Bijlage 1.ICC Dissenting Opinion Judge Péter Kovács.jurisdictie Palestina.CR2021 01167.PDF

Majority Decision, paras 95-99. Majority Decision, para. 96. 243 See Office of the Prosecutor, Situation of Palestine, Statement, 3 April 2012, paras 5-6 (‘The issue that arises, therefore, is who defines what is a “State” for the purpose of article 12 of the Statute? In accordance with article 125, the Rome Statute is open to accession by “all States”, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “State”. Thus, competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary-General who, in case of doubt, will defer to the guidance of General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.

In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a 242

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criticized by legal academics, questioning why the Prosecutor considered himself dependent on the stocktaking of an institution external to the Rome Statute.244 194. If this position or policy was allegedly erroneous years ago, could it be correct today? The only difference is that due to changes in the UN’s position, the result is different today. Is this enough when assessing the Prosecutor’s new position? Or if this is not a form of outsourcing, is it a ‘fait accompli’ automatically binding the Court? 195. The Majority Decision highlights that: On 21 December 2012, by way of interoffice memorandum, the United Nations Office of Legal Affairs indicated that, the General Assembly having accepted Palestine as a non-Member observer State in the United Nations, this determinination will guide the Secretary-General in discharging his functions as depositary of treaties containing an ‘all States’ clause and that, as a result, Palestine would be able to become party to any treaties that are open to ‘any State’ or ‘all States’ deposited with the Secretary-General’.245 196.

It is worth pointing out, however, that at the top of the previously cited document of the United Nations Office of Legal Affairs, one can read the statement: ‘Please be advised that the memorandum is for internal use and it is not for distribution to Member States or the media.’ It is not clear when this document became publicly accessible. However, it was seemingly originally prepared for approximately 20 high officials, such as under-secretary-generals, top method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1).’) See also Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda: ‘The Public Deserves to know the Truth about the ICC’s Jurisdiction over Palestine’, 2 September 2014. 244 See e.g. G. Bitti, ‘Droit international – Cour pénale internationale’ in 3 Revue de Science Criminelle et de Droit Pénal Comparé 609 (2016), p. 610 (‘Une résolution de l’Assemblée générale des Nations unies n’est en aucune façon déterminante ou contraignante pour la CPI, dont le droit applicable est régi par l’article 21 de son Statut. […] Il revient donc au Procureur de vérifier si ce critère de compétence, en l’espèce la “qualité” d’État, est rempli ou pas. Rien dans le Statut ne permet au Procureur de déléguer une telle tâche à une autre entité.’); M.

El Zeidy, ‘Ad Hoc Declarations of Acceptance of Jurisdiction: The Palestinian Situation Under Scrutiny’ in C. Stahn (ed.) The Law and Practice of the International Criminal Court (2015), pp. 189-190; H. Lee, ‘Defining “State” for the Purpose of the International Criminal Court: The Problem ahead after the Palestine Decision’ in 77 University of Pittsburg Law Review 345 (2016), pp. 362-366; S. H. Adem, Palestine and the International Criminal Court (2019), pp. 54-56, 60; Valentina Azarov and Chantal Meloni, ‘Disentangling the Knots: A Comment on Ambos’ “Palestine, ‘Non-Member Observer’ Status and ICC Jurisdiction”’ on EJIL:Talk! (27 May 2014), https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observerstatus-and-icc-jurisdiction; Dapo Akande, ‘ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?’ on EJIL:Talk! (5 April 2012), https://www.ejiltalk.org/icc-prosecutor-decides-that-hecant-decide-on-the-statehood-of-palestine-is-he-right; L. Yan, ‘Non-States Parties and the Preliminary Examination of Article 12(3) Declarations’ in M. Bergsmo and C. Stahn (eds) Quality Control in Preliminary Examination: Volume 2 (2018), pp. 459-460. 245 Majority Decision, para. 98.

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leaders of specialized agencies and other UN institutions. While some academic papers published in 2014 may have summarized or cited to its content, it is not so evident that this document can be cited as evidence of a commonly held view by the UN and its members. 197. I believe, therefore, that the factual and legal situation before us is far more complicated and that it cannot be properly understood without reading the whole text of Resolution 67/19 and the States’ oral statements, as preserved in the written minutes of the session of the General Assembly. 198. In order to better understand the legal debate surrounding the attribution of ‘non-member observer State’ status to Palestine based on Resolution 67/19, it is important to have an overview of the UN practice in similar matters.

199. It bears repeating that the institution of ‘non-member observer State’ status is not foreseen by the UN Charter, but has been created through practice. It is true that creation through practice is not unique in the life of the United Nations. The ‘abstention’ during voting in the Security Council, the peacekeeping operations or the determination of the different regions to ensure equitable geographical representation, are, among others, well known examples of such a practice. 200. Is the meaning of the three components of the ‘non-member observer State’ formula (i. non-member ii. observer iii. State) absolutely clear in this context and can these components be interpreted independently or must they only be interpreted together, meaning ‘non-member observer State’ as a sui generis entity? 201. Even the practice of the United Nations’ protocol service may be cited in support of affirming the inseparability of the constituting elements. In the Blue Book, 246 there are currently two entities under the title of ‘Non-member States having received a standing invitation to participate as observers in the sessions and the work of the General Assembly and maintaining permanent offices at Headquarters.’ These are Palestine and the Holy See.247 246

Permanent Missions to the United Nations, Protocol and Liaison Service, Nº 308 Rev. 2 (August 2019), ST/PLS/SER.A/308/Rev.2 (the ‘Blue Book’). 247 Blue Book, pp. 8, 342.

