3. UNTAET was established by the Security Council under Chapter VII of the UN Charter, UN Doc. S/Res/1272(1999). For the purposes of this article, references to UNTAET shall include the East Timor Transitional Administration.

4. UNTAET Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15, 6 June 2000 (‘Regulation 2000/15’).

5. Kitab Undang-Undang Hukum Pidana (KUHP, or Indonesian Penal Code), available in Bahasa Indonesia at http://www.asiamaya.com.

6. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, UN Doc. A/CONF. 183/9 (entered into force 1 July 2002), adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998.

7. A notable exception is superior orders, where UNTAET's drafters chose to revert to the positions adopted by the ad hoc Tribunals for Yugoslavia and Rwanda; see discussion at section 5.1 infra. The procedure for a guilty plea is contained in Regulation 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000, UNTAET/REG//2000/30 (‘Transitional Rules of Criminal Procedure’).

8. S. 3, UNTAET Regulation 1999/1 on the Authority of the Transitional Administration in East Timor, UNTAET/REG1999/1, 27 October 1999.

9. Transitional Rules of Criminal Procedure, supra n. 7

10. Regulation 2000/15 envisaged several panels operating simultaneously. However, for virtually the entire period covered by this study, there has been just one panel of judges, although its composition has varied in part. We use the singular in relation to specific cases and the plural when referring to the general practice.

11. There are no indications that the confessions arise from improper conduct of the investigative authorities and this has never been an issue in Serious Crimes cases thus far. However, the lack of legal representation for suspects during police questioning has been an ongoing problem, due to the few defence counsel available.

12. See generally Dunn, J., Timor: A People Betrayed (Brisbane, Jacaranda Wiley 1983)Google Scholar; Budiardjo, C. and Liong, Liem Soei, The War Against East Timor (London, Zed Books Ltd. 1984)Google Scholar; Taylor, J., Indonesia's Forgotten War: The Hidden History of East Timor (London, Zed Books Ltd. 1991); Catholic Institute for International Relations and the International Platform of Jurists for East Timor, International Law and the Question of East Timor (London and Leiden, CIIR and IPJET 1995)Google Scholar; Taylor, J., East Timor: The Price of Freedom (London, Zed Books Ltd. 1999)Google Scholar; Linton, S., ‘Rising From The Ashes: The Creation Of A Viable Criminal Justice System In East Timor’, 25 Melbourne Univ. LR (2001) p. 122Google Scholar; Linton, S., ‘Prosecuting Atrocities At The District Court Of Dili’, 2 Melbourne JIL (2001) p. 414Google Scholar; Linton, S., ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’, 12 Criminal LF (2001) p. 185Google Scholar; Linton, S., ‘New Approaches to International Justice in Cambodia and East Timor’, IRRC No. 845 (2002) p. 93Google Scholar; Ruffert, M., ‘The Administration Of Kosovo and East Timor by the International Community’, 50 ICLQ (2001) p. 613CrossRefGoogle Scholar; Strohmeyer, H., ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, 95 AJIL, (2001) p.46CrossRefGoogle Scholar.

13. See 3 YIHL (2000) pp. 471–482Google Scholar and in this volume at pp. 492–497.

14. Prosecutor v. Stevan Todorović, case No. IT-95–9/1-S, Sentencing Judgement, 31 July 2001.

15. Prosecutor v. Jean Kambanda, case No. ICTR 97–23-A, Judgement, 19 October 2000, where despite the former Prime Minister's guilty plea, a Trial Chamber of the ICTR imposed the maximum penalty, a life sentence. This was upheld on appeal.

