The Demons of Chicane

Righting wrongs. It’s often quite subjective. In the United States it’s the province of fantasy superheroes or government torturers. Elsewhere it took the form of a window decal I was too bashful to photograph, a life-sized bin Laden standing tall with that hebephrenic grin and three airliners zooming toward us over his head, fluffy contrails in perspective.

There’s another way to look at it, too. It doesn’t get much press, for it lacks drama. Going against the grain of our extremist tit for tat, the international community wants to right wrongs with a code of conduct shared by all civilized nations. Naturally, it sounds outlandish to Americans but believe it or not, it’s an old idea.

In laying down the natural law of war and peace, Grotius wrote of maleficium – a fault in conflict with what men ought to do. Maleficium creates an obligation to make good the damage done. In stressing the duty to make amends, Grotius was following Aquinas, and who knows how far back the notion goes.

What made the old saw radical was the thought of nailing down the obligations: set out rational law as a means to perpetual peace. In Georgian England Jeremy Bentham bruited the idea of “minimizing the occasion of resentment for supposed injury: to wit, by definition of right and obligation established antecedently to the time when, by means of individual occurrences, the idea of rights accruing thence of rights violated stirs up angry passions.” Take whatever conscience sovereigns have, and write it all down. Defined obligations were radical enough to daunt the Jacobins, lest they irritate the despots. Yet they could never be entirely squelched.

Nineteenth Century American peace societies chewed on the idea. Jurists of several countries noodled with it for another hundred years. Gradually, bits and pieces of it made it into law. Under article 3 of the IVth Hague Convention of 1907 a state that breaks the laws and customs of war “shall, if the case demands, be liable to pay compensation.” As the US put it to Italy, no state may “escape the responsibility arising out of the exercise of an illicit action.”

As a patriotic American, you can see where this is going. Force might be applied to compel performance of a duty. Force might, in extreme cases discouraged in practice, be applied to exact recompense for injury. But what about retaliation? Revenge? To crush your enemies, to see them driven before you, and to hear da lamentations of deir vimmen? What about that? It takes all the fun out of statesmanship for our aspiring Conans.

But the General Assembly ran with it. The UN member states put the International Law Commission to work on the idea in 1953. The Commission began to draft articles on state responsibility. In November of 1963, the General Assembly directed “due consideration to the purposes and principles enshrined in the Charter of the United Nations.”

This opened up a whole new can of worms. Under the UN Charter, peace is the law. Self-determination is the law. One article, 19, even defined state crimes:

(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;

(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;

(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.

That makes the US government a criminal syndicate, a mafia with flags. Sticks and stones, and so forth.  Of course, who cares when you’ve got three or four gigatons, but this sort of niggling legal regime threatened to nickel and dime the American way with contingent liabilities for restitution, compensation, or satisfaction, whatever that is, in all sorts of unreliable venues not under the control of the US. Come to think of it, hadn’t Grotius said something about a wronged state’s right to punish, way back when? Who is to punish the nuclear power that rules us for crimes, and how?

Best to keep things dull and pacific. Do it Bentham’s way. The Commission dropped Article 19. Instead of punishing outlaw states for crimes, let us agree that states assume responsibility for serious breaches of their obligations. Stepping back from the gritty detail to general principles on which everyone can agree, the draft articles set out consequences for a state that violates any international legal obligation. A new relationship with new responsibilities binds wrongdoers and the states they have wronged. By breaching essential obligations of peace or human rights, states may take on responsibility to the international community as a whole. The articles apportion responsibility for wrongful acts with precise criteria that can sift through anarchic chaos and cut through all the varied put-up jobs used by covert and clandestine agencies. The articles enumerate legitimate excuses: consent, self-defense, countermeasures, force majeure, distress, or necessity, while affirming the peremptory norms. For some acts are still inexcusable: aggression, genocide, slavery, racial discrimination, torture, and denial of the right to self-determination.

The US government got a taste of state responsibility in Nicaragua versus United States of America. The US had been crushing its mild-mannered enemy Nicaragua with insurgent guerillas and blockades. Then the red team did something that the blue team never thought of in their war games or detailed plans. Nicaragua sued. Instead of fighting back they went running to the International Court of Justice (ICJ). This proved more fiendishly subversive than anything they’d ever done before.

