The ICC's arrest warrants against Israeli leaders threaten to overturn the established system of Western impunity.
At the Paris Peace Conference of 1919, which sought to create a new world order from the ruins of World War I, Japan introduced the following clause on racial equality for inclusion in the League of Nations covenant: “Equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to grant, as soon as possible, to all foreign nationals of the Member States of the League equal and fair treatment in all respects, without making distinctions or fact or law, by reason of their race or nationality.”
The West was horrified. Australian Prime Minister Billy Hughes was mortified about the future of “White Australia” if the clause was accepted. The British Foreign Secretary, Lord Balfour, stated that, while he found the notion that all men were created equal interesting, he did not believe it. “You could hardly say that a man in Central Africa is 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 customarily applied to lesser countries. There has been uproar, especially in the United States and Israel, following the decision of the International Criminal Court prosecutor, Karim Khan, to request arrest warrants for the accused Israeli Prime Minister, Benjamin Netanyahu, and his Defense Minister, Yoav Gallant. 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 Kenyan and other African governments when our own president Uhuru Kenyatta and his then vice president 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 sitting officials to have been tried in The Hague.
It doesn't help that Khan was the lead lawyer on Ruto's defense team, but beyond that, many of the arguments offered by the United States and Israel are a rehash of those of UhuRuto (as the Kenyan couple were known). While today Khan is accused of anti-Semitism, his predecessor was accused of “race hunting.” Protests that Khan ignored complementarity and trampled local judicial processes echo similar complaints from the Kenyan government, which said Kenyan courts had the means to deal with crimes. Even smearing the court as irrelevant reproduces Kenyatta's infamous description of it as “a painfully ridiculous pantomime… the plaything of declining imperial powers.”
All of this was 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 local cases regarding either crime never materialized, as is likely the case in Israel. And as the dismay clearly shows, the ICC is far from irrelevant.
But there is a significant difference. In the past, charges of crimes against humanity were only 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.”
Historically, too, the United States 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 held that it would not be a defense to argue that the Allies had done many of the same things of which the Axis Powers were accused.
However, the arrest warrants sought against Israeli leaders threaten to overturn this established system of Western impunity. “If they do this to Israel, we will be next,” said US Senator Lindsey Graham. As the non-Western world increasingly seeks to strengthen international institutions and make them less tools of Western hegemony, those fears will only grow. South Africa's case before 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 struggles go far beyond Israel and its crimes against the Palestinians. The fundamental question they raise is whether the much-touted notion of a rules-based international order is really possible. Will the West humble itself before the international system to which it has contributed decisively or will it continue to insist on its exceptional status?
The views expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.
