Ceasefire for Gaza: Malaysia's gambit

Raising their voices: Participants of the ‘Action Action Siege For Palestine’ picket gathering during the New Year countdown near the United States Embassy in Jalan Tun Razak — SHAARI CHEMAT/The Star

MALAYSIA has never remained silent about Israel’s occupation of Gaza. We have been making staunch protests against the Zionist regime’s apartheid occupation for decades. But the latest Israeli military operation that began in October last year has stoked the fires of opposition much higher in this country.

Apart from the ongoing economic boycotts, Malaysia is looking into working its diplomatic channels to ensure more action is taken against Israel, which remains unrepentant due to formidable backing from some of its Western allies.

Recently, another advocate for the Palestinian cause, South Africa, managed to convince the International Court of Justice (ICJ) that Israel’s actions in Gaza are indeed genocidal.

Additionally, Malaysia, one of the endorsers of South Africa’s case against Israel under the 1948 Genocide Convention, had on Feb 22 submitted its oral submission at the ICJ’s open hearing on another case.

The oral submission was part of the ICJ’s request for Advisory Opinion, which stems from the UN General Assembly’s Resolution 77/247 adopted on Dec 30, 2022 and co-sponsored by Malaysia.

Malaysia’s Foreign Minister Datuk Seri Mohamad Hasan Mohamad took the stage and said Israel must stop all related “policies and practices” and immediately withdraw from Occupied Palestinian Territories (OPT).

Foreign Minister Datuk Seri Mohamad Hasan said that the International Court of Justice ruling was an important step in “safeguarding humanity and the sanctity of international law”.  — AgenciesForeign Minister Datuk Seri Mohamad Hasan said that the International Court of Justice ruling was an important step in “safeguarding humanity and the sanctity of international law”. — Agencies

Experts also suggest that Malaysia, among others, can also invoke the Genocide Convention to bring greater pressure to bear against Israel to stop its atrocities in Gaza.

According to prominent Malaysian lawyer Nizam Bashir, the Convention establishes accountability for members to prevent and penalise crimes of genocide.

Hauling up the oppressors

As Malaysia is a party to the Genocide Convention, it carries weight in opposing the Israeli occupation, Nizam says.

He explains that Malaysia can invoke the Convention against the Zionist regime – suggesting that Malaysia can file a new action against Israel, other than what is being done by South Africa.

“Yes. The Convention imposes certain obligations on state parties to take measures to prevent and punish the crime of genocide, whether committed in times of peace or in times of war.

“Malaysia became a party to the Convention in 1994 while Israel became a party to the Convention in 1950.”

Nizam suggests that while it will remain an arduous battle to punish Israel for its atrocities concretely, the measure can help to pile pressure against the ongoing acts of genocide.

“While the crime of genocide is hard to prove, any proceedings premised on the Convention will highlight atrocities committed by Israel and shine a light on any potential abuses it may be trying to perpetrate against the Palestinian people.

“Ultimately, Israel is being held to account for its actions and that is the aim of the present proceedings being brought against it.”

Universiti Teknologi Mara’s international law expert Dr Ummi Hani Maso’od says three aspects need to be determined to see if Malaysia, as a state party to the Convention, can invoke it against Israel.

“[The first aspect will be] Is Israel occupying the Gaza Strip? Israel claimed that it no longer occupied Gaza when it withdrew its military in 2005.

“The law defines occupation as a territory placed under the authority of a hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

However, Ummi says many international organisations and international tribunals assert that Israel has exercised control over Gaza since 1967.

“Israel maintains effective control even without the presence of its armed forces. It is important to determine the status of Israel as an occupying power to assess the legal obligations Israel owes to Gaza.

“Some scholars argue that the recent request for an advisory opinion on the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, will address this issue.”

The law and convention

The second aspect would on the law governing occupation.

Ummi says the applicable law in occupation entails the international humanitarian law (IHL), which is a set of rules that aim to limit the effects of armed conflict; human rights law, including the Genocide Convention; law on the use of force, sovereignty and self-determination (illegal occupation); and the law on state responsibility.

“In the Genocide Convention Case [South Africa vs Israel], Israel argued that the IHL should govern the conflict and not the Genocide Convention, as the situation is urban warfare.

“Civilian casualties may be an unintended consequence of the lawful use of force against military objects and do not constitute genocidal acts.

“However, the ICJ rejected this argument. The ICJ held that the facts and circumstances are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.

The third aspect will be on discerning the role of the Genocide Convention in the Occupied Palestinian Territory.

“Genocide is a vehicle to attain political goals – for instance, the removal of certain groups from certain territories. The Genocide Convention is intended to protect groups from genocide.

“All State parties to the Geno-cide Convention have a common interest in ensuring the prevention, suppression and punishment of genocide. Israel ratified the Convention on March 9, 1950.”

She says Israel owes an obligation to all other state parties to comply with the Genocide Convention.

“Israel has to prevent and punish the acts of genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempt to commit genocide, and complicity in genocide.

“Any state party is entitled to invoke the responsibility of another state party for an alleged breach of its obligation.

“They can exercise their universal jurisdiction to punish the perpetrators.”

Raising a voice

At the same time, will it be possible for Malaysia to testify against Israel on behalf of South Africa in its genocide case at the ICJ?

As of now, Prime Minister Datuk Seri Anwar Ibrahim has only said that Malaysia will continue to monitor and use all available channels to condemn the attacks by the Israeli government on the Palestinians.

Similarly, Wisma Putra has declined to comment if Malaysia will be pursuing any other legal actions on the international stage against Israel.

Malaysia will continue to pursue diplomatic channels to advocate and push for solutions to the Palestinian humanitarian crisis, Wisma Putra stresses.

“It is both our legal and moral duty to firmly strive for a Palestinian statehood – continuously making our case to the global community, especially on multilateral platforms.

“Be it at the United Nations, the Organisation of Islamic Coopera-tion, the Asia-Pacific Economic Cooperation, and Asean, Malaysia must continue to be vocal, without fear or favour, about the rights of the Palestinian people.

“In advocating for solutions, Malaysia must use all available platforms to build a coalition of the willing.

“We must engage in robust diplomacy, not shying away from holding international powers accountable, and rallying the global community towards a humane and principled approach to the Palestinian issue,” it said in a statement.

Still, many pro-Palestinian activists are urging Malaysia to take a stronger legal stance and action against Israel.

As Nizam puts it, every brick that is placed for Palestine will make it more difficult for injustices to be perpetrated against it.

“As Archbishop Desmond Tutu once put it colourfully, ‘If you are neutral in situations of injustice, you have chosen the side of the oppressor.

“‘If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality’.”

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