecutor,
Case Reg. Number: 10/HAM/TIM-TIM/07/2002 dated July 6, 2002;
2. The Reading of the Intermediate Decision of the Panel of Judges dated
July 30, 2002, No. 10/Pid.HAM/Ad.Hoc/2002/PN.Jkt.Pst, mainly stated that the
objection of the team of attorneys of Defendant TONO SURATMAN was not
approved and therefore stated that the Central Jakarta Human Rights Ad. Hoc
Court was authorized to rule over the case of the Defendant.
3. The Reading of the Charge (Requisitor) of the Ad. Hoc Public Prosecutor
read on April 14, 2003, which mainly charged the Panel of Judges of the
Human Rights Ad. Hoc Court to make judgment;
3.1. Declare Defendant TONO SURATMAN had legally and convincingly guilty of
committing the crime acts: "as a military commander did not make any control
or prevention for the crime against humanity committed by troops under his
command." As regulated under criminal charges in first charge which violates
article 42 paragraph (1) letter a and b jis article 7b, article 9 letter a,
article 42 paragraph (3), article 37 and the second charge of article 42
paragraph 9 letter a and b jis article 7b article 9 letter h, article 42
paragraph (3), article 40 of Law No. 20/ 2000, on Human Rights Court.
3.2. Sentence Defendant TONO SURATMAN with 10 (ten) years imprisonment.
3.3. Declare the material evidence in the form of copies of Letters to be
presented as material evidence in other cases.
3.4. Sentence Defendant TONO SURATMAN to pay the court financial charges of
Rp. 5,000,- (five thousand rupiahs)
4. The Reading of the Self-Plea (Pembelaan Pribadi/ Self Pledoi) of
Defendant TONO SURATMAN read on April 23, 2003, which mainly stated that
within the condition of civilian order (tertib sipil), in case of internal
conflicts in the society, the responsibilities should be in the hands of the
Police, while TNI should only help when requested. Therefore Defendant TONO
SURATMAN requested the Panel of Judges to observe the problem more clearly
to be able to make judgments based on considerations the inner self of the
members of the Panel of Judges.
5. The Reading of the Plea of the team of Attorneys of Defendant TONO
SURATMAN read on April 23, 2003 which mainly considered that Defendant TONO
SURATMAN was legally and convincingly proven not guilty of committing the
crimes as charged by the Ad. Hoc Public Prosecutor. Therefore the Team of
Attorneys of the Defendant requested the Panel of Judges to:
5.1. Declare Defendant Brigadier General TONO SURATMAN was legally and
convincingly proven not guilty of committing the Grave Human Rights
Violations as stated in the first indictment and the second indictment
cumulatively.
5.2. Declare Defendant TONO SURATMAN free of all indictments.
5.3. Restore the rights of Defendant TONO SURATMAN of his capability,
position, status and dignity.
5.4. Impose the court financial charges to the state.
6. The Replik of the Ad. Hoc Public Prosecutor read on May 1, 2003, which
mainly stated to be persistent of the charges.
7. The Duplik of the Team Of Attorneys of Defendant TONO SURATMAN read on
May 8, 2003, which mainly stated to be persistent of the plea.
Considering that based on the Charges of the Ad. Hoc Public Prosecutor dated
July 16, 2002, No. 10/Pid.HAM/TIM-TIM/07/2002, the Defendant has been
charged as committing grave Human Rights Violations as follows:
ONE
- He, the defendant TONO SURATMAN as Military Post Commander Wira Dharma in
East Timor who was on duty since June 10, 1998 until August 13, 1999, on
April 5, 1999, April 6, 1999 and on April 17, 1999 or at least in April
1999, in Batublete or on the border of Liquisa and Maubara, at Pastor Rafael
Dos Santos' residence in Liquisa Church compound and at Manuel Viegas
Carascalao's residence in Jalan Antonio De Cavalho No. 13, Dilli - all of
the places were located in East Timor under Article 2 PRESIDENTIAL DECREE
No.96/2001 concerning the Changes of PRESIDENTIAL DECREE No. 53/2001 on the
Establishment of Human Rights Ad Hoc Court at the Central Jakarta District
Court which has the authority to preside and rule over grave Human Rights
violations, the defendant TONO SURATMAN as Military Commander in accordance
to the guidance of general Territorial Staff of the Army Headquarters has
the duty and authority to carry out the territorial guidance consisting of
geographical, demography, and social condition guidance as well as has the
responsibility to command and control the security and defense operations
including controlling and inspecting the commands/units under his command
ranks-and-file in order to guarantee the achievement of effective and
successful targets, he, the defendant TONO SURATMAN who was effectively
acted as military commander knew or under the circumstances, should have
known that his troops under his command or control had committed or had just
committed grave Human Rights violation, namely, a crime against humanity by
committing a widespread or systematic attack towards civilians as on April
5, 1999, April 6, 1999 and April 17, 1999 in the form of murder, but the
defendant did not take any proper and required action within his authority
resulting that his subordinates together with pro integration group had
committed an attack towards pro independence group or civilians in Batublete
and resulted in two civilians were dead, the attack on civilians or pro
independence group who were taking shelter in Liquisa Church compound
resulted more or less than 20 people were dead and on civilians who were
taking shelter at Manuel Viegas Carascalao's residence resulted more or less
than 12 people were dead and the defendant TONO SURATMAN did not prevent and
quell the attack or surrender the perpetrators to the appropriate
authorities for investigation, question, and prosecution:
The deeds were done by the defendant TONO SURATMAN in the form of:
Asep Kuswani as Liquisa District Military Commander had reported the clash
between pro-integration group and pro-independence group that happened on
April 4, 5, 6, 1999 in Liquisa to the defendant as his superordinate.
On April 4, 1999 a house belonged to the pro independence group in Pukelara
had been burned, which was committed by pro-integration group, then the pro
independence took a revenge by burning down a house owned by a TNI (Indonesian
Army) officer.
On April 5, 1999 Pro-Integration group masses gathered in Maubara to leave
for Liquisa with an intention to attack pro independence group. The arrival
of the pro integration group was seen by pro independence group. And under
leadership of Jacinto Da Costa Pereira pro independence group intended to
stop the integration group to Liquisa and Maubara border. It turned out
pro-integration group was supported by TNI troops/ Indonesian Police among
others known as Josse Matheus, Tome Diego of District Military Command 1638/
Liquisa equipped with pistols and firearms. More or less than two people
from pro independence were dead in the attack and then pro independence ran
away and took shelter at Pastor Rafael Dos Santos' residence in Liquisa
Church compound. And pro integration masses surrounded the Church compound
bringing firearms, home made firearms, arrow, machetes, samurai, knives and
other kinds of stick.
Based on the report, the defendant TONO SURATMAN on April 6, 1999 has
ordered witness Mujiono as Military Post Deputy Commander together with
Yayat Sudrajat, Commander of Tribuana Task Force to go to Liquisa to check
the situation along with two units of TNI troops and three personnel of
S.G.I Tribuana VIII, when they arrived at Liquisa District Military Command
Headquarters at 1.00 p.m. Eastern Indonesian Time, they met with District
Military Commander, District Police Commander, the Regent and Jhon Rea.
During the meeting, District Military Commander reported that the
negotiation with Pastor Rafael Dos Santos to surrender Jacinto Da Costa and
Gregorio Dos Santos or the leaders of pro independence has failed, because
Pastor Rafael Dos Santos was only wiling to surrender as long as Jacinto Da
Costa Pereira was questioned and brought to the Provincial Police
Headquarters on the grounds that if he was brought to District Police
Headquarters, he would be killed. And based on the report, it was decided
that Regent Leonita Martins was the one who should negotiate and pick up
Jacinto da Costa Pereira, but the Regent did want to do it because he was
afraid that he would be shot or killed by Jacinto Da Costa Pereira. To
replace him, Police Lieutenant 1st Jhon Rea was appointed but before he left
to negotiate and pick up Jacinto Da Costa Pereira, a fire was heard from the
church compound and Pro-integration masses who were supported by around 100
personnel from TNI and Polri (Indonesian Police) among others named:
1. Zakarias (TNI),
2. Manuel Martin (TNI),
3. Tomi Diego (TNI),
4. Alfonso (TNI),
5. Jacob (Polri),
6. Chico (Polri),
Had attacked and opened shots towards refugees from pro-independence group
who were taking shelter inside Pastor Rafael Dos Santos' residence Liquisa
church compound.
As a result of the attack, a number of people from pro independence group
were dead, among others:
1. Jacinto Da Costa Pereira
2. Meriki Dos Santos
3. Agustinho
4. Manuel Lisbra
5. Jisanico
6. Victor Da Costa
7. Abrao Dos Santos
8. Alberto Oliveira
9. Agusto Mouzinho
10. Amandio C. Dos Santos
11. Ameko Dos Santos
12. Cesar Dos Santos
13. Narzisio
14. Jhony Mau Saka
15. Hermina Dos Santos
16. Laurinao Das Santos
17. Fernando Dos Santos
18. Agustino Dos Santos
19. Laurindo Dos Pereira
20. Santiago
On April 17, 1999, starting at 9.00 a.m. Eastern Indonesian Time, in the
courtyard of East Timor Governor, Pam Swakarsa rally was held and attended
by around six hundred participants consisted of Pro-integration group: Besi
Merah Putih (BMP), Aitarak, Mahidi, Darah Merah and Halilintar which was
attended by Governor, District Police Commander and Joao Tavares the
commander of Pro Integration Forces (PPI) acting as the leader of the rally.
In the big rally Eurico Guterres as Deputy Commander of the Pro Integration
Forces as the 2nd speaker and whose speech was broadcast live by Dilli Radio,
gave a "command" that was:
- All CNRT leaders should be exterminated/killed
- People who were pro to independence should be killed
- Kill Manuel Viegas Carascalao
- Carascalao family should be killed
And at around 11. p.m Eastern Indonesian Time after the big rally was over
pro integration masses equipped with home-made firearms, and arrows moved
towards Leandro Isaac's house and destructed Leandro Isaac's house until it
was destroyed and then they headed towards Manuel Viegas Carrascalao's house
which was occupied by around 136 refugees from Maubara, Ainaro, Turiscai,
Alas, Liquisa. When Manuel Viegas Carrascalao and his daughter Maria
Christiana Carrascalao came back from Comoro airport and headed towards
their house had received a phone call from his son Mario Viegas Carrascalao
alias Manelito not allowing his father to return home because the house was
already surrounded by pro integration masses. Based on the report Manuel
Viegas Carrascalao and his daughter went directly to the defendant TONO
SURATMAN's home to report what was happening and also to seek help from the
defendant, but the defendant answered that "TNI is neutral". And then Manuel
Viegas Carrascalao asked for firearms to protect the refugees and the
defendant replied "ask for it from other place".
