1. INTRODUCTION
One of the primary purposes of law, and international law is the resolution of disputes. International disputes are an inevitable aspect of international relations since their primary causes are deeply ingrained in the international community and the decentralised system of international law. Article 2(3) of the United Nations Charter unequivocally mandates the peaceful resolution of international disputes. Although this clause primarily applies to UN members, every state is obligated to abide by it as a matter of customary international law.
The concept of non-use of force, as stated in Article 2(4) of the UN Charter, was affirmed by the International Court of Justice (ICJ) in the Nicaragua case of 1986. The definition of an international dispute, given in the 1924 Mavromatis ruling , “A disagreement over a point of law of fact, a conflict of legal views or of interests between two persons” by the Permanent Court of International Justice, is often cited.
The Mavromatis formula and its variant have been repeatedly confirmed in the ICJ jurisprudence. There is no assurance that a single method can resolve every case of an international issue due to its complexity, and finding solutions that balance national interests and international legal norms has become the need of the hour.
The Arab-Israel conflict has been a burning issue of international geopolitics since the start of the 1920s. The roots of the current issue have been attributed to the support of the Arab League for Palestine in the long-standing conflict between Israel and Palestine, which escalated in recent times by the arms conflict between Hamas and the State of Israel. The roots of all conflict lie in tensions between Zionism and Palestinian Nationalism.
2. HISTORY OF RELATIONSHIP BETWEEN ISRAEL AND SOUTH AFRICA
The present case of South Africa versus Israel results from a long-standing history between the two nations that goes as far back as the pre-independence era of South Africa. However, two conflicting situations existed within the pre-apartheid Pretoria. These two situations existed on completely opposite ends of the spectrum.
In 1948, the National Party (NP) in South Africa introduced a policy of racial segregation known as Apartheid that changed the course of South Africa’s history forever. On paper, these policies aimed at “preserving and safeguarding the identity of the Indigenous peoples as separate racial groups,” however, it only resulted in gross inequality, facing brutal criticism and resistance by countrymen, communities and other countries.
In the early 1980s, the Prime Minister of South Africa, P. W. Botha, was building a close relationship with the then-defence minister of Israel, Ariel Sharon. According to some declassified documents, governments of Apartheid South Africa and Israel entered into agreements for weapons trade around the same time. Israel opposed the declassification of this agreement since the mere existence of this agreement was classified. Yet, South Africa decided to declassify this agreement at the request of a researcher.
3. HISTORY OF SOUTH AFRICA AND PALESTINE
When the ANC leader and the face of the anti-apartheid movement, Nelson Mandela, was released from prison, one of the first persons he met was the Palestine Liberation Organisation leader Yasser Arafat in Zambia.
“Our freedom is incomplete without the freedom of the Palestinians”
The essence of these words, spoken by Nelson Mandela, still holds a dear place in the hearts of most South Africans, the ruling party, and the African National Congress. The case filed in the International Court of Justice against Israel is a testament to the solidarity of South Africa with Palestine.
However, not all South Africans agreed with this solidarity. Many groups, including most Jewish communities in South Africa, came forward in support of Israel and considered the stance of the ANC to be antisemitic. Moreover, the ANC’s opposing party, the Democratic Alliance (DA), a right-leaning party, and its supporters were critical of the ANC’s action, even though they released a statement wherein they asked Israel to abide by the ruling of the International Court of Justice. This was not the end of the criticism. The Patriotic Alliance (PA), yet another right-wing party, ridiculed ANC’s move, giving it the title of a joke.
4. APARTHEID IN PALESTINE
The solidarity expressed by South Africa stems from a sense of knowing. South Africa related to the suffering of Palestinians and understands their positions, seeing parallels between their own struggle and the condition of Palestinians. The question for consideration arises whether the military occupation of West Bank by Israel can amount to apartheid or whether the situation is more complex than what meets the eye.
