Outline Case for the Prosecution Against Freeport McMoranPublished by MAC on 2001-05-01
STRUCTURE OF CASE AGAINST PT FREEPORT INDONESIA AND ITS PARENT COMPANIES, FREEPORT MCMORAN AND RIO TINTO
In March 2000, the Permanent Peoples Tribunal, an initiative of the Rome-based Lelio Basso Human Rights Foundation, held hearings at Warwick University, Coventry, England, to consider corporate crimes against human rights. Partizans (People Against Rio Tinto and Its Subsidiaries) was invited to present the case against PT Freeport Indonesia (controlled by Freeport McMoRan of the USA and Rio Tinto of Britain and Australia) for its Grasberg copper-gold mine in Indonesian-occupied West Papua. Partizans member Richard Solly presented the case, prepared by researcher Roger Moody, with the help of expert witnesses named below. The outline case against the corporations was drafted as follows; see also the document summary posted on this website.
I intend to show that PTFI and its controlling companies, Freeport McMoRan and Rio Tinto, are guilty of direct violation of Articles 18 and 23.1 of the Universal Declaration of Human Rights and Articles 11, 12, 15 and 16 of the Universal Declaration of the Rights of Peoples, made at Algiers in 1976; and of complicity in the violation of Articles 3, 5, 9, 13.1, 18, 20.1, 21.1, 21.3 and 28 of the Universal Declaration of Human Rights and Articles 2, 3, 4, 5, 6, 7, 8, 13 and 14 of the 1976 Declaration of Algiers.
These Articles read as follows:
Universal Declaration of Human Rights
ARTICLE 3: Everyone has the right to life, liberty and security of person.
ARTICLE 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
ARTICLE 9: No one shall be subjected to arbitrary arrest, detention or exile.
ARTICLE 13.1: Everyone has the right to freedom of movement and residence within the borders of each state.
ARTICLE 18: Everyone has the right to freedom of … religion; this right includes freedom to … manifest his religion or belief in teaching, practice, worship and observance.
ARTICLE 20.1: Everyone has the right to freedom of peaceful assembly and association.
ARTICLE 21.1: Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
ARTICLE 21.3: The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
ARTICLE 23.1: Everyone has the right to work, to fee choice of employment, to ust and favourable conditions of work and to protection against unemployment.
ARTICLE 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised.
Universal Declaration of the Rights of Peoples
ARTICLE 2: Every people has the right to the respect of its national and cultural identity.
ARTICLE 3: Every people has the right to retain peaceful possession of its territory and to return to it if it is expelled.
ARTICLE 4: No one shall be subjected, because of his national or cultural identity, to massacre, torture, persecution, deportation, expulsion or living conditions such as may compromise the identity or integrity of the people to which he belongs.
ARTICLE 5: Every people has an imprescriptible and unalienable right to self-determination. It shall determine its political status freely and without any foreign interference.
ARTICLE 6: Every people has the right to break free from any colonial or foreign domination, whether direct or indirect, and from any racist regime.
ARTICLE 7: Every people has the right to have a democratic government representing all the citizens without distinction as to race, sex, belief or colour, and capable of ensuring effective respect for the human rights and fundamental freedoms for all.
ARTICLE 8: Every people has an exclusive right over its natural wealth and resources. It has the right to recover them if they have been despoiled, as well as any unjustly paid indemnities.
ARTICLE 11: Every people has the right to choose its own economic and social system and pursue its own path to economic development freely and without any foreign interference.
ARTICLE 12: The economic rights set forth above shall be exercised in a spirit of solidarity amongst the peoples of the world and with due regard for their respective interests.
ARTICLE 13: Every people has the right to … preserve and develop its own culture, thereby contributing to the enrichment of the culture of mankind.
ARTICLE 14: Every people has the right to its artistic, historical and cultural wealth.
ARTICLE 15: Every people has the right not to have an alien culture imposed upon it.
