Does Violating International Law Make Us Safer?

This Administration is not merely incapable of learning, but seems insistent on doing the wrong thing with a vehemence. The invasion of Iraq was a violation of international law (the fig leaf of UN Resolution 1441 in the run up to the invasion has not impressed the experts), an attack on a country that posed no threat to the US and had taken no aggressive actions. Even if Saddam had possessed WMD, he had no ability to deliver them to the US.

Henry Kissinger spoke about a year ago at a synagogue to which he owed a big favor. It had sponsored his family’s escape from Germany, and as he tells the story, they got out at the last possible moment. It was an informal presentation, and Kissinger could not contain his contempt for the Administration, stating repeatedly not merely that they had made mistakes, but that every decision they made was the wrong one. My friend who was in attendance said it was the most unequivocal condemnation she had ever heard.

It appears to have enlisted a bit of support in their active, reckless incompetence. In the Guardian, James Galbraith dissects the manifesto of five former Nato generals, led by former chairman of the Joint Chiefs of Staff John Shalikashvili in arguing for pre-emptive nuclear attacks to prevent the spread of nuclear arms and WMD (hat tip Mark Thoma).

There are no checks on this process. We got it woefully wrong with Iraq, insisting they had WMD when a team of UN weapons had found none and was barred from completing its work. And it’s OK for India and Israel to not sign the international nuclear accords and become nuclear powers, but not for Iran. The US arrogance is breathtaking. We are a rapidly fading military power, yet we try to play the role of Collussus bestride the world. And because Iraq has visibly overstrained our capabilities, we are now having to threaten the use of nukes.

And even if you believe this is mere saber rattling intended to serve merely as a deterrent, there is no evidence that it is effective. Jonathan Glover’s book Humanity, which looks into why the horrors of the 20th century came about, also dissects how the Russian missile crisis was averted. He attributes it to two factors: the recent publication of Barbara Tuchman’s The Guns of August, which made clear how World War I was the result of failed communications and rigid assumptions, and a half-day briefing the new President and his key lieutenants received on the horrors of nuclear war. In fact, a gripping passage reveals how Robert McNamara had to go to some lengths to rein in the Navy, which was overly eager to engage the Soviets.

But perhaps the most articulate defense of the reason to stay within the confines of international law comes from Roger Bolt’s screenplay about Thomas More, A Man for All Seasons:

More: Yes. What would you do? Cut a great road through the law to get at the Devil?

Roper: I`d cut down every law in England to do that.

More: Oh! (advances on Roper) And when the last law was down, and the Devil turned round on you –where would you hide, Roper, the laws all being flat? (He leaves him) This country’s planted thick with laws –man’s laws, not God’s –and if you cut them down –and you’re just the man to do it –d`you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I`d give the Devil benefit of law, for my own safety`s sake.

Talking up pre-emptive strikes serves to legitimate unwarranted aggression, which per More’s speech, can just as easily be used to justify attacks on us.

From the Guardian:

Five former Nato generals, including the former chairman of the US Joint Chiefs of Staff, John Shalikashvili, have written a “radical manifesto” which states that “the West must be ready to resort to a pre-emptive nuclear attack to try to halt the ‘imminent’ spread of nuclear and other weapons of mass destruction.”

In other words, the generals argue that “the west” – meaning the nuclear powers including the United States, France and Britain – should prepare to use nuclear weapons, not to deter a nuclear attack, not to retaliate following such an attack, and not even to pre-empt an imminent nuclear attack. Rather, they should use them to prevent the acquisition of nuclear weapons by a non-nuclear state. And not only that, they should use them to prevent the acquisition of biological or chemical weapons by such a state.

Under this doctrine, the US could have used nuclear weapons in the invasion of Iraq in 2003, to destroy that country’s presumed stockpiles of chemical and biological weapons – stockpiles that did not in fact exist. Under it, the US could have used nuclear weapons against North Korea in 2006. The doctrine would also have justified a nuclear attack on Pakistan at any time prior to that country’s nuclear tests in 1998. Or on India, at any time prior to 1974.

