REPUBLICA DEMOCRATICA DE TIMOR-LESTE RDTL

TRIBUNAL DlSTRlTAR. de DBBl SECGAO CRIMES GRAVES

Casc No. 04al200 I Date: 05 / I 212002 Origi~inl: English

Before: Judge Sylver Ntukamazina, Presiding Judge Benfeito Mosso R a ~ n o s Judge Maria Natercia Gusmao Perreira

Registrar: Joao Naro

Judgement of: 05 December 2002

%WE PROSECUTOR v.

Joao Franca da Silva Alias Jhoni Franca

The Office of the Public Prosecutor: Mr. Essa Faal Mrs Shamla Alagendra

Counsel of the accused Mr. Sipllosan~i Malunga

1 The trial of Joao Franca da Silva Alias Jhoni Francn (aged 27, single, born on the 26'" July 1975 in Lolotoc, District of Bobonaro, East Timor) bcf'orc the Special Panel for thc Trial of Serious Crimes in the District Court of Dili (hereafter: the "Special Panel"), responsible for the ha~~dl ing of serious criminal offences, commenced on the 4"' March 2002, was suspended iilany times including a suspension of 5 1110nths for ~invaibility of judges, and concluded today, the 6th Decenlber 2002 with the rendering of the decision.

2 After considering the plea of guilty made by the accused, all the evidence presented during the trial, and the written and oral statements fro111 the office of the Prosec~ltor General (hereafter: the "Public Prosecutor") and also thc defendant and the defense f o ~ the defendant, the Special Panel.

HEREBY RENDERS ITS JUDGEMENT.

A. THE SPECIAL PANEL

3 The Special Panels were established, within the District Co~lrt in Dili, pursuant to Section (hereafter "Sect.") 10 of UNTAET Regulation (hereafter "U.R.") no. 200011 1 as amended by U.R 2001125, in order to exercise jurisdiction with respect to tlie following serious criminal offences: genocide, war crimes, crimes against humanity, murder, sexual offences and torture, as specified in Sections 4 to 9 of U. R. 2000115.

IS. PROCEDURAL BACKGROUND

4 On 6 February 2001, the Public Prosecutor filed before the Dili District Court a written indictment (in English version) against the accused 2"d Lt. Ba~nbang Indra, Joao Franca Da Silva alta Jhoni Franca, Jose Cardoso Mouzinho, Fransisco Noronlla and Sabino Go~iveja Lete. The acc~lsed Jhoni Franca was charged in five counts with Unlawf~ll deprivation of physical liberty as crime against ll~unanity (co~mt I ) or in alternative unlawftll deprivatioii of physical liberty (count 2)) torture as crime against hun~anity (count 3) 01- in altci-native

sc r io~~s maltreatment (Count 4), Persecution for political reasons as crimc against 11~1ma11ity (Count 16).

5 Attached to the indictme~~t were copies o r the f'ollo~ving doc~~rncnts: thc statements of thc witnesses Orlando Lcao Ati, Domingos A~ig~isto, Cyr~is Banquc, Norbcrto Belo, Joao Bclo, Mcrmino Bclo, A~nclia Bclo, Aurca Cardoso, Josc Cardoso Ferrcira aka Mouzhinho, Mariana da Cunha, T o ~ n ~ l s Da Costa, Olivia Juvita Dos Rcis, Agrefina Dos Santos, Anibal Ferrrcira, Mario Gonsalvcs, Rosa De Jesus, Josc Gouveia Leitc, Fcrnanda Dc Deus Martins, Adao Manuel, Jose Moniz, Isabel Da Costa Maia, Angela Tcrcza Moilis, Lius Monis, Jose Monis, Eugenio Noronha, Josc Perreira, Judith dc Deis Sarmento, Anapaiila Soares Ximcnes. The list of the victims that forms an integral part of tlie indictinent was attached as annex A and contained Victim A, Victim B, Victiin C, Amclia Bclo, Mariana Da Cunha Hcrminio Da Graca, Jose Leitc, Aurea Cardoso and her two children, Rosa De Jcsils, Bcndito Da Costa, Adau Manuel, Mario Gnsalves, Carlito Freita, Mariana Da Costa, Antonio Franca, Augusto Noronha, Villagers of Guda, Gudatas, Raiinea, Sibi and other villages in Lolotoe. Tlie F~lll naincs ofvic t in~ A, B and C were contained in Annex B filed together with the indictment, wl~icli precise that the list of victims shall not be disclosed, that the victim has to be referred to only by the pseudonyms given to them. All annexes were an irtepral part of the indictment.

6 The Court clerk provided notification of the receipt of the indictment to the accused and to the legal representative of Joao Franca Da Silva alia Jhoni Franca, as well as to the co-accused persons Sabino Gouveia Leite and Josc Cardoso Ferreira aka Mouzinho, and their legal representatives, on 8 February 2001, pursuant to Sect. 26.1 and 26.2 U.R. 2000130.

7 Joao Franca da Silva Alias Jhoni Franca was arrested and detained on 5 February 2001. His arrest was then confirmed and ordered by tlie Investigating Judge.

8 On 16 February 2001 the Prosecution submitted an application for protective measures for victims of sexual offenses pursuant to Section 28.2 (b) of Regulation 2000130 on tlie Transitional rules of Crilninal Procedure with an affidavit in support of protective ineasures for victinls of sexual offenses.

9 On 3 April 2001, thc P~tblic Prosccutor madc a rccl~~cst Ibl- iss~ic 01' arrest warrant of tlic accits'cd ~ C S S O I ~ S Fransisco Noron11~ and l3anlba11~ lnilt-a bclicvcd to bc rcsiding in Indonesia.

10 011 5 April 2001, the Public Prosccutor transn~ittcd to the Court thc following original documents pertaining to detention of Jhoni Franca Da Silva and Sabino Gouveia Leitc: Warrant of arrest for Jhoni Franca ctntcd 5 February 2001, detention orders for Jhoni Franca Da Silva dated 6 February and 5 March 2001, warrant of arrcst of Sabino Gouvcia Leitc dated l'[ December 2000, detention Order of sabino Gouvcia Leite dated 6 Dccembcr 2000, detention order for Sabino Gouveia Leitc dated 5 January 200 1 and dctcntion order for Sabino Gouveia Leite dated 5 February 2001. She submitted also the witnesses statelnents of Anibal Pereira (27/9/00), Mario Gonsalvcs (4/8/00), Rosa de Jesus (418100), Jose Gouveia Lete (1 8/8/00), Fernancla de Deus Martins (2/10/00), Adau Manuel (4/8/00), Isabel da Costa Maya (7 /9/00), Angela Teresa Monis (6/7/00), Luisa Monis (27/09/00), Jose Moniz (1 8/8/00), Eugenio Noronha (3/8/00), Jose Pereira (26/9/00), Judith Dos Rcis (5/6/00), and Anapaula Soares Ximenes.

11 At the same date, the original following witnesses statements were produced before the Special Panel: Witnesses statements of Orlando Leao Ati (25/9/00), Domingos Augusto (2 81 1 1 loo), Cyrus Banque (1 41 ?/C J): Norberto Relo (29/9/00), Joao Belo (0318/00), Herminio Belo (3/8/00), Anielia Belo (4/8/00), Aurea Cardoso (1 8/8/00), Jose Cardoso (27/7100), Mariana Da Cunha (8/9/00), Tomas Da Costa (26/9/2000), Olivia Juvita Dos Reis (2619100) and Agrefiila Dos Santos (1 7/8/00).

12 The preliminary hearing commenced on the 6th April 2001 and finished on the 5'" July 200 1.

13 On 6 April 2001, the Special Panel decided to extend time for the defense to prepare the case, the scverance of the charges against Bambang Indra and Fransisco Noronl~a from the otlier charges in the indictment, to issue a warrant of arrest requested for Ban~bang Indra and Fransisco Noronha and delivered a decision for protective measures of the three women who were allegedly victi~ns of rape, which will be referred to as " Victim A, Victim B and Victim C". The Court also extended the detention of the accused Joao Franca da Silva alias Jhoni Franca and Sabino Gouveia Leite for thc duration of thc trial. The preliminary hearing was postponed to 27 April 2001.

14 011 27 April 200 1 , d ~ ~ r i n g thc prcliminary hearing, tllc p~.oscc~rticjn rcspo~idcd orally ancl submittccl also writtcn rcsponsc to the prcliminary motion Iillccl by the dcfcnsc. T l ~ c Co~irt tool< thc case to dcciclc in chamber on tlic rnotio11 raiscd by tlic dcfcnsc. The Court found that the cliargc in thc illdictmcnt couldn't bc dcen~ed acc~rratc pursuant to Scction 24 U .R 2000130. The Public Prosecutor was grantcd lcave to amci~d tlie indictnicnt on tlic 28'" May 200 1 , and was given ~ l n t i l tlie ls t J L ~ ~ c 2001 to s~blliit thc ainendcd indictment. Tlic DeSense was aslccd to file the response to the alnended indictment bcforc the 7"' June 200 1. The preliminary hearing was postponed to 7 June 200 1 for the Public Prosecutor to file the amended indictment.

15 On 25 May 2001, the Public Prosecutor filed i n English thc alncndcd indictnient against the accused Joao Franca da Silva alta Joao Franca Da Siha aka Jhoni Franca, Jose Cardoso Ferreira alta Mouzhino and Sabino Gouvcai Leite. The Bal~asa version of the amcnded indictment was s ~ ~ b ~ n i t t c d on 4 June 200 1.

6 In tlie amended indictment, Jlloni Franca is charged of 8 counts oE (Count 14) Crimes against humanity: Irnprisoninent or other severe deprivation ol' physical liberty in violation of fundalnental rules of international law of Bendito Da Costa, Amelia Belo, Adao Manuel, Mario Goncalves, Jose Gouveia Leite, and Aurea Cardoso and her two children in Lolotoe sub- district, Bobonaro district, between May and July 1999, as part of a widespread or systematic attack against a civilian population with ltnowledge of the attack, a crime stipulated under Section 5.l(e) UNTAET Reg~llation 2000/15; (Co~lnt 15) Crimes against humanity: Imprisonlnei~t or other severe deprivation of physical liberty in violation of fundamental rules of international law, of Herminio Da Graca in Lolotoe sub-district, Bobonaro district, between May and July 1999, as part of a widespread or systematic attack against a civilian population with lcnowledge of the attack, a criime stipulated under Section 5.1 (e) UNTAET Regulation 200011 5 ; (Co~lnt 16) Crimes against humanity: Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, of Mariana Da Cullha in Lolotoe sub-district, Bobonaro district, sorneti~ne in May 1999 , as part of a widespread or systematic attack against a civilian population with lcnowledge of the attack a crime stipulated under Section 5.1 (e) UNTAET Regulation 2000/15; (Count 17) Crimes against h~uiianity: Ii~~prison~iicnt or otlicr severe deprivation of physical liberty i n violat ion of fc~ndamental rulcs of intcn~ational law, of Victim A, Victin~ B and Victin~ C in Lolotoe sub-district, Bobonaro disti-ict, sometinx betwccn May ancl July

I 1999 , ;IS part of' a wicicsprcad or systcmatic atlael\ agninst a ci\ 1lia11

popi~latio~i with l\nowlcdgc of the, crime stipi~latcd under Scct~on 5.l(c) UNTAET Iicg~~lation 2000/15; (Count 18) Tor t~~rc , as crirncs against humanity, of Bclidito Da Costa, Adao Manuel, Mario Go~~calvcs ancl Josc Gouvcin I cite, bctwecn May and July in Lolotoc sub-district, Bobonaro

. . . district, as part of a widcsprcad or systcn-ratic attacl.; against a c ~ v ~ l ~ a n pup~llation with l<nowlcdgc of the attack, a crinlc stipulated ~lndcr Section 5. I ( f ) UNTAET Rcgi~latio~l 2000/15; (Count 19) Crinics against humanity: other inhun~ane acts of similar character intentionally causing grcat suSfcring or serio~is illjury to body or i ne~~ ta l or physical health of Mario Goncalves i n Lolotoe Sub-district, Bobonaro district, sometime in May 1999, as part of a widespread or systelllatic attack against a civilian populatio~i with knowlcclgc of the attack, a crime stipulated under Section 5 (1~) of UNTAET Rcgirlatio~l 2000115; (Count 20) Crimes against liunlanity: other inhumane acts of similar character illtentionally causing great suffering or serious i11jury to body or mental or physical health of the civilians detained at various places in Lolotoe sub-district, between May 1999 and July 1999, in Lolotoe Sub-district, Bobonaro district, as part of a widespread or systematic attack against a civilian population with knowledge of tlie attack a crime stipulated under Section 5 (k) of UNTAET Regulation 2000115; (Count 21) Crilncs against humanity: Persecution of supporters of independence of East Timor in Lolotoe S L ~ ~ - L i~,rirt , Bobonaro District, between May and September 1999, as part of a widcspread or systen~atic attack against a civilian population with l~nowledge of the attack, a crime stipulated under Section 5.1 (h) of UNTAET Regulation 2000/15.

17 On 7 June 2001, the Court decided to grant the defense additional time to preparc the defense to the indictment, and set tlie date of the next hearing to 4th J ~ l y 200 1.

' 8 On 4 July 2001, the accused Joao Franca da Silva, Jose Cardoso and Sabino Gouveia Leite did not appear in Court. The hearing was postponed to 5 July 2001 for the prison manager to provide the presentation of the accused before the Court.

19 On 5 July 2001, the Preliminary hcaring was held pursuant to Section 29 of UNTAET Regulation 2001125. At the hearing the Court ascertainctl if the dcfcndant Jhoni Franca had read the indictment or i f the indictn~ent hacl bccn read to him, and asltcd if hc understoocl thc nature of the charges, his right to

bc rcprcscli~cd by a lc2:ll irdvisor, his right to r-ci~rniii silci~t, to plc;~d guilty 01- i

not guilty to tire ch:rrgcs, as provitled hi- it1 Sect. 30.4 U.R. 3012000. Tlrc DcScndant mntlc a stntcmcnt that he had read the intlicti~lent and undcsstoo~l tlic charges against hini. Tile salnc procctlurc was followcd for Iris co-occusctl Jose Cardoso and Sabino Gouvcia Letc. Thc Court tlrcn accepted the list of evidence submitted by the Public Prosecutor and the list of witncsscs submitted by the defence. The Court clisn~issed thc motion tilled by tlic dcfencc of Jhoni Franca requesting not to submit thc statcnicnts of tile accused and the witnesses to the Court bcforc the trial. Thc Court also overruled the request for release of the accused Sabino Gouveia Lcitc. TI'llc date of the trial was fixed on the 231d August 200 1.

20 On 10"' July 200 1, considericlg that the Special Panel for Scriorls Crimes was dealing for three weelts with the trial Ilearing of another case (Los Palos casc), decided to adjourn the trial hearing of Joao Franca alias Jhoni Franca casc to 18 Scptembcr 200 1. One 1nont11 later, on 13 August 2001, the preliminary hearing of the case was adjourned sine die, because of t11c continuation of the trial of Los Palos case.

On 22 October 2001 ,the Public Prosecutor submitted the following statement in Bahasa Indonesia: statements of Orlando Leao Ati (25/9/00), Domingos Augosto (2811 1/00), Cyrus Banque (14/9100), Norberto Belo (29/9/UOj, J o p ~ Belo (3/8100), Herrninio Belo (03/8100), Amelia Belo (0418/00), Aurea Cardoso (1818100), Jose Cardoso (2717100), Mariana Da Cul111a (08/9100), Tomas Da Costa (26/9100), Olivia Jnvita Dos Reis (2619/00), Agrefina Dos Santos (22110100), Anibal Perreira (2719100), Mario Gonsalves (0418100), Rosa De Jesus (04/8/00), Jose Gouveia Lete (1818/00), Fcrnanda DE Deus Martins (2110100), Adao Manuel (0418100), Isabel da Costa (0719100), Victiin A (0617100), Luisa Monis (2719100), Jose Monis (18/8100), Eugenio Noronha (03/8/00), Jose Perreira (26/9100), Judith Dos Reis Sarmento (516100) and Anapaula Soares Ximenes (0318100)

22 On 11 November 2001, date of the conclusion of the trial of Los Palos casc, the date of the trial of the present case was scheduled on 27 November 2001.

