25th of May 2006 Massacre & War Crimes in Timor-Leste

January 24, 2007 Andrew Harrington
Joint B.A (Hon.), LL.B / M.A. International Affairs Norman Paterson School of International Affairs & Faculty of Common Law, University of Ottawa Joint Candidate

Author Contact: andy_harrington78@hotmail.com

TABLE OF CONTENTS INTRODUCTION.................................................................................................................................. 3 BACKGROUND .................................................................................................................................... 4 THE EVENT IN QUESTION ...................................................................................................................... 8 Account from the Special Commission of Inquiry ............................................................................. 8
Shooting of PNTL officers ........................................................................................................................14

ROUND UP ......................................................................................................................................... 15 ANALYSIS ........................................................................................................................................... 16 FRAMEWORK ...................................................................................................................................... 17 APPLICABLE RULES ........................................................................................................................ 20 ARTICLE 3, COMMON TO THE GENEVA CONVENTIONS .......................................................................... 20 ADDITIONAL PROTOCOL II TO THE GENEVA CONVENTIONS 1977.......................................................... 21 1. THE VIOLATION MUST CONSTITUTE AN INFRINGEMENT OF A RULE OF INTERNATIONAL HUMANITARIAN LAW.................................................................................... 21 REQUISITE ACTION ............................................................................................................................. 21 PROHIBITED ACTIONS AGAINST PROTECTED PERSONS .......................................................................... 23 APPLICABILITY OF RULES ................................................................................................................... 26 EXISTENCE OF “A RMED CONFLICT” .................................................................................................... 27 ARMED VIOLENCE: SPORADIC OR PROTRACTED? ................................................................................. 27 ORGANIZED ARMED GROUPS .............................................................................................................. 32 NEXUS TO A RMED CONFLICT .............................................................................................................. 37 2. THE RULE VIOLATED MUST BE CUSTOMARY IN NATURE OR, IF IT BELONGS TO TREATY LAW, THE REQUIRED CONDITIONS MUST BE MET ................................................ 42 3. GRAVE OR SERIOUS BREACH OF THE APPLICABLE INTERNATIONAL RULE .............. 44 4. THE VIOLATION OF THE RULE MUST ENTAIL, UNDER CUSTOMARY OR CONVENTIONAL LAW, THE INDIVIDUAL CRIMINAL RESPONSIBILITY OF THE PERSON BREACHING THE RULE................................................................................................................... 46 COMMAND RESPONSIBILITY ................................................................................................................ 48 FINAL CONSIDERATION: MENTAL ELEMENT ......................................................................... 49 CONCLUSION..................................................................................................................................... 52

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Introduction
Early in 2006, Timor-Leste took a step backward. Lauded by then-United Nations Secretary General Kofi Annan as a successful nation building exercise, Timor was supposed to be on track for success. Instead, by the end of June 2006, upwards of 150,000 Timorese were displaced from their homes, with 70,000 registered for aid in camps around Dili and another 80,000 fled back to their Districts in the countryside. Instability continues despite the presence of over 3000 international troops between June and September 2006, now drawn down to 1000 troops and 1000 United Nations police (UNPol) officers. Initially, the incident began within the East Timor Defence Force (FFDTL) 1 but spread quickly. One incident in particular which occurred during the recent unrest stands out above others for its brutality.

On May 25th, the massacre of eight unarmed Timorese police officers (PNTL- Policia Nacional de Timor-Leste) shocked observers. This paper analyzes the killing of those unarmed PNTL officers, while another 27 were wounded – including 2 United Nations (UN) staff members. The killing is thought to have been committed by members of the F-FDTL. This paper discusses whether these actions constitute “war crimes” at

international law, particularly as enumerated in the Statute of the International Criminal Court with the aim of prosecuting them as such. It is the author’ s opinion that to try the alleged perpetrators for simple murder charges, rather than for murder as a “war crime” would be to mitigate the severity of the crimes. It would not send a strong message to the Timorese that after the end of Indonesia’ s brutal 24-year occupation, such horrific actions
1

F-FDTL is the acronym for Falintil (Forças Armadas de Libertação Nacional de Timor-Leste)-Forças de Defesa de Timor Leste. (Armed Forces of the National Liberation of East Timor-East Timor Defence Force)

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will never be tolerated in their country again, and fail some of the ultimate goals behind international criminal law.

While the result of a positive finding in this respect inevitably leads to questions regarding preferable jurisdictions for trying the accused, and a result in the negative merits an expansive discussion of “murder” as per the Indonesian Penal Code in effect in Timor-Leste2, it is outside the purview of this paper to discuss these issues. The only item discussed here is the determination of whether the event in question amounts to a war crime. To this end, before applying international law to the events, a brief recap of some of the key events of April and May 2006 is necessary.

Background
On January 11th 2006, a group of soldiers within the F-FDTL (now called “the Petitioners”) lodged a series of formal complaints with F-FDTL chief, Brigadier General Taur Matan Ruak. The majority of the Petitioners were from the western Districts of Timor – “westerners” being one of two internally recognized ethnic groups in TimorLeste, “easterners” the other. The grievances cited poor service conditions, lack of opportunity for promotion, and abusive discrimination by eastern officers against westerners (e.g. calling the westerners “sons of Indonesian militia whores”, relating to claims Timorese from the eastern portion of the country did more to resist the Indonesian occupation than those in the west).
2

Insofar as Indonesian Penal Law does not conflict with international human rights standards, it remains in effect in Timor-Leste until such time as parliament passes a Timorese code – per UNTAET regulations, confirmed by Timorese Parliament.

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Instead of taking these complaints seriously (which had been building over the previous few years according to some analysts) they were largely ignored (F-FDTL leadership is dominated by easterners). By early February, talks to resolve the issues broke down and nearly 400 Petitioners deserted their posts from various F-FDTL bases. By mid-

February, the number grew to 591 – 40% of the total force of 1500. On February 23rd, Brigadier General Taur Matan Ruak unceremoniously dismissed all 591 of the Petitioners after they failed to return to their barracks. The Brigadier General simply stated, “Thank you”, and fired them.3 While questions remain over his legal ability to have done so, the decision was endorsed by then Prime Minister Mari Alkatiri.

On the 23rd of March, President Xanana Gusmão addressed the nation stating that the dismissal was within the competency of the Matan Ruak’ s domain, but also that the decision was unjust. The President, using the Petitioner’ s language, gave credence to their claims that problems within F-FDTL were due primarily to discrimination by easterners against westerners. This speech was perceived as divisive and helped to further provoking inter-ethnic group conflict. Between March 25th and 31st, multiple minor disturbances in Dili assumed an east versus west dynamic as youths from both regions became embroiled in the petitioner issue, though there is evidence these disturbances were merely the latest manifestations of an east-west divide.

3

Quoted in: Suara Timor Lorosa’ e, archived on UNOTIL Daily Media Review (February 23, 2006) <http://www.unotil.org/UNMISETWebSite.nsf/cce478c23e97627349256f0a003ee127/0c12bc99becaf5014 925711e002f6177?OpenDocument> (Accessed September 13, 2006)

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After a tense period of discussions and moves by the government, talks failed and the Petitioners requested and received permission to hold a series of demonstrations. April 24th marked the beginning of 4 days of protests by Petitioners and thousands of civilians who joined their cause. On April 26th market stalls and properties belonging to easterners were attacked. The final demonstration on April 28th April turned violent. In the context of virulent anti-easterner and anti-government speeches made by pro-western militant groups, mixed bands of civilians and petitioners broke off from the main demonstration and attacked the Government Palace, burning a government vehicle and smashing windows. The Timorese police forces were unable (or unwilling) to control the situation and withdrew. Public order and security deteriorated rapidly. This violence spread to

Dili’ s western Sucos, Comoro and Tasi Tolu. In light of the inability (or unwillingness) of the police to re-establish order, now deposed Prime Minister Alkatiri deployed remaining F-FDTL forces onto city streets to quash the violence. Armed civilians were seen in the F-FDTL ranks deployed in Tasi Tolu. Official reports cite 5 dead, 47 wounded, with around 100 homes burned – mainly belonging to easterners. thousand people were initially displaced. Ten

The now infamous Major Alfredo Reinado deserted his post afterward with his military police platoon, taking significant amounts of military hardware with them, citing the unconstitutionality of the Prime Minister’ s order. Notably, he flees to the west indicating support for that ethnic group.

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The events between the 23rd and 25th of May perhaps proved the final tipping point and marked the outbreak of hostilities. On the 23rd of May, during a filmed interview between Major Reinado and SBS4 reporter David O’ Shea in Fatu Ahi, a group of FFDTL soldiers approached the area with some PNTL officers to establish a joint base of operations. Reinado was filmed warning them off and counting to “10”, raising his scoped M-16 rifle, and firing. When prompted by O’ Shea, Reinado replied “Got one!”, apparently having shot an F-FDTL soldier while being filmed. The resulting battle in

which numerous F-FDTL officers were killed appears to have been a set-up, with Reinado’ s men strategically placed in ambush formation in a locale they knew the FFDTL – largely easterners – would pass.

