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APOSITIVE LEGAL DUTY:
THE LIBERATION OF THE
PEOPLE OFEAST TIMOR
EricAvebuiy
Chairman,ParliamentaryHuman Rights Group UK
A papergiven atthe Martin Ennals MemorialSymposium,Universityof
Saskatoon,March6,1993
...all States havea positivelegaldutytorespect,promoteand
assistthe exerciseoftherightofaU peoplestoself-determination,
and a negativedutytorefrainfromanymeasureswhichdeprive
peoples ofthatright.
Hector Gros Espiell,Special RapporteuroftheSub-Commission on
Prevention ofDiscrimination andProtection ofMinorities,TheRightto
Self-Determination:Implementation ofUnited NationsResolutions,
United Nations,New York,1980
The case ofEast Timor is one ofimfinished decolonisation.The United
Nations have declared the nineties as the decade for completion ofthe
process begun atthe end ofthe second world war,for dismantling the
empires ruled from Europe,and EastTimoris one ofa dwindling number
ofterritories still imderconsideration by the UN Committee on
Decolonisation.Itwas,and is still dejure,a colony ofPortugal, whose
adventurers first arrived there as early as 1513.It had been a sleepy
backwater ofthe Portuguese empire,where very little development had
taken place,as Indonesian propagandists are fond ofreminding us.
Noteven the firststeps had been taken towardsself-government under
the Salazar or Caetano dictatorships,although the Portuguese authorities
had been quite happy to leave the local aristocracy to administer the rural
areas.Only after the Portuguese revolution ofApril25,1974 was the
future political status ofthe territory a matter ofdebate,both internally,
and amongtheforeign powersimmediately concerned:the US,Portugal,
Indonesia and Australia.Mr Gough Whitlam,then Prime Minister of
Australia,held informal talks with PresidentSuharto in Jakarta at the
beginning ofSeptember 1974,at which there was a consensus that
annexation to Indonesia was the bestsolution.A spokesman for the
Australian DepartmentofForeign Affairs said thatan independent East
Timor*would notbe capable ofsurviving as a state and would be a
potential threatto the region'.The Foreign Ministers ofPortugal and
Indonesia metin New York,reiterating theirintention to letthe people
decidefreely on theirfuture,butthe Mayor ofDili protested atthe talks
when hesaid on September26 thatpeople objected to having their future
decided by outsiders.^
Meanwhile,preliminary moves were made towards a more democratic
system ofadministration.Three political parties were formed:Democratic
Union ofTimor(UDT),which stood for continued association with
Portugal;Revolutionary Frontfor Independence ofEastTimor(Fretilin),
the party ofindependence,and Apodeti,which favoured integration with
Indonesia.In March 1975,free elections were held for the first and only
time in a number ofregions(concelhos)ofEastTimor,for several hundred
village chiefs(suco liurai),and outofall the successful candidates,only
one was asupporter ofApodeti.2Theelections were notfoughton party
lines,butone authority^ claims that90% ofthe victors were Fretilin
supporters,while the Portuguese officialin charge ofthe process. Major
^Keesing's ContemporaryArcliives,January6-12,1975,26908
2jose RamosHorta,Funu,the unfinished saga ofEastTimor,The Red Sea Press,
Trenton,New Jersey,January 1987
^Hill,H M;Fretilin:the Origins,Ideologies and Strategiesofa Nationalist
Movementin EastTimor,M A Thesis,Monash University,Melbourne,1978.
Jonatas,said that when all the results were in,there wasa balance
between UDT and Fretilin.'*
AsJose RamosHorta wrote,Apodeti,theAssociacaoPopularDemocratico
Timorense never had any popular appeal and was anythingbut
democratic.® TheIndonesianssucceeded in winningover one ortwo ofthe
local chiefs to Apodeti,notably one Guilherme Gongalves,a tyrantwho
had eiyoyed the protection ofthe notoriousFIDE,thePortuguesesecret
police under the dictatorship.Butitbecame clear even to Jakarta that
Apodeti only had a handful ofsupporters,under aleader whose main
distinction wasthat he was the only Timorese to haveserved asentence
for war crimes.Jakarta turned its attention to the UDT,bribingFrancisco
Lopezda Cruz whobecame leader ofthe party and Augustine Mouzinho
the Dili mayor already mentioned,the party vice-chairman.Colonel
Sugianto,an agentofthe army'sintelligenceservice,BAKIN,played on
their fear thatEastTimor could becomeisolated because ofFretilin's
alleged extreme left posture,a line which had also been used to effect with
the anti-communistpowers.Thesetwo wereinveigled toJakartain May
1975 and when they returned,Lopez da Cruzinitiated movesthatled to
the rupture ofthe coalition with Fretilin thathad beensigned in January
1975.6
Then onAugust13,the UDTstaged acoup,launching abriefcivil war
and promptingthe withdrawal ofthePortuguese Governor,LemosPires,
and hisstaffto theisland ofAtaurooffthecoast,from which they never
returned.By theend ofthe month,Fretilin had gained adecisive victory,
and the territory was defactoindependentfrom the beginning of
Septemberonwards.The Fretilinleaders acknowledged Portugal's
sovereignty,however,and on September 16,they called on thegovernor,
LemosPires,tocomeback and resume the decolonisation process."^Jim
Dunn,theformerAustralian Consulin Dili, wenttoAtauro on about
October 18 and urged LemosPires to meetthe Fretilin leaders,butthe
governor was hesitant,having had no properinstructionsfrom Lisbon.In
the end hedid agree to a meeting,providedit was held on aPortuguese
corvettein Dili harbour.The Fretilin leaders accepted this proposal,with
Jim Dimn offering himselfas a hostage to counter theirfear thatonce on
board,LemosPires would have them arrested,butwhenJim returned to
Ataurofor thesecond timeon aboutOctober23,thegovernor had leftfor
Darwin,where he wastalking to emissariesfrom Lisbon.With nofurther
'*Quoted inJohnGTaylor,Indonesia'sForgotten War,Zed Books,London,1991,at
45.
6lbid,p32.
6lbid,p52.
