Part of the elite thinks policy on East Timor a mistake

By Klomjit Chandrapanya

Aug. 8 1999 will see East Timorese vote on whether to accept a proposed special autonomy status for East Timor or reject it, leading to East Timor's separation from Indonesia. Whatever it is officially called, Prof. Roger S. Clark, international law professor of Rutgers Law School, State University of New Jersey, the United States, told The Jakarta Post it is an act of self- determination that is not 24, but 44 years late.

JAKARTA (JP): When Portugal joined the United Nations in 1955 it was required to submit a list of its "non-self-governing territories" -- a polite term for a colony -- which the colonial power had repeatedly refused to do, arguing that it only had "overseas provinces".

It would take years before the international body, joined by new members who were former colonies themselves, could gradually develop guidelines as to what constituted a non-self-governing territory and the principles for the process of decolonization.

What was clear was that the UN General Assembly was very suspicious of any process in which an outcome other than independence was to take place.

In the event that the people were able to freely exercise their right to self-determination, the process would have to have been transparent, the people properly educated of their choices and with UN involvement -- all of which were lacking during May 1976, when Indonesia claimed that a regional popular assembly in Dili had requested East Timor be incorporated into the country, and why the international body never accepted Indonesia's position on the issue.

Question: Is the Aug. 8 referendum based on the concept of self-determination under international law?

Prof. Clark: I think they're calling it a "consultation" but I consider it a referendum, but I think the word must have been offensive to the Indonesians. I think that's a reasonable way to describe it. An act of self-determination. That's exactly how the United Nations is describing it. In United Nations lingo, if there is a question of a status of a nation other than independence, you have a referendum, or something that's close to a referendum -- a consultation with the adult population.

The only other thing other than a referendum that was regarded as respectable was a consultation the UN did with New Zealand and the Cook Islands when the Cook Islands entered into a status of free association with New Zealand. And there they did it with a general election, at which the issue at stake was whether you agreed with the constitution that had been provided to set out an arrangement between the Cook Islands and New Zealand. There were some who disputed that approach and said it should have been a referendum.

Question: Can Indonesia or any other party come out later and say this upcoming referendum was not fair because it did not allow sufficient time for the people to be educated about what their choices meant? How long would be considered fair?

Answer: I don't know what's fair. The UN has sometimes allotted longer time, sometimes shorter. There are no rules out there that tells you what is a fair amount of time for something like this. It's a political calculation of some sort.

So this is still open to argument?

Oh! I think that some people will argue this on both sides later. Yes, I'm sure whatever happens, there'll be some people who will have that argument. I don't have any good point of reference, not at this point anyway. See, I always thought that the people of East Timor are pretty clued up on what they want and what they know and what they experience. I might be completely wrong about that. I don't know how you can tell whether people are properly educated about what's going on.

There has been some concern that the result of the vote depends on who gets to vote. What if only a small number get to come to vote or if some are barred from coming. How do you deal with that?

The understanding is that the secretary-general is going to write a report at the end of this and try to assess whether it was fair or not. There are going to be a lot of international observers, and I think that if only 20 percent of the population came to vote then we're going to say that this was not an adequate consultation and everybody's going to go back to the drawing board and start negotiating again for a year or two.

I don't see any other way than that. My read on what's going to happen is that virtually all the overseas East Timorese are going to vote, in Australia, Portugal and so on, and that a very large number of the locals are going to turn up but I don't know. They may be scared stiff by the Indonesian military presence or maybe be totally intimidated by the process. They may not understand what's going on. The UN may screw it up. The organization may be a disaster. I think all sorts of things can happen. It's a real gamble.

Can the referendum be considered fair to the original inhabitants if eligible voters include those who just recently resettled there?

It's got to be the married ones. There can't be enough of the ones who got there 17 years ago to make a difference. Nobody seems to know the real demographics. That's a wild card. But then there are those people like Australians or Portuguese who married East Timorese also. I think it's going to be overwhelmingly indigenous East Timorese who are going to vote. There's a real unknown about how many Indonesians or Javanese who resettled there and got married. (NOTE: eligible voters must be 17 or older. They must have been born in East Timor, or have at least one parent who was born there, or be married to someone born in East Timor or with a parent born there).

Have there been other cases where the eligibility of voters has had an impact on the result?

That's the biggest issue of Western Sahara because the Moroccans really packed it up with indigenous Moroccans and it was really hard to tell the difference. It was certainly an issue in New Caledonia. There were a lot of coming and going. There's a lot of questions about who gets to vote there. If you go back historically, when there was a plebiscite at the end of World War I, on which way that people went in Europe, it was a terrible mess, with the end of the Austro-Hungarian empire, which had minorities all over the place. There were awkward questions there about who got to vote. There are no really clean rules on this.

There is a General Assembly resolution from about 1980 that says hard words about the colonial powers packing other ethnic groups into a colony but there's not much you can do about it. One thing that's not clear to me is that the secretary-general and Indonesia and Portugal are part of this deal, and I don't know how much the resistance was involved in the negotiations. I've not heard that they're not comfortable about it, though.

Let's say everything went well. There's a government in place but then, as the case might happen, when you said Indonesia's strongest argument for using force against East Timor was the argument of threat to their long-term security and not wanting a dagger at their throat. Can the same argument be used again?

It was a strong political argument but it's not a legal argument. There's nothing in the UN Charter that says you can take out your neighbor because you think they're going to be of danger to you. That's taking self-defense to unbelievable heights. But I talked to a lot of Indonesians who genuinely believed it.

