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ELSAM Report on Indonesian Ad Hoc Trials = for East=20 Timor
Report No. 1



Monitoring=20 Progress Report # 1
Ad Hoc Human Rights Court
Against Gross = Human=20 Rights Violations in East Timor
April- September 1999
1. = Foreword=20

Presently, the Ad Hoc Human Rights Court is holding a trial for = Crimes=20 Against Humanity in East Timor for the pre-referendum and = post-referendum=20 periods (April - September 1999). Until this moment, the court is=20 prosecuting three case files. One is under the name Abilio Soares = (the=20 former Governor of East Timor, and another for five defendants = namely,=20 Herman Sedyono (former KDH Regent Level 2 Covalima, East Timor), = Liliek=20 Koeshadianto (former Military District Commander/DANDIM 1635 = Suai), Gatot=20 Subiyaktoro (Former Head of the District Police Department of = Suai),=20 Achmad Syamsudin (former Chief of Staff, Military District 1635 = Suai) and=20 Sugito (former Commander, Military Rayon of Suai). The third = lawsuit puts=20 forth Timbul Silaen (former Head of the District Police Department = of East=20 Timor) as the defendant. These three court files covers the Gross=20 Violations of Human Rights incidents during the pre-referendum and = post-referendum periods that occur in the months of April - = September=20 1999, with locus delicti in Liquisa, Suai and Dili.

Since the beginning, the formation of the Ad Hoc Human Rights = Court has=20 invited many responses. The election of the panel of judges and = the=20 General Attorney are important tools in the judicial process. = Since=20 December 2001, only towards the end of the month of January, did = the=20 president issued a President's Decree. A few names of the judges = elected=20 have a bad record that increases the public's pessimism on the = Human=20 Rights Court. Until a few moments before the work commenced, the=20 supporting facilities have not yet been completed, such as legal=20 instruments for protection and witnesses. Finally, it appeared in = the form=20 of the Government's Regulations (PP) No.2/2002, concerning a = protection=20 program for victims and witnesses, and in Government's Regulations = No.=20 3/2002 concerning Compensation for the victims.

Asides from that, the capability of the judges and attorney to=20 comprehend and apply the understanding of Crimes Against Humanity = and=20 genocide has become a crucial point in the eyes of the public. The = understanding and comprehension of this form of crime becomes the = basic=20 skill, considering that the clauses regulated in Articles 7 and 9, = Act.=20 No. 26/2000 is actually adopted from the Rome Statutes with a few=20 distortions that in fact, weakens the concept and complicates the = process=20 of establishing evidence. Whereas, this Ad Hoc Human Rights Court = is the=20 first trial that deals with a form of extra-ordinary crimes, and = the=20 result of the process becomes a guide for the settlement of = various cases=20 of human rights violations that occurs in Indonesia.

In relation with this, the Institutes for Policy Research and = Advocacy=20 (ELSAM) deems it necessary to observe the process of the trial. = The=20 observation in the form of this monitoring is done based on a = series of=20 examining the process of the trial. In this first progress report, = the=20 main emphasis is placed on the content of the indictments and the=20 defendant's notes of objection, as well as the panel of judges'=20 preliminary verdict.

2. Charges

The two charges for Abilio Jose Osorio Soares and Timbul Silaen = were=20 arranged in the form of cumulative, while the charges for Herman = Sedyono,=20 Liliek Koeshadianto, Gatot Subiyaktoro, Achmad Syamsudin and = Sugito were=20 arranged in the forms of a subsidiary/alternative.

The three charges contain allegations of accountability as = criminals on=20 gross human rights violations that were done by their subordinates = (violation of command responsibility), as a superior that did not = perform=20 effectively in the correct and appropriate way (Article 42), by=20 disregarding the information that indicates that the subordinates = have=20 done/have recently done gross human violations (Article 42 Verse = 1(a) for=20 military command and Verse 2 (a) for civil officers), and did not = take the=20 appropriate action necessary to stop the act (Article 42, Verse 1 = (b) and=20 2(b)). The gross violations of human rights charged fall under the = crimes=20 against humanity (Article 7, Law No 26/2000) in the form of murder = (Article 9(a)) and 'persecution' (9 h). The areas where these = crimes=20 against humanity occurred, covers Dili, Liquisa and Covalima = (Suai) in the=20 periods of time before the referendum in April 1999, and after the = announcement of the results of the referendum in September 1999. =

