Recent Myanmar/Bangladesh ICC decision reinforces flaws in alleged academics’ presentation to Rulers – Lim Wei Jiet 

From Malay Mail Online

Yesterday, the International Criminal Court’s Pre-Trial Chamber III announced its “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,” whereby the ICC authorised the Prosecutor to commence investigations into crimes in Myanmar/Bangladesh.

For context, under Article 13 of the Rome Statute, there are 3 ways to trigger the ICC’s jurisdiction in respect of the crimes listed in Article 5 (genocide, crimes against humanity, war crimes & the crimes of aggression):

(a) a referral by a State Party to the Prosecutor;

(b) a referral by the United Nations Security Council to the Prosecutor; and

(c) the Prosecutor itself initiates an investigation (investigation proprio motu).

In this instance, the third method was triggered – the Prosecutor sought to initiate an investigation proprio motu. It is a requirement under Article 15 of the Rome Statute for the Prosecutor to seek authorisation from the ICC beforehand.

At this stage, the ICC needs to consider two factors in order to decide whether authorization should be given:

(i) if the case appears to fall within the jurisdiction of the Court; and

(ii) if there is a “reasonable basis” to proceed with an investigation

The ICC found that both factors have been fufliled. Consequently, the ICC authorised the Prosecutor to commence investigation propio motu.

While the ICC decision must be celebrated, it also reinforces the flaws contained in the alleged academic presentation to the Council of Rulers dated 2 nd April 2019 (I have previously critiqued on the presentation here.  The Malaysian Government withdrew from the Rome Statute on April 5, 2019 The presentation was leaked to the public by a student activist on April 7, 2019.

The Crime of ‘Deportation’

The alleged academic presentation to the Council of Rulers boldly asserts as follows: “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom. Hanya Myanmar sahaja yang boleh membawa kes ini ke ICC dengan sendirinya oleh kerana jenayah berlaku di dalam wilayahnya. Tetapi kemungkinan kes ini dibawa oleh Myanmar ke ICC adalah sangat rendah…”

The first flaw: This statement is based on an erroneous assumption that crimes were conducted exclusively within the borders of Myanmar (a non-State party) and not within the borders of any State party, and hence no State party can refer the matter to the ICC. In other words, there is no territorial link.

The academics completely failed to take into account the crime of “deportation,” which is a “crime against humanity” under Article 7(d) of the Rome Statute. The crime of “deportation” happens when the perpetrator deports without grounds persons to another State or location, by expulsion or other coercive acts.

The ICC’s recent decision, in essence, held that it has territorial jurisdiction over Myanmar’s alleged “deportation” of Rohingya people because the victims crossed into the borders of Bangladesh (a State Party) — the crime may have began in Myanmar but was “completed” when the victims entered Bangladesh.

At the outset, whenever a crime of “deportation” occurs or is completed within the territory of a State party, then any State party to the Rome Statute can refer the matter to the Prosecutor for further action (see Article 14).

This means that, even if Bangladesh as a State party does not refer the matter to the Prosecutor, Malaysia as a State party can refer the matter to the Prosecutor. It is a symbolic fact that all States have an interest in the repression of international crimes.

But even if we accept the academics’ line of reasoning that a State party can only make a reference if a crime occurs within its territory, there is good ground to believe — based on the ICC’s recent decision — that Malaysia does indeed have territorial link to the crime of “deportation” of Rohingya people.

Tens of thousands of Rohingya people have since crossed by boats into Malaysian territory and have remained in our borders for refuge. Tun Dr Mahathir Mohamad confirmed in his speech to the United Nation’s General Assembly on September 25, 2019 that “we are also hosting close to 100,000 registered Rohingya refugees. There are many more unregistered. While this may seem like a small number compared to those in Bangladesh, plenty of resources have been dedicated to allow them a decent life while they await relocation to a third country.”

In other words, if Malaysia ratifies the Rome Statute, there is a solid case to argue that it can refer the matter directly to the Prosecutor under Article 13(a) to trigger a case for the crime of “aggression” by Myanmar against the Rohingya people. The academics’ views that Malaysia is “tidak terjejas” and cannot make a difference to the Rohingya people before the ICC is hence fundamentally wrong.

The Complementarity Principle

The second flaw of the alleged academic presentation is when they made this statement: “Di dalam konteks Malaysia, tafsiran “tidak mahu atau tidak mampu” untuk menyiasat atau mendakwa hanyalah berdasarkan keputusan Pendakwa ICC semata-mata.”

This is highly problematic from the onset. Article 17 of the Rome Statute clearly provides that it is the ICC — and not the Prosecutor — which decides whether the “unable or unwilling” principle has been fulfilled.

The ICC noted that Myanmar has thus far not raised any objections to the admissibility of this case on the complementarity principle, and said that it may receive such objections in the future and will decide accordingly. The ICC in its recent judgement reaffirms that the ICC, not the Prosecutor, is the sole adjudicator on whether the “unable or unwilling” (“tidak mahu atau tidak mampu”) principle is complied with (see para 115-117).

The impression given by the academics if Malaysia is a State party, it may be at the mercy of a biased Prosecutor who may unilaterally decide on whether our local criminal justice system has been able and willing to prosecute Rome Statute crimes. But that is not the case at all — that decision lies ultimately on a panel of independent ICC judges who will give parties a right to be heard.

Conclusion

One must recall that the abovementioned ICC’s recent decision regarding jurisdiction in respect of the crime of “deportation” and the complementarity principle are not novel. They are trite principles in international law — the ICC’s recent decision merely reinforced the same.

