INTERNATIONAL COURT OF JUSTICE
SPECIAL AGREEMENT BETWEEN THE STATE OF PALESTINE (APPLICANT) AND THE STATE OF ISRAEL (RESPONDENT) TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE THE DIFFERENCES BETWEEN THE TWO STATES CONCERNING CERTAIN TERRITORY OCCUPIED BY ISRAEL SINCE JUNE 1967 jointly notified to the Court on 31 July 2018
JOINT NOTIFICATION ADDRESSED TO THE REGISTRAR OF THE COURT: The Hague, 31 July 2018 On behalf of the State of Palestine and the State of Israel, in accordance with Article 40(1) of the Statute of the International Court of Justice, we have the honor to transmit to you an original of the Special Agreement for submission to the International Court of Justice of the differences between the Applicant and the Respondent concerning certain territory occupied by the Respondent since June 1967, signed in The Hague, The Netherlands, on the thirtyfirst day of December in the year two thousand nineteen. Nabil Abuznaid, Haim Divon, Ambassador of the State of Palestine Ambassador of the State of Israel to the Kingdom of The Netherlands to the Kingdom of The Netherlands
2
SPECIAL AGREEMENT SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE STATE OF PALESTINE AND THE STATE OF ISRAEL ON THE DIFFERENCES BETWEEN THEM CONCERNING CERTAIN TERRITORY OCCUPIED BY ISRAEL SINCE JUNE 1967 The State of Palestine and the State of Israel (hereinafter referred to as “Palestine” and “Israel” respectively and “the Parties” collectively) , Considering that differences have arisen between them concerning the Palestinian territory it has occupied since June 1967, and other matters; Recognizing that the Parties have been unable to settle these differences by means of negotiation; and Desiring further to define the issues to be submitted to the International Court of Justice (hereinafter referred to as “the Court”) to resolve this dispute; In furtherance thereof the Parties have concluded this Special Agreement: Article 1 The Parties submit the questions contained in this Special Agreement (together with Corrections and/or Clarifications to follow) (“the Case”) to the Court pursuant to Article 40(1) of the Statute of the Court. Article 2 It is agreed by the Parties that Palestine shall act as Applicant and Israel as Respondent, but such agreement is without prejudice to any question of the burden of proof. Article 3 (a) (b)
The rules and principles of international law applicable to the dispute, on the basis of which the Court is requested to decide the Case, are those referred to in Article 38, paragraph 1 of the Statute of the Court. The Court is also requested to determine the legal consequences, including the rights and obligations of the Parties, arising from its Judgment on the questions presented in the Case.
Article 4 (a)
All questions of rules and procedure shall be regulated in accordance with the provisions of the Official Rules of the YPLF Moot Court Competition. 3
(b)
The Parties request the Court to order that the written proceedings should consist of Memorials presented by each of the Parties not later than the date set forth in the Official Schedule of the YPLF Moot Court Competition.
Article 5 (a) (b)
The Parties shall accept any Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith. Immediately after the transmission of any Judgment, the Parties shall enter into negotiations on the modalities for its execution.
In witness whereof the undersigned, being duly authorized, have signed the present Special Agreement and have affixed thereto their respective seals of office. Done in The Hague, The Netherlands, this first day of September in the year two thousand fifteen, in triplicate in the English language. Nabil Abuznaid Haim Divon Ambassador of the State of Palestine Ambassador of the State of Israel to the Kingdom of The Netherlands to the Kingdom of The Netherlands
4
**SPECIAL AGREEMENT** STATE OF PALESTINE V. STATE OF ISRAEL THE CASE CONCERNING THE ANNEXATION OF CERTAIN TERRITORY OCCUPIED BY ISRAEL SINCE JUNE 1967 1.
The background to the present case was outlined by the International Court of Justice (ICJ) in paragraphs 7077 of its Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion of 9 July 2004, which are reproduced below. 70 .
Palestine was part of the Ottoman Empire. At the end of the First World
War, a class “A” Mandate for Palestine was entrusted to Great Britain by the League of Nations, pursuant to paragraph 4 of Article 22 of the Covenant, which provided that: “Certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” The Court recalls that in its Advisory Opinion on the International Status of South West Africa , speaking of mandates in general, it observed that “The Mandate was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object ⎯ a sacred trust of civilization.” ( I.C.J. Reports 1950 , p. 132.) The Court also held in this regard that “two principles were considered to be of paramount importance: the principle of 5
nonannexation and the principle that the wellbeing and development of . . . peoples [not yet able to govern themselves] form[ed] ‘a sacred trust of civilization’” ( ibid. , p. 131). The territorial boundaries of the Mandate for Palestine were laid down by various instruments, in particular on the eastern border by a British memorandum of 16 September 1922 and an AngloTransjordanian Treaty of 20 February 1928. 71 .