ARTICLE 16: Every people has the right to the conservation, protection and improvement of its environment.
I intend also to show that the companies are guilty of direct violation of Articles 5a, 7.1, 14.1, 15.1, and 16 of the United Nations ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries and of complicity in the violation by the Indonesian Government of Articles 2, 3, 4, 6, 7.3, 7.4, 8.1, 12, 13, 14.2, and 15.2 of the same Convention.
I will make use of the documents listed in the document list and summary already provided and to certain additional documents. I will call three expert witnesses and show videotaped interviews with two further witnesses. These will demonstrate how PT Freeport Indonesia’s operations at and around the Grasberg mine in West Papua are in breach of these internationally recognised human rights declarations.
In order to throw further light on PT Freeport’s activities, I will examine the behaviour of Freeport McMoRan recently in Sri Lanka; Rio Tinto’s community relations record in the neighbouring Philippines; Freeport McMoRan’s attacks on academic freedom in the United States, where it is based; and the extent to which Rio Tinto has attempted to mute criticism of its operations from environmental, human rights and development agencies. I will refer to documents included in the document list and summary and to certain additional documents and videotaped testimony from one expert witness, and I will call on three other expert witnesses who are present.
Presentation of the case
PT Freeport Indonesia is guilty of human rights violations in West Papua on three levels:
1. Complicity in the denial of the right of the West Papuan people to self-determination; in violation of Articles 21.1, 21.3 and 28 of the Universal Declaration of Human Rights and Articles 5, 6, 7 and 8 of the Universal Declaration of the Rights of Peoples.
John Saltford, Researcher, currently completing a doctorate at Hull University on the "Act of Free Choice"; will deal with official complicity in the deliberate denial of West Papuans’ right to self-determination by the Indonesian Government.
Carmel Budiardjo, writer and human rights campaigner, TAPOL (The Campaign for Human Rights in Indonesia) will be questioned briefly about the extent to which Freeport McMoRan was aware of the matters dealt with by John Saltford.
Review of documentation (documents are listed in the order in which they appear in the document list and summary, by title and date; if they do not appear in the document list and summary, they are marked "EXTRA"):
A: The Act of Free Choice was fraudulent and is deeply resented by many West Papuans:
* Results of Conference of Traditional Amungme Council, 12.12.98
* Dutch Government agrees to review West Papua handover, December 1999
* West Papua’s 1969 referendum revisited, Jan/Feb 2000
* UN’s former role in Irian Jaya, 8.2.00
* Statement issued by the Grand Assembly held in Port Numbay 23-26 Feb 2000
* Act of Free Choice for Papuans was a farce, March 4 2000
* Calls for UN to oversee independence referendum in West Papua 7.3.00
* Early Day Motion in British House of Commons regarding Act of Free Choice, 7.3.00
* EXTRA Notes from a talk by John Saltford at Cambridge
B: Official Indonesian attitudes to West Papuan independence:
* Police, military vow to take action on Papua separatists, March 2000
* EXTRA More troops coming to quell separatism
C: Freeport is seen by West Papuan people as complicit in the denial of their right to self-determination:
* Upsurge in OPM operations, Feb 1996
* Open revolt against Freeport/RTZ, April 1996
* TAPOL Bulletin 143, October 1997
* Irianese leaders decry Freeport expansion plan, 30.1.99
D: Official Indonesian attitudes to the Freeport mine and its critics:
* West Papua: 60000 troops protect Freeport mine, October 1997
* Rio Tinto critic gagged, May 1998
* Indonesian torture victim stopped from coming to UK, 11.5.98
E: The attitude of Freeport to West Papuan aspirations for independence:
* Freeport McMoRan Copper and Gold announces Judge Gabrielle McDonald … , 29.11.99
