war crimes in timor 25 th of may 2006 massacre & war crimes in timor-leste

7/30/2019 War Crimes in Timor 25 th of May 2006 Massacre & War Crimes in Timor-Leste

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25 th of May 2006 Massacre &

War Crimes in Timor-LesteJanuary 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: [email protected]


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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 R OUND 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

R EQUISITE ACTION ............................................................................................................................. 21 PROHIBITED ACTIONS AGAINST PROTECTED PERSONS .......................................................................... 23 APPLICABILITY OF R ULES ................................................................................................................... 26 EXISTENCE OF A RMED CONFLICT .................................................................................................... 27 ARMED VIOLENCE : SPORADIC OR PROTRACTED ? ................................................................................. 27 ORGANIZED ARMED GROUPS .............................................................................................................. 32

NEXUS TO ARMED 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 R ESPONSIBILITY ................................................................................................................ 48

FINAL CONSIDERATION: MENTAL ELEMENT .............. ............. ............. ............. ............. ....... 49

CONCLUSION..................................................................................................................................... 52


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IntroductionEarly 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 (F-

FDTL) 1 but spread quickly. One incident in particular which occurred during the recent

unrest stands out above others for its brutality.

On May 25 th, 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 authors 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 Indonesias brutal 24-year occupation, such horrific actions

1 F-FDTL is the acronym for Falintil (Foras Armadas de Libertao Nacional de Timor-Leste)-Foras deDefesa de Timor Leste. (Armed Forces of the National Liberation of East Timor-East Timor DefenceForce)


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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-Leste 2, 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 Timor-

Leste, 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 ineffect 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 23 rd,

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, thedecision was endorsed by then Prime Minister Mari Alkatiri.

On the 23 rd of March, President Xanana Gusmo addressed the nation stating that the

dismissal was within the competency of the Matan Ruaks domain, but also that the

decision was unjust. The President, using the Petitioners 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 25 th and 31 st, 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 Lorosae, archived on UNOTIL Daily Media Review (February 23, 2006) (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 26 th market stalls and properties belonging to easterners

were attacked. The final demonstration on April 28 th 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 situationand withdrew. Public order and security deteriorated rapidly. This violence spread to

Dilis 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. Ten

thousand people were initially displaced.

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 Ministers 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 SBS 4 reporter David OShea in Fatu Ahi, a group of F-

FDTL 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 OShea, 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

Reinados men strategically placed in ambush formation in a locale they knew the F-FDTL 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 FRETILIN 5 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 Liquia, Abilio

4 The Australian Special Braodcasting Service.5 Frente Revolucionria de Timor-Leste Independente (Revolutionary Front for an Independent EastTimor).


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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 Quest ion

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 InquiryAs a result of PNTL attacks on the Taci Tolu military base and the Brigadier Generals

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 theHigh Commissioner of Human Rights (Geneva, 2 October 2006), paras 71-85. (COI Report). (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 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.


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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, F-

FDTL 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. Tothe 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 tohim, 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. Amarals friend had just been killed by PNTL.


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Shooting of PNTL officers83. 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 F-

FDTL 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 F-

FDTL 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,

Jos 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 countrys 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 COI Report, paras. 125 & 126.8 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 massacredescribed 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 ICCs

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 increasinginter-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-partystates to remain aloof, owing to economic, political, and ideological reasons;

4. The change from a state-sovereignty approach at international law graduallytoward a human being-oriented approach:

11 Cassese, Antonio. International Criminal Law. (Oxford University Press, 2003) at p. 47. (Cassese)12 Statute of the International Criminal Tribunal for Rwanda. Security Council resolution 955 (8 November,1994).13 Statute of the Special Court for Sierra Leone14 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecutionof Crimes Committed during the Period of Democratic Kampuchea NS/RKM/0801/1215 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 iscreated for the benefit of human beings) has gained a firm foothold in the internationalcommunity as well. It follows that in the area of armed conflict the distinction betweeninterstate 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 wantondestruction of hospitals, churches, museums or private property, as well as proscribeweapons 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 armedviolence 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 tothe protection of human beings, it is only natural that the aforementioned dichotomyshould gradually lose its weight. 16