23 On 16 November 2001, the Public Prosecutor submittccl to thc Court the following documents: Statement of Victiiu B (2515100) in Tet~lm and English, and the statc~ncnt of Victim C (0617100) also in Tctuln and English.

I

24 On 20 Novcmbcr 200 1 , the l'rtblic Prosccr~tor lillcd the SoIlowing ciocul~ic~its: stntc~ncnts of Bcndito Da Costa datcd 4 Aug~ist 2000 in English and Tutum, statcmcnt of 1-Icrminio da Costa clatccl 7 Scptcmbcl- 2000 in English ancl Baliasa Indonesian, "Situation of Human Rights in East Timor, Notc by tlic Sccrctary Gcneral" in English and Baliasa Indotiscsian, "Rcport of tlic Indonesian Commission on tIuman Rights violation in East Timor", January 2000 i n English, Agenda Item 96 Qucstion of East Timor, in English and Bahasa Indonesian, Agenda Items 9 and 14 Co~nmission on I-luman rights fifty-sixth session in English.

25 On 27 November 2001, dul-ii~g the hcaring, the dcrensc [or Joao Franca and his co-accused filed a request for rclease of thc accuscd Jhoni Franca pending tlie trial. The Court rejccted the req~lest From the defense and dccidcd the extension of dctentioii of the acc~iscd for the duration of thc trial. The trial hearing was scheduled on the 8"' February 2002.

26 On 13 December 2001, the Public Prosecutor transferred to the Court a suininary autopsy report on bodies exhurned in East Timor from Febr~iary 16 to August 26,2000.

27 On 8 February 2002, the Public Prosecutor, tlie accused and their legal representatives, upon being called, attended at the hearing. After opening thc session, the court aslted the parties whether they were rcady for the trial, in which case the Court will go ahead with the opening statement of tlic Pctblic Prosecutor. All the parties informed the Court that they were ready, however, the Public Prosecutor raised the issue of submission of what kind of evidcnce tlie defense intends to present for the trial. The defense replied tliat tliere were still trying to meet the witnesses and looking for the evidence to subniit to the Court. The Court ordered the defense to submit a list of its evidence and the witnesses it intended to present for the trial by tlie 15"' February 2002. Thc Court postponed the trial hearing of tlie case to 22 February 2002. As 22"d February 2002 was a UN holiday, the hearing of the case was postponed on 4 March 2002.

28 On 15 February 2002, the defense of the 3 accused persons submitted the list of their witnesses. The Defense of Jhoni Fraiica sub~nitted a list of 9 witnesscs coinposed of Man~rel do Rego, Liang Monis, Carlos cia Costa, Filomcno AlConso Monis, Ronaldo Da Costa, Par110 An~aral, Luis Alfonso, Jacinto Miranda and Fatima Baas.

29 On 25 .[;~~~ual-y 2002, the Public 1'1-oscc~itor sirl~mittccl thc original Ictter I'l-om Sabino Gouveia Lcitc to Josc Gouvcia Loitc datcd 6 may 1099.

30 On 20 February 2002, thc I'ubic Prosecutor Iillcd an application for lcavc to f~~r thcr amcnd the indictntcnt against the accuscd persons, p~irsuat~t to Scctioii 32 of UNTAET regulation 2000130. Thc application was rcitcratcd driring the trial hearing on the 4"' March 2002, whcrc the prosecutor explained tho content of thc n~otion to f~lrthcr amend the indictme~~t. Thc Co~lrt clccidcd to grant leave to the Public Prosecutor to amend thc indictment on the 27"' March 2002 and decided that the proposed amcndmcnt bc part o f the indictmcnt.

31 The ordinary trial was scheduled on the 5"' March 2002. It was conducted over 12 Sessions (From 5 March 2002 until 29 October 2002).

32 0 1 1 the 5"' March 2002, the Public Prosecutor delivered his opening statclucnt and read out the indictment in an open hearing. The Defendant Jl1oni Franca as well as his co-accused did not want to make any statement collcerning thc charges against them. The defense Counsel for Jose Cardoso objected to the use of the terms "victinls" when referring to the three women allegcd victims of rape and proposed the Court that the term of "witnesses" be used instead. The Special Panel, after he;r;,lg '30th parties, ruled against thc objection rnadc by the defense Co~lnsel for Jose Cardoso. The latter being dissatisfied with the decision of the Special Panel filed an application to excuse the judges of the special Panel from their functions as Court of trial pursuant to Section 20.1 UNTAET Regulation 200011 1. At the request of the defense, the proceedings were suspended pending the decision of the Judge Administrator of Dili District Court on the defense application. Tlie prosecution reacted to the request from the Defense and prayed the judge administrator to dismiss the application by the defense Counsel and find that there is no basis for the application. The Judge Administrator dismissed thc application frorn the defense on 11 March 2002. Instead he ordered the same judgcs of the Special Panel to continue handling the trial of the case until its completion.

33 On 11 Marc11 2002, the Court decided to coiltinue the trial of the case 011 the 27 Marc11 2002, and thereafter the hearing was postponed to 8 April 2002.

34 From 8 to 12 April 2002, the Court heard the testinlony of tltc wit~lcss Bcndito Da Costa who was questioned by the Court, thc Public Psosccutor

and the dcfcnsc of thc 3 accilscd pcrsons. Thc hcaring was postpoi~cd to 24 April 2002 to hcar othcs prosecution witncsscs.

3 5 On thc 24"' April 2002, considering that onc orthc judgcs involvcd in tllc cnsc was sicli, docidcd to pos tpo~~c the hcaring of thc casc on t l~c 29 April 2002. 1-lowcvcr, on that last date, the hearing was postpo~~cd to 3 May 2002 111 ordcr to wait for the legal rcprcsentative of the accuscd Josc Cardoso who was not available.

36 On 3, 7, 8, 9, 14 and 15 May 2002, the Court heard the tcstii~ionics of the witnesses Josc Gouveia Lete and Mario Gonsalves who wcre qilestioncd by the Court, the Public Prosecutor and the defense. Thc hearing was postponed to 27 May 2002 in ordcr to give time to East Tilnorcsc pcoplc to prepare thc celebration of the Independence Day 011 20 May 2002.

37 On 27 May 2002, considering that one of the judges was not available; thc Court decided to postpone the trial of the case on the 8'" July 2002. The case was later postponed to 16 September 2002, 15 October 2002 and 2 1 October 2002 because some judges of tlie panel were not available.

38 On 21 October 2002, the accused Jhoni Franca made a confession of guilty. He made a statement and pleaded guilty to the 4 charges of linprisonrncnt or other severe deprivation of physical liberty in violation of fundamental rules of international law, of Bendito Da Costa and Amelia Belo, Adao Manuel, Mario Gonsalves, Jose Gouveia Lete, and Aurea Cardoso and her two children, Merminio da Graca, Mariana Da Cunha, Victim A, Victin~ B and Victim C, as crimes against hun~anity, contrary to S e c t i o ~ ~ 5.l(e) UNTAET Regulation 2000/15. The accused also pleaded guilty to the charge of torture of Bendito Da Costa, Adao Man~rel, Mario Gonsalves, and Josc Gouveia Lete, as crimes against humanity, contrary to Section 5.1 (0 UNTAET Reg~ilation 200011 5. The hearing was postponed on the 22""ctober 2002 for the Court to verify tlie validity of the guilty plea.

39 After verifying the validity of his guilty plea, particularly in light of Section 29A of UNTAET regulation 3012000, the Special Panel entered a plea of guilty against the acc~ised 011 22 October 2002, and convicted hi111 on 5 cl~arges of the indictment. The Public Prosecutor witl~drcw tlie remaining 2 charges of other inhumane acts of sil~lilar character intentionally causing great suffering or serious injury to body or ~ncntal or physical health, and one charge of persecution. The Court agreed with the withdrawal of tliosc

remaining tllrcc c o ~ ~ n t s and dcciclcd scvcsallce of the cusc of ' Jhoni 1;ranca from the case of his former co-acc~iscd pcrso~is Jose Carcloso ulict Sabino Gouveia Lctc. The licaring was postponoci to 24 Octobcr 2002 for the psc- sentencing hearing.

40 On 24 October 2002, the Court heard the testimonies of the witnesses Adclino Franca, Jacinto Maranda, Fatima and Fransisco Domina Martins, with respect to the personality of the accused person. Thc hearing was then postponccl to 29 Octobcr 2002 for the final written decision.

41 011 29 October 2002, the Court read out to the public the disposition of thc decision and decided to issue latcr the final written dccision, what is donc now wit11 the release of thc present judgment.

42 Interpreters into English, Bahasa Indonesian, Tetum and Bunak lang~lages assisted every act before the Court.

C. THE GUILTY PLEA

43 As stated earlier, the accused pleaded guilty to the charge set forth in thc indictment against him. In accordance wit11 section 29A.1, the Special Panel sought to verify the validity of guilty plea. To this end, the Panel aslted thc accused:

a) If he ~mderstood the nature and the consequences of the adlnission of guilt;

b) If his guilty plea was voluntarily made, if he did it freely and ltnowingly without pressure, or promises;

c) If his guilty plea was unequivocal, i.e. if he was aware that the said plea could not be r e f~~ ted by any line of defense;

d) If he had consulted with his legal representative regarding his guilty plea.

44 The accused replied in the affirmative to all these questions. He furthcr admitted in order to support his guilty plea all the facts of the case as contained in the indictmel~t and in the materials that were submitted to the Court. The Special panel accepted thc plea of guilty of tile ~ C C L I S C ~ .

Furthcrn~ore, it was found that all the essential fkcts rcquircd to prove thc crime to which the admission of g~lilty relates have been cstabiishecf as

rccl~~ired by Section 29A.2 ol'rcg~~lation 2000130. The accuscd Joao Francs c l : ~ Silva Alias .IIiolii Franca was convicted of' Impriso~imcnt or otlici- sc\el-c dcprivatio~l of physical liberty in violation ol' fundr~mcntal rules 01' international law, of Bcndito Da Costa and A~nclia Belo, Adao Mlanucl, Mario Gonsalvcs, Josc Gouveia Letc, and Aurca Cardoso and hcr two childrun, as crinlcs against humanity, contrary to Section 5.l(c) UNTAET Regulation 2000115; Imprisonment or other severe deprivation of physical libcrty i l l

violation of fi111da111~11tal rules of intcr~iational law, of I-Icrn~inio da Graca, as crimes against hu~nanity, contrary to Section 5.l(c) UNTAET Regulation 2000115; Imprisonment or other severc dcprivation of physical liberty i n violation of fundamental rules of ii~ternational law, of Mariana Da Cunha, as cri~nes against humanity, contrary to Scction 5.l(c) UNTAET Rcgulatio~~ 2000115; Impi-isonrnc~~t or other severe dcprivation of physical liberty in violation of f~lndamental rules of international law, of Victim A, Victim B and Victiin C, as criines against hul~~anity, contrary to Section 5.l(c) UNTAET Regulation 2000115; Torture of Bendito Da Costa, Adao Manuel, Mario Gonsalves, and Jose Gouveia Lete, as criines against liumanity, contrary to Section 5.1 (f) UNTAET Regulation 2000115.

D. APPLICABLE LAW

45 As specified in UNTAET Regulation No.111999, U.R.No.1112000 as arnended by U.R.200 1/25, and U.R.No. 1512000, the Special Panel for Serio~is Crimes shall apply:

UNTAET Regulations and directives; Applicable treaties and recognized principles and norms of international law, including the established principles of intcrnational law of armed conflict;

0 Pursuant to Sect. 3 UNTAET Regulation No.111999, the law applied in East Timor prior to 25.10.1999, until replaced by UNTAET Regulations or subsequent legislation, insofar as they do not conflict with the internationally recognized human rights standards, the fulfillment of the inandate given to UNTAET under the United Nations Security Council Resolution 1272 (1 999), or UNTAET regulations or directives.

17. FAC'I'S 0 1 7 '9'!tPE CASE

46 The prosecutor clcscribccl how tile accuscct Joao Franca Da Silvr~ alias Jhoni Franca, as Commander of the Kacr Mctin Mcrah Putill militia in Lolotoc, \\lit11 authority and contl-01 ovcr mcn~bers of tllc ICMP militia, hc anlong otllol-s, \ \as rcsponsiblc for:

47 The iinprisonlnent or othcr severe deprivation of Physical Liberty in violatio~~ of fi~ndaniental rulcs of international law, of Bc~idito Da Costa and Amclia Belo, Adao Manuel, Mario Gonsalves, Jose Gouveia Lcte, and Ailrca Cardoso and her two childrcn in Lolotoe Sub-district Bobonaro District, betwccn May and July 1999'.

48 The imprisonment or other severe deprivation of Physical Liberty i l l violation of fiindamelital rules of international law, of Herlninio Da Graca, in Lolotoc Sub-district Bobonaro District, between May and July 1999'.

49 The imprisoninent or other severe deprivation of Physical Liberty in violation of fundaniental rules of international law, of Mariana Da Cunha, in Lolotoe St~b-district Bobonaro District, between May 1 9993.

50 The Imprisonment or other severe deprivation of Physical Liberty in violation of fi~ndarnental rules of international law, of Herminio da Graca, Maria Da Cuiiha, Victin~ A, Victim B and Victim C in Lolotoe Sub-district, Bobonaro District, between May and July 1999~.

51 The torture of Bendito Da Costa, Adao Manuel, Mario Gonsalves and Jose Goilveia Lete, between May and July 1999, in Lolotoe Sub-district, Bobonaro ~ i s t r i c t ~ .

52 The Prosecutor underlined that tliose acts or oinissions by the accused were ~lndertalten as part of a widespread or systematic attack directed against thc civilian population, and especially targeting those who were considered to be pro-independence, linked to or syinpathetic to the independence cause for East Tiinor, with ltnowledge of the attack.

I Amcnclcd inciictlncnt, pal-agrapl~s 28 to 48. 2 A~ncnciccl inclictmcnt, paragraplis 50 to 52. ' Amcnclcd inciiclmcnt, paragraphs 53 to 59. ' Amcndcd indict~ncnt, paragraphs 60 to 68 5 Arncnclctl inclictnient, paragraphs 28 to 48

I

53 Tlic accused is indiviilually criminally responsible ihr the urlmcs allcgcci against tllcm in this indictment in \?iolation of' Section 14 of UNTAET Regulation 2000115. Under scction 14.2 and 14.3(a) to (c) individunl csiniinal rcsponsibility results if the intiivid~lal committed, planned, instigated, orclcrccl, solicited, ~cduccd, aidctf, abcttcd or otlicrwisc assisted in tlic commission of' tlic crimcs, or attcmptcd commission. Individi~al cri~uinal scsponsibility also results if an individual in any other way contributcs to tlic commission or atte~uptcd comnlission of the crime, if such contribution is intcntional ancl is cithcr (i) made with the aim of C~~rthcring tlic criminal activity or P L L ~ P O S C of a gro~lp; or (ii) is made with tlic I~nowI~dge of thc intention of the gro~ip to commit the crimc.

54 Joao Franca Da Silva alias J11011i Franca is crilninally responsiblc as silperior for the acts of his subordinates in violation of Section 16 of UNTAET Regulation 200011 5 . Superior crilninal responsibility is the responsibility of a superior for the acts of his subordinates if the superior lcliew or had reason to l a o w that the subordinate was about to cominit s~lch acts or had done so and the superior failed to t a le necessary steps or reasonable ineasurcs to prevent such acts or to punish the perpetrators thereof.

55 In his final statement, the Public Prosecutor requested the Court to sentence Toao Franca Da Silva Alias Jl~oni Franca 6 years of imprisonment to Count 14, 1 ymr i~nprisonment to count 15, 1 year of imprisonment to count 16, 6 years imprisonment to count 17and, 7 years imprisonment to count 18.

56 T l ~ e dcfence admitted to all the allegations contained in the indictment with respect to each of the charges to wliicl~ he is pleading guilty. He admitted all the allegations contained in the paragraphs 28 to 48, 50 to 52, 53 to 59, and 60 to 68 of the indictment. FIe fi~rther admits that as Coininander of ICaer Metin Merah putih militia in Lolotooe, he, among others, was responsible: ( 1 ) for the imprisonment or severe deprivation of physical liberty of Bendedito Da Costa, Amelia Belo, adao Manilel, Mario Gonsalves, Jose Gouveia Lcite, Ailrea Cardoso and her two children ill Lolotoe Sub-District, betwcen May and July 1999, in violation of fundan~ental rules of international law, (2) for the imprisonment or severe deprivation of physical liberty of Hern~inio Da Graca, in Lolotoe Sub-District, between May and July 1999, in violati011 of fundamental rules of international law, (3) for the imprisonment or severe deprivation of physical libcrty of Mariana Da Cunlia in Lolotoe Sub-District, someti~nes in May 1999, in violation of fundamental rules of international law, (4) for the imp-isonlncnt or severe deprivation of physical libcrty of Victim A, Victinl R and Victim C in Lolotoe Sub-District, between hIay all(!

