Development Aggression
Observations on Human Rights Conditions
in the PT Freeport Indonesia Contract of Work Areas
With
Recommendations
Prepared by Abigail
Abrash, Consultant
For the Robert F.
Kennedy Memorial Center for Human Rights
July 2002
Development Aggression: Observations on Human Rights
Conditions in the PT Freeport Indonesia Contract of Work Areas With
Recommendations, July 2002.
This document was prepared with the generous financial
support of the Richard and Rhoda Goldman Fund and the support and good will of
many people in Papua and Indonesia.
“Development is development aggression when the people
become the victims, not the beneficiaries; when the people are set aside in
development planning, not partners in development; and when people are
considered mere resources for profit-oriented development, not the center of
development . . . . Development aggression violates the human rights of our
people in all their dimensions—economic, social, cultural, civil and political.”
The Philippine Alliance of Human Rights Advocates, as
quoted in Ramon C. Casiple, “Human Rights vs. Development Aggression: Can
Development Violate Human Rights?” Human Rights Forum: Focus on
Development Aggression. Quezon City: Philippine Human Rights Information
Center, 1996.
Project Background............ 4
Information Collected................... 6
Historical and Political Context. 6
Papua’s Integration into the Republic of Indonesia..... 8
Freeport’s Contract of Work with
the Indonesian Government 10
Human Rights Violations............ 11
Support to the Indonesian Military. 13
Cultural/Environmental Impact and Development Aggression 16
Community Actions
Seeking Redress....... 22
Recommendations................. 23
Further Investigation
Needed............ 23
Recommendations to Freeport 24
Recommendations to the Government of Indonesia............ 25
Terms of Reference............ 36
Team Member Biographies.......... 41
This paper is a presentation of observations,
conclusions, and recommendations regarding human rights conditions in the PT
Freeport Indonesia (“PTFI”) Contract of Work (“COW”) areas in Papua,[1]
Indonesia. PTFI is majority owned and controlled by US‑based mining
company Freeport-McMoRan Copper & Gold Inc. (“Freeport”),[2]
and it operates the world’s largest copper and gold mining enterprise in the
Papuan subdistrict (kabupaten) of Mimika. This mining operation, located primarily on the southern slopes
of the Jayawijaya mountains, includes a project area (e.g. mine site, mill) and
transportation, administrative, and other infrastructure, as well as extensive
exploration concessions throughout other parts of the mountain range.
This paper is based, in part, on the Robert F. Kennedy
Memorial Center for Human Rights’ (“RFK Center”) role as co-sponsor of a joint
Indonesian-international team[3]
that attempted to carry out an independent examination of human rights
conditions in PTFI’s COW areas, described above. The assessment team’s remaining co-sponsors were the
Jakarta-based Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum
Indonesia or “YLBHI”) and the Jayapura-based Institute for Human Rights
Studies and Advocacy (Lembaga Studi dan Advokasi Hak Asasi Manusia or “ELSHAM”). This paper draws upon the team’s
observations during the assessment’s preliminary phase in September 1999, and
on additional fact-finding and analysis conducted by team members and RFK
Center staff before and since that time.
The observations, conclusions, and recommendations presented here are
solely those of the author.
The presentation below has been circumscribed by
Freeport’s lack of cooperation and other interference with the assessment
process.[4] Due to political sensitivities on the part
of Indonesia’s National Commission on Human Rights (“Komnas HAM”) and the
Indonesian provincial police in Papua, it has not been possible to carry out
the on-site fact-finding necessary for completion of the proposed independent
assessment. This paper is therefore not
intended to serve as the report of a comprehensive independent human rights
assessment; instead, it presents information and analysis compiled and prepared
by the author with support from the RFK Center.
The RFK Center implements the vision of Robert F.
Kennedy by promoting the full spectrum of human rights both in the United
States and globally. The RFK Center develops and carries out projects which
enhance and complement the work of the RFK Human Rights Award laureates and
that promote social change. Established
in 1984, the Human Rights Award honors creative individuals who are, often at
great personal risk, engaged in strategic and nonviolent efforts to overcome
serious human rights violations.
The RFK Center’s Indonesia work began with the
presentation of the 1993 RFK Human Rights Award to Indonesian lawyer Bambang
Widjojanto. Mr. Widjojanto, honored for
his work defending the rights of indigenous peoples in Papua, served for seven
years as director of the Papua branch of YLBHI, Indonesia’s leading human
rights organization. Since 1993, the
RFK Center has developed a special focus on Papua, and it has monitored human
rights concerns specifically associated with Freeport.
The proposed human rights assessment was developed in
response to external requests for an independent and comprehensive human rights
inquiry into the Freeport COW areas.
These requests came from both US-based Freeport shareholders (the Interfaith
Center on Corporate Responsibility and the Seattle Mennonite Church) and local
indigenous communities (as represented by the Amungme Tribal Council—Lembaga
Musyawarah Adat Suku Amungme or “LEMASA”).
The RFK Center agreed to undertake the assessment with the partnership
of YLBHI and ELSHAM.
Following a two-year planning process, the RFK Center,
YLBHI, and ELSHAM organized and attempted to conduct a preliminary planning and
fact‑finding mission to Freeport’s mining operation in the Papuan kabupaten
of Mimika. This initial stage in
the assessment process included a series of meetings in Jakarta with Komnas HAM
and senior PTFI management.[5]
These were to be followed by team meetings in Jayapura and a visit to the
mining town of Timika. Team members
discussed the aforementioned meetings in Papua with both Komnas HAM and
PTFI/Freeport senior management and staff prior to traveling to the province,
and both parties conferred their formal approval. However, the meetings in Jayapura were interrupted, and a visit
to Timika prevented, when the provincial police interrogated and expelled two
of the international team members from Papua.[6] Immigration officials in Jakarta determined
that the police deportation and blacklisting order had no legal basis, and the
two individuals remained in Indonesia to finish out the assessment’s
preliminary phase. The second stay in
Jakarta was used for additional team meetings and appointments with Komnas HAM,
LEMASA, and senior staff and management of PTFI and Freeport. Komnas HAM also issued a public statement
reiterating its support for the assessment team’s activities.
After the blocked attempt to initiate the assessment
in September 1999, however, PTFI/Freeport posed new obstacles to the assessment
effort. Senior officials from both PTFI
and Freeport met with Komnas HAM members to challenge both the scope of the
assessment and the composition of the team.
Indicating that they could not support the assessment in its proposed
form, they persuaded Komnas HAM to withdraw its support for the initiative
until the concerns were resolved.
Following a series of meetings over several months between Freeport
officials, assessment team members, and RFK Center staff, Freeport agreed to
withdraw its objections and to allow a fully independent investigation to move
forward. Unfortunately, by this time
the situation on the ground in Papua had changed. In a September 2000 meeting in Jakarta, Komnas HAM officials
proposed that the assessment be delayed until the political tensions in Papua
decreased and the security of team members could be ensured. After encountering further delay, the RFK
Center and other partner organizations determined that an independent assessment
could not take place at that time.
Because the
assessment was not done, it was not possible to prepare a full report on the
findings of the independent investigation.
However, much information was collected in the process of developing the
assessment parameters, and several of the team members compiled documentation
from other sources. Because this
information is significant, it is appropriate to release this report in the hopes
that it will encourage further scrutiny of the human rights situation in Papua
in the future. This paper is intended
to convey the information available as well as recommendations to Freeport and
other actors in the hopes that it will support positive changes for the people
of Papua.
The relationship between
Freeport and the indigenous Papuan peoples has been influenced by a set of
interrelated dynamics, with explicit human rights dimensions, specifically: (1)
the flawed integration of Papua into the Republic of Indonesia and subsequent
Papuan resistance to Indonesian sovereignty; (2) the top-down, paternalistic,
and nonparticipatory economic and social development policies and practices of
the Indonesian government; (3) the counter-insurgency operations of the
Indonesian military which have been carried out in order to defend Freeport’s
mining operations and other investment projects externally imposed upon local
indigenous communities; (4) the corrupt governance practices of the Suharto
regime and overall lack of the rule of law in Indonesia; (5) and Freeport
management’s willingness to operate within such a framework[7]
as well as to introduce or allow particular terms in the company’s COWs.
The historical
and political context in which US-based Freeport established mining operations
in Papua is instructive and reveals the early seeds of conflict between the
corporation and indigenous Papuans.
The Amungme and Kamoro peoples[8]
are the original indigenous landowners of the areas that now comprise
Freeport’s COW A mining and infrastructure (e.g., port site, roads, airport)
zone. Other indigenous Papuan groups,
including the Moni and Nduga peoples, are the original landowners in Freeport’s
COW B exploration concession area.
In 1967, at the time of the establishment of
Freeport’s first base camps, the Amungme and Kamoro communities numbered
several thousand people,[9]
organized in clan-based village social and governance structures. With lands encompassing the area’s tropical
rainforest, coastal lowlands, glacial mountains, and river valleys, the Kamoro
(lowlanders) and Amungme (highlanders) practice a subsistence economy based
upon sustainable agriculture and forest products, fishing, and hunting. Their cultures and spiritual values are
intimately entwined with the surrounding landscape.
During the course of the 20th century,
British naturalist expeditions, mountaineering teams, Japanese troops, Catholic
and Protestant missionaries, and officials of the Dutch colonial administration
all visited Amungme and Kamoro lands.[10] What differentiates Freeport’s presence from
that of previous visitors to the area is that the mining operation has directly
and indirectly caused a massive, permanent, and escalating disruption to the
lives of the indigenous inhabitants. It
has initiated new and dominant economic, political, social, and cultural
paradigms that have not respected the economies, governance structures, laws
and customary practices, spiritual and ecological values, social arrangements,
or cultural traditions of the original indigenous landowners.
New arrivals swarming to the economic boomtown created
by the mine and its infrastructure include thousands of Javanese and Balinese
settlers sponsored by the Indonesian government’s problematic transmigration
program,[11] spontaneous
migrants such as traders from Sulawesi, thousands of Papuans from other parts
of the territory, and North American, Australian, New Zealand, and Javanese
employees of Freeport. By the 1990s,
the area’s population had exploded to more than 60,000 people, making Kabupaten
Mimika the fastest-growing subdistrict in the entire Indonesian
archipelago. As a result, the Amungme
and Kamoro—now minorities on their own lands—continually raise and seek
remedies for a variety of environmental and other human rights concerns.
Under international human rights law, all peoples
possess the right to self-determination and to sovereignty over their natural
resources.[12] This right applies, in particular, to
populations living under colonial domination.
In the case of Papua, serious questions remain about the legitimacy of
the territory’s integration into Indonesia and the validity of the Indonesian
central government’s authority over Papuan natural resources, including those
exploited by Freeport.
