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(Source picture: Suara Merdeka)

(Source picture: Suara Merdeka)

Prosecution v. Abilio Soares

Court The Ad Hoc Human Rights Tribunal at the Human Rights Court of Justice of Central Jakarta, Indonesia, Indonesia
Case number 01/PID.HAM/AD.Hoc/2002/ph.JKT.PST
Decision title Judgment
Decision date 14 August 2002
Parties
  • José Abílio Osório Soares
  • Prosecution
Categories Crimes against humanity
Keywords assault, command responsibility, crimes against humanity, Murder, persecution, retroactive use of criminal legislation
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Summary

Abilio Soares was governor of East Timor at the time violence broke out in East Timor before, during and after the referendum on independence of Indonesia.

On 20 February 2002 he was indicted on two charges of crimes against humanity: murder and assault/persecution. He was charged with command responsibility for the failings and actions of his subordinates and militias, in relation to events during which anti-independence militias committed massacres, such as in the church in Liquica on 6 April 1999, at the house of pro-independence leader Manuel Carrascalao on 17 April 1999, at the residence of the Bishop of Belo on 6 September 1999 and in the church in Suai on 6 September 1999. In each one of these instances, he was accused of not having exercised his authority in order to prevent these crimes from taking place.

The Court considered that, under command responsibility, Abilio Soares was criminally responsible for the human rights violations perpetrated by his subordinates. To come to this conclusion, the Court considered the following elements: his subordinates were under Soares’ effective control and authority, but he did not exert appropriate and proper control over them;  Abilio Soares was aware, or consciously disregarded information relating to these events, as he was informed of these events by subordinates; and that Soares took no action against those district heads under his control who had committed the murders and assaults (for example to prevent or stop the acts or surrender the perpetrators to authorities for investigation and prosecution).

The Court sentenced Abilio Soares to 3 years’ imprisonment, significantly lower than the minimum sentence of 10 years. 

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Procedural history

Abilio Soares was indicted on 19 February 2002.

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Related developments

Abilio Soares was acquitted on appeal on 5 November 2004 by the Indonesian Supreme Court. The Court ruled that because the military was effectively in charge at the time, Soares, a civilian, could not be responsible.

Abilio Soares was also indicted for crimes against humanity by the Serious Crimes Unit of the Dili District Court in East Timor on 24 February 2003.  

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Legally relevant facts

Abilio Soares was governor of East Timor at the time violence broke out in East Timor before, during and after the referendum on independence of Indonesia. On 17 April Abilio Soares was present at a large show of (anti-independence) militia force in Dili, and he took part in establishing and supported and facilitated anti-independence organizations (Pam Swakarsa) and militias. Soares also provided militias with compensation funds and incentive payments.

His responsibility was connected to certain specific events during which anti-independence militias had committed a large number of crimes: amongst others, the massacres committed in the church in Liquica on 6 April 1999; the attack on the home of pro-independence leader Manuel Carrascalao on 17 April 1999; the massacres at the residence of the Bishop of Belo on 6 September 1999; and the massacres in the church in Suai on 6 September 1999.

Abilio Soares was informed of these events by subordinates, but took no action against those who had committed the murders.

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Core legal questions

  • How is civilian command responsibility established as a mode of liability?  

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Specific legal rules and provisions

  • Articles 7(b), 9(a), 42(2)(a) and (b), 37 and 40 of Law 26/2000 concerning the Human Rights Tribunal.

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Court's holding and analysis

In analysing his (civilian) command responsibility, the court took note of the following elements:

As governor, Abilio Soares headed the local government and exercised control and authority over the district heads. He also involved in the establishment of, and had the power to exert control over the political organizations and militia. Furthermore, as he had received numerous reports on incidents, Soares knew, or deliberately disregarded that his subordinates had perpetrated serious human rights violations aimed at pro-independence civilians. And finally, he failed to take the necessary appropriate measures against his subordinates to stop the acts, whether in preventing them, or in issuing warnings and demanding reporting, or in bringing them to prosecution.

Taking all this into account, the Court concluded that by he is criminally responsible for the serious human rights violations perpetrated by his subordinates. Also, because the murders and assaults were part of a widespread or systematic attack aimed directly at pro-independence civilian residents, the crimes constitute crimes against humanity. Thus, Soares also holds command responsibility in this regard.  

Weighing mitigating and aggravating factors, the Court sentences Soares to 3 years in prison.

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Further analysis

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Instruments cited

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Related cases

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Additional materials