Malaysia heads to the ICJ for the Palestinians (again): Does it matter?

KUALA LUMPUR: On 19-26 February 2024, the ICJ will hear 52 UN Member States and three international organisations over the UN General Assembly’s request for advisory opinion on the legality of Israel’s 56-year occupation of Palestine. Malaysia will be one of those 52 States, scheduled to make its statement on 22 February.

Since the ICJ orders on 24 January, the death toll in Gaza has only continued, hunger and disease spreading, and risks of regionalised conflict heightened. Lifesaving UNRWA work could now end by March due to the funding freeze.

UN and legal experts say Israel appears to only have violated the ICJ orders, far from reporting compliance due 23 February. So, will this ICJ opinion make a difference?

Malaysia went to the ICJ in apparently similar case over Palestine almost 20 years ago too, and things seems to have only worsened, so why should Malaysia invest so much now?

How this Israel Occupation case relates to South Africa v Israel (2023)

It is important to remember firstly that the current ICJ advisory case was made:

(1) back in January 2023, and

(2) by the UN General Assembly through a December 2022 resolution.

In other words, this request was filed almost a year before South Africa’s case, and it could not have been filed by any State because only UN entities can legally request for advisory opinion from the ICJ. In terms of court procedure, both cases now run in parallel at the ICJ.

Meanwhile, South Africa’s case against Israel is a contentious case concerning States’ obligations under the Genocide Convention. Following the ICJ’s finding of plausible genocide against Palestinians in Gaza, Spain and Belgium are among those who have suspended arms transfers to Israel.

A Dutch court has ordered the government to suspend export of F-35 jet parts to Israel. A US court has found that the siege of Gaza plausibly falls within the prohibition of genocide, and the US President must therefore review his unwavering support to Israel for it.

The ICJ has dismissed South Africa’s latest request for additional provisional measures, but stressed Israel’s duty to comply and for the orders to be effectively and immediately implemented, as the Rafah operations would ‘exponentially increase the humanitarian nightmare.’

Nicaragua has also become the first country seeking to intervene in the South Africa case, interestingly per Article 62 ICJ Statute (i.e., based on legal interest in the ICJ’s final decision) instead of under Article 63 (i.e., based on legal interest as a state party in how the ICJ interprets the treaty).

One cannot help but wonder if Malaysia would also intervene in this case, particularly in terms of Malaysia’s legal obligations over Palestinian refugees (and other refugees fleeing plausible genocides) in Malaysia.

How this Israel Occupation case compares to the Israel Wall advisory opinion [2004]

In exercising its advisory function, the ICJ gives its opinion to address the specific legal question(s). The current request is framed on two questions around the legality and legal impacts of:

(a) Israel’s ongoing violation of the Palestinians’ right to self-determination through the occupation, settlement and annexation of Palestinian territory since 1967;

and (b) related Israeli policies and practices affect the legal status of the occupation, all other States and the UN.

These questions are framed based on the lessons and outcomes of the various UN efforts, including the UN Commission of Inquiry, to give effect to the Wall opinion, compel Israel’s action, and enable settlement of the broader peace process.

Thousands of relevant UN resolutions, reports and supporting documents reflecting all this are now part of the case dossier at the ICJ.

Compared to the Wall opinion that particularly concerned the security barrier wall Israel built, the scale and scope of the present ICJ advisory case therefore is much wider. States’ participation is already unprecedented at the ICJ: 57 States have filed written statements and 52 will also submit orally.

Contrastingly, in the Chagos opinion [2019], where the right to self-determination was last discussed and the ICJ found the UK responsible, 31 UN Member States filed written statements and 21 made oral statements. Malaysia was only one of the 45 written statements and 12 oral statements in the Wall advisory proceedings.

How this Israel Occupation advisory case is a potential game-changer

ICJ advisory opinions are not legally binding, but they are authoritative. The Court itself does not distinguish between its judgments and advisory opinions when referring to and aligning with its own decisions. As the UN principal judicial organ, ICJ advisory opinions are also referred by other international tribunals in their decision-making.

Advisory opinions have shaped international law and influenced States’ narratives and positioning. In the Wall opinion, the ICJ recognised (despite Israel’s persistent claims otherwise):

(a) the situation in the Occupied Palestine Territory is one of occupation

(b) international humanitarian law (IHL) and human rights law (IHRL), apply in this situation

(c) the Palestinian people’s right to self-determination

(d) all States have an obligation to respect this right

(e) Israel violated this right of the Palestinians by constructing the wall

(f) Israel is an occupying power, and thus cannot claim self-defence to justify this violation

The ICC Prosecutor later referred to this opinion to establish ICC jurisdiction and initiate investigation into genocide, war crimes, and crimes against humanity committed in Palestine.

The current ICJ advisory also builds on the Wall opinion, as more Israeli settlements have since been built, Palestinian territory annexed, and systematic measures are taken to prolong if not permanently occupy Gaza, West Bank, and East Jerusalem. Whereas international law fundamentally prohibits the use of force (jus ad bellum), i.e. war.

Even when States do resort to war, occupation arises and IHL applies (jus in bello), IHL particularly under the Fourth Geneva Convention cannot apply to prolong such war and occupation, nor undermine the overarching prohibition of war. The questions in the request are geared for the ICJ to first clarify this position.

Therefore, any ICJ finding that Israel’s 56-year occupation is illegal would be pivotal. Even if it can’t effectively force Israel to withdraw on the ground, this opinion could legally break the impasse in the peace negotiations and guide the settlement of Palestinian statehood.

Because South Africa’s allegations of Israel’s genocidal acts are placed in the context of Israel’s apartheid and occupation, and this ICJ opinion is heard as the genocide in Gaza continue to unfold, the outcomes of both cases will substantively influence each other. As the Wall opinion did before, this upcoming ICJ opinion would carry weight in the ongoing ICC investigation.

As Hamas and other armed groups are also party to the conflicts within it, and individual human rights have also been impacted by various foreign companies over the years, this ICJ opinion could further clarify the rights and responsibilities of non-state and private actors in similar contexts of occupation.

More broadly, this ICJ opinion could add pressure on other relevant States to end other situations of long occupation, such as in Crimea, Cyprus, and Western Sahara. Overall, it would have implications on state and individual criminal responsibility under international law.

Indeed, this Israeli Occupation advisory proceedings matters. It matters because the Palestinians believe it matters for their freedom, justice and remedy after over half-century of oppression. It matters to the rules-based international order, and almost one-third of the world is taking part in the process.

It matters as an opportunity for Malaysia not only to continue showing up for international lawmaking, but also for humanity.

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Aisya Abdul Rahman is an independent legal consultant. She is experienced in advising, engaging, and training state, civil society, and humanitarian actors on applications of international humanitarian and human rights law. She has practiced at the Malaysian Bar. The views expressed here are entirely her own.