THE PROTECTION OF PALESTINIAN HUMAN RIGHTS UNDER INTERNATIONAL LAW: EVALUATING STATE RESPONSIBILITY AND COMPLIANCE.

Introduction

Despite the existence of clear rules under international law, Palestine continues to face allegations of genocide and other extreme atrocities. This article argues that states have an obligation under international law to protect and fulfill human rights. It contends that states have failed to comply with their international obligations to prevent and bring an end to the serious human rights violations in Palestine. The article discusses state responsibility and the role of the UN Charter under international law, before turning to the International Court of Justice’s role in resolving international disputes and, finally, to accountability measures and possible solutions.

International law consists of the legal rules that govern the relationship between states at an international level. The Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, establish the conditions under which state responsibility arises and the legal consequences that follow.¹ Israel has been accused of committing genocide and crimes against humanity in the Palestinian territories, allegations that remain the subject of ongoing litigation before the International Court of Justice. According to Hassan and Tiwari, the conflict between Israel and Palestine reached a peak in May 2021, when Israel launched a military operation called “Guardians of the Wall.”² The authors compare the Palestinian territories to a “post-apocalyptic world” given the scale of destruction they attribute to Israel’s conduct. These events resulted in significant loss of life and the destruction of homes and family structures for Palestinian civilians.

State Responsibility

The obligations of states under international law stem from various treaties, including the United Nations Charter, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Universal Declaration of Human Rights, and the Convention on the Prevention and Punishment of the Crime of Genocide. Article 1 of the Articles on State Responsibility establishes the general principle that every internationally wrongful act of a state entails its international responsibility.³ Article 2 provides that an internationally wrongful act arises when conduct — an act or omission — is attributable to a state and constitutes a breach of an international obligation owed by that state. On this basis, it is argued that Israel’s conduct constitutes an internationally wrongful act, since it is attributable to Israel and amounts to a breach of its international obligations.

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group [or] causing serious bodily or mental harm to members of the group.”⁴ It is alleged that Israel has violated this Convention through the destruction of Palestinian territories, schools, and health facilities, and the killing of large numbers of civilians. The Genocide Convention further establishes that genocide is a punishable crime, raising the question of whether Israel has been held accountable for its conduct. In December 2023, South Africa instituted proceedings against Israel before the International Court of Justice (ICJ), alleging that Israel had committed genocide in violation of the Convention.⁵ South Africa alleged that Israel’s military operations in Gaza violated the Genocide Convention by committing, and failing to prevent, genocide against Palestinians. The ICJ subsequently issued a series of provisional measures orders directing Israel to take steps to prevent acts of genocide and to prevent and punish incitement to commit genocide. It can be argued that these orders have not been fully effective, given reports of continued Israeli military operations in Gaza following their issuance — raising broader questions about the practical enforceability of ICJ provisional measures. It is worth noting that provisional measures are interim orders issued pending a final judgment: they reflect the Court’s assessment that the rights asserted are plausible and warrant interim protection, not a finding on the merits that genocide has in fact been committed. A final determination remains pending.

Even though South Africa has arguably fulfilled part of its obligations under the United Nations Charter by instituting these proceedings,⁶ some academics argue that South Africa and other states have not gone far enough in fulfilling their broader obligations. Maistry and Le Grange argue that South African universities have remained largely silent on the escalating crisis in Palestine, particularly regarding the destruction of educational institutions.⁷ The authors contend that South Africa’s pro-Palestinian government stance has not been matched by an equivalent response from its higher education institutions, and rely on United Nations Security Council Resolution 2601, which affirms the need to protect education during armed conflict. The South African Educational Research Association’s Curriculum Studies Special Interest Group held a seminar titled “Critical Perspectives on the Palestine-Israel Crisis.” The authors note that this initiative originated within the structures of the University of KwaZulu-Natal, and argue that pro-Israel lobby groups had previously influenced the university to decline hosting such a debate — leading to the seminar instead being held under the auspices of the research association. They further contend that university administrators have, in some instances, deferred to pressure from Israeli and Western state interests to protect Western research funding. The authors conclude by calling for greater advocacy to embed social justice activism within the school curriculum.

