The General Prosecutor v. Joni Marques, Manuel de Costa, Joao da Costa, Paolo da Costa, Amelio da Costa, Hilario da Silva, Gonsalo Dos Santos, Alarico Fernandes, Mautersa Monis and Gilberto Fernandes

Court	Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number	09/2000
Decision title	Judgement
Decision date	11 December 2001
Parties	General Prosecutor Joni Marques Manuel Da Costa Joao Da Costa alias Lemorai Paolo Da Costa Amelio Da Costa Hilario Da Silva Gonsalo Dos Santos Alarico Fernandes Mautersa Monis Gilberto Fernandes
Other names	Los Palos Case
Categories	Crimes against humanity
Keywords	crimes against humanity, deportation, Murder, persecution, torture
Links	Judgement: Part 1 Judgement: Part 2 Judgement: Part 3 Judgement: Part 4 Judgement: Part 5 Judgement: Part 6
Other countries involved	Indonesia

Summary

From 1975 until 2002, Indonesia illegally occupied East Timor. Members of the Indonesian Armed Forces worked together with local pro-autonomy militia groups to perpetrate a campaign of violence against the civilian population, particularly against those perceived to be independence supporters.

The ten accused in the present case were all members of or otherwise affiliated with the pro-autonomy Team Alpha militia group. In 1999, they directed a number of attacks against the civilian population including the torture of one individual, the shooting of a car full of civilians including nuns and journalists, as well as the burning down of civilian homes and the transfer of the population to refugee bases or to West Timor.

The Special Panels convicted all of the Accused for various crimes against humanity and handed down sentences that ranged from 33 years and 4 months’ imprisonment to 4 years’ imprisonment, depending on the degree of the Accused’s involvement in the crimes. It was the first case before the Special Panels to involve crimes against humanity.

Procedural history

On 11 December 2000, the General Prosecutor indicted the ten Accused and one other individual, Syaful Anwar, for multiple counts of crimes against humanity. On 16 February 2001, the Special Panels decided to separate the case of Syaful Anwar from that of his co-Accused on the grounds that he was still currently at large.

On 6 March 2001, the Prosecutor submitted an amended indictment in which the Accused are charged with four counts of murder, one count of torture, one count of deportation, and one count of persecution as crimes against humanity.

The preliminary hearing was held on 6 March 2001. Eight of the ten Accused made a statement to the Panels in which they admitted some level of involvement in the crimes charged. However, all claimed they were acting under orders. There were no guilty pleas.

The trial commenced on 9 July 2001 and concluded with the Defence closing statements on 8 November 2001.

Related developments

On 9 May 2005 the sentences of Joni Marques, Joao da Costa and Paulo da Costa were reduced by Presidential Decree to 25 years’ imprisonment. On 21 June 2002, Alarico Fernandes was granted conditional release after serving 2/3 of his sentence. On 28 February 2003, Gilberto Fernandes was released after serving 2/3 of his sentence.

On 13 March 2002, Gilberto Fernandes was re-arested for another alleged crime in 1999 but was conditionally released. He was later sentenced to one and a half years imprisonment for violence against property. See‘East Timor Crimes Against Humanity Perpetrator Released, Recaptured and Released Again’, Judicial System Monitoring Programme, 18 March 2003; and The Prosecutor v. Inacio Olivera, Gilberto Fernandes & Jose Da Costa, Case No. 12a/2002, Judgment of 23 February 2004 .

On 11 September 2003, Mautersa Monis was granted conditional release after serving 2/3 of his sentence.

Legally relevant facts

The Accused are all members of or affiliated with the pro-autonomy Team Alpha militia group (paras. 797, 804, 819, 827)

Members of the Team Alpha militia, including Joao da Costa, Mautersa Monis and Gilberto Fernandes, set up a roadblock for the purposes of targeting Evaristo Lopes, a clandestine member of the pro-independence group Forcas Armadas de Libertacao Nacional de Timor Leste (FALINTIL) (para. 692). The car in which Lopes was travelling was stopped and he was forcibly removed and beaten (para. 693). He was then taken to a room in which he was beaten again in presence of all Joao da Costa, Monis, Fernandes and Joni Marques and by them also, after which he was stabbed to death (paras. 695-696, 699).

Team Alpha members including Marques, Paulo Da Costa, Fernandes and dos Santos, went to the village of Leuro armed with rifles, machetes, swords and kerosene. Homes were burned down, particularly those who were suspected of being independence supporters (paras. 769-770). Villagers were forcibly transferred to the refugee camp and they were beaten if they refused to go (para. 774).

Team Alpha members Joni Marques and Paulo Da Costa also shot and killed two victims in late September 1999 (para. 890), both of whom were FALINTIL supporters (para. 900).

Similarly, a group of Team Alpha members including Joni Marques, Manuel Da Costa, Joao Da Costa, Paulo Da Costa, Amelio Da Costa, Hilario Da Silva and Gonsalo dos Santos, ambushed a vehicle at a roadbloack containing some clergy, a journalisy and other laypersons. The passengers were all killed (paras. 915-916).

Core legal questions

Is there a policy requirement for crimes against humanity?
What are the legal requirements for deportation as a crime against humanity, absent guidance in UNTAET Regulation 2000/15?

Specific legal rules and provisions

Section 5.1 (a), (d), (e) of UNTAET Regulation 2000/15.

Court's holding and analysis

A crime against humanity is bound to a policy context, which requires that a widespread or systematic attack results from a State or de facto power by means of the policy of that entity. The State or organisation which exercises the highest de facto authority in a given territory at the relevant time must control all the other holders of power and all individuals (para. 639). The perpetrator must have knowingly taken the risk of participating in the implementation of the policy upheld by the State or organisation (para. 642).

Having regard for the rules of the draft Statute of the International Criminal Court, the Second Additional Protocol to the 1949 Geneva Conventions, the Panel is satisfied that the elements of deportation as a crime against humanity are as follows:

The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.

Such person or persons were lawfully present in the area from which they were deported or transferred.

The perpetrator was aware of the factual circumstance that established the lawfulness of such presence.

The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population (paras. 650-655).

The Accused were sentenced to terms of imprisonment ranging from 33 years and 4 months for Joni Marques, Joao Da Costa and Paulo Da Costa (paras. 1123, 1125-1126) to 4 years’ imprisonment for Alarico Fernandes and Mautersa Monis (paras. 1130-1131). The remainder received sentences within this range (paras. 1124, 1127-1129, 1132).