On May 24th, PNTL and civilian militia (westerners) launched a sustained attack on military personnel in Tasi Tolu. The now infamous “Railos” militia was apparently involved in the attack, contradicting claims of having been armed and ordered to provide security to FRETILIN5 members and/or liquidate Petitioners (e.g. westerners). The

fighting was intense; an F-FDTL maritime gunboat was called to provide heavy fire support for the F-FDTL, strafing the surrounding hills. A number of the attackers was killed and found in possession of weaponry issued exclusively to PNTL forces.

Later that day, another concerted attack was launched against the personal residence of Brigadier General Taur Matan Ruak (an easterner), again by a mixed group of PNTL and armed civilians, apparently led by Deputy PNTL Commander for Liquiça, Abilio
4 5

The Australian Special Braodcasting Service. Frente Revolucionária de Timor-Leste Independente (Revolutionary Front for an Independent East Timor).

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Mesquita (all westerners). The attack was subsequently repelled. On this day, the Timorese government requested international assistance to calm the situation.

The Event in Question
At this point, direct citation from the Special Commission of Inquiry 6 (COI) established to investigate the events leading up to the violence in Timor-Leste is used. The account is far more detailed than any which might be put together independently without being in the country:

Account from the Special Commission of Inquiry
As a result of PNTL attacks on the Taci Tolu military base and the Brigadier General’ s house, the relationship between the F-FDTL and the PNTL failed. It is important to note throughout, that each force was composed primarily of one ethnic group – PNTL of westerners, F-FDTL easterners.

73. Rumours of a planned attack by F-FDTL upon the PNTL headquarters began to circulate. Tip-offs about the impending attack were made by three different people within F-FDTL to three different people within PNTL, apparently as a result of friendships that were stronger than allegiances to F-FDTL. The tip-offs were reported to the PNTL Chief of Operations, the PNTL Dili District Commander, the Minister of the Interior, the Prime Minister and UNPOL. Indeed, one UNPOL officer reported the presence of machine guns
6

Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste Office of the High Commissioner of Human Rights (Geneva, 2 October 2006), paras 71-85. (COI Report). <www.ohchr.org/english/docs/ColReport-English.pdf> (Accessed January 18, 2007)

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on the roof of the former United Nations Peacekeeping Force (PKF) building during the afternoon of 24 May.

72. The PNTL Deputy General Commander (Administration), Lino Saldanha, who had been armed by and was by then operating under F-FDTL command, gave the last tip-off at about 2 a.m. on 25 May. In a telephone call to his administrative assistant, Commander Saldanha warned that F-FDTL would be coming to the PNTL headquarters to kill people. He asked specifically whether Chief of Operations de Jesus was present. Commander Saldanha made further telephone calls at about 9 a.m. and 10 a.m., the latter to Chief of Operations de Jesus, instructing all PNTL members to return to the PNTL headquarters.

73. Throughout the night of 24 to 25 May the F-FDTL hierarchy armed in excess of 200 civilians and PNTL officers and moved these civilians and officers to various locations in Dili. This process was organized as a response to the perceived threat posed to F-FDTL by PNTL. At about 1 a.m. 64 PNTL officers who had been armed by F-FDTL in Baucau left to go to Fatu Ahi. They were then sent to Military Police headquarters and from there to guard the water reservoir at Bairro Pite. At about 4 a.m. F-FDTL soldiers were also sent to Bairro Pite with orders to prevent petitioners from entering the city. Other FFDTL soldiers were sent to the ex-PKF building and told to be ready. By daylight, 84 soldiers were present at this location. This included some troops who had been stationed in Dili well before 25 May.

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74. Some time during 25 May the Prime Minister contacted both Brigadier General Ruak and PNTL Chief of Operations de Jesus, then the most senior PNTL officer in Dili, encouraging them to work together. Prime Minister Alkatiri provided the Brigadier General with the telephone number of the Chief of Operations.

75. During the morning of 25 May a convoy of PNTL vehicles passed in front of the Leader store in Comoro. Armed soldiers were present on the street. Two vehicles passed the police cars. The first was a white pick-up truck carrying three men in uniform armed with M16 weapons. The second was a red truck carrying between 15 and 20 armed men, some wearing uniforms and others in civilian clothes. The men from these vehicles and the soldiers on the street fired upon the police vehicles, wounding one PNTL officer in the legs. The police returned fire before returning, at speed, to the PNTL headquarters. The report of the shooting caused panic among the PNTL officers. Some armed themselves and assumed positions around the PNTL compound. Simultaneously, FFDTL soldiers within the ex-PKF building heard a report that PNTL officers had opened fire upon F-FDTL soldiers in Comoro before decamping, at speed, to their headquarters. While the Commission is satisfied, on the basis of evidence of independent witnesses, that F-FDTL initiated the exchange of fire, at the time each side believed that they had been attacked by the other.

76. A tense hour passed. Then, at about 11 a.m., a red pick-up truck drove towards the PNTL headquarters. PNTL officers who witnessed this suspected that the expected attack would be launched from that truck. One fired a single warning shot. Almost immediately

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two grenades were fired by F-FDTL from the ex-PKF building. One landed near the university gym and the second exploded on the PNTL building, injuring three officers. PNTL then returned fire and an intense exchange of fire followed.

77. The F-FDTL position articulated to the Commission is that F-FDTL had earlier come under fire from PNTL stationed both at the PNTL headquarters and the Ministry of Justice and, further, that this fire was aimed specifically at the second floor meeting room of the ex-PKF building where Brigadier General Ruak and Colonel Lere had been present since about 8 a.m. The Commission has received no evidence to support this position. To the contrary, on the basis of independent evidence the Commission is satisfied that the exchange of fire was triggered unintentionally by the single warning shot fired by a PNTL officer. The Commission is satisfied further that although there is information which suggests the possibility that F-FDTL were preparing to launch an attack against the PNTL headquarters, the exchange of fire that commenced at 11 a.m. on 25 May was not the execution of that attack.

78. Upon hearing the shot the initial response of the F-FDTL soldiers was confused and the evidence remains unclear whether that response was spontaneous or carried out under order. Initially all of the F-FDTL fire came from within the ex-PKF building. Later, under order, the FFDTL soldiers also took up positions to the west, south and east of the PNTL building, with a few F-FDTL soldiers also to the north. A group of about six soldiers took up positions at the Ministry of Justice intersection.

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79. Five UNPOL officers within the PNTL building had established radio contact with UNPOL officers at Obrigado Barracks at about 11.30 a.m. As a result UNPOL Senior Adviser Saif Malik became aware that the UNPOL officers were trapped, that PNTL officers had been injured and that PNTL wanted to organize a ceasefire, but were unable to contact the F-FDTL commanders. At around 12.30 p.m. Mr. Malik and Colonel Reis, the Chief Military Training Adviser, who had also heard the radio communications, each spoke separately with the Special Representative of the Secretary-General. Both men sought and were granted permission to intervene. While the Special Representative of the Secretary-General did not inform Colonel Reis, who was the second in time to speak to him, that permission had already been granted to Mr. Malik, the two men spoke shortly thereafter. Mr. Malik wanted to send UNPOL officers with Colonel Reis to meet with Brigadier General Ruak. Colonel Reis refused, believing that the presence of more police officers wearing blue shirts would aggravate the situation.

80. Colonel Reis, his deputy and another officer departed Obrigado Barracks in a United Nations vehicle with the United Nations flag held from the rear passenger window. Colonel Reis spoke with Brigadier General Ruak in the entrance to the ex-PKF building. The conversation lasted from 5 to 10 minutes, during which the shooting continued. A ceasefire was established. Although Brigadier General Ruak denies that the ceasefire was conditional upon the disarming of PNTL, the Commission is satisfied that the conditions of the ceasefire were that PNTL would be disarmed, the weapons would be taken by the United Nations officers and any PNTL officer who remained behind would be subject to

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a new attack. The Brigadier General gave his officers the order to cease fire. Colonel Lere sent runners to communicate the order to the soldiers not within earshot.

81. As Colonel Reis was leaving the ex-PKF building, two UNPOL officers arrived in the armoured United Nations vehicle made available to Mr. Malik by the Deputy Special Representative of the Secretary-General. These UNPOL officers had been sent to the area by Mr. Malik. The two United Nations vehicles then drove towards the PNTL headquarters arriving at about 1 p.m. Again the United Nations flag was displayed from the car of Colonel Reis. The ceasefire arrangements were explained to Chief of Operations Afonso de Jesus. Colonel Reis stressed that the surrender of arms was voluntary and only disarmed police officers would be allowed to leave. As the process of collecting weapons began, an additional six United Nations vehicles carrying UNPOL officers, including Mr. Malik, arrived. Colonel Reis and Mr. Malik had a heated verbal exchange. As the weapons collection was finalized, the PNTL officers were assembled in columns on the road flanked by United Nations vehicles.

82. A few minutes after the United Nations vehicles entered the PNTL headquarters and after the ceasefire had taken effect, one soldier, Ricardo Ribeiro Bure, was killed near the PNTL perimeter wall from a burst of fire originating from within the PNTL compound. F-FDTL soldier Francisco Amaral appeared at the Ministry of Justice intersection. His uniform was partially soaked in blood. An UNPOL officer asked if he had been injured, and was told that Mr. Amaral’ s friend had just been killed by PNTL.

