The Story of My People: Hidden Genocide in West Papua. Free West Papua!

By Ruby Fa’agau, 3L

For half a century, it has been open season on the indigenous people of West Papua. Since 1969, the government of Indonesia has forcibly and illegally occupied West Papua, exploited the rich mineral resources of the land, and racially targeted the indigenous people with arbitrary arrests and fatal shootings, leading to the deaths of over five hundred thousand West Papuans.  This travesty remains unseen by the world because Indonesia refuses investigations by foreign journalists; this demonstrates that they are purposely hiding their abuse and erasure of West Papuans.  However, the evidence of the hidden genocide is mounting due to eyewitness accounts, photographs, and video recordings by West Papuan refugees who escape and tell their stories.  The United Nations must recognize the sovereignty of West Papua to stop the senseless massacre.

INDIGENOUS PEOPLE OF WEST PAPUA

Although there is no official definition for “indigenous people” according to the United Nations (UN), there is modern agreement that the term refers to: the self-identification by the first peoples to inhabit a given area as indigenous, holding unique language and culture, and holding common problems related to the protection of their rights [1]. The UN created “rights of indigenous people” [2] to recognize the need to respect and promote rights of indigenous people affirmed in treaties, agreements, and other arrangements with States (or countries).

The original people of West Papua [3] are by ethnicity, Melanesians; they self-identify as the indigenous people of the western portion of New Guinea. West Papuans are also recognized as the indigenous people by their neighbors from the eastern portion called, Papua New Guinea.  Although the occupying government refers to the region as Irian Jaya, the indigenous people call their land West Papua. They have lived in this region for many millennia, prior to colonialism, and prior to Indonesian occupation [4].

Because of its abundance in mineral wealth [5], which includes the world’s largest gold mine [6], the territory of West Papua changed hands among colonial powers while the original people remained subject.  From 1828, the Netherlands took possession of both Indonesia and West Papua until the Dutch recognized the independence of Indonesia in 1949 [7].  However, the status of West Papua remained unresolved.  In 1954, Indonesia brought the matter of Indonesian political control over West Papua before the United Nations [8]. The status and future of West Papua was debated at the General Assembly from 1954 to 1957 and again in 1961 [9]. While the Indonesian government claimed that West Papua belonged to them and should be directly transferred from Dutch colonial rule to Indonesia, the Netherlands argued that the indigenous people of West Papua were not Indonesians and as a result should remain sovereign [10].

In 1961, the indigenous West Papuans raised their independent flag, the Morning Star [11]. However, Indonesia claimed the Irian Jaya territory and invaded the land [12]. In 1969, West Papuan elders were rounded up and threatened by the Indonesians. “The Act of Free Choice” was passed a result of this intimidation [13]. This act, better known as the “Act of No Choice,” was fraudulently enacted after rounding up one thousand twenty-five West Papuan elders – less than one percent of the population at that time – under heavy Indonesian military surveillance and forcing them to vote in favor of Indonesian political control over West Papuan ancestral land [14].  The previously colonized Indonesians became the colonizers of West Papuans.  Because of Indonesia’s interest in exploiting the minerals in West Papua, they see the indigenous people as an obstacle to the coveted valuable resources.  Since Indonesia’s illegal occupation was legitimized by fraudulent “The Act of Free Choice,” there has been a range of human rights violations that includes unlawful killings, torture, rape, enforced disappearances, sexual slavery, arbitrary arrests and detention, and forced displacement leading to over five hundred thousand West Papuans who have been killed by the Indonesian security forces [15].

GENOCIDE: INTERNATIONAL LEGAL STANDARDS

Genocide

According to Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (1984), the legal definition of genocide is, “any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.” [16]

Genocide is broken into 3 elements: the group element, the act element as listed in the definition, and the specific intent to destroy the group [17]. Additional factors are relevant to the analysis of a possible genocide because if an element is weakly met then the additional factors weigh in favor of strengthening that element to prove the crime of genocide.  Common factors [18] to consider in evaluating general international crimes are: (a) situation of armed conflict or other forms of instability; (b) record of serious violations of international human rights and humanitarian law; (c) weakness of state structures; (d) motives or incentives; (e) capacity to commit atrocity crimes; (f) absence of mitigating factors; (g) enabling circumstances or preparatory action; (h) triggering factors.  If the elements of genocide are not met, but the factors weigh heavily, then there may still be an indication that crimes are occurring.  The risk factors specific to genocide [19] include: (a) inter-group tensions or patterns of discrimination against protected groups; (b) signs of intent to destroy a protected group.