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202. It is well-known that the international legal personality of the Holy See is completely different from that of the State of Vatican City. Nevertheless, it is the Holy See that has enjoyed ‘Permanent Observer State’ status since 1964.248 203. The Holy See may accede to treaties according to the ‘all States’ formula.249 This leads to the following question: if, i. the Holy See decided to accede to the Rome Statute through the ‘all States’ formula contained in article 125(3) of the Statute, ii. States Parties adopted a similar attitude in this respect, as the one they had vis-à-vis Palestine’s accession (with no or only a few explicit denials), and iii. according to the Prosecutor and the Majority Decision, no accession may subsequently be examined if conducted according to the correct procedure, then, what would be the geographical scope of the ‘territory’ in this case? Would it be the 44 hectares of Vatican City, or to the contrary, can the word ‘territory’ not be used as a legal notion as far as the Holy See is concerned? With the exception of a special interpretation given by the Holy See itself, the question is not easy to answer. 204. It would be easy to reply that the Holy See cannot join because it is not a State but merely a special sui generis subject of international law.

However, this would lead us back to one of the basic questions in the issue sub judice: what should be the determining factor? The acquired statehood or the automatism of the ‘all States’ formula, as also enshrined in the Rome Statute? 205. Moreover, it is well known that the Holy See has acceded to a number of important multilateral conventions (for example, in the field of humanitarian law or concerning the prohibition of different types of weapons, human rights violations, refugee law, education, environmental protection, intellectual property, fight against drugs, etc.), some of them interfering with rules of the Rome Statute. These accessions were allegedly not due to an actual 248

See also General Assembly, Resolution 58/314 (Participation of the Holy See in the work of the United Nations), 16 July 2014, A/RES/58/314. 249 United Nations Juridical Yearbook (2012), pp. 468-469 (‘As the General Assembly has never treated Palestine as a State but as a sui generis entity, Palestine cannot fall under the “all States” formula and should continue to participate as an observer entity in such Conferences. The Holy See on the other hand has always been treated by the Assembly as an Observer State and thus falls under the “all States” formula. […] Palestine became a member State of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on 23 November 2011. The specialized agencies of which the Holy See is a member include the World Intellectual Property Organization (WIPO), the Universal Postal Union (UPU) and the International Telecommunication Union (ITU). As the Geographical Names Conference has previously been convened under the “Vienna” formula, we would recommend that Palestine and the Holy See as States members of specialized agencies both participate as full members. As the Small Arms Conference is to be convened under the “all States” formula, we would recommend that the Holy See participate as a full member and Palestine as an observer entity.’).

As to Palestine, please note that this document was prepared before the adoption of Resolution 67/19.

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need of the sovereign Vatican City but to the Holy See’s desire to contribute to a better world by sharing its religious and moral authority on a global level. 250 As to its participation in international organizations and bodies, it has been mostly granted in the name of the Holy See,251 either in full member capacity or as an observer, while only few organizations have restricted membership to the entity of ‘the Vatican City’.252 250

See e.g. The Holy See, Comments of the Holy See on the Concluding Observations of the Committee on the Rights of the Child (‘The Holy See, in affirming its proper nature as a subject of international law, reiterates that the international obligations contracted upon adherence to the CRC, with reservations and interpretative declaration, and its Optional Protocols are fulfilled first and foremost through the implementation of the aforementioned duties within the territory of the Vatican City State (VCS), over which the Holy See exercises full territorial sovereignty. Beyond this geographic territory, which it administers, the Holy See disseminates principles recognized in the CRC to all people of goodwill and to various local Catholic churches and institutions, which operate in different States in compliance with national laws. Therefore, the obligations of the Convention and its Optional Protocols refer to Vatican citizens, as well as, where appropriate, the diplomatic personnel of the Holy See or its Officials residing outside the territory of Vatican City State. The Holy See does not have the capacity or legal obligation to impose the abovementioned principles upon the local Catholic churches and institutions present on the territory of other States and whose activities abide with national laws.

The Holy See, in accordance with the rules of international law, is aware that attempting to implement the CRC in the territory of other States could constitute a violation of the principle of non-interference in the internal affairs of States.’) 251 See on the Vatican’s official website: ‘The Holy See participates in various Intergovernmental Organizations and Bodies and International Programmes, including: UN United Nations Organization, New York, Observer; UNOG United Nations Office in Geneva, Geneva, Observer; UNOV United Nations Office in Vienna, Vienna, Observer; UNHCR United Nations High Commissioner for Refugees, Geneva, Member of the Executive Committee; UNCTAD United Nations Conference on Trade and Development, Geneva, Member ; WIPO World Intellectual Property Organization, Geneva, Member; IAEA International Atomic Energy Agency, Vienna, Member; OPCW Organization for the Prohibition of Chemical Weapons, The Hague, Member; CTBTO Preparatory Commission for the Comprehensive Nuclear-Test Ban Treaty Organization, Vienna, Member; ICMM International Committee of Military Medicine, Brussels, Member; FAO United Nations Food and Agriculture Organization, Rome, Observer; ILO International Labour Organization, Geneva, Observer; WHO World Health Organization, Geneva, Observer; UNESCO United Nations Educational, Scientific and Cultural Organization, Paris, Observer; UNIDO United

Nations Industrial Development Organization, Vienna, Observer; IFAD International Fund for Agricultural Development, Rome, Observer; UNWTO World Tourist Organization, Madrid, Observer; WMO World Meteorological Organization, Geneva, Observer; WTO World Trade Organization, Geneva, Observer; UNDP United Nations Development Program, New York, Observer; UN-HABITAT United Nations Centre for Human Settlements, Nairobi, Observer; UNEP United Nations Environment Programme, Nairobi, Observer; WFP World Food Programme, Rome, Observer; INTOSAI International Organization of Supreme Audit Institutions, Vienna, Member; CIEC International Commission on Civil Status, Strasbourg, Observer; UL Latin Union, Paris, Permanent Guest; OSCE Organization for Security and Co-operation in Europe, Vienna, Member; CE Council of Europe, Strasbourg, Observer; AU African Union, Addis Abeba, Non-Member Accredited State; OAS Organization of American States, Washington, Observer; LAS League of Arab States, Cairo, Non-Member Accredited State; AALCO Asian-African Legal Consultative Organization, New Delhi, Guest; UNIDROIT International Institute for the Unification of Private Law, Rome, Member; IOM/OIM International Organization for Migration, Member.’, http://www.vatican.va/roman_curia/secretariat_state/documents/rc_seg-st_20010123_holy-see-relations_en.html.

