Tag Archives: international lawyers for west papua

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).

West Papua: the road to freedom?

Benny Wenda at the IPWP launch
Image via Wikipedia
Published on August 4, 2011 by Nick Harvey  in
New Internationalist
http://www.newint.org/features/web-exclusive/2011/08/04/west-papua-protests-independence/

West Papua: the road to freedom

Web exclusive

This week marks the 48th anniversary of the West Papuan struggle for independence from Indonesia. Thousands have taken to the streets and international lawyers are making a strong case for West Papuan self-rule.

Thousands have demonstrated on the streets of West Papua in recent weeks demanding independence. Free West Papua Campaign
Thousands have demonstrated on the streets of West Papua in recent weeks demanding independence. Free West Papua Campaign

It is a grief-stricken path that has been followed for generations. It stretches from when the Dutch colonized the region in the 19th century and cruelly continued when control was handed to Indonesia by a United Nations Temporary Executive Authority in 1963. And this week the journey towards independence has led thousands of West Papuans onto the streets to demand the international community acknowledge their right to be free.

‘West Papuans will never recognize their homeland as being part of Indonesia and we have a fundamental right to self-determination under international law,’ says Benny Wenda, a West Papua independence leader living in exile in Britain. ‘West Papuans have marched peacefully this week and have shown again that they can meet violence with peace to achieve this [aim], no matter how much [Indonesia] tries to intimidate us.’

‘A blind eye has been most cynically turned by the international community towards the situation of the people in West Papua’

Protesters and human rights campaigners are regularly harassed and arrested in West Papua and, according to Amnesty International, reports of torture whilst in detention and other human rights violations are commonplace. But with momentum building for the cause, the police have been reluctant to intervene in the recent protests.

‘The demonstrations were so big this time they know if they act violently towards the protesters it would be noticed internationally,’ says Wenda. ‘We have been trying for 48 years now and, just like the Middle East, we need people power to change the world – but we also need people from around the world to notice.’

One of the biggest obstacles that the Free West Papua campaign faces is a lack of interest, let alone support, from the outside world.

Forgotten conflict

‘West Papua is a forgotten conflict,’ says Charles Foster, spokesperson for International Lawyers for West Papua. ‘A blind eye has been most cynically turned by the international community towards the situation of the people there.’

As part of efforts to raise the profile of the region, a conference was held in Oxford this week by the Free West Papua campaign. International lawyers and activists spoke at the event to highlight the case for an independent West Papua under international law.

Nick
Harvey
Benny Wenda and fellow West Papuans sing their national anthem at a conference in Oxford. Nick Harvey

‘In legal terms, the region has a clear right to self-determination,’ says Foster. ‘If you look at the New York Agreement [a treaty signed in 1962 by the Netherlands and Indonesia regarding the political status of West Papua, then known as West New Guinea] the United Nations was given trustee status over the region which was supposed to lead to self-determination in 1969. Indonesia has never disputed the fact it put its name to this agreement; therefore it implicitly acknowledges that it was bound by it.’

But the New York Agreement was followed in 1969 by the ironically titled Act of Free Choice, a vote by a tiny section of the population of West Papua, hand-picked by the Indonesian military, on whether the region should become independent or remain part of Indonesia. Although it has since been widely recognized that the process was a sham, calls for a revote have consistently been ignored.

‘There is no serious legal scholar anywhere in the world who thinks the Act of Free Choice was a genuine expression of the free will of the West Papuan people,’ says Foster. ‘When Indonesians talk about this they try to steer clear of what actually happened on the ground in 1969. They’re not stupid, they realize how embarrassing it is.’

As long as the international inertia continues, the situation for West Papuans continues to worsen

Yet even if the New York Agreement is somehow forgotten and the circumstances surrounding the Act of Free Choice somehow ignored, international law still falls heavily on the side of the West Papuans. In 1960 the UN General assembly passed a crucial agreement, the Declaration of Granting Independence to Colonial Countries and Peoples, which states: ‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

This firm legal ground has yet to translate into any meaningful concessions to the West Papuan people. And as long as the international inertia continues, the situation for West Papuans continues to worsen.

