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Indonesia illegally occupied East Timor from 1975 until 2002. During that time, members of the Indonesian Armed Forces and pro-autonomy militia groups perpetrated a number of attacks against the civilian population, particularly against those believed to be independence supporters.

In September 1999, the Accused, Manuel Goncalves Leto Bere, was a member of the Dadurus Merah Putih pro-autonomy militia group. Whilst in West Timor, he was ordered by the militia chief to arrest Joao Gonsalves, a known independence supporter. Gonsalves was arrested and then driven to a river by the Accused and other individuals, including members of the Indonesian Armed Forces (TNI) who often worked with the militia groups, to a river. Once there, the Accused stabbed Goncalves in the chest with his samurai sword immediately killing him. He was convicted of murder and sentenced to 14 years’ imprisonment. 

In the first appeals judgment from a case before the Special Panels for Serious Crimes, the Court of Appeal of East Timor was seized by Joao Fernandez, a member of the Dadurus Merah militia group, which operated in East Timor during Indonesia’s occupation of the latter. Fernandez had been convicted by the Special Panels and sentenced to 12 years’ imprisonment for murder after he pleaded guilty to stabbing a village chief twice in the back with his samurai sword until the chief died.

On appeal, he argued that the fact that he was acting on the orders of the militia chief and the Indonesian Armed Forces should have secured his acquittal before the Special Panels. The Court of Appeal dismissed the appeal finding that, on the basis of the proven facts, Fernandez did intentionally and with premeditation murder the village chief. The Indonesian Penal Code does not provide that superior orders may exclude criminal responsibility, unless those orders were given by a competent authority. Neither the militia chief nor the Indonesian Armed Forces had the legal competence to order the killing of individuals, nor was Fernandez under a legal obligation to follow those orders. The Court of Appeal also upheld his sentence. 

Timbul Silaen worked as police chief in East Timor in 1999. As such, he was responsible for the security during the independence referendum held in the country on 30 August 1999. Before and after the referendum deadly incidents took place between people in favour of East Timor’s secession from the Republic of Indonesia and the pro-Indonesian supporters. Approximately 1000 people died, 80% of the territory was destroyed, and 250,000 people were forcibly evacuated to Indonesia.

Silaen was prosecuted because as a commander he allegedly failed to stop his subordinates from committing crimes and also failed to bring them to court in order to be prosecuted. In 2002, the Indonesian Ad Hoc Tribunal for East Timor did not found Silaen guilty as a commander because it could not be proven beyond a reasonable doubt that his subordinates had committed the crimes.

The case encompasses the persecution of Bosnian Muslims, Bosnian Croats and other non-Serbs in 37 municipalities of Bosnia and Herzegovina in 1992, and the role played by Biljana Plavšić therein, as a high level political figure. On 2 October 2002, Plavšić pleaded guilty to the crime against humanity of persecutions and the Trial Chamber found him guilty accordingly. 

In order to determine the appropriate sentence for Biljana Plavšić, the Trial Chamber balanced the gravity of the crimes as well as the aggravating and mitigating circumstances. 

With respect to the gravity of the crimes, the Trial Chamber attached weight to the massive scope and extent of the persecutions; the numbers killed, deported and forcibly expelled; the grossly inhumane treatment of detainees; and the scope of the wanton destruction of property and religious buildings. 

Although the Trial Chamber accepted Biljana Plavšić’s superior position as an aggravating factor, it also took into consideration the following mitigating circumstance: Biljana Plavšić’s guilty plea (together with remorse and reconciliation); her voluntary surrender and post-conflict conduct; as well as her age of 72 years.

Balancing all these factors, the Trial Chamber determined that the appropriate sentence for Biljana Plavšić is 11 years’ imprisonment.

Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001 by members of the United States Armed Forces, he was transferred to the United States detention centre at Guantanamo Bay in 2002. By an order of the President of the United States, Hamdan was designated to stand trial before a United States Military Commission for charges of conspiracy to commit multiple offenses, including attacking civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. Hamdan’s counsel applied for a writ of habeas corpus alleging that the military commissions were unlawful and trial before them would violate Hamdan’s rights of access to a court.

In this decision, the Supreme Court reversed the decision of the Court of Appeal for the District of Columbia and held that Hamdan’s trial by military commission would be unlawful for a number of reasons: conspiracy, with which he is charged, is not a crime against the laws of war, the commissions do not conform to the requirements of the Uniform Code of Military Justice, nor with the rights guaranteed to Hamdan under the 1949 Geneva Conventions.