ICC-01/18 Prosecution Response (PDF)

ICC-01/18, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States (30 April 2020) … 10. Some participants have also suggested that confirmation of the Court’s jurisdiction would in their view negatively impact the ongoing peace process. Yet such matter...

ICC-01/18, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States (30 April 2020) … 10. Some participants have also suggested that confirmation of the Court’s jurisdiction would in their view negatively impact the ongoing peace process. Yet such matters are not ‘jurisdictional’ in nature, but instead potentially relate to the Prosecutor’s discretionary assessment under article 53(1)(c) of the Statute. She has already satisfied herself that the peace process—in her understanding of its present status—does not establish substantial reason to believe that an investigation would not serve the interests of justice, and this is not a matter which is susceptible of judicial review. Consequently, even if the Chamber were to disagree with the Prosecutor’s assessment (for the sake of argument), this would not be a proper consideration for it to take into account for the purpose of article 19(3) of the Statute. To the contrary, it should promptly issue the requested ruling on the merits. … 20. It is implicit in this distinction that the drafters of the Statute did not intend all disputes between States Parties to be settled by organs of the Court. Some matters are reserved for the States Parties to resolve inter partes, or through other means of international dispute resolution. Consistent with the principle of compétence de la compétence, the question whether a matter is a “judicial function”—such that article 119(1) applies—is ultimately a matter for the Court’s own determination. … B.3. No State Party employed the mechanisms of the Statute to challenge Palestine’s accession to the Statute 24. In ruling on the Request, the Prosecution agrees with some participants that the Chamber should consider that it is bound to accept the validity of Palestine’s accession to the Statute, given the absence of any timely measures by States Parties under article 119(2) to resolve any error which may have occurred. Subjective expressions of disapproval, or unilateral measures, are wholly insufficient, and it is not for the Court to attempt to resolve any ambiguities in the stance of States Parties. Indeed, such an exercise is potentially fraught with difficulty. Either an entity is a valid State Party— entailing the acceptance of its Statehood by the Court, for its own purposes—or it is not. The Statute does not foresee any ‘halfway’ status, nor would it be consistent with the object and purpose of the Court for the status of a State Party to be uncertain for a sustained period after its instrument of accession has been accepted. Under the Statute, accession represents a single act by which the acceding State Party accepts the jurisdiction of the Court, and other States Parties (unless they object according to the mechanisms of the Statute) consent to the exercise of the jurisdiction of the Court visà-vis the acceding State Party. This must be done in a timely fashion. 25. As Buchwald and Rapp recall, when accepting Palestine’s instrument of accession to the Statute, the UN Secretary-General (as depositary) reminded ICC States Parties that it was for them to resolve any legal issues arising from this act. Yet the Prosecution notes that no State Party triggered dispute resolution measures under article 119(2) of the Statute concerning Palestine’s accession to the Statute. While one State Party, Canada, stated that it objected to the accession, it is not known to have entered into article 119(2) negotiations (either with Palestine, or with those States Parties that accepted the validity of Palestine’s accession). A small number of other States Parties (including the Netherlands, Germany, and the United Kingdom) made statements in the ASP but did not apparently object to the accession as such, nor did themselves initiate article 119(2) proceedings. Nor did any State Party take measures under article 119(2) when it was clear that the Prosecutor accepted the validity of Palestine’s declaration under article 12(3) of the Statute, and its referral, such that she proceeded to a substantive examination under article 53(1) rather than promptly determining that the matters raised were manifestly outside the Court’s jurisdiction. The Prosecutor’s activities in this matter were reported annually to the ASP. … C. Alternative argument: Palestine is a State for the purposes of the Statute under relevant principles and rules of international law [para. 40-56] … 41. The Prosecution agrees with most participants that the ‘declarative’ theory— endorsing the Montevideo criteria and with emphasis on the criterion of independence or territorial effectiveness—is generally preferable to determine Statehood.104 However, as one participant also notes, the Montevideo criteria “are neither exhaustive nor immutable” and “other factors may be relevant, including self-determination and recognition, while the relative weight given to such criteria in particular situations may very well vary”. Statehood should not be limited to a mere ‘empirical’ assessment of the existence of effective control. Significantly, ‘effectiveness’ is not sufficient on its own to determine Statehood. As commentators have noted: “[w]hether the birth of a new state is primarily