Clemens Runawery is an exiled independence activist who has been unable to return to his country for more than 40 years.

‘The longer we stay part of Indonesia the more our status will suffer, both physically and demographically,’ he says. ‘Back in 1961 the vast majority of the people in West Papua were West Papuan, with only a minority from other places. Today this situation has been completely reversed. How much time do we really have left?’

Differing responses to ILWP meeting on 2 August

Bintang Papua, 27 July, 2011

Abridged in translation by TAPOL

Jayapura:  The news that the International Lawyers for West Papua is to hold a meeting in the UK on 2 August has led to a variety of responses.On the one hand, there are those who think this  will be of no positive benefit for Papua.

The Central Presidium of the  National Struggle of the Papuan People  regards this as nothing more than ‘romanticism of history’. This was the view of  the organisation’s chairman, Arkilaus Baho, speaking at a press conference. He was of the opinion that it would be more useful  to have talks between the Indonesian government  and the TPN/OPM like the talks that were held some time ago held with GAM about Aceh. He expressed the view that both the TPN (the armed wing of the OPM) and the Indonesian government would be prepared to hold talks. ”These talks could be held before the end of 2011,’ he said.

But Usama Usman Jogobi , speaking at another press conference together with his colleagues, said that he enthusiastically supports the holding of this conference.Usama is the co-ordinator of SDHRP, Democratic Solidarity and Human Rights of the Papuan people. He hoped very much that all sections of the Papuan people would support this meeting. ‘We support it whole-heartedly,’ he said.’We very much hope that the decisions taken at the conference will contribute towards resolving the continuing conflicts in Papua,’

Mako Tabuni, chairman  of the National Committee of West Papua (KNPB) also expressed support for the event. He went further, saying that his organisation was planning to organise  a peaceful demonstration outside the DPRP head office on 2 August. ‘I have received an acknowledgement (to my request) from the police about this event. ‘I am quite  quite certain that this peaceful demonstration will take place,’ he said.

‘West Papua – The Road to Freedom’ conference, Oxford, UK, Aug 2

from International Lawyers for West Papua

Next Tuesday 2nd August, international lawyers, politicians, tribal leaders, a UN committee member & a witness to the 1969 Act of Free Choice will gather for the Road To Freedom conference in Oxford, UK.

Chaired by British MP Andrew Smith, the conference will present the strongest case to date that the people of West Papua have the right to self-determination under international law.

People across West Papua will be following the conference and will use its outcomes to further their campaign for freedom.

List of speakers include:

  • Andrew Smith – British politician
  • Jennifer Robinson – International human rights lawyer
  • Powes Parkop – Governor of Port Moresby and the National Capital District, PNG
  • Benny Wenda – West Papua independence leader, UK
  • Frances Raday – Expert Member of the UN Committee for the Elimination of Discrimination Against Women
  • John Saltford –  Expert on the 1969 Act of Free Choice
  • Clement Ronawery – Witness to the 1969 Act of Free Choice
  • Ralph Regenvanu – Vanuatu Justice Minister
  • Charles Foster – co-founder of the International Lawyers for West Papua

As a sign of support for the conference and in solidarity with the Papuan peoples struggle for freedom, the Mayor of Oxford has agreed to fly the Morning Star flag above Oxford Town Hall on the day of the conference.

The conference is taking place at Oxford University’s East School of the Examination Schools, 75-81 High Street, Oxford, OX1 4BG. It will commence at 2pm

Those wishing to attend are required to register by emailing conference@ilwp.org

The hope for Papua’s freedom: ‘Go International’

image

Apologies for delay in posting

Tuesday, 03 May 2011 19:58

Editor : Markus

Tabloid JUBI — The struggle of the native people of Papua for freedom from all the evils they have suffered since their annexation into the Unitary Republic of Indonesia on 3rd May 1963, still echo to this day, not only on the local and national scene, but already internationally.

“At this time, our hopes for freedom for the People of West Papua depend on the support of the world. Privately and through our own organisations we are struggling, but now we have the help and sympathy of all the countries of the world,” said the Head of the National Committee of West Papua, Mako Tabuni, on Tuesday 3rd May 2011.