'^JamesDunn, Timor:a people betrayed,Jacaranda Press,1983.
i'l
word from Portugal,the Timorese became convinced thatthey had to go it
alone.®
Meanwhile,Indonesia had already infiltrated troops into the territory
clandestinely.The CIA reported on September4thaton the previous day,
two Indonesian special forces units,each ofsome 100 men,had entered
EastTimor,and a third group consisting ofthree platoons had arrived in
the Bobonaro-Atsabe area in mid-September.The object was to link up
with Timorese under the control ofTomas Gongalves,son of the Apodeti
princeling Guilherme.According to Jose Martins,acollaborator who
defected in 1976,the Indonesians had given military training to Tomas
and halfa dozen other Timorese,and then established a training camp at
Atambua,in Indonesian Timor."On October 7,the Indonesians mounted
an assaulton Batugade,and on October 16 they attacked Balibo, where
they murdered5 newsmen in cold blood,to stop them reporting the
aggression.
All this time,Jakarta was pretending to the outside world thatany
military operations in the territory were a continuation ofthe civil war,
and they were determined to preventthe lie from being exposed.In fact,
however,the British,American and Australian Governments knew
perfectly well whatwas happening and had given Jakarta thegreen light.
The British Ambassador Sir John Archibald Ford advised Whitehall that
it was'in Britain'sinterestthatIndonesia should absorb the territoryas
soon and as unobtrusivelyaspossible', as ifthe600,000 people ofEast
Timor constituted a mere stain on the carpet,to be mopped up with a bit
ofcotton wool. The CIA had been monitoring the situation closely, and
Henry Kissinger, who was visiting Indonesia with PresidentGerald Ford
on December6,the day before the full scale assaulton Dili,the capital,
told the Jakarta press that'the US understands Indonesia's position on
the Timor question'.^i
Before the full scale invasion, the UN General Assembly had already been
considering a Resolution sponsored by Indonesia and others,calling on all
states 'to respectthe inalienable rightofthe people ofEast Timor to self-
determination,freedom and independence'^'^.This weis ofgreat
importance,because itshowed thatnota single memberstate ofthe
United Nations,includingIndonesia herself, dissented from the
proposition thatthe people ofEastTimor were entitled to the rights
conferred on them by the Declaration on the Granting ofIndependence to
®JamesDunn,unpublished communication,Parliamentary Human Rights Group,
London,1993.
"Jose Martins,Affidavitsubmitted to the UN Secretary-General,March 1976.
^"Dale vanAtta and Brian Toohey,TheTimorPapers,part1,NationalTimesof
Australia,May 30-Jun 5,1982.
'iJbid
^^Decolonisation No7;Issueon EastTimor,UN DepartmentofPoliticalAffairs,
Trusteeshipand Decolonisation,August 1976.
Colonial Countries and Peoples, an(jby the International Covenants on
Civil and Political, and on EconomicSocial and Cultural Rights."'Article
1 ofeach ofthe Covenants provides that:
Mlpeoples have the rightofself-determination.By virtue ofthat right they
freely determine theirpoliticalstatusandfreelypursue their economic
socialand cultural development.'^^
Indonesia,havingrestated this rightfor the people ofEastTimor in the
draft Resolution,had to stage an event which could be presented as an act
ofself-determination,though itwas impossible for the occupyingforces to
comply with the provisions ofUN General Assembly Resolution 1541 of
1960.1' ThatResolution was very specific on the criteria thathad to be
satisfied beforeintegration ofan erstwhile dependentterritory with a
sovereign state could be approved.PrincipleIX of1541 provides that:
Integrationshould have comeaboutin thefollowingcircumstances:
(a)The integratingterritory should have attained an advanced stage of
self-government withfreepoliticalinstitutions,so thatitspeoples would
have the capacity to make a responsible choice through informed and
democraticprocesses;
(b)The integrationshould be the resultofthefreely expressed wishes ofthe
territory'speoples acting with fill knowledgeofthe change in their status,
their wishes having been expressed through informed and democratic
processes,impartiallyconducted and based on universal adultsuffrage.
The United Nationscould, when itdeemsit necessary,supervise these
processes.1®
The eventthatwasstage managed by Jakarta in an attemptto satisfy
these requirements was an open session ofthe'Regional Popular
Assembly'in EastTimor,which resolved on May 31,1976,to ask the
GovernmentofIndonesiafor integration.According to an official account
this Assembly was'elected'and'composed representativesfrom all districts
in East Timor'^^,butthelaw passed by the'Deliberative Council ofEast
Timor',ashadowy body which had beenformed by the Indonesian
occupation forces on December 18,1975,atthesame time as the Foreign
Minister Adam Malik announced the establishmentofa'provisional
1® United Nations,GA Res.1514(XV),December 14,1960.
United NationsTreaty Series,vol993:3.
United Nations Treaty Series,vol999:171
^®Article 1,InternationalCovenanton Civiland Political Rights,December 16,
1966.
United NationsG A Res.1541(XV)(December 15,1960)
i®Supra note.
i^Indonesian NewsSpecialIssue Synopsisofeventsin EastTimor, Embassyof
the Republic ofIndonesia,Vol19,No21,December5,1991.
governmentofEastTimor',20 provided thatin the capital city only,
representatives would be elected on the principle ofone mem one vote,
while-elsewhere,they were to be chosen in accordance with the tradition
and identity ofthe people ofEastTimor,whatever that may have meant.
Onlyfive ofthe37 members were elected,as was acknowledged atthe
time by Domingos Olivera,spokesman oftheso-called'Provisional
Govemment'21,theremainder havingbeen selected by Indonesian
intelligence officers,advised bylocal quislingsfrom Apodeti,the party of
integration.22The official accountofthe process maintains that27
members were elected,butthis ofcourse would have been impossible,
since atthe time,Fretilin controlled 80%ofthe territory.It may also be
noted thatin 1977,no election was held in EastTimor,when the general
elections were held in Indonesia,
Indonesian spokesmen always add thatthesession'wasattended by
membersofthe diplomaticcorpsand representativesofthe nationaland
international media'^.Thejournalists who did attend,even the
correspondentoftheIndonesian weekly Tempo,^ all reported that they
had no opportunity ofspeakingto the members ofthe Assembly,or of
otherwise checkingthe authenticity ofthe proceedings.They were in Dili
for only 3hours,cmd were noteven allowed to see the'governor',the
notorious Guilherme Gongalves.
