ON Feb 13 last year, a 46-year-old man initially identified as Kim Chol was murdered at klia2 when a VX nerve agent, a lethal chemical weapon, was smeared on his face by one of his assailants. He was later identified as Kim Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un.
Malaysians were shocked about how the murder was executed, and suspicious of the motive and the place where it occurred.
Malaysia is known for its vigour against transboundary crime and terrorism. When a high-profile murder occurred despite the security measures, it is disturbing and worrying.
On March 4 last year, the government expelled North Korean ambassador Kang Chol as a persona non grata under Article 9 of the Vienna Convention of Diplomatic Relations 1961 due to his unwarranted statements that portrayed Malaysian authorities as inept in investigating the murder. He had also publicly denounced the post-mortem. His allegation was an abuse of his diplomatic immunity that violated Article 41(1) of the convention.
On March 1 the same year, Indonesian Siti Aisyah, Vietnamese Doan Thi Huong and four other suspects were charged with murder. After listening to the testimony from the prosecution’s witnesses, the Shah Alam High Court, on Aug 16, ruled that the prosecution had a prima facie case and ordered the accused to enter into defence. Ironically, chances of bringing the masterminds to justice are slim despite a Red Notice being issued against them by Interpol.
It is predicted that the outcome of the trial will have substantial diplomatic effects on Indonesia and Vietnam.
Historically, diplomatic immunity has forged diplomatic
relations and courted controversies. As a founding member of Asean, preserving regional safety and economic longevity are Malaysia’s priority.
These endeavours are meaningless without an impartial law governing the affairs of diplomats. Unfortunately, the Vienna Convention is incapable of deterring Pyongyang’s interference in Malaysia’s internal affairs, which is prohibited by Article 41 (1).
Malaysia and North Korea are worlds apart, but to maintain enduring diplomatic relations demands complete understanding and, thus, disputes are inevitable. With gaps in regulating diplomatic immunity, the strength of the Vienna Convention is weakened by its vagueness, which results in a lack of enforcement and, ultimately, a lack of respect.
Protecting victims of crime is as crucial as attaining justice in trials. However, this aspect of justice is often overlooked as the focus of a trial is on the culprit.
In offences committed by diplomats, the rights of their victims are inadequately protected by the law. Unknown to many, the victim’s family’s welfare is gravely affected by the death of the breadwinner.
Where the victim is a foreign citizen, it becomes an international concern. In the United Kingdom, a scheme to compensate victims of crimes, namely the Victim Compensation Fund (VCF), has long been enforced to safeguard their welfare.
Additionally, the Diplomatic Indemnity Insurance (DII) scheme aims to install a systematic vetting recruitment of diplomats, which will ensure that Pyongyang will scrutinise the disciplinary records of its diplomats so that only the best candidate is sent to Malaysia.
Both initiatives are designed to help victims access a faster and fairer compensation, and protect the public from reckless diplomats. Although VCF is yet to be established here, provisions under Sections 426 (1A), (1B) and 432 of the Criminal Procedure Code empower a judge to order the convicted accused to compensate the victim.
Sadly, these provisions are toothless. Section 432(2) is inadequate since the maximum sum allowed is a paltry RM1,000. Moreover, a judge is probably not the most suitable person to evaluate damages in criminal cases and it is best left to an expert to appraise damages.
Jong-nam is survived by a wife and six children. Hypothetically, the convicted accused will be ordered to compensate Jong-nam’s wife. However, its practicality will be questioned. This is where VCF is needed to compensate victims and to complement the law.
In managing diplomatic disputes, Putrajaya must analyse methods to revitalise bilateral relations. Employing options, such as Track 1.5 and/or Track 2 Diplomacy, is laudable.
Besides that, China can be a
facilitator, while respected individuals like former United States presidents Jimmy Carter or Barack Obama could be mediators.
Carter proved his mettle during the 1994 US-North Korea nuclear weapons crisis, while the latter has been praised for his efforts to promote the non-proliferation of nuclear weapons.
South Korea employed Track 2 Diplomacy when it invited Pyongyang to participate in the 2018 Winter Olympic in Pyeong-chang on Feb 9.
Despite criticism, President Moon Jae-in believed “Olympic Diplomacy” offered a respite from the escalating crisis. Pyongyang also realised that the timing was unsuitable for a nuclear weapons test or inter-continental ballistic missiles launch.
The Winter Olympics 2018 shall be remembered as the event that halted the standoff between the US and North Korea, which may encourage more measures aimed at integrating Pyongyang with the rest of the world. The apex of Olympic Diplomacy was materialised when US President Donald Trump met Jong-un for a peace summit on June 12 in Singapore.
Diplomatic immunity is often manipulated by diplomats, but it is an anathema to the authorities. The lack of strict supervising of how it functions has resulted in its abuse.
Protecting victims of domestic and transboundary crime remains an important pillar of justice. Hopefully, by implementing VCF and DII in Malaysia, such reforms can benefit all.
Diplomacy is the best way to resolve a crisis and serves to reflect Malaysia’s stand of non-alignment in geopolitics. Despite the adverse response from Pyongyang, Malaysia will defend justice for all individuals, regardless of their nationalities.
MOHD RIDWAN TALIB
Kuala Lumpur