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Presiding Judge Nawaf Salam reads the advisory opinion [on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory in the International Court of Justice, The Hague, Netherlands, July 19, 2024.
© 2024 Phil Nijhuis/AP Photo

The International Court of Justice’s (ICJ) July advisory opinion on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory is a landmark ruling. The ICJ’s findings are legally and morally persuasive, and set out obligations on all states, and on the United Nations itself. Two of its important conclusions are with respect to apartheid and reparations.

The court found Israel’s measures in the West Bank that impose and maintain separation between Palestinians and Israeli settlers are a breach of Article 3 of the UN treaty prohibiting racial discrimination. Article 3 obligates governments to prevent, prohibit, and eradicate all racial segregation and apartheid.

Though the court’s language is a compromise, limited to separation, the finding means that Israel is responsible for apartheid. Several judges, including Judge Nawaf Salam, the court’s president, and Judge Dire Tladi, a South African, made this clear in their separate declarations. Two of the ICJ’s 15 judges disagreed and said the court should not find apartheid. One of these, Judge Georg Nolte, asserted a standard of intent for apartheid that would be nearly impossible to prove, and said the court should not find racial segregation either.

The court’s opinion does not address criminal law, only apartheid as a human rights violation. But Salam’s separate opinion sets out the definition of apartheid as a crime and discusses how many jurists and organizations, including Human Rights Watch, have found Israel responsible for this crime against humanity.

Salam’s discussion of the crime should be studied by relevant criminal justice authorities, including the International Criminal Court (ICC) prosecutor, as it outlines the legal framework needed to investigate the crime of apartheid. The ICJ’s finding on apartheid should also help focus discussions about apartheid against Palestinians on the legal definition of apartheid, not limiting it to the historical case of South Africa.

Another key finding was the court’s short and clear statement on reparations. Israel, the court found, should return land and other property seized since the occupation began in 1967. It should also evacuate all settlers, allow all Palestinians displaced during the occupation to return to their original place of residence, and compensate everyone who suffered material damage as a result of Israel’s unlawful acts during the occupation. States and the UN should urgently take up this call, including considering, as Tladi suggested, and the UN General Assembly has now called for, an international mechanism for reparation.

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A member of the Papuan Student Alliance (AMP) holds a placard that reads “End racism against Papuan people” in Indonesian during a demonstration to commemorate the 62nd anniversary of the New York Agreement between the Netherlands and Indonesia in Bandung, West Java, August 16, 2024.
© 2024 Dimas Rachmatsyah/ZUMA Press Wire/Shutterstock

The Indonesian government’s suppression of widespread protests after a 2019 attack on Papuan university students highlighted longstanding racial discrimination against Indigenous Papuans.  Indonesian security forces have committed arbitrary arrests and detention, torture, extrajudicial killings, and mass forced displacement, but are seldom held to account for these abuses.Indonesia’s new government should urgently review existing policies on West Papua, recognize and end the government’s history of systemic racism against Indigenous Papuans, and hold to account those responsible for violating their rights. 

(Jakarta) – The Indonesian government’s suppression of widespread protests after a 2019 attack on Papuan university students highlighted longstanding racial discrimination against Indigenous Papuans in Indonesia, Human Rights Watch said in a report released today. The authorities should address Papuans’ historical, economic, and political grievances instead of prosecuting them for treason and other crimes for exercising their fundamental rights to freedom of expression, association, and peaceful assembly and release those wrongfully held.

The 80-page report, “‘If It’s Not Racism, What Is It?’: Discrimination and Other Abuses Against Papuans in Indonesia,” finds that the protests, built around the Papuan Lives Matter social media campaign, were centered on human rights violations against Papuans, including denial of the rights to health and education, and peaceful calls for sovereignty for West Papua, where most Indigenous Papuans live. The report profiles cases of Papuan activists convicted for their role in the protests and the baseless charges brought against them. 

September 18, 2024

“If It’s Not Racism, What Is It?”

Discrimination and Other Abuses Against Papuans in Indonesia

Download the full report in English

Download the Summary & Recommendations in Bahasa Indonesian

“The racism and discrimination that Papuans have endured for decades only began to get attention from Indonesian authorities after the widespread protests in 2019,” said Andreas Harsono, senior researcher at Human Rights Watch. “The government should act on the many United Nations recommendations to end human rights violations in West Papua and permit international monitors and foreign journalists to visit the territory.”

Between June 2023 to May 2024, Human Rights Watch met several Papuans to discuss the day-to-day discrimination they encounter and conducted 49 in-depth interviews with Papuan activists who were arrested and prosecuted after the Papuan Lives Matter movement began in 2019. In addition, Human Rights Watch interviewed lawyers, academics, officials, and church leaders. 

On August 17, 2019, Indonesian security forces and a mob of ultranationalists attacked a Papuan university student dormitory in Surabaya. Video footage of the attack, which included racial insults, was shared widely on social media, sparking a movement called Papuan Lives Matter, inspired by the Black Lives Matter protests in the United States. Protests broke out in at least 33 cities in Indonesia. While the protests were largely peaceful, in some places there were clashes between communities, arson attacks, and even deaths.

