‘We’ve ratified Genocide Convention which offers no sovereign immunity’

Former ambassador and G25 co-founder Noor Farida Ariffin.

KUALA LUMPUR: A former diplomat, who initiated Malaysia’s accession to the Rome Statute, said critics propagating racial and religious sentiments are using false arguments as Malaysia had previously ratified the UN’s Genocide Convention 1948, which similarly does not allow sovereign immunity.

During a panel discussion at the Malaysia and the Rome Statute Forum here today, Noor Farida Ariffin, the former Malaysian ambassador to The Netherlands, referred to a controversial memorandum written by four law professors on the Rome Statute of the International Criminal Court (ICC).

The memorandum, submitted to the Conference of Rulers, is said to have made the Rulers reluctant to give their go-ahead for Malaysia to ratify the UN convention.

The memorandum was exposed on Facebook by a group of student activists, led by law graduate Asheeq Ali.

Farida said the professors had failed to mention that Malaysia was also a state party to the Genocide Convention 1948, which similarly does not allow sovereign immunity.

“So whether or not we accede to the Rome Statute, if any of our armed forces personnel or any of our Cabinet members or prime minister were to order any of our armed forces to commit the crime of genocide, these people can be charged.”

Under the convention, however, she said there needed to be proof or a direct link that the executive or ruler gave orders for the genocide.

Farida maintained that the Agong cannot be charged simply for being the nominal head of the armed forces, as the executive orders come from the prime minister or the Cabinet.

She added that Malaysia was highly unlikely to surrender individuals suspected of having committed crimes of serious concern to the international community to the ICC.

“The ICC, as mentioned, is a court of last resort,” she said, adding that the “principle of complementarity” was the overriding principle of the ICC.

This meant that accession to the Rome Statute would not automatically mean the sovereignty of Malaysia would be diminished as the state parties have the primary right to try individuals in their national courts.

“The principle of complimentarity must therefore be understood within its proper and fullest context in that the jurisdiction of the ICC will only be exercised when the state concerned is unwilling or unable to investigate or prosecute.”

However, Farida added that to exercise the principle of complimentarity, as stated in the statute, Malaysia would need to enact the provisions from the ICC into domestic law.

Four crimes stated under the statute would need to be included into the Criminal Procedure Code before domestic courts can prosecute individuals. These four are genocide, crimes against humanity, crimes of aggression and war crimes.

Farida added that, even if Malaysia does not accede to the treaty, the UN Security Council may still refer to the prosecutor of the ICC to investigate Malaysia in the unlikely event that Malaysia was involved in any of these four heinous crimes.

“Therefore, the argument that the Agong can be prosecuted or the argument that we will be subordinate to the ICC does not hold any water.”

Last March, Prime Minister Dr Mahathir Mohamad had said Malaysia would be withdrawing from the Rome Statute, due to pressure from various parties, most notably the Malay Rulers.

Speaking to reporters after the forum, Farida said the Attorney-General Chambers under the BN administration was the only government agency which had opposed Malaysia’s accession to the Rome Statute.

She added that former foreign minister Anifah Aman had also refused to sign the instrument of accession.

Farida, who is also co-founder of the G25 movement of prominent Malays, said if Malaysia came under the Rome Statute, the government can refer cases like the Malaysia Airlines plane shot down over Ukraine, to ICC’s prosecutor for investigation.

“We can even refer the genocide of Uighurs in China or the Rohingya in Myanmar to ICC.”

She added that the decision to ratify or accede to an international treaty was an executive decision.

“In other countries, there has to be a debate in Parliament and Parliament has to give its approval.

“In our case, we don’t need to consult the Agong, we don’t need to consult the Conference of Rulers and we don’t need to consult Parliament.”

She also believed that the government was too rash in announcing its withdrawal.

“What they should do now is to form a committee of experts and also work on a proper communications strategy.

“That’s why we have this forum, to promote public discussion of the Rome Statute so the rakyat will know what it’s all about and that there’s nothing to fear.

“It’s not an agenda of the world superpowers,” she added, saying that none of the powerful countries, such as the US, Russia or China, were state parties to the treaty.

She added that the coalition of NGOs, which had organised the forum, would be sending a memorandum to the government detailing their recommendations and urging it to reconsider the withdrawal from the Rome Statute, hopefully by next week.

These NGOs are Ikram, Sisters in Islam, Patriot and G25, among others.