Category: News alert

The legal road for West Papua: a dead-end?

The legal road for West Papua: a dead-end?

 

Jason MacLeod[1] and Brian Martin[2]

 

Legal actions might assist the West Papuan struggle for freedom, but this approach is extremely difficult and entails significant risks. Using the courts plays to the opponents’ strengths: it may not do much to erode Indonesian rule in West Papua, and risks reinforcing it. Priority needs to be put on nonviolent strategies involving large numbers of ordinary people, particularly inside West Papua.

Risks of a legal strategy

Firstly, using legal channels requires considerable money and resources and thus restricts involvement by ordinary people. Even with high profile pro-bono support, any legal case will be extremely expensive. Although West Papua is rich in natural resources, the movement is short on cash. The Indonesian government will do all it can to delay and derail the case going to court, both in Indonesia and internationally. If the case does make its way to the courts, the Indonesian government will spare no expense in fighting it. Legal battles are not won solely by money, but it definitely helps. In court, the movement will be fighting an opponent with more money and resources.

Secondly, a legal strategy favours the powerful. In terms of access to people of influence on the world stage, the Indonesian government has more power than the movement. Government power is not the only kind of power operating, but it is worth factoring the Indonesian government’s considerable international influence into an assessment of whether to pursue legal actions or how such a strategy might be strengthened.

Thirdly, there are technical legal issues. There is a risk that the case might never be heard simply because the court accepts objections such as that the plaintiffs are mischievous and or the court does not have jurisdiction. Even if the case does get to an international court there is no guarantee the challenge will be successful. A failure to win the case, even on technical grounds, could undermine the cause for self-determination by giving a legal stamp of approval to the Act of Free Choice.

Fourthly, even if the case is successful, there is no guarantee of any subsequent political change. This is the lesson from many other struggles relying on courts and official bodies.

Consider the United Nations. There have been numerous resolutions by the UN General Assembly and Human Rights Commission condemning the Indonesian government’s invasion of East Timor and the subsequent human rights violations committed under the occupation. All were ignored by the Indonesian government, some for decades.

In the 1990s, the International Court of Justice was asked to rule on the legality of nuclear weapons under international law. The court gave an opinion, some parts of which supported the goals of anti-nuclear campaigners. However, no government with nuclear weapons took any substantial action, such as moving to disarm, in response to the court opinions.

The situation is similar in West Papua. The Indonesian government’s occupation is clearly illegal, as Saltford[3] and Drooglever[4] have shown convincingly. The Indonesian Government will be unlikely to give up its rule of West Papua just because an international court rules the occupation illegal.

Finally, a legal strategy could act as a dampener on dissent inside West Papua. It could reinforce the belief that Papuans themselves don’t have to actively struggle for their own liberation, because powerful outsiders will save them.

Courts are examples of “official channels” – and they do not work well when dealing with powerful perpetrators, such as governments. People often believe that official channels provide justice, yet they heavily favour those with more money and power. Official channels are usually very slow, can be expensive, and restrict opportunities for non-experts to participate. Issues are taken out of the public domain and moved it to more restrictive arenas, such as courts, that are usually less sympathetic. Even when official channels come up with good recommendations, governments often do not act on them.[5]

The case of West Papua is essentially about power politics and vested economic interests. Therefore, winning in the court of public opinion (in other words building a powerful social movement) and raising the political and economic costs of the Indonesian government’s continued occupation will be more decisive than a legal victory. However, the two strategies could be complementary.

 

Strengthening a legal case through building a people’s movement

In the past 25 years, international boundaries have been dramatically redrawn and numerous countries have become independent. On 9 July 2011, South Sudan became the world’s newest state. Before that Kosovo and East Timor became independent. During the late 1980s and early 1990s several republics of the former Soviet Union also became independent. The overwhelming majority – with the exception of Romania – did so through nonviolent means. Some, like Estonia, Latvia and Lithuania, won national liberation even though half their population was made up of Russian immigrants. What was decisive about all these movements was that they undermined the occupiers’ legitimacy and disrupted their rule. That outcome can be achieved through violent or nonviolent action.

