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ICC-01/18-268 05-08-2024 1/12 PT

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International

Criminal
• 7

Court

Original: English No: I C C - 0 1 / 1 8

Date: 05 August 2024

PRE-TRIAL C H A M B E R I

Before: Judge l u lia Motoc, Presiding Judge

Judge Reine Alapini-Gansou, Judge

Judge Nicolas G u i l l o u , Judge

SITUATION IN THE STATE OF PALESTINE

Public Document

Observations by the Organization of Islamic Cooperation to Pre-Trial Chamber I

p u r s u a n t to Rule 103 of the Rules of Procedure and Evidence

Source: The Organization of Islamic Cooperation

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Document to be notified in accordance with regulation 31 of the Regulations of the

Court to:

The Office of the Prosecutor Counsel for the Defence

Mr. Karim A.A. Khan KC

Ms. Nazhat Shameem Khan

Mr. Mame Mandiaye Niang

Legal Representatives of the Victims Legal Representatives of the Applicants

Unrepresented Victims Unrepresented Applicants

(Participation/Reparation)

The Office of Public Counsel for The Office of Public Counsel for the

Victims Defence

States' Representatives Amicus Curiae

Organization of Islamic Cooperation

REGISTRY

Registrar Counsel Support Section

M. Zavala Giler, Osvaldo

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other

Section

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I. Procedural history

1. On 10 June 2024, the United Kingdom ('the U K ' ) filed a request to provide written amicus

curiae observations under Rule 103(1) of the Rules of Procedu re and Evidence ('the Rules')

on the International Criminal Court's ('the ICC') jurisdiction in relation to the ongoing

1
investigation in the Situation in the State o
f Palestine.

2. On 27 June 2024, the Pre-Trial Chamber I (the ·PTC) decided to authorize the United

Kingdom and others to file written observations.

3. The Organization of Islamic Cooperation (the ·OIC), in accordance with its commitment to

the Palestinian cause and previous engagement with the ICC,' applied for leave to file written

observations as amicus curiae in accordance with Rule I 03 of the Rules and requests its

submission be made public.

4. On 22 July 2024, the PTC granted the OIC pennission to submit observations to be filed

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public.

II. Background

5. The OIC is the second largest intergovernmental organization, after the United Nations, with

a membership of 57 states, including the State of Palestine as a full-fledged member. Its

membership is spread over four continents. Twenty Five Member States are Parties to the

5
Rome Statute of the ICC.

1
Request by the United Kingdom for Leave to Submit Written Observations Pursuant to Rule 103, 10 June 2024,

I C C - O I / 1 8 - 1 7 1 - S E C R E T - E x p . Reclassified as Public, No I C C - 0 1 / I 8 - 1 7 1 - A n x
2 Public redacted version of 'Order deciding on the United Kingdom's request to provide observations pursuant to

Rule 1 0 3 {1 ) of the Rules of Procedure and Evidence, and setting deadlines for any other requests for leave to file

amicus curiae observations', 27 June 2024, 1CC-01/I8-174-RED.

Observations of the Organisation of Islamic Cooperation in relation to the proceedings in the Situation in Palestine.

16 March 2020, ICC-01/18-84.

' Decision on requests for leave to file observations pursuant to rule I 03 of the Rules of Procedure and Evidence, 22

July 2024, ICC-01/18-249.

' The entire list of OIC Members available here: https://www.oic-ocei.org/states/'lanen.

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6. The OIC aims to exert every effort to achieve a peaceful solution to the Question of Palestine

through implementation of United Nations Resolutions that call on Israel to end its occupation

of the Palestinian territory occupied since 1 9 6 7 , which comprises the West Bank, including

East Jerusalem, and the Gaza Strip, and extending active support for the Palestinian people's

right to self-determination and to achieve their independence from occupation.

