Malaysia’s original decision to join the International Criminal Court (ICC) in March was welcomed with a blizzard of celebratory analysis. But the celebrations were premature. On April 5 2019, Malaysia’s Prime Minister Mahathir bin Mohamad announced a stunning reversal. In a matter-of-fact press briefing, the PM said Malaysia would be withdrawing from the ICC due to “certain quarters who have politicised the issue.”
“We have ratified the Rome Statute (on March 4) and have until June for us to withdraw. We will act before June,” Prime Minister Mahathir told reporters.
Andrew Khoo, a former Co-Chair of the Malaysian Bar Council’s Human Rights Committee, and Debbie Stothard, the Secretary-General of the International Federation for Human Rights (FIDH), explain the factors pulling Malaysia out of the ICC and their hope to “reverse the reversal.”
Justice Hub: Why do you think it is that the government decided to change its mind about accession to the Rome Statute, the founding document of the ICC? From the Malaysian point of view, what was the reason behind this change of mind?
Andrew Khoo: The issue was loss of immunity by the Malay rulers or traditional sultans of the nine royal households. One royal in particular, Sultan Ibrahim Ibni Almarhum Sultan Iskandar, the wealthy ruler of southern Johor state, took it upon himself to argue that his privileges as the head of a royal household were affected by the decision to accede to the Rome Statute. Under the Constitution of Malaysia, any matter that affects the privileges of the traditional rulers must first go to the traditional rulers for their consent before anything can be done. He argued that since this had not been done therefore there was a breach of the constitution.
Justice Hub: Do you think then this is a delay rather than a complete stop?
Andrew Khoo: Well, if you read the statement of the government, it says that it supports and believes in the purpose and role of the Rome Statute of the International Criminal Court (ICC). So this is not a repudiation of the International Criminal Court. It is perhaps, for want of a better word, a domestic political issue that needs to be sorted out first. Then there is some hope that in time to come we will be back on track for accession.
Justice Hub: How excited or happy was everybody who had been campaigning around this was when the first decision was made? It has been a long struggle, hasn’t it?
Andrew Khoo: It has been a long journey. Certainly, it has been a journey that has been marked with a near accession back in April 2011. It some ways, we have been here before. We had the Cabinet decision in I think March or April 2011 which basically said that we were going to accede and then that didn’t go through. This time now it went through and now it has been pulled back. Hopefully the next time we will be third time lucky and it will go through all the way. We can certainly hope and pray for that.
In the meantime, it just means that in some ways it’s back to the drawing board to campaign and advocate with the right people about removing misconceptions misunderstandings and a lot of misinformation that’s been spread by those who would oppose the accession.
Justice Hub: Are you also basically optimistic Debbie?
Debbie Stothard: Malaysia is a State Party to at least three international human rights treaties like the CRC (The United Nations Convention on the Rights of the Child) the CRPD (Convention on the Rights of Persons with Disabilities) and, of course, the Genocide Convention. On all these occasions, there was no indication that permission by the Council of Rulers was required.
In Southeast Asia, we talk about “shadow play”. In Indonesia, Thailand and Malaysia, there is actually a cultural art form where you actually use two-dimensional carvings of leather and you play out the shadows out against the light on a screen to play out the drama. Sometimes so we also use this Malaysian term “Wayang Kulit”, or “shadow play” in English, as a political euphemism for things playing out beyond our eyes. Often there are some other power struggles or dynamics below the surface that we also need to acknowledge and understand.
Justice Hub: What’s your suspicion here in terms of ‘shadow play’ or what is really going on?
Debbie Stothard: I think when the current government won the election nearly a year ago in May 2018 it came as a shock to many stakeholders who benefited from the status quo that they assumed was going to continue regardless. What we are seeing playing out are constant attempts by the Empire to strike back. Basically, there are different groups trying to regain power or trying to consolidate themselves in a situation of change.
Justice Hub: What difference do you think it will make across Asia if Malaysia joining the ICC does go ahead in the future? What effect does it have on the region as a whole?
Andrew Khoo: If we were to go ahead and join the ICC, I think it would be a point of encouragement to other countries in the region to say that “if Malaysia is prepared to go ahead then maybe it’s something that we should seriously relook.”
At the moment, you look at Southeast Asia and now the only two countries that are States Parties to the International Criminal Court are Cambodia and East Timor, the Philippines having pulled out. But everybody can explain the Philippines pulling out in terms of President Rodrigo Duterte so nobody’s in a sense taking that seriously because that action is limited to its own facts and circumstances.
More broadly speaking – the idea of contributing to the architecture of an international system which is upholding the international rule of law, the end of impunity for grievous war crimes – if Malaysia sees the benefit of doing that, then I think it will have an impact on Southeast Asia, especially at this point of time.
Malaysia’s accession is actually driven by or connected with the issue of the Rohingya people. I think that is a powerful factor that needs to be taken into account. It is in the name of seeking justice for the Rohingya people Myanmar and the Palestinians in Gaza that the Malaysian government approached this issue and said “we’ve got to put our money where our mouth it, as it were, and not just talk about international justice but to actually be part of that system.”
Justice Hub: Same question to you Debbie.
Debbie Stothard: I think when this happened the regional human rights community was quite shocked. In Southeast Asia, we’re constantly looking at which states could be a champion for human rights and democracy. It looks like Malaysia this time was the prime candidate in a region that was quite gloomy, to be frank.
People were quite shocked that so quickly there was such a U-turn and I think it’s unprecedented in the history of the ICC. I think probably unprecedented in the history of treaty accession process that this has happened. We were joking that Southeast Asian countries are constantly competing to make records and to break records. I think this is an unwelcome record that’s been broken.
Having said that, Malaysia strongly advocated for the issue of Malaysia Airlines Flight MH17. The flight was shot down a couple of years ago as it was flying from Amsterdam to Kuala Lumpur and it was shot down as it flying over Eastern Ukraine. The highest number of people who died on that flight were Dutch. Malaysia, of course, felt significant pain because it also suffered many fatalities.
Ukraine has accepted the jurisdiction of the ICC. It would be embarrassing and disappointing if this case was ever investigated if Malaysia won’t have standing because it withdrew from the Rome Statute. This was something that actually motivated a group of Malaysian students to put up a public petition on this issue. They actually call for what we call the reversal of the reversal of the aborted accession. Even when we look at the question of the Rohingya people, their plight is particularly important because the Malaysian Foreign Minister made an unprecedented public statement calling for accountability over crimes against the Rohingya.
In Southeast Asia, there has been quite a notorious allergy to accountability for crimes. So for the Malaysian Prime Minister to take such a courageous step it seems only appropriate that there is follow through in terms of ratification of the Rome Statute. If we also look at Southeast Asia’s preoccupation with human security, we cannot deny that if we’re serious about regional security, we do need to try and expand the means to support an international justice mechanism that could prevent a recurrence. This is quite critical.
For such a small grouping of countries, we have had more than our fair share of serious atrocity crimes committed and we definitely do need to have higher ratification rates and full implementation of such commitments.
Justice Hub: Is there more context to be understood?
Debbie Stothard: I think a lot of people understand that the situation in Malaysia is complicated. Everyone is quite committed to making sure that we reverse the reversal. This whole episode has been another wakeup call on how fake news and fake facts have really thrown a spanner in the works in far as the general commitment to international justice is concerned amongst Malaysians.