- Crime against Humanity - Rape - Section 5.1(g) 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.
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.
During the armed conflict, several militia groups were formed and formally inaugurated with the goal to support autonomy within Indonesia and to put an end to the independence movement. One of the groups was the Laksaur militia group which operated with impunity and participated in the systematic attack against the civilian population in the Covalima District.
All the accused were the commanders of different militia groups in different districts carrying the goal of suppressing the independence movement by way of torture, deprivation of physical liberty, rape, persecution and murder.
Victim A, B, C, and D were subjected to threat and rape during the armed conflict where they were moved from their homes and forced to go to refugee camps.
Victim A was a member of the independence movement and the wife of the leader of an independence movement. Victim A and her family were present in their house along with the other villagers who were pro-independence supporters, when members of the Laksaur militia and TNI attacked them in their home. They sustained injuries as a result of the attack after which victim A and her husband sought refuge at the church until the month of September when the church was finally attacked by the militia.
Victim B and her husband were clandestine members of the pro-independence movement. She used to provide food for Falintil members in the village. Victim B and a husband sought refuge at the church when they heard about the attack and the killing of pro-independence supporters.
After the attack in the church in September, members of the militia gathered the villagers including victim A and B and took them to the Kodim in Suai. Whereas victim C and her three children along with other villagers were taken to the high school in Suai Town.
During victim C’s detention at the school, she was repeatedly questioned about the whereabouts of her brother, an independence-movement supporter. When victim C hesitated and did not give in to the interrogation, she was threatened that she would be raped unless she disclosed the whereabouts of her brother. Victim C along with other villagers were not allowed to leave the premises of the school.
Victims B and C were then taken to refugee camps which were guarded by the militia.
One of the accused, Olivio Tatoo Bau, forcibly took Victim A into his car where they took her took her to a far away place and was forced to have sexual intercourse without her consent with Edigio Manek and Victim A had to oblige knowing that Olivio Bau was carrying a rifle.
Accused Francisco took Victim B to a far away place and was forced to have sexual intercourse without her consent.
Olivio Bau remained in the car with Victim C while Victim A was taken away by Edigio Manek. He threatened her with his rifle, and she was forced to have sexual intercourse without her consent. After which he took Victim B to a far away place and forced her to have sexual intercourse without her consent in her son’s presence where he was watching his mother being raped.
After the church attack, Victim D along with her children and other villagers were taken to High School in Suai Town. During their stay in High School. Victim D was forcibly removed from the group and was taken to a classroom along with her son where she was tied with a rope and raped multiple times without her consent. The accused kept coming back to the classroom and indulged in sexual intercourse without her consent.
The Court took cognizance of the crime committed as Crimes Against Humanity and convicted all accused for rape and several other crimes as per Section 5.1 (g) of UNTAET Regualtion 2000/15.
During an armed conflict, the act of threat of rape or of the commission of rape cannot be viewed as an ordinary crime as it is frequently used to terrorize people because of which the UN Resoltuon has recognized rape during an armed conflict to be a Serious Crimes Against Humanity. The founding statutes for the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda (ICTR) both included the crime of rape as a crime against humanity. The act is committed against women who are either members of the independence movement or belong to a family that supports the independence movement and it was tacitly accepted as unavoidable or inevitable.
One of the rape victims (Victim C) was raped during interrogation int order to attain details of her brother. We see how rape is used as a weapon by the Armed militia to threaten women by harming them directly and threatening men by committing act of rape on their wives or women who belong to their families. The victims were forced as the accused, who was carrying a rifle, had threatened to kill their families.
Children were forcibly made to watch the act of rape committed on their mothers without their consent, disregarding their physical and mental health. The mental trauma that the son would go through watching his mother tied with ropes in a classroom and being continuously raped multiple times will lead to mental distress. The accused kept coming back to the classroom to rape her and this act continued for 3 months.
It is pertinent to note that any form of sexual violence on any gender during an armed conflict is recognized by the UNTAET Regulation 2000/15:
5.3 For the purpose of the present regulation, the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.
This recognition by the Statute is significant in international crimes as sexual violence, during an armed conflict, often has no relation to sexual desire, instead it is related to power, dominance and abuse of authority which will in turn terrorize the civilians.
__  Statute of the International Tribunal for the Former Yugoslavia, Art. 5(g), SC Res. 827, annex (May 25, 1993).