The Prosecutor v. Joao Franca da Silva Alias Jhoni Franca

Relevant Sections

- Crime against Humanity – Rape – Section 5.1(g) of UNTAET Regulation 2000/15

- Crime against Humanity – Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law – Section 5.1(e) 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

The widespread or systematic attacks were directed against the civilian population in East Timor in 1999. The widespread or systematic attacks were part of an orchestrated campaign of violence, that included among other things incitement, threats to life, intimidation, unlawful confinement, assaults, arson, and other forms of violence carried out by members of the pro-autonomy militia, members of the Indonesian Armed Forces, TNI (Tentara Nasional Indonesia) in 1999, Police Forces with the acquiescence and active participation of Civilian and Military authorities.


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.


Aurea Cardoso

Aurea Cardoso and her two children were hiding at the house when she was attacked by militia. She was informed that she and her two children were to be arrested by the militia because they could not locate her husband Sebastiano Amaral.


On the next day Joao Franca Da Silva interrogated Aurea Cardoso on the whereabouts of her husband and whether she supplied food to FALINTIL while threatening her stating that he would cut off one of her children's ear and force her to eat it if she does not comply. Aurea Cardoso and her two children were detained at the KORAMIL in Lolotoe sub-district. Aurea Cardoso and her two children were released sometime in July 1999.


Amelio Belo

Joao Franca tied Bendito Da Costa and Amelia Belo's hands behind their backs. Subsequent to which they along with their two children were forced to walk to Lolotoe which was approximately a 2-hour walk.


When they arrived at Lolotoe, Bendito Da Costa, Amelia Belo and their two children were taken to the KORAMIL, where they were placed in a small room and locked up. Bendito Da Costa and Amelia Belo along with their children remained in detention in a small room without proper sanitation facilities. The detainees were subjected to extremely unhygienic conditions and were not given food or water regularly until sometime in July 1999.


Mariana Da Cunha

Mariana Da Cunha was imprisoned and subjected to severe deprivation of Physical Liberty in violation of her fundamental rules of international law. She was an independence supporter and that was a common knowledge in East Timor because of which she was taken and detained. She was then taken to a house in Lolotoe, where she was held against her will for six nights.


Victims A, B, and C

Joao Franca Da Silva was at his house where Victim A, Victim B and Victim C were held against their will for approximately one week, during which time they were forced to cook for members of the militia.


Sometime in May 1999, Joao Franca and other KMP militia members thereafter took Victim A, Victim B and Victim C to the PKK building in Lolotoe. Victim A, Victim B and Victim C were held against their will at the PKK building for 3 days. A few days later, Victim A, Victim B and Victim C were later moved to the house of Joao Franca and were forced to stay there for approximately one month. During this time, Victim A, Victim B and Victim C were forced to cook for Joao Franca Da Silva.


On or about 8 July 1999 Victim A, Victim B and Victim C were taken back to Guda Village and were then returned to their respective homes. Throughout the period of their detention, Victim A, Victim B and Victim C were guarded and their movements were controlled. They lived on the threat of death and believed that they had no option other than to obey their captors.


Joao Franca Da Silva alias Jhoni Franca was convicted for Imprisonment or other severe deprivation of physical liberty according to Section 5.1 (e) UNTAET Regulation 2000/15, and Torture according to Section 5.1(£) UNTAET Regulation 2000/15. He was individually criminally responsible for the crimes alleged against him in the indictment in violation of Section 14 of UNTAET Regulation 2000/15 and was criminally responsible as superior for the acts of his subordinates in violation of Section 16 of UNTAET Regulation 2000/15.


Observation

During the armed conflicts, it is highly important to notice how several crimes are committed to not hurt that particular individual but to hurt a society as a whole in order to assert dominance.


Torture tends to be experienced by those groups who are marginalized in the society and the victim status often impact on whether and how they face violation. Torture is most often bent to fit in a patriarchal society by way of asserting dominance over one gender, ethnicity, or society. Women become a substitute for punishment when their spouses or family members could not be captured.


When we look at the acts of the accused, the Court took cognizance of Torture and Deprivation of Physical Liberty. However, the prosecution and the Court have not considered the act of the accused which aided in the offence of rape against Victim A, B, and C. Although Jhoni was not directly involved in the commission of the offence, it was him who opened his house for the victims where they were raped by Jose Cardoso, Bambang Indra and Francisco Noronha. Although these three accused were tried before the Court and were found guilt for rape, the prosecution has failed to highlight the fact that Jhoni Franca has an equal role in this offence as he has abated the crime by opening his home and acknowledging what was happening.