The Nuremberg principles are the bedrock of international law on war crimes. Principle VI criminalises the “planning, preparation, initiation or waging of a war of aggression …” and states that the following are war crimes:

“Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”

To state the obvious: the use of a nuclear weapon on the military production facilities of a non-nuclear state will mean dropping big bombs on populated areas. Nuclear test sites are kept remote for obvious reasons; research labs, reactors and enrichment facilities need not be. Nuclear bombs inflict total devastation on the “cities, towns or villages” that they hit. They are the ultimate in “wanton destruction”. Their use against a state with whom we are not actually at war cannot, by definition, be “justified by military necessity”.

“The west” has lived from 1946 to the present day with a nuclear-armed Russia; no necessity of using nuclear weapons against that country ever arose. Similarly with China, since 1964. To attack some new nuclear pretender now would certainly constitute the “waging of a war of aggression …” That’s a crime. And the planning and preparation for such a war is no less a crime than the war itself.

Next, consider what it means to determine that a country is about to acquire nuclear weapons. How does one know? The facilities that Iran possesses to enrich uranium are legal under the non-proliferation treaty. Yes, they might be used, at some point, to provide fuel for bombs. But maybe they won’t be. How could we tell? And suppose we were wrong? Ambiguity is the nature of this situation, and of the world in which we live. During the cold war, ambiguity helped keep both sides safe: it was a stabilising force. We would not use nuclear weapons, under the systems then devised, unless ambiguity disappeared. But the generals’ doctrine has no tolerance for ambiguity; it would make ambiguity itself a cause for war. Thus, causes for war could be made to arise, wherever anyone in power wanted them to.

The generals’ doctrine would not only violate international law, it repudiates the principle of international law. For a law to be a law, it must apply equally to all. But the doctrine holds that “the west” is fundamentally a different entity from all other countries. As the former Reagan official Paul Craig Roberts has pointed out, it holds that our use of weapons of mass destruction to prevent the acquisition of weapons of mass destruction is not, itself, an illegal use of weapons of mass destruction. Thus “the west” can stand as judge, jury and executioner over all other countries. By what right? No law works that way. And no country claiming such a right can also claim to respect the law, or ask any other country to respect it.

Conversely, suppose we stated the generals’ doctrine as a principle: that any nuclear state which suspects another state of being about to acquire nuclear weapons has the right to attack that state – and with nuclear weapons if it has them. Now suppose North Korea suspects South Korea of that intention. Does North Korea acquire a right to strike the South? Under any principle of law, the generals’ answer must be, that it does. Thus their doctrine does not protect against nuclear war. It leads, rather, directly to nuclear war.

Is this proposed doctrine unprecedented? No, in fact it is not. For as Heather Purcell and I documented in 1994, US nuclear war-fighting plans in 1961 called for an unprovoked attack on the Soviet Union, as soon as sufficient nuclear forces were expected to be ready, in late 1963. President Kennedy quashed the plan. As JFK’s adviser Ted Sorensen put it in a letter to the New York Times on July 1, 2002:

“A pre-emptive strike is usually sold to the president as a ‘surgical’ air strike; there is no such thing. So many bombings are required that widespread devastation, chaos and war unavoidably follow … Yes, Kennedy ‘thought about’ a pre-emptive strike; but he forcefully rejected it, as would any thoughtful American president or citizen.”

It’s not just citizens and presidents who are obliged to think carefully about what General Shalikashvili and his British, French, German and Dutch colleagues now suggest. Military officers – as they know well – also have that obligation. Nuremberg Principle IV states:

“The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

Any officer in the nuclear chain of command of the United States, Britain or France, faced with an order to use nuclear weapons against a non-nuclear state would be obliged, as a matter of law, to ponder those words with care. For ultimately, as Nuremberg showed, it is not force that prevails. In the final analysis, it is law.

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14 comments

  1. v

    I’d just like to start by saying this blog is an invaluable resource. As someone new to the big finance/macroeconomic game, I truly wish I had come across this blog earlier. And as the praise your detailed, stellar coverage of the recent monoline trouble shows, I am not alone in this thinking. As the kids would compliment, you write one sick blog YS.

