Letting Atrocities Off the Hook: How R2P May Never Protect the Papuans

A little over a month ago, the Indonesian civil society elements were upset by the Indonesian government’s decision to vote against Resolution A/75/L.82 of 10 May 2021 regarding the inclusion of the Responsibility to Protect (R2P) question on the United Nations General Assembly annual agenda item (United Nations, 2021; Sekarwati, 2021). Fifteen countries voted ‘No’ on the subject matter, including those having questionable track records concerning the protection of human rights, such as China, North Korea, and Russia, which generated a negative precedent amongst civil society elements toward the Indonesian authorities (Alexandra, 2021).

On social media, human rights activists claimed that the Indonesian government’s decision was alarming in, at least, twofold ways. First, as implied before, the decision signals Indonesia’s proximity with States having a problematic stance on human rights issues. Such closeness raises some doubts over the Indonesian government’s commitment to matters relating to the protection and fulfillment of human rights abroad that have been heavily opposed by countries such as China, for instance, on the implementation of R2P towards the Myanmar crises (Smith & Williams, 2021). Secondly, the decision also explicates the lack of the Indonesian government’s commitment to addressing genocide, war crimes, ethnic cleansing, or crimes against humanity that happened or are still happening at home. Several activists pointed out that the Indonesian government’s decision indicates its admonition shall the R2P is implemented in Indonesia’s domestic matters, such as the continuing human rights abuses in Papua.

This article further scrutinizes the Indonesian government’s decision to vote against Resolution A/75/L.82 of 10 May 2021 and, additionally, problematizes the R2P and its failure to end slow genocide and crimes against humanity in Papua. On the one hand, the Indonesian government’s decision to vote ‘No,’ indeed, signals either the State’s inability or unwillingness to address past and ongoing human rights violations at home, specifically, in this matter, in Papua. On the other hand, the history and operationalization of R2P make it highly unlikely for the United Nations and its Member States to address the problems in Papua. As such, both the Indonesian government’s decision and the structure of the R2P mutually reinforces each other, resulting in impunity for past crimes and endure the ongoing atrocities.

A Brief History

The R2P is a global commitment that insists that all States have the duty to protect populations from crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity. The term was first used in a report by International Commission on Intervention and State Sovereignty (ICISS) titled ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty,’ released in December 2001, shortly after the 9/11 tragedy (GCR2P, 2001). The then United Nations Secretary-General, Kofi Annan, endorsed the idea of R2P on multiple occasions, one of which was written in his report in the 59th session of the General Assembly in March 2005 titled ‘In larger freedom: towards development, security and human rights for all (Labonte, 2013).’ In the report, Kofi Annan states, “It cannot be right, when the international community is faced with genocide or massive human rights abuses, for the United Nations to stand by and let them unfold to the end, with disastrous consequences for many thousands of innocent people,” and, as such, States must “move towards embracing and acting on the “responsibility to protect” potential or actual victims of massive atrocities (United Nations, 2005a).” In October 2005, at the United Nations World Summit, States unanimously adopted Resolution A/RES/60/1 on the 2005 World Summit Outcome, which enshrines the international commitment to R2P in paragraphs 138 and 139 (United Nations, 2005b).

In January 2009, the then United Nations Secretary-General, Ban Ki-Moon, released a report titled ‘Implementing the responsibility to protect,’ which articulates three main pillars of R2P. First, the report stipulates that States are responsible for protecting populations from four mass atrocity crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity (United Nations, 2009). The first pillar reaffirms Paragraph 138 of the 2005 World Summit Outcome, which laid out the four categories of crimes often referred to as atrocity crimes or R2P crimes. Secondly, the broader international community, including States, regional and subregional arrangements, civil society elements, and private actors, has the duty to encourage and assist individual states in fulfilling the responsibilities specifies under the first pillar (United Nations, 2009; GCR2P, 2009). Lastly, the report states that if a State fails to fulfill its responsibility to protect its population from the R2P crimes, the international community must be prepared “to respond collectively in a timely and decisive manner (United Nations, 2009).” The third pillar, this article argues, provides for the operationalization of R2P and is a point of contention amongst the general public on how the commitment is supposed to look like.

Operationalization

In understanding the third pillar, as such, reference needs to be made to Paragraph 139 of the 2005 World Summit Outcome. The opening of Paragraph 139 of the 2005 World Summit Outcome states the following:

“The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity (United Nations, 2005b).”

It continues by saying:

“In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity (United Nations, 2005b).”

Contrary to popular belief, Paragraph 139 suggests that R2P includes and must first recourse to peaceful settlement of disputes; the commitment is not and was never exclusively about the use of force. The reference to Chapter VI of the United Nations Charter means that peaceful settlement of disputes had to be tried first. Such mechanisms include “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,” and regional arrangements further specified under Chapter VIII (United Nations, 1945). Since the Charter is a legally binding instrument, States are, therefore, legally bound to the obligation to continuously seek a peaceful solution, and only in case of failure was the resort to the use of force possible (Pellet, 2013). However, even when peaceful solutions fail, the use of force cannot be invoked arbitrarily. The obligation to peacefully settle international disputes is a continuous duty that prohibits States from stopping to look for other peaceful alternatives if the ones they are experimenting with fail (Pellet, 2013). Furthermore, the duty applies in all circumstances, including when an armed conflict has started and is going on (Pellet, 2013).

