The Borders of the Occupied Palestinian Territory are Determined by Customary Law: A Comment on the Prosecutor’s Position on the Territorial Jurisdiction of the ICC in the Situation Concerning Palestine

In her request pursuant to Article 19(3) of the ICC Statute for a ruling on the territorial jurisdiction of the International Criminal Court (ICC) in Palestine, the Prosecutor of the ICC took the view that the Occupied Palestinian Territory corresponds to the West Bank, including East Jerusalem, and Gaza. The article discusses this finding from a twofold perspective. First, it investigates the actual existence of an international consensus on the borders of the Palestinian territory. Subsequently, it addresses the qualification of such consensus in the system of the sources of international law. Putting the elements analysed by the Prosecutor more clearly into relation with the statements expressed by states individually and within regional groupings, the author finds that her position is accurate. The article then shows that the existing consensus on the borders can be qualified as evidence of a procedural customary rule implementing the right to self-determination of the Palestinian people. In this regard, the ICC may thus exercise its jurisdiction.