THE PROSECUTOR v. JOSE CARDOSO FEREIRA [A.K.A. MOUZINHO]
Case No. 04/2001
United Nations Transitional Administration in East Timor
Special Panel for the Trial of Serious Crimes in the District Court of Dili
April 5, 2003
Judge Sylver Ntukamazina
Judge Benfeito Mosso Ramos
Judge Maria Natercia Gusmao Perreira
Mr. Essa Faal
Mrs. Shamla Alagendra
Mr. Sipposami Malunga
Ms. Silvia de Bertodano
Ms. Gwyn Mackarick
Gender Keyword(s): Detention Centers; Forceful Abduction; Household Duties; Imposing Measured Intended to Prevent Births; Rape; Sexual Violence, Persecution
Procedural History: On May 19, 2000, Jose Cardoso Fereira (a.k.a. Mouzinho) was arrested ( 7). On February 6, 2001, the Public Prosecutor filed an indictment in the Dili District Court against Bambang Indra, Joao Franca da Silva, Jose Cardoso Fereira, Francisco Noronha, and Sabino Gouveiz Leite for their roles in the violent attacks that allegedly occurred in the Lolotoe sub-district of Bobonaro district, East Timor, between May and September 1999 ( 4, 17). The initial indictment charged Fereira with 14 counts of crimes against humanity, including rape as a crime against humanity or, alternatively, as a violation of the Indonesian Penal Code (id.). On February 16, 2001, the Prosecution submitted an application to the Special Panel for protective measures for the victims of the sexual offenses alleged in the indictment, which was approved by the Special Panel on April 6, 2001 ( 8, 14). On the same date, the Special Panel severed the charges brought against Bambang Indra and Fransisco Noronha from the instant case ( 14). On May 25, 2001, the Public Prosecutor filed an amended indictment at the request of the Special Panel ( 15-16). The amended indictment charged Fereira with 13 counts of crimes against humanity (imprisonment, torture, other inhumane acts, rape, murder, and persecution), but the alternative charge of rape as a violation of the Indonesian Penal Code was dropped ( 4, 17). As the alleged Deputy Commander and then Commander of the Kaer Metin Merah Putin (KMP) militia, one of the 25 civilian militia groups organized under the Integration Fighting Forces (PPI) that received the support of the Indonesian Armed Forces (TNI), Fereira was charged for some counts in the indictment on the basis of not only individual but also superior criminal responsibility.1 With respect to gender-based crimes, the amended indictment alleged that Fereira abducted and imprisoned three women, personally raped one of the women, and helped facilitate the rape of the two other women in June 1999, which formed the basis for the charges of individual criminal responsibility for rape as a crime against humanity and both individual and superior responsibility for imprisonment as a crime against humanity.2 The alleged attacks underlying all of the charges were directed against members and supporters of the pro-independence movement, and many of the acts were directed against women whose husbands were presumed to be members of FANTIL (Armed Forces of the Liberation of East Timor) and other suspected supporters of the pro-independence movement.3 On March 4, 2002, the trial began ( 1). On March 5, 2002, the Prosecutor made his opening statement, in which he referred to the three victims of alleged rape ( 33). The Defense objected to the use of the term “victims” to refer to the three women and proposed to the Court that the term “witnesses” should be used instead (id.) The Special Panel ruled against this objection and the Defense subsequently submitted an application to the Judge Administrator of Dili District Court to excuse the judges from the Special Panel (id.). On March 11, 2002, the Judge Administrator dismissed the application to remove the judges; however, the trial was nonetheless postponed until October 21, 2002, due to several administrative delays ( 33-40). On October 21, 2002, co-accused Joao Franca da Silva entered a guilty plea that the Special Panel verified the next day ( 40). The Special Panel subsequently separated Da Silva’s case from that of Fereira and Leite, and proceeded with the trial of the remaining accused ( 40-41). After hearing testimony from five witnesses, Leite entered a guilty plea, which was verified by the Special Panel on November 12, 2002 ( 41-43). After numerous delays, the trial of Fereria continued on February 3, 2003 ( 44-45). On February 19, 2003, the Public Prosecutor withdrew the charge of persecution as a crime against humanity because he determined he did not have sufficient evidence to support the charge ( 47). The parties delivered their closing arguments on April 1 and April 2, 2003, and the Court issued its disposition on April 5, 2003 ( 51-52). This is the digest of the written judgment of the Special Panel.