The International Convention on the Suppression and Punishment of the Crime of Apartheid came into effect on July 18, 1976, which defined the crime of apartheid as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” The same principle has also been incorporated in the Rome Statute of the International Criminal Court which declares it as a crime against humanity. The point to be noted is that Israel is not a party to either the Apartheid Convention or the Rome Statute, however, since Palestine has signed both treaties, Israel’s actions in Occupied Palestinian Territory subject the state to these treaties.
The first question that is raised while debating whether apartheid is the right term to refer to the situation in Palestine is whether Palestinians can be considered a distinct racial group. The term racial group has surely evolved from its scientific meaning in the eyes of the law and includes a broader group identification that may form the basis of discrimination.
In the case of The Prosecutor v. Vidoje Blagojević and Dragan Jokić, which was heard by the International Criminal Tribunal for the former Yugoslavia (ICTY), it was held that, “a national, ethnical, racial or religious group is identified by using as criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.”
The International Convention on the Elimination of All Forms of Racial Discrimination also explores a wide and broad meaning of the term racial discrimination, which may include “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin.”
This consideration is important while analysing the case of Palestine due to the fact that West Bank includes residents who are Jews and Palestinians and it is a difficult task to assign the definition of the term “race” in this situation, unlike South Africa. it would be wrong to categorise Palestinians as a race on the basis of religious identity as religion is not a defining factor of Palestinian identity. The discrimination of Palestinians has been based on their “non-Jewish” identity.
Ever since the occupation of West Bank by Israel, there has existed a policy of land confiscation, dispossession and settlement along with separation of Israelis and Palestinians. Palestinians in this region have faced decades of forceful violation of their rights including citizenship and voting rights. There also exist two separate justice systems which dictate the substantive law based on the person’s nationality. This significantly violates Palestinians’ right to fair trial and due process, including harsh punishments for minor crimes.
The violation of human rights are also imposed on children who are tried as adults in the court of law after the age of 16 and every year over 500 children are prosecuted in the Israeli courts. Israel has further criminalised several Palestinian civil society organizations for “unlawful association”, who have been vocal advocates of Palestinian rights and legal aid. This action has been widely criticised by multiple international organisations. This significantly curtails the rights of Palestinians, who are now unable to receive even a little legal aid.
Palestinians in the West Bank have been constantly failed by the authorities who have failed to protect even basic human rights and have actively participated in the commission of inhuman acts, all in the attempt to dominate the region and suppress the Palestinians. Article 2(a) of the Apartheid Convention relates to depriving members of racial groups to the right to life and liberty of a person. It can be conclusively argued that Israel’s actions have deprived Palestinians of their right to life and liberty.
Michael Sfard argue that Israel’s governance in the West Bank meets the definition of apartheid under the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. Sfard emphasizes that apartheid is not only a historical reference to South Africa but a legal framework that describes institutionalized racial domination and oppression. However, scholars such as Eugene Kontorovich argue that such an allegation is baseless and full of falsehoods. Eugene Kontorovich points to the security threats to Israel that have prompted Israel to take these measures. He draws a comparison to the South African baseline for determination of baseline. However, the broad meaning given to racial discrimination does involve the situation in West Bank.
5. SOUTH AFRICA’S UNIQUE STANCE
At present, South Africa and the ANC occupy a rare and often strategically exploitative moral and historic position in the global dialectic on apartheid, due to the historical experience they must now own of a disenfranchising institutionalized form of racial oppression and centuries of struggle for liberation. Accordingly, the decades-long ANC struggle against the apartheid regime, culminating in the dismantlement of that oppressive state in 1994, gives a miraculous but certain legitimacy to the South African state to speak out against similar acts of oppression in most other corners of the world. In this regard, it is always vital to understand the context behind why South Africa sees itself as an agent of morality in the global political landscape, especially while condemning other regimes in similar fashion.