Indonesian police and military used excessive force and arrested many protesters, particularly targeting anyone who raised the Morning Star flag, a symbol of Papuan independence that is considered illegal in Indonesia. Papuans Behind Bars, the website that monitors politically motivated arrests in West Papua, recorded over 1,000 arrests in 2019, and 418 between October 2020 and September 2021. At least 245 people were convicted of crimes, including 109 for treason. Indonesia’s laws against treason are used mostly to target Indigenous Papuans campaigning for their rights, including for independence.

Human Rights Watch takes no position on claims for independence in Indonesia or in any other country, but supports the right of everyone to peacefully express their political views, including for independence, without fear of arrest or other forms of reprisal.

In June 2022, the Indonesian parliament enacted a controversial law, splitting the territory of two provinces—Papua and West Papua—into six new provinces. Based on the preference of Papuan activists, Human Rights Watch uses West Papua to discuss the entire territory. Many Papuans believe that creating these new administrative units will bring more non-Papuan settlers, decreasing the proportion of Indigenous Papuans living in their own land. Indonesian authorities have already encouraged and subsidized tens of thousands of non-Papuan settler families—pendatang in Indonesian—to relocate to West Papua through decades of transmigration programs, often driving out Indigenous Papuans and grabbing their land for mining and oil palm plantations. 

Local and national authorities discriminate against Indigenous Papuans in favor of settlers in delivering health services and education in West Papua, Human Rights Watch said. Areas with Indigenous Papuans have far fewer medical clinics and schools. The authorities also favor the pendatang in government jobs, whether as teachers, nurses, or in the police and military. Meanwhile, Papuans living in other parts of Indonesia encounter discrimination and racist tropes in gaining access to jobs, education, or housing.

Agus Sumule, a lecturer at the University of Papua in Manokwari, who led research on education in West Papua, noted much lower school attendance among Indigenous Papuans in rural areas, and found that there is not a single teacher training college in the Central Highlands, where almost all the residents are Indigenous Papuans. He said: “If it’s not racism, what should I call it?”

Human Rights Watch also found that police torture and abuse Papuan activists, using racist slurs. A video posted earlier in 2024 to social media showed three soldiers brutally beating Definus Kogoya, a young Papuan man, whose hands were tied behind him and who had been placed inside a drum filled with water, taunting him with racist slurs.

The fighting between Papuan pro-independence insurgents and the Indonesian security forces is contributing to the deteriorating human rights situation in West Papua. Indonesian security forces engage in arbitrary arrests and detention, torture, extrajudicial killings, and mass forced displacement, but are seldom held to account for these abuses. The insurgents have been implicated in the killings of migrants and foreign workers and have been holding a New Zealand pilot hostage since February 2023.

When President Joko Widodo, known as “Jokowi,” was elected president in 2014, many had hoped for human rights reforms in West Papua. Ten years later, at the end of the president’s second and final term, little has changed in Papua. A new government, led by Prabowo Subianto Djojohadikusumo, will take office in October 2024. It should urgently review existing policies on West Papua, recognize and end the government’s history of systemic racism against Indigenous Papuans, and hold to account those responsible for violating their rights, Human Rights Watch said.

Indonesia is a party to core international human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. These treaties all prohibit discrimination based on race, ethnicity, and religion, among other grounds. The discriminatory policies and practices Human Rights Watch documented also constitute violations of Indigenous Papuans’ rights to health and education. Among key standards is the UN Declaration on the Rights of Indigenous Peoples, which recognizes the right of Indigenous peoples to self-determination, including to autonomy or self-government in their internal or local affairs. 

“The Indonesian authorities should address the demands of Papuan activists and tackle the systemic racism against Indigenous Papuans,” Harsono said. “The Indonesian government needs to finally recognize that international human rights law applies in West Papua and meet its obligations to the people there.”

Selected Accounts:

Alfa Hisage, a 19-year-old student at Cenderawasih University, Jayapura, wore his hair in dreadlocks. The police arrested him for joining a protest against anti-Papuan racism on August 30, 2019, and tortured him in custody:

They pushed my head on the table. They used a bayonet to cut my hair. It was very rough, pulling my hair till bleeding. The four officers also beat me with their hands. I lost consciousness. I later learned that my head was bleeding. Of all my 16 dreadlocks, there is just one that remains on my head.

Raga Kogeya, a prominent women’s rights activist, said she was detained and beaten in 2018 for her work on forced displacement in the Nduga region during an Indonesian military operation against West Papuan militants. She still has kidney problems due to her injuries:

At that time, there were only a few Papuans who became police officers. The priority was to recruit non-Papuan settlers to join the police and the military. One police officer came from behind and hit me on the head. I passed out for about 15 minutes. As a result of the beatings, sometimes I suddenly forget my memories. 

