ORAL STATEMENT BY MINISTER OF FOREIGN AFFAIRS OF MALAYSIA DATO’ SERI UTAMA HAJI MOHAMAD BIN HAJI HASAN

ORAL STATEMENT BY MINISTER OF FOREIGN AFFAIRS OF MALAYSIA DATO' SERI UTAMA HAJI MOHAMAD BIN HAJI HASAN

AT THE PUBLIC HEARINGS ON THE REQUEST FOR THE INTERNATIONAL COURT OF JUSTICE'S (ICJ) ADVISORY OPINION ON THE LEGAL CONSEQUENCES ARISING FROM THE POLICIES AND PRACTICES OF ISRAEL IN THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST JERUSALEM

PEACE PALACE, THE HAGUE 22 FEBRUARY 2024

Mr. President, Distinguished Members of the Court,

1. It is a great honour and privilege for me to represent Malaysia in these advisory proceedings concerning the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.

2. As I stand here today, Gaza is facing devastation, including in Rafah, at the southern end of the Strip. The West Bank is also at risk. Safeguarding Palestine from destruction is crucial, especially in light of Israel's non-compliance with the recent Order of Provisional Measures of this Court of 26 January 2024 in the case brought by South Africa. The matter before you today is of grave concern to the General Assembly, all States, and the Palestinian people.

3. The Palestinian people have long suffered dehumanisation, demonisation, brutal collective punishment. They have endured, and are still enduring, the denial of their right to self-determination due to the "policies and practices" of Israel in the OPT. It is incumbent upon each of us to do our part in ending their decades-long suffering and to work towards peace in their land.

4. Malaysia has consistently supported peace for the Palestinian people, aligning itself with relevant General Assembly and Security Council Resolutions. As was the case in the Advisory Opinion on the Wall, this Court is uniquely positioned to give authoritative guidance on the legal questions submitted by the General Assembly. With a firm belief in this Court's role as the custodian of international law, we remain confident that justice and peace will prevail for Palestine.

5. Malaysia's submission today is straightforward. The "policies and practices" of Israel in the Occupied Palestinian Territory are a set of acts and measures that individually breach a number of rules of public international law. These "policies and practices", however, taken together, also amount to a serious breach of the right to self-determination of the Palestinian people, which is protected by a peremptory norm of international law. The occupation of Palestine, for its part, is nothing but these "policies and practices". The occupation itself is thus in serious breach of a peremptory norm of international law and must be brought to an end immediately.

6. In my presentation, I will first deal briefly with the Court's jurisdiction and its discretion to respond to the request of the General Assembly. The second part of my presentation summarises Malaysia's position on the legality of the "policies and practices" of Israel in the OPT. In the third and final part, I will set out the legal consequences that arise for Israel, for all other States, and for the United Nations, respectively, from what Malaysia submits is a flagrant denial of the Palestinian people's right to self-determination.

Mr. President, Members of the Court,

7. As regards the Court's jurisdiction to render this Advisory Opinion, Malaysia considers that the requirements of Article 65, paragraph 1, of the Statute of the Court, read together with Article 96, paragraph 1, of the Charter of the United Nations, are plainly satisfied in the present case.

8. First, the General Assembly is competent to request an Advisory Opinion, given that the United Nations has "a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy".

9. Second, the questions addressed to the Court are legal questions, "framed in terms of law and raising problems of international law". The request that the Court determine the existence of violations of international law and their corresponding legal consequences is "by its very nature susceptible of a reply based on law".

10. Malaysia further submits that there are no compelling reasons preventing the Court from exercising its jurisdiction, which after all represents, in the Court's own words "its participation in the activities of the United Nations", which "in principle should not be refused".

11. Israel and others have argued that the Court is being asked to resolve what is essentially a bilateral dispute between Israel and Palestine, and to make "permanent status determinations". Israel, in its unsurprisingly brief Written Statement, argues that "both interested parties have given their express and binding consent to resolve all relevant disputes through another settlement means", namely "through direct dialogue".

12. Malaysia stresses, first and in principle, that questions of self-determination are never purely bilateral matters between States. They refer to a peremptory norm of international law, which produces erga omnes obligations, owed to the international community as a whole. That being so, all States and the United Nations have a legal interest in the protection of the rights involved.

