The ICC claims jurisdiction [1], which is enough for it to issue warrants and hold trials and issue judgements. The question is always if the warrants will be executed and the judgements enforced, as the ICC cannot enforce its rulings itself.
At the time of the declaration accepting jursdiction of the ICC by the State of Palestine[2], there was a unity government of Palestine, so it feels like maybe.
In April 2012, the ICC declined to assert jurisdiction over Palestine, as it was not recognized as a State by the UN [3], but in November 2012, Palestine was granted the status of a non-member observer State, which seems to satisfy the ICC.
At some point the claim of jurisdiction has to be adjudicated, as it states here:
"The Chamber provided a legal answer
based on the strict interpretation of the Rome Statute. It emphasised that the issue of the territorial jurisdiction of the Court would have
to be further examined when the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear. The
Chamber declined to address the arguments regarding the Oslo Accords in the context of the present proceedings and indicated that
these issues may be raised at a later stage of the proceedings."
Did the legal government of Palestine do the initial request in 2015? That would have been Hamas, since Hamas was the last elected government of Palestine. I would be surprised if Hamas acceded to the ICC's jurisdiction.
Can a non-state actor be accorded the same rights as a state under the Rome accords? Is the "government of Palestine" an actual entity?
If an entity other than the authorized government accepts jurisdiction of the ICC, does that count?
I mean, this isn't even getting the actual meat of the case and it's already a mess.
At the time of the letter, Hamas and Fatah were in a unity government [1], although that's maybe disputable too. If Wikipedia is accurate and complete, Hamas claimed at the end of November 2014, that the unity government had expired; but then in June 2015, Hamas rejected the dissolution of the unity government.
But yeah, you're right, my summary was overly brief --- the earlier ruling was more that there's a reasonable question of if they have jurisdiction, so investigations can proceed. As opposed to before where the court ruled that it didn't have jurisdiction, and couldn't proceed.
"Like the former emergency governments after June 2007, which were installed by presidential decree, this unity government was in fact illegal, as it was not approved by the Legislative Council.[2][3] Without the cooperation of all parties, however, it was not possible to get the necessary quorum to put a vote.[20]"
IMHO, it's pretty hard to tell what's legal and not, when all of the elected officials are way past their elected terms, and the bodies are not in session.
Article 43 seems to give pretty wide berth for the President to operate when the Legislative Council is not in session, and if the Legislative Council is never expected to be in session, there's no mechanism to reign that in.
> Article (43) The President of the National Authority shall have the right in exceptional cases, which can not be delayed, and while the Legislative Council is not in session, to issue decisions and decrees that have the power of law. However, the decisions issued shall be presented to the Legislative Council in the first session convened after their issuance, otherwise they will cease to have the power of law. If these decisions were presented as mentioned above, but were not approved, then they shall cease to have the power of law.
To be honest, not a lot of countries have laws that contemplate continuance of government in case elections are not held.
> My understanding is that the ICC is only supposed to do this for countries/areas without a functioning and functionally independent judicial system.
That seems to be a misunderstanding based on an improper generalization of Article 17 of the Rome Statute: the kind of inadmissibility you refer to applies not based on general capacity of the state but of action in the specific case:
---[Art 17]
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
I expect the request for the Israelis will not be approved.
Hamas will be interesting. Hamas' territory has no functioning judicial system, but does the ICC have jurisdiction?
In any case the "warrants" if issued would only apply to countries who signed the ICC treaty.