July 1999, in violation of lilndamcntal r~ilos of intcl*i~;~tion~ll In\\,, ( 5 ) Ibl. t l ~ c t o r t~~rc of Bcndicto da Costa, Adao Manuel, Mario Gonsal\rcs, ancl .loso Go~ivcia Lcitc, in Lolotoc Sub-District. i n May 1999, i n violation ol' Iilndamcntal rulcs of international law.

57 Tlle nccuscd admits also that thc crimcs listed abovc to ~v l~ ich Ilc is ~lncquivocal and unconditionally adruitting wcrc committed as part 01' widcsprcatl and systematic attack against a civilian population witli knowledge of the attack.

5 8 Frorx the submissions of the Public Prosecutor and the admissions mrtdc by the accused pcrsons, it is clear that the offenccs allcgcd have been com~nittccl in 1999 bcfore the promulgation of U.R.2000115, U.R.2000/11 and U.R.2000130 011 Transitional Rules of Criminal Proccdurc as amended by U.R.2001125, which apply in the matter as underlined abovc". According to the principle nullun~ crinlen sine lege, the law applicable has to be thc law which was in force when the offences were committed. Tliercfore, the first issue to be analyzed by this Court will be the applicability of UNTAET regulations with respect to the crimes the accused is charged.

E. APPLICABILITY OF UNTAET REGULATIONS WBTB-8 RESPECT TO THE CRIMES THE ACCUSEn - . JHONI FWANCA IS CHARGED.

59 The principle nzlllurn crimen sine lege, no crime without law, has developed as a general principle of criminal law and as a rule prohibiting rctroactive application of criminal laws. It is counted among the so-called "principles of legality,"7 and it may be found in various international legal inslrume~~ts including international human rights and humanitarian law t r e a t i ~ s . ~

Op.cit. Page 12 M. Cherif Bassiouni, The Sources and Content of International Criminal Law: A Theoretical

Fran~ework, in International Cri~ninal Law, Second Edition, Volume I, Crimes, (M. Cherif Bassiouni ed. 1999) at 32.

8 See, for example, Article 1 l(2) of the Universal Declaration of I-1uma11 Rights; Article 15(1) of the ICCI'R; Article 7(1) of the European Conventioll on Human Rights; Article 9 of the Alnerica Convention on I-luman Rights; Article 7(2) of the African Cha1-tes on I-Iuman and Peoples' Rights; Article 67 of the Fourth Geneva Convention; and Article 13 of the lntcrnational L,a\v Comlnission's Draft Code of Crin~es Against the Peace and Secul-ity of kIanl<incI.

1

GO Thc pl-inciplc ~ I L I ~ ~ I I I I I ct.il~leil s i t l ~ 1c.g~ is fuuncl i l l Scction 12 o t' UNTAIi-i Iicgulatio~i No. 20001 15, which rc:lds as follows:

I . I A ~ C I : S O I I sllclll i ~ o t be c~.i~uii~(ll!\~ t.c.spo~~.sible ~itldet. tile prcseilt I . ~ ~ I L / L I I I ' O I ! ~lil1c.s~ the C O ~ I C ~ L ~ C ~ ill q~lesfioil C ~ I I S ~ ~ ~ ~ I I C S , L I ~ file titllc-' ii tnkcs place, cl crit~re ~inclet. i~ltet-ilatiorzrrl lcrltj or the l(ll\l.s of' Ecrsf Titnor.

12.2 The definition of'n C T ~ M I C sllnll be strictly co;~stnlen' ntlci sllcrll /lot be exteniced by cnmlogy. It1 case of milbiguity, the i!c?jit,itio/, sircr N he interpreted in jbvor of' t h ~ person being itzvestigated, proscczltecl or convicted.

12.3 The present Section shall not aJt'ect the characterization of'f'nny conduct as criminal z~nder principles and rules qf international law independently oftlze present regulation.

6 1 The text of UNTAET Regulation No. 2000/ 15, Section 12.1 provides that "[a]

person shall not be criminally responsible under the present regzllation zinless

the conduct in question constitutes, at the time it talces place, n crime under

international law or the laws of East Timor. " According to the ordinary

meaning of this the act must 11ave been criminalized undcr

international law or the domestic law applicable in East Tiinor. It would not

be s~lfficient for the act to be merely prohibited by international law.

International law must recognize that the act gives rise to individual criminal

responsibility. While this appears to be a stricter articulation of the principle

than that found in the jurisprudence of the International Military Tribunal

(IMT), it is in accord with inore conteinporary understandings of the

principle.

9 The periodic reports of tlie UN Secretary-General to the Security Council on UNTAET's activities and developments in East Tilllor that precede the promulgation of UI\ITAET Regulation 2000115 do not elaborate on the content of UNTAET Regillations and clo not contain any "clrafting history" of Section 12 of' UNTAET Regulation KO. 200011 5 .

i

0 2 Tlic p r i ~ ~ c i p l e tllriirr~~r c81.itllctr sitre I L ] ~ L > \vas addressed in t h c .Judylic~it of' tlic

IMT, which obscrvccl tliat t l ic principle was a pri~iciplc o f j ~ ~ s t i c c :

/ t i t/leJii:\'r ~ I ~ L c c , it is lo /!e obse l~~mi tlrllt lllc tria.\-iirl /r~ll/i(iil c'i.iiiieil sii~e /i.gcj is 1ior n litizitiltio~l of'sove~.eigtltj~, hut is ill getlei-a1 ct yi+itlciple of'j~lstice. . . 7h asset-t tllclt it is ~rtlj~rst to p~111isIz tilose ~vllo in defiatice of'tt.ca/ic.s 1rt1c1

ussurances llnve attnclced ~zeigl~601-itzg states witl~o~lt ~.v~li.tlitlg is oOvio~l.si~i ~~tztt.ue, jot- in sucll circz~t~zstnnces the attacker 11zllst ICMOIV tllnt 1ze i.s doitly wrong, nfzd soJi-lrJi-o\v. it being z~ t l j~~s t to yutqisl~ /~it71, it ~ v o ~ r l ~ t he u~.ljust if'11i.s wrong livere allowed to go zlnpunislzed.

In this passage, the IMT seemed to imply that it wo~ild be sufficient fo r thc

perpetrator to know at the time the act occ~irred that his or her conduct was

63 However, more recent artic~llations of the principle seem to r eq~~ i r e that the

act have been a crime under international law at the time it occurred." For

10 The IMT reasoning is son~e t i~ l l e s still applied today. For example, international criminal law scl~olar Scharf has pu: fo17~ard an argument that tlie exercise of treaty-based universal jurisdiction over ~ ~ a t i o n a l s of 11. n-State Parties does not violate the principle of n~illum cuinze~z sine lege. Drawing from tlie IMT pronouncement tliat the principle is "in general a pril~ciple of justice" and Control Council Law No. 10 jurisprudence, he concludes:

Similarly, whcthcr or not a defendant's state of nationality is a party to thc Hostagc Taking Convcntion, the Airport Sccurity Protocol, thc Maritime Terrorism Convcntion, or thc Sarcty 0fU.N. Pcacelcccpcrs Convcntion, the perpetrator cannot seriously arguc that hc did not know that taking hostages or attaclcing civilian airports, ships, or U.N. peaccltccpcrs was a crime. Moreovcr, the cxistcncc of these multilateral conventions (negotiated undcr the auspices of major international organizations) constitutes noticc that the pcrpctrator can bc callcd to answcr for such crinics in thc courts of the Statc Partics to thcsc trcatics. Thus, thc nullurn crimcn principle is not violatcd by tllc cxcrcisc of treaty-bascd jurisdiction ovcr the nationals of Non-Party Statcs.

Michacl P. Schar f, Applicntiorz qf TI-eclty-Bcl.re~1 U~zivel-snl JLLI-i.scliction to Ncltioi1n1.s u f ' N o ~ ~ - P ~ ~ i . t j ~ States, New Eng. L. Rev., Winter 200 1 at 375.

I I Related to the query under disc~ission is Principle 1 of tlie Nureniberg Principles which states that "Any person who con~ni i t s an act whicli constitutes a crime under international law is responsible therefore and liable to putiishment." /izlertlntional Lmv Co11~17zi.s~ioi1, P1.ii1cij11e.s qf' li7tel,ncrtion(ll L(11.v Xccogllizecl in tlze Chc~l-tel. 4' tile Niiei-nhc.i.g 7i.ihilncll ( [ / 7 ( / in tile Jr~clgil/enl (4 tlze T~. ih l l /?~~l , available at i i t t , ~ : l l ~ ' ~ \ . ~ ~ . ~ i ~ i . ~ ~ ~ ' ~ ~ I t i i i \ / i l ~ / t ~ : ~ & .

csaniplc, rlrticlc 15(1) of the ICCI'R pro\~idcs that "No olrc .sIr~r/l 1 ) ~ I I L ) / L /

guilt\- o f ' ~ r / l ) - c.~.il~lillcrl offilllccz 011 c~ccor!~lt of L I I I J ' clct 0 1 ' o~~/i.s.sio/~ I I ~ / I ~ C ' / I (lid 1 1 0 1

co~~.sfitlr/e n C I ~ ~ I I ~ ~ / I L I / off211ce, . . rrflcfcl. / l~l t io/~(l l 01- i ~ l t e / * / ~ ~ l t i o / ~ ( ~ l I c I ~ ~ J , (11 / / I c ' fiillcl

\1)1re[1 it ~I ,NS co~~l~~l i t t e i l . " T~ILIS, the principle izullu~~z CI . I ' I I I~ I I S1'1re legc applics 12 to acts ancl onlissions that constitute a criminal off-encc; thc basis of' tlic

crime must bc found in citlicr doil~cstic law or internr~tional law, i.c., treaty 17 law or international c~lstomary law.

64 A recent articulation of the pril~ciple of nz~llz~nz cri17zel? sine lege is found i n

Article 22.1 of thc ICC statute14 which, in language al~nost identical to that

set fort11 in Section 12.1 of UNTAET Regulation 2000115, reads: "[a] person

shall not be criminally responsible under this Statute unless the conduct in

question constitutes, at the time it takes place, a crime within the jurisdictiorr

of the Court." Per Saland, chair of the working group dealing with Article 22

of the ICC Statute, explains "[t] he material content of the principle of legality

(that a person is not criminally responsible unless the act constitutes a crilllc

under the Statute) was never a contentious issue."I5 He f~lrther notes in this

respect "[t] he term 'conduct' was generally accepted to denote a critninal act

12 MANFRED NOWAIC, U.N. COVENANT ON CIVIL A N D POLITICAL RIGHTS: CCPR COMMENTARY at 276 para. 7 (1993) [hereinafter CCPR COMMENTARY]. Intertlational humanitarian law also contains tzzlllum crinzen sine lege provisions, for example, Article 6(2)(2) of Protocol 11, which follows closely the wording of Article 15(1) of the ICCPR and Article 75(4)(c) of Protocol I , which reads in relevant part "No one shall be accused or convicted of a criminal offence on

ccount of any act or olnissioll which did not constitute a cri~ninal offence under the national or international law to which he was subject at the time when it was committed."

13 See CCPR COMMENTARY, szprcz note , at 276, para. 6.

14 This article is found in the section of the Statute entitled "General prillciples of criminal law."

15 Per Saland, Ii?tei.t~cltional Ci-iirliilal Lclrv Pi"irzcip/es 189 at 194-95, in TI-IE INI'ERNATIONAL.

CRIMINAL COURT: TI-11: MAKIN(; oi' TIII: ROME ST'ATU-I,E, ISSUES, N~c;o~rr .~-r~o~s, rC~sur:i's (Roy S. Lec, cd. 1999).

or o~l i iss~o~i ." I(' I t must be noted, however, that golc.~.~/ll\' thc pt'inc1l3lc

ir~{llrcjir c'ri1/1~'1~ .sjlle ICSL' will not be an issue bcfol.c tlic ICC, sincc tlic

couli has only p~.ospcctivc jurisdiction, i.c., jurisdiction over crimcs

committed after the entry into force of thc ICC Statute (Article 1 1 . I of'thc

ICC Stat~ite)."

65 Speaking about the principles of 1'1211121111 c1'itlleil sine legc, n~illn poenn sillc

lege, and 110 ex post jkcto application of laws, intcrnational crimitial law

expert Bassiouni describes the different ful~ctions of the priiiciplc at issuc

and states:

To satisSy the principles of legality, a crilne lnzlst be clejined szfliciently to put people on notice that a particzilar conclzlct has been characterized as criminal. The principles of legality th~ls require a clear and unambigzio~~s identiJication oj'the prohibitect conduct. These principles are deerned part offi~ndamental justice becat~se they protect against potential judicial abuse anci arbitrary application ofthe law."

16 Id., at 195.

A nz~lltl~n crirnen sine lege problein inight arise, however, in the case that a particular statc ~naltes an acl hoc declaration in accordance with Article 12(3) of the ICC Statutc, thus recognizing the ICC's jurisdiction for a particular crimes, or when the UN Security Council, acting under Chapter VII of the UN Cllarter, refers a case to the ICC. Williaill A. Schabas, AN INTRODUCTION TO THE INTERNATIONAL CRIMMAL COURT at 57 and accoinpaiiying notes (2001).

l 8 M. C h e r - ~ B C I S S ~ O L I I Z ~ , The Sotrrces and Content of lnterrlcttiorzal Cr-intinu1 Law: A Tlzeor-eticcrl Framevvo/-lc 33, in INTERNATIONAL CRIMINAL LAW, 2D ED. Volume 1 (M. Cherif Bassioulli cd., 1999). Bcrt see crlso Bassiouni who states earlier:

The criminal aspects of international law consists of a body of international proscriptions containing penal characteristics evidencing the crirninalization of certain types of conduct, irrespective of particular enforcement modalities and mechanisms. But conventional ICL seldom explicitly declares a given proscribed contluct as a ct-ime under international law or as an international crime. In fact, tlicrc is much conf~~sion about the labeling of international crinlcs.

6 Thus, it sccnis that, in ordcr to satisfy tlic PI-inciplc of 111/1111111

c>ri~llc~r ,siirc l q c , tllc act milst have bccn a crimc i~ndcr ~ntc~-n;~tional law ziving rise to individiial criminal responsibility at the time t l~c

I 0 collci~~ct occiir-red. Next, thc qucstion arises as to how strict tlic principle is: is it suft'icicnt for tlic act to bc criminal or must thc conduct bc proscribed as a crimc in thc spccific terms in which it IS

being prosecutcd'?

67 Scction 12.2 of UNTAET Rcgulatioll No. 2000115 addresses the issue of construction and the possibility of analogy by providi~ig: "The clefinition oj'a cri~lle shall be strictly construed and shcrll not be extended by analogy. 1tt case oJ'a17lbiguity, the de/i/litioi2 shcrll be interpreted in jilvor of'thc person being investigated, pro,vcczitcd or cotzvicted. " This provision is verbatim thc text of Article 22.2 of the ICC Statute.

68 However, it may be that under Sections 12.1 and 12.3 ofRegu1atio11 20001 15, tlie rule against analogy applies only to interpreting Ille text of the Regulation alone:

A person shall not b~ jriwinally responsible . . . unless the concl~ict in question constitutes . . . a ci 'me under international l u ~ v or the laws ofEast Timor . . . The present Section shall not aflect the characterizntion of'uny conduct a s criminal under principles and rules oj' international law independently cf the present regulation.