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Shooting of PNTL officers
83. Colonel Reis led the PNTL officers on foot from their headquarters towards the Ministry of Justice intersection. He was carrying the United Nations flag. Before leaving the officers were warned to avoid eye contact with the soldiers on the side of the road and were warned not to run. F-FDTL soldiers involved in the shooting have told the Commission that the assembled police were arrogant and singing; however, the Commission accepts contrary evidence that the demeanour of the PNTL officers indicated that they were afraid. A feeble attempt at singing the national anthem quickly died. The same F-FDTL soldiers have told the Commission that they were uncertain if the PNTL officers had actually surrendered because they did not have their hands on their heads, they could have been concealing weapons in their backpacks and they were marching not behind a white flag, but that of the United Nations.

84. The column set off at about 1.45 p.m. Lieutenant Colonel Mann and an UNPOL officer went ahead of the column to speak with the F-FDTL soldiers on the street in an attempt to keep things calm. When most of the policemen had walked through the intersection, one F-FDTL soldier appeared to be agitated and searching for someone among the police officers. The F-FDTL soldiers say that one of the policemen had made a rude hand gesture at them. Mr. Malik attempted to speak with the agitated soldier, but the soldier sidestepped and fired into the policemen. There was then gunfire from three corners of the intersection. The soldiers fired at PNTL officers already on the ground. Evidence before the Commission indicates that at least six F-FDTL soldiers were involved in the shooting. Contrary to persistent rumour, there is no evidence that PNTL officers, including those armed and given uniforms by F-FDTL, were involved in the

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shooting. The shooting lasted about two or three minutes and involved at least 100 rounds of ammunition. Eight PNTL officers were killed and 27 others suffered serious gunshot injuries.

85. Mr. Malik coordinated the evacuation of the wounded officers to Obrigado Barracks. This destination was chosen because the wounded PNTL officers expressed fear of FFDTL reprisal if they were taken to the hospital. Colonel Reis and his deputy remonstrated with Brigadier General Ruak, who apologized for the shooting. Three soldiers allegedly responsible for the shooting were paraded before the Brigadier General. Only one admitted to having participated in the shooting and stated that he was upset by the PNTL killing of Bure after the ceasefire had been established.

Round Up
Following the incident, the PNTL disintegrated as a force in Dili and the remaining FFDTL forces were ordered to remain in their barracks. On the 26th of May, the first Australian soldiers landed in Dili and began securing the airport. In the resulting security vacuum, violence by youth gangs allied loosely with either faction, and both factions themselves, broke out around Dili. Armed groups attacked residents of rival ethnicity, burning and looting homes, and generally terrorizing the city throughout June. The violence caused an humanitarian emergency, with approximately 150,000 internally displaced persons – mostly easterners – and over 2000 homes damaged or destroyed as of early October 2006. The arrival of over 3200 peacekeepers somewhat stabilized the

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situation. Violence has since diminished, but sporadic burning, looting, and east-west street fights continue at present.

Analysis
The COI Report found enough evidence to establish that six F-FDTL soldiers were “reasonably suspected of murder” in the PNTL massacre. The COI Report recommended Nelson Francisco Cirilo da Silva, Francisco Amaral, Armindo da Silva, Paulino da Costa, José da Silva and Raimondo Madeira be prosecuted.7

While it may be true that evidence points to the involvement of the accused, the COI does not fully flush out its reasons for why they ought to be charged under domestic law (e.g. Indonesian penal law) for ‘ plain murder’apart from the country’ s “strong commitment to justice”8 and the “views of the government that primacy should be given to the domestic system”.9

They make no mention of applicable international humanitarian law (IHL) in support of their conclusion, apart from quickly mentioning that “[a]n international tribunal is not considered appropriate given that the crimes under consideration contravene domestic law,”10 while they further omit discussion of relevant Constitutional requirements regarding international law, treaty obligations.

7 8

COI Report, paras. 125 & 126. COI Report, para 176. 9 COI Report, para 178. 10 COI Report, para 179.

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If this is the future of international criminal law, then it seems doomed. Nearly all crimes taking place in such contexts will contravene a domestic law. It would be a difficult task to find permissive domestic legislation which would allow for the massacre of soldiers ‘ hors de combat’ , whether in an international or non-international context. The

Commission did not conduct an analysis of relevant international law to support their decision, perhaps indicating this decision was made for political expediencies.

Regardless of what the Commission has recommended, prima facie, the PNTL massacre described above looks to be a violation of the laws of armed conflict, or jus in bello, as established by international treaties and customary international law. While there may be a variety of sources for this to be substantiated, for the purposes of this paper, analysis will focus exclusively on the Geneva Conventions of 1949, and Additional Protocol II to those Conventions. Thus, the issue in question is: Did the PNTL massacre constitute a “war crime”?

Framework
While decisions handed down by the ad hoc International Criminal Tribunals are not binding upon subsequent decisions, such decisions are a good starting point when seeking a method of analysis for a given international criminal problem. In this case,

jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY) is instructive in a number of ways.

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Generally speaking, war crimes may be perpetrated in the course of either international or internal armed conflicts. Traditionally, war crimes were held to embrace only violations of international rules regulating international armed conflict.11 However, in the 1995 Tadic case, the court found that serious infringements of customary or applicable treaty law on internal armed conflicts must also be regarded as amounting to war crimes proper. Evidence of the broad acceptance of this can be found in article 8(2)(c-f) in the ICC’ s statute, in the statutes of the ICTY (article 2 & 3 interpreted by Tadic) , the International Criminal Tribunal for Rwanda (article 4)12, and various hybrid courts including the Special Court for Sierra Leone (article 3)13, the Extraordinary Chambers in the Courts of Cambodia (Article 6)14, and, perhaps most importantly, the Serious Crimes Panel for Timor-Leste (section 6)15

In Tadic, the court noted the international/non-international distinction was becoming more and more “blurred” and gave four reasons for removing the distinction. The court cited: 1. The increasing frequency of civil wars on account of technology and increasing inter-ethnic/economic tensions; 2. The increasingly cruelty and protracted nature of internal armed conflicts; 3. The increasing interdependence of states that makes it more difficult for non-party states to remain aloof, owing to economic, political, and ideological reasons; 4. The change from a state-sovereignty approach at international law gradually toward a human being-oriented approach:
11 12

Cassese, Antonio. International Criminal Law. (Oxford University Press, 2003) at p. 47. (Cassese) Statute of the International Criminal Tribunal for Rwanda. Security Council resolution 955 (8 November, 1994). 13 Statute of the Special Court for Sierra Leone <http://www.sc-sl.org/scsl-statute.html> 14 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea NS/RKM/0801/12 15 UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. UNTAET/REG/2000/15

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Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well. It follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted "only" within the territory of a sovereign State? If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy 16 should gradually lose its weight.

In addition to establishing the applicability of IHL to internal conflicts and the consequent ability to reach a finding of a “war crime” in such a context, the Tadic case also established a useful four-pronged test to establish whether a breach of international law of armed conflict (e.g. a war crime) has occurred. This test is useful in analyzing the PNTL massacre.

The test from Tadic requires that:
i) ii) iii) the violation must constitute an infringement of a rule of international humanitarian law; the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met … ; the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. … ; the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.17

iv)

Each of these elements contains a number of sub-elements/tests and considerations.

Prosecutor v. Dusko Tadic a/k/a “Dule”. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) at para 97. (Tadic) 17 Tadic, para. 94.

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Applicable Rules
The first step is to identify an international rule applicable to the situation, as per Tadic. In this case, Common Article 3 of the Geneva Conventions 1949 and article 4 of Protocol Additional II to the Geneva Conventions, 1977 seem a good fit. These articles are applicable in situations of non-international armed conflict making them the most logical portions of IHL canon to apply to the PNTL massacre (which was almost certainly of a non-international nature).

These two rules apply in overlapping circumstances. In a ‘ conflict’ where the level of strife if low, and which does not contain the characteristic features as required by Additional Protocol II, Common Article 3 will apply as its applicability is broader.18 Additional Protocol II is mentioned in various portions of this paper, however, the main crux of the analysis focuses on Common Article 3 due to its broader application and its established acceptance as customary international law contrary to Additional Protocol II. Common Article 3 has also been incorporated into the statute of the International Criminal Court in article 2(2)(c).

Article 3, Common to the Geneva Conventions
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

ICRC Commentary on Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977) at 4457. <http://www.icrc.org/ihl.nsf/COM/475-760004?OpenDocument>

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(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; … (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; … 19

Additional Protocol II to the Geneva Conventions 1977

Part II. Humane Treatment Art 4 Fundamental guarantees 1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever: a. violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;20

1. The violation must constitute an infringement of a rule of international humanitarian law
Requisite Action
In the first prong of the test the court established in Tadic, to demonstrate there has been an infringement/breach of a rule of armed conflict, it is necessary to establish an action or omission where there was a duty to act has occurred (e.g. the actus reus). In the situation
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Common Article 3 to: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Geneva Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. (Common Article 3) 20 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, article 4. (Additional Protocol II).

