Rome Statute: What is it? Will Agong’s immunity be at risk?

Ida Lim
A view of the International Criminal Court’s (ICC) headquarters at The Hague, the Netherlands. — Picture courtesy of International Criminal Court/Aleksandra Milic

KUALA LUMPUR, March 25 — The Rome Statute is the latest catchphrase in Malaysian politics — a phrase that gets bandied about much like the previous hottest five-letter word ICERD.

But how many of us honestly know what it is? And what’s all this talk about the Yang di-Pertuan Agong’s immunity potentially being put at risk because of the Rome Statute and how valid are such concerns?

Malay Mail has a guide here to get you up to speed on the Rome Statute that has even caught the attention of the Johor royalty, based on resources such as the International Criminal Court’s website and press statements:

1. What is it?

The Rome Statute of the International Criminal Court (or just Rome Statute) is an international treaty adopted by 120 countries on July 17, 1998 during a conference in Rome attended by 160 nations.

The Rome Statute is important as it established the International Criminal Court (ICC), the first permanent independent international court in the world that aims to end impunity for individuals that commit the most serious crimes known internationally. (This is in contrast to ad-hoc tribunals set up to put those accused of specific crimes on trial).

The ICC started operating on July 1, 2002, which is also when the Rome Statute came into effect. The ICC also looks only into crimes committed after this 2002 date onwards, unless countries who sign on say otherwise.

The Appeals Chamber of the International Criminal Court in a case. — Picture courtesy of International Criminal Court

2. What does the ICC do?

The ICC only prosecutes individuals, not groups or countries. The ICC’s powers are limited to just these four crimes (under Article 5 of the Rome Statute): Genocide, crimes against humanity, war crimes and the crime of aggression.

The Rome Statute’s Article 6 defines “genocide” as including actions done with the intention to destroy a national, racial or religious group, such as by killing, seriously injuring them, imposing conditions of life calculated to bring about the group’s physical destruction, or imposing birth prevention measures within the group.

Under Article 7, “crime against humanity” includes actions committed as part of a widespread or systematic attack against any civilian population, ranging from imprisonment, enslavement, torture, rape and other sexual violence, apartheid, enforced disappearance of persons and murder.

Under Article 8, “war crimes” comes with a long list of examples such as wilful killing, torture, intentionally directing attacks against civilians or those involved in providing humanitarian aid or in peacekeeping missions, or intentionally directing attacks against buildings such as hospitals, enlisting or conscripting child soldiers.

The final crime of “crime of aggression” revolves around the planning and initiation by a person with effective control over a country’s political or military action to use armed force against another country, including via invasion or military occupation, bombardment, use of weapons, blockade of the other country’s ports or coasts.

The ICC usually exercises jurisdiction over these crimes if committed by citizens of a country that signed on or within that country, unless when the United Nations Security Council refers a situation to the ICC or when a country declares that it accepts the ICC’s jurisdiction.

3. What did Malaysia do?

What Malaysia did was that it became a party to the Rome Statute, via the Foreign Minister Datuk Saifuddin Abdullah’s signing on March 4 of a document to accede to the international treaty.

As of March 18, there are 122 countries (including Malaysia) that are party to the Rome Statute. Using the 193 countries that are United Nations members as a base, that would mean about two-thirds of the world has signed on to the treaty.

A total of 27 cases have been brought before the ICC with four resulting in convictions. The ICC’s Office of the Prosecutor is currently conducting 11 investigations in 11 places and 10 preliminary investigations where it monitors the situations in locations such as Bangladesh, Myanmar, Palestine and the Philippines.

In the case of the government of Palestine for example, it has referred the issue of alleged crimes in “in the occupied Palestinian territory, including East Jerusalem” to the ICC, with the latter’s prosecutor to determine if it meets the legal criteria for an investigation.

The Foreign Ministry said that the current Yang di-Pertuan Agong Sultan Abdullah Ahmad Shah was informed before Malaysia ratified the Rome Statute. — Picture by Firdaus Latif

4. Is this a Pakatan Harapan (PH) thing?

Well, yes and no. Even when the Malaysian government was under the Barisan Nasional (BN), the previous long-ruling coalition’s administration under then prime minister Datuk Seri Najib Razak had repeatedly said it would ratify the Rome Statute but failed to actually do so.

The then law minister had on May 27, 2010 expressed Malaysia’s readiness to adopt the treaty, and the then prime minister on June 11, 2010 had given a policy direction for Malaysia to do so following Israel’s May 31, 2010 attack on the Gaza Freedom Flotilla humanitarian fleet.

Twice during the BN era, the Cabinet’s intention to pursue the joining the Rome Statute did not materialise.

The attorney general’s reservations resulted in the Cabinet not acting on its decision to join on the first occasion after an 2011 presentation, while no action was taken despite the Cabinet’s intentions in 2015 to consider the matter to enable Malaysia to bring those responsible for shooting down Malaysia Airlines flight MH17 to the ICC.

Less than a year after coming into power via the May 2018 elections, PH has succeeded in finally joining the countries who acceded to the Rome Statute, starting with the Cabinet’s decision on December 12, 2018 to join the Rome Statute in line with the attorney general’s advice.

Despite not obliged to seek consent from the Conference of Rulers as there would be no constitutional amendments — including any affecting the Malay rulers, the PH government said on March 13 that it had still informed the acting Yang di-Pertuan Agong (December 26, 2018) and the current Yang di-Pertuan Agong (February 15, 2019) of the Cabinet’s decision out of respect for the country’s constitutional monarchy system.

