The Ad Hoc Public Prosecutor v. Adam Damiri

Court	The Indonesian Ad Hoc Tribunal for East Timor, Indonesia
Case number	No. 09/PID.HAM/AD.HOC/2002/PH.JKT/PST
Decision title	Judgement
Decision date	31 July 2003
Parties	Adam Rahmat Damiri The Ad Hoc Public Prosecutor
Other names	Damiri case
Categories	Human rights violations
Keywords	persecution, command responsibility, crimes against humanity
Links	Judgement

Summary

The Ad Hoc Tribunal found the defendant guilty of grave human rights violations in the form of crimes against humanity and sentenced him to three years of imprisonment. Adam Damiri was the most senior and last of 18 military men and civilians to be brought before the Indonesian Ad Hoc Tribunal, which has sentenced only six of the 18, none of whom served any time in prison as part of their sentences. Damiri’s verdict effectively brought the Indonesian Ad Hoc Tribunal to a close.

The judgement was deemed rather controversial by many human rights organizations. Firstly, because of what was considered a lenient judgment entered against the defendant, and secondly, the subsequent overturning of the judgment and the release of the defendant one year later. Human Rights Watch repeatedly requested that UN Secretary-General Kofi Annan commission a report by a group of experts to review the work of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR) and that of the Ad Hoc Tribunal regarding the situation in East Timor in 1999.

The rulings of the Ad Hoc Tribunal were also deemed as sign that there was a lack of political will in Indonesia to holds its highest military servicemen accountable for their actions under international humanitarian law. Indonesia has also been heavily criticised for allowing a convicted human rights abuser - though this judgment was later overturned - to be involved in yet another conflict, after Damiri was re-assigned to another province of Indonesia in order to fight another secessionist movement.

Procedural history

On 1 July 2002, the Indonesian Human Rights Court on East Timor indicted the defendant for crimes against humanity in relation to the massacres in Liquica (6 April 1999), in Dili private houses of Leandro Isaac and Manuel Carrascalao (17 April 1999), at Dili Diocese (5 September 1999), at Bishop Belo’s house in Dili (6 September 1999), and at Suai church (6 September1999). There were two main charges against the defendant following the 1 July 2002 indictments, namely:

Murder as a crime against humanity in violation of art. 9(a) of Law 26 of 2000, using art. 42(1) military command responsibility; and
Assault as a crime against humanity in violation of art. 9(h) of Law 26 of 2000, using article 42(1) military command responsibility.

During his trial, the defendant was running the military offensive in western Aceh province, an Indonesian province requiring independence. This forced the Ad Hoc Tribunal to postpone four sessions because the defendant could not attend, due to his duties in relation to the organisation of the Indonesian’s army offensive against the separatist rebels in the province of Aceh.

The Ad Hoc Tribunal has delivered judgements in other cases regarding the violence in East Timor in 1999, including the ones of Eurico Guterres, Asep Kuswani, Endar Priyanto, Herman Seduono et al., Timbul Silaen, Abilio Jose Osorio Soares, Letkol Inf. Soedjarwo, Yayat Sudrajat and Tono Suratman.

Related developments

In 2003, the UN Serious Crimes Unit, in a joint indictment with East Timorese authorities at the Dili District Court in East Timor, indicted the defendant on three counts of crimes against humanity, namely, murder, persecution, and deportation. Nevertheless, the Indonesian government has refused to extradite its citizens to any UN-backed courts in Dili. In February 2003, the defendant was charged in absentia with crimes against humanity before the Dili special panel.

In 2004, the defendant was acquitted and continued with his obligations as the chief of operations for the Indonesian military. In 2007, the defendant testified before the Commission on Truth and Friendship and declared that the violence in East Timor was the sole responsibility of the United Nations Mission in East Timor (UNAMET) (in Indonesian).

Adam Damiri is now retired.

Legally relevant facts

The defendant held the rank of Major General as the military chief operations officer, i.e. Military Territorial Commander (PANGDAM), in East Timor between 15 June 1998 and 27 November 1999, during the violence that arose out of the Indonesian province of East Timor’s independence referendum.

At the time of the violence, several armed groups were active within the area of responsibility (AoR) of the defendant, such as the Indonesian National Armed Froces (TNI in Indonesian), as well as several pro-Indonesian militias, including Aitarak (pg. 5), Besi Merah Putih (pg. 8), Laksaur (p. 25) and Mahidi (p. 52).

Core legal questions

The core legal question was whether the defendant was responsible for the series of attacks on civilians committed by his subordinates in April and September 1999 in East Timor.
Another important question was whether the defendant knew, or based on the situation at the time, should have known that some of its subordinates on duty in East Timor had committed grave human rights violations, but did not try to prevent or stop them, or to hand over the perpetrators to the higher authorities for the purpose of examinations, investigations and indictments (p. 3).
In addition, the Indonesian Ad Hoc Tribunal also had to determine whether the guilt of the Defendant had “not been legally and convincingly proven” (pg. 3, charge no. 4).

Specific legal rules and provisions

Articles 7 (gross violations of human rights), 8 (the crime of genocide), 26 (oaths taken by ad hoc investigators and ad hoc Public Prosecutors), 37 (sentencing regarding actions referred to in art. 9, letter a, b, d, e, or j) and 42 (command responsibility, making a reference to art. 28 of the Statute of the ICC) of Law No. 26 of 2000 establishing the Ad Hoc Human Rights Court.
Article 8 (procedure for grave human rights violations), 162 (absence of witness during trials), 183 (determination of guilt), 184 (legal means of proof), 185 (testimony of a witness as a means of proof), 187 (documents made under an oath of office or strengthened by an oath) and 188 (indications) of The Law of Criminal Procedure (KUHAP, in Indonesian only):
Articles 86 and 87 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I).

Court's holding and analysis

The Ad Hoc Tribunal found that the defendant “has been legitimately and convincingly proven guilty” of grave human rights violations in the form of crimes against humanity (pg. 125) and sentenced the defendant to three years of imprisonment. In addition, the defendant was also sentenced to pay the financial charge of the tribunal of five thousands rupiahs (Rp. 5,000). In arriving at its conclusion, the Ad Hoc Tribunal referred to the ICTR’s Jean Paul Akayesu case regarding the systematic and patterned actions based on the policies involving public as well as private resources (pp. 111 and 119), and ICTY’s Tihomir Blaškic case regarding the systematic elements referred to the four elements required for the establishment of a government policy (pg. 111).

The Ad Hoc Tribunal also found that the defendant was the effective commander who had to be responsible over the crime under the jurisdiction of the Human Rights Court committed by the troops under his effective command and control (pg. 118) and found that members of the TNI under his effective command and control have been involved both actively and passively in the violence (pg. 121).

The Ad Hoc Tribunal also found the two required elements to be present, namely: 1. Actus reus (the lack of adequate actions by the defendant in the face of his knowledge of human rights violations committed by his subordinates, pg. 123); and 2. Mens rea (judging by the defendant’s knowledge over the crimes committed by his subordinates without his adequate actions, pg. 123).

Further analysis

R. Huang & G.C. Gunn, ‘Reconciliation as State-Building in East Timor’ (2004) Lusotopie, pp. 19-38 (Adam Damiri discussed on pages 5 and 6);
The Indonesian Ad Hoc Tribunal for East Timor, Indonesian Judges Seminar on International Humanitarian Law, U.C. Berkeley War Crimes Studies Center, 1-12 September 2003.