Can West Papuan Leaders Take Indonesia and the Netherlands to the ICJ for Their Illegal Occupation?

The question of West Papua is a complex and long-standing issue. Historically, West Papua formed part of the Dutch East Indies. After Indonesia declared its independence in 1945, Dutch control over the territory continued, leading to a declaration of independence by West Papua in 1961. However, this declaration was short-lived. The situation escalated when Indonesia invaded the territory, leading to armed clashes with the Dutch.

The United States played a significant role in pressuring the Dutch to negotiate with Indonesia. As a result, Indonesia assumed administrative control over West Papua in 1963. The situation came to a head in 1969 with the so-called act of free choice, a procedure that is widely regarded as a sham, given the selective nature of participants. This event was subsequently endorsed by the United Nations. However, no plebiscite was ever held to determine the wishes of the people of West Papua, making the endorsement of Indonesia’s takeover by the United Nations highly contentious.

The legitimacy of the act of free choice is a matter of great debate, with many believing that it was merely a ploy to ensure that West Papua would remain under Indonesian rule. The United States, at the time, sought to support its anti-Communist ally, Indonesia, while disregarding the rights and aspirations of the West Papuan people. Similarly, the Dutch, while having a relatively weak position, ultimately capitulated under mounting pressure.

The Current Situation

Since the 1960s, there has been a persistent agitation for West Papuan independence. However, Indonesia has shown little inclination to allow a democratic vote on this issue. Given this, the question arises: Is there a legal recourse for West Papuan leaders to seek justice for their perceived illegal occupation?

Enter the International Court of Justice (ICJ)

Aside from UN-backed independence or negotiations, one potential avenue for West Papuans is the International Court of Justice (ICJ). The ICJ, located in The Hague, Netherlands, can settle legal disputes submitted by countries and provide advisory opinions.

West Papuan leaders could consider taking Indonesia and the Netherlands to the ICJ. The case would likely focus on the legal basis for Indonesia's occupation of West Papua and the failure of the Netherlands to uphold international law. However, there are several factors that may complicate this approach:

Acknowledging Sovereignty

Indonesia's sovereignty over West Papua is almost universally recognized. This recognition poses a significant challenge for West Papuan leaders. Simply put, pursuing the ICJ may be perceived as an admission of Indonesia's sovereignty, potentially undermining the legitimacy of any claims made.

The situation is complicated further by the fact that the ICJ may deem the legal basis of the act of free choice as irrelevant. Given that this act was widely regarded as illegitimate, it is crucial for West Papuan leaders to prepare a robust legal argument that challenges the legitimacy of Indonesia's claim to sovereignty over the territory.

Alternative Approaches

Given the challenges in using the ICJ, West Papuan leaders might consider alternative approaches. One possible strategy is to seek devolved authority for self-government within Indonesia. This would be a long and slow process, but it offers a pragmatic solution to the question of sovereignty. The devolution of authority could gradually lead to more autonomy and self-determination for West Papuan people.

Historical precedents support this approach. The devolution of power to Scotland and Wales within the United Kingdom demonstrates that self-determination can sometimes be achieved through incremental steps rather than a sudden, radical shift. Similarly, West Papuans could advocate for greater autonomy within Indonesia, gradually building momentum for their cause.

Conclusion

The question of whether West Papuan leaders can take Indonesia and the Netherlands to the ICJ for their illegal occupation is a challenging one. While the ICJ is a legal avenue, the complexities of international law, combined with the universal recognition of Indonesia's sovereignty, make this approach fraught with difficulty. Alternatively, seeking devolved authority for self-government within Indonesia offers a more practical and gradual route to achieving greater autonomy and self-determination for the West Papuan people.