Lao Hamutuk: The tenth anniversary of the referendum that ended 24 years of brutal, illegal Indonesian military occupation of Timor-Leste is an opportunity to assess where the country is now, reflecting on the past and looking to the future. La'o Hamutuk has written several background papers which assess progress over the last decade, look at the current situation, and suggest what still needs to be done.
How much money have international donors spent on and in Timor-Leste? Democracy in Timor-Leste: Information is required.
Security and defence issues from an Australian perspective.
Groups, gangs, and armed violence in Timor-Leste. Evidence of legal responsibility of any sort—governmental, corporate or individual—for such abuse is exposed in Sect.
In the main, its reservations and declarations to these treaties have been concerned with dispute resolution and self-determination and are designed to protect the territorial integrity of the whole of Indonesia. Neighbouring Philippines, for example, is a country that has accepted the individual complaints mechanisms under both the ICCPR in and CEDAW in , and has been the subject of complaints that not only highlight the human rights record of the government but put pressure on it to improve and reform its protection of human rights.
An overview of reports on Indonesia by the various treaty Committees shows significant concern and condemnation of the actions of Indonesian security forces and other issues relevant to this study. The Committee was particularly concerned at reports that the State party uses its security apparatus to punish political dissidents and human rights defenders.
In many cases, affected communities have not been afforded effective remedies and have, along with human rights defenders working on these cases, been subject to violence and persecution. Examining these reports it is relatively clear that Indonesia has a history of serious human rights abuse by its state security forces, police and military, some of which is due to the number of actual armed conflicts and separatist wars fought on its territory.
However, in more recent times, in the absence of armed conflict, such conduct can only be analysed in human rights terms as violations of rights to life, freedom from torture, and to basic socio-economic rights to food, water and shelter of individuals and groups who are not engaged in conflict against the state, 17 which state security forces have perpetrated or helped to perpetrate.
A partial explanation for this could be the close relationship enjoyed between state security forces and militia, such as Hansip and Wanra, which are regarded as being under the command and authority of state security forces. Again there is limited evidence in these reports of the involvement of private security actors, though the role of private companies is becoming more evident as the power of the state is gradually rolled back.
There remains much blurring, however, between public and private actors especially in the field of security. In liberal thought the public—private distinction relates to the spheres of public and private life, whereby the state should not interfere in the private realm. For example, in the UK, numerous functions that were traditionally performed by organs and employees of the state, such as the running of prisons, prisoner escort, and protection services, are outsourced to private companies.
Furthermore, in such states, there may be greater outsourcing and privatisation in some areas of public life such as security, than in others, such as health or education. Different speeds of outsourcing are reflective of what is achievable politically and ideologically, rather than what is legally or ethically acceptable. In effect outsourcing is a redrawing, or at least a blurring, of what constitute inherent state functions and, in areas in which outsourcing is deeply entrenched, the government is no longer in effective control of the conduct of private companies.
It also corresponds to an increase of corporate influence on some governments. Yet, despite these developments in key Western states, which have frequently been mimicked in developing countries, often with outright encouragement by Western states and global financial institutions, 30 the prevailing orthodox view of the public—private distinction as found in international law is very much based on the concept of a strong sovereign state, one that retains a firm grip, if not monopoly, on the use of force.
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Although such states clearly still exist, international legal doctrine has failed to adapt to the increasing variety of modern, post-modern, and also pre-modern states. Unsurprisingly, Western states continue to support the orthodox tests for state responsibility since they effectively allow them to outsource their responsibility as well as their functions. In contrast, when it comes to developing states, the story of when conduct is an act of state and when it is a private act follows a different path.
The embedded nature of the Westphalian concept of sovereignty signifies that its influence persists in core areas such as state responsibility, but this does not match the reality of developing countries. For developing states, like Indonesia, sovereignty is something that has to be continuously fought for and consolidated as the scope and depth of state control fluctuates, with state organs and non-state actors constantly redefining what is public and what is private.
It is not so much states giving up their monopoly on the use of force as with the US and UK, but instead developing states are attempting to assert their monopoly through a strong military and then failing to control that force. These rules are not well-suited to the turn of the century phenomenon of Western governments contracting out security functions to private actors, or governments of developing states being unwilling or unable to prevent state actors from undertaking essentially private acts.
