Annexes

ANNEXES
Annex 1 C. Greenwood, ‘Judicial Integrity and the Advisory Jurisdiction of
the International Court of Justice’
Annex 2 Bill Clinton, My Life (2005) 944-945
Annex 3 Condoleezza Rice, No Higher Honor: A Memoir of My Years in
Washington (2011) 724
Annex 4 ‘Full Transcript: Prince Bandar bin Sultan's interview on Israel-
Palestine Conflict’, Al Arabiya, 5 October 2020
Annex 5 Security Council Resolution 242 (22 November 1967)
Annex 6 Security Council Resolution 338 (22 October 1973)
Annex 7 Declaration of Principles on Interim Self-Government
Arrangements, 13 September 1993
Annex 8 Interim Agreement on the West Bank and the Gaza Strip, 28
September 1995
Annex 9 Letter Dated 7 May 2003 from the Secretary-General addressed to
the President of the Security Council, U.N. Doc. S/2003/529 (30
April 2003) (transmitting a text prepared by the Quartet)
Annex 10 Declaration of Principles on Interim Self-Government
Arrangements, 13 September 1993, Art. V
Annex 11 Interim Agreement on the West Bank and the Gaza Strip, 28
September 1995, Art. XXXI(6)
Annex 12 State of Israel, Office of the Attorney General, ‘The International
Criminal Court's Lack of Jurisdiction over the so-called “Situation
in Palestine”’, 20 December 2019
Annex 13 Joint Communique from the March 19 meeting in Sharm El
Sheikh, 19 March 2023
Annex 14 Aqaba Joint Communique, 26 February 2023
Annex 1
C. Greenwood, ‘Judicial Integrity and the Advisory Jurisdiction of the
International Court of Justice’
© koninklijke brill nv, leiden, 4 | doi .63/9789004278561_05
chapter 4
Judicial Integrity and the Advisory Jurisdiction
of the International Court of Justice
Christopher Greenwood
Introduction
The advisory jurisdiction conferred on the International Court of Justice by
Article 96 of the United Nations Charter and Article 65 of the Statute of the
Court represents a significant part of the overall work of the Court. During
its first 67 years, the Court has given 26 advisory opinions,1 compared to 116
judgments in contentious cases (67 of which were judgments on the merits),
covering a broad range of subjects, which included not only the predictable
issues of United Nations law and international civil service staff cases but also
questions of international humanitarian and human rights law, acquisition of
territory and decolonisation, the law of treaties and declarations of independence.
Many of these broader questions also arose in contentious cases before
the Court.
There are, of course, important differences between the advisory and
contentious jurisdictions. Contentious cases take place between the States
parties to a dispute, whereas the advisory jurisdiction can be invoked only by
the Security Council, the General Assembly or one of the other UN organs or
specialised agencies duly authorised by the General Assembly in accordance
with Article 96, paragraph 2, of the Charter and there are no ‘parties’ in the
sense in which that term is used in the contentious jurisdiction. Moreover,
while Article 59 of the Statute makes the judgment of the Court in a contentious
case binding on the parties to that case, no provision of the Statute or the
Charter imposes an obligation of compliance with an advisory opinion. It is
true that advisory opinions are sometimes binding on the organization which
requests them but in such cases the binding quality results from the provisions
* Judge at the International Court of Justice.
1 It should be noted, however, that the Permanent Court was kept far busier by its advisory
jurisdiction. In the 18 years of its active existence, the Permanent Court delivered 27 advisory
opinions.
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of a legal instrument other than those under which the Court operates;2 so
far as the Court is concerned, advisory opinions are ‘advisory’. Nevertheless,
it is important to recall what Judge Gros said in his declaration in the Western
Sahara case: “when the Court gives an advisory opinion on a question of law
it states the law” and “the absence of binding force does not transform the
judicial operation into a legal consultation, which may be made use of or not
according to choice”.3
That reminder is but one reflection of a principle which the Court
and its predecessor have stressed from the outset, namely that in the exercise
of its advisory jurisdiction it must be careful to maintain its integrity as a judicial
institution. As the Permanent Court put it, “the Court, being a Court of
Justice, cannot, even in giving advisory opinions, depart from the essential
rules guiding [its] activity as a Court”.4 The Court has various means open to
it to ensure that its judicial integrity is not compromised by a request for an
advisory opinion. In the last resort, it can exercise its discretion to decline to
give an opinion if it considers that this course is necessary to protect its judicial
integrity. The existence of that discretion was asserted by the Permanent Court
in the Eastern Carelia case and has been repeated on numerous occasions by
the present Court.5 Although the Court has always insisted that “the exercise
of its advisory jurisdiction represents its participation in the activities of the
2 See, e.g., Article XII, paragraph 2, of the Statute of the International Labour Organization
Administrative Tribunal relating to review of the decisions of the ILOAT, which was
recently considered by the Court in Judgment No. 2867 of the Administrative Tribunal of the
International Labour Organization upon a Complaint filed against the International Fund for
Agricultural Development, Advisory Opinion, ICJ Reports 2012, p. 10 (the “IFAD Opinion”). The
Court there repeated what it had said in Judgments of the Administrative Tribunal of the ILO
upon Complaints made against the UNESCO, Advisory Opinion, ICJ Reports 1956, p. 84, that
“that effect goes beyond the scope attributed by the Charter and the Statute of the Court to
an advisory opinion”. In both the UNESCO and IFAD cases, the Court held that this additional
effect derived from the ILOAT Statute “does not affect the way in which the Court functions;
that continues to be determined by its Statute and Rules” (IFAD Opinion, ICJ Reports 2012,
p. 23, para. 28). Advisory opinions are also treated as binding under a number of treaties;
see, e.g., Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p. 62, applying Article VIII,
Section 30 of the 1946 Convention on the Privileges and Immunities of the United Nations.
3 Western Sahara, Advisory Opinion, Declaration of Judge Gros, ICJ Reports 1975, p. 73, para. 6.
4 Status of Eastern Carelia, Advisory Opinion of 23 July 1923, PCIJ, Series B, No. 5, p. 29. For
application of this principle by the current Court, see IFAD Opinion, ICJ Reports 2012, p. 25,
para. 34.
5 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, p. 156, para. 44.
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Judicial Integrity and the Advisory Jurisdiction of the icj 65
[United Nations] Organization and, in principle, should not be refused”6 and
“compelling reasons” are required if the Court is to refuse a request,7 there is
no doubt that if the Court considered that it could not respond to a request for
an advisory opinion without compromising its judicial character, then it would
exercise its power to refuse.8
That power has, however, never been used by the present Court. It is, therefore,
perhaps of more interest to consider some of the other, less drastic, ways in
which the Court has attempted to ensure that its judicial integrity is preserved
in the exercise of its advisory jurisdiction. To that end, I propose to examine
three matters: the Court’s willingness to depart from the terms of the question
put to it by the requesting body; the difficulties of fact-finding in the advisory
jurisdiction; and the difficulties of ensuring due process in hearing certain
types of advisory request.
The Willingness of the Court to Depart from the Terms
of the Question
The Court has never considered itself bound to adhere to the precise terms
of the question on which it is asked to give an opinion. Thus, it has considered
itself free to reformulate questions which were badly drafted9 and to
simplify questions which were unnecessarily complicated or repetitive.10
More importantly, in the Interpretation of the Agreement of 25 March 1951
6 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase),
Advisory Opinion, ICJ Reports 1950, p. 71.
7 UNESCO Opinion, ICJ Reports 1956, p. 86.
8 The power to refuse to respond to a request is not, however, limited to the preservation
of the judicial integrity of the Court; see the discussion in Accordance with International
Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion,
ICJ Reports 2010, pp. 415–423, paras. 29–48, and the separate opinion of Judge Keith,
pp. 482–490. The present Court has never actually exercised its discretion to refuse to
give an advisory opinion; the decision in Legality of the Use by a State of Nuclear Weapons
in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66 was based on the finding that
the request did not arise within the scope of the activities of the WHO, so that an essential
condition for the jurisdiction of the Court was not satisfied (see p. 84, para. 31).
9 See, e.g., Application for Review of Judgment No. 273 of the United Nations Administrative
Tribunal, Advisory Opinion, ICJ Reports 1982, p. 325.
10 In the IFAD Opinion, the Court was confronted with a set of nine questions, essentially
raising the same point, and decided that it need answer only two; ICJ Reports 2012, p. 48,
para. 96.
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between the WHO and Egypt, the Court stated that “if it is to remain faithful to
the requirements of its judicial character in the exercise of its advisory jurisdiction,
it must ascertain what are the legal questions really in issue in questions
formulated in a request”.11 A similar approach may be seen in the opinion on
Admissibility of Hearings of Petitioners by the Committee on South West Africa
and, even more clearly, in the trenchant comments by Judge Lauterpacht in
his separate opinion, where he remarked that “the General Assembly, although
actually desirous of an answer of the Court bearing upon a specific situation,
cast its request in an apparently general form unrelated to that situation” and
warned that “it is a matter of common experience that a mere affirmation or a
mere denial of a question does not necessarily result in a close approximation
to truth”.12
In this connection, the reformulation by the Court of the question posed by
the General Assembly in Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo is of particular interest. The
General Assembly had asked the following question:
Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international
law?13
Whether the authors of the declaration of independence were in fact the
Provisional Institutions of Self-Government of Kosovo was, however, disputed.
The Court held that this was a matter which the Court had to decide and, after
considering the evidence before it, concluded that
the authors of the declaration of independence of 17 February 2008 did
not act as one of the Provisional Institutions of Self-Government within
the Constitutional Framework, but rather as persons who acted together
in their capacity as representatives of the people of Kosovo outside the
framework of the interim administration.14
11 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, ICJ Reports 1980, p. 88, para. 35.
12 Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory
Opinion, Separate Opinion of Sir Hersch Lauterpacht, ICJ Reports 1956, p. 37.
13 Advisory Opinion, ICJ Reports 2010, p. 407, para. 1.
14 Ibid., pp. 447–448, para. 109.
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Judicial Integrity and the Advisory Jurisdiction of the icj 67
The Court therefore proceeded to give an opinion on the accordance with
international law of the declaration made by those representatives thus, in
effect, reformulating the question put to it so as to remove the reference to the
Provisional Institutions of Self-Government.
That decision has attracted some controversy.15 To the extent that the controversy
concerns whether the Provisional Institutions were in fact the authors
of the declaration, it falls outside the scope of this paper. What is of immediate
concern, however, is whether the Court was entitled to investigate that matter
for itself and, having come to the conclusion that the declaration was not the
work of the Provisional Institutions as such, to depart from the terms of the
question put to it. The Court considered that it was the protection of the judicial
function which required it to examine the identity of the authors of the
declaration for itself, rather than treating that matter as settled by the terms of
the question. The Court observed:
The identity of the authors of the declaration [. . .] is capable of affecting
the answer to the question whether that declaration was in accordance
with international law. It would be incompatible with the proper exercise
of the judicial function for the Court to treat that matter as having been
determined by the General Assembly.16
That is surely right. It is difficult to see how, without compromising its judicial
integrity, the Court could provide an answer to a question regarding the legality
of an action while considering that the terms of that question precluded
it from inquiring into an issue which had a bearing on whether or not that
action was lawful. Having conducted its own inquiry and concluded that the
Provisional Institutions were not the authors of the declaration, the Court
could not then have answered the question as originally formulated. In those
circumstances, the only response it could have given to the question as originally
formulated would have been that there had been no such declaration,
an answer which would have been wholly unhelpful to the General Assembly.
15 See the dissenting opinions and Mohamed Bennouna, “The Advisory Function of the
International Court of Justice in the Light of Recent Developments,” in The Global
Community: Yearbook of International Law and Jurisprudence, ed. M. Cherif Bassiouni
et al. (New York: Oceana, 2013), 98.
16 Advisory Opinion, ICJ Reports 2010, p. 424, para. 52.
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The Difficulties of Fact-finding in the Advisory Jurisdiction
Since requests for advisory opinions are frequently (as Judge Lauterpacht
emphasised in the opinion quoted above) bound up with specific situations, it
will be necessary for the Court to have a clear picture of that specific situation
if it is to give an answer which is helpful to the requesting body and is compatible
with the Court’s judicial function. That can present problems if the facts
are not easy to establish.
In many cases, no real problem arises because the Court finds that the body
requesting an advisory opinion has supplied all the elements necessary for
the Court to give a reply to the question. Moreover, Article 66, paragraph 2,
of the Statute provides for all States entitled to appear before the Court and
any international organization considered by the Court “as likely to be able
to furnish information on the question” to be notified of the request and to
be afforded the opportunity to make written and, if oral proceedings are held,
oral submissions to the Court.17 The Court has interpreted this provision as
giving it a broad power to seek information from those who might be in a
position to provide it. Thus, in the Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, the Court decided that Palestine
could submit observations and in Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo, it considered that
the authors of the declaration of independence were likely to be able to furnish
information on the question and invited them to make written and oral
submissions. While the Court will, therefore, usually have a substantial dossier
of information available to it, resolving disputed points of fact may still prove
problematic.
Determining the facts relevant to a particular case can, of course, present
serious problems in contentious cases but the difficulties which arise in the
contentious jurisdiction are greatly reduced by the effect of the burden of
proof. As the Court has repeatedly held, “it is the duty of the party which asserts
certain facts to establish the existence of such facts”,18 and if that party fails
to establish the existence of those facts, the Court can give judgment on the
basis that the relevant allegation has not been proved. In advisory proceedings,
17 While no State or organization is obliged to respond to this invitation, in several
cases many have done so. Thus, in Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo, a total of forty-two States and the
authors of the declaration took part.
18 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 71,
para. 162.
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however, subject to one qualification which will be considered in the next section,
there are no parties and thus no burden of proof as such.
The result is that if the Court considers that it does not have sufficient information
before it to enable it to resolve a particular issue of fact, it cannot fall
back upon considerations of burden of proof and may, therefore, be unable to
answer the question in whole or in part if it is to remain faithful to its judicial
function. While the Court has never held that it lacked sufficient information
to give an opinion, in Legality of the Threat or Use of Nuclear Weapons, it considered
that it lacked sufficient information to return a full answer. Thus, in the
critical paragraph 2(E) of its conclusions in that case, the Court stated:
It follows from the above-mentioned requirements that the threat or use
of nuclear weapons would generally be contrary to the rules of international
law applicable in armed conflict, and in particular the principles
and rules of humanitarian law;
However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or unlawful
in an extreme circumstance of self-defence, in which the very survival
of a State would be at stake.19
On any analysis, this paragraph is less than satisfactory. It was adopted
by seven votes to seven on the casting vote of President Bedjaoui, with the
dissenting votes including those of judges who criticised the Court for pronouncing
what was in effect a non liquet and contended that the Court should
have ruled that there were—or at least might be—circumstances in which a
nuclear weapon might lawfully be used, as well as judges who criticised the
Court for leaving any possibility that nuclear weapons could ever lawfully be
employed. Moreover, the idea that “an extreme circumstance of self-defence”
might legitimise what would otherwise be a violation of international humanitarian
law (if that was indeed what the paragraph implies, which is not entirely
clear) suggests that jus ad bellum may prevail over jus in bello, something which
was not advocated by any State participating in the proceedings and is contrary
to decades of doctrine and jurisprudence.20 The second part of operative
paragraph 2(E) also has the uneasy appearance of having been bolted onto
19 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996,
p. 266, para. 105, subpara. 2(E) (emphasis added).
20 See Christopher Greenwood, “Jus ad bellum and jus in bello in the Nuclear Weapons
Advisory Opinion,” in International Law, the International Court of Justice and Nuclear
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the opinion at a late stage. The only basis for it in the reasoning of the Court
is a short section of the opinion, culminating in paragraph 97, which echoes
the language of paragraph 2(E) but with one significant difference. Whereas
paragraph 2(E) speaks of the use of nuclear weapons “in an extreme circumstance
of self-defence, in which the very survival of a State would be at stake”,
paragraph 97 refers to the use of nuclear weapons “by a State in an extreme
circumstance of self-defence, in which its very survival would be at stake”. In a
world with few nuclear powers but many States connected by alliances of one
kind or another to a nuclear-armed State, this is a nuance of language which
has the potential to be of considerable importance. Finally, paragraph 2(E)
blends a complaint about the lack of factual information with a curious reference
to “the current state of international law”, which invites the criticism of
a non liquet.
Nevertheless, for present purposes, the important point is that the Court
did consider that it lacked the factual information necessary for it to give a full
answer to the question put to it. That emerges most clearly from paragraph 94,
in which the Court stated:
The Court would observe that none of the States advocating the legality
of the use of nuclear weapons under certain circumstances, including the
“clean” use of smaller, low yield, tactical nuclear weapons, has indicated
what, supposing such limited use were feasible, would be the precise circumstances
justifying such use; nor whether such limited use would not
tend to escalate into the all-out use of high yield nuclear weapons. This
being so, the Court does not consider that it has a sufficient basis for a
determination on the validity of this view.21
Whether any State (or organization) could have supplied that kind of information
is open to question.
The Difficulties of Ensuring Due Process
A central concern in relation to the preservation of judicial integrity in any
proceedings must be that those proceedings properly respect the principles
of due process and, in particular, of equality of arms, as those principles have
evolved over time. That presents particular problems in relation to one type
Weapons, ed. Philippe Sands and Laurence Boisson de Chazournes (Cambridge:
Cambridge University Press, 1999), 247–267.
21 Advisory Opinion, ICJ Reports 1996, p. 262, para. 94.
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of advisory proceeding, namely that in which an international organization
requests an advisory opinion from the Court regarding the validity of a ruling
by a staff tribunal.22 Five of the 26 advisory opinions given by the International
Court of Justice have concerned this kind of request.23
Formally speaking, the position before the Court is that, as these are advisory
proceedings, there are no parties. However, the subject on which the Court is
asked to rule in this type of case is the validity of a decision given by a tribunal
in proceedings between two parties, namely the staff member initiating those
proceedings and the international organization against whom the complaint
is made. In effect, the Court acts as a review body in relation to the outcome
of proceedings which were contentious. Moreover, its advisory opinion has a
binding effect, so that if it rules that the tribunal’s decision was invalid, the
staff member will lose the benefit of the judgment in his or her favour which
had been given by the administrative tribunal. The reality, therefore, is that the
Court has to consider the rights and interests of both the parties to the original
proceedings. That gives rise to concern in two respects.
First, only one of those parties, the international organization, may invoke
the advisory jurisdiction of the International Court of Justice; the individual
staff member has no right to seek an advisory opinion. In the case of judgments
of the United Nations Administrative Tribunal, the inequality of access to the
Court was ameliorated by the fact that staff members were given access to a
review process which could lead to a request for an opinion from the Court.
Three of the staff cases before the Court concerned judgments of UNAT.
Provision for either party to challenge a judgment of UNAT by means of advisory
proceedings in the Court was, however, brought to an end in 1995. The situation
with judgments of the International Labour Organization Administrative
Tribunal is different. Under Article XII of the ILOAT Statute, there is no comparable
provision giving access for the staff member to a review procedure, with
the result that the international organization which is the respondent before
the ILOAT may challenge the validity24 of a judgment given in favour of a staff
22 Concerns about ensuring due process may, however, arise in other types of advisory
proceedings where the conduct of one State or international organization may be at the
heart of the issue in respect of which an opinion is sought.
23 UNESCO Opinion, ICJ Reports 1956, p. 77; Application for Review of Judgment No. 158 of
the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, p. 166;
Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, ICJ Reports 1982, p. 325; Application for Review of Judgment No. 333 of
the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1987, p. 18; and
IFAD Opinion, ICJ Reports 2012, p. 10.
24 Article XII, para. 1, of the ILOAT Statute provides for a challenge on the basis that the
tribunal exceeded its jurisdiction or committed a fundamental error of procedure.
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member but there is no scope for a staff member to bring about a challenge to
a judgment in favour of the respondent organization. Secondly, the staff member
has no standing before the Court. It is the responsibility of the international
organization to supply the Court with the relevant factual material and
to communicate to the Court any submissions which the staff member may
wish to put before the Court. In both respects, the Court is asked to exercise its
advisory jurisdiction under conditions in which the equality of the parties to
the original proceedings is absent in the proceedings before the Court.
Whether such proceedings are compatible with the judicial function was
first considered by the Court in 1956. The Court, while recognising the concerns
regarding inequality of access, considered that they were not sufficient
to justify it in declining to respond to the request for an advisory opinion. It
stated that the inequality of access was not an inequality before the Court but
something antecedent to the examination of the question by the Court. In
addition, it thought that the inequality was more apparent than real, since the
staff member would have no interest in challenging the judgment of the tribunal
as that judgment was in the staff member’s favour.25 The first consideration
is formalistic to say the least. The second is frankly bizarre. Of course, if the
respondent organization challenges a tribunal judgment it will be because that
judgment was in favour of the staff member and the latter will therefore have
no interest in bringing a challenge against that judgment, but that fact does
not obviate the inequality of access. Staff members commencing proceedings
do so in the knowledge that a judgment in their favour may be challenged but
that they cannot challenge a judgment against them.
This matter has recently been reconsidered by the Court in its advisory
opinion in Judgment No. 2867 of the Administrative Tribunal of the International
Labour Organization upon a Complaint filed against the International Fund for
Agricultural Development. The Court there drew attention to the fact that concepts
of due process and equality of arms had undergone considerable development
in the years since the 1956 opinion. It referred, inter alia, to the General
Comments of the United Nations Human Rights Committee on Article 14 of
the International Covenant on Civil and Political Rights, which guarantees
equality before courts and tribunals, a principle which the Court, in its 1956
opinion, described as following from “the requirements of good administration
of justice”.26 The Court concluded that:
25 UNESCO Opinion, ICJ Reports 1956, p. 85.
26 Ibid., p. 86.
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That principle must now be understood as including access on an equal
basis to available appellate or similar remedies unless an exception can
be justified on objective and reasonable grounds [. . .]. [. . .] questions may
now properly be asked whether the system established in 1946 meets the
present-day principle of equality of access to courts and tribunals.27
The Court also considered that it had a duty to ensure as far as possible equality
in the proceedings before it. To that end it had required IFAD to transmit statements
from the staff member (Ms Saez Garcia) and declined IFAD’s request
for oral proceedings in which Ms Saez Garcia would not have been entitled
to take a direct part. The Court noted that “the process was not without its
difficulties”.28 IFAD had required several requests before it had supplied all the
information requested by the Court, had failed to inform Ms Saez Garcia in a
timely way of certain procedural requests which it made to the Court and had
initially failed to transmit to the Court certain communications from Ms Saez
Garcia. In the end the Court concluded that the proceedings had been fair but
only as a result of its own insistence.29
The formal position cannot be allowed to mask the reality of this type of
advisory proceeding. That reality is that there are two parties and that the
Court is asked to give an opinion which will act as a final decision on the rights
and obligations of those two parties towards one another. Recognition of that
fact has at least two implications. First, it is incompatible with the integrity
of the Court as a judicial body for it to proceed in a case of this kind without
ensuring the equality of arms between those two parties. Secondly, this type
of case is one in which the burden of proof may be applied in the event of a
factual dispute, although care is needed if it is to be applied to the detriment of
the staff member, given that the staff member lacks direct access to the Court.
There is, however, a more important concern, namely whether such proceedings
should be brought at all. In IFAD, the Court took the view that since
it had ensured equality of arms in the proceedings themselves, it would be
wrong to refuse to respond to the question and thus withdraw without warning
from a system which had been in place for several decades. The warning for the
future is nonetheless clear. It is to be hoped that it is heeded and that the IFAD
case is the last of its kind.
27 IFAD Opinion, ICJ Reports 2012, p. 29, para. 44.
28 Ibid., p. 30, para. 46.
29 See also Judgment No. 3152 of the ILOAT given on 6 February 2013, which is sharply
critical of the approach of IFAD.
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Annex 2
Bill Clinton, My Life (2005) 944-945

Annex 3
Condoleezza Rice, No Higher Honor: A Memoir of My Years in
Washington (2011) 724

Annex 4
‘Full Transcript: Prince Bandar bin Sultan's interview on Israel-Palestine
Conflict’, Al Arabiya, 5 October 2020
Language
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Exclusive interview - Part 1 | Prince Bandar bin Sultan on Israel, Palestine and Washington
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Full transcript:
Prince Bandar bin
Sultan’s interview
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Al Arabiya English Published: 05 October ,2020: 07:26 PM GST
Updated: 07 October ,2020: 09:55 PM GST
In the first part of a three-part series exclusive interview with Al
Arabiya, Prince Bandar bin Sultan discusses the Kingdom's position
on the Palestinian cause, calling out the Palestinian leadership for its
historical and ongoing “failures,” including its criticism of Gulf
states following the UAE-Israel peace deal.
Prince Bandar is Saudi Arabia’s former ambassador to the US and
served as director general of the Saudi Intelligence Agency from
2012 to 2014 and the head of the National Security Council from
2005 to 2015.
Latest: Part two of the interview was aired at 6 p.m. GMT on
Tuesday. In it, Prince Bandar bin Sultan discussed how Palestinian
leader Yasser Arafat had frustrated efforts to find a peace deal,
despite offers from two US presidents.
Full transcript of Prince Bandar bin
Sultan's tell-all interview below:
Prince Bandar bin Sultan: After writing down everything we have
discussed yesterday and then reading it, I said to myself, it might be
best to improvise and speak frankly.
The reason why I decided to speak tonight was that in recent days, I
have heard shocking statements quoted from the Palestinian
leadership. At first, I refused to believe what I heard, then a day or
two later I saw it with my own eyes on TV.
Palestinian news anchor: The Palestinian leadership announces its
strong rejection and condemnation of the surprising American-
Israeli-Emirati trilateral declaration.
Palestinian President Mahmoud Abbas: They have turned their
backs on everything: the rights of the Palestinian people, the
Palestinian state, the two-state solution, and the holy city of
Jerusalem which was already annexed and it was already declared.
They deny all this and say “we come to you with a stop to
annexations, be happy Palestinians.”
Palestinian official Saeb Erekat: A poisoned stab in the back of the
Palestinian people and an attempt to try and get around international
legitimacy.
Prince Bandar bin Sultan: What I heard from Palestinian
leadership in recent days was truly painful to hear. This low level of
discourse is not what we expect from officials who seek to gain
global support for their cause. Their transgression against the Gulf
states' leadership with this reprehensible discourse is entirely
unacceptable.
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However, if we want to look at it from a different perspective, it is
not surprising to see how quick these leaders are to use terms like
“treason,” “betrayal,” and “back stabbing,” because these are their
ways in dealing with each other. Gaza Strip leaders [Hamas], who
have seceded from the PA [Palestinian Authority] to govern Gaza
independently, accuse the West Bank leadership of treason, while at
the same time, West Bank leadership accuses separatist Gaza Strip
leaders of stabbing them in the back.
Efforts in the past years would have been better focused on the
Palestinian cause, peace initiatives, and protecting the rights of the
Palestinian people to reach a point where this just, albeit robbed,
cause can finally see the light, and when I say robbed, I mean both
by Israel and Palestinian leaders equally.
My first reaction was anger. However, after giving it some thought,
my anger turned into sadness and hurt. I recalled events I was
witness to related to the Palestinian cause from 1978 to 2015. I
would like to give a short overview of the positions of the Saudi
leadership and the Saudi State towards Palestine in the period from
1939 to 1978.
These events I want to talk about today.
And frankly my words today are directed at my brothers and sisters,
Saudi Arabian citizens, because they are my priority and they are the
priority for their country and our guardian King Salman, God bless
him, and his Crown Prince, Prince Mohammed [bin Salman].
But these are the customs of the Saudi leadership from the time of
the founder, King Abdulaziz, and the kings who followed him up
until the current King Salman.
But I would like to give a brief overview of the positions of the
Saudi leadership, of the Saudi state, toward Palestine during the
period between 1939 to 1978.
It is the right of the Palestinian people, and the right of the Arab
people, for Israel to withdraw from the Arab lands it occupied in the
year 1967, and for the Palestinian people to return to their homeland
They highlight that peace is the basis, but [it should not be] at the
expense of the rights of the Palestinian people.
A single drop of Palestinian blood is more precious than the earth’s
treasures and all that they contain.
We reaffirmed our firm position towards the restoration of all
legitimate rights of the Palestinian people.
I was not a direct witness to that period or involved in it by virtue of
my work. However, this brief covering the period from 1939 to 1978
is all documented and well known. The knowledge I have about that
period is from documents that I had access to after I entered the
diplomatic and political service to serve my country. I have also
heard it from people who lived through that period, such as the late
King Fahd, King Abdullah, Prince Sultan and Prince Naif, may God
have mercy on them all, and other Saudi officials. I also heard it
directly from the Custodian of the Two Holy Mosques, King Salman,
who has close ties with all Palestinian officials, because we are all
concerned with the Palestinian cause, which we consider both a
national and a just cause.
However, allow me to start by saying some things that can give
context to my words and why I am saying them.
The Palestinian cause is a just cause, but its advocates are failures
and the Israeli cause is unjust, but its advocates have proven to be
successful. That sums up the events of the last 70 or 75 years. There
is also something that successive Palestinian leadership historically
share in common; they always bet on the losing side, and that comes
at a price.
Amin al-Husseini in the 1930s was betting on the Nazis in Germany,
and we all know what happened to Hitler and Germany. He was
recognized by Germany, Hitler, and the Nazis for standing with them
against the Allies when Berlin’s radio station broadcast recordings
by him in Arabic, but that was all he got, which was no good as far
as the Palestinian cause was concerned.
Moving forward in time, no one, especially us in the Gulf states, can
forget the image of Abu Ammar [Yasser Arafat] as he visited
Saddam Hussein in 1990 after the occupation of Kuwait. An Arab
people occupied and Kuwait, alongside the other Gulf states, had
always welcomed the Palestinians with open arms and was home to
Palestinian leaders. Yet we saw Abu Ammar in Baghdad, embracing
Saddam, and laughing and joking with him as he congratulated him
for what had happened. This has had a painful impact on all the
peoples of the Gulf, especially on our Kuwaiti brothers and sisters,
specifically the Kuwaitis who stayed in Kuwait and resisted the
occupation.
Months later, as another example of failure in choosing sides, the
battle for the liberation of Kuwait begins and Saddam Hussein
strikes the capital of Saudi Arabia with missiles. That was the first
time anybody launched missiles at the capital of Saudi Arabia. Even
Israel did not launch missiles at the Kingdom. We were the ones, by
the way, who bought these missiles for Saddam to support him in his
war against the Persians.
Another shock followed when we saw deluded youths in Nablus
dancing joyfully in celebration of the missile attack on Riyadh,
holding pictures of Saddam Hussein. These incidents cannot be
forgotten, but we rose above them, not for the sake of the Palestinian
leaders, but for the Palestinian people.
From 2011 to date, our dear neighbor, Egypt, and the Egyptian
leaders, from the time of Hosni Mubarak, may God rest his soul, to
His Excellency President Sisi, have held conference after conference
to reconcile the West Bank and Gaza, and the Palestinian authority
and Hamas. How can this be? How can we speak in the name of all
Palestine, and convince others to support our cause, when we
ourselves are not united, and when the Palestinians are divided
amongst themselves? However, history repeats itself and the facts
are hard to ignore. This is not the first time they have disagreed,
stabbed each other in the back, and accused each other of being
traitors.
King Abdullah, may he rest in peace, while Prince Sultan was Crown
Prince, brought Abu Mazen and his followers, and Khaled Mashal
and his Hamas followers, to Mecca in order to reconcile them and
form a unified Palestinian leadership to achieve positive results.
They stayed at the official residence for guests in Mecca. Picture
this: The Saudi delegation, headed by the late Prince Saud bin Faisal,
and its members: Prince Muqrin, the late Ghazi Al Gosaibi, Mr.
Ibrahim Al-Assaf and myself. We were going back and forth, visiting
Abu Mazen and his group on the one hand and the Hamas delegation
on the other. But our visits were not like [US former Secretary of
State Henry] Kissinger’s between Damascus and Tel Aviv or Cairo
and Tel Aviv, we were going up and down between the hotel’s
twelfth and fourteenth floors. It took a day and a half until we were
able to reach an agreement that satisfied both parties.
Then, they went to meet King Abdullah. After he checked what they
had written and read it in front of everyone and asked them to vow
before God and in front of everyone that they agree to this deal, he
asked them to shake hands and congratulated them, saying, “God is
our witness, and we are in his holy land. Saud, take the brothers to
the Kaaba and let them pledge their word before God and before the
Palestinian people.”
Only a few days after they left Saudi Arabia, we received news they
had already gone back on their word and started conspiring and
plotting against each other once again.
I believe that we in Saudi Arabia, acting on our good will, have
always been there for them. Whenever they asked for advice and
help, we would provide them with both without expecting anything
in return, but they would take the help and ignore the advice. Then
they would fail and turn back to us again, and we would support
them again, regardless of their mistakes and of the fact that they
knew they should have taken our advice. We even went further as a
state and justified to the whole world the actions of the Palestinians,
while we knew that they, indeed, were not justified, but we did not
wish to stand with anyone against them, nor did we wish to see the
consequences of their actions reflected on the Palestinian people.
This has always been the policy of the Saudi leadership. I think this
has created a sense of indifference on their side, and they have
become convinced that there is no price to pay for any mistakes they
commit towards the Saudi leadership or the Saudi state, or the Gulf
leaderships and states.
I think the circumstances and times have changed, and I think it is
only fair to the Palestinian people to know some truths that have not
been discussed or have been kept hidden.
Who are the allies of the Palestinians now? Is it Iran, which is using
the Palestinian cause as a pretext at the expense of the Palestinian
people? Is it Iran and Khomeini, who want to liberate Jerusalem
through Yemen, Lebanon, and Syria? The path to Jerusalem is
known, that is if they truly wish to take it. Or is it Turkey, which
Hamas leaders have thanked for its stance in support of Hamas and
the Palestinian cause? That is simply because Erdogan announced
that he was withdrawing his ambassador from the UAE in support of
the Palestinian cause. Can anyone explain to me why Hamas leaders,
instead of asking Erdogan to withdraw the Turkish ambassador from
the UAE and pay to fly him back home, why they did not ask him to
expel the Israeli ambassador from Ankara and call back the Turkish
ambassador from Tel Aviv?
These people, as I have said before, are disillusioned, and in the
undisputed words of God the Almighty: “Indeed, Allah will not
change the condition of a people until they change what is in
themselves.” So far, they are undoubtedly a major reason behind the
setbacks the Palestinian cause has faced.
In 1939, the British Mandate decided to hold a conference in London
and invited the Jews who were in Palestine, alongside the Palestinian
leadership and some Arab countries, including Saudi Arabia. Our
delegation was headed by Prince Faisal and included Prince Khalid,
may their souls rest in peace. Both the Jews and the Palestinians
rejected the offer made by the English. The Arab States, including
Saudi Arabia, supported the Palestinians in their rejection.
Shortly after, Britain entered World War II, and Palestine became a
secondary issue to them. Meanwhile, armed groups, which we call
armed gangs, were formed in Israel and were attacking Palestinian
civilians, assassinating and murdering them, and carrying out acts of
terrorism. Palestinian resistance groups were also struggling for the
freedom of their country.
In 1945, shortly before the end of World War II, the late King
Abdulaziz met with the late President Roosevelt and, and the
Palestinian cause took up much of the discussion. This was in
February 1945. A couple of weeks later, in March 1945, King
Abdulaziz sent a lengthy letter to President Roosevelt to put down in
writing what he had said to him verbally, and to get an answer.
