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

[…] Today, 29 years after former Secretary James Baker’s letter of assurances, Palestinians have not achieved their national aspirations. […] Ironically, Israeli governments have expected Palestinians to implement the signed agreements, including the security arrangements, whilst over the years Israel violated almost all the signed agreements. It did not redeploy its forces as stipulated in the interim agreements. It continued to act unilaterally and against the spirit of peace by building settlements in the heart of the future Palestinian state, thereby turning its back on international law and on the agreements signed with the Palestinians under the auspices of the international community. […] The main focus of the Palestinian leadership

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about the ‘future materialization’ of the State of Palestine. Speaking metaphorically of the former apartheid regime of South Africa and quoting Nelson Mandela, Mr. Riyad Mansour, Permanent Observer of the State of Palestine to the United Nations, compared the current situation in Palestine to the then ‘Bantustans’ in his statement made at the 21 July 2020 meeting of the Security Council.358 Some days later, Mr. Riyad Mansour sent another communication to the Security Council, urging for the preservation of the two-State solution and calling for the final realization of those aspirations. 359 Shortly after, when reacting to the news of the agreement between Israel and the United Arab Emirates dated 13 August 2020, Mr. Mansour used similar language. 360 While it is certainly true that these high-ranking officials use the official name of ‘State of Palestine’, as the citations attest, such reference should be understood nowadays is to generate diplomatic momentum in the hope that the world’s capitals will succeed jointly to halt the impending annexation in a last attempt to rescue the two-state solution before it is too late.’) (emphasis added). 358 Permanent Observer Mission of the State of Palestine to the United Nations, Statement by H.E.

Minister Riyad Mansour, Permanent Observer of the State of Palestine to the United Nations, before the United Nations Security Council, Open Debate on the Situation in the Middle East, including the Palestine Question, 21 July 2020 (‘Who are the rejectionists? Those adhering to UN Security Council resolutions or those violating them? Those accepting the two-State solution on the pre-1967 borders or those destroying it? […] Those calling for international involvement, including through the Quartet and other multilateral efforts, to foster peace and hold the parties accountable, or those who seek endless “talks” with no results? Those who have presented maps and clear positions on all final status issues or those fleeing and violating any commitment? Who are the delusional ones? Those seeking just and lasting peace that ensures the rights, dignity and security of all, or those who believe that Palestinians must accept, after a century of struggle for freedom, to live in Bantustans and surrender to perpetual injustice? Those who pursue an end of occupation to allow for peaceful and normal relations in the region, or those who believe it is possible to achieve acceptance by the region and security while denying the rights of an entire nation and undermining regional peace and security? Those advocating respect for international law and UN resolutions, or those who use religious

extremism, supremacist theories, and unhinged nationalism to justify violating them.’). 359 Permanent Observer Mission of the State of Palestine to the United Nations, ‘Israeli Violations and Escalation of Settlement Activities’, 6 August 2020 (‘There is no other way to compel compliance with international law and the relevant United Nations resolutions, including resolution 2334 (2016), and to salvage the internationallyendorsed two-State solution on the pre-1967 borders from Israel’s systematic attempts to destroy it. […] We implore you to act now to stop colonization and annexation and to salvage the prospects for a just solution, in accordance with the international consensus based on the relevant resolutions, that fulfills the inalienable rights of the Palestinian people, including the Palestine refugees, allowing them to finally realize the freedom, justice and peace they have been for so long unjustly and cruelly denied.’) (emphasis added). 360 Permanent Observer Mission of the State of Palestine to the United Nations, ‘Israeli Colonization and Human Rights Violations in Palestine’, 17 August 2020 (‘What was stressed in the Security Council on 21 July in this regard bears repeating, “Refraining from de jure annexation must of course carry no reward; avoidance of criminality is normative not prize-worthy”.

(Briefing by Daniel Levy) Those who believe otherwise are mistaken and fail to understand that stopping colonization and annexation is not an end in itself. Rather it is a primary condition for bringing an end to this illegal occupation and realizing Palestinian self-determination, independence and sovereignty in their land, two central pillars for a just solution that can ultimately restore the rights of the Palestinian people, including the Palestine refugees, and serve as the cornerstone for true peace and security in our region. […] As repeatedly demanded by the international community, the Israeli occupation must be brought to an end and the Palestinian people must realize their right to self-determination and independence in their State of Palestine, with East Jerusalem as its capital, and all other of their inalienable rights, including to return. This is the key to justice, to an end to the Israeli-Palestinian conflict, and to the peace and security long sought in the Middle East.’) (emphasis added).

