The Prosecutor v. Yayat Sudrajat

Court	Indonesian Ad Hoc Tribunal for East Timor, Indonesia
Case number	11/PID.B/HAM.AD HOC/2002/PN.JKT.PST.
Decision title	Judgment
Decision date	27 December 2002
Parties	Ad Hoc General Prosecutor Yayat Sudrajat
Categories	Crimes against humanity
Keywords	crimes against humanity, murder, persecution, aiding and abetting, command responsibility
Links	Judgment

Summary

Following violent clashes between two groups, one in favor of independence of East Timor and one against it, approximately two thousand pro-independence activists seek refuge in the church of Liquiça. An attack by an anti-independence militia causes the death and injury of many. It is claimed that several soldiers took part in the attacks. The commander of some of these soldiers, Intelligence Task Force officer Sudrajat, was present in Liquiça. Can he be held responsible for what happened?

Not according to the Indonesian Ad Hoc Tribunal for East Timor. The involvement of his personnel could not be established and the Tribunal considered the militia to be completely separate from the military. Thus, the Tribunal established that he had had no effective control over those who actually committed the crimes against humanity. Neither did it consider proven that he assisted in what happened. According to the Tribunal, he was there to look for a solution and tried to stop the actual attack to the best of his abilities. Sudrajat was acquitted, which added to the international community’s concern about the effectiveness of the Tribunal.

Procedural history

The Ad Hoc General Prosecutor indicted Sudrajat on 1 July 2002 (pp. 2-15). In the primary indictment, he was accused of crimes against humanity by not having prevented a systematic attack directed against civilians in the Church of Liquiça, inter alia by personnel over which he had the command. The indictment stated that he knew or ought to have known that troops under his command were committing these crimes, which caused the death of 22 civilians and injured 21 civilians; Sudrajat did not do everything in his power to stop or repress the crimes. Neither did he surrender the troops under his command to the authorised officials. Thereby, according to the prosecutor, Sudrajat acted in violation of Art. 42(1) (a), (b) in connection with Articles 7 (b), 9 (a)/(h), 37 and 40 of Law No. 26 year 2000 on the Human Rights Court. According to the subsidiary indictment, he deliberately assisted in the commitment of these crimes by not creating a conductive atmosphere to reconcile the two clashing groups, thereby acting in violation of Articles 7 (b), 9 (a)/(h), 37, 40 and 41 of Law No. 26 year 2000 on the Human Rights Court.

Related developments

The verdict was upheld by the Supreme Court of Indonesia in August 2004.

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 Sudrajat and several others with crimes against humanity (murder, deportation and persecution). The indictment differed from the Ad Hoc General Prosecutor’s indictment, to the extent that the latter indictment had primarily based Sudrajat’s accountability for the Liquiça Church massacre on his lack of control over the Intelligence Task Force Tribuana VIII, of which he was the commander, and on him not carrying out his duties to prevent the human rights violations from happening. In the indictment of 22 February 2003, the Prosecutor alleged that Sudrajat had had effective control, not only over Tribuana VIII, but also over militia groups operating in East Timor in 1999, since he had actively participated in the establishment and formation of these groups. (paras. 260-267).

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 January 1999 until December 1999, Yayat Sudrajat was Commander of Intelligence Task Force Tribuana VIII.

Early April 1999, the situation in Liquiça deteriorated quickly, as the pro-integration and pro-independence groups clashed. This led to approximately two thousand people from the pro-independence group seeking refuge at the complex of the Liquiça Church, which was subsequently surrounded by inter alia pro-integration group Besi Merah Putih and alledgedly by some of Sudrajat troops. Sudrajat himself was also present in Liquiça and was discussing the deteriorating situation with other senior military commanders when the attack on the Church of Liquiça erupted on 6 April. Many refugees were wounded or killed, though estimates vary.

Core legal questions

Regarding the primary indictment, the Ad Hoc Tribunal had to establish first whether a crime against humanity - a widespread or systematic attack known to be directly targeted at civilians in forms of deliberate killings and/or persecution -had taken place (pp. 33and 42). Secondly, it had to determine who was the perpetrator of the crime and thirdly, whether the defendant could be held responsible for that crime, due to ‘a hierarchical command line relation and effective control’ between the direct perpetrators and Sudrajat (pp. 39 and 44).

Regarding the subsidiary indictment, the Tribunal had to assess whether Sudrajat had attempted, conspired to or assisted in the commissions of crimes against humanity (p. 44).

Specific legal rules and provisions

Articles 7(b), 9(a)-(h), 37, 40 and 41 of the Law No. 26 year 2000 on the Human Rights Court (Law No. 26).

Court's holding and analysis

Although the Tribunal established that crimes against humanity had taken place in Liquiça Church (the attack was widespread and systematic (pp. 34-35), deliberately directed against citizens as part of a ‘policy’ of the Besi Merah Putih (p. 36) and the killings and persecutions were deliberate and premeditated (pp. 35, 37and 42)), it did not consider Sudrajat responsible. Regarding the charge of him having effective control over the perpetrators, the Tribunal considered unproven the involvement of three of Sudrajat’s troops in the attack (p. 40). Furthermore, a command line could not be established between Sudrajat and Besi Merah Putih. Neither did the Tribunal consider proven that Sudrajat was assisting or conspiring to commit the crimes. According to the Court, there was no evidence of Sudrajat being in contact with Besi Merah Putih about committing the crimes (p. 46). Also, the Tribunal established that Sudrajat was in Liquiça to find a peaceful solution and that he had attempted to separate the parties and to help victims (pp. 46-47). Hence, Sudrajat was acquitted.

Further analysis

Trials held at the Indonesian Ad Hoc Tribunal for East Timor have been denounced by several human rights organisations including Human Rights Watch. A UN Commission of Experts 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. Therefore, it has been argued 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.