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ELSAM Report on Indonesian Ad Hoc Trials = for East=20 Timor
Report No. 2



Monitoring=20 Progress Report # 2
Ad Hoc Human Rights Court
Against Gross = Human=20 Rights Violations in East Timor
April- September 1999
I.=20 Introduction=20

In April 2002, the panel of judges that looks into the case = prosecuted=20 in Ad Hoc Human Rights Court (HRC) for Gross Human Rights = Violation had=20 decided upon preliminary verdict. In the preliminary verdict, the = panels=20 of judges believe that Ad Hoc HRC has absolute and relative = competence in=20 prosecuting gross human rights violation in East Timor. Asides = from that,=20 charges concluded by the general attorney have fulfilled their = formal and=20 material requirements. (See Progress report I for further details = on=20 charge letter and court competence).

In Progress Report #2, the process of the court, especially the = proving=20 of the charge, will be discussed further. Elements in the articles = of the=20 charge and the responsibility of the General Attorney to prove = those=20 elements, as well as the tendency of witness information in courts = held=20 until late April 2002 will be available in this part. Asides from = that, it=20 will also cover the capability of judges and attorneys in = exploring the=20 information given in the court and followed by an analysis on the=20 information given by the witnesses.

II. The Proving Process

2.1. Elements of the Charge

Two charges are concluded from three files. First, two files = each in=20 the name of Abilio Jose Osorio Soares and Timbul Silaen both in = form of=20 alternative charge and both have relatively same articles of = charge.=20 Second, one file in the name of Liliek Koeshadiyanto and friends = in form=20 of subsidaire charge.

A. Elements of the charge in the name of Abilio Jose Osorio = Soares and=20 Timbul Silaen are as follow:
a. The first charge:
1) Those = convicted=20 are police officers or civilians; who are direct superiors of the=20 perpetrators of gross violations of Human Rights.
2) The gross=20 violations of Human Rights committed by the subordinates are = considered=20 crimes against Humanity in form of murder.
3) The act committed = by the=20 subordinates is a part of a systematic and widespread crime = against=20 humanity directed to the civilians.
4) The convicted knew or=20 disregarded the information of the act committed by his = subordinates=20 intentionally.
5) The convicted did not do proper and necessary = actions=20 to prevent or stop the act and to hand the perpetrators over to = officers=20 in charge to be inquired, investigated and prosecuted.
6) If = those=20 elements are proved then the convicted can be sentenced to death = or life=20 imprisonment or imprisonment for at most 25 years and at least 10=20 years.
b. The Second Charge
In the second charge, the = elements are=20 relatively the same with the first charge. The minor differences = are:=20
1) The crime against humanity committed by the subordinates is = in form=20 of 'persecution'.
2) Imprisonment sentence is for at most 20 = years and=20 at least 10 years.

B. One file representing 5 (five) convicts organized in form of = subsidaire charges. Since the charges are in subsidaire form, the = elements=20 mentioned here are only primary charges. The primary charges are = as=20 follow:
Primary Charges: the elements contained in the primary = charges=20 are as follow:
1) Those: Convicts are military commands or = someone that=20 effectively act as one.
2) Responsible for the crime of gross = violation=20 of Human Rights committed by troops under his command with = effective=20 controlling, or under his authority with effective = controlling.
3)=20 Gross violation of Human rights committed by troops under the = convict's=20 command is a crime against humanity.
4) The act is a part of a=20 widespread and systematic crime against humanity directed to=20 civilians.
5) The criminal act is a result of improper troops=20 controlling:
a. Convict knew or based on the situation should = know that=20 the troops is committing or just committed gross violation of = Human=20 rights, and
b. Convicts did not do proper and necessary action = in his=20 authority to prevent or stop the act or to hand the perpetrators = to=20 officers in charge for inquiry, investigation and = prosecution.
6) If=20 the elements are proved, the convict will be sentenced to death or = life=20 imprisonment or imprisonment for at most 25 (twenty five) years = and at=20 least 10 (ten years).

Note:
1. It is not easy to understand the intention of the = General=20 Attorney in organizing the articles of the charge. The structure = is=20 different with the charges on behalf of Timbul Silaen dan Abilio = Jose=20 Osorio Soares.
2. Asides from that, the General Attorney is not = strict=20 enough in deciding the role of the convicts in the charge, whether = they=20 violate article 42 verse 1 (command responsibility) or as advice = maker=20 (equal to perpetrators). The ambiguity happened because the = General=20 Attorney includes article 55 verse 2 of the Criminal Act. The = general=20 Attorney should differentiate the role of the convicts by making a = different charge.

