KLFCW Charter

CHARTER OF THE KUALA LUMPUR FOUNDATION TO CRIMINALISE WAR

[As adopted by Resolution No. 6 of the Kuala Lumpur Foundation to Criminalise War Inc. and entered as Statute VIIIA and Statute VIIIB respectively in the Statute Book of the Foundation on 6th June 2008 - incorporating all amendments up to 20th September 2013.]

INTRODUCTORY NOTE In 2005 the Perdana Global Peace Organisation (PGPO), of which His Excellency Tun Dr. Mahathir Mohamad is the Chairman, organised the Kuala Lumpur Global Peace Forum.

The Forum, held on 14-17 December 2005 at the Putra World Trade Centre (PWTC) Kuala Lumpur was attended by more than 2000 people from all the five continents.

In his keynote address at the Conference Tun Dr. Mahathir said, inter alia, that “We would like this Conference to be the beginning of a world-wide sustained effort to criminalise war and banish it as an option in the settlement of disputes and conflicts between nations; to recognise and define war as legitimised mass murder, as inhuman and uncivilised. We would like this conference to reject war totally and to accept peace as worthy of being the true expression of the humaneness and nobility of humankind, that peace be the ultimate measure of the level of civilisation humanity should strive for, should attain.”

Tun Dr. Mahathir also said that the “primary purpose of this peace Conference… is to initiate and help make effective a sustained campaign against war, a campaign to make the killing of people as a means of solving disputes between nations illegal.”

At the Forum, which spanned over 4 days, 8 separate sessions and involving more than 30 well-known national and international speakers, the participants issued a historic document known as the THE KUALA LUMPUR INITIATIVE TO CRIMINALISE WAR. That Initiative reads as follows The Kuala Lumpur Global Peace Forum of concerned peoples from all five continents are: UNITED in the belief that peace is the essential condition for the survival and well-being of the human race, DETERMINED to promote peace and save succeeding generations from the scourge of war,

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OUTRAGED over the frequent resort to war in the settlement of disputes between nations,

Non-Governmental Organisations committed to the promotion of peace should be set up in all nations.

DISTURBED that militarists are preparing for more wars,

Public servants and professionals, particularly in the medical, legal, educational and scientific fields, must promote peace and campaign actively against war.

TROUBLED that use of armed force increases insecurity for all, and TERRIFIED that the possession of nuclear weapons and the imminent risk of nuclear war will lead to the annihilation of life on earth.

To achieve peace, we now declare that: Wars increasingly involve the killing of innocent people and are, therefore, abhorrent and criminal. Killings in war are as criminal as the killings within societies in times of peace.

Since killings in peace time are subject to the domestic law of crime, killings in war must likewise be subject to the international law of crimes. This should be so irrespective of whether these killings in war are authorised or permitted by domestic law.

All commercial, financial, industrial and scientific activities that aid and abet war should be criminalised.

All national leaders who initiate aggression must be subjected to the jurisdiction of the International Criminal Court.

All nations must strengthen the resolve to accept the purposes and principles of the United Nations Charter and institute methods to settle international disputes by peaceful means and to renounce war.

Armed force shall not be used except when authorised by a Resolution passed by twothirds majority of the total membership of the General Assembly of the United Nations.

All legislators and all members of Government must affirm their belief in peace and pledge to strive for peace. Political parties all over the world must include peace as one of their principal objectives. ii

The media must actively oppose war and the incitement to war and consciously promote the peaceful settlement of international disputes.

Entertainment media must cease to glorify war and violence and should instead cultivate the ethos of peace. All religious leaders must condemn war and promote peace.

To these ends the Forum resolves to establish a permanent Secretariat in Kuala Lumpur to: IMPLEMENT this Initiative, OPPOSE policies and programmes that incite war, and SEEK the cooperation of NGOs worldwide to achieve the goals of this Initiative.

The Initiative was signed by Tun Dr. Mahathir and 11 other international personalities, namely: Imam Feisal Abdul Rauf Prof Francis A. Boyle Dr. Helen Caldicott Prof Michel Chossudovsky Mr Denis J. Halliday Mr Hans-Christof Von Sponeck Dato’ Mukhriz Mahathir Dato’ Michael OK Yeoh Mr Matthias Chang Dr. Chandra Muzaffar Prof Shad Saleem Faruqi In the following year (June 2006), the Perdana Leadership Foundation organised another Peace Forum with a closed door session on the issue of “Criminalise War. Stop World War IV,” and subsequently a panel discussion on “Building An Action Plan for the Global Network for Peace.”