252 See on the Vatican’s official website: ‘The Vatican City State participates in various International and Intergovernmental Organizations, including: UPU Universal Postal Union, Bern, Member; ITU International Telecommunication Union, Geneva, Member IGC International Grains Council, London, Member; ITSO International Telecommunications Satellite Organization, Washington D.C., Member; EUTELSAT IGO European Telecommunication Satellite Organization, Paris, Member; CEPT European Conference of Postal and Telecommunications, Copenhagen, Member; IISA International Institute of Administrative Sciences, Brussels,

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206. The history of the United Nations provides even more interesting lessons. As Jure Vidmar253 puts it, the first of the few ‘precedents’ in the UN’s practice is probably that of Austria. Its ‘Non-Member State’ status was attributed in 1953 and was in effect until 1955 when it was admitted as a full Member State together with several former Axis-Member States (Bulgaria, Finland, Hungary and Romania). As it is well-known, Austria’s sovereignty and statehood was re-established only by the four power agreement of 1955 (called also Four Party Treaty and Staatsvertrag) putting an end to the occupation by the United States, the United Kingdom, France and the Soviet Union. This is to say that Austria’s ‘Non-Member State’ status in the UN coincided with a time period (1953 to 1955) when Austria’s independence and sovereignty had not yet been achieved. 207. Austria had succeeded in gaining admission into the International Civil Aviation Organization 254 (the ‘ICAO’) in 1948 and its membership in this UN specialized agency opened the way for Austria’s special status in the UN. Of note, the ICAO admission occurred seven years before Austria was granted its sovereignty and independence. Can the 1948 ICAO membership then be considered proof of Austria’s statehood before 1955? And what about its 1953 to 1955 status before Staatsvertrag and its admission to the UN? 208.

Austria’s membership in the United Nations Educational, Scientific and Cultural Organization (the ‘UNESCO’) also dates back to 1948, seven years before Staatsvertrag. Nevertheless, the Four Party Treaty is considered the founding international legal instrument of the reborn, sovereign Austria. 209. It must be noted that Austria was admitted into the International Labour Organization (the ‘ILO’) earlier, in 1947 (eight years prior to the 1955 Four Party Treaty granting back sovereignty to Austria). It is true that even if the ILO is an intergovernmental organization,255 its composition is not reduced only to governmental representation, but employers and employees are also represented in the four member national delegations. Austria’s admission Member.’, http://www.vatican.va/roman_curia/secretariat_state/documents/rc_seg-st_20010123_holy-seerelations_en.html. 253 J. Vidmar, ‘Palestine and the Conceptual Problem of Implicit Statehood’ in 12 Chinese Journal of International Law 19 (2013), pp. 24-26. 254 R. E. Clute, The International Legal Status of Austria 1938-1955 (1962), pp. 128-129; D. Mackenzie, ICAO: A History of the International Civil Aviation Organization (2010), p. 221. 255 See ILO Constitution, article 2 (‘The Members of the International Labour Organization shall be the States’).

See also article 3 (‘Any original member of the United Nations and any State admitted to membership of the United Nations’), article 6 (‘In the event of any State having ceased to be a Member’).

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was, inter alia, facilitated by the fact that the disposition on admissions refers to ‘Member’ and not to ‘State’.256 210. As an ILO-member, Austria ratified several ILO conventions257 while still holding this peculiar pre-sovereign status. While these are intergovernmental, multilateral conventions, they generally refer not to ‘States’ but to ‘Members’, and generally use the ‘Each Member’ / ‘Any Member’ formula. 211. To sum up, Austria’s pre-sovereign status did not prevent either its admission into the UNESCO, the International Civil Aviation Organization (the ‘ICAO’), the ILO or its accession to the ILO Conventions. However, these admissions and these accessions did not elevate its legal status to the level of a de jure sovereign state. This status was only achieved in 1955. 212. Additionally, before the signature and entry into force of their peace treaties, in their ‘presovereign’ status imposed by the armistice agreements, several former Axis-member States could rejoin the ILO (as Italy did), or revitalize their ‘frozen’ participation (as Bulgaria, Finland and Hungary did).

They then became new contracting parties to several ILO Conventions.258 As Stuart Hull MacIntyre puts it: [M]ore significance may be attached to the decision of the 1948 International Labor Conference that Bulgaria and Hungary were liable, after a reduction of 80% for the contributions they failed to make during the war. Thus recognition was given to the continuous ILO Constitution, article 4 (‘The General Conference of the International Labour Organization may also admit Members to the Organization by a vote concurred in by two-thirds of the delegates attending the session, including two-thirds of the Government delegates present and voting. Such admission shall take effect on the communication to the Director General of the International Labour Office by the government of the member of its formal acceptance of the obligations of the Constitution of the Organization.’). 257 ILO, Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (acceded on 18 October 1950); Right to Organise and Collective Bargaining Convention, 1949 (No. 98) (acceded on 10 November 1951); Equal Remuneration Convention, 1951 (No. 100) (acceded on 29 October 1953); Labour Inspection Convention, 1947 (No. 81) (acceded on 30 April 1949); Workmen’s Compensation (Agriculture) Convention, 1921 (No. 12) (acceded on 14 June 1954); Final Articles Revision Convention, 1946 (No.