When the history of South African oppression through apartheid is surveyed, one is implicated in a mental process beginning to take upon such memory and events as racism, segregation, and much violence towards millions of Black people as the years dragged by from 1948 to 1994. The most eminent leaders challenging the oppressive regime included Nelson Mandela, whose leadership was turned into a personal jihad by the ANC fighting against apartheid at a great cost, including imprisonment, exile, and brutality. Finally, the world accepted the Satyagraha for the ANC as a just fight against the apartheid regime, mass sanctions, and some diplomatic isolation applied against it. The end of apartheid through negotiations as opposed to armed struggle is the immense practical satisfaction reported from the success of justice, peace, and international contribution.
Palestine-South Africa relations can actually be traced back to the early 20th century, when the ANC was created and when the South African population learned of the Palestinian plight and sympathized with the cry for justice. In contemporary parlance, the ANC considers Israel’s oppression in the occupied Palestinian territories as being on par with apartheid crimes against South Africa. This time-tested bond was sealed by the Nelson Mandela quote “We know too well that our freedom is incomplete without the freedom of the Palestinians” already witness to years of deep-seated oppression and one another’s resistance. The situation was made stronger with the present knowledge that Israel had extensive military and economic ties with the South African white-minority regime during apartheid, which still serves as a moral barometer for South Africa’s global standing today.
The ANC government of South Africa has invariably set itself before the world as a champion against apartheid-like practices. The submission of a case before the International Court of Justice against Israel for the supposed genocide of Gaza has served to bolster this diplomatic and moral campaign. This move has drawn opposition from some within South Africa and overseas. However, it barely dented South Africa’s commitment to human rights, decolonization, and justice.
Drawing on its own experiences, South Africa seeks to remind the world that apartheid is not a fading memory of the past but one of the enduring struggles clad in new forms. Its position at the heart of international discourse against apartheid is no mere symbolism; it is a call to moral duty stemming from history.
6. ISREAL V. SOUTH AFRICA
On 29 December 2023, the Republic of South Africa brought proceedings against the State of Israel regarding the violation of the Convention on the Prevention and Punishment of the Crime and Genocide (Genocide Convention) in the Gaza Strip located in the Middle East, during the conflict between Israel and the militant group Hamas, which controls the region of the Gaza Strip. Hamas launched a full ought to attack on Israel on October 7th, 2023. South Africa seeks jurisdiction under Article 36, Paragraph one of the statutes of the Court and on Article IX of the Genocide Convention. The International Court of Justice (ICJ) is not a body that prosecutes individuals and interferes with the proceedings of the International Criminal Court. The public hearing of the concerned matter took place at the Peace Palace in The Hague on the 11th and 12th of January.
6.1 SOUTH AFRICA’S POSITION
Under international law, genocide is considered a crime, as reaffirmed under Article I of the Convention on the Prevention and Punishment of the Crime of Genocide. Article II of the same convention defines genocide as:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group
As a dignitary of the convention, the concerned State brought the case against Israel. South Africa asked the International Court of Justice (ICJ) to issue an interim legal injunction compelling Israel to halt its armed actions in and against Gaza. The decisions of the ICJ are only binding on the parties of the case, and that it also has no power to enforce them without the intervention of the United Nations Security Council. Furthermore, President Cyril Ramaphosa likened Israel’s conduct to apartheid.