Turning to examine the public—private distinction in an important developing state, Indonesia, the norm is not for private security to be operating under a government contract. The situation is that state agents military and police provide security services often for commercial gain to a business, or based on a business contract with a militia or private security firm. Applying the rules of state responsibility on attribution to Indonesian military and security forces, it is clear that they are agents of the state and, if they are violating human rights in the course of their operations, their violations should be considered as acts of state for which Indonesia is responsible.
Furthermore, even criminal activities engaged in by state security forces, including export smuggling, timber smuggling, illegal logging, illegal mining, extortion, racketeering in drugs, gambling and prostitution, 40 would be deemed acts of state if they are carried out by state agents purporting to act in that capacity. The fact that the Indonesian government has at various points, albeit with little enthusiasm, tried to prohibit, or limit, state security forces for private commercial activities, 41 does not prevent such actions continuing to be classified as acts of state.
The current complex arrangement of private security providers in Indonesia, include organized militia under state control, militia groups established by companies, independent militia groups employed by companies, local private security companies often established by retired security personnel , private military and security companies PMSCs , the TNI Indonesian military and Polri state police , especially Brimob the paramilitary special operations force.
It could be argued that the jurisprudence invoked by the ILC as justification for the rule, that ultra vires actions of state actors when acting in that capacity continue to be acts of state, is Western-biased as the rules were formulated by claims commissions set up in the early twentieth century to remediate Western individuals and businesses for violations of a claimed international minimum standard while operating in dangerous or violent parts of the globe.
Other soft law instruments recognize a more complex security picture. One is that, aside from the fact that Indonesia is not a participating state, the non-binding character of the VPSHR renders this instrument somewhat ineffective. Since the turn of the century there have been numerous reports of human rights violations against MNCs, like ExxonMobil, Freeport-McMoRan and Rio Tinto and their security providers, supporting the contention that incorporating the VPSHR into company policies and management systems is one thing while improving security practices on the ground is another.
Getting the government on board and improving communication with local communities might help. In the case of purely private military and security companies PMSCs , which are not hiding behind state authority or exercising governmental functions, it is unlikely that such operators will be acting on the instructions of the Indonesian government, or under its direction and control. Thus, there will be no direct engagement of Indonesian responsibility, except in cases where the security forces have hired groups of thugs to perpetrate violence or intimidation.
Such obligations could, for example, be extended to regulatory authorities responsible for plantation licences and oversight. The idea is that contracting states along with host states and, arguably, home states of PMSCs should fulfil positive obligations by licensing, monitoring and, where necessary, meting out punishment to reduce the number of human rights or humanitarian law violations by PMSCs they contract with; or who are based, or operate, within their jurisdictions.
Corporate and individual responsibility for PMSCs is to a large degree dependent on states taking their responsibilities seriously and controlling PMSCs in ways they failed to do for their predecessors e. Indonesia is not a participating state. The Montreux Document itself points to principles of international law mainly international humanitarian law applicable to home, host and contracting states of PMSCs.
It does little to deal with the problem of imputability to states of wrongful PMSC conduct as it adopts the narrow orthodox view of state responsibility identified above and makes it clear that contracting with PMSCs does not mean the state is responsible for their actions. In addition to its narrow focus on armed conflict, and its non-binding nature, the Montreux Document contains no mechanisms for supervision or enforcement, thereby further detracting from its overall effectiveness.
Although Indonesia has not signed up to the Montreux Document, it is under positive obligations derived from the human rights treaties to which it is a party. In its General Comment No. In this light it is possible to examine the laws and acts of the Indonesian government with regard to private security actors to see if there are any indications that it is taking positive measures to regulate private security providers. National regulations were introduced in in an effort to regulate private security in response to the increased number of private security providers following rising instability in the country.
The human rights jurisprudence discussed at the outset of this article provides very little mention of the problem of private security either by state actors acting in a private capacity, or by private security companies acting agents for the state , which is surprising given the evidence of such in Indonesia, especially a long history of state security forces effectively hiring themselves out to companies. It also evidences the extent of state capture, referred to above, in which state predominantly the military and corporate interests are entangled.
