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

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.’) (emphasis added). 306 United Nations, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1 (1999) (‘Secretary-General Summary of Practice’), para.

82 (‘This practice of the SecretaryGeneral became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby “the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.”’), para. 83 (‘The “practice of the General Assembly”, referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the “Vienna formula”. Such indications are to be found in General Assembly resolutions, for example in resolutions 3067 (XXVIII) of 16 November 1973, in which the Assembly invited to the Third United Nations Conference on the Law of the Sea, in addition to States at that time coming within the long-established “Vienna formula”, the “Republic of GuineaBissau” and the “Democratic Republic of Viet Nam”, which were expressly designated in that resolution as “States”.’). 307 Secretary-General Summary of Practice, para. 83. 305

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240. In my view, a thorough review of the text and the debate of Resolution 67/19 makes it clear that the condition of ‘unequivocal indications’ is hereby not fulfilled. I believe that we must not underestimate the value of the Secretary-General’s perception of his task as depositary, as he underlined it in the administrative circular communicated on the day following the transmission of the Palestinian accession instrument. He stated: ‘This is an administrative function performed by the Secretariat as part of the Secretary-General’s responsibilities as depositary for these treaties. It is important to emphasize that it is for States to make their own determination with respect to any legal issues raised by instruments circulated by the Secretary-General.’308 241. It is important to read this statement in conjunction with the Secretary-General’s own ‘disclaimer’ message transmitted some months earlier through his spokesperson which is a quasi warning against a hurried automatism.309 242. The perception of neutrality and the emphasis placed on the administrative observance and control while leaving the task of the decision in merito to the States themselves seems to be the main approach of the successive Secretary-Generals.

This policy is quasi the same when United Nations Secretary-General Statement, ‘Note to correspondents – Accession of Palestine to multilateral treaties’ (7 January 2015) (‘Many reporters have been asking about the documents transmitted by the Permanent Observer of Palestine to the United Nations relating to the accession of Palestine to 16 multilateral treaties in respect of which the Secretary-General is the depository, including the Rome Statute of the International Criminal Court. In conformity with the relevant international rules and his practice as a depositary, the Secretary-General has ascertained that the instruments received were in due and proper form before accepting them for deposit, and has informed all States concerned accordingly through the circulation of depositary notifications. The information is public and posted on the website of the UN Treaty Section (https://treaties.un.org/pages/CNs.aspx). This is an administrative function performed by the Secretariat as part of the Secretary-General’s responsibilities as depositary for these treaties. It is important to emphasize that it is for States to make their own determination with respect to any legal issues raised by instruments circulated by the Secretary-General.’).

309 United Nations, Daily Press Briefing by the Office of the Spokesperson for the Secretary-General, 10 April 2014 (‘[O]n 2 April, the Secretary-General in his capacity as depository received from the Permanent Observer Mission of the State of Palestine through the United Nations copies of instruments of accession to 14 multilateral treaties. In conformity with the relevant international rules and in his practice as depository, the Secretary-General has ascertained through his Office of Legal Affairs and more specifically through the Treaty Section in the Office of Legal Affairs that the instruments received were in due and proper form before accepting them for deposit and has informed all States concerned accordingly, through the circulation of depository notification. Now, if I can explain that in slightly less legal terms, as depository, when these instruments are deposited, it’s up to the Treaty Section in the Office of Legal Affairs to kind of go through an administrative check list that verifies the conditions for participation with the relevant provision of each treaty; also, verifies that the instruments are in proper and due form, which mainly means the instrument of accession include clear and fair expression of commitment to undertake the rights and obligations to the treaty, that it’s signed by the right people.

So it’s really, I would say an administrative function performed by the Secretariat as part of the Secretary-General responsibility as depository of the treaty. But I think it’s also important to emphasize that it is for States, each individual Member States, to make their own determination with respect to any legal issues raised by instruments circulated by the SecretaryGeneral.’). 308

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individual States act as depositaries310 and coincides with the interpretation of the International Law Commission.311 243. While arguendo the behaviour of States within the ASP in the five years following Palestine’s solemn admission might eventually be taken into consideration by the Chamber as an additional factor to consider when dealing with Palestine’s statehood,312 this, nevertheless, cannot play any role vis-à-vis the question of borders, which manifestly lies outside the ASP’s competences. 244. It is true that Palestine’s status can eventually be addressed under the concept of ‘State for the purposes of the Statute under international law’ (as suggested in the ‘alternative position’ of the Request) 313 and that this approach may be substantiated by remarkable doctrinal support.314 However, the question of territory remains to be answered. S. Sakran and M. Hayashi, ‘Palestine’s Accession to Multilateral Treaties: Effective Circumvention of the Statehood Question and its Consequences’ in 25 Journal of International Cooperation Studies 81 (2017), pp. 84, 86. 311 United Nations, Yearbook of the International Law Commission, Volume II (1966), p.

270 (‘In this connexion, as in others, although the depositary has the function of making a preliminary examination of the matter, it is not invested with competence to make a final determination of the entry into force of the treaty binding upon the other States concerned. However normal it may be for States to accept the depositary’s appreciation of the date of the entry into force of a treaty, it seems clear that this appreciation may be challenged […] the depositary is not invested with any competence to adjudicate upon or to determine matters arising in connexion with the performance of its functions.’), https://legal.un.org/ilc/publications/yearbooks/english/ilc_1966_v2.pdf; L. Caflisch, ‘Art. 76’ in O. Corten and P. Klein (eds) The Vienna Conventions on the Law of Treaties: A Commentary (2011), p. 1712 (‘Suffice it to note here that, according to Article 76(2), those functions are “international in character”, this assertion being corroborated by the appeal addressed to the depositary to act “impartially”. In this connection, the ILC’s commentary on Article 76(2) stresses the “representative” character of the depositary’s functions, that is, the fact that the depositary acts on behalf of the contracting parties as a whole, which obviously presupposes the independence and the international character of the depositary’s functions.

