Indonesia

Relations between Washington and Jakarta continue to deteriorate because of the activities of the Indonesian armed forces (TNI). On May 21, 2003, the U.S. Senate Foreign Relations Committee voted unanimously to reinstate a ban on military training with the TNI, and the Bush Administration has given no sign that it will seek to lift the ban.

Since November 1992, when the Indonesian army massacred unarmed protesters in Dili, East Timor, the U.S. Congress and consecutive Administrations have focused policy on persuading the TNI to reform. Although International Military Education and Training (IMET) was banned through most of the past decade, varying opportunities for training and exercises intended to professionalize the officer corps were offered to the Indonesian armed forces. Yet there is little evidence that the TNI is reforming.

The murders of two Americans in Papua in August 2002 and the behavior of the TNI in current operations in Aceh illustrate the frustration of the current Administration and Congress.

In August 2002, 10 American teachers from the Freeport McMoran Mine in Papua, Indonesia, were shot in an ambush. Two of the Americans, Rick Spiers and Ted Burgon, died of their wounds. Indonesian police investigators admitted that there was a strong possibility that members of the Indonesian military carried out the ambush. The police, however, were unable to arrest the suspects because members of the Indonesian military are not subject to civil law.

The TNI denied involvement, but the military did not cooperate fully with subsequent investigations by the U.S. Federal Bureau of Investigation (FBI). Many officials in the American government believe that a preponderance of evidence points to TNI duplicity.3 Some Washington analysts link the attack on the Freeport mine employees to protection rackets the Indonesian military operates to raise money from foreign businesses operating in Indonesia.

In Aceh, the province at the northern tip of the island of Sumatra, negotiations between the Indonesian government and the Free Aceh Movement (an insurgent group) broke down in May 2003. A major TNI offensive against the insurgents followed collapse of negotiations. Washington fully recognizes and supports the territorial integrity of Indonesia; however, TNI operations to suppress the separatists have been accompanied by numerous reports of human rights abuses against civilians.

For the TNI to be accountable, it must become institutionally subordinate to the civilian government. The civilian-led Defense Ministry must supervise the TNI command structure. Furthermore, all military personnel must be subject to civil law. To control the TNI's propensity to engage in money-raising activities that influence TNI behavior, its current prebend4 system must be thoroughly audited, its books opened to public scrutiny, and its activities regulated by the government. The eventual goal is that the government would pay soldiers a living wage and fully fund the TNI, removing the need for the TNI to seek off-budget funding.

During the two years following the downfall of President Suharto, the legislature and successive presidents made impressive gains in subordinating the military. Serving officers no longer hold civilian jobs. The links between the TNI and GOLKAR, Suharto's political party, have been severed.5 Next year, the police and the TNI will give up their seats in the national legislature. Nonetheless, reform of the TNI has come to a halt, and it is time to pressure the Indonesian government to restart the process.

President Megawati Sukarnoputri's government is responsible for the conduct of Indonesian troops and for the safety of American citizens living and traveling in Indonesia. President Megawati and the national legislature have demonstrated that they possess the constitutional and legislative authority to restrain the behavior of the TNI. Therefore, U.S. policy toward Indonesia must change from trying to persuade the TNI to reform voluntarily to pressuring President Megawati to reform the TNI from the top down in order to bring accountability, transparency, and civilian control to the TNI.

The Philippines

The Philippines is fighting two terrorist groups, the Abu-Sayyaf Group (ASG) and the communist New People's Army (NPA). In addition, Manila is struggling with the Moro Islamic Liberation Front, a Muslim insurgency on the southern island of Mindanao. Along with its terrorist activities, the ASG also runs a lucrative kidnapping-for-ransom business from the southern island of Basilan. Its victims have included Americans.

The NPA, the military wing of the Philippine Communist Party, has 6,000-8,000 fighters operating in the highlands of the central island of Luzon, within striking distance of Manila. The MILF, with its estimated 15,000 fighters, controls part of Mindanao. The ASG and MILF also have links with al-Qaeda and the regional terrorist group Jemaah Islamiyah, which was responsible for the Bali bombing in October 2002.

Although the Armed Forces of the Philippines (AFP) and the police conduct operations against terrorist groups, before September 11, 2001, the scale of fighting was too limited to be decisive. The principal problem for the AFP is the lack of resources. This lack of resources not only affects the size and scope of Philippine military operations, but also lies at the root of such problems as corruption, training, and leadership in the military.

