Deputy General Prosecutor for Serious Crimes v. Sisto Barros and Cesar Mendonca
| Court |
Special Panels for Serious Crimes (District Court of Dili), East Timor |
| Case number |
01/2004 |
| Decision title |
Final Judgment |
| Decision date |
12 May 2005 |
| Parties |
- Deputy General Prosecutor for Serious Crimes
- Sisto Barros a.k.a Xisto Barros
- Cesar Mendonca
|
| Categories |
Crimes against humanity |
| Keywords |
crimes against humanity, Murder, persecution |
| Links |
|
back to topSummary
Indonesia’s invasion of Timor-Leste in 1975 marked the beginning of almost 25 years of immense atrocities and human rights abuses, resulting in the deaths of nearly one-third of the population of Timor-Leste from starvation, disease, and the use of napalm. Indonesia eventually withdrew in 1999 following international pressure; Timor-Leste achieved full independence in 2002. The Special Panels for Serious Crimes was established to prosecute persons responsible for the serious crimes committed in 1999, including genocide, war crimes, crimes against humanity, sexual offenses and torture.
The Accused, Barros and Mendonca, were members of the Laksaur militia, an armed group aimed at suppressing Timorese supporters of independence. The Panel convicted the Accused for two counts of murder, attempted murder and persecution carried out as part of a widespread and systematic attack against the population of East Timor, who had voted in favour of Timorese independence from Indonesia. Although neither of the Accused had carried out the acts themselves, they were liable as members of a joint criminal enterprise whose purpose was to suppress pro-independence supporters.
back to topProcedural history
On 15 March 2004, the Deputy Prosecutor General for Serious Crimes filed an indictment with the Special Panels for Serious Crimes (SPSC) charging both Accused with counts of crimes against humanity (murder, attempted murder, forcible deportation and persecution).
The trial commenced on 7 March 2005 and concluded on 29 April 2005.
The SPSC rendered its verdict and sentence on 29 April 2005, finding both Accused guilty of two counts of murder, one count of attempted murder and one count of persecution. They were sentenced to 9 years’ imprisonment each. The final judgment was rendered 12 May 2005.
back to topRelated developments
Both Accused appealed their convictions; the Court of Appeal dismissed both appeals.
back to topLegally relevant facts
Timor-Leste, a former Portugese colony, was invaded by the armed forces of Indonesia in December 1975 and declared a province of the latter (para. 62). Supporters of the independence of East Timor pursued their efforts through political and military means until 1999, when a referendum was held in which the people of East Timor by an overwhelming majority voted in favour of independence (paras. 63-64). Prior to and following the vote, a widespread and systematic campaign was launched by Indonesian police and military authorities to suppress the independence supporters. Acts of murder, rape, torture and forcible deportation was committed (paras. 66, 69).
The Laksaur militia was a pro-autonomy group that participated in the campaign of repression (para. 70). The Accused were both members of the Laksaur militia (para. 73); they participated in the deportation of independence supporters from to West Timor (paras. 76, 105), and the murders of civilians (paras. 85, 91, 96-97), and ill-treatment (para. 115).
back to topCore legal questions
- If it is established that the Accused were not direct perpetrators of any of the crimes, on what mode of liability may they be found liable?
- Does the offense of persecution require a connection with another crime within the jurisdiction of the Special Panels?
back to topSpecific legal rules and provisions
- Sections 5.1 and 14 of UNTAET Regulation No. 2000/15.
back to topCourt's holding and analysis
Pursuant to section 14(3)(d)(i) of UNTAET Regulation No. 2000/15, a person may be liable if he contributes in any way to the commission of a crime by a group of persons acting with a common purpose. This mode of liability is known as joint enterprise and requires establishment of (1) a group of persons acting with a common purpose; (2) the defendant’s contribution to the commission of crimes by the group with the aim of furthering the criminal activity or purpose; and (3) this contribution must have been intentional (paras. 123-124). This was established in the present instance in respect of both Accused (para. 143).
Following earlier case law (para. 150), a connection between persecution and another crime within the jurisdiction of the Special Panels is necessary. This is satisfied even if the connected crime does not fall within the jurisdiction of the Special Panels, so long as the underlying facts of that crime constitute an offence within the jurisdiction of the Special Panels (para. 152). The arrest and beating of two individuals (not crimes within the jurisdiction of the Panels per se) nonetheless amount to imprisonment or other severe deprivation of physical liberty pursuant to Section 5.1(e) of the Regulation (para. 153).
The Panel convicted both Barros and Mendonca of murder, attempted murder and persecution as crimes against humanity (paras. 156-157). They were sentenced to 9 years’ imprisonment each (para. 168).
back to topFurther analysis
- K. Ambos, ‘Treatise on International Criminal Law: Volume 1: Foundations and General Part’, Oxford: Oxford University Press, 2013 (p. 136-138).
- G.S. McNeal, ‘Analysis of the Judgements in Republica Democratica de Timor-Leste, Dili District Court, the Special Panels for Serious Crimes’, Annotated Leading Cases of International Criminal Tribunals, 2011, Vol. 16;
- ‘The Special Panels for Serious Crimes Hear Their Final Case’, Judicial System Monitoring Program, 12-20 May 2005;
- S. de Bertodano, ‘Current Developments in Internationalised Courts: East Timor – Justice Denied’, Journal of International Criminal Justice, 2004, Vol. 2, pp. 910-926.
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