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described above, the murders and attempted murders of PNTL officers do denote an action. Quoting from the COI Report:
[T]he soldier sidestepped and fired into the policemen. There was then gunfire from three corners of the intersection. The soldiers fired at PNTL officers already on the ground. Evidence before the Commission indicates that at least six F-FDTL soldiers were involved in the shooting. … The shooting lasted about two or three minutes and involved at least 100 rounds of ammunition. Eight PNTL officers were killed and 27 others suffered serious gunshot injuries.21

Based on the COI’ s description of events, it is clear an action has taken place, namely the killing and wounding of PNTL officers. The killing and wounding of the PNTL officers clearly fits the description of conduct prohibited by Common Article 3, namely subsection (a) which bans violence to life and person, in particular, murder of all kinds; and subsection (c) which prohibits outrages upon personal dignity (not limited to degrading or humiliating treatment), as violence against the person often incorporates an outrage on personal dignity as well.

The killing of the PNTL officers also falls within the ambit of Additional Protocol II article 4, subsection (2)(a) which prohibits a broader range of actions, including violence to the life, health and physical or mental well-being of persons, in particular, murder. One can presume such an event would violently affect the mental well-being of those who survived or were injured while their comrades did not. Those injured and/or killed certainly suffered violence to their health and physical well being, while those who were killed suffered murder.

21

COI Report, at para 84

22

Prohibited Actions against Protected Persons
In addition to proving there has been an action, it must be shown the action was carried out against a party protected by applicable IHL. It is necessary therefore to show in this case that the PNTL victims were protected parties in accordance with Common Article 3 and Additional Protocol II at the time they were attacked.

According to Common Article 3, protected persons include:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause22

While Additional Protocol II states:
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted23

These two definitions of protected persons prima facie cover the PNTL officers who were subjected to attack. The officers were no longer taking active part in hostilities, having already laid down their weapons in the PNTL compound before starting out for UN Headquarters. Indeed, the COI found
that the conditions of the ceasefire were that PNTL would be disarmed, the weapons would be taken by the United Nations officers and any PNTL officer who remained behind would be subject to a new attack. The Brigadier General gave his officers the order to cease fire. Colonel Lere sent runners to communicate the order to the soldiers not within earshot.24

If this description of the agreement is accurate, the agreement itself establishes a tangible criteria for those hors de combat; those who remained behind would “be subject to a new attack”, or remain combatants and legitimate targets of attack, while those moving with

Common Article 3. Additional Protocol II, art. 4. 24 COI Report, para 80.
23

22

23

the UN column would be immune from attack under the ceasefire, hors de combat. Those walking in the column should have therefore remained immune from attack.

That said, numerous factors caused confusion as to whether the PNTL officers were actually hors de combat, despite a ceasefire order having been given by the F-FDTL Force Commander. First, as the column of PNTL officers was being led toward UN Headquarters, Colonel Reis was not carrying the universally-recognized symbol of ‘ surrender’ , a white flag, but rather carried the United Nations flag.25 It is unclear from the COI report why he chose to do this, but possibly, it was to signify that the PNTL officers were under UN protection and privy to the same immunity from attack as the UN; e.g. per the ICC statute, Article 8 (2) (e) (iii)
“Intentionally directing attacks against personnel, … , units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.”

Perhaps Colonel Reis believed marching under the UN flag would offer additional protection to the PNTL column. Regardless of his reasons, this is cited as having caused some confusion.

Furthering the confusion, the PNTL officers were not marching with their hands on their heads and had brought their backpacks which could have been used to conceal weapons.26 While this is cited in the COI Report, photos taken by UNPol officers immediately prior to the massacre do not show any backpacks or equipment as such;

25 26

COI Report, para 83. COI Report, para 83.

24

PNTL officers shown are not carrying any equipment, apart from those wearing flak jackets, hats, or radios on their belts, and only small items littered the ground in the wake of the shooting.

Lastly, and perhaps most importantly, a few minutes after the ceasefire was supposed to have taken effect, “one soldier, Ricardo Ribeiro Bure, was killed near the PNTL perimeter wall from a burst of fire originating from within the PNTL compound.”27 The killing of an F-FDTL soldier after the ceasefire was to have taken affect would have caused considerable confusion as to the situational status: Was there a ceasefire or not?

Despite these factors which may have caused some confusion among F-FDTL forces, it seems inconceivable, given the ceasefire order from Brigadier General Matan Ruak, the large UN presence, and that the PNTL column was marching unarmed directly in front of the F-FDTL (e.g. were the PNTL tactically suicidal?) that there could be such a huge mistake as to the status of the PNTL. Instead, as related by the COI Report, it would appear as though there was little confusion and the actions taken by at least one of the soldiers instead seems to have been intentional and a reprisal or revenge killing.

This soldier, identified in the COI Report as Francisco Amaral, arrived just prior to the massacre covered in blood and explained to an UNPol officer that his friend had just been killed by the PNTL by a burst of gunfire occurring after the ceasefire was to have taken effect.28 Supporting this, when the soldiers thought to be responsible for the killings were

27 28

COI Report, para 82. COI Report, para 82.

25

brought before Brigadier General Matan Ruak, Amaral apparently admitted participating in the shooting, citing his anger over the killing of Ricardo Ribeiro Bure after the ceasefire was established.29

Overall, there does not appear to have been sufficient grounds to legitimately claim mistake or confusion over the privileged non-combatant status of the PNTL. Regardless of these claims or a possible justification as a ‘ legitimate’ reprisal killing, the International Committee of the Red Cross Commentary to Common Article 3 does not support this, stating that: “No possible loophole is left; there can be no excuse, no attenuating circumstances”30 for derogation from these minimal protections. Thus, under Common Article 3 and Additional Protocol II, the PNTL officers were protected parties and without exception should not have been subject to violence to life and person, in particular murder of all kinds and/or outrages upon personal dignity; 31 and/or violence to the life, health and physical or mental well-being of persons, in particular murder.32

Applicability of Rules
Recalling the language of Common Article 3 to the Geneva Conventions and Protocol Additional II, it must be shown that the action against a protected party took place in the context of an armed conflict (e.g. not sporadic) to invoke such protections. As stated by the documents:
COI Report, 85. Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Commentary, p. 38. <http://www.icrc.org/ihl.nsf/COM/380-600006?OpenDocument> 31 Common Article 3. 32 Protocol Additional II
30 29

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a.

Common Article 3: Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions33 Additional Protocol II: 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.34

b.

Existence of “Armed Conflict”
Thus, the issue here is whether the situation which arose in late May 2006 could be defined as an “armed conflict”. According to the definition established in the Tadic decision:
armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved… 35

In line with this definition, there are several requirements that must be filled in order to confirm that an armed conflict exists, thereby invoking the protections provided for by Additional Protocol II and Common Article 3.

Armed Violence: Sporadic or Protracted?
Common Article 3 is likely applicable in more non-international situations, however Additional Protocol II is expressly limited in its scope:
2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.36

Common Article 3. Additional Protocol II, art. 4. 35 Tadic, para. 70. 36 Additional Protocol II, art. 1.
34

33

27

To support a finding that an ‘ armed conflict’did exist and IHL was applicable, it is useful to confirm this by establishing that the events in question were not of a sporadic nature, or outside the scope of IHL.

The dictionary definition of the term “sporadic” refers to events “occurring occasionally, singly, or in irregular or random instances.”37 If the events listed by the COI are taken in isolation, they might be seen as sporadic. For example, the initial demonstrations in which violence erupted during late April would almost certainly be termed “sporadic” and/or “isolated” – if nothing had happened afterward or before. The same might be said of the PNTL massacre if nothing had occurred previously, or subsequently. But if these events are viewed in the context of the whole situation, multiple related and organized attacks have occurred:
? ? ? ? ? ? 23 May 2006 F-FDTL and PNTL officers are ambushed by Major Reinado and his group. Five persons are killed, 10 persons are seriously injured. 24 May 2006 Major attack on F-FDTL soldiers in Taci Tolu/Tibar by the Rai Los group, petitioners, and PNTL. Five persons are killed two persons are seriously injured. 24 May 2006 Attack on the house of Brigadier General Taur Matan Ruak. One person is killed, two persons are injured. 25 May 2006 The house of in-laws of Minister of the Interior Lobato is burnt. Six civilians trapped inside the house are killed. 25 May 2006 (morning) PNTL are attacked by F-FDTL in Suco Comoro 25 May 2006 An armed confrontation between F-FDTL soldiers and PNTL officers centred on the PNTL headquarters is followed by the shooting of unarmed PNTL officers escorted under United Nations protection. Nine persons are killed, twenty-seven persons suffer serious gunshot injuries. 25 May 2006 A shooting occurs at Mercado Lama when F-FDTL erects roadblock to detain armed PNTL. One civilian is killed, two civilians are wounded.38

?

When taken together, these events form elements of a series of armed attacks perpetrated by organized groups to the degree that they may be classified as protracted. These events

37

Merriam Webster Dictionary <http://www.m-w.com/dictionary/sporadic> 38 See COI Report, pp 7-8 with detailed descriptions of each event within.

