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(Source picture: Eleicoes Presidencias 2012)

(Source picture: Eleicoes Presidencias 2012)

Ad Hoc Prosecutors v. Timbul Silaen

Court Ad Hoc Human Rights Tribunal at Central Jakarta District Court, Indonesia
Case number 02/PID.HAM/AD.Hoc/2002/PN.JKT.PST.
Decision title Judgement
Decision date 15 August 2002
Parties
  • Ad Hoc Prosecutors
  • Drs. G.M. Timbul Silaen
Categories Crimes against humanity
Keywords Crimes against humanity; persecution
Links
Other countries involved
  • East Timor
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Summary

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.

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Procedural history

On 19 February 2002, Timbul Silaen was indicted in absentia for crimes against humanity before the Special Panel for Serious Crimes of the District Court of Dili.  Silaen was, inter alia, indicted for his responsibility for the attacks on the Dili Diocese and Archbishop Belo’s residence in Dili on 5 and 6 September 1999 respectively, and for his role in the forcible transfer of over 25,000 civilians from Dili to West Timor between 5 and 9 September 1999.

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Related developments

On 13 January 2004, the Indonesian Supreme Court upheld the acquittal of Silaen.

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Legally relevant facts

On 30 March 1998, Silaen was appointed East Timor police chief.

In January 1999, the Indonesian Government decided to hold a referendum to give the people of East Timor the opportunity to decide whether East Timor should secede from the Republic of Indonesia, or whether it should become autonomous within the Republic of Indonesia. This decision was followed by hostilities and fighting between the pro-Indonesian community and the pro-independence community.

On 6 April 1999, the pro-independence group attacked and threatened to kill members of the pro-Indonesian group in the town of Maubara, and also took two members hostage. Following this attack, a violent incident took place in the Liquisa Church Complex, resulting in the deaths of 9 people and the injuries of many others. Further violent incidents include the 17 April 1999 incident on the residence of Manuel Viegas Carrascalao who was an East Timorese independence leader (12 deaths and 25 injuries), the 5 September 1999 incident on the residence of Archbishop Bello (2 deaths and several injuries), and the 6 September 1999 attack on the Ave Maria Church in the village of Suai (27 deaths and several injuries).

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Core legal questions

Did Timbul Silaen as a superior knew or knowingly ignored any information that explicitly showed that his subordinates were conducting or had conducted gross human right violations?

Did Timbul Silaen as a superior not take any proper and necessary action within his jurisdiction to prevent or to stop the alleged crimes, or to surrender the perpetrators to the authorised officials for investigation, examination and prosecution?

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Specific legal rules and provisions

Law No. 26 Year 2000 on the establishment of the Ad Hoc Human Rights Court, Republic of Indonesia:

  • Article 7 - Gross violations of human rights

  • Article 9 - Crimes against humanity

  • Article 37 - Sentence in relation to crimes against humanity

  • Article 42(2)(a) and (b) - Superior responsibility

Rome Statute of the International Criminal Court, 1998:

  • Article 6 - Genocide

  • Article 7 - Crimes against humanity
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Court's holding and analysis

The Indonesian Ad Hoc Tribunal for East Timor analysed the information that was available to Silaen at the time of the alleged crimes.

With regard to the attack on the Liquisa Church, the Tribunal held that Silaen knew about ‘the occurrence of a gross human rights violation at the Liquisa Church […]’ (p. 42). However, it concluded that there was no ‘policy from the Defendant as a superior, both orally or in writing, to his subordination to conduct the attack’ (p. 42). According to the Tribunal, this was also the case with regard to the attack on the residence of Manuel Viegas Carrascalao on 17 April 1999.

In addressing the question whether Silaen should be held criminally accountable for the gross human rights violations in East Timor, the Tribunal noted that accountability in this case means accountability as a superior or a commander (p. 42). Because there was no definition of “commander” in Indonesia the Court relied on the International Criminal Tribunal for Rwanda’s definition of command responsibility. Relying on that definition, the Tribunal stated that Silaen could not be held accountable because it was not proven that his subordinates committed the gross human rights violations (p. 43).

Therefore, the Tribunal found that Silaen could not be held guilty of committing the gross human rights violations as charged and therefore acquitted him (p. 45).

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Further analysis

A. Yudha, ‘The Acquittals of East Timor Trials: A Wasted Opportunity to Learn’, Papers Agungyudha, 31 January 2003.

S. Frease, ‘Playing Hide and Seek with International Justice: What Went Wrong in Indonesia and East Timor’, Journal of International and Comparative Law, 2003-2004, Vol. 10, pp. 283-292.

S. de Bertodano, ‘Current Developments in Internationalized Courts - East Timor - Justice Denied’, Journal of International Criminal Justice, 2004, Vol. 2, pp. 910-926.

S. Linton, ‘Unravelling the First Three Trials at Indonesia's Ad Hoc Court for Human Rights Violations in East Timor’, Leiden Journal of International Law, June 2004, Vol. 17(2), pp. 303-361.

R. Tanter, D. Ball, and G. Van Klinken (eds.), Masters of Terror: Indonesia's Military and Violence in East Timor, USA: Rowman & Littlefield Publishers 2006.

H. J. Triyana, ‘The Application of International Standards for Fair Trial for Prosecution of Gross Violations of Human Rights in the Indonesian Criminal Proceedings’, Asia Law Quarterly, 2009, Vol. 1(1), pp. 105-122.

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Instruments cited

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Related cases

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Additional materials

‘Indonesia: East Timor trial delivers neither truth nor justice’, Amnesty International UK, 14 August 2002.

‘Rights groups shocked at Indonesian acquittals’, CBCNews, 15 August 2002.

‘East Timor police chief acquitted’, BBC News, 15 August 2002.

S. Lekic, ‘Indonesia Acquits Ex-Police Chief’, Associated Press, 15 August 2002.

R. C. Paddock, ‘Ex-Police Chief, 5 Others Acquitted in E. Timor Killings’, Los Angeles Times, 16 August 2002.

J. Perlez, ‘Indonesia Acquits 6 in Rights Case, Upsetting the U.S.’, The New York Times, 16 August 2002.

‘Court clears 6 of charges in East Timor’, The Seattle Times, 16 August 2002.

J. Aglionby, ‘East Timor verdicts undermine tribunal’, The Guardian, 16 August 2002.

M. Moore, ‘Military innocent: UN to blame for Timor atrocities’, The Sydney Morning Herald, 17 August 2002.

‘Just doing their duty?’, The Economist, 22 August 2002.

P. Symonds, ‘Indonesian court acquits military of East Timor atrocities’, World Socialist Web Site, 29 August 2002.

‘Indonesian Court Clears Senior Officer’, Global Policy Forum, 13 January 2004.

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Social media links

‘Six Indonesian officers acquitted on human rights violation charges’, China Human Rights.

P. Barber, ‘News Flash: Rights Court Acquits Ex-E. Timor Police Chief’, topica, 15 August 2002.

T. Deen, ‘Indonesia Covering up 1999 Atrocities, UN Says’, Monitor, 25 August 2002.