MP SPEAKS | Seeking justice for Palestinians at ICJ

MP SPEAKS | As of Dec 10, nearly 17,500 Palestinians have been brutally murdered, more than 7,700 being children; another 6,500, two-thirds of whom are women and children, are still missing; 1.9 million Palestinians internally displaced; and 305,000 homes reduced to rubble: such is the death toll and casualty count that is still on the rise in Gaza.

No less than 800 factories and more than 120 government facilities, 275 schools, 194 mosques, seven churches, 21 hospitals, 101 clinics, and 58 ambulances are part of the inventory of destruction being boasted by the Israeli occupying forces and the genocidal Zionist regime of Israel.

This is genocide - the most serious of war crimes. And it is being carried out by a regime supported in words, actions, money, and arms by some of the richest, allegedly most civilised, and most powerful countries in the world.

The Genocide Convention, adopted in 1948, defines genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. This includes killing members of the group, causing serious bodily or mental harm, deliberately inflicting conditions calculated to bring about physical destruction, imposing measures intended to prevent births, and forcibly transferring children”.

With Malaysia's non-accession to the Rome Statute, the International Criminal Court (ICC) is not an option if Malaysia is to escalate its actions against Israel. Malaysia can and must support the efforts of those countries which are signatories to the Rome Statute.

Arguably, the situation is already beyond the scope and purview of ICC. The ICC is mandated to prosecute individuals for serious war crimes like genocide, and crimes against humanity, whereas the Internationl Court of Justice (ICJ) is the main judicial branch of the United Nations and deals with disputes between countries.

Article IX of the Genocide Convention provides that disputes between states concerning the interpretation, application, or fulfilment of the convention, including those relating to the responsibility of a state for genocide, shall be submitted to the ICJ. In this context, Israel, as a member of the UN, can be referred to the ICJ by Malaysia, also an acceded party to the Genocide Convention.

The only hurdle in doing so would be that, when Malaysia acceded to the Genocide Convention, we made a specific reservation on Article IX, which essentially declared that Malaysia does not consider itself bound by the dispute resolution mechanism of the convention.

This means that Malaysia does not agree to automatically submit to the jurisdiction of the ICJ for disputes arising under the Genocide Convention.

In practical terms, for Malaysia to bring Israel to the ICJ under the convention, we would require either a separate agreement with the other party (Israel) to submit to the court's jurisdiction or the other state's existing consent to ICJ jurisdiction over such disputes. That is highly unlikely to materialise.

However, working around this is simple and requires three initial steps:

1. Malaysia's temporary withdrawal of our reservation on Article IX would allow it to invoke the jurisdiction of the ICJ for this specific case. Countries often make reservations to international treaties to exclude or modify the legal effect of certain provisions, in this case, the dispute resolution mechanism through the ICJ.

2. By seeking the activation of Article IX, Malaysia would be formally accusing Israel of genocide against Palestinians and bringing the case before the ICJ. This is a significant legal and diplomatic step, requiring substantial evidence and legal argumentation.

3. The call for provisional measures is a request for the ICJ to take immediate steps to prevent further alleged acts of genocide while the case is being heard. This aligns with articles 73, 74, 75, and 78 of the Rules of Court of the ICJ, which allow the court to issue such measures to prevent irreparable harm to the rights which are the subject of judicial proceedings.

Malaysia's potential referral of Israel to the ICJ for genocide against the Palestinian people involves complex legal, political, and diplomatic considerations. It would require a global effort from a global legal and humanitarian partnership to carry out a rigorous examination under the Genocide Convention's definitions and standards, and the outcome could have far-reaching implications for international law and the Israel-Palestine conflict.

Of the various possible immediate outcomes that we ought to seek, the primary one is an ICJ order to compel Israel to halt all actions detrimental to justice and may cause irreparable harm to life; failure to comply will render Israel in contempt of the ICJ, and by extension, the United Nations itself.

We will need to mobilise a partner state actor or actors in our efforts - in the case of the Malaysian government accepting the task of leading such an initiative.

I call for the wisdom and leadership of the Malaysian government to bravely commence proceedings to refer Israel to the ICJ, while supporting the efforts of partners down the path of the ICC, not only for Palestine but also for the integrity of the UN and humanity itself.

HOWARD LEE is Ipoh Timor MP.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.