President Roosevelt replied. All these documents exist, and I am
presenting them to the Saudi citizens so as to inform them of how
Saudi Arabia’s stance towards Palestine was formed before all the
events that have happened.
Two more events took place in 1945. The first was the founding of
the League of Arab States with five or six members, including Saudi
Arabia.
Newsreader: “To lay the foundations for an alternative Islamic state
to the Ottoman caliphate.”
The second was the founding of the United Nations after the end of
World War II. From 1945 to 1947, the English decided to withdraw
and end the Mandate in Palestine. They began trying to find a
compromise between the Jews and the Palestinians, one that the
Arabs would support in order to bring some calm to the region. They
could not reach a solution agreeable to all sides. So they resorted to
the United Nations Security Council that had been formed only two
years earlier. At that time, the Security Council was comprised of the
US, the Soviet Union, France and Britain. The permanent members
have the power to enforce any decision they make, and their veto is
absolute. They voted on the partition Resolution 181, and from there
on out, a certain way for dealing with events related to the
Palestinian issue started taking shape and being repeated time and
again.
The Jewish delegation was divided into two parts. One part officially
agreed to the resolution, because it would establish two states in
Palestine, one Palestinian and one Jewish. It was not a resolution
that would completely guarantee Palestinian rights, but it would
establish two internationally recognized states to become members
of the General Assembly of the United Nations. The second part of
the Jewish delegation rejected Resolution 181 and was planning to
continue to carry out terrorist and subversive operations against
Palestinian citizens. The two groups were in agreement, and one of
them accepted the resolution and as a result, a Jewish State called
Israel was recognized, which became a Member of the United
Nations. As for the Arab side, the Palestinians rejected the
resolution, and as usual, we supported their rejection.
Many years later, the main demand of our Palestinian brothers has
been UN resolution 181, which is no longer on the table. No one is
discussing it now. This was the beginning, and such events, as I
mentioned, were repeated once, twice, and three times.
Then, the 1948 war took place as a result for the suffocation of the
Palestinian people, and the Arab League countries decided to help
them.
King Abdulaziz had specific advice to the brothers in the Arab
League based on two points:
The first point was that Arab countries neighboring Palestine must
not allow Palestinians to immigrate. Palestinians must remain on
their land because if they immigrate, they will end up in refugee
camps. King Abdulaziz believed that even if there was a need for
camps, they should be on Palestinian soil, not anywhere else, and
history has proven his opinion correct. Now, Egypt, Syria, Lebanon
and Jordan are full of refugee camps. What if these refugee camps
were inside Palestine? Just imagine how different the situation
would have been in the country over time.
The second point on which King Abdulaziz, God rest his soul, based
his opinion was that the Arab countries have a duty to support the
Palestinians at home with money and arms, and to open the door to
those of their citizens who wished to join the resistance. This was in
an effort to encourage Arab immigration to Palestine similar to the
Jewish immigration to Palestine.
Both points were rejected. Since the Kingdom of Saudi Arabia is of
the principle that God stands with those who are united, and those
who stand divided are doomed to fail, we followed them down this
tragic path and their decisions led everyone into the fire.
Between 1948 and 1956, two powerful permanent members of the
Security Council, Britain and France, and a third power being Israel,
led the tripartite aggression against Egypt. The aggression failed for
two reasons.
The first reason is that the US and President Eisenhower rejected this
aggression and demanded the withdrawal of the attacking forces and
cessation of the attack. The Soviet Union had the same stance, so the
attackers had no choice but to withdraw.
The second reason is Egyptian national resistance at home. President
Abdel Nasser, God rest his soul, chose to back the resistance in the
cities of the Canal, instead of pushing the Egyptian army into an
uneven war against two superpowers.
A piece of information often left out is that a result of the Tripartite
Aggression and the occupation of the Suez Canal by France and
Britain was Israel occupying all of Sinai. Britain and France
withdrew, and Israel insisted that it would only withdraw at a price.
What did it demand? First, lifting the embargo imposed by the Arab
countries, especially Egypt as the largest country, and opening the
Gulf of Aqaba so ships can move to and from the Israeli port of
Eilat. Second, having international emergency forces monitor the
Egyptian-Israeli borders. This point is important because one of the
sparks that set off the 1967 war, besides Israel's intent to go on an
all-out war, was when Egypt closed the Gulf of Aqaba and the
emergency forces were withdrawn. The result was the Six-Day War,
which was a great catastrophe for the Arab nation and Egypt, in
particular, as well as the Palestinian people and their cause.
Why did the Nakba of 1967 happen? Because President Abdel
Nasser, God rest his soul, made a strategic decision that was based
on inaccurate or false information from the military leadership that
existed at the time. He had an inaccurate idea about the situation of
his troops on the ground. The result of that is known. The result of
1967: Sinai was occupied by Israel, Gaza was occupied by Israel, the
West Bank was occupied by Israel, the Golan was occupied by Israel
and, most importantly, Jerusalem was lost. So, if this is not a
historical disaster and a terrible defeat in every sense, then I do not
know what is. However, Abdel Nasser, may God have mercy on his
soul, from the day the Six-Day War ended until he died in 1970, did
two things:
The first is that he did everything in his power to rebuild the
Egyptian military.
The second thing was the effort he exerted to save the Palestinians
from themselves, because the Palestinians were largely present in
Jordan, with Abu Ammar’s leadership based there, and they decided
for one reason or another that it was time to liberate not Palestine,
but Jordan. They decided to take over Jordan. Among those who
defended Jordan was the King, the Jordanian army, the Jordanian
people, and the Saudi army. Yes, the Saudi army, which has
participated in all Palestinian-Arab wars with Israel.
In 1948, although we advised that it was better for the Palestinians to
remain in their land while we provided them with arms, money, and
men; it did not come to be. They decided to go to war and King
Abdulaziz ordered the Saudi Army to enter the war with them on the
Egyptian front. Fighting alongside their Egyptian brothers, the Saudi
Army entered Palestinian land and did very well. Egyptian leaders
commended their bravery at the time as well.
Three thousand Saudi soldiers were on the Egyptian front and inside
Palestine. In this war, 150 Saudis were martyred. At the time, the
Saudi army had just been established and had limited capabilities,
but the armies that had been created before it had limited capabilities
as well. As a result of all this, Palestinians were forced to immigrate
again from Jordan to Lebanon. They had only been in Lebanon a few
years when they began to behave as they did in Jordan, and Lebanon
became the new target. With the Palestinians in Lebanon, the
Palestinian war led to the civil war, the price of which Lebanon is
paying to this day. The war resulted in the Israeli invasion, and for
the first time, they reached an Arab capital.
In 1967 … despite in the early 1960s, there was a strong
disagreement between the Kingdom and Egypt regarding Yemen,
and when the aggression against Egypt took place in 1967, Egyptian
airplanes had been striking Jizan and Najran in the Kingdom from
Yemeni land only weeks earlier. When the aggression took place, the
Kingdom offered to support Egypt with anything in our power. They
asked us to host the Egyptian Air Force units that were in Yemen and
for some of the airplanes that they sent to Sudan to be hosted in
Jeddah, and we agreed.
I remember an incident that would highlight to the Saudi citizens the
ethics of their leaders, in contrast with some unethical members of
the Palestinian leadership. The late Mansour Shuaibi, the Jeddah
district commander, suggested to Prince Sultan, the then minister of
defense, that we take pictures and record the presence of Egyptian
planes in the Kingdom, so that if a second dispute with Egypt should
take place, we would publish the evidence of the help we extended
to them. Prince Sultan replied that he would ask King Faisal, God
rest his soul. King Faisal was very angry at the request and refused
to do such a thing while our Egyptian brothers were facing an Israeli
aggression. He refused to gloat and he made sure General Mansour
was informed that if any of the men was caught taking a picture; his
hand would be cut off. This is how Saudis stand by their Arab
brothers.
The Saudi army was mobilized in Tabuk and moved to the Jordanian
front, which is the closest area to us. We wanted to aid our Arab
brothers within our capabilities. By the time they entered Jordan, the
war was over.
King Hussein and Abdel Nasser requested that Saudi troops remain
in Jordan and they did remain from 1967 to 1973. So, you see, we
took part in every battle. When the war of 1973 took place, Jordan
took a sovereign decision not to enter the war. The last time it
entered the war, the West Bank and Jerusalem were lost, they did not
want to take any more risks. Egypt and Saudi Arabia respected King
Hussein’s decision. King Faisal said that our forces could stand by
on the front and simply observe what is happening. He ordered that
the forces be sent to Syria. Indeed, the forces in Jordan went to Syria
and fought alongside their Syrian brothers on the Golan front in the
1973 war and clashes until the cease-fire. The Saudi forces remained
in the Golan from 1973 to 1978 or 1979. We do not need anyone to
patronize us about aiding the Arab nations and helping to carry the
weight of their misfortunes. We share with our brothers and help
them achieve success for the Arab nation, and we also stand with
them in their dark times, through words as well as actions. This is
what Saudi citizens need to understand.
Why do I say this, and why now particularly? Because at this time,
the situation has changed completely from what it used to be. Now
in the information age, the majority of the world’s citizens get their
news from Facebook, the Internet, social media, and so on. No one
reads newspapers anymore except a few, and television programs are
sometimes dishonest, and just as a reminder, some channels give
messages that are false and that direct hatred against the Gulf
countries and their leaders, such as Al Manar and the other Iranian
channels such as Al-Jazeera, which represents Qatar. Qatar, to be
honest, is on the margins. The Qatari people are our dear and
beloved brothers. The state, however, is not worth a mention or a
reaction whatsoever. The best thing is to do is to ignore it. Surely,
you all know that they say ticks can drive camels mad. That is true,
but my brothers and sisters, ticks are ticks and camels will always be
camels, and that sums it up from my point of view.
In 1967, there were zero settlements in the West Bank, Gaza, the
Golan, and Sinai.
In 1970, three years later, there were about 30,000 in the West Bank.
In 1973, the year of the Ramadan War and the October War, there
were over 100,000.
In 1978, when the Camp David peace treaty was signed, there were
about 300,000, according to various data sources.
Today, there are more than 600,000 settlers.
While the Arabs were preparing for war, such as the war in which
the Arab dignity and honor were restored by the Egyptian army, and
Egypt went to Camp David, meanwhile, the initiative of UN
Resolution 242 was presented and rejected by the Palestinians. The
Camp David agreement was rejected by the Palestinians and by the
Arabs. It became the mistake that played a major role in deepening
the Palestinian tragedy, as the Arab nation boycotted Egypt, the
mother of the world, because the Palestinians rejected the autonomy
provisions in the Camp David Treaty and considered this peace
treaty a betrayal to the Arab nation.
What was Israel doing during this period? It built settlements,
occupied more land, and strengthened itself and its army. They were
fighting us on all fronts, paying attention to major details and
leaving the minor issues behind. Who cares for the support of North
Korea? Israel was working on increasing its influence, while the
Arabs were busy with each other. The Palestinians and their leaders
led these disputes among the Arabs.
After the Oslo Accord, I asked Abu Ammar, God rest his soul - and
as they say remember the virtues of your dead - what he thought of
the autonomy provisions in the Camp David Treaty. He said,
“Bandar, Camp David’s autonomy provisions were ten times better
than the Oslo Accord.” I said, “Well, Mr. President, why did you not
agree to it?” He said, “I wanted to, but Hafez al-Assad threatened to
kill me and to drive a wedge among the Palestinians, turning them
against me.” I thought to myself, so he could have been one martyr
and given his life to save millions of Palestinians, but it was as God
willed it.
Interview transcript part two
Extract from part one: “My first reaction was anger. The
Palestinian cause is a just cause, but its advocates are failures, and
the Israeli cause is unjust, but its advocates have proven to be
successful – I recalled events I was witness to.”
“Between late 1977 and early 1978, the late Prince Fahd (at that
time) visited President Carter, where they discussed the Palestinian
cause, as Saudi leaders became accustomed to not meeting anybody
without the Palestinian cause dominating half, if not three quarters,
of the discussions. King Fahd was trying to encourage President
Carter to do something and get the Palestinian cause moving. Carter
expressed his readiness to recognize the Palestine Liberation
Organization (PLO) as the representative of the Palestinian people,
open a PLO office in Washington, and allow US diplomatic officials
to start holding talks with Palestinian officials. In exchange, the PLO
had to recognize the United Nations Resolutions 242 and 338 and
declare that all the countries of the region have the right to live in
peace.
King Fahd, who was the Kingdom’s Crown Prince at that time,
returned home and asked Abu Ammar [Yasser Arafat] to visit him in
Taif, and he did. King Fahd told him about President Carter’s offer,
saying that they were just four lines that needed to be written down
and signed by Abu Ammar before being handed to the American
ambassador, while a specific time will be set the day after for both
parties to announce the agreement at the same time.
Then something happened which I saw with my own eyes ... I did
not witness these discussions but I was later told about them directly
by King Fahd, Prince Saud and President Carter. I saw Abu Ammar
dancing, laughing, and saying, “Palestine is free.” Prince Fahd told
him that “we were just getting started and Palestine will hopefully be
free,” then asked him if he was ready to sign. Abu Ammar said that
he is ready but asked for some time to fly to Kuwait and discuss with
his comrades before coming back the second day for the
announcement.
Prince Fahd told him that he could simply use the phone to call and
inform them but Abu Ammar preferred to go meet them directly in
person. Prince Fahd then suggested asking the Emir of Kuwait to fly
them on board an airplane to Saudi Arabia the same night so Abu
Ammar could discuss with them and get moving the second day but,
once again, Abu Ammar asked for a chance to go to Kuwait and
Prince Fahd agreed. So, he went to Kuwait and no one heard from
him for several days, while the American ambassador was calling
Prince Saud and informing him that Washington was waiting. At the
end, he informed him that all of President Carter’s advisers were
against the offer, while Carter insisted on keeping his word as this
opportunity should not be lost. Ten days later, Abu Ammar’s written
response arrived. In it, he thanked King Fahd, and attached to it was
the official written letter sent to President Carter as agreed. Prince
Fahd reviewed the letter and noticed that Abu Ammar had included
10 conditions the US had to accept in order for him to approve the
UN resolutions 242 and 338 and recognize that all the countries of
the region have the right to live in peace. Prince Fahd said to himself
that even the Soviet Union did not set any conditions for the US;
does he really believe that the US will agree to his conditions?
One of the officials present with King Fahd then told him that he had
done his part and that this was the response of the Palestinian
brothers, which he should on pass to the US and see what happens.
Prince Fahd disagreed and said that: “If this letter is delivered to the
Americans, it will be leaked to everyone, the press and congress,
which will push the anti-Palestinian groups to attack them and make
the situation worse, while we are trying to make a positive change.
Let’s keep Abu Ammar’s letter here and write a letter from me to
Carter, saying ‘The Saudi government has studied the offer and
considered it from all sides but your offer did not convince us, Mr.
President, and therefore we will not hand it over to the Palestinians.’
Give the letter to the American ambassador so he can deliver it to
President Carter. Because we are ready to take responsibility vis-avis
the Americans for not facilitating the process; we do not want the
Palestinians to be held responsible for the failure.”
This happened time and time again but you have never heard a Saudi
official discussing it. Did you ever hear any Saudis talking about
what that happened in 1977, 1978 through 1990 when the
Palestinians supported Saddam’s occupation of Kuwait, or as a
response for them going out in the street and waving photos of
Saddam Hussein in Nablus when Riyadh was hit with missiles? No,
because we have an objective, which is to serve the Palestinian
people because we believe that their cause is a just one. However, it
is not our fault that God gave them such leaders. As I already
mentioned, we are dealing with a just cause with bad advocates,
while the Israelis are dealing with an unjust cause with successful
advocates, whether we like it or not. This is the reality and the
results on the ground.
In 1985, as I was the Saudi ambassador to the US, President Reagan
asked me to ask Prince Fahd for a favor for him. The favor was that
they had a problem in Nicaragua, where Congress was supporting
the Contras but had to cut their aid due to partisan disputes between
the Republicans and the Democrats. This took place during a
sensitive stage of the war in Nicaragua and the Americans thought
that Saudi Arabia could help fill this gap for two months. They asked
me to pass the request on to King Fahd, who told me to convey his
approval and express our readiness to help. He said, “Bandar, this is
an investment with Reagan, and one day I’ll withdraw my
investment.” I did as I was told and Reagan was very happy. A lot of
people may ask, “What does Saudi Arabia have to do with Nicaragua
and the Contras?” The truth is that we had nothing to do with them,
but we had interests. If you asked anybody back then in the streets of
Riyadh, Jeddah or Al-Jouf about the Contras or Nicaragua, they
would tell you that they are the names of diseases or something else.
They had nothing to do with us, but there was a strategic relation
that only a person who thinks strategically could see.
For King Fahd, Afghanistan was occupied by the Soviet Union and
we supported the Jihadis there, while the Americans approved of this
position. So, we had to make sure the Americans would continue to
support us until the Soviet Union left Afghanistan. We had interests
here, they had interests there. We wanted to secure their continued
support in Afghanistan.
In 1986, King Fahd asked me to propose to President Reagan to do
something to help the Palestinian cause. I went and met with
President Reagan. I informed him that the Palestinians now agreed to
UN Resolution 242, which they had rejected in 1973. This took
place during the period between King Fahd’s initiatives in 1981 and
1982. They did not agree to the 1981 initiative in Fez because they
objected to the point that expressed “the right of all regions to live in
peace”, which was later approved in Oslo. As I have told you,
history repeats itself. They’ve always say that we do not support
them but we know that we are protecting them. Then they come and
say that they accept an offer that is no longer on the table and so on.
The grey hair that I have is because of them and their lost
opportunities, and thinking how we had certain circumstances and
we had a strong influence that could have enabled us to do
something.
Anyway, President Reagan agreed but the Secretary of State
[George] Shultz did not. I later learned that Shultz was not aware of
the arrangement we had made with Reagan concerning the Contras
so I told him about it. I took a letter saying that if the Palestinians
recognize UN Resolution 242, just like in Carter’s offer, denounce
terrorism and recognize the right of the region’s states to live in
peace, Reagan was ready to recognize the PLO and hold talks with
it. I left and called King Fahd and told him about the offer. “Are you
sure?” He asked. I told him that I had the letter written and signed so
he told me to go ahead with the plan and asked me to head to Tunisia
to deliver the letter to Abu Ammar directly. I went there and met Abu
Ammar, may God have mercy on his soul, where I saw what they
told me had happened after Carter’s offer. Abu Ammar stood up as
usual, and said, “Palestine is free!” and he started dancing and
kissing and hugging me. It is well known to everyone that Abu
Ammar always loved to kiss people. I asked him about the
announcement date so he can go meet with [Jordan’s] King Hussein
to hold a joint declaration and so on. “Not possible,” he replied.
“How is it not possible? This is what you asked for and we got it for
you,” I said. He replied, “I follow an Arab code of ethics.” I said,
“Absolutely, now go for it and don’t waste another opportunity.” He
then proceeded to tell me that he first needed to go to Saudi Arabia
to thank King Fahd for what he had done before going to King
Hussein. I assured him that King Fahd did not doubt his feelings and
if he went to King Hussein, made the declaration first and got the
desired response from the Americans, King Fahd would warmly
welcome him. This he refused. I agreed to let him go to the
Kingdom, and when he requested a plane I told him he could use the
plane I came on to go to Jeddah. He took the plane and we did not
see him for a month. He went to South Yemen and North Korea, with
whom we did not even have ties. He also visited countries in Africa
and Asia before arriving in the Kingdom. After all this time, the
Americans said that they were no longer interested. Many things had
happened and their focus had shifted.
In Lebanon, there was an attack targeting the Palestinians in South
Lebanon, while the Syrian Army in Tripoli surrounded Abu Ammar.
King Fahd was upset by the Israelis attacking and killing
Palestinians in South Lebanon. He ordered me to go and deliver an
urgent letter to President Reagan, saying that the US must take a
stand. I went and met with the Secretary of State Shultz to tell him
that the King wanted this message quickly delivered to President
Reagan that same night. He said he would do it but also informed me
that according to Reagan’s policy, Shultz had the authority to
directly go to the pressroom at the State Department and condemn
Israel and its operations against the Palestinians and ask them to
stop. I was overjoyed, however, he said he would do so on the
condition that I accompany him and condemn the Syrians for
targeting the Palestinians and ask them to stop. I thought to myself,
this cause is so unfortunate, every time there’s a glimmer of hope,
something new comes up, just as [Saudi Arabia’s] Prince Khalid Al-
Faisal once said. I told Shultz that we were asking the US to take a
stand against Israel and that we would work things out with the
Syrians. What I am trying to say is that there were always new
opportunities but they were always lost.
During King Fahd’s visit to the US in 1985, two incidents took
place:
The first incident happened on the first day of the visit. King Fahd’s
meetings with President Reagan were all positive and an official
banquet was scheduled that night. We were happy because they had
launched a new initiative and were exerting efforts that later resulted
in Shultz meeting with Abu Ammar in Geneva. When the king got
back to his residence that day, President Reagan’s National Security
Adviser [Robert McFarlane] called me asking for a copy of the
speech King Fahd was going to deliver that night. I agreed to send
him the speech and asked if it is possible for them to send us a copy
of the president’s speech. He apologized saying that in line with the
tradition of the US government, the president’s speech cannot be
circulated and will later be distributed to the press. To be honest, I
wasn’t that concerned, but doubt started to creep in. When I told
King Fahd about the entire exchange, he agreed to me sending them
a copy of his speech. We attended the dinner, the entire Saudi
delegation, and the president was sitting with King Fahd at the table.
As I was seated to the right of the vice-president, George Bush
senior at the time, King Fahd started waving at me. Bush saw him
and told me. So, I stood up and walked over to the king. It was an
official dinner attended by around 150 guests, half of whom were
journalists. I was wearing the Saudi national dress, and when I stood
up people noticed and were wondering why I was going to speak
with the king. King Fahd then asked me to go outside, call for the
national security adviser and tell him that the king wanted the
president to delete the entire paragraph related to the Middle East
from his speech. “If he refuses, I will say something in response to
that paragraph. The president will not like it and this visit will turn
into something negative,” he added. I was about to ask him what he
meant but he told me to just go. I went outside and started trying to
get McFarlane’s attention before stopping one of the attendants, who
went in and told him to meet me outside. He came to me, asked if
everything was OK, and I conveyed the king’s request. “What
happened? How did the king know about this paragraph in the
speech?” he asked me. “I do not know. The king did not tell me
anything,” I replied. He then asked me if it was serious and I assured
him it was because King Fahd does not joke in serious times, he only
smiles, but beware his smile when he is upset. McFarlane went back
to his table, took a menu, wrote something on the back and passed it
to one of the attendants to give to President Reagan. The president
read it, gave his speech to the same attendant to pass it to McFarlane
who took a pen and started crossing out the relevant paragraph
before passing the speech back to Reagan. As I was still standing
outside, McFarlane looked at me to signal me that it was done, and I
passed the message to King Fahd, who just nodded his head. The
vice-president asked me what had happened but I told him that I had
no idea. President Reagan delivered his speech. He thanked the king
and praised the bilateral relations that date back to President
Roosevelt and King Abdulaziz, in line with the usual speech between
the US and Saudi. He then added that “I know that the king
encourages the youth and sports and that you have football teams
visiting other countries. I wish you a successful visit and that you
feel comfortable in our country.” People applauded. Then the king
stood up, and without taking his speech out of his pocket, said the
same things, thanked the president for his hospitality and spoke of
the bilateral relations since the time of King Abdulaziz and
Roosevelt’s mandate, and then paused before adding “You are right
Mr. President. We love to encourage the youth and sports, especially
football. We have two young teams, one in Beijing, China and the
other in Moscow, in the Soviet Union. The truth is that young people
should be encouraged to be athletic. Thank you for the hospitality.”
He sat back down, while the whole Saudi delegation including
Prince Saud, was looking at me as if they were asking me about
what had happened because the speech was originally full of talk of
the Middle East! I said nothing. We finished and King Fahd asked
Prince Saud Al-Faisal and myself to accompany him. We got in the
car, he did not say a word. When we arrived at the residence, he
turned towards Prince Saud and asked him if he had liked his speech.
Prince Saud replied, “You are always right.” He did not ask me
anything.
When the king got to the residence, he asked for me. He wondered if
I was curious to know what had happened and I said yes. He
explained by saying that “The Minister of Media told me that the
speech will be broadcast live in the Kingdom and I wanted to give
you guidance as to what your first reaction should be because as
soon as you leave here you will receive many phone calls, the first of
which will be from Prince Abdullah, Prince Sultan, Prince Salman
and Prince Naif. You tell them that you do not know anything and I
will talk to them when I come back. All I can tell you is that this is
because of you, it has been on my mind ever since you told me that
they refused to give us the president’s speech in advance. When we
attended the dinner, I asked the interpreter how he would interpret
my speech and he told me that the Embassy had provided him with
an English version. I said ‘Ok, but what about the president? How
will you translate his speech into Arabic?’ He told me that he had an
Arabic version of the president’s speech. I asked him if I could see it
but he apologized saying that he had instructions and no one was
allowed to see the speeches until after they were delivered. Then I
changed my mind and spoke with Reagan in my limited English, but
which got the message across. He asked them to give me a copy of
the speech. He turned to the interpreter and asked him if he had an
Arabic version of the speech and to show it to me.” This was not a
sensitive matter for Reagan. It was normal for him.
The paragraph on the Middle East started as such: “President Carter,
President Sadat and Prime Minister Begin made history with the
Camp David agreement. I hope that the Israeli Prime Minister, you,
and I can make history once again.” This was the paragraph the king
wanted removed. The king’s speech had parts about the Palestinian
cause saying that it was a political one and that we wanted justice
and peace through UN resolutions. The king said that since they had
omitted their paragraph, we omitted ours. Everybody was wondering
why King Fahd was talking about football and the Saudi teams in
China and Russia under these sensitive circumstances. If the reasons
were known, these questions would subside. As soon as I left, I was
informed that the crown prince had called me along with Prince
Sultan, Prince Naif and Prince Salman. I went and replied to all of
them that I did not know anything. We had a speech, but then the
king spoke in his own words.
What I mean to say is that we do not have false promises and empty
slogans to sell to the people. We have positions and actions. If we
look at the years from 1985 to 1993, the Palestinians were
negotiating the Oslo Accords without informing the Egyptians. The
late Hosni Mubarak told me in person that “After they had reached
an agreement and before going to the Americans to set a date for the
signature ceremony and the mutual recognition between the
Palestinians and the Israelis, Rabin requested to meet me and I was
made aware of the agreement by Rabin before the Palestinians even
told us. I told Rabin that what is important is that they had reached
an agreement. Can you believe that Bandar?” I replied by telling him
that we have a saying that means that the leaders are wiser, “You are
a president and those are also leaders. I cannot comment on what
happened.”
The Oslo Accords took place, and Abu Ammar said the Camp David
agreement was ten times better than Oslo. A lost opportunity. He
asked them to go back to the self-rule agreement but they said that it
was off the table and there was a new deal. What’s so painful is that
it was the Palestinian people who suffered the most from this
tragedy. I say this now for the Saudi citizens, our young men and
women, so they can be aware of what happened. They should be
proud of the positions taken by their nation and leadership. History
shows and documents bear witness to what happened, and now I
have shared it with you.
Interview transcript part three
The third part began with extracts from the second part: "After
writing down everything we have discussed yesterday and then
reading it, I said to myself, it might be best to improvise and speak
frankly, the grey hair that I have is because of them… I told him he
could use the plane I came on to go to Jeddah and we did not see
him for a month... there were always new opportunities but they
were always lost... They've always said no, and we've always
supported them although we knew their rejection would backfire...
but Hafez al-Assad threatened to kill me and to drive a wedge
among the Palestinians, turning them against me... Saudi citizens
should be proud of the positions taken by their nation and
leadership.”
Next came the Oslo Accords in 1993. What happened in Oslo is well
known. Ammar [Yasser Arafat], [Israeli former Prime Minister
Yitzhak] Rabin, and [former President Simon] Peres went to
Washington and signed the Oslo Accords and recognized each other,
the thing that everybody was forbidden to do before. But we should
not forget that that moment was an important stage during the period
in which there was no positive movement toward the Palestinian
cause, and despite all the events I mentioned, whether it was Abu
Ammar going to Saddam [Hussein], or the dancing in Nablus in
celebration of Riyadh being hit, and so on ... After all this, we had no
relations, all relations with Abu Ammar and his people were cut, but
we did not cut off our relations with the Palestinian cause. Palestine
is not its leaders, Palestine is Palestine. They are the ones causing
harm, not us, and if something happened like the boycott after the
liberation of Kuwait and so on, they were the reason.
Immediately after the war, King Fahd ordered me to work with
President Bush Sr. and Secretary of State [James] Baker to quickly
achieve something for peace. Then Prince Saud, Baker, and I sat
together in 1991. Discussions took place with [Soviet former
President Mikhail] Gorbachev at the time, and there was an
agreement to hold a peace conference in Madrid in October 1991. It
was very important because it was sponsored by the two
superpowers: the US and the Soviet Union. So we started planning
for the Madrid conference, as I said, given its importance due to the
fact that it was held under the auspices of the two superpowers and
would be attended by President Bush and President Gorbachev.
[Syria’s] President [Hafez] al-Assad decided not to attend, so King
Fahd asked me to go and meet him. I met President al-Assad at his
palace in Latakia, and after a long dialogue, I made clear to him
King Fahd’s stance and that it served Syria and did not harm it, and
served Arab influence vis-a-vis the Palestinian cause.
I said, “Mr. President, you have a burden which is the occupied
Golan Heights, and we want to see it liberated, God willing, and the
burden of the Palestinian cause. It is not possible for the entire Arab
world to go, and the important Arab countries are the Gulf states as
represented by their secretary general, whom I will accompany, then
Egypt, the Palestinians, Jordan and Lebanon. The Lebanese said they
would only go if you go. You are the Syrian President, and Syria
would be absent while the two superpowers attended.”
He thought for a while, we were sitting in his salon opening out onto
a large balcony overlooking the sea. On the balcony, I could see a
young man from his security forces carrying a Kalashnikov and
walking back and forth. May God have mercy on Hafez al-Assad, he
had bad deeds and good deeds, but one thing about him that I recall
is that he never lied to me. But for him to agree was one of the most
difficult things, getting his approval... but once he agreed, he was
committed.
He said to me, "I agree, and I will send our delegation headed by
[former Foreign Minister] Faruq al-Sharaa, and of course if our
Lebanese brothers want to go they can go." I said, "Mr. President, if
you go, the Lebanese will go." He said OK, and the Lebanese
foreign minister at the time was [Fares] Boueiz. He then said
something to me I will never forget, he said, "Listen carefully, do
you see that young man over there?" I said yes. He said, "After we
announce that we are going to attend a face-to-face meeting in which
Israel is present, I do not trust that I can turn my back to him." I then
understood the size of the problem for him internally, security-wise
and partisan-wise. Later, I thought about it, and it is actually not
strange, you fill people’s heads and hearts with a certain idea, and
suddenly an opportunity arises without you having the chance to
convince the people with the wisdom and the public interest that this
opportunity presents. Like what I am trying to do now with Saudi
citizens.
I told him, "Mr. President, on the contrary, you are a role model for
your people and they trust you. If you decide to do this, they will
understand, God willing." We went to Madrid and the rest is history.
A minor incident took place in Madrid. There was a Palestinian
young man wearing a Palestinian keffiyyeh [traditional scarf] over
his shoulder, and as Abdullah Bishara and I were going to enter the
meeting room, we heard a heated discussion inside. We asked what
was going on, and we were told that the Israeli delegation was
objecting to this Palestinian wearing a keffiyyeh over his shoulder.
We asked why. They said, "He can't come in wearing that, he needs
to take it off and then come in." I saw the whole discussion was over
nothing, but I was moved... first, their land was taken, and then he is
told he cannot wear his keffiyyeh over his shoulder... I said, "Wait, if
this Palestinian youth cannot come in wearing what he wants,
something he considers patriotic, then I and Abdullah Bishara and
the Gulf delegation will withdraw." When you stop to think after a
decisive moment, you must be prepared and must be logical. As the
saying goes, if you want to be gratified, request what is possible. So,
I said "But I will remove this young man's keffiyyeh from his
shoulder if the members of the Israeli delegation who are wearing
head coverings remove them." The people we were talking to fell
silent. Spanish security, American security and it appears there were
Israelis as well. Anyway, then Jim Baker came and they told him
what was going on, and he said, "Now I know why there is a
problem in the Middle East. If you cannot agree if someone can wear
their national dress then we have a bigger problem than I imagined."
I said, "Jim, welcome to the Middle East." We laughed. Then he
said, "Do not waste time. Presidents Bush and Gorbachev are on the
way. Everyone should just go in and sit down however they want."
So, we went in. Some people may think that this is a silly story, but
it has a deeper meaning for anyone who wants to understand it.
After that event and after Oslo, in 1995 they began to negotiate with
each other, and they no longer needed a mediator to sit with them or
secret meetings. They started meeting publicly and so on.
In 1995, there were meetings attended by the Syrians, the
Palestinians, and the Israelis, but the Syrians insisted that this would
not be a joint Arab-Israeli meeting. The Palestinians meet with the
Israelis and the Syrians meet with the Israelis. When they first
started, they would not sit in the same room, but then afterwards the
meetings became face-to-face and so on. The negotiations went on
from 1995 to 2000 but did not yield anything tangible.
In 2000, President al-Assad died, may God have mercy on him, and
the Syrians stopped their activity for a certain period. The new
president was a young man, he was trying to see what the next steps
should be, and he did not have the same presence as his father in the
country. A Palestinian-American meeting took place at Camp David
in December 2000 where President Clinton presented his final plan.
But by January, a month later, Clinton's term ended and a new
president took office. The offer the Americans presented was
rejected by the Palestinians, and after I was briefed on it and
informed Prince Saud, and then Prince Abdullah, may they rest in
peace, I got instructions that we also were rejecting it and to tell the
Americans that we could not support this agreement.
As part of the mental games and manipulation of the Palestinian
cause, Abu Ammar used to say that they had offered us something
that we could not accept at Camp David, but what he did not say is
that the Americans agreed that there was something wrong with it
and that the offer needed to be improved. In January, there was a
meeting between Abu Ammar and Clinton in which the final offer
was presented, that - in my opinion - could have changed the shape
of the whole map. The Palestinians were initially convinced, but
others convinced them otherwise - or it was a lack of success from
God – since he is the son of Bush Sr., who is said to have been a
friend of the Saudis, then surely his son would also be their friend.
Why would we make an agreement during the term of an outgoing
president? We reach an agreement, then reject it and stop it, then
when the new president comes, we accept the agreement.
I told the Palestinians that the idea they had was wrong, and that the
new person who will come into office had an opinion on foreign
policy that is different from what they expect, and that anything that
they could secure from the Americans now was a commitment and
was in their interest. They asked us to confirm this from the
president-elect. I called president-elect Bush Jr. and told him, "The
Palestinians believe they should not sign the agreement with
President Clinton and are waiting for you to take office and sign the
agreement during your term." George W. Bush said to me, "Bandar,
you know me well, I want to tell you three things, the first you can
say to the Palestinians, and the second and third points, you are free
to say them or not. The first point is that America only has one
president at a time. Tell them not to discuss with me what they plan
to do after I become president. The other two points are for you, and
if you want to tell them you can, which is that Camp David is not a
hotel. I go to Camp David with my family to relax, or I go to meet
with American officials. I am not opening Camp David as a hotel
like Clinton used to do. The last thing is that I do not like to speak
on the phone. I have been informed that Clinton used to talk with
Abu Ammar for four hours on the phone. I do not even talk to my
own mother for more than half an hour, so how would I talk to him
for that long? Whatever I find signed by the American President, I
am committed to it, and beyond that I have nothing for you."
