Selective enforcement of justice is a significant factor in the normative legitimacy of international law. When players in the process perceive that legal processes are applied asymmetrically, the legal authority of the Court will be undermined, and the underlying premise of equality before the law is called into question ([8]). This is especially heightened in moments of intense scrutiny of an ongoing armed conflict or situation, as the media spotlight, opposition from defenders, advocates, and a range of lobbying bodies can amplify substratum enforcement practically. Moreover, selective justice may also hinder the ICC from fulfilling its purpose or mandate because it jeopardizes deterrence and state cooperation as compliance with international norms become obscured ([17]). Scholars have also signaled that institutional and operational factors can contribute to enforcement ([16]). For instance, the question of which types of investigations to fast track and which to slow track is ultimately the culmination of political preferences, procedural limitations, the limitations of resources and prioritizing investigations. In practical terms, the investigatory stage of Palestine, which faces jurisdictional questions, weak political backing and expressed opposition is still pending in comparison to the investigatory progress of Ukraine, a situation backed politically, publicly engaged and better documented ([18]). So, as reflected in the literature, selective justice takes on a multifaceted complex nature when taken into account legally, institutionally and politically. To recognize systemic bias, assess the ICC’s legitimacy, and make recommendations for increasing justice and impartiality, a thorough understanding of this interplay is required ([5]). This article expands these findings through a comparison of Palestine and Ukraine as well as specifically presents empirical data in how selective enforcement presents itself in today’s international criminal law.

In the study of international criminal law, selective justice has come up frequently, raising major questions about the ICC’s impartiality and effectiveness. The Rome Statute requires that legal standards be applied universally to prosecute the most serious international crimes, but evidence suggests that enforcement often varies across contexts, reflecting broader political, strategic, and institutional dynamics ([5]). Studies denote great power allegiance, considerations of states, or political objectives shape and constrain what that ICC seeks to achieve, and, thus, yield divergent results for accused offenders. For example, evidence indicates that individuals affiliated to great powers evade scrutiny, and that ICC investigations appear to focus on more politically imperiled persons ([18]; [7]). The context of international relations and geopolitics establishes what cases international processes is fund or focus on, not just legal restrictions. Patterns in international criminal law challenge the notion that it is a distinct domain separate from the international power layering, given the demonstrated interrelation between politics and law.

The issue of the International Criminal Court’s involvement in Palestine is a tough and controversial area of international criminal law. In 2015, Palestine joined the Rome Statute, and the ICC began a preliminary examination to look into possible war crimes in Gaza, East Jerusalem, and the West Bank, allegedly undertaken by Israel ([8]). The preliminary examination was intended, as directed by Article 53 of the Rome Statute, to judge if there was a basis of jurisdiction for the Court, and whether there was a reasonable basis to investigate. Below the right to proceed, the substantive proceedings have not proceeded at all, as a combination of institutional, political, and legal hurdles. One of the fundamental barriers was whether or not to identify statehood and jurisdiction. Since there is no universal recognition of Palestine as a legitimate sovereign state, there has been some debate as to the ICC’s jurisdiction over that territory. While the Rome Statute does allow for a non-party State to accede, scholars point out that Palestine’s entry into the Rome Statute exemplifies the difficulty of the Statute’s dilemmas regarding territoriality and the notion of a “State Party”. These legal uncertainties have allowed for Israel, and other allied countries to object, and delay capable initiation of a full investigation. In addition, the geopolitical situation, especially concerning the dynamics within the United Nations Security Council (UNSC), is another issue that pressures the operation of the ICC. Historically, the veto power of permanent members has limited politically sensitive initiatives or implementation actions that would have advanced the cause of more powerful governments. As part of that, both the United States and Israel have vigorously opposed any ICC connection to the question of Palestine, citing dispute over the Court’s jurisdiction while condemning investigations that they suggested could affect international diplomacy, including peace talks ([20]). The United States’ and Israels’ political opposition to ICC action has included prolonged diplomatic pressure, threats against ICC funding, and to undermine legitimacy of the proceedings which all tap into the larger influence of world power relations, thus still shaping the landscape of international justice areas.