Disposition: As noted above in the “Procedural History,” the Prosecution withdrew the charge of persecution as a crime against humanity on February 19, 2003, after trial began ( 47). As to the remaining counts, the Special Panel finds Fereira guilty of imprisonment, torture, murder, other inhumane acts, and rape as crimes against humanity ( 523). The Special Panel considers the facts underlying the convictions for imprisonment, torture, and other inhumane acts to constitute one act and therefore, pursuant to the Indonesian Criminal Code, Fereira “shall therefore serve only the punishment for one of the convictions” ( 540). The Special Panel finds Fereira not guilty of one other count of other inhumane acts as a crime against humanity that was based on the general allegations of mistreatment at detention centers in Lolotoe, and not guilty of two other counts of murder as a crime against humanity ( 524). In light of the convictions, the Special Panel imposes a sentence of 12 years of imprisonment, which represents the maximum punishment allowed by the Indonesian Criminal Code, with credit for time served ( 542).4
Key Gender-Based Holdings:
• As discussed in “Rape” below, in defining rape as a crime against humanity, the Special Panel cites the Trial and Appeals Judgments from the Kunarac et. al. case before the International Criminal Tribunal for Yugoslavia (ICTY).5 The Special Panel notes that in Kunarac, the ICTY Trial Chamber found and the Appeals Chamber agreed that force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.6 The Kunarac Appeals Chamber held that there are factors other than force that would “render an act of sexual penetration non-consensual or non-voluntary on the part of the victim” ( 448).7 Furthermore, the Special Panel observes that the Appeal Chamber in Kunarac reasoned that when rape is charged as a war crime or crime against humanity, the circumstances surrounding it will be almost universally coercive, making true consent impossible ( 447). The Special Panels agrees with this finding in Kunarac and its application to the definition of rape as a crime against humanity, finding that “[f]orce need not require the demonstration of the perpetrator physically overpowering the victim. It may be possible to derive from the context in which the rape occurred a sufficiently coercive or threatening situation, which would render the act non-consensual” ( 449).
• The Special Panel observes that “guidance as to the circumstances that tend to negate consent can be drawn from Section 34.3 of UNTAET Regulation 2000/15, which provides for the status of evidence in cases of sexual assault” (id.). Section 34.3(b) states that:
(b) consent shall not be allowed as a defense if the victim:
(1) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (2) reasonably believed that if the victim did not submit, another person might be so subjected, threatened or put in fear;
The Special Panel acknowledges that this section of the UNTAET Regulation refers to the issue of consent when raised as a defense by the accused, but concludes that “it is nevertheless open to this Court to consider this Section as indicative of the sort of situations that can be taken to negate consent” ( 450). The Special Panel concludes that “central to the formulation of the crime” is the observation made by the Trial Chamber in Kunarac, that “[c]onsent…must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances” ( 452). The Special Panel also cites favorably tothe definition of rape as a crime against humanity provided in the Elements of Crimes for the International Criminal Court (ICC), which incorporates the definition of consent8 ( 441, 452). Finally, again citing Kunarac, the Special Panel notes that the mens rea for rape is “the intention to effect… sexual penetration, and the knowledge that it occurs without the consent of the victim” ( 452).
