Iran Sanctions, Nuremberg Tribunals, and International Law

The United States has declared that any attempt by any power to hinder US access to essential resources will be considered an act of aggression liable to military retaliation.

Thus if Iran were hypothetically to try to shut down the Strait of Hormuz, a major route for transporting oil, the US says it may attack with its many gunships posted in the Persian Gulf.

Similarly, the US has declared that anyone using cyberattacks in an attempt to disable State or industrial infrastructure will be considered a war aggressor and legitimate target for US military attack. The Times reported in May 2011 that

The Pentagon … plans to issue a new strategy soon declaring that a computer attack from a foreign nation can be considered an act of war that may result in a military response. … The new military strategy … makes explicit that a cyberattack could be considered equivalent to a more traditional act of war.

The White House’s official declaration made clear that “When warranted, the United States will respond to hostile acts in cyberspace as we would any other threat to our country.”

It is difficult, however, to find any consistency in US policy on these points. If cyberwarfare is equivalent to a conventional act of war, why has the US declared a cyber-war on Iran?

The US has now admitted to running an extensive cyberwar for several years, one that has critically damaged major  infrastructure, as the Times reported in June 2012:

From his first months in office, President Obama secretly ordered increasingly sophisticated attacks on the computer systems that run Iran’s main nuclear enrichment facilities, significantly expanding America’s first sustained use of cyberweapons, according to participants in the program. … The last of that series of attacks … temporarily took out nearly 1,000 of the … centrifuges.

The Times notes as well that “It appears to be the first time the United States has repeatedly used cyberweapons to cripple another country’s infrastructure, achieving, with computer code, what until then could be accomplished only by bombing.”

Thus, in the logic of the Times, the US has committed an act that is the functional equivalent of bombing, which itself is indisputably an act of war. One is left to wonder at the failure of the Times to print another headline: “US commits act of war on Iran,” as FAIR pointed out.

It is difficult to understand by what logic US policy can be seen as consistent, when the extent of its attacks on the infrastructure of other nations has been revealed.

Or perhaps it is a double standard: if you do it, it’s a crime; if we do it, since we’re stronger than you, it’s not a crime?
International Law
In the aftermath of WWII, the US and other major world powers were quite happy to form a global treaty that would criminalize acts of aggression by States.

The idea was to never have another Hitler nor another world war. If all acts of aggression were declared illegal, and if all the countries under the truce (the UN countries) were bound to halt any aggressor, than world war would be avoided. Any rogue state would face the united opposition of all of the world powers.

In fact, it was the United States representative at the Nuremberg Tribunal, Justice Jackson, who most eloquently evoked the principles of international law, then seen in such a positive light, pointing out that justice was making real progress in the world when states could form a global organization to prevent major world crimes from occurring by promising punishment for any aggressor state.

The major pronouncement of international law at the time, codified in the Geneva Accords, was that only defensive war was legally permissible.

If someone is attacking you, you have the right to defend yourself. Any act of aggressive war, however, is patently illegal and unjust. Only the UN would have the right to legitimate warfare, thus preventing the kinds of escalation that had caused the destruction of much of the globe during WWII.

The US, at the time, was one of the loudest voices proclaiming these principles. In the words of Justice Jackson, citing the Geneva Protocol, “a war of aggression constitutes an international crime” and a “crime against the human species.” Not to respect the rule of law, or to fail to strengthen it, is to regress toward uncivilized humanity.

The position taken at the time was that “whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or altering those conditions.”

In other words, like teachers talking to schoolyard belligerents, we shall act like civilized humans, not use violence to get our way or impose ourselves, and instead rely on diplomatic means and world bodies.

But as Justice Jackson pointed out, a principle once stated operates in a mode of universality: it applies to all parties, not just to some, but not to others. Either something is okay, or it is not okay. To say that it is okay for me, but not for you, is the very definition of hypocrisy and moral vacuousness.

At the Nuremberg Tribunal, Justice Jackson declared: “let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must, condemn aggression by any other nations, including those which sit now in judgment.” In other words, it is only when law is more important, and enforceable, than the will of whoever happens to be the most powerful one on the block, that civilization will have progressed.

According to Justice Jackson, “The real complaining party at your bar is Civilization. … It points to the dreadful sequence of aggressions and crimes … it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to the greater potentialities in the days to come.”

Moreover, it was a given, too obvious to even argue the point, that “to start or wage an aggressive war has the moral qualities of the worst of crimes.” The doctrine of a “just war” in defense of aggression is plainly “intolerable for an age that called itself civilized,” and offended “plain people with their earthy common sense” who “revolted at such fictions and legalisms so contrary to ethical principles.”

Justice Jackson pointed out that if an appeal to justice was to mean anything at all, it would mean applying the same principles to ourselves as we applied to Hitler. “We must never forget that the record on which we judge these defendants [the Nazis] today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” In other words, a crime is a crime, no matter who commits it.
In light of this, one wonders what to make of the fact that the US declares that cyber-attack is equivalent to an act of war, and then perpetrates major cyber-attacks upon Iran. Or that the US declares any sanctioning of essential goods to be an act of war, and then imposes such sanctions upon other countries? If X represents a given action, then if X is a crime when someone else does it, it should also be a crime when we do it.

Or is the operable principle an even more uncivilized one: that X only applies to your actions, but not mine; that when you do it it’s a crime, but when I do it, it’s legitimate?

Sanctions on Iran
In today’s Times, we learn of the heavy civilian toll of the sanctions the US has imposed on Iran (who has committed no crime at all, since developing civilian nuclear technology is a legal right of all states who have signed the Non-Proliferation Treaty).

In one example, the US is keeping anti-cancer medication from the Iranian population. A 26 year-old engineer, Ali, has to watch his mother suffer from breast cancer treatment.

“At home his mother waited [while Ali tried to track down a dose of the anti-cancer drug], bald and frail after chemotherapy for her breast cancer, but Herceptin had disappeared from pharmacies and hospitals in the capital … like many other … medicines … as a result of the American-led sanctions” on Iran.

The sanctions are “so effective that even medicines and other critical supplies that are exempted from the sanctions for humanitarian reasons are no longer exported to” Iran. The result is that “the trade measures have led to widespread shortfalls of imported goods.”

The consequence is that “every day patients and their relatives line up at special pharmacies in Tehran, where those suffering from cancer, hemophilia, thalassemia, kidney problems and other diseases are increasingly told the foreign-made medicines they need are no longer available.”

The point of the sanctions is to coerce Iran into stopping its civilian uranium enrichment program, since the US fears that even a civilian nuclear program will develop enough nuclear technology to make a nuclear weapon too closely within reach.

But instead of using international instruments and gaining the support of the international community, the US is trying to impose its will unilaterally, even talking of waging a war of aggression against Iran if it does not comply.

As Ali, the engineer whose mother has cancer, pointed out, “my mom, us, other patients, we are all caught in the middle of this political battle …. We don’t have any influence on nuclear policies. We are victims.”

Is it fair to punish innocent civilians for the actions of their leaders? “In addition to shortages of medicines,” noted a Charity Foundation worker in Tehran, hospital equipment such as dialysis machines “were breaking down from a lack of spare parts.” It is worth taking a moment to decide what actions are just in this case and what position the US ought to be taking.

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