Crime against Humanity - Rape – Section 5.1(g) of UNTAET Regulation 2000/15
Crime against Humanity - Murder – Section 5.1(a) of UNTAET Regulation 2000/15
Charges of the accused/Focus Topics
Crime against Humanity - Rape
According to Section 5.1(g) of UN Regulation 2000/15, Rape includes Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.
Crime Against Humanity – Murder
For the purposes of the 2000/15 Regulation, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack and directed against any civilian population, with knowledge of the attack and it includes murder.
Facts and Summary of the case
In 1991, a widespread and systematic attack took place which was directed against civilians of all age groups, predominantly against individuals who supported or were perceived to support the independence movement. Civilians of East Timor participated and 78.5% voted against the autonomy proposal by the government of Indonesia which resulted in a reign of violence including Incitement, threats to life, intimidation, unlawful confinement, assaults, forced displacements, arsons, murders, rapes, torture and other forms of violence which were carried out by the members of pro-autonomy militia, members of Indonesian Armed Forces and members of Indonesian Police Forces who supported autonomy within Indonesia.
As part of the widespread and systematic attack against the civilian population, the militia destroyed the infrastructure of East Timor, including housing and livestock belonging to the civilian population. Along with destruction property, other crimes such as incitement, torture, persecution, deprivation of physical liberty, murder, and rape was committed to threaten the civilians from voting for or supporting independence of East Timor.
In the Covalima District, the Mahidi Militia group was formed and it operated along with TNI and the Police Force with the goal to eradicate all independent movement supporters and to impose restriction and to threaten the lives of the civilians. The accused Domingos Mau Buti and Adriano Nascimento were the members of the Mahidi militia group who were deployed to serve the purpose to maintain autonomy in East Timor.
On 27 March 1999, militia under the command and control of Lino Barreto and Guilhermino de Araujo gathered at Lino Barreto's house in Mape. Manuel Magno, one of the members of the militia group, told other militia members that they were all to attend a funeral. However, on their way to the funeral, they diverted and planned to go on an operation to abduct the family of Luis da Silva who was an independence supporter.
Upon arriving at Luis da Silva's house, the militia, including Domingos Mau Buti and Adriano Nascimento entered the house and tied up Luis da Silva, his pregnant wife Fatima Mesquita and their 6-year-old daughter Sabina Mesquita. Some militia took Luis da Silva in the first vehicle, while other militias took Fatima and Sabina Mesquita in a second vehicle.
Adriano Nascimento stabbed Sabina Mesquita in the chest because she was crying. Sabina Mesquita died as a result. The militia then threw Sabina's body in an irrigation canal. Domingos Mau Buti and Adriano Nascimento raped Fatima Mesquita on the side of the road and ditched her body into a deep well after killing her with a samurai sword. Her husband met with a similar fate where Adriano Nascimento stabbed Luis da Silva and Domingos Mau Buti hacked da Silva in the head with a samurai sword which led to his death.
The accused Domingos Mau Buti and Adriano Nascimento were convicted for Crimes against Humanity, i.e., Murder and Rape of Luis da Silva, Fatima Mesquita and their daughter, Sabina Mesquita.
The tactic of using sexual violence during an armed conflict impacts more on civilians as sexual violence has greater traumatic implications. Often sexual violence is used to either attack women directly or to use it as a weapon against the family.
It is pertinent to note how the pregnant wife of Luis and their 6 year old daughter fell prey into the hands of both the accused. When Luis da Silva was murdered, his wife was threatened, raped and then killed.
It is important to notice the level of atrocity that varies when it comes to gender. Gender Jurisprudence specifically talks about the social, political and economical discrimination that a person goes through inherently due to gender. Although the Court took cognizance of the crime, the Court has not considered the gravity of the crime where a pregnant woman was raped and then murdered followed by the murder of a daughter, who was 6 years old, murdered for crying while being abducted.
Sexual violence during an armed conflict can be an outcome of two strategies, it either could be a result of absence of a strategy and resorting to sexual violence to terrorize people, or it could be the result of a strategy that has been planned out to terrorize people. Either ways, sexual violence is used during an armed conflict as a extra weapon to threaten the civilians.