80) (acceded on 14 June 1949); Labour Clauses (Public Contracts) Convention, 1949 (No. 94) (acceded on 10 November 1951); CO95: Protection of Wages Convention, 1949 (No. 95) (acceded on 10 November 1951); Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99) (acceded on 29 October 1953); Holidays with Pay (Agriculture) Convention, 1952 (No. 101) (acceded on 14 June 1954). See https://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102549. 258 The Paris Peace Treaties were all signed on the same date (10 February 1947) and entered into force a couple of weeks/months later in accordance with the parliamentary ratification requirements. However, according to the ILO public documentation, Bulgaria’s membership seems to have been continuous since 16 December 1920, Finland’s since 16 December 1920 and Hungary’s since 18 September 1920. Italy left the ILO and the League of Nations at the same time but returned on 19 October 1945, i.e. well before its peace treaty and the reacquisition of its full sovereignty. Romania returned to the ILO only after its admission to the United Nations. See https://www.ilo.org/dyn/normlex/en/f?p=1000:11001:::NO. 256

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membership of these two countries throughout the war. […] Bulgaria and Hungary had been actively participating in the International Labor Conferences from October 1945 and had done so without a special invitation.259 213. MacIntyre also rightly remarks that: ‘[a]mong the 76 countries sending delegates to the Atlantic City conferences [of the ILO, organized in autumn 1947] were Bulgaria, Hungary, Italy and Romania, at a time when their peace treaties had been signed but were not yet in force’.260 214. Something similar happened related to the birth of the World Health Organization (the ‘WHO’), created by the members of the United Nations at a conference held from 19 June to 22 July 1946, during which the former Axis-member countries were also invited as observers. Due to the wording of article 5,261 Hungary signed the WHO Constitution on 19 February 1947 (after the signature of the peace treaty, but before its entry into force, which occurred only on 15 September 1947, following the deposition of all the required instruments of ratification). It then promulgated 262 it in 1948, in conjunction with the entry into force of the WHO Constitution which took place in 1948,263 long after the entry into force of the peace treaty, which granted back full sovereignty to Hungary. 215.

This example illustrates that, due to general interests (for example, prevention of epidemics and other diseases), their knowledge of the results of negotiations of peace treaties and the readiness of the former Axis members to fully accept them, United Nations Member States, when inviting the defeated States as observers, were ready to establish conditions to facilitate their full participation at the earliest time, even though those States did not enjoy full sovereignty. S. H. MacIntyre, Legal Effect of World War II on Treaties of the United States (1958) (‘MacIntyre’), pp. 128129. 260 MacIntyre, p. 271. 261 WHO, Constitution of the World Health Organization, article 5 (‘The States whose Governments have been invited to send observers to the International Health Conference held in New York, 1946, may become Members by signing or otherwise accepting this Constitution in accordance with the provisions of Chapter XIX and in accordance with their constitutional processes provided that such signature or acceptance shall be completed before the first session of the Health Assembly.’). 262 ‘1948. évi XII. törvénycikk az Egészségügyi Világszervezet Alkotmányának becikkelyezésérőli’ [Act XII/1948 on the promulgation of the Constitution of the World Health Organization]. 263 WHO, Constitution of the World Health Organization, n.

1 (‘The Constitution was adopted the International Health Conference held in New York from 19 June to 22 July 1946, signed on 22 July 1946 by the representatives of 61 States (Off. Rec. Wld Hlth Org., 2,100), and entered into force on 7 April 1948.’). 259

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216. Turning back to the UNO’s history, let us remember that in the late 1940’s, some admissions were criticized by States and scholars as being too generous vis-à-vis entities whose full-fledged sovereignty did not seem to be evident.264 217. For the other States whose admission could not be immediately granted, a special status was sometimes granted similar to that enjoyed by Austria between 1953 to 1955 in the United Nations (called ‘observers’ or ‘observer States’), but the picture is shadowed.265 It is common, however, that after a shorter or longer stay, generally due to geopolitical considerations, they were admitted into the United Nations as full members. 218. All this means that one cannot say that it would be a complete absurdity (without any ‘precedent’) to admit a pre-sovereign entity into an interstate organization. On the other hand, participation in an interstate (and even quasi universal) international organization is not in itself irrefutable proof of statehood or of an alleged perception of full-fledged statehood by the Member States having voted in favour of the admission. 219. To sum up, no conclusion can be drawn that the ‘Non-Member Observer State’ status in the United Nations should be construed in abstracto to mean that its holder is a sovereign State.

This becomes even more obvious when one examines Resolution 67/19 in concreto, its adoption, language and interpretation in successive resolutions adopted by the General Assembly.

220. The procedural correctness of the adoption of Resolution 67/19 cannot be contested. However, a first glance at the voting results and the States’ positions before and after the explanation of votes shows a very contrasted picture. 221. Resolution 67/19 states that ‘to date, 132 States Members of the United Nations have accorded recognition to the State of Palestine’.266 I do not contest the accuracy of this number, 264

See Cohen; Tse-shyang Chen. South Vietnam having possessed UN observer status since 1952, collapsed after the retreat of the United States troops in 1975. Thereafter, Vietnam became united. The so-called German Democratic Republic, having enjoyed observer status between 1972 and 1973, was granted full member status in 1973, which it enjoyed until the moment when, following the collapse of the Berlin Wall (1989) and of the communist regime, its territory was returned to the Federal Republic of Germany under the unification treaty called ‘Two Plus Four Treaty’ (Treaty on the Final Settlement with Respect to Germany). 266 Resolution 67/19, p. 3. 265

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the source of which is not revealed in the resolution, which was adopted by 138 votes in favour,267 9 against,268 with 41 abstentions269 and 5 States270 not participating in the voting. 222. However, of the 138 votes in favour, nearly half of them (55) are not from States Parties271 to the Rome Statute, even to this day. It is worth noting the special status of three States who were either States Parties in 2012272 or currently are not States Parties.273 223. Mathematically, 138 votes were more than enough for the adoption of Resolution 67/19, and even without the 56 non-ICC States Parties votes, the simple majority would have still been achieved. It is worth noting that, of the 41 abstaining countries, 31 were/are States Parties274 while, of the 9 countries voting against, 5 were/are States Parties.275 This means that the States Parties were very divided during the vote on Resolution 67/19: 88 were in favour, 5 against and 31 abstained. While still a majority, the ratio of abstention is alarming. Due to the 267