CREDIBILITY OR CHARACTER OF THE VICTIM:
• As noted in the “Rape” section below, Victim A, Victim B, and Victim C all testified at trial that they were taken to a beach by Fereira and two others—Lt. Bambang and Francisco Noronha—where they were told that each of them would have sex with one of the men or they would be killed ( 68-69). The women testified that they were then taken to a hotel where they were raped ( 69-73). The Special Panel notes that Victim A previously stated that the initial threat at the beach was only made by Noronha, and not Fereira, whereas at trial she testified that both men threatened the women with death ( 86). The Special Panel also notes that Victim B testified at trial that she was raped not only by Bambang but also by Fereira whereas her previous statements had not included the allegation that Fereira had raped her ( 297). However, with respect to inconsistencies between the testimony of a witness before the court and a written statement, the Special Panel finds that written statements should be assessed in light of the traumatic circumstances on which the accounts are based and hold less probative value than direct sworn testimony ( 297-300).
• The indictment alleged that sometime in May 1999, Fereira and other KMP and TNI soldiers went to the residences of Victim A, Victim B, and Victim C and took the three women against their will, holding them at the home of Sabino Gouveia Leite, then a military building, and then the home of Joao Franca Da Silva.9 The three women testified at trial that they were held for more than a month at these locations and then taken by Fereira, Lt. Bambang, and Francisco Noronha to a hotel where all three women were raped, as detailed in “Rape” below ( 86-95). The Special Panel finds that these allegations in support of the charges of rape and imprisonment as crimes against humanity have been proven and Fereira is guilty of both charges ( 523, pp. 160-61). While the Special Panel does not use the term “forceful abduction,” the Special Panel does state that the women were “captured” against their will by Fereira and other soldiers–who were all armed–and they were then “forced” by Fereira, Bambang, and Noronha to go to Atapupu beach and then to a hotel where they were raped ( 348-53, 426-36, 459-62).
• The amended indictment alleged that Fereira participated in taking Victim A, Victim B, and Victim C from their homes in May 1999.10 The Prosecution alleged that the women were taken to the home of village chief Sabino Gouveia Leite, where they were held against their will for approximately one week and forced to cook for Leite, his family, and other militiamen.11 It was alleged that the women were then briefly transferred to a military building in Lolotoe before they were taken to the home of Joao Franca Da Silva, where they remained for approximately one month.12 While at Da Silva’s house, the indictment alleged that the women were forced to cook and attend military parties.13 The indictment alleged that the women were guarded during their detention, and that “[t]hey lived on the threat of death and believed that they had no option other than to obey their captors.”14 These allegations formed the basis of one of the four counts of imprisonment as a crime against humanity.15 At trial, Witness A testified that Fereira captured her at gunpoint ( 67). She remembers that she, along with Victim B and Victim C, were imprisoned at Da Silva’s house for “over two weeks” ( 69). Witness B testified that the three women “cooked for themselves” while detained at Da Silva’s house ( 74). Witness C testified that the she and the other two women “lived as if we were staying at our own house” while detained at Da Silva’s house ( 81). The Special Panel finds that Fereira captured Victim A, Victim B, and Victim C and took them to several places before detaining them against their will at Da Silva’s house ( 348-51). The Special Panel also concludes that the women were forced to attend two parties with Fereira and his friends during this time ( 351). The Special Panel does not address the allegations of forced household duties in the discussion of its factual findings ( 348-53). The Special Panel finds Fereira guilty of imprisonment as a crime against humanity for his role in the detention Victim A, Victim B, and Victim C ( 523, p. 160).
