Malaysia's Withdrawal From The Rome Statute: Saving The Supreme Commander From Liability? Fadzil Mokhtar

As the world observed the anniversary of the adoption of the Rome Statute last July 17, it is worth looking back at Malaysia’s withdrawal from this treaty on April 29, made, hardly two months after depositing the instrument of accession to the United Nations, in response to calls against abrogating the immunity of the sovereign, for fear that His Majesty the Yang di-Pertuan Agong could be sitting in the dock for crimes committed by members of the Armed Forces.  Malaysia, thus, remains amongst a handful of states not parties to the multilateral agreement that creates the world’s permanent criminal court with jurisdiction over perpetrators of genocide, war crimes, crimes against humanity and crimes of aggression, all of which are deemed core crimes of concern to the international community.

There is no denying that, had it acceded to the Rome Statute, Malaysia would have consented to the waiving of immunity ordinarily enjoyed by the Head of State given that Article 27 of the statute expressly overrides such immunity from the ICC’s jurisdiction. What follows is the convoluted question as to whether His Majesty, being the Supreme Commander of the Malaysian Armed Forces, could be held liable under Article 28 of the statute for any of the listed crimes committed by military personnel.  This provision centers on the doctrine of command responsibility, an established principle of customary international law, under which a commander is imputed liability for the unlawful conduct of his subordinates.  The commander, nevertheless, does not positively contribute to his subordinates’ commission of the wrongful act, but his offence stems from his failure to prevent or repress the illegal conduct of those under his effective command.  To that end, the commander’s possession of effective command and control over the subordinates is the foremost prerequisite for the imposition of command responsibility. 

Based on the ICC’s jurisprudence, the term “effective command and control” can be summarized as referring to the “actual powers of control possessed by a commander over the actions of his forces,” and this can be determined through a factual examination of the commander’s position beyond the formal titles ascribed to him.  Among the factors from which the necessary powers of control can be inferred are his position, as well as the tasks he performs, within the military structure, his authority to order forces to engage in armed conflicts, his capacity to alter the command structure, and his power to promote or discipline members of the forces. 

In examining Malaysia’s position, one cannot ignore the foundational principle that the Yang di-Pertuan Agong acts on the advice of the Cabinet, or any Minister acting under the authority of the Cabinet, on all matters save for the circumscribed few within the crown’s discretionary domain, none of which, however, touches on command and control of the Armed Forces.  In truth, except for matters relating to its operational use, responsibility for all other matters pertaining to the Armed Forces, even its command, discipline and administration, is vested in the Armed Forces Council.   As such, it is the council, chaired by the Defence Minister, and not the Yang di-Pertuan Agong, that plays a wide ranging role in the affairs of the military, including the promotion, placement and discharge of personnel, and the administration of military justice, besides determining or changing the disposition and composition of the regular forces.  Admittedly, His Majesty could influence the decisions of the council, but case law has firmly established that the exercise of influence, howsoever substantial, would not be the ticket for effective command and control.

Although matters relating to the operational use of the Armed Forces are expressly excluded from the council, it does not necessarily mean that the Yang di-Pertuan Agong could order troops to battle. This exclusion is, rather, meant to effectuate civilian control of the military as decisions concerning the use of the forces lie with the executive branch subject only to legislative oversight.  In this respect, by conferring the Defence Minister with the power to declare a period of “active service,” which includes a period during which a force is engaged in operations against the enemy, Section 4 of the Armed Forces Act provides an indication that the deployment of troops is a political decision that can be taken exclusively by the democratically elected government. 

It is also noted that the existing structure governing military command clearly designates the Chief of Defence Force as the overall commander who is responsible to the Minister of Defence and no other.  With this arrangement, along with the Minister’s chairmanship of the Armed Forces Council, the capacity of the government to determine the operational use of the forces, and the legislature’s power of the purse, de facto command and control of the Armed Forces actually lies with the civil power, and not the sovereign.  In fact, this is the practice of civil-military relations, commonly found in western oriented democracies, fundamental for the creation of a strong military, and, yet, subordinate enough to do only what the political master authorizes it to do, thus removing the risk of the military becoming a threat to the political order.

It is therefore beyond doubt that His Majesty, not being in effective command and control of the Malaysian Armed Forces, would not incur liability under Article 28 of the Rome Statute.  However, the monarch remains vulnerable to prosecution under Article 25 which is based on the doctrine of direct instead of imputed command responsibility.  Unlike Article 28, this offence does not hinge on the failure of the commander to control his forces, but on his positive participation in the commission of any of the core crimes by his subordinates.  Acts of ordering, soliciting or inducing subordinates to commit the crimes would constitute a culpable conduct even if such crimes are only attempted. Moreover, the commander’s mere provision of physical or psychological support to his subordinates would attract similar culpability as doing so tantamount to facilitating the perpetration of the crimes deemed as the most egregious to humanity.   Unfortunately, the effect of direct command responsibility on the monarchy has not been adequately addressed with arguments instead focusing primarily on imputed command responsibility. 

Whilst it may be far-fetched to contemplate the involvement of the Supreme Commander in the impunity the Rome Statute seeks to end, it is His Majesty’s susceptibility to the ICC for direct, rather than imputed, command responsibility, that has perhaps galvanized opposition to the Rome Statute.  More than this, is the trepidation about the possibility of the ICC prosecuting the monarchs, in the event Malaysia is unwilling or unable to enforce the statute, as it would render meaningless the constitutional rights to a special court endowed to the Yang di-Pertuan Agong and the Rulers. 

Accordingly, there is indeed a fundamental issue that warrants rumination and resolution.  Contrary to popular belief, Malaysia’s accession to the Rome Statute would undoubtedly affect the privilege and position of the Yang di-Pertuan Agong and his brother Rulers if Article 25 is carefully scrutinized.  The consent of the Conference of Rulers would therefore be needed for the passage of subsequent implementing legislations even though such consent may not be required for the country to enter into the international treaty.   Unless this matter is reexamined, and resolved, Malaysia’s road to the Statute of Rome would continue to divide the nation, worryingly owing to misconceptions about its impact on sovereign immunity customarily enjoyed by Heads of State.