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as describing an aim to be achieved and emphasising a legal title, and not as recognizing an actual status of statehood under international law. The importance of the verb ‘to achieve’ and its equivalent terms in the referenced statements should be highlighted and duly taken into account when reading the communication sent by the State of Palestine to this Chamber.361 255. Additionally, it is worth noting that, at the above referenced Security Council meeting of 21 July 2020 , Professor Khalil Shikaki (a Palestinian expert) was also heard and presented a survey according to which more than 75% of Palestinians believed that their independent statehood was only realizable in the future.362 256. Even the Organization of Islamic Cooperation, in its declaration363 adopted on 10 June 2020 and in its letter of July 2020 addressed to the Security Council and to the Quartet,364 while condemning Israel’s policy and expressing solidarity with Palestine, speaks of the State of Palestine only as an aim to be achieved. Of note, this approach is more reserved than the amicus brief submitted by the Organization of Islamic Cooperation to this Chamber.

365 Similarly, Resolution 8522 of the Council of the League of Arab States, adopted on 30 April 2020, speaks The State of Palestine’s observations in relation to the request for a ruling on the Court’s territorial jurisdiction in Palestine, 16 March 2020, ICC-01/18-82, paras 36, 45, 46, 50, 60, 61, 64 (arguing in favour of recognizing the sovereignty of the State of Palestine in its current status). 362 Security Council, Press Release, SC/14258 (‘In May, more than three quarters of Palestinians surveyed did not believe that a Palestinian State would be created in the next five years, he noted. Most are torn between insisting on their national aspiration for decolonization, building a State of their own, and their recognition that it is not feasible anymore because of the grim reality on the ground in which Israeli settlement expansion destroys day by day the chance for peace based on partition.’). 363 Organization of Islamic Cooperation (‘OIC’), ‘OIC Adopts Resolution on Annexation’, 10 June 2020, para.

8 (‘Declares its support for the Palestinian leadership’s decisions of 19 May 2020, while reiterating that peace and security in the Middle East, as a strategic option, cannot be achieved without ending Israel’s illegal, colonial occupation of the State of Palestine, including Al-Quds Al-Sharif and the Arab territories occupied since June 1967; and calls on the international community to make every effort necessary to end this illegal occupation, and to help the Palestinian people achieve their inalienable rights and fulfill their legitimate national aspirations, including exercising their right to self-determination, realizing sovereignty and independence of the State of Palestine, with Al-Quds Al-Sharif as its capital, and reaching a just solution to the question of Palestinian refugees in compliance with the principles of international law, relevant UN resolutions and the Arab Peace Initiative, which was adopted by the Extraordinary Islamic Summit of Mecca (2005).’) (emphasis added).

364 OIC, ‘OIC Secretary General Addresses Letters to Members of the Security Council and the Quartet on Israeli Annexation Plan’, 7 July 2020 (‘The Secretary General also conveyed to the members of the International Quartet the content of the said resolution, which requested holding an emergency meeting to save the chances of peace, pursue work to launch a multilateral internationally-sponsored political process to achieve the two-state solution and realize the sovereignty of the State of Palestine within the 1967 borders, with Al-Quds as its capital, in line with international terms of reference, including the UN resolutions and the Arab Peace Initiative.’) (emphasis added). 365 OIC, Observations of the Organisation of Islamic Cooperation in relation to the proceedings in the Situation in Palestine, 16 March 2020, ICC-01-18-84 (‘OIC amicus brief’), para. 26 (‘Palestine’s sovereignty over its territory cannot be legally contested, especially by Israel, the occupying power as occupation does not deprive the occupied State of sovereignty over its territory, nor does annexation, which is a violation of peremptory norms of international law.’). See also paras 39, 74, 78. 361

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de facto in future terms when referring to the ‘State of Palestine’ (as a ‘prospect’ of the ‘two– State solution’, ‘to salvage’ and ‘to achieve’).366 Therefore, from this point of view, it would appear more nuanced than the amicus brief submitted by the League to this Chamber.367 257. Emphasising these nuances is important because the current position of the League of Arab States and the Organization of Islamic Cooperation is seemingly not the one that was considered ‘noteworthy’ by the Majority after it considered the amici observations submitted by both organizations.368 In fact, the amicus of the Organization of Islamic Cooperation still emphasised the sovereign character of the State of Palestine.369 258. It is worth noting that even some important Arab states have recently issued statements in which they have used the verb ‘to achieve’ (or similar wording) as far as Palestine’s 366