13. But quite apart from that, the questions before the Court are not at all concerned with settling disputes between Israel and Palestine. The Court is requested to set out the legal consequences of Israel's "policies and practices" in the OPT. Its Advisory Opinion will inform the exercise by the General Assembly of the "permanent responsibility" of the United Nations towards the question of Palestine. Such matters neither involve the determination of "permanent status" issues, nor are they for the parties to any "direct dialogue" to waive or disregard.

14. As a final point, Malaysia recalls that it was on these grounds that the Court decided to exercise its advisory jurisdiction in the Wall, rejecting these and other arguments which have been replayed in these proceedings, such as that the Court does not have sufficient information and evidence. Malaysia submits that the Court was correct then, and that there are no more compelling reasons today, for the Court to refuse to render the Opinion requested than there were twenty years ago.

Mr. President, Members of the Court,

15. The objective of Malaysia in making these oral submissions is not only to make its position known on the legal questions before the Court. Its objective is also to assist the Court in its important work. With that in mind, Malaysia offers here a way of thinking about the substance of the request of the General Assembly.

16. The General Assembly refers in its request to the right to self-determination, and in particular in question (a), to the prolonged occupation, settlement, and annexation of the Occupied Palestinian Territory, to the measures aimed at altering the demographic composition, character, and status of the Holy City of Jerusalem, and to the adoption of discriminatory legislation and measures. In question (b) then, the Assembly refers to the "policies and practices" of Israel referred to in question (a), and asks the Court how these affect the legal status of the occupation and what the corresponding legal consequences are.

17. Malaysia submits that the "policies and practices" of Israel in the Occupied Palestinian Territory consist of a set of acts and of legislative, administrative, and other measures. These include:

- the construction, maintenance, and extension of a wall in the OPT;

- the establishment, maintenance, expansion, and protection of settlements in the OPT along with their associated discriminatory legal regime;

- the demolition of Palestinian homes and the forced transfer of Palestinians in that territory;

- the control of the provision of food, water, electricity, and other amenities to the OPT;

- and other acts and measures,

detailed both by United Nations organs and by the States having chosen to appear before you.

18. All these "policies and practices" constitute in and of themselves violations of individual rules of international law, including:

- international humanitarian law and the law of occupation,

- international human rights law,

- the prohibition of the use of force and the associated prohibition of acquisition of territory by the threat or use of force,

- and others.

19. All of this is detailed in Malaysia's Written Statement, as well as in other Written Statements submitted to the Court in these proceedings. And we have heard, over the last few days, many States argue before the Court along these lines.

20. Malaysia submits that, taken together, these "policies and practices", apart from breaching individual rules of international law, also constitute a serious breach of the Palestinian people's right to self-determination, a jus cogens obligation incumbent on all States, and owed to the international community as a whole.

21. Malaysia further submits that these "policies and practices" in and of themselves constitute the occupation of the Palestinian territory. These "policies and practices" are nothing but the means by which Israel is exercising its control over the OPT, the means by which it is enforcing its occupation.

22. These "policies and practices", resulting as they do in a serious breach of the jus cogens right to self-determination, cannot but affect the legal status of the occupation of the Palestinian territory by Israel, rendering it unlawful.

Mr. President,

23. Allow me now to put some flesh on the bones of the argument that I have just presented.

24. First, there can be no doubt that the right to self-determination is a peremptory norm of international law, from which flow obligations erga omnes. This Court has already confirmed as much on numerous occasions. It has done so both explicitly, with respect to the erga omnes character of the relevant obligations, and by drawing the consequences of a serious breach of the right to self-determination in a manner that reflects the special consequences that accrue to a serious breach of a peremptory norm of international law.

25. Second, there can also be no doubt that the right to self-determination applies to the Palestinian people. As this Court noted in the Wall Advisory Opinion, "as regards the principle of the right of peoples to self-determination, the existence of 'Palestinian people' is no longer in issue".

26. Third, Malaysia submits that there are four core, substantive elements of the right to self-determination.

27. The first such element is the right of a people to territorial integrity. As this Court confirmed in Chagos, "the right to territorial integrity of a non-self-governing territory is a corollary of the right to self-determination".

28. The second element is the right of a people to territorial unity, and the protection of its integrity as a people. As this Court found in the Wall Advisory Opinion, "alterations of the demographic composition of the Occupied Palestinian Territory" constitute a violation of the right to self-determination.