US government dogma holds that war is politics, subject solely to the Security Council and not within the purview of the courts. To maintain that position, the US government relied on its old trick of slipping loopholes into law with treaty reservations. Using a reservation to the ICJ Statute, the US tried to cut the International Court of Justice out of multilateral treaties unless all parties to the treaty joined the suit. The US government figured it could always make some puppet ruler stand aside. In this way the US hoped to evade the war prohibitions of the United Nations Charter and the Organization of American States. But under state responsibility doctrine, the court bypassed the treaties and applied customary international law: the accepted code of conduct of the civilized world.

Our government knows that under the UN Charter, peace is the law. UN Charter Article 33 gives peaceful solutions the highest priority and the full authority of the Security Council. But the US tried its best to keep the ICJ out of it by exempting itself from any case that the Security Council might call for. Again, the Court bypassed the treaty with a corresponding principle of customary international law. The US had approved the harmless-looking UN resolution 2625 (XXV), the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.” At the time it seemed like motherhood and apple pie, nothing that would cramp the style of America’s illicit war machine – but now here it is in black and white, with teeth. The World Court not only takes it seriously but proposes to assess monetary damages for illegal US war.

The court also applied the world’s definition of aggression, UN resolution 3314 (XXIX), but only to reject US claims of self defense. Whatever Nicaragua was doing to offend the United States, the Court ruled, it wasn’t armed attack: no armed attack, no valid self-defense. So much for the macho catchphrase of our dilettante statesmen, all options are on the table. The Court chopped up other crucial elements of the US cold-warrior’s creed: “States do not have a right of ‘collective’ armed response to acts which do not constitute an armed attack.” No more ganging up as the free world. The UN calls the shots.

In a frontal attack on the American way, the Court ruled it “cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.” No more fighting communists? No more toppling reformist regimes? That would put the US out of business.

Nicaragua did not invoke the absolutes of humanitarian law, but the Court did. The Court distinguished between the Geneva Conventions, cherished by logic-chopping CIA hack lawyers, and the obvious and inescapable principles of humanitarian law. The spirit of the laws brought the facts out starkly. The US document “Psychological Operations in Guerrilla Warfare” was a Bluejacket’s Manual for war criminals. Concealed US mines were a throwback to the misdeeds ruled on in the ICJ’s first case. The Court’s President summarized its unanimous ruling in words meant for posterity:

The contribution of the Court has been to emphasize the principle of non-use of force as one belonging to the realm of jus cogens and hence as the very cornerstone of the human effort to promote peace in a world torn by strife. Force begets force and aggravates conflicts, embitters relations and endangers peaceful resolution of the dispute.

There is also the key doctrine of non-intervention in the affairs of States which is equally vital for the peace and progress of humanity being essentially needed to promote the healthy existence of the community. The principle of non-intervention is to be treated as a sanctified absolute rule of law.

States must observe both these principles namely that of non-use of force and that of non-intervention in the best interests of peace and order in the community. The Court has rightly held them both as principles of customary international law although sanctified by treaty law, but applicable in this case in the former customary manifestation having been reinvigorated by being further strengthened by the express consent of States particularly the Parties in dispute here. This must indeed have all the weight that law could ever commend in any case.

Everywhere on earth but in the USA, the case was acknowledged as a milestone, an advance comparable to the Nuremberg Tribunal or the Marshall Plan. After the second world war the United Nations had favored the victors with the unequal justice of P-5 status and the veto. Yet a generation later, when the power disparities had only increased, one of their number was held to account. The case informed numerous aspects of state responsibility and spurred work on the draft articles.

To the US government, the ICJ judgment was an insult, nothing more. The US refused to pay. The home front seemed secure. Unruly mobs had impeded US war in Indochina but they seemed under control again. Tight top-down control of party platforms neutralized public choice and war propaganda induced the masses to cheer the home team. The state had barred the doors to keep the public out of the sanctums of statecraft. Then they burst in through a window. In night-of-the-living-dead panic, the D.C. Circuit Court fought them off in 856 F.2d 929 (D.C. Cir. 1988).

US citizens in Nicaragua had dropped the ICJ case into US court to be enforced. The D.C. Circuit frantically tried to seal off US citizens from protection of international law. The court decreed that UN Charter Article 94 requires US compliance with ICJ judgments… unless the Court presumes to give humans any rights. Thinking fast, the judges decided that US law that violates peremptory norms wipes out the ICJ’s authority. No matter that ICJ authority issues from the United Nations Charter, the world’s supreme pact. Congress passed a law that superseded it, so there.