7. On 5 May 2024, the 1 5 " Session of the OIC adopted the Banjul Declaration, 'Enhancing Unity

and Solidarity through Dialogue for Sustainable Development'. The Members reaffinned their

commitment to the principles enshrined in the United Nations Charter and to International Law

and underscored the importance of an inclusive and balanced multilateral ism to contribute to

international peace, security, justice and sustainable development, and to promote dialogue

among civilizations, cultures and religions, friendly relations and good neighbourliness,

mutual respect and cooperation. The Members confirmed fu l l solidarity with the Palestinian

People in their struggle to free themselves from foreign occupation and colonization and

warned of the danger of continuing the crime of genocide and ethnic cleansing, including

starvation, deprivation of water, and preventing entry of fuel, which has led to a genuine

6
disaster for all health and humanitarian sectors.

8. Moreover, in the Resolution on "The issue of Palestine and AI-Quds Ash-Sharif'', Members

reaffirmed the centrality of the Palestine Cause, denounced Israeli crimes against the

defenseless Palestinian people, condemned I s ra e l ' s genocide against the Palestinian people,

and stressed the responsibility of the international community to hold Israel accountable for its

crimes. The Resolution explicitly endorsed the State of Palestine's recourse to the ICC:

Supports the legal measures taken by the State of Palestine, supported by the Member

States, in confronting the policies of the Israeli colonial occupation, affirms its right to

confront the intransigence of the Israeli occupation and the continuation of its crimes

against the Palestinian people, including turning to international courts, including the ICC,

Banjul Declaration, Adopted by the 1 5 Session of the Islamic Summit Conference (Session of "Enhancing Unity and

Solidarity Through Dialogue for Sustainable Development"), Banjul, 4 & 5 May 2024, OICSUM­

I5/2024/DEC.FINAL.

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to decide on the illegality of the existence of occupation on the land of the State of

Palestine, and calls on the OIC Member States and the General Secretariat to support these

actions by all possible means. Urges the ICC Prosecutor for the speedy completion of the

criminal investigation into war crimes and crimes against humanity being committed by

officials of the Israeli colonial occupation government against the defenseless Palestinian

people and to bring the criminals to international justice and calls on the OIC Member

States and the General Secretariat to provide the necessary technical and financial support

to the State of Palestine in this field, and Thanks South A fr ica , Comoros, Dj ibo u ti , B oliv i a ,

Bangladesh, C hile and Mexico for referring the situation in the State of P alestine to the

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I n t ernational C ri minal Court.

9. For these reasons, the OIC argues that no ju stification arises for the Court to forgo iss u an c e of

arrest warrants for Israeli o ffi c ia ls for crimes co m mi tt ed in the State of P alestine . The OIC

w i ll not entertain th e irrelevant arguments that have been put forward by those opposed to

a ccou ntabil i ty for perpetrators of internationa l crimes against the Palestinian peop l e . As stated

by former U.S. Ambassador for War Crimes I ssues , D a v id Scheffer, "I used to make this

theoretical international law argument, grounded in the V ienna Con vention on the Law of

Treaties, on behalf of t h e U .S. Government many years ago. Today it holds very l i tt l e

c r ed i b ili ty because of the character of the crimes at issue , the e vol uti on of i n ternational

crim inal law, and the lon gst anding p r inci p le of c r i m inal j urisdiction over one ' s own territory."

1 0 . Instead, the OIC w i ll highlight some of the fundamental principles of in t ernational law that

should guide the ICC .

I ll . The Oslo Accords are interim agreements and have no bearing on or relevance to the

ICC's adjudicative jurisdiction

7 Resolution on .the issue of Palestine and AI-Quds Ash-Sharif, Adopted by the 1 5 Session of the Islamic Summit

Conference, Banjul, 5 May 2024, NO, 1 / 1 5 - ( P A L I S )) , Paras 1 8 & 1 9 .

' The Self-Defeating Executive Order Against the International Criminal Court, David Scheffer, Just Security, I 2

June 2020.

