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U.S. Responsibility for Contra Operations Under International Law

by

Francis A. Boyle

Francis A. Boyle is Professor of International Law at the University

of Illinois in Champaign and author of the award winning World Politics

and International Law (Duke: 1985). He has been a prominent critic of the

Reagan administration's foreign affairs and defense policies since 1981.

(©) Copyright 1986 by Francis A. Boyle.

eo

The controversy surrounding the trial of Eugene Hasenfus for running
rifles and ammunition to the contra forces in Nicaragua raises the
question of the U.S. government's responsibility for the latter's
activities under international law. The Reagan administration has
attempted to dodge this issue by conducting a covert war by means of
Surrogates for the purpose of overthrowing the legitimate government of
Nicaragua. In the case of Mr. Hasenfus, the denial of U.S. governmental
responsibility for his activities renders him a mercenary and thus subject
to execution except for the fact that the Sandinista government has
abolished the death penalty. Under international law, he is entitled to a
trial to establish the fact that he had engaged in activities against the
security interests of Nicaragua, which is not in dispute. Under
Nicaraguan law, the Anti-Somocista Tribunals have been utilized for the
purpose of trying Nicaraguan citizens who have joined the contra forces
and then been captured in combat. Hasenfus is entitled to no better
treatment.

Whatever penalty is levied upon Mr. Hasenfus will be insignificant in
comparison to the enormity of the death and destruction inflicted by him
and other supporters and members of the contra forces upon the Nicaraguan
people. The Reagan administration has disavowed responsibility for some
of these surrogates in order to cling to the pretense that it has obeyed
Congressionally mandated restrictions on the conduct of the contra war.
Yet the Reagan administration has never paid any meaningful attention to
these restrictions, and has conducted this war in violation of an entire
series of U.S. statutes, treaties, principles of customary international

law, and two decisions by the International Court of Justice.

Nevertheless, however the Reagan administration wishes to characterize
this war for domestic political purposes, it cannot alter the relevant
standards of international law that apply to determine U.S. responsibility
for contra actions in Nicaragua. These standards do not depend upon
whether the contra war is characterized as covert or overt, or whether it
is conducted by the CIA, surrogate Nicaraguans and Americans, or even U.S.
military forces. Rather, responsibility turns on the question of whether
| the U.S. government actually exercises operational "control" over the
activities of the contras.

At the outset of the contra war in 1981, within the U.S. governmental
bureaucracy overall supervision and control for the contras were vested in
the so-called Core Group, presided over by Thomas Enders from State, and
consisting of Nestor Sanchez from Defense, Dewey Clarridge from CIA, and
Lt. Col. Oliver North from the White House's National Security Council
staff. From there the chain of command descended directly to the CIA
station chief in Tegucigalpa Honduras and the U.S. Ambassador to that
country, John Negroponte. The former exercised operational control over
the contra's Civilian Directorate, which had been created by the CIA.

The actual conduct of contra hostilities in Nicaragua was under the
command of a unified general staff, which was headed up by the same
Tegucigalpa CIA station chief and an unnamed U.S. military officer. [It
was quite clear that all these officials knew that the contras were
perpetrating large-scale atrocities against the civilian population of
Nicaragua, but did little to rectify this situation for quite some time. ,

Eventually, the counterproductive nature of these atrocities forced the

Cc

CIA to set up a new command and control system for the contra forces,

including the appointment of a new contra field commander in the Fall of

==

1983. But the atrocities did not stop then. Indeed, the deliberate
infliction of barbarous outrages upon the civilian population of Nicaragua
has always been the operational rationale behind the contra's terror war.
In light of the above evidence, it would only be fair to determine the
Reagan administration's responsibility for violations of the laws and
customs of war committed by the contra forces in accordance with the U.S.
government's own official interpretation of the rules of international law
governing such matters. These rules can be found in Department of the

Army Field Manual 27-10, The Law of Land Warfare (1956). Paragraph 498

thereof makes it clear that 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 therefore and liable to punishment.
Paragraph 501 provides that any military commander or civilian official is
responsible for the commission of international crimes "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." Paragraph 510 provides that the fact a
person who committed an act which constitutes an international crime acted
as head of state or as a responsible government official does not relieve
him from responsibility for his act.

Hence, according to the U.S. Army Field Manual, all U.S. government

"

officials who exercised any degree of "control" over the contra forces and
knew or should have known that the latter were committing violations of

the laws and customs of warfare and failed to do anything about it are

themselves personally responsible for the commission of international

crimes. This category of officialdom would include all of the
aforementioned individuals and their immediate superiors: to wit,
Secretaries of State Haig and Shultz, Secretary of Defense Weinberger,
Director of Central Intelligence Casey, National Security Advisers Allen,
Clark, MacFarