Flipping the Line: Yes, there is a rules-based international order
The problem, as Adam Chapnick argues, is that the international order is both unfair and deeply political. But that doesn't make its rules any less real.
The Line welcomes angry rebuttals and responses to our work. The best will be featured in our ongoing series, Flipping the Line. Today, Adam Chapnick responds to our latest weekend dispatch.
By: Adam Chapnick
According to The Line’s most recent dispatch, we don’t live in a rules-based international order.
When Liberal MP Nathan Erskine-Smith suggested over Twitter that Canada’s need for a rules-based order meant that it had to respect the actions of ICC Prosecutor Karim Khan, who last week filed applications for warrants of arrest for three Hamas and two Israeli leaders, the Line’s editors scoffed.
Such scorn is not uncommon, but it reflects a misunderstanding of what the Great Powers intended to create in 1945.
The rules-based order, which is derived from the UN Charter, has never been fair, and has always been political.
The rules themselves, much like any others, are often broken and unevenly enforced, but that does not make them any less real.
The UN Charter was drafted in the early 1940s largely by the Americans and the British. The League of Nations — designed to prevent a second world war — had failed, and in light of the increased the capacity of states to inflict overwhelming violence and destruction, a new postwar organization was needed to prevent an even more deadly failure in the future. Such a conflict was less likely if the most powerful states who were not a part of the League when it collapsed, the United States and the Soviet Union in particular, formalized their relationship within a larger global structure.
The Soviets were comfortable with what was then called the United Nations Organization on one condition: that there be one set of rules for the Great Powers, and another for everyone else.
Although some of the smaller states initially objected, the Canadian delegation played a significant role in convincing the founding states to accept the Great Power veto — the ability of the permanent UN Security Council members to exempt themselves from international law. Without the veto, there would have been no UN, and a flawed organization was better than the alternative.
The composition of the five Great Powers (the U.S., U.K., the U.S.S.R., France, and China) was entirely political.
While the U.S., the U.K., and the U.S.S.R. were understandable choices, France was a defeated country and China was amid a civil war whose outcome was uncertain. On paper, Canada, among the world’s top-five both militarily and economically at the time, should have been a lock for Great Power status, but there was never any thought of that. The British wanted the French on the Council, the Americans wanted the Chinese, and the Soviets didn’t care so long as they had the veto.
Nor did the Soviets, or the other Great Powers, pay any attention to the utopian language of the rest of the UN Charter.
Judged by our continued avoidance of a Third World war, this rules-based order has persisted, and it is in Canada’s interest that it continues.
As The Line editors note, order, however relative, is good for a trading nation, and a world governed even loosely is better for a state with an undersized security apparatus than one not governed at all.
But that does not make Erskine-Smith right either.
While the rules-based order established in 1945 gave the Great Power special privileges, it did not extend those same rights to international civil servants. It was their job to nurture and manage the system while maintaining the confidence of their Great Power masters.
Karim Khan’s application for arrest warrants fails that test.
First, Khan had to have understood that charging Hamas and Israeli leaders at the same time would lead to accusations of a moral equivalency between a terrorist group and a liberal democracy that the United States and the United Kingdom would never countenance. In the context of the rules-based order, the perception of his bias here is as bad as a bias itself.
Second, Khan’s filing undermines the principle of complementarity which is critical to the ICC’s credibility. The Rome Statue only permits the ICC to prosecute individuals if their own government refuses to do so. Khan’s pre-emptive conclusion that Israelis will not conduct a thorough investigation of the prosecution of their war with Hamas and, if necessary, hold its perpetrators to account in Israeli courts suggests that he is operating in bad faith. Khan claims to be willing to end his prosecution if he finds evidence of such an Israeli effort, but for critics of the ICC to be convinced that the organization respects state sovereignty, the onus must be reversed.
Finally, by announcing his filing publicly — a panel of judges must still grant the ICC prosecutor permission to pursue arrests — Khan has made it all but impossible for that panel to do so free of external pressure.
In sum, Khan’s conduct has compromised the ICC’s credibility in the eyes of two Great Powers, weakening the organization and its long-term prospects.
Since Canada benefits from a strong ICC, it should object to Khan’s conduct. Ottawa should call for his investigation be handed off to someone less partial before making any judgments about its findings.
Adam Chapnick is the author of The Middle Power Project: Canada and the Founding of the United Nations and the forthcoming Canada First, Not Canada Alone: A History of Canadian Foreign Policy. He teaches defence studies at the Canadian Forces College.
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These types of debates and discussions are why I like and subscribe. And pay a little bit extra.
I am inclined to agree - at least tentatively - with the writer’s assertion that the intervention of the ICC was ill-advised and premature.
Ill-advised because this intervention may interfere with diplomatic efforts by “real” great powers (which Israel is not), to broker a cessation of the fighting and to substitute a search for nonmilitary solutions.
And premature, because “liberal” forces within broadly democratic Israel, were successful in defeating its current government's efforts to neutralize the Israeli courts; so that it is premature to suppose that there was no forum in which alleged Israeli misconduct could be considered and judged against legal standards.
Although, of course, the experience of bringing such miscreants to justice in countries like the United States or Russia is hardly encouraging - let alone the possibility of redress for the flagrant violations of human rights in places like Myanmar.
Because the reality remains that politically and economically powerful states, and their citizens, remain largely immune from international prosecution or sanctions; and the actual enforcement of international norms – for example, against Serbia in the 1990s - rests with entities with military capacity and an appetite to use it.
In its own national interest.
There is, in other words, no such thing as equality before the law, or the equal application of the law, to all those who are ostensibly governed by it; and to this extent, the notion of a “rule based order” is a facade.
The reality remains that the strong do what they can and the weak suffer what they must.
It is a world of “interests”, not “rights”.