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In his opening speech at this Conference, Tun Dr. Mahathir reminded the participants that -

This handy pocket-size publication, intended to inform the general public of what our various Institutions under KLFCW would be doing in pursuit of our objective to criminalise war and to energise peace, contains the basic constitutional document establishing the Kuala Lumpur War Crimes Commission, the War Crimes Tribunal as well as other Institutions under the umbrella of KLFCW.

It is time we renounce killing masses of people in order to solve international disputes. It is time we renounce WAR! Defensive war would not be necessary in the absence of wars of aggression.

Trillions of dollars would be saved as nations scale down their war machines…

This important document is called the Charter of the Kuala Lumpur War Crimes Commission and Rules of Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal. It was signed by the Trustees of the Kuala Lumpur Foundation to th Criminalise War Inc on 6 June 2008 in Kuala Lumpur.

Unless war is made illegal the whole world will have to endure an endless state of war between the powerful and the weak. There would be no security for anyone whether involved or not involved. There would be no place in the world that would be safe. Instead of diminishing, instead of peace we are going to see endless escalating wars with ways of killing and destruction we cannot always anticipate or prepare for…

Part I of the document contains 15 Articles providing for the establishment of the Institutions (Article 1), objectives of the Commission (Article 2), seat of the Institutions (Article 3), legal status and power of the Commission and the Tribunal (Article 4), composition of the Commission (Article 5), the Tribunal (Article 6), jurisdiction of the Commission and the Tribunal (Article 7), crimes against peace (Article 8), crimes against humanity (Article 9), Genocide (Article 10), war crimes (Article 11), Legal Team (Article 12), the Secretariat (Article 13), financial matters (Article 14), and miscellaneous provisions (Article 15).

In February 2007, the Foundation organised an International Conference and Exhibition, themed “Expose War Crimes, Criminalise War” at the Dewan Merdeka, PWTC, Kuala Lumpur. It was attended by over 3000 people from all over the globe.

War is a crime. It is primitive and not in keeping with the stage of our civilisation. It is our bounden duty to make war illegitimate, to make war a crime.”

In one of the sessions at this International Conference, the participants heard a live testimony by Ali Shalah, one of the victims of torture at Abu Ghraib Prison in Iraq.

It was at the conclusion of this Conference that a decision was made for the establishment of a formal body in the form of the Kuala Lumpur Foundation to Criminalise War Inc (KLFCW), an entity incorporated under the laws of Malaysia, under which the Kuala Lumpur War Crimes Commission, the Kuala Lumpur War Crimes Tribunal and other supporting Institutions can be legally established and function.

Part II contains 35 Articles setting out in detail rules of procedure and evidence of the Tribunal. Minimum standards of fair procedure and evidence are provided for in Article 2, the charge to be preferred to an accused in Articles 3 to 5, service of the charge and trial dates in Articles 6 to 8, oral and documentary evidence and authorities in Articles 9 to 11, interlocutory applications and preliminary objections in Articles 12 to 13, case management in Article 14, mode of proceedings in Articles 15 to 31, verdict in Articles 32 to 34, and finally register of war criminals in Article 35.

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CHARTER OF THE KUALA LUMPUR FOUNDATION TO

Have agreed as follows:

CRIMINALISE WAR

PART 1 THE INSTITUTIONS

PREAMBLE

Article 1 Establishment of the Institutions

The Parties hereto, Conscious that grave crimes continue to threaten the peace, security and well-being of the world, Mindful that these crimes must not be allowed to go unpunished, Determined to bring to justice the perpetrators of these crimes and to prevent the repetition of such crimes in the future, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasising in this connection that nothing in this Charter shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to establish an independent War Crimes Tribunal with jurisdiction over the most serious crimes of concern to the international community as a whole, Resolved to guarantee lasting respect for and the enforcement of international justice, Recalling that the Kuala Lumpur Foundation to Criminalise War Incorporated (formerly iv

known as the Kuala Lumpur International Peace Foundation Incorporated), under its Statute IV, has provided for the establishment of the following institutions,

There shall hereby be established the Kuala Lumpur War Crimes Commission (“the Commission”), the Kuala Lumpur War Crimes Tribunal (“the Tribunal”), the Kuala Lumpur War Crimes Legal Team (“the Legal Team”) and the Kuala Lumpur War Crimes Secretariat (“the Secretariat”), whose functions and jurisdiction, respectively, shall be governed by the provisions of this Charter.

