Reneva Fourie
The ancestral right to land, which is central to the July 19 International Court of Justice advisory opinion, is an emotive issue. However, the dispossessed are often more willing to seek negotiated solutions to protect lives.
The dominant liberation movement, the ANC, promoted a vision of South Africa belonging to all its inhabitants: indigenous people, colonial settlers and legal immigrants. Therefore, the ANC and its allies fought for a united, non-racial, non-sexist, democratic and prosperous South Africa. After years of resistance, the apartheid regime finally acceded.
In Palestine, the colonial settlers insist on claiming the land as their ancestral right, disregarding the presence and heritage of the indigenous community. Following independence from British rule, the establishment of the State of Israel led to the systematic displacement of Palestinians, the invasion of indigenous communities' homes and land, as well as the construction of new settlements.
Of particular note are the 1948 Nakba and the 1967 Naksa. This situation resembles (yet surpasses in severity) the forced removals under South Africa’s Group Areas Act of 1950 and the former Bantustans. Those Palestinians who remained in their usurped territory experienced segregation, discrimination and harsh repression.
In contrast to the relatively seamless acceptance of a unified South Africa following 1994, the advocated remedy for the Israel-Palestine situation is commonly known as the “two-state solution”. The Palestinian Liberation Organisation (PLO) declared the State of Palestine in November 1988, claiming sovereignty over the internationally recognised Palestinian territories: the West Bank (including East Jerusalem) and Gaza.
It is particularly the West Bank and East Jerusalem that is referred to in the International Court of Justice’s (ICJ) advisory opinion, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem”, issued on July 19.
The advisory opinion responds to the questions posed by the UN General Assembly (UNGA) in December 2022 on the legal implications of Israel's occupation of Palestinian territory and the consequent violation of the rights of the Palestinian people, including the right to self-determination. The outcome is groundbreaking in that it unequivocally establishes the illegality of Israel’s presence in the Occupied Palestinian Territory (OPT) and emphasises the urgent necessity of its withdrawal.
This withdrawal should encompass the cessation of settlement expansion and the relocation of all settlers from the area. It necessitates the provision of reparations for those adversely affected by the forced removals. The report underscores the obligation of all countries and international entities to not recognise Israel’s unlawful presence in the OPT. It calls on the UNGA to take prompt action to end this illegal occupation.
Israel's refusal to acknowledge the advisory opinion, its non-compliance with calls for a ceasefire, its disregard for peace agreements, and its ongoing airstrikes in Gaza not only generate frustration but also cultivate the perception of Israel as considering itself exempt from the law. Regardless, the ICJ’s advisory opinion holds substantial legal and moral influence despite lacking enforceability. We should acknowledge the significance of this outcome.
Its urging for further action by the UNGA is crucial, considering there are still unused punitive measures that can be imposed on Israel. The UNGA has the authority to suspend Israel, similar to the action taken against South Africa in 1974. It can enforce a mandatory arms embargo, as was done against South Africa in 1977.
The advisory opinion is also significant as it highlights Israel's growing global isolation. The ghastly post-October 7 Israeli massacres of people in Gaza and the murder and detention of those in the West Bank have sparked international civic action. Most countries supported the May 10 UN General Assembly vote to recognise Palestine's eligibility for membership.
The number of countries announcing their intention to join South Africa’s case at the ICJ accusing Israel of genocide in the Gaza Strip continues to increase, with Spain joining Belgium and Ireland along with 10 other countries. As of June, 145 of the 193 UN member states now recognise the sovereignty of the State of Palestine, with the number set to rise despite the Israeli Knesset’s July 18 rejection of a Palestinian state.
Although not explicitly stated, the most significant implication of the advisory opinion is the right of the dispossessed to resist. According to international law, the right to resist is closely linked to the right to self-determination. While the premise of resolution 2625 states that states should settle their disputes peacefully, it does not prohibit those seeking self-determination from using military force if no other means are available to achieve their goals.
As the death toll rises, and the world is reminded that the over 39,000 lives lost are not just numbers but deeply loved individuals, there is an urgent need for the ongoing genocide to end. International law is crucial, and action at that level should be intensified. Civic action, such as protest marches, awareness campaigns, and the promotion of the boycott, divestment, and sanctions movement should continue. But more decisive action is needed.
The BRICS+ holds significant authority. Development requires stability, so broadening its scope beyond economics does not undermine its primary objective. The ongoing facilitation of unity talks among the various Palestinian resistance organisations, including Russia’s efforts in February and China’s in April and July, are encouraging. Unity among the Palestinians is vital for focusing purpose and resources.
However, this should be accompanied by the comprehensive isolation of Israel. Some members of BRICS+ have strong ties with Israel, with some even supplying it with arms. If BRICS+ members are serious about advancing development, relations with Israel must be suspended, even if only until a ceasefire is achieved.
In this month of Nelson Mandela’s birthday, we remember the four pillars of struggle that led to our liberation: mass mobilisation, building an underground, armed resistance, and international solidarity. The apartheid government’s international isolation was instrumental in driving it to the negotiating table. Therefore, it can also be effective against Israel.
* Dr Reneva Fourie is a policy analyst specialising in governance, development and security.
** The views expressed in this article are the writer’s and do not necessarily reflect the views of the IOL or Independent Media