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
December 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 August 2011, the Senate of the Republic of the
Philippines passed SRN546, concurring in the ratification of the Rome
Statute. On 30 August 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 September 2011, it deposited its instrument of
accession. On 2 December 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 October 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 November 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 December 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
President
Malaysian Bar
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