In the attack pro integration masses which was supported by a number of TNI
troops from Maubara Subdistrict Military Command among others:
1. Jisse Mateus
2. Carlos Amarae
3. Antonio Besikan
4. Baltizar
5. Duarte
6. Theofil
Resulted in more or less than 12 people including Mario Viegas Carrascalao (Manuel
Viegas Carrascalao's son) from pro independence group were dead, among
others:
1. Raul Das Cansela.
2. Crissanto Dos Santos
3. Alberto Dos Santos
4. Alfonso Riberio
5. Pukulario Pereira
6. Eduardo De Jesus
7. Rafael Da Silva
8. Antonio Soares
9. Caesar Dos Santos
10. Joao Dos Santos
11. Agusleno B.X. Lay
12. Mario V. Carascalao
The defendant TONO SURATMAN's deeds was a grave Human Rights criminal
violation ruled and criminally charged under Article 42 paragraph (1) a and
b jis Article 7 b, Article 9 a, Article 42 paragraph (3), Article 37 Law No.
26/2000.
TWO
- He, the defendant TONO SURATMAN as Military Post Commander Wira Dharma in
East Timor who was on duty since June 10, 1998 until August 13, 1999, on
April 5, 1999, April 6, 1999 and on April 17, 1999 or at least in April
1999, in Batublete or on the border of Liquisa and Maubara, at Pastor Rafael
Dos Santos' residence in Liquisa Church compound and at Manuel Viegas
Carascalao's residence in Jalan Antonio De Cavalho No. 13, Dilli - all of
the places were located in East Timor under Article 2 PRESIDENTIAL DECREE
No.96/2001 concerning the Changes of PRESIDENTIAL DECREE No. 53/2001 on the
Establishment of Human Rights Ad Hoc Court at the Central Jakarta District
Court which has the authority to preside and rule over grave Human Rights
violations, the defendant TONO SURATMAN as Military Commander in accordance
to the guidance of general Territorial Staff of the Army Headquarters has
the duty and authority to carry out the territorial guidance consisting of
geographical, demography, and social condition guidance as well as has the
responsibility to command and control the security and defense operations
including controlling and inspecting the commands/units under his command
ranks-and-file in order to guarantee the achievement of effective and
successful targets, he, the defendant TONO SURATMAN who was effectively
acted as military commander knew or under the circumstances, should have
known that his troops under his command or control had committed or had just
committed grave Human Rights violation, namely, a crime against humanity by
committing a widespread or systematic attack towards civilians as on April
5, 1999, April 6, 1999 and April 17, 1999 in the form of abuse, but the
defendant TONO SURATMAN did not take any proper and required action within
his authority resulting that his subordinates together with pro integration
group had committed an attack towards pro independence group or civilians in
Batublete and resulted in 7 civilians were injured, the attack on civilians
or pro independence group who were taking shelter in Liquisa Church compound
resulted more or less than 21 people were dead and on civilians who were
taking shelter at Manuel Viegas Carascalao's residence resulted more or less
than 5 people were dead and the defendant TONO SURATMAN did not prevent and
quell the attack or surrender the perpetrators to the appropriate
authorities for investigation, question, and prosecution:
The deeds were done by the defendant TONO SURATMAN in the form of:
Asep Kuswani as Liquisa District Military Commander had reported the clash
between pro-integration group and pro-independence group that happened on
April 4, 5, 6, 1999 in Liquisa to the defendant as his superordinate.
On April 4, 1999 a house belonged to the pro independence group in Pukelara
had been burned, which was committed by pro-integration group, then the pro
independence took a revenge by burning down a house owned by a TNI (Indonesian
Army) officer.
On April 5, 1999 Pro-Integration group masses gathered in Maubara to leave
for Liquisa to attack pro independence group. The arrival of the pro
integration group was seen by pro independence group. And under leadership
of Jacinto Da Costa Pereira pro independence group stopped the integration
group to Liquisa and Maubara border. It turned out pro-integration group was
supported by TNI troops and Indonesian Police among others known as Josse
Matheus, Tome Diego of District Military Command 1638/ Liquisa equipped with
pistols and firearms. More or less than 2 (two) people from pro independence
were dead in the attack and then pro independence ran away and took shelter
at Pastor Rafael Dos Santos' residence in Liquisa Church compound. And pro
integration masses surrounded the Church compound bringing firearms, home
made firearms, arrow, machetes, samurai, knives and other kinds of stick.
- Based on the report, the defendant TONO SURATMAN on April 6, 1999 has
ordered witness Mujiono as Military Post Deputy Commander together with
Yayat Sudrajat, Commander of Tribuana Task Force to go to Liquisa to check
the situation along with two units of TNI troops and three personnel of
S.G.I Tribuana VIII, when they arrived at Liquisa District Military Command
Headquarters at 1.00 p.m. Eastern Indonesian Time, they met with District
Military Commander, District Police Commander, the Regent and Jhon Rea.
During the meeting, District Military Commander reported that the
negotiation with Pastor Rafael Dos Santos to surrender Jacinto Da Costa and
Gregorio Dos Santos or the leaders of pro independence has failed, because
Pastor Rafael Dos Santos was only wiling to surrender as long as Jacinto Da
Costa Pereira was questioned and brought to the Provincial Police
Headquarters on the grounds that if he was brought to District Police
Headquarters, he would be killed. And based on the report, it was decided
that Regent Leonita Martins was the one who should negotiate and pick up
Jacinto da Costa Pereira, but the Regent did want to do it because he was
afraid that he would be shot or killed by Jacinto Da Costa Pereira. To
replace him, Police Lieutenant 1st Jhon Rea was appointed but before he left
to negotiate and pick up Jacinto Da Costa Pereira, a fire was heard from the
church compound and Pro-integration masses who were supported by around 100
personnel from TNI and Polri (Indonesian Police) among others named:
1. Zakarias (TNI),
2. Manuel Martin (TNI),
3. Tomi Diego (TNI),
4. Alfonso (TNI),
5. Jacob (Polri),
6. Chico (Polri),
Had attacked and opened shots towards refugees from pro-independence group
who were taking shelter inside Pastor Rafael Dos Santos' residence Liquisa
church compound.
As a result of the attack, as many as 21 people from pro independece group
were injured:
1. Fransisco Das Santos.
2. Jisao Dos Santos.
3. Jisao Pereira.
4. Jisao Kuda.
5. Jisamico.
6. Armando.
7. Jisse Ramos.
8. Antonio.
9. Jisse Nunes Serrao.
10. Luis.
11. Lucas Soares.
12. Emilo.
13. Matheus Paniero.
14. Sebastian.
15. Lucas Dos Santos.
16. Ramirio.
17. Ricardo Rodriques Pereira.
18. Mathius Alves Coreira.
19. Lakumao.
20. Felis.
21. Junuari.
One person from TNI troops was injured, named 2nd Sergeant Sofyan SGI
Tribuana VIII.
On April 17, 1999, starting at 9.00 a.m. Eastern Indonesian Time, in the
courtyard of East Timor Governor, Pam Swakarsa rally was held and attended
by around six hundred participants consisted of Pro-integration group: Besi
Merah Putih (BMP), Aitarak, Mahidi, Darah Merah and Halilintar which was
attended by Governor, District Police Commander and Joao Tavares the
commander of Pro Integration Forces (PPI) acting as the leader of the rally.
In the big rally Eurico Guterres as Deputy Commander of the Pro Integration
Forces as the 2nd speaker and whose speech was broadcast live by Dilli Radio,
gave a "command" that was:
- All CNRT leaders should be exterminated/killed
- People who were pro to independence should be killed
- Kill Manuel Viegas Carascalao
- Carascalao family should be killed
And at around 11. p.m Eastern Indonesian Time after the big rally was over
pro integration masses equipped with home-made firearms, and arrows moved
towards Leandro Isaac's house and destructed Leandro Isaac's house until it
was destroyed and then they headed towards Manuel Viegas Carrascalao's house
which was occupied by around 136 refugees from Maubara, Ainaro, Turiscai,
Alas, Liquisa. When Manuel Viegas Carrascalao and his daughter Maria
Christiana Carrascalao came back from Komoro airport and headed towards
their house had received a phone call from his son Mario Viegas Carrascalao
alias Manelito not allowing his father to return home because the house was
already surrounded by pro integration masses. Based on the report Manuel
Viegas Carrascalao and his daughter went directly to the defendant's home to
report what was happening and also to seek help from the defendant, but the
defendant TONO SURATMAN answered that "TNI is neutral". And then Manuel
Viegas Carrascalao asked for firearms to protect the refugees and the
defendant replied "ask for it from other place".
In the attack pro integration masses which was supported by a number of TNI
troops from Maubara Subdistrict Military Command among others:
1. Jisse Mateus
2. Carlos Amarae
3. Antonio Besikan
4. Baltizar
5. Duarte
6. Theofil
Resulted in more or less than 5 people were injured:
1. Florindo Da Jesus.
2. Victor Dos Santos (Apin).
3. Niki.
4. Jisao Junior.
5. Betinho Mbuguegue.
The defendant TONO SURATMAN's deeds was a grave Human Rights criminal
violation ruled and criminally charged under Article 42 paragraph (1) a and
b jis Article 7 b, Article 9 h, Article 42 paragraph (3), Article 40 Law No.
26/2000.
Considering making a concise explanation on the Judgment, the Panel of
Judges did not include all the testimonies of the witnesses contained in the
Court's Deposition Document (Berita Acara Persidangan), the Panel of Judges
would only presented the main parts of the testimonies related to the
charges of the Ad. Hoc Public Prosecutor, as follows:
The facts revealed in court based on the testimonies of the witnesses who
gave their testimonies under oath:
1. Witness Col. Inf. MUDJIONO
In the examination in court, the witness gave his testimonies under oath,
and mainly explained as follows:
- It is true that the witness has known Defendant TONO SURATMAN and had
occupied the post of WADANREM (Deputy Commander of the Military Post) 162/Wira
Dharma, East Timor started on June 5, 1998, up to May 13, 1999;
- It is true that Liquisa case was the last part of a chain of previous
incidents, which peaked on April 6, 1999, at the residence of Pastor RAFAEL
DOS SANTOS in Liquisa Church Compound.
- It is true that the witness was ordered by Defendant TONO SURATMAN to
check the incident on the afternoon of April 5, 1999 but departed on April
6, 1999 instead;
• That the incident happened sporadically, a few seconds after JOHN REA left
for renegotiation, after hearing the sound of gunshots;
- That Liquisa case was a conflict between the Pro-Independence and the
Pro-Integration;
- That the witness did not give orders to disarm or disperse the
Pro-Integration people who surrounded the residence of Pastor RAFAEL DOS
SANTOS in Liquisa Church Compound.
