Association of Humanitarian Lawyers
A Briefing Paper
HUMANITARIAN LAW PROJECT
The United Nations
Humanitarian Law Project/International Educational Development (HLP/IED) is a non-sectarian, non-governmental organization granted consultative status at the United Nations by Dag Hammarskjold. IED was originally founded by Jesuit fathers to assist hospitals and schools in developing countries. In 1989 IED merged with the Los Angeles-based Humanitarian Law Project (HLP) and broadened its scope to advocate and promote world-wide compliance with human rights and humanitarian law.
Karen Parker, a director of HLP/IED, is an attorney at law specializing in human rights and humanitarian law. She is the organization's chief representative to the United Nations, Geneva and New York.
Additional copies of this report may be obtained from HLP/IED headquarters or by contacting: Law Offices of Karen Parker, 154 Fifth Avenue, San Francisco, California, USA, tel/fax (415)-668-2752.
This report was funded by a grant from
REPUBLIK MALUKU: THE CASE FOR SELF-DETERMINATION
INTRODUCTION AND BACKGROUND
THE LINGGADJATI AGREEMENT
THE RENVILLE AGREEMENT
THE PROVISIONAL CONSTITUTION
UNITED NATIONS ACTION UP TO ROUND TABLE CONFERENCE
THE ROUND TABLE CONFERENCE
INDONESIA VIOLATES THE ROUND TABLE CONFERENCE AGREEMENTS
THE REPUBLIK MALUKU SELATAN DECLARED
OPINIONS ON MALUKAN SELF-DETERMINATION
Republik Maluku (the Moluccan Islands or the Maluku) form an island group off the eastern-most part of the present-day Indonesia. The Malukan (Moluccan) people are part of the Melanesian people called Alifoeroes and have occupied the islands since at least 1000 B.C.
The Maluku were famed since the early centuries B.C. for their spices which brought many nations to seek trading relations with them.1 In the early 1600's, the Netherlands colonized the islands, beginning with the seizure of Ambon in 1605. The Netherlands ultimately seized all of the area and what is presently known as Indonesia. Revolts by the Malukan people in 1636 and 1646 were severely put down by the Dutch administrators. During World War II, the whole of the Netherlands East Indies were seized by the Japanese forces and held from 1942 to 1945. However, in Maluku, the Malukan people fled to the mountains and maintained a continual war of resistance by what became known as the South Moluccan Brigade against the Japanese occupiers.
In the post-war period, the Netherlands and political leaders from the islands of the Netherlands East Indies met to work out independence plans. The Moluccan people viewed the process with favor because it was thought that independence from the Dutch would mean sovereignty for the Moluccas.
After a series of interim agreements, the Round Table Conference Agreements2 were signed in 1949 which were to settle the handing over of power to the new state, the United States of Indonesia, and which provided mechanisms for the component areas to chose or opt out of the new Indonesia. The Agreements granted the Malukans the right to determine their ultimate sovereignty: Malukans were to have a choice whether to join with the new state Indonesia or whether to reestablish their historic independent status.
The Round Table Agreements were violated within a year of signing. In response, the Moluccan people severed ties with East Indonesia and from the United States of Indonesia. On April 25, 1950, they declared the Republik Maluku Selatan (South Moluccas Republic), comprising the historic islands of the Malukan people: Amboina, Buru, Ceram and the adjoining islands. At this time, the United States of Indonesia did not yet formally exist, not becoming fully independent until August 17, 1950.
Indonesian forces initially invaded the islands on
July 13, 1950. A major invasion began on Ambon on September 25, 1950
and cost the Indonesian forces 15,000 casualties before finally they
were able to seize control of Ambon city. The forces of Republik Maluku
Selatan withdrew to Ceram.
This briefing paper describes the agreements leading to the Round Table Conference and then discusses the Round Table process and relevant terms of the Round Table Agreements. It then sets out the law and facts of the Malukan claim to self-determination. It concludes with a brief review of Indonesian violations of the rights of Malukans and an action plan for the international community, especially the United Nations, to assure the realization of the right to self-determination of the Malukan people.