During the 1960s, the United Nations (“UN”)—in an
effort strongly supported by the US government—brokered the transfer of control
over Papua from the Dutch colonial administration to the Republic of
Indonesia. Indigenous Papuans were
excluded from the negotiations, which culminated in the bilateral New York
Agreement of 1962. The year before,
Papuans had elected representatives to the newly established New Guinea
Council, one purpose of which was to advise the Dutch colonial administration
on how Papuans might exercise their right of self-determination;[13]
however, these elected officials were not invited to participate in the
UN-sponsored sovereignty talks leading up to the 1962 Agreement.
Seven years later, after Indonesia had established
full control over Papua, the Act of Free Choice (“AFC”) was held to satisfy the
New York Agreement’s requirement of a formal “act of self-determination.”[14] In setting up the referendum on the AFC, the
Indonesian government declined to employ the mixed method of voting recommended
by the UN Representative in West Irian (Bolivian diplomat Fernando Ortiz Sanz),[15]
and instead created eight consultative assemblies totaling 1,026 Papuans, in
which each member was meant to represent approximately 750 inhabitants. These assemblies did not vote, relying
instead upon the process of musyawarah or “consultation”, which necessitates
consensus. This process prompted
protests from Ortiz Sanz and delegates to the UN General Assembly, who cited an
atmosphere of repression in which the Indonesian government violated Papuans’
rights of free speech, movement, and assembly, and continuously exercised
“tight political control over the population.”[16] Foreign journalists on site in Papua before
and during the Act of Free Choice reported that the Indonesian government
detained scores of Papuans to prevent them from disrupting the Act.[17]
Despite such obstacles, Ortiz Sanz reported on
numerous attempts by Papuans to communicate to UN personnel their desire for a
free Papuan state. The UN
Representative personally received 179 petitions from Papuans, roughly half of
which called for a free West Papuan state and/or outlined concerns about
military repression and the detention of political prisoners.[18] In one notable act of protest, a
2,000-strong group of Papuan demonstrators rallied peacefully outside of Ortiz
Sanz’s residence in Jayapura, calling for a genuine referendum; Indonesian
armed forces arrested and detained at least 43 of the participants.[19] Ortiz Sanz also noted the phenomenon of Papuans voting
with their feet by seeking refuge across the border in Papua New Guinea.[20]
Over a five-month period, Ortiz Sanz repeatedly
attempted to gain proper implementation of respect for the basic rights and
freedoms of Papuans so that the population would be able to freely express its
will in the AFC. Failing to achieve
this objective through his meetings with Indonesian Foreign Minister Adam Malik
and lower-level officials, Ortiz Sanz reported that “in a last attempt to have
article XXII of the Agreement properly implemented, I asked, on 10 June 1969,
for an audience with the President of the Republic of Indonesia, General
Suharto. Owing to his heavy schedule of
work, the President could not receive me before 12 August, ten days after the
completion of the act of free choice,” and more than two months after the UN
Secretary General’s Representative’s request.[21]
Though the UN General Assembly
eventually took note of the results of the Act of Free Choice, it did so
following contentious debate in which delegates argued that Papuans had not
been allowed to exercise their right of self-determination within the meaning
of the 1962 Agreement. Papuan community
leaders have repeatedly rejected the territory’s integration into Indonesia,
and a number of legal scholars have also questioned its validity, citing Papua
as a prominent example of a failed decolonization process because of the lack
of a legitimate exercise of self-determination by its indigenous peoples.[22]
In April 1967, two years before the AFC formally
initiated Indonesian sovereignty over Papua, Freeport signed its first COW with
Indonesia’s newly established New Order government, headed by Army General, and
later President, Suharto.[23]
Freeport management recognized that the mining
operation was a risky venture.
Indonesia was emerging from a violent military takeover in which an
estimated 500,000 people had been killed,[24]
and as a Freeport executive has noted, the “legal basis for a [mining]
agreement was vague,” presumably because of the uncertainty of Papua’s status.[25]
For the Kamoro and Amungme,
Freeport has represented a foothold of Indonesian control over their lands and
over Papua as a whole. Indeed, Suharto
chose the occasion of his 1973 inauguration of Tembagapura, Freeport’s main
mining town complex, to rename the province Irian Jaya or “Victorious Irian.”
According to local Papuans, the Indonesian government has used the name Irian
as a propagandistic acronym standing for “Integrate with the Republic of
Indonesia Against the Netherlands.”[26]
The 41-page COW, drafted by Freeport, was reportedly
the first contract entered into under the New Order’s Foreign Investment
Law. It provided the company with broad
powers over the local population and resources, including the right to take
land and other property and to resettle indigenous inhabitants while providing
“reasonable compensation” only for dwellings and other permanent improvements.[27] The terms of the COW disregarded Kamoro and
Amungme customary land rights and provided inadequate protection for those
communities’ rights to livelihood, to adequate housing, food, and health, and
to practice their culture. As local
community members have repeatedly pointed out, there was no requirement that
the company seek the agreement of or other input from local landowners, or compensate
them for the loss of their food gardens, hunting and fishing grounds, drinking
water, forest products, sacred sites, and other elements of the natural
environment upon which their cultures and livelihoods depend. The indigenous population had no legally
available rights of refusal, of informed consent, or to adequate
compensation. No social or
environmental impact assessment was required or conducted.
The contract gave Freeport the right “to take and
use,” on a tax-free basis, water, timber, soil, and other natural materials in
the project area and from other parts of the territory.[28] In the subsequent 1991 COW, in effect at the
time of writing, the contract also explicitly provides for flexibility on the
part of the Indonesian government in enforcing relevant environmental
protection laws and regulations.[29]
The Indonesian government has vigorously obstructed
international scrutiny of human rights violations in the Freeport area by
blocking access to Papua by UN and other monitors.[30] Freeport management asserts that it
requested the International Committee of the Red Cross (“ICRC”) to conduct an
investigation in 1995,[31]
but there is no independent evidence that such a study ever took place, and the
ICRC’s own rules prohibit the organization from releasing its findings in any
case. Inquiries undertaken by the
Australian and US Embassies in 1995 have also never been made public.[32] Since 1996, the US Embassy has reported
briefly on human rights concerns in the Freeport area in its annual “Country
Reports on Human Rights Practices.”
Despite the difficulty of monitoring human rights
conditions in the Freeport area, the 1990s brought increased domestic and
international attention to the Amungme and Kamoro’s human rights and
environmental concerns. Publicly
available reports document specific human rights violations that have occurred
in and around Freeport’s project area since 1994.[33] Unlike these initiatives, the RFK
Center/ELSHAM/YLBHI independent human rights assessment was intended to survey
human rights conditions in the Freeport COW areas since the company’s arrival
in 1967.
While fact-finding regarding human rights conditions
in Freeport’s COW areas remains incomplete, well-documented human rights abuses
there have included:
·
Torture, rape,
indiscriminate and extrajudicial killings, disappearances, arbitrary detention,
surveillance and intimidation, employment discrimination, and severe
restrictions on freedom of movement;
·
Interference with access
to legal representation;
·
Violation of subsistence
and livelihood rights resulting from seizure and destruction of thousands of
acres of rainforest, including community hunting grounds and forest gardens,
and contamination of water supplies and fishing grounds;
·
Violation of cultural
rights, including destruction of a mountain and other spiritually significant
sites held sacred by the Amungme;
·
Forced resettlement of
communities and destruction of housing, churches, and other shelters.
Some of these violations—such as
those caused by environmental destruction—are the direct by-products of
Freeport’s mining operations.
Others—such as physical attacks—are the result of the illegal,
indiscriminate, and/or disproportionate use of force against civilians by the
Indonesian military and police providing security for and funded by
Freeport. Appendix B of this document
contains some specific examples of the abuses referenced above. The appendix is not intended to represent a
comprehensive listing of such acts, but is included to provide readers with an
understanding of the scope and severity of the human rights violations that
have occurred.
Since the early 1970s, the Indonesian military has used
Freeport-built infrastructure (e.g., airport, roads, port site) as a staging
ground for deadly assaults against the original Papuan landowners in the mine’s
vicinity—actions purported to be undertaken for protection of the mine and the
elimination of popular resistance to Indonesian sovereignty.
The first documented Indonesian military killings of
indigenous people in the Freeport area occurred in 1972.[34] Researchers have recorded more than 150
cases of individual killings of Amungme[35]
and other indigenous people in and around the mine since the 1970s, as well as
hundreds of additional deaths amongst these populations from illness and injury
due to forced relocation and military attacks.
Freeport has provided considerable financial and
logistical support—as well as equipment—to the Indonesian military and police.[36] Police have been present at the mine site
since the early construction period.
For years, a unit of fewer than 100 soldiers occupied the area, but
following the Amungme sabotage of Freeport’s copper slurry pipeline in 1977,[37]
the Indonesian Armed Forces engaged in numerous attacks on local indigenous
people, including killings, rape, and other assaults. The military presence increased exponentially following the
discovery of the Grasberg deposit, rising to at least 1,850 soldiers by 1996.[38]
The Indonesian
government has acknowledged the active measures taken by the military to expand
its authority in the Freeport COW areas.
Referring to a March 1996 riot that caused a temporary shutdown of
mining operations, in which company management described seeing individuals
with “walkie-talkies” and straight hair (i.e., non-Papuans; presumably
plainclothes military personnel) orchestrating the violence,[39]
former Indonesian Minister of Defense Juwono Sudarsono confirmed that “elements
within the military had incited the unrest experienced by Freeport in order to
highlight the benefits of their presence.”[40] Senior and former Freeport employees also
asserted that the military had “convinced” Freeport management that its presence
was necessary to protect the mining operation from disturbances by “disgruntled
employees, locals who accuse the company of environmental damage, exploitation
(even pillaging) of resources, and cultural insensitivity.”[41] In response, Freeport agreed to pay the
military a one-time sum of $35 million, to be supplemented by an annual
“donation” of $11 million.[42]
Internal company documents provide information on
Freeport’s expenditures for military headquarters, recreational facilities,
“guard houses and guard posts, barracks, parade grounds and ammunition storage
facilities,” as well as offices for two Army advisors, totaling $5,160,770 for
the Army and an additional $4,060,000 for police.[43] Former Freeport pilot Terry Doyle states
that in the late 1970s and early 1980s, company management ordered Freeport
helicopter pilots to transport Indonesian military troops on patrol missions,[44]
and there is well-documented evidence that during this same period, Indonesian
troops carried out severe and violent attacks on civilian populations within
and outside of Freeport’s COW areas.
