The lawyers fighting for West Papua’s independence

https://lsj.com.au/articles/the-lawyers-fighting-for-west-papuas-independence/

 The lawyers fighting for West Papua’s independence

BY CAT WOODS - OCT 15, 2024 3:00 PM AEDT

This year marks nearly 30 years of East Timorese independence, but for West Papua, despite legal, social and international campaigning and pleas to the UN, independence remains an illusive goal owing to ongoing Indonesian occupation despite the 1969 Act of Free Choice. 

The Act of Free Choice 1969, contested by leaders of the West Papuan independence movement, handed control of West Papua to Indonesia in violation of international law, amounting to “alien domination” of a territory. There remains present violence, threats and military occupation of this territory.

On 23 September 23 this year, the International Lawyers for West Papua (ILWP) held a presentation in Port Moresby to outline the present situation. Australian lawyer and engineer, Tim Hansen pointed out that Indonesia’s illegal occupation of West Papua denied Papuans their human rights, and that the “rampant deforestation and mining” was exploitative; devastating “one of the most biodiverse forests on Earth.”

There are presently 25,000 Indonesian troops in West Papua and 40,000 internally displaced persons. The United Nations High Commissioner for Human Rights has not acted upon the 2019 West Papuan People’s Petition, signed by 1.7 million Papuans, calling for a referendum.

The Charter of the United Nations adopted Resolution 1514(XV) at the end of 1960. That Resolution was entitled ‘The Declaration on the Granting of Independence to Colonial Countries and Peoples’, and it labelled the ‘subjection of peoples to alien subjection and exploitation’ as ‘contrary to the Charter of the United Nations and is an impediment to promotion of world peace and co-operation’.  It concluded:

“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.”

Further, the Resolution urged the transfer of “all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour in order to enable them to enjoy complete independence and freedom” without delay.

Australian and international lawyers, scholars and activists have been ardent supporters of West Papuan independence for decades, and further action took place this year.

In August, the Pacific Islands Forum (PIF) issued a communique repeating and reaffirming its 2019 call for a UN High Commissioner for Human Rights visit to West Papua to investigate Indonesia’s alleged crimes in West Papua. In September, the House of Commons hosted the first West Papua All-Party Parliamentary Group (APPG) to a collective of Labour and Independent MPs, addressed by Benny Wenda.

Jennifer Robinson is an Australian human rights lawyer and barrister with Doughty Street Chambers in London. She co-founded ILWP in April 2009.

“I have been working with the movement for self-determination for West Papua since 2002, when I was living in West Papua and working for a small human rights organisation defending political prisoners and investigating crimes against humanity committed by the Indonesian military and police,” she tells LSJ.

“At that time, Benny Wenda, the leader of the movement was in prison on false charges, and I worked on his defence. He escaped the prison and the country and I helped him and his family obtain asylum and citizenship in the UK where they now live.”

Wenda co-founded the United Liberation Movement for West Papua and has been nominated for the Nobel Peace Prize.

Robinson continues, “I also co-founded International Lawyers for West Papua, which is supported by prominent lawyers around the world, including Justice Elizabeth Evatt AC.  I worked with the Government of Vanuatu, as counsel, on the Chagos Islands case before the International Court of Justice (ICJ) to raise the legal issues relevant to West Papua’s situation – and the ICJ gave a judgment which sets down the principles we argued for – and which make clear that Indonesia is unlawfully occupying West Papua. This and our ongoing advocacy about the grave human rights violations suffered by West Papuans makes clear that this is a just cause, and one supported by international law.”

Indonesian Independence from the Dutch East Indies

The Republic of Indonesia declared independence on 17 August, 1945. It had previously been the colony of the Dutch East Indies. In 1949, the United Nations Commission on Indonesia was established and on 27 November, 1949, the Netherlands and Indonesia signed the Hague Agreement, by which the Netherlands transferred sovereignty over the Dutch East Indies to Indonesia.

West Papua, also colonised by the Dutch East Indies, was contested: would it be transitioned into Indonesian occupation, or remain under Dutch colonial rule?  The Dutch argument for West Papua remaining under colonial rule, eventually to seek independence, was that the Melanesian population of West Papua was racially, culturally and religiously different from the Malay Indonesians with little change of cohesive, peaceful stability under Indonesian rule. The Indonesian argument was that regardless of differences between the Indonesian and Papuan peoples, they had one vital factor in common: both populations had suffered under Dutch colonial rule.

In 1950, the Dutch insisted the future of West Papua be determined by the United Nations Commission on Indonesia or by the International Court of Justice, which Indonesia refused to endorse. Rather, over the following seven years, Indonesia submitted four draft Resolutions to the General Assembly, none of which were adopted.

