West Papuans’ struggle for independence is a long history filled with historical grievances, sustained human rights abuses, economic injustice, ‘slow genocide,’ and institutional racism (MacLeod, 2011; MacLeod, Moiwend, & Pilbrow, 2016). During the colonization period, the Melanesian peoples of New Guinea island were colonized by three powers: the British and the Germans controlled the island’s eastern parts, while the Dutch established their presence in the western parts (Robinson, 2010). The Dutch colonized areas were named the Dutch New Guinea and formed part of the Dutch East Indies, the nucleus of modern-day Indonesia. When Indonesia was granted independence in 1945, the Dutch retained its control over West New Guinea, known now as West Papua. They argued that West Papuan people should have their independence separately from their Indonesian counterparts, mainly due to their distinct social backgrounds, i.e., ethnicity, culture, history, and religion (Robinson, 2010). In the 1950s, the West Papuan established their parliament, flag, national anthem, and coat of arms with permission and support from the Dutch, ready to become an independent state (MacLeod et al., 2016). The Dutch even added the Dutch New Guinea to the United Nations’ list of non-self-governing territories (Robinson, 2010; United Nations, n.d.). On 1 December 1961, the West Papuans declared independence from the Dutch through a flag-raising ceremony (Robinson, 2010; Kluge, 2017).
Unfortunately, the ceremony sparked outrage from the newly formalized Indonesian government. The Indonesian government claimed that all regions under the Dutch East Indies were parts of Indonesia, including the Dutch New Guinea. President Soekarno then threatened to invade West Papua with the support of the Soviet Union, and in December 1961, he authorized Operation Trikora (Robinson, 2010; Indonesian National Armed Forces, n.d.). The use of force by the Soviet-backed Indonesian armed forces caught the US’s attention due to its communism-spreading potential and war-like activities (Robinson, 2010). The US then offered its mediation capacity to the conflicting parties. In August 1962, both Indonesian and Dutch governments signed the US- and UN-brokered New York Agreement, which gave control of West Papua to Indonesia after a brief transitional period overseen by the United Nations and ended Operation Trikora (Robinson, 2010; ICTJ, 2011).
The provisions under the 1962 New York Agreement included an UN-supervised referendum to be held in 1969. Between 1963 to 1969, the Indonesian military carried out a series of violent campaigns to ensure that West Papuans vote in favor of non-independence (Robinson, 2010; Kluge, 2017). The political conditioning and violent intimidations succeeded. The West Papuans unanimously voted for West Papua integration into Indonesia. However, out of approximately 800,000 population at that time, only 1,022 West Papuans, handpicked by the Indonesian authorities and threatened at gunpoint to do so, were allowed to participate and cast their vote (Robinson, 2010; MacLeod et al., 2016; Kluge, 2017).
The instances mentioned above show a glimpse of how the West Papuans tried to exercise their right to self-determination, although the efforts were never materialized into a successful formation of an independent state. The 1961 flag-raising ceremony was probably as close as it gets for West Papua to become a sovereign. The 1969 Referendum, although it took place under the United Nations’ supervision and during the global decolonization period, nevertheless failed to fulfill West Papuan peoples’ aspirations for independence. These shreds of evidence beg several questions: is the West Papuans’ post-Referendum self-determination aspiration a long shot? Is there a shot at all?
Understanding the Right to Self-Determination vis-à-vis Human Rights Violations
Although the Universal Declaration of Human Rights (UDHR) does not contain any provisions on the right to self-determination, it is explicitly expressed in Article 1 common to the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR). Common Article 1 (1) states, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development (ICCPR, 1966; ICESCR, 1966).” The provision implies that there are two ways in which the right to self-determination can be manifested: through the establishment of a new, independent state or the emergence of another political status internal to a state (Arzoz & Suksi, 2018). Although the Office of the High Commissioner for Human Rights’ (OHCHR) General Comment №12 does not further define the external and internal divide on the right to self-determination, the Committee on the Elimination of Racial Discrimination’s (CERD) General Recommendation 21 acknowledges such a distinction (OHCHR, 1984; CERD, 1996). General Recommendation 21 suggests that the external dimension of self-determination is the right of peoples “to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination, and exploitation (CERD, 1996).” The internal dimension, on the other hand, is recognized as “the right of every citizen to take part in the conduct of public affairs at any level (CERD, 1996).”
