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Judge Péter Kovács' Partly Dissenting Opinion Public

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Judge Péter Kovács' Partly Dissenting Opinion Public ICC-01/18-143-Anx1 05-02-2021 1/163 EC PT Judge Péter Kovács’ Partly Dissenting Opinion Public Table of Contents Introduction ...................................................................................................................... 3 Methodology and reasoning ............................................................................................. 3 A) What is the legal value of the United Nations resolutions? ................................... 4 B) Interlocking presumptions? ..................................................................................... 7 C) Competence for an in merito assessment of the notion of ‘the territory of the State’ in the situation sub judice ....................................................................................... 11 D) The Majority Decision and the rules of interpretation of the Vienna Convention 19 E) Did the Majority provide a practical answer to the Prosecutor? ....................... 32 The legitimacy and importance of relying on international law when assessing the impact of international legal documents on the situation sub judice................................. 35 The issue of the Montevideo criteria ............................................................................. 42 A) The Montevideo Convention and customary law ................................................. 42 B) The ‘permanent population’ criterion................................................................... 45 C) The ‘defined territory’ criterion ............................................................................ 46 D) The ‘government’ criterion .................................................................................... 47 E) The ‘capacity to enter into relations with the other states’ criterion ................. 51 F) Interpretation of statehood in the jurisprudence and practice of interstate institutions ........................................................................................................................... 57 G) Conclusions on the importance of the Montevideo criteria................................. 66 The issue of Resolution 67/19 of the General Assembly .............................................. 68 A) Outsourcing or fait accompli in the relationship between the Court and the General Assembly of the United Nations? ....................................................................... 68 B) ‘Precedents’ in United Nations and specialized agencies’ practice of participation by ‘pre-sovereign’ States and special subjects of laws ............................ 70 C) Resolution 67/19 and the States’ explanation of votes at the time of adoption . 76 D) Resolution 67/19 and its balanced wording on ‘territory’ and ‘borders’ .......... 80 N° ICC-01/18 1/154 5 February 2021 ICC-01/18-143-Anx1 05-02-2021 2/163 EC PT E) The actual - well balanced - content of Resolution 67/19..................................... 81 F) Impact of Resolution 67/19 on the Secretary-General as depositary of the accession instrument .......................................................................................................... 84 G) The actual content of Resolution 67/19 in light of subsequently adopted UN Security Council and General Assembly resolutions ...................................................... 87 Palestine in the ICC since 2015 ................................................................................... 105 Why challenging the legality of the ‘occupation’ has no impact on how this issue will be politically resolved in the future (as shown by historical examples) ................... 107 The importance of the Oslo Accords ................................................................... 113 A) The Oslo Accords in the Request ......................................................................... 113 B) The importance of also relying on article 21(1)(b) of the Statute ..................... 114 C) The Oslo Accords and the reasons for their perception as agreements of an international legal nature ................................................................................................ 115 1. The texts and their wording ................................................................................. 115 2. The perception of the nature of Oslo I and Oslo II in the practice of the United Nations and of important actors dealing with the issue (the US, the Quartet) ....... 119 3. Jurisprudential practice ....................................................................................... 121 a) The Oslo Accords and jurisprudential practice in Israel .............................. 121 b) The Oslo Accords and jurisprudential practice of the Palestinian Authority 122 4. Some doctrinal interpretations of the international legal nature of the Oslo Accords .......................................................................................................................... 123 5. The question of President Mahmoud Abbas’ statement of 19 May 2020 ........ 123 D) The relevance of the Oslo Accords in answering the main question of the Request .............................................................................................................................. 129 E) Similarity between repartition of competences in the regime established by the Oslo Accords and in some special regimes established for the protection and self- administration of minorities, ethnic groups and/or co-existing peoples ..................... 134 F) Are there any reasons for not taking into account the Oslo Accords? ................ 136 My answer to the main question raised in the Request: the geographical scope of the Prosecutor’s investigative competence ........................................................................ 149 Annex I - Recent statements of leading Palestinian personalities on the ‘State of Palestine’ as an ‘aim to achieve’ and not as an existing, sovereign and independent State Annex II – Overview of how the question of Palestine’s statehood and territory is dealt with in several UN documents N° ICC-01/18 2/154 5 February 2021 ICC-01/18-143-Anx1 05-02-2021 3/163 EC PT Introduction 1. I share the Majority’s finding that Pre-Trial Chamber I (the ‘Chamber’) is competent to answer the question raised in the Prosecutor’s request1 (the ‘Request’). Together with Judge Alapini Gansou, I share the view that the Chamber’s competence is grounded in article 19(3) of the Statute, as the Prosecutor rightly submitted. As it is evident in his partly separate opinion, Judge Brichambaut does not entirely share this view even if he agrees on the applicability of article 19(3) of the Statute. 2. Regarding the merits, I do not agree on the conclusion reached by the Majority regarding the First Issue (‘whether Palestine can be considered “[t]he State on the territory of which the conduct in question occurred” within the meaning of article 12(2)(a) of the Statute’2). I note that the way the Majority Decision frames the First Issue is different from the way it was originally formulated in the Request.3 In any case, I agree neither with the conclusion, nor with the Majority’s reasoning and analysis in reaching such a conclusion. Regarding the Second Issue (the geographical scope of the Court’s jurisdiction), again, I agree neither with the Majority’s conclusion nor with its reasoning. Therefore, I hereby append a dissenting opinion to the Majority Decision, in which I develop my position on the merits of the questions at hand and the analysis which in my view should have been followed. Methodology and reasoning 3. I find neither the Majority’s approach nor its reasoning appropriate in answering the question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law. 4. Abstraction is rightly made in the Majority Decision of the political sensitivity of the issue (which is certainly not up to the Chamber to evaluate) and of the complexity of the Palestinian-Israeli situation. However, in my opinion, the deep involvement of the United Nations Organization (the ‘United Nations’, ‘UNO’ or ‘UN’) in finding a proper solution for the realization of the so-called ‘two-state vision’, the contribution of the Quartet with the Road 1 Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020, ICC-01/18-12, together with Public Annex A, ICC-01/18-12-AnxA. 2 Majority Decision, para. 87. 3 Request, para. 41 (‘The Prosecution thus considers Palestine, an ICC State Party within the meaning of articles 125 and 12(1), to be a “State” for the purposes of article 12(2).’). N° ICC-01/18 3/154 5 February 2021 ICC-01/18-143-Anx1 05-02-2021 4/163 EC PT Map and the previous peace initiatives generally supported and promoted by the United Nations and reflected in the long line of resolutions adopted by the UN General Assembly (the ‘General Assembly’), the UN Security Council (the ‘Security Council’) as well as other UN bodies, and the references in these resolutions to the Oslo I Accords 4 (‘Oslo I’ or ‘Declaration of Principles’) and Oslo II Accords 5 (‘Oslo II’ or ‘Interim Agreement’), together form an important network of international law instruments. These instruments must not be swept behind the formal observation of the accession instrument of the State of Palestine (‘Palestine’), and its interplay with resolution 67/19 of the General Assembly of the UNO (the ‘General Assembly’)6 (the ‘Resolution 67/19’). 5. We shall first address
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