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Why Isn’t Malaysia Part Of South Africa’s ICJ Case Against Israel – PMX Explains
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Why Isn’t Malaysia Part Of South Africa’s ICJ Case Against Israel – PMX Explains

A look back in history explaining why Malaysia withdrew from the Rome Statute and didn’t ratify the ICERD.

by
November 29, 2024
Credit: Malay Mail

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On 21 November 2024, the International Criminal Court (ICC) issued arrest warrants for Israel’s prime minister Benjamin Netanyahu, the former defence minister Yoav Gallant, and Hamas military commander Mohammed Deif, although Israel said he has died in an air strike in July.

This also means Netanyahu and Gallant aren’t able to run away and hide in 124 countries that are members of the ICC.

However, they could technically run and hide in Malaysia because Malaysia is not one of the member countries and this piece of information surprised some Malaysians. Yeah, Malaysia is technically not legally obligated to arrest them.

Previously, some were also surprised that Malaysia was not one of the countries that joined South Africa’s case against Israel at the International Court of Justice (ICJ), given Malaysia’s vocal stand against Israel’s crimes.

South Africa argued that Israel violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (aka the “Genocide Convention”).

Malaysia couldn’t be directly involved in South Africa’s case against Israel at the ICJ because South Africa’s application is tied to the Rome Statute, a treaty not signed by Malaysia.

Nevertheless, South Africa President Matamela Cyril Ramaphosa said Malaysia could still voice support for the case despite not having the same status.

Prime Minister Datuk Seri Anwar Ibrahim reportedly said there’s a chance that a select committee can hold discussions with the respective parties to review the Rome Statute’s provisions.

Here’s why Malaysia isn’t an ICC member

The ICC via the Rome Statute treaty tries four core international crimes, namely genocide, crimes against humanity, war crimes, and crime of aggression.

To be honest, Malaysia actually signed the Rome Statute in 2019 and was almost a full-fledged member of the ICC.

On 4 March 2019, Foreign Minister Datuk Saifuddin Abdullah deposited the instrument of accession to the Rome Statute of the ICC. This was because Malaysia wanted to join the ICC to “combat international crimes” but it must be done under Malaysia’s conditions.

However, it didn’t happen due to political manoeuvring. On 5 April 2019, the then-prime minister Tun Dr Mahathir Mohamad withdrew Malaysia from the Rome Statute after the government fell prey to “political confusion” and criticism from the opposition parties, the United Malay National Organization (UMNO) and Parti Islam SeMalaysia (PAS), and the crown prince of Johor.

UMNO and PAS alleged that joining the ICC would harm the rulers and Malaysia’s sovereignty while the crown prince of Johor claimed that it would cause the king to face prosecution for war crimes “orchestrated” by individuals seeking to damage the royalty.

The Rome Statute also calls for equality and criminalizes persecution based on gender which goes against Bumiputera rights and traditional values.

It’s also why Malaysia didn’t ratify the ICERD

Since Malaysia has trouble eliminating race-based policies or the social contract, the country also couldn’t ratify the United Nations convention, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), on 23 November 2018.

ICERD aims to eliminate racial discrimination and promote understanding between races. If Malaysia ratified ICERD, it would need to do away with race-based policies and protect LGBT rights, amongst other things required under the convention.

To put some things into context, with ICERD, we could have done something about companies who only hire Mandarin-speaking candidates or single-race hires in companies, an issue that many jobseekers have griped about every year.

Previously, ICERD detractors said there are other laws such as the Employment Act to protect workers’ rights. While that might be true, it’s clear it doesn’t provide enough protection for everyone.

Incidentally, then-prime minister Datuk Seri Najib Razak said universal human rights are unsuitable for Malaysian society.

During an international Islamic forum in Bangi in 2015, Najib said Malaysia must defend “its version of human rights” even if it’s not acceptable internationally. He explained that human rights in Malaysia must be defined in the context of Islam, the official religion in the country.

The reasoning was to discourage youths from extremist or liberal views such as the Islamic State terrorists and the LGBT community.

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