In 1947 the United Kingdom announced its intention to complete evacuation
of the mandated territory by 1 August 1948, subsequently advancing that date to 15 May 1948. In the meantime, the General Assembly had on 29 November 1947 adopted resolution 181 (II) on the future government of Palestine, which “ Recommends to the United Kingdom . . . and to all other Members of the United Nations the adoption and implementation . . . of the Plan of Partition” of the territory, as set forth in the resolution, between two independent States, one Arab, the other Jewish, as well as the creation of a special international régime for the City of Jerusalem. The Arab population of Palestine and the Arab States rejected this plan, contending that it was unbalanced; on 14 May 1948, Israel proclaimed its independence on the strength of the General Assembly resolution; armed conflict then broke out between Israel and a number of Arab States and the Plan of Partition was not implemented. 72 .
By resolution 62 (1948) of 16 November 1948, the Security Council
decided that “an armistice shall be established in all sectors of Palestine” and called upon the parties directly involved in the conflict to seek agreement to this end. In conformity with this decision, general armistice agreements were concluded in 1949 between Israel and the neighbouring States through mediation by the United Nations. In particular, one such agreement was signed in Rhodes on 3 April 1949 between Israel and Jordan. Articles V and VI of that Agreement fixed the armistice demarcation line between Israeli and Arab forces (often later called the “Green 6
Line” owing to the colour used for it on maps; hereinafter the “Green Line”). Article III, paragraph 2, provided that “No element of the . . . military or paramilitary forces of either Party . . . shall advance beyond or pass over for any purpose whatsoever the Armistice Demarcation Lines . . .” It was agreed in Article VI, paragraph 8, that these provisions would not be “interpreted as prejudicing, in any sense, an ultimate political settlement between the Parties”. It was also stated that “the Armistice Demarcation Lines defined in articles V and VI of [the] Agreement [were] agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto”. The Demarcation Line was subject to such rectification as might be agreed upon by the parties. 73 .
In the 1967 armed conflict, Israeli forces occupied all the territories which
had constituted Palestine under British Mandate (including those known as the West Bank, lying to the east of the Green Line). 74 .
On 22 November 1967, the Security Council unanimously adopted
resolution 242 (1967), which emphasized the inadmissibility of acquisition of territory by war and called for the “Withdrawal of Israel armed forces from territories occupied in the recent conflict”, and “Termination of all claims or states of belligerency”. 75 .
From 1967 onwards, Israel took a number of measures in these territories
aimed at changing the status of the City of Jerusalem. The Security Council, after recalling on a number of occasions “the principle that acquisition of territory by military conquest is inadmissible”, condemned those measures and, by resolution 298 (1971) of 25 September 1971, confirmed in the clearest possible terms that: “all legislative and administrative actions taken by Israel to change the status 7
of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status”. Later, following the adoption by Israel on 30 July 1980 of the Basic Law making Jerusalem the “complete and united” capital of Israel, the Security Council, by resolution 478 (1980) of 20 August 1980, stated that the enactment of that Law constituted a violation of international law and that “all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem . . . are null and void”. It further decided “not to recognize the ‘basic law’ and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem”. 76 .
Subsequently, a peace treaty was signed on 26 October 1994 between Israel
and Jordan. That treaty fixed the boundary between the two States “with reference to the boundary definition under the Mandate as is shown in Annex I (a) . . . without prejudice to the status of any territories that came under Israeli military government control in 1967” (Article 3, paragraphs 1 and 2). Annex I provided the corresponding maps and added that, with regard to the “territory that came under Israeli military government control in 1967”, the line indicated “is the administrative boundary” with Jordan. 77 .
Lastly, a number of agreements have been signed since 1993 between Israel
and the Palestine Liberation Organization imposing various obligations on each party. Those agreements inter alia required Israel to transfer to Palestinian authorities certain powers and responsibilities exercised in the Occupied Palestinian Territory by its military authorities and civil administration. Such transfers have taken place, but, as a result of subsequent events, they remained partial and limited. 8
2.
The agreements between Israel and the Palestine Liberation Organization (PLO) relevant to this case are the IsraelPLO Letters of Mutual Recognition, dated 9 September 1993 (hereinafter “Letters of Mutual Recognition”); the Declaration of Principles on Interim SelfGovernment Arrangements, signed on 13 September 1993 (often called “Oslo I” and hereinafter the “Declaration of Principles”); the Protocol on Economic Relations (often called the “Paris Protocol”), signed on 4 May 1994; and the Interim Agreement on the West Bank and the Gaza Strip, signed on 28 September 1995 (often called “Oslo II” and hereinafter the “Interim Agreement”). Collectively, these agreements (along with prior agreements superseded by these agreements) are commonly known as the “Oslo Accords.”
3.
