KUALA LUMPUR: The murder of North Korean Kim Jong-nam could be referred to the International Criminal Court (ICC), said its president Silvia Fernandez de Gurmendi.
However, there are limitations to this as Malaysia is not currently a member of the Rome Statute of the International Criminal Court, the treaty from which the ICC derives its powers.
Also, the ICC deals with cases in totality rather than prosecute standalone criminal acts.
“The ICC can only exercise its function where a crime is committed in a member state that is part of the treaty” she said after a courtesy call on Parliamentarians for Global Action (PGA) secretary M. Kulasegeran at Parliament on Thursday.
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Gurmendi said it was still possible for the United Nations Security Council to refer the case to the ICC even if Malaysia was not a signatory to the treaty.
“The UN Security Council can also refer a case to the ICC in accordance with the UN Charter to expand the jurisdiction of the court.
“There have been two instances where Sudan and Libya were referred to the ICC,” she said.
However, she noted that cases referred to the ICC should be of the “entire situation and not a single case”.
In such a circumstance, Gurmendi said the ICC prosecutor would assess the situation to determine if there was a case.
“The ICC should be the court of last resort as the national court system should intervene first,” she said.
Furthermore, she added, the ICC did not have retrospective powers to prosecute cases such as the downing of flight MH17 in the event that Malaysia becomes a signatory of the Rome Statute.
PGA secretary-general Dr David Donat-Cattin said the UN Human Rights Council had recommended that North Korea be referred to the ICC.
However, he said, specific incidents cannot be taken in isolation and it must be shown that there was a systematic attempt to eliminate individuals who are not part of the North Korean regime.
Read also: Kim Jong-nam to be cremated, sent to North Korea: reports
The ICC comprises some 1,400 bipartisan lawmakers from 144 Parliaments.
The Cabinet had given its approval for Malaysia to be a signatory to the Rome Statute in 2009.
However, the country is still working towards being part of the treaty and will only be deemed a member three months after depositing its instrument of accession with the UN.
Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un, was killed at the Kuala Lumpur International Airport 2 departure hall on Feb 13, with what Malaysian police said was the banned VX nerve agent.
On March 1, Vietnamese Doan Thi Huong and Indonesian Siti Aisyah were charged with the murder under Section 302 of the Penal Code that carries the mandatory death penalty upon conviction.
Neither recorded a plea, and April 13 has been fixed for mention.
Read also: Kim Jong-nam murder suspect allegedly seen playing snooker in N Korean embassy