Within the indictments, the General Attorney attempts to show = the=20 element of systematic by arranging the series of events that occur = in the=20 certain period. This can be located throughout the whole file of = charges=20 that attempts to sequence the attacks that happened in a serial = chain. In=20 Abilio's case, the attack happened in the month of April on the = dates 3,=20 4, 5, and 6 April 1999, that is connected by similar attacks on = the 17th=20 of April, and 4-6 September 1999. The same form was used in the = case files=20 charged for attacks that happen in the surrounding areas of Suai,=20 Covalima, and Liquisa for allegations against the former Head of = the=20 District Police Department in East Timor, Timbul Silaen.

Meanwhile, the element of widespread illustrates locus = geografis=20 (geographic location) and the massivity of numbers of victims. = This=20 commenced with attacks on one particular locus and spreads to = other areas=20 within the same region. As seen in Abilio's case file, locus = delicti at=20 the crime scene spreads from Father Rafel Santos's residence at = Liquisa=20 Church Complex, which includes Bishop Bello's residence, until Ave = Maria=20 Church Complex. Throughout the whole incident, massive numbers of = victims=20 mostly consists of civilians. The total number of victims from = these three=20 different locations is calculated to be at least 47 lives.

Tabel 1: Details of the Allegation and Articles used as the = base for=20 the Charges

Name of Defendant Form of Allegations: CUMULATION
Abilio = Jose Osorio=20 Soares Allegation IMurder Allegation II'persecution'
Articles = Charged=20 Article 42 verses (2) a and b; Jis Articles 7 letter b;Article 9 = letter a;=20 Article 37 Article 42 Verse (2) a and b; Jis Article 7 letter = bArticle 9=20 letter h; Article 40
Crime Scene Liquisa Church Complex; Ave = Maria=20 Church Complex, Covalima Regency; Bishop Belo's Residence, = Aleandro Isaac=20 and Manuel Viegas Carrascalao Dilli Regency; or, at east within = the=20 province of East Timor
Tempus Delicti 3,4,5,6 April 1999; 17 = April=20 1999; 4,5,6 September 1999; (or particular periods throughout the = months=20 of April and September 1999) 3,4,5,6 April 1999; 17 April 1999; = 4,5,6=20 September 1999; (or particular periods throughout the months of = April and=20 September 1999)
Total Number of Victims 1. Liquisa Church = Complex: 22=20 people2. Manuel Viegas Carascalao's residence: 12 people3. Bishop = Bello's=20 Residence: 10 people4. Ave Maria Church Complex: 27 people5. = Diocese Dilli=20 : 46 people 1. Liquisa Church Complex: 21 people2. Manuel Viegas=20 Carascalao's Residence: 4 people3. Bishop Bello's Residence: 1=20 person
Content of Charges 1. Criminally accountable for gross = human=20 rights violations conducted by his subordinates.2. Have the = knowledge or=20 disregarding the information that clearly states that his = subordinates are=20 doing or have just done gross human rights violations.3. Did not = exercise=20 control over his subordinates according to the right manner and = conduct.4.=20 Did not perform or take the appropriate actions that were = necessary, such=20 as coordinating with the officials who had the authority to = prevent or=20 stop the actions of the subordinates involved or turned in the=20 perpetrators to the officials authorized to conduct=20 investigations-inquiries and prosecution, therefore causing = 'persecutions'=20 towards the civilians. 1. Criminally accountable for gross human = rights=20 violations conducted by his subordinates.2. Disregards information = that=20 clearly states that his subordinates are doing or have just done = gross=20 human rights violations.3. Did not exercise control over his = subordinates=20 according to the right manner and conduct.4. Did not perform or = take the=20 appropriate actions that were necessary, such as coordinating with = the=20 officials who had authority to prevent or stop the actions of the=20 subordinates involved or turned in the perpetrators to the = officials=20 authorized to conduct investigations-inquiries and prosecution, = therefore=20 causing 'persecutions' towards the civilians.