It is widely believed that the complicity of Freeport Indonesia in the denial of the West Papuan right to self-determination involved a very close working relationship with the now discredited Suharto regime and that this relationship found expression in the contract between Freeport and the Government of Indonesia. There have been calls within West Papua and within the new Indonesian Parliament and Government for the contract to be renegotiated because it is believed that it does not bring sufficient benefits to the country. I do not intend to deal with this issue in detail but I draw the Tribunal’s attention to the following documents:
* Freeport McMoRan at home and abroad, July31/Aug 7 1995
* Hand in Glove: How Suharto’s Circle, Mining Firm Did So Well Together, 29.9.98
* Indonesian political fallout hits U.S. mining giant, Feb 7 1999
* Govt told to review Freeport deal, 2.2.00
* Freeport Indonesia dismisses call to review contract, 3.2.00
* Demand for Freeport contract review blasted, 4.2.00
* Walhi protests Kissinger’s Freeport statement, 1.3.00,
* Irian Jaya governor urges Freeport to renegotiate mining contract, 3.3.00
* Papua demands a stake in Freeport Indonesia, 6.3.00
* Indonesian Environment Minister says Freeport deal still open to change, 7.3.00
* Indonesia should review contract: Soemitro, 10.3.00
* EXTRA E-mail from George Adjitjondro to Robert Bryce
Additional comments by Carmel Budiardjo
2. Denial of Indigenous Peoples’ rights to religious and cultural identity and to control of their territory and choice of livelihood; in violation of Articles 18 and 23.1 of the Universal Declaration of Human Rights and Articles 11, 12, 15 and 16 of the Universal Declaration of the Rights of Peoples. Complicity in the denial of these rights in violation of Article 13.1 of the Universal Declaration of Human Rights and Articles 2, 3, 8, 13 and 14 of the Universal Declaration of the Rights of Peoples.
Video testimony from John Ondawame
Witness statement from Carmel Budiardjo
Review of documentation
* ACFOA Report, 1994, pages 1 (forced resettlement and negative impacts on indigenous culture) and 3 (link between resentment against Freeport and West Papuan resistance to Indonesian occupation)
* Army: threat to Freeport, so villagers must be moved, 28.4.95
* Freeport denies serious damage, 30.11.95
* Freeport/RTZ lose political risk insurance, Dec 1995
* Upsurge in OPM operations
* Freeport balks at possibility of independent investigation in Indonesia, cancels World Bank insurance, 18.9.96
* River Ajkwa polluted, 27 Mar 1997
* West Papua: more clashes, killings around Freeport mine area, Aug 1997
* Freeport/Rio Tinto: more expansion, more unrest, November 1997
* Risky Business, 1998
(violation of religious rights, introductory page and page 10; forced relocations, p8 paras 3 and 4; environmental damage pp 11, 13, 14; water pollution, pp 15, 16; killing of tress through tailings deposition, p17; acid mine drainage, p18; illegal operations within Lorentz National Park, p19)
* Results of the Conference of Traditional Amungme Council, 12.12.98
* Irianese oppose PT Freeport’s expansion plan, 22.2.99
* Freeport expansion plan gets government approval, 1.4.99
* Bank agrees: ‘serious damage’ by Freeport Rio Tinto, Winter 1999/2000
* Freeport mine may be shut down for pollution, 12.2.00
* Amdal on Freeport examined, 21.2.00
* Report blasts Freeport for environmental damage, 25.2.00
* Digging for Trouble: Separatist rage runs loose in wild West Papua, 28.2.00
* Modern way of life brings insecurity for native folk, 29.2.00
* Indonesian Environment Minister says Freeport deal still open to change, 7.3.00
* Freeport Indonesia sets aside US$150 million for land reclamation, 13.3.00
* EXTRA ‘Development’ in Irian Jaya and its cost on the traditional rights of indigenous peoples, November 1992
* EXTRA Survey report on invertebrate consumption in the area below PT Freeport Indonesia’s mine by a team member from YALI-Jayapura, 6-27 May 1999
* EXTRA Printout of Corporate Watch website features on
environmental damage at Freeport mine;
community perspectives and impact of the mine on traditional livelihoods;
Tom Beanal’s speech at Loyola University, dealing with religious/sacred lands issues;
Protests against environmental damage and plans to relocate the Komoro people;
Statement by the Foundation of the Moni Community and Moni students in Jayapura;
* EXTRA Freeport’s own version of the history of the mine, omitting mention of the war in Indonesia or West Papua, the UN/Indonesian mandate to seek the views of West Papuan people, the fraudulent Act of Free Choice and other salient facts.