When President Gloria Macapagal Arroyo visited Washington last month, the White House announced a broad series of initiatives to aid the Philippines in the war on terrorism. The new measures include more than $95 million in military assistance, including designation of the Philippines as a major non-NATO ally, thereby allowing the Philippines greater access to American defense equipment and supplies.

The most imaginative proposal was $30 million in development assistance for Mindanao, conditioned on a peace agreement with the MILF. Rather than threatening military confrontation, the plan is designed to lure the MILF to peace talks with the government on the promise of development aid and thus to remove from the field a major obstacle to Philippine internal security.

Maritime Piracy and Terrorism

The scourge of maritime piracy continues to grow in Southeast Asia. Worldwide, piracy attacks grew from 335 in 2001 to 370 in 2002. There has been another steep increase in attacks in the first quarter of 2003. Topping the list of countries in which pirate attacks occur is Indonesia, with 103 reported attacks in 2002.6

Indonesia's vulnerability to maritime piracy demonstrates that shipping in the sprawling archipelago is also vulnerable to terrorist attacks, with terrorists and pirates living and operating with little interference from domestic police, security forces, and international law enforcement. In its May 2003 annual report, the International Institute for Strategic Studies (IISS) sharply criticized Indonesia's lack of commitment to the battle on terrorism. The IISS also noted a reluctance of Indonesian authorities to uncover and arrest the terrorist networks that still operate freely in Indonesia.7

Some terrorist and insurgent groups have discovered the vulnerability of international shipping in Indonesian and adjacent waters and have begun to mount attacks from Indonesia's shores against international shipping. The Free Aceh Movement is suspected of involvement in two pirate attacks in Indonesian waters,8 and the Philippine terrorist group Abu Sayyaf is suspected in another attack off the island of Jolo in the Philippines.9

The ICC International Maritime Bureau (IMB) comments in its 2002 annual report on the vulnerability of supertankers to terrorist attacks. The report specifically addresses the terrorist attack against the French supertanker MT Limburg: "A small boat packed with explosives rammed into the tanker causing extensive damage."10 Although the attack occurred in the Gulf of Aden, the IMB warned all tankers in the Middle East and Indonesia of the threat. The problem is that large ships are too slow and ponderous to avoid a fast-moving small boat intent on ramming the ship. In fact, the IMB states, "No shipboard response or action can protect the ship in these circumstances."11

Since a ship can do little to defend itself against terrorist attacks, the responsibility for protecting shipping must be assumed in part by the coastal states. The IMB recommends that the coastal states specify channels for tankers and that maritime security forces restrict access of small vessels and closely monitor vulnerable shipping.12 The majority of pirate attacks actually take place while the ship is anchored or berthed. Efforts by coastal states to improve port security against maritime terrorists would have the collateral benefit of reducing piracy.

North Korea and the Nuclear Issue

The principal players in resolving the North Korean nuclear issue--the United States, the Republic of Korea, Japan, China, and the Democratic People's Republic of Korea (DPRK)--will all be present at the ARF meeting.13 North Korea's missile and nuclear capabilities and proliferation activities clearly threaten not only Northeast Asia, but also the world. Moreover, North Korea's flagrant violations of United Nations and nonproliferation treaties, as well as its violations of agreements with the United States and South Korea, threaten global efforts to curb the spread of weapons of mass destruction (WMD).

North Korea's pursuit of other illicit activities also poses a serious security challenge to Asia. Without a viable and functioning economy, the Pyongyang regime has chosen to dedicate its international trade to dangerous and illegal activities, such as arms sales, counterfeiting, and drug and human trafficking. In 2001, North Korea's exports from legitimate businesses totaled just $650 million, while income from illegal drugs alone ran between $500 million and $1 billion. In addition, Pyongyang earned more than $560 million from missile sales and circulated more than $100 million in counterfeit U.S. currency in the global economy.14

Economic deprivation, as well as brutal political repression has caused thousands to flee North Korea and seek refuge in neighboring countries. China faces a humanitarian emergency with an estimated 100,000 to 200,000 North Korean refugees already in the border area. The deepening famine in North Korea, compounded by arguably the worst economic mismanagement of any country in history, promises that the refugee crisis will only become more serious.

