The state as a criminal

What know the laws that thieves do pass on thieves?

- Shakespeare; Measure for Measure; Act II, Scene I.

IN a resolution adopted unanimously on December 11, 1946, the United Nations General Assembly affirmed "the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgement of the Tribunal". Article 6 of the Charter of the International Military Tribunal defined three international crimes "for which there shall be individual responsibility". They are "crimes against peace. Namely planning... or waging a war of aggression"; "War crimes"; and "crimes against humanity". The Tribunal ruled: "That international law imposes duties and liabilities upon individuals as upon states has long been recognised... The very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state" (emphasis added, throughout).

Since the Nazi state was already destroyed, the Charter concerned itself with its agents; the men who had run it. The principles it propounded, however, touch the state as well. The Chief Prosecutor of the United States Justice Department, Robert H. Hackson, then also a Judge of the U.S. Supreme Court, boldly declared in this opening speech before the Tribunal: "Let me make it clear that while the law is first applied against German aggressors, the law includes, and if it were to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment."

Over half a century later his country and its ally, the United Kingdom, invite the application of this principle to themselves for their naked aggression against Iraq.

In his opening speech, Attorney-General Sir Hartley Shawcross, the British Chief Prosecutor, spoke in more explicit terms. He refused "to reduce justice to impotence by subscribing to the outworn doctrines that a sovereign state can commit no crime and that no crime can be committed on behalf of the sovereign state by individuals acting in its behalf."

He amplified: "There is not anything startlingly new in the adoption of the principle that the state as such is responsible for its criminal acts... In fact the immeasurable potentialities for evil inherent in the state in this age of science and organisation would seem to demand, quite imperatively, means of repression of criminal conduct even more drastic and more effective than in the case of individuals."

Francois de Menthon, the French Chief Prosecutor, said, "It is necessary that, after having premeditated, prepared and launched a war of aggression... after having thereupon piled up the most odious crimes in the course of the war years, Nazi Germany shall be declared guilty and her rulers and those chiefly responsible punished as such."

Donnedieu de Vabres, the French member of the Tribunal, expressed the view that all that prevented the principle of the criminal responsibility of the state from being applied was the suspension of German sovereignty as a result of its defeat.

Dr. Nina H.B. Jorgensen's pioneering work makes a very timely appearance. Her research is exhaustive and her analysis is brilliant. The choice of the subject was motivated by visits to the Hiroshima Memorial Museum (1988), Dachau Concentration Camp (1990) and Yad Yashem Holocaust Museum, Jerusalem (1993). One hopes that after the brave people of Iraq rid themselves of the stooges installed by the U.S.-U.K. in Baghdad, they will build a memorial to the generation of children who died of malnutrition since 1991 and to the ravages wrought by the troops of this sordid alliance.

Where are the weapons of mass destruction to dismantle which the war was avowedly launched? Iraq was disarmed first under U.N. auspices, and rendered defenceless deliberately for the U.S. and the U.K. to attack it with impunity. The Security Council Resolution 1441 of November 8, 2002 made a false statement by Iraq (casus belli). In an article entitled "Who Lied to Whom?", Seymour M. Hersh exposed in The New Yorker (March 31, 2003) the lies retailed by the U.S. and the U.K. It was sub-titled "Why did the administration endorse a forgery about Iraq's nuclear programme?" It endorsed the forgeries perpetrated in London. It was this false evidence "which helped to mollify the democrats and two weeks later the resolution (was) passed overwhelmingly, giving the President a congressional mandate for a military assault on Iraq." On March 7, Mohammed El Baradel, Director-General of the International Atomic Energy Agency, told the Council that the documents cited to establish Iraq's procurement of uranium from Niger were fakes ("not authentic").

Hersh adds: "Forged documents and false accusation have been an element in U.S. and British policy toward Iraq at least since the fall of 1997, after an impasse over U.N. inspections. Then as now, the Security Council was divided, with the French, the Russians, and the Chinese telling the United States and the United Kingdom that they were being too tough on the Iraqis. President Bill Clinton, weakened by the impeachment proceedings, hinted of renewed bombings; but, then as now, the British and the Americans were losing the battle for international public opinion. A former Clinton Administration official told me that London had resorted to, among other things, spreading false information about Iraq. The British propaganda programme - part of its Information Operations, or I/Ops - was known to a few senior officials in Washington. `I knew that was going on', the former Clinton Administration official said of the British efforts. `We were getting ready for action in Iraq, and we wanted the Brits to prepare'."