Genocidal actions alleged in the suit included the mass killings of people of Gaza, destruction of their homes, forced immigration towards the southern part of the strip, and blockade of roads providing food, water, and medical aid to the region. Statements made by prominent leaders and military personnel of Isreal, including Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant, were submitted to the court as these statements constitute direct and public incitement, which has gone unpunished. South Africa requested nine provisional measures of protection
● Suspension of military operations
● Prevent Genocide
● Desist from killing, injuring, destroying life, and preventing births
● Prevent displacement, deprivation, and the destruction of life
● Desist from incitement, and punish acts of and encouragement to genocide
● Prevent the destruction of and ensure the preservation of evidence
● Submit ongoing reports to the Court on measures taken
● Refrain from aggravating the situation
6.2 ISRAEL’S POSITION
After filing the case, Israel’s foreign ministry outrightly rejected the allegations “with disgust,” stating that it operates with the provisions of international law and its military operation is solely focusing on Hamas and not the people of Palestine and Gaza, asserting that it has taken maximum steps to prevent any destruction or harm to civilians. Israel’s Foreign Ministry alleged that South Africa is functioning as the legal arm of Hamas. Meanwhile, the Israeli Prime Minister argued that Hamas wanted to commit Genocide against the people of Israel and that nobody, including the Hague, could stop Israel from continuing its actions in Gaza. Israel Defence Forces (IDF) has taken actions to minimise human causalities, as it is a war against Hamas and not the people of Israel. The state of Israel argues that this is an act of self-defence in accordance with the international law against the Hamas-led attack on 7th Oct 2023, which claimed almost 1200 lives and abducted hostages with scenes of destruction and bestiality. Acknowledging the high count of civilian deaths, Israel stated that the reason for this is the use of civil infrastructure by Hamas to hide and use innocent civilians as human shields. On legal grounds, the Israeli team argued that the court has no jurisdiction over this case as there is no dispute between the concerned country and South Africa. It further argued that South Africa has failed to prove intention, which is a fundamental element of genocide, which is the subject of the complaint, to fall into the Genocide Convention. Israeli team maintained that the requested provisional measures would deprive Israel of its obligation under international law to provide defence to its citizens, to the hostages, and over 110,000 internally displaced Israelis.
6.3 INITIAL RULING
In its initial ruling on 26 January 2024, the court accepted the plausibility under the Genocide Convention and found that it had prima facie jurisdiction to adjudicate the dispute. The court clarified that this was not a ruling to prove whether Israel had breached the convention. The court decided that these Palestinians have plausible rights to be protected from genocide, and South Africa has the right to bring the claim in the court. In the court’s view, acts and omissions alleged by South Africa have happened in Gaza and might fall under the purview of the genocide.
7. REQUEST FOR ADDITIONAL MEASURES
● An “urgent request for additional measures under Article 75 (1)” was made by South Africa on February 12, 2024, in anticipation of an Israeli military ground invasion of Rafah, citing “developing circumstances in Rafah”. South Africa asserted that the Rafah offence violated the court’s interim decision and the Genocide Convention.
● To address the poverty and suffering in Gaza, South Africa submitted a second request for more measures on March 6. This appeal asked the court to impose extra emergency measures, including requiring Israel to deliver humanitarian assistance. Due to the urgency of the situation, South Africa petitioned the court to strengthen the interim measures to avert widespread malnutrition, sickness, and famine in the Gaza Strip.
● South Africa asked for more temporary measures on May 10, 2024, to shield the people of Rafah from an Israeli attack in that region. On May 16, South Africa made oral arguments in favour of these interim measures, while Israel made oral arguments the next day.
8. 2024 GENERAL ELECTIONS
The 2024 general election of South Africa proved to be a turning point in the history of the ANC. The primary reason behind this was that ANC had to defend itself from criticism it faced from its population for poor living conditions, unemployment and poverty. The result was that for the first time since South African independence, ANC failed to achieve a majority and was compelled to join forces with the Democratic Alliance and Patriotic Alliance, along with some other smaller parties.
After the election results, questions were raised about how foreign policy would be governed, specifically on the issue of Israel. The ANC made its stance abundantly clear that it will not sway away from its complete support of Palestine. Initially, it was stated that the Democratic Alliance would maintain its position and give steadfast support to Israel, but they changed their position to maintaining neutrality and advocating for peace.
The coalition agreement stated:
“Foreign policy based on human rights, constitutionalism, the national interest, solidarity, peaceful resolution of conflicts, to achieve the African Agenda 2063, South-South, North-South and African cooperation, multilateralism and a just, peaceful and equitable world.”
Regardless of ANC’s pro-Palestine stance, it is dependent on the somewhat pro-Israel Democratic Alliance to remain in power. However, the position of the Democratic Alliance has become unclear and ambiguous regarding its support of Israel. A situation could arise in the near future wherein the ANC-led government still supports Palestine but compromises how they express their support and solidarity. They may have to resort to a more diplomatic approach and advocate for ending the war instead of pursuing legal action against Israel.
