10 No. 75 JUSTICE 9. While the language of Resolution 77/247 portrays these assumptions as true, we submit, as further detailed in this statement, that while they may accurately reflect certain actors’ political aspirations, they do not accurately represent legal facts. Consequently, it will be for the Court to carry out its obligation to unpack, test and verify these assumptions, both for the purpose of determining whether the Court should exercise its jurisdiction and deliver the requested opinion, and also substantively should it choose to do so.5 10. With respect to the legal component of the General Assembly’s assumptions, this statement will attempt to clarify certain legal principles applicable in this context, which the Court may consider are not properly represented in the existing formulation of the General Assembly’s questions. With respect to the factual elements underlying the General Assembly’s request, we observe that the preponderance of materials upon which the General Assembly bases Resolution 77/247 originate from various organisations whose methodology and decision-making processes have often been questioned when dealing with the Palestinian-Israeli conflict. It follows that it is crucial for the Court to fulfill its fact-finding mandate by testing independently the credibility and reliability of the information contained in these documents and not simply rely on materials referred to in UNGA Resolution 77/247. 11. A crucial point for the purposes of the current proceedings must be made: the fact that pronouncements made in UN resolutions might, under certain circumstances, be used to ascertain the content of customary law, cannot also apply to the ascertainment of facts. Indeed, determining factual circumstances is not a matter of legal opinion, but a matter of evidence. Repetition of the same pronouncement as a “fact” cannot transform reality in the absence of concrete and verifiable evidence; if it could, it would transform the judicial process into an Orwellian exercise disconnected from the facts on the ground, which would be contrary to the judicial function of the Court.6 12. The General Assembly’s formulation of the questions before the Court, if accepted as they are, will prevent the Court from conducting the in-depth factual and legal analysis that is required, and will naturally raise questions as to the propriety of the Court’s accepting the General Assembly’s request, should they not be reconsidered. It follows that the Court should consider whether to reformulate the General Assembly’s questions. As put by Judge Kooijmans in his separate opinion in the Wall Advisory Opinion: 5. See 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, para. 62. 6. Just as a cautionary example, we note the recent decision of the UN Secretary General immediately to terminate the employment of an undisclosed number of UN employees in Gaza (employed by UNRWA) on the basis of intelligence reports proving their personal involvement in the massacre of October 7. See Allegations Against UNRWA Staff, 8 February 2024 available at https://www.unrwa.org/newsroom/official-statements/allegations-against-unrwa-staff#. According to various international media reports, the same intelligence reports which served as the basis for the Secretary General’s decision also indicated that approximately 10% of the overall employees of this UN body are actually members of, or otherwise affiliated with, internationally designated terrorist groups. See ‘UN agency probes staff suspected of role in Oct 7 attacks’, Reuters, Gabrielle Tétrault-Farber, 27 January 2024, available at https://www. reuters.com/world/middle-east/un-palestinian-refugee-agency-investigates-staff-suspected-role-israel-attacks-2024-01-26/; ‘Intelligence Reveals Details of U.N. Agency Staff’s Links to Oct 7 Attack’, Wall Street Journal, Carrie Keller-Lynn and David Luhnow, January 29, 2024, available at https://www.wsj.com/world/middle-east/at-least-12-u-n-agencyemployees-involved-in-oct-7-attacks-intelligence-reports-say-a7de8f36; ‘10% of UNRWA Staffers Tied to Terrorist Groups: Report’, Washington Free Beacon, Charles Hili, 29 January 2024, available at https://freebeacon.com/latestnews/10-of-unrwa-staffers-tied-to-terrorist-groups-report/; 'A U.N Agency Is Accused of Links to Hamas. The Clues Were There All Along’, Wall Street Journal, David Luhnow and Carrie Keller-Lynn, February 2, 2024, available at https://www.wsj.com/world/middle-east/hamas-israel-attack-united-nations-unrwa-0ec8d325.
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