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1 1. In its submission in 2020, the OIC demonstrated that the territory of the State of Palestine

comprised of the entirety of the West Bank, including East Jerusalem, and the Gaza Strip and

that the State of Palestine has complete sovereignty over the entirety of the territory.

Accordingly, the OIC argued that the sovereignty and sovereign rights of the State of Palestine,

includin g the ability to accept and confer ju ri sdict ion to the Court, in accordance with Article

9
1 2 of the Rome Statute, cannot be contested.

1 2 . The OIC also argued that the Oslo Accords do not present an obstacle to Palestine's

competence to c o nfe r jur i s d i ction to the Court. The Oslo Accords neither changed the status

of Israel as an occupying Power nor recognized I srael ' s sovereignty over any part of the State

of Palestine or gave sovereign rights to Israel, including criminal jurisdiction.""

13. Indeed, sp e c ial i n te r i m agreements between an o cc upied people and an occu p yin g Power

cannot d i mi n i sh or prejudice the rights of those un d er occupation, in accordance with the

p rov i s ion s of the Fourth Geneva Con v ention w h ic h ma k e it clear that no special arrangement

entered into between the occupying Power and the occupied te rri to ry shall prevail over the

provisions of the Fourth Geneva Convention affecting the situation of protected persons.''

1 4 . Moreover, amo n g the most elementa ry rights and b e ne fi ts secured by the Fourth Geneva

Convention is the right of the po p ul a tion of an o c cupied territory to the protection of the ru le

of law, without any e x cept i o n s . The ICRC commentary on Article 47 of the Fourth Geneva

Convention states that, "the re g ime set out in t h is p ro vis i on not onl y protects the inhab i tants

of the o ccu p i ed territory but also 'prote cts the separate e x istence of the State, its in s ti tu tions

and its laws.

Observations of the Organisation of Islamic Cooperation in relation to the proceedings in the Situation in Palestine,

16 March 2020, ICC-QI/I8-84.

" Observations of the Organisation of Islamic Cooperation in relation to the proceedings in the Situation in Palestine,

16 March 2020, I C C - 0 1 / 1 8. - 8 4 .

''Geneva Convention (IV) of 1949 relative to the Protection of Civilian Persons in Time of War, 12 August 1949,

Article 47.

Geneva Convention (IV) of 1949 relative to the Protection of Civilian Persons in Time of War, I2 August 1949,

ICRC Commentary of 1958, Article 47-Inviolability of Rights.

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l

15. Any other interpretation of the Oslo Accords would effectively recognize the transfer of a

sovereign title to an occupying Power, in violation of the prohibition of acquisition of territory

by force and the prohibition of the threat of use of force. Similarly, and recently the ICJ warned

that, "Israel's policies and practices amount to annexation of large parts of the Occupied

Palestinian Territory" '' and confirmed that "Israel is not entitled to sovereignty over or to

exercise sovereign powers in any part of the Occupied P ale s tini a n Territory on account of its

occupation. Nor can Israel' s security con c erns override the p rin c i p le of the p ro h i b i t i o n of

14

acqu isition of territory by force. "

1 6 . Therefore, P al e s ti n e ' s acceptance of the I C C' s j urisdiction was an acknowledgment of that fact

and an expression of its sovereign commitme nt to protect the rights of it s citizens and to see to

the punishment of those responsible for international crimes committed against them.'

Palestine , before and after the Oslo Accords, continued to prescribe cri m inal law and retained

16

prescriptive powers, in accordance with Art icle 64 of the Fourth Geneva Convention and to

peruse accountability for crimes against its citi z ens and its territory th ro u g h all avai l ab l e

international avenues.

1 7 . In this regard, the OIC agrees wi t h the A pp eals Chamber of the ICC when it said that " . . . t h e r e

may be merit in the argu me nt that the sovereign d ecision o f a State to relin q uish its j u r isdiction

in favour of the Court may well be seen as com p l y in g with the ' duty to exercise [its] crimina l

ju r is d i c tio n ', as envisaged in the sixth paragraph of the Preamble."