[…] When performing depositary functions, a State or organization must therefore avoid favouring its own political objectives.’). 312 See the election of the State of Palestine to the Bureau of the ASP in December 2017 (See ASP, Press Release, ‘Assembly of States Parties to the Rome Statute elects a new President and six judges’) and the Communication of Canada, 23 January 2015 (‘In that context, the Permanent Mission of Canada notes that “Palestine” does not meet the criteria of a state under international law and is not recognized by Canada as a state. Therefore, in order to avoid confusion, the Permanent Mission of Canada wishes to note its position that in the context of the purported Palestinian accession to the Rome Statute of the International Criminal Court, “Palestine” is not able to accede to this convention, and that the Rome Statute of the International Criminal Court does not enter into force, or have an effect on Canada’s treaty relations, with respect to the “State of Palestine”.’). No other State Party seemingly followed Canada’s example and no further formal objections or communications were submitted. 313 See Request, paras 9, 43, 101-103. 314 A. Pellet, ‘The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction’ in C. Meloni and G. Tognoni (eds) Is there a Court for Gaza? A Test Bench for International Justice (2012), p.

425 (In the context of Palestine’s 2009 Declaration, Pellet states: ‘[I]t appears to me that the Court does not, for the reasons developed above, need to pronounce, in theory, on the issue of whether, “in absolute”, Palestine is or not a State. This would necessitate for it to decide between the sovereign assessments of the States that constitute the international society (and that have a power of appreciation for that purpose) whereas they are deeply divided. Rather, it just has to acknowledge that, whatever the situation in other cases, for the purpose of the Rome Statute, 310

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245. The real and persisting problem in answering the question concerning the geographical scope of the Court’s jurisdiction and the Prosecutor’s investigation is linked to the fact that, currently, there are no precise settled borders either at the bilateral Israeli-Palestinian level or at any multilateral level. Instead, UN Resolutions merely allude to the necessity of engaging in bilateral negotiations on the issue of borders, using varying formulas of the pre-1967 borders. These formulas are similar but not identical as the emphasis placed on the 1967 borders in each of them is far from being the same.315 246. This leads to the conclusion that the Majority’s reference to the interplay between Resolution 67/19 and the accession instrument, its ensuing sole reliance on article 125(3) of the Statute and its subsequent interpretation through article 21(1)(a) of the Statute alone, is insufficient and, in my view, not adequately substantiated.

247. Before attributing any decisive role to a particular (and, in my view, improper) interpretation of Resolution 67/19, it is important to examine this interpretation in light of the resolutions that were adopted concerning various aspects of the Question on Palestine. It is worth analyzing the General Assembly’s subsequent practice. In the years following the adoption of Resolution 67/19, the General Assembly adopted a number of resolutions dealing with different aspects of the Palestinian situation. These resolutions referred to the importance of the Road Map of the Quartet and stated that full-fledged statehood would only be achieved this Declaration could be made in accordance with the provisions of Article 12 and that it can have the effects specified by Article 13.’). This legal opinion was co-signed by 38 professors, including Georges Abi-Saab, Cherif Bassiouni, Benedetto Conforti, Luigi Condorelli, Zdzislaw Galicki, Vera Gowlland-Debbas, Djamchid Momtaz, William Schabas, and Linos-Alexander Sicilianos. 315 See e.g.

‘territories occupied since 1967’ (Resolution 2334), ‘Palestinian Territory occupied since 1967’ (Resolution 67/19), ‘two-State solution based on the 1967 lines’ (General Assembly, Resolution 73/18, 30 November 2018, A/RES/73/18 (the ‘Resolution 73/18’)), ‘not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations’ (Resolution 2334), ‘comprehensive negotiated peace settlement in the Middle East resulting in two viable, sovereign and independent States, Israel and Palestine, based on the pre-1967 borders’ (General Assembly, Resolution 58/92, 30 November 2018, A/RES/58/92), ‘on the basis of the pre-1967 borders’ (Resolution 73/18), ‘based on the 1967 lines and on the basis of relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet road map.’ (Resolution 2334).

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at the end of the third phase of the Road Map.316 It must be emphasised that these resolutions also contain references to Resolution 67/19.317 248. Several of these resolutions contain the same language as Resolution 67/19,318 namely the call to UN Member States and UN specialized agencies ‘to continue to support and assist the Palestinian people in the early realization319 of their right to self-determination, including the right to their independent State of Palestine.’320 249. Other frequently used wording – using a slightly different structure – reads as follows: The General Assembly […] 1. Reaffirms the right of the Palestinian people to self-determination, including the right to their independent State of Palestine. 2. Urges all States and the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to selfdetermination.321 250. It is also worth examining the following formula: ‘The General Assembly […] [u]rges all States and the United Nations […] to support the development and strengthening of Palestinian institutions and Palestinian State-building efforts in preparation for independence.’322 251.

These formulas (‘early realization’ — in French: ‘en vue de la réalisation rapide’ – and ‘in preparation for independence’) can hardly be interpreted as referring to an already existing, independent and sovereign State. See e.g. General Assembly, Resolution 74/11, 3 December 2019, A/RES/74/11 (the ‘Resolution 74/11’), paras 1, 2. See also Resolution 74/10, 3 December 2019, A/RES/74/10 (the ‘Resolution 74/10’), para. 4; Resolution 73/89, 6 December 2018, A/RES/73/89; Resolution 73/158, 17 December 2018, A/RES/73/158 (the ‘Resolution 73/158’), Preamble; Resolution 73/19, 30 November 2018, A/RES/73/19 (the ‘Resolution 73/19’), Preamble and para. 4; Resolution 72/160, 19 December 2017, A/RES/72/160 (the ‘Resolution 72/160’), Preamble; Resolution 71/184, 19 December 2016, A/RES/71/184 (the ‘Resolution 71/184’), Preamble; Resolution 71/97, 6 December 2016, A/RES/71/97, Preamble; Resolution 70/225, 22 December 2015, A/RES/70/225 (the ‘Resolution 70/225’), Preamble; Resolution 70/141, 17 December 2015, A/RES/70/141 (the ‘Resolution 70/141’), Preamble; Resolution 69/20, 25 November 2014, A/RES/69/20 (the ‘Resolution 69/20’), Preamble, para. 4; Resolution 68/12, 26 November 2013, A/RES/68/12 (the ‘Resolution 68/12’), Preamble, para. 4. 317 See e.g.