In addition, the risk factors specific to crimes against humanity [20] include: (a) signs of a widespread or systematic attack against any civilian population; (b) signs of a plan or policy to attack any civilian population.  Moreover, the risk factors specific to war crimes [21] include: (a) serious threats to those protected under International Humanitarian Law; (b) serious threats to humanitarian or peacekeeping operations.  When these risk factors weigh in favor of war crimes, then they increase the likelihood that the severity of the war crime of genocide has been satisfied by the facts.  If the elements are not satisfied for the criteria of genocide, then the facts may still meet the criteria for other international crimes based on the additional factors.

Human Rights Violations of Life, Liberty, and Security of Person

The Universal Declaration of Human Rights [22] (UDHR) was proclaimed by the UN General Assembly in 1948 as a universal standard for all nations.  Article 3 of the UDHR states: “Everyone has the right to life, liberty and security of person.” [23]  Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” [24]  Article 10 states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” [25] Article 20 states: “(1) everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.” [26] Violation of any of these articles are human rights violations.

United Nations Declaration of Rights of Indigenous Peoples (UNDRIP)

UNDRIP is a comprehensive document that emphasizes the rights of indigenous peoples, which was a declaration adopted in 2006 during the inaugural session of the Human Rights Council [27].  The rights of indigenous peoples include all human rights and fundamental freedoms recognized in the UN Charter, UN Declaration of Human Rights, and international human rights law.  The declaration asserts that indigenous peoples are free and equal to all other people and should be free from discrimination particularly based on their indigenous origin or identity [28].  Moreover, in Article 7 [29] of UNDRIP, the indigenous peoples have the collective right to live in freedom, peace, and security as distinct peoples, and shall not be subjected to any act of genocide or other type of violence.  Although UNDRIP is generally not legally binding since the UN Declarations are generally not binding, the declaration represents the international standard [30].  To fall short of these standard deviates from the progress it set out to create.

 UNITED NATIONS RECOGNITION OF GENOCIDE

Armenian Genocide: Recognized by the UN

Less than thirty years before the Nazi Holocaust against the European Jews, the Armenian genocide [31] occurred.  The Armenians were living as national minorities [32] in Turkey and indigenous people in their native land of Armenia [33].  In 1915, Turkish minister Talat Pasha ordered that “all of the Armenians living  in Turkey are to be destroyed and annihilated…Without taking into consideration the fact that they are women and children and disabled, their very existence will be ended, regardless of how terrible the means of destruction may be, and without being moved by feeling of compassion.” [34]

The Turkish government sent official orders that on the surface sought to modernize Turkey, but in truth rounded up Armenian men and sent them to forced labor.  The government ordered mass execution of Armenian political leaders and intellectuals. Moreover, they drove Armenian women and children into the desert without food or shelter [35].  “As in most cases of genocide, the mass killing of the Armenians took place in full view of the international community.” [36] Reports of the disasters suffered by the Armenians were covered in the international press [37].  The Armenian genocide took place during World War I, which left most countries that morally objected preoccupied by their own state of emergency.

“Recent research on mass killing indicates that the crime of genocide needs to be thought of as occurring at various levels of society: at the very top, where decisions are taken that lead to mass murder; at the ‘meso-level,’ where regional officials and their accomplices, the police and military, implement orders or interpret signals from the political leadership that lead to genocide; and at the most basic local level of society, where individuals participate in the killing, steal from the victims, move into their houses, or witness the depredations.” [38]  The Armenian case shows that genocide does not happen overnight, but instead trickles down from the top – from decision makers, to the enforcers – police, and to the basic level – where the targeted group are dehumanized and eliminated.

According to the elemental analysis of the definition of genocide, the case of the Armenian genocide meets all three elements: the group element – Armenian self-identified people; the act element – mass execution and torture leading to death and destruction of this group; and specific intent to destroy this group – proven by the Turkish minister’s declaration of the destruction and annihilation of the Armenian people who were living in Turkey.