69 These two provisions leave open the possibility that analogy inay be used with respect to applying definitions of crimes at international law. In this regard, it should be remembered that Article 22 of the ICC Statute, from which drafters of UNTAET Regulation 2000115 drew Section 12, was concl~lded during a Diplomatic Conference that negotiated the text of a treaty. Prohibiting analogy has a different meaning in the context of a treaty than it 111iglit have otherwise. Specifically, ICC Statute definitions will only apply for f~lture acts, given the court's prospective jurisdiction. Thus, the rulc

his rccluil-ement, of course, is l im~ted to acts occurring bel'ore tlie Regulation 200011 5 entcl-cd into force.

may be limited to just tlic Ron~c Statute tcst. I11 othcl- 1.01- a 11csi~Ics tlic Coir~.t, such as thc East Timor Spccial Pnncls, tllc I - L I ~ C nligl~t not 11l~ply i l l evcsy PI-ob~em of illtcl-pl.ctatiol1.

70 A problcm may arise i f ' the process ofjudicial interpretation scachcs bcliind the tcxt of Regulation 2000115 to find definitions of crimcs i n international law."' Tlic potential PI-oblem ccntci-s around the possibility that dcfinitions n ~ a y be morc limited in customary law than they are in thc Regulation. Thus, tlie rule against analogy niay prcvcnt applying the Regulation's definition where a) an act is prosecuted ~ulidcr a definition in tlie Regulation, b) intcrn:~tional law is loolted to in support of that deflnitio~i, and c) the definition in custonlary law is more limitcd than the Regulation's detinition. As stated before, the Reg~llation's definitions derive nearly word for word from the Ron~e Statute of the International Crinlinal Court. But unless that Statute is declaratory of custon~ary law, the r~rlc against analogies may limit applicability of parts of tlie Regulations's definitions wit11 respect to coliduct occurring before the Regulation's entry into force.

71 For example, none of the pre-1998 statutory definitions of crimes against hunianity includes "enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence." However, the rules prohibiting rape, enslavement, and inhumanc acts apply by analogy to other severe sexual acts. Siniilarly, iinpermissible grounds for persecutioii did not previously include ethnicity, culture, or gender, but tliose bases may be covered by analogy to certain war crimes, specifically, discrimination prohibited by Coinnlon Article 3 of the Geneva Conventions of 1949.~ ' In either case, elaborations on the definition of crimes against hunzanity cannot Iiappen if recourse may not bc had to analogy. On the other hand, if it is understood that the Rornc Statute's definition of crimes against humanity is tlie same as that found in c~lstomary international law, tlien analogy need not bc

20 Recall that Section 12.1 provides that "[a] person shall not be csiminally responsible ~lnless the conduct in questioll constilutes, and the time i t taltes place, a crime untler intc~national

>, l aw. . . .

2 1 Common Article 3 PI-ovides "persons taking 110 part in hostilities . . . shall in all cil-cumstanccs be treated humanely, \sritIiout any aclverse distinction fo~~nclctl on ]-ace, colot~l- , I-cligion 01. faith, sex, bil-th or wealth, or any similar critel-ia."

cniploycd. Also, since UNTAET Regulation 200011 5 contains clcul- dcljnitions of most crimes t l i r ~ t Ell1 \ \ i i t l ~ i ~ i the j~~riscficlion of tllc Special Panels, the issue of analogy docs not sccm to bc n pr-ob1c.111 with rcsl~cct to spcciticity of'cl-imcs.

72 I-Io~vevcr, bccausc drafters of UNTAET Regulation 200011 5 may havc relied on tlic rationale of drafters of the ICC Statute, thcre niay be a need for morc in-depth rcsearcll into the drafting history of that Statute. Specifically, it may be necessary to clarity whether thc Ronle Statute drafters meant to inc l~~dc c~~stomary international law with respect to definitions of crimes or- whether they meant that tlic rule against analogy woi~ld precludc using customary definitiolis.'" Accordingly, it is also ~111clcar whcther tlie drafters of Section 12.2 of tlie UNTAET Regulation had in nlind the samc limits on applying analogy.

73 Given this uncertainty, it would be wortl~whilc to explore whether use of analogy is pern~issible in otl~cr co~itcxts. In his comprehensive book on crin~es against humanity, international crin~i~lal law expert Bassiouni explains how analogy serves different pur-poses:

Though the principles of legality' are essentially legislative constraints, they also serve as rules ofjudicial interpretation. In that context, the basic rule of interpretation embodying the principles of'legnlity ' I s the prohibition or limitation on the use nfnnalogy in judicial interpretation.

The pzlrposes of the 'principles of legality' are to enhance the certainty o f the law, provide jtlstice and juirness for the acc~lsed, achieve the efjective jillJillment of the deterrent filnction oj' the

22 This is uncertainty is Iieightened in light of the Per Saland's observation above: ?]he material content o f the principle of legality (that a person is not criminally responsible unless the act constitutes a crime unrler the Statute) was never a contentious issue." (Saland, . s ~ i p / n note 15,at 195.) (Emphasis added.) Lack of contention may have arisen from thc pl-esuniption that the nullirnl C ~ . ~ / ? Z C I Z problcni wo~rld be colnpletely avoided because the Statute woulcl be applied only While this may suggcsi that tliei-c \\.as no intent whatever to rely on customary definitions, such a conclusion is not nccess:u-ily cot-sect.

74 Yct aftcr a bsicf historical ovcrvicw of thc pcrnlissibility of ;ui:llogy in such criminal law systcms as in Gcrmany, Engl~lnd, U.S., Islamic crimin:il justice systems and Marxist-Socialist systcnls, Bassiouni concludes with rcspcct to analogy thc Ibllowing:

It~te~-izntior~clf ct-iillirznl law C I S it is now, ~ i ~ d cei-taiillj~ CIS il \VCI.S ill 1945, reqziires the existeilce of 'a lcyal prol~ihition arising ~ l n ~ l o . converztional or czrstot1ini.y intcrnatiorznl law, vv/lic/l is ~teei~led to have priitzacy over lzationnl law, arzli wlziclz dejiilcs I r ccr.tllirz corzdzict as criil~inal, puni.slzahle or proseczltahle, or violative oj' intert~ntional luvv. This trzinimzrnz standard oj'legnlity perillits tlze resort to the rztle t f u s d c t ~ generis with respect to nncllogou.~

24 condzict . . . .

75 Use of analogy in applying custoinary definitions is necessary because traditionally, international criminal law has laclted the specificity of

+ national criininal law in defining crimes. This is d ~ l e to thc fdct that international convei~tiolls are usually drafted in a context whcrc a balance must be struck between what is legally and diplon~atically feasiblc in thc treaty malting process. Additionally, d i p l o ~ n ~ i who seldom have expertise in international criminal law usually draft convent io i~s .~~

76 This lack of specificity is less problematic when international law is being promulgated wit11 the purpose of importing it into national law because it is assumed that the national systei~ls will add the specificity necessary to meet the principles of legality. In contrast, the Special Panels in East Tirnor will apply law that is clirectly enforceable.

77 In cases where a direct enforcement system applies (such as in contemporary international criminal courts and tribunals like the

23 M. Cherif Bassiouni, Crimes Against I-Iumanity in International Cri~ninal Law, Second revised edition (1999) at 123- 124.

ICTJ', ICTR, 2nd ICC'), Bassiouni a{-guts Sol- u higlicr stllndnl-ci 01' spc" fioity and states:

1 1 1 1 1 , ii ~11011111 OC I ~ C I I I C ~ I I I I I C ~ . ~ I I tllcri if' ICL'S ~lot,~i~llfil~c> ~ ~ i . o . s c ~ * i ~ f i o ~ ~ ~ crt-e to 11e c117plic~I c~i~~ccl l !~ 10 i 1 ~ c 1 i ~ i ~ l ~ ~ ~ ~ l . s P I ~ C I I ~ l ' i f l ~ o ~ l t the tllecl'icrtioir of' tlntioncri crifiri~ral jllstice .sj~.stciir.s flreir f l ~ c ~ .sini~ll~rt.~is of' sl~eciJicitj~ of' ICL tlor.t~ls tllllst t'isc io t l l ~ I~iglie~. .stcl1r1lal-tl.s i-cy~ril+ed l'y 111li1ly e,risting lcgnl S ~ S ~ C I H S . C ~ I I C C I ~ I I 1llif11 the spccijicity r.c~qr~irct?zcnt o/'tllc p ~ ~ i ~ ~ c i p l c s c?/'legalii,v 11lci.s 1.ece11t1y e~l~erged, as evicie~zced in the stlrtutcs of'tlle ICTY, ICTR cl~zcl tllc ICC. TIILLS, particulclrly hecnuse ICL call he e1fircc.d tht.orlgl~ n "direct cnji~rcenzetzt system, " it has to lrzeet tlle sa~lle staildn~vi.~ (4' speciJicity, which apply in tlze general priizciples of'crinrinctl law recogvlizecz' in the world's major legal syste~~zs. "Direct enjijrcement syster7ls" of ICL are, .fbr the pLLrposcs q f ' this di.scu,ssion, inclistinguishahle from ncltionul crinrinnl justice systems and there is no jz~stiJicntion Jor applying n lesser stctnclarcl of' legality to this ICL enjbrcenrent nrethod 2"

78 This seems to imply that a high level of specificity of crimes is required to satisfy the priilciple of nzlllum crimen sine lege, but it does not seem to require that the conduct, although designatcd as criminal, must be proscribed as a crime in the specific or exact terms in which it is also being prosecuted. This provides some roo111 for applying analogies.

79 The European Court of Human Rights has addressed the issue of analogy. Article 7 of the E~iropean Co~lvention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) uses language that is almost identical to that of Article 15 of the ICCPR in prohibiting ex post Jacto laws. The European Court of Iluman Rights has heard several cases alleging violations of Ai-ticlc 7, and in each of these cases, the Co~lrt responded with the same language regarding nz~llz~rn cri~nen sine 1 ege :

26 M . Cherif' Bassiouni, Trre SOURCES A N D CONTENT 01: INTERNATIONAI, C I { I ~ ~ I I N A L LnlV: i'l TI II:OREIICAL l:~<~brr;.worci;, IN INTEI<NATIONAL CI<IMINI\L LA\v, Seconcl I<cliiion, Volumc 1. Crimes, (M. Cherif Bassiouni ed. 1999) at 34.

[l-l].s 111c. C'orlr~ I~c,lc/ ill i f s l\'olilii/llilii.~ I!. G~.c.c)cec ~ ~ ~ L I ~ I I I C I I I .?i i\llrl? 1993 (S~)i.ic).s if 1 1 0 . 260-rl, 1). 22, ~ I I I I .CI . 2 ) , ,-l~.licle 7 (~rrt . 7) i.s lot c.on/i~rc.ll to y ~ * o / ~ i h i f i ~ ~ g I / I C I * c ~ I * ~ . s I I c c ' ~ ~ I ~ c - ' 11,11pli('llfi011 o/' 111cj c~i.il~ri~lcrl l t r l ! ~ to 1111 rrccrl.sccl'.s cli.slr~/vcr~r flrgc~ if trlso o l~ l~ol l ic .~ , 11101.c ( ~ c ~ l c ~ - c r l l ~ ~ , tllc princij~le tlrcrl o11l)l the llrl~ crril rlclitrc 11 ci-i~lrc. c r 1 1 ~ 1 3

p~-esc/-iDc ~r po~crlty (11111111111 C I . ~ I I ~ I I , tlrlll~i poe111i si~le lcgc)) crlrtl tile yri~zciple thcrt the ct.iillit~lrl lalv ~ t l ~ l s t /lot De e .~ fe i~s i l~e l~ i coil.sf~.rtcci to ail accrrseti's detr*it~lent, ji,r instance 0)) atlalog). F I . ~ I I ~ these pri12ciple.s it ji7110~vs that utz ojjL.12~~ tllrlst be clea1.1)~ ~fefineci it1 tile law. 117 its clfi,rcttietltiotzed jrldgtnetzt the Colrt"t ndlle~i tlllrt this requit.e/l~eizt is satisjkd vvhere the i~zdividunl cull ~ I ~ O L V jko/li the worditzg of the relevatzt provisiotz and, if' need be, with the assistatzce of the courts' interpretation of' it, what acts clnli otrlission.~ will tnake him1 o-Oninally lialle. The Cor1t.t t11~1.s indicated th~zt +vhen spealiing oJ' "1avvJ' Article 7 (art. 7) alludes to the very same concept as that to which the Convention rejers elsewhere when using that term, a concept which comprises written as well as ztnvvritten law and implies qualitative requirements, notably those of nccessibility and joresee ability (see ... the Tolstoy Miloslavskcy v. the United Kingdom j~tdgnzent oj' 13 Jztly 1995, Series A no. 31 6-B, pp. 71- 72, pam. 37).

Ez-7wever clearly drafted a legal provision may be, in any system q/' law, including criminal law, there is an inevitable elemenl of jztdicial interpretation. There will always be a need for el~~cidation of doubtjill points and for aduptation to changing circztmstances. Indeed, in the Conv~ntion States, the progressive developtnent of' the criminal law through judicial law rnalcing is a well-entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarijication of the rzlles of criminal liability through jztdicial interpretation jrom case to case, provided that the reszlltant development is consistent with the essence ofthe offence and coulcl reusonubly he foreseen. 2 7

27 See S.W. v. the United Ki~~gdorn and C.R. v. the United Kingdom, judglncnts of 22 November 1995 (Series A nos. 335-B and 335-C, pp. 41-42, paras. 34-36, and pp. 68 ancl 69, paras. 32-34, respectively; also quotecl ill Case of I<.-I-I.W. v. Germany, Judgment of 22 March 2001 (Application no. 37201/97), alitl Case of Stl-eletz, I<essler and I<scnlz t.. Ciermany, Judgment of22 blarcli 2001 (Applications nos. 34044196, 35532/97 ancl 4480 1/98).

SO In conclusion, it is probably not ncccssury that the crimc bc proscl.ibcd in exact and precise ternis, as long as the conduct is a crinio untlcr international law giving rise to individur~l criminal rcsponsibility.

81 I t i t is also ncccssary to address the issue of whctl~cl- thc principlc 01' t l~11111t11 C I - ~ ~ I I C ~ I sine lcgc requires tliat the penalty be prcscribccl. I<nown as the principle of i~~ill l l poet1~1 sine legc, this principle is dealt with in Section 13 of UNTAET Regulation No. 2000115, .cvliich rcacls: " A pel..so~l convicted by a panel tilay be putlishcci only it7 accot.drrt7c.e wit11 tllc p~-c.se~~l t-egzrlation. "

82 Here, the issue of analogy is not as diffic~~lt as it is with respect to thc defi~litions of crimes. There is much support for the proposition tliat wl~cre a) a country's laws prescribe particular penalty for a particular crime, b) an international or internatiolialized court is established for tliat country, and c) the new court must decide how to punis11 a similar crinic, the new court may look to country's penalty provisions for guidance. Article 24 of'the Statute of the International Criminal Court for the former Yugoslavia provides that "[iln determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of thc former Yugoslavi-." Article 23 of the Statute of the International Criminal Tribunal for Rwanua hzlc tlie salxe provision, mutatis rnt~tandis. However, there is no similar provision in tlie ICC

83 On the issue of applying penalties by analogy, Bassiouni concludes:

International criminal law as it is now, and certainly as it vvns in 1945, requires the existence of a legal prohibition arising zuder conventional or custovnary international law, which is deemed to have primacy over national law, and which clejincs a certain condz~ct as crirnivzal, punishable or prosecz~table, or violative of international law. This ~niniinzi~n standard of legality . . . pertnit3 the applicutiotz of penalties by analogy to similar critnes and penalties in the national crit~zinul laws of the prosecz~ting state having p~~operjuri.sdiction2"

" ~ e e Articles 77 and 78 .

2 Y M. Chesif Bassiouni, Crimes Against I-lumanity in International Cr~miiial l , a ~ v , Sccclt~cl revised cdition (1999) at 144.

84 Witll rcs17cct to tlic ;~pl~lication o f r l ~ ~ l l ~ l i r ~ c/.ii/lc>/r sitlc lcgc to CI-inics within tlic subjcct niL1ttcr jurisd~ction of the Special l'ancls, the Court has to csaniinc the application of thc principle o f i~lrllllir~ C * I . ~ / I ~ C > I I sitlc I C ~ C to tlie subject niattcr jurisdiction of tlic Spccial Panels under UNTAET Regulation No. 200011 5 . 111 particula~., this part investigates wl~etlicr the "serious criminal ofl'cnccs" enumerated in Section 1.3 of UNTAET Regulation 2000115 were already crimes under international law either as c~~stomary international law binding on all states;30 or, in the abscncc of customary law and at least to thc extcnt defendants wcre Indoncsian

3 1 citizens, as treaty law binding on Indonesia.