Yoseph Ernesto Matuan, 19, was arrested with seven other students in December 2021 for raising the Morning Star flag in Jayapura. He said the police beat them in custody: 

They cursed us, calling us dogs or pigs. They said: “Answer quickly, dog, or else you’ll be killed out there!” They hit me on my face, head, and spine. Some police officers shoved my head to the wall. It was more than 24 hours of interrogation and beating. We were all tortured.

Dr. Maria Louisa Rumateray, a physician at the Wamena General Hospital since 2009, said settlers can secure jobs instead of Indigenous Papuans:

Local medical workers who were trained as nurses have difficulties in applying for a job in Wamena because they need to take a standard certification either in Jayapura or Makassar. They don’t have the money to fly to those cities. Thus, the jobs go to the settlers. Before the certification began, my hospital had more Papuan workers than settlers. But it is now the other way around.

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Crowds gathered outside of Meta headquarters to protest the company’s censorship of posts on social platforms related to Palestine, in Menlo Park, California, US, November 3, 2023. 
© 2023 Tayfun Coskun/Anadolu via Getty Images

Earlier this month, Meta’s Oversight Board found that three Facebook posts containing the phrase “From the River to the Sea” did not violate Meta’s content rules and should remain online.

The majority of the Oversight Board members concluded that the phrase, widely used at protests to show solidarity with Palestinians, is not inherently a violation of Meta’s policies on Hate Speech, Violence and Incitement, or Dangerous Organizations and Individuals (DOI). In line with Human Rights Watch’s submission, it affirmed that while the phrase can have different meanings, it amounts to protected speech under international human rights law and should not, on its own, be a basis for removal, enforcement, or review of content under Meta’s policies. Meta created the board as an external body to appeal moderation decisions and provide non-binding policy guidance.

A minority of board members recommended imposing a blanket ban on use of the phrase unless there are clear signals it does not constitute glorification of Hamas. Such a ban would be inconsistent with international human rights standards, amounting to an excessive restriction on protected speech.

The board’s decision upholds free expression, but Meta has a broader problem of censoring protected speech about Palestine on its platforms. A 2023 Human Rights Watch report found that Meta was systemically censoring Palestine content and that broad restrictions on content relating to groups that Meta puts on its DOI list often resulted in the censorship of protected speech. Meta has said that core human rights principles have guided its crisis response measures since October 7. But its heavy reliance on automated detection systems fails to accurately assess context, even when posts explicitly oppose violence.

For instance, on July 19, Human Rights Watch posted a video on Instagram and Facebook with a caption in Arabic that read: “Hamas-led armed groups committed numerous war crimes and crimes against humanity against civilians during the October 7 assault on southern Israel.” Meta’s automated tools “incorrectly” removed the post for violating its DOI policy. Formal appeals were unsuccessful, and the content was only restored after informal intervention.

Meta should address the systemic issues at the heart of its wrongful removal of protected speech about Palestine. Amending its flawed policies, strengthening context-based review, and providing more access to data to facilitate independent research are essential to protecting free expression on its platforms.

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A teacher gives lessons to children at an early learning center in De Aar Town, South Africa, August 11, 2023.
© 2023 Dong Jianghui/Xinhua via Getty Images

Last Friday, South Africa’s President Cyril Ramaphosa signed a law making, among other provisions, one year of pre-primary education compulsory, further strengthening the right to education for South Africa’s children.

From a human rights perspective, compulsory education is primarily an obligation on governments to ensure quality education is free, accessible, and inclusive.

The law also marks an important step toward addressing longstanding challenges in South Africa’s education system, including language and policy admission requirements that are a barrier to ensuring access to education for all. Implementation of certain clauses on these topics has been suspended for three months, pending further consultations.

Expanding the right to education has been a cornerstone in building a democratic South Africa. In 1955, anti-apartheid groups outlined a vision of freedom for the country, including “free, compulsory, universal and equal” education for all.

South Africa’s constitution enshrines the right to a basic education. They have almost succeeded in realizing this goal: around 90 percent of its children now complete lower secondary schooling.

Quality pre-primary education benefits children’s cognitive and social development, educational attainment, and health. Children’s early years represent a critical opportunity to make a positive difference in their lives when the pace of brain development is at its highest. Pre-primary education can mitigate inequalities among children from families of different incomes and can particularly benefit children with disabilities—a sphere where South Africa has unfulfilled obligations—by reinforcing inclusion and reducing discriminatory attitudes.

It’s not just domestically that South Africa has been advancing children’s educational rights. In July, South Africa’s ambassador to the UN Human Rights Council, Mxolisi Nkosi, expressed support for initiating a process to consider and draft a new treaty to strengthen the right to education under international law. It would explicitly recognize rights to early childhood education; free pre-primary education, beginning with at least one year; and free secondary education.

“While the right to education has long been recognized as a human right, and an indispensable means of realizing other rights, it certainly remains a privilege for millions of children across the globe,” said Nkosi, adding that the initiative “will no doubt go a long way in giving this right concrete expression for all children.”

Negotiations for the new treaty begin in 2025. Success depends on South Africa and others’ vigorous participation advocating for a strong treaty.