Blurring Public and Private Security in Indonesia: Corporate Interests and Human Rights in a Fragile Environment Nigel D. White, Mary E. Footer, Kerry Senior, Mark van Dorp, Vincent Kiezebrink, Y. Wasi Gede Puraka & Ayudya Fajri Anzas Netherlands International Law Review International Law, Conflict of Laws ISSN 0165-070X Volume 65 Number 2 Neth Int Law Rev (2018) 65:217-252 DOI 10.1007/s40802-018-0107-8 1 23 Your article is published under the Creative Commons Attribution license which allows users to read, copy, distribute and make derivative works, as long as the author of the original work is cited. You may self- archive this article on your own website, an institutional repository or funder’s repository and make it publicly available immediately. 1 23 Netherlands International Law Review (2018) 65:217–252 https://doi.org/10.1007/s40802-018-0107-8 ARTICLE Blurring Public and Private Security in Indonesia: Corporate Interests and Human Rights in a Fragile Environment Nigel D. White1 · Mary E. Footer1 · Kerry Senior2 · Mark van Dorp3 · Vincent Kiezebrink3 · Y. Wasi Gede Puraka4 · Ayudya Fajri Anzas4 Published online: 21 August 2018 © The Author(s) 2018 Abstract While legal and policy frameworks are based on a clear distinction between pub- lic and private security actors and functions, the reality on the ground in Indonesia reveals that there is a high level of corporate capture of public security services, including the military and police, who often operate alongside private security com- panies (mainly local, though there is some evidence of an emerging international presence), and the security personnel of companies engaged in the natural resources industry. This has led to serious human rights violations of indigenous peoples and other local inhabitants, who often fnd themselves entangled in protracted conficts with multinational companies over access to their land. Two case studies involving feldwork in the logging and palm oil sectors in Sumatra reveal a pernicious and deliberate erosion and violation of rights of local inhabitants across the spectrum of security actors, showing that public security actors are protecting corporate inter- ests rather than performing public functions. The implications of these fndings are considered in terms of legal responsibilities as well as access to justice. The article reasons towards what are argued to be necessary legal and policy changes. Keywords Accountability · Corporate capture · Corporate-community confict · Human rights · Indonesia · Land rights · Logging · Private military and security companies · Natural resources industry · Palm oil · Public–private security · Responsibility The research that led to this article was funded by The Netherlands Organization for Scientifc Research (NWO/WOTRO) as part of the Knowledge Platform Security and Rule of Law, under the call for applied research on the infuence of transnational challenges in Fragile and Confict-Afected Settings (Project Code W 08.400.145), 10 June 2016–10 February 2017. * Nigel D. White [email protected] Extended author information available on the last page of the article 123Vol.:(0123456789) 218 N. D. White et al. 1 Introduction There have been widespread human rights violations across the Indonesian archi- pelago by the Indonesian security sector working for or on behalf of multinational corporations (MNCs) in the commodities sector. Media, NGO and IGO reports, referred to in the course of this article, point to a range of human rights violations such as land grabbing, forcible eviction, denial of customary land rights, murder, torture, sexual violence, assault, intimidation, arbitrary arrest and illegal detention. These human rights violations have been perpetrated by members of the Indonesian National Armed Forces [Tentara Nasional Indonesia (TNI)], members of the Indo- nesian National Police [Kepolisian Negara Republik Indonesia (Polri)], especially the Mobile Brigade Corps [Korps Brigade Mobil (Brimob)], as well as local private security guards and militia, often directly linked to the MNCs involved. Successive government policy on land and natural resources has exacerbated the problem com- bined with the infuence of the military and its links to the business sector, both of which have made matters more complex. Military involvement in the economic and political life of the country is inter- twined with the history of the country since its independence, especially the New Order administration (1966–1998), when the military were rewarded with politi- cal and business opportunities for supporting President Suharto’s economic devel- opment policies.1 Suharto cultivated relationships with MNCs for the commercial exploitation of natural resources while the military and police seized lands from local communities using violence and intimidation.2 Payments were made to the mil- itary and police for security services to MNCs, including the high profle companies Exxon Mobil and Freeport-McMoRan.3 Despite reforms in the reformasi era fol- lowing the fall of Suharto in the aftermath of Asian Financial Crisis (1997–1998),4 the military and police