I conveyed this to the Palestinians, who said, “But there is another
problem." I asked what it was. I want to show how they did not want
to reach a solution, to free the Palestinian people from their
suffering. They said it was about Colin Powell, then designated
secretary of state, who had an office already in preparation of the
new president's term. They said "We have been informed that he
received an Israeli delegation already. This is bias. Whereas we
asked him and he said he did not have time to see us." I said to them,
"I know Colin personally very well, and I am sure that his view will
not be negative towards you, so do not bother him until after he
becomes secretary of state." They insisted. So I called Secretary
Powell, I implored him, "Please meet with the Palestinians, seeing as
you met the Israelis, and it will not look good if you do not meet
them." He thought for a minute and said, "OK, let them come, but
just for fifteen minutes." I said, "Two minutes." They were happy,
they went and saw him and came back. The Americans told me about
their new offer, and they told me that the Palestinian delegation was
happy with it.
I no longer trusted them not to let us down again, so I sought
permission from Prince Abdullah and Prince Saud, may they rest in
peace, and I went on my annual vacation at the end of the year. I was
in Colorado, when Prince Abdullah called me and said "Abu Ammar
is in Washington, and he asked me for you to return to Washington to
be with them." I said, "With all due respect, if they agree, there is no
reason for me to be there, and if they disagree then I am sure that my
presence will not have any effect." But he said "Abu Ammar
insisted, so I told him OK. And I coordinated with Hosni Mubarak
that you and your colleague, the Egyptian ambassador, would go and
see Abu Ammar."
I returned from Aspen and met with Abu Ammar at my house, along
with the Egyptian ambassador, and we talked about the matter at
hand, and how grateful and appreciative he was. I asked how things
were going. He said "Things are good. There is just one little detail.
Tomorrow morning we have a meeting at the White House, and after
that the announcement will take place, but I have a request from
you.” He meant me and my colleague Egyptian Ambassador Fahmy.
We asked what the request was, and he said, "I want you to make
sure that Prince Abdullah, King Hassan, and President Hosni
Mubarak - right after we announce the agreement between Clinton
and Ehud Barak, the Prime Minister of Israel - immediately declare
their support so that it balances things out for us. And so that Syria
does not give us trouble." The Egyptian ambassador said to him,
"Mr. President, if you announce it, not only will they declare their
support they will come here and support it if you like." I said, "I
agree, once Morocco, Saudi Arabia and Egypt declare support, I
assure you that the Gulf states will support you, and Jordan will
support you, no problem in this regard." He said OK, and left.
The next day I asked my friend, the Egyptian ambassador, "What do
you think?" He said, "I am starting to have doubt." I said, "You call
through your channels and I will call the Americans through my
channels, and we will see how things are, and if needed, you and I
can intervene quickly, and if we cannot, then at least we can inform
our leaders to move quickly, there will not be other chances,
tomorrow is decisive." The next day we got a call mid-morning,
saying that Abu Ammar wanted to see me and the Egyptian
ambassador right away at the hotel he was staying at. We went in to
him, greeted him and sat down. He did not seem like his usual self,
so I asked him, "Abu Ammar, please reassure us." He said, "Good
news, it went through." I said, "Are you sure?" He said yes. "Why
did you not announce it?" He said, "There is just a small matter
related to security, I am waiting now for the head of the CIA -
George Tenet at the time - because there is a simple amendment to
be made, maybe linguistic or something, and after we finish, I will
return to the White House." I said, "Thank you for the great news."
Fahmy said, "Congratulations, Mr. President."
At that moment, the Saudi accompanying officer, Major General
Nayef Al-Muzaini, came in and gave me a piece of paper. I opened
it, it was a message saying "We would like Bandar to contact the
White House as soon as possible because the president's national
security adviser wants to talk with him." I closed the paper and
looked at Abu Ammar, and said "With your permission, Mr.
President, I need to go out and take a call." He said, "No, take the
phone call from here." I said, "No, I want to speak outside." He said,
"Why when there is a phone in the room?” I said, "Abu Ammar, this
is a personal family issue, I will go out and make the call and be
right back." I went out, and phoned the national security advisor who
told me "Abu Ammar is late, there is no time left, and we need to
know his response." I said, "Abu Ammar says that you have agreed
and that is that." He said, "What he is saying is not true." I said,
"How so? He said, "It is not true." Then the voice changed, it was
President Clinton, he was in the room, and he took the receiver and
talked to me. He said, "Listen, Bandar, I offered an agreement that
no one before me ever offered the Palestinians, and two days ago
Ehud Barak called and said, “I cannot go through this agreement
because I do not have support for it in Israel and in my government.”
And I told Barak, “This agreement that we reached with you will not
be changed, and if you withdraw from it or reject it, I will publicly
declare that Israel has failed in the peace agreement that was
proposed and previously approved.” So I told Abu Ammar the same
thing and now he wants to change some paragraphs; I do not accept
changing them and we cannot change them. And I have Israeli
approval now, if Abu Ammar came here I will make this
announcement with him, Barak will come here and the three of us
will meet and announce the agreement." I said, "But Abu Ammar
says that he agrees, Mr. President." He said, "He is lying, he said he
would be back in half an hour, and we have been waiting for him for
two hours."
I wanted to cry, my heart was burning at how the opportunity was
lost again and perhaps for the last time, as if I was seeing a movie
playing in front of my eyes. An opportunity comes, and it is lost.
After it is lost, we agree on what we rejected, and we put it on the
table. Then people say that there is nothing on the table, and so on
over and over. As the saying goes, with repetition you become
cleverer. With all due respect to our viewers, the Saudi people and
the Palestinian people.
But this is what happened. I went back to the room. I said, "Abu
Ammar, I am going to ask you a question for the last time. Have you
and President Clinton agreed?" He said yes. I said,
"Congratulations." He stood up and hugged us. Then I asked for his
permission to leave. He said, "No, do not go. Stay here with us until
we are done." I said, "But you are done." He said, "No, please, you
must stay and celebrate with us." I told him, "Listen Abu Ammar, the
ambassador of Egypt, the largest Arab country, is here, my brother
and colleague Fahmy who represents all Arabs will stay here with
you." The Egyptian ambassador looked at me as if to say, 'What is
happening?', and then I added "but I must go because my family is in
the place I left them on vacation. I wholeheartedly congratulate you,
and I will watch it on TV and share in your joy. And at the first
opportunity, I will tell Prince Abdullah, Prince Saud, and our
officials that, praise God, Palestine has been liberated, just as Abu
Ammar said it would be." He insisted that I do not go, he took hold
of me and pulled me, and I kept pulling away, all the way to the
elevator, he would not let go of me. Finally, I said to him, "Abu
Ammar, I need to travel. What do you want? If you are telling the
truth and you have reached an agreement, then what do you need me
for?"
The officers who were with me and the American security opened
the elevator, and I got in and went down, and got into my car. I said,
"Head for the airport, we will leave tonight as soon as the plane is
ready." I called Prince Abdullah, who said "So, Bandar, is it a lion or
a hyena?" I said, "By God, I did not expect a lion, just a hyena, I do
not know.” He said, "How come?" I said, "Abu Ammar is saying,
'We have reached an agreement,' and Clinton just talked to me and
he says, 'We have not reached an agreement, and if he does not sign,
I will withdraw the entire agreement and I will not transfer it to the
next president, because he does not want us to leave unfinished
business for him.'" He said, "For goodness sakes, Bandar." I said,
"As you can see, this is what’s happening." He said, "What will you
do?" I said, "I want to go back to my family if you give me
permission." He told me to go ahead. And that was that.
Despite all that happened, I received directives to ask Clinton not to
hold Palestine fully responsible. After some back and forth and calls
from Prince Abdullah himself to President Clinton, he said, "Ok, I
will declare that we have not reached a solution."
After the new president, George W. Bush, came to office, Prince
Abdullah made a second attempt and a great effort. He visited the
US and visited the president on his ranch, and important points were
reached. Bush agreed that in late August, early September, when he
was going to give a speech in front of the UN, that he would include
a paragraph on the Palestinian cause, and that he would recognize
both the Palestinian and Israeli states, and that work was being done
to achieve this goal, and to add some paragraphs that the Palestinians
were demanding. President Bush assigned Secretary of State Colin
Powell, Head of the CIA George Tenet, and his National Security
Adviser Condoleezza Rice to meet with me and to write this
paragraph in the speech in the way that we agreed upon. And after
lots of back and forth, referring back to Riyadh and to the
Palestinians, we finally arrived at a semi-agreed upon text.
On September 8, Colin called me and said, "Tomorrow I have to go
to Latin America, there is a meeting of the countries of South
America, and I have to give a speech there. I return on the night of
September 10, on September 11 let us meet and finish this. Then I’ll
send it to the President for final approval, and we’ll go to New
York." I agreed. We called the others to meet on the 11th in order to
activate the Palestinian cause in the first year of the new president's
term. Unfortunately, this was not meant to be.
The day of September 11 requires no explanation. The Palestinian
cause became the least concern for America and for much of the
world, until some other attempts were made later on.
Going back to the reason why I bring all this up now, it is because
our dear Saudi citizens and our brothers and sisters in neighboring
Gulf countries need to know what their leaders and countries have
done in service of the Palestinian issue, with complete dedication.
And that if there is now a denial of this on behalf of the Palestinian
leaders, this will not affect our attachment to the cause of the
Palestinian people. But with these people [the leaders] it is difficult
to trust them and to do something for the Palestinian cause with
them around.
In my personal opinion, with all the events that have taken place
around the world, we are at a stage in which rather than being
concerned with how to face the Israeli challenges in order to serve
the Palestinian cause, we have to pay attention to our national
security and interests. New players came into the picture, claiming
that they are serving the Palestinian cause and that the Palestinian
cause is their priority, and that Jerusalem is their first goal. These are
countries such as Iran and Turkey, and the Palestinian leaders have
come to regard Tehran and Ankara higher than they regard Riyadh,
Kuwait, Abu Dhabi, Dubai, Manama, Oman, Muscat, and Cairo.
As I said before, God says in the Holy Book, "My Lord, forgive me
and my parents." Knowing that Heaven is under the feet of mothers.
We never made any violations, and never violated God's law. We are
followers, given that we live in this challenging era, and the duty of
our leaders is to preserve our national security and the security,
economic, welfare, and social interests of our peoples. We are
surrounded by a stormy sea all around us, and we are one of the few
[stable] countries - islands in the middle of this sea. We owe it to our
peoples to maintain this situation that we live in.
Egypt is the largest Arab country and a great nation, and works day
and night to lift the Palestinians up from all the challenges and
restrictions imposed on the people of Gaza by Israel, [but] is facing a
hotspot for terrorism from which terrorists enter Sinai and Egypt and
commit crimes. O people, we do not see God with our eyes but we
believe in Him with our minds. Neither the Egyptian people, nor the
people of the Gulf and many Arab nations are pleased with what we
see.
Turkey occupies Libya and wants to liberate Jerusalem by
withdrawing its ambassador from Abu Dhabi.
Iran wants to liberate Jerusalem through the Houthis in Yemen or
through Hezbollah in Lebanon and Syria.
Things are clear and we are at our limit with those guys. And now, I
have conveyed what was in my heart and spoken directly to the
audience that concerns me and to our citizens. Everything that I said
is documented and known, and I am going to start a social media
account, Twitter, etc., and I will post all these documents and
everything I talked about on this account. Anyone who wants more
details can find them there, otherwise I could spend ten hours telling
you all the details, which I will not do.
I hope and ask God Almighty that I have faithfully fulfilled my
obligation, so that we do not allow liars, cheaters, those who are
disloyal and who deny what was done for them, to impose their
traditions and their way of dealing with each other on us. We also
have our own history, we know it and we know theirs, and this is
what I wanted to explain to my fellow citizens, given the crucial
importance of this stage and the circumstances we are experiencing
now. And Allah is the grantor of success.
Thank you for giving me the time to talk about this with you.
Good night.
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Annex 5
Security Council Resolution 242 (22 November 1967)
Decisions
At its 1373rd meeting, on 9 November 1%7, the
Council decided to invite the representatives of
the United Arab Republic, Israel and Jordan to participate,
without vote, in the discussion of the item
entitled "The situation in the Middle East: Letter dated
7 November 1%7 from the Permanent Representative
of the United Arab Republic addressed to the President
of the Security Council ( S/8226) ".11
At its 1375th meeting, on 13 November 1967, the
Council decided to invite the representative of Syria
to participate, without vote. in the discussion of the
question.
Resolution 242 (1967)
of 22 November 1967
The Security Council,
Expressing its continuing concern with the grdvc
situation in the Middle East,
Emphasizing the inadmissibility of the acquisition
of territory by war and the need to work for a just
and lasting peace in which every State in the area can
live in security,
Emphasizing further that all Member States in their
acceptance of the Charter of the United Nations have
undertaken a commitment to act in accordance with
Article 2 of the Charter,
1. Affirms that the fulfilment of Charter principles
requires the establishment of a just and lasting peace
in the Middle East which should include the application
of both the following principles:
(i) "Withdrawal of Israel armed forces from territories
occupied in the recent conflict;
(ii) Termination of all claims or states of belligerency
and respect for and acknowledgement of
the sovereignty, territorial integrity and political
independence of every State in the area and
their right to live in peace within secure and
recognized boundaries free from threats or acts
of force;
2. Affirms further the necessity
(a) For guaranteeing freedom of navigation through
international waterways in the area;
( b) For achieving a just settlement of the refugee
problem;
( c) For guaranteeing the territorial inviolability and
political independence of every State in the · area,
11 [bid.
8
Decisions
A sa 1373e seance, le 9 novembre 1967, le Conseil
a decide d'inviter Jes representants de la Republique
arabe unie, d'Israel et de la Jordanie a participer, sans
clroit de vote, a la discussion de la question intitulee
"La situation au Moyen-Orient : Lettre, en date du
7 novembre 1967, adressee au President du Conseil de
securite par le representant permanent de la Republique
arabe unie ( S/822611
) ".
A sa 137Se seance, le 13 novembre 1967, le Conseil
a decide d'inviter le representant de la Syrie a participer,
sans droit de vote, a la discussion de la question.
Resolution 242 (1967)
du 22 novembre 1967
Le C onseil de sccuritc,
Exprinzant !'inquietude que continue de Jui causer
ia grav(' situation au Moyen-Orient,
Soulignant l'inadmissibilite de !'acquisition de territoire
par la guerre et la necessite d'~uvrer pour une
paix juste et durable permettant a chaque Etat de la
region de vivre en securite, ,
Soulignant en outre que tous les Etats Membres, en
acceptant la Charte des Nations Unies, ont contracte
!'engagement d'agir conformement a I' Article 2 de la
Charte,
1. A ffirme que l'accomplissement des principes de
la Charte exige l'ins.tauration d'une paix juste et durable
au Moyen-Orient qui devrait comprendre !'application
des deux principes suivants :
i) Retrait des forces armees israeliennes des territoires
occupes !ors du recent conflit;
ii) Cessation de toutes assertions de belligerance ou
de tous etats de helligerance et respect et reconnaissance
de la souverainete, de l'integrite krritoriale
et de l'independance politique de chaqt1r
Etat de la region et de leur droit de vivre en
paix a l'inter ieur de frontieres sures et reconnues
a l'abri de mrnaces ou d'actes de force;
2. A ffirmc en outre la necessite
a) De garantir la licerte de navigation sur Jes voies
d'eau internationales de la region;
b) De realiser un j uste reglement du probleme des
refugies;
C-, De garantir l'inviolabilite territoriale et l'independance
politique de chaque Etat de la region, par
11 Ibid.
through measures including the establishment of demilitarized
zones;
3. Requests the Secretary-General to designate a
Special Representative to proceed to the Middle East
to establish and maintain contacts with the States
concerned in order to promote agreement and assist
efforts to achieve a peaceful and accepted settlement
in accordance with the provisions and principles in
this resolution ;
4. Requests the Secretary-General to report to the
Security Council on the progress of the efforts of
the Special Representative as sooa as possible.
Adopted unanimously at the
1382nd meeting.
Decision
On 8 December 1967, the following statement which
reflected the view of the members of the Council was
circulated by the President as a Security Council document
( S/8289) :12
"As regards document S /8053 / Add.3, 12 brought to
the attention of the Security Council, the members,
recalling the consensus reached at its 1366th meeting
on 9 July 1967, recognize the necessity of the enlargement
by the Secretary-General of the number of
observers in the Suez Canal zone and the provision
of additional technical material and means of transportation."
THE CYPRUS QUESTION13
Decision
At its 1362nd meeting, on 19 June 1%7, the Council
decided to invite the representatives of Cyprus, Turkey
and Greece to participate, without vote, in the discussion
of the item entitled "Letter dated 26 December
1%3 from the Permanent Representative of Cyprus
addressed to the President of the Security Council
(S/5488) :14 report of the Secretary-General on the
United Nations Operation in Cyprus (S/7%9)".111
12 Ibid.
13 Resolutions or decisions on this question were also adopted
in 1963, 1964, 1965 and 1966.
14 S~ Official Records of the Security Council, Eighteenth
Year, Supplement for October, November and December 1963.
111 Jbid., Twenty-second Year, Supplement for April, May
and lune 1967.
9
des mesures comprenant la creation de zones demilitarisees;
3. Prie le Secretaire general de designer Utt representant
special pour se rendre au Moyen-Orient afin
d'y etablir et d'y maintenir des rapports avec les Etats
interesses en vue de favoriser un accord et de seconder
Jes efforts tendant a aboutir a un reglement pacifique
et accepte, conformement aux dispositions et aux principes
de la presente resolution;
4. Prie le Secretaire general de presenter aussitot
que possible au Conseil de securite un rapport d'activite
sur les efforts CU representant special.
Adoptee a l'unanimite a la
13826 seance.
Decision
Le 8 decembre 1967, le President a fait distribuer,
en tant que document du Conseil ( S/828912
), la declaration
ci-apres qui refletait l'avis des membres du
Conseil :
"En ce qui concerne le document S/8053/ Add.312
,
soumis a !'attention du Conseil de securite, Jes membres
de celui--ci, rappelant le consensus intervenu a
sa 1366• seance, le 9 juillet 1%7, reconnaissent la
necessite de l'accroissement, par le Secretaire general,
du nombre des observateurs clans le secteur du canal
de Suez et de la mise a la disposition de ceux-{:i de
materiel technique et de moyens de transport supplementaires."
LA QUESTION DE CHYPRE13
Decision
A sa 1362" seance, le 19 juin 1%7, le Conseil a
decide d'inviter les representant de Chypre, de la Turquie
et de la Grece a participer, sans droit de vote. a la discussion de la question intitulee "Lettre, en date
du 26 decembre ~963, adressee au President du Conseit
de securite par le representant permanent de Chypre
(S/548814
) : rapport du Secretaire general sur l'Operation
des Nations Unies a Chypre (S/7969111)".
12 Ibid.
18 Question ayant fait l'obiet de resolutions ou decisions de
la part du Conseii en 1963, 1964, 1965 et 1966.
14 Voir Documents officiels du Conseil de securite, disliuitieme
annee, Supplement d'octobre, 1t0T1embre et decembre
1963.
111 Jbid., vingt-deu.rieme annee, Supplement d'avril, mai d
juin 1967.
Annex 6
Security Council Resolution 338 (22 October 1973)

Annex 7
Declaration of Principles on Interim Self-Government Arrangements, 13
September 1993
UNITED NATIONS A S
General Assembly
Security Council
Distr.
GENERAL
A/48/486
S/26560
11 October 1993
ORIGINAL: ENGLISH
GENERAL ASSEMBLY SECURITY COUNCIL
Forty-eighth session Forty-eighth year
Agenda item 10
REPORT OF THE SECRETARY-GENERAL ON
THE WORK OF THE ORGANIZATION
Letter dated 8 October 1993 from the Permanent Representatives
of the Russian Federation and the United States of America to
the United Nations addressed to the Secretary-General
As co-sponsors of the peace process launched at Madrid in October 1991 and
witnesses to the signing at Washington, D.C., on 13 September 1993 of the
Declaration of Principles on Interim Self-Government Arrangements, including its
Annexes, and its Agreed Minutes, by the Government of the State of Israel and
the Palestine Liberation Organization, we have the honour to enclose the above
document (see annex).
We would be grateful if you would have the present letter and its
attachment circulated as an official document of the forty-eighth session of the
General Assembly, under agenda item 10, and of the Security Council.
(Signed) Madeleine K. ALBRIGHT (Signed) Yuliy M. VORONTSOV
Ambassador Ambassador
Permanent Representative Permanent Representative
to the United Nations of the to the United Nations of
United States of America the Russian Federation
93-54838 (E) 121093 /...
A/48/486
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Letter dated 8 October 1993 from the Permanent
Representative of Israel to the United Nations
addressed to the Secretary-General
I have the honour to enclose the Declaration of Principles on Interim Self-
Government Arrangements, including its Annexes, and its Agreed Minutes, signed
at Washington, D.C., on 13 September 1993 by the Government of the State of
Israel and the Palestine Liberation Organization and witnessed by the United
States of America and the Russian Federation (see annex).
I would be grateful if you would have the present letter and its attachment
circulated as an official document of the forty-eighth session of the General
Assembly, under agenda item 10, and of the Security Council.
(Signed) Gad YAACOBI
Ambassador
Permanent Representative
/...
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Letter dated 8 October 1993 from the Permanent
Observer of Palestine to the United Nations
addressed to the Secretary-General
I have the honour to enclose the Declaration of Principles on Interim Self-
Government Arrangements, including its Annexes, and its Agreed Minutes, signed
at Washington, D.C., on 13 September 1993 by the Government of the State of
Israel and the Palestine Liberation Organization and witnessed by the United
States of America and the Russian Federation (see annex).
I would be grateful if you would have the present letter and its attachment
circulated as an official document of the forty-eighth session of the General
Assembly, under agenda item 10, and of the Security Council.
(Signed) Dr. Nasser AL-KIDWA
Permanent Observer of Palestine
to the United Nations
/...
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ANNEX
Declaration of Principles on Interim
Self-Government Arrangements
The Government of the State of Israel and the PLO team (in the Jordanian-
Palestinian delegation to the Middle East Peace Conference) (the "Palestinian
Delegation"), representing the Palestinian people, agree that it is time to put
an end to decades of confrontation and conflict, recognize their mutual
legitimate and political rights, and strive to live in peaceful coexistence and
mutual dignity and security and achieve a just, lasting and comprehensive peace
settlement and historic reconciliation through the agreed political process.
Accordingly, the two sides agree to the following principles:
Article I
AIM OF THE NEGOTIATIONS
The aim of the Israeli-Palestinian negotiations within the current Middle
East peace process is, among other things, to establish a Palestinian Interim
Self-Government Authority, the elected Council (the "Council"), for the
Palestinian people in the West Bank and the Gaza Strip, for a transitional
period not exceeding five years, leading to a permanent settlement based on
Security Council resolutions 242 (1967) and 338 (1973). It is understood that
the interim arrangements are an integral part of the whole peace process and
that the negotiations on the permanent status will lead to the implementation of
Security Council resolutions 242 (1967) and 338 (1973).
Article II
FRAMEWORK FOR THE INTERIM PERIOD
The agreed framework for the interim period is set forth in this
Declaration of Principles.
Article III
ELECTIONS
1. In order that the Palestinian people in the West Bank and Gaza Strip may
govern themselves according to democratic principles, direct, free and general
political elections will be held for the Council under agreed supervision and
international observation, while the Palestinian police will ensure public
order.
2. An agreement will be concluded on the exact mode and conditions of the
elections in accordance with the protocol attached as Annex I, with the goal of
holding the elections not later than nine months after the entry into force of
this Declaration of Principles.
/...
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3. These elections will constitute a significant interim preparatory step
toward the realization of the legitimate rights of the Palestinian people and
their just requirements.
Article IV
JURISDICTION
Jurisdiction of the Council will cover West Bank and Gaza Strip territory,
except for issues that will be negotiated in the permanent status negotiations.
The two sides view the West Bank and the Gaza Strip as a single territorial
unit, whose integrity will be preserved during the interim period.
Article V
TRANSITIONAL PERIOD AND PERMANENT STATUS NEGOTIATIONS
1. The five-year transitional period will begin upon the withdrawal from the
Gaza Strip and Jericho area.
2. Permanent status negotiations will commence as soon as possible, but not
later than the beginning of the third year of the interim period, between the
Government of Israel and the Palestinian people’s representatives.
3. It is understood that these negotiations shall cover remaining issues,
including: Jerusalem, refugees, settlements, security arrangements, borders,
relations and cooperation with other neighbours, and other issues of common
interest.
4. The two parties agree that the outcome of the permanent status negotiations
should not be prejudiced or preempted by agreements reached for the interim
period.
Article VI
PREPARATORY TRANSFER OF POWERS AND RESPONSIBILITIES
1. Upon the entry into force of this Declaration of Principles and the
withdrawal from the Gaza Strip and the Jericho area, a transfer of authority
from the Israeli military government and its Civil Administration to the
authorized Palestinians for this task, as detailed herein, will commence. This
transfer of authority will be of a preparatory nature until the inauguration of
the Council.
2. Immediately after the entry into force of this Declaration of Principles
and the withdrawal from the Gaza Strip and Jericho area, with the view to
promoting economic development in the West Bank and Gaza Strip, authority will
be transferred to the Palestinians in the following spheres: education and
culture, health, social welfare, direct taxation and tourism. The Palestinian
side will commence in building the Palestinian police force, as agreed upon.
/...
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Pending the inauguration of the Council, the two parties may negotiate the
transfer of additional powers and responsibilities, as agreed upon.
Article VII
INTERIM AGREEMENT
1. The Israeli and Palestinian delegations will negotiate an agreement on the
interim period (the "Interim Agreement").
2. The Interim Agreement shall specify, among other things, the structure of
the Council, the number of its members, and the transfer of powers and
responsibilities from the Israeli military government and its Civil
Administration to the Council. The Interim Agreement shall also specify the
Council’s executive authority, legislative authority in accordance with
Article IX below, and the independent Palestinian judicial organs.
3. The Interim Agreement shall include arrangements, to be implemented upon
the inauguration of the Council, for the assumption by the Council of all of the
powers and responsibilities transferred previously in accordance with Article VI
above.
4. In order to enable the Council to promote economic growth, upon its
inauguration, the Council will establish, among other things, a Palestinian
Electricity Authority, a Gaza Sea Port Authority, a Palestinian Development
Bank, a Palestinian Export Promotion Board, a Palestinian Environmental
Authority, a Palestinian Land Authority and a Palestinian Water Administration
Authority and any other Authorities agreed upon, in accordance with the Interim
Agreement, that will specify their powers and responsibilities.
5. After the inauguration of the Council, the Civil Administration will be
dissolved, and the Israeli military government will be withdrawn.
Article VIII
PUBLIC ORDER AND SECURITY
In order to guarantee public order and internal security for the
Palestinians of the West Bank and the Gaza Strip, the Council will establish a
strong police force, while Israel will continue to carry the responsibility for
defending against external threats, as well as the responsibility for overall
security of Israelis for the purpose of safeguarding their internal security and
public order.
Article IX
LAWS AND MILITARY ORDERS
1. The Council will be empowered to legislate, in accordance with the Interim
Agreement, within all authorities transferred to it.
/...
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2. Both parties will review jointly laws and military orders presently in
force in remaining spheres.
Article X
JOINT ISRAELI-PALESTINIAN LIAISON COMMITTEE
In order to provide for a smooth implementation of this Declaration of
Principles and any subsequent agreements pertaining to the interim period, upon
the entry into force of this Declaration of Principles, a Joint Israeli-
Palestinian Liaison Committee will be established in order to deal with issues
requiring coordination, other issues of common interest and disputes.
Article XI
ISRAELI-PALESTINIAN COOPERATION IN ECONOMIC FIELDS
Recognizing the mutual benefit of cooperation in promoting the development
of the West Bank, the Gaza Strip and Israel, upon the entry into force of this
Declaration of Principles, an Israeli-Palestinian Economic Cooperation Committee
will be established in order to develop and implement in a cooperative manner
the programmes identified in the protocols attached as Annex III and Annex IV.
Article XII
LIAISON AND COOPERATION WITH JORDAN AND EGYPT
The two parties will invite the Governments of Jordan and Egypt to
participate in establishing further liaison and cooperation arrangements between
the Government of Israel and the Palestinian representatives, on the one hand,
and the Governments of Jordan and Egypt, on the other hand, to promote
cooperation between them. These arrangements will include the constitution of a
Continuing Committee that will decide by agreement on the modalities of
admission of persons displaced from the West Bank and Gaza Strip in 1967,
together with necessary measures to prevent disruption and disorder. Other
matters of common concern will be dealt with by this Committee.
Article XIII
REDEPLOYMENT OF ISRAELI FORCES
1. After the entry into force of this Declaration of Principles, and not later
than the eve of elections for the Council, a redeployment of Israeli military
forces in the West Bank and the Gaza Strip will take place, in addition to
withdrawal of Israeli forces carried out in accordance with Article XIV.
2. In redeploying its military forces, Israel will be guided by the principle
that its military forces should be redeployed outside populated areas.
/...
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3. Further redeployments to specified locations will be gradually implemented
commensurate with the assumption of responsibility for public order and internal
security by the Palestinian police force pursuant to Article VIII above.
Article XIV
ISRAELI WITHDRAWAL FROM THE GAZA STRIP AND JERICHO AREA
Israel will withdraw from the Gaza Strip and Jericho area, as detailed in
the protocol attached as Annex II.
Article XV
RESOLUTION OF DISPUTES
1. Disputes arising out of the application or interpretation of this
Declaration of Principles, or any subsequent agreements pertaining to the
interim period, shall be resolved by negotiations through the Joint Liaison
Committee to be established pursuant to Article X above.
2. Disputes which cannot be settled by negotiations may be resolved by a
mechanism of conciliation to be agreed upon by the parties.
3. The parties may agree to submit to arbitration disputes relating to the
interim period, which cannot be settled through conciliation. To this end, upon
the agreement of both parties, the parties will establish an Arbitration
Committee.
Article XVI
ISRAELI-PALESTINIAN COOPERATION CONCERNING REGIONAL PROGRAMMES
Both parties view the multilateral working groups as an appropriate
instrument for promoting a "Marshall Plan", the regional programmes and other
programmes, including special programmes for the West Bank and Gaza Strip, as
indicated in the protocol attached as Annex IV.
Article XVII
MISCELLANEOUS PROVISIONS
1. This Declaration of Principles will enter into force one month after its
signing.
2. All protocols annexed to this Declaration of Principles and Agreed Minutes
pertaining thereto shall be regarded as an integral part hereof.
/...
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DONE at Washington, D.C., this thirteenth day of September 1993.
For the Government of Israel: For the PLO:
(Signed) Shimon PERES (Signed) Mahmud ABBAS
Witnessed By:
The United States of America The Russian Federation
(Signed) Warren CHRISTOPHER (Signed) Andrei V. KOZYREV
/...
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ANNEX I
Protocol on the Mode and Conditions of Elections
1. Palestinians of Jerusalem who live there will have the right to participate
in the election process, according to an agreement between the two sides.
2. In addition, the election agreement should cover, among other things, the
following issues:
(a) The system of elections;
(b) The mode of the agreed supervision and international observation and
their personal composition;
(c) Rules and regulations regarding election campaigns, including agreed
arrangements for the organizing of mass media, and the possibility of licensing
a broadcasting and television station.
3. The future status of displaced Palestinians who were registered on
4 June 1967 will not be prejudiced because they are unable to participate in the
election process owing to practical reasons.
/...
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ANNEX II
Protocol on Withdrawal of Israeli Forces
from the Gaza Strip and Jericho Area
1. The two sides will conclude and sign within two months from the date of
entry into force of this Declaration of Principles an agreement on the
withdrawal of Israeli military forces from the Gaza Strip and Jericho area.
This agreement will include comprehensive arrangements to apply in the Gaza
Strip and the Jericho area subsequent to the Israeli withdrawal.
2. Israel will implement an accelerated and scheduled withdrawal of Israeli
military forces from the Gaza Strip and Jericho area, beginning immediately with
the signing of the agreement on the Gaza Strip and Jericho area and to be
completed within a period not exceeding four months after the signing of this
agreement.
3. The above agreement will include, among other things:
(a) Arrangements for a smooth and peaceful transfer of authority from the
Israeli military government and its Civil Administration to the Palestinian
representatives;
(b) Structure, powers and responsibilities of the Palestinian authority in
these areas, except: external security, settlements, Israelis, foreign
relations and other mutually agreed matters;
(c) Arrangements for the assumption of internal security and public order
by the Palestinian police force consisting of police officers recruited locally
and from abroad (holding Jordanian passports and Palestinian documents issued by
Egypt). Those who will participate in the Palestinian police force coming from
abroad should be trained as police and police officers;
(d) A temporary international or foreign presence, as agreed upon;
(e) Establishment of a joint Palestinian-Israeli Coordination and
Cooperation Committee for mutual security purposes;
(f) An economic development and stabilization programme including the
establishment of an Emergency Fund, to encourage foreign investment and
financial and economic support. Both sides will coordinate and cooperate
jointly and unilaterally with regional and international parties to support
these aims;
(g) Arrangements for a safe passage for persons and transportation between
the Gaza Strip and Jericho area.
/...
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4. The above agreement will include arrangements for coordination between both
parties regarding passages:
(a) Gaza - Egypt;
(b) Jericho - Jordan.
5. The offices responsible for carrying out the powers and responsibilities of
the Palestinian authority under this Annex II and Article VI of the Declaration
of Principles will be located in the Gaza Strip and in the Jericho area pending
the inauguration of the Council.
6. Other than these agreed arrangements, the status of the Gaza Strip and
Jericho area will continue to be an integral part of the West Bank and Gaza
Strip, and will not be changed in the interim period.
/...
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ANNEX III
Protocol on Israeli-Palestinian Cooperation
in Economic and Development Programmes
The two sides agree to establish an Israeli-Palestinian Continuing
Committee for Economic Cooperation, focusing, among other things, on the
following:
1. Cooperation in the field of water, including a Water Development Programme
prepared by experts from both sides, which will also specify the mode of
cooperation in the management of water resources in the West Bank and Gaza
Strip, and will include proposals for studies and plans on water rights of each
party, as well as on the equitable utilization of joint water resources for
implementation in and beyond the interim period.
2. Cooperation in the field of electricity, including an Electricity
Development Programme, which will also specify the mode of cooperation for the
production, maintenance, purchase and sale of electricity resources.
3. Cooperation in the field of energy, including an Energy Development
Programme, which will provide for the exploitation of oil and gas for industrial
purposes, particularly in the Gaza Strip and in the Negev, and will encourage
further joint exploitation of other energy resources. This Programme may also
provide for the construction of a petrochemical industrial complex in the Gaza
Strip and the construction of oil and gas pipelines.
4. Cooperation in the field of finance, including a Financial Development and
Action Programme for the encouragement of international investment in the West
Bank and the Gaza Strip, and in Israel, as well as the establishment of a
Palestinian Development Bank.