Similarly, no attention has been given to the emergence of local private security companies owned by ex-military officials such as PT Garuda Prima and the presence of international private security companies in Indonesia such as G4S , 68 as the demand for private security increased following the fall of Suharto and with rising instability in the region.
Misol, Lisa [WorldCat Identities]
Significantly, the separation of the military and police in removed the police from military control following the implementation of Decree TAP MPR No. However, the separation was not complete—Article 41 2 of the National Police Act left room for the military to assist the police and Article 7. Separating the two security institutions thus increased tensions between them and contributed to rising instability in the country.
Whereas the state had restricted private security companies under Suharto, ex-military officials took the opportunity in the reformasi era to establish local private security companies to meet increased demand for private security. Besides, the involvement of the military in private security is only really hinted at in the reports of the UN and treaty-based human rights bodies discussed at the outset of this article so the line between public and private security, and the human rights implications thereof, are not explored at all. This contrasts with the evidence that it is not just the Indonesian state that is slowly being demilitarized a process started in the reform period , but also the commercial sector especially after and the attempts to restrict military business ownership by virtue of TNI Law No.
As has been seen soft law international standards on security and human rights have not had any traction in Indonesia. Similar observations can be made in relation to soft law standards on business and human rights. Pillar I outlines the duty of states to establish binding rules to promote respect for human rights by non-state actors, including businesses, and identifies ways for states to discharge their duty more effectively.
Pillar II spells out the implications of the corporate responsibility to respect human rights. Guiding Principle 11 requires business entities to avoid infringing on the human rights of others and to address any adverse human rights impacts with which they are involved. This requirement even extends to third-party suppliers in their supply chains.
Pillar III affirms that states must ensure access to effective judicial remedy for human rights abuses and that business enterprises should establish or participate in effective grievance mechanisms for individuals and communities that may be adversely impacted. In order to disseminate and promote the implementation of the UNGPs, the Human Rights Council established the Working Group on the issue of human rights and transnational corporations and other business enterprises in June Various actors believe that the government should develop coherent legislation to ensure that both the government and companies fulfil their responsibilities under the UNGPs.
They hope that the NAP will provide the necessary impetus for further legislation at the presidential level to protect human rights from the negative impacts of business operations. As recognized by the embassy representative for the Netherlands, successful implementation of the UNGPs not only depends on the necessary government legislation but a change in corporate culture so that companies recognize the Guiding Principles as a moral concern rather than legal issue.
Further, it requires PMSCs to exercise due diligence in vetting and training of employees as well as having grievance procedures and effective remedies to victims of abuse. The ICoCA Board of Directors, made up of representatives of states US, UK Australia, Canada, Norway, Sweden, Switzerland , industry and civil society organizations, is responsible for developing procedures for certification, monitoring, reporting, assessing performance and addressing complaints.
The Association is empowered to request a member company to take corrective action to remedy non-compliance with the Code within a specified time period. A non-compliant company may suffer suspension or termination of membership. To be able to exert control over human rights abuses, it is important to identify the functions of the state and those of the private sector; to determine when the acts of private actors are attributable to the state; but also to recognize that the government still has positive obligations to regulate the private sector in order to prevent human rights abuses.
During the s and s, land was unlawfully seized from the indigenous Malay and Sakai communities in Riau province of Sumatra for the PT Arara Abadi plantation. The military and police used intimidation and violence to forcibly evict local people from community lands. Indonesian authorities attributed responsibility to the Free Papua Movement but doubts were cast on those claims when police recovered military and police grade bullet casings from the scene.
In , Brimob officers working for the palm oil company, PT Agro Bukit, shot and killed a person when he was fleeing with other villagers who had gone to the plantation to enquire about the arrest of local farmers. Throughout —, several allegations have been made against Brimob forces concerning the use of force and intimidation while evicting local people from community lands. Fieldwork undertaken by several of the authors, employed by the Indonesian NGO Inkrispena , and supported by the Dutch NGO SOMO, or the Centre for Research on Multinational Corporations explored the relationship between security providers and two MNCs involved in the exploitation of natural resources in the agricultural commodities sector and embroiled in numerous instances of human rights violations.
