Withdrawal from Rome Statute – Between a Rock and a Hard Place

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Opponents of treaty trying to pit the Malay rulers against the government.

  • PM warns that even without ratifying the statute, no one in this country – whether they are “prince or pauper” – was above the law
  • Having made a collective decision, ministers must all take responsibility and should have been with the PM when he made the announcement
  • Undeserving to the government that is trying to do the right thing, to be progressive and be part of a rule-based international community that respects international human rights law
  • Agong informed of cabinet’s decision to accede to Rome Statute
  • Johor palace stood against government’s move, with TMJ claiming Rulers had not been consulted beforehand
  • Government buckling under pressure viewed as showing weakness
  • Putrajaya seen as making the same mistake with Icerd – did not prepare the public, especially important stakeholders
  • Perpetrators of “enforced disappearance” cannot be subjected to prosecution in the ICC
  • Looks as if the extremists have won the battle
  • Social media debate on Rome Statute U-Turn divided on whether government a chicken or a victim
  • Umno leaders mock the decision to withdraw

Prime Minister Dr Tun Mahathir Mohamad yesterday announced that Malaysia will withdraw from the Rome Statute of the International Criminal Court (ICC).

“There seems to be a lot of confusion about the Rome Statute, so we will not accede,” he told a press conference on Friday (April 5).

“This is not because we are against it, but because of the political confusion about what it entails, caused by people with vested interests,” he added.

The ICC was established in 2002 and is governed by the Rome Statute.

The ICC is the first permanent, treaty-based, international criminal court, with the objective to end impunity against the perpetrators of the most serious crimes of concern to the international community, namely genocide, war crimes, crimes against humanity and crimes of aggression.

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Dubbed the “court of last resort,” ICC takes action against individuals when a government is unwilling or unable to prosecute on any of those four crimes.

The decision to withdraw from the statute was made collectively at the Cabinet meeting yesterday, Mahathir revealed.

He said the government had no choice but to withdraw from the Rome Statute, adding that opponents of the treaty were trying to pit the Malay rulers against the government.

He stressed that the decision is not because the statute is harmful to the country.

Mahathir also said the withdrawal was due to the confusion created by “one particular person who wants to be free to beat up people”.

“If he does that, I will send the police to arrest him. I do not care who he is. 

It is an attempt to blacken the good name of the government,” he told reporters.

The Rome Statute serves to complement existing laws in member-states to prosecute individuals who commit international crimes,

Mahathir said the decision to withdraw was not due to fears of government leaders being prosecuted.

“We are withdrawing not because it is harmful to us, but because of the political confusion that has arisen.”

He said the opposition to Malaysia joining the treaty was political, and a move by critics of the government to get the rulers to back them.

“Of course, some members of the royal family may be involved, but the whole idea is to get the royalty in Malaysia to go against this government. That is the motive.”

When asked if he was alluding to a member of the royal family from a southern state, Dr Mahathir coolly replied: “You can make your guess. You are welcome.”

Malaysia’s ratification of the Rome Statute has come under attack from the Johor palace, with crown prince Tunku Ismail saying Malay rulers could fall victim to “orchestrated war crimes” by those wanting to see the fall of the country’s royal institution.

“What if there are orchestrated war crimes and such?” he asked on Twitter recently.

“Key word ‘orchestrated’, and those wanting to menjatuhkan Msia’s sistem Diraja [bring down Malaysia’s monarchy] can do that, and the King takes the hit. Or is someone trying to be the commander in chief?”

Foreign Minister Saifuddin Abdullah said the Cabinet had signed the treaty after being satisfied that the King, who is the supreme commander of the armed forces, would not be affected.

Mahathir said some people were easily misled by certain quarters, adding that there was a lack of understanding by the public on the issue.

He said he was very surprised that some people tried to make use of this signing of the statute as evidence that this government has surrendered everything to the statute.

“I know there is an attempt to undermine this government by saying we have surrendered all power to foreigners. We have not.

“There is no way they can take action against us, if, for example, the previous government ‘bossku curi duit‘ (the previous prime minister stealing money), we take action according to the law and there is no way they can interfere,” he said in apparent reference to former prime minister Najib.

“But now on this issue, they try to use it to disparage the government, especially labelling me as a traitor to my race.