In 1985, the United Nations Human Rights Committee recognized [39] that the Turkish acts committed against the Armenians met the legal definition of genocide.  Through UN recognition, the Armenians have been able to reach the international community. Although the Turkish government continues to deny the genocide, the Armenian community is getting the word out and gaining support in obtaining recognition and possibly reparations [40].

West Papuan Genocide: Not Recognized by the UN

West Papuans are like the Armenian people because they are facing human rights violations and the slaughter of their people.  In addition, the West Papuan genocide is taking place in full view of the internet community because there are many eyewitness reports, studies, and videos published and continuing to be published online.

Unlike the Turkish government who gave official orders revealing their plans for the Armenian genocide, the Indonesian government has not given official orders revealing their plans.  However, the Indonesian government has an economic motive to remain secretive in their plans to extinguish West Papuans because they want to keep West Papuan mineral resources.  Also, imperialist countries like Indonesia have grown savvier given the historical impact of prosecution in international criminal court, given the power of the UN to intervene if they have reasons to assist an oppressed group, and given the basic desire for uninterrupted power.

The Indonesian government has refused to allow foreign journalists to conduct a thorough investigation which would bring light to their treatment of the indigenous population [41].  Moreover, the Indonesian government expelled human rights advocate organizations including the International Committee of the Red Cross and Peace Brigades International, and denied visas for Amnesty International and Human Rights Watch [42]. Indonesia’s paranoia of and resistance to non-biased foreign organizations and investigation only highlights that there is something the government is trying to hide.

The Indonesian government continues to target the West Papuans with arbitrary arrests, excessive police force, torture, and rape – all of these activities having a strong likelihood of leading to death.  As recent as August 1, 2017, Indonesian police opened fire on West Papuan protesters without warning which resulted in one killing, and the wounding of seven people including two children [43].  On October 27, 2016, at least nine West Papuan people were shot and one was killed as the Indonesian police opened fire in Manokwari [44].

In 2015, there were two hundred seventy-seven arbitrary arrests, forty-one heavily wounded, and fifteen senseless deaths at the hands of the Indonesian police [45].  Also, in June 2012, Indonesian security forces bayoneted West Papuan civilians and burned their houses and cars.  Paul Barber, coordinator of TAPOL [46] (meaning ‘political prisoner’ in Indonesian), which works to promote human rights, explained that Indonesian “violations often occur in remote areas, including the border area, and many go unreported. Troops tend to be unwelcome and underpaid, and their arrival usually precedes military business rackets, illegal logging, and human rights violations, including sexual violence against women and girls.” [47]  Barber went on to explain that the Indonesian government view political activists and human rights defenders as separatists and traitors whom the government isolate and silence to deny connection to their abusive actions and the plight of the indigenous people [48].

Counterinsurgency is a military action by an army against the people who are fighting to take control of a government [49].  In a 2002 Amnesty International report, the record showed counterinsurgency operations by Indonesian security forces resulted in “gross human rights violations, including extrajudicial executions, enforced disappearances, torture and arbitrary detentions.” [50]  In other words, the Indonesian government’s alleged counterinsurgency operations are just smoke screens to destroy the West Papuans. Indonesian security forces have committed one incident of torture on West Papuans every six weeks for the past half century according to a recent study by Dr. Hernawan – who worked with the Catholic Commission for Justice and Peace in Western Papua for more than a decade and researched the torture cases from records of local and international human rights organizations, anthropologists, and churches [51].

Essentially, Indonesia is using torture as a means to control the West Papuans.  Of the four hundred thirty-one documented cases from 1963 to 2010, only 0.05 percent [52] of the tortured West Papuans were proven to be militia which means that the majority of victims were innocent civilians.  Moreover, many tortures and killings have been filmed and leaked bringing more attention to the plight of the West Papuans.  In 2009, the execution of a tribal leader and former political prisoner was filmed and leaked online the year after [53].  In 2010, a graphic video [54] surfaced online of Indonesian military torturing two West Papuan farmers; one man’s genitals seared with a burning stick and the other men threatened with a blade pushed against his throat and face.  The following year, the Indonesian government gave very light sentences – only months – to the soldiers involved in the torture caught on video.

