East Timor has been on the UN's agenda for longer that many other
trouble spots. It went onto the UN's decolonization agenda in 1960 when
the UN General Assembly included East Timor on its list of Portuguese
overseas territories about which Portugal was obliged to supply
information. Portugal was, at most, only a reluctant participant in this
process; it resented international discussion of its imperial affairs.
Following the 1975 Indonesian invasion, East Timor has appeared on
the agenda of several other UN bodies. For the purposes of this
publication, the most important body is the International Court of
Justice, which is dealt with separately.
The General Assembly
The UN General Assembly consists of all the UN member-states. It
meets for the last four months of each year in its ordinary session. It
adopts resolutions which are not binding on its members (except for
domestic UN matters).
The General Assembly's 1975 session coincided with the de facto
FRETILIN Government and the subsequent Indonesian invasion.
The General Assembly adopted Resolution 3485 [XXX] calling for the
withdrawal of Indonesian forces and recommended that urgent action be
taken by the UN Security Council to protect East Timor's territorial
integrity and the Timorese right of self-determination.
Indonesia ignored the resolution. Because General Assembly
resolutions, except for those pertaining to domestic UN business, are
not binding on any government, Indonesia was free to ignore it without
breaking its international obligations.
East Timor has languished on the UN General Assembly's agenda.
Between 1976 and 1982, the annual General Assembly sessions adopted
resolutions affirming the 1975 one. The majorities in favour of the
resolutions gradually declined but Indonesia could never quite muster
the numbers to knock East Timor off the General Assembly agenda.
For the past decade, East Timor has remained technically on the
annual agenda but no substantial resolution has been adopted - a
procedural device is used to carry it over to the next session.
Indonesia has never quite felt confident enough to bring a substantive
resolution to the vote to negate the 1975 resolution.
Rather like Portugal itself, the world's governments at the UN have
wavered between a luke warm interest in East Timor's fate and an
indifference to it. Indonesia has played with a diverse range of cards:
as a founder of the non-aligned movement it has worked with some Third
World countries to get East Timor off the agenda. It has also exploited
its relationships with the US, Japan and Australia for the same end.
However, other UN member-nations could not quite let go of East
Timor. The UN is sometimes the home of lame causes for which it cannot
bring itself to perform a "mercy killing". This reluctance to
perform mercy killings is, of course, sometimes vindicated by history.
One such lame cause was German South-West Africa, which South Africa
acquired after World War I under the League of Nations to administer as
a Mandate, and which then became a Trust Territory when the UN was
created in 1945. South Africa's administration was later revoked by the
UN but South Africa ignored it. Each year the General Assembly adopted
resolutions critical of South Africa's continued occupation. Each
resolution was ignored by south Africa, and the major western countries
did little to encourage South Africa to change its mind. It was another
lame cause that the UN could not quite bring itself to drop. However, by
the mid 1980s South Africa was spending US$1 billion per year fighting
the South-West African People's Organization and overseas investors in
south Africa were worried about the conflict's toll on the South African
economy. South Africa began to look for a way out of the conflict.
Events then moved rapidly. There was a UN-supervised act of
self-determination (in which the Australian Electoral Office played an
important role in handling the voting). Namibia, as an independent
country, joined the UN in April 1990.
Obviously the supporter of East Timorese independence hope that the
Namibia story will be a precedent for their own cause.
( See also more recent UN
General Assembly: Special Committee on the Situation with regard to the
Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples. East Timor Working Paper Prepared by the
Secretariat (1 June 1998) - full report)
The Security Council
The Security council deals with threats to international peace and
security, and it is ready to meet at any time day or night. The Security
Council has, under the UN Charter, far more power than the General
Assembly. Under the UN Charter, all member-nations pledge themselves to
follow Security Council resolutions (Article 25).
Portugal complained to the Security Council about the invasion of its
territory. The Security Council, on December 22 1975, adopted Resolution
384 [1975] calling for the withdrawal if Indonesia's forces. Indonesia
ignored that resolution.
