The legal road for West Papua: a dead-end?

Legal actions might assist the West Papuan struggle for freedom, but this approach is extremely difficult and entails significant risks. Using the courts plays to the opponents’ strengths: it may not do much to erode Indonesian rule in West Papua, and risks reinforcing it. Priority needs to be put on nonviolent strategies involving large numbers of ordinary people, particularly inside West Papua.

Risks of a legal strategy

Firstly, using legal channels requires considerable money and resources and thus restricts involvement by ordinary people. Even with high profile pro-bono support, any legal case will be extremely expensive. Although West Papua is rich in natural resources, the movement is short on cash. The Indonesian government will do all it can to delay and derail the case going to court, both in Indonesia and internationally. If the case does make its way to the courts, the Indonesian government will spare no expense in fighting it. Legal battles are not won solely by money, but it definitely helps. In court, the movement will be fighting an opponent with more money and resources.

Secondly, a legal strategy favours the powerful. In terms of access to people of influence on the world stage, the Indonesian government has more power than the movement. Government power is not the only kind of power operating, but it is worth factoring the Indonesian government’s considerable international influence into an assessment of whether to pursue legal actions or how such a strategy might be strengthened.

Thirdly, there are technical legal issues. There is a risk that the case might never be heard simply because the court accepts objections such as that the plaintiffs are mischievous and or the court does not have jurisdiction. Even if the case does get to an international court there is no guarantee the challenge will be successful. A failure to win the case, even on technical grounds, could undermine the cause for self-determination by giving a legal stamp of approval to the Act of Free Choice.

Fourthly, even if the case is successful, there is no guarantee of any subsequent political change. This is the lesson from many other struggles relying on courts and official bodies.

Consider the United Nations. There have been numerous resolutions by the UN General Assembly and Human Rights Commission condemning the Indonesian government’s invasion of East Timor and the subsequent human rights violations committed under the occupation. All were ignored by the Indonesian government, some for decades.

In the 1990s, the International Court of Justice was asked to rule on the legality of nuclear weapons under international law. The court gave an opinion, some parts of which supported the goals of anti-nuclear campaigners. However, no government with nuclear weapons took any substantial action, such as moving to disarm, in response to the court opinions.

The situation is similar in West Papua. The Indonesian government’s occupation is clearly illegal, as Saltford[3] and Drooglever[4] have shown convincingly. The Indonesian Government will be unlikely to give up its rule of West Papua just because an international court rules the occupation illegal.

Finally, a legal strategy could act as a dampener on dissent inside West Papua. It could reinforce the belief that Papuans themselves don’t have to actively struggle for their own liberation, because powerful outsiders will save them.

Courts are examples of “official channels” – and they do not work well when dealing with powerful perpetrators, such as governments. People often believe that official channels provide justice, yet they heavily favour those with more money and power. Official channels are usually very slow, can be expensive, and restrict opportunities for non-experts to participate. Issues are taken out of the public domain and moved it to more restrictive arenas, such as courts, that are usually less sympathetic. Even when official channels come up with good recommendations, governments often do not act on them.[5]

The case of West Papua is essentially about power politics and vested economic interests. Therefore, winning in the court of public opinion (in other words building a powerful social movement) and raising the political and economic costs of the Indonesian government’s continued occupation will be more decisive than a legal victory. However, the two strategies could be complementary.

Strengthening a legal case through building a people’s movement

In the past 25 years, international boundaries have been dramatically redrawn and numerous countries have become independent. On 9 July 2011, South Sudan became the world’s newest state. Before that Kosovo and East Timor became independent. During the late 1980s and early 1990s several republics of the former Soviet Union also became independent. The overwhelming majority – with the exception of Romania – did so through nonviolent means. Some, like Estonia, Latvia and Lithuania, won national liberation even though half their population was made up of Russian immigrants. What was decisive about all these movements was that they undermined the occupiers’ legitimacy and disrupted their rule. That outcome can be achieved through violent or nonviolent action.

By nonviolent action we mean sustained, unarmed and extra-parliamentary collective action in the pursuit of political and social goals. Nonviolent action has been used in dozens of countries. Also called people power or civil resistance, nonviolent campaigns have ousted dictators, resisted coups and been effective in challenging racism, exploitation and other injustices.[6]

The history of the international movement against nuclear weapons shows that governments have been most constrained when protest is vigorous. When protest has waned, military races have accelerated.[7]

Recent research into  self-determination struggles waged between 1900 and 2006 shows that struggles for independence or national liberation and territory are very difficult to win, even more difficult than removing a dictator like Suharto or Mubarak. Chenoweth and Stephan compared whether armed or nonviolent struggle was more likely to produce self-determination outcomes (like independence). They found that violent and nonviolent struggles had roughly equal chances of succeeding – about 25%.[8]

With equal odds of success, nonviolent struggle is definitely more desirable: it causes less loss of life, allows for greater participation of ordinary people, and lays the basis for a free and open society after independence. In contrast armed struggle results in higher casualties, less participation and a greater likelihood of post-independence repression. Mixing armed and nonviolent struggle tends to contaminate the gains won by nonviolent struggle.

So what helps these movements succeed? Specifically, what might improve the prospects of the West Papuan freedom movement? Here are some possibilities that could be part of a nonviolent struggle.

1. Make the violence of the Indonesian government and the nonviolent resistance of the Papuans visible to transnational networks that mobilise on behalf of Papuans.
2. Expose the failure of governance in West Papua by withdrawing support for, or co-opting, state institutions like the Majelis Rakyat Papua (MRP), Dewan Perwakilan Rakyat Papua (DPRP – the two Provincial parliaments in Papua Province and Papua Barat Province), local parliaments (DPRD – Dewan Perwakilan Rakyat Daerah) and the civil service.
3. Use nonviolent sanctions to impose economic and reputational costs on transnational corporations in West Papua.
4. Take the struggle to mainstream Indonesia and the societies of the Indonesian government’s elite allies, for example Australian and British governments and corporations.
5. Coordinate with transnational activist networks to alter the Indonesian government’s willingness to maintain the occupation and to affect its capability to do so.

When it comes to challenging the Indonesian government’s legitimacy in West Papua, it is also vitally important that local Papuan and transnational solidarity movements continue to expose not only the historical denial of self-determination but also the ongoing failure of governance. This includes collecting and publicising the testimonies of surviving participants in the Act of Free Choice, participating in strikes, boycotts, noncooperation with Special Autonomy, establishing autonomous cultural, religious, economic and political institutions and other forms of mass based nonviolent challenges to Indonesian rule. Student and youth groups in particular have taken many initiatives; other groups can become more active, including churches, members of the MRP, members of the Papuan civil service, teachers, health workers, Papuan workers in resource extractive industries – and people like those gathered here today.

A legal strategy has the potential to strengthen the case that Indonesian rule in West Papua is totally illegitimate, but only if, at the same time, Papuans themselves are actively refusing to cooperate with, and nonviolently disrupting, Indonesian rule in West Papua. Faced with an adverse legal opinion, but without sustained and widespread protest, the Indonesian government will simply and legitimately point out that Papuans are participating in elections, that local Papuan politicians are in the positions of Governor and Bupati, that the MRP, provincial and local parliaments represent Papuan interests, and that there is a large Papuan civil service running the country.

A legal strategy without a powerful people’s movement is like a bird of paradise with only one wing. It looks appealing but it won’t fly.