I 8. L i k e w i s e , the cl as s i fi c a t i on of certain parts of an occupied territory for a dmini s tr a ti v e purposes

has no bearing on the territorial integrity of the State concerned over those areas nor over the

ju ris d iction of the ICC. Indeed, the !CJ held that none of the events since 1 9 6 7 -- i n c l u d i n g the

13 International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied

Palestinian Territory, including East Jerusalem, Advisory Opinion, I 9 July 2024, Para 173.

' International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied

Palestinian Territory, including East Jerusalem, Advisory Opinion, 19 July 2024, Para 254.

' ' S e e, The State of Palestine, Declaration accepting jurisdiction of International Criminal Court ('Declaration'),

31 December 2 0 1 4 .

" Article 64 of IV GC states that "The penal laws of the occupied territory shall remain in force" and "the tribunals
16

of the occupied territory shall continue to function in respect of all offences covered by the said la ws. "

Appeals Chamber, Katanga and Ngudjolo, Judgment on the Appeal of Mr Germain Katanga against the Oral

Decision of Trial Chamber II of 1 2 June 2009 on the Admissibility of the Case, 25 September 2009, ICC-01/04-01/07­

1 4 9 7 , para. 85.

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Oslo Accords -- have altered Palestine's status as occupied territory or Israel's status as the

18
occupying Power. Any claim to the contrary is inconsistent with international law and can be

considered as an attempt to interfere with the territorial integrity of Palestine. Such claims

amount to a violation of the Preamble of the Rome Statute and has the practical consequence

of providing immunity to persons accused of having committed international crimes and

violations of international humanitarian law in occupied territory.

1 9 . Moreover, the Statute of the ICC constitutes a self-contained instrument. No other legal

instrument can restrict or qualify the jurisdiction of the ICC over the crimes listed in the Statute,

including Article 8(2)(b)(viii) which gives the ICC jurisdiction over acts of transfer of

population committed by an occupying Power to or from occupied territory." This reflects

continuing jurisdiction for international crimes with due recognition for the general principle

that the territory and sovereignty of a State Party is unaffected by the occupation of its territory

and that the ICC's jurisdiction over Rome Statute crimes is likewise unaffected by such an

occupation.

20. Finally, the Rome Statute contains a number of expressed references to international law not

interim agreements, that are intended to ensure that the ICC's jurisdiction is interpreted and

enforced in a manner consistent with international law, in particular, international humanitarian

law and human rights law, and with the purpose of ensuring accountability for crimes." This

has also been addressed in several key decisions to date, including the Afghanistan situation,"

the decisions in the Bangladesh/Myanmar situation,' and in the Situation in the State of

International Court of Justice, Legal Consequences for the Construction of a Wall in the Occupied Palestinian

Territory, Advisory Opinion, 09 July 2004, Para.78; International Court of Justice, Legal Consequences arising from

the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion,

19 July 2024, Para 87.

Rome Statue, Article 8(2(b(viii) which reads: "The transfer, directly or indirectly, by the Occupying Power of

parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the

population of the occupied territory within or outside this territory."


20
Including most famously, Article 21 "Applicable Law."

1 Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the

authorisation of an investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, 12 April

2019.

Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar, Decision on the Prosecution's

Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, I C C - R o C 4 6 (3 - 0 1 / I 8 - 3 7 , 06 September 2 0 1 8 ,

para. 30.

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Palestine.'

IV. Israel's presence in the State of Palestine is illegal which impacted the efficacy of the

Oslo Accords

2 1. The OIC concurs with the ICJ ru l i n g of 1 9 May 2024 that Israel's presence in the State of

Palestine is illegal and that under no circumstance can the Oslo Accords be invoked to

perpetuate this illegal situation. The OIC further contends that since the ICJ ruling confirmed

that Israel's practices systematically violates the basic fundamental principles of international

law, the prohibition of acquisition of territory by force, the prohibition of the use of force, the

prohibition of racial discrimination and apartheid, and the right to self-determination, invoking

the Oslo Accords is thus irrelevant.

