Part 8: Responsibility and Accountability Part 8: Responsibility and Accountability ..............................................................................................1 Part 8: Responsibility and Accountability ..............................................................................................2 8.1 Introduction ..................................................................................................................................2 8.2 Principal findings..........................................................................................................................5 8.3 Methodology for identification of institutional responsibility.....................................................11 8.4 Responsibility and accountability of the Indonesian security forces .......................................15 High-level responsibility........................................................................................................................51 The scale of violations:.........................................................................................................................52 The pattern of violations.......................................................................................................................52 Strategy.................................................................................................................................................52 Institutional norms and culture.............................................................................................................53 1) There was a superior-subordinate relationship...............................................................................53 2) The superior “knew or had reason to know” that a crime was about to be or had been committed ...............................................................................................................................................................53 3) The perpetrator failed to take “necessary and reasonable measures to prevent such acts or to punish the perpetrator thereof” ............................................................................................................54 8.5: Responsibility and Accountability of the East Timorese political parties................................66 8.6: State responsibility....................................................................................................................87 Annexe 1: Responsibility of the Indonesian security forces for the mass violations committed in 1999..................................................................................................................................................94 Findings and conclusions: .............................................................................................................114 - 1 - Part 8: Responsibility and Accountability 8.1 Introduction 8.1.1 State, institutional and individual responsibility* Regulation 2001/10 provided the Commission with a mandate that included a duty to inquire into the context, causes and commission of human rights violations which occurred in East Timor from 25 April 1974 to 25 October 1999.† Within this framework the Commission was specifically given the duty to inquire into and make findings as to which persons, authorities, institutions and organisations were involved in the violations, and whether they were the result of a deliberate plan or policy by a state, political organisation, militia group, liberation movement, or other group or individual.1 As it is not a judicial institution, the Commission has not made any findings of law. However, its findings in relation to responsibility for human rights violations have been guided by the principles of customary international law.‡ The Commission has also considered political, moral and historical responsibility. In accordance with its mandate the Commission has made findings of responsibility in respect of states, institutions, organisations and individuals States are legally and morally responsible for the conduct of their organs and agents. This includes not only those who are officials and employees of the State, but also individuals whose actions are controlled by the State. A State will be accountable under international law when its conduct (through its organs or agents) breaches an international obligation owed by that State under treaty or international law. This can occur through the commission of positive acts. It may also occur when the State fails to prevent violations or to investigate and prosecute the individuals responsible. The Commission has held organisations and institutions, including political parties, to be institutionally responsible for violations committed by their members or agents while acting as representatives of the organisation, institution or party. Individuals have been held to be responsible where, in the opinion of the Commission, there is sufficient evidence to establish that they have a case to answer for crimes recognised under customary international law or domestic criminal law which was applicable at the time of the violation. Individuals can be held to account in any of three situations. The first of these is where he or she intentionally commits, plans, orders, aids or abets the planning, preparation or execution of a crime. Secondly, an individual will be accountable for taking part in a common plan or conspiracy to facilitate the commission of a crime. Thirdly, an individual may be held responsible according to the principle of command responsibility. * A full account of the laws giving rise to accountability on the part of states, organisations and individuals is found in Part 2: The Mandate of the Commission. † See Part 2: The Mandate of the Commission, for a thorough discussion of the Commission’s mandate. ‡ The mandate of the Commission compelled it to use the standards of international humanitarian law, international human rights law and domestic criminal law in deciding what constitutes the commission of a human rights violation. - 2 - Under international law a person who is in the position of a superior (either in law or in fact) and who has effective control over his or her subordinates2 will have command responsibility where a crime is committed by a subordinate and the superior knew or should have known of the crime but did nothing to prevent it, or to punish those responsible.3 Crimes under international law Although it is not a court the Commission has made findings where it considers that certain international crimes have been committed and has identified who it believes to be is responsible for these crimes. Although many international crimes provide a legal remedy only against individuals who violate them, the Commission has made more general findings about the responsibility of institutions which individual perpetrators represented, including state responsibility for the actions of its agents. In making these findings the Commission has applied the legal standards which are described in Part 2: The Mandate of the Commission. These can be summarised as follows. Crimes against humanity A crime against humanity occurs when certain prohibited acts are committed as part of a widespread or systematic attack against a civilian population. The civilian population in question may be any civilian group. It might be, for example, a group connected through ideological, political or cultural association and gender,4 including civilian groups advocating liberation or supporting resistance to occupation. Prohibited acts include: murder; extermination (including by deprivation of food); enslavement; deportation or forcible transfer of population; forced labour; imprisonment; torture; rape; persecution on political, racial, or religious grounds; enforced disappearances; and other inhumane acts “of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. These prohibited acts must be committed as part of a widespread or systematic attack against the civilian population. “Widespread” refers to the large-scale nature of the attack and the number of targeted persons, while the phrase “systematic” refers to the organised nature of the acts of violence and the improbability of their random occurrence.* War crimes Two categories of war crimes exist in the context of an international armed conflict, such as that between the Indonesian security forces and those of the East Timorese national liberation movement between 1975 and 1999.† The first are “grave breaches” of the Geneva Conventions. ‡ A “grave breach” occurs when certain criminal acts are committed against vulnerable persons, namely the wounded, the sick, prisoners of war and civilians. These acts include: * Kunarac Appeal Judgement , para. 94. According to the ICTR an attack is “widespread” if it is a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. [Prosecutor v Akayesu, Judgment, No. ICTR-96-4-T, para. 580 ,Sept. 2, 1998]. The ICTR defined “systematic” as constituting “organised action, following a regular pattern, on the basis of a common policy and involving substantial public or private resources …[T]here must exist some preconceived plan or policy.” [Prosecutor v Musema, Judgment, No. ICTR-96-13-T, para. 204 ,Jan. 27, 2000]. The plan or policy need not be formally articulated; it may be inferred from the circumstances, including “the scale of the acts of