Instructions Not Included: International Law and the Story of the Timorese State

Phoebe Alpern (PO ‘20)

Against the grim track record of ethnic cleansing, sectarian violence, and unmitigated genocide that defined United Nations interventions of the 1980s and 90s, the UN mission in East Timor was a debatable success: a rapid mobilization that spawned a transparent democratic referendum, restored thousands of refugees to their homes, and embraced the promise of self-determination for the former Portuguese and Indonesian colony. Unfortunately, it failed to deliver on the project of nation-building that has characterized modern UN action­—a project whose realization is becoming increasingly remote. Richard Holbrooke, U.S. Permanent Representative to the UN, remarked bitterly on the relative success of the Timorese mission by commenting that the dreams of Roosevelt and Churchill had finally reached fulfillment, though “it only took twenty years, a staggering number of wasted lives, and pillaging and rampaging by the Indonesian military.”[1] But even the moderate success of this intervention would have been impossible without the guiding hand of international law, which both motivates and legitimizes cross-border humanitarian action. The use of international law in the question of East Timor informed the success of the initial military intervention and its later failure to develop a functioning state system, setting an unlucky pattern and an unfortunate precedent.

The relationship between international bodies of law and the self-determination of East Timor rests on five decades of General Assembly and Security Council resolutions, great power action, and an enduring colonial legacy. The earliest relevant doctrine is the foundational Declaration on the Granting of Independence to Colonial Countries and Peoples (DGICCP), adopted by the UN General Assembly in 1960. Though not legally binding, declarations of this sort “help develop customary law, given their consensual nature and the authoritative manner in which they interpret and elucidate principles of international law.”[2] For the first time, the UN emphatically condemned colonialism as not only economically constrictive, but also directly opposed to the interests of the international community at large. This stance reoriented the UN towards anticolonial thought and action which produced a series of subsequent resolutions. Following pursuant declarations on self-determination (including General Assembly resolutions 1541, 1654, and 2625), the UN next weighed in on East Timor at a particularly fractious time in the country’s history. In 1975, Portugal effectively relinquished administrative control of the island and its remaining colonial holdings in Africa as a result of a leftist coup. Almost immediately after this move toward decolonization, Indonesian military forces occupied East Timor and instigated a regime of violence, pseudo-colonial oppression, and flagrant human rights abuses that would last a quarter-decade. In response, the UN invoked its earlier Declaration on the Granting of Independence to Colonial Countries and Peoples in General Assembly Resolution 3485, which called for respect for self-determination and the immediate withdrawal of Indonesian military forces. This recommendation, in the grand tradition of responses to UN humanitarian claims, was effectively ignored, despite the General Assembly’s passage of anti-occupation resolutions every year between 1976 and 1982.[3] This pattern highlights the frustrating futility of the continual condemnation of territorial violations, especially in the case of Indonesia, whose invasion and subsequent occupation of East Timor violated both the principle of self-determination and the principle of non-aggression foundational to modern international law. Through the course of the Indonesian occupation, the fallibilities of international law are illustrated by the impunity of great power influence in a system that privileges large and wealthy states.

In this instance, the United States actively undermined the administration of international justice. William Burr and Michael L. Evans of the National Security Archive write that “the Indonesian invasion of East Timor in December 1975 set the stage for the long, bloody, and disastrous occupation of the territory.”[4] They also analyze documents that reveal just how simple it is for large and influential states to play an outsize role in determining the futures of smaller and more vulnerable lands. In early December of 1975, U.S. President Gerald Ford met with Indonesian President Suharto, who presented the idea of Timorese self-determination as “inviable” and pro-independence forces as “Communist-influenced,” playing on anti-Communist sentiment to generate U.S. support for an Indonesian takeover. Even more strikingly, U.S. powers all but endorsed Suharto’s invasion­—a flagrant violation of international law surrounding self-determination and territorial sovereignty. The night before Indonesian forces began their campaign of terror, President Suharto met with Gerald Ford and Secretary of State Henry Kissinger. On the topic of East Timor, he remarked, “We want your understanding if we deem it necessary to take rapid or drastic action,” to which President Ford cryptically responded, “We understand and will not press you on the issue. We understand the problems you have and the intentions you have.” The only major concern expressed by Kissinger in the meeting was the demand that “whatever you [Suharto] do succeeds quickly.”[5] This exertion of great power influence assured Indonesia that its takeover would be met with little resistance from the United States– and at times, when the United States turns a blind eye to injustice, so too does the international community, as the institutions of international law rely on its money and its vote. Up until the events of 1999, then a strong sense of cynicism overshadowed the efficacy and powers of international law, especially as residual colonial sentiments and great power interests collided a small and strategically insignificant battleground.