Recently Brigadier Theo Syafei,the present military commander of
Kolakops,thespecial operationalcommand for EastTimor,admitted that
'in theperiodfrom 1975to 1977-78,territorialoperations werefocused on
seizingcontrolofthe districtandsub-districttownsfrom Fretilin's
stranglehold'^ He thusgavethelie to all previous versions ofevents,
which asserted thatTimoreseforces had defeated Fretilin with help only
from Indonesian volunteers and thatthe process wascomplete by the end
of1975.26BrigadierSyafeioughtto know;he was one ofthe 10,000
Indonesian troops who attacked Dili on December 7,1975..
By nostretch oftheimagination could itbe cleiimed thatthe people of
EastTimor had'attained an advancedstage ofself-government withfree
26jillJolifTe,Eastlimort Nationalismand Colonialism,UniversityofQueensland
Press,1978.
2iSue Ribbitt RofT,Timor'sAnschluss,Edwin Hellen Press,1992.
22JamesDunn,Timor:a peoplebetrayed,JacarandaPress,1983,at298.
26ArizalEfiendi,Head ofthePoliticalDepartment,EmbassyofIndonesia in the UK,
Give peaceand developmentachance,presented atthe seminar ofEastTimor in
the 1990s,SchoolofOrientaland AfricanStudies,UniversityofLondon,March 11,1992.
2^empo,June 12,1976.
26Eadaulatan Ral^at,Jogjakarta,January26,1993..
26EastTimor:buildingforthefuture;DepartmentofForeign Affairs,Republicof
Indonesia,July1992,pxiv.'December7,1976:Diliisretakenfrom Fretilinforces,and
10dayslaterProvisionalGovernmentofEastTimorisproclaimed.Four monthsof
bloodshed are ended'.
politicalinstitutions', and theIndonesians never refer to this partof
Resolution 1641.2'Prom theIndonesian invasion,on December 7,1975,a
bloody war had been raging between the heavily armed Javemese and the
resistanceforces,resultingin tensofthousands ofdeaths and even larger
numbers ofipjuries.An estimated 100,000 people were massacred by the
Indonesian forces in the yearfollowingthe invasion,according to
Indonesian church sources,^® and there was absolutely noscopefor
institutions ofany kind to be developed atthattimein the 15% ofthe
territory already under occupation.
The UN General Assembly firstconsidered the invasion on December 12,
1975,whenit'strongly deplored'Indonesia's military action,called for
Jakarta's armed forces to be withdrawn,and reaffirmed the people's right
to self-determination smd independence.^^In this Resolution,the General
Assembly also referred specifically to Article2paragraph4ofthe United
Nations Charter,which provides that:
MlMembersshallrefrain in theirinternational relationsfrom the threat
or useofforce againstthe territorial integrityorpoliticalindependenjce of
anyState,orin anyothermannerinconsistent with thePurposesofthe
United Nations.
TheSecurity Council was asked to act,and passed a Resolution^o which
^ain upheld'theinalienable rightofthe peopletoself-determination and
independence'.They called on Indonesia to withdraw all itsforcesfrom
theterritory,while notexplicitly condemningtheinvasion as'anactof
aggressionforbidden bythe United Nations Charterandcustomarylaw'.^^
It may well be thatiftheinternationalcommunity had taken a more
robuststand againstthe occupation,other breaches ofArticle2ofthe
Charter,includingtheTurkish occupation ofnorthern Cyprusand
Saddam Hussein'sinvasion ofKuwait mighthave been deterred.
Exemplary punishmentofIndonesia for her violation ofinternationallaw
would havebeen a usefulinsurance policy,and itis worth notingthat
thereis no distinction in international law between the cases ofKuwait
and EastTimor,as has been acknowledged by Ministers atthe UK
Foreign Office.32
2'Supra
Arnold Kohenand John Taylor,An actofGenocide:Indonesia'sInvasionofEast
Timor,TAPOL,1979,at70.
29GeneralAssemblyResolution3485(XXX)(December 12,1975).
30United NationsSCRes384 (December22,1975).
®lRoger8Clark,The"decolonisation"ofEastTimorand theUnited Nations
normsonself-determination and aggression,(1980)7YaleJournalofWorld Public
Order,[2-44]at11.
32TristanGarel-Jones MP,unpublished letter.ParliamentaryHumanRightsGroup,
April5,1991.'/slwuldliketocorrectanymisapprehensionthatmayhavearisenthatwe
drew alegaldistinction betweentheinvasionofEastTimorandtheinvasionofKuwait,
i.'
i;-
>■: ■
I.•
t.
The political situations ofIndonesia in 1975 and Iraq in 1991 were,
however,very different.Indonesia had the tacitapproval ofAustralia and
the United States for the infamous attack ofDecember 7,1975,and she
was able to counton the unwaveringsupportofJapan,whose primary
interestwas the stability ofthe region.The ASEAN states,also,were
more interested in keepingon good terms with the major regional power
than upholdinginternational law.Indiasaw the annexation ofEastTimor
as beingsimilar to herown earlier occupation ofGoa,and opposed
demands for Indonesia's withdrawal.Indonesia's diplomats lobbied
incessantly in the non-aligned movement,ofwhich she had always been a
leader,and among the industrialised states ofthe west,which were eager
to competefor Jakarta's huge arms contracts.So after one further
Resolutions^ in April 1976,which repeated the demand for Indonesia's
forces to be withdrawn and called upon all states to respect EastTimor's
right to self-determination in accordance with General Assembly
Resolution 1514,^ the Security Council fell silent.
The General Assembly returned to the question ofEastTimor in
December 1976,when itstrongly deplored Indonesia's persistentrefusal
to comply with its earlier Resolutions on thesubject^®.In 1977,however,it
contented itselfwith reaffirming its previous Resolutions, without
repeating the demand for Indonesian forces to withdraw in the textofthe
Resolution®® By 1978,the General Assembly contented itselfwith
'recalling'the earlier Resolutions, while reaffirming only'the inalienable
right ofthe people ofEastTimor to self-determination'.®'Ofcourse,that
rightcould only be genuinely exercised ifthe Indonesians did withdraw,
butleaving out the words seemed to indicate thatthe United Nations
would be prepared to accepta formula which would allow the Indonesians
to re-run the exercise ofMay 31,1976 with better stage management.
