In the bad old days, it was presumed that countries had agents running around who did bad things. You know, the James Bond sort of stuff. Killing people was part of that, but not the only part. One had to be prepared to “do what was needed” to protect national interests. And that might not be limited to individual agents. Covert military operations too had their proponents, among them JFK.
Was this actually the case? I am not an expert, but I assume that it was, especially during the Second World War, and the Cold War that followed. The OSS, Gestapo, NKVD, CIA, KGB, MI6, FBI and so on fought their battles without the knowledge of , let alone consent of the general public.
The extreme bloody mindedness of the Nazis in using such nasty tactics (mainly those terrible camps) was one of the motivations for creating the United Nations. The hope was that if the most powerful countries generally adhered to UN norms, they might become more civilized. Sadly, that has not happened. The threat of mutual nuclear annihilation has deterred massive wars, but not proxy wars, and not other types of nasty behavior. The UN is not useless, but it is not a leading force for global change either. Nations and transnational corporations (TNC’s) are not constrained to avoid moderate forms of nastiness if it is in their interests. Yes, TNC’s can be nasty and don’t like the UN either. They became happier when the UN Centre for Transnational Corporations was disbanded in 1993. To be more precise, in classic UN fashion, its budget was transferred, while its operations were curtailed.
Over the decades, there were attempts, at least in the west, to reign in the worst abuses of covert operations. I am thinking of the Church Committee as an example. But during the Cold War, those attempts generally ran up against the perceived harsh reality that one could not trust the Soviet Union or China or other nasty actors to do the same. As I recall, it was like bad weather. One had to live with it and hope it didn’t get too far out of hand.
But then the Cold War ended. The Soviet Union collapsed. And everyone thought that we were entering a new era. Exporting the “rule of law” to the former Soviet Union was supposed to fix things. In short, the results were at best mixed. When it comes to commerce, legal institutions have facilitated more transactions than ever. But one cannot say that the era is defined by the rule of law. To the contrary, power games continue, as do nasty ways of advancing powerful interests – all basically ok as long as they don’t take us all too close to nuclear war.
The recent poisoning of a double agent in the UK by a Russian nerve agent shows us that Mr. Putin is still playing this game with gusto. If anything, he has upped the ante. He wants everyone to know that he did it. In a sense, he is shouting out “Up yours human rights lawyers!”
One’s first reaction is to think whether he is more confident with Donald Trump in the White House. That may be so, but Putin’s disdain for and overt use of assassination predates Trump. You might recall that Litvinenko was murdered in similar fashion in London back in 2006.
And of course, Putin’s disdain should be put in context. We also have the seemingly endless proxy wars in Afghanistan and Iraq and Syria. Oops! And let’s not forget Ukraine. No one really understands the ultimate legalities of these conflicts, let alone how to end them. Meanwhile, everyone understands who suffers the most – civilians caught up in the mind numbing violence. And I do not mean to exclude other places where rogue actors perpetrate outrageous crimes against peoples, while pretending to be upstanding adherents of constitutionally based legal regimes. And of course, there are the shadowy bandit like groups who behead people, kidnap little girls, etc. in the name of various alleged causes that can be difficult to fathom. This is not the path towards more rule of law and less coercion for aggrandizing power.
So where is this leading us? Long ago, one might have argued with a straight face that rigorous enforcement of human rights norms would turn the tide, and civilize the “bad actors”. And one might have hoped that global standards for the “rule of law” would emerge. Does anyone still think that way? I do not propose that we junk these norms nor the institutions that attempt to enforce them. I do suggest that we consider that we have no legal tools in our legal toolbox to fix this problem. We could create such tools if we were of a mind to do so. But at this stage, it appears that we are not of a mind to do so.
Sadly, that means that we will likely muddle forward as we are now. Double agents and vulnerable groups of people beware!