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This is the Final Report of the Judges who participated in the hearings held in the Nieuwe Kerk, The Hague, Netherlands from 10 to13 November 2015. Before the hearings, the judges received the Indictment and Prosecution Brief, as well as extensive background documentary material in the form of a Research Report of over six hundred pages.
During the four days of hearings, the judges heard the oral submissions of the prosecutors, as well as the testimony and responses to questions of more than 20 witnesses (some of whom testified with their identities protected under pseudonyms and/or behind screens). The judges also received several hundred pages of documents, tendered as evidence. The prosecution presented its case as nine counts, alleging the commission of the following crimes against humanity: (1) Murder, (2) Enslavement, (3) Imprisonment, (4) Torture, (5) Sexual Violence, (6) Persecution, (7) Enforced Disappearance, (8) Hate Propaganda and (9) Complicity of Other States.
Following the hearings, the judges examined the evidence and supporting material further, in their preparation of this Report. Helen Jarvis and John Gittings prepared and edited the Report, assisted by Shadi Sadr, Mireille Fanon-Mendes France and Zak Yacoob. Judge Yacoob provided a legal overview of the text. The Report amplifies and provides reasoned justification for the Judges’ Concluding Statement, delivered during the final session of the hearings on 13 November 2015 (see A3 below). It begins by addressing the overarching question of responsibility for the mass murders and other crimes; it then focuses on the counts presented by the Prosecution and in an amicus curiae Brief submitted to the Tribunal; and concludes with a series of findings and recommendations.
It is regrettable that the State of Indonesia did not accept the invitation to participate in the hearings or make submissions to the Tribunal. The governments of the United States, the United Kingdom and Australia, also did not accept the invitation extended by the Tribunal. The judges welcomed the willingness of individual members of Indonesian National Human Rights Commission, Komnas HAM, and the National Commission on Violence Against Women, Komnas Perempuan, to brief the Tribunal.
It should be noted that some significant though partial steps towards addressing these issues have been taken in Indonesia since the Tribunal was held, as outlined in Appendix D2.
We wish to acknowledge in the first place the fundamental contribution of those eyewitnesses who had the courage to come forward to testify on facts that have touched their lives profoundly and forever. They are the most qualified representatives of the victims, whose numbers will never be known and whose suffering could never be described in full. We also recognize the contribution of many others, victims and witnesses, who by testifying in recent years—sometimes at personal risk—to the Indonesian national human rights institutions Komnas HAM and Komnas Perempuan, or in print or public forums, have also helped to throw light on the obscurity of the past.
We thank all those who organized and participated in the Hearings in The Hague in November 2015, and the Registrar, Ms. Szilvia Csevár and her team.
We express our thanks to Nursyahbani Katjasungkana SH and Dr. Saskia E. Wieringa and the IPT Foundation for inviting us to act as members of the Panel of Judges and for publishing this Report.
In preparing this Report, we have been helped by the work supplied in oral or written form to us, or already published, by a number of scholars, both Indonesian and non-Indonesian, who have conducted significant research in this field. Their contribution to our knowledge is recorded in footnotes and in the Select Bibliography. However, we pay special tribute to the late Professors Ben Anderson and Ruth McVey of Cornell University for their pioneering work, and we thank Cornell Southeast Asia Program Publications for their kind permission to reproduce a substantial extract from Anderson’s essay on “How did the Generals Die?” (Appendix D1.a).
We would like to thank Dr. Bradley Simpson, University of Connecticut, for his help in locating key diplomatic documents, and for permission to publish the extract from an article by him (Appendix D1.b). We thank Dr. Jess Melvin, Yale University, for permission to quote from an unpublished article by her (in Section B2, “Chain of Command”). We thank Mathias Hammer for permission to quote from his article cited also in Section B2. We also acknowledge the Creative Commons policy of Amnesty International under which we reproduce the material in Appendix D1.c).
Finally, we extend our appreciation to Helene van Klinken, the text editor, and the teams who prepared the Indonesian translation, as well as the print and electronic versions of this Report.
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