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On 19 July 2010 the Deputy Prime Minister tabled a 15-point motion in the Dewan Negara condemning the Israeli attack on the 31 May 2010 humanitarian aid flotilla to Gaza.  This was the same motion tabled by the Prime Minister in the Dewan Rakyat on 7 June 2010.  2 points in the 15-point motion refer to the International Criminal Court.  17 July 2010 marked the 12th anniversary of the signing of the Rome Statute in 1998 that created the International Criminal Court.  We reproduce below, with permission, an article by Andrew Khoo which first appeared on Malaysiakini on 17 July 2010.

Today, July 17 2010, is International Justice Day. This is the day in 1998 when the international community came together to sign the final Act that gave rise to the Rome Statute. The Rome Statute, when it came into effect in 2002, created the International Criminal Court (ICC).

Malaysia is not a signatory to the Rome Statute, and thus not a member of the ICC. However, on June 7, 2010, the Dewan Rakyat members unanimously supported a series of 15 motions in the aftermath of Israel's attack on the humanitarian fleet bound for Gaza. Two of the motions are of particular relevance.

They are the fifth motion, calling on like-minded countries to bring a resolution to the UN Security Council to refer the Zionist regime's attack (on the aid ship) to the ICC, and the seventh motion, proposing that Turkey consider action (for the attacks) under the Rome Statute of the ICC.

The call for proceedings to be initiated before the ICC is appropriate as the drive to end impunity for crimes against humanity, genocide, war crimes and crimes of aggression can only be comprehensively addressed if the international community pursues collective action.

Given thus, it is high time Malaysia signed the Rome Statute and became a member of the ICC. It seems odd that on the one hand, we can call on the UN to refer Israel to the ICC, and to recommend that Turkey consider action under the Rome Statute.

Yet on the other hand, we ourselves have not affirmed our confidence in the Rome Statute through our very own membership of the ICC. This is akin to asking our friends to do something that we ourselves dare not do.

Excuses, excuses

One of the government's past excuses for not signing the Rome Statute has been the uncertainty about the position of the Yang di-Pertuan Agong, who by virtue of his constitutional position is technically head of the Malaysian Armed Forces.

They argued that if a Malaysian soldier ever committed war crimes in another country, the Agong may end up charged at the ICC. They cited the ICC Prosecutor's office last year filing charges against President Omar Al-Bashir, the sitting Sudan head of state, over atrocities in Darfur.

In reality this is a red herring. Countries like Denmark, Japan, Norway, Spain, Sweden and the UK have all signed the Rome Statute. Each has a system of constitutional monarchy not unlike Malaysia, and yet do not have any problems being a member of the ICC. After all, in the issue of hostilities arising out of military action, it is a question of operational chain of command, not who is ceremonially the head of the armed forces.

Can we expect a change of attitude? Interestingly, the minister in the Prime Minister's Department responsible for law and parliamentary affairs, Mohd Nazri Abdul Aziz, attended a gathering of an organisation called the Parliamentarians for Global Action in Kampala, Uganda on May 27 to 28 this year.

During that meeting, Nazri (right) informed participants that the ICC accession bill would be tabled before the Malaysian Federal Cabinet upon his return to Kuala Lumpur. Well, it has been some time since he returned from Kampala, but there has been no news yet. Is this another instance of the government saying one thing overseas, yet doing something totally different at home? We shall have to wait and see.

In any case, such a ratification cannot come at a better time. One of the ways to combat crimes against humanity, genocide, war crimes and crimes of aggression and to seek justice for their victims is to make it difficult for the perpetrators to hide from justice.

Signing the Rome Statute will send a clear signal to the international community that Malaysia shares their commitment to put an end to the culture of impunity assumed by countries that sponsor or support such activities.

When the government sought earlier this year to become a member of the UN Human Rights Council from 2010 to 2013, it stated that “Malaysia has also contributed actively to the realization of human rights in all its manifestations worldwide”.

What better way to actively contribute to the on-going realisation of human rights by becoming a member of the ICC? The government now has an opportunity to prove its sincerity in upholding its commitment to the international community and to the cause of international criminal justice.

It is time for Malaysia to sign up and be counted.


ANDREW KHOO is chair of the Human Rights Committee of Bar Council Malaysia but writes here in his personal capacity.