By nonviolent action we mean sustained, unarmed and extra-parliamentary collective action in the pursuit of political and social goals. Nonviolent action has been used in dozens of countries. Also called people power or civil resistance, nonviolent campaigns have ousted dictators, resisted coups and been effective in challenging racism, exploitation and other injustices.[6]

The history of the international movement against nuclear weapons shows that governments have been most constrained when protest is vigorous. When protest has waned, military races have accelerated.[7]

Recent research into  self-determination struggles waged between 1900 and 2006 shows that struggles for independence or national liberation and territory are very difficult to win, even more difficult than removing a dictator like Suharto or Mubarak. Chenoweth and Stephan compared whether armed or nonviolent struggle was more likely to produce self-determination outcomes (like independence). They found that violent and nonviolent struggles had roughly equal chances of succeeding – about 25%.[8]

With equal odds of success, nonviolent struggle is definitely more desirable: it causes less loss of life, allows for greater participation of ordinary people, and lays the basis for a free and open society after independence. In contrast armed struggle results in higher casualties, less participation and a greater likelihood of post-independence repression. Mixing armed and nonviolent struggle tends to contaminate the gains won by nonviolent struggle.

So what helps these movements succeed? Specifically, what might improve the prospects of the West Papuan freedom movement? Here are some possibilities that could be part of a nonviolent struggle.

  1. Make the violence of the Indonesian government and the nonviolent resistance of the Papuans visible to transnational networks that mobilise on behalf of Papuans.
  2. Expose the failure of governance in West Papua by withdrawing support for, or co-opting, state institutions like the Majelis Rakyat Papua (MRP), Dewan Perwakilan Rakyat Papua (DPRP – the two Provincial parliaments in Papua Province and Papua Barat Province), local parliaments (DPRD – Dewan Perwakilan Rakyat Daerah) and the civil service.
  3. Use nonviolent sanctions to impose economic and reputational costs on transnational corporations in West Papua.
  4. Take the struggle to mainstream Indonesia and the societies of the Indonesian government’s elite allies, for example Australian and British governments and corporations.
  5. Coordinate with transnational activist networks to alter the Indonesian government’s willingness to maintain the occupation and to affect its capability to do so.

When it comes to challenging the Indonesian government’s legitimacy in West Papua, it is also vitally important that local Papuan and transnational solidarity movements continue to expose not only the historical denial of self-determination but also the ongoing failure of governance. This includes collecting and publicising the testimonies of surviving participants in the Act of Free Choice, participating in strikes, boycotts, noncooperation with Special Autonomy, establishing autonomous cultural, religious, economic and political institutions and other forms of mass based nonviolent challenges to Indonesian rule. Student and youth groups in particular have taken many initiatives; other groups can become more active, including churches, members of the MRP, members of the Papuan civil service, teachers, health workers, Papuan workers in resource extractive industries – and people like those gathered here today.

A legal strategy has the potential to strengthen the case that Indonesian rule in West Papua is totally illegitimate, but only if, at the same time, Papuans themselves are actively refusing to cooperate with, and nonviolently disrupting, Indonesian rule in West Papua. Faced with an adverse legal opinion, but without sustained and widespread protest, the Indonesian government will simply and legitimately point out that Papuans are participating in elections, that local Papuan politicians are in the positions of Governor and Bupati, that the MRP, provincial and local parliaments represent Papuan interests, and that there is a large Papuan civil service running the country.

A legal strategy without a powerful people’s movement is like a bird of paradise with only one wing. It looks appealing but it won’t fly.

[1] Solidarity activist, civil resistance educator and doctoral candidate at the School of Politics and International Studies at the University of Queensland.

[2] Professor of Social Sciences, University of Wollongong, Australia, http://www.bmartin.cc/.

