Page:South Africa v. Israel (Order of 26 January 2024).pdf/35

 including Security Council resolution 2334 (2016), the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet road map, and an end to the Israeli occupation that began in 1967, including of East Jerusalem, and reaffirms in this regard its unwavering support, in accordance with international law, for the two-State solution of Israel and Palestine, living side by side in peace and security within recognized borders, based on the pre-1967 borders”. (See General Assembly resolution 77/25 of 6 December 2022; General Assembly resolution 76/10 of 1 December 2021; General Assembly resolution 75/22 of 2 December 2020.)

10. Finally, the Court has itself previously pronounced on the importance of continued negotiations. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court explained:

"“Since 1947, the year when General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a succession of armed conflicts, acts of indiscriminate violence and repressive measures on the former mandated territory. The Court would emphasize that both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life. Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The ‘Roadmap’ approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end. The Court considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, existing side by side with Israel and its other neighbours, with peace and security for all in the region.” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 200-201, para. 162.)"

11. As can be seen from the above history, it is clear that a permanent solution to the Israeli-Palestinian conflict can only result from good faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-State solution. A solution cannot be imposed from outside, much less through judicial settlement. This context must be kept in mind in assessing South Africa’s Application and Request for the indication of provisional measures.

12. On 7 October 2023, thousands of members of the Harakat al-Muqawama al-Islamiya (“Islamic Resistance Movement” or “Hamas”), a Palestinian Sunni Islamic political and military organization governing the Gaza Strip, invaded the territory of the State of Israel under cover of thousands of rockets fired indiscriminately into Israel and committed massacres, mutilations, rapes and abductions of hundreds of Israeli civilians, including men, women and children. (Israel reports that over 1,200 people were murdered that day, more than 5,500 maimed, and over 240 hostages abducted, including infants, entire families, the elderly, the disabled, as well as Holocaust survivors.) According to Israel, most of the hostages remain in captivity or are simply unaccounted for and many have been tortured, sexually abused, starved or killed while in captivity.