On March 14, Senator Jay Rockefeller, of West Virginia, the Senior Democrat on the Senate Intelligence Committee, formally asked Robert Mueller, director, Federal Bureau of Investigation to investigate the forged documents. Rockefeller had voted for the resolution authorising force last fall. Now he wrote to Mueller, "There is a possibility that the fabrication of these documents may be part of a larger deception campaign aimed at manipulating public opinion and foreign policy regarding Iraq." He urged the FBI to ascertain the source of the documents, the skill-level of the forgery, the motives of those responsible, and `why the intelligence community did not recognise the documents were fabricated'.

Dr Jorgensen remarks: "States crimes are the most serious of all crimes; they belong in a category of their own, beyond Dante's Ninth Circle `where the betrayers of their own kindred cause the devil himself to weep tears of bewilderment'. It would seem that this is justification enough for undertaking a detailed examination of the concept of state criminality in an effort to discover whether international law is impotent in an area where the need for its vitality is self-evident."

The International Law Commission had adopted Draft Articles on State Responsibility. Its Article 19 enabled any party to the Convention to move the U.N. General Assembly or Security Council against any state on the charge that international crime has been committed, and it could be referred to the World Court eventually.

On December 12, 2001, the General Assembly adopted the document without a vote. But Article 19 was dropped in the second reading. The author writes: "Anticipating such an outcome, the aim in this book was to place Article 19 squarely in its historical context to explore ways in which the concept of state criminal responsibility had already permeated international law and to consider possibilities for its development in the future... The action by the Commission did not involve the rejection of the concept of state crimes as a matter of principle."

Part I of the Draft Article now proceeds on the basis that internationally wrongful acts of a state form a single category and that the criteria for such acts (in particular the criteria for attribution and the circumstances precluding wrongfulness) apply to all, without reference to any distinction between `delictual' and `criminal' responsibility. The idea of a state being above international law is discredited. The author reminds us that "the resignation of the Dutch Cabinet on April 16, 2002 in response to the publication of a report by the Netherlands Institute for War Documentation implicating Dutch troops in the genocidal massacre at Srebrenica in 1995, suggests how mature democracies can share in the responsibility for international crimes. It is also notable that the European Court of Justice recently imposed a `penalty payment' on a state for its persistent failure to comply with its obligations as a member of the European Union."

After the Second World War, individual criminal responsibility under international law for acts of state became well-established. What has the law to say of state responsibility for international crime? The march of international legislation is impressive. The Assembly adopted in 1970 a "Declaration on Principles of International Law Concerning Friends, Relations and Cooperation Among States in Accordance with the Charter of the United Nations"; on December 21, 1965, a "Declaration on Inadmissibility of Intervention in the Domestic Affairs of States", and on December 14, 1974, the "Definition of Aggression", which says in Article 5 "1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. 2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility". But, how is that responsibility to be enforced if the aggressor is the sole super-power?

What could be the remedies? Some like declaratory judgments, pecuniary compensation and punitive damages are discussed in detail in the Chapter on "The Problems and Modalities of Punishing a State". A good precedent is the judgment of the District Court of Tokyo in 1963 declaring that the dropping of atomic bombs on Hiroshima and Nagasaki by the U.S. was contrary to certain fundamental principles of international law.

Predictably, the U.S. strongly opposed the inclusion of the concept of state's criminal responsibility in the ILC's Draft. Israel and the U.K. concurred. India, as the author records, "felt that the distinction between international crimes and delicts was bound to promote international solidarity because it recognised the fundamental interests of the international community as a whole".

The latest edition of the classic Oppenheim's International Law (1996) holds that "the liability of states is not limited to restitution or penal damages. Certain internationally wrongful acts attract, by reason of the special importance of the subject matter of the obligation which has been breached, a special and more severe degree of responsibility. The state, and those acting on its behalf, bear criminal responsibility for such violations of international law as by reason of their gravity, their ruthlessness, and their contempt for human life place them within the category of criminal acts as generally understood in the law of civilised countries."

The author accepts that, as of now, positive law does not recognise the concept of state responsibility for international crimes; but she opines emphatically that the concept "is an emergent general principle of international law" and "an emerging category of customary international law".