[4] Pieter Drooglever, An Act of Free Choice: Decolonisation and the Right to Self-Determination in West Papua, Oxford: Oneworld Publications (2009)

[5] Brian Martin, Justice Ignited: The Dynamics of Backfire, Lanham, MD: Rowman & Littlefield (2007); “Backfire materials,” http://www.bmartin.cc/pubs/backfire.html.

[6] Kurt Schock, Unarmed Insurrections: People Power in Nondemocracies, Minneapolis: University of Minnesota Press (2005); Gene Sharp, The Politics of Nonviolent Action, Boston: Porter Sargent (1973); Adam Roberts and Timothy Garton-Ash, Civil Resistance and Power Politics: The Experiment of Nonviolent Action from Gandhi to the Present, Oxford: Oxford University Press (2009).

[7] Lawrence S. Wittner, The Struggle against the Bomb (3 volumes), Stanford, CA: Stanford University Press, 1993–2003).

[8] Erica Chenoweth and Maria Stephan, Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict, New York, NY: Columbia University Press (2011).

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BBC: US Firm Freeport Struggles To Escape Its Past In Papua

August 8, 2011By Karishma Vaswani BBC News, JakartaThe US mining firm Freeport McMoRan has been accused of everything from polluting the environment to funding repression in its four decades working in the Indonesian province of Papua. A recent spate of strikes by workers has brought all those uncomfortable allegations back to the surface.

“Ask any Papuan on the street what they think of Freeport, and they will tell you that the firm is a thief,” said Neles Tebay, a Papuan pastor and co-ordinator of the Papua Peace Network which campaigns for more rights for local people.

“It is in the interests of the Indonesian government that Freeport stays in Papua because it pays so much money to the state.”

For decades, a small number of Papuans have fought an armed struggle for independence from Indonesia.

But Neles Tebay believes the US mining firm plays a crucial role in that struggle: “Papua will never become independent as long as Freeport is in Papua.”

Yet Freeport says it provides vital jobs and wealth to the people of Papua. It is a decades-old row.

Massive profits

In the mid-1960s, Indonesia was undergoing a political transformation – and facing potential economic collapse. The government led by General Suharto was desperate to gain legitimacy with the international investment community – a hard task when Indonesia was seen as a risky market.

Suharto got the legitimacy he was looking for in 1967 – when Freeport became the first foreign company to sign a contract with the new government. In exchange, Freeport got access to exploration and mining rights for one of the most resource rich areas in the world.

In 1988, Freeport literally struck gold, finding one of the largest known deposits of gold and copper in the world at Grasberg in Papua.

Today, Freeport is one of Indonesia’s biggest tax-payers. In the last five years the firm says it has paid about $8bn (£5bn) in taxes, dividends and royalties to the Indonesian government. In the second quarter of this year alone, the company saw its profits double to $1.4bn.

But all of that money has yet to buy Freeport the reputation it needs in Papua. Thousands of Papuan workers walked out last month complaining about their wages, which they say are a fraction of what their international counterparts get.

Most Papuans believe that a contract Freeport signed with the Indonesian government in 1967 is invalid, because it was signed two years before Papua was officially incorporated into Indonesia by a controversial referendum.

The company says it signed a new 30-year contract with the Indonesian government in 1991, with provisions for two 10-year extensions.

But Papuans dispute the length of the deal, and the number of extensions Freeport has been able to get from the Indonesian government. Critics say Suharto wrote a blank cheque for Freeport, allowing the company to operate in any way it chose with little regard for consequences.

“The initial contract started in 1967, and was meant to end in 1997,” said Singgih Wigado, director of the Indonesian Coal Society.

“But in 1991, Suharto’s government renewed it – and then extended it for another 30 years, so now it ends in 2021. But Freeport is also entitled to two extensions during this period – of 10 years each. So Freeport’s contract really only ends in 2041.”

