Boyle, Francis A., Undated

International Lawlessness
in the Caribbean Basin

Francis A. Boyle

1. The Inter-American System of International Law and Politics.

n April 12, 1984, U.S. Ambassador to the United Nations Jeane

Kirkpatrick delivered a totally appalling speech before the 78th annual

convention of the American Society of International Law. She
attempted to justify the Reagan administration’s twin decisions to mine the
harbors of Nicaragua and to withdraw from the compulsory jurisdiction of the
International Court of Justice in regard to disputes concerning Central
America for a period of two years. These decisions were made in order to
avoid Nicaragua’s suit against the United States over this and numerous other
instances of violent and illegal conduct perpetrated upon it.' The gist of
Kirkpatrick’s argument was that since the adversaries of the United States
oftentimes engage in behavior that is completely lawless, thoroughly
reprehensible, and occasionally barbaric, the U.S. government has both the
right and the duty to do the exact same thing. Nothing could or should be fur-
ther from the truth. Yet Kirkpatrick’s rectificatory attitude toward interna-
tional law is simply characteristic of the misguided approach the Reagan
administration has taken toward world politics from the moment of its incep-
tion in 1981.

It is a serious mistake for U.S. government decision-makers to operate on

the hard-nosed ‘‘realist’’ premise that the international legal order is a per-

fectly symmetrical system in which a violation of international law by a sup-
posed U.S. adversary should necessarily result in the reciprocal counterviola-
tion of international law by the United States government, especially when the
dispute involves minor powers such as Nicaragua and Cuba. Such a rec-
tificatory approach to international law and politics is essentially based upon
the misleading assumption that there exists a perfect symmetry of international
legal rights and duties between equal, independent, and sovereign states.

FRANCIS BOYLE is a Professor of Law at the University of Illinois College of Law, Cham-

Paign, Illinois 61820. He received his A.B. from the University of Chicago, and his A.M.,
J.D.mcl, and Ph.D. from Harvard University.

Copyright ©1984 by Francis A. Boyle. All rights reserved.

CRIME AND SOCIAL JUSTICE No. 21-22 37

38 BOYLE

Whatever the merits of recognizing this legal fiction for the purpose of main-
taining international peace and security, it obscures the fact that all states do
not benefit equally from the rules of international law. The United States
government has the very most to lose in the event its active Participation in
a reciprocal eycle of violations and counterviolations of international law
severely undermines the post-World War II international legal order embodied
in the United Nations Charter.

Nevertheless, whatever position one might take concerning the wisdom of
adopting this insight for application to the conduct of U.S. foreign policy
around the world, such a rectificatory approach to international law and
politics possesses absolutely no validity for application by the Reagan admin-
istration to the states of the Western Hemisphere, most of which are members
of the Organization of American States (OAS). In this region of the world, the
United States government for the past century has taken the pioneer role in the
development of a distinctively inter-American system of international
political, legal, and economic relations that was purposely designed to be
superior to the principles of interaction governing relations among non-
American states, or between American states and non-American states. This
longstanding objective of U.S. foreign policy commenced with Secretary of
State James Blaine’s 1881 call for the convocation of the First International
American Conference at Washington, D.C., that eventually met in 1889, and
culminated almost six decades later with the Ninth International American
Conference held at Bogota in 1948, which adopted the OAS Charter.

To be sure, the creation of a viable and discrete inter-American system was
intended to advance the United States government’s perceived vital national
security interest in getting and keeping the European mother countries out of
the affairs of the Western Hemisphere for good. But at the same time this
distinctively inter-American system of international relations was originally
conceived to be essentially different from, if not antithetical to, the pre-U.N.-
Charter European system of public international law and politics, which was
irremediably grounded in monarchism, the balance of power, spheres of
influence, war, conquest, imperialism, and the threat and use of force. By con-
trast, the inter-American system was to operate upon the principles of
sovereign equality, state independence, noninterventionism, the peaceful set-
tlement of international disputes, international law and organizations, inter-
national arbitration and adjudication, mutual cooperation, and a fundamental
commitment to democracy as the ideal form of government.

These philosophical bonds between sister American republics found their
common origin in the intellectual ferment of the European Enlightenment and
were tempered by the shared experience of revolutions for independence
against the Old World mother countries. This similar heritage created a pro-
found awareness among all states in the inter-American region that they
possessed a joint and several interest in the advancement of superior rules for
international behavior, applicable to their mutual relations that at some time
in the not-too-distant future could hopefully be expanded to include relations

a ee sss eee SSS eee oe a a alee

Lawlessness in the Caribbean 39

between all states in the international community. For these reasons, it was
thought possible to create a system of international law and politics in the
Western Hemisphere that was governed by a set of international legal rules that
were more exacting, humane, enlightened, liberal, and moral than those cur-
rently in operation between the states of the Old World, especially when it
came to threat and use of transnational force, and notwithstanding the fact that

American states might have to continue to adhere to such regressive and
bankrupt rules in their relations with non-American states.

2. The Reagan Administration’s Reversion
to the Roosevelt Corollary to the Monroe Doctrine

Hence it is both fallacious and dangerous for the Reagan administration to
argue that supposed Nicaraguan and Cuban violations of international law in
the Western Hemisphere or in Africa either can or should justify U.S. counter-
violations of international law in Central America or elsewhere. Because of
its general ignorance of history, its pervasive arrogance of power, and its
elemental disrespect for both domestic and international law, the Reagan
administration has soundly repudiated the entire history of progressive
development in the conduct of U.S. foreign policy towards the states of the
Western Hemisphere, which fostered the growth of the distinctively inter-
American system of international law and politics during the past century.
Instead, what the world witnesses today are the violent and destabilizing con-
sequences of Reagan’s publicly touted reversion to the so-called Roosevelt
Corollary to the Monroe Doctrine as the nucleus of U.S. foreign policy
decision-making towards Central America and the Caribbean Basin.

As initially stated by President James Monroe in his message to Congress
of December 1, 1823, the Monroe Doctrine proclaimed that the American
continents were no longer considered by the United States government to be
appropriate subjects for future colonization by any European powers; that the
countries of Europe must not seek to extend their political systems to the
Western Hemisphere; that the United States would not interfere in the affairs
of any current European colony or dependency in the Western Hemisphere;
that the United States would remain neutral in the war between Spain and the
newly independent governments of South America, but not to the point of per-
mitting a re-imposition of Spanish rule; and finally, that the United States
would continue to obey the dogma of Washington's Farewell Address by
preserving its neutrality in the affairs of Europe except when its rights were
seriously jeopardized. The Polk Corollary to the Monroe Doctrine subse-
quently created an additional prohibition that a European power could not
acquire territory in the Western Hemisphere by means of cession from another
European power.

From a Latin American perspective, as originally defined the Monroe Doc-
trine was not theoretically objectionable, since it was well understood that this
policy position taken by the United States government was in part responsible
for the ability of Latin American states to achieve and maintain independence

40 BOYLE

from their European mother countries. The real problem arose from the so-
called Roosevelt Corollary to the Monroe Doctrine, announced by President
Theodore Roosevelt in his annual message to Congress on December 6, 1904.2
Although phrased in general terms to apply to any international delict commit-
ted by a Western Hemispheric state, the essence of this precept meant that the
Unites States government would exercise an alleged right of pre-emptive inter-
vention into the domestic affairs of Central American and Caribbean countries
delinquent in the payment of their public debts to private creditors in European
states. The underlying rationale of the Roosevelt Corollary was that in order
to prevent military intervention by European creditor states to collect on their
nationals’ debts in the Western Hemisphere, and thus to forestall potential
breaches of the Monroe Doctrine, the United States government must arrogate
to itself a supposed right to impose upon Latin American debtor countries a
formal regime for the proper administration of their public finances and the
retirement of their public debts under direct U.S. supervision. If deemed
necessary, this objective would be accomplished by the forceful seizure and
occupation of foreign territory and customs houses by armed U.S. troops.

From a Latin American perspective, the Roosevelt Corollary was per-
ceived to announce a unilateral policy of hegemonic imperialism by the United
States government towards the states of the Western Hemisphere that was akin
to the balance of power politics and spheres of influence system then being
pursued around the world by the great powers of Europe. For example, Argen-
tine Minister of Foreign Affairs Luis M. Drago argued quite vigorously that
the United States should not assume the functions of a public debt collector
for Latin American countries on behalf of Europe, as it was then doing in the
Dominican Republic. Latin America was not a U.S. sphere of influence and
the U.S. had no right to exercise such ‘‘international police functions’’
throughout the region. The Roosevelt Corollary explicitly contradicted the
underlying principles of noninterventionism, state equality, and sovereign
independence so fundamental to preserving the integrity of the Monroe Doc-
trine that they must be applied to international relations among all Western
Hemispheric states, and especially by the United States in its dealings with
Latin American countries. Even former U.S. Secretaries of State Richard
Olney and Elihu Root—the first to President Cleveland, the latter to Theodore
Roosevelt—were eventually joined in such Latin American protestations to
maintain that the true essence of the Monroe Doctrine did not require the
United States to become the ‘‘international policeman’’ of the Western
Hemisphere, or a debt collection agent for the benefit of European creditor
states and their nationals.4

The formal promulgation of the Roosevelt Corollary to the Monroe Doc-
trine had been precipitated by the dire economic situation in the Dominican
Republic, where the government had literally fallen into a state of international
bankruptcy and was faced with the imminent prospect of military intervention
by European powers in order to enforce collection on debts owed to their
nationals. Pursuant to a convention effectively imposed by the Roosevelt

Lawlessness in the Caribbean 4]
*

administration upon the Dominican Republic government in 1907, the Presi-
dent of the United States was authorized to appoint a general receiver for the
collection and proper administration of all Dominican customs duties
revenues. This 1907 convention did not explicitly grant the United States a
right to intervene in the Dominican Republic for the purpose of securing the
discharge of any of its underlying obligations, though according to article II
the United States could provide the general receiver and his assistants with
‘such protection as it may find to be requisite for the performance of their
duties.’’> Under the specter of the Great War in Europe, on November 29,
1916, President Woodrow Wilson decided to intervene and placed the
Dominican Republic under military occupation over an alleged failure to fulfill
the terms of the convention. The Marines were withdrawn in 1924, but the
customs receivership was not terminated until 1940.

The 1907 Dominican Republic loan convention proved to be a rough-and-
ready model for the negotiation of economic receivership agreements:
between the United States and Honduras in 1911, which was not ratified;
between the United States and Nicaragua in 1911, not ratified, and again in
1914, which was ratified; and between the United States and Haiti in 1915.
The United States Marines intervened in Nicaragua in 1912, occupied the
country until 1925, returned the next year, and finally withdrew in 1933. U.S.
Marines occupied Haiti from 1915 through 1934, though the receivership was
maintained until 1947. The Marines landed in Honduras in 1924 and were not
withdrawn until the following year. In this manner ‘‘dollar diplomacy’’ and
**gunboat diplomacy’’ were to merge and proceed hand-in-hand in the formu-
lation of U.S. foreign policy towards Central America and the Caribbean
Basin.

Military interventionism became the keystone of U.S. foreign policy
towards the Western Hemisphere from the time of the 1898 Spanish-American
War until at least a decade after the conclusion of the First World War.
Politically, the policy was justified by the Roosevelt Corollary to the Monroe
Doctrine. Legally, the policy was justified either by the terms of some treaty,
or by the asserted right under customary international law for the U.S. govern-
ment to intervene militarily in order to protect the lives and property of its
nationals abroad from dangerous civil conditions allegedly degenerating
beyond the control of the host government—invariably a pretext at best.
Strategically, the fulcrum of U.S. interventionist policy towards Central
America and the Caribbean turned on the purloined Panama Canal Zone that
linked the two American coasts and served as the highway for political,
military, and economic communications between the U.S. mainland and its
recently acquired possessions in the Far East.

For the first three decades of the 20th century, the United States govern-
ment fruitlessly tried to cope with the problem of curing endemic political,
military, and economic instability in Central America, the Caribbean Basin,
and Mexico by the crude techniques of actual or threatened military interven-
tion and occupation. This interventionist policy expressly contravened the

42 BOYLE

emotional sentiments, philosophical principles, and numerous international
legal conventions that the United States government was simultaneously pro-
moting for general application within the inter-American system of inter-
national relations that it was actively seeking to create in the Western
Hemisphere. The ramifications of the Roosevelt Corollary’s elemental
characteristics of military interventionism and economic imperialism have
chronically plagued and hopelessly perplexed U.S. foreign policy decision-
making towards Central American and Caribbean countries up to and includ-
ing the present era.

Yet, contemporaneously with the implementation of the Roosevelt Cor-
ollary, it was also recognized by many members of the U.S. foreign policy
decision-making establishment that unilateral military intervention by the
United States in the domestic affairs of Central American and Caribbean coun-
tries, under whatever legal and political justifications or pretexts, was in itself
undesirable and ultimately self-defeating over the long run; and certainly it
was far less preferable than the foundation of some system sanctioned by all
states in the Western Hemisphere, which would provide for their collective
intervention when necessary in order to ensure that each lives up to its inter-
national responsibilities. Such notions prevalent among several generations of
U.S. foreign policy decision-makers eventually proved to be the motivating
force behind the foundation of the OAS and the inclusion of Chapter 8 in the
United Nations Charter for the express purpose of guaranteeing the effec-
tiveness of this organizational structure for the maintenance of international
peace and security in the Western Hemisphere. But because it has never
learned the tragic lessons derived from the unsuccessful history of unilateral
U.S. military interventionism in the Western Hemisphere throughout the past
80 years, the Reagan administration has condemned the peoples of all
American states to repeat the mistakes of the Roosevelt Corollary.

3. The Illegality of the U.S. Invasion of Grenada

The Reagan administration’s arguments purporting to justify the U.S.
invasion of Grenada under international law must not be allowed to manipulate
the U.S. populace into supporting yet another violent intervention into the
domestic affairs of some other independent American state, such as
Nicaragua. Throughout the 20th century, the U.S. government has routinely
concocted evanescent threats to the lives and property of U.S. nationals abroad
as pretexts to justify armed interventions into and military occupations of sister
American states. The transparency of these pretexts was just as obvious then
as it is today.

The Reagan administration has the burden of proof to establish by means
of clear and convincing evidence that there did in fact exist an immediate threat
to the lives of U.S. citizens in Grenada, which it never discharged. Even if
it had, such a threat could have justified, at the very most, only a limited
military operation along the lines of the Israeli raid at Entebbe for the sole pur-
pose of evacuating the major concentration of U.S. nationals studying at the

Lawlessness in the Caribbean 43

St. George’s School of Medicine. The alleged threat to U.S. nationals was
totally insufficient to justify a full-scale military invasion and occupation of
the country, together with the forceful deposition of the Austin-Coard regime.

Nor could the Reagan administration’s alternative rationale of terminating
the “‘chaotic conditions’’ allegedly then present in Grenada be properly
invoked to justify the military invasion, occupation, and regime ouster. Even
when it actually exists, chronic disorder in a country does not permit neighbor-
ing states to intervene for the purpose of re-establishing minimum public
security, let alone imposing a democratic form of government. Neighboring
states do possess a right of individual or collective self-defense under article
51 of the United Nations Charter to protect their own borders from external
attack originating from some unstable neighbor. But there was absolutely no
evidence that any faction in Grenada was engaged in or about to inflict any
overt or covert attack upon some neighboring Caribbean state by means of
armed troops, guerrillas, or “‘terrorists.’’ If such clear and convincing
evidence had existed, the United States government could have responded
immediately with measures necessary and proportionate to protect the victim,
at its request, in accordance with the right of collective self-defense recognized
by U.N. Charter article 51. .

As for the so-called request for assistance by the then deposed Governor-
General of Grenada, Sir Paul Scoon, there is no point in fruitlessly debating
whether or not he might have possessed some residuum of constitutional
powers to request foreign military intervention under the circumstances
prevalent in Grenada after the Austin-Coard coup. The fact of the matter was
that President Reagan gave the‘‘green light’’ for the Grenadan invasion to the
Pentagon on Saturday, October 22, 1983. According to Sir Paul’s own account
of his role, it was not until late Sunday evening that he even considered exter-
nal assistance to be necessary, and then what he asked for was not an invasion
but help from outside. Since Sir Paul’s request for assistance came well after
Reagan's order to invade, the former becomes completely immaterial to
analyzing the legality or illegality of the U.S. invasion. As the distinguished
and generally pro-American Economist concluded ina special report of March
10, 1984: **The Scoon request was almost certainly a fabrication concocted
between the OECS [the Organization of Eastern Caribbean States—eds.] and
Washington to calm the post-invasion diplomatic storm. As concoctions go,
it was flimsy.’’® Those international lawyers and Reagan administration
apologists who purport to attribute any semblance of legal validity to this
bogus request must gut the truth in order to do so.

Any such type of violent intervention into the domestic affairs of Grenada
by the United States government operating in conjunction with a motley col-
lection of Caribbean states required the explicit authorization by either the
U.N. Security Council acting under Chapter 7 of the United Nations Charter,
or at the very least, the appropriate regional organization acting in accordance
with U.N. Charter Chapter 8 and subject to the overall approval of the U.N.
Security Council. In this case, the Organization of American States was the

44 BOYLE

~

only collective agency mandated by the regional community of states to main-
tain international peace and security in the Western Hemisphere, and all the
participants in the Grenadan invasion (i.e., United States, Jamaica, Barbados,
Dominica, St. Lucia, St. Vincent, and Antigua), as well as Grenada itself,
were members of the OAS. Article 18 of the OAS Charter specifically pro-
vides that no state or group of states has the right to intervene, directly or
indirectly, for any reason whatsoever, in the internal or external affairs of any
other state. Article 20 declares that the territory of a member state is inviolable
and therefore may not be the object, even temporarily, of military occupation
or of other measures of force taken by another state, directly or indirectly, on
any grounds whatever. Finally, article 21 reiterates the solemn obligation of
article 2(4) of the United Nations Charter that American states will not have
recourse to force except in cases of self-defense pursuant to existing treaties.
In direct violation of these rudimentary international legal obligations, the
Reagan administration quite forthrightly admitted that it invaded Grenada for
the illegitimate purpose of deposing the leftist military junta that had seized
power after the coup against Prime Minister Maurice Bishop, and then install-
ing a government more favorably disposed to the United States.

The members of the OECS could not have lawfully authorized the U.S.
invasion of Grenada. To be sure, article 22 of the OAS Charter provides that
measures adopted for the maintenance of international peace and security in
accordance with existing treaties do not constitute a violation of the principles
set forth in the aforementioned OAS Charter articles 18 and 20. Let us assume
for the sake of argument that OAS article 22 actually applies to the subse-
quently concluded OECS Charter (1981). Apparently Secretary of State
George Shultz believed some such interconnection to exist when he intention-
ally tried to muddy the waters by arguing that the OECS was the functional
equivalent to the Rio Pact for the English-speaking countries of the Caribbean
Basin.

The United States and the Spanish-speaking countries of the Western
Hemisphere are parties to the 1947 Inter-American Treaty of Reciprocal
Assistance (called the Rio Pact), which is a collective of self-defense
agreements concluded under U.N. Charter article 51. The Rio Pact is the
Western Hemisphere’s functional equivalent to the North Atlantic Treaty
Organization (NATO), the essence of which can be found in the requirement
of Rio article 3 (NATO article 5) that an armed attack by any state against a
member state shall be considered as an attack upon all member states and, con-
sequently, that each member state undertakes to assist in meeting the attack
in accordance with the inherent right of individual or collective self-defense
recognized by U.N. Charter article 51. But collective self-defense agreements
concluded under U.N. Charter article 51 such as the Rio Pact or NATO do
not and cannot provide member states with any legal authority to intervene into
matters which are essentially within the domestic affairs of another member
state.

Since the English-speaking countries of the Caribbean Basin were not

Lawlessness in the Caribbean 45
parties to the Rio Pact, by means of the OECS Charter article 8 several of them
decided to establish a Defense and Security Committee that would merely
coordinate measures for their collective self-defense. But article 8 restricted
OECS competence in such security matters to situations amounting to an
‘*external aggression’”’ and then only in accordance with the right of individual
or collective self-defense recognized by U.N. Charter article 51. Hence article
8 provided no authority for OECS intervention into the turbulent domestic
affairs of Grenada produced by the anti-Bishop coup. Furthermore, OECS
article 8 required unanimous agreement by member states on the Defense and
Security Committee before any action could be taken, and that condition was
never fulfilled.

In the alternative event that the invasion was supposedly approved by the
OECS Authority of Heads of Government of the Member States of the
Organization, OECS article 6(5) specifically required that all decisions taken
by the Authority must receive the affirmative vote of all member states present
and voting at the meeting of the Authority at which such decisions were taken,
**...provided that such decisions shall have no force and effect until ratified
by those Member States, if any, which were not present at that meeting.”’
Grenada was not present at the OECS meetings that purported to authorize its
invasion. And for reasons previously explained, the bogus Scoon ‘‘request’’
could not constitute a valid ex post facto ratification of the illegal and ultra
vires OECS decision to invade. So the invocation of article 8 by OECS
members was completely ineffectual to justify their invasion of Grenada and,
a fortiori, unable to serve as the legal basis for its invasion by non-members
such as the United States, Jamaica, and Barbados.

4. The Precedential Significance of the Cuban Missile Crisis and the
Dominican Republic Civil War

If the Reagan administration and the members of the OECS had honestly
believed that the very existence of the Austin-Coard regime in Grenada could
have created a serious threat to the future peace and stability of the Caribbean,
the appropriate remedy would have been to bring the situation to the attention
of the OAS. In the relatively recent past, the United States government and
other Western Hemispheric states successfully resorted to the OAS on more
than one occasion in order to deal with matters they considered to jeopardize
the peace and security of the region. For example, during the 1962 Cuban
missile crisis, the U.S. government decided to turn to the OAS when the Ken-
nedy administration realized it was not able to justify its *‘quarantine’’ of Cuba
under U.N. Charter article 51 because there existed no immediate threat of
armed attack or armed aggression by Cuba against the United States. At the
request of the United States, the Council of the OAS decided to act provi-
sionally as the Rio Pact’s Organ of Consultation and unanimously approved
the “‘quarantine’’ of Cuba on the jurisdictional basis of Rio Pact article 6,
covering threats to the peace of the region other than armed attack. The OAS’s
overwheiming support for the U.S. position exercised a profound impact upon

46 BOYLE

Khruschev’s decision to remove the missiles and terminate the crisis, thus
avoiding World War III. Nevertheless, the U.S. government argued somewhat
incredibly before the U.N. Security Council that the OAS ‘*quarantine’’ of
Cuba was not an ‘‘enforcement action’’ that required explicit *‘authorization’’
by the U.N. Security Council as required by U.N. Charter article 53 because
the ‘‘quarantine’’ was only recommendatory, not mandatory by nature.’

Similarly, during the course of the U.S. military intervention into the
Dominican Republic in 1965, the Johnson administration realized its obvious
lack of legal authority to remain in that country for the purpose of terminating
the civil war raging in Santo Domingo and then re-establishing a democrat-
ically elected government. Consequently, it resorted to the OAS in order to
obtain approval for a continuation of the U.S. military occupation (though not
for the invasion itself) under the jurisdiction of the OAS. Upon the submission
of the crisis by the United States to the OAS Council, the latter convoked a
meeting of the Organ of Consultation, not under Rio Pact article 6 as during
the Cuban missile crisis, but under then article 39 of the OAS Charter dealing
with *‘problems of an urgent nature and of a common interest to the American
states.’’ The reason why Rio Pact article 6 was not invoked as the jurisdictional
basis for the convocation of the Organ of Consultation was that it was not
believed the Dominican Republic civil war constituted a fact or situation that
might endanger the peace of America. Eventually the Tenth Meeting of Con-
sultation of Ministers of Foreign Affairs created an Inter-American Peace
Force (IAPF) operating under its authority in the Dominican Republic that
incorporated the U.S. troops already on the island, inter alia. Nevertheless,
the United States government argued somewhat disingenuously before the
U.N. Security Council that the Inter-American Peace Force was not an
‘‘enforcement action’’ that required the explicit ‘‘authorization’’ of the
Security Council under article 53 of the United Nations Charter.®

This author does not intend to confer any endorsement upon the legal pro-
priety or political wisdom of either the ‘‘quarantine’’ of Cuba or any aspect
of the U.S. intervention into the Dominican Republic. Rather, the intent is to
contrast U.S.-requested OAS involvement in these two incidents with the fact
that the Reagan administration never bothered to bring the post-Bishop situa-
tion in Grenada to the attention of the OAS, as it could have easily done under
the new article 59 of the revised OAS Charter, which is the successor to the
former article 39 relied upon by the Johnson administration during the
Dominican Republic civil war. Clearly the situation in Grenada produced by
the anti-Bishop coup was nowhere near as serious internally or as potentially
dangerous externally as the civil war in Santo Domingo that confronted the
Johnson administration. Yet, unlike Johnson, President Reagan did not even
bother to request the OAS to intervene in Grenada for the limited purpose of
organizing and supervising popular elections leading to the installation of a
democratic government and the termination of the U.S. military occupation
of the island. The total lack of such an OAS imprimatur will raise serious
doubts concerning the international legitimacy of any successor government

Lawlessness in the Caribbean 47

in Grenada that is elected under the auspices of U.S. military occupation.
5. The Mirror-Imagery of the Johnson and Brezhnev Doctrines

In the immediate aftermath of the Grenadan invasion, 11 members of
the U.N. Security Council and 108 members of the U.N. General Assembly,
among both groups several staunch U.S. allies, deplored this invasion as
a gross violation of the most fundamental principles of international
law enshrined in the U.N. Charter. The U.S. government suffered the most
serious setback to its traditional role in upholding the integrity of the interna-
tional legal order in the Western Hemisphere since President Johnson’s strik-
ingly similar invasion of the Dominican Republic in 1965. Historically,
any U.S. foreign policy founded upon such blatant violations of international
law has proven to be counterproductive and ultimately self-defeating over the
long haul.

For example, even though Johnson subsequently obtained OAS approval
for U.S. military occupation of the Dominican Republic under the guise of the
IAPF, this maneuver was followed in relatively short order by Leonid
Brezhnev’s promulgation of a reincarnated version of the so-called Johnson
Doctrine as the primary justification for the Soviet invasion of Czechoslovakia
in 1968. In an effort to justify the U.S. invasion of the Dominican Republic,
the Johnson Doctrine proclaimed that although revolution in any country is
normally a matter for that country to deal with, it becomes a matter calling for
hemispheric action when the objective is the establishment of a communist dic-
tatorship. In a similar vein the Brezhnev Doctrine stated that ‘‘...When the
internal and external forces hostile to socialism seek to revert the development
of any socialist country toward the restoration of the capitalist order, when a
threat to the cause of socialism in that country, a threat to the security of the
socialist community as a whole, emerges, this is no longer a problem of the
people of that country but also acommon problem. . . for all socialist states.’”
There is a remarkable degree of similarity between the arguments put forth by
the United States government before the U.N. Security Council in 1965 to
justify its invasion of the Dominican Republic and the arguments employed at

the Security Council by the Soviet Union to justify its 1968 invasion of

Czechoslovakia. It is almost as if the later Soviet diplomats obtained a ver-
batim record of the earlier Security Council debates over the Dominican
Republic invasion, and adopted wholesale the gist of the legal arguments set
forth by the United States government in order to justify their Czechoslovak
invasion (except that the Warsaw Pact was obviously a collective self-defense
agreement concluded under article 51 of the U.N. Charter and therefore could
provide absolutely no legal justification for military intervention into the
domestic affairs of one member state by any or all other member states). Yet
Brezhnev’s transmuted version of the Johnson Doctrine would return to vex
U.S. foreign policy decision-making as one of the justifications for the Soviet
Union’s patently illegal invasion of Afghanistan in 1979.

U.S. military action in egregious violation of international law sends a

48 BOYLE

-

strong message to the entire international community that, in the opinion of
the U.S. government, the conventional rules restricting the transnational
threat and use of force found in the U.N. and OAS Charters no longer apply
in settling the myriad of contemporary international disputes. When even the
U.S. flouts international law, the only consequence can be an increasing
degree of international violence, chaos, and anarchy around the globe. U.S.
military forces are certainly not up to the task of ‘‘policing’’ all of Central
America and the Caribbean Basin, let alone the entire world. And as the War
Powers Act proves, the American people would not permit them to do so
anyway, despite the bellicose inclinations of the Reagan administration.

6. The Reagan Administration’s Undeclared War Against Nicaragua

International lawlessness in Grenada will return to haunt the future of U.S.
foreign policy around the world and especially in the Western Hemisphere.
Yet right now the Reagan administration seems to be planning an identical fate
for the Sandinista government in Nicaragua under the subterfuge of reviving
the moribund Central American Defense Council Pact (CONDECA). As a
matter of international law, CONDECA is functionally analogous to the Rio
Pact in that it constitutes a collective self-defense agreement concluded under
U.N. Charter article 51, and thus can only be triggered in the event of an
armed attack or external aggression upon member states. Consequently, the
Reagan administration is striving mightily to provoke the Sandinista govern-
ment into attacking the opposition contra groups at their bases of supply in
Honduras, which could then serve as a pretext for the intervention of U.S. and
Central American military forces under the guise of ‘‘the right of collective
self-defense.’’ In order to forestall this immediate present danger of a region-
wide war in Central America, Congress must enact a Central American
equivalent to the Clark Amendment for Angola, which would expressly pro-
hibit the expenditure of any U.S. governmental funds in support of overt or
covert military or paramilitary operations in the Western Hemisphere without
explicit congressional authorization.

The Reagan administration’s longstanding policy of organizing and
supporting military operations launched by the opposition contra groups from
their bases of supply in Honduras and Costa Rica against the Sandinista
government is illegal, irresponsible, and counterproductive for maintaining
international peace and security for all states in Central America. The Reagan
administration seems more determined to obtain an outright military victory
against the Sandinista government in Nicaragua and against the insurgents in
El Salvador at any cost, than it is to restore some semblance of peace and
stability to Central America. Following in the footsteps of Theodore
Roosevelt's antiquated ‘‘big stick’’ policy, the Reagan administration prefers
the pursuit of unilateral military intervention as a chimerical panacea for cur-
ing the widespread instability indigenous to Central America and the Carib-
bean Basin.

Despite the Reagan administration's protestations to the contrary, there

Lawlessness in the Caribbean 49

does exist a realistic alternative to intervention by U.S. troops, or doing
nothing in Central America. In order to head off a U.S.-instigated border war
between Honduras and Nicaragua as well as to prevent the militarization and
consequent destabilization of Costa Rica, an independent peacekeeping force
and/or observer group organized by the OAS or, if Nicaragua continues to
object to the OAS’s involvement, by the U.N. Security Council, should be
stationed both on the border between Honduras and Nicaragua and on the
border between Costa Rica and Nicaragua. Its mission would be to interdict
any alleged flow of arms from Nicaragua into El Salvador, as well as to pre-
vent the infiltration of all paramilitary forces into Nicaragua from its immed-
iate neighbors.

For good cause, Nicaragua has so far objected to the implementation of
such an independent peacekeeping role by the OAS, because the Sandinistas
correctly perceive the organization to have been historically under the
predominant influence of the United States government. For example, in 1979
the Carter administration attempted to convince the OAS to send an interna-
tional peacekeeping force to Nicaragua in order to prevent the Sandinistas
from assuming power in the face of the impending departure of Anastasio
Somoza. Even though ultimately unsuccessful, this U.S. strategem created
legitimate suspicions about the creditability of the OAS in the eyes of the San-
dinistas. The United States government must strive to convince the San-
dinistas that submission of the matter to the OAS will be pursued in good
faith and that the U.S. government will abide by whatever resolution is even-
tually worked out by the rest of the OAS members. In addition, for reasons
that will be discussed below, Cuba should be reintegrated into the OAS in
order to provide the Sandinistas with a favorable interlocutor and as a
demonstration of good faith and impartiality by both the United States and
the OAS as a whole.

If Nicaragua nevertheless proves to be reluctant to have the matter submit-
ted to the OAS, the United Nations Security Council still possesses concur-
rent jurisdiction to deal with the situation in Central America under U.N.
Charter articles 34, 35, and 52. For quite some time the U.N. Security Coun-
cil has proven to be extremely effective at the deployment of observer groups
and peacekeeping forces along border regions engulfed in serious transna-
tional conflict. Just because the OAS might ultimately prove to be institu-
tionally incapable of serving as an effective intermediator in the dispute
between the United States and Nicaragua, neither can nor should this prevent
the U.N. Security Council from exercising its “‘primary responsibility” for
the maintenance of international peace and security in the Western
Hemisphere under U.N. Charter article 24.

As for the Reagan administration’s mere rhetorical support for the so-
called Contadora Group, such gestures are really intended to generate the
smokescreen of a multilateral approach promising the peaceful resolution of
the dispute, while the Reagan administration continues to pursue a unilateral
and illegal alternative based upon violence, threats, and coercion. With all

50 BOYLE

due respect for the good intentions of the members of the Contadora Group
(Mexico, Panama, Venezuela, and Colombia), they cannot serve as an effec-
tive substitute for formal involvement by either the OAS or the U.N. Security
Council. Their sincere efforts to obtain a peaceful resolution of the conflicts
in Central America have only been deceptively manipulated by the Reagan
administration to provide the veneer of a plausible legal argument why neither
the OAS nor the U.N. Security Council should exercise its recognized
jurisdiction to deal with the situation.

7. U.S. Intervention in El Salvador’s Civil War

In the pursuit of its patently illegal policy of overthrowing the Sandinista
government in Nicaragua, the Reagan administration has contemptuously
violated the essential provisions of both the U.N. and OAS Charters and
numerous principles of customary international law concerning the use of
transnational force, including the terms of the 1907 Convention Relative to the
Laying of Submarine Mines, to which Nicaragua and the United States are par-
ties. In a category just as heinous are the repeated violations of U.S. domestic
law that the Reagan administration has found necessary to perpetrate in order
to pursue its internationally lawless policies in Central America: the War
Powers Act; the Neutrality Act; the Ethics in Government Act; the Boland
Amendment; and the Intelligence Oversight Act, among others. Added to this
list is the Reagan administration’s sordid attempt to withdraw from the com-
pulsory jurisdiction of the International Court of Justice in regard to disputes
concerning Central America for a period of two years in order to avoid
Nicaragua’s suit against the United States. This action represents an uncon-
stitutional usurpation by President Reagan of the power to amend a treaty that
has received the advice and consent of two-thirds of the Senate without receiv-
ing the additional advice and consent of two-thirds of the Senate to the amend-
ment. The amalgamation of Reagan's foreign policies toward Central America
constitutes nothing less than a gross pattern of violations of the most fun-
damental requirements of U.S. domestic law, international law, and the U.S.
Constitution.

The Reagan administration has attempted to justify this gross pattern of
domestic and international lawlessness by the specious argument that the
various measures it has inflicted upon the Sandinista government are part of
a legitimate, collective self-defense effort undertaken by it to protect the
government of El Salvador against alleged Nicaraguan aggression. Concern-
ing this latter allegation, however, there exists a serious question of proof
because the Reagan administration has never adduced clear and convincing
evidence that the Sandinista government is currently providing weapons,
equipment, and supplies to the insurgents in El Salvador, pleading that such
revelations might possibly compromise sensitive intelligence sources and
methods. Irrespective of the self-serving nature of these assertions, interna-
tional law places the burden of proof on this matter squarely upon the
shoulders of the Reagan administration.

Lawlessness in the Caribbean 51

The Reagan administration's refusal to produce clear and convincing
evidence that Nicaragua is currently sending weapons, equipment, and sup-
plies to the insurgents in El Salvador forfeits any claim to the support of the
American people, the OAS, and the members of the international community
for measures involving the threat or use of force against the Sandinista govern-
ment on the grounds of collective self-defense for El Salvador. Indeed, so far
the evidence in the public record clearly indicates that the Sandinista govern-
ment terminated the large-scale provision of military assistance to the
insurgents in El Salvador by the spring of 1981, shortly after Reagan came to
power uttering dire threats of economic, political, and military reprisals if
Nicaragua’s undoubtedly impermissible conduct did not cease.'® Since the
success of those threats, however, the primary focus of the Reagan administra-
tion’s policies toward Central America has become achieving the quite illegal
goals of deposing the Sandinista government in Nicaragua and defeating the
insurgents in El Salvador’s civil war.

Even assuming that Nicaragua has provided limited amounts of weapons,
equipment, and supplies to the insurgents in El Salvador since the spring of
1981, the fact, if established by means of clear and convincing evidence,
would still not justify the violent policies that the Reagan administration has
subsequently pursued towards Nicaragua. For example, U.S. instigation of
and support for the contra groups operating out of Honduras and Costa Rica
cannot be justified as a legitimate act of collective self-defense under the terms
of U.N. Charter article 51. Procedurally, the Reagan administration was first
obliged by U.N. Charter articles 33 and 52 to attempt in good faith to obtain
a peaceful resolution to the conflict under the auspices of the OAS. Reagan’s
purposeful failure to do so, or in the alternative to bring the matter to the atten-
tion of the U.N. Security Council under Charter article 35, vitiates his claim
of a right to use force in collective self-defense of El Salvador.

Substantively, even if the Reagan administration had in good faith
exhausted all measures for the peaceful settlement of this dispute without suc-
cess, its instigation of the contra groups for the express purpose of over-
throwing the Sandinista government in Nicaragua could still not be justified
as a legitimate measure of collective self-defense under U.N. Charter article
51. The Boland Amendment to the Continuing Appropriations Act for Fiscal

Year 1983 provided the proper distinction under international law that should
have been drawn and applied to this situation:

None of the funds provided in this Act may be used by the Central
Intelligence Agency or the Department of Defense to furnish military
equipment, military training or advice, or other support for military
activities, to any group or individual, not part of a country’s armed
forces, for the purpose of overthrowing the Government of

Nicaragua or provoking a military exchange between Nicaragua and
Honduras.

In other words, under the doctrine of collective self-defense, the U.S. govern-

$2 BOYLE

1

ment could only have provided military and economic assistance at the request
of the governments in El Salvador and Honduras, for the limited purpose of
interdicting any alleged flow of arms from Nicaragua through Honduras into
El Salvador, but not to any extent for the illegitimate purpose of overthrowing
the Sandinista government in Nicaragua. Yet the Reagan administration never
paid any attention to this flat prohibition of the Boland Amendment, and a
pusillanimous Congress proved quite willing to permit a popular President to
flout this and several other of its basic laws in Central America.

Although the military operations of the contras might have as an incidental
consequence the interdiction of arms supplies from Nicaragua through Hon-
duras into El Salvador, that is not now and probably has never been their
primary objective. Hence, U.S. support for the contras is prohibited by both
the terms of the United Nations Charter and the OAS Charter. Moreover,
whatever putative ‘‘right’’ the U.S. government might have in theory to inter-
dict such arms in cooperation with the governments of Honduras and El
Salvador, due to the prior history of the Reagan administration’s abusive
manipulation of the contras, it would be far preferable for some combination
of observer groups and/or independent peacekeeping forces operating under
the auspices of the OAS or the U.N. Security Council to take the place of both
the contras and U.S. troops along the concerned Central American borders in
order to patrol for the purpose of interdicting any transnational flow of arms
and guerrillas.

In regard to the resolution of the civil war in El Salvador, on this matter,
too, the OAS should be given the leading role to play. An OAS peacekeeping
force could be introduced into El Salvador that consists of troops drawn from
American states acceptable to all the internal parties to the conflict. Its mission
would be to restore conditions of domestic security to a degree sufficient to
permit the convocation of full-scale negotiations among representatives of all
the internal factions over the terms necessary to ensure free, fair, and safe
democratic elections for all Salvadorans. These elections could be conducted
under the supervision of the OAS, and would necessarily require a cessation
of hostilities and some degree of reduction in military forces on both sides of
the conflict. Eventually the OAS peacekeeping force could be gradually
phased out of the country sometime after the installation of a broadly based,
democratically clected government that is free from the tutelage of the United
States. This is not the case with the current government of José Napoleén
Duarte.

The historical record clearly establishes that with the active support of the
Johnson administration, such OAS facilitation of the transition from civil war
to a democratic government in an American state succeeded once before in the
Dominican Republic, which has remained a democracy until today. Now,
however, the primary obstacle to implementing a similar OAS-sponsored
peacekeeping approach to terminating the civil war in El Salvador has proven
to be the Reagan administration's obstinate refusal to abandon its pursuit
of some phantasmagorical unilateral military victory against the insurgents.

Lawlessness in the Caribbean 53

Fundamental principles of international law dictate nonintervention by the
U.S. government into El Salvador’s civil war because the determination of one
state’s form of government is universally considered to involve the interna-
tional right of self-determination for the people of that country. The alleged
fact that Nicaragua might have impermissibly intervened into the Salvadoran
civil war by providing weapons, equipment, and supplies to the insurgents
cannot justify any alleged right of counterintervention by the U.S. government
so long as the OAS or the U.N. Security Council can be successfully utilized
to de-escalate the conflict. By contrast, in direct violation of the basic require-
ment of international law mandating the peaceful settlement of international
disputes, the Reagan administration has implemented a foreign policy toward
Central America that seems purposefully designed to produce an escalation of
military hostilities to the point of precipitating armed intervention by U.S.
troops into combat against the insurgents in El Salvador and the Sandinista
government in Nicaragua.

8. The Need for a New U.S. Foreign Policy Toward Cuba

Any serious effort by the United States government to restore and then
maintain international peace and security throughout Central America and the
Caribbean Basin must be supported by a thorough re-evaluation of U.S.
foreign policy toward Cuba in accordance with the requirements of interna-
tional law. The best way to ‘‘neutralize’’ Castro as a supposed anti-U.S. actor
in the Western Hemisphere excludes the means hitherto used: viz., military
invasion, naval blockade, covert operations, economic sanctions, and political
destabilization measures—all of which clearly violate international law.
Rather, the Reagan administration should seek to re-establish normal
diplomatic relations with the Castro government as soon as feasible; to remove
all U.S. economic sanctions imposed against Cuba; to prosecute Cuban
refugee groups located in the United States that prepare armed expeditions
against the Castro government in violation of U.S. neutrality laws, and to
employ U.S. military forces to thwart such expeditions whenever detected as
required by U.S. law; to reverse the 1962 Punta del Este Resolution by the
Eighth Meeting of Consultation of the Ministers of Foreign Affairs of the
American Republics that excluded the Castro government from participation
in the OAS; and finally, to include Cuba within President Reagan’s program
for the economic development of the Caribbean Basin. Such a comprehensive
U.S. policy could free Castro from Cuba’s burdensome, and, at times,
counterproductive and unwanted reliance on the Soviet Union for military
defense and financial subsistence. The pursuit of such a new Cuban policy by
the United States government could also promptly facilitate the search for a
peaceful settlement to the conflicts now raging in Central America.

Historically, the U.S. government has adopted the absurd position that
because the Punta del Este Resolution did not formally expel the state of Cuba
from the OAS, but only excluded the Castro government from participation
in the organization’s activities, Cuba is still bound by the terms of the OAS

54 BOYLE

Charter in its relations with other American states. In response to the incred-
ible sophistry of this argument, the Castro government has taken the fully
warranted legal position that Cuba was effectively expelled from the OAS in
1962, and consequently is no longer bound by the obligations of the OAS
Charter in its relations with any Western Hemispheric state. To be sure, Cuba
continues to be bound by the terms of the United Nations Charter in its rela-
tions with fellow U.N. members in the Western Hemisphere. But as a result
of the Punta del Este Resolution, Cuba is neither protected by nor subjected
to the higher set of international legal rules established in the OAS Charter
for general application by most states of the Western Hemisphere in their
mutual relations.

The Reagan administration has maintained that the Castro government’s
provision of political, military, and economic assistance to the insurgents in
El Salvador provides the justification for its policy of continuing to treat Cuba
as the pariah state of the Western Hemisphere. Fortunately, so far, the Reagan
administration has refused to accept the fervid advice of former Secretary
of State Alexander Haig that it “go to the source” of the problems in Central
America by taking some sort of unspecified illegal military action against
Cuba. The “source” of the problems in Central America lies not in Cuba
but in poverty, disease, illiteracy, exploitation of the peasantry, extermination
of indigenous peoples, astronomic degrees of economic inequality, and
massive violations of fundamental human rights perpetrated by military dic-
tatorships operating at the behest of economic oligarchies. At the very most,
the Cuban government can only provide support to indigenous revolutionary
forces already prevalent throughout Central America. Cuba can neither create
nor assist a revolution that has not previously been produced by the life-
threatening conditions confronting the peoples of the region.

Admittedly, for Cuba to supply political, military, and economic support
to the insurgents in El Salvador violates the terms of the United Nations
Charter. The Cuban response seems to be that its support for the insurgents
in El Salvador can be justified by massive U.S. violations of international
law with respect to Cuba for the past 25 years. The position of the Castro
government has been that it will abide by international law with states that
abide by international law in their relations with Cuba. Since the United
States government has essentially waged overt and covert military, political,
and economic warfare against Cuba for the past quarter-century, Cuba will
provide support to those indigenous forces seeking to overthrow U.S.-backed
military dictatorships throughout the Western Hemisphere.

Of course the great irony of the Cuban position is that it represents a mir-
ror image of the Reagan administration's justification for its illegal policies
toward Central America: violations of international law by one’s adversary
supposedly justify counterviolations by yourself. Except that due to its
preponderant power, the quantity and quality of violations of international law
committed by the United States far outweigh Cuban counterviolations in their
respective degrees of deleterious significance for undermining the stability of

Lawlessness in the Caribbean 55

the international legal order in the Western Hemisphere. Once again, it is not
a symmetrical situation. As a matter of sound foreign policy, a superpower
committed to the preservation of the international status quo neither can nor
should attempt to justify an extensive pattern of international law violations on
the grounds that some minor adversary might be doing the same thing.
Since Cuba is not a member of the OAS, it is not bound by the obligations
of the OAS Charter in its relations with any of the countries in Central America
and the Caribbean, including El Salvador. However, since the United States
of America is a party to the OAS Charter, it is bound by the terms of OAS
articles 18 and 20, inter alia, in its relations with Nicaragua. Hence, the
Reagan administration cannot justify its violations of the OAS Charter with
respect to Nicaragua by citing allegations of Cuban support for the insurgents
in El Salvador. The United States is held to a higher standard of international
legal behavior in regard to Nicaragua (i.e., both the OAS and U.N. Charters)
than Cuba is in regard to El Salvador (i.e., the U.N. Charter alone). The
appropriate remedy for this inequality of legal rights and duties between Cuba,
on the one hand, and OAS members on the other would be to commence the
process of reincorporating Cuba into the OAS by first rescinding the Punta del
Este Resolution. With its express consent, Cuba could then rejoin the OAS and
thus become bound to observe the higher standards of international law enun-
ciated by the OAS Charter in its relations with El Salvador and all other

governments in Central America and the Caribbean Basin. The same would
hold true for U.S. foreign policy toward Cuba.

9. The ‘‘Linkage’’ Between the Reagan Administration’s
Cuban and Namibian Policies

The Reagan administration’s illegal and paranoid approach to the Castro
government has impelled it to abandon the Carter administration’s construc-
tive program for securing the independence of Namibia on the basis of U.N.
Security Council Resolution 435 (1978), by instead conditioning Namibian
independence upon the withdrawal of Cuban troops from Angola. Cuban
troops are in Angola at the legitimate request of the MPLA government to pro-
tect it from overt and covert aggression mounted by the South African govern-
ment from Namibia. There is absolutely no international legal justification for
South African aggression against Angola in order to maintain and consolidate
its reprehensibly illegal occupation of Namibia.

The Reagan administration’s myopic concentration on the Cuban presence
in Angola will only lead the United States farther into the deadly embrace of
the apartheid regime in South Africa. The Reagan administration’s failure to
actively support the independence of Namibia has undercut the good political
and economic relations with black African states that were successfully pro-
moted by the Carter administration. The Reagan administration's visceral
hatred for Castro has led it to adopt policies toward southern Africa that con-
travene the principles of international law and the pertinent resolutions of

56 BOYLE

international organizations fostering both the independence of Namibia and
the destruction of apartheid in South Africa. The right of the Namibian people
to self-determination had been firmly established under international law long
before the South African, American, and Cuban governments decided to inter-
vene into the Angolan civil war. Consequently, the Reagan administration has
no right to obstruct the achievement of Namibian independence by condi-
tioning it upon or “‘linking”’ it to the withdrawal of Cuban troops from Angola
in any way.

The United States government must lead the way in developing a renewed
and strengthened international commitment to achieving the independence of
Namibia along the lines of the plan approved by the U.N. Security Council
in Resolution 435 (1978). With South Africa finally dislodged from Namibia,
there would be no need for the presence of Cuban troops in Angola. The
Angolan government has repeatedly stated that when South Africa leaves
Namibia it will request the withdrawal of Cuban troops, and Cuba has agreed
to withdraw its troops whenever so requested by Angola. According to the
relevant rules of international law, that is the proper sequence of events to be
followed. In the meantime, the Reagan administration should obey the terms
of the Clark Amendment prohibiting assistance of any kind for military or
paramilitary operations in Angola without explicit congressional authoriza-
tion, participate in the resolute condemnation by the U.N. Security Council
of all South African military raids launched from Namibia into Angola, and
establish normal diplomatic relations with the MPLA government in Luanda.

Instead, the Reagan administration has improperly demanded the coordi-
nated withdrawal of Cuban troops from Angola and South Africa from
Namibia in the expectation of claiming a victory against Castro and ‘‘world
communism”’ in southern Africa. Unlike its much-maligned predecessor,
after a full term in office the Reagan administration does not even have one
major foreign policy success to its credit—except for, in its demented opinion,
the rape of Grenada. If the Reagan administration persists in pursuing a
foreign policy that is so fundamentally lawless, only more setbacks for the
position of the United States government will continue to occur in Central
America, southern Africa, the Middle East, and the Persian Gulf. The time
is long past for the American people to put an end to the international

lawlessness of the Reagan administration before it spells disaster for the rest
of the world.

August 1984

NOTES

1. Address by Ambassador Jeane J. Kirkpatrick at the American Society of International Law,
Washington, D.C. (April 12, 1984).

2. See J. Richardson, Messages and Papers of the Presidents, 9 (1911), p. 7053.

Chronic wrongdoing, or an impotence which results in a general loosening of the ties
of civilized society, may in America, as elsewhere, ultimately require intervention by

Lawlessness in the Caribbean 57

some civilized nation, and in the Western Hemisphere the adherence of the United
States to the Monroe Doctrine may force the United States, however reluctantly, in
flagrant cases of such wrongdoing or impotence, to the exercise of an international

police power.

3. See Drago, “*State Loans in Their Relation to International Policy,” American Journal of Inter-
national Law | (1907), pp. 692, 721-22.

4. See Olney, “The Development of International Law,” American Journal of International
Law | (1907), pp. 418, 423; Root, “The Real Monroe Doctrine,’ American Journal of Interna-
tional Law 8 (1914), pp. 427, 433-37.

5. Convention Concerning Customs Revenues, Feb. 8, 1907, United States-Dominican
Republic, article II, 35 Stat. 1880, 1883, T.S. No. 465. See Hollander, ‘The Convention of 1907
Between the United States and the Dominican Republic,” American Journal of International Law
1 (1907), p. 287. Rippy, “The Initiation of the Customs Receivership in the Dominican Republic,”
Hispanic American History Review \ (1937), p. 419.

6. Economist, March 10, 1984, p. 34.

7. See A. Chayes, T. Ehrlich and A. Lowenfeld, International Legal Process 2 (1968), pp.
1057-1149 (1968).

8. See A. Chayes, T. Ehrlich and A. Lowenfeld, /nternational Legal Process 2 (1968),
pp. 1150-1233.

9. Quoted in Schwebel, “The Brezhnev Doctrine Repealed and Peaceful Co-Existence
Enacted,” American Journal of International Law 66 (1972), p. 816.

10. See Greenberger, “Congress Skeptics Balk at Nicaragua Evidence,” Wall Street Journal
(June 15, 1984), p. 22.

THE NEW YORK TIMES, SATURDAY, NOVEMBER 24, 1984

C.L.A.’s ‘Contra’ Manual Incited War Crimes

To the Editor: _ ” “war crimes.” Paragraph 499 defines _

With respect to the apparent white.  “‘war crime” as the technicalexpres- ,
wash of high-level C.I.A. officials by. ‘sion for a violation of the law of war
the agency inspector general’s report by any person or persons, military or
on the “‘contra” manual affair (Nov. Civilian. Every violation of the law of
15), U.S. Army field manual 27-10, war is a war crime,
“The Law of Land Warfare” (1956), According to paragraph 31, politi-
prescribes the appropriate standards cal assassination is a violation of the
* of law applicable to such situations law of war: And pursuant to para- ~~~

re and. long recognized as valid by the graph 500, conspiracy, direct incite.

United States Government. , ment and attempts to commit, as well
According to paragraph 498, any ; as complicity in the commission of,
person,- whether a member of the | war crimes are similarly punishable

armed forces or a civilian, who com- |

}

mt ar heels marital :
under international law is responsib e- 501, Ss. ernment offi
for it and liable to punishment. Such! — | h.3 oe —s .
offenses in connection with Warfare: have had knowledge, through re-
7 a Ba - _ Other means that persons subject to
—— = his control were about to commit or
had committed war crimes and who ce
failed to take the necessary and rea- |
sonable steps to insure compliance |
with the law of war or to punish
. violators of it is Similarly guilty of a
war crime. .

:
a
BFERE |

s- Congress must insist that President

y ‘Officials guilty of such war crimes.
- The American people cannot per- _

: fairs and defense policy to be con-
ducted by acknowledged war crimi- |
" - . Rals. . FRANCISA:BOYLE -- ~~ --
Professor of Law, University of Illinois
_ Champaign, Ill, Nov. 14, 1984

— . -

“What we are seeing now
with the Reagan people, not
only with respect to Libya, but
also) in the Middle East, Gre-
nada and ‘Nicaragua is they
employ) a concoction of legal
arguments very reminiscent of
the arguments made by some
of the Nazi war criminals. | am
most distressed at this...” says
Professer Francis A Boyle in
this this wide-ranging interview

on the Libyan-US dispute.

[= is no basis in international
law for this attack against Libya.
As revealed in the New York
Times, apparently the Reagan people
were going to go ahead and launch
the attack and not invoke Article 51 of
the UN Charter. The decision to refer
to the UN Charter apparently came
from Prime Minister Margaret Thatcher.

Previously, during the manoeuvres in
the Gulf of Sidra, Prime Minister
Thatcher was asked if military retalia-
tion against Libya would be acceptable
and she said it would not since it
would be a violation of international
law. As best as | can tell here, what
happened on this is that the Reagan
people went to Thatcher and said: look
we supported you in the Falklands war
and we want your support with respect
to military action against Libya. So we
want your permission to use those
air-bases in England for the purposes
of the attack. And Thatcher gave in
although | suspect she had fairly
serious reservations about it, but under
those circumstances she had no option
but to comply. Nevertheless, she in-
sisted that they at least invoke Article
51 to provide what some officials in
Britain called “a fig-leaf” behind which
she could then justify her action in
Parliament and before the British peo-
ple.

lt must be remembered that what

occurred in Libya is what in -interna- —

tional law is called retaliation and
reprisal and clearly retaliation and
reprisal are not included within the
doctrine of legitimate self-defence as
recognised by the UN Charter. Histor-
ically, from the time of the signing of
the Charter — in 1945 — the US
government has always taken the
position that retaliation and reprisal
were not legitimate measures of self-
defence under Article 51 of the Char-

AFRICA EVENTS MAY/JUNE 1986

sesh SE EEE IEAA REE SEALE i AOR RONEN LE BEE BENT LE RE ABE Tt Bais OER AE AE AREA BR a abs ebee Ra is ois Pe Re Scce Acai as bail

ter. Even during the days of the
Vietnam war, we never abandoned this
position that retaliation and reprisal
were prohibited by international law.
As late as about 1976-77, an attempt
was made to get the Dep’t of State to
change its position on retaliation and
reprisal. At that time Eugene Rostow
who had been an Under-Secretary of
State in the Johnson administration,
and is a vigorous supporter of the
State of Israel, had requested the Dep't
of State to change its policy on
retaliation and reprisal with respect to
the Israeli retaliatory and reprisal raids
into Lebanon. The Dep’t of State did
look into the matter but concluded that
there were no good grounds for the
US government to change its policy.
This was important with respect to
Israel because the US has an arms
supply treaty which provides that
American weapons and equipment
supplies can only be used in legitimate
self-defence as determined by Article
51 of the UN Charter or as part of an
enforcement action authorised by the
UN Security Council. And this is also a
requirement of the US law known as
the Arms Export Control Act.

The twins

What we are seeing now is that the
US government, the Reagan adminis-
tration, are adopting the Israeli inter-
pretation of Article 51 of the UN
Charter. In other words, you are seeing
an Israelisation of American foreign
policy. What happened is quite simple.
The Israelis have always been arguing
in favour of a tough line against
intemational terrorism even though
what they did was different from what
they said they were doing. And the
Reagan people being so enamoured
of the Israelis, picked their tough
rhetoric and are now patterning their
policy on what the Israelis have said
was their policy. | think this is most
regrettable. The US and Israel are in
very different situations with respect to
our interests and our value systems,
and now we are imitating them, which
| think, is a terrible, tragic mistake,

__ especially in the Middle East.

On the other Israelis

The Reagan administration is the
most vigorously pro-Israel government
we have ever seen in the history of the
USA. Many of the top advisers,
appointed right at the outset of this
administration, in the Dep’t of State, the
White House and the Dep't of Defence
are all very vigorous pro-lsrael suppor-
ters. And it is these people who have

|

ee wt. >=!
a8 Bi-se ad

formuluiea the particular policy the
culmination of which we saw in the
Lebanon invasion of 1982, in the first
Gulf of Sidra incident in 1981, the
second Gulf of Sidra in 1986 and now
the attack on Libya itself in April,
1986. | think it was due to the
influence of these people that the
Reagan administration targeted Gadaf-

 fi- for destruction” right from the very
start.

It will be recalled that one of the
very first projects submitted by the CIA
to the Joint Committee dealing with the
Oversight of Covert Operations was a
plan to overthrow and, if necessary,
murder and assassinate Gadaffi and
that has been standing US policy to the
best of my knowledge right from the
very start of the Reagan administration.

Tied into that was the first Gulf of
Sidra incident in December, 1981
which apparently, they had hoped,
perhaps, they could get the Egyptian
army involved to undertake tough
military action against Gadaffi_ that
would lead to his overthrow. That did
not work. And they have been working
consistently at this with Libyan exile
groups around the world and also with
internal opposition to Gadaffi in Libya
in order to mount a coup. When that
turned out not to succeed, apparently
last summer Admiral Poindexter, who is
now the Presidents National Security
advisor travelled to Egypt to convince
President Husni Mubarak to invade
Libya as part of the joint military action
with the US, the theory being that if
they. could not overthrow Gadaffi in a
coup the only way to eliminate him
would be an armed invasion.

-Mubarak refused to join the hair-
brained scheme.

Can the President, Can‘t
he?

In theory, it is supposed to be a
violation of an Executive Order issued
previously, | believe, by President Ford
that the United States government
would not condone or sanction or get
involved in the assassination of any-
one, let alone heads of state or
governments. But on the other hand,
there has been a long history of CIA
cttempts to ‘assassinate or overthrow
heads of government: you had Lumum-
ba, you had Castro, you had Diem,
you had Allende. That is the Executive
Order. But there is no statute on the
matter.

