(Used by permission)
by K. Shanmuga
“The ICC is a done deal. The longer Malaysia delays joining, more and more of the court’s procedures, mechanisms and personnel will be formulated and appointed without our involvement.”
TODAY is the World Day for International Justice. Nine years ago today, in Rome, the Statute for the International Criminal Court was adopted by delegates at an international conference. To date, 104 countries (more than half the world) have formally joined the court. Malaysia is not one of them, but this month sees the Coalition for the International Criminal Court (an international network of more than 2,000 NGOs) targeting Malaysia for its universal ratification campaign, through which they hope to see all countries of the world joining the ICC.
In a press release, CICC Convenor William Pace said: “We are hopeful that support for international justice in Asia is building. Malaysia’s accession to the ICC treaty would help galvanise this support and ensure greater regional participation in the global struggle to end impunity for the gravest of crimes.”
Currently, the Asian countries that have joined the court are Cambodia, Timor Leste, South Korea, Mongolia, Afghanistan and Tajikistan (It is interesting that in most countries that have experienced the terror of war, there is keen interest in joining the ICC). Thailand, the Philippines and Bangladesh have also signed the statute (but have not yet ratified it). Japan is expected to formally join the court today. Indonesia, Nepal and Laos have all indicated an intention to ratify the statute by 2008.
The ICC: What is it?
War crimes are frequently addressed through ad hoc tribunals set up after the event. For example, the trial and subsequent execution of Saddam Hussein was widely condemned as “victor’s justice” – the conquerors bringing the defeated before mock trials. Currently located at the Hague in the Netherlands, the ICC hopes to avoid these accusations of partisanship.
The court is the first permanent and independent international court which has powers to bring to justice those accused of humanity’s most grievous crimes – genocide, crimes against humanity and war crimes committed by nationals of member nations or in the territory of member nations. The Hitlers, Pol Pots, Saddam Husseins and Milosevics of the future are the ones being targeted. For the first time, gender specific crimes such as mass rapes, forced pregnancies and forced sterilisations committed as part of a widespread and systematic attack against a community are addressed.
The judges of the court are elected from candidates proposed by member nations through a highly complex procedure designed to ensure a diverse representation – at the moment, of the 18 judges, eight are women. By nationality, there are nine judges from Europe, three from Africa, one from Asia and five from the Americas. (The high representation of Europeans is because Europe has the most number of countries which have ratified the Rome Statute.)
An intricate series of checks and balances ensure that the independent office of the Prosecutor remains supervised by the court. Members of the court separate themselves into three chambers (pre–trial, trial and appeal) to ensure that there is an appeals process and that decisions are independently made during the trial by judges who have not looked into pre–trial matters.
The practice and procedure of the court is a mix of the inquisitorial and adversarial modes of criminal justice. There is a significant degree of flexibility (for instance, the court or the prosecutor can defer instituting proceedings or can begin preliminary work under seal) which allows the court to complement peacekeeping processes.
There is an unprecedented amount of rights to victims of the crimes to participate in the judicial process, by giving them the right to be represented throughout the proceedings, to make submissions to the court, to question witnesses (with leave and under the supervision of the court) and to receive reparations from a victim’s trust fund which is independently managed. The court cannot impose the death penalty, no doubt because it is considered a cruel and inhumane punishment.
Many fear that the court will interfere in their sovereignty
and that our men and women in the military will be subjected to frivolous
prosecutions. But the ICC is intended to be a court of last resort and one of
its core principles is that of “complementarity”: the ICC will not intervene
unless the member country concerned is “unable or unwilling” to prosecute the
alleged war criminal. The prosecutor has given an indication that the assessment
of this will be on a case by case basis, i.e. an
assessment will be made as to whether the national legal system has properly pursued the individual for the particular crime being investigated by the ICC. This principle ensures that national sovereignty is not jeopardised.
ICC Prosecutor Luis Moreno–Ocampo says in an opinion piece penned by him (International Herald Tribune, June 12, 2006): “The global impact of the Rome Statute is becoming apparent. Already national armies are adjusting their procedures. Colombian paramilitaries have referred to the ICC as one reason to demobilise. Prosecutors in the Netherlands have indicted a Dutch businessman for fuelling the conflict in Liberia, citing the ICC as the impetus. Lubanga’s counterparts fear a fate similar to his.”
Ratification in Malaysia
Though we still resort to war to solve some of our problems, we have evolved to a point where we are, rather oddly, able to “regulate” warfare through a body of law. This body of laws governing how we wage war is called humanitarian law, and is well established in Malaysia.
Andrew Khoo, deputy chairperson of the Bar’s Human Rights Committee, notes that we first contributed peace–keepers to the Congo in 1960 and our “commitment to humanitarian efforts and international humanitarian law has been shown by our ratification of the Geneva Conventions and the Chemical Weapons Convention, and more recently in our assistance to Indonesia during the Asian Tsunami and to Timor Leste in her progress towards independence and nationbuilding.”
He adds: “It is a small yet highly significant step for Malaysia, which now sits on the United Nations Human Rights Committee, to reaffirm her commitment to the rule of law in the international arena by ratifying the Rome Statute. It is in Malaysia’s continuing interest as a responsible member of the international community to be a part of this worldwide initiative towards ending impunity for aggressors in conflict–ridden areas of our global village and obtaining justice for victims of some of the gravest crimes against humanity.”
The ICC is a done deal. The longer Malaysia delays joining, more and more of the court’s procedures, mechanisms and personnel will be formulated and appointed without our involvement. It is better to have a say now since we will inevitably have to join sooner or later.
By joining earlier, we may even be able to have a Malaysian judge in the court (bearing in mind our Justice L.C. Vohrah was a member of the Yugoslavia War Crimes Tribunal).
Unlike most other international treaties, the Rome Statute has no reporting requirements and so on. Our domestic criminal law and procedures will also to be brought in line with the high standards of the Rome Statute, but this will in the long run benefit our criminal justice system. Our leaders need have no fear that they will be brought to book by the ICC for alleged violations of human rights.
The ICC is not interested in violations of human rights per se but only when connected to war crimes, crimes against humanity and genocide.
There seems absolutely nothing happening in our peaceful country at the moment which even remotely resembles the crimes the ICC is concerned about. Furthermore, the ICC cannot act retrospectively – that is to say, it can only act on crimes committed after the Rome Statute entered into force on July 1, 2002.
And finally, given the propensity nowadays for the superpowers to use the convenient excuse of “self defence” to justify invasions into other countries, it might very well be in Malaysia’s best interests to immediately ratify the Rome Statute. This may cause any foreign power to think twice before attacking us!
K. Shanmuga is a member of the Human Rights Committee (HRC), Bar Council Malaysia. The Bar Council recently joined the international coalition and is seeking to establish a Malaysian coalition for the ICC. For details, contact the Bar’s Human Rights Research Officer, Rajen Devaraj at firstname.lastname@example.org. For information on the HRC, see www.malaysianbar.org.my/hrc. Send complaints of rights violations to email@example.com. The Committee makes no assurance that all cases will adopted for action.