Resolution 74/11; Resolution 73/158; Resolution 72/160; Resolution 71/184; Resolution 70/225; Resolution 70/141; Resolution 69/20; Resolution 68/12. 318 Resolution 67/19, para. 6. 319 Resolution 67/19, para. 6 (emphasis added). 320 See e.g. Resolution 74/10, para. 8; Resolution 73/18, para. 8; Resolution 69/20, para. 8. 321 See e.g. Resolution 73/158; Resolution 72/160; Resolution 71/184; Resolution 70/141; Resolution 68/12. 322 See Resolution 74/11, para. 14; Resolution 73/19, para. 25; General Assembly, Resolution 72/14, 7 December 2017, A/RES/72/14, para. 26 (emphasis added). 316

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252. This means that, even years after the adoption of Resolution 67/19, the General Assembly still does not consider Palestine’s statehood to be already existing and fully fledged, but rather as an aim to be achieved. As the President of the 75th General Assembly admitted on 1 December 2020, when touching upon the question of the partition and Resolution 181(II): ‘[I]n the seven decades that followed, we have failed to establish a State for the Palestinian people’.323 253. It is clear from the statements made by the permanent members of the Security Council (China,324 France,325 Russia,326 the United Kingdom,327 and the United States of America328), 323

Observance of the International Day of Solidarity with the Palestinian People, Statement by H.E. Volkan Bozkir, President of the 75th session of the United Nations General Assembly, 1 December 2020. 324 Permanent Mission of the People’s Republic of China to the UN, ‘Remarks by Amb. Zhang Jun at Security Council VTC on the Situation in the Middle East, including the Palestinian Question’, 21 July 2020 (‘China is also deeply concerned about reports of the plan to annex part of the occupied Palestinian territory. Such a plan, if implemented, will seriously violate international law and relevant UN resolutions, and imperil the “two-state solution.” […] It’s a critical moment to advance the Middle East peace process and resume equal and meaningful peace talks between Palestine and Israel. International agreements such as relevant UN resolutions, the “land for peace” principle and the two-state solution are important parameters in the Middle East peace process. […] During a phone talk with President Abbas Yesterday, President Xi Jinping reiterated China’s firm support for Palestine’s just demands, the “two-state solution”, as well as all efforts conducive to resolving the Palestine question.’). 325 Permanent Mission of France to the United Nations in New York, ‘Statement by Mr.

Nicolas de Riviere, Permanent Representative of France to the United Nations, at the Security Council’, 21 July 2020 (‘[O]nly the two-state solution will respond to the aspirations of the Palestinians and guarantee Israel’s security, with which France will never compromise. […] Any annexation of territory would also deal an irreversible blow to the peace process, as well as to the two-State solution.’). 326 Permanent Mission of the Russian Federation to the United Nations, ‘Statement by Dmitry Polyanskiy, First Deputy Permanent Representative of Russia to the UN, at the VTC of UNSC members on the situation in the Middle East, including Palestinian question’, 21 July 2020 (‘The Palestinian question is central to the entire Middle East. We have passed the date of July 1, after which the Israeli parliament threatened to begin discussing plans for the annexation of the West Bank of the Jordan River. No action has yet been taken, but it is important to understand that implementation of these plans may close the door for prospects for the two-state principle of the settlement and might lead to the consequences that would only exacerbate the situation.

[…] As a permanent member of the UN Security Council and the Quartet of international mediators Russia is ready to undertake efforts in the interests of achieving a settlement within the internationally recognized parameters - UN resolutions, Madrid principles, the Arab Peace Initiative - which provide for the creation of an independent, sovereign and territorially contiguous Palestinian state within 1967 borders with East Jerusalem as its capital.’). 327 Ambassador Jonathan Allen, United Kingdom Chargé d’Affaires to the UN, Statement by Ambassador Jonathan Allen, UK Chargé d’Affaires to the UN, at the Security Council briefing on the Middle East, 21 July 2020 (‘Settlement construction in these highly sensitive areas threatens to further undermine the viability of a future Palestinian state with its capital in East Jerusalem. […] We support a negotiated settlement leading to a safe and secure Israel living alongside a viable and sovereign Palestinian state based on 1967 lines with agreed land swaps, Jerusalem as the shared capital of both states and a just fair, agreed and realistic settlement for refugees.’). 328 United States Mission to the United Nations, ‘Remarks at a UN Security Council Briefing on the Situation in the Middle East (via VTC)’, 21 July 2020 (‘The status quo is a failure.

We should be discussing how to get responsible Israeli and Palestinian leadership to sit down at the negotiating table. […] In fact, we’ve seen more discussion of the potential punitive responses against Israel, rather than discussion of productive ways to engage in peace and encourage the Palestinians to come to the negotiating table.’).

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by the current elected member States (Belgium, 329 the Dominican Republic, 330 Estonia, 331 Germany, 332 Indonesia, 333 Niger, 334 Saint Vincent and the Grenadines, 335 South Africa, 336 Kingdom of Belgium, ‘Statement delivered by Marc Pecsteen de Buytswerve, Permanent Representative of Belgium to the United Nations’, 21 July 2020 (‘[A]nnexation would undermine all efforts aimed at restarting negotiations and would mean the end of the two-state solution. […] The peaceful resolution of the IsraeliPalestinian conflict can be an important driver for peace and stability in a volatile region. It is therefore necessary that the international community redoubles its efforts with the view of achieving a just and durable peace that is rooted in international law, including the resolutions of this Council. Belgium will support all efforts in this regard, including in the framework of the Middle East Quartet.’). 330 Security Council, Press Release, ‘Palestinians Witnessing “Crushing of Their Dream” of Own Independent, Sovereign State, Veteran Academic Tells Security Council’, 21 July 2020, SC/14258 (‘SC/14258’) (‘But Palestinian national unity and Israeli political will need to precede any meaningful dialogue.

