RECENTLY the Jerusalem Post reported that the US House of Representatives had approved and passed a bill, known as the Hamas International Financing Prevention Act.
The bill – which passed the House by 363-46 votes – essentially seeks to sanction foreign supporters of Hamas and Palestinian Islamic Jihad terrorist movements.
By virtue of this sanction bill, any government which will be hit by such a painful sanction will be barred from receiving US assistance or the exports of controlled munitions for one year.
In addition to that, international financial institutions will also be instructed to oppose providing assistance to these governments for a year.
In response to such a threat, the Prime Minister Datuk Seri Anwar Ibrahim told the Dewan Rakyat during the Prime Minister’s Question Time that such US intimidation would not impact Malaysia’s stand on the Palestine issue, including its relationship with Hamas.
According to the prime minister, Malaysia is invariably undergirded by its principle that Hamas has a legitimate right to the Palestinian struggle, as much as South Africa’s African National Congress had the right to fight for freedom under Nelson Mandela.
Renowned Israeli historian Ilan Pappé has written a book ‘The Ethnic Cleansing of Palestine’, in which he condemns the policy of Israel against Palestine. Many scholars also view that the terms ‘genocide’, ‘ethnic cleansing’ and ‘apartheid’ share almost identical and common features.
In expressing Malaysia’s affirmative stand on this issue, the prime minister categorically stated that it will not recognise the US’ unilateral decision to impose such a sanction.
He maintains that the government does not recognise any decision by any country, including the US, to impose restrictions or sanctions unilaterally.
As far as Malaysia is concerned, the prime minister reminds all that it only recognises decisions by the United Nations (UN) in a multilateral manner.
In my view, the prime minister is legally right when he states that Malaysia only recognises decisions by the UN. He posits the true position of international law as far as the imposition of sanctions is concerned.
One may infer that through his bold statement, the prime minister is trying to drive home this pertinent point – it is high time the world should be regulated only by a rule of law. Period. Might makes right is a relic of the past.
By virtue of Chapter VII of the UN Charter, the Security Council is given the sole power to impose sanctions under international law. As sanctions fall under the rubric of non military measures in Article 41 of the UN Charter, international law only allows the Security Council – and not the US – to impose any sanction against any member states of the UN.
The idea of assigning the sole power to impose sanctions to the Security Council is premised on the following trite doctrine – under international law honouring and respecting the sovereignty of any state is of paramount importance.
In exercising its powers of imposing any sanction, it is the duty of the Security Council to firstly determine under Article 39 of the Charter that a breach of peace or threats to peace or acts of aggression has duly occured. Needless to say the US is not legally bound to consider the demand of Article 39 when it seeks to impose a unilateral sanction via its recent bill.
The word sanction is nowhere mentioned in Article 41 of the UN Charter but that measure may be inferred from the following phrase “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations” which appears in that very Article.
As far as the UN General Assembly is concerned, the underlying objective of sanctions “is to modify the behaviour of a party that is threatening international peace and security and not to punish or otherwise extract retribution”.
According to Anna Segall, in the first 45 years, the resolutions on economic sanctions issued by the Security Council were in only two cases – Rhodesia (1966) and South Africa (1977).
Thereafter – especially in the aftermath of the Cold War – there have been a plethora of collective economic sanctions being imposed on states such as the Security Council’s sanctions against Iraq, the former Yugoslavia, Haiti, Somalia, Libya, Liberia, Angola, Rwanda and Sudan.
It is submitted that any sanction – in particular an economic sanction – which is issued and imposed by the Security Council under Article 41 of the Charter (also known as a collective sanction) would be more effective than any other sanction issued or imposed by parties other than the Security Council.
This is because any resolution issued by the Security Council carrying orders of sanction, will be considered mandatory and binding to all member states. This is clearly spelt out in Article 25 of the Charter.
In examining the “sanctions” that the US reintroduced against Iran (it was not a sanction issued by the SC) after Iran’s “withdrawal” from the Joint Comprehensive Plan of Action (JCPOA), an Oxford Professor namely Prof Antonios Tzanakopoulos highlighted the problem and the weaknesses of the US’ sanction (he called it as a targeted sanction) against Iran, especially the problem of extraterritoriality of “targeted sanctions” and he concluded by saying this: “there is a way to achieve such a global, universal reach of sanctions: through action by the Security Council.”
The success or the failure of a sanction in accomplishing its target and objective would, inter alia, hinge on the high level of participation and cooperation from all member states of the UN originated sanction.
The Security Council backed sanction could be considered to be supreme in the sense that it will supersede any obligations that the member states have under international treaties. This is clearly enshrined in Article 103 of the Charter.
The US has been incessantly championing and promoting human rights around the globe but one wonders whether it fully realises the concern on the scourge of sanction, which revolves around the alleged encroachment on fundamental human rights brought about by sanctions.
The staunch advocates of human rights bemoan that as non-targeted sanctions have infringed the rights of many civilians, the targeted sanctions would equally violate the rights of the targeted individuals thus causing unbearable plight to them as well.
Finally, given the growing chorus of global condemnation against Israel in recent times, it seems that an imposition of sanctions against Israel would be more reasonable and logical. – November 7, 2023
Mohamed Hanipa Maidin is a former deputy law minister in Malaysia as well as a former MP. He was also a practicing lawyer for almost 25 years.