    That being said, I have two small criticisms on this post (even though I agree with the gist of it and we share similar macro views).

    No offense, but the quoting or paraphrasing of Henry Kissinger is, IMHO, basically worthless. Kissinger is a bona fide war criminal (just ask the Argentines, Vietnamese, Chileans, Bangladeshis, Cambodians, and others). That a war criminal is condemning the Bush Admin (which certainly has a few criminals of its own; those involved with CIA black sites, rendition, interrogation techniques, NSA wiretap program, DIA hyping of Iraqi WMDs, DOJ under Gonzales, etc) is beyond silly. I guess it stridently underscores the incompetence of the Bush Admin (i.e. “Hey, even Dr. Strangelove thinks the Bush Admin is incompetent.”). But, and perhaps this is unintended, it seems from your post that you give Kissinger’s opinion far, far too much credit. In any case, for anyone interested in Kissinger do check out The Trial of Henry Kissinger by Christopher Hitchens, which later became a documentary.

    My second criticism has to do with the term “International Law”. While there is some semblance of International Law or something like it for which we must have a term, there is, as yet, no genuine, true, real International Law. This is because a law must have some mechanism (i.e. authority) for enforcement. While the UN can draft all kinds of resolutions, it has no authority to enforce them. And frankly, I would not like the current UN to have such authority since many of its members are nondemocratic.

    Treaties between and amongst nations are closer to real International Law, but still fall short. Even though the nations negotiate and agree to the treaty, any violation results in war (or perhaps economic sanctions) instead of a trial. It’s funny, but perhaps the closest thing to some semblance of International Law (and court) is the WTO. However, once again, there is no ultimate (forceful) authority to obey a WTO ruling. And the WTO clearly falls short of being a fully transparent and democratic entity.

    For those interested in a thought provoking, creative, detailed look at what a fully democratic and transparent WTO, IMF, and UN would look like, please, please check out George Monbiot’s incisive The Age of Consent: A Manifesto for a New World Order. (And do not let the subtitle scare you, it is very well reasoned and completely straight forward.)

    Once again, thank you so very much for the invaluable writing YS. I hope this comment was not overly critical; it certainly was not meant to. Thanks again.

  2. doc holiday, your SIFMA laser beam

    I enjoyed your blog/story there and this in specific:

    “World War I was the result of failed communications and rigid assumptions, and a half-day briefing the new President and his key lieutenants received on the horrors of nuclear war”

    One thing taking on a lot of my time lately is thinking related to cognition, i.e, cognoscere, “to know”.

    Einstein, well known for theory and cognitive “imagination” fused together fragmented ideas and then connected those parts into a greater whole; however, as with one of his early physics papers, e.g, “On a Heuristic Viewpoint Concerning the Production and Transformation of Light”, it is suggested that Einstein remained in a heuristic state where he was not satisfied or able to fully understand quantum theory; he thought the implications of quanta were heuristic assumptions

    With that as background for my comment, I return to your story and : “rigid assumptions, and a half-day briefing”

    Assumptions and heuristic imagination is what fuels our thoughts, dreams and thus shapes our ability to shape what we know into what may be or what is possible.

    Therefore, it makes me angry to see our world polluted by people that are corrupted by mindless dogma which forces them to believe that they must think in narrow and shallow terms, and thus they are locked into an in-ability to think in future positive terms. How do these people that are clones of Hitler rise to power as if they are evil seeds which spread like noxious weeds:

    A noxious weed is also commonly defined as a plant that grows out of place (i.e. a rose can be a weed in a wheat field) and is “competitive, persistent, and pernicious.” (James, et al, 1991).

    The people that have gained power in this era seem hellbent on destruction and it is amazing that the majority of people are incapable of grasping the magnitude of the damage that is being done; this is the nature the core and the heart of an insidious cancer that thrives on people that lack imagination or the brainpower to think in terms of reading information, e.g, stories like you just posted — then to be able to connect the puzzle pieces or move from one pattern of dots to see that there are other dots that are connected and that there is an important story that depends on heuristic interaction.

