THE ANNUAL KADER ASMAL HUMAN RIGHTS LECTURE

A Tribute to Kader Asmal: Justice for Whom? Contested Notions of the International Justice System by Dikgang Moseneke¹

Thursday 7 November 2024 – Cape Town

Salutations and acknowledgements

Good evening, ladies and gentlemen, friends, compatriots and comrades. I owe my presence at this occasion, to the kind invitation of Lawson Naidoo, the executive director and the board of the Council for the Advancement of the South African Constitution – CASAC.

Let me acknowledge Ms Thandi Matthews, the programme director; Prof Tyrone Pretorious, the VC of University of the Western Cape – my alma mater; the Deputy Ambassador of Ireland, Tim Reilly and Prof Thandabantu Nhlapo for the kind words of introduction. There are many friends and our country women and men. Thanks for coming.

I wish to greet the family, friends and comrades of Prof Kader Asmal. It is a singular honour to me to be asked to deliver the Annual Kader Asmal Lecture. I am proud and privileged to be his praise singer – imbongi. Over many decades Kader Asmal displayed a trenchant faithfulness towards our broader struggle to oust the backwardness of colonialism and apartheid and to help create a just society both at home and indeed across the world.

Global solidarity in pursuit of just peace and freedom was the hallmark of his activism. International law and its justice system became an informed fascination of Prof Kader Asmal, as he sought to confront the injustice of colonialism and apartheid and detested the perennial inadequacy of the international justice system to bring enduring security, peace, self-determination and freedom to the people of occupied Palestinian. As I said, I am here to pay tribute to Prof Kader Asmal. In doing so, I have chosen to ponder over the contested notions of the international justice and whether their present conduct and the uneven architecture of its world bodies or institutions have been fit for the purpose of realising a secure world, free from armed conflict, amongst sovereign nations, big or small, and importantly peoples of the world.

As I pose the question, comes to mind, the armed conflicts after the Second World War; after the formation of the United Nations and after the adoption of Geneva Conventions – Vietnam, Korea, Afghanistan Syria Myanmar, Ukraine, Iran, Libya, Sudan, Lebanon and more pointedly, the armed conflict in the occupied West Bank and the Gaza Strip. This begs the question: is the international national law worthy of our attention and regards?

But first the man whose life and times we are here celebrate. Who is Kader Asmal?

Professor Kader Abdul Asmal² was born on 8 October 1934 and grew up in Stanger in KwaZulu-Natal. Kader is reputed to have met Chief Albert Luthuli whilst a schoolboy. That meeting inspired him and gave him a life-long interest in human rights. Came 1952, when Kader was only 18years of age, he participated in the Defiance Campaign mounted by the African National Congress against apartheid laws. After qualifying as a teacher, he went into exile, where he qualified as a barrister in London and Dublin, and received degrees from the London School of Economics and Trinity College in Dublin. He taught at Trinity College for 27 years (of which 6 years were served as Dean of the Faculty Arts), specialising in human rights, labour law and international law. He helped to form the British Anti-Apartheid Movement and the Irish Anti- Apartheid Movement and was also active in the programmes of the ANC in exile.

With the lifting of the ban on liberation movements in 1990, Kader returned home and was elected to the national executive of the African National Congress. He was a member of its constitutional committee and of the ANC negotiating team at negotiations that led to the interim and final constitutions of our democracy.

In 1994, the first president of our democratic government, President Nelson Mandela, appointed Prof Asmal to serve as Minister of Water Affairs and Forestry and later as Minister of National Education. His interest in and preoccupation with constitutional liberties and freedoms never diminished, and he brought these different aspects of his academic skills and humanitarian passion to bear on all his government portfolios.