Video testimony from Steve Feld
Brief witness statement by Juliet Peck, journalist and researcher into ethical investment issues, and presentation of photographic material concerning water pollution below the Freeport mine.
Brief comments by Carmel Budiardjo
3. Complicity in Specific Human Rights Violations; in violation of Articles 3, 5, 9, 13.1 and 20.1 of the Universal Declaration of Human Rights and Article 4 of the Universal Declaration of the Rights of Peoples.
Video testimony by John Ondawame and Steve Feld
Review of documentation:
* ACFOA Report pages 4-6 on involvement of Freeport Security personnel in human rights violations.
* 37 victims claim denied, 13.4.95
* Violations of human rights in the Timika area of Irian Jaya – Report by the Catholic Church of Jayapura, August 1995
* Protestant minister blames Freeport, 5.9.95
* Three, ten, eleven or however many, 7.9.95
* Letter from John G Hughes of RTZ to Partizans, 6.12.95
* Freeport’s human rights record should be investigated, 20.12.95
* Beyond reasonable doubt: RTZ’s complicity in murder and torture in West Papua, Dec 1995
* Amungme criticise Commission’s findings
* No Hiding Place: Oil, Gas and Mining in Developing Countries: Case Study 3, Freeport McMoRan in Irian Jaya, Control Risks Group ? 1997
* West Papua: 60000 troops protect Freeport mine, Oct 1997
* Human rights violations and disaster in Bela, Alama, Jila and Mapnduma, May 1998
* Again, hundreds of students in Jayapura demonstrating, 5.6.98
* Indonesian army kills and rapes tribal people, Oct 1998
* Report of the UN Special Rapporteur on violence against women, its causes and consequences, Jan 1999
* Irianese leaders decry Freeport expansion plan, 30.1.99
* Memorandum to Board of Directors, Freeport McMoRan Copper and Gold, from Amnesty International USA and Robert F Kennedy Center for Human Rights, May 5 1999
* Freeport McMoRan Copper and Gold Inc announces Judge Gabrielle McDonald as Human Rights Adviser, 29.11.99
* Papuans from Timika say: withdraw army and police from Timika, 12.1.00
* Residents protest against Freeport, 17.1.00
* OPM International Office Malmo – Political Statement Feb 2000
* Letter from Abigail Abrash of RFK Center for Human Rights to Ward Morehouse of Committee on International and Public Affairs, New York, 15.2.00
Video testimony from victims of human rights abuse
Witness statement by Juliet Peck
Brief comments by Carmel Budiardjo
Activities of Freeport Indonesia’s parent companies elsewhere which shed light on the behaviour of PTFI in West Papua:
1. Freeport McMoRan
1.1 Freeport at Eppawala in Sri Lanka: witness: Bala Tampoe (who will present the whole of this section of the case).
FreeportMcMoRan was the parent company of Freeport Phosphates which controlled Agrico Chemicals which was involved in a JV which is in the process of opening a huge phosphate/gypsum mine in north central Sri Lanka. The Save Eppawala coalition of local villagers, trade unionists, politicians and religious leaders is determined to stop the destruction of this enormously significant cultural and historic site and the forced removal of its people. The Sri Lankan government did a deal with Freeport saying that it could remove local people without compensation.