- That the witness did not know whether there were TNI soldiers involved as
TNI had been assigned to only back-up POLRI;
- That Defendant TONO SURATMAN, after the incidents, gave instructions to
DANDIM (Military District Commander) of Liquisa and the witness to take care
of the wounded victims, safe Pastor RAFAEL DOS SANTOS, and secure the
refugees.
- That during the riot in Liquisa mentioned by the Police and BRIMOB (Mobile
Brigade), Defendant TONO SURATMAN's orders to the witness was to aid the
police.
- That the distance between the Liquisa MAKODIM (Military District
Headquarters) and the residence of Pastor RAFAEL DOS SANTOS was more or less
than 50 meters;
- The witness knew because he received reports from DANDIM of Liquisa, that
in the incident, there were the wounded and five people were dead.
- That Liquisa KODIM provided aids of logistics to the Pro-Independence who
were rescued and provided medications for the wounded at MAKODIM.
- That the incident on April 17, 1999 at the residence of MANUEL VIEGAS
CARASCALAO, the witness heard the report of DANDIM of Dilli, and at the time
the witness was at Liquisa;
- That during the incident in Liquisa or at the residence of MANUEL VIEGAS
CARASCALAO, Defendant TONO SURATMAN was in Dilli and there were no
involvement of TNI members in both incidents;
- That during the incident at the residence of MANUEL VIEGAS CARASCALAO
based on the report of the DANDIM of Dilli, Lieut. Col. ENDAR PRIYANTO, the
number of the dead victims were twelve people after their arrival at the
hospital.
- The background of the incident was due to the two conflicting powers of
the Pro-Integration and the Pro-Independence groups;
- That TNI, in the framework of territorial accommodation of the people did
not take side with any of the groups.
- That TNI had several times facilitated activities of reconciliation among
the conflicting parties such as the DARI I and DARE II meetings;
- That Defendant TONO SURATMAN had distributed pocket books on Guidelines of
Exercising Human Rights (Petunjuk Penyelenggaraan HAM) to all members of TNI
on assignments in East Timor;
- That KOREM had no authorities to issue permits on festivities.
- That on the testimony of the witness, Defendant TONO SURATMAN had no
objection;
2. Witness AKBP ADIOS SALOVA
In the court examination, the witness gave his testimony under oath, and
mainly explained as follows:
- The witness knows Defendant TONO SURATMAN, has no family relationship, and
had been assigned as KAPOLRES (District Police Commander) of Liquisa since
the end of June, 1998 until the early July 1999;
- That on April 4, 1999 there was an incident in Pukelara Village (clashes
of people), but was settled/ reconciled by the KAPOLRES and DANRAMIL (Sub-district
Military Commander);
- That on April 5, 1999, the Pro-Independence group led by JACINTO DA COSTA
threatened members of the police at the scene of the crime (TKP), and then
ran away to seek protection in the residence of Pastor RAFAEL DOS SANTOS;
- That on April 6, 1999, the witness received a phone call from Pastor
RAFAEL DOS SANTOS who reported that there were many people surrounding the
pastoral who made attacks into the residence of Pastor RAFAEL DOS SANTOS,
then the witness ordered KASAT SABHARA to go to the pastoral to negotiate
instructions to the perpetrators of the riot to give in to the authorities;
- That the witness ordered JOHN REA to make negotiations with Pastor RAFAEL
DOS SANTOS to hand over JACINTO DA COSTA but Pastor RAFAEL refused because
he was afraid of being killed;
- That the witness heard gunshots coming from the pastoral house;
- That the witness never issue a warrant for the arrest of JACINTO DA COSTA,
because the process was long and complicated and required a preliminary
report from the police;
-• That the isolation surrounding the pastoral compound of more or less than
100 personnel consisted of one platoon of BRIMOB and more or less than 40
members of POLRES and TNI officers.
- That the witness was summoned by DANDIM at KODIM and on his arrival at
KODIM there were already present; WADANREM, DANREM, the Regent and the
Pro-Integration represented by EURICO GUTERRES;
- That the ability of the witness to secure the TKP was limited, therefore
required aids of TNI officers;
- That the incidents on April 4, 5 and 6, 1999, were due to the problems on
maintaining the security and order under the authority of POLRI;
- That there were no preliminary information on the occurring clashes on
April 6, 1999;
- That Defendant TONO SURATMAN said no objection on the testimonies of the
witness;
3. Witness Lieut. Col. Infantry ASEP KUSWANI
In the court examination, the witness gave his testimonies under oath, and
mainly explained as follows:
- It is true that the witness had been assigned in East Timor as DANDIM of
Liquisa started on September 1997 through September 1999;
- It is true that the witness, during the incident of attacks to the
residence of Pastor RAFAEL DOS SANTOS in Liquisa Church Compound on April 6,
1999, was assigned as DANDIM 1638 of Liquisa with duties to maintain the
stability of security and territorial establishment;
- It is true that the incident on April 6, 1999 according to the witness, is
the conflicts between the two groups of Pro-Integration and Pro-Independence
resulting in five people were dead and more or less than twenty-five people
wounded, due to the attacks using guns.
- That on April 5, 1999 there were the destructions and burnings in the
villages of Pukelara and kidnappings, and kidnappings committed by the
Pro-Independence (CNRT) which were then overcome by the security officials;
- That the witness clarified that there were no members of KODIM who were
involved in the clashes at the residence of Pastor RAFAEL DOS SANTOS, they
were, instead, made preventive measures and accommodated the clash victims.
- That the witness refused the opinion that TNI had let the incident to
happen, because the witness knew that TNI made preventive measures;
- It is true that in the witness opinion, there were no TNI members involved
in the clashes, TNI personnel in MAKODIM were always ready to help the
police when asked;
- That the incidents on April 4,5 and 6, 1999 in the residence of Pastor
RAFAEL DOS SANTOS in Liquisa Church compound had been reported to DANREM
through verbal report (telephone), prior to the written report;
- It is true that SGI TRIBUANA VIII personnel replacements after the month
of May 1999 included as many as four people and they were done under the
authority of the commander;
• That the visit of the Inspector General of the Indonesian armed forces
ABRI to Liquisa was to prove whether or not there were soldiers involved,
the fact was that there were no soldiers involved;
- That the ones who saved Pastor RAFAEL DOS SANTOS were members of KODIM;
- That KAPOLRES visited MAKODIM to request security back-ups;
- That FALINTIL and CNRT were the Pro-Independence groups;
- It is true that Defendant TONO SURATMAN had no objection on the
testimonies of the witness
4. Witness MANUEL VIEGAS CARASCALAO
In the court examination, the witness gave the testimonies under oath, and
mainly explained as follows:
- That the witness knows Defendant TONO SURATMAN as DANREM;
- That the witness was a former member of the Provincial Legislative Council
DPRD of East Timor province and then joined the Pro-Independence
organization;
- That the witness' residence prior to the incident of April 17, 1999 had
been used to shelter as many as one hundred and thirty-six people of the
Pro-Independence groups;
- The witness said that the reason of attacks to his home was because his
residence was used as a place to protect people who ran away from threats by
the Pro-Integration groups from their areas;
-• The witness knew that his house was under attacks by the Pro-Integration
groups and reported straight to Defendant TONO SURATMAN to ask for
assistance and asked for guns to defend the refugees;
- That due to the attacks on April 17, 1999, to the witness' residence, the
number of refugees formerly one hundred and thirty-six people, were only
sixty people left, according to the witness, the rest were probably dead,
wounded or missing, and the result of the attacks was that the house and its
contents were completely destroyed and lost;
- It is true that one of the dead victims resulting from the attacks was the
witness' son named MARIO MANUEL VIEGAS CARASCALAO alias MANUELITO;
- That the witness did not know whether the attacks on his house were ceased
by TNI/ Police personnel;
- That Defendant TONO SURATMAN had no objection over the testimonies of the
witness, except on the part related to the request of guns;
5. Witness Police First Lieut. JOHN REA
In the court examination, the witness gave his testimonies under oath and
mainly explained as follows:
- It is true that the witness knows Defendant TONO SURATMAN, but has no
family relationship.
- It is true that at the time of the attacks on Liquisa Church Compound, the
witness had been assigned as KAPUSKODAL OPS in POLRES Liquisa who was
responsible on the control of police operations in POLRES Liquisa
jurisdiction;
- It is true that the witness in carrying out his duties was in coordination
with TNI officials;
• That it is true that the reasons of the attacks were because prior to that
incidents on April 4 and 5, 1999 there were destructions, burnings and
abuses by the Pro-Independence groups on the Pro-Integration people. The
Pro-Independence groups was led by JACINTO DA COSTA (Dato village chief);
- It is true that after the incident JACINTO DA COSTA and his friends ran
and seek protection at the residence of Pastor RAFAEL DOS SANTOS and the
Pro-Integration party had asked Pastor RAFAEL to let JACINTO DA COSTA
surrender;
- That the witness saw both groups carried homemade firearms, bows and
arrows, and lances;
- That the witness had been assigned by KAPOLRES of Liquisa to negotiate
with Pastor RAFAEL to hand over JACINTO DA COSTA for investigation;
- That POLRI, prior to the incident had secured the area surrounding the
residence of Pastor RAFAEL DOS SANTOS by adding thirty personnel (one
platoon) led by FRANS SALAMALI;
- It is true that for the surrender of JACINTO DA COSTA, Pastor RAFAEL
proposed prerequisites:
1. Approved the surrender of JACINTO DA COSTA to POLDA instead, and had
guarantee of his safety;
2. Requested the Red and White Iron (BMP) masses to be immediately withdrawn/dispersed;
- The prerequisites were finally approved and when the witness got
instructions from WADANREM to extend the information to Pastor RAFAEL,
suddenly there were shots from automatic guns, coming from unclear
directions, which then followed by spontaneous attacks of BMP people onto
the residence of Pastor RAFAEL DOS SANTOS in Liquisa Church Compound;
- That the result of the attacks were that five unidentified people died,
and after visum et repertum examinations were buried in Maubara burials;
- That the isolation measure separating the two groups had been done by
BRIMOB and POLRI, while TNI members were standing by at KODIM office for
closed security measures;
- That the witness was telling the truth on the numbers of Police and TNI
personnel were far below that of the power of the masses;
- That the situation changed rapidly so that it was impossible to request
more back-up troops;
- After the incident on April 6, 1999 the witness helped investigating the
scene of the crime (TKP SERSE) on April 7, 1999, and the witness knew that
KAPOLDA (Provincial Police Commander), DANREM, and Bishop BELO were present
for a visit to the TKP;
- It is true that Defendant TONO SURATMAN had no objection on the
testimonies of the witness;
6. Witness Second Lieut. DAMIANUS DAPA
In the court examination, the witness gave his testimonies under oath, and
mainly explained as follows:
- It is true that the witness knows Defendant TONO SURATMAN, but has no
family relationship;
- That the witness, during the attacks on the residence of Pastor RAFAEL DOS
SANTOS at Liquisa Church Compound on April 6, 1999, was on duty as KASAT
SABHARA of POLRES Liquisa;
- It is true that the witness had orders from KAPOLRES of Liquisa to apply
security measures surrounding the residence of Pastor RAFAEL DOS SANTOS to
prevent attacks by BMP groups on the masses of the Pro-Independence groups
sheltering inside the residence of Pastor RAFAEL DOS SANTOS;
- That in relation to the task, the witness had received orders from
KAPOLRES to make negotiations to overcome problems among the two groups;
- That the Pro-Integration group threatened to attack Liquisa Church
Compound, if JACINTO DA COSTA from the Pro-Independence group refused to go
out, and therefore the witness called out the Pro-Integration not to make
the attacks;
- That the witness said there were around three hundred people surrounding
the pastoral compound, but the witness did not know from which group they
came from;
- That Pastor RAFAEL, though had been ensured by the witness on the safety
of JACINTO DA COSTA, but Pastor RAFAEL still refused to hand over JACINTO;
- That on April 6, 1999 the witness heard of occurring fights among the
groups of people in the pastoral residence of Pastor RAFAEL DOS SANTOS, and
the witness heard of the five dead victims;
- That Defendant TONO SURATMAN had no objections on the testimonies of the
witness;
7. Witness FRANS SALAMALI
In the court examination, the witness gave his testimonies under oath and
mainly explained as follows:
- The witness knows Defendant TONO SURATMAN, but has no family relationship;
- That on April 5, 1999 the witness as the DANTON (Platoon Commander) had
orders to depart for Liquisa due to the occurring turmoil;
- That the witness went on duty with one platoon (thirty people), equipped
with standard armaments (SKS) and tear gas, and then on April 6, 1999 was
ordered to secure and stand by at the residence of Pastor RAFAEL DOS SANTOS,
and at around 7 a.m. WITA (Central Indonesia Time) they were already
standing on guard in the premises of Liquisa Church Compound to secure the
residence of Pastor RAFAEL DOS SANTOS;
- That the witness, together with JOHN REA,reported the results of the
negotiation with Pastor RAFAEL to KAPOLRES, and KAPOLRES went straight to
KODIM and there were no further instructions until the time of the attacks;
- That the officials on guard at the residence of Pastor RAFAEL DOS SANTOS,
according to the witness were members of BRIMOB and POLRES while other
officials were not present, and their numbers were inadequate;
- That the incident at the residence of Pastor RAFAEL DOS SANTOS in Liquisa
Church Compound caused five people dead, based on the information received
by the witness, and KAPUSKODAL OPS, JOHN REA;
- That the witness saw no TNI officers that joined in the attacks into the
Liquisa Church Compound.