Article 2 Objectives of the Commission 1.

The general objectives of the Commission are to (i)

To receive and investigate complaints from victims of wars and armed conflicts in relation to crimes against peace, war crimes, crimes against humanity and other like offences as recognised under international law;

(ii) To put an end to all war crimes and crimes against humanity currently perpetrated by any government in any part of the globe; (iii) To bring war criminals of any nationality to justice; (iv) To prevent the recurrence of war crimes, crimes against peace, crimes against humanity, in the future.

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2.

The specific objectives of the Commission include the investigation of the following – (i)

3.

War crimes committed in Iraq;

Article 6 The Tribunal

(ii) War crimes committed in Palestine; (iii) War crimes committed in Afghanistan; (iv) War Crimes committed in Lebanon; (v) Other war crimes referred to the Commission.

1.

The Tribunal shall serve as the judicial arm of KLFCW.

2.

The Tribunal shall comprise a body of eminent persons with legal qualifications, regardless of their nationality, not exceeding 15 and appointed by the Board of Trustees of the Kuala Lumpur Foundation to Criminalise War

3.

The Deputy Chairman of KLFCW shall be the President of the Tribunal and in that capacity, he shall have a casting vote.

4.

Every member of the Tribunal shall, before taking up his duties, make solemn declaration that he will exercise his powers impartially and conscientiously.

5.

A quorum of five Judges shall suffice to constitute the Tribunal in the event that the President is indisposed or unable to discharge his duties, the judges shall elect from among themselves an Acting President.

6.

The Tribunal shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary.

7.

The Tribunal shall make its own rules for carrying out its functions including holding case management proceedings.

In particular, it shall lay down rules of procedure and evidence.

8.

The official language of the Tribunal shall be English. The Tribunal shall, at the request of any party, authorise a language other than English to be used by that party.

Article 3 Seat of the Institutions 1.

The seat of the Institutions shall be in Kuala Lumpur, Malaysia.

2.

The Commission, the Legal Team and the Secretariat shall operate from their headquarters in Kuala Lumpur, but the Tribunal may sit anywhere else outside Kuala Lumpur, whenever it considers it necessary or expedient to do so.

Article 4 Legal status and powers of the Commission & the Tribunal

The Commission and the Tribunal shall have international legal personality. They shall also have such legal capacity as may be necessary for the exercise of their functions and the fulfillment of their purposes.

Article 5 Composition of the Commission 1.

2.

The Commission shall consist of not more than 11 eminent persons, referred to as “the Commissioners”, appointed by the Board of Trustees of the Kuala Lumpur Foundation to Criminalise War (hereinafter referred to as “KLFCW”).

The Commissioners may be of any nationality but need not possess any legal qualification.

When discharging their duties in relation to Article 2 of this Charter, a quorum of five (5) members shall suffice to constitute the Commission.

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9.

The hearing by the Tribunal shall be public, unless the Tribunal shall decide otherwise or unless the parties demand that the public be not admitted.

cases shall only be made through a firm of Solicitors. (e) In the exercise of its advisory functions the Tribunal shall further be guided by the provisions of the present Charter and Rules of Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal which apply in contentious cases to the extent to which they recognise them to be applicable.

Article 7 Jurisdiction of the Commission and the Tribunal 1.

The Commission and the Tribunal shall have jurisdiction under this Chapter in respect of the following crimes: (a) (b) (c) (d)

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Crimes against peace; Crimes against humanity; Genocide; War crimes.

(a) The Tribunal may, in its absolute discretion, give an advisory opinion on any question of International Law of substantial public importance at the request of the War Crimes Commission, the Legal Team, the parties before the Tribunal or any one or more of the amici curiae appointed by the Tribunal in any particular case. (b) Questions upon which the advisory opinion of the Tribunal is asked shall be laid before the Tribunal by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied, where necessary, by all documents likely to throw light upon the question. (c) If the Tribunal agrees to comply with such a request, the Registrar shall forthwith give notice of the request for an advisory opinion to all concerned who shall be entitled to make written submissions before the Tribunal. (d) Unless the request for an advisory opinion is from the Commission or the Legal Team, requests in other

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Article 8 Crimes against peace 1.

