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Covert wars in the shadow of international law

by Norman Paech
In the years between the end of the Cold War in 1991 and 2022, the United States has carried out at least 251 military interventions in almost every country on earth. Going back to 1789, there were a total of 469. In all of these interventions, the United States formally declared war only 11 times.
Covert wars in the shadow of international law
by Norman Paech
[This article posted on May 08, 2023 is translated from the German on the Internet, Verdeckte Kriege im Schatten des Völkerrechts.]

A characteristic of all wars in which the U.S. and with it the countries of NATO are currently involved, whether in Africa, the Middle East or Europe, is their global significance beyond the local theater of war. In them, the claim to order the world according to one's own interests manifests itself diplomatically in circulation as a "rules-based order." This order differs not only in language but also in content from the international legal order that has been supposed to be the sole matrix of international order since its inception in the UN Charter in 1945 - including for NATO. From Norman Paech.

The resistance against this old order of dominance of the West and its unbroken claim to rule has revealed that the colonial age is not yet a thing of the past, even after the successful liberation struggles. Colonial domination has turned into post-colonial subjugation and dependence of the smaller and weaker states. Those who rebel against it are forced under the old order with the whole arsenal of imperial violence from boycotts to embargoes and blackmail to war, as in Yugoslavia, Afghanistan, Iraq, Libya or Syria. All these wars are "system wars" to restore and enforce the "rule-based order," i.e. the dominance of the old powers. The rule of international law plays a role at most in the press conferences. The loud call for international law and an international tribunal to put President Putin on trial should not obscure the fact that this is just another sanction against Russia and its president, not a fundamental return to the international law order. Trials of possible war criminals Kissinger (Vietnam), Bush, Rumsfeld, Cheney (Iraq), etc., are still pending and have no prospect of ever being made up.

In the double war of Russia against Ukraine and NATO against Russia, the systemic question becomes very clear. It is no longer a question of West versus East in the ideological conflict between capitalism and socialism, but of West versus East and South in the struggle for economic, political and military supremacy. NATO's war against Russia reaches far beyond the theater of war in Ukraine, already targeting the PRC as its next adversary and attempting to include the major states of the South, India, South Africa and Brazil, in its sanctions regime against Russia - in vain so far. The refusal of these and other states to reinforce NATO's front against Russia is a clear sign of their intention to free themselves from post-colonial dependence on their old colonial regimes. This seems to me to be the deeper meaning of the new concept of the turn of the times.

The subject of the following investigation is the gray area of interventions-not yet war, but nevertheless momentous interference in the internal affairs of states-with which the U.S. in particular attempts to secure the allegiance of states by "peaceful" means (regime change). Here, too, it turns out that the legal framework that the states have given themselves can be ignored by the old powers without consequences. Even the international courts, which are based in the West in the Netherlands for a reason, are largely powerless against the influence of the old powers.

Military interventions

In October 2022, the "Congressional Research Service" (CRS), which corresponds to the German "Scientific Services of the Bundestag," published a study entitled "Instances of Use of United States Armed Forces Abroad, 1789-2022." According to this study, in the years between the end of the Cold War in 1991 and 2022, the United States has carried out at least 251 military interventions in almost every country on earth. Going back to 1789, there were a total of 469, according to the research service's findings. In all of these interventions, the United States formally declared war only 11 times. In addition, the service acknowledges that it did not take into account covert special military operations or CIA operations. The report states:

"The list does not include covert actions or the numerous instances in which U.S. forces have been stationed abroad since World War II as occupation forces or to participate in mutual security organizations, base agreements, or routine military assistance or training activities."

For example, there is no mention of the covert CIA operation to provide military support for General Mohamed Suharto's coup beginning in October 1965. The coup resulted in the murder of over 500,000 communists and trade unionists in Indonesia. Also not mentioned is the massive military intervention in Angola against Cuban troops stationed there. Nor is there any mention of the U.S.-financed and directed Contra War in Nicaragua from 1981 - 1990, although it cost over 60,000 casualties and the U.S. was condemned by the International Court of Justice (ICJ) in The Hague in 1986 for multiple violations of international law.

The Military Intervention Project (MIP) of the Center for Strategic Studies at Tufts University comes up with even higher figures. It states:

"The U.S. has conducted more than 500 military interventions since 1776, with nearly 60% of those occurring between 1950 and 2017. Even more, more than one-third of these interventions occurred after 1999...With the end of the Cold War era, we would expect the U.S. to reduce its military interventions abroad, based on reduced threats and interests. However, these patterns show the opposite - the U.S. has increased its military deployments abroad."

