MH17 Bangkok-based Coalition for the International Criminal Court (CICC) says it has been advocating tirelessly for Malaysia to ratify the Rome Statute.
It added that had Malaysia done so, it could easily refer the downing of the Malaysia Airlines Flight MH17 to an international accountability mechanism.
The regional coordinator for the Asia-Pacific Coalition of the CICC, Amielle Del Rosario, said the coalition has worked for years supporting local partners, such as the Bar Council, to raise awareness that Malaysia has nothing to fear from becoming a member of the International Criminal Court (ICC).
"Indeed, there has been great hope, especially since 2011, that Malaysia will soon ratify the Rome Statute and our regular engagement with the government has been positive with it continuing to reiterate its commitment to the principles and the establishment of the CICC," Del Rosario (right) said in an email interview with Malaysiakini.
The Rome Statute of the International Criminal Court established the ICC, which was adopted at a diplomatic conference in Rome on July 17, 1998, and the ICC entered into force on July 1, 2002.
The ICC established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression, all of which “shall not be subject to any statute of limitations”.
Downing of MH17 'a war crime'
Yesterday, Malaysian Bar Council Human Rights Committee co-chairperson Andrew Khoo said the downing of the Flight MH17 at the Russian-Ukraine border on the night of July 17 could be deemed a war crime.
Pointing out relevant sections of the Rome Statute, Khoo said these could be helpful in nailing the perpetrators who shot down the Boeing 777 aircraft, killing all 298 on board, including 15 crew members and many children.
Khoo (right) said this in response to PKR Bayan Baru MP Sim Tze Tzin, who urged Malaysia to speedily sign the Rome Statute so that the incident of the ill-fated MH17 could be taken to the ICC to seek justice for the victims and their families.
Meanwhile, the New-York based Parliamentarians for Global Action (PGA) said if Malaysia and Ukraine were state parties to the ICC, the Rome Statute would have applied, as the alleged shooting down of MH17 was committed in both the territories - the sky under Ukrainian jurisdiction and the aircraft, which is the extended national territory under Malaysian jurisdiction.
ICC cannot automatically launch probe
However, the ICC cannot automatically launch a full-fledged investigation, as "intent and knowledge" are required to prove a case to be a war crime for it to be taken up under Article 30 of the Rome Statute, PGA secretary-general David Donat Cattin said.
"But if intent and knowledge on the part of the alleged perpetrator(s) can be proven, then I am sure that such an horrible crime can be brought to justice as it not only may constitute a war crime, but also endanger general interest and public good, which is the safety of international civilian aviation," Cattin said.
"Hopefully, the relevant investigations carried out by non-judicial bodies will not end up in finding out that this was a 'tragic mistake of fact'.
"Such a finding would become a tragedy within the tragedy," he said.
Cattin (left) said PGA is determined to continue to work with Malaysian MPs, from both government and opposition, to bring about a successful ICC process in the country.
“It was a parliamentary question of Ipoh Barat MP M Kulasegaranin April 2010 that caused then law minister Mohamed Nazri Abdul Aziz to decide to come to Kampala and participate in the 6th Consultative Assembly of Parliamentarians for the ICC and the Rule of Law,” Cattin said.
He said PGA held the Asia-Pacific ICC Parliamentary Conference in Kuala Lumpur in March 2011 and that in April that year, the Malaysian cabinet agreed in principle to ratify the Rome Statute.
However, the process has stalled because Parliament must adopt a domestic legislation to implement the Rome Statute into Malaysia law, before the cabinet can ratify the instrument, Cattin said.
“Until now, the Attorney-General's Chambers has not produced the required draft to be approved by cabinet for sending to Parliament,” he added in an email interview with Malaysiakini.