It is imperative to note that the spirit that crystallized the right to self-determination, as implied in General Recommendation 21, was decolonization. Henceforth, the United Nations and its Member States customarily agree that this right can be used once and once only to free colonized countries after World War II (Smith, 2014). As a consequence, the external component of the right to self-determination, e.g., the right to self-rule and freely determine the political means by which the people ought to achieve independence, was meant to be understood as the right to be free from the shackle of colonialism (Lawrence, 2012; Smith, 2014).
Nowadays, claims for the right to self-determination are not exclusively expressed by anti-colonial groups with anti-colonial demands. Sub-state groups, trans-state groups, and indigenous peoples are increasingly trying to exercise their right to self-determination (Lawrence, 2012). Their aspirations include not only the establishment of a new sovereign but also, inter alia, to determine the form of government and the ways to participate in the political process or to gain access to economic and cultural autonomy (Smith, 2014). The increasing complexity of demands have made the internal component of self-determination more widely acceptable and less controversial in today’s context (Lawrence, 2012; Smith, 2014). Therefore, contemporary self-determination claims are regarded as aspirations for democratic rule or the right to a government responsive to its people’s will (Lawrence, 2012).
Such a belief is problematic in manifold ways. First, states’ reluctance to acknowledge the external dimension of the right to self-determination is usually based upon vaguely defined principles of national unity and territorial integrity. For instance, CERD’s General Recommendation 21 suggests that none of the statements under the Recommendation may be seen as an effort to “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states (CERD, 1996).” This statement refers to the provisions under the United Nations General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which lays the exact similar features (General Assembly, 1970). Therefore, it is clear that the interpretation of national unity and territorial integrity lies within the sole power of states and leaves no room for the views from groups exercising the right to self-determination. For instance, domestic courts in both the Tatarstan case and the Quebec case examined international law documents to decide whether secessionist movements in each case can claim the right to self-determination (Arzoz & Suksi, 2018). Unsurprisingly, both courts arrived at a similar conclusion, saying that the right to self-determination cannot be invoked to disrupt Russia and Canada’s unity without further clarifying what constitutes national unity or territorial integrity (Arzoz & Suksi, 2018).
Secondly, given the wide margin of appreciation available for states to freely define and execute policies that do not endanger national unity or territorial integrity when it comes to self-determination claims, there is no guarantee that even the most severe cases of human rights abuses may render the victims and survivors from exercising their right to external self-determination. Not only that states have leeway in defining national unity and territorial integrity, but they also have the power to deny any allegations of human rights atrocities happening domestically. Henceforth, the claims of the right to self-determination may be concluded inadmissible by courts and tribunals. Such a leeway has the potential to be used to contradict the customary principle of obligations erga omnes regarding states’ duties to respect, protect, and fulfill human rights, particularly the right to self-determination. Moreover, it clouds the International Law Commission’s (ILC) arguments that the protection and violation of jus cogens norms, e.g., the fundamental norms of international law in which no derogation is permissible, are also a matter of obligations erga omnes (Treves, 2006; Abass, 2014). Such is the case in the Katangese Peoples’ Congress v. Zaire 1995, where the African Commission of Human and Peoples’ Rights deemed the claims of self-determination of the Katangese peoples inadmissible due to “no such violation of human rights had taken place in relation to Katanga that it would justify, under the right to self-determination, disturbing the territorial integrity and sovereignty of Zaire (Arzoz & Suksi, 2018).” The African Commission again ascribed to the same principle in Kevin Mgwanga Gunme v. Cameroon 2009 (Arzoz & Suksi, 2018). These decisions were important in twofold ways. First, they acknowledge the importance of human rights abuses in claims of self-determination. Secondly, however, due to the lack of agreed upon constitutive elements of human rights violations, they annulled obligations erga omnes regarding self-determination claims (Treves, 2006; Saul, 2011; Arzoz & Suksi, 2018).