“It’s okay, they have already labelled me a traitor. They are the biggest traitors. When Najib stole money, sold (government) land, did all kinds of bad things, they did not say a word. They were hiding, I don’t know where, but they were worried action might be taken against them,” he said.

Mahathir said he had been strict in applying the rule of law, such as taking action on money laundering, and since his government upheld the rule of law and wanted to take action against them, they brought up the Statute of Rome issue.

He reiterated that whoever breaches the law will be punished, regardless of whether they are “prince or pauper”.

He also rubbished the suggestion that the Rome Statute would undermine the Malay rulers.

“This is absolute nonsense. They cannot possibly come and depose our king because somebody under him, some soldier, shot somebody.

“That cannot be done, because the King is not an executive king or monarch, but acts on the advice of the prime minister. Of course, they can take action against me, but for what? Am I going to kill people? Am I going to take away the privileges of the Malays?” he asked.

“I was the one who helped them, the Malays more than anyone else until I was known as ultra Malay. But now they are trying to damage that image because they can’t make any progress politically.”

Mahathir said the statute could be applicable if the Malaysian government engages in the genocide of non-Malays and confiscates their properties.

However, the government had no intention to commit crimes such as genocide or other excessive acts.

“What we are doing now is not excessive. We ensure equal distribution of wealth. Everyone will benefit,” he said, referring to pro-Bumiputera policies.

He pointed out that Myanmar did not sign the statute but was internationally condemned over its mistreatment of the Rohingya.

Asked why he looked upset over the decision, Mahathir said this was an attempt to undermine the government and him as prime minister.

“I see this as a way to blacken my image. They know they cannot oust me easily so they have to paint a black picture of me,” he said.

During the press conference, Mahathir alluded several times to the involvement of royalty behind protests towards the ratification.

Without naming them, Dr Mahathir pointed out the hypocrisy of his detractors, saying that they were silent over Najib’s “misrule”.

“When Najib stole money, when Najib sold land and did so many things, they didn’t say a word. They were hiding, I don’t know where, but they were worried action might be taken against them.

“The cowards saw Najib stealing money and said nothing. They wanted to benefit from Najib’s misrule. Who they are you can guess,” he said.

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“But now that we want to have a rule of law and we want to take action against them, they bring up this matter,” he added, referring to the Rome Statute.

The prime minister warned that even without ratifying the statute, no one in this country was above the law.

Mahathir had previously written to the acting Yang di-Pertuan Agong on Dec 26 last year, informing the latter of the Cabinet’s decision on the matter.

Saifuddin informed the Yang d-Pertuan Agong on February 15, 2019, of the Cabinet’s decision to accede to the Rome Statute of the ICC.

On March 4, Saifuddin signed the Instrument of Accession to the Rome Statute of the ICC, which was deposited with the Secretary-General of the United Nations on the same day.

On March 10, Tunku Ismail tweeted that the government had failed to consult the Conference of Rulers when it agreed to accede to the Rome Statute and that the government had undermined the rulers’ position.

On March 23, the Sultan of Johor accused Putrajaya of violating the Federal Constitution by signing the Rome Statute.

Sultan Ibrahim said that the Rome Statute, along with the attempt to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd), had touched on the monarchy, Malay privileges, and the sanctity of Islam.

“Any party that touches the rights and powers of a ruler or state government is breaking the law and can be considered traitors.

“The action of the Federal Government to ratify Icerd and sign the Rome Statute is an action that is contradictory to the Federal Constitution because it touches on the power of the rulers and the special status of the Malays as well as the sanctity of Islam in the country,” he said.

On April 4, Opposition leader Datuk Seri Ismail Sabri Yaakob filed a Private Member’s Bill in Parliament urging the Federal Government to also withdraw from the Rome Statute.

Claiming that the government’s decision to accede to the statute without due debate in the august House was worrying, he pushed for the withdrawal as ICC would affect the position and the immunity of the Yang di-Pertuan Agong.

He also called for the matter to be debated by all lawmakers.

On why the issue was not tabled in Parliament for approval, Mahathir said there was no need to debate everything in public, and that the government has the authority to approve and sign treaties.

“I don’t think we have to debate everything in public. If we do that, there will be differences in opinion and we cannot make a decision,” he added.

Mahathir said the government still strongly believed that the Rome Statute is a positive international treaty that should be ratified.

