The 1989 United States invasion of Panama is not well remembered domestically, though it is remembered in Panama, where a national holiday commemorates the lives of the victims. Hundreds of Panamanian civilians were killed during the operation, which was the largest U.S. combat operation since the invasion of Vietnam. The invasion “saw the impoverished Panama City neighborhood of El Chorillo pulverized to the point of being referred to by ambulance drivers as “Little Hiroshima.” TV networks and newspapers in the United States gave almost no coverage to Panamanian deaths, instead focusing almost exclusively on the deaths of U.S. soldiers.[1]
The invasion, called “Operation Just Cause,” was a classic attempt to punish successful defiance. Panamanian dictator Manuel Noriega had been a U.S. asset during the 1980s but had ceased to be compliant and had been harassing U.S. troops stationed in the country. Noriega “ostentatiously thumbed his nose at the United States,” as intelligence expert Thomas Powers summarized it. Like Saddam Hussein, he had become a nuisance. The United States turned against Noriega because he wasn’t cooperating with their support for the Contras in Nicaragua. But his criminal charges stemmed from activity in the early 1980s, when the U.S. was still praising the amazing “free” elections he won in 1984. (In fact, he used murder, fraud, and secret funding from Washington to assure that his candidate would win. Secretary of State George Shultz flew down to praise Noriega for “initiating the process of democracy”—not such a strange comment in light of the Reaganite concept of “promoting democracy.”)[2]
Importantly, the invasion was blatantly illegal. It was condemned by the UN General Assembly, which passed a resolution that “strongly deplores the intervention in Panama by the armed forces of the United States of America, which constitutes a flagrant violation of international law and of the independence, sovereignty, and territorial integrity of States.” Other legal experts agreed that the invasion was a “gross violation” of international law. George H. W. Bush, in explaining the invasion to the country, offered no claim to legality. He didn’t have to, because the “what we say goes” principle applied.[3]
The crimes of the first half of the twentieth century led to dedicated efforts to save humanity from future wars. These efforts produced a broad international consensus on the principles that every state should follow, formulated in the United Nations Charter, which in the United States is “the supreme law of the land.” The charter opens by expressing the determination of the signatories “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” In fact, by that point war wasn’t just a “scourge.” After the development of nuclear weapons, it threatened the total destruction of all humankind. The charter therefore required straightforwardly that members “shall settle their international disputes by peaceful means” and refrain “from the threat or use of force against the territory or political independence of any state.” Under the charter, force can lawfully be deployed only when authorized by the Security Council, or under Article 51 of the charter, which permits the “right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Any other resort to force is a war crime. In fact, the aggressive use of force is the “supreme international crime,” in the words of the Nuremberg Tribunal. As international law specialists Howard Friel and Richard Falk point out, “International law presents clear and authoritative standards with respect to the use of force and recourse to war that should be followed by all states,” and if “under exceptional circumstances” any departure is allowed, “a heavy burden of persuasion is on the state claiming the exception.” That should be the conventional understanding in a decent society. And so it appears to be among the general American population, though, in sharp contrast, the idea receives little support within elite opinion.[4]
The UN Charter is the founding document of modern international law. Its basic principles have been consistently reaffirmed since its inception. They are clear and sound. The use of force requires authorization. Notably, individual states do not possess a “right of intervention,” for reasons explained by the World Court in 1949, which said that “the alleged right of intervention” cannot “find a place in international law,” because it “would be reserved for the most powerful states, and might easily lead to perverting the administration of justice itself.”[5]
The United States has had scant regard for the constraints imposed by international law. For instance, every year since 1992, the United Nations General Assembly adopts a resolution condemning the U.S. embargo against Cuba. The resolution condemns the United States embargo for violating the principle of “non-intervention and non-interference in [states’] internal affairs and freedom of international trade and navigation.” In 2022, the thirtieth consecutive year the resolution had been passed, the vote was 185–2, with only the U.S. and Israel voting against it. UN member states called the embargo “cruel, inhumane and punitive,” and Cuba’s Caribbean neighbors argued that the blockade “was stifling not only Cuba’s growth but that of the entire region.”[6]
A country with basic respect for the rule of law would, in the face of such overwhelming opposition from the entire international community, change its policy. Instead, the U.S. issues the same challenge to the UN that Andrew Jackson infamously gave to the Supreme Court: they have made their decision, now let them enforce it. This defiance persists under Democratic and Republican presidents alike.