16. Prosecutor v. Drazen Erdemović, case No. IT-96–22-T, Trial Chamber II, Judgement, 29 November 1996; Prosecutor v. Drazen Erdemović, case No. 1T-96–22-A, Appeals Chamber, Judgement, 7 October 1997, with Joint Separate Opinion of Judge McDonald and Judge Vohrah (‘Joint and Separate Opinion of Judges McDonald and Vohrah’), and Separate Opinions from Judges Cassese, Stephen and Li (‘Separate Opinion of Judge Cassese’, ‘Separate Opinion of Judge Stephen’, ‘Separate Opinion of Judge Li’). By four votes (Judges Cassese, McDonald, Stephen and Vohrah) to one (Judge Li), the Appeals Chamber found that the guilty plea was not informed; By four votes (Judges Cassese, McDonald, Stephen and Vohrah) to one (Judge Li), the Appeals Chamber held that the case must be remitted to a Trial Chamber, other than the one which sentenced the Appellant, so that the Appellant could enter a fresh plea in full knowledge of the nature of the charges and the consequences of his plea.

17. Erdemović Appeal Decision, Joint and Separate Opinion of Judges McDonald and Vohrah, ibid., para. 8.

18. Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (adopted 11 February 1994 and subsequently amended), Doc. IT/32/Rev.20 (‘ICTY Rules of Procedure and Evidence’) (‘ICTY Rules of Procedure and Evidence’) and Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (adopted 29 June 1995 and subsequently amended), (‘ICTR Rules of Procedure and Evidence’).

19. Prosecutor v. Goran Jelisić, case No. IT-95–10-T, Judgement, 14 December 1999.

20. Prosecutor v. Stevan Todorović, supra n. 14.

21. On 2 October 2002, Biljana Plavsić, former Bosnian Serb President, pleaded guilty to persecution on political, racial and religious grounds as a crime against humanity. At her first appearance before the tribunal, she had entered a not-guilty plea. The Prosecution dropped all other charges in its Amended Consolidated Indictment of 7 March 2002. The parties filed a plea agreement that set out in detail what it was that Ms Plavsić agreed to. She agreed to the legal elements of the crime of persecution based on political, racial and religious grounds which the Prosecution was required to prove beyond reasonable doubt, and the specific rights that she was waiving by pleading guilty. It also emphasized that she had taken full legal advice and entered into the agreement voluntarily and without undue influence; her legal advisors also entered the agreement.

22. Prosecutor v. Jean Kambanda, supra n. 15.

23. Erdemović Appeal Decision, Separate Opinion of Judge Cassese, supra n. 16, para. 14.

24. Trial of Otto Ohlendorf et al., (‘Einsatzgruppen’), Trials of War Criminals Before the Nuremburg Military Tribunals under Control Council Law No. 10, (US Govt. Printing Office, Washington DC 1950) Vol. IV, p. 480Google Scholar.

25. Erdemović Appeal Decision, Separate Opinion of Judge Cassese, supra n. 16, para. 14.

26. Charter of the International Military Tribunal (IMT), in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 August 1945, 82 UNTS p. 280 (‘IMT Charter’).

27. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany 50–55 (1946) (‘Control Council Law No.10’).

28. Einsatzgruppen, supra n. 24, p. 480.

29. Erdemović Appeal Decision, supra n. 16, para. 19.

30. Erdemović Appeal Decision, ibid., Separate Opinion of Judge Cassese, paras. 41 and 49.

31. Erdemović Appeal Decision, ibid., Separate Opinion of Judge Stephen, para. 64.

32. Erdemović Appeal Decision, ibid., Joint and Separate Opinion of Judges McDonald and Vohrah, paras. 77 and 88.

33. Erdemović Appeal Decision, ibid., Separate Opinion of Judge Li, para. 5.

34. For a concise identification of the main issues, see Eser, A., ‘Defences in War Crimes Trials’, in Dinstein, Y. and Tabory, M., eds., War Crimes in International Law (Dordrecht, Martinus Nijhoff 1996) pp. 251–173Google Scholar.

35. IMT Charter, supra n. 26, Art. 8: ‘The fact that the Defendant acted pursuant to orders of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment, if the Tribunal determines that Justice so desires.’

36. Trials of the German Major War Criminals, Proceedings of the International Military Tribunal, Sitting at Nuremberg, Germany 1947(London, H.M. Stationery Office 1950) Vol. 22, p. 447Google Scholar (‘IMT Judgement’).

