[COLUMNIST] Malaysia's legal approach to Gaza (and other conflicts) - Is ICC the only way forward?

AFTER two weeks, International Court of Justice (ICJ) is expected to decide South Africa’s application for provisional measures on Friday (26 January). To recall, South Africa is seeking (among others) an immediate ceasefire in Gaza because there is a serious risk of genocide, and Israel is responsible for committing, inciting and/or failing to prevent it. Will the ICJ order for all nine provisional measures (emergency orders) requested? Or will the ICJ reject them all? Or a few will be allowed, with some modifications?

Either way, the ICJ’s decision will have far-reaching consequences. Legal, political, and economic, even at this early stage of the proceedings. Order in favour of South Africa, the ICJ agrees genocide is taking place and the ICJ must step in. Order in favour of Israel, the ICJ will be seen as ineffective when a genocide is unfolding before us. But the ICJ has ordered similar provisional measures before, such as against Myanmar in 2021, and likely to do so again here. The concern is, like Myanmar, Israel might not comply and would have the support of its veto allies if the matter goes to the UN Security Council. However, Israel’s failure to comply will come at a cost, politically and legally. With 125 countries already supporting South Africa’s ICJ application, Israel risks further isolation and in the General Assembly. Failure to legally comply will add up to the ICJ’s final judgment on merits. Israel’s strongest supporters including the US would also be legally forced to stop transferring weapons because that would amount to complicity to the genocide. The UK, Germany, and Canada even more so as parties to the Arms Trade Treaty. This is why experts say international law and the global order are now at stake.

Over the years, Malaysia has done a lot to support the Palestinians. But a lot of gaps and misinformation have also surfaced in recent weeks, particularly around the legal issues. In the local discourse, even by influential figures. So, let’s clear up three main points and see what else Malaysia could consider doing, in response to Gaza and other situations. Beyond the rhetoric. In the short and longer term. After all, isn’t this really a question of Malaysia’s responsibility as a state and conscience as a member of the international community?

The cases at the ICJ

ICJ cases are different from the International Criminal Court (ICC), though they can run in parallel. The ICJ only deals with States’ responsibility under international law, not individual criminal responsibility (more on the ICC later). This also means that the ICJ does not have jurisdiction over non-state armed groups. In addition to legal disputes between States (“contentious cases”), the ICJ also gives advisory opinions when requested by one of the five UN principal organs and 16 UN specialised agencies. ICJ decisions are legally binding on the States party to the case and States intervening. This obligation is rooted in States’ general undertaking to comply with the ICJ’s decision when they ratify the UN Charter. For other States, ICJ decisions may be binding if it gives rise to other obligations, such as not to be complicit in genocide under the Genocide Convention, nor assist another State in committing an internationally wrongful act under the International Law Commission Articles on State Responsibility.

South Africa v Israel (2023) is one such contentious case at the ICJ. It is significant in the political and historical context of the Israel-Palestine conflict, but it is by no means the first case of its kind at the ICJ. In 2019, The Gambia filed a similar application against Myanmar over the Rohingyas in Rakhine state. The Gambia and South Africa are not parties to each conflict, but the premise for them to file these cases is the same. The Genocide Convention requires all State Parties not only to avoid committing genocide themselves, but also to prevent and punish genocide committed by other State Parties. In addition, all States have an obligation owed towards all (“erga omnes”) to respect overarching principles of customary international law (“peremptory norms” or jus cogens). One of these peremptory norms is the prohibition of genocide, the worst crime against humanity. Legal standing based on erga omnes obligations follows from the ICJ’s earlier decision in Belgium v Senegal (2009), which relates to the prohibition of torture. In 2021, the ICJ provisionally ordered Myanmar to prevent and direct its security forces not to commit genocide against the Rohingyas. In addition to The Gambia’s request, the Court also ordered preservation of all relevant evidence until the Court finally decides whether there is genocide and Myanmar is responsible.

Ukraine v Russia (2022) and Bosnia-Herzegovina v Serbia (1993) are the only other two genocide cases filed at the ICJ. Compared to the cases against Myanmar and Israel, these were filed by the aggrieved States party to each conflict. Russia did not even attend hearing, and in March 2022, the ICJ ordered the provisional measures against Russia. The case and the conflict continue, with 32 States now intervening, which signal both Russia’s failure to comply and increasing political isolation. In 2007, the Court held that Serbia failed to prevent the Srebrenica genocide but did not commit it. No State has ever been held responsible by the ICJ for committing genocide (so far). The legal standard to prove intent to commit genocide is very high, but clearly dehumanising statements (e.g., “human animals”) by the highest state leadership and intentional starvation could be enough to meet this standard.

