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(Source picture: Wikipedia)

(Source picture: Wikipedia)

The Prosecutor v. Herman Sedyono, Liliek Koeshadianto, Gatot Subyakto, Achmad Syamsudin and Sugito

Court The Ad Hoc Human Rights Tribunal at the Human Rights Court of Justice of Central Jakarta, Indonesia, Indonesia
Case number Case Reg. No. 01/HAM/TIM-TIM/02/2002
Decision title Judgement
Decision date 15 August 2002
Parties
  • The Prosecutor
  • Herman Sedyono
  • Liliek Koeshadianto
  • Gatot Subyakto
  • Achmad Syamsudin
  • Sugito
Categories Crimes against humanity
Keywords command responsibility, crimes against humanity, Murder
Links
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Summary

After the referendum on the independence of East Timor from Indonesia, violence erupted between pro-independence and pro-integration groups. On September 6, 1999 the Ave Maria church in Suai, in the Kovalima regency, in which civilians were taking refuge, was attacked by pro-integration militias Laksaur and Mahidi. The militias entered the church with homemade firearms and sharp weapons, killing 27 people.

At the time of the attack on the church in Suai, Herman Sedyono, an Indonesian Army Officer, was the regent or Chief of Kovalima regency and as such the head of government and the head of the regional authorities.

Before the attack a meeting took place at the official residence of Herman Sedyono. Herman Sedyono and the four other accused, Lilik Kushardianto,  Ahmad Syamsuddin, Sugito (Indonesian military officials) and Gatot Subyakto (a police officer) were all present at the incident at the Suai Church.

The Court found that grave human rights violations, in the form of murder as a crime against humanity, had taken place at the Suai Church. The crimes against humanity were committed by militia groups Laksaur and Mahidi. The Court found insufficient proof that the accused were responsible for the attacks on the basis of command responsibility. With regard to Herman Sedyono and Gatot Subyakto, the Court found that they were not military commanders or persons that effectively act as military commanders, as Sedyono was in function of head of the government and Subyakto was a police officer. The Court concluded that there was no organisational relation between the militias and the accused and that the accused had no effective control over the militias, so that the accused could not be held responsible for their actions. 

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Procedural history

Herman Sedyono et al. were indicted on February 19, 2002.

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Related developments

A parallel trial against Herman Sedyono et al. was held In East Timor, at the Dili District Court for Serious Crimes. No final decision was rendered in the case due to the accused all residing in Indonesia.

In 2004, the Supreme Court upheld the August 2002 decision by Indonesia's Ad Hoc Court on East Timor to acquit the five defendants.

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Legally relevant facts

After the popular consultation on the independence of East Timor from Indonesia violence erupted between pro-independence and pro-integration groups.

Herman Sedyono, an Indonesian Army Officer, was the regent or Chief of Kovalima regency  since the end of September 1994 until the incident on September 6, 1999, and as such the head of government and the head of the regional authorities.

On September 6, 1999 the Ave Maria church in Suai, in the Kovalima regency, in which civilians were taking refuge, was attacked by pro-integration militias Laksaur and Mahidi. The militias entered the church with homemade firearms and sharp weapons, killing 27 people.

Before the attack a meeting took place at the official residence of Herman Sedyono. Herman Sedyono and the four other accused, Lilik Kushardianto,  Ahmad Syamsuddin, Sugito and Gatot Subyakto, were present at the incident at the Suai Church. They did not make attacks on the church and never entered the church compound. Herman Sedyono coordinated with Lilik Kushardianto and the other accused to put a stop to the violence.

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Core legal questions

  • What constitutes a crime against humanity?
  • How is civilian command responsibility established as a mode of liability?  

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Specific legal rules and provisions

  • Articles 7(b), 9(a), 37, 42 and 55(1)(2) of Law No. 26/ 2000.

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Court's holding and analysis

The Court first considered whether there were grave human rights violations. Considering that grave human rights violations covers crimes against humanity, the Court continues to examine what exactly constitute a crime against humanity, specifically in the form of murder. The following elements have to be satisfied: the action has to be committed as part of widespread and systematic attack; the attack was knowingly aimed directly towards to the civilians; and committed in the form of murder as stated in article 340 of the KUHP.

The Court considered that the element of ‘widespread’ was met, as the action was part of other violent attacks that caused material, immaterial, horrifying loss. As the attacking militias were pro-integration groups and the attack was a furtherance of the pro-integration organization’s policy, the Court also considered the ‘systematic’ was met.

The Court next considered the element ‘aimed directly at civilians’, and considered this element was met, since it was obvious the refugees in the church were civilians, as they consisted of children, babies, women, nuns and priests, and they were unarmed. The last element, that the action was murder as contained in Article 340 KUHP, was also considered fulfilled, since there was a sense of planning and deliberation before the attack that caused the deaths. 

The Court considered the command responsibility of the accused while answering the question whether or not they were responsible for the grave human rights violations (crimes against humanity).

The Court held that Herman Sedyono, although he was a military officer, he was in function as the head of government and therefore had no capacity to “act as a military commander or the person who effectively act as military commander.” The same goes for Gatot Subyaktoro, a police officer, who “was not a military commander, and had no authority to control troops under his effective command; therefore the defendant was not a military commander and not a person who effectively act as a military commander.” Therefore Sedyono and Subyaktoro did not fulfil the element of command responsibility of “a military commander or a person who effectively act as a military commander”.

According to the Court, Lilik Kushardianto, Ahmad Syamsuddin and Sugito did have effective authority and control on their subordinates and were military commanders or effective military commanders.

The Court then considered whether or not the militia groups Laksaur and Mahihi, that committed the crimes against humanity in the form of murder on the Suai church, were under the effective command and control of the accused, or under their effective authority and control.

The Court concluded that there was no evidence that indicated the existence of a subordinate relationship or a command relationship with effective control between the militias and the accused. Therefore, the accused “are not responsible for the grave human rights violations.”

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Further analysis

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Instruments cited

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Related cases

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Additional materials