‘Law unto themselves’

By then, environmentalists allege that Freeport will have not only ripped all of the mineral wealth from Papua’s soil but it will also have destroyed the local waterways and killed off the marine life in the rivers nearest to the mine.

The lobby group Indonesian Forum for the Environment accuses Freeport of dumping hazardous waste into rivers.

“We’ve seen no improvements in their operations. The local communities are suffering because of Freeport’s presence in Papua,” said the group’s Pius Ginting.

But Freeport disputes the claims, saying that it uses a river near the mine to transport waste and natural sediments to a large deposition area. This method, the company says, was chosen because studies showed it was the most feasible way of disposing of the waste, and the environmental impact caused by its waste material is reversible.

In a statement, the company argued that the current arrangement with the government was fair, and has resulted in significant benefits.

Some of those significant benefits include providing employment to scores of Indonesian police who are mandated by Indonesian law to protect the Grasberg mine. This used to be the job of the Indonesian military, who are still sometimes asked to provide extra support for the mine by the police.

Freeport estimates that it spent $14m on security-related expenses in 2010.

But human rights groups say Freeport is effectively financing the Indonesian military in Papua, and is turning a blind eye to the soldiers’ alleged human rights abuses in the province.

Andreas Harsono of Human Rights Watch says there are about 3,000 troops in the area, some of whom “tend to act as a law unto themselves”.

“They sometimes go beyond their duties of providing security to Freeport – and are also believed to be involved in illegal alcohol sales and prostitution,” he says.

The Indonesian military has consistently denied any wrongdoing in Papua.

Freeport defends its use of police and soldiers to guard the Grasberg mine, saying it is mandated under Indonesian law. Freeport has never been implicated in any human rights abuses allegedly committed by the Indonesian military in Papua.

Nevertheless, the company remains hugely controversial in the restive province.

“Freeport is a symbol of everything that is wrong with Papua,” said pastor Neles Tebay.

“Indigenous Papuans want to feel like they have control over their own future – and that means a right to safeguard their natural wealth.”

The BBC has requested to travel to Papua and visit the Grasberg mine, but access has so far been denied by Freeport.

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Empty promises whitewash Freeport’s rights, responsibility record

 http://etanaction.blogspot.com/2011/08/empty-promises-whitewash-freeports.html

Special for ETAN‘s  Blog

by David Webster

What does a mining company need to do to get a top score for “corporate social responsibility”?

Freeport's contribution to Papua's welfare - Riverine tailings pollution

To judge by the recent “100 Best Corporate Citizens List”, all it takes to finesse a long and controversial record of human rights abuses is to come up with a piece of high-minded rhetoric, then carry on as usual.

Human rights advocates and those who have studied the record of Freeport McMoran in West Papua were startled to learn that Corporate Responsibility Magazine had named Freeport as the 24th-best corporate citizen in America (click for the full list). More startling still, the company scored well based mainly on a sixth-place ranking in the human rights category.

How is this possible? Well, the survey’s methodology seems to pay no heed to human rights performance. Only human rights rhetoric matters. And in that, Freeport excels. A strong written policy on human rights declares: “Freeport-McMoRan does not tolerate human rights transgressions.” It points to rights risks in West Papua, Peru, and the Democratic Republic of Congo, and adds that PT Freeport Indonesia policy is to “notify the direct commanders of the perpetrators” in cases where human rights allegations are made against Indonesian security forces. Since reputable human rights groups suggest that the top ranks of the security forces are implicated in widespread human rights violations in West Papua, this is hardly striking at the root of the problem.

As local people have pointed out, and researchers have confirmed, Freeport’s performance is a far cry from the written policies. The main trouble is intimate ties to Indonesian security forces.

Security forces may be implicated in the murder of American citizens near the Freeportmine, as Eben Kirksey and Andreas Harsono have reported.