The majoritiesfor General Assembly Resolutions on EastTimor were
gradually narrowing,and when,in 1982,they finally pigeon holed the
problem for the nextten years by passing it to the Secretary-General,®®
the vote was50 to 46.Indonesian propaganda had been effective over the
years,and although there was plenty ofevidence to show thatthe people
ofEastTimor were as implacably resistant to Javanese'colonial and alien
domination'as ever, most member states would be delighted to abandon
them ifthey could find some halfdecent way ofgetting the matter offthe
agenda ofthe General Assembly and the Fourth Committee.Australia's
becauseEast Timor wasa colonyand Kuwait is a sovereign state. We drew nosuch
distinction.
®®Uiiited NationsSC Res389(April22,1976).
®^Supra
®®United Nations G A Res31/53ofDecember 1,1976
®®United Nations G A Res32/34 ofNovember28,1977.
®'United Nations G A Res33/39ofDecember 13,1978.
®®United NationsG A Res37/30ofNovember 23,1982.
Prime Minister Bob Hawkefinally recognised Indonesia'ssovereignty over
EastTimor on August18,1985,30 wanting to geton with the negotiations
on exploitation oftheseabed resources between Australia and EastTimor.
The British aresellingJakarta$1.5 billion worth ofHawk military
aircraft,as well as other military equipment.^"The United States adopts
the illogical position thatit'acceptsIndonesia'sincorporation ofEast
Timor withoutmaintainingthata valid actofself-determination has
takenplace' Non Aligned Movementheld its meetingin Indonesia in
September 1992.Cultural ties are promoted with Islamic coimtries,from
Egyptatone end ofthe religiousspectrum toIran atthe other.''^
Yetthe question ofEastTimorstubbornly refuses to go away.The Timor
Gap Treaty*3is beingchallenged by Portugal in theInternational Court,
where itis being argued thatthe Treaty is inconsistent with international
law and thereforeinvalid.EastTimorreturned again to the world's
headlines when Timorese demonstrated for self-determination at a mass
celebrated by thePope on a visitto Dili on October 12,1989;when
students whospoke to the USAmbassador to Jakarta,on a visit to Dili,
wereseverely beaten and arrested,and when over 180 peaceful
demonstrators were killed byIndonesian troops atthe Santa Cruz
cemetery,Dili,on November 12,1991"".Itcomes up regularly in the
Congress ofthe United States and in the Japanese,Canadian and UK
Parliaments.Itis debated every yearin the UN Decolonisation
Committee.Parliamentarians for EastTimor have several himdred
Membersinsome 15countries,and in March 1991senta deputation from
Japan,Holland,Portugal,AustreJia and UK to see the former UN
Secretary-General,Sr Xavier Perez de Cuellarin New York.The present
Secretary-Generalisstill charged with the duty ofinitiating
'consultations with allpartiesdirectlyconcerned,with a view to exploring
avenuesforachievingacomprehensivesettlementoftheproblem AsSr
Perezde Cuellarconfirmed atthe meeting with PET^e,this can only be
within theframework ofthe Security Covmcil resolutions of1975 and
1976,47 and the eightGeneralAssembly Resolutions of1975 to 1982,48
which called on theIndonesians to withdraw their armed forces,so thata
genuine actofself-determination could be held.
30TheAustralian,August23,1985.
4®TAP0L,Bulletin No 115,February 1993.
4iRonald E Woods,Minister,USEmbas^in London,unpublished letter,
Parliamentaiy Human Rights Group,Februaiy 19,1992
43lndonesian News,Embas^ofthe RepublicofIndonesia,Vol20,No32.
43TreatybetweenAustraliaand the RepublicofIndonesia on thezone ofcooperation in
an area between theIndonesian ProvinceofEastTimor and northern Australia,
December 11,1989.
44Hearingon EastTimor:theSsmta Cruzmassacre,Parliamentary Human Rights
Group,December 1991.
45 United NationsGA Res37/30,November1982.
45Parliamentariansfor EastTimor,Occasionalnewsletter,April 1991.
47Supra
48Supra
8
The problem ofEastTimoris notwhetherthe people were entitled to the
rightofself-determination,or whetherth^ have exercised it.They had
the right,by universal agreement,and they were manifestly robbed ofit
by Indonesian aggression,asthe UN Security Council and General
Assembly both ruled.Thelapseoftimesince the occupation cannotin any
way diminish the right)norcan the violation ofthe Charter by Indonesia
be purged,however longthe occupation ofEastTimor may last.The
difficulty arisesfrom thefailureofthe United Nations to make the right
justiciable,ortoimpose any penalties on those who violate it,except
where theSecurity Councilso decides.
There can be no doubtbutthattherightofself-determination is the most
importantofall humsuirights,and this was the reason why it was placed
firstin both the Covenants.Ithasbeen truly said that
'...the effectiveexercise ofapeople's righttoself-determination isan
essentialcondition...forthegenuine existenceofthe other human rights
andfreedoms'.
Thelack ofany mechanism for assertion ofthe right means thatlarge and
powerfulstatescan floutit with relative impunity.The United Nations
have often reaffirmed'the legitimacy ofthestruggle ofpeoplesfor
independence...and liberationfrom colonialandforeign domination by all
available means,particularlyarmedstruggle.^Smsdloppressed peoples,
knowing there is no authoritative tribunal within the UN system,to
which they can appealfor helpin upholdingtheir rightto self-
determination, have no alternative butto resort to armed struggle,
howeverimequed the odds may be.Thislacuna in the system thus
encourages conflict,frustrating the central purpose ofthe United Nations.
The people ofEastTimor have nojetbombers or tanks.They have no
powerful alliesin the United Nations,no big trade deals to offer their
friends.Butthey do offer the international community somethingfar more
important:the opportunity ofupholding a principle they themselves
declared,which is today morethan ever essential to the peace and
stability ofthe whole world.The new world order,thatgrossly overworked
phrase,mustbe asystem in which peoples are liberated from local
imperialism,justas over the last50years,almost all the former
dependencies ofEuropean powers have been freed from saltsea
imperialism.Itis time,atlasttofulfil the dream ofa greatAmerican
prophet:
^^HectorGrosEspiellTherighttoself-determination:implementation ofUnited
Nations Resolutions;United Nations,New York,1970,para 59.
^^GeneralAssembly Resolution 33/24,November29,1978.
