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Sunday, June 16, 2024
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Is a rules-based international order truly possible?

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At the 1919 Paris Peace Conference, which sought to craft a new world order out of the ruins of World War I, Japan introduced the following clause on racial equality to be written into the covenant of the League of Nations: “The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord, as soon as possible, to all alien nationals of States members of the League equal and just treatment in every respect, making no distinction, either in law or in fact, on account of their race or nationality.”

The West was aghast. Australian Prime Minister Billy Hughes was mortified about the future of “White Australia” if the clause was accepted. The British Foreign Secretary Lord Balfour declared that while he found the notion that all men were created equal an interesting one, he did not believe it. “You could scarcely say that a man in Central Africa was equal to a European.”

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

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To 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 hauled 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, they remain the only sitting officials to actually stand trial in The Hague.

It does not help that Khan was the lead lawyer for Ruto’s defence team but beyond that, many of the arguments offered by the US and Israel are a rehash of those of UhuRuto (as the Kenyan pair were known). While today Khan is accused of anti-Semitism, his predecessor was accused of “race hunting”. The protests over Khan ignoring complementarity and riding roughshod over local judicial processes echo similar complaints by the Kenyan government which asserted that Kenyan courts had the wherewithal to deal with the crimes. Even the tarnishing of the court as irrelevant reproduces Kenyatta’s infamous description of it as “a painfully farcical pantomime … the toy of declining imperial powers”.

All these were eventually debunked. The charge 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 as no local cases ever materialised with regard to any of the crimes – just as it is the probable case in Israel. And as the consternation clearly shows, the ICC is far from irrelevant.

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But there is a significant difference. In the past, crimes against humanity charges were only ever levelled against non-Western nations. In fact, as human rights attorney 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”.

Historically too, the US and its allies have considered themselves as 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 held that it would not constitute a defence to argue that the Allies had done many of the same things the Axis Powers were being accused of.

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