The resolution also requested the UN Secretary General to sen a
representative for an on-the-spot assessment of what was happening. The
Security Council discussed his report in April 1976. It was dissatisfied
with Indonesian assurances that all was well, and so it again called for
the withdrawal of Indonesian forces (Resolution 389[1976]. Indonesia has
continued to ignore that instruction.
On July 17 1976, East Timor was proclaimed the twenty-seventh
province of Indonesia. The Indonesian Government informed the UN that
East Timor was now an "internal matter" and it was no longer
appropriate for the UN to consider it. (Article 2(7) of the UN Charter
says that the UN cannot intervene in matters which are essentially
within the domestic jurisdiction of any country).
But the UN has never recognized the integration of East Timor into
the Republic of Indonesia and it regards Portugal as the administering
authority.
See texts of UN Security
Council Resolutions
The Secretary General
The Secretary general has been conducting private negotiations
between Portugal and Indonesia (there are no East Timorese involved).
Little progress has been made since this work began in 1982.
The negotiations have been done as a belated consequence of the two
Security Council resolutions, and the fact that Indonesia has not been
able to get East Timor off the General Assembly's annual agenda. East
Timor lingers on the General Assembly's agenda, even though it has not
been subject to an explicit resolution since 1982. Therefore, the
Secretary-general is obliged to do something about East Timor. The most
recent round of these annual negotiations was held in New York in May
1995.
See page of latest initiatives
of Secretary General Mr. Kofi Annan
Human Rights Bodies
East Timor has also appeared on the agendas of other UN bodies, such
as the Commission on Human rights and it Sub-commission. Annual sessions
have been marked by Indonesian lobbying to get East Timor off their
agendas. Some years it has had the numbers to do so, and some years it
has not.
At present, the tide of international opinion is flowing against
Indonesia. This may be seen in three developments.
First, 1990 saw the end of the Cold War. The Cold War was the central
defining event of international relations between 1945 and 1990. All
foreign policy matters were viewed in the context of where a country
stood vis-a-vis the US and USSR. The two super powers and their
immediate allies used to overlook human rights violations if committed
by their own friends, and instead concentrated on the violations
committed by their opponents. Many Third World countries also had their
own policies of selective indignation. Indonesia had a good hand of
cards: links with both the Third World and the First World (via the US).
The end of the Cold War has changed international relations. The US
can no longer use the larger dangers posed by the USSR as an excuse for
overlooking human rights violations committed by US allies. In short:
there may be a new era whereby human rights violations are examined on
their own merits and not through the prism of the higher politics of the
Cold War. Indonesia is no longer seen as a bulwark against communism,
and so the US may be more critical of its human rights policies.
The second development took place in august 1990: Iraq's invasion of
Kuwait. Countries such as the US and Australia, which had long ago
ceased criticizing Indonesia's invasion of East Timor, were suddenly
enraged by Iraq's invasion. As the Australian Prime Minister (Bob Hawke)
said at the time of the Iraqi invasion:
"Big countries cannot invade little countries and get away with
it." (Quoted in Australian Council for Overseas Aid book, East
Timor: Towards a Just Peace in the 1990s, Canberra 1990, p1)
The international community's opposition to the Iraqi invasion meant
that Indonesia had no chance of resisting East Timor's continuation on
the 1990 UN General Assembly agenda. countries were unwilling (no matter
how sympathetic they may be to Indonesia) blatantly to overlook East
Timor while expressing anger over Kuwait.
The third development occurred on November 12, 1991, when Indonesian
forces shot into a crowd of people at the Santa Cruz cemetery in East
Timor's capital of Dili. A memorial mass had been held for Sebastiao
Gomes, a youth shot dead by troops in an incident on October 28, and
this mass was followed by a pro-independence demonstration. Just what
happened and how many mourners were killed remain unclear.