Local indigenous Papuans and
some of Freeport’s US-based institutional investors have criticized such
actions and called for an end to the company’s support of the armed forces,[45]
citing the connection between Freeport’s financial and logistical assistance
and human rights violations. For
example, the Catholic Church of Jayapura reported that some acts of torture
experienced by local indigenous Papuans during the 1994-95 period took place on
a Freeport-operated bus and “in Freeport [shipping] containers, the Army
Commander’s Mess, the police station and the Freeport security post.”[46] The Catholic Church report, based on
eyewitness testimony, provides a highly detailed and disturbing account of the
human rights abuses experienced by Amungme and other local indigenous people:
“[P]hysical
torture consisted of kicking in the belly, chest and head with army boots;
beating with fists, rattan, [sic] sticks, rifle butts and stones; denial of
food; kneeling with an iron bar in the knee hollows; standing for hours with a
heavy weight on the head, shoulders, or cradled in the arms; stepping and
stamping on hands; tying and shackling of thumbs, wrists and legs; sleeping on
bare floors; stabbing, taping eyes shut; and forced labor in a weakened
condition. The torture caused bleeding
head wounds, swollen faces and hands, bruises, loss of consciousness and death
because of a broken neck.”[47]
In September 1995, Komnas HAM concluded that clear and
identifiable human rights violations had occurred in and around Freeport’s
project area, including indiscriminate killings, torture, and inhuman or
degrading treatment, unlawful arrest and arbitrary detention, disappearance,
excessive surveillance, and destruction of property.[48] The commission noted that these violations
“are directly connected to [the Indonesian army]…acting as protection for the
mining business of PT Freeport Indonesia.”[49] In response, company officials have claimed
that Freeport’s Contract of Work with the national government requires the
provision of logistical support to the Indonesian military and police;[50]
however, neither the 1967 nor 1991 COW makes explicit mention of any such
stipulation. Therefore, the company’s
financial and logistical support for Indonesian security forces appears to have
no legal basis. Yet Freeport recently
signed a voluntary set of principles regarding security and human rights that
presents as legitimate its continuing corporate financial support to the
Indonesian military and police.[51] Company management’s assertion that Freeport
is attempting to design and implement guidelines regarding its provision of
such support has conspicuously lacked any reference to independent evaluation
and/or monitoring.
Indonesia’s 1945 Constitution effectively grants
near-total control over land, water, and other natural resources to the
national government. Although some
articles of the Basic Agrarian Law and Mining and Forestry Laws refer to
protection of adat (customary) land rights, these provisions are
ambiguous at best in terms of defining the relationship between such rights and
the de facto dominant powers of the state and its partner
enterprises. For example, local
communities are barred from using or disposing of land in a manner contrary to
that which the government deems to be “in the national interest.” Opposition to “development” has been treated
as an act of subversion by Indonesian authorities, producing a chilling effect
for indigenous communities who seek to retain their customary lands or to
participate in decisionmaking regarding the use of those lands.[52]
It should be noted, however,
that since the Constitution predates Papua’s controversial annexation, it is
questionable whether that document is applicable as the sole determinative
law. International law protects the
property regime in place at the time of a change of a sovereign, citizenship,
or state succession.[53] Thus when Papua was integrated into
Indonesia, the existing legal framework regarding traditional property rights
was unaffected. It is completely
conceivable that the traditional land tenure regime remains in effect and that,
while in practice these traditional land rights have been infringed upon by
both the Indonesian government and Freeport, the underlying legal regime has
not been extinguished and can serve as a legitimate basis for action by the
indigenous peoples.[54]
Despite the government’s control over land use and
dispersal, Indonesian law explicity provides that (1) every person has the
right to a good and healthy living environment; and (2) those managing the land
have an obligation to prevent and abate environmental damage and pollution.[55] However, legal researchers cite Indonesia as
a “classic example of a state with extensive environmental legislation going
virtually unenforced due to political constraints.”[56] Senior government officials, their family
members and associates, and members of the armed forces[57]
maintain vast holdings in mining, logging, and other natural resource
operations throughout the country. The
lack of an independent judiciary proves a primary obstacle to environmental and
human rights protection,[58]
as “the doctrine of separation of powers of government is specifically
rejected. The already low level of
judicial autonomy has been aggravated by the fact that the most senior posts in
the Justice Ministry and the High Court have been filled since 1966 by
graduates of the military law academy.”[59]
Freeport has refused to
respond to repeated shareholder requests for notices of any environmental
violations received by the company, any penalties assessed, and any penalties
paid since 1968 in relation to its mining operations in Papua. Nor were shareholders able to locate any
such information in the Montgomery Watson 1999 External Environmental Audit of
PT Freeport Indonesia Operations, suggesting that the Suharto government never
held Freeport accountable for any of the environmental damage resulting from
its mining operation.[60]
These findings are consistent
with those of other researchers who have observed that the environmental impact
assessments required under Indonesian law have
“proven
ineffective and have generally de-emphasized negative impacts and ignored
mitigation measures of environmental harms.
Because monitoring after assessment is unheard of, preparation of the
assessment is generally the end of the environmental management process. More recent legislation explicitly ties
operating permits to implementation of management and monitoring plans, but
also explicitly exempts a wide variety of developments.”[61]
Of the few independent assessments of Freeport’s
environmental impact in Papua, one of the most telling was undertaken by the US
Overseas Private Investment Corporation (“OPIC”) in 1994. Citing the damage caused by Freeport’s river
disposal of waste known as “tailings” and concluding that the company’s
environmental impact was in violation of US regulations, OPIC revoked
Freeport’s $100 million political risk insurance in October 1995. OPIC stated that the mine had “created and
continues to pose unreasonable or major environmental, health or safety hazards
with respect to the rivers that are being impacted by the tailings, the
surrounding terrestrial ecosystem, and the local inhabitants.”[62]
A second independent assessment, a
1999 report by the Jayapura-based environmental organization YALI and the
Indonesian Legal Aid Institute (“LBH”), indicated that five local indigenous
Papuans had died as a result of copper poisoning incurred from eating mollusks
and other living organisms from the river system affected by Freeport
tailings. Two years earlier, Kamoro
communities affected by mine tailings had written a letter to PTFI management,
calling attention to the serious environmental and health impacts of the
company’s mining operations. The
document, signed by 77 people from the Negeripi and Nawaripi communities,
states:
“The 87 families and 300 people of our villages [who]
have suffered from the disposal of mining wastes and environmental damage
caused by [Freeport] for over thirty years in this area protest to you strongly
about the continuous pollution and devastation of our tribal lands . . . The
floods and the toxic chemicals caused by the mining waste dumped in the River
Muamiuwa and River Ajkwa have [made some places dry up and poisoned
others]. The sago palms and the trees
which provide wood for our homes and canoes are dead; the animals we hunt have
fled; the traditional medicine plants have gone. Our culture is starting to die out and we are suffering from
increasing serious health problems.”[63]
The
significance to the Amungme of their lands has been well described by the
Amungme themselves. One Amungme author
writes, “[The Amungme’s] respect toward nature restrains them from causing any
destruction to their environment. To
destroy the environment is akin to their [own] destruction.” He states, “To the Amungme, the most
important thing is to maintain the harmony among the three elements of life:
humankind, the natural environment and the spirit of the ancestors.”[64] Another Amungme states, “The land is
ourselves. The land is our mother.”[65]
Amungme cosmology locates the most significant of its
female earth spirits, Tu Ni Me Ni, as embodied in the surrounding
landscape. Her head is in the
mountains, her breasts and womb in the valleys, and the rivers are her
milk. To the Amungme, Freeport’s mining
activities are killing their mother and polluting the milk on which they depend
for sustenance—literally and spiritually.
In addition, mountains are the home to which the spirits of Amungme
ancestors go following death, and each peak is associated with a specific
clan. Freeport’s mining operations have
destroyed the Ertsberg and Grasberg peaks, filled with mining waste alpine
lakes linked with earth spirits, and paved over other sacred sites lower in the
valleys.[66]
Freeport’s management and the
government of Indonesia have disregarded indigenous Papuans’ deeply held
connections to and reliance upon the natural environment. The economic and spiritual values of the
land and other natural resources to the Amungme and Kamoro peoples have not
been given consideration in corporate and government decisionmaking regarding
Freeport’s mining operation and other local “development” projects. In addition, the Kamoro and Amungme have
been excluded from effective participation in the use, management, and
conservation of these resources.[67]
Freeport has taken steps to address
some community concerns through the construction of schools and a clinic, job
training and scholarships, special land recognition payments to the Amungme and
Kamoro, and special preference for supporting local businesses developed by
those communities. However, LEMASA and
the region’s three main Christian churches have issued explicit critiques of
such community development programs, and these critiques are implicit in public
statements made by community members.
Freeport’s “One Percent Trust Fund Offer,” which
designates one percent of annual revenues for provincial development programs,
has been one of the most controversial and damaging of such programs. Specifically, the Offer has been denounced
for having a divisive impact amongst indigenous communities and encouraging a
dependency mentality. In a June 1996
resolution, LEMASA “unconditionally and absolutely” rejected Freeport’s One
Percent Offer, declaring that “with the help of God we shall never succumb to
the offer of bribes, intimidation or [be] dishonestly induced into accepting
PT. Freeport Indonesia’s ‘Settlement Agreement.’”[68]
US
anthropologist Brigham Golden has noted that Freeport’s largesse continues to
be problematic as it undermines Papuan cultural norms. While Freeport dispenses huge sums, Amungme
and Kamoro peoples are not in a position to reciprocate in an equally
meaningful way. Under the Indonesian
land tenure system, Golden explains, local people cannot give their land
because the company and the government do not acknowledge that it was theirs to
begin with. Thus Freeport has “never
asked for the only other thing Papuans can give: forgiveness.”[69]
Golden, who has carried out
fieldwork within Freeport’s COW areas, states:
“PT-FI will never be ‘done’ with [building its
relationships with indigenous community members]. It can elect to engage this
relationship with responsibility—not an easy path—or it can be haunted
constantly by the tensions created by its irresponsibility. If there is a single affirmation in this
report it is that the key to forming and developing this relationship is
understanding the social dynamics of the region. PT-FI cannot hope to improve its effects without understanding
the community in which it participates.”[70]
Freeport’s attempts to engage local Amungme and Kamoro
in its community development paradigm have drawn criticism from indigenous
leaders. Amungme leader Tom Beanal has
written with some bitterness about his own acceptance—with LEMASA’s backing—of
positions as a PTFI Commissioner and as Vice President of the People’s
Development Foundation-Irian Jaya, a development organization established with
One Percent funding. Citing the ongoing
devastation to local communities, Beanal describes his cooperation with the
company as a necessary evil. Through
this lens, a clearer view is possible of the recent Memorandum of Understanding
signed by Beanal, Kansius Asmareyao (a Kamoro community member), and Freeport,
publicized in August 2000 as representing a watershed in community-company
relations. While the announcement of
the Memorandum helped to boost Freeport’s stock rating by financial analysts,
there is no indication that it represents a retreat from the local communities’
commitment to holding Freeport accountable for its social and environmental
impact. Beanal himself remains critical
of the continuing dynamic of exploitation that Amungme and Kamoro experience,
recently telling a journalist that “the Indonesian Government eats at the table
with Freeport, they throw the leftover food on the floor and we Papuans have to
fight for it.”[71]
These sentiments are shared
by other Papuan leaders. Delegates to
the provincial assembly barred Freeport representatives from attending a March
2001 forum on special autonomy, stating that the company had violated the
rights of local peoples and was therefore partially responsible for the strong
Papuan independence movement. Anton
Kalinangame, Secretary of the assembly’s Commission F on human rights and the
environment, said that Freeport should apologize to the Papuan people for the
company’s past wrongs. Commission chair
Augustin Iwanggin noted:
“Freeport
has demonstrated its brilliance and success at exploiting the wealth of this
province with a lifestyle both luxurious and plentiful in the midst of the
poverty and suffering of the Irian Jaya people. There are extremely sharp differences, like the earth to the
sky. Irians are eating sago and tapioca
while they indulge themselves with gourmet food and money. But Freeport itself has never recognised its
own wrongs and improved the management of the company.”[72]
In February 1999, Freeport’s
Board of Directors adopted a Social & Human Rights Policy, and subsequently
instituted a system of internal human rights monitoring. This system established an internal
reporting mechanism overseen by two company human rights officers, Dr. David
Lowry, based at Freeport’s headquarters in New Orleans, Louisiana, and Dr.
