The Situation in the State of Palestine (Icc-01/18) Before The International Criminal Court: Jurisdictional Foundations, Procedural Flaws and the Limits of External Pressure

The article reviews the Situation in the State of Palestine (ICC-01/18) before the International Criminal Court, from the article 12(3) declaration and accession of January 2015 to the developments of 2025-2026. Drawing on V. Ageyev's historical and terminological studies, it distinguishes 'Palestine' as a toponym, the Palestinian people as the holder of the right to selfdetermination, and the 'State of Palestine' as the entity that seized the Court. It argues that the 2015 acts which triggered the Court's jurisdiction were performed by an entity whose statehood under general international law was unconfirmed at the critical date, and that the Court never examined that question on the merits. Separately, and irrespective of the statehood dispute, it shows that in January 2015 the applicant exercised no governmental authority in the Gaza Strip, to which the 2024 warrants relate. The procedural flaws identified include the use of article 19(3) at the situation stage; the deferral and later dismissal as premature of the Oslo Accords argument, which the Appeals Chamber found on 24 April 2025 to be an error of law; the narrowing of article 18; the public announcement of warrant applications; and the undecided request to disqualify the Prosecutor. The conduct of the Prosecutor and the judges is tested against the OTP policy papers, the Chambers Practice Manual and the codes of ethics. United States sanctions against the Court's judges and prosecutors are assessed as incompatible with judicial independence and as lacking a legitimate aim, since the Statute itself provides the proper avenue of challenge. The article also traces the fragmentation of support among European States Parties and shows how the designation of Hamas as a terrorist organization relates to the allegations brought before the Court. It concludes with proposals on the protection of victims and suspects and with scenarios for the proceedings, including their bearing on the Situation in Ukraine (ICC-01/22).

Citation: Keshkentii, Denys. The Situation in the State of Palestine (Icc-01/18) Before The International Criminal Court: Jurisdictional Foundations, Procedural Flaws and the Limits of External Pressure SSRN, DOI 10.2139/ssrn.7578380. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7578380