South Africa’s continued trade relations with Israel raise further questions, despite its having brought genocide allegations against Israel before the ICJ. Rapanyane examines the inconsistencies in South Africa’s foreign policy toward Israel.⁸ The author argues that the African National Congress (ANC) “enjoys economic engagement with… internationally condemned apartheid Israel,” and questions the clarity of President Cyril Ramaphosa’s economic and political engagement with Israel, writing that “the ANC-led government still lacks a clear foreign policy stance when it comes to the denunciation of Israel’s apartheid activities in Palestine.” On this view, South Africa’s position is difficult to reconcile: it presents itself as a champion of the Palestinian cause while continuing to support Israel’s economy through trade — a gap, it is argued, in South Africa’s fulfillment of its own international obligations.

The Role of the United Nations

The United Nations is an international organization comprising member states from across the world. Article 1 of the UN Charter sets out the purposes of the organization, including maintaining international peace and security and developing friendly relations among nations based on the principle of equal rights and self-determination of peoples.⁹ Hassan and Tiwari note, however, that there has been a marked increase in the number of armed conflicts since the UN’s founding,¹⁰ and question what continues to hinder the organization’s ability to secure lasting peace and security.

Article 2(4) of the UN Charter requires all member states to refrain from the threat or use of force against the territorial integrity or political independence of any state.¹¹ An exception is found in Article 51, which permits a state to use force in self-defence against an armed attack — raising the question of whether Israel’s military operations against Palestine can properly be characterized as self-defence. In the Corfu Channel case, the ICJ considered the lawfulness of a state’s use of force and held that conduct purportedly justified as self-defence or self-help may nonetheless be unlawful where it is inconsistent with the purposes and principles of the UN Charter.¹² Applying this reasoning, it is argued that Israel’s conduct in Gaza cannot be justified as self-defence, notwithstanding Israel’s own characterization of its operations.

The Caroline affair of 1837 — a diplomatic dispute between the United States and Britain, resolved through correspondence between U.S. Secretary of State Daniel Webster and British envoy Lord Ashburton — is widely credited with establishing the customary international law standard for anticipatory self-defence.¹³ Under what has become known as the “Caroline test,” a state may use anticipatory self-defence only where the necessity for action is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Applying this standard, it is argued that Israel’s conduct does not meet the threshold required to justify anticipatory self-defence, since there was no imminent threat of the kind the Caroline test requires.

Article 33 of the UN Charter further provides that parties to a dispute likely to endanger international peace and security must first seek a solution through negotiation, enquiry, mediation, conciliation, arbitration, or judicial settlement. This obligation exists alongside, and reinforces, the prohibition on the threat or use of force. It is argued that any dispute between Israel and other states ought to be resolved through these peaceful means, and that Israel’s resort to force instead constitutes a breach of this obligation.

The International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, as provided in Article 92 of the UN Charter.¹⁴ The ICJ decides contentious legal disputes between states and issues advisory opinions on questions of international law referred to it by authorized UN organs and agencies.¹⁵ In contentious proceedings, and where circumstances require, the Court may also indicate provisional measures — interim orders intended to preserve the parties’ respective rights pending a final decision.

Advisory opinions are non-binding responses to legal questions referred to the Court by UN bodies. Contentious cases, by contrast, involve disputes between states over questions of law or fact. An example is Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (Nicaragua v. Germany), in which Nicaragua alleged that Germany, through military and financial support to Israel, was complicit in breaching obligations under the Genocide Convention.¹⁶ On 30 April 2024, however, the ICJ declined, by a vote of fifteen to one, to indicate provisional measures against Germany, finding that the circumstances did not require it to exercise that power; the case remains pending on the merits. This outcome illustrates the uneven results that have followed from the broader wave of Genocide Convention litigation connected to the Gaza conflict.

Article 59 of the ICJ Statute provides that the Court’s decisions are binding on the parties to a case.¹⁷ In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the ICJ held that a state must act to prevent genocide as soon as it learns, or should normally have learned, of a serious risk that genocide will be committed.¹⁸ Bosnia and Serbia were accordingly bound by the Court’s judgment. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the ICJ likewise issued provisional measures binding on Israel, requiring it to take measures within its power to prevent acts of genocide. Orders of this kind serve as one mechanism, among others, for pursuing accountability and protecting at-risk populations — even though, as discussed above, real questions remain about their practical enforcement.