Acting under its “Uniting for Peace” resolution, 377A(V) (1950) of 3 November 1950, the General Assembly convened its Tenth Emergency Special Session concerning “illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory” in April 1997. The Emergency Special Session was convened following the rejection by the Security Council, on 7 March and 21 March 1997, of two draft resolutions concerning certain Israeli settlements in the occupied Palestinian territory. In resolution ES10/2, adopted 25 April 1997, the General Assembly expressed its conviction that: “the repeated violation by Israel, the occupying Power, of international law and its failure to comply with relevant Security Council and General Assembly resolutions and the agreements reached between the parties undermine the Middle East peace process and constitute a threat to international peace and security,” and condemned the “illegal Israeli actions” in occupied East Jerusalem and the rest of the occupied Palestinian territory, in particular the construction of settlements in that territory. The Tenth Emergency Special Session was adjourned temporarily and has since been reconvened 15 times, most recently in 2009. In resolution ES10/14, adopted 8 December 2003, the General Assembly requested the ICJ to issue an advisory opinion on the legal consequences of Israel’s construction of a wall in the Occupied Palestinian Territory. Following the Court’s advisory opinion of 9 July 2004, the General Assembly adopted resolution ES10/15 of 20 July 2004. Resolution ES10/15 demanded Israel’s compliance 9
with the advisory opinion and called upon Israel and the Palestinian Authority (PA) to immediately implement their obligations under the Quartet PerformanceBased Roadmap to a Permanent TwoState Solution to the IsraeliPalestinian Conflict, which was endorsed by the Security Council in resolution 1515 (2003) of 19 November 2003. Israel maintains that the Tenth Emergency Special Session violates the fundamental conditions of the Uniting for Peace procedure, and thus that its resolutions are ultra vires and constitute an abuse of the General Assembly’s powers under the Charter. 4.
The Declaration of Principles established the PA as an interim selfgovernment body, to which Israel transferred or delegated certain powers and responsibilities over civil affairs and internal security. Powers and responsibilities not so transferred were retained by Israel and exercised through the Israeli military government and its civil administration. Under the Accords, the PA exercises territorial jurisdiction over the Gaza Strip and certain parts of the West Bank. The PA has functional jurisdiction over the entire Palestinian population of Gaza and the West Bank, excluding Palestinians in East Jerusalem. In practice, civil affairs and internal security in the Gaza Strip have been controlled by de facto authorities since June 2007.
5.
The Interim Agreement administratively divided the West Bank between areas under Palestinian civil and internal security jurisdiction (Area A), areas under Palestinian civil jurisdiction and joint IsraeliPalestinian internal security jurisdiction (Area B), and areas under Israeli civil and internal security jurisdiction (Area C). Responsibility for external security over the entire West Bank was retained by Israel. The Interim Agreement provided that, except for issues to be negotiated in permanentstatus negotiations, Area C territory would gradually be transferred to Palestinian jurisdiction through “further redeployments” of Israeli forces. The issues to be negotiated, as defined in the Interim Agreement, are “Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis; and … powers and responsibilities not transferred to the [PA].” The last redeployment of Israeli forces pursuant to the Oslo Accords occurred in January 2000. 10
6.
Notwithstanding these administrative and jurisdictional divisions, the Declaration of Principles and the Interim Agreement provide that the West Bank and the Gaza Strip constitute a single territorial unit, and obligate the parties to refrain from measures during the interim period which compromise its integrity.
7.
On 6 June 2004, the Israeli cabinet adopted a resolution authorizing the removal of Israeli military installations and civilian settlements in the Gaza Strip, which the Israeli government characterized as a “disengagement.” Regarding a future permanentstatus agreement, the resolution stated: “In any future permanent status arrangement, there will be no Israeli towns and villages in the Gaza Strip. On the other hand, it is clear that in the West Bank, there are areas which will be part of the State of Israel, including major Israeli population centers, cities, towns and villages, security areas and other places of special interest to Israel.” The resolution further stated that the “disengagement” would “dispel the claims regarding Israel’s responsibility for the Palestinians in the Gaza Strip,” and that it was “without prejudice” to relevant agreements between Israel and the PLO. The removal of Israeli settlements and permanent military installations in Gaza was completed in September 2005. Israel maintains that it no longer has effective control over the Gaza Strip, and that the law of occupation no longer governs its relations with Gaza.
8.
In June 2007, interfactional hostilities resulted in a loss of PA governing authority over the Gaza Strip to the Hamas movement, which Israel regards as a terrorist organization. Despite several attempts at national reconciliation, the Hamas government has consistently exercised de facto authority in Gaza since that time. In September 2007, Israel’s Security Cabinet declared Gaza “hostile territory.” Israel maintains that it is engaged in an ongoing armed conflict with Gaza, and that its relations with Gaza are governed by the law of armed conflict. Largescale hostilities involving Israel and the de facto authorities in Gaza occurred 11
in 2009, 2012 and 2014, with sporadic hostilities occurring between and subsequent to these conflicts. 9.
Israel has been building a barrier in the West Bank and along the Green Line (hereinafter the “Barrier”) since 2002. Approximately 85 percent of the Barrier’s route is within the West Bank, placing approximately 9.4 percent of West Bank territory to the west of the Barrier. The Israeli military has declared West Bank territory west of the Barrier (commonly known as and hereinafter called the “seam zone”) a closed area, which Palestinians may not reside in or enter without a permit issued by the Israeli authorities. The ICJ’s advisory opinion of 9 July 2004 found that Israel’s construction of the Barrier and its associated permit regime are contrary to international law. The Court ruled that Israel was obligated to cease construction of and dismantle the Barrier, repeal or renounce all legislative and regulatory acts related to the Barrier and its associated regime, and make reparation for all damage caused by them. The Court further ruled that all States are under an obligation not to recognize the illegal situation resulting from the construction of the Barrier and not to render aid or assistance in maintaining the situation created by such construction.