85 Section 1.3 of UNTAET Regulation No. 2000115 states that tlic Spccial Panels have ji~risdiction over the following serious criminal offences: genocide, crimes against humanity, war crinies, torture, murder and sexual offenses. If it is clear that some acts like murder and sexual offences were presumably criininalized under domcstic law during the relevant period (Sections 8 and 9 of UNTAET Regulation 2000/15), it is not the salne other acts like gcnocidc, war crimes and crimes against lzumanity.

86 Section 5 enumerates the crimes against l~iunanity that fall within the Special Panels' jurisdiction and reads, in relevant part:

30 See also Report of tlie Secretary-General Pursuant to Paragraph 2 of Security Coi~nciI Resolution 808 (1993), UN Doc, Sl25704, 3 May 1993 [ h e r e i n a h Report orthe Secrctal-y- General regarding the ICTY Statute], accompanying tlie proposed statute for tlie International Criniinal Tribunal for the Former Yugoslavia. Paragraph 34 of this report addresses the principle ofnullzrm crimen sine lege and reads, in relevant part:

34. In the view oftlie Secretary-General, tlie application of the principle nulluni crimen sine leg? requires that the international tribunal sliould apply rules of international liunianitarian law which are beyond any doubt part of custoniary law so that the problem of adherence of some but not all Statcs to specific conventions does not arise. This would appear to be particularly important in tlie context of' an interna~ional tribunal prosecuting pcrsons responsible for serous violations of international humanitarian law.

3 1 There may be a question about to what extent East Timor fell within the scope of Indonesia's treaty obligations. This question arises from uncertainty as to whethcl- Ijasl Ti~?ior was Icgally part oi'Indo11esia.

5.1 1701. f l ~ c ~ / I I I I ~ ~ O S L ' . \ (?/' t11c' / ) I . ~ ~ . s c I I ~ ~.~>gllllitiol~, " L ' I - ~ I I I L ) . ~ (ig:'liil~.s/ I~l{n~cilri/\~" I I I L ' I I I I S C I I I 1' of' t l~e .fi)llo~vi~lg crc.1.s \\,l~clr C ' O I I I I \ I ~ / ~ C ~ I / 11.s pn1.r of'cr I I ~ ~ ~ / C S / I I ~ C N ~ 01' S J ' S I C ' I ~ I ~ ~ ~ ic (rtf~icli 111111 ( / ~ I . ~ C - / C ( / cig~iii~.sf 1 1 1 1 ~ ~

cil-ilicrl~ yop~ll~ltion, 111itll ~ I I O ~ I ~ / C L / ~ C ~ f ' l l ~ ~ ~l t t~~cl ; : (ci) l 'vfl~t~~/C/~; (I?) E.vtcl~l~lil~ntio~z; (c) En.s/nvc~~rent; (~11) Depo~.tcltion 01.,fi31-ci01~' tran.(;Ji.r o/'populatioll; (e) I I ~ ~ ~ I ~ ~ S O I Z I ~ Z ~ I ~ I or other severe depl.ivcttion o/'phj?siccrl lil~cl-IJ? ill violntion oj: fi~ndanle~~tcrl t4zlles ~J'intcr~~crtional 1~11.v; t) Tortr ~ I Y ;

(yl R~rpe, se,~tlal slczvery, enjbrced p~.ostitzltion, .fbrced pregnal~cy, e~zJOrced sterilization, or any other jbr~rl of' S ~ , Y L L C Z I violence cf

co~vlparable g m vity; (/I) Per~ec~ltion against a!yy i~l'entiJiaDlc? group or collectivity on political, racial, national, ethnic, culttlral, religious, gender as dejined in Section 5.3 oj'tlze present regulation, or other groz~n~1.s that are tlniversally recognized as impertnissihle under international Iaw, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the panels; (i) Enjorced disappearance ofpersons; 6) The c r i M n ~ o f apartheid; (19 Other znhl. nane acts of a similar character intentionally causing great szflering, or serious injury to body or to mental or physical health.

87 Of these different crimes against humanity, the following were included in the jurisdiction of the International Military Tribunal (Article 6(c) of the Charter of the International Military Tribunal (IMT)): nmrder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crinle within tlie jurisdiction of the Tribunal, whether or not in violation of don~estic law of the country where perpetrated. In addition, tlie ICTY and ICTR Statutes enumerate tlie following crinles against 11u111anity within each tribunal's jurisdiction (Article 5 ICTY Statute and Article 3 ICTR Statute, respectively): murder; extermination; enslavement; deportation; in~prisonnlent; torture; rape; persecutions on political, racial and religious grounds; and otlicr inhumanc acts. Accorcling to the Report of the Secrctal-y General that accompanied

tlic draft S t a t ~ ~ t c of thc ICTY, tlicsc acts arc considcrccl CI-iuics undc~ C L I S ~ O I I I : I I ~ ~ int~r11:ltionill I ~ H ? '

88 In t!lc present case, tlic accusccl Jlioni Frnncrl 1s chat-gcci u ~ t l l lmprisonmcnt or other scvcrc dcprivntion of physical libel-ty in viol:ition of filndamcntal rules of international law contrat-y to Section 5.1 (c) UNTAET Regulation 2000115, with torturc as crimes against hunianity, contrary to Section 5.1 (f) UNTAET Regulation 3,0001 1 5 .

89 The Special Pancl will therefore analyze whether or not tliosc specific crimes against hun~anity enumerated in the paragraph above and with which the accused is charged, are considered to be customary i~lternational offences in law.

90 In~priso~in~ent and otl~er severe deprivation of physical liberty in violation of fi~ndamental rules of international law. The IMT Charter and Tokyo Charter do not enumerate in~prisonment among the crin~es against hunlanity that can be prosecuted, but Control Co~uncil Law No. 10 as well as the ICTY and ICTR Statutes do.3' Although the custon~ary international law character oS inlprisonment seenls to be ~uldisputed, this nlight not be true for "other severe deprivation of physical liberty in violation of fundamental rules of international law."

91 The 1998 Diplomatic Conference irt Rome, which concluded the ICC Statute, added the term "otl~er severe deprivation of physical liberty, "for greater certainty."34 11 is stated in this regard:

(( The concern was that imprisonmentJ' might be interpreted restrictively so as to cover only 'prison 'I-lilce sitz~cltions, so the adclitional words malce clear that a broader scope was intended jbr this crime. Consistent with the relevant authorities, the crime was clejined so us to exclz~de legitimate cases oj' imprisontnent (szich as imprisonme~zt of' convicted crii~zinuls jollowing n genuine trial, lawfbl quarantine crnd so on).35

3 2 See Report of the Secretary-General regarding the ICTY Statute, sLtpl-n note X, para. 34.

3 3 THE ELEMENTS OF CRIMES AGAlNST 1-[UMANITY, sllprci note, at 88.

34 Id,

3 5 /I/.

92 In I\'i.~~c!/'elcrc, tlic ICTY Trial Chamber notcd that tlic I-ight oi' a n individi~al not to be deprivccl of his or hcr libcrty arbitral-ily is also cnslirincd ill a nun~ber of Iii~mnn rights i~istri~mcnts, both ilitc~nntional and regionn~.'~' Mowcvcr, tlie Cli:~n~bcr noted tliat 21s these instruments show, this right docs not constitute an "absolute right", and i t can be rcstrictcd by procccl~~rcs established by law.

93 Torture as C ~ ~ I I I C ' S a ~ a i n s t humanity. Torture is stipulated in Article 5 or ICTY statute wliicli provides tliat: " Tllc international tribi~nal shall lic?vo the power to prosecute persons responsible for thc followilig crimes when comniitted i l l al-med conflict, wl~etlicr international or internal i n character,

,237 ancl clircctccl against ally civilian population.. .(f) torture.. . . It is also includcd in Article 3 of ICTR Statute which says that" tlic ilitcrnational tribunal for Rwanda shall 11:lvc the power to prosecute persons rcsponsiblc for the following crimes when comnlitted as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds.. .(f) torture. Article 7 of ICC statute as article 5 of UNTAET I-egulation 2000130 provides that: . . .Crinics against l ~ u ~ l ~ a n i t y rneans any of the following acts when comn~itted as part of widespread or s y s t e ~ ~ ~ a t i c attack and directed against any civilian population, with ltnowledge of tlie attack.. . (f) torture.. ." It is necessary to underline tliat the definition of torture in the ICC Statute is exactly tllc same as the one in Section 5 of UNTAET Regulation 2000115.

G. FACTUAL FINDINGS

94 In light of the admissions of all the evidence, especially the testirnonics of tlie witnesses Benedito Da Costa, Mario Gonsalves and Jose Gouvcia Leite, and the statements niade before the investigator by the witnesses in the case, especially the witnesses Amelia Belo, Aurea Cardoso, Rosa Dc Jesus, Adao Manuel, Hermnio Da Graca, Mariana Da Cunha, Victim A, Victm B, Victim C, the reports on the situation of Human rights in East

36 Pvosecutor v. Milorad I(l.r?ojeiac, Case No. IT-97-25-T, Judgment of 15 March 2002 [hereinafter Krnojelnc], paras. (Including Article 9 of the UN Declaration of I-luman Rights, Article 9 of the ICCPR, Article I1 of the International Convention on tlie Suppression ancl P~uiishnient of the Crime oEApastl~eicl, AI-ticle 5 of the European Convention on I-Iuman Rights, and Article 7 of the American Convention on IHurnan Riglits).

T~niot., note by tlic Sccl-ctal-y Gcncral, Iicport of tlic Incloiics~an Com~n~ssion on liuma~i riglits violations in East Ttmol-, .~:I~LILII-)~ 2000, tlic

i Court 1s conv~nccd th:lt tlic hllowing l-~~cts occ~~rrccl '~:

. . , 95 Tlic wic1csp1-cad or systematic attacks wcsc cfircctcd against thc c1\11l1an pop~~lution i n East Timot- in 1999. Tlic attacks occul-red during two intc~.connccted periods of intcnsificd violence. Tlic first pcriocl followccl tlic announccmcnt on 27 January 1999 by the Government of Incloncsia that the pcople of East Timor would be allowed to choosc bctwecn autonomy with the Rcp~~blic of Indonesia or indcpcndc~lcc. This pcriod ended on 4 September 1999, the date of the announcen~cnt of the rcsult ol' the popular c o n s ~ ~ l t a t i o ~ ~ in which 78.5 per cent voted against tlic autonomy proposal. The second period followed the anno~~nccment of the result of the popular consultation 011 4 September tl~rough 25 Octobcr 1999.

96 The widespread or systen~atic attacks were part of an orchestratccl campaign of violence, that il~cluded among other things incitement, threats to life, intimidation, ~unlawf~~l confinement, assaults, arson, and otllcr forms of violence carried out by 111enlbers of the pro-autonomy militia, members of the Indonesian Armed Forces, ABRI (Angkatan Bersenjata Republilc Indonesia) renanled TNI (Tentara Nasional Indonesia) in 1999, and members of the i ~ l d c ~ ~ ~ i a l ~ Police Forces (POLRI) with the acquiescei~ce and active participation of Civilian and Military authol-ities.

97 In 1999, militia groups operated throughout East Tirnor. Their goal was to support autonolny with Indonesia. The Integration Fighting Forces (PPI), (Pasukmn Pejz~ang Integrasi) under tlle command of Joao Tavares was the umbrella organization under which tliese militia groups were organized. It had the backing of the TNI and the Civil Adininistration. PPI Commanders issued, called upon and incited n~ilitia groups and their inen~bers to intiinidate independence supporters and those perceived to support them. The militia groups participated in the widespread or systematic attack and acted and operated wit11 impunity.

98 The Indonesian Military in East Tinlor consisted of both regular territorial forces (BTT) and Special Combat Forces, i.e. the Strategic Rcserve Comnland (ICOSTRAD), (Konzundo Strutegis AngI~clt~ln Dnrat) and Special Forces Con~mand (KOPASUS), (I<oniando Pasultan Khusus), all of which liad ~units, staff officers and soldiers stationed in East Timor.

3s ,. I hose statcmcnts and reports wc1.e liiecl ~vitll Illc i~iciict~lielit ;111d ;~cl~iiitted by the accu\utl ipcrjon d~il-ing l i i ,

guilty plea, as ~~tldcrlinccl ill paragral~li 44 of'tllc prescnt ju t ignic~i~, SLIJII-a, p;lge 1 I .

-! 9 Tlicsc large-scale attnclts wcl.c (lit-cctud against civiltans ol'all agc SI.OLI~X,.

~xcclominuntly against individ~~als \\tl~o S L I ~ J P O I - ~ L ' ~ or \\,CI-C I ~ C ~ C ' C I \ T C ~ to

support independence and rcsultcd in Ictlial i n j ~ ~ r y i~lcluding dcutll l7y sharl) force injury, gun shot i~ij~iry, bli~nt Sorcc tr;lun~rl or a combin:ltion of' the thrce.

100 Widespread or systematic attaclts were also currictl out against property and livestock, including mass destruction of houscs by Firc, stcali~lg 01' property, lcilling and stealing of livestock.

101 The widespread or systematic attaclc rcs~ilted in the internal ciisplaccmcnt of thousands of persons. Additionally, the forcible transfer and deportation of the civilian populat,ion within East Timer and to West Timor, Indonesia was an essential feature of that orchestrated campaign of violence.

102 Under tcrnls of the 5 May 1999 Agreements, between Indonesia, Portugal and the United Nations on the popular consi~ltation, thc Incloncsian security authorities had the responsibility to ensure a safe environment devoid of violence or other for111s of intimidation as well as thc general maintenance of law and order before and during the pop~llar consultation. The TNI and POLRI (which were the Indonesian Security Authorities) failed to meet these obligations and made no attempt to clisarnl or neutralize the militia groups. They were allowed to act with impunity.

103 Between April and October 1999, the TNI forces present in Bobonaro District were ICODIM 1636 wit11 its headquarters in Maliana. There were six sub-districts Military Co~nrnands (ICORAMIL) each headcd by a DANRAMIL. 111 1999, the ICORAMIL in Lolotoe sub-district was initially under the corninand of Sergeant Elias. After his deputy Scrgeant Caetano was killed, 2nd Lt. Bambang Indra replaced him.

104 From February to October 1999, the Indonesian Police Force (POLRI), the state agency for ~~pliolding the law and public order were also present in East Timor. It also incl~icled a Mobile Police Brigade (BRIMOB), whose Units and members were stationed in East Tiinor, including in Bobonaro District.

105 Between Febr~tary and September 1999, the Civil Administration in Bobonaro District was headed by the Bzipati (District or Regency Administrator), who was appointed by the local parliament and Goverrior of East Tiinor with the approval of thc Minister of Interior of the Republic of Indonesia. The villages were headed by village Chiefs (I<cpultr Dc.scr).

I

106 In Lolotoc sub-district, the lncloncsian A~,~iiecl I;oI-ces in pasticul:~~. tlic TNI f ' under t l~e coni~nand and co~itrol oi'2"" Lt. B:lmbang Inill-:I, \ \ro~-li~d in closc 1

cooperation with two of tlic principal al-med militia g r o ~ ~ p s , namely I<ac~- Mctin Mcrnli Putill and the Daclurus Mcl-ah I'i~tili (Red a~icl White Typhoon).

107 On or about 5"' May 1999, Joao Tavarcs as Suprcmc Commander of the PPl prcsidcd over the inauguration ceremony of the ICMP militia. No attempt was made by the TNI and POLRI to disarm or nci~tralizc the ICVlP militia or the DMP militia. Thcy were allowed to act with impunity.

108 2"" Lt. Barnbang Indra as co1li11lander (DANRAMIL) o r t l ~ c sub-district military llad authority and control over the TNI in Lolotoc sub-district. The TNI in Lolotoe Sub-District under thc command of 2"" Lt. Bambnng Indra provided KMP militia with logistic support. Many incmbcrs of thc KMP militia received some for111 of compensation from the Indonesian Governn~ent for their actions against the civilian populatiot~ of Lolotoc Sub-District in support of autonomy for East Tinlor.