But the fact remains that it is the
official policy of the US government
that assassination of anyone, let alone
a head of state, is a violation of the

52

COVER STORY _

AN
ASS"

laws and customs of warfare. You can
find this, for example, in the US Army
field manuals on the laws of land
warfare published way back in 1956
to the effect that assassinations are
prohibited under all circumstances be-
cause it is a crime under well-
recognised principles of international
law, and you can find the same

principle enunciated in equivalent |

manuals put out by both the Air Force
and the Navy.

Sabra and Chatila

The US government, at least tech-
nically, has been on record as standing
for the proposition that assassinations
are prohibited and this goes all the
way back to The Hague regulations of
1907 which prohibit killing of adver-
saries in armed conflict by means of
treachery. Apparently the Reagan peo-
ple have paid no attention at all to that
and have gone now nght ahead to try
to overthrow, and if necessary murder
and assassinate Gadaffi. This then sets
the stage, | think, for incidents in Rome
and Vienna. It is now a matter of
public record that Gadaffi had nothing
to do with incidents at Rome and
Vienna, but that these attacks on
December 27, 1985 were carried out
by Palestinians who had been recruited
from the Sabra and Chatila refugee
camps in Lebanon by the Abu Nidal
Organisation that is headquartered in
Damascus, Syria, and not in Tripoli,
Libya. These are the same camps
where the massacres had occurred in
the summer of 1982 by the Israeli
army, and the Palestinians still hold the
US government responsible for these
massacres because the US government,
through Phillip Habib, had given its
word to ‘Arafat and to the PLO that
nothing would happen to Palestinian
refugees. So these individuals were
recruited in Sabra and Chatila, trained
in the Bekaa Valley that is under the
control of the Syrian army, then went
to Damascus, and from there they
carried out the attacks in Rome and
Vienna. But none of that really mat-
tered to the Reagan administration,
that the primary connection to these
attacks was not Libya and Gadaffi.

On Terrorism

The vast majority of terrorist attacks
carried out against US citizens and
interests in the Middle East, Europe and
the Mediterranean have all arisen out
of the fact that the US government
gave its full support to the Israeli
government in its invasion of Lebanon

in 1982. Prior to 1982 there had been

AFRICA EVENTS MAY/JUNE 1986

i

i

: t
: ’

‘

|

a very large decline, starting in about
1976-77, of so-called terrorist attacks
against the US even against Israel by
the various Palestinian groups in the
Middle East and also operating out of
Europe.

However, the Reagan administration
was elected on the plank that there
was an increase of terrorist attacks
against the US under Carter and if
Reagan got elected he was going to
take vigorous action to stop it. But the
fact of the matter was that when
Reagan came into power he asked the
CIA to do a study to document the fact
that terrorism had been on the in-
crease against the US — this was in
1981. And it turned out that when the
CIA did the study, the results were
exactly the opposite. It concluded that
terrorist attacks against Americans
were on the decrease as of 1981. The
response from the Reagan administra-
tion was to order the CIA to change its
definition of terrorism in order to prove
the fact that terrorism was on the
increase against Americans. They came
up with a much broader definition; with
the new report they were able to
prove an increase. But the fact of the
matter was there was no increase.

But all this changed in 1982. The US
gave its approval to the Israeli invasion
of Lebanon and we gave our
weapons, equipment and supplies and
political, diplomatic and economic sup-
port for the Israeli army to go into
Lebanon and Israeli army wantonly
killed 20,000 Arabs — Palestinians,
Shi‘ites, Muslims, other groups. And it is
these people that are mad at the US
government and mad at the Israelis for
what happened in 1982... All that is of
course readily understandable for
these people had their families, their
friends, relatives massacred by the
Israeli army with the US support. These
people fully hold the US government
responsible for the atrocities that were
perpetrated upon Arab people in
Lebanon.

A Super-might
minors

amongst

_From the very start, the US adminis-
tration under Reagan has been show-
ing a tough muscle when dealing with
minor powers not only in the Middle
East but around the world. You had the
military invasion of Grenada and the
Lebanon; you have now the US-
sponsored invasion of Nicaragua, you
have military action against Gadaffi;
the US provides military assistance to
Savimbi in Angola. You have the US
administration assisting in one way or

AFRICA EVENTS MAY/JUNE 1986

another the South African government
which in tum has undertaken military
action against Botswana, Lesotho and
Mozambique.

But Gadaffi was a minor diversion. |
take it that he was behind some of
these things but he is not the primary
source or inspiration at all...

Quality of Evidence

| would be sceptical of any claim
that they are in possession of incon-
trovertible evidence (about Gadaffi’s
involvement in all “terrorist” attacks).
They said the same thing about the
attacks in Rome and Vienna and it
turned out to be a lie. Gadaffi was not
behind that one... When they said they
had evidence that the Soviet Union
shot down KAL 007: over Korea, they
actually produced the transcript of the
discussion between the Soviet-jet pilot
and his ground controllers. | would like
to see the same evidence here. If they
say they have the evidence, let us see
it... What we are going to have is a
repeat of the Gulf of Tonkin incident
which set the basis of US massive
intervention in Vietnam, and it has now
been documented that the Gulf of
Tonkin incident never existed and that
it has all been fabricated by the
Johnson administration to support Con-
gress giving authorisation for major
increase of US involvement in Viet-
nam...

A battery of laws

The Reagan administration is man-
ipulating this whole action of war
against terrorism to put through various
Bills in Congress. Indeed a treaty with
Britain on extradition that would const-
tute serious infringements of civil liber-
ties of people here in the US, would in
addition give the Reagan administra-
tion Congressional authorisation to en-
gage in the threat or use of force that
would clearly violate basic principles of
international law in the terms of the
United Nations Charter.

One thing they are trying to do now
is to amend the Law Powers Act that
was designed to prevent another Viet-

nam to give the President the right to

take military action under US law
against foreign states or terrorist
groups abroad, as unilaterally deter-
mined by the Reagan administration,
without having to consult with Con-
gress. And clearly the Law Powers Act
requires such consultation. The Reagan
administration has long sought to
amend the Law Powers Act out of
existence or at least abrogate it and
now they are using (“terrorism”) as a

pretext to accomplish this objective.

Even now there is talk of giving the
President powers, within this amend-
ment of the Law Powers Act, to
assassinate, actually assassinate... As |
understand it, the people who intro-
duced this legislation interpret the law
to include the authority to assassinate
anyone involved in terronst action
against the US... whatever the statute
says, this will clearly violate internation-
al law which prohibits assassination.

Quo Vadis

| think the Regan administration is
going to take the US government
down the road to further military
intervention in the Middle East against
Arab people and Arab governments,
particularly perhaps against Libya...
The next step will be to try to destroy
his oil fields and oil facilities. In
addition they will continue to press
Egypt to sanction the invasion of Libya
by the use of the Egyptian army...

A few weeks ago | was in Washing-
ton DC attending the Convention of
American Society of International Law
and the current legal advisor to the
Dep’t of State, George Abrahams
Sofaer was also there. Sofaer is also a
vigorous supporter of the state of
Israel. A very senior member of the
Reagan administration was making an
argument there with respect to the US
government decision to walk out of the
World Court. He said that the US has a
right to determine unilaterally whenev-
er it wants to use force in self-defence
and that this right was not bound by
restrictions of international law. Later
on in the conference | made a
comment that this argument made by
this very senior member of the adminis-
tration was very similar to the argu-
ment made by Nazi war criminals at
the Nuremberg tribunal... What we are
seeing now | think with the Reagan
people, not only with respect to Libya,
but their policy in the Middle East,
Grenada, Nicaragua is a concoction of
legal arguments or justifications that, to
me, are very reminiscent to some of
the arguments that have been made by

—~some of the Nazi war criminals and

rejected by the Nuremberg Tribunal.

| myself find it most distressing that
crucial representatives of my govern-
ment are trying to justify these policies
in terms of arguments that have been
made by Nazi war criminals... @

Footnote: Francis A Boyle is a Professor
of International Law at Illinois University.

53

eae mare

2—CHICAGO DAILY LAW BULLETIN

Friday, December 7, 1984

Susu —"

Lawyer’s Fr Orume: International law.

Sanctions possible in Nicaragua case

By FRANCIS BOYLE

It is a mistake to assume that the
United States government could
simply refuse to appear before the
International Court of Justice for
the purpose of litigating the Nicar-
aguan Case on the merits without
suffering .any serious sanctioning
processes against it by the interna-
tional community.

According to article 94 of the
United Nations Charter, it is up to
the U.N. Sccurity -Council to
enforce decisions of the Interna-
tional Court of Justice. To be sure,
the United Sttes government could
veto the adoption of any enforce-
ment measures by the Security
Council under Chapter 7 of the
U.N. Charter. Nevertheless, that
would not be the end of the matter.

According to the procedure set
forth in the Uniting for Peace

Ce ee

francis Boyle is a professor at
the University of Nlindis College of
Law.

Resolution of 1950, the ICJ deci-
sion could then be turned over to
the United Nations General Assem-
bly for action. Under the powers
granted to it by the Uniting for
Peace Resolution, the Gencral As-
sembly could recommend [not re-
quire} that all U.N. members adopt
on their own accord a specific set of
sanctions against the United States
government for its willful refusal to
obey an ICJ decision on the merits
that was favorable to Nicaragua.

These measures could include the
complete or partial interruption of
economic relations and of rail, sea,
air, postal, telegraphic, radio and
other means of communication, and

the severance of diplomatic rela-.

tions. Of course such enforcement
measures would have to be adopted
by a two-thirds vote of the United
Nations Gencral Assembly. But it

_ is no longer the case that the United

States can effectively impose its
will upon that body. ,

Admittedly, if the General As-
sembly were to adopt such sane-

tions, they would not be binding
upon member states but only rec-
ommendatory. Nevertheless the

adoption of such sanctions by the

Gencral Assembly would provide
the legal basis for any state so
willing to carry them out without
being held legally responsible for
violating any rules of customary
international law to the contrary or
any terms of the United Nations
Charter.

Moreover, because the United
States .government originally pro-

posed and sponsored the passage of

the Uniting for Peace Resolution in
the General Assembly for the
express purpose of circumventing
the abusive exercise of the veto
power by the Soviet Union in the
Security Council during the Korean
War, the Reagan administration
would be effectively estopped to
deny that such collective measures
against the United States by the
membership of the General Assem-

bly were Jawful..:.
During the Korean War, at the °

instance of the U.S. government,

/

the General Assembly did recom-
mend similar sanctions against
North Korea and the Peoples
Republic of China and a good

, number of members of the interna-

tional community at that time put
them into effect.

Furthermore, in the Certain Ex-
penses Case, the International
Court of Justice gave its stamp of
approval to the Uniting for Peace
procedure when it was used to
Create the 1956 United Nations
Emergency Force (UNEF) for the
purpose of facilitating the termina-
tion of the Middle Eastern War of
that year.

Since the United Sttaes govern-
ment took the lead role in arguing
the Certain Expenses Case before
the International Court of Justice,
it would be extremely difficult for
the Reagan administration to repu-
diate the World Court's tacit
approval of the Uniting for Peace

. procedure without running the risk
‘of being accused of rank hypocrisy

by the entire world community.

AMERICAN
SOCIETY OF
INTERNATIONAL
LAW

PROCEEDINGS
of the |
81st ANNUAL MEETING

BOSTON, MASSACHUSETTS
APRIL 8-11, 1987

445

INTERNATIONAL HUMAN RIGHTS AND U.S. CouRTs:
MIGHT CONGRESS AND OTHER LEGISLATURES ;
NURTURE NEEDED CHANGE?

The panel was convened by the Chair, Robert J. Drinan, S.J -»** at 2:30 p.m., April
10, 1987.

REMARKS BY FATHER DRINAN

Many people in the Congress and in the international human rights community
have had a dream for many years. For example, it is well known that piracy and
slavery are crimes forbidden by international law. A pirate or someone engaging in
the slave trade can be apprehended and convicted anywhere in the world. Similarly,
the dream is that every violation of international law or of some recognized human
right would also be an international crime. If that dream is realized some day, torture,
wrongful detention and all the comparable violations of human rights would in fact be
punishable all over the world, wherever the perpetrators are apprehended.

Everyone had a great vision of enforcing human rights after Filartiga v. Pena-Irala,!
in which citizens of Paraguay living in the United States were able to sue another
Paraguayan who was visiting the United States and who had tortured their son in
Paraguay. I was disappointed, as everyone was, that Tel-Oren y. Libyan Arab Repub-
lic? didn’t expand upon and apply the reasoning of Filartiga. 1 was very pleased,
however, that two years ago, the American Bar Association’s House of Delegates rati-
fied in principle taking the Foreign Sovereign Immunities Act, expanding it, clarifying
it, and making it applicable to all violations of international law. That legislation has
already been filed. Congressman Rodino is very interested in it. We are therefore
interested, in this subcommittee and in the House Judiciary Committee and the House
Foreign Affairs Committee, in changes in the U.S. Code.

All over the world, there is an awakening as to the possibility of enforcing interna-
tional human rights in domestic courts. Many scholars have been writing about that
for some time. We therefore welcome our five distinguished witnesses. They’ll pre-
sent their testimony for roughly five minutes each.

**Professor of Law, Georgetown University Law Center.
1630 F.2d 876 (2d Cir. 1980).
2726 F.2d (D.C. Ct. App. 1984), cert. denied, 470 U.S. 1003 (1985).

452

REMARKS By FRANCIS BOYLE*

During the past five years of the Reagan Administration, I have given advice, coun-
sel and assistance to individuals and groups who have engaged in acts of nonviolent
civil resistance against various aspects of the Reagan Administration’s foreign policy,
particularly to the Nuclear Freeze Movement, the Catholic nonviolent civil resistance
group Pax Christi, the Anti-Apartheid Movement, the Sanctuary Movement, and the
Pledge of Resistance Movement. I also assisted individuals who have engaged in non-
violent civil resistance to protest the Reagan Administration’s foreign policy toward
nuclear weapons, Grenada, Central America, Southern Africa, Lebanon, Libya, and
West Bank and Gaza Strip.

Since January 1981, the world has witnessed a U.S. Government that demonstrates
little if any respect for fundamental considerations of international law and organiza-
tion. We have seen instead a comprehensive and malicious assault upon the integrity
of the international legal order by a group of men and women who are thoroughly
Machiavellian in their perception of international relations and in their conduct of
both foreign and domestic affairs. The Reagan Administration’s foreign policy repre-
sents a gross deviation from those basic rules of international deportment and civilized
behavior that the U.S. Government has traditionally promoted for the entire world
community. Even more seriously, in several instances, specific components of the
Reagan Administration’s foreign policy have constituted ongoing criminal activity
under well-recognized principles of both international and domestic law. In direct
reaction to the Reagan Administration’s wanton attack upon the international and
domestic legal orders, large numbers of American citizens have engaged in various
forms of nonviolent civil resistance activities to protest against distinct elements of the
Reagan Administration’s foreign policies. Many of the very best and most admirable
people of contemporary American society have been treated as if they were common

*Professor of Law, University of Illinois.

453.

criminals and prosecuted and punished more severely than murderers, robbers and
rapists. As Ramsey Clark has said, our jails are filling up with saints.

Due to the personal popularity of President Reagan, Congress has proven so far to
be pusillanimous when it comes to the enforcement of respect for its own laws on the
part of the executive branch of government. The courts are essentially powerless to
prevent or impede the gross international lawlessness of the Reagan Administration.
We have witnessed the total breakdown of the constitutional doctrine of separation of
powers when it comes to the illegal and often criminal conduct of foreign policy by the
Reagan Administration. Nonviolent civil resistance activities that are designed to pre-
vent or impede ongoing criminal activity by members of the Reagan Administration
under well-recognized principles of international and domestic law represent the last
hope we, the American people, have to prevent the Reagan Administration from mov-
ing even further down the path of lawless violence in South Africa, Central America,
the Middle East and nuclear warfare with the Soviet Union. If you aa believe me,
just read the Tower Commission Report.

Under the First Amendment to the U.S. Constitution, eal resistance protesters are
exercising their right “peaceably to assemble and to petition the government for a
redress of grievances.” Notice that the First Amendment does not require their as-
sembly to be lawful in a positive technical sense but only that it be peaceful. Ongoing
criminal activities committed by officials of the government are certainly the type of
grievances that people should have a right to petition for redress against by means of
nonviolent civil resistance. Therefore, I submit that Congress must recognize by stat-
ute that the First Amendment includes within its scope the right of Americans to
engage in acts of nonviolent civil resistance to prevent or impede ongoing criminal
activity in the conduct of foreign affairs by the U.S. Government.

Father DRINAN: As you know, this hearing is on “International Human Rights
and U.S. Courts: Might Congress and other Legislatures Nurture Needed Change?”
Before I yield to our distinguished Republican, might I ask if you have any specific
recommendation?

Professor BOYLE: Well, legislation along the lines of what I described, to establish
that individuals have a right to engage in nonviolent civil resistance to prevent or
impede ongoing criminal activity by members of the U.S. Government, whether under
U.S. domestic law or principles of international law.

Mr. HANNUM: Professor Boyle, you have launched a tirade against the foreign
policy of this government, which is of course beyond the competence of this particular
subcommittee, and you have asserted that the Executive is acting illegally; that Con-
gress is acting fearfully at best; that the courts are powerless; and that, yet, the major-
ity of the American people support the President. It seems that what you’re asking us
to condone is the truth according to Professor Boyle, as opposed to the truth accord-
ing to any of the democratic traditions you so roundly supported. If it is not the truth
according to Professor Boyle, it must be the truth according to international law. Yet,
in the case brought by Australia and New Zealand against France to stop nuclear
testing in the South Pacific, the World Court certainly had every opportunity to de-
clare the use, testing or threat of nuclear weapons to be contrary to international law.
It did not avail itself of that opportunity. I ask again the questions that I asked of the
previous witness: where do you find any support for the proposition that the use or
the threat of nuclear weapons is a violation of international law?

Professor BOYLE: First, the majority of the people do not support the Reagan Ad-
ministration’s policies. They might support the President personally, but the opinion
polls show there is little if any support for many of his policies. Take, for example,

ee 6 ees eee

454

Central America. A majority of the American people do not support the Reagan
policies toward Nicaragua. We have two World Court decisions right on point declar-
ing that the Reagan policies toward Nicaragua violate basic norms of international
law. There are also literally tens of thousands of people in the United States, all over
the country, who are planning, preparing, committing, or prepared to commit acts of
nonviolent civil resistance to protest one aspect or another of the Reagan Administra-
tion’s foreign policy. As for authority for the proposition that the threat of using
nuclear weapons is illegal, I cite to you the proceedings of the London Nuclear War
Tribunal that was held last year. I gave testimony to that tribunal.

Mr. HANNUM: It was a private group?

Professor BOYLE: It was a group consisting of three Nobel prize winners and Pro-
fessor Richard Falk. . |

Mr. HANNUM: Was Henry Kissinger among the Nobel prize winners there?

Professor BOYLE: No, he was not. And I also cite to you the case of People y.
Jarka.* In that case the court was dealing with the Reagan Administration’s foreign
policy toward Central America and also the offensive nuclear weapons buildup of the
Reagan Administration. It involved a protest before the Great Lakes Naval Training
Center. Defendants were acquitted of all charges by use of the necessity defense.
With respect to Central America, the greater public and private injury was argued
successfully to be crimes against peace, crimes against humanity, war crimes, the Ge-
neva Convention, violations of the U.N. Charter, the Organization of American States
Charter, and the International Court of Justice 1984 Interim Order of Protection on
behalf of Nicaragua. To respond to Mr. Carey’s concern, we proved all these matters
in the Jarka case, and we do it continually all the time, in Pledge of Resistance cases
and in anti-Central Intelligence Agency campus recruitment cases around the coun-
try. So we have no problem with establishing either our facts or our law to the satis-
faction of judges and juries.

Mr. HANNUM: Which is it, facts or law?

Professor BOYLE: Both. We established both. But with respect to your specific
point on nuclear weapons, the judge in Jarka delivered the following instructions to
the jury: “The use or threat of use of nuclear weapons is a war crime or an attempted
war crime because such use would violate international law by causing unnecessary
suffering, failing to distinguish between combatants and non-combatants, and poison-
ing its targets by radiation.” This instruction by Judge Witt represented a successful
culmination of four years of vigorous efforts by members of The Lawyers Committee
on Nuclear Policy. Indeed, since then we have argued this matter successfully in
numerous antinuclear cases around the country. The Lawyers Committee on Nuclear
Policy will be happy to make available to you their extensive studies of the illegalities
of nuclear weapons under international law. Briefly stated, of course, this creates seri-
ous problems under the Nuremberg Principles.

Professor SHELTON: First, I would like to thank the witness for saving me the
necessity of replying to my Republican colleague by providing some very impassioned
and, I think, accurate testimony concerning this administration’s human rights poli-
cies. I do have a couple of questions. It seems that your proposal is in some respects
narrower, and in some respects broader, than the Human Rights Advocate’s statute,
in that, as I heard you, it would be limited to nonviolent activity. A necessity defense

then could not be used, for example, in a political assassination case, is that correct?

‘Docket No. 8-CM-2202 (Cir. Ct., Waukegan, III. 1984). See F. Boyle, DEFENDING CIVIL RESISTANCE
UNDER INTERNATIONAL LAw (1987).

455

Professor BOYLE: Well, of course, the previous witness would have to speak with
respect to her own statute. I do not believe that our statutes are mutually exclusive. I
think mine is a bit broader. Hers was limited to the defense of necessity with respect
to crimes against humanity.

Professor SHELTON: I haven’t gotten to that point yet.
Professor BOYLE: What we’re trying to do is simply to give defendants in political
protest cases a defense that they were taking steps necessary and reasonable under the

circumstances to prevent the ongoing commission of international and domestic
crimes by members of the U.S. Government.

Professor SHELTON: But it would be only for nonviolent actions.

Professor BOYLE: I am currently proposing that it only be nonviolent, yes, because
I am conceiving this legislation as implementing legislation, as it were, for the First
Amendment to the U.S. Constitution. I am not attempting here to get into the ques-
tion of violent protest. It is a separate issue. For example, at common law, the neces-
sity defense is permitted in respect to crimes of violence. Like many of the other
affirmative defenses recognized at common law, prevention of crime does permit acts
of violence, but in my proposal I am not requesting that we go that far.

Professor SHELTON: I raise the question because one reading of international
human rights norms would prohibit completely, for example, the use of political assas-
sination. My other question is on the broader aspect of your proposal. At one point
you referred to violations of international law and at another point, illegal actions by
the U.S. Government. Are you implying that all violations of international law would
be criminal, and if not, do you feel it would be useful to include in a statute some
direction as to how to identify what violations of international law are in fact interna-
tional crimes? *

Professor BOYLE: At this point, I would like to keep it fairly narrow. I believe that
not all violations of international law are international crimes. What I am proposing
here is a statute that would be limited to peaceful nonviolent protest of those viola-
tions of international law that constitute ongoing criminal activities under well-recog-
nized principles of international law. Again, the analogy here is to the common-law
right recognized in most jurisdictions that individuals do have a right to take neces-
sary, proportionate, reasonable steps to prevent the ongoing commission of a crime. If
you’re walking down the street and you see some poor woman being raped, of course
you can take measures to prevent this from happening. We're simply trying to apply a
basic common-law principle to the notion of international crimes.

With respect to the question of proof and limitations, that would be done in the way
any question of fact or even law would have to be proved in court, by expert witness
testimony, by documents, things of this nature. But if you’re prepared to limit it to a
narrower scope and cite a few particular sources, we would certainly be willing to
consider that and be happy to sit down with you and try to codify what we believe to
be the basic elements of international criminal law.

Mr. CAREY: What would you say about a putative military figure (should we call
him “South?”) who is assigned to the White House and becomes involved in breaches
of existing law or what seem to be breaches, for which he is indicted. Do you see
anything in the proposition put forward by Ms. Coliver that would prevent this de-
fendant from being entitled to an instruction to the jury based on the defense of neces-
sity even if his acts were not nonviolent?

Professor BOYLE: I think you hit it right on the head. Colonel South-North was

not engaged in nonviolent types of activities but extremely violent activity, and I
‘would have serious problems trying to support or draft a statute that would counte-

456

nance outright physical assaults on the integrity of the human being for any reason
whatsoever. So in theory you are correct, at common law, necessity as a defense is
permissible even with respect to the commission of violent crimes to avoid a greater
harm, but I am not trying to propose that here. All I am trying to do is to include
within the concept of recognized defenses the notion that an international crime is just
like a domestic crime, and there should be a defense with respect to that.

There also seems to be an assemption that the people who engage in these protests
are committing civil disobedience. That is incorrect, and I wish to disagree with all
due respect to the majority counsel. The lawbreakers are the people in the govern-
ment. The people outside who are protesting by peaceful nonviolent means are not
breaking any law; they are acting to prevent violations of law. That is the difference to
some extent between my proposal and the preceding proposal.. The preceding propo-
sal assumes that these people have committed a crime that will be balanced with some
other crime. My proposal operates under the assumption that they have committed
no crime at all. It’s peaceful, nonviolent exercise of their First Amendment rights for
the purpose of preventing crimes. So I do see a jurisprudential difference in the two
proposals. But, of course, if the committee would like to support the preceding propo-

sal as opposed to mine, that would be fully acceptable to me and the people I work
with.

aa aS Tee

Boyle’s Law

Professor Francis A Boyle is one of the few Amer-
ican scholars prepared to stand up and speak up on
the more controversial aspects of the US foreign
policy — and damn the consequences. It is a costly

vocation.

lt means personal

and _ professional

harassment and hate-letters in the post. Yet this
does not diminish Boyle’s commitment to what he
believes is right. Africa Events spoke to Professor Boyle

soon after his visit to Libya. Here are excerpts:

On what Reagan has been up
to

lt is important to keep in mind that
the Reagan administration has been
attempting to overthrow and if neces-
sary probably assassinate Kaddafi
since they came to power in 1981.

One of the first projects submitted by
the CIA Director William Casey to the
Congressional Committee dealing with
the oversight of Intelligence operations
was a plan to overthrow Kaddafi. To
the best of my knowledge, that has
been standing US government policy
since Reagan came in. And they have
attempted to carry this out either
directly themselves or indirectly with

various Libyan exile groups around the
world.

This is a clear-cut violation of the UN
| Charter and whatever disagreements
and disputes the US has with Kaddafi,
there is no justification for undertaking
measures to overthrow him.

The Libyans say they have the right
to what, we international lawyers call,
the closing line over the Gulf of Sirte
and treat the Gulf as internal waters.
This is a doctrine that is  well-
recognized in international law and the
Geneva Convention of 1958. It has
been applied by the US government
itself. However, the US government has
denied that Libya could draw a closing
line to treat the Gulf of Sirte as internal
waters. This is a simple legal question
and could readily be resolved by the
International Court of Justice. Libyans
have a good track record of submitting
such disputes to the ICJ. The Carter
administration, in recognition of this,
decided not to send the 6th Fleet to
manoeuvre in the Gulf of Sirte. Reagan
came in and immediately changed the

policy.

On Americans in Libya
Reagan ordered back ail Americans

AFRICA EVENTS FEBRUARY 1986.

by 1 February 1986. Probably he has
the authority to do this under the terms
of the US constitution and laws in-
volved. | can tell you, however, that
those Americans were under no threat
at ail in Libya. The Libyans are very
happy to have Americans working
there. Americans are well treated in
Libya. Indeed the Libyans have bent
over backward to be good to the
Americans and to protect them.

The reason why they are ordering
them home — and Reagan has even
stated this — is so that after all the
Americans are out of there, they will
be free to take military action against
Kaddafi. :

The same applies to the recent asset
freeze. | think the Libyan assets were
frozen in the US as well as in the
branches of US multinationals abroad
in order to provoke Kaddafi_ into
nationalising US assets in Libya and
then using that as a pretext for further
retaliatory actions against Kaddafi. This

is very similar to what happened in
Cuba.

On Kaddafi obsession

The American people and the Amer-
ican government have never been able
to understand strong, patriotic Arab
nationalists such as Kaddafi and the
man Kaddafi has modelled himself on,
Nassir. Secondly, the American gov-
ernment is incredibly prejudiced in
favour of Israel and against Arab
people in the Middle East. The fact of
the matter is that Kaddafi alienates
very strongly and provokes great
opposition in the news media because
of the strident stand he has taken
against Israel. When | was in Libya and
they were asking me why there is so
much hostility to Kaddafi in the US, |
pointed out that it was because of the
influence of the Israeli lobby both in
the Congress and the media.

Legality of Sanctions

Under public international law, |
think there is absolutely no validity at
all for anything that Reagan is doing in
the US against Kaddafi. These are
clearly provocative measures.

Under US domestic law, however,
Reagan does appear to have all the
constitutionality he needs to freeze
Libya’s assets within the territorial juris-
diction of the US. This power is derived
from what is known as the Internation-
al Emergency Powers Act of 1977. The
Act was used by President Carter to
freeze !ranian assets that were present
in the US during the Iranian hostages
crisis.

However, a good amount of the
Libyan assets are not held by the US
banks in the territorial jurisdiction of the
US. They are held in the foreign
subsidiaries of American banks in Euro-
pean countries, probably in London,
perhaps in Switzerland, perhaps in
Germany.

The Reagan attempt to freeze these
assets, in my opinion, is clearly an
extra-ternitorial application of US law
that is in violation of international law.
| think ail the European governments
should have stated to Reagan that they |
will not allow the US government to
exercise extra-territorial jurisdiction.

This principle was firmly established |
by the European governments during
the sanctions over the Soviet gas
pipeline. Reagan attempted to order
the subsidiaries of US muitinationals
doing business abroad not to partici-
pate in the gas pipeline. When they
refused to go along, he imposed
sanctions. The entire EEC got upset and
made a very strong demarche with the
US government. Eventually Reagan
backed down. | am very surprised that
under the present circumstances, Euro-
pean governments have not protested
in a similar way. | think the reason they
have not protested is simply an accom-
modation to the Reagan administration
with respect to Kaddafi @

Francs A Boyle is a Professor of
International Law at Illinois University.

4]

THE CHAMP AIGN-URBANA NEWS-GAZETTE Thursda

, January 23. 1986

U.S. trying to provoke Libya, Ul professor says

By MICHAEL GARVIN
News-Gazette Staff Writer

The U.S. government is trying
provoke Libyan leader Moammar
Khadafy into a confrontation to jus-
tify military strike against the
country, says a University of Illi-
nois professor.

Speaking at a Champaign Lions

Club meeting Wednesday, Francis
Boyle of the UI College of Law ac-
cused the Reagan administration of
trying to set the stage for a military
attack on Libya,

Boyle, an international law spe-
cialist, has opposed President
Reagan’s Middle East policy in the
past. Most recently, Boyle objected
to the United States’ seizing an
Egyptian airliner that carried four
suspected Palestinian terrorists
from the hijacking of the Italian
cruise liner Achille Lauro. Boyle

contends the U.S. action violated in-,

ternational law.

The professor visited Libya in
May to lecture and meet with gov-
ernment leaders. He also is a critic
of what he considers smear cam-
paigns against Cuba and Nicaragua,
two countries also at odds with the
United States.

ve SE hte

He maintains Reagan has had
Khadafy at the head of a “hit list
from the very start.”

“They are using these terrorists
attacks as a pretext for creating a
crisis with Khadafy in the hopes it
(will) serve as a basis for a military

- confrontation,” Boyle said.

REAGAN HAS LONG claimed that
Libya is a haven for terrorists and
that Khadafy supports and directs
terrorist attacks. All US. citizens re-

- cently were asked to leave Libya to
ensure their safety. Boyle says the

request was unnecessary.

Americans are in “absolutely no
danger at all from the Libyan gov-
ernment,” Boyle said, labeling the
warning as an attempt to “stir up
the American people to a point
where they. would be prepared to
sanction some type of action
against Khadafy.

“The Reagan administration does
not want to negotiate. They clearly
want a military confrontation.”

U.S. provocation was the cause of
@ 1981 incident in which American
pilots shot down two Libyan planes
cover the Gulf of Sidra, Boyle con-
tends. Libya claims the Gulf of Sid-

ra as domestic waters, while the
United States contends the gulf is
open to all vessels, including mili-
tary ships.

_WHILE PRESIDENT CARTER had.

chosen to avoid a possible conflict
by not sending American military
ships into the area, Reagan chose to
agitate the Libyans and sent a Navy
detachment into the Gulf of Sidra,
causing the confrontation, Boyle
said.

tled the matter in the International
Court of Justice, the professor said.

Rather than taunt the Libyans, ;
the United States should have set- |

Another such incident could re- Yala

sult in a war, Boyle warns,

“What concerns me is the Gulf of
Sidra is going to become the Gulf of
Tonkin of the 1980s.” " se 8

An altercation in the Gulf of Ton-
kin in Vietnam — which many be-
lieve was intentionally provoked by
the United States — was used as a
rationale for increased involve-
ment in the Vietnam War.

Boyle also said Libyans have a
good lifestyle under Khadafy, in
comparison with other Middle East
countries. Oil revenues are dis-

FRANCIS BOYLE

persed among the nation’s 3 million
people to subsidize costs for health —
care, transportation and housing,
he said. Every lik driver in

Libya has a car; 4

ih
. Defending Nonviolent
Civil Disobedience

Against the Reagan Administration
Under International Law

Francis A. Boyle

ince January of 1981, the people of the world have witnessed a

U.S. government that demonstrates little if any respect for fun-

damental considerations of international law and organizations, let
alone appreciation of the requirements for maintaining international
peace and security. What we have watched instead is a comprehensive
and malicious assault upon the integrity of the international legal order
by a group of men and women who are thoroughly Machiavellian in
their perception of international relations and in their conduct of both
foreign and domestic affairs. This is not simply a question of us giving or
withholding the benefit of the doubt from a U.S. government charged
with the security of both its own citizens and those of its allies in
Europe, the Western Hemisphere, and the Pacific. Rather, the Reagan
administration’s foreign policy represents a gross deviation from those
basic rules of international deportment and civilized behavior that the
United States government has traditionally promoted for the entire
world community. Even more seriously, in several instances, the Reagan
administration’s foreign policy has constituted ongoing criminal activity
under well-recognized principles of both international law and U-S.
domestic law.

In direct reaction to and in protest of the Reagan administration’s
wanton attack upon the international and domestic legal orders,
numerous American citizens have engaged in various forms of non-
violent civil disobedience. For example, the Reagan administration’s

FRANCIS A. BOYLE is a Professor of Law at the University of Illinois College of

Law, Champaign, Illinois 61820. Professor Boyle received his J.D. and Ph.D. from

Harvard University. He has published widely in the field of international law.
Copyright (c) 1985 by Francis A. Boyle. All rights reserved.

110 CRIME AND SOCIAL JUSTICE No. 24

In Defense of Civil Disobedience 111

offensive nuclear weapons build-up has generated protests by numerous
groups and individuals against U.S. nuclear weapons installations, facili-
lies, programs, and personalities around this country and abroad. In this
regard, the Greenham Common Women and the Catholic nonviolent
civil disobedience group known as Pax Christi are two of the most prom-
inent movements.

Similarly, the Reagan administration’s inexcusable policy of so-called
“constructive engagement” toward the criminal apartheid regime in
South Africa has spawned a nationwide campaign against apartheid and
U.S. complicity. Protests have been mounted against, for example, the
South African Embassy in Washington, D.C., South African consulates
around the country, and business establishments that sell krugerrands.
On college campuses, students are vigorously demanding that their
administrators divest university portfolios of all stock held in American
companies that do business in South Africa. These protests have led to
numerous arrests and prosecutions for several types of nonviolent civil
disobedience activities designed to produce official and unofficial con-
demnation of and sanction against apartheid.

The Reagan administration’s illegal military intervention in El Sal-
vador, Honduras, Costa Rica, and Nicaragua has probably been
responsible for the greatest number and degree of nonviolent civil disobe-
dience activities in America today. First comes the so-called “Sanctuary
Movement,” which now consists of 237 American church and synagogue
communities that are currently providing sanctuary to refugees fleeing
the conflicts of Central America in dire fear for their lives. In explicit
violation of the requirements of both the 1967 Protocol to the U.N. Con-
vention Relating to the Status of Refugees and the U.S. Refugees Act of
1980, the Reagan administration has refused to give these refugees pol-
itical asylum so as not to undercut the pseudo-legitimacy of the U.S.-
backed military dictatorships that currently rule El Salvador and Guate-
mala. To sustain this reprehensible policy, the Reagan administration has
now launched a vendetta against the church people who have organized
the sanctuary movement because of their deeply held religious convic-
tions by prosecuting them to the absolute limit of the law, if not beyond,
despite the protection afforded by the First and Fourth Amendments to
the U.S. Constitution.

Last, but not least, comes the so-called Pledge of Resistance Move-
ment, whose 45,000 members have taken a vow that in the event the
Reagan administration decides to launch an invasion of Nicaragua, its
membership will engage in a nationwide campaign of nonviolent civil
disobedience activities. The Pledge of Resistance Movement has already
called out its members once to demonstrate against the recent vote by
Congress to provide so-called nonmilitary assistance to the U-S.-
supported contra mercenary bands that are illegally opposing the legiti-
mate government of Nicaragua in violation of the U.N. Charter, the OAS

112 BOYLE

Charter, and the Geneva Conventions of 1949. These activities consisted
of sit-ins and other forms of nonviolent protest conducted at the offices
of U.S. representatives and senators who voted to repeal the so-called
Boland Amendment that had prohibited assistance to the contras since
its enactment in October 1984.

Probably on a regular basis there are thousands of people in the U.S.
who are planning, committed to, or actively participating in nonviolent
civil disobedience activities directed against some aspect of the Reagan
administration’s foreign policies. In my opinion, these activities repre-
sent a positive development for the future role of democratic government
in the U.S. Due to the personal popularity of President Reagan, Congress
has proven to be pusillanimous when it comes to the enforcement of
respect for its own laws by the executive branch of government. More-
over, the courts are essentially powerless to prevent or impede the gross
international lawlessness of the Reagan administration. Even when given
a rare Opportunity to exercise some small degree of restraint on executive
branch excesses in foreign affairs, judges have generally decided to defer
to presidential lawlessness under the so-called doctrines of “political
question” or “judicial restraint.” For the most part, the judiciary has
completely abnegated any constructive role it might have played in sup-
port of the popular demand that American foreign policy be conducted
in accordance with the requirements of both international and domestic
law.

Thus we have witnessed a total breakdown of the constitutional doc-
trine of separation of powers when it comes to the illegal and oftentimes
criminal conduct of foreign policy by the Reagan administration. Con-
sequently, many citizens have decided to act on their own cognizance in
order to demand that the Reagan administration adhere to the principles
of international law, of U.S. domestic law, and of our own Constitution
in foreign affairs. Historically, such actions have been defined to con-
stitute classic instances of nonviolent civil disobedience. And the tradi-
tional admonition for those who knowingly engage in nonviolent civil
disobedience has always been that they must meekly accept their punish-
ment for having performed a prima facie breach of the positive law as a
demonstration of their good faith and moral commitment. In my opin-
ion, nothing should be further from the truth.

Here I would like to suggest a different way of thinking about non-
violent civil disobedience to prevent or impede ongoing criminal activity
by members of the Reagan administration. Namely, such activities repre-
sent the last constituuonal avenue open to the American people to
preserve their democratic form of government with its historical commit-
ment to the rule of law, and thus the last hope we have to prevent the
Reagan administration from moving even further down the path of law-
less violence in Southern Africa, military intervention in Central
America, and nuclear warfare with the Soviet Union. Under the First

In Defense of Civil Disobedience 113

Amendment to the U.S. Constitution, these protesters are exercising their
right “peaceably to assemble, and to petition the government for a re-
dress of grievances.” Note that the First Amendment does not require
their assembly to be “lawful” in a positivist technical sense, but only that
it be peaceable. Similarly, ongoing criminal activity committed by mem-
bers of the government itself is certainly the type of grievance that people
should have a right to petition for redress by means of nonviolent civil
disobedience. I would argue, therefore, that we must recognize the exis-
tence of a First Amendment right for the people to engage in acts of non-
violent civil disobedience, specifically intended for the purpose of
preventing or impeding ongoing criminal activity in the conduct of U.S.
foreign policy.

For the time being, the net effect of this injunction would be that the
final arbiter of the constitutionality, technical legality, and overall legiti-
macy of such acts of nonviolent civil disobedience becomes the Ameri-
can people themselves. In particular, under the Sixth and Fourteenth
Amendments to the U.S. Constitution, those individuals who have been
indicted for alleged prima facie breaches of positive law by engaging in
acts of nonviolent civil disobedience are generally entitled to a trial by a
jury of their own peers. Thus, it is the American criminal jury system
that shall prove to be the last bastion of democracy and law against the
Reagan administration’s pernicious assault on both. I would submit that
under the existing political conditions in the U.S., our jury system has
now become a long-overlooked fourth institution in the separation of
powers system created by the Constitution.

Of course, the American jury system consists of common, everyday,
ordinary citizens. Most Americans consider themselves to be law-abiding
and peaceful, and strongly believe that their government should be law-
abiding and peaceful as well. The fate of those prosecuted for nonviolent
civil disobedience has thus been committed by the Constitution to the
common sense of decency, justice, fair play, and peaceableness, so
characteristic of the members of an American jury. If members of Amer-
ican juries are made aware of the Reagan administration’s gross interna-
tional lawlessness, I do not think they will convict those who engage in
acts of nonviolent civil disobedience for the express purpose of stopping
it.

If juries refuse to convict these protesters, then it is obvious that the
latter have committed no crimes. In essence, the jury would have ratified
sub silentio the argument that such protesters were merely engaged in an
exercise of their First Amendment right to peaceably assemble and to
petition their government for a redress of grievances.

It is in this fashion, then, that I believe we should come to reconcep-
tualize what had previously been thought of as acts of nonviolent civil
disobedience. These are not crimes and the people who engage in them
are not criminals—at least until they have been proven to be guilty

114 BOYLE

beyond a reasonable doubt by a jury. Hence it is no longer the case that
we should expect those who have performed acts of nonviolent civil dis-
obedience to meekly accept any punishment for having committed an
alleged prima facie breach of a positive law.

Over the past several years of the Reagan administration, I have been
involved in giving advice, counsel, and assistance to individuals and
groups who have engaged in acts of nonviolent civil disobedience
directed against various aspects of the Reagan administration’s foreign
policy. In one capacity or another, I have worked with the Anti-Nuclear
Protest Movement, the Sanctuary Movement, the Anti-Apartheid Move-
ment, and the Pledge of Resistance Movement, among others. I have also
participated in the defense of individuals who are not part of formal
movements but nevertheless have resorted to nonviolent civil disobedi-
ence to protest the Reagan administration’s foreign policies toward
nuclear weapons, Central America, Southern Africa, and the Middle East.

Throughout these years of opposition to the Reagan administration’s
international lawlessness, we have experienced many disappointments,
setbacks, and failures in the defense of those engaged in nonviolent civil
disobedience. Too many brave, courageous, and principled people have
gone to jail or otherwise been punished simply for opposing the ongoing
commission of international and domestic crimes by the Reagan
administration. Some of the very best and most admirable people pro-
duced by contemporary American society have been treated as if they
were common criminals, and oftentimes punished more seriously than
murderers, robbers, and rapists.

That is, until now. Just recently, two criminal cases have produced a
major breakthrough for the defense of those engaged in nonviolent civil
disobedience against the Reagan administration under international law:
People vs. Jarka, No. 002170, in the Circuit Court of Lake County, Wau-
kegan, Illinois; and Chicago vs. Streeter, No. 85-108644, in the Circuit
Court of Cook County, Chicago, Illinois. In both cases, the defendants
were acquitted by invoking the traditional common law defense called
“necessity” as incorporated into the Illinois Criminal Code. According to
Illinois Revised Statutes, Chapter 38, Paragraphs 7-13, conduct which
would otherwise be an offense is justifiable by reason of “necessity” if
the accused was without blame in occasioning or developing the situation
and reasonably believed such conduct was necessary to avoid a public or
private injury greater than the injury which might reasonably result from
his own conduct.

In the Jarka case, the defendants were protesting U.S. military inter-
vention in Central America and the Reagan administration’s offensive
nuclear weapons build-up at the Great Lakes Naval Training Center on
November 14, 1984. The defendants were charged with the relatively
serious crimes of mob action and resisting arrest, despite the fact that
they had only linked arms and sat down in the middle of the road in

In Defense of Civil Disobedience ds

front of the base. After a three-and-one-half-day courtroom trial in which
defense attorneys produced eight expert witnesses on nuclear weapons,
Central America, and international law, the defendants were acquitted of
all charges on April 15, 1985.

Even more significantly, to the best of my knowledge, for the first
time ever in the annals of American jurisprudence, the judge in the Jarka
case actually instructed the jury that the threat or use of nuclear weapons
violated international law. To quote the exact language of this path-
breaking instruction as read to the Jarka jury by Judge Alphonse F. Witt:
“The use or threat of use of nuclear weapons is a war crime or an
attempted war crime because such use would violate international law by
Causing unnecessary suffering, failing to distinguish between combatants
and noncombatants and poisoning its targets by radiation.” Judge Witt’s
courageous decision to issue this instruction represented the successful
culmination of four years of vigorous efforts by the members of the Law-
yers Committee on Nuclear Policy, which had been publicly arguing this
position since its foundation in 1981.

The stunning victory in Jarka was immediately used as a precedent
for establishing the defendants’ right to the “necessity” defense in the
Streeter trial, which was held approximately one month later in Chicago.
Indeed, there was close cooperation between the respective teams of
defense attorneys in Jarka and Streeter, and this author served as a con-
sultant to both groups of attorneys on questions of international law. In
the Streeter case, the defendants attempted to meet with the South Afri-
can Consul at his office in Chicago to discuss that country’s policy of
apartheid. When he refused to do so, the defendants refused to leave the
corridors of a building outside the consulate offices and were eventually
arrested and indicted for violating a provision of the City of Chicago
Municipal Code prohibiting ‘unlawful trespass.” To substantiate their
defense of necessity, the defense attorney team presented at trial several
expert witnesses who testified to the effect that the government of South
Africa has been committing crimes by its policies of apartheid and that
the defendants acted reasonably in their efforts to prevent the continua-
tion of these crimes. Once again, in this case too, the jury acquitted the
defendants of all charges brought against them.

Because of the precedential significance of Jarka, the Editors of
Crime and Social Justice have kindly offered to permit the publication of
a slightly edited version of the expert witness testimony this author gave
to the jury on international law as it relates to nuclear weapons and U.S.
intervention in Central America. This testimony is printed here in the
hope that it will be useful in the numerous attempts now being made
around the country by defense attorneys who are invoking the Jarka and
Streeter cases as precedents for the defense of other individuals who have
engaged in acts of nonviolent civil disobedience against the Reagan
administration’s foreign policy under principles of international law. It is

116 BOYLE

our hope that my Jarka testimony will be of assistance to these protes-
ters and their attorneys, and of interest to their supporters and sympa-
thizers.

It is crucial for preserving the future of our democratic system of gov-
ernment, with its historical commitment to the rule of law both at home
and abroad, that we conscientiously and systematically pursue analogous
defense strategies under international law. If properly publicized, each
acquittal or hung jury will encourage other private citizens to engage in
similar nonviolent civil disobedience activities. In the case of an acquit-
tal, a jury of their peers would have already determined that the protes-
ters’ actions were definitely not criminal behavior, but rather perfectly
lawful conduct. In the case of a hung jury, the presumption of innocence
with respect to such activities would still remain undisturbed. Further-
more, a series of acquittals or hung juries in such nonviolent civil disobe-
dience cases will send a strong message to those in power that the
ordinary people of America who comprise juries will no longer tolerate
their government’s pursuit of patently illegal foreign policies that con-
stitute Ongoing criminal activity under well-recognized principles of
international and domestic law.

This author once received an unsolicited telephone call from a
woman who, in an unnecessarily self-deprecating tone of voice, identi-
fied herself as an ordinary middle-class, middle-aged housewife living in
a typical suburb near Denver, Colorado, wanting to discuss the following
matter: She and a group of similarly situated friends had an appointment
in a few days with the Director of the Rocky Mountain Nuclear Arsenal
and at that time planned to place him under citizen’s arrest in his own
office for the commission of crimes against international law! Unless and
until the ordinary people of America rise up to challenge the elemental
lawlessness of the Reagan administration, the future of the human race
will be determined by those Machiavellians who occupy positions of
power and influence in America’s government, its sycophantic think-
tanks, and its prostituted universities. We must mobilize the common
people to save humanity from these self-styled experts. Only then can we
expect to see some fundamental changes in the nature of the predicament
created by the Reagan administration’s gross international lawlessness
that confronts America and the world today.

TESTIMONY OF PROFESSOR FRANCIS BOYLE IN THE CASE OF
PEOPLE VS. JARKA, NO. 002170 IN THE CIRCUIT COURT OF
LAKE COUNTY, WAUKEGAN, ILLINOIS, APRIL 11, 1985.

(The following proceedings were had in the presence and hearing of
the jury.) (Witness sworn.)

FRANCIS ANTHONY BOYLE, called as a witness on behalf of the
Defendants, having been first duly sworn, was examined and testified as

follows: y

In Defense of Civil Disobedience 117

DIRECT EXAMINATION BY MS. HOFT

Q. Professor Boyle, could you state your full name for the record.

A. My name is Francis Anthony Boyle.

Q. What is your occupation?

A. I’m a professor of International Law at the University of Illinois in
Champaign.

{All further direct examination that was required to qualify the wit-
ness as an expert on international law as it relates to nuclear weapons
and Central America has been deleted here because of space
limitations— Editors. ]

Q. At this point, we would ask that Professor Boyle be qualified as an
expert and if the State’s Attorney would like to cross examine him on
that, we would open him up to that.

MR. SEMMELMAN: No objection.

THE COURT: Very well.

Q. (BY MS. HOFT) Could you describe for us this, what may be, to
the members of this jury, a rather nebulous concept of international law,
what is it?

A. I think it’s important to keep in mind that international law is not
some foreign alien substance that has been established by an outside
body or group of states. Rather the current international legal system that
we see today was set up essentially by the United States of America at
the end of the Second World War, not all of it, but most of it, the great
body of legal rules that I'll be discussing here today. And the reason why
the United States government set these institutions and these rules and
bodies of law up such as the United Nations Charter, the Nuremberg
Principles, the OAS—

Q. Have you told us what OAS is?

A. I’m sorry. The Organization of American States—the United
Nations Charter, the Geneva Conventions, Nuremberg Principles—
others I'll be discussing, was the belief that in the Post-World War era if
the United States of America ever wanted to avoid the scourge of another
World War, it would be necessary to have a rule of law that would be
established for the purpose of adjudicating disputes between states, num-
ber one; maintaining international peace and security, number two; and
then number three, promoting and advancing international human
rights. So, it is what we see today, the rules of international law that the
United States at least historically, until this administration, has always
taken the leading role in trying to develop—rules of international law
and international organizations for peaceful settlements of disputes and
the protection of human rights.

Q. You talked about the U.S. role in initiating this international body
of law. How is the United States bound by international law?

A. We’re bound both internationally and domestically. The basic
principle of customary international law is that treaties should be

118 BOYLE

obeyed. When the United States government enters into a treaty with
another state, that treaty is submitted to the Senate to receive its advice
and consent as required by the United States Constitution, and once that
treaty has received its advice and consent, it is then a binding obligation
on the United States both in its relations with other states and also in
internal law; that is, in our internal relations. And U.S. courts, the
United States government, and indeed, sometimes even United States
citizens are then bound to act in a manner in accordance with the treaty
as required by that treaty.

Q. Does the United States Constitution tell us anything about the
authority that international law should play?

A. Yes. Article Six of the United States Constitution contains what is
called the “Supremacy Clause,” and that is quite explicit. It says that all
treaties are entitled to be treated as the supreme law of the land. That is
the exact language—the supreme law of the land.

The United States Supreme Court in two other cases has held that
that protection, that right to be treated as the supreme law of the land,
also applies to executive agreements. An executive agreement is an inter-
national agreement that also binds the United States government but has
not received the formal advice and consent of the Senate for procedural
reasons. But it is still binding on the U.S. government, and it is entitled
to be treated as the supreme law of the land. And indeed, what that
means then is that if there exists an inconsistent federal or state law, the
treaty should prevail. ©

Q. Professor Boyle, turning your attention specifically now to nuclear
weapons policy on international law, what principles of this general body
of international law are relevant to the use and the threat of use of
nuclear weapons?

A. Well, you have to go back and look a bit at the history of the
development of these principles. Basically, the basic source of these rules
goes back to the First and Second Hague Peace Conferences of 1899 and
1907, and since the rules of the 1899 conference have been incorporated
into the 1907 conference with the Hague Convention—it’s called “Hague
Convention No. 4”—on the conduct of land warfare, and if you read
through this convention to which the United States government is bound
as a party, you'll see several principles that are articulated therein first—

Q. Specifically, Professor Boyle, does international law prohibit the
use of weapons in any way?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. Your answer?

THE WITNESS: Yes.

Q. (BY MS. HOFT) And in what way does it do that?

A. For example, you cannot use weapons that cause unnecessary suf-
fering on human beings. A typical example of this was the early
convention dealing with dum-dum buHets, bullets that would enter the

In Defense of Civil Disobedience 119

body and expand and rip apart your insides. That was prohibited. And
the whole body of this started with the St. Petersburg Declaration of 1868
that prohibited bullets of a very small, little size, so small, beneath the
certain size, that created serious problems in finding them and pulling
them out. So indeed, any weapon that is considered to cause unnecessary
suffering is clearly prohibited, and that is also a principle of law you can
find in the Hague Regulations.

Second, poison. It’s quite clear, and indeed, on this I speak not
simply of the Hague Regulations, but you can even find this in the
Department of Army’s Field Manual on the conduct of land warfare put
out by our government and also by the Department of Navy. Poison or
the use of poison weapons is clearly prohibited by the Hague Regulations
and likewise by the Geneva Protocol of 1925. The United States govern-
ment is a party to the Geneva Protocol. We joined in 1975, and that pro-
tocol specifically prohibits the use of poison gas, chemical weapons, or
poison or biological weapons or any form of analogous substance or liq-
uid. This would apply to weapons involving radiation since it is
determined that radiation is toxic, poisonous to man. So, any use of
those would violate the Hague Regulations and the Geneva Protocol of
1925.

A third basic principle is you cannot adopt methods or tactics of war-
fare or weapons that fail to distinguish between combatants and non-
combatants; that is, between soldiers and civilians. Indeed, the whole
basis, the whole premise of the laws of war, which the United States gov-
ernment fully supports by the way, is this distinction between combat-
ants and non-combatants; that soldiers are in the business of fighting and
dying, but civilians aren’t. So, therefore, it is only permitted for a govern-
ment to conduct its hostilities against armed combatants, not innocent
civilians.

Nuclear weapons fail to make the distinction between combatants
and non-combatants. We have nearly 10,000 nuclear warheads in the
United States targeted on the Soviet Union and a substantial portion of
these are directly targeted on civilian population centers.

MR. SEMMELMAN: I have to object to the last portion. There
seems to be no foundation on that last statement. He was called as an
expert On international law.

THE COURT: I’m going to sustain the objection as to the last com-
ment concerning targeted weapons. It wasn’t really responsive to your
question. I think your question was answered and would you ask another
question.

Q. (BY MS. HOFT) Upon what do you base your opinion that
nuclear weapons relate to violations of these international principles that
you've enunciated?

A. The clearest body of rules that would relate to nuclear weapons
and illegality of the use or threat of nuclear weapons are the Nuremberg
120 BOYLE

Principles. I suspect all of you have heard of the Nuremberg Tribunal
that was established after the Second World War, and it was established
at the direct request of the United States government. This was our tri-
bunal. They wanted to take out the Nazis and shoot them, but Roosevelt
insisted there be a trial and that these men be judged in accordance with
due process of law and in accordance with the rule of law. This tribunal
resulted in a judgment and also eventually in a set of principles that, in
turn, were approved by unanimous vote of the United Nations General
Assembly and is considered binding upon every government in the world
today. And these principles are three: it establishes, first, what are known
as “crimes against peace.” That is waging an aggressive war or a war that
would violate international agreements or treaties. Second, “crimes
against humanity.” Crimes against humanity, at least in the Nuremberg
Charter, attempted to deal with Hitler’s extermination of the Jews and
other national groups in Europe that Hitler believed were not entitled to
be treated as human beings. And if you read, certainly, the definition of
crimes against humanity, you'll see one salient point in there for nuclear
wartare talking about wanton destruction of cities. Destruction of cities is
a crime against humanity. And the third principle set forth by the
Nuremberg Tribunal, the third substantive crime was “war crimes”; that
is, violations of the laws and customs of warfare. Moreover, the Nurem-
berg Principles, the judgment and the charter, also established inchoate
crimes with respect to these substantive offenses; that is, crimes that did
not approach the point of actually committing the substantive offense
itself, but attempt to commit these crimes was made a crime itself.

Q. Professor Boyle, could you give us some examples of what you
mean by this inchoate attempt crime?

A. Attempt to commit a crime against peace, against humanity, or
war Crime is a crime itself, or planning or preparation to commit a crime
against peace, crime against humanity, or war crime is a crime itself.
Incitement to commit these crimes is a crime itself, or conspiracy to
commit a crime against peace, a crime against humanity, or a war crime
is a crime itself. And clearly, the United States government today is plan-
ning, preparing, and conspiring to commit at a minimum crimes against
humanity and war crimes.

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained to the last statement.

MR. SEMMELMAN: I ask the jury be asked—

THE COURT: The jury will disregard it. There has been no founda-
tion for such an opinion, and it’s ten after noon. I think we'll take a
break for lunch.

Q. (BY MS. HOFT) Professor Boyle, could you tell us briefly what
the Genocide Convention of 1948 is? = —

In Defense of Civil Disobedience 121

A. Yes. If you remember, I was discussing the Nuremberg Principles;
and, particularly, the one crime that was established therein called crime
against humanity. That was intended to deal, as I mentioned, with Hit-
ler’s policy of exterminating German Jews.

In an effort to make sure that this never happened again; that is, a
government pursuing a policy of trying to kill members of a group
because of their racial, ethnic, national, or religious character, the United
States government sponsored the Genocide Convention. It was drafted
and approved by the United Nations General Assembly, and it built
upon the principle of a crime against humanity.

The Genocide Convention then specifically prohibits any government
official, whether military or civilian, from pursuing policies that would
be designed to kill or inflict deleterious harm upon even one individual
because of his racial, ethnic, religious, or national characteristics. In addi-
lion, the Convention also makes it a crime to conspire to commit geno-
cide. Likewise, planning and preparation to commit genocide in times of
peace is a crime under the Genocide Convention. And the Genocide
Convention today is certainly considered to be a matter of customary
international law binding upon all governments of the world community.

Q. Protessor Boyle, have you informed yourself as to the effects of
nuclear war?

A. Yes. 1 am a member of a group known as the Lawyers Committee
on Nuclear Policy, and I am part of their Council. [Purely foundational
testimony by the witness has been deleted here in the interest of space—
Editors. ]

Q. Professor Boyle, how do nuclear weapons violate the principles of
crimes against humanity and other principles of international law that
you have enunciated?

MR. SEMMELMAN: Objection.

MS. HOFT: How do they violate those laws?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. You may answer.

