The Ad Hoc Prosecutor v. Lt. Col. Inf. Soedjarwo

Court	Ad Hoc Court on Human Rights, Central Jakarta State court, Indonesia
Case number	08/Pid.HAM/Ad.Hoc/2002/PN.JKT.PST
Decision title	Verdict
Decision date	27 December 2002
Parties	Ad Hoc General Prosecutor Letkol Inf. Soedjarwo
Categories	Crimes against humanity
Keywords	Command responsibility; crimes against humanity; East Timor; murder; Dili Diocese
Links	Judgment
Other countries involved	East Timor Turkey

Summary

Lieutenant Colonel Soedjarwo was a military commander of the Indonesian National Army (TNI) in the district of Dili between 9 August 1999 and 20 December 1999. Soedjarwo was found guilty of crimes against humanity because he failed to prevent his troops from attacking the Diocese office of Dili and the residence of Archbishop Belo in Dili on 4 and 6 September 1999. At least 13 civilians who were seeking refuge at these two places were killed during the attack.

Procedural history

In May 2002, the Ad Hoc General Prosecutor issued an indictment against Letkol Inf. Soedjarwo.

Related developments

On 27 December 2002, the Ad Hoc Court on Human Rights did not order Soedjarwo to go to jail. As a result, Soedjarwo remained free pending his appeal.

On 8 August 2004, the Appeals Court in Jakarta overturned the decision issued against Soedjarwa on 27 December 2002 and acquitted him of all charges.

Legally relevant facts

In 1999, the Indonesian government gave the East Timorese the option to vote for independence or for autonomy within the Republic of Indonesia. The referendum was held on 30 August 1999.

Between 3-5 September 1999, approximately 5000 pro-independence civilians took refuge at the Archdiocese of Dili.

On 5 September 1999, following the announcement of the result of the referendum held in East Timor, pro-Indonesian groups launched an assault using firepower and sharp objects against the civilians seeking refuge at the Diocese office of Dili.

On 6 September 1999, the pro-Indonesian group also launched an attack against the civilians seeking refuge in Archbishop Belo’s residence in Dili.

At least 13 civilians were killed while taking refuge in the two compounds.

Soedjarwo, who served as military commander of the Indonesian National Army (TNI) in the district of Dili from 9 August to 20 December 1999, was accused of failing to exercise control over his troops that killed civilians at the Diocese office of Dili and Archbishop Belo's residence complex, and of failing to take the necessary actions to prevent and halt such acts or to surrender the perpetrators.

Soedjarwo was the first military officer found guilty of crimes against humanity committed in East Timor following the 1999 independence referendum.

Core legal questions

Can Soedjarwo be found guilty of gross violations of human rights for the killings that took place on 5 and 6 September 1999?

Can Soedjarwo be found guilty under the doctrine of command responsibility for the killings that took place on 5 and 6 September 1999?

Specific legal rules and provisions

Decree of the President of the Republic of Indonesia No. 96, 2001:

Article 2 - jurisdiction to the Ad Hoc Court on Human Rights

Law No. 26 Year 2000 on the establishment of the Ad Hoc Human Rights Court, Republic of Indonesia:

Article 7(b) - Crimes against humanity as gross violations of human rights
Article 9(a) - Killing as crime against humanity
Article 31 - Hearing procedure
Article 37 - Penal provision
Article 42(1)(a) and (b) - Responsibility of military commanders

Rome Statute of the International Criminal Court, 1998:

Article 28 - Responsibility of commanders and other superiors

Court's holding and analysis

The Ad Hoc Court on Human Rights dismissed all grounds of objections raised by Soedjarwo. One of the objections raised was that the trial lasted for more than 180 days, thereby exceeding the maximum length of the trial period as set by law. However, the Court held that the extension was justified because of the large number of witnesses (pp. 14-15).

In analysing whether Soedjarwo could be found guilty, the Court specifically addressed the elements of crimes against humanity (with a detailed discussion of ‘widespread or systematic’) and command responsibility, thereby referring tothe Rome Statute, the practices of the International Criminal Court, and to trials held before both the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) (pp. 16-21).

After analysing the facts of the case, the Court found Soedjarwo guilty of gross violations against human rights for committing murder, because he was ‘effectively responsible to ensure the safety and security of the town of Dili’ but ‘had failed in preventing the riot at Archbishop Belo's residence’ (p. 27). However, the Court held that Soedjarwo ‘had given his maximum effort to stop the riot that occurred at the Diocese of Dili and at the Archbishop Belo’s residence, hence preventing further casualties’ (p. 27).

Soedjarwo was sentenced to five years imprisonment and was ordered to pay the trial fee of RP. 7,000.00.

Further analysis

D. Cohen, ‘Intended to FAIL: The Trials Before the Ad Hoc Human Rights Court in Jakarta’, International Center for Transitional Justice, August 2003, pp. 40-43.

Instruments cited

Decree of the President of the Republic of Indonesia No. 96, 2001.
Law No. 26 Year 2000 on the establishment of the Ad Hoc Human Rights Court, Republic of Indonesia.
Rome Statute of the International Criminal Court, 1998.

Related cases

District Court of Dili, Special Panel for Serious Crimes (East Timor), The General Prosecutor of the Democratic Republic of East Timor v. Paulo Gonsalves, Marcelino Leto Bili Purificasao and Rosalino Pires, Case No. B0-84-99-SC, Indictment, 11 June 2002.
Indonesian Ad Hoc Tribunal for East Timor (Indonesia), The Prosecutor v. Herman Sedyono, Liliek Koeshadianto, Gatot Subyakto, Achmad Syamsudin and Sugito, Case No. 01/HAM/TIM-TIM/02/2002, Judgement, 15 August 2002.
Indonesian Ad Hoc Tribunal for East Timor (Indonesia), Ad Hoc Prosecutors v. Timbul Silaen, Case No. 02/PID.HAM/AD.Hoc/2002/PN.JKT.PST, Judgement, 15 August 2002.
District Court of Dili, Special Panel for Serious Crimes (East Timor), The Deputy General Prosecutor for Serious Crimes v. Col. Herman Sedyono et al., Case No. 14/2003, Indictment, 8 April 2003.
Indonesian Ad Hoc Tribunal for East Timor (Indonesia), The Ad Hoc Public Prosecutor v. Adam Damiri, Case No. 09/PID.HAM/AD.HOC/2002/PH.JKT/PST, Judgement, 31 July 2003.