When I was approached to deliver this lecture, I remembered, first, that his antiapartheid push from Dublin, Ireland and elsewhere in exile was unequivocally international in outlook. As I intimated earlier, Kader was a founding member of both the British and Irish Anti-Apartheid Movements. The remit of his campaigns for selfdetermination and fundamental rights and freedoms went well beyond the South African domestic claims. The painful poser in Palestine was inexorably on his radar screen. He assiduously studied the Palestinian plight and supported the cause of its Palestinian. It is recorded that, Professor John Dugard, in a liber amicorum for Prof Kader Asmal, utilised his academic contribution to offer a comparison of the sacred trusts of Palestine and Namibia.³

In 1982, Kader served alongside five lawyers⁴ as a member of an International Commission to enquire into Israeli violations of International Law during its invasion of Lebanon.⁵ The Commission made a range of findings against Israel.⁶ I have neither the time today nor the inclination to recite the findings here. Let it suffice to observe that more than 40 years ago, that Commission’s extensive set of recommendations included a call for the compliance with the Geneva Conventions, and, notably, the establishment of a body to ‘clarify the conception of genocide in relation to Israeli policies and practices toward the Palestinian people.’⁷

Prof Asmal and his fellow commissioners, even then, had developed a visionary apprehension that the non-combatant people of occupied Palestine might soon face the spectre of a near wholesale extermination.

Whilst Kader’s formal academic writings focused on the issue of self-determination in the context of South Africa, he was actively engaged with the application of international law in the Palestinian context. In his writings, in 1982, Prof Asmal, debated issues of peace and security in the Middle East and the right of liberation movements ‘to revolt’. He provided a comprehensive account of the developing protections, especially under the Geneva Conventions, afforded to people struggling against occupying and colonial systems.⁸ These protections are a consequence of a robust right to self-determination — ‘without which’, Kader wrote, ‘the right to resistance… is devoid of meaning.’⁹ This reasoning took root, and in time, the United Nations and its agencies, accorded to liberation movements including Palestine Liberation Organisation(PLO), African National Congress(ANC) and Pan-Africanist Congress of Azania express recognition and support.

Of course, this notion of the ‘right to resistance’ by people battling unlawful external occupation has resurfaced and is being re-echoed by resistance groups within occupied West Bank and Gaza and their supporters. In this annual lecture, I mean to pay tribute to Prof Kader Asmal by pondering over contested notions of international law and whether that system does yield just outcomes with reference to Palestine.

In its most basic conception, international law, sometimes called the law of nations, is a body of legal norms, rules and standards that apply between sovereign states and other entities that are legally recognised as international actors. Ordinarily, it includes sets of rules that, states and other actors, feel an obligation to obey in their mutual relations. The rules purport to regulate a broad range of domains notably war, human rights, diplomacy and economic relations.

Unsurprisingly, international law operates through consent since there is no universally accepted authority to enforce it upon sovereign states. It follows ineluctably, that states may choose not to abide by their obligations under international law, and even choose to breach a treaty they have ratified. Similarly, states may fail to or choose not to abide by the judgments of the International Court of Justice (ICJ). In the face of even blatant non-compliance, the ICJ has no authority to enforce its judicial determinations. As the old adage goes, the ICJ, like domestic courts, has neither the purse nor the sword to coerce obedience. Only the Security Council, by a unanimous vote, untrammelled by a veto, may. All security council members must vote for, and none must veto the enforcement measures, That, if you will, is the soft belly of the beast of international law justice system. About that I say more below.

But such violations, particularly of peremptory norms, can be met with disapproval by other states and in some cases, coercive action, ranging from diplomatic and economic sanctions to war.

Before I turn to look a little closer at rules of war under international law, I pause to record the extent to which we, in 1994, as a spanking new member of the international community, wrote into our very constitution a wholesale embrace of international law subject to approval by parliament and constitutional consistence. Our constitution directs that ‘any international agreement becomes law in the Republic when it is enacted into law by the national assembly¹⁰. In another provision our constitution dictates that ‘the Republic is bound by international agreements which were binding on the Republic when the constitution took effect.¹¹ An even broader and open-ended embrace is found in the constitutional provision that ‘customary international law is law in the republic unless it is inconsistent with the constitution or an act of parliament.¹² Even courts are enjoined that when interpreting any statute they must prefer a meaning that is consistent with international law.

So, it seems the default position of our people is to valorise international law and to conform to its dictates, warts and all.

I venture to speculate that our celebrant, Kader Asmal, the professor of international law at Dublin and that high priest of global solidarity, or if you will that doyen of internationalism, would have had more than a passing acquittance with entrenching international law into our constitutional psyche, despite its limping showing in the real international rule of law and its legitimising mission.

I return to speak about the normative scheme that regulates war and in international law system.