5. Cooperation in the field of transport and communications, including a
Programme, which will define guidelines for the establishment of a Gaza Sea Port
Area, and will provide for the establishing of transport and communications
lines to and from the West Bank and the Gaza Strip to Israel and to other
countries. In addition, this Programme will provide for carrying out the
necessary construction of roads, railways, communications lines, etc.
6. Cooperation in the field of trade, including studies, and Trade Promotion
Programmes, which will encourage local, regional and interregional trade, as
well as a feasibility study of creating free trade zones in the Gaza Strip and
in Israel, mutual access to these zones and cooperation in other areas related
to trade and commerce.
7. Cooperation in the field of industry, including Industrial Development
Programmes, which will provide for the establishment of joint Israeli-
Palestinian Industrial Research and Development Centres, will promote
Palestinian-Israeli joint ventures, and provide guidelines for cooperation in
the textile, food, pharmaceutical, electronics, diamonds, computer and sciencebased
industries.
/...
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8. A Programme for cooperation in, and regulation of, labour relations and
cooperation in social welfare issues.
9. A Human Resource Development and Cooperation Plan, providing for joint
Israeli-Palestinian workshops and seminars, and for the establishment of joint
vocational training centres, research institutes and data banks.
10. An Environmental Protection Plan, providing for joint and/or coordinated
measures in this sphere.
11. A Programme for developing coordination and cooperation in the field of
communications and media.
12. Any other programmes of mutual interest.
/...
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ANNEX IV
Protocol on Israeli-Palestinian Cooperation
concerning Regional Development Programmes
1. The two sides will cooperate in the context of the multilateral peace
efforts in promoting a Development Programme for the region, including the West
Bank and the Gaza Strip, to be initiated by the Group of Seven. The parties
will request the Group of Seven to seek the participation in this Programme of
other interested States, such as members of the Organisation for Economic
Cooperation and Development, regional Arab States and institutions, as well as
members of the private sector.
2. The Development Programme will consist of two elements:
(a) An Economic Development Programme for the West Bank and the Gaza
Strip;
(b) A Regional Economic Development Programme.
A. The Economic Development Programme for the West Bank and the Gaza
Strip will consist of the following elements:
(1) A Social Rehabilitation Programme, including a Housing and
Construction Programme;
(2) A Small and Medium Business Development Plan;
(3) An Infrastructure Development Programme (water, electricity,
transportation and communications, etc.);
(4) A Human Resources Plan;
(5) Other programmes.
B. The Regional Economic Development Programme may consist of the
following elements:
(1) The establishment of a Middle East Development Fund, as a first
step, and a Middle East Development Bank, as a second step;
(2) The development of a joint Israeli-Palestinian-Jordanian Plan for
coordinated exploitation of the Dead Sea area;
(3) The Mediterranean Sea (Gaza) - Dead Sea Canal;
(4) Regional desalinization and other water development projects;
(5) A regional plan for agricultural development, including a
coordinated regional effort for the prevention of
desertification;
/...
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(6) Interconnection of electricity grids;
(7) Regional cooperation for the transfer, distribution and
industrial exploitation of gas, oil and other energy resources;
(8) A Regional Tourism, Transportation and Telecommunications
Development Plan;
(9) Regional cooperation in other spheres.
3. The two sides will encourage the multilateral working groups and will
coordinate towards their success. The two parties will encourage
inter-sessional activities, as well as pre-feasibility and feasibility studies,
within the various multilateral working groups.
/...
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Agreed Minutes to the Declaration of Principles
on Interim Self-Government Arrangements
A. GENERAL UNDERSTANDINGS AND AGREEMENTS
Any powers and responsibilities transferred to the Palestinians pursuant to
the Declaration of Principles prior to the inauguration of the Council will be
subject to the same principles pertaining to Article IV, as set out in these
Agreed Minutes below.
B. SPECIFIC UNDERSTANDINGS AND AGREEMENTS
Article IV
It is understood that:
1. Jurisdiction of the Council will cover West Bank and Gaza Strip territory,
except for issues that will be negotiated in the permanent status negotiations:
Jerusalem, settlements, military locations and Israelis.
2. The Council’s jurisdiction will apply with regard to the agreed powers,
responsibilities, spheres and authorities transferred to it.
Article VI (2)
It is agreed that the transfer of authority will be as follows:
1. The Palestinian side will inform the Israeli side of the names of the
authorized Palestinians who will assume the powers, authorities and
responsibilities that will be transferred to the Palestinians according to the
Declaration of Principles in the following fields: education and culture,
health, social welfare, direct taxation, tourism and any other authorities
agreed upon.
2. It is understood that the rights and obligations of these offices will not
be affected.
3. Each of the spheres described above will continue to enjoy existing
budgetary allocations in accordance with arrangements to be mutually agreed
upon. These arrangements also will provide for the necessary adjustments
required in order to take into account the taxes collected by the direct
taxation office.
4. Upon the execution of the Declaration of Principles, the Israeli and
Palestinian delegations will immediately commence negotiations on a detailed
plan for the transfer of authority on the above offices in accordance with the
above understandings.
/...
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Article VII (2)
The Interim Agreement will also include arrangements for coordination and
cooperation.
Article VII (5)
The withdrawal of the military government will not prevent Israel from
exercising the powers and responsibilities not transferred to the Council.
Article VIII
It is understood that the Interim Agreement will include arrangements for
cooperation and coordination between the two parties in this regard. It is also
agreed that the transfer of powers and responsibilities to the Palestinian
police will be accomplished in a phased manner, as agreed in the Interim
Agreement.
Article X
It is agreed that, upon the entry into force of the Declaration of
Principles, the Israeli and Palestinian delegations will exchange the names of
the individuals designated by them as members of the Joint Israeli-Palestinian
Liaison Committee. It is further agreed that each side will have an equal
number of members in the Joint Committee. The Joint Committee will reach
decisions by agreement. The Joint Committee may add other technicians and
experts, as necessary. The Joint Committee will decide on the frequency and
place or places of its meetings.
ANNEX II
It is understood that, subsequent to the Israeli withdrawal, Israel will
continue to be responsible for external security, and for internal security and
public order of settlements and Israelis. Israeli military forces and civilians
may continue to use roads freely within the Gaza Strip and the Jericho area.
DONE at Washington, D.C., this thirteenth day of September 1993.
For the Government of Israel: For the PLO:
(Signed) Shimon PERES (Signed) Mahmud ABBAS
Witnessed By:
The United States of America The Russian Federation
(Signed) Warren CHRISTOPHER (Signed) Andrei V. KOZYREV
-----
Annex 8
Interim Agreement on the West Bank and the Gaza Strip, 28 September
1995
UNITED
NATIONS AS
General Assembly
Security Council
Distr.
GENERAL
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ORIGINAL: ENGLISH
GENERAL ASSEMBLY
Fifty-first session
Agenda item 10
REPORT OF THE SECRETARY-GENERAL
ON THE WORK OF THE ORGANIZATION
SECURITY COUNCIL
Fifty-second year
Letter dated 27 December 1995 from the Permanent Representatives
of the Russian Federation and the United States of America to
the United Nations addressed to the Secretary-General
As co-sponsors of the peace process launched at Madrid in October 1991, and
witnesses to the signing at Washington, D.C., on 28 September 1995, of the
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, by
the Government of Israel and the Palestine Liberation Organization, we have the
honour to enclose the above document (see annex).
We would be grateful if you would have the present letter and its
attachment circulated as an official document of the General Assembly, under
agenda item 10, and of the Security Council.
(Signed) Madeleine K. ALBRIGHT
Ambassador
Permanent Representative
of the United States of
America to the United Nations
(Signed) Sergey V. LAVROV
Ambassador
Permanent Representative
of the Russian Federation
to the United Nations
230797 /...
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Letter dated 28 December 1995 from the Permanent Representative of
Israel to the United Hations addressed to the Secretary-General
I have the honour to enclose the Israeli-Palestinian Interim Agreement on
the West Bank and the Gaza Strip, signed at Washington, D.C., on
28 September 1995, by the Government of the State of Israel and the Palestine
Liberation Organization and witnessed by the United States of America, the
Russian Federation, Egypt, Jordan, Norway and the European Union (see annex).
I would be grateful if you would have the present letter and its attachment
circulated as an official document of the General Assembly, under agenda
item 10, and of the Security Council.
(Signed) Gad YAACOBI
Ambassador
Permanent Representative of
Israel to the United Nations
/...
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Letter dated 19 December 1995 from the Permanent Observer
of Palestine to the United Nations addressed to the
Secretary-General
I have the honour to enclose the Israeli-Palestinian Interim Agreement on
the West Bank and the Gaza Strip, signed at Washington, D.C., on
28 September 1995, by the Government of the State of Israel and the Palestine
Liberation Organization and witnessed by the United States of America, the
Russian Federation, Egypt, Jordan, Norway and the European Union (see annex).
I would be grateful if you would have the present letter and its attachment
circulated as an official document of the General Assembly, under agenda
item 10, and of the Security Council.
(Signed) Dr. Nasser AL-KIDWA
Permanent Observer of
Palestine to the United Nations
/....

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ANNEX
Israeli-Palestinian Interim Agreement on the West Bank
and the Gaza Strip*
Washington. D.C., 28 September 1995
* The original annexes to the Agreement, including the maps, have been
placed in the Treaty Section of the Office of Legal Affairs, and are available
for consultation by interested Member States.
/...
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INPEX
PREAMBLE .... „ 8
CWAPTF.R i - THE coirNcn,
ARTICLE I Transfer of Authority ... , 10
ARTICLE II Elections . 11
ARTICLE IP Structure of the Palestinian Council 11
ARTICLE IV Size of the Council . .'. .... 12
ARTICLE V The Executive Authority of the Council ........... 13
ARTICLE VI Other Committees of the Council... . 13
ARTICLE VII Open Government 14
ARTICLE VHI Judicial Review „. 14
ARTICLE IX Powers and Responsibilities of the Council .... 14
CHAPTFR 1 - BF,T>FT>T,OVMF.NT ANtt SFCTTRTTY ARRANGElVfENTS
ARTICLE X Redeployment of Israeli Military Forces 16
ARTICLE XI Land . 16
ARTICLE XII Arrangements for Security and Public Order.........„„„... 18
ARTTCT.F, XTV The Palestinian Police —...* 20
ARTICLE XV Prevention of Hostile Acts «—....... .. 20
ARTICLE XVI Confidence Building Measures.™........................^......... 21
CHAlTirP a - 1.V.GA1. AFFAIRS
ARTICLE XVTI Jurisdiction 21
ARTICLE XVin Legislative Powers of the Council . . 23
/ . . .
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ARTICLE XIX Human Rights and the Rule of Law 24
ARTICLE XX Rights, Liabilities and Obligations 24
ARTICLE XXI Settlement of Differences and Disputes 25
CHAPTER 4 - COOPERATION
ARTICLE XXII Relations between Israel and the Council 26
ARTICLE XXJJJ Cooperation with Regard to Transfer of Powers and
Responsibilities 26
ARTICLE XXTV Economic Relations 27
ARTICLE XXV Cooperation Programs 27
ARTICLE XXVI The Joint Israeli-Palestinian Liaison Committee.. 27
ARTICLE XXVII Liaison and Cooperation with Jordan and Egypt 28
ARTICLE XXVTJJ Missing Persons 28
rHAPTVR S • MTSCV.T.LANTT.OTTS PROVTSTONS
ARTICLE XXTX Safe Passage between the West Bank and the Gaza Strip 29
ARTICLE XXX Passages 29
ARTICLE XXXI Final Clauses 29
/ . . .
The Government of the State of Israel* and the Palestine Liberation
Organization (hereinafter "the PLO"), the representative of the
Palestinian people;
PREAMBLE
WITHIN
REAFFIRMING
REAFFIRMING
RECOGNIZING
RECOGNIZING
REAFFIRMING
the framework of the Middle East peace process initiated at
Madrid in October 1991;
their determination to put an end to decades of confrontation
and to live in peaceful coexistence, mutual dignity and security,
while recognizing their mutual legitimate and political rights;
their desire to achieve a just, lasting and comprehensive peace
settlement and historic reconciliation through the agreted political
process;
that the peace process and the new era that it has created, as
well as the new relationship established between the two Parties
as described above, are irreversible, and the determination of the
two Parties to maintain, sustain and continue the peace process;
that the aim of the Israeli-Palestinian negotiations within the
current Middle East peace process is, among other things, to
establish a Palestinian Interim Self-Government Authority, i.e.
the elected Council (hereinafter "the Council" or "the Palestinian
Council"), and the elected Ra'ees of the Executive Authority,
for the Palestinian people in the West Bank and the Gaza Strip,
for a transitional period not exceeding five years from the date
of signing the Agreement on the Gaza Strip and the Jericho Area
(hereinafter "the Gaza-Jericho Agreement") on May 4, 1994,
leading to a permanent settlement based on Security Council
Resolutions 242 and 338;
their understanding that the interim self-government
arrangements contained in this Agreement are an integral part of
the whole peace process, that the negotiations on the permanent
status, that will start as soon as possible but not later than May
4, 1996, will lead to the implementation of Security Council
Resolutions 242 and 338, and that the Interim Agreement shall
settle all the issues of the interim period and that no such issues
will be deferred to the agenda of the permanent status
negotiations;
REAFFIRMING their adherence to the mutual recognition and commitments
expressed in the letters dated September 9, 1993, signed by and
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exchanged between the Prime Minister of Israel and the
Chairman of the PLO;
DESIROUS
RECOGNIZING
REAFFIRMING
FOLLOWING
of putting into effect the Declaration of Principles on Interim
Self-Government Arrangements signed at Washington, DC on
September 13, 1993, and the Agreed Minutes thereto
(hereinafter "the DOP") and in particular Article IH and Annex I
concerning the holding of direct, free and general political
elections for the Council and the Ra'ees of the Executive
Authority in order that the Palestinian people in the West Bank,
Jerusalem and the Gaza Strip may democratically elect
accountable representatives;
that these elections will constitute a significant interim
preparatory step toward the realization of the legitimate rights of
the Palestinian people and their just requirements and will
provide a democratic basis for the establishment of Palestinian
institutions;
their mutual commitment to act, in accordance with this
Agreement, immediately, efficiently and effectively against acts
or threats of terrorism, violence or incitement, whether
committed by Palestinians or Israelis;
the Gaza-Jericho Agreement; the Agreement on Preparatory
Transfer of Powers and Responsibilities signed at Erez on
August 29, 1994 (hereinafter "the Preparatory Transfer
Agreement"); and the Protocol on Further Transfer of Powers
and Responsibilities signed at Cairo on August 27, 1995
(hereinafter "the Further Transfer Protocol"); which three
agreements will be superseded by this Agreement;
HEREBY AGREE as follows:
/ . . .
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CHAPTER 1 - THE CQWCIL
ARTICLE I
Transfer of Authority
7.
Israel shall transfer powers and responsibilities as specified in this Agreement
from die Israeli military government and its Civil Administration to the Council
in accordance with this Agreement. Israel shall continue to exercise powers and
responsibilities not so transferred.
Pending the inauguration of the Council, the powers and responsibilities
transferred to the Council shall be exercised by the Palestinian Authority
established in accordance with the Gaza-Jericho Agreement, which shail also
have ail the rights, liabilities and obligations to be assumed by the Council in this
regard. Accordingly, the term "Council" throughout this Agreement shail,
pending the inauguration of the Council, be construed as meaning the Palestinian
Authority.
The transfer of powers and responsibilities to the police force established by the
Palestinian Council in accordance with Article XTV below (hereinafter "the
Palestinian Police") shall be accomplished in a phased manner, as detailed in this
Agreement and in the Protocol concerning Redeployment and Security
Arrangements attached as Annex I to this Agreement (hereinafter "Annex I").
As regards ±e transfer and assumption of authority in civil spheres, powers and
responsibilities shall be transferred and assumed as set out in the Protocol
Concerning Civil Affairs attached as Annex LEI to this Agreement (hereinafter
"Annex lit").
After the inauguration of the Council, the Civil Administration in the West Bank
will be dissolved, and the Israeli military government shail be withdrawn. The
withdrawal of the military government shall not prevent it from exercising the
powers and responsibilities not transferred to the Council.
A Joint Civil Affairs Coordination and Cooperation Committee (hereinafter "the
CAC"), Joint Regional Civil Affairs Subcommittees, one for the Gaza Strip and
the other for the West Bank, and District Civil Liaison Offices in the West Bank
shall be established in order to provide for coordination and cooperation in civil
affairs between the Council and Israel, as detailed in Annex HI.
*
The offices of the Council, and the offices of its Ra'ees and its Executive
Authority and other committees, shall be located in areas under Palestinian
territorial jurisdiction in the West Bank and the Gaza Strip.
/ . . .
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ARTICLE II
Elections
1. In order that the Palestinian people of the West Bank and the Gaza Strip may
govern themselves according to democratic principles, direct, free and general
political elections will be held for the Council and the Ra'ees of the Executive
Authority of the Council in accordance with the provisions set out in the
Protocol concerning Elections attached as Annex II to this Agreement
(hereinafter "Annex IT).
2. These elections will constitute a significant interim preparatory step towards the
realization of the legitimate rights' of the Palestinian people and their just
requirements and will provide a democratic basis for the establishment of
Palestinian institutions.
3. Palestinians of Jerusalem who live there may participate in the election process in
accordance with the provisions contained in this Article and in Article VI of
Annex II (Election Arrangements concerning Jerusalem).
4. The elections shall be called by the Chairman of the Palestinian Authority
immediately following the signing of this Agreement to take place at the earliest
practicable date following the redeployment of Israeli forces in accordance with
Annex I, and consistent with the requirements of the election timetable as
provided in Annex II the Election Law and the Election Regulations, as defined
in Article I of Annex TJ.
ARTICLE m
Structure of the Palestinian Council
The Palestinian Council and the Ra'ees of the Executive Authority of the Council
constitute the Palestinian Interim Self-Govemment Authority, which will be
elected by the Palestinian people of the West Bank, Jerusalem and the Gaza Strip
for the transitional period agreed in Article I of the DOP.
The Council shall possess both legislative power and executive power, in
accordance with Articles VII and DC of the DOP. The Council shall carry out and
be responsible for all the legislative and executive powers and responsibilities
transferred to it under this Agreement. The exercise of legislative powers shall be
in accordance with Article XVUI of this Agreement (Legislative Powers of the
Council).
The Council and the Ra'ees of the Executive Authority of the Council shall be
directly and simultaneously elected by the Palestinian people of the West Bank,
Jerusalem and the Gaza Strip, in accordance with the provisions of this
/ . . .
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Agreement and the Election Law and Regulations, which shall not be contrary to
the provisions of this Agreement.
4. The Council and the Ra'ees of the Executive Authority of the Council shall be
elected for a transitional period not exceeding five years from the signing of the
Gaza-Jericho Agreement on May 4, 1994.
5. Immediately upon its inauguration, the Council will elect from among its
members a Speaker. The Speaker will preside over the meetings of the Council,
administer the Council and its committees, decide on the agenda of each meeting,
and lay before the Council proposals for voting and declare their results.
6. The jurisdiction of the Council shall be as determined in Article XVTI of this
Agreement (Jurisdiction).
7. The organization, structure and functioning of the Council shall be in accordance
with this Agreement and the Basic Law for the Palestinian Interim Seif-
Government Authority, which Law shall be adopted by the Council. The Basic
Law and any regulations made under it shall not be contrary to the provisions of
this Agreement.
3. The Council shall be responsible under its executive powers for the offices,
services and departments transferred to it and may establish, within its
jurisdiction, ministries and subordinate bodies, as necessary for the fulfillment of
its responsibilities.
9. The Speaker will present for- the Council's approval proposed internal
procedures that will regulate, among other things, the decision-making processes
of the Council.
ARTICLE IV
Size of the Council
The Palestinian Council shall be composed of 32 representatives and the Ra'ees of the
Executive Authority, who will be directly and simultaneously elected by the Palestinian
people of the West Bank, Jerusalem and the Gaza Strip.
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ARTICLE V
The Executive Authority of the Council
1. The Council will have a committee that will exercise the executive authority of
the Council, formed in accordance with paragraph 4 below (hereinafter "the
Executive Authority").
2. The Executive Authority shall be bestowed with the executive authority of the
Council and will exercise it on behalf of the Council. It shall determine its own
internal procedures and decision making processes.
3. The Council will publish the names of the members of the Executive Authority
immediately upon their initial appointment and subsequent to any changes.
4. a. The Ra'ees of the Executive Authority shall be an ex officio member of the
Executive Authority.
b. All of the other members of the Executive Authority, except as provided in
subparagraph c. below, shall be members of the Council, chosen and
proposed to the Council by the Ra'ees of the Executive Authority and
approved by the Council.
c. The Ra'ees of the Executive Authority shall have the right to appoint some
persons, in number not exceeding twenty percent of the total membership
of the Executive Authority, who are not members of the Council, to
exercise executive authority and participate in government tasks. Such
appointed members may not vote in meetings of the Council.
d. Non-elected members of the Executive Authority must have a valid address
in an area under the jurisdiction of the Council.
ARTICLE VI
Other Committees of the Council
1. The Council may form small committees to simplify the proceedings "of the
Council and to assist in controlling the activity of its Executive Authority.
2. Each committee shall establish its own decision-making processes within the
general framework of the organization and structure of the Council.
/ . . .
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ARTICLE VII
Open Government
1. All meetings of the Council and of its committees, other than the Executive
Authority, shall be open to the public, except upon a resolution of the Council or
the relevant committee on the grounds of security, or commercial or personal
confidentiality.
2. Participation in the deliberations of the Council, its committees and the Executive
Authority shall be limited to their respective members only. Experts may be
invited to such meetings to address specific issues on an ad hoc basis.
ARTICLE VIII
Judicial Review
Any person or organization affected by any act or decision of the Ra'ees of the
Executive Authority of the Council or of any member of the Executive Authority, who
believes that such act or decision exceeds the authority of the Ra'ees or of such
member, or is otherwise incorrect in law or procedure, may apply to the relevant
Palestinian Court of Justice for a review of such activity or decision.
ARTICLE IX
Powers and Responsibilities of the Council
1. Subject to the provisions of this Agreement, the Council will, within its
jurisdiction, have legislative powers as set out in Article XVIII of this
Agreement, as well as executive powers.
2. The executive power of the Palestinian Council shall extend to all matters within
its jurisdiction under this Agreement or any future agreement that may be
reached between the two Parties during the interim period. It shall include the
p"ower to formulate and conduct Palestinian policies and to supervise their
implementation, to issue any rule or regulation under powers given in approved
legislation and administrative decisions necessary for the realization of
Palestinian self-government, the power to employ staff, sue and be sued and
conclude contracts, and the power to keep and administer registers and records
of the population, and issue certificates, licenses and documents.
3. The Palestinian Council's executive decisions and acts shall be consistent with
the provisions of this Agreement. /
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4. The Palestinian Council may adopt all necessary measures in order to enforce the
law and any of its decisions, and bring proceedings before the Palestinian courts
and tribunals.
5. a. In accordance with the DOP, the" Council will not have powers and
responsibilities in the sphere of foreign relations, which sphere includes the
establishment abroad of embassies, consulates or other types of foreign
missions and posts or permitting their establishment in the West Bank or
the Gaza Strip, the appointment of or admission of diplomatic and consular
staff, and the exercise of diplomatic functions.
b. Notwithstanding the provisions of this paragraph, the PLO may conduct
negotiations and sign agreements with states or international organizations
for the benefit of the Council in the following cases only:
(1) economic agreements, as specifically provided in Annex V of this
Agreement;
(2) agreements with donor countries for the purpose of implementing
arrangements for the provision of assistance to the Council;
(3) agreements for the purpose of implementing the regional
development plans detailed in Annex IV of the DOP or in agreements
entered into in the framework of the multilateral negotiations; and
(4) cultural, scientific and educational agreements.
c. Dealings between the Council and representatives of foreign states and
international organizations, as well as the establishment in the West Bank
and the Gaza Strip of representative offices other than those described in
subparagraph 5.a above, for the purpose of implementing the agreements
referred to in subparagraph 5.b above, shall not be considered foreign
relations.
6. Subject to the provisions of this Agreement, the Council shall, within its
jurisdiction, have an independent judicial system composed of independent
Palestinian courts and tribunals.
/ . . .
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CHAPTER 2 - REDEPLOYMENT ANP sfrH WTY
ARRANGEMENTS
ARTICLE X
Redeployment of Israeli Military Forces
1. The first phase of the Israeli military forces redeployment will cover populated
areas in the West Bank - cities, towns, villages, refugee camps and hamlets - as
set out in Annex I, and will be completed prior to the eve of the Palestinian
elections, i.e., 22 days before the day of the elections.
2. Further redeployments of Israeli military forces to specified military locations will
commence after the inauguration of the Council and will be gradually
implemented commensurate with the assumption of responsibility for public
order and internal security by the Palestinian Police, to be completed within 18
months from the date of the inauguration of the Council as detailed in Articles XI
(Land) and XIII (Security), below and in Annex I.
3. The Palestinian Police shall be deployed and shall assume responsibility for public
order and internal security for Palestinians in a phased manner in accordance with
Article XIII (Security) below and Annex I.
4. Israel shall continue to carry the responsibility for external security, as well as the
responsibility for overall security of Israelis for the purpose of safeguarding their
internal security and public order.
5. For the purpose of this Agreement, "Israeli military forces" includes Israel Police
and other Israeli security forces.
ARTICLE XI
Land
1. The two sides view the West Bank and the Gaza Strip as a single territorial unit,
the integrity and status of which will be preserved during the interim period.
2. The two sides agree that West Bank and Gaza Strip territory, except for issues
that will be negotiated in the permanent status negotiations, will come under the
jurisdiction of the Palestinian Council in a phased manner, to be completed
within 18 months from the date of the inauguration of the Council, as specified
below:
a. Land in populated areas (Areas A and B), including government and Al
Waqf land, will come under the jurisdiction of the Council during the first
phase of redeployment. / <
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b. All civil powers and responsibilities, including planning and zoning, in
Areas A and B, set out in Annex III^ will be transferred to and assumed by
the Council during the first phase of redeployment.
c. In Area C, during the first phase of redeployment Israel will transfer to the
Council civil powers and responsibilities not relating to territory, as set out
in Annex III.
d. The further redeployments of Israeli military forces to specified military
locations will be gradually implemented in accordance with the DOP in
three phases, each to take place after an interval of six months, after the
inauguration of the Council, to be completed within 18 months from the
date of the inauguration of the Council.
e. During the further redeployment phases to be completed within 18 months
from the date of the inauguration of the Council, powers and
responsibilities relating to territory will be transferred gradually to
Palestinian jurisdiction that will cover West Bank and Gaza Strip territory,
except for the issues that will be negotiated in the permanent status
negotiations.
f. The specified military locations referred to in Article X, paragraph 2 above
will be determined in the further redeployment phases, within the specified
time-frame ending not later than 18 months from the date of the
inauguration of the Council, and will be negotiated in the permanent status
negotiations.
For the purpose of this Agreement and until the completion of the first phase of
the further redeployments:
a. "Area A" means the populated areas delineated by a red line and shaded in
brown on attached map No. 1;
b. "Area B" means the populated areas delineated by a red line and shaded in
yellow on attached map No. 1, and the built-up area of the hamlets listed in
Appendix 6 to Annex I; and
c. "Area C" means areas of the West Bank outside Areas A and B, which,
except for the issues that will be negotiated in the permanent status
negotiations, will be gradually transferred to Palestinian jurisdiction in
accordance with this Agreement.
/ . . ,
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ARTICLE XII
Arrangements for Security and Public Order
1. In order to guarantee public order and internal security for the Palestinians of the
West Bank and the Gaza Strip, the Council shall establish a strong police force
as set out in Article XIV below. Israel shall continue to carry the responsibility
for defense against external threats, including the responsibility for protecting the
Egyptian and Jordanian borders, and for defense against external threats from the
sea and from the air, as well as the responsibility for overall security of Israelis
and Settlements, for the purpose of safeguarding their internal security and public
order, and will have all the powers to take the steps necessary to meet this
responsibility.
2. Agreed security arrangements and coordination mechanisms are specified in
Annex I.
3. A Joint Coordination and Cooperation Committee for Mutual Security Purposes
(hereinafter "the JSC"), as well as Joint Regional Security Committees
(hereinafter "RSCs") and Joint District Coordination Offices (hereinafter
"DCOs"), are hereby established as provided for in Annex I.
4. The security arrangements provided for in this Agreement and in Annex I may be
reviewed at the request of either Party and may be amended by mutual
agreement of the Parties. Specific review arrangements are included in Annex I.
5. For the purpose of this Agreement, "the Settlements" means, in the West Bank -
the settlements in Area C; and in the Gaza Strip - the Gush Katif and Erez
settlement areas, as well as the other settlements in the Gaza Strip, as shown on
attached map No. 2.
ARTICLE XIII
Security
1. The Council will, upon completion of the redeployment of Israeli military forces
in each district, as set out in Appendix 1 to Annex I, assume the powers and
responsibilities for internal security and public order in Area A in that district.
2. a. There will be a complete redeployment of Israeli military forces from Area
B. Israel will transfer to the Council and the Council will assume
responsibility for public order for Palestinians. Israel shall have the
overriding responsibility for security for the purpose of protecting Israelis
and confronting the-threat of terrorism.
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b. In Area B the Palestinian Police shall assume the responsibility for public
order for Palestinians and shall be deployed in order to accommodate the
Palestinian needs and requirements in the following manner:
(i) The Palestinian Police shall establish 25 police stations and posts in
towns, villages, and other places listed in Appendix 2 to Annex I and
as delineated on map No. 3. The West Bank RSC may agree on the
establishment of additional police stations and posts, if required.
(2) The Palestinian Police shall be responsible for handling public order
incidents in which only Palestinians are involved.
(3) The Palestinian Police shall operate freely in populated places where
police stations and posts are located, as set out in paragraph b(i)
above.
(4) While the movement of uniformed Palestinian policemen in Area B
outside places where there is a Palestinian police station or post will
be carried out after coordination and confirmation through the
relevant DCO, three months after the completion of redeployment
from Area B, the DCOs may decide that movement of Palestinian
policemen from the police stations in Area B to Palestinian towns
and villages in Area B on roads that are used only by Palestinian
traffic will take place after notifying the DCO.
(5) The coordination of such planned movement prior to confirmation
through the relevant DCO shall include a scheduled plan, including
the number of policemen, as well as the type and number of weapons
and vehicles intended to take part. It shall also include details of
arrangements for ensuring continued coordination through
appropriate communication links, the exact schedule of movement to
the area of the planned operation, including the destination and
routes thereto, its proposed duration and the schedule for returning
to the police station or post.
The Israeli side of the DCO will provide the Palestinian side with its
response, following a request for movement of policemen in
accordance with this paragraph, in normal or routine cases within
one day and in emergency cases no later than 2 hours.
(6) The Palestinian Police and the Israeli military forces will conduct
joint security activities on the main roads as set out in Annex 1.
(7) The Palestinian Police will notify the West Bank RSC of the namesof
the policemen, number plates of police vehicles and serial numbers
of weapons, with respect to each police station and post in Area B.
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(8) Further redeployments from Area C and transfer of internal security
responsibility to the Palestinian Police in Areas B and C will be
carried out in three phases; each to take place after an interval of six
months, to be completed 18 months after the inauguration of the
Council, except for the issues of permanent status negotiations and
of Israel's overall responsibility for Israelis and borders.
(9) The procedures detailed in this paragraph wilt be reviewed within six
months of the completion of the first phase of redeployment.
ARTICLE XIV
The Palestinian Police
1. The Council shall establish a strong police force. The duties, functions, structure,
deployment and composition of the Palestinian Police, together with provisions
regarding its equipment and operation, as well as rules of conduct, are set out in
Annex I.
2. The Palestinian police force established under the Gaza-Jericho Agreement will
be fully integrated into the Palestinian Police and will be subject to the provisions
of this Agreement.
3. Except for the Palestinian Police and the Israeli military forces, no other armed
forces shall be established or operate in the West Bank and the Gaza Strip.
4. Except for the arms, ammunition and equipment of the Palestinian Police
described in Annex I, and those of the Israeli military forces, no organization,
group or individual in the West Bank and the Gaza Strip shall manufacture, sell,
acquire, possess, import or otherwise introduce into the West Bank or the Gaza
Strip any firearms, ammunition, weapons, explosives, gunpowder or any related
equipment, unless otherwise provided for in Annex I.
ARTICLE XV
Prevention of Hostile Acts
1 Both sides shall take all measures necessary in order to prevent acts of terrorism,
crime and hostilities directed against each other, against individuals falling under
the other's authority and against their property, and shall take legal measures
against offenders.
2. Specific provisions for the implementation of this Article are set out in Annex I. / •
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ARTICLE XVI
Confidence Building Measures
With a view to fostering a positive and supportive public atmosphere to accompany the
implementation of this Agreement, to establish a solid basis of mutual trust and good
faith, and in order to facilitate the anticipated cooperation and new relations between
the two peoples, both Parties agree to carry out confidence building measures as
detailed herewith:
1. Israel will release or turn over to the Palestinian side, Palestinian detainees and
prisoners, residents of the West Bank and the Gaza Strip. The first stage of
release of these prisoners and detainees will take place on the signing of this
Agreement and the second stage will take place prior to the date of the elections.
There will be a third stage of release of detainees and prisoners. Detainees and
prisoners will be released from among categories detailed in Annex VII (Release
of Palestinian Prisoners and Detainees). Those released will be free to return to
their homes in the West Bank and the Gaza Strip.
2. Palestinians who have maintained contact with the Israeli authorities will not be
subjected to acts of harassment, violence, retribution or prosecution. Appropriate
ongoing measures will be taken, in coordination with Israel, in order to ensure
their protection.
3. Palestinians from abroad whose entry into the West Bank and the Gaza Strip is
approved pursuant to this Agreement, and to whom the provisions of this Article
are applicable, will not be prosecuted for offenses committed prior to September
13, 1993.
CHAPTER 3 - LEGAL AFFAIRS
ARTICLE XVII
Jurisdiction
1. In accordance with the DOP, the jurisdiction of the Council will cover West
Bank and Gaza Strip territory as a single territorial unit, except for:
a. issues that will be negotiated in the permanent status negotiations:
Jerusalem, settlements, specified military locations, Palestinian refugees,
borders, foreign relations and Israelis; and
b. powers and responsibilities not transferred to the Council.
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2. Accordingly, the authority of the Council encompasses all matters that fell within
its territorial, functional and persona! jurisdiction, as follows:
i
a. The territorial jurisdiction of the Council shall encompass Gaza Strip
territory, except for the Settlements and the Military Installation Area
shown on map No. 2, and West Bank territory, except for Area C which,
except for the issues that will be negotiated in the permanent status
negotiations, will be gradually transferred to Palestinian jurisdiction in
three phases, each to take place after an interval of six months, to be
completed 18 months after the inauguration of the Council. At this time,
the jurisdiction of the Council will cover West Bank and Gaza Strip
territory, except for the issues that will be negotiated in the permanent
status negotiations.