The ultimate test of international law as a determinant of East Timor’s future came almost 40 years after the UN’s initial Declaration, at a time when the UN was still reeling from the aftereffects of its actions and inactions most notably in Kosovo, Bosnia, and Rwanda. It had routinely failed to prove that its efforts to enforce peace and security, and to impose principles of good governance on failing states, could be successful at a time of particularly brutal ethnic and political violence. East Timor in September of 1999 was the UN’s chance to get it right after decades of disappointment. The devastating Indonesian occupation had led to an estimated 200,000 deaths in 20 years, a full fifth of East Timor’s population.1 When Indonesian regime change empowered a marginally sympathetic president, B.J. Habibie, the UN seized the opportunity to conduct an independence referendum under the auspices of UNAMET (United Nations Mission in East Timor). The results of the referendum strongly favored independence, but counteraction by Indonesian-funded anti-independence militias was rapid and violent­. Distinctively, however, the UN quickly mobilized in response.

James Traub, contributing writer for The New York Times Magazine, commented that “this was not only perhaps the swiftest response in the history of U.N. peacekeeping, but it was the first time in the post-Rwanda, post-Srebrenica era that the Security Council met an emergency head-on.”1 The UN’s peacekeeping operation was spearheaded by Australia, which “organized and led the International Force for East Timor (Interfet), with the role of restoring peace and security and facilitating humanitarian assistance operations.”[6] Interfet was established by Security Council Resolution 1264, which laid out its mandate while calling for cooperation and assistance from an unreliable Indonesian government.[7] This resolution refers to another component of the international legal framework surrounding East Timorese self-determination, 1999’s Agreement Between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor. This agreement lays out the transitional process from the oversight of the Portuguese and Indonesian governments to the authority of the United Nations mission, but it also highlights the durability of colonial sentiment. It is Portugal and Indonesia who formally agree to cede power to the United Nations, not the government of East Timor itself. Even in its newly inaugurated phase of anti-colonialism, the UN still recognized the necessity of negotiating between powers that had exerted authority in the past, not necessarily those to which it rightfully belonged. Article 6 of the agreement reflects this deeply unequal status quo, while demonstrating that the UN’s authority is merely a transitional measure meant to prepare East Timor to administer its own territory for the first time in modern history. It reads, in part, “The Secretary-General shall, subject to the appropriate legislative mandate, initiate the procedure enabling East Timor to begin a process of transition towards independence.”[8] This section of the Article reflects the changing nature of international law: from a prosecutorial and punitive tool to an instrument of nation-building. First, however, the newly minted Interfet was tasked with halting genocide.

The dual nature of the Interfet mission, deployed in September of 1999, included immediate humanitarian assistance followed by state-building. This forward-thinking structure informed the character and effectiveness of its forces from the beginning. Interfet was “conceptualized as a peace support operation because the military forces had to be able to move between traditional peacekeeping tasks (in order to facilitate conflict resolution and lay the groundwork for the interim administration) and peace enforcement tasks (in response to specific breaches of the peace by the militias).”[9] Upon their arrival in East Timor, Interfet troops “found the cities and towns deserted and their terrified populations hiding in the surrounding hills… once the towns were secured, patrols moved into the outlying areas gathering information for humanitarian aid organizations on population numbers, availability of food and whether there were any problems with the militias.”[10] Interfet operations, attempting to adhere to the dual strictures of its mandate as laid out in Resolution 1264, was both militarily advanced and competent in humanitarian communication. These skills, according to Major-General Peter Cosgrove, were an integral part of what made the Interfet mission successful, enabling the force to drive out violent Indonesian militia groups and restore over 200,000 refugees to their homes, many of whom had fled to Indonesian-controlled West Timor. The Interfet mission officially concluded in February of 2000, ceding military operations to the burgeoning UNTAET (United Nations Transitional Administration in East Timor). UN peacekeeping forces—and the legal framework that enables them—had ostensibly found their success story.

Salman Ahmed, Senior Political Officer in the Office of the Undersecretary-General for Peacekeeping Operations at the United Nations, writes that both “a fully united Security Council and Australia’s willingness to provide internal security for its neighbor, created conditions for UNTAET’s success as favorable as could have been imagined.”[11] The unification of international legal bodies, and a reliance on regional security stabilization rather than unilateral great-power interventions, informed the success of the 1999 mission. What remained, however, was a far greater test of legal, military, and diplomatic abilities. Now that there was no longer an active threat of violence to East Timorese civilians, the Transitional Administration was charged with constructing a functioning state system, which included a heavy reliance on international law to address both the injustices of East Timor’s past and the institutions of its future.

