- Crime against Humanity - Rape - Section 5.1(g) of UNTAET Regulation 2000/15
- Crime against Humanity - Torture - Section 5.1(f) of UNTAET Regulation 2000/15
- Crime against Humanity - Other Inhumane Acts - Section 5.1 (k) 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 - Torture
According to Section 5.1(f) of UN Regulation 2000/15, Torture means the “intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.
- Crime against Humanity - Other Inhumane Acts
According to Section 5.1(k) of UN Regulation 2000/15, ‘Other inhumane acts’ is of a similar character intentionally causing great suffering, or serious injury to the body or to mental or physical health.
Facts and Summary
In 1991, a widespread and systematic attack took place because civilians of East Timor participated and 78.5% voted against the autonomy proposal by the government of Indonesia. The reign of violence included 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.
Under the terms of the 5th May 1999 Agreements, the Indonesian Security Authorities had the responsibility to ensure a safe environment for the civilians and general maintenance of law and order during the consultation. Despite the agreements, the Indonesian government went ahead and started the attacks on civilians for supporting independence.
Each accused, namely, Lt. Bambang Indra, Joao or Jhoni Franca, Jose Cardoso also known as Mouzinho, Francisco Mornoha and Sabino Laite were held individually criminally liable under Section 14 of UNTAET Regulation 2000/15 for:
Count 1: Unlawful deprivation of physical liberty as Crime Against Humanity
Count 2: In the alternative with deliberate intention unlawful deprivation of physical liberty
Count 3 and 10: Torture as crime against humanity (counts 3,10)
Count 4: In the alternative serious maltreatment
Count 5: Inhumane acts as crime against humanity (count 5)
Count 6: Rape as crime against humanity (count 6
Count 8: In the alternative a crime of rape in violation of Section 8 UR 15/2000 and Article 285 of Indonesian penal code -IPC-
Count 11: Murder as crime against humanity
Count 12, 13, 14, and 15: In the alternative a crime of murder in violation of section 340 IPC
Count 16: Persecution for political reasons as crime against humanity
In the Lolotoe sub district of Bobonaro, which is one of the thirteen districts of East Timor, the Indonesian Armed, especially the TNI under the command of 2nd Lt. Bambang Indra who had authority and control over the TNI, worked in close co-operation with two of the principal armed militia groups.
Between April and October 1999, both the TNI in Lolotoe subdistrict and the KMP militia conducted acts of violence against those members of the civilian population in Lolotoe who supported the independence movement. 2nd Lt. Bambang Indra, Joao Franca Da Silva alias Jhoni Franca, Jose Cardoso Fereira alias Mouzinho and Sabino Gouveia Leite instigated acts that were subsequently committed by their subordinates.
During the attacks, several victims were either tortured, or deprived of physical liberty or murdered or raped.
Bendito Da Costa
Bendito Da Costs was a 65-year old man who supported the independence movement. Accused Jose Cardoso ordered the other members of the group to beat and to tie Bendito Da Costa to a pole in his own house and ordered his wife, Amelio Belo, not to untie him. Next day, Bendito’s and Amelio’s hands were tied behind their backs and were forced along with their children to walk to Lolotoe where they were placed in a small room and locked up until July 1999. Bendito Da Costa gave the accused some sandalwood and was released soon thereafter along with Amelio.
We can see how the accused has detained and locked up Bendito, an old man, in an unhygienic place without any proper food or water along with his wife and children. Bendito along with his wife and children underwent physical deprivation of liberty, tortured, and was faced with inhumane acts. Although, the Court recognized the crime of Deprivation of Physical Liberty (FIND) and torture, the Court did not recognize the crime of inhumane acts due to lack of evidence of severe harm caused on victims. Detaining Bendito and Amelio along with children were detained along with 14 other people where they had to sleep on cement floors and were not provided with proper food or toilets definitely caused mental harm, if not physical harm.
We can see the Court failing to look at the events as a part or process of an armed conflict where, at that time, the victims did not know if they would be released.
Aurea Cardoso and her two children were hiding as they knew they would be harmed due to their support for the independence movement. The militia started pelting stones at the house they were hiding which forced her to escape through the window. The accused informed Aurea that she would be arrested as they could not locate her husband. Aurea and her children were detained at KORAMIL along with 14 other people with poor hygienic conditions where she was interrogated and threatened that she would be forced to eat one of her children’s ears if she fails to answer.
The Court held Jose Cardoso guilty of Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.