To take another example, in the 1980s, Nicaragua had a strong legal case against the United States. Tens of thousands of people had died in the civil war fueled by U.S. support for the Contras, and the country was substantially destroyed. The attack was accompanied by a devastating economic war, which a small country isolated by a superpower could scarcely sustain.
So Nicaragua went to the World Court, which ruled in their favor, ordering the United States to desist and pay substantial reparations. Nicaragua dealt with the problem of being terrorized by a foreign power in exactly the right way. It followed international law and treaty obligations. It collected evidence, brought the evidence to the highest existing tribunal, and received a verdict.
The United States dismissed the court judgment and immediately escalated the war. So Nicaragua then went to the Security Council, which considered a resolution calling on all states to observe international law. The U.S. alone vetoed it. Nicaragua next went to the General Assembly, where they got a similar resolution, which passed with the U.S. and Israel opposed two years in a row (joined once by El Salvador). Nicaragua’s foreign minister Miguel d’Escoto protested that “to dispense with the rule of law in international relations is tantamount to condemning humanity to a future of suffering, death and destruction.” But U.S. policy is not guided by whether or not a given course of action “condemns humanity to a future of suffering, death, and destruction.”[7]
The United States has consistently undermined efforts to apply universal global standards of justice to its own actions. The U.S. has refused, for instance, to join the International Criminal Court (ICC), for fear that Americans could be prosecuted for crimes they commit (an intolerable outcome). In fact, it has gone further and resorted to extreme measures to undermine the court. The U.S. put major pressure on countries to sign agreements promising never to turn a U.S. citizen over to the ICC, pulling assistance from those countries that refused to enter such agreements. In 2002, the U.S. threatened to use its Security Council veto to block the renewal of UN peacekeeping operations unless the UN agreed to permanently exempt U.S. nationals from ICC jurisdiction. The 2002 American Service-Members Protection Act prohibits federal, state, and local authorities from cooperating with the ICC, and even prohibits military aid to countries that are parties to the ICC (with exceptions for favored allies). The law was dubbed the Hague Invasion Act because it authorizes the president to use “all means necessary and appropriate” to secure the release of any “U.S. or allied personnel” detained by the ICC, presumably including invading the Hague if this was “necessary.”[8]
American refusal to recognize the ICC rebounded against it when Vladimir Putin invaded Ukraine, at which point U.S. politicians, including Joe Biden, began demanding that Putin be put on trial for war crimes. Former Democratic senator Chris Dodd and former National Security Council legal adviser John B. Bellinger III, writing in The Washington Post, argued that it did not constitute a “double standard” for the U.S. to encourage the ICC to prosecute others while refusing to be bound by its jurisdiction, because the ICC should “not investigate every allegation of misconduct” but only those “not addressed by the nations that commit them.” Indeed, it conforms to the “single standard,” which is that the world’s laws do not apply to the United States, a country that has already addressed any and all misconduct it may have committed.[9]
We have seen that where there are international laws in place, the United States defies them when it so chooses. But the U.S. has also stymied efforts to create new international agreements that make the world safer. Take cluster munitions, for instance. There is a consensus among human rights groups that cluster munitions are an inherently barbaric weapon, because they leave hundreds of tiny unexploded “bomblets” strewn across the battlefield, which kill and maim for years after the cessation of war. Veteran national security journalist Jeremy Scahill describes witnessing the effects. In a marketplace in Serbia, he saw the aftermath of the use of cluster bombs, which “shred everything in [their] path into meat and limbs.” The result of any bombing is horrifying to see, he says, but cluster bombs are especially brutal, and he saw what had happened to children who picked up bomblets days after the initial attack.[10]
Well over one hundred countries have agreed to the Convention on Cluster Munitions, promising never to develop, stockpile, or use these weapons under any circumstances. The United States has refused to join. The Institute for Policy Studies notes that as a global consensus against the use of cluster bombs has developed, the U.S.—the largest manufacturer and user of them—has defended them as a valid tool of warfare. U.S. defense secretary Robert Gates called them “legitimate weapons with clear military utility,” while Richard Kidd, the director of the Office of Weapons Removal and Abatement in the U.S. State Department, said that “cluster munitions are available for use by every combat aircraft in the U.S. inventory; they are integral to every Army or Marine maneuver element and in some cases constitute up to 50 percent of tactical indirect fire support.” We both produce and use these weapons despite the condemnation of human rights groups. In Afghanistan between 2001 and 2002, the U.S. dropped over twelve hundred cluster bombs. Of course, this did not stop the U.S. from criticizing Russia for using cluster munitions in Ukraine, with the U.S.’s UN ambassador saying Russia was using “banned” weapons that had “no place on the battlefield.” (The transcript of her remarks was later edited to condemn only cluster munitions used against civilians.)[11]
