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M'sia can bring case to ICC despite not inking pact

Susan Loone  |  Published:  |  Modified:

MH17 It is still possible to bring the tragic shooting down of Malaysian Airlines MH17 to the International Criminal Court (ICC) despite Malaysia being not a signatory to the Rome Statute.

                                        

Malaysian Bar Council Human Rights Committee co-chairperson Andrew Khoo said while the downing of the airplane at the Russian-Ukraine border on the night of July 17 may not be a crime against humanity, it can be deemed as "possible war crimes".

Khoo cited several sections of the Rome Statute which could be helpful in nailing the perpetrators who shot down MH17 and killed 298 passengers, including 15 crew members.

These sections include Article 8(2)(a)(i) war crime of wilful killing; Article 8(2)(b)(ii) war crime of attacking civilian objects; Article 8(2)(b)(vi) war crime of killing or wounding a person hors de combat and Article 8(2)(c)(i) war crime of murder.

"These are some possibilities that Bayan Baru MP Sim Tze Tzin could raise in the Dewan Rakyat during today's debate, but whether the crime could be proven would depend on whether there is was evidential finding of the necessary intention," Khoo ( left ) said.

"But this proposal by Sim may prove to be rather interesting as all those involved - Russia, Ukraine and Malaysia - are not members of the ICC," he noted.

Yesterday, Sim proposed Malaysia to take up the case to the ICC, saying he would raise the matter at the emergency meeting called by Prime Minister Najib Razak today.

Sim has also urged Malaysia to speedily sign the Rome Statute, which has been in force since July 1, 2002, so that the country can be a member party in the ICC where it can bring the incident of the ill-fated MH17 to the world court and seek justice for the innocent victims and their families.

Russia may veto resolution

According to Khoo, the United Nation's Security Council (UNSC) could, under Chapter VII of the UN Charter, refer a particular situation to the Office of the Prosecutor of the International Criminal Court for investigation of possible breaches of the Rome Statute.  

If this is to be successful, Malaysia would need the support of all five members of the permanent members of the Security Council, and majority support from its 10 ordinary members, he added.

"It does mean that Malaysia would have to reach out to the international community, in particular the members of the Security Council, for their support," Khoo said.

"The shooting down of a civilian airliner in a situation of undeclared war between the Ukrainian government and the separatist movement could be viewed as a war crime in that the principle of non-combatant immunity was clearly violated," Khoo added.

Khoo said Malaysia is seeking membership of the UN Security Council for the 2015-2016 term, and the election will take place in October this year.

If Malaysia is elected, it could, with the support of other members of the Security Council, propose such a course of action, Khoo said.

"The tricky bit is whether Russia will support such a motion, calling for a full investigation into the incident," Khoo said.

"It might have no choice but to support a reference to the ICC, given that a 'no' vote, a veto, would be seen an attempt to protect the pro-Russian separatists and would imply its own complicity in the matter," Khoo added.

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