IMPOSING MEASURES INTENDED TO PREVENT BIRTHS:
• As noted below in the section on “Rape,” the amended indictment alleged that Fereira participated in the abduction and rape of three civilian women, Victim A, Victim B, and Victim C.16 Prior to the rapes, the indictment alleged that Francisco Noronha “injected a substance in the buttocks of Victim B and Victim C, which he said would prevent them from getting pregnant.”17 The indictment alleged that Victim A was subsequently raped by Fereira, Victim B was subsequently raped by Lt. Bambang Indra, and Victim C was raped by Noronha.18 These allegations support the charge against Fereira of rape as a crime against humanity.19 At trial, Victim B testified that she and Victim C were injected on the second night of their detention, after which Victim C fell unconscious ( 90). Victim C testified that after he injected her, Noronha threatened her by saying, “If you do not give me your body you will die in this place” ( 94). The Special Panel finds that Fereira is responsible for aiding and abetting the rapes of Victim B and Victim C because he “carried out acts that directly assisted Bambang and Francisco Noronha to rape the victims and he knew that the girls would be raped after they were injected with medicines that were purportedly to prevent them from becoming pregnant” ( 460). Thus, Fereira was found individually criminally responsible for direct perpetration, as well as aiding and abetting and contributing to the commission of rape as a crime against humanity ( 453-462, 523, p. 161).
• The Special Panel uses the term “penis” in its descriptions of the rapes of Victim A, Victim B, and Victim C by Fereira, Lt. Bambang, and Francisco Noronha, specifying that in each case, the rape consisted of the perpetrator “introducing his penis into [the] vagina” of the victim ( 88, 90, 94). The Special Panel finds Fereira guilty of individual criminal responsibility for rape as a crime against humanity based on the testimonies of these victims about these allegations ( 523, p. 161).
• As noted above, the Panel heard evidence that three women—Victim A, Victim B, and Victim C—were taken from their homes in May 1999 by militia members led by Fereira and held for more than one month in various locations ( 348-51). The amended indictment alleged that, on or around June 27, 1999, Fereira participated in the rape of these women who were then being detained at Joao Franca Da Silva’s house.20 It alleged that Fereira, Lt. Bambang Indra, and Francisco Noronha first forced Victim A, Victim B, and Victim C to go to with them to the Atapupu Beach for lunch.21 There, Noronha allegedly told the women that if they did not sleep with the men, they would be killed. Then the women were taken to the Hotel Merdeka, where, according to the indictment, Noronha repeated the threat and “injected a substance in the buttocks of Victim B and Victim C, which he said would prevent them from getting pregnant.”23 According to the indictment, the women were then distributed amongst the three men; Victim A to Fereira, Victim B to Bambang, and Victim C to Noronho.24 The amended indictment alleged that, while armed with an AK47 automatic weapon, Fereira told Victim A that he would kill her if she refused to have sexual intercourse with him and then raped her.25 These allegations formed the basis for the charge of individual criminal responsibility for rape as a crime against humanity.26 At trial, Victim A testified about these events, saying that at Atapupu beach, Fereira and Noronha told the women, “Tonight if you don’t sleep with us we will kill you and throw your bodies in the ocean” ( 86). When she protested to Noronha, who was “like an uncle to her,” he told again her, “If you don’t want this we will kill you and throw your body into the ocean” (id.). Victim A testified that the women slept together the first night, and that the rapes occurred on the second night after Victim B and Victim C were injected ( 87). When she was alone with Fereira, Victim A said that he threatened her, stripped her naked, and raped her two times ( 88). She also testified that when she told Fereira that he would be responsible if she became pregnant, he replied, “Ah! These days there isn’t any pregnancy or pregnant women. They don’t exist” (id.). Victim A stated during her testimony that “I gave myself, my body, to him in order not to die” and that she felt “disappointed, disillusioned and offended” by the rape (id.). As noted above, Victim B testified that she and Victim C were injected with medicine that they were told would prevent pregnancy, after which Victim C fell unconscious ( 90). Victim B testified that Bambang raped her two times over the course of two nights ( 90-91). She further testified that she was also raped by Fereira and Naronha on one occasion when Bambang had left the room ( 91). Victim C testified to the same events, stating that after he injected her, Noronha threatened her by saying, “If you do not give me your body you will die in this place” ( 94). When she was crying after the rape, Noronha told her, “I know you’re still virgin” (id.). Victim C testified that Noronha raped her two times over the course of two nights ( 95).
