The Prosecutor v. Marcelino Soares

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	11/2003
Decision title	Judgement
Decision date	11 December 2003
Parties	The Prosecutor Marcelino Soares
Categories	Crimes against humanity
Keywords	crimes against humanity, Murder, persecution, torture
Links	Judgement
Other countries involved	Indonesia

Summary

East Timor was occupied by Indonesia from 1975 until it achieved independence in 2002. Throughout this time, the Indonesian Armed Force (TNI) and numerous militia groups perpetrated a nationwide campaign to terrorise the civilian population, particularly independence supporters.

Soares was a village-level commander in the TNI, in command of Timorese members of the TNI. In April 1999, he and other TNI members encountered a group of anti-resistance supporters. The three that did not manage to escape were taken away on the orders of Soares and repeatedly beaten with iron bars, machetes and knives and burned with hot belt buckles. One victim died, a second succeeded in escaping, and a third was released following the intervention of a family member. Soares was convicted of the crimes against humanity of murder, torture and persecution and sentenced to 11 years’ imprisonment. His was the first trial of a TNI member by the Special Panels for Serious Crimes.

Procedural history

The Accused was indicted by the Prosecutor on 28 February 2001 for the crimes against humanity of murder, torture and persecution. The trial hearing commenced on 7 August 2003 and concluded with the delivery of the Court’s verdict on 11 December 2003.

Related developments

Marcelino Soares appealed his conviction, but on 17 February 2005 the Court of Appeal affirmed the first instance judgment.

Legally relevant facts

Indonesia had illegally occupied East Timor since 1975, despite the latter’s declaration of independence. In 1999, the Accused was a village level commander in the Indonesian Armed Forces with command and control over Timorese members of the same armed forces (para. 5).

On 20 April 1999, members of a resistance group against Indonesian occupation were encountered by members of the Indonesian Armed Forces, including the Accused, as they came to collect food and supplies from pro-independence sympathisers. Three members of the group were arrested. On the Accused’s orders, the men were taken away, detained, interrogated and mal-treated including being beaten with solid iron bars, machetes and knives. The first victim died, the second escaped and the third was released following an intervention by his relative (para. 5).

The Accused at no point intervened or punished his subordinates for their behaviour. The Accused knew that neither he nor his subordinates were entitled to arrest, detain or injure independence supporters (para. 6).

Core legal questions

Does the intervention by the Indonesian members of the Indonesian Armed Forces (not under the command of the Accused) who continued to beat and injure the first victim until his death sever the chain of causality so that death was not the result of the earlier beatings by the Timorese members of the Indonesian armed forces (under the command of the Accused)?
Does the absence of a systematic or widespread attack against the civilian population at the location of the crimes during the month in which they were committed exclude a conviction for crimes against humanity as the chapeau requirement would not be satisfied?
Would a conviction of the Accused for the crime against humanity of murder, as criminalised in section 5.1(a) of UNTAET Regulation 2000/15, violate the principle of nullum crimen sine lege as the offence was not criminalised in the Regulation at the time of the commission of the alleged acts?

Specific legal rules and provisions

Sections 5.1(a),(f),(h) and 5.2(f) of UNTAET Regulation 2000/15.
Section 9.1 of the Constitution of the Republic of East Timor.

Court's holding and analysis

The amount and severity of the wounds inflicted by the Timorese members of the Indonesian Armed Forces who acted under the command of the Accused were a substantial cause for the death of the first victim. Thus, the wounds inflicted later by the Indonesian members of the Indonesian Armed Forces not under the command of the Accused are not of a nature to sever the chain of cause and effect (para. 12).

That there was no systematic or widespread attack on the civilian population in the town of Hera in the month of April 1999 (the location and time of the crimes) is irrelevant. Following the established jurisprudence of the International Criminal Tribunal for former Yugoslavia, it suffices that the act is part of a nation-wide campaign against civilians (para. 15).

The fact that Regulation 2000/15 did not exist at the time of commission of the criminal act is irrelevant as the crime against humanity of murder has been a part of customary international law for more than half a century. Unwritten customary law is law just as written law, recognised by the Timorese Constitution (paras. 16-17).

The Court convicted the Accused of the crimes against humanity of murder, torture and persecution and sentenced the Accused to 11 years’ imprisonment (para. 14).