The first major decolonization instrument between the Government of the Netherlands and the Government of the Republic of Indonesia is the Linggadjati Agreement of 25 March 1947.3 The parties agreed that the new state of Indonesia "was to be a sovereign democratic state on a federal basis."4 The new state, to be called the United States of Indonesia, would comprise the entire territory of the Netherlands Indies, but the people of each component part were to be given the right to decide "by democratic process" whether or not to join the new state. Those parts that did not agree by vote to become part of the United States of Indonesia had the right to form a special relationship with the Indonesian state and Netherlands. The United States of Indonesia was defined as having three distinct parts: the Republik Indonesia comprised of Java, Madura and Sumatra; Borneo; and East Indonesia (called "the Great East").5 The three parts were to be co-equal. Delineation of the three parts was made "without prejudice to the right of the population of any territory to decide by the democratic process that its position in the United States of Indonesia shall be arranged otherwise."6 Key provisions of the agreement include the following:
Under the Linggadjati Agreement, Maluku became part of the State of East Indonesia, which also included Celebes and the northern islands in the Moluccas (predominantly Muslim).
The Renville Agreement of 19487 affirmed the Linggadjati Agreement and further delineated boundaries of the as-yet Netherlands controlled territories and those already under Indonesian authority. This Agreement very clearly stated the duties of the parties to ensure application of the principle of self-determination regarding all the territories:
Between the time of the Renville Agreement and the Round Table Conference, there were accusations on both sides of violations of the Linggadjati and Renville Agreements. For example, the government of Indonesia considered that the formation of component states (called "negaras") West and East Java, Madura and East and South Sumatra in the area controlled by the Netherlands was done in contradiction of the Renville Agreement.8 The government of the Netherlands, with the help of the South Moluccan Brigade, repulsed a Javanese invasion of East Indonesia.9
In line with the Linggadjati and Renville Agreements, the Provisional Constitution10 was drafted by the Federal Constituent Assembly (FCA) and the Republic of the United States of Indonesia. Prior to its final drafting, the Inter-Indonesian Conference (19 - 22 July 1949) provided guidance, giving particular importance to clear statement of what territories would be component parts of the Republic of the United States of Indonesia (Republic Indonesia Serikat).
The Provisional Constitution addressed the issue of "internal self-determination" by which was understood to mean the right of the different peoples to decide on the their status within a federal structure.11 The Constitution expressly establishes the federal form of government.12 However, the Provisional Constitution, as presented at the Round Table Conference made no provision for the opting-out measures agreed upon by the parties in the Linggadjati and Renville Agreements.
UNITED NATIONS ACTION UP TO ROUND TABLE CONFERENCE
The United Nations became involved in the situation through a Committee of Good Offices on the Indonesian Question of the Security Council. From its formation in 1947 until it was disbanded in 1949, the Committee of Good Offices sought peaceful resolution of all conflicts arising in the decolonization process, and was called upon during times of armed actions between the Netherlands forces and those called "Republican" forces of the various component parts of the area.13 For example, following military action beginning on 19 December 1948 and based in part by the efforts of the Committee of Good Offices, the Security Council adopted a resolution calling on the Government of the Netherlands and the Government of the Republic to cease armed conflict and calling on the Government of the Netherlands to release political prisoners and to facilitate the return of Indonesian authorities.14 At the time of the Round Table Conference, the Committee of Good Offices had been replaced, and the Security Council authorized a Commission for Indonesia.1
Both the Committee of Good Offices and the Commission
met in private, but some information was made public through information
releases.16 For example, following investigation of armed activity in
North Sumatra, West, Central and East Java, the Commission issued an
information release describing the military situation, the position
of the Commission's Military Observers and its conclusions regarding
military action.17 Another of the Commission's releases addressed the
wounding of one of its Military Observers on 5 June 1949.18 In spite of
its effective monitoring of the situation, the Commission's most important
contribution was the Round Table Conference.
THE ROUND TABLE CONFERENCE
The Round Table Conference was held at the Hague in November of 1949 under the auspices of the United Nations Commission for Indonesia and attended by the government of the Netherlands, representatives of the new Indonesian government and representatives of the Federal Consultative Assembly.19 On March 23, 1949, the President of the Security Council had addressed the Chair of the United Nations Commission for Indonesia as follows:
The Conference was to provide the legal framework for the transfer of sovereignty from the Netherlands to the new state, the Republic of the United States of Indonesia. According to the members of the Commission, the goal was
By special reference to the Renville Agreement, it was clear that the Conference was to establish legal rights and responsibilities of the Netherlands and the new Indonesia, especially in regard to the component states of the Dutch colonial administration in order to safeguard the right of the component states to self-determination.