The U.S. has not been held judicially accountable for any of these military interventions in violation of international law, except for its involvement in the Contra War in Nicaragua.

Both investigations have focused on interventions by military means, ignoring the political, economic, and financial interventions, which are at least as numerous. But every war has its antecedents, and every war is prepared. This preparation is not limited to the organization of one's own military force, but, especially after World War II, has in each case moved far forward into the enemy state, possibly in order to achieve the war's goal - regime change - by civilian means of intervention as well, or to prepare the field for a military strike.

Maidan - for democracy and freedom

Take as a recent example the coup against Ukrainian President Yanukovych, who fled to Russia after the massacre on the Maidan in Kiev on February 20. According to all recent evidence, this was a Western-sponsored coup, as former CIA officer Ray Mc Govern stated on YouTube back on September 21, 2014. Victoria Nuland had pulled the strings in the US State Department together with the US Ambassador to Ukraine, Geoffrey Pyatt. The U.S. billionaire Soros, who had made regime change his mission by supporting color revolutions from Belgrade to Tbilisi to Kiev, had been involved in building a protest movement long before the Maidan. Enormous funds flow to Kiev through the numerous NGOs in Ukraine, such as Open Society, Freedom House, the National Endowment for Democracy, and the British Westminster Foundation. The U.S. State Department alone has spent $65 million since 2002, primarily to support U.S. candidate Viktor Yushchenko. The head of the State Department, Victoria Nuland, even speaks of five billion U.S. dollars that have been channeled to Ukraine via the foundations for the promotion of democracy and freedom. Quite a few dollars have also been invested in building up the protest movement PORA - "It's time", which was then to play a strategic role in the Maidan demonstrations. The money is not only used to finance lecture tours, training circles, courses, trainings and seminars. Donations of materials and goods, such as equipment for the Maidan demonstrators with orange T-shirts and over 1,500 tents, are also coming into the country to enable the young people arriving from all provinces to stay in wintry Kiev. There are, after all, one and a half million who populate the Maidan and the adjacent streets on November 27, 2014 - a spectacle that would not have been possible without the massive support of the numerous foundations. In Belgrade in 1999, funded by the Freedom House Foundation, 5,000 copies of the book "From Dictatorship to Democracy. A Methodical Book on Liberation" by U.S. professor Gene Sharp of Boston's Albert Einstein Institution were distributed. DER SPIEGEL quotes from this breviary for "198 Methods of Nonviolent Action":

"My principles have nothing to do with pacifism. They are based on the analysis of power in a dictatorship and how it can be broken - namely, by citizens at all levels refusing to obey state power and its institutions."

Such means are used to prepare the ground on which colorful revolutions are then to carry out the overthrow of the old regime and its replacement by a new one devoted to the West. President Petro Poroshenko, who came to power in the coup, thanked the U.S. Congress for "U.S. solidarity" in September 2014, and not without reason.

Regime Change in Syria

The model of this often overt but mostly clandestine organization of overthrowing a government disliked by the West is covert warfare. Its operations provoke a coup, as in Ukraine in 2014, or civil war-like tensions and fighting that provide the pretext for military intervention, as in Libya in 2011 and Syria in 2014. For example, the U.S. justified its Sept. 23 bombing campaign in Syria on the grounds of counterterrorism. September on the grounds of counterterrorism, even though the terrorist attacks by radical jihadists from the Muslim Brotherhood, Al-Nusra Front, al-Qaeda, and the Islamic State in Iraq and Syria (ISIS), as well as the Free Syrian Army (FSA), were aimed at overthrowing the Assad government in Damascus and posed no threat to the United States. President Obama had neither a UN Security Council mandate nor President Assad's approval; he had only the same goal as the jihadists - to overthrow the Assad government. But the fact that this was openly illegal under international law has not affected the intervention and presence of U.S. troops in Syria to this day.

