THE concerns raised by several quarters that caused Malaysia to backtrack from ratifying the International Criminal Court’s (ICC) Rome Statute holds no water, said experts.

Counsel of ICC and member of the Malaysian Bar N. Sivananthan said the purported concerns linking the international treaty to religion, the monarchy and laws against the non-heterosexual community, were not valid.

The notion that being a state party to the treaty will put the monarchy at risk of persecution is unfounded, as Malaysia has long lost its absolute royal immunity when the Federal Constitution was amended in 1993.

Additionally, he said, Malaysia is a signatory of the Genocide Convention that does not afford head of states immunity.

“Rome Statute is not at all incompatible to Islam,” he said in a forum on the ICC.

The treaty, he said, has limited jurisdiction, concentrating only on grave and the most severe crimes such as crimes against humanity, genocide, war crimes and crimes of aggression.

Malay rights are also not affected, said Sivananthan, as it does not fall under the jurisdiction of the Rome Statute.

“It is not for the Rome Statute to interfere in whatever positive policies that a country may have. Positive or negative, that is not why they were set up.”

Sivananthan said laws against non-heterosexual persons is also not a subject matter of the convention.

“I say this because again when there was this objection against the Rome Statute, there was this issue that if there were laws that discriminate against non-heterosexual people, it would somehow rather be an offence under the ICC. That is not true at all.

“Whatever laws you may have, cultural or religious based, that may outlaw certain sexual activities or sexual preference is not an offence as far as the ICC is concerned.”

He said the Rome Statute respects religious, cultural and native laws of the country. These, he said, were also not the areas that warrants the intervention of the ICC.

Sivananthan said Malaysia is not at risk because it has no history of the four serious crimes that fall under the Rome Statute.

“The probability of this happening in the future is also very slim.”

Malaysian Centre for Constitutionalism and Human Rights chief strategist Firdaus Husni said Malaysia backtracking from ratifying the treaty puts the country’s moral credibility at stake, as it has taken a public stance in the international arena over human rights issues.

“This is not a matter of behind the scenes talks… these are political, public stances that we have been taking,” she said while referring to Malaysia’s stance against the persecution of the Rohingya, the Palestinians and several other ethnic groups being oppressed.

“When I read these statements, I read with pride. (But) when I read about the U-turns we have been making… all our moral credibility and standing has crumbled just by making those statements,” she said. 

Firdaus said other countries with a constitutional monarchy have also ratified the treaty.

ICC only looks into four heinous crimes

Chung Chang-ho, judge at the ICC at The Hague, said in his public lecture in Kuala Lumpur today that the court only looks into four heinous crimes.

The ICC exercises its jurisdiction on condition that the case involves a state party and the crimes are committed within the territory of the state party.

The judicial process of the ICC, he said, is not very different from the national judicial system. It involves a pre-trial, trial and appeal process.

“In principle, we can only deal with a member state, we call them ‘state party’. We have 122 state parties,” he said. 

“Even then, it is only if state parties refer their case to us. We cannot just intervene at any time we want. We have to wait until a state party sends the case to us, then we can start an investigation or trial on behalf of the state concerned,” he said. 

Taking murder as an example, Chang said an individual crime will not be considered as crime against humanity. It will only fall under the court’s jurisdiction if it involves a “widespread and systematic commissioning.” 

He said the ICC can only deal with a non-state party if there is a referral from the UN Security Council. – August 27, 2019.