The international rules that govern war, occupation, and humanitarian relief are being tested this week at the International Court of Justice. Israel’s decision to ban a UN agency from working in the Occupied Palestinian Territories has sparked a global legal challenge, with forty-five countries and organisations—Malaysia included—weighing in at this week’s public hearings at The Hague. On this episode of #ConsiderThis Melisa Idris speaks with Aisya Abdul Rahman, Senior Lecturer at Universiti Malaya’s Faculty of Law.
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00:00Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show
00:15where we want you to consider and then reconsider what you know of the news of the day. The
00:19international rules that govern war, occupation and humanitarian relief are being tested this
00:26week at the International Court of Justice. Israel's decision to ban a UN agency from
00:32working in the occupied Palestinian territories has sparked a global legal challenge with 45
00:38countries and international organizations, Malaysia included, weighing in at this week's
00:44public hearings at The Hague. So to discuss this further on the show, we have Aisha Abdul Rahman
00:51who is a Senior Lecturer at University of Malaya's Faculty of Law. Aisha, thank you so much for
00:56being on the show with me. Thank you for joining me today. Can you begin maybe by helping us
01:00better understand what exactly is this advisory opinion that the ICJ is being asked to give?
01:07What exactly triggered it? Maybe you can give us more context as to the sequence of events
01:13that led to this point.
01:16So thank you first of all for having me on. So essentially for this advisory opinion and proceedings, the court is essentially asked to clarify the law or rather as it applies in the context of the OPT generally, the occupied Palestine territory generally. But then specifically, of course, as we're seeing what is going on in the
01:22what has been happening in Gaza, in relation to especially
01:24in Gaza, in relation to especially in Gaza, what is going on in Gaza, what is going on in Gaza? So essentially for this advisory opinion and proceedings, the court is essentially asked to clarify the law or rather as it applies in the context of the OPT generally, the occupied Palestine territory generally. But then specifically, of course, as we're seeing what has been happening in Gaza, in relation to especially
01:50the presence and the work of the UN, the UN agencies, especially, of course, in relation to UNRWA, but also other international organizations and other states who have been conducting or providing humanitarian aid and assistance to the Palestinian people in this particular context.
02:18So the advisory opinion was actually urgently requested by the UN General Assembly following resolutions on day 9222 in December 2024. Now this request was very specifically made on the basis of priority and urgency.
02:47So it is expected that the advisory opinion will come out sometime in July. And all of this comes on the back of the acute humanitarian crisis happening, especially in Gaza since October 2023.
03:09But also, since it is broadly termed, we're also talking about UNRWA's work and other humanitarian organizations' work, other UN agencies and other humanitarian organizations' work in the broader occupied Palestine territories.
03:32And this request was especially triggered by the legislation adopted by the NACED in October 2024, which effectively banned all cooperation and the work of UNRWA in the OPT.
03:50This, of course, followed the systematic targeting of UNRWA, systematic targeting of UNRWA, UN staff, and other humanitarian workers.
04:03And in Gaza, and in Gaza, and by targeting the killing of UNRWA workers, I think some 200 workers have already been killed in this conflict.
04:19We're also talking about the destruction and the destruction and damage due to UNRWA facilities and buildings.
04:26We're also talking about, of course, the suspension of funding of UNRWA.
04:33And, of course, we're also talking about some of the disinformation campaign as well against UNRWA and also against humanitarian organizations.
04:51Aisha, I'm trying to understand the international humanitarian law principles at work here.
04:59What IHL principles are relevant to this specific advisory opinion?
05:06Can you talk to me about what would constitute a violation of those principles?
05:12What exactly is Israel being judged on here?
05:17I think, first of all, I will start with the fact that the rules are very clear here.
05:21I mean, especially after the advisory opinion, clear rules of the international law are very clear here.
05:27And this is not just in relation to IHL, international humanitarian law, but also international human rights law,
05:34and international law in relation to self-determination and use of force and annexation.
05:43Now, when it comes to these latest principles, I think this has already been clarified by the advisory opinion of the ICJ last July,
05:53in that Israel's occupation in the occupied Palestinian territories are unlawful,
06:04amounts to unlawful territorial acquisition by force,
06:10and is, of course, and is, of course, repeats the exercise of right to self-determination.
06:22So, all of these international, this particular set of international meaning questions have been clarified by the ICJ
06:30in July, 2021, as we're opening.
06:34And I think this essentially reflects how important advisory opinions go,
06:40in as much as they may not technically legally binding as such.
06:46Right, right.
06:47And in fact, even for the purposes of this advisory opinion,
06:52Israel has been identified as an occupying power,
06:58and would have the obligations such as under international humanitarian law,
07:02as an occupying power.
07:05So, in terms of IHL, and some of the rules,
07:08clear rules that will be applicable here,
07:11would be that, of course, in terms of obligation of occupying powers,
07:16to, first of all, ensure humanitarian needs, basic needs of the civilian population,
07:23under its control, are fully met.
07:26And when they're not, when there is inadequate, or they cannot be inadequate,
07:31if we met, occupying power must allow belief operations,
07:36and must allow humanitarian organizations to work and to provide support
07:43in relation to the provision of humanitarian assistance and aid.