Unsurprisingly, this taxing mission is where the dream of a secure, functional, and independent East Timor began to fall apart. An ad hoc court system intended to hold genocidal militia leaders accountable was improperly staffed and chronically underfunded. Without enforcement power, the UNTAET could not motivate Indonesian cooperation with the courts, meaning that the vast majority of those responsible for decades of murder, rape, and looting would not be held accountable for their crimes.[12] In addition, UNTAET’s desire to fulfill its mandate and transition administrative control to local leaders led to a breakdown of systems essential for maintaining an effective state. Madhu Narasimhan, a U.S. Fulbright Fellow, titled a 2014 Foreign Affairs article on East Timor “The World’s Youngest Failed State.”[13] International law has proven that in a number of cases, it can be effective in its deployment of peacekeeping and security forces. Peacekeepers in East Timor were widely commended for their attention to both humanitarian tasks and strict military discipline. Outside of this scope, however, international law finds itself woefully insufficient. The United Nations has never completed a successful state-building project, leading the Timorese model of intervention without reconstruction to dominate the legacy of international laws on conflict.

Most recently, the well-known international norm termed “responsibility to protect” provided legal justification for the United States’ 2011 air strikes in Libya. There, after the successful removal of genocidal leader Muammar al-Qaddafi, the limits of international law were once more thrown into stark effect.[14] Without any blueprint for the implementation of a state system following an international military intervention, Libya fell into complete chaos on a far more devastating scale than East Timor, and today is the site of a brutal civil war over rightful governance and frequent, deadly clashes between pro-government militias and members of the Islamic State. This unfortunate model may not have found its origin in East Timor, but the initial praise for the Interfet mission made the ultimate breakdown of state particularly wrenching. If East Timor as a precedent could be easily avoided, the international legal community might have already established protocol for the construction of a state that respects self-determination while building functional institutions and popular involvement in governance. Unfortunately, there is no easy answer to the question of nation-building, and without the hard work of developing collaborative, widely approved legal standards, the international community must resolve itself to forever following East Timor.

 

[1] Traub, James. “Inventing East Timor.” Foreign Affairs. Council on Foreign Relations, 28 Jan. 2009. Web. 14 Oct. 2016.

[2] Abdullah, Maya. “The Right to Self-Determination in International Law.” School of Economics and Commercial Law, University of Göteborg (2006): n. pag. Web.

[3] General Assembly Resolutions 31/53 (1976), 32/34 (1977), 33/39 (1978), 34/40 (1979), 35/27 (1980), 36/50 (1981), 37/30 (1982)

[4] Burr, William, and Michael L. Evans. “East Timor Revisited.” National Security Archive. National Security Archive, 6 Dec. 2001. Web. 14 Oct. 2016.

[5] Embassy Jakarta Telegram 1579 to Secretary State, 6 December 1975 [Text of Ford-Kissinger-Suharto Discussion], Secret/Nodis(24) Source: Gerald R. Ford Library, Kissinger-Scowcroft Temporary Parallel File, Box A3, Country File, Far East-Indonesia, State Department Telegrams 4/1/75-9/22/76

[6] “Australian Involvement in East Timor.” Returned & Services League of Australia. Returned & Services League of Australia, 2014. Web. 13 Oct. 2016.

[7] United Nations Security Council Resolution 1264 (1999)

[8]Agreement Between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, New York, 5 May 1999, United States Institute of Peace, available from http://www.usip.org/sites/default/files/file/resources/collections/peace_agreements/east_timor_05051999.pdf

 

[9] Bellamy, Alex J., and Paul D. Williams. “INTERFET in East Timor. “Understanding Peacekeeping. Polity, 2010. Web.

[10] Moreen Dee (2001) ‘Coalitions of the willing’ and humanitarian intervention: Australia’s involvement with INTERFET, International Peacekeeping, 8:3, 1-20, DOI: 10.1080/13533310108413905

[11] Ahmed, Salman. “No Size Fits All.” Foreign Affairs. Council on Foreign Relations, 28 Jan. 2009. Web. 12 Oct. 2016.

[12] “Special Panel for Serious Crimes (East Timor).” International Bar Association. International Bar Association, n.d. Web. 14 Oct. 2016.

[13] Narasimhan, Madhu. “The World’s Youngest Failed State.” Foreign Affairs. Council on Foreign Relations, 15 Aug. 2014. Web. 12 Oct. 2016.

[14] Bajoria, Jayshree. “Libya and the Responsibility to Protect.” Council on Foreign Relations. Council on Foreign Relations, 24 Mar. 2011. Web. 13 Oct. 2016.

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