When asked to comment on the decision to withdraw from the treaty, de facto law minister Liew Vui Keong confirmed the Cabinet made a collective decision to do so and all parties should abide by the decision regardless of their personal views on the matter.

“We cannot disagree with it because it’s a collective decision.

Yusof Mat Isa

“So our private views on that matter will remain private,” he said.

Questioning the ministers’ absence, former Bar Council president Ambiga Sreenevasan said the cabinet should have been present when Mahathir made the Rome Statute announcement following the collective cabinet decision.

Describing the decision to withdraw as a mistake, she was quoted as telling Malaysiakini: “They ought to have been present with the prime minister to make the announcement whether they agreed with it or not. Or whether they felt compelled to or not.

“They must all take responsibility for this decision which I believe is an embarrassment particularly as it shows a total misunderstanding of the ICC.”

Soon after Mahathir made the announcement during a press conference in Putrajaya yesterday afternoon, Ambiga tweeted: “Cabinet’s disappointing decision and this man is left to make the announcement alone.”

FMT

In a subsequent posting, she said the Pakatan Harapan administration has the right ideas but self-serving politicians are making it difficult to bring about real change.

“Facts and truths no longer matter in post-M’sia Baru politics”

Malaysia’s Representative to the Asean Intergovernmental Commission on Human Rights (AICHR) Eric Paulsen was also disappointed with the decision.

“Malaysia withdrawing from the Rome Statute is so disappointing. It is undeserving to the government that is trying to do the right thing, to be progressive and be part of a rule-based international community that respects international human rights law,” he tweeted.

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He said that in the post-“Malaysia Baru” (New Malaysia) politics, facts and truths no longer matter.

“Who cares if you don’t know and care to know what the Rome Statute, the ICC and international law stand for?

“The ICC is a court of last resort for the prosecution of serious international crimes i.e. genocide, crimes against humanity, war crimes and crime of aggression. Which part don’t you understand?” he added.

Asean Intergovernmental Commission of Human Rights chairperson Charles Santiago said the withdrawal from the Rome Statute reflects negatively on the prime minister and his cabinet ministers.

“It shows the government is not prepared, and that is why they are buckling under pressure.

“It shows they have not outgrown their weaknesses.

“Upon pressure, they quickly relent. It sends a wrong message to the public.”

He stressed that Mahathir’s decision to cave in to the pressure from certain quarters makes him look “very weak”.

“Those who voted for you are disappointed, thinking you will make the right decisions, it reflects negatively on him (Mahathir) and the rest of the Pakatan Harapan cabinet,” Charles said.

This U-turn, he added, is a loss of face for the Foreign Affairs Minister Saifuddin Abdullah, who signed the statute on March 4.

“If you behave in a weak fashion, how will people support you?” Charles asked.

Saifuddin had said that he had informed the Yang di-Pertuan Agong on February 15 of the cabinet’s decision to accede to the Rome Statute.

The Johor palace had, however, stood against the government’s move to accede to the Rome Statute, with Johor Crown Prince Tunku Ismail Sultan Ibrahim claiming that the government failed to consult the Conference of Rulers beforehand.

Soon after Mahathir made the announcement of withdrawal, Tunku Ismail tweeted: “Long Live the King. Demi Agama, Bangsa dan Negara (For religion, race and country). Daulat Tuanku.”

The DAP Klang MP recalled that during his first tenure as prime minister in the 1980s, Mahathir had been firm with the royalties, “bulldozing” a constitutional amendment which affected their immunity from prosecution.

However, the premier’s attitude now has affected the country’s democratic and human rights reforms in the New Malaysia, he said.

“Just because some people throw a spanner in the works, you relent. This sets a dangerous precedent, where certain quarters would take advantage of,” Charles said.

He said the government may say that it withdraws the statute because of confusion and not because they fear anyone, but it had made the same mistake with the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd).

“They did not prepare the public, especially important stakeholders. When countries like Saudi Arabia and Brunei had signed on to the Icerd, I don’t see why we have a problem with the Muslim community and groups (here),” he added.

Former law minister Zaid Ibrahim said the government cannot blame the rulers or political opponents for its withdrawal with regard to the Icerd and now the Rome Statute.

“You do not have the confidence to explain and make people understand simple concepts about the world. What kind of leaders are you?” he tweeted.