'/.*••-'• ^ ..'*, Jr. J<.V rcalLrfifit^'fjafU'lLJi^<'i
Nationalaspirations mustbe respected,peoples may now bedominated
and governed only bytheirconsent.Self-determination is nota mere
phrase.Itisanimperativeprincipleofaction, which statesmen will
henceforth ignore attheirperil.
I.
I.*
®^Woodrow Wilson,Messageto Congress,February 11,1918.
10

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A Positive Legal Duty: The Liberation of the People of East Timor

  • 1. o|-'Cord.s APOSITIVE LEGAL DUTY: THE LIBERATION OF THE PEOPLE OFEAST TIMOR EricAvebuiy Chairman,ParliamentaryHuman Rights Group UK A papergiven atthe Martin Ennals MemorialSymposium,Universityof Saskatoon,March6,1993 ...all States havea positivelegaldutytorespect,promoteand assistthe exerciseoftherightofaU peoplestoself-determination, and a negativedutytorefrainfromanymeasureswhichdeprive peoples ofthatright. Hector Gros Espiell,Special RapporteuroftheSub-Commission on Prevention ofDiscrimination andProtection ofMinorities,TheRightto Self-Determination:Implementation ofUnited NationsResolutions, United Nations,New York,1980
  • 2. The case ofEast Timor is one ofimfinished decolonisation.The United Nations have declared the nineties as the decade for completion ofthe process begun atthe end ofthe second world war,for dismantling the empires ruled from Europe,and EastTimoris one ofa dwindling number ofterritories still imderconsideration by the UN Committee on Decolonisation.Itwas,and is still dejure,a colony ofPortugal, whose adventurers first arrived there as early as 1513.It had been a sleepy backwater ofthe Portuguese empire,where very little development had taken place,as Indonesian propagandists are fond ofreminding us. Noteven the firststeps had been taken towardsself-government under the Salazar or Caetano dictatorships,although the Portuguese authorities had been quite happy to leave the local aristocracy to administer the rural areas.Only after the Portuguese revolution ofApril25,1974 was the future political status ofthe territory a matter ofdebate,both internally, and amongtheforeign powersimmediately concerned:the US,Portugal, Indonesia and Australia.Mr Gough Whitlam,then Prime Minister of Australia,held informal talks with PresidentSuharto in Jakarta at the beginning ofSeptember 1974,at which there was a consensus that annexation to Indonesia was the bestsolution.A spokesman for the Australian DepartmentofForeign Affairs said thatan independent East Timor*would notbe capable ofsurviving as a state and would be a potential threatto the region'.The Foreign Ministers ofPortugal and Indonesia metin New York,reiterating theirintention to letthe people decidefreely on theirfuture,butthe Mayor ofDili protested atthe talks when hesaid on September26 thatpeople objected to having their future decided by outsiders.^ Meanwhile,preliminary moves were made towards a more democratic system ofadministration.Three political parties were formed:Democratic Union ofTimor(UDT),which stood for continued association with Portugal;Revolutionary Frontfor Independence ofEastTimor(Fretilin), the party ofindependence,and Apodeti,which favoured integration with Indonesia.In March 1975,free elections were held for the first and only time in a number ofregions(concelhos)ofEastTimor,for several hundred village chiefs(suco liurai),and outofall the successful candidates,only one was asupporter ofApodeti.2Theelections were notfoughton party lines,butone authority^ claims that90% ofthe victors were Fretilin supporters,while the Portuguese officialin charge ofthe process. Major ^Keesing's ContemporaryArcliives,January6-12,1975,26908 2jose RamosHorta,Funu,the unfinished saga ofEastTimor,The Red Sea Press, Trenton,New Jersey,January 1987 ^Hill,H M;Fretilin:the Origins,Ideologies and Strategiesofa Nationalist Movementin EastTimor,M A Thesis,Monash University,Melbourne,1978.
  • 3. Jonatas,said that when all the results were in,there wasa balance between UDT and Fretilin.'* AsJose RamosHorta wrote,Apodeti,theAssociacaoPopularDemocratico Timorense never had any popular appeal and was anythingbut democratic.® TheIndonesianssucceeded in winningover one ortwo ofthe local chiefs to Apodeti,notably one Guilherme Gongalves,a tyrantwho had eiyoyed the protection ofthe notoriousFIDE,thePortuguesesecret police under the dictatorship.Butitbecame clear even to Jakarta that Apodeti only had a handful ofsupporters,under aleader whose main distinction wasthat he was the only Timorese to haveserved asentence for war crimes.Jakarta turned its attention to the UDT,bribingFrancisco Lopezda Cruz whobecame leader ofthe party and Augustine Mouzinho the Dili mayor already mentioned,the party vice-chairman.Colonel Sugianto,an agentofthe army'sintelligenceservice,BAKIN,played on their fear thatEastTimor could becomeisolated because ofFretilin's alleged extreme left posture,a line which had also been used to effect with the anti-communistpowers.Thesetwo wereinveigled toJakartain May 1975 and when they returned,Lopez da Cruzinitiated movesthatled to the rupture ofthe coalition with Fretilin thathad beensigned in January 1975.6 Then onAugust13,the UDTstaged acoup,launching abriefcivil war and promptingthe withdrawal ofthePortuguese Governor,LemosPires, and hisstaffto theisland ofAtaurooffthecoast,from which they never returned.By theend ofthe month,Fretilin had gained adecisive victory, and the territory was defactoindependentfrom the beginning of Septemberonwards.The Fretilinleaders acknowledged Portugal's sovereignty,however,and on September 16,they called on thegovernor, LemosPires,tocomeback and resume the decolonisation process."^Jim Dunn,theformerAustralian Consulin Dili, wenttoAtauro on about October 18 and urged LemosPires to meetthe Fretilin leaders,butthe governor was hesitant,having had no properinstructionsfrom Lisbon.In the end hedid agree to a meeting,providedit was held on aPortuguese corvettein Dili harbour.The Fretilin leaders accepted this proposal,with Jim Dimn offering himselfas a hostage to counter theirfear thatonce on board,LemosPires would have them arrested,butwhenJim returned to Ataurofor thesecond timeon aboutOctober23,thegovernor had leftfor Darwin,where he wastalking to emissariesfrom Lisbon.With nofurther '*Quoted inJohnGTaylor,Indonesia'sForgotten War,Zed Books,London,1991,at 45. 6lbid,p32. 6lbid,p52. '^JamesDunn, Timor:a people betrayed,Jacaranda Press,1983. i'l
