Malaysia Joined The International Criminal Court In March 2019 And Left A Month Later.

Malaysia deposited its instrument of accession to the Rome Statute with the UN Secretary-General on 4 March 2019. Accession was to take effect on 1 June 2019.

On 5 April 2019 — a month later, and before it ever entered into force — the Prime Minister announced Malaysia would withdraw.

It never became a State Party.

What the Rome Statute is

The Rome Statute is the treaty that established and governs the International Criminal Court (ICC), which investigates four international crimes:

• genocide
• war crimes
• crimes against humanity
• crimes of aggression

A point repeatedly made by the ICC's supporters during the Malaysian debate: the ICC is a court of last resort and can only intervene if national authorities are unable or unwilling to deliver justice for those grave international crimes.

Why Malaysia withdrew

The stated reason was domestic political pressure, not legal analysis.

Prime Minister Mahathir Mohamad, announcing the reversal:

"This is not because we are against it but because of the political confusion about what it entails, caused by people with vested interest."

He said the decision was made because of public confusion, accused detractors of trying to pit the royalty against the federal government, and stressed that his administration remained convinced the Rome Statute is a positive international treaty that should be ratified.

Reporting indicates the Cabinet did not want to. The Star cited a source describing the decision as "izin dalam paksa" — forced consent — "for it is just like forcing someone to marry. We are also retracting under protest." Another source suggested that around 90% of the Cabinet had wanted to ratify, and that objecting ministers feared the public would believe the Opposition and distrust the government.

The constitutional argument that decided it

Two objections were raised.

First — procedure. Then Opposition leader Ismail Sabri Yaakob argued that "any laws that touch on the interests of the Malay Rulers cannot be done without the permission of the Conference of Rulers." The criticism was that ratification was unconstitutional because it was made without the Conference of Rulers' permission.

Second — the Agong's immunity. The Crown Prince of Johor argued ratification could "threaten the nation's sovereignty and thus, the status of Malays and Islam", calling it unconstitutional. The Sultan of Johor said the Rome Statute, along with the equally unsuccessful ICERD attempt, touched on the monarchy, Malay privileges, and the sanctity of Islam.

The document that appears to have been decisive was not public. Student activists leaked what they described as the executive summary of a briefing by four academics to the Conference of Rulers, warning that:

• the Yang di-Pertuan Agong may be prosecuted by the ICC as supreme commander of the armed forces
• "The YDPA's role as the supreme commander is not simply symbolic or ceremonial"
• the YDPA's position fulfils Article 28(a) of the Statute as a military commander with "effective command and control"
• "Since the YDPA is the head of state, the YDPA falls under the jurisdiction of the ICC although the Rome Statute has not been inserted into the country's legislation"

The activists criticised the process, asking why the consultation was done secretly "without the knowledge of the citizens when the Rome Statute is actually a protection for the citizens from the tyranny of the leaders", and arguing the paper was "very lopsided" in discussing only why the Conference of Rulers should reject it.

The counter-argument

Constitutional commentary made a specific point that is worth understanding, whichever side you are on.

On domestic law: signing and ratifying the Rome Statute does not affect the Rulers' position under Malaysian criminal law, because any former privileges were already removed by the 1993 constitutional amendment. Since then, the King and the Rulers can be tried by the Special Court under Article 182.

On international law: joining the ICC does mean that functional and personal immunities become irrelevant at the international level vis-à-vis the ICC, under Article 27 of the Rome Statute.

So the two levels differ, and the debate largely collapsed the distinction.

The Coalition for the ICC's position was that immunities for Rome Statute crimes for high-level officials are circumscribed under domestic legislation, and that the ICC is a court of last resort intervening only where national authorities cannot or will not act. Its convenor Bill Pace called on Malaysia to reconsider and offered assistance "in addressing misconceptions around the mandate of the ICC."

Malaysian officials and ICC supporters attributed the outcome to a lack of education and understanding of the Statute at all levels.

The political backdrop

This was the second reversal of its kind. In September 2018 the Prime Minister announced an intention to ratify all remaining core UN human rights instruments, including ICERD. After significant backlash from conservative Malay-Muslim voices in the opposition and civil society, the government backtracked in November 2018.

There was a partisan dispute about precedent. UMNO MPs said that while the previous BN government had studied ratification since 2011, the then Attorney-General cautioned against it as potentially contravening the Federal Constitution and requiring consultation with the Conference of Rulers. The Attorney-General at the time of accession, Tommy Thomas, responded that the Najib administration had in fact decided Malaysia ought to accede but never followed through, and that the PH government was merely continuing that policy decision. Najib Razak replied that PH should examine why BN eventually refrained.

Regional context: Malaysia's accession was seen as a strong response to the Philippines' departure from the Court, which had become effective only three weeks earlier — the ICC's foothold in Southeast Asia being fragile.

An unresolved technical question

Because accession had not yet entered into force, there was a genuine legal question about how Malaysia could "withdraw" at all.

Malaysia informed the Secretary-General of its decision, reported in the Malaysian press on 8 May 2019, "after taking into consideration all necessary steps of implementation", assuming it would be removed from the list of State Parties.

Academic commentary questioned whether that position was legally tenable — whether Malaysia needed to formally terminate its status at all, given the interplay between Article 126(2) (entry into force) and Article 127 (withdrawal). At the time of that commentary the withdrawal was not yet reflected in the UN's official treaty list.

We could not verify how this was ultimately recorded. Check the UN treaty collection for the current status.