Interestingly, the Rome Statute has jurisdiction in cases of “enforced disappearance”, which was at the centre of the Human Rights Commission’s (Suhakam) damning findings following its inquiry into the mysterious disappearance of two activists.

Article 8 of the Rome Statute on crimes against humanity lists “enforced disappearance” among 11 crimes.

Hence, Malaysia’s withdrawal from the Rome Statute could mean that perpetrators of “enforced disappearance” cannot be subjected to prosecution in the ICC.

As of March 18, there were 122 countries that are party to the Rome Statute.

Some countries that have not acceded to the statute include the United States, China, Russia and India.

In contrast to Mahathir’s announcement that Malaysia would be able to withdraw from the statute before June this year, former chair of the Asean Intergovernmental Commission on Human Rights Edmund Bon said Malaysia can only withdraw after one year of its ratification.

Bon said Article 127 of the Rome Statute states that a state party may withdraw from the ICC by giving written notice to the secretary-general of the United Nations. The withdrawal would then take effect after one year of the receipt of the notification.

“It is the first time a country is withdrawing so fast after acceding to it, and I would take the conservative view that we still have one year from the date of notification to the UN Secretary-General,” the human rights lawyer said.

He cited the case of the Philippines, whose withdrawal from the Rome Statute also took a year to come into effect.

“The one-year period means we can still lodge complaints about the persecution of Rohingya, Palestinians and Yemeni communities, (and) we can still use the Rome Statute for international crimes committed on our land,” he added.

Bon also noted that the ICC was meant to promote accountability and that it would be difficult for Malaysia to do so now that the statute would no longer be ratified.

“We do not need to discuss the matter in Parliament before ratifying the Rome Statute.

“Once ratified, Parliament would have to enact domestic laws to implement the ratification, ” he said.

Bon questioned why certain quarters are afraid of the four crimes under the Rome Statute.

“Only those who have committed or are capable of committing these crimes are afraid of it,” Bon said.

“It looks as if the extremists and those afraid of the four crimes have won the battle,” he added.

The Malaysian Insight reported that on social media, Putrajaya’s decision to withdraw from the Rome Statute has sparked anger on two fronts – against what appears to be another U-turn by the government, and against those believed to be manipulating the issue for political gain.

“Tun Dr Mahathir chickened out for the second time. First ICERD and now Rome Statute,” said Twitter user Aruna, referring to the backtracking on ratifying Icerd after backlash from Malay-Muslim groups.

Reportedly, some Twitter users said Putrajaya was being “pathetic” in blaming the opposition, with user Hard Boiled Peguam saying it was the government “who failed miserably in explaining the rationale behind the action…to ratify the Rome Statute”, while other users said that there was “political confusion…caused by people with vested interests”.

“The confusion, I gather from the PC, is not confusion amongst the people. But ‘confusion’ amongst the royals,” Syahredzan Johan, lawyer and political secretary to DAP’s Lim Kit Siang, tweeted.

Others such as Harris Zainol said it showed that “disinformation along the lines of Malay-Muslim victimhood is an effective political strategy”.

Selvi Veloo said only “cowards” would be against the Rome Statute. “Educated and honourable men and women will support Rome Statute. Only the crooks and ill-intentioned people will be against it. We rakyat can judge who you are”.

Umno leaders mocked the government’s decision to withdraw from the Rome Statute with Najib pointing out the multiple times Pakatan retracted its decisions.

“U-Turn again? How many times is this,” Najib posted on his Facebook page.

He questioned the government’s earlier decision to sign the statute if it knew all along it couldn’t adhere to the treaty and also asked who was advising the government.

“After months of defending themselves, the government’s excuse is that due to the inability to adhere to certain stipulations in the Rome Statute they’re withdrawing.

“How did they sign it, to begin with, knowing well there were requirements we couldn’t follow? This is a serious issue as the entire world knows we’ve signed the statute. Now a U-turn,” he added.

Umno secretary-general Tan Sri Annuar Musa took to Twitter to chide the government.

“Who got us ‘stuck’ with the Rome Statute for almost a year? Whose fault is it??” he asked.

“Even if we want to withdraw, it’ll take a year according to the law experts,” said the MP for Ketereh.

“Clearly the Foreign Ministry did not do proper engagement of the relevant stakeholders and ill-advised the PM on such [an] important issue,” former minister in the Prime Minister’s Department Datuk Abdul Rahman Dahlan tweeted.