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show a gradually increasing level of armed violence between two ‘ groups’ , culminating in the PNTL massacre before international forces arrived to quell the violence. There is every indication that such armed violence would have continued had assistance not been requested by the government and arrived in such a timely manner. If the government did not expect the violence to continue (e.g. become protracted), then why was international support sought from Australia, New Zealand, Portugal, and Malaysia? The situation actually remained out of hand for a number of weeks after international forces arrived.

It should also be noted on a broader though less intense level, persistent low-intensity violence between rival east and west ethnic groups was breaking out all over Dili, further situating the events covered by the COI Report in a context of protracted, escalating armed violence – especially if one considers that this ethnic violence has apparently been ongoing since the 1940’ s.39

Despite this context, the COI Report leaned toward the view that the PNTL massacre was an isolated event.40 It indicates no fault for the exchange in Comoro leading up to the siege laid on PNTL headquarters. It also notes it is unclear as to whether the attack on PNTL headquarters was commenced by order or begun spontaneously after a warning shot was fired at an approaching truck.41

This topic is addressed in: Babo Soares, Dionisio da Costa, “Branching from the Trunk East Timorese Perceptions of Nationalism in Transition” Doctor of Philosophy Thesis, ANU, Department of Anthropology (December 2003) Chapter 8. (Copy on file with author) 40 COI Report, para 125. 41 COI Report, para. 76.

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29

While these assertions may be true, these events have to be seen as having been organized and planned to at least some degree. The soldiers positioned on the street in Comoro did not arrive there by accident, nor did those who surrounded and took up positions around PNTL headquarters. Indeed the COI itself states:
Throughout the night of 24 to 25 May the F-FDTL hierarchy armed in excess of 200 civilians and PNTL officers and moved these civilians and officers to various locations in Dili. This process was organized as a response to the perceived threat posed to F-FDTL by PNTL. … F-FDTL soldiers were sent to the ex-PKF building and told to be ready. By daylight, 84 soldiers were present at this location. This included some troops who had been stationed in Dili well before 25 May.42

Additionally an “UNPOL officer reported the presence of machine guns on the roof of the former United Nations Peacekeeping Force (PKF) building during [F-FDTL controlled and beside PNTL headquarters] the afternoon of 24 May.”

Given the circumstances, namely the arming and ordering of civilians, PNTL, and FFDTL personnel to various points in the city, including the deployment of personnel and machine guns to the site of the next day’ s siege, it is an untenable position that this was a sporadic and unplanned event. There is additional anecdotal evidence that those armed in this case were eastern Timorese, while those in the PNTL compound were from the west, connoting a further degree of organization in such ethnic violence.

While the massacre itself may have constituted a sporadic event, it cannot be viewed in isolation and must be seen as part of the organized violence and subsequent siege laid on PNTL headquarters. The massacre may have been an unforeseen consequence of that siege, but the siege itself was certainly planned. Based on these facts, it seems highly
42

COI Report, para. 73.

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likely that the events which occurred throughout May, when seen as a whole, cannot be considered to be sporadic in nature and constitute armed conflict.

The definition of “armed conflict” in Tadic also requires protracted armed violence as a prerequisite. The multiple attacks described above support the view that the opening stages of protracted armed violence were at least underway prior to the arrival of international forces, while protracted low-intensity inter-ethnic violence which had been ongoing for years is further evidence. This is further supported if some earlier events are considered as well as those in May:
? 28 April 2006 Violence erupts outside the Government Palace on the last morning of the demonstration. Two civilians are killed, four persons suffer firearm injuries, two persons suffer other serious injuries. 28 April 2006 More violence occurs at Comoro Market. One civilian is killed, eight persons suffer firearm injuries, four persons suffer other serious injuries. 28 April 2006 At Raikotu/Taci Tolu violence occurs within the F-FDTL operational area. Two civilians are killed, five civilians suffer firearm injuries. 28 April 2006 F-FDTL is deployed to assist PNTL to restore order and contain the petitioners. 1 May 2006 Joint F-FDTL Military Police and PNTL operations commence. 3 May 2006 Major Alfredo Reinado abandons the F-FDTL Military Police taking with him other military police officers, PNTL officers and weapons. 8 May 2006 Incident of violence in Gleno in which eastern PNTL officers are attacked. One officer killed, one officer seriously injured. 8 May 2006 Minister of the Interior Rogerio Lobato arms two groups of civilians - the Rai Los and Lima Lima groups - with weapons and ammunition belonging to the Border Patrol Unit (UPF) of PNTL- the Rai Los groups subsequently participates in the attack against the FFDTL base in Taci Tolu.

? ? ? ? ? ? ?

If we accept instead that a situation of protracted armed violence between organized groups existed and these events formed part of this armed conflict then Common Article 3 and Additional Protocol II are both applicable to the PNTL massacre.

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Organized Armed Groups
Per Tadic, for an armed conflict to exist, there must be a situation of armed violence between specified groups. For the case at hand, in addition to establishing that the armed violence is of a protracted nature, it must be established that the violence was between either: “governmental authorities and organized armed groups, or between such groups within a State.”43

At first blush, the determination is easy. In the PNTL massacre, the organized groups are the PNTL and the F-FDTL. Both have established structures of command and operating procedures, and certainly both were armed. However, after some research, it proved impossible to find any reference in commentary on the Geneva Conventions or in case law on how the concept of ‘ organized armed groups’ might play out when dealing with two battling institutions under a single government. Perhaps the closest cases discussing this are Pilz in the Dutch Special Court of Cassation, and Motosuke in a Temporary Court Martial of the Netherlands East Indies at Amboina.44 In both cases, the issue was

whether one could commit a war crime against their own forces, regardless of nationalities. The findings in both cases were negative, with Pilz stating that by entering into the military service of the occupying power, one removes themselves from the protection of IHL and places themselves under the laws of the occupying power, while the Motosuke case cited similar reasoning. On its face, these findings look like they

43 44

Tadic, para. 70. Both cases are cited in: Cassese at p. 48. The cases involved the nationals of the defending armies who had joined the occupiers. Once joining the occupiers, occupying forces committed what looked like war crimes against them. In both cases, it was found that armed forces cannot commit war crimes against its own members – these findings should also be borne in mind when considering the argument that “autogenocide” occurred in Cambodia.

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should apply to the PNTL massacre; after all, the parties involved were both operating under a single government as security forces, and were thus part of the same institution. If one cannot commit a war crime against a member of one’ s own armed forces, then it seems plausible, if not logical, that the same determination would apply to a nation’ s overall security apparatus, e.g. military forces committing violence against police forces. Despite this analysis, the situation in Timor-Leste is confusing and considerably difficult to analyze – and, more importantly, is distinguishable from the Pilz and Motosuke cases.

At the time violence broke out, both PNTL and F-FDTL forces contained elements of one another. That is to say, segments of the PNTL joined the F-FDTL and vice versa. Each group also armed a sizeable number of civilians while the former Minister of the Interior now stands on trial for allegedly having armed a militia group which seems to have supported the PNTL in this affair. Indeed, despite the COI Report quashing rumours they participated in the massacre of other PNTL officers, it indirectly confirmed PNTL officers had been armed and given uniforms by the F-FDTL.45

While these groupings do not seem to make sense – nor any difference based on the reasoning in Pilz and Motosuke – when one looks at the history of the two institutions, it becomes somewhat clearer. What we find is not a cut and dry division of armed organized groups split along F-FDTL-PNTL lines, but, given all the shifting of members between the two groups and the significant addition of literally hundreds of civilian exguerrilla fighters to both sides, this division fails. Instead, the common thread is ‘ ethnic’ origin.
45

COI Report, para 83.

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The F-FDTL armed civilians and PNTL officers from the eastern portion of the country, while the PNTL did likewise, but with civilians and F-FDTL members from the west. Thus, the organized armed groups become organized armed groups of ‘ easterners’ and ‘ westerners’ , both containing elements of the state security forces, rather than dual branches of the single nation’ s security forces. These ‘ armed groups’ , while perhaps disaggregated, remained organized along east-west ethnic lines – not along PNTL-FFDTL lines – and perpetrated all of the protracted violence events listed above. They also fit broadly into divisions along which protracted low-intensity conflict between eastwest factions had been occurring since the 1940’ s.

