We Could Sue Beijing, But Careful America What You Wish For
The U.S. could be become a tasty target for feasting lawyers around the globe.
America possesses a devastating weapon more fearsome than nukes: lawyers. Attorneys are lining up to sue the People’s Republic of China for having mishandled the COVID-19 virus and mislead the rest of the world as to the danger.
Beijing’s negligence and deceit cost other peoples greatly. But the Trump administration should be careful what it wishes for. What if lawyers around the world sued the U.S. for the carnage and casualties caused by its misbehavior? The damages would be incalculable.
The idea of holding the PRC government liable for the costs born by the rest of us from the coronavirus pandemic is obviously attractive. Proposals to unleash the lawyers have even been picked up by Washington’s right-wing chattering class, including Marc Thiessen, who penned speeches for President George W. Bush and Donald Rumsfeld—the chief actors in the “Mission Accomplished” debacle a few years back.
Thiessen explained: “No one can blame Beijing for a viral outbreak beyond its control. But the Chinese communist regime should be blamed—and held legally liable—for intentionally lying to the world about the danger of the virus, and proactively impeding a global response that might have prevented a worldwide contagion.” The obvious question is how?
Multiple private lawsuits already have been filed against the PRC. They will go nowhere because of the doctrine of sovereign immunity: governments typically must agree to be sued. The denizens of Zhongnanhai are unlikely to show up in American trial courts to answer for their crimes.
Rep. Jim Banks (R-Ind.) urged the State and Justice Departments to file suit against the PRC before the United Nations International Court of Justice. The London-based Henry Jackson Society issued a report advocating that “the world … take legal action against the PRC for the breaches of international law and their consequences.” HJS offered a long list of potential legal forums.
Alas, while filing before international tribunals might offer emotional satisfaction, and perhaps even serve an educative purpose, they typically have no means of enforcement. And attempting to apply commercial treaties, also suggested by HJS, would stretch them past the breaking point. International litigation is another dead-end.
However, Thiessen suggested a simple fix. Remember the problem of sovereign immunity? No worries. Congress should just end China’s legal protection and enable private lawsuits. Then Chinese assets worldwide could be seized to satisfy the resulting judgments (one early U.S. case is demanding a modest $20 trillion). Other proposals with similar results would have Washington sua sponte seize Chinese assets or repudiate U.S. debt held by Beijing.
Any of these would be the equivalent of declaring global economic war. No one should imagine the PRC supinely allowing Americans to grab Chinese property and cash around the globe. “Sure, take our money,” responds a chastened President Xi Jinping, who dons a hairshirt and begs for forgiveness as U.S. litigants gain recompense.
Imagine implementing the Thiessen Plan. The Chinese courts, subordinate to the Chinese Communist Party, would immediately open their doors for all sorts of imagined offenses. Lawsuits already have been filed there charging America with creating and spreading COVID-19; they could result in their own $20 trillion verdicts. U.S. investments in the PRC would be first to be taken, with Chinese assiduously scouring foreign lands for American assets. Friends and foes alike would be caught between the world’s two greatest economies and traders. What could possibly go wrong?
The bigger problem, however, would be the lightbulb going off in other countries. If Americans can sue foreigners for the devastation wreaked by the latter’s actions, why can’t foreigners sue Washington for the destruction that it has caused—and continues to cause—around the world? Where to begin?
Perhaps with the disastrous invasion of Iraq promoted by Thiessen’s earlier work. The relatives of thousands of American dead and the tens of thousands of U.S. wounded would be out of luck, since Congress isn’t likely to allow them to sue. However, the Iraqi parliament could recognize the financial windfall within reach and open the courtroom doors to families of the estimated 400,000 (some estimates reach a million) Iraqis killed in the sectarian conflict triggered by Bush’s disastrous misadventure. Award, say, a million dollars per. That comes to a nice round $400 billion.
Millions were driven from their homes, many of them from their country. Religious minorities proved uniquely vulnerable. Even those not killed, kidnapped, ousted, or otherwise displaced likely suffered significant economic damage from years of conflict and terrorism. Iraq’s population in 2003 was about 25.6 million. Let’s go cheap here. “Only” $20,000 each, on the theory with a freer economy and legal oil sales they should eventually make up some of the losses. That would come to $512 billion.
