Accession to the Rome Statute can enable Malaysia to extend more than humanitarian aid and empty rhetorics to Palestinians. — AFP
MALAYSIA'S re-accession to the Rome Statute can be revisited, experts say, pointing out that being party to the treaty will be instrumental in taking Malaysia’s voice to a greater stage, especially in combating international crimes against humanity.
On the heels of Suhakam’s latest appeal for the country to accede to the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd) and the Refugee Convention, some experts we interviewed also suggested that Malaysia’s inability to refer Israel to the International Crime Court (ICC), among others, has often been raised as a reminder of the need for re-accession of Icerd.
On March 4, 2019, Malaysia acceded to the treaty but later rescinded it after public concerns that it would undermine the country’s sovereignty and Malay rights.
The Rome Statute establishes four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. It represents a crucial instrument in the global effort to combat impunity and hold perpetrators of the most heinous war crimes accountable for their actions at the ICC.
Constitutional expert Emeritus Prof Datuk Dr Shad Saleem Faruqi says voices opposing the ratification of the Rome Statue by claiming that it would destroy the Rulers’ immunity, Malay rights, and the position of Islam, are made on frivolous grounds.
“These fears are absolutely unfounded and bereft of logic and appear to be based on advice that is motivated by politics, not law, emotion, not reason.
“Malaysia and its military and civilian leaders have never taken part in the perfidies of genocide, crimes against humanity, war crimes, and the crime of aggression. Therefore, the leaders and other Malaysians have nothing to fear.”
Prof Shad says the ICC will go after the real culprits who order or commit mass atrocities, for instance.
“In Kampuchea, for example, Pol Pot’s Khmer Rouge henchmen Khieu Samphan and Nuon Chea were prosecuted but not Prince Norodom Sihanouk. After World War II, the Tokyo Trials prosecuted 28 Japanese leaders but not Emperor Hirohito.”
If fears over the Rulers’ immunity remain a concern, Prof Shad says it should be remembered that Malaysia did sign a treaty that did not grant immunity to the Rulers.
“Lawyer Lim Wei Jiet has pointed out that Malaysia has signed before an international treaty that does not grant immunity to rulers or public officials; the Genocide Convention 1948 was ratified by us in 1994.”
Prof Shad says under the Rome Statute, the ICC can investigate and prosecute only four core international crimes and no other offences under Malaysia’s penal laws.
“ICC prosecution can commence only if the member states are ‘unable’ or ‘unwilling’ to do so themselves. The ICC is the court of last resort.”
He stresses that the ICC’s Rome statute is in line with the Kuala Lumpur Initiative to Criminalise War, which was launched at the Perdana Global Peace Forum in December 2005.
“Our membership of the ICC may dissuade international criminals from hiding in our land, for instance. If they enter our borders, we will have legal justification to extradite them to the ICC.”
Universiti Teknologi Mara senior law lecturer Dr Ikmal Hisham Md Tah says if the government decides to accede to the treaty again, it needs to implement measures to communicate the intention better and prevent misinformation, as well as instituting amendments to local laws to give effect to the treaty.
“Yes, we may propose that again, but we need to be careful in deciding to do so due to negative public sentiment before.
“I would like to suggest that before and after we sign the Rome Statute, we need to do lots of work, including curbing misinformation, taking appropriate legislative and administrative measures including amending, modifying or enacting new domestic laws, changing administrative policies to comply with international standards to give effect to the treaty.”
He says the ratification will help, among others, with the government’s position on the Israeli-Palestinian conflict.
“With our current position on the conflict, ratification would help. Still, please do consult our authorities, including Yang di-Pertuan Agong and the Conference of Rulers, before deciding to ratify the Rome Statute due to Constitutional implications.
“When signing international treaties, we need to observe any repercussions to our institutions and society.”
Meanwhile, lawyer Andrew Khoo says, at the end of the day, Malaysia is already involved in supporting efforts against genocide such as with the cases of Palestinians and Rohingya.
Within the same vein, Khoo says like the Refugee Convention, acceding to the Rome Statute remains a higher goal.
“The more immediate goal is to determine whether we can make these offences part of Malaysian laws. Can we expand our Penal Code? For example, to say ‘Look we are going to introduce in our Penal Code an international section on war crimes, crimes against humanity’.
“And to have what is called a ‘universal jurisdiction’. For instance, I am not Malaysian and commit crimes outside Malaysia. But because I have committed these crimes, if one day I land in Malaysia, the Malaysian government can still arrest me. This is because we recognise that this is a crime against humanity.”
Khoo agrees that enacting such laws is a large stepping stone for Malaysia.
“It is. If you look at the process or the structure and framework of the Rome Statute, it says the ICC is there as a court of ‘last resort’.
“But if you can deal with it at a local level, if it [the offence] happens in your own country, or if you are willing to assume universal jurisdiction, or try someone from another country in Malay-sia, the ICC will say go ahead, all power to you.
“If your law allows you to do that, then you are already contributing to the international system.”
Khoo says the signing of the Rome Statute will make Malaysia a part of an international justice structure which fights against immunity and impunity.
Furthermore, Khoo says, signing the treaty will give Malaysia more weight in supporting or endorsing cases at the ICC.
“It will. And if you are a member of the Rome Statute, then your judges can be eligible to be elected to be ICC.
“If you are a state party to the statute, your citizens can apply to be prosecutors or staff members.”
