Rome Statute misconceptions

A RECENT newspaper opinion piece defending Malaysia’s decision to withdraw from ratifying the International Criminal Court’s Rome Statute contains a number of factual and historical errors that need to be corrected, as they may cause confusion among members of the public regarding this important international treaty.

I regret to say that the article is mistaken about the provisions of the Rome Statute, the role of the United Nations Security Council and of Japanese history and the history of World War II.

Firstly, the writer observed that in acceding to the Rome Statute, the prior and comprehensive consultations on the part of the government were not comprehensive after all. But the fact is, under our system, ratification or accession to an international treaty is an executive decision, in that it is the Cabinet that decides whether or not Malaysia should ratify an international treaty. The Cabinet does not require the approval of Parliament nor the Malay Rulers or even that of the Yang di Pertuan Agong.

The writer also contended that since Article 27 of the Statute does not recognise sovereign immunity or official capacity, this therefore gives the International Criminal Court (ICC) jurisdiction over the Yang di Pertuan Agong who, under Malaysia’s Federal Constitution, is the supreme commander of our armed forces. This is the same argument used by the four academics in their controversial advice to the Council of Rulers.

To buttress this argument, the writer cited the historical precedent whereby Emperor Hirohito of Japan declared war on the United States in 1941. She claimed that Emperor Hirohito was a Constitutional monarch and could have been tried for the crime of genocide by the Tokyo Criminal Tribunal that was set up after the war ended. However, Emperor Hirohito was spared because General Douglas MacArthur, the Allied commander in occupied Japan, exonerated him.

However, the historical fact is that Emperor Hirohito was an absolute monarch and not a Constitutional monarch. In fact, he was worshipped by the Japanese people as a descendant of the Sun God. His status was changed to that of Constitutional monarch only after the end of World War II. Therefore, the Japanese historical incident does not serve as a useful guide for Malaysia.

In the case of our Agong, under our Constitution, he is a Constitutional monarch who acts on the advice of the elected Prime Minister. Further, if in the unlikely event that our armed forces personnel were to commit any of the heinous crimes covered by the Rome Statute – genocide, war crimes, crimes against humanity and the crime of aggression – the Statute provides that it is the courts of a member state that will have to try them.

This means it is the Malaysian courts that will try the perpetrators and not the ICC. The ICC will only step in in the event that a member state is unable or unwilling to prosecute its nationals who commit any of the above crimes. This would only happen in the case of failed states. In other words, the ICC is a court of last resort.

The author further asserted that the ICC is a tool of the UN Security Council. This shows poor understanding of the role of the Security Council, specifically relating to the Rome Statute. Under Article 13(b) of the Statute, the Security Council can refer a situation in which any of the crimes within the jurisdiction of the ICC appears to have been committed, to the ICC prosecutor.

The writer seems to be unaware that three of the most powerful members of the Council , namely the United States, Russia and China, are not parties to the Rome Statute, for obvious reasons. It is highly unlikely that any draft resolution proposing a referral to the ICC or sanction against a UN member state for breaching the Rome Statute would be supported by the above three permanent members, as it would be most hypocritical on their part to do so, and would open them to criticisms and attacks by the other members. That is how the Council operates, there being no democracy therein.

The writer mentioned a number of countries that experienced genocide but failed to mention that all those countries were among the first to sign and ratify the Rome Statute on account of their horrendous and tragic experience. Many of these countries have Constitutional monarchies. Should we wait for such a horrific tragedy to occur in our country before we accede to the Statute? That would be far too late. Hence the vital importance of acceding to the Statute and not withdrawing from it, to prevent or pre-empt any such tragedy occurring in our beloved Malaysia.

The writer also observed that Malaysia might find itself in an embarrassing and difficult situation if any foreign leader like former Sudanese President Omar Hassan Al-Bashir, were to visit Malaysia; Omar was indicted in 2009 by the ICC on charges of war crimes and crimes against humanity in Darfur. But this is a poor rationale for us to stay out of the Rome Statute. It is far better for us to ratify the Rome Statute and join the international vanguard on crimes against humanity so as to warn leaders who commit any of these heinous crimes of the risks of visiting Malaysia. Indeed, we would have to inform these leaders intending to make a visit of our obligations under the Rome Statute.

Recently, a video clip went viral on social media showing a practising lawyer giving his opinion that Malaysia would have to amend the Federal Constitution if we were to accede to the Rome Statute, and that this would affect the immunity of the Agong.

This is a completely erroneous assertion. Under international law, when a country ratifies or accedes to an international treaty, the country concerned is obliged to incorporate the provisions of the treaty into its domestic law so as to give effect to those provisions. Therefore, if Malaysia were to formally accept the Rome Statute, we would have to enact specific legislation to adopt the Statute’s provisions. We would not need to amend the Constitution.

And the position of the Agong remains unchanged. He remains a Constitutional monarch who acts on the advice of the Prime Minister.

DATUK NOOR FARIDA ARIFFIN Former Malaysian Ambassador to the Netherlands