South Africa’s and The Gambia’s cases at the ICJ only relates to the Genocide Convention. This means that there is still a case for the serious violations of international humanitarian law (IHL) that have been committed: from the killing of civilians and cutting access to food, water, and humanitarian aid; to indiscriminate bombings and disproportionate attacks against hospitals, schools, places of worship, and cultural sites. Under IHL, Israel and Myanmar would also have a constant care obligation, i.e. to proactively spare civilian population, individuals, and objects when conducting military operations. As the occupying power, Israel do not have the right to self-defence against civilians under its control under the UN Charter, but it has specific obligations over them under the Fourth Geneva Convention 1949. Common Article 1 Geneva Conventions 1949 requires State Parties to respect and ensure respect for IHL in all circumstances. There is a long debate on whether this obligation has become erga omnes, but it is less disputed that States have a right (i.e. can choose) to hold another State responsible for serious IHL violations. The ICJ has dealt with Common Article 1 questions in cases such as Nicaragua v USA (1986). The Geneva Conventions of 1949 are universally ratified.

In the broader context of Israel’s 56-year occupation, another possible ICJ case is for the breach of the Palestinians’ right to self-determination (i.e. right to exist as a people). The erga omnes obligation for all States to respect this right is established under international law. It is the cornerstone principle for decolonisation. The ICJ has dealt with the right to self-determination in many cases. In the Wall Advisory Opinion (2004), the Court specifically recognised the Palestinian people’s right to self-determination and held that Israel’s construction of a wall in the Occupied Territories was in breach of that right. Indonesia is now reportedly taking the lead at the General Assembly for another ICJ advisory opinion in the context of this right of the Palestinians against recent events. Malaysia will now support this action too. This is commendable. In any case, ICJ’s advisory opinions are highly persuasive, but not legally binding.

Therefore, in addition to intervening in the three ongoing genocide cases, Malaysia could explore initiating these cases at the ICJ. Inevitably, they all entail significant political risk, legal expertise, and public resources. Therefore, serious consideration is needed. Because all of this should be rooted in shared morality and humanity, any compromises however cannot be seen as motivated by race, religion, or colour.

Domestically, it might be worth rethinking State positions regarding peremptory norms, such as on the prohibition of torture (e.g., Leticia Bosman v PP [2020]). Erga omnes obligations require external and internal State compliance. Not signing treaties related to these norms does not mean that Malaysia must not respect them. Implementation of customary international law here is not subject to the dualism doctrine.

At the very minimum, criminal law terms like “accused”, “charge”, “indict”, “guilty”, and “sentence” should no longer be used when referring to ICJ cases. This usage is legally inaccurate and only perpetuate confusion.

Malaysia’s right to intervene at the ICJ and reservation to the Genocide Convention

Malaysia became the first country in the world to declare support for South Africa’s case on 2 January. Malaysia also expressed similar support for The Gambia’s case in 2020. These declarations of support seem to imply that there are no longer regarding Malaysia’s reservation to the Genocide Convention impeding Malaysia from intervening at the ICJ.

To be clear, there is no correlation between the three. Firstly, Malaysia’s reservation, which is legal, must be differentiated from its declarations of support, which are political. These declarations do not amount to Malaysia’s intervention nor would influence the ICJ. Secondly, Malaysia’s reservation is irrelevant in the present context. The scope of Malaysia’s reservation only (a) requires Malaysia’s prior consent to ICJ jurisdiction, and (b) if the genocide case is made against Malaysia. Malaysia would already have consented if it decides to intervene, and the three ongoing genocide cases are not against Malaysia. The legality of this reservation itself is a separate discussion, but for now nothing appears to prevent Malaysia from intervening. Incidentally, the ICJ’s Reservations advisory opinion (1951) is very useful to interpret the Genocide Convention but not legally binding. Least of all to Malaysia who had not been independent nor a UN Member State when this ICJ opinion was given.