There is no shortage of examples. The United States refuses to join 167 other countries in being a party to the Law of the Sea Convention, and has made the Biological Weapons Convention toothless by opposing methods for verifying compliance. Other crucial treaties left unratified by the U.S. include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), the Anti-Personnel Mine Ban Convention, the Convention on the Rights of Persons with Disabilities, and the Kyoto Protocol. In the case of the Genocide Convention, the U.S. took forty years to ratify the convention, and even then only did so with the express reservation that the U.S. was exempt from being accused of genocide. The issue is the same in every case: the U.S. is happy to accept restrictions on the power of other states, but reserves the right to act as it pleases.[12]
The United States has also used its veto power in the Security Council to thwart UN action on issues that the rest of the world supports. Its first veto was in support of the racist regime of Southern Rhodesia, which the UN was trying to sanction. In 2023, the U.S. vetoed a Security Council resolution “to condemn all violence against civilians in the Israel-Hamas war and to urge humanitarian aid to Palestinians in Gaza.”[13]
In Foreign Affairs, the leading establishment journal, David Kaye reviews one aspect of Washington’s departure from the rest of the world: rejection of multilateral treaties “as if it were sport.” He explains that some treaties are rejected outright, as when the U.S. Senate “voted against the Convention on the Rights of Persons with Disabilities in 2012 and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) in 1999.” Others are dismissed by inaction, including “such subjects as labor, economic and cultural rights, endangered species, pollution, armed conflict, peacekeeping, nuclear weapons, the law of the sea, and discrimination against women.” Rejection of international obligations “has grown so entrenched,” Kaye writes, “that foreign governments no longer expect Washington’s ratification or its full participation in the institutions treaties create. The world is moving on; laws get made elsewhere, with limited (if any) American involvement.” While not new, the practice has indeed become more entrenched in recent years, along with quiet acceptance at home of the doctrine that the United States has every right to act as a rogue state.[14]
Respect for domestic law by American presidents has been little better. Presidents typically regard constitutional restraints on executive power as merely suggestive.
For instance, under the United States Constitution, nobody is supposed to be deprived of their liberty without “due process of law.” However, in a small island prison at Cuba’s Guantánamo Bay, the United States has imprisoned hundreds of foreign nationals without even giving them the pretense of due process. Over many years and thanks to the relentless efforts of lawyers, most of the “detainees” have been released, but to this day thirty remain in limbo. Both Democratic and Republican presidents have continued this policy. In fact, there is no reason to have a prison at Guantánamo Bay other than to avoid the domestic legal processes that guarantee some elementary rights to criminal defendants.[15]
The wars waged by U.S. presidents are frequently illegal. Barack Obama, for instance, attacked Libya in flagrant violation of the War Powers Resolution, which requires congressional authorization for military engagements. The administration’s justification for not getting approval was laughable: A White House spokesman insisted that the administration’s bombing of the country did “not amount to hostilities” because no soldiers were put on the ground. Thus overthrowing the Libyan government did not, according to the administration, qualify as “hostilities.” ProPublica observed that in ignoring the law Obama was simply following a “well-worn path” for presidents, who have never recognized Congress’s authority to constrain executive power to kill people.[16]
Barack Obama claimed the right to kill American citizens, without any semblance of due process, even when they were far away from any battlefield. He personally approved a kill list (or “disposition matrix,” as it was known in the parlance of Orwellian euphemisms) that went unreviewed by any court. The New York Times reported on the dystopian internal deliberations. It is “the strangest of bureaucratic rituals,” in which “members of the government’s sprawling national security apparatus” pore over possible suspects and “recommend to the president who should be the next to die” in a kind of “grim debating society.” Reassuringly, the Times tells us that as “a student of writings on war by Augustine and Thomas Aquinas, [Obama] believes that he should take moral responsibility for such actions,” although he did not apparently question whether life-and-death decisions should be in the hands of an enlightened philosopher-king rather than the courts. This “strangest of bureaucratic rituals” is, after all, possible only by eliminating the basic legal guarantees that date back to the Magna Carta.[17]
In a democratic society where the people are sovereign, the representatives of the people (in the legislative branch) are supposed to make the laws, and the president (in the executive branch) is supposed to execute them. In the United States, however, presidents frequently assume that they are not bound by the law. “If the president does it, it’s not illegal,” to quote Richard Nixon’s infamous phrase.