Territorial jurisdiction includes land, subsoil and territorial waters, in
accordance with the provisions of this Agreement.
b. The functional jurisdiction of the Council extends to all powers and
responsibilities transferred to the Council, as specified in this Agreement or
in any future agreements that may be reached between the Parties during
the interim period.
c. the territorial and functional jurisdiction of the Council will apply to all
persons, except for Israelis, unless otherwise provided in this Agreement.
d. Notwithstanding subparagraph a. above, the Council shall have functional
jurisdiction in Area C, as detailed in Article IV of Annex III.
3. The Council has, within its authority, legislative, executive and judicial powers
and responsibilities, as provided for in this Agreement.
4. a. Israel, through its military government, has the authority over areas that
are not under the territorial jurisdiction of the Council, powers and
responsibilities not transferred to the Council and Israelis.
b. To this end, the Israeli military government shall retain the necessary
legislative, judicial and executive powers and responsibilities, in accordance
with international law. This provision shall not derogate from Israel's
applicable legislation over Israelis in personam.
5. The exercise of authority with regard to the electromagnetic sphere and air space
shall be in accordance with the provisions of this Agreement.
6. Without derogating from the provisions of this Article, legal arrangements.
detailed in the Protocol Concerning Legal Matters attached as. Annex IV to this
Agreement (hereinafter "Annex IV") shall be observed. Israel and the Council j t
may negotiate further legal arrangements.
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Israel and the Council shall cooperate on matters of legal assistance in criminal
and civil matters through a legal committee (hereinafter "the Legal Committee"),
hereby established.
The Council's jurisdiction will extend gradually to cover West Bank and Gaza
Strip territory, except for the issues to be negotiated in the permanent status
negotiations, through a series of redeployments of the Israeli military forces. The
first phase of the redeployment of Israeli military forces will cover populated
areas in the West Bank - cities, towns, refugee camps and hamlets, as set out in
Annex I - and will be completed prior to the eve of the Palestinian elections, i.e.
22 days before the day of the elections. Further redeployments of Israeli military
forces to specified military locations will commence immediately upon the
inauguration of the Council and will be effected in three phases, each to take
place after an interval of six months, to be concluded no later than eighteen
months from the date of the inauguration of the Council.
ARTICLE XVIII
Legislative Powers of the Council
For the purposes of this Article, legislation shall mean any primary and secondary
legislation, including basic laws, laws, regulations and other legislative acts.
The Council has the power, within its jurisdiction as defined in Article XVII of
this Agreement, to adopt legislation.
While the primary legislative power shall lie in the hands of the Council as a
whole, the Ra'ees of the Executive Authority of the Council shall have the
following legislative powers:
a. the power to initiate legislation or to present proposed legislation to the
Council;
b. the power to promulgate legislation adopted by the Council; and
c. the power to issue secondary legislation, including regulations, relating to
any matters specified and within the scope laid down in any primary
legislation adopted by the Council.
a. Legislation, including legislation which amends or abrogates existing laws
or military orders, which exceeds the jurisdiction of the Council or which is
otherwise inconsistent with the provisions of the DOP, this Agreement, or
of any other agreement that may be reached between the two sides during
the interim period, shall have no effect and shall be void ab initio.
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b. The Ra'ees of the Executive Authority of the Council shall not promulgate
legislation adopted by the Council if such legislation falls under the
provisions of this paragraph.
5. All legislation shall be communicated to the Israeli side of the Legal Committee.
6. Without derogating from the provisions of paragraph 4 above, the Israeli side of
the Legal Committee may refer for the attention of the Committee any legislation
regarding which Israel considers the provisions of paragraph 4 apply, in order to
discuss issues arising from such legislation. The Legal Committee will consider
the legislation referred to it at the earliest opportunity.
ARTICLE XIX
Human Rights and the Rule of Law
Israel and the Council shall exercise their powers and responsibilities pursuant to this
Agreement with due regard to internationally-accepted norms and principles of human
rights and the rule of law.
ARTICLE XX
Rights. Liabilities and Obligations
1. a. The transfer of powers and responsibilities from the Israeli military
government and its civil administration to the Council, as detailed in Annex
III, includes all related rights, liabilities and obligations arising with regard
to acts or omissions which occurred prior to such transfer, Israel will cease
to bear any financial responsibility regarding such acts or omissions and the
Council will bear all financial responsibility for these and for its own
functioning.
b. Any financial claim made in this regard against Israel will be referred to the
Council.
c. Israel shall provide the Council with the information it has regarding
pending and anticipated claims brought before any court or tribunal against
Israel in this regard.
d. Where legal proceedings are brought in respect of such a claim, Israel will
t notify the Council and enable it to participate in defending the claim and
raise any arguments on its behalf.
e. In the event that an award is made against Israel by any court or tribunal in
respect of such a claim, the Council shall immediately reimburse Israel the
full amount of the award.
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f Without prejudice to the above, where a court or tribunal hearing such a
claim finds that liability rests solely with an employee or agent who acted
beyond the scope of the powers assigned to him or her, unlawfully or with
willful malfeasance, the Council shall not bear financial responsibility,
2. a. Notwithstanding the provisions of paragraphs l.d through I f above, each
side may take the necessary measures, including promulgation of
legislation, in order to ensure that such claims by Palestinians, including
pending claims in which the hearing of evidence has not yet begun, are
brought only before Palestinian courts or tribunals in the West Bank and
the Gaza Strip, and are not brought before or heard by Israeli courts or
tribunals.
b. Where a new claim has been brought before a Palestinian court or tribunal
subsequent to the dismissal of the claim pursuant to subparagraph a. above,
the Council shall defend it and, in accordance with subparagraph 1 .a above,
in the event that an award is made for the plaintiff, shall pay the amount of
the award.
c. The Legal Committee shall agree on arrangements for the transfer of all
materials and information needed to enable the Palestinian courts or
tribunals to hear such claims as referred to in subparagraph b. above, and,
when necessary, for the provision of legal assistance by Israel to the
Council in defending such claims.
3. The transfer of authority in itself shall not affect rights, liabilities and obligations
of any person or legal entity, in existence at the date of signing of this
Agreement.
4. The Council, upon its inauguration, will assume all the rights, liabilities and
obligations of the Palestinian Authority.
5. For the purpose of this Agreement, "Israelis" also includes Israeli statutory
agencies and corporations registered in Israel.
ARTICLE XXI
Settlement of Differences and Disputes
Any difference relating to the application of this Agreement shall be referred to the
appropriate coordination and cooperation mechanism established under this
Agreement. The provisions of Article XV of the DOP shall apply to any such
difference which is not settled through the appropriate coordination and cooperation
mechanism, namely: /
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1. Disputes arising out of the application or interpretation of this Agreement or any
related agreements pertaining to the interim period shall be settled through the
Liaison Committee.
2. Disputes which cannot be settled by negotiations may be settled by a mechanism
of conciliation to be agreed between the Parties.
3. The Parties may agree to submit to arbitration disputes relating to the interim
period, which cannot be settled through conciliation. To this end, upon the
agreement of both Parties, the Parties will establish an Arbitration Committee.
CHAPTER 4 . COOPERATION
ARTICLE XXII
Relations between Israel and the Council
1. Israel and the Council shall seek to foster mutual understanding and tolerance
and shall accordingly abstain from incitement, including hostile propaganda,
against each other and, without derogating from the principle of freedom of
expression, shall take legal measures to prevent such incitement by any
organizations, groups or individuals within their jurisdiction.
2. Israel and the Council will ensure that their respective educational systems
contribute to the peace between the Israeli and Palestinian peoples and to peace
in the entire region, and will refrain from the introduction of any motifs that
could adversely affect the process of reconciliation.
3. Without derogating from the ether provisions of this Agreement, Israel and the
Council shall cooperate in combating criminal activity which may affect both
sides, including offenses related to trafficking in illegal drugs and psychotropic
substances, smuggling, and offenses against property, including offenses related
to vehicles.
ARTICLE XXIII
Cooperation with Regard to Transfer of Powers and Responsibilities
In order to ensure a smooth, peaceful and orderly transfer of powers and
responsibilities, the two sides will cooperate with regard to the transfer of security
powers and responsibilities in accordance with the provisions of Annex I, and the
transfer of civil powers and responsibilities in accordance with the provisions of Annex
III.
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ARTICLE XXIV
Economic Relations
The economic relations between the two sides are set out in the Protocol on Economic
Relations, signed in Paris on April 29, 1994, and the Appendices thereto, and the
Supplement to the Protocol on Economic Relations, all attached as Annex V, and will
be governed by the relevant provisions of this Agreement and its Annexes.
ARTICLE XXV
Cooperation Programs
1. The Parties agree to establish a mechanism to develop programs of cooperation
between them. Details of such cooperation are set out in Annex VI.
2. A Standing Cooperation Committee to deal with issues arising in the context of
this cooperation is hereby established as provided for in Annex VI.
ARTICLE XXVI
The Joint Israeli-Palestinian Liaison Committee
1. The Liaison Committee established pursuant to Article X of the DOP shall
ensure the smooth implementation of this Agreement. It shall deal with issues
requiring coordination, other issues of common interest and disputes.
2. The Liaison Committee shall be composed of an equal number of members from
each Party. It may add other technicians and experts as necessary.
3. The Liaison Committee shall adopt its rules of procedures, including the
frequency and place or places of its meetings.
4. The Liaison Committee shall reach its decisions by agreement.
5. The Liaison Committee shall establish a subcommittee that will monitor and steer
the implementation of this Agreement (hereinafter "the Monitoring and Steering
Committee"). It will function as follows:
a. The Monitoring and Steering Committee will, on an ongoing basis, monitor
the implementation of this Agreement, with a view to enhancing the
cooperation and fostering the peaceful relations between the two sides.
b. The Monitoring and Steering Committee will steer the activities of the
various joint committees established in this Agreement (the JSC, the CAC,
the Legal Committee, the Joint Economic Committee and the Standing / . ..
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Cooperation Committee) concerning the ongoing implementation of the
Agreement, and will report to the Liaison Committee.
c. The Monitoring and Steering Committee will be composed of the heads of
the various committees mentioned above.
d. The two heads of the Monitoring and Steering Committee will establish its
rules of procedures, including the frequency and places of its meetings.
ARTICLE XXVII
Liaison and Cooperation with Jordan and Egypt
1. Pursuant to Article XII of the DOP, the two Parties have invited the
Governments of Jordan and Egypt to participate in establishing further liaison
and cooperation arrangements between the Government of Israel and the
Palestinian representatives on the one hand, and the Governments of Jordan and
Egypt on the other hand, to promote cooperation between them. As part of these
arrangements a Continuing Committee has been constituted and has commenced
its deliberations.
2. The Continuing Committee shall decide by agreement on the modalities of
admission of persons displaced from the West Bank and the Gaza Strip in 1967,
together with necessary measures to prevent disruption and disorder.
3. The Continuing Committee shall also deal with other matters of common
concern.
ARTICLE XXVIII
Missing Persons
1. Israel and the Council shall cooperate by providing each other with all necessary
assistance in the conduct of searches for missing persons and bodies of persons
which have not been recovered, as well as by providing information about
missing persons.
2. The PLO undertakes to cooperate with Israel and to assist it in its efforts to
locate and to return to Israel Israeli soldiers who are missing in action and the
bodies of soldiers which have not been recovered.
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CHAPTER 5 - MISCELLANEOUS PROVISIONS
ARTICLE XXIX
Safe Passage between the West Bank and the Gaza Strip
Arrangements for safe passage of persons and transportation between the West Bank
and the Gaza Strip are set out in Annex I.
ARTICLE XXX
Passages
Arrangements for coordination between Israel and the Council regarding passage to
and from Egypt and Jordan, as well as any other agreed international crossings, are set
out in Annex I.
ARTICLE XXXI
Final Clauses
1. This Agreement shall enter into force on the date of its signing.
2. The Gaza-Jericho Agreement, except for Article XX (Confidence-Building
Measures), the Preparatory Transfer Agreement and the Further Transfer
Protocol will be superseded by this Agreement.
3.
6
The Council, upon its inauguration, shall replace the Palestinian Authority and
shall assume all the undertakings and obligations of the Palestinian Authority
under the Gaza-Jericho Agreement, the Preparatory Transfer Agreement, and the
Further Transfer Protocol.
The two sides shall pass all necessary legislation to implement this Agreement.
Permanent status negotiations will commence as soon as possible, but not later
than May 4, 1996, between the Parties. It is understood that these negotiations
shall cover remaining issues, including: Jerusalem, refugees, settlements, security
arrangements, borders, relations and cooperation with other neighbors, and other
issues of common interest.
Nothing in this Agreement shall prejudice or preempt the outcome of the
negotiations on the permanent status to be conducted pursuant to the DOP.
Neither Party shall be deemed, by virtue of having entered into this Agreement,
to have renounced or waived any of its existing rights, claims or positions.
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7. Neither side shall initiate or take any step that will change the status of the West
Bank and the Gaza Strip pending the outcome of the permanent status
negotiations.
8. The two Parties view the West Bank and the Gaza Strip as a single territorial
unit, the integrity and status of which will be preserved during the interim period.
9. The PLO undertakes that, within two months of the date of the inauguration of
the Council, the Palestinian National Council will convene and formally approve
the necessary changes in regard to the Palestinian Covenant, as undertaken in the
letters signed by the Chairman of the PLO and addressed to the Prime Minister
of Israel, dated September 9, 1993 and May 4, 1994.
10. Pursuant to Annex I, Article IX of this Agreement, Israel confirms that the
permanent checkpoints on the roads leading to and from the Jericho Area
(except those related to the access road leading from Mousa Alami to the
Allenby Bridge) will be removed upon the completion of the first phase of
redeployment.
1 i. Prisoners who, pursuant to the Gaza-Jericho Agreement, were turned over to the
Palestinian Authority on the condition that they remain in the Jericho Area for
the temainder of their sentence, will be free to return to their homes in the West
Bank and the Gaza Strip upon the completion of the first phase of redeployment.
12. As regards relations between Israel and the PLO, and without derogating from
the commitments contained in the letters signed by and exchanged between the
Prime Minister of Israel and the Chairman of the PLO, dated September 9, 1993
and May 4, 1994, the two sides will apply between them the provisions contained
in Article XXII, paragraph 1, with the necessary changes.
13. a. The Preamble to this Agreement, and all Annexes, Appendices and maps
attached hereto, shall constitute an integral part hereof.
b. The Parties agiee that the maps attached to the Gaza-Jericho Agreement
as: - . - . -.
a. map No. 1 (The Gaza Strip), an exact copy of which is attached to
this Agreement as map No. 2 (in this Agreement "map No. 2");
b. map No. 4 (Deployment of Palestinian Police in the Gaza Strip), an
exact copy of which is attached to this Agreement as map No. 5 (in
this Agreement "map No. 5"); and
c. map No. 6 (Maritime Activity Zones), an exact copy of which is
attached to this Agreement as map No. 8 (in this Agreement "map
No. 8");
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are an integral part hereof and will remain in effect for the duration of this
Agreement.
14. While the Jeftlik area will come under the functional and personal jurisdiction of
the Council in the first phase of redeployment, the area's transfer to the territorial
jurisdiction of the Council will be considered by the Israeli side in the first phase
of the further redeployment phases.
Done at Washington DC, this 28th day of September, 1995.
(Signed) Yitzhak RABIN
(Signed) Shimon PERES (Signed) Yasser ARAFAT
For the Government of the For the PLO
State of Israel
Witnessed by:
(Signed) William J. CLINTON
(Signed) Warren CHRISTOPHER (Signed) Andrei V. KOZYREV
The United States of America The Russian Federation
(Signed) Amre MOUSSA (Signed) Hussein IBN TALAL
The Arab Republic of Egypt The Hashemite Kingdom of Jordan
(Signed) Bjorn Tore GODAL
The Kingdom of Norway
(Signed) Felipe GONZALEZ
The European Union
Annex 9
Letter Dated 7 May 2003 from the Secretary-General addressed to the
President of the Security Council, U.N. Doc. S/2003/529 (30 April 2003)
(transmitting a text prepared by the Quartet)

Annex 10
Declaration of Principles on Interim Self-Government Arrangements, 13
September 1993, Art. V

Annex 11
Interim Agreement on the West Bank and the Gaza Strip, 28 September
1995, Art. XXXI(6)

Annex 12
State of Israel, Office of the Attorney General, ‘The International
Criminal Court's Lack of Jurisdiction over the so-called “Situation in
Palestine”’, 20 December 2019
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
1
THE INTERNATIONAL CRIMINAL COURT’S LACK OF JURISDICTION OVER THE SOCALLED
“SITUATION IN PALESTINE”
20 December, 2019
EXECUTIVE SUMMARY
1. The State of Israel has been committed to the cause of international criminal justice from the
outset. Established in the aftermath of the catastrophic events of the twentieth century, including
the Holocaust perpetrated against the Jewish people, Israel was an early and passionate advocate
for the establishment of an international criminal court that would hold accountable the
perpetrators of heinous crimes that deeply shock the conscience of humanity. It took an active
part in the negotiations leading up to the adoption of the Rome Statute in 1998, and continues to
consider that a diligent permanent international criminal tribunal can serve a constructive role in
deterring and punishing for mass atrocities.
2. While extending its support to the values that motivated the establishment of the International
Criminal Court (ICC), Israel has early on expressed deep concerns, also shared by other States,
that the Court could be exposed to political manipulation that might lead it to stray from its
mandate. Israel thus decided not to become a party to the Rome Statute at this stage, but has
continued to play an active role in various international efforts to put an end to impunity for the
gravest international crimes.
3. The Palestinian attempts to draw the ICC into core political aspects of the Israeli-Palestinian
conflict have brought into a sharp focus precisely the risk that the Court might be exploited for
illegitimate political gain. This is chiefly because – as the following memorandum establishes –
the Court manifestly lacks jurisdiction over the so-called “situation in Palestine”. Jurisdiction is,
of course, not a mere formality: it plays a critical role in defining judicial competence in order to
prevent abuse of the judicial process, guarantee that courts do not stray from the mandates
carefully entrusted to them, and insulate the law from both power and populism. Any court
departing from such essential rules guiding its activity would be unfaithful to the requirements
of its judicial character, and would gravely undermine its judicial integrity.
4. In the case of the “situation in Palestine”, the fundamental precondition to jurisdiction enshrined
in the Rome Statute – namely, that a State having criminal jurisdiction over its territory and
nationals has delegated such jurisdiction to the Court – is clearly not met. As demonstrated in
the memorandum, a substantive legal inquiry into this matter cannot be sidestepped; and any
such inquiry must lead to the conclusion that the precondition is indeed not satisfied.
5. A substantive legal inquiry into the precondition of the Court’s jurisdiction cannot be averted
primarily because the events surrounding the purported accession of “Palestine” to the Rome
Statute in 2015 did not settle the highly controversial question of Palestinian statehood. In fact,
the administrative act of circulating the Palestinian purported instrument of accession was
accompanied by an explicit clarification that it was carried out without prejudice to the legal
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question of whether a Palestinian State existed. UN General Assembly resolution 67/19, on
which the circulation of the Palestinian instrument of accession relied, had concerned a
procedural matter of Palestinian representation within the UN alone, and had anyhow referred to
Palestinian statehood as a future aspiration. By the same token, the subsequent participation of
“Palestine” in the ICC Assembly of States Parties was facilitated on the understanding that the
legal question as to whether a Palestinian State existed would be left for others. Against this
background, the ICC Prosecutor’s decision of January 2015 to open a preliminary examination
into what she termed the “situation in Palestine” was said to be without prejudice to the question
of the Court’s jurisdiction, which still remains pending.
6. If a sound assessment of the legal and factual record is undertaken, its inevitable conclusion
must be that a sovereign Palestinian State does not exist, and that the precondition to the Court’s
jurisdiction thus cannot be fulfilled. This is because sovereignty over the West Bank and the
Gaza Strip remains in abeyance, and the Palestinian entity manifestly fails to meet the criteria
for statehood under general international law. In particular, the Palestinian Authority lacks
effective control over the territory concerned (and in claiming that the territory is occupied by
Israel, essentially concedes that that is so). The alleged recognition of “Palestine” by some
States cannot compensate for the absence of the established criteria for statehood; and the right
of the Palestinians to self-determination must not be conflated with any claim to statehood. The
Palestinian claim to existing statehood is indeed fraught with significant contradictions, as
senior Palestinian officials themselves acknowledge by continuing to refer to a Palestinian State
in future terms.
7. The absence of a sovereign Palestinian State further means that there is clearly no sovereign
ability to prosecute that could be delegated to the Court, and that there is no “territory of” a
State (within the meaning of the Rome Statute) over which the Court may exercise its
jurisdiction. Any delimitation by the Court of the territory concerned would anyhow require it to
act in contravention of binding Israeli-Palestinian agreements that expressly leave such matters
to direct negotiation between the parties, and to make determinations that are wholly unsuitable
for an international criminal tribunal. No reliance can be made in this context on such strictly
political terms as “the occupied Palestinian territories”, reference to which is consistently made
without prejudice to the fundamentally legal question of sovereign title.
8. Finally, even if the Rome Statute were to be misinterpreted so as to allow non-sovereign entities
to confer jurisdiction upon the Court, existing Israeli-Palestinian agreements make it clear that
the Palestinians have no criminal jurisdiction either in law or in fact over Area C, Jerusalem and
Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court. Here, too, any
conclusion that the precondition to the Court’s jurisdiction is fulfilled would not withstand any
serious legal and factual scrutiny, and would inevitably run up against the terms of the Rome
Statute itself as well as the rules of general international law more broadly.
9. Israel acknowledges that the lack of jurisdiction on the part of international tribunals in respect
of any particular disputes does not relieve States of their duty to fulfil their international legal
obligations. In the present context, Israel remains willing and able to address any Palestinian
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grievance through various remedial avenues (including multi-layered review mechanisms
already in place), and by direct bilateral negotiations. Cynical attempts to manipulate the ICC
into acting where its jurisdiction is manifestly lacking threaten to undermine not only the
Court’s legitimacy and credibility, but also the prospects for achieving the just and lasting
settlement long awaited by Israelis and Palestinians alike.
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A. INTRODUCTION
1. On 16 January 2015 the Office of the Prosecutor (“OTP”) of the International Criminal Court
(“ICC”) opened a preliminary examination into what it termed the “situation in Palestine”
concerning “alleged crimes committed in the occupied Palestinian territory, including East
Jerusalem, since 13 June 2014”.1 This followed a submission by the Palestinians of an ad hoc
declaration purporting to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute
(the Court’s founding treaty2) as well as a purported instrument of accession thereto. The OTP
acknowledged that the decision to open a preliminary examination was without prejudice to the
question of the Court’s jurisdiction (which remains pending to this day), and has moreover
recognized that this question is not free from difficulties.3
2. As will be explained in the present memorandum, the ICC lacks jurisdiction over the “situation
in Palestine”. This is because the fundamental precondition to the exercise of the Court’s
jurisdiction – that a State having criminal jurisdiction over its territory and nationals had
delegated such jurisdiction to the Court – is clearly not met. As the Prosecutor has herself
observed, for the ICC to intervene “where clear jurisdictional parameters have not been met …
is neither good law nor makes for responsible judicial action”.4
3. Israel, among other States, objected from the outset to the Palestinian purported accession to the
Rome Statute, for the principled reason that only States may accede to the Statute and confer
jurisdiction upon the ICC.5 Yet the OTP took a different position considering that determining
1 Office of the Prosecutor, The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary
examination of the situation in Palestine, ICC-OTP-20150116-PR1083, 16 Jan. 2015, available at https://www.icccpi.
int//Pages/item.aspx?name=pr1083 (last accessed: 19 Dec. 2019).
2 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 U.N.T.S. 3 (hereinafter:
“Rome Statute”).
3 Office of the Prosecutor, Report on Preliminary Examination Activities 2015, 12 Nov. 2015, para. 54, available at
https://www.icc-cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf (last accessed: 19 Dec. 2019); Office of the Prosecutor,
Report on Preliminary Examination Activities 2016, 12 Nov. 2016, para. 119, available at https://www.icccpi.
int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf (last accessed: 19 Dec. 2019); Office of the Prosecutor, Report on
Preliminary Examination Activities 2017, 4 Dec. 2017, paras. 58, 67-68, available at https://www.icccpi.
int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf (last accessed: 19 Dec. 2019); Office of the
Prosecutor, Report on Preliminary Examination Activities 2018, 5 Dec. 2018, para. 268, available at https://www.icccpi.
int/itemsDocuments/181205-rep-otp-PE-ENG.pdf (last accessed: 19 Dec. 2019).
4 Office of the Prosecutor, 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 Sep. 2014, available at
https://www.icc-cpi.int//Pages/item.aspx?name=otp-st-14-09-02 (last accessed: 19 Dec. 2019).
5 Depositary notification C.N.63.2015.TREATIES-XVIII.10 (Israel: Communication) (23 Jan. 2015): “‘Palestine’ does
not satisfy the criteria for statehood under international law and lacks the legal capacity to join the aforesaid Statute
under general international law, as well as under the terms of the Rome Statute and of bilateral Israeli-Palestinian
agreements”. See also, for example, Depositary notification C.N.64.2015.TREATIES-XVIII.10 (United States of
America: Communication) (23 Jan. 2015) (“Accession to the Rome Statute is limited to sovereign States. Therefore, the
Government of the United States of America believes that the ‘State of Palestine’ is not qualified to accede to the Rome
Statute”); Depositary notification C.N.57.2015.TREATIES-XVIII.10 (Canada: Communication) (23 Jan. 2015)
(“‘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 … ‘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’”). Australia has
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the validity of an act of accession did not require an inquiry into the highly controversial
question of Palestinian statehood when it opened the preliminary examination into the “situation
in Palestine”, having considered instead that since “Palestine” was granted by the United
Nations General Assembly the status of “non-member observer State” in the United Nations, it
should be viewed as a “State” solely for the purposes of acceding to the Rome Statute and
lodging an Article 12(3) declaration.6 The OTP therefore took the view that accession could not
be equated with substantive statehood and distinguished the “status” needed to accede to the
Statute, and statehood per se under international law – an issue unresolved in the OTP’s view by
the act of accession.
4. In light of the position taken by the OTP with respect to accession, when considering the
Court’s jurisdiction concerning the “situation in Palestine” and given the jurisdictional
requirements prescribed by the Rome Statute, a substantive determination as to the contentious
question of Palestinian statehood cannot be averted: jurisdiction is not a mere formal or
procedural matter, but lies at the heart of international law and any exercise of judicial
competence so as to prevent abuse of the judicial process and insulate the law from both power
and populism. More specifically, the question whether there is a State that has criminal
jurisdiction over its territory and nationals that may be (and indeed has been) delegated to the
Court, must be addressed. As this memorandum will establish, any credible legal analysis will
inevitably lead to the conclusion that the reply to this question in the present case must be in the
negative.
5. Additional conditions for the exercise of the Court’s jurisdiction, including complementarity,
gravity and interests of justice,7 are not met either. These significant issues fall outside the scope
of the present memorandum, which similarly does not address temporal and subject-matter
similarly written to the Secretary-General of the United Nations to express its concern over the Palestinian Authority’s
lodgment of the purported instrument of accession to the Rome Statute, stressing that “]t]he Australian Government
does not recognize the ‘State of Palestine’. As such, Australia does not recognize the right of the Palestinian Authority
to lodge instruments of accession under the entry into force provisions of [a range of multilateral treaties, particularly
the Rome Statute of the International Criminal Court]. … Australia’s long-standing position is that a negotiated
settlement is the only way to ensure the creation of a future Palestinian state …”: Letter from Permanent Representative
of Australia to the United Nations dated 6 Feb. 2015, enclosed with a letter from the Australian Ambassador to Israel to
Israel’s National Security Advisor, 11 Feb. 2015 (on file with the Israeli Government). The Dutch Minister of Foreign
Affairs has likewise stated before the Dutch parliament in August 2014, with reference to Palestinian intentions to
accede to the Rome Statute, that “… only States can accept the jurisdiction of the ICC by becoming parties to the Rome
Statute or by making a statement to that effect in accordance with the provisions of the Rome Statute. The Netherlands
does not recognize the Palestinian state”: TWEEDE KAMER [Dutch Parliament Website] (22 Aug. 2014), available at
https://www.tweedekamer.nl/kamerstukken/kamervragen/detail?id=2014Z13910&did=2014D28652 (translated from
Dutch) (last accessed: 19 Dec. 2019). The lack of such explicit statements on behalf of any other State should not be
taken to imply that they consider the accession as valid: see also infra note 109.
6 Report on Preliminary Examination Activities 2015, supra note 3, at para. 53. See also para. 18 below.
7 Rome Statute, supra note 2, art. 53.
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jurisdiction, the question whether the Court may exercise jurisdiction over nationals of States
not parties to the Rome Statute,8 and any other questions that might be implicated.
6. The memorandum proceeds as follows. Following this introduction, Section B explains that the
ICC’s jurisdiction under Article 12 of the Rome Statute is based on the delegation of criminal
jurisdiction over territory and nationals by sovereign States. Section C explains that nothing in
the events surrounding the purported accession of “Palestine” to the Rome Statute (much like
the purported Palestinian acceptance of the Court’s jurisdiction under Article 12(3)) satisfies
this essential precondition. Section D then demonstrates that “Palestine” does not meet this
precondition for the reasons that no sovereign Palestinian State exists as a matter of
international law, and the scope of the territory concerned is anyway undefined. Finally, section
E explains that even if the Rome Statute is misinterpreted to allow for non-sovereign entities to
confer jurisdiction upon the Court, the Palestinians lack the capacity to validly delegate any
jurisdiction over Area C and Jerusalem as well as over Israeli nationals.
B. THE COURT’S JURISDICTION IS BASED ON THE DELEGATION BY SOVEREIGN STATES OF
CRIMINAL JURISDICTION OVER THEIR TERRITORY AND NATIONALS
7. It is widely accepted that the jurisdiction of the ICC “is not based on the principle of universal
jurisdiction: it requires [under the Rome Statute] that the United Nations Security Council
(article 13(b)) or a ‘State’ (article 12) provide jurisdiction”.9 Article 12, in particular, is indeed
the expression of a hard-fought compromise reached among those States who participated in the
negotiations leading up to the adoption of the Rome Statute, and who ultimately rejected
proposals for all-encompassing jurisdiction in favor of a more limited jurisdictional regime.10
Article 12(2) provides that:
“… the Court may exercise its jurisdiction if one or more of the following States
are Parties to this Statute or have accepted the jurisdiction of the Court in
accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of that
vessel or aircraft;
(b) The State of which the person accused of the crime is a national.”11
8. Article 12(2) thus enshrines a jurisdictional regime expressly founded on the traditional
jurisdictional bases of territoriality and nationality, which establish, in turn, that the jurisdiction
of the Court relies on sovereign States delegating to it their criminal jurisdiction over their
8 Israel is not a party to the Rome Statute. On 31 December 2000, Israel signed the Rome Statute as an expression of
moral support for the basic idea underlying the establishment of the Court, while expressing its concerns over the risk of
politicization and rejecting any attempt to interpret provisions of the Statute in a politically motivated manner against
Israel and its citizens. On 28 August 2002, Israel informed the UN Secretary-General that “Israel does not intend to
become a party to the treaty. Accordingly, Israel has no legal obligations arising from its signature on 31 December
2000”: Depositary notification C.N.894.2002.TREATIES-35 (Israel: Communication) (28 Aug. 2002).
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territory and nationals. There are, therefore, three key requirements: first, that the entity
constitutes a State under general international law; second, that such a State possesses the
jurisdiction that is in the circumstances intended to be delegated; and, third, that such delegation
has in fact taken place. These requirements serve to guarantee that the Court would only operate
on a firm jurisdictional basis.
9. While the term “State” is not defined in the Rome Statute, there can be no doubt that its
meaning is indeed the one commonly accepted and recognized in general international law: a
sovereign State.12 This becomes readily clear when interpreting Article 12(2) in accordance with
the customary rules of treaty interpretation reflected in the Vienna Convention on the Law of
Treaties, which require that “a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in light of its object
and purpose”.13
9 Office of the Prosecutor, Situation in Palestine, 3 Apr. 2012, para. 4, available at https://www.icccpi.
int/nr/rdonlyres/c6162bbf-feb9-4faf-afa9-836106d2694a/284387/situationinpalestine030412eng.pdf (last accessed:
19 Dec. 2019).
10 The regime that was ultimately incorporated into Article 12 of the Rome Statute was based on a proposal put forward
by the Republic of Korea to break an impasse that had developed in the course of the negotiations. That proposal was
important for two reasons. First, the Koreans were explicit that their proposal was based on the principle of delegation
and said that, under their proposal, “jurisdiction is conferred upon the Court based on State consent”. Second, the
Korean proposal shows that the jurisdiction to be delegated to the Court is limited to territorial jurisdiction and active
personality jurisdiction. To be sure, as originally submitted, the Korean proposal included language that would have
also delegated passive personality jurisdiction (jurisdiction in cases where the victim was a national of the delegating
State), or custodial jurisdiction (jurisdiction on the basis that the delegating State had custody of the defendant), but this
additional language was deleted and, as a result, the jurisdiction that States delegate under the Rome Statute is limited to
territorial and active personality jurisdiction: see Proposal submitted by the Republic of Korea for articles 6 [9],* 7 [6]
and 8 [7], A/CONF.183/C.1/L.6 (18 Jun. 1998), available at https://legal-tools.org/doc/2fba4e (last accessed: 19 Dec.
2019)). This is depicted in several commentaries on the Rome Statute: see Elizabeth Wilmshurst, Jurisdiction of the
Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE – ISSUES, NEGOTIATIONS,
RESULTS 127, 127 (Roy S. Lee ed., 1999); Philippe Kirsch and Darryl Robinson, Reaching Agreement at the Rome
Conference, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 67, 83 (Antonio
Cassese et al. eds., 2009) (hereinafter: “Cassese et al. Commentary”); Olympia Bekou and Robert Cryer, The
International Criminal Court and Universal Jurisdiction: A Close Encounter?, 56 INT’L & COMP. L.Q. 49, 50 (2007);
WILLIAM A. SCHABAS, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE 345-350 (2nd
ed., 2016).
11 Article 12 further establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome
Statute (art. 12(1)) or by making an ad hoc declaration accepting the Court’s jurisdiction (art. 12(3)).
12 That the meaning assigned to the terms used in art. 12(2)(a) of the Rome Statute should be consistent with
international law has recently been acknowledged by the OTP: see Office of the Prosecutor, Report on Preliminary
Examination Activities 2019, 5 Dec. 2019, para. 47, available at https://www.icc-cpi.int/itemsDocuments/191205-repotp-
PE.pdf (last accessed: 19 Dec. 2019). See also Harmen van der Wilt, The Rome Statute: Only States are Invited to
Tune In, 20 QUEST. INT’L L. 5, 7-8 (2015) (observing that Article 12 of the Rome Statute alludes to the criteria of
statehood accepted under international law).
13 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 31(1). The Court has had occasion
to state that “[t]he interpretation of treaties, and the Rome Statute is no exception, is governed by the Vienna
Convention on the Law of Treaties (23 May 1969)”: Situation in the Democratic Republic of the Congo, ICC-01/04-
168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 Mar. 2006
Decision Denying Leave to Appeal, para. 33 (13 July 2006). See also The Prosecutor v. Jean-Pierre Bemba Gombo et
al., ICC-01/05-01/13, Judgment pursuant to Article 74 of the Statute, para. 17 (19 Oct. 2016).
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10. International law attaches great importance to distinguishing between States and other entities.
