L'ermetica decisione della Corte penale internazionale sulla giurisdizione territoriale rispetto allo "Stato di Palestina"

This article comments upon the Pre-Trial Chamber’s decision of 5 February 2021 on the jurisdiction of the International Criminal Court with regard to the State of Palestine. The author argues that the Court should have clarified that Palestine is a quasi-State whose formative process is underpinned by the Palestinian people’s right to self-determination. A teleological interpretation of the Statute would then have shown that in these cases it is possible to resort to a functional concept of statehood that also admits as parties quasi-States in the process of self-determination. By explicitly arguing in relation to the legal status of Palestine, it would have been possible to explain in a congruent manner the identification of the relevant territorial unit. It is not sufficient to underline, as the Court does, that there is a broad international consensus that the West Bank, East Jerusalem and the Gaza Strip belong to Palestine in order to conclude that these territories are Palestinian. The author argues that such consensus was consolidated through a customary rule implementing the principle of self-determination. Despite the fact that the process towards the final establishment of the Palestinian State shows no sign of vitality, the international rule defining the borders of the Palestinian territory is a valid parameter for the determi- nation of the Court’s territorial jurisdiction.