The issue of self-determination was not raised at the Round Table Conference until the last days partly because, as described above, the formulation of relevant articles on the Provisional Constitution did not incorporate self-determination as set out in the Linggadjati and Renville Agreements. At the Conference itself, the parties could not reach agreement until the United Nations Commission for Indonesia proposed terms in conformity with the Linggadjati and Renville terms. All parties agreed to this formulation that became Article 2 of the Third Agreement (Transitional Measures) providing, in pertinent part:
Paragraph 2 of the same article sets out rights of components states that do not ratify the new Constitution of Indonesia:
It is patently clear that the Round Table Conference Agreements gave the Malukan people the prerogative to refuse incorporation into the Republic of the United States of Indonesia either by exercise of a negative vote in a pre-incorporation plebiscite or by refusing to ratify the Provisional Constitution.
Soon after signing of the Round Table Conference Agreement, the government of the Republic of Indonesia,24 headed by President Sukarno, made moves to establish all of Indonesia as a unitary state.25 By the first meeting of Parliament, 15 February 1950, President Sukarno referred to the "temporary nature" of the Republic and the "provisional character" of the Constitution.26 The Emergency Law of 7 March 1950 of the Republic of Indonesia provided for "political reforms", including plebiscites, but there were many exceptions to the right of plebiscite and in fact, no plebiscites were held.27 Beginning with the Decree of 9 March 1950 which incorporated East Java, Central Java, Madura, Padang and Sabang into the Republic of Indonesia, a series of decrees incorporated all but East Sumatra and East Indonesia. The High Commissioner of the Netherlands addressed an appeal to the United Nations Commission for Indonesia questioning how Indonesia could comply with Article 2 of the Round Table Conference Agreements regarding the right to self-determination.28
The United Nations Commission for Indonesia, though signatory to the Covering Resolution to the Round Table Conference Agreements, did not consider itself a party to the agreements. It stated this position in a letter addressed to the parties on 24 June 1950 that the responsibility to execute the Round Table Conference Agreements - including the Agreement on transitional Measures - is the burden of solely the two countries
[The Commission's] responsibility as an international
organ entrusted with the task of observing the agreements was necessarily
secondary to that of the two parties. Consequently, the Commission had
so far regarded it as inappropriate to take action on the basis of the
provisions of the Round Table Conference Agreement without being first
approached in the matter by at least one of the parties.29
Efforts to create a unitary state met resistance in
East Indonesia and serious conflicts began on the Malukan island of
Amboina. The disputes led East Indonesia to appeal to the United Nations
Commission for Indonesia 12 April 1950. Talks between the governments
of the Republic of Indonesia and the United States of Indonesia continued
following an agreement of 19 May 1950. By July, full agreement was reach
to create a unitary state containing ten provinces. East Indonesia was
to be divided into three provinces: Lesser Sunda, Celebes and the Moluccas.31
On 15 August 1950, President Sukarno proclaimed the establishment of
the Republic of Indonesia as a unitary State - in audience were members
of the diplomatic corps accredited in Djakarta and members of the United
Nations Commission for Indonesia.
THE REPUBLIK MALUKU SELATAN DECLARED
Anticipating the ultimate annihilation of a federated state of Indonesia and alarmed by the rapid engulfment of much of the area to Javanese control of the Republic of Indonesia, on 25 April 1950, the Republik Maluku Selatan (Republic of the South Moluccas) was formed by the Malukan people and it declared its separation from both the East Indonesian State and from the United States of Indonesia. The Malukans were acutely aware that no plebiscites had been carried out and that none were planned for either their own determination nor the determination of any other of the many nations incorporated in the Netherlands East Indies.
The Republic of Indonesia unsuccessfully attempted to negotiate a settlement with the Republik Maluku Selatan and finally on 13 July 1950, they landed armed forces on the Malukan islands of Buru and Ceram. The Malukan forces were depleted at the time because about 4,000 of them who had been incorporated into the Royal Netherlands East Indian Army (KNIL) but transferred to the Royal Netherlands Army (KL) in 1950 were not able to join local Malukan armed forces.32 The Government of Republik Maluku Selatan sent appeals to the United Nations on the 26th 29th, 31th of July, the 2nd, 11th, 14th of August, and on the 28th of September 1950.33 The United Nations Commission for Indonesia, in its concern for the civilian populations, communicated its readiness to give assistance to the Indonesian Government (the new unitary state) on 4 August and again on 25 September in order to help peacefully resolve the conflict.
The Indonesian Foreign Minister Dr. Mohammad Hatta, in his reply on 30 September,34 responded that it was the belief of his government that intervention by the United Nations Commission for Indonesia would not be of use because it would constitute only an encouragement for the "rebels" who may see the apparent international attention as an affirmation of their case. In the meantime, Indonesian forces landed on and attacked the main South Moluccan island of Amboina.