- That the witness ordered to shoot the tear gas upwards, and causing the
masses inside the residence of Pastor RAFAEL DOS SANTOS rushing out, and
some of them crying;
- That Defendant TONO SURATMAN had no objection on the testimonies of the
witness;
8. Witness ALFREDO SANCHES
In the court examination, the witness gave his testimonies under oath and
mainly explained as follows:
- It is true that on April 17, 1999 the witness was present at the residence
of MANUEL VIEGAS CARASCALAO to seek refuge because he was chased by the
Pro-Integration groups;
- It is true that TNI and the Pro-Integration group attacked the residence
of MANUEL VIEGAS CARASCALAO;
- That all members of TNI who attacked the residence of MANUEL VIEGAS
CARASCALAO were from KORAMIL (Sub-district Military Command) of Maubara;
- That after the rally at the Governor's office was over, they (TNI and the
Pro-Integration group) went into the house of MANUEL VIEGAS CARASCALAO,
trashed the entrance door of the house then entered the house, the witness
ran to the back of the house, and hid onto bamboos, but he was spotted by
two men from the Pro- Integration, the witness was then gashed with a dagger
by MATHEUS (Militia);
- That the witness knew of the big rally through the radio in the residence
of MANUEL VIEGAS CARASCALAO;
- It is true that the witness showed the wounds on his body consisted of two
scars of shot wounds, one scar of arrow wound, and a scar from a cut of a
dagger;
- That the witness saw no security officials were present around the
residence of MANUEL VIEGAS CARASCALAO;
- That the witness estimated that the numbers of people who attacked more or
less than two hundred people;
- That based on the information received by the witness and the other
refugees, the number of refugees who died in the incident were twelve people,
and the witness did not know where they were buried;
- That Defendant TONO SURATMAN said that the witness testimonies were not
true;
9. Witness FLORINDA DE JESUS
In the court examination, the witness gave testimonies under oath, and
mainly explained as follows;
- That the witness had stayed in the residence of MANUEL VIEGAS CARASCALAO
since January 1999;
- That the witness on April 17, 1999 was present at the house of MANUEL
VIEGAS CARASCALAO, and saw the attacks on the house of MANUEL VIEGAS
CARASCALAO committed by more or less than 200 people consisted of Militia (BMP
and AITARAK), assisted by TNI;
- It is true that the witness recognized TNI members; they were ANTONIO
BESIKAU, CARLOS AMARAL, THEOFILO, JOSE MATHEUS BALITZAR, ANTONIO GOMES, and
MEQUEL;
- It is true that they trashed the door with a blue Kijang car but the door
was not opened then they came back with a yellow truck and the door was
opened.
- It is true that when the gate was hit by a truck, the witness was present
in front of the house inside the front yard;
- That the witness suffered cut wounds caused by slashed of machetes, and
showed the wound marks which left long stitched scars along the right side
of the back through the left side of the ribs; the right hand that was
paralyzed because of the peeled-off meat in the area, and its fingers that
could not be used normally;
- That the witness said that the dead victims in the incident on April 17,
1999 were twelve people, while the wounded were four people;
- That the witness, during the attacks, was lying down in a nap when the car
broke in, the witness ran to the back, climbed the wall, and stood there on
the fenced wall for around 2 to 3 hours;
- That according to the witness, the one who got shot was EDUARDO DE JESUS
and ALFREDO SANCHES;
- That the witness, when wounded and unconscious was helped by BRIMOB and
the Red Cross, and was brought to Wira Dharma hospital, which was the army
hospital and was treated there for three days.
- The witness admitted as a member of CNRT and the witness' friends from
Maubara did not aware that such action (?) was against the law of the
legitimate RI government;
- That Defendant TONO SURATMAN declared he could not accept the testimonies
of the witness;
10. Witness JOAO DA SILVA TAVARES
In the court examination, the witness gave the testimonies under oath and
mainly explained as follows:
- It is true that the witness was the former Commander of the
Pro-Integration of East Timor, and the witness knows Defendant TONO SURATMAN
as a friend;
- That the witness was present at the big rally on April 17, 1999 was
invited by EURICO GUTERRES to become the inspector of the ceremony, but did
not know the purpose;
- That among the people present at the big rally, some carried homemade
firearms, and the number of people who were there more or less than five
thousands;
- That the witness did not see Defendant TONO SURATMAN present in the rally,
and neither his deputy or other TNI members;
-• That the witness did not know about the attacks on the residence of
MANUEL VIEGAS CARASCALAO, because when the rally was over, the witness went
straight home to Maubara;
- That during the big rally, the witness, as the inspector made the speech
which mainly emphasized the need to have the spirit of love for the country,
and the witness did not listen to the speech of EURICO GUTERRES about the
threatening to kill CARASCALAO family which was broadcasted through state
radio station RRI in Dilli;
- The witness has had a good relationship with MANUEL VIEGAS CARASCALAO, and
the witness said that the man had been a member of the Legislative Council
DPR for twenty years after the integration of East Timor with RI;
- That the witness, who has been also a member of KPS chaired by DJOKO
SUGIANTO;
- That Defendant TONO SURATMAN had no objection over the testimonies of the
witness;
11. Witness Lieut. Col. Infantry ENDAR PRIYANTO
In the court examination, the witness gave the testimonies under oath, and
mainly explained as follows:
- That according to the witness, in performing its duties, TNI organized
territorial operations, and such operations in East Timor were called TATOLI
Operations. Besides that, there were other operations of maintaining
security and order, performed by POLRI;
-•That the ones who were responsible in TATOLI operations was DANREM, and in
the TATOLI operational organization, DANDIM was the Commander of the
Sub-sector of the operation, and KAPOLRES was the Deputy Commander of the
Sub-sector of the operation;
- That in the case of attacks on the house of MANUEL VIEGAS CARASCALAO,
according to the witness, was included in the operations in maintaining
security and order, and not territorial operations;
- That at the time of the big rally of PAM SWAKARSA, the witness was not
present, but the officials of the closed-security operations were assigned
at the location, and later reported to the witness, then the witness
reported further to Defendant TONO SURATMAN, through verbal reports, as well
as written ones;
- That according to the witness, since the announcement of the option by the
Minister of Foreign Affairs ALI ALATAS, the clashes between the opposing
groups spread out, and become more critical;
- That Defendant TONO SURATMAN had no objections over the testimonies of the
witness;
12. Witness EURICO GUTERRES
In the court examination, the witness gave the testimonies under oath and
mainly explained as follows:
- That the witness on April 6, 1999, was in Liquisa on the request of Bishop
BELLO to become the mediator in negotiations with Pastor RAFAEL DOS SANTOS,
to settle the conflicts between the Pro-Independence and the Pro-Integration
groups, in which JACINTO DA COSTA and his friends from the Pro-Independence
group seeking protection inside the residence of Pastor RAFAEL in Liquisa
Church Compound;
- That the witness carried out the task, on April 6, 1999 by having a
meeting with Pastor RAFAEL and he was received in the churchyard. When the
witness came, around the church, gathering masses yelled that JACINTO was
inside carrying guns;
- That when the witness came to meet Pastor RAFAEL, he saw the police and
TNI troops were present around the church premises performing security
measures;
- That the witness, as the negotiator, failed because Pastor RAFAEL refused
to hand over JACINTO and his friends, and he planned to report it to Bishop
BELLO, but canceled his plan after he met WADANREM and other officers on the
way;
- That the witness knew that WADANREM 164/Wira Dharma, at the time of the
clashes between the Pro-Integration and the Pro-Independence groups, was in
Liquisa, but the witness did not aware that there were orders of preventive
measures, and also did not aware/know whether there were TNI members being
investigated;
- That according to the witness, the organizing committee of the big rally
of PAM SWAKARSA on April 17, 1999 was the Local Government, and the witness,
in the occasion, was only an invitee, and denied contacting JOAO DA SILVA
TAVARESA to attend the big rally to become the ceremonial inspector in the
rally;
- That according to the witness, the big rally was attended by around four
thousand people, and it was attended by only the Pro-Integration groups, and
the rally was guarded by security officials, and preventive measures were
also applied during the convoys of processions after the rally;
- That Defendant TONO SURATMAN had no objections on the testimonies of the
witness;
13. Witness Inspector Gen. Police Drs. G.M. TIMBUL SILAEN
In the court examination, the witness gave testimonies under oath and mainly
explained as follows;
- That the relation of the two activities was coordinative. KAMTIBMAS (the
security and order maintenance) task force with the implementation of
orderly community and law enforcement within critical regions that could not
be maintained by the police, were performed by TNI with territorial
operations (TATOLI Operations);
- That to make effective coordination, KAPOLRES, within the structural
organization of TATOLI operations, occupied the post of Deputy Commander of
the Sub-sector of TATOLI Operations, and DANDIM was the Commander of the
Sub-sector of TATOLI Operations;
- That according to the witness, there were specific characteristics of East
Timor as a Military Operation Area (DOM), among others, in the structural
organization of KOREM, in addition to KOREM having a WADANREM, there were
special divisions of East Timor regions such as Sector A and Sector B, each
of which, led by a Colonel. Due to the specific characteristics, TNI in East
Timor had extensive authority to implement security measures;
- That for the big rally of PAM SWAKARSA on April 17, 1999 in Dilli, there
were no special security measures;
- That according to the witness, the clashes of the two groups had been
going since 1976, but had not been crystallized in forming organizations
with specific names. Before April 1999, the condition of East Timor started
to become critical with many forced evictions of non-native residents
including the civilian officials. Due to the lack of staff, many of TNI
members, besides having main duties, also carrying out non-military tasks;
- That Defendant TONO SURATMAN had no objections over the testimonies of the
witness;
14. Witness Maj. Gen. ADAM DAMIRI
In the court examination, the witness gave testimonies under oath, and
mainly explained as follows:
