On 4 March, Malaysia announced the excellent news that it had deposited its instrument of accession to the Rome Statute of the International Criminal Court. Widely welcomed by fellow States Parties, the accession provides some important insights in relation to efforts to promote the universality of the Rome Statute says Carrie McDougall.
David Donat Cattin, Secretary-General of Parliamentarians for Global Action, has already written an excellent piece for Justice Hub, explaining the road to Malaysia’s accession. As highlighted in David’s post, the accession was the result of extended consideration by successive governments in the context of a sustained advocacy campaign, vocally led within Parliament by the Hon. Kula Segara, supported by dedicated civil society representatives.
States are not Monoliths
In most States, a prerequisite to Rome Statute ratification is securing the support of the foreign affairs, defence and justice portfolios. In a former life I was an Australian Government legal adviser and diplomat and I had the day-to-day lead on international criminal law and accountability policy matters. In this capacity I engaged in a good deal of outreach to promote the Rome Statute. In my experience, it is typically the defence portfolio whose support for the ICC can be the hardest to secure, for somewhat self-explanatory, self-interested reasons. Somewhat unusually in Malaysia’s case, the hold out was the former Attorney-General. This neatly illustrates that States are not monoliths and that treaty membership often hinges on overcoming small pockets of resistance, in addition to decision-makers reaching the conclusion that the sovereignty concession represented by membership of an international treaty is in the national interest, that the State can meet its obligations under the treaty, and that treaty action should be prioritised among other matters in a crowded political agenda.
David writes that serious international crimes committed against Muslims in the crackdown on the ‘Arab Spring’ and against the Rohingya in Myanmar, as well as Malaysia’s experience in relation to the downing of flight MH17, generated arguments that were compelling for the Government. It was in the context of my work for the Australian Government in relation to MH17 that I had the opportunity to discuss accountability issues with Malaysian counterparts. I learnt a great deal from a group of outstanding Malaysian lawyers and diplomats about their country’s approach to a range of complex criminal law issues and about Malaysia’s commitment to ending impunity. To be clear, however, while Kula Segara has indeed referred to MH17 in the context of his ICC advocacy, it is not evident that the definition of any Rome Statute crime (as distinct from a range of other crimes under national laws) could be made out. This would in large part be contingent on evidence that those responsible for firing the BUK that downed MH17 knew the plane to be a civilian aircraft and deliberately targeted it as such. Such information has not been included in the evidence made public by the MH17 Joint Investigation Taskforce to date, although of course the investigation is ongoing. Regardless, the fact is that when a State remains to be convinced about joining a treaty, it is usually national interest, rather than good international citizenship, that gets them across the line, demonstrating the importance of tailoring advocacy arguments to one’s intended audience.
Four additional factors relevant to Malaysia’s accession are worth noting. First, like many countries with a monarchy, Malaysia was for some time concerned about the possible exposure of its King to criminal liability, a sensitive issue domestically following the 1993 amendment of the Malaysian Constitution to remove the monarchy’s personal immunity. Prime Minister Mahathir Mohamad has a less deferential relationship with the current King compared to the relations between previous Heads of Government and Heads of State, which may have been a factor. More importantly, like others before it, Malaysia presumably reached the conclusion that being the commander-in-chief of the armed forces on paper is not sufficient to establish individual criminal responsibility for any Rome Statute crime. There was a process to get to this conclusion though, which underlines how it is still critical to counter lingering misunderstandings about the Rome Statute in outreach about the Court.
Second is the role played by former ICC President, Judge Song. During his tenure, Judge Song, a Republic of Korea national, focused his universalisation outreach on the Asia-Pacific. I had the pleasure of working alongside Judge Song in some of these efforts. He was an effective advocate, not only because he spoke powerfully of his experience of the Korean War as a child and authoritatively addressed misperceptions about the Court, but also because his comments on the under-representation of Asian countries among Rome Statute members resonated more deeply coming from someone with a shared regional perspective than any of the arguments that I was able to make as an Australian. This highlights the importance of deploying a diversity of outreach interlocutors in order to make use of ‘horses for courses’ so to speak.
