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The jurisdictional argument you're alluding to is based on this bit of the Rome Statute: > the Court may exercise its jurisdiction if one or more of the follow

The jurisdictional argument you're alluding to is based on this bit of the Rome Statute: > the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute ... (a) The State on the territory of which the conduct in question occurred ... The alleged crimes occurred in Gaza, so the ICC considers itself to have jurisdiction if the associated state is a signatory. The argument goes that the PLO signed the Rome Statue on behalf of the "State of Palestine", which claims Gaza as part of its territory. The questionable part to me is that in reality, Hamas is the government of Gaza. The international community can declare another entity it prefers as the de jure government, but it's fairly meaningless when that other entity has never controlled or governed Gaza. Even if we accept the idea that the ICC has jurisdiction under its own rules, that means nothing to a country like Israel which never accepted those rules, and also can't really expect a fair trial.

runarberg 1y ago
> The questionable part to me is that in reality, Hamas is the government of Gaza. As far as I remember Hamas welcomed the ICC indictments against the Israeli officials (but opposed the now dropped indictments against the Hamas leaders). But also how is this different from the Russian de facto governance over Donbas and other Russian occupied regions in Ukraine, where the alleged crimes occurred? Or am I mistaken in believing that the indictments over Putin are less controversial?
- dlubarov 1y ago
  With the ICC's indictment of Putin, my understanding is that at the time Ukraine hadn't formally ratified the Rome Statue yet (so the clause I quoted wouldn't apply), but they had accepted the ICC's jurisdiction in a more limited capacity which gave the ICC a slightly different way of asserting jurisdiction. As far as I know, Hamas is not a party to the Rome Statue and also has not accepted ICC jurisdiction the way Ukraine did; Hamas welcoming a particular case doesn't really help with the ICC's jurisdictional claim. (I'm also not sure the ICC would allow Hamas to become a party or accept jurisdiction, since they're operating in a sort of alternate reality where a different entity is the government of Gaza, but that's another matter.)
  - runarberg 1y ago
    I’ve heard the story before that the Palestinian Authority in the West Bank applied to the ICC as a way to get back at Hamas, in the hope that the ICC would investigate Hamas. However reading the material here (primarily for the sibling thread) I’m starting to wonder if that narrative is true. It seems like from the get-go Israel—not Hamas—has been the primary target of investigation. The investigations I have looked at seem to primarily be focused on settler policy (including settler violence) in the West Bank, and Israel’s bombing campaign in Gaza. Meanwhile there isn’t much investigation into Hamas. Even the 2024 indictments against Hamas members seem to not be based on internal investigations by the court, but rather by accusations in what smells like both-side-ism from afar. In fact that seems to be a pattern. The court finds war crimes committed by Israel, and then tags on crimes which Israel claims Hamas is doing (stuff like using human shields, etc.). So what is interesting here, and perhaps runs counter to your guesses, is that I can‘t actually find Hamas disputing jurisdiction. Last November they disputed the impartiality of the court (i.e. what I call both-side-ism) but not jurisdiction. Israel has however disputed jurisdiction from the beginning, but not on the grounds you guessed above, rather their argument is based on the fact that Palestine is not a sovereign nation, so they cannot apply to become a member of the court. This was settled in 2021. Other member states had already recognized Palestine as a sovereign enough state to be a legitimate member in 2014, and a formal investigation into crimes committed in all Palestine territories began in 2015. This included Gaza (governed by Hamas) and East Jerusalem (governed by Israel). Meanwhile USA’s primary dispute seems to be that Israel prosecutes war crimes committed in the Palestinian Territories, so that the court should only have jurisdiction over crimes committed by Hamas in Gaza, not Israel’s crimes in the same territory. Although back in 2019, it argued with Israel that Palestine was not a sovereign enough state. https://www.reuters.com/article/us-icc-palestinians-israel/icc-to-investigate-alleged-war-crimes-in-palestinian-territories-idUSKBN1YO1S9/ https://www.reuters.com/article/us-icc-palestinians-israel/i... So in summary, from my reading, I found nowhere where anybody disputed the court’s jurisdiction in Gaza and East Jerusalem, while recognizing jurisdiction in the West Bank.
    - dlubarov 1y ago
      I wouldn't necessarily say that the State of Palestine is not a real state, but it just isn't a state whose territory includes Gaza under any reasonable interpretation, despite what some international lawyers say. It's unprecedented to say "we deem the actual (sort of) elected government illegitimate, and deem this other entity as the rightful government" when that other entity has never controlled, administered, or been popularly supported in the territory in question. I'm not sure what you mean about the ICC relying on Israeli claims about Hamas? If the ICC wanted to go after Hamas leaders, aside from the questionable jurisdictional argument, is seems like the easiest case. There's no question that Hamas leaders were involved in taking hostages, for example, which is just one of many war crimes the ICC could prosecute.