    Maybe people are burned out, but think in terms of
    this story, related to the point of this:

    ” half-day briefing the new President and his key lieutenants received on the horrors of nuclear war.

    Kennedy was connected to a heuristic network where he obtained information and then connected the dots and realized that he needed to think in future terms and be ACCOUNTABLE for his actions and thus the consequences of his actions. Why do we not have better people in our world who are able to think with clarity? We live in a time where pirates and retarded nazi-minded boobs are destroying our future!

    I feel better now and dont care if I hit a few wrong keys!

  3. Anonymous

    Iran is different from other countries because the leadership of that country frequently threatens to use nukes on the United States as soon as they are able. If Bush wasn’t such an idiotic clown he would be saying this publicly and frequently. And who gives a rat’s anus about international law or Henry Kissinger? No other nation that isn’t protected by the US military does. Nations that are not freely engage in war, mass murder, or just plain genocide. It mostly escapes notice except to blame the US for not stopping it. And your last paragraph is just silly. What Nuremberg showed with crystal clarity is that those with superior force get to impose their will upon the defeated. Their law rode in with the army.

  4. Yves Smith

    v,

    Re Kissinger, I am not a fan of his, but didn’t want to get into the controversy over him. The point was (and I should have made it explicit) that even a guy who came up with the concept of mutual assured destruction, which most people considered deranged at the time, thinks that the Bush Administration’s aggressive and unilateral actions are dead wrong. If a Zionist and someone who is not shy about the use of force and black ops is dead against the Bush program, who but utter wingnuts is on their side?

    Agreed re your point about international law being a vague construct, but no matter how vague that construct is, aggression, and far worse, a nuclear strike against a party who is merely deemed to be a threat doesn’t fly in any of the multiple playbooks out there. I have heard others say good things about Monbiot and really need to find time to read him.

  5. Yves Smith

    Anon of 7:28 PM,

    Tell me where Iran has threatened the US with nukes. They haven’t. They I believe have said they will wipe Israel off the map. Last I checked, Israel has not become our 51st state.

    The US has repeatedly threatened Iran with nuclear strikes. Iran has said:

    “The United States has the power to cause harm and pain,” Ali Asghar Soltanieh, the chief Iranian delegate to the IAEA, said, reading from a statement. “But the United States is also susceptible to harm and pain. So if that is the path that the U.S. wishes to choose, let the ball roll.”

    The Iranians have said they will retaliate. They have never once threatened us with nuclear weapons. Yet we are now trying to claim they are aggressors.

    Moreover, there is no evidence they possess nuclear weapons, and even if they did, they don’t have missiles that can deliver them here. Even North Korea, which has been working hard at being a threat, was believed to be able to perhaps deliver a missile to Hawaii, yet there last little attempt to make a demostration was a high profile failure that went splash in the Sea of Japan.

    Yes, the Iranians can cause great harm, It’s called the Strait of Hormuz. It is 21 miles wide and all of the Gulf states’ oil goes through it, at least 40% of the global supply. It would be a low tech operation to block it, and with all the ham-handed threats the US has made, I am sure Iran has multiple contingency plan for how to do it.

    $200 a barrel oil would be painful indeed.

  6. v

    Thought as much in regards to Kissinger; therefore I had the Dr. Strangelove quip in my earlier comment. I should have realized as much. Once again, my apologies if my earlier comment seemed a bit too harsh. It was not intended as such.

    Once again, thank you for the excellent blog. And I, too, highly recommend the Monbiot book.

  7. Yves Smith

    v,

    No need to apologize; your disagreement was respectful and supported by logic and information. I hadn’t made my point of view clear. You also gave a lot more info about Dr. K than I would have, which is also of benefit to readers.

  8. Anonymous

    Iran frequently threatens the US in Farsi not English. In English they dish out the usual platitudes that the left loves so much. English is my native language and I have never seen the US threaten to nuke Iran. I don’t particularly care about Isreal and it appears neither do you. But you should be aware that Iran refers to Isreal as the little satan and the US as the great satan.Hmmmm…what does that mean? Your belief that long range rockets are the only way a motivated enemy can deliver nukes just seems quaint to me. And I’m sure if Iran blocked the straits of Hormuz you would belief it was the fault of the US, no matter what.

