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(Photo provided courtesy of the American University Washington College of Law, War Crimes Research Office)

(Photo provided courtesy of the American University Washington College of Law, War Crimes Research Office)

The Prosecutor v. Domingos Mendonca

Court Special Panels for Serious Crimes (District Court of Dili), East Timor
Case number 18b/2001
Decision title Judgement
Decision date 13 October 2003
Parties
  • The Public Prosecutor
  • Domingos Mendonca
Other names
  • SAME Case
Categories Crimes against humanity
Keywords crimes against humanity, Murder, persecution
Links
Other countries involved
  • Indonesia
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Summary

From 1975 until 2002, Indonesia illegally occupied East Timor. The occupation was characterised by violence against the civilian population of East Timor, particularly against those perceived or known to be independence supporters.

The Accused, Domingos Mendonca, was a member of a pro-autonomy militia group known as Tim Sasurat Ablai. Through his involvement with the militia, he participated in attacks on the villages of Orluli and Surirema. At the former, he participated in the beating of two individuals with other militia members; both victims died. In the latter, he participated in a number of acts against the villagers including forcing them to drink a mixture of animal and human blood, destroying their homes and leaving almost 300 individuals homeless, forcing them to cook under threat of death and interrogating them as to their political allegiances.

The Special Panel for Serious Crimes convicted Mendonca of one count of murder and one count of persecution as crimes against humanity. He was sentenced to 10 years and 6 months’ imprisonment.

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Procedural history

On 7 August 2001, the Special Panels indicted the Accused, Domingos Mendonca, and three other individuals, Benjamin Sarmento, Romeiro Tilman and Joao Sarmento with crimes against humanity. The Accused was charged with two counts of murder and one count of persecution.

The preliminary hearing commenced on 13 February 2002 and concluded on 14 February 2002.

On 30 June 2001, the Accused’s case was severed from that of his co-Accused following the guilty pleas entered by Benjamin Sarmento and Romeiro Tilman.

On 4 August 2003, Joao Sarmento pleaded guilty. The Court continued with the case of the Accused and renumbered it 18b/2001. The Prosecution withdrew one count of murder against the Accused.

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Legally relevant facts

On 17 April 1999, members of the Tim Sasurat Ablai militia (including the Accused) attcked the village of Orluli (paras. 96-97). In the course of this attack, a villager named Luis Boco-Siri was beaten, kicked and stabbed until he died by members of the militia (para. 98). Agapito De Araujo was another villager who was severely beaten, including with sticks, by the militia (para. 99). Although his mother attempted to shield him, militia members pulled her away and stabbed Agapito to death with spears. The Accused took part in these beatings (paras. 100-101).

The militia also attacked the village of Surirema. Homes were destroyed, almosy 200 villagers were forced to drink a mixture of animal and human blood; others were forced to cook under threat of death, and men and women were beaten (para. 105). The Accused participated in these acts (para. 106) including questioning the villagers about their political beliefs and threatening that independence supporters would be killed (para. 107).

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Core legal questions

  • What are the elements of murder as a crime against humanity?
  • What is the legal relationship between the crime against humanity of persecution and the crime of discrimination?

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Specific legal rules and provisions

  • Section 5.1(a) and (h) of UNTAET Regulation 2000/15.

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Court's holding and analysis

Following the Special Panel’s earlier case law in The Prosecutor v. Joni Marques, the elements of murder as a crime against humanity are as follows:

  1. The victim is dead
  2. The death of the victim is the result of the perpetrator’s act
  3. The act must be a substantial cause of the death of the victim
  4. At the time of the killing, the Accused must have meant to cause the death of the victim or was aware that it would occur in the ordinary course of events.

There is no requirement of premeditation, contrary to murder as a domestic offense as set out in the Indonesian Penal Code (para. 115).

Persecution is a form of discrimination that results in the infringement of an individual’s fundamental rights, and this discrimination must be on specific grounds (inter alia, on the basis of political, racial, national, ethnic, cultural, religious, gender identity). Persecution can take various formed, although the common element that must be demonstrated is discrimination in regard to the enjoyment of a basic or fundamental right (para. 125). In the present instance, the discriminatory ground was the political allegiance of the victims to the independence cause (para. 126).

The Special Panel convicted the Accused of one count of murder and one count of persecution (para. 129) and sentenced him to 10 years and 6 months’ imprisonment (para. 146).

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Further analysis

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Instruments cited

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Related cases

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Additional materials