Bangladesh Yes, Nepal Maybe, Lao PDR Maybe, Malaysia?

A consideration of Malaysia’s “wait and see” approach to accession the Rome Statute that governs the International Criminal Court (ICC) as Bangladesh acceded on Mar 23, 2010 and other developing nations are actively considering ratification.

icc rome statute logoOn Mar 23, 2010, Bangladesh became the 111th State Party to the Rome Statute that governs the International Criminal Court (ICC) based in the Hague, Netherlands. The ratification by Bangladesh caps an advocacy campaign that had gone on for more than 10 years.

At the same time, both Nepal and Lao PDR are actively considering acceding to the Rome Statute. The Prime Minister of Nepal recently announced that the issue of accession to the Rome Statute will be discussed by Nepal’s High Level Political Mechanism. And the Treaties and Law Department of the Lao PDR’s Ministry of Foreign Affairs recently hosted a regional workshop on the International Criminal Court in Vientiane. During the workshop, representatives of Cambodia, Timor Leste, Japan and Korea spoke on their country experiences regarding ratification and implementation and the benefits of being a state party to the Rome Statute.

To read more about the ratification campaign in Nepal, and developments in Nepal and Lao PDR, please click here to download the May 2010 edition of Asia-Pacific Update, a publication of the Coalition for the ICC (CICC).

Meanwhile, back home, Malaysia recently played host to the Asian-African Legal Consultative Organization (AALCO) at the end of March 2010. Representatives from 15 out of the 47 members of AALCO attended the two-day annual meeting. One of the items scheduled was a roundtable meeting of legal experts on the forthcoming review conference of the Rome Statute of the ICC.

This review conference, to be held in Kampala, Uganda from May 31, 2010 to June 11, 2010, will examine potential amendments to the Rome Statute, including agreeing on a definition for the crime of aggression. It will also consider the proposal to criminalise the use of biological and chemical weapons and anti-personnel mines when used within non-international armed conflicts. It will also engage in a stocktaking exercise, which will examine the impact of the Rome Statute on victims and affected communities.

ICC Judge’s briefing

On the sidelines of the AALCO meeting, an information session was held for the benefit of senior lawyers from the Prosecution Division of the Attorney General’s Chambers (AGC). Five members of the Malaysian Bar were also invited to attend, including the President and this writer. The briefing was given by the Honourable Kuniko Ozaki, a judge of the ICC from Japan. (Incidentally, there are only two judges from Asian countries on the ICC. The other judge from Asia is Judge Song Sang-Hyun, who is the ICC President.) Also present at the briefing was Professor Dr. Rahmat bin Mohamad of Malaysia, the current Secretary-General of AALCO, and Datuk Azailiza binti Mohd Ahad, head of the International Affairs Division of the AGC, who chaired the session.

Judge Ozaki gave a short presentation on the key features of the ICC. She lamented that Asia was very under-represented in the ICC, with only 15 out of the 111 State Parties and only two of the 18 ICC judges coming from this vast continent. Judge Ozaki pointed out that this meant the diverse and very sophisticated traditions of legal systems from Asia were not properly represented in influencing the evolving processes of the ICC.

AGC concerns

During the ensuing discussion, the Malaysian Bar delegation was able to have a frank discussion with the AGC on their concerns about the ICC. Significantly, the discussion with Datuk Azailiza, whose division is studying the Rome Statute for the purposes of Malaysia’s possible ratification, was very fruitful.

According to Datuk Azailiza, the Malaysian Government is not opposed to the ICC, but has adopted a “wait and see” approach to ratification. The Malaysian Government had signed the Final Act that created the Rome Statute (although not the Rome Statute itself). This entitled the Malaysian Government to contribute towards the ICC’s evolution. Indeed the Malaysian Government would participate in the upcoming Review Conference. However, concerns were expressed at some of the very wide-ranging suggestions that had been mooted for inclusion in the definition of the crime of aggression, including terrorism, and drug trafficking.

There was a lack of knowledge of the mechanics of the ICC, and some scepticism amongst lawyers trained in prosecution in the common law system at some of the civil law influences in the ICC, such as the supervisory role played by the ICC in the investigation and pre-trial processes.

Further, the Malaysian Government had two major concerns:

– the implications on sovereign immunity, both that of Malaysia as a nation, and of their Royal Highnesses the Sultans of the nine Malay States within the Malaysian federation; and

– the impact of the principle of complementarity, specifically the additional obligations that will be expected of Malaysia, and thus the need for enabling legislation (which must be drafted by the AGC) and the longer-term impact of whether Malaysia had the capacity to prosecute crimes of this magnitude, if it became necessary.

Impact on domestic criminal justice system

Left unspoken was the impact such enabling legislation would have on general laws dealing with the criminal justice system in Malaysia. Our system of criminal justice was still very much weighted in favour of the prosecution (e.g., very limited pre-trial disclosure rights, very little victim participation and the admissibility of illegally-obtained evidence). In addition, the death penalty was still prevalent in Malaysia and was mandatory for treason, murder, kidnapping, and certain kinds of drug trafficking. There appeared to be some wariness of the difficulties that would ensue in “upgrading” the standards of our domestic criminal justice system.

How the CICC could help

Judge Ozaki commented that it took Japan five years to study the Rome Statute before becoming a signatory, and thus empathised with the position of the Malaysian Government. One of the ways to address the concerns of the Malaysian Government is for the CICC to bring to Malaysia eminent jurists or lawyers who had experience in drafting enabling legislation, especially in countries which were also constitutional monarchies, to conduct workshops and seminars with the AGC to share how these hurdles could be overcome.

Additionally, prosecutors from the ICC and from countries which have ratified the ICC could be invited to speak to their counterparts in the AGC to explain how the prosecutorial system works in the ICC, and how enabling legislation would enrich the criminal justice system generally. Our prosecutors, and indeed the Malaysian Government, need to be persuaded that enlarging the safeguards for criminal defendants would not result in a breakdown of law and order, but would instead lead to more effective and successful prosecutions in the long run.

LB: This article was previously published here.

Related Internet Links:

Bangladesh becomes an ICC State – Global Solutions Blog


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Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 28 May 2010. You can follow any responses to this entry through the RSS 2.0.

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