WAS the U.S.-U.K. attack sanctioned by the U.N. Charter? The Charter permits use of force only pursuant to a decision of the Security Council under Chapter VII or in self-defence (Article 51). The only exception of authority for unilateral action was under Article 107 "in relation to any State which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorised as a result of that war by the government having responsibility for such action". It became obsolete and was repealed.

The doctrine of "revival" of the Security Council's previous resolutions, when it rejected the two drafts for action proposed by the U.S., U.K. and Spain, on February 24 and March 7, is preposterous. Is there any Security Council resolution which sanctions - or can sanction - change of regime in Baghdad? But that, surely, was the main, openly avowed objective of the U.S.

Section 3 of the U.S. Iraq Liberation Act, 1998 is itself an open avowal of intent to break international law: "It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime."

The Washington Post reported on January 25, 1991, how an attempt was made on President Saddam Hussein's life. The British House of Commons' Select Committee on Foreign Affairs was informed that the coalition's aim even then was to remove Iraq's President.

On November 8, 1990, the U.N. Secretary-General Perez de Cueller said that the U.S. had no authority to wage war against Iraq unilaterally since the Council was seized of the matter. Any attempt to take military action against Iraq under Article 51 could "face legal difficulties". Responding specifically to President Bush's assertion a day before that the U.S. could take action against Iraq under Article 51, in response to the appeal of the Emir of Kuwait, he said that Article 51 was not available three months after Iraq's invasion.

This leaves Resolution 678 as the sole source of legitimacy. Its crucial para 2 reads: "Authorise member states cooperating with the Government of Kuwait, unless Iraq on or before January 15, 1991, fully implements the foregoing resolutions, to use all necessary means to uphold and implement Security Council Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."

Is it not strange that in a document of such momentous importance the use of armed force was not explicitly sanctioned? Resolution 665 (August 25, 1990) had explicitly referred to states "deploying maritime forces" in the Gulf and authorised them to enforce the embargo.

The Security Council's resolutions in similar situations could not have been unknown to the draftsmen of Resolution 678.

Its resolution of June 27, 1950, on Korea asked member-states to assist the Republic of Korea "to repel the armed attack". Resolution of July 13, 1960, on the Congo authorised the Security General "to provide the government with such military assistance as may be necessary". The resolution of November 24, 1961, on Katanga. Katanga's secession from the Congo empowered it "to take vigorous action, including the use of requisite measures of force, if necessary" for defined ends. The Resolution of April 9, 1966, on Rhodesia (now Zimbabwe) is very apposite in that, like Resolution 678, it delegated the power to the state, the U.K. It was authorised "to prevent by the use force if necessary" breaking of the oil embargo.

The absence of such explicit language authorising use of force in Resolution 678 cannot be explained away as being implied in what is a formal document of grave consequence. Even the notorious Gulf of Tonkin Resolution, passed by the U.S. Congress on August 10, 1964, authorised "all necessary steps, including the use of armed force".

Next came the ceasefire Resolution 687 of April 3, 1991. It laid down a host of conditions and concluded that the Council "decides to remain seized of the matter and to take such further steps as may be required for the implementation of this Resolution and to secure peace and security in the area."

It is this Resolution 687, even weaker than Resolution 678 which is sought to be "revived" now over a decade later, because the Council refused to give the U.S. and U.K. any sanction for attacking Iraq. When Resolution 1441 was adopted on November 8, 2002, Russia, France and Germany said explicitly in a joint statement that "in case of failure by Iraq to comply with its obligations" the fact would be reported to the Council and "it will be then for the Council to take a position on the basis of that report".

U.S. Representative John Negroponte explicitly said that the Resolution had "no `automaticity' with respect to the use of force". On November 13, Secretary of State Colin Powell said that if the Council failed to act on Iraq's breaches, "then the U.S. certainly, as does any other member of the Security Council retains its ability to act in self-defence". This, the only ground on which a member can act unilaterally, was not available now. A day earlier, in a calculated fudge, he said that the U.S. "retains its option to act, if the Security Council doesn't act". This option is certainly not legally available, except in self-defence.

Rebuffed at the Council, Bush demanded on March 17, that President Saddam Hussein must leave Iraq within 48 hours. Powell said his draft of March 7 "will die anyway because it had a built-in date of March 17" for Iraq's compliance. The U.S., thus, gave an ultimatum not only to Iraq but also to the U.N. It launched a war on March 19 for its "national ends" - which is forbidden by the U.N. Charter.