Timbul Silaen = Articles=20 Charged Article 42 Verse (2) a and b; Jis Article 7 (b); Article 9 = letter=20 a; Article 37 Article 42 Verse (2) a and b; Jis Article 7 (b); = Article 9=20 letter h; Article 37
Locus Delicti Liquisa Church Complex; Ave = Maria=20 Church Complex, Covalima Regency; Aleandro Isaac and Manuel Viegas = Carrascalao Residence, Dili Regency; (or at least within the East = Timor=20 Province) Liquisa Church Complex; Ave Maria Church Complex, = Covalima=20 Regency; Aleandro Isaac and Manuel Viegas Carrascalao Residence, = Dili=20 Regency; (or at least within the East Timor Province)
Tempus = Delicti 6=20 and 17 April 1999; 5 and 6 September 1999;(or at certain times = within the=20 months of April and September 1999) 6 and 17 April 1999; 5 and 6 = September=20 1999;(or at certain times within the months of April and September = 1999)
Number of victims 1. Liquisa Church Complex: 22 people2. = Manuel=20 Viegas Carascalao's residence: 12 people3. Ave Maria Church = Complex: 27=20 people
Content of Charges 1. Did not perform accordingly the = authority=20 and responsibility to protect and preserve the peace and order of = the=20 people.2. Responsible for the murders done by his subordinates = under his=20 authority, effectively under his command.3. Did not exercise = control over=20 his subordinates according to the right manner and conduct.4. With = the=20 knowledge or consciously disregarding the information that clearly = stated=20 that his subordinates were doing or have just done gross human = rights=20 violations.5. Did not take the appropriate and necessary actions = within=20 the power of his authority to prevent or stop the act or turn in = the=20 perpetrator to the officials for inquiries, investigation and = prosecution.=20 1. Did not perform accordingly the authority and responsibility to = protect=20 and preserve the peace and orderliness of the people.2. = Responsible for=20 the murders done by his subordinates under his authority, = effectively=20 under his command.3. Did not exercise control over his = subordinates=20 according to the right manner and conduct.4. With the knowledge or = consciously disregarding the information that clearly stated that = his=20 subordinates were doung or have just done gross human rights = violations.5.=20 Did not take the appropriate and necessary actions within the = power of his=20 authority to prevent or stop the act or turn in the perpetrator to = the=20 officials for inquiries, investigation and prosecution.
Herman = Sedyono,=20 Liliek Koeshadianto Form of Allegations SUBSIDIARY/ALTERNATIVE =
MURDER=20 'PERSECUTION'
Articles Charged Article 7(a) jis Article 9 (a); = Article=20 37, Article 42 Verse 1 sub (a), (b).
Crime Scene
Tempus = Delicti 6=20 September or at least, within the month of September 1999 =
Number of=20 Victims Ave Maria Church, Suai =3D 27 people
Content of = Charges Did not=20 exercise control over his subordinates/troops. Disregarding = information=20 that clearly stated that his subordinates/troops have just done = gross=20 human rights violations. Did not take actions to prevent or to = stop those=20 acts and bring the perpetrators to the authorized officials to = inquire,=20 investigate and prosecute.