• The Special Panel notes that this case is the first of its cases that charges an accused with rape as a crime against humanity ( 439). The Special Panel states that rape as a crime against humanity is provided for in Section 5(g) of UNTAET Regulation 2000/15, but observes that because rape is not defined in the UNTAET Regulation, the Panel will “have to refer to other sources outside Regulation 2000/15 in order to determine the elements of Rape as Crime Against Humanity” ( 437). The Special Panel cites the definition formulated in the International Criminal Court’s Elements of Crimes, noting than in addition to the chapeau requirements for all crimes against humanity, the elements of rape as a crime against humanity include the following:
1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent ( 441).27
The Panel cites also the definitions of rape established by the ICTY in the Furundzija case28 and by the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case29 ( 442-44). As noted in the section on “Consent” above, the Panel discusses the element of consent and use of force in further detail ( 446-450). The Panel concludes its analysis regarding the definition of rape by adopting the formulation of rape in the ICC’s Elements of Crimes above ( 452). Applying this finding to the instant case, the Special Panel believes that the evidence supports the finding that Fereira personally raped both Victim A and Victim B, for which he incurs individual criminal responsibility ( 454). The Special Panel also finds that Fereira incurs individual criminal responsibility for “aiding and abetting” and “contributing to the commission of” the rape of Victim B by Bambang and Victim C by Noronha because he assisted in taking the women, participated in making the threats, and took each victim to the room where she was later raped ( 459-62). (For a more detailed discussion of the mode of liability, see the section on this issue below.) In light of these findings, the Special Panel finds Fereira guilty of rape as a crime against humanity ( 523, p.161).
SEXUAL VIOLENCE; PERSECUTION:
• The amended indictment charged Fereira with one count of persecution as a crime against humanity for his role in all of the allegations outlined in the indictment.30 It alleges that he is responsible for the “persecution of supporters of independence of East Timor…as part of a widespread or systematic attack against a civilian population with knowledge of that attack.”31 Among other means, the amended indictment alleges that “the crimes of persecution were perpetrated, executed and carried out by or through…(e) rape.”32 However, as noted above in the section on “Procedural History,” the Prosecution withdrew this charge of persecution as a crime against humanity after the trial began ( 47).
• The Special Panel uses the term “vagina” in its descriptions of the rapes of Victim A, Victim B, and Victim C by Fereira, Lt. Bambang, and Francisco Noronha, specifying that in each case, the rape consisted of the perpetrator “introducing his penis into [the] vagina” of the victim ( 88, 90, 94). The Special Panel finds Fereira guilty of rape as a crime against humanity based on the testimonies of these victims about these allegations ( 523, p. 161).
MODE OF LIABILITY:
• The indictment charged Fereira with rape as a crime against humanity under individual criminal responsibility for personally committing the rape of Victim A and for aiding and abetting the rapes of Victim B and C as well as “contributing to the commission” of the rapes of all three women under the UNTAET Regulation’s provision regarding joint criminal enterprise33 ( 453).
o The Special Panel finds that Fereira personally raped Victim A and Victim B and as such has individual criminal responsibility for these rapes ( 454).
