Doe v. Lumintang, Civil Action No. 00-674 (GK)(AK) (D. D.C. 9/13/2001)
| Decision Date | 13 September 2001 |
| Docket Number | Civil Action No. 00-674 (GK)(AK). |
| Parties | JANE DOE, ET AL., Plaintiffs, v. MAJOR GENERAL JOHNY LUMINTANG, Defendant. |
| Court | U.S. District Court — District of Columbia |
This is an action for, inter alia, torture, wrongful death, summary execution, assault, battery and intentional infliction of emotional distress brought by citizens of East Timor Jane Doe and John Does I-V, on their own behalf and on behalf of their deceased relatives. Major General Johny Lumintang, an Indonesian military officer, is named as the defendant, in his position of Vice Chief of Staff of the Indonesian military, for designing, ordering, and directing a campaign of violence and intimidation against the people of East Timor which resulted in the wrongs suffered by the plaintiffs. Jurisdiction in this case is founded upon the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, the Torture Victim Protection Act ("TPVA"), Pub. L. No. 102-256, 106 Stat. 78 (1992), codified as 28 U.S.C. § 1350 note, and principles of supplemental jurisdiction, 28 U.S.C. § 1367.
This case is before the Court for trial on damages, pursuant to Fed. R. Civ. P. 55(b)(2). On November 8, 2000, United States District Judge Gladys Kessler entered a default judgment against Defendant Major General Johny Lumintang, who failed to file an Answer or otherwise appear.1 On March 21, 2001 the case was referred to the undersigned for all purposes, including trial. On March 27-29, 2001, the Court conducted a non-jury trial to establish the amount of damages. At trial, plaintiffs presented the testimony of eight witnesses: Richard Tanter, Professor of International Relations and Comparative Politics at Japan's Kyoto Seika University; John Doe III; Jane Doe; Theodore Folke, documentary filmmaker for the United Nations; John Doe II; Arnold Kohen, author on East Timor and consultant for the human rights organization The Humanitarian Project; Ian Thomas, cartographer and remote sensing specialist; and Estella Abosch, social worker and member, Advocates for Survival of Torture and Trauma. In addition, plaintiffs presented approximately 40 exhibits in support of their claims, including videotaped depositions of Sertorio Junior, a friend of John Doe I who worked with him for East Timor's independence, and John Doe IV. Because the defendant Major General Lumintang has presented no defense, the Court will accept the plaintiffs' uncontroverted evidence as true. See, e.g., Elahi v. Islamic Republic of Iran, 124 F. Supp.2d 97, 99 (D.D.C. 2000).
Upon careful consideration of the evidence presented at trial and the entire record in this case, the Court finds that a judgment for damages shall be rendered in favor of plaintiffs as more fully set forth below.
FINDINGS OF FACT
1. Timor is a Pacific Ocean island which lies approximately 400 kilometers northwest of Darwin, Australia. In the 19th Century, European colonization of Southeast Asia resulted in the division of the Island of Timor into two pans. The western part was under Dutch control; the eastern part under Portuguese control. When the Republic of Indonesia was formed as a result of the war against the Dutch between 1945 and 1949, Dutch West Timor became part of the Republic of Indonesia. East Timor remained as a Portuguese colony at that time. That was the situation which prevailed up until December 1975.
2. Beginning in August, 1975, there were increasing numbers of border incursions into East Timor by Indonesian Armed Forces. On December 7, 1975, Indonesia invaded East Timor proper. Between 133,000 to 200,000 East Timorese disappeared during the period 1975 to 1979 as a result of Indonesian Army actions. Numerous U.N. Security Council resolutions condemned this action.
3. Between 1975 and 1979, Defendant Lumintang was a lieutenant or captain in the infantry. He took part in the Indonesian invasion of East Timor. Although he was assigned principally to East Timor, he took part in operations in Irian Jaya, which is the western part of the island of New Guinea. Irian Jaya was another area where the Indonesian Armed Forces brutally suppressed local resistance, including bombings of villages.
4. Defendant later held senior command positions in field operation posts. From 1993 to 1994, Lumintang was the Commander of Military Resort Command in East Timor, identified as "Koren 164". Subsequently Lumintang was promoted to the position of Commander of the First Infantry Division of "Kostrad," the army strategic reserve command. In 1996, Lumintang became the Chief of Staff of Military Area Command 8, which included the province of Irian Jaya, the western part of New Guinea and also the Island of Moluccas to the north.