Carefuly examine the charges compiled by the General = Attorney, it=20 is astonishing that the attorney only focussed on the incidents = that=20 happened within the period April-September 1999, without = connecting it=20 with other incidents that has happened prior to that. This could = be a weak=20 point of the allegations, taking into account that the meaning of = crimes=20 against humanity requires that the act is a part of attack towards = the=20 civilians that has a widespread and systematic nature. Widespread = refers=20 to the geographic width or the massiveness of victims, while = systematic=20 refers to the existence of a policy that is systemized to allow or = even=20 encourage the incident of gross human rights violations. These = elements=20 will be hard to be proven, if the incidents of gross human rights=20 violations are released from the dynamics of the development of = conflicts=20 within East Timor. The efforts in order to connect the dynamics of = the=20 development of conflicts within East Timor, prior to this is = important to=20 explain why this incident happened within the three Regencies = (East Timor=20 has 14 Regencies). It will fulfil the requirements of widespread = and=20 systematic. If this is not done, then the following incidents that = happen=20 will be case-by-case wise in nature.

The perspective used in the charges in reality eliminates the=20 interconnection of these civil groups of militia with the = country's=20 oppressive apparatus, the Indonesian National Armed Forces (TNI), = and the=20 Republic of Indonesia's Police. The loss of the context of the = birth of=20 the pro-integration civil militia groups who became the direct=20 perpetrators with the presence and security policy from the = military,=20 therefore, the context of the incident evolved into a horizontal = conflict=20 between groups of civilians. The presence of the militia was = explained as=20 a separate entity from the military institution. Even the meaning = of this=20 civil militia group, cannot be located in the charges. This group = is=20 identified as one of the parties of the horizontal conflicting=20 pro-integration and anti-integration parties. This resulted in = charges=20 that does not have the ability to demonstrate its existence as a=20 "deliberate" group formed as a part of the security policy in East = Timor.=20

This context may result in the missing link in the chain to = demonstrate=20 the direct role of the military and civil government officers in = the gross=20 Human Rights violations done by the civil pro-integration militia. = The=20 break in the inter-connection of the gross Human Rights violations = with=20 the incidents that occurred prior to these ones resulted in the=20 non-appearance of various violent acts done by the military = officials and=20 the groups of civil militia formed by them. On the contrary, the = formula=20 of the allegations present the conflicts in East Timor as tension = between=20 horizontal conflicts of pro-integration and pro-independence = groups that=20 were not satisfied with the referendum process.

The result of using this perspective, also affects the = allegations=20 severely in supporting the charge of command responsibility. The = most=20 important point of this allegations lie in the effort to show the = right=20 measurement to prove that the act or policy done by the person = wielding=20 authority (civil or military) may be classified as disregarding=20 information and ineffective. This is directly related to the = comprehension=20 of omission and commission. However, the charge is lacking = significantly=20 important data like the structure of command, the line of policy = and=20 control, as well as the size, amount and the comparison of = officials=20 available for the size of the regions and population, and the = relation=20 between civil militia groups with the TNI/ABRI. Therefore, it is = difficult=20 to formulate the acts of the civil and military officials that may = be=20 categorized as "violation by commission."

However, a few points in the letter of indictments can become = the=20 beginning to aid the panel of judges in establishing the evidence=20 particularly for the forms of omission and commission, by allowing = the=20 acts of civil or military officials as an active support, = allowance or=20 even help for the acts done by the pro-integration civil militia . =

3. Note of Objection and Preliminary Verdict

On account of these allegations, the attorneys of the = defendants=20 through a Note of Objection ask the court to halt examinations. = This halt=20 is based on a few objections towards the indictments that = covers:
1.=20 The background of the conflict in East Timor is a civil war that = began=20 since 1974 until the referendum in 1999. The conflict in East = Timor has=20 existed since 1974, especially between groups that want = independence and=20 the pro-integration groups. The incident before and after the = referendum=20 appears to be a spontaneous reaction because the pro-integration = group=20 detected dishonesty in the referendum process conducted by UNAMET, = therefore, what happened could not be called gross human rights = violation,=20 as regulated in Act No. 26/2000.

2. Court's Jurisdiction
In relation with the court's = jurisdiction,=20 there are two objections put forth in the note of objection of the = defendants:
1. The problem put forth is not a gross human = rights=20 violation as regulated in Acts No. 26/2000; therefore, the court = does not=20 have an absolute authority to try the case.
2. The incident of = gross=20 human rights violations occurred in the region of East Timor. = Based upon=20 Act no. 26/2000 jo Presidential Decree 56/2001, then the Ad Hoc = Human=20 Rights Court has no relative competence to try the case.

3. The application of the Retroactive Principle
The = application of=20 the Retroactive Principle is a form of waive towards the principle = of=20 Legality (nullum delictum nulla poena sine lege). Based on Act No. = 26/2000, Ad Hoc Human Rights Court uses the retroactive principle = to try=20 gross Human Rights violations. The application of the Retroactive=20 Principle in Act No. 26/2000, is considered as an opposition to = the=20 determination in the 2nd amendment of Article 18 (i) UUD 1945 and = UU no 39=20 year 1999 Article 18 (2) concerning Human Rights . Therefore, if = the=20 examination continues, then the court is actually perpetrating a = violation=20 of Human Rights.

4. Command Responsibility means someone to be held accountable = for a=20 deed one didn't commit directly (done by one's subordinates). This = opposes=20 the basic principle of sentencing according to criminal law, = because a=20 criminal accountability is by nature individually sustained by the = perpetrator .

5. The procedure is not in accordance with the existing = law
The=20 Inquiry and Prosecution on the part of the judiciary has violated = the time=20 limit determined by the regulations, therefore the matters of = allegation=20 is automatically invalid by law .

