Netanyahu can face trial for international crimes, but Malaysia can’t refer him since not party to Rome Statute

KUALA LUMPUR, Oct 26 — Foreign Minister Datuk Seri Zambry Abdul Kadir said today that the Prime Minister of Israel, Benjamin Netanyahu, can be referred to the International Criminal Court (ICC) to face trials over atrocities against Palestine.

However, he explained that to do so requires three countries who are party to the Rome Statute — but Malaysia is not one of those who can do so, as it has not acceded to the global treaty after it backed out in 2019.

“With regards to the question of bringing Prime Minister of Israel Benjamin Netanyahu to the ICC, I would like to clarify that the issue related to Palestine has actually already been brought to the ICC.

“For your information, according to the provision in the Rome Statute, an international criminal case can only be referred to the ICC by three parties which are the member countries of the Rome Statute itself — of which Malaysia is not a member — the United Nations (UN), or at the initiative of the ICC prosecutor itself,” Zambry told the Parliament today during Minister’s Question Time.

He was responding to PAS’ Pasir Mas MP Ahmad Fadhli Shaari who asked the government why it has yet to state a firmer stance and action on the issue of the conflict in Palestine such as insisting that Netanyahu be brought before the ICC.

Zambry further explained that Palestine adopted the Rome Statute in 2015, following which the ICC prosecutor had a preliminary examination of the situation in Palestine to determine if an investigation into the conflict could be opened — and this was decided as positive in December 2019.

“Next, an in-chamber pre-trial was held in February 2021, to determine whether the ICC has jurisdiction over the Palestinian situation because it involved a complex legal and territorial issue that includes the Gaza Strip, the West Bank and Jerusalem.

“As a result of the pre-trial, the ICC prosecutor had announced in March 2021 to open an investigation into the situation in Palestine and the alleged crimes committed by Israel since June 13, 2014 without an expiration date. Therefore, the situation in Palestine is still in the investigation process of the ICC.

“Malaysia will continue to call on and cooperate with OIC countries and like-minded countries so that the UN could refer the issue of Israeli atrocities not only to the ICC but to the International Court of Justice,” he said, referring to the Organisation of Islamic Cooperation.

The Rome Statute was ratified by the Pakatan Harapan (PH) government after the coalition won the election in 2018. However, it was forced to reverse the decision a month later in April 2019 following claims by the pro-Malay lobbyists that the Yang di-Pertuan Agong would be made liable for prosecution as the supreme commander of Malaysian Armed Forces.

The Rome Statute of the ICC is an international treaty adopted in 1998, and now has 123 countries as signatories. Under it, the ICC can prosecute international crimes of genocide, crimes against humanity, war crimes and the crime of aggression.

In the latest development, Zambry said the UN has approved the request of the OIC and the League of Arab States with the support of Malaysia, Brunei, Bangladesh, Cambodia, Indo, Laos, Maldives, Timor Leste and Vietnam for an emergency meeting at the UN on the Palestine issue which will be chaired by the 78th UN General Assembly president at 10am New York time.

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