But the war did not begin with the September 2014 attack; clandestine operations were underway well before March 2011, when the first large demonstrations took place in the town of Dara, close to the border with Jordan. As U.S. journalist Seymour Hersh revealed in April 2016, there were deliberations and plans within the U.S. administration as early as 2006 to destabilize the government in Damascus and inflame religious tensions. He reported on a 2006 government dispatch that documented "that the U.S. Embassy had spent five million dollars funding dissidents." A U.S. congressional staff investigation even dated the start of the coup plot to 2003, immediately after the Iraq war, when the U.S. administration judged the government in Damascus to be too left-wing. This time, however, it was not the U.S. and its European allies who were the main sponsors; instead, Qatar and Saudi Arabia in particular sought to accelerate the overthrow of the government with money and arms supplies. The U.S. collaboration with the Gulf states, however, did not result in a division of labor of the sort that one provided money, the other weapons. Early in the clashes in Dara, weapons captured in Libya arrived in the hands of the jihadists via Turkey on unmarked NATO warplanes. "French and British special forces train Syrian rebels on the ground, and the CIA and U.S. special forces supply the rebels with intelligence data to help them evade strong formations of the Syrian army," former CIA analyst Philip Girardi reported in December 2011. Qatar participated in the covert war with a particularly valuable weapon in addition to money and weapons: the Qatar-based Al Jazeera television network fueled the clashes from the outside. The U.S. has always tried to justify itself by saying that it only supports the "moderate" rebels. But an Aug. 12, 2012, report by the Defense Intelligent Agency (DIA) states unequivocally:

"The Salafists, the Muslim Brotherhood, and al-Qaeda in Iraq are the driving forces of the insurgency in Syria... The West, the Gulf states, and Turkey support the opposition, while Russia, China, and Iran support the regime."

Clearly, one does not shy away from contradiction. Under the banner of fighting terror, the U.S. and NATO are working with the jihadists who will stop at no terror because they share the same goal of toppling Assad. They promote the terror they claim to fight.

Libya - until the assassination of Gaddafi.

Let's take Libya as a final example. Long before NATO's bombing of Libya, which began on March 19, 2011, the United States had been trying to overthrow the inconvenient Muammar Gaddafi. Since the early 1980s, he had been demonized as a "terrorist warlord" by the opinion-forming media in the United States and Britain. In July 1981, a CIA plan to overthrow and possibly kill Gaddafi was leaked to the press. In 1982, away from the major media, Hissène Habré was able to overthrow the government of Goukouni Wedeye with the support of the CIA and Israeli troops. Human Rights Watch reported:

"Under President Reagan, the U.S., through secret paramilitary support from the CIA, helped install Habré to, in the words of Secretary of State Alexander Haig, 'give Gaddafi a bloody nose.'"

An Amnesty International report reported massive military and financial support for Habré from Congress. It was directed at the secret war against Gaddafi. But the U.S. failed to achieve its goal. Several other plans failed.

Finally, on April 14-15, 1986, the U.S. Air Force bombed the capital Tripoli and Benghazi for the first time. The attack was illegal, with only the British supporting the United States. President Ronald Reagan justified it at the time as a reaction to the attack in the Berlin discotheque La Belle, but could only convince a few that it was an act of defense according to Article 51 of the UN Charter. This plan also failed and the military actions against Libya disappeared from the media. But the CIA continued to work on its plans and built up a secret army consisting of numerous Libyans who had been involved in border fighting with Chad in the 1980s. When it was rumored that Gaddafi was having chemical weapons developed, the British also became involved and, with the intelligence service MI6, founded and financed various opposition groups in Libya, including the "Libyan National Movement" in London. However, all further attacks were unsuccessful. The large oil reserves and Libya's important function for the Europeans of stopping African refugees from crossing the Mediterranean to Europe could only temporarily reconcile the U.S. and its NATO allies with Gaddafi. The latter, on the other hand, made no secret of his anti-imperialist stance. When he demanded in the UN General Assembly in 2009 that the culprits of the Iraq war be brought to justice - "It was a massacre, a genocide: more than 1.45 million people lost their lives. We will work to bring the Iraq case to the International Criminal Court (ICC), and we want to see those responsible for these mass killings brought to justice"-the old plans of the coup revived. They were to be realized in February 2011 in the turmoil of the Arab Spring, in which opposition groups built by MI6 and the CIA undoubtedly played an important role. On March 19, 2011, France and the United States began bombing Libya. Two days earlier, UN Security Council Resolution 1973 had mandated that a no-fly zone be established over Libya to protect civilians from Libyan air force attacks. By May, this mandate, as well as the Security Council mandate, had been fulfilled, but NATO forces continued their attacks until Gaddafi was killed on October 20, 2011. This was contrary to international law, as the attacks now continued without a mandate. The Security Council was silent on the matter, however, which was not surprising given its composition. The International Criminal Court in The Hague also saw no reason to investigate. However, on March 3, 2011, at the initiative of the United States, it had already opened an official investigation against Gaddafi on suspicion of crimes against humanity in his fight against the rebels.

