The fact that Israel is alleged to have committed international crimes of genocide seems to be a slam-dunk accusation.
After all, such an allegation has been duly corroborated by a slew of international legal scholars around the globe.
In his recent article published in Al Jazeera, M Muhannad Ayyash - a sociology professor at Mount Royal University in Calgary, Canada - said two critical elements should exist to constitute a crime of genocide: the infrastructural and material capabilities to commit the genocide, and the ability to conceal the genocide by calling it something other than what it is.
And he believes the West is participating in both of these critical elements in the present armed conflict taking place in Gaza.
Genocide is often referred to as “the crime of crimes”, “the ultimate crime”, or “the pinnacle of evil”. Raphael Lemkin - a Jewish Polish lawyer - duly coined this term.
As put by John Q Barrett, “Lemkin fathered the concept of genocide as a defined international crime.”
Prior to that, former UK prime minister Winston Churchill spoke with uneasiness and distress in 1941 when he said: “We are in the presence of a crime without a name.”
After the conclusion of the Nuremberg trials in December 1946, the UN General Assembly declared genocide a crime under international law.
Genocide Convention
On Dec 9, 1948, the UN adopted the Convention on the Prevention and Punishment of the Crime of Genocide (known as the Genocide Convention).
The legal definition of genocide may be found in Article II of the Genocide Convention 1948 and Article 6 of the Rome Statute respectively.
The main stumbling block in sanctioning human rights violations - which are allegedly routinely committed by Israel with solid backing from its close allies - under international law is the spectre of international law doctrine which says the sovereignty of a state overrides human rights.
But we may breathe a sigh of relief because, in cases of genocide, human rights will, however, trump the sovereignty of any state. Hence, any country in this world cannot invoke the principle of sovereignty to escape liability for the crimes of genocide.
International law jurists developed a specific legal term under international law - known as the erga omnes obligation - which means an obligation owed by states towards the community of states as a whole.
The principle of the erga omnes obligation was duly created due to the universal and undeniable interest in the perpetuation of critical rights and the prevention of their breach.
By virtue of this vital doctrine, any member state of the UN is duly conferred a right to complain of a breach of the erga omnes obligation against any perpetrator of such a heinous crime.
We may safely argue that the underlying rationale of having an erga omnes obligation is the global intention of ending impunity.
Piracy and genocide are two core crimes whereby the doctrine of the erga omnes obligation would apply. The International Court of Justice has consistently adopted and applied this principle in many cases, such as in the case of Gambia vs Myanmar. - Mkini
MOHAMED HANIPA MAIDIN is a former MP and former law minister. He was also a practising lawyer for almost 25 years.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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