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The Ad Hoc Prosecutor v. Asep Kuswani

Court The Indonesian Ad Hoc Tribunal for East Timor, Indonesia
Case number No. 06/PID.B/HAM.AD.HOC/2002/PN.JKT.PST.
Decision title Judgment
Decision date 28 November 2002
  • The Ad Hoc Prosecutor
  • Asep Kuswani
  • Adios Salova
  • Leoneto Martins
Other names
  • Asep Kuswani case
  • Kuswani et al. case
Categories Crimes against humanity
Keywords command responsibility, crimes against humanity
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The Ad Hoc Tribunal acquitted the three defendants of the charges entered against them and found that the prosecution had not been able to establish a link between the TNI (Indonesian National Armed Forces) and Polri (Resort Police of the Police of Republic of Indonesia), on the one hand, and the BMP, on the other. The former were official governmental bodies, whereas the latter were militia. The judgment was publicly criticized as it was argued that the TNI and the riot police were indeed involved in the violence, including the killing of the 22 civilians.

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Procedural history

The judgment was entered against three individuals, namely, Asep Kuswani, Adios Salova, and Leoneto Martins. In the temporary ruling of the Ad Hoc Tribunal in No. 06/Pid.B/HAM.Ad.Hoc/2002/PN.JKT.PST of 10 July 2002, it was ruled that the defendants have not been “proven to be legally and convincingly guilty” for crimes against humanity committed by their troops under their effective command and control under the command responsibility principle, but it found them to be proven “legally and convincingly guilty” for attempting, plotting and assisting the perpetration of crimes against humanity by the act of killing (p. 2). As a result, each defendant was sentenced to ten (10) years of imprisonment.

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Legally relevant facts

All of the three defendants were serving in the Liquisa Region, East Timor, on 5 April 1999, when the violence took place. The first defendant, Asep Kuswani, was Commander of Military District 1638 of the Indonesian National Armed Forces (TNI). The second defendant, Adios Salova, was Head of Resort Police of the Police of Republic of Indonesia (Polri). The third defendant, Leoneto Martins, was a bupati (regent).

On 5 April 1999, the defendants, in their professional capacity and commanding the TNI (Kuswani) and the Polri (Salova), surrounded the Church of Liquisa, followed and joined by members of Besi Merah Putih (BMP), a pro-Indonesian militia (p. 6). On 6 April 1999, some 300 members of BMP, led by Manuel Sousa, started to gather and surround Pastor Rafael Dos Santos’ residence in the church, and asked the refugees to leave the church (p. 3). Once the refugees left the residence, the members of BMP killed 22 civilians by “shooting with fire arms, constructed fire arms, stabbing with swords and samurai, releasing arrows, stabbing with knives and beating with other violent weapons” (p. 4). In addition to these 22 victims, 21 more were injured as they left the Church of Liquisa (p. 15). The killings were executed by members of the TNI and BMP.

According to defendant Kuswani, there was a “clash between Anti Integration group and Pro Integration group and attacking Pro Integration’s residential area” (p. 31). He also stated that he failed to prevent the actions undertaken by the BMP “due to the lack of law enforcement” (p. 32) and he claimed to have only heard of the BMP, rather than met them, before the incident.

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Core legal questions

The core legal question, regarding all three defendants, was whether they failed to take any appropriate actions to prevent or stop the attacks or to surrender the perpetrators to the authorities to carry out investigations and enter charges (p. 5). As a result of their official capacity, all of the defendants had the authority to investigate and were indeed legally responsible for the gross violations of human rights committed by their subordinates.

Another important legal question was whether the defendants, as effective military commanders, did not control their troops and/or subordinates, which are under their command and effective control (p. 12), as they all knew or should have known about the gross violations of human rights in which their troops and/or subordinates were involved.

The Ad Hoc Tribunal specifically addressed three important problems, namely:

  • Did a gross violation of human rights occur?
  • Who committed the violation?
  • Are the defendants responsible for the alleged gross violation of human rights? (p. 38)
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Specific legal rules and provisions

  • Articles 7 (gross violations of human rights), 9 (crimes against humanity as referred to in art. 7), 37 (sentencing regarding actions referred to in art. 9, letter a, b, d, e, or j), 41 (sentences for attempting, plotting, or assisting the perpetration of actions referred to in art. 9 letter g, h, or i) and 42 (command responsibility, by also finding it to be customary, p. 38) of Law No. 26 of the year 2000 establishing the Ad Hoc Human Rights Court.
  • Article 2 (authority to investigate and decide upon cases as an effective military commander or as a person who is effectively acting as military commander and/or person in charge of the security and safety of the people living in the region of Kabupaten Liquisa) of President Decree No. 96, dated 1 August 2001.
  • Article 7(2) (crimes against humanity) of the Rome Statute of the International Criminal Court:

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Court's holding and analysis

The Ad Hoc Tribunal decided to release all three defendants from the charges, and required their rights in their ability, positions, and their rank to be restored. It found that the three defendants have been “legally and certainly not proven” to be guilty (pp. 45, 48, and 50, respectively). In addition, the Tribunal did not manage to find any chain of command or effective control between the defendants, on the one hand, and the members of the BMP, on the other. The Tribunal also found that the BMP “was not a group [or] army under the chain of command and effective control” of any of the defendants (pp. 44, 47 and 49, respectively).

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Further analysis

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Instruments cited

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Additional materials