This was East Timor's "Sharpeville". Other massacres had
taken place since 1975 but this was East Timor's first televised one. In
this television-oriented age, an event does not take place if there is
no camera to film it. East Timor had been neglected by the major media
outlets (those based in the US and UK) between 1975 and 1989: it was not
important for US and UK financial interests, its inhabitants do not
speak English, and Indonesia had had to close it off from the world
while it conducted its military operations.
East Timor started to become more visible in October 1989, with the
visit of the Pope. Indonesia is the world's most populous Moslem nation
and Catholics constitute only 3 per cent of the population. All papal
trips attract considerable media attention, and each papal word and
gesture is subject to close scrutiny. He visited Dili but did not kiss
the ground (a gesture reserved for visiting independent countries - and
he evidently regarded East Timor as part of another country). As The New
York Times journalist reported, he was careful not to offend the
Indonesian Government:
"Pope John Paul II wound up a long trek across Indonesia today,
telling Roman Catholic bishops to speak out against human rights abuses
but trying to reassure the Government that Catholics present no
threat." ("Pope, Ending Indonesia Visit, Issues Careful Plea
on Rights" The New York times, October 14 1989)
The Pope did nothing to encourage the East Timorese to continue to
resist the Indonesian invasion - but his mere presence in Dili obliged
the media to pay some attention to East Timor. the trip sensitized them
to East Timor.
There were foreign journalists back in Dili in November 1991. they
were sent to report on a long-awaited Portuguese Parliamentary Mission
(which in fact was cancelled a few days prior to the massacre). One of
the journalists (a New Zealand citizen) was killed in the Santa Cruz
massacre and an American journalist received a fractured skull
(ironically by a soldier using an American-made rifle). Journalists got
film and radio material back to the UK and US and then onto the
international networks.
The public relations aftermath of the massacre was badly handled by
the Indonesian Government. Previous East Timor massacres had come and
gone, and there had been little international reaction. the Government
expected the same this time. It misunderstood the impact created by the
film footage. the Government conveyed an impression of being haphazard
in finding out what had happened and in punishing those responsible. the
mourners who took part in the protest at the cemetery received harsher
prison sentences that did the soldiers who carried out the killings.
Taken together, these three developments mean that East Timor is
unlikely to disappear back into political obscurity. It may not become a
leading political crisis - but equally it will not return to be quite so
neglected as it has been. As the journalist Adam Schwarz has commented:
"The increasing attention paid around the world to the right of
self-determination and to human rights issues will ensure that East
Timor remains a drag on Indonesia's foreign policy profile. Much to
Jakarta's dismay, a resolution passed by the UN Human Rights Commission
in May 1993 censured Indonesia for its poor human rights record.
Surprisingly, support for the resolution came from the United States,
which for many years had voted in similar forums in support of
Indonesia. the newly installed Clinton administration, however, voted
for the censure resolution and its example was followed by 21 other
countries." (Adam Scharwz, A Nation in Waiting: Indonesia in the
1990s. Sydney: Allen and Unwin, 1994, p.223)
(ed. - In June 1997 the UN Commission on Human Rights passed
resolution 1997/63 consolidating its previous stance on East Timor and
Indonesia, and putting pressure on Indonesia to comply with its own
undertakings to the UN with regard to human rights in East Timor.
Further, this resolution sought to further efforts for a comprehensive
and internationally acceptable solution to the question of East Timor.)
See page on 1998 UNCHR report on
East Timor
The International Court of Justice
In February 1991, Portugal instituted proceedings at the
International Court of Justice (ICJ) against Australia in a dispute
concerning "certain activities of Australia with respect to East
Timor."
The ICJ is the UN's principal judicial organ. Its seat is at the
Peace Palace in The Hague, The Netherlands. It began work in 1946, when
it replaced the Permanent Court of International Justice. which had
functioned in the Peace Palace since 1922.
The ICJ has a dual role: to settle, in accordance with international
law, the legal disputes submitted to it by countries, and to give
advisory opinions on legal questions referred to it by UN bodies.