6. The formal requirements in the indictment are not fulfilled. =
A=20 few objections concerning the formal requirements in the = indictments as=20 regulated in Article 143 Verse 2 Criminal Code, are as follows: =
1. The=20 identity of the defendant in the indictment is wrong (error in=20 persona)
2. The allegations are unclear (obscuur = libelle)
The facts=20 used by the General Attorney in his allegations are contradictive. = Therefore, the allegations are unclear .
3. The adoption of = Article 55=20 Criminal Code by the General Attorney is an error, because it = should be=20 based on Act No. 26/2000 .

Towards the Note of Objection from the defendant, the panel of = judges=20 in the Ad Hoc Court that handles the three case files decided to = reject=20 the defendant's demands and on the contrary decided to continue = the trial=20 on the examination of the main case.

Concerning the objection on Absolute Competence and Relative=20 Competence, the Panel of Judges vies the Ad Hoc Human Rights Court = as=20 having Absolute Competence to try the gross Human Rights = violations that=20 happen before the formation of the Human Rights Court based on Act = No.=20 26/2000 (Article 43 Act No. 26/2000). Meanwhile, concerning = Relative=20 Competence, the panel also views the State Court of Central = Jakarta=20 authorized to try criminal acts done outside the region of = Indonesia by a=20 citizen of Indonesia (Article 86 Criminal Code). Asides from that, = Relative Competence is also recorded in Article 2 Presidential = Decree No=20 96 year 2001, that gives authority to the Ad Hoc Human Rights = Court to=20 decide and examine cases of gross Human Rights violations that = happened in=20 East Timor in the months April-September 1999 and in Tanjung Priok = in the=20 month of September 1984 .