runarberg 1y ago

> The questionable part to me is that in reality, Hamas is the government of Gaza. As far as I remember Hamas welcomed the ICC indictments against the Israeli officials (but opposed the now dropped indictments against the Hamas leaders). But also how is this different from the Russian de facto governance over Donbas and other Russian occupied regions in Ukraine, where the alleged crimes occurred? Or am I mistaken in believing that the indictments over Putin are less controversial?

dlubarov 1y ago
With the ICC's indictment of Putin, my understanding is that at the time Ukraine hadn't formally ratified the Rome Statue yet (so the clause I quoted wouldn't apply), but they had accepted the ICC's jurisdiction in a more limited capacity which gave the ICC a slightly different way of asserting jurisdiction. As far as I know, Hamas is not a party to the Rome Statue and also has not accepted ICC jurisdiction the way Ukraine did; Hamas welcoming a particular case doesn't really help with the ICC's jurisdictional claim. (I'm also not sure the ICC would allow Hamas to become a party or accept jurisdiction, since they're operating in a sort of alternate reality where a different entity is the government of Gaza, but that's another matter.)
- runarberg 1y ago
  I’ve heard the story before that the Palestinian Authority in the West Bank applied to the ICC as a way to get back at Hamas, in the hope that the ICC would investigate Hamas. However reading the material here (primarily for the sibling thread) I’m starting to wonder if that narrative is true. It seems like from the get-go Israel—not Hamas—has been the primary target of investigation. The investigations I have looked at seem to primarily be focused on settler policy (including settler violence) in the West Bank, and Israel’s bombing campaign in Gaza. Meanwhile there isn’t much investigation into Hamas. Even the 2024 indictments against Hamas members seem to not be based on internal investigations by the court, but rather by accusations in what smells like both-side-ism from afar. In fact that seems to be a pattern. The court finds war crimes committed by Israel, and then tags on crimes which Israel claims Hamas is doing (stuff like using human shields, etc.). So what is interesting here, and perhaps runs counter to your guesses, is that I can‘t actually find Hamas disputing jurisdiction. Last November they disputed the impartiality of the court (i.e. what I call both-side-ism) but not jurisdiction. Israel has however disputed jurisdiction from the beginning, but not on the grounds you guessed above, rather their argument is based on the fact that Palestine is not a sovereign nation, so they cannot apply to become a member of the court. This was settled in 2021. Other member states had already recognized Palestine as a sovereign enough state to be a legitimate member in 2014, and a formal investigation into crimes committed in all Palestine territories began in 2015. This included Gaza (governed by Hamas) and East Jerusalem (governed by Israel). Meanwhile USA’s primary dispute seems to be that Israel prosecutes war crimes committed in the Palestinian Territories, so that the court should only have jurisdiction over crimes committed by Hamas in Gaza, not Israel’s crimes in the same territory. Although back in 2019, it argued with Israel that Palestine was not a sovereign enough state. https://www.reuters.com/article/us-icc-palestinians-israel/icc-to-investigate-alleged-war-crimes-in-palestinian-territories-idUSKBN1YO1S9/ https://www.reuters.com/article/us-icc-palestinians-israel/i... So in summary, from my reading, I found nowhere where anybody disputed the court’s jurisdiction in Gaza and East Jerusalem, while recognizing jurisdiction in the West Bank.
  - dlubarov 1y ago
    I wouldn't necessarily say that the State of Palestine is not a real state, but it just isn't a state whose territory includes Gaza under any reasonable interpretation, despite what some international lawyers say. It's unprecedented to say "we deem the actual (sort of) elected government illegitimate, and deem this other entity as the rightful government" when that other entity has never controlled, administered, or been popularly supported in the territory in question. I'm not sure what you mean about the ICC relying on Israeli claims about Hamas? If the ICC wanted to go after Hamas leaders, aside from the questionable jurisdictional argument, is seems like the easiest case. There's no question that Hamas leaders were involved in taking hostages, for example, which is just one of many war crimes the ICC could prosecute.