NO constitutional monarch has ever been prosecuted by the International Criminal Court, even for atrocities committed by their troops, said constitutional law expert Dr Shad Saleem Faruqi.

The law professor said when Cambodian dictator Pol Polt was prosecuted for genocide by the ICC, the country’s constitutional monarch, Prince Sihanok was not.

This, he said, was because constitutional monarchs are not liable for war crimes committed by their rogue soldiers and officers, as these rulers have no operational control of the army despite being their “supreme commanders”.

Shad Saleem was responding to one of the main points that was used by detractors of the Rome Statute to convince the Conference of Rulers to reject the international convention.

The conference had been persuaded to reject the Rome Statute by a group of four academics who had argued that ratifying the international convention would affect the special position of the Malay rulers.

“A constitutional monarch is only a formal, not functional, position. He reigns but does not rule. He is not operationally responsible for the conduct of the armed forces,” Shad Saleem told a forum on the Rome Statute in Kuala Lumpur today.

Shad Saleem said to date, there have been 44 indictments against heads of states under the ICC, but not one was a constitutional monarch as they were not liable under the treaty.

Another recent example is ex-United Kingdom prime minister Tony Blair and the British ruler Queen Elizabeth.

“There was a campaign to take England to the ICC over its illegal invasion of Iraq (in 2003) and the person they wanted to indict was Blair.

“There was no mention on of prosecuting Queen Elizabeth even though she was the supreme commander of the British forces.”

During the forum, Shad Saleem also addressed the argument that the Malay rulers can be brought to the ICC because the government criminalises homosexuality and prosecutes sexual minorities.

This is since the ICC only covers specific genocide, war crimes, crimes against humanity and crimes of aggression.

“There is nothing in the Rome statute about LGBT or sexual minorities. So there is no possibility of prosecuting the Agong because Malaysian law criminalises homosexuality.”

Shad Saleem said Malaysia should ratify the treaty so that it can push for the prosecution of those who shot down Malaysia Airlines flight MH17 in 2014.

Membership to the ICC would also help prosecute those behind the genocide in neighbouring Myanmar, which triggered a refugee crisis that has spilled over to Malaysia. – April 25, 2019.