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(Source Picture: NineMSN)

(Source Picture: NineMSN)

Ad Hoc Public Prosecutor v. Tono Suratman

Court Indonesian Ad Hoc Tribunal for East Timor, Indonesia
Case number 10/Pid. HAM/Ad. Hoc/ 2002/PN. Jkt. Pst
Decision title Judgment
Decision date 13 May 2003
Parties
  • Ad Hoc Public Prosecutor
  • Tono Suratman
Categories Crimes against humanity
Keywords crimes against humanity, murder, persecution, command responsibility
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Summary

Following violent clashes between two groups, one in favor of independence of East Timor and one against it, people of the former group sought refuge. In Liquiça, they hid in a church. In Diri, they hid in the house of one of their foremen. The attacks by an anti-independence militia caused the death and injury of many. It is claimed that several soldiers took part in the attacks. The question was whether the commander, Suratman, present in the area at time of both attacks, could be held responsible for what happened.

According to the Indonesian Ad Hoc Tribunal for East Timor, this could not be done. The involvement of his personnel could not be established and it considered the militia to be completely separate from the military. Thus, the Tribunal established that he had no effective control over those who actually committed the Crimes Against Humanity. The Tribunal could not conclude that Suratman had not taken enough action to prevent human rights violations from taking place. According to the Tribunal, he was there to look for a solution to the best of his abilities. Suratman was acquitted, which added to the international community’s concern about the effectiveness of the Tribunal.

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Procedural history

On 1 July 2002 Suratman was charged with responsibility for Crimes Against Humanity (murder and persecution) committed by troops under his command. The prosecutor alleged that Suratman knew or should have known about these violations, but failed to take the appropriate action. The prosecutor appealed against the Ad Hoc Tribunal’s acquittal of Suratman, but the Supreme Court confirmed Suratman’s acquittal, as the prosecutor failed to send the court transcripts of case proceedings to the Supreme Court.

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Related developments

On 22 February 2003, the Deputy General Prosecutor for Serious Crimes pursuant to her authority under UNTAET Regulations 2000/16 and 2000/30, as amended by 2001/25, indicted Suratman and several others with Crimes Against Humanity (murder, deportation and persecution). The indictment differed from the Ad Hoc General Prosecutor’s indictment, as the prosecutor alleged Suratman’s effective control, not only over his troops, but also over militia groups operating in East Timor in 1999, as he actively participated in the establishment and formation of these groups (paras. 242-251).

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Legally relevant facts

Preceding the referendum on the independence of East Timor of 30 August, violence erupted in the then Indonesian province. In the period from 10 June 1998 until 13 August 1999, Tono Suratman was a Military Post Commander in East Timor.

Early April 1999, the situation in Liquiça deteriorated quickly, as the pro-integration and pro-independence groups clashed. This led to approximately 2000 people from the pro-independence group seeking refuge at the complex of the Liquiça Church, which was subsequently surrounded by pro-integration group Besi Merah Putih and troops of the Indonesian Armed Forces (TNI). Suratman himself was present in Liquiça, discussing the situation with other senior military commanders, when the attack on the Church of Liquiça erupted on 6 April. Many were wounded or killed, though estimates vary.

On 17 April, pro-integration masses attacked the house of pro-independence leader Carrascalao, where around 136 refugees had taken shelter. Several were killed or injured.

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Core legal questions

The Court had to assess the charges made against Suratman: responsibility for Crimes Against Humanity (murder and persecution) committed by troops under his command. The prosecutor held that Suratman knew or should have known about these violations, but failed to take the appropriate action. Therefore, the Court had to assess the following:  

  • whether there was a ‘widespread’ or  ‘systematic’ attack;
  • whether the attack was known to be directly targeted upon civilian population;
  • whether troops under Suratman’s command were involved in the Crimes Against Humanity at the residence of Pastor Rafael Dos Santos in Liquiça on 5 and 6 April 1999 an at the residence of Manuel Viegas Carascalao in Dili on 17 April 1999.
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Specific legal rules and provisions

  • Articles 7(b), 9(a),(h), 37, 40 and 42 of Law Number 26/2000 on the Human Rights Court.

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Court's holding and analysis

The Panel held that after the referendum was announced, both the anti-integration and anti-independence groups commenced actions in patterned and organised ways to achieve their political ends. The incidents listed in the indictment should be regarded within this framework and therefore, the Panel considered the element of a ‘systematic’ and ‘widespread’ attack to be fulfilled (pp. 30-31). Hereafter, the Panel established that Suratman had enough information to know that an attack targeted upon civilians was taking place (pp. 31-32).

 

However, the Panel did not consider the third element (troops under Suratman’s command committing Crimes Against Humanity) to be fulfilled, due to ‘lack of proof’ of TNI involvement in the attack. Based on the majority of witness statements, the Court established that the TNI helped the Police in getting the situation under control (p. 34). The refusal to provide shelter and weapon for Carascalao was not perceived as an omission, as Suratman’s troops were already offering protection (p. 35.) Also, since Suratman was considered ‘pro-active’ in negotiations to establish peace in East-Timor, the Panel rejected the charge that he did not take sufficient action to prevent violations from taking place (p. 35). Thus, the Panel acquitted Suratman. 

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Further analysis

Trials held at the Indonesian Ad Hoc Tribunal for East Timor have been denounced by several human rights organisations, such as Human Rights Watch. A UN Commission of Experts, as reported to the Security Council, concluded that prosecutions before the Court were “manifestly inadequate”. The influence of politicians and the military on these trials has been considered to be a problem (Cohen). Therefore, it has been argued (Hirst & Varney) that the trials in Jakarta did not represent a genuine prosecution and thus, indictments issued by the Serious Crimes Unit should not be regarded to be in violation of the ne bis in idem principle.

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Instruments cited

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Related cases

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Additional materials