One of the interesting aspects to me, is that ICC considers this both a non-international and international armed conflict (mildly different laws apply depending on which it is, but the difference is small as far as i understand)
How could something be both? Palestine is either a separate state from Israel or it isn't.
> How could something be both? Palestine is either a separate state from Israel or it isn't.
I don't think this is correct. Palestine's status is disputed. Legal status isn't a physical property, it's a social one, so if many people think "A" is "B", then "A" is in some sense genuinely "B".
Considering the conflict in both contexts avoids "Oops, the entire thing is nullified because it's technically Conflict Type 1, not Conflict Type 2."
I agree its disputed, but i don't think it follows from that that it is both. Like hypothetically (i say hypothetically since this is not the situation at hand afaik) if there was one crime that only applied to non international armed conflicts and one that applied to international, i don't think it would be just to charge with both just because its a bit unclear which is the correct one.
War crimes require a nexus to an armed conflict, and for some war crimes this conflict
must be international.5 For this reason, it is necessary to assess the situation in Gaza
and in Israel to determine whether an armed conflict exists and if so, its nature.
13. The Panel agrees with the Prosecutor’s conclusion that the conflicts in Israel and Gaza
comprise an international armed conflict and a non-international armed conflict running
in parallel. Hamas is a highly organized non-State armed group, and the hostilities
between Hamas and Israel have been sufficiently intense to reach the threshold of a
non-international armed conflict. The Panel’s assessment is that the non-international
armed conflict between Israel and Hamas began, at the latest, on 7 October 2023, when
Hamas and other Palestinian armed groups launched Operation al-Aqsa Flood against
Israel and Israel launched its Operation Iron Swords in response. The Panel has also
concluded that there is an international armed conflict between Israel and Palestine on
the basis either that:
a) Palestine is a State in accordance with criteria set out in international law, for which
there is a sufficiently strong argument for the purpose of an application to the Court
for an arrest warrant, and an international armed conflict arises if a State uses force
against a non-state actor on the territory of another State without the latter’s consent;
or
b) Palestine and Israel are both High Contracting Parties to the 1949 Geneva
Conventions, and that pursuant to the text of Common Article 2 of the Conventions,
an armed conflict between two High Contracting Parties is international in
character; or
c) There is a belligerent occupation by Israel of at least some Palestinian territory.
14. The Panel’s assessment is that the international armed conflict began at the latest on 7
October 2023, when Israel first started responding to the Hamas attack on its territory
by using force on the territory of Palestine without the latter’s consent.
Also, it is not that hard to imagine conflicts that are technically both, e.g. a conflict that starts out as non-international and becomes international at a certain point.
I don't see how this relates. The point was about Palestine as a state. If enough people recognize Palestine as a separate state, this becomes an international issue. I believe this was the A is B claim digging made. What would be the analogous claim for your point? That some folks believe Palestine is it's own state, and some folks don't, and that the views are not mutually exclusive?
Yes, that is my point. The same applies to Taiwan. Guatemala considers Taiwan a country, China does not. Some countries belong to both groups depending on the context.
Yeah, but we are judging a thing that happened in time. So the sets will have some noise/overlap who will specify the conflict as A or B during which time of the conflict.
The ICC likely judges about crimes that happened during multiple phases of the conflict, hence the conflict could have multiple types.
I’s guess it depends on who you’re talking to: some organizations or states see Palestine as a state, others do not, and others see it as a future state but not one at this time. Keeping a definition broad lessens the chance of outright dismissal of otherwise cogent claims of wrongdoing.
That’s all insofar as anyone or entity actually respects international law. It comes down to states agreeing that it’s in their best interests to cooperate on a matter. As long as the USA and Europe support Israel and don’t bring to bear any leverage to stop this insanity and form an independent state, the ICC can call Palestine whatever it wants to describe the situation.
I don't think it matters what other groups think, it matters what the ICC thinks, and they already ruled they think Palestine is a state, at least in a preliminary fashion (i'm sure if this gets to trial the question will be relitigated).
Additionally ICC only has juridsiction if Palestine is a state. So the entire thing goes away if Palestine is not a state (since only states can aceede to the rome convention).
I do not think Palestine being a state is the same question as if this conflict is international. I think it may be possible for both Palestine to be a state and this conflict be non international. However IANAL and that is pure speculation.
It is not a separate state. Israel controls the borders and the airspace of Palestine and Palestine is not allowed, at least by law, to raise its own army, navy, air force. Israel is thus sovereign over Palestine and the Palestinians are its subjects, which is why Israel is not a democracy, and why this conflict is a rebellion.
Considering the Oct 7 attack it seems pretty wise of Israel to have not allowed Hamas a more advanced military. It is the professed goal of their government to eliminate Israel.
> Palestine is either a separate state from Israel or it isn't
I don’t believe the ICC’s jurisdiction is limited to state-on-state conflicts. The more-curious question is how the ICC is claiming jurisdiction over non-signatory nations.
Except Isreal isn't a signatory nation, and all of the land in question is part of Israel. That's not a judgement either way, there have been some attempts to change that, but the ICC doesn't actually have any jurisdiction here.
Apparently "Palestine" (which is not a state/country) signed on and due to that the court ruled (in some other case) that it does have jurisdiction. Also the "Palestine" side of the warrants are against Hamas which also feels weird (Hamas is also not a signatory nation and many suggest that Hamas != Palestine). Given Palestine is a signatory does it mean they have to take action to extradite the Hamas leadership to face trial? What consequences do they face if they fail to do that?
Generally when states sign treaties it applies to the de jure state, not just what it de facto controls.
> Given Palestine is a signatory does it mean they have to take action to extradite the Hamas leadership to face trial? What consequences do they face if they fail to do that?
Almost certainly nothing. They are obligated to help, but realistically if the palestine authority had the ability to capture hamas leadership i imagine they would have done so a long time ago, as the two sides fought what was essentially a civil war a while back.
The only UN approved borders are the 1967 ones I think. Interesting to see that it would apply to a lot of the settler colonies in the West Bank as well.
>Also the "Palestine" side of the warrants are against Hamas which also feels weird (Hamas is also not a signatory nation and many suggest that Hamas != Palestine).
The ICC prosecutes individuals not states, so there's no contradiction here.
>Given Palestine is a signatory does it mean they have to take action to extradite the Hamas leadership to face trial?
Yes
>What consequences do they face if they fail to do that?
There's no penalties built into the statute. It tends to have diplomatic blowback. See [1] for a prior example.
I'm wondering the same, but also wonder if the situation off the coast of Yemen and Iran's recent response to Israel bombing their embassy made the conflict partially international?
The conflict cannot be not considered international simply because Palestine's recognition is blocked by the US on Israel's behalf.
Nor can it be not international due to the vagueness of Israel's borders. Israel has internationally legally recognized borders (the Green Line) and is acting outside them.
In fact Palestine’s recognition is not blocked by the US. What is blocked by the US is Palestine becoming a full member of the UN.
The two things are different. Switzerland did not join the UN until 2002. I’m sure that we can all agree that Switzerland was recognized as a state prior to 2002.
Becoming a full member of the UN is a sufficient but not necessary condition for recognition. The other way is simply to get as many other states as possible to recognize you.
Arguably Palestine’s recognition by the UN General Assembly is also sufficient.
How could something be both? Palestine is either a separate state from Israel or it isn't.