MH17 anniversary, a reminder that Malaysia must accede to Rome Statute

 

From Andrew Khoo

Today, July 17, 2024, we mark two anniversaries. The first is the signing of the final act of the Rome Statute of the International Criminal Court (ICC) on July 17, 1998. Malaysia was a signatory of that final act but has yet to become a member state.

The second is the 10th anniversary of the shooting down of Malaysia Airlines flight MH17 as it flew from Amsterdam over Ukrainian airspace headed for Kuala Lumpur on July 17, 2014.

The two anniversaries are not entirely unconnected. When MH17 was shot down, the ICC could have assumed jurisdiction if both Ukraine and Malaysia had been parties to the Rome Statute.

The Netherlands was already a member of the ICC and Ukraine had granted the ICC limited jurisdiction, which would have allowed the ICC to investigate. However, Malaysia was not a member state and had not granted the ICC limited jurisdiction, so a separate investigative mechanism had to be created and agreed upon by all three countries.

Instead of the ICC hearing the matter, the alleged perpetrators were tried (in absentia) by a court in the Netherlands, and were eventually found guilty.

Had a guilty verdict been handed down by the ICC, all 124 member states of the Rome Statute would have been legally obliged to track down and arrest the perpetrators should they be in the territory of any of those 124 counties.

However, since it was a court in the Netherlands, the judgment will have to be enforced in a piecemeal fashion. In the meantime, the families of the passengers and crew of flight MH17 continue their long wait for justice.

There must be a more constructive way for Malaysia to become a full partner to the international criminal justice system. Accession to the Rome Statute would enable Malaysia to play a bigger role in the criminal legal proceedings against Israeli leaders charged with war crimes.

This would help us further support our Palestinian sisters and brothers in their plight to seek international justice.

Accession to the Rome Statute would have no negative impact on Malaysia. The ICC is a court of last resort.

The primary role of prosecuting war crimes, crimes against humanity, crimes of aggression and genocide lies with individual countries exercising universal jurisdiction. This is the framework envisaged by the Rome Statute.

Only where a member state is unwilling or unable to prosecute these crimes within their own jurisdiction would a referral to the ICC in the Hague become necessary.

Armed forces units in Malaysia and their commanders have no reason to be fearful of the Rome Statute because Malaysian legal sovereignty would remain in effect for so long as these four international crimes are criminalised within our own criminal laws.

Let us not wait for another international criminal travesty to occur before Malaysia takes positive action.

The government must accede to the Rome Statute without further delay. The victims of war crimes, crimes against humanity, crimes of aggression and genocide need our help to achieve justice, and deserve no less.

I offer my sympathy to and solidarity with the families and friends of all those who perished on board flight MH17. May their memories continue to be a blessing to others. - FMT

Andrew Khoo is an advocate and solicitor.

The views expressed are those of the writer and do not necessarily reflect the views of MMKtT.