The ARF meeting provides a unique multilateral opportunity for the region to address these pressing issues by coordinating efforts to counter North Korea's threatening behavior and humanitarian disaster. Pyongyang has indicated its intent to proliferate its nuclear weapons materials, and only a strong multilateral effort can address this very serious challenge. The ARF should meet this challenge head-on by preempting North Korean proliferation through multilateral action.

Maritime Frictions

For the past half-century, American naval vessels and surveillance aircraft have patrolled international waters and airspace in the Western Pacific. In recent years, Chinese forces have harassed these U.S. craft. In April 2001, a Chinese warplane struck an American reconnaissance aircraft flying in international airspace. In late 2002, Chinese ships and aircraft harassed two American naval oceanographic ships, the USNS Bowditch and the USNS Sumner, in international waters.15

This behavior undoubtedly reflects a new Chinese policy of assertiveness in international waters of the Western Pacific. In February, the Xinhua news agency reported that China would "expand its maritime surveillance and control rights from 50 nm [nautical miles] to 100 nm by the year 2010 and further expand its jurisdiction to the entire 200 nm exclusive economic zone by the year 2020."16 Despite China's accession to the 1982 United Nations Convention on Law of the Sea (UNCLOS), China clearly considers the 200 nm exclusive economic zone (EEZ) as "territorial seas" rather than just waters within 12 nm from shore.17

Even earlier, in January 2003, American press accounts reported that China had adopted new statutes prohibiting foreign military "survey and mapping" operations in the 200-mile EEZ. In response, an American official was quoted as saying that "we have continued to maintain over the years that our military surveys are a high-seas freedom and are not subject to restrictions placed within any EEZ."18

Although the United States has not ratified the UNCLOS, it does consider military and non-commercial state-owned ships immune from foreign jurisdiction (as per UNCLOS Articles 58 and 59) and considers all surveillance and survey activities for non-commercial purposes to be legitimate outside foreign territorial waters (i.e., beyond the 12 nautical mile limit).19

There may not be a way to bridge the gap between the U.S. demands for "freedom of access" on the high seas20 and China's demands that American military and non-commercial government vessels first gain Chinese authorization before conducting maritime surveillance within 200 nautical miles of Chinese land under Articles 246 and 248 of the UNCLOS. Given the Beijing government's extensive territorial claims in the South China Sea, in the Ryukyu chain, and especially on Taiwan, China's actions promise continued friction not only with the United States, but with all other Asia-Pacific nations with overlapping maritime claims.21

South China Sea Code of Conduct

Last November, at the eighth ASEAN summit, China and the 10 ASEAN nations reached a watered-down accord on avoiding armed conflict over contested islands and exclusive economic zones in the South China Sea, the world's second busiest sea-lane. The non-binding Declaration on the Conduct of Parties in the South China Sea called on all parties to:

• Reaffirm their commitment to freedom of navigation in the South China Sea;
• Agree to resolve territorial disputes peacefully and pledge self-restraint in activities, such as inhabiting still uninhabited features, that could spark disputes;
• Give advance notice of military exercises in the area;
• Provide humane treatment to persons in danger or distress; and
• Cooperate in marine research, safety of navigation, search and rescue operations, and combating piracy.22

While the ASEAN nations agree among themselves that a binding "code of conduct" for disputed areas is necessary to preserve peace, China's refusal to restrain its activities in the area has led only to a non-binding political declaration. Such non-binding accords have been negotiated at several previous ASEAN and ARF meetings; yet China has continued to violate them. Among the most egregious examples has been China's construction of permanent structures on submerged reefs in Philippine waters--a right China claims under the UNCLOS even though it is based on questionable claims to a 200-mile economic zone around islands that China claims as its territory but does not occupy.

Recommendations

The ASEAN Regional Forum offers an outstanding opportunity to address a variety of important political and security issues. While in Cambodia, Secretary Powell should:

