Malaysia backtracks on accession to the Rome Statute

Malaysia’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC) has been a disappointing move, after only a month of signing the accession instrument. The Coalition for the International Criminal Court – a global network of more than 2,500 civil society organizations in 150 – countries strongly urges the state to reconsider its withdrawal.

On 5 April 2019, Prime Minister, Tun Dr Mahathir Mohamad, announced Malaysia’s withdrawal from the Rome Statute after the government fell prey to political confusion and criticism from the opposition parties, Umno and Parti Islam SeMalaysia, and the crown prince of Johor, for its decision to accede the Rome Statute in March.  

"We are withdrawing not because we think that the Rome Statute is bad for us, but because of the political confusion that has been created," announced Prime Minister, Tun Dr Mahathir Mohamad.

ICC is the world’s only permanent institution to investigate and prosecute genocide, war crimes, crimes against humanity, and the crime of aggression. The decision not to join the ICC is a step back for Malaysia in its fight for global justice. According to Article 126 (2) of the Rome Statute, Malaysia's accession is yet to enter into force on 1 June 2019.

Bill Pace, Convenor for the Coalition for the ICC, called on the government of Malaysia to continue its way forward: “We call on Malaysia to reconsider this position, and we remain at the disposition of the country’s authorities to assist in addressing misconceptions around the mandate of the ICC. The principle of complementarity, the Rome Statute’s guiding pillar, ensures that national judicial systems retain primary jurisdiction in investigating and prosecuting alleged perpetrators of crimes under international law, a clear sign of respect for state sovereignty”, stated Pace during a week-long mission to Kuala Lumpur. In addition, Mr. Pace called on Malaysia to lead the rest of the region by example, signaling that, in these current times, “No region will have a greater impact on the fate of major challenges confronting the international legal order than the Asia-Pacific region.”

The Malaysian Bar also expressed deep concerns at the government’s decision, affecting Malaysia’s international credibility, and it continues to support Malaysia’s ratification to the Rome Statute. “The Malaysian Bar will persist with our longstanding advocacy for Malaysia’s accession to the Rome Statute, as well as to the remaining six core international human rights instruments and their optional protocols,” noted President, Abdul Fareed Abdul Gafoor.

Malaysia’s accession

The Malaysian government’s U-turn on its ratification, backtracks the years of work that civil society and activists have worked, pushing towards human rights accountability in the Asian region. Local and international organizations have been actively campaigning for South-Asia including Malaysia, to accede to the Rome Statute including the Coalition’s Campaign for Global Justice (CGJ). In 2011, the hard work paid off when the Malaysian government announced its decision to accede, following support from both the Executive and the Parliament. However, due to technical issues, the process was delayed for several years.

On March 4, Foreign Minister, Datuk Saifuddin Abdullah deposited the instrument of accession to the Rome Statute of the ICC, and stated that Malaysia wanted to join the ICC to “combat international crimes”, but that accession will be "subjected to Malaysia’s conditions." The signed document was deposited to the United Nations Secretary-General on the same day.

Malaysia’s accession was welcomed by the civil society which set an example to encourage other Asia-Pacific government to commit to ending impunity for the worst crimes in international law. This announcement came before the Philippines’ withdrawal from the Rome Statute which came into effect following President Duterte’s decision of last year to leave the Court in the face of an ongoing preliminary examination

One of the objectives towards Malaysia's accession to the Rome Statute was to bring justice to the Rohingya refugees at the ICC. In February 2019, the Malaysian Foreign Minister, Saifuddin Abdullah stated the importance to "punish the criminals of atrocities against the Rohingyas in the court." He further added that they will not refuse the Rohingya to seek refuge in their country. Over 88,880 Rohingyas are now living in Malaysia, according to the United Nations.

Reason for withdrawal

After the announcement of Malaysia’s accession to the Rome Statute, the opposition leader, Ismail Sabri Yaakob, called for a withdrawal from the Rome Statute, stating that, “any laws that touch on the interests of the Malay Rulers cannot be done without the permission of the Conference of Rulers,” an issue that has been contested by human rights and constitutional lawyers, as well as government officials in Kuala Lumpur.

The Crown Prince of Johar also stood against Malaysia’s ratification as he believed that it could “threaten the nation’s sovereignty and thus, the status of Malays and Islam.” He continued to call the ratification as “unconstitutional.”

Misconceptions surrounding the issue of sovereignty played a major role in this decision, which led to government officials and supporters of the ICC in Malaysia to reflect on the lack of education and understanding, at all levels, of the Rome Statute of the ICC. In addition, there is a need to clarify that immunities for Rome Statute crimes, for high-level officials, including the Conference of Rulers, are circumscribed under domestic legislation and to state that the ICC is a court of last resort and can only intervene if the signed national authority is unable or unwilling to deliver justice for the grave international crimes.

The decision not to accede also resulted into a demonstration outside the Parliament on 8th April, demanding the resignation of the Foreign Minister Saifuddin Abdullah and Attorney-General Tommy Thomas.

Conclusion

Malaysia’s withdrawal comes five months after they decided not to sign a UN treaty against racial discrimination. Coalition for the ICC urges the Malaysian government to ratify the Rome Statute and continue to work together towards global justice against war crimes, crimes against humanity and genocide.

Read Coalition for the International Criminal Court's Press Release