On 6 October 1950, the United Nations Commission for Indonesia once again tried to ask Indonesia to
The Indonesian government, however, dismissed the offer
of assistance by repeating previously stated reasons.36 The Commission
sent a report of their attempts to secure a peaceful settlement, asking
the United Nations Security Council to "reinforce the Commission's
authority by calling upon the Indonesian Government to utilize the existing
machinery for a peaceful solution of this problem which is provided
by the presence in Indonesia of the United Nations Commission for Indonesia"
.37 The request by the Commission was debated in the Security Council
on 30 October 1950, but the debate was adjourned and not resumed.38
The United Nations through its United Nations Commission for Indonesia, the government of Indonesia and the government of the Netherlands all promised the people of Maluku the opportunity to express their wishes regarding their governance and the international status of their country. The Round Table Conference Agreement and the earlier bi-lateral agreements clearly grant the Malukans the right to self-determination. Even absent that express recognition of the right to determine their status, the Malukan people meet all international law tests for the right to self-determination.
The right to self-determination, a fundamental principle of human rights law,39 is an individual and collective right to freely determine political status and to pursue economic, social and cultural development.40 The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone.41 The right to self-determination is indisputably a norm of jus cogens.42
The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.43
The Malukan claim to self-determination even absent the express agreement is particularly strong. The Malukan people have a different ethnic and cultural background from the Javanese who predominate in other island groups in the area. Malukans are Melanesians rather than Malayan/Mongoloid, the ethnic background of the Javanese. Malukans speak Amboinese, a separate language from the widely used Malay-based language of much of Indonesia. Malukan culture, customs and manners strongly identify with those of traditional Melanesian cultures. Malukans are predominately Christian, testimony to the long years of colonial domination by the Netherlands.
Prior to colonial rule, the Malukan people enjoyed self-governance. They were not under domination by other groups in the area but maintained their islands and traditional culture intact. Even through the long years of colonial rule, the Malukans remained politically and culturally intact except for the adoption of Christianity as their religion. The islands comprising Maluku are clearly identifiable, having gained fame as the Spice Islands centuries ago. Finally, the Malukan people have both a will and a capacity for self-governance. Malukans in exile have formed provisional governments, and the political agenda of the people and their leaders has remained intense since 1950. The summary execution (by firing squad) of the Malukan leader Dr. Chris Soumokil in 1966 further strengthened the resolve of the people and their military units to maintain the struggle. Repeated attacks by Indonesian authorities on Malukan culture and people since then also merely strengthen Malukan resolve.
Because the Malukan people have the right to self-determination,
the armed conflict that occurs periodically between Malukan forces and
those of Indonesian should be considered a war of national liberation
in exercise of the right to self-determination. In any case, the armed
conflict is by applicable humanitarian law including the Geneva Conventions.
Violations of human rights must, therefore, also be considered as violations
of humanitarian law when relevant.
OPINIONS ON MALUKAN SELF-DETERMINATION
The issue of Moluccan self-determination has been before relevant bodies in the Netherlands. The following is a brief synopsis of some of them.
1. Resolution passed by the Netherlands Branch
of the International Law Association on 24 June 1950:44
is therefore in the opinion that the Republic of the
South Moluccas had the right to proclaim its independence and is lawfully
entitled to preserve that independence against all others, in order
to realize its right, derived from art. 2 of the Agreement on Transitional
Measures, to negotiate with the United States of Indonesia and the Kingdom
of the Netherlands concerning a special relationship with these two
2. The Judgement of the President of the Arrondissement Court of Amsterdam of 2 November 1950:
On the 2nd of November 1950, in an action brought by
the Republik Maluku Selatan (South-Moluccan Republic) against the N.V.