109 Between April and October 1999, both the TNI in Lolotoe sub-district and the ICMP militia conducted acts of violence against those members of thc civilian populatio~~ in Lolotoe sub-district who were considered to be pro- independence, linlted to or syi~npathetic to the independence causc. Thc concerted attaclts included intimidation, threats, unlawf~~l arrests and detention, interrogations, arsons, murders, torture, inhumane and degrading acts, and other acts of persecution. Many acts were dircctcd in particular against wornen wliose husbands were prcsurned to be FALINTIL (Forcas Armadas De Libertacao Nacional De Timor Lcste: Armed Forccs for the Liberation of East Tinlor) or supportcrs of independence.

110 On 5"' May 1999, Joao Tavares as Supreme Colnrnander of the PPI appointed Joao Frai~ca Da Silva alias Jhoni Franca as Cornnlander of thc I<MP niilitia. Joao Franca Da Silva alias Jhoni Franca as Co~nmander of the KMP ~llilitia had authority and control over members of the ICMP militia. Joao Franca Da Silva alias Jhoni Franca reinained a ~nen~bcr of t l ~ c ICMP militia until l ~ e was removed as its Commander sometin~e in early June 1999.

1 1 1 On or about 22 May 1999 nlilitia men~bers of the ICMP militla membcrs went to the l~ouse of Bendito Da Costa and Amelia Belo. Militia members were armcd with a rifle, machetes: sivords and l<nlves. Thcy aslted Bend~to Da Costa and Amelia Belo \vhcre their son Mario was. At the mate1-1n1

i time Mario \vas n FALINTIL member. Bcnclito Da Costa ~nl i )~-~i icd 111111t1;1 i mcmbcrs that Ilc did not I ~ ~ O I V ~vlicrc Mario \ i las. blilit~a mumbc~.s stal-tcd to beat Bcnciito Da Costa. Militia m c ~ n b c ~ s started to tic Bcnd~to Da Cobta to a polc in his l i o~~se . I-Ic remained ticd up tlicre until the next clay. On the nest day mcmbcrs of tlie ICMP ~iiilitia rcturncd. Tlicy tied Bcnd~to Da Costa and Amclin Belo's hands bcliintl tlicir backs. Bcndito Da Costa, Amclia Bclo and tlicir two cliildrcn werc forced to walk to Lolotoc. It wrls approxiniately a 2-Iioiu walk. Wlicn they arrived at Lolotoe, Bcnciito Da Costa, Amclia Bclo and their two cliildrcn wcrc talcen to the KORAMIL, where they were placed in a sinall roo111 and loclted up. Bcndito Da Costa, Ainclia Belo remained in detention until somctimc in July 1999.

112 Adao Manuel was a supporter of indepcndencc for East Tinlor. On or about 22"" May 1999, due to the threats against tlie supporters of indcpcnclence, Adao Manuel was hiding at thc church in Villa witli Marlo Goncalves, Jose Afonso and Afonso Noronha. The ICMP militia knew about his presence at the church. Men~bers of the ICMP militia wcnt to thc church and forcibly brought out Adao Manuel fro111 the chi~rch. HIS liands were tied and he was talcen to the ICORAMIL in Lolotoc sub-district. At the ICORAMIL in Lolotoe sub-district Joao Franca Da Silva alias Jhoni Franca and other MM subjected Adao Manuel to severe physical violciice. Adao Manuel's right ear was cut witli a knife. Joao Fra~ica Da Silva alias Jhoni Franca and other mititia menlbers c o , ~ : ~ - ~ o i ~ s l y beat Adao Manuel for two hours, after which he was dragged out to the playground, where he was still being beaten while being interrogated about his involvement with FALINTIL. Adao Manuel was detained in the ICORAMIL in Lolotoe sub- district until July 1999, during wliicl~ time he was subjected to filrthcr severe beatings by Joao Franca Da Silva alias Jhoni Franca and other militia members while being ii~terrogated.

113 Mario Goncalves was a supporter of independence and a member of CNRT. Mario Goncalves gavc public speeches in Guda Village encouragi~~g the people to support and vote for the i~ldepcndence of East Timor. Mario Goilcalves was afraid that he would be killed by the TNIIICMP militia and went to hide in the jungle for one month. Mario Goiicalves thcn came o~ l t of hiding and sought refuge in tlie churcl~ in Villa. On or about 24"' May 1999 about oiie hundred illembers of the I<MP militia led by Joao Franca Da Silva alias Jhoni Franca went to the cliurcli. Mario Goncalves was ordered to come out of tlie church. When Mario Go~icalves ca11ie out of the cliurcli he was bcaten by the ICMP militla members whilst being dragged to the field outside the CNRT office. At the field, Joao Franca Da Silva alias Jhoni Franca orderccl members of the

_ _ .' 8' /

I 1 I<rVIP Militia to beat M ~ I - i o Goncnlvcs in ~LII-ns. Ap1,rosi111;1tcly tliil-11.- i

scvon I<blP militia mcmbcrs bent Mario GoIIc~I \~L 's . .lo30 I'~.;~IIc;I 1);1 Sil\~;i alias Jlioni Fr:tiica also ; ~ t t ; l ~ l i ~ d Mario Gonc;iI~os \\:it11 ;i ni3~Iicto, ci~tti~ig liini on his right ark11 and stabbing hi111 111 the left sshouldc~.. Joao Francs Da Sillla alias Jlioni Francn cut off Mario Goncalves' right car. I-lis car was tlirowi~ on the ground and Joao Franca Da Silva alias Jlioni t7r;lncr1 Sol-cccl Mario Goncalves to eat it . Mario Goncalves Scared for his lifc ancl did as he was ordered by eating his right car. Joao Franca Da Silva alias Jlioni Franca ordered that Mario Goncalvcs to be hcld with tlic ot11c1- detainees in the ICORAMIL building in Lolotoe. Mario Goncalves was detained there until soinetimc in July 1999.

114 Jose Gouveia Leitc was the vice-secrctary for CNRT in Lolotoe. At the material time 11c was a supporter of the independence movement. On or about 24 April 1999 Jose Gouveia Leite feared for his lifc and ran illto the jungle as he had heard that the ii~embers of Dadurus Mcrall Putih militia had come to his village of Guda and were loolting for lli111. 011 or about 7 May 1999 he received a letter through his brother in law Anebel reqilested that Jose Gouveia Leite come down to Lolotoe and report to the leaders so that he can be freed. On or about 21 May 1999 Jose Gouveia Leite left the forest and went to Lolotoe . Shortly after his arrival, Joao Franca Da Silva alias Jhoni Franca and other militia members went to see him and took Jose Gouveia Leite to the elenlentary school, where they ordered tlie militia members present to beat him up. Jose Go~lveia Leite was thereafter talten to the CNRT office in Lolotoe sub-district and again beaten contiiluously along the way. At the playgroilnd outside the CNRT office, Joao Franca Da Silva alias Jhoni Franca told Jose Gouveia Leite to confess his involvenlent with FALINTIL. He confessed. Joao Franca Da Silva alias Jhoni Franca ordered 6 KMP militia men~bers to beat Jose Gouvcia Leite again. Jose Gouveia Leite was cut above his eye and bled. Jose Gouveia Leite was thereafter taken to the Sub District Police Officc where they n ~ e t an Indonesian officer, Martin. Jose Gouveia Leite was then talten to the KORAMIL in Lolotoe sub-district and interrogated and beaten. Jose Gouveia Leite was detained in the ICORAMIL Lolotoc sub-district with the other detainees. He was released sonictime in July 1999.

115 On or about 20"' May 1999, Aurea Cardoso and her two children wcrc hiding at the house of Euzebio Da Costa because they feared for tlicir lives as she ancl her husband were supporters of independence. Approxiniately 60 lilenlbers of the KMP nlilitia surrounded the house. Anlong tile I<MP militia present, Aurea Cardoso sccognized one Antonio Berc whom she knew to be fro111 Ciuda sub-village. Antonio Bcre I<nocltcd 011 tlie door ancl

I<MP Militia to beat Mario Concalves in turns. Approsimntcly thirty- i i

se\/cn KMP militin 111embers bcat Mario Goncalvcs. Joao l;r:~nc:~ DII S i lvn i

alias Jhoni F1.311~3 also attaclted Mario Goncnlvcs ~ v i t l i ;1 I I I ; IC~IC~C, cutti~ig 11i111 on his right am1 and stabbing him in the left sho~~ldcr . Jo l~o F~.anc;\ Da Silva alias Jhoni Franca cut off Mario Goncalves' right car. I-Iis ear was tlirown on the ground and Joao Franca Da Silva alias Jhoni Francn forcecl Mario Goncalves to eat it. Mario Goncalves feared for his life and did as he was ordered by eating his right ear. Joao Franca Da Silva alias Jhoni Franca ordered that Mario Goncalves to be held with the othcr detainees in the KORAMIL building in Lolotoe. Mario Goncalves was detained tliere until sometime in July 1999.

114 Jose Gouveia Leite was the vice-secretary for CNRT in Lolotoe. At thc material time he was a supporter of the independence movement. On or about 24 April 1999 Jose Gouveia Leite feared for his life and ran into the jungle as he had heard that the members of Dadurus Merah Putih militia had come to his village of Guda and were loolting for him. On or about 7 May 1999 he received a letter through his brother in law Anebel rcquestccl that Jose Gouveia Leite come down to Lolotoe and report to the leaders so that he can be freed. On or about 21 May 1999 Jose Gouveia Leite left the forest and went to Lolotoe . Shortly after his arrival, Joao Franca Da Silva alias Jhoni Franca and other militia members went to see him and took J ~ ) S ' Gouveia Leite to the elementary school, where they ordered the militia members present to beat him up. Jose Gouveia Leite was thereafter talten to the CNRT office in Lolotoe sub-district and again beaten continuously along the way. At the playground outside the CNRT office, Joao Franca Da Silva alias Jhoni ~ r a n c i told Jose G o ~ ~ v e i a Leite to confess his involvement with FALINTIL. He confessed. Joao Franca Da Silva alias Jhoni Franca ordered 6 KMP militia members to beat Jose Gouvcia Leite again. Jose Gouveia Leite was cut above his eye and bled. Josc Gouveia Leite was thereafter talten to the Sub District Police Office where they met an Indonesian officer, Martin. Jose Gouveia Leite was then taltcn to the KORAMIL in Lolotoe sub-district and interrogated and beaten. Josc Gouveia Leite was detained in the KORAMIL Lolotoe sub-district with the other detainees. He was released sometime in July 1999.

115 On or about 2oth May 1999, Aurea Cardoso and her two children wcre hiding at the house of Euzebio Da Costa because they feared for their lives as she and her husband were supporters of independence. Approximately 60 members of the IOAP militia surrounded the house. Among the ICMP militia present, Aurea Cardoso recognized one Antonio Bcre whom slle h e w to be from Guda sub-village. Antonio Bere ltnoclted on the door anc!

i

cnllccl fill- ilurca Cardoso to come out. She could not t i ~ i c l tlic keys to tlic /

SI-ont door ~tnd wlicn slic tlcluycd in coming out, tile 1<MI' ~iiilitia ~ I - C S C I I C

started tllrowing stones. Aurca Casdoso then cxitcd thc I io~~sc wit11 Ilcl- t\\,o cliilctrcn tliro~igli the window. A ~ ~ r c a Cardoso was infornlcd that shc and 1ier two cliilclren W C ~ C to be arrested by tlie militia bec;~usc tlicy could not locate her husband Scbnsti~~no Am~~r:il. Militia mcmbcl-s tool< her and 1 1 ~ 1 -

childrcn first to Zoilpo Village where tlicy stayccl overnight and tliercaltcr to Lolotoc. Tl-tcy wcrc detained at the ICoramil. On the next day Joao Franca Da Silva alias Jhoni Franca interrogated Aurca Cardoso or1 the whereabouts of hcr husband and whether she supplicd food to FALINTIL while thrcatcning her that if she did not speak thc tl-utll he would cut off onc of her children's ear and force her to cat it. Aurca Cardoso and hcr two children werc detained at the ICORAMIL in Lolotoc sub-district. Aurea Cardoso and her two cllildrell were releascd sometimc in July 1999.

1 16 Sometime in July 1999, benedito da Costa and other detainees in the Koramil were released.

117 During their detention at the various places in Lolotoe sub-district, Bendito Da Costa, A~nelio Belo and their two children, Adao Manuel, Mario Goncalves, Jose Gouveia Leite, Aurea Cardoso, and other detainees were loclted in a sinall room without proper sanitation facilities. The detainees were subjected to extremely unhygienic conditions -.lid were not given food or water regularly.

118 Herminio De Graca was a rneinber of the CNRT and was its chief representative in Zoilpo sub-village in Guda Village. In discharging his duties as Clzief Representative of CNRT in the sub-village, I-Ierminio Da Graca spolte to the local population about democracy, self-determination, freedom fro111 colonization and frecdoin of choice. He addresscd approximately six thousand people in seven villages. Sometime in May 1999, as Herlninio Da Graca was on his way to Maliana on his motorbilte, he was stopped by two ICMP members, one of whom was Jose Mai~puta . They informed Herininio Da Graca that Joao Franca Da Silva alias Jhoni Franca wanted to see him. The 2 members escorted I-Ierniinio Da Graca back to Lolotoe to the house of Joao Franca Da Silva alias Jhoni Franca. There, Joao Franca Da Silva alias Jhoni Franca questioned Herminio Da Graca about FALINTIL. After 2 hours Herminio Da Graca was ordered to report to the ICORAMIL on the next day, which he did . On the next day, a TNI sergeant interrogated Herminio Dn Graca at tlie ICORAMIL about his links to FALINTIL. Whilc questioning him, the sergeant sat on a cl~ail. anc l placed the chail- leg o n Herminio Da Graca's foot. t1e1-minio Da Graca was

-.

thcn sent to thc house oS Manuel Da Costa, :I lo\v-ranking TNI oftlci~ll, \vIicrc 1 1 ~ was dctnincd unt i l somctimc iri July 1999.

i 119 On or about 20 May 1999 about 50 ICMP militia mcnibcrs and n fc~v TNI

soldicrs went to G L I ~ ~ village to the housc of Jacob Da Costa Barros, a pro-a~ttononiy ~~117porter. Wliilc tlicrc, they ordered that the vill;igcrs be assembled outsidc the housc of Jacob Da Costa Burros. They gave a spcech to the villagers prcsent telling them that thcrc is inSol-mation that the villagcrs were supporting FALINTIL with food and that some ol'thc fenlale villagcrs were having relationships with FALINTIL nie~i ib~rs . The names of Mariana Da Cunha, Victitn A, Victim B and Victim C, were rcacl out from a sheet of paper accusing them of having rclationsliips with FALINTIL ~IICIII~C~S. Mariana Da Cullha, Victinl A, Victim B and Victim C were independence supporters and that tlicre was common ltnowlcdgc of this fact. Militia it~formed tlie villagers that ICMP militia prescnt would go to Tob~lr sub-village and ordercd the villagcrs present to re~nain at the house of Jacob Da Costa Barros until they returned. Later on that day, members of the ICMP militia returned to the housc of Jacob Da Costa Barros. They ordered that Mariana Da Cunha and others be taltcn to Lolotoe. Mariana Da Cunha was tl~cn talcen to a house in Lolotoe, where she was held against her will six nights. 011 or about 27 May 1999 Joao Franca Da Silva alias Jlioni Franca calile to the house where she was detained and released her.

120 Soii~etime in May 1999, members of the ICMP Militia and TNI, went to the residences of Victim A, Victim B and Victinl C in Guda Villagc. Members of the ICMP militia and TNI were arrnecl with automatic weapons, grenades, machetes and h ives . Some of theln were wearing with TNI uniforil~. Victim A, Victim B and Victitn C were talcen to a house in Lolotoe. Joao Franca Da Silva alias Jhoni Franca was at the house, Victim A, Victirll B and Victim C were held against their will at the house for approxitnately one week, during which time they were forced to cook for meillbers of the militia. Sometime in May 1999, Joao Franca Da Silva alias J11oni Franca, and other ICMP militia i~~elilbers tl~ereaftcr took Victim A, Victim B and Victim C to the PICK building in Lolotoe. Victin~ A, Victim B and Victim C were held against their will at tlie PI<I< building for 3 days. A few days later, Victiin A, Victinl B and Victim C were la!cr moved to the house of Joao Franca Da Silva alias Jhoni Franca and were forced to stay there for approximately one 111011th. During tliis time, Victim A, Victin~ B and Vlctinl C were foi-ced to cook for Joao Franca Da Silva alias Jhon~ Franca. 011 or about 8 J ~ l y 1990 Victi111 A, Victrm B and Victilll C wei-e talten back to Guda V~l lage and wet-e then r e t u ~ n c d to lllc~t-

rc~pcct i \~c Iioiiics. Tlirougl~out tllc pel-iocl of tllcir dotention, V~ctini !\, / I

Victiiii U and Victim C wcrc gu~il-dcct and their nio\lc~iic~its controllctl. TIicy li\fcd on tlic threat of dcnth nncl believed tliat tlicy had no option otlicr t l ~ r ~ n to obcy their captors.

