ince initiation of Israel’s barbarous attacks, causalities in the unjustified war against Palestinians have crossed 35,000. South Africa on December 29, 2023 filed a case against Israel in the International Court of Justice to prevent genocide of the Palestine by Israel authorities. In the application before the ICJ, South Africa claimed that Israel, in continuation of its past practice, was committing genocide of Palestinians in the Gaza Strip, contravening the Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide, 1948). South Africa also submitted that Israel had completed 75 years of apartheid, 56 years of illegal occupation and 16 years of blockade of the Gaza strip. South Africa sought following reliefs from the ICJ against the State of Israel and sought following directions against Israel:

1. Suspension of military operation against Palestinians forthwith

2. Immediate stoppage to genocidal measures

3. Desist from killing, injuring and destroying Palestinian life and preventing births

4. Israel should prevent displacement, deprivation and destruction of life

5. Desist from incitement to genocide

6. Punish acts of genocide

7. Prevent the destruction and ensure protection of evidence of Israeli atrocities

8. Submit ongoing reports to ICJ on measures taken pursuant to the directions of ICJ

9. Refrain from aggravating the situation

The ICJ was pleased to order provisional measures in terms of the prayers sought as mentioned above. However, Israel refused to abide by the clear directions of the ICJ and continued its actions.

Many other countries have now filed intervention applications before the ICJ to join South Africa against Israel. Article 63 of the Genocide Convention states that any signatory to the Genocide Convention can intervene in a case because it is an international treaty, whose interpretation impacts all parties. Pursuant to this Article Mexico, Egypt, Columbia, Libya and Nicaragua have filed applications before the ICJ to join and support South Africa in its application against Israel. It may be added that Mexico’s decision adds to Israel’s international isolation. The International Criminal Court chief prosecutor Karim Khan has already applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for war crimes and crimes against humanity.

In this scenario, it may be recalled that pursuant to Resolution Number 18 (II) of November 1947 of the United Nations General Assembly, Israel proclaimed its statehood on May 14, 1948. The UNGA resolution had recommended the creation of independent Arab and Jewish States and a special arrangement for the city of Jerusalem. Currently, out of 193 members of the United Nations, 165 recognise Israel de jure. Out of the 56 Muslim countries who are members of the UN, a majority recognizes Israel de facto.

Israel, a racial-confessional nation, bases its claim on Palestinian land on a unique, rather idiosyncratic, basis. It points to Old Testament’s first book, Genesis, to found its claim over Palestinian lands.

However, there is no consensus regarding the exact location and area of the Promised Land. Another issue with the narrative is that if the Promised Land was their eternal home, then how come most of the Jews remained away from it for hundreds of years? It has been suggested that the grant of Promised Land was not in perpetuity but subject to continued good conduct. Therefore, it appears that Israel’s contemporary claim to the Promised Land is misconceived.

The permissibility of armed resistance by a population illegally occupied, such as Kashmir or Palestine, is acknowledged in international law by consensus of juristic opinion. It arises from the basic right to self-determination recognised by the UN Charter.

Under international law, which does not recognise the historical-religious territorial claim, Israel is occupying Palestinian territories illegally. The UN Human Rights Council mandated a commission in May 2021 to “investigate, in the Occupied Palestinian Territory, including East Jerusalem, and in Israel, all alleged violations of international humanitarian law and all alleged violations and abuses of international human rights law leading up and since 13 April 2021.” The commission submitted its 28-page report with detailed evidentiary annexures to the UNGA in October 2022. The commission concluded that Israeli occupation of Palestinian territory was unlawful under international law. It further highlighted that under international humanitarian law the occupation of territory in war time is a temporary situation. This does not deprive the occupied power of its statehood nor its sovereignty. The commission has requested the UNGA to elicit an Advisory Opinion from the International Court of Justice on the legal consequences of Israel’s continued refusal to end its occupation of the Occupied Palestinian Territory.

It may be pointed out that the permissibility of armed resistance by a population illegally occupied, such as Kashmir or Occupied Palestine Territories, is acknowledged in international law by consensus of juristic opinion. It also arises from the basic right of self-determination recognised by the UN Charter. Many UNGA resolutions (eg 2649/1970, 3171/1973, 3314/ 1974 (Art 7) & 37/46 of 1982) recognise this right to armed resistance. The principle of armed resistance has now become a part of customary international law binding on all states.

In spite of all this, there have been continued efforts to patch up difference by give and take. There have been many failed milestones in Palestine-Israel relations and efforts to find a durable solution between two beleaguered communities. In principle, the two states solution has been recognised by both communities. However, Israel has refused to deliver on its part of the agreement and is still occupying Palestinian territories. The situation has deteriorated to the extent that the Amnesty International on February 1, 2022, released a report with the title Israel’s Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity.

In 2002, under the Arab Peace Initiative, the Arab League proposed the recognition of Israel by Arab countries as a step towards the permanent resolution of the Israeli–Palestinian conflict. This proposal recommended normalisation of relations by the Arab world with Israel, in return for a full withdrawal by Israel from the Palestinian occupied territories and a fair settlement of the Palestinian refugee problem based on UNGA Resolution 194/1948 and the establishment of a Palestinian state with East Jerusalem as its capital.

Recently, Abraham Accords were signed and implemented between Israel, the United Arab Emirates and Bahrain in 2020 for normalisation of relations. Saudi Arabia was reportedly making serious efforts in 2023 for normalising its relations with Israel. In Pakistan also, normalisation of relations with Israel has been proposed. Recent reports have suggested some trade between the two countries though on an insignificant level. However, recent hostilities and civilian deaths on both sides have dealt a serious blow to such prospects.

Several generations of Israelis and Palestinians have suffered on account of the continued hostility. It is time to revive efforts in the spirit of Arab Peace Initiative 2002 proposed by the Arab League as mentioned above. All Muslim states, under the aegis of the Organisation of Islamic Countries, should enter into meaningful negotiations with Israel. The escalating bloodshed makes this an urgent concern.

An independent Palestinian state, having recognised international boundaries, government and effective control over its population, must be allowed to materialise. Israel must pay compensation to the affected Palestinians and war crimes committed by both sides must be investigated and dealt with under applicable legal procedure.

The writer is a former federal minister of law, justice and parliamentary affairs and a former chairman of the United Nations Human Rights Advisory Committee