5. What about Malaysia’s sovereignty?

The important thing about the ICC is that it is not intended to replace the role of the courts in countries that signed on to the Rome Statute. The ICC is meant to complement the courts in Malaysia, and function as a “court of last resort” if Malaysia is unwilling or unable to genuinely take action.

From the onset, the Rome Statute specifically states that the treaty is not to be interpreted as authorising any of its signatory countries to intervene in an armed conflict or internal affairs of any country.

When explaining the offence of war crimes in relation to non-international armed conflicts, Article 8(3) of the Rome Statute also says the related provisions do not affect a government’s responsibility to maintain or establish law and order in the country, or to defend the unity and territorial integrity of the country by all legitimate means.

Johor ruler Sultan Ibrahim Iskandar claimed on Friday that Malaysia’s ratification of the Rome Statute is against the Federal Constitution. — Picture via Facebook/HRH Crown Prince of Johor

6. What about the Agong?

The Johor Sultan — who is next in line as the Yang di-Pertuan Agong according to seniority ranking in a rotation-and-election system — has voiced his strong concerns of the risk to the rules’ powers.

“The actions of the federal government which wishes to ratify ICERD and which signed the Rome statute, is an action that is contrary to the Federal Constitution, because it touches on the rulers’ powers and the Malays’ special status and the sanctity of the religion of Islam in this country,” he had said in a speech shared on the Johor crown prince’s Facebook page.

Part of the remark might sound puzzling, as the Rome Statute is really focused on just crimes against humanity and not issues such as race and religion.

But perhaps the comment about Malays and Islam’s position was in relation to United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which envisions the right to freedom of “thought, conscience and religion” and aims to end racial discrimination while still allowing affirmative action policies — such as those enjoyed by the Malay community — if necessary.

(Countries are also allowed to have reservations or ask to be exempted from following the ICERD completely after ratifying it. The PH government has already decided to not adopt the ICERD.)

But back to the issue regarding the Agong’s immunity, the Johor crown prince Tunku Ismail Ibrahim had on March 10 claimed that signing the Rome Statute would risk putting the Agong as the “Commander in Chief” in a precarious position of being liable and being dragged to the ICC.

He also highlighted Article 27 of the Rome Statute, which states that no one is exempt from criminal responsibility, and that immunity or special procedural rules attached to anyone in their official capacity will not stop the ICC from exercising its jurisdiction over the person.

In responding to questions regarding the legal effect of signing the Rome Statute, the Foreign Ministry had on March 13 explained that the Cabinet had decided to sign the Rome Statute after being satisfied that the Yang di-Pertuan Agong’s position and immunity is retained.

While noting that the Federal Constitution’s Article 41 declares the Yang di-Pertuan Agong to be Malaysia’s armed forces’ Supreme Commander, the ministry said that the King is not granted absolute power to declare war, as he carries out his duties as advised by the prime minister or Cabinet ministers.

“Therefore, the Yang di-Pertuan Agong is not responsible for the four condemned crimes identified in the Rome Statute’s Article 5. The legal responsibility for any declaration of war and its conduct lies with the Prime Minister and Cabinet members,” the ministry said.

Johor Crown Prince Tunku Ismail Ibrahim had raised the concern that the immunity of the Yang di-Pertuan Agong could be affected, but the Foreign Ministry has said that the ruler’s immunity remains. — Picture by Choo Choy May

7. An unlikely risk

Perhaps the actual starting point when Malaysians consider the adoption of the Rome Statute’s effect is this: that the royalty do not have complete legal immunity in the first place.

Constitutional lawyer Lim Wei Jiet told Malay Mail that he disagreed that Malaysia’s ratifying of the Rome Statute would violate the Federal Constitution.

“First, the Federal Constitution does not touch on the immunity of persons under international law or international treaties. The Federal Constitution was merely meant to govern the immunity, if any, of persons under domestic courts. Malaysia’s obligation to the international community — including accountability towards war crimes — is solely within the prerogative of the Executive,” he said when contacted.

He also argued that it would not be accurate to say that the Yang di-Pertuan Agong’s immunity “can be affected” by the Rome Statute, as the King has no immunity under international law and treaties in the first place.

“Second, the concept that royalty can ‘do no wrong’ or have complete immunity has long been a thing in the past. In 1993, amendments were made to the Federal Constitution to allow criminal proceedings to be instituted against the YDPA and the Rulers via special courts, provided that there is consent from the Public Prosecutor personally,” he said, referring to the Constitution’s Articles 32, 181, 182 and 183.

“Third, the ICC can only assume jurisdiction when a state is ‘unwilling’ or ‘unable’ to carry out investigations and prosecutions (see Article 17 of the Rome Statute). Hence, if there is an accusation against a Ruler and there are no charges brought forth, as long as Malaysia can prove that its investigations or prosecutions have been done impartially, then the ICC has no jurisdiction.

“Fourth, the YDPA is unlikely to be individually responsible for war crimes and hence unlikely to be prosecuted. Although the YDPA is in name the Supreme Commander of the armed forces, he must always act in accordance to the advice of the prime minister,” he added.

He argued that the Agong’s ceremonial title of being the supreme commander meant that those who would be prosecuted by the ICC for war crimes would instead by those such as the prime minister or Cabinet members or generals.

Malaysia is not alone in signing on to the Rome Statute, with the Foreign Ministry pointing out a long list of countries with a constitutional monarchy system that have had no qualms signing on, including Belgium, Cambodia, Denmark, Japan, Jordan, Luxembourg, the Netherlands, Norway, Spain, Sweden and the UK.

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