37. Ibid. ‘The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.’

38. Report of the Secretary-General, UN Doc. S/25704, para. 57.

39. Meron, T., War Crimes Law Comes of Age (Oxford, Oxford University Press 1999) p. 224CrossRefGoogle Scholar. Also generally on the development of the law since 1945, see Dinstein, Y., The Defence of Obedience to Superior Orders in International Law (Leiden, Sijthoff 1965)Google Scholar; Green, L.C., Superior Orders in National and International Law (Leiden, Sijthoff 1976)Google Scholar.

40. Meron, op. cit. n. 39, at p. 101, see also Green, L.C., ‘Superior Orders and the Reasonable Man’, in Essays on the Modern Law of War, 2nd edn. (Ardsley, Transnational Publishers Inc. 1999) pp. 245–282Google Scholar.

41. US v. Wilhelm List et al, (Hostages), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (US Govt. Printing Office, Washington DC 1950) Vol. XI, p. 1236.

42. See para. 509(a) of US Army Field Manual 27–10(1956): The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character as a war crime, not does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful, (emphasis added).

43. See for example, Report of the International Law Commission on the work of its Thirty-Ninth Session, 4 May -17 July 1987 (1987), 2 YILC, Part, 1 and 7, and commentary on superior orders at UN doc. A/42/10 (1987) p. 9.

44. Trifterer, O., ed., Commentary on the Rome Statute of the International Criminal Court, Observer's Notes, Article by Article (Baden-Baden, Nomos, 1999) p. 582Google Scholar.

45. In illustrating how to use the superior orders doctrine, the tribunal in Einsatzgruppen raised an example of a sailor who voluntarily joins a pirate ship. He ‘must not be heard to answer that he was ignorant of the probability he would be called upon to help in the robbing and sinking of other vessels. He who willingly joins an illegal enterprise is charged with the natural development of that unlawful undertaking. What SS man could say that he was unaware of the attitude of Hitler toward Jewry?’, Einsatzgruppen, supra n. 24, p. 92.

46. Idem., p. 91.

47. Trial of Erhard Milch, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (US Govt. Printing Office, Washington DC 1950) Vol. III, p. 964.

48. Erdemović Appeal Decision, supra n. 16, Separate Opinion of Judge Cassese, para. 17.

49. Erdemović First Trial Chamber Judgment, supra n. 16, para. 53.

50. The question of the moral choice was considered by the trial chamber and the five appellate judges as key in the Erdemović case, supra n. 16.

51. Garraway, C., ‘Superior Orders and the International Criminal Court: Justice delivered or justice denied?’, 81 IRRC (1999) No. 836, pp. 785–794Google Scholar.

52. Gaeta, P., ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’, 10 EJIL (1999) pp. 172 et seqCrossRefGoogle Scholar.

53. Erdemović Trial Chamber Judgment, supra n. 16, para. 18.

54. Ibid., para. 19.

55. Idem.

56. Idem.

57. Erdemović Appeal Decision, Joint Separate Opinion Judges McDonald and Vohrah, supra n. 16, para. 36.

58. Idem.

59. Ibid., para. 35.

60. Ibid., Separate Opinion of Judge Cassese, para. 15.

61. Idem.

62. Transitional Rules of Criminal Procedure, supra n. 7, s. 29A.

63. Ibid., s. 29A.2.

64. Ibid., S.29A.3 and S.29A.4.

65. General Prosecutor v. Joao Fernandes, Judgement of 25 January 2001, Special Panel for Serious Crimes, case No. 001/OO.C.G.2000 (English) (‘Joao Fernandes Trial Judgement’).

66. This occurred in cases such as Julio Fernandes, Yoseph Leki, Manuel Lete Bere, Jose Valente, Agustinho da Costa, Caspar Leite and Lospalos, all of which are discussed at later stages of this paper.

67. Public Prosecutor v. Marcurious de Deus, case No. 13/2001, Decision, 18 April 2002, and Public Prosecutor v. Augusto dos Santos, case No. 6/2001, Decision, 15 May 2002.