Documentation: Bala Tampoe will provide documentation
1.2 Freeport’s treatment of its critics outside West Papua and Sri Lanka
Video testimony from Steve Feld regarding Freeport McMoRan in the USA
Review of documentation:
* Freeport McMoRan at home and abroad, July 31/Aug 7 1995
* Freeport denies serious damage accusation, 30.11.95
* Freeport/RTZ fights back, Feb 1996
* Freeport/Rio Tinto – more expansion, more unrest, November 1997
* Amungme class action reinstated, 6.3.98
* The Amungme gain upper hand over Grasberg, 10.7.98
* Mama Yosefa takes Amungme and Lemasa class action lawsuit claim against Freeport to the UN, 14.5.99
2. Rio Tinto
Rio Tinto has an interest not only in PTFI but in PTFI’s parent company Freeport McMoRan (around 14%) on whose board Rio Tinto has two directors. It is therefore directly implicated in all decisions taken by both Freeport McMoRan and PTFI. (Freeport McMoRan controls Freeport Copper and Gold which controls PTFI, whose Grasberg mine is the biggest gold mine and third biggest copper mine in the world.)
Before the publication of Bishop Muninghoff’s report, Rio Tinto had effectively recapitalised Freeport, which was strapped for cash for expansion and had already sold off some of its real estate in West Papua. Freeport was looking for a global partner and part of the reason for this was to spread its defence against mounting criticisms of the human rights impacts of its operations. Since it became involved at Grasberg, Rio Tinto has acknowledged that it is a major funder of the mine, but when it comes to human rights violations, it always claims that it is not guilty because it is Freeport which manages the mine. However, Rio Tinto’s involvement is not only as a partner but as the single biggest equity holder in Freeport and with executive responsibility. The Joint Venture between Freeport and Rio Tinto for exploration at Grasberg is a 60/40 stake in the expansion of the mine as well as further exploration. The agreement between the two companies was that Rio Tinto would provide the money for expansion and exploration, Freeport would do the work and Rio Tinto would have free access to the product. But Rio Tinto would only get its share of the expanded output when the mill throughput had increased from 80-90,000 tonnes a day to 118,000 tonnes a day. It was therefore in Rio Tinto’s interests to ensure that expansion occurred as quickly as possible, because until throughput reached the 118,000 tonne per day level Rio Tinto would get no return on its investment, which amounted to approximately one billion dollars.
(The contract in total involved $1.75 billion but that included expenditure on the exploration JV and the purchase of additional equity: 6.5% of PTFI equity was reserved for Rio Tinto but has not yet been purchased. Rio Tinto was able to buy up to 18% of PTFI, at which point it could decide whether or not to buy the optional 6.5%. Freeport could not have expanded its output to the extent that it has without this huge cash injection.)
There is a disparity between the principles laid out in Rio Tinto’s The Way We Work and the practice at Grasberg; there is a disparity also between Rio Tinto’s ‘social contract’ with local communities around its Lihir operations in PNG and Grasberg. It was because of criticisms of its involvement with Freeport that Rio Tinto decided to develop a neutralising strategy with big NGOs and agencies. A document produced by the Control Risks Group (documentation to be provided) looked at the problems which British companies are having in presenting an acceptable image to environmental and social action groups. It used Rio Tinto’s experience with Freeport as an example of these difficulties. Rio Tinto’s entry into the Grasberg project reignited an international alliance against Rio Tinto and focussed other people’s attention on what was going on in West Papua. Rio Tinto has initiated a number of "consultations" with "stakeholders" which have taken place in Britain and elsewhere, far removed from its mining operations and without the involvement of directly affected communities. The "stakeholders" have been north-based environmental, human rights and development NGOs and agencies, and their willingness to sit down with the company to discuss the impact of its operations on communities not represented in the discussions has allowed the company to develop a veneer of respectability while it continues business as usual on the ground.