General Assembly, Letter dated 1 May 2020 from the Permanent Representative of Oman to the United Nations addressed to the Secretary-General, 12 May 2020, A/74/835-S/2020/356, Annex: Resolution 8522 adopted at the extraordinary session of the Council of the League of Arab States at the ministerial level held on 30 April 2020 in Cairo via video teleconference, pp. 3-4 (‘Reaffirming the crucial importance of the Palestine question to the entire Arab nation and the Arab identity of occupied East Jerusalem, the capital of the State of Palestine; […] 3.To underscore that the Arab State’s will, by all political, diplomatic, legal and financial means, support any decisions or steps taken by the State of Palestine to confront the Israeli plans to commit the crimes of annexation and colonial settlement expansion; 4.

To affirm that a comprehensive and just peace based on international law, internationally recognized resolutions and the Arab Peace Initiative, and based on a two-State solution embodied by an independent and sovereign State of Palestine, with East Jerusalem as its capital, within the borders of 4 June 1967, living in security and peace, is a strategic Arab choice and a necessity for regional and international peace and security; and to stress the need to launch serious and effective negotiations, within a specific time frame and with international sponsorship, in line with the internationally recognized resolutions and terms of reference, and signed agreements, so as to resolve the conflict and achieve a peace acceptable to the peoples; 5. To call upon the international Quartet to convene an urgent meeting to salvage the prospects for peace and the two-State solution and adopt a position consistent with international resolutions and the terms of reference for the peace process, including the road map and the Arab Peace Initiative, to compel the Israeli occupation Government to abandon its colonial plans, including with regard to annexation and settlement expansion, and end the occupation that began in 1967; […] 7.

To call upon the States of the European Union to apply pressure to the occupation Government to abandon its plans and, as a matter of urgency, to recognize the State of Palestine within the 1967 borders in order to salvage hopes for achieving peace and a two-State solution’) (emphasis added). 367 League of Arab States, Submission of the observations of League of Arab States relative to the Situation in Palestine, 19 March 2020, ICC-01/18-122, para. 13 (‘Palestine’s Statehood has already been long established, and is currently reflected in both Palestine’s international relations, and its accession to the Rome Statute.’). See also paras 19, 22, 31. 368 Majority Decision, para. 101 (‘It is also noteworthy that a significant number of States Parties to the Statute are also States Parties to the League of Arab States and the Organization of Islamic Cooperation, which intervened in support of Palestine’s full participation as a State Party and further argued that for the sole purpose of the determination of the scope of the Court’s territorial jurisdiction, Palestine has legally transferred its criminal jurisdiction to the Court, allowing it to exercise its territorial jurisdiction on the Occupied Palestinian Territory as a whole (i.e. the West bank, including East Jerusalem, and the Gaza strip).’) (emphasis added) (footnotes omitted). 369 See OIC amicus brief, p. 10 (‘Section 2.

‘The State of Palestine is sovereign over its territory.’), para. 40 (‘this special status [of East Jerusalem] does not negate the State of Palestine’s sovereignty over the territory.’), para. 74 (‘a sovereign State, in this case Palestine’), p. 24 (‘Section 4. Palestine conferred criminal jurisdiction to the ICC as a Sovereign State’).

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sovereignty and statehood are concerned (for example, Bahrain, 370 Egypt, 371 Jordan, 372 Lebanon,373 Morocco,374 Oman,375 Saudi Arabia376 and Tunisia377). A recent document jointly Bahrain News Agency, Press Article, ‘HM King receives US Secretary of State’ (26 August 2020) (‘His Majesty King Hamad bin Isa Al Khalifa has affirmed Bahrain’s pride in its deep-rooted historical relations and close partnership with the United States of America that reflect a long history of mutual understanding, cooperation and coordination in a way that enhances their shared interests at all levels. […] The meeting discussed the latest developments in the region and the initiatives and efforts to achieve stability and peace in it as well as regional and international developments. The two sides exchanged views on issues of common interest. In this regard, His Majesty the King stressed the importance of intensifying efforts to end the Palestinian-Israeli conflict according to the two-state solution that achieves a just and comprehensive peace that leads to the establishment of an independent and sovereign Palestinian state with East Jerusalem as its capital, in accordance with the legal international resolutions and the Arab Peace Initiative.’) (emphasis added).

