LETTERS: South Africa's intention to file an application instituting proceedings against Israel before the International Court of Justice (ICJ) concerning alleged violations by Israel of its obligations under the Genocide Convention, should trigger Malaysia to declare an intervention to punish Israel for the act of genocide under the Convention.
Under Article 63 of the Statute of the ICJ, a state has a right to intervene whenever the construction of a multilateral convention is in question.
Pursuing the declaration is a diplomatic gesture with Palestine and testament to the unwavering solidarity of all Malaysians in concert with the unified condemnation of the world against genocide by Israel.
The pursuit of justice for the Palestinian people must be made without hesitancy of the reservation provision Malaysia made in acceding to the Genocide Convention in 1994.
Malaysia, as a state party to the Genocide Convention, should be in solidarity with South Africa, first, by indicating Malaysia's abhorrence towards the genocide committed by Israel and secondly, its assurance of state responsibility and accountability towards any crime of genocide in the international criminal justice system.
Recently published articles in local media assumed that the government may not be able to pursue a case against Israel at the ICJ for the offence of genocide under the Genocide Convention as Malaysia made a reservation in Article IX of the Convention in relation to submission to the court's jurisdiction where consent is required in each case.
With respect, in the interest of justice for the Palestinians, we must continue to pursue the intervention. The self-imposed reservation clause should not be a legal impediment for us to make such declaration.
The ICJ in 1951 made its advisory opinion on the legal standing of the reservation clauses made by the state parties to the Genocide Convention and the objection by states upon making such a reservation.
In the case of Malaysia, the Netherlands, United Kingdom and Norway made such an objection. Several positive and important observations were made by the Court that are crucial for the government to consider before making a declaration for the intervention to ICJ.
First, the court in that case took cognizance that in a multilateral convention, agreement must be freely concluded and in its traditional concept, "involved the proposition that no reservation was valid unless it was acceptable by all contracting parties".
Second, with regard to the Genocide Convention, its application is made more flexible by a variety of circumstances among which may be noted the universal character of the United Nations as more general resorts to reservations, as such, great allowance can be made to tacit assent to reservations.
Third, the solution must be found in the special characteristics of the Convention on Genocide. That the principles underlying the Convention are recognised by civilized nations as binding on states even without any conventional obligation.
Fourth, it was intended that the convention would be universal in scope. Its purpose is purely humanitarian and civilizing. The contracting states do not have any individual advantages or disadvantages nor interests of their own, but merely a common interest.
Finally, the court summed up that on account of its abstract character, it cannot be given an absolute answer. The appraisal of a reservation and the effect of objections depend upon the circumstances of each case.
Hence, Malaysia must continue to pursue and champion the rightful legal remedies of the Palestinians and exhort the international community and the court not to allow the perpetrator of genocide be left unaccountable.
DR RAHMAT MOHAMAD
Professor of Law, Faculty of Law, Universiti Teknologi Mara
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times