22. ln its advisory opinion on Israel's policies and practices in Palestine, the ICJ concluded that

Israel's presence and that of its forces and settlers throughout the entirety of the State of

Palestine is illegal and must rapidly come to an end. Similarly, the ICJ also characterized

Israel's presence as "sustaine d abuse . . . o f its position as an occupying Power" and concluded

that "Israel has exercised its regulatory authority as an occupying Power in a manner that is

inconsistent with the rule reflected in Article 43 of the Hague Regulations and Article 64 of the

Fourth Geneva C o n v e n t i o n . 2 5

23. The ICJ also concluded that "in interpreting the Oslo Accords, it is necessary to take into

26
account Article 47 of the Fourth Geneva Convention" and that the Oslo Accords "cannot be

understood to detract from I s ra e l ' s obligations under the pertinent rules of international law

27
applicable in the Occupied Palestinian Territory. " The ICJ was very clear when it stated that

Situation in the State of Palestine, Decision on the 'Prosecution request pursuant to article 19(3) for a ruling on the

Court's territorial jurisdiction in Palestine', I C C - 0 L / 1 8 - 1 4 3 , 05 February 2 0 2 1 , para. 99.

' International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied

Palestinian Territory, including East Jerusalem, Advisory Opinion, I 9 July 2024, Para 26l

?' International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied

Palestinian Territory, including East Jerusalem, Advisory Opinion, I 9 July 2024, Para 14I

International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied

Palestinian Territory, including East Jerusalem, Advisory Opinion, 1 9 July 2024, Para 102.

27 International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the

Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, I9 July 2024, Para 1 0 2 .

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"Israel may not rely on the Oslo Accords to exercise its jurisdiction in the Occupied Palestinian

28
Territory in a manner that is at variance with its obligations under the law of occupation. "

24. Indeed, the Oslo Accords were intended to last for five years and to complement the applicable

rules and laws of occupation as they pertain to public order, on grounds that are already

recognized and established under the law of occupation as a permissible basis for regulation

by the occupying Power. The Parties then agreed to "exercise their powers and

responsibilities... with due regard to internationally-accepted norms and principles of human

29
rights and the rule of law. " As such, the Oslo Accords did not confer to Israel any powers

beyond those it already has as an occupying Power under international law.

25. The !CJ ruling of 1 9 May 2024, is a clear expression of the fact that Israel's illegal occupation

has no bearing or effect upon the sovereignty or sovereign rights of the State of Palestine. It is

also a clear affirmation of the fact that the ability of the occupying Power to exercise or limit

any form of authority in the occupied territory is subject to the limitations set by international

law, and not by an interim agreement.

26. Furthermore, any attempt to apply or give effect to an agreement in a manner inconsistent with

norms of jus cogens would have no legal effect. A peremptory or jus cogens norm enjoys a

higher rank in the international hierarchy than treaty law." Such norms are non-derogable and

have overriding character. As a consequence, neither another State nor an international Court,

can dispense Palestine from the obligation to comply with a peremptory norm and its ergo

omnes obligations: to investigate, prosecute, and punish or extradite individuals accused of

such acts.

28 International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied

Palestinian Territory, including East Jerusalem, Advisory Opinion, I9 July 2024, Para 140.

Article XIX, Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Washington D.C., 28

September I 995.
International Law Commission, Fourth report on peremptory norms of general international law (jus cogens) by

Dire Tladi, Special Rapporteur, 3 1 January 20 1 9, A/CN.4/727 and ICRC, 2 0 1 6 Commentary, Geneva Convention I,

Article 6, para. 1 6 3 ; See also T. Meron, 'The Humanization of Humanitarian Law', American Journal of

International Law, Vol. 94, No. 2, 2000, pp. 239-278, 252.

