[dlubarov]

Yeah, the ICC considers itself to have jurisdiction over crimes committed by non-parties if they're within the territory of a party to the Rome Statute.

Here the argument goes that the State of Palestine is a party, and Gaza is somehow its territory, even though it has never controlled or governed Gaza.

[runarberg]

The State of Palestine has two government at the moment which govern separate territories, just like Libya, Yemen, or China. Neither government of Palestine disputes the ICCs jurisdiction over Gaza. And unlike China there have been numerous attempts to unify the two governments, most of them were stopped by Israel.

I think the ICCs argument of jurisdiction is entirely reasonable, and consistent with how the court has ruled previously.

EDIT: Since this is Hacker News and we like nerdy details, I’ve linked below the 2021 ruling that established it’s jurisdiction of Palestine. The ruling was 3-1 and explicitly included the West Bank including East Jerusalem, and Gaza.

https://www.icc-cpi.int/news/icc-pre-trial-chamber-i-issues-...

[dlubarov]

Hamas' feelings about the case aren't really relevant to jurisdiction, partly because the ICC doesn't recognize Gaza as a state, and partly since Hamas hasn't accepted the ICC's jurisdiction. The latter would require Hamas to accept ICC jurisdiction over crimes committed by themselves, not only by Israel, so I don't think that would happen regardless of the statehood matter.

Libya, Yemen, and China are a bit different since they used to be unified states. It's great that there's a vision for a unified State of Palestine, but I don't think it makes any sense for the international community to pretend that exists today. In reality the current State of Palestine is represented only by the PLO, which has never controlled Gaza, not is it supported by most Gazans.

China is an interesting comparison though. Hypothetically if the PRC wanted to join the ICC, would the ICC understand that as including Taiwan, regardless of what the ROC or the people of Taiwan wanted? If so, that seems like a bad situation made possible by China's leverage, and not something the international community should try to replicate with Palestine.

[runarberg]

I want to make one correction, the verdict was not 3-1 but 3-0 with one of the justices issuing a Partly Dissenting Opinion, meaning they agreed with the verdict but disagreed with the reasoning (more on that later).

So you obviously disagree with the 2021 ruling of the court, and subsequently 2024 ruling which denied Israel‘s appeal to that ruling, thus reaffirming jurisdiction. That is fine. That verdict has not gone without criticism. But it is ultimately irrelevant the court’s interpretation of the Rome Statute, and Palestinian statehood is that the ICC does have jurisdiction over Gaza. In particular the verdict did not claim that Hamas needed to accept the jurisdiction.

Now I’m not very good at reading legal documents, but from what I can gather, the court determined that it “is not constitutionally competent to determine matters of statehood that would bind the international community.” ([1] para. 108) and that it did not want to resolve border disputes (para. 113 and para. 115). Rather the court based its ruling on the right of self determination and the Palestinian right to their own state (para. 116). For this they used internationally recognized borders which were defined in other UN resolutions.

I guess you can point out the colonial nature of such a ruling, that this in effect allows some groups to determine the rights of separate groups as long as the former is internationally recognized, but not the latter. I‘m not gonna argue for how just this system is, but this is consistent with international law, as argued by justices of the ICC, on at least two separate rulings. For better or worse, this is how international law works.

As for the partially dissenting opinion[2] as I understand it—again, I‘m not good at reading these things—disagreed that the court couldn’t determine Palestinian statehood, and argued that the Oslo accords gave Palestine their statehood, and the court derived their jurisdiction from that. This ends up being the exact same territory.

1: https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2...

2: https://www.icc-cpi.int/sites/default/files/RelatedRecords/C...