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Human Rights in West Papua
- an International Law Perspective
Ben Clarke
September, 2006
The human rights situation in West Papua raises a number of legal questions. Two are discussed here. The first section examines the issue of accountability for serious human rights violations in West Papua. This is followed by an analysis of whether the people of West Papua have a right of self determination, and if so, the ways in which it may be exercised.
Individual human rights violations in West Papua
Human rights are recognized under numerous international instruments as norms of universal application. The International Bill of Rights is binding on all States under customary law.[1] States therefore have an obligation to protect those within their borders from human rights violations and punish those responsible for such violations. The existence of gross human rights violations in West Papua is well documented. The Legal Aid Foundation in Papua and the Indonesian National Human Rights Commission Komnas HAM have confirmed 35 cases of torture by security forces in Papua during 2005 alone. The National Human Rights Commission of Indonesia found evidence that crimes against humanity were committed by the security forces in Abepura in 2000 and elsewhere in West Papua. These crimes have been committed with impunity.
Indonesia has ratified the International Covenant of Civil and Political Rights (1966). In doing so it has given the international community a solemn and binding commitment that those who violate human rights norms within its borders will not enjoy impunity. It has promised to take effective measures to halt human rights breaches by its security forces, police other state operatives. Human rights are peremptory norms of international law. The prohibitions on torture, summary executions, extra-judicial killings, forcible disappearances and rape are among a specialized class of norms that may not be breached in any circumstances. Derogation of these basic rights is never permissible. All of these crimes and others have been committed by agents of the Indonesian State in West Papua for decades. Indonesia has an obligation under international law to prosecute all of those responsible -including high level perpetrators. To date only a small number of those implicated in such crimes have been prosecuted. No convictions have been secured for crimes committed in Abepura in 2000.
In view of Indonesia's unwillingness to end impunity for serious human rights violations in West Papua, the international community has an obligation erga omnes to ensure that those responsible are brought to justice. For this reason the UN should establish an international tribunal or a mixed tribunal to deal with crimes against international law committed in West Papua.
The right of self determination
The right of peoples to self determination has long been recognized as a binding norm of customary international law.[2] Self determination is enshrined in the Charter of the United Nations (1945)[3] as well as other international treaties including Article 1 of the International Covenant on Civil and Political Rights. Indonesia has ratified both of these instruments. In doing so it has given a solemn undertaking to uphold the rights contained within them. The International Court of Justice has declared self determination to be a legal right with erga omnes character.'[4] It has also been identified by as a norm of jus cogens.[5] This means that any attempt by States or international organizations to undermine the exercise of this peremptory norm are invalid. Self determination has been invoked in at least five different contexts:[6] de-colonisation, [7] cessation,[8] struggles against alien occupation[9] and racist regimes, and the emergence of new states following the disintegration of a former State.[10] West Papuan independence movements have exercised their right to struggle against alien (Indonesian) occupation since the 1960s. Most have chosen peaceful methods of pursuing freedom. The General Assembly has repeatedly recognized the right of peoples subject to foreign occupation to struggle for self determination. Protocol I Additional to the Geneva Conventions also recognizes this right.
In 1969 the people of West Papua were deprived of their right of self determination through a flawed consultation process. Indonesian officials hand picked 1022 West Papuans to participate in an 'Act of Free Choice'. Some Papuan protestors demanding one vote one person, only to be taken away by Indonesian officials and never seen again. They are among the 100,000 West Papuans who have been killed or disappeared since Indonesian occupation began in 1961. John Saltford's Anatomy of a Betrayal 2002, exposes the UN's role in this flawed process. It also documents the bribery and intimidation of those who voted by Indonesia's intelligence group Opsus. These tactics resulted in a unanimous pro-Jakarta vote. Opsus and its agents later orchestrated the subversion of East Timor in 1975 and one Opsus operative went on to become a general who orchestrated militias attempts to stop East Timor going independent in 1999.[11]
The international community had an obligation erga omnes to ensure that peremptory norms are enforced and protected. [12] It failed to fulfill in this obligation in West Papua. The UN allowed the right of self determination to be derogated. The so called 'Act of Free Choice' was therefore invalid. Declassified US documents and a 740-page study by the Dutch historian Pieter Drooglever, commissioned by the Dutch Foreign Ministry in 2000, confirm the Act of Free Choice vote was a sham.[13] This report confirms what Mike Carlton (the ABC's Jakarta bureau chief in 1969) noted at the time. He was one of a handful of foreign journalists who were permitted to visit West Irian before the 'Act of Free Choice.' Carlton has noted that a cable from the US embassy in Jakarta to the US State Department stated "The Act of Free Choice (AFC) in West Irian is unfolding like a Greek tragedy, the conclusion pre-ordained."[14] UN officials have unofficially acknowledged that the process Act of Free Choice was fundamentally flawed.[15]
Mark Worth's films Act of No Choice and Land of the Morning Star (2004) contain archival footage of these events. The participants in the vote were anything but enthusiastic. Scenes of protest, and the reaction of plain clothed and uniformed Indonesian operatives, corroborate written accounts of these events.