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27. Thus, any attempt to claim that the Oslo Accords have relieved Israel from its obligations under

international law, or have granted it the powers not sanctioned by international law, or have

altered the status of the Palestinian Territory occupied in 1967 or the sovereign rights within

that territory, could be interpreted as providing immunity for perpetrators of crimes.

28. As for arguments that full effective control, including exercise of criminal jurisdiction, of a

State Party over its territory is a prerequisite for the Court's jurisdiction, the OIC reiterates that

such arguments run counter and undermine the principle of complementarity, which already

limits the ICC to seizing its jurisdiction only when States are unwilling or unable to do so, and

exclude the Court's jurisdiction over crimes committed in cases of occupation or aggression,

particularly illegal occupations as is the case in the Situation in the State o


f Palestine."

29. Indeed, Palestine needs the jurisdictional assistance of the ICC in order to bring to justice

crimes committed on its territory resulting from Israel's illegal occupation of its territory. The

fact of the matter is that as long as Israel's illegal occupation of Palestine continues, Palestine

will be unable to many of its sovereign rights, including exercise full criminal jurisdiction, or

carrying out its duty to prosecute international crimes. This further proves the need of the ICC

to deliver justice inferred from Palestine's transfer of its power and authority to the Court. This

is in line with the previous conclusion of the Pre-Trial Chamber III, "when States delegate

authority to an international organisation they transfer a l l the powers necessary to achieve the

purposes for which the authority was granted to the o r g a n i s a t i o n . . . the Court may thus exercise

territorial jurisdiction within the limits prescribed by customary international l a w . 2

V. Conclusion

30. The State of Palestine is a Party to the Rome Statute which contains provisions authorizing

the ICC to prosecute the crimes of genocide, crimes against humanity, war crimes, and the

crime of aggression. Palestinian victims should not be the exception to the Rome Statute and

' Rome Statue, Article 17.

situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article

I5 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People's Republic of

Bangladesh/Republic of the Union of Myanmar, ICC-0119-27, 14 November 2 0 1 9 , para. 60.

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its protection and Israeli perpetrators are not above the law.

3 1 . The OIC deplores the positions of some states that apply double standards and support the

brutal aggression against the Palestinian people, granting the Israeli occupation immunity and

providing it with impunity. The OIC affirms that these positions are inconsistent with

international law and will only increase the cycle of violence and destruction, fuel extremism,

and escalate the conflict in the region, further exposing the Palestinian people to international

crimes that fall under the jurisdiction of the ICC.

32. The OIC reiterates its position that the ICC must be able to play its role in ensuring justice for

all victims of intern a ti o nal crimes under the j urisdiction of the Rome Statute, without fear or

favor, and equally across all si tu at i o n s . To argue otherwise is to resign to the saying that legal

r es pons ibilit y sh o ul d not extend to the powerful or to the allies of the powerful. To deny

Palestinian v ic t i ms justice in order to serve sel fi sh interests of perpetrators of worst crimes is

n o th ing short of deh um ani z ation and rac i sm.

33. The OIC also regrets the continued attacks against and targeting of the ICC, its of fi cials , and

those cooperating with it and ca ll s for respect for the impa rt iali ty and ind ep endence of the

Court. The OIC remind s that the responsibilit y of the I CC and that of its States Parties is

towards the v i c ti m s of i n tern at i o nal cri m es, not the perpetrators of the most serious cri m es of

concern to the in t e rn atio na l comm u nit y as a whole; towards endin g im p unity , not perpetuating

immunity; towards acco u nta b ili ty, not complicity .

S amir Diab

Assistant Secretary-General for Palestine and AI-Q uds Affairs

Org a ni sa tion of I s l a m i c Cooperation

Signed on 05 August 2024

At Jeddah, Kingdom of Saudi Arabia

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