US Hypocrisy and the ICC: Unequal Justice for Global Leaders

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Washington welcomed the indictment of Russian President Vladimir Putin, announced by the Joe Biden administration, as a step toward holding perpetrators of the Ukrainian conflict accountable. The ICC has now taken action against Israeli leaders, with ICC Chief Prosecutor Mr Karim A. A. Khan requesting an arrest warrant for Binyamin Netanyahu, the prime minister of Israel, and his defence minister, for atrocities committed by Israeli forces in Gaza. This article explores Uncle Sam’s history of hypocrisy and double standards, suggesting that the days of US hegemonic global power are now over.

What is The ICC?

The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and crimes of aggression. As a court of last resort, it seeks to complement, not replace, national Courts. It is governed by an international treaty called the Rome Statute. The Assembly of States Parties (the Assembly) is the Court’s management oversight and legislative body. It comprises representatives of the States who have ratified or acceded to the Rome Statute.

Established in 2002 under the multilateral Rome Statute, the ICC is considered by its proponents to be a significant step toward justice and an innovation in international law and human rights. However, it has faced criticisms from governments and civil society groups, including objections to its jurisdiction, accusations of bias, Eurocentrism and racism, questioning the fairness of its case selection and trial procedures, and doubts about its effectiveness.

Establishing an international tribunal to judge political leaders accused of international crimes was proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of global terrorism. 13 states signed the convention. Still, none ratified it, and the convention was never enforced.

After the Second World War, several countries, particularly in Western Europe, applied their national laws to apprehend Nazi senior officers to account for their crimes against humanity. Since the rules were different, outcomes were also other, raising concerns about double standards.

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As a result, to bring uniformity to the judicial treatment of crimes against humanity, there was growing pressure to have one international court that would deal with the gravest crimes against humanity that could not be brought to countries where they were being committed. Overall, the perpetrators of crimes against humanity must have an organization, and domestic laws were found incapacitated to arraign against those political leaders behind the atrocities.

In June 1989, the Prime Minister of Trinidad and Tobago, A. N. R. Robinson, revived the idea of a permanent international criminal court by proposing the creation of a tribunal to address the illegal drug trade. In response, the General Assembly tasked —the International Law Commission (ILC) with drafting a statute for a permanent court.

While work began on the draft, the UN Security Council established two ad hoc tribunals in the early 1990s: The International Criminal Tribunal for the former Yugoslavia, created in 1993 in response to large-scale atrocities committed by armed forces during the Yugoslav wars, and the International Criminal Tribunal for Rwanda, created in 1994 following the Rwandan genocide. The creation of these tribunals further highlighted to many the need for a permanent international criminal court.

In 1994, the International Law Commission (ILC) presented its final draft statute for the International Criminal Court to the General Assembly. It recommended convening a conference to negotiate a treaty serving as the Court’s statute.

Targeting African National Politicians?

The AU, over time, has been complaining that the ICC was unfairly targeting African leaders for indictments. The Court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using child soldiers. Lubanga was sentenced to 14 years in prison.

Of 42 ICC indictees, 38 were African leaders, constituting a staggering 92.86% of the total number of indictees, leaving a sour taste in the mouths of African leaders. True, Sudan, Libya, Kenya, Somalia, Uganda, Rwanda, DRC, and other African nations have suffered severe crimes against humanity, but critics point out that contrary to the ICC’s overzealousness against Africa, the World has witnessed more of the same or even more crimes against humanity in other countries. The ICC shielded such leaders.

Most of the critics point an accusing finger at the US, which has been behind crimes against humanity in Iraq, Somalia, and Afghanistan, to mention a few, but the ICC looked the other way!

For more than 25 years, the U.S. relationship with the International Criminal Court has veered between idealistic support and outright hostility, with an arm’s length distance being the norm.

Now, with ICC prosecutor Karim Khan announcing he will seek charges against Israeli Prime Minister Benjamin Netanyahu and his defence minister for their execution of the Gaza war a year after obtaining an arrest warrant for Russian President Vladimir Putin over Ukraine allegations, the ICC has asserted the independence its framers imagined—at the likely cost of practical support and diplomatic legitimacy that only superpower backing can bring.

The Wall Street Journal, a US magazine, lamented that the ICC is ineffective without being supported by a Superpower such as the US that will be able to ensure her indictments and court decisions are respected globally. According to the WSJ, the ICC has shot herself in the knee because the US will not sanction the indictment against Netanyahu and his cohorts!

American Double Standards Revisited

The ICC’s efforts to charge American soldiers who allegedly had committed atrocities against the people of Afghanistan were halted when then President Donald Trump sanctioned two top ICC prosecutors from entering the US and carrying out the necessary investigations.

The Treasury Department placed ICC prosecutor Fatou Bensouda and head of ICC jurisdiction Phakiso Mochochoko on its blocklist under an executive order issued in June 2020 that said the ICC’s efforts threatened U.S. officials without legitimate jurisdiction, infringed on U.S. sovereignty and put at risk critical national security and foreign policy.

As far as the US is concerned, charging the US military to account for their actions on foreign soil was an illegal interference against the sovereignty of the USA, which is absurd! If the same template of sovereignty is applied to all nations, then the ICC will cease to exist.

In a statement, the ICC condemned the U.S. measures, characterizing them as “coercive acts”, and pledged to support its employees and continue its work. The sanctions and visa restrictions, the court said, “are another attempt to interfere with the Court’s judicial and prosecutorial independence and crucial work to address grave crimes of concern to the international community as mandated under the ICC Rome Statute.”

The US gave the ICC cash that now looks like an official bribe when the latter indicted Mr Putin for his incursions in Ukraine. The US praised the ICC for going after Russia, but now it no longer supports the ICC anymore because its pet project in Gaza is under serious threat.

It is imperative to state that while the weak are dying in large numbers both in Ukraine and Gaza, the biggest beneficiaries are American conglomerates, particularly those in defence and energy industries.

African countries that have endured the ICC’s wrath may be bemused to see as far as the US is concerned, where American interests are under the firing line, international law is repealed, abinitio. This is hypocrisy of the highest order. Laws must be applied to everybody regardless of their contribution to the sustenance of the ICC.

Impartiality before the law is imperative to solidify the legitimacy of the ICC, but the opposite will weaken the international premises of the rule of law. If it is okay to charge a non-ICC member, Russia, who is on equal footing with Israel, then it makes the latter vulnerable for her acts in Gaza before the ICC. To state otherwise is to mock the ICC Rome convention.

As the US stutters against global morality, she exposes herself into a pariah state, the very accusations she loves to level against those whose foreign policies she despises.

The author is a Development Administration specialist in Tanzania with over 30 years of practical experience, and has been penning down a number of articles in local printing and digital newspapers for some time now.

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