Australia's Position on the Future of West Papua
In April 2006 Australia's Minister for Foreign Affairs Alexander Downer made clear Australia's view of the legality of the Act of Free Choice: 'Let me make it absolutely clear that the position of this government is that we support West Papua being part of the Republic of Indonesia.' This view does not reflect the sentiment of the Australian people. A Newspoll conducted in 2006 found that 77% of Australian surveyed did not believe Indonesia should have any future role in the governance of West Papua.[16]
Conclusions
West Papuans have indicated at a number of forums, protests and Morning Star flag raising ceremonies[17] a clear preference for independence over regional autonomy.[18] This preference has been strengthened by a number of factors: Jakarta's failure to implement in good faith the Special Autonomy Package, the assassination of peaceful advocates of freedom for West Papua, the prosecution of defence lawyers in West Papua for statements made in defence of clients, the intimidation of human rights organizations, and ongoing impunity for serious human rights violations committed by members of the Indonesian military, police and special forces in West Papua; no justice followed the murder, by Indonesian Special Forces, of West Papuan independence leader Theys Eluay in 2001 - seen by West Papuans as a transparent attempt by Indonesia to crush the pro-independence movement. These facts together with the flagrant denial of the peremptory right of self determination in 1969 underscores the need for a referendum on the future of West Papua. The international community has an obligation erga omnes to ensure that the people of West Papua have the chance to exercise self determination. This can be achieved through one person one vote election is held in the two provinces that constitute West Papua. Any such plebiscite must meet international best practices. It should be organized and supervised by the UN. The people of West Papua must be given the opportunity to exercise this collective right free from coercion and intimidation. Under international law they are entitled to nothing less. Indonesian agreement to UN controlled elections would be a tangible manifestation of its commitment to both the international rule of law and human rights.
Ben Clarke
Senior Lecturer in International Law, Human Rights Law and Criminal Law
University of Notre Dame Australia
PhD Candidate, Asia Pacific Centre for Military Law, University of Melbourne
The views expressed in this article are those of the author any not necessarily those of any university or organization.
[1]The International Bill of Rights is comprised of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and its first Optional Protocol.
[2]See Atlantic Charter of 14 August 1941 35 AJ (1941) Supp 191.
[3]See Article 1(2) and Article 55.
[4]East Timor (Port. v Aust.) 1995 ICJ 90 ,102.
[5]Yearbook of the ILC, Vol II, 1966, 248; Morgan 540 (citations omitted); Rein MŸllerson 'Jus ad Bellum: Plus ca change (Le Monde) Plus C'est law meme chose (le droit)?' (2002) 7 Journal of Conflict and Security Law 149, 169 (citations omitted). See also Alexander Orakhelashvili, Peremptory Norms in International Law (2006), 51 et seq.
[6]Simon Chesterman, Tom Farer, Timothy D. Sisk, Competing Claims: Self-Determination, Security and the United Nation (2001). http://www.usip.org at 20 February 2006.
[9]For an analysis of the complexities of the right of self determination in the context of Afghan resistance to Soviet occupation see David Ross 'Beyond the Soviet Invasion: Afghanistan and the Concept of Self Determination' (1990) 48 University Toronto Faculty Law Review 92.
[10]Recent examples include the emergence of new States upon the breakup of the former Yugoslavia.
[11]Hamish McDonald 'Decades Later, a Familiar Syndrome of Complicity'Sydney Morning Herald Saturday, April 8, 2006.
[12]Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).
[13]Hamish McDonald 'Decades Later, a Familiar Syndrome of Complicity' Sydney Morning Herald Saturday, April 8, 2006.
[14]Mike Carlton 'Handed over by the big boys, to brutal rulers' Sydney Morning Herald 8 April 2006.
[15] 'Papua Incorporation in Indonesian was a farce, top UN officials say' Associated Press 22 November 2001 cited in Papua Answers to Frequently Asked Questions, International Crisis Group Updated Briefing Asia Briefing No 53, 5 September 2006.
[16]Howard rejects Australian support for Papuan independence ABC World Today - April 19, 2006 http://www.abc.net.au/worldtoday/content/2006/s1619021.htm
[17]Prison sentences of up to 7 years have been imposed on those who raise the flag.
[18] See ÒIndonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian ControlÓ, (Yale Law School) available at http://www.westpapua.net/docs/papers/hr/02/yale-wphr.pdfand John Wing and Peter King ÒGenocide in West Papua? The role of the Indonesian state apparatus and a current needs assessment of the Papuan peopleÓ Sydney University available at http://www.arts.usyd.edu.au/centres/cpacs/West PapuaGenocide Rpt.05.pdf But see Papua Answers to Frequently Asked Questions, International Crisis Group Updated Briefing Asia Briefing No 53, 5 September 2006, pp 8-9.
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