2.2. Information Given by Witnesses in Court

To prove the elements of the charge, until late April 2002 the = general=20 attorney has name the following witnesses:

Abelio Soares file (file I)

No Name Position Inquiry date Note
1 M .Nur Muis Former = danrem 17=20 April 2002
2 Herman Sedyono Former Bupati Covalima 17 April = 2002=20 Convict in file III
3 Suprapto Tarman Former Bupati Ailio 18 = April 2002=20
4 Tono Suratman Former Danrem 18 April 2002
5 Timbul = Silaen Former=20 East Timor Kapolda 24 April 2002 Convict in file II
6 Domingus = Soares=20 Former Bupati Dilli 25 April 2002
7 Mudjiono Former East Timor = Vice=20 Commander Korem 25 April 2002

Timbul Silaen file (file II)

No Name Position Inquiry Date Note
1 Wiranto Former = Menhankam/Pangab=20 4 April 2002
2 Adam Rahmat damiri Former Pangdam Udayana 11 = April 2002=20 Convict in east Timor case.
3 Mohammad Noer Muis 11 April 2002 =
4=20 Joseph Josua Sitompul Former East Timor Polri kapusdiklat Polda 18 = April=20 2002
5 Leo Pardede Former Kapusdalops Polda East Timor = 1997-1999 18=20 April 2002
6 Muafi Sahudji Former Wakapolda east Timor = 1997-1999 25=20 April 2002

Herman Sedyono etc. file (file III)

NO Name Position Inquiry date note
1 Sony Iskandar Former = driver of=20 kasdim Acmad syamsuddin (Convict IV) 23 April 2002
2 I Wayan = Suka=20 Antara PLN Suai security instructed by Dandim 23 April 2002
3=20 Sulistyono Former Truck Driver in kodim 1635 Suai 23 April 2002 =
4=20 Jehezkiel Berek Former Wakapolres Covalima 30 April 2002
5 = Jacobus=20 Tanamal Former Kapusdalop Polres Covalima 30 April 2002
6 Yopi = Lekatompessy Former Kapolsek Kota Covalima 30 April 2002


Information received above that is brought to court tends = to be=20 similar, The information is as follow:

1. About the referendum
It all begin with the 1st Option, = when the=20 president had the idea of giving special autonomy to East Timor in = the end=20 of 1998. Then in early january 1999 the 2nd Option is given. Both = are=20 discussed in tripartit agreement. After the 1st and 2nd Options = given, the=20 situation in East Timor changed drastically for a different new = policy is=20 made. This new policy ensures that the conflicting parties should = be=20 considered as respected parties.

2. About the party in charge of security
The party who is=20 responsible for the security in referendum process is the police = for=20 international society refused to have TNI interference in the = referendum=20 process. In security matter, the transfer of KODAL from Pangdam to = Kapolda=20 in May 1999 and it is effective until the formation of the = transitional=20 government. However, since chaos occurred on 4 September 1999 just = after=20 the announcement of the referendum, on 5 September 2002 KODAL is = returned=20 to Pangdam. On 7 September 1999, military alert situation is = announced in=20 all East Timor.

3. The Cause of Chaos
After the chaos on 4th September, the=20 situation got worse, sporadic and anarchy actions that troubled = KamtibMas=20 took place in Dili and other 4 districts at night on 5 September. = It is=20 caused by the announcement of the referendum that is scheduled for = 7=20 September 1999 was put ahead of schedule to 4 September 1999. It = is=20 suspected that the referendum committee and UNTAET cheated, yet = the=20 complaint did not get satisfying response. Basically the = aggression is the=20 result of an old and long lasting hatred in the pro-integration = society=20 toward the anti-integration society for the terror and murder = committed by=20 the anti-integration society toward the pro-integration society. = The=20 conflicting parties are Pro-Integration Group and Anti-Integration = Group.=20 On the other hand, Police and TNI were not involved in the = conflict and=20 violation committed by those parties is not violation against = Human Rights=20 since it had not been introduced at that time.

4. About the victims
In the incidents on 5 and 17 April 1999 = and in=20 September 1999, there were dead victims in civilians but the = number is=20 indefinite. Some of the injured are international citizens. Many = houses=20 are burnt down by their owners.

5. Action taken by the person in charge of security or the = command in=20 dealing with chaos or security problem
The security in the = referendum=20 was well maintained as the referendum could be carried out well. = In=20 dealing with the chaos, actions according to the procedure and = protap have=20 been taken and in result the chaos did not spread and it was = successfully=20 localized. In dealing with those who are considered as = perpetrators,=20 inquiries and prosecution have been conducted. The convicts had = done their=20 job well by reporting all events and the progress of the situation = to=20 their superiors as well as taking necessary actions. The reason = why the=20 officers could not deal with the chaos faster is because the = perpetrators=20 were in big number and they were very emotional while the number = of=20 officers was limited.

