Malaysian Bar Urges the Malaysian Government to Accede to the Rome Statute of the International Criminal Court without Delay
The 10th Assembly of State Parties to the Rome Statute of the International Criminal Court opened at the United Nations in New York City on 12 Dec 2011. Both the Malaysian Government and Malaysian civil society (represented by the Malaysian Bar), will attend these meetings.
Malaysia participated in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome in 1998. It was also a signatory to the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. However, it has yet to become a State Party to the Rome Statute.
In March 2011, the Malaysian Government announced its intention to accede to the Rome Statute.
The events leading up to this announcement were encouraging. On 27-28 May 2010, the Malaysian Minister in the Prime Minister's Department in charge of Law and Parliamentary Affairs, Dato' Seri Mohamed Nazri Abdul Aziz, made a promise at the Kampala meeting of the Parliamentarians for Global Action to submit the accession papers to the Rome Statute to the Malaysian Cabinet upon his return from that meeting.
Then on 7 June 2010, all members of the Dewan Rakyat, the lower house of the Malaysian Parliament, unanimously supported a series of 15 motions in the aftermath of Israel's attack on the fleet of ships carrying humanitarian aid bound for Gaza. Two of the motions are of particular relevance:
Motion 5: calling on like-minded countries to bring a resolution to the United Nations Security Council to refer Israel's attack (on the aid ship) to the International Criminal Court.
Motion 7: proposing that Turkey consider action under the Rome Statute of the International Criminal Court.
Then in February 2011, the Malaysian Parliament played host to a two-day Asia-Pacific Regional Consultation on the Universality of the International Criminal Court. This was organised by the Parliamentarians for Global Action. The Consultation brought together parliamentarians from Bangladesh, Indonesia, the Maldives, New Zealand, the Philippines, Vanuatu and Malaysia. It was also attended by the Speaker of the Parliament of Kiribati, the Attorney-General of the Maldives, and additional participants from Ireland, Italy, South Korea, the Netherlands and Malaysia. The keynote address of the Consultation was given by the guest of honour, H.E. Judge Sang-Hyun Song, the President of the International Criminal Court.
The Malaysian Bar was pleased to have participated in this Consultation. The Malaysian Bar, together with the Malaysian Coalition for the International Criminal Court, has been involved in the campaign to persuade the Malaysian Government to accede to the Rome Statute since 2006. This would be consistent with Malaysia's membership in the United Nations Human Rights Council, which is responsible for upholding the highest possible standards in the promotion and protection of human rights. The Malaysian Government should honour its promises and pledges to meet those standards when it sought and obtained re-election to the Human Rights Council in 2010.
What is interesting is that three of the countries that participated in that Consultation have since gone on to become State Parties to the Rome Statute. On 23 Aug 2011, the Senate of the Republic of the Philippines passed SRN546, concurring in the ratification of the Rome Statute. On 30 Aug 2011 it deposited its instrument of accession. On 14 June 2011, the Parliament of the Maldives voted to accede to the Rome Statute. On 21 Sept 2011, it deposited its instrument of accession. On 2 Dec 2011, Vanuatu deposited its instrument of accession.
The speed in which these countries have commenced and completed the process of accession to the Rome Statute, especially that of the Maldives, is exemplary and is to be applauded. This is to be compared and contrasted with that of Malaysia.
Although it hosted the Consultation in February 2011, and announced in March 2011 its intention to accede to the Rome Statute, the Malaysian Government has still not deposited its instrument of accession. The oft-given and oft-repeated reason for this is that the Malaysian Government wishes to ensure that implementing legislation is in place and that its other domestic legislation is in accord with the requirements of the Rome Statute before it will actually accede to the Rome Statute.
Some of the issues it has raised pertain to compatibility with Syariah law, the position of the Yang di-Pertuan Agong, the constitutional Supreme Head of State of Malaysia, and the existence of the death penalty in Malaysia. No time-frame for any implementing legislation has been announced. Indeed, the particular division of the Ministry of Foreign Affairs tasked with drafting the implementing legislation has been disbanded and its responsibilities transferred to other divisions.
One has only to look at countries like Afghanistan, Bangladesh, Chad, Jordan, Maldives, and Tunisia to see that countries with a predominantly Muslim environment have been able to accede to the Rome Statute. Further, one has only to look at Australia, Belgium, Cambodia, Canada, Denmark, Japan, Jordan, the Netherlands, Norway, Spain, Sweden and the United Kingdom to see that countries with a constitutional monarchical system of government have also been able to accede to the Rome Statute. The Malaysian Government need only consult with the governments of these nations to understand how concerns about the Syariah and the constitutional monarchy have been addressed.
The Malaysian Bar is of the view that it is not a pre-requisite and neither is there a necessity for domestic implementing legislation to be in place prior to a country acceding to the Rome Statute. In order to identify immediately with the goal to end impunity for crimes against humanity, genocide and war crimes, it is more important for countries to accede to the Rome Statute as quickly as possible. Thereafter, work can progressively be undertaken to bring domestic legislation into compliance with the requirements of the Rome Statute, and for the introduction of implementing legislation.
The Malaysian Bar wholeheartedly concurs with Malaysian Minister in the Prime Minister's Department in charge of Law and Parliamentary Affairs, Dato' Seri Mohamed Nazri Abdul Aziz, that joining the International Criminal Court would not threaten or compromise Malaysia's sovereignty. The fact that the International Criminal Court operates on a principle of complementarity means that the international jurisdiction of the International Criminal Court is carefully balanced with the jurisdiction of the Malaysian courts.
In order for the international community to comprehensively address the issues of crimes against humanity, genocide, war crimes and crimes of aggression, the support of all countries is important. Malaysia as a leading nation of the Organisation of Islamic Cooperation, the Non-Aligned Movement, the Commonwealth and the Association of Southeast Asian Nations, and as a member of the United Nations Human Rights Council, should pursue a course of action commensurate with the role that it seeks to play in these organisations and bodies.
As it stands, in the context of Southeast Asia, only Cambodia, the Philippines and Timor-Leste are members of the International Criminal Court. Thailand signed (on 2 Oct 2000) the treaty that brought about the Rome Statute but has yet to accede. As such, only these three countries will enjoy the right to nominate candidates to all the organs of the International Criminal Court, including the offices of judges, the Prosecutor and the Registrar. We note that the Philippines, which has only recently become a State Party (on 1 Nov 2011), nominated a candidate to become a judge of the International Criminal Court from the Asia-Pacific region. Their candidate was successfully elected yesterday, 12 Dec 2011.
The Malaysian Bar, and also on behalf of the Malaysian Coalition for the International Criminal Court, calls upon the government of the member states of the Rome Statute to continue their engagement with and encouragement to the Malaysian Government to expedite the depositing of the instrument of accession to the Rome Statute. We also call on them to offer the relevant expertise to the Malaysian Government in its drafting and implementation of the necessary domestic legislative changes.
The Malaysian Bar, and also on behalf of the Malaysian Coalition for the International Criminal Court, calls upon the Malaysian Government not to delay any further and to deposit its instrument of accession to the Rome Statute immediately.
Lim Chee Wee
13 Dec 2011