Violence around the mine is used by security forces to target and scapegoat local people. In 2005, the New York Times revealed thatFreeport paid the security forces more than $10 million in 2001 and 2002. Payments are now made “in-kind” rather than in cash. The local Amugme people have long protestedFreeport seizure of their lands. Pictures of Freeport’s Grasberg mine from space (left) show the scale and environmental impact in the mountains that are home to the Amungme.

And lest all of this be hailed as “old news,” the Amungme filed a lawsuit last year sayingFreeport had taken their lands illegally. Meanwhile, the Indonesian army’s presence around Freeport, and the company’s close ties to Indonesian security forces, were reinforced this year. The continuing alliance between Freeport Indonesia and the Indonesian security forces is likely to exacerbate, rather than improve, the human rights situation.

None of these reports are taken in to account in the “100 Best Corporate Citizens List.” All the human rights indicators measure “human rights disclosure” and the sole source, according to the methodology details, comes from “Company public disclosures” – a corporation’s own information about itself.

The methodology, in other words, measures promises, not performance. There are parallels to the debate over whether companies accused of operating sweatshops overseas can be trusted to police themselves, or should accept independent monitoring. Thus the list cites the voluntary “Sullivan principles” first created under the Reagan administration and welcomed by companies resisting demands to divest from apartheid South Africa. AndFreeport boasts of adherence to the Voluntary Principles on Security and Human Rights, launched by the British and American governments in 2000.

The key word here is “voluntary.” As with the mining industry globally and with businesses jumping on the corporate social responsibility (CSR) bandwagon more generally, companies are happy to promise good performance, as long as no one will be looking over their shoulders.

So perhaps it’s no surprise to learn that Corporate Responsibility Magazine is in fact published on behalf of the Corporate Responsibility Officers Association, a body made up of many of the companies being judged, and steered by such firms as Domtar and KPMG.Freeport is listed as a “recent member” of the CROA. It’s advanced in the listings – it was ranked 83rd in 2010.

The problem here isn’t just the “corporate social responsibility” methodology, but the entire concept of “CSR”. It can all too often be used by companies to buy their way out of “corporate social irresponsibility.”

Freeport is no champion of the best values of corporate citizenship: For human rights activists, it’s long been a poster child for corporate irresponsibility. A list of good corporate citizens with Freeport winning laurels demonstrates more than flaws in the study. As George Monbiot has written of climate change credits, the lists offer corporations a new form of medieval European Catholic “indulgences,” forgiveness for any form of offence. Jeff Ballinger recently pointed out on this blog that companies like Nike are wrapping themselves in the CSR garment to burnish their corporate images, despite continuing disregard for many labor rights. Freeport, too, is now having itself measured for a fine CSR wardrobe.

—-

David Webster is an assistant professor of International Studies at the University of Regina inSaskatchewan, Canada. He is a former coordinator with the East Timor Alert Network/Canada.

see also

West Papua Report (monthly)

ETAN/WPAT: Statement on the operations of the Freeport McMoran Mine in West Papua, to the U.S. Senate hearing on Extracting Natural Resources: Corporate Responsibility and the Rule of Law

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New West Papua Project REPORT LAUNCH at the University of Sydney

CPACS_WPP_TNI-in-Papua_Report_Launch_flyer

Flyer Attached: Please join us as we launch the latest report from the West Papua Project at the Centre for Peace and Conflict Studies, The University of Sydney

Anatomy of an Occupation: The Indonesian Military in West Papua
By Jim Elmslie, Camellia Webb-Gannon and Peter King

REPORT LAUNCH

with Mark Davis from Dateline

Tuesday August 16, 18:00 – 19:30

Macleay Museum, The University of Sydney


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Indonesia food security project threatens Papuan way of life – activists

http://www.trust.org/alertnet/news/indonesia-food-security-project-threatens-papuan-way-of-life-activists

Source: Alertnet // Thin Lei Win

05 Aug 2011 14:07

NOTE: West Papua Media proudly provided fixing services for Reuters AlertNet for this article and further investigations.  

