51 Winter 2026 ntroduction The International Criminal Court’s (ICC) issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant in November 2024 has provoked an important debate regarding the court’s jurisdiction to prosecute Israeli nationals for alleged conduct occurring in the Gaza Strip. Thus far, the debate has focused on two arguments: first, even if Palestine validly acceded to the Rome Statute and can be considered a state party to the ICC, the Palestinian Authority waived criminal jurisdiction over Israeli nationals in the Oslo Accords, and therefore the ICC likewise lacks jurisdiction over Netanyahu and Gallant. Second, even if the ICC theoretically has jurisdiction over Israeli nationals, under the Rome Statute it must respect the principle of complementarity and allow the Israeli justice system to investigate any alleged war crimes before the ICC asserts jurisdiction as to those nationals. In this article we add a third reason why the ICC lacks jurisdiction, specifically regarding the Gaza Strip. We argue that Gaza seceded from the West Bank and became a separate, independent state-like political entity when Hamas overthrew the Palestinian Authority (PA) in June 2007. From that point forward, “Gazan Palestine” functioned independently with its own governing institutions, its own military/terrorist army, and its own foreign policy. The PA had no role in Gazan Palestine, nor did Hamas have any role in “West Bank Palestine.” Thus, when the PA submitted its instrument of accession to the Rome Statute seven and a half years after Gaza had broken away from the West Bank, the PA had no legal authority to act on behalf of Gaza. Accordingly, the PA’s instrument of accession was valid only for West Bank Palestine, but not for Gazan Palestine. Indeed, Hamas itself has rejected ICC jurisdiction over Gazan Palestinians. Therefore, the ICC lacked jurisdiction to issue arrest warrants for Netanyahu and Gallant for alleged crimes committed on Gaza’s territory, because Gazan Palestine has never acceded to the Rome Statute. The Two Palestines: Gazan Palestine and West Bank Palestine Most commentators accept as a given that the Gaza Strip and the West Bank are both part of a single Arab Palestinian political entity colloquially referred to as “The State of Palestine.” The common view is that the West Bank and Gaza are indivisible, and that both areas jointly comprise a single Palestinian entity. But the facts tell a different story. The Ottoman Empire conquered most of the Arab Near East in the 16th century, and ruled it until the end of World War I. For at least the last century of Ottoman rule, the West Bank and Gaza were administered separately, with the West Bank eventually coming under the jurisdiction of the Vilayet of Beirut, and Gaza under the jurisdiction of the Independent Sanjak of Jerusalem. Following World War I, Great Britain administered Gaza and the West Bank, as well as modern day Israel, under the common name of “Palestine.” But when Britain terminated the Palestine Mandate on May 14-15, 1948, Gazan Palestine and West Bank Palestine once again ended up as separate entities, with Gazan Palestine under Egyptian occupation and West Bank Palestine under Jordanian annexation. Following the June 1967 war, Israel replaced Jordan as the occupant of West Bank Palestine and Egypt as the occupant of Gazan Palestine, until Israel withdrew from Gazan Palestine in September 2005, handing control over to the PA. But that control was short-lived, as only four months later Hamas won a majority of the seats in the January 2006 Palestinian Legislative Council elections. By the spring of 2007, following several failed reconciliation efforts, the PA banned Hamas from any governance role in Gaza. In June 2007, Hamas responded by launching a violent coup d’etat, overthrowing the PA and brutally murdering several PA officials. Therefore, during the past 508 years – from the Ottoman conquest in 1517 until 2025 – the West Bank and the Gaza Strip fell under common Palestinian governance for a grand total of only 21 months, between September 2005 and June 2007. The ICC’s Lack of Territorial Jurisdiction Over Gaza Steven E. Zipperstein and Sharon Mayer I
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