In the old-world order, war was a legitimate means to enforce a nation’s claims, legal or otherwise. Conquest and annexation were lawful means of acquisition and hegemony over other states, peoples and their territory. In 1625, Hugo Grotius, that early Dutch writer on international law pronounced: “where judicial settlement ends, war begins”.

States were entitled to wage war to right any legal wrong and the victors of the war had the right to extract territory and treasure from the conquered. In other words, war conferred legitimate and lawful title over people and their property. War was rewarded and not proscribed or punished. We, in the global south, had to live and suffer under the terms of that version of international law of war that was imposed on us by the global north. Our collective lived experiences let us know about first Dutch Occupation of the Cape (1652); the first British occupation of the Cape (1795) and second British occupation of the Cape (1806). These occupations were deemed by the ‘Club of Europe’ to be lawful conquests and annexations that were binding on and to be respected by other nations. The resultant colonialisation and land dispossession were lawful acts of war under international law of the time. The occupying power was entitled to impose its laws and governance and to extract material value in its favour. In turn, the conquered were truly damned.

I now return to speak about war under current international law.

Perplexing as it might sound, modern international law outlaws war, annexation and foreign occupation. It prohibits the use violence or aggression to enforce international law rights and duties subject to a few exceptions. For now, the prominent exception would be waging a war in self-defence and military action (often called peace-keeping missions) at the behest of a valid security council resolution. This means, If any of the permanent members of the security council were to veto any intended coercive measure by the UN, that would be end of the matter. The war in question will rage on.

Even so, the ruling norm of modern international law is that war is impermissible. You might want to point to a legion of prolonged wars – Vietnam, Korea, Afghanistan, Sudan, Iraq, Iran, Syria, Lebanon, Ukraine and the military invasion of occupied Palestine.

Because wars occur nonetheless, international law seeks to regulate armed conflicts. International Humanitarian Law (IHL) is a branch of public international law which seeks to limit the effects of armed conflict; protect those who do not, or no longer directly participate in hostilities; and restricts the means or methods of warfare.¹³ IHL is divided into two general areas: restrictions on methods of warfare (the Hague Law),¹⁴ and the protection of victims of warfare (the Geneva Law).¹⁵ The Hague Law determines the rights and duties of belligerents in the conduct of their military operations and limits the choice of the means of doing harm.

As we have noticed, the Geneva Law deals with the protection of those who directly participate in the hostilities and civilians. Most importantly, the Geneva Law protects categories of victims of armed conflict and expands situations in which the victims are protected. It is important to emphasize that it does not seek to stop armed conflict, nor is it concerned about whether the armed conflict is just or unjust.

The basic axiom of IHL is that the purpose of an armed conflict or armed attack is to “weaken the military potential of the enemy”.16 IHL provides us with fundamental principles that ought to be adhered to by those participating in hostilities: the principle of humanity; the principle of distinction; the principle of necessity, the principle of proportionality and the principle of prohibition of causing unnecessary suffering.

The principle of distinction, which can be found in various provisions of Geneva Law, requires all those involved in armed conflict to distinguish between combatants and the civilians who may not be attacked¹⁷. In turn civilians must not directly participate in hostilities. Combatants are legitimate targets in armed conflicts; civilians are not. Combatants are entitled to engage in armed conflict and, if captured, to be treated as prisoners of war (POWs).

IHL imposes express powers and duties on an Occupying Power in relation to the Occupied Territory such as Israel over Palestine. The Occupying Power is expected to abide by its obligations under IHL. Human Rights organisations have incessantly reported on the conduct of Israeli armed forces that may amount to Israel’s non adherence to IHL and various other rules of international law in general.

As I near conclusion I will do what lawyers and judges in particular do. I will take refuge into two most recent and vital judgments of the ICJ on the Palestine conflict. The expediency is obvious. It would be the Court that speaks and not me seeking to second-guess the Court’s findings or to display personal preferences.

On 19 July 2024, the International Court of Justice issued a unanimous Advisory Opinion titled Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The Advisory Opinion was requested by the United Nations General Assembly. South Africa was amongst the 49 UN member states who delivered a statement to the ICJ on the Advisory Opinion.