• Enlist the ASEAN Regional Forum participants in redoubled efforts to eradicate trans-national and domestic terrorist groups. Many terrorist organizations still operate in Southeast Asia. These groups are becoming major security problems throughout the Asia-Pacific area.
• Encourage Indonesian President Megawati to continue reforming the TNI. For the Republic of Indonesia and the United States to have normal military-to-military relations, the TNI must be reformed. President Megawati and the Indonesian legislature must work together to make the TNI transparent, accountable, and subject to civilian control. The military must also become subject to civil law. Additionally, transparent audits of TNI funding sources must be the first step in fully funding the military.
• Ask others to support a peaceful settlement of one of Southeast Asia's longest-running insurgencies. The MILF has already responded positively to President Bush's initiative on Mindanao and offered a 10-day cease-fire beginning on June 2. Both Philippine President Arroyo and MILF Vice Chairman Ghazali Jaafar have expressed their desire for a politically negotiated settlement.23
• Exhort the countries of ASEAN to address maritime and port security. The region is vulnerable to maritime terrorism, and seaport security can reduce the risk of terrorist attacks and incidences of piracy.
• Engage the regional countries in dialogue to resolve tensions with North Korea. The United States should call for a supporting declaration condemning North Korea's pursuit of nuclear weapons and its withdrawal from the Nuclear Non-Proliferation Treaty. ARF should also agree that it has a regional responsibility to persuade North Korea to abandon its WMD programs. Individual ARF members and participants should be strongly urged to persuade North Korea to abandon its nuclear programs and its proliferation activities.
• Urge ARF to consider adopting measures to curtail North Korea's proliferation of missiles, arms, drugs, and counterfeiting in the region. Interdicting North Korea's illicit economic activities not only serves the national security interests of the individual members and participants of the ARF, but also promotes stability in the region. ARF countries can cooperate to diminish North Korea's ability to profit from these harmful activities by sharing intelligence and data on North Korean shipments, financial transactions, and communications.
• Find ways for China to address the North Korean refugee issue responsibly. China's current policy is to categorize North Korean refugees as economic migrants despite the reality that North Koreans are fleeing their country's severe political and economic repression and persecution. Moreover, because China refuses to grant refugee status to the North Koreans who have fled into China, they are forcibly repatriated to North Korea where they face severe torture and punishment, if not certain death. The nations of the region should urge China to grant refugee status to North Koreans fleeing to China and urge South Korea to work closely with China to coordinate eventual resettlement of these refugees in South Korea. Other ARF participants, including the United States, Canada, Australia, and the European Union, should seriously consider offering asylum to North Korean refugees, as they did for the Southeast Asian "boat people" in the 1980s.
• Offer China assistance for refugee relief and seek cooperation from other countries. The United States should urge China to accept formal assistance from the United Nations High Commissioner for Refugees (UNHCR). If China were to grant North Korean asylum seekers official refugee status, the UNHCR could set up and maintain refugee camps in China that would provide protection and basic humanitarian needs for the North Koreans. Members of the U.S. Congress have indicated a willingness to provide bilateral assistance to China for the housing and welfare of North Korean refugees, and Secretary Powell should offer to approach Congress with a detailed outline to provide that assistance.
• Restate a commitment to freedom of navigation. The Secretary of State should use the ARF as a forum to restate America's insistence on freedom of navigation and non-commercial navigational survey activity in international seas and airspace regardless of EEZ claims.
• Support a binding South China Sea code of conduct. Secretary Powell should reiterate American support for a binding code of conduct in the South China Sea.24 The United States must also make clear its significant interest in freedom of navigation, encouraging the rule of law in the management of maritime disputes, and protecting the credibility of U.S. forces as a balancing and stabilizing presence in the region.
• Seek an ASEAN South China Sea accord with or without China. The United States should also be prepared to make a unilateral declaration that it will respect the negotiated results of an ASEAN covenant on South China Sea issues that supports American interests. The prospect that ASEAN might reach an accord on the disposition of maritime claims in the region that could gain international recognition would oblige China to join or face the increasing concerns in the region that stem from its overbearing territorial and EEZ claims in the South China Sea.
• Recommend that ARF include defense ministers and other senior defense officials. Inclusion of defense officials will add to the impact and gravity of the forum.

Conclusion

The ASEAN Regional Forum provides an outstanding opportunity for U.S. policymakers to advance important national interests in such areas as terrorism, piracy, reform of the Indonesian military, North Korean refugees, and freedom of navigation in the South China Sea. While there is little likelihood that major problems will be fully resolved during the ARF, it is important that the United States take the opportunity to assert its positions strongly, either publicly in open session or confidentially to ARF partners as appropriate.

Dana R. Dillon is Senior Policy Analyst for Southeast Asia, Balbina Y. Hwang is Policy Analyst for Northeast Asia, and John J. Tkacik, Jr., is Research Fellow in China Policy in the Asian Studies Center at The Heritage Foundation.