Daniel Ajamiseba, based at PTFI’s offices in Timika. The system also requires individual certification by all
employees, on an annual basis, that they have neither witnessed nor engaged in
human rights violations. However,
according to a news report:
“Interviews
with Freeport employees…indicate that the human rights policy is being only
partially implemented. Freeport’s
designated Papuan-born compliance officer, Daniel C. Ajamiseba, says that he
doesn’t have enough time even to count the bundles of forms that pour into his
office, much less study them, because he has more important duties. ‘This is
10% of my time,’ says Ajamiseba. ‘All of us are stretched so thin.’”[73]
The RFK Center and Amnesty
International USA prepared a critique of the Social & Human Rights Policy
and presented it to Freeport management in May 1999. Changes to the policy were to be considered by the Board at its
February 2000 meeting; however, further information about any policy
modifications that may have been adopted is unavailable at the time of
writing. The Board did create the
position of Special Counsel for Human Rights to Chairman James Robert (Jim Bob)
Moffett, and appointee Gabrielle Kirk
McDonald[74] visited
Indonesia in June 2000; [75] however,
the findings of her visit or any recommendations she may have made are also
unavailable.
Amungme and Kamoro community
members have protested and sought redress for the environmental degradation and
human rights abuses associated with Freeport’s operations. The Amungme have been most visible in these
efforts.
The earliest Amungme protests involved,
in 1967, the posting of traditional anti-trespassing sticks around Freeport’s
highlands base camp. Later acts have
included public demonstrations and raisings of the Papuan Morning Star flag,
the flag adopted in 1961 by the territory’s elected New Guinea Council. The most devastating act of property
destruction—for Freeport and for the Amungme—was the 1977 cutting of the
company’s copper slurry pipeline.[76] According to the Amungme and company
employees alike, that action was taken in direct retaliation for strafing by
the Indonesian military of the Amungme village of Akimuga, which had been
prompted by the local community’s expulsion of two Indonesian police
officers. The pipeline sabotage
triggered a massive assault by the Indonesian military on Amungme communities
in the highlands and also in the lowland settlement of Kwamki. The military’s attack, and its subsequent
occupation of Akimuga, resulted in scores of Amungme deaths due to killings by
soldiers and starvation when villagers were forced to flee their homes.
In 1996, Amungme community members brought two civil
lawsuits against Freeport in the United States—one in US federal court, the
other in the state court of Louisiana where the company is headquartered.[77] Filed on grounds of human rights abuse,
personal injury, environmental damages, and cultural genocide, thousands of
indigenous community members formally supported the suits, as expressed through
LEMASA resolutions and signed statements by individuals wishing to join the
suits.[78]
During the 1990s, the Amungme and Kamoro chronicled
and communicated their concerns and demands in a variety of formal letters,
resolutions, public statements, and media
interviews.[79] Over the course of their struggle, local
landowners have appealed to the Indonesian government, military and civil
society institutions, the UN, US courts and policymakers, and directly to
Freeport management and shareholders in an effort to be heard and to have their
concerns effectively addressed. The
fact that their struggle continues, now in its fourth decade, underscores the
urgent need for more successful mechanisms for safeguarding the rights of
indigenous communities endangered by large-scale mining operations.
There is a
critical need for independent human rights monitors to investigate further the
full range of human rights violations identified in this document. Investigations ought to be conducted with a
view toward criminal and civil prosecution of those responsible and
consideration of various concrete options for compensation for victims.
It is also
important that a fully independent investigation should examine the roles of
PTFI and Freeport in the human rights violations that have occurred in the COW
areas. It is critical that Freeport
fully cooperate with independent investigations and monitoring of its
operations.
One credible option for independent investigation of
human rights violations in the Freeport COW areas would be a visit by the UN
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. The Rapporteur should focus on deaths in
custody due to excessive use of force by law enforcement officials and deaths
due to attacks by the Indonesian military, paramilitary police force BRIMOB (mobile
brigade), and/or Freeport’s private security force. Other UN special rapporteurs and representatives could also make
valuable contributions to the documentation of human rights concerns in the
area.
Further
study and action are required to determine how best the indigenous peoples of
Papua can assert their land claims, given that their traditional property
rights have been violated but apparently never extinguished. Additional inquiry could usefully explore
how traditional land rights were not extinguished by the Dutch, through the Act
of Free Choice, or by Indonesia, and also which fora might be available to the
Papuans to assert their unextinguished traditional title.[80]
Freeport should seek to uphold the full range of
internationally recognized human rights protections in all of its operations
and policies. Freeport/PTFI should
allow and cooperate with independent monitoring of the COW areas and support
government efforts to investigate human rights violations and prosecute
offenders.
Freeport should acknowledge the past human rights
violations that have occurred in its operations areas and seek new forms of
mediation with the local communities to address their concerns and complaints.
Freeport should end its financial support for the Indonesian military and police personnel stationed in its COW areas. The company should develop clear rules governing the use of and/or engagement with state security forces that include an effective prohibition against hiring security personnel who have been responsible for human rights violations.
Freeport should ensure that all company security arrangements are designed and implemented to protect human rights and to be consistent with international standards for law enforcement. Any security personnel employed or under contract should receive adequate training, including training in international human rights and law enforcement standards. There should also be a clearly established procedure to ensure that all complaints about security procedures or personnel are promptly and independently investigated. Freeport’s policies should include strict monitoring of the use of all company equipment to ensure that the equipment is not used to commit human rights violations.
Freeport should amend its Contract of Work with the
Government of Indonesia to fully respect international human rights laws. In particular, revisions should include the
elimination of the provisions giving the company the right to resettle local
populations and should commit the company’s operations to full oversight and
regulation by the Ministry of Environment.
Freeport should limit its
operations in ways that would effectively protect the human rights of local
communities and the cultural and environmental surroundings of the area. Company decisionmaking should be bound by a
transparent and honest assessment of the impact of operations. These assessments should always involve the
participation of local community representatives, appropriate NGOs, and
academic experts, and should adhere to “best practice” processes outlined in
international human rights instruments.
Decisions about operations should respect the results of genuine consultation processes with the local communities. Such consultation should follow a process satisfactory to and designed in cooperation with LEMASA and/or representatives of other affected local communities. The company should demonstrate a genuine “political will” to improve its consultation process with local communities by hiring well-qualified and trained staff in its community affairs department and giving that department a real say in the company’s overall operations in the area.
Freeport should make revisions to its Social & Human Rights Policy that would (1) protect employees and non-employees who report human rights violations; (2) establish internal reporting procedures that will ensure this protection; and (3) inform all employees about these procedures fully and on a regular basis. The company should also report credible accusations of human rights violations to the appropriate government authorities as well as to local and international human rights organizations.
The Freeport Social & Human Rights Policy should also include a plan for evaluation, including assessments by independent groups, and improvement of implementation. Freeport should strengthen its internal mechanisms for monitoring and reporting on human rights concerns. The company’s compliance record with the Social & Human Rights Policy should be documented and made publicly available.
The Indonesian military presence in Papua has been a
significant factor in the serious human rights violations that have taken place
in the area. In order to prevent future
atrocities, the Government of Indonesia should undertake critical reforms of
the military including (1) instituting meaningful civilian control over the
armed forces; (2) effectively changing the mandate to defending the country’s
borders rather than providing internal security; (3) making the military budget
transparent; and (4) ending impunity for those responsible for past human
rights violations.
The Government of Indonesia should adopt and ratify
the primary international human rights conventions, including the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights.
The Government should also ratify International Labour Organization
Convention 169 concerning Indigenous and Tribal Peoples and implement “best
practices,” as set forth in that instrument and the draft Declaration on the
Rights of Indigenous Peoples, in its economic development policies. Government programs and policies should be
focused on sustainable development and respect for the rights of the Amungme,
Kamoro, and other indigenous peoples who are or could be affected by mining in
Papua. Respected local community
leaders—including women, farmers, fisher folk, students and other key sectors
of society—should play a central role in dialogue about appropriate programs
and policies.
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Independent Human Rights Assessment
PT Freeport Indonesia Contract of Work Areas
The Robert F. Kennedy Memorial Center for Human Rights
(“RFK Center”), the Indonesian Legal Aid Foundation (YLBHI) and the Institute
for Human Rights Study and Advocacy (ELSHAM) –
in conjunction with Indonesia’s National Commission on Human Rights
(Komnas HAM) and international experts – will organize and conduct a human
rights assessment in the Irian Jaya district of Mimika, the location of the
Grasberg mine, owned and operated by PT Freeport Indonesia, a subsidiary of the
US‑based mining company Freeport-McMoRan Copper & Gold Inc.
(“Freeport”).
The assessment is the result of a request by US
shareholders (the Interfaith Center on Corporate Responsibility and the Seattle
Mennonite Church) in Freeport – and is in keeping with the long-standing call
from local indigenous communities, as represented by the Amungme Tribal Council
(LEMASA) – for an independent human rights assessment. There have been prior human rights assessments
conducted by the Catholic Church of Jayapura (1995), Indonesia’s National
Commission on Human Rights (1995) and by Australian, United States and New
Zealand diplomats (1995 and later).
This assessment, which will result in a public report,
is intended to serve as the first independent human rights assessment to
examine: 1) conditions ‑‑ currently and historically ‑‑
in the area; 2) the impact of mining operations on local communities; and 3)
any company involvement in specific human rights violations.
The assessment is intended to advance processes of
conflict resolution between local communities and Freeport, and overall, to
contribute to initiatives by Komnas HAM, the Indonesian government and
Indonesian nongovernmental organizations to examine and address human rights
concerns in Irian Jaya and to promote peaceful dialogue. This undertaking also is intended to
strengthen the principles of transparency in business operations and access for
independent monitors. The assessment is
also designed to serve as a model to demonstrate how corporations can cooperate
with government agencies and human rights organizations to promote protection
of human rights within their spheres of influence.