10.
Israel has not complied with the Court’s advisory opinion and denies that it has binding legal effect. Palestine maintains that the advisory opinion conclusively resolved, and has the force of res judicata with respect to, certain questions of international law relevant to the present case, including the legality of Israeli settlements in the West Bank (including East Jerusalem), the applicability of Geneva Convention (IV) to Israel’s occupation since June 1967 of the West Bank (including East Jerusalem) and the Gaza Strip, and the application of Israel’s human rights obligations to the same territory.
11.
The parties have conducted several unsuccessful rounds of bilateral negotiations, sponsored by the United States and supported by the international community, aimed at reaching an agreement on the permanentstatus issues identified in the Oslo Accords and ending their conflict. These negotiations (which are commonly known by their location) 12
were held in 2000 (Camp David), 2001 (Taba), 20072008 (Annapolis), and 20132014. No bilateral permanentstatus negotiations have been held since April 2014. 12.
The PLO was recognized as the representative of the Palestinian people by General Assembly resolution 3210 (XXIX) of 14 October 1974 and was granted nonstate observer status in the General Assembly by resolution 3237 (XXIX) of 22 November 1974. In resolution 43/177 of 15 December 1988, the General Assembly decided that the designation “Palestine” should be used in place of “Palestine Liberation Organization” in the United Nations system, without prejudice to the PLO’s observer status and functions. On 23 September 2011, Palestine applied for membership in the United Nations, but the Security Council’s Committee on the Admission of New Members was unable to unanimously recommend admission. Thereafter, the General Assembly voted in resolution 67/19 (2012) of 29 November 2012 to recognize Palestine as a nonmember state and the PLO Executive Committee as its provisional government. On 1 April and 31 December 2014, Palestine acceded to various treaties, including the core United Nations human rights treaties. On 1 January 2015, Palestine lodged a declaration under article 12(3) of the Rome Statute of the International Criminal Court (“Rome Statute”) accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014,” corresponding to the start of major Israeli military operations in the West Bank and the Gaza Strip during the summer of 2014. Palestine acceded to the Rome Statute on 2 January 2015 and became a state party to the ICC on 1 April 2015.
13.
On 6 January 2013, Mahmoud Abbas, president of the PA and chairman of the PLO Executive Committee, issued a presidential decree calling upon the State of Palestine to issue, as soon as practicable, national identification documents to all Palestinians worldwide, on the understanding that such documents should be without prejudice to the holder’s existing citizenship or residency rights. In early 2016, the Palestinian government
13
announced its intention to issue State of Palestine passports to residents of the West Bank and the Gaza Strip, who were previously issued PA travel documents. 14.
Following the 1967 War, the Israeli Knesset enacted a series of measures which expanded the municipal boundaries of Jerusalem from 6.5 km 2 (as the city was defined under Jordanian rule) to 71 km 2 , and extended Israeli law, jurisdiction and administration to East Jerusalem. ThenIsraeli foreign minister Abba Eban maintained that the application of Israeli law to East Jerusalem did not constitute annexation, but related to the integration of Jerusalem in the administrative and municipal spheres. The Basic Law: Jerusalem, adopted in 1980, declares “complete and united” Jerusalem as the capital of Israel. A 2000 amendment to the Basic Law prohibits the transfer of authority over any part of municipal Jerusalem to any “foreign body” except by a Basic Law passed by a majority of the Knesset.
15.
In May 2016, the Israeli government announced plans to extend Israeli law to West Bank settlements outside of East Jerusalem. This plan was adopted into law by the Knesset on 1 May 2017. Deputy foreign minister Tzipi Hotolevy denied that the law constitutes annexation of the settlements. She claimed that the measure was necessary to uphold guarantees of nondiscrimination towards all citizens under Israeli law, including residents of the settlements. Prior to the law’s enactment, Israeli citizens residing in the settlements were, in principle, subject to the territorial jurisdiction of the Israeli military government in the West Bank and the personal jurisdiction of Israeli civil courts.
16.
On 4 July 2017, the Security Council adopted resolution 2750 (2017) declaring the law null and void, demanding its immediate rescission, and calling upon all states not to recognize, aid or assist in the illegal situation resulting from the law’s promulgation.
17.