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) the violation must constitute an infringement of a rule of international humanitarian law;ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions

must be met ;iii) 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 thevictim. ;

iv) the violation of the rule must entail, under customary or conventional law, the individualcriminal responsibility of the person breaching the rule. 17

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

16 Prosecutor v. Dusko Tadic a/k/a Dule. Decision on the Defence Motion for Interlocutory Appeal onJurisdiction (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).

Art ic le 3 , Comm on to the Geneva Convent ions

(1) Persons taking no active part in the hostilities, including members of armed forces who havelaid 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 onrace, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end thefollowing acts are and shall remain prohibited at any time and in any place whatsoever withrespect to the above-mentioned persons:

18 ICRC Commentary on Protocol Additional to the Geneva Conventions of 12 August 1949, and relatingto the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977) at 4457.


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

Ad dit ion al Proto col II to the Geneva Conv entions 1977

Part II. Humane TreatmentArt 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 andconvictions and religious practices. They shall in all circumstances be treated humanely, withoutany 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 personsreferred 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

Requis i te A ct ion

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

19Common Article 3 to:

Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces inthe Field. Geneva, 12 August 1949.Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and ShipwreckedMembers 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 August1949. (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 theCommission 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 COIs 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


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Prohib i ted Act ion s agains t Pro tected 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 havelaid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause 22

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 restricted 23

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 betaken by the United Nations officers and any PNTL officer who remained behind would be subjectto a new attack. The Brigadier General gave his officers the order to cease fire. Colonel Lere sentrunners 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

22 Common Article 3.23 Additional Protocol II, art. 4.24 COI Report, para 80.


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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 PNTLofficers 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 humanitarianassistance or peacekeeping mission in accordance with the Charter of the United Nations, as longas they are entitled to the protection given to civilians or civilian objects under the internationallaw 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 COI Report, para 83.26 COI Report, para 83.


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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 COI Report, para 82.28 COI Report, para 82.


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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, noattenuating 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

App l icab i li ty o f 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:

29 COI Report, 85.30 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.Commentary, p. 38.31 Common Article 3.32 Protocol Additional II


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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 conflictshall be bound to apply, as a minimum, the following provisions 33

b. Additional Protocol II: 2. This Protocol shall not apply to situations of internal disturbancesand tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 34

Exis tence of Arm ed Conf lic t

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 armedviolence between governmental authorities and organized armed groups or between such groupswithin a State. International humanitarian law applies from the initiation of such armed conflictsand 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.

Arm ed Vio lence: Sporad ic o r Pro t racted?

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 armedconflicts. 36

33 Common Article 3.34 Additional Protocol II, art. 4.35 Tadic, para. 70.36 Additional Protocol II, art. 1.


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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 saidof 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 iskilled, two persons are injured.

? 25 May 2006 The house of in-laws of Minister of the Interior Lobato is burnt. Six civilianstrapped 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 escortedunder United Nations protection. Nine persons are killed, twenty-seven persons suffer seriousgunshot injuries.

? 25 May 2006 A shooting occurs at Mercado Lama when F-FDTL erects roadblock to detainarmed 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 Dictionary38 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-intensityviolence 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 1940s. 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

39 This topic is addressed in: Babo Soares, Dionisio da Costa, Branching from the Trunk East TimoresePerceptions 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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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 andPNTL officers and moved these civilians and officers to various locations in Dili. This processwas 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 soldierswere present at this location. This included some troops who had been stationed in Dili well before25 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 F-

FDTL personnel to various points in the city, including the deployment of personnel and

machine guns to the site of the next days 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 personssuffer other serious injuries.