Koninklijke Paketvaart Maatschappij (Royal Packet Company Ltd.) the
President of the Arrondissement Court of Amsterdam gave a decision on
the question whether this Republic is to be regarded as a state, therefore
as competent to be a party to a civil lawsuit, and on the question whether
the proclamation of the independent Republik Maluku Selatan on the 24
of April 1950 was a lawful exercise of the right to self-determination
. . .. Considering, further, that the disputed question, whether the
recognition of a State is essential for its capacity to appear as a
party to a civil action, need not be answered in the present case, because
the recognition of the Republik Maluku Selatan (which exists
in fact, as has been considered above) by the Netherlands is contained
in the Netherlands act of Parliament of 21st December 1949, State
Gazette J 570 (Transfer of Sovereignty over Indonesia Act), by which
the said Agreement on Transitional Measures was ratified and thereby
became a part of the Act;
Even when still entirely under Netherlands rule the territory of the South Moluccas, by reason of its geographical situation and the race, culture, and common interests of its population, formed a natural and organic unity, with its own local system of government. ... The agreement of Linggadjati of 25 March 1947 ... between the Netherlands Government and the Government of the Republic of Indonesia ... contained, in so far as relevant here, the following provisions:
Further, the Renville principles, agreed upon 17th January 1948 as the basis for the political discussion between the Netherlands and R.I. [Government of the Republic of Indonesia], in so far as is relevant here, provided:
The Van Royen-Roem agreement of 7th May 1949 also presupposed
a federal Indonesian State, subject to the absolute right of self-determination
of the Indonesian Peoples, as affirmed by the agreements of Linggadjati
and Renville . . ..
The Agreements were signed by the Government of the Kingdom of the Netherlands, the Government of the Republic of the United States of Indonesia, and by the United Nations Commission for Indonesia. The parties who have signed sign not only to the agreements but to the obligations entailed. The parties who have signed must make legitimate efforts to enforce that to which they have agreed.
Since the demise of the United nations Commission for Indonesia there has been no regular effort by the international community to resolve the long-standing crisis in Maluku.
According to basic principles of international law, the governments of both the Netherlands and Indonesia (the successor state to the Republic of the United States of Indonesia are responsible for and obligated to insure implementation of the Agreements, including the peoples' right to self determination. As discussed above, the government of the Netherlands did express concern to the United Nations Commission for Indonesia at the time Indonesia was consolidating power as a unitary state in violation of the Round Table Conference Agreements. However, there has been very little action by the Netherlands government since, in spite of the unresolved situation of many Malukans still residing in the Netherlands.
In 1994, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities introduced a resolution on Indonesia mentioning, inter alia, the Moluccas and Acheh, but failed to take action on it.
At this point, the international community should act as follows:
1. Governments should communicate to Indonesia that they do not recognize Indonesian sovereignty over Maluku.
2. The United Nations Commission on Human Rights and its Sub-Communications should, directly through specific resolutions and indirectly through the reporting of thematic rapporteurs, address the situation in Maluku, including presentation of the numerous and very serious human rights and humanitarian law violations perpetrated by the government of Indonesia and its forces in Maluku.
3. The United Nations should address the situation in Maluku as one of a non-self-governing territory and should accordingly place Maluku under the trustee system of the United Nations until a plebiscite of Malukans is held which determines the wishes of the Malukan people.
The government of Republik Maluku Selatan was a legitimate
government and was wrongly overturned by the government of Indonesia.
The Malukan people are entitled to the exercise of self-determination
because this was explicitly granted them by history and express agreement
of the governments of the Netherlands and Indonesia and acknowledged
by the United Nations. The government of Indonesia illegally occupies
Maluku and should withdraw its people and military forces immediately.
The people of Maluku should be given the opportunity to reorganize their
government in Maluku or, if it is their wish, to indicate by plebiscite
or other means of free choice, their wishes for their governance. The
government of the Netherlands and the United Nations as a whole should
carry out initiatives to restore the right to self-determination to
the Malukan people.
(United Nations documents are cited in the text and footnotes and according not listed here. With the exception of the materials prepared by the Malukan government, most of the materials cited here are of general reference value. This author relied on the actual UN documents).
Republik Maluku Selatan, Department of Public Information, The Legal Position of the Republic of the South Moluccas in the International Legal Order No. 8 A. (1952).
Republik Maluku Selatan, Department of Public Information, The South Moluccan Case in the United Nations Machinery No. 12 Submitted to the United Nations, [1954?].
Foster, Colin, "The United Nations and Indonesia,"
(Carnegie Institute, Int'l Conciliation No. 459 (1950).
Taylor, Alistair, Indonesian Independence and the United Nations, (1960).
Van Kaam, Ben, The South Moluccas, (1980).
early centuries B.C., the cloves and the nutmeg of the Moluccan Islands
attracted the commerce of China, the Middle East and later, Europeans,
beginning with the Portuguese traders and then by the Dutch colonizers.
The religions of the Islands evidence the latest of the foreign contacts:
while most of the people who inhabit the Indonesian Islands are Muslim,
much of the population of the Moluccan Islands are Christian - reflecting
the five centuries presence of the European countries.