The ICJ is composed of 15 judges, elected to nine-year terms of
office by the UN General Assembly and Security Council sitting
independently of each other. It may not include more that one judge of
any nationality. Elections are held every three years for one-third of
the seats, and retiring judges may be re-elected. The members of the ICJ
do not represent their governments and are independent of political
influence.
The roots of the ICJ go back to an era - at the beginning of this
century - when visionaries believed that war could be outlawed and that
governments could settle disputes by using an international court.
See ICJ and the Timor Gap case
This vision is still a long way from reality.
First, many governments have been unwilling to accepts that the ICJ
has an automatic right to hear cases brought against them
("compulsory jurisdiction"). Only about 60 countries (about
one-third of the UN's membership) have accepted the ICJ's compulsory
jurisdiction. Ironically, many of the ICJ's judges come from countries
whose governments do not accept the ICJ's compulsory jurisdiction.
This is an example of the problem of national sovereignty:
governments cannot be forced into accepting international obligations
against their will. Thus, in the mid-1970s, for example, France said
that nuclear testing in the South Pacific was a matter of national
security and that it did not accept that the ICJ had the right to
interfere in its nuclear testing programme. It boycotted the ICJ case
brought by Australia, Fiji and New Zealand (although coincidentally it
stopped testing in the atmosphere).
Australia is one of the 60 recognizing the ICJ's compulsory
jurisdiction. But Indonesia has not accepted the ICJ's compulsory
jurisdiction and so Portugal is unable to take it to the ICJ.
Second, only nations can be parties to an ICJ case. This means that
only countries can bring a case and only countries can be defendants. In
Australia, for example, there are occasionally statements that
Aboriginal groups will take Australia to the ICJ; they cannot. Similarly
the East Timorese have no right - at present - to take a case to the
ICJ. Also, a country cannot take a non-nation-state entity to the ICJ
(such as an oil-drilling transnational corporation - although it could
try to take the country which has the TNC headquarters on its
territory).
Third, there is no international enforcement system. Once an ICJ
decision is made, there is no automatic "police force" to
follow it up. the matter could be referred to the UN Security Council
but here it would be vulnerable to the veto system of the five permanent
members.
Fourth, not every dispute may be suitable for the handling by a court
system. An example concerns the Suez Canal in the late 1950s, when Egypt
was refusing the canal to be used by ships trading with Israel; the US
was on good terms then with both Israel and Egypt, and urged both to
take the dispute to the ICJ. Both refused since the ICJ would give a
clear decision and neither side wanted to risk a clear judgment against
it (governments sometimes prefer a blurred result).
Finally, there are problems over the procedural aspects of the ICJ,
such as evidence. In the municipal legal systems, the lower courts deal
with facts (what actually happened?) and the higher (appellate) courts
deal with matters of interpretation of the law. The ICJ has to deal with
both. Compared with the evolution of some municipal legal systems which
have evolved over the centuries (such as England's), the ICJ system is
still new and unsophisticated.
ICJ judges area often appointed with an appellate court, academic or
government background, with an interest in treaty creation (which is
useful for appellate work). But they may have limited experience in the
work of lower courts in sifting the evidence.
there is an assumption that governments provide evidence honestly,
and so the ICJ sees its task as to weigh up the legal arguments of both
sides. But there is a risk that the evidence may be accidentally or
deliberately false. ICJ judges are drawn from all over the world and so
there may also be cultural differences in how the evidence is
interpreted.
To sum up, the ICJ is still a long way from what its architects hoped
for it. But, compared with only (say) a century ago, some progress is
being made in international law and international legal institutions.
By Dr. Keith
Suter
Copyright K. Suter, December 1995
Published by the East Timor Relief Association Inc.
December 1995 (in response to the ICJ case on the Timor Gap).
Dr. Keith Suter is President of the Centre for Peace
and Conflict Studies, University of Sydney (Australia), President of the
United Nations Association of Australia (NSW), President of the Society
for International development (Sydney Chapter), and Chairperson of the
Australian Branch of the Anti-Slavery Society.
Document compiled by Dr S D
Stein