Tabel 2 : Preliminary Verdict and the Basic Considerations = applied

The objection put forward in the note of objection Case Files = The panel=20 of judges considerations over the defendants objections
1. = Concerning=20 Competence
1. Absolute Competence Herman Sediyono Et.al. = Charges=20 against Sugito are a part of a systematic and widespread attack = where the=20 act can be categorized as a crime against humanity.
2. = Relative=20 Competence Timbul SilaenAbilio Jose Osorio SoaresHerman Sediyono, = Et.al.=20 The team of legal advisors are not very careful in reading Act = No.26/2000,=20 particularly Article 43 Verse 2 & 3 that regulates the Ad Hoc = Human=20 Rights Court . Based on the determination in Article 5, Act No = 26/2000,=20 the Ad Hoc Human Rights Court has the right to bring to trial the = case of=20 gross Human Rights violations outside the region of Indonesia, if = the=20 perpetrator is a citizen of Indonesia. Based on Article 86 = Criminal Code,=20 the State Court of Jakarta has the authority to try a criminal act = done in=20 a foreign country .
2. Concerning Act No 26/2000
1. In = relation to=20 the principle of legality because of the usage of the principle of = retroactivity Timbul SilaenAbilio Herman Sediyono, Et.al.. Based = on the=20 judicial principle of immunity against the gross Human Rights = violations,=20 it didn't seem fair in comparison with the principle of legality.=20 Practiced by the international law in cases such as, Nuremberg, = Tokyo, and=20 Rwanda, the principle of Nulum Delictum Noella Poena Sine Lege = Iure, gross=20 human rights violations are deeds that shake the value of humanity = and=20 threaten International peace and security. The inter-related = Article 18=20 Act no 39/1999 and Article 28i UUD 45 if viewed partially, may = create=20 partial understanding. Article 28i should be connected with = Article 28j as=20 found in the explanation of Act no.26/2000; that each crime = against=20 humanity may involve the retroactive principle, based upon how it = is=20 stated in Article 28j of the 1945 Constitution. The principle of=20 retroactivity is an ius cogens that has to be adhered to without=20 ratifications.
2. The legal power of Act No. 26/2000 is = unclear and=20 contradictive Abilio Jose Osorio Soares The panel of judges do not = have=20 the authority to examine the legislations unless based on the=20 determination in Article 26 Act No 14 of 1970 concerning the = elements of=20 the judges' power. The legislations were formed in the correct = manner and=20 binds legally. Based on the determination of Article 24 (1), the = second=20 amendment of the 1945 Constitution that the court of constitution = to=20 examine the legislation until today has not been formed. The = application=20 of the Retroactive Principle in the Legislation is an exception = that is=20 consciously done by the Legislator.
3. Inquiry Process
1. = The=20 inquiry that exceeded the time-limit Timbul Silaen Herman Sediyono = This=20 reason becomes insignificant after the case is given over to the = court=20 according to the legal procedures. It is not enough to state that = the=20 allegations should not be accepted.
2. The application of the=20 regulations that is considered not having any legal power Herman = sediyono=20 Et.al. With the rejection of Government Regulation 1/199 = concerning the=20 Human Rights Court by the Indonesian Legislative Assembly, the = Inquiry=20 that commenced based on that Government Regulation is still valid = as long=20 as it does not contradict Act No. 26/2000 until it is stated as = invalid by=20 Act No. 26/2000.
5. Allegations
1. The application of = Article 55=20 Criminal Code in the allegations Herman Sediyono, Et.al.. The = application=20 of this article does not contradict the law because it is only a = general=20 determination that states the roles of each defendants
2. The = error in=20 mentioning the identity of the perpetrator in the allegation = Herman=20 Sediyono This change is not included in the category as intended = in=20 Article 144 (2) Criminal Code that results in a loss on the = defendant's=20 side, therefore, not strong enough to void the allegations.
3.=20 Inaccurate allegations, obscure libel, contradictive Timbul = SilaenHerman=20 Sediyono, Et.al.. The indictments have fulfilled the requirements = in=20 Article 143 Verse 2 letter b Criminal Code by stating the time of = criminal=20 act, reiterating the material acts charged, the indictments has = completely=20 satisfies the elements required in the Legislation. The Court = decided that=20 the case should be proven in the examination .
4. error in = persona=20 Timbul Silaen Herman Sediyono, Et.al.. Objection is beyond the=20 determination in Article 156 Criminal Code, therefore, it is not=20 considered as a valid objection legally. Objection has included = the=20 elements of the case and should be proven in court .
5. = Negligent in=20 attaching Article 43 Act No. 26/2000 Drs. Herman Sediyono, Et.al. = This=20 reason cannot be used to void the allegations legally. Although it = is not=20 attached in the Article, the incident charged is clear enough. In = fact,=20 there are other regulations of sentences asides from Article = 43.
6. The=20 persecution perpetrators have never been examined and brought on = trial=20 Herman Sediyono, Et.al. This is not a reason to void the General=20 Attorney's charges as there is no regulation that determines who = must be=20 brought to trial first in an examination and the case sentenced. =
7.=20 Objections on the grounds that "command responsibility" is not = fulfilled=20 Herman Sediyono, Et.al.. The objection must be proven in the case = material=20 examinations so that this reason will not be discussed further. =
8.=20 Objection on the application of Presidential Decree 3 of 1999 that = is=20 invalid legally Herman Sediyono The attachment of the Presidential = Decree=20 3/1999 was a mis-type error, because the following explanation = shows that=20 it is intended to be Presidential Decree 43/1999. This reason will = not=20 cause the allegation to be voided.
9. Objection towards the = error of=20 the date of the referendum's announcement date. Drs. Herman = Sediyono,=20 Et.al.. Et.al The court determines this as an element of the = case
10.=20 The date on the indictment is not valid, because it is based on = the=20 Government Regulations No 1 Year 1999 that is presently invalid = Herman=20 Sediyono, Et.al. The opinion of the defendant's attorney that this = Government Regulation is no longer in use is not correct, because = even=20 though the Indonesian Legislative Assembly have rejected it, it = still has=20 a legal power until the RUU put forward by the government in place = of it=20 is put into effect, so that there is no legal gap. Therefore, the = Inquiry=20 may still continue as long as it does not contradict Act No. = 26/2000.

Applying the Retroactivity Principle is considered as a = deviation, not=20 a violation. Rather, it is a form of exception that is recognized = in the=20 study of law . Asides from that, the application of this principle = is not=20 in disregard of the Legality Principle in the Criminal Law. The = panel of=20 judges enforced that the application of the Retroactive Principle = is based=20 upon the principle to seek justice first, before the effort to = uphold the=20 absoluteness of the law. Because Crimes Against Humanity is in the = form of=20 an extraordinary crime that is recognized universally as the = common=20 "enemy" of the human race, therefore, it has to be prosecuted and=20 punished. Upholding the Legality Principle should not be the = facility of=20 impunity for the Crime against Humanity perpetrators.