6. The Existence of the militias
The militias appeared as a = reaction toward announced options. It was initiated by the = aggressive=20 Pro-independence group who believes that they have equal rights,=20 intimidating and assaulting the society, terrorizing the = Pro-integration=20 group. There were an exodus of medical officers and teachers that = were not=20 from East Timor as well as the formation of groups to do partial = counter=20 attack against Pro-Integration group that intimidates, terrorizes = and=20 assault. The groups were formed as a reaction from the = Pro-integration=20 group. Therefore, there was no structural relation neither was = relation=20 among them. Asides from that, there were civilian groups which are = Wanra=20 and Kamra. In the field, Wanra is drilled by Kodim and Kamra by = the=20 Police.

2.3. General Attorney and the Panel of Judges' Exploration in=20 Discovering Material Truth.

The General Attorney
As a party responsible for proving = elements of=20 charge, the general attorney until late April 2002 had not been = able to=20 bring witnesses to prove the elements. The general attorney is = incapable=20 in using existing data as reference or comparison to the = information from=20 the witnesses. Some of the examples are as follow:
1. About = the cause=20 of Chaos
The general attorney did not try to dig further into = the=20 witness knowledge of why chaos happened. The general attorney = should=20 pursue the witness with more questions on the source of = information where=20 the witness believe that the chaos occurred because of the = announcement of=20 the referendum, fraud claim and the dissatisfying response of the = claim.=20 Therefore, it is possible to confirm whether the information is a = fact or=20 just their analysis.
2. About the involvement of TNI or Polri = in the=20 chaos
A witness confessed that there were some TNI/Polri = members that=20 commit violation during the preparation to the referendum itself. = The=20 general attorney did not investigate further who those 'members' = might be.=20 If the witness was not sure, the general attorney should have = asked about=20 the source of information. Regarding he report or the = investigation file,=20 the general attorney should have asked where they came from, so = that he=20 would find out: the identity of TNI/Polri 'member' that commit=20 perpetration, the relations between TNI/Polri members and the = convicts, as=20 well as the type of violation committed.

The Panel of Judges
The panel of Judges, in the case of = criminal act=20 or the violation of Human rights should act proactively in order = to find=20 the material truth. The Panel of Judges has the authority to = reject the=20 presence of witnesses that are irrelevant to the charge or those = whose=20 knowledge is not relevant according to the law. The examples are = as=20 follow:
1. The information owned by witnesses named by the = general=20 attorney is predominantly reports. This means that the witness = does not=20 really know the exact situation of violation of human rights = claimed by=20 the general attorney. Therefore, the witness is not relevant to be = named.=20 Asides from that, the information needed in the court should be = relevant=20 with the elements of charge and not with other elements. Thus = instead of=20 wasting time, the panel of judges should have rejected the = presence of=20 witness whose information is received from others or those who = does not=20 know the violation of human rights claimed.
2. Asides from = that, the=20 panel of judges also did not try to look into information received = from=20 witness like: witness saying that there was spoken (by phone) and = written=20 report made to the superior. What the panel of judges could have = done is=20 to ask what it is like, how many reports are made, where to find = the=20 report and whether this report could be given to the general = attorney. And=20 if it can be handed over to the general attorney, the panel of = judges can=20 order the general attorney to bring these evidences to the = court.
3.=20 Regarding the action taken by the convicts to deal with the = problem, the=20 panel of judges should have inquired supporting evidences to prove = that=20 the action had been taken in accordance to the protap and also as = optimum=20 as possible. For example, when there is a witness saying that an=20 investigation had been carried out, the panel of judges should = have asked=20 about the identity of perpetrators investigated, who the victims = might be,=20 the proof in form of report and so on.

2.4 Analysis on the witness and their information

Note: The analysis is done by using law on witness. Since HRC = Law no.=20 26/2000 does not regulate proving tools completely, this Law = refers to=20 Criminal Code no. 8 year 1981. Asides from that, an analysis is = also=20 conducted based on the elements of charge made by the general = attorney.=20

1. The party inquired first as witness should be the victim = witness=20 (article 160 verse 1 sub verse b Criminal Code). However, until = late April=20 2002 none of witness inquired in the trial is victim witness. = Witnesses=20 summoned are convicts in other cases of gross violation of human = Rights in=20 East Timor or those who have or had relations with convicts either = as=20 superior or as subordinate.

2. Witnesses summoned should be prevented from seeing each = other before=20 giving information in the trial. This is to prevent them from = influencing=20 each other and thus their information is no longer independent. = Witnesses=20 summoned should not be prisoners or people within one department = because=20 there is possibility that they see each other and prepare = advantageous=20 information in court.

