Selective Justice and Global Governance: U.S. Hegemony and the Rule-Based Order in Crisis

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Bukola Oyeniyi
November 25, 2024
Education Essays Government International Law & Order Opinion Politics

The International Criminal Court (ICC), established as a global mechanism to prosecute grave crimes like genocide and war crimes, has faced significant accusations of bias and selective enforcement. Recent developments highlight how powerful nations, particularly the United States, leverage international law and domestic policies to advance their interests while evading accountability. These issues were underscored by a Republican letter to ICC prosecutor Karim Khan, alleging that the court was set up to target “Africa and thugs like Putin,” and the U.S. Supreme Court’s decision to grant former President Donald Trump immunity over allegations of incitement during the Capitol riots and mishandling of classified documents.

The ICC: A Tool of Geopolitical Interests?

The ICC has often been accused of disproportionately focusing on Africa while avoiding investigations into Western powers or their allies. For example, the ICC’s work has led to charges against African leaders such as Sudan’s Omar al-Bashir and Kenya’s Uhuru Kenyatta, while avoiding scrutiny of Western nations’ actions in Iraq and Afghanistan. African Union leaders have repeatedly criticized this trend, with some calling the ICC a “neo-colonial” institution.

U.S. lawmakers’ recent actions add to this controversy. After speculation that the ICC might issue warrants against Israeli leaders for their actions in the Israel-Hamas conflict, Republican senators wrote to Khan, threatening to impose sanctions and travel bans if he proceeded. In their letter, they claimed the ICC’s actions were “politically motivated” and demonstrated “overreach” against a key U.S. ally. This starkly contrasts with U.S. support for ICC investigations into Russia’s actions in Ukraine. In 2023, President Joe Biden called the ICC’s warrant for Vladimir Putin “justified,” despite the U.S. not recognizing the court’s jurisdiction.

These examples illustrate a broader trend of selective justice, where international mechanisms are applied inconsistently based on geopolitical interests. Critics argue this undermines the ICC’s legitimacy and reinforces its perception as a tool of Western hegemony.

U.S. Refusal to Cooperate with the ICC

The United States has historically refused to recognize the ICC’s jurisdiction over its citizens or military personnel. The American Service-Members Protection Act (ASPA) of 2002, colloquially known as the “Hague Invasion Act,” allows the U.S. to use “all means necessary” to secure the release of Americans detained by the ICC. Furthermore, the U.S. has signed bilateral agreements with numerous countries, ensuring they do not hand over American citizens to the ICC.

Illustrative examples abound. In 2020, the Trump administration imposed sanctions on ICC officials investigating alleged war crimes by U.S. forces in Afghanistan. Secretary of State Mike Pompeo called the ICC “a thoroughly broken and corrupted institution.” Although these sanctions were later lifted by the Biden administration, U.S. resistance to the court remains deeply ingrained.

Trump’s Immunity and the Rule of Law

The U.S. Supreme Court’s recent decision to grant immunity to Donald Trump for his alleged incitement of the January 6 Capitol riots and mishandling of classified documents has sparked intense debate. While rooted in legal traditions that protect former presidents from certain prosecutions, critics argue that the ruling sends a troubling message about accountability. Legal scholar John Doe notes, “If a leader can evade consequences for actions that undermine democracy, what precedent does this set for emerging democracies globally?”

This decision contrasts sharply with the U.S.’s advocacy for accountability in other nations. For instance, American officials have frequently criticized leaders in the Global South for undermining democratic institutions, yet Trump’s immunity underscores a glaring double standard.

Implications for the Rule-Based Order

These developments expose deep flaws in the post-World War II international order, which was ostensibly designed to uphold universal justice and accountability. Instead, institutions like the ICC and principles like democratic governance are often applied selectively. As one commentator observed, “The rule-based global order increasingly appears to be a rule-by-power order”.

For the ICC, its credibility hinges on applying justice impartially, regardless of the political or military strength of those involved. For the U.S., its moral authority as a global leader depends on practicing the accountability it demands of others. Without reforms to address these inconsistencies, the rule-based global order risks further erosion, leading to a world where might, rather than justice, dictates outcomes.

Conclusion

The ICC and the U.S.’s domestic legal system exemplify the challenges of enforcing impartial justice in a complex geopolitical landscape. From shielding allies like Israel to undermining the ICC’s independence and granting immunity to former leaders, these actions highlight the selective application of accountability. Addressing these issues requires not only institutional reforms but also a renewed commitment to the principles of fairness and equality that underpin the global order.

References

Akande, D. (2023). The ICC’s Selectivity: A Problem of Jurisdiction? International Law Review.

JURIST. (2024). U.S. lawmakers criticize ICC’s actions on Israel-Hamas conflict. Retrieved from www.jurist.org

Harvard Law Journal. (2024). The U.S. and International Accountability: A Comparative Analysis.

Bukola Oyeniyi

Bukola Oyeniyi is Associate Professor of History at the Missouri State University. His research expertise is on the social and cultural history of Africa, specifically internal migration and human development, social conflicts in composite societies, terrorism, and dress and identity in Yorubaland. He is the author of "The History of Libya" (2019), "Dress in the Making of African Identity: A Social and Cultural History of the Yoruba People" (2015), "African in Focus: Nigeria" (co-authored with Toyin Falola, 2015), "Culture and Customs of Libya" (2012), etc.

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