THE government should have been celebrated for its decision to accede to the Rome Statute which would have made Malaysia a party to the International Criminal Court (ICC). Instead, it was disappointingly pressured to reject an important treaty of international law that would have sent a powerful statement on Malaysia’s foreign policy.
The Rome Statute created the ICC, the world’s first permanent international criminal court with jurisdiction to try individuals for the gravest crimes under international law, namely genocide, war crimes, crimes against humanity, and crime of aggression, committed in state party territories or by their nationals. The Rome Statute was adopted on 17 July 1998 by 120 States and entered into force on 1 July 2002. As of January 2018, 123 States are parties to the Rome Statute.
The ICC was set up as part of a collective global effort to build a safer world by helping to end impunity for mass atrocity crimes, so that perpetrators are punished, and to prevent future occurrences of these crimes. This court is not for ordinary criminals – it is used to prosecute those responsible for widespread, systematic international crimes, to bring the world’s worst human rights criminals to justice, so what does Malaysia have to fear?
The gravity of the four offences cannot be overstated. These crimes have never been committed by Malaysia and just as they have no place in our history, there is no reason to suspect they will have any place in our future. But even in the unlikely event of Malaysia committing such acts, the ICC is a court of last resort. It is clear from Article 1 of the Rome Statute that the court will complement, not replace, the national criminal justice system. The ICC will only intervene when a state party is unwilling or unable to take action itself.
The main argument against the accession to the Rome Statute is that it would threaten the immunity of the Yang di-Pertuan Agong and State Rulers, as Article 27 of the Rome Statute states there will be no distinction based on official capacity. This objection serves as a stark example of the deliberate campaign of misinformation
which stifled Malaysia’s accession, as this immunity does not even exist anymore.
The immunity of the Agong and the Rulers in civil and criminal matters was removed by constitutional amendments to Articles 182 and 183 of the Federal Constitution in 1993.
Our Agong is a constitutional monarch and while His Majesty is the Supreme Commander of the Armed Forces, it is a ceremonial title. The Agong is not operationally responsible for any military actions as His Majesty is required under Articles 40(1) and 40(1A) of the Constitution to act on advice of the Cabinet. Therefore, the Agong does not have the “effective command and control” over the military which is required for criminal responsibility under Article 28 of the Rome Statute. In the implausible scenario where Malaysia’s armed forces are accused of atrocity crimes, the ICC would have no grounds to investigate the Agong.
Others have challenged the value of the Rome Statute on the basis that major powers like the United States and Russia have not ratified. Those nations have their own geopolitical realities to consider and have a vested interest in avoiding the jurisdiction of the ICC, having been involved in armed conflicts or military activities which Malaysia has not. This argument bypasses the fact that the majority of countries worldwide have ratified the Rome Statute, including many which are more comparable to Malaysia, such as other Muslim-majority countries and constitutional monarchies.
The real problem here is the deliberate misinformation, not the Rome Statute. With so little substance or constitutional support for the arguments against accession, it appears that some objectors would be content to exploit divisive politics to undermine Malaysia Baru. Unlike these efforts to mislead and derail the government’s human rights commitments, the ICC does not have a political agenda, it is a judicial institution with an exclusively judicial mandate.
The Rome Statute cannot hurt us, but what it can do is support our efforts to be part of the international community that is committed to ending impunity. Malaysia condemns the atrocities committed in Yemen, Palestine and Myanmar, and rightly so. But how can we be taken seriously if we are only content to hold others to account, but not ourselves?
This is not just about credibility, but also about having a platform to advance our commitments to international justice and holding those responsible for the gravest crimes to account. The ICC Pre-Trial Chamber I ruled in September 2018 that it has jurisdiction over the crime against humanity of deportation of Rohingya people from Myanmar to Bangladesh, as the crime was committed partly in Bangladesh, which has acceded to the Rome Statute.
The decision of Bangladesh to join the ICC has therefore provided a crucial opportunity for justice for the Rohingya people. If the ICC was to issue arrest warrants for any individuals for these crimes, state parties would be obliged to arrest and extradite them to the ICC.
Membership of the ICC also provides a deterrent against future acts of aggression, and potential remedies for crimes committed against state parties. Russia is facing international calls to accept responsibility for the downing of Malaysia Airlines flight MH17 over Ukraine in 2014, which caused the deaths of all 298 people onboard. Ukraine is not a party to the Rome Statute but has issued a declaration accepting the ICC’s jurisdiction over crimes committed on its territory at the time flight MH17 was shot down. While the success of this effort is yet to be seen, it is unacceptable that Malaysia’s hands are tied further due to our inability to join the ICC.
Malaysia’s accession to the Rome Statute should not have been objected based on spurious or exaggerated grounds. The ICC is not a flawless institution, but it has been an overall force for good, not least for the prosecution of perpetrators of atrocity crimes, but also for its deterrent effect and victim-focused approach to justice. Ratifying the Rome Statute and other international human rights treaties will not make the world perfect, but we cannot wait for perfection before we decide to participate and stand up for what is right.
All of us have a responsibility to ask ourselves what we can do to protect humanity from the most serious international crimes. Although there are no cut and dried solutions, the benefits of being a state party to the ICC is clear. Whatever way you look at it, all roads to international criminal justice lead to the Rome Statute and Malaysia would have been in a stronger position in international law and peace and security had we maintained our accession.
Eric Paulsen is Malaysia’s Representative to the Asean Intergovernmental Commission of Human Rights (AICHR).