To some extent, take your mind back to the 1960s and 1970s. There were people who believed in the domino theory, too, but there are Indonesians who have a deep-seated fear of communism. I don't think the Fretilin were even marginally communist but they used rhetoric which they got from Angola because the Portuguese dumped them there as exiled political prisoners. They talked that way but I don't think they believed it. There's more than the communist.

Indonesia is a strange construct. It got put together by the Dutch. There's no other reason why this particular entity exists, except the Dutch put them together and called them the Dutch East Indies. They're scared stiff about it breaking apart at the seams, as well they might.

What can the international body do when it comes to an argument like that?

I don't know if the international body can do anything. I've watched the UN all my professional life and they don't have a lot of resources. They have the moral power and I don't think there's any question that the secretary-general has put his energy, his prestige, on this deal and he's going to send a few hundred people there. But if Indonesia sends a few thousand and screws it up, I doubt very much that the Security Council is going to fight. They're not going to send 50,000 people to fix it. I don't think they can fix it. We're talking symbols and moral power.

My read on it is that there is a substantial part of the Indonesian government and people around Habibie that concluded that it was a mistake and they're going to cut their losses and get out with as much face as they possibly can. It's the same type of calculation that the Apartheid government in South Africa made about Namibia. I don't know that the international body can do much but keep talking about it and annoy them. It has been very costly to Indonesia in diplomatic terms.

But East Timor was a back-burner issue for how long?

Yes, 25 years. But finally the time was just right and the deal was struck.

NATO set a precedent for intervention in Kosovo for humanitarian reasons. What happens when, suppose in the future, there are problems? Indonesia can use the same argument. This time it could even be said that "we have historical ties. There are Indonesians who have resettled there since 1975. We can't let them get killed" and here we go again.

It's a very dangerous precedent. I think it was a big mistake on NATO's part to do that. I think there's a case to be made if the Security Council approves an intervention then does it. I'm nervous for even that. I think it's a big mistake to have operated that way. By and large, so-called humanitarian interventions in the past have been pretty doubtful in nature.

They use it as a fig leaf for other reasons for going in; U.S. and the Dominican Republic, U.S. and Guatemala. The West overwhelmingly condemned Vietnam for going into Cambodia but, my God, if there were any case for humanitarian intervention it was Cambodia and yet we overwhelmingly supported Pol Pot. I argued against the adoption of humanitarian intervention a few years back. It's a persistent theme. I think if you can't do it peacefully, you probably shouldn't do it. But what might that mean if people were getting killed?

Really, when you're going to do things like this you've got to do it with the U.S. running the logistics. And the U.S. is not going to do many of these. There's a very strong part of the U.S. that thinks that the NATO thing was really dumb.

The real problem is that this would set a bad example for other provinces like Aceh or Irian Jaya.

That's why this was stupid to do in the first place because they had put themselves in a position that now looks like Aceh, whereas it wasn't like Aceh. It was a non-self-governing territory. It was Portoguese's. What's more, (Indonesia) had said that this was not part of the Netherlands East Indies. What they should say, and I think that's what they have said for this agreement, is that East Timor is a special case.

Are you saying that Aceh or Irian Jaya don't have the right of self-determination under international law?

I'm saying it's a much harder case to make. East Timor is a clean case of decolonization and the right for self- determination. Aceh has always been a special case. But they were never a special case the way East Timor has been a special case -- recognized by the UN as having the right to self- determination.

West Irian, West Papua, they were sold out by the UN, there's no question about it -- their so-called "act of free choice". It was a farce. It was a sell-out by the Dutch and the UN, very embarrassing. If pushed, I'd say West Irian never got to exercise its right to self-determination, either.

You really can't lay the blame about East Timor on the UN. People like the U.S. didn't really want to do anything and so on but you can really lay the other one on the UN's feet. And don't forget the Moluccans, all these guys who were trying to get out in 1948-1949. East Timor was a very easy case. This had been the case where the Portuguese had been there for a very long time and the Dutch were in another place. There were clean lines. People had argued in New York and had come with the conclusion that this was a separate entity and Indonesia had ceded that at all relevant times.

What is the most important lesson learned from East Timor's case in terms of international law?

What I've learned is that there are problems that are long- term, almost intractable issues, and you've got to stay with them. Sometimes they work out, sometimes they won't and the UN has had a number of them; the Middle East is an obvious one. There are a lot of issues of international law that are like that and you've got to keep working on them. International law in a lot of ways is making a moral statement and then waging it and reiterating it until in the future we get it right. Human rights is like that, generally. It's progressive. The U.S. Bill of Rights was out there for about 150 years before it started meaning anything, before the courts started grabbing it and running with it and imposing it.

Do you think we're missing anything running up to Aug. 8?

A substantial international military presence is what's missing but that's not going to happen. There's a really chilling sentence in the secretary-general's report to the Security Council where he says he had encountered "East Timor unrealistic expectations of the UN", and what that is a code for is that people really think that we are going to put people on the ground and that they're going to be safe. They're not. They are going to do this on a shoe-string. Some of the UN people are going to get killed. They are putting unarmed people in a really difficult situation. It takes a lot of guts to be there. They're not putting the right forces in, but for the UN, it's a lot.

This is a much bigger enterprise than they have put in the other referendums that have gone on and they're actually running it. I think that the secretary-general is gambling that the Indonesian government is committed enough to this, and that the political situation in Indonesian is not going to change enough by August. If you wait another month or two, God knows what's going to happen in Indonesia.

Prof. Clark has been involved in the case of East Timor at the UN since 1978 while working with the International League of Human Rights, a non-governmental organization on decolonization since the early 1970s. He was here at the invitation of ELSAM, a Jakarta-based NGO for the protection of civil, political and human rights.