ICC Please Note: Gaza is a Separate Sovereign Entity

Message to the ICC: Gaza is a separate sovereign independent entity and you have no jurisdiction under the Rome Statute.

Under the Rome Statute, a precondition to the exercise of jurisdiction by the ICC is that the court may exercise its jurisdiction only if they are committed in the territory of a state party. On this basis, the jurisdiction of the ICC with regard to the Gaza conflict has been challenged on the basis that Palestine is not a state and therefore cannot join the Rome statute.

I leave this discussion to others but instead ask a different question which appears to have been overlooked: Assuming the Palestinian Authority is indeed a state called Palestine and that this Palestine fulfills the legal requirements of the Montevideo Convention (which it does not) and may be regarded as a State for purposes of the Rome Statute, what are the powers, authority and jurisdiction of Palestine and specifically would it include Gaza?

I submit that Palestine, in both the legal and political context, does not include Gaza. If so, Gaza is a separate sovereign entity, Gaza is not a State Party as defined by the Rome Statute and accordingly the ICC has no jurisdiction whatsoever to events relating to or in connection with Gaza.

Since Hamas took over the control and administration from the Palestinian Authority in Gaza in 2007, the authority of the Palestinian administration is solely and strictly limited to Areas A and B of the West Bank. The Palestinian Authority has no executive, legislative or judicial power over Gaza and the West Bank officials, from the President of the Palestinian National Authority, Mahmoud Abbas, to all the ministers of the Palestinian Authority, are not recognized as such by the Hamas government which rules Gaza nor do they visit Gaza. Laws and regulations promulgated in the West Bank have no legitimacy in Gaza and are not implemented. Gaza has its own, independent, law-making mechanism.

Since 2007, the governance of the Gaza Strip has been solely carried out by the Hamas administration, led by Ismail Haniyeh who exercises full and undisputed prime minister authority within Gaza.  The Hamas government carries out each and every function of government, including but not limited to, finance, budgetary, taxation, military, policing, education, energy, agriculture, water, health, housing, social welfare, construction, infrastructure and border control. Furthermore, Hamas carries out its own foreign policy with its own personnel.

The West Bank Palestinian Authority may claim that it is responsible for the governance and administration of Gaza but it has the same degree of influence and authority as the Argentine claims for the Falkland Islands and Spain has over Gibraltar.

In practical terms, the West Bank Palestinian administration has had no say in Hamas`s firing of rockets into Israel resulting in several military operations. Both with regard to the commencement of hostilities and the subsequent cease fires, the West Bank Palestinian administration was as excluded as all other countries not involved in the hostilities.

Specifically, the West Bank Palestinian administration played no role whatsoever in cease fire talks. The exclusion of the West Bank Palestinian administration from the making of war and the declaration of cease fires is the absolutely conclusive and irrefutable confirmation that Gaza and the West Bank Palestinian administration are two totally separate legal entities.

An entity which has the sole and ultimate sovereign authority to commence hostilities at a time and in a manner of its own choosing, to finance the hostilities, to solely provide training, weapon, munitions and supplies to its fighters, to solely provide fighters and determine strategy, to solely discuss the terms of any cease-fire and with the sole right to declare such hostilities at an end, cannot be legally or even sensibly asserted to be part of, or under the control or jurisdiction of, another sovereign entity.

If any further substantiation is required, it is pointed out that Hamas carries out the death sentence without reference to the West Bank Palestinian administration or the assent of the President of the Palestinian Authority as required by the Palestinian Authority`s constitution, that the West Bank Palestinian administration is not involved in the reconstruction of Gaza following the 2014 hostilities and that West Bank Palestinian administration plays no role in the allocation of budgets to continue Hamas`s military buildup and tunneling nor is it able to prevent same.An important indication of sovereignty is the ability to carry out an independent foreign policy. Hamas conducts its own foreign policy at the regional and international levels with its own personnel, totally independent of the West Bank Palestinian Authority, headed by Hamas’ foreign relations chief. Hamas`s leadership has met with high-ranking European diplomats. Hamas has succeeded over the past three decades since its founding in 1987 to establish a wide network of political and diplomatic relations with several Arab, Islamic and Western states. It has relations with the Russian Federation, Brazil in Latin America, Nigeria and South Africa on the African continent and China, Malaysia and Indonesia in Asia. On the European continent, Hamas has diplomatic ties with Switzerland and Norway. Hamas also claims it has good ties with other but unnamed European countries that prefer not to be open about this relationship to avoid any embarrassment with Washington.

Further, recently an ICC delegation visited Israel and the West Bank but was unable to obtain any information from the Gazan authorities about activities in which Hamas was involved. Hamas, acting as sovereign in Gaza, refused all contact with the ICC delegation. Notably, the West Bank Palestinian Authority was unable to arrange for the ICC delegation to enter Gaza or to obtain information directly from Hamas in Gaza.

Also, recently, the Palestinian Authority High Court ruled that scheduled local elections will be postponed by four months and will be held in the West Bank only, not the Gaza Strip

The court decision came after West Bank lawyers petitioned the High Court to suspend the elections. The lawyers argued elections cannot be legitimate as long as Hamas is in power in Gaza instead of the Palestinian Authority. The lawyers were admitting the obvious: The Palestinian Authority has no power, authority, jurisdiction or sovereignty in Gaza. The ICC cannot now claim that the Palestinian Authority has power in Gaza after the Palestinian Court expressly decided to the contrary.

The Montevideo Convention requires that the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. These four criteria for statehood have been recognized as an accurate statement of customary international law. Hamas complies totally with these internationally accepted criteria. Interestingly, “Palestine” fails since it does not comply with (b), namely defined territory.

In short, Hamas has established a sovereign independent state of its own in the Gaza Strip, an entity with no links whatsoever to the West Bank Palestinian administration nor under its control. This state complies with the four criteria required for statehood and has established its own independent diplomatic network. This sovereign independent entity in the Gaza strip has not signed the Rome Statute and is consequently not a State Party which has accepted the jurisdiction of the ICC.

Accordingly, and irrespective of whether the West Bank Palestinian administration is a State Party under the Rome Statute, the obvious conclusion is that the ICC has no jurisdiction over events relating to or occurring in the Gaza Strip under the independent jurisdiction and control of Hamas before, during or since the 2014 hostilities.

About the Author
Charles Abelsohn, a co-founder of Truth be Told, retired several years ago as the legal manager of one of the most well–known entities in Israel. He is a graduate of three universities (Cape Town, Stellenbosch and U. of South Africa) in South Africa in Law, Transportation Economics and Finance. His interests, even as a young student, were Judaism, Israel, Economics and Finance.
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