A team of human rights
professionals and regional experts, working as a team coordinated by the RFK
Center, YLBHI and ELSHAM will carry out the assessment through a long-term,
multi-phase effort that will include a preliminary planning visit, followed by
field assessment scheduled to take place in late 1999/early 2000. The team will conduct the assessment based
on the protections guaranteed Indonesian citizens under Indonesian law and on
the human rights guidelines issued in December 1995 by the Indonesian Armed
Forces military commander for all soldiers and officers in the Kodam
VIII/Trikora (now Kodam XVII) regional command, which includes Irian Jaya. The team will also refer to the
internationally recognized human rights standards enshrined in the United
Nations Universal Declaration of Human Rights, which is considered under
international law to be binding on all states, and in other UN treaties,
declarations, principles and codes of conduct.
The team will carry out its field assessment in the PT
Freeport Indonesia COW A mining lease area, its principle project support area
(including Timika) and in areas that have been part of the company’s
exploration concession (COW B).
In addition to interviews with members of the Amungme,
Kamoro and other local communities resident in the area, the team plans to
participate in related meetings in Jayapura and Jakarta with members of
Indonesian civil society and the Indonesian government, Freeport management and
staff, and other individuals who are in a position to inform the team’s
assessment.
Freeport has agreed formally to cooperate with the
team to accomplish assessment activities in the company’s COW areas and has
indicated its agreement in two letters to Indonesia’s Director General of
Mines. Tom Beanal, Chair of LEMASA, and
other local community members have welcomed the independent human rights
assessment as have Irian Jaya’s three main Christian churches (GKI, GKII and
the Catholic Church). The United States
Department of State has also communicated formally its support for the
assessment to Indonesia’s Minister of Foreign Affairs. The Dutch bank ABN AMRO, a primary financier
of Freeport’s Irian Jaya operations, has also called for an independent
assessment of the mine’s social and environmental impact.
Appendix A
Terms of Reference (Bahasa
Indonesia)
Acuan Asesmen Independen Hak Asasi Manusia
Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI),
Lembaga Study dan Advokasi Hak Asasi Manusia (ELS-HAM) dan Robert Kennedy
Memorial Center for Human Rights (RFKMCHR) berkerja sama dengan Komnas HAM,
organisasi-organisasi HAM Indonesia dan pakar-pakar internasional untuk
menyelenggarakan suatu asesmen di HAM di Kabupaten Mimika-Irian Jaya, yaitu di
lokasi penambangan Grasberg, yang dimiliki dan dikelola oleh PT. Freeport
Indonesia, suatu anak perusahaan pertambangan Amerika Serikat yaitu Freeport
McMoRan Copper and Gold, Inc. (“Freeport”).
Kegiatan asesmen ini merupakan hasil permintaan dari
para pemegang saham Freeport di Amerika (The Interfaith Center on Corporate
Responsibility dan The Seattle Menonite Church), dan permintaan masyarakat adat
setempat yang diwakili oleh Lembaga Musyawarah Adat Suku Amungme (LEMASA),
sebagai suatu asesmen Hak Asasi Manusia yang independen. Sebelumnya sudah ada
asesmen Hak Asasi Manusia yang diselenggarakan oleh Gereja Katolik Irian Jaya
(1995), Komnas HAM (1995) dan oleh diplomat-diplomat Australia, Amerika Serikat
dan Selandia Baru (1995 dan setelahnya).
Asesmen ini, hasilnya yang akan dimuat dalam suatu
laporan terbuka, sebagai asesmen Hak Asasi Manusia yang independen dan yang
akan memperhatikan: (1) kondisi wilayah tersebut, baik sebagaimana adanya
sekarang ini maupun dari segi sejarahnya; (2) dampak operasi-operasi
penambangan terhadap masyarakat-masyarakat setempat; dan (3) keterlibatan
perusahaan dalam pelanggaran HAM.
Asesmen ini bertujuan pada khususnya untuk mendukung
proses penyelesaian konflik antara masyarakat lokal dengan Freeport, dan pada
umunya untuk mendukung langkah-langkah yang sudah dimulai oleh Komnas HAM,
pemerintah Indonesia dan LSM-LSM Indonesia dalam memperhatikan dan menyatakan
kepedulian pada HAM di Irian Jaya untuk mendorong dialog yang bersifat damai. Proses ini juga ditujukan
untuk memperkuat prinsip-prinsip transparansi dalam kegiatan perusahaan dan
membuka akses bagi pemantau independen. Asesmen ini juga dirancang untuk
digunakan sebagai suatu model untuk memperlihatkan bahwa perusahaan-perusahaan
bisa bekerja sama dengan lembaga-lembaga pemerintah dan organisasi-organisasi
HAM untuk menggalakan perlindungan HAM dalam cakupan pengaruh mereka.
Suatu tim yang terdiri
dari para profesional di bidang HAM dan para pakar regional yang dikoordinasi
oleh YLBHI, ELS-HAM dan RFKMCHR, akan melaksanakan asesmen melalui suatu kerja
jangka panjang dalam beberapa tahap yang akan meliputi tahap kunjungan
penjajakan awal dan diikuti dengan asesmen lapangan yang dijadwalkan akan
dilaksanakan akhir 1999/awal 2000. Tim ini akan melaksanakan asesmennya
berdasarkan hukum Indonesia yang
memberikan jaminan perlindungan bagi warga Indonesia dan pada petunjuk
pelaksanaan HAM yang dikeluarkan oleh panglima TNI pada Desember 1995 yang
diperuntukan bagi seluruh prajurit dan pejabat di lingkungan Kodam VIII/Trikora
(sekarang Kodam XVII), yang juga meliputi Irian Jaya. Tim ini juga akan merujuk
pada standar-standar HAM internasional yang tercantum dalam deklarasi Universal
HAM, yang diangkat oleh hukum internasional sebagai suatu norma yang mengikat
seluruh negara, dan dalam traktat-traktat, deklarasi-deklarasi, prinsip-prinsip
dan ketentuan pelaksanaan PBB lainnya.
Tim ini akan melaksanakan
asesmen lapangan di areal penambangan PT. Freeport Indonesia, yaitu di areal
pendukung proyek utama, termasuk Timika (Areal Kontrak Karya A) dan areal-areal
lain yang termasuk areal konsesi eksplorasi perusahaan tersebut dan yang
termasuk dalam areal eksplorasi (Areal Kontrak Karya B) sekarang.
Selain mewawancarai
masyarakat Amungme, Kamoro dan masyarakat lain yang berdiam di areal tersebut,
tim ini merencanakan pula untuk bertemu dengan pemerintah Indonesia, staf
manajemen PT. Freeport, para wakil dari masyarakat (madani), dan orang-orang
lainnya yang bisa memberikan informasi untuk kegiatan Tim ini baik di Irian
Jaya, Jakarta maupun di tempat lain.
Freeport telah memberikan
persetujuan secara resmi untuk bekerja sama dengan Tim untuk menyukseskan
kegiatan asesmen ini di areal kontrak karyanya seperti telah dinyatakan dalam
dua suratnya kepada Direktur Jenderal Pertambangan RI. Tom Beanal, Ketua
LEMASA, dan anggota-anggota masyarakat lokal lainnya telah menyatakan menerima
dengan tangan terbuka atas kegiatan asesmen HAM ini, sebagaimana halnya juga
tiga organisasi Gereja utama di Irian Jaya (GKI, GKII, dan Gereja Katolik).
Departemen Luar Negeri Amerika Serikat juga telah mengkomunikasikan dukungannya
secara resmi kepada menteri Luar Negeri RI. Bank ABN/AMRO di Belanda, yang
merupakan penyandang dana utama bagi kegiatan Freeport di Irian Jaya juga telah
menghimbau adanya suatu asesmen independen untuk mengkaji dampak sosial dan
lingkungan penambangan ini.
Appendix A
Independent Human Rights Assessment
PT Freeport Indonesia Contract of Work Areas
Ms. Abigail Abrash – Consultant, Robert F. Kennedy Memorial Center for Human Rights
Dr. Chris Ballard – Research Fellow, Resource Management in Asia Pacific Project,
Research
School
of Pacific and Asian Studies, Australian National University
Dr. Stephanie Fried – Senior Staff Scientist, Environmental Defense Fund, and Fellow,
East-West
Center
Ms. Sophie Grig – Campaigns Officer, Survival International
Mr. John Rumbiak – Supervisor, Institute for Human Rights Studies and Advocacy,
Jayapura
Brother Theo van den Broek, OFM – Director, Office of Justice and Peace, Catholic
Diocese
of
Jayapura
Mr. Bambang Widjojanto – Chairperson, Indonesian Legal Aid Foundation
Appendix A
Independent Human Rights Assessment
PT Freeport Indonesia Contract of Work Areas
Ms. Abigail Abrash – Ms. Abrash is a consultant to the Robert F. Kennedy Memorial Center
for Human Rights, where she served as Program Director for Asia and the Middle
East from 1993 to 1999. Since
1988, Ms. Abrash has worked as a human rights researcher, trainer,
advocate and educator with institutions including James Madison University and
the International Human Rights Law Group.
She has conducted in-depth, human rights fact-finding missions to
Indonesia and reported on concerns relating to the human rights impact of
development projects there, including PT Freeport Indonesia’s mining operations
in Papua. Her public speaking on human
rights issues in Indonesia includes media interviews with the Australian
Broadcasting Corporation, National Public Radio, and “The NewsHour with Jim
Lehrer.” In June 1999, Ms. Abrash
served as an election observer in Papua with the National Democratic Institute
for International Affairs and the Carter Center. Ms. Abrash is a graduate of the University of Pennsylvania and
the London School of Economics and Political Science.
Dr. Chris Ballard – Dr. Chris Ballard is a Research Fellow in the project
on Resource Management in Asia‑Pacific, located in the Research School of
Pacific and Asian Studies, of the Australian National University, Canberra. He
has conducted field research on agricultural systems, oral history, and the
relationships between mining companies and local communities in Papua New Guinea
and Indonesia since 1984, spending a total of some 5 years living with village
communities. He has been involved since 1994 in assisting the Amungme and
Kamoro communities of Papua to arrive at an equitable agreement with the mining
company PT Freeport Indonesia.
Dr. Stephanie Gorson Fried
– Stephanie Fried, Ph.D., is a senior
scientist and Asia specialist at the Environmental Defense Fund, a non‑profit
organization with more than 300,000 members. Dr. Fried is also a Fellow at the
East West Center, which was established by the US Congress in 1960 to promote
better relations and understanding between the peoples of the United States and
the Asia‑Pacific region. Twice a
Fulbright Scholar, she has conducted research on development, forestry,
agriculture, indigenous systems of resource management, and human rights in
Indonesia since 1985. Fluent in
Indonesian, she has lived and worked in Indonesia for more than five years,
including relatively remote sites in the Outer Islands. Dr. Fried has conducted research, training,
and/or given lectures in Indonesia under the sponsorship of the Ministry of
Forestry, Mulawarman University/GTZ, Udayana University, Bappeda/GTZ, Gadjah
Mada University, World Wildlife Fund, the Ford Foundation, and the Center for
International Forestry Research (CIFOR).
