Notes on ICC Investigations in Ukraine and Palestine

The Selective Application of Justice: Comparing ICC Investigations in Ukraine and Palestine

1. Abstract

  • Purpose of the Study: This study critically investigates the selective application of international justice by the International Criminal Court (ICC) concerning cases in Palestine and Ukraine.

  • Main Events:

    • Following the 2022 Russian invasion of Ukraine, the ICC promptly opened an investigation into potential war crimes.

    • In contrast, accountability for alleged violations in Palestine has remained at the ICC’s “preliminary examination phase” since Palestine’s referral in 2018.

  • Methodology: A comparative case study framework to evaluate how various political, legal, and normative issues influence ICC decision-making.

  • Key Issues Examined:

    • Political pressure,

    • Recognition of statehood,

    • Mobility issues,

    • Diplomatic pressures.

  • Conclusions: The study illustrates the tension between legal obligations and political realities impacting the ICC's authority and public trust, suggesting a need for reforms to ensure equitable application of international law.

2. Introduction

  • Significance of ICC:

    • The ICC serves as a key institution for holding individuals accountable for serious crimes, including war crimes, crimes against humanity, and genocide.

    • It symbolizes progress in international criminal law and the institutionalization of efforts to combat impunity for human rights violations (Eichensehr, 2022).

  • Inconsistency in Application:

    • While the ICC claims adherence to neutrality, legality, and universally recognized justice norms, its application is marked by inconsistencies marked by allegations of political bias (Becker, 2025).

    • The cases of Ukraine and Palestine serve as contrasting examples of ICC's applicability and responsiveness.

  • **Questions Raised:

    • Why does the ICC apply international justice differently in varied geopolitical contexts?

    • Which legal, political, and normative factors mediate the scale and speed of ICC investigations in both regions?

  • Literature Impact: Analyzes institutional legitimacy, selective justice, and the reform of international legal systems through the lens of empirical insights from ICC activities.

3. Literature Review

3.1. Selective Justice and International Law

  • Definition: Selective enforcement of justice can undermine the legitimacy of international law, particularly during high scrutiny situations.

  • **Consequences of Selective Justice:

    • Jeopardizes deterrence and state cooperation.

    • Hinders compliance with international norms (Nowak, 2024).

  • Factors Influencing Enforcement:

    • Political context,

    • Institutional capacities,

    • Resource limitations, etc. (Mujeriego, 2025).

    • Investigational procedures are often influenced by political preferences and procedural constraints.

3.2. ICC in Palestine

  • Timeline of Events:

    • 2015: Palestine joins the Rome Statute.

    • 2018: Palestine refers the situation to the ICC, but lacks international political support, leading to stalled investigations (Cryer et al., 2020).

  • Key Barriers to Progress:

    • Jurisdictional questions regarding statehood and territorial authority.

    • Opposition from powerful nations, particularly the US, has limited ICC’s progress (Steinberg, 2024).

3.3. ICC in Ukraine

  • Contextual Differences:

    • Following Russia's invasion in February 2022, Ukraine accepts ICC jurisdiction, leading to an investigation initiated by the ICC due to strong international support.

  • Factors Facilitating Acceleration of Proceedings:

    • Political backing from Western states and media attention contributing to prompt ICC actions (Sadat & Hueseman, 2024).

3.4. Gap in the Literature

  • Identified Gaps:

    • Need for comparative studies examining how ICC operates in differing geopolitical contexts, focusing less on singular case studies.

    • Lack of incorporation of extralegal factors within the existing research (Daniele, 2024).

4. Theoretical Framework

  • Critical International Law (CIL) Perspective:

    • CIL examines the interplay between global hierarchies and international law, challenging the notion of international law as detached from politics (Struett, 2012).

  • Perspectives within CIL:

    • Importance of state interests and alliances influences how the ICC enforces its mandates.

    • The contrast between Palestine and Ukraine highlights the impact of geopolitical considerations on enforcement decisions.

  • Legitimacy and Bias: Acknowledges that perceptions of legitimacy are grounded not only in legal principles but also in the fairness perceived by various stakeholders.

5. Research Design and Methodology

  • Research Design: A comparative qualitative analysis of ICC’s engagement with Palestine and Ukraine to highlight selective justice.

  • Data Sources:

    • ICC files, press releases, United Nations resolutions, academic literature, and media reports to triangulate evidence.

  • Methods Used:

    • Topic coding and process tracing for thematic identification and connection of causes to observable differences in ICC responses.

6. Comparative Analysis of ICC Investigations in Palestine and Ukraine

6.1. Legal Aspects

  • Ukraine: Not a State Party but accepted ICC jurisdiction; formal investigation opened following referrals from 39 states.

  • Palestine: Similar jurisdictional hurdles due to contested statehood and procedural delays.

6.2. Political and Geopolitical Influences

  • Ukraine’s Case: Quick investigations bolstered by strong international support post-invasion.

  • Palestinian Situation: Slower investigations due to lack of political backing, particularly from powerful nations, highlighting geopolitical divisions.

6.3. Institutional Capacity and Prioritization

  • Ukraine as a Priority Case: Fast mobilization of resources due to significant evidence and international attention.

  • Palestinian Case: Complicated by legal and political issues along with insufficient international cooperation.

6.4. Perceptions of Bias and Legitimacy

  • Legitimacy Concerns: Disparities in investigation speeds contribute to public perceptions of bias, potentially undermining ICC’s authority.

7. Future Implications for International Criminal Justice

  • Need for Institutional Improvements: Calls for capacity building, transparency in decision-making, and broad engagement with stakeholders.

    • Aim for operational efficiency, impartiality, and credibility within international criminal justice.

  • Rigorous Applicability of International Law: The study emphasizes the necessity of consistent legal standards irrespective of political contexts to maintain public trust and ICC legitimacy.

8. Conclusion

  • Summary of Findings: This study uncovers the intricate connections between politics, law, and legitimacy within international criminal justice, advocating for reforms to address perceived biases in ICC processes.

9. Role of Authors

  • Contributions of Each Author as detailed in the document, highlighting their specific roles in research and writing.

10. Acknowledgements

  • Recognition of contributions from university faculty and stakeholder support for the research project.

11. Declaration of AI Involvement

  • Acknowledgment of the use of AI tools for ensuring clarity and comprehensiveness in the study's text.

12. Conflicts of Interest

  • Assertion of no conflicts regarding financial or personal interests influencing this research.