THE WITNESS: Well, you have to look at how the United States
government realistically contemplates using its nuclear weapons forces.
And from all that I have studied, that appears in the public records, I
don’t see how, among the various scenarios that the United States gov-
ernment has developed for the use of nuclear weapons, they can be con-
sistent with the requirements of international law. The plans for the
targeting of the U.S. nuclear weapons are found in what is known as the
Single Integrated Operational Plan, or the SIOP, and this consists of a list
of targets that are going to be destroyed in the Soviet Union in the event
of a nuclear war. Right now, we have approximately 10,000 strategic
nuclear warheads targeted for delivery on all major population centers,
military command centers, and nuclear weapons sites in the Soviet
Union. If those weapons, as they are currently planned to do, are
122 BOYLE

dropped on Soviet cities, this would clearly violate the Nuremberg Prin-
ciples. As I mentioned to you, this is a crime against humanity, which
specifically prohibits the wanton destruction of cities; nothing could be
clearer. It would clearly violate the Hague Regulations. It would clearly
violate the Genocide Convention. And I am just talking about the minor
violations here.

Q. How does it appear that the United States is preparing to violate
the Genocide Convention?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. Go ahead.

THE WITNESS: There is a—in the literature, there developed,
during the Carter administration, what is known as the Presidential
Directive 59, that I am sure some of you read in the newspapers, that
dealt with a revision of this plan for the targeting of nuclear weapons on
the Soviet Union. Within this Presidential Directive 59, according to
what I have read and what has been recorded, there was a plan for what
is known as counter-ethnic targeting, which is that the United States gov-
ernment would drop a very large number of nuclear weapons on certain
cities in the Soviet Union that are inhabited by members of the Great
Russian ethnic group in the Soviet Union. The Soviets have about 120
ethnic groups, and the Great Russians are just about 50% of the popula-
tion; and they are the ones who rule that country. This targeting doctrine
called for their destruction not because they were enemies, but simply
because they were Great Russians.

And under the Genocide Convention, that is specifically prohibited.
You cannot kill people just as Hitler could not kill people because they
were Jews. U.S. government officials can’t kill people because they are
Great Russians, and yet that apparently is what our government is plan-
ning to do. In the event of a war, the cities that are inhabited by the
Great Russians, particularly Moscow, Leningrad, will be devastated sev-
eral times over so that there is no realistic possibility anyone could sur-
vive.

Q. Professor Boyle, what duties or liabilities are imposed under inter-
national law on nations that threaten or use nuclear weapons?

A. The best principle here is a United States Supreme Court case,
Application of Yamashita, which built upon the Far Eastern equivalent of
the Nuremberg Tribunal. After the war in the Pacific, there was an inter-
national military tribunal established to try Japanese war criminals. And
one of the war criminals tried there was General Yamashita. He was a
military commander of an island that had on it U.S. prisoners of war.
And while the island was being invaded, apparently some of the soldiers,
subject to his command, though without his knowledge, proceeded to
commit atrocities on U.S. prisoners of war.

In Defense of Civil Disobedience 123

After the war, he was tried for war crimes, and he himself was held
responsible for the atrocities perpetrated by his soldiers, even though he
did not know that they had engaged in these atrocities; did not order it.

He was convicted by the military tribunal and the principle that was
enunciated at that time by the tribunal was that all military officers or
civilian officials who know or should have known that troops or other
individuals subject to their control were about to commit or. have com-
mitted war crimes are fully responsible themselves for those crimes and
can be punished as war criminals.

That principle then was upheld by the United States Supreme Court.
Yamashita was sentenced to death; and in order to avoid the death pen-
alty, he petitioned to the United States Supreme court on habeas corpus.
The United States Supreme Court denied that and upheld the principle
which I just enunciated to you; namely, all civilian officials or military
officers who knew or should have known that troops or other individuals
subject to their control have committed or are about to commit war
crimes, and they either failed to stop it or else failed to punish violators
of the laws and customs of war, are likewise responsible for those war
crimes themselves.

Now, that’s official U.S. law, and you can find that rule enunciated in
the United States Army Field Manual of 1956. You can find that rule
enunciated in the United States Navy’s Field Manual. That’s standard
black letter rule for both international law and U.S. domestic law and
our soldiers and sailors are trained in accordance with that.

So applying that to the question of nuclear weapons, one would have
to say that those United States government officials who know or should
have known that nuclear targeting is being done in a manner to devastate
Soviet cities simply for the purpose of killing large numbers of people as
opposed to legitimate military targets or for the purpose of killing Great
Russians simply because they are Great Russians and not anything else,
are responsible for those crimes.

Q. You mentioned the Navy. Is it your opinion that the Navy is vio-
lating not only its own proclamations but also the mandates of
international law?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Sustained as to that.

Q. (BY MS. HOFT) You mentioned the Navy Field Manual. What
does that Field Manual require?

MR. SEMMELMAN: Objection, Judge.

THE COURT: It’s an awfully broad question. Sustained.

Q. (BY MS. HOFT) Have you read the document of the U.S. Navy in
regard to nuclear weapons policy?

THE WITNESS: Yes. The United States Navy has a field manual—

MR. SEMMELMAN: Objection, Judge.

THE COURT: That objection is overruled.

oa * BOYLE

MR. SEMMELMAN: Judge—

THE COURT: I guess the answer is yes to your question. Put another
question.

Q. (BY MS. HOFT) And is that field manual an official document of
the U.S. Navy?
THE WITNESS: Yes. This field manual was produced by the U.S.

Navy in 1955 and is distributed to all naval officers in the field. In that
manual there is—

MR. SEMMELMAN: Objection, Judge. .

THE COURT: Sustained. Question was answered.

Q. (BY MS. HOFT) What is the purpose of that Navy Field Manual?

THE WITNESS: It is to tell naval officers how they should conduct
their operations in the field and consistent with the laws of war and the
laws of humanitarian armed conflict; particularly, as I mentioned to
you—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained. Again, the witness did answer
your question.

Q. (BY MS. HOFT) Okay. In your opinion, is sitting in the middle of
the road a smaller evil than the nuclear weapons policy of the United
States government?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection is sustained.

Q. (BY MS. HOFT) Professor Boyle, based on your research and your
expertise in international law, do you have an opinion as to the illegality

of the nuclear weapons policy of the U.S. government?
THE WITNESS: I do,

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled.

Q. (BY MS. HOFT) And what is that opinion?

THE WITNESS: In my opinion, and I have stated this in articles and
have delivered it in conferences, all the United States government offi-
cials and also officials of the Soviet Union who launch or wage their
nuclear war either on the United States or respectively on the Soviet
Union, would be guilty of crimes against peace, crimes against humanity,
war crimes, grave breaches of the Geneva Conventions, and acts of geno-
cide at a minimum. And most probably, they would all be subject to
prosecution and conviction as war criminals just as what happened at
Nuremberg and as happened in the Far East after the Second World War.

Q. Professor Boyle, in your opinion, what is the responsibility of an
individual citizen of the U.S. government in regards to complicity in this
illegality?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained.

Q. (BY MS. HOFT) Have you reviewed documents in international
law that provide a duty upon individual citizens of the United States?

In Defense of Civil Disobedience 125

THE WITNESS: There is recognized in the—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Well, I guess, Professor, that could call for a yes or no.

THE WITNESS: Yes.

THE COURT: All right.

Q. (BY MS. HOFT) And what is that responsibility, if you will, of
individual citizens of the U.S. government?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Little more foundation for this response, please.

Q. (BY MS. HOFT) Okay. Within what principle of international law
does any responsibility on the part of the U.S. citizens come?

THE WITNESS: There would be two sources of international law
applicable, I think, to our situation. The first would be again the judg-
ment of the Nuremberg Tribunal itself, once for the purpose of prose-
cuting Nazi war criminals. And in the Nuremberg judgment, if you read
it, there is language to the effect—and here they were talking about the
crimes being perpetrated by Hitler against German Jews, against Rus-
sians, Slavs, and Gypsies, and many others—indicating that citizens did
have an obligation to take whatever steps they could to try to prevent
these types of heinous crimes.

The second source, for my opinion, would be the Statute of the Inter-
national Court of Justice, Article 38. That article sets forth what are
known as the sources of international law. One of the sources of interna-
tional law is what is known as General Principles of Law Recognized by
All Civilized Nations. General Principles of Law Recognized by All—

MR. SEMMELMAN: Objection, Judge. I'd ask the witness not repeat
a statement.

THE COURT: Objection overruled. Go ahead.

THE WITNESS: One of these General Principles of Law Recognized
by All Civilized Nations is the duty to act to prevent the commission of
crime. And so in this opinion, I could certainly say under international
law, as a General Principle of Law, there is certainly a duty to act to
prevent the commission of threatened war crimes, crimes against peace,
crimes against humanity, and genocide.

Q. (BY MS. HOFT): Switching now, Professor Boyle, to the concept
of international law and US. intervention in Central America. Are you
familiar with the United States government’s policies towards those
countries?

THE WITNESS: Yes, I am.

Q. And how have you familiarized yourself with those policies?

A. Well, I have studied this matter at great length, research, writing;
the same way as I have done with nuclear weapons. I have lectured on
the subject, debated on the subject, and I have also traveled in the Carib-
bean area. |

Q. And are the sources that you have mentioned generally relied upon
by other experts in the international law field?

126 BOYLE

A. Yes, they are.

Q. Are you familiar with the recent intervention in November of last
year in Grenada?

A. Yes, | am.

Q. And do you have an opinion as to the legality of the U.S. invasion
of that island?

A. Yes. I was the—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. Go ahead.

THE WITNESS: I was the organizer of a group of ten international
law professors here in the United States of America issuing a statement
claiming and condemning the invasion of Grenada as a violation of inter-
national law. Particularly, the Charter of the United Nations and the
Charter of the Organization of American States. Those were the two
basic principles of law that in my opinion were violated with respect to
Grenada.

Q. (BY MS. HOFT): What does the United Nations Charter require
in order for one country to perpetrate any kind of intervention in another
country?

THE WITNESS: Well, the general principle of the United Nations
Charter is found in Article 2(4). That prohibits the threat or use of
force—and it’s important to make clear, threat or use of force—in inter-
national relations directed against the territorial integrity or political
independence of any state or in any other manner inconsistent with the
terms of the United Nations Charter.

Now, that principle, as I said, and the whole Charter itself, was the
idea of the United States government. This was our principle, our idea.
There is one major exception, and that can be found in Article 51 of the
United Nations Charter. That exception provides that in the event of an
armed attack upon your state or a neighboring state, you have a right, an
automatic right, to defend yourself or to defend that neighboring state
from the armed attack.

The problem was that with respect to Grenada, there is absolutely no
evidence at all that Grenada was about to attack anyone. And so the
invasion of Grenada would not fit within the terms of this exception to
Article 2(4).

Q. What does the Organization of American States provide as to
when a state can intervene in the internal or external affairs of member
states?

A. The Charter of the Organization of American States again was
founded by the United States of America. This was our idea; we set it up.
It too incorporates the principle of Article 2(4) of the United Nations
Charter; and in addition, has this Article 51 exception for self-defense.
However, it is even more explicit than the United Nations Charter about
various forms of intervention. And it states quite clearly that interven-

In Defense of Civil Disobedience 127

tion by one American state into the affairs of another American state is
absolutely prohibited for any reason whatsoever. It’s quite clear. You can
read it. It was formulated at the direct request of the Latin American
States, who had objections to the policy that had been pursued by the
United States government during the first three decades of this century,
whereby they were repeatedly sending marines down to various countries
in Central America and the Caribbean, interfering in their domestic
affairs.

We wanted the Latin American countries to join up in the OAS, and
one of the conditions for doing this was our agreement to this principle
that intervention into domestic affairs of Latin American states would be
prohibited for any reason whatsoever.

Q. Do you have an opinion as to what the effect of the Grenada inva-
sion is upon an understanding of the policies of the current
administration toward other countries in Central America?

MR. SEMMELMAN: Objection.

THE COURT: I will overrule it. Go ahead.

THE WITNESS: There is a direct connection in my opinion. It’s a bit
technical, so please bear with me. I don’t mean to sound too much like a
lawyer.

The Reagan administration, as I am sure you read from the news-
papers, attempted to claim it had a right to invade Grenada by this
grouping of little islands in the Eastern Caribbean called the Organization
of Eastern Caribbean States. Certainly, in my opinion, that is just an
incorrect legal argument. It is made very clear in the terms of both the
OAS Charter and the U.N. Charter that the obligations of both those
charters prevail over any other type of international commitment or
arrangement that the United States government might be a party to.

So this little group of states could not authorize an invasion of
Grenada. But shortly after Grenada was invaded, the Reagan administra-
tion then attempted to set up a similar type of grouping in Central Amer-
ica, which is known as the Central American Defense Council Pact. And
the reason being, that since apparently they were successful in convincing
the American people that this little grouping of American states could
authorize the invasion of Grenada, this other group, which is known by
the Spanish acronym CONDECA, could likewise authorize military
action against Nicaragua. But, again, as a matter of law, I think it’s incor-
rect. It is made quite clear in the terms of the OAS Charter and the
United Nations Charter that the obligations of both those charters must
prevail over any other obligations or arrangements or pacts or groups of
states.

And by the way, I should point out that the CONDECA Pact was set
up aboard a United States battleship, which sort of gives an indication of
its legality.

128 BOYLE

Q. Turning specifically to Nicaragua. Are you familiar with the U.S.
government’s policy toward that country?

A. Yes, Il am.

Q. And is that familiarity based upon the same sources of your other
knowledge?

A. Yes. Extensive reading and writing in this area, government docu-
ments, articles. Almost anything I can read on the subject that is out
there in print, | do attempt to read, yes.

Q. And what have you found in your research is the United States
doing in Nicaragua?

MR. SEMMELMAN: Objection.

THE COURT: Overruled. Go ahead.

THE WITNESS: Well, as the President of the United States of Amer-
ica said the other night, his objective in Nicaragua is to make the
government down there say uncle. Clearly, that is prohibited by the
terms of the OAS Charter. The Charter would permit the following: In
the event that there was evidence, for example, that there were attacks
from Nicaragua through Honduras against El Salvador, certainly the
United States government would have a right to stop those attacks. And
al the start of the Reagan administration, they said that that was the pol-
icy; that the sole policy was to stop Nicaragua from attacking El Salvador
through Honduras. But as time went on, it became clear that that was
not the policy or that the policy had changed depending on your perspec-
tive; and that now the policy was, as the President said the other night,
basically to change the structure of the government in Nicaragua or to
overthrow it. Or as he put it, to make them say uncle.

That objective, again, is clearly prohibited by this article of the OAS
Charter that I had mentioned to you. Although the United States govern-
ment has a right to stop any attacks by Nicaragua against its neighbors, it
has no right to go down there and change the form of government. That’s
for the Nicaraguan people to determine for themselves under the terms
of the OAS Charter and the United Nations Charter.

Q. Who, Professor Boyle, are the contras?

A. The contras—that is a Spanish name for the coun-
terrevolutionaries—is a military force, now consisting of—estimates run
from ten to fifteen thousand men on the border between Nicaragua and
Honduras, which is to the north. And on the south, five thousand men
between Nicaragua and Costa Rica. This force was established by the
United States government—particularly the Central Intelligence
Agency—and as it appears now, preliminarily for the purpose of over-
throwing the government in Nicaragua. And, again, as I said, that is
prohibited under the terms of the OAS Charter.

Q. What kinds of specific activities are the contras engaged in?

MR. SEMMELMAN: Judge, objection.

THE COURT: Foundation? -

In Defense of Civil Disobedience 129

Q. (BY MS. HOFT) Are you familiar with the specific activities of the
contra force in Nicaragua?

THE WITNESS: Yes. I have read extensively on this. In addition, I
have attended several international conferences where documentary evi-
dence has been produced from individuals in Nicaragua who have been
subjected to attacks by the contra forces.

Q. What specific activities are the contras engaged in?

MR. SEMMELMAN: Objection.

THE COURT: Overruled.

THE WITNESS: It appears that the contras are doing two types of
things. One, they are attacking specific military objectives. Number two,
however, they are engaging in a policy designed to terrorize the populace
living in these regions in both the north of Nicaragua and in the south in
order to get them not to cooperate with the government. This includes
robberies, rapes, mutilations, torture, the killing of non-combatants. As I
said, under the laws of war, it is perfectly acceptable to kill soldiers, but
not civilians.

From the best that I can see, what we see here is that the contras are
engaging in a pattern, what we lawyers call a gross and consistent pattern
of violations of fundamental human rights; and particularly, the Geneva
Conventions of 1949.

Q. Under international law, how are the atrocities committed by the
contras attributable to the United States?

A. This is under the Geneva Conventions of 1949 that I had men-
tioned and also the Yamashita case. Under the Geneva Conventions of
1949, again the United States government was very supportive of this.
They were designed in order to make clear that the atrocities perpetrated
by Hitler during the Second World War should not be repeated. Or if they
are repeated, that it would be made very clear that these are war crimes
under international law. So we had the Geneva Conventions.

The appropriate one of the four conventions is the Fourth Convention
that protects civilians. The other three deal with prisoners of war that
aren’t really relevant in this context.

This convention protects ordinary human beings, not soldiers; and
Article 29 of the Fourth Convention makes it quite clear that if a govern-
ment in an international armed conflict sets up a band or a group—a
mercenary group of soldiers, and that group operates as its agent—that’s
the key word that is used in Article 29, as its agent—then the govern-
ment that set this group up is fully responsible for any violations of the
Geneva Conventions committed by the group. And it is clear from every-
thing I have read, and indeed even our own government officials have
admitted this, that the contras have engaged in violations of the Geneva
Conventions.

Article 147 of the Geneva Convention describes what’s called a grave
breach. These are very serious breaches. Any violation is a war crime.

130° BOYLE

But these are the most serious of all. And, again, murder, mutilation, tor-
ture, rape, things of that nature are grave breaches of the Geneva Con-
vention. And Article 146 of the Convention says that any individual who
commits grave breaches must be prosecuted by a government that gets a
hold of him, no matter where they are located, no matter what govern-
ment it is, Or no matter what the nationality of the person who is alleged
to have committed the war crime.

Q. So how does this article fit into the responsibility of the U.S. mili-
lary personnel, including Navy personnel, in that regard, under that
article?

A. Well, if you read that article in light of the Yamashita case, which I
mentioned to you before, all U.S. civilian government officials or mili-
tary officers who knew or should have known that the contras are com-
mitting war crimes in Nicaragua, and they have failed to take steps to
stop the war crimes or to punish those who have committed those war
crimes, are guilty of those crimes. They are responsible for those crimes.

Again, under the Geneva Conventions and under this case decided by
our own United States Supreme Court, and indeed even in accordance
with the field manuals that I have mentioned to you before, these princi-
ples are set out quite clearly in the terms of the field manuals.

Q. Are you familiar with the United States government's relationship
to El Salvador?

A. Iam.

Q. Is that familiarity based on these sources that are generally relied
upon by other experts in your field?

A. Yes, it is.

Q. And what is the United States government’s relationship to the
government of El Salvador?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled.

THE WITNESS: Well, not to describe it in general, but under inter-
national law, we lawyers would characterize what is going on in El
Salvador as a civil war. Again, you can determine that for yourselves just
by reading the newspapers. And, again, under international law, cus-
tomary international law, under the terms of the OAS Charter, under the
terms of the United Nations Charter, that is a matter to be decided by
those people themselves. This is an internal affair. It is not one for out-
side intervention like the United States government.

The reason for this principle in international relations, why you are
not supposed to intervene in civil wars, is that the United States was the
one who promoted that principle. During our own Civil War, we argued
that the English had no right to choose up sides between the North and
the South, and we so informed them. When the war was over, we almost
went to war with England unless they agreed to pay damages for support
that they had given to Confederate raiders, And, eventually, the principle

In Defense of Civil Disobedience 131

was established in the famous path-breaking Treaty of Washington that
states will remain out of civil wars in other countries. And it was that
principle that the United States government got the entire international
community to agree upon and was eventually enshrined in those other
treaties and documents I have told you about.

It is clear to me that we have chosen sides in this civil war in favor of
the military establishment that currently governs the state of El Salvador;
and in my opinion, that is prohibited by the terms of the OAS Charter,
United Nations Charter, and customary international law.

Q. Are you familiar with the relationship of the United States govern-
ment to Puerto Rico?

A. Iam.

Q. And what is that relationship?

A. Well, to put it frankly, the United States government stole Puerto
Rico from Spain in 1898. And, again, the official U.S. government docu-
ments establish this. There was—at that time, Spain was the colonial
power in Pucrio Rico and also in Cuba. There was a revolution in Cuba
at that time, and the Spanish conducted a very harsh policy directed
against the Cuban people, including the establishment of concentration
camps, torture, and a wide variety of other practices.

There was imperialist sentiment in this country that we should just
go in and take over Cuba, Puerto Rico, and the other islands in the
Caribbean from the Spanish. Nevertheless, we sent an ultimatum to the
Spanish Queen that she either improve her policy in Cuba or we would
declare war. The Spanish Queen sent a message back saying that she
would improve the policy towards Cuba and particularly cut out the
human rights violations; and yet two days later, Congress declared war
anyway even though Spain had capitulated to the ultimatum. And we
then invaded Cuba, Puerto Rico. We also took Guam and the Philip-
pines. We eventually gave independence to Cuba. Cuba attained inde-
pendence in 1906. The Philippines obtained independence in 1947. But
we still hold on to Guam, and we have what is known as a com-
monwealth association with Puerto Rico. Puerto Rico has not been given
independence.

Q. In your opinion, do the United States government’s policies in
Central America and the Caribbean constitute ongoing criminal activity?

A. Clearly, we are violating the Geneva Conventions of 1949, and
committing grave breaches of the Geneva Convention. Perhaps the most
recent glaring example in my mind of that was, as you probably read,
this so-called manual that was produced by the Central Intelligence
Agency that called upon members of the contra group to commit murder
and assassination of innocent civilians in Nicaragua. That type of
aclivily is specifically prohibited not only by the Geneva Conventions,

La2 BOY LE

but even by the United States Army’s own field manual that Says assas-
sination is absolutely prohibited under all circumstances. Yet, our CIA
was producing a manual calling for assassination of individuals.

Q. In your opinion, what is the reasonableness under international
law of the actions of these Defendants in taking responsibility for
changing U.S. policies?

MR. SEMMELMAN: Objection.

THE COURT: Objection sustained.

MS. HOFT: Do you have an opinion as to the reasonableness of U.S.
citizens who attempt to change policies that you described as illegal?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained.

MS. HOFT: You have laid out to us the responsibilities of individual
citizens under international law. What is your opinion as to how individ-
ual citizens should reasonably act?

MR. SEMMELMAN: Objection.

THE COURT: Sustained.

MS. HOFT: Under international law, what are the responsibilities of
individual citizens towards the U.S. government’s policies in Central
America?

THE WITNESS: Well, as I mentioned with respect to nuclear weap-
ons, the principle is just about the same. If you read the judgment of the
Nuremberg Tribunal, it does appear that there is an obligation of individ-
uals to the extent they can to prevent these heinous violations of
international law; particularly, war crimes, crimes against peace, crimes
against humanity. Likewise, as I argued under Article 38 of the Interna-
tional Court of Justice Statute, to which we are a party, these general
principles of law recognized by all civilized states are a source of interna-
tional law. And certainly one of these general principles of law recog-
nized by all civilized states is a duty to prevent the ongoing commission
of crime.

MS. HOFT: No further question.

THE COURT: Thank you. Cross examination.

MR. SEMMELMAN: Thank you, Judge.

CROSS EXAMINATION

Q. (BY MR. SEMMELMAN) Professor Boyle, you were discussing
with defense counsel some violations of international law by the United
States. Is international law violated often by other countries also?

MS. HOFT: Objection.

THE COURT: Overruled.

THE WITNESS: It depends on how you look at it. The United States
government historically has not violated international law all that much
no matter what other states have done. Now, we see a shift in the posi-
tion of the United States government saying that, well, since some other
States might violate international law, we’re going to do it too.

In Defense of Civil Disobedience 133

MR. SEMMELMAN: Professor, that’s not quite my question. My

question is: Do other states, other countries, violate international law?
THE WITNESS: Yes, other countries do.

Q. Does this happen, through your research, do you know if this hap-
pens often?

A. Well, you are asking a very general question. If you could ask me
specific states, I could be more specific about it. It depends. In my opin-
ion, if you look at the amount of activity that goes on in the world today,
it’s fairly remarkable that we do have substantial compliance with many
rules of international law; in particular, the United Nations Charter.
What creates problems are those instances of glaring examples of egre-
gious violations of those. Like the Soviets have done in Afghanistan. Like
the United States government did in Grenada. Or like the U.S. govern-
ment is currently doing in Nicaragua. So it’s the exceptions that really
stand out.

Q. Could you say through your research that the United States policy
is generally in compliance with international law?

A. Well, under the Reagan administration, in my research, I can say
that in the particular areas I am familiar with, nuclear weapons policy,
Central Amenca, and also the Middle East, which is not at issue here,
my answer to that question would have to be, no. It is not in compliance
with the basic rules of international law. I regret to have to say no
because I don’t believe that historically that has been the case of the
United States government and should not be the case.

Q. In the past, have there been sanctions on countries for violation of
international law?

A. Yes, there have.

MS. BYRNE: Objection.

THE COURT: Overruled. Go ahead.

THE WITNESS: Yes, there have, such as the Nuremberg Tribunals,
which I have discussed here, that the United States government did par-
ticipate in and that led to the executions of several Nazi war criminals.
And, likewise, in the Far East, there were the executions, including Gen-
eral Yamashita, of several Japanese war criminals.

MR. SEMMELMAN: Thank you, Professor.
MS. HOFT: Just a few questions.

REDIRECT EXAMINATION

Q. (BY MS. HOFT) What is the effect, Professor Boyle, of the United
States’ responsibilities under international law of the violations by other
countries of international law?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. I think he may answer.

THE WITNESS: Well, this is a point I had made in—we had dis-
cussed before. The Reagan administration takes the position that, well,
since some other governments might violate international law, thereby

134 BOYLE

we have a right to violate international law. But it doesn’t work that way.
You do have a right to defend yourself. You do have a right to take cer-
lain steps to rectify that violation. But just because someone violates the
law doesn’t give you a right to violate it either. Just because there’s mur-
ders, muggings, and rapes down the street, say here in Waukegan, doesn’t
give you a right to go out and do it either.

It’s the same way in the international system. There are mechanisms
and procedures set up to deal with lawbreakers. For example, in Central
America. If, as the Reagan administration believes, the Nicaraguan gov-
ernment is actually providing weapons and equipment and supplies to
rebels—

Q. Professor Boyle, has the U.S. in fact been sanctioned for its activi-
ties in Nicaragua?

A. Already, the International Court of Justice has issued an opinion
in December of the year before last, what is known as an Interim Order
of Protection—it’s called the World Court—ordering the United States
government to terminate all forms of military action, paramilitary action,
or threats or use of force against the government in Nicaragua; and the
United States has refused to comply with that Order issued by the Inter-
national Court of Justice.

Q. Who set up the International Court of Justice?

A. Once again, the United States of America set up the International
Court of Justice. This idea went back to President Theodore Roosevelt’s
Secretary of State, Elihu Root, who was a great international lawyer; and
he sent the American delegation to the Second Hague Peace Conference
in 1907 with the idea of establishing an International Court of Justice
that would be identical to our Supreme Court of the United States, but
would hear disputes between states. And it was that program that even-
tually came into effect in 1921. It was interrupted by the First World
War, and then that Court was continued after the Second World War. So
the World Court is literally the United States of America’s great gift to
mankind, and indeed we then went out and tried to convince everyone
else in the world to join the World Court.

And yet here today, tragically, not only has the Reagan administra-
tion refused to obey the decision of the World Coun, but now just
recently, as you probably read in the newspapers, they have walked out
of the World Court and have stated that they will not even appear to
argue their case and will not pay any further attention to what this Court
tells the United States of America to do.

MS. HOFT: Nothing further.

THE COURT: Recross?

MR. SEMMELMAN: No recross.

THE COURT: Thank you. You may step down. Call your next wit-
ness, please.

(Witness excused.) -

‘ . |
¥
4 t

PROCEEDINGS, SKVENTY-EIGHTH ANNUAL MEETING
THE AMERICAN SOCIETY OF INTERNATIONAL LAW
U.S, RELATIONS WITH CENTRAL AMERICAN NATIONS:
LEGAL AND POLITICAL ASPECTS

WASHINGTON, D.C.
APRIL 12-14, 1984

i44

U.S. RELATIONS WITH CENTRAL AMERICAN NATIONS:
LEGAL AND POLITICAL ASPECTS

The panel was called to order at 8:30 p.m., April 12, 1984, by the Chairman, Tom J.
Farer.* During his introductory remarks, Professor FARER noted that there were
three kinds of chairmen: the traffic policeman, who was scrupulously nonpresent; the
chairman who provided a brief analysis of the topic before the actual panel discussion;
and the chairman who saw to it that the important, pertinent questions were ad-

dressed by the panel. Professor FARER said that his role would be that of the third
type of chairman.

REMARKS BY FRANCIS A. BOYLE**

Professor BOYLE opened his remarks by underscoring his complete disagreement
with U.N. Ambassador Jeane Kirkpatrick’s luncheon speech,! the gist of which, he
said, was the assertion that because the adversaries of the U.S. Government often
acted illegally, reprehensibly and sometimes barbarically, the U.S. Government had
the right and the obligation to do the same.

He noted that because the topic of the panel was presented in broad terms to deal
with the entire problem of Central American relations, it would be worthwhile to start
with a discussion of the historical origins of U.S. involvement in Central America
from an international law perspective, and then consider the contemporary problems
within that perspective.

Professor BOYLE commented that the Reagan Administration had adopted Theo-
dore Roosevelt’s approach to Latin America and the Caribbean Basin, an approach
which history had shown to be an abysmal failure. According to Professor BOYLE,
military intervention in Latin America did not work. He noted that many interna-
tional lawyers and members of the ASIL in President Roosevelt’s time had been ac-
tively opposed to military intervention in Central America and the Caribbean Basin.
These men, including James Brown Scott and Elihu Root, had been instrumental in
pioneering a new vision of international relations in the Western Hemisphere, a vision
which would eventually culminate in the Charter of the Organization of American
States (OAS) and its prohibition against military intervention.

Professor BOYLE then proceeded to a discussion of the Monroe Doctrine, which
was, he said, the logical starting point of any history of international relations in the
Western Hemisphere. The Monroe Doctrine had always been a unilateral policy
statement of the U.S. Government; it had never been put forth as a principle of inter-
national law. At the time of its declaration, the Monroe Doctrine represented for

Latin American nations a guarantee on the part of the United States to protect the
region from the reimposition of colonial control.

More problematic for Latin America, Professor BOYLE noted, was the Roosevelt
Corollary to the Monroe Doctrine. The Roosevelt Corollary enunciated a policy of
unilateral military intervention by the U.S. Government in the domestic affairs of
States throughout the Caribbean Basin, primarily to install military dictatorships
favorable to U.S. interests in order to protect the approaches to the Panama Canal.

*Professor of Law, Rutgers, the State University of New Jersey, Camden.
**Professor of Law, University of Illinois.
'Supra, p. 59.

145

According to Professor BOYLE, the protection of the approaches to the Panama
Canal, which the United States had seized unlawfully from Colombia, had been the
primary reason for U.S. involvement in Central America. In the aftermath of the
Spanish American War, the United States perceived itself to be like the great colonial
powers of Europe and claimed the Western Hemisphere as its own sphere of influence.
To justify U.S. intervention in the area, some international lawyers spoke at the time
of the right to protect U.S. nationals and property abroad, the right to promote de-
mocracy, and a variety of other things. It was clear with the passage of time and a
review of the historical record, however, that American intervention had nothing to
do with the promotion of democracy or the rule of law; this had been merely pretext,
Professor BOYLE said, used to delude some international lawyers and the American
public into supporting military interventions.

From the Spanish American War to the late 1920s, military intervention had been
the keystone of U.S. policy in the Western Hemisphere, Professor BOYLE said. It was
justified on the basis of the Roosevelt Corollary to the Monroe Doctrine, according to
which the United States claimed the right to act as policeman for the enforcement of
international law throughout the Caribbean Basin. Professor BOYLE pointed out that
one of the founders of the American Society of International Law, Elihu Root, who
also had served as Theodore Roosevelt’s Secretary of State, had disagreed with the
Roosevelt Corollary and had argued that the United States had no business assuming

the role of hemispheric policeman. Other members of the ASIL had argued along the
same lines.

According to Professor BoYLe, the Dominican Republic provided the first stage for
the implementation of the Roosevelt Corollary. When the Dominican Republic fell
into international bankruptcy in 1904, the U.S. Government imposed economic re-
ceivership, sent down an administrator and ran the entire economy of the country.
The Marines had been sent into the Dominican Republic in 1916 by the Wilson Ad-
ministration because of an alleged violation of an agreement which, in any case, never
contained the right of military intervention. The Marines stayed for quite some time.

The Dominican Republic experience, Professor BOYLE pointed out, proved to be a
model for the negotiation of economic receivership agreements between the United
States and Honduras in 1911; between the United States and Nicaragua in 1911; and
between the United States and Haiti in 1915. An economic receivership was even
negotiated with Liberia, although without any involvement of the U.S. Marines. Such
was not the fate of Central America: the Marines intervened in Nicaragua in 1912,
remained in occupation until 1925, then returned the next year, withdrawing only in
1933; the Marines occupied Haiti from 1915 to 1934, and the economic receivership
there had been maintained until 1947; the Marines also had landed in Honduras in
1924, staying until 1925. Similarly, the Platt amendment had given the U.S. Govern-
ment the right to unilateral military intervention in Cuba in the event that conditions
there degenerated out of control. The U.S. Marines repeatedly intervened in Cuba, in
1906, 1912, 1917 and 1920. The Platt amendment was not abrogated until the institu-
tion of Franklin D. Roosevelt’s Good Neighbor Policy. According to Professor

BOYLE, dollar diplomacy and gunboat diplomacy went hand in hand, and once again,
democracy had nothing to do with it.

Professor BOYLE said that the U.S. intervention had been justified by some as “the
abatement of an international nuisance” both in the defense of specific rights and gen-
eral interests in international law and order, and as a moral obligation to rescue the
people of barbarous nations from backward rulers and to bring freedom and democ-
racy to them. Once again, as the historical record had shown, this was all pretext.

146

Eventually, Professor BOYLE noted, U.S. military intervention in Central America
and the Caribbean Basin proved unpopular at home, generating 75 years before much
of the same debate heard today. The U.S. Government gradually pulled the Marines
out of the area, starting in the Hoover Administration and finishing during the
Roosevelt Administration. With the withdrawal of the Marines, however, the United
States put in a series of military dictatorships throughout Central America and the
Caribbean Basin. According to Professor BOYLE, at the root of the current problems
in the area were the same dictatorships or their lineal successors. It was these dicta-
torships, originally put into power as surrogate of the United States, which the people
of Central America and the Caribbean Basin were trying to overthrow.

Referring to a dual tension in U.S. policy at the time, Professor BOYLE said that
many international lawyers had believed that unilateral military intervention was pro-
hibited by international law and was undesirable as a long-term course for U.S. foreign
policy. This group of American international lawyers had built the foundation of the
inter-American system; they had been instrumental in organizing the first Interna-
tional American Conference and successive conferences as well. They also had been
instrumental in the creation of the Pan-American Union and in the negotiation and
sponsorship of a series of international arbitral conventions and treaties prohibiting
the use of force and intervention which had been meant to lay to rest the specter of the
Roosevelt Corollary to the Monroe Doctrine. The Charter of the OAS also had been
framed with this purpose, especially the provision of the charter prohibiting interven-
tion in the domestic affairs of American states for any reason. While this provision
was supposed to represent the interment of the Roosevelt Corollary to the Monroe
Doctrine, Professor BOYLE said, the Reagan Administration just didn’t see it that
way.

President Reagan was patterning himself, Professor BOYLE said, on Theodore
Roosevelt. He commented that the Reagan Administration’s geopolitical approach to
American foreign policy, its strategic design, simply represented a Machiavellian ap-
proach to international relations. The situation in Grenada was mentioned by Profes-
sor BOYLE as indicative of the drift of the Reagan Administration’s approach toward
the entire Caribbean Basin, which perceived that area as a whole strategic region be-
cause of its proximity to the Panama Canal.

Referring to an article he had written in 1982, Professor BOYLE said that it had
been obvious from a number of developments at that time that the Reagan Adminis-
tration was planning either to invade Grenada or launch a coup. He mentioned the
Central Intelligence Agency (CIA) proposal for a coup in Grenada which had been
submitted to the Senate Intelligence Committee; it had been rejected subsequently. He
also noted that a dress rehearsal for the coup had been held one year prior to the
actual invasion. Professor BOYLE went on to mention a letter in the April AJIL in
which he and other international lawyers elaborated the legal arguments against the
invasion of Grenada. In response to a piece by Professor John Norton Moore
stressing the legality of U.S. actions in Grenada on the basis of the request by the
Governor-General of Grenada for U.S. assistance, Professor BOYLE mentioned a spe-
cial report in The Economist, which stated that the request came after, not before, the
decision to invade Grenada had been made by President Reagan. According to The
Economist, as quoted by Professor BOYLE: “This Scoon request was almost certainly a
fabrication concocted between the OECS and Washington to calm the post-invasion
diplomatic storm. As concoctions go, it was flimsy.”2 Professor BOYLE added that

2THE ECONOMIST, March 10, 1984, at 34.

147

only the gullible would believe that the invitation to invade should be credited with
any legal significance at all.

Commenting on Professor Moore’s discussion of the capacity and role of the Organ-
ization of Eastern Caribbean States (OECS), Professor BOYLE said that he was confus-
ing the OECS, an article 51 collective self-defense arrangement analogous to the Rio
Pact, with a chapter 8 regional organization: One could not transfer chapter 8 powers
to an article 51 arrangement like the OECS and hope to turn it thereby into a chapter
8 arrangement. Professor BOYLE reiterated that if there had been a real threat posed
by the situation in Grenada, President Reagan should have gone to the OAS, the only
chapter 8 organization in the Western Hemisphere; this action was never taken be-
Cause it was clear that the OAS would never have supported a U.S. intervention in
Grenada. Professor BOYLE contrasted this with the actions of the Kennedy Adminis-
tration during the Cuban missile crisis. Realizing that the proposed naval blockade
would be difficult to justify under article 51, the Kennedy Administration went to the
OAS for an endorsement of the blockade. President Reagan didn’t even bother, Pro-
fessor BOYLE said, because he realized the futility of such a move.

In the case of the Dominican Republic in 1965, President Johnson had invaded
without anyone’s authorization, claiming, like President Reagan, threats to U.S. lives
and property. Once the U.S. intervened, Professor BOYLE noted, President Johnson
realized that the legal basis for continued occupation was weak and went to the OAS
for endorsement of continued U.S. presence in the guise of an Inter-American
peacekeeping force. Professor Boyle went on to argue that the real origin of the
Brezhnev Doctrine lay in the actions of the United States in the Dominican Republic
in 1965. He commented that the arguments raised by the Soviet Union in the Security
Council to justify the 1968 invasion of Czechoslovakia had been remarkably similar to

those made by the Johnson Administration during the invasion of the Dominican
Republic.

U.S. intervention in Grenada was significant because the Reagan Administration
was relying on the same precedent in Central America. Professor BOYLE said that the
Administration had taken the Condeca Pact, which was functionally similar to the
OECS Charter, had reactivated it, and had intimated that it might repeat in Central
America its actions in Grenada. Professor BOYLE commented that the Reagan Ad-
ministration was pursuing a lawless policy toward Nicaragua, in violation of the OAS
Charter, the U.N. Charter, and even of U.S. domestic law, including the Neutrality
Act, the Boland Amendment and the War Powers Act. Furthermore, the Reagan

Administration was disputing the jurisdiction of the International Court of Justice,
the brainchild of Elihu Root.

Professor BOYLE went on to argue that if the facts in the Nicaraguan case were as
clear as Ambassador Jeane Kirkpatrick said they were, the Reagan Administration
Should be prepared to submit its case to the World Court. Professor BOYLE said he
didn’t agree with Ambassador Kirkpatrick that the facts were clear. The U.S. Gov-
ernment’s refusal to make its case before the World Court raised suspicion in Profes-
sor BOYLE’s mind that the facts even existed.

Professor BOYLE argued that a unilateral military intervention by the Reagan Ad-
ministration would not resolve the problem in Central America; rather, the solution to
the problem lay in negotiations within the OAS framework. He emphasized that the
United States was a founding member of the OAS, which had been created as a mech-
anism for nations of the Western Hemisphere to resolve their own regional problems,

apart from the threat of external attack and aggression. Yet Reagan had completely
ignored the OAS.

148

To interdict the alleged flow of arms across the border to El Salvador from Hondu-
ras and Nicaragua, Professor BOYLE suggested that an OAS peacekeeping force be put
in. Or, since Nicaragua wouldn’t accept the legitimacy of the OAS because of the
absence of Cuba, a U.N. peacekeeping force could be used to monitor the flow of arms
in one direction and the flow of Contras in the other. Similarly, in El Salvador, where
only the Reagan Administration and the military dictator did not want negotiations,
an OAS peacekeeping force could be used to supervise the elections, much like the
OAS did successfully in the Dominican Republic.

According to Professor BOYLE, the solution to the problem in Central America lay
in a collective multilateral response through the OAS, not through unilateral military
intervention as envisioned by the Reagan Administration. This was the way the
founders of the ASIL had seen it 75 years before; this was the approach Professor

BOYLE himself supported. He closed his remarks with an expression of hope that

others in the audience would see it that way also.

REMARKS BY ALLAN GERSON*

I will not begin this evening by correcting at length the inaccurate characterization
of Ambassador Kirkpatrick’s remarks this afternoon by Professor Francis Boyle. Suf-
fice it to say at this point that the thrust of her remarks was that individuals serious
about the rule of law cannot ignore, cannot afford to ignore, that the first rule of law is
the equal application of the law. Such individuals cannot dismiss summarily that ar-
gument in the way that Professor Boyle has. Professor Boyle talks about past U.S.
mistakes. We have made mistakes. And I’ll have more to say about that later. What

I wish to do this evening is talk as one international lawyer to another about certain
common problems.

After being introduced at past meetings of the Society, I usually began with the
caveat that although a U.S. Government official (then with the U.S. Department of
Justice) my remarks were not being made in my Official capacity and should not,
therefore, be construed as representing the views of the U.S. Government. Tonight, I
speak in my official capacity, although I would express the same views were I to speak
in my nonofficial role as a writer and student of international law.

In preparing for this evening’s talk, I wondered what was there that I could say that
was new, that had not been said previously by the President, by the Secretary of State,
by the U.S. Ambassador to the United Nations, that had not been addressed by the
National Bipartisan Commission on Central America, and in various congressional
hearings. The answer, I am afraid, is not very much, but I shall try.

The political problems faced by the United States in dealing with the crisis in Cen-
tral America are complex and multifaceted, as are the factors that give rise to the
conflict; the legal issues involved are not, I believe, difficult to deal with. As with any
political or legal problem, it is useful, I believe, to begin with an examination of who
wants what and how they seek to achieve what they want. What do the people and
government of El Salvador want? What do the anti-E] Salvador government FMLN-
FDR guerrillas want? What are the goals of the Soviet Union and Cuba, and of the
coalition of Nicaraguan opposition forces popularly known as the Contras? And what
is it that Nicaragua and the United States want, and how do they seek to obtain their
objectives? Without understanding the premises and presumptions underlying the be-

havior of the parties, we cannot expect, I am afraid, to deal adequately with the legal
issues presented.

*Special Assistant to the Permanent Representative of the United States to the United Nations.

149

I'll try to be very brief.

Obviously, the Government of El Salvador is not cast in our mold. But while not
minimizing the hurdles the Government of El Salvador must still overcome in its
quest for a free democratic system, it is clear, I believe, as demonstrated by the elec-
tions of March 1982 and 1984, that the people and Government of El Salvador are
committed to the democratic process. This commitment to the democratic process is
not, however, shared by all the people of El Salvador, and here is where the problem
begins. The most recent issue of Newsweek reports: “On election weekend the rebels
made scattered attempts to stop the process. They blew up power lines, blocked
roads, and fought with the Army in a few places and managed to prevent voting
altogether in 40 or more municipalities.” Despite these obstructions, most election
watchers came away impressed that “. . . a free and more or less fair contest had been
conducted.” Concludes Newsweek: “Conducting a free and fair election in the midst
of civil war was no small accomplishment.” (emphasis supplied)!

The FMLN-FDR guerrillas acknowledge that they seek to overthrow the elected
government of El Salvador and seize power for themselves. Their opposition to elec-
tions has nothing to do with assurances of being allowed to participate freely and fully
in the electoral process. It is interesting to read the official statement of policy issued
by the General Command of the FMLN and Executive Committee of the FDR on
February 10, 1984, which states: “The FMLN-FDR is willing to negotiate a ceasefire
once the process of dialogue and negotiation has begun and when it has reached an
advanced stage.” (emphasis supplied) The “advanced stage’”’ is then defined as “the
creation of a broad-based provisional government to carry out a program outlining all
the necessary tasks.” These include: ‘‘1. dissolution of the 1983 Constitution; 2. duly
purging the government Armed Forces; 3. duly purging the judicial branch;” and
“4. joining the Nonaligned Movement to, consequently, carry out a struggle against
colonialism, neocolonialism, Zionism, racial discrimination and apartheid.” And I
ask the question here tonight, can anyone seriously question that the FMLN/FDR
guerrillas in El Salvador have as their goals nothing short of the violent overthrow of
the government of that country? I think the answer to that question is clear.

The next question appears for many to be much more difficult to answer. What is it
that the Government of Nicaragua, with the support of the Soviet Union and Cuba,
wants? As the Government of El Salvador and the Government to the United States
see it, and Ambassador Kirkpatrick spoke at length about this in today’s luncheon
address, Nicaragua wants to continue to be free to violate the borders and sovereignty
of El Salvador by engaging in the supply of arms, training and provision of command
control to the guerrillas in El Salvador. The Government of E] Salvador wants an end
to these violations. So does the United States. As President Reagan said last week:

Our interest in Nicaragua is one and one only. The present government of Nica-
ragua is exporting revolution to El Salvador, its neighbor, and is helping, sup-
porting and assisting and training the guerrillas that are trying to overthrow a
duly elected government. And as long as they do that we’re going to try and
inconvenience that government of Nicaragua until they stop that kind of action.

As to the issue of the existence and nature of U.S. support for the Contras, Presi-

dent Reagan said: “I’m not going to comment on that one way or another, or on the
tactics that are used in that kind of war.”

Now, is there anything about such a policy that contravenes international law? As-
suming that the charges made by the U.S. Administration against Nicaragua are fac-

'Watson, A Vote for Moderation, 103 NEWSWEEK 69-70 (Apr. 9, 1984).

150

tually supportable, can anyone doubt that Nicaragua would then violate the
prohibition in article 2(4) of the U.N. Charter against the threat or use of force? Can
anyone seriously contend that for a foreign country to arm, train and support guerril-
las in their attempts to overthrow their own government is compatible with its obliga-
tions under the U.N. Charter? Can any international lawyer seriously contend that the
victim of such attacks may not defend itself, either individually or collectively, provid-
ing that the means used are not unreasonably related and not disproportionate to the
end sought?

But Nicaragua denies that it was or is engaged in such activity. It characterizes the
U.S. charges as a tissue of lies to provide a pretext for congressional support of “‘cov-
ert” operations—the source, as Nicaragua sees it, of the real aggression in the region.

The operations in Nicaragua have understandably aroused concern among the
American people and in the American media. Many Americans are apparently pre-
pared to give credibility to the claims of the Government of Nicaragua above that of
the Government of the United States. But there is a tendency in this to ignore basic
facts about Nicaragua.

Our government has provided Congress with a detailed factual documentation of
the evidence of Nicaraguan and U.S. actions in Central America. As international
lawyers, we are naturally concerned with the principles of international law involved
in this situation. The principal one is the argument of proportionality of response.
Reality dictates, however, that in considering these principles we not ignore the un-
happy fact of lying, as a matter of diplomatic practice, by various states.

It is a fact that lying is for the Soviet bloc and its allies, like Libya, like Vietnam,
like Nicaragua, an accepted part of their diplomacy. When President John F. Ken-
nedy had in his possession aerial photographs of Soviet missiles in Cuba in 1962, So-
viet Foreign Minister Gromyko denied directly to Kennedy with Ambassador
Dobrynin present that his country had ever sent missiles to Cuba. More recently, I
heard Soviet Ambassador to the United Nations Oleg Troyanovsky vigorously deny
before the U.N. Security Council that his country had shot down the KAL civilian
airliner, apparently unaware of the fact that his fellow countrymen had already de-
cided to shift stories. Two weeks ago, I heard the Foreign Minister of Libya, during
the course of the Security Council deliberations on Sudan’s complaint about Libya’s
aerial bombing of that country, argue that obviously Sudan had bombed itself. The
North Vietnamese took delight for years in denying the existence of the Ho Chi Minh
Trail; today they proclaim its glories. As Professor John Norton Moore put it in his
recent piece in the American Journal of International Law: “The Soviet Union, as well

as its captive ‘socialist’ bloc, are ready to argue that down is up, or if need be, up is
down.”

What, then, of U.S. credibility? Can one reasonably believe that the Permanent
Select Committee on Intelligence of the House of Representatives, which is made up
predominantly of Democrats not sympathetic to the administration’s point of view,
and that the U.S. Senate Select Committee on Intelligence are mere pawns of the
administration, unable to form independent critical judgments? The May 13, 1983
House Report of the Permanent Select Committee on Intelligence concludes that the
guerrillas in El Salvador ‘“‘are well-trained, well-equipped with modern weapons and
supplies, and rely on the use of sites in Nicaragua for command and control and for
logistical support. The intelligence supporting these judgments provided to the Com-

2Moore, Grenada and the International Double Standard, 78 AJIL 145 (1984) at 168.

151

mittee is convincing.”” On March 29th of this year, Senator Daniel Patrick Moynihan,
in his capacity as Chairman of the Senate Committee on Intelligence, stated:

It is the judgment of the Senate Intelligence Committee that Nicaragua’s involve-
ment in the affairs of El Salvador, and to a lesser degree, its other neighbors,
continues .... Specifically, arms and materiel still flow from the communist bloc
through Nicaragua to the insurgents in E] Salvador. ... What the House Intelli-
gence Committee stated last May is still true: “The insurgency in El Salvador
depends for its lifeblood—arms, ammunition, financing, logistics and command-
and-control facilities—upon outside assistance from Nicaragua and Cuba.”

Can one reasonably believe that the distinguished list of Americans who composed
the National Bipartisan Commission on Central America were somehow duped in
reaching their conclusions about the role of Nicaragua? The Commission concluded:

Without such support (propaganda support, money, sanctuary, arms, supplies,
training, communications, intelligence, logistics) from Cuba, Nicaragua, and the
Soviet Union, neither in El Salvador nor elsewhere in Central America would
such an insurgency pose so severe a threat to the governments in the region... .
Therefore, curbing the insurgents’ violence in El Salvador requires, in part, cut-
ting them off from their sources of foreign support.

To be sure, the Kissinger Commission points out that increased military assistance
is only one part of the solution. Major focus must be placed on expanded support for
economic growth and social reform. The Commission recommended that the United
States should actively encourage the Contadora Process. The U.S. Administration
fully endorses the findings of the National Bipartisan Commission on Central
America. The Central America Democracy, Peace and Development Initiative Act of
1984, which the President recently transmitted to Congress, incorporates the Biparti-
san Commission recommendations.

Despite this, some international lawyers accept at face value Nicaragua’s protesta-
tions of innocence. Others seem to contend that because the level of Nicaragua’s aid
and assistance to the El Salvador guerrillas is not quantitatively significant, El Salva-
dor’s right to defend itself is accordingly diminished. Presumably because only ‘“mod-
est” amounts of arm shipments and training occurs, only “modest” violations of El
Salvador’s borders result. And because any strong response by El Salvador to these
violations may engender a larger war in the region, El Salvador must, under this the-
ory, tolerate violations of its territorial nights.

This “turn the cheek” philosophy has never won any acceptance in international
law. No nation ever willingly tolerates violations of its territorial integrity. The only
qualification is that the means be reasonable and proportionate to the end sought.

The United States has been accused of illegally aiding the Contras. It has been
charged that such aid is in violation of the doctrine of reasonable and proportionate
self-defense. Although in a democracy there is always room for argumentation about
the wisdom of a policy, the charge of illegality concerning U.S. actions in support of
the Government of El Salvador is insupportable. Brownlie in International Law and
the Use of Force by States remarks:

When it is obvious that a substantial body of the population is giving positive
support to the insurgents, who thus provide a serious challenge to the govern-
ment, and there is no question of foreign aid, moral or material, to the insurgents,
aid may be given to the government on the basis of the right assumed to exist in
customary international law of aiding a legitimate government.

152

And in the words of Hersch Lauterpacht: “. . . intervention is justified if there is

evidence of foreign subversion whether or not the conflict has the dimensions of a civil
war.”

Nor is there anything in international law that prohibits a government from provid-
ing assistance covertly if that assistance is lawful. Common sense tells us that covert
assistance is not discussed publicly. Congress accepts this principle; indeed, it is
widely recognized that the legal issues in covert operations have more to do with
domestic law, in terms of compliance with oversight requirements, than with interna-
tional law. The only real issue in international law, it seems to me, it whether military
assistance designed to stop one state’s active commitment to “revolution without fron-
tiers”, as the Sandinistas put it, is permissible. As previously explained, I believe that
that question answers itself. Thus, what we are left with is a factual policy dispute,

whose answers revolve more on perceptions of U.S. national interests and security
than on questions of international law.

REMARKS BY RHONDA COPELON*

Professor COPELON opened her remarks by saying that she was tempted to address
the “lies, distortions and disinformation” passed on by the Reagan Administration
and by the previous speaker, but she had come to address the issue of domestic en-
forcement and remedies for violations of international law. Professor COPELON said
she would focus on the issue of challenging the mining of Nicaragua’s harbors to
illustrate some of the issues common to litigation seeking to enforce international and
national law against U.S. intervention in Central America. Her remarks drew upon a
series of lawsuits brought by the Center for Constitutional Rights, which began with
the landmark decision in Filartiga v. Pena, holding that the international prohibition
against torture is enforceable in federal court.

Professor COPELON noted that she would address three types of national judicial
remedies for international conflict which were applicable to the mining of the Nicara-
guan harbor: (1) enforcement of international guarantees by the victims of the viola-
tions; (2) enforcement of the War Powers Resolution and war powers clause; and
(3) enforcement of the Neutrality Act.

She commenced with a discussion of the enforcement of international guarantees
through 28 USC 1350, the Alien Tort Claims Act, which entitled an alien to sue for
tort in violation of the law of nations and the treaties of the United States. She noted
that the Filartiga case had made clear the extraterritorial scope of 1350. Filartiga
involved the torture and death of a Paraguayan in Paraguay committed by a
Paraguayan official. Subsequently the victim’s sister came to the United States, lo-
cated the torturer and sued him in Federal district court. The Second Circuit Court of
Appeals had held that 28 USC 1350 provided jurisdiction over a cause of action in tort
where the tort was a violation of the law of nations.

In the case of the mining of the Nicaraguan harbors, Professor COPELON noted,
there were a number of potential alien plaintiffs, including shipowners and injured
crew people. As Professor Boyle had already discussed, the mining was a clear viola-
tion of the U.N. Charter, the OAS Charter, and could not be justified by a claim of
collective self-defense. A challenge to the mining under 1350 would raise several
questions not present in the Filartiga case. For example, in contrast to Filartiga, U.S.
Officials would be defendants in the case since they had directed and been responsible

* Associate Professor of Law, City University Law School of Queens College; Board Member, Center for
Constitutional Rights.

133

for the acts of those who had mined the harbors. While, Professor COPELON said,
U.S. officials should be no more able than foreign ones to claim immunity from liabil-
ity for clear violations of international law, the government invoked sovereign immu-
nity and separation of powers to protect them from suit under 1350. The issue should
be simply that of establishing the connection between the acts of the officials and the
violation, which in the case of the mining was conceded. In other cases, this issue had
involved multiple layers of authority. For example, Sanchez v. Reagan, then on ap-
peal, sought to hold U.S. officials responsible for the torts committed by the Contras
under the illegal covert action program superintended by U.S. officials.

Another question raised by Sanchez, and also potentially at issue in a challenge to
the mining, would concern the scope of relief in an action under § 1350. Damages
could be sought, including punitive damages, which were awarded by the district
court in Filartiga. In addition, to prevent further injury and violation of international
law one might want to ask for injunctive relief. While such a request appeared unnec-
essary because the mining had ceased, it was important in a case like Sanchez, where
the continuation of covert action and Contra operations threatened continuing injury
of enormous proportion. Needless to say, as the Vietnam War cases illustrated, it was
particularly difficult to convince the courts to stay the hand of foreign policy in the
name of the rule of law. The courts were quick to take refuge in the political question
doctrine whenever a question touching foreign policy arose. But, compared to other
alien tort claims litigation addressed to U.S. violations of international law in Central
America, the mining of the harbors should present an easier case, at least for mone-
tary relief.

Whether the War Powers Resolution would apply to the mining of the harbors was
not yet clear, Professor COPELON said, because the resolution was limited to the intro-
duction of U.S. armed forces. News reports had indicated that the CIA had played a
major hand in the mining. Whether the armed forces were involved would have to be
discovered, although it was difficult to believe that they were not. The legislative his-
tory of the War Powers Resolution indicated an intent that it not be applied to the
CIA. However, if the CIA merely had been performing roles previously assumed by
the armed forces, it would be appropriate to challenge the applicability of such exemp-
tion. She also noted the limitations of the War Powers Resolution as a remedy insofar
as it permitted the President to undertake military operations without Congressional
approval for 60 days.

Turning to consideration of the war powers clause of the Constitution, Professor
COPELON said that there was a role for congresspeople, American shippers and crews
as plaintiffs. The mining of the harbor had been an act of war and should, therefore,
constitute an undeclared war. In addition, Professor COPELON said that congressional
assent to the action in Nicaragua could not be implied through other conduct of Con-
gress, in contrast to the Vietnam War, where the courts—albeit wrongly—had con-
strued a succession of appropriations in the midst of an ongoing war as assent. Given
the restrictions set forth in the Boland Amendment, and close congressional supervi-
sion of U.S. aid to Central America, Professor COPELON said, no such implication
could be made. While the nonbinding resolution passed the previous day in the Senate
to “undeclare” war was politically significant, it should not be legally necessary to
preserve Congress’ opposition to the war. Unfortunately, there was considerable dan-
ger that by abdicating responsibility in this area, the courts would turn the war powers
clause on its head, requiring Congress repeatedly to undeclare war rather than re-
straining the executive unless and until Congress formally declared war. It was im-

154

portant that this Society address so critical an inversion of the fundamental separation
of powers.