68. Public Prosecutor v. Joni Marques & Ors, case No. 9/2000 (‘Lospalos Case’), Decision, 11 December 2001.

69. Erdemović Appeal Decision, Separate Opinion of Judge Stephen, supra n. 16, para. 22.

70. Ibid., para. 22.

71. Ibid., para. 18.

72. Erdemović Appeal Decision, ibid., Joao Fernandes Trial Judgement, supra n. 65.

73. Penal Code of Indonesia, supra n. 5, Art. 340: ‘[t]he person who with deliberate intent and with premeditation takes the life of another person, shall, being guilty of murder, be punished by capital punishment, life imprisonment or a maximum imprisonment of twenty years’.

74. Joao Fernandes Trial Judgement, supra n. 65, para. 6.

75. Joao Fernandes v. Prosecutor General, Criminal Appeal No. 2 of 2001 (29 June 2001), ‘Ruling of the Court of Appeal of East Timor’. The decision of the majority is hereafter referred to as ‘Joao Fernandes Appeal — Majority Decision’ and the Separate Opinion of Judge Frederick Egonda-Ntende is referred to as ‘Joao Fernandes Appeal — Judge Egonda-Ntende Separate Opinion’.

76. JSMP trial observation notes, on file with Caitlin Reiger.

77. The languages used in the courts of East Timor are Tetum, Bahasa Indonesia, English and Portuguese as the official languages; other East Timorese languages are also used. The inability of the administrators of the courts to provide adequate translation has been the focus of concern for the detrimental impact on due process and fair trial: see Judicial System Monitoring Programme, Justice in Practice: Human Rights in Court Administration, Thematic Report No. 1, November 2001.

78. In several cases, defence counsel have argued that the existence of superior orders proves that the accused could not have had the requisite intent. In Jose Valente, an international public defender claimed that the attempted plea of guilty could in fact only be a plea to manslaughter and not murder, with which the accused was charged. The Public Prosecutor v. Jose Valente, case No. 3/2001, Decision, 19 June 2001. In the Lospalos case, one of the defence counsel, in closing submissions, claimed that her client could not be found guilty as he had been ordered to participate in the crimes charged. Supra n. 68.

79. Supra n. 67.

80. Supra n. 67

81. Ibid, at para. 60(c).

82. Ibid., at para. 60(d).

83. Joao Fernandes Appeal, Judge Egonda-Ntende Separate Opinion, p. 30, supra n. 75.

84. Ibid., pp. 28–31. There is often confusion about the official record. Clarification by simply examining the transcripts offers no remedy, for there continues to be no transcription facilities in the courts of East Timor. The official record is compiled by a rapporteur judge who makes notes on a laptop computer, relying on multiple levels of translation that are often of poor quality and sometimes third-hand. In his Separate Opinion, Judge Egonda-Ntende raised the problem of the inconsistent reporting contained in the court record and the judgments of the Special Panel. Similarly, whilst they do not seek rectification by way of corrigenda, both prosecution and defence privately complain that the judgments of the Special Panel contain many factual inaccuracies and mistakes.

85. Joao Fernandes Appeal, Judge Egonda-Ntende Separate Opinion, p. 31, supra n. 75.

86. Erdemović Appeal Decision supra n. 16: Joint Separate Opinion, para. 7; Separate Opinion of Judge Cassese, para. 10.

87. Jean Kambanda v. The Prosecutor, supra n. 15, para. 76.

88. Statute of the International Tribunal of the Former Yugoslavia, SC Res. 827, 48 UN SCOR (3217th mtg) (1993), 32 ILM p. 1203.

89. Prosecutor v. Erdemović, case No. IT-96–22-Tbis, Sentencing Judgment, 5 March 1998; Separate Opinion of Judge Shahabuddeen, p. 3.

90. The Public Prosecutor v. Gaspar Leite aka Gaspar Leki, case No. 5/2001. On 14 September 2002, Leite was acquitted of murder but convicted of criminal negligence causing death under section 339 of the Indonesian Penal Code and sentenced to 11 months imprisonment.

