The Deputy Prosecutor General for Serious Crimes v. Agostinho Cloe, Aghostinho Cab, Lazarus Fuli and Antonio Lelan

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	4/2003
Decision title	Judgement
Decision date	16 November 2004
Parties	The Deputy Prosecutor General for Serious Crimes Agostinho Cloe Aghostinho Cab Lazarus Fuli Antonio Lelan
Categories	Crimes against humanity, Torture
Keywords	crimes against humanity, Murder, other inhumane acts, torture
Links	Judgement

Summary

Indonesia had illegally occupied East Timor since 1975 in a climate of tension between the Indonesian’s who favoured continued occupation and the Timorese who favoured independence. Following the referendum of 1999 in which an overwhelming majority of Timorese voted in favour of independence, hostilities escalated between the Indonesian Armed Forces and associated militias, and the independence supporters.

In the context of these hostilities, the Accused (all members of the Sakunar militia) killed two independence supporters – one was attacked with a machete and the other was beaten to death. A third was also severely beaten in plain view of his entire village.

The Special Panels for Serious Crimes convicted all the Accused for the crimes against humanity of murder and other inhumane acts; Cab, Fuli and Lelan were sentenced to 5 years’ imprisonment, Cloe to 4 years. At sentencing, the Court considered that the Accused were victims of the circumstances themselves and attributed responsibility to the Indonesian Armed Forces who pitted local populations against each other in order to secure their power over the Timorese.

Procedural history

On 15 February 2003, the Prosecutor indicted Cloe, Cab, Fuli, Lelan and three others on charges of crimes against humanity, specifically murder and torture. On 11 March 2004, the Court requested the Prosecution to amend the indictment as it did not consider that the facts alleged sufficiently supported the charge of torture. The Prosecution amended the charges by replacing the count of torture with a count of other inhumane acts.

A preliminary hearing was held on 24 October 2003 during which time the Defense Counsels of several of the accused intimated that their clients might plead guilty.

The trial hearing commenced on 22 October 2003. Several of the Accused pleaded guilty; others did not. The Court separated the cases in order to assist it in the conduct of the trial.

Legally relevant facts

The Accused were members of the Sakunar militia, that was organised and controlled by the Armed Forces of the Republic of Indonesia. The latter had illegally occupied East Timor since 1975 despite East Timor’s declaration of independence. The militia, along with the Indonesian armed forces was intended to terrorise members of the civilian population suspected of being independence supporters (para. 10).

On 16 September 1999, the Accused were ordered to attack three East Timorese civilians suspected of being independence supporters. Cab shot an arrow into one of the victims’ throats and hit him on the head with a stone, resulting in death. Cloe, Fuli and Lelan led another victim behind his house, subsequent to which Fuli and Lelan attacked the second victim with a machete and knife, resulting in death. Finally, Cloe and Fuli severely beat and kicked a third victim for approximately half an hour in view of other villagers (para. 10).

Core legal questions

Does co-perpetration as a mode of liability require that the accused inflicted some of the wounds himself or that death was caused as a result of the wounds inflicted by the accused?
Would a conviction for the crime against humanity of murder violate the principle of nullum crimen sine lege due to the fact that Regulation 2000/15 criminalising the offense did not exist at the time of the commission of the alleged acts?
Are superior orders a defence to criminal responsibility?
Which mitigating and aggravating circumstances may be taken into consideration at sentencing?

Specific legal rules and provisions

Section 5.1(a) of UNTAET Regulation 2000/15.
Section 9.1 of the Constitution of East Timor.

Court's holding and analysis

To establish co-perpetration, it suffices that the accused acted purposely in collaboration, even if a certain accused did not inflict a wound himself. There is no need for the Court to determine whether death would have been caused solely by the wounds inflicted by a certain accused (para. 12).

The offense of murder as a crime against humanity is a crime under customary international law that has been criminalised for more than half a century. Consequently, the non-existence of Regulation 2000/15 at the time of commission of the criminal acts would not render a conviction for this offence a violation of the principle of nullum crimen sine lege as customary law is as much law as written law (paras. 13-14).

Superior orders is no defence to the individual criminal responsibility of the Accused; it may only be taken into consideration as a mitigating factor at sentencing (para. 16).

Aggravating factors taken into consideration include the brutality and callousness with which the crimes were committed, and that the victims were fellow countrymen of the Accused. Mitigating circumstances include obeying superior orders, and that the Accused were victims of the circumstances themselves, as the hostilities were driven by the Indonesian armed forces (para.20).

Cab, Fuli and Lelan were sentenced to five years’ imprisonment; Cloe to four years.