A member of the Koroway tribe walks up a ladder to his house at a forest nearMerauke city in Indonesia’s Papua province in this May 18, 2010 handout photo. REUTERS/Suntono-Indonesia statistic agency/Handout

By Thin Lei Win

BANGKOK (AlertNet) – Indigenous Papuans are at risk of further marginalisation and the forests and ecosystems on which they rely face destruction due to an ambitious food security project by the Indonesian government, activists say.

Under MIFEE (Merauke Integrated Food and Energy Estate) plans, 1.63 million hectares of forest which forms the basis of life for some 200,000 indigenous people in the Merauke area would be used to grow rice, palm oil, soya bean and corn among other crops.

Indonesia is seen as a key player in the fight against climate change and is under intense international pressure to curb its rapid deforestation rate and destruction of carbon-rich peatlands.

Activists accuse the authorities of not sufficiently consulting the Malind Anim people about the project, which they say pose a double threat to local Papuans. Not only would they lose their customary lands, but they would also face an influx of migrants from the rest of Indonesia — further marginalising communities that feel disenfranchised by what they say is the government’s exploitation of natural resources at their expense.

“If this project goes ahead, it means we will lose everything – we will lose our land, our culture, our livelihood, our food,” Rosa Moiwend, a Papuan activist whose family still lives in Merauke, told AlertNet.

The transition from forest to farm and plantation land would have a “tremendous” impact on natural ecosystems, Carlo Nainggolan from Indonesian rights group Sawit Watch, said.

“Indigenous people who have made use of natural forests to meet necessities of life will experience a dramatically decreased quality of life and well-being,” he said.

Department of Agriculture officials did not respond to a request for comment.

STRAINED TIES

Papua, two provinces on the west half of New Guinea island, has long suffered strained ties with Indonesia which took over the area from Dutch colonial rule in 1963. And this week, thousands of indigenous Papuans them marched on the parliament in the capital of Papua, demanding a referendum on independence from the archipelago.

Despite being home to a mine with the world’s largest gold and recoverable copper reserves, Papua is one of the least developed regions in Indonesia. According to the United Nations, 40 percent of Papuans live below the poverty line of $1.25 a day, compared to the national average of 18 percent.

Both the central and regional governments have hailed MIFEE as the answer not only to Indonesia’s growing concerns about food shortages but as a source of exports.

The project is expected to produce close to 2 million tonnes of rice, almost 1 million tonnes of corn, 2.5 million tonnes of sugar and close to 1 million tonnes of crude palm oil, according to local media reports.

However, activists point out that the staple food for Papuans is sago, a starch derived from sago palm, not rice. And they say there has been discontent in some areas where compensation from companies clearing and managing the land was deemed insufficient.

Despite a recent government pledge to resolve land tenure conflicts and protect the rights of people in forest-based communities, activists say most locals remain in the dark about the project.

“People from the village, when asked about MIFEE project replied, ‘MIFEE is a car that frequently crosses the road that reads MIFEE (on the body of the car)’,” Sawit Watch’s Nainggolan said.

LOSING A WAY OF LIVING

The massive scale of the project and nature of the indigenous people’s skills – many make a living hunting and gathering rather than farming – means a huge workforce is likely to be imported from outside Papua, activists say.

Sawit Watch estimate that some 5 million workers were needed to work the land, or four labourers per hectare. Yet, based on the 2009 census, the number of people native to Merauke was 195,577, Nainggolan said.

The low levels of education, knowledge and Indonesian language skills also mean indigenous Papuans are likely to be only involved in MIFEE as low-skilled labourers despite the loss of their land and livelihoods, he said.

Moiwend summed up the anger felt by activists.

“If the Indonesian government says that we are a part of them, that we are their brothers and sisters like they say, why do they do this project?,” she said. “They don’t want us to live in our own land. They want to kill us with this project.”

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