These States were: Afghanistan, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, Burkina Faso, Burundi, Cambodia, Cape Verde, Central African Republic, Chad, Chile, China, Comoros, Republic of the Congo, Costa Rica, Côte d’Ivoire, Cuba, Cyprus, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Eritrea, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Ghana, Greece, Grenada, Guinea, Guinea-Bissau, Guyana, Honduras, Iceland, India, Indonesia, Iran, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, North Korea, Kuwait, Kyrgyzstan, Laos, Lebanon, Lesotho, Libya, Liechtenstein, Luxembourg, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar, Namibia, Nepal, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Peru, Philippines, Portugal, Qatar, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, São Tomé and Príncipe, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Solomon Islands, Somalia, South Africa, South Sudan, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syria, Tajikistan, Tanzania, Thailand, Timor-Leste, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, United Arab Emirates,

Uruguay, Uzbekistan, Venezuela, Vietnam, Yemen, Zambia and Zimbabwe. 268 These States were: Canada, Czech Republic, Micronesia, Israel, Marshall Islands, Nauru, Palau, Panama and United States of America. 269 These States were: Albania, Andorra, Australia, Bahamas, Barbados, Bosnia and Herzegovina, Bulgaria, Cameroon, Colombia, Croatia, Democratic Republic of the Congo, Estonia, Fiji, Germany, Guatemala, Haiti, Hungary, Latvia, Lithuania, North Macedonia, Malawi, Moldova, Monaco, Mongolia, Montenegro, Netherlands, Papua New Guinea, Paraguay, Poland, Romania, Rwanda, Samoa, San Marino, Singapore, Slovakia, Slovenia, South Korea, Togo, Tonga, United Kingdom and Vanuatu. 270 These States were: Equatorial Guinea, Kiribati, Liberia, Madagascar and Ukraine. 271 These States were: Algeria, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Bhutan, Brunei, China, Cuba, Egypt, Eritrea, Ethiopia, Guinea-Bissau, India, Indonesia, Iran, Iraq, Jamaica, Kazakhstan, North Korea, Kuwait, Kyrgyzstan, Laos, Lebanon, Libya, Malaysia, Mauritania, Mauritius, Morocco, Mozambique, Myanmar, Nepal, Nicaragua, Oman, Pakistan, Qatar, Russia, São Tomé and Príncipe, Saudi Arabia, Solomon Islands, Somalia, South Sudan, Sri Lanka, Sudan, Swaziland, Syria, Thailand, Turkey, Turkmenistan, Tuvalu, United Arab Emirates, Uzbekistan, Vietnam, Yemen, and Zimbabwe. 272 This State was Côte d’Ivoire.

273 These States were Burundi and the Philippines. 274 These States were: Albania, Andorra, Australia, Barbados, Bosnia and Herzegovina, Bulgaria, Cameroon, Colombia, Croatia, Democratic Republic of the Congo, Estonia, Germany, Guatemala, Hungary, Latvia, Lithuania, North Macedonia, Malawi, Moldova, Mongolia, Montenegro, Netherlands, Paraguay, Poland, Romania, Samoa, San Marino, Slovakia, Slovenia, South Korea, United Kingdom and Vanuatu. 275 These States were: Canada, Czech Republic, Marshall Islands, Nauru and Panama.

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special nature of abstention, I cannot say that votes by non-States Parties were determinative concerning the ICC. However, the division of the States Parties is worth noting. 224. Resolution 67/19 was adopted in a procedurally correct manner and the General Assembly as an institution is not required to address the eventual impact of its resolution upon another international institution. Of course, Resolution 67/19 did not and does not directly concern the ICC. However, the Request (in its primary position) relies on this resolution as its ‘atout’ card. 225. Moreover, it should be emphasised that during the explanation of votes, 276 several countries voting ‘in favour’ felt it necessary to state that their positive vote did not have any effect on actual recognition either erga omnes, or even between them and Palestine. These countries include France, 277 Switzerland, 278 Belgium, 279 Denmark, 280 Finland, 281 New Zealand282 and Norway.283 Other countries voting ‘in favour’ emphasised that their vote should not be understood as a decision on borders and territory (Honduras)284 and that they considered 276

General Assembly, 44th Plenary Meeting, Agenda Item 37: Question of Palestine, 29 November 2012, A/67/PV.44 (the ‘UN, Question of Palestine’). 277 UN, Question of Palestine, p. 14 (‘The international recognition that the Assembly has today given the proposed Palestinian State can become fact only through an agreement based on negotiations between the two parties on all final status issues, within the framework of a fair and comprehensive peace settlement that responds to Israel and Palestine’s legitimate aspirations.’). 278 UN, Question of Palestine, pp. 15-16 (‘This decision does not involve a bilateral recognition of a Palestinian State, which will depend on future peace negotiations.’). 279 UN, Question of Palestine, p. 16 (‘For Belgium, the resolution adopted today by the General Assembly does not yet constitute a recognition of a State in the full sense. The establishment of a fully legal State must result from negotiations between Israelis and Palestinians.’). 280 UN, Question of Palestine, p. 18 (‘Our vote, however, does not imply formal bilateral recognition of a sovereign Palestinian State. That is a separate question that we will continue to consider within a framework established by international law.’). 281 UN, Question of Palestine, p.

20 (‘Our vote today in favour of the resolution, which accords Palestine nonmember observer State status in the United Nations, is a natural continuation of our firm support for a two-State solution and Palestinian state-building. However, Finland’s vote does not imply formal recognition of a sovereign Palestinian State. That is a separate question and we will determine our national position on the matter in accordance with the procedures set out in the Constitution of Finland.’). 282 UN, Question of Palestine, p. 20 (‘This resolution is a political symbol of the commitment of the United Nations to a two-State solution. New Zealand has cast its vote accordingly based on the assumption that our vote is without prejudice to New Zealand’s position on its recognition of Palestine.’). 283 UN, Question of Palestine, p. 21 (‘Our support of an upgraded status for Palestine in the United Nations does not prejudge the question of recognition. The national procedures to formally recognize the State of Palestine are still pending.’). 284 UN, Question of Palestine, pp. 17-18 (‘In voting for the resolution, Honduras takes no position on the territorial and border claims of the parties, since we also know from the lessons of our own experience that such matters should not be a matter for political pronouncement by third parties.