The Court found that at the heart of this conflict is the prolonged occupation of the Palestinian Territory by Israel since 1967.¹⁸ The ICJ found that Israel’s occupation of the Palestinian Territory is illegal. The occupation of another state’s territory and the legal consequences of such occupation are not unheard of in international law. However, there are certain IHL rules to which the Occupying Power ought to adhere. The legal consequences have serious implications for the international community as a whole.

The ICJ Advisory Opinion continued to hold that the Palestinian people deserve justice. Justice is one of the foundational principles that inform the UN’s purpose which is to deal with international peace and security.¹⁹

The ICJ found that Israel’s prolonged occupation of the Occupied Palestinian Territory is in breach of international law obligations found in international humanitarian law (IHL), and in breach of jus ad bellum law (law on the use of force) as it relates to the unlawful annexation of certain parts of the Occupied Palestinian Territory. The ICJ also found that the application of Israeli laws and the adoption of measures such as  subjecting the Palestinian people to Israel military courts or law is in breach of the law that regulates the occupation.

On the settlement in the Occupied Palestinian Territory by Israel, the ICJ found that Israel is in breach of several of its obligations under international human rights treaty law. In this regard the ICJ found that Israel breached its obligations found in at least three Covenants as it treats Palestinians differently from Israeli people in terms of its planning policies and practices. This relates to the demolition of property, issuance of building permits, and the separation between the Palestinian people and the settlers transferred by Israel to the Occupied Palestinian Territory. However, the ICJ fell short of calling these acts apartheid. However, one judge in a separate declaration, thought Israel’s conduct amounted to apartheid.

The ICJ also determined that Israel’s settlement policy, annexation of certain parts of the Occupied Palestinian Territory and its discriminatory legislation and measures are in breach of international law – in particular as they relate to the right to self-determination by the Palestinian people in the Occupied Palestinian Territory. The ICJ re-confirmed the right to self-determination as one of the essential principles of contemporary international law. The Israeli policies and practices therefore constitute an infringement of the exercise of the right of self-determination by Palestinian people in the Occupied Palestinian Territory.

The ICJ also addressed the legal consequences of this prolonged occupation by Israel of the Occupied Palestinian Territory for Israel, to Israel, to all member states, and to the UN. In brief, on Israel, the ICJ stated that the prolonged occupation of the Occupied Palestinian Territory is illegal and constitutes an international wrongful act which entails international responsibility.

The ICJ confirmed that Israel:

• has an obligation to put an end to those unlawful acts.
• must immediately cease all new settlement activity.
• has an obligation to repeal all legislation and measures creating or maintaining the unlawful situation including those which discriminate against Palestinian people in the Occupied Palestinian Territory.
• has an obligation to provide full reparation for the damage caused by its international wrongful acts to all natural and legal persons concerned.

The legal consequences for all states:

• they all are under an obligation not to recognise any territorial changes made by Israel from 5 June 1967 in the Occupied Palestinian Territory.
• they are under an obligation not to recognise as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory.
• they are also under an obligation not to render assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory.

The legal consequences for the UN are as follows:

• they are under an obligation not to recognise as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory.
• They are an obligation to distinguish in their dealings with Israel and the Occupied Palestinian Territory.

The UN General Assembly has since passed a resolution endorsing the ICJ’s Advisory Opinion and has urged UN member states to abide by their obligations as declared by the ICJ.²⁰

The UN Security Council, whose primary mandate is to maintain international peace and security and has powers to coerce compliance is yet to pass a resolution on the ICJ’s Advisory Opinion. The United States, a permanent member of the UN Security Council with veto powers, has criticised the ICJ on this Opinion, stating that “the breadth of the court’s opinion will complicate efforts to resolve the conflict”.²¹

Lastly, before my concluding remarks, I record what you know and many watched on television screens. December 2023, South Africa instituted the proceedings against Israel in the ICJ for issuance of provisional measures related the alleged violations of obligations under the Genocide Convention. Whilst enjoying a well-earned holiday on one of our coastal destinations, the South African government wondered whether I would consider accepting a nomination to sit as an ad hoc judge of the ICJ. The statute of ICJ permits any nation to a dispute to nominate an ad hoc judge if that state does not have a citizen sitting permanently on the ICJ bench. I accepted the nomination, so did the retired chief justice of Israel, Ahron Barak.