These two case studies, which involved fieldwork in Sumatra in July and August supplementing publicly available information, reveal a pernicious and deliberate erosion and violation of the rights of local inhabitants across the spectrum of security actors, showing that public security actors are protecting corporate interests rather than performing public functions. These incidents have involved AP staff, its security personnel, and Indonesian security forces in the form of police, the mobile police brigade Brimob , and the Indonesian military TNI.
The research work produced a detailed, but non-exhaustive overview, of the harassment and intimidation that has taken place in the area in the past years. AP employs its own security personnel, in varying capacities.
Virtual International Authority File
In July , AP hired the mobile police brigade Brimob to increase the security of their plantation. They reportedly approached homes, verbally abusing and threatening to shoot the inhabitants while firing their weapons into the air. It was said that interviewees from Bungku felt terrorised by the actions of the police. Bungku is beset on all sides by the concessions of four companies, all with their own private security personnel. The different security forces are not easily identifiable, as most do not wear insignia indicating which company they work for.
Meanwhile, security personnel guard roads leading to and on the plantation. In February , when thousands of evicted community members attempted to return to what they perceive as their indigenous land, they were blocked by the police and the TNI or Indonesian military. During the beating, local police officials present at the security post watched the physical abuse without intervening. The above mentioned security incidents are directly related to the vulnerable position of local communities. Community members who were interviewed expressed animosity towards WKS, stating the company had caused them to lose land and livelihood, as well as the loss of their way of life, and pointed to the death and criminalization of their fellow community members by company security, Brimob and the TNI.
After the roads were finished that same year, WKS personnel reportedly returned to Lubuk Mandarsah and, accompanied by the TNI, evicted several villagers and cleared their cultivated land, thereby destroying their livelihoods. Following the burning, several Brimob trucks came to the village with arrest warrants for 11 villagers, but left without detaining anyone. He had been beaten and then had a rope tied around his neck, which led to his suffocation and death.
It was noted by the Indonesian NGO Walhi that during the court proceedings no attention was paid to the question of whether the URC personnel had been acting under instructions to use force if necessary. Reportedly, the judges assumed that URC personnel had acted violently at their own volition.
Towards the end of , WKS hired another company for their private security, known as Bima. Considering both cases studies together, it can be concluded that the rule of law is not functioning in the areas of operation of both AP and WKS. It finds that they at best offer a belated process for increased government oversight, but not ownership, of military businesses controlled through military cooperatives and foundations. They do not address many other military money-making activities, including payments from companies for protecting private assets; criminal enterprises, such as involvement in illegal logging; and various forms of corruption, including inflating the cost of military purchases.
And they do not address accountability for human rights violations connected to military business. On the margins of profit : rights at risk in the global economy by Lisa Misol Book 3 editions published in in English and held by 67 WorldCat member libraries worldwide. Too high a price : the human rights cost of the Indonesian military's economic activities by Lisa Misol Book 4 editions published in in English and held by 65 WorldCat member libraries worldwide.
Slovakia, ripe for reform : stemming Slovakia's arms trade with human rights abusers by Lisa Misol Book 2 editions published in in English and held by 33 WorldCat member libraries worldwide And Recommendations -- Case study 1: Illegal dealings : the stubborn helicopter deal -- Case study 2: Legal or illegal? The mysterious Iranian shipment -- Case Study 3: Carelessness uncovered : the licensing mix-up -- The case for further reform -- Conclusion -- Appendices -- Acknowledgments.
Indonesia : "Unkept promise" : failure to end military business activity in Indonesia by Lisa Misol Book 2 editions published in in English and held by 2 WorldCat member libraries worldwide. Ripe for reform : stemming Slovakia's arms trade with human rights abusers Book 1 edition published in in English and held by 1 WorldCat member library worldwide The report features 3 detailed case studies that exemplify the main ars-trade challenges facing Slovakia today: illegal arms deals parading as legitimate transactions, the use of deceptive practices by arms brookers and transport agents, and the inadequacy of existing licensing controls.