a question of fact or law and how the interaction between the criteria of effectiveness and other relevant legal principles may be reconciled are questions of considerable complexity and significance”. Consistent with the above, in its Request the Prosecution explained the context and case-specific scenarios in which the Montevideo criteria have been flexibly applied. That some participants disagree with the applicability of these principles to Palestine does not mean that the general legal and factual propositions are incorrect; they are not. 42. First, sovereignty over the occupied territory does not fall on the Occupying Power but on the ‘reversionary’ sovereign. While Shaw disagrees that sovereignty over the Occupied Palestinian Territory may reside with the Palestinian people, by arguing that “sovereignty and title to occupied territory remain with the dispossessed sovereign and not with the population as such”, he also acknowledges that “[w]ith regard to Palestine, the position is complicated by the fact that the last recognised sovereign of the territory in question was the Ottoman Empire which formally renounced its rights and title in the Treaty of Lausanne, 1923”. Against this backdrop and as some participants have posited,114 it makes sense that “[u]nder contemporary international law and in view of the principle of self-determination, the said sovereignty is vested in the population under occupation”. Indeed, while “[t]raditionally, sovereignty had been attached to the state that had held title to the territory prior to occupation[,] [c]urrently, the focus has shifted to the rights of the population under occupation”. This approach is consistent with the shift in the law on occupation which focuses on the protection and rights of the occupied population instead of the political interests of the ousted regime and political elites. 43. Second, Shaw also restricts the flexible application of the Montevideo criteria to certain scenarios and submits that “deficiencies in governmental effective control may possibly be assuaged (but not ignored) in traditional decolonization situations where there is an ongoing civil war or a war of colonial suppression”. According to him, selfdetermination may serve to mitigate the absence of effective governmental control only “where the colonial power is contesting the proclaimed independence of the accepted colonial self-determination unit” (such as Guinea-Bissau), or “where the new state is in the throes of a civil war” (such as the former Belgian Congo). He posits that in those cases, “the essential factual background was that of internal conflict, where there was no dispute as to Statehood as such but rather armed conflict as to the identity of the appropriate governmental authority”. 44. The Prosecution expressly noted that “in cases where a peoples’ right to selfdetermination is recognised, entities claiming Statehood have been recognised as such despite not having stringently fulfilled the Montevideo criteria, particularly in the context of decolonization”, and cited the same examples as Shaw. However, the Prosecution considers that other entities in different contexts may under certain circumstances also warrant a less restrictive application of the Montevideo criteria, consistent with the evolution of international law. For example, while the right of peoples to self-determination was initially considered revolutionary, it is now widely acknowledged—and is indeed a jus cogens norm with erga omnes character. Likewise, conflicts evolve. Nor are two entities identical. Notably, the Montevideo criteria arose out of a meeting of independent Latin American States in 1933 that had emerged out of colonial status and were eager to demonstrate their personality and counter any last vestige of claims by the former colonial power. Yet the factual and political contexts in which Guinea-Bissau, the former Belgian Congo or Croatia and Bosnia and Herzegovina emerged were very different both from each other and from those that faced the Latin American States in 1933. Moreover, these new States lacked the same degree of effectiveness. Consequently, the Montevideo criteria were adjusted—and the criterion of effective government relaxed—to determine Statehood of these entities. The Prosecution considers that similar reasonable adjustments are possible for other entities in other contexts, if circumstances so warrant it. 45. Third, Shaw further suggests that UN membership and recognition by the former sovereign holder was determinative for “less effective” entities to achieve Statehood. However, as commentary and other participants have rightly noted, Statehood and UN membership should not be conflated; indeed, non-State entities have become UN members, and other States whose status was uncontested did not become UN members until recently. Moreover, recognition by the previous holder is hardly possible for Palestine, since the Ottoman Empire (the last clear sovereign) is long defunct, and in February 1947 the United Kingdom referred the question of Palestine to the United Nations. In any event, a consensual process is not always possible, nor required. Thus, Guinea Bissau declared its independence in September 1973, and as soon as 2 November 1973 93 states voted in favour of UNGA Resolution 3061 (XXVIII) noting “the recent accession to independence of the people of Guinea-Bissau thereby creating the sovereign state of the Republic of Guinea-Bissau”, despite