I had to terminate my sunny holiday for a very cold Hague where I was sworn into serve as an ad hoc judge of the ICJ for several weeks. I might find a moment to write about that experience, but not now as the case is yet to finally determined.

The case is ongoing with South Africa as recent as 28 October 2024 submitting its Memorial constituting evidence to the ICJ.²² Suffice it to say what the public record shows. In the case for provisional measures, in January 2024, I voted along with a unanimous court of other 16 judges ( from 16 different countries including Israel) of the ICJ, barring one dissent, for the prima facie holding that the conspectus of the evidence before that court, properly founded an apprehension genocide against inhabitants of Gaza and that the ICJ issue at least four provisional measures against Israel which included taking all necessary and effective measures to prevent the commission of genocide in terms of article 2 of the Prevention and Prevention of Genocide Convention.

I supported and voted for the recordal in the judgment that of the immediate context of the case was that

“On the 7th of October 2023, Hammas and other armed groups in the Gaza Strip. carried out an attack in Israel killing more than 1 200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. Following this attack, Israel launched a large-scale military operation in Gaza, by land, air and sea, which is causing massive civilian casualties, extensive destruction of civilian infrastructure and the displacement of overwhelming majority of the population of Gaza. The Court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering”.

In its order, the court deemed it necessary to emphasise that all parties to the conflict in Gaza Strip are bound by international humanitarian law and that it is gravely concerned about the fate of the hostages abducted during the attack in Israel on the 7th of October and held since then by Hammas and other armed groups and calls for their immediate and unconditional release.

I am not positing that this is a war between equals and yet it is true that unrestrained violence, on either side, is not a path to peace.

The Middle East needs just and sustainable peace .

In a speech by President Nelson Mandela on the International Day of Solidarity with the Palestinian People in 1997, he famously said

“… we know too well that our freedom is incomplete without the freedom of the Palestinians; without the resolution of conflicts in East Timor, the Sudan and other parts of the world.”

The speech was made a few years after the conclusion of the Oslo Accords. An event which prompted the President to continue, in the same speech:

“We are proud, as humanists, that the international consensus on the need for the implementation of the Oslo Agreements is finding expression in the efforts of the multitude of Israeli and Palestinian citizens of goodwill who are marching together, campaigning together, for an end to prevarication. These soldiers of peace are indeed sending a message to us all, that the day is not far off, when Palestinian and Jewish children will enjoy the gay abandon of children of God in a peaceful and prosperous region.”

How terribly distressing it would be for Madiba and for Kader Asmal,as it is for us, to witness the nightmare of the latest war on Gaza.

There appears to be no hope for an end to the hostilities between Israel and Palestine. But we can’t find our way through this without hope. For a realistic hope, we need to begin with an honest conversation that will aim at accountability and meaningful just peace.

But like Kader Asmal, I believe there is a proper place of legal legitimacy, for the rule of law even amongst nations of the world during a brutal and murderous war. And room for an unending quest to for a better, orderly and just world where all might enjoy peace, human dignity and self-realization.

Perhaps the most perceptive feature of Kader Amal’s work on the Middle East was his insistence on the value and importance of utilising international law in furthering any cause for liberation. Reflecting on the disillusionment of his students towards international law and its relevance, Kader astutely kept distinct, the defective implementation of international law due largely to ideology, power and its related arrogance or the absence of will, from its legitimating function. For Kader, this was not merely an academic opinion, but an internalised article of faith and necessity.

As I conclude, I let Kader Asmal speak for himself:

‘Again and again, ordinary witnesses [in the Middle East] invoked legal prescriptions and looked to them to provide remedies. This was not quietism, though. Struggle encompassed reliance on the law and provided legitimacy to their cause.’²³

It is indeed so. Even in the darkest of hours we must grope for hope as we cling to legitimising principles of the world we cherish.

Thank you for listening. Good night.

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1 I am grateful for the research support and notes of Prof Ntombizozuko Dyani-Mhango, Professor of International Law & Head of the Department of Public Law at the University of Pretoria and of Adv Adila Hassim SC of Johannesburg Society of Advocates.
2 Retrieved, with minor adjustments, from CASAC’s website (https://casac.org.za/kader-asmal-lecture/).
3 J Dugard ‘A Tale of Two Sacred Trusts: Namibia and Palestine’ in T Maluwa (ed) Law, politics and rights: essays in memory of Kader Asmal (2013) 287-305 (available here).
4 Its other members were Sean Macbride (President of the International Peace Bureau, Geneva), Richard Falk (Professor of International Law at Princeton University), Brain Bercusson (Lecturer in Law at the University of London), Geraud de la Pradelle (Professor of Law at the University of Paris), and Stefan Wild (Professor of Semitic Languages and Islamic Studies at the University of Bonn).
5 ‘Israel in Lebanon: Report of the International Commission to Enquire into Reported Violations of International Law by Israel during Its Invasion of the Lebanon’ Journal of Palestine Studies 1983 12(3) 117-133 (available here).
6 See ibid at 131.
7 Ibid at 132.
8 See Kader Asmal, The Legal Status of National Liberation Movements (with Particular Reference to South Africa), 15 ZamLJ 37 (1983) (available here).
9 Ibid at 41-42. Kader described the right to self-determination as ‘a recognition of the collective rights of a national entity who are accorded rights under the Charter and under international law. The recognition of the rights of a people is important as it presupposes that such rights will be or can be pursued or vindicated through the instrument of a public body known as a national liberation movement and that the struggle itself is thereby accorded a legal status in international law.’
10 Section 231(4)
11 Section 231(5)
12 Section 232
13 The ICJ in the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 8, 1996, ICJ Rep. 1996, p. 226 at para 78 re-emphasized the two cardinal principles of IHL as follows: “The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.”
14 The Hague Law constitutes the Hague Convention (II) on the Laws and Customs of War on Land, 1899 and the Hague Convention (IV) on War on Land and its Annexed Regulations, 1907.
15 Geneva Law consists of four conventions adopted in 1949: the Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces; the Convention (II) on Wounded, Sick and Shipwrecked of Armed Forces at Sea; the Convention (III) on Prisoners of War; and the Convention (IV) on Civilians; and t Additional Protocols to the Geneva Conventions, 1977: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1); and the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
16 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868 (St Peterburg Declaration of 1868), preamble states that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”.
17 The principle of distinction is codified in art 48 of Additional Protocol I which is applicable in international armed conflict and provides that “The parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Art 51(3) of Additional Protocol I also prohibits civilians from taking part in hostilities. Article 3 common to all the Geneva Conventions and applies to non-international armed conflict provides that “persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall at all times be treated humanely.”
18 See the general context on the conflict between Israel and Palestine in the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, ICJ, 19 July 2024, paras 51-71. There are three separate but related processes that deal with Israel’s occupation of the Palestinian Territory. The two ICJ cases – the Advisory Opinion mentioned above; the contentious case of The Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) to determine whether Israel committed genocide against the people of Gaza; and the referral of the Situation of Palestine to the International Criminal Court (ICC) Prosecutor by South Africa alongside other state parties to the Rome Statute such a
19 Article 1(1) of the UN Charter (1945) states that one of the purposes of the UN is “[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. (emphasis added)
20 See, UN General Assembly 10th Emergency Special Session – Advisory opinion of the ICJ on the legal consequences arising from Israel’s policies and practices in OPT, including East Jerusalem, and from the illegality of Israel’s continued presence in OPT – (A/ES-10/L.31/Rev.1) – Adopted, 13 September 2024, available at <https://www.un.org/unispal/document/ga-draft-resolution-advisoryopinion-of-icj-13sep24/>.
21 See, Kanishka Singh “US criticizes ICJ opinion on Israeli occupation of Palestinian territories” Reuters, 20 July 2024, available at < https://www.reuters.com/world/us-criticizes-icj-opinion-israelioccupation-palestinian-territories-2024-07-20/>.
22 See, Department of International Relations and Cooperation Media Statement “South Africa delivers evidence of Israel genocide to the ICJ”, 28 October 2024, available at < https:/dirco.gov.za/south-africa-delivers-evidenceof- israel-genocide-to-icj/>.
23 Kader Asmal ‘Review: The Palestine Problem in International Law and World Order by W. Thomas Mallison and Sally V. Mallison’ (1988) 10(2) Third World Quarterly 1059-1062 (available here).