In light of ongoing disputes and conflict between the Palestine and Israel, Israel has been under heavy scrutiny by international community especially the Muslim’s. Malaysia is one the countries that consistently supports the plight of the Palestinians and condemn the atrocity by the regime towards Palestine people in Gaza. In fact, Malaysia does not recognise the establishment of the Israeli State and has no bilateral and diplomatic relations between the two nations.
Recently, there was an issue concerning the allegation of espionage activities by the Israeli civil aircraft over Malaysian airspace. On 19 May, the alleged spy aircraft Boeing 732-400 with registration number of 4X-AOO owned by Israel Aerospace Industries-Elta (IAI-Elta) flew over Malaysian airspace from the northern approach of the Straits of Malacca to the Klang Valley airspace before landing at Singapore.
The incident sparked two main debates. First, why and how the Israeli aircraft can fly over Malaysian airspace despite of no diplomatic relations between two countries. Second, the need of thorough investigation on the allegation of the said aircraft equipped with intelligence gathering technology. The latter was triggered by earlier claim of news from Israeli television that the country will carry out attacks against terror operatives around the world. The news mentioned “the Israeli leadership has ordered the country’s secret services Shin Bet and Mossad to eliminate top Hamas officials inside and outside of the country, which Malaysia was named alongside Iran, Turkey and Qatar as among countries that host, finance and train Hamas officials”.
Following to the threats, the Malaysia Government on 16 May 2021 via its Home Minister Hamzah Zainudin issued a statement that Government took seriously the threats and that police and other security agencies have stepped up security measures to maintaining public order and the safety of Malaysians, including the Palestinians in the country. For record, in 2018, Fadi Mohammad al-Batsh, the engineer, lecturer and Hamas member was shot in Kuala Lumpur by two men believed to be assassins hired by the Israeli intelligence service.
Now, let’s discuss on the first primary issues – why and how the Israeli aircraft can fly over Malaysian airspace. Although Malaysia does not recognise Israel, as a part of large international community, Malaysia still has to encounter with Israel in several international treaties and conventions in view of Israel recognition by the United Nations. There are two parts of overflight rights exercised by the aircraft based on different international laws. The first part – Israeli aircraft flight over the Straits of Malacca which Malaysia is one the littoral State – is based on the right of transit passage provided by the United Nations Convention on Law of the Sea (UNCLOS) 1982 as the Straits considered as Straits Used for International Navigation (SUFIN). Article 38 of the UNCLOS granted the Israeli aircraft to enjoy the right of transit passage in the continuous and expeditious manner. Malaysia is a member of the UNCLOS since 1996 and albeit Israel is not member, it recognised the Convention as a customary international law.
The second part is where the Israeli aircraft flew over national space which literally over airspace of land of Klang Valley including Putrajaya, the Malaysian Federal Government administrative centre. Although Malaysia has no diplomatic relations with Israel, it is important to recognise that both countries are State party to the International Air Services Transit Agreement (IASTA) 1944. Upon signatory of the Agreement, each contracting State shall grants to other contracting State the freedom of the air that includes the privilege to fly across its territory without landing. It is important to understand that the permission to fly is not equal with the permission to landing. Although IASTA provides the right to the contracting State to fly over other territory respectively which generally take place in reciprocity, it is not absolute as the Convention on International Civil Aviation 1944 or Chicago Convention recognises the exclusive sovereignty of every State over its airspace above its territory. The State territory is deemed as airspace over its land areas and up to 12 nautical miles from the coastal line (territorial sea). The other important point to note is the Agreement and Convention are only applicable to civil aircraft and not applicable to state aircraft. The Convention also pointed out the obligation of each contracting State not to use civil aviation for any purpose inconsistent with the aims of the Convention which includes the military activities such as spying that may disqualify the entitlement of the aircraft under the Agreement and Convention albeit it declared as a civil aircraft.
The second primary issue is on allegation of the Israeli aircraft equipped with intelligence gathering technology and carried out spying activities when it flew over Malaysia airspace. While it is difficult to officially verify the claim, the source from Malaysian senior commercial pilot suggested the aircraft might not be equipped with the said intelligence gathering technology for the spying purpose. It is understood that the aircraft aged 30 years and was first owned by the national carrier of Malaysia, Malaysia Airlines in 1991 with registration number of 9M-MJE. The aircraft ownership has changed several times before bought by IAI-Elta 10 years ago. The aircraft destination was to Singapore for the commercial product demonstration which believed to be the military electronic technology on the invitation of Singapore defence technology company, ST Engineering.
While the incident invited Malaysian public outrage and critics with the Government keep on silent on the issue, after more than a week, the Government via Ministry of Transport issued a statement confirming that the aircraft was flying over Malaysian airspace and given permission in accordance with the rules and conditions by the International Civil Aviation Organisation (ICAO). The statement also reaffirmed that the aircraft was transit in continuous and expeditious manner without any prejudice to the national security and sovereignly of Malaysia.
Following to the statement, many felt that Malaysian Government position on the Israeli attacks over Palestinians would be further strengthen and consistent if the Government imposed ban or sanction over the aircraft from flying over Malaysian airspace. There are other alternative routes – which might be longer – could be taken by the Israeli aircraft to travel to Singapore should Malaysia bans the aircraft. Nevertheless, the aircraft is said to be departed from Singapore on 31 May evening believed to take different route away from Malaysian airspace by flying over the South China Sea – eastern coast of Malaysia – before diverted over Thailand airspace.