In the outside world, the state’s responsibility was not so easy to escape. When the US framed Libya for the Lockerbie bombing and chased its head of state around with airstrikes, the US vetoed countermeasures in the Security Council. This was politics as usual, the primal struggle of all against all, standard US foreign-policy dogma. But the General Assembly condemned the US attack in the niggling legal terms of the ICJ. Its declaration, A/RES/41/38, became part of the body of law defining state responsibility for internationally wrongful acts.

The US government was helping to perfect the law of nations not as leader of the free world but as a comprehensive bad example. US contempt for rule of law together with the world’s rebukes did much to codify the law of nations. The US government took its place with the Huns and the hordes as barbarians marking off the pale with dreadful wrongs. They would never shed that role. For the proud successors of Robert Jackson, it was one thing pointing to Nazis and commies and saying, “You don’t want to be like them, do you?” It’s something else again when it’s Frenchmen saying that to Russians and pointing at you.

In 1992, the US resumed poking and prodding Libya with aircraft and ships to pick a fight, and turned down Libya’s offer to submit to arbitration. Libya dug up the relevant authority: The Montreal Convention of 1971, an anti-terror pact into which diplomats had slipped some basic rules for settling disputes. The US was caught off guard. It had signed up for a license to kill terrorists, only to find its terrorist enemies invoking the treaty to claim that they’d been framed. This was awkward, since Libya was, in fact, innocent and any independent court would say so. The World Court took the case. Libya asked the court to enforce the UN Charter by enjoining US aggression. Now the US found itself warring on two fronts: the air/sea battle it had planned, and a peaceful ambush in the Hague.

To the US government, the law was clear: under the treaty, the parties have to give arbitration six months to work before they go to court. The war would be over in six months. The World Court was jumping the gun. The court ruled, arbitration has failed, you refused it. Now the matter goes to court.

The US denied the existence of a legal dispute. The US was only acting for the Security Council – there was no bilateral dispute, since the UN Charter overrides the Montreal Convention. The Court did not back down. The Security Council had passed a resolution, but too late to cut the World Court out – peaceful resolution of this dispute had begun and would continue.

The US government had kept the Security Council’s attention fixed on imminent war. But now the government’s meticulous political groundwork in the Security Council was about to be balked by the international equivalent of a restraining order.

The Court might point to Charter Chapter VI and dictate a peaceful solution. The Court might cite the Charter’s prohibition on use or threat of force. Why, anything could happen. The Court might dig up long-buried clauses in the Charter. Chapter VII had some real stinkers in it. The permanent members had always let them alone. According to the letter of the law, US armed forces don’t just march off to war with the world cheering them on. The Security Council, not the Joint Chiefs, plans the wars. National forces are placed at the disposal of the Security Council. There’s something called a Military Staff Committee. It has authority to direct strategy. Little, peaceful countries might be asked to join. They can regulate armaments – bear in mind, these are foreigners, the sort of people who might fuss over all the two-headed babies in lands we had freed and prohibit depleted uranium shells. Their remit extends to disarmament, for goodness sakes. The leading military experts of the whole world, your future enemies, looking over your shoulder to apply the laws of war? Hamstring shock and awe with just proportion? Second-guess the necessity of each new war and death?

The troops will not be safe if you won’t let them run amok in a pinch. The risk to US forces was too great. US primacy itself was at stake. The Sixth Fleet stood down. The World Court had stopped a war.

The ICJ didn’t stop there. The case ground on and mortifying details of the US government’s shambolic put-up job came to light. Following standard procedure, FBI had sent an unqualified dolt to be taken in by CIA sleight of hand and to stake his reputation on the flimsiest evidence in court. Their man was Special Agent Thomas Thurman. Of Thurman’s various contradictory accounts, the best has him gurning in astonishment like a counter-terror Barney Fife at faked evidence proving Libyan involvement. Muammar Gaddafi dropped the case in 2003 to get out of NATO’s doghouse, but the damage was done.

To US government freedom-fighters the law had come to seem like Bentham’s Demon of Chicane. The US paid compensation to arch-enemy Iran to abort the case of The Aerial Incident of 3 July 1988 (Iran v United States of America). US troops had blasted a packed civilian airliner out of the sky – the US government didn’t want to find what the Court would make of that. The ICJ even ventured to make a legal case for nuclear disarmament. Given its increasingly dubious repute, the US government’s gigatons were its one remaining distinction, and now the world might try to outlaw them.