9. A WAY FORWARD
“It’s now or never”; the clock is ticking as the people of Palestine and Israel collectively suffer from continuous war and violence. This path towards a peaceful coexistence can only be found by reaching a mutual compromise between both countries. It is time for both Israel and Palestine to prioritise dialogue over violence.
The ongoing conflict between Israel and Hamas has led to catastrophic losses on both sides. The Hamas attack of Oct 7, 2023, the deadliest one that Israel has faced since its founding, has caused unfathomable suffering to the Israeli people, especially the families of the hostages. Furthermore, Israel’s response to this attack by stopping the humanitarian aid to the Gaza Strip further exacerbated the tensions between the two countries. As the situations grow dire daily, many countries and international bodies call for a sustainable solution. The innocent victims of this war also deserve to live a peaceful and dignified life in safety and peace, one that can only be achieved by diplomacy and dialogue. The following guiding idea ought to be incorporated into the peace process:
9.1 Adherence to International Law:
The authors of Universal Human Rights have noted that when serious human rights abuses are permitted to occur without consequence, wars are more likely to break out. International law places a strong focus on peaceful coexistence and shared humanity.
9.2 Immediate Ceasefire:
All sides should seek out a ceasefire immediately. The larger international community has a significant impact on ending this conflict. There is no military answer to this issue, and the sooner the violence ceases, the sooner a solution may be created.
9.3 Palestinian Governance:
There must be a rapid and inclusive transitional governing process for the Palestinians in Gaza. To do this, Israel must be prepared to terminate its occupation in accordance with the values expressed in Resolution 242 and 338 of the UN Security Council, as well as recognition of a Palestinian state The Palestinian people should decide on any future resolution using a democratic method.
9.4 Ending forced displacement and Blockade:
The expropriation of Palestinian territories that have been occupied since 1967 is one way that Palestinians should not be compelled to leave their homes. Humanitarian supplies should be permitted, and the barrier on Gaza should be lifted. unrestricted access, the restoration of vital services, and the absence of Israeli Soldiers in Palestine.
If these fundamental ideas are embraced, the cycle of violence can be broken. We have to make a commitment to never again permit such violent outbursts to occur, and we have to step up our efforts to ensure a fair peace for all of the region’s resident.
10. CONCLUSION
The existing literature on the South Africa v. Israel case is deeply preoccupied with legal arguments in the Genocide Convention, geopolitical interests, and apartheid analogies. Our paper highlights a vital lacuna in the debate—namely, the selective application of international law in highly politicized cases, which is vulnerable to the power politics of global governance. While most analyses are preoccupied with the legality of South Africa’s complaints or Israel’s counter-complaints, this perspective highlights the structural biases of international law that shape the resolution of such complaints.
The conventional narrative describes the International Court of Justice (ICJ) as a neutral umpire of international disputes. This analysis, however, complicates this assumption by examining how the enforcement of ICJ judgments is based on the geopolitical interests of powerful states, i.e., those on the UN Security Council. While the ICJ’s initial ruling recognized South Africa’s complaints as “plausible,” the court’s ability to enforce any subsequent judgments is dubious. This is an inherent vulnerability—while international law is effective in its enforcement against weaker states, it is severely tested in holding powerful actors to account, who use diplomatic and military tools to evade legal obligations.
Finally, the analysis departs by looking at the implications of South Africa’s legal case more broadly beyond the particularities of the Israel-Palestine conflict. The case is a turning point in the development of international humanitarian law, setting precedent for the manner in which states bring claims for genocide. If the ICJ rules substantively in South Africa’s favour, it will embolden other states to use legal channels against perceived international crimes, testing the prevailing power structures that define legal accountability.
Finally, the argument departs from the particularities of the case to critique the effectiveness and limits of international law itself. By situating the ICJ’s role in a wider geopolitical framework, I hope to show that the case of South Africa v. Israel is not a matter of legal dispute but of whether international law can be an independent tool for justice or an instrument of selective enforcement
