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Indonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian Control

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A paper prepared for the Indonesia Human Rights Network

By the Allard K. Lowenstein International Human Rights Clinic, Yale Law School

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SUMMARY

This paper considers whether the Indonesian government’s conduct toward the people of West Papua constitutes genocide, as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The paper begins with a detailed account of the human rights situation in West Papua from the beginning of Indonesian rule in 1963 until today. It then analyzes the law of genocide as applied to the West Papuan case. Although the paper does not offer a definitive conclusion about whether genocide has occurred, it finds in the available evidence a strong indication that the Indonesian government has committed genocide against the West Papuans. Moreover, even if the acts described in the paper were not carried out with intent to destroy the West Papuans as a group, a necessary element of the crime of genocide, many of these acts clearly constitute crimes against humanity under international law. A summary of the paper’s principle findings follows.

Introduction to the Law of Genocide

The Genocide Convention, which was adopted by the General Assembly in 1948 and entered into force in 1951, declared that genocide is a crime against international law. It established that persons found guilty of genocide or genocidal acts “shall be punished,” and it imposed affirmative obligations on States Parties to undertake to prevent and punish the crime. The International Court of Justice has recognized the Convention’s proscription of genocide as a part of customary international law and a jus cogens norm, a principle recognized by the international community as one from which no derogation is permitted.

Article II of the Genocide Convention defines genocide as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. Imposing measures intended to prevent births within the group;

5. Forcibly transferring children of the group to another group.

Under this definition, the crime of genocide consists of two important elements: the prohibited act and the requisite intent. Thus, in analyzing whether the Indonesian government has committed genocide against the West Papuans, this paper considers: 1) whether the West Papuans constitute a group under the Convention’s definition of genocide; 2) whether the acts perpetrated against the West Papuans are among those described by this definition; and 3) whether these acts were carried out with intent to destroy the West Papuans as a group.

The Group Element of the Crime of Genocide

Genocide is a collective crime that targets a national, racial, ethnical, or religious group. Although West Papuans are linguistically and culturally diverse, they belong to the Melanesian race and have been viewed by the Indonesian government as a group that is both racially and ethnically distinct from Indonesia’s majority Javanese population. The West Papuans also have a common national identity that has been strengthened in the course of their common struggle for independence from Indonesian rule. Therefore, this paper concludes that West Papuans clearly fit within the ambit of protection delimited by the four kinds of groups listed in Article II of the Genocide Convention.

The Act Element of the Crime of Genocide

Indonesian military and police forces have engaged in widespread violence and killings in West Papua. This paper documents a history of massacres of the West Papuan people, from the killing by aerial bombardment of several thousand Papuans in Jayawijaya in 1977 to the use of napalm and chemical weapons against villagers in 1981 to the massacre of 32 West Papuans in Wamena in October 2000. Indonesian authorities have also been responsible for numerous extrajudicial killings, including torture killings of detained prisoners, assassinations of West Papuan political, cultural, and village leaders, and brutal killings of civilian men, women, and children. This pattern of massacres and killings falls squarely within the first category of act identified by the Genocide Convention, “killing members of the group.”

Indonesian military and police force have subjected West Papuans to arbitrary and mass detention, torture, and other cruel and inhuman treatment or punishment. Detained Papuans have suffered electric shocks, beatings, pistol whipping, water torture, cigarette burns, and confinement in steel containers for months on end. Many West Papuans have been “disappeared” and likely tortured or killed, their family members subjected to psychological trauma and often severe economic deprivation as a result. Indonesian soldiers have also committed numerous acts of rape and sexual violence against West Papuan women, frequently in public and sometimes accompanied by mutilation or murder or both. Such acts of rape and sexual violence, mutilation, torture, cruel and unusual treatment or punishment, and disappearance constitute unequivocal acts of “serious bodily or mental harm to members of the group,” the second category of act under the Genocide Convention. Many of these acts have resulted in the deaths of West Papuans, thus falling within the “killing” category as well.

At the same time, the Indonesian government’s systematic program of resource exploitation, destruction of Papuan resources and crops, compulsory and often uncompensated labor, transmigration, and forced relocation has caused pervasive environmental harm to the West Papuan region, undermined traditional subsistence practices and the social fabric and governance systems of indigenous communities, and led to widespread disease, malnutrition, and death among West Papuans. Mining and logging operations, undertaken in support of PT Freeport and other multinational corporations, have caused devastating environmental damage and the sickness or death of thousands of West Papuans. To facilitate mining operations and resettle transmigrants from elsewhere in Indonesia, the government has intentionally forced West Papuans from their traditional lands to unfamiliar locations, often leaving them without means of subsistence. The government has consistently refused to provide adequate medical care to the West Papuans and has discriminated against them in the provision of basic health care and reproductive services. Indonesian military forces have directly attacked West Papuans’ property and crops and have occasionally forced Papuans to work without compensation or below subsistence wages, under threat of arrest.

Many of these acts, individually and collectively, clearly constitute crimes against humanity under international law. Moreover, by engaging in such acts with the knowledge that they would result in the destruction of the indigenous people of West Papua, the Indonesian government likely has “deliberately inflict[ed] conditions of life calculated to bring about [the West Papuan group’s] destruction in whole or in part,” implicating the third category of act under Article II of the Genocide Convention.

The Intent Element of the Crime of Genocide

To be found guilty of the crime of genocide, a perpetrator must have engaged in proscribed acts “with the intent to destroy, in whole or in part” the victim group. Intent consists of specific intent to destroy the group, not simply a general intent to commit the proscribed acts. However, because few perpetrators of genocide leave behind a clear record of intent, this element usually must be inferred from their acts, considered as a whole, along with any other available evidence that the victim group was targeted “as such.”

In the West Papuan case, the required intent cannot be inferred as easily as it was for the Holocaust or the Rwandan genocide. However, this paper finds that the Indonesian government has engaged in a systematic pattern of acts that resulted in harm to, and the destruction of, a substantial part of the West Papuan group. The Indonesian government has disavowed genocidal intent by citing economic goals and repression of West Papuan “separatist” activity as the motivation for many of its acts. However, there is little doubt that animus toward the West Papuans has been a critical part of the motivation for the government’s policies. Moreover, although the obvious, inevitable effect of these policies and acts would be the destruction of the West Papuan group, the Indonesian authorities did nothing to counter this effect. This paper does not resolve conclusively the question of whether the acts perpetrated by the Indonesian government against West Papuans were committed with intent to destroy the West Papuan group, as such. However, according to current understandings of the Genocide Convention, the pattern of acts and omissions documented by this paper supports the conclusion that the Indonesian government has acted with the necessary intent to find that it has perpetrated genocide against the people of West Papua.


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