Review of documentation:
* Grasberg keeps on growing, 26.9.97
* The Way We Work – Rio Tinto Jan 1998
* EXTRA Corporate community politics: a comparison between Freeport/Rio Tinto and Lihir
2.1 Parallels in the Philippines:
Witness testimony by Geoff Nettleton, anthropologist and co-ordinator of Philippine Indigenous People’s Links, concerning manipulation of community consultation processes by the company in Mindanao.
2.2 Manipulation of critics elsewhere:
Witness testimony by Juliet Peck concerning Rio Tinto’s NGO Forums in Britain.
Summing up by Richard Solly
The return of a semblance of democracy in Indonesia has been the occasion for greater international attention to independence struggles in Aceh, East Timor and West Papua. The Indonesian government has conceded the legitimacy of East Timorese aspirations but not those of West Papua. Government tolerance of the independence process is less now than it was a year ago. For more than thirty-five years, West Papua has been occupied territory. Indonesian occupation was given spurious legitimation by a fraudulent "Act of Free Choice" in which West Papuan community leaders picked by the Indonesian government were intimidated into "voting" for integration into Indonesia. One of the Indonesian government’s leading motivations for this process was the presence of the Ertsberg copper deposit in West Papua, from which it wished to benefit financially. The contract between the Indonesian government and Freeport was signed in 1967, before the views of the West Papuan people as to incorporation in Indonesia were formally obtained. The process by which those views were obtained in 1969 was manipulated by the Indonesian government.
The contract gave the company a huge lease area and enabled the company and the government to remove people from the area. It only spoke in the loosest possible terms of compensation and resettlement. There has been widespread campaigning against the text of the contract. Rio Tinto has agreed that it should be changed but Freeport McMoRan’s contract with the Sri Lankan government from the late 1990s is very similar.
Local people in West Papua have clearly been deprived of the benefits of the mine, but the contract gives few benefits to the people of Indonesia, and the Soeharto family and its associates certainly benefited inordinately. Royalties were set at a very low level. They have recently been increased to 3.5% but for a long time were only 1%. The provincial government had virtually nothing and the local people absolutely nothing until Freeport came up with its "1% fund" which a majority of the local Amungme people continue to reject both in principle and in practice.
The operation of the mine has deprived local people of the use of their land; it has torn off the top of a mountain sacred to the Amungme people and dumped more than 200,000 tonnes of untreated tailings daily into the Ajkwa River system. Fishing has been damaged, water poisoned, river banks destroyed. Despite company-commissioned environmental studies suggesting that the mine is as clean as it can be given the lack of tailings containment, local people’s concerns about the impacts of its waste disposal on their livelihoods have not been addressed. For two years now there has been a case against the company, citing these violations and other more specific human rights violations. Instead of allowing the courts to make a judgement in the matter, the company has fought strenuously to avoid the issues being heard by a US court.
People who protested against Freeport were put into company containers and locked up without adequate air or light as punishment. The military were assisted in this illegal, inhumane imprisonment by company security personnel. Other human rights abuses have occurred which have not been instigated by the company but have certainly been at the service of the company, aimed either at protesters against the company or against people calling for independence, raising the Morning Star flag, where the company is implicated because of the services which it provides to the military through barracks and possibly company transport. West Papua has been the most militarised area of Indonesia outside East Timor, with a concentration of forces around the Freeport mine.
The first accusations of direct Freeport complicity in specific human rights violations date from 1992 and are in the report produced in 1994 by the Australian Council for Overseas Aid, ACFOA, an umbrella group of various Australian NGOs. The report was criticised for being inaccurate but it triggered demands that the US and Australian governments should carry out their own studies. Both Embassies did so but the results were never published. Meanwhile, the Catholic Bishop of Jayapura, Bishop Muninghoff, commissioned an investigation with the help of people in the Freeport concession area, and this confirmed specific instances of repression cited in the ACFOA report concerning beatings, imprisonment, torture and one killing where Freeport was complicit in the actions of the military because the company had invited the military in.