371 Al-Masry Al-Youm, Press Article, ‘Sisi, Kushner discuss Middle East peace process’ on Egypt Independent (9 April 2019) (‘Spokesman for the Egyptian Presidency Bassam Rady said on Tuesday that the meeting dealt with developments regarding the Palestinian cause and the peace process in the Middle East. Kushner stressed the importance in this context that his country attaches to consultation with Egypt as central to the Middle East region with long, accumulated experience in dealing with all concerned parties in this regard. President Sisi affirmed that Egypt will continue to support sincere efforts to ensure a just and lasting solution to the Palestinian cause based on internationally legitimate resolutions and references, the two-state solution and the Arab initiative, preserving the inherent rights of the Palestinian people as this will help shape new reality in the Middle East and achieve the aspirations of its peoples for stability, building, development and coexistence in security and peace.’) (emphasis added).

See also Egypt Independent, Press Article, ‘Sisi, Palestinian President discuss US peace plan in Cairo’ (1 February 2020) (‘Egypt’s Presidential Spokesperson Bassam Rady said that the meeting saw discussions regarding the latest developments of the Palestinian case in light of recent developments and the announcement of the US peace plan, which includes a vision to settle the Palestinian case and the future of its solution. […] Sisi clarified that the Egyptian position towards resolving the Palestinian case is through the establishment of an independent and sovereign state in occupied Palestinian territories, coming in accordance with international legitimacy and its decisions. He stressed that there is no alternative to direct negotiations between the parties to the conflict until a settlement can be agreed upon within a comprehensive framework guaranteeing the sustainability of the settlement, ending the suffering of the Palestinian people by restoring their full legitimate rights, and preserving the rights of all parties to life and security, stability and peace.’) (emphasis added).

See also Ahram Online, Press Article, ‘Sisi says no alternative for direct talks between Israel, Palestine amid US MidEast plan controversy’ (1 February 2020) (‘Palestinian President Mahmoud Abbas is in Cairo to garner support from Arab foreign ministers against Trump’s controversial Middle East plan. […] In a statement on Saturday, Egyptian Presidency Spokesman Bassam Rady said El-Sisi received Palestinian President Mahmoud Abbas in Cairo, where he stressed establishing an independent state of sovereignty on occupied Palestinian lands under international legitimacy and accords. […] El-Sisi stressed the importance of direct negotiations between the Palestinian and Israeli sides towards reaching an agreed settlement under a comprehensive framework that guarantees its sustainability.’) (emphasis added). 372 The Embassy of the Hashemite Kingdom of Jordan, ‘King Receives Egyptian FM’, 19 July 2020 (‘His Majesty King Abdullah, at Al Husseiniya Palace on Sunday, received Egyptian Foreign Minister Sameh Shoukry […] Discussions […] addressed the importance of maintaining coordination and consultation on issues of mutual concern, in line with shared interests and in service of Arab causes. Moreover, the meeting touched on regional developments, foremost of which is the Palestinian cause.

His Majesty reaffirmed Jordan’s steadfast position and the need to achieve a comprehensive and just peace, based on the two-state solution, guaranteeing the establishment of an independent, sovereign, and viable Palestinian state on the 4 June 1967 lines, with East Jerusalem as its capital. The King reiterated that any unilateral Israeli measure to annex lands in the West Bank is unacceptable, as it would undermine the prospects of achieving peace and stability in the region. Efforts to reach political solutions to regional crises were also discussed.’) (emphasis added). 373 L’Orient le Jour, Press Article, ‘Le Liban officiel rejette en bloc le plan américain de paix’ (30 January 2020) (‘Les responsables libanais ont rejeté en bloc hier le plan pour la paix au Proche-Orient présenté la veille par le président américain Donald Trump, le président Michel Aoun appelant au téléphone son homologue palestinien Mahmoud Abbas pour l’assurer de la solidarité du Liban avec le peuple palestinien. Lors de l’entretien téléphonique, le chef de l’État a insisté sur l’importance d’adopter “une position arabe unifiée” face au “deal du 370

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