This following explains how this came about. Speaking specifically of the F-FDTL, there was a failure to properly (or equitably) integrate former guerrilla fighters into the forces. This led to simmering discontent by those excluded from the F-FDTL – and those westerners who were included, but discriminated against. Underlying this failure is a larger issue, as Rees, a former UNTAET staff member, warned over 3 years ago:
Early decisions regarding demobilisation and establishing the defence force and police services were made in a spirit of political and practical expediency rather than with a view to the long-term development of East Timor. A few UN officials in conjunction with a narrow section of the East Timorese leadership guided the process. This resulted in institutions that are characterised by many in East Timor as being illegitimate. This is clearly a dangerous equation. Old divisions in the anti-Indonesian resistance movement are being institutionalised in the new East Timorese state with one political grouping [President Gusmão's allies] finding a home in the defense force and dissidents [under the patronage of the Minister for Internal Administration] likely finding a home in the police service, and some elements of local government.46

The result was a command structure within the F-FDTL largely dominated by those from the east, with those from the west generally feeling discriminated against without
46

Edward Rees. “The UN's failure to integrate Falintil veterans may cause East Timor to fail.” Online Opinion Australia. (Tuesday, September 2003) <http://www.onlineopinion.com.au/view.asp?article=666> (Accessed April 10, 2006)

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opportunity for advancement within the forces. The last four commanders of the guerrilla forces were Taur Matan Ruak (Baucau), Lere Anan Timor (Lospalos), Falur Rate Laek (Viqueque) and Ular Ryhyk (Viqueque) – all from the eastern portion of the country. Three of these Commanders were subsequently awarded prestigious positions within the F-FDTL: Chief of the Defence Force, Brigadier General Taur Matan Ruak; Chief of Staff, Colonel Lere Anan Timor; First Battalion (Heroes Battalion) Commanding Officer, Lt. Col. Falur Rate Laek. These F-FDTL commanders – all from the east – were seen to be interfering in the civilian democratic process and making politically charged and divisive east-west statements to the press.47

This situation seems to have directly precipitated the Petitioner’ s complaints, centering on poor conditions of service,48 promotion irregularities (or lack of promotion), and alleged discrimination by senior eastern officers against western officers and soldiers (e.g. the Petitioners). A letter of complaint singled out a high ranking eastern-F-FDTL Commander (whose name was not released) for his public humiliation of western subordinates, referring to them ‘ sons of pro-Indonesia militia’ , an obvious insult for those who sacrificed many years of their lives in service of independence.

After finally being dismissed over their complaints, subsequent protests and violent events saw two ruptures. First, there was a split between F-FDTL members along east47

Rees, Edward. "Security-sector Reform and Transitional Administrations." Conflict, Security and Development (2002). (Security-sector Reform). 48 It should be noted the overall service conditions with in the F-FDTL were far from ideal. All members suffered poor service conditions, however the addition of discrimination and perhaps some provocations by political figures, made this situation untenable for the Petitioners. See generally: “On the Findings of the Independent Inquiry Commission (IIC) for the FALINTIL-FDTL” Palácio das Cinzas, Dili, 24 August 2004. Copy on file with author.

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west lines. Gastão Salsinha, spokesperson for the Petitioners, expressed concerns that easterners – including top military officers – had accused the dismissed men of being aligned to pro-Indonesian militias. Salsinha also noted some of those making the

accusations against his men were given rifles; "What are they for? We are worried about this[.]"49 Subsequent events entirely confirmed these fears.

Second, the already strained and politicized relationship between the PNTL and F-FDTL as institutions failed entirely.50 The population and officers within both forces had

already expressed concerns about differential treatments and inequalities within and between the forces. Friction between them began as early as 2002, accompanying the appointment of Rogerio Lobato as Minister of the Interior – the same Minister now accused of having armed civilians.51 Efforts to undermine F-FDTL in 2001 by dissidents, and subsequent attempts to politicize the police by the same dissidents were followed by a rise in direct and indirect clashes between PNTL and F-FDTL in 2002 and 2003.52 As Minister of the Interior, Lobato expanded his PNTL fiefdom in terms of budgetary allocations over the F-FDTL, the role of the PNTL expanded to countering cross-border incursions and suppressing of rural domestic and cross border ‘ insurgents’ – clearly

49

Lindsay Murdoch. "East Timor tense as soldiers desert barracks" Sunday Morning Herald Australia- Dili (March 30, 2006) Archived on UNOTIL Media Monitoring Site. <http://www.unotil.org/UNMISETWebSite.nsf/cce478c23e97627349256f0a003ee127/9c40fe839a2781eb4 9257141003c2c91?OpenDocument> (Accessed April 10, 2006) 50 “On the Findings of the Independent Inquiry Commission (IIC) for the FALINTIL-FDTL” Palácio das Cinzas, Dili, 24 August 2004. (Copy on file with author) 51 Edward Rees. "Under Pressure: FALINTIL- Forcas de Defesa de Timor-Leste. Three Decades of Defence Force Development in Timor-Leste." Working Paper No. 139, Geneva Centre for the Democratic Control of Armed Forces (DCAF) (Geneva, April, 2004) (Under Pressure) <http://www.dcaf.ch/publications/Working_Papers/139.pdf> (Accessed January 24, 2007). 52 Ibid.

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treading upon defence policy which was legislatively established F-FDTL domain.53 Lobato also equipped the PNTL with heavy military hardware, raising concerns among observers. It was some of these heavy HK33 semi-automatic rifles legally distributed to Border Patrol Units which found their way into the hands of the Railos militia group, allegedly armed by Lobato.54 Significantly, Lobato took many of the westerners denied entry into the F-FDTL, and allowed them to join ‘ his’ PNTL; the PNTL has been noted as being largely composed of western East Timorese – many of them former Indonesian police officers – while the F-FDTL comprised largely of easterners.55

Following this analysis of the two organized armed groups, if the distinction between them as security forces under a unified command fails to invoke IHL, per Pilz and Motosuke, then the east-west organized armed groups, though admittedly a novel argument, seems likely to pass this requirement.

Nexus to Armed Conflict
As contributed by the Kunerac decision of 2002,56 the final stage of this first prong in the test requires a nexus between the impugned action and an armed conflict. That is to say
the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’ s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. 57

53 54

Ibid. During the recent crisis, even politicians were filmed carrying the PNTL’ s‘ Steyr Stg.77 AUG assault rifles’for personal “defence”- how they got them is an intriguing question… 55 Sven Gunnar Simonsen. “The Authoritarian Temptation in East Timor: Nationbuilding and the Need for Inclusive Governance (2005) (Simonsen) <http://caliber.ucpress.net/doi/pdf/10.1525/as.2006.46.4.575> (Accessed January 24, 2007). 56 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic. Appeals Chamber Decision, International Criminal Tribunal for Yugoslavia, 12 June 2002. (Kunarac)

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The impugned action cannot simply occur in a situation of armed conflict and be considered a ‘ war crime’ . The nexus requirement is intended to avoid capturing what would ordinarily be considered basic crimes committed in times of peace (e.g. robbing a store v. plunder; or murdering someone v. war crime), and is reciprocal to a similar nexus requirement to extend applicable IHL across a territory. It is an important requirement because once a situation of ‘ armed conflict’ is established, this determination covers the entire territory.58

According to the ICTY in Kunerac,
if it can be established … that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude his acts were closely related to the armed conflict.59

To this end, in Kunerac the court established a series of considerations in determining this connection:
? ? ? ? ? The fact that the perpetrator is a combatant; The fact that the victim is a non-combatant; The fact that the victim is a member of the opposing party; The fact that the act may be said to serve the ultimate goal of a military campaign; And the fact that the crime is committed as part of or in the context of the perpetrator’ s official duties.60

Applying the first three considerations to the PNTL massacre is relatively straightforward. If we accept that previous considerations establish this as taking place in a non-international situation of armed violence between organized armed groups, then the alleged perpetrator/s were combatants as they belonged to one of the organized armed

Kunarac, para 58. Tadic, para 69. 59 Kunarac, para 58. 60 Kunarac, para 59.
58

57

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groups, either as members of the F-FDTL, and/or as an easterner in terms of ethnicity (depending on how one defines the organized groups, as discussed above).

As established above in the section “Prohibited Actions against Protected Persons”, if the COI Report’ s description of the ceasefire agreement is accurate, then the agreement itself required the PNTL to put themselves hors de combat and march to UN headquarters, while those remaining behind would remain subject to further attack. Those in the UN column, having been disarmed as per the agreement, can necessarily be viewed as hors de combat, or non-combatants, as previously shown.

Likewise, in this case the victim was a member of an organized armed group, namely the PNTL and/or as a westerner (again depending on how one defines the groups). This group of PNTL and/or westerners having been attacked at the PNTL headquarters, and having launched multiple attacks against the F-FDTL, can clearly be designated as an opposing party. Since the victims formed part of this opposing group, the victims were necessarily ‘ members of the opposing party’ .

The last two considerations are more complex with regard to this situation, for it is unclear as to what the ultimate goal of the ‘ campaign’was, and whether there was indeed a campaign at all. If the ultimate goal of the F-FDTL campaign was to suppress what they perceived to be violence against the state as perpetrated by the PNTL, attacking and forcing the PNTL to surrender could be seen as serving this campaign goal. However, as

39

discussed previously, both forces were jumbled and divided into broadly ethnic-based groups, rather than security institution-based groups.

There are some anecdotal reports that the overall goal behind organized violence and destruction was to push easterners out of their homes, the markets, and finally out of Dili, back to countryside Districts from which they came pre-1999.61 If this was the ultimate goal of the westerners (PNTL), then it might be surmised the campaign goals for easterners (F-FDTL et. al) was to resist this push by westerners. Thus if the massacre was carried out in this context, it could be said that it was part of that campaign designed to intimidate and perpetrate violence against westerners to prevent them from forcing easterners from the city.