Institutional factors at the ICC contribute to delays as well. Since limited resources, competing priorities, and complicated legal processes, the Court must focus and categorize its cases carefully. Even if the prosecuted acts in Palestine are serious offenses, the Court is forced to tackle the case on a rushed timeline as a confluence of a politically charged situation, ambiguity in the law, and a failure to cooperate with the trial, such that there is too much political sensitivity ([5]; [7]). Scholars have pointed out that these constraining dynamics include not just institutional and procedural logics, but also political pressure and context, which affect trends in enforcement. Most importantly, the Palestinian case puts salient moral sensibilities of justice into tension with practical feasibility. Therefore, even if the evidence pertaining to the purported crimes is compelling, the Court must reconcile its imperatives to act and to exercise its jurisdiction with the realities of international law, diplomacy, and politics in a scenario that is absolutely divided and politicized. The number of hearings and meetings that have been postponed or delayed, have, to date, already led to accusations of bias and selectivity and undermines the Court’s jurisdiction as an institution, raising legitimate questions about either the Court’s capacity or its mandate or its ability to deliver justice, when cases are politically charged ([8]). In general, the literature on Palestine describes the multiple and complex ways in which ICC enforcement is influenced by political consequences, institutional capacity, ambiguities in the law and normative constraints. Thus, the Palestinian situation is an important case of the actual workings of selective justice, demonstrating for understanding the ways in which the Court deals with questions of credibility within politicized international contexts; additionally, how large contextual factors also shape the Court’s decision making process.

The ICC’s engagement with Ukraine exhibits a significantly different trajectory than Palestine, illustrating how public exposure and geopolitical support can expedite the application of international criminal law. Following Russia’s large-scale invasion of Ukraine in February of 2022, Ukraine formally declared its acceptance of the ICC’s jurisdiction under Article 12 (3) of the Rome Statute allowing the ICC to proceed with investigating allegations of war crimes and crimes against humanity within its borders ([20]). This formal acceptance put the Office of the Prosecutor (OTP) of the ICC in a clear position to act on behalf of Ukraine and begin the investigations in a manner that was not ready, and not likely to be, settled by legal barriers to prosecution, which have often beset the legitimate investigations regarding Palestine by Ramush Hoxha with the OTP. Many authors and scholars have recognized geopolitical support as factors significantly influencing the nature of the ICC’s trajectory. Western countries—such as the USA, NATO, and the EU—strongly supported Ukraine, allowing for cooperation in intelligence, logistics, and diplomacy. Political backing strengthened the Court’s legitimacy to intervene in a known case and provided critical resources to collect evidence and ensure the safety of witnesses ([7]). Ukraine’s situation demonstrates the Court’s supportive conditions for quick investigation based on Ukraine’s political interests aligning with powerful international actors’ political interests. Support from states, and alliances, are crucial to allow international criminal justice to be activated. The literature points to media attention and international visibility as relevant factors ([19]). As part of its reporting, international media entities reported civilian deaths, ruined infrastructure, and humanitarian disasters as a result of the Russian invasion. The ICC was further pressured to act quickly through added visibility suggesting that public scrutiny, and activism, is considerations in prioritizing cases. Scholars suggest that this may speed up an investigation by developing support globally, developing evidence through documenting, and building the mechanisms that create a moral imperative for accountability ([19]).

