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(Source picture: Wikipedia)

(Source picture: Wikipedia)

The Deputy Prosecutor-General for Serious Crimes v. Lino Beno

Court Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number 4b/2003
Decision title Judgement
Decision date 16 November 2004
Parties
  • The Deputy Prosecutor-General for Serious Crimes
  • Lino Beno
Categories Crimes against humanity
Links
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Summary

Indonesia had illegally occupied East Timor since 1975 in a climate of tension between the Indonesians 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 (a member of the Sakunar militia) intentionally stabbed one victim and severely beat another victim who was tied to a tree in plain view of other villagers. The Accused pleaded guilty to both charges and the Court sentenced him to 5 years’ imprisonment. His defence, that he was coerced into committing the crimes due to a fear of his superiors, failed to convince the Court, as he was not in imminent danger of death.

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Procedural history

On 15 February 2003, the Prosecutor indicted Beno 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 Accused pleaded guilty to the charge of other inhumane act as a crime against humanity. On 27 October 2004, the Court severed his case from that of the other individuals indicted by the Prosecutor. Following witness testimony from other militia members present at the crime, the Accused also pleaded guilty to the charge of murder.

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Legally relevant facts

At the time of the crimes, the Accused was a member of the Sakunar militia group, which was controlled and organised by the Armed Forces od the Repuvlic of Indonesia. Timor-Leste had been illegally occupied by Indonesia since 1975 and sought, through its armed forces and militia groups under its control, to terrorise and opress civilians suspected of being independence supporters (para. 10).

On 16 September 1999, the Accused together with two other members of the militia, acting upon an order of the leader of the militia group for a Timorese village, intentionally stabbed one victim (who later died from his injuries) and severaly beat and kicked another victim for approximately half an hour in front of other villagers (para. 10).

The acts were committed in the context of a country-wide campaign organised by the Indonesian Armed Forces to intimidate and punish independence supporters (para. 11).

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Core legal questions

  • 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?
  • What is the mens rea requirement for the crime against humanity of murder?
  • Are the requirements for the defence of coercion satisfied where the Accused acted out of a fear of his superiors?
  • What is the requisite threshold for the offense of other inhumane acts as crimes against humanity?

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Specific legal rules and provisions

  • Sections 5.1(a), 14.3(a) and 19.1(d) of UNTAET Regulation 2000/15.
  • Section 9.1 of the Constitution of East Timor.

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Court's holding and analysis

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).

Unlike the offense of murder under the national law of most countries, the crime against humanity of murder does not require deliberate intent or premeditation. It suffices that the perpetrator intended to cause grievous bodily harm with the knowledge that it was likely to cause death (para. 14).

Coercion requires that the Accused be under an imminent threat of death; fear of his superiors and the orders received by them does not suffice (para. 16).

The offense of other inhumane acts requires the deliberate causing of serious physical suffering of comparable gravity to other crimes against humanity (para. 18).

The Court sentenced the Accused to 5 years’ imprisonment (para. 24).

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Further analysis

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Instruments cited

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Related cases

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Additional materials