The pandemic is something that is referred to in law as an act of God. War is an act of man.
News of a US intelligence report alleging Chinese fabrications about the coronavirus outbreak came in, coincidentally, the very week that marked the 17th anniversary of the American seizure of Baghdad International Airport.
The intelligence report on China and the pandemic was handed to the White House at the end of March. It was on April 4, 2003 that the United States took control of Baghdad airport, just a few miles from the centre of the Iraqi capital. The timing of the US report is unfortunate.
The allegation that China intentionally concealed the extent of the domestic outbreak is clearly meant to buttress attempts by American politicians to make a moral case that Beijing pay damages. What it actually does is revive memories of the false prospectus for the US-led invasion of Iraq.
The United States has not been held to account for its false public justification for invading a sovereign nation without provocation. It has not acknowledged moral responsibility for the millions of casualties inflicted by the war, the bloody sectarian civil strife that was subsequently triggered in Iraq and the destruction of basic infrastructure in the country. It has not compensated the Iraqi people, although it’s hard to even begin to tally the cost of decades of bloodshed, chaos and tragedy.
According to a 2019 estimate, the death toll from 16 years of US military intervention in Iraq stands at 2.4 million. How do you put a price on that?
In any case, if China were to be sued over the coronavirus pandemic, then the US should be sued over Iraq — and the case against the United States would be the stronger.
The Chinese government is protected by the doctrine of sovereign immunity and its obfuscations in the early days of the coronavirus outbreak do not constitute sufficient grounds for a waiver. But the legal precedent set by the post-Second World War Nuremberg trials is strong. During the tribunals, prosecutors successfully argued that the Nazi leadership was liable for crimes of aggression and crimes against humanity by invading sovereign nations without provocation.
In 2004, then UN Secretary-General Kofi Annan called the Iraq invasion “illegal.” In 2009, Benjamin Ferencz, one of the American prosecutors at Nuremberg, wrote that “a good argument could be made that the US invasion of Iraq was unlawful.” In 2010, the Dutch parliament called it a breach of international law. It was the first independent legal assessment of the decision to invade.
All of the above is worth remembering at this point of time. US President Donald Trump, his administration and members of his Republican Party continue to refer to Covid-19 as the “Chinese virus” or the “Wuhan virus.” They have been dropping dark hints about the reparations due from China. A Republican congresswoman and a Republican senator have introduced resolutions in the House and Senate respectively, calling for an international investigation into the Chinese Communist Party’s alleged cover-up of the early spread of the coronavirus and for China to pay back all affected nations.
But as Yale law Professor Stephen Carter recently noted, sovereign immunity is a “broad” doctrine, an act of reciprocity. The US 1976 Foreign Sovereign Immunities Act (FSIA) maintains that shared global understanding, with one US federal court saying FSIA is intended “to protect foreign sovereigns from the burdens of litigation, including the cost and aggravation of discovery.” It was only in 2016 that the United States passed the Justice Against Sponsors of Terrorism Act (JASTA), which allows US citizens to sue foreign governments for terrorist acts such as 9/11 on American soil. President Barack Obama had vetoed it, warning that JASTA could expose American companies, troops and officials to lawsuits in other countries but Congress overrode him.
Obama’s warning assumes new importance now that the US administration seems keen to blame and shame China for the high costs of its behaviour. It’s entirely likely that this will renew the focus on the illegality of the Iraq invasion and its terrible toll. In December 2016, the US Ninth Circuit Federal Court of Appeals heard the only case ever filed in the United States that questioned the legality of the Iraq war. The court affirmed immunity for the executive branch, no matter the scale of the crime.
But then on October 9, Trump tweeted that the United States “went to war under a false & now disproven premise” and that “millions of people have died on the other side.” Trump’s fulminations were the first such admission by a sitting US president. The tweet could be seen as official acceptance by the US government that the Iraq war was wrong and resulted in mass murder. It may not necessarily result in a viable prosecution of the US government. However, it does highlight a key difference between America’s war in Iraq and China’s actions after the coronavirus outbreak. The pandemic is something that is referred to in law as an act of God. War is an act of man.
Originally published in The Arab Weekly