Such intervention not only exceeds our authority as third parties and our legitimate interest but makes it more difficult to resolve disputes and hardens positions.’).

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Palestine’s statehood to be a legitimate claim which should be achieved in the future (Serbia285 and Greece286). 226. Additionally, several non-recognizing States287 (meaning States that do not recognize Palestine as a State under international law) can be found among the voters ‘in favour’ (for example, Austria, Finland, France, Greece, Italy, New Zealand and Norway) while a good number of States, qualified in the register of the Palestine Mission to the UN as recognizing States, abstained (for example, Hungary, Poland and Romania) or voted against (the Czech Republic). Some voters ‘in favour’ referred to guarantees promised by the Palestinian delegation (for example, Italy)288 while other States did not find them satisfactory and for that reason decided to abstain (for example, the United Kingdom289 and Germany290). 227. When reacting to the outcome of the vote, the Secretary-General gave a very diligently and diplomatically formulated and well-balanced speech describing Palestine’s statehood as something that has yet to be achieved through negotiations. 291 A year later, in his report UN, Question of Palestine, p. 17 (‘Neither a nation whose people was a victim of the Holocaust nor a nation still in quest for its statehood deserves to live in the same precarious state lasting for more than 60 years.’). 286 UN, Question of Palestine, p.

19 (‘Paragraph 5 of the resolution contains an important provision. Greece believes that the inalienable and non-negotiable right of the Palestinian people to statehood can be fulfilled through a results-oriented peace process and direct negotiations between the two parties on all final status issues.’). 287 A list of States having recognized Palestine is available on the website of the Permanent Observer Mission of the State of Palestine to the United Nations, at: http://palestineun.org/about-palestine/diplomatic-relations/. 288 UN, Question of Palestine, pp. 18-19 (‘Italy decided to vote in favour of resolution 67/19. We took that decision in the light of the information we received from President Abbas on the constructive approach he intends to take after this vote. I refer in particular to his readiness to resume direct negotiations without preconditions and to refrain from seeking membership in other specialized agencies in the current circumstances, or pursuing the possibility of the jurisdiction of the International Criminal Court.’). 289 UN, Question of Palestine, pp. 14-15 (‘In support of that objective, we sought a commitment from the Palestinian leadership to return immediately to negotiations, without preconditions. That was the single most important factor shaping our vote.

We also sought an assurance from the Palestinians that they would not pursue immediate action in United Nations agencies and the International Criminal Court, since that would make a swift return to negotiations impossible. We are in no doubt that President Abbas is a courageous man of peace, and we have engaged intensively with the Palestinians ahead of today’s voting to try to secure those assurances. But in their absence, we were not able to vote in favour of the resolution, and we therefore abstained.’). 290 UN, Question of Palestine, p. 19 (‘Yet it must be clear to everybody that a Palestinian State can be achieved only through direct negotiations between Israelis and Palestinians. We believe that there is reason to doubt whether the step taken today is helpful to the peace process at this point in time. We are concerned that it might lead to further hardening of positions instead of improving the chances of reaching a two-State solution through direct negotiations. It is our expectation that the Palestinian leadership will not take unilateral steps on the basis of today’s resolution 67/19 that could deepen the conflict and move us further away from a peaceful settlement.’). 291 UN, Question of Palestine, pp. 12-13. The statement reads in full: ‘An important vote has taken place today in the General Assembly.

The decision by the General Assembly to accord Palestine non-member State status in the United Nations was a prerogative of the Member States. I stand ready to fulfil my role and report to the Assembly as requested in resolution 67/19. My position has been consistent all along. I believe that the Palestinians have a legitimate right to their own independent State. I believe that Israel has the right to live in peace and security with its neighbours. There is no substitute for negotiations to that end. Today’s vote underscores the urgency of a 285

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submitted to the General Assembly on the implementation of Resolution 67/19, he repeated the primarily political impetus and character of the resolution, alongside its necessary legal and procedural consequences to Palestine’s position in the UN. Further, he warned again that the core issues such as ‘territory, security, Jerusalem, refugees, settlements, water’ should be settled through negotiations.292 228. What can be deduced with absolute certainty from the text and the history of the adoption of Resolution 67/19 is that the great majority of States represented at the General Assembly wanted to upgrade Palestine’s formal status in the UN and show political support for its endeavours by giving a political impetus, while waiting for the outcome of the initiated procedure of admission as a full member. 229. Under these circumstances, I find it even more important to be vigilant and not to be satisfied with the hypothesis that the reference to the General Assembly’s vote is in itself sufficient in answering the question presented in the Request.

230. Even if one accepts the interplay of Resolution 67/19 with the accession instrument as a starting point, it would still be necessary to question the pertinence of Resolution 67/19 in defining borders and territories as they are understood in the Request. resumption of meaningful negotiations. We must give a new impetus to our collective efforts to ensure that an independent, sovereign, democratic, contiguous and viable State of Palestine lives side by side with a secure State of Israel. I urge the parties to renew their commitment to a negotiated peace. I count on all concerned to act responsibly, preserve the achievements in Palestinian State-building under the leadership of President Abbas and Prime Minister Fayyad, and intensify efforts towards reconciliation and the just and lasting peace that remains our shared goal and priority.’ 292 General Assembly, Status of Palestine in the United Nations, Report of the Secretary-General, A/67/738, 8 March 2013, para. 31 (emphasis added).