Support from the international world is growing and becoming stronger,for example from Israel.  This is a long campaign, and this is the way to do it – by gaining friends. “The problems of West Papua are also world problems, and Indonesia has to open itself up to recognise the truths of its history, of what happened some decades ago,” said Mako.

The formation of  two  bodies called International Lawyers for West Papua (ILWP) and International Parliamentarians for West Papua (IPWP), said Mako, came about as a result of the world’s notice and support for West Papua. ‘We are being well supported by the ILWP and the IPWP, which are fighting for the fate of West Papua.”

He said this as on the day after Monday 2nd May, when thousands of people had marched peacefully to assemble at the Post Office in Abepura, Jayapura.

The KNPB (National Committee) had emphasised several important points which are tied to our history, status and the sad fate of the people of Papua.

Firstly, the people of West Papua have not, did not nor ever will give their consent to join the Unitary Republic of Indonesia (NKRI) to become a part of their republic, West Papua.

Secondly, the process of making West Papua part of the NKRI, beginning in 1963 and finishing in 1969, organised jointly by Indonesia, United States of America, the Netherlands and the United Nations, was engineered as a false process, not following the Principles of international justice. The owners of the area of West  Papua were never involved in the process, and the international talks and arrangements took no account of their wishes.

Thirdly, the agreement called “The New York Agreement” was not supervised by the whole of the United Nations, resulting in the “referendum” of 1969, where the people of West Papua were not given their political right to vote on the basis of “one person, one vote”; this “vote” consisted of only 1025 people chosen by Indonesia to “represent” West Papua. This is a violation against the political rights of the people of West Papua.

Fourthly, NKRI has killed and destroyed many of the native citizens of West Papua since they began their DOM (Local Military Operation) to take up possession of the land of West Papua in 1963.

Fifthly, NKRI has pursued, intimidated, terrorised and killed many of the citizens of WP since this operation began.

Sixthly, Special Autonomy was offered as a solution to these problems. This policy was never really implemented as promised and published as policy by Indonesia.

Seventh, the only thing which is supporting Special Autonomy, which is the one thing the NKRI is offering, is part of their colonisation of Papua which nullifies the political rights of the native people of Papua, because the foremost problem for them is their right to determine their own future for themselves, which has been suppressed and undermined by the unilateral annexation of Papua through the so-called Act of Free Choice of 1969.

“We do not recognise the right of the Government of Indonesia, and all the institutions of that country, to stand in the nation of West Papua,” said Mako Tabuni, reading from a petition which had been signed by the whole assembly which had attended the march.

What we, the KNPB, are demanding is, firstly: that Indonesia stop all political manoeuvres using the Special Autonomy, formation of the MRP and the UP$B program in the land of West Papua.

Secondly, Indonesia and West Papua be the subject of an international legal process so that the political status of West Papua can be brought to the table at the International Cpurt, to determine a just policy about the validity of Indonesia’s annexation of the land of West Papua, and a justice for the people of West Papua.

Thirdly, in order to determine the will of the people of West Papua, a Referendum be held in a democratic way by the United Nations, to find a final solution to the political conflict in West Papua.

To find a framework to support this process to end the problems in West Papua via an international legal and political process, the KNPB puts forward the name of  Ms. Melinda Janki as Head of the ILWP, Mr. Charles Foster and all the members of the ILWP.

Also,  Mr. Andrew Smith as Head of the IPWP, Mr. Caroline Lucas together with all members of the IPWP to support the political process to bring the matter before an  internasional forum, together with the support of a free Papua. Also, the Government of the Republic of Vanuatu, as a member of the United Nations, also gives a similar mandate  to determine the legal status of West Papua through an international legal process at the International Court of Justice.

At the same time, the Spokesperson of the International KNPB, Victor Yeimo, can be a representative and coordinator to express the hopes and expectations of the people of West Papua. For this to happen, we need to form a representative body: a National Council of West Papua.

“It is not just anyone, it is the people of Papua alone who can bring about freedom. So, let us, the people of this land, come together and work and struggle,” said Yeimo.

About twenty Papuan representatives who addressed the assembly signed a petition before the demonstration ended at about 6 pm.

 (Markus)