91. Transitional Rules of Criminal Procedure, supra n. 7, s. 34.1.

92. Joao Fernandes Appeal, Judge Egonda-Ntende Separate Opinion, p. 33, supra n. 75.

93. Ibid., p. 32–33.

94. Prosecutor v. Goran Jelisić, supra n. 19 para. 25.

95. Supra n. 20.

96. Supra n. 15.

97. The Public Prosecutor v. Augusto dos Santos, supra n. 67, para. 51. Counsel told the court that part of the accused's motivation to plead guilty was to spare those witnesses from the need to testify.

98. The Public Prosecutor v. Marcurious Jose de Deus, supra n. 67, at p. 9 and notes taken during the hearing on 2 April 2002, on file with Caitlin Reiger.

99. Trifterer, op. cit. n. 44, at p. 829.

100. Contrast this with Judge Stephen, Prosecutor v. Erdemović, supra n. 16.

101. Transitional Rules of Criminal Procedure, supra n. 10, s 29A.3.

102. See Justice in Practice: Human Rights in Court Administration, Judicial System Monitoring Programme, Thematic Report No 1, November 2001, Dili, (‘Justice in Practice: Human Rights in Court Administration’) p. 14.

103. Trifterer, op. cit. n. 44, at p. 830.

104. Public Prosecutor v. Agustinho da Costa, case No. 07/2000, Judgment, 11 October 2001; Public Prosecutor v. Augusto Asameta Tavares, case No. 2/2001, Decision, 28 October 2001.

105. The Public Prosecutor v. Jose Valente, supra n. 78.

106. Ibid. For example, at page 5 die panel stated that ‘The statements of the Defendant must be considered with the facts and with the statements of the witnesses before die court.’

107. See Justice in Practice: Human Rights in Court Administration, pp. 10–12, supra n. 77. See also East Timor: Justice past, present and future, Amnesty International, AI Index ASA 57/001/2001, 27/7/01.

108. For example, in the Soares case, defence counsel argued that superior orders were a defence. Public Prosecutor v. Carlos Soares, supra n. 67.

109. Art. 48, Indonesian Penal Code, supra n. 5.

110. Prosecutor v. Julio Fernandes, case No. 2/2000, Trial Decision, 1 March 2002, p. 11.

111. Ibid. The East Timorese judge dissented, finding the accused guilty of unpremeditated murder only.

112. Ibid., at p. 8.

113. It should be noted that on appeal, Judge Egonda-Ntende noted that the Special Panel had made findings that were not based on the evidence before them, in particular that there was no evidence that this other person had been asked to kill the victim, and that other person had in fact stated that the shouts of the crowd were not directed at him. Julio Fernandes v. Prosecutor General, Criminal Appeal No. 7 of 2001, Ruling of the Court of Appeal, 29 June 2001, with Separate Opinion of Judge Frederick Egonda-Ntende, Nos. 13 and 14.

114. See the discussion at para. 20 of the Separate Opinion of Judge Egonda-Ntende, ibid. The majority ultimately found that the question of duress was not fundamental to the basis of the appeal: para. 12 of majority decision.

115. The Prosecutor v. Manuel Goncalves Leto Bere, alias Manuel Leto Bere, case No. 10/2000, Decision, 15 May 2001.

116. Note that during the trials interpreters regularly translate the Bahasa Indonesia word ‘jemput’ as ‘invite’, which in English creates the impression that the accused had a choice. This is not necessarily so, for in Bahasa Indonesia, ‘jemput’ can include picking someone up or fetching a person and the expectation is that the person is compliant.