To take another disturbing example: U.S. law explicitly bars aid to countries that systematically use torture. This law is sound and humane. But presidents simply defy the law. The United States supported Saddam Hussein when he was one of the world’s leading torturers. Leading recipients of U.S. aid include Israel, Egypt, and Turkey, which have all been cited by human rights organizations for their use of torture.
Examples of support for human rights abusers are legion. In 2021, Amnesty International condemned “the United States role in fueling ceaseless cycles of violence committed against the people of Colombia,” noting that “the United States government has been an agonizing party to the killing, disappearances, sexual violence and other torture, and horrendous repression of dozens of mostly peaceful demonstrations.” The U.S. “believed that the Colombian military was behind a wave of assassinations of leftist activists and yet spent the next two decades deepening its relationship with the Colombian armed forces.” During the Clinton administration, Turkey carried out monstrous acts of ethnic cleansing. Tens of thousands were killed, thousands of towns and villages were destroyed, hundreds of thousands were driven from their homes. The main support for the state crimes came from Washington: Clinton provided 80 percent of the arms as atrocities increased.[18]
In 2023, human rights organizations pleaded with the Biden administration to withhold military aid from Egypt, on the grounds that Egypt remained a serial human rights violator. Eleven members of the House Foreign Affairs Committee sent a letter to Biden imploring him to deny the aid, citing Egypt’s jailing of “journalists, peaceful civil society activists, human rights defenders and political figures.” By the text of the law, Biden was required to withhold aid from Egypt, but the administration simply “waived” the law. The New York Times says the administration concluded that “national security interests outweigh congressionally mandated benchmarks for Egyptian progress on human rights.” Of course, nobody ever says how our “national security” is served by giving Egypt hundreds of millions of dollars without imposing any of the human rights requirements that Congress has demanded. Egypt has certainly learned the lesson that it need not make any human rights concessions to the United States, because the money will keep flowing regardless. Biden’s administration concluded, according to the Times, that “America’s relationship with the most populous country in the region is too important to risk fracturing despite pleas from human rights activists for a much harder line from Washington.” But this is not a decision that the executive should get to make. The law prohibits aid to human rights abusers, regardless of how Biden feels about the consequences.[19]
It can be difficult to know when presidents are breaking the law. Edward Snowden exposed government surveillance programs far beyond the scope of anything Congress had authorized, which may well have been unconstitutional. By allowing the people to understand what their government was doing, Snowden performed a public service. He ought to have received a promotion. Instead, he has long been sought for prosecution, and will probably spend his life in exile. Government whistleblowers who expose major wrongdoing by the state are routinely prosecuted, with Barack Obama having been one of the most ruthless in applying criminal charges (despite once promising “the most transparent administration ever”). Jeremy Scahill points to the continuity between the Bush-Cheney absolutist view of presidential power and the view of the Obama administration: Obama “had an opportunity to roll back some of the executive branch power grabs” of the previous president; instead he maintained and even escalated them, “using the full power structure of the executive branch in the same excessive way that was being used under Bush and Cheney.”[20]
The defiance of domestic law reaffirms that when we speak of the actions of the U.S. state, we are not speaking of the collective will of the American people. Even when the people, through their representatives, succeed in putting restraints on the executive, the executive frequently ignores the restraints.