Furthermore, there were other institutional variables to consider. The court prioritized Ukraine’s case even in the face of competing exigencies and limited resources because the court can act when it is able to do so in cooperation with state actors, the evidence was evidently actionable, and knowledge was readily accessible ([20]). A combination of operational viability, international support, and unambiguous legal provisions allowed the Court to move quickly from preliminary assessment to a formal investigation unlike Palestine ([3]). Scholars argue that the Ukrainian case study raises broader questions regarding justice and the relationship of politics and law. In Ukraine, the ICC was authorized to conduct an investigation under its legal authority, and the ICC’s investigatory inquiry was substantially affected by extra-legal factors of media attention, international consensus, and international geopolitical relationships ([4]). The example of Palestine and Ukraine illustrates how political considerations and broader normative context, of the Court influence, and the legitimacy of the Court’s legal codes, shape how international criminal law is implemented ([7]). The study of Ukraine shows how the ICC was able to pursue this action more quickly due to a combination of political support for the actions it was pursuing, potential operational option, and extra-legal factors ([3]). This is an example of selective justice developing under conditions of significant international attention, and official backing, and in many ways serves as a stark contrast against the processes which emerge much more slowly, as in the case of Palestine. Researchers can contrast these two cases to analyze political, legal, and structural challenges for legitimacy of the ICC and implementation of decisions.

Although there is a considerable amount of research on the ICC and selective justice, there are still some significant gaps in the literature. First, the overwhelming majority of study focuses on single case studies, rather than systematically comparing politically disparate contexts, and very few studies adopt a comparative approach to examine how the ICC’s exercise of its powers could be different in relation to the political contexts in which it operates, even though both Palestine and Ukraine have received a sufficient amount of independent attention. It highlights the limitations of knowledge regarding the political, legal, and institutional drivers of selective justice in cases that differ politically but share the same legal foundations.

Second, the literature tends to focus on legal or procedural aspects of ICC investigations, with most studies focusing specifically on jurisdiction, evidence collection, or the regimes governing the formal prosecution of statutes. The role of extralegal forces, such as international political support, alliances with states, media coverage, and public opinion are often overlooked. We know very little about interactions between legal norms and geopolitical realities or how these interactions shape the ICC’s priorities when enforcing justice. The literature hardly traces the causal pathways from political support or opposition to the pace, scope, or priority of ICC actions. Lastly, comparative studies analyzing the interplay of institutional capacity, political will, normative principles, and legitimacy concerns in cross-case analyses are rare. In contexts for example Ukraine and Palestine, this gap is particularly stark, as legal entitlement to ICC intervention is present in both cases yet the results are huge different due to politics and operations.

This study searches to close the gaps by conducting a comparative qualitative analysis of the ICC’s engagement with Palestine and Ukraine. The study brings together legal, political, and normative factors to help remove some of the fundamental causes of selective justice. It is designed to produce both practical implications, and theoretical contributions to understanding how to enhance the ICC’s operational effectiveness, impartiality, as well as legitimacy.

Despite not being a party to the Rome Statute, Ukraine has accepted the ICC’s jurisdiction for alleged crimes on its territory. On March 2, 2022, the Prosecutor opened a formal investigation into the situation in Ukraine after 39 states parties referred the situation in Ukraine to the ICC in February 2022. This process was expedited due to Ukraine’s acceptance of the Court’s jurisdiction and widespread international consensus to hold Russia accountable for its actions in Ukraine.

The classical relationship between Palestine and the ICC is more complex. Palestine acceded to the Rome Statute in 2015, and in 2018 Palestine referred the situation in Palestine to the ICC ([9]). However, there were issues regarding the ICC’s jurisdiction since Israel are not a party to the Rome Statute, and there is contention about the territorial limits of Palestine’s jurisdiction. On March 2021, the ICC “ruled that it had jurisdiction over the situation in Palestine, including the West Bank, East Jerusalem, and Gaza” ([10]). The investigation is proceeding at a slower pace and has faced significant delays in issuing any arrest warrants or obtaining international support for investigations.

International support and political will are key determinants over the ICC’s ability to commence and move forward with investigations. In the case of Ukraine, there was immense pressure for the Court to act quickly given that 39 state parties provided the referral after Russia’s invasion in 2022 and large-scale condemnation of Russia occurred across the globe. Strong political support from Western nations allowed the OTP to announce formal investigations within days of referral, which supported intelligence gathering, diplomatic engagement and mobilized resources. Ukraine exemplified how political backing and support can expedite procedural action, increase evidence gathering, and support judicial action in high profile conflicts ([11]). However, the Palestinian situation illustrates the limitations from geopolitics and contested legitimacy. Despite its accession to the Rome Statute and referral, the United States of America, one of the strong states that have traditionally resisted the ICC’s presence in the region has resisted the case before the Court ([3]). Political lobbying, diplomatic pressure, and lack of cooperation by the United States has resulted in slow investigations and limited Court operations. Together, Palestine and Ukraine exemplify international criminal justice is not applied in a vacuum; rather, geopolitics, enforcement, and the interplay of political will, legal entitlement, and global consensus all impact the Court’s rulings ([13]).