All the while, with glacial progress, the draft articles continued to take shape. They set out the consequences of seriously wrongful acts. The chivalrous unction of it unnerved US elites, realists and crazies alike. First of all, Stop. Don’t do it again. Make reparation in one of three ways: by restitution, restoring the status quo ante, or by monetary compensation for damage; or by satisfaction. All states have a role in righting serious wrongs, and the draft articles define it. Wronged states undertake a set procedure. They invoke responsibility and make a claim, subject to precise criteria, and possibly take strictly-delimited countermeasures. No use or threat of force. No compromise of fundamental human rights. No reprisals. Obey peremptory norms. Countermeasures must be proportional to the wrong, and they must stop when the wrong is put right, or when the matter goes to court. None of this is to impinge on the United Nations Charter.

So much for shock and awe. Priggishly applied, this notion threatened to sour many of the US government’s historic triumphs: Manifest destiny. Remembering the Maine. Hiroshima, Nagasaki, Castle Bravo. The saturation bombing of Cambodia and Laos. The School of the Americas torture curriculum. Operation Gladio’s attacks on civilian populations. Granada. Panama. Operation Praying Mantis.

The latter was a particular sore point. The US thrashed Iran in Operation Praying Mantis, biggest sea battle since World War II. We haven’t heard much about it since, though, because international jurists then wiped the floor with outclassed US government lawyers in the dry and inglorious courthouse sequel, the Case Concerning Oil Platforms. The US escaped reparations but got mired in a fearful morass.

The US functionaries seemed sincerely puzzled. Of course, we have a treaty with Iran, the US said, but it’s a treaty of friendship, commerce, and navigation. Our armed attack on Iran is none of those things, so how could it violate the treaty? America’s legal strike force couldn’t help dragging self defense into it, as the US government had been violently defending itself against anything that moves for forty years. But unlike US lawfare bureaucrats, the ICJ judges had read and parsed all the words in UN Charter Article 51, every little one, and then some. Suddenly it was no longer sufficient to bray, ‘Self defense!’ and go to war. The government lawyers found themselves over their heads, floundering in new and treacherous lexical seas: the criteria for recognizing and imputing an armed attack; tests for necessity and proportion of armed response. Unexceptional legal minds boggled to think whether a boat holed with no loss of life really calls for an aircraft carrier, four destroyers, three frigates, a guided missile cruiser, and an amphibious transport dock in two naval operations bigger than any in Korea or ‘Nam. Worst were the things they’d never thought of in the councils of war. The judges forced them off their self-contained hamster wheels of circular reasoning: What do you mean, Iran interfered with your commerce? You had no commerce with them, you were boycotting them. Besides, it was a war zone, How much commerce do you really expect?

For the Pentagon’s parochial elites, this was a dangerous new world. They had toppled Saddam’s statue in conclusive triumph, yet they sensed obscure and insidious perils. They felt the vague disquiet of Mastodons stalked by tiny yelping bipeds with sharp sticks. In addled alarm the House Constitution Subcommittee held hearings on H. Res. 568, Appropriate Use of Foreign Judgments in American Court Decisions. The resolution would have warned US courts away from “judgments, laws, or pronouncements of foreign institutions.”

And, in fact, state responsibility is profoundly un-American. It makes the state responsible for the conduct of all its constituent parts even if they have no separate legal personality under US law. This precept fixes US government responsibility for CIA conduct even as it tries to obscure its role with a chimera of arms-length private entities, informal networks of detailees, transitory inter-agency working groups, domestic agents in local government, and revolving-door sinecures. State responsibility pre-empts the old CIA trick of acting ultra vires or in direct breach of its operational authority.

State responsibility could change the US population’s worldview. In the culture imposed by government indoctrination, terror explains everything. But what if Americans came to see events from the viewpoint of state responsibility and wrongful acts?

The draft articles afford a useful viewpoint for the case of alien refugee Tamerlan Anzorovich Tsarnaev: settled in Boston near his uncle (in-law and associate of senior CIA official Graham Fuller) with his brother Jokar (who was steered to CIA contractor Brian Glyn Williams for mentorship and education that he wasn’t made to pay for), Tamerlan was sent to the Caucasus by the CIA sinecure Jamestown Foundation and tantalized with a receding prospect of citizenship. Menaced, along with his wife and sisters, with the threat of prosecution for petty crimes and murders, the hapless palooka was coercively paraded by government handlers through an outlandish series of incriminating stunts in Boston, and then accused of a cartoonish crime spree including a profoundly anomalous bombing, the shooting of a police officer, a robbery, and carjacking of a peek-a-boo witness to whom he brashly spilled the beans. Tsarnaev’s death at the hands of officials was followed by state deportation or murder of Tsarnaev associates and potential witnesses. Immersive media indoctrination has induced the public to frame all this as terror and not as an internationally wrongful act.