On 5 August 2017, the Security Council adopted new resolution 2755, which “deplores Israel’s noncompliance with resolution 2750 of 4 July 2017,” declares that the extension of 14
Israeli law to the settlements is “tantamount to annexation,” and as such, “constitutes a threat to international peace and security.” Acting under Chapter VII, the Security Council in resolution 2755: “Affirms the urgent need to attain, no later than 12 months after the adoption of this resolution, a just, lasting and comprehensive peaceful solution that brings an end to the Israeli occupation since 1967 and fulfils the vision of two independent, democratic and prosperous states, Israel and a sovereign, contiguous and viable State of Palestine, living side by side in peace and security within mutually and internationally recognized borders.” Regarding the parameters for permanentstatus negotiations, resolution 2755: “decides that the negotiated solution will be based on the following parameters: – borders based on 4 June 1967 lines with mutually agreed, limited, equivalent land swaps; – security arrangements, including through a thirdparty presence, that guarantee and respect the sovereignty of a State of Palestine, including through a full and phased withdrawal of the Israeli occupying forces, which will end the occupation that began in 1967 over an agreed transition period in a reasonable timeframe, not to exceed 5 August 2018, and that ensure the security of both Israel and Palestine through effective border security and by preventing the resurgence of terrorism and effectively addressing security threats, including emerging and vital threats in the region; – a just and agreed solution to the Palestine refugee question on the basis of Arab Peace Initiative, international law and relevant United Nations resolutions, including resolution 194 (III);
15
– a just resolution of the status of Jerusalem as the capital of the two States which fulfils the legitimate aspirations of both parties and protects freedom of worship; and – the just settlement of all other outstanding issues, including water and prisoners.” The resolution also “looks forward to welcoming Palestine as a full Member State of the United Nations within the timeframe defined in the present resolution.” Israeli representatives at the United Nations issued the following response to the resolution: “Israel adheres to its position that the best way to resolve the conflict between Israel and the Palestinians is direct, bilateral negotiations without preconditions.” 18.
On 15 August 2017, Palestine referred an alleged crime against humanity, the crime of apartheid, to the ICC Prosecutor under article 14 of the Rome Statute. In accordance with the Regulations of the Office of the Prosecutor and established practice, the ICC Prosecutor opened a preliminary examination into the situation on 31 July 2017.
19.
On 1 August 2017, in response to Palestine’s referral of the alleged crime of apartheid to the ICC, Israel announced an indefinite suspension of clearance revenue transfers to the PA. Under the Protocol of Economic Relations, Israel collects taxes on Palestinian imports on behalf of the PA and transfers the proceeds to the PA on a monthly basis. As of 2017, these clearance revenue transfers accounted for 75 percent of the PA’s total revenue. Israel has, in the past, suspended clearance revenue transfers in response to political developments: ● in August 1997, for one month, following a deterioration in the political and security situation; ● in October 2000, for two years, corresponding to the start of the second Palestinian uprising ( intifada );
16
● in March 2006, for oneandahalf years, following Palestinian legislative elections in which Hamas participated and won a majority in the Palestinian Legislative Council (PLC); ● in May 2011, for one month, following Palestinian national reconciliation efforts; ● in November 2012, for four months, following the General Assembly’s recognition of Palestine as a nonmember state; and ● in December 2014, for four months, following Palestine’s application for membership in, and referral of alleged war crimes to, the ICC. During these periods, the PA resorted to high levels of borrowing from banks in Palestine, increasing the already high exposure of the domestic banking system to default by the PA (which has suffered a sharp decline in foreign assistance since 2012) and its employees, who account for 23 percent of total employment. During the 20142015 suspension of transfers, the PA also resorted to paying its employees only 60 percent of their salaries. 20.
The loss of tax revenue forced the PA to institute extreme austerity measures, including a 30 percent reduction in the public workforce, an acrosstheboard 40 percent reduction in salary for public employees, and drastic reductions in health, education and social welfare spending. Various public sector employees, including teachers, police officers, and health workers, organized demonstrations and strikes. University students and popular committees organized protests throughout the West Bank, demanding that the PA cut spending related to security coordination with Israel rather than public benefits. These demonstrations, strikes and protests grew in size and intensity throughout late 2017.
21.
As its fiscal crisis worsened, the PA made an emergency appeal for additional foreign assistance. Key donors conditioned additional assistance on the renewal of permanentstatus negotiations with Israel. Thereafter, the Palestinian leadership, through the United States, communicated to Israel its willingness to resume negotiations. On 15 17
September 2017, President Abbas and Prime Minister Netanyahu met in Amman and announced the resumption of negotiations. The first session was held 29 September 2017 at the American Colony Hotel in Jerusalem. The Palestinian side was led by Saeb Erekat, the PLO’s secretarygeneral and its chief negotiator since the Annapolis negotiations. The Israeli side was led by Gilead Sher, a senior negotiator in the Camp David and Taba negotiations, and Udi Dekel, Israel’s lead negotiator in the Annapolis talks. 22.
In his opening remarks, Erekat criticized the suspension of clearance transfer revenues and noted the public unrest that had ensued from the PA’s austerity programme. He said that the negotiators “were in a race against time, because if the PA collapses, so does the last hope for a twostate solution.” Noting that the parties failed to reach a framework agreement in the 20132014 negotiations, Erekat said that “the international community has given us our framework agreement in resolution 2755, so we expect to start immediately on a comprehensive permanent status agreement based on the terms of that resolution.” Dekel gave the opening remarks for the Israeli side. He said that the terms of resolution 2755 were too vague to serve as a framework agreement and that certain of its terms, including a threeyear deadline for a “full and phased withdrawal of the Israeli occupying forces,” had to be reconciled with Israeli security requirements, adding that “the security of Israeli citizens is nonnegotiable.” The parties spent the remainder of the 29 September session debating the meaning and binding nature of the parameters for a negotiated solution set forth in resolution 2755. The parties held their second and third negotiating sessions on 3 October and 10 October 2017, but failed to make progress towards an agreement on the parameters for further negotiations.