Besides that, based on the practice of the International = Criminal=20 Court, from the International Tribunals for war criminals in = Nuremberg and=20 Tokyo, the Ad Hoc International Criminal Court for Yugoslavia and = Rwanda,=20 the District Court for Jerusalem for gross Human Rights = violations, until=20 Adolf Eichman's viewing genocide, all applies the Retroactive = Principle=20 deviated in the name of justice . Simultaneously, the = International=20 Judicial Practice also enhances the application for international=20 jurisdiction towards gross Human Rights violations, that in turn = will also=20 deviate the application of the principle ne bis in idem ---to some = extents, with few prerequisites, because with the existence of an=20 international jurisdiction, every nation have the responsibility = to try=20 extra ordinary criminal perpetrators without considering the = incident, the=20 perpetrator's country, as well as victims. If the settlement on = the=20 national level could not perform its function independently and = fairly,=20 the existence of an International Judiciary System to uphold = justice may=20 become a deviation of ne bis in idem in Criminal Law .

The panel of judges' considerations were the first step = forward,=20 keeping in mind the whole clause regarding gross Human Rights = crimes that=20 become the basis of the trial adopted from the Rome Statutes -with = some=20 distortions. By it, on the national level, Indonesia have not got = the=20 experience that can be referred to as a guide for the panel of = judges. The=20 effort seen in the practice of the court at International Level = that=20 adopts the clauses from the same Rome Statutes is an inevitable = choice.=20 Also, putting on trial gross Human Rights violators, and = extra-ordinary=20 crimes, have become a ius cogens, that is a legal norm that has to = be=20 adhered to and followed without any need of ratifications so that = all=20 nations are binded legally to perform it (obligatio erga omnes), = and if=20 necessary, waives the Legality Principle and the regulations of = National=20 Laws, including the ne bis in idem Principle and the Retroactivity = Principle.

It should be noted that in reality, there are sources as = guides, which=20 until this moment have not been utilized both by the attorneys, = nor the=20 panel of judges. One of them is the result of a similar court, or = at least=20 related with the case being tried that comes from Crime Against = Humanity=20 Court done in East Timor, as in the case of Los Palos by the UN=20 transitional government for East Timor .

The efforts done by the Ad Hoc General Attorney by excavating = elements=20 of crime against humanity, in the allegations compiled, must be = the basis=20 of investigation that is done on the main case. This is because, = the=20 efforts to prove the important elements in Crimes Against Humanity = is the=20 element of attacks directed towards the civilians; widespread; and = systematic, that requires diligence and hard work from the Ad Hoc = panel of=20 judges that tries the cases.

4. The Courtroom Process

In the Courtroom process, there are a few problems in the=20 administration of the related courts with an information access = during the=20 trial. Among others, there are no official fixed schedules = regarding the=20 trials in the formal publication board at court. Therefore, the = public=20 does not know exactly where and when the trials will be held. = Asides from=20 that, there is no order or mechanism that allows the public to = access a=20 number of basic documents, like the allegations.

In relation to the atmosphere of the courtroom, the presence of = groups=20 that are rightfully suspected of a neat organization, gives the = public=20 viewing the court a feeling of insecurity. These groups are among = others=20 Front Pembela Bangsa Indonesia (FPBI - Defenders of Indonesia = Front), East=20 Timorese groups that are attired in costumes with slogans like = "korban=20 penipuan PBB" (Victims of UN's fraud), several groups from the = Armed=20 Forces and policemen dressed as thugs, in turn occupies the = visitors seats=20 available. The presence of these groups often makes the Courtroom = noisy,=20 and some eve smoke and turn on their communication equipment.

Meanwhile, the panel of judges do not give any attention to = upholding=20 the rules and regulations of the court. Therefore, in every trial = session,=20 this kind of situation continues to take place. The audience often = cheers=20 and give applauses, accompanied by shouts when the defendant's = attorney=20 and the witness present gives words of sympathy for the Indonesian = Armed=20 Forces, as fighters defending the unity of our nation. Such = climates in a=20 courtroom indicate the existence of a contempt of court. If the = climate of=20 the court persists, it provides a difficulty for the attorney to = produce=20 his witnesses to the court.

Jakarta, 29 April 2002.
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