117. Lospalos Decision, supra n. 68, paras. 935–936.

118. Erdemović Appeal Decision, Separate Opinion of Judge Cassese, supra n. 16, para. 50.

119. Public Prosecutor v. Jose Valente, supra n. 78.

120. Report on the Investigation of Human Rights Violations in East Timor (2000), KPP-HAM (Investigation Commission of the Indonesian Commission on Human Rights), (‘KPP-HAM Report’) para. 51; Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59 (2000) (‘Report of the International Commission of Inquiry’); Report of the Joint Mission to East Timor by the Special Rapporteur of the Commission for Human Rights on Extrajudicial, summary or arbitrary executions, the Special Rapporteur on torture, and the Special Rapporteur on Violence Against Women, UN Doc. A/54/660, 10 December 1999 (‘Report of the Special Rapporteurs’).

121. Case No. 5/2000, The Prosecutor v. Yoseph Leki, Judgement, 11 June 2001, p. 7.

122. Supra n. 77.

123. KOPASSUS are the special forces of the Indonesian Army. They are believed to have established, trained, equipped and directed the militias.

124. Amnesty International, East Timor: Seize the Moment, AI Index: 21/49/99, 21 June 1999.

125. In Mateus Tilman, the court held that he could have left the militia at any time during the months preceding the events charged, despite his claims that he had been forced to join. The Prosecutor v. Mateus Tilman, case No. 8/2000, Judgement, 14 June 2001. Also, in Jose Valente, the court held that he did not have to go with the militia group when they attacked independence supporters. Supra n. 78. Other examples include Agustino da Costa, supra n. 104, and Augusto Asameta Tavares, supra n. 104.

126. Prosecutor v. Yoseph Leki, supra n. 21, p. 8.

127. Ibid., p. 7.

128. Ibid., p. 9.

129. Separate Opinion of Judge Cassese, supra n. 16, para. 15.

130. This issue is clearly linked to the considerable resource disparity between the small East Timorese public defenders' office and the larger, internationally-run Serious Crimes prosecution and investigation unit. Necessary facilities such as transport to remote districts, telephones and money for witness expenses have not been made available to the public defenders. Surprisingly, this has not concerned the Special Panel, which has never in the course of proceedings inquired about the conditions under which the defence operate and whether there is a level playing field enabling them to develop their case on the same terms as the prosecution, let alone taking steps to assist in the creation of suitable conditions for the exercise of the right of defence. It is also suggested that in the particular circumstances of East Timor, where poorly trained local defence counsel have struggled to defend their clients with minimal resources, the interests of justice would require the Special Panel to ensure that at all stages of the proceedings the defence is being given equal opportunity to find evidence and develop its case as that enjoyed by the Prosecution. See Judicial System Monitoring Programme, The Prosecutor v. Joni Marques and 9 others (The Lospalos case), AJSMP Trial Report, February 2002, p. 23.

131. Section 33.2, Transitional Rules of Criminal Procedure, supra n. 7.

132. See KPP-Ham Report, para. 124, supra n. 120. Also, see Amnesty International, Paramilitary attacks jeopardise East Timor's future, ASA 21/026/1999 of 16 April 1999; Amnesty International, East Timor: Seize the Moment, AI, supra n. 124.

133. Independent Observer notes, on file with Caitlin Reiger.

134. Regulation 2000/15, supra n. 4, s. 21.

135. Supra n. 5. Indonesian law is derived from Dutch law and Art. 51 is not unusual. For example, it is similar to Arts. 122–124 of the 1994 French Penal Code, which provides that: ‘[1] A person is not criminally responsible if that person performs an act prescribed or authorised by legislative or regulatory powers. [2] A person is not criminally responsible if that person performs an act ordered by a legitimate authority, except if that act is manifestly unlawful.’

136. See Universal Declaration of Human Rights, Art. 11 (2); International Covenant on Civil and Political Rights, Art. 15.

137. From the start, defence counsel strenuously objected to prosecutions not specifically criminalized by international treaties or custom, let alone domestic law, but on the basis of a law passed after the acts had been committed.

138. Einsatzgruppen, supra n. 24, p. 472.

139. In Re List and others (Hostages Trial), United States Military Tribunal at Nuremburg, Feb. 19 1949, War Crimes Reports, 8,(1949) reported in Annual Digest and Reports of Public International Law Cases, 1948, ed. Lauterpacht, H., p. 34Google Scholar.

