Wed, 21 May 2003

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.