- It is true that the witness knows Defendant TONO SURATMAN, but had no
family relationship;
- It is true that the witness explained about two KOREM commanders under his
command, who were Defendant TONO SURATMAN, then replaced by Col. NUR MUIS;
- It is true that after the first option and the second option, further
policy was the signing of Tri-partite Agreement on May 5, 1999;
- It is true that the implementation of the Tri-partite Agreement was the
responsibility of the police;
- It is true that on April 6, 1999, there were reports saying there were
mass turmoil at the residence of Pastor RAFAEL DOS SANTOS resulting in five
people dead, twenty people wounded, and the problem was settled by DANREM as
DANREM had assigned WADANREM to go to the location, and Pastor RAFAEL could
be evacuated to safety;
- It is true that the witness knew of the Liquisa incident through telephone
reports from DANREM and before the incident, there were reports related to
later incidents;
- It is true that on April 17, 1999 the witness was in Denpasar, while on
April 18, 1999 the witness went to Dilli to check the incident;
- It is true that on April 18, 1999 the witness was ordered by ABRI
Commander to go to East Timor to gather leaders of the Pro-Integration and
the Pro-Independence groups to seek agreements to reach reconciliation for
the conflicting parties on April 19, 1999;
- It is true that the security operations in the area had been the
responsibilities of the witness, but not included the clashes at the
residence of MANUEL VIEGAS CARASCALAO, because they were committed by
civilians, who were the responsibilities of the police;
- It is true that in the Liquisa case, TNI had made checks on the incident,
if the preventions were not executed, there would be many more casualties;
- That the handing over of firearms before the popular consultation/ ballot
were implemented by many of the Pro-Integration groups, while the
Pro-Independence refused to hand over their guns;
- It is true that on April 17, 1999, the incident at the residence of MANUEL
VIEGAS CARASCALAO caused twelve people dead, and Liquisa case on April 6,
1999, caused five dead people;
- It is true that every time the witness made checks to DANREM on the
incidents, was always answered as under control;
- It is true that the witness explained about several-time changes of KODAL
commands, started in prior to the Tri-partite Agreement (May 5, 1999) to the
Army Commander/ PANGADAM (sic), after May 5, 1999, to the police (KAPOLDA),
and returned back after the popular consultation/ ballot on September 6,
1999, at 24.00 midnight WITA, under PANGDAM;
- It is true that STR signed by the witness' assistant Col. BUDI, explained
that the witness reported to PANGDAM, then formed an investigation team from
TNI Headquarters (MABES), to check on Liquisa incident, and the result was
that there were no TNI members involved;
• That Defendant TONO SURATMAN said no objections over the testimonies of
the witness;
15. Witness Gen. (Purn.) WIRANTO
In the court examination, the witness gave testimonies under oath, and
mainly explained as follows:
- It is true that the witness knows Defendant TONO SURATMAN and has no
family relationship;
- It is true that before retirement, the witness occupied the post as
Minister of Defense and Security (MENHANKAM), and after retirement occupied
the post of Coordinating Minister for Political, Social and Security Affairs
(MENKO POLSOSKAM);
- It is true that there had been a rising escalation after the announcement
of the options, within the Pro-Independence, as well as the Pro-Independence
(sic!) groups;
- It is true that the noticeable cases included the clashes happened on
April 4, 5, and 6, 1999, in Liquisa, and on April 17, 1999 in the house
MANUEL VIEGAS CARASCALAO;
- It is true that the Liquisa problem was quite important because there were
dead casualties. MABES TNI sent an investigation team led by an Inspector
General from MABES TNI, Vice Admiral Tamtama (Laksdya) ADI to conduct the
investigation;
- It is true that the Liquisa case was handled under KODIM/POLRES levels,
and MABES TNI would not intervene over matters in the lower levels;
- It is true that the witness explained the chronology of the incidents of
April 4, 5 and 6, 1999, in Liquisa in which there were conflicts between the
Pro-Integration and the Pro-Independence groups;
- It is true that there was a TNI member, ranked Sergeant, among the victims,
who got shot from shots coming from the direction of the residence of MANUEL
VIEGAS CARASCALAO, there were also civilian victims;
- It is true that the incident in MANUEL VIEGAS CARASCALAO house caused
twelve people died, which was reported to the witness, due to conflicts
between the Pro-Integration and the Pro-Independence groups;
- It is true that after the second option to choose independence forwarded,
there was rising escalation, conflicts occurred, TNI specifically made
prevention by sending battalions (seven battalions) or approximately seven
thousand personnel;
- It is true that the responsibilities of the respective POLRI and TNI were
clear, POLRI maintain the security and order (KAMTIBMAS), while TNI was in
the defense sector;
- It is true that prior to the incidents in Liquisa and MANUEL VIEGAS
CARASCALAO house, there were orders from the witness to make precautions to
prevent such incidents from spreading, in written orders, and the witness
had tried to find them;
- It is true that before the options on the principal change of policies, it
was ABRI to act neutral to capture as many GPK (Separatist Movements), and
after the options, ABRI maintained its neutrality by standing in between the
conflicting parties to promote reconciliation;
- It is true that the existing cases, according to the witness, should be
followed up with measures to prevent them from spreading, and the actors
were legally processed;
- It is true that the witness was persistent in his testimonies in BAP, on
question over who was more dominant in TATOLI operations, whether it was TNI
or POLRI, the witness suggested that they should not be entrapped on who was
the commander, they should be consistent with the job description that the
state security operations (KAMDAGRI) were under POLRI, while the security
and defense operations were under TNI;
- It is true that the incidents in Liquisa and in MANUEL VIEGAS CARASCALAO
house were about attacks on each other;
- It is true that there were no policies of orders to attack civilians
during the POLSOSKAM meeting; the witness, at the time, was only a member,
as MENHANKAM PANGAB;
- It is true that the Contingency Plan meant anticipation to the worst
situation (it applies to all military forces throughout the world). The
witness could not remember the orders toward the functions of each
institution;
- That Defendant TONO SURATMAN had no objections over the testimonies of the
witness;
16. Witness ALI ALATAS S.H.
In the examination of the court, the witness gave testimonies under oath and
mainly explained as follows:
- It is true that according to the witness, in the month of June 1998, the
president and his cabinet approved the proposal over East Timor to be given
special status with extensive autonomy. The proposal was well received by
the United Nations (UN), but Portugal approved with conditional requirements,
they would become the temporary settlement, and gave the freedom of choice
to the people of East Timor;
- That the consideration behind the birth of the Option II policy was the
high financial cost of East Timor related to the ongoing monetary crisis,
and an estimation in the Plenary Cabinet Meeting, that the Pro-Integration
group would have won;
- That the Option II policy was meant to settle the East Timor issue, to be
legally accepted in the national, as well as international levels;
- That the East Timor problem had been in the spotlight and had become the
target of criticism from inside, as well as outside the country, the
accusations toward Indonesia was, at first, an act of what was called as an
annexation (invasion) to a small country, but it was then changed to Human
Right violations;
- That according to the witness, the attacks on Liquisa Church and the house
on April 6, 1999 and the attacks on MANUEL VIEGAS CARASCALAO house in Dilli
on April 17, 1999 led to reactions from Portugal government and UN. The
problems had been widespread through the press and NGOs. The incidents had
become the agenda in the state's Politics and Security Meeting;
- That according to the witness, the proposal of settlement on East Timor
with the policy of granting the special status of having extensive autonomy,
led to the opinion that the Pro-Independence party felt they had won, and
all that led to riots and terror;
- That in April, POLRI was still a part of ABRI;
- That Defendant TONO SURATMAN had no objections over the testimonies of the
witness;
17. Witness DJOKO SUGIANTO, S.H.
In the court examination, the witness gave testimonies under oath, and
mainly explained as follows;
- It is true that the witness, as the chief of KOMNAS HAM (the National
Commission on Human Rights), on April 17, 1999, visited East Timor to
establish the Independent Commission of Human Rights of Timor Lorosae (KIHAMTIL),
related to the heating up situation after the Option II;
- That upon the arrival in Dilli, and just arrived at the hotel, saw a
parade passing the street, followed by masses, some of whom, carried guns
with unclear specifications, and some of them were in uniforms. Then the
witness was informed that people were parading after attending a big rally
of PAM SWAKARSA, in front of the Governor's office, then they made the
attacks and destructions on the residence of MANUEL VIEGAS CARASCALAO and
the office of the local newspaper SUARA TIMOR TIMUR (Voice of East Timor);
- That in the attacks on MANUEL VIEGAS CARASCALAO house, there were twelve
people died, they were all the Pro-Independence members, including MARIO
MANUEL VIEGAS CARASCALAO, alias MANILETO (sic) (the son of MANUEL VIEGAS
CARASCALAO);
- It is true that Defendant TONO SURATMAN had no objections over the
testimonies of the witness;
18. The testimonies of the witnesses who were not present were read in court.
(Contained in the Interrogation Deposition Documents (Berita Acara
Penyidikan/ BAP)
1. RAFAEL DOS SANTOS;
2. ANTONIO DA CONCEICAO SANTOS;
3. JACINTO DA COSTA;
All the testimonies of the witnesses read in court were mainly denied by the
Defendant;
19. Witness Professor DR. Ing. B.J. HABIBIE
In the court examination, the witness gave the testimonies under oath, and
mainly explained as follows:
- It is true that the witness knows Defendant TONO SURATMAN, but has no
family relationship;
- It is true that the witness was the President of the Republic of Indonesia
since May 21, 1998 until October 19, 1999;
- It is true that the witness explained that East Timor problem had been
brought to the international situation, the UN Plenary Session (Security
Council) still denied it though it had become part of the Indonesian
territory, as there was a decree of the People's Consultative Council (MPR),
in 1978 that ratify the integration of East Timor into RI, with the
consequences that TNI could be present there to secure RI territory.
