The Coalition for the International Criminal Court (CICC) [see:
held its Asia Regional Strategy meeting in Jakarta on 7–9 May 2007.
Representatives from China, Nepal, Cambodia, Vietnam, Japan, Indonesia,
Thailand, South Korea, Bangladesh, the Philippines, Afghanistan and from various
NGOs such as Amnesty International and Forum Asia attended the same. On behalf
of the Bar’s Human Rights Committee, I attended as Malaysia’s representative.
The regional strategy meetings were initiated to further the International Criminal Court (ICC) cause in the Asian countries. Signs are encouraging. Already in 2004, Indonesia signaled their commitment to ratify the Rome Statute (which established the ICC) by 2008.
The House of Councillors (Upper House) in Japan had on 27 April 2007 unanimously approved the ratification and implementation bills for the ICC. It is expected that Japan will become the 105th state party to the Rome Statute on 1 October 2007.
To date, 12 countries in Asia have ratified the Rome Statute out of which only 2 are from South–East Asia – Cambodia and Timor–Leste. Unfortunately, South–East Asia does not have co–ordinated efforts of lobbying the various Governments, and this is something which needs development perhaps once the Malaysian Coalition of the CICC (MyCICC) takes off [see: http://www.iccnow.org/?mod=country&iduct=106].
MyCICC due to be formed
The MyCICC is an initiative led by the Bar under the auspices of the Human Rights Committee (Advocacy and Public Relations Working Group). There have been 2 meetings [see: http://www.malaysianbar.org.my/content/view/7669/2/], the latest one on 3 May 2007 where the plan was to formalize membership of the MyCICC by confirming the names of organizations and individuals interested in joining the same. A formal request has also been sent to SUHAKAM to assist by organizing a roundtable on the issue with key policy–makers, Government, NGOs, researchers, academicians and the Attorney–General Chambers. A simple pamphlet on the ICC and the work of the MyCICC will also be published for dissemination.
At the Regional Strategy meeting, and as we presented our country reports, several common themes emerged:
• The ICC campaign must complement efforts for ratification of the other international treaties.
• Most states were concerned with the United States (US) objection to the ICC and the possible withdrawal of financial aid.
• Concerns were also expressed on its impact on a nation’s sovereignty and to some extent, on immunities granted to royalty.
• Concerns were also voiced that the Rome Statute may come in conflict with states that practiced capital punishment.
The much–forgotten Agreement on Privileges and Immunities of the Court (APIC) and the Bilateral Immunity Agreements (BIA) were also discussed. APIC is an agreement that is necessary to allow the Court to function. It generally provides immunities for prosecutors or investigators on a matter referred to the ICC or initiated by the prosecutor. In the implementation process (after ratification), the APIC is usually overlooked and a recommendation is to incorporate the APIC into the bills being considered by states when seeking ratification.
The BIA is an agreement that the US has in the past vehemently sought to impose on as many countries as possible as they were strongly opposed to the setting up of the ICC and wanted widespread protection for US citizens and/or parties dealing with the US from being subject to the Rome Statute. By entering into the BIA, countries that have signed agree not to surrender custody or subject US citizens and/or parties dealing with the US to be tried by the ICC.
Malaysia has not entered into a BIA with the U.S. Nevertheless, US opposition to the ICC has waned as seen from their abstention on the Darfur referral to the ICC by the United Nations Security Council.
The Malaysian Bar’s help was sought to recommend suitable candidates for recruitment into the ICC. Save and except for the position of a judge which must come from a member state, it is open to persons from any state to apply. Preference however will be given to persons from member states. In the Asian scenario however and as there are a low number of member states, persons from non–member states have a ‘fair’ chance.
Evelyn Serrano (CICC Asia Regional Coordinator, the Philippines) briefed us on gender issues and how the role of the ICC may be enlarged to cover such crimes. The review of the ICC and its legislation is set to be conducted in 2009.
Jonathan O’ Donohue (Amnesty International) briefed us on the current cases handled by the ICC. Currently there are 3 full investigations being carried out in Uganda, Congo and Darfur, Sudan. In Uganda, investigations have led to the issue of a warrant of arrest for Joseph Kone. However, he has not been arrested. The issue of the warrant has accelerated peace talks. In Congo, after a large scale investigation, a warrant of arrest was issued against Michael Thomas. He has been arrested and this case will commence soon. Darfur poses a difficulty as Sudan has not ratified the Rome Statute. There has been no cooperation with the ICC. Investigations in the circumstances have had to be conducted outside Sudan at the refugee camps. Warrants of arrest have been issued for 2 individuals including a member of the Sudanese government.
Based on the evaluation of the possible obstacles on the Malaysian front, Malaysia was listed as one of the countries where efforts to ratify the Rome Statute will be prioritized.
Strategies and priorities for Malaysia
In respect of Malaysia’s position, the following points are culled from the meeting:
• On the possible problem of reconciling the Rome Statute and Malaysia’s stand on the death penalty, it was stated that the Rome Statute does not demand that capital punishment be abolished within the legislation of a member state. In fact, Korea has incorporated capital punishment into its ICC legislation that it is hoping to pass through Parliament. It will be interesting to see how the ICC will view this.
• On the possible cut of US financial aid, Francesca Varda (CICC Asia Regional Coordinator, New York) pointed out that in reality, the US can only deny aid under two categories – military training and financing, and economic support funds. Both do not apply to Malaysia.
• On US policy on the ICC, there appears to be a softening of its opposition as seen in Darfur.
We would also have to follow–up with the CICC on literature and research regarding ICC’s impact on royal immunities, financial impact of ratification and education.
As the ICC is implementing international humanitarian law in several cases, it is high–time for Malaysia to seriously consider its position with regard to the ICC, and the Bar will through the MyCICC commence lobbying of the Government on this issue.