Why Malaysia should ratify the International Criminal Court

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What if tomorrow the US seventh fleet positions itself in the Straits of Malacca and begins to rain cluster bombs on our cities? David Anthony explains why Malaysia should ratify the International Criminal Court.

If tomorrow the US seventh fleet positions itself in the Straits of Malacca and begins to rain cluster bombs on our cities we will not only be defenceless against such superior power, we will have no recourse to the International Criminal Court.

In the last half century 250 conflicts have erupted around the world. More than 86 million civilians, mostly women and children, not counting combat forces, died in war crimes, genocide, ethnic cleansing and aggression of monstrous proportions that have become a culture of impunity. Over 170 million people were stripped of their rights, property and dignity. Most of those who issued the orders to perpetrate such crimes against humanity have not been brought to justice.

After World War II attempts were made to address war crimes at the Nuremberg and Tokyo trials. International humanitarian laws by way of treaties, conventions and protocols have been defined but we never had a permanent international criminal court that could invoke these laws to prosecute the criminals until July 2002.

The process leading up to this began in 1998 with a United Nations-sponsored conference held in Rome represented by 160 countries. The conference adopted what has come to be known as the Rome Statute of the International Criminal Court (ICC). It took two more years before 139 countries signed the Rome Statute. It took another two years for 100 States to ratify the ICC treaty, which then entered into force and became law. Malaysia has not ratified the treaty.

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This court is seated in The Hague, The Netherlands. It is not to be confused with the International Court of Justice (ICJ), which is the principal judicial organ of the United Nations designed to deal primarily with disputes between States. The ICC is a permanent and independent institution capable of addressing the crimes committed by individuals. It became operative on 1 July 2002.

No chance

What can the ICC do? The court has jurisdiction over the most serious crimes committed by individuals who are nationals of States and on the territory of States that have ratified the ICC statute. Ratification appears to be vital for jurisdiction. There are also conditions under which jurisdiction can be invoked. The first condition is, of course, the country where the alleged crime occurred is a State Party to the ICC treaty. The second is that the country has accepted the ICC jurisdiction at least on an ad hoc basis and the third is when the UN Security Council refers the situation to the Court.

So, on the hypothesis that Malaysia is under attack by the United States, what are our chances? On condition one, we have no redress because we have not ratified the treaty. On condition two, we have not even accepted the ICC on an ad hoc basis. On condition three, we have a very slim chance or none at all because the US will most certainly block any referral because it sits in the Security Council with veto power. Any remote chance of Malaysia appealing to the ICC in the given situation is nil. Although the US did sign the Rome Statute in 2000 under the Clinton presidency, the Bush administration refused to recognise the signature. The US is overtly against the ICC.

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The ICC’s jurisdiction goes beyond the scope of foreign aggression. The court has jurisdiction over the most serious crimes committed by individuals in the form of genocide, crimes against humanity such as murder, extermination, rape, sexual slavery, the enforced disappearance of persons and crimes of apartheid inclusive of war crimes.

If such crimes of a serious magnitude are committed within Malaysia by high level government officials or military commanders, the national judicial system would be expected to handle them, failing which an appeal could be made to the ICC. Again the same conditions apply. Here the only chance open for Malaysia would be referral by the Security Council.

A necessary instrument

What has the ICC accomplished so far? On record it has not achieved very much since its establishment in July 2002. It has a staff of 250 personnel and appears heavy and cumbersome. For this year, the court has requested a budget of 94.46m euros. In 2005, the court initiated investigations in the Democratic Republic of Congo and Uganda and in Darfur, Sudan. The ICC Prosecutor’s Office is analysing eight situations on four continents including the Central African Republic and the Ivory Coast.

The Court has been busy with structural mechanisms and policy decisions in setting up a new international judicial institution. Although the ICC needs to make increased efforts to maximise its impact with affected communities to justify its mandate, the cogs of legal procedures do grind slowly. The ICC is committed to developing implementation policies and strategies.

The ICC is an important and necessary instrument that could bring about international justice. It is in the interest of citizens of all states to give it a chance to succeed and support it.

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On 7 March 2007, an Islamic International Court was mooted in Putrajaya focusing on Islamic human rights. Its aim would be to focus only on human rights issues involving Islamic nations. Well and good. Why not also support the International Criminal Court that would mete out justice irrespective of race or religion?

Finally, would that all of this was not necessary. A non-violent world for the 21st century may be an ideal but Maiiread Corrigan Magguire, Nobel Peace Laureate, believes that one of the greatest challenges for the human family is to transform our violent cultures into a non-killing, non-violent culture for the world and that it is possible to move beyond violence. At the Nobel Laureates’ Conference in Rome in November last year, she gave examples of non-violent resistance. She spoke of Gandhi and Martin Luther King, who successfully used non-violence for human rights issues; of St. Francis as a model of how to apply a holistic approach to living non-violently; and she quoted Abdul Ghaffar Khan, a great Muslim leader who demonstrated the power of courageous Islamic non-violence through the unarmed Servants of God army.

If that happens then there will be no need for an International Criminal Court. In the meantime, however, Malaysia needs to ratify the ICC Treaty.

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Hakimi Abdul Jabar
4 Oct 2016 8.39am

Ratification of the Rome Statute is the demonstration and commitment to addressing mass atrocity and gross violations of human rights. There is of course a political motivation behind this – States do not wish to be seen not to make such a commitment, in a context where a great number of other States are signing on. Nevertheless, international law and justice has a track record better than other forms of politics of giving the powerless some hope when confronted by the interests of the powerful.

Universal ratification and implementation of the the Agreement on Privileges and Immunities of the ICC (APIC) is necessary for the effective functioning of the Court and the international justice system as a whole, as it provides the ICC with the access and cooperation it requires to execute its mandate to provide justice for victims of genocide, crimes against humanity, and war crimes.