Ms. Sophie Grig – Ms. Grig has worked, since 1995, as a campaigns officer
with Survival International, a worldwide organization supporting tribal peoples.
Ms. Grig, who holds a postgraduate degree in Anthropology from Cambridge
University, has conducted field work research with tribal peoples in South
America and Asia, including Indonesia, and for four years has directed Survival
International’s work regarding human rights concerns affecting tribal peoples
in Papua.
Mr. John Rumbiak – Mr. Rumbiak serves as supervisor of the Institute
for Human Rights Studies and Advocacy in Jayapura. He has worked on community development and human rights issues in
Papua for more than a decade, including serving on the staff of Papua’s Rural Community
Development Foundation (Yayasan Pengembangan Masyarakat Desa or
YPMD). A recent graduate of Columbia
University’s Human Rights Advocates Program, Mr. Rumbiak also holds a degree
from Universitas Cenderawasih. He has
lectured and written extensively on the situation of indigenous people in
Papua, including communities living in and around the project area of PT
Freeport Indonesia.
Brother Theo van den Broek, OFM ‑ Mr. van den Broek serves as Director of the
Catholic Diocese of Jayapura’s Office of Justice and Peace. A member of the Franciscan religious order,
he holds a degree in Non-Western Sociology from Rijks Univesiteit Leiden in the
Netherlands and has lived and worked in Papua since 1975. Mr. van den Broek has specialized in
socio-economic development work, including a special focus on the problems of
relations between PT Freeport Indonesia and the indigenous communities in and
around the mining area. He has authored
or contributed to several major reports concerning human rights issues in
Papua, including “Violations of Human Rights in the Timika Area of Irian Jaya,
Indonesia,” published by the Catholic Church of Jayapura in
August 1995, and the Timika notes series of 1996.
Mr. Bambang Widjojanto – Mr. Widjojanto serves as chairperson of the
Jakarta-based Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum
Indonesia or YLBHI). Mr.
Widjojanto, a lawyer, previously worked for YLBHI as Operations Director and
served for seven years as director of the organization’s Papua branch office. Honored with the 1993 Robert F. Kennedy
Human Rights Award for his defense of the rights of Papua’s indigenous
communities, Mr. Widjojanto has also represented high-profile civil and
political rights cases, including victims of torture and disappearance.
Examples of Human Rights Violations
In addition to individual cases of killings and
torture detailed in already published human rights reports referenced elsewhere
in this document, there are solid and credible reports that other such
violations have occurred within the COWs.
One example is the killing of Amungme community member
Naranebalan Anggaibak. According to
eyewitness accounts, Indonesian troops opened fire with live ammunition on
Amungme and other highland Papuans as indigenous community members gathered
peacefully at dawn on Christmas Day, 1994, to raise the Morning Star flag. Mr. Anggaibak was injured in the military
attack. Putting a noose around his
neck, Indonesian military personnel tied Mr. Anggaibak to the back of a car and
dragged him to the Army checkpoint near the Amungme village of Banti and the
Freeport mining town of Tembagapura.
Mr. Anggaibak was dead upon arrival, and military personnel suspended
his body from the ankles on a post across from the checkpoint. Soldiers proceeded to heckle indigenous
villagers who passed by the checkpoint—and Mr. Anggaibak’s body—on their way to
church services, asking community members whose dog, whose pig Mr. Anggaibak
was. The military also refused to allow
Mr. Anggaibak’s relatives to bury his corpse. The military reportedly disposed
of his body by throwing it into a ravine along the road between Tembagapura and
Timika, where the military has also thrown the corpses of other indigenous
Papuans killed by soldiers. Source: Dr.
Chris Ballard, “The Signature of Terror: Violence, Memory and Landscape at
Freeport,” in Inscribed Landscapes: Marking and Making Place, ed. Bruno
David and Meredith Wilson (Honolulu: U of Hawaii Press, 2001).
Rape
According to LEMASA, Indonesian soldiers from
Battalion 732 raped five Papuan women in Agandi and Hoea in June 1995. Source: LEMASA, “The Amungme Tribal
Council’s Resolution on the 50th Anniversary of the Universal
Declaration of Human Rights and its Implementation on Papuan Soil (Timika:
December 10, 1998).
According
to newspaper reports, Amungme community leader Yosepha Alomang has also
testified to rapes and killings by Indonesian soldiers: “When I was a teenager
I saw armed strangers come to my village, killing my parents and the local
population. In fact, men in green uniforms raped me. Now, I know they were
soldiers.” Source: “Timika: Where’s Mama?” Tempo, Regions No. 27/I
(13-19 March 2001).
The
UN Special Rapporteur on Violence Against Women, Radhika Coomaraswamy,
concluded in her report to the UN Commission on Human Rights that Indonesian
security forces had used rape “as an instrument of torture and intimidation” in
Papua. The Special Rapporteur cited some of the cases referenced above and recommended
that “a thorough and impartial investigation into the use of rape as a method
of torture and intimidation by the military in Irian Jaya is imperative.” Source: Radhika Coomaraswamy, “Mission to
Indonesia and East Timor on the Issue of Violence Against Women: Report of the
Special Rapporteur on Violence Against Women, its Causes and Consequences,” UN
Economic and Social Council, E/CN.4/1999/68/Add.3 (January 21, 1999).
Restrictions
on Freedom of Movement
Local indigenous community members who seek to go to
and from Amungme villages in the mountains near Tembagapura and Timika have
been required to obtain travel permits signed by the village head (kepala
desa), the village military commander, and Kopassus officers. Security forces have blocked local access by
Amungme within the COW areas—including access to community gardens and forest
areas used for hunting and collection of traditional housing materials and
medicines.
Indonesian security forces have also blocked
international travel by members of the Amungme community. For example, in May 1998, Indonesian
security forces barred Ms. Alomang from traveling to London, where she was
scheduled to speak about human rights abuses and other problems at Freeport to
Rio Tinto shareholders and management at the company’s Annual General
Meeting. Source: Survival
International, “Rio Tinto Critic Gagged” (London: Survival International, May
1998).
Interference with Access to Legal Representation
In September 1996, Indonesian police in Papua deported
and blacklisted US-based attorney Martin J. Regan, prohibiting him from meeting
in Timika with his clients, Amungme community leaders Tom Beanal and Yosepha
Alomang. Sources: Personal communication with M.J. Regan; and Robert Bryce,
“Plaintiffs in Freeport Suit Are Harassed,” Austin Chronicle, 27
September 1996. In addition, according
to an August 1996 report from LEMASA, the Indonesian Armed Forces “forcefully
took away the claim forms (against Freeport) signed by the indigenous people of
Timika for their attorney, Martin Regan, in New Orleans.” The report explains that the military and
police took the forms from a LEMASA staffperson and refused to return the
documents, despite the staffperson’s insistence that the claim forms were legal
and that it was the peoples’ right to sue Freeport. According to an eyewitness quoted in the report, the military
commander said it was necessary to study the documents to determine whether or
not they “relate to any political activity.”
LEMASA also states in the report that “Freeport
cooperates with the Indonesian Armed Forces (ABRI) and government to terrorise,
intimdate, divide and conquer the indigenous people of Timika. Those various human rights abuses done by
Freeport and its agents are aimed at threatening the indigenous peoples so that
they’re afraid and will withdraw (stop) their lawsuit claim agains the American
gigantic mining company and will accept the One Percent Turst Fund offered by
the company which was already rejected by the people.” Source: LEMASA, “The Indonesian Armed Forces
in Timika Forcefully Took Away the People’s Document” (Timika: 14 August 1996).
Forced Resettlement of Communities
In addition to persistent and sporadic assaults on individuals by the
Indonesian military, the Amungme and Kamoro have experienced a series of
large-scale attacks on their communities.
These incidents have included the military’s 1977 strafing and
occupation of Akimuga village; its destruction of Kwamki village and of
settlements in the Wa Valley, including Banti; the 1980 forced relocation of
highland communities to the lowland village of Kwamki Lama, a move that
reportedly resulted in the malaria deaths of 216 children; the 1993 forced
relocation of Kamoro from Keraka island; and 1994 military operations at Tsinga
and Hoea villages. The UN Commission on
Human Rights has stated unequivocally that the “practice of forced eviction
constitutes a gross violation of human rights, in particular the right to
adequate housing.” Sources: UNCHR
Resolution 1993/77; “Forced Evictions and Human Rights,” Fact Sheet No. 25,
Centre for Human Rights, UN Office at Geneva, GE.96-16191-May 1996-14,895.
[1] The territory of Papua has been known by many names: West New Guinea or Netherlands New Guinea (under Dutch colonial administration); West Papua (the name selected in 1961 by elected Papuan representatives and used today by most Papuans); West Irian (under initial Indonesian rule); Irian Jaya (the official Indonesian name from 1973 until January 7, 2002); and Papua (the current official Indonesian name). In the interest of simplicity, “Papua” will be used throughout this piece.
[2] Freeport is a subsidiary of Freeport-McMoRan, a
minerals-extraction company headquartered in New Orleans, Louisiana, USA. PTFI is the Indonesian subsidiary of
Freeport and is headquartered in Jakarta, Indonesia. Freeport’s board of directors or their supporters control more
than 50% of the company’s outstanding stock.
[3] See the attached Terms of Reference and list of Team Members, Appendix A.
[4] Freeport has not provided documents that the RFK Center requested in writing in August 1999 and again in February 2000. In addition, Freeport objected to the assessment team’s composition and the Terms of Reference.
[5] PTFI’s Executive Vice President for Government Relations Prihadi Santoso and Vice President for Communications Yuli Ismartono.
[6] Team members later learned from credible confidential sources within Komnas HAM, the US Embassy, and Freeport itself that Freeport management was directly responsible for the provincial police action.
[7] Dr. Chris Ballard, a member of the original independent assessment team, refers to the company personnel’s position as one of “a will to ignorance.” See C. Ballard, “The Signature of Terror: Violence, Memory and Landscape at Freeport,” in Inscribed Landscapes: Marking and Making Place, ed. Bruno David and Meredith Wilson (Honolulu: U of Hawaii Press, 2001); and C. Ballard, “Performing Violence: an anatomy of terror at Freeport” (unpublished paper, delivered to the “Seminaire sur la Violence Coloniale,” SHADYC-CNRS, La Vieille Charite, Marseille, France).