The final consideration, namely that the crime is committed as part of or in the context of the perpetrator’ s official duties, seems to be met easily. If we consider the perpetrators to have been part of the F-FDTL, as opposed to belonging to the larger ethnically easterner group, then this is a straightforward analysis. Within the F-FDTL, they were wearing their uniforms, carrying their F-FDTL issued rifles, were at the intersection on orders, and had ceased fire upon receiving further order to do so from F-FDTL Commander Matan Ruak. Considering these factors show the perpetrators were on official duty and remained within the chain of command at the time of the massacre, it shows clearly any actions they carried out in this situation would be carried out within the context of their

61

Harrington, Andrew. “Ethnicity, Violence, & Land and Property Disputes in Timor-Leste” East Timor Law Journal ETLJ 2, 2007, p. 46. <http://www.eastimorlawjournal.org/ARTICLES/2007etlj21EthnicityViolenceLandandPropertyDisputesin Timor-LesteAndrewHarrington.html> (Accessed October 9, 2007)

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official duties as soldiers. Were they not, then there would have been no ceasefire order from above to be violated.

Once again, the situation becomes less clear if we consider the perpetrators to have been deployed not as part of official F-FDTL duties, but rather as part of the overarching eastern-based force. If this is the case, then what official duties those perpetrators might have had is beyond the scope of evidence available to the author at the time of writing. In-country field interviews would be helpful in this regard. An alternative method to

Kunarac to hold one responsible for war crimes is discussed in the 2000 Niyonteze case in the Swiss Appellate Military Tribunal. In this case it was found that crimes committed by civilians against other civilians may be considered war crimes if the required nexus to armed conflict exists. The tribunal held
[a]nyone, whether military or civilian, who attacks a civilian protected by the Geneva Conventions … breaches those conventions and falls under Article 109 of the Swiss Penal Military Code [providing for the punishment of war crimes]”62

This case differs from some of interpretations in the ICTR, but offers a possible alternative interpretation of the situation in question which might allow for prosecution of civilians – if it is accepted that F-FDTL forces are considered as easterners, rather than the state military apparatus.

Regardless of the uncertain nature of the last two considerations from Kunarac, not all need to be met. The first three criteria are convincing enough in demonstrating a

sufficient nexus with the conflict. Having established the first prong of the test in the affirmative, namely that the violation constitutes an infringement of a rule of
62

Case cited in: Cassese p. 50.

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international humanitarian law, that being at a minimum Common Article 3 of the Geneva Conventions, and possibly, Additional Protocol II regarding those conventions, it is possible to continue on to the final three, less complicated prongs.

2. The Rule Violated Must Be Customary in nature or, if it Belongs to Treaty Law, the Required Conditions Must Be Met

This portion of the test is likely the easiest to establish.

Following Kunarac, “the

determination of what constitutes a war crime is … dependent on the development of the laws and customs of war at the time when an act … was committed”63 or otherwise stated, the status of customary international laws of armed conflict. This is in line with the customary legal principle of nulla crimen sine lege, that is to say, no crime committed, and no punishment meted out, without a violation of law as it existed at the time. The court went on to find that, in accordance with Article 3 of the statute of the ICTY, ‘ serious violations of Common Article 3 of the Geneva Conventions’ as customary law would necessarily satisfy all four prongs of the test established in Tadic and constitute a war crime.

If the analysis of the first prong of the Tadic test is accepted, along with the violation of Common Article 3’ s prohibitions of (a) violence to life and person, in particular murder

63

Kunarac, para 67.

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of all kinds, mutilation, cruel treatment and torture; and possibly (c) outrages upon personal dignity,64 then because the Geneva Conventions are regarded as customary international law,65 the nulla crimen sine lege requirement is satisfied.

Alternatively, if this is insufficient, then one may refer to the statute of the now-defunct Serious Crimes Panel for Timor-Leste as an indication of how the rule has been present in Timor-Leste:
Section 6 War crimes 6.1 For the purposes of the present regulation, "war crimes" means: (c) In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading 66 treatment;

In Tadic, it was also argued that because Common Article 3 forms the basis of protections offered in Additional Protocol II, that Protocol II should also be considered as customary international law, but this was not proven definitively.67 Regardless, even were an argument mounted that the Geneva Conventions and Additional Protocol II do not form part of customary international law, this is insufficient to negate the determination. On the 8th of May, 2003, the Government of Timor-Leste formally

acceded to all four Geneva Conventions and both Additional Protocols on the 12th of

64 65

Common Article 3. Tadic, para 98. 66 UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. UNTAET/REG/2000/15 67 Tadic, para 117.

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April, 2005. Timor-Leste also acceded to the ICC on September 6th, 200268 – the ICC statute’ s wording was the basis for the statute of the Serious Crimes Panel for TimorLeste, extracted above. If the principles and prohibitions set out in the ICC statute (a treaty acceded to by Timor-Leste) are taken into account (namely article 8 (2) (c)) a section of the Constitution of Timor-Leste is of relevance:
2. Rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor following … accession by the respective competent organs ...69

Thus, if we accept that there has been a breach of Common Article 3, and/or Additional Protocol II, and that the pre-conditions for their application has been met, then regardless of customary international law, accession to ICC’ s Statute and the Geneva Conventions means this portion of the test has also been passed; these Conventions are given effect in the territory of Timor-Leste by virtue of the Timorese Constitution.

3. Grave or Serious Breach of the Applicable International Rule

The third prong of the test requires the violation in question to be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim.

68

Rome Statute of the International Criminal Court. Rome, 17 July 1998. United Nations Treaty Database. <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty11.asp> 69 Constitution of the Democratic Republic of Timor-Leste (May 20 2002) Part I, Section 9, ss. 2). <http://www.constitution.org/cons/east_timor/constitution-eng.htm> (Accessed January 24, 2007)

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At the lower end of the spectrum of ‘ seriousness’ , Tadic provides an example:
a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious violation of international humanitarian law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by any army occupying an enemy territory;70

When the episode above is compared against the PNTL massacre, it indicates strongly to the massacre being at the more-serious end of the spectrum. Some good points to look for in determining whether there has been a “serious” breach include serious consequences for the victim and the violation of important values.

Using these indicators, we find there were serious consequences for the victims; they are dead, and those lucky enough to survive suffered serious gunshot wounds, not to mention the mental trauma which undoubtedly accompanies a mass murder of this scale.

The PNTL massacre also seriously violated values deemed important and ‘ civilizing’ by the international community, namely those enshrined in Common Article 3 to the Geneva Conventions in article (a) violence to life and person, in particular murder of all kinds as perpetrated against those who are hors de combat. As noted above, Common Article 3 is considered customary international law, however, if this is insufficient to establish it enshrines values of international import, one need only peruse the statutes of the international criminal tribunals, the ICC, and a variety of hybrid courts; all of these tribunals have jurisdiction to prosecute offenders for serious violations of Common Article 3 to the Geneva Conventions.71.

70

Tadic, para 94. See: Article 3 of the Special Court for Sierra Leone; Article 6 of the Extraordinary Chambers in the Courts of Cambodia; Article 4 of the International Criminal Tribunal for Rwanda; Article 2 of the
71

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Given that the prohibition against murder of those hors de combat is enshrined in both customary international law and the statutes of so many internationally based tribunals in combination with such “serious” consequences for the victims (e.g. death), this portion of the test has been met.

4. The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule

As noted above, in both customary and criminal tribunal law, the breach of Common Article 3 is considered serious, and in the following tribunals whose statutes are listed below, carry individual criminal responsibility. It should be noted that after the Tadic decision, “grave breaches” of the Geneva Conventions of 1949 necessarily will include such breaches of Common Article 3, attracting individual criminal responsibility:

The question of individual criminal responsibility is answered simply by looking at the statutes of various modern international criminal tribunals. Individual criminal

responsibility for grave or serious breaches of the international humanitarian law is found
International Criminal Tribunal for Yugoslavia; Section 6 of the Serious Crimes Panel for Timor-Leste; and Article 8 of the Rome Statute of the International Criminal Court.

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in: Article 6 of the Special Court for Sierra Leone;72Article 29 of the Extraordinary Chambers in the Courts of Cambodia;73 Article 6 of the International Criminal Tribunal for Rwanda;74 Article 7 of the International Criminal Tribunal for Yugoslavia;75 Section 14 Serious Crimes Panel for Timor-Leste;76 and perhaps most importantly, Article 25 of the Rome Statute of the International Criminal Court.77

While a number of years ago, it may have been necessary to conduct a lengthy survey of international law and the domestic laws of many nations, given the number of international and hybrid tribunals who have assigned individual criminal responsibility for breaches of the Geneva Conventions (including Common Article 3), there can be no question as to individual criminal responsibility in this case; violence to life, person, and murder of all kinds against those who are hors de combat is prohibited under the conditions established in the enumerated statutes.

