Malaysian Prime Minister Mahathir Mohamad with Myanmar’s State Counselor Aung San Suu Kyi at an ASEAN summit in Singapore on Nov. 14, 2018. (Photo by Lillian Suwanrumpha/AFP)
Malaysia’s accession to the International Criminal Court (ICC) will further enhance its global standing after its decision to abandon the death penalty and should add weight to efforts to prosecute six generals in Myanmar for genocide.
The government of Prime Minister Mahathir Mohammad signed the Rome Statute governing the ICC on March 5 and immediately notified the United Nations, noting the court’s objective was to end impunity — namely genocide, war crimes and crimes against humanity.
Since ousting the scandal-ravaged Najib Razak in elections last year, Mahathir has pushed his country towards international norms in regard to humanitarian issues.
He was widely praised in November for abolishing the death penalty but his agenda struck a snag and he was forced to back down from signing on to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) after heated debate from religious groups.
The Rome Statute
Of the 138 signatories to the Rome treaty, 123 — before Malaysia’s decision to join — are parties to what is often considered “the court of last resort” where referrals are made by national governments or the United Nations Security Council.
Seven U.N. members — voted against the statute in 1998, but the U.S. is now a signatory though not a party.
Only crimes committed since the Rome Statute came into force on July 1, 2002, are considered and only countries that are a party to the statute can refer or be prosecuted by the ICC, although legal arguments have been made to extend the court’s jurisdiction.
Malaysia was hurt by its absence. The ICC could have provided legal recourse and some kind of justice for the victims and families of Malaysia Airlines Flight MH17, shot down by a missile over eastern Ukraine in 2014, killing all 298 people on board.
That stung many at home, increasing pressure to sign.
To date, 36 ICC arrest warrants have been issued with convictions secured against just six people, mostly from Africa, leading to criticism that the ICC is too costly and ineffective, but its immediate future is not in jeopardy.
“Malaysia stands ready to work together with all state parties in upholding the principles of truth, human rights, rule of law, fairness and accountability,” foreign minister Saifuddin Abdullah said after the signing.
That stand will test neighborly relations. Malaysia is one of the few Southeast Asian countries to challenge Myanmar over its bloody crackdown on the Rohingya that forced about 730,000 people to flee across its northern border into Bangladesh.
Six generals have been cited by the U.N. for genocide with charges referred to the ICC. They are army chief Gen. Min Aung Hlaing, vice commander-in-chief Soe Win, Lt. Gen. Aung Kyaw Zaw, Gen. Maung Maung Soe and Brig. Gen. Than Oo.
Myanmar is steadfast in its refusal to join the ICC. Bangladesh, however, is a member and because those alleged crimes against humanity crossed into its territory, lawyers have argued that genocide charges do fall under ICC jurisdiction.
Philippine President Rodrigo Duterte has also been referred to the ICC for the arbitrary slaughter that has resulted from his “war on drugs.” Human rights groups say more than 12,000 people have been killed and the ICC referral prompted Duterte to withdraw his country from the Rome Statute.
But again, there are legal loopholes. Lawyers argued that decision does not exclude Duterte from prosecution of crimes committed before the decision to leave was implemented in March last year.
A similar story is emerging in Phnom Penh where a coterie of military, police and business people tied to the long-ruling Cambodian People’s Party are also in the ICC’s cross-hairs, in regard to land grabbing, which can constitute a crime against humanity.
Under Najib, Malaysia suffered from chronic corruption like the 1MDB scandal that ensnared the likes of Hollywood, New York investment banks, Saudi Arabia and Singapore. Nor was he helped by a dreadful diplomatic playbook that isolated his nation.
But Malaysia is a country that has traditionally sought to prove itself in the international arena, often using its Muslim credentials and its influence in the Organization of Islamic Conference with great effect.
Myanmar, the Philippines, Cambodia and Malaysia are also members of the Association of Southeast Asian Nations (ASEAN), which has a long-standing doctrine of non-interference in other members’ affairs. It’s a policy that has led to one absurdity after another.
Only after some prodding did Muslim-dominated Malaysia and Indonesia speak out about the plight of the Rohingya Muslims, while others remained deafeningly silent.
Mahathir is a shrewd politician, a proven diplomatic player and a genuine statesman, but he does not always get his way, as with the ICERD. Opposition political parties protested against that signing, claiming it would strip native Malays of their privileges and compromise Islam as the official religion.
That was all a bit much for Gun Kut, a Turkish delegate on the ICERD committee who recently left Malaysia “dumbfounded” by arguments against that international treaty. He also said Malaysia was now grouped with Nauru and North Korea as countries that failed to ratify without good reason.
However, despite that setback, Mahathir’s decision to sign onto the Rome Statute deserves applause, and perhaps he will provide some much-needed political backbone for the ICC, which it will need if it is to do its job properly in Southeast Asia.