Part of the elite thinks policy on East Timor a mistake<\/p>\n
By Klomjit Chandrapanya<\/p>\n
Aug. 8 1999 will see East Timorese vote on whether to accept a
\nproposed special autonomy status for East Timor or reject it,
\nleading to East Timor's separation from Indonesia. Whatever it is
\nofficially called, Prof. Roger S. Clark, international law
\nprofessor of Rutgers Law School, State University of New Jersey,
\nthe United States, told The Jakarta Post it is an act of self-
\ndetermination that is not 24, but 44 years late.<\/p>\n
JAKARTA (JP): When Portugal joined the United Nations in 1955
\nit was required to submit a list of its "non-self-governing
\nterritories" -- a polite term for a colony -- which the colonial
\npower had repeatedly refused to do, arguing that it only had
\n"overseas provinces".<\/p>\n
It would take years before the international body, joined by
\nnew members who were former colonies themselves, could gradually
\ndevelop guidelines as to what constituted a non-self-governing
\nterritory and the principles for the process of decolonization.<\/p>\n
What was clear was that the UN General Assembly was very
\nsuspicious of any process in which an outcome other than
\nindependence was to take place.<\/p>\n
In the event that the people were able to freely exercise
\ntheir right to self-determination, the process would have to have
\nbeen transparent, the people properly educated of their choices
\nand with UN involvement -- all of which were lacking during May
\n1976, when Indonesia claimed that a regional popular assembly in
\nDili had requested East Timor be incorporated into the country,
\nand why the international body never accepted Indonesia's
\nposition on the issue.<\/p>\n
Question: Is the Aug. 8 referendum based on the concept of
\nself-determination under international law?<\/p>\n
Prof. Clark: I think they're calling it a "consultation" but
\nI consider it a referendum, but I think the word must have been
\noffensive to the Indonesians. I think that's a reasonable way to
\ndescribe it. An act of self-determination. That's exactly how the
\nUnited Nations is describing it. In United Nations lingo, if
\nthere is a question of a status of a nation other than
\nindependence, you have a referendum, or something that's close to
\na referendum -- a consultation with the adult population.<\/p>\n
The only other thing other than a referendum that was regarded
\nas respectable was a consultation the UN did with New Zealand and
\nthe Cook Islands when the Cook Islands entered into a status of
\nfree association with New Zealand. And there they did it with a
\ngeneral election, at which the issue at stake was whether you
\nagreed with the constitution that had been provided to set out an
\narrangement between the Cook Islands and New Zealand. There were
\nsome who disputed that approach and said it should have been a
\nreferendum.<\/p>\n
Question: Can Indonesia or any other party come out later and
\nsay this upcoming referendum was not fair because it did not allow
\nsufficient time for the people to be educated about what their
\nchoices meant? How long would be considered fair?<\/p>\n
Answer: I don't know what's fair. The UN has sometimes allotted
\nlonger time, sometimes shorter. There are no rules out there that
\ntells you what is a fair amount of time for something like this. It's a
\npolitical calculation of some sort.<\/p>\n
So this is still open to argument?<\/p>\n
Oh! I think that some people will argue this on both sides
\nlater. Yes, I'm sure whatever happens, there'll be some people
\nwho will have that argument. I don't have any good point of
\nreference, not at this point anyway. See, I always thought that
\nthe people of East Timor are pretty clued up on what they want
\nand what they know and what they experience. I might be
\ncompletely wrong about that. I don't know how you can tell
\nwhether people are properly educated about what's going on.<\/p>\n
There has been some concern that the result of the vote
\ndepends on who gets to vote. What if only a small number get to
\ncome to vote or if some are barred from coming. How do you deal
\nwith that?<\/p>\n
The understanding is that the secretary-general is going to
\nwrite a report at the end of this and try to assess whether it
\nwas fair or not. There are going to be a lot of international
\nobservers, and I think that if only 20 percent of the population
\ncame to vote then we're going to say that this was not an
\nadequate consultation and everybody's going to go back to the
\ndrawing board and start negotiating again for a year or two.<\/p>\n
I don't see any other way than that. My read on what's going
\nto happen is that virtually all the overseas East Timorese are
\ngoing to vote, in Australia, Portugal and so on, and that a very
\nlarge number of the locals are going to turn up but I don't know.