Note the fact where the victim was targeted here because the accused couldn’t locate the victim’s husband. Although justice was served legally, the social aspect where the wife is targeted and tortured because the husband could not be located is where the problem lies. The weapon of targeting spouses, especially wives, to secure a leash around their husbands is a practice that is seen throughout the attack in East Timor.
Victims Mariana Da Cunha, Mario Gonsalves, and others were deprived of her physical liberty, tortured, Mariana Da Cunha was murdered and Mario Gonsalves was forced to eat his own ear and his mouth was inspected to see if he had eaten it.
Victim A, Victim B and Victim C
In May 1999 the Accused along with soldiers and TNI members went to Zoilpo where Victim A was staying and captured her. She was imprisoned in Sabino’s house. Victim B and Victim C were threatened that if they don’t go to Lolotoe, their families would vanish. They were detained at Sabino’s house for 6 days. Later on, Victim A, Victim B and Victim C were then taken to the house of Johni Franca where they were imprisoned for a number of weeks until July, 1999.
Victim A, Victim B and Victim C were later taken to a hotel in Atambua where they were kept for 3 nights. During their stay in the hotel, the victims were aware of the fact that the accused Jose Cardoso was carrying a gun; they were threatened that they would be killed or their bodies would be thrown into sea if they didn't comply and rapaed by the accused Jose Cardoso, Bambang Indra and Francisco Noronha. Victim B was injected with medicine and was told that it was to prevent her from getting pregnant. On different nights, the victims were threatened to take turns and have sexual intercourse with all three accused.
During the trail, Section 12 of UN Regulation 2000/15 was looked into to understand whether the person shall be charged for a crime that wasn’t a crime at the time of submission and the person is presumed innocent until proven guilty. With regards to inconsistencies between written statements before trial and oral statements before Court, the Court decided to take the oral submission before the Court into consideration.
Trial Chamber I of the ICTR has held, in the case Prosecutor v. Akayesu, that in formulating a definition of thc crime of rapc it should be assumed that "the central elements of the crime of rape cannot be captured in a mechanical description of objects or body parts." It stated the following:
Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or others acting in an official capacity. The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive.
The Trial Chamber went on to consider the circumstances in which rape could be construed as a method of genocide, in which the perpetrator does not immediately kill the members of a particular group but nevertheless causes the physical destruction of that group.
Court acknowledged the fact that crime of rape charged as a crime against humanity incorporates into the definition of rape what has been termed as "the chapeau elements" of the definition of crimes against humanity. One of these chapeau elements is that the perpetrator has the appropriate mens rea where the perpetrator is aware of the fact that it is a part of the widespread attack. The victims of all the offences for which the accused has been charged in Amended indictment were in some way or the other linked to the pro-independence cause.
The Defence has taken the defence of consent where they mentioned that there was consent from the side of the victim which makes it not an act of rape. However, the Court stated Section 34.3(b) of UN Regulation 2000/15 which states:
(b) consent shall not be allowed as a defence if the victim:
(1) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or
(2) reasonably believed that if the victim did not submit, another person might be so subjected, threatened or put in fear;
Here, we can see the Court stating that rape cannot be justified if there is consent when the victim was threatened or was made to believe that there would be deadly consequence if the victim does not comply. In the case of Victim A, Victim B and Victim C, they knew Jose Cardoso was carrying a gun and they were continuously told that their families would be harmed if they didn't agree.
Court held Jose Cardoso individually criminally liable under Section 14 of UN Regulation 2000/15 for abetting, aiding and committing the crime of rape of the victims.
During the case, we notice the use of torture, deprivation of physical liberty and rape of victims either directly or indirectly connected to the independence movement. As we dig deeper, during an armed conflict, any crime done is viewed or is to be viewed differently as the motive is not merely personal but is a part of the bigger process, that is, widespread attack. Often we see the ignorance of the Court to understand that it was a systematic attack and every offence committed must bear a higher sense of liability because of which certain inhumane acts were not considered under Other Inhumane Acts.
The concept of rape and the gravity of the issue is higher when it is during wartime or any armed conflict. Jose Cardoso claimed that he committed the rape only due to superior orders and that one of the victims allegedly consented to the intercourse. The Court did not address Cardoso's claim of consent directly. Court stated UNTAET Regulation No 2000/15 that relate to sexual assault cases to determine that threat or fear or any duress or violent circumstances negate consent and does not apply if the victim consents as the victim might have consented due to fear of their own life.
There were unnecessary lengthy delays that created long periods of pretrial detention, as well as problems in achieving 'equality of arms' before the Special Panel. Cardoso had five lawyers represent him throughout the trial at various times, while the Defence generally had far fewer resources than the Prosecution.