The case at the ICC and Malaysia’s universal jurisdiction

Reacting to the atrocities committed in Gaza, Malaysians have made informal representations to the ICC Prosecutor to issue arrest warrants against the Israeli Prime Minister. The difficulty with this is that: (a) neither Malaysia nor Israel is currently party to the Rome Statute, and (b) the representation was unofficial (not through government channels). The ICC is only legally mandated to act in situations where serious international crimes were: (a) committed by a State Party’s national, in a State Party’s territory, or in a State that has accepted ICC jurisdiction; or (b) upon a UN Security Council referral. Based on this mandate, and because Palestine is party to the Rome Statute, the ICC Prosecutor has been investigating, since 2021, serious international crimes committed in Gaza and West Bank by individual Israel and Hamas officials (as well as other relevant individuals) since 2014.

This lack of ICC standing has recently renewed calls for Malaysia to (re) ratify the Rome Statute. This call may be justified, considering what seemed to underpin the decision in 2019 was a misunderstanding over nuances of command responsibility under international law. For completeness of this ‘lesson learned’, it is worth recalling that the ICC only prosecutes and try individuals responsible for genocide, war crimes, crimes against humanity, and aggression. The ICC operates on the complementarity principle, i.e. only when States are unwilling or unable to prosecute and punish individuals for these crimes through national courts and legal systems. Because the ICC also does not have its own police nor enforcement body, it relies on States’ support to carry out its mandate, such as to collect evidence, make arrests, enforce judgment, and compensate victims. (Criminal law practitioners would be aware the immense logistics needed for this work.)

Indeed, the ICC has been subject to many political concerns. For better or for worse, the ICC remains the only permanent international criminal court. It is now ratified by 123 countries worldwide, including many rich and conflict-affected States. 33 African countries are parties, more than any other region. The ICC’s active investigations now cover almost every region, from Venezuela and Ukraine to Uganda, Myanmar/Bangladesh, and Afghanistan. The ICC has the network to support national criminal justice systems in ending impunity for the gravest of crimes, especially when these crimes are becoming increasingly extraterritorial. By acceding to the Rome Statute, Malaysia would be a part of this network and able to contribute more actively to ensuring accountability for these crimes and justice for victims, not just in Gaza but everywhere the ICC has jurisdiction.

International law requires all States to investigate, prosecute and punish individuals for committing these serious international crimes, even if there is no link between the crime committed and the State prosecuting (“universal jurisdiction”). For war crimes and genocide, States must do so particularly in terms of related treaties they are party to, such as the Genocide Convention (153 state parties, including Malaysia), the four Geneva Conventions of 1949, and the 1954 Hague Convention on the Protection of Cultural Property in Armed Conflict (134 state parties, including Malaysia). States in particular must search and prosecute or extradite those who have allegedly committed grave breaches under the four Geneva Conventions. Universal jurisdiction can be exercised by enacting relevant national laws (more common in practice) and/or investigating and trying alleged offenders through its national courts (less common). The latest example of universal jurisdiction being exercised is Switzerland’s criminal complaint against Israeli President Isaac Herzog when he attended the World Economic Forum in Davos last week.

There have been suggestions that Malaysia should exercise its universal jurisdiction against Israeli state leaders. But Malaysia and Israel do not have diplomatic ties, so it is hard to see how any of this arrest, investigation, or trial could happen in Malaysia. There is also no Malaysian law implementing the Genocide Convention nor the 1954 Hague Convention, or anything to criminalise and ‘operationalise’ Malaysia’s universal jurisdiction for genocide and attacks against cultural property. The Geneva Conventions Act 1960 could apply particularly in terms of grave breaches under Article 147 Fourth Geneva Convention. However, it is unclear if current Malaysian legal framework, procedure, and institutions are ready to adjudicate these cases. This Act has not been reviewed since it was first enacted 62 years ago. Therefore, until addressing these gaps and/or the Rome Statute become a priority, increasing Malaysia’s diplomatic efforts and international cooperation for now might be the only ways for Malaysia can contribute to this cause.

One-third of the world is now at war. The climate crisis, new weapons, and rising polarisation are already intensifying the impacts of war on people and environment living in conflict areas and risking the world at large. Like it or not, no conflict is now too far. Every person killed or starving stains our humanity. To ensure there is still hope, it is time - high time – for us as a country to approach preparedness, response, accountability, and justice in humanitarian crises strategically and impartially.

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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 organisations, internationally and nationally, in applications of international humanitarian and human rights law. She previously practiced at the Malaysian Bar. The views expressed here are entirely her own.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.

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