However, such a duty to first settle international disputes through peaceful means does not mean that the use of force is entirely prohibited or unlawful. Indeed, the second limb of Paragraph 139 explores the possibility for the R2P to recourse to the use of force. Nevertheless, its operationalization is still confined under the provisions enshrined under the United Nations Charter and cannot be arbitrarily summoned. There are two scenarios in which the use of force may be deemed lawful under the Charter: on a case of self-defense, enshrined under Article 51 of Chapter VII, and actions to maintain or restores international peace and security by the United Nations Security Council, enshrined under Article 39 (United Nations, 1945). Under Article 42 of the Charter, the use of force may be performed “by air, sea, or land forces” through actions such as “demonstrations, blockade, and other operations (United Nations, 1945).” The non-exhaustive nature of Article 42, as such, suggests that the use of force, within or outside the context of R2P, cannot be understood exclusively as the use of armed forces since targeted economic sanctions, for instance, may also be considered as “force” that falls within the ambit of the article. It is unsurprising, therefore, that even if the R2P has been invoked in more than 90 Security Council resolutions and presidential statements, not all ended up in the use of military force to prevent or end R2P crimes (GCR2P, 2021).

Criticisms

In cases of the use of military force invoking the R2P principle, there are several unclarities. First, the United Nations Member States are unsure about which of the United Nations main organ should have a more prominent role in the implementation of R2P. Several Member States argue in favor of the General Assembly, while others favor the Security Council. States supporting the General Assembly argue that if the R2P is made exclusive under the auspices of the Security Council, the permanent members’ veto power might defeat the very purpose of R2P (Barkholdt & Winkelmann, 2019). Secondly, there is an unclarity regarding when, in what situation, and to what purpose can the use of force invoking the R2P principle be enacted. On the one hand, States are concerned that the R2P might be abused to serve the political interests of powerful States, for instance, for the purpose of pushing regime change in a particular State (Barkholdt & Winkelmann, 2019). Such was the case when the R2P was invoked to authorized the use of military force in Libya in 2011 (Barkholdt & Winkelmann, 2019). On the other hand, States are concerned that the implementation of R2P might be discriminatory regardless of situations of mass atrocities (Barkholdt & Winkelmann, 2019). Such is the case when the United Nations fails to address ongoing human rights abuses in Indonesia, especially within the Papua region, which will be further explained below.

International Community’s Inaction Vis-à-vis Slow Genocide in Papua

There is no single United Nations resolution that mentions R2P in the same breath as the atrocities that happened or are still happening in Indonesia, leave alone the abuses in Papua. Papua has witnessed various human rights abuses since the early days of Indonesia’s independence from the Dutch colonization in 1945. The very inclusion of the region as a part of Indonesia was in and of itself disputable (Robinson, 2010; MacLeod, 2011; MacLeod, Moiwend, & Pilbrow, 2016). On the one hand, the Indonesian founding fathers assumed that all areas under the Dutch East Indies were part of the newly independent archipelago. On the other hand, the Dutch refused to give up Papua, among other reasons, to other parts of Indonesia due to its distinct cultural and racial history (Robinson, 2010). It was only seventeen years after Indonesia’s independence that the Dutch government ceded Papua to Indonesian authorities with one prerequisite: a referendum to be a part of the arrangement to guarantee the West Papuan peoples’ right to self-determination (Robinson, 2010; ICTJ, 2011). The referendum took place in 1969, but with heavy intervention and intimidation by the then-authoritarian regime led by the Indonesian military. Only pro-Indonesian West Papuans were allowed to cast their vote, raising the suspicion of accusations of vote-rigging and other manipulation (Robinson, 2010; Kluge, 2017). Hence, the result was unsurprising: the handpicked West Papuans voted unanimously to integrate West Papua into Indonesia.

Since then, instances of atrocities keep happening in the region. In the 1970s, the Indonesian government declared West Papua a military operation zone due to the heightened suspicion of separatist movements developing within the province (Azhar, 2005; al Rahab, 2006). Consequently, the military embarked on a series of trigger-happy campaigns that lasted for decades; not even the democratization movement in 1998 succeeded in bringing peace and justice to West Papua (Azhar, 2005; al Rahab, 2006). In the early years of post-Reform Indonesia, at least three human rights abuses targeting the Papuan people occurred. First, excessive and sweeping targeting of the alleged separatist movement members resulted in killings, detentions, and torture in Abepura in 2000 (ICTJ, 2011). Second, a prominent Papuan human rights activist, Theys Eluay, was assassinated in November 2001 (ICTJ, 2011). Third, extrajudicial killings, torture, racial abuse, and village burning also occurred in two villages, Wasior and Wamena, in 2001 and 2003, respectively (ICTJ, 2011). The past ten years have been no different. According to Amnesty International Indonesia, from 2010 to 2018, at least 69 extrajudicial killings were perpetrated by the armed forces. Under President Joko Widodo, new forms of abuse are taking place, mainly using internet trolls to silence Papuan activists, denying instances of human rights abuses, and spreading misinformation as countermeasures (Amnesty International Indonesia, 2019; BBC, 2019).

Several experts claim that the sustained violent campaigns in West Papua from the 1969 Referendum until today amounted to at least 2,000 to 500,000 victims (al Rahab, 2006; MacLeod, 2011; MacLeod et al., 2016). Other experts even argue that the violent campaigns in Papua amount to genocide due to the fact that in the 1970s, 96 percent of West Papua populations were West Papuans; however, in 2010, only 48 percent of West Papuans populations were West Papuans (MacLeod et al., 2016). This article supports such claims because according to Article 6 of the Rome Statute, a genocide is “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group (International Criminal Court, 2011)” and the fact that Papuans predominantly belong to the Melanesian ethnic groups and unlike the rest of Indonesians who are of Malay ethnic, the continuous abuses toward the Papuans may amount to genocide and, as such, constitute the R2P crimes. Unfortunately, even though genocide is happening in Papua, the wider international community remains inactive and has yet to invoke the R2P principle to protect the Papuan populations.

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