The only way forward for Palestinians and Israelis is to negotiate their way out of this long and painful conflict and lead their own paths towards lasting peace for present and future generations.’). 331 Permanent Mission of Estonia to the United Nations, Estonia’s Statement at UN Security Council VTC Meeting on Middle East, 21 July 2020 (‘Estonia remains committed to a negotiated two-State solution, based on internationally agreed parameters and relevant UN resolutions, taking into account the legitimate aspirations of both parties and Israeli security concerns. We have taken note of the announcements on the readiness of the Palestinian Authority to resume peace negotiations as well as the counter-proposal submitted to the Middle East Quartet. […] A possible annexation by Israel of parts of the occupied West Bank would undermine the prospects for a negotiated two state solution and threaten the stability of the region. […] We are also concerned about the announcement by the Palestinian leadership regarding the suspension of agreements with Israel, including in the area of security cooperation. We call on the Palestinian Authority to reconsider this decision.

[…] We encourage all Palestinian factions to work towards reconciliation, which would enable them to address common challenges and the needs and expectations of the Palestinian population and is essential in order to reach the two state solution.’). 332 Permanent Mission of the Federal Republic of Germany to the United Nations, ‘Statement by State Secretary Miguel Berger in the Security Council VTC Meeting on the situation in the Middle East’, 21 July 2020 (‘Our briefers have cited voices that call into question whether we can still speak of a peace process twenty-six years after Oslo. Yet, their presentations underscore that the negotiated two-state solution remains the only viable solution to the conflict – and it still enjoys public support. It meets Israeli and Palestinian security needs, fulfils legitimate Palestinian aspirations for statehood, ends the occupation, resolves all permanent status issues, and guarantees equal rights for all inhabitants based on international law and the relevant UN resolutions. […] Annexation would severely undermine, if not render impossible, the resumption of direct negotiations between Israelis and Palestinians. Instead, it would bring them closer to a one-state reality.’).

333 Permanent Mission of the Republic of Indonesia to the United Nations, https://kemlu.go.id/newyorkun/en/read/indonesia-desak-israel-batalkan-rencana-aneksasi/3850/etc-menu. See also SC/14258. 334 Press Release SC/14258 (‘Niger’s representative said that […] it is incumbent today on the Council, the Quartet and the international community to spare no effort to relaunch the Israeli-Palestinian peace process on the basis of unanimously accepted ideals and principles, in particular through resolution 1515 (2003) which enshrines the two-State solution.’). 335 Press Release SC/14258 (‘The representative of Saint Vincent and the Grenadines, welcoming the Palestinian Authority’s willingness to resume negotiations with Israel under the auspices of the Middle East Quartet, said that direct negotiations can bolster the prospects for a negotiated two-State solution.’).

336 Republic of South Africa, Department of International Relations and Co-operation, Press Release, ‘Statement by Ambassador Jerry Matjila, Permanent Representative of South Africa to the United Nations, during the Security Council Open Video Teleconference Meeting on the situation in the Middle East, including the question of Palestine’, 21 July 2020 (‘South Africa, once again, reiterates our full support for a two-State solution with the establishment of a viable, contiguous Palestinian state, existing side-by-side and in peace with Israel, within internationally recognised borders, based on those of 4 June 1967, with East Jerusalem as its capital, in line with all relevant UN resolutions, international law and internationally agreed parameters.’). 329

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Tunisia,337 and Vietnam338) at the 21 July 2020 meeting, and by other States such as Cuba,339 Japan, 340 Kuwait, 341 Liechtenstein, 342 Malaysia, 343 Norway, 344 the United Arab Emirates 345 Press Release SC/14258 (‘Tunisia’s representative said that it is regrettable and scandalous that Israel, the occupying Power, persists in blatantly disregarding all legal obligations and repeated calls by the international community for ending its illegal occupation of the Palestinian territory. The Quartet, with the support of the Council and other international actors, could live up to the challenge of preserving a two-State solution and relaunching the peace process.’). 338 Permanent Mission of the Socialist Republic of Vietnam to the United Nations, ‘Statement by H.E. Ambassador Dang Dinh Quy Permanent Representative of Viet Nam to the United Nations at the UNSC open VTC on “The situation in the Middle East, including the Palestinian question”’, 21 July 2020 (‘If realized, the plans would exert severe and irreversible impacts on the viability of the two-State solution, as well as to peace and stability in the Middle East region. Such annexation would be a serious violation of international law, the Charter of the United Nations, and would also run counter to the long term interests of the Israelis themselves.

[…] We welcome the recent statement by President Mahmoud Abbas that the Palestinian Authority is ready to resume the long-stalled peace talks with Israel. We express our appreciation for the determination of the SecretaryGeneral and the Special Coordinator in engaging with all related parties to restart dialogue and alleviate Palestinians’ hardship. We commend the multiple efforts by various interested parties, including the Quartet, to resume negotiations in a creative and sustainable manner. […] It is critical to strive to ensure the legitimate interests of parties concerned, as well as promote peace, stability and development in the Middle East. The only option toward that end is the two-state solution.’). 339 Permanent Mission of Cuba to the United Nations, Press Release, ‘Cuba declares to the Security Council that even in the midst of the pandemic, Israel continues to violate the UN Charter and international law,’ 21 July 2020 (‘Cuba has fully supported a comprehensive, just and lasting solution to the Israeli-Palestinian conflict, which allows the Palestinian people to exercise the right to self-determination and establish an independent and sovereign State in the pre-1967 borders, with East Jerusalem as its capital, and guarantees the refugees’ right to return.’). 340 Permanent Mission of Japan to the United Nations, ‘Statement by H.E.