  • 4. word from Portugal,the Timorese became convinced thatthey had to go it alone.® Meanwhile,Indonesia had already infiltrated troops into the territory clandestinely.The CIA reported on September4thaton the previous day, two Indonesian special forces units,each ofsome 100 men,had entered EastTimor,and a third group consisting ofthree platoons had arrived in the Bobonaro-Atsabe area in mid-September.The object was to link up with Timorese under the control ofTomas Gongalves,son of the Apodeti princeling Guilherme.According to Jose Martins,acollaborator who defected in 1976,the Indonesians had given military training to Tomas and halfa dozen other Timorese,and then established a training camp at Atambua,in Indonesian Timor."On October 7,the Indonesians mounted an assaulton Batugade,and on October 16 they attacked Balibo, where they murdered5 newsmen in cold blood,to stop them reporting the aggression. All this time,Jakarta was pretending to the outside world thatany military operations in the territory were a continuation ofthe civil war, and they were determined to preventthe lie from being exposed.In fact, however,the British,American and Australian Governments knew perfectly well whatwas happening and had given Jakarta thegreen light. The British Ambassador Sir John Archibald Ford advised Whitehall that it was'in Britain'sinterestthatIndonesia should absorb the territoryas soon and as unobtrusivelyaspossible', as ifthe600,000 people ofEast Timor constituted a mere stain on the carpet,to be mopped up with a bit ofcotton wool. The CIA had been monitoring the situation closely, and Henry Kissinger, who was visiting Indonesia with PresidentGerald Ford on December6,the day before the full scale assaulton Dili,the capital, told the Jakarta press that'the US understands Indonesia's position on the Timor question'.^i Before the full scale invasion, the UN General Assembly had already been considering a Resolution sponsored by Indonesia and others,calling on all states 'to respectthe inalienable rightofthe people ofEast Timor to self- determination,freedom and independence'^'^.This weis ofgreat importance,because itshowed thatnota single memberstate ofthe United Nations,includingIndonesia herself, dissented from the proposition thatthe people ofEastTimor were entitled to the rights conferred on them by the Declaration on the Granting ofIndependence to ®JamesDunn,unpublished communication,Parliamentary Human Rights Group, London,1993. "Jose Martins,Affidavitsubmitted to the UN Secretary-General,March 1976. ^"Dale vanAtta and Brian Toohey,TheTimorPapers,part1,NationalTimesof Australia,May 30-Jun 5,1982. 'iJbid ^^Decolonisation No7;Issueon EastTimor,UN DepartmentofPoliticalAffairs, Trusteeshipand Decolonisation,August 1976.
  • 5. Colonial Countries and Peoples, an(jby the International Covenants on Civil and Political, and on EconomicSocial and Cultural Rights."'Article 1 ofeach ofthe Covenants provides that: Mlpeoples have the rightofself-determination.By virtue ofthat right they freely determine theirpoliticalstatusandfreelypursue their economic socialand cultural development.'^^ Indonesia,havingrestated this rightfor the people ofEastTimor in the draft Resolution,had to stage an event which could be presented as an act ofself-determination,though itwas impossible for the occupyingforces to comply with the provisions ofUN General Assembly Resolution 1541 of 1960.1' ThatResolution was very specific on the criteria thathad to be satisfied beforeintegration ofan erstwhile dependentterritory with a sovereign state could be approved.PrincipleIX of1541 provides that: Integrationshould have comeaboutin thefollowingcircumstances: (a)The integratingterritory should have attained an advanced stage of self-government withfreepoliticalinstitutions,so thatitspeoples would have the capacity to make a responsible choice through informed and democraticprocesses; (b)The integrationshould be the resultofthefreely expressed wishes ofthe territory'speoples acting with fill knowledgeofthe change in their status, their wishes having been expressed through informed and democratic processes,impartiallyconducted and based on universal adultsuffrage. The United Nationscould, when itdeemsit necessary,supervise these processes.1® The eventthatwasstage managed by Jakarta in an attemptto satisfy these requirements was an open session ofthe'Regional Popular Assembly'in EastTimor,which resolved on May 31,1976,to ask the GovernmentofIndonesiafor integration.According to an official account this Assembly was'elected'and'composed representativesfrom all districts in East Timor'^^,butthelaw passed by the'Deliberative Council ofEast Timor',ashadowy body which had beenformed by the Indonesian occupation forces on December 18,1975,atthesame time as the Foreign Minister Adam Malik announced the establishmentofa'provisional 1® United Nations,GA Res.1514(XV),December 14,1960. United NationsTreaty Series,vol993:3. United Nations Treaty Series,vol999:171 ^®Article 1,InternationalCovenanton Civiland Political Rights,December 16, 1966. United NationsG A Res.1541(XV)(December 15,1960) i®Supra note. i^Indonesian NewsSpecialIssue Synopsisofeventsin EastTimor, Embassyof the Republic ofIndonesia,Vol19,No21,December5,1991.