1-1. INDIVIDUAL CRIMINAL RESPBNSABILITY

12 1 The accused is indiviclually crimin:~lly responsible for the crimes alleged against him in this indictment in violatio~l of Section 14 of UNTAET Regulation 20001 15.

122 Joao Franca Da Silva alias Jhoni Franca, together with other militia and TNI officers coiiinlitted and incited to the comil~ission of the acts of iniprisonn~eiit and torture. By iniprisoning and subn~itting Beiidito Da Costa and Amelia Belo, Adao Manuel, Mario Gonsalves, Jose Gouvcia Lete, and Aurea Cardoso and her two children, l~erminio Da Graca, Mariana Da C~lnlia, Victinl A, Victim B and Victim C to other severe dcprivation of Pl~ysical Liberty in violation of f~~ndamental r~lles of international law, and by torturing Bendito Da Costa, Adao Manuel, Mario Gonsalves and Jose Gouveia Lete, Johni Franca was engaging his responsibility.

Under section 14.2 and 14.3(a) to (c) individual criminal responsibility results if the individual com~l~itted, planned, instigated, ordcrcd, solicited, induced, aided, abetted or otherwise assisted in the comlllission of thc crimes, or attempted commission. Individual crimiilal responsibility also results if an individual in any other way contributes to the coniniission or attempted con~mission of the crime, if such contribution is intentional and is either (i) made with the aim of f~lrthering the criniinal activity or purpose of a group; or (ii) is made with the lcnowledge of the intention of the group to corninit the crime.

124 Moreover Joao Franca Da Silva alias Jhoni Franca Itnew or had reason to ltnow that the TNI and Militia under his direction and control wcrc committing tlie acts described above, or had done so. Additionally tiicy failed to take necessary and reasonable iileasures to prevent such acts or to punish tlie perpetrators thereof.

125 Joao Franca Da Silva alias Jho~ii Franca is criminally responsible as superior for tlic acts of his subordinates in violation of Section 16 of UNTAET Regulation 2000115. Superior el-in~inal responsibility is the responsibility of a superior for thc acts of his SLI~OI-dinates i f the superio~.

4

- Ll

, line\\/ 01. h;ld reason to kno\v t l ~ l t the s~i l~ord~natc \\a\; al7c)~it to c~i i l i~i i t such acts or hact done so and the S L I ~ ~ C ~ I O ~ k111cd to take IIL 'CCSS;I I .~ S ~ C I ~ , 01-

reasonable measures to prcvcnt s~icli acts or to punis11 tllc 17c1-pct1.ato1.\ thcrcoi'. I t has been shown that acts incrim~nntcd wcrc coinmittcd by, oi- ;it tlic instigation of, or with tlic consent of, a person i n authority. Tliat pcl-son was Joao franc:^ Da Silva alias Jlioni Franca who instigntcd acts tlillt \\lcl-c subsccluently committed by their suborclinatcs.

I. LEGAL FINDINGS

126 Article 5 of UNTAET Regulation 2000115 sets out various acts that constitute crimes against 11~111ianity, when those acts are com~l~itted as part of a widespread and systenlatic attack and directed against any civiliali population, with l<nowledge of tlic attack. Amoi~g tl~osc acts we find Torture and Iti~prisonn~ent or other severe deprivation of physical libcrty in violation of fiu~darnelltal rules of international law.

127 The accused Jhoni Frarlca is acc~lsed of Torture and Ilnprisonrnent or other severe deprivation of physical liberty in violation of fi~ndanlental r~lles of inter~~ational law.

Torture

128 The Special Panel considers that torture is a crime against hurna~iity pursuant to Article 5(f) of UNTAET Regulatioil 2000/15. The samc section in (d) defines torture as " the intentional infliction of severe pain or suffering, whether pllysical or mental upon a person in the custody or under the control of the accused; except that torture shall not include pain or s~~ffer ing arising only from, inherent in or incidental to, lawfill sanction. UNTAET Regulation 2000115 provides tlle same definition of torture as in Rome Statute.

136 The most instructive definition of the elements of tort~lre as a crime against Humanity can be found in the PCNICC's Draft Elemcnts of rimes'" falling within the jurisdiction of the ICC. Indeed according to Article 9 of the ICC, the Draft ElerrLents of Crinles shall assist the Court in interpreting the crimes. Altliougli, the Draft Eleiments of Crimes has to date not bccn

"' I<epul.t ol'the I'~-el,ul.;ltory Commission for the I~lter-national Csirnil~al C'u~rr.~, Finillizcd tll-a1.i

test ol'tlie Elements ol'Crilnes

rclicd 011 by tlic ICC, ill light of tllc I'act that tlicy prcse~it an r~rt~cul:ltion 0 1 ' i

the clcmcnts of oflknccs in contemporary i~ltcrnationnl crimi~ial la\{' atid assist i n the interpretation of' Article 7(1)(t) of the ICC Stntutc, which is similar to Section 5 of UNTAET Regi~lation 2000115, tlic Spccinl I':\~icl considers tlic PCNICC's Draft Elements as containing the most instructi~~c: definition of the offcncc of torture for pul-poscs of the law of East Timor. In tlic PCNICC's Draft Elements, the elemcnts arc as follows:

"1 . The perpetrutor ii7jlicte~l severe physiccrl $1. nlentnl pain or SLI~J~I - iny ~1po17 o i ~ or I I IOIT ~ C I . S O I I S . 2. Sz~ch person or persons )were in the custucly or zlnder the control oj'thc yeryetrtrtor. 3. Sz~ch pain or szcffering did not arise only jronl, and ttjus not inherent in or incidentcrl to, tlr~vfi~l sanctions. 4. Thtr condtrct was conznzitted as part of a tvide,spread or systenzatic attaclc clirected agcrinst LI civilian population. 5. The per etrntor lcnevv that the conduct was part of or inten f ed the condtict to be part of a widespread or systematic attack directed aguinst a c~vilian

> I popz~lation.

137 Torture is also defined in Articles 3 ICTY and 5 of the ICTR Statutes respectively as:

..any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act lie or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination oC any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acq~~icscence of a public official or other person acting in an official capacity."4'

138 This latter definition of torture is also the war crimcs definition of torture and because it includes the requiren~ent for the torture as a cr in~e against humanity to have a purpose, it is not

40 I t is unciel-stootl tl1;it no specilic plil-[)ose ncecl be ~)~-ovctl lor. tllis el-imc.

i I ICTY si~les at a r t~c l c 3

instructive in this case. Tllc ribscncc ol' the rcc1i1i1-cnlcnt fi)~. thc clement of 17111-pose is ;III i~i~l)ot-t;l~it c11a1igc in tlic sul~sta~lti \~c law relating to torture as ~t a l lo~ \~s for an cxp~insivc 1ll3plicntion of the crime unlilte tlic prcvious rcstrictivc applicat~on.

139 I t is important to point out that the law of East Tinlor contains ri

similar definition of to r t~~re as that of the Statutes of thc Tribunals in Scction 7 of UNTAET Rcgulation 20001 15. As the Accused Jol~iii Franca was charged under Scction 5 , which has a different definition from Section 7, the Special Pancl docs not find it necessary to discuss the Scctio~l 7 definition of torture and will restrict itsclf to Scction 5 of UNTAET Rcgulation 20001 15.

140 The Special Panel therefore following the PCNICC's Elcmcnts of Crimes, defines the essential elements of torture as:

" 1. The perpetrator inflicted severe physical ,pr mental pain or suffering upon one or more persons. 2. Such person or ersons were in the custody or R under the control o f t e perpetrator. 3. Such pain or sufferini; did not arise only from, and was not inherent in or incidental to, lawful sanctions. 4. The conduct was committed as widespread or systematic attaclc directe against a civilian population.

Kart a

5 . The erpetrator knew that the conduct was part of or inten ‘I? ed the concl~icf to be part of a widespread 01- systematic attaclc directed against a civilian population."

141 It has been shown that Jollni Franca was acting as Comn~ander of KMP and that through his actions he inflicted severe physical or mental pain or suffering on several victiins as charged. Even though it appears that there may have been a purpose to his actions it being either to punish those perceived to support the pro-independence ~novement or to obtain information from them, evidence of purpose was not

conclusively Icd. I n any case, tile Spccial Panel 11~1s a11-cady stated that there is no requircnicnt for 13~1rposc.

142 in the prcscut casc, thc Spccial Panel finds that tllc fi)llo\ving clomcnts of tortusc as a crimc against hrrmanity Ilavc bccn satisfied:

143 The pcl-pctl-rtor inflicted severe plijlsical or I I I C / ~ / L I ~ P C I ~ I I (11-

.s~rffi.~-it~g . . zrpo~z one oi- irzol.c yer,so~l.s. Evidcncc Icd on bchal f of the prosccution, adn~ittcd by t l~c Accused and acccptccl by thc Special Pancl establislicd that nut~lerous victims were subjcctcci to severe physical pain at the hands of the accuscd or on his orders. The gravest instance was the accused cutting of the ear of Mario Goncalves and ordering him to eat it. The Special Panel finds that this must have caused the victinl severe physical pain as well as serious mental pain arising out of bcing asked to eat his own flesh.

144 Such person or persons were in the czutody or zlnder the control of the perpetrator. The Accused person admitted that the victims of torture were in his custody and control. Indeed, the victims of the torture are also the victims of unlawfiil imprisonn~ent. The Special Panel finds that the element of custody and control of the victim has been sufficiently established by the evidence led.

145 Such pain or szgfering did not arise only Jrorn, and was not inherent in or inciclental to, lawfill sanctions. The Special Panel finds that there was no legal justification for the infliction of pain or suffering on the victims and none has been suggested by the Accused. It is clear from the evidence that the infliction of torture on the victin~s was not undertalcen pursuant to any legal process.

146 The cotzclzict was cornlnitted as part oj' u wide.spreacl or systeniatic nttaclc clirectecl agui~z.st (I civilian popzilation. It has been shown that the torture was perpetrated as part of a widespread or systenlatic attack, and that acts of violcncc 2 n d

tlil-cats dircctcct against the civil1~111 ~ ~ o p ~ ~ l a t i o n in Lolotoc Sub- District tal-gctcd thoso wlio supported or were p c ~ - c c ~ \ cci to support indcpcnclcncc, p~-incip:llly ii>r politicnl rcasons. Mcmbcrs of thc civilian ~sop~~ln t io~ i wcl-c s~~bjectccl to urclicstrr~ted violence bccausc of their opinion on thc ti~turc political status of East Timor, bccause thcy supported FALANTIL or wcrc sympathetic to it or its mcmbcrs.

147 Tlle yei-petrator. kizew tlznt tllc cor~~luct was part oj'oi- ~ ~ T / C M L I C L I tlze corzd~rct to hc pui-t c$ n ~vidcspreacr' or systcr~lcrtic nttclcli directcc.2' agaiuzst a civilin12 yoplilntioiz. The Accuscd admitted to the Special Panel that l-re was aware of thc context in .cvhicli his ~ m l a w f ~ ~ l actions were cotnn~itted.

l[mprisonment or other severe deprivation of physical liberty in violation of fundamentall rules of international law.

129 The Special Panel considers also that In~prisonment or other sevcrc deprivation of physical liberty in violation of f~~ndamental rulcs of international law is a crime against hun~anity pursuant to Article 5(e) of UNTAET Regulation 2000/ 15, which however mentions it without adding any specific definition.

130 However since Section 5 of UNTAET regulation says that "crimes against humanity n~eans ally of the following acts when comi~litted as part of widespread or systematic attack and directed against any civilian population with laowledge of tlie attack, we can say that the imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law must be perpetrated as part of a widespread or systematic attack, and with lu~owledge of the attack.

131 It has been sliown that the In~prisonment or other severe dcprivation of physical liberty in violation of fundamental rules of international law was perpetrated as part of a widespread or systematic attack, and was directcd against the civilian population, with the l<nowledge of t l ~ c attack.

132 Article 7 (1 ) (e) of the Rotne Statute contains a similar definition of t l~c Crime against humanity of imprisonment or other severe deprivation of physical liberty as that contained in Section 5(e) of UNTAET Regulation 200011 5

133 At the same time the PCNICC's Elements of Crimcs providcs t11c following elements for the Crime Against Humanity of

- + - I

CI-imc a~a ins t li~i1n31iity of impsisonnlcnt or otlic~. sc\ cru dcp1'1vatio11 ol' I

pliysicnl libel-ty:

1. Tlilc. yer.l?c.trcrtor il1rpi.isonc~l orle or /rror.c ~ C I . S O I I S ut* ot/lei.lr?ise sevei'el~1~ ~Jcpi.ivctJ o11c 01. i ~ ~ o r c ~ ~ . I ~ S O I I S o f y l ~ ~ ~ s i c n l liberty. 2. The gr*ovity oj'tlle conduct I V C I S S I I C I I tllnt il IVCIS ill v iol~t ion oj~i~neJc~lnleritnl r.rrles oj'i~~te~.r~cr~iontrl Icr~v. 3. The perflpett.ntor ~vcrs n~vc~re of the jirc/~~c/l circ~irr~strrnces thcrt estnblished the gravity of the concl~~ct. 4. The conduct tvas corn~nittea' as pnrpt of ~r tvidespread or systeinatic altnck directed clyaitzst CI

civilian popzilation. 5. The per etrator lcnetv that the condz~ct tvas part of or intenc ! ed the condzict to be port of a tvidesl~read or systematic attaclc direcled against n civilian popzilation.

134 The Accused person admitted to inlprisoning the persons alleged by the prosecution in the indictment. The Special Panel considers that this conduct was in serious violation of f~lndamental rules of international law and tliat the Accused was aware of the r'af't la1 circumstances that established the gravity 01- seriousness of his conduct taking into account the length of the detention, the nuillbers of people detained and other factors accompanying the detention such as torture or beatings of some of the detainees.

135 The Special Pailel coi~siders that the imprisoninent was conlmitted as part of a widespread and systematic attack directed against the civilian population. The Accused himself admitted to this.

136 Finally, the Special Panel considers that the Accusecl was aware that cor~duct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

137 Pursuant to the consideration of the aforementioned elements, it is Found legitin~ately and in accordance with the law that the Dcfenclant has co~nnlitted in May 1999 the crimes of torture and irnprisonn~el~t or other severe deprivation of physical liberty in violation of filndamental rilles of international l a w , as specified i n Scct. 5.1 (e) and (d) of U.R. n" 200011 5 .

138 For i i~c aforcmcntioncil reasons, and in light of the ad~i~issions of all tllc cvidcncc made by the :~cci~scd in addition of his plea o S g ~ ~ ~ l t y , ~ I I ~ S L I ; I I ~ ~ to Sections 29A and 39 of UNTAET Regulation 2000130 as amcndccl by Regulation 2001/25, the Special Panel accepted on the 2211d Novcn~bcr 2002 the plea of guilty of the accused Joao Franca Da Silva A1i;is Jhoni Franca made on the 21" October 2002, finds that all thc essential required to prove the cri~nes to which the admission of guilty relates have been established as required by Scction 29A.2 of Regulation 200 1125.

139 The accused Joao Franca Da Silva Alias Jhoni Franca was Convicted of: 1111prisonl11ent or other severe deprivatioll of pl~ysical libcrty in violation of f~~ndamental rules of interllational law, of Bendito Da Costa and Amelia Belo, Adao Manuel, Mario Gonsalves, Jose Gouveia Lcte, and A~lrca Cardoso and her two children, as crimes against humanity, contrary to Section 5.1 (e) UNTAET Regulation 200011 5. Imprisonment or other severe deprivatioi~ of physical liberty in violation of fundame~~tal rulcs of international law, of Herminio da Graca, as crimes against I~umanity, contrary to Section 5.l(e) UNTAET Regulation 2000115. Tmpriso11111el1t or other severe deprivation oi- physical liberty in violation of f~undan~ental rules of international law, of Mariana Da Cunha, as cri111es against l~umanity, contrary to Section 5.1 (e) UNTAET Regulation 2000115. Imprisonment or other sevcre deprivation of physical liberty in violation of f~lndarnental rules of international law, of Victim A, Victim B and Victim C, as crimes against llumanity, contrary to Section 5.l(e) UNTAET Regulation 2000115. Torture of Bendito Da Costa, Adao Manuel, Mario Gonsalves, and Jose Go~lveia Lete, as crimes against l~umanity, contrary to Section 5.1 (f) UNTAET Regulation 2000/15.