Ambassador ISHIKANE Kimihiro, Permanent Representative of Japan to the United Nations, United Nations Security Council Open VTC on the Middle East’, 21 July 2020 (‘Japan remains committed to supporting a two-state solution. The conflict between the Israeli and the Palestinian sides should be resolved only through negotiations, based on the relevant Security Council resolutions and known parameters. We are very concerned about the continued settlement activities by Israel, including the demolition of Palestinian-owned structures, which undermines efforts toward a peaceful resolution. If the “application of sovereignty” to the West Bank were to be unilaterally put into effect by Israel, irrespective of the territorial scope of such measures, it would severely undermine mutual confidence between the parties toward achieving a two-state solution and might lead to the destabilization of the region.’). 341 Kuwait News Agency, Press Article, ‘Kuwait Calls on Ending Israeli Crimes in Palestine’ (22 July 2020) (‘Mansour al Otaibi, permanent representative […] reaffirmed Kuweit’s commitment to the views of the Arab and Islamic World on the peace process and the two-states solutions and having an independent Palestinian State with Jerusalem as capital.’). 342 Permanent Mission of the Principality of Liechtenstein to the United Nations, ‘Statement Attributable to H.E.

Ambassador Christian Wenaweser, Permanent Representative of the Principality of Liechtenstein to the United Nations’, 21 July 2020 (‘Far from making Israel more secure, annexation undermines the prospect of a two-state solution based on applicable international law, in particular international humanitarian law, and relevant Security Council resolutions, which remain the only viable pathway to a sustainable solution to the Israeli-Palestinian conflict.’). 343 Permanent Mission of Malaysia to the United Nations, ‘Statement by H.E. Syed Mohamad Hasrin Aidid, Permanent Representative of Malaysia to the United Nations at the Security Council Open VTC on the Situation in the Middle East, Including the Palestinian Question’, 21 July 2020 (‘A just, comprehensive and lasting solution is only possible through a negotiated political settlement – a process that the international community and this august body must actively pursue. […] We also reaffirm our support on establishing an independent State of Palestine.’). 344 Permanent Mission of Norway to the United Nations, ‘Statement by Ambassador Mona Juul in the Open Debate on Situation in the Middle East, including the Palestinian Question’, 21 July 2020 (‘Annexation violates international law, and it would undermine the possibility of establishing a contiguous Palestinian state and the prospects of achieving a lasting peace.

[…] Existing agreements and relevant UN resolutions should form the 337

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(also on behalf of the Group of Member States of the Organization of Islamic Cooperation) and the European Union,346 during the discussion regarding the Palestinian situation, on the basis of the newest report submitted and presented by the UN Special coordinator for the Middle East,347 that they all spoke of the two-State solution as an aim still to be achieved. In their criticism of the Israeli annexation plans, all elected and permanent members with the exception of the US, which viewed the present criticism as unjustified, shared the perception that the plans were a threat to the two-State solution or an attempt to stabilize a de facto one-State solution. Thus, to this day, the Security Council has interpreted Palestine’s status as a special entity deserving statehood, but whose genuine statehood is yet to be realized. 254. This is consistent with the Secretary-General’s position, as expressed in his report of July 2020, that dangerous steps ‘systematically erod[e] the possibility of establishing a contiguous, independent and sovereign Palestinian State’. 348 The terms ‘possibility of establishing’ can basis for the resumption of talks. Under the Oslo Accords, the parties have undertaken to resolve all outstanding issues, including borders, security, refugees and Jerusalem, in the final-status negotiations.

There is a strong international consensus that only a negotiated two-state solution can lead to a durable peace between the Israelis and the Palestinians.’). 345 Permanent Mission of the United Arab Emirates to the United Nations, ‘OIC Underscores Need to Salvage Prospects for Peace Between Palestine, Israel’, 21 July 2020 (‘On behalf of the Group of Member States of the Organization of Islamic Cooperation (OIC) in its capacity as Chair, the UAE urged the international community to salvage the prospects of peace between Palestine and Israel during the UN Security Council quarterly open debate on the situation in the Middle East, including the Palestinian Question. […] We are determined to support the Palestinian people and protect the two-state solution, with a Palestinian state living side-by-side with Israel in peace, security and mutual recognition. […] OIC Member States reiterated their call to support the Palestinian people in exercising their legitimate rights, including their right to self-determination and sovereignty over the territory of the State of Palestine, based on the 4 June 1967 borders, with East Jerusalem as its capital.’). 346 Delegation of the European Union to the United Nations, ‘Statement by H.E. Mr.

Olof Skoog, Head of Delegation, Delegation of the European Union to the United Nations, at the Security Council Open VTC on the Situation in the Middle East’, 21 July 2020 (‘The European Union remains united in its commitment to achieving a two-state solution that meets Israeli and Palestinian security needs and Palestinian aspirations for statehood and sovereignty, ends the occupation that began in 1967, and resolves all permanent status issues in order to end the conflict.’). 347 The Office of the United Nations Special Coordinator for the Middle East Peace Process, ‘Security Council Briefing on the Situation in the Middle East, Including the Palestinian Question (as Delivered by UN Special Coordinator Mladenov)’, 21 July 2020 (addressing the necessity of ‘preserv[ing] the prospect for a two-state solution’ and of ‘identify[ing] realistic steps to avoid increasing polarisation and advance the goal of two states’ and ‘to regain the path towards a negotiated two-state solution.’). 348 Security Council, ‘Implementation of Security Council Resolution 2334 (2016): Report of the SeretaryGeneral’, 18 June 2020, S/2020/555, para.