o With respect to the allegations that Fereira aided and abetted in the rapes of Victim B and Victim C, the Special Panel examines jurisprudence from other international tribunals first to identify the elements of aiding and abetting in general ( 456). For instance, the Panel notes that in the Tadic Judgment,34 the ICTY Appeals Chamber determined that the aider and abettor is an accessory to a crime perpetrated by another person; that no common plan between the aider and abettor and the principal is necessary; that the aider and abettor carries out acts specifically to “assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime;” and that these acts are done with the knowledge that they assist the principal in the commission of the relevant crime (id.). The Panel then looks to other jurisprudence dealing with aiding and abetting the crime of rape specifically, explaining that the ICTR held in Akayesu that the defendant, “having had reason to know that sexual violence was occurring, aided and abetted acts of sexual violence by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place” ( 458). The Special Panel then identifies the following evidence that Fereira aided and abetted in the rapes of Victim B and Victim C by Bambang Indra and Francisco Noronha, respectively:
The accused assisted in taking the victims to Atambua;
The accused threatened the victims while at Atatpupu beach in Atambua that if they do not have sexual intercourse with them they will kill them and throw their bodies in the sea;
The accused took Victim B and Victim C to the rooms of Bambang and Francisco Noronha respectively where they were raped;
The accused took Francisco inside the room of Bambang where Victim B was and Francisco raped her ( 459).
The Panel notes that, based on this evidence, it is “convinced that the Accused, Jose Cardoso Fereira aka Mouzhino, aided and abetted the rape of Victim B by Bambang and Francisco Noronha and the rape of Victim C by Francisco Noronha” because he carried out acts that directly assisted Bambang and Noronha to rape the victims and he knew they would be raped after they were injected with medicines purportedly to prevent pregnancy ( 460).
o Finally, the Panel finds “the Accused participated in a common enterprise to rape Victims A, B and C,” basing this finding on the existence of an arrangement, which was demonstrated by the fact that the three perpetrators took the detained victims to Atapupu beach and threatened them with death if they did not have sex with the perpetrators ( 461). The Panel also cites the fact that Fereira was armed, that he paid for the hotel rooms where the rapes took place, and that he escorted the women to the rooms as evidence that the three men were acting in furtherance of a common design (id.). The Panel notes that the accused personally participated in committing the crime by raping Victim A and Victim B and shared a common state of mind with the other perpetrators as well, as evidenced by the threats made to the women at the beach in the presence of all three men that the women would be killed if they refused to have sex, demonstrating a “common intention to rape the victims” (id.).
• Based on all of this evidence, the Panel concludes that “the Prosecutor proved beyond reasonable doubt that the Accused is responsible for the rape of Victims A and B by the accused himself and the rape of Victims A, B and C by others” ( 462).
2 The General Prosecutor v. Da Silva et. al., Indictment, May 25, 2001, 69-75, pp. 14-15.
3 Id. at 19.
4 The Prosecutor v. Cardoso, Judgement, 161 (April 5, 2003) (noting that, in the case of cumulative sentencing, “[i]n accordance with 5 Article 65.2 of the Indonesian Criminal Code, [the maximum] total must not exceed one third beyond the most severe maximum punishment, which in this case is [nine] years.”).
5 Prosecutor v. Dragoljab Kunarac, et. al., Trial Judgment, February 22, 2001, Prosecutor v. Dragoljab Kunarac et. al., Appeals Judgment, June 12, 2002.
6 Prosecutor v. Dragoljab Kunarac, et. al., Trial Judgment, February 22, 2001,; 458, Prosecutor v. Dragoljab Kunarac et. al., Appeals Judgment, June 12, 2002, 129.
7 Citing Prosecutor v. Dragoljab Kunarac et. al., Appeals Judgment, June 12, 2002, 129.
8 The relevant part of the definition states that rape is an invasion of any part of the victim’s body “committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”. See Elements of Crimes of the International Criminal Court, p. 8.
(i) the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a third person.”
Prosecutor v. Anto Furundzija, Case No. IT-95-17, Trial Chamber Judgment, December 10, 1998, 185.
29 “The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” Prosecutor v. Jean-Paul Akayesu, Trial Chamber Judgment, September 2, 1998, 598.
30 The General Prosecutor v. Da Silva et. al., Indictment, May 25, 2001, 86-89, 16.
31 Id. p. 16.
32 Id. 88.
33 UNTAET Regulation 2000/15, Section 14(d).
34 Prosecutor v. Dusko Tadic, Appeals Chamber Judgment, July 15, 1999, 229.