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Indonesia’s invasion of Timor-Leste in 1975 marked the beginning of almost 25 years of immense atrocities and human rights abuses, resulting in the deaths of nearly one third of the population of Timor-Leste from starvation, disease, and the use of napalm. Indonesia eventually withdrew in 1999 following international pressure; Timor-Leste achieved full independence in 2002. The Special Panels for Serious Crimes was established to prosecute persons responsible for the serious crimes committed in 1999, including genocide, war crimes, crimes against humanity, sexual offenses and torture.

The accused was a former farmer and a leader of the Sakunar militia group in the village of Naetuna. He was indicted for the murder of an independence supporter who was beaten and stabbed repeatedly on his orders as part of a raid carried out against a village housing such supporters. The accused pled guilty to the charge. The Special Panel, after establishing the facts of the case and the validity of the guilty plea, entered a sentence of 7 years’ imprisonment after considering that admitting to guilt merits a substantial reduction in the usual sentence handed out by Timorese courts for murder, which ranges from 12 to 16 years. 

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.

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. 

Post-apartheid South Africa continues to be faced with the difficult question on how to deal with past human rights violations. From 1999 until 2005, the South Africa Prosecution Authority attempted to have Wouter Basson convicted. Basson was head of the secret chemical and biological warfare project during the apartheid era. He was charged with a variety of crimes, including murder, fraud and dealing drugs. After several charges were dismissed and Basson was acquitted of all other charges, the prosecutor sought permission to appeal. The prosecutor argued that the trial judge should have stepped back from the case, as the prosecutor had accused him of being biased. Also, the prosecutor held that several charges should not have been dismissed and that the bail records should have been admitted during the trial proceedings. The Supreme Court of Appeal had denied this request, after which the prosecutor turned to the Constitutional Court.

In the preliminary ruling under review here, the Court refused to grant permission to appeal, although it did held that the issues raised by the prosecution were constitutional matters. Therefore, the Court ruled, these issues fell within the jurisdiction of the Constitutional Court.