Statute of the Special Court for Sierra Leone <http://www.sc-sl.org/scsl-statute.html> 73 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea NS/RKM/0801/12 74 Statute of the International Criminal Tribunal for Rwanda. Security Council resolution 955 (8 November, 1994) 75 Statute of the International Criminal Tribunal for the Former Yugoslavia <http://www.un.org/icty/legaldoc-e/basic/statut/statute-feb06-e.pdf> 76 UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. UNTAET/REG/2000/15 77 Rome Statute of the International Criminal Court. A/CONF.183/9. Public Information and Documentation Section of the ICC Maanweg, The Hague. (Rome Statute)

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Command Responsibility
These Statutes also permit for the establishment of command responsibility for actions conducted a given command under a certain set of conditions, as perhaps best stated in article 28 of the ICC statute:
Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

While it is tempting to attach command responsibility to Brigadier General Taur Matan Ruak, there is insufficient evidence that he was aware or ought to be aware of what was to occur (indeed even if he was in overall control of the ‘ eastern’ armed and organized group as a whole). To the contrary, Matan Ruak “gave his officers the order to cease fire,” while “Colonel Lere [under orders from Mata Ruak] sent runners to communicate the order to the soldiers not within earshot.”78 Additionally, when approached by UN Chief Military Training Adviser, Colonel Reis, “Brigadier General Ruak … apologized for the shooting.79

78 79

COI Report, Para 80 COI Report, Para 85

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Based on this account, the COI found Matan Ruak “cannot be held criminally responsible for the shooting of PNTL officers by F-FDTL soldiers after the ceasefire had been established on 25 May.” The COI’ s standard of proof to establish responsibility for recent violence was not done at the higher criminal standard of ‘ proof beyond a
80 reasonable doubt’ , but rather to the standard of ‘ reasonable suspicion.’ Given the lax

standard of proof, it is reasonable to accept the COI’ s finding in this matter, though this may be the subject of future debate. There is insufficient evidence available to make a proper determination on command responsibility in this case.

Final Consideration: Mental Element
In order to establish individual criminal responsibility in the affirmative, it is necessary to confirm the necessary mens rea component for the offence/breach in question. Looking at the International Committee of the Red Cross’ commentary on Common Article 3, the main goal behind the article is to guarantee humane treatment and thereby to prohibit any conduct incompatible with that aim.81 It therefore notes, that “to this end, the following acts ‘ are’ and ‘ shall remain prohibited at any time and in any place whatsoever... ‘ ”No possible loophole is left; there can be no excuse, no attenuating circumstances.”82 Thus, once it is determined one is protected under Common Article 3 (e.g. hors de combat), there is an absolute prohibition of acts violence against them – particularly murder.

80

COI Report, Para 12 Commentary on Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, p. 53. <http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument> 82 Commentary on Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, p. 53. <http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument>
81

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The mental element required for such a violation to be criminal is knowledge, as implicit in Common Article 3: the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons. Thus the alleged perpetrator must have knowledge that the action is being committed against one of the above-mentioned persons.

In particular for the PNTL massacre, this requires that the alleged perpetrators knew the victims were indeed hors de combat, in addition. As analyzed above, there was some confusion on whether the PNTL were actually hors de combat, objectively speaking, it appeared nearly impossible that anyone could have doubted that the PNTL were hors de combat for the reasons discussed above, namely the ceasefire order, the advertised disarming of the PNTL, and the significant UN presence all speak to this; that one of the soldiers thought to be responsible admitted to have participated in the shooting and cited his anger over the killing of Ricardo Ribeiro Bure after the ceasefire supports an argument that he may have acted regardless of any knowledge he had that the PNTL were hors de combat.83

Barring this interpretation, Cassese argues that even when international do not provide the required mental element – even implicitly as in Common Article 3 – that the appropriate mens rea requirement at a minimum is recklessness, and in some cases intent.84 Applied to our situation, recklessness (dolus eventualis) would require the

83 84

COI Report, para 85 Cassese, at p 58.

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suspected perpetrators to open fire, knowingly under the risk that the PNTL officers were actually hors de combat rather than legitimate combatants. Given the circumstances of the ceasefire previously established, even to the uninitiated objective observer, a reasonable doubt that the PNTL were combatants would have arisen; one can only imagine how the situation must have appeared to a professional soldier very recently trained in IHL by Australian trainers.

Instead of being cautious in this regard, the soldier who commenced shooting “appeared to be agitated and searching for someone among the police officers.”85 When approached by UNPol trainer Mr. Malik who was attempting to speak to this soldier, “the soldier sidestepped and fired into the policemen.”86 This clearly shows that despite the obvious risk that the PNTL were hors de combat, this soldier not only knowingly ignored that risk and opened fire, but did so intentionally.

It is also hard to imagine a situation in which opening fire at near point-blank range with an M-16 rifle on fully automatic would not run the risk of violence to life or murder as proscribed by Common Article 3. Indeed, Commentary on Common Article 3 seems to indicate that there is an obligation to err on the side of caution when faced with a questionable situation, stating there can be no excuse, no attenuating circumstances in carrying out such prohibited actions, as discussed above.87

85 86

COI Report, para 85. COI Report, para 85. 87 Commentary on Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, p. 53. <http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument>

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In light of what was almost certain knowledge among F-FDTL troops that the PNTL were hors de combat, this determination satisfies the final prong of the test from Tadic, indicating a finding that a war crime has occurred may well be warranted in this case.

Conclusion
If one accepts the finding that the PNTL massacre could indeed constitute a violation of Common Article 3 to the Geneva Conventions and therefore a war crime, then a question arises as to how to prosecute.

The COI Report recommends that this/these crimes be prosecuted on a national level. In light of the COI Report’ s other findings, namely that the situation was largely due to a complete lapse in the rule of law and malfunctioning justice system, a hybrid tribunal has been suggested. In cases of a sensitive nature requiring the utmost impartiality, the COI Report recommends this be undertaken jointly between two international judges and one Timorese judge to provide cultural context. As noted above however, the COI recommends the accused in this case be tried for murder, not violation of international laws of armed conflict, or war crimes. If the above finding is correct and the events did constitute a war crime, then to charge these offenders with ‘ plain vanilla murder’ raises a number of issues.

First, looking at the Constitution of Timor-Leste, section 9 states:
1. The legal system of East Timor shall adopt the general or customary principles of international law. 2. Rules provided for in international conventions, treaties and agreements shall apply in the internal legal system of East Timor following … accession ...

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3. All rules that are contrary to the provisions of international conventions, treaties and agreements applied in the internal legal system of East Timor shall be invalid.88

It is as of yet unclear how far reaching this constitutional obligation is in Timor-Leste, but at a minimum, it appears to uphold an assertion that war crimes must be punished as violations of international and customary international law. This premise is supported by all four Geneva Conventions which provide for the prosecution and punishment of war crimes as breaches of IHL; Art. 49 of Geneva Convention I, Art. 50, Geneva Convention II, Art. 129 Geneva Convention 3, and Art. 146 Geneva Convention 4.89 This is further supported in paragraph 6 of the Preamble to the ICC statute, which states “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes … ”

As noted above, Timor-Leste has acceded to all the Geneva Conventions, and one of the first actions taken as a fully sovereign nation was to accede to the Rome Statute. If it is accepted that a war crime has been committed in accordance with the test established in Tadic, namely i) the violation must constitute an infringement of a rule of international humanitarian law,90 then as a breach of international law established as an international crime in multiple statutes to which Timor-Leste has acceded, following the Timorese Constitution (which requires the adoption of general or customary principles of international law, and that rules provided for in international conventions, treaties and

88

Constitution of the Democratic Republic of Timor-Leste (May 20 2002) Part I, Section 9. (The Constitution)<http://www.constitution.org/cons/east_timor/constitution-eng.htm> (Accessed March 13, 2006) 89 “Contracting parties are obliged to search for persons alleged to have committed, or to have ordered to be committed grave breaches, and shall bring such persons irrespective of their nationality before their own courts. Can also hand them over to other high-contracting countries, provided recipient country makes out a prima facie case.” 90 Tadic, para. 94.

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agreements apply in the internal legal system of Timor-Leste), there exists a constitutional obligation to prosecute the PNTL massacre as a violation of IHL, and not as plain ‘ murder’ .

While prosecuting this crime as generic murder appears to breach constitutional requirements (whether through a special hybrid tribunal or the internal legal system) it also is a mitigation of the seriousness of the crimes committed. IHL is intended to espouse and protect values the international community considers important and worthy of protection. Thus, failing to prosecute the crimes as violations of IHL would fail to send a strong message to the Timorese that such actions will never be tolerated in their country again. This is of extreme importance in the wake of the Indonesian occupation, during which literally thousands of such violations are alleged to have occurred – not only committed by Indonesians, but by Timorese as well. Precedent must be set in Timor-Leste for future behaviour. To do so is entirely in line with the goal of further international protections for individual human beings from violations of international law, as stated by the ICTY in Tadic.

It should be mentioned that arrests have been made in this matter as of early January. While unreported in the media, according to UN staff workers, soldiers identified by the COI Report as those responsible for the PNTL massacre were indicted on simple charges of murder, not war crimes. The outcome of their trial, and the format of that trial, remains unknown. Given the sensitivities and fragility of the country and its minimallyfunctioning legal system, it is likely trying these men in Timor-Leste will likely

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precipitate further violence, rather than help any ongoing attempts at national reconciliation.

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