- It is true that at the time, RI state is in difficult situation due to the
economical and monetary crisis, and if continued to take care of East Timor
for five to ten years, then granted it independence, it would be a heavy
burden;
- It is true that the witness received a phone call from English Prime
Minister TONY BLAIR, UN Secretary General KOFFI ANNAM (sic), Australian
Prime Minister JOHN HOWARD, and besides that, JOHN HOWARD requested to meet
in Bali, whereas at the time, each of them was accompanied by the Minister
of Foreign Affairs and the Minister of Defense and Security;
- It is true that the witness then received a letter from JOHN HOWARD
requesting East Timor to be treated like New Caledonia as the French colony;
- It is true that the witness declared East Timor issue had been in the
state of prolonged uncertainty, and had become a burden to the country and
state of the Republic of Indonesia;
- It is true that around January 1999, the Minister of Foreign Affairs ALI
ALATAS received a letter from JOHN HOWARD with an attached disposition from
the witness as the president of RI, written in red ink, and was completed on
01.30 a.m. WITA;
- It is true that the Indonesian fights were not the invasion of East Timor,
because the witness believed that with the constitution of BALEBO
declaration, the people of East Timor wanted to join to/ integrate with
Indonesia;
SUMMARY OF TONO SURATMAN'S VERDICT, P.43-P.92
FACTS OF TRIAL
No Name Identity Incident Facts
17. Djoko Sugianto SH Former Chairman of Komnas HAM, visitied East Timor on
April 17, 1999 to activate Independent Human Right Commission in Timor
Lorosae (KIHAMTIL) Dili Incident • Upon arrival saw a movement of mass in
parade, some bearing firearms, but witness did not know the type. Upon
inquiry witness found out that the mass just came back from a PAM SWAKARSA
ceremony at the office of East Timor Governor• The witness was aware of the
fact that the attack of Manuel Carascalo's house had caused 12 fatalities
from pro-independence side
18. -Rafael Dos Santos-Antonio Da Concecao Santos-Jacinto Da Costa Victim
Witnesses, did not attend the trial, the pre-trial statement was read out
Dili Incident • All content of the statements was rejected by the defendant•
No trial fact was derived from these statements
19. Prof. DR. Ing. B.J. Habibie Former President of Indonesia Dili Incident
• That East Timor has been a conflict area and was always considered as an
international situation by UN Security Council.• That the witness received
calls from Tony Blair, Kofi Annan, John Howard• That the witness received a
letter from John Howard asking East Timor to be treated as New Caledonia as
a colony of France• That in January 1999 the Minister of Foreign Affairs
received the letter from the Australian Prime Minister with the disposition
from the president on top in red ink. • At the time Indonesia was in
economic crisis, thus it would be too much burden for the country's economy
if it should continue developing East Timor for the next 10-15 years and
afterwards letting the province to be independent.
20. Major Salman Manafe Former Kasdim 1627/Dili 1997-1999 Dili Incident •
That the ceremony of PAM SWAKARSA was reported to have been initiated at
09.00 and ended at 10.00 on April 17, 1999• That the witness went to Manuel
Viegas Carascalo's house at 14.45 and reported to Dandim via radio, and when
he arrived there was already a police line and police personnel• That TNI
only provided back up for the follow up actions after the incident• That the
witness was informed that there was going to be PAM SWAKARSA ceremony and
the visit of The Ambassador of Ireland on April 17, 1999 in the morning
briefing held by Dandim in the morning of the same day, and the troops were
ordered to be on stand by due to the two incidents. • That the witness did
not know there were personnel from other units in the mass ceremony, nor he
knew anyone by the name of Jisee Matheus, Antonio Besikan, Duarte, Carlos
Amaral, Baltazar and Theofil. • That throughout the period he was the Kasdim,
he never heard that the six of them were brought upon the military court due
to their involvement in the attack of Manuel Carascalao's house.
21. Mayor General TNI Zacky Anwar Makarim General • That in the inquiry
executed at Liquisa church, where the witness questioned the sisters there,
one of them named Sister Flora, on the twenty-five victims of the incident,
it was concluded that there were five fatalities, that the victims were from
both sides, and there was no involvement of TNI members in the incident.•
That Pam Swakarsa was guided by the Regional Government but had never
received fund, guidance nor weapon from TNI.• That at the time of Manuel
Carascalao's house's attack the witness was at Liquisa, but found out from
Danrem what happened.• That at the time it was not military emergency, this
it was still civilian-order situation, thus the security was to be regulated
by the Police
22. Djoko Waluyo • That on April 6, 1999 at 09.00 there was a morning
briefing/ceremony at the yard of Kodim Head Quarters with the Dandim,
Lieutenant Colonel Inf. Asep Kuswani, as the inspector, and it was attended
by around 40 members of Liquisa Kodim• That in the ceremony the red alert
was issued, and it was forbidden to go out of the Headquarters since there
was a mass-gathering around the Diocese• That by the order of the defendant
Tono Suratman the Wadanrem (Vice Commander of Military Resort) arrived at
10.00 in the Kodim Headquarters in Liquisa, preceded with the arrival of
Kapolres and Regent• That the witness rescued Pastor Rafael Dos Santos and
brought him to Kodim Headquarters during the attack accordingly to Dandim's
order. The others were not rescued because the Dandim did not order to.
23. Carlos Amaral 1997-1999 was the Danramil (Commander of Military Area) of
Maubara Dili • At the time of the incident on April 17, 1999 he was on his
annual leave, from March 28, 1999-April 29, 1999,in Kendal, Middle Java,
with his family. He left on a Hercules plane.• He could not show his leave
authorization papers.• That during his absence he was represented by Serka (Chief
Sergeant) Suparno• That according to Suparno no member of Koramil Maubara
had left the headquarters on April 17, 1999• Koramil Maubara had 15 members,
he did not remember all the names, only Suparno, Awasy, Mathos da Silva,
Luis Yana and Yoseph• That aside his own name, he did not recognize the
other names of TNI members suspected of being involved in the April 17, 1999
incident.
24. Prof. Dr. Muladi, SH Expert Witness • The international standard of
command responsibility: has to be of military, has the ability to prevent
and authority to prosecute, and those authorities are part of a commander's
authority• That a crime committed by a commander in relation of a human
right violation by his subordinate(s) is included in the omission principle.•
That for a crime in form of command responsibility as stipulated in Law no.
26, it has an extreme condition that there has to be a troop under his
command involved in the crime against humanity.• Command responsibility can
be implicated to the highest authority of a state or a non-state
organization, but the policy should be known and understood by the involved
field executors• That field executors can be civilians or military personnel,
with the conditions as set in Article 9, Law no. 26• That the hesitation of
TNI in taking actions, bearing in mind TNI was not wholly responsible of
East Timor at the time, was a moral responsibility.• That if there is a
written document on the transfer of command of militia to TNI, the militia
can be considered as an indirect subordinate of TNI.• That gross violation
of human rights is an extra ordinary crime, the characteristic being it is
especially cruel and the state is involved in it.
25. P.L.T. Tobing Expert Witness • In TNI there is Unity of Command, meaning
there is only one policy authority and there is no transfer of the authority,
there can only be delegation of task. Responsibility cannot be delegated, it
remains to be the responsibility of the authority holder. Thus in command
responsibility everything should run well at operational and tactical level,
it should be one chain of command and cannot be isolated. • That the crime
of a subordinate is not necessarily related with the commander. The relation
should be determined by general opinion and the execution of duty.• That
human right violation is at the level of execution of task.
26. Prof. H. A. S. Natabaya SH Expert Witness • "under command and contr0l"
is a relation between subordinate-superior, and not only a de-facto relation
but also de-jure, meaning there has to be the authority to issue order and
there are similar characters between troops and commander. • Widespread
means there are a lot of victims and systematic means there is planning
based on a sound policy of a state or organization• That though command
responsibility is individual in nature it is hard to separate it from the
institution because it related with the troop under his/her command.
27. Brigadier General Tono Suratman Defendant, Danrem General • That
communication between Kodims is on for 20hours by Ra Call Radio, guarded by
an official, and there should be a working telephone• On April 6, 1999 he
sent his vice to Liquisa based on the report from the Dandim of Liquisa•
That on April 6, 1999 there was mass gathering around Pastor Rafael Dos
Santos' house, and the place was guarded by the police• That the defendant
ordered his vice, who was aided by Lieutenant Colonel Inf. Yayat Sudrajat,
to keep coordinating with Police Force.• There were 20 people wounded and
five people died in the incident in Liquisa, which was confirmed by the
defendant's vice to the vice regional police chief (wakapolda).• That the
defendant always reported to the Pangdam (High Commander of Military Region)
verbally or by writing• That the defendant did not know that on April 17,
1999 there was a mass ceremony at the East Timor Governor's office nor did
he attended it. He only knew about the mass at 13.30 of that day from his
attendant after Manuel Carascalao left his house.• That Manuel Carascalao
went to him not to seek refuge but to ask for weapon to kill the people in
his house• That at the time TNI was only assisting the police, because it
was still civilian-order• That there was no reference of "militia" at the
time, there was only pro-integration mass, wanra (with Kodim as patron) and
Pam Swakarsa (with Regional Government as patron)• That Tim Alfa in Los
Palos was only a reference to the wanra group that was already dispersed.
LEGAL FACTS
1. That Tono Suratman was the Commander of Military Resort (DANREM) 164/Wira
Dharma East Timor during June 10,1998-August 13, 1999
2. That Korem 164/Wira Dharma East Timor consisted of 13 Kodims (Military
Division Command) , consisting of 3000 personnel dispersed in the 13 Kodims
and the Korem Headquarters
3. That there were conflicting community groups in East Timor, the
pro-integration and pro-independence group
4. That before the violent incident at Pastor Rafael Dos Santos' house on
April 6, 1999, on April 4 and 5, 1999 there was burning and persecution by
pro-independence group, led by Jacinto Da Costa, against the pro-integration
group. Afterwards he and his followers ran and seek protection at Pastor Dos
Santos' house.