Finally, Professor COPELON addressed the Neutrality Act. The mining had cer-
tainly been an operation of the type precluded by the act, as it had originated in the
United States in terms of orders, personnel, supervision and funding. To invoke the
Neutrality Act, a criminal statute, however, an indirect approach was needed, for no
private cause of action had been recognized by the courts. One fruitful avenue was to
use the Ethics in Government Act, as the Center for Constitutional Rights had re-
cently done to challenge covert action in Nicaragua. The Ethics in Government Act
required the Attorney General of the United States to conduct an investigation re-
specting the appointment of a special prosecutor whenever he received specific credi-
ble allegations of criminal conduct by high governmental officials. In the case of
Dellums vy. Smith, Congressman Ronald Dellums, a Nicaraguan doctor who had been
injured in a Contra raid, and a woman residing in Florida near the training camps had
filed a request for the appointment of a special prosecutor based on public information
about covert operations in Nicaragua. The Attorney General refused to investigate on
grounds that the information furnished was not specific enough. The Federal district
court ruled, Professor COPELON continued, that the information was sufficient to trig-
ger an investigation and that investigation was not a matter of prosecutorial discretion
but mandatory duty. The court emphasized that the point of the Ethics in Govern-
ment Act was to restrict prosecutorial discretion in cases where the Department of
Justice, as counsel to the President and Federal prosecutor, might experience a con-
flict of interest. The district court also rejected the government’s contention that the

Neutrality Act did not apply to governmental officials. At the time of the Annual
Meeting, the case was on appeal.

Professor COPELON observed that compelling an investigation was the first step. If
an investigation were conducted and the Attorney General were to report that there
was no reasonable basis for finding a violation of the Neutrality Act, it might be neces-
sary to ask the courts to reject the Attorney General’s report and order appointment
of a special prosecutor, although this was not explicitly provided for in the Act.

Having said all this, Professor COPELON noted that unless the legislative response
and public outcry were strong, the courts would be very reluctant to enforce the law
as they should. She believed that there were nonetheless important reasons, given the

escalating U.S. war in Central America, to challenge the courts to enforce interna-
tional and domestic guarantees.

To go to Federal court under these circumstances would test the principles of inter-
national law in the branch of this government where, in theory, they should be en-
forced as binding law. She pointed to the example of the Filartiga case, which had
rejected the notion that the prohibition against torture was no more than a nice idea, a
piece of unenforceable international rhetoric. The guarantee against torture took on
new power when it gave rise to a real remedy. The litigation required not only inter-
pretation of the international norm, but also recognition that international norms had
binding force and obliged nations not only to obey but also to enforce them. It addi-
tion, as with the Ethics in Government Act, it was critical that there be a direct rem-
edy, enforceable by individuals, without reliance on executive or legislative approval.
Traditionally, the fact that international law was frequently breached or the difficulties
of enforcing it had been invoked to negate its potential to function more effectively.
The times were too dangerous, Professor COPELON suggested, to treat international
law as exhortatory only. It was important to give international law teeth. The situa-
tion of U.S. aggression in Central America was dire; indeed the question of the sur-

135

vival of the planet was dire and the development of enforceable norms and limitations
was pressing.

In concluding, Professor COPELON suggested that the Annual Meeting adopt a res-
olution condemning, in addition to the mining of the harbors, the program of U.S.
intervention in Central America. One ought not lose sight, she said, of the whole
program while concentrating on this most recent outrage. Professor COPELON em-
phasized that the American Society of International Law had a special voice in the
making of international law as a reflection of the opinion of international law scholars.
It also had a central role to play—as it had in the formation of the OAS—in assisting

the effort to give effect to international law in the dangerous cauldron of contemporary
world politics.

DISCUSSION

In opening the panel to questions and comments from the floor, Professor FARER
remarked that one of the pleasures and prerogatives of chairmanship was the right to
ask the first question. He wanted to address one question to Allan Gerson and one to
Francis Boyle, because there hadn’t been a direct confrontation of legal issues, which
ought to take place before the conclusion of the panel.

To Allan Gerson, the question was, could the war in El Salvador be regarded as a
civil conflict, in which the rebels had achieved belligerent status and there was exter-
nal assistance to both sides? If that characterization of the conflict were accepted,
would the appropriate legal response be withdrawal of support by both sides? If that
would be an appropriate or acceptable legal response, from the point of view of the
administration, and since Nicaragua had offered this as a solution, should we be pre-
pared to negotiate and test the bona fides of the offer?

The question directed to Professor Boyle was the following: there was substantial
evidence of some degree of Nicaraguan support for insurgency in E] Salvador. Lauter-
pacht and Brownlie were not the only scholars who discriminated between the rights
of a recognized government to receive external assistance and the rights of rebels to
receive external assistance. Wasn’t it likely that this prejudice on behalf of recognized
governments enjoyed widespread support among U.N. members, and if so, what was
his response to Mr. Gerson’s point that the United States could (a) legitimately aid the
government of El Salvador while Nicaragua could not legitimately aid rebels, and

(b) that the United States could assist El Salvador in discouraging continued aid to the
rebels.

Mr. GERSON replied that before addressing Professor Farer’s question, he would
take the opportunity to comment on a statement of one of the other speakers and on

the response of the audience to that statement. He said that he felt compelled to make
such a comment.

He said that when Professor Copelon stood up after he finished speaking, she said
that she would not spend much time talking about the “lies and distortions” which
were heard from the Reagan Administration, but would talk about other matters, and
in fact she did. And at the end of her presentation, without ever having discussed the
basis of her allegations of lies and distortions, she asked that the American Society of
International Law pass a resolution condemning U.S. action in Central America. Mr.
GERSON noted that there was quite a bit of applause at the beginning of Professor
Copelon’s speech and that he had to comment on that, because it seemed to him that

both the comment she made and the applause in response belonged to the school of
“don’t confuse me with facts, I’ve made up my mind.”

156

Mr. GERSON said that, while he was hesitant and regretted to have to say the fol-
lowing, he felt strongly about it. He said that both the tenor of Professor Copelon’s
initial comment and the nature of the applause was an insult to the collective intelli-
gence of a learned body. He asked what it was in his remarks that could possibly be
construed as lies? He said that if the U.S. Government’s charges were factually sup-
portable, then the United States certainly was not acting in violation of international
law. He also could raise the question of credibility, Nicaragua’s credibility as opposed
to U.S. credibility, and he said that we could not lightly dismiss this. He didn’t want
to rehash all the facts of the Central America dispute, who started the fighting, what
response there was, etc. But we had mechanisms for making such inquiries: a Senate
Select Committee on Intelligence, which was supposed to make independent determi-
nations; a House Select Committee on Intelligence, which was composed primarily of
Democrats. The reason that the Bipartisan Commission on Central America, consist-
ing of distinguished Democrats and Republicans, had been established under the
chairmanship of Henry Kissinger was to act, in effect, as judges of this evidence. They
had reached conclusions. He argued this couldn’t be dismissed lightly, and that we
could not, as a learned body, afford to engage in applause when someone made denun-
ciatory statements without in the least attempting to support her allegations. Con-

clusory statements like that would be ruled out of order in almost any U.S. court of
law.

Now, as to the question, as he understood it, of when was foreign support permissi-
ble in the context of a civil war, when did a civil war reach a status of belligerency? If
fighting in a civil context reached the status of belligerency, was assistance to both
sides proper, or should assistance to both sides be withdrawn, and as a political mat-
ter, should the United States offer to negotiate the withdrawal of military support with
Nicaragua, if in fact the status of the fighting could legally be termed belligerent? Mr.
GERSON said that as he understood international law, a legitimate government—and
he did not think one could argue seriously that the government of El Salvador was not
a legitimate government; it was more legitimate than the great majority of govern-
ments in the world in that it had been elected through a fair electoral process, given
the circumstances—had asked the United States to assist it in its defense against the
continued violation of its borders by Nicaragua. The United States could certainly do
so. Had the conflict reached the status of belligerency? As he remembered interna-
tional law, belligerency usually occurred when the guerrillas could be said to maintain
effective control over a substantial portion of the territory, raising the question of
whether the central government, the recognized government, was really in control.
Now, in a state of belligerency, as he remembered international law, both sides were
entitled to foreign support. Did it make sense as a political matter for the United
States to discuss the mutual withdrawal of assistance? Certainly, he thought it made

good sense. The United States had in fact made that proposal within the context of
the Contadora Process.

Professor BOYLE then addressed the question posed to him by the Chairman. He
said he welcomed the question. In both Ambassador Kirkpatrick’s and Mr. Gerson’s
addresses, he had detected a total misconception of the role of international law in the
Western Hemisphere. At the turn of the century in the Western Hemisphere, it had
been agreed by international lawyers of the day that we in the Western Hemisphere
would be governed by a different system, an inter-American system of international
law, and in our relations with each other, as opposed to our relations with Europe, we
would be governed by a higher set of rules, not the same set of rules. So, when Am-
bassador Kirkpatrick or Mr. Gerson argued that when the Soviets did this, we could

157

do that, that was totally wrong. Again, in the Western Hemisphere, the standards
were higher, and they are supposed to be better because we believed that was the way
it should be in our own back yard. The final culmination of that belief had been the
OAS Charter. In Mr. Gerson’s talk tonight, he had not mentioned the OAS Charter
once. In Jeane Kirkpatrick’s speech that afternoon, there had been no mention of the
OAS Charter. It was as if it didn’t exist in the minds of the Reagan Administration.
It didn’t exist when it came to the invasion of Grenada—they had come up with this
little concoction of the OECS Charter. It didn’t exist now, as they concocted the
Condeca Charter or in their invocation of the Rio Pact. They had totally ignored the
OAS Charter. The OAS Charter set up higher standards and higher rules for Inter-
American states in relations with each other when there were disputes.

His response, then, to the question would be that if we had a legitimate grievance
with Nicaragua, or if El] Salvador had a legitimate grievance with Nicaragua, the best,
the only place to go would be the OAS. If it didn’t work, then turn to the U.N.
Security Council. The Reagan Administration had refused to use either of the two
multilateral approaches to the problem, because it preferred a unilateral military solu-
tion and that was clear from all the documentation available so far. He agreed with
Allan Gerson that mechanisms were available—three mechanisms, the OAS Charter,
and the U.N. peacekeeping mechanism, and the International Court of Justice, an-
other mechanism. If the facts were so clear, what were we afraid of? And the Reagan
Administration had rejected all three mechanisms for the peaceful settlement of this
dispute and preferred, again, unilateral military intervention.

Questions were then invited from the floor.

SIGMUND TIMBERG:* I myself have not heard any lies or distortions tonight; I do
not intend to move for a resolution, but I happen to be in disagreement with the
position presented. International law is not the only guide to correct U.S. policy in
trying to combat Communist influence, the forces that are destabilizing the area and
threatening democratic institutions. But it is a helpful starting point, particularly if
the United States wants to play a role of moral and political leadership in Latin
America. In my view, U.S. policy in this embroiled area has violated two norms of
international law and practice and one well-established rule of international law.
First, the countries of Central America, however objectionable their political struc-
tures, are sovereign states, and the United States should therefore avoid taking
paramilitary measures intended to coerce or destabilize the de facto or de jure govern-
ments of those states. Second, where there is international machinery qualified to deal
with the situation involving the security of the area, such as the OAS, the U.S. Gov-
ernment should use that machinery, and should refrain from going it alone; third, by
mining the three Nicaraguan ports, the United States has engaged in an act of war ina
clear-cut violation of international law. In the case of Nicaragua, both of these norms
of international law and practice have been violated. The present U.S. Administration
has on several occasions indicated approval of the efforts of a four-nation consortium
of democratic Latin American countries—Mexico, Venezuela, Colombia and Pan-
ama—which have insistently stated that the only way to establish stability and pro-
gress toward democracy in Central America is through the process of political
negotiations. Yet the same administration has unilaterally insisted on training Nicara-
guan counterrevolutionaries on Honduran soil, financing 9,000 antigovernment guer-
rillas located inside Nicaragua, undertaking reconnaissance flights to aid those
guerrillas, and holding naval exercises off the Nicaraguan coast for the purpose of

*Of the District of Columbia Bar.

158

intimidating the Nicaraguan Government. In the last week, we have learned that the
CIA has mined three ports of Nicaragua to the damage of Japanese, Dutch, Panama-
nian, Soviet and other vessels. The United States has since been in the role, once
unique to the USSR, of vetoing Security Council Resolutions otherwise unanimously
supported with the exception of the abstention of the United Kingdom, criticizing this

blockade.

From my own service on an interdepartmental blockade committee during World
War II—I was with the Board of Economic Warfare then—I have no doubt that the
mining of the Nicaraguan harbors constitutes an act of war, that it is in conflict with
international law, and as Premier Mitterand has said, with humanitarian considera-
tions. The other situation indicating the administration’s propensity for going it alone
is the Grenada invasion, which was an invasion searching for a justification. I would
like to indicate what the justifications were, and how they have been successively
abandoned. For example, if the United States is intervening to preserve democratic
institutions, why, under international law, couldn’t the USSR do the same to preserve.
socialist institutions, as it was doing in Afghanistan? In fact, the U.S. invasion of
Grenada was cited as a precedent by South Africa when it recently bombed guerrilla
outposts in Angola. I’m not shedding tears over the Communists who massacred
Maurice Bishop for the crime of trying to establish better relations with the United
States, but I want to call attention to the fact that the OAS has criticized the United
States for going in this direction, not out of any sympathy for Communism, but simply
because there is machinery available under the OAS Charter. Likewise, there was an

overwhelming vote in the U.N. General Assembly condemning and criticizing this
kind of intervention.

I would conclude by noting the Declaration of Independence; the colonies promul-
gated it out of decent respect for the opinion of mankind. The United States was a
fourth-rate power then, but it received international support for the Declaration.
Now the United States is a world power and must still maintain a position of decent

respect for the opinions of mankind. I am afraid that’s not being done with respect to
Grenada, Nicaragua or E] Salvador.

MARTIN FEINRIDER:* Professor Boyle has compared the substance of U.S. foreign
policy toward Latin America with that of 75 years ago, an observation I generally
agree with. But as troubling as that comparison is, more troubling is the fact that the
style of the present administration harkens back 15 years ago to the days of Richard
Nixon, or 20 years, to Lyndon Johnson. As one of the people who applauded Profes-
sor Copelon’s comments, I want to have the decency of explaining to Mr. Gerson why
I did so. This has been a whale of a week for me as an international lawyer, beginning
with an Orwellian tour de force by the President which provoked the near-impossible,
an almost unanimous resolution by this very heterogeneous Society deploring the re-
jection of World Court jurisdiction. This afternoon, Ambassador Kirkpatrick filibus-
tered us, taking bits and pieces apparently from various speeches she has delivered
previously, taking only two questions and rather cynically not answering either of
them. This evening, in comparing the good versus the evil empires in the world, you
called to mind the 1962 deception by the USSR in the Cuban missile crisis, and you
called to mind the Korean incident, the airliner incident. Do you think, sir, that we
don’t remember the U-2 affair? Do you think, and I have a real problem going into
detail, because we’ve only reserved these rooms until Saturday, do you think we don’t
remember the lies regarding Vietnam? Sir, this administration underestimated

*Associate Professor of Law, Nova University.

159

grossly, first, the intelligence of the members of this Society, and secondly, the intelli-
gence of the people of the United States. And though the American people normally
give an awful lot of faith in the area of foreign policy in the way of credit to an
administration, it begins to wear thin. I needed to stand up and associate myself with
the remarks of Professors Boyle and Copelon.

Chairman FARER: Perhaps we can all agree that from time to time governments
find it convenient not to tell the explicit truth. This will relieve us from having to
debate a very long and complicated and problematical history.

BEVERLY May CARL:* We have been tossing around labels this evening, and as
lawyers, we should be careful with labels. The fundamental problem we have to re-
member is poverty and hunger. I haven’t heard much talk about that. My first time
in Latin America was a visit to Guatemala in 1954, when I saw the U.S. CIA toss out
what, in 1984, would be considered a moderately reformist regime; this has been fol-
lowed by years of basically the same kinds of governments, dictatorships, and oppres-
sion. I have recently returned from 10 days in Nicaragua with seven volumes of the
new laws drafted by the Nicaraguan Government. I am in the process of analyzing
the laws and writing an article. I’ve talked to a number of lawyers in Nicaragua, and I
want to mention my ideas in connection with this.

I am not impressed with the Kissinger Report; he is not an expert on Latin America
and has never considered Latin America very important. Who are the Democrats put
on the commission? Are they people like the former president of the ASIL, Covey
Oliver, who knows something about Latin America? No. True, there were Democrats
on the Commission, but most of them are not specialists on Latin America. Washing-
ton, D.C., is filled with Democrats who are experts on Latin America who could have
been invited to join that commission but were not. I wonder to what degree Nicara-
gua really is supplying arms; even Mr: Gerson labeled it as modest. What I saw when
I was in Nicaragua convinces me that the country does not have a great deal in the

way of arms with which to defend itself. I saw 14- and 15-year-old boys and girls
training with broomsticks.

In terms of their laws, this government has been labeled “Communist.” I think it is
probably leftist; there is no doubt about that. But in analyzing the laws, I find some
interesting things. Approximately 60 percent of the industrial economy is still private.
The government has enacted incentive legislation to promote private investment and
has indicated that it wants a mixed economy. The government did confiscate the
property of the Somozas, and it did confiscate what it labeled abandoned property.
On the other hand, many of the things labeled by the newspapers as confiscations were
really not confiscations but expropriations. The law carefully provides for compensa-
tion at book value in 6.5-percent five-year bonds. With a 25-percent annual rate of
inflation, I admit this is not going to be full-market-value compensation. On the other
hand, it is not the total confiscation which is often characteristic of a typical Commu-
nist takeover. Finally, in the area of agriculture, the government has not purported to
confiscate or take over or expropriate the large private holdings. They admit that

their coffee, their exports, are needed. Ultimately, their goal in the agrarian area is
about 75-percent private.

I want to stress this issue of labels and query whether we should even be talking

about Nicaragua as a “Communist” country. It is not comparable to the USSR, but
we could force Nicaragua over to the Socialist camp.

*Professor of Law, Southern Methodist University.

160

Professor FARER: Mr. Gerson might like to comment on Professor Carl’s remarks,

although he did not raise the ideological character of the Nicaraguan Government as
an element of his analysis.

Mr. GERSON: I should say a word in terms of the last few comments, beginning
with the last comment, which expressed concern that we haven’t looked at the root
cause of the problem—hunger. Concern was also expressed that the National Biparti-
san Commission on Central America was not really bipartisan, composed of individu-
als capable of forming sound judgments about Latin America.

First, the last comment about hunger: I’d like to quote from the Kissinger Com-
mission Report, and then I’d like to comment on the nature of that Commission:

The people of Latin America have lived too long with poverty, deprivation and
violence. The current turmoil must not be allowed to shatter their hopes for a
brighter future. They have endured too many generations of neglect to let their
aspirations for democratic political development be dashed in this generation on
the rocks of fear, division and violence. Not least their own security, and ours,
must no longer be threatened by hostile powers which seek expansion of influence
through the exploitation of misery.

As far as the Kissinger Commission’s inability to deal with the issue, a certain
amount of credence has to be given, I think, to Congress. Congress has really raised
no objections—they thought that this was as fair a commission as one could hope to
put together to deal with such a problem.

There were comments made about Nicaragua, about seeing children in the streets
training with toy guns. There’s a long catalogue I could present, but I don’t want ot
go into a long rehash of the factual issues, of the nature of weapons, the tons and tons
of weapons that are being supplied by the U.S.S.R. to Nicaragua. It’s a matter of the
public record, and I would be glad to share it with you, but we’re not talking about toy
guns. What she did not mention about Nicaragua was the ideological nature of that
regime, about their commitment to a revolution without frontiers, and what that
means. She also did not talk about the rejection of democracy in Nicaragua.

Just one word about the jurisdiction of the OAS. The United States does not deny
that the OAS has a role to play. And it’s really rather specious to argue that because
neither Ambassador Kirkpatrick nor I mentioned the OAS in the short period of time
that we had available to deal with the issues that we meant to ignore the role of the
OAS. In fact, we believe that the OAS has a role, but the OAS agrees that the pri-
mary subregional organization at this point is the Contadora Group. Let me say that
the United States has fully endorsed the 21 points of the Contadora Group, which
include, among others (and this gets back to your earlier question, Tom, about
whether both sides should decide to withdraw military support) the prohibition of all
military forces, bases or advisors of non-Central American countries, and the commit-
ment to internal pluralism and free elections in all countries, the provision for verifica-
tion of ail agreements (which the Nicaraguans have refused—the United States has
proposed that an on-site inspection team be sent). The Nicaraguans have never gone
along with that idea and with respect for sovereignty and nonintervention. But as far
as the idea that the OAS Charter prevails—certainly, international law as we recog-
nize it is not the OAS Charter, it’s the U.N. Charter, and the OAS Charter is really
subordinate to it. The primary thing we must discuss within the context of the U.N.

Charter is article 2(4) and the rights a state has if article 2(4) is consistently being
violated by another state.

161

ALBERT S. GOLBERT:* It would be fair to say that many in the audience find the
administration’s position with respect to Latin America in general and Central

America in particular to be very much like that of the proverbial dog in the center of
four trees without a leg to stand on.

It is very difficult to reconcile much that has been heard. Ambassador Kirkpatrick
said at the luncheon that it was all right to ignore article 2(4) with respect to the
Soviet bloc countries or any of the areas in which they were pressing their interests,
because they don’t recognize national sovereignty, and when dealing with them, we
don’t need to recognize that sovereignty, either. In the afternoon sessions there have
been speakers suggesting that, perhaps, article 2(4) is being amended subtly by cus-
tom; there are precedents being established where the sanctions of article 2(4) aren’t
being applied and that perhaps these precedents establish the custom of selective non-
application which is, in a sophisticated manner, eroding the foundations of article
2(4). This suggests the current efforts to rewrite the Foreign Relations Law of the
United States, whereby in the case of conflict between treaties and custom, the latter

in time will prevail. There are many who find that notion rather insidious and con-
trary to historical U.S. practice.

With respect to particular issues being raised during the panel discussion, many find
it to be rather disturbing to think that the norms of international order can be endan-
gered by, especially, repeated violations; that there will now be grounds to conclude
that these violations can become a custom which will derogate from the norm, instead
of heretofore accepted standards dictating that a violation of the norm is the first step

toward the imposition of its sanction. I am confused and hope that the panel will shed
light on this perplexing problem.

ALFRED P. RUBIN:* I want to express my appreciation to Mr. Gerson for coming
down here and speaking frankly to us. I think it is probably the feeling of many—if
not a preponderance—of those in the audience who neither applauded nor hissed. I’m
sure he feels like a lion thrust in a den of moral Daniels. I don’t feel like a Daniel
myself—I’m not that sure of my morals—but I do appreciate Mr. Gerson’s position.

Although I disagree with just about everything he said, I disagree even more with
some of the other things said.

I want to refocus the conversation onto the law, if people don’t mind discussing the
law a bit. The legal issue is not whether the United States has been or is planning to
do anything illegal—since that implies certain moral judgments—but rather whether
our conduct has been unneutral and if so, what are the legal results flowing from that?
Or, if it is established that there is no belligerency in the area, whether U.S. conduct
has been justifiable in terms of the law—that is, what the legal result is of acting in
someone else’s territory, or in support of guerrillas acting in somebody else’s territory,
or in support of a recognized government in an internal conflict of some sort. What I
have in the back of my mind is something like the Alabama claims during the Civil
War. There, the United States insisted that the Confederate States were not legally
capable of “‘belligerency,” and assistance to them by the British was regarded as un-
friendly, if not unneutral. After the war, we got compensation for the injury to Amer-
ican ships which had been sunk by the Alabama, even though its actions had not been
supported by the British Government, which had simply permitted the ship to be
bought and fitted out by the Confederates from private British interests. With that in
the background, and my orientation in the laws of war coming to the fore, I confess to

*Of the California Bar. -
*Professor of International Law, The Fletcher School of Law and Diplomacy.

162

a certain amount of confusion over any attempt to embroil the discussion in something
other than the laws of war, to advocate public pressure on our courts. I find that
extremely distasteful and not at all likely to be productive.

It may be fun and games to play with the Constitution, but it doesn’t save lives; it is
just fun and games for lawyers. If one really wants to use the tools of law to apply to
U.S. involvement in Latin America, forget fun-and-games cases like Filartiga. I call it
that for reasons enumerated in my article in the International Practitioners’ Notebook.
It was not a torture case but a wrongful death case, and it applied the U.S. version of
what we said was the law of nations totally incorrectly as a matter of history and
jurisprudence. I don’t think the case could stand if any serious attention were paid to
it, as would have been the case if the defendant had had a lawyer rather than simply
fleeing the court, so that the court heard only one side. Instead, it seems to me that
the toils of the law, which always entrap those who act in ignorance of the law, might
better be brought to bear in other ways. For example, if the United States is successful
in arguing that it need not defend its actions in Central America before the Interna-
tional Court of Justice in response to Nicaragua’s complaint, the International Mari-
time Organization (IMO) could request an advisory opinion from the ICJ with regard
to the legality of placing, or being in the chain of causation that results in the placing,
of mines in a harbor in the absence of a status of war. Or, if there is a status of war,
whether an indiscriminate weapon such as a mine is legitimate to use. Or, if it is a
legitimate weapon, whether its use amounts to something like a blockade and whether
a blockade is legal, in the absence of either a declaration or effectiveness, the rule of 50
percent, which has been part of the law of nations at least since 1856.

How would such a finding manifest itself without getting into issues of Constitu-
tional law? If neutral vessels, or third-party vessels in the absence of a state of war,
suffer injuries that are compensable, then there will be a dispute between the vessel
owners and their insurance companies as to who will pay the compensation, a ques-
tion of whether the war exclusion clause in the insurance contract will relieve the
company of liability. There is no way that the United States could prevent such
claims from being brought, because it would not be a party—shades of Korea and
Vietnam. There would be no way, then, that the issue could be avoided either in the
ICJ or the IMO, or in the Southern District of New York, as in a possible case be-
tween The Netherlands and the representative of Lloyds of London. Another possibil-
ity would be the application of the Federal Tort Claims Act with regard to the actions
of the United States taking part in a conspiracy within the United States to supply
arms to those who wouid use them to commit torts in a foreign country, which in tum
could give rise to claims for damages. Under the rationale used for the request for
extradition in the Letelier case—a position to which I am totally opposed, but never-
theless it was the government’s position—conspiracy to violate the law in a foreign
country is a violation of our law, and we regard violations of any statute, including
criminal laws, as torts. It seems to me that the tort then being committed in the
United States—the conspiracy—is within the Federal Tort Claims Act, because if it
were done by a private individual, it would result in tort liability. If that were so, it
would be interesting to see how the U.S. Government would attempt to avoid tort
liability when the case was brought by a party injured through the acts of the Contras
or anyone else in Nicaragua, following the normal conflict-of-laws rules that would
apply in an American court, to look at the conspiracy law of Nicaragua to see if what
was done there violated that law, and to look at the conspiracy laws here for the
measure of damages. In such a case, the United States would find itself enmeshed in
the toils of the law whether it liked it or not, and regardless of arguments about article

163

51 of the U.N. Charter, regardless of all other arguments. It would be a snare which
the United States could not avoid.

PAUL REICHLER:* I would like first to address a misstatement, unintentional, I am
sure, on the part of Mr. Gerson with respect to Nicaragua’s role in the Contadora
Process. It is false to state that Nicaragua has rejected on-site verification, on-site
inspection, that would prohibit arms traffic across borders in Central America. In
fact, on December 1, 1983, the Nicaraguan government presented a package of trea-
ties addressing all 21 points in the Contadora declaration of objectives, including that
of eliminating arms traffic across the borders of the Central American countries. The
Nicaraguans proposed that there would be an on-site verification procedure whereby
the guarantors, the four Contradora countries who would be conducting the verifica-
tion, would have the right to assess fines against anyone found guilty of violating those
provisions.

I would also like to address the issue of the Reagan Administration’s credibility.
Mr. Gerson spent some time attempting to demonstrate or establish that credibility,
citing as sources the members of the House Intelligence Committee. Mr. Gerson,
however, overlooked something that I want to bring to the attention of this distin-
guished body and to Mr. Gerson himself. The Chairman of the Intelligence Commit-
tee of the House of Representatives, Edward Boland, has said the purpose and the
mission of the operation, that is, the covert operation against Nicaragua, is to over-
throw the government of Nicaragua. Lee Hamilton of Indiana, one of the most distin-
guished members of the House of Representatives stated: “We are now supporting a
large army inside Nicaragua. We can no longer deny that we are fighting a mercenary
war in Nicaragua to overthrow the government of that country.” Wyche Fowler of
Georgia, the Chairman of the Intelligence Operations Oversight Subcommittee of the
House Intelligence Committee said: “There was no indigenous uprising of Ni-
caraguans against the Sandinista Government before the U.S. decided to finance such

an uprising.” And another “extreme left-winger,” Congressman James Wright, the
Majority Leader, said:

Those whom we have recruited, trained, financed, equipped, and sent into that
country [Nicaragua] state unequivocally that their purpose is to overthrow the
government of that country. For us to say that it is otherwise, really is to evade
the fact and render ourselves subject to the censure of our friends and colleagues
throughout the Hemisphere. Our acts in Nicaragua, the so-called covert acts,
which are not covert at all, in equipping and financing and maintaining some
12,000 troops in Nicaragua, is regarded throughout Latin America as a reckless
invasion. It frightens them; they think it is a time bomb that is going to set off a
conflagration throughout the hemisphere. They regard this as a violation of the
OAS Charter. As a matter of plain fact, it is. Because what the United States has
done, quite frankly—and let’s be honest with ourselves—has been to finance an
invasion from outside a sovereign country.

There has been a lot of talk—mere talk—over the last several years. It has been re-
peated so many times that people accept it as true, that Nicaragua is engaged in mas-
Sive, or substantial, violations of the sovereignty of El Salvador, by its so-called
Support of the guerrillas in that country. Nicaragua, of course, denies those allega-
tions. I won’t comment on whether they are true or false. But, as a lawyer, I suggest
that the dispute be resolved in court. Nicaragua is already there, having pledged to
abide by any judgment the International Court of Justice renders, even if it is unfavor-

*Of the District of Columbia Bar; advocate for Nicaragua in Nicaragua v. United States, before the
International Court of Justice.

164

able to the Government of Nicaragua. I invite Mr. Gerson and the administration he

represents to meet the Nicaraguan representatives in the Hague; we will be waiting for
him.

JOHN ROGERs:* I want to focus not on the international issues, but on the judicial
enforcement of the war powers clause, and international law rules and controversies
being resolved in the domestic courts of the United States, issues which were raised by
Ms. Copelon. I was counsel for the government on appeal in some of those cases, and
I don’t think it would be appropriate to respond substantially to those arguments or

try to argue them here. The government will have its chance to respond to those
arguments in the courts.

In reference to Ms. Copelon’s remarks, it is an understatement to say that the
courts are reluctant to take that kind of case. The courts have been uniformly hostile
to the war powers clause and Alien Torts Statute § 1350 claims brought against the
U.S. Government. The district court threw out Sanchez Espinoza vy. Reagan, a case
involving Nicaragua, on political question grounds. Both the district court and the
Court of Appeals for the District of Columbia Circuit threw out Crocket y. Reagan, a
challenge to American actions in El Salvador, on political question grounds; in Rami-
rez Arrano v. Weinberger, which is a somewhat related case, both the district court and
the court of appeals threw the case out first on political question, and then on equita-
ble discretion grounds (the case was being reheard en banc). Those were the cases
involving the U.S. Government, despite the outcome of Filartiga. The D.C. Circuit
Court, in a case not involving the U.S. Government, but involving the Alien Tort
Statute, affirmed dismissal of a case involving terrorism; two of the three independent
opinions on the D.C. Circuit rejected the theory of the Filartiga case. While the the-
ory is an interesting one, its success in court remains doubtful.

Professor FARER: I would like to ask Mr. Gerson a question. To my knowledge,
the Nicaraguan package did contain the provision recognizing in general terms the
need for verification. What is your view on the issue? I thought that you had said that

the Nicaraguans had rejected the verification provision. Would you comment briefly
on that point?

Mr. GERSON: To the best of my knowledge, the United States had made the recom-
mendation for a verification provision, which the Government of Nicaragua then re-
jected. It is the current position of the U.S. Government that it agrees with the
proposal within the 21 points of the Contadora Group that there be a prohibition of
all military forces, and that there be verifiable arrangements to determine which na-
tions are supplying arms to back insurgents abroad. The United States accepted the
proposal of verification; it didn’t reject it.

Professor BOYLE: The real question is not whether to continue for another hour to
debate the situation. It seems to me that the facts are fairly clear to most people. The
question is, where do we go from here? How to solve the problem? There are two
approaches: the Reagan Administration’s approach, which is essentially one of law-
lessness, violence, unilateral military intervention, that has led to the deaths, already,

~—of a large number of people in Central America, in E] Salvador, Honduras and Nica-

ragua, and at some point in Costa Rica, and that will probably lead to the introduc-
tion of U.S. military forces into field combat situations. Indeed, in today’s Wall Street
Journal and New York Times, you will find that they are already in combat situations
in the air. There’s that approach. Or, there is the approach to the collective mecha-

“Professor of Law, University of Kentucky; on leave of absence at the U.S. Department of Justice. Mr.
Rogers spoke in his personal capacity.

165

nisms of the OAS. In my opinion, and I think, in the opinion of most informed ob-
servers, the Contadora approach was always viewed by the Reagan Administration as
a smoke screen (1) to continue justifying its unilateral military intervention, and (2) to
continue trying to justify its refusal to go to the OAS with the problem. Allan Gerson
once again fails to point out the relationship between the OAS and the United Na-
tions. It is not a question of superior versus inferior; throughout the 1960s, as you will
find if you read the debates in the Security Council whenever inter-American
problems were discussed there, the United States was always on record that these
problems, in accordance with both the U.N. Charter and the OAS Charter, should
first be dealt with at the OAS, and only if the OAS failed to deal with the problem
would the U.N. Security Council have a role to play. For example, we successfully
made this argument when Cuba supported guerrillas in Venezuela. We eventually
resorted to the OAS, the OAS took up the problem, sanctions were imposed on Cuba,
and the attempt to infiltrate Venezuela stopped. I think the OAS has a very good
track record in this area, and the failure of the Reagan Administration to resort to the
OAS only indicates to me that it prefers a unilateral military solution. Likewise, Mr.
Gerson is saying Congress has supported this or that policy. The fact is, you can’t
have it both ways. The U.S. law on the subject is quite clear, and again we see a
pattern of lawlessness and illegality on the part of this administration. They totally
ignored the War Powers Act when they first introduced U.S. troops into El Salvador.
They are violating it today. They are violating the Neutrality Act, both 18 USC 960,
expeditions against friendly nations, and 18 USC 956, conspiracy to injure the prop-
erty of a foreign government. Those are crimes, felonies. The Ethics in Government
Act applies. The attempt by the Reagan Administration to amend the declaration of
acceptance of the compulsory jurisdiction of the ICJ unilaterally is unconstitutional; it
is an attempt by the President to amend a U.S. treaty without receiving the advice and
consent of the Senate. The declaration of acceptance is a treaty; it sets up a treaty
regime. What gives the President the right to amend a treaty? Nothing. Finally, the
last and most telling example of where Congress stands on this matter is the Boland
Amendment, which says—and it’s still law and it’s still on the books—the President
can’t spend a dime for the purpose of overthrowing the Sandinista government in
Nicaragua. If funds are to be used, it is only for the purpose of interdicting any flow
of weapons, equipment and supplies from Nicaragua into E] Salvador, assuming that
is really going on to any major extent. That’s the law, and the President doesn’t care.

I turn now to the argument, that Allan Gerson made, President Reagan made,
Ambassador Jeane Kirkpatrick made, that there is a need for the United States to go
in and promote democracy in Nicaragua. Again, history tells us something here. We
have just experienced a coup in Nigeria. I haven’t heard anyone say here that the U.S.
Government should be intervening unilaterally to promote democracy in Nigeria.
Why is it different in Nicaragua? I'll tell you historically why—it goes back to the

_days of Woodrow Wilson. Up until the time of Woodrow Wilson, the U.S. policy on

recognition had always been that prescribed in the correspondence between
Gouverneur Morris and Gouverneur Thomas Jefferson, which was essentially that we
didn’t care what form a government might take. This was in response, by the way, to
the Jacobin government in the French Revolution. As long as it seemed that it had
the support of the people, we were prepared to recognize it. Wilson changed that
policy only in regard to Latin American states, and particularly in Central America
and the Caribbean Basin, and he began to say, henceforth we would recognize, or not
recognize, in accordance with whether or not governments had been popularly
elected, were democratic, or whatever. It was a radical departure from the traditional
policy of U.S. recognition. This doctrine is never applied anywhere else in the world:

166

we have never purported to do it; only in Central America and the Caribbean Basin.
And why? Again, the historical record shows that Wilson and his successors have
always used this policy as a pretext to intervene and use force to put in governments
favorably disposed to the interests of the United States. It had nothing at all to do
with democracy the first, second and third times we intervened in Nicaragua; it had
nothing at all to do with democracy when we intervened in Grenada; and it has noth-
ing at all to do with democracy in El Salvador or Nicaragua today.

Professor COPELON: I have a few brief comments. In response to Alfred Rubin, I
am shocked to hear that the attempt to enforce international norms is fun and games.
I take very seriously the effort to enforce international law, even when one does not
anticipate that the courts will approach this with open arms, as is particularly the case
where issues of foreign policy are involved. The Filartiga case is a good example. The
court did not initially approach the case with open arms. When we reached the circuit
level—where, by the way, the defendant was very well represented by counsel—we
were told that we should give up. What in the world were we doing in a U.S. Federal
court with an international claim involving events that had no contacts with the
United States and would be seen as meddling in the internal affairs of another nation?
We insisted that domestic law authorized a remedy for the violation of international
law. There were many who thought this was absurd. But it goes to the issue of
whether or not we allow the disregard of international law in controversial political
contexts to remain the custom.

I have also been thinking about whether it would be possible to apologize to Mr.
Gerson for using the term “lies.” It seems to me that he himself several times con-
tended that other nations lie, and I see little reason to exclude our own. I suppose I
could have been more literary and used a term like “doublespeak” to describe the
stance of the administration. But I cannot apologize because I have felt horrified, as I
did during the invasion of Grenada, at the administration’s lawlessness and the trans-
parency of its excuses. The claim that our aggression against Nicaragua is based on
their passing arms to El Salvador is a cover for a policy designed to destabilize and
destroy a legitimate government whose threat to U.S. interests in Central America
comes not from its exportation of war but from its aspiration to build a peaceful soci-
ety which addresses human needs. If I ruffled some feathers, it was my responsibility
to do so. Euphemisms dull the sensibilities, mask the depth of horror and reassure the
responsible. It feels no more comfortable to me than to Mr. Gerson, but it is neces-
sary to call a spade a spade.

Finally the idea that a resolution from this body is designed to pressure the courts is

simply an argument against taking the responsibility that our specialty, let alone our
humanity, casts upon us.

Mr. GERSON: I share some of the concerns expressed by the other panelists. I
share the concern about where the United States goes from here. I also share a certain
concern that so many people would think this was all by way of protest, in order to
allow the United States to do as it wishes with Nicaragua, which it supposedly views
as the spoiled child of the hemisphere and that we had manufactured all of the claims.
The claims of Nicaraguan violations of the borders and territorial integrity of El Sal-
vador, the supply of arms, training, command, control did not originate with the Rea-
gan Administration. They originated with the Carter Administration. And shortly
after the Reagan Administration assumed office, a White Paper was issued, largely on
the basis of material put together by the Carter Administration. It was the first White
Paper, and it’s publically available, published on February 23, 1981, entitled ““Com-
munist Interference in El Salvador.” There are lots of photos showing the nature of

167

weapons, the nature of the affidavits obtained from individuals, photos of boats going
across the Bay of Fonseca, etc. But people deny that we have a problem. It just
doesn’t exist, they say. Then, we take a look at Congress—no one denies what Con-
gress has concluded. On May 13, 1983, the Permanent Select Committee on Intelli-
gence of the House of Representatives stated: “The Committee reiterates its earlier
findings that the guerrillas in E] Salvador are well-trained, well-equipped with modern
weapons and supplies, and rely on the use of sites in Nicaragua for command and
control and for logistical support. The intelligence supporting these judgments pro-
vided to the Committee is convincing.” And here we have something else which is
published information, released by the Department of State and the Department of
Defense on May 27, 1983, with pictures, some satellite photos indicating the nature of
the weapons that are being sent across, nicely colored maps that illustrate how the
weapons are shipped, etc. Then we have most recently the statement by Senator Moy-
nihan in his capacity as chairman of the Senate Select Committee on Intelligence,
reiterating that the insurgency in El Salvador depends for its lifeblood, arms, ammuni-
tion, financing, logistics and command control facilities, upon outside assistance from
Nicaragua and Cuba. Then we have the Kissinger Commission. Are all these people
fabricating this? Do we really not have a problem at all? That’s difficult for me to
believe. If we do have a problem, the question is, how do we respond to that problem?
The problem, which everyone seems to see—everyone in terms of the Congress, Sen-
ate, House, Bipartisan Commission, Carter Administration—is that there is this con-
tinuation in supplies of arms and support. The Reagan Administration has gone on
record as saying this and that this only is the purpose of U.S. actions in Central
America. What should we do? How should we respond? Well, you have a situation
in which we contend that most of the weapons are being shipped across the Bay of
Fonseca, and that you have landing strips, cleared land throughout Honduras—which
are very difficult to destroy, because they’re makeshift landing strips, in rain forest
territory. What should we do? How should we interdict these supplies? Certainly,
we're entitled under international law to help the government of El Salvador. How
shall we help them? Shall we send in the marines? Shall we send in the Navy, or shall

we find less harmful ways in terms of the U.S. commitment to try to prevent the
continuation of this effort?

We talk about the OAS. And I said that the United States has no objections
whatever in going to the OAS. I think that Professor Boyle has it slightly wrong. It
wasn’t the United States that detoured the jurisdiction of the OAS; it was Nicaragua.
In the course of the last two years, Nicaragua has brought no less than six complaints
before the Security Council. Two of those complaints alleged an imminent invasion
by the United States. And each time we suggested that the appropriate forum of first
recourse was the OAS, but, nevertheless, we recognized that the Security Council was
entitled to hear the complaint. So it’s not the United States which has been going to
the Security Council instead of the OAS, it’s Nicaragua.

There’s a lot of misperception about what Ambassador Jeane Kirkpatrick had to
say in terms of our fidelity to article 2(4) of the U.N. Charter. My copanelist, Profes-
sor Copelon, suggested that we couldn’t allow disregard of rules to become custom.
What Ambassador Kirkpatrick tried to point out was the nature of the reality regard-
ing observance and fidelity to Security Council Resolution 242 as we see it, from our
vantage point—this is my third year there—at the Security Council. Our perceptions
of reality are always shaped, I suppose, by what influences us, by what we see. And
what we see when we sit over there is a consistent effort in the General Assembly and
in the Security Council to pass one resolution after another which legitimize the ‘‘use

168

of all available means” in support of wars of national liberation. Wars of national
liberation are seen by the Soviet bloc as an exemption from prohibitions of article 2(4).
That’s not a theory—that’s a statement of fact. So, the question becomes, what are we
to do in these circumstances, where we have continued violation of the territorial
sovereignty of El] Salvador by Nicaragua; what methods are we to employ? And, as
I’ve tried to suggest, I really see no difference between using covert and overt means. I
think the issue of covert means in terms of international law is largely a bogus issue; I
think of covert operations more in terms of domestic law. There has to be appropriate
oversight. But if the action itself is lawful, if intervention is permissible on behalf of

the government overtly, then it’s certainly also permissible covertly. Then it’s simply
a question of tactics.

So what are we to do? Well, it’s been suggested that we just go to the OAS and let
them handle it. The OAS recognizes the Contadora Process. And in the meantime,
it’s suggested that no more arms be supplied to the Government of El Salvador; but
then, all you have to do is read Newsweek, which is no dupe of the administration.
Read the last issue of Newsweek; it contains a detailed, factual account of the mines
that were placed in the roads to prevent people from going to the booths to participate
in elections held last month in El Salvador. What are we to do in those circum-
stances? If we wait, if we stop supplying arms to the government of El Salvador, the
guerrillas may succeed in their aim of toppling that government. Should we sit by and
just let that happen? That, I think, is the real issue. And I realize the dangers in-
volved, and I share the concern about those dangers, and about possible escalation.
But I think that a serious student of what has occurred in the region, someone who
believes that it is impossible that all of this has been fabricated, that various commit-
tees of the House and Senate, and the Bipartisan Commission and the Carter Admin-
istration have all been duped that there is this problem, has to grapple with it and
can’t dismiss it in the way that Francis Boyle suggests.

Professor FARER: In closing I should try to sum up the differences among the
speakers. In my judgment, it comes down essentially to the following.

On Mr. Gerson’s part, his judgment of the facts is that there is assistance to the
rebel movement in El Salvador by a state, Nicaragua, and that this is a violation of
article 2(4), and that it justifies an act of collective self-defense, which includes assist-
ance to the recognized Government of El Salvador, which would be legitimate, I take
it, under his view, in any case, even without the benefit of article 51, because it was
requested by a recognized government. Covert actions against the Government of
Nicaragua are also legitimate, as they are a relatively modest and proportional re-
sponse. I take it that is Mr. Gerson’s point.

Professor Boyle’s point is that until other remedies have been exhausted, and he’s
emphasized the remedy of the OAS, a recourse to force as a method of dealing with

the problem raised by the possible assistance of some degree from Nicaragua to the
rebels in E] Salvador is illegitimate.

From the point of view of a number of questioners, another alternative (in addition
to the OAS) not exhausted is actual negotiations with the Nicaraguan Government,
and until such negotiations are held, and they are seen to fail, the remedies which the
United States has adopted should be regarded as disproportionate or excessive. I take
it that those are the main positions that have emerged here, and I regret that they
haven’t been as fully developed as they might have been, but I think that is partially
because all of us feel very deeply about these issues (and there is still a great deal of
dispute about the facts) so I’ve been as careful as possible to present the factual issue

169

in a hypothetical form. I’m confident we’re not going to resolve either factual issues
or the disputed legal issues tonight.

LORETTA SPRISSLER*
Reporter

*The American Society of International Law.

Po

THE LEGAL DISTORTIONS BEHIND THE REAGAN ADMINISTRATION'S
CHEMICAL AND BIOLOGICAL WARFARE BUILDUP

by

Francis A. Boyle
Professor of Law
University of Illinois College of Law
3904 East Pennsylvania Avenue
Champaign, [Illinois 61820
(Phone: 217-333-7954)

Prepared for a Congressional Briefing

by the Committee for Responsible Genetics

September 13, 1985

©) 1985 by Francis. A. Boyle.

All Rights Reserved.

Defending Nonviolent
Civil Disobedience

Against the Reagan Administration
Under International Law

Francis A. Boyle

ince January of 1981, the people of the world have witnessed a

U.S. government that demonstrates little if any respect for fun-

damental considerations of international law and organizations, let
alone appreciation of the requirements for maintaining international
peace and security. What we have watched instead is a comprehensive
and malicious assault upon the integrity of the international legal order
by a group of men and women who are thoroughly Machiavellian in
their perception of international relations and in their conduct of both
foreign and domestic affairs. This is not simply a question of us giving or
withholding the benefit of the doubt from a U.S. government charged
with the security of both its own citizens and those of its allies in
Europe, the Western Hemisphere, and the Pacific. Rather, the Reagan
administration’s foreign policy represents a gross deviation from those
basic rules of international deportment and civilized behavior that the
United States government has traditionally promoted for the entire
world community. Even more seriously, in several instances, the Reagan
administration’s foreign policy has constituted ongoing criminal activity
under well-recognized principles of both international law and U/S.
domestic law.

In direct reaction to and in protest of the Reagan administration’s
wanton attack upon the international and domestic legal orders,
numerous American citizens have engaged in various forms of non-
violent civil disobedience. For example, the Reagan administration’s

FRANCIS A. BOYLE is a Professor of Law at the University of Illinois College of

Law, Champaign, Illinois 61820. Professor Boyle received his J.D. and Ph.D. from

Harvard University. He has published widely in the field of international law.
Copyright (c) 1985 by Francis A. Boyle. All rights reserved.

110 CRIME AND SOCIAL JUSTICE No. 24

In Defense of Civil Disobedience 111

offensive nuclear weapons build-up has generated protests by numerous
groups and individuals against U.S. nuclear weapons installations, facili-
ties, programs, and personalities around this country and abroad. In this
regard, the Greenham Common Women and the Catholic nonviolent
civil disobedience group known as Pax Christi are two of the most prom-
inent movements.

Similarly, the Reagan administration’s inexcusable policy of so-called
“constructive engagement” toward the criminal apartheid regime in
South Africa has spawned a nationwide campaign against apartheid and
U.S. complicity. Protests have been mounted against, for example, the
South African Embassy in Washington, D.C., South African consulates
around the country, and business establishments that sell krugerrands.
On college campuses, students are vigorously demanding that their
administrators divest university portfolios of all stock held in American
companies that do business in South Africa. These protests have led to
numerous arrests and prosecutions for several types of nonviolent civil
disobedience activities designed to produce official and unofficial con-
demnation of and sanction against apartheid.

The Reagan administration’s illegal military intervention in El! Sal-
vador, Honduras, Costa Rica, and Nicaragua has probably been
responsible for the greatest number and degree of nonviolent civil disobe-
dience activities in America today. First comes the so-called “Sanctuary
Movement,” which now consists of 237 American church and synagogue
communities that are currently providing sanctuary to refugees fleeing
the conflicts of Central America in dire fear for their lives. In explicit
violation of the requirements of both the 1967 Protocol to the U.N. Con-
vention Relating to the Status of Refugees and the U.S. Refugees Act of
1980, the Reagan administration has refused to give these refugees pol-
itical asylum so as not to undercut the pseudo-legitimacy of the U.S.-
backed military dictatorships that currently rule El Salvador and Guate-
mala. To sustain this reprehensible policy, the Reagan administration has
now launched a vendetta against the church people who have organized
the sanctuary movement because of their deeply held religious convic-
tions by prosecuting them to the absolute limit of the law, if not beyond,
despite the protection afforded by the First and Fourth Amendments to
the U.S. Constitution.

Last, but not least, comes the so-called Pledge of Resistance Move-
ment, whose 45,000 members have taken a vow that in the event the
Reagan administration decides to launch an invasion of Nicaragua, its
membership will engage in a nationwide campaign of nonviolent civil
disobedience activities. The Pledge of Resistance Movement has already
called out its members once to demonstrate against the recent vote by
Congress to provide so-called nonmilitary assistance to the U-S.-
supported contra mercenary bands that are illegally opposing the legiti-
mate government of Nicaragua in violation of the U.N. Charter, the OAS

=

.

l ‘* BOYLE

Charter, and the Geneva Conventions of 1949. These activities consisted
of sit-ins and other forms of nonviolent protest conducted at the offices
of U.S. representatives and senators who voted to repeal the so-called
Boland Amendment that had prohibited assistance to the contras since
its enactment in October 1984.

Probably on a regular basis there are thousands of people in the U.S.
who are planning, committed to, or actively participating in nonviolent
civil disobedience activities directed against some aspect of the Reagan
administration’s foreign policies. In my opinion, these activities repre-
sent a positive development for the future role of democratic government
in the U.S. Due to the personal popularity of President Reagan, Congress
has proven to be pusillanimous when it comes to the enforcement of
respect for its own laws by the executive branch of government. More-
over, the courts are essentially powerless to prevent or impede the gross
international lawlessness of the Reagan administration. Even when given
a rare Opportunity to exercise some small degree of restraint on executive
branch excesses in foreign affairs, judges have generally decided to defer
to presidential lawlessness under the so-called doctrines of “political
question” or “judicial restraint.” For the most part, the judiciary has
completely abnegated any constructive role it might have played in sup-
port of the popular demand that American foreign policy be conducted
in accordance with the requirements of both international and domestic
law.

Thus we have witnessed a total breakdown of the constitutional doc-
trine of separation of powers when it comes to the illegal and oftentimes
criminal conduct of foreign policy by the Reagan administration. Con-
sequently, many citizens have decided to act on their own cognizance in
order to demand that the Reagan administration adhere to the principles
of international law, of U.S. domestic law, and of our own Constitution
in foreign affairs. Historically, such actions have been defined to con-
stitute classic instances of nonviolent civil disobedience. And the tradi-
tional admonition for those who knowingly engage in nonviolent civil
disobedience has always been that they must meekly accept their punish-
ment for having performed a prima facie breach of the positive law as a
demonstration of their good faith and moral commitment. In my opin-
ion, nothing should be further from the truth.

Here I would like to suggest a different way of thinking about non-
violent civil disobedience to prevent or impede ongoing criminal activity
by members of the Reagan administration. Namely, such activities repre-
sent the last constitutional avenue open to the American people to
preserve their democratic form of government with its historical commit-
ment to the rule of law, and thus the last hope we have to prevent the
Reagan administration from moving even further down the path of law-
less violence in Southern Africa, military intervention in Central
America, and nuclear warfare with the Soviet Union. Under the First

In Defense of Civil Disobedience 113

Amendment to the U.S. Constitution, these protesters are exercising their
right “peaceably to assemble, and to petition the government for a re-
dress of grievances.” Note that the First Amendment does not require
their assembly to be “lawful” in a positivist technical sense, but only that
it be peaceable. Similarly, ongoing criminal activity committed by mem-
bers of the government itself is certainly the type of grievance that people
should have a right to petition for redress by means of nonviolent civil
disobedience. I would argue, therefore, that we must recognize the exis-
tence of a First Amendment right for the people to engage in acts of non-
violent civil disobedience, specifically intended for the purpose of
preventing or impeding ongoing criminal activity in the conduct of U.S.
foreign policy.

For the time being, the net effect of this injunction would be that the
final arbiter of the constitutionality, technical legality, and overall legiti-
macy of such acts of nonviolent civil disobedience becomes the Ameri-
can people themselves. In particular, under the Sixth and Fourteenth
Amendments to the U.S. Constitution, those individuals who have been
indicted for alleged prima facie breaches of positive law by engaging in
acts of nonviolent civil disobedience are generally entitled to a trial by a
jury of their own peers. Thus, it is the American criminal jury system
that shall prove to be the last bastion of democracy and law against the
Reagan administration’s pernicious assault on both. I would submit that
under the existing political conditions in the U.S., our jury system has
now become a long-overlooked fourth institution in the separation of
powers system created by the Constitution.

Of course, the American jury system consists of common, everyday,
ordinary citizens. Most Americans consider themselves to be law-abiding
and peaceful, and strongly believe that their government should be law-
abiding and peaceful as well. The fate of those prosecuted for nonviolent
civil disobedience has thus been committed by the Constitution to the
common sense of decency, justice, fair play, and peaceableness, so
characteristic of the members of an American jury. If members of Amer-
ican juries are made aware of the Reagan administration’s gross interna-
tional lawlessness, I do not think they will convict those who engage in
acts of nonviolent civil disobedience for the express purpose of stopping
il.

If juries refuse to convict these protesters, then it is obvious that the
latter have committed no crimes. In essence, the jury would have ratified
sub silentio the argument that such protesters were merely engaged in an
exercise of their First Amendment right to peaceably assemble and to
petition their government for a redress of grievances.

It is in this fashion, then, that I believe we should come to reconcep-
tualize what had previously been thought of as acts of nonviolent civil
disobedience. These are not crimes and the people who engage in them
are not criminals—at least until they have been proven to be guilty

Te

.

=

114 BOYLE

beyond a reasonable doubt by a jury. Hence it is no longer the case that
we should expect those who have performed acts of nonviolent civil dis-
obedience to meekly accept any punishment for having committed an
alleged prima facie breach of a positive law.

Over the past several years of the Reagan administration, I have been
involved in giving advice, counsel, and assistance to individuals and
groups who have engaged in acts of nonviolent civil disobedience
directed against various aspects of the Reagan administration’s foreign
policy. In one capacity or another, I have worked with the Anti-Nuclear
Protest Movement, the Sanctuary Movement, the Anti-Apartheid Move-
ment, and the Pledge of Resistance Movement, among others. I have also
participated in the defense of individuals who are not part of formal
movements but nevertheless have resorted to nonviolent civil disobedi-
ence to protest the Reagan administration’s foreign policies toward
nuclear weapons, Central America, Southern Africa, and the Middle East.

Throughout these years of opposition to the Reagan administration’s
international lawlessness, we have experienced many disappointments,
setbacks, and failures in the defense of those engaged in nonviolent civil
disobedience. Too many brave, courageous, and principled people have
gone to jail or otherwise been punished simply for opposing the ongoing
commission of international and domestic crimes by the Reagan
administration. Some of the very best and most admirable people pro-
duced by contemporary American society have been treated as if they
were common criminals, and oftentimes punished more seriously than
murderers, robbers, and rapists.

That is, until now. Just recently, two criminal cases have produced a
major breakthrough for the defense of those engaged in nonviolent civil
disobedience against the Reagan administration under international law:
People vs. Jarka, No. 002170, in the Circuit Court of Lake County, Wau-
kegan, Illinois; and Chicago vs. Streeter, No. 85-108644, in the Circuit
Court of Cook County, Chicago, Illinois. In both cases, the defendants
were acquitted by invoking the traditional common law defense called
“necessity” as incorporated into the Illinois Criminal Code. According to
Illinois Revised Statutes, Chapter 38, Paragraphs 7-13, conduct which
would otherwise be an offense is justifiable by reason of “necessity” if
the accused was without blame in occasioning or developing the situation
and reasonably believed such conduct was necessary to avoid a public or
private injury greater than the injury which might reasonably result from
his own conduct.

In the Jarka case, the defendants were protesting U.S. military inter-
vention in Central America and the Reagan administration’s offensive
nuclear weapons build-up at the Great Lakes Naval Training Center on
November 14, 1984. The defendants were charged with the relatively
serious crimes of mob action and resisting arrest, despite the fact that
they had only linked arms and sat down in the middle of the road in

In Defense of Civil Disobedience 115

front of the base. After a three-and-one-half-day courtroom trial in which
defense attorneys produced eight expert witnesses on nuclear weapons,
Central America, and international law, the defendants were acquitted of
all charges on April 15, 1985.

Even more significantly, to the best of my knowledge, for the first
time ever in the annals of American jurisprudence, the judge in the Jarka
case actually instructed the jury that the threat or use of nuclear weapons
violated international law. To quote the exact language of this path-
breaking instruction as read to the Jarka jury by Judge Alphonse F. Witt:
“The use or threat of use of nuclear weapons is a war crime or an
attempted war crime because such use would violate international law by
Causing unnecessary suffering, failing to distinguish between combatants
and noncombatants and poisoning its targets by radiation.” Judge Witt’s
courageous decision to issue this instruction represented the successful
culmination of four years of vigorous efforts by the members of the Law-
yers Committee on Nuclear Policy, which had been publicly arguing this
position since its foundation in 1981.

The stunning victory in Jarka was immediately used as a precedent
for establishing the defendants’ right to the “necessity” defense in the
Streeter trial, which was held approximately one month later in Chicago.
Indeed, there was close cooperation between the respective teams of
defense attorneys in Jarka and Streeter, and this author served as a con-
sultant to both groups of attorneys on questions of international law. In
the Streeter case, the defendants attempted to meet with the South Afri-
can Consul at his office in Chicago to discuss that country’s policy of
apartheid. When he refused to do so, the defendants refused to leave the
corridors of a building outside the consulate offices and were eventually
arrested and indicted for violating a provision of the City of Chicago
Municipal Code prohibiting ‘unlawful trespass.” To substantiate their
defense of necessity, the defense attorney team presented at trial several
expert witnesses who testified to the effect that the government of South
Africa has been committing crimes by its policies of apartheid and that
the defendants acted reasonably in their efforts to prevent the continua-
tion of these crimes. Once again, in this case too, the jury acquitted the
defendants of all charges brought against them.