55 (‘For over 25 years, Palestinians have believed that the peaceful pursuit of their right to self-determination, through meaningful negotiations, would result in an independent, contiguous and sovereign state of their own – Palestine, living side-by-side with Israel, in peace, with secure and recognized borders, and with Jerusalem as the capital of both States. I have always shared this belief. However, unilateral Israeli annexation of any part of the occupied West Bank would effectively close the door for a renewal of negotiations and destroy the prospect of a viable Palestinian State and the two-State solution. This would be calamitous for Palestinians, Israelis and the region. I cannot overemphasize the urgency of reversing this dangerous trajectory.’), para. 57 (‘I reiterate that Israeli settlements in the occupied West Bank, including East Jerusalem, have no legal validity and constitute a flagrant violation under international law. The establishment

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hardly be understood to mean that the Secretary-General considered the ‘independent and sovereign Palestinian State’ to be a reality. The Office of the Secretary-General, Mr. Guterres, when welcoming on 13 August 2020 the conclusion of an agreement (the so-called ‘Abraham accords’) between Israel and the United Arab Emirates,349 once again spoke of the State of Palestine and of the two-State solution only in future terms. 350 This coincides with the perception of Palestine’s status as expressed by Prime Minister Mohammed Shtayyeh at a press conference on 9 June 2020 when informing the media about the content of a letter, addressed some days earlier to the members of the Quartet and containing an alternative to the ‘deal of the century’ project. 351 President Mahmoud Abbas’ spokesman made a similar statement a and expansion of settlements fuel resentment, hopelessness and disillusionment among Palestinians, are key drivers of human rights violations and significantly heighten Israeli-Palestinian tensions. They entrench the military occupation of Israel and undermine the prospect of achieving a viable two-State solution by systematically eroding the possibility of establishing a contiguous, independent and sovereign Palestinian State. I urge the Government of Israel to stop the advancement of all settlement plans immediately.’).

349 The White House, Joint Statement of the United States, the State of Israel, and the United Arab Emirates, 13 August 2020. 350 United Nations, Secretary-General, ‘Statement attributable to the Spokesman for the Secretary-General – on the announcement of an agreement between Israel and the United Arab Emirates’, 13 August 2020 (‘Today’s joint statement by United States President Donald J. Trump, Prime Minister Benjamin Netanyahu of Israel, and His Highness Sheikh Mohamed bin Zayed Al Nahyan, Crown Prince of Abu Dhabi suspends Israeli annexation plans over parts of the occupied West Bank, something the Secretary-General has consistently called for. Annexation would effectively close the door for a renewal of negotiations and destroy the prospect of a viable Palestinian State and the two-State solution. The Secretary-General welcomes this agreement, hoping it will create an opportunity for Israeli and Palestinian leaders to re-engage in meaningful negotiations that will realize a two statesolution in line with relevant UN resolutions, international law and bilateral agreements. Peace in the Middle East is more important than ever as the region confronts the grave threats of COVID-19 and radicalization. The Secretary-General will continue to work with all sides to open further possibilities for dialogue, peace and stability.

Stéphane Dujarric, Spokesman for the Secretary-General.’) (emphasis added). 351 Several articles cite to the statement, originally written in Arabic. The English translations are similar. See Mark Stone, ‘Palestine says it will declare statehood along pre-1967 border if Israel annexes West Bank’ on SkyNews (10 June 2020) (‘“If Israel is going to annex after July 1st, we are going to go from the interim period of the Palestinian Authority into the manifestation of a state on the ground. That is where we will be heading in the next phase. This authority cannot continue to be an authority without any authority,” Mr Shtayyeh said. “What does the manifestation of the state on the ground mean? It means that there will be a founding council, there will be a constitutional declaration, and Palestine will be on the borders of ’67 with Jerusalem as its capital and we will call our international community to recognise this fact.”’). See also ‘PNA will declare State of Palestine if Israel annexes’ on ANSAmed (9 June 2020) (‘From interim institution, the PNA will become a manifestation of the state on the ground with a Council of foundation, a constitutional declaration. Palestine will extend beyond the borders of 1967 with Jerusalem as capital. We will seek international recognition: the world must choose between international law and annexation.’).

See also Linda Gradstein, ‘Palestinian Leadership Threatens to Declare a State’ on VOANews (9 June 2020) (‘“We are waiting and pushing for Israel not to annex. If Israel is going to annex after July 1, we are going to go from the interim period of the Palestinian Authority into a manifestation of a state on the ground. That is where we will be heading in the next phase,” he said. He described what that next phase would look like to create a Palestinian state in the pre-1967 borders, meaning a state in the West Bank and Gaza Strip with East Jerusalem as its capital. “It means there will be a founding council, there will be a constitutional declaration, and Palestine will be on the borders of 67 with Jerusalem as its capital and we will call on the international community to recognize this fact. That is where we are and as it has been said, I think the world and us we have to face the moment of truth,” said Dr. Stayyeh.’).

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couple of days later.352 The Prime Minister warned that the ‘interim institution’ of the Palestine National Authority may transform ‘into the manifestation of a state on the ground’ should Israel’s government follow through with its annexation plan. Seemingly, a number of recent official statements by Palestinian leaders, namely Mr. President Abbas 353 and Mr. Prime Kifah Zboun, Press Article, ‘PA Ready to Discuss Maps after Ruling out Annexation’ on Asharq Al-Awsat (21 June 2020) (‘Nabil Abu Rudeineh, spokesman for President Mahmoud Abbas, has stated that the Palestinian Authority is willing to discuss maps when a unilateral Israeli annexation of parts of the occupied West Bank is ruled out.

Speaking after a meeting for the Fatah Central Committee held in Ramallah and chaired by Abbas, Rudeineh stated: “We refuse to talk about the maps except on the negotiating table, if the basic conditions are met; negotiations on the basis of Palestinian and international legitimacy and the decisions of the National and Central Councils of the Palestine Liberation Organization (PLO), which will lead to the establishment of a Palestinian state on the 1967 borders, and not on the basis of (US President Donald) Trump’s plan and Israeli annexation plans.” “The United States and Israel should fully understand that the message of the Palestinian people is clear: We will not accept annexation of even one centimeter (of Palestinian land). There will either be a Palestinian state on the borders of June 4, 1967 with East Jerusalem as its capital or there will be no security, no peace, and no stability in the region,” he said.’). 353 President M. Abbas, Statement given at the 75th Session of the UN General Assembly, 25 September 2020 (‘We have rejected [the US “Deal of the Century”], as did the international community, as it contravenes international law and UN resolutions, which recognized, inter alia, the existence of the State of Palestine in 2012 as part of the international order.