29. Third, a people has a right to permanent sovereignty over its natural wealth and resources, as part of its right to self-determination. The General Assembly has described such permanent sovereignty as a "basic constituent of the right to self-determination", and has further declared that the "violation of the rights of peoples to sovereignty over their natural wealth and resources is contrary to the spirit and principles" of the UN Charter.

30. Finally, the fourth element of the right to self-determination is the freedom of a people to pursue their economic, social, and cultural development. According to the General Assembly, this is a fundamental aspect of the principle of equal rights and self-determination of peoples, as enshrined in the UN Charter.

31. The fourth submission that Malaysia wishes to make is that the "policies and practices" of Israel in the Occupied Palestinian Territory violate numerous individual rules of international law, as well as each one of the four core, substantive elements of the right to self-determination.

32. I will demonstrate this as briefly as possible.

33. Israel's "policies and practices" with respect to the legal status of East Jerusalem, along with its establishment, facilitation, and expansion of settlements in the OPT, with their associated infrastructure and discriminatory legal regime, amount to attempts at de jure and de facto annexation, respectively. This is in clear breach of the prohibition of acquisition of territory by the threat or use of force, a corollary of the prohibition of the use of force in the UN Charter, which is a peremptory norm of international law.

34. Israel's transfer of civilians into the OPT is a breach of Article 49, paragraph 6, of the Fourth Geneva Convention of 1949 and constitutes a war crime per the Rome Statute of the International Criminal Court. Apart from constituting individual breaches of international law, these "policies and practices" violate the territorial integrity of the Palestinian people, and thus its right to self-determination.

35. Israel's "policies and practices" which aim at changing the demographic composition of the OPT, along with the creation of enclaves of Palestinians, the demolition of their homes, the limitation of their freedom of movement, including the blockade, siege, and purported evacuation of the Gaza Strip, constitute violations of international humanitarian law and of international human rights law. But they also violate the unity and integrity of the Palestinian people, and thus its right to self-determination.

36. Israel's "policies and practices" of expropriation of Palestinian land for use as settlements, of control over all water resources in the West Bank and of control of water provision in the Gaza Strip, of granting licences for oil and gas extraction, and of operating quaries in the OPT constitute violations of international humanitarian law and of international human rights law. But they also violate the permanent sovereignty of the Palestinian people over its natural wealth and resources. They thus violate its right to self-determination.

37. Israel's "policies and practices" of exploitation of natural resources, of restrictive zoning and planning regimes in the OPT, of blockading Gaza and of subsequently razing it to the ground, of hampering or limiting access of Palestinians to health services, educational establishments, and primary sources of water, of preventing Palestinians from accessing sites of religious and cultural importance in the OPT, of restricting their freedom of association and expression, and of condoning settler violence constitute violations of international humanitarian law and of international human rights law. But they also violate the Palestinian people's freedom to pursue their economic, social, and cultural development, and thus its right to self-determination.

Mr. President,

38. Twenty years ago, almost to the day, Malaysia argued before this Court that Israel's construction of a wall deep inside the OPT violated the Palestinian people's right to self-determination. And this Court found, in its Advisory Opinion, that "that construction, along with measures taken previously, severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right". "Along with measures taken previously", the Court said. That was a reference, as is evident from the preceding paragraphs of that Advisory Opinion, to the "policies and practices" of Israel involving the establishment of settlements and their associated regime.

39. If that was the case then, twenty years ago, a fortiori this must be the case now - how could it not be? If anything, Israel has maintained and extended the wall, and it has escalated the "measures taken previously", ramping up the establishment of settlements, expanding them, providing funding and amenities to them, as well as security, and extending the associated discriminatory legal regime. It has also continued and escalated the demolition of Palestinian homes, the practice of forced transfers, and the transfer of its own civilians into the OPT.

40. Even in 2004, based on conduct less grievous than the one before the Court today, Israel's breach of the right to self-determination of the Palestinian people was found to constitute a serious breach of a peremptory norm of international law. Reading the relevant paragraphs of the Court's Opinion leaves no room for doubt in this respect. The Court called upon all States not to recognise the illegal situation resulting from the construction of the wall in the OPT and not to render aid or assistance in maintaining the situation created by such construction.

