JUSTICE - No. 66

32 No. 66 JUSTICE Court. 26 Furthermore, the judge stated that given the lack of clarity regarding the borders of “Palestine,”which is an“emerging State” that is recognized only by some countries and whose borders will be determined in future negotiations, there is room for relating to the division of powers determined in the Oslo Agreements. Accordingly, in the words of the Judge: “the Prosecutor may exercise her investigative competences under the same circumstances that would allow Palestine, as a State Party, to assert jurisdiction over such crimes under its legal system, namely by duly taking into account the repartition of competences according to the Oslo Accords.” 27 In light of this, the Court's territorial jurisdiction is limited, in his view, to the crimes falling within the criminal jurisdiction of the Palestinian Authority, which covers offenses by Palestinians in Areas A and B and does not cover offenses in Area C and East Jerusalem or any offenses by Israelis in any of the Areas. Parenthetically, the judge also noted that without the cooperation of the directly interested States (i.e. Israel), the Prosecutor has no real chance of preparing a trial- ready case. As mentioned, following the Chamber's decision, the Prosecutor announced the opening of an investigation. It is expected that this will relate to all actions in the West Bank, East Jerusalem and the Gaza Strip starting from June 13, 2014, including IDF actions in Operation Protective Edge (July 8, 2014 – Aug 26, 2014) and against the Palestinian demonstrations along the Gaza border beginning in March 2018. It will also include activity related to the settlements in the West Bank and East Jerusalem, which are defined in the Rome Statute as a war crime of transferring parts of the civilian population of the occupying power into the occupied territory. 28 The investigation will relate to all the actions of all parties, that is, to crimes by Palestinians as well as Israelis. The legal analysis that forms the basis of the Prosecutor's and the majority opinion's conclusion that the ICC has jurisdiction over this situation is far from convincing. First, as explained by the minority judge, Judge Kovács, the mere fact that Palestine has the status of a“State Party” to the ICC Statute is not sufficient for it to be considered a“State” for the purpose of granting jurisdiction to the Court, which applies only to crimes committed on the territory of a“State.”“Palestine”does not meet the requirements set forth in international law for an entity to be considered a State; it lacks effective control over the territory concerned, as admitted by the Palestinian Authority itself. The Palestinian Authority's claim is that the territory is occupied by Israel. If the territory is occupied, then the effective control over it must, by definition, rest with Israel. This stands in contradiction to the notion that the Palestinians have effective control over the same territory. Moreover, it contradicts the declarations of the Prosecutor herself, who previously explained that“territory”of a State covers only those“areas under the sovereignty of a state.” 29 No Palestinian State existed before Israel took control over the territories in 1967, and no State can emerge while Israel lawfully retains effective control. Furthermore, as pointed out by Judge Kovács, there are numerous statements, including by official Palestinian representatives, whereby the State of “Palestine” is an aim to be achieved, rather than an already existing state. Second, as for the territory of this“State,” the majority judges rely on the UN General Assembly resolution that upgraded the status of “Palestine” to an“Observer State. ”They conclude that since this resolution was based on the right of the Palestinian people for self- determination and independence in the “Palestinian territory occupied since 1967,” this can therefore be viewed as the territory of the Palestinian State for the purpose of the Court's jurisdiction. This utterly conflates law and politics. The judges rely on a non-binding, disputed political resolution, which itself refers to potential rights of the Palestinian people, as a basis to determine that a State exists (although it does not) and that this State has known borders (although these have never been determined). As Judge Kovács rightfully pointed out, the Palestinians' right to self- determination, even if one accepts that such a right exists, cannot automatically produce a sovereign Palestinian State on all the territory up to the 1967 lines. The majority judges disregard the fact that there are no acknowledged 26. ICC, ”Judge Péter Kovács’ Partly Dissenting Opinion” (Feb. 5, 2021), ICC-01/18-143-Anx1, available at https:// www.icc-cpi.int/RelatedRecords/CR2021_01167.PDF 27. Id. , para. 370. 28. Article 8(2)(b)(viii), UN General Assembly,“Rome Statute of the International Criminal Court”(last amended 2010) (July 17, 1998), ISBN No. 92-9227-227-6, available at https:// www.refworld.org/docid/3ae6b3a84.html 29. Office of the Prosecutor, ICC, “Report on Preliminary Examination Activities (2019)” (Dec. 5, 2019), para. 47, available at https://www.icc-cpi.int/itemsDocuments/191205- rep-otp-PE.pdf