In 2011, the Indonesian security forces were caught on video [55] again when they opened fire at an independence rally and killed six protesters.  The Indonesian open shooting into a peaceful gathering demonstrates their intentional harm to the West Papuans because this type of violence only leads to death given the directed force, type of weapons, and targeted people.  In 2012, another West Papuan political leader was gunned down by the Indonesian police [56].

The collective torturous and murderous acts of the Indonesian government easily meet the first two elements of the definition of genocide: the group element (self-identified West Papuan indigenous people of Western Papua), and the act element (shooting to death and torture by deliberately putting West Papuans in conditions of life calculated to bring about physical destruction and eventual extinction of their whole population).

Although the third element of specific intent is not as easy to prove, it can be inferred by the Indonesian government’s resistance to neutral parties entering the territory to conduct a thorough investigation.  This investigation would be welcomed by a guiltless government that wanted to exonerate itself from all the accusations of mass murders and torture. 

SOVEREIGNTY FOR INDIGENOUS PEOPLE

Native American: Tribal Sovereignty and Self-Determination

Native Americans are the indigenous people of the land occupied by the United States. Although they are a vast and diverse group, they are united by shared territory, cultural values, and self-identity.  Being indigenous people to valuable land and resources, the Native American tribes have faced a difficult relationship with colonial powers.  The most tumultuous relationship is with the United States due to the tensions between tribal sovereignty versus federal power versus state powers.  But through the use of treaties, Native Americans have affirmed their inherent rights to self-govern because they are a recognized people who are entitled to direct and control their own lives.

Tribal sovereignty for Native Americans includes rights to self-government and the right of occupancy of land [57].  In Samuel A. Worcester v. The State of Georgia (1832), the United States Supreme Court ruled that the states did not have criminal jurisdiction on tribal land [58].  Essentially, Worcester asserts tribal sovereignty by having the power to resist the imposition of state sovereignty.  In Michigan v Bay Mills Indian Community (2014), the state of Michigan sued to force the Bay Mills Indian Community tribe to cease from operating their casino off their reservation [59].  The Supreme Court held that tribal sovereign immunity barred the suit altogether.  Although the Native American tribes are domestic dependent nations, they still exercise inherent sovereign authority.

Canons of Statutory Construction [60] are not mandatory rules, but guidelines for judges to determine the Legislature’s intent in statutory language and congressional intent in other circumstances.  There are three canons: (1) treaty interpretation canon [61] – Courts are required to construe treaties and agreements with tribes as Native Americans understand them; (2) ambiguity canon [62] – Courts are required to construe treaties, statutes, and other types of law in favor of Native Americans in an effort to resolve ambiguities in their favor; (3) congressional intent canon [63] – Courts are required to construe federal statutes not to do away with or limit tribal sovereignty and rights but instead preserve them except if the Congress “clearly and unambiguously intended” those laws to limit them.

Civil rights are enforceable privileges that if interfered with by another gives rise to action for injury [64].  The Constitutional Rights of Indians – better known as the Indian Civil Rights Act [65] (ICRA) of 1974 – was enacted to assist in tribal internal affairs.  In general, the act requires tribal courts to uphold civil liberties of tribal members including due process [66].

Self-determination is the right of the people of a territory to determine their own future political status [67].  The Congressional statement of findings – better known as the Indian Self-Determination and Education Assistance Act of 1975 – authorized United States government agencies to enter a self-determination contract or contracts with federally recognized Native American tribes which enhances the tribe’s authority to self-govern because they can administer the funds and better determine their own welfare [68].  As a result of the resilience of Native people, the advancement of tribal law, and the mechanisms set in place to preserve Native peoples’ inherent rights, these indigenous people have civil rights and freedoms, and are strengthening their path towards self-determination.

 West Papuan Plea for Sovereignty and Self-Determination

West Papuans are like Native Americans in that both people are the indigenous people of their homeland yet both are suppressed and limited by an occupying nation.  While some Native American tribes have federally recognized treaties which uphold the agreement between the Native people and the United States, the West Papuans do not [69] have any treaty with Indonesia.  This is likely because the Indonesian government is less interested in negotiating with the indigenous people and more interested in permanently removing them by any means necessary.  Although the United States fails to achieve the ideals of UNDRIP, that does not remove UNDRIP as the standard for empowering indigenous people and removing the abuses of colonialism and occupying powers.

