Maternus Bere and Alola - Legal Opinion

This is the legal opinion by Clinton Fernandes C.Fernandes@adfa.edu.au

Date: Mon, Sep 7, 2009 in response to the released of Martenus Bere by Government of East Timor.

Below is a legal opinion provided on the culpability of Martenus Bere in the abduction, rape and sexual enslavement of Juliana dos Santos, aka Alola (after whom the Alola Foundation is named).

Maternus Bere and Alola

The involvement of Maternus Bere in the Suai Church Massacre has been widely discussed. Less widely discussed is that Bere is also criminally responsible for the abduction, rape and sexual slavery of one of the better known names in East Timor – Juliana Dos Santos, also known as "Alola".

Maternus Bere was the commander (known as Danki) of one of five Laksaur militia sub-groups. His sub-group operated in Suai. Egidio Manek was the Danki of the Tilomar area sub-group. Both Bere and Manek – and the other Danki – had effective command and control of members in their subgroups.

Case number 09-2003 of the Special Panels for Serious Crimes documents how Egidio Manek, Maternus Bere and others in the Laksaur militia committed the Suai Church Massacre on 6^th September 1999. A brief summary from paras 228-237:

When members of the Laksaur militia arrived at the church, they surrounded the church compound along with the Indonesian military (TNI). They threw two grenades into the church compound and began firing. They entered the church compound and attacked the villagers who were hiding inside. During the attack, the TNI and members of the Laksaur Militia killed many civilians including women, children and three priests (Father Hilario Madeira, Father Francisco Soares and Father Tarsisius Dewanto). They killed between 27 and 200 civilians during the attack and injured many others. After the attack, Egidio Manek abducted Juliana Dos Santos aka Alola who was hiding at the Suai church at the material time and announced that Juliana would be his wife from that moment. Juliana was forcibly taken to West Timor.

Maternus Bere is also criminally responsible for the abduction, rape and sexual slavery of Alola.

The applicable law is contained in the statutes of all three international criminal tribunals (the International Criminal Tribunal for the Former Yugoslavia or ICTY, the International Criminal Tribunal for Rwanda or ICTR and the Special Court for Sierra Leone or SCSL). Paragraph 1 of the article common to all three statutes dealing with criminal participation refers to "[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime."

Egidio Manek is the person who directly committed the crime because his conduct falls within what the ICTY has described as "the direct personal or physical participation of the accused in the actual acts which constitute a crime"[1].

Maternus Bere is the person who participated in the crime by "aiding and abetting" Egidio Manek. Bere's conduct meets a qualitative and quantitative threshold because it had a "direct and substantial effect on the commission of the offence". His participation was substantial because "the criminal act most probably would not have occurred in the same way had not someone acted in the role that the accused had in fact assumed."[2]

Maternus Bere is an aider and abettor because he made a substantial contribution to the crime, which was committed both by Manek and by a plurality of persons, namely the other members of the Laksaur militia and the Indonesian military. Bere's assistance "does not need to constitute an indispensable element."[3] It is not necessary for Egidio Manek to be charged or convicted for Maternus Bere's liability to be established. It is well-established in law that prosecution of the principal offender may not have occurred. As the ICTR has noted, "all criminal systems provide that an accomplice may also be tried, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, guilt could not be proven."[4]

Bere did not even need to be physically present when the underlying crime was committed by Manek. A "relevant act of assistance may be geographically and temporally unconnected to the actual commission of the offence."[5]

Bere does not need to have shared Manek's plan or purpose to abduct, rape and enslave Alola, nor does he need to have shared Manek's criminal intent. According to the ICTY, "the principal may not even know about the accomplice's contribution". It is enough that Bere was aware that his action helped Manek in the commission of the crime, and intended to encourage such commission. All that is required for Intent to be shown is that Bere willingly did what he did.

For Awareness to be shown, it is not necessary that Bere be fully cognizant of the specificities of the crime that was committed by Manek, let alone of Manek's criminal intent. Bere is simply required to be aware of the risk that Manek might abduct, rape and enslave Alola. According to the Special Court for Sierra Leone, "the mens rea required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator."[6] According to the ICTY Trial Chamber, "it is not necessary that the aider and abettor should know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is as guilty as an aider and abettor."[7]

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[1] Kordic et al (IT-95-14/2-T), Judgment, 26 February 2001, para 376.

[2] Tadic (IT-94-1-T), Opinion and Judgment, 7^th May 1997, para 688.

[3] Kvocka et al (IT-98-30/1-A), Judgment, 28 February 2005, para 90.

[4] Akayesu (ICTR-96-4-T), Judgment, 2^nd September 1998, para 530.

[5] Rutaganda (ICTR-96-3-T), Judgment and Sentence, 6^th December 1999, para 43.

[6] Brima et al, SCSL Trial Chamber, para 776.

[7] Furundzija, ICTY Trial Chamber, para 247.