Or consider the case of an attempt on the lives of US Senators holding up repressive legislation. Only in America could the public be induced to view illegal biological weapons under the secure control of the US government as terror and not as a clear-cut breach of obligations under the Biological Weapons Convention or as an armed attack on the civilian population in breach of peremptory norms.

Or take the case of foreign attackers infiltrated into US territory and shielded from law-enforcement scrutiny by US government officials Tom Wilshire and Marion Bowman. The foreign attackers benefited from a dozen inter-agency exercises and aerial drills rescheduled to coincide, paralyzing government response with a confusing welter of simulated emergencies. They had a Saudi safe house, diffidently investigated in secret for more than a decade. Critical members of the National Command Authority left a captain in charge of the National Military Command Center and huddled in other command posts, then fibbed about it all to the investigating commission, which passed the porkies on. The galvanizing terror of 9/11 looks different as a wrongful act.

The law of state responsibility gets to the bottom of things. It slows the rush to judgment and to war. Set aside talk of crimes of states and punishment by states. National honor and even sovereignty itself comes not by avenging wrongs but by accepting responsibility. You’re not with us or against us, you’re more or less right or in the wrong, as the courts decide. A world order without enemies – the US government would wither and die.

Effectively concealed from the US public, responsibility and vengeful impunity fight it out in the Sixth Committee of the General Assembly. The Sixth Committee codifies international law and promulgates treaties. All UN member states belong to it by law. The Sixth Committee is preparing to codify state responsibility as a convention. States would commit to follow the draft articles antecedently, as Bentham hoped, before violations stir up angry passions.

Last year’s session showed the battle lines and forces arrayed. US satellites Australia, Denmark, and Great Britain set the stage: the articles were lovely but delicate hothouse flowers. Rough handling would spoil their fragile perfection. To beat them into shape as a convention might ruin them. In the contentious process of filling gaps and ironing out ambiguities, universal acceptance might be lost. The articles could emerge radically changed in the final covenant. The safest course is to endorse the articles themselves in a General Assembly resolution. The United States pointed to the anxious caution of its bloc. Keep the law in toothless customary form, the US said, continue its gradual development in case law. Israel echoed that view.

Cuba spoke as a living reminder of the covert fun and games culminating in the Bay of Pigs invasion and 50 years of US economic warfare. The Cuban delegate said countries that resisted a convention weren’t protecting the integrity of the articles, they were protecting their impunity. A convention would have enforcement measures. It would help stop wrongful acts and protect victimized states. Other victimized states spoke up. Guatemala wanted a convention, too. The Guatemalans were just then fighting a losing battle against the impunity of their genocidaire president, CIA protege Efraín Ríos Montt. They called for a binding instrument on internationally wrongful acts for the sake of human rights and the UN Charter. Indonesia, victim of half a million CIA-targeted mass murders, urged a convention to promote peaceful resolution of disputes. Venezuela felt some urgency, as a target of US-instigated treason and coups, to strengthen the rule of law. Iran, victim of a foreign coup entrenched with mass torture, target of proxy wars, nuclear sabotage, and assassination, had an obvious stake in “better application and promotion of international law.”

Portugal, Chile, Saudi Arabia and Russia lined up behind a convention. Belarus supported a declaration to lend UN authority to the articles as written; but then, to prevent selective application of the rules, set them down as a convention. In dire terms that would unsettle the CIA, Malaysia urged careful consultation, pointing to potentially enormous costs of ultra vires actions by rogue organs of the state.

Without a vote, the Committee adopted a draft resolution entitled “Responsibility of States for internationally wrongful acts” (A/C.6/68/L.19). By slow attrition, the world wears down US impunity as surely as the Great War drove the losing side to armistice and Versailles.

In 2016, less than two weeks after the next US president is sworn in, the government must take a position on state responsibility for internationally wrongful acts. The change of administration will have no effect on the US stance. This sort of thing is way above the President’s pay grade. State responsibility combines with international criminal law to form a pincer. As the world’s best hope to end the CIA’s sixty-year reign of terror, it’s an imminent threat to this regime.

Brian Littlefair is the author of Desert Burial. As a consultant specializing in foreign direct investment he worked with foreign joint ventures, international financial institutions and bilateral aid agencies, with volunteer work in food security, transparency, and human rights in the global south. Read other articles by Brian.