140 Pursuant to these findings of guilty, the Court will proceed to scntcncc Jl~oni Franca, in order to determine an appropriate penalty.

17acts rclntcci to thc scntctlcc.

141 The Public Prosecutor and the dcfcnsc suggcstcd in their agrccmont tha t the accuscd bc zivcn a pcllalty of 7 years.

142 T11e accuscd advanced the circ~~mstanccs prevailing i l l I999 which brougl~t him to join i~~ili t ia, the effort 11c made in ordcr to avoid sufl'cring f ion~ the victin~s, the fjct that 11e is still young and like to bc with his "pcoplc": I-le told the Court: "( ...) I was .fbrced or I ~ L L ~ to joiil lhc az~tonomy to choose the best way to postpone my death. At thnt t i ~ ~ l e I clicin't join to hurt rny nation, my people, which I have lived with /br the least 25 year but because oj'tlze regime that was in power. At that tiirle 1 started as a youth ofclandestine, (...) at that time in 1999 arose tile lrlilitia in Maliana (...) the militia and the TM started to carry out opc/z/ion.s searchingjor pro independence youths (...) I was a youth and the hemi cd' organizing ofall the activities oj'the clandestine (...) I was c~pproachcd by Indonesian intelligence commander St~trisno. He said to rne it is better that you surrender than die. To postpone my death I )vent (...) Ijoined at r7c .clme time he new my baclcgrouncl as pro independence youth, (...) at

that time he appointed me as a commander of ICMP. I had to act according to their orc1er.v and wishes but I had no Jiill power. I was a commander of dolls and was told what to clo by the regime oj'the TNI. AJier I became a militia I hacl to satisfy the hearts oj'the TNI who orcl'ered me to tell the youth to join the pro az~tonoiny. To satisJj, their hearts 1 carried out these things but forever it never happenecl an arrest, a cclptz~re or burning. The TNI started to szlspect me; they said you organized 1111

these strategies to have this against us. (...) I day later the commander of' TNI aslced me you must do something because you have been szlspectecl by the TNI. (...) I who izad never thought about hurting the people like me, was forced by the powerfill regime and the scenario oJTNI, cat that lime 1 was forcecl to act that were not hunza~w against my people hzrt it wn.s 17ot oJ'tny desire. I was a co/r~r?zarzder oj'clolls c~nd told by the powefirl regitne $1 clicln 't clo these, I woi~ld be the first to die. Ancl now I tntrstJi-lce the law. I did things, once more I wozllcl lilce to itgornl tlint I did my llcts in 1999 thut huppenecl in Lolotoe, c~nd now I have to firce the lulv. i\/ly fi~ietzcls, brothers, I scly this: I never cuptuiae anyotle I didn't hut-/z at2j1 holrse. / 1 ~ ~ 1 . 9 jzlxt u c/oll C ~ I ? Z / ~ Z N I Z I ~ ~ ~ " ~ O ~ 1 motzlh there ~vn.s cr Lot of 1/1111g\ 1 [lid crgainst lily hrotlzers like hlc//-ro Cotlclaves; at thut tiille / I i lcrr /oi.cc'd

I

to c/o tl~lrt t11111g 1 0 S I I ~ Y ~ 1111 t l ~ c ~ /ICYIII /C' 111111 ~~ic'fiiii cC I3 I I ~ I . s ~ I I ~ I / / \ ' ( 1 1 tl/(j i

tiiil~' ~ J ' J I I ~ I - c ' ( I c ~ I c ' / I / ~ ~ I ~ ill 11 .sflrc/c~~lt 11'o1.1~ 11o~i.s~ l folt I I I ~ ~ , S C ~ ~ / 111ir1 ~ I I c ~ \ ~ \I.c'I.c~ 1 1 ~ 1 1 1 1 ~ 1 1 C ~ I I ~ I .sfill j9o1111g. I i1101~c)lI [ I I C I I ~ j/-o~i\ t11c~it- 1~111c,c) of l /c~/c)~~t ioi~ Jol, tlleit. 0 1 ~ ~ 1 1 s~i/-\/il)lll, 111q) ~(lill' ill I I ~ L I C S ~ I * O O I I I . 1 llillil't 11111.1 f l i ~ i i ~ , \11111lt

I I N / I / ~ L ' I I " / ito t l /c / i~ I J \ ) U . S I I ' ~ C O I ~ ~ I I I C I I I I I C I ' C / I ~ ~ ~ I I I O I ' C . I I * P C / I I L > . S ~ t1111/ t l l ~ 11ic't1111.\ I \~)orlll/ lilic to s l r j ) to t11e111 thllt 1 I ' C ~ I ' C ~ ~vllat I dill to fl1c111 al1~1 tllc j~c~oplc~ c~j'Lolo~oi C ~ I I L / tlie victiiils c1/'lY99. Tlle colr/.t v\lil/ clecillc 0 1 1 11 J ' C I I I ~ I I C C

vvorrld lile to scry I nil1 still silzglc I ~vorrlcl lilie to go 11o1ile ~rilli he \~litlr 1 1 1 ~ )

people ollce llgcrill, I t l zn / l kyo~~ j~[dges"

143 The Special Panel has taken into account the following:

Mitigating circumstances:

144 It is important to recall that thc accuscd pleaded g~iilty to thc chargc against him. As the Court established, his guilty plea was made voluntarily and was unequivocal. Jhoni Franca clearly u~lderstood tllc nature of thc charge against him and its coi1scqLiences. As already dccided by this Court in the case the case of Dos santos4' a person, who is honest to admit guilt, coming with at1 open heart and an open mind, has to be treated consequently. T11ere are not many cases, in which thc accuz,d . crsons admit guilt.

145 Joao Franca da Silva Alias Jhoni Franca cooperation with the Court was substantial. He freely admitted the participation in charges of imprisonment and torture. The accused has aided in the administratiol~ of justice by cooperating and providing fi l l disclos~lre of the crimes that occurred.

146 Jl~oni Franca, prior to the commission of the crime for which he has becli convicted, lived in a very coercive environment. There was pressurc from militia to join criminal activities. As the accused stated, the coercive environment has been a factor for the accused in joining the militia and committing the crime, although there are so111e who refised to join criminal activities. The fact that some joined whilc others were able to resist, does not 111ean that there was 110 coercive environment. Tlie coercive environment, in which the crimes were committcd, has been a crucial factor for the Accused in committing the offences. I-ic was not able to resist thc solicitations of the regimc tliat was on power at tliat t11nc. 1Ic

4 1 The Public I'rosecutor v. Do Santos

147 Joao Franca cia Silva Alias Jlloni Franca cxprcsscci rcmorsc for the crinic that occurred. He asltcd for forgiveness. The accused is rcmorscfi~l, by saying in tlic Court that he was sorry. Me did not want thc Court to go to the trouble of proving something that his conscience wants to rclcasc. Tllc accused said in the Court that he is apologizing for harming his people; hc is apologetic to the victims O F his acts, all the victims of the cvcnts occurred il l 1999, thc people of Lolotoc.

148 The Special Panel bears also in mind the fanlily baclcground of thc accused and the fact that the accused is young and can be usefid to thc society. The fact that he is twenty seven years old and that hc I I ~ S been very cooperative with the Court, in addition to showing remorse publicly, would suggest possible reliabilitation. T l ~ c closc relatives of the accused cai-rte to testify before the Court. The parents of the accuscd arc alivc, as well as some of his brothers and sisters. I-Ie has a family to go back to. I-Ic is not an outward cliaracter that canilot integrate into society. Hc himself told the Court that he would lilce to go home to be with his peoplc once again. There is a need to restore hiin to his norinal life as so011 as possible for his rehabilitation.

149 The Special Panel has also talcen into consideration tlie fact that the accused has no previous conviction.

150 Having reviewed all the circunlstances of the case, the Special Panel is of the opinion that exceptional circui~ilstances in mitigation surrounding thc crime committed by the acc~ised afford hinl solllc clemency.

Aggravating circumstances:

151 The victims were deferiseless persons whose inability to respond to the threats and harm was unconditional;

152 Altliougl~ the convicted person told the Court during tlic prc-sentencing hearing that he was a doll, his fiinction \iras proven to be that of the

clccisioti-lnakcr of all llic actions ill f~~llillnicnt o f a ~ I : I I I 11t-:liiccl hy lndoncsinn oflicct-s and pcrlhl-mcd by pat-aniilit:~~.~ prntil7s ;~g:~i~lr t tlic indcpcndencc sl~ppol-tcrs in East Timor, wl~icli lcatls to the concl~~s io~i tllat 11c was one of tliosc who were supervising tllosc actions and tlict.cfi)~.c csercis i~~g a role of authority during thc imprisonmcnt, and thc tortul-c.

Sentencing policy

153 According to Scct. 10.1 (a) oS UR-2000115, for tlic crimes rcfcrred to i n Sect. 5 of the aforenilcntioncd Regulation, in determining the tcrms of in~prisonmcnt for those crimes, the Panel shall have recoursc to the general practice regarcling prison sentences in the courts of East Timor and under international tribunals. "In i111posing the sentences, the pancl shall ta le into account sucll factors as the gravity of the offencc and the individual circumstances of the convicted person" (Sect. 10.2).

154 The penalties imposed on accuscd persons found g~lilty by the Panel are intended, on the one hand, as retribution against the said accused, whose crimes must be seen to be punished (punitz~r quia peccatur). They are also intended to act as deterrence; namely, to dissuade forever, others who n ~ a y be tempted in tl-5 f ~ ; ure to perpetrate such atrocities by showing them that the international colilnlu~~ity shall not tolerate such s e r i o ~ ~ s violations of law and human rights ('punitur ne peccetur).

155 Finally, the ol~jective of prosecuting and p~inishing the perpetrators of the serious crimes committed in East Tinlor in 1999 is to avoid impunity and thereby to promote national reconciliation and the restoration of peacc.

156 The Panel considered all the aggravating and mitigating circun~stances upheld both by the practices of East Timorese courts in applying the Penal Code of Indonesia (ICUHP) and the standards derived from the ICTY and the International Tr ib~~nal for Rwanda, apart from those provided for under UR-2000115 as well as under general principles of law.

Conjunction of punishable acts

157 The critl~es of imprisonmcnt and torture as cri~xcs against humanity for wl~icli the accused Jhoni Franca was convicted are a conjunction of

p~~nisl~:tblc acts. I t \\ l :~s proved t l in t tllc \,ictims \vcrc first arrcstcd and imprisoned and then torturccl while in prison. Tllc~.cSorc, tllc I):~~lcl dccmb that thc accused 1x1-Sor~ncd scvcrnl acts (imprisonment ancl tort~11.c) ~\ , l l~cll formu in itself more than onc crimc with such a ~clntionsli~p that they must be considcrccl as one cont in~~cd act.

158 The Sect. 10.1 of UR-2000115 r c c o ~ ~ ~ u ~ c i i d s the Panel to apply Indonesian law in determining the terms of imprisonmcnt for thc crimes against humanity committed in East ~ i r n o r ~ ~ . Accordingly, Art. 64(1) of Penal Code of Indonesia (ICUE-IP) provides that only one of the n~os t severe pcnal provisions shall be i m p ~ s c d ~ ~ . I11 this casc, since the punishment for the crin~cs of in~prisonrnent and torturc arc the same, 0111~ oiic ol' them shall bc scrved. The accuscd shall tlierefore serve only the punisl~ment for onc of the convictio~~s.

159 Talting into account the aggravating and mitigating circumstances, the co~lj~ulction of acts and the gravity of tlze crime and the aboven~entioned considerations, the Special Panel deems appropriate the punishment of 5 (five) years imprisonment

44 Sect. 10. I of UR-2000115: "A panel may imposc one of the following penalties on a person convictctl of a crimc sl>ccilictl untlcr Sections 4 to 7 of the present I<cgulation: (a) imprisorimcnt for a spcciticd r i~~ i l i l~c r o f years, \vliicIi may not cxcccti ;I

max im~tm of 25 year-s. 111 determining the tcrrns of impr-isoilnicnt for the crimcs rclkrrcd to in Scct iu t~s 4 to 7 of Ilic p i c m t I-cgulntiori, the Panel sliall have recoursc to t l~c !xtlc~.al l>racticc rcoartlinrr prison scntciices in tllc co~tt-ts o f L3ast 7rl1110i. i11:tI

tt~lclcr i~itcrt~:~tio~i;il tt-iI)~iiials ( , . .)". 45 Art. 64(1) o f K U I I P : "Ifatnoily sc\,eral ncls, c w n tilough each i t ) itself l'orrns o critiic. cir miidcinc:lilo~-. tiicrc I \ \ l lil: : I

rclntioiiiliip h a t they mllst be consiclcrctl as one c o n t i n ~ ~ c i l act, oiily onc peiial l~ruvis ion sl?all ;il>l>ly \\Iicrcl~)., ill c;i>i: of '

tiiIfi.rcricc, the riiosi scvcrc pctial pro\,isioii sllaII be iillpoicd."

I,. DHSII'OSH'H'BBN

For the at'ol-cmcntioned reasons, having founc! tlic accusud JOAO FRANC'A DA SILVA ALIAS JI-TONI FRANCA guilty, considering thc arg~in~cnts of tlic parties, the evidence prcscntcd at the scntcncing hearing, thc t~+ansitional rulcs of Criminal Proceciilrc, the Spccial Panel fincls and imposes sentence as follows:

With respect to the defendant JOAO FRANCA DA SILVA ALIAS JHONI FRANCA:

( 1 ) GUILTY for all the 4 charges of impriso~lrncnt or othcr scvcrc deprivation of physical liberty in violation o r fiundan~cntal rulcs of international law, as crinie against humanity, a crii~le stipulated under Section 5.1(e) UNTAET Regulation 2000/ 15;

(2) GUILTY for the charge of torture as crime against humanity, in violation of Section S.l(f) UNTAET Regulation 200011 5 ;

(3) In p~inisliment of those crimes, sentcnces JOAO FRANCA DA SILVA ALIAS JHONI FRANCA to an imprisoillnent of 5 (five) years.

(4) Orders the defendant to pay the costs of the criminal procedure.

Credit for time serveci

According to Section 10.3 U.R. 1512000, section 42.5 UR-3012000 and Article 33 of Indoilesian Penal Code; the Special Pailel deducts the time spent in detentioi~ by JOAO FRANCA DA SILVA ALIAS JHONI FRANCA, due to an order of an East Tirnorese Court. The defendant JOAO FRANCA DA SILVA ALIAS JHONI FRANCA was arrested and detained since 15 February 2001 to date' Therefore he was under detention for 1 year 8 months and 14 days. Accordingly, previous detention shall be deducted from the sentence today imposed, togetlier wit11 such additional time he may serve pending the determination of any final appeal.

,'!

En t 'o~.cc~n~cnt of scn tcncc i I

PL:;-sunnt to Sections 42.1 ancl 42.5 of UR-2000/30, tlic convicted shall bc ~m~ncrliatcly iliip~.isoncd ~ ~ n d shall spend the dul-ntion ol' thc pcnalty in East Timos.

Thc scntcncc shall be cxccutcd immcdiutcly, providcd this tlisposition as a warrant of arrest.

This dccisiol~ is providcct in onc copy to t11c Dcfcndant and his Icgal rcprcsentntive, Public Prosecutor and to tlic prison manager.

The Dcfcnsc has the right to file a Notice of Appcal within tlic coming 10 days and a written appeal statement within the following 30 days (Sect. 40.2 and 40.3 UR-2000130).

This Jcidgmcnt was rcndercd and dclivcrecl on the 5th Dcccmbcr 2002 in the District Court of Dili by

Judge Sylver NTUICAMAZINA, Presiding

Judge Benfcito MOSS0 RAMOS

Judge Maria NAl'ERCIA GUSMAO PER$EI

(Done in English and Bahasa Indonesia, the English text being authoritative)