140. Dover Castle, 16 AJIL (1922) p. 704CrossRefGoogle Scholar. According to L.C. Green, under section 47(2) of the German Military Penal Code 1882, while the subordinate was bound to obey the orders of his superior, he would be punished as an accomplice to a criminal act if he knew that the order concerned an act criminal by either civil or military law and this was still German law at the end of the Second World War. ‘Superior Orders and the Reasonable Man’, in Green, op. cit. n. 40, at p. 260.

141. See U.S. Dep't of the Army Rules of Land Warfare, at 347 (Field Manual 27–10). Oppenheim's International Law, Vol. 2 (1906) took the position that members of the armed forces who commit violations ordered by their commander the member cannot be punished, for the commander is the one responsible: see Green, op. cit. n. 40, at p. 262.

142. Lauterpacht's amendments to the 1940 and 1944 editions of International Law, cited in Green, op. cit. n. 40, at p. 263.

143. Supra n. 141, Field Manual 27–10. Also see British Manual Amendment 34, April 1944.

144. IMT Judgment, supra n. 36, pp. 235–236.

145. Einsatzgruppen, supra n. 24, p. 472, 473, also p. 483–488.

146. The Trial of Admiral Masuda, cited in Green, op. cit. n. 40, at p. 265.

147. Ibid.

148. Bassiouni, M.C., Crimes Against Humanity in International Law, 2nd revised edn. (The Hague, Kluwer Law International 1999) p. 483Google Scholar.

149. Ibid.

150. Ibid.

151. Ibid.

152. Public Prosecutor v. Anigio De Oliveira, case No. 7/2001, Decision, 27 March 2002 (currently only available in Portuguese).

153. S 14.3 of Regulation 2000/15 is taken from the ICC Statute and sets out a broad range of bases for individual criminal responsibility; these include committing, ordering, aiding, abetting, otherwise assisting with the crime, or in any other way contributing to the commission of a crime by a group. The prosecutor had charged de Oliveira with several of these modes of responsibility for the murder. Supra n. 4.

154. Art. 56, Indonesian Penal Code, supra n. 5.

155. The only cases where superior orders have not been claimed are Public Prosecutor v. Mateus Tilman (case No. 8/2000); the lead defendant in the Lospalos case, Joni Marques; and Public Prosecutor v. Carlos Soares Carmona (case No. 3/2000), which is the only case not to directly involve politically-related violence but instead involved the murder of a person accused of witchcraft.

156. S. 21, Regulation 2000/15, supra n. 4.

157. Prosecutor v. Agustinho da Costa, supra n. 104.

158. Babinsa is an abbreviation of Bintara Pembina Desa, which is the title of a non-commissioned officer of a ‘trainer’ rank at the village level. The role of the babinsas in the TNI structure is discussed by DrBartu, Peter in ‘The militia, the military, and the people of Bobonaro District’ in Kingsbury, D., ed., Guns and Ballot Boxes: East Timor's Vote for Independence (Melbourne, Monash Asia Institute 2000) pp. 81, 83Google Scholar. It is possible that ‘Paul’, as a babinsa, was also a militia leader, but no clear evidence was ever led on this point.

159. Prosecutor v. Agustinho da Costa, supra n. 104.

160. The second Erdemovic Trial Chamber also accepted there had been superior orders and coercion on the basis of the accused's word alone, but this was not during trial but in the course of a guilty plea. Prosecutor v. Drazen Erdemovic, Sentencing Judgment, supra n. 89.

161. The Prosecutor v. Manuel Goncalves Leto Bere alias Manuel Lew Bere, supra n. 115.

162. Supra, p. 192.

163. See supra n. 116 for discussion on the translation of the Bahasa Indonesia word ‘jemput’ as ‘invite’ when it does not necessarily mean the person had a choice.

164. Prosecutor v. Francisco dos Santos Laku, case No. 8/2001, Judgment 25 July 2001.

165. In a recent trial, Public Prosecutor v. Lino de Carvalho (case No. 9/2001), the Public Prosecutor did call a police investigator to testify about the militia structures and links with the TNI. At the time of writing, this trial was not yet concluded.