A crime against peace refers to planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

Article 9 Crimes against humanity

For the purpose of this Charter, “crime against humanity� means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) (b) (c) (d)

Murder; Extermination; Enslavement; Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;

CHARTER OF THE KUALA LUMPUR WAR CRIMES COMMISSION

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Tribunal; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health; (l) Imposition of unjust sanctions and blockade to impoverish civilian populations.

2.

For the purpose of this Charter, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i)

Wilful killing;

(ii)

Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health; (iv)

Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v)

Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi)

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

Article 10 Genocide For the purpose of this Charter, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Article 11 War crimes 1.

The Tribunal shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

(vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts: (i)

Intentionally directing attacks against the civilian population as such or against individual

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civilians not taking direct part in hostilities; (ii)

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflicts; (iv)

(v)

(vi)

of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii) Making improper use of a flag of truce, of the flag or

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix)

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x)

Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi)

Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii) Declaring that no quarters will be given;

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(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflicts;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi)Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities; (xxvii ) Destruction, pillage and spoilation of the economies of countries under military occupation.

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(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i)

Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii)

Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflicts; (iv)

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v)

Pillaging a town or place, even when taken by assault;

(vi)

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions;

(iii) Taking of hostages; (iv)

The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable.

(d) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

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(i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)

Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the

(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the

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conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix)

functions and duties assigned to it by the Board of Trustees of KLFCW, namely – (a) The Prosecution Division (prosecuting offenders before the Tribunal);

Killing or wounding treacherously a combatant adversary;

(x)

Declaring that no quarters will be given;

(xi)

Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

(b) The Defence Division (providing legal aid to accused, if such aid is requested); (c) The Victims Unit Division (looking after the interest of victims & their dependants during the course of the proceedings before the Tribunal).

Article 13 The Secretariat 1.

There shall be established a Secretariat to assist KLFCW and its other Institutions in all their administrative functions. The Secretariat shall comprise a SecretaryGeneral, the Deputy Secretary-General and such other officers and staff as the Board of Trustees of the KLFCW shall determine.

2.

The Secretary-General shall be the chief administrative officer of KLFCW and all its Institutions. He shall also perform such other functions as are entrusted to him by the Board of Trustees of KLFCW. He shall make an annual report to the Board of Trustees of KLFCW on the work of KLFCW and all its Institutions.

3.

The Secretary-General shall provide for the Secretariat’s own procedure in the discharge of its functions and duties.

Article 12 Legal Team 1.

2.

3.

The Legal Team shall initially comprise of five Malaysian lawyers, appointed by the Board of Trustees of KLFCW. The Board of Trustees of KLFCW shall increase the membership of the Legal Team by appointing additional lawyers from Malaysia and abroad, from time to time as and when it deems it necessary to do so.

The Legal Team shall as soon as practicable establish 3 distinct divisions, each responsible for discharging the

Article 14 Financial matters The Board of Trustees of KLFCW shall determine the allowances and disbursements payable to its members, witnesses and all other officials, staff and persons involved in the work of KLFCW and its other Institutions.

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must be expressed clearly and exactly and supported by sufficient and relevant grounds and facts;

Article 15 Miscellaneous provisions The Board of Trustees of KLFCW may, from time to time, make provisions for any other matter that it deems necessary to enable it to carry out its work more effectively in furtherance of the objectives spelt out in this Charter.

PART 2 RULES OF PROCEDURE AND EVIDENCE OF THE TRIBUNAL

(d) Every person charged must be accorded a right of hearing (whether oral or written) and the fullest opportunity to answer the charge(s) must be accorded; (e) Every person charged must be informed of his right to legal representation of his choice; (f)

CHAPTER I GENERAL Article 1 The Tribunal shall at their first meeting establish and adopt rules of procedure and evidence in accordance with the minimum standards and guidelines established by these Rules. The Tribunal shall be mindful of their function as a tribunal of conscience and shall thereby act on fair, transparent and just procedure.