  • 6. governmentofEastTimor',20 provided thatin the capital city only, representatives would be elected on the principle ofone mem one vote, while-elsewhere,they were to be chosen in accordance with the tradition and identity ofthe people ofEastTimor,whatever that may have meant. Onlyfive ofthe37 members were elected,as was acknowledged atthe time by Domingos Olivera,spokesman oftheso-called'Provisional Govemment'21,theremainder havingbeen selected by Indonesian intelligence officers,advised bylocal quislingsfrom Apodeti,the party of integration.22The official accountofthe process maintains that27 members were elected,butthis ofcourse would have been impossible, since atthe time,Fretilin controlled 80%ofthe territory.It may also be noted thatin 1977,no election was held in EastTimor,when the general elections were held in Indonesia, Indonesian spokesmen always add thatthesession'wasattended by membersofthe diplomaticcorpsand representativesofthe nationaland international media'^.Thejournalists who did attend,even the correspondentoftheIndonesian weekly Tempo,^ all reported that they had no opportunity ofspeakingto the members ofthe Assembly,or of otherwise checkingthe authenticity ofthe proceedings.They were in Dili for only 3hours,cmd were noteven allowed to see the'governor',the notorious Guilherme Gongalves. Recently Brigadier Theo Syafei,the present military commander of Kolakops,thespecial operationalcommand for EastTimor,admitted that 'in theperiodfrom 1975to 1977-78,territorialoperations werefocused on seizingcontrolofthe districtandsub-districttownsfrom Fretilin's stranglehold'^ He thusgavethelie to all previous versions ofevents, which asserted thatTimoreseforces had defeated Fretilin with help only from Indonesian volunteers and thatthe process wascomplete by the end of1975.26BrigadierSyafeioughtto know;he was one ofthe 10,000 Indonesian troops who attacked Dili on December 7,1975.. By nostretch oftheimagination could itbe cleiimed thatthe people of EastTimor had'attained an advancedstage ofself-government withfree 26jillJolifTe,Eastlimort Nationalismand Colonialism,UniversityofQueensland Press,1978. 2iSue Ribbitt RofT,Timor'sAnschluss,Edwin Hellen Press,1992. 22JamesDunn,Timor:a peoplebetrayed,JacarandaPress,1983,at298. 26ArizalEfiendi,Head ofthePoliticalDepartment,EmbassyofIndonesia in the UK, Give peaceand developmentachance,presented atthe seminar ofEastTimor in the 1990s,SchoolofOrientaland AfricanStudies,UniversityofLondon,March 11,1992. 2^empo,June 12,1976. 26Eadaulatan Ral^at,Jogjakarta,January26,1993.. 26EastTimor:buildingforthefuture;DepartmentofForeign Affairs,Republicof Indonesia,July1992,pxiv.'December7,1976:Diliisretakenfrom Fretilinforces,and 10dayslaterProvisionalGovernmentofEastTimorisproclaimed.Four monthsof bloodshed are ended'.
  • 7. politicalinstitutions', and theIndonesians never refer to this partof Resolution 1641.2'Prom theIndonesian invasion,on December 7,1975,a bloody war had been raging between the heavily armed Javemese and the resistanceforces,resultingin tensofthousands ofdeaths and even larger numbers ofipjuries.An estimated 100,000 people were massacred by the Indonesian forces in the yearfollowingthe invasion,according to Indonesian church sources,^® and there was absolutely noscopefor institutions ofany kind to be developed atthattimein the 15% ofthe territory already under occupation. The UN General Assembly firstconsidered the invasion on December 12, 1975,whenit'strongly deplored'Indonesia's military action,called for Jakarta's armed forces to be withdrawn,and reaffirmed the people's right to self-determination smd independence.^^In this Resolution,the General Assembly also referred specifically to Article2paragraph4ofthe United Nations Charter,which provides that: MlMembersshallrefrain in theirinternational relationsfrom the threat or useofforce againstthe territorial integrityorpoliticalindependenjce of anyState,orin anyothermannerinconsistent with thePurposesofthe United Nations. TheSecurity Council was asked to act,and passed a Resolution^o which ^ain upheld'theinalienable rightofthe peopletoself-determination and independence'.They called on Indonesia to withdraw all itsforcesfrom theterritory,while notexplicitly condemningtheinvasion as'anactof aggressionforbidden bythe United Nations Charterandcustomarylaw'.^^ It may well be thatiftheinternationalcommunity had taken a more robuststand againstthe occupation,other breaches ofArticle2ofthe Charter,includingtheTurkish occupation ofnorthern Cyprusand Saddam Hussein'sinvasion ofKuwait mighthave been deterred. Exemplary punishmentofIndonesia for her violation ofinternationallaw would havebeen a usefulinsurance policy,and itis worth notingthat thereis no distinction in international law between the cases ofKuwait and EastTimor,as has been acknowledged by Ministers atthe UK Foreign Office.32 2'Supra Arnold Kohenand John Taylor,An actofGenocide:Indonesia'sInvasionofEast Timor,TAPOL,1979,at70. 29GeneralAssemblyResolution3485(XXX)(December 12,1975). 30United NationsSCRes384 (December22,1975). ®lRoger8Clark,The"decolonisation"ofEastTimorand theUnited Nations normsonself-determination and aggression,(1980)7YaleJournalofWorld Public Order,[2-44]at11. 32TristanGarel-Jones MP,unpublished letter.ParliamentaryHumanRightsGroup, April5,1991.'/slwuldliketocorrectanymisapprehensionthatmayhavearisenthatwe drew alegaldistinction betweentheinvasionofEastTimorandtheinvasionofKuwait, i.' i;- >■: ■ I.• t.
  • 8. The political situations ofIndonesia in 1975 and Iraq in 1991 were, however,very different.Indonesia had the tacitapproval ofAustralia and the United States for the infamous attack ofDecember 7,1975,and she was able to counton the unwaveringsupportofJapan,whose primary interestwas the stability ofthe region.The ASEAN states,also,were more interested in keepingon good terms with the major regional power than upholdinginternational law.Indiasaw the annexation ofEastTimor as beingsimilar to herown earlier occupation ofGoa,and opposed demands for Indonesia's withdrawal.Indonesia's diplomats lobbied incessantly in the non-aligned movement,ofwhich she had always been a leader,and among the industrialised states ofthe west,which were eager to competefor Jakarta's huge arms contracts.So after one further Resolutions^ in April 1976,which repeated the demand for Indonesia's forces to be withdrawn and called upon all states to respect EastTimor's right to self-determination in accordance with General Assembly Resolution 1514,^ the Security Council fell silent. The General Assembly returned to the question ofEastTimor in December 1976,when itstrongly deplored Indonesia's persistentrefusal to comply with its earlier Resolutions on thesubject^®.In 1977,however,it contented itselfwith reaffirming its previous Resolutions, without repeating the demand for Indonesian forces to withdraw in the textofthe Resolution®® By 1978,the General Assembly contented itselfwith 'recalling'the earlier Resolutions, while reaffirming only'the inalienable right ofthe people ofEastTimor to self-determination'.®'Ofcourse,that rightcould only be genuinely exercised ifthe Indonesians did withdraw, butleaving out the words seemed to indicate thatthe United Nations would be prepared to accepta formula which would allow the Indonesians to re-run the exercise ofMay 31,1976 with better stage management. The majoritiesfor General Assembly Resolutions on EastTimor were gradually narrowing,and when,in 1982,they finally pigeon holed the problem for the nextten years by passing it to the Secretary-General,®® the vote was50 to 46.Indonesian propaganda had been effective over the years,and although there was plenty ofevidence to show thatthe people ofEastTimor were as implacably resistant to Javanese'colonial and alien domination'as ever, most member states would be delighted to abandon them ifthey could find some halfdecent way ofgetting the matter offthe agenda ofthe General Assembly and the Fourth Committee.Australia's becauseEast Timor wasa colonyand Kuwait is a sovereign state. We drew nosuch distinction. ®®Uiiited NationsSC Res389(April22,1976). ®^Supra ®®United Nations G A Res31/53ofDecember 1,1976 ®®United Nations G A Res32/34 ofNovember28,1977. ®'United Nations G A Res33/39ofDecember 13,1978. ®®United NationsG A Res37/30ofNovember 23,1982.