5. In 1998, after widespread discontent in Indonesia proper, President Suharto resigned and his vice president, Dr. Habibie, became the President of Indonesia. On January 28, 1999, President Habibie made an unexpected announcement that he was prepared to consider the possibility of a ballot in East Timor to allow the East Timorese people to decide between "autonomy" as a special part of Indonesia or independence.
6. On January 18, 1999, Lumintang became the Army Deputy Chief of Staff. As a Lieutenant General, Lumintang held the second highest rank in the Tenata National Indonesia ("TNI"), the Indonesian armed forces. He was directly responsible to the Army Chief of Staff, who in turn was directly responsible to the Commander of the Armed Forces. See March 27, 2001 Trial Transcript at 42-48.
7. At trial, Professor Richard Tanter, an expert in the Indonesian military, explained that Lumintang's duties as the Army Deputy Chief of Staff were as follows:
(a) The Deputy Chief of Staff of the Army is the principal aide and adviser to the Army Chief of Staff, and has the duty and obligation to lead, organize and guide staff and leadership bodies, and Central Service and Executive bodies, as well as other duties as instructed by the Chief of Staff, and other responsibilities as follows:
(1) To make proposals and suggestions to the Chief of Staff on matters concerning his area of responsibility;
(2) To lead the Inspector General, General Staff, Special Staff, and Budget and Planning Staff, in formulating plans and programs of the execution of the Army's duties;
(3) To ensure coordination is effected and maintained between Army Headquarter Staff and Army field bodies and commands; between Army Headquarter staff and the Headquarter Staff of other parts of the Armed Forces and Police, and Army Headquarter staff and the staff of Armed Forces Headquarters and the staff of the Military Defense and Security.
(4) To coordinate, control and supervise the execution of Army decisions, plans, and programs, as well as personnel, material, and financial arrangements;
(5) To coordinate, supervise, and give direction to the staff Central Service and Executive bodies.
(b) Whenever the Deputy Chief of Staff is prevented from carrying out his duties he shall be replaced by an officer appointed by the Army Chief of Staff.
(c) The Deputy Army Chief of Staff is responsible in the execution of his duties as outlined above to the Army Chief of Staff. See March 27, 2001 Trial Transcript at 73-75.
8. The Indonesian Army's operations are formally carried out through three commands: (1) Military Area Command ("Kodam"), and within that, the Military Resort Command ("Koren"); (2) Special Forces ("Kopassus"); (3) Army Strategic Reserve Command ("Kostrad"), which is basically the fighting part of the army. As Army Deputy Chief of Staff, the defendant had direct responsibility for all three. See Id. at 44.
9. In East Timor, paramilitary auxiliary forces, commonly known as militias, were also under the command of the Indonesian Army. Although these militias were present throughout Indonesia's occupation of East Timor, in late 1998, many additional militias were formed. In August 1998, they became effectively part of the Indonesian Armed Forces. The militia expansion, formation, and arming continued rapidly. In December 1998 and January 1999, new and more militias were formed, and they spread throughout the territory. The militias were instructed, supported, and guided by Indonesian Army officers. They also received arms directly from the Indonesian Military Area Resort Command.
10. Militia assaults on unarmed villages throughout East Timor began after Indonesian President Habibie's January 1999 announcement.
11. On February 16, 1999, as part of the military's coordination with the militias, a meeting took place in East Timor involving Lieutenant Colonel Sudrejat, who was head of the Combined Intelligence Task Force, part of the Special Forces Command, Kopassus, and all of the principal militia leaders. At the meeting, Sudrejat demanded that independence leaders and their families be "wiped out." Sudrejat operated within Kopassus. This command position was directly subject to the command of the Army Chief of Staff for planning, operations and for the implementation of operations. Lumintang, as Deputy Chief of Staff, was specifically responsible to supervise the implementation of Lieutenant Colonel Sudrejat's activities with Kopassus. See March 27, 2001 Trial Transcript, 75-76.
12. On the 26th of March, 1999, a group of senior Indonesian civil and military officials at the Military Headquarters in East Timor's capital city, Dili, met with militia leaders. At that meeting, the Governor of East Timor, Abilio Soares, directed the militias to prepare to liquidate all senior pro-independence people and their parents, sons, daughters, and grandchildren. If they sought shelter in the churches, they were to be killed along with the nuns and priests. Id. at 98.
13. One place Soares' order was implemented was in Liquica, a...
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