The proceedings shall at all times respect human dignity and shall only act on the basis of proven facts established on relevant evidence after full and fair proceedings;

(g) A full and complete documentary record of the proceedings shall be kept and made available to every person charged and the public; (h) The Tribunal shall provide a full reasoned decision based on the relevant evidence found to be admissible and fair; (i)

The burden of proof shall be on the basis of beyond reasonable doubt;

(j)

The minimum standards of fair procedure and evidence shall comprise the following:

The onus of proof shall be on the prosecuting team throughout the proceedings;

(a) Every person against whom a petition or charge is made shall be presumed innocent until his culpability is established on the evidence;

(k) In the event of a lacuna in the rules, the Tribunal shall adopt rules which comply with international standards of fairness and justice.

Article 2

(b) The proceedings shall be in public unless circumstances arise which require the proceedings to be continued in private on the basis of sound reasons (e.g. to protect the identity and evidence of victims of sexual offences, or otherwise to guarantee the personal safety of the witness );

CHAPTER II THE CHARGE Article 3 The Charge shall state the offence with which the person is charged before the Tribunal.

(c) Every person charged must be informed of the exact charge(s) against him which xii

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Article 4

Article 8

The offence must be positively and precisely stated so that the person charged may know with certainty the charged offence.

Upon receipt of the Charge, the Tribunal shall decide on the dates for the commencement of proceedings which shall not be less than two months from the date of filing of the Charges with the Registrar of the Tribunal.

Article 5 The Charge shall contain sufficient particulars as to time and place of the alleged offence(s) and the person(s) against whom the offence(s) was or were committed as are reasonably sufficient to give the accused notice and a reasonable and fair opportunity to respond.

CHAPTER III SERVICE OF THE CHARGE & TRIAL DATES Article 6 (a) The Registrar of the Tribunal shall cause to be served on the accused a copy of the Charge or Charges before the commencement of any proceedings of the Tribunal. b)

If the Charge involves a Sovereign State, a current head of state/government or a former head of state/government, service of a copy thereof to any relevant Embassy or High Commission shall suffice and the accused is deemed to have been served.

(c) In all other cases, such as military commanders (serving or retired) and government officials, service of the charge shall be deemed effected if sent to the last known office of the accused.

Article 7 Each Tribunal member shall be supplied a copy of the Charge.

CHAPTER IV ORAL & DOCUMENTARY EVIDENCE AND AUTHORITIES Article 9 (a) The Prosecution Team shall submit their authorities and outline of the Prosecution’s submission not later than fourteen (14) days from the date of the commencement of the proceedings and the Defence team shall submit their authorities not later than seven (7) days from the date of the commencement of the proceedings of the Tribunal. (b)

The evidence of witnesses shall preferably be in the form of a written testimony/affidavit with exhibits of the relevant documentary and photographic evidence.

Article 10

The evidence of witnesses shall be by way of Witness Statements in the form of an affidavit. The witnesses are required to file Witness Statements and such statements shall be read by the witnesses at the trial.

The filing of such witness statements shall not preclude a witness from making further oral testimony at the trial if circumstances necessitate such additional evidence.

Article 11 (a) The accused person shall also file witness statements prior to the commencement of proceedings of the tribunal.

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(b) Public documents which are records of sovereign authorities, of public officers, legislative, judicial, executive, municipal and military, of official bodies, Courts and Tribunals of any country and of an International Organisation, shall be accepted as documentary evidence, inclusive of electronic records of such documents. The Tribunal shall presume unless the contrary is proved that the electronic record has not been altered.

CHAPTER V INTERLOCUTORY APPLICATIONS & PRELIMINARY OBJECTIONS Article 12 All interlocutory applications including applications to recuse a Judge of the Tribunal must be filed with the Registrar not later than ten (10) days prior to the commencement of the proceedings, supported by cogent evidence.

Article 13 Notice of any preliminary objection to the jurisdiction of the Tribunal must be filed not later than ten (10) days prior to the commencement of the proceedings.

CHAPTER VI CASE MANAGEMENT Article 14 Case management shall be held not later than seven (7) days of the commencement of the proceedings, to be chaired by the President, or in his absence, by any Judge of the Tribunal nominated by the President.

CHAPTER VII MODE OF PROCEEDINGS Article 15 The Tribunal proceedings shall commence with a reading of the Charge which shall be explained to the accused in person if he is present.