While submitting the U.N. Charter to Parliament in 1945, the British government published "a commentary" on it, which said "power must be commensurate with responsibility, and it is on the great powers that the Charter places the main responsibility for the maintenance of international peace and security. The great powers have, however, accepted great limitations on their power to act. They themselves give solemn undertakings that they will not use force or the threat of force for national ends. They promise to submit disputes which threaten the maintenance of international peace and security to pacific procedures and, if these fail, to the Security Council itself... only when enforcement action is necessary is the complete unanimity of the Great Powers always required" (Cmd. 6666; HM, S.O., London, price ls.3d. net; a collector's prize).

SIGNIFICANTLY, U.N. Secretary-General Kofi Annan said on March 10, 2003, that if "action is taken without the authority of the Security Council, the legitimacy and support for any such action will be seriously impaired". He would not have spoken thus if Resolution1441 gave the sanction. Clearly he had in mind the Council's refusal to give the requisite sanction in March 2003 and the illegality of any unilateral action thereafter.

British Attorney-General Lord Goldsmith, a personal friend of Tony Blair damaged his credibility and that of his office by his opinion of March 18, which is full of quibbles. So is U.S. Ambassador Robert D. Blackwill's article in The Hindustan Times of April 8, only far louder in assertions ("Make no mistake" and "Nothing in UNSCR 1441 required the Security Council to adopt any further Resolution.")

Under Para 12 of Resolution 1441 the Council was "to convene immediately" after the inspectors reported "in order to consider the situation". Joshua Rosenberg, Legal editor of The Daily Telegraph wrote that "it is on that word (`consider') that Lord Goldsmith's entire argument hangs. If a further decision had been needed he explains, then the Resolution would have said so."

The Council is, surely, not a debating society but an organ set up by the Charter "to ensure... action". The words that follow the expression "consider the situation" remove all doubt - "and the need for full compliance with all of the relevant Council resolutions". That a vast majority of the Council saw no "need" for a resolution sanctioning military action itself implies a clear decision by the Council - a refusal to back the U.S.-U.K. combine.

Rosenberg noted that Goldsmith "did not put his name to the full Foreign Office paper (on the subject), that he did not publish it sooner and did not speak on it in the Lords debate". The Attorney-General was refuted by Lord Goodhart, Queen's Counsel, a liberal democrat, and Rabinder Singh, Queen's Counsel. Far more telling was the resignation of Elizabeth Wilmhurst, who had been a Legal Adviser to the Foreign Office for many years. This Attorney-General's opinion comprises uniquely a set of nine brief propositions, sparse in reasoning devoid of citations. It could not have been unaware of the fact that some jurists of eminence in Europe and the U.S. have questioned the validity of Resolutions 678 and 687. The opinion reads as a set of ipse dixit, not a reasoned legal opinion by the top law officer of the Crown on a matter of such grave importance on which there is much public disquiet.

Time was when the Legal Adviser of the British Foreign Office Sir Gerald Fitzmaurice refused to opine in support of British aggression against Egypt in the Suez Crisis. (Vide the writer's survey of the episode "The Truth and the diplomat", Frontline, June 8, 2001). He won fame as Judge of the International Court of Justice. Fitzmaurice snubbed the Lord Chancellor Lord Kilmuri for masquerading as "legal adviser". That right belongs only to the law officers of the Crown.

Attorney-General Sir Reginald Manningham-Buller (affectionately called "Bullying - manner") said apropos Nasser's seizure of the Suez Canal company's properties "we do not think that the use of that force would not justify the use of force by us".

Once when Robin Cook, then British Foreign Secretary, told Madeleine Albright, U.S. Secretary of State, that he had "problems with our lawyers" over using force against Serbia without the Security Council's approval, she advised "get new lawyers" (Michael J. Glennon; professor of International law, Fletcher School of Law and Diplomacy; U.N. Charter: The Rule of Law is breaking down; International Herald Tribune, November 22, 2002).

Tony Blair is smart. He appointed a personal friend as Attorney-General who can opine blithely that "a material breach of Resolution 687 (1991) revives the authority to use force under Resolution 678 (1990)". It will take time for the credibility of his office to "revive".

We live in a unique international set-up. Prof. Keylor's work carefully traces events since 1945 to explain how they enabled the emergence of a unipolar world in which law and morality, which the U.S. never tired of preaching to others, are flouted by it with impunity.

The Responsibility of States for International Crimes

A World of Nations: The International Order since 1945 by William R. Keylor; Oxford University Press; pages 452, Rs.395.