It consistently reserves the fundamental legal status of statehood only to those entities that meet
certain objective criteria prescribed by it and thus attain sovereignty, which is indeed a
consequence of statehood. States are, therefore, sovereign by definition. Sovereignty in its turn
means that “the State has over it no other authority than that of international law”.14
11. There is no evidence that the drafters of the Rome Statute intended to give the term “State” any
other, special, meaning,15 as was done, for example, in the case of the Rules of Procedure and
Evidence of the International Criminal Tribunal for the Former Yugoslavia.16 On the contrary,
non-States or sub-State entities were not contemplated by the drafters of the Rome Statute in the
negotiation of Article 12.
12. The reference in Article 12(2) of the Statute to “territory of” a State further reinforces that the
term “State” means a sovereign State, as it is widely accepted that “territory of [a State]”
comprises, under international law, all the land, internal waters and territorial sea, and the
airspace above them, over which a State has sovereignty.17 In the same vein, “… sovereignty in
relation to a portion of the surface of the globe is the legal condition necessary for the inclusion
of such portion in the territory of any particular State”.18 The OTP has itself acknowledged as
recently as in 2019 that the term “territory” of a State, “as used in article 12(2)(a), includes
those areas under the sovereignty of the State”.19
14 Customs Regime between Germany and Austria, Advisory Opinion, 1931 P.C.I.J. (Ser. A/B) No. 41, at 55, 57 (5 Sep.
1931) (Individual Opinion by M. Anzilotti).
15 See also Vienna Convention on the Law of Treaties, supra note 13, art. 31(4).
16 The Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991
took care to define the term “State” more expansively in order to bring entities other than sovereign States within the
scope of the Tribunal’s activity: Rules of Procedure and Evidence of the International Criminal Tribunal for the former
Yugoslavia, IT/32/Rev.50, 8 Jul. 2015, Rule 2. Other international instruments likewise make an explicit reference to
such entities where their participation in the treaty regime is sought: see, for example, United Nations Convention on
the Law of the Sea, 1982, 1833 U.N.T.S. 397, arts. 305(1) and 307.
17 ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 178 (3rd ed., 2013). Other provisions in multilateral treaties
referring to “territory of [a State]”, such as Article 29 of the Vienna Convention on the Law of Treaties and Article 2 of
the International Covenant on Civil and Political Rights (ICCPR), attach this meaning to the term as well: see,
respectively, Anthony Aust, Treaties, Territorial Application, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW, para. 2 (Rüdiger Wolfrum ed., 2006); MANFRED NOWAK, U.N. COVENANT ON CIVIL AND
POLITICAL RIGHTS: CCPR COMMENTARY 43 (2nd ed., 2005). Needless to add, the debate concerning the ICCPR’s
extraterritorial application turns on the interpretation of the phrase “and subject to its jurisdiction”, not the phrase
“within its territory”.
18 Island of Palmas (Netherlands v. U.S.A), R.I.A.A. Vol II 829, 838 (Perm. Ct. Arb. 1928). The Grand Chamber of the
European Court of Justice similarly determined that the term “territory of the Kingdom of Morocco” means “the
geographical space over which [the Kingdom of Morocco] exercises the fullness of the powers granted to sovereign
entities by international law”: Case C-104/16 P, Council v. Front Polisario, 2016 EU:C:2016:973, paras. 16 and 95 (21
Dec. 2016).
19 Report on Preliminary Examination Activities 2019, supra note 12 (adding that “[s]uch interpretation of the notion of
territory is consistent with the meaning of the term under international law”). See also William A. Schabas and Giulia
Pecorella, Article 12: Preconditions to the exercise of jurisdiction, in THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT – A COMMENTARY 672, 681-682 (Otto Triffterer and Kai Ambos eds., 3rd ed., 2016) (observing, in
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13. Parts 9 and 10 of the Rome Statute, which deal respectively with international cooperation and
judicial assistance and with enforcement, similarly assume (if not require) the existence of
sovereign competence.20 So do other provisions of the Statute,21 including those referring to the
complementarity of the Court to national criminal jurisdiction, which mandates that “the
primary jurisdiction belongs to the State with the closest sovereign connection to the locus of
the crime or the alleged suspect”.22 The reference to national criminal jurisdiction once again
indicates that it is only sovereign States that those drafting the Rome Statute had in mind.
reference to art. 12(2)(a), that “territorial jurisdiction is a manifestation of State sovereignty”). Reference in Article
12(2)(b) of the Rome Statute to the term “nationality”, too, indicates that the term “State” means a sovereign State.
20 The decision by the ICC’s Pre-Trial Chamber I with respect to the proceedings against Saif Al-Islam Gaddafi is
instructive in this regard, as the Court ordered the Registrar to communicate with the Libyan Government, and not with
the militia holding Mr. Gaddaffi, for purposes of addressing a request for surrender to that militia: The Prosecutor v.
Saif Al-Islam Gaddafi, ICC-01/11-01/11, Order to the Registrar with respect to the “Request for an order directing the
Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami Al-‘Atiri, Commander of the Abu-bakr al-
Siddiq Battalion in Zintan, Libya”, paras. 8-9 (2 Jun. 2016). See also Jackson N. Maogoto, A Giant without Limbs: The
International Criminal Court’s State-Centric Cooperation Regime, 23 U QUEENSLAND LJ 102, 109, 115 (2004) (“The
extent to which states, by becoming parties to the Rome Statute, take on obligations to assist the ICC in activities on
their own territory is very much an issue of sovereignty. As with other areas defining the relationship between the ICC
and states, the Rome Statute’s final text balances the states’ willingness to make commitments necessary for the ICC to
function, with a recognition that the ICC will operate in a world of sovereign states. … Criminal prosecution is
inherently linked to notions of national sovereignty and control over persons and territory”); van der Wilt, supra note
12, at pp. 6, 12 (“the acceptance of non-State entities is difficult to reconcile with the system of international criminal
law enforcement as envisaged in the Rome Statute. That conclusion is reached on the basis of a teleological
interpretation of the concept of ‘state’, in the light of the objectives of the Rome Statute. In view of the principle of
complementarity, the International Criminal Court is meant as default option, an instance of last resort, whenever states
are unwilling or unable to genuinely investigate or prosecute a case. It is highly questionable whether quasi-states
would ever be capable to undertake these commitments. In a similar vein, it is doubtful whether non-state entities would
be able to cooperate with the Court, an obligation that is expressly stipulated in Article 12(3) Rome Statute. …
According to Part 9 of the Rome Statute, the duty to cooperate … requires an institutional and legal framework that is
hardly less demanding than the one that would be necessary to conduct a full criminal trial. It is hardly imaginable that a
non-state entity that does not exercise ‘effective control’ would be capable of rendering the level of assistance required.
For the assessment of the question whether an entity would be qualified to lodge a declaration ex Article 12(3), I would
therefore argue that it should meet all the criteria, mentioned in the Montevideo Convention”).
21 See, for example, Article 8(3), which refers to “the responsibility of a Government to maintain or re-establish law and
order in the State or to defend the unity and territorial integrity of the State”; and Article 21, which allows the Court to
apply, under certain circumstances, the “national laws of States”.
22 Chile Eboe-Osuji, President of the International Criminal Court, Keynote Address at the Annual Meeting of the
American Society of International Law (29 Mar. 2019), available at https://www.icc-cpi.int/itemsDocuments/190329-
stat-pres.pdf (emphasis added) (last accessed: 19 Dec. 2019). In the Situation in Georgia, the OTP (when examining the
issue of complementarity as part of its request to open an investigation) thus considered that because South Ossetia was
part of the territory of Georgia and not a State within the meaning of the Statute, the South Ossetian de facto authorities
did not have standing before the Court to lodge an admissibility challenge: Office of the Prosecutor, Situation in
Georgia - Corrected Version of “Request for authorisation of an investigation pursuant to article 15”, ICC-01/15-4-Corr,
para. 322 (16 Oct. 2015). Pre-Trial Chamber I agreed that “any proceedings undertaken by the de facto authorities of
South Ossetia are not capable of meeting the requirements of article 17 of the Statute, due to South Ossetia not being a
recognized State”: Situation in Georgia, ICC-01/15-12, Decision on the Prosecutor’s Request for Authorization of an
Investigation, para. 40 (27 Jan. 2016).
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14. The OTP has recognized that the Court’s jurisdiction is indeed derived from the existence of a
“sovereign ability to prosecute”;23 and the President of the Court has recently confirmed that
“[t]he nature of the ICC’s jurisdiction … actually prides and underscores national
sovereignty”.24 A commentary to the Rome Statute similarly observes that “Article 12 of the
Rome Statute is a manifestation of the principle of state sovereignty, one of the most important
principles of public international law governing the international community and the relations
between States”.25 For purposes of the ICC’s jurisdiction, therefore, the term ‘State’ must be
read to mean a sovereign State according to general international law. Attaching to it any other
meaning would be incompatible with the generally accepted rules of treaty interpretation, and
would do violence to the terms of the Rome Statute altogether.
15. As noted above, Article 12(2) further reflects the foundational principle that the Court operates
on the basis of delegated jurisdiction: it does not have unfettered jurisdiction, but rather
“exercises its jurisdiction on the basis of competence delegated to it by States Parties” and is
only competent to do so “in the same way that the State Party’s own domestic courts could”.26
23 Office of the Prosecutor, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICCRoC46(
3)-01/18-1, para. 49 (9 Apr. 2018) (emphasis added, citing Schabas and Pecorella).
24 Eboe-Osuji, supra note 22.
25 Stephane Bourgon, Jurisdiction Ratione Loci, in Cassese et al. Commentary, supra note 10, at pp. 559, 562. See also
Marko Milanovic, Is the Rome Statute Binding on Individuals (And Why We Should Care), 9 J. INT’L CRIM. JUST. 25,
47-48 (2011): “In true international law spirit, the Statute’s main concern are sovereign states, who must voluntarily
accept the Court’s jurisdiction …”; Yaël Ronen, ICC Jurisdiction over Acts Committed in the Gaza Strip: Art. 12(3) of
the ICC Statute and Non-state Entities, 8 J. INT’L CRIM. JUST. 3, 26-27 (2010): “Interpreting Article 12(3) more widely
to include entities effectively governing non-sovereign territory also seems unwarranted, as such interpretation flies in
the face of the ICC Statute’s wording and the intention of its drafters. Any involvement in issues of recognition risks
exposing the Prosecutor and the Court to accusations of politicization and subjectivity. The ICC’s goal of ending
impunity is channeled through a state-centred mechanism”.
26 Rod Rastan, Jurisdiction, in THE LAW AND PRACTICE OF THE INTERNATIONAL CRIMINAL COURT 141, 155 (Carsten
Stahn ed., 2015) (referring to delegation in the context of personal jurisdiction; on delegation in the context of territorial
jurisdiction, see pp. 163-164). See also Mahmoud Cherif Bassiouni, The Permanent International Criminal Court, in
JUSTICE FOR CRIMES AGAINST HUMANITY 173, 181 (Lattimer and Sands eds., 2003) (“[the ICC] is not a supra-national
body, but an international body similar to existing ones … The ICC does no more than what each and every state can do
under existing international law … The ICC is therefore an extension of national criminal jurisdiction …”); The Board
of Editors, The Rome Statute: A Tentative Assessment, in Cassese et al. Commentary, supra note 10, at pp. 1901, 1911
(“Territorial jurisdiction is the primary basis for jurisdiction under international law; indeed, it is an essential attribute
of State sovereignty. … if the State wishes to delegate this jurisdiction to an international criminal court … this is
something it is clearly entitled to do … The ICC is not premised on universal jurisdiction, but on conventional bases of
jurisdiction – territoriality and/or nationality”); Michael A. Newton, How the International Criminal Court Threatens
Treaty Norms, 49 VAND. J. TRANSNAT’L L. 371, 374-375 (2016) (“the Court’s authority is not independent or
omnipotent. Treaty-based ICC jurisdiction flows exclusively from the delegation of a State Party’s sovereign
jurisdictional power. Except for the overarching authority of the United Nations Security Council to convey jurisdiction
to the Court through binding resolutions under Chapter VII of the UN Charter, the jurisdiction of the ICC, as embodied
in Article 12 of the Rome Statute, is based only on derivative jurisdiction granted by states at the time they ratify the
multilateral treaty”); Roger O’Keefe, Response: “Quid” Not “Quantum”: A Comment on “How the International
Criminal Court Threatens Treaty Norms”, 49 VAND. J. TRANSNAT’L L. 433, 439 (2016) (“by way of Article 12(2)(a) of
the Rome Statute, a receiving State Party to the Statute delegates to the ICC the exercise of its customary right to
entertain criminal proceedings in respect of the crimes specified in Article 5 of the Statute when these crimes are
committed in its territory”); Kevin Jon Heller, What Is an International Crime? (A Revisionist History), 58 HARV. INT’L
L.J. 353, 375 (2017) (“the Court is based on the delegated jurisdiction of its member states”); Schabas and Pecorella,
supra note 19, at p. 682 (referring to the jurisdiction of the ICC as being delegated by a territorial State); Yuval Shany,
STATE OF ISRAEL
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In the words of the OTP, Article 12(2)(a) “functions to delegate to the Court the States Parties’
own ‘sovereign ability to prosecute’” the relevant crimes.27 Significantly, the act of delegating
criminal jurisdiction to the Court is itself an “exercise of national sovereignty”.28
16. The jurisdictional regime of the ICC is thus founded, by careful and deliberate design, upon the
basic notion that there exists a sovereign State that has delegated to the Court its criminal
jurisdiction on the basis of territoriality or nationality; and the Court must satisfy itself, in each
case, that this fundamental precondition is indeed met as a matter of law. Such an inquiry is no
mere formalism: it is essential in order to guarantee that the Court remains loyal both to the
terms of the Rome Statute and to basic principles of the broader international legal order within
which it operates. For a body seeking to actually assert the criminal jurisdiction of sovereign
States that has been delegated to it, a substantive legal inquiry as to whether there is such a
sovereign state is thus unavoidable. It cannot be sidestepped or grounded in artificial
constructions. Clearly, if the precondition is not satisfied, the Court must conclude that it does
not have jurisdiction.
C. THE PURPORTED ACCESSION BY “PALESTINE” TO THE ROME STATUTE (MUCH LIKE ITS
PURPORTED ACCEPTANCE OF THE COURT’S JURISDICTION UNDER ARTICLE 12(3)) DOES NOT
FULFILL THE SUBSTANTIVE REQUIREMENT FOR THE COURT’S JURISDICTION
17. The Palestinians first attempted to confer jurisdiction upon the ICC in January 2009, when the
“Palestinian National Authority” purported to submit a declaration under Article 12(3) of the
Rome Statute. The OTP initiated a preliminary examination, but ultimately closed it in April
2012 on the ground that the legal status of “Palestine” within the United Nations was not that of
a State.29
18. In opening the preliminary examination into the “situation in Palestine” in January 2015, the
OTP sidestepped any substantive inquiry into the logically preliminary question of whether a
sovereign Palestinian State exists by relying on UN General Assembly resolution 67/19 of 29
November 2012, which accorded “Palestine” the status of “non-member observer State” in the
United Nations. In so doing it adopted the position that “the focus of the inquiry into Palestine’s
ability to accede to the Rome Statute has consistently been the question of Palestine’s status in
In Defence of Functional Interpretation of Article 12)3( of the Rome Statute: A Response to Yaël Ronen, 8 J. INT’L
CRIM. JUST. 329, 331-333 (2010) (“Article 12 referrals, which are conditioned on membership in the Statute or ad hoc
consent to ICC jurisdiction by the ‘territorial’ state or the state whose nationality the alleged perpetrator holds, are
reflective of the delegation-based approach”).
27 Supra note 23. This Request by the Prosecution itself recognizes that only territorial- and nationality-based
jurisdiction, as opposed to universal jurisdiction, may be delegated to the Court.
28 MAHMOUD CHERIF BASSIOUNI, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT:
INTRODUCTION, ANALYSIS, AND INTEGRATED TEXT OF THE STATUTE, ELEMENTS OF CRIMES AND RULES OF PROCEDURE
AND EVIDENCE 136 (2005).
29 Supra note 9, at para. 7.
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
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the UN, given the UNSG’s role as treaty depositary of the Statute”.30 At the same time, the OTP
has made it known that “[t]he preliminary examination of the situation in Palestine raises
specific challenges relating to both factual and legal determinations. In the latter respect, the
Office has in particular to consider the possible challenges to the Court’s jurisdiction, and/or to
the scope of any such jurisdiction”.31 By that, the OTP has itself recognized that the purported
accession of “Palestine” to the Rome Statute is distinct from – and does not settle – the question
of the Court’s jurisdiction over the “situation in Palestine”. By the same token, the Court’s
registrar has emphasized, in a letter sent to Palestinian President Mahmoud Abbas following
receipt of the Palestinian declaration purportedly made under Article 12(3) of the Rome Statute,
that “[t]his acceptance is without prejudice to any prosecutorial or judicial determinations on
this matter”.32
19. The purported accession by “Palestine” cannot therefore itself provide a basis for the ICCs
jurisdiction as it did not settle the question of whether a sovereign Palestinian State exists. As
will be seen, this is so for at least three reasons: (1) General Assembly resolution 67/19 did not
purport to make a legal determination as to whether “Palestine” qualifies as a State, and was
explicitly limited in its effect to the UN; (2) the actions of the UN Secretary-General as
depositary of multilateral treaties, as he himself has made clear, are not determinative of a
“highly political and controversial” question such as that of Palestinian statehood;33 and (3) the
Palestinian participation in the Court’s Assembly of States Parties cannot be taken to constitute
or demonstrate such statehood either.
20. In these circumstances, even if the Palestinian entity is (erroneously) regarded as a State Party to
the Rome Statute by virtue of the technical act of accession under Article 125 thereof, this
cannot, of itself, satisfy the substantive precondition that underlies the Court’s jurisdictional
regime. This has been further acknowledged by the OTP itself when it recently determined that
in each case it must be confirmed that the “territory” concerned (within the meaning of art.
12(2)(a) of the Rome Statute) is an area under the sovereignty of a State.34 For the Prosecutor
herself, then, the test for the Court’s jurisdiction must not be based on mere accession or on the
status of “State Party” alone, but on the substantive test of whether the entity concerned is a
sovereign State.
30 Supra note 1 (emphasis in original). The Prosecutor has clarified that “… the issue of statehood has never been
something that my office was using as a determination to intervene or not. It’s not been the reason why we have decided
to open preliminary examination or not … we have been very consistent in saying that Palestine, the status of Palestine
at the United Nations, is what has determined, for us, whether we should open preliminary examination or not”, video
available at Fatou Bensouda: S Africa ‘had to arrest Omar al-Bashir’, ALJAZEERA, 27 Jan. 2015 12:45
GMT), http://www.aljazeera.com/programmes/talktojazeera/2015/06/fatou-bensouda-africa-arrest-omar-al-bashir-
150626132631885.html (minutes 4:39-5:20) (last accessed: 19 Dec. 2019).
31 Office of the Prosecutor, Report on Preliminary Examination Activities 2017, supra note 3, at para. 67.
32 Letter from the Registrar of the International Criminal Court to H.E. Mr. Mahmoud Abbas (7 Jan. 2015), available at
https://www.icc-cpi.int/iccdocs/PIDS/press/150107-Registrar-Letter-to-HE-President-Abbas-regarding-Palestine-Art-
12-3--Declaration.pdf (last accessed: 19 Dec. 2019).
33 UN Office of Legal Affairs – Treaty Section, Summary of Practice of the Secretary-General as Depositary of
Multilateral Treaties, U.N. Doc. ST/LEG/7/Rev.1 (1999), para. 81.
34 Report on Preliminary Examination Activities 2019, supra note 12.
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
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21. UN General Assembly resolution 67/19 did not determine the substantive legal question of
whether a sovereign Palestinian State exists under international law. By its own terms,
resolution 67/19 was limited to a procedural upgrade of the Palestinian representation within the
UN alone.35 The UN Secretary-General underscored precisely this point by stating that the
status accorded to the Palestinians by the resolution “does not apply to organizations or bodies
outside the United Nations”,36 the ICC clearly being such a body. Furthermore, the status of
“non-member observer State” (much like the name chosen for the entity concerned37) is anyway
not determinative of the question whether the relevant entity has the international legal status of
a State: inherently political organs are not equipped, nor are they competent, to render definitive
decisions on controversial questions of international law that lie outside their own
competence.38 In any case, resolution 67/19 itself refers to Palestinian statehood as a future
aspiration rather than a current legal reality, and calls for negotiations within the Middle East
peace process in order to advance a two-State solution.39 Many States, including those voting in
favor of the resolution, took care to explain that their vote was without prejudice to the question
of Palestinian statehood under international law.40 This is again consistent with the position
35 G.A. Res. 67/19, U.N. Doc. A/RES/67/19 (4 Dec. 2012). The wording “in the United Nations” appearing in the
second operative paragraph of the resolution (as well as in its title) was not part of the original text, but was added
precisely to highlight this distinction. It may be noted, moreover, that the status of “non-member observer State” is not
envisaged under the UN Charter, and has developed merely to facilitate greater participation in the work of the UN: see
also Ulrich Fastenrath, Membership, Article 4, in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 341, 355-
357 (Bruno Simma et al. eds., 3rd ed., 2012) (hereinafter: “Simma et al. Commentary”).
36 Status of Palestine in the United Nations: Report of the Secretary-General, A/67/738, para. 1 (8 Mar. 2013).
37 The name “State of Palestine” as used within the UN (and beyond) was chosen by the Palestinians themselves as a
procedural matter under UN protocol and thus does not – indeed cannot – of itself be determinative of statehood or
reflective of any such recognition.
38 See also Jure Vidmar, Palestine and the Conceptual Problem of Implicit Statehood, 12 CHINESE J. INT’L LAW 19, 37,
para. 60 (2013): “the label ‘non-member State’ in the General Assembly does not necessarily mean that an entity is a
State simply because the term ‘State’ is used”.
39 See G.A. Res. 67/19, supra note 35, at preambular para. 9 and operative paras. 4, 5, 6: “Reaffirming … the need
for… the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the
right to their independent State”; “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 … fulfils the vision of two
States”; “Expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace
process based on … the Quartet road map to a permanent two-State solution to the Israeli-Palestinian conflict”; “Urges
all States and 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 self-determination, independence and freedom” (emphasis
added).
40 See the statements recorded in U.N. GAOR, 67th Sess., 44th plen. mtg., U.N. Doc. A/67/PV.44 (29 Nov. 2012) and
U.N. GAOR, 67th Sess., 45th plen. mtg., U.N. Doc. A/67/PV.45 (29 Nov. 2012) (hereinafter: “Official Records of the
General Assembly”). New Zealand, for example, stated that “[t]his 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 …” (A/67/PV.44, at p. 20,
emphasis added); Belgium stated that “the resolution adopted today by the General Assembly does not yet constitute
recognition of a State in the full sense” (ibid., at p. 16, emphasis added); Italy stated that “Italy stresses that today’s vote
in no way prejudges its commitment to a comprehensive negotiated peace settlement, which remains the only possible
path to Palestinian Statehood and full United Nations membership” (ibid., at p. 19, emphasis added); Norway stated
that “[o]ur 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” (ibid., at p. 21,
emphasis added); Serbia stated that “we … have an interest in promoting such a solution, which would bring about
STATE OF ISRAEL
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under international law according to which General Assembly resolutions cannot have an effect
which is binding or constitutive or definitive, still less universally determinative, of statehood.41
22. As the UN Secretary-General himself made clear, his actions as depositary of the Rome
Statute are not determinative of “highly political and controversial” questions such as that of
Palestinian statehood. Under the law of treaties, the functions assigned to a treaty depositary
are purely administrative.42 Precisely in cases in which the question arises whether a certain
entity wishing to accede to a treaty is a State, the Secretary-General as depositary does not
purport to make a determination to that effect: as the UN Office of Legal Affairs has explained,
“[the Secretary-General] would not wish to determine, on his own initiative, the highly political
and controversial question of whether or not the areas whose status was unclear were States.
Such a determination, he believed, would fall outside his competence”.43
23. It was thus solely in an administrative capacity that, after receiving the Palestinian purported
instrument of accession to the Rome Statute, the Secretary-General circulated on 6 January 2015
a standard depositary notification to the Rome Statute signatories, soon clarifying that “[t]his is
an administrative function performed by the Secretariat” and emphasizing that “it is for States to
make their own determination with respect to any legal issues raised by instruments circulated
statehood for Palestine … a nation still in quest for its statehood” (ibid., at p.17, emphasis added); see also the positions
expressed by France (ibid., at p. 14); Greece (ibid., at p. 19); Denmark (ibid., at p. 18); Switzerland (ibid., at p. 16);
Finland (ibid., at p. 20); South Sudan (A/67/PV.45, at p. 2); Georgia (ibid., at pp. 4-5); Malaysia (ibid., at p. 21);
Mauritius (ibid., at p. 7); and Tunisia (ibid., at p. 24). Other States, which did not vote in favor of the resolution,
expressed similar positions, among them Germany (A/67/PV.44, at p. 15, stating that “it must be clear to everybody that
a Palestinian State can be achieved only through direct negotiations between Israelis and Palestinians”); Hungary (ibid.,
at p. 19); the Czech Republic (ibid., at pp. 19-20); Australia (ibid., at p. 20); the United Kingdom (ibid., at p. 15); the
United States (ibid., at p. 13); Bulgaria (ibid., at p. 16); the Netherlands (A/67/PV.45, at p. 2); and Romania (ibid., at p.
6).
41 Crawford has similarly remarked, with regard to the former “observer” status of “Palestine” within the United
Nations, that arguments according to which that status was indicative of statehood “… stop far short of the proposition
that the General Assembly can recognize Palestine as a state, and not merely for such ‘internal’ purposes of the United
Nations as observer status, with an effect which is ‘constitutive, definitive, and universally determinative’”: James
Crawford, The Creation of the State of Palestine: too much too soon?, 1 EJIL 307, 312 (1990). See also JAMES
CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 441 (2nd ed., 2006) (hereinafter: “Crawford 2006”).
Needless to add, the General Assembly does not have the power to adopt legally binding resolutions (except with
respect to the internal management and procedural matters relating to the function of the UN), and cannot create legal
obligations for UN Member States or for other international actors such as the Court: see, for example, Eckart Klein and
Stefanie Schmahl, The General Assembly, Functions and Powers, Article 10, in Simma et al. Commentary, supra note
35, at pp. 461, 463, 480; Yaël Ronen, Recognition of the State of Palestine: Still Too Much Too Soon?, in
SOVEREIGNTY, STATEHOOD AND STATE RESPONSIBILITY – ESSAYS IN HONOUR OF JAMES CRAWFORD 229, 231
(Christine Chinkin and Freya Baetens eds., 2015).
42 Vienna Convention on the Law of Treaties, supra note 13, art. 77. The commentary by the International Law
Commission to the corresponding draft article proposed by it states that the depositary “is not invested with competence
to make a final determination” on issues of substance: Yearbook of the International Law Commission 1966, Y.B. Int’l
L. Comm’n Vol. II, U.N. Doc. A/CN.4/SER. A/1966/Add, at p. 270. See also Fatsah Ouguergouz et al., Art. 77 1969
Vienna Convention, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 1715, 1720-1722
(Olivier Corten and Pierre Klein eds., 2011).
43 Supra note 33. It is noteworthy that in a report published in March 2019, the UN Secretary-General himself refers to
“a future Palestinian State”: Implementation of Security Council resolution 2334 (2016) – Report of the Secretary-
General, S/2019/251, para. 67 (20 Mar. 2019).
STATE OF ISRAEL
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by the Secretary-General”.44 In these circumstances, the circulation of the Palestinian purported
instrument of accession pursuant to a technical provision common to various international
agreements (and the derivative status of being a “State Party”), clearly cannot be relied on as a
determination that a sovereign Palestinian State is in existence.45 To regard such a technical act
as a valid test for the Court’s jurisdiction would be to subvert the intention of its founders and
gravely undermine the jurisdictional regime they carefully agreed on.
24. The Palestinian participation in the work of the ICC Assembly of States Parties does not, and
again cannot, constitute or evince statehood for the purpose of Article 12 of the Rome Statute.
For its part, the Assembly of States Parties (“ASP”) has been careful to avoid taking any legal
position on whether “Palestine” constitutes a sovereign State. Thus, as long ago as when the
Palestinians were first invited to participate in the Assembly’s annual meeting as an “Invited
State”, the President of the ASP explicitly clarified that “the Assembly takes such [procedural]
decisions in accordance with the Rules of Procedure of the Assembly, independently of and
without prejudice to decisions taken for any other purpose, including decisions of any other
organization or organs of the Court regarding any legal issues that may come before them”.46
This practice of the ASP is consistent with the provisions of the Rome Statute according to
which questions concerning judicial functions of the Court, including those that relate to
jurisdiction, are entrusted to the Court and not to the ASP.47 Accordingly, mere participation in
the work of a political body such as the ASP cannot by sleight of hand and, in disregard of the
Court’s own Statute, be interpreted as determining complex and controversial legal questions,
still less determine statehood.
25. Thus, to consider that the question of Palestinian statehood was determined by General
Assembly resolution 67/19 or the ensuing purported accession to the Rome Statute that relied on
it, or by the participation of “Palestine” in the work of the ASP, would be wholly unfounded. A
critical legal issue such as that of the Court’s jurisdiction must not be decided on the basis of a
vote on a resolution by a political organ; and State creation in international law surely cannot be
44 Note to correspondents – Accession of Palestine to multilateral treaties (7 Jan. 2015), available at
https://www.un.org/sg/en/content/sg/note-correspondents/2015-01-07/note-correspondents-accession-palestinemultilateral
(last accessed: 19 Dec. 2019). Depositaries of other treaties have dealt with the issue similarly. For
example, after the “State of Palestine” submitted a purported instrument of accession to the Convention on the Physical
Protection of Nuclear Material, the Director General of the International Atomic Energy Agency clarified that “[t]he
designation employed [i.e. “State of Palestine”] does not imply the expression of any opinion whatsoever on the part of
the depositary concerning the legal status of any country or territory or of its authorities, or concerning the delimitation
of its frontiers”: Depositary notification 170-N5.92.21 Circ of 1 February 2018 (Convention on the Physical Protection
of Nuclear Material: Accession by the State of Palestine).
45 Nor does the fact that the word “State” in Article 125 of the Rome Statute was apparently interpreted to enable the
purported accession by an entity that is not a sovereign State, have an impact on the meaning of the term “State” in
other, substantive provisions of the Statute. The OTP itself has recently observed that a term used in the Rome Statute
does not necessarily have the same meaning in every provision of the Statute: Office of the Prosecutor, Situation in the
Islamic Republic of Afghanistan - Consolidated Prosecution Response to the Appeals Briefs of the Victims, ICC-02/17,
para. 40 (22 Oct. 2019) (citing RICHARD GARDINER, TREATY INTERPRETATION (2nd ed., 2015)).
46 Assembly of States Parties to the Rome Statute of the International Criminal Court, Thirteenth Session, Official
Records, Vol. 1, ICC-ASP/13/20, p. 5 (8-17 Dec. 2014). See also infra note 109.
47 Rome Statute, supra note 2, art. 119(1); see also art. 119(2).
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
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implicit or a mere side-effect of procedural provisions such as Article 125 of the Rome
Statute.48 Accession to the Rome Statute – even when valid – was never intended to serve such a
purpose or to carry such weight in a jurisdictional regime explicitly based on the delegation of
sovereign ability to prosecute. As noted above, the OTP itself, along with the UN Secretary-
General, the Court’s Registrar, and the President of the ASP, have indeed all recognized that
such normative shortcuts cannot suffice for purposes of the crucial exercise of establishing the
Court’s jurisdiction. The Court, much like the OTP,49 would thus be abdicating its duty to
resolve the legal question of establishing jurisdiction under Article 12 if it failed to conduct a
careful and independent assessment of the law and facts at issue.50 Any such assessment, as will
now be shown, cannot but lead to the conclusion that no sovereign Palestinian State – let alone
one that has title to territory over which it has the requisite criminal jurisdiction that may be
delegated to the Court – is in existence.
D. THE PALESTINIAN ENTITY MANIFESTLY FAILS TO SATISFY THE SUBSTANTIVE REQUIREMENT
FOR JURISDICTION UNDER ARTICLE 12(2) OF THE ROME STATUTE
26. Having clarified that the purported accession of “Palestine” to the Rome Statute cannot of itself
satisfy the jurisdictional requirement under Article 12, it will now be demonstrated that a sound
substantive assessment of the legal and factual records would inevitably lead to the conclusion
that no jurisdiction exists. This is chiefly because sovereignty over the West Bank and the Gaza
Strip is currently in abeyance, and the Palestinian entity does not meet the established criteria
for statehood under general international law. The right of the Palestinians to self-determination,
or the alleged recognition of “Palestine” by some States, do not alter this reality, which finds
expression in the Palestinians’ own statements on the matter. In these circumstances, it is clear
that the precondition to the ICC’s jurisdiction, as enshrined in Article 12(2) of the Court’s
Statute, is once again not met.
27. No Palestinian State has ever been in existence, and sovereignty over the West Bank and the
Gaza Strip is in abeyance. The territory that in 1922 became known as “Mandatory Palestine”
had formed part of the Ottoman Empire until Turkey (as successor to the Ottoman Empire)
relinquished sovereignty over it when ceding various territories to the administration of the
48 See also Vidmar, supra note 38, at para. 72 (adding, at para. 60, with reference to international treaties, that “[t]he
object and purpose of these treaties is not State creation or clarification of legal status. It would be a misuse of
international treaty law if they were interpreted in this way and the legal status of an entity established by a reverse
reading of the term ‘State party’ in multi-lateral treaties”). Vidmar further explains that accession to treaties or
international organizations is not constitutive of statehood given the fact that “[b]ecause of the political nature of voting,
sometimes non-State entities are given a chance to participate in international forums that are intended to be reserved
for States. Yet this does not automatically make them States under international law” (at para. 69).
49 Rome Statute, supra note 2, art. 42.
50 See, in the same vein, the examination by the ICTY of Croatian statehood in Prosecutor v. Slobodan Milošević, Case
No. IT-02-54-T, Decision on Motion for Judgement of Acquittal, paras. 85-115 (Int’l Crim. Trib. for the Former
Yugoslavia 16 Jun. 2004), http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/040616.htm (last accessed: 19 Dec.
2019).
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Allied Powers following its defeat in the First World War.51 This disposition, as the arbitral
tribunal in Eritrea v. Yemen put it, “created for the [territory in question] an objective legal
status of indeterminacy pending a further decision of the interested parties”.52 Between the years
1917 and 1948, Great Britain administered the territory, first through military control and later
as a mandatory power under the League of Nations system. Sovereignty over it remained in
abeyance during the British Mandate,53 which was endorsed by the League Council and
constituted a binding international instrument.54 Recognizing the “historical connection of the
Jewish people with Palestine”, the Mandate explicitly entrusted Great Britain with putting into
effect the 1917 Balfour Declaration that was made “in favour of the establishment in Palestine
of a national home for the Jewish people”.55 It further provided that “recognition has thereby
been given to the historical connection of the Jewish people with Palestine and to the grounds
for reconstituting their national home in that country”, thus acknowledging the indigenous rights
of the Jewish people to the land as predating the Mandate.56 The establishment of a Jewish
national home was to be done without prejudice to “the civil and religious rights of existing
51 This was incorporated in the 1920 Treaty of Sèvres, which was superseded by the 1923 Treaty of Lausanne, wherein
Turkey renounced all rights and title over its former territories situated outside its frontiers: Treaty of Peace with
Turkey Signed at Lausanne, art. 16, 24 July 1923, 28 L.N.T.S 11. The name “Palestine” was adopted in the 2nd century
AD by the Roman Empire ruler of the territory: see Encyclopaedia Britannica, Palestine (last updated: 3 October 2019),
available at https://www.britannica.com/place/Palestine (last accessed: 19 Dec. 2019). This was done “[i]n an effort to
wipe out all memory of the bond between the Jews and the land, Hadrian changed the name of the province from Iudaea
to Syria-Palestina …” (S. Safrai, The Era of the Mishnah and Talmud (70-640), in A HISTORY OF THE JEWISH PEOPLE
307, 334 (H.H. Ben-Sasson ed., 1976)).
