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."
Rather, A is A for many people, and B is B for many people. Both groups aren't mutually exclusive
( GroupA ∩ GroupB ) != ∅
The ICC likely judges about crimes that happened during multiple phases of the conflict, hence the conflict could have multiple types.
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I also found in the legal report the following that partially explains the reasoning https://www.icc-cpi.int/sites/default/files/2024-05/240520-p... :
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.
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.
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's also invading and attacking citizens of Palestine State without consent of its representatives (PA), that's international conflict.
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.
- who are alleged to have committed crimes on the territory of the signatory nation, or
- who are nationals of the signatory nation
[1] https://www.icc-cpi.int/sites/default/files/2024-05/240520-p... page 3, paragraph 9
> 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 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.
Gaza isn't actually part of Israel, though, is it? Even Israel says it's not, if I understand correctly.
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.
This conflict is international.
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.