Rights abusers can breathe more easily

Should political leaders who have promoted or tolerated mass killings be brought to justice? Many in the west would instinctively answer Yes. The idea that leaders can kill their way to power – and not face punishment – seems morally wrong and politically dangerous. In recent years, an apparatus of international justice has been set up to ensure that mass murder can no longer go unpunished – with the International Criminal Court at its apex.

Next month, Uhuru Kenyatta, the president of Kenya, is due to go on trial at the ICC in The Hague for his alleged role in masterminding post-electoral violence in 2007-08, which led to more than 1000 deaths. The trial of William Ruto, Kenya’s vice-president, on similar charges, has already begun. In theory, the cases against Kenya’s leaders mark an important step forwards in the new international doctrine that human rights violations will be punished – no matter how powerful the perpetrators. In reality, there is a real risk that the Kenyatta trial will be the high water mark for the ICC and the ideas that it represents.

Until recently, most liberal thinkers assumed that the ICC, and the doctrine stating that the international community has a “responsibility to protect” civilians, were the modest beginnings of a new international order. The idea was that it would become harder and harder to be a traditional cruel dictator. The only people who would defend the old Westphalian system of non-interference in the internal affairs of sovereign nations would be backward-looking baddies in Beijing and Moscow.

But liberal confidence is now on the wane, and Westphalianism is making a comeback. There are three reasons for this. The first is the war on terror. The second is a power shift away from the west. The final reason is the intrinsic inconsistency in the new anti-Westphalian ideology.

Mr Kenyatta’s international image was greatly improved by his dignified handling of the terrorist attack on the Westgate shopping centre in Nairobi. As well as suggesting to casual observers that the president could not be all bad, the Nairobi attacks underlined the idea that his nation is now a frontline state in the “war on terror”. Western leaders are clearly wondering whether it is sensible to put a seemingly effective leader of a fragile state on trial. There are now moves afoot at the UN to defer Mr Kenyatta’s trial – possibly indefinitely.

Any such move would be a bitter blow to the defenders of the new international legal order aimed at human rights violators. But even if the Kenyatta trial proceeds, the debate over how far the world can go in pursuing brutal leaders is going to keep coming back for reasons that go well beyond the war on terror. That is because, as global economic power shifts east, western governments are increasingly going to find themselves dealing with really important foreign leaders, whose human rights records do not bear up well under close inspection.

China is the most obvious example. But the question is also likely to arise over India, a country that is often lauded as the world’s largest democracy. Polls and pundits suggest that Narendra Modi, a leading opposition politician, is likely to become India’s next prime minister in 2014. But Mr Modi is widely regarded in the US and Europe as a Hindu nationalist, who played a dangerous and ambiguous role in riots that led to mass killings of Muslims in his native Gujarat in 2002, when he was chief minister. As a result, Mr Modi was spurned by European diplomats and had a visa to the US revoked. But as Mr Modi nears power, the European boycott is breaking down. If he does become prime minister, it seems highly unlikely that America will shun him – given the strategic importance that the US now attaches to its relationship with India.

A rehabilitation of Mr Modi would highlight the third big flaw in the emerging system of international justice: its inherent inconsistency. The problem is that it has already become apparent that “universal” justice is, in fact, highly selective. African nations complain that it only ever seems to be African leaders who are indicted before the ICC. Human rights lawyers contend that a variety of powerful figures, from George W Bush of the US to Vladimir Putin of Russia and the UK’s Tony Blair, could be accused of war crimes. Whatever the justice or otherwise of these complaints, they are never going to be tested in court because the leaders involved have the protection of very powerful nations.

As developing nations gain economic strength, moreover, the Chinese and Russian insistence on Westphalian principles seems to be gaining more adherents, not fewer. Many rising powers, such as India, have memories of colonialism, and therefore have an instinctive resentment and suspicion of western interference – even in countries such as Zimbabwe, where the human rights case seems crystal clear. The Commonwealth – headed by the Queen of England but dominated by non-western nations – seems determined to press ahead with a summit in Sri Lanka next month in spite of the grisly human rights record of the government in the civil war that ended in 2009. Mr Kenyatta may attend, provided he is not otherwise engaged in The Hague.

The idea of pursuing international leaders who have committed human rights violations through the courts, without fear or favour, is a pleasing – even uplifting – notion. But it is beginning to fail the reality test.

gideon.rachman@ft.com

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Letters in response to this column:

Selectively applied justice at the ICC / From Mr Tom Cargill

A shift away from the developing doctrine / From Mr Robin Cooke-Hurle