56 No. 76 JUSTICE 22. “Hamas Slams ICC for Seeking Arrest of its Leaders Alongside Netanyahu, Gallant,” TIMES OF ISRAEL (May 20, 2024), available at https://www.timesofisrael.com/ hamas-slams-icc-for-seeking-arrest-of-its-leadersalongside-netanyahu-gallant/ Haniyeh and Deif as “violating UN conventions and resolutions.”22 Hamas’s statement provides powerful evidence that Hamas does not consider Gazan nationals to be subject to the ICC’s jurisdiction, meaning that Hamas did not consent to the inclusion of the separate Gaza entity in West Bank Palestine’s January 2015 accession to the Rome Statute. As between the PA’s intent that “Palestine” encompasses both the West Bank and the Gaza Strip, and Hamas’s intent that Gaza is a separate, independent entity, Hamas’s intent is consistent with the actual state of affairs and therefore should control the jurisdictional issue. Conclusion After being violently ousted from the Gaza Strip in June 2007, the PA lacked actual or apparent authority to bind the Gaza Strip with its January 2015 instrument of accession to the Rome Statute. As of January 2015, Gazan Palestine stood completely separate, apart and independent from West Bank Palestine, much like East Pakistan after seceding from India in 1971. Hamas did not deposit its own instrument of accession to the Rome Statute, nor would it have done so, because it would never have limited its defined territory to exclude Israel. Hamas’s rejection of both the Oslo Accords and the ICC’s jurisdiction over Gazan individuals further bolsters our view that the Gaza Strip could not have been included in the “State of Palestine’s” accession to the Rome Statute, which applied solely to the West Bank (and possibly East Jerusalem). Therefore, because Gazan Palestine never acceded to the Rome Statute, the ICC has no jurisdiction over Gazan individuals, such as Sinwar, Deif and Haniyeh. Likewise, the ICC lacks jurisdiction over non-Gazan individuals, such as Prime Minister Netanyahu and former Defense Minister Gallant, for alleged crimes committed on Gazan territory. Effectively, any claim brought by the PA with regard to Gazan Palestine is moot. Thus, the court acted ultra vires its jurisdictional authority when it issued the arrest warrants, and the warrants should be vacated. The ICC will be facing a defining moment when the Pre-Trial Chamber considers the substance of Israel’s jurisdictional challenge. Its decision will determine whether it is a tribunal that stays within the boundaries of its own canons and international law, or a political tool in the hands of interested parties.n Steven E. Zipperstein teaches at UCLA, Tel Aviv University and the Hertie School in Berlin. He is also Director of the UCLA Younes and Soraya Nazarian Center for Israel Studies and Distinguished Senior Scholar at the UCLA Center for Middle East Development. Sharon Mayer is a Partner at Bird, Marella, Rhow, Lincenberg, Drooks & Nessim LLP in Los Angeles.
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