The Covert War in International Law

If we turn to the legal assessment of these often clandestine stirrings, machinations, and interventions that can be subsumed under the term "covert war," we must first point out that international law does not recognize the term "war." There, war is defined more narrowly and precisely as "armed conflict." This means that for economic warfare or cyber warfare, the rules of international humanitarian law, as codified in the Hague and Geneva Conventions and other conventions and covenants, cannot be applied. Other rules must be found and agreed upon for these non-armed conflicts. Similar strict and binding rules as in international humanitarian law are not found here. As a result, the boundaries to illegality are pushed far back in these "non-armed "conflicts." While the UN Charter lists in Article 33 various alternatives to enable disputing parties to settle their disputes peacefully, "by negotiation, investigation, mediation, conciliation, arbitration, judicial decision, recourse to regional institutions or arrangements," it does not provide procedures by which this "peaceful settlement" could be enforced.

Even the recurring attempts to legally contain these various forms of "covert warfare" have so far not gone beyond UN General Assembly resolutions. The starting point for all legal considerations is Article 2(7) of the UN Charter, which prohibits the United Nations from "intervening in matters which, by their nature, belong to the internal competence of a State." However, because this prohibition, which applies only to the United Nations Organization, is of such fundamental importance to the protection of state independence and sovereignty, it is now also generally regarded as a mandatory prohibition between states. The Basic Law is silent on more specifics about the concretization, implementation, or consequences of this prohibition. The 1963 Charter of the Organization of African States (OAS) is more specific, based on its own historical experience. In Art. 3, it names, among other things, three principles that are binding:

"1. the sovereign equality of all States; 2. non-interference in the internal affairs of States; 3. respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence; 4. peaceful settlement of disputes through negotiation, mediation, reconciliation and arbitration."

But even these principles still leave enough room for a wide variety of interpretations, so that in the same year a committee of the General Assembly set to work to develop seven authoritative "Principles of International Law for Friendly Relations and Cooperation among States." The prohibition of intervention played an important role in this process and was unanimously adopted as early as 1965 in a General Assembly resolution "Declaration of the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty" as Resolution 2131 (XX). Five years later, the prohibition was incorporated largely verbatim into the famous "Friendly Relations" Resolution 2625 (XXV) and voted by consensus. On the prohibition of intervention and interference, it states:

"No State or group of States shall have the right to interfere, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or threats against the legal personality of a State or against its political, economic and cultural components are contrary to international law.

No State may use, or encourage the use of, economic, political or any other measures to use coercion against another State with the intention of obtaining from it a renunciation of the exercise of sovereign rights or of obtaining from it advantages of any kind. Similarly, no State shall organize, support, foment, finance, incite, or condone subversive, terrorist, or armed activities aimed at the violent overthrow of the regime of another State, or intervene in civil strife in another State."

Although the General Assembly has repeatedly referred to the Declaration of Principles in its resolutions, it has not become customary international law. However, in its famous judgment of June 27, 1986, in the dispute between Nicaragua and the United States, the International Court of Justice (ICJ) recognized individual parts of the ban on intervention as legally binding. Among other things, its judgment states:

"A prohibited intervention must... be one bearing matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the form of military action, or in the indirect form of support for subversive or terrorist armed activities within other States."

"A prohibited intervention must...concern matters on which each State is free to decide in accordance with the principle of State sovereignty. These include the choice of political, economic, social, and cultural systems and the formulation of foreign policy. An intervention is unlawful if it uses coercive means in these decisions, which must remain free. The element of coercion that defines the prohibited intervention and even constitutes its essence is particularly evident in the case of an intervention that uses force, either in the form of military action or in the indirect form of support for subversive or terrorist armed activities in other states."

The resolution does not provide clearer criteria for distinguishing between prohibited and permitted intervention. Nor have they yet been developed in state practice or scholarship. However, indications can be gleaned from the ICJ's 1986 Nicaragua ruling. In this judgment, it expressly qualified the support of the Contras operating in Nicaragua by the United States as unlawful. Even the distribution of a manual on "Psychological Operations in Guerilla Warfare" to the Contras was considered by the court to be a violation of general principles of human rights and a breach of the ban on intervention. Thus, support for terrorists need not always employ military means to be prohibited. This also applies to the pressure on states to respect elementary human rights, which is frequently applied today. It is unobjectionable only insofar as it does not resort to coercion. Thus, political and economic sanctions, embargoes and boycotts are generally not covered by the prohibition of intervention - such as the sanctions against the PRC and Russia. However, as soon as they exceed a certain level of intensity, be it in duration or impact on the population, such as the sanctions against Iraq or Iran that caused many casualties or the U.S. embargo against Cuba that has now lasted over 60 years, they violate the ban. The annual votes in the UN against the U.S. economic boycott are not only an expression of political disapproval of the U.S. practice, but reflect its qualification as illegal. Notably, moreover, sanctions are prohibited if their goal is regime change.

In the absence of clear criteria, drawing the line between prohibited and permitted remains problematic and uncertain in each individual case. For example, U.S. Secretary of State Albright's assessment of the effects of the U.S. boycott of Iraq differed from that of the two special representatives of the UN Secretary General, Dennis Halliday and Hans von Sponeck, who resigned from their posts because they considered the effects of the boycott to be disproportionate and contrary to human rights. Similarly, years of U.S. interference in Ukraine's political development under the rubric of "promoting democracy," with the purposeful building of an opposition and lavish financial and ideological resources, will likely have been judged differently in the government of the eventually ousted Yanukovych than it is now in the Selensky government. If one sees in the activities the preparation of a regime change, which is not far-fetched, then one must classify them as illegal interference in the affairs of another state, however welcome the result may be to the successors of the overthrown government.

If we summarize, the interventions in the political processes in all three countries, Ukraine, Syria, and Libya, different as they were, proved to be serious, unlawful interventions in the affairs of a foreign state. There was no justification whatsoever for the activities, unless one accepts the Selenski government's subsequent acceptance of U.S. activities as justification. The UN Special Rapporteur on the negative consequences of unilateral coercion on the enjoyment of human rights, Alena Douhan, confessed in an interview "that approximately 98% of the sanctions adopted today violate the international obligations of States..." and emphasized "that these sanctions, most of which are imposed in the name of human rights, democracy and the rule of law, undermine precisely these principles, values and norms." It said it had "clearly established" that the use of unilateral coercive measures "impairs the right to development and prevents the achievement of each and every sustainable development goal." (Xinhua v. July 13, 2021,, see also Marc Bossuet, The Adverse consequences of economic sanctions on the enjoyment of human rights, Economic and Social Council, E/CN.4/Sub.2/2000/33, June 21, 2000).

However, a finding of illegality does not mean that the sanctions are suitable for prosecution by legal means before an international court. For these follow not only legal but above all political considerations. Since March 2022, the chief prosecutor of the International Criminal Court, Karim Khan, has initiated preliminary investigations in Ukraine to gather evidence of possible war crimes, primarily Russian. In Koblenz, there has been a high-profile trial of two Syrians for state torture, which ended with sentences of life imprisonment and four and a half years imprisonment, respectively, for crimes against humanity. Investigations launched by the ICC in March 2021 into possible war crimes in the Israel-Palestine conflict, on the other hand, have made no progress. The current balance of power behind the ICC, which is not a UN court but is independently based on an international treaty with 124 states, is such that no case has yet been opened against a NATO member state. In the cases in which former chief prosecutor Fatou Bensouda attempted to do so - against the U.S. and the U.K. for allegations of torture in Afghanistan and Iraq - investigations were dropped after massive interventions in some cases. Thus, the summary remains ambivalent. It is true that, after decades of negotiations, the states developed a code of international criminal norms in the Rome Statute of 1998, which corresponds to the current awareness of injustice and punishment, in order to hold criminals accountable up to the highest state offices. However, the old colonial divisions of the world continue to operate even after formal liberation from colonial violence. Thus, the old colonial powers will continue to be able to evade the norms of punishment that they themselves have developed. Therefore, even subsuming the most diverse forms of covert warfare under the criminal norms of the Rome Statute will not, at this time, allow for a trial before the International Court of Justice.

I thank Joachim Guillard for valuable comments.

Source: The Argument 340/2023, pp, 182 - 191.
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