Malaysia may have acted too hastily in becoming a State Party to the International Criminal Court. Legislation related to crimes under the ICC jurisdiction must first be enacted, together with procedures on arrest and surrender to the ICC if requested by the latter.

In its haste to join the court, the Parliament ignored these statutes. But without these special procedures, the Rome Statute which provides jurisdiction is likely to affect the privileges, position, honors or dignities of Malaysia’s Yang Di Pertuan Agong, or king, and its other rulers.

At present, 124 states are parties to the Rome Statute. Some the world’s big nations, the United States, China and Russia are not, nor are many other monarchies including Saudi Arabia, Qatar, Oman, Kuwait and United Arab Emirates do not follow suit. This includes the majority of Malaysia’s neighboring countries such as Thailand, Brunei and Singapore.

The background: The Malaysian Cabinet decided on Dec. 12 that the country become subject to the ICC’s jurisdiction. Membership began on March 4 as Foreign Minister Datuk Saifuddin Abdullah signed the Instrument of Accession.

The Rome Statute Main Features

The ICC has jurisdiction over responsible individuals ranging from subordinates and up to the heads of state and military commanders for commission of genocide, war crimes, crimes against humanity and crimes of aggression if committed on the territory of a state party orby any of its nationals.

Even if the ICC only exercises jurisdiction over these four crimes, there are many other sub-crimes under crimes against humanity and war crimes, among others murder, persecution and torture.

However, these crimes are only exercisable by the ICC subject to the "Complementarity Principle" under it which national authorities first investigate or prosecute alleged offenders. If national authorities are either unable (if there is no legislation to provide the national authorities with the power to investigate or prosecute, including the existence of immunity attached to any of those individuals) or unwilling – for example, a show trial or the investigation or prosecution of individuals which are not the same with those wanted by the ICC – the ICC will take over jurisdiction.

In addition, the governing statute stipulates that the head of state or a military commander be held responsible for crimes under ICC jurisdiction committed by subordinates. Moreover, any immunity attached to the head of state does not bar prosecution before the ICC, regardless whether it is provided under national or international law. Parties to the agreement are bound under international law to arrest and surrender the alleged perpetrators, regardless of their positions as stipulated under the statute.

Unlike other treaties which allow reservations (a statement made by states to exclude or modify the legal effect of certain provisions of the treaty in its application to the State Parties), the Rome Statute clearly prohibits its parties from making reservations on any provisions under the statute. As such, all provisions under the statute will be legally binding on them.

At present, the ICC prosecutor is investigating and prosecuting individuals including a number of heads of state, such as the Sudanese President Omar Al-Bashir and the Kenyan President Uhuru Kenyatta for alleged crimes committed by their subordinates. Even if Sudan and Libya are not parties to the statute, they are still subject to jurisdiction pursuant to UN Security Council referrals.

Since Malaysia is now a state party to the Rome Statute, indirectly it has in effect agreed to surrender its citizens, regardless of their positions, to the ICC, should the government be unable or unwilling to investigate or prosecute.

Malaysia’s Perspective

Under Malaysia’s federal constitution, the king is the "supreme head of the Federation" and the "supreme commander of the armed forces." Some might argue that these positions are only ceremonial in nature. It means that there are other commanders, generals or ministers who are discharging their duties regarding military operations. As such, these individuals will be responsible in lieu of or other than the king.

However, the Court of Appeal in the case of Armed Forces Council, Malaysia & Anor v Major Fadzil Bin Arshad mentioned that “His Majesty’s role could not have been intended by the framers of our Constitution to be merely symbolic or just a figurehead. Surely His Majesty is expected to play an effective and meaningful role as the Supreme Commander.” As such, his positions are more than merely symbolic or ceremonial.

As of now, Malaysia has no legislation on any of the crimes under the ICC jurisdiction. Local authorities would be unable to either investigate or prosecute alleged perpetrators. Moreover, the king and other rulers have official immunity before national courts, particularly before the Special Court. The Special Court is established under Part XV of the Federal Constitution. Article 182 of the Constitution stipulates that the king or any other ruler can be sued or charged for any wrongdoings but only limited to their personal, not their official capacity. These would result in Malaysia’s inability to investigate or prosecute and thus, exposing the royalty to ICC jurisdiction.

As of Jan. 31, Malaysia is ranked sixth in Asia and 28th in the world for the most troop and police contributors for UN peacekeeping missions, with 847 personnel all around the world, including to the state parties to the Rome Statute. When the statute came into force in 2002, the US was among the biggest troop and police contributors for peacekeeping missions. This made both its personnel and its president highly exposed to ICC jurisdiction should its troops or police forces commit alleged crimes.

In order to prevent its personnel, particularly its president, from being investigated or prosecuted before national courts of state parties or to be arrested and surrendered for prosecution, the US entered at least 100 bilateral immunity agreements with all parties to the Rome Statute and states to which its troops and police forces were sent.

However, not only this has not been done by Malaysia, it can no longer be done since the immunity agreements or any other similar type of agreement have been criticized by the international community for providing immunity to alleged perpetrators.

Given the number of issues and their application domestically and internationally, various state parties have attempted to withdraw from membership including The Gambia, Burundi and South Africa. The Philippines recently fully withdrew from the Rome Statute.

Not acceding to or being outside the membership doesn’t necessarily mean Malaysia doesn’t support the ICC’s works, nor does it indicate that the perpetrators of alleged crimes would go unpunished. ICC jurisdiction can still be triggered by the UN Security Council’s referral as seen in the situation in Libya and Sudan or through an ad hoc declaration as done by Cote d’Ivoire and Palestine without having being a state party.

Several Members of Parliament, among others, M.Kula Segaran, the current minister of human resources, have criticized the government for not acceding to the Rome Statute prior to the shooting down of MH17 in July 2014 in eastern Ukraine. They say Malaysia has lost its ‘golden opportunity’ to bring the case to the ICC. However, Malaysia can still bring it via an ad hoc declaration accepting ICC jurisdiction.

Ukraine, also not a state party, declared ad hoc acceptance of ICC jurisdiction since the alleged crime was committed within its territory i.e. airspace.

As a result, this case is now under the ICC prosecutor’s analysis before it can be brought regardless of the lack of membership by Malaysia and Ukraine. Thus, the need to accede to the statute is not necessary as of now.

Fareed Mohd Hassan is a senior lecturer at the Faculty of Syariah and Law, University Sains Islam Malaysia and a researcher in international criminal law and international criminal justice.