52 Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), R.I.A.A. Vol XXII 209, para. 445 (Perm. Ct.
Arb. 1996) (referring to Article 16 of the Treaty of Lausanne and, more specifically, to territories similarly renounced
by Turkey).
53 See also Malcolm N. Shaw, The League of Nations Mandate System and the Palestine Mandate: What Did and Does
it Say About International Law and What Did and Does it Say About Palestine?, 49 ISR. L. REV. 287, 295 (2016). For
the observation that “[s]overeignty over a Mandated Territory is in abeyance”, see International Status of South-West
Africa, Advisory Opinion, 1950 I.C.J. 128, at 150 (11 Jul. 1950) (Separate Opinion of Judge McNair); JAMES
CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 235 (9th ed., 2019).
54 See also South West Africa (Liberia v. South Africa), Preliminary Objections, 1962 I.C.J. Rep. 319, p. 330 (21 Dec.
1962).
55 Mandate for Palestine, 3 League of Nations Official Journal 1007 (1922), preambular para. 2. The Balfour
Declaration of 1917 stated that “His Majesty’s Government [of the United Kingdom of Great Britain and Northern
Ireland] view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best
endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status
enjoyed by Jews in any other country”: Letter from Arthur James Balfour, Secretary of State for Foreign Affairs to Lord
Walter Rothschild (2 Nov. 1917). The incorporation of the Balfour Declaration into the Mandate for Palestine was
expressly agreed in a resolution of the Principal Allied Powers at the San Remo Conference of 24-25 April 1920.
Churchill, as Secretary of State for the Colonies, made it clear that British correspondence dating from 1915 that offered
to the Arabs independence in parts of the territories that belonged to the Ottoman Empire (“the McMahon pledge”), had
excluded “[t]he whole of Palestine west of the Jordan”: see the Report of the Palestine Royal Commission (the Peel
Commission), which was appointed in 1936 by the British government to investigate the causes of unrest among
Palestinian Arabs and Jews: PALESTINE ROYAL COMMISSION REPORT, PRESENTED BY THE SECRETARY OF STATE FOR
THE COLONIES TO PARLIAMENT BY COMMAND OF HIS MAJESTY, 1937, Cms. 5479 pp. 19-20 (Gr. Brit.).
56 Mandate for Palestine, ibid., at preambular para. 3.
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non-Jewish communities in Palestine”.57 Article 5 of the Mandate, which provided that no part
of the territory of Mandatory Palestine would be ceded or leased to any foreign power, and other
terms in the Mandate as well as its extensive travaux préparatoires, attest to the understanding
at the time that the right of the Jewish people to a national home extended to the entire territory
of Mandatory Palestine.58
28. The rights of the Jewish people under the Mandate were preserved by virtue of Article 80(1) of
the UN Charter, the inclusion of which was advanced precisely by those supporting the
establishment of a Jewish national home in Palestine59 – and under strong opposition from the
Arab States. On 29 November 1947, following the announcement of the British Government of
its intention to withdraw from Mandatory Palestine, the UN General Assembly adopted
resolution 181, recommending the partition of the land into a Jewish State and an Arab State.60
This resolution was reluctantly accepted by the representatives of the Jewish community in
Palestine, but was explicitly rejected by the Arab States and the Palestinian Arab representatives
and thus fell into desuetude.61 On 14 May 1948 the British Mandate was officially terminated
57 Ibid., preambular para. 2 (emphasis added). It is not without significance that the Mandate does not refer to any
political rights of those non-Jewish communities in Palestine.
58 Ibid., art. 5. This is also implicit in the resolution of the Council of the League of Nations approving the separation of
Transjordan from the territory of Mandatory Palestine (as envisaged in art. 25 of the Mandate), in which it was made
clear that the establishment of a national home for the Jewish people was “not applicable to the territory known as
Transjordan”: see Article 25 of the Mandate for Palestine, Eighth Meeting (Public), 3 League of Nations O. J. 1188-9
(1922). In the same vein, the obligation under art. 6 of the Mandate to facilitate Jewish immigration and to encourage
“close settlement by Jews on the land” applied to the entire Mandatory Palestine.
59 Article 80(1) provides that “Except as may be agreed upon in individual trusteeship agreements, made under Articles
77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded,
nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any
peoples or the terms of existing international instruments to which Members of the United Nations may respectively be
parties”. See also Dietrich Rauschning, Article 77, in Simma et al. Commentary, supra note 35, at pp. 1861-1862;
Huntington Gilchrist, Colonial Questions at the San Francisco Conference, 39(5) AMER. POL. SCI. REV. 982, 990-991
(1945) (referring to Article 80 in saying that “[t]his clause resulted from the fears of mandatory powers lest their legal
position in the mandated territories be taken away out of hand by the trusteeship system. There were also fears on the
part of minority groups (such as the supporters of the Jewish people in relation to Palestine) lest their privileges under
the League Covenant and the mandates should be taken away”); LELAND M. GOODRICH ET AL., CHARTER OF THE
UNITED NATIONS: COMMENTARY AND DOCUMENTS 495 (1969); Shaw, supra note 53, at p. 303; Eugene V. Rostow, The
Future of Palestine, in 24 MCNAIR PAPER, INSTITUTE FOR NATIONAL STRATEGIC STUDIES, NATIONAL DEFENSE
UNIVERSITY 10-11 (1993).
60 G.A. Res. 181 (II), U.N. Doc. A/RES/181(II) (29 Nov. 1947), designating the City of Jerusalem to be placed under a
special international regime. The United Nations Special Commission on Palestine had earlier concluded that the
“Arabs of Palestine … have not been in possession of it [Palestine Mandate territory] as a sovereign nation”, and that
there were “no grounds for questioning the validity of the Mandate for the reason advanced by the Arab States”:
U.N.S.C.O.P, Question of Palestine/Majority plan (Partition), Minority plan (Federal State), paras. 163, 179, U.N.
Doc. A/364 (3 Sep. 1947).
61 See also Crawford 2006, supra note 41, at pp. 424-425, 430-432. Needless to say, UN General Assembly resolutions
such as resolution 181 are, in any event, without binding effect. Recent claims that Israel had subsequently accepted the
territorial delimitation suggested by the UN partition plan through signing the 1949 Lausanne Protocol are misleading,
as Israel merely agreed therein to regard the plan as a basis for future discussions on borders. This political willingness
in no way indicated any waiver of legal rights or claims. For example, the Director General of the Israeli Ministry of
Foreign Affairs, representing Israel in Lausanne, made it there clear that accepting the November 29th frontiers as a
“base de travail” did not mean acquiescence in them: Letter from W. Eytan (the Director General of the Israeli Ministry
of Foreign Affairs) to M. Sharett (Israel’s Minister for Foreign Affairs), 9 May 1949. That Israel did not waive any of
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and the State of Israel was established, only to be invaded on the following day by several Arab
States.62
29. The 1948 war, during which Jordan and Egypt took control over the West Bank and the Gaza
Strip respectively, ended in 1949 in a series of armistice agreements between Israel and its
neighbors. These laid down that the armistice lines (later to be referred to as the “Green Line”)
were to be temporary, do not construe “in any sense … a political or territorial boundary”, and
were delineated “without prejudice to rights, claims and positions of either Party hereto in the
ultimate peaceful settlement of the Palestine question”.63 Sovereignty over the West Bank and
the Gaza Strip thus remained in abeyance.64
30. In June 1967, acting in self-defense, Israel gained control of the West Bank and the Gaza Strip
and unified under its sovereignty the city of Jerusalem. Any argument that the West Bank and
the Gaza Strip are since then occupied affects neither Israel’s longstanding claim to that territory
nor the fact that sovereignty over it remains in abeyance, as belligerent occupation does not
invalidate any pre-existing claims to the territory concerned. On 22 November 1967, the UN
Security Council unanimously adopted resolution 242, affirming that the fulfillment of the
principles of the UN Charter in achieving peace in the Middle East “should include the
application of both the following principles”: Israel’s withdrawal from territories, and respect
for the right of every State in the area to exist within secure and recognized borders.65 This
its territorial rights or claims is further evident in, inter alia, the subsequent armistice agreements with Arab States and
the agreements concluded between Israel and the Palestinians.
62 UN Secretary-General Trygve Lie later described the Arab invasion as “the first armed aggression the world has seen
since the end of the [Second World] [W]ar”: TRYGVE LIE, IN THE CAUSE OF PEACE: SEVEN YEARS WITH THE UNITED
NATIONS 174 (1954).
63 General Armistice Agreement, Egypt-Isr., 24 Feb. 1949, 42 U.N.T.S. 251, arts. V(2), V(3) and XI; see also General
Armistice Agreement, Isr.-Jordan, 3 Apr. 1949, 42 U.N.T.S. 303, arts. II(2), IV(2) and VI(9).
64 Any argument that when Israel gained control over the West Bank in 1967, that territory had already belonged to a
State, is therefore without any merit. In particular, on 15 May 1950, the Arab League agreed that Jordan’s purported
annexation of the West Bank that year was illegal: see Jordan’s annexation in Palestine is called illegal by Arab
League, THE NEW YORK TIMES (16 May 1950); U.S. DEPARTMENT OF STATE – OFFICE OF INTELLIGENCE RESEARCH,
INTELLIGENCE REPORT, NO. 6565, DISUNITY AMONG THE ARAB STATES: THE HASHEMITE CONTROVERSY AND ARAB
PALESTINE, p. 9 (1954), available
at https://www.cia.gov/library/readingroom/docs/HUSSEINI%2C%20AMIN%20EL%20%20%20VOL.5_0204.pdf
(last accessed: 19 Dec. 2019). Israel, for its part, maintained its claim to the territory, including through the 1949
armistice agreements and by asserting that it did not consider itself bound by the annexation unilaterally proclaimed by
the Jordanian Parliament. The official Israeli position was indeed that “[t]his is a unilateral act that is in no way binding
on Israel. We have concluded an armistice agreement with the Hashemite Jordan Kingdom and it is our firm intention
fully to abide by it. This agreement, however, entails no final political settlement, and no such final settlement is
possible without negotiations and the conclusion of a peace treaty between the two parties. It should therefore be clear
that the status of the Arab areas west of the Jordan remains an open question as far as Israel is concerned”: Two areas
united by vote in Jordan, THE NEW YORK TIMES (25 Apr. 1950); see also Letter from M. Sharett (Israel’s Minister for
Foreign Affairs) to Sir Alexander Knox Helm (the United Kingdom Minister to Israel), 2 May 1950.
65 S.C. Res. 242, U.N. Doc. S/RES/242, para. 1 (22 Nov. 1967). It is noteworthy that the text of the resolution
deliberately refers to a withdrawal of Israeli forces “from territories occupied in the recent conflict”, not from “all the
territories occupied”. Lord Caradon, who served as Permanent Representative of the United Kingdom to the United
Nations between 1964 and 1970 and was the architect of resolution 242, later explained that “[w]e could have said:
well, you go back to the 1967 line. But I know the 1967 line, and it’s a rotten line. You couldn’t have a worse line for a
permanent international boundary. It’s where the troops happened to be on a certain night in 1948. It’s got no relation to
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resolution was later accepted by Israel, Egypt, and Jordan, as well as the Palestine Liberation
Organization (PLO, as the representative of the Palestinian people), as the basis for permanent
settlement of their respective disputes.66 The 1979 Egypt-Israel Peace Treaty and the 1994
Jordan-Israel Peace Treaty were concluded without prejudice to the status of territories that
came under Israeli control in 1967,67 thus again leaving sovereignty over them in abeyance.
31. In 1993, Israel and the Palestinians agreed to settle their dispute – including their competing
claims to the West Bank and the Gaza Strip – through bilateral negotiations leading to a just and
lasting peace. The Interim Agreement concluded between the parties with the encouragement of
the international community in 1995 stipulates that no side may “change the status of the West
Bank and the Gaza Strip pending the outcome of permanent status negotiations”.68 The
Palestinians have systematically and repeatedly violated the agreements reached with Israel,
including by supporting terrorism and by the very attempt to unilaterally assert statehood before
the ICC, yet this does not absolve them from their obligations thereunder. Permanent status
negotiations have not yet been concluded,69 and sovereignty over the West Bank and the Gaza
Strip thus remains in abeyance to the present day.
32. In these circumstances, it is clear that the Palestinian entity does not now hold, nor has it ever
held, sovereign title over the West Bank and the Gaza Strip, a territory that in fact has always
been under the effective control of others. Recent revisionist attempts to argue otherwise simply
cannot be sustained by the legal and historical record, including the Palestinians’ own narrative
over the decades.70
the needs of the situation. … We meant that the occupied territories could not be held merely because they were
occupied, but we deliberately did not say that the old line, where the troops happened to be on that particular night
many years ago, was an ideal demarcation line”: An Interview with Lord Caradon, 5(3/4) J. Palestine Stud. 142, 144-
145 (1976). The resolution itself acknowledges that borders have yet to be determined, and that any such determination
ought to be made through “a peaceful and accepted settlement”.
66 Peace Treaty between Israel and Egypt, Egypt-Isr., art. II, 26 Mar. 1979, 1138 U.N.T.S. 59, preambular para. 1;
Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, Isr.-Jordan, art. 3(1)-(2), 26 Oct.
1994, 2042 U.N.T.S 351, preambular para. 3; Israeli-Palestinian Interim Agreement on the West Bank and the Gaza
Strip, 28 Sep. 1995, at preambular paras. 5 and 6.
67 With the exception of the Sinai Peninsula. See Peace Treaty between Israel and Egypt, ibid., art. II; Treaty of Peace
between the State of Israel and the Hashemite Kingdom of Jordan, ibid., arts. 3(1) and (2).
68 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XXXI (7). Israel’s
disengagement from the Gaza Strip in 2005 did not mark a renunciation of its claim to the territory, nor did it alter the
legal situation by which sovereignty over the Gaza Strip remains in abeyance, and the Interim Agreement applies to it
(mutatis-mutandis). As was stated by the Israeli Government, “[t]he process set forth in the [disengagement] plan is
without prejudice to the relevant agreements between the State of Israel and the Palestinians. Relevant arrangements
shall continue to apply”: Israeli Cabinet Resolution regarding the Disengagement Plan, Government Decision No.
1996, Revised Disengagement Plan, Addendum A, para. 1(7) (6 Jun. 2004).
69 Israel’s willingness to resume permanent status negotiations without further delay has been repeatedly stated,
including in recent years and by the highest levels of Government. On the Palestinian approach, see, for example, BILL
CLINTON, MY LIFE 944-945 (2005) (“Arafat’s rejection of my proposal after Barak accepted it was an error of historic
proportions”); the Palestinians have similarly rejected or refused to respond to other compromise proposals, including
those made in the Proximity Talks process (May-September 2010); the Quartet’s 2011 proposal (September 2011); the
Amman rounds (January 2012); and the Kerry Framework negotiations (July 2013-April 2014).
70 See also infra note 106.
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33. The Palestinian entity does not meet the established criteria for statehood under
international law, including effective control. It is well established in international law that the
creation of a State requires, inter alia, a government with full governmental powers over the
territory that it claims.71 The Palestinian entity, however, has never possessed – and does not
now possess, either in law or in fact – key elements of such effective territorial control.
34. The Palestinian Authority (“PA”) is a legal entity created by the bilateral agreements entered
into by the PLO and Israel, and possesses only those powers specifically transferred to it under
these agreements. The agreements explicitly state that Israel maintains all residual powers and
responsibilities not transferred to the Palestinian Authority: “the jurisdiction of the [Palestinian
Authority] will cover West Bank and Gaza Strip territory … except for: … powers and
responsibilities not transferred to [it]”.72 Israel is thus “the fount of authority and the retainer of
residual powers”,73 which again indicates that the Palestinians do not have sovereignty.
35. More specifically, the bilateral Israeli-Palestinian agreements provide for the transfer to the
Palestinians of only limited powers, which do not come close to effective control: the
Palestinian Negotiations Support Unit has itself concluded that “[t]he administrative powers
accorded to the PA by the Interim Agreements are much more limited than the powers of a
government”.74 Significantly, Israel retains control over external security, as the Interim
71 See the rules of international law enshrined in the Montevideo Convention on Rights and Duties of States, art. 1, 26
Dec. 1933, 165 L.N.T.S. 19. This has also been the approach of the International Criminal Tribunal for the former
Yugoslavia in Prosecutor v. Slobodan Milošević, supra note 50, at para. 86: “These four criteria [enumerated in Article
1 of the Montevideo Convention] have been used time and again in questions relating to the creation and formation of
states. In fact, reliance on them is so widespread that in some quarters they are seen as reflecting customary
international law”. As Oppenheim’s International Law puts it, “[a] state proper is in existence when a people is settled
in a territory under its own sovereign government. … There must … be a sovereign government. Sovereignty is
supreme authority, which on the international plane means not legal authority over all other states but rather legal
authority which is not in law dependent on any other earthly authority. Sovereignty in the strict and narrowest sense of
the term implies, therefore, independence all round, within and without the borders of the country”: ROBERT JENNINGS
& ARTHUR WATTS, OPPENHEIM’S INTERNATIONAL LAW: PEACE, vol. 1, pp. 120, 122 (9th ed., 2008) (emphasis in
original). See also Crawford 2006, supra note 41, at p. 46 (“the right to be a State is dependent at least in the first
instance upon the exercise of full governmental powers with respect to some area of territory”); MALCOLM N. SHAW,
INTERNATIONAL LAW 157 (8th ed., 2017). Even if some suggest that a more flexible approach to this condition may be
adopted when considering the situation of an existing State, it has been applied strictly when considering the possible
creation of a new State: Crawford 2006, supra note 41, at p. 59; see also para. 41 below.
72 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII(1). See also art.
I(1) (“Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military
government and its Civil Administration to the Council in accordance with this Agreement. Israel shall continue to
exercise powers and responsibilities not so transferred”); art. I(5) (“… The withdrawal of the military government shall
not prevent it from exercising the powers and responsibilities not transferred to the Council”); and art. XVII(4)(a)
(“Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the
Council, powers and responsibilities not transferred to the Council and Israelis”).
73 YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION 58 (2009). See also Joel Singer, The
Oslo Peace Process – A View from Within, in NEW POLITICAL ENTITIES IN PUBLIC AND PRIVATE INTERNATIONAL LAW
WITH SPECIAL REFERENCE TO THE PALESTINIAN ENTITY 17, 49 (A. Shapira and M. Tabory eds., 1999) (“It is noteworthy
that the possession of residual powers is normally an indicia of being the source of authority”).
74 Internal Memorandum from the Negotiations Support Unit to Dr. Saeb Erekat entitled “Implications of Change in de
facto Control in Gaza” (19 Jun. 2007), available at
http://www.ajtransparency.com/en/projects/thepalestinepapers/20121822587187346.html (last accessed: 19 Dec. 2019)
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Agreement specifies that “Israel shall continue to carry the responsibility for defense against
external threats, including the responsibility for protecting the Egyptian and Jordanian borders,
and for defense against external threats from the sea and from the air, as well as the
responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding
their internal security and public order, and will have all the powers to take the steps necessary
to meet this responsibility”.75 The Palestinians also lack any control over other key attributes of
sovereignty, such as airspace76 and major aspects of tax collection;77 and the Palestinian
Authority’s criminal jurisdiction is very much limited.78 Significantly, the exercise of some
powers, such as the use of the electromagnetic sphere and the establishment of
telecommunication networks, is subject to Israeli cooperation or consent.79 The provision of
certain monetary services is similarly dependent upon Israeli authorization.80 All of this is
certainly not “exclusive and complete authority”, which the OTP itself has found to be required
for purposes of exercising the Court’s jurisdiction.81 Moreover, any limited powers that the
Palestinian Authority does hold are anyway confined by the agreements both geographically (to
certain designated areas) and in personam (only to Palestinians and non-Israelis).82
36. Despite their repeated breaches by the Palestinians, the bilateral Israeli-Palestinian agreements
continue to form the applicable legal framework governing the conduct of the parties. This has
repeatedly been acknowledged by the parties, including most recently83 and in writing,84
(acknowledging also that “[t]he [Occupied Palestinian Territory] should not be treated as a state since it lacks the
attributes of statehood”).
75 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XII(1). Under the
Agreement, Israel transferred to the Palestinian Authority certain powers relating only to internal security (arts. XII-XIII
and arts. IV-VI of Annex I); it also transferred some powers pertaining to certain civil affairs such as education,
municipal matters, and health (for example, Annex III, Appendix I, arts. 9, 17, 20, 36, 37).
76 Ibid., Annex I, art. XIII (4): “All aviation activity or use of the airspace by any aerial vehicle in the West Bank and
the Gaza Strip shall require prior approval of Israel”.
77 See, for example, 1994 Agreement on the Gaza Strip and the Jericho Area, Annex IV: Protocol on Economic Relation
between the Government of the State of Israel and the P.L.O., representing the Palestinian people, art. III, VI, April 29,
1994.
78 See paras. 56-60 below.
79 Id., at Annex III, arts. 28 and 36(A)(2)(a).
80 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, at Annex III, art. 29.
81 Report on Preliminary Examination Activities 2019, supra note 12, at para. 48. The OTP quotes in this context the
well-known Award in the Island of Palmas case, in which it has also been stated, inter alia, that “[s]overeignty in the
relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the functions of a State. … Territorial sovereignty, as has already been said,
involves the exclusive right to display the activities of a State”: Island of Palmas, supra note 18, at pp. 838-839
(emphasis added).
82 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII (2)(a) and
Annex III. Israel transferred to the Palestinian Authority certain legislative powers that in any event “shall not derogate
from Israel’s applicable legislation over Israelis in personam” (ibid., arts. XVIII (4) and XVII(4)).
83 See, for example, President Abbas meets Palestinian community in US on sidelines of 74th session of UN General
Assembly in New York, WAFA (23 Sep. 2019), available at
http://english.wafa.ps/page.aspx?id=Crv2Xia113546988159aCrv2Xi (last accessed: 19 Dec. 2019); President Abbas:
All agreements with Israel will end once it annexes any part of the Palestinian territory, WAFA (9 Sep. 2019),
available at http://english.wafa.ps/page.aspx?id=hPcYhZa111508333233ahPcYhZ (last accessed: 19 Dec. 2019);
President Mahmoud Abbas’s address to foreign ministers of the Arab League on 21 April 2019, in which he said that
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
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despite isolated political statements to the contrary by some Palestinian officials.85 Current
ongoing engagement between Israeli and Palestinian officials is indeed based on the
agreements, with bilateral discussions underway in recent months within the framework of joint
committees established by the Interim Agreement to facilitate further implementation thereof in
various fields such as security, water, and sewage management. Moreover, several agreements
have been reached in these fields between the two sides in recent years, with explicit reliance
on the terms of the Interim Agreement. The international community, too, has reiterated on
numerous occasions its support for the existing bilateral agreements as an applicable legal
framework for settling the Israeli-Palestinian conflict and determining the sovereign status of
the territory in dispute.86
37. Also of note is that the Palestinian Authority does not exercise control over the Gaza Strip,87
where more than 40 percent of the Palestinian population resides.88 Nor does it exercise control
“we [the PA] are committed to all the agreements” (video recording available at
https://www.youtube.com/watch?v=NsW3gPt9Tio (minutes 7:45-8:30) (last accessed: 19 Dec. 2019)); President says
he is ready to sever all ties with Israel if it keeps ignoring agreements, WAFA (3 July 2019), available at
http://english.wafa.ps/page.aspx?id=YKo1zda110829733344aYKo1zd (last accessed: 19 Dec. 2019) (“If it continues in
not honoring them, we will cancel all the agreements between us no matter what will happen”); President Mahmoud
Abbas’s address to the UN Security Council: UN S.C, 8183rd meeting, U.N. Doc. S/PV.8183, 9 (20 Feb. 2018)
(referring to existing obligations under the Oslo Accords of 1993). Palestinian statements from recent years, claiming
that Israel has violated the Agreements, similarly indicate the Palestinians’ view that the Israeli-Palestinian agreements
are indeed in force: see Palestinian cabinet condemns Israel’s decision to cut tax revenues, WAFA (19 Feb. 2019),
available at http://english.wafa.ps/page.aspx?id=c1pseca108483662199ac1psec (last accessed: 19 Dec. 2019); Abbas:
Liberman Violated Oslo Accords by Naming PNF a Terror Organization, THE JERUSALEM POST (17 Mar. 2017),
available at https://www.jpost.com/Arab-Israeli-Conflict/Abbas-Liberman-violated-Oslo-accords-by-naming-PNF-aterror-
organization-484448 (last accessed: 19 Dec. 2019).
84 For example, several bilateral agreements signed in 2015, 2016 and 2017 in connection with electricity, water,
telecommunications, and postal issues, all refer in explicit terms to the Interim Agreement and are said to be concluded
pursuant to it. See also Adam Rasgon, Tovah Lazaroff and Sharon Udasin, Israel gives Pal. Authority limited water
autonomy in West Bank, THE JERUSALEM POST (17 Jan. 2017), available at http://www.jpost.com/Arab-Israeli-
Conflict/Israel-gives-Pal-Authority-limited-water-autonomy-in-West-Bank-478672 (last accessed: 19 Dec. 2019);
Israel, Palestinians sign 3G mobile network agreement, REUTERS (19 Nov. 2015), available at
https://www.reuters.com/article/us-israel-palestinians-3g-idUSKCN0T81MS20151119 (last accessed: 19 Dec. 2019);
Israel, PA sign deal on massive Palestinian electricity bill, THE TIMES OF ISRAEL (13 Sep. 2016), available at
https://www.timesofisrael.com/israel-pa-sign-deal-on-massive-palestinian-electricity-bill/ (last accessed: 19 Dec. 2019).
85 Such statements clearly do not amount to a notice of denunciation or withdrawal, and cannot have any such effect. In
any event, Israel has never received any such notice.
86 See, for example, G.A. Res. 73/19, U.N. Doc. A/RES/73/19, preambular para. 25 and operative paras. 16 and 19 (23
Jan. 2019); G.A. Res. 73/256, U.N. Doc. A/RES/73/256, preambular para. 2 (5 Dec. 2018); S.C. Res. 2334, U.N. Doc.
S/RES/2334, para 8 (23 Dec. 2016); G.A. Res. 67/19, supra note 35, at para. 5.
87 Despite several attempts at unity, the division between Hamas in the Gaza Strip and the Palestinian Authority in the
West Bank persists, with different authorities administering those territories. See, for example, the Palestinian position
recorded in the Report of the detailed findings of the independent commission of inquiry established pursuant to Human
Rights Council resolution S-21/1, U.N. Doc. A/HRC/29/CRP.4, para. 666 (24 Jun. 2015): “The Palestinian Authority
claims that its failure to open investigations results from insufficient means to carry out investigations in a territory over
which it has yet to re-establish unified control”.
88 See also UN Security Council, Report of the Committee on the Admission of New Members Concerning the
Application of Palestine for Admission to Membership in the United Nations, para. 12, U.N. Doc. S/2011/705 (11 Nov.
2011): “… it was stated that Hamas was in control of 40 per cent of the population of Palestine; therefore the
Palestinian Authority could not be considered to have effective government control over the claimed territory”.
STATE OF ISRAEL
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in as much as 60 percent of the West Bank area claimed by the Palestinians to be theirs. This is
quite apart from the fact that the Palestinians neither have nor exercise any powers over
Jerusalem.
38. The Palestinians themselves claim that Israel is occupying the Gaza Strip, the West Bank and
east Jerusalem,89 thus suggesting that Israel has effective control over these territories to the
exclusion of others.90 Under such circumstances, occurring since 1967, the essential criterion of
effective territorial control clearly cannot be met: if the territory is occupied, then the effective
control over it must by definition rest with Israel, not with the Palestinians. The Palestinians’
own Negotiations Support Unit has indeed recognized that “ending the occupation … is a basic
requirement for creation of a sovereign Palestinian state”.91 In a legal memorandum dealing
specifically with Palestinian strategy before the ICC, it thus concluded that the claim that Israel
is occupying the West Bank and the Gaza Strip creates an insurmountable obstacle in
establishing ICC jurisdiction over the “Situation in Palestine”, as “a state will only emerge upon
termination of Israeli occupation”.92
39. Needless to say, Israel’s presence in the West Bank is fully in accordance with international
law: Israel gained control over the territory in an act of lawful self-defense;93 it applies the
humanitarian provisions of the international law of occupation (despite its principled position
that they do not apply de jure);94 and it has repeatedly expressed its commitment to negotiate
with the Palestinians this state of affairs. As recognized in the agreements already concluded
between Israel and the Palestinians and Security Council resolution 242,95 the withdrawal of
Israeli armed forces and the determination of secure and recognized boundaries is a matter for
89 See, for example, the official statement entitled Borders, found at the Palestinian Liberation Organization –
Negotiation Affairs Department website, available at https://www.nad.ps/en/our-position/borders (last accessed: 19
Dec. 2019) .
90 That occupation of a territory requires the exercise of control to the exclusion of others is firmly established in
international law and practice. See, for example, Convention (IV) respecting the Laws and Customs of War on Land
and its annex: Regulations concerning the Laws and Customs of War on Land, art. 42, 18 Oct. 1907, 205 C.T.S. 277;
The Prosecutor v. Naletilic et al., IT-98-34-T, Judgement, para. 217 (31 Mar. 2003); The United Kingdom Ministry of
Defence, Joint Service Manual of the Law of Armed Conflict, JSP 383, [11.3] (10 Feb. 2004); United States
Department of Defense, Law of War Manual, [11.2.2.2] (June 2015). For the view of publicists, see, for example, Adam
Roberts, What is Military Occupation?, 55(1) BRIT. Y.B INT’L L. 249, 300-1 (1985); Dinstein, supra note 73, at pp. 42-
43.
91 Memorandum from the Negotiations Support Unit to Palestinian Leadership entitled “Legal approaches to be
advanced at the ICC in order to protect overall Palestinian strategy and realize rights and interests” (25 Mar. 2009),
available at http://www.ajtransparency.com/en/projects/thepalestinepapers/201218205613718519.html (last accessed:
19 Dec. 2019).
92 Ibid. The memorandum explains that arguing that the “State of Palestine” came into existence during the occupation
is “NOT RECOMMENDED” (emphasis in original), given that “[i]t will be very difficult to meet the Montevideo
criteria for statehood (i.e., permanent population, defined territory, effective government and capacity to enter into
foreign relations) under current circumstances. This is because a state of occupation arguably negates the effective
control required for the emergence of a state”.
93 See also YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 192 (4th ed., 2004).
94 See also Meir Shamgar, The Observance of International Law in the Administered Territories, 1 ISRAEL Y.B HUM.
RTS. 262 (1971), in which the Israeli Government’s position was first presented by the then Attorney General of Israel.
95 See para. 30 above.
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peace negotiations between the parties. The continued exercise of authority by Israel in this
territory, pending such negotiations, is thus consistent with applicable international law and
existing bilateral agreements. Any claim that Israel’s presence in the West Bank amounts to
“unlawful occupation” is thus without any merit.96
40. A right of self-determination must not be conflated with statehood. International law clearly
distinguishes between self-determination and the legal status of statehood: while the former
concerns the right of peoples to determine their political condition and to pursue freely their
economic, social and cultural development, the latter is merely one possible outcome of the
realization of such a right.97 Therefore, recognition of the right of the Palestinians to selfdetermination
does not amount to recognition of an already existing sovereign Palestinian
State, and cannot of itself establish one. Statements made on the international plane in reference
to the right of the Palestinians to self-determination indeed describe Palestinian statehood as an
aspiration, and not as an existing legal fact.98 Cassese has thus opined, after indicating that
“there is no agreement … on the exact territory in which the [Palestinian] right to selfdetermination
is to be exercised”, that “[t]he only indications that can be drawn from the
international legal rules and UN resolutions are to the effect that the right must be exercised
peacefully, that is, through negotiations between all the parties concerned and on the basis of
96 The Israeli presence in the West Bank is indeed markedly different from such situations where an occupation has
resulted from a breach of the jus ad bellum, as was the case, for example, with the Iraqi occupation of Kuwait, or
Uganda’s occupation of the DRC (see Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 116, paras. 259, 345, (19 Dec. 2005)). In these cases, as with the
occupation of Namibia by South Africa, the illegality of the occupation as a matter of international law was determined
by the Security Council, the International Court of Justice, or both. It is noteworthy that even the finding that Namibia
was unlawfully occupied did not – and indeed could not – of itself give rise to Namibian statehood: see infra note 98.
97 See also Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, 2019 I.C.J 169, paras. 156-157 (25 Feb. 2019); Crawford 2006, supra note 41, at p. 446 (“… international law
has distinguished between the right to self-determination and the actual achievement of statehood, and for good
reason”); DAVID RAIČ, STATEHOOD AND THE LAW OF SELF-DETERMINATION 444-445 (2002); Shaw, supra note 71, at p.
204; Christian Tomuschat, Secession and Self-Determination, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 23,
24 (Marcelo G. Kohen ed., 2006). This distinction continues to be upheld in international practice: even in cases where
a right of self-determination had garnered considerable international support as a foundation for the establishment of a
State, that State only came into being once the legal requirements for statehood had been met. One important example is
that of Namibia, the statehood of which was attained only following the end of South Africa’s occupation. As may be
recalled, South Africa’s administration of the territory of South West Africa (that later became Namibia) was authorized
by a League of Nations Mandate, which was terminated by the United Nations in 1966. After South Africa’s subsequent
refusal to withdraw from the territory, its occupation thereof was determined by the UN Security Council to be illegal
and was met by international sanctions and by UN General Assembly support for the armed struggle of the Namibian
people for independence. Even under these extreme and unprecedented circumstances, Namibia was only established as
a State after the conclusion of an agreement between South Africa, Angola and Cuba, which provided that “[a]ll
military forces of the Republic of South Africa shall depart Namibia in accordance with UNSCR 435/78”, and that
South Africa shall “co-operate with the Secretary-General to ensure the independence of Namibia through free and fair
elections …” (Agreement among the People’s Republic of Angola, the Republic of Cuba, and the Republic of South
Africa, arts. 2, 3, 22 Dec., 1988, A/43/989, S/20346). On this particular matter see also Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, paras. 90-103, 108-116 (21 Jun. 1970); Crawford
2006, supra note 41, at pp. 439-440, 595-596.
98 See paras. 21 above and 43 below.
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the freely expressed wishes of the population of the territories”.99 This is consistent with the
approach of the international community, which repeatedly calls for a negotiated solution for
purposes of realizing the Palestinian right to self-determination.
