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The International Criminal Court is a court of last resort and a tool of the United Nations Security Council, which can decide if a case should be referred to the ICC.

THE new Malaysia is an activist-oriented government. It responds to the calls of the activists, which means that the government is more sensitive to people than ever before. But

activists are also idealists, and sometimes they can’t see the forest for the trees. An activist’s job is to campaign for a course and to convince the management that his goal is what the people want.

For one month this year, Malaysians got what they wanted — the Rome Statute. The instrument of accession was deposited at the United Nations on March 4. That was a serious act on the part of the government because it means it was committed to be legally bound by the terms of the statute. It turns out that in acceding to the Rome Statute, the prior and comprehensive consultations were not so comprehensive after all.

Suddenly there were concerns with some of the provisions, such as Article 27. This article gives the International Criminal Court (ICC) jurisdiction over person(s) even in their official capacity, including the head of state or government, minister, elected representative or official. Some argued that it would be far-fetched for our king in his own capacity or as the supreme commander in chief of the armed forces to be implicated in the four heinous crimes described in the Rome Statute because Malaysia is a constitutional monarchy.

Therefore, when the ICC exercises jurisdiction, the king would be spared because he is only acting upon the advice of the head of government, the prime minister. The problem with this argument is that there is no precedent of a constitutional monarch hauled up in the ICC. This is because the ICC is quite a new institution and only began sitting in 2002. Although war crimes and genocide have happened during our lifetime — in Cambodia, in Rwanda, in the Balkans and in Iraq, the ICC was not institutionalised when they occurred.

But one historical incident can be used as a guide. Emperor Hirohito was a constitutional monarch of Japan during World War 2. Upon the advice of his prime minister, Hideki Tojo, the emperor gave his consent to go to war against the United States and its allies. The plan to attack Pearl Harbour was explained in detail to Hirohito who approved it.

When Japan lost the war and surrendered to the United States, the International Military Tribunal for the Far East for War Crimes found Tojo guilty of some of the crimes now found in the Rome Statute. He was sentenced to death by hanging. A pertinent question that was raised at his trial was whether he or the emperor should be held responsible for waging the war. Tojo said that he would need the emperor’s approval to go to war and would be reluctant to attack the United States if the emperor had said no. Yet, Emperor Hirohito was spared because General MacArthur exonerated him and all members of the imperial family from criminal prosecutions.

The relevant question is, would a similar superpower or the members of the United Nations Security Council pardon a constitutional monarch should such heinous crimes occur again? As a sovereign country, does Malaysia really want to be dependent upon the largesse of another country, or even a group of countries? While it is true that the ICC is a court of last resort, it is also a tool of the Security Council — the body that can decide if a case should be referred to the ICC. For as long as the Malaysian court is unable and unwilling to prosecute, it will in effect hand over jurisdiction to the ICC when Malaysia is a member of it.

And what happens to a state party that harbours war criminals? Jordan is a recent case in point. In a decision of the ICC Appeals Chamber last week, the court found that Jordan, as a member of the Rome Statute, had failed to comply with the request to arrest Sudan President Al Bashir and surrender him to the courts when he was on Jordan’s soil. Jordan’s fate now rests with the Security Council, which has the power to sanction a state.

Even if Malaysia does not commit one of the crimes under Article 5 of the Rome Statute, it is obliged as a member of the Statute to ensure that those persons wanted for questioning, or with warrants of arrest must be turned over to the court should they be in Malaysia for any reason. With so many transiting Malaysia and attending summit meetings, it is not inconceivable that we will fail to comply. And with some countries in our region potentially to be held liable for genocide, it is highly likely that we will be caught in this highly political-judicial game.

What’s done is done. We acceded to the Rome Statute, then reversed ourselves. Just because we are not in the ICC does not mean we do not ascribe to the finer points of its existence. We can always enhance our judicial system so that we are in line with international norms. All is not lost. For now we just need to move on.

The writer is Malaysia’s former ambassador to the Netherlands and Malaysia’s Observer to the Assembly of State Parties to the Rome Statute from 2008 to 2014

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