Asymmetric State Responses to Palestine and Ukraine: Selectivity in International Criminal Law Enforcement

Abstract

The International Criminal Court opened an investigation in Ukraine within days of Russia's 2022 invasion, while its Palestine file took six years to move from preliminary examination to investigation. Existing accounts tend to describe this gap as a managerial or procedural problem. This article asks what causes the asymmetry in state responses to the two situations and how it affects the credibility of the principle of universality in international criminal law. Using normative legal research with statutory, comparative, and conceptual approaches, it compares the legal procedures, resources, and official discourse surrounding both situations against the Rome Statute and the scholarship on selectivity and legitimacy. It finds that the Ukraine investigation accelerated through a referral by 43 States Parties and earmarked Western funding, whereas the Palestine investigation stalled under contested statehood, territorial jurisdiction, and great-power diplomatic pressure, reinforced by veto politics in the UN Security Council. It argues that these differences reflect a structural dependence of the Court on state cooperation and voluntary resources, which converts geopolitical alignment into prosecutorial priority. The article contributes a framework linking Cryer's account of selectivity with Franck's theory of legitimacy, and it proposes reforms to funding, case-selection transparency, and domestic universal jurisdiction.