Third is Malaysia’s current approach to international relations. Asked at a Council of Foreign Relations event in September 2018 about his priorities, Mahathir Mohamad reflected on his country’s traditional championing of the principle of non-interference in internal affairs: ‘[i]n the ASEAN group of countries, we decided that we should not interfere in the internal affairs of member states. We would like to stick to that. But what happened was that in Cambodia, they murdered two million people and they did nothing. I think that was wrong. We had to do something. Now it is happening again with the Rohingya. And I think not just Malaysia, but the world should draw a line about not interfering in the internal affairs of other countries.’ He went on to expressly talk about the possible need on occasion for military action.
While Mahathir didn’t reference the ICC here, and I would not wish to be mistaken as suggesting that ICC action amounts to intervention in internal affairs, what I think this quote illuminates is the fact that Malaysia’s current government has a more forward leaning approach to atrocity prevention and response. Prioritising accountability is natural complement to such views. But accountability is also, dare I say it, an alternative to more proactive action that can be easier to sell. While I personally have real concerns about the ICC being used as an alternative to Security Council action, I am also of the view that it makes sense to leverage off the sentiment that the international community has to do something in response to egregious mass atrocities, and to use this sentiment to promote the universalisation of the Rome Statute on a case-by-case basis.
A related consideration is that Malaysia may have reached the conclusion that its call for the perpetrators of genocide and crimes against humanity against the Rohingya to be investigated and prosecuted by the ICC would be a great deal more credible coming from a country that was itself a member of the Rome Statute by avoiding perceived double standards.
The fourth factor relates to the current geo-political picture of the region, with China’s continuing rise, ongoing tensions in relation to the South China Sea, a growing threat of terrorism and the Philippines’ dramatic change of direction under President Duterte, combined with the more general global trend towards nationalism and the risk that rhetoric about the threat to the international rules-based order will become a self-fulfilling prophesy. It is only speculation on my part that this was a factor in Malaysia’s decision-making, but I’d suggest that in the darkening skies of the current geo-political environment, universality advocates might usefully focus on the protections that the Rome Statute offers States Parties – especially the crime of aggression over which the ICC’s jurisdiction has been newly activated.
Malaysia: a Universality Champion?
As a country located in Asia, and as a Muslim majority country, Malaysia’s membership of the Rome Statute is significant because it represents the exception rather than the rule among its closest geo-political partners. In its press release announcing the accession, the Foreign Ministry said that ‘Malaysia’s accession to the Rome Statute reflects its commitment in combating international crimes for global peace and security’ and that ‘Malaysia stands ready to work together with all States Parties in upholding the principles of truth, human rights, rule of law, fairness and accountability.’ Could this signal a willingness to take up Judge Song’s mantle and be a leading advocate for the ICC among its likeminded?
At the Council on Foreign Relations event referenced earlier, Mahathir was asked about his priorities. He said ‘well, basically, it is just a return to democratic practices, rule of law, human rights, and all that.’ A follow-up question about Malaysia’s engagement in ASEAN on these issues, prompted the following response: ‘[w]e believe in leadership by example. If you can show that our system works very well for Malaysia, I think others might want to copy. No question of our preaching to them. We are not in a position to preach to our neighbors.’
This suggests that Malaysia is unlikely to engage in soapbox diplomacy and start demarching its neighbours and partners on the subject of Rome Statute accession any time soon. Nonetheless, there is reason to hope that the newest member of the Rome Statute will in its own quiet way promote the ICC. It is already among those leading the way in both ASEAN and the OIC in trying to identify a response to the Rohingya crisis, and engaging in sustained messaging about the need to prevent and respond to mass atrocities. Its accession will inevitably be contrasted with the imminent effect of the Philippines’ withdrawal from the Statute. And it might be expected to gain a high profile in the ICC, joining powerhouses Japan and ROK in dominating elected positions reserved for representatives of the Asia-Pacific Group. Combined, these factors would provide a prominent platform for leadership by example. And one shouldn’t underestimate the impact of this: States, like sheep, often follow each other.
Here’s hoping that Malaysia’s accession to the Rome Statute ends up not only being an important statement about its commitment to ending impunity, the rule of law and human rights, but also an important catalyst for universality.Republish