American violations of international law have been egregious and constant. They are committed by both Democratic and Republican presidents, and the facts are well documented. A brief run through some selected examples from the historical record will suffice to show that if the Nuremberg standards were consistently applied, every president since the Second World War would have to be convicted and sentenced.
In the case of Truman, we have not only the bombings of Hiroshima and Nagasaki, but the massive firebombing of Japanese cities that took place after the Nagasaki bombings, once the Japanese had offered to surrender. The bombings, “the heaviest conventional bombing of the war,” were intended as a “finale,” without any military justification whatsoever. Earlier we reviewed the case of Greece, where the United States fueled a murderous war of counterinsurgency, successfully demolishing the anti-Nazi resistance and restoring the old order, including leading Nazi collaborators, at the cost of some 160,000 lives, plus tens of thousands of victims of torture chambers.[21]
Under Eisenhower, the bombings of North Korea in 1951 and ’52 were an outright war crime. The Washington Post’s Blaine Harden explains that “after running low on urban targets, U.S. bombers destroyed hydroelectric and irrigation dams in the later stages of the war, flooding farmland and destroying crops.” Curtis LeMay, in an official Air Force history, comments, “Over a period of three years or so, we killed off—what—20 percent of the population.” Dean Rusk, the eventual secretary of state, says the United States destroyed “everything that moved in North Korea, every brick standing on top of another.” People were hanged for less than that at Nuremberg, but this wasn’t the only terrible crime from the Eisenhower years. There was also the CIA-led coup against democratically elected prime minister Mohammad Mossadegh of Iran and the overthrow of Jacobo Árbenz of Guatemala, which led to civil strife and mass killings.[22]
Little more needs saying about the crimes against Vietnam, Laos, and Cambodia during the Kennedy, Johnson, and Nixon years. Kennedy, whose Camelot government is still looked upon nostalgically by many liberals, first sent the Air Force to start bombing Vietnamese villages and authorized the use of napalm. Kennedy also laid the basis for the huge wave of repression that spread over Latin America with the installation of neo-Nazi dictators who were always supported directly by the United States. In the case of Johnson, the invasion of the Dominican Republic should be included. After the ousting of the U.S.-supported dictator, Johnson sent the Marines to “prevent the Dominican Republic from going Communist.” He then ordered FBI director J. Edgar Hoover to “find me some Communists in the Dominican Republic,” in order to justify the invasion. (Johnson wanted to prevent liberal intellectual Juan Bosch from being restored to power.) Again, a plain violation of the UN Charter.[23]
Richard Nixon’s crimes in Indochina need no further review, but one underreported horror was the Nixon administration’s support for one of the worst genocides of the twentieth century, the Pakistani killings of Bengalis in 1971. As The Washington Post’s Ishaan Tharoor explains, after Bengali nationalists scored an election victory, a crackdown by the Pakistani military “turned into a mass slaughter” in which “hundreds of thousands of women were raped” and “whole villages were razed, and cities depopulated.” The Nixon White House, however, “stood on the side of Pakistan’s generals—clear Cold War allies” and “covertly rushed arms to the Pakistanis—in violation of a congressional arms embargo.” Support for the genocide could not be excused on the grounds of ignorance; Kissinger received multiple “messages and dissent cables from U.S. diplomats in the field, warning him that a genocide was taking place with their complicity.”[24]
Gerald Ford was not in office for long, but still managed to commit major crimes. Ford and Secretary of State Kissinger gave Indonesia approval for its invasion of East Timor, which killed two hundred thousand people. Ford presided over U.S. support for Operation Condor, which undermined left-wing governments across Latin America and propped up right-wing dictatorships. Ford attempted to thwart the Church Committee’s investigation into U.S. covert operations, including illegal spying on domestic dissidents, illegal experiments on human subjects involving psychological torture, and assassination plots against foreign leaders. He warned the committee that to “make public the report on the subject of assassinations” would “result in serious harm to the national interest.” Note, again, that the public must be kept from making an informed decision about foreign policy, the “national interest” not being something the people of the nation are entrusted to pass judgment on.[25]
In the Carter years, major crimes included support for the Indonesian invasion of East Timor, already discussed, plus U.S. assistance to the Somoza regime in Nicaragua. In fact, it is a real tribute to the propaganda system that the press can still refer to a “human rights campaign” during the Carter administration, a presidency that sponsored and supported the Somoza family in Nicaragua, the shah of Iran, Marcos in the Philippines, Park in South Korea, Pinochet in Chile, Suharto in Indonesia, Mobutu in Zaire, the Brazilian generals, and their many confederates in repression and violence.