  9. Yves Smith

    Iran gave useful intelligence to us post 9/11 and made very serious offers of assistance to us repeatedly through the Swiss, including telling us where Bin Laden was, helping us stabilize Afghanistan (and more important leaving) and bringing Hamas to heel in negotiations with Israel. Stratfor, which is often the mouthpiece for the Mossad, wrote repeatedly in 2002 about “the coming US-Iran alliance.”

    We decided to rebuff their overtures with unwarranted hostility. An Iranian diplomat was captured and held for two months by Iraqi soldiers in a unit under the direction of the US army. The kidnapping of a diplomat is outside the pale of acceptable behavior. How would you react if the Chinese had occupied Canada and then kidnapped one of our diplomats?

    The reports of aggressive action by Iranian boats are completely trumped up. We’ve also been flying in their airspace. If you want to assign blame, far more lies on our side than theirs.

    As I mentioned above, Kissinger has said that every single action made by this Administration has been wrong. I am certain he’d include our posture toward Iran.

  10. Yves Smith

    On further thought, the Stratfor articles that talked about the US-Iran alliance were post the US invasion.

    I also suggest you read Elaine Meinel Supkis. She is a close watcher of US-Iran dealings. Although her writing style can be a bit eccentric, she is an exhaustive researcher.

  11. Anonymous

    Re: Last I checked, Israel has not become our 51st state.

    >> Where have you been? Israel manages The American Dream on Wallstreet and flies a flag at The Whitehouse; when The Fed lowers rates, I thought it was policy to have a flag from Israel behind Ben’s head.

  12. Anonymous

    I think you were responding to me at 5:52 and 6:17. Anyway thanks for the link. I skimmed over some of what’s there earlier and I intend to check back. But I stand by my earlier remarks. I strongly suspect that anything Iran did post 9-11 was motivated by fear of a united country that was potentially angry enough to crush them. This obviously isn’t the case now. I’m skeptical that any Iranian captured in Iraq is actually a diplomat. I’ve read about blond-haired passing-for-American Iranian special forces even wearing American uniforms and killing US troops. I’ve also seen numerous reports about Iran arming both Shia and Sunni groups in Iraq both against US troops and each other. I’ve also seen many reports of Iran providing shaped charge IEDs to Iraqi insurgents which are quite lethal to American troops. In any case Iran is responsible or partially responible for many acts of terrorism against both the US, Isreal, and Lebabon including the bombing of the marine barracks in 1983 and the Khobar Towers bombing.Doesn’t this bother you at least a bit? I present this because you appear to think that we just became hostile to Iran for no reason.I’m curious about the US overflights over Iranian territory. I haven’t seen that accusation. In any case I dispute your statement that more of the blame lies with us than with them. Otherwise, thanks for the blog and I intend to keep reading even if we disagree on this point.

  13. Yves Smith

    I have to differ with you on where Iran’s interests lie. When we first went into Iraq, the party line was that were were going to set up a democracy and leave (although probably leaving a major airbase there, since our presence in Saudi Arabia was becoming a major source of hostility with the population).

    Iran had every reason to welcome this. They hated Saddam. Similarly, an unstable Afghanistan, which borders them, is not in their interest.

    When it became clear that that US was an occupying power with no plan to leave, that changed the equation.

    I differ with you on the basis premise. We don’t belong in Iraq. We never belonged in Iraq. Even with the sanctions and the oppression of Saddam, the average citizen had a better life. Safety is now a huge issue, the hospitals are a mess, everyone in the middle class who can flee has, electricity is unreliable, and the place is descending into anarchy. If China occupied Canada and the country started falling apart, we’d be meddling big time too, to try to get the Chinese out. And that is independent of the threats we have made against Iran.

    I was told of the reporting on the Iranian overtures in detail (the ones made via the Swiss, not the ones mentioned in Stratfor) but was never sent the link. I will pester the person who mentioned it and will post it here when I get it.

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