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(Photo provided courtesy of the American University Washington College of Law, War Crimes Research Office)

(Photo provided courtesy of the American University Washington College of Law, War Crimes Research Office)

The Deputy Prosecutor-General for Serious Crimes v. Anton Lelan Sufa

Court Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number 4a/2003
Decision title Judgement
Decision date 25 November 2004
Parties
  • The Deputy Prosecutor-General for Serious Crimes
  • Anton Lelan Sufa
Categories Crimes against humanity
Keywords crimes against humanity, Murder, other inhumane acts
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Summary

Indonesia had illegally occupied East Timor since 1975 despite the will of the Timorese to gain independence. The Indonesian Armed Forces, together with a number of militia groups, carried out a nationwide campaign intended to terrorise and punish independence supporters.

The Accused was the leader of the Sakunar militia group for the village of Bebo. In this capacity, he ordered the deaths of two suspected independence supporters and requested that the ear of the second victim be brought back to him as proof. He additionally participated in the beating of a third victim. He pleaded guilty to the charges of murder and other inhumane acts as a crime against humanity. The Court sentenced him to 7 years’ imprisonment finding him liable for failure to prevent his subordinates’ crimes, for ordering the commission of such crimes and for jointly committing one crime, the beating. 

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Procedural history

On 15 February 2003, the Prosecutor indicted Sufa and seven 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; the final indictment was issued on the 23rd of July 2004.

After the Accused did not plead guilty to the charges, the Court severed his case from those of the other individuals indicted by the Prosecution on 25 October 2004. The Accused eventually pleaded guilty following witness testimonies; the Court sentenced him on 25 November 2004.

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Legally relevant facts

The Accused was a member of the Sakunar militia group, organised and controlled by the Armed Forces of the Republic of Indonesia, which had been illegally occupying East Timor since 1975. The purpose of the militia was to terrorise civilians suspected of being independence supporters (para. 12).

The Accused was the leader of the militia group for the village of Bebo. On 16 September 1999, he ordered members of the militia under his command to kill two suspected independence supporters and, as proof, to cut off an ear and bring it back to him. He further ordered and participated in the beating of a third victim, who he eventually determined was to be released (para. 12).

The acts formed part of a country-wide campaign of violence organised and controlled by the Indonesian Armed Forces to intimidate and punish independence supporters (para. 13).

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Core legal questions

  • Where an Accused is convicted on the basis of superior liability and individual liability for directly committing an act, are both forms of liability to be retained?
  • 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?

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Specific legal rules and provisions

  • Sections 5.1(a), 14.3(a),(b) and 16 of UNTAET Regulation 2000/15.
  • Article 65.2 of the Penal Code of Indonesia.
  • Section 9.1 of the Constitution of East Timor.

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Court's holding and analysis

In the event that an Accused is found liable concurrently on the basis of superior responsibility and individual criminal responsibility, the Court must determine whether both forms continue to co-exist or whether one is displaced by the other (para. 21). Following a review of legal instruments of civil law jurisdictions, as well as international criminal law, the Court held that the relationship between the different modes of liability is governed according to a hierarchy: the more indirect form of responsibility incurred is subsidiary to a more direct one (para. 22).

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 (para. 25).

The Accused was found liable as a superior for failure to prevent the crimes carried out by his subordinates and for failing to punish them; he was also individually responsible for ordering the commission of such crimes and jointly responsible for committing the crime against humanity of other inhumane acts (para. 30).

The Court sentenced the Accused to 7 years’ imprisonment (para. 38).

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Further analysis

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Instruments cited

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Related cases

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Additional materials