23.
Following the 10 October 2017 negotiations, Erekat announced that the Palestinian government was suspending negotiations until it received an affirmative commitment from the Israeli side regarding borders. Specifically, the Palestinian side demanded that Israel recognize that resolution 2755, in providing for a “sovereign, contiguous and viable State 18
of Palestine” and “borders based on 4 June 1967 lines with mutually agreed, limited, equivalent land swaps,” ruled out the Adumim and Ariel settlement “blocs” being annexed to Israel. In a statement, Dekel declined to give such assurances, stating that no particular settlement or settlement “bloc” annexed to Israel in the context of land swaps, including the Adumim or Ariel “blocs,” would preclude a sovereign, contiguous and viable Palestinian state. Noting Security Council resolution 1850 of 16 December 2008, where the Security Council declared “its commitment to the irreversibility of the bilateral negotiations,” Dekel declared that “the Palestinian side has violated its international obligation to negotiate in good faith by drawing arbitrary ‘red lines’ from the outset.” Dekel added that “Israel seeks peace and stands ready to resume negotiations.” As of the date of this Agreement, no further negotiations have occurred. 24.
Despite the austerity measures, the PA exhausted its cash reserves by December 2017 and was unable to secure additional financing. On 1 January 2018, President Abbas announced that the PLO Executive Committee had voted to dissolve the PA and to terminate the Declaration of Principles and the Interim Agreement. In a communique issued by Palestinian representatives at the United Nations, Palestine stated that it considered Israel to be in material breach of the Declaration of Principles and the Interim Agreement through the suspension of clearance revenue transfers, which prevented the continued existence of the PA and its fulfillment of its obligations under the Oslo Accords. Noting that the fiveyear interim period contemplated in the the Declaration of Principles and the Interim Agreement was intended to end with the conclusion of a permanentstatus agreement no later than May 1999 (later extended by mutual agreement to September 2000), Palestine asserted that the continued application of these agreements in the present circumstances was incompatible with peremptory norms of general international law, namely, the right of selfdetermination of the Palestinian people and the prohibition on apartheid. The communique clarified that Palestine “was not abrogating, and hereby reaffirms, the commitments made by the PLO in the Letters of Mutual Recognition, namely, recognition of the right of the State of Israel to exist in peace and security, acceptance of Security 19
Council resolutions 242 and 338 and commitment to a peaceful resolution of the conflict, and renunciation of the use of terrorism and other acts of violence.” 25.
On 3 January 2018, Israeli representatives at the United Nations released a communique in which it rejected “the PLO’s purported termination” of the Oslo Accords. The communique denied that the suspension of clearance revenue transfers entitled the PLO to terminate the Accords. It further noted that the Accords have no provision regarding their termination, except through the conclusion of a permanentstatus agreement, and do not provide for denunciation or withdrawal. It added that Palestine’s communique had “notably not reaffirmed the PLO’s commitment in the IsraelPLO Letters of Mutual Recognition to ‘assume responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations and discipline violators,’ and thus tacitly endorsed a resumption of violence by PLO factions against Israeli civilians.”
26.
On 4 January 2018, Prime Minister Netanyahu announced that, in light of the PA’s dissolution and the end of security coordination between Israeli and Palestinian authorities, the Israeli Cabinet had made the decision to “declare the Palestine Liberation Organization and the socalled ‘State of Palestine’ as hostile entities and all areas formerly under exclusive or joint PA internal security jurisdiction [Areas A and B] as hostile territory.” PM Netanyahu clarified that these measures did not abrogate Israel’s commitment in the Letters of Mutual Recognition to “recognize the PLO as the representative of the Palestinian people.” PM Netanyahu further stated that Israel understood Palestine’s purported termination of the Declaration of Principles and the Interim Agreement as a rejection of the principle of a negotiated permanentstatus agreement. Accordingly, he announced that Israel would make preparations for a unilateral withdrawal from parts of the West Bank, consistent with its security needs and “realities on the ground, including already existing major Israeli population centers.”
20
27.
On 1 February 2018, the Israeli Cabinet adopted a resolution authorizing a unilateral withdrawal from parts of the West Bank. Under the resolution, Israel would remain in possession of all West Bank territory west of the Barrier, including all of the East Jerusalem (as unilaterally expanded by Israel in 1967), as well as the Adumim, Etzion, and Ariel settlement “blocs.” Palestinian residents of these areas would receive Israeli permanent residency and would be eligible to apply for Israeli citizenship. All other settlements in the West Bank would be removed, and all infrastructure within the evacuated settlements, including housing, agricultural works, quarries and industrial areas, would be destroyed. Israel would retain a residual military presence in the Jordan Valley and would reserve the right to deploy its armed forces on Palestinian territory in emergency situations. The resolution declared that the withdrawal would “dispel the claims regarding Israel's responsibility for the Palestinians in Judea and Samaria [the West Bank]” and was undertaken “without prejudice to agreements in force between the State of Israel and the Palestinians.”