[…] Israel […] violated all agreements signed with us, undermined the twoState solution through its oppressive practices […]. The Palestine Liberation Organization has not given a mandate to anyone to speak or negotiate on behalf of the Palestinian people and the only path to lasting, comprehensive and just peace in our region requires ending the occupation and securing the independence of the State of Palestine on the 1967 borders with East Jerusalem as its capital. In this regard, I call on the Secretary-General of the United Nations to undertake, in cooperation with the Quartet and the Security Council, preparations to convene an international conference with full authority and with the participation of all concerned parties, early next year, to engage in a genuine peace process, based on international law, UN resolutions and the relevant terms of reference, leading to an end the occupation and the achievement by the Palestinian people of their freedom and independence within their State, with East Jerusalem as its capital, on the 1967 borders, and resolving all final status issues, notably the question of the refugees, based on resolution 194. […] We will continue building the institutions of our State and consolidating them on the basis of the rule of law.’) (emphasis added).

See also United States Embassy in China, ‘Remarks by President Trump and President Abbas of the Palestinian Authority in Joint Statements’, 23 May 2017 (President Mr. Abbas stated: ‘Our fundamental problem is with the occupation and settlements, and failure of Israel to recognize the state of Palestine in the same way we recognize it, which undermines the realization of the two-state solution. The problem is not between us and Judaism. It’s between us and occupation. […] Achievement of peace, Your Excellency, the President, will give us broad horizons and prospects to recover our economy and continue building our national institutions based on rule of law and in the spirit of tolerance and coexistence, and a culture of peace, nonviolence, no incitement, and building bridges instead of walls inside our lands.’) (emphasis added). See also Statement by H.E. Mr. Mahmoud Abbas, President of the State of Palestine, Delivered before the United Nations General Assembly 74th Session on 26 September 2019 (‘Your august Assembly granted the State of Palestine observer State status in the United Nations in 2012.

We are grateful for this legal and moral stance, and we thank you for your principled position in support of our collective, just demands to end the Israeli occupation of the land of the State of Palestine and to actualize its full and complete independence on the 4 June 1967 borders, along with a just and lasting solution to the question of the Palestine refugees, whose plight has been tragically prolonged, in conformity with the relevant UN resolutions and the Arab Peace Initiative, which affirmed the two-State solution: the State of Palestine and the State of Israel. […] Then, it somehow speaks of the so-called “Deal of the century”, and peddles deceptive and illusive economic “solutions”, after it destroyed by its policies and measures all possibilities to achieve peace. […] This United States policy has emboldened the government of the Israeli occupation to renege all signed agreements with us and its commitments towards peace, depriving the peace process of any credibility, pushing large segments of the Palestinian people to lose hope in the possibility of long-awaited peace, and jeopardizing the two-State solution. This has led many to seriously question: if the two-State solution has become impossible because of Israel’s policies, then why don’t we pursue a one-state solution where all citizens can be fairly treated and are equal in 352

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rights and duties? Here, I must ask you: How can I answer these questions raised by the people? How can one fulfill reciprocal commitments that the other side is not abiding by? And despite all of this, I remain committed to the two-State solution.’) (emphasis added). See also Statement by H.E. President Mahmoud Abbas, President of the State of Palestine, Delivered before the United Nations Security Council on The Situation in the Middle East, including the Palestine Question on 11 February 2020, 11 February 2020 (‘This broad rejection of the deal stems from the unilateral positions contained in it, and the fact it clearly violates international law, United Nations resolutions and the Arab Peace Initiative; ignores the legitimate aspirations of the Palestinian people and their right to self-determination, freedom, independence in their own State; and attempts to grant legitimacy to illegal measures such as the settlements and expropriation and annexation of Palestinian land. […] This plan destroys the basis on which the peace process was launched. It disregards the signed agreements based on the vision of two States on 1967 borders. It will not bring security or peace to our region. We therefore cannot accept it and will confront its implementation on the ground.

[…] And we continue building the national institutions of our State based on the rule of law and the international standards for a modern, democratic State, as well as on transparency and accountability, including fighting against corruption. […] The plan presented by President Trump does that and denies the legitimate national rights of the Palestinian people, and removes East Jerusalem from under Palestinian sovereignty, and will not lead to the implementation of the vision of two independent sovereign States, Israel and Palestine.’) (emphasis added). See also Annex A to The State of Palestine’s response to the Pre-Trial Chamber’s Order requesting additional information, 4 June 2020, ICC-01/18-135-AnxA, Statement delivered by President Mahmoud Abbas, 19 May 2020 (‘Given our unshakeable faith in, and our firm commitment to, the right of our people to pursue their national struggle to end occupation and achieve their independent, contiguous and sovereign State of Palestine on the 4 June 1967 borders, with East Jerusalem as its capital, and a solution to the question of refugees in accordance with the Arab Peace Initiative and relevant UN resolutions, and the release of the Palestinian prisoners from Israeli detention centers and jails; Given also our commitment to achieve just and comprehensive peace in fulfilment of the two-State solution, based on the Arab Peace Initiative

and UN resolutions, notably Security Council resolution 1515, which endorses the Arab Peace Initiative, and resolution 2334 that pertains to Jerusalem and settlements, and General Assembly resolution 194 regarding Palestine refugees, as well as General Assembly resolution 67/19 on the status of the State of Palestine in the United Nations; Abiding by the decisions of the National Council and Central Council of the Palestine Liberation Organization, the sole and legitimate representative of the Palestinian people, the Palestinian leadership has today decided the following’) (emphasis added). See further Wafa, Press Article, ‘At the leadership meeting, President Abbas says Palestinian issue is not only about annexation’ (18 August 2020) (‘Speaking at a leadership meeting held in Ramallah and called for to discuss the recent agreement between the United Arab Emirates (UAE), Israel and the United States to normalize relations between the former two, President Abbas said […] “This is what the agreement is about, and this is the purpose of this particular issue.