[8] The Amungme community numbers an estimated 4,287 people, living primarily in the towns of Timika and Akimuga and in dozens of rural hamlets throughout the valleys of the Jayawijaya mountain range’s southern slopes. The Kamoro community residing within the COW areas numbers roughly 8,000 people.
[9] Researchers at the Australian National University and Cenderawasih University estimate that the number of Kamoro people living in the area at the time of Freeport’s arrival was at least 947. They estimate that, in 1961, Kamoro represented 97% of the Mimika district population; in 1997, it is estimated that Kamoro represented just 15% of the district’s population.
[10] For an authoritative history of the Amungme and Kamoro peoples,
including their interactions with these outsiders, see “Final Report: Amungme
Baseline Study,” UNCEN-ANU Baseline Studies Project (Universitas Cenderawasih
and the Australian National University, 1998); and “Final Report: Kamoro
Baseline Study,” UNCEN-ANU Baseline Studies Project (Universitas Cenderawasih
and the Australian National University, 1998), respectively. The reports also discuss relations between
the Kamoro, Amungme, and Freeport at the time of the company’s arrival. For a detailed presentation of Amungme history,
culture, governance and social structures, economy, religion, and traditional
laws, see Tom Beanal, “Amungme: Magaboarat Negel Jombei-Peibei” (Jakarta:
Indonesia Forum for Environment/WALHI, 1997).
For a discussion of Freeport’s appropriation of Kamoro and Amungme lands
and the cultural, economic, and spiritual significance to these communities of
the natural environment, see John J. Rumbiak, “Regarding Disaster on the Land of the Amungme
and Kamoro: The Suppression and Expropriation of Customary Land Rights behind
Freeport’s Advancement” (unpublished manuscript, 1995).
[11] See, for example, section on transmigration in Bruce Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment, and the Crisis of Development (Boston: Beacon Press, 1994), 34-38.
[12] Common Article 1, International Covenant on Economic,
Social and Cultural Rights, UN General Assembly, Resolution 2200A (XXI),
adopted 16 December 1966, entry into force 3 January 1976; and International
Covenant on Civil and Political Rights, UN General Assembly, Resolution 2200A
(XXI), adopted 16 December 1966, entry into force 23 March 1976.
[13] The establishment of the New Guinea Council was an
integral part of the Dutch government’s Ten-Year Development Plan for
then-Netherlands New Guinea. The
Ten-Year Plan was designed with the intention of “creating the conditions for
realization of the objective of self-government and self-determination (independence)
as quickly and as effectively as possible.”
It focused on what the Dutch government termed “political emancipation”
for Papuans and in addition to the establishment of the New Guinea Council
included, among other objectives, an increase of Papuan civil servants from 52%
in 1960 to 95% in 1970 and a doubling of the number of training schools for
village teachers. See “Papuans building
their future” (Information Department of the Netherlands Ministry for the
Interior, 1961), 17, 23.
Dutch sovereign H.M. Queen Juliana stated in a September 20, 1960 speech that “[i]n the coming year Netherlands New Guinea will enter an important new phase in its development towards self-determination. For as soon as the New Guinea Council, which will consist in the main of representatives of the native population, has been set up, administration and legislation will be possible only with its cooperation.” Ibid., title page.
[14] Under the New York Agreement’s Article XVIII, consultations with representative councils were to be used to determine the appropriate methods “for ascertaining the freely expressed will of the population.” All adults (male and female) were eligible to participate in the act of self-determination, which was “to be carried out in accordance with international practice.” Agreement between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea (West Irian), UN Treaty Series, No. 6311, 1962.
[15] The UN Representative, mandated to “advise, assist
and participate in arrangements which are the responsibility of Indonesia for
the act of free choice,” proposed that “‘one man, one vote’ should be used in
the urban areas . . . complemented by collective consultations in the less
accessible and less advanced areas of the interior.” “Report of the Secretary
General Regarding the Act of Self-Determination in West Irian,” UN Doc. A/7723,
6 November 1969, Annex 1 para. 9, 82.
[16] Ibid., para. 251.
[17] John Saltford, “United Nations Involvement with the Act of Self-Determination in West Irian (Indonesian West New Guinea) 1968 to 1969,” Indonesia 69, April 2000.
[18] “Report of the Secretary General,” para. 141, 143.
[19] Saltford.
[20] “Report of the Secretary General,” para. 172.
[21] Ibid., para. 182. For further discussion of the UN’s role in the Act of Free Choice, see, for example, Saltford; Robin Osborne, Indonesia’s Secret War: The Guerilla Struggle in Irian Jaya (Sydney: Allen & Unwin, 1985); and William Henderson, West New Guinea: The Dispute and Its Settlement (South Orange, NJ: Seton Hall UP, 1973).
[22] International law expert Antonio Cassese presents this analysis of Papuan self-determination, with references to numerous other analyses by Rigo Sureda, Thomas Franck, Michael Pomerance, and others. See A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge, UK: Cambridge UP, 1995). For contemporary Papuan perspectives, see, for example, the statement of the Team of 100, “Political Communique from the People of West Papua to the Government of the Republic of Indonesia,” 26 February 1999; and the resolutions of the Second Papuan People’s Congress, June 2000.
[23] Suharto, a major private investor in PTFI and one of
only a few Indonesians to hold shares in the company, was the commander of
Operation Mandala, the Indonesian Armed Forces’ 1962 plan to mount a full-scale
invasion of Papua in order to “liberate” it from the Dutch. A mutually supportive relationship has
reportedly existed between Freeport and the Suharto regime. The nature of this relationship is detailed
by journalist Peter Waldman in “Hand in Glove: How Suharto’s Circle and a
Mining Firm Did So Well Together,” Wall Street Journal, 29 September
1998, A1.
[24] Asia Watch, “Indonesia: Impact of US Involvement in 1965” (New York: Asia Watch, 1990).
[25] George A. Mealey, Grasberg: Mining the Richest and Most Remote Deposit of Copper and Gold in the World, in the Mountains of Irian Jaya, Indonesia (New Orleans: Freeport-McMoRan Copper & Gold Inc., 1996), 84.
[26] See, for example, testimony of Ms. Yosepha Alomang before the U.S. House of Representatives Committee on International Relations, Briefing on Human Rights in Indonesia and East Timor: Hearing before the Subcommittee on International Operations and Human Rights, 106 Cong., 1st sess., 1999.
[27] Contract of Work Dated 7 April 1967 Between Indonesia
and Freeport Indonesia, Incorporated: Decision of the Cabinet Presidium, No.
82/E/KEP/4/1967 (Jakarta: Direktorat Pembinaan Pengusahaan Pertambangan, 1967),
Article 2, para. (d).
[28] Ibid., para. (e).
[29] “In recognition of the added burdens and expenses to
be borne by the Company and the additional service to be performed by the Company
as a result of the location of its activities in a difficult environment, the
Government recognizes that appropriate arrangements may be required to minimize
the adverse economic and operational costs resulting from the administration of
the laws and regulations of the Government from time to time in effect, and in
construing the Company’s obligations to comply with such laws and
regulations.” Contract of Work between
the Government of the Republik of Indonesia and PT. Freeport Indonesia Company
(1991), Article 18, para. 8.
The Basic Law No. 11 of 1967 and its corollary legislation do not specifically regulate environmental preservation. Regulations related to environmental protection in the mining sector came into force only in the 1990s. See, for example, Regulations issued by the Minister of Mining or the respective Director-General, related to the Governmental Order No. 5 of 1993 on Environmental Impact Studies (Amdal); the Decision by the Minister for Mining and Energy No. 1211.K/008/M.PE/1995 on Curbing and Reducing with Environmental Pollution and Destruction by the Activities of General Mining Companies; Governmental Order No. 20 of 1990 on Controlling Water Pollution; and the Governmental Order No. 19 of 1994 on Waste Management. See also World Wide Fund, “A Legal Analysis of Mining Activities in the Area of Lorentz National Park, Irian Jaya” (Jakarta: Indonesian Centre for Environmental Law, 1997).
[30] In addition to blocking the RFK/YLBHI/ELSHAM independent assessment, Indonesian authorities have also barred entry to Papua by the UN Special Rapporteur on Violence Against Women (November-December 1998) and the UN Working Group on Arbitrary Detention (January-February 1999) during their respective visits to Indonesia and East Timor. The UN investigators’ findings are presented in Radhika Coomaraswamy, “Mission to Indonesia and East Timor on the Issue of Violence Against Women, Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences,” UN Economic and Social Council, E/CN.4/1999/68/Add.3 (21 January 1999); and “Report of the Visit of the Working Group to Indonesia (31 January to 12 February 1999),” UN Working Group on Arbitrary Detention, UN Economic and Social Council, E/CN.4/2000/4/Add.2 (5 July 1999). In January 2002, Indonesian authorities expelled two Amnesty International researchers from Papua. In February 1997, Indonesian authorities deported and blacklisted US-based human rights activist Danny Kennedy while he was conducting a fact-finding visit on behalf of Project Underground, a US-based human rights organization.
[31] Paul Murphy, Vice-President of Freeport Indonesia,
quoted in Matt Richards, “Freeport in Indonesia: Reconciling Development and
Indigenous Rights,” Report on a Public Forum at the Gorman House Arts Centre,
ed. Pat Walsh and Sharmini Sherrard (Canberra: Australian Council for Overseas
Aid, 1996), 12.
[32] In a March 8, 1996 letter to then-US Assistant Secretary of State for Asia and the Pacific Ambassador Winston Lord, the RFK Center requested a copy of the US Embassy’s report, which was written by the Embassy’s Economic Counselor and not its Human Rights Officer. The request was denied. In a written response dated April 8, Ambassador Lord stated that “we have reviewed the report and have decided that it should not be released, even in edited form.”
[33] See Catholic Church of Jayapura,
“Violations of Human Rights in the Timika Area of Irian Jaya, Indonesia”
(1995); Indonesian Evangelical Church (Mimika, Irian Jaya), the Catholic Church
Three Kings Parish (Timika, Irian Jaya), and the Christian Evangelical Church
of Mimika, “Human Rights Violations and Disaster in Bela, Alama, Jila and
Mapnduma” (1998); RFK Center for Human Rights and the Institute for Human
Rights Studies and Advocacy, “Incidents
of Military Violence Against Indigenous Women in Irian Jaya (West Papua),
Indonesia” (Washington/Jayapura: 1999); LEMASA, “The Amungme Tribal Council’s
Resolution on the 50th Anniversary of the Universal Declaration of
Human Rights and its Implementation on Papuan Soil” (Timika: 10 December 1998);
Survival International, “Rio Tinto Critic Gagged” (London: Survival
International, 1998); Robert Bryce, “Plaintiffs in Freeport Suit Are Harassed,”
Austin Chronicle, 27 September 1996; and LEMASA, “The Indonesian Armed
Forces in Timika Forcefully Took Away the People’s Document” (Timika: 14 August
1996); and “Timika: Where’s Mama?” Tempo, Regions 27/I (13-19 March
2001).