In fact, the ICC’s Pre-Trial Chamber I decision dated September 6, 2018 on “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” decided on these same issues — many months before the alleged

academic presentation dated April 2, 2019.

It is deeply unfortunate and saddening that the abovementioned perspectives were not brought to the attention of the powers-that-be, particularly when ratification of the Rome Statute was such an important foreign policy agenda for Malaysia.

* Lim Wei Jiet is a constitutional lawyer and secretary-general of the National Human Rights Society (Hakam).

 

Pastor Koh and Amri: 1000 days of disappearance

The following speech was given by HAKAM President, Dato’ Dr. Gurdial Singh Nijar, at the memorial held for the 1000th day of Pastor Koh and Amri Che Mat disappearance, on 16th November 2019.

Pastor Raymond Koh, and Amri Che Mat.

1000 days of disappearance

This event marks one of the most tragic developments in the law and order and governance history of the country. It has introduced a word in our vocabulary that was completely alien to us. The word: “enforced disappearance”. Even lawyers are slowly coming to terms with what it really encompasses. Stripped of legalese it means that the State (through any of its agencies) abducts a person and makes him disappear.

What is this function about? It is a reminder – a stark reminder – of how low we have spiralled down into a terrible abyss in our law and order framework. It mars the governance and Rule of Law ethos that New Malaysia is seeking to establish as part of its reform agenda.

Let me recount some significant milestones and events in the incidents.

  1. There was a certain amount of inertia by the authorities when the initial disappearance was reported on the same day shortly by a witness to the abduction – a law chambering person Roshan. Only the strenuous efforts of the children Esther and Jonathan yielded the smoking gun – a video that showed a 50-second professionally-executed abduction operation by a convoy of 7 vehicles – replete with 15 or so masked baclava clad personnel. And in the morning in a well-known residential area.

 

  1. The follow up seemed to lack the rigour and robustness that our special branch and police have a reputation for. Each time the investigations ended in an un-penetrate-able blank wall.

 

  1. To its credit, it was SUHAKAM that took up the cudgels to initiate hearings into the inexplicable disappearances of our fellow human beings.

 

  1. The hearings were characterised by some extraordinary events. The more significant ones:

 

  1. Early on in the hearing, there was a threat to open investigation papers against the lawyers for misleading the enquiry into implicating the police. This ended with an apology by the police when it was established that the alleged misleading evidence was an extract from the webpage of the police.
  2. Midway through the hearing, at a critical stage as evidence was mounting showing complicity, the then IGP issued a letter to say that SUHAKAM cease the hearing as they had now found a person – one Lam Chang Nam – which their investigations showed had kidnapped the good Pastor. Along with several others at large. This letter was on 15 January 2018. The SUHAKAM Act does say that once criminal proceedings commence its hearings and proceedings should cease.
  3. What was remarkable about this dramatic turn of events was that high police officials had testified earlier on oath that the special task force had established that Lam was a liar who was trying to extort money from the family by falsely alleging that he had information where to find the Pastor. And was being prosecuted for that.
  4. Former and then IGP Tan Sri Khalid said that Lam was not involved in the abduction. And that the abduction was tied up with some group in Thailand.
  5. It took sometime but we successfully convinced SUHAKAM to continue with the enquiry. On the basis that the charge against Lam and the issue of enforced disappearance were different. The latter was about whether or not the state (or any agency) was involved in the abduction, regardless of who had carried it out. SUHAKAM delivered a comprehensive and remarkably lucid judgment on this point.
  6. This charge against Lam: There is an incredulous paucity of information on the pace this case against Lam is proceeding. And a distinct lack of publicity. He is charged under section 365 of the Penal Code, which reads: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. This implies that the police investigations show that Lam has secretly confined the person. What and where?

The Findings

  1. SUHAKAM found that:

 

  1. Both Amri and Pastor Koh were victims of enforced disappearance;
  2. The abduction was executed by or with the support of state agents -the Special Branch;
  3. Both were targeted for allegedly being anti-Islam.

The follow-up

  1. SUHAKAM’s long and thorough inquiry had established the ‘what’. And ‘how’. What remained was the ‘who’; who authorised it and who carried it out.

 

  1. The logical follow-up should have been to carry out an independent and thorough investigation focused on who perpetrated it and flushing out the culprits; and taking appropriate action.

 

  1. However, the government at first dithered, then appointed a taskforce whose membership raised grave concerns; and finally after the removal and resignation of some members, the taskforce seems to be on track to conduct and conclude their work.

 

  1. Nonetheless there are feedbacks of disquieting features as to the way the inquiry is being conducted. As a preliminary observation there seems to be no publicity as to its proceedings. What happened to the requirement for transparency and accountability?

As to other facets – prudence being the better part of valour – we need not air here as there could well be potential legal redress contemplated if there is dissatisfaction with the process and outcome of the taskforce in its investigation into the clear and damning findings of SUHAKAM.

Conclusion

1000 days of an unsolved clear crime is a grave blot to any functioning democracy. The government must leave no stone unturned to get to the bottom of this and restore Pastor Koh and Amri to the fold of his family and friends – which include all of us gathered here today.

While I have the floor, may I also add that as President of HAKAM, the National Human Rights Society (incidentally founded by our first and third Prime Ministers), and on its behalf we add our voice and commitment to the quest for the search for truth and justice in maintaining and upholding human rights; which includes our utter abhorrence and condemnation of this crime of ‘enforced disappearance’.

May this 1000 days’ event trigger a fresh resolve and impetus to banish from our body politic and country the scourge represented by the enforced disappearance of Pastor Koh and Amri.

 

Gurdial Singh Nijar (Dato’, Dr.)

16 November 2019