\nThey may be scared stiff by the Indonesian military presence or
\nmaybe be totally intimidated by the process. They may not
\nunderstand what's going on. The UN may screw it up. The
\norganization may be a disaster. I think all sorts of things can
\nhappen. It's a real gamble.<\/p>\n
Can the referendum be considered fair to the original
\ninhabitants if eligible voters include those who just recently
\nresettled there?<\/p>\n
It's got to be the married ones. There can't be enough of the
\nones who got there 17 years ago to make a difference. Nobody
\nseems to know the real demographics. That's a wild card. But then
\nthere are those people like Australians or Portuguese who married
\nEast Timorese also. I think it's going to be overwhelmingly
\nindigenous East Timorese who are going to vote. There's a real
\nunknown about how many Indonesians or Javanese who resettled
\nthere and got married. (NOTE: eligible voters must be 17 or
\nolder. They must have been born in East Timor, or have at least
\none parent who was born there, or be married to someone born in
\nEast Timor or with a parent born there).<\/p>\n
Have there been other cases where the eligibility of voters
\nhas had an impact on the result?<\/p>\n
That's the biggest issue of Western Sahara because the
\nMoroccans really packed it up with indigenous Moroccans and it
\nwas really hard to tell the difference. It was certainly an issue
\nin New Caledonia. There were a lot of coming and going. There's a
\nlot of questions about who gets to vote there. If you go back
\nhistorically, when there was a plebiscite at the end of World War
\nI, on which way that people went in Europe, it was a terrible
\nmess, with the end of the Austro-Hungarian empire, which had
\nminorities all over the place. There were awkward questions there
\nabout who got to vote. There are no really clean rules on this.<\/p>\n
There is a General Assembly resolution from about 1980 that
\nsays hard words about the colonial powers packing other ethnic
\ngroups into a colony but there's not much you can do about it.
\nOne thing that's not clear to me is that the secretary-general
\nand Indonesia and Portugal are part of this deal, and I don't
\nknow how much the resistance was involved in the negotiations.
\nI've not heard that they're not comfortable about it, though.<\/p>\n
Let's say everything went well. There's a government in place
\nbut then, as the case might happen, when you said Indonesia's
\nstrongest argument for using force against East Timor was the
\nargument of threat to their long-term security and not wanting a
\ndagger at their throat. Can the same argument be used again?<\/p>\n
It was a strong political argument but it's not a legal
\nargument. There's nothing in the UN Charter that says you can
\ntake out your neighbor because you think they're going to be of
\ndanger to you. That's taking self-defense to unbelievable
\nheights. But I talked to a lot of Indonesians who genuinely
\nbelieved it.<\/p>\n
To some extent, take your mind back to the 1960s and 1970s.
\nThere were people who believed in the domino theory, too, but
\nthere are Indonesians who have a deep-seated fear of communism. I
\ndon't think the Fretilin were even marginally communist but they
\nused rhetoric which they got from Angola because the Portuguese
\ndumped them there as exiled political prisoners. They talked that
\nway but I don't think they believed it. There's more than the
\ncommunist.<\/p>\n
Indonesia is a strange construct. It got put together by the
\nDutch. There's no other reason why this particular entity exists,
\nexcept the Dutch put them together and called them the Dutch East
\nIndies. They're scared stiff about it breaking apart at the
\nseams, as well they might.<\/p>\n
What can the international body do when it comes to an
\nargument like that?<\/p>\n
I don't know if the international body can do anything. I've
\nwatched the UN all my professional life and they don't have a lot
\nof resources. They have the moral power and I don't think there's
\nany question that the secretary-general has put his energy, his
\nprestige, on this deal and he's going to send a few hundred
\npeople there. But if Indonesia sends a few thousand and screws it
\nup, I doubt very much that the Security Council is going to
\nfight. They're not going to send 50,000 people to fix it. I don't
\nthink they can fix it. We're talking symbols and moral power.<\/p>\n
My read on it is that there is a substantial part of the
\nIndonesian government and people around Habibie that concluded
\nthat it was a mistake and they're going to cut their losses and
\nget out with as much face as they possibly can. It's the same
\ntype of calculation that the Apartheid government in South Africa
\nmade about Namibia. I don't know that the international body can
\ndo much but keep talking about it and annoy them. It has been
\nvery costly to Indonesia in diplomatic terms.<\/p>\n
But East Timor was a back-burner issue for how long?<\/p>\n
Yes, 25 years. But finally the time was just right and the
\ndeal was struck.<\/p>\n
NATO set a precedent for intervention in Kosovo for
\nhumanitarian reasons. What happens when, suppose in the future,
\nthere are problems? Indonesia can use the same argument. This
\ntime it could even be said that "we have historical ties. There
\nare Indonesians who have resettled there since 1975. We can't let
\nthem get killed" and here we go again.<\/p>\n
It's a very dangerous precedent. I think it was a big mistake
\non NATO's part to do that. I think there's a case to be made if
\nthe Security Council approves an intervention then does it. I'm
\nnervous for even that. I think it's a big mistake to have
\noperated that way. By and large, so-called humanitarian
\ninterventions in the past have been pretty doubtful in nature.<\/p>\n
They use it as a fig leaf for other reasons for going in; U.S.