  • 9. Prime Minister Bob Hawkefinally recognised Indonesia'ssovereignty over EastTimor on August18,1985,30 wanting to geton with the negotiations on exploitation oftheseabed resources between Australia and EastTimor. The British aresellingJakarta$1.5 billion worth ofHawk military aircraft,as well as other military equipment.^"The United States adopts the illogical position thatit'acceptsIndonesia'sincorporation ofEast Timor withoutmaintainingthata valid actofself-determination has takenplace' Non Aligned Movementheld its meetingin Indonesia in September 1992.Cultural ties are promoted with Islamic coimtries,from Egyptatone end ofthe religiousspectrum toIran atthe other.''^ Yetthe question ofEastTimorstubbornly refuses to go away.The Timor Gap Treaty*3is beingchallenged by Portugal in theInternational Court, where itis being argued thatthe Treaty is inconsistent with international law and thereforeinvalid.EastTimorreturned again to the world's headlines when Timorese demonstrated for self-determination at a mass celebrated by thePope on a visitto Dili on October 12,1989;when students whospoke to the USAmbassador to Jakarta,on a visit to Dili, wereseverely beaten and arrested,and when over 180 peaceful demonstrators were killed byIndonesian troops atthe Santa Cruz cemetery,Dili,on November 12,1991"".Itcomes up regularly in the Congress ofthe United States and in the Japanese,Canadian and UK Parliaments.Itis debated every yearin the UN Decolonisation Committee.Parliamentarians for EastTimor have several himdred Membersinsome 15countries,and in March 1991senta deputation from Japan,Holland,Portugal,AustreJia and UK to see the former UN Secretary-General,Sr Xavier Perez de Cuellarin New York.The present Secretary-Generalisstill charged with the duty ofinitiating 'consultations with allpartiesdirectlyconcerned,with a view to exploring avenuesforachievingacomprehensivesettlementoftheproblem AsSr Perezde Cuellarconfirmed atthe meeting with PET^e,this can only be within theframework ofthe Security Covmcil resolutions of1975 and 1976,47 and the eightGeneralAssembly Resolutions of1975 to 1982,48 which called on theIndonesians to withdraw their armed forces,so thata genuine actofself-determination could be held. 30TheAustralian,August23,1985. 4®TAP0L,Bulletin No 115,February 1993. 4iRonald E Woods,Minister,USEmbas^in London,unpublished letter, Parliamentaiy Human Rights Group,Februaiy 19,1992 43lndonesian News,Embas^ofthe RepublicofIndonesia,Vol20,No32. 43TreatybetweenAustraliaand the RepublicofIndonesia on thezone ofcooperation in an area between theIndonesian ProvinceofEastTimor and northern Australia, December 11,1989. 44Hearingon EastTimor:theSsmta Cruzmassacre,Parliamentary Human Rights Group,December 1991. 45 United NationsGA Res37/30,November1982. 45Parliamentariansfor EastTimor,Occasionalnewsletter,April 1991. 47Supra 48Supra 8
  • 10. The problem ofEastTimoris notwhetherthe people were entitled to the rightofself-determination,or whetherth^ have exercised it.They had the right,by universal agreement,and they were manifestly robbed ofit by Indonesian aggression,asthe UN Security Council and General Assembly both ruled.Thelapseoftimesince the occupation cannotin any way diminish the right)norcan the violation ofthe Charter by Indonesia be purged,however longthe occupation ofEastTimor may last.The difficulty arisesfrom thefailureofthe United Nations to make the right justiciable,ortoimpose any penalties on those who violate it,except where theSecurity Councilso decides. There can be no doubtbutthattherightofself-determination is the most importantofall humsuirights,and this was the reason why it was placed firstin both the Covenants.Ithasbeen truly said that '...the effectiveexercise ofapeople's righttoself-determination isan essentialcondition...forthegenuine existenceofthe other human rights andfreedoms'. Thelack ofany mechanism for assertion ofthe right means thatlarge and powerfulstatescan floutit with relative impunity.The United Nations have often reaffirmed'the legitimacy ofthestruggle ofpeoplesfor independence...and liberationfrom colonialandforeign domination by all available means,particularlyarmedstruggle.^Smsdloppressed peoples, knowing there is no authoritative tribunal within the UN system,to which they can appealfor helpin upholdingtheir rightto self- determination, have no alternative butto resort to armed struggle, howeverimequed the odds may be.Thislacuna in the system thus encourages conflict,frustrating the central purpose ofthe United Nations. The people ofEastTimor have nojetbombers or tanks.They have no powerful alliesin the United Nations,no big trade deals to offer their friends.Butthey do offer the international community somethingfar more important:the opportunity ofupholding a principle they themselves declared,which is today morethan ever essential to the peace and stability ofthe whole world.The new world order,thatgrossly overworked phrase,mustbe asystem in which peoples are liberated from local imperialism,justas over the last50years,almost all the former dependencies ofEuropean powers have been freed from saltsea imperialism.Itis time,atlasttofulfil the dream ofa greatAmerican prophet: ^^HectorGrosEspiellTherighttoself-determination:implementation ofUnited Nations Resolutions;United Nations,New York,1970,para 59. ^^GeneralAssembly Resolution 33/24,November29,1978.
  • 11. '/.*••-'• ^ ..'*, Jr. J<.V rcalLrfifit^'fjafU'lLJi^<'i Nationalaspirations mustbe respected,peoples may now bedominated and governed only bytheirconsent.Self-determination is nota mere phrase.Itisanimperativeprincipleofaction, which statesmen will henceforth ignore attheirperil. I. I.* ®^Woodrow Wilson,Messageto Congress,February 11,1918. 10