? 28 April 2006 More violence occurs at Comoro Market. One civilian is killed, eight personssuffer 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 PatrolUnit (UPF) of PNTL- the Rai Los groups subsequently participates in the attack against the F-FDTL 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 Arm ed 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 Tadic, para. 70.44 Both cases are cited in: Cassese at p. 48. The cases involved the nationals of the defending armies whohad 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 itsown members these findings should also be borne in mind when considering the argument that auto-genocide 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 ones own armed forces, then it

seems plausible, if not logical, that the same determination would apply to a nations

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 oneanother. 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 ex-

guerrilla 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 nations security forces. These armed groups, while perhaps

disaggregated, remained organized along east-west ethnic lines not along PNTL-F-

FDTL lines and perpetrated all of the protracted violence events listed above. They

also fit broadly into divisions along which protracted low-intensity conflict between east-west factions had been occurring since the 1940s.

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 serviceswere made in a spirit of political and practical expediency rather than with a view to the long-termdevelopment of East Timor. A few UN officials in conjunction with a narrow section of the EastTimorese leadership guided the process. This resulted in institutions that are characterised bymany in East Timor as being illegitimate. This is clearly a dangerous equation. Old divisions inthe anti-Indonesian resistance movement are being institutionalised in the new East Timorese statewith one political grouping [President Gusmo's allies] finding a home in the defense force anddissidents [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. OnlineOpinion Australia. (Tuesday, September 2003) (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 Petitioners 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 east-

47 Rees, Edward. "Security-sector Reform and Transitional Administrations." Conflict, Security andDevelopment (2002). (Security-sector Reform).48 It should be noted the overall service conditions with in the F-FDTL were far from ideal. All memberssuffered 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 theIndependent Inquiry Commission (IIC) for the FALINTIL-FDTL Palcio das Cinzas, Dili, 24 August2004. Copy on file with author.


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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 thearmed conflict, it would be sufficient to conclude his acts were closely related to the armedconflict. 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 perpetrators

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

57 Kunarac, para 58.58 Tadic, para 69.59 Kunarac, para 58.60 Kunarac, para 59.


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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 Reports 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


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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 designedto 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 perpetrators 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. (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 casein 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 3s 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 6War crimes6.1 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 3common to the four Geneva Conventions of 12 August 1949, namely, any of the following actscommitted against persons taking no active part in the hostilities, including members of armedforces 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, crueltreatment and torture;(ii) Committing outrages upon personal dignity, in particular humiliating and degradingtreatment; 66

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 8 th of May, 2003, the Government of Timor-Leste formally

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

64 Common Article 3.65 Tadic, para 98.66 UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. UNTAET/REG/2000/1567 Tadic, para 117.


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April, 2005. Timor-Leste also acceded to the ICC on September 6 th, 2002 68 the ICC

statutes wording was the basis for the statute of the Serious Crimes Panel for Timor-

Leste, 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 theinternal 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 ICCs 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 TreatyDatabase.69 Constitution of the Democratic Republic of Timor-Leste (May 20 2002) Part I, Section 9, ss. 2). (Accessed January 24, 2007)


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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 CommonArticle 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; andArticle 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 responsibilityfor 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.

72 Statute of the Special Court for Sierra Leone73

Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecutionof Crimes Committed during the Period of Democratic Kampuchea NS/RKM/0801/1274 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 Yugoslavia76 UNTAET Regulation no. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences. UNTAET/REG/2000/1577 Rome Statute of the International Criminal Court. A/CONF.183/9. Public Information andDocumentation Section of the ICC Maanweg, The Hague. (Rome Statute)


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Comm and Respon sib i l i ty

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 superiorsIn 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 criminallyresponsible 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 thetime, should have known that the forces were committing or about to commit suchcrimes; and

(ii) That military commander or person failed to take all necessary and reasonablemeasures within his or her power to prevent or repress their commission or to submit thematter to the competent authorities for investigation and prosecution.

While it is tempting to attach command responsibility to Brigadier General Ta

war crimes in timor 25 th of may 2006 massacre & war crimes in timor-leste

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