Demanding Swedish action over GAM is a wasted effort

Demanding Swedish action over GAM is a wasted effort

Ridarson Galingging, Lecturer, International Law, Yarsi University,
Jakarta

The government is conducting a diplomatic campaign to ask the
Swedish government to take legal actions against its citizens of
Acehnese descent who are accused of involvement in the Free Aceh
Movement (GAM).

Hikmahanto Juwana of the University of Indonesia has suggested
that the government bring Sweden to the International Court of
Justice (ICJ) because of Sweden's claim that the activities of
its citizens in Aceh cannot be classified as acts that can be
legally processed.

Hikmahanto also suggested that the government request the
United Nations Security Council to categorize Sweden as a state
that shelters terrorist or sponsors international terrorism.
Sweden, he writres, has violated international law. But is this
really the case, and can the Swedish government be held
accountable for its citizens' activities abroad in connection
with GAM?

Diplomatic efforts to convince the Swedish government to take
legal actions against its citizen for their involvement with GAM
is legitimate in international relations. Whether Sweden will
agree or not with the Indonesian arguments depends entirely on
the Swedish government.

Problems will arise in the case of pressure that can lead to
deteriorating diplomatic relations between the two countries that
have been running well so far. Based on the response of the
Swedish government thus far, there is a real possibility that
Indonesia will face a deadlock in this diplomatic offensive.

There is little information publicly available about what
exactly the Swedish citizens have been doing related to GAM. Are
they directly involved in armed violence in Aceh? Are they
financing or supplying weapons to GAM? All these acts can be
criminally prosecuted in Indonesia. The Criminal Code provisions
on rebellion can be applied. The Code can be imposed on any
person who commits criminal acts within Indonesian territory
despite that the perpetrators have foreign nationality.

But in international law the issue would come under "state
responsibility". If a person causes harm or injury to another
state, the state in which he or she is a citizen can be held
responsible if the acts are that of the state and carried out in
an official capacity.

Article 8 of the Draft Articles on State Responsibility
adopted by the International Law Commission states that: The
conduct of a person or group of persons shall also be considered
as an act of the state under international law if, (a) it is
established that such person or group of persons was in fact
acting on behalf of that state, or (b) such person or group of
persons was in fact exercising elements of the governmental
authority in the absence of the official authorities and in
circumstances which justified the exercise of those elements of
authority.

Article 11 provides that "the conduct of a persons or group of
persons not acting on behalf of the state shall not be considered
as an act of the state under international law."

There is no evidence that the activities of the Swedish
citizens associated with GAM are in any way supported, organized,
or funded by the Swedish government. No Indonesian official has
even made this allegation. The conclusion is that international
law in this dispute does not support the Indonesian position.

It would be embarrassing for Indonesia to challenge Sweden in
the ICJ on this issue because the Swedish government has not
violated any international laws or norms.

The activities of the Swedish citizens are their own
individual responsibility. Indonesia can prosecute the Swedes
associated with GAM according to Indonesian criminal law
statutes, but under international law the Swedish government has
done nothing wrong. The obvious problem for Indonesia to do this
is that the people in question are no longer in Indonesia.

What about demanding that Sweden extradite the alleged
perpetrators? In international relations, a state will not
extradite its citizens to other countries to face trial if the
acts they are accused of are not considered crimes within its own
legal system. Sweden has made it clear recently that its
citizens' activities in Aceh in connection with GAM are not
prohibited acts under Swedish law.

Given the available facts, there is no basis at all for
Indonesia to involve the ICJ in this dispute.

It is fine to propose that Indonesia should request the UN
Security Council to list Sweden as a state that shelters
terrorists and sponsors international terrorism because some
Swedish citizens had associations with GAM. But this proposal
faces two obstacles. First, we already saw that Sweden cannot be
held responsible for the independent actions of its citizens
abroad if the Swedish state had nothing to do with what they did.

And second, it is far from clear that the rebellious GAM
separatist movement can be classified as international terrorism.
International law still considers rebellions to be a domestic
matter. According to a leading international law scholar,
"International law treats civil wars as purely internal matters,
with the possible exception of self-determination conflicts.
Article 2 (4) of the UN Charter prohibits the threat or use of
force in international relations, not in domestic situations.
There is no rule against rebellion in international law. It is
within the domestic jurisdiction of states."

In taking Sweden before the UN Security Council for the
actions of Swedish citizens, Indonesia would not only fail, but
it must also anticipate the possibility of counter legal and
political attacks launched by Sweden.

The Swedish government could, for instance, ask the UN
Security Council to conduct humanitarian interventions in Aceh
for Indonesian's gross violation of human rights there.

The Council has a mandate to look into various situations that
can harm international peace and security. Terrorist activities
and gross violation of human rights that occur in one country
where it can threaten international peace and security could be
the basis for the Council to intervene.

Indonesia would have to convince the Council and the
international community that the rebellion and separatist
movement in Aceh qualify for an act that can cause harm to the
international peace and security -- while Sweden would submit
convincing evidence to support its accusations that gross
violations of human rights in Aceh fall under the Council's
mandate to preserve peace and security in the world.

The writer received his Masters of Law at Northwestern
University School of Law, Chicago.