Because of the precedential significance of Jarka, the Editors of
Crime and Social Justice have kindly offered to permit the publication of
a slightly edited version of the expert witness testimony this author gave
to the jury on international law as it relates to nuclear weapons and U.S.
intervention in Central America. This testimony is printed here in the
hope that it will be useful in the numerous attempts now being made
around the country by defense attorneys who are invoking the Jarka and
Streeter cases as precedents for the defense of other individuals who have
engaged in acts of nonviolent civil disobedience against the Reagan
administration’s foreign policy under principles of international law. It is

, od
116 BOYLE

our hope that my Jarka testimony will be of assistance to these protes-
ters and their attorneys, and of interest to their supporters and sympa-
thizers.

It is crucial for preserving the future of our democratic system of gov-
ernment, with its historical commitment to the rule of law both at home
and abroad, that we conscientiously and systematically pursue analogous
defense strategies under international law. If properly publicized, each
acquittal or hung jury will encourage other private citizens to engage in
similar nonviolent civil disobedience activities. In the case of an acquit-
tal, a jury of their peers would have already determined that the protes-
ters’ actions were definitely not criminal behavior, but rather perfectly
lawful conduct. In the case of a hung jury, the presumption of innocence
with respect to such activities would still remain undisturbed. Further-
more, a series of acquittals or hung juries in such nonviolent civil disobe-
dience cases will send a strong message to those in power that the
ordinary people of America who comprise juries will no longer tolerate
their government’s pursuit of patently illegal foreign policies that con-
stitute Ongoing criminal activity under well-recognized principles of
international and domestic law.

This author once received an unsolicited telephone call from a
woman who, in an unnecessarily self-deprecating tone of voice, identi-
fied herself as an ordinary middle-class, middle-aged housewife living in
a typical suburb near Denver, Colorado, wanting to discuss the following
matter: She and a group of similarly situated friends had an appointment
in a few days with the Director of the Rocky Mountain Nuclear Arsenal
and at that time planned to place him under citizen’s arrest in his own
office for the commission of crimes against international law! Unless and
until the ordinary people of America rise up to challenge the elemental
lawlessness of the Reagan administration, the future of the human race
will be determined by those Machiavellians who occupy positions of
power and influence in America’s government, its sycophantic think-
tanks, and its prostituted universities. We must mobilize the common
people to save humanity from these self-styled experts. Only then can we
expect to see some fundamental changes in the nature of the predicament
created by the Reagan administration’s gross international lawlessness
that confronts America and the world today.

TESTIMONY OF PROFESSOR FRANCIS BOYLE IN THE CASE OF
PEOPLE VS. JARKA, NO. 002170 IN THE CIRCUIT COURT OF
LAKE COUNTY, WAUKEGAN, ILLINOIS, APRIL 11, 1985.

(The following proceedings were had in the presence and hearing of
the jury.) (Witness sworn.)

FRANCIS ANTHONY BOYLE, called as a witness on behalf of the

Defendants, having been first duly sworn, was examined and testified as
follows:

In Defense of Civil Disobedience 117

DIRECT EXAMINATION BY MS. HOFT

Q. Professor Boyle, could you state your full name for the record.

A. My name is Francis Anthony Boyle.

Q. What is your occupation?

A. I’m a professor of International Law at the University of Illinois in
Champaign.

[All further direct examination that was required to qualify the wit-
ness as an expert on international law as it relates to nuclear weapons
and Central America has been deleted here because of space
limitations— Editors. }

Q. At this point, we would ask that Professor Boyle be qualified as an
expert and if the State’s Attorney would like to cross examine him on
that, we would open him up to that.

MR. SEMMELMAN: No objection.

THE COURT: Very well.

Q. (BY MS. HOFT) Could you describe for us this, what may be, to
the members of this jury, a rather nebulous concept of international law,
what is it?

A. I think it’s important to keep in mind that international law is not
some foreign alien substance that has been established by an outside
body or group of states. Rather the current international legal system that
we see today was set up essentially by the United States of America at
the end of the Second World War, not all of it, but most of it, the great
body of legal rules that I'll be discussing here today. And the reason why
the United States government set these institutions and these rules and
bodies of law up such as the United Nations Charter, the Nuremberg
Principles, the O0AS—

Q. Have you told us what OAS is?

A. I’m sorry. The Organization of American States—the United
Nations Charter, the Geneva Conventions, Nuremberg Principles—
others Ill be discussing, was the belief that in the Post-World War era if
the United States of America ever wanted to avoid the scourge of another
World War, it would be necessary to have a rule of law that would be
established for the purpose of adjudicating disputes between states, num-
ber one; maintaining international peace and security, number two; and
then number three, promoting and advancing international human
rights. So, it is what we see today, the rules of international law that the
United States at least historically, until this administration, has always
taken the leading role in trying to develop—rules of international law
and international organizations for peaceful settlements of disputes and
the protection of human rights.

Q. You talked about the U.S. role in initiating this international body
of law. How is the United States bound by international law?

A. We're bound both internationally and domestically. The basic
principle of customary international law is that treaties should be

.
.
4

118 BOYLE

obeyed. When the United States government enters into a treaty with
another state, that treaty is submitted to the Senate to receive its advice
and consent as required by the United States Constitution, and once that
treaty has received its advice and consent, it is then a binding obligation
on the United States both in its relations with other states and also in
internal law; that is, in our internal relations. And U.S. courts, the
United States government, and indeed, sometimes even United States
citizens are then bound to act in a manner in accordance with the treaty
as required by that treaty.

Q. Does the United States Constitution tell us anything about the
authority that international law should play?

A. Yes. Article Six of the United States Constitution contains what is
called the “Supremacy Clause,” and that is quite explicit. It says that all
treaties are entitled to be treated as the supreme law of the land. That is
the exact language—the supreme law of the land.

The United States Supreme Court in two other cases has held that
that protection, that mght to be treated as the supreme law of the land,
also applies to executive agreements. An executive agreement is an inter-
national agreement that also binds the United States government but has
not received the formal advice and consent of the Senate for procedural
reasons. But it is still binding on the U.S. government, and it is entitled
to be treated as the supreme law of the land. And indeed, what that
means then is that if there exists an inconsistent federal or state law, the
treaty should prevail.

Q. Professor Boyle, turning your attention specifically now to nuclear
weapons policy on international law, what principles of this general body
of international law are relevant to the use and the threat of use of
nuclear weapons?

A. Well, you have to go back and look a bit at the history of the
development of these principles. Basically, the basic source of these rules
goes back to the First and Second Hague Peace Conferences of 1899 and
1907, and since the rules of the 1899 conference have been incorporated
into the 1907 conference with the Hague Convention—it’s called ““Hague
Convention No. 4”’—on the conduct of land warfare, and if you read
through this convention to which the United States government is bound
as a party, you'll see several principles that are articulated therein first—

Q. Specifically, Professor Boyle, does international law prohibit the
use of weapons in any way?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. Your answer?

THE WITNESS: Yes.

Q. (BY MS. HOFT) And in what way does it do that?

A. For example, you cannot use weapons that cause unnecessary suf-
fering on human beings. A typical example of this was the early
convention dealing with dum-dum bullets, bullets that would enter the

In Defense of Civil Disobedience 119

body and expand and rip apart your insides. That was prohibited. And
the whole body of this started with the St. Petersburg Declaration of 1868
that prohibited bullets of a very small, little size, so small, beneath the
certain size, that created serious problems in finding them and pulling
them out. So indeed, any weapon that is considered to cause unnecessary
suffering is clearly prohibited, and that is also a principle of law you can
find in the Hague Regulations.

Second, poison. It’s quite clear, and indeed, on this I speak not
simply of the Hague Regulations, but you can even find this in the
Department of Army’s Field Manual on the conduct of land warfare put
out by our government and also by the Department of Navy. Poison or
the use of poison weapons is clearly prohibited by the Hague Regulations
and likewise by the Geneva Protocol of 1925. The United States govern-
ment is a party to the Geneva Protocol. We joined in 1975, and that pro-
tocol specifically prohibits the use of poison gas, chemical weapons, or
poison or biological weapons or any form of analogous substance or liq-
uid. This would apply to weapons involving radiation since it is
determined that radiation is toxic, poisonous to man. So, any use of
those would violate the Hague Regulations and the Geneva Protocol of
1925.

A third basic principle is you cannot adopt methods or tactics of war-
fare or weapons that fail to distinguish between combatants and non-
combatants; that is, between soldiers and civilians. Indeed, the whole
basis, the whole premise of the laws of war, which the United States gov-
ernment fully supports by the way, is this distinction between combat-
ants and non-combatants; that soldiers are in the business of fighting and
dying, but civilians aren’t. So, therefore, it is only permitted for a govern-
ment to conduct its hostilities against armed combatants, not innocent
civilians.

Nuclear weapons fail to make the distinction between combatants
and non-combatants. We have nearly 10,000 nuclear warheads in the
United States targeted on the Soviet Union and a substantial portion of
these are directly targeted on civilian population centers.

MR. SEMMELMAN: I have to object to the last portion. There
seems to be no foundation on that last statement. He was called as an
expert on international law.

THE COURT: I’m going to sustain the objection as to the last com-
ment concerning targeted weapons. It wasn’t really responsive to your
question. I think your question was answered and would you ask another
question.

Q. (BY MS. HOFT) Upon what do you base your opinion that
nuclear weapons relate to violations of these international principles that
you’ve enunciated?

A. The clearest body of rules that would relate to nuclear weapons
and illegality of the use or threat of nuclear weapons are the Nuremberg

120 BOYLE

Principles. I suspect all of you have heard of the Nuremberg Tribunal
that was established after the Second World War, and it was established
at the direct request of the United States government. This was our tri-
bunal. They wanted to take out the Nazis and shoot them, but Roosevelt
insisted there be a trial and that these men be judged in accordance with
due process of law and in accordance with the rule of law. This tribunal
resulted in a judgment and also eventually in a set of principles that, in
turn, were approved by unanimous vote of the United Nations General
Assembly and is considered binding upon every government in the world
today. And these principles are three: it establishes, first, what are known
as “crimes against peace.” That is waging an aggressive war or a war that
would violate international agreements or treaties. Second, “crimes
against humanity.” Crimes against humanity, at least in the Nuremberg
Charter, attempted to deal with Hitler’s extermination of the Jews and
other national groups in Europe that Hitler believed were not entitled to
be treated as human beings. And if you read, certainly, the definition of
crimes against humanity, you’ll see one salient point in there for nuclear
warfare talking about wanton destruction of cities. Destruction of cities is
a crime against humanity. And the third principle set forth by the
Nuremberg Tribunal, the third substantive crime was “war crimes”; that
is, violations of the laws and customs of warfare. Moreover, the Nurem-
berg Principles, the judgment and the charter, also established inchoate
crimes with respect to these substantive offenses; that is, crimes that did
not approach the point of actually committing the substantive offense
itself, but attempt to commit these crimes was made a crime itself.

Q. Professor Boyle, could you give us some examples of what you
mean by this inchoate attempt crime?

A. Attempt to commit a crime against peace, against humanity, or
war crime is a crime itself, or planning or preparation to commit a crime
against peace, crime against humanity, or war crime is a crime itself.
Incitement to commit these crimes is a crime itself, or conspiracy to
commit a crime against peace, a crime against humanity, or a war crime
is a crime itself. And clearly, the United States government today is plan-
ning, preparing, and conspiring to commit at a minimum crimes against
humanity and war crimes.

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained to the last statement.

MR. SEMMELMAN: I ask the jury be asked—

THE COURT: The jury will disregard it. There has been no founda-
tion for such an opinion, and it’s ten after noon. I think we'll take a
break for lunch.

Q. (BY MS. HOFT) Professor Boyle, could you tell us briefly what
the Genocide Convention of 1948 is?

In Defense of Civil Disobedience 121

A. Yes. If you remember, I was discussing the Nuremberg Principles;
and, particularly, the one crime that was established therein called crime
against humanity. That was intended to deal, as I mentioned, with Hit-
ler’s policy of exterminating German Jews.

In an effort to make sure that this never happened again; that is, a
government pursuing a policy of trying to kill members of a group
because of their racial, ethnic, national, or religious character, the United
States government sponsored the Genocide Convention. It was drafted
and approved by the United Nations General Assembly, and it built
upon the principle of a crime against humanity.

The Genocide Convention then specifically prohibits any government
official, whether military or civilian, from pursuing policies that would
be designed to kill or inflict deleterious harm upon even one individual
because of his racial, ethnic, religious, or national characteristics. In addi-
tion, the Convention also makes it a crime to conspire to commit geno-
cide. Likewise, planning and preparation to commit genocide in times of
peace is a crime under the Genocide Convention. And the Genocide
Convention today is certainly considered to be a matter of customary
international law binding upon all governments of the world community.

Q. Professor Boyle, have you informed yourself as to the effects of
nuclear war?

A. Yes. | am a member of a group known as the Lawyers Committee
on Nuclear Policy, and I am part of their Council. [Purely foundational
testimony by the witness has been deleted here in the interest of space—
Editors. }

Q. Professor Boyle, how do nuclear weapons violate the principles of

crimes against humanity and other principles of international law that
you have enunciated?

MR. SEMMELMAN: Objection.

MS. HOFT: How do they violate those laws?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. You may answer.

THE WITNESS: Well, you have to look at how the United States
government realistically contemplates using its nuclear weapons forces.
And from all that I have studied, that appears in the public records, I
don’t see how, among the various scenarios that the United States gov-
ernment has developed for the use of nuclear weapons, they can be con-
sistent with the requirements of international law. The plans for the
targeting of the U.S. nuclear weapons are found in what is known as the
Single Integrated Operational Plan, or the SIOP, and this consists of a list
of targets that are going to be destroyed in the Soviet Union in the event
of a nuclear war. Right now, we have approximately 10,000 strategic
nuclear warheads targeted for delivery on all major population centers,
military command centers, and nuclear weapons sites in the Soviet
Union. If those weapons, as they are currently planned to do, are

» .

LZ2 BOYLE

dropped on Soviet cities, this would clearly violate the Nuremberg Prin-
ciples. As I mentioned to you, this is a crime against humanity, which
specifically prohibits the wanton destruction of cities; nothing could be
clearer. It would clearly violate the Hague Regulations. It would clearly
violate the Genocide Convention. And I am just talking about the minor
violations here.

Q. How does it appear that the United States is preparing to violate
the Genocide Convention?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. Go ahead.

THE WITNESS: There is a—in the literature, there developed,
during the Carter administration, what is known as the Presidential
Directive 59, that | am sure some of you read in the newspapers, that
dealt with a revision of this plan for the targeting of nuclear weapons on
the Soviet Union. Within this Presidential Directive 59, according to
what I have read and what has been recorded, there was a plan for what
is known as counter-ethnic targeting, which is that the United States gov-
ernment would drop a very large number of nuclear weapons on certain
cities in the Soviet Union that are inhabited by members of the Great
Russian ethnic group in the Soviet Union. The Soviets have about 120
ethnic groups, and the Great Russians are just about 50% of the popula-
tion; and they are the ones who rule that country. This targeting doctrine
called for their destruction not because they were enemies, but simply
because they were Great Russians.

And under the Genocide Convention, that is specifically prohibited.
You cannot kill people just as Hitler could not kill people because they
were Jews. U.S. government officials can’t kill people because they are
Great Russians, and yet that apparently is what our government is plan-
ning to do. In the event of a war, the cities that are inhabited by the
Great Russians, particularly Moscow, Leningrad, will be devastated sev-
eral times over so that there is no realistic possibility anyone could sur-
vive.

Q. Professor Boyle, what duties or liabilities are imposed under inter-
national law on nations that threaten or use nuclear weapons?

A. The best principle here is a United States Supreme Court case,
Application of Yamashita, which built upon the Far Eastern equivalent of
the Nuremberg Tribunal. After the war in the Pacific, there was an inter-
national military tribunal established to try Japanese war criminals. And
one of the war criminals tried there was General Yamashita. He was a
military commander of an island that had on it U.S. prisoners of war.
And while the island was being invaded, apparently some of the soldiers,
subject to his command, though without his knowledge, proceeded to
commit atrocities on U.S. prisoners of war.

In Defense of Civil Disobedience 123

After the war, he was tried for war crimes, and he himself was held
responsible for the atrocities perpetrated by his soldiers, even though he
did not know that they had engaged in these atrocities; did not order it.

He was convicted by the military tribunal and the principle that was
enunciated at that time by the tribunal was that all military officers or
civilian officials who know or should have known that troops or other
individuals subject to their control were about to commit or. have com-
mitted war crimes are fully responsible themselves for those crimes and
can be punished as war criminals.

That principle then was upheld by the United States Supreme Court.
Yamashita was sentenced to death; and in order to avoid the death pen-
alty, he petitioned to the United States Supreme court on habeas corpus.
The United States Supreme Court denied that and upheld the principle
which I just enunciated to you; namely, all civilian officials or military
officers who knew or should have known that troops or other individuals
subject to their control have committed or are about to commit war
crimes, and they either failed to stop it or else failed to punish violators
of the laws and customs of war, are likewise responsible for those war
crimes themselves.

Now, that’s official U.S. law, and you can find that rule enunciated in
the United States Army Field Manual of 1956. You can find that rule
enunciated in the United States Navy’s Field Manual. That’s standard
black letter rule for both international law and U.S. domestic law and
our soldiers and sailors are trained in accordance with that.

So applying that to the question of nuclear weapons, one would have
to say that those United States government officials who know or should
have known that nuclear targeting is being done in a manner to devastate
Soviet cities simply for the purpose of killing large numbers of people as
opposed to legitimate military targets or for the purpose of killing Great
Russians simply because they are Great Russians and not anything else,
are responsible for those crimes.

Q. You mentioned the Navy. Is it your opinion that the Navy is vio-

lating not only its own proclamations but also the mandates of
international law?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Sustained as to that.

Q. (BY MS. HOFT) You mentioned the Navy Field Manual. What
does that Field Manual require?

MR. SEMMELMAN: Objection, Judge.

THE COURT: It’s an awfully broad question. Sustained.

Q. (BY MS. HOFT) Have you read the document of the U.S. Navy in
regard to nuclear weapons policy?

THE WITNESS: Yes. The United States Navy has a field manual—

MR. SEMMELMAN: Objection, Judge.

THE COURT: That objection is overruled.

*

124 BOYLE

MR. SEMMELMAN: Judge—

THE COURT: I guess the answer is yes to your question. Put another
question.

Q. (BY MS. HOFT) And is that field manual an official document of
the U.S. Navy?

THE WITNESS: Yes. This field manual was produced by the U.S.
Navy in 1955 and is distributed to all naval officers in the field. In that
manual there is—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Sustained. Question was answered.

Q. (BY MS. HOFT) What is the purpose of that Navy Field Manual?

THE WITNESS: It is to tell naval officers how they should conduct
their operations in the field and consistent with the laws of war and the
laws of humanitarian armed conflict; particularly, as I mentioned to
you—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained. Again, the witness did answer
your question.

Q. (BY MS. HOFT) Okay. In your opinion, is sitting in the middle of
the road a smaller evil than the nuclear weapons policy of the United
States government?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection is sustained.

Q. (BY MS. HOFT) Professor Boyle, based on your research and your
expertise in international law, do you have an opinion as to the illegality
of the nuclear weapons policy of the U.S. government?

THE WITNESS: I do,

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled.

Q. (BY MS. HOFT) And what is that opinion?

THE WITNESS: In my opinion, and I have stated this in articles and
have delivered it in conferences, all the United States government offi-
cials and also officials of the Soviet Union who launch or wage their
nuclear war either on the United States or respectively on the Soviet
Union, would be guilty of crimes against peace, crimes against humanity,
war crimes, grave breaches of the Geneva Conventions, and acts of geno-
cide at a minimum. And most probably, they would all be subject to
prosecution and conviction as war criminals just as what happened at
Nuremberg and as happened in the Far East after the Second World War.

Q. Professor Boyle, in your opinion, what is the responsibility of an
individual citizen of the U.S. government in regards to complicity in this
illegality?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained.

Q. (BY MS. HOFT) Have you reviewed documents in international
law that provide a duty upon individual citizens of the United States?

In Defense of Civil Disobedience 125

THE WITNESS: There is recognized in the—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Well, I guess, Professor, that could call for a yes or no.

THE WITNESS: Yes.

THE COURT: All right.

Q. (BY MS. HOFT) And what is that responsibility, if you will, of
individual citizens of the U.S. government?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Little more foundation for this response, please.

Q. (BY MS. HOFT) Okay. Within what principle of international law
does any responsibility on the part of the U.S. citizens come?

THE WITNESS: There would be two sources of international law
applicable, I think, to our situation. The first would be again the judg-
ment of the Nuremberg Tribunal itself, once for the purpose of prose-
cuting Nazi war criminals. And in the Nuremberg judgment, if you read
it, there is language to the effect—and here they were talking about the
crimes being perpetrated by Hitler against German Jews, against Rus-
sians, Slavs, and Gypsies, and many others—indicating that citizens did
have an obligation to take whatever steps they could to try to prevent
these types of heinous crimes.

The second source, for my opinion, would be the Statute of the Inter-
national Court of Justice, Article 38. That article sets forth what are
known as the sources of international law. One of the sources of interna-
tional law is what is known as General Principles of Law Recognized by
All Civilized Nations. General Principles of Law Recognized by All—

MR. SEMMELMAN: Objection, Judge. I’d ask the witness not repeat
a statement.

THE COURT: Objection overruled. Go ahead.

THE WITNESS: One of these General Principles of Law Recognized
by All Civilized Nations is the duty to act to prevent the commission of
crime. And so in this opinion, I could certainly say under international
law, as a General Principle of Law, there is certainly a duty to act to
prevent the commission of threatened war crimes, crimes against peace,
crimes against humanity, and genocide.

Q. (BY MS. HOFT): Switching now, Professor Boyle, to the concept
of international law and U‘S. intervention in Central America. Are you
familiar with the United States government’s policies towards those
countries?

THE WITNESS: Yes, I am.

Q. And how have you familiarized yourself with those policies?

A. Well, I have studied this matter at great length, research, writing;
the same way as I have done with nuclear weapons. I have lectured on
the subject, debated on the subject, and I have also traveled in the Carib-
bean area.

Q. And are the sources that you have mentioned generally relied upon
by other experts in the international law field?

l 26 BOYLE

A. Yes, they are.

Q. Are you familiar with the recent intervention in November of last
year in Grenada?

A. Yes, Iam.

Q. And do you have an opinion as to the legality of the U.S. invasion
of that island?

A. Yes. I was the—

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. Go ahead.

THE WITNESS: I was the organizer of a group of ten international
law professors here in the United States of America issuing a statement
claiming and condemning the invasion of Grenada as a violation of inter-
national law. Particularly, the Charter of the United Nations and the
Charter of the Organization of American States. Those were the two
basic principles of law that in my opinion were violated with respect to
Grenada.

Q. (BY MS. HOFT): What does the United Nations Charter require
in order for one country to perpetrate any kind of intervention in another
country?

THE WITNESS: Well, the general principle of the United Nations
Charter is found in Article 2(4). That prohibits the threat or use of
force—and it’s important to make clear, threat or use of force—in inter-
national relations directed against the territorial integrity or political
independence of any state or in any other manner inconsistent with the
terms of the United Nations Charter.

Now, that principle, as I said, and the whole Charter itself, was the
idea of the United States government. This was our principle, our idea.
There is one major exception, and that can be found in Article 51 of the
United Nations Charter. That exception provides that in the event of an
armed attack upon your state or a neighboring state, you have a right, an
automatic right, to defend yourself or to defend that neighboring state
from the armed attack.

The problem was that with respect to Grenada, there is absolutely no
evidence at all that Grenada was about to attack anyone. And so the
invasion of Grenada would not fit within the terms of this exception to
Article 2(4).

Q. What does the Organization of American States provide as to
when a state can intervene in the internal or external affairs of member
states?

A. The Charter of the Organization of American States again was
founded by the United States of America. This was our idea; we set it up.
It too incorporates the principle of Article 2(4) of the United Nations
Charter; and in addition, has this Article 51 exception for self-defense.
However, it is even more explicit than the United Nations Charter about
various forms of intervention. And it states quite clearly that interven-

In Defense of Civil Disobedience 127

tion by one American state into the affairs of another American state iS
absolutely prohibited for any reason whatsoever. It’s quite clear. You can
read it. It was formulated at the direct request of the Latin American
states, who had objections to the policy that had been pursued by the
United States government during the first three decades of this century,
whereby they were repeatedly sending marines down to various countries
in Central America and the Caribbean, interfering in their domestic
affairs.

We wanted the Latin American countries to join up in the OAS, and
one of the conditions for doing this was our agreement to this principle
that intervention into domestic affairs of Latin American states would be
prohibited for any reason whatsoever.

Q. Do you have an opinion as to what the effect of the Grenada inva-
sion is upon an understanding of the policies of the current
administration toward other countries in Central America?

MR. SEMMELMAN: Objection.

THE COURT: I will overrule it. Go ahead.

THE WITNESS: There is a direct connection in my opinion. It’s a bit
technical, so please bear with me. I don’t mean to sound too much like a
lawyer.

The Reagan administration, as I am sure you read from the news-
papers, attempted to claim it had a right to invade Grenada by this
grouping of little islands in the Eastern Caribbean called the Organization
of Eastern Caribbean States. Certainly, in my opinion, that is just an
incorrect legal argument. It is made very clear in the terms of both the
OAS Charter and the U.N. Charter that the obligations of both those
charters prevail over. any other type of international commitment or
arrangement that the United States government might be a party to.

So this little group of states could not authorize an invasion of
Grenada. But shortly after Grenada was invaded, the Reagan administra-
tion then attempted to set up a similar type of grouping in Central Amer-
ica, which is known as the Central American Defense Council Pact. And
the reason being, that since apparently they were successful in convincing
the American people that this little grouping of American states could
authorize the invasion of Grenada, this other group, which is known by
the Spanish acronym CONDECA, could likewise authorize military
action against Nicaragua. But, again, as a matter of law, I think it’s incor-
rect. It is made quite clear in the terms of the OAS Charter and the
United Nations Charter that the obligations of both those charters must
prevail over any other obligations or arrangements or pacts or groups of
States.

And by the way, I should point out that the CONDECA Pact was set

up aboard a United States battleship, which sort of gives an indication of
its legality.

eee

a

128 BOYLE

Q. Turning specifically to Nicaragua. Are you familiar with the U.S.
government’s policy toward that country?

A. Yes, I am.

Q. And is that familiarity based upon the same sources of your other
knowledge?

A. Yes. Extensive reading and writing in this area, government docu-
ments, articles. Almost anything I can read on the subject that is out
there in print, I do attempt to read, yes.

Q. And what have you found in your research is the United States
doing in Nicaragua?

MR. SEMMELMAN: Objection.

THE COURT: Overruled. Go ahead.

THE WITNESS: Well, as the President of the United States of Amer-
ica said the other night, his objective in Nicaragua is to make the
government down there say uncle. Clearly, that is prohibited by the
terms of the OAS Charter. The Charter would permit the following: In
the event that there was evidence, for example, that there were attacks
from Nicaragua through Honduras against El Salvador, certainly the
United States government would have a right to stop those attacks. And
at the start of the Reagan administration, they said that that was the pol-
icy; that the sole policy was to stop Nicaragua from attacking El Salvador
through Honduras. But as time went on, it became clear that that was
not the policy or that the policy had changed depending on your perspec-
tive; and that now the policy was, as the President said the other night,
basically to change the structure of the government in Nicaragua or to
overthrow it. Or as he put it, to make them say uncle.

That objective, again, is clearly prohibited by this article of the OAS
Charter that I had mentioned to you. Although the United States govern-
ment has a right to stop any attacks by Nicaragua against its neighbors, it
has no right to go down there and change the form of government. That’s
for the Nicaraguan people to determine for themselves under the terms
of the OAS Charter and the United Nations Charter.

Q. Who, Professor Boyle, are the contras?

A. The contras—that is a Spanish name for the coun-
terrevolutionaries—is a military force, now consisting of—estimates run
from ten to fifteen thousand men on the border between Nicaragua and
Honduras, which is to the north. And on the south, five thousand men
between Nicaragua and Costa Rica. This force was established by the
United States government—particularly the Central Intelligence
Agency—and as it appears now, preliminarily for the purpose of over-
throwing the government in Nicaragua. And, again, as I said, that is
prohibited under the terms of the OAS Charter.

Q. What kinds of specific activities are the contras engaged in?

MR. SEMMELMAN: Judge, objection.

THE COURT: Foundation?

In Defense of Civil Disobedience 129

Q. (BY MS. HOFT) Are you familiar with the specific activities of the
contra force in Nicaragua?

THE WITNESS: Yes. I have read extensively on this. In addition, I
have attended several international conferences where documentary evi-
dence has been produced from individuals in Nicaragua who have been
subjected to attacks by the contra forces.

Q. What specific activities are the contras engaged in?

MR. SEMMELMAN: Objection.

THE COURT: Overruled.

THE WITNESS: It appears that the contras are doing two types of
things. One, they are attacking specific military objectives. Number two,
however, they are engaging in a policy designed to terrorize the populace
living in these regions in both the north of Nicaragua and in the south in
order to get them not to cooperate with the government. This includes
robberies, rapes, mutilations, torture, the killing of non-combatants. As I
said, under the laws of war, it is perfectly acceptable to kill soldiers, but
not civilians.

From the best that I can see, what we see here is that the contras are
engaging in a pattern, what we lawyers call a gross and consistent pattern
of violations of fundamental human rights; and particularly, the Geneva
Conventions of 1949. ,

Q. Under international law, how are the atrocities committed by the
contras attributable to the United States?

A. This is under the Geneva Conventions of 1949 that I had men-
tioned and also the Yamashita case. Under the Geneva Conventions of
1949, again the United States government was very supportive of this.
They were designed in order to make clear that the atrocities perpetrated
by Hitler during the Second World War should not be repeated. Or if they
are repeated, that it would be made very clear that these are war crimes
under international law. So we had the Geneva Conventions.

The appropriate one of the four conventions is the Fourth Convention
that protects civilians. The other three deal with prisoners of war that
aren’t really relevant in this context.

This convention protects ordinary human beings, not soldiers; and
Article 29 of the Fourth Convention makes it quite clear that if a govern-
ment in an international armed conflict sets up a band or a group—a
mercenary group of soldiers, and that group operates as its agent—that’s
the key word that is used in Article 29, as its agent—then the govern-
ment that set this group up is fully responsible for any violations of the
Geneva Conventions committed by the group. And it is clear from every-
thing I have read, and indeed even our own government officials have
admitted this, that the contras have engaged in violations of the Geneva
Conventions.

Article 147 of the Geneva Convention describes what’s called a grave
breach. These are very serious breaches. Any violation is a war crime.

2

130 BOYLE

But these are the most serious of all. And, again, murder, mutilation, tor-
ture, rape, things of that nature are grave breaches of the Geneva Con-
vention. And Article 146 of the Convention says that any individual who
commits grave breaches must be prosecuted by a government that gets a
hold of him, no matter where they are located, no matter what govern-
ment it is, or no matter what the nationality of the person who is alleged
to have committed the war crime. .

Q. So how does this article fit into the responsibility of the U.S. mili-
tary personnel, including Navy personnel, in that regard, under that
article?

A. Well, if you read that article in light of the Yamashita case, which I
mentioned to you before, all U.S. civilian government officials or mili-
tary officers who knew or should have known that the contras are com-
mitting war crimes in Nicaragua, and they have failed to take steps to
stop the war crimes or to punish those who have committed those war
crimes, are guilty of those crimes. They are responsible for those crimes.

Again, under the Geneva Conventions and under this case decided by
our own United States Supreme Court, and indeed even in accordance
with the field manuals that I have mentioned to you before, these princi-
ples are set out quite clearly in the terms of the field manuals.

Q. Are you familiar with the United States government’s relationship
to El Salvador?

A. Lam.

Q. Is that familiarity based on these sources that are generally relied
upon by other experts in your field?

A. Yes, it is.

Q. And what is the United States government’s relationship to the
government of El Salvador?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled.

THE WITNESS: Well, not to describe it in general, but under inter-
national law, we lawyers would characterize what is going on in El
Salvador as a civil war. Again, you can determine that for yourselves just
by reading the newspapers. And, again, under international law, cus-
tomary international law, under the terms of the OAS Charter, under the
terms of the United Nations Charter, that is a matter to be decided by
those people themselves. This is an internal affair. It is not one for out-
side intervention like the United States government.

The reason for this principle in international relations, why you are
not supposed to intervene in civil wars, is that the United States was the
one who promoted that principle. During our own Civil War, we argued
that the English had no right to choose up sides between the North and
the South, and we so informed them. When the war was over, we almost
went to war with England unless they agreed to pay damages for support
that they had given to Confederate raiders. And, eventually, the principle

In Defense of Civil Disobedience 131

was established in the famous path-breaking Treaty of Washington that
states will remain out of civil wars in other countries. And it was that
principle that the United States government got the entire international
community to agree upon and was eventually enshrined in those other
treaties and documents I have told you about.

It is clear to me that we have chosen sides in this civil war in favor of
the military establishment that currently governs the state of El Salvador;
and in my opinion, that is prohibited by the terms of the OAS Charter,
United Nations Charter, and customary international law.

Q. Are you familiar with the relationship of the United States govern-
ment to Puerto Rico?

A. Iam.

Q. And what is that relationship?

A. Well, to put it frankly, the United States government stole Puerto
Rico from Spain in 1898. And, again, the official U.S. government docu-
ments establish this. There was—at that time, Spain was the colonial
power in Puerto Rico and also in Cuba. There was a revolution in Cuba
at that time, and the Spanish conducted a very harsh policy directed
against the Cuban people, including the establishment of concentration
camps, torture, and a wide variety of other practices.

There was imperialist sentiment in this country that we should just
go in and take over Cuba, Puerto Rico, and the other islands in the
Caribbean from the Spanish. Nevertheless, we sent an ultimatum to the
Spanish Queen that she either improve her policy in Cuba or we would
declare war. The Spanish Queen sent a message back saying that she
would improve the policy towards Cuba and particularly cut out the
human rights violations; and yet two days later, Congress declared war
anyway even though Spain had capitulated to the ultimatum. And we
then invaded Cuba, Puerto Rico. We also took Guam and the Philip-
pines. We eventually gave independence to Cuba. Cuba attained inde-
pendence in 1906. The Philippines obtained independence in 1947. But
we still hold on to Guam, and we have what is known as a com-
monwealth association with Puerto Rico. Puerto Rico has not been given
independence.

Q. In your opinion, do the United States government’s policies in
Central America and the Caribbean constitute ongoing criminal activity?

A. Clearly, we are violating the Geneva Conventions of 1949, and
committing grave breaches of the Geneva Convention. Perhaps the most
recent glaring example in my mind of that was, as you probably read,
this so-called manual that was produced by the Central Intelligence
Agency that called upon members of the contra group to commit murder
and assassination of innocent civilians in Nicaragua. That type of
activity is specifically prohibited not only by the Geneva Conventions,

132 BOYLE

but even by the United States Army’s own field manual that says assas-
sination is absolutely prohibited under all circumstances. Yet, our CIA
was producing a manual calling for assassination of individuals.

Q. In your opinion, what is the reasonableness under international
law of the actions of these Defendants in taking responsibility for
changing U.S. policies?

MR. SEMMELMAN: Objection.

THE COURT: Objection sustained.

MS. HOFT: Do you have an opinion as to the reasonableness of U.S.
citizens who attempt to change policies that you described as illegal?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Objection sustained.

MS. HOFT: You have laid out to us the responsibilities of individual
citizens under international law. What is your opinion as to how individ-
ual citizens should reasonably act?

MR. SEMMELMAN: Objection.

THE COURT: Sustained.

MS. HOFT: Under international law, what are the responsibilities of
individual citizens towards the U.S. government’s policies in Central
America?

THE WITNESS: Well, as I mentioned with respect to nuclear weap-
ons, the principle is just about the same. If you read the judgment of the
Nuremberg Tribunal, it does appear that there is an obligation of individ-
uals to the extent they can to prevent these heinous violations of
international law; particularly, war crimes, crimes against peace, crimes
against humanity. Likewise, as I argued under Article 38 of the Interna-
tional Court of Justice Statute, to which we are a party, these general
principles of law recognized by all civilized states are a source of interna-
tional law. And certainly one of these general principles of law recog-
nized by all civilized states is a duty to prevent the ongoing commission
of crime.

MS. HOFT: No further question.

THE COURT: Thank you. Cross examination.

MR. SEMMELMAN: Thank you, Judge.

CROSS EXAMINATION

Q. (BY MR. SEMMELMAN) Professor Boyle, you were discussing
with defense counsel some violations of international law by the United
States. Is international law violated often by other countries also?

MS. HOFT: Objection.

THE COURT: Overruled.

THE WITNESS: It depends on how you look at it. The United States
government historically has not violated international law all that much
no matter what other states have done. Now, we see a shift in the posi-
tion of the United States government saying that, well, since some other
states might violate international law, we’re going to do it too.

In Defense of Civil Disobedience 133

MR. SEMMELMAN: Professor, that’s not quite my question. My
question is: Do other states, other countries, violate international law?

THE WITNESS: Yes, other countries do.

Q. Does this happen, through your research, do you know if this hap-
pens often?

A. Well, you are asking a very general question. If you could ask me
specific states, I could be more specific about it. It depends. In my opin-
ion, if you look at the amount of activity that goes on in the world today,
it’s fairly remarkable that we do have substantial compliance with many
rules of international law; in particular, the United Nations Charter.
What creates problems are those instances of glaring examples of egre-
gious violations of those. Like the Soviets have done in Afghanistan. Like
the United States government did in Grenada. Or like the U.S. govern-
ment is currently doing in Nicaragua. So it’s the exceptions that really
stand out.

Q. Could you say through your research that the United States policy
is generally in compliance with international law?

A. Well, under the Reagan administration, in my research, I can say
that in the particular areas I am familiar with, nuclear weapons policy,
Central America, and also the Middle East, which is not at issue here,
my answer to that question would have to be, no. It is not in compliance
with the basic rules of international law. I regret to have to say no
because I don’t believe that historically that has been the case of the
United States government and should not be the case.

Q. In the past, have there been sanctions on countries for violation of
international law?

A. Yes, there have.

MS. BYRNE: Objection.

THE COURT: Overruled. Go ahead.

THE WITNESS: Yes, there have, such as the Nuremberg Tribunals,
which I have discussed here, that the United States government did par-
ticipate in and that led to the executions of several Nazi war criminals.
And, likewise, in the Far East, there were the executions, including Gen-
eral Yamashita, of several Japanese war criminals.

MR. SEMMELMAN: Thank you, Professor.
MS. HOFT: Just a few questions.

REDIRECT EXAMINATION

Q. (BY MS. HOFT) What is the effect, Professor Boyle, of the United

States’ responsibilities under international law of the violations by other
countries of international law?

MR. SEMMELMAN: Objection, Judge.

THE COURT: Overruled. I think he may answer.

THE WITNESS: Well, this is a point I had made in—we had dis-
cussed before. The Reagan administration takes the position that, well,
since some other governments might violate international law, thereby

ew 6
=

134 BOYLE

we have a right to violate international law. But it doesn’t work that way.
You do have a right to defend yourself. You do have a right to take cer-
lain steps to rectify that violation. But just because someone violates the
law doesn’t give you a right to violate it either. Just because there’s mur-
ders, muggings, and rapes down the street, say here in Waukegan, doesn’t
give you a right to go out and do it either.

It’s the same way in the international system. There are mechanisms
and procedures set up to deal with lawbreakers. For example, in Central
America. If, as the Reagan administration believes, the Nicaraguan gov-
ernment is actually providing weapons and equipment and supplies to
rebels—

Q. Professor Boyle, has the U.S. in fact been sanctioned for its activi-
ties in Nicaragua?

A. Already, the International Court of Justice has issued an opinion
in December of the year before last, what is known as an Interim Order
of Protection—it’s called the World Court—ordering the United States
government to terminate all forms of military action, paramilitary action,
or threats or use of force against the government in Nicaragua; and the
United States has refused to comply with that Order issued by the Inter-
national Court of Justice.

Q. Who set up the International Court of Justice?

A. Once again, the United States of America set up the International
Court of Justice. This idea went back to President Theodore Roosevelt’s
Secretary of State, Elihu Root, who was a great international lawyer; and
he sent the American delegation to the Second Hague Peace Conference
in 1907 with the idea of establishing an International Court of Justice
that would be identical to our Supreme Court of the United States, but
would hear disputes between states. And it was that program that even-
tually came into effect in 1921. It was interrupted by the First World
War, and then that Court was continued after the Second World War. So
the World Court is literally the United States of America’s great gift to
mankind, and indeed we then went out and tried to convince everyone
else in the world to join the World Court.

And yet here today, tragically, not only has the Reagan administra-
tion refused to obey the decision of the World Court, but now just
recently, as you probably read in the newspapers, they have walked out
of the World Court and have stated that they will not even appear to
argue their case and will not pay any further attention to what this Court
tells the United States of America to do.

MS. HOFT: Nothing further.

THE COURT: Recross?

MR. SEMMELMAN: No recross.

THE COURT: Thank you. You may step down. Call your next wit-
ness, please.

(Witness excused.)

-“

~ACDIS

BU 1L.1.E Toe

Volume V/ Number 6

Fa uie BOyle

Star Wars vs. International Law:
The Force Will Be Against Us

When President Reagan first announced his
so-called Strategic Defense Initiative (SDI) on
March 23, 1983, that act represented nothing less
than a formal statement by the U.S. government of
its intention to pursue a policy that will eventually
result in the commission of numerous material
breaches of the 1972 U.S.-U.S.S.R. Anti-Ballistic
Missile System (ABM) Treaty. In other words, the
SDI program actually constitutes an anticipatory
breach of the ABM Treaty itself. The evidence
seems to indicate that the Soviet Union has
interpreted the SDI in this fashion. Undoubtedly,
therefore, the Soviets will respond in kind, and the
monumental ABM Treaty will gradually fall into
desuetude even if not specifically denounced or
abrogated ty either superpower.

As originally proclaimed, this Star Wars
program was to involve the research,
development, and testing of a variety of advanced
space-based ABM technologies. However, two
former high-level U.S. diplomats involved in the
ABM Treaty negotiations (Le. Gerard Smith, Head
ofthe SALT I delegation, and John Rhinelander, its
Legal Adviser) pointed out that only “research” on
space-based ABM systems or components was
permitted by article 5 of the ABM Treaty, whereas
their development, testing, and deployment were
specifically prohibited. Hence, the Reagan
administration quickly changedits public rhetoric
to claim that the SDI program will currently
involve only research on, and not development and
testing of, space-based ABM technologies.
Nevertheless, the record clearly indicates that the
Star Wars program involves all three elements and
therefore would specifically violate this provision
of the ABM Treaty, among others.

Such deleterious events place into proper
perspective what.is really happening in the
current round of negotiations over strategic and
theater nuclear forces and space weapons with the
Soviet Union at Geneva. The Reagan
administration has instructed the U.S. delegation
only to discuss, not to negotiate, the Star Wars
program with the Soviets, and to obtain their
acquiescence in the SDI if possible. Essentially this

A newsletter issued
by the Program in Arms Control,
Disarmament and International Security
University or [Linois at Urbana

559 Davenport Hall
607 South Mathews
Urbana, Illincis 61801

(R17)5353-7086

Executive Committee
Franc bHouyle

Claudio Cioffl-Re. ula
Stephen Cohen

Retert Crawrord

David (oodman

Roger Manet

Fred Lamb

Jéremian Sullivan

Director: Edward Kolodzie}

means that the United States delegation is |
attempting to procure Soviet agreement to either
the formal or informal abrogation of the ABM
Treaty.

If that should occur, however, then negotiated
restrictions on strategic and theater nuclear
weapons systems by the two superpowers will
prove to be impossible to obtain at Geneva Ifthe
ABM Treaty is formally or informally abrogated.
then the still observed 1972 SALT I Interim Accord
that freezes the number of ICBM and SLBM

launchers will become a nullity because of the
mutual interdependence of these two seminal
agreements. Likewise, since the unratified but still
observed 1979 SALT II Treaty is built upon the 1974
Viadivostok Agreement concluded between then
Presidents Ford and Brezhnev, which in turn
incorporated important elements of the SALT I
Interim Accord, SALT II will also fall by the
wayside.

Thus the SDI program will involve the formal
or informal termination of the ABM Treaty, the
SALT I Interim Accord, and the SALT I Treaty, in
addition to the 1967 Outer Space Treaty which
prohibits the deployment of some of the SDI’s
envisioned weapons of mass destruction in outer
space. Furthermore, testing some of the SDI’s
proposed technologies would violate the
pathbreaking 1963 Limited Test Ban Treaty, which
specitically prohibits any type of nuclear
explosion in outer space. Obviously the SDI is nota
blueprint for the elimination of nuclear weapons.
Ratner, it will serve as a catalyst for an
unrestricted buildup in both offensive and
defensive nuclear weapons systems by the two
superpowers and their allies.

Indeed, with the explicit approval and active
support of the Reagan administration, the
Pentagon has proceeded apace with the design,
testing, and deployment of three separate,
independent, and potentially offensive first-strike
counterforce strategic nuclear weapons systems:
the Air Force’s MX, the Navy’s Trident 2, and the
Army’s Pershing 2. To this formidable arsenal
should also be added the new MK12A warhead for
the MIRVed (3 RVs) Minuteman 3 ICBM system
that can also exercise a substantial countersulo
Capability. That is an astounding and truly
disturbing situation.

Y a

This author is confident the Soviet leadership
could not even begin to comprehend why the
United States government, professing a genuine
commitment to nuclear arms control and
reductions, would want to field four offensive
first-strike counterforce strategic nuclear
weapons systems at the same time. Based upon all
the evidence so far available, the most likely and
logical conclusion for the Politburo to have drawn
is that the Reagan administration has exploited
the American public’s paranoid fear over the

so-called “window of vulnerability” in order to
generate the requisite high degree of popular
support for the expenditure of funds exorbitant
enough to deploy such new nuclear weapons
systems that would for the first time provide the
U.S. President with the theoretical capability to
wage a “successful” offensive limited nuclear war
against Soviet ICBM silos. From the Soviet
perspective, therefore, an essential precondition
for the Reagan administration’s pursuit ofa
first-strike strategic nuclear weapons capability
becomes the construction of seemingly effective
anti-ballistic missile systems in order to defeat any
anticipated retaliatory attack by the residue
ofSoviet nuclear forces. .

For these reasons, the Reagan administration’s
proposals to defend a multibillion dollar
land-based MX system with a trillion dollar
land-based and space-based anti-ballistic missile
system compound one folly with another to create
strategic and economic insanity. It must be made
emphatically clear to the Soviet Union that the
United States will not terminate the life ofthe ABM
Treaty when it comes up for review in 1987, or
beyond. That objective would require the formal
termination of the Star Wars program, though
genuinely basic research could still be conducted
as a hedge against some technological
development that might encourage either side to
“break out” of the ABM Treaty on six-months
notice as permitted by its terms. But unless the
Reagan administration disavows the Star Wars
program immediately, the accelerating force of the
nuclear arms race between the two superpowers
and their allies will completely overwhelm what
limited capability mankind still possesses to stop
and then reverse its awesome momentum.

-Francis A Boyle-

Alterna ves

i Gi ai of Develop’

ee ee

Scay MW Vita

Citizen Initiatives Under International Law:
The Criminality of Nuclear Weapons
(Before The American Society of International Law Convention
Washington, D.C. April 23, 1988)

Francis A. Boyle-
University of Illonois
at Urbana-Champaign, U.S.A

The human race stands on the verge of self-extinction as a species, and with it
will die most if not all forms of intelligent life on the planet earth. In the hope of
preventing a nuclear Armageddon, the lawyers of the world must come together
to proclaim certain fundamental principles concerning the requirements of
international law with respect to nuclear weapons. It is our hope that the
following analysis will serve to define in legal terms the stark dilemma of
nuclear extinction that confronts the human race today. We must also seek to
establish an agenda for our fellow lawyers around the world to pursue by
applying their unique training, skills, and expertise in a productive and
meaningful way toward the progressive yet complete elimination of nuclear
weapons from the face of the earth. Realistically speaking, we do not expect this
to happen in the immediate future. Nevertheless, as lawyers we owe a duty to our
fellow men and women around the world to struggle toward this goal with all the
powers of our profession.

Hiroshima and Nagasaki

Any attempt to dispel the ideology of nuclearism and its attendant myth
propounding the legality of nuclear weapons must directly come to grips with the
fact that the nuclear age was conceived in the original sins of Hiroshima and
Nagasaki on August 6 and 9, 1945. The atomic bombings of Hiroshima and
Nagasaki were clearly and egregiously violative of basic principles of
international criminal law that were fully subscribed to by the United States
government at that time. In particular, the atomic bombings of Hiroshima and
Nagasaki constituted crimes against humanity and war crimes as defined by the
Nuremberg Charter of August 8, 1945, and violated several basic provisions of
the Regulations annexed to Hague Convention No. IV Respecting the Laws and
Customs of War on Land (1907), the rules of customary international law set
forth in the Draft Hague Rules of Air Warfare (1923), and the United States War
Department Field Manual 27-10, Rules of Land Warfare (1940). According to
this Field Manual and the principles of the Nuremberg Charter, all civilian
government officials and military officers who ordered or knowingly participated
in the atomic bombings of Hiroshima and Nagasaki could have been (and still
can be) lawfully punished as war criminals.

37

Hence, the use of nuclear weapons in combat was and still is absolutely
prohibited under all circumstances by both conventional and customary
international law. Under the Nuremberg Principles, soldiers would be obliged to
disobey egregiously illegal orders with respect to launching and waging a nuclear
war. Furthermore, all civilian government officials and military officers who
might nevertheless launch or wage a nuclear war would be persorially responsible
for the commission of international crimes. All such individuals could be quite
legitimately and most severely punished as war criminals, up to and including the
imposition of the death penalty, without limitation of time and without any
protection against double jeopardy.

The Criminality of Nuclear Weapons

Today, article 2(4) of the United Nations Charter of 1945 prohibits both the
threat and the use of force except in cases of legitimate self-defense as
recognized by article 51 thereof. But although the requirement of legitimate self-
defense is a necessary precondition for the legality of any threat or use of force, it
is certainly not sufficient. For the legality of any threat or use of force must also
take into account the customary and conventional international laws of
humanitarian armed conflict.

Thereunder, the threat to use nuclear weapons (i.e., nuclear
deterrence/terrorism) constitutes ongoing international criminal activity:
Namely, planning, preparation, conspiracy and solicitation to commit crimes
against peace, crimes against humanity, war crimes, as well as grave breaches of
the Four Geneva Conventions of 1949, their Additional Protocol One of 1977,
the Hague Regulations of 1907, and the International Convention on the
Prevention and Punishment of the Crime of Genocide of 1948, inter alia. These
are the so-called inchoate crimes that under the Nuremberg Principles constitute
international crimes in their own right. The conclusion is inexorable, therefore,
that the possession, design, testing, development, manufacture, deployment, and
the threat to use nuclear weapons together with all their essential accouterments
are criminal under well-recognized principles of international law.

The start of any progress toward resolving humankind’s nuclear predicament
must come from the realization that nuclear weapons have never been legitimate
instruments of state policy, but rather have always constituted illegitimate
instrumentalities of internationally lawless and criminal behavior. Thus, those
government decision-makers in the nuclear weapons states with command
responsibility for their nuclear weapons establishments are today subject to
personal criminal responsibility under the Nuremberg Principles for this criminal
practice of nuclear deterrence/terrorism that they have daily inflicted upon all
States and peoples of the international community.

Conversely, every person around the world possesses a basic human right
under international law to be free from this criminal practice of nuclear

38

deterrence/terrorism and its concomitant specter of nuclear extinction. In light of
the fact that nuclear weapons systems are prohibited, illegal and criminal under
all circumstances and for any reason, all human beings possess the basic right
under international law to engage in non-violent civil resistance activities for the
purpose of preventing or terminating the ongoing commission of these
international crimes. Every citizen of the world community has both the right and
the duty to oppose the existence of nuclear weapons systems by whatever non-
violent means are at his or her disposal.

World Opinion Juris
Nuclear weapons establishments as well as the entire system of nuclear

_deterrence/terrorism currently practiced by today’s nuclear weapon states are

criminal -- not simply illegal, not simply immoral, but criminal under well-
recognized principles of international law. This simple idea of the criminality of
nuclear weapons can be utilized to pierce through the ideology of nuclearism to
which many citizens in the nuclear weapons states have succumbed. It is with
this simple idea of the criminality of nuclear weapons that such people can

[proceed to comprehend the inherent illegitimacy and fundamental lawlessness. of
Fre baucies that their governments pursue in their names with in respect to the

further develo Bene re Obment of nuclear. weapons systems.
e idea ~The idea of & the criminality of nuclear weapons is quite simple. And yet

simple ideas are oftentimes the most powerful. For example, at one point in
historical time, people saw no problem with the institution of slavery. But as a
result of the Abolitionist Movement in England and the United States, the entire
international community eventually came around to the point of view that slavery
and the slave trade were immoral; illegal, and criminal and therefore must be
abolished and repressed, which they were and still are today. The same type of
moral and perceptual transformation must occur now with respect to nuclear
weapons in those states that possess them.

In all fairness, however, I should point out that there are tens of thousands of
people in the United States of America who truly believe that nuclear weapons
are Criminal under well-recognized principles of international law that have been
fully subscribed to by the United States government and incorporated into United
States domestic law. That number is increasing every day. Furthermore, there
are hundreds of thousands of people in Europe who belive that nuclear weapons
Systems are criminal, and that number is increasing every day. Finally, there are
tens of millions of people around the world who believe that nuclear weapons
Systems are criminal. It therefore becomes necessary to further propagate the
idea of the criminality of nuclear weapons in order to increase the number of
people who hold that opinion here in the United States as well as in the other
Nuclear weapons states for the purpose of compelling them to consider

39

developing constructive strategies for the abolition of nuclear weapons from the
face of the earth.

The Criminal Conspiracy of Nuclear Deterrence/Terrorism

Humankind must abolish nuclear weapons before nuclear weapons abolish
humankind. Nonethéless, a small numberof governments in the world
community continue to maintain nuclear weapons systems despite the rules of
international criminal law to the contrary. This has led some international
lawyers to argue quite tautologically that since there exist a few nuclear weapons
states in the world community, therefore nuclear weapons must somehow not be
criminal because otherwise these few states would not possess nuclear weapons
systems. In other words, to use lawyers’ parlance, this minority state practice of
nuclear deterrence/terrorism by the great powers somehow negates the existence
of a world opinion juris (i.e., sense of legal obligation) as to the criminality of
nuclear weapons.

There is a very simple response to that specious argument: Since when has a
small gang of criminals -- in this case, the nuclear weapons states -- been able to
determine what is legal or illegal for the rest of the community by means of their
own criminal behavior? By what right do these nuclear weapons states have to
argue that by means of their own criminal behavior they have ipso facto made
criminal acts legitimate? No civilized nation state would permit a small gang of
criminal conspirators to pervert its domestic legal order in this manner.
Moreover, both the Nuremberg Tribunal and the Tokyo Tribunal made it quite
clear that a conspiratorial band of criminal states likewise have no right to opt out
of the international legal order by means of invoking their own criminal behavior
as the least common denominator of international deportment.

To the contrary, the entire human race has been victimized by an international
conspiracy of ongoing criminal activity carried out by the nuclear weapons states
under the doctrine known as “nuclear deterrence," which is a euphemism for
“nuclear _‘ terrorism." This international conspiracy of nuclear
deterrence/terrorism currently practiced by the nuclear weapons states is no
different from any other conspiracy by a criminal gang or band. They are the
outlaws. So it is up to the rest of the intemmational community to repress and
dissolve this international criminal conspiracy as soon as possible and by
whatever non-violent means are available.

Here in the United States, there are several ramifications that follow
ineluctably from the conspiratorial doctrine and practice known as nuclear
deterrence/terrorism. First, criminality is said to be legitimacy. When nuclear
weapons were first developed and used, there was absolutely no consideration
given to the rule of law. Thus, nuclear weapons represent the absolute negation
of a rule of law both at home and abroad. The very existence of nuclear weapons
requires that the rule of law be subverted both at home and abroad.

40

Furthermore, nuclear weapons are anti-democratic. There has never been any
form of meaningful democratic accountability applied to the U.S. nuclear
weapons establishment. The American people as individuals or as a whole have
never had any significant input into the process of developing nuclear weapons
Systems except to the extent that Congress has voted blank checks. The
existence of nuclear weapons systems and-their- requisite degroes of -super—-
secrecy require that our system of government be stealthily anti-democratic.

Finally, the same is true for the Constitution. Constitutional protections
became meaningless when nuclear weapons were integrated into the U.S. foreign
affairs and defense establishment. Indeed, the U.S. Constitution has become a
farce and a facade in the name of national security as a direct result of nuclear
weapons.

The Irrationality of Irrationality

Nuclear deterrence/terrorism as currently practiced by today’s nuclear
weapons states -- this small gang of international criminal conspirators -- cannot
succeed over the long run (which it must) because it is premised upon
assumptions and practices that are immoral, illegal, unconstitutional, criminal,
and irrational in the estimation of the respective public opinions in the various
nuclear weapons states as well as around the world. Unless it is destroyed,
nuclear deterrence/terrorism will ultimately fail and destroy all of human kind
because of its own inherent contradictions.

In particular, the assumptions, policies and practices underlying the U.S.
nuclear weapons establishment are irrational and insane from any meaningful
perspective. Nevertheless, this conspiratorial doctrine of nuclear
deterrence/terrorism has required that what is inherently irrational and insane
somehow be made to appear to be completely rational and sane. America has
quite simply had to invert and pervert its entire system of democratic values,
legal ethos and constitutional practices in order to account for and accommodate
the existence of nuclear weapons.

For example, a good deal of the U.S. nuclear weapons establishment and
deterrence/terrorist practices are premised upon the Harvard political scientist
Thomas Schelling’s theory known as the "rationality of irrationality" that was
expounded in his classic book The Strategy of Conflict (1960). According to this
pernicious doctrine, in theory it could sometimes prove to be a rational strategy
for a government decision-maker to pretend to be completely irrational in his
dealings with other states in order to get his own way. Adolph Hitler was the
paradigmatic example of this phenomenon during the 1930s. The outbreak of the
Second World War in 1939, however, demonstrated the limitations of this theory.

Applying Schelling’s concept to nuclear weapons, an analyst could come to
the conclusion that it might prove to be useful for a government to threaten to
commit the completely irrational and insane act of starting a nuclear war in order

41

to avoid a conventional or nuclear war, or more cynically and realistically, to
achieve certain geopolitical objectives. Furthermore, in order to make this insane
threat credible, the threatening state must then proceed to develop the capability
to launch and wage a nuclear war so that in the eyes of its intended adversary the
completely irrational threat begins to look somewhat more rational. When the
adversary inevitably responds in kind, thesé psychological and bureaucratic
dynamics produce the momentum for generating the self-fulfilling prophecy of
nuclear Armageddon.

