Part of the elite thinks policy on East Timor a mistake

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.