Article 16 If the accused is not personally present before the Tribunal, the Tribunal shall inquire into the circumstances of his absence. The Tribunal shall be aided by the Prosecution Team in this regard, and will need to be satisfied on the evidence that the accused has been served with the charge or otherwise been sufficiently informed of the commencement of the proceedings.

Article 17 The reason(s) for the absence of the accused shall be duly recorded and shall form part of the official record of the proceedings.

Article 18 If the Tribunal is satisfied that the accused is for any reason unwilling to appear in person or unwilling to appoint counsel to represent him before the Tribunal, the Tribunal shall appoint one or more amici curiae from the Defence Division of the Legal Team to assist the Tribunal by presenting an unbiased assessment of the charge and evidence against the accused.

Article 19 The amicus curiae appointed shall be a person independent of the Prosecuting Team.

Article 20 The Prosecution Team shall begin by making an opening address by outlining the case against the accused.

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Article 21

Article 28

After the conclusion of the opening address, the Tribunal shall receive the oral testimony of the witnesses or their respective written testimony where filed and made available.

Oral evidence through video conference may be permitted by the Tribunal.

The accused or his counsel or the amicus curiae, as the case may be, may submit no case to answer at the conclusion of the case of the Prosecution Team.

Article 22

In the event the Tribunal decides that there is a prima facie against the accused, the Tribunal shall proceed to receive evidence from the accused or his witnesses where present and available, or in absence to hear submissions from the amicus curiae.

The conduct of examination of witnesses shall be adversarial.

Article 23 The accused or his counsel shall have the right to cross-examine each witness.

Article 24 Where the accused is not present or no counsel has been appointed by him, the amicus curiae shall cross-examine the witness, followed by a re-examination of the witness by the Prosecution Team.

Article 29

Article 30 The Prosecution Team shall thereafter close the case, followed by a reply from the accused or his counsel, where present or available.

Article 31

Article 25

In the absence of the accused or his counsel, the amicus curiae shall assist the Tribunal by replying to the Prosecution Team.

Members of the Tribunal retain the power to examine any of the witnesses at any time in the interest of justice.

CHAPTER VIII VERDICT

Article 26

Article 32

The examination of witnesses shall be subject to rules of relevancy and admissibility, and as a general rule, primary evidence shall be introduced.

The Tribunal must be satisfied beyond reasonable doubt that the charge has been proven, and shall provide a full and reasoned written verdict after adjournment and deliberation.

Article 27 Secondary and hearsay evidence may be admissible in the interest of justice in particular circumstances but the Tribunal shall accord secondary and hearsay evidence less cogency and shall decide finally on the total weight of the evidence with due regard being given to primary evidence.

Article 33 Where the Tribunal is not satisfied that the case has not been proven against the accused beyond reasonable doubt, it may recommend, subject to the principles of double jeopardy, that further investigations be carried out by the Commission if the Tribunal is of the unanimous view that this

RULES OF PROCEDURE AND EVIDENCE OF THE KUALA LUMPUR WAR CRIMES TRIBUNAL xv

course of action will serve the ends of justice and conscience.

CHAPTER IX REGISTER OF WAR CRIMINALS

Article 34

Article 35

As a tribunal of conscience, a verdict of the Tribunal shall be merely declaratory of the law. The Tribunal may recommend to the Commission to submit its finding to the International Criminal Court or any other international organisations for further action.

Where a charge has been proven before the Tribunal, the Tribunal shall recommend to the Commission that the name of the person adjudged guilty of war crimes be included in the Commission’s Register of War Criminals and publicised accordingly.

IN FAITH WHEREOF the Trustees of the Board of KLFCW have signed the present Charter of the Kuala Lumpur Foundation to Criminalise War. DONE at the city of Kuala Lumpur the sixth day of June, two thousand and eight.

.....................................................

Tun Dr. Mahathir Mohamad

.....................................................

Dato’ Haji Abdul Kadir bin Sulaiman

.....................................................

Tunku Dato’ Dr. Hjh Sofiah Jewa

.....................................................

Dato’ Dr. Yaacob Hussain Merican

.....................................................

Mohamad Ariff bin Md Yusof

.....................................................

Zainur bin Zakaria

xvi CHARTER OF THE KUALA LUMPUR WAR CRIMES COMMISSION