Accountability Measures

The Genocide Convention establishes that genocide is a punishable crime; it constitutes not only a breach of international law but also a grave violation of human rights. Accountability measures are the mechanisms through which states may be held responsible for such violations. Hassan and Tiwari discuss the role ICJ provisional measures can play in protecting human rights and holding states accountable for violent conduct, while also noting the limits of that role. The UN Human Rights Council has resolved to investigate allegations of crimes committed in Gaza, though ensuring effective accountability remains a significant challenge in international law. Human rights organizations, including Amnesty International, have called for Israeli authorities to be held accountable for alleged crimes against humanity, and have proposed economic sanctions as one possible accountability measure. The United Nations, established in part to prevent conflict and promote international peace and security, has the institutional authority to impose sanctions, subject to Security Council action.

Hassan and Tiwari, discussing Israel’s trade relationships with the United States, Canada, and the European Union, report that the United States has provided Israel with substantial bilateral assistance and missile-defence funding over recent decades.² This support, it is argued, has enabled Israel’s conduct and raises questions about whether the United States, too, should be held accountable for facilitating it. On this view, states should exert economic pressure on Israel to secure humanitarian access and ease restrictions on aid, and South Africa, in particular, should consider measures such as reducing trade and other forms of economic support for the Israeli economy. Coordinated state action along these lines, it is argued, offers the most realistic prospect of holding Israel accountable and deterring further violations — and of states finally meeting the international obligations this article has argued they have so far failed to fulfill.

Endnote(S):

1. The Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001.
2. Md Tasnimul Hassan & Deeksha Tiwari, Tenuous Accountability: Armed Groups, International Law and the Israel-Palestine Conflict, 33, 54 (2022).
3. The Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, art. 1.
4. Convention on the Prevention and Punishment of the Crime of Genocide, art. II, Dec. 9, 1948, 78 U.N.T.S. 277.
5. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of Jan. 26, 2024, I.C.J. Reports 2024.
6. Charter of the United Nations, June 26, 1945, 1 U.N.T.S. XVI.
7. S. M. Maistry & L. Le Grange, South African State-Led Pro-Palestinian Activism and the Reluctance of the Academe to Show Solidarity, 39, 1–12 (2025).
8. Makhura B. Rapanyane, Consistency and Inconsistency in the Foreign Policy of the Republic of South Africa Towards Israel, 9 (2021).
9. Charter of the United Nations, art. 1.
10. Hassan & Tiwari, supra note 2.
11. Charter of the United Nations, art. 2(4).
12. Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, 1949 I.C.J. 4 (Apr. 9).
13. See generally R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int’l L. 82 (1938).
14. Charter of the United Nations, art. 92.
15. Hennie Strydom, International Law 182 (6th ed., Oxford 2016).
16. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (Nicaragua v. Germany), Provisional Measures, Order of Apr. 30, 2024, I.C.J. Reports 2024.
17. Statute of the International Court of Justice, art. 59, June 26, 1945, T.S. 993.
18. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. Reports 43 (Feb. 26).

Bibliography

Cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. Reports 43 (Feb. 26).

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (Nicaragua v. Germany), Provisional Measures, Order of Apr. 30, 2024, I.C.J. Reports 2024.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of Jan. 26, 2024, I.C.J. Reports 2024.

Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, 1949 I.C.J. 4 (Apr. 9).

Books

Hennie Strydom, International Law 182 (6th ed., Oxford 2016).

Articles

Md Tasnimul Hassan & Deeksha Tiwari, Tenuous Accountability: Armed Groups, International Law and the Israel-Palestine Conflict, 33, 54 (2022).

S. M. Maistry & L. Le Grange, South African State-Led Pro-Palestinian Activism and the Reluctance of the Academe to Show Solidarity, 39, 1–12 (2025).

Makhura B. Rapanyane, Consistency and Inconsistency in the Foreign Policy of the Republic of South Africa Towards Israel, 9 (2021).

Treaties and Conventions

The Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001.

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.

Charter of the United Nations, June 26, 1945, 1 U.N.T.S. XVI.

Statute of the International Court of Justice, June 26, 1945, T.S. 993.