War on Gaza: How the western 'rules-based order' is a sham

It is not yet clear whether the International Criminal Court (ICC) will issue arrest warrants for top Israeli political and military leaders, as rumoured by the media in recent days. 

There has also been speculation that the US would seek to prevent this and Israel would consider retaliation, and that Prime Minister Benjamin Netanyahu was “frightened and unusually stressed” at the prospect. The ICC prosecutor’s office indirectly confirmed US activism and Israeli threats in a sober but unequivocal statement. 

Whether the warrants will ultimately be issued is irrelevant, as Netanyahu has already defined them as “an outrage of historic proportions”. Noting that bodies such as the ICC arose in the wake of the Holocaust (it was actually created decades later, in 2002), he said this would be the “first time that a democratic country fighting for its life according to the rules of war, is itself accused of war crimes”. 

Israel has even hinted that if the ICC proceeds with the warrants, it will retaliate against the Palestinian Authority in a way that could cause its collapse. With his typical insensitivity, Netanyahu allegedly asked the families of hostages to lobby the ICC on his behalf.

Leaving aside such predictable reactions, it is important to note Israel’s contention that democracies, and particularly Israel, should not be judged on how they exercise their right to self-defence. The ICC’s Rome Statute, signed by 124 countries, does not suggest that citizens of democratic nations should be exempt from its jurisdiction. 

Unsurprisingly, the US State Department rushed to assert that Washington does not recognise the ICC’s jurisdiction over Israel, while curiously adding that the White House “work[s] closely with the ICC on a number of key areas … Ukraine, Darfur, Sudan”. Neither Israel nor the US have ratified the Rome Statute, putting them outside the court’s jurisdiction. 

The American Service-Members’ Protection Act, known informally and chillingly as the Hague Invasion Act, is also designed to shield American military personnel and other officials against criminal prosecution. In addition, Washington has levelled sanctions against ICC officials for their investigations into alleged US war crimes in Afghanistan.

Political expediency

As dismaying as it might seem, while asserting that the court has no jurisdiction over Israel, the US has supported its investigation of Russia, which is also not a signatory, over the war in Ukraine. Such a position, like many others promoted by Washington, is easily encompassed in the so-called rules-based order (RBO).

The US National Security Strategy published in October 2022 defined the rules-based order as “the foundation for global peace and prosperity”. How naive the rest of the world has been for so many decades in believing that such a foundation was provided by the UN Charter.

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Washington and its main allies are increasingly and inexplicably quoting the rules-based order to make their cases, to the point that leading American scholar Stephen Walt noted that referencing the concept “seems to have become a job requirement for a top position in the U.S. foreign-policy apparatus”.

Are such references casual or deliberate? Professor John Dugard, an eminent scholar of international law, observed that western leaders have invoked the rules-based order to criticise non-western states, “particularly Russia and China, for their international misconduct, but such references have been inconsistentor used interchangeably with international law”. 

In an era of increasing great-power competition, the minimal requirement would be to have rules valid for all

The use of the RBO, at least by US officials, is so assiduous that it is difficult to believe that it might be casual. Furthermore, in leading international law textbooks, there is no mention of the RBO; instead, there are references to the UN Charter and other UN or international treaties and conventions. 

Thus, it is very tempting to believe that the RBO is referenced out of political expediency, or worse, that it is a semantic trick. While international law, codified in UN conventions and international treaties after World War Two, is extensively spelled out, the RBO is present only in western leaders’ discourse. It is so obsessively used that it cannot be ignored. 

While it is not formally spelled out, we might hope that proponents of the RBO view it as a liberal international order based on principles of democratic governance, economic openness, equality, human rights, multilateralism, the free movement of goods, and collective security.It would thus be aligned with key pillars of international law. Why, then, is it quoted so frequently?

Unorthodox application

Dugard outlines the real US purpose in using it: “The indeterminate and undefined nature of the ‘rules’ of the RBO and the failure to consider their relationship with international law has led to the questioning of the reason for the resort to the RBO on the part of the United States. 

“The manner in which the United States has justified apparent violations of international law by its own forces or those of it[s] close friends has inevitably resulted in a cynical, albeit plausible, explanation for the US preference for the RBO … ‘a chimera, meaning whatever the US and its followers want it to mean at any given time’.”

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For decades, the RBO and its unorthodox application has fuelled heated jurisprudential debate between the Global West on one side, and Russia and China on the other, as the Global South watches - its brain conditioned by the first, and its heart beating for the second.

The situation is so obnoxious that, according to Dugard, the International Court of Justice “would probably have no competence to hear a dispute based on a ‘rule’ of the RBO… as such ‘rules’ lack content and cannot be identified as belonging to any recognized source”. 

Among the main exhibits for criticism of the RBO are the 1999 Nato intervention in Kosovo, the 2003 invasion of Iraq, the 2011 intervention in Libya, the ongoing western meddling in Syria, and the impunity long guaranteed to Israeli actions in the Middle East. 

In all these cases, the US allegedly acted in accordance with the unclear RBO, rather than the well-known procedures of international law. As Dugard describes it, the RBO “is an alternative regime outside the discipline of international law which inevitably challenges and threatens international law … a competing order advocated by some Western states, particularly the United States, which seeks to impose the interpretation of international law that best advances the interests of the West”.

In an era of increasing great-power competition, the minimal requirement would be to have rules valid for all. The US and its allies seem to struggle with this elementary principle, and it is thus not surprising that they are losing the battle for hearts and minds, even within their own societies.

This has spurred clumsy attempts to suppress dissenting voices on campuses and elsewhere, using methods that sound like a blatant disavowal of the RBO that is so dear to them.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.