The statement reads, in relevant part: ‘The adoption by the General Assembly of resolution 67/19 on 29 November 2012 by a majority of 138 votes in favour, following a period of prolonged stalemate in the political process, symbolized the growing international impatience with the longstanding occupation and clearly endorsed Palestinian aspirations to live in freedom and dignity in an independent State of their own, side by side with Israel in peace and security. The end to the occupation and to the conflict and the achievement of the two-State solution on the ground is long overdue. This can only be achieved, however, through negotiations to solve all final status issues. […] As Secretary-General, I will continue to do my utmost to achieve a negotiated two-State solution, in accordance with Security Council resolutions 242 (1967), 338 (1973), 1397 (2002), 1515 (2003) and 1860 (2009), that will resolve the core issues - territory, security, Jerusalem, refugees, settlements, water - and constitute the end of the Israeli-Palestinian conflict and all claims related to it. I call on the parties and all stakeholders to act with determination, responsibility and vision. None of the steps to that end are easy, but we cannot afford another year without courageous action for the purpose of achieving the two-State solution reaffirmed by resolution 67/19.’ (emphasis added).

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231. A full reading of Resolution 67/19 reveals that the ‘pre-1967 borders’ type formulas293 are counterbalanced with a continuous warning referring to previous UN resolutions and peace initiatives emphasising the necessity of negotiations on core issues, including borders.294 232. Resolution 67/19 cannot be referred to as proof as far as alleged perfect statehood, precise borders or territory are concerned. It is in fact just the contrary: the carefully chosen formulas counterbalancing each other and the statements made by States show that there was an understanding that these issues could be, should be and would be settled later.

233. Above, I referred to the importance of the counterbalancing formulas in Resolution 67/19. In my view, and without entering again into the analysis of the legal value of General Assembly and Security Council resolutions, the same can be said of nearly all resolutions adopted since the 1990’s. Resolution 67/19. See e.g. p. 2 (‘Reaffirming also its resolutions 43/176 of 15 December 1988 and 66/17 of 30 November 2011 and all relevant resolutions regarding the peaceful settlement of the question of Palestine, which, inter alia, stress the need for the withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem, the realization of the inalienable rights of the Palestinian people, primarily the right to selfdetermination and the right to their independent State, a just resolution of the problem of the Palestine refugees in conformity with resolution 194 (III) of 11 December 1948 and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem.’) (emphasis added). See also p.

2 (‘Reaffirming its resolution 58/292 of 6 May 2004 affirming, inter alia, that the status of the Palestinian territory occupied since 1967, including East Jerusalem, remains one of military occupation and that, in accordance with international law and relevant United Nations resolutions, the Palestinian people have the right to selfdetermination and to sovereignty over their territory.’) (emphasis added). See also pp. 2-3 (‘Reaffirming its commitment, in accordance with international law, to the two-State solution of an independent, sovereign, democratic, viable and contiguous State of Palestine living side by side with Israel in peace and security on the basis of the pre-1967 borders […] Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967; […] Affirms its determination to contribute to the achievement of the inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle East that ends the occupation that began in 1967 and fulfils the vision of two States: an independent, sovereign, democratic, contiguous and viable State of Palestine living side by side in peace and security with Israel on the basis of the pre-1967 borders.’) (emphasis added).

294 Resolution 67/19, Preamble (‘Reaffirming also relevant Security Council resolutions, including resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973, 446 (1979) of 22 March 1979, 478 (1980) of 20 August 1980, 1397 (2002) of 12 March 2002, 1515 (2003) of 19 November 2003 and 1850 (2008) of 16 December 2008 […] Bearing in mind the mutual recognition of 9 September 1993 between the Government of the State of Israel and the Palestine Liberation Organization, the representative of the Palestinian people, Affirming the right of all States in the region to live in peace within secure and internationally recognized borders’) (emphasis added). See also para. 5 (‘Expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace process based on the relevant United Nations resolutions, the terms of reference of the Madrid Conference, including the principle of land for peace, the Arab Peace Initiative and the Quartet road map to a permanent two-State solution to the Israeli-Palestinian conflict for the achievement of a just, lasting and comprehensive peace settlement between the Palestinian and Israeli sides that resolves all outstanding core issues, namely the Palestine refugees, Jerusalem, settlements, borders, security and water.’) (emphasis added). 293

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234. Their ‘pre-1967 borders’ type formulas do not stand alone: they should be read alongside the references to Oslo I and Oslo II, the Road Map (which is very clear about when and how Palestine’s borders will be established)295 and the Quartet,296 or even with direct reference to negotiations on borders and recalling the previously adopted resolutions containing the same See Israel-Palestinian Peace Process: The Middle East Roadmap, 30 April 2003 (‘Phase I: Ending Terror And Violence, Normalizing Palestinian Life, and Building Palestinian Institutions. […] Phase II: Transition […] Progress into Phase II will be based upon the consensus judgment of the Quartet of whether conditions are appropriate to proceed, taking into account performance of both parties. Furthering and sustaining efforts to normalize Palestinian lives and build Palestinian institutions, Phase II starts after Palestinian elections and ends with possible creation of an independent Palestinian state with provisional borders in 2003.

Its primary goals are continued comprehensive security performance and effective security cooperation, continued normalization of Palestinian life and institution-building, further building on and sustaining of the goals outlined in Phase I, ratification of a democratic Palestinian constitution, formal establishment of office of prime minister, consolidation of political reform, and the creation of a Palestinian state with provisional borders. International Conference: Convened by the Quartet, in consultation with the parties, immediately after the successful conclusion of Palestinian elections, to support Palestinian economic recovery and launch a process, leading to establishment of an independent Palestinian state with provisional borders. [...] Creation of an independent Palestinian state with provisional borders through a process of Israeli-Palestinian engagement, launched by the international conference. As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders. Enhanced international role in monitoring transition, with the active, sustained, and operational support of the Quartet. Quartet members promote international recognition of Palestinian state, including possible UN membership.

[…] Phase III: Permanent Status Agreement and End of the Israeli-Palestinian Conflict - 2004 - 2005 […] Progress into Phase III, based on consensus judgment of Quartet, and taking into account actions of both parties and Quartet monitoring. Phase III objectives are consolidation of reform and stabilization of Palestinian institutions, sustained, effective Palestinian security performance, and IsraeliPalestinian negotiations aimed at a permanent status agreement in 2005. Second International Conference: Convened by Quartet, in consultation with the parties, at beginning of 2004 to endorse agreement reached on an independent Palestinian state with provisional borders and formally to launch a process with the active, sustained, and operational support of the Quartet, leading to a final, permanent status resolution in 2005, including on borders, Jerusalem, refugees, settlements; and, to support progress toward a comprehensive Middle East settlement between Israel and Lebanon and Israel and Syria, to be achieved as soon as possible.