28.
On 2 February 2018, President Abbas read a statement adopted by the PLO Executive Committee, which “warned the international community to see this socalled unilateral withdrawal for what it is: the latest chapter in Israel’s history of imposing facts on the ground, facts which fly in the face of international law and foreclose the possibility of a twostate solution.” The resolution also called on the international community to prevent Israel from removing or destroying any infrastructure without the consent of the Palestinian government. President Abbas warned that any removal or destruction of infrastructure would constitute a “violation of Palestine’s permanent sovereignty over its natural resources, for which Palestine will seek reparation in accordance with international law.”
29.
On 15 February 2018, Kuwait introduced a draft Security Council resolution that condemned the unilateral withdrawal as a form of annexation and imposed comprehensive mandatory sanctions against Israel under Chapter VII of the Charter. The resolution was not adopted as a result of negative votes by permanent members. 21
30.
On 16 February 2018, the PLO Executive Committee, in its capacity as the provisional government of the State of Palestine, adopted a measure providing for the Palestinian Ministry of Civil Affairs to issue State of Palestine citizenship numbers, identity documents, and passports to “any Palestinian, as defined in articles 4 and 5 of the 1968 Palestinian National Charter, upon his/her request, without prejudice to his/her existing citizenship or residency rights, and without prejudice to the individual and collective right of return as enshrined in General Assembly resolution 194 (III) and general principles of international law.” The decree also authorized the Minister of Civil Affairs to promulgate any regulations necessary for this purpose. On 1 April 2018, the Ministry of Civil Affairs inaugurated a new citizenship registry. Residents of the West Bank and the Gaza Strip were automatically added to the new citizenship registry and were issued State of Palestine identity and travel documents. On 1 May 2018, the Ministry of Civil Affairs began accepting applications for Palestinian citizenship from persons outside the West Bank and Gaza, including Palestinian refugees in Arab host states, Palestinian citizens of Israel, and the Palestinian diaspora. Within the first month, approximately 5,000 Palestinian citizens of Israel (of a total population of 1.658 million) applied for and obtained Palestinian citizenship.
31.
On 17 February 2018, the General Assembly reconvened its Tenth Emergency Special Session and adopted resolution ES10/19 (2018). The resolution declares that “the illegal occupation of Palestine by Israel and repeated Israeli measures which are tantamount to the annexation of Palestinian territory constitute a breach of international peace and security” and “demands the immediate and unconditional implementation of Security Council resolution 2755 without any prevarication, qualification and modification….” The resolution further “calls upon all States, in view of the threat posed to international peace and security, to impose comprehensive mandatory sanctions in accordance with the provisions of the Charter,” and “urges States to cease forthwith, individually and
22
collectively, all dealings with Israel to isolate it politically, economically, militarily and culturally.” 32.
On 20 March 2018, the General Assembly, on the recommendation of the Security Council, admitted Palestine as a member of the United Nations. In a speech marking the occasion, President Abbas expressed Palestine’s willingness to initiate permanentstatus negotiations with Israel “on the basis of sovereign equality and the parameters set forth by the Security Council in resolution 2755.” Prime Minister Netanyahu responded that Israel was willing to initiate negotiations immediately, but “without ultimatums, which give the Palestinians an incentive not to negotiate.”
33.
On 1 June 2018, Israel’s interior minister, Aryeh Deri, announced that the state would initiate proceedings to cancel the Israeli citizenship of persons who had obtained Palestinian citizenship, in accordance with article 11 of Israel’s 1952 Nationality Law. Deri explained that the PLO and the State of Palestine, having been designated “hostile entities,” were equivalent to the “enemy states” designated by a 2008 amendment to the Nationality Law. The following day, Adalah: The Legal Center for Arab Minority Rights in Israel, a civil rights NGO, filed a petition with the Israeli High Court of Justice, challenging the legality of the Interior Ministry decision and seeking a preliminary injunction. On 5 June 2018, the High Court of Justice enjoined the Minister of Interior from implementing the decision pending a full hearing, but declined Adalah’s request for an order nisi , which would have required the state to establish the legality of its decision. As of the date of this Special Agreement, the hearing has not occurred. Since 2 June 2018, the Palestinian Ministry of Civil Affairs has declined to receive citizenship applications from Palestinian citizens of Israel.
34.
On 1 July 2018, the Yesha Council, an umbrella organization of municipal and regional councils in the West Bank settlements, announced that it would hold a referendum on the independence of “Western Judea and Samaria,” comprised of the “seam zone” and 23
settlement “blocs” remaining under Israeli control following Israel’s unilateral withdrawal from parts of the West Bank. The referendum would be open to the approximately 189,000 Israeli and 57,000 Palestinian residents of the area. President Abbas condemned the proposed referendum as illegal and called on Palestinian residents of the area not to participate in it. Israeli representatives at the United Nations characterized the referendum as a initiative of private citizens which the state neither supported nor endorsed. However, Prime Minister Netanyahu observed that “the referendum is a natural response by Israeli citizens living in Judea and Samaria to the threat posed by the decision of the United Nations to bypass bilateral permanentstatus negotiations without preconditions, in favor of recognizing a Palestinian state and demanding that Israel negotiate under duress.” 35.