5. That before the incident on April 6, 1999 the pro-integration had asked
for Da Costa to be surrendered to the Police, but the request continued to
be unheeded by the Pastor Dos Santos
6. That the violent incident on April 17, 1999 at Manuel Viegas Carascalao's
house occurred after the mass ceremony at the Governor's office, which was
led by Joao Da Silva Tavares as the High Commander of PPI and before the
ceremony was closed the vice high commander, Eurico Guteres made a speech in
front of those who attended the ceremony
7. After the ceremony the participants went on rally around Dili, intending
to go home afterwards. Those who were Maubara residents when going pass
Manuel Carrascalao's house heard a scream for help. They went there and the
clash occurred.
8. That the defendant was aware of the violent incidents from the report
from his subordinates, and gave instructions to his subordinates and
reported to his superiors
9. That the political situation became heated after the announcement of the
second option
10. That at the time of the incidents it was civilian-order situation.
Simultaneously there was the policy of Tatoli, in which every Dandim (Military
Division Commander) was a Sub-Sector Commander and every Kapolres (Chief of
Resort Police) was a Vice Sub-Sector Commander. The Hanoin Lorosae operation
policy was also implemented for the Police.
11. That after Liquica Incident in the Liquisa Kodim Headquarters there was
a meeting between the Dandim (Asep Kuswani), Wadanrem 164/WD East Timor,
Yayat Sudrajat, Kapolres Liquica Adios Solva and the Regent of Liquica to
discuss about the solvency for the incident.
12. That the Wadanrem was ordered by the defendant to go to Liquisa after
hearing the report that at Pastor Rafael Dos Santos' house there were people
who ran from Pukelara under the leadership of Jacinto Da Costa, the Head of
Dato Village. He came with Yayat Sudrajat and 2 platoons of troops.
13. That in the Liquisa incidentthe Liquica Police apparatus already took
measures of security aided by TNI
14. That in both incidents there were casualties including fatalities.
DELIBERATION
Charges:
1. Article 42 verse 1 letter a and b (on command responsibility) jis article
7 letter b (on gross violation of human rights, crime against humanity),
article 9 letter a (on murder), article 37 Law No. 26 year 2000 (minimum
sentence 10 years, maximum sentence 15 years for murder) on Human Right
Court
2. Article 42 verse 1 letter a and b jis article 7 letter b, article 9
letter h (on persecution), article 40 (minimum sentence 10 years, maximum
sentence 20 years for persecution) Law No. 26 year 2000 on Human Right Court
Analysis on Elements
1. A crime against humanity that is a part of a "widespread" and "systematic"
attack
According to International Law, a widespread attack has to be targeted upon
a multiplicity of victims as a part of a policy of a state or organization,
whereas a systematic attack is orchestrated, coordinated, organized by a
group of people so that the attack is carried out in a systematic manner,
i.e. there has to be a pattern methodological plan or evident and a follow
up of a preconceived policy or plan. Whereas according to Darril Robinson in
his book Definitive Crimes Against Humanity at Rome Conference, widespread
requires large scale action involving a substantial number of victims, the
concept of widespread may be defined as massive, frequent, large-scale
action carried out collectively with considerable seriousness directed
against a multiplicity of victims, and systematic means the action is
organized following an orderly pattern based on the same policy, involving
major resources and is meticulously engineered and methodologically planned.
Based on the above definitions, the panel is of the opinion that an attack
does not necessarily have to be a military attack, it can be done by
non-military actors when a murder(s) is the result of an exertion of power
or operation targeted upon civilian residents.
It should also be considered that the offer of the two options was issued by
B.J. Habibie upon external (international) pressure and the fact that
Indonesia was in an economic crisis. The offer was issued despite of the
Minister of Foreign Affair's and Minister of Security and Defense (Armed
Forces High Commander) warnings that such action if constituted prematurely
would only create conflict. The offer of options awakened the old conflict,
and within the community of East Timor arose various political groups,
namely FPDK, BRTT, BMP, Mahidi etc of the pro-integration lead by Joao Da
Silva Tvares and Eurico Guteres as his second-in-command, and CNRT, Fretilin,
Falintil, etc of the pro-independence/anti-integration lead by Xanana Gusmao.
Both groups incessantly commenced actions in patterned and organized ways,
such as political speech, mass rally, coercion and terror, in order to
achieve their political ends. In such emotionally over-charged condition,
the smallest difference may trigger murder, persecution, destruction and
arson. Thus the panel is of the opinion that before and after the referendum
the situation of East Timor has contained high-intensity armed conflicts
between two groups that has the organizational structure fitting the
category set in the 1949 Geneva Convention, thus it can be categorized as an
internal armed conflict, upon which provisions on war crime as contained in
the article 3 of the convention can be implemented, especially since
Indonesia has ratified it through law no. 59 year 1958. Thus the element of
"systematic" and "widespread" has been legally fulfilled.
2. Element: the attack is known to be directly targeted upon civilian
population in form of murder
Bearing in mind that in the explanation for article 9 law no. 26, the attack
against civilian residents is a chain of conduct commenced against civilians
as an extension of a policy of a power holder or a policy related to an
organization, and that the panel is of the opinion that the attack does not
have to be directed to the whole population but can also be directed to only
one group of civilians of certain political belief.
Bearing in mind that accordingly to the pledoi of the defense, not all
policies resulting in an attack can be regarded as a crime against humanity,
those that can should be policies to commit such attack. The panel is of the
opinion that the escalation of riots, violence and murder is triggered by
the issuing of the options by President B.J. Habibie, just as the testimony
of the Former Minister of Security and Defense Wiranto, that it was a risk
that may have to be taken in a policy. Thus the panel is of the opinion that
the violence is the extended result of the policy to offer the two options,
which is accordingly to the stipulation in article 9 Law no. 26.
Upon whether or not the defendant "knew" that the attack was targeted upon
civilians in form of murder. The defendant found out about the attack from
the report from his subordinate, Lieutenant Colonel Inf. Asep Kuswani, and
immediately ordered his vice Col. Inf. Yayat Sudrajat to go to Liquisa to
anticipate the situation and aid the rescue of the refugees, and the next
day he went to visit the crime scene with the Chief of Regional Police (Kapolda).
Upon the attack of Manuel Viegas Carascalao's residence, the defendant found
out about the attack from the report from his subordinate, Lieutenant
Colonel Inf. Endar Priyanto, whereas at the time he was meeting his guests
from the Embassy of Ireland. Upon his return, the defendant found out that
the victims were already taken to Wira Husada Hospital, and he along with
Colonel Inf. Endar Priyanto went there to visit them. And based on the legal
facts revealed from the witnesses' accounts, namely Col. Inf. Mudjiono, Lieu.
Col. Asep Kuswani, Colonel Inf. Endar Priyanto, Mayor General Zacky Anwar
and Major Inf. Salman Mante, both incidents of violence were executed by
pro-integration group upon the pro-independence by using generic and organic
firearms and sharp weapons as well as other weapons, resulting 5 deaths in
Liquisa and 12 in Dili. Thus the panel is of the opinion that the element
the attack is known to be directly targeted upon civilian population in form
of murder is fulfilled.
3. Element: A military commander or someone effectively acting as a military
commander can be held accountable for the crimes committed by the troops
under his/her effective command and control.
Bearing in mind that that the doctrine of command responsibility as
stipulated in article 42 verse letter a and b Law no. 26 is an individual
criminal responsibility accordingly to international law, developed by the
international community in prosecuting the perpetrators of crime against
humanity and war crimes after world war II, which later was crystallized in
the Rome Statutes 1998. It is meant to be a mean to hold accountable the
non-military and military superiors for crimes of their subordinates due to
their failure in preventing or controlling the subordinates. The parameter
of the individual responsibility is set by the practices of ICTY and ICTR
and various international instruments are as follows: a) individual
responsibility can be prosecuted upon a person who planned, coerced, ordered,
perpetrated or assisted in the planning, preparation or committing the crime
against humanity and war crimes b) Crime against humanity perpetrated by the
subordinate does not exempt the leader or superior from criminal
responsibility if he knew based on his reasonable consideration that his
subordinate is going to commit a crime and the superior or leader failed to
take necessary and reasonable actions to prevent it or prosecute the
perpetrator c) the excuse that the crime is committed based on a superior's
command would not exempt one from being criminally responsible but may be
considered as alleviating factors. Bearing also in mind article 86
Additional Protocol I year 1997 in essence stating that "the responsibility
of a superior in relation with actions taken by his/her subordinates, it is
compulsory for the superior to intervene by taking all possible actions to
prevent and prosecute the violation". If this is related to article 42 verse
1 letter a and b of Law no. 26, it means a military commander or superior
has to be responsible for the crime that is committed by the troop under his
effective command or control. Thus it should be substantiated whether or not
the troop under the defendant was involved in the crime against humanity at
the residence of Pator Rafael Dos Santos in Liquisa on April 5 and 6, 1999
and at the residence of Manuel Viegas Carascalao in Dili on April 17, 1999.
Bearing in mind that Tono Suratman was a commander of Korem 164/ Wira Dharma
East Timor based on the Letter of Order of The Chief of Staff of Kodam IX/Udayana
No. Sprin/770/VI/1998 dated June 8, 1998, during the period of June 10,
1998-August 13, 1999, subordinating 13 Kodim and 52 Koramils in 13 regencies
in East Timor, with personnel amounting to 10,000 and Wanra members of 1,200
and The Tribuana VIII Task Force which command is transferred to him.
Upon to the extent of involvement of the troops under his effective command
or authority and control in the two locations, Dili and Liquica, the panel
would weigh the opinions of the prosecutor and defense"
Opinion of Ad Hoc Prosecutor Opinion of Defense
In the requisition, page 73, the Prosecutor stated that those who
perpetrated in the violence at Pastor Rafael Dos Santos' house were the
pro-integration group along with TNI/Polri, and at Manuel Viegas
Carascalao's house was the pro-integration group together with TNI. Whereas
the defendant had the authority and power to order, regulate, control,
supervise and exercise the upholding of law upon the TNI members under his
command In the pledoi, page 223-224, stated that based on witnesses
testifying under oath, namely Col. Inf. Mudjiono, Lieu. Col. Pol. Adios
Silva, Lieu Col. Asep Kiwani, Lieu. Pol. Frans Samali, Major General Zacky
Makarim, Major Djoko Waluyo, Mayor General Adam Damiri, Gen (Ret) Wiranto,
President BJ Habibie there is no proof that there were TNI troops involved
in the incidents and that the Dandim 1638/Liquisa Lieu. Col. Asep Kuswani
and Dandim 1627/Dili Lieu. Col. Endar Priyanto have been acquitted from the
charges against them for gross violations of human rights in East Timor by
the panels of judges of the Ad Hoc Human Right Court.