[...] Parties reach final and comprehensive permanent status agreement that ends the Israel-Palestinian conflict in 2005, through a settlement negotiated between the parties based on UNSCR 242, 338, and 1397, that ends the occupation that began in 1967, and includes an agreed, just, fair, and realistic solution to the refugee issue, and a negotiated resolution on the status of Jerusalem that takes into account the political and religious concerns of both sides, and protects the religious interests of Jews, Christians, and Muslims worldwide, and fulfills the vision of two states, Israel and sovereign, independent, democratic and viable Palestine, living side-by-side in peace and security.’) (emphasis added). 296 United Nations System: The Quartet, https://www.un.org/unispal/un-system/un-system-partners/the-quartet (‘The Quartet, comprised of the European Union, Russia, United Nations, and United States was established in 2002 to facilitate the Middle-East Peace Process negotiations. The Quartet was welcomed in United Nations Security Council resolution 1397 (2002) following the Second Intifada.

The Quartet’s principals, namely the EU High Representative for Common Foreign and Security Policy, the Foreign Minister of Russia, the UN SecretaryGeneral, and the United States Secretary of State have met 54 times since 2002 in furtherance of their Performance-based Road Map to a Permanent Two-State Solution. The Road Map, endorsed in Security Council resolution 1515 (2003) called for a three-phased performance-based strategy to move the peace process towards a final resolution of the conflict. The Quartet is guided by three overarching Principles – nonviolence, recognition of Israel, and acceptance of previous agreements – in furthering the Middle East peace process. The Quartet’s first report, addressing major threats to the peace process and providing recommendations for advancing the two-state solution, was released in July 2016.’). 295

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elements, such as Security Council Resolution 1397 of 12 March 2002,297 Resolution 1515 of 19 November 2003298 and Resolution 1850 of 16 December 2008.299 The same can be said regarding most of the statements pronounced in the Security Council on 11 February 2020.300 235. The ‘pre-1967 borders’ type formulas are cited in abundance in the Request. However, the formulas referring to negotiations on borders are much less cited and the few existing references are not presented in conjunction with the ‘pre-1967 borders’ formula, contrary to the original wording. 236. The same stands for the Request’s presentation of the ICJ advisory opinion on the Wall,301 which mostly deals with the obligations under the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949302 (the ‘Geneva Convention IV’) and under the Hague Convention on Laws and Customs of War of 1907303 (‘The Hague Convention IV’). 237. Important dicta are cited from this advisory opinion in the Request,304 but they deal only with the rights and obligations of Israel, which was considered by the ICJ an occupying power 297

Security Council, Resolution 1397, 12 March 2002, S/RES/1397. Security Council, Resolution 1515, 19 November 2003, S/RES/1515 (the ‘Resolution 1515’). 299 Security Council, Resolution 1850, 16 December 2008, S/RES/1850 (the ‘Resolution 1850’) . 300 See e.g.: (i) Mr. Mahmoud Abbas’ references to the pre-1967 borders but also to Oslo, Resolution 1515, Security Council, Resolution 2334, 23 December 2016, S/RES/2334 (the ‘Resolution 2334’), and the Quartet rules; (ii) the Israeli representative’s statement on the Oslo committment to negotiations of borders; (iii) the United States representative’s statement on President Trump’s proposal as a starting point for negotiations; (iv) the French representative’s reference to the importance of the Security Council resolutions and the United States proposal; (v) the Estonian delegate’s statement on pre-1967 lines and the resumption of negotiations to resolve all permanent status issues related to borders and Jesusalem; (vi) the German delegate’s speech on pre-1967 lines and statement that ‘questions of borders, Jerusalem, security and refugees must be resolved through direct negotiations between Israelis and Palestinians’; (vii) the reference by Vietnam’s representative to Security Council resolutions and particularly Resolution 2334; (viii) Belgium’s statement on pre-1967 borders and Security Council resolutions; (ix) Russia’s statement

on pre-1967 borders and the Quartet principles; (x) Saint Vincent and Grenadines’ statement on pre-1967 borders; (xi) China’s statement on the relevant resolutions; (xii) South Africa’s statement on the lack of progress; (xiii) the United Kingdom representative’s statement supporting President Donald Trump’s proposal; (xiv) Tunisia’s remark on the role of the Security Council in the achievement of the ‘two State’ solution; (xv) Indonesia’s statement on the 1955 Bandung principles and the observation of the internationally agreed parameters for the solution; (xvi) the League of Arab Nations’ representative’s statement criticizing the United States proposal and describing it as unilaterally favoring Israel. See https://www.un.org/press/en/2020/sc14103.doc.htm. 301 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, 9 July 2004 (‘ICJ Wall Advisory Opinion’). 302 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 United Nations Treaty Series 973. 303 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, The Hague. 304 Request, para. 78. 298

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under the Geneva and The Hague Conventions. The cited dicta and the advisory opinion as a whole may hardly be cited in support of actual or envisaged territories and borders. Even the ICJ warned about the need for a correct, contextual interpretation.305

238. The Prosecutor’s primary position and the Majority Decision attribute a decisive effect to the interplay of Resolution 67/19 and the Palestine ICC accession instrument as transmitted by the Secretary-General acting as depositary of the Rome Statute. 239. The Secretary-General often faces a dilemma on how to proceed when the General Assembly is unable to take a clear direction,306 such as when it is impossible to assume that the General Assembly has given ‘unequivocal indications […] that it considers a particular entity to be a State.’307 ICJ Wall Advisory Opinion, para. 162 (‘The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law and has stated the legal consequences that are to be drawn from that illegality. The Court considers itself bound to add that this construction must be placed in a more general context. 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.