The referendum was held on 15 July 2018, and 97 percent of voters cast their ballots in favor of independence. The elected heads of the settlement municipal and regional councils in the area covered by the referendum declared themselves the “Provisional Government of Western Judea and Samaria.” The Provisional Government ratified the independence of Judea and Samaria and voted to seek immediate integration of the territory into Israel. President Abbas declared that “Palestine denies the legitimacy of the socalled referendum illegally conducted on Palestinian territory by and for an Israeli settler population that is illegal present on our territory. Palestine holds the Government of Israel responsible for the referendum, which is annexation in the guise of selfdetermination, and will pursue redress in accordance with international law.”
36.
On 16 July 2018, the Provisional Government of Western Judea and Samaria and the Government of Israel signed an integration agreement, which was duly ratified by the Israeli Knesset.
37.
At the request of the SecretaryGeneral of the United Nations, Palestine and Israel sent their foreign ministers to New York on 20 July 2018. Israel expressed willingness to submit the legality of Palestine’s termination of the Declaration of Principles and the 24
Interim Agreement to this Court’s jurisdiction. Palestine insisted that it would only agree if the Court were seized also of the “inextricably related” disputes over Israel’s application of Israeli law to the settlements, its continued occupation of Palestine, whether Israel’s policies and practices within occupied Palestinian territory violate the norms prohibiting apartheid and colonialism, whether the Declaration of Principles and the Interim Agreement were in violation of preemptory norms of international law, and the legality of the Israeli government decision to cancel the Israeli citizenship of individuals who had obtained Palestinian citizenship. Israel denies that any of these disputes are “inextricably related” to the termination of the Declaration of Principles and the Interim Agreement, but in lieu of filing preliminary objections, has agreed to a consolidated adjudication of procedural objections and the merits of the case. 38.
Israel has been a member of the United Nations since 1949. It is a party to the International Covenant on the Elimination of All Forms of Racial Discrimination (1979), the International Covenant on Civil and Political Rights (1991), and the International Covenant on Economic, Social and Cultural Rights (1991). Israel ratified the 1954 Convention on the Status of Stateless Persons, and has signed, but not ratified the 1961 Convention on the Reduction of Statelessness. It is not a party to the 1961 Vienna Convention on the Law of Treaties, the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, or the Rome Statute of the International Criminal Court.
39.
Palestine has been a member of the United Nations since March 2018. In 2014, Palestine acceded to the International Covenant on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, the 1961 Vienna Convention on the Law of Treaties, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. It became a party to the Rome Statute of the International Criminal Court in 2015. It is not a party to the 1954 Convention
25
on the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness. 40.
The State of Palestine respectfully requests the Court to adjudge and declare that: a. The extension of Israeli law to the settlements constitutes annexation and violates Palestine’s territorial integrity, the prohibition on the acquisition of territory by force, and the United Nations Charter generally; b. The unilateral declaration of independence of Western Judea and Samaria and subsequent integration into Israel are illegal and without effect, and therefore that the territory remains part of the State of Palestine; c. Palestine’s termination of the Declaration of Principles and the Interim Agreement was consistent with international law; d. Israel has failed to engage in permanentstatus negotiations in accordance with the parameters set in Security Council resolution 2755, in violation of international law and its Charter obligations; e. Israel’s policies and practices within occupied Palestinian territory violate the norms prohibiting apartheid and colonialism. f. Israel violated international law by adopting a government decision to cancel the citizenship of its citizens of Palestinian nationality who acquired Palestinian citizenship.
41.
The State of Israel respectfully requests the Court to adjudge and declare that: a. The extension of Israeli law to the settlements did not constitute an act of annexation and was consistent with international law; b. Western Judea and Samaria’s unilateral declaration of independence and integration into Israel are consistent with international law, and in any event, this Court should not order the retrocession of Western Judea and Samaria to Palestine against the expressed will of its population.
26
c. Palestine’s termination of the the Declaration of Principles and the Interim Agreement violated international law and justified Israel’s unilateral withdrawal from parts of the West Bank; d. Israel’s willingness to engage in permanentstatus negotiations without preconditions was consistent with Security Council resolution 2755 and general principles of international law; e. Israel and Palestine have an obligation to negotiate under relevant Security Council resolutions, and Palestine’s conduct in negotiations held in September and October 2017 was inconsistent with its obligation to negotiate in good faith. f. Israel’s cancellation of the citizenship of certain nationals who acquired Palestinian citizenship has not occurred and is not mature for judicial resolution, and in any event, cancellation of citizenship in accordance with domestic law is within Israel’s sovereign rights and is consistent with international law.
27