PETALING JAYA: Malaysia is unable to take up any case directly with the International Criminal Court (ICC), including the shooting down of Malaysia Airlines flight MH17 and the killing of North Korean Kim Jong Nam.
This was revealed by ICC president Silvia Fernandez de Gurmendi during a courtesy call on Ipoh Barat MP M Kulasegaran, who is also the Parliamentarians for Global Action (PGA) secretary, The Star reported today.
Gurmendi said this was because Malaysia is not a signatory to the Rome Statute of the International Criminal Court, the treaty from which the ICC derives its powers.
“The ICC can only exercise its function where a crime is committed in a member state that is part of the treaty,” she was quoted as saying.
However, she clarified there was an alternative way for the ICC to take up either case.
“The UN Security Council can also refer a case to the ICC in accordance with the UN Charter to expand the jurisdiction of the court.
“There have been two instances where Sudan and Libya were referred to the ICC,” said the Argentinian, who was named ICC president in March 2015. Gurmendi has been an ICC judge since January 2010.
She also advised that any move to refer the case to the ICC be made only after all other avenues have been exhausted.
“The ICC should be the court of last resort as the national court system should intervene first,” Gurmendi was quoted as saying by the daily.
She added that it was still left to the ICC prosecutor to have the final say on whether there was a case that merits to be heard by the ICC.
Also sharing some views on referring the Kim Jong Nam killing to the ICC was PGA secretary-general David Donat-Cattin.
He said the ICC deals with cases in totality rather than prosecute standalone criminal acts.
“Specific incidents cannot be taken in isolation and it must be shown that there was a systematic attempt to eliminate individuals who are not part of the North Korean regime,” Donat-Cattin said, according to The Star.
He added that the UN Human Rights Council had already recommended that North Korea be referred to the ICC.
According to The Star, the cabinet had given its approval for Malaysia to be a signatory to the Rome Statute in 2009, but the country is still working on becoming part of the treaty.
Jong Nam, the estranged half-brother of North Korean leader Kim Jong Un, was killed on Feb 13 while awaiting a flight to Macau. He was attacked by two women who wiped his face with a substance later identified as VX nerve agent, a chemical poison classified as a weapon of mass destruction by the United Nations.
On March 1, the two women – Indonesian Siti Aisyah and Vietnamese Doan Thi Huong – were charged with the murder under Section 302 of the Penal Code that carries the mandatory death penalty upon conviction. Their case will come up for mention on April 13.