\nand the Dominican Republic, U.S. and Guatemala. The West
\noverwhelmingly condemned Vietnam for going into Cambodia but, my
\nGod, if there were any case for humanitarian intervention it was
\nCambodia and yet we overwhelmingly supported Pol Pot. I argued
\nagainst the adoption of humanitarian intervention a few years
\nback. It's a persistent theme. I think if you can't do it
\npeacefully, you probably shouldn't do it. But what might that
\nmean if people were getting killed?<\/p>\n
Really, when you're going to do things like this you've got to
\ndo it with the U.S. running the logistics. And the U.S. is not
\ngoing to do many of these. There's a very strong part of the U.S.
\nthat thinks that the NATO thing was really dumb.<\/p>\n
The real problem is that this would set a bad example for
\nother provinces like Aceh or Irian Jaya.<\/p>\n
That's why this was stupid to do in the first place because
\nthey had put themselves in a position that now looks like Aceh,
\nwhereas it wasn't like Aceh. It was a non-self-governing
\nterritory. It was Portoguese's. What's more, (Indonesia) had said
\nthat this was not part of the Netherlands East Indies. What they
\nshould say, and I think that's what they have said for this
\nagreement, is that East Timor is a special case.<\/p>\n
Are you saying that Aceh or Irian Jaya don't have the right of
\nself-determination under international law?<\/p>\n
I'm saying it's a much harder case to make. East Timor is a
\nclean case of decolonization and the right for self-
\ndetermination. Aceh has always been a special case. But they were
\nnever a special case the way East Timor has been a special case
\n-- recognized by the UN as having the right to self-
\ndetermination.<\/p>\n
West Irian, West Papua, they were sold out by the UN, there's
\nno question about it -- their so-called "act of free choice". It
\nwas a farce. It was a sell-out by the Dutch and the UN, very
\nembarrassing. If pushed, I'd say West Irian never got to exercise
\nits right to self-determination, either.<\/p>\n
You really can't lay the blame about East Timor on the UN.
\nPeople like the U.S. didn't really want to do anything and so on
\nbut you can really lay the other one on the UN's feet. And don't
\nforget the Moluccans, all these guys who were trying to get out
\nin 1948-1949. East Timor was a very easy case. This had been the
\ncase where the Portuguese had been there for a very long time and
\nthe Dutch were in another place. There were clean lines. People
\nhad argued in New York and had come with the conclusion that this
\nwas a separate entity and Indonesia had ceded that at all
\nrelevant times.<\/p>\n
What is the most important lesson learned from East Timor's
\ncase in terms of international law?<\/p>\n
What I've learned is that there are problems that are long-
\nterm, almost intractable issues, and you've got to stay with
\nthem. Sometimes they work out, sometimes they won't and the UN
\nhas had a number of them; the Middle East is an obvious one.
\nThere are a lot of issues of international law that are like that
\nand you've got to keep working on them. International law in a
\nlot of ways is making a moral statement and then waging it and
\nreiterating it until in the future we get it right. Human rights
\nis like that, generally. It's progressive. The U.S. Bill of
\nRights was out there for about 150 years before it started
\nmeaning anything, before the courts started grabbing it and
\nrunning with it and imposing it.<\/p>\n
Do you think we're missing anything running up to Aug. 8?<\/p>\n
A substantial international military presence is what's
\nmissing but that's not going to happen. There's a really chilling
\nsentence in the secretary-general's report to the Security
\nCouncil where he says he had encountered "East Timor unrealistic
\nexpectations of the UN", and what that is a code for is that
\npeople really think that we are going to put people on the ground
\nand that they're going to be safe. They're not. They are going to
\ndo this on a shoe-string. Some of the UN people are going to get
\nkilled. They are putting unarmed people in a really difficult
\nsituation. It takes a lot of guts to be there. They're not
\nputting the right forces in, but for the UN, it's a lot.<\/p>\n
This is a much bigger enterprise than they have put in the
\nother referendums that have gone on and they're actually running
\nit. I think that the secretary-general is gambling that the
\nIndonesian government is committed enough to this, and that the
\npolitical situation in Indonesian is not going to change enough
\nby August. If you wait another month or two, God knows what's
\ngoing to happen in Indonesia.<\/p>\n
Prof. Clark has been involved in the case of East Timor at the
\nUN since 1978 while working with the International League of
\nHuman Rights, a non-governmental organization on decolonization
\nsince the early 1970s. He was here at the invitation of ELSAM, a
\nJakarta-based NGO for the protection of civil, political and
\nhuman rights.<\/p>",
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