07:47Right.
07:48So, all of this is clear.
07:49Also, the rules that will be relevant would, of course,
07:54the prohibition of starvation of the civilian population.
07:58And this is relevant, not just in terms of this advisory opinion proceedings,
08:05and how the outcome of these proceedings would, in all likelihood,
08:09and if not certainly, affect and shape and influence the,
08:16what is also happening in relation to South African police.
08:21Ah.
08:22In the genocide.
08:23As well as, when, if we talk about the sentence of the arrest,
08:27the ICC arrest warrants against Netanyahu and Galantz as well.
08:31So, one of the, one of the charges that, for which the arrest warrants have been issued,
08:40is of course, starvation of, starvation as a method of warfare.
08:45So, you can see where all this is linked and interconnected here.
08:50Yeah.
08:51This is quite interesting, Aisha.
08:54If I may, this may jump in.
08:55Because I think there's a, there's a, there's criticism that,
08:59because advisory opinions from the ICJ are not legally binding,
09:04there is a sense of futility sometimes people think about these types of hearings.
09:09What do you think these types of proceedings, particularly when it's related to the occupied Palestinian territories,
09:17what does it reveal to you, Aisha, about the, the strengths and the weaknesses
09:21and the limitations of international law when resolving these protracted crises and conflicts?
09:29You talked about how they're all interlinked.
09:31What, what does it speak to you about the concerns people have that this is actually not legally binding
09:38and may not have a material impact on the current genocide in Gaza?
09:43I think as far as advisory opinions, even though they're not legally binding,
09:48they are highly, they are highly authoritative, they are influential.
09:53And because they are made by the ICJ, they do represent the, the opinion of the most eminent contemporary jurists of international law.
10:04And in, in fact, it has shaped, I mean, advisory opinions have shaped the development of international law as a body of law as far as we do.
10:14And, of course, in terms of how states formulate their policies and positions between states through the regional and global mechanism in the international legal play.
10:31So, like I said, even though technically they are not legally binding, in fact, in practice, they have been highly influential.
10:41And in terms of advisory opinions, I mean, the, the, the pending one, I think the decision should come along soon.
10:50We're talking about, there's one pending in relation to climate change, for example.
10:58And, and, and, and, and where Malaysia has participated, we see in, in the 19, in the 1990s, nuclear weapons, advisory opinion, for example, have subsequently refraved the, the, the discourse, all of the discourse, the prohibition of nuclear weapons, which eventually led to the TPNW, the nuclear ban treaty.
11:24And now nuclear weapons are totally prohibited under international law.
11:29So, I think, um, so I think, um, coming back, but coming back to these, uh, advisory opinions of the ICJ in relation to, um, in relation to, um, in relation to the Occupy Palestinian Territory.
11:43Even as far as the, uh, 2004 advisory opinion in relation to the wall, that was the first advisory opinion where the court sets out the fact that, the, uh, the court sets out and legally recognized the fact that, uh, this wall that, uh, Israel has built is,
12:01was actually an attachment to the exercise of the right to self-determination of the Palestinians.
12:06And of course that was the, the, the, the advisory opinion last year as well.
12:11And, um, the fact that the court had already made, uh, had already, uh, determined that the occupation, uh, the Israel, sorry, Israel's presence in the OTT, uh, has been on law firm and on law firm for almost six decades.
12:31Um, and, and now I think whether or not that occupation, uh, Israel's presence in the occupied territories, and this is, this could include the West Bank and East Jerusalem and not just in Gaza.
12:46I think that question is pretty much settled from the eyes, um, of the law.
12:51Right.
12:52Now, of course, at the same time, I would say that international law is not self-executing.
12:57Um, and that, that's, that's because international law operates on the basis of what's called consensus jurisdiction.
13:07Why?
13:08Because it takes into account, it operates on the basis of sovereign equality of state.
13:13It is designed as such.
13:15It is built as such.
13:17So therefore what is needed is of course political commitment.
13:22States must execute.
13:24States must, um, states are required to essentially carry out the obligations on the international law.
13:33Um, and I think as far, again, if we should be looking at these, um, these proceedings, even though, again, not tech and not legally binding as such, because the fact is that the international legal system works differently.
13:49Um, but what is more, most, uh, critical to understand, I guess, in terms of this current proceedings is the fact that, and it is identified in, and this is identified in resolution itself, is that the, what has been happening.
14:07To the, to the, to the humanitarian response, this is seen as a threat, not just.
14:17To the United Nations, but also markedly lateralism and being central to that.
14:24Um, it can, I mean, um, what is at stake is essentially not just humanitarian response, humanitarian work, assistance, but also really multilateral system where we are talking, we are at a critical point here.
14:43Um, like, like you, uh, started out with, this is the test.
14:48Um, and, and, and the international reviewer system, as we know which, uh, is, is, it's, it's certainly, they are being, uh, stress tested.
14:57So definitely a pivotal point here.
15:00Aisha, thank you so much for, for helping us, uh, understand better what is currently happening at, uh, The Hague.
15:08Thank you for your time.
15:09Um, that wrap, uh, we're going to take a quick break here on Consider This.
15:12We'll be back with more on this topic.
15:14So stay tuned.
15:18Bye.