41. Any suggestion that the substantive requirement of effective government may be relaxed in
favor of State creation in pursuance of self-determination is of no avail. Those advocating this
controversial position refer to a handful of cases that do not sufficiently lend themselves to any
such generalization. What is more, such cases that have been referred to have no bearing on the
present circumstances, as they concern situations where the entity claiming statehood had, at
the relevant time, an exclusive claim to the relevant territory (with previous conflicting claims
having by then been withdrawn).100 In the present case, however, Israel has a longstanding
claim to the West Bank and the Gaza Strip, and Israel and the Palestinians have explicitly
agreed under existing agreements to settle their conflicting claims peacefully through
negotiation.101 Furthermore, the cases concerned were such in which the right to selfdetermination
was forcibly prevented, including in the colonial context.102 This is certainly not
the situation in the Israeli-Palestinian case, in which Israel has not only recognized the
Palestinian right to self-determination and facilitated Palestinian self-governance through
bilateral agreements that established the Palestinian Authority, but has also agreed to further
promote Palestinian self-rule and has repeatedly engaged in negotiation efforts for this purpose,
to which it remains committed. To argue that Palestinian self-determination has not yet been
fully realized as a result of alleged Israeli wrongdoing, would be to ignore repeated
international and Israeli offers over the decades to enable the emergence of a Palestinian State
that were all rejected by the Palestinian side.103 Seeking to label Israel as arbitrarily denying
Palestinian self-determination would thus not only be fundamentally untrue, but would require
the adoption of a particular political and partisan narrative in a manner clearly inappropriate for
any court of law, let alone an international criminal court.
42. Palestinian claims regarding recognition are wholly misleading and, in any event, are not
constitutive of statehood. Under international law, recognition is not constitutive of statehood
and cannot supersede or replace the factual and legal requirements of statehood, nor indeed
compensate for their absence.104 A Palestinian claim to statehood based on alleged recognition
99 CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 240-241 (1995).
100 For example, both the Democratic Republic of Congo and Guinea-Bissau, and also Bangladesh, were only
established as States, and admitted to the UN, following the express agreement of the State formerly claiming the
territory. In the case of the Baltic States, the UN Security Council did not consider their applications for UN
membership until after the Soviet Union (that annexed their territories in 1940) agreed to recognize them as States. See
also Crawford 2006, supra note 41, at pp. 57-58, 140-142, 181, 394-395.
101 See also para. 31 above.
102 See, for example, the case of Namibia: supra note 97.
103 Supra note 71.
104 See, for example, Crawford 2006, supra note 41, at p. 93 (“[a]n entity is not a State because it is recognized; it is
recognized because it is a State”). The Badinter Arbitration Commission on Yugoslavia similarly noted that “a state’s
existence or non-existence had to be established on the basis of universally acknowledged principles of international
law concerning the constituent elements of a state”, and that “recognition of a state by other states has only declarative
STATE OF ISRAEL
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of “Palestine” by any number of States is thus of no legal significance in the present context.
What is more, the claim does not withstand any serious factual scrutiny.
43. First, over two-thirds of the alleged recognitions relied on by the Palestinians were made in
connection with the so-called Palestinian Declaration of Independence of 1988, yet the
Palestinians have themselves conceded that no Palestinian State had existed either then or
decades thereafter.105 Such recognitions cannot therefore be relied upon. Second, many States
that are alleged to have recognized “Palestine” continue to refer to a sovereign Palestinian State
as a future aspiration only, and others have made it clear that, in fact, they do not recognize a
Palestinian State to be in existence.106 Needless to say, this is also the position of a significant
number of additional States, as the Palestinians would surely acknowledge.107 All things
value”: Opinion No. 8 of Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising From the
Dissolution of Yugoslavia, 31(6) I.L.M. 1488, 1522-1523 (Nov. 1992).
105 In 1998, for example, Yasser Arafat, Chairman of the Palestinian Authority, stated that “The Palestinian people were
determined to declare independence …”: Press Release, General Assembly, Chairman Arafat Says Palestinians Need
Worldwide Support More Than Ever to Make Independence a Reality, U.N. Press Release Ga/PAL/788 (30 Nov. 1998).
In the same vein, Mahmoud Abbas, then Secretary-General of the PLO Executive Committee, stated in 2000 that “[a]
declaration of an independent state is a right our people can execute at any time. In 1988, when we declared our state in
exile, more than 100 countries recognized that declaration. But recognition of a state on the ground is different tha[n]
that of a state in exile. And though many nations have said they are in favor of an independent state many hinted of the
necessity to declare once prepared on the ground and or after an agreement between the sides is reached. And so we
must now stop and think”: Abu Mazen’s Speech at the Meeting of the PLO’s Central Council, 9 September 2000, UN
press release, available at https://unispal.un.org/DPA/DPR/unispal.nsf/0/172D1A3302DC903B85256E37005BD90F
(last accessed: 19 Dec. 2019). In their submission to the International Court of Justice in 2004, in the course of the Wall
advisory proceedings, the Palestinians also explicitly acknowledged that a Palestinian State has yet to emerge: Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, Written
Statement submitted by Palestine, para. 375 (29 Jan. 2004) (“… the fact is that Israel remains in overall control of this
territory and Israeli forces remain in occupation of the West Bank, including East Jerusalem, and the Gaza Strip. These
areas are together referred to as the ‘Occupied Palestinian Territory’, because the territory is not part of the territory of
the State of Israel; it is territory of the Palestinian people, destined for a Palestinian State …” (emphasis added)).
106 See, for example, Official Records of the General Assembly, supra note 40. For more recent views, see, for example,
Narendra Modi, Prime Minister of India, Speech Delivered During a Joint Conference With President Mahmoud Abbas
(10 Feb. 2018), available at https://www.diplomaticsquare.com/india-hopes-that-palestine-will-soon-be-a-sovereigncountry-
achieved-in-a-peaceful-manner/ (last accessed: 19 Dec. 2019) (“India hopes that soon Palestine will become a
sovereign and independent country in a peaceful manner”); President Xi’s Speech at Arab League Headquarters: Full
Text, CHINA DAILY (22 Jan. 2016), available at http://www.chinadaily.com.cn/world/2016xivisitmiddleeast/2016-
01/22/content_23191229.htm (last accessed: 19 Dec. 2019) (“China firmly supports the Middle East peace process and
supports the establishment of a State of Palestine enjoying full sovereignty …”); Adam Withnall, Vladimir Putin says
Russia will fight for right of Palestinians to their own State, THE INDEPENDENT (29 Mar. 2015), available at
https://www.independent.co.uk/news/world/middle-east/vladimir-putin-says-russia-will-fight-for-the-right-ofpalestinians-
to-their-own-state-10141902.html (last accessed: 19 Dec. 2019) (quoting the Russian President as saying
that “Palestinians have the right to establish an independent and habitable state …”).
107 States not recognizing “Palestine” as a State include Australia, Austria, Belgium, Canada, Cameroon, Denmark,
France, Germany, Japan, Mexico, Netherlands, New Zealand, Norway, Panama, Singapore, South Korea, Switzerland,
the United Kingdom, and the United States. Such positions have sometimes been put on record, inter alia, in
communications with the UN Secretary-General as depositary, and in the context of United Nations debates or
international statements and instruments: see, for example, Depositary Notification, C.N.363.2018.TREATIES-X.10
(Canada: Communication) (27 Jul. 2018) available at https://treaties.un.org/doc/Publication/CN/2018/CN.363.2018-
Eng.pdf (last accessed: 19 Dec. 2019); Depositary notification C.N.295.2018.TREATIES-XXVI.3 (United States of
America: Communication) (18 Jun. 2018), available at https://treaties.un.org/doc/Publication/CN/2018/CN.295.2018-
Eng.pdf (last accessed: 19 Dec. 2019); Diplomatic Note of the Federal Republic of Germany to the Implementation
STATE OF ISRAEL
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considered, it is clear that Palestinian statehood has not won even the quasi-unanimous support
(even among States Parties to the Rome Statute) that may arguably be said to be indicative of
the existence of a Palestinian State, and the claim concerning recognition of “Palestine” simply
cannot stand.
44. In the same vein, any participation of “Palestine” in multilateral treaties neither implies nor
constitutes recognition of Palestinian statehood by any or all of the other parties to those
treaties: “it is generally accepted that participation in the same multilateral treaty does not
signify mutual recognition, even implicit”.108 This is because being a nominal “State Party” by
virtue of a procedural or political act is not the same as being a State as a matter of international
law. The same may be said of participation in international fora, and States have indeed noted
expressly that Palestinian participation in the ASP is without prejudice to the question of
Palestinian statehood.109
45. The Palestinian claim to statehood is legally incoherent and often self-contradictory. The
Palestinian claim to statehood is routinely exposed as untenable by the Palestinians themselves.
Palestinian officials not only contradict themselves in claiming that the West Bank and the
Gaza Strip are occupied by Israel and at the same time are under Palestinian effective
control,110 but also frequently refer to Palestinian statehood as a future event. Three years after
“Palestine’s” purported accession to the Rome Statute, for example, President Abbas stated in
explicit terms that “[i]n due time there will be a Palestinian State but this will not happen soon.
We are building the Palestinian State one step at a time, and this takes time”.111 Palestinian
Support Unit for the Biological Weapons Convention within the Geneva Branch of the United Nations Office for
Disarmament Affairs, No. 27/2018 (11 Dec. 2018); Meeting of the States Parties to the Convention on the Prohibition
of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Explanation of
Position on the “State of Palestine” Submitted by Australia, Canada, Germany and Netherlands,
APLC/MSP.17/2018/MISC.2 (3 Dec. 2018), available at https://undocs.org/APLC/MSP.17/2018/MISC.2 (last
accessed: 19 Dec. 2019).
108 Report of the International Law Commission, Sixty-third session (26 April-3 June and 4 July-12 August 2011), U.N.
Doc. A/66/10/Add.1, pp. 95-96 (2011). See also ROBERT KOLB, THE LAW OF TREATIES: AN INTRODUCTION 34 (2016)
(“… with regard to multilateral treaties … ratification or accession does not imply a recognition of the other States
parties. … It is also possible to enter an understanding whereby the ratification or accession to that treaty does not imply
recognition of a particular State. … Even without the statement made in the understanding, recognition would not ensue
under international law. The statement is thus merely of a political nature. It is made either on account of ignorance of
the law or ex abundante cautela, or else to show political correctness”); Jean-François Marchi, Art.15: 1969 Vienna
Convention, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 308, 320-321 (Olivier Corten
and Pierre Klein eds., 2011) (“The principle is well established that the participation of a State in the treaty will not
therefore result in the formal recognition of the aforementioned party as a State”); para. 24 above.
109 See Statement by Canada, Germany, the Netherlands and the United Kingdom of Great Britain and Northern Ireland
in explanation of their position concerning the use of the term ‘State of Palestine’, Bureau of the Assembly of States
Parties, 7th meeting, Annex II (15 Nov. 2016), available at https://asp.icc-cpi.int/iccdocs/asp_docs/Bureau/ICC-ASP-
2016-Bureau-07-15Nov2016.pdf (last accessed: 19 Dec. 2019): “… Consistent with our reiterated positions in other
international fora we hold the view that the designation ‘State of Palestine’ as used in some of these reports shall not be
construed as recognition of a State of Palestine and is without prejudice to individual positions of States Parties on this
issue”.
110 See also para. 38 above.
111 President Mahmoud Abbas’s interview to the Egyptian Channel CBC (3 Oct. 2017), available at
https://www.youtube.com/watch?v=huJVJK5FUf0 (translated from Arabic) (last accessed: 19 Dec. 2019).
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Prime Minister Hamdallah (as he then was) similarly stated as recently as in January 2019 that
“the very inception of a sovereign Palestinian state” has yet to happen, and that “… the
Palestinians have already prepared the institutional and legislative infrastructure that could be
put in service as a basis for the future Palestinian State”.112 Numerous other statements have
been made to the same effect,113 with official Palestinian sources frequently referring to
“national aspirations for statehood” and to a “future Palestinian state”.114
46. Similarly, in the Application submitted by the Palestinians to the International Court of Justice
in September 2018 concerning the relocation of the United States Embassy to Jerusalem it is
argued – in complete contradiction to the position expressed by the Palestinians before the ICC
– that Jerusalem and certain parts of the West Bank are corpus separatum over which neither
Israel nor the Palestinians have sovereignty.115 The former Palestinian Minister for Jerusalem
Affairs, Mr. Ziad Abuzayyad, has similarly stated in June 2018 that “the status of Jerusalem
under the international law is still defined … as an area of non-sovereignty”.116
47. Such contradictory positions on the most basic aspects of statehood suggest more than legal
confusion. They suggest that the Palestinians are attempting to gain the ICC’s recognition of a
sovereign status that they themselves acknowledge cannot credibly be claimed, having turned to
112 AL-HAYAT AL-JADIDA (20 Jan. 2019), available at http://www.alhayat-j.com/arch_page.php?nid=331747 (translated
from Arabic) (last accessed: 19 Dec. 2019).
113 See, for example, the recent speech by Saeb Erakat, Secretary-General of the Palestine Liberation Organization
Executive Committee, at the J Street National Conference (28 Oct. 2019), video available at
https://www.youtube.com/watch?v=7U6Wmmtp9T4&feature=youtu.be (minutes 11:48-11:50) (last accessed: 19 Dec.
2019) (“… a Palestinian State will be created”); President Abbas Welcomes Britain’s Prince William to Palestine,
WAFA (27 Jun. 2018), available at http://english.wafa.ps/page.aspx?id=TXHJYSa98232330636aTXHJYS (last
accessed: 19 Dec. 2019) (“I hope this will not be the last visit ... and that your next visit will be in the state of Palestine
when we have our full independence”); President Mahmoud Abbas’s Statement Before the UN Human Rights Council
(UNHRC) at the 34th Session held in Geneva (27 Feb. 2017), available at https://www.nad.ps/en/mediaroom/
speeches/he-president-mahmoud-abbas-statement-un-human-rights-council-unhrc-34th-session (last accessed: 19
Dec. 2019) (“The creation of the State of Palestine will undermine the driving force of terror and extremism …”); and
President Mahmoud Abbas’s Statement to the UN General Assembly 72nd Session (20 Sep. 2017), available at
https://www.nad.ps/en/media-room/speeches/he-president-mahmoud-abbas-statement-un-general-assembly-72ndsession-
2017 (last accessed: 19 Dec. 2019) (“Our choice is the two-State solution on the 1967 borders, and we will
grant every chance for the efforts being undertaken by President Donald Trump and the Quartet and international
community as a whole to achieve an historic agreement that brings the two-State solution to reality …”).
114 See various webpages on the website of the Palestinian Liberation Organization – Negotiation Affairs Department:
Security, available at https://www.nad.ps/en/our-position/security (last accessed: 19 Dec. 2019) (referring to a
Palestinian interest “in establishing a Palestinian state that will be recognized, that acts as an independent state and is
able to exercise its full rights and responsibilities as a sovereign nation”); Refugees (position), available at
https://www.nad.ps/en/our-position/refugees (last accessed: 19 Dec. 2019) (“The options for our refugees should be:
return to Israel, return/resettlement to a future Palestinian state, integration in host states, or resettlement in third-party
states” (emphasis added)); Claims resolution, available at https://www.nad.ps/en/our-position/claims-resolution (last
accessed: 19 Dec. 2019) (referring to “our future state”).
115 Relocation of the United Stated Embassy to Jerusalem (Palestine v. United States of America), Application
Instituting Proceedings (28 Sep. 2018), available at https://www.icj-cij.org/files/case-related/176/176-20180928-APP-
01-00-EN.pdf (last accessed: 19 Dec. 2019).
116 “The Legal Status of Jerusalem Under International Law”, address delivered by Mr. Abuzayyad during an
international conference entitled “International Conference on Question of Jerusalem: the Question of Jerusalem after
50 years of Occupation and 25 years of the Oslo Accords” (27 Jun. 2018).
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the Court in a calculated attempt to put to it questions that were explicitly agreed to be resolved
through bilateral negotiations.
48. All of the above makes it abundantly clear that no Palestinian State has ever been in existence.
Any other finding would strain the bounds of credulity and cannot be sustained either in fact or
in law. Given that the Court’s jurisdiction under Article 12(2) of the Rome Statute requires there
to be a sovereign State, the unavoidable conclusion must be drawn that the Court manifestly
lacks jurisdiction over the “situation in Palestine”. Needless to say, if no sovereign State exists,
there is no “territory of” that State within the meaning of Article 12(2) of the Statute over which
the Court may exercise territorial jurisdiction; and there is anyhow no sovereign ability to
prosecute that may be delegated to the Court either.
49. In any case, the scope of the territory concerned is undefined. As has already been noted,117
sovereignty over the West Bank and the Gaza Strip is presently in abeyance, with current
Israeli-Palestinian agreements explicitly enumerating “borders” among those issues to be settled
through bilateral permanent status negotiations.118 With delimitation of the territory yet to be
agreed, any exercise of territorial jurisdiction by the Court would not only require it to make a
determination wholly unsuitable for an international criminal tribunal,119 but would also
contravene the agreements reached between the parties and jeopardize efforts towards
reconciliation. This can be neither lawful nor legitimate.
50. Nor can any reliance be made on such terms as “the occupied Palestinian territory”, reference to
which, even if frequent in international discourse, is made in strictly political terms and without
prejudice to the fundamentally legal question of sovereign title. Indeed, such references are
habitually accompanied by an explicit call for negotiations between the parties for purposes of
reaching an agreement on territorial issues;120 and the texts in which they are contained anyway
117 See above paras. 27-32.
118 Declaration of Principles on Interim Self-Government Arrangements, art. V(3) (13 Sep. 1993).
119 Clearly, the ICC is not the appropriate forum to resolve territorial disputes. For the more general principle that an
international court ought not to rule on the rights, obligations and legal interests of a State which is not party to the
proceedings in question, see Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment,
2012 I.C.J. Rep. 99, para. 127 (3 Feb. 2012); Monetary Gold Removed from Rome in 1943 (Italy v. France; United
Kingdom and United States of America), Preliminary Question, 1954 I.C.J. Rep. 19, p. 32 (15 Jun. 1954); East Timor
(Portugal v. Australia), Judgment, 1995 I.C.J. Rep. 90, para. 34 (30 Jun. 1995); M/V Norstar (Panama v. Italy), Case
No. 25, Preliminary Objections – Judgement of Nov. 4, 2016, para. 172, available at
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/Judgment/C25_Judgment_04
.11.16_orig.pdf (last accessed: 19 Dec. 2019); Larsen v. Hawaiian Kingdom, para. 11.22 (Perm. Ct. Arb. 2001)
available at https://pcacases.com/web/sendAttach/123 (last accessed: 19 Dec. 2019).
120 See, for example, S.C. Res. 2334, supra note 86, at preambular para 10. G.A. Res. 67/19 that specifically mentions
that the issue of borders remains an outstanding core issue pending a permanent agreement between the parties (supra
note 35, at operative para. 5). See also, for example, Letter Dated 7 May 2003 from the Secretary-General addressed to
the Security Council, Annex: A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-
Palestinian Conflict, U.N. Doc. S/2003/529 (30 Apr. 2003), available at https://undocs.org/S/2003/529 (last accessed:
19 Dec. 2019) (later adopted by S.C. Res. 1515, U.N. Doc. S/RES/1515 (19 Nov. 2003)); S.C. Res. 1850, preambular
para. 4, U.N. Doc. S/RES/1850 (16 Dec. 2008); G.A. Res. 68/15, preambular paras. 21, 25, and operative para. 2, U.N.
Doc. A/RES/68/15 (26 Nov. 2013). Israel has consistently made it clear that the term “occupied Palestinian territory” is
without legal significance and cannot predetermine the outcome of a territorial dispute that the parties have agreed to
STATE OF ISRAEL
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lack any binding character. They cannot therefore be relied on for purposes of legal
determinations such as territorial delimitation or allocation of sovereignty.
51. The International Court of Justice, too, employed the term “Occupied Palestinian Territories” in
its Wall advisory opinion as it was included in the question put to the Court by the General
Assembly, and without making any legal determination as to sovereignty over the territory
concerned. Indeed, in briefly analyzing the status of the territory, the Court noted that the 1949
armistice demarcation lines between Israeli and Arab forces were explicitly agreed to be
“without prejudice to future territorial settlements or boundary lines or to claims of either Party
relating thereto” as well as to “an ultimate political settlement between the Parties”.121 It then
observed that the boundary fixed in 1994 by the peace treaty between Israel and Jordan was
“without prejudice to the status of any territories that came under Israeli military government
control in 1967”122 (as has also been agreed in the 1979 peace treaty between Israel and
Egypt123). By focusing next on the international law applicable to territories situated between
the Green Line and the former eastern boundary of Mandatory Palestine, the Court was able to
refrain from making any determination as to sovereignty over them:124 Judge Higgins made it
clear that “[t]he Court, wisely and correctly, avoid[ed] what we may term ‘permanent status’
issues”.125 Instead, the Court drew attention to the need for achieving “a negotiated solution to
the outstanding problems and the establishment of a Palestinian State”.126
52. Again, it should not go unnoticed that the Palestinians themselves have recently conceded that
the term “occupied Palestinian territory” cannot legally be taken to refer to “Palestinian”
territory, by submitting before the International Court of Justice that Jerusalem and significant
parts of the West Bank rather have the status of corpus separatum under international law.127
53. It may also be recalled that the OTP has clarified that any territory over which the Court may
exercise territorial jurisdiction must be a geographic area “under the sovereign power of a State
– i.e, the areas over which a State exercises exclusive and complete authority”.128 In these
circumstances, for the Court to arrogate to itself the right to make a finding of territory when the
resolve by negotiation: see, for example, U.N. GAOR 56th Sess., 87th plen. mtg., U.N. Doc A/56/PV.87 (14 Dec. 2001)
(Israel’s representative emphasizing “… once again that our having joined the consensus on draft resolution A/56/L.59
should not be interpreted as implicit evidence of any position with respect to the present or future status of occupied
Palestinian areas. We stress that a final decision on those areas will be reached through direct bilateral negotiations
between the parties”).
121 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004
I.C.J. 136, para. 72 (29 Jan. 2004).
122 Ibid., at para. 76.
123 Peace Treaty between Israel and Egypt, supra note 66, art. II.
124 Supra note 121, at para. 101.
125 Ibid., Separate opinion of Judge Higgins, at p. 211, para. 17.
126 Ibid., at p. 201, para. 162. Judge Owada referred in his Separate Opinion to “Palestine” as “an entity which is not
recognized as a State for the purpose of the Statute of the Court”: ibid., at p. 267, para. 19.
127 Application Instituting Proceedings, supra note 115.
128 See para. 35 above.
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
32
parties themselves have not yet agreed on the matter, and have not consented to the Court
playing that role, is legally untenable.
54. Under these conditions, it is clear that the existence and scope of a territory for purposes of
Article 12(2) of the Rome Statute cannot be established, and thus a precondition to the exercise
of the Court’s jurisdiction once again cannot be met.
E. EVEN IF THE ROME STATUTE IS MISINTERPRETED TO ALLOW FOR NON-SOVEREIGN ENTITIES
TO CONFER JURISDICTION UPON THE COURT, THE PALESTINIANS DO NOT HAVE JURISDICTION
OVER AREA C AND JERUSALEM AS WELL AS OVER ISRAELI NATIONALS, AND THUS CANNOT
VALIDLY DELEGATE IT TO THE COURT
55. As has been demonstrated, the exercise of jurisdiction by the ICC requires that there be a
sovereign State that has delegated to the Court its criminal jurisdiction on the basis of
territoriality and nationality, a precondition that is clearly not met in the present case. To this it
may now be added that even if the Rome Statue were to be misinterpreted so as to allow for
non-sovereign entities to confer jurisdiction upon the Court, the latter would still be
constitutionally constrained by the limits of delegation and unable to exercise jurisdiction where
the delegating entity has no jurisdiction to the extent required. Thus, in the present case, the
Court would have to satisfy itself that the Palestinian entity has jurisdiction corresponding to the
“situation in Palestine”. As is readily clear, however, it does not.
56. The Israeli-Palestinian Interim Agreement of 1995 explicitly stipulates that the Palestinians
have no criminal jurisdiction over Israeli nationals. In the part entitled ‘Jurisdiction’, which
defines in specific terms the limited scope of jurisdiction to be held by the Palestinian Authority,
the Agreement provides that “The territorial and functional jurisdiction of the [Palestinian
Authority] will apply to all persons, except for Israelis, unless otherwise provided in this
Agreement”.129
57. The Protocol Concerning Legal Affairs appended to the Interim Agreement further lays down
that:
“The criminal jurisdiction of the [Palestinian Authority] covers all offenses committed by
Palestinians and/or non-Israelis in the Territory, subject to the provisions of this Article. For
the purposes of this Annex, ‘Territory’ means West Bank territory except for Area C ..., and
Gaza Strip territory except for the Settlements and the Military Installation Area”.130
129 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII(2)(c) (emphasis
added). The exception refers to some civil matters as specified in Appendix 4, art. 3(2).
130 Ibid., at Annex IV, art. I(1)(a). The Interim Agreement makes it explicitly clear (in art. XVII) that any jurisdiction of
the Palestinian Authority within the West Bank and the Gaza Strip does not extend to Jerusalem. It may also be recalled
that the Palestinian Authority has not been exercising any jurisdictional powers over the Gaza Strip since Hamas
violently took over the territory in 2007: see also supra note 87.
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
33
58. As noted above, this and other agreements, which define comprehensively those powers
transferred to and vested in the Palestinian Authority, continue to govern the relationship
between Israel and the Palestinians to date.131 Any jurisdiction currently held by the Palestinians
derives from these bilateral agreements, under which Israel continues to hold all powers not
explicitly transferred to the Palestinians.132
59. To be clear, the Palestinians did not have any jurisdiction – prescriptive, adjudicative or
enforcement – prior to entering into the bilateral agreements with Israel. Jurisdiction over Israeli
nationals, Area C and Jerusalem is thus not something the Palestinian entity previously
possessed and then subsequently agreed to limit the exercise thereof: it never had it to begin
with, and certainly does not have it now, either in law or in fact. Even an expansive approach to
delegation that emphasizes the possession of prescriptive jurisdiction where the exercise of
adjudicative and enforcement jurisdiction is curtailed,133 would thus still run up against the
criminal jurisdictional capacity held by the Palestinian entity.
60. As the Palestinian entity has no criminal jurisdiction over either Israeli nationals or over Area C
and Jerusalem, it is therefore legally impossible for it to delegate any such jurisdiction to the
Court: nemo plus iuris transferre potest quam ipse habet (no one can transfer a greater right
than he himself has). Again, the fundamental precondition to the Court’s jurisdiction cannot be
met.
CONCLUSION
61. For the reasons specified above, the ICC manifestly lacks jurisdiction over the “situation in
Palestine”. As has been demonstrated, the necessary precondition to the Court’s jurisdiction
under Article 12(2) of the Rome Statute, which requires there to be a sovereign State that has
delegated to the Court criminal jurisdiction over its territory and nationals, cannot be met by
virtue of the simple fact that no sovereign Palestinian State is in existence. The events
surrounding the purely technical act of the purported accession of “Palestine” to the Rome
Statute, or the Palestinian purported Article 12(3) declaration, neither alter this conclusion nor
substitute for the substantive inquiry required for the establishment of the Court’s jurisdiction.
Moreover, even if a conclusion is erroneously reached that a sovereign Palestinian State exists,
the scope of the territory concerned is indeterminate and is clearly not for an international
criminal court to define; and if the Rome Statute is misinterpreted to allow for non-sovereign
entities to confer jurisdiction upon the Court, the latter would still lack jurisdiction over Area C
and Jerusalem as well as Israeli nationals.
131 See para. 36 above.
132 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII (4) (providing
that “(a) Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction
of the Council, powers and responsibilities not transferred to the Council and Israelis” (emphasis added)).
133 See Office of the Prosecutor, Situation in the Islamic Republic of Afghanistan - Public redacted version of “Request
for authorisation of an investigation pursuant to article 15”, ICC-02/17, p. 27, fn. 47 (20 Nov. 2017).
STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL
34
62. Ultimately, any conclusion that the requirements of Article 12(2) are met in the case of the
“situation in Palestine” would indeed require not one, but a series of highly dubious and
untenable legal determinations. It would run counter not only to the jurisdictional regime
carefully prescribed by the Rome Statute, but also to international law more broadly, both of
which serve to ensure that the Court’s competence is not abused or exercised on the basis of
arbitrariness or political prejudice. The OTP and the other organs of the Court have repeatedly
made it clear that the legitimacy and future of the ICC depend on its commitment to legal
impartiality and judicial independence. If these are to be more than mere words, then they must
actually guide, and be seen to guide, the decisions of the OTP and the Court itself. If they are
more than mere words, then the conclusion regarding the lack of jurisdiction in the present case
is not controversial, it is unavoidable.
63. Even if a sound legal analysis unavoidably leading to the conclusion that jurisdiction is lacking
may be unpopular with some at a time when the Israeli-Palestinian conflict still awaits its
resolution, nothing could be more harmful to the credibility and legitimacy of a court of law
than compromising its judicial character and appearing to over-reach. This would especially be
the case where consent to jurisdiction has not been given (such as where the conduct of a State
not Party to the Rome Statute is concerned), and where matters that are inherently ill-suited to
international criminal adjudication are perversely brought before the Court. It is again worth
recalling that the ICC Prosecutor herself, in the face of “arguments of some legal scholars that
fundamental jurisdictional rules can be made subject to a liberal and selective interpretation”,
has unequivocally confirmed in 2014 that where clear jurisdictional parameters are not met, the
exercise of jurisdiction “is neither good law nor makes for responsible judicial action.”134 That
remains ever as true today.
134 Statement of the Prosecutor of the International Criminal Court, supra note 4.
Annex 13
Joint Communique from the March 19 meeting in Sharm El Sheikh, 19
March 2023
U.S. Embassy in Israel
MEDIA NOTE
OFFICE OF THE SPOKESPERSON
MARCH 19, 2023
The following text reflects the Joint Communique following today’s meeting in Sharm El Sheikh Egypt:
At the invitation of the Arab Republic of Egypt, Jordanian, Israeli, Palestinian and U.S. political and
security senior officials met in Sharm El Sheikh, Egypt today, 19 March 2023, in furtherance of the
understanding reached in Aqaba, Jordan on 26 February 2023.
The five Parties held thorough discussions on ways and means to de-escalate tensions on the ground
between Palestinians and Israelis, in order to pave a way forward towards the peaceful settlement
between the Israelis and the Palestinians.
Towards achieving this purpose, and beginning implementation, the Parties have agreed to the
following:
1 – The Parties reaffirmed their commitment to advancing security, stability and peace for Israelis and
Palestinians alike, and recognized the necessity of de-escalation on the ground, the prevention of
further violence, as well as of pursuing confidence building measures, enhancing mutual trust, creating
political horizon, and addressing outstanding issues through direct dialogue.
2 – The Government of Israel and the Palestinian National Authority reaffirmed their joint readiness and
commitment to immediately work to end unilateral measures for a period of 3-6 months. This includes
an Israeli commitment to stop discussion of any new settlement units for 4 months, and to stop
authorization of any outposts for 6 months.
3 – The two sides reaffirmed, in this regard, their unwavering commitment to all previous agreements
between them, in particular, the legal right of the Palestinian National Authority to carry out the security
responsibilities in Area (A) of the West Bank, in accordance with existing agreements, and will work
together towards realizing this objective.
Joint Communique from the March 19 meeting in Sharm El Sheikh
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4 – The two sides agreed to develop a mechanism to curb and counter violence, incitement, and
inflammatory statements and actions, which will report to the quintet leadership in April, in a resumed
session of the meeting in Sharm El Sheikh.
5 – The two sides reaffirmed their commitment to all previous agreements between them, and
reaffirmed their agreement to address all outstanding issues through direct dialogue.
6 – The Parties agreed to establish a mechanism to take the necessary steps towards improving the
economic conditions of the Palestinian people, per previous agreements, and to significantly enhance
the fiscal situation of the Palestinian National Authority, which will report to the quintet leadership in
April, in a resumed session of the meeting in Sharm El Sheikh.
7 – They also reiterated the commitment of upholding unchanged the historic status quo at the Holy
Sites in Jerusalem, both in word and in practice, and reaffirmed in this context the importance of the
Hashemite Custodianship/special role of the Hashemite Kingdom of Jordan. They emphasized the
necessity of both Israelis and Palestinians to actively prevent any actions that would disrupt the
sanctity of these sites, inter alia during the upcoming Holy Month of Ramadan, which coincides with
Easter and Passover this year.
8 – The Parties reaffirmed the importance of maintaining the meetings under this format, and are
looking forward to cooperating with a view to consolidating the basis for direct negotiations between
the Palestinians and the Israelis, towards achieving comprehensive, just and lasting peace, and
promote cooperation and coexistence between all people of the Middle East. They will convene again in
Egypt.
9 – The Parties expressed their appreciation to the Arab Republic of Egypt for organizing and hosting
this meeting, as well as their efforts to ensure that it produces positive results, and for its primary role
aiming to achieve a peaceful settlement of the Palestinian question and maintain calm and stability in
the region. They also thanked the Hashemite Kingdom of Jordan and the United States of America for
their crucial and significant role in reaching understandings with a view to preventing escalation and
creating a horizon for peace.
Annex 14
Aqaba Joint Communique, 26 February 2023
The following text reflects the Joint Communique following today’s meeting in Aqaba, Jordan:
At the invitation of the Hashemite Kingdom of Jordan, Jordanian, Egyptian, Israeli, Palestinian
and U.S. Senior Officials met in Aqaba, Jordan today, 26 February 2023.
Following comprehensive and frank discussions, the participants announced the following:
1. The two sides (Palestinian and Israeli sides) affirmed their commitment to all previous
agreements between them, and to work towards a just and lasting peace. They reaffirmed the
necessity of committing to de-escalation on the ground and to prevent further violence.
2. The five parties recognize the importance of upholding unchanged the historic status quo
at the holy sites in Jerusalem in word and practice, and emphasizes in this regard the
Hashemite Custodianship / special role of Jordan.
3. The Government of Israel and the Palestinian National Authority confirmed their joint
readiness and commitment to immediately work to end unilateral measures for a period of 3-
6 months. This includes an Israeli commitment to stop discussion of any new settlement units
for 4 months and to stop authorization of any outposts for 6 months.
4. The five parties agreed to convene again in Sharm El Sheikh in March to achieve the goals
listed above.
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FEBRUARY 26, 2023
Aqaba Joint Communique
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5. The participants also agreed to pursue confidence-building measures and strengthen
mutual trust in order to address outstanding issues through direct dialogue. The two parties
will work in good faith to assume responsibilities and to enhance mutual trust through this
arrangement.
6. Jordan, Egypt and the United States consider these understandings as major progress
towards re-establishing and deepening relations between the two sides, and commit to
assisting and facilitating as appropriate their implementation.
7. The participants stressed the importance of the Aqaba meeting, the first of its kind in years.
They agreed to continue meeting under this formula, maintain positive momentum and
expand this agreement towards wider political process leading to a just and lasting peace.
8. The participants thanked Jordan for organizing and hosting this meeting and for its efforts
to ensure it produced positive results. They also thanked Egypt for its support and essential
role and active participation.
They also thanked the United States for its important role in efforts to reach understandings
that led to this agreement today, emphasizing its indispensable role in efforts to prevent
deterioration and find horizons for peace.
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