skip navigation

(Source picture: Wikipedia)

(Source picture: Wikipedia)

The Prosecutor v. Jose Cardoso

Court Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number 04c/2001
Decision title Judgement
Decision date 5 April 2003
Parties
  • The Public Prosecutor
  • Jose Cardoso alias Mouzinho
Categories Crimes against humanity
Keywords crimes against humanity, imprisonment, Murder, other inhumane acts, persecution, rape, torture
Links
Other countries involved
  • Indonesia
back to top

Summary

The Indonesian occupation of East Timor from 1975 until 2002 gave rise to a number of attacks on the Timorese civilian population, particularly against those suspected of being independence supporters.

The Accused, Jose Cardoso, was the Deputy Commander and subsequently the Commander of the pro-autonomy militia group Kaer Metin Merah Putih (KMMP). From May until September 1999, he issued a number of orders to attack both known and suspected independence supporters. These individuals were arrested, beaten and detained for months in cramped and extremely unhygienic conditions without regular access to food or water. One victim had his eat cut off and force fed to him on orders of the Accused. Two women were raped by the Accused. Two other individuals were murdered as a result of the Accused’s orders.

Cardoso was convicted for 9 counts of crimes against humanity by the Special Panels for Serious Crimes and sentenced to 12 years’ imprisonment.

back to top

Procedural history

On 6 February 2001, the Public Prosecutor indicted the Accused, Jose Cardoso, and four other individuals for 27 counts of crimes against humanity. The Accused was charged with fourteen counts.

On 6 April 2001, the Special Panel decided to separate the charges against two of the co-Accused. On 25 May 2001, the Public Prosecutor filed an amended indictment against the Accused and two other individuals. The Accused was charged with: four counts of unlawful deprivation of physical liberty as a crime against humanity, one count of torture as a crime against humanity, two counts of other inhumane acts as a crime against humanity, one count of rape as a crime against humanity, four counts of murder as a crime against humanity, and one count of persecution as a crime against humanity.

The trial commenced on 5 March 2002.

The case of the Accused was separated from that of his co-Accused after the latter entered guilty pleas on 21 October 2002 and on 11 November 2002.

On 19 February 2003, the Prosecutor withdrew the charge of persecution. 

back to top

Legally relevant facts

The Accused was the Deputy Commander and later the Commander of the Kaer Metin Merah Putih militia (KMMP) (para. 330).

In May 1999, members of the KMMP acting on the orders of the Accused proceeded to interrogate, beat and detain a number of pro-independence supporters. Benedito da Costa and his wide were beaten and then detained at the KORAMIL (para. 338); Adao Manuel was interrogated and severely beaten at the KORAMIL (para. 341); Mario Gonsalves was beaten, his ear was cut off and fed to him (para. 342); Jose Gouveia Leite was beaten and detained (para. 344) as were Aureau Cardoso, who was detained with her two children (para. 345), Herminio da Graca (para. 346), Mariana da Cunha (para. 347) and Victims A, B and C (para. 349). Victims A, B and C were also raped by the Accused and two other KMMP members (paras. 430–434).

Detainees were locked in small rooms without proper sanitation facilities. They were subjected to extremely unhygienic conditions and were not provided with regular access to food or water (para. 360).

In September 1999, the Accused and other KMMP members attacked the farm of Herminio Belo, expecting to find independence supporters. As a result of the gunshots and the orders made by the Accused, two victims died in the attack (para. 472).

back to top

Core legal questions

  • What are the elements for joint criminal enterprise (JCE) as a mode of liability pursuant to section 14.3(a) of UNTAET Regulation 2000/15?
  • What are the elements of the crime against humanity of rape?

back to top

Specific legal rules and provisions

  • Sections 1.3, 5.1(a),(d),(e),(f),(g),(i) and 14.3(a) of UNTAET Regulation 2000/15.

back to top

Court's holding and analysis

JCE as a mode of liability requires the existence of a plurality of persons, the existence of a common plan which amounts to or involves the commission of a crime provided for in the Statute, and participation of the accused in the common plan (para. 369). The Special Panels found that the Accused, along with other KMMP members, actively participated in a common plan to arrest and detain those perceived to be independence supporters. The Accused participated by rounding up the victims, arresting, beating and interrogating them (para. 371).

Having examined case law of international criminal tribunals, the Statute of the International Criminal Court and commentaries by academics (paras. 440-448), the Special Panels concluded that the absence of consent is the central element. Force need not require the demonstration of the perpetrator physically overpowering the victim; it may be possible to derive force from the context in which the rape occurred (para. 449). Additionally, the chapeau requirements for crimes against humanity must also be satisfied (para. 451).

The Accused was convicted for four counts of unlawful deprivation of physical liberty as a crime against humanity, one count of torture as a crime against humanity, one count of other inhumane acts as a crime against humanity, one count of rape as a crime against humanity and two counts of murder as a crime against humanity (paras. 523-524). He was sentenced to 12 years’ imprisonment (para. 542).

back to top

Further analysis

back to top

Instruments cited

back to top

Related cases

back to top

Additional materials

back to top

Social media links