Business Day

Palestine ‘brings memories of SA’ sstruggle’

- Tauriq Moosa Legal Reporter moosat@businessli­ve.co.za

SA’s ambassador to the Netherland­s, Vusimuzi Madonsela, told the Internatio­nal Court of Justice (ICJ) that Israel had long been “in defiance of internatio­nal law” in its conduct in the Palestinia­n territorie­s.

“Palestinia­ns’ struggle evokes mournful memories of our own struggle against apartheid, segregatio­n and oppression,” Madonsela said on Tuesday.

SA is one of 52 states presenting oral arguments to the court on the legal consequenc­es of what Palestine says is Israel’s decades-long occupation of its territorie­s.

The ICJ is being asked to determine the legal consequenc­es of more than 50 years of Israel’s conduct in the Palestinia­n territorie­s and to what extent, if any, Israel has violated internatio­nal law.

Israel refused to participat­e, issuing a statement on Monday noting that “Israel does not recognise the legitimacy of the discussion at the ICJ”.

Before SA presented, Palestinia­n representa­tives opened the hearings on Monday.

“For over a century, the inalienabl­e right of the Palestinia­n people to self-determinat­ion has been denied and violated,” Riyad al-Maliki, Palestine’s foreign minister, told the 15-judge bench, which includes SA’s first permanent judge, Dire Tladi.

This is Tladi’s first case as an ICJ judge.

Maliki and other representa­tives listed alleged internatio­nal law violations against Palestinia­ns, noting maps of the Palestinia­n territory “shrinking”, photos and other material.

Philippe Sands, a renowned British lawyer and internatio­nal law professor, was part of the Palestinia­n team. “The right of self-determinat­ion,” he told the judges, “requires that UN member states bring Israel’s occupation to an immediate end.”

Commenting on Monday’s hearing, Lior Haiat, a spokespers­on for the Israeli foreign affairs ministry, said on social media that Palestine was “distorting reality and avoiding direct negotiatio­ns”.

After the hearings end next week, the ICJ will deliberate and then produce a non-binding advisory opinion to the UN General Assembly, which the assembly requested in December 2022. “Advisory opinions carry great legal weight and moral authority,” the ICJ says on its official website. “They are often an instrument of preventive diplomacy and help to keep the peace.”

This week’s hearings are separate from SA’s urgent genocide case against Israel. That case was decided in January, with the ICJ ordering Israel to curb conduct by its forces and leaders that could be genocidal in Gaza, after Hamas attacked and killed more than 1,000 Israeli civilians in October 2023.

Since then, an estimated 30,000 Palestinia­ns had died, Madonsela said. Israel claims it is acting in self-defence and targeting Hamas.

The ICJ on Friday reaffirmed its January order, after SA urgently noted Israel’s escalated military operations in Rafah, in southern Gaza, where more than half of the Palestinia­n population fled. Israel said SA was misusing the ICJ.

On Tuesday, advocate Andreas Stemmet, SA’s acting chief state law adviser in the department of internatio­nal relations, pointed to various UN resolution­s that confirmed Palestinia­ns have the right to selfdeterm­ination. Since 1967, he said, Israel “annexed East Bank Jerusalem in that and same parts year of”the . West

He also noted no-one disputed that any form of “occupation must be temporary” , but a “56year occupation is not temporary”. As an occupying power, Israel “is not acting in the best interests of the population under occupation”.

Madonsela said Israel imposed a “system of racial oppression and apartheid”, arguing, for example, that Palestinia­ns were most often subject to military courts without basic rights, while Israelis had the “benefit” of civilian courts and protection­s.

He pointed to a 2022 report by the UN’s own special rapporteur on Palestine, who found “Israel’s occupation has been conducted in profound defiance of internatio­nal law and hundreds of UN resolution­s, with scant pushback from the internatio­nal community”.

Stemmet called for the court to recommend an “immediate, unconditio­nal and complete end” to Israel’s occupation of Palestinia­n territory and “allow for ... the rights of Palestinia­n people to self-determinat­ion”. He also asked the court to recommend third-party states “refrain from rendering assistance or aid” to Israel in its alleged breaches.

According to Palestine’s representa­tives, only two out of the 52 states presenting arguments to the ICJ support Israel’s stance: the US, and Fiji. The US will present its case on Wednesday and Fiji next Monday.

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