But then they added the term annexation and attempted to give the others and the world the illusion that the UAE had come up with a great achievement for us and that is the rejection of annexation, as if the Palestinian issue is only about annexation while they disregard everything else: the rights of the Palestinian people, the Palestinian state, the two-state vision, holy Jerusalem that was annexed and its annexation was declared. They disregarded all of this and said we came to you with a halt to annexation, so be happy, Palestinians. This is deception, and this is totally unacceptable. We consider it a stab in the back of the Palestinian cause.” […] “Whatever happens,” he added, “we will remain committed to the international legitimacy. Whatever happens, we will remain committed to the signed agreements. Whatever happens, we will remain committed to the decisions of the Arab and Islamic summits. Whatever happens, we will remain committed to fighting terrorism whatever it is.”’) (emphasis added).

See also Wafa, Press Article, President Abbas to British Foreign Secretary: Peace will not be achieved by bypassing the Palestinians (25 August 2020) (‘“We welcome the British Foreign Secretary Dominic Raab in Palestine, and we appreciate the importance of this visit in these complicated circumstances as the Israeli occupation authorities still controls occupied Jerusalem, the capital of the State of Palestine, in contravention of the international legitimacy, and continues with its settlement activities, while not abandoning its plans for annexation. These are practices that will destroy what is left of the peace process,” President Abbas told Raab at his Ramallah headquarters. “There will be no peace, security and stability in our region without ending the Israeli occupation of our land and the Palestinian people gaining their freedom and independence in their sovereign state on the 1967 borders,” he added. […] “We say that it is time for Britain to recognize the state of Palestine, which will help achieve justice, inspire hope and work to establish the two-state solution on the basis of the 1967 borders, so that Palestine and Israel can live in security, peace and as good neighbors,” said the President.’) (emphasis added).

See also Riyad Mansour, Permanent Observer of Palestine to the United Nations, on behalf of President Abbas, Speech given during a virtual meeting held at the United Nations on the 2020 observance of the International Day of Solidarity with the

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Minister Shtayyeh,354 as well as organs355 of the State of Palestine/Palestinian Authority and its important high ranking officials (for example, Chief Negotiator and Secretary General of the Palestine Liberation Organization Executive Committee, the late Saeb Erekat),356 or acting diplomats such as Ambassador Kassissieh,357 have followed a similar approach when speaking Palestinian People, and retranscribed on: Wafa, Press Article, ‘President Abbas at UN meeting: It is time for international community to support independence of Palestine’ (1 December 2020) (‘I seize this opportunity to reiterate my call to the Secretary-General to undertake, in coordination with the Quartet and the Security Council, preparations, early next year, to convene an international conference, with full authority, involving all concerned parties, so as to launch a genuine and meaningful peace process on the basis of international law, UN resolutions and the internationally recognized terms of reference, leading to an end of the occupation and the achievement by the Palestinian people of their freedom and independence in their State, with East Jerusalem as its capital, on the 1967 borders, and resolving all final status issues.’) (emphasis added).

354 State of Palestine, Council of Ministers, ‘The Emergency Cabinet Meeting (58)’, 20 May 2020 (‘The Prime Minister added: “The international position rejecting annexation and the Deal of the Century stands in support of Palestine and building its institutions towards the materialization of the State of Palestine on the ground with Jerusalem as its capital and the right of return for refugees. We call on the world’s countries to recognize Palestine. It's the right time and moment of truth for all who believe in the two-state solution.”’) (emphasis added). 355 State of Palestine, Palestine Liberation Organization, ‘The Threat of Annexation: Israel’s Acquisition of Lands, Belonging to the State of Palestine, by Force’, 16 June 2020 (‘Most recently, and to deter Israel’s annexation plans, the Palestinian leadership has intensified its international contacts, including with members of the Quartet, to prepare for this conference. It has also sent direct messages to many countries: to convene an international peace conference with full powers under international sponsorship, based on international law and internationally agreed-upon terms of reference.

This conference should ensure the realization of the vision of a two-state solution, ending the Israeli occupation, achieving the national independence of the State of Palestine on the 1967 borders with East Jerusalem as its capital, resolving the issue of Palestine refugees per UN Resolution 194, and the release of all prisoners. President Mahmoud Abbas invited the United Nations Secretary-General to work directly on holding this conference.’) (emphasis added). 356 Daoud Kuttab, Press Article, ‘Saeb Erekat says Israelis and Americans were informed of Palestinian decision’ on Arab News (22 May 2020) (‘The PLO official told journalists that the Palestinian leadership’s decision is not an abandonment of the people but a reflection of our desire for a just peace. “We are now in the process of moving from an authority to a state. We will continue to build the institutions of the Palestinian state.”’) (emphasis added). See also S. Erekat, ‘Contextual Background with Analysis: Annexation’ in Looming Annexation: Israel’s Denial of Palestine’s Right to Exist (Palestine Liberation Organization, 2020), p. 10 (‘This does not signify that Palestinians reject international forms of mediation.

On the contrary, we have actively called upon the international community to organize a peace conference based on the internationally agreed parameters for Middle East peace, with the aim of implementing international law and relevant UN resolutions. It is Palestine’s responsibility to do everything possible to stop annexation, dismantle Israel’s colonial-settlement enterprise, and achieve freedom and independence.’) (emphasis added). 357 I. J. Kassissieh, ‘Annexation and Threat to the Two State Solution’ in Looming Annexation: Israel’s Denial of Palestine’s Right to Exist (Palestine Liberation Organization, 2020), https://www.nad.ps/sites/default/files/06302020.pdf, pp. 81-85 (‘Non-Compliance by Israel to the Agreements. Non-compliance was not simply a different interpretation by the two parties on the illegality of settlements but a failure to comply with the signed agreements, leading gradually to dwindling hopes of instating the two-state solution. […] Today, more than 25 years after mutual recognition between the PLO and the State of Israel, the latter has consolidated its grip through the Civil Administration on all spheres of life, adversely affecting the PNA’s image and functions. This has resulted in a loss of hope in the minds and hearts of the Palestinian people of achieving an independent Palestinian state.