continued to provide security to MNCs up to the present day with little regard for the human rights of local communities under government land policy.5 Democratic reforms have mainly addressed the military’s political role with limited reform of its business interests and commercial security practices.6 Increas- ing tension between the police and military, as a result of government reforms to try and separate state security actors from their business interests, have contributed to rising instability in the region and the emergence of private security actors.7 The aim of this article is to explore the relationships between security actors and businesses especially in the natural resources sector in Indonesia within the normative framework provided by international law and processes. Rather than a straightforward application of law to the facts, complex and disputed as they are, 1 Crouch (1979), p. 577. 2 Human Rights Watch (2003), pp. 12–14, 33–34. 3 Human Rights Watch (2006), pp. 45–56, 133; Down to Earth (2001); Global Witness (2005); Yunanto (2006), p. 51; Clarke (2008), p. 9. 4 Heiduk (2014), p. 304. 5 Human Rights Watch (2010), pp. 3–6. 6 Ibid., pp. 8–13; Kingsbury (2012), p. 11; Nani (2015). 7 Human Rights Watch (2006), pp. 66–70; Liss (2014), chapter 7; Sciascia (2013), p. 178. 123 Blurring Public and Private Security in Indonesia: Corporate… 219 the article proceeds from a critical basis about the inability of international law and institutions to provide a workable framework for the regulation of both public and private security actors within a developing state where authority and sovereignty, and the line between what is public and private, are difcult to locate. The article unearths the reasons behind this failure of international law, to identify the extent of abuse of individuals within communities afected by natural resources exploitation and the impunity of security actors for such abuse, and provides suggestions for the improved traction of law and increased accountability of security actors. As well as doctrinal legal analysis exposing the difculties in application of the various international legal regimes, centred on international human rights law, the study combines documented human rights abuse at the hands of security actors with two case studies on palm oil and logging in specifc areas of Indonesia. The case studies were undertaken to unearth the day-to-day reality of communities living with large scale natural resources exploitation, and to illustrate the levels of accountabil- ity for infractions of their rights. Qualitative techniques were used in the feldwork, whereby the main corpus of data was gained by conducting in-depth interviews with the stakeholders on experiences, practices and perspectives on company security. Aside from in-depth interviews, focus group discussions were also used as data col- lection techniques in order to obtain a fuller picture through the involvement of vari- ous resource persons. The data collection process was guided by questions concern- ing business practices, human rights, and social and environmental impacts. The guiding questions were designed before the research team visited the feld and were further developed throughout the research process. A snow ball sampling method was used for the process of collecting data and fnding relevant resource persons, in order to build trust among the interviewed resource persons and because the issues related to security were considered to be sensitive. As a consequence, the research had to rely on the role of gatekeepers who could facilitate the meetings between researchers and resource persons. In terms of the structure of the article, Sect. 2 establishes the principal applica- ble international legal framework within which the actions of security actors can be judged—international human rights law—to show that Indonesia has obliga- tions, and also that human rights bodies have repeatedly criticised the behaviour of Indonesian security forces, but have failed to fully understand the nature of security in that country. Section 3 explores the difculties in establishing the responsibility of the Indonesian state for human rights abuses due to the blurring of public and private security in Indonesia, while Sect. 4 deepens this analysis though the lens of ‘state capture’ whereby powerful interest groups from the military and business have seized the regulatory agenda for their own ends. The eforts of the international community to reign in the activities of private security actors are shown in Sect. 5 to be inadequate in the case of Indonesia as they are clearly focused on the Western model of outsourcing and not on the endemic blurring of public and private actors in developing countries such as Indonesia. Section 6 then explores in greater depth the relationship between business and security in Indonesia and the national laws that govern it, and engages with some of the softer forms of international regula- tion, which seem better designed to tackle the reality of the intertwined nature of the relationship, but ultimately are shown to fall short of this.