I will not bother here to analyze at any length the logical contradictions and
psychological fallacies of U.S. nuclear deterrence/terrorist doctrine since that
task has already been performed quite admirably by my former teacher Robert
Jervis in his definitive work The Illogic of American Nuclear Strategy (1984).
But I simply wish to point out that the entire theory of nuclear
deterrence/terrorism as currently practiced by the world’s nuclear weapons states
represents a working-out of Schelling’s hypothesis propounding the "rationality
of irrationality." All of the world’s nuclear weapons states, and especially the
two nuclear superpowers, have spent the past 45 years trying to make a
completely irrational threat appear to be rational and in the process have had to
pervert and destroy all elements of rationality, legality, constitutionality, morality
and sanity that stood in their way. The task itself is ultimately doomed to failure
unless and until the citizens of the world’s nuclear weapons states can figure out

some practical means to eliminate nuclear weapons before nuclear weapons
eliminate them.

The Illegal Status of Nuclear Arms Control Agreements

These observations then logically bring us to the question of the international
legal status of nuclear arms control agreements. From the perspective developed
above, nuclear arms control agreements are simply part of an international
criminal conspiracy between a small gang of criminal states designed to further
perpetuate the conspiracy. Nuclear arms control agreements attempt to
rationalize, regularize, modernize and perfect the instrumentalities of
international criminal activity. Hence, they are entitled to no validity at all as a
matter of positive international law.

That being said, until humankind can get rid of those instrumentalities of
crime, it is probably preferable to try to control nuclear weapons than not to try
to control them. On the other hand, a good argument can be made that nuclear
arms control negotiations have never constituted more than soporifics designed
by the nuclear weapons states, and especially by the two superpowers, to lull
world public opinion into a false sense of trust in the process while, under their
deceptive guise, such governments have pursued an unrelenting nuclear arms
buildup. Nevertheless, whatever position one ultimately takes on this issue, we
must never forget that all forms of nuclear arms control treaties concluded

42

between the United States and the Soviet Union and among the nuclear weapons
states themselves still deal with instrumentalities of internationally criminal and
lawless behavior.

Thus, nuclear arms control agreements can only constitute a temporary
expedient. Their overall objective must always remain that prescribed ‘by article -
6 of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, which the
United States, the Soviet Union and the United Kingdom are strictly bound to
obey as parties: “Each of the Parties to the Treaty undertakes to pursue
negotiations in good faith on effective measures relating to cessation of the
nuclear arms race at an early date and to nuclear disarmament, and on a treaty on
general and complete disarmament under strict and effective international
control." Universal nuclear disarmament is the only legally defensible, morally
acceptable and logically consistent position that can be taken.

We must call upon all lawyers and lawyers’ organizations around the world,
as well as all men and women of good faith everywhere, to join us in this crusade
for universal nuclear disarmament. Otherwise, the human race will suffer the
same fate as the dinosaurs, and the planet earth will become a radioactive

wasteland. The time for preventive action ts now!

43

NORTHWESTERN
ie NIVERSIT. ¥%
LAW REVIEW

; The Relevance of International Law to the “Paradox” of hl ag ese

as ia oy _ Nuclear Deterrence - : . ae er ee:
ge : es ae re ee
oe Se: Bravets A, Boyle See Pees
Py ae * a ee ‘ kg a an ri pein te Fs
sessed ie Z ~ = s 7 ae - . SG Fat ae
= * \ - > ; oe oe ee © hs
- _—_ a . v = = ie x = ‘fe a Ne
= Sree = \ ss ~ =~ ape ;
g : = \ = a 4 - a So ae >:
si ~ = = a ee : =.
— : / ie i
5 Jj = = The i
~ oe < , ‘ z - — a 5 ¢ \ =
is —s = = » ¥ ras s
Volume 80 ee Summer 1986 Number 6

Copyright 1987 by Northwestern University, School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 80, Na. 6

NORTHWESTERN UNIVERSITY
LAW REVIEW

VOLUME 80 SUMMER 1986 NUMBER 6

THE RELEVANCE OF INTERNATIONAL LAW
TO THE “PARADOX” OF NUCLEAR
DETERRENCE

Francis A. Boyle*

I. INTRODUCTION

Recently, many commentators have written on the legality under
international law of using nuclear weapons.' The main impetus to this
expanding body of literature has been the cavalier nuclear warfighting
rhetoric propounded by the Reagan Administration in the aftermath of
the 1980 election.2, Many of these commentators take the counteractive
position that the use of nuclear weapons is completely prohibited by in-
ternational law, and consequently, serious legal problems exist with the
threat of using nuclear weapons.? These critics have either directly or
indirectly questioned the legitimacy of the United States nuclear weapons
deterrence policy, though few of these authors have examined systemati-

* Professor of Law, University of Mlinois College of Law (Champaign). A.B.. University of
Chicago (1971); J.D. Magna Cum Laude, Harvard Law School (1976); A.M. (1978) and Ph.D.
(1983) in Political Science, Harvard University. Member of Executive Committee, University of
Ulinois Program in Arms Control, Disarmament and International Security; Co-ordinating Council
and Board of Directors, The Lawyers’ Committee on Nuclear Policy.

1 See, eg., Fried, The Preparation for Nuclear War in the Light of International Law, Statement
for the International Nuremberg Tribunal (Feb. 1983); Kennedy, 4 Critique of United States Nuclear
Deterrence Theory, 9 BROOKLYN J. INT'L L. 3 (1983); Meyrowitz, dre Nuclear Weapons Legai?, 39
BULL. ATOMIC Scl., Oct. 1983, at 49; Weston, Nuclear Weapons Versus International Law: A Con-
textual Reassessment, 28 MCGILL LJ. 542 (1983); see also Brownlie, Some Legal Aspects of the Use
of Nuclear Weapons, 14 INT’L & Comp. L.Q. 437 (1965).

2 See Halloren, Weinberger Angered by Reports on War Strategy, N.Y. Times, Aug. 24, 1982, at
B8, col. 3; Halloren, 50 in Congress Protest Policy on Protracted A-War, N.Y. Times, July 22, 1982,
at Aé, col. 3.

3 See R. FALk, L. MEYRowrrz & J. SANDERSON, NUCLEAR WEAPONS AND INTERNATIONAL
Law 52, 78 (1981).

1407

NORTHWESTERN UNIVERSITY LAW REVIEW

cally the so-called “paradox of deterrence” from an international law
perspective.

This Article asserts that if article 2(4) of the United Nations Charter
prohibits both the threat and use of force except in cases of legitimate
self-defense under article 51, and if the actual use of nuclear weapons
would grossly violate the international laws of humanitarian armed con-
flict under most conceivable circumstances, the United States govern-
ment cannot lawfully threaten to use nuclear weapons in accordance
with any theory of nuclear deterrence without violating international
law.* Furthermore, if the Nuremberg Principles absolutely proscribe
crimes against peace, crimes against humanity, and war crimes,’ the
United States government cannot lawfully threaten to commit such hei-
nous offenses in the name of nuclear deterrence. Nevertheless, does the
very articulation of these extremely serious reservations about the legal-
ity of United States nuclear deterrence policy weaken the credibility of
the deterrent itself, thereby rendering the risks of war with the Soviet
Union more probable than with the current erroneous affirmation of the

legitimacy under international law of the United States nuclear
deterrent?’

A. A Critique of the “Positivist” Approach to Analyzing the Legality of
Nuclear Weapons

Most commentators take a “positivist” approach to analyzing the
legality of nuclear weapons: the threat or use of nuclear weapons is said
to be either “legal” or “‘illegal.”” Yet both international life and historical
fact rarely are so clearcut. According to this “positivist” approach, com-
mentators fail to break down the concept of “nuclear weapons” into its
constituent elements: their function, their destructive capabilities, the ac-
tual contingency plans for their targeting and use, and under what partic-
ular circumstances they would be used. If any progress is to be made
concerning the debate over the legality of nuclear deterrence, such dis-
criminations must be made from an international law perspective and
placed squarely within their factual context. A legal positivist clearly
may declare that the use of nuclear weapons is illegal under all circum-
stances. But how useful is such a declaration to a government deci-
sionmaker actually dealing with issues related to the threat of using
nuclear weapons in time of peace, in time of international crisis, or in
time of war?

This “positivist” argument, affirming the complete illegality of using
nuclear weapons under international law, might be helpful to a prosecu-

a ee
* See infra text accompanying notes 29-68.

3 See The London Agreement, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279.
® See infra text accompanying notes 69-97.
7 See infra text accompanying notes 47-49.

1408

80:1407 (1986) Nuclear Deterrence

tor at some future international war crimes trial that is held in the after-
math of a nuclear holocaust for the purpose of trying both United States
and Soviet government officials who launched or waged a nuclear war for
the commission of crimes against peace, crimes against humanity, war
crimes, grave breaches of the Geneva Conventions, and genocide.’ Be-
cause many responsible legal commentators in the United States, the So-
viet Union, and around the world have long argued that the use of
nuclear weapons would be illegal under international law, this potentially
could have a decisive bearing upon these defendants’ culpability.9

In my opinion, at any such future war crimes tribunal the judges
would have to rule unanimously that as of 1987, the use of nuclear weap-
ons was absolutely prohibited under all circumstances by both conven-
tional and customary international law. Therefore, all United States and
Soviet government officials who either launched or waged a nuclear war
would be guilty of violating international law and would not be entitled
to the defenses of superior orders, act of state, duress, necessity, and the
like. Thus, they could be legitimately and severely punished as war
criminals. !°

This prediction provides little solace or guidance for contemporary
foreign affairs and defense policy decisionmakers. Public international
law’s real purpose is not to punish violators on an ex post facto basis, but
rather to prevent, forestall, or deter war—and nuclear war in particular.
Consequently, professional academics must produce an analysis of the
legality of the threat to use nuclear weapons by breaking the analysis
down into its constituent elements in a manner relevant and useful to
real-world government decisionmakers.

For decisionmakers, the major defect of the “positivist” analysis of
the legality of the threat and use of nuclear weapons is its inability to
comprehend and operationalize an undeniable fact of international polit-
ical life: -in real-world situations, government decisionmakers often must
choose the least bad as good.!! A legal positivist approach prevents an

8 This trial could be modelled after the Nuremberg Tribunal.
9 See, e.g., THE LAWYERS’ COMMITTEE ON NUCLEAR POLICY, STATEMENT ON THE ILLEGAL-
ITY OF NUCLEAR WARFARE (1984). Furthermore, the Statute of the International Court of Justice

could recognize this commentary as a source of international law:
“1. The Court whose function is to decide in accordance with international law such dis-
putes as are submitted to it shall apply:
-++.+ @. subject to the provisions of Article 59, judicial decisions and the teachings of the

most highly qualified publicists of the various nations, as subsidiary means for the determina-
tion of rules of law.

LCJ. Stat. art. 38, para. 1.

10 In appropriate circumstances, punishment could include the imposition of even the death
penalty.

11 Such a choice is revealed in the Model Penal Code, which provides as follows:

Justification Generally: Choice of Evils.

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himseif or
to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such con-
duct is greater than that sought to be prevented by the law defining the offense charged; and (b)

1409

NORTHWESTERN UNIVERSITY LAW REVIEW

analyst from discriminating between degrees of legality in evaluating the
propriety of a particular foreign affairs or defense policy decision and,
consequently, from discerning any gradual improvement in or deteriora-
tion of the policy during the course of its development. A legal positivist
perspective also views a foreign affairs or defense policy decision as either
legal or illegal, once and for all. When it comes to the critical issue of
nuclear deterrence, however, international political decisionmaking can-

not realistically hope to be conducted by such a completely dichotomous
and static view of the world.

United States government decisionmakers must learn how to dis-
criminate among the various nuclear weapons policies they consider
from an international law perspective to promote those policies that are
more lawful, when possible, or at least less illegal, when necessary, over
those that are less lawful or more illegal. United States nuclear deci-
sionmakers then could select that policy or combination of policies that
direct United States nuclear deterrence doctrine in a less objectionable
manner than that currently pursued. In contrast to the traditional posi-
tivist approach to international law, such a “functionalist” analysis of the
legality of threatening to use nuclear weapons could prepare the way for
incremental improvements in United States nuclear deterrence doctrine
and practice.'2 A functionalist approach to this subject provides an ana-
lytical mechanism to move out of the “paradox” of nuclear deterrence!3

that now confronts United States foreign affairs and defense decision-
makers.

Often in foreign affairs decisionmaking, a policy based upon sound
considerations of international law represents a good and eventually suc-
cessful strategy. But a policy that violates fundamental principles of in-
ternational law usually is an umsound and unworkable approach:
counterproductive in the short term and ultimately self-defeating over
the long-term course of international relations. United States nuclear de-
terrence policies and practices are reflective of this dilemma. If current
United States nuclear deterrence doctrine is not meshed with the rules of
international law, it ultimately will fail to prevent a nuclear war due to its
internal contradictions and inconsistencies. This Article focuses interna-

neither the Code nor other law defining the offense provides exceptions or defenses dealing with

the specific situation involved; and (c) a legislative purpose to exclude the justification claimed
does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct. the justification afforded
by this Section is unavailable in a prosecution for any offense for which recklessness or negli-
gence, as the case may be, suffices to establish culpability.

MoDeL PENAL CODE § 3.02 (1962); see also N. MACHIAVELLI, THE PRINCE 191 (M. Musa trans.
1964) (a prince must choose the least bad as good).

12 See generally Boyle, International Law in Time of Crisis: From the Entebbe Raid to the Hos-

tages Convention, 75 Nw. U.L. REv. 769 (1980) (description of functionalist analysis of international
law).

13 See supra text accompanying note 3.

1410

80:1407 (1986) Nuclear Deterrence

tional law considerations upon United States nuclear deterrence doctrine
and practice, not in the expectation that nuclear weapons will be abol-
ished in the near future, but in the belief that the pursuit of deterrence
policies that pay attention to international law considerations are more
conducive to the maintenance of international peace and security, and
thus to the prevention of nuclear war.

Some international political scientists alternatively argue that the
world would be more secure if every state possessed a dependable sec-
ond-strike strategic nuclear weapons capability or, in the alternative, that
a “moderate” amount of nuclear proliferation throughout certain regions
in the world should be encouraged by the states that currently possess
nuclear weapons.'* Such naive notions are fatally dangerous to the fu-
ture of mankind. Since these speculative hypotheses have gained few ad-
herents among either the scholarly community or government officials,
this Article does not refute these positions, but rather asserts that the
United States government’s vigorous support for the 1968 Treaty on the
Non-Proliferation of Nuclear Weapons! still remains the only viable al-
ternative to the instigation of a future regional nuclear war with poten-
tially global consequences.

B The United States Government’s Argument for the Legality of
Using Nuclear Weapons

This new spate of literature on the legality vel non of using nuclear
weapons has been useful in opening a debate on a subject that had long
been considered well settled. The United States government’s official po-
sition asserting the permissibility of the use of nuclear weapons for legiti-
mate self-defense historically has been based on the rationale enunciated

in the 1956 Department of the Army Field Manual 27-10: The Law of
Land Warfare:

The use of explosive “atomic weapons,” whether by air, sea, or land forces,
cannot as such be regarded as violative of international law in the absence

of any customary rule of international law or international convention re-
stricting their employment. !®

The Department of the Navy Field Manual NWIP 10-2: The Law of Na-
val Warfare has a similar statement:
There is at present no rule of international law expressly prohibiting States

from the use of nuclear weapons in warfare. In the absence of express pro-
hibition, the use of such weapons against enemy combatants and other mili-

4 But cf. M. KAPLAN, SYSTEM AND PROCESS IN INTERNATIONAL RELATIONS 50 (1957) (unit
veto system of international relations explained).

13 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, T.LA.S.
No. 6839, 729 U.N.T.S. 161.

16 Dep’T OF THE ARMY, FIELD MANUAL 27-10: THE LAW oF LAND WARFARE 18, 1 3 (1956)
(emphasis supplied) [hereinafter ARMY FIELD MANUAL].

1411

NORTHWESTERN UNIVERSITY LAW REVIEW

tary objectives is permitted.'7

According to the United States government’s manuals, therefore, if
the actual use of nuclear weapons is permissible in legitimate self-defense
under article 51 of the United Nations Charter, then a fortiori it is lawful
merely to threaten their use in order to deter an offensive nuclear or con-
ventional attack by the Soviet Union upon either the United States or the
European members of the NATO alliance.

Although there exist substantial differences between these two for-
mulations of the American rationale purporting to justify both the threat
and use of nuciear weapons, both formulations are motivated by the
same underlying conception of international law and its relationship to
state sovereignty: state conduct that is not expressly prohibited by a posi-
tive norm of international law is therefore permitted. This doctrine is
termed the “prohibitive” theory of international law and is diametrically
opposed to the “permissive” theory, which holds that a state is free to do
only that which it is expressly permitted to do by a positive norm of
international law.'®

The two statements by the United States Army and Navy routinely
have been cited by government lawyers, government apologists among
international lawyers in academia or private practice, and other support-
ers of United States nuclear weapons policy to justify whatever was (and
currently is) the fashionable United States nuclear deterrence doctrine as
being essentially consistent with the requirements of international law.
By successfully propagating the general belief that American nuclear de-
terrence policy creates no serious problems under international law, these

17 OFFICE OF THE CHIEF OF NAVAL OPERATIONS, DEPARTMENT OF THE Navy FIELD Man-
UAL NWIP 10-2: THE LAw OF NAVAL WARFARE 1, J 613 (1955) (footnote omitted) {hereinafter
Navy FIELD MANUAL]. Footnote 8 then qualifies this bold assertion in the following way:

The employment, however, of nuclear weapons is subject to the basic principles stated in Sec-
tion 220 and Article 221. Also, see Articles 621 and 622, as well as Note 2 above. Nuclear
weapons may be used by United States forces only if and when directed by the President.

Id. at n.8. After diligently threading through these cross-references and the cross-references in these
cross-references, the reader is left with the distinct impression that footnote 8 is the proverbial excep-
tion that swallows the supposed rule of paragraph 613 permitting the use of nuclear weapons.

18 By definition, adherence to the “prohibitive” theory creates an almost irrebuttable presump-
tion in favor of state action at the expense of international law whenever the latter is silent, and thus
concedes an enormous degree of freedom and discretion to governments conducting international
relations. The “permissive” theory, on the other hand, is purposely intended to restrict severely the
scope of state sovereignty within the presumably well-defined boundaries of international law.
Therefore, for reasons of national self-interest, the states generally have subscribed to the “prohibi-
tive” theory of international law as the correct approach and have repudiated the “permissive” the-
ory a3 a utopian speculation by academic theorists that is grossly at variance with the reality of
international life. In recognition of, or perhaps in deference to, this well-nigh universal sentiment,
the Permanent Court of International Justice (PCI) long ago adopted the “prohibitive” theory and
expressly rejected the “permissive” theory as the proper formulation of the relationship berween
international law and state sovereignty in the famous case of the SS. Lotus. Lectures on Public

International Law by Richard R. Baxter, Harvard Law School, Fall Semester 1974 (hereinafter Bax-
ter Lectures].

1412

80:1407 (1986) Nuclear Deterrence

two statements have exercised a profound influence upon international
lawyers, government officials, academics, and the military establish-
ment.'? Even more insidiously, these two statements have contributed to
the development of the facile yet erroneous opinion among such elite
groups that United States nuclear deterrence policy is a matter concern-
ing the highest national security interest of the United States, and thus
the entire “Free World.” This policy, therefore, supposedly exists as
some metaphysical entity above and beyond the domain of international
law. Thus, international legal considerations are incorrectly deemed “‘ir-

relevant” when it comes to evaluating the propriety of threatening to use
nuclear weapons.?°

Moreover, despite the evolution of United States nuclear deterrence
doctrine since 1955, the purported legal justification for the policy has
remained the same. America’s rationale for the legitimacy of its threat to
use nuclear weapons has remained both untouched by time and uninfiu-
enced by technological advances in nuclear weaponry, strategy, and de-
structiveness. These unilateral policy pronouncements by two branches
of the United States armed services essentially have been spared from
both systematic examination and authoritative criticism from the time of
their original promulgation during the Eisenhower Administration, oper-
ating under its doctrine of “massive retaliation,”2! to the Kennedy Ad-
ministration and its doctrine of “mutual assured destruction” (MAD),2
through the Johnson Administration and its doctrine of “flexible re-
sponse” for NATO,?3 and the Nixon Administration with its “Schles-
inger Doctrine,”?+ until the Carter Administration’s Presidential
Directive 59,25 which was, in turn, essentially endorsed and embellished
upon by Secretary of Defense Caspar Weinberger’s 1982 Five-Year De-

19 See, eg., Almond, Deterrence Processes and Minimum Order, 4 N.Y.L. Scu. J. INTL &
Comp. L. 283, 309 (1983).

20 See Boyie, The Irrelevance of International Law, 10 CAL. W. INT’L L.J. 193 (1980).

21 See, e.g, L. FREEDMAN, THE EVOLUTION OF NUCLEAR STRATEGY 76-91 (1981); P.
PEETERS, MASSIVE RETALIATION: THE POLICY AND ITS CRITICs (1959).

22 As United States Secretary of Defense from 1961 to 1968, Robert McNamara was the primary
architect of “mutual assured destruction,” “flexible response,” and other nuclear strategies devel-
oped during that period. See L. FREEDMAN, supra note 21, at 228-44. See generally D. SNow,
NUCLEAR STRATEGY IN A DYNAMIC WorRLD 57-58 (1981); Martin, The Role of Military Force in
the Nuclear Age, in STRATEGIC THOUGHT IN THE NUCLEAR AGE 47 (L. Martin ed. 1979).

23 Flexible response was formally adopted by NATO in 1967. See L. FREEDMAN, supra note 21,
at 285-86; see also HARVARD NUCLEAR STUDY Group, LIVING WITH NUCLEAR WEAPONS 85, 92
(1983}, STANFORD ARMS CONTROL Group, INTERNATIONAL ARMS CONTROL 205-07 (C. Blacker
& G. Duffy eds. 1984).

24 See L. FREEDMAN, supra note 21, at 377-82.

23 President Carter’s directive naively contemplated the possibility of America’s fighting a “lim-
ited™ nuclear war. For a discussion of Presidential Directive 59, see infra text accompanying notes
91-97; see also R. SCHEER, WITH ENOUGH SHOVELS: REAGAN, BUSH AND NUCLEAR WAR 11-12

(1982); President Carter's remarks at the Annual Convention of the American Legion, 16 Weekly
Comp. Pres. Doc. 1549, 1553 (Aug. 21, 1980).

1413

NORTHWESTERN UNIVERSITY LAW REVIEW

fense Guidance Statement.?* The consistent use of these same statements
for over a quarter century demands a reexamination of the rationale be-
hind the alleged legality of United States nuclear weapons deterrence
policy.

In the Tunis-Morocco Nationality Decrees,27 for example, the Perma-
nent Court of International Justice (PCIJ) held that as the strength of the
international legal order develops and improves over time, the domain of
State sovereignty necessarily diminishes in direct proportion. In recogni-
tion of this dynamic relationship between international law and state sov-
ereignty, the United States Army Field Manual astutely left open the
possibility that developments in the legal, organizational, and political
relationships among the states of the international community after 1956
could very well have created a “customary rule of international law” that
by 1987 would expressly prohibit both the threat and use of nuclear
weapons “‘as such” under all circumstances, including for the alleged
purpose of legitimate self-defense. Since then, there have been a fairly
large number of developments in international law that cast serious
doubt on the continued validity of these two seminal statements of
United States policy uttered in the mid-1950s.28 This Article next consid-
ers whether the basic proposition that the use of nuclear weapons, and a
fortiori the threat of their use, were not “as such” illegal when enunciated
by the United States government in 1955-1956 and whether it was an
accurate statement of international law as it stood at the time.

II. THE SOURCES OF INTERNATIONAL LAW RELEVANT TO THE
PARADOX OF NUCLEAR DETERRENCE

A. The Nuremberg Principles

It is worthwhile to discuss the relevance of the Nuremberg Princi-
ples, a source of customary international law, to the legality of United

— LL eeeesesSsSsSFs

26 For a discussion of the Five-Year Defense Guidance Plan, see R. SCHEER, supra note 25, at 8,
32. The plan boldly proclaimed the objective of America prevailing in a “protracted” nuclear war.
See also Bethe, Gottfried & Currey, The Five Year War Plan , N.Y. Times, June 10, 1982, at A31,
col. 1; N.Y. Times, May 30, 1982, at Al, col. 1.

27 Tunis-Morocco Nationality Decrees (Fr. v. Eng.), 1923 P.C.I.J., Ser. B, No. 4 (judgment of
Feb. 7). The court stated,

The question whether a certain matter is or is not solely within the jurisdiction of a State is an
essentially relative question; it depends upon the development of international relations. Thus,

in the present state of international law, questions of nationality are, in the opinion of the Court,
im principle within the reserved domain.

For the purpose of the present opinion, it is enough to observe that it may well happen
that, in a matter which, like that of nationality, is not, in principle, regulated by international
law, the right of a state to use its discretion is nevertheless restricted by obligations which it may
have undertaken towards other states.

Id. at 24. ;
28 28See R. FAK, L. MEYROWITZ & J. SANDERSON, supra note 3 at 44-62.

1414

80:1407 (1986) Nuclear Deterrence

States nuclear weapons deterrence policy.2° These principles are embod-
ied in the various articles of the 1945 Charter of the International Mili-
tary Tribunal, subsequently established at Nuremberg, Germany, to
prosecute and punish Nazi war criminals.3° Article 6(a) defines the term
“crime against peace” to mean “planning, preparation, initiation or wag-
ing of a war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or conspir-
acy for the accomplishment of any of the foregoing.” Article 6(b) of th

Nuremberg Charter defines the term “war crime” to include |

murder, ill-treatment or deportation to slave labour or for any other pur-
pose of civilian population of or in occupied territory, murder or ill-treat-
ment of prisoners of war or persons on the seas, killing of hostages, plunder

of public or private property, wanton destruction of cities, towns or villages,
or devastation not justified by military necessity.3!

Article 6(c) of the Nuremberg Charter defines the term “crime against
humanity” to include “murder, extermination, enslavement, deportation,
and other inhumane acts committed against any civilian population.’32

Article 6 also provides that leaders, organizers, instigators, and ac-
complices participating in the formulation or execution of a common
plan or conspiracy to commit crimes against peace, crimes against hu-
manity, and war crimes are responsible for all acts performed by any
person in execution of such plan.33 Article 7 of the Nuremberg Charter
denied the applicability of the ‘‘act-of-state” defense to them by making
it clear that the official position of those who have committed such hei-
nous crimes “shall not be considered as freeing them from responsibility
or mitigating punishment.3+ Finally, Article 8 provides that if an indi-
vidual acted pursuant to an order of his government or of a superior, he
would not be free of responsibility, but this may be considered to mitigate
punishment if required by justice.35

These principles of international law, recognized by the Charter of
the Nuremberg Tribunal and the Judgment of the Tribunal*¢ itself, were
affirmed by a unanimous vote of the United Nations General Assembly

Sep ee ee

29 We need not produce another comprehensive catalogue of all the numerous violations of cus-
tomary and conventional international law that might arise from the use of nuclear weapons, as of
either 1955 or today, since that task has been most competently discharged elsewhere. Most contem-
plated uses of nuclear weapons would be illegal for a variety of reasons. See, eg., G.
SCHWARZENBERGER, THE LEGALITY OF NUCLEAR WEAPONS (1958); Rubin, Nuclear Weapons and
International Law, 8 FLETCHER FORUM 45 (1984); Weston, supra note 1.

30 See The London Agreement, supra note 5.
31 fd.
32 Id.
33 {d.
34 Id.
33 [d.

36 22 TRIAL OF THE MaJorR WaR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRI-
BUNAL 411-589 (1948). ‘

1415

NORTHWESTERN UNIVERSITY LAW REVIEW

in Resolution 95(1) on December 11, 1946.37 The N uremberg Principles
have since been universally considered to constitute an authoritative

punishment of those alleged to have committed such heinous offenses, 39
all United States government officials and members of the United States

Law of Land Warfare.© Yet simultaneously and quite inexplicably the
Manual apparently asserts the nonillegality of using nuclear weapons
during wartime in paragraph 35. Furthermore, paragraph 500 expressly
provides that “{clonspiracy, direct incitement, and attempts to commit,

37 G.A. Res. 95(1), U.N. Doc. A/236, at 1144 (1946).

38 See I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF Force By STATES 154-213
(1963); see also R. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 232-35 (1960).

39 See, eg., Attorney General of Israel v. Eichmann, Criminal Case No. 40/61, District Court of
Jerusalem, Judgment of Dec. 11, 1961, reprinted in 56 AM. J. INT'L L. 805, 36 I.L.R. 5 (1962). In
the Eichmann case, the District Court of Jerusalem held that the power of the state of Israel to
punish war criminals is based on the universal character of the crimes:

authority and jurisdiction to try crimes under international law are universal.
56 Am. J. INTL L. at 808, 36 LL.R. at 26.

40 Paragraph 498 of the Field Manual defines “crimes” under international law as follows:

Any person, whether a member of the armed forces or a civilian, who commits an act which
constitutes a crime under international law is responsible therefor and liable to punishment.
Such offenses in connection with war comprise:

a. Crimes against peace

b. Crimes against humanity

c. War crimes. ”

Although this manual recognizes the criminal responsibility of individuals for those of-

Ith
fenses which may compnise any of the foregoing types of crimes, members of the armed forces
will normally be concerned only. with those offenses constituting “war crimes.”

1416

80:1407 (1986) Nuclear Deterrence

as well as complicity in the commission of, crimes against peace, crimes
against humanity, and war crimes are punishable.’’*!

Contemporary United States nuclear deterrence policy certainly
constitutes planning, preparation, and conspiracy to commit crimes
against peace, crimes against humanity, and war crimes. If so, high-level
officials in the Reagan Administration are subject to personal criminal
responsibility and punishment under the Nuremberg Principles for cur-
rently pursuing the development of a “protracted nuclear-war-prevail-
ing” capability. In any event, there exists an incredible inconsistency
between paragraph 35 of the 1956 United States Army Field Manual and
paragraphs 498, 499,42 500, and 501.*? The ramifications of this gross
discrepancy for both the validity and the effectiveness of the contempo-
rary United States nuclear deterrent in theory and practice are startling.

Under the Nuremberg Principles, nuclear destruction of Soviet civil-
ian population centers by the United States would be absolutely prohib-
ited under all circumstances.** This proposition would be true even if
such a countercity attack was undertaken to retaliate against a prior nu-
clear attack on United States population centers by the Soviet Union.**
But if the actual destruction of civilian population centers is prohibited
under all circumstances, how can a theory of strategic nuclear deterrence
that threatens to destroy cities be justified under international law?

The simplistic answer would be that the Nuremberg Principles ap-
ply only to the actual use of nuclear weapons during wartime. Hence, it
is perfectly lawful during peacetime to threaten to do something that
would be completely unlawful to do in wartime, especially if the purpose
of the peacetime threat is to prevent a nuclear or conventional war. This

——

41 Jd. ¥ 500, at 178.

42 Paragraph 499 of the Army Field Manual defines the term “war crime” to mean “the techni-
cal expression for a violation of the law of war by a person or persons, military or civilian. Every
violation of the law of war is a war crime.” Jd. J 499, at 178.

43 Paragraph 501 of the Army Field Manual imposes criminal responsibility on commanders for
the acts of subordinates in the following way:

In some cases, military commanders may be responsible for war crimes committed by
subordinate members of the armed forces or other persons subject to their control. Thus, for
instance, when troops commit massacres and atrocities against the civilian population of occu-
pied territory or against prisoners of war, the responsibility may rest not only with the actual
perpetrators but also with the commander. Such responsibility arises directly when the acts in
question have been committed in pursuance of an order of the commander concerned. The
commander is also responsible if he has actual knowledge, or should have knowledge, through
reports received by him or through other means, that troops or other persons subject to his
control are about to commit or have committed a war crime and he fails to take the necessary
and reasonable steps to insure compliance with the law of war or to punish violators thereof.

Id. 4 501, at 178-79; see also Application of Yamashita, 327 U.S. | (1946).

44 The Nuremberg Charter includes as a war crime “the wanton destruction of cities, towns or
villages, or devastation not justified by military necessity." Nuremberg Charter, supra note 5, at art.
6(b). The Charter also provides that murder and extermination of any civilian population are crimes
against humanity, whether committed before or during a war. /d. at art. 6(c).

45 See, e.g.,R. FALK, L. MEYROWITZ & J. SANDERSON, supra note 3, at 30-32, 45, 50-51, 63-71;
Rubin, supra note 28, at 53-57; Weston, supra note 28, at 585. , ~

1417

NORTHWESTERN UNIVERSITY LAW REVIEW

proposition is the cornerstone of the “paradox” concerning the alleged
legality of strategic nuclear deterrence.

This rationale, however, fails to account for the existence of the in-
choate crimes** incidental to war crimes, crimes against peace, and
crimes against humanity that government officials can commit during
peacetime, thus creating individual criminal responsibility for their com-
mission even before a war begins. The primary purpose for recognizing
the existence of such inchoate crimes with respect to these international
crimes was to deter the commission of the substantive offenses in the first
place.*7 :

The simplistic response to this argument is that the recognition of
such inchoate crimes is counterproductive to maintaining a credible nu-
clear balance between the two superpowers, a balance supposedly neces-
sary to preserve the world from a nuclear Armageddon. According to
this rationale, applying the inchoate crimes concept to nuclear deterrence
would weaken the credibility of the deterrent itself and therefore increase
the risks of war. This argument thus reduces itself to the reprehensibly
Machiavellian proposition that the ends justify the means. Yet the rules
of international law have been formulated precisely to evaluate the pro-
priety of both the ends and the means of the international behavior pur-
sued by both governments and foreign policy decisionmakers. The
Nuremberg Tribunal made that clear to the Nazi war criminals. A Nu-
clear Holocaust Tribunal would also make that clear to any surviving
American and Soviet civilian and military leaders.

If the United States government actually relies upon this instrumen-
talist argument to justify its current nuclear deterrence doctrine, how-
ever, then it would have to concede that should the Soviet Union ever use
nuclear weapons or conventional forces against the United States or
NATO, the United States could not respond with nuclear weapons
against Soviet population centers. According to current strategic theory,
the nuclear deterrent was developed to deter, not to be used. Once deter-
rence has actually failed, the supposed justification for the threat to use
nuclear weapons disappears, and the actual use of nuclear weapons in a

46 That is, planning, preparation, conspiracy, incitement, attempt, and complicity.
47 The following argument by Justice Jackson, Chief Prosecutor for the United States at Nurem-
berg, emphasized the importance of punishing inchoate crimes in order to avoid periodic wars:

The case as presented by the United States will be concerned with the brains and authority
back of all the crimes. ... We want to reach the planners and designers, the inciters and leaders
without whose civil architecture the world would not have been so long scourged with the
violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.

2 TRIAL OF THE Mason WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL
104-05 (1948) [hereinafter WAR CRIMINALS TRIAL].

Justice Jackson also argued that “{i]f aggressive warfare in violation of treaty obligation is a
matter of international cognizance, the preparations for it must also be of concern to the interna-
tional community.” /d. at 127. Similarly, the Nuremberg Tribunal recognized that conspiracy
should be included as an international crime because “(p]lanning and preparation are essential to the
making of war.” 22 id. at 467.

1418

80:1407 (1986) Nuclear Deterrence

1419

NORTHWESTERN UNIVERSITY LAW REVIEW

law that undermines the legality of the 1955-1956 statements by the
United States government concerning the legality of using nuclear weap-
ons during wartime. As mentioned earlier, both the Army and the Navy
Field Manuals’ justifications for using nuclear weapons are premised
upon a metaphysical speculation concerning the relationship between in-
ternational law and state sovereignty. The government’s argument essen-
tially reduces itself to the following proposition: Since the use of “atomic
weapons” during wartime is not specifically prohibited by international
law, states remain presumptively free to use these weapons. This particu-
lar formulation of the “prohibitive” theory of international law and its
relationship to state sovereignty is derived from the famous case of the
S.S. Lotus. In that case the PCIJ provided the classic formulation of the
prohibitive theory of international law:
International law governs relations between independent States. The rules
of law binding upon States therefore emanate from their own free will as
expressed in conventions or by usages generally accepted as expressing prin-
ciples of law and established in order to regulate the relations between these
co-existing independent communities or with a view to the achievement of

common aims. Restrictions upon the independence of States cannot there-
fore be presumed.*°

The court in Lotus decided in favor of the prohibitive theory of in-
ternational law, and therefore in favor of state sovereignty whenever in-
ternational law is not expressly applicable. Nevertheless, the PCIJ had
already indicated in the Tunis-Morocco case of 19235! that as the rules of
international law developed, so too the sovereignty of states would be
proportionately diminished and restricted. Hence, applying the ratio-
nales of both Lotus and Tunis-Morocco to the matter of the legality of
using nuclear weapons, it can be said that even though their use might
not have been explicitly prohibited as of 1955, their use or the threat of
such use could well be prohibited as of 1987 because of numerous devel-
opments in the field of international law and organizations during the
interim period.

Yet the Army/Navy application of the Lotus case to the use of nu-
clear weapons is problematic, for the Lotus rationale was never intended
to apply to the international laws of humanitarian armed conflict opera-
ble during warfare. At the time of the Lotus decision, international law
recognized a clear-cut bifurcation into two mutually exclusive interna-
tional legal orders: the laws of peace and the laws of war.52 This bifurca-
tion was due to the lack of an absolute prohibition on a state’s going to

50 $.S. Lotus (Fr. v. Turk.), 1927 P.C.LJ., Ser. A, No. 10, at 18 (judgment of Sept. 7).

51 Tunis-Morocco Nationality Decrees (Fr. v. Eng.), 1923 P.C.1.J., Ser. B, No. 4 (judgment of
Feb. 7).

52 A 1931 study of international law, for example, concludes that

the relations of international law can, according to their very nature, be divided into relations of
peace and relations of war. A distinction can also be made between the normal relations of

1420

80:1407 (1986) Nuclear Deterrence

war or threatening or using force in international relations.*3

The Covenant of the League of Nations did not prohibit a state from
going to war. It simply set up a procedure that members of the League
had to follow and exhaust before they could go to war with another
member of the League. Under Covenant articles 11(1), 12(1), 13(4), and
15(6), states retained their right to resort to war to protect and advance
their own interests only upon the fulfillment of specified conditions.54
Moreover, the Covenant had no such requirement for relations between
League members and nonmembers, or a fortiori for relations among non-
members. Since the United States never became a member of the
League, Germany did not join until 1926,55 and the Soviet Union until
1934,°° there was a substantial gap in the Covenant’s coverage.

Soon after the Lotus decision, various nations concluded the Kel-
logg-Briand Peace Pact of 1928, which renounced war as an instrument
of national policy.*7 During the negotiation of the Pact, however, some

states and the extraordinary, which arise in conflicts between States, partly between the conflict-
ing parties themselves and partly between these and other states.

A. MOLLER, INTERNATIONAL LAW IN PEACE AND WAR (1931); see also J. RisLEy, THE Law oF
War 40-48 (1897) (discussing rules of peace as distinguished from rules of war).

53 This was remedied in 1945 by the United Nations Charter, which stated that “[a]ll Members
shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the pur-
poses of the United Nations.” U.N. Charter art. 2, para. 4. Article 2(4) is recognized as an uncondi-
tional prohibition on the threat or use of force in international relations that goes beyond any prior
law. See A. Ross, THE UNITED NATIONS: PEACE AND PROGRESS 99-104 (1966).

54 Under the Covenant, member states agreed only to submit disputes to arbitration, judicial
settlement, or inquiry by the Council, see League of Nations Covenant art. 12, para. 1, and they
agreed not to go to war against a party to a dispute that had complied with an arbitration award,
judicial decision, or unanimous report of the Council. Jd. at art. 13, para. 4; art. 15, para. 6. Mem-
bers that were parties to a dispute themselves only agreed not to resort to war until three months
after the award, decision, or report had been made. /d. at art. 12, para. 1. Should a member disre-
gard the covenants under articles 12, 13, or 15, the member was deemed to have committed an act of
war. /d. at art. 16, para. 1. In that event, however, the Council was authorized merely to recom-
mend that effective armed forces should be contributed by other states. Hence, no real enforcement
system was provided in the Covenant. /d. at para. 2.

Indeed, the League recognized the problems with the Covenant’s system for peaceful settle-
ment, and it attempted to resolve the matter by providing a system for compulsory settlement of
disputes in the Geneva Protocol of 1924. Although adopted by the League Assembly, the Protocol
failed to have any significant effect. See R. RUSSEL & J. MUTHER, A History OF THE UNITED
NATIONS CHARTER 284-85 (1958).

53 F. WALTERS, A HIsTORY OF THE UNITED NATIONS 316-27 (1952). Germany was admitted
to the League of Nations on September 8, 1926, by a unanimous vote of the Assembly. Jd. at 326.

36 Id. at 579-85. The USSR’s admission on September 18, 1934, was a direct consequence of
Hitler’s rise to power in Germany, id. at 579, and came after Germany had resigned from the League
in 1933. .

57 Kellogg-Briand Pact, Aug. 27, 1928, art. 1, 46 Stat. 2343, 2345-46, T.S. No. 796, 94 L.N.TS.
57, 63, reprinted in 1928 (1) FOREIGN RELATIONS OF THE UNITED STATES 153, 155: “The High
Contracting Parties solemnly declare in the names of their respective peoples that they condemn
recourse to war for the solution of international controversies, and renounce it as an instrument of
national policy in their relations with one another.”

1421

NORTHWESTERN UNIVERSITY LAW REVIEW

parties reserved the right to resort to war in self-defense.** In deference
to the fundamental principle of international law and politics recognizing
the sovereign equality of states, the legal doctrine known as “reciprocity
of reservations’’*? entitled other parties to the Kellogg-Briand Pact that
had not specifically made such a reservation to invoke it against any state
party that had. The Kellogg-Briand Pact, therefore, did not expressly

preclude the right to go to war in self-defense, let alone to threaten or to
use force.©

Lotus was decided when the laws of peace and the laws of war repre-
sented two separate and independent legal orders. And although the Lo-
tus rationale (£2, that which is not specifically prohibited is
presumptively permitted) applied throughout the operation of the inter-
national laws of peace, it did not apply to the international laws of hu-
manitarian armed conflict during wartime. The Lotus case itself failed to
apply the prohibitive theory of international law to a wartime situation.

Any attempt to apply the Lotus rationale to the laws of war faces an

58 See, e.g., 1928 (1) FOREIGN RELATIONS OF THE UNITED STATES 15, 17-18 (France); id. at 42,
43-44 (Germany); id. at 66, 67 (Great Britain). France unsuccessfully proposed a draft antiwar
treaty specifically providing for the recognition of the right of legitimate self-defense within the
framework of existing treaties. Jd. at 32-34. :

In his desire to keep an express recognition of self-defense out of the text of the treaty, Secretary
of State Kellogg also conceded that self-defense was reserved under the Pact:

There is nothing in the American draft of an antiwar treaty which restricts or impairs in any

way the right of self-defense. That right is inherent in every sovereign state and is impl:..it in

every treaty. Every nation is free at all times and regardless of treaty provisions to defend its
territory from attack or invasion and it alone is competent to decide whether circumstances

require recourse to war in self-defense. If it has a good case, the world will applaud and not
condemn its action.

American Note of June 23, 1928, reprinted in D. MILLER, THE PEACE PACT OF PARIS 213-14
(1928).

This right of self-judgment could be defeated only by the unanimous agreement of League
Council Members other than representatives of parties to the dispute. League of Nations Covenant,
art. 15, para. 7, reprinted in BASIC DOCUMENTS OF THE UNITED NATIONS 295, 300 (L. Sohn ed.
1968).

59 The doctrine of reciprocity of reservations provides that a reservation to a treaty applies recip-
rocally as between the state making the reservation and each of the other parties to the treaty.
Therefore, when a particular state attempts, by a reservation, to relieve itself of treaty obligations,
other parties to the treaty are relieved of those same obligations when dealing with the reserving
state. Bulgaria applied the doctrine of reciprocity of reservations to defeat the World Court’s exer-
cise of compulsory jurisdiction by invoking a United States reservation to such jurisdiction. Aerial
Incident of 27 July 1955 (U.S. v. Bulg.), 1960 I.C.J. 144. For a discussion of the case, see Gross,
Bulgaria Invokes the Connally Amendment, 56 Am. J. INT'L L. 357 (1962).

60 Of course, after World War II the judgment of the Nuremberg Tribunal decisively repudiated
this self-judging element of the self-defense exception to the Kellogg-Briand Pact when it was in-
voked by the Nazi war criminals. The Nuremberg Tribunal rejected the defense that Germany alone
could decide conclusively, in accordance with the reservations made by the parties to the Kellogg-
Briand Pact, whether preventive action was necessary. The Tribunal held that “whether action
taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to
investigation and adjudication if International Law is ever to be enforced.” 22 WAR CRIMINALS
TRIAL, supra note 47, at 450.

1422

80:1407 (1986) Nuclear Deterrence

implacable and fatal obstacle in the Martens Clause,*! which essentially
established a diametrically opposed presumption dealing with the em-
ployment of new weapons in conditions of warfare. Under the Martens
Clause as found, for example, in the Preamble to the Fourth Hague Con-
vention of 1907, Concerning the Laws and Customs of War on Land,* a
State was not free to use any new weapon it wanted to even if it was not
specifically prohibited from so doing by a positive norm of international
law. Rather, the state had the burden of proof to justify the use of the
new weapon under the existing norms of the international laws of hu-
manitarian armed conflict. The Martens Clause read:
Until a more suitable code of laws of war can be drawn up, the high con-
tracting parties deem it expedient to declare that, in cases not covered by
the rules adopted by them, the inhabitants and the belligerents remain
under the protection and governance of the general principles of the law of
nations, derived from the usages established among civilized peoples, from
the laws of humanity, and from the dictates of the public conscience.®3
This clause reveals that it is the permissive theory of international law,
not the prohibitive theory as articulated by Lotus, that applies in deter-
mining the propriety of using new weapons during warfare.

Applying the rationale of the Martens Clause to nuclear weapons
prompts the conclusion that the only possible use of nuclear weapons
that might be “justifiable” is one that would, at a minimum, be consistent
with the conventional and customary international laws of humanitarian

exceedingly rare circumstances conceivably justifying the use of nuclear
weapons might possibly be (for example, a “battlefield” nuclear war in
Europe, to be discussed below), the current United States Strategic nu-
clear deterrence doctrine and practice clearly are neither limited by nor

(1915); N. SINGH, NUCLEAR WEAPONS AND INTERNATIONAL Law 60-62 (1959).

$2 Convention Concerning the Laws and Customs of War on Land (Hague IV), Oct. 18, 1907, 36
Stat. 2277, T.S. No. 539, | Bevans 631, reprinted in 2 AM. J. INT’L L. 90 (1908); see also REPORT
TO THE HAGUE CONFERENCES OF 1899 AND 1907, at 509 (J. Scott ed. 1917).

$3 The Nuremberg Tribunal Subsequently held the regulations annexed to the convention to be
binding upon all states as a matter of customary international law at the time of the outbreak of
World War II. In response to the Nazi argument that Hague Convention No. IV of 1907 did not
apply, the Tribunal held:

The rules of land warfare expressed in the convention undoubtedly represented an advance over
existing international law at the time of their adoption. But the convention expressly stated that
it was an attempt “to revise the general laws and customs of war,” which it thus recognized to

1423

NORTHWESTERN UNIVERSITY LAW REVIEW

to deter aggression. The rationale of the Lotus case is simply irrelevant
to whether the threat or use of nuclear weapons is lawful during peace or
war.

C. The Precedential Significance of the United States Response to
Germany’s Policy of Unrestricted Submarine Warfare During
the First World War

The fundamental importance of the Martens Clause to the conduct
of international armed conflict is not just a scholarly matter. The United
States ultimately intervened and fought in World War I precisely to vin-
dicate the principle of international law maintaining that new weapons of
warfare, and especially instruments of indiscriminate mass destruction,
are subject to the traditional laws of humanitarian armed conflict.
During the period of formal American neutrality from 1914 to 1917, it
generally was believed within the United States that the quality and
quantity of violations of both customary and conventional international
law committed by the Allied Powers were of a nature and purpose mate-
rially different from and far less heinous than those perpetrated by the
Central Powers. Of decisive impact upon American public opinion and
governmental decisionmaking processes was Germany’s wanton and in-
discriminate destruction of innocent human life by its policy of un-
restricted submarine warfare against merchant vessels and passenger
ships. Such behavior expressly violated several provisions of the unrati-
fied Declaration of London®’ that were zenerally considered not only to
State the customary international law of maritime warfare but also to
embody rudimentary norms of humanitarian conduct for any civilized.
nation during wartime.

Tactically, German submarine warfare could only partially compen-
sate for the surface naval supremacy of Great Britain and her allies, who
were successfully imposing an economic stranglehold on all neutral com-
merce that could possibly be destined for Germany and her allies. It was
extremely dangerous for a submarine to forgo the security afforded by
undetected submersion in order to surface and comply with the rules for
interdiction of enemy or neutral merchant vessels suspected of transport-
ing contraband that were applicable to surface warships.°* Indeed, the
standard British practice was to arm merchant vessels with defensive
weapons sufficient to destroy a thin-hulled submarine and to fly neutral
flags on British merchant vessels in order to deceive enemy submarine
commanders. Under these circumstances, application of the laws for

64 This section of the Article is derived in substantial part from Boyle, American Foreign Policy

Toward International Law and Organizations: 1898-1917, 6 Loy. L.A. INT’L & Comp. L.J. 185, 239-
51 (1983).

65 Declaration of London, Feb. 26, 1909, in 4 UNPERFECTED TREATIES 129 (C. Wiktor ed.
1976).

66 Such requirements were set forth in the unratified Declaration of London. /d.

1424

80:1407 (1986) Nuclear Deterrence

maritime warfare to the conduct of hostilities by submarines would es-
sentially have precluded this new device for waging war, and thus would
have provided Great Britain and her allies with a virtually uninterrupted
stream of military and commercial products purchased from merchants

in neutral states, most particularly the United States, for the duration of
the war.

The German government justified its policy of unrestricted subma-
rine warfare as a legitimate measure of reprisal for the grievous and re-
peated British violations of the unratified Declaration of London and
generally recognized rules of international law, both of which Germany
alleged it had been strictly obeying. In addition, Germany complained
that the neutral powers, and especially the United States, had been either
unable or unwilling to exert enough pressure upon Great Britain to se-
cure its compliance with customary and conventional laws of maritime
warfare and neutrality in order to guarantee the continuation of their
nationals’ recognized right to trade with Germany and her allies. The
neutral states’ collective failure to prosecute effectively their rights
against Great Britain or, in the alternative, their refusal to at least pro-
portionately diminish the free flow of weapons, munitions, and supplies
to Britain by their own merchants, substantially harmed Germany both
economically and militarily.

Both the American public and government believed that if this new
instrument of warfare could not be effectively utilized without violating
international law, then Germany must jettison thc submarine instead of
the humanitarian laws of armed conflict. Germany’s subsequent sinking
of merchant ships with large loss of life directly precipitated the United
States decision to intervene in the war against Germany and later Aus-
tria-Hungary, which had endorsed the German practices. Reflecting on
Germany’s actions, President Woodrow Wilson on April 2, 1917, re-
quested that Congress declare war against Germany saying: “The pres-
ent German submarine warfare against commerce is a warfare against
mankind.”®’ America’s decision to abandon its neutrality and enter the
war proved to be the definitive and most effective “sanction” for Ger-

many’s egregious violation of the international laws of humanitarian
armed conflict.

The same rationale that applied to German submarines during
World War I would apply to the threat and use of nuclear weapons.
Although international law did not specifically prohibit submarines “as
such” then and does not specifically prohibit nuclear weapons “as such”
now, these novel instrumentalities of indiscriminate mass destruction
could not or cannot be used in a manner that does not violate interna-
tional law. Based upon the legal and political precedent established by

$7 W. Wilson, Address of the President of the United States Delivered at a Joint Session of the
Two Houses of Congress (Apr. 2, 1917), reprinted in 11 Am. J. INT'L L. 143, 144 (Supp. 1917).

1425

NORTHWESTERN UNIVERSITY LAW REVIEW

the United States government with respect to submarines from 1914 to
1917, the correct response to this dilemma is not, as some international
lawyers recently have suggested,®* to declare that nuclear weapons have
made the laws of war obsolete. Rather, the solution to the “paradox of
deterrence” is the realization that the international laws of humanitarian
armed conflict require nuclear weapons to be rendered obsolete immedi-
ately. How that goal can be achieved will be the subject of this Article’s
conclusion.

III. IMPLICATIONS FOR NUCLEAR DETERRENCE POLICIES

A. Paragraph 35 of the United States Army Field Manual
Reconsidered

The 1955-1956 statements by the United States Navy and Army fail
to deal with any of these issues. Nor do they even allow them to interfere
with their automatic application of the Lotus rationale allegedly to justify
the use of nuclear weapons in wartime. Furthermore, they seem to
blithely ignore both the Martens Clause and the Nuremberg Principles.
Is this defect attributable to faulty analysis on the part of the drafters of
these statements? At least in regard to paragraph 35 of the 1956 United
States Army Field Manual, the answer to that question clearly must be
“no.” The 1956 United States Army Field Manual: The Law of Land
Warfare was drafted anonymously by the late Richard R. Baxter, then
Professor of International Law at the Harvard Law School, and subse-
quently judge of the International Court of Justice.®

If we carefully reread the language of the 1956 Army statement we
can discern that paragraph 35 of the 1956 Army Field Manual never re-
ally supported the standard interpretation that nuclear weapons can per-
missibly be used during wartime. Particular attention must be paid to
the words “as such” in paragraph 35:

The use of explosive “atomic weapons,” whether by air, sea, or land forces,
cannot as such be regarded as violative of international law in the absence
of any customary rule of international law or international convention re-
stricting their employment. 7°

A close reading of this paragraph would indicate that the use of
nuclear weapons cannot be regarded as violative of international law

68 See, eg., Reisman, Nuclear Weapons in International Law, 4 N.Y.L. Scu. J. INT'L & Comp.
L. 339 (1983).

69 Conversation with Waldemar Solf, Adjunct Professor of Law, Washington College of Law,
American University. For a succinct account of Professor Baxter’s career, see 1979-1980 I.C.J.Y.B.
30-31 (1980); 7 WHO Was WHO IN AMERICA 37 (1977-1981). One thing that all his fellow interna-
tional law colleagues would agree upon is that Richard Baxter was a meticulous drafter of interna-
tional legal documents. For several years, Professor Baxter taught the course on International Legal
Drafting at the Harvard Law School.

70 See ARMY FIELD MANUAL, supra note 16 (emphasis added).

1426

80:1407 (1986) Nuclear Deterrence

solely because they are ‘‘atomic” as opposed to “‘conventional” weapons.
In other words, there is no one conventional or customary rule of inter-
national law that specifically prohibits the use of “atomic” weapons by
that name.7!

The interesting part.of this formulation is what Professor Baxter
omitted. Paragraph 35 does not state that the actual use of nuclear
weapons would not be in violation of the international laws of humanita-
rian armed conflict and the laws of war. Also, the 1956 Army statement
did not repeat the grievous error committed by the 1955 Navy statement,
which boldly proclaimed: “In the absence of express prohibition, the use
of such weapons against enemy combatants and other military objectives
is permitted.”72 This 1955 Navy statement did not go so far as to assert
that nuclear weapons lawfully could be used against civilian population
centers, as opposed to legitimate military targets.

By contrast, the 1956 Army statement never said that the use of
nuclear weapons is permitted under any circumstances. It simply stated
that their use is not violative of international law simply because they are
“atomic” as opposed to “conventional” weapons.”

71 In contrast, international conventions specifically prohibit the use of poison or poison gas,
Fourth Hague Convention of 1899 Regulations, art. 23, 32 Stat. 1803, T.S. No. 403, 187 Parry’s T.S.
429 (“In addition to the prohibition provided by special Conventions, it is especially forbidden: (a)
To employ poison or poisoned weapons. . . .”); expanding bullets, Declaration (IV, 3) Concerning
Expanding Bullets, July 29, 1899, reprinted in THE Laws OF ARMED CONFLICT 103-05 (D. Schin-
dier & J. Toman eds. 1981); or poison gas, bacteriological weapons, toxins, Protocol for the Prohibi-
tion of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of
Warfare, opened for signature June 17, 1925, 26 U.S.T. 571, T.LA.S. No. 8061, 94 L.N.T.S. 65,
reprinted in 14 1.L.M. 49 (1975).

The use of nuclear weapons arguably might be prohibited by implication from the terms of the
Geneva Protocol of 1925. See Meyrowitz, Nuclear Weapons Policy: The Ultimate Tyranny, 7 NOVA
LJ. 93, 98 (1982). But the United States did not become a party to this convention until 1975,
almost twenty years after Professor Baxter drafted the United States Army Field Manual.

72 See NAVY FIELD MANUAL, supra note 17 (emphasis added).

73 Furthermore, Professor Baxter never intended to imply that nuclear weapons were exempted
to any extent from the application of the customary and conventional international laws of humani-
tarian armed conflict. To a lawyer who selflessly devoted a substantial part of his professional career
to the improvement of this “somewhat exotic field of law” (to use his own appellation), it would have
been an apocryphal and highly offensive statement.

This author was privileged enough to have taken Professor Baxter’s course on “The Laws of
War” at the Harvard Law School in the Spring Semester of 1975. At that time an entire two-hour
class session was devoted to analyzing the legality of using nuclear weapons under international law.
This author was struck by the precision with which Professor Baxter dissected the meaning of para-
graph 35. He never said that the use of nuclear weapons was permitted under the international laws
of humanitarian armed conflict. Nor did he say that the use of nuclear weapons fell outside their
reach. To the contrary, he seemed to indicate that the traditional laws of war applied to the use of
nuciear weapons, and that “as such” the actual use of nuclear weapons would be in violation of the
customary and conventional international laws of humanitarian armed conflict.

As Professor Baxter phrased the dilemma quite succinctly in a written question posed for class
discussion: “Would it be possible to frame any workable rules on the employment of nuclear weap-
ons falling short of an outright prohibition?” (emphasis added). Professor Baxter never answered

1427

NORTHWESTERN UNIVERSITY LAW REVIEW

Paragraph 35 of the United States Army Field Manual was never
intended to imply that the use of nuclear weapons would not violate the
international laws of humanitarian armed conflict, whether customary or
conventional. Government lawyers and their academic apologists, there-
fore, are completely incorrect in citing paragraph 35 to support the dubi-
ous proposition that the threat or use of nuclear weapons by the United
States government in legitimate self-defense during either peace or war
would be permissible. Indeed, at the very time Professor Baxter was
busy drafting the United States Army Field Manual, the Eisenhower Ad-
ministration was promulgating its strategic nuclear deterrence doctrine
known as “massive retaliation’’ upon Soviet population centers in the
event of a prior nuclear or conventional attack by the Soviet Union upon
the United States or members of the NATO alliance. “Massive retalia-
tion” represented the exact antithesis of Professor Baxter’s cherished no-
tion that there existed such a phenomenon known as the jus in bello.’*

B. The Illegality of United States Nuclear Deterrence Doctrine
Promotes Military Insubordination

That international laws of humanitarian armed conflict actually ex-
ist seems to represent a contradiction in basic terms to many people who
are ignorant of international law.75 The threat or use of nuclear weapons
seems to repudiate the very idea of the laws of war. Academic political
scientists or civilian government officials who operate upon the hard-~
nosed “‘realist” premise that “war is hell” scoff at the notion of interna-
tional laws of humanitarian armed conflict. According to them, there
are no rules when it comes to warfare, especially involving the use of
nuclear weapons. Yet the primary reason behind the historical develop-
ment of United States nuclear deterrence doctrine has been the com-
pletely antimonian prescriptions offered by academic think tanks
operating on the basis of such Machiavellian assumptions.

