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International
Criminal
• 7
Court
PRE-TRIAL C H A M B E R I
Public Document
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Court to:
(Participation/Reparation)
The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence
REGISTRY
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
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
4. On 22 July 2024, the PTC granted the OIC pennission to submit observations to be filed
4
public.
II. Background
5. The OIC is the second largest intergovernmental organization, after the United Nations, with
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
Observations of the Organisation of Islamic Cooperation in relation to the proceedings in the Situation in Palestine.
' Decision on requests for leave to file observations pursuant to rule I 03 of the Rules of Procedure and Evidence, 22
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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
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
7
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
I ll . The Oslo Accords are interim agreements and have no bearing on or relevance to the
7 Resolution on .the issue of Palestine and AI-Quds Ash-Sharif, Adopted by the 1 5 Session of the Islamic Summit
' 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
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
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
Observations of the Organisation of Islamic Cooperation in relation to the proceedings in the Situation in Palestine,
" 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,
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l
15. Any other interpretation of the Oslo Accords would effectively recognize the transfer of a
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
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
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
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
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
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,
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
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
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
' 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
29
rights and the rule of law. " As such, the Oslo Accords did not confer to Israel any powers
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
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
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
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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
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,
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
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
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
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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
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
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
S amir Diab
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