166. See Kingsbury, D., ‘The TNI and the Militias’ and P. Bartu, ‘The Militia, the military and the People of Bobonaro District’, both in Kingsbury, Damien, ed., Guns and Ballot Boxes: East Timor's Vote for Independence (Clayton, Monash Asia Institute 2000)Google Scholar. See also the reports listed in n. 120.

167. See Report of the Special Rapporteurs, supra n. 120, para. 59–61; see also Chapter II, KPP-Ham Report, supra n. 120; Report of the International Commission of Inquiry, supra n. 120, paras. 135–141.

168. Report of the Special Rapporteurs, ibid.

169. See Chapter II, KPP-HAM Report, supra n. 120; Dunn, J., ‘Crimes Against Humanity in East Timor, January to October 1999: Their Nature and Causes’, in Masters of Terror: Indonesia's Military and Violence in East Timor in 1999, Canberra Papers on Strategy and Defence No. 145 (Canberra, Strategic and Defence Studies Centre, ANU 2002) pp. 60–74Google Scholar.

170. Report of the International Commission of Inquiry, supra n. 120, paras. 136–142; Conclusions, KPP-HAM Report, supra n. 120.

171. United States v. Calley, 48 CMR 19 (CMA 1973).

172. Joao Fernandes Appeal — Majority Decision, supra n. 75, p. 8.

173. Contrast the practice of the Special Panels with the IMT, which held that ‘Superior orders … cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification.’ Judgment of the International Military Tribunal for the Trial of the German Major War Criminals, Nuremberg, 30th September and 1st October, 1946. London: HMSO, Cmd. 6964, Reprinted 1966, pp. 90–92. See also Einsatzgruppen, supra n. 24, p. 480, where it was held that to plead superior orders, ‘one must show an excusable ignorance of their illegality’.

174. Magnis-Suseno, F., ‘Langsir Keprabon: New Order leadership, Javanese culture, and the prospects for democracy in Indonesia’, in Forrester, G., ed., Post Suharto Indonesia: Renewal or Chaos? (Singapore, Institute of Southeast Asian Studies 1999) p. 218Google Scholar.

175. Ibid., at p. 219: ‘In the Javanese conception, behaving in a respectful and rukun [avoidance of open conflict] way will in the end always pay dividends since the community will live in harmony and be free from disturbances, and individuals are protected and provided for by their community and their leaders.’

176. L.C. Green suggests that ‘the standard of measurement cannot be universal, but must depend on whether the accused is a civilian or a serviceman and whether the offence is of a kind that can be considered as being civil in character though committed by a soldier. If the act is essentially military in character and has been committed in war conditions, then the palpability must be looked at from the point of view of the reasonable soldier …’, Green, op. cit. n. 40, at p. 281.

177. At 31 May 2002, the Special Panels had concluded 15 trials against a total of 24 individual accused, all of whom have been convicted and sentenced. Of these cases, only the Lospalos case involved charges of crimes against humanity. Six of the ten accused in that case were acquitted of some charges but convicted on others. A further 12 cases involving crimes against humanity were due to be heard by the Special Panels but had not yet been completed at the time of writing.

178. Sergio Vieira de Mello, Statement on the occasion of the Security Council Open Debate on the situation in East Timor, New York (30 January 2002). See also Report of the Secretary-General on the Transitional Administration in East Timor, 17 April 2002, UN Doc. S/2002/432 at pp. 17–18.

179. See International Crisis Group, Indonesia: The Implications of the Timor Trials, 8 May 2002; Human Rights Watch, Justice Denied for East Timor: Indonesia's Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of UN Action, 20 December 2002.

180. The Commission was established by UNTAET Regulation 2001/10 of 13/7/01, UNTAET/ REG/2001/10. For an examination of the work of the commission, see Stahn, C., ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’, 95 AJIL (2001) p. 952CrossRefGoogle Scholar.