Added to that would be the cost of the Islamic State’s depredations. Many Iraqis suffered through a second round of violence as ISIS evolved from Al-Qaeda in Iraq, which existed only because of the invasion. There now are around 40 million Iraqis. How much are they due for their nation being ravaged anew? The second round of fighting was shorter, so give everyone another $10,000. That’s an additional $400 billion.
So, in total Iraqis are due $1.3 trillion plus change.
How much should Washington pay for having destroyed Iran’s democracy in 1953? That delivered Iranians successively into the not-so-tender mercies of the Shah and then to the Ayatollah Khomeini and his successors. How much to compensate the victims and their families? Tens of thousands were murdered, imprisoned, tortured, mistreated, and/or impoverished.
The U.S. also should pay for its support to Saddam Hussein after he invaded Iran. Some 300,000 Iranians died (estimates of Iraqi casualties range up to 240,000). The economic damage also was immense. As well as the costs imposed by the Islamic Republic on the people of Iran, which continue today. And the cost of Washington’s economic war against the Tehran government, highlighted by immiserating sanctions. Any estimate is arbitrary, but surely creative Iranian lawyers in Iranian courts could win at least a trillion dollars in damages for the Iranian people’s 67 years of suffering at Uncle Sam’s hands.
Libya is another American debacle. The Obama administration helped destroy the country, which remains at war almost a decade later. The Islamic State took advantage of the chaos to enter. At least Washington can argue that blame should be shared. After all, the Europeans were not only co-conspirators but key architects, pushing the U.S. to join in the bombing of Muammar Gaddafi’s forces. And some deaths—actually a surprisingly small percentage of the total—occurred in the fighting that preceded America’s involvement.
Estimates of total dead run up to 30,000. Cut the latter in half for a compromise number. Knock a couple thousand off for deaths before the U.S. entered. That’s 13,000. At a million dollars each the bill is $13 billion. Cut that in half, to $6.5 billion, for Washington’s share. The country’s current population is about 6.8 million. How much are they owed for a decade of chaos and conflict? Give them the same $30,000 received by Iraqis: that comes to $204 billion. Washington’s responsibility: $102 billion.
Alas, this is just the start. Bahrainis, Egyptians, and Saudis continue to suffer under U.S.-backed and -subsidized tyrannies. Generous American support for Zaire’s Mobutu Sese Seko created untold suffering that continues today in the dictatorial and war-torn Democratic Republic of Congo. Washington blundered through a complicated series of Balkan civil wars, largely ignoring Bosnian, Croatian, and Kosovar atrocities against Serbs. U.S. backing for Nicaragua’s Anastasio Somoza Debayle encouraged a revolution ultimately dominated by communists, leading to more repression and war.
Around the world Washington has interfered in elections, sponsored coups, bombed nations, intervened in civil wars, invaded countries, supported dictators, sanctioned societies, funded killers, and endorsed repression. And, shockingly, lied to, misled, and abandoned friends as well as foes for its own advantage. Imagine the accumulated damages if everyone harmed by the U.S. government sued Americans.
Of course, not everything touched by Uncle Sam turns into a debacle. The defeat of Nazi Germany and Imperial Japan in World War II were major positives for hundreds of millions of people. Alas, that was counterbalanced by earlier intervention in World War I, a conflict with no clean hands. Doing so unbalanced Europe and released the political viruses of fascism, Nazism, and communism—and led to World War II. Intervention in South Korea saved tens of millions of people from Kim Il-sung’s Dark Ages in the North. However, America’s involvement in Vietnam expanded and lengthened a hideous conflict, consuming millions of lives.
Moreover, many of Washington’s choices were not intentionally malign. Still, the U.S. routinely carelessly and callously subordinated the lives, welfare, and futures of others to advance its own interests. Americans never have proved forgiving when others treated them the same way.
Sue Beijing? Americans should be careful what they wish for. Having established the precedent, they might become the next target of lawyers around the globe. The result could prove far more costly than their worst nightmare.
Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is author of Foreign Follies: America’s New Global Empire. He also is a graduate of Stanford Law School and a member of the California and D.C. bars.