For Reagan, we do not need to make the case, because the World Court already issued its decision in Nicaragua v. United States, even if the U.S. ignored it. But it’s worth mentioning the invasion of Grenada, which was condemned by the UN General Assembly as “a flagrant violation of international law.” Reagan claimed the usual right to deploy violent force around the world wherever he pleased, and supported the white supremacist government of South Africa, even as that country became a pariah state. In 1988, the Reagan administration declared Nelson Mandela’s African National Congress to be one of the “more notorious” terrorist groups in the world. While greatly honored internationally, Mandela remained on the U.S. terrorist list until 2008, when at last a congressional resolution allowed him to enter the “land of the free” without special dispensation.[26]
The major crimes of the George H. W. Bush years have already been extensively covered. The invasion of Panama was an act of outright aggression in plain violation of the UN Charter and was condemned internationally. We have also discussed the overlooked crimes of the Gulf War and the resort to violence over diplomacy.
Within a few months of Bill Clinton’s arrival in office, he sent missiles to bomb Baghdad, without any credible pretext and in obvious violation of the UN Charter. During his administration, about half of military aid and training to Latin America went to Colombia, which had the worst human rights record in the hemisphere, and killed thousands. There was also Clinton’s 1993 missile attack on Iraq, in which three missiles hit a residential neighborhood. The legal justifications for this strike were entirely spurious, but such violations are so routine that the attack is a mere footnote to the Clinton presidency. In 1998, Clinton also bombed Sudan’s Al-Shifa pharmaceutical plant, destroying a crucial supply of medicine for a poor country. Clinton claimed the plant was producing chemical weapons, a claim for which no evidence was presented, but instead of taking his case to the United Nations, he bombed a sovereign country. Years later, The New York Times reported that the Sudanese still resented the attack, and the fact that “no apology has been made and no restitution offered.”[27]
The major crimes of the George W. Bush years have also been extensively covered. But the administration’s use of torture deserves more attention. In 2011, Amnesty International released a report called “Bringing George W. Bush to Justice,” which showed conclusively that acts of torture were carried out by the CIA in severe violation of international law. Bush himself, they said, was responsible, having personally “decided that the protections of the Geneva Conventions of 1949…would not be applied to [Taliban or al-Qaeda] detainees.” Under the UN Convention Against Torture, Amnesty found, states had an obligation to investigate and prosecute Bush.[28]
The view is shared by other analysts. U.S. Army Major General Antonio Taguba, author of a major internal report on human rights abuses, concluded: “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” Human Rights Watch, in an extensive report called “Getting Away with Torture,” said that within days of the 9/11 attacks, the Bush administration began crafting policies that “violated the laws of war, international human rights law, and U.S. federal criminal law.” These included “tactics that the U.S. has repeatedly condemned as torture or ill-treatment when practiced by others.” The administration sent detainees to undisclosed locations where they “were beaten, thrown into walls, forced into small boxes, and waterboarded.” Some in Guantánamo “were forced to sit in their own excrement, and some were sexually humiliated by female interrogators.” David Hicks, an Australian national who was held in Guantánamo, reported thinking: “How can they treat another human like this? How can they be so cruel?” as he recalled the “fear of pain, fear of the beatings, fear of the strange mind games I am subjected to.” HRW made clear that these abuses “did not result from the acts of individual soldiers or intelligence agents who broke the rules” but were the result of deliberate decisions by U.S. leaders to ignore the rules.[29]
There is no doubt whatsoever that the techniques used were torture, despite Bush administration euphemisms. A pro-war columnist who underwent waterboarding for a Vanity Fair article reached an unequivocal conclusion: “If waterboarding does not constitute torture, then there is no such thing as torture.”[30]
The list continues. Soon after Barack Obama came into office, he was awarded the Nobel Peace Prize in anticipation of his future contributions to peace. It was hoped that as a former constitutional law professor, Obama would break from his predecessor’s lawlessness. In his Nobel acceptance speech, which was devoted in substantial part to a defense of U.S. military power, Obama affirmed that “the words of the international community must mean something” and “those regimes that break the rules must be held accountable.” Obama cited as proof of his commitment to international law the fact that he had “ordered the prison at Guantánamo Bay closed.” (Obama did not close the prison at Guantánamo Bay.[31])
