Defending the Rules-Based Order: The US at a Crossroads

‘Ukraine is fighting an existential war for all democracies’. Such were the words of Canadian Foreign Affairs Minister Mélanie Joly in May 2022 as she visited Ukraine to show her government’s unwavering support for the country’s self-defence against unprovoked aggression. But her words also implied that, should Ukraine fall, it could become the first of many democracies that will have to fight for their own right to exist.

The institutional framework that has enabled communities to coexist in relative peace for the past seven decades is the so-called ‘rules-based international order’, a concept that has been used as a battle cry for over a year by both Ukrainians and Western allies alike.

The protection of the rules-based order (including its provisions on self-defence) is, thus, Ukraine’s and the West’s casus belli – their reason or motivation to fight. But is it a casual casus belli? If used only as a slogan devoid of any true commitment to the standards and principles making up such an order, it certainly sounds casual. Policymakers and the public must understand that they cannot have it both ways – invoking the rules-based order while remaining cynical about it. Rather, earnest commitment needs to be shown to the institutions that keep the system well-oiled and running, such as the UN and the International Criminal Court (ICC).

The ICC recently issued arrest warrants against Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova, for the war crimes of unlawful deportation and unlawful transfer of children from occupied areas of Ukraine to Russia. The arrest warrant against Putin may remain purely theoretical for now, yet its ‘symbolic, diplomatic and deterrent effects’ are certainly something to watch for in the near future. For one, as a matter of law, Putin’s status before the ICC has effectively changed to that of a suspect ‘at large’, whom states parties to the Rome Statute are under a legal obligation to arrest and surrender to the Court.

The US, however, is not among such parties, despite its vocal support for the rules-based international order. This places the US – awkwardly enough – closer to Russia in the eyes of the ICC, as both states at some point decided to ‘unsign’ the Rome Statute.

Could – and should – the US capitalise on the ICC’s newest move against Putin nonetheless? The fact that the US and its allies selectively choose when to uphold the rules-based system, and when to breach it as fits their own agendas, is of no surprise and has been readily – and rightly – decried by analysts, calling for greater Western consistency.

A fundamental requirement for such consistency to develop is to have a clearer understanding of the notion of the ‘rules-based international order’, as it currently has a plethora of meanings. One way to reduce this uncertainty is to equate it with ‘international law’, thus bolstering the institutions and standards that make up this normative regime.

Is it, then, time for the US to ratify the Rome Statute? Given the fraught history between the US and the ICC, this might sound like a strange proposition. But desperate times call for desperate measures, and the conjuring up of rules is useless without any real consequences or accountability. Non-recognition of challenges to the system is a start, but it can only take us so far. Significant individual accountability for breaches of the rules-based order is also needed, and the ICC represents the most viable, permanent forum to make that happen, aside from more novel proposals for an ad-hoc tribunal to deal with Russia’s war of aggression.

By joining the ICC, the US has a unique chance to live up to its own legacy of crucial support for the development of international criminal justice – from the setting up of its brainchild, the Nuremberg International Military Tribunal, to its active involvement in the negotiations resulting in the final text of the Rome Statute.

But the US need not take a leap of faith by ratifying the Rome Statute. There are safeguards therein that should be considered by the US if it decides to return to the fold of the international community that it is supposed to be leading, including the principle of complementarity that has recently benefited its allies, Colombia and the UK; the possibility for the UN Security Council to suspend the work of the ICC (Article 16); and an ‘opt-out’ clause for states that might not deem it strategic to recognise the Court’s jurisdiction over the crime of aggression (Article 15bis(4)).

With such safeguards, and with Putin at large, the US is at a crossroads: it must decide if it is ready to fully commit to the rules-based order it so vocally promotes, or if it is merely a casual casus belli.

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.

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