On March 4th, 2019, Malaysia signed a notice of accession to the Rome Statute of the International Criminal Court (ICC). A month after, PM Mahathir Mohamad decided to abrogate Malaysia?s decision joining the Statute. It is suspected that a brief paper composed by a group of intellectuals has allegedly induced Malaysia to conduct such retraction.
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Rome Statue and the Reign of Monarchy
Malaysia?s determination to accede Rome Statute provokes an incessant controversy. A group of 4 (four) intellectuals: International Islamic University of Malaysia law professor Shamrahayu Abdul Aziz, Universiti Sains Islam Malaysia law lecturers Fareed Mohd Hassan and Hisham Hanapi, and the dean of Law Faculty of University Teknologi Mara Prof. Dr. Rahmat Mohamad, conveyed a brief paper to the Malaysia Conference of Rulers (Majlis Raja-Raja Malaysia) which object Mahathir?s action towards the associateship of Malaysia to the Statute. The intellectuals regard the accession would jeopardize the monarchy, whereat it grants jurisdiction for the ICC to prosecute Yang Di-Pertuan Agong (YDPA) and Ruler of a State (Sultan Negeri).
Notwithstanding the aforementioned, the intellectuals as well iterated that YDPA holds preeminent roles both as the Head of State and the Supreme Commander of the armed forces as affirmed in the Judgment of Malaysia Court of Appeal (Mahkamah Rayuan Malaysia) on Armed Forces Council Anor v. Major Fadzil bin Arshad (2012). Additionally, after the 1993 amendment of the Constitution, subject to Article 181, Malaysia has established a Special Court, where any legal proceedings against YDPA and the Rulers shall be brought thereto. This suggests Malaysia is competent enough to protect its sovereignty, without having to accede the Rome Statute.
There are at least three main objections emanated by the intellectuals. Firstly, Rome Statute is perceived to deny the Head of State?s immunity. Article 27 paragraph (2) of the Statute determined, ?Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person?. Thus, the immunity of the Head of State shall be subdued unto the Statute. Bearing in mind that the ICC?s jurisdiction had once been implemented to the incumbent Head of State, as occurred to the president of Sudan Omar al-Bashir, for instance.
Secondly, the status of YPDA as the Supreme Commander of the armed forces is vulnerable to be prosecuted, since YPDA holds the utmost chain of command responsibility. Conversely, intense debates had previously occurred in Malaysia to determine whether YPDA does hold an absolute power, since actually YDPA shall obtain approval from the Cabinet in order to give authoritative commands to the military.
Thirdly, the interpretation of the ?unwilling or unable? principle as stipulated in Article 17 of the Statute is often interpreted subjectively by the ICC prosecutors and the UN Security Council. In order to achieve certain political interests, it is possible to deem the national court to be incapable or unwilling to carry out a prosecution, despite the fact that Malaysia?s judiciary is known to be one of the most accountable and transparent in the world.
The Dissent against Determined Objections
Let alone Malaysia?s unsettlement towards the jurisdiction of the Court, highly populated countries such as India, China, Russia, United States, and Indonesia still refuse to join the ICC. Despite such rejection, those countries simultaneously assent the jurisdiction of another international judiciary or certain arbitration bodies. As example the International Court of Justice judgments and the World Trade Organization decisions are contently accepted without any apprehension, hence creating an anomaly.
Furthermore, the Court could only interfere if a State is found to be genuinely unable or unwilling to conduct an investigation within their territories. Taking into consideration that ICC attained requirements of admissibility as stipulated in Article 53, which obliged the Prosecutor to have a reasonable basis in determining a crime within the jurisdiction, be in the service of justice, and put the principle of complementarity in a high esteem. Furthermore, Article 17 iterates that a case shall be deemed inadmissible if such case ?is being investigated or prosecuted by a State which has jurisdiction over it?.
The previous statements elucidates that the establishment of the ICC does not substitute the national courts, nonetheless, it shall complements and supports the national judiciary system.
Indonesia and the jurisdiction of ICC
Indonesia has not yet signed the instrument of accession to the Rome Statute. One of the most profound concern is the possibility of prosecution of the Indonesian perpetrators done in several military operations, namely Daerah Operasi Militer in Aceh, or the Seroja Operation in Timor Timur. Such apprehensiveness is considered to be rather unreasonable, since the Court can only exercise its jurisdiction after the entry into force of the Rome Statute of a State, unless the State has formally declared to accept the ICC jurisdiction retroactively.
Moreover, Indonesia does not necessarily liberated Indonesia from the Court?s jurisdiction despite has not yet acceded the Statute. Article 13 of the Rome Statute asserted, UN Security Council, accountable by the Chapter VII of the UN Charter may ask the ICC to exercise an investigation over those who are responsible for grave international crimes. For example, the UN Security Council issued a resolution on 26th February 2011 (S/RES/1970) which demanded the Court to initiate an investigation over human rights violations occurred in Libya, in spite of Libya never ratified the Statute. On that account, Indonesia is still susceptible for any prosecutions of any alleged perpetrators that committed crimes within the territories regardless of its reluctance to join the Rome Statute.
In the end, there are advantages as well as drawbacks should a state accept the ICC jurisdiction. States must be cognisant of the authority of the ICC when it comes to implementing its primary mission to eradicate impunity of the grievous crimes in the international community. Reflecting upon ourselves, by acceding the Rome Statute, it will boost Indonesia?s credibility in standing for human rights in the world.