- Jurisdiction Section 2 of UNTAET Regulation 2000/15
- Serious Criminal Offence, Section 5 of UNTAET Regulation 2000/15
- Section 8 - Section 9 of UNTAET Regulation 2000/15
- Serious Criminal Offence, Section 4 - Section 7 of UNTAET Regulation 2000/15
Section 5 provides for 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: Murder, Extermination, Enslavement, Deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, Torture, Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, or Persecution.
- Section 9 of UNTAET Regulation 2000/15 provides for Sexual Offence - For the purposes of the present regulation, the provisions of the applicable Penal Code in East Timor shall apply.
The main difference between Section 5.1(g) and Section 8 is that the former looks at Rape through the lens of a widespread and systematic attack, where rape is used as a weapon during an armed conflict whereas the latter requires the need to look at the offence in either isolation or as an offence which is not a part of a widespread or systematic attack.
Facts and Summary
On or about 10th September 1999, in a village of Betun, West Timor, Leonardus Kasa, an East Timorese citizen, forced a lady (name unknown), an East Timorese citizen, to have sexual intercourse with him outside of marriage.
The Prosecution filed charges of rape against the accused to have him indicted in Special Panels for Serious Crimes.
However, the defence claimed that the victim at that time complied to the sexual act and there was consent from both the sides which makes it not rape but adultery, which is not a serious crime that falls under the ambit of Section 4 to Section 7. Hence, there is lack of jurisdiction and the Special Panels do not have the jurisdiction to try the case since the sexual offence was committed outside East Timor.
The Special Panel decided that “according to UNTAET Regulation 2000/15, the Special Panel for Serious Crimes within the District Court of Dili does not have the jurisdiction to try this case. It does not mean that the alleged crime of rape had not been committed nor that Leonardus Kasa is acquitted from the charge of rape. It means that no East Timorese Court, according to the laws in force at the present time, could try this case. An Indonesian Court could try it or an East Timorese Court in the future might try it if the rules about jurisdiction will be changed”.
The offence was committed on or about 10th September in West Timor, where an East Timorese lady, the victim, was forced to have sexual intercourse with Leonardus Kasa.
The case was dismissed on the ground of it being Adultery which makes it a sexual offence that falls under Section 9 and not rape under Section 5.
According to the Regulation 2000/15, Special Panels have universal jurisdiction if:
The offence charged are from Section 4 to Section 7 (Genocide, Crimes Against Humanity, War Crimes, and Torture) according to the 2000/15 Regulation
Special Panels have exclusive jurisdiction if:
The charges are serious criminal offences listed under Sections 8 to 9 of the 2000/15 Regulation, and
The offence was committed between 1 January 1999 and 25 October 1999.
The Special panel cannot have universal jurisdiction as it is an ordinary crime under Section 9 and it cannot try the case as the offence was outside East Timor. If the offence were to fall under the ambit of Section 5, the case would have gotten tried as there would be universal jurisdiction, or if the offence would have happened within the territory of East Timor, the Special panels would have had exclusive jurisdiction.
We see the failure of the Judiciary to acknowledge the fact that Rape or sexual offence being used as a weapon of war during armed conflict. During the systematic and the widespread attack on East Timor in 1999, sexual offence was used as a method of attacking citizens. It was used as a weapon to attack people who were the supporters of independence. Women were threatened and raped repeatedly for either supporting independence or when their spouses or family members supported independence. The defense has tried to argue the case by stating that the offence took place in isolation and not as a part of the systematic offence, hence making a case under Section 9 and not under Section 5.1(g) which is, Rape as a Crime Against Humanity.
The Prosecution during the trial has ignored the reality and the background where the victim was displaced during the attack. On September 5, 1999, the victim along with her children was displaced from East Timor to a refugee camp located in the warehouse of Betun in West Timor where a lot of crimes happened. Note the offence was committed on September 10th. If the courts were to consider the harsh reality where people were displaced and considered that the victim underwent the alleged crime right after displacement, the trial would have taken a different better turn.