Obama’s commitment to enforcing rules against regimes that break them was immediately put to the test. He had a mountain of evidence that his predecessor’s government had committed heinous acts of torture in violation of both domestic and international law. A report prepared by the International Human Rights Clinic at Harvard Law School, and submitted to the United Nations Committee Against Torture, described the torture program as “breathtaking in scope.” But Obama soon decided that rather than enforce the law, he would “look forward as opposed to looking backwards.” The victims, of course, trapped in the past by the trauma of losing family and friends, may keep sourly “looking backwards,” but the United States has moved on. While Obama acknowledged that “we tortured some folks,” he worried that investigating the CIA would make operatives feel as if their conduct were being scrutinized: “I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders.” As Murtaza Hussain wrote in The Intercept, this “don’t look backward attitude” (which would be absurd applied to any other crime) guaranteed complete impunity for future wrongdoing, and by failing to prosecute Bush officials, “demonstrated that even if government officials perpetrate the most heinous crimes imaginable, they will still be able to rely on their peers to conceal their wrongdoing and protect them from prosecution.”[32]
Obama also conducted illegal drone strikes around the world, claiming the right to assassinate anyone he had personally determined to be unworthy of life. When Malala Yousafzai met with Obama in 2013, she warned him that “innocent victims are killed in these acts, and they lead to resentment among the Pakistani people,” meaning that ultimately “drone strikes fuel terrorism.” The same conclusion was reached in an NYU-Stanford study, which summarized the impact on Pakistanis, above whom “drones hover twenty-four hours a day,” a presence that “terrorizes men, women and children, giving rise to anxiety and psychological trauma among civilian communities.” There are numerous negative effects: humanitarian workers are reluctant to assist victims for fear of second strikes, people are afraid to gather in groups, family members are afraid to attend funerals, and children are kept at home. The entire fabric of the community is disrupted. Farea Al-Muslimi, a Yemeni man educated in the United States, told the Senate in 2013 that his efforts to promote the image of the United States in Yemen were in vain, because “when they think of America they think of the terror they feel from the drones that hover over their heads ready to fire missiles at any time.”[33]
In 2013, thirteen-year-old Zubair uh Rehman told Congress that he “no longer love[s] blue skies,” after seeing his mother blown to pieces in a U.S. drone strike. The drone “had appeared out of a bright blue sky.” Zubair came to “prefer gray skies” because “the drones do not fly when the skies are gray.”[34]
The criminality became more extreme under Donald Trump, who makes no secret of his thuggish disposition (he once boasted of having sent federal agents to murder an antifa activist). Civilian casualties from drone strikes increased significantly. With the assassination of Qassim Soleimani of Iran, Trump also claimed the right to unilaterally order the assassination of high officials in other countries.[35]
On the grounds that the Venezuelan government oppresses its people, the Trump administration imposed measures that inflicted even worse harm on the Venezuelan people. As Mark Weisbrot and Jeffrey Sachs showed in a study of the sanctions’ effects, they “reduced the public’s caloric intake, increased disease and mortality (for both adults and infants), and displaced millions of Venezuelans who fled the country as a result of the worsening economic depression and hyperinflation.” The sanctions caused an estimated forty thousand deaths across a two-year period, and fell hardest on the poorest Venezuelans. Importantly, Weisbrot and Sachs conclude that “these sanctions would fit the definition of collective punishment of the civilian population as described in both the Geneva and Hague international conventions, to which the U.S. is a signatory. They are also illegal under international law and treaties which the U.S. has signed, and would appear to violate U.S. law as well.” Yet the issue of impeaching Donald Trump over his deadly, illegal Venezuela sanctions was never even raised for public discussion.[36]
