Agong, rulers will be spared from ICC, says AG

The Yang di-Pertuan Agong and other Malay rulers will never be subjected to trial before the International Criminal Court (ICC) due to their positions as constitutional monarchs, Attorney-General Tommy Thomas said today.

Speaking at a forum to discuss Malaysia's move to withdraw its accession to the Rome Statute, Thomas said this was as the ICC has a clearly defined jurisdiction against four serious crimes of international concerns and targeting its direct perpetrators.

"So for example, if war is declared, although the Agong is the supreme commander of our armed forces, the decision to go to war will always be made by the prime minister, the cabinet and the minister of defence.

"Operationally it will be the generals or admirals," he said.

"If Malaysia commits war crimes, the people who will be vulnerable to an ICC prosecution will be the prime minister, ministers, generals, but never the king because he is a constitutional monarch," added Thomas during the forum organised by a group of student activists at Universiti Malaya today.

Among others, he cited example of international calls for action against former UK prime minister Tony Blair for the actions of British troops during the US-led 2003 invasion of Iraq, but not against Queen Elizabeth, who is the constitutional monarch.

Aside from war crimes, Article 5 of the Rome Statute limits the jurisdiction of the ICC to genocide, crimes against humanity and crimes of aggression committed during the time after a country had acceded to the Rome Statute.

Constitutional expert Professor Shad Saleem Faruqi further cited an example of the genocide in Cambodia which led to prosecution of former Khmer Rouge leaders under Pol Pot, but none against royal leader Prince Norodom Sihanouk.

"Out of 44 indictments by the ICC, not even one has been issued to a constitutional monarch," said Shad Saleem.

Beyond the four offences, Shad Saleem pointed out that the ICC does not hear crimes committed in the past or those already trialled by a domestic court in Malaysia.

"If you have committed these (crimes) in the past, you're still okay.

"If you have beaten up someone in the bar or you have punched several reporters, you're still okay because ordinary provisions of the Penal Code have nothing to do with the ICC," he quipped to cheers from some 400 audience members who packed the UM Law Faculty Tun Mohamed Suffian auditorium.

Another panellist, lawyer Lim Wei Jiet, also spoke against the arguments first presented by four academics in a leaked paper which purportedly convinced the Conference of Rulers to reject the Rome Statute.

Among others, Lim insisted that the four academics were being "intellectually dishonest" including by selectively highlighting ICC prosecutions against absolute monarchs to create a perception of threat against the rulers.

The forum today was held by civil society groups including G25 and Ikram in response to critics, including the four academics, who argued against Putrajaya's initial move to accede to the Rome Statute.

None of the four academics - International Islamic University Malaysia (IIUM) law professor Shamrahayu Abdul Aziz, Universiti Sains Islam Malaysia (Usim) law lecturers Fareed Mohd Hassan and Hisham Hanapi, as well as Universiti Teknologi Mara (UiTM) law professor Rahmat Mohamad - were present during the half-day forum. - Mkini