Charles Foster – It was predictable and depressing. Every year on December 1, West Papuan tribesmen, wearing penis gourds and cowrie necklaces, try to raise the Morning Star flag that signifies their independence from Indonesia. And every year the Indonesian police and army, commanded by men who won their spurs in East Timor, beat them and shoot them.
West Papua, formerly Irian Jaya, is a forgotten jungle province, a long way in every sense from the rest of the world. It is the easternmost province in the Indonesian archipelago. After the Second World War the Dutch East Indies were in turmoil. The Dutch reluctantly relinquished Irian Jaya, and then came one of the great scandals of international law.
Indonesia agreed that there would be a referendum of all of West Papuan people. The Western world smiled: this was language it liked. But Indonesia changed the rules. Under the eyes of the UN, it selected just over a thousand representatives of the population, and by various forms of coercion forced them to vote for integration with Indonesia. This resulted in the ironically named Act of Free Choice of 1969. The UN, happy to wash its hands of a troublesome problem, and unwilling to take on a powerful and aggressive Indonesian government, endorsed the Act.
The Act of Free Choice is a bad joke. No objective commentator has said with a straight face that it represents the will of the people. West Papuans are Christian or shamanic Melanesians. They have nothing in common with the Indonesians. For the Indonesians, West Papua is literally a goldmine. The vast Freeport mine pays a lot of Indonesian bills. The colossal American interests in Freeport no doubt mute the voice of international outrage.
West Papua highlights the impotence of international lawyers. Last year I sat in the Temple sifting through documents about the imprisonment, on transparently trumped up charges, of Benny Wenda, a West Papuan leader. He had been beaten, tortured and threatened with death. I was asked to advise. The answer was that the law could do nothing. Indonesia has signed up to none of the relevant international treaties, and even if it had there was unlikely to be any chance of redress. Diplomacy was pointless too: even if the Foreign and Commonwealth Office could be persuaded to make itself unpopular, Indonesia's contempt for diplomatic overtures was notorious. I could write a letter to a tired official in Jakarta, who would file it in the bin.
On a wider front the impotence was just as complete. If international law means anything, it should mean that the Act of Free Choice is void and the occupation of West Papua unlawful. But one quickly learns cynicism. The real law of nations is the law of realpolitik. If you are big, rich and well armed, you write the law books. Ask Iraq. Ask the men in Guantanamo Bay. Ask the shareholders in the Freeport mine, who could redraft Indonesia's policy towards West Papua if they chose to. If you are big and say that a pre-emptive strike to effect a regime change is the law, that's fine. If you are not, you get pre-emptively struck to teach you a law lesson.
The big obstacle to change in the international human rights arena is the notion of national sovereignty. We are wedded to it. It is a nice idea for nice nations to cherish, but it is usually deployed as a keep-out-of-jail card (and a keep-dissenters-in-jail card) by nastier places. There is little point in having voluntary rules that are subscribed to only by the people who do not need to subscribe to them. Universal justiciability, independent of signatures on treaties, has to come. There are two options.
You can have legally unregulated colonial wars waged by big nations on the pretext of maintaining the very norms of international law that those wars breach; or you can ignore the violations and, according to your taste, either wring your hands in helpless anguish or get on with pretending that the world is a cosy place.
The real challenge for people involved in international human rights and the related questions of public international law is to keep hopeful. It is not easy. Benny Wenda, despairing of legal process, bypassed the law.
He escaped, and after being hunted through the highlands of Papua New Guinea found his way to Heathrow. Similarly, if the international community just stands by, the oppressed will seek their own way. Those efforts could be bloody. Anyone who cares about peace, people or just the good name of the law should try to make real the dreamers' hopes of international justice.
[The author is a barrister at 6 Pump Court, Temple.]