The panel of the judges would like to analyze the background of each
incident in determining the involvement of TNI in them:
Liquisa Dili
- Based on the legal facts, the incident on April 6, 1999 was triggered by
the incident on April 4 and 5, when the pro-independence group led by
Jacinto Da Costa destroyed and burned the houses and prosecuted the people
in Pukelara village, who afterwards went to Pastor Rafael Dos Santos' house
to seek protection.• Based on Gen. Wiranto's account, the riot was because
The President of CNRT, Xanana Gusmao, who was at the Cipinang Prison,
Jakarta, issued "urge to war" against TNI and pro-integration.• That despite
of various mediating and negotiating efforts, accordingly to the accounts of
John Rea, Damianus Dapa, Frans Samali, Adios Salova, Eurico Guteres, with
Pastor Dos Santos at 08.00-10.00 on April 6, 1999, for the surrender of
Jacinto Da Costa and his accomplices to the Police to be investigated and
legally processed, the Pastor adamantly refused to do so. The 300
pro-integration who gathered around the house issued a warning that Da Costa
and his accomplices should be surrendered before 12.00 or else the
pro-integration group would attack the house. • After 12, suddenly the BMP
led by Manuel de Sausa, which was a Pro-Integration unit, attacked the house
despite of the efforts of the Police and TNI to prevent it and their plea to
BMP not to take justice into their own hands. • According to Mayor Salman
Manafe and other witnesses, on April 17, 1999, at 09.00-10.00 there was a
Pam-Swakarsa mass ceremony at the Governor's Office, attended by 5000 people,
representatives from all areas of East Timor. The ceremony was guarded
heavily by security apparatus. • According to Eurico Guteres, the ceremony
was organized by the Regional Government, and it was lead Joao Da Silva
Tavares as PPI Commander and Eurico Guteres as the second-in-command made a
speech urging the people of East Timor to stay with Indonesia.• According to
Joao Da Silva Tavares the participants brought generic weapons and blades,
because it is customary for East Timoresse to bring blades when traveling.•
That according to the testimony of Guteres and Da Silva afterwards the
pro-integration group paraded around Dili.• That according to victim
witnesses Alfredo Sanches and Florindo de Jesus there were 100-200 refugees
at the time in Manuel Carascalao's house. • When they were parading, the
pro-integration group saw a woman lying in front of Carascalao's house, they
helped her and at the time the clash spontaneously happened between the
pro-integration and pro-independence group. • According to Mayor Salman
Manafe the clash occurred at 11.00 and was immediately reported to Dandim
Dil via Handy Talkie. Due to the clash there were 12 fatalities and some
injuries. At the time Manuel Carascalao was not home, he was taking his wife
to Comoro Airport. • Carascalao heard about the attack from the call from
his child. He went to Tono Suratman for protection and weapon to avenge the
attack and kill the pro-integration, but the request was rejected due to the
fact that the matter was already taken care of by the Police, assisted by
Dili Dandim Lieu. Col. Inf. Endar Priyanto.
The panel would also take into account the situation in East Timor
pre-referendum, starting from the issuing of the 2nd option on January 27,
1999 up to April 1999, before the Three-Parted agreement on May 5, 1999, to
determine the extent of TNI's role accordingly to its function in security.
Accordingly to Gen (Ret) Wiranto and expert witness P.L.T Sihombing, at the
time when the second option was issued, East Timor was in "ordinary
situation" since the President did not announce state of emergency. Thus,
according to P.L.T Sihombing and Prof. Muladi, the state governance was on
ordinary mode, meaning in the situation of civilian-order, thus prioritizing
the Police. The military emergency was only initiated three days after the
referendum, meaning on September 7, 1999 at 00.00, after the burning,
prosecution and murder at Archbishop Belo's residence on September 6, 1999
as the result of the disappointment over the result of the referendum that
was announced on April 4, 1999.
Bearing in mind that according to Gen Wiranto, Police is responsible of
People's Security and Order while Military is responsible of matters
concerning Defense, thus a clash between civilians under ordinary
circumstances is the responsibility of a police not TNI, as stipulated in
law no. 28 year 1997 on the Police Force of the Republic Of Indonesia, which
at the time was still at work in East Timor.
Thus upon whether or not Tono Suratman as the Commander of Korem 164/WD East
Timor can be held criminally accountable for the crimes of the troop under
his effective command and control:
Liquica Dili
- The legal facts show that the attack against the pro-independence civilian
in Pastor Rafael Dos Santos' house was the pro-integration group who was
disappointed with the unwillingness of the Pastor to surrender Jacinto Da
Costa. The panel is of the opinion that "there is a lack of proof" that
substantiates the involvement of TNI in the attack. What happened was that
TNI helped the Police in securing the refugees, separating the two clashing
groups and rescuing the Pastor and the sisters of the Diocese to the Liquisa
Kodim Headquarters.That before the violence happened at Pastor Dos Santos'
house, preventive measures have been taken by TNI. Upon hearing the mass
gathering of the pro-independence and pro-integration at Pastor Dos Santos'
house from Dandim 1638.Liquisa Lieu. Col. Asep Kuswani, on the same day,
April 6, 1999, the defendant ordered his vice, Col. Inf. Mudjiono and the
Trikora Task Force, Col. Inf. Yayat Sudrajat, to go to the Liquisa Kodim
Headquarters to help the Dandim and Police, enabling negotiation with Pastor
Dos Santos to surrender Jacinto Da Costa to be legally processed. The pastor
refused. • The panel will refer to the two victim witnesses Alfredo Sanches
and Florindo De Jesus who were taking shelter in the house of the CNRT
figure, Manuel Viegas Carascalao, who are the two key witnesses on the
involvement of TNI in the attack and whose testimonies are negated by the
other 26 witnesses, who stated that not only TNI was not involved in the
attack, but also assisted in preventing and securing and separating the two
clashing parties, preventing more victims.• Carlos Amaral, who allegedly was
involved in the attack, strongly denied the account, claiming an alibi that
he was on leave on April 17, 1999.• The testimonies of Sanches and De Jesus
conflicted each other, Sanches claiming that (some of) the attackers were
TNI in uniform and De Jesus claiming that (some of) the attackers were TNI
in civilian clothes, whereas both of them were taking shelter nearby each
other. The panel also questions that if they were squatting while taking
shelter behind a wall near a bamboo tree, it would be impossible for them to
see clearly who and from what group committed the attack. • On the presence
of TNI uniformed people, the panel is of the opinion that at the time in
East Timor, civilians from pro-independence and pro-integration frequently
wore TNI attributes, such as found in the photographs of Falintil/CNRT
parties in TNI attributes submitted by the defense in the trial.• From the
accounts of the two witnesses, the panel is of the opinion that even if
there were TNI troops around the walls of the Carascalao's house mingled
with the pro-integration, it does not necessarily mean that TNI participated
in the attack against the civilians (of pro-integration group) in the house,
it may mean that the TNI troops were there to assist in preventing the
rioters from attacking or maintaining the security there.• The panel is of
the opinion that since the mass was of a large number it would be very
difficult to see which party was attacking, whether it was the
pro-integration, the pro-independence or TNI/Polri. On the other hand, when
Sanches was shot twice by militia organic weapon and De Jesus was chopped
several times by militia, it was Brimob and Indonesia's Red Cross that
brought them to a Wira Husada Hospital, which belonged to TNI.• That if
there were TNI members participating in the attack, the casualties would
have been more. Police and TNI were in fact the parties that ceased and
rescued the refugees from the crime scene.• That even if there were members
of TNI who were natives of East Timor participating in the attack, the
prosecutor could not legally prove from which unit these TNI members were
from. On the other hand the non-TNI rioters in Liquisa and Dili were already
processed legally by the East Timor Regional Police. • The panel is of the
opinion that the alibi of Carlos Amaral is legally doubtful due to his
inability to produce his paper of leave and the self-registration/report to
the local Kodim where he was (Kendal), which he only did lately after his
involvement was questioned in the trial• That the defendant's refusal to
provide shelter and weapon for Carascalao is not perceived as omission by
this panel, since the troops under the defendant's control was already at
the crime scene at 11.40-13.30 protecting the refugees and preventing the
incident from spreading, whereas Tono Suratman only met Carascalao at 13.30
after his meeting with the guests from the Embassy of Ireland. And after the
meeting, the defendant with Dandim Dili Lieu. Col. Endar Priyanto went
immediately to Wira Husada Hospital to visit the victims
That Tono Suratman as Danrem 164/WD never issued a policy or order to his
subordinate or troops under his effective control to resort to participate
in the scenes where the violence occurred. He issued a "Pocket Book" to all
TNI soldiers and officials in East Timor and he was also pro-active in
negotiations to establish peace in East Timor, such as the pact on April 21,
1999 signed by the conflicting parties, namely 1) Xanana Gusmao and Leandro
Isaac from CNRT and Falintil 2) Domingos Soares and Joao da Silva Tavares
from pro-independence 3) Acknowledging the pact, the Regional Government of
East Timor: a) the Governor of East Timor, Abilio Jose Soares b) Head of
DPRD (Regional Representatives Assembly) Armindo Soares Mariano c) Danrem
164/WD Col. Inf. Tono Suratman d) Chief of Regional Police Col. Pol. Drs.
Timbul Silaen e) Minister of Security and Defense, The High Commander of TNI
Armed Forces, Gen. Wiranto f) Dili Diocese Archbishop Mgr. Filipe Ximenes
Belo and Bacau Diocese Archbishop Mgr. Basilio de Nacimento e) Chairman of
Komnas HAM H.R. Djoko Sugianto
Thus since there is not enough proof that TNI troops were involved in the
violence in Liquisa and Dili, and that the "omission" as indicted and
charged by the prosecutor failed to be substantiated in the trial, whereas
the Police was the dominant institution for the maintenance of the
community's security and order at the time in East Timor, then the element A
military commander or someone effectively acting as a military commander can
be held accountable for the crimes committed by the troops under his/her
effective command and control is not substantiated.
Since one of the main elements of the first indictment cannot be
substantiated, the other elements in the in the first indictment, including
the issue of the substantiation of the facsimile as arraigned by the
prosecutor, is legally unsubstantiated, thus the panel acquit the defendant
from the indictment.
Regarding the second indictment, since it also contains the element A
military commander or someone effectively acting as a military commander can
be held accountable for the crimes committed by the troops under his/her
effective command and control, and that this element has been
unsubstantiated, the second indictment has to be declared legally
unsubstantiated. Thus the defendant has to also be acquitted from the second
indictment.
Panel of Judges:
Chief Judge: H. Andi Samsan Nganro, SH
Member Judges:
Binsar Gultom. SH., SE., MH
H.M. Kabul Supriyadhie., M. Hum
Heru Susanto, SH.
Amirudin Aburaera, SH |
|