West Papua Post-Referendum: Human Rights Abuses, Compromised Internal Self-Determination, and the Call for Independence
The 1969 Referendum result had twofold long-term impacts. Firstly, it fostered pro-independence movements, namely the Free Papua Movement (OPM). Founded in 1964, the OPM unites West Papuans’ ambitions to establish an independent state through resisting economic, social, and cultural injustices perpetrated against West Papuan peoples (Rumakiek, 1996; Chauvel & Bhakti, 2004). The means and methods vary from non-violent diplomacy that rallies support from pro-independence groups and individuals at home and abroad to armed resistance against mainly Indonesian armed forces (Rumakiek, 1996). From the 1970s onwards, OPM’s liberation agendas include training militiamen and regional commanders, carrying out sporadic armed operations, and establishing alternative education, health, and economic activities to challenge the Indonesian government policies (Rumakiek, 1996; Chauvel & Bhakti, 2004; al Rahab, 2006). Despite its limited military, financial, and organizational capacity, the OPM’s struggle for West Papua independence continues today (McGibbon, 2006; al Rahab, 2006).
Secondly, the 1969 Referendum gave birth to a string of human rights abuses in West Papua. Indonesia was under the authoritarian military regime of President Soeharto from 1965. The so-called New Order regime promoted the doctrine of the military’s dual-function (Dwifungsi ABRI), allowing the Indonesian military to control public matters and defend their position via any means necessary, including terrors, intimidations, violence, and surveillance (Azhar, 2005). Consequently, the Indonesian military embarked on a series of trigger-happy violent campaigns throughout Indonesia, including West Papua. In the 1970s, the Indonesian military declared West Papua a military operation zone and embarked on excessive use of force to silence any secessionist aspirations within the region (ICTJ, 2011). In the mid-1980s, the brutal Indonesian military operations resulted in approximately 10,000 West Papuans being displaced and needed to migrate to their neighboring country, Papua New Guinea (al Rahab, 2006). Only around three-quarters succeeded in entering Papua New Guinea, while the rest lingered within the jungle near the borderline (al Rahab, 2006).
In the late 1990s, the continued New Order repression sparked Indonesia’s democratization movement, widely known as the Reform Movement. After a series of mass demonstrations, President Soeharto stepped down in May 1998. Nevertheless, atrocities in West Papua never really end by all means. In 2000, the Indonesian armed forces conducted sweeping operations in Abepura, West Papua, resulting in 105 people arrested, arbitrarily detained, and subjected to racial abuse, and many were tortured (ICTJ, 2011). In 2001, two human rights violations were committed by the Indonesian armed forces. First was the unlawful killings, torture, and arbitrary detention of approximately 140 people in Wasior district and, secondly, the assassination of an alleged OPM leader Theys Eluay (ICTJ, 2011). In 2003, other sweeping operations were conducted in Wasior, resulting in thousands of people forcibly displaced mainly due to the burning of villages by the armed forces (ICTJ, 2011). In the more recent years, Indonesian authorities recourse not only to armed forces but also other repressive measures to silence West Papuan pro-independence movements. Blanket prohibitions on peaceful protests, mass arrest, prosecution under the rebellion articles in the Criminal Code, internet shutdown in West Papua, and the deployment of internet trolls to silence self-determination aspirations in social media are being used (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).
