Is a rules-based international order truly possible? | ICC

The ICC’s arrest warrants against Israeli leaders threaten to upend the established system of Western impunity.

At the 1919 Paris Peace Conference, which sought to create a new world order out of the ruins of the First World War, Japan introduced the following clause on racial equality to be written into the League of Nations covenant: “The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to grant, as expeditiously as possible, to all foreign nationals of the Member States of the League equal and fair treatment in all respects, without making any distinction, whether in law or de facto, by reason of their race or nationality.”

The West was horrified. Australian Prime Minister Billy Hughes was mortified by the future of “White Australia” if the clause was accepted. British Foreign Secretary Lord Balfour stated that although he found the notion that all men were created equal interesting, he did not believe in it. “A man in Central Africa could hardly be said to be equal to a European.”

More than a century later, similar concerns are being expressed about the prospect of Western nations and their allies receiving the treatment routinely meted out to smaller countries. There has been uproar, especially in the United States and Israel, following the decision by International Criminal Court prosecutor Karim Khan to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Gallant, on charges of war crimes and crimes against humanity related to the Israeli genocidal attack on Gaza.

For many Kenyans, the protests are reminiscent of the reactions of the Kenyan and other African governments when our own President Uhuru Kenyatta and his then deputy and now successor as president, William Ruto, were brought before the ICC on similar charges a decade ago. . The two were accused of complicity in the violence that followed the disputed 2007 presidential election and, to date, remain the only serving officials to stand trial in The Hague.

It doesn’t help that Khan was the lead lawyer on Ruto’s defense team, but moreover, many of the arguments put forward by the US and Israel are a rehash of those of UhuRuto (as the two Kenyans were known). While Khan today is accused of anti-Semitism, his predecessor was accused of “racial hunting”. Protests against Khan’s ignoring complementarity and ignoring local judicial processes echo similar complaints from the Kenyan government, which asserted that Kenyan courts had the means to deal with crimes. Even the fact that the court is considered irrelevant echoes Kenyatta’s infamous description of it as “a painfully ridiculous pantomime… the plaything of declining imperial powers”.

All of this ended up being unmasked. The accusation that the ICC focused exclusively on African countries was undermined by the fact that the vast majority of these cases were referred by African countries themselves. The complementarity argument collapsed because no local case ever materialized regarding either crime – as is likely the case in Israel. And as the consternation clearly shows, the ICC is far from irrelevant.

But there is a significant difference. In the past, accusations of crimes against humanity have only been leveled against non-Western nations. In fact, as human rights lawyer and war crimes prosecutor Reed Brody told The Intercept, “the ICC has never indicted a Western official.” Khan himself reported being told that the ICC was “built for Africa and thugs like Putin”.

Also historically, the US and its allies have considered themselves above the reach of international law. In the war crimes tribunals that followed the end of World War II, only the crimes of the Axis Powers (Italy, Germany and Japan) were tried. It was also considered that it would not constitute a defense to argue that the Allies had done many of the same things that the Axis Powers were being accused of.

However, the arrest warrants sought against Israeli leaders threaten to upend this established system of Western impunity. “If they do this to Israel, we will be next,” declared US Senator Lindsey Graham. As the non-Western world increasingly seeks to strengthen international institutions and make them less of a tool of Western hegemony, these fears will only increase. South Africa’s case at the International Court of Justice, accusing Israel of violating the genocide convention, has already inspired a challenge by Nicaragua to Germany’s arms supply to the apartheid state.

The fact is that these disputes involve much more than Israel and its crimes against the Palestinians. The final question they raise concerns whether the much vaunted notion of a rules-based international order is actually possible. Will the West humble itself before the international system it was instrumental in creating or will it continue to insist on its exceptional status?

The views expressed in this article are the author’s own and do not necessarily reflect the editorial position of Al Jazeera.