Ratify the Rome Statute

Immediately after the calamity, United Nations High Commissioner for Human Rights Navi Pillay called for a thorough and impartial investigation, saying that the shooting down of MH17 could constitute a war crime.

Published: Wednesday January 28, 2015 MYT 12:00:00 AM
Updated: Wednesday January 28, 2015 MYT 8:03:26 AM

by M. Veera Pandiyan

IT has been more than six months since MH17 was shot down and it looks like the outrage over the mass murders in the sky is slowly being forgotten.

The Boeing 777 crashed on July 17, killing all 298 on board, including 43 Malaysians. Citizens of 10 nations were in the ill-fated jet, with the Dutch making up the majority with 193.

There has been a dearth of media coverage about the investigation into the horrific air tragedy since the last official report from the Dutch-led inquiry in September last year.

According to the initial findings, the plane broke up in mid-air due to external damage, caused by “high-energy objects” striking the plane.

MH17 was shot down while flying from Amsterdam to Kuala Lumpur in eastern Ukraine over territory controlled by pro-Russian separatists who have been at war with Ukrainian forces since the middle of last year.

Even before any investigation was launched, the United States and its allies in Europe and Ukraine were quick to blame the separatists, accusing them of blasting the plane down with a missile supplied by Russia.

Russia denied this and pointed the finger at Kiev instead, claiming that a Ukrainian air force jet was responsible.

Since then, there has been no clear information about what’s going on in the inquiry except for a recent report about the Netherlands trying to find out whether its intelligence services had warned airlines of the dangers of flying over the area because three other planes – two Boeing 777s and an Airbus – were also over the war zone about the same time as MH17.

In spite of the rush to blame Russia and swift imposition of sanctions against the country, the United States and its allies in the North Atlantic Treaty Organisation have been curiously silent about the investigations over the past few months.

In contrast, it has been Russia which has been pushing for details of the probe to be released.

“Russia alone is saying that it would be good to release at least the preliminary results of the investigation and explain why this probe was conducted with flagrant violations of the norms, which are applied specifically for such cases within the International Civil Aviation Organisation (ICAO),” Russian Foreign Minister Sergey Lavrov was quoted as saying last week.

The Joint Investigation Team (JIT) handling the probe comprises the Netherlands, Australia, Belgium, Ukraine and Malaysia.

We were the last to be included and that, too, as a mere “participant” according to official records, even though the plane belongs to Malaysia and our investigators were the first on the ground after the crash.

Let’s not forget that it was Malaysia that successfully negotiated with the separatists to retrieve the jet’s black box and also for the remains of the victims to be brought to the Netherlands.

Yet Malaysia was only offered participation in JIT after Ukraine, Netherlands, Belgium and Australia signed an arcane “non-disclosure agreement” among themselves.

Apparently, all information on the progress and results of the investigation of the disaster would remain classified under the pact and would only be published with consensus of the parties involved.

The four countries also have the right to veto the publication of the results of the investigation without providing any explanation.

The very idea of such an agreement is a gross parody of justice.

Can the Attorney-General’s Chambers and the Inspector-General of Police clarify if news reports about the pact are true?

Immediately after the calamity, United Nations High Commissioner for Human Rights Navi Pillay called for a thorough and impartial investigation, saying that the shooting down of MH17 could constitute a war crime.

But even if it is found to be so, there is little that Malaysia can do about it, no thanks to our dithering over signing the Rome Statute of the International Criminal Court (ICC).

The ICC, set up in 2002, is the first independent and permanent court with powers to probe and prosecute individuals for the most serious international transgressions, such as genocide, crimes against humanity and war crimes.

But it can only investigate and prosecute offences committed on the territory or by the nationals of states that have ratified it or accepted the jurisdiction of the ICC through an ad hoc declaration.

Both Malaysia and Ukraine have not signed the statute, which has been acceded to by 122 countries.

The United States signed in December 2000 when Bill Clinton was president but “unsigned” two years later, under the Bush administration, which also launched a worldwide campaign to lobby other countries against it.

Israel, which is now facing a possible ICC war crimes charge for alleged war crimes committed in Gaza last year, is also among the 41 countries which are not signatories.

In March 2011, then de facto Law Minister and Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz announced that the Cabinet had decided to ratify the Rome Statute to join the ICC, describing it as a “historic move”.

“This is a declaration that Malaysia rejects war crimes, crimes against humanity and genocide,” he said.

Since then nothing has happened.

The signing has been put on the back burner over concerns that joining the ICC could result in compromises to Malaysia’s sovereignty, immunity of the Malay Rulers, the position of Islam and syariah laws governing Muslims.

Such fears are unwarranted because the role of the ICC only covers international jurisdiction.

But it is still not too late for the Government to clear these misconceptions and sign the statute.

Based on the suspicious way the MH17 investigation seems to be progressing, we can at least pin our hopes on the ICC to bring the criminals responsible for the mass murders to justice.

> Associate Editor M. Veera Pandiyan likes this quote by Mahatma Gandhi: Truth never damages a cause that is just.

SOURCE www.thestar.com.my