Post-Reform Indonesian government initially took positive steps to address past and ongoing human rights violations that can also be seen as efforts to respect, protect, and fulfill West Papuans’ internal self-determination claims. In 1998, the Parliament’s Upper House (MPR) adopted Resolution XVII, which symbolizes the Indonesian government’s commitment to ratify key international human rights treaties and strengthen the National Human Rights Commission (Komnas HAM) (ICTJ, 2011). Shortly after, Indonesia ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and ICERD, as well as passed the Law 39/1999 on Human Rights (ICTJ, 2011; Amnesty International Indonesia, 2019). In 1999, the MPR passed Resolution TAP MPR IV of 1999 that acknowledges human rights violations during the New Order era and calls for a “just solution” to the conflicts in several Indonesian regions, including West Papua (ICTJ, 2011). In 2001, the Indonesian government passed a Special Autonomy Law for West Papua that regulates, among other things, the protection of indigenous peoples’ rights, the establishment of an indigenous peoples’ council, a truth-seeking commission, and a human rights court for the Abepura case (ICTJ, 2011).
Nevertheless, the history of human rights abuses and the continued violence in West Papua shows that the internal dimension of self-determination is highly compromised. Shreds of evidence have shown that despite the early post-Reform government’s initiatives, there has been little progress in realizing those commitments. Although Indonesia has ratified the ICERD and CAT, state-sponsored racial discrimination and torture practices are still happening in West Papua. Regarding the implementation of the provisions under the Special Autonomy Law, although the Abepura Human Rights Court was established, the result was nothing short of a disappointment: only two people were accused, and both were acquitted at the trial (ICTJ, 2011). More recently, in September 2020, West Papuans declared rejection toward the Special Autonomy Law and demanded the establishment of an independent state instead (Permana & Nupus, 2020). An OPM representative stated that the Special Autonomy was not what the West Papuan people wanted, as they have always sought complete independence and separation from Indonesia (Permana & Nupus, 2020). However, as mentioned before, it is nearly impossible for the West Papuans to be granted independence because the spirit of the right to self-determination is highly colonial era-centric. In addition, the state will have the final say to decide the matter, and it is safe to assume that the Indonesian authorities will use the vague justification of national unity and territorial integrity to dismiss any claims of the right to external self-determination. In sum, not only that the idea and implementation of the internal self-determination claims inadequate, but also the claims for external self-determination must not be a taboo given the long-standing human rights violations in the West Papuan context.
The West Papuan struggle for independence is filled with human rights abuses and obstructed by the vague definition and compromised implementation of the right to self-determination. Their fight for separation from Indonesia is justified due to factors such as social and cultural backgrounds, historical grievances, and unjust and violent policies committed against them. However, their aspirations to establish an independent state is obstructed continuously by international law’s definition (or lack thereof) of the right to self-determination.
The spirit of the right to external self-determination, e.g., establishing a new state, under international law, is to abolish colonialism post-World War II. It is a right that can be exercised once and only once by colonized peoples. Once the decolonization process is done, the right to self-determination is nowadays agreed to be exclusively a matter of internal self-determination, e.g., establishing democratic rules. Hence, the claims for the right to external self-determination are becoming less and less favorable within the international community. Furthermore, international law is a law only from and for states. As such, a wide margin of appreciation is given to states to determine the policies best-suited for their national unity and territorial integrity regarding self-determination matters.
Consequently, although the reality shows that the West Papuans are subjected to state-promoted abuses, they cannot easily claim the right to external self-determination. The condition is made worse due to the fact that the post-Reform Indonesian government adopted several rules that can be deemed as efforts to respect, protect, and fulfill West Papuans’ internal self-determination claims. In the case of external self-determination is brought to an international court, for instance, the Indonesian government can argue that they have provided the West Papuans with necessary democratic institutions and, therefore, the claims must be deemed inadmissible.
It is indeed a bitter reality for the victims and survivors of abuses in West Papua. However, until a reform in international law is realized, the West Papuans’ claim for external self-determination is indeed a long shot.
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