Given Indonesia’s approach to systematically annihilating the West Papuans, the American model of self-determination will not be enough.  The ideal would be for the UN to pressure Indonesia into adopting the UNDRIP and giving West Papua full sovereignty, and not mere quasi-sovereignty.  As a result, the emergency situation of genocide in West Papua requires a solution that moves beyond working with the Indonesian government because the government has shown they cannot be trusted to meet the indigenous people halfway.  Indonesia must leave the territory.

REMEDIES FOR WEST PAPUA

There are remedies for West Papua. The first is a response to the economic incentive of Indonesia. Given the fact that the Indonesian government is building its wealth by mining West Papuan territory, an attack on their economics may be the best course to follow. The International Criminal Court [70] (ICC) is an independent court system, not an agent of the UN, which can intervene in this grave situation and prosecute individuals who hold high political or military office.  Since ICC only has jurisdiction [71] in nations which agreed to accept ICC jurisdiction and with respect to events that occurred on or after July 1, 2002 when the jurisdiction statute passed, then the UN must strongly urge Indonesia to join the ICC community.  Next, ICC should prosecute the top officials of Indonesia’s government and military, and then ICC judges should order reparations [72] to West Papuan victims including restitution, compensation, and rehabilitation. Specifically, the ICC should order Indonesia to cease selling the mineral resources of West Papua in order to discourage Indonesia’s interest in and occupation of West Papua.  After Indonesia’s government is weakened economically, their abusive military forces will be weakened as well due to decreased funding.

The second remedy is that West Papuans expand their political identity into the more encompassing political and unified identity as indigenous “Papuans” asserting their shared heritage with Papua New Guinea and demonstrating all the Papuan relevance and interests in the Papuan land.  Papuans on the western and eastern side of the territory should work together and bring the West Papuan claim of genocide to ICC for reparations and redress of human rights violations.

The third remedy is for the UN to publicly declare that Indonesia cease their governance of West Papua, move out of the territory, and pay reparations to the West Papuans for the loss of property and lives.  According to Article 1 [73] of the UN Charter, the purposes of the UN are to maintain international peace and security, take effective measures for the prevention and removal of threats to peace, suppress acts of aggression or breaches of peace, and to bring conformity with the principles of justice and international law.  In Article 2, the member states (countries) of the UN must maintain sovereign equality, settle disputes by peaceful means, and refrain from threat or use of force against political independent groups in conformity with UN principles [74].  Although the UN shall ensure that non-member countries act in accordance with the same principles of peace, justice, and international law, the UN is not [75] authorized to intervene in matters within domestic jurisdiction of any country.  However, according to Article 39, the UN shall employ the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations [76].

Article 41 states that the Security Council may call upon member countries of the UN to take measures against the offensive nation including measures such as interruption of economic relations of rail, sea, air, postal, telegraphic, radio, and other means of communications [77].  In addition, if the Security Council considers that these measures are inadequate, then it may call upon member countries to take action against the offending country by means of air, sea, or land forces necessary to restore international peace and security [78]. As such, the UN is restricted from entering Western Papua to assist and save the persecuted indigenous people, but after review of the mounting evidence against Indonesia the Security Council will surely determine the blatant existence of Indonesia’s threat to peace and breach of peace in West Papua, and Indonesia’s aggressive and fatal aggression against the indigenous people of West Papua.

The Security Council has reason to interrupt the economic relations of Indonesia because it is Indonesian economic motive which is fueling their intentional erasure of West Papuans. Nevertheless, this measure may be inadequate in stopping the genocidal acts of Indonesia. For that reason, the Security Council should also call upon the member countries to take forceful action against Indonesia, invade the Indonesian occupation of West Papua, and forcibly stop the Indonesian war crimes and genocidal acts perpetrated against the indigenous West Papuans.

By most accounts, the number of West Papuan lives that have been lost due to the Indonesian government’s oppression is 500,000.  This is a crime against humanity of vast proportion.  To evoke a well-known genocide from the prior century, the number of murdered West Papuans is already one twelfth of the number of Jews who were killed under Hitler’s Third Reich.  Without pressure from the UN and the international community, this number will certainly continue to rise.  At what point does the wholesale killing of a population become a holocaust?  It is with this hope that the slaughter of West Papuans is halted before it reaches that tragic milestone.  To move forward, the UN must recognize the sovereignty of West Papua to Free West Papua.

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