Malaysia has become the first State to become a Party to the Rome Statute of the International Criminal Court (ICC) since 2016, says David Donat Cattin, Secretary-General, Parliamentarians for Global Action (PGA), as a result of parliamentary advocacy.
The governing document of the International Criminal Court (ICC) – the Rome Statute was adopted on 17 July 1998. The next day it was opened for signatures by States in the magnificent Sala della Protomoteca at Il Campidoglio, the original Capitol of the City of Rome. But Malaysia did not sign the Rome Statute until the last possible date – 31 December 2000. And the Government of Malaysia remained mainly silent on the ICC dossier, giving no indication on whether it would actually ratify the treaty and become a member. Only when a Malaysian MP and member of Parliamentarians for Global Action (PGA) started to work on this from November 2004 did things begin to move.
Asian regional efforts
The wave of ratifications of the Rome Statute between 1999 to 2004 was significant in Latin America, Europe and Sub-Saharan Africa, but far from satisfactory in Asia and the Middle East and North Africa. Asia is the only macro-region without a regional court on human rights, so this state of affairs was not at all surprising.
In the Parliament of New Zealand in Wellington the PGA organized the III Consultative Assembly of Parliamentarians for the ICC & the Rule of Law (CAP ICC) at the end of 2004, with a view to expanding engagement on the fights against impunity and multilateralism in Asia. Many lawmakers from Asia, including MPs from The Philippines and Malaysia who would have become leading actors in the national ratification process, were invited. In particular, Hon. Kula Segaran, an MP from Malaysia, emerged as the most forceful and competent politician with legal background and strong commitment to human rights and justice.
Malaysia’s activist MP
From the benches of the opposition, Hon. Kula Segaran spared no effort to demand to the Government to take action on the ICC dossier. Inspired by the parliamentarians’ led process that led to the unexpected ratification by Japan in early 2007, which followed the IV CAP ICC held by PGA in the Diet in Tokyo at the end of 2006 that mobilized a vast bipartisan group of Japanese Lawmakers, Hon. Kula Segaran invited other members of Parliament into the PGA Malaysia National Group. His activism came to fruition in 2010, when he tabled compelling parliamentary questions (prepared by PGA) on the historic negotiations that should have taken place at the first Review Conference of the Statute in Kampala in May-June 2010, the main question being: What will the role of Malaysia be in Kampala to outlaw for good and criminalize aggressive war-making? The Minister of Law in the Prime Minister office, Hon. Mohamed Nazri, MP (a political opponent to Hon. Kula Segaran) understood the importance of the issues at stake and decided to lead the Malaysian delegation at the VI CAP ICC, organized by PGA just before the beginning of the Kampala Review Conference, and at the Review Conference itself.
In Kampala, while Kula Segaran delivered a powerful speech highlighting the reasons why the protective jurisdiction of the ICC would be beneficial for peace and justice in all States, including countries where mass-atrocity crimes continued to be committed with impunity like Sri Lanka, the Minister of Law requested the floor to make unplanned closing remarks in which he described Malaysia as strong supporter of the Rule of Law and announced that he would be activating the process towards accession.
In the following months, PGA organized a regional conference in March 2011 on ratification and implementation of the Rome Statute in the Parliament of Malaysia in Kuala Lumpur, which inspired MPs from Maldives and Vanuatu to launch decisive actions towards their countries’ ratification in 2011 and reinforced the leadership of Filipino Senators who accomplished the same result in Manila. Moreover, the Malaysian Cabinet adopted a decision on accession as early as in April 2011, but the objections of the Attorney General and the controversy that stemmed from a cancelled visit of Sudanese President Bashir to Kuala Lumpur in June 2011 led to a stalemate. No action was taken on accession for several years, even if Parliamentarians questioned repeatedly the Government on fulfilling its decision, in alliance with strong NGOs coordinated by the Malaysian Bar Association, using arguments that proved to be more and more compelling: From the widespread massacres that followed the so called “Arab Spring” to the brutal downing of Malaysia Airlines flight MH17 over the conflict-zones of Ukraine and the consequent Russian veto in the Security Council to create a jurisdictional mechanism to address the crime, to the inhumane acts and deportations of the Rohingya from neighbouring Myanmar.
From opposition to majority: decisive steps towards accession in 2018
In May 2018, after 72 years of the same majority in Government, a change marked the history of Malaysia’s democracy, with the opposition winning the legislative elections for the first time and the appointment of a new Prime Minister. Hon. Kula Segaran, in his capacity as deputy head of the Democratic Action Party, became Minister for Human Resources (Labour) in the first wave of nominations of Cabinet members.
The PGA Malaysia National Group arranged a meeting in the new Parliament in which strong arguments in support of Rome Statute ratification were presented by PGA Members from the new majority and by the opposition, in a bipartisan manner, making use of memoranda prepared by PGA on the basis of the fruitful visits to parliamentary events in Kuala Lumpur in previous years, where key-note speeches had been respectively delivered by then ICC Presidents Judge Sang-Hyun Song and Judge Silvia Fernandez de Gurmendi.
Many years of advocacy and sensitization had brought about change. The time had come for a new Cabinet decision on accession, and Hon. Kula Segaran found a strong ally in the new Attorney-General, Mr. Tommy Thomas, Esq., a respected lawyer with strong human rights credentials who forcefully defended the ICC dossier in Cabinet. With the appointment of the new Foreign Minister and the support from the Prime Minister, Cabinet met and deliberated on accession on 12 December 2018 in a unanimous manner. Foreign Minister Hon. Saifuddin Abdullah had the opportunity to brief the new King, who had sworn in on 31 January 2019, in mid-February, and the final steps towards accession culminated with its deposit at the UN on 4 March 2019.
Domesticating the Rome Statute
PGA now remains “seized with the matter” of domestic implementation of the Rome Statute, engaging with MPs from all parties to give effect to the principles of complementarity and the duty of cooperation with the ICC. The revised Commonwealth Model Law to Implement the Statute was adopted with the concurrence of the former Minister of Law of Malaysia in 2012 in Sydney, and PGA updated the very good text (already reflecting many drafting-options elaborated by PGA) and aligned it to all amendments to the Rome Statute adopted in Kampala 2010 and by the ICC’s Assembly of States Parties of 2017 and the enhanced need for cooperation agreements with the Court.
Ownership of the fight against impunity has been the crucial element that led a State that had originally followed the Non Alignment Movement (NAM) position of abstention and non-signature of the Rome Statute, to replace it with a stance of active engagement and accession, hence bringing about a policy-change that took 14 years to mature. Malaysia has joined the club of States that, at least on paper, have decided to unite their efforts to “put an end to impunity for the most serious crimes of concern to the International Community as a whole”.
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