[34] These killings appear to have been linked with Amungme resistance to Freeport’s fencing off of the Nemang Kawi (Ertsberg) area during exploitation of the mineral reserves there. ELSAM, INFID, LPPS and WALHI, “Negotiation Process Between the Irianese Tribes with James R. Moffett, CEO of Freeport-McMoRan Copper & Gold at Sheraton Hotel” (Timika: 14 March 1996).
[36] Until 1999, the Indonesian Armed Forces (Angkatan Bersenjata Republik Indonesia or “ABRI”) incorporated traditional military and police functions. The armed forces’ name was changed to the Indonesian National Army (Tentara Nasional Indonesia or “TNI”) in 1999 when the police were transferred to civilian control.
[37] “The Role of the Indonesian Military in Irian Jaya, The Transmigration of Millions of Javanese Settlers to Irian Jaya, and Why the Issue is so Problematic for Australian Foreign Policy,” Background Briefing Transcript (Parliament of the Commonwealth of Australia, Department of the Parliamentary Library, 18 September 1983), 7.
[38] “Final
Report: Amungme Baseline Study,” Appendix V.
[39] See statement by Paul Murphy in Richards, 14.
[40] Lesley McCulloch, “Trifungsi: The Role of the Indonesian Military in Business,” presented to The International Conference on Soldiers in Business: Military as an Economic Actor (Jakarta: Bonn International Center for Conversion, 2000), 29.
[44] See interview with Terry Doyle in “The Role of the Indonesian Military in Irian Jaya,” 12-13.
[45] See, for example, Seattle Mennonite Church Freeport-McMoRan Shareholder Resolution: Freeport-McMoRan Copper and Gold Inc., 20 February 1997. Among other actions, shareholders called on Freeport management to “end company cooperation with the Indonesian military as soon as legally possible so that PT-FI does not provide food, transportation or shelter to Indonesian military personnel.”
[47] Ibid.
[48] Komnas HAM called on the Indonesian government and the military to investigate the human rights violations that it had identified and to prosecute those responsible; the Commission also recommended government compensation to the victims and their families. At the time of writing, Indonesian authorities have carried out investigations and prosecutions with regard to only one of the confirmed incidents, and no victims have received compensation.
[49] National Human Rights Commission of Indonesia, “Results of Monitoring and Investigating of Five Incidents at Timika and One Incident at Hoea, Irian Jaya During October 1994-June 1995” (Jakarta, 1995). In addition, commissioners involved in the investigation have called it incomplete for failing to examine involvement in the violations by Freeport itself. See “Freeport’s Involvement has not yet been Investigated,” Kompas, 2 October 1995 (English translation of original in Bahasa Indonesia; source: TAPOL).
[50] See statement of Paul Murphy in Richards, 12.
[51] See Voluntary Principles on Security and
Human Rights, December 2000, in particular, section regarding Interactions
between Companies and Public Security: “In cases where there is a need to
supplement security provided by host governments, Companies may be required or
expected to contribute to, or otherwise reimburse, the costs of protecting
Company facilities and personnel borne by public security. While public security is expected to act in
a manner consistent with local and national laws as well as with human rights
standards and international humanitarian law, within this context abuses may
nevertheless occur.” The voluntary
agreement also condones the provision of lethal equipment to public and private
security personnel; see section on Risk Assessment. The Voluntary Principles are available online at: http://www.icem.org/update/upd2000/secuhr.html.
[52] See Sudargo Gautama and Robert N. Hornick, An
Introduction to Indonesian Law: Unity in Diversity (Bandung, 1972). The authors illustrate the weakness of local
autonomy over land use: “The national government is always free, on behalf of
the national interest, to intervene and to dispose of the village’s community
land in some way other than that determined by the village. Thus, for example, the government is free to
clear forest areas on community land as part, say, of a national program to
encourage transmigration … The village’s adat right of disposal may not
be raised as an obstacle to national policy” (94).
[53] Henkin, Pugh, Schachter and Smit, International Law (1993) at 289 citing the O’Connell, State Succession in Municipal Law and International Law (1967) 101-141.
[54] See Todd
Howland, “Rael v. Taylor and the Colorado Constitution: How Human Rights
Law Ensures Constitutional Protection in the Private Sphere,” Denver Journal
of International Law & Policy 26 (1997), 1; and Richard D. Garcia and
Todd Howland, “Determining the Legitimacy of Spanish Land Grants in Colorado:
Conflicting Values, Legal Pluralism, and Demystification of the Sangre De
Cristo/Rael Case,” Chicano-Latino Law Review 16 (1995), 39.
Examples in US courts also demonstrate this idea. See United States v. Percheman, 32
U.S. 51, 88 (1833); Fisher v. Allen, 3 Miss. (2 Howard) 611 (1837); Tameling
v. US Freehold and Emigration Co., 93 U.S. (3 Otto) 644, 658 (1876); United
States v. Michigan, 653 F. 2d 277, 279 (6th Cir. 1981); People
v. LeBlanc, 248 N.W. 2d 199 (1976); and Lac Courte Oreilles Band of Lake
Superior Chippewa Indians v. Voight, 700 F.2d 341 (7th Cir.
1983).
[55] See 1982 Basic Provisions for the Management of the Living Environment, Act 4, article 5.
[56] Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, and the Harvard Law School Human Rights Program, “Research Report to the Assistant Secretary-General in Response to the Special Rapporteur on Human Rights and Environment” (1996), 14.
[57] The Indonesian military plays a critical role in the economy, relying on its private business interests for an estimated two-thirds of its annual budget. The military has not hesitated to acquire and protect its assets by force. A lieutenant commander of Indonesia’s elite, US-trained Kopassus special forces told a human rights investigator in Papua in 1998 that the military was carrying out operations in Papua’s Central Highlands “to make sure that investors can come in.” See RFK Center and the Institute for Human Rights Studies and Advocacy, “Incidents of Military Violence.”
[58] For further information concerning the subordination of the Indonesian judiciary to the executive and the military, see, for example, US Department of State, “Country Reports on Human Rights Practices: Indonesia” (Washington: US Government Printing Office, January 1997-2001), preface.
[59] Jamie Mackie and Andrew MacIntyre, “Politics,” in Indonesia’s New Order: The Dynamics of Socio-Economic Transformation, ed. Hal Hill (Honolulu: U of Hawaii Press, 1994), 1, 23.
[61] Commission on Human Rights et al, “Research Report to the Assistant Secretary-General.” See also Kylie Elston and Carol Warren, “Environmental Regulation in Indonesia,” Asia Paper No. 3 (Murdoch, Western Australia: U of Western Australia Press in association with Asia Research Centre, 1994).
[62] US Overseas Private Investment Corporation, Letter to Freeport-McMoRan Copper & Gold Inc. (Washington: 10 October 1995); Robert Bryce, “Rough times for OPIC,” Austin Chronicle, 21 February 1997.
[63] Kamoro community members from Negeripi and Nawaripi, “Protest Against Environmental Destruction and Rejection of Plans to Move People from their Tribal Lands” (Timika: 25 January 1997).
[64] Beanal, “Amungme,” 84, 120.
[65] Pieter Yan Magal, a member of LEMASA, quoted in Richards, 9.
[66] See, for example, Ballard, “Signature.”
[67] This type of action has been considered by courts to
be a violation of the right to life: “An equally important facet of that right
[to life] is the right to a livelihood because, no person can live without the
means of living, that is the means of a livelihood. If the right to a livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a person of his right
to life would be to deprive him of his means to a livelihood to the point of
abrogation. Such deprivation would not
only denude life of its effective content and meaningfulness but it would make
life impossible to live. There is thus
a close nexus between life and the means to a livelihood and as such that,
which alone makes it possible to live, leave aside what makes life liveable,
must be deemed to be an integral component of the right to life.” See Olga Tellis and Others v. Bombay
Municipal Corporation and Others, 3 SCC [Supreme Court of India] 545
(1985).
[68] LEMASA Board of Directors-Regents, Resolution
[rejecting PTFI One Percent Trust Fund Offer] (Timika: 29 June 1996). Community leaders cite the injury to local
populations caused by Freeport’s provision of monies through the One Percent
Offer, including the deaths of 18 indigenous people because of inter-ethnic
conflict sparked by the company’s disbursement of monies against the expressly
stated wishes of the local community.
[69] Brigham Golden quoted in Tim Dodd,
“Risky Business: Freeport Dances to a New Tune,” Australian Financial Review,
16 December 2000.
[70] Brigham Golden, “The Social Dynamics of the Bilogai
Region and the Impact of PT Freeport Indonesia: A Baseline Study” (1998).
[71] Dodd.
[72] “Irian Jaya MPs Accuse Mining Company of Disegarding Human Rights,” BBC Worldwide Monitoring, 3 April 2001. (Excerpted from report by Kompas Cyber Media website.)
[73] Michael Shari and Sheri Prasso, “Freeport-McMoRan: A
Pit of Trouble; Can the Miners Make Peace with Critics of its West Papua
Operation?” Business Week, 31 July 2000.
[74] According to Freeport filings with the US Security
and Exchange Commission, the consultancy contract with Ms. McDonald, which
consists of a $250,000 annual fee, began in November 1999 and will expire in
2002. Details are available online at http://www.sec.gov/edaux/formlynx.htm
under Freeport’s DEF filing, 22.
[75] RFK Center
and ELSHAM meeting with Gabrielle K. McDonald and Dr. David Lowry of Freeport,
14 June 2000.
[76] See footnote 37.
[77] Beanal v. Freeport-McMoRan Copper & Gold Inc. (a $6 billion lawsuit filed in US Federal District Court on 29 April 1996) and Alomang v. Freeport-McMoRan Copper & Gold Inc. (filed in the Louisiana state court system on 19 June 1996). The federal suit was not successful. The Louisiana State Supreme Court has upheld the right of Ms. Alomang to sue Freeport in Louisiana state court. However, Michael Bagneris, the New Orleans district court judge, dismissed the suit on 21 March 2000, on the grounds that the plaintiff had not proven that PT Freeport Indonesia is the “legal alter ego” of Freeport-McMoRan Copper & Gold Inc.
[79] Some of the most definitive and comprehensive statements by local communities are the LEMASA, “Amungme People’s Response to National Commission on Human Rights Findings Announced on 22 September 1995;” and a September 1997 statement submitted by LEMASA to Komnas HAM. That four-page document, entitled “The Opinion of LEMASA Concerning the Human Rights Situation and Prolonged Conflict in the Area of Operation of PT Freeport Indonesia, Mimika, Irian Jaya,” outlines in detail the communities’ concerns, identifying the causes of human rights and environmental problems and the sources of the conflict between local people and Freeport.
[80] While Indonesian courts may seem the logical arena for such legal questions, they may not be realistic avenues for redress given political interference with judicial independence (see footnote 56).