3. Witnesses summoned by the general attorney should be a de = charge=20 witness (one that is for the convicts - summoned by the convict = and his=20 lawyer) and not a charge witness (one that against the convicts - = summoned=20 by the general attorney. For example, testimony saying that no = member of=20 TNI/Polri was involved in the chaos or testimony that the convicts = had=20 taken preventive action and investigation so that the chaos could = be=20 localized.

4. Witness information has to be information received from one = in=20 accordance to a criminal act that he heard, saw or experience and = by also=20 mentioning the reason he has information. Witness information is = not=20 opinion or assumption acquired through personal thoughts or = information of=20 an incident he obtained from other people's story (testimonium de = auditu).=20 However, some witnesses summoned by the general attorney is not in = accordance with the Criminal Code since they received some = information not=20 from hearing, seeing or experiencing themselves but from reports,=20 information, newspaper or radio and so on.

5. The argument given by the witness that the cause of the = chaos is=20 UNAMET fraud being the trigger of the anger of the pro-integration = group=20 fell by itself since UNAMET has reported that that fraud did = occurred but=20 it was not so significant as to change the overall result of the=20 referendum and the Indonesian government had officially = acknowledged it.=20 However, the general attorney and the panel of judges let this = argument=20 stand without referring it to written evidences attached in KPP = HAM report=20 on East Timor.

6. Some witnesses who knew the incident and were on the spot = stated=20 that they forgot. Thus they could not explain how the incident = happened in=20 details. However, no effort was made by the general attorney and = the panel=20 of judges to help witness recall the incidents he experienced. =

7. The testimony made by these witnesses has not been able to = prove the=20 general attorney's charge that the subordinates under the control = of the=20 convicts have committed violations against human rights in form of = murder=20 or assault and that the convicts did not try to stop or = investigate the=20 act committed by their subordinates.
a. Since testimony made in = the=20 court has not been able to show that, for instance, A as a = subordinate of=20 the convict has committed murder or assault toward one or more = civilians,=20 it also failed to prove that the murder and assault is a part of a = systematic and widespread attack and that after the convict knew, = he did=20 nothing to stop or investigate the incident
b. The testimony of = the=20 witness indicates that the cause of chaos and the conflicting = parties are=20 the anti-integration and pro-integration groups while TNI/Polri's=20 involvements in drilling, training and weapon stocking were not = admitted=20 by the witness. Thus, it is not easy to prove their involvement in = this=20 incident.
c. The testimony also strengthens convicts' position = and=20 crumbles the elements of charge, especially the information about = their=20 efforts in dealing with the chaos. The witness stated that if the = convicts=20 remained in their offices and did nothing, Father Bello might be = dead by=20 now or that the chaos would not only occur in 4 district but also = in all=20 parts of East Timor.

III. Conclusion

In terms of its capacity to prove the charge, the inquiry = process of=20 witness summoned by the general attorney until late April 2002 is = still a=20 concern. The general attorney seemed hesitant and less = explorative.=20 Witnesses summoned by the general attorney were not strong enough = to prove=20 the charge put by the general attorney. The indictments include = "attack on=20 civilians" as part of the charge, however, during the witness = examinations=20 the whole Court System (i.e. Attorney, Judges, and Defendants) = seem to=20 "agree" to use the term "chaos" instead.

This witness inquiry process has the implication to the proving = of=20 elements by the general attorney in his attempt to prove that the = chaos in=20 East Timor was a widespread one and that it was a part of = TNI/Polri=20 security policy in East Timor. The testimony tends to crumble the = charge=20 put by the general attorney. Meanwhile, the general attorney and = the panel=20 of judges failed to explore and dig further into the existing = facts and=20 testimony to prove the charge and the existence of systematic = elements.=20 Instead the witnesses are given the chance to conclude their own = analysis=20 and opinion on the incident, not to testify as regulated in the = Criminal=20 Code.

Therefore, in order to make the witness inquiry process more = effective=20 and efficient it is advisable for the general attorney to put = priority to=20 victim witnesses or witnesses with no direct relation to convicts = kin or=20 professional. The general attorney should avoid summoning fellow = convicts=20 since they have no proving obligation and their statement can be = used=20 against them. They should also avoid summoning witnesses with the=20 potential of becoming the convicts in the violation against Human = Rights=20 case. Therefore, the general attorney should put forward other = victims or=20 evidences. The general attorney should also refer to the letters = or=20 statements made by the convicts or witnesses, charge files, and = reports=20 given by relevant parties.

-o0o-

Jakarta, 14 May 2002.
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