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Sovereign Immunity, War Crimes, and Compensation to 9/11 Families

Sovereign immunity is a doctrine in international law which exempts nations from responsibility for their aggressive actions. It sanctions war crimes under the fiction that governments are not behind the doings of their citizens—and by implication, government itself. Thus, e.g., the My Lai Massacre could not be charged against the United States Government (USG), but only individuals like Lt. Calley. There is no recourse for the families of murdered victims against the country responsible, say, for armed drone targeted assassination, intervention, regime change, paramilitary operations, saturation bombing, waterboarding, etc. International law, especially on sovereign immunity, is written by the strong, the conqueror, the hegemonic, not the preyed on or the product of abstract moral reasoning.

Power becomes its own morality. One can see from the foregoing that the US would be skittish, not to say downright fearful, about overturning the principle of sovereign immunity. I am hardly the first to suggest that America is the leading purveyor of violence in the world today. It is not surprising that the US passed legislation in 1976 (although no-one speaks of it, American-commissioned atrocities in Vietnam may have had something to do with it) which provided exemption—on grounds of sovereign immunity—from legal suits for nations faced with legal actions for crimes committed in America. The principle had to be nailed down, if reciprocal privileges of immunity from lawsuits for American crimes abroad were to be respected. Again, international law, the big tent for hiding crimes instead of protecting the innocent.

But then we have 9/11, perhaps the most emotional-political-ideological symbol influencing US policymaking in recent times. Compensation must be provided the families of the victims, the 1976 legislation notwithstanding. Accordingly, Congress, beginning in last May, sought to alter the existing law, and did so by lopsided majorities—from the standpoint of national patriotism a no-brainer. Except for one thing: the 1976 legislation, now abrogated, had been seen as the ultimate barrier to punishment for American war crimes, and messing with the new legislation (i.e. a presidential veto) would leave the USG vulnerable to legal action.

Obama earlier promised to veto the legislation after it had passed both houses of Congress, a promise to be carried out tomorrow (September 23). At first sight, this is mind-boggling, the Supreme American Patriot placing himself in opposition to the 9/11 families. What goes on? Seemingly the Master of Expediency is losing his marbles. Not quite, and rather, a new page in Obama’s villainy is opened. He will not give the real reasons for his decision to veto the Justice Against Sponsors of Terrorism Act, pleading instead vague national security considerations, opening America to frivolous suits when we are merely acting in the nation’s interest, also, unnecessarily antagonizing a valued ally, Saudi Arabia, which has repeatedly denied all involvement in 9/11.

Here the Administration to make its case has just released (Tuesday) a letter to Congress—actually issued by the Saudis—claiming the high moral ground for sovereign immunity: “The safety and security of our diplomats, intelligence officers, military and other senior officials of the U.S. government, and their ability to perform their duties without foreign influence or intervention, would be seriously imperiled by a process intent on denying them the international immunities that have been accepted by all civilized nations since the 16th century and earlier.”

I liked that last little flourish/claim. It only gets better, the letter having been signed by William Cohen, Michael Mukasey, Steven Hadley, and Richard Clarke, hardly your American Friends Service Committee members seeking world peace. Nary a word in explanation (nor would any be forthcoming) on the main purpose of the veto—the secondary one being closeness to Saudi Arabia, as witness the Senate on Wednesday beating back the attempt to prevent Obama’s $1.5B arms sale to the Saudis. What have we then? White House lawyers obliquely give the answer when they say that the Act compromises the principle of sovereign immunity, which, central to international law, as I noted, immunizes state actors from legal prosecution for their acts.

Cutting to the chase, I submit Obama risks public opprobrium because he wants to save the United States from liability for the commission of war crimes. Compensation can be arranged some other way, if at all. But continued targeted assassination, more and further dangerous confrontation with Russia and China, counterrevolution, in sum, the whole American posture vis-à-vis the World Community, would be jeopardized by the Justice Against Sponsors of Terrorism Act. It had to be vetoed, if America was to be free to continue on its path of unilateral global hegemony. That it is already being thwarted by the rise and reality of a multipolar structure of power only gives added encouragement to toughen it out on the question of war crimes and sovereign immunity.

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Norman Pollack Ph.D. Harvard, Guggenheim Fellow, early writings on American Populism as a radical movement, prof., activist.. His interests are social theory and the structural analysis of capitalism and fascism. He can be reached at pollackn@msu.edu.

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