41. The Court also found that "it is for all States to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end". This language closely reflects that of Article 41 of the Articles on State Responsibility regarding the particular consequences of serious breaches of obligations under peremptory norms of international law.

42. The "a fortiori" argument I made with respect to the existence of a violation of the right to self-determination, applies here as well.

43. This is not just any violation.

44. It is a serious breach of a peremptory norm of international law. If it were so with respect to the much more limited issue before the Court in 2004, it must certainly be so today.

45. We are no longer talking only about the construction of a wall. We are talking about the whole host of "policies and practices", of acts and measures, so well documented by the United Nations, and by most of the States that have spoken in these proceedings. These could not amount to anything less than what the construction of a wall amounted to twenty years ago. Indeed, they underscore the devastating deterioration of the situation in the Occupied Palestinian Territory since then.

Mr. President, Members of the Court,

46. I will have to return to the legal consequences of Israel's "policies and practices" in the OPT in the final part of my presentation. But before I do so, I would like to conclude this part of the argument. I have established so far that Israel's "policies and practices" in the OPT constitute not only violations of several rules of international law, but also violations of each core element of the right to self-determination of the Palestinian people.

47. Malaysia submits that this serious breach of a most fundamental peremptory norm of international law renders unlawful the occupation as a whole. In particular, Malaysia submits that it is the "policies and practices", discussed and assessed in these proceedings, that constitute the occupation.

48. These "policies and practices" are in fact the occupation itself. They are the means by which Israel enforces its control, the means by which it occupies the Palestinian territory.

49. And they are also unlawful: they breach a great number of rules of international law, and ultimately result in a serious breach of the Palestinian people's right to self-determination. This must mean that the occupation as a whole is unlawful, as it constitutes a flagrant denial of the right to self-determination.

Mr. President, Members of the Court,

50. I turn now to the final part of my presentation, which concerns the legal consequences arising for Israel, for all other States, and for the United Nations, respectively, out of the serious breach of the obligation to respect the right to self-determination of the Palestinian people.

51. As regards the legal consequences for Israel arising from that serious breach, I will be brief:

52. Israel must, first of all, cease the continuing violation. This means that it must cease all the relevant "policies and practices" I have already discussed. Consequently, it must withdraw immediately from the Occupied Palestinian Territory.

53. Second, Israel must offer assurances and guarantees of non-repetition.

54. And third, Israel is under an obligation to offer full reparation. This means that it must provide both actual and juridical restitution, including the annulment or repeal of all offending legislative and regulatory measures it has adopted for the OPT.

55. Israel must also offer compensation for all material and moral damage caused by the breach of the right to self-determination, to the extent that this is not made good by restitution.

56. The legal consequences arising for Israel from its serious breach of the right to self-determination are, in principle, no more burdensome than the legal consequences arising for any State that has committed even a trivial breach of international law.

57. It is rather for other States - indeed, for all other States - that special legal consequences arise out of this serious breach of jus cogens. It is for this reason that Malaysia felt it was under a duty to participate in these advisory proceedings.

58. In particular, all States must cooperate to bring to an end through lawful means the serious breach of the right to self-determination, and consequently the unlawful occupation of the Palestinian territory.

59. Further, all States must not recognise as lawful the situation created by the serious breach of the right to self-determination, that is, the occupation of the Palestinian territory.

60. Finally, all States must not render aid or assistance to Israel in maintaining the unlawful denial of the Palestinian's right to self-determination, thus the occupation of the Palestinian territory.

61. Malaysia stresses the obligation of all States to support UNRWA, and to halt any financial or military support to Israel that aids or assists in the denial of the right to self-determination and the unlawful occupation.

62. As for the legal consequences that arise for the United Nations, these are none other than the obligation to pursue with vigour its "permanent responsibility" towards the question of Palestine, including its responsibility to ensure UNRWA's continued effective functioning.

63. The UN must continue to serve as a forum of institutionalised cooperation for States working towards fulfilling their secondary obligations of bringing to an end the ongoing violation of the Palestinian people's right to self-determination and the unlawful occupation of the Palestinian territory.

Mr. President,

64. Malaysia remains steadfast in our pursuit of a world where compassion and justice prevail.

65. The principal judicial organ of the United Nations is asked today to do its part in that noble pursuit. Malaysia sincerely hopes that it will agree to do so.

Mr. President, this concludes my submissions. I thank the Court for its kind attention.

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