The interests and influence of powerful states strongly affect the ICC’s ability to investigate and prosecute international crime ([14]). The substantial backing from Western powers, particularly the US against Ukraine’s invasion and NATO Members ([9]), provided Ukraine with the material resources, diplomatic heft and political responsibility to request and conduct its investigation ([14]). State support, can facilitate court cases, support sped-up institutional capacity and engage national and international capacities to boost performance, witness access and the gathering of evidence. In contrast, the Palestinian situation highlights the issues facing those without powerful investors. The opposition from several states, the USA, Israel and others, limit the ICC’s capacity to effective action based on limited cooperation, questioning jurisdiction and trying to engage in diplomatic means to delay the proceedings ([9]). These conditions provide evidence that the independence and capacity of the Court rely on international politics, even when legal capacity is very clear. The difference between Palestine and Ukraine highlights that “power structures do not spare international criminal justice, if anything, they shield it”.

The ICC is faced with considerable institutional limitations, limiting the Court’s ability to engage with more than one complex investigation at a time. The Court must devote limited human and financial resources and logistical capacity for gathering evidence, to the most serious cases based on threshold questions of the seriousness of offense, availability and degree of quality of evidence, likelihood of securing a conviction and the implications for its intervention ([19]). This prioritization is taken seriously, and, in effect, highlights the ICC’s purposeful assessment about where the Court can most reasonably and effectively exercise its mandate subject to all these limitations.

The case of Ukraine is a high prioritization. Following the Russian invasion of Ukraine in 2022, there were a number of sources creating evidence in lots of volumes, with significant reputational evidence of war crimes, and significant international reports and support to act quickly on the dependency of the war in Ukraine. The location and prominence of the war in Ukraine allowed investigation quickly.

Finally, the Palestinian context is marked by hard legal and political issues, including disputed jurisdiction and a lack of recognition of territorial authority, and limited engagement by powerful states. Even serious accusations of crimes against humanity have not translated into significant investigations because of these political and structural barriers to the Court’s focus on operational investigations ([2]). This contrast illustrates how institutional capacity is influenced by legal issues, evidentiary and jurisdictional issues, and the political landscape to determine prioritization decisions, which impacts perceptions of selectivity in international criminal justice.

The perceived disparity in the ICC’s treatment of Ukraine and Palestine raises significant concerns considering its legitimacy as an impartial international judicial institution. While the Court swiftly initiated an observation into Ukraine following state referrals and widespread international support, its proceedings in Palestine have been slower and fraught with jurisdictional and political challenges, despite similarly serious allegations of war crimes. This contrast has led critics to argue that ICC actions are influenced not solely by legal principles but also by geopolitical considerations, power asymmetries, and the interests of influential states. Perceptions of bias are tough because legitimacy in international law acts not only on formal adherence to statutes but also upon the way stakeholder’s states, civil society, and the global public-perceive fairness and impartiality. If enforcement appears selective, the ICC risks eroding public trust and credibility, which in turn reduces state compliance and cooperation from key actors. Moreover, biased perceptions can fuel skepticism about the Court’s ability to deliver justice equitably, weakening its normative authority and undermining its deterrent role. Understanding these perceptions is therefore essential for evaluating the ICC’s effectiveness and guiding reforms to strengthen transparency, impartiality, and global legitimacy in international criminal justice ([5]). The comparative investigations in Ukraine and Palestine are shown in Table 1 below.

Table 1. The key contrasts between the ICC investigations in Ukraine and Palestine.

(Source: authors).