Nevertheless, most of these civilian officials or theorists would not
be directly involved in the execution (though certainly some would be
involved in the planning and ordering) of any nuclear weapons attack by
the United States government against the Soviet Union. Rather, the
plans would be carried out by the United States military. Officers and
enlisted men of the United States military give their full-fledged and une-

that question in the affirmative because he found it exceedingly difficult to conceive of any such
circumstances where the use of nuclear weapons that was then realistically contemplated by the
United States government could be permissible under the international laws of humanitarian armed
conflict. It seemed clear that Professor Baxter did not believe it possible to formulate such rules
because the use of nuclear weapons simply could not be justified under international law. Cf Baxter,
The Role of Law in Modern War, 47 Am. Soc’y INT'L L. Proc. 90, 91-92, 120 (1953).
74 See Baxter Lectures, supra note 18.

_ 75 For an excellent discussion on a related theme of what is international law, see D’Amato, Js
International Law Really “Law"?, 79 Nw. U.L. REV. 1293 (1984-1985). °

1428

80:1407 (1986) Nuclear Deterrence

quivocal support to the humanitarian laws of armed conflict precisely
because these rules were originally and primarily designed to protect
them.’ Any United States civilian government official or academic theo-
rist who believes to the contrary acts at his own peril. Civilian nuclear
decisionmakers, therefore, must take considerations of international law
into account because their military counterparts have been trained, and
indeed ordered, to do so.

The Geneva Conventions of 1949 require that all United States mili-
tary personnel be indoctrinated in the international laws of humanitarian
armed conflict.77 Part of this indoctrination includes the admonition
that they must not carry out any order that they know to be illegal.”8
Moreover, the Nuremberg Tribunal went even one step further by estab-
lishing personal criminal responsibility for participation by military sub-
ordinates in the commission of crimes against peace, crimes against
humanity, and war crimes so long as there existed a “moral choice” for
them to refuse to obey clearly illegal orders.7? Thus, according to the
Nuremberg Principles as well, all United States military personnel as-

76 See F. Leiber, General Order No. 100, Adjutant-General’s Office, Instructions for the Gov-
ernment of Armies of the United States in the Field, reprinted in THE LAws OF ARMED CONFLICT,

supra note 71, at 3. See generally Davis, Doctor Francis Lieber’s Instructions for the Government of
Armies in the Field, 1 AM. J. INT’L L. 13 (1907).

_ 77 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 U.S.T. 3516, T.LA.S. No. 3365, 75 U.N.T.S. 287:

Article 144. The High Contracting Parties undertake, in time of peace as in time of war, to
disseminate the text of the present Convention as widely as possible in their respective coun-
tries, and, in particular, to include the study thereof in their programmes of military and, if
possible, civil instruction, so that the principles thereof may become known to the entire popu-
lation.

Any civilian, military, police or other authorities, who in time of war assume responsibili-
ties in respect of protected persons, must possess the text of the Convention and be specially
instructed as to its provisions. :

78 Members of the armed forces are bound to obey only lawful orders. See Uniform Code of
Military Justice, art. 90, 10 U.S.C. § 890 (1982) (assaulting or willfully disobeying superior commis-
sioned officer). Paragraph 509 of the ARMY FIELD MANUAL, supra note 16, at 182 (emphasis ad-
ded), provides as follows:

509. Defense of Superior Orders a. The fact that the law of war has been violated pursuant
to an order of a superior authority, whether military or civil, does not deprive the act in ques-
tion of its character of a war crime, nor does it constitute a defense in the trial of an accused
individual, unless he did not know and could not reasonably have been expected to know that the
act ordered was unlawful. In all cases where the order is held not to constitute a defense to an
allegation of war crime, the fact that the individual was acting pursuant to orders may be con-
sidered in mitigation-of punishment. b. In considering the question whether a superior order
constitutes a valid defense, the court shall take into consideration the fact that obedience to
lawful military orders is the duty of every member of the armed forces; that the latter cannot be
expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders
received; that certain rules of warfare may be controversial; or that an act otherwise amounting
to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the
same time it must be borne in mind that members of the armed forces are bound to obey only
lawful orders (e.g., UCM, art. 92).

See also United States v. Calley, 48 C.M.R. 19, 22 U.S.C.M.A. 534 (1973) (denial of defense for My
Lai massacre).

79 It was also submitted on behalf of most of these defendants that in doing what they did they

1429

NORTHWESTERN UNIVERSITY LAW REVIEW

signed to nuclear missions would be obligated to refuse to perform any
such illegal orders for waging strategic nuclear warfare against the Soviet
Union upon pain of suffering personal criminal responsibility.

To be sure, it is not absolutely certain that members of the United
States military establishment might not carry out egregiously illegal or-
ders given to them by civilian officials, such as a nuclear first-strike or
countercity attack. But there does exist a distinct probability that some
soldiers might exercise their moral choice to refuse to do so. The likeli-
hood that some members of the United States military might refuse to
obey egregiously unlawful orders given by civilian officials to wage a nu-
clear war against the Soviet Union provides the most compelling reason

why United States nuclear deterrence theory and practice must be
reexamined.

More concretely, how should United States civilian government offi-

cials deal today with the distinct possibility that the United States mili-

tary officer routinely assigned to accompany the President at all times
with the code for launching United States nuclear weapons—contained

~ in that infamous attaché case handcuffed to his wrist—might someday in

the future refuse to allow the President access to the code because he
believed he was obligated by both international law and United States
domestic law not to become an accomplice to the commission of crimes
against peace, crimes against humanity, and war crimes?

The United States government establishment fully subscribes to a
strategic nuclear deterrence policy that is totally inconsistent with inter-
national law. Deterrence as a theory cannot succeed for the United
States over the long run (which it must) if it is premised upon assump-
tions that are totally unacceptable to the American people, to the civilian
government officials in charge of its design, and especially to the mem-
bers of the United States military forces who would be in charge of its
execution. Any United States nuclear deterrence doctrine must take into
account the legal and moral training, beliefs, and convictions of the
members of the United States military establishment.®°

—— ——. — ———

—__—— —————

were acting under the orders of Hitler, and therefore could not be held responsible for the acts

committed by them in carrying out those orders. The Charter specifically provides in Article 8 that
[t]he fact that the defendant acted pursuant to order of his Government or of a superior shall
not free him from responsibility, but may be considered in mitigation of punishment. The pro-
visions of this article are in conformity with the law of all nations. That a soldier was ordered to
kill or torture in violation of the international law of war has never been recognized as a defense to
such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation
of the punishment. The true test, which is found in varying degrees in the criminal law of most
nations, is not the existence of the order, but whether moral choice was in fact possible.

22 WaR CRIMINALS TRIAL, supra note 47, at 466.

80 For example, there have been reported instances in which U.S. nuclear missile control officers
have refused to fire under a mock nuclear attack. There have been other instances in which U.S.
nuclear missile control officers have asked to be relieved of their positions because they believed that
their assigned missions were completely inconsistent with the laws of war training they had received
when they were indoctrinated into the military. In one instance, an ICBM missile control officer was

1430

80:1407 (1986) Nuclear Deterrence

There probably exists a fairly large number of professional military
officers and enlisted men assigned to nuclear missions who possess enor-
mous doubts over the legal and moral legitimacy of their delegated tasks.
Thus, they are of questionable reliability. Men and women are going to
question any order that might be given to them for the use of nuclear
weapons, especially when it is highly probable that they will perish as a
result of the process. As Professor Alfred Rubin from the Fletcher
School of Law and Diplomacy has aptly put it, a missile control officer
who has been ordered to turn the key will think long and- hard when he
realizes that he himself will be meeting his creator in less than fifteen
minutes.$! He might decide that it is better to do so with a clean con-
science rather than have to bear responsibility for the deaths of millions

of people.

The Nuremberg Tribunal expressly endowed such moral considera-
tions with an international legal significance when it established the ap-
propriate standard of personal criminal responsibility for participation by
subordinates in the commission of crimes against peace, crimes against
humanity, and war crimes. Hence, human morality—whether premised
upon religious, ethical, or humanistic grounds—becomes both legally
and politically relevant to determining the validity, and thus the effec-
tiveness, of nuclear deterrence. Whether or not there is a heaven, it is
certainly true that many, if not a majority, of people in the United States
military services are religious, have faith in God, and believe in an after-
life. If so, then the United States government cannot effectively assign to
them nuclear missions that, in their opinion, might put their souls in
eternal jeopardy. They would be not only entitled, but also indeed obli-
gated, to exercise their moral choice in this matter by refusing to obey
clearly illegal orders given by their military superiors or civilian govern-
ment officials.

IV. THE FUNDAMENTAL ILLEGALITY OF CONTEMPORARY
NUCLEAR DETERRENCE POLICY

A. Launch on Warning

The previous argument is not intended to exonerate the United
States military establishment from any degree of legal and political re-
sponsibility for developing the world’s current nuclear predicament. Nor
is it intended to recommend the abolition of the constitutionally man-
dated system for civilian control over the military establishment through-

trained to engage in first-strike scenarios and subsequently left the military rather than continue to
do so because he believed such training to be illegal and immoral. See, eg., Washington Post
(Parade), Aug. 14, 1983, at 10-11; Day, Captain Coleman's Challenging Job and Why He Decided to
Leave /t, Progressive, Aug. 1981, at 27; N.Y. Times, Nov. 29, 1981, at AS7, col. 1.

81 76 Am. Soc’y INT'L L. Proc. 345 (1982).

1431

NORTHWESTERN UNIVERSITY LAW REVIEW

out the United States government. In the event United States civilian
government officials some day order their military subordinates to wage a
nuclear war against the Soviet Union, substantial numbers of United
States’ military personnel undoubtedly will do their utmost to discharge
their appointed tasks, thus resulting in the catastrophic devastation of
the entire planet. But any notion that a counterforce nuclear war can be
kept “limited” assumes that most United States military personnel as-
signed to nuclear missions can and will do precisely what they are told.
This certainly will not be the case during a future nuclear crisis or war.®?

Moreover, the fundamental illegality of United States nuclear deter-
rence doctrine and practice exercises a most profoundly corrosive effect
on the internal fiber of the United States military establishment—just as
it has done on the nature of the United States constitutional system of
government purportedly operating under the rule of law. The essential
lawlessness of nuclear deterrence not only promotes military insubordi-
nation, but also encourages both legal and illegal actions by concerned
United States citizens to bring their government into compliance with the
requirements of international, domestic, and constitutional law. The lat-
ter issue of antinuclear civil resistance will be discussed in more detail in
my forthcoming book.*3 '

Meanwhile, the inescapability of this former dilemma—whereby the
fundamental illegality of nuclear deterrence inevitably promotes military
insubordination—has led some theorists to conclude that the human ele-
ment must be removed from the United States nuclear command system.
It has been suggested that the United States government must move to a
“launch on warning” nuclear response doctrine instead of the second-
strike scenario it now supposedly adheres to. According to this frighten-
ing concept, once United States satellites have sensed the launch of So-
viet ICBMs, the retaliation by United States ICBMs would be almost
automatically triggered by computer. Yet, the United States government
has witnessed too many instances in which its computers related to the
sensing and ordering of a nuclear attack have malfunctioned.**

Overwhelming considerations of human survival should compel the
United States government to propose an international agreement to the
Soviet Union expressly prohibiting their respective civilian government
officials and military officers from ever adopting a “launch on warning”
policy. Today the Reagan Administration is rapidly deploying offensive,

first-strike counterforce strategic nuclear weapons systems such as the -

MX, Trident 2/Delta 5 warhead, Pershing 2, and Minuteman 3/MK-
12A warhead, systems that make it extraordinarily difficult for the Soviet

82 Cf G. ALLISON, ESSENCE OF DECISION 15-16, 34-35 (1971).

83 F. BoyLe, DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAw (1987).

84 During an 18-month period, NORAD experienced 151 false alarms, four of which were con-
sidered to be serious enough that B-52 crews and ICBM units were placed on increased alert. N.Y.
Times, Oct. 10, 1980, at AIO, col. 1.

1432

80:1407 (1986) Nuclear Deterrence

Union to refrain from adopting a “launch on warning” policy, where-
upon the United States government would feel compelled to respond in
kind. Mutual adoption of “launch on warning”’ policies by both super-
powers would create an enormous, almost inexorable incentive for either
one to strike first in the event another critical geopolitical crisis breaks
out between them.*>

No conceivable justification under international law exists for the
deployment of any one of these offensive, first-strike counterforce strate-
gic nuclear weapons systems.8* The only argument in their favor is the
Reagan Administration’s Machiavellian assertion that it is necessary for
the United States government to develop the capability to “prevail” in a
“protracted nuclear war’—not in the realistic expectation that a
counterforce strategic nuclear war actually can be fought and won, but in
the misguided belief that obtaining the apparent capability to do so will
more effectively deter a nuclear or conventional attack by the Soviet
Union upon the United States or NATO than could either MAD or
“flexible response.” But if that premise is invalid, then the supposed
need for the deployment of this new and unprecedented generation of
United States first-strike counterforce strategic nuclear weapons systems
disappears. These complex issues of nuclear and conventional deterrence
will be addressed in the following sections of this Article.

B. The Illegality of the Reagan Administration’s “Protracted Nuclear-
War-Prevailing’”’ Deterrence Doctrine

Members of the United States foreign affairs and defense establish-
ments recently have been invoking the sentiment behind the international
laws of humanitarian armed conflict in order to manipulate some people
into supporting the proposition that the Reagan Administration’s an-
nounced intention to develop the capability to “prevail” in a “protracted
nuclear war” is somehow more “humane” and therefore “more lawful”
or at least “less illegal” than earlier theories of strategic nuclear deter-
rence.’ This argument maintains that by creating the option of ordering
a “limited” nuclear strike against Soviet ICBM silos and hardened com-
mand centers by means of the prior deployment of new counterforce stra-
tegic nuclear weapons systems such as the MX, Pershing 2, Minuteman
3/MK-12A warhead, and the Trident 2/Delta 5 warhead, in the event of
a Soviet first strike against United States ICBM silos, the President could
at least initially avoid ordering an all-out strategic nuclear attack upon
Soviet population centers and therefore possibly avert a global nuclear

85 Eg, a conflict along the lines of the Berlin Airlift, the Cuban Missile Crisis, or the Yom
Kippur War.

86 For the strategic importance of these systems, see Boyle. Nuclear Weapons and International
Law: The Arms Control Dimension, 4 N.Y.L. Scu. J. INt’L & Comp. L. 257, 267-76 (1983).

87 See, eg., C. BUILDER & M. GRAUBARD, THE INTERNATIONAL LAW OF ARMED CONFLICT:
IMPLICATIONS FOR THE CONCEPT OF ASSURED DESTRUCTION 34-37 (1982).

1433

NORTHWESTERN UNIVERSITY LAW REVIEW

catastrophe. According to them, when analyzed from the perspective of
the humanitarian laws of armed conflict, such counterforce nuclear
weapons become preferable to existing strategic nuclear weapons systems
that do not possess the requisite combination of survivability, reliability,
speed, accuracy, ability to penetrate defenses, and explosive power neces-
sary to be used in a counterforce as opposed to their traditional counter-
city mode. Considerations of international law, therefore, might at first
glance seem to support the Reagan Administration’s shift from MAD to
developing a “protracted nuclear-war-prevailing” capability, because the
latter’s underlying counterforce philosophy seems to ‘comport more
closely with the general prohibition against indiscriminate bombardment
of civilian population centers than does the former’s countercity philoso-
phy. The Reagan Administration apologists argue that it would be far
better from a humanitarian, legal, moral, or ethical perspective to pro-
vide the President with such new weapons now, because they would en-
able him to fight a “limited counterforce” instead of an “all-out
countercity” nuclear war. This entire line of argument assumes that
what starts out as a “limited counterforce” nuclear war would not esca-
late into an “all-out countercity” nuclear war. Most civilian government
officials and military experts believe the contrary: there is no way a
counterforce nuclear war between the United States and the Soviet
Union could be kept “limited.”**

Putting aside this potential for escalation into nuclear Armageddon,
we must directly address whether the Reagas Administration’s “pro-
tracted nuclear-war-prevailing” doctrine can be justified as more lawful
or at least less illegal than MAD or “flexible response.” This argument
seems to constitute the primary legal-moral-ethical justification pro-
pounded by the Reagan Administration for its alleged decision to for-
mally abandon MAD as the bedrock of American strategic nuclear
deterrence theory, as well as to pursue its so-called “strategic defense
initiative” (SDI) of attempting to create a seemingly effective land-based
and spaced-based defense for United States ICBM forces, hardened com-
mand centers, and perhaps some civilian population concentrations
against incoming Soviet nuclear warheads.’? Determining the correct
answer to this question goes not only to the very heart of the Reagan

nents item a AOC A A

88 The general consensus of opinions held by responsible political and military leaders (as Op-
posed to academic professionals or think-tank theorists) on both sides of the “balance of terror” is
that a “limited” nuclear war cannot be fought without running an unacceptable risk of escalation
into strategic nuclear warfare between the two superpowers. See, ¢%., U.S. News & World Rep.,
Apr. 26, 1982, at 17 (George Kennan); N.Y. Times, Nov. 7, 1981, at A6, col. 3 (Soviet Defense
Minister Dmitri Ustinov); N.Y. Times, Oct. 25, 1981, at A3, col. 4 (Michael Foote); N.Y. Times,
Oct. 21, 1981, at AS, col. 1 (Leonid Brezhnev).

89 In a televised speech aimed at defending a 10% increase in military spending in 1984, Presi-
dent Reagan appealed to modern technology to develop a program of defense measures for the future
whereby deterrence would be based not upon the Soviet Union's fear of immediate United States
retaliation to a nuclear attack, but rather upon the capability of the United States to “intercept and

1434

80:1407 (1986) Nuclear Deterrence

Administration’s massive nuclear and conventional weapons buildup, but
also to its correlative lack of any genuine commitment to the negotiation

of realistic nuclear arms control and reduction agreements with the So-
viet Union.”

C. The Theory Versus the Reality of United States Strategic Nuclear
Deterrence

Although the above rationale might be the theoretical justification
of the Reagan Administration’s development of a United States pro-
tracted nuclear-war-prevailing capability, the practice of strategic nu-
clear deterrence is something totally different. Although superficially
justifiable as an abstract proposition, such a justification becomes mean-
ingless if the theory has little material bearing upon the actual practice of
strategic nuclear deterrence. Throughout any analysis of the legality of
the threat to use nuclear weapons, it becomes critical to distinguish be-
tween United States strategic nuclear deterrence doctrine in theory and
in practice, for there exists an enormous difference between the two.

I have divided the evolutionary development of United States nu-
clear weapons deterrence theory into the periods of (1) massive retalia-
tion, (2) mutual assured destruction, (3) flexible response, (4) the
Schlesinger Doctrine, and (5) Presidential Directive 59.9! These were the
theories that the United States government publicly propounded to ex-
plain the planned use of its nuclear weapons systems. Yet these theories
were used essentially either to win election or reelection by certain presi-
dential candidates and/or to justify the acquisition or nonacquisition of
new nuclear weapons systems or conventional military forces, as well as
the incidental expenditure of funds.9? In essence, these theories bore
some relevance to the actual practice of United States nuclear weapons
deterrence, but the theories never determined these practices.

The actual practice of United States strategic nuclear weapons
targeting consists of what is known as the Single Integrated Operational
Plan (SIOP).93 The SIOP contains the actual list of and priority among
military, political, economic, and civilian targets in the Soviet Union that
will be destroyed in the event of a nuclear war. Because its exact con-
tents are highly classified, very little about the SIOP is revealed in the
public record. We do know, however, that the SIOP supposedly has

destroy strategic ballistic missiles before they reached our own soil or that of our allies.” N.Y.
Times, Mar. 24, 1983, at A20, col. 1.

9° See Boyle, supra note 86, at 277; see also S. TALBOT, DEADLY GamBiITs (1984).

9! See supra text accompanying notes 21-26.

92 P. PRINGLE & W. ARKIN, SIOP: THE SECRET U.S. PLAN For NUCLEAR WAR 108-09, 189
(1983). ;
93 See, e.g, P. BRACKEN, THE COMMAND AND CONTROL OF NUCLEAR Forces 75 (1983);

P.PRINGLE & W. ARKIN, supra note 92; Powers, Choosing a Strategy for WW IIT, ATL. MONTHLY,
Nov. 1982, at 82, 92-95.

1435

NORTHWESTERN UNIVERSITY LAW REVIEW

gone through several distinct phases along the lines of the evolution of
the different stages outlined above.”

In fact, the general consensus seems to be that irrespective of any
changes in the publicly declared theory, as these theories were used to
justify the acquisition of new nuclear weapons systems, more targets
were simply added to the list.°> Since the United States now possesses
approximately 10,000 strategic nuclear weapons designated for use on
the Soviet heartland,*® every Soviet city of even a minor size, every eco-
nomic and industrial complex, all military bases and installations, and
every airfield in the Soviet Union probably are listed on the SIOP for
destruction in a prearranged order of priority,°’ with many targets sched-
uled to be destroyed several times over. As the United States govern-
ment acquires more nuclear weapons systems, such as ground-, sea-, and
air-launched cruise missiles, targets that are even more insignificant will
simply be added to the SIOP.

Once the President is given these new weapons systems, probably no
basic alteration in the SIOP will be made to reflect the Reagan Adminis-
tration’s allegedly more humanitarian theory of “counterforce’”’ nuclear
targeting. Rather, the newer weapons systems probably will be assigned
to destroy the higher priority targets, the older systems will be assigned
to destroy lower priority targets, and some even more insignificant
targets will be added to the bottom of the SIOP and targeted by the old-
est systems. So, although the Reagan Administration’s “counterforce”’
doctrine might at first blush appear to be somewhat justifiable in an ab-
stract and theoretical sense, the doctrine will not be implemented in the
practice of strategic nuclear targeting.

D. The Counterproductivity of the Reagan Administration’s SIOP

The highly classified nature of the SIOP creates a serious method-
ological problem for studying the legality of strategic nuclear deterrence:
since we do not have access to it, we can only estimate what it might
contain. Ideally we would be able to examine the records of the Joint
Strategic Target Planning Staff (JSTPS) in order to determine whether
they have added, allocated, and prioritized targets for the SIOP in ac-
cordance with international law considerations.°® Most probably, the
SIOP is totally lawless and completely unjustifiable in accordance with

94 See, eg., P. BRACKEN, supra note 93, at 85, 91.

95 P. PRINGLE & W. ARKIN, supra note 92, at 173-79, 188-89.

96 Id. at 37.

97 Id. at 186-88.

98 See generally Ball, Targeting for Strategic Deterrence, Adelphi Papers No. 185 (1983); Ball,
U.S. Strategic Forces: How Would They Be Used?, 7 INT'L SECURITY 31 (1982-1983); Carter, The
Command and Control of Nuclear War, 1985 Sci. AM. 32; Mariska, The Single Integrated Opera-
tional Plan, Mi. REV., Mar. 1972, at 32; O'Malley, JSTPS:—The Link Between Strategy and Execu-
tion, AiR U. REv., May-June 1977, at 38. ,

1436

80:1407 (1986) Nuclear Deterrence

any standard of international law or political and personal morality.
This lawlessness probably has existed since the time of the Eisenhower
Administration’s doctrine of massive retaliation. It would be particu-
larly blatant if the Reagan Administration successfully deploys those
strategic nuclear weapons systems that are supposedly designed for the
specific purpose of “prevailing” in a “protracted” counterforce nuclear
war.

Indeed, it now seems that the Reagan Administration is spending its
time and effort to select as additional targets for their current version of
the SIOP semi-hardened or superficially hardened bunkers that have
been constructed for the Russian equivalent of United States city coun-
cils for even very small towns in the Soviet Union.*°? The theory behind
such “elite” targeting is that the destruction of the entire Soviet political
leadership will prevent a-reassertion of control over the domestic popula-
tion in a post-nuclear war era.'©° Of course, this targeting rationale fur-
ther assumes the unlikely result that there will exist significant civilian
population concentrations in the Soviet Union after a nuclear
holocaust. !°!

But if, as the Reagan Administration apparently believes, the Soviet
government is on the brink of political and economic collapse,’ it
would make far more sense not to target anywhere near many Soviet
civilian population centers so that in the event of a general war the vari-
ous national ethnic groups could rise up to overthrow their Great Rus-
sian oppressors.!°3 It is ths questionable whether the Reagan
Administration should target near civilian population centers in these re-
gions or in Soviet Central Asia when their respective populaces are mark-
edly hostile to the Great Russian administration of the Soviet empire.

During the Carter Administration, various government officials su-
pervised the construction of a SIOP that incorporated a philosophy of so-
called “counter-ethnic targeting” with respect to the Soviet Union.'* In
other words, major population centers inhabited primarily by the Great

ee ———————————————

99 Cf. Ball, Counterforce Targeting: How New? How Viable?, in THE UsE OF Force 516 (R. Art
& K. Waltz eds. 1983).

100 R Jervis, THE ILLOGIC OF AMERICAN NUCLEAR STRATEGY 71-72 (1984).

101 Qr to phrase this problem more concretely, in the aftermath of a nuclear holocaust, what
political, military, or economic difference will it make if the Soviet counterpart to the mayor of
Mattooa, Illinois (population 19,800) is alive or dead?

102 See Schultz, U.S.-Soviet Relations in the Context of U.S. Foreign Policy, DEp’T ST. BULL., July
1983, 6%, 66; Reagan, Arms Control and the Future of East-West Relations, DEP'T ST. BULL, June
1982, 34

103 Tias they did once before en masse during World War I when the Tsarist Empire collapsed.
See L Garey, THE First Firry YEARS: SOVIET Russia 1917-67, at 159-62, 175 (1967); G. VON
Raucn, A History oF SovieT Russia 78-87 (6th ed. 1972). And during World War II, several
ethnic groups such as the Ukrainians and Volga Germans proved completely unreliable. See B.
DmMyYTRYSHYN, U.S.S.R.: A CONCISE History 223 (3d ed. 1978); SovieT NATIONALITIES POLICY
IN PRacnicE 102 (R. Conquest ed. 1967).

104 P. PRINGLE & W. ARKIN, supra note 92, at 189-90.

1437

NORTHWESTERN UNIVERSITY LAW REVIEW

Russian people were selected for repeated and especially severe nuclear
destruction solely because of their constituent ethnicity. Whatever the
alleged justification for this practice, all United States government offi-
cials who were involved in the nuclear targeting of ethnic groups actually
conspired to commit genocide, an international crime recognized by Ar-
ticles 1, 2, 3, and 4 of the UN Convention on the Prevention and Punish-
ment of the Crime of Genocide.'° To the extent that the Reagan
Administration has merely continued to incorporate the Carter Adminis-
tration’s counterethnic targeting philosophy in its version of the SIOP,
all civilian and military government officials who know or should know
about this practice must assume full personal responsibility under inter-
national law for conspiring to commit genocide. !°°

E. A Preemptive Nuclear Strike upon the Soviet Union

The Reagan Administration's counterargument in support of the de-
ployment of these offensive, first-strike counterforce strategic nuclear

103 Genocide Convention of 1948, 78 U.N.TSS. 277 (signed by U.S. on Dec. 11, 1948), reprinted in
N. ROBINSON, THE GENOCIDE CONVENTION: A COMMENTARY (1960)):

ARTICLE I

The Contracting Parties confirm that genocide, whether committed in time of peace or in
time of war, is a crime under international law which they undertake to prevent and to punish.
ARTICLE II

In the present Convention, genocide means any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

ARTICLE III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

ARTICLE IV

Persons committing genocide or any of the other acts enumerated in article III shall be
punished, whether they are constitutionally responsible rulers, public officials or private
individuals.

106 ARMY FIELD MANUAL, supra note 16, at 7 501:
501. Responsibility for Acts of Subordinates

In some cases, military commanders may be responsible for war crimes committed by
subordinate members of the armed forces, or other persons subject to their control. Thus, for
instance, when troops commit massacres and atrocities against the civilian population of occu-
pied territory or against prisoners of war, the responsibility may rest not only with the actual
perpetrators but also with the commander. Such a responsibility arises directly when the acts in
question have been committed in pursuance of an order of the commander concerned. The
commander is also responsible if he has actual knowledge, or should have knowledge, through
reports received by him or through other means, that troops or other persons subject to his
control are about to commit or have committed a war crime and he fails to take the necessary
and reasonable steps to insure compliance with the law of war or to punish violators thereof.

See also Application of Yamashita, 327 U.S. 1 (1946).

1438

a a a ae ea

80:1407 (1986) Nuclear Deterrence

weapons systems is that the Soviet Union currently possesses the option
to launch a surprise nuclear attack upon United States ICBM silos, and
therefore that the United States must match the Soviet capability.'°7 De-
spite the harangue by the Committee on the Present Danger,!°® however,
and later under its influence by the Reagan Administration, there is abso-
lutely no indication that the Soviets have or will have the capability to
launch a “disarming”’ surprise first-strike upon United States ICBM si-
los.'°? Even if the Soviets did attack, United States submarine-launched
ballistic missiles and quick-alert bombers would still remain secure for
the purpose of executing a retaliatory attack.!!° The high probability of
such a response should deter any type of Soviet first-strike counterforce
nuclear attack upon the United States.

Technical considerations aside, though, it is crucial to address the
legal, moral, and philosophical dimensions of Reagan’s argument in
favor of the United States government’s reciprocating against some al-
leged Soviet capability to launch a surprise nuclear attack upon its adver-
sary. That the Soviet Union might someday decide to pursue a patently
illegal policy of developing a first-strike counterforce strategic nuclear
weapons capability provides no good reason why the United States gov-
ernment should automatically do the same. The United States must ana-
lyze the strategic nuclear equation in light of both its own vital national
interests and its own cherished national values. In particular, the United
States cannot abandon or pervert its national values simply because its
adversary might not share them. Likewise, the United States cannot ig-
nore its vital national interest in upholding the international legal order
just because the Soviets might not share that same interest. If United
States policy mimics that of the Soviets, then the United States gradually
becomes like them, eventually becoming indistinguishable. In other
words, the United States government will become just as Machiavellian
in its conduct of foreign affairs and domestic policy as the Soviets alleg-
edly are.!1!

Therefore, even if the Soviet Union sets out to develop an offensive
first-strike counterforce strategic nuclear weapons capability against
United States ICBM silos, that does not sufficiently justify the United
States response to do the same. Indeed, if the SALT II Treaty had been
ratified by the United States as it has been by the Soviet Union,!!? there

107 See Reagan, Peace and National Security, Dep’T ST. BULL., Apr. 1983, at 8-9; Rostow, Pros-
pects for Arms Control, Dep’T ST. BULL., Dec. 1981, at 68, 69-70.

108 Boyle, supra note 86, at 267-73.

109 fd. at 270-73.

110 See id; see also REPORT OF THE PRESIDENT’S COMMISSION ON STRATEGIC Forces (Apr. 6,
1983).

111 This author, however, does not subscribe to such a demonical interpretation of Soviet
behavior. .

112 See Breszhnev, Carter Sign Salt-II, Part II, The Current Digest of the Soviet Press, July 18,
1979, at 9,13 (The Politburo of the CPSU Central Committee, the Presidium of the USSR Supreme

1439

NORTHWESTERN UNIVERSITY LAW REVIEW

would exist no hypothetical rationale for either superpower to pursue the
development of a first-strike counterforce strategic nuclear weapons ca-
pability. The main obstacle to the prevention of a first-strike nuclear
arms race between the two superpowers has proven to be the Reagan
Administration’s obstinate refusal to support the ratification of the
SALT II Treaty because it is alleged to be “fatally flawed” in some mys-
terious manner.!!3

FE.’ Nuclear Deterrence of Conventional Warfare

Basically, in accordance with the fundamental rules of international
law, the threat to use nuclear weapons can be justified, if at all, only on
the grounds of legitimate self-defense as recognized by article 51 of the
United Nations Charter.'!* Although the requirement of legitimate self-
defense is a necessary precondition to the legality of any theory of nu-
clear deterrence, it alone is certainly not sufficient. The threat to use
nuclear weapons must also take into account the customary and conven-
tional international laws of humanitarian armed conflict.

Professor Burns H. Weston at the University of Iowa College of
Law has usefully reduced the essence of the international laws of human-
itarian armed conflict into six basic principles: ,

Rule 1. It is prohibited to use weapons OT tactics that cause unnecessary Or
aggravated devastation and suffering. Rule 2. It is prohibited to use weap-
ons or tactics that cause indiscriminate harm as between combatants and
noncombatant military and civilian personnel. Rule 3. It is prohibited to
use weapons or tactics that cause widespread, long-term and severe damage
to the natural environment. Rule 4. It is prohibited to effect reprisals that
are disproportionate to their antecedent provocation or to legitimate mili-
tary objectives, or disrespectful of persons, institutions and resources other-
wise protected by the laws of war. Rule 5. It is prohibited to use weapons
or tactics that violate the neutral jurisdiction of nonparticipating States.
Rule 6. It is prohibited to use asphyxiating, poisonous or other gases, and
all analogous liquids, materials or devices, including bacteriological meth-

ods of warfare.!!5
At first glance, it would appear that a “battlefield nuclear war” in Europe
would be the only type of threatened nuclear warfare now realistically
contemplated by the United States government that may, theoretically,
be somewhat consistent with the criteria of international humanitarian
law. Certainly, “defense” of the NATO alliance is the most important of

re ee neural
Soviet, and the USSR Council of Ministers wholly and completely approve of the Salt II Treaty).
The law adopted by the USSR Supreme Soviet on July 6, 1978, Vedomosti SSSR (1978), no. 28, item
439, Article 11, reprinted in W. BUTLER, BASIC DocuMENTS ON THE SOVIET LEGAL SYSTEM 288
(1983), states: “In accordance with the USSR Constitution, the international treaties of the USSR
shall be ratified by the Presidium of the USSR Supreme Soviet.”

113 See Boyle, supra note 86, at 278.

114 U.N. CHARTER art. 51. |

115 Weston, supra note 1, at 554-59.

1440

80:1407 (1986) Nuclear Deterrence

all circumstances under which the United States government forthnghtly
proclaims its near-instantaneous readiness to use nuclear weapons. The
longstanding United States governmental policy dictates that in the event
of a Soviet conventional attack upon Western Europe, the United States
would be fully prepared to respond with nuclear weapons. If necessary,
this could escalate from battlefield nuclear weapons, to tactical nuclear
weapons, to theater nuclear forces, and finally to strategic nuclear attack
by the United States upon the Soviet Union itself. That is well-estab-
lished United States and NATO policy, but is it correct; efficacious, or
even sensible?

Because the responsive use of nuclear weapons to repel a conven-
tional attack would be totally disproportionate to the threat presented
and therefore constitute an impermissible act of self-defense,''® an inter-
national legal analysis would say “no.” The counterargument that the
use of United States battlefield nuclear weapons stationed in Europe
would entail a roughly proportionate response to a Soviet conventional
attack rests on pure speculation, not established fact. NATO has already
determined that its battlefield nuclear weapons are essentially useless, if
not suicidally dangerous, because it has no idea of their precise yields,
accuracy, survivability, or operational reliability under battle condi-
tions.!!7 In theory, the proposition that a “battlefield nuclear war is
legal” might sound appealing, but in practice it fails to live up to its
hypothetical expectations.

The above observation should lead the United States government to
conclude that it is far better for NATO to phase out all of its battlefield,
tactical, and theater nuclear weapons systems from Europe as part of a
negotiated process with the Soviet Union for doing the same, and build
up, if necessary, United States and NATO conventional forces to a level
sufficient to deter any anticipated, though unlikely, Soviet conventional
invasion of Europe. A similar argument from a nonlegal perspective has
already been developed by George Ball.''®

116 See, eg., D. BOwETT, SELF-DEFENSE IN INTERNATIONAL Law 13 (1958); J. MURPHY, THE
UNITED NATIONS AND THE CONTROL OF INTERNATIONAL VIOLENCE 17-18 (1982); A. THOMAS &
AJ. THOMAS, JR., LEGAL LIMITS ON THE USE OF CHEMICAL AND BIOLOGICAL WEAPONS 208
(1980).

117 McNamara, The Military Role of Nuclear Weapons: The Perceptions and Misperceptions, 62
ForEIGN AFF. 59, 68-70 (1983); N.Y. Times, Mar. 15, 1983, at A3, col. 1 (report by NATO's North
Atlantic Assembly urging United States to reduce stock of battlefield nuclear weapons in Europe
because of obsoleteness and unreliability).

118 Ball, The Cosmic Bluff, N.Y. REV. Books, July 21, 1983, at 37-41. The only minor point of
contention concerning Ball’s position is that it is not inevitable that the United States would have to
couple a negotiated denuclearization of Europe with an enormous buildup in NATO conventional
forces. Such Euronuclear negotiations could be tied into the Mutual and Balanced Force Reduction
(MBFR) negotiations, which, admittedly, are currently stalemated in Vienna. See Brady, Negotiat-
ing European Security: Mutual and Balanced Force Reductions, 6 INT'L SEC. REV. 189 (1981). Yet
in the proposals on the table so far, both sides are in basic agreement on the principle that NATO
and the Warsaw Pact should each reduce to the identical level of 900,000 men, with no more than

1441

NORTHWESTERN UNIVERSITY LAW REVIEW

The Warsaw Pact’s component forces are completely unreliable. In
the improbable event the Soviets did decide to launch an offensive inva-
sion of Western Europe,!!9 it would be highly unlikely that the national
military forces of Poland, Hungary, Czechoslovakia, and Romania
would fight by their side. It is doubtful whether the forces of East Ger-
many would be prepared to invade West Germany at the behest of the
Soviet Union. Perhaps the greatest deterrent to a Soviet invasion of
Western Europe is this realization by the Soviet Union’s Great Russian
governing elite: In the event of outright military hostilities, the armed
forces of all these Warsaw’ Pact countries might very well exploit the
opportunity to rise up in revolt against their respective Soviet occupying
forces. Furthermore, Soviet citizens living in the Ukraine, Byellorussia,
Estonia, Latvia, Lithuania, the Caucasus, and Soviet Central Asia might
decide to do the exact same thing. The Red Army itself could then very

well collapse when its non-Russian soldiers refuse to fight and die for
their Soviet masters. !2°

Historically, the primary deterrent to a Soviet invasion of Western
Europe has always been its Great Russian elite’s acute anxiety engen-
dered by the highly tenuous nature of the influence they exert over their
so-called Warsaw Pact allies as well as over substantial segments of their
own population. Neither the United States strategic nuclear deterrent,
nor the United States creation of a nuclear tripwire for NATO by the
stationing of 350,000 American troops in West Germany, nor the deploy-
ment of thousands of nuclear weapons in NATO countries has contrib-

uted more than marginally to the effectiveness of this perceptual
deterrent.

Therefore, the Reagan Administration’s blithe assertion that the
peace of Europe has somehow been preserved for the past thirty years
because of the presence of battlefield nuclear weapons on NATO terri-
tory is totally misleading.'?! Rather, the peace of Europe has somehow
been miraculously maintained during this period despite the presence of
thousands of nuclear weapons on both sides of the continent. Yet the

700,000 ground troops. See The Negotiations on the Mutual Reduction of Forces and Armaments
and Associated Measures in Central Europe, ARMS CONTROL REP., July 1984, at 401. The achieve-
ment of a rough equality in conventional forces at such lower levels between NATO and the Warsaw
Pact would materially reduce any incentive for the latter to launch a conventional attack while at the
same time obviating the need for a massive buildup in NATO's conventional forces. An effective
conventional deterrent could be maintained at lower levels of potential violence on both sides of the
“balance of terror” without the need for either to field a nuclear deterrent to a conventional attack.

119 Salt [I Statement of Witnesses in Third Week of Hearings Before the Senate Foreign Relations
Comm., 96th Cong., Ist Sess. 21,544 (1979) (statement of Prof. Richard Pipes).

120 The replication of this pattern of virulent nationalistic behavior during both World Wars I
and II continues to serve as a sufficient deterrent to any Great Russian leadership elite seriously

contemplating an invasion of Western Europe. See J. CLARKSON, A History OF RussIA 683-85
(1969); I. GREY, supra note 103; G. VON RAUCH, supra note 103.

121 Rowny, Nuclear Arms Control and the NATO Alliance, Dep’T ST. BULL., Aug. 1984, at 38.

1442

80:1407 (1986) Nuclear Deterrence

United States and NATO, on the one hand, and the Soviet Union and the
Warsaw Pact, on the other hand, must not continue to rely upon good
fortune to protect themselves from the outbreak of a battlefield or theater
nuclear war in Europe.

A conventional attack by the Soviet Union and the Warsaw Pact
upon Western Europe should be resisted by a conventional NATO de-
fense. This would be in accordance with basic principles of international
law. Under such apocalyptic circumstances the only possible utility nu-
clear weapons might serve is that the threat of their use could deter a
similar use by an adversary. Historically, this situation would be similar
to the nonuse of chemical weapons and poison gas during World War II.
Pursuant to the Geneva Protocol of 1925, neither the Allies nor the Axis
used such weapons in the European theater of operations, though each
side maintained a stockpile in order to deter their first use by its adversa-
ries.'22, The Geneva Protocol effectively worked to prevent the use of
these early weapons of mass destruction during the utter desperation of
World War II, despite the fact that their potency had been amply
demonstrated during World War I. Just as the prior existence of these
early weapons proved to be politically and militarily irrelevant to the
outbreak of World War II, so too the existence of battlefield, tactical, and
theater nuclear weapons systems in Europe will likewise demonstrate

themselves to be immaterial to the successful or unsuccessful prevention
of World War III.

Today, the Soviet Union has already given a unilateral pledge of “‘no
first use’’ of nuclear weapons, thus creating a binding international legal
obligation on its own accord.!23 NATO and the United States must re-
spond in kind,'2* and then both must express their readiness to conclude
a formal treaty with the members of the Warsaw Pact. Considerations of
international law would fully support such a no-first-use treaty as a pre-
liminary step toward the complete elimination of battlefield, tactical, and
theater nuclear weapons from Europe. Yet while the Soviet Union has
already agreed to conclude a no-first-use treaty, the Reagan Administra-
tion has continually rejected such a worthwhile endeavor. !*°

G. The Illegality of Possessing Nuclear Weapons

The final question that needs to be addressed concerning the rele-

122 See A. THomaS & A.J. THOMAS, JR., supra note 116, at 137-48; see also Daniell, Churchill
Says Britain Will Use Gas if Reich Tries It in Russia, N.Y. Times, May 11, 1942, at Al, col. 8.

123 See Weiler, No First Use: A History, BULL. ATOM. Sci., Nov. 1983, at 33; Nossiter, Sovier
Forswears Using A-Arms First, N.Y. Times, June 16, 1982, at Al, col. 3.

124 Bundy, Kennan, McNamara & Smith, Nuclear Weapons and the Atlantic Alliance, 60 For-
EIGN AFF. 753 (1982); McNamara, supra note 117, at 73.

125 Compare N.Y. Times, Dec. 5, 1984, at 4, co!. 5 (Chernenko makes commitment against first
use of nuclear weapons) with Christian Science Monitor, Dec. 5, 1984, at 2, col. 2 (Reagan spokes-
man rejects no-first-use treaty).

1443

NORTHWESTERN UNIVERSITY LAW REVIEW

vance of international law to the paradox of nuclear deterrence is
whether it is lawful for a state even to possess nuclear weapons. The
question itself, however, is completely speculative and misdirected, if not
outright misleading, for it obfuscates the fact that today’s acknowledged
nuclear weapons states'?® do not simply possess nuclear weapons.
Rather, they have actively deployed nuclear weapons in enormous num-
bers and varieties by attaching them to delivery vehicles that are inter-
connected with sophisticated command, control, communication, and
intelligence (C*I) networks.'27 Such nuclear weapons systems are ready
for almost instantaneous launch. Hence, the only meaningful question
concerns the legality of modern nuclear weapons systems as they are cur-
rently deployed and programmed for use.

If the nuclear weapons states had actually kept all their nuclear de-
vices stored in warehouses where they were separated from their respec-
tive delivery vehicles, it might be pertinent to answer the question
whether such mere possession of nuclear weapons was legal under inter-
national law. Yet the nuclear weapons systems maintained by all the
world’s nuclear weapons states, and especially by the two superpowers,
are far beyond this stage of mere possession, and have been at the point
of deployment and preparation for immediate use in a thermonuclear
war for quite some time. As pointed out earlier in this Article, under the
Nuremberg Principles, such planning, preparation, and conspiracy to
commit crimes against peace, crimes against humanity, and war crimes,
inter alia, constitute international crimes in their own right.!28

The appropriate analogy from domestic law to be applied here is not
the handgun kept in the bedroom bureau drawer for the. purposes of le-
gitimate self-defense against a home intruder; it is, rather, a shotgun that
is fully loaded and pointed at the head of another human being, with the
safety catch off, the hammer cocked, the firing mechanism set on a hair-
trigger, and the assailant’s finger ready, willing, and able to twitch at an.
instant’s notice, even possibly because of a mistake or an instinctive re-
flex. This behavior is criminal under the domestic legal system of any
state in the world community today, and thus violates a general principle
of law recognized by all civilized nations.!?9

In any jurisdiction within the United States, such criminal activity
purposely and knowingly engaged in by two individuals against each
other would render both guilty of aggravated assault, assault with a

126 That is, the United States, Great Britain, France, the Soviet Union, the People’s Republic of
China, and Israel, among others.

127 P. BRACKEN, supra note 93, at 212-32.
128 See supra text accompanying notes 41-49.
129 L.C.J. Stat. art. 38, para. 1(c); “1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply: ... c. the general principles of

law recognized by civilized nations. . . ,” reprinted in S. ROSENNE, DOCUMENTS ON THE INTER-
NATIONAL COURT OF JUSTICE 77 (1974).

Ves

80:1407 (1986) Nuclear Deterrence

‘deadly weapon, and reckless endangerment of a human being.'*° More-

over, as would be true for duelling, Russian Roulette, or “playing
chicken” with automobiles, the fact that two or more individuals volun-
tarily participated in such a joint criminal enterprise would not excuse
anyone from personal responsibility. In the case of modern nuclear
weapons systems, the two nuclear superpowers have both committed and
continue to commit the international crime of recklessly endangering the
entire human race. They cannot exonerate themselves from joint and
several criminal responsibility for such illegal behavior by invoking the
unlawful conduct of their co-felons.

The above argument refutes the claim that just because six states in
today’s world community already possess and deploy nuclear weapons
systems and several more are diligently pursuing policies designed to ac-
quire a nuclear weapons capability, their behavior somehow negates the

' existence of international legal rules prohibiting the possession and de-

ployment of nuclear weapons and related delivery and C°I systems.'3! A
small band of criminals never have been permitted to argue that their

own lawless conduct eee the maa of the very laws they have
violated. !32

The repeated commission of criminal acts by a few miscreant states
cannot create a right for them to continue to do so unless, perhaps, the
rest of the international community might agree to abrogate the applica-
ble rules of law. As of January 1, 1986, there were 133 state parties to
the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NFT), of
which article 2 prohibits non-nuclear weapons state parties from acquir-
ing a nuclear weapons capability.'33 That of the six acknowledged nu-
clear weapons states, only three (the United States, Great Britain, and
the Soviet Union) are parties to the NPT does not mean that the non-
nuclear weapons states thereby have consented implicitly to the legality
of their possession and deployment of nuclear weapons and related deliv-
ery and C’I systems. Even if the NPT were to be abrogated by the non-
nuclear weapons states because the nuclear weapons state parties have

— =

130 See, e.g., MODEL PENAL CoDE § 211.2 (1962):

A person commits a misdemeanor if he recklessly engages in conduct which places or may place

another person in danger of death or serious bodily injury. Recklessness and danger shall be

presumed where a person knowingly points a firearm at or in the direction of another, whether

or not the actor believed the firearm to be loaded.

131 Reisman, Nuclear Weapons in International Law, 4 N.Y.L. Scu. J. INT'L & Comp. L. 339,
341-42 (1983).

132 The maxim ex injuria non oritur jus is a general principle of law recognized by all civilized
nations, and therefore a rule of international law as well. Brownlie, supra note 1, at 451.

133 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, T.LA.S.
No. 6839, 729 U.N.T.S. 161. Article 2 provides,

Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer
from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of
control over such weapons or explosive devices directly, or indirectly; not to manufacture or
otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive
amy assistance in the manufacture of nuclear weapons or other nuclear explosive devices.

1445

NORTHWESTERN UNIVERSITY LAW REVIEW

already committed a material breach of the treaty by failing to perform
their obligations under article 6,'!3+ the possession and deployment of nu-
clear weapons and their related systems would still remain illegal because
they violate the various rules of international law enumerated earlier.'?*

Indeed, any international agreement purporting to legalize the pos-
session and deployment of nuclear weapons and their related systems
would violate a peremptory norm of international law and thus be void in
accordance with article 53 of the 1969 Vienna Convention on the Law of
Treaties.'3° If piracy, slavery, armed aggression, crimes against peace,
crimes against humanity, war crimes, and genocide are universally con-
sidered to violate jus cogens, then the threat by the two nuclear super-
powers to exterminate the entire human race, coupled with their
imminent capability to do so, must likewise do the same. To argue that
the present system of nuclear deterrence as practiced by the two super-
powers and their nuclear cohorts is lawful, one must in essence deny the
very existence of such a phenomenon as a “peremptory’”’ norm of interna-
tional law. It is doubtful whether this would be the intention of even
those who are most fervently committed to promoting the abstract prop-
osition that nuclear deterrence is legal.

VY. CONCLUSION

Pursuing this Article’s functionalist perspective, several points be-
come clear concerning the relevance of international law to the “para-
dox” of nuclear deterrence. First, a surprise, preemptive nuclear strike
by the United States upon the Soviet Union is absolutely prohibited,
without exception. Consequently, all first-strike counterforce strategic
nuclear weapons systems such as the MX, Pershing 2, and Trident 2/
Delta 5 warhead must not be deployed, and the United States should
seek to negotiate a mutual ban on the deployment of their Soviet counter-
parts. This development would facilitate a formal international agree-
ment prohibiting the adoption of a “launch-on-warning’”’ nuclear
response doctrine by either the Soviet Union or the United States. All
first-strike contingency scenarios then should be removed from United

on —— — —

134 [d. at art. 6: “Each of the Parties to the Treaty undertakes to pursue negotiations in good
faith on effective measures relating to cessation of the nuclear arms race at an early date and to
nuclear disarmament, and on a treaty on general and complete disarmament under strict and effec-
tive international control.”

133 See supra text accompanying notes 29-68.

136 Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/Conf. 39/27, at 287,
296 (1969), (1980) Gr. Brit. T.S. No. 58 (Cmd. 7964) (entered into force Jan. 27, 1980), reprinted in
$8 LL.M. 679, 698-99 (1969); 63 Am. J. INT'L L. 875, 891 (1969). Article 53 provides as follows:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory norm of
general international law is a norm accepted and recognized by the international community of

states as a whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same character.

1446

80:1407 (1986) Nuclear Deterrence

States war plans, and Congress should pass implementing legislation
making it a federal crime for United States government officials and mili-
tary officers to practice first-strike scenarios, even during war games.

Second, a United States nuclear attack upon Soviet population cen-
ters is prohibited under all circumstances, even if undertaken in retalia-
tion for a prior nuclear attack against United States population centers.
Consequently, the doctrine of “mutual assured destruction” must be
abandoned as the cornerstone of American strategic nuclear deterrence
policy. The Reagan Administration’s plan to substitute for it the devel-
opment of a “protracted nuclear-war-prevailing” capability, however, is
not the proper direction in which to move. Rather, the correct approach
is prescribed by article 6 of the 1968 Treaty on the Non-Proliferation of
Nuclear Weapons (NPT), which both the United States and the Soviet
Union are bound to obey as parties: “Each of the Parties to the Treaty
undertakes to pursue negotiations in good faith on effective measures re-
lating to cessation of the nuclear arms race at an early date and to nu-
clear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.’’!37

The United States government must in good faith negotiate genuine
and effective nuclear arms control and reduction agreements with the
Soviet Union. Ultimately, the formal ratification of SALT II or of some
cosmetic substitute by the United States government will prove to be the
necessary precondition for any progress in negotiating nuclear arms re-
duction agreements with the Soviet Union. Strategic Arms Reduction
Talks (START) can succeed only within the context of a ratified SALT
IL The essense of a START agreement can still be obtained if the United
States government ratifies the SALT II Treaty. Both superpowers then
should agree to lower the numerical limitations on strategic nuclear de-
livery vehicle launchers and to extend indefinitely the life of a ratified Salt
II Treaty as so amended. At that point, further percentage reductions in
the SALT II limitations could be negotiated on a periodic basis, while
both superpowers declare and observe a bilateral moratorium on the
modernization of their strategic nuclear weapons systems.

In the meantime, while moving toward the goals set forth in NPT
article 6, the United States government must declare that in the event of
a nuclear or conventional attack upon the United States or the members
of the NATO alliance by the Soviet Union, the United States would not
under any circumstances actually use its nuclear weapons against Soviet
population centers. The United States government should seek a recipro-

is igen
'37 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, T.LA.S.

No. 6839, 729 U.N.T.S. 161; see Walsh, Reagan Changes Course on Non-Proliferation, 216 Sci. 7
(1982). For some indication of what the Reagan Administration's nebulous nonproliferation policy
might be, see L. DUNN, CONTROLLING THE BOMB (1982), reviewed by Boyle, 77 AM. J. INT'L L. 98]

(1983). Dunn became Special Assistant for Nuclear Affairs at the State Department in the Reagan
Administration.

1447

NORTHWESTERN UNIVERSITY LAW REVIEW

cal statement from the Soviet Union along those lines and offer to con-
clude a formal treaty specifically prohibiting both a nuclear attack upon,
as well as the strategic nuclear targeting of, their respective civilian popu-
lation centers. International lawyers working for the Departments of
Defense, State, and Justice must be given the authority to revise the

SIOP in accordance with these and all other requirements of interna-
tional law.'38

Finally, since nuclear weapons must never be used in response to a
conventional attack, NATO should adopt a “‘no-first-use” of nuclear
weapons policy for the defense of Europe and agree to conclude a treaty
to that effect with the Warsaw Pact. NATO and the Warsaw Pact
should commence immediate negotiations for the removal of all battle-
field, tactical, and theater nuclear weapon systems from the continent of
Europe. The MBFR negotiations at Vienna should be revitalized in or-

der to prevent a massive buildup in conventional military forces on either
side of the continent.

138 See U.S. Dep’t of Defense Instruction No. 5500.15 (Oct. 16, 1974). Paragraph 2 provides as
follows:

All actions of the Department of Defense with respect to the acquisition and procurement
of weapons, and their intended use in armed conflict, shall be consistent with the obligations
assumed by the United States Government under all applicable treaties, with customary inter-
national law, and, in particular, with the laws of war.

1448

INTERNATIONAL PRACTITIONERS

No. 29

January 1985

DESTRUCTIVE ENGAGEMENT
IN SOUTHERN AFRICA

From the very moment of its inception, the primary ob-
jective of the Reagan Administration’s foreign policy
toward southern Africa was to secure the withdrawal of
Cuban troops from Angola in the expectation of claiming
a victory against Castro and ‘‘worild communism.” It has
little to do with promoting self-determination and human
rights for the non-white majority in South Africa, or ob-
taining independence for Namibia, or even terminating
aggression by the South African apartheid regime
against its immediate neighbors. The Reagan Adminis-
tration’s evisceral hatred for Castro led it to adopt poii-
cies toward southern Africa that contravened the princi-
ples of international law and the pertinent resolutions of
international organizations mandating both the in-
dependence of Namibia and the destruction of apart-
heid. The Reagan Administration’s myopic concentra-
tion on the Cuban presence in Angola has only led the
United States farther into the deadly embrace of the ag-
gressive South African apartheid regime.

The Reagan Administration’s policy of so-called *‘con-
structive engagement”’ violates the international legal
right of the people of South Africa to self-determination
as recognized by the United Nations Charter, Article
1(2). This specious policy simply encourages the further
practice of oppression and discrimination against the
non-white majority of that country. It has also facilitated
aggressive conduct by the South African apartheid
regime — either directly or indirectly by means of surro-
gates — against neighboring governments in Angola,
Mozambique, Lesotho, Zimbabwe and the Seychelles, in
violation of Article 2(4) of the United Nations Charter.

In the collective viewpoint shared by most Black
African states, the Reagan Administration’s policy of
“constructive engagement’ has only rendered the
United States government an accomplice to the commis-
sion of the international crimes of apartheid and geno-
cide as recognized, respectively, by the universally ac-
cepted International Convention on the Suppression and
Punishment of the Crime of Apartheid (1973) and the
Convention on the Prevention and Punishment of the
Crime of Genocide (1948). It is a shocking disgrace that

34

the United States of America has not yet become a party
to either one of these two seminal conventions providing
for the international protection of the fundamental
human rights of members of ethnic groups threatened
with extermination.

Nevertheless, under the Anglo-American common law
doctrine of accomplice liability — which is one of those
‘‘general principles of law’’ referred to by Article 38(1) of
the Statute of the International Court of Justice — the
Reagan Administration’s “constructive engagement”
with the South African apartheid regime has aided and
abetted the latter’s commission of the underlying sub-
stantive offenses of apartheid and genocide, and thus
subjects the former to responsibility as a principal in the
first degree to the commission of these heinous interna-
tional crimes. Under general principles of law long
recognized by all civilized nations, ‘‘constructive en-
gagement” with criminals has always created accom-
plice liability, even if the motive for such complicitous be-
havior is allegedly beneficent. According to the jurispru-
dence of Anglo-American criminal law, legal responsibili-
ty is created by the mere intention to purposefully or
knowingly engage in ‘‘constructive’” behavior with a
criminal enterprise, irrespective of the supposed motive
for being ‘‘constructive.’’ Intentional behavior is all that
is required to produce criminal responsibility.

Integrally related to the Reagan Administration’s pol-
icy of ‘constructive engagement”’ in the commission of
apartheid, genocide and aggression is its support for the
illegal South African occupation of Namibia. The Reagan
Administration’s failure to actively support the in-
dependence of Namibia has undercut the good political
relations with Black African states that were successfully
promoted during the Carter Administration. The right of
the Namibian people to self-determination had been
firmly established under international law long before the
South African and American governments decided to
intervene into the Angolan civil war. Consequently, the
Reagan Administration has no right to obstruct the
achievement of Namibian independence by conditioning
it upon or “‘linking’’ it to the withdrawal of Cuban troops
from Angola in any way.

Cuban troops are in Angola to the express request of
the legitimate government of that country in order to pro-
tect it from overt and covert aggression mounted by the
South African apartheid regime from Namibia. There is
absolutely no international legal justification for South
African aggression against, and continued military occu-
pation of, Angola in order to maintain and consolidate its
reprehensibly illegal occupation of Namibia. The
Angolan government has repeatedly stated that when
South Africa leaves Namibia it will request the with-
drawal of Cuban troops, and Cuba has agreed to with-
draw its troops whenever so requested by Angola. Ac-
cording to the relevant rules of international law, that is
the proper sequence of events to be followed. With
South Africa finally dislodged from Namibia, there would
be no need for the presence of Cuban troops in Angola.
By contrast, the Reagan Administration’s ‘‘linkage’”’ of

Cuban troops in Angola with the independence of
Namibia encourages South African aggression against
Angola, and thus perpetuates the presence of Cuban
troops in the region.