Vladimir Putin was universally condemned within the United States for trying to keep Ukraine within the Russian sphere of influence by military force. Ukraine, it is argued, has the right to choose its alliances, and Russia does not have the right to dictate whether Ukraine enters NATO or not. Russia certainly cannot use Ukraine’s slip from the Russian orbit as an excuse for regime change. All sound arguments. But let us consider an admission made by Mike Pompeo, who served as secretary of state under Donald Trump, in his memoir. Writing of Venezuela, Pompeo says that “we couldn’t tolerate” a country near Florida “putting out the welcome mat” for countries like Russia and Iran, because it constituted “a twenty-first-century violation of the Monroe Doctrine.” Pompeo admits that economic pressure was used to try to depose the existing government, and the “military option” (i.e., invading Venezuela) was even considered. The military option did not go unexercised because of the Trump administration’s respect for the UN Charter. Rather, Pompeo says, other means were expected to be sufficient to force regime change, such as destroying the government’s ability to export oil.[37]
Joe Biden’s term in office is not yet concluded as of this writing, but there are plenty of serious documented violations of international law, including his illegal air strikes on Syria, failure to uphold the rights of asylum seekers, transfer of cluster bombs to Ukraine, and support (against almost unanimous condemnation by the rest of the world) for Israel’s war on Gaza. Biden has subverted congressional approval processes to transfer arms to Israel and gone against the entire rest of the world to shield Israel at the UN. Biden’s climate policies, while better than Trump’s, have nevertheless resulted in record oil production, an achievement the administration is proud of, despite its role in wrecking the Earth.[38]
In a world where the basic principles of the UN Charter were enforced, and violators tried and convicted, none of these leaders would have escaped conviction for serious crimes. Furthermore, we have a Constitution. That Constitution says that treaties entered into by the government are the supreme law of the land. One of those treaties is the UN Charter. It has an article, 2.4, that says the threat or use of force in international affairs is banned. This means every leading political figure has violated the Constitution.
The matter is never even raised for public discussion.
Rather than follow international law, the United States has laid out an alternative vision to the UN-based order. It calls this the “rules-based order.” This phrase is used not to refer to the enforcement of international law as made by the UN, but the adoption of an obscure set of “rules.” In practice, the “rules” are set by the dominant global power, which across most of the world is the United States. As international relations scholar Stephen M. Walt writes, “When U.S. officials say ‘rules-based order,’ they mean the current order, whose rules were mostly made in America.” The U.S. has strong reasons to oppose the UN-based order, whose basic principle is that the threat or use of force is barred in international affairs, except in special circumstances. Attacking countries with no credible pretext, launching terrorist wars, trying to overthrow a parliamentary government by imposing harsh sanctions, or simply declaring that “all options are open” if a country does not meet certain demands—all are explicit violations of Article 2 of the UN Charter.[39]
Michael Byers observes in War Law: Understanding International Law and Armed Conflict that there is scarcely any effort to conceal “the tension between a world that still wants a fair and sustainable international legal system, and a single superpower that hardly seems to care [that it] ranks with Burma, China, Iraq and North Korea in terms of its adherence to a seventeenth-century, absolutist conception of sovereignty” for itself, while dismissing as old-fashioned nonsense the sovereignty of others.[40]
It is worth noting that just because something is a violation of law does not mean it is wrong, and just because something is legal does not mean it is not a “crime.” We know the United States is responsible for major crimes in the layman’s sense of this term. What we may reasonably ask is whether the acts that are documented beyond dispute are also crimes in the lawyerly sense, recognizing that when we raise this question, the law is also on trial. If we find that international law does not condemn certain atrocities as criminal in the technical sense, a rational person will regard the law, so understood, with all the respect accorded to the divine right of kings.
International law is in many ways inadequate and unfair. (Why should the United States, and a few other powerful countries, have veto power at the Security Council and be able to keep the wrongdoing of allies from being condemned?) Nevertheless, the basic principles of the UN-based order that were introduced after the Second World War remain sound to this day, and a country committed to “rules” ought to consider following them.[41]
As we have seen, the United States freely violates treaties when it pleases, and when the International Court of Justice ruled that the United States had acted unlawfully in supporting the Nicaraguan Contras, the U.S. simply refused to recognize the court’s jurisdiction and blocked enforcement of the judgment. Anything to ensure that we are not subject to the same rules as everybody else. No justifications for this are ever offered. None are thought to be needed. The right to rule is assumed.