Malaysians should offer our congratulations and admiration to the people and Government of South Africa for using its unqualified accession to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) on 10 Dec 1998, to move for Israel to be referred to the International Court of Justice in the Netherlands for committing crimes of genocide against the people of Palestine.

In doing so, we should reflect on and recognise two realities: Firstly with a dash of circumspection, that despite the Malaysian Government being one of the most consistent and vocal supporters of the plight of Palestinians, the right of statehood for Palestine and the end of Israel’s occupation of Palestinian Occupied Territories through the decades, it was ultimately a non-Muslim African BRICS nation that pursued this unprecedented action under the provisions of a longstanding United Nations Convention and under International Law.

Secondly, perhaps with an even greater dose of humility, we should recognise that when Malaysia itself acceded to the Genocide Convention on 20 Dec 1994 (after a decision and approval by the Malaysian Cabinet), the Government at that time did so while declaring this particular reservation:

“That with reference to article IX of the Convention, before any dispute to which Malaysia is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of Malaysia is required in each case.”

South Africa and Israel made no such reservation when both acceded to the Genocide Convention which is why South Africa is able to request for Israel to be referred to the International Court of Justice – and why Israel is unable to refuse. [Israel itself was a founding signatory to the Genocide Convention on 17 Aug 1949].

Furthermore, on 23 February 1996 shortly after Malaysia and Singapore’s accession to the Convention, the Netherlands which hosts the ICJ, issued this declaration:

With regard to the reservations made by Malaysia and Singapore made upon accession:
“The Government of the Kingdom of the Netherlands recalls its declaration made on 20 June 1966 on the occasion of the accession [to the said Convention].

“Accordingly, the Government of the Netherlands declares that it considers the reservations made by Malaysia and Singapore in respect of article IX of the Convention incompatible with the object and purpose of the Convention.
The Government of the Kingdom of the Netherlands does not consider Malaysia and Singapore Parties to the Convention.”

The United Kingdom issued the following declaration in March 1996:

With regard to reservations to article IX made by Malaysia and Singapore upon accession:
“The Government of the United Kingdom of Great Britain and Northern Ireland have consistently stated that they are unable to accept reservations to article IX. In their view, these are not the kind of reservations which intending parties to the Convention have the right to make. Accordingly, the Government of the United Kingdom do not accept the reservations entered by the Government of Singapore and Malaysia to article IX of the Convention.”

In short, while South Africa is able to initiate action under international law against Israel for the crimes of genocide committed against the Palestinian people, Malaysia is unable to do the same because it is not regarded as being a full and legitimate party to the international law that makes this a crime.

This is the true import and weight of the legal-diplomatic action by Government of South Africa. So the next time you meet someone from South Africa, shake their hand and thank them for their government’s steadfast courage and principles that have stood the test of time.

Malaysia can regain our dignity by discarding our exceptionalism, work to withdraw our reservation under the Genocide Convention and hold true our common humanity and obligations under international law.