The Reagan Administration has willfully refused to
carry out its obligations under U.N. Security Council
Resolution 435 (1978) providing for the independence of
Namibia, as required by Article 25 of the U.N. Charter.
Both the U.N. General Assembly and the Organization of
African Unity have determined that the Southwest
African Peoples’ Organization (‘‘SWAPO’’) is the ‘‘sole
and authentic’ representative of the Namibian people.
Yet the Reagan Administration has attempted to circum-
vent both the Security Council and SWAPO by sponsor-
ing the conclusion of a separate deal on Namibia be-
tween South Africa, on the one hand, and the so-called
‘front-line’ states and Angola, on the other, even
though none of them possess any legal authorization to
negotiate on behalf of the Namibian people. As part of
this duplicitous process, the Reagan Administration has
stationed U.S. diplomats in Namibia in explicit violation
of the U.N. mandated embargo against granting any
form of international diplomatic recognition to the illegal
South African occupation of Namibia.

It is obvious that the South African apartheid regime,
with the “‘constructive engagement”’ of the Reagan Ad-
ministration, has substituted force for the rule of interna-
tional law in its conduct of foreign policy in southern
Africa, and has engaged in a gross and consistent pat-
tern of violations of the most fundamental human rights
of its own people. It has thus created a serious threat to
the maintenance of international peace and security
under Article 39 of the United Nations Charter that calls
for the imposition of additional enforcement measures
by the Security Council under Chapter Vil. Since the
U.N. mandated arms embargo of 1977 has proven in-
sufficient to induce South African compliance with the
most rudimentary requirements of international law, the
Security Council must now invoke its enforcement
powers under Articles 25, 39 and 41 of the U.N. Charter
to require that ail other members of the United Nations
impose the sanctions of ‘complete or partial interruption
of economic relations and of rail, sea, air, postal, tele-
graphic, radio and other means of communications, and
the severance of diplomatic relations’ upon the South

African apartheid regime.

To be sure, under Article 27 of the U.N. Charter, the
Reagan Administration could veto the adoption of any
enforcement measures by the Security Council. Never-
theless, that would not be the end of the matter. In the
event of such a veto by the Reagan Administration, the
matter could then be turned over for action to the U.N.
General Assembly in accordance with the procedures
set forth in the Uniting for Peace Resolution of 1950.
Under the powers granted by this pathbreaking Resolu-
tion, the General Assembly could recommend, but not
require, that all U.N. members impose on their own ac-
cord the specific set of sanctions described in Article 41

against the South African apartheid regime. Of course
the recommendation of such sanctions would have to be
approved by a two-thirds vote of the United Nations Gen-
eral Assembly. But it is no longer the case that the
United States can successfully force its will upon that
body. '

Admittedly, if the General Assembly were. to adopt
such sanctions, they would not be binding upon: the
member states of the international community, but only
recommendatory. Nevertheless the General Assembly’s
adoption of such sanctions would provide the legal basis
for any state that has the will to carry them out to do so
without being held legally responsible for violating any
rules of customary international law to the contrary or
any terms of the United Nations Charter. In this way the
South African apartheid regime’s gross international
lawlessness could be effectively opposed by all mem-
bers of the world community in a manner consistent with
the requirements of international law.

Moreover, since the United States government origi-
nally proposed and sponsored the passage of the
Uniting for Peace Resolution in the General Assembly
for the express purpose of circumventing the abusive
exercise of the veto power by the Soviet Union in the
Security Council during the Korean War, the Reagan Ad-
ministration would be estopped to deny that such coilec-
tive measures against the South African apartheid
regime by the membership of the General Assembly
were lawful. In the Certain Expenses Advisory Opinion of
1962, the Internationai Court of Jusiice gave its stamp of
approval to the Uniting for Peace procedure when it was
used to create the United Nations Emergency Force
(UNEF) for the purpose of facilitating the termination of
the 1956 Middle Eastern War. Since the United States
government took the lead roie in arguing the Certain Ex-
penses case before the Internationai Court of Justice, it
would be extremely difficult for the Reagan Administra-
tion to repudiate the World Court’s express approval of
the Uniting for Peace procedure without running the sub-
stantial risk of being accused of rank hypocrisy by the
entire world community. Most regrettably, so far the
Reagan Administration has not been deterred by that

prospect during the first four years of its tenure. But if the
United States of America will not act to extirpate the ag-
gressive fruits of apartheid in southern Africa, then other
members of the international community must lead the

way.

Francis A. Boyle

Mr. Boyle is Professor of Law at the University of Illinois
College of Law in Champaign, Illinois. For an opposing
view, see Chester Crocker’s ‘‘Viewpoint’’ in the October,

1984 issue of the IPN.

© Copyright 1984 by Francis A. Boyle. All rights re-
served.

Wednesday, February 7, 1990 The Daily Illini

Francis Boyle

Ul professor
probes U.S.
_ intervention

by Christine Tirona

University professor Fran-
cis Boyle asked students on
Tuesday night to “develop a
little skepticism.”

Boyle, professor of inter-
national law, gave a speech
sponsored by the People’s Al-
liance for Central America, an
activist group calling for
democracy in Central
America. He encourages
questioning the U.S. govern-
ment’s military action in Pa-
nama.

“The alleged justifications
(for the invasion) have no ba-
sis in fact or in law,” Boyle
said, adding that the national
media has vastly ignored the
implications on international
law of the U.S. invasion.

“The news media dropped
the ball on this one,” Boyle
said.

Boyle also spoke strongly
against U.S. action in all of
Central America and the Car-
ibbean, suggesting that the
U.S. should imitate the Soviet
Union’s example of pere-
stroika and glasnost in Eastern
Europe.

Boyle argued that the Un-
ited State’s December inva-
sion of Panama was unmiti-
gated and violated the United
Nations Charter and the Orga-
nization of American States
Charter, but was not unprece-
dented.

“(Panama) was one man-
ifestation of a resurgence in
U.S. intervention ... and I
suspect it will not be the last,”
he said.

Deposed Panamanian dic-
tator Manuel Noriega, cur-
rently being held in a Miami
jail awaiting a hearing on
Thursday, is a prisoner of
war, Boyle said, and is being
deprived of his POW rights by
the Bush administration.

Boyle also emphasized that
Noriega was employed at one
time by the CIA.

“The U.S. government
was perfectly happy to see a
CIA agent running (Panama)
regardless of the absence of
democracy in the country,”
he added.

Boyle also said he saw indi-
cations that Noriega’s drug
trafficking activities were
supported by the U.S. govern-
ment for some time.

“Noriega was simply doing
what top U.S. government of-
ficials ... wanted him to

do,” he said.

THE CHAMPAIGN-URBANA NEWS-GAZETTE

Wednesday, February 7, 1990

Ul prof: Panama attack’s aim
was Noriega, not democracy

By MICHAEL GRAY
News-Gazette Staff Writer

The recent invasion of Panama
by the United States had nothing
to do with restoring democracy to
that country, according to Uni-
versity of Illinois law professor
Francis Boyle.

And President Bush trampled a
plethora of international laws by
invading the Central American
country, Boyle told a crowd of
several hundred students and fac-
ulty Tuesday at Gregory Hall on
the UI campus.

Boyle’s lecture, “The U.S. Inva-
sion of Panama: Implications of
International Law,” was spon-'‘
sored by the People’s Alliance on
Central America.

The real purpose of the inva-
sion — largely unreported by the
national news media, according
to Boyle — was simply to topple
Panamanian dictator Manuel Nor-
iega.

Noriega had to go, Boyle
claimed, because he had ceased to
help America fund the Contras in
Nicaragua with money he re-
ceived from drug sales.

- ‘Once Noriega decided to dis-
sent from the party line,” Boyle
said, “he was treated like any oth-
er rogue agent — terminate with
extreme prejudice.”

BUT BOYLE AIMED his most
biting criticism at the reasons cit-
ed by the Bush administration for
the invasion.

The administration justified the
invasion as necessary to restore
democracy, to protect the Panama
Canal and American citizens and

‘Panama is simply an example of the
resurgence of U.S. military intervention in
Central America and the Caribbean — and |
don't think it will be the last time.’

— Francis Boyle, Ul law. professor

to seize Noriega on drug traffick-
ing warrants, all reasons that
Boyle said had “no basis in law or
fact.”

“Panama is simply an example
of the resurgence of U.S. military
intervention in Central America
and the Caribbean — and I don’t
think it will be the last time,” he
said.
He said the invasion mangled
the charters of the United Na-
tions and Organization of Ameri-
can States, which forbid one state
from interfering in the affairs of
another by military force.

THE INVASION ALSO violated
the Third Geneva Convention of
1949 and the principles estab-
lished from the Nuremberg trials
of Nazis convicted of crimes
against humanity during World
War II, Boyle said.

“Noriega is a prisoner of war
under the Third Geneva Conven-

tion of 1949,” he said.

Boyle admitted he’s puzzled by
the “tortured logic” Bush is using
to justify the invasion.

“There’s been some 40 years of
trying to get the Soviet Army out
of Europe,” Boyle said.

“Now, to justify the invasion of

Panama, which isn’t as important
to us as Eastern Europe was to the
Soviets, Bush encouraged them to
invade Romania — clearly de-
mented. :

“Fortunately, the Soviets were
smart enough and principled
enough not to do it,” he said.

SEVERAL AUDIENCE members
supported Boyle’s views.

Marsha Baron, a UI professor of
philosophy, agreed with Boyle's
assertion that the national news
media didn’t make a vigorous at-
tempt to report the US. violations
of international law. .

“He certainly didn’t change my
mind,” Baron said. “I already had
that view.”

“I didn’t know some of the
things he discussed about inter-
national law — that was very
helpful,” she said.

Despite his criticism of Bush
and the invasion, Boyle down-
played his role as an alternative
source about the invasion and
US. policy.

“[’m just a professor,” he said.
“The first thing is to get the story
out to the people ... I’m just try-
ing to stimulate thought.”

THE CHAMPAIGN-URBANA NEWS-GAZETTE

Ul professors
differ on merits
of Panama action

By PETER ROONEY
News-Gazette Staff Writer a

President Bush’s decision to in-
vade Panama: drew sharp criti-
cism from a University of Illinois.
professor who teaches interna-
tional law, but some qualified sup-
port from a former U.S. ambassa-
dor to Nicaragua.

“I think it’s highly unfortu-
nate,” said UI law professor Fran-
cis Boyle, “that in an era where
we've seen the Soviet Union un-
der Mikhail Gorbachev repudiate
the use of force to settle interna-
tional disputes, that the United
States has done what we have pre-
viously condemned the Soviet
Union for doing. —

“The dissolution of Eastern Eu-
rope is something far more seri-
ous to (the Soviet Union) in geo-
political terms than Panama is to
us,” he added. “And the Soviet
Union sent no troops in. What we
need in the United States is some
perestroika and glasnost so our
leaders begin to keep up with the
times.”

But Mauricio Solaun, a Latin
American studies and sociology
professor who served as President
Carter’s ambassador to Nicaragua
from 1977 to 1979, said military
intervention is sometimes the
lesser of two evils.

“The principle of non-interven-
tion is based on the right of
self-determination in a democrat-
ic doctrine,” he said.

“But when you have an armed
minority which is unwilling to
commit itself to election, in fact
they cancel elections because
they lost them, when you have a
government with groups of thugs
terrorizing people, well, certainly
that is not a democratic govern-
ment.

“So the way I view it, the princi-
ple of non-intervention is not an
absolute tradition,” he said. “In
some cases it can be revoked and
(intervention) can be a lesser
evil, although of course it has to
be invoked under only exception-
al circumstances.”

Panama met most standards for
military intervention, Solaun
said. Indeed, the U.S. government
should have intervened much

earlier, once it-made the decision
it wanted Noriega out, instead of
forcing economic hardship on the
whole country, he said.

“You either accept the govern-
ment and have normal relations,
or, if you think its so uncivilized,
then you have to act in a forceful
fashion — not wishy-washy inter-
fering, but intervening.”

BOYLE STRESSED he was not
defending Noriega in condemn-
ing the US. action. He said he
found it curious, though, the
United States would turn its back
on Noriega after supporting him
for so many years.

“Noriega was our man in Pana-
ma,” he said. “He is a known
agent of the CIA. He rose through
the ranks. When (Gen. Omar)
Torrijos overthrew a democratic
government in Panama, we didnt
say a word. Noriega worked hand
in glove with the CIA then. When
Torrijos died, he took over with
the full cooperation of the CIA.
When drug smuggling went on,
that was with support of the CIA.”

Boyle said the relationship be-
tween U.S. officials and Noriega
soured during the Reagan admin-
istration, when Noriega declined
to open up his borders for the
training of Contras.

“As best as I can tell, that led to
the break, where (Elliott)
Abrams, (George) Shultz, Reagan
and Bush decided he was just too
dangerous, and they had to get
rid of him,” Boyle said. “That
started it.”

BUT SOLAUN QUESTIONED
whether any specific Noriega ac-
tion had much to do with the U:S.
decision to invade Panama, given
Costa Rica has opposed the U‘S.-
backed Contras in Nicaragua
without incurring significant US.
criticism.

“I think it was the drug thing,”
Solaun said. “My opinion is not
that this man is a leftist or a seri-
ous Marxist. He is an opportunist;
he is a corrupt politician.”

Solaun said he believes the U.S.
invasion will have the support of
the Panamanian people because
of the Noriega regime's corrupt
nature and the deteriofation of
the Panamanian economy.

“I would say the majority of the
people feel it is the lesser evil to
solve this crisis,” he said.

. University of Illinois at Urbana-Champaign

February 24, 1987

Memorandum
To: The Faculty a
From: Francis Boyle - A

Tuesday, February 24, 1987 The Daily Illini Pace 15

Hay Oui of order

Evidently, the dean of the University’s College of Law tary procedure. —
has little respect for freedom of expression and the ex- It is shocking to find that, of all people, the dean of th

change of divergent views—not to mention for parliamen- _— College of Law, whichis supposed to be a training grour
tary procedure. | for students in presenting arguments and respecting rule:

Law Dean Peter Hay interrupted Monday afternoon a can so easily impede the free exchange of ideas and s
law faculty meeting presentation by Francis Boyle, profes- _—_glibly flout parliamentary procedure.
sor of law, in which Boyle was to move that the University The law faculty meeting has been rescheduled fo
and its law school withdraw their Sponsorship of anappear- _ March 2 at noon. However, Boyle’s motion has been de
ance by Attorney General Edwin Meese at a Symposium on leted from the agenda. |

the Constitution in March. Boyle says he feels the item is stil] pending. The Dai!
While Boyle was still speaking, Hay, who was chairing Illini editorial board agrees. His motion was never vote
the meeting, moved to adjourn and left the room, accompa- upon; no time was even allowed for anyone to second it. I.
nied by most of those in attendance. His motion to adjourn fact, it was never even discussed. This constitutes outrigh
was never seconded. . censorship of Boyle’s ideas. .
Whatever the law faculty’s feelings toward Boyle’s If the law faculty cares at all about preserving consit:

position, the man has the right to be heard. Hay’sbehavior, tional liberties. its members should demand that Boyle

as well as that of several professors at the meeting, was motion be reinstated in the agenda. If they do not, they ar
_ Inexcusably rude. It was also a flagrant violation of Boyle’s calling into question their qualifications to teach futur
right to speak and was at direct variance with parliamen- _ lawyers.

Thucydides, Book Five, The Melian Dialogue:

; . iF
Atnenians--—-

eee - Do not be led astray bv
a false sense of honour — a thing which often brings men to ruin
when they are faced with an obvious danger that somehow aHects
their pride, For in many cases men have sail been able to see the
dangers ahead of them, but this thing called dishonour; this word,
by its own force of seduction, has drawn them into 2 state where
they have surrendered to an idea, while in fact they have fallen
voluntarily into irrevocable disaster, in dishonour that is al] the
more distonourable because it has come to them from their own
folly cracker than their mustortune. You, if vou take the night view

will be careful to avoid this, .,, +7 7

. ’. 7
 OESUE SS ee ee

Saturday, February 14, 1987 THE CHAMPAIGN-URBANA NEWS.GAZBTTP

By J. PHILIP BLOOMER
News-Gazette Staff Writer ,
US. Attorney General Edwin Meese’s visit to
the University of Illinois is not a welcome devel-
opment in some parts of the campus community.
Longtime campus activists who include two UI
faculty members and the head of a campus '‘min-

-Meese's planned visit to UI draws

istry aré organizing protests of Meese’s sched- | &

uled appearance at a March 6-7 celebration of
the 200th anniversary of the US. Constitution
and of the 1787 Northwest Ordinance.

“Our position is not that he doesn’t have a
perfect right to speak here, but under no cir-
cumstances should the university have asked
him as their guest in honor of the U.S. Constitu-
tion,” said UI College of Law Professor Francis
Boyle. : :

“We're pretty appalled that thé UI is willing to
lend its good name to whatever cockamamie
things he wants to say,” Boyle said.

Boyle is trying to gain support for the law
college to withdraw its sponsorship of Meese.
Belden Fields, an associate professor of political
science, and the Rev. James Holiman of the IIli-
nois Disciples Foundation are helping organize
other forms of opposition among liberal groups
on campus, Boyle said. .

FRANCIS BOYLE EDWIN MEESE

_MEESE IS ONE OF a Slate of distinguished

visitors expected to take part in a symposium
Sponsored by the UI, the UI College of Law and
the Illinois State Bar Association.

_ Former Attorney General Elliot Richardson, a
victim of former President Richard Nixon’s infa-
mous “Saturday Night Massacre,” and U.S. Cotrt
of Appeals Judge Abner Mikva ate also members
of the symposium, which has “constitutional in-
terpretation” as its general theme, said law Dean
Peter Hay.

protests

Hay said the three were chosen for the broad
spectrum of opinions they represent on the is-
sue. |

Meese, who has come under fire for Suggest-
ing that U.S. Supreme Court decisions are case-
specific and not binding on other sectors of
government, maintains that the Constitution
Should be interpreted according to the original
intent of the franiers.

Mikva advocates the “living document” point
of view, which says the Constitution requires
adaptation to a changing environment.

And Richardson, Hay said, was chosen for hi:
more middle-of-the-road approach.

BOYLE SAID HE WASN’T Opposed to the con-
servative viewpoint, but to Meese personally. He
said that Meese’s involvement in the Iran-Con.
tra affair, including his reported attempts to
impede the prosecution of people running guns
to the Nicaraguan Contras, is other evidence of
the attorney general’s disrespect for the laws of
the land.

“This is disrespectful to the Constitution,”
Boyle said. “It’s like having a conference to hon-
or the foundation of the state of Israél and invit-
ing Yasser Arafat to be the guest speaker.”

—— 0 EE he
Whittier
Law Review

PRESERVING THE RULE OF LAW IN THE
WAR AGAINST INTERNATIONAL TERRORISM

FRANCIS A. BOYLE

a eel
Reprinted from

VOLUME 8 1986 NUMBER 3
Copyright © 1986 by Whittier Law Review

PRESERVING THE RULE OF LAW
IN THE WAR AGAINST
INTERNATIONAL
TERRORISM

FRANCIS A. BOYLE*

Upon its ascent to power in January of 1981 the Reagan
administration forthrightly proclaimed its intention to replace
President Carter’s emphasis on “human rights” with a “war against
international terrorism” as the keystone of its foreign policy. The
former’s specious argument was that “terrorism” constituted the
ultimate denial of “human rights” and therefore, in a classic non-
sequiter, somehow justified renewed military and economic assistance
for the then repressive regimes in Argentina, Guatemala, Chile, and
the Philippines, as well as warranting the “destabilization” of Colonel
Qadhafi in Libya, among other such nefarious projects. This inversion
of priorities for the future conduct of American foreign policy was
perversely misguided and thus must eventually be repudiated by the
American people.

“Terrorism” is a vacuous and amorphous concept entirely devoid
of an accepted international legal meaning, let alone an objective
political referent. The standard cliche that one man’s “terrorist” is
another man’s “freedom fighter” is not just a clever obfuscation of
values. It indicates that the international community has yet to agree
upon a legal or political meaning for the term “terrorism.” Yet due to
the transnational character of “terrorist’’ violence, the establishment
of multinational consensus and international cooperation is the only
way that wanton attacks directed against innocent civilians around the
world can be adequately combatted.

* Francis A Boyle, Professor of Law, University of Illinois College of Law, Symposium on
International Terrorism, Whittier College School of Law, Apni 18, 1986. Copyright by Francis

A. Boyle. All nights reserved.

735

736 WHITTIER LAW REVIEW [Vol. 8

The pejorative and highly inflammatory term “terrorism” has
been used by the governments of the United States, Great Britain, the
Soviet Union, Israel, and South Africa, among others, to characterize
acts of violence ranging the spectrum of human and material
destructiveness from common crimes to so-called wars of national
liberation. One government’s invocation of a holy war against
international terrorism may constitute effective propaganda designed
to manipulate public opinion into supporting a foreign policy premised
on considerations such as Machiavellian power politics. But it cannot
serve as the basis for conducting a coherent and consistent global
foreign policy in a manner that protects and advances a state’s
legitimate national security interests in accordance with the
requirements of international law.

Despite these serious reservations about the practical utility of
employing the term “terrorism” and its numerous derivatives, I will
do so here even though that term obscures more than it clarifies. For
analytical purposes, I would prefer to talk about “transnational
violence perpetrated by non-state actors against the civilian population
for political reasons.” Nevertheless, for want of a better term, I will
use the words “terrorism” and “terrorists,” but only because they
have entered into popular acceptation, and always subject to the above
reservations and qualifications.

The Reagan administration has pursued a unilateralist anti-
terrorism policy that is essentially predicated upon the illegal threat
and use of U.S. military force in explicit and knowing violation of
article 2(4) of the United Nations Charter. Their preferred measures
include military retaliation and reprisal, pre-emptive and preventive
attacks, kidnapping suspected terrorists, hijacking aircraft in
international airspace, and apparently assassination and indiscriminate
bombings of civilian population centers. Predictably, the results have
proven to be quite negligible in terms of accomplishing their purported
objectives and most counterproductive for the purpose of maintaining
international peace and security. Witness the needless deaths of over
300 United States marines and diplomats in Lebanon as a direct result
of the Reagan administration’s illegal military intervention into that
country’s civil war in order to prop-up a supposedly pro-Western
regime that was imposed by the Israeli army. Both of the latter were
guilty of inflicting barbarous outrages upon the Palestinian and

Moslem peoples of Lebanon in gross violation of the four Geneva
Conventions of 1949.

1986] INTERNATIONAL LAW 737

The foremost proponents of such reprehensible counter-terrorism
policies have been Secretary of State George Shultz and his new Legal
Adviser Abraham Sofaer. One of the great ironies of the Reagan
administration has proven to be the fact that its Secretary of State has
consistently been far more bellicose than its Secretary of Defense,
Caspar Weinberger. Indeed, what little restraint that has so far been
demonstrated by the Reagan administration when it comes to the
illegal threat and use of military force has generally originated with
the Pentagon, not the State Department. Whenever Shultz has failed
to obtain his foreign policy objectives by means of diplomacy, his
Standard fallback position has been to call for the threat and use of
United States military force—whether in the Middle East, the Persian
Gulf, Central America and the Caribbean, or to combat international
terrorism. If the United States government and American citizens
have recently become special targets for attack by international
terrorist groups, this phenomenon is directly attributable to the
Reagan administration’s primary reliance upon the illegal threat and
use of military force as an ultimately self-defeating substitute for its
bankrupt foreign policies.

Shultz’s basic argument that the Reagan administration should
fight international terrorism by means of American sponsored
counter-terrorism has constituted a most pernicious assault upon the
United States government’s historical commitment to upholding the
rules of international law and promoting the integrity of the
international legal order. Just because some of the adversaries of the
United States might pursue patently illegal policies in their conduct of
foreign affairs provides absolutely no good reason why our
government should automatically do the exact same thing. The
United States of America has to analyze the equation of international
relations in light of both its own vital national interests and its own
Cherished national values.

In particular, America cannot abandon or pervert its national
values simply because its adversaries might not share them. Likewise,
America cannot ignore its vital national interest in preserving the rules
of international law and upholding the integrity of the international
legal order simply because our adversaries might not share that exact
same interest. If America mimics international terrorists, then
America gradually becomes like them and eventually becomes
indistinguishable from them in the eyes of our allies, friends, neutrals,
and, most tragically of all, ourselves.

738 WHITTIER LAW REVIEW [Vol. 8

In other words, the United States government will become just as
terroristic and Machiavellian in its conduct of both foreign affairs and
domestic policies as many of our international adversaries
undoubtedly are. Hence, the United States government must not
imitate international terrorists under any circumstances or for any
reason. They must not become the ones who dictate our foreign and

domestic policies to us by means of their own illegal and inhumane
behavior.

That being said, the crucial question then becomes how America
can proceed to grapple with the foreign and domestic problems
created by the phenomenon of international terrorism while at the
same time preserving its fundamental commitment to the rule of law
both at home and abroad. To begin with a preliminary observation
drawn from the perspective of someone who has taught criminal law
for the past eight years, it makes little practical sense to treat a
member of a so-called national liberation movement (e.g., PLO, IRA,
ANC, SWAPO, FALN) who has allegedly committed an act of
international terrorism as if he were a common criminal. A politically
motivated member of a so-called national liberation movement
possesses an internal normative valuc structure which is just as (if not
more) clearly defined and highly refined as that of the ordinary citizen,
let alone that of the common criminal. After all, ordinarily neither

one of the latter two types is routinely prepared to die for what he
believes in.

The real problem, therefore, is not that the alleged international
terrorist completely lacks values, but only that his values are
antithetical to those of his adversaries. If transnational “terrorists”
are presumed to have no values, then the most appropriate way to deal
with them is to treat them as outlaws and kill them whenever feasible.
If, on the other hand, transnational “terrorists” actually possess a firm
commitment to a rudimentary system of values, then the proper way
to deal with them is through the process of negotiation and
compromise. Negotiation is more likely to change their value
structure than destruction, which will simply reinforce it and
encourage another cycle of violence and counter-violence.

Moreover, the treatment of a self-styled national liberation fighter
as a common criminal would not serve the traditionally recognized
purposes behind the various systems of criminal justice administration
prevalent in most states of today’s world, and especially in the United
States of America. In the professional literature, these objectives are
typically said to include retribution, general or specific deterrence,

1986] INTERNATIONAL LAW 739

As demonstrated by the current situations in Northern Ireland,
South Africa, and the Middle East, the prolongation of this process
will inevitably destroy the set of procedural protections created by any
adequate system of criminal justice administration pursuant to the
basic requirement of “due process of law.” This will in tum redound
to the severe detriment of the civil rights and civil liberties of the entire
civilian populations in those territories. Treating self-styled national
liberation fighters as common criminals only subverts the rule of law
in the domestic political order and thus eventually undermines the
democratic forms of constitutional government that are so vitally
dependent upon it. Even here in the United States we have
experienced the Reagan administration’s unremitting attack upon the
integrity of our basic system for protecting civil rights and civil
liberties in the name of prosecuting its so-called war against
international terrorism.

A better approach to the problem of coping with the phenomenon
of international terrorism would be to take self-styled national
liberation fighters at their collective word, and therefore to treat them
as privileged combatants subject to the laws and customs of war (1.e.,
the 1907 Hague Regulations) and to the international laws of
humanitarian armed conflict (i.e., the four Geneva Conventions of
1949 and their two Additional Protocols of 1977). In other words,
they would be held to the same high standards of belligerent conduct
that are applicable to soldiers fighting in an international armed
conflict. Hence, when a self-styled national liberation fighter is
captured after attacking a legitimate military target, he would not be
punished, but instead treated analogously to a prisoner of war and
interned for the duration of the conflict. In Northern Ireland, the
Middle East, southern Africa, or Puerto Rico, the duration of such
internment would probably be for quite some time.

On the other hand, when 2 self-styled national liberation fighter is
captured after attacking innocent civilians, he would still be treated as
a prisoner of war, but would be prosecuted for the commission of war

740 WHITTIER LAW REVIEW [Vol. 8

crimes. If found guilty, he would be punished as a war criminal, not a
common criminal. Under well-recognized principles of international
law, the status of “war criminal” has traditionally warranted the
imposition of extremely severe penalties upon the perpetrator, up to
and including death. Furthermore, it is another black-letter rule of
customary international law that there exists what is called
“universality”’ of jurisdiction for any state member of the international
community to prosecute a war criminal without limitation of time and
without a protection against double-jeopardy.

According such strict but fair treatment to self-styled national
liberation fighters, who have violated the international laws of
humanitarian armed conflict, would bring home to themselves, their
movements and the world at large, the unique nature of the gravity
and heinousness of their crimes. In addition, to hold members of so-
called national liberation movements to the high standards of
international behavior applicable to soldiers would provide their
respective organizations with an enormous political incentive to
concentrate their violent attacks exclusively upon legitimate military
targets capable of defending themselves, much to the benefit of the
innocent civilian population. Conversely, obstinate persistence by the
concerned governments to treat members of so-called national
liberation movements as common criminals creates absolutely no
incentive for these organizations to distinguish attacks upon the
civilian population from those upon military targets. This is precisely
because their fighters will be punished as common criminals no matter
whom, what, or how they engage in military operations.

For the purpose of better promoting respect for the fundamental
human rights of their own citizenry, it makes far more sense for
concerned governments to treat self-styled national liberation fighters
analogously to soldiers than to common criminals. To the extent that
concerned governments refuse to do so for political reasons or
propaganda purposes, they must assume a considerable amount of
direct responsibility for the horrible violence that is undeniably
inflicted upon their civilian populations by so-called national
liberation movements. Nevertheless, the decision by these concerned
governments to continue attempting to criminalize their opponents by
means of branding them with the name of “international terrorists”
cannot as a matter of international law bind foreign governments to
endorse their misguided approach to these conflicts. Foreign
governments would be well advised to remain neutral in such national
liberation struggles by means of applying the international laws and

1986] INTERNATIONAL LAW 741

customs of warfare and of humanitarian armed conflict as basic policy
guidelines for the determination of their relations with the contending

governinents and movements in regard to the specific conflicts at
stake.

For example, just because the Thatcher government in England,
the Peres-Shamir government in Israel, and the Botha government in
South Africa have most obtusely continued to deal with the deplorable
situations in Northern Ireland, the Middle East and southern Africa,
respectively, in this ultimately self-defeating and callously inhumane
manner provides absolutely no good reason or justification for the
United States government to ratify their fatally flawed approaches and
thus to further compound those tragedies. For the Reagan
administration to have adopted the questionable position of these
foreign governments that their adversaries are nothing better than
“terrorists” and “criminals” illegally involves the United States
government in these conflicts by choosing sides in favor of the
government against its internal adversaries. The basic rules of
customary international law dictate non-intervention by third parties
in these struggles irrespective of whether they are denominated
international or non-international armed conflicts.

In all these armed str«ggles, the United States government is
under an obligation, at a minimum, to at least refrain from choosing
sides in favor of either party. By contrast, however, the Reagan
administration has abandoned all pretense of neutrality and has
endorsed the dubious premise of the concerned governments that these
self-styled national liberation movements are nothing other than gangs
of common criminals that are most properly dealt with as a simple
matter of domestic concern for their law enforcement authorities
alone. Whatever position one might take on the ultimate legitimacy of
these armed struggles, as a factual matter nothing could be further
from the truth.

This author is not alone in his professional judgment that
members of so-called national liberation movements should be held to
the same high standards of international belligerent conduct that are
imposed upon soldiers. For example, a prestigious Report by the
distinguished Committee cn Armed Conflict of the American Branch
of the International Law Association adopts a line of analysis similar
to the one presented above. Indeed, this particular approach to the
problem of combatting transnational violence perpetrated by members
of so-called national liberation movements against innocent civilians
has been generally endorsed by the international community in

742 WHITTIER LAW REVIEW [Vol. 8

Additional Protocol One of 1977 to the four Geneva Conventions of
1949. As of June 30, 1985, 62 states have signed Protocol One, and it
has been ratified by 19 states and acceded to by 32.

Although not absolutely perfect in all respects, the rules set forth
in Protocol One represent the best consensus of international opinion
possibly attainable under current circumstances over how the world
community should best deal with acts of violence committed by
members of so-called national liberation movements (NLMs) against
innocent civilians. In my professional judgment, the strongest
contribution the Reagan administration could possibly make toward
fighting its so-called war against international terrorism would be to
recommend that the United States Senate give its advice and consent
to the ratification of Geneva Protocol One. Somewhat paradoxically,
however, there have been several intimations emanating from the
White House that the Reagan administration will not even submit
Protocol One to the Senate for its advice and consent because the

treaty has in some unexplained and mysterious way created “loopholes
for terrorists.”

At this point in the analysis I should mention that Additional
Protocol One was negotiated on behalf of the United States
government by the late Richard R. Baxter, then Professor at the
Harvard Law School, who was later to become Judge of the
International Court of Justice. Professor Baxter was my teacher of
International Law and the Laws of War from 1974 to 1976. Those
who have criticized Additional Protocol One for somehow creating
“loopholes for terrorists” must overcome an almost irrebutable
presumption in favor of the integrity, competence, patriotism and
dedication of Professor Baxter when it came to advancing the cause of
international humanitarian law on behalf of the United States
government throughout his long and distinguished career.

Now the United States government has signed but not yet ratified
Additional Protocol One. According to the basic rule of customary
international law enunciated in article 18 of the 1969 Vienna
Convention on the Law of Treaties, the United States government is
under an obligation to refrain from acts which would defeat the object
and purpose of Protocol One until it has made clear whether or not it
intends to ratify the Protocol. Since this latter event has not yet
occurred, for the time being the United States government is obliged
to act in a manner not inconsistent with the terms of Protocol One,
and in any event it must scrupulously observe the four Geneva
Conventions of 1949, to which it is a party. In the most unfortunate

1986} INTERNATIONAL LAW 743

event that the President should someday officially decide not to
Support the ratification of Additional Protocol One, I would
nevertheless argue that its terms still represent the best consensus of
international opinion for dealing with the problem of transnational
violence perpetrated by members of national liberation movements
against the innocent civilian population. Hence, the United States
government should construe its provisions to enunciate general policy
guidelines to be applied in order to formulate its foreign policies
toward so-called national liberation struggles around the world.

According to the definition found in article 1(4) of Geneva
Protocol One, the aforementioned national liberation movements
claim they represent “peoples [who] are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination.” However, the
determination of whether or not this claim is true or false as a matter
of fact or law would be immaterial to the application of Additional
Protocol One and the four Geneva Conventions of 1949 to the
conflicts in Northern Ireland, the Middle East, southern Africa, etc.
According to article 7 of Protocol One, the application of the four
Geneva Conventions and Protocol One by the United States
government or any other state will not affect the legal status of the
parties to the conflict, nor the legal status of any territories in dispute.
In other words, the United States government could safely apply
Protocol One simply as a humanitarian measure designed to better
protect the innocent civilian populations in Northern Ireland, the
Middle East, and southern Africa without taking any position on who
is right or wrong in these conflicts. The adoption of such a neutral
stance by the United States government would be fully consistent with
its international legal obligation to refrain from taking sides in any of
these international armed conflicts.

Once it has been determined that the United States government
will apply the rules of Additional Protocol One to the conflicts in
Northern Ireland, the Middle East, and southern Africa, the IRA,
PLO, ANC, SWAPO, and others would be subjected to the full
panoply of rules for the humanitarian conduct of warfare set forth in
the four Geneva Conventions of 1949 and Protocol One. Thereunder,
the United States government would have an affirmative obligation
either to prosecute or to extradite any members of such movements
who are alleged to have committed “grave breaches” of the Geneva
Conventions and Protocol One. In other words, the obligation to
prosecute or extradite would apply to those self-styled freedom

7 WHITTIER LAW REVIEW [Vol. 8

fighters who have allegedly committed serious violations of the laws
and customs of warfare by perpetrating indiscriminate attacks upon
the civilian population. On the other hand, there would be no
obligation for the United States government to prosecute or extradite
national liberation fighters for committing attacks upon legitimate
military targets. For the sake of convenience, I will analyze the legal
consequences flowing from the latter case first.

For example, those national liberation fighters seeking refuge in
the United States who had conducted military Operations against
soldiers, convoys, barracks, armed policemen, or other legitimate
military targets would usually have committed no violations of the
laws and customs of warfare. Thus, such non-offending NLM
members could neither be tried by the United States government nor
extradited to the concerned foreign governments: without violating
United States obligations under the Geneva Conventions and
Additional Protocol One. Furthermore, under the 1967 Protocol to
the U.N. Convention Relating to the Status of Refugees of 1951 and
the United States Refugees Act of 1980, such non-offending NLM

combatants would typically be entitled to apply for political asylum
here in the United States.

Even if for some reason they did not qualify for political asylum,
such non-offending NLM combatants could not be extradited or
deported to a country seeking to put them on trial as common
criminals or terrorists. Article 33(1) of the U.N. Refugees Convention
and Protocol codified the basic right of customary international law
known by its French name as “non-refoulement” in the following
language: “No contracting state shall expel or return a refugee in any
manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.” Pursuant thereto, and according to the United States
Refugees Act of 1980, the United States Attorney General cannot
deport or return any alien to a country if the Attorney General
determines that such alien’s life or freedom would be threatened in |
such country on account of race, religion, nationality, membership in
a particular social group, or political opinion. The Attorney General
must withhold deportation of that alien even if he is in this country
illegally.

A totally different case would arise with respect to those NLM
combatants apprehended in the United States who have allegedly
violated the laws and customs of warfare by engaging in indiscriminate

1986] INTERNATIONAL LAW 745

attacks upon the civilian population. Under the four Geneva
Conventions of 1949 and Protocol One, the United States government
would be obligated either to extradite or to prosecute those alleged to
have committed grave breaches of the Geneva Conventions and
Protocol. Most regretfully, the United States Congress has never
enacted the implementing legislation required by the four Geneva
Conventions of 1949 in order to prosecute such war criminals.
Therefore, it would be constitutionally suspect as a violation of due
process of law for the United States government to prosecute an NLM
combatant found within its territorial jurisdiction who might have
allegedly committed violations of the laws and customs of warfare
abroad.

The correct solution to this problem is for Congress to enact the
implementing legislation already required by the four Geneva
Conventions of 1949 in order to provide for the prosecution of those
alleged to have committed “grave breaches” of the laws of
humanitarian armed conflict as specified therein. The ratification of
Additional Protocol One and the passage of the required
implementing legislation under the four Geneva Conventions and
Protocol One would give United States courts all the jurisdiction they
need under both international law and United States domestic law to
prosecute so-called national liberation fighters who might have
perpetrated acts of violence upon innocent civilians anywhere in the
world. In my professional opinion, these two steps that the Reagan
administration could readily undertake would constitute an eminently
fair, reasonable and effective means for combatting international
terrorism in a manner that would advance the United States
government’s historical commitment to the rule of law both at home
and abroad.

lle / begt nae 4
The Daily Illini Monday, May 11, 1987

All citizens must challenge
the Reagan administration

by Francis Boyle

Since January of 1981, the people
of the world have witnessed a gov-
ernment in the United States that
demonstrates little, if any, respect
for fundamental considerations of
international law and organiza-
tions, let alone appreciation of the
requirements for maintaining in-
ternational peace and security.

What we have watched instead
is a comprehensive and malicious
assault upon the integrity of the in-
ternational legal order by a group
of men and women who are thor-
oughly Machiavellian in their
perception of international rela-
tions and in their conduct of both
foreign policy and domestic affairs.

This is not simply a question of
us giving or withholding the benefit
of the doubt when it comes to com-
plicated matters of foreign affairs
and defense policies to a U.S. gov-
ernment charged with the security
of both its own citizens and those of
its allies in Europe, the Western
Hemisphere and the Pacific.
Rather, the Reagan administra-
tion’s foreign policy represents
gross deviation from those basic
rules of international deportment
and civilized behavior that the U.S.
government has traditionally play-
ed the pioneer role in promoting for
the entire world community.

Even more seriously, as now ful-
ly documented by the Tower Com-
mission report, specific compo-
nents of the Reagan administra-
tion’s foreign policy have consti-
tuted ongoing criminal activity
under well-recognized principles of
both international law and U.S.
domestic law.

In direct reaction to the Reagan
administration’s wanton attack
upon the international and domes-
tic legal orders, large numbers of
American citizens have engaged in
various forms of nonviolent civil re-
sistance activities to protest
against distinct elements of the
Reagan administration’s foreign
and domestic policies. It is prob-
ably the case that on a day-in day-
out basis there are tens of
thousands of people in the United
States who are either planning, pre-
paring, committed to or actively
participating in nonviolent civil re-
sistance activities against some
aspect of the Reagan administra-
tion’s policies.

In the opinion of this author,
these activities represent a positive
development for the future role of
democratic government in the Un-
ited States with its historical com-
mitment to the rule of law both at
home and abroad. Unfortunately,
however, these legitimate citizen
protests have been suppressed by
means of numerous arrests and
prosecutions by federal, state and
local government authorities
around the country. Furthermore,
many individuals involved in these
nonviolent protests have been pro-
secuted, convicted and sentenced
in a particularly harsh and vindic-
tive manner in violation of their
basic constitutional rights. As a for-
mer U.S. Attorney General Ram-
sey Clark has said: ‘Our jails are
filling up with saints!’’

The gist of the Reagan adminis-
tration’s defense for its generally
lawless behavior both at home and
abroad has been that since the
adversaries of the United States
oftentimes engage in conduct that
is completely lawless, thoroughly
reprehensible and occasionally
barbaric, the U.S. government has
both the right and the duty to do the
exact same thing.

Nothing could or should be furth-
er from the truth. Just because
some of the adversaries of the Un-
ited States might pursue patently
illegal policies in their conduct of
international relations provides
absolutely no good reason why our
government should automatically
do the exact same thing. The United
States has to analyze the equation
of international relations in light of
both its own vital national security
interests and its own cherished
national values.

In particular, America cannot
abandon or pervert its national
values simply because its adver-
saries might not share them. Like-
wise, America cannot ignore its vit-
al national interest in preserving
the rules of international law and
upholding the integrity of the inter-
national legal order simply be-
cause our adversaries might not
share that exact same interest.

If America mimics our interna-
tional adversaries, then America
gradually becomes like them and
eventually becomes indistinguish-
able from them in the eyes of our
allies, friends, neutrals and most
tragically of all, ourselves. In other
words, the U.S. government could

become Just as terroristic and
Machiavellian in its conduct of both
foreign affairs and domestic poli-
cies as many of our international
adversaries undoubtedly are.
Hence, contrary to the fulminations
of the Reagan administration, the
American people must not allow
the U.S. government to imitate our
international adversaries under
any circumstances or for any
reason. Our adversaries must not
become the ones who dictate our
foreign and domestic policies to us
by means of their own illegal and
inhumane behavior.

This author once received an un-
solicited telephone call from a
woman who, in an unnecessarily
self-deprecating tone of voice, iden-
tified herself as an ordinary mid-
dle-class, middle-aged housewife
living in a typical suburb near De-
nver, Colo., wanting to discuss an
important matter. She and a group
of similarly situated friends who
were concerned about the Reagan
administration’s offensive nuclear
weapons buildup had an appoint-
ment with the director of the Rocky
Flats nuclear arsenal; and at that
time they planned to place him
under citizen’s arrest in his own
office for the commission of crimes
against international law!

Boyle is a University professor
of law and the author of
“World Politics and
Intemational Law” and
“Defending Civil Resistance
Under International Law.”

Inquirer Staff Writer

——

NORTHAMPTON, Mass. — It seemed a perfect
Scene from the ’60s: Triumphant defendants,
their fists clenched skyward. Blue-jean-clad sup-
porters, their placards now discarded. Cars honk-
ing. Bullhorn chanting. And the defeated? No
less a mighty force than the U.S. government.

But Wednesday afternoon in Northampton was
definitely an event of the 80s. Led by 19-year-old
Amy Carter and 50-year-old Abbie Hoffman — a
celebrity duo that bridged the two incongruous
decades — 15 defendants were acquitted of mis- ,
demeanor charges arising from a protest in No-
vember against recruitment by the Central Intel- |

ligence Agency at the: University of.
Massachusetts at Amherst. .

_ The defendants declared that their civil dis-.
obedience and success, though reminiscent of
the past, held the greatest import for the future.
“This is just the beginning!” Hoffman crowed.

Those involved in today’s burgeoning activism
enthusiastically agree.

Whether the issue is the CIA or South Africa,
nuclear arms or nuclear plants, the people doing
the demonstrating and the lawyers defending |
them in court say the highly publicized Carter-
Hoffman victory will breathe new life and power |
into their causes. !

“It legitimizes dissent, and it legitimizes pro- |
test,” said Cambridge, Mass., lawyer Lee Gold-
Stein, who does much work in these sorts of
cases. - ~ . “a

“I think it's a tremendous inspiration for peo-
ple,” said Marc Kenan, a U-Mass graduate student
who helped coordinate the defense for the North-
ampton case, dubbed the “Put the CIA on Trial”
project. ;

The impact is already being felt, according to
organizers of a national rally planned for next
weekend in Washington.

The Mobilization for Justice & Peace in Central
America and Southern Africa will
call attention to the “covert and ille-
gal actions” of the CIA and USS. gov-
ernment in those two regions of the
world, its sponsors say. Tens of thou-

Sands of people are expected to
gather Saturday on the Washington
Mall.

The following Monday, hundreds
of’ protesters will move to Langley,
Va., where they will attempt to block
the entrance roads to the CIA head-
quarters there.

|

Ned Greenberg, one of the organiz-
ers of the Washington demonstra-
tion, said the Carter-Hoffman case
was sparking “a lot of interest. It’s
prominent in everyone’s mind.”

More than 1,000 busloads of people
are expected from throughout the
country, Greenberg said, including
50 from the Philadelphia area. A 17-
car train has been reserved for dem-
onstrators from the Boston area. And.
more than 300 people are going from
western Massachusetts, where the
Carter-Hoffman trial was held.

lctivists bu
vem ACQUIttal

Sunday, April 19, 1987” The Philadelphia Inquirer
—$—$—$—$ $e iaceipiiia inquirer

yed by

Local organizer Lisa Bohne said.
“A lot of people were sort of on the
edge. This has pushed them over.
Everyone’s ecstatic.”

A major reason for the jubilation is
the way that the former President's |
daughter and her compatriots won |
their case. ~

The defendants, most of them stu-'
dents at area colleges, were among 60
people arrested after an hours-long
occupation of a building at the cam-
pus on Nov. 24. Those in court last
week included 12 charged with tres-
passing and three, including Carter,’
who were charged with disorderly:
conduct after they linked arms and
satin front of buses that would trans-
port those arrested. ¢

The facts were not in dispute. In-
Stead, the students argued a “neces-
sity defense.” This defense contends
that individuals may commit a lesser
crime to prevent a larger one — in
this case, what the students called
the CIA’s covert work to overthrow
the government in Nicaragua.

Activists are increasingly embrac-
ing this or parallel defenses, such as
“clear and present danger,” a classic
example of which is the person who
breaks into a burning building to
alert and rescue the people inside.

They contend that their nonvio-
lent protests are, in fact, upholding
the law, both national and interna-
tional. It is the other side that should
be branded criminal, they say.

‘Not everyone, particularly judges,

buys this reasoning. In one of the
first cases of its kind this decade, an
anti-nuclear protester arrested as he
prayed on a missile test site was
sentenced to a year in a federal peni-
tentiary.

And in reaction to the verdict
Wednesday, U-Mass chancellor Jo-
seph Duffey was quoted in a North-
ampton newspaper as saying it
“could leave the university and
other institutions vulnerable to stu-
dents and others who are moved bya
higher moral authority.”

e

Although the record is spasmodic
from state to state, the win-loss ratio
in cases where such defenses are
used has improved steadily in recent
years. In 1985, protesters from a Chi-
cago rally against nuclear weapons
and apartheid used tHe necessity de-
fense and were acquitted.

And that year in Vermont, a group
of defendants known as the “Winoo-
Ski 44” also was found not guilty.
They had been charged with occupy-
ing Sen. Robert Stafford’s Winooski
office to protest his Support of the

administration’s policy in Central
America.

“Most states have a defense of this
kind, either by statute or through
case law,” said Andy Lichterman, a
lawyer with the Western States Legal
Foundation in Oakland, Calif. “The
big ‘question is always how much
range will it be given and what kind
of testimony will you be permitted to

put on for the defense.” |

The federal courts present a
greater challenge, though. Lawyers
Say that the federal judiciary re-
mains hostile to necessity and re-
lated defenses, which makes protests
in the capital an especially risky un-:
dertaking. :

Washington lawyer Nina Kraut ex-|
pressed undisguised frustration.
“They take these kinds of cases so
Seriously here, you wouldn’t believe
it. It’s as if these people are the
Boston strangler.”

Still, surprises occur. Early this
month in Philadelphia, the trial of
two Catholic priests and two peace
activists accused of damaging gov-
ernment aircraft at the Willow
Grove Naval Air Station ended in a

hung jury despite U.S. District Judge »
Raymond J. Broderick’s instructions .

to the jury that an individual’s mo-
tives were no defense.

“I think what it’s doing is seeping
into the public consciousness,” said
Rich Archambault, a coordinator
with the Clamshell Alliance, an ac-
tivist group that opposes the Sea- .
brook nuclear plant in New Hamp-
shire. a

“It’s an exciting new trend,” said
Susan Davidoff with the Pledge of
Resistance, a group committed to
changing US. policy in Central

' America. “It shows that if we do get a

chance to explain our work to the
people ... many of them agree.”

One of the witnesses to testify in |
Northampton was Francis Boyle, an |
international law scholar who teach-
es at the University of Illinois and
who wrote the forthcoming book,
Defending Civil Resistance Under In-
ternational Law.

In a telephone interview last week,
Boyle said publicity from the acquit-
tals of Carter and Hoffman “will help
us win more.” ee

Boyle predicted that today’s activ-
ists, no matter what their: issues,
could coalesce into a broad-based
movement that would affect the 1988
election. “I think that this movement
could produce a new generation of
leaders that see the world in differ-
ent terms,” he said.

Attorney Thomas Lesser of North-
ampton, a member of the team of
lawyers that defended Carter and the
14 others, agreed. /

That is why he used a quote from

Robert F. Kennedy in his closing (o
arguments Wednesday: “You know 2
how each act of a person of con- &
Science sends out a ripple, and those ©

big ripple,” he said.

orm a current, and those
ge politics.”

’ currents chan

i)

“This was a

ie eee

ee Tr et pet ore
= ene cee. a TE Tey” ‘

SIRE pert ieee ht hel iain hed it Ria ache aie etal aiid ace tie be nde dd Aaa

~~ Se neem eer

ee ee

ee a ae WE Se oe)

ee ee te ee ee

ee ee ee ee ee

}

TOKYO, May 5 (AP) — Following are the
official texts of the statements on interna-
tional terrorism, nuclear accidents and polit-
ical issues that were adopted here today by

the leaders of seven industrial democracies:
L 16

Maw ( 8 f iy anne

We, the heads of state or government of
seven major democracies and the represent-
atives of the European Community, assem-
bled here in Tokyo, strongly reaffirm our
condemnation of international terrorism in

“ullits Toriis, of tts accomplices and of those,
including governments, who sponsor or sup-

port it. We abhor the increase in the level of
such terrorism since our last meeting, and in
particular its blatant and cynical use as an
instrument of government policy. Terrorism
has no justification. It spreads only by the use
of contemptible means, ignoring the values
of human life, freedom and dignity. It must
be fought relentlessly and without .compro-
mise.

- Recognizing that the continuing fight
against terrorism is a task which the inter-

"national community as a whole has to under-

take, we pledge ourselves to make maximum

efforts to fight against the scourge. Terror-

ism must be fought effectively through deter-

ed, tenacious, discreet and patient action
combining nal ° ures with interna-

tional cooperation. Therefore, we urge all
like-minded natidns to collaborate with us, .

rticularly in such international fora as the
Unit ations, the International Civil Avia-
tion Organization and the International Mari-

“time Organization, drawing on their exper-

———

tise to improve and extend countermeasures
against terrorism and those who sponsor or
support it. hit oe y

——We, the heads of state or government,

agree to intensify the exchange of informa-
tion in relevant fora on threats and potential
threats emanating from terrorist activities
and those who support and sponsor them, and

_ on ways to prevent them.

We specify the following as measures open
to ary government. concerned to deny to
international terrorists the opportunity and

‘AMG EM Dp: ct? SA ane
ao --
PO ee a tern teagan ins

ae

74 at J t $ + peat Sot a”

—_

Texts of the Statements Ador

the means to carry out their aims, and to
identify and deter those who perpetrate such
terrorism. We have decided to apply these
measures within the framework of interna-
tional law and in our own jurisdictions in re-

spect of any state which is clearly involved in
ring or supporting international ter-

Spo a tet reomds
TORK andl lo peartiontay of Libya, until such

timé as the state concerned abandons its
complicity in, or support for, such terrorism.
These measures are:

@Refusal to export arms to states which
sponsor or support terrorism.

@Strict limits on the size of the diplomatic
and C sions and other official
bodies abroad of states which engage in such
activities, control of travel of members of
such missions and bodies, and, where appro-
priate, radical reductions in, or even the clo-
sure of, such missions and bodies.

qDenial of entry to all persons. including
diplomatic personnel, who have been ex-
pélled or excluded from one of our states on®
suspicion of involvement in international ter-
rorism or who have been convicted of such a
terrorist offense.

Improved extradition procedures within
due process of domestic law for bringing to
trial those who have perpetrated such acts of
terrorism.

Stricter immigration and visa _require-
menits and procedures in respect of nationals
of States which sponsor or support terrorism.

@The closest possible bilateral and multi-
lateral coopération between police and se—

curity organizations and other relevant au-_

fhorities in the fight against terrorism.

"Efforts in International Bodies

Each of us is committed to work in the ap-
propriate international bodies to which we
belong to insure that similar measures are
accepted and acted upon by as many other
governments as possible.

We will maintain close cooperation in fur-
thering the objectives of this statement and
in considering further measures. We agree to
make the 1978 Bonn Declaration more effec-
tive in dealing with all forms of terrorism af-
fecting civil zviation. We are ready to pro-
mote bilaterally and multilaterally further

AM © Be Ne Se ee ee ae pene tees Prd
ME

-——--—

—_——

ted by Leaders of 7 Industrial Democracies

actions to be taken in international organiza-
tions or fora competent to fight against inter-
national terrorism in any of its forms.

Nuclear Accidents

We, the heads of state or government of
seven major industrial nations and repre-
sentatives of the European Community, have
discussed the implications of the accident at
the€hernoby! nuclear power station. We ex-
press our deep sympathy for those affected.

e remain ready to extend aSsistance, in
particular medical and technical, as and
when requested. Nuclear power is, and prop-
erly managed will continue to be, an increas-
ingly widely used source of energy. For each
country, the maintenance of safety and se-
curity is an international responsibility. And
each country engaged in nuclear power gen-
eration bears full responsibility for the safety

of the design, manufacture, operations and
maintenance of its installations.

Each of our countries needs exacting
standards. Each country, furthermore, is re-
sponsible for prompt provision of detailed
and complete information on nuclear emer-
gencies and accidents, in particular those
with potential transboundary consequences.

Each of our countries accepts that respon-
sibility, and we urge the government of the
Sovier = nin, Which did nat -do so in the case
8) ernobyl, to provide urgently such infor-
mation as our and other countries have re-
quested.

We note with satisfaction the Soviet
Union’s willingness to undertake discussions
this week with the Director General] of the In-
ternational Atomic Energy Agency, the
I.A.E.A. We expect that these discussions
will lead to the Soviet Union’s participation in
the desired post-accident analysis.

_ We welcome and encourage the work of the

1.A.E.A. in seeking to improve international
‘cooperation on the safety of nuclear installa-
tions, the handling of nuclear accidents and
their consequences, and the provision of
mutual emergency assistance.

Moving forward from the relevant I.A.E.A.
guidelixjes, we urge the early elaboration of
an integnational convention committing the

‘3

;

initiative, individual creativity and social
“justice are main sources of progress.

preserving and str
| part of that effort, to building a more stable

parties to report and exchange information in

the event of nuclear emergencies or acci-
dents.

This should be done with the least possible
delay.

Political Issues
We, the heads of state or government of

seven major industrial nations and the repre-
sentatives of the European Community, with

oots deep in the civilizations of Europe and
_Asia, have seized the opportunity of our,

“meeting at Tokyo to raise our sights not just
to the rest of this century but into the next as
well. We face the future with confidence and
determination, sharing common principles
and objectives and mindful of our strengths.

Our shared principles and objectives, reaf-
firmed at past summits, are bearing fruit.
Nations surrounding the Pacific are thriving
dynamically through free exchange, building
on their rich and varied heritages. The coun-
tries of Western Europe, the Community
members in particular, are flourishing by
raising their cooperation to new levels. The
countries of North America, enriched by
European and Asian cultures alike, are firm
in their commitment to the realization in
freedom of human potential. Le pr oe el
world, we see the powerful appeal of democ-

racy and growing recogniti a rsonal

The Search for a Safer World
More than ever, we have all to join our

energies in the search for a safer and health-
peaceful world. We believe that the close
partnership of Japan, North America and

Europe will make a significant contribution
toward this end. |

We reaffirm our common dedication to .

reservi nd strengthening p ; as

and constructive relationship between East
agd West. Each of us is ready to engage in
cooperation in fields of common interest.

Within existing alliances, each of us is jre-
sgyyed to PN wry ten and credible fe

i 4
fenge that ca ct freedom and deter ag-

:
~ hy an Pe aU Cae re Aye ly A GPe* BUTTE eT

gression while not threatening the security of
others.

We know that peace cannot be safeguarded
by military strength alone. Each of us iscom- .
mitted to addressing East-West differences ©
through high-level dialogue and negotiation.
To that end, each of us sypports balanced

Substantial and verifiable reductions in the ~

level of arms; measures to increase confi-
dence and reduce the risks of conflicts, and
the peaceful resolution of disputes.
Recalling the agreement between the
United States and the Soviet Union to acceler-
ate work at Geneva, we appreciate the
United States’ negotiating efforts and call on
the Soviet Union also to negotiate positively.
In addltian ta these effacte we shell work for
improved respect for the rights of individuals
throughout the world. hat eas at

We proclaim our conviction that in today’s
world, characterized by ever-increasing in-
terdependence, our countries cannot enjoy
lasting stability and prosperity without
stability and prosperity in the developing.
world and without the cooperation among us
which can achieve these aims. We pledge

ourselves afresh to fight against hunger, dis-
ease and poverty, so eveloping nations

can also play a full part in building a com-

mon, bright future.
We owe it to future generations to pass ona

healthy environment and a culture rich in
th spiritual and material-values. We are .

resolved to pursue effective international ac-
tion to eliminate the abuse of drugs. We pro-
claim our commitment to work together for a
world which respects human beings in the di-
versity of their talents, beliefs, cultures and

traditions. In such a world based upon peace,
freedom and democracy, the ideals of social
justice can be realized and employment op-

portunities can be available for all. We must
harness wisely the potential of science and

technology, and enhance the benefits through

cooperation and exchange. We have a solemn
responsibility so to educate the next genera-
tion as to endow them with the creativity
befitting the 21st century and to convey to -
them the value of living in_freedom_and

nai ty t
ignity.

eh YE 22 SEI 2 OA RET UP PRS Age er ay oe Pork Bee ee Boe Wee et Ce ee a ey ee