The ICC has jurisdiction over the situation in Palestine based on Palestine’s 2015 acceptance
and ratification of the Rome Statute, and its referral of the situation to the ICC, including
crimes committed since June 2014.
According to the ICC Pre-Trial Chamber I decision of 21 November 2024, Palestine accepted
the jurisdiction of the ICC on 1 January 2015 under Article 12(3) of the Rome Statute, which
allows a non-member state to accept the Court’s jurisdiction over crimes committed within
its territory. In parallel, Palestine ratified the Rome Statute, becoming a State Party.
The ICC Pre-Trial Chamber I determined in 2021 that it has territorial jurisdiction over the
territory of Palestine, being the Palestinian territory occupied by Israel since 1967
(the West Bank, including East Jerusalem, and the Gaza Strip).
Israel — not a State Party to the Rome Statute — has claimed that the ICC would not have
jurisdiction under Article 19(2) of the Rome Statute, arguing that Palestine does not have the
legal capacity to “delegate” jurisdiction to the ICC, while also asserting that the ICC cannot
exercise jurisdiction over Israeli nationals. However, the ICC rejected Israel’s challenge,
stating that the acceptance of jurisdiction by Israel is not required because the Court’s
jurisdiction is based on territory rather than nationality, and does not imply any “delegation”
from the territorial state, nor any consent from the State of nationality. This means that the
ICC can prosecute crimes committed on the territory of a State Party, even if the person
accused is a national of a non-member state. Jurisdiction in this case is based on where the
crime occurred, Palestine, and not the nationality of the alleged perpetrators.
Israel has also argued that its claim that Palestine is not a state should be enough to invalidate
ICC jurisdiction. However, the ICC also dismissed this argument, stating that it had already
ruled on this matter in 2021, and this decision stands as res judicata—meaning it has already
been adjudicated.
In conclusion, despite Israel’s non-membership of the Rome Statute and its refusal to
recognize the ICC’s jurisdiction, the ICC has based its jurisdiction on
Palestine’s accession to the Rome Statute and the principle of territorial jurisdiction,
affirming its legal authority to investigate and prosecute alleged crimes committed
in Gaza and the West Bank (including East Jerusalem).
https://www.ecchr.eu/fileadmin/Q_As/ECCHR_QA_arrest_warrant_ICC_Netanjahu_Gallant_042025.pdfI haven't thought about it deeply and IANAL, but the initial impression is that this principle would open up the US and its citizens to charges for acts committed on any signatory nation's territory.
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