The Ad Hoc Prosecutor v. Endar Priyanto

Court	The Indonesian Ad Hoc Tribunal for East Timor, Indonesia
Case number	No. 05/Pid.Ham/AD.Hoc/2002/PN.Jkt.Pst.
Decision title	Judgment
Decision date	25 November 2002
Parties	The Ad Hoc Prosecutor Endar Priyanto
Categories	Crimes against humanity
Keywords	persecution, command responsibility, crimes against humanity, Murder
Links	Judgment

Summary

The Ad Hoc Tribunal acquitted the Accused of both charges, as it found none of his subordinates to have committed serious human rights abuses. In addition, the Tribunal found that the Accused has not disregarded important information and has acted in the best of his power to stop the human rights violations.

East Timor’s foreign minister described the judgment as ‘scandalous’, whereas activists in Indonesia considered the judgments of the Ad Hoc Tribunal to be “mock trials...[as] a result of pressure from the military.” Florendo de Jesus, one of the witnesses, testified that he had recognized several people among the attackers as TNI (Indonesian National Armed Forces) members, one of them being his own uncle. The public outrage, mostly taking place in East Timor, came as a consequence of a belief that the Ad Hoc Tribunal is failing to try the Indonesian commanders involved in the violence, as well as from the previous acquittals, specifically those of army Lieutenant Colonel Asep Kuswani, police Lieutenant Colonel Adios Salova and mayor Leonita Martins.

Procedural history

Following the Charging Document by the Public Prosecutor, file case No. 07/HAM/Timor.Timur/05/2002, dated 31 May 2002, the Public Prosecutor required the Ad Hoc Tribunal to find the Accused “lawfully and convincingly, guilty” of the criminal offense of serious human rights violations in the form of crimes against humanity, as regulated by the Law No. 26 establishing the Ad Hoc Human Rights Court (p. 2). Two main charges were entered against the Accused:

failure, as a military commander, to acknowledge and to prevent or terminate the execution of crimes against humanity by the act of killing; and;
failure, as a military commander, to acknowledge and to prevent or terminate the execution of crimes against humanity by the act of widespread or systematic assault against a certain group.

Legally relevant facts

The Accused held the position of Military District Commander in Kabupaten Dili, 1627/Dili under SKEP-KASAD No. SKEP/504/X/1997, when the violence took place. His duties, among others, were to foster security in the region and to provide assistance and coordination to elements responsible for security (p. 3).

On 17 April 1999, a Grand-Roll Call for the Inauguration of PAM Swakarsa was held on the grounds of the Office of the East Timor. During the inauguration, Eurico Gutteres, the Commander of Ceremonies, broadcasted public calls live over the radio and called for violence and killing of CNRT and pro-independence leaders and members (pp. 3-4). As a result, a number of Pasukan Pejuang Integrasi (PPI) troops left the inauguration ceremony and went to attack and destroy the houses of two of the people specifically mentioned in Gutteres’ calls for violence. As a result, twelve persons were killed (p. 4), and four were wounded, hiding in the house of Manuel Viegas Carrascalao (p. 6). Eight members of the Indonesian National Armed Forces (TNI) participated in the attack, dressed as militia (pp. 4-5). Members of AITARAK (DURI) and Besi Merah Putih (BMP) have also been participating in the attack.

Core legal questions

Whether the Accused, as Military Commander at the time, was, under the circumstances, aware that there would be disorder and violence among the differing East Timor population in the City of Dili, especially as the referendum vote was approaching.
Whether the Accused, since he was responsible for the security in his jurisdiction, did not take the maximum preventive measures in the anticipation of the attacks on refugees who were inside the house of Manuel Viagas Carrascalao.

Specific legal rules and provisions

Articles 7 (gross violations of human rights), 9 (crimes against humanity as referred to in art. 7), 37 (sentencing for actions referred to in art. 9 letter a, b, d, e, or j), 40 (sentencing for actions referred to in art. 9 letter g, h, or i) and 42 (command responsibility, by acknowledging and preventing or terminating acts of gross violation of human rights) of Law No. 26 of the year 2000 establishing the Ad Hoc Human Rights Court.
Articles 6 (genocide) and 7 (crimes against humanity) of the Rome Statute of the International Criminal Court.

Court's holding and analysis

The Ad Hoc Tribunal found the Accused “lawfully and convincingly not proven guilty” for both charges. In addition, it found that “it was not proved that TNI personnel...were involved in the incident” (p. 30) and that “none of the Accused’s subordinates were proven to have committed serious human rights abuses and... [that] the Accused did not disregard information.” (p. 30) The Tribunal found the members of the BMP to be the “perpetrators of the attack” who “had intentionally assaulted the victims in Manuel Viegas Carrascalao’s house on April 17, 1999.” (pp. 31-2) Finally, it requested for the rights of the Accused in terms of capacity, position and respect and dignity to be restored, and charged Indonesia with all of the incurred costs.

Instruments cited

Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.
Indonesia, Law No. 26 of the year 2000 establishing the Ad Hoc Human Rights Court, Act 26 of 2000.