By the end of 1957, it had become an increasingly symbolic show of power for Indonesia to claim West Papua from its former colonisers. Indonesia expelled the 50,000 Dutch nationals living in Indonesia in December 1957, and sent its military into West Papua to occupy the land by force. The Dutch had been preparing Papuans for a future independence through educating Papuans as bureaucrats, teachers, tradespeople, paramedics and police, primarily employed within the colonial administration. It was these highly educated, independence-minded Papuans who supported the Dutch Resolution to the General Assembly in 1961 that proposed West Papua be administered by the United Nations Commission until the population could vote on its future political status. The Resolution failed to achieve adoption via the necessary two-thirds majority of votes in the General Assembly, and months later, in December 1961, Indonesian President Sukarno organised a military task force to take West Papua by force.

Because Indonesia and the Netherlands could not come to a resolution, the United States proposed  administration of the territory for a minimum of seven months would be granted to the United Nations in the first instance, and then administration would pass to the Indonesians, with an act of self-determination for the Papuans taking place within a few years. No consultation with West Papuans took place at any point in these deliberations. That US proposal led to the New York Agreement, signed by the Netherlands and Indonesia on 15 August 1962. Thus, West Papua was under the administration of a United Nations Temporary Executive Authority (UNTEA) with an understanding that self-determination would result by the end of 1969.

Article XXII(1) of the New York Agreement outlined UNTEA and Indonesia would “guarantee fully the rights, including the rights of free speech, freedom of movement and of assembly, of the inhabitants of the area.” These rights would “include the existing rights of the inhabitants of the territory at the time of the transfer of administration to the UNTEA.” The detailed guidelines regarding the process towards self-determination within the Agreement were clear, however the administration of the Act of Free Choice was ultimately controlled by Indonesia.

Preceding the Act of Free Choice, the newly installed Indonesian administration banned all Papuan political parties in existence, including any unauthorised political activity. Mass violence perpetrated by the Indonesian military resulted in armed rebellions, and by 1965 the Papuan resistance movement, the OPM (Organisasi Papua Merdaka, or ‘Free Papua Movement’) was formed to resist Indonesian occupation.

The Indonesian military responded with counter-insurgency operations, in which many thousands of West Papuans were killed.

University of Wollongong-based West Papua Project

In 2000, The West Papua Project was established by Professor Peter King, Dr John Ondawame and Dr Jim Elmslie at the Centre for Peace and Conflict Studies at the University of Sydney along with assistance from the Director of CPACS, Professor Stuart Rees. Since 2021, the project has been hosted by the University of Wollongong under the leadership of Dr Cammi Webb-Gannon, Ronny Kareni, and Dr Jim Elmslie.

The project has issued reports, academic articles and books over the past 24 years, along with organising workshops and conferences. The project brings together leading Papuan, Indonesian and international scholars and activists.

Dr Cammi Webb-Gannon is the Coordinator of the West Papua Project. She tells LSJ, “the Act of Free Choice is known by West Papuans as the Act of No Choice because it was supposed to be a plebiscite in which West Papuans were to choose whether they wanted continued annexation with Indonesia or political independence. Indonesia had never intended for it to go any other way than West Papuans becoming fully integrated with Indonesia under international law. So, Indonesia claimed that Papuans were too primitive to be able to understand the responsibility, or to make an informed decision, in a vote.

“Instead of using the internationally accepted practice of ‘one person, one vote’, Indonesia hand-picked about 1025 West Papuans, which was less than 0.01 per cent of the population, to vote for independence, and they threatened them with violence. So of course, if they didn’t vote for Indonesian rule – and they were under scrutiny – they were being threatened that they would have their tongues cut out if they didn’t vote the way Indonesia wanted them to.”

Dr Webb-Gannon adds, “The UN General Assembly ‘took note’ of the vote, the meaning of which is up for debate since there was no consensus. So, whether it was ever legal is still up for debate.”

A decade ago, in December 2014, West Papuan leaders, representing factions of the independence movement, gathered in Vanuatu to form a new body called the United Liberation Movement for West Papua (ULMWP).

The ULMWP represents the Federal Republic of West Papua (NRFPB), National Coalition for Liberation (WPNCL) and West Papua National Parliament (PNWP).

In December 2020, the ULMWP announced the formation of the Provisional Government of West Papua, which functions according to a presidential system. A full cabinet commanding 12 departments on the ground in West Papua was announced on May 1, 2021. Benny Wenda was appointed Interim President, with Edison Waromi as Interim Prime Minister.

Robinson reiterates, “Indonesia is violating customary international law because of its failure to provide the West Papuan people the genuine and free, lawful act of self-determination which was required of the 1962 New York Agreement – and customary international law. Rounding up a group of 1200 West Papuans leaders and forcing them to vote for annexation with Indonesia under threat of violence, which is what happened in 1969, is not a lawful act of self-determination.

“The ongoing occupation is unlawful, as is Indonesia’s exploitation of West Papua’s natural resources. It must come to an end. The West Papuan people are ready to govern themselves and they have the right under international law to do so.”

——-