western States’ denial that the criteria of Statehood had been fulfilled. Portugal only recognised the independence of Guinea Bissau a year later. C.2. It is appropriate to apply the Montevideo criteria less restrictively to Palestine, for the purposes of the Rome Statute 46. In expressing its view that Palestine is a ‘State’ for the purposes of the exercise of the Court’s jurisdiction, the Prosecution took into account that Palestine partially met the Montevideo criteria. Although Palestine has a population, a demonstrated capacity to act in the international plane and, according to the Prosecution, a territory generally defined with reference to the Occupied Palestinian Territory, its authority appears largely limited to areas A and B of the West Bank and Gaza. Indeed, Israel has annexed East Jerusalem and occupies the West Bank and Gaza. Moreover, since 2006 Gaza is governed by Hamas. However, in reaching its alternative conclusion the Prosecution considered additional factors. In particular: (1) the rights of the Palestinian people to self-determination and to an independent and sovereign State; (2) the consequences of certain practices contrary to international law in the Occupied Palestinian Territory; (3) the significant number of recognitions regarding Palestine; (4) that the Occupied Palestinian Territory are not terra nullius nor can be considered under the sovereignty of another State; and (5) Palestine’s status as a State Party and the object and purpose of the Rome Statute. A number of participants seem to oversimplify the Prosecution’s approach and do not engage with its multi-layered assessment. Further, the Prosecution’s alternative position is consistent with international law. C.2.a. The Palestinian people have a right to self-determination and it has been recognized that this implies a right to an independent and sovereign State of Palestine 47. It is well established that the Palestinian people have a right to self-determination, and that in their case this implies a right to an independent and sovereign State in the Occupied Palestinian Territory. Contrary to the suggestion of some participants, the Prosecution distinguished between the right of people to self-determination and fulfilment of the criteria of Statehood as such. The Prosecution agrees that it is not necessarily the same to say that a people enjoy such a right and to say that they have already achieved a sovereign State. It also explained that self-determination can be realised through means other than independence (such as through free association and integration with another State on a basis of political equality). Nonetheless, in the particular context of the Palestinian people, their right to self-determination has long been connected to an independent State. Not only does the historical background suggest it, but also since 1974 the UN General Assembly has expressly recognised the right of the Palestinian people to an independent State. This bears relevance… 48. In this context, it may also be relevant that that the Palestinian territory is under occupation, and has been for many years, and thus the people of Palestine may on this basis arguably be entitled to “external” self-determination (which has been defined as a “positive entitlement to secession”, as opposed to qualified “internal selfdetermination”, that is, to achieve self-determination within the framework of the existing State). As the Supreme Court of Canada found in 1992: "the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external selfdetermination because they have been denied the ability to exert internally their right to self-determination." … C.2.b. The exercise of the Palestinian people’s right to self-determination is being obstructed by practices contrary to international law 50. Since violations of the Fourth Geneva Convention are not mere “political issues”, these are properly taken into account in considering their effect on the peremptory right of the Palestinian people to self-determination. This is consistent with scholarship which has suggested that: "There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts." 51. Although Crawford did not consider this proposition applicable to Palestine in 2006, because the parties appeared to be committed to permanent status negotiations, by 2014, based on the beginning of Palestine’s admission to inter-governmental organisations, he observed that Palestine “seems to be eking its way toward statehood”. Since then, Palestine has acceded to numerous treaties and protocols, including key human rights and international humanitarian law instruments. C.2.c. Palestine has been recognised by a significant number of States 52. The Prosecution considered that Palestine has been bilaterally recognised by at least 138 States.167 However, it never posited that this was a determinative criterion, nor suggested that it should be given such weight. However, scholarship does suggest that widespread recognition is a relevant factor, and so it would be improper to ignore this fact altogether… C.2.d. No other State has sovereignty over the Occupied Palestinian Territory 53. The fact that Israel may have valid competing claims over parts of the West Bank does not render this territory terra nullius (defined as “land not under the sovereignty or authority of any state”) susceptible to acquisition through original occupation, a doctrine which international law now views very restrictively. Indeed, the ICJ has found that even in recent history “territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius”. 