LETTERS: Malaysia's recent proposal to sponsor a draft resolution to expel Israel from the United Nations (UN) has sparked considerable debate, both locally and internationally.
This proposal underscores Malaysia's commitment to addressing Israel's actions in the occupied Palestinian territories, where serious allegations of genocide and crimes against humanity have surfaced.
However, we should first urge the UN to establish a war crimes tribunal dedicated to investigating and prosecuting these alleged violations to secure true justice and accountability.
Such a tribunal would demonstrate a clear commitment to justice and accountability, drawing on historical precedents, in a way that expulsion alone cannot achieve.
International humanitarian law, particularly the Geneva Conventions of 1949, mandates that all states "respect and ensure respect" for laws protecting civilians.
Specific provisions within the Fourth Geneva Convention, including Articles 49 and 147, prohibit the forced transfer of civilians and the destruction of civilian property without military necessity — actions occurring frequently in the occupied Palestinian territories.
These provisions obligate the international community to hold accountable those responsible for such breaches.
After the establishment of the International Criminal Court (ICC), some questioned the need for additional tribunals, especially since the ICC is the primary international body for prosecuting war crimes, genocide, and crimes against humanity.
However, historical and procedural frameworks make a UN-mandated tribunal a viable, even necessary, option.
One key argument is that the ICC operates on limited jurisdictional power, focusing mainly on state parties or situations referred by the UN Security Council (UNSC).
For Israel, which has not ratified the Rome Statute, ICC jurisdiction is complex and, at times, politically constrained. By contrast, ad hoc tribunals can be established directly by the UNSC under Chapter VII of the UN Charter, allowing for tailored responses in specific regions, such as the former tribunals for Rwanda and the former Yugoslavia.
These tribunals had the advantage of a clear mandate, operational focus, and authority to address crimes tied to specific conflicts without needing additional ratifications.
Furthermore, while the ICC has initiated investigations into Palestine, a dedicated tribunal — similar to the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) — could focus comprehensively on the atrocities of the Israeli regime against Palestine, addressing violations swiftly with a more targeted mandate.
Experts argue that an ad hoc tribunal could address accusations of genocide and human rights abuses against Israel in a way that may be procedurally more direct than ICC prosecution.
Some experts, like legal scholar William Schabas, emphasise that the creation of a tribunal also signals the international community's commitment to addressing certain atrocities in a focused and transparent way, which could strengthen global accountability beyond existing ICC constraints.
Ultimately, establishing a tribunal offers procedural and jurisdictional flexibility that the ICC currently lacks, particularly in politically sensitive cases not covered by existing jurisdiction. This could make a tribunal not only viable but potentially more effective than relying solely on the ICC to prosecute cases involving rogue regimes like Israel.
Functions and Impact of a War Crimes Tribunal
A specialised tribunal would bring about meaningful accountability in several key ways:
1. Comprehensive Investigation and Evidence Gathering: A tribunal would be empowered to conduct systematic investigations, collect testimonies from victims, and gather forensic evidence. Such investigations would provide an authoritative record of events, a level of due process that expulsion alone cannot offer;
2. Prosecution and Accountability for Leadership: Beyond isolating a state, a tribunal would target individual accountability, prosecuting those who planned, ordered, or carried out alleged war crimes. This approach holds leaders to account, as seen in the ICTY and ICTR, where top military and political figures faced justice;
3. Transparency and Public Deterrence: Trials conducted through an international tribunal would be transparent and public, deterring future violations by showing the world that actions have consequences. Expulsion would lack such transparency and deterrence, allowing individuals in leadership positions to evade accountability; and,
4. Restorative Justice for Victims: A tribunal would give a platform to the voices of victims, recording their experiences and enabling a process for reparations, where feasible. This opportunity for justice and recognition is essential for long-term healing and is missing from an expulsion process.
Why a Tribunal is More Effective than Expulsion
Expelling Israel from the UN, while symbolically significant, would not investigate or prosecute alleged war crimes. Instead, it would isolate the state without ensuring any actual accountability for leaders or individuals responsible for violations. Furthermore, such isolation could lead to further disregard for international norms, with Israel potentially dismissing UN resolutions altogether.
In contrast, a tribunal allows for thorough investigation and trial, applying legal standards to individual cases and actions. Richard Falk, an esteemed professor of international law, asserts that "true justice requires due process, not isolation alone."
Former US Ambassador for War Crimes David Scheffer similarly argues that tribunals provide critical transparency and legal rigor — elements missing in a mere expulsion. Additionally, Navi Pillay, former UN High Commissioner for Human Rights, has emphasised the importance of legal mechanisms to address impunity in serious cases, noting that tribunals play a unique role in upholding justice and accountability.
Historical Precedents Support the Tribunal Approach
The ICTY and ICTR exemplify how dedicated war crimes tribunals can bring justice and deterrence. In both cases, the tribunals prosecuted those at the highest levels of power, creating a lasting record of truth and accountability.
They enabled victim testimony, provided reparations, and demonstrated to the global community that no one is above the law. A similar tribunal for Israel-Palestine would allow for a balanced and structured process, addressing alleged crimes on all sides, while setting a precedent for international law in conflict zones.
Establishing a war crimes tribunal would affirm principles of justice and accountability, offering a path toward peace built on transparent, legal, and fair procedures.
By addressing individual accountability and amplifying the voices of victims, we can work to end the prolonged suffering of the Palestinians with a commitment to international law and human dignity.
We should lead the way in championing this approach.
AZRIL MOHD AMIN
Chairman, CENTHRA Malaysia and former Deputy Chief Prosecutor, Permanent Peoples Tribunal's Session on State crimes allegedly committed in Myanmar against the Rohingya, Kachins and other groups (2018-2019)