54. Further, both parties have not behaved in a manner suggesting that sovereignty over the Territory is in “abeyance”, which means that sovereign title is suspended for a period of time. This notion entails an implied obligation of the parties not to act in such a way as to render fulfilment of the ultimate objective of the arrangement impossible. However, violence has continued,178 settlements have consistently expanded, a barrier splitting the West Bank in deviation of the Green Line is being construed, and Israel has indicated its willingness to consider de jure annexation of parts of the West Bank. 55. Significantly, no State other than Israel claims any part of the Occupied Palestinian Territory. Nor are Jordan and Egypt the legitimate reversionary sovereigns. Nor can Israel acquire sovereignty over the Occupied Palestinian Territory on the basis of its belligerent occupation of it; annexation of territory infringes international law. Moreover, Israel unilaterally disengaged from Gaza in 2005. Yet, it cannot be denied that the Occupied Palestinian Territory must have a sovereign. C.2.e. Palestine’s status as a State Party must be given effect 56. The Court can operate in the territory of “less effective” States in order to realise its mandate,… … D. The Oslo Accords do not Bar the Exercise of the Court’s Jurisdiction 62. In the submission of the Prosecution, nothing in the Oslo Accords bars Palestine from accepting the jurisdiction of the Court, or the exercise of that jurisdiction by the Court. D.1. The Oslo Accords regulated a gradual transfer of power to the Palestinian Authority over most of the West Bank (excluding East Jerusalem) and Gaza 63. The Prosecution did not ignore—nor did ask the Court to ignore—the Oslo Accords;219 instead, it submitted that the Oslo Accords do not preclude the Court from exercising its jurisdiction. Nor did the Prosecution “misrepresent” the Oslo Accords; instead, it acknowledged that the Accords created the Palestinian Authority (“PA”) and it explained in detail the PA’s limited authority and criminal jurisdiction in the Occupied Palestinian Territory resulting in part from a partial implementation of the Oslo Accords. The Prosecution explained that Israel would maintain “sole criminal jurisdiction” over offences committed in territories falling outside the general jurisdiction of the PA (such as settlements) but also Area C (unless crimes were committed by Palestinians and their visitors and were not related to Israel’s security interests), and offences committed by Israelis. 64. Yet some participants seem to overlook that the ‘Oslo Accords’ or ‘Oslo Process’ sought to give effect to the Palestinian people’s right to self-determination, and to afford selfgovernance to the Palestinian people in the West Bank and Gaza in stages (fourphase “redeployments” of Israeli forces “to specific military locations”) during a transitional period not exceeding five years on the basis of UNSC Resolutions 242 (1967) and 338 (1973). The transfer would also affect Area C of the West Bank, with the exception of “the issues of permanent status negotiations and Israel’s overall responsibility for Israelis and borders”. But permanent status negotiations were to be commenced “as soon as possible, but not later than May 4, 1996” and would cover “remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.” 65. Significantly, the two sides viewed “the West Bank and the Gaza Strip as a single territorial unit, whose integrity [would] be preserved during the interim period”. The jurisdiction of the PA would “cover West Bank and Gaza Strip territory, except for issues that [would] be negotiated in the permanent status negotiations [and those] powers and responsibilities not transferred”. Palestinian people from the West Bank (including Jerusalem) and the Gaza Strip were to participate in the election of the PA. 66. In conclusion, as one participant described it, after Oslo II “[t]he rudiments of a Palestinian state were now being put in place”. 67. However, as explained in the Request, the process halted after March 2000. The last redeployment was not effected, the PA did not assume the envisaged competences, and an agreement on the permanent status issues was not reached. Yet, notwithstanding any incomplete and ongoing political process, it is apparent from the Accords that the PA was to assume territorial control over most of the West Bank, excluding East Jerusalem, and Gaza, with modifications to accommodate for the settlements and borders. This is consistent with the formula repeatedly used by the international community calling for two States based on the 1967 lines with equivalent land-swaps agreed upon by the parties. 68. Because of the foregoing, and considering the fact that the Occupied Palestinian Territory must have a sovereign, sovereignty under these circumstances would seem to be best viewed as residing in the Palestinian people under occupation. As noted above, the Occupied Palestinian Territory cannot be terra nullius, nor does sovereignty appear to be in “abeyance”, nor can Israel assert sovereignty over it, as Occupying Power, nor can any other State. D.2. The Oslo Accords are best viewed as a transfer or delegation of enforcement jurisdiction 69. Some participants posit that Palestine cannot delegate jurisdiction to the Court over Area C, or over Israeli nationals for conduct in the Occupied Palestinian Territory, because Israel did not transfer these competences in the Oslo Accords. Yet they misapprehend the principle nemo dat quo non dabet that they invoke, and disregard the law on occupation. 70. While the Oslo Accords were concerned with a staggered transfer of power from Israel to the PA, this was limited by the principle that Israel could only transfer those powers beyond its borders which it actually possessed—i.e., only those powers that “the Israeli military government and its Civil Administration” derived from its status as an Occupying Power. Indeed, given “the basic legal adage nemo dat quod non habet, the Occupying Power cannot transfer to a third State a valid title – one that it does have - over the occupied territory”. Thus, Israel—as the Occupying Power—did not have sovereignty (or plenary prescriptive jurisdiction) that it could transfer to the PA. Sovereignty remained with the ‘reversionary’ sovereign—held by the Palestinian people until such time as a State could exercise it—and plenary prescriptive jurisdiction with their representatives. 71. Further, while the law of occupation only permits the Occupying Power an attenuated form of prescriptive jurisdiction over the occupied territory, it affords exclusive powers of enforcement over it for as long as the occupation lasts, which the Occupying Power can delegate to the representatives of the occupied population as appropriate. 72. The international community has acknowledged the legal limitations of Israel’s authority over the Occupied Palestinian Territory. For example, in November 2019 the ECJ held that “[u]nder the rules of international humanitarian law, these territories [occupied in 1967] are subject to a limited jurisdiction of the State of Israel, as an occupying power, while each has its own international status distinct from that of that State”. Acknowledging this legal restriction is not to deprecate the genuine achievement of the Accords. 73. Against this backdrop, the Oslo Accords are better characterised as a transfer or delegation of enforcement jurisdiction which does not displace the plenary jurisdiction of the representatives of the Palestinian people, and do not bar the exercise of the Court’s jurisdiction. Notably, the Appeals Chamber in a different context has recently confirmed that agreements limiting the exercise of enforcement jurisdiction over certain nations are “not a matter for consideration in relation to the authorisation of an investigation under the statutory scheme”. Likewise, any limitation to Palestine’s enforcement jurisdiction arising from Oslo does not affect the exercise of the Court’s jurisdiction; rather, it may become an issue of cooperation or complementarity during the investigation or prosecution stage. 74. Finally, that article 12(2) reflects the most accepted bases for the assertion of criminal jurisdiction at the domestic level, does not mean that the ICC jurisdiction must necessarily mirror how States Parties exercise their own criminal jurisdiction. There need not be exact symmetry between the jurisdictional framework adopted by the national legislator and the ICC. Indeed, as a participant has rightly noted: “[a]rticle 12(2)(a) authorizes the Court to exercise jurisdiction over ‘the territory’ of a State and not over ‘the territory over which their court’s exercise criminal law jurisdiction’”. Moreover, “[i]tis not uncommon that a domestic jurisdiction may not criminalize a conduct classified as a crime under the Rome Statute. This reality is, in fact, why the Court was established – to fill in accountability gaps, and hence, end impunity”. D.3. State practice demonstrates that Oslo provisions derogating from the right of the Palestinian people to self-determination do not apply 75. The Palestinian Authority has entered into international relations beyond what Oslo expressly permitted—and this is widely accepted by the international community. Although the Oslo Accords limited the PA’s capacity to engage in foreign relations, these restrictions are not reflected in State practice since the Palestine has concluded numerous international agreements, and has been permitted to accede to the Rome Statute. Indeed, it has assumed obligations under both international human rights law and international humanitarian law to the extent that it is feasible considering the occupation, but without regard to limitations arising from the Oslo Accords. Conversely, Israel has not concluded international agreements on behalf of the territories that it occupies. D.4. The object and purpose of the Oslo Accords must be given effect 76. The fact that those participating in Oslo were skilful negotiators does not detract from the fact that the Occupying Power and the occupied population were not in the same factual position, or could be seen as “equals” for the 50 years that the occupation has lasted. does not mean that the Oslo Accords are invalid. While it would indeed be incongruous to invoke the Geneva Convention to undermine the Accords, it is equally incongruous to invoke the Oslo Accords “to trump rather than translate” the objective that they sought to achieve, i.e. self-governance for the Palestinian people over most of the West Bank and Gaza. 77. For these reasons, the Oslo Accords cannot be interpreted as justifying the expansion of the settlements or derogating from the inalienable rights of the Palestinian people. The ICJ has found the settlements to be contrary to international law and the Accords clearly state that “[n]either Party [would] be deemed, by virtue of having entered into [it], to have renounced or waived any of its existing rights, claims or positions”. Neither the Palestinian Liberation Organisation (“PLO”) nor the PA have renounced the realisation of the right of self-determination of the Palestinian people in the form of an independent and sovereign State in the Occupied Palestinian Territory. … 79. Likewise, undisputed territorial borders are not required for the Court to exercise its jurisdiction, nor are they a pre-requisite for Statehood; indeed a State may exist despite conflicting claims over its territory. This is consistent with the view advanced by some participants that “a border dispute should not impede the Court to exercise in toto jurisdiction since there are certain places that undoubtedly fall within the territory of Palestine”. … E.4. The principle of uti possidetis juris cannot derogate from the rights of the Palestinian people 92. Since the Court need not determine the holder of a valid territorial title, the principle of uti possidetis juris does not appear relevant to the Court’s determination. Further, the submission of the UKLFI et al. that Israel holds title over the totality of the territory of the British Palestinian Mandate (because it is the only State which emerged from it) does not appear correct. The doctrine of uti possidetis provides that States emerging from the dissolution of a larger entity inherit as their borders those administrative boundaries which were in place at the time of independence. It is dependent upon there being clear boundary delimitations prior to independence. For example, the administrative divisions imposed by Spain were adopted as the borders of the new States that emerged in Latin America. This principle has also been applied to the new States on the territory of the former Yugoslavia and to the boundaries between those States, which followed pre-existing internal divisions. 93. However as the OPCV has correctly noted, this principle has never been applied “to preclude a people representing the majority within a Mandatory administrative unit from advancing its national aspirations, allowing only the minority group to realize such aspirations”. Nor can this principle be invoked to void the right of the Palestinian people to self-determination. Israel did not claim to be the successor of the British Mandate. Moreover, the plain text of the Covenant of the League of Nations, which established the Mandate System, recognised the rights of “certain communities” to become “independent nations” in the territory of mandated Palestine.342 According to article 22 of the Covenant, “[c]ertain communities formerly belonging to the Turkish Empire [had] reached a stage of development where their existence as independent nations [could] be provisionally recognized subject to the rendering of administrative advice and assistance by [the] Mandatory until such time as they [were] able to stand alone”. This included the territory of Palestine, which was designated a “Class A” mandate. 94. It is also relevant that, as noted above, after the United Kingdom referred the question of Palestine to the United Nations, the General Assembly passed Resolution 181 (II) (or Partition Plan) on 29 November 1947. The Partition Plan recommended the creation of two independent States, one Arab and one Jewish, with a “special international regime” for the city of Jerusalem. The Partition Plan was not implemented and, on 14 May 1948 Israel declared its independence. The Mandate immediately terminated with formal British withdrawal from the area. On 1 October 1948, a National Palestinian Council meeting in Gaza declared itself to be the provisional government of “All-Palestine” over the Arab State delineated in the Partition Plan. The government failed to survive350 and the subsequent Arab-Israel war terminated with the 1949 armistice agreements between Israel and Egypt, Jordan, Lebanon and Syria.351 Territory under Israel’s control did not include the West Bank, East Jerusalem or Gaza but it was significantly greater than the UN Partition Plan – 78% of the Mandate. 95. Finally, the international recognition of the Palestinian people’s right to selfdetermination and to a sovereign State in the Occupied Palestinian Territory further confirms that the UKLFI et al. position cannot stand. E.5. Palestine’s lack of effective control in Gaza does not preclude the exercise of the Court’s jurisdiction. 96. Several participants have disagreed with the Prosecution’s reference to the Georgia situation because Georgia is an undisputed State who lost effective control over part of its territory. Notwithstanding the differences between Georgia and Palestine, in the Georgia situation the Court has exercised its jurisdiction over the territory of a State Party, even though the State does not have full control over it. Hence, once Palestine is considered a State Party for the purposes of the Rome Statute, its lack of effective control over Gaza (due to Hamas’ control since 2006) is insufficient to bar the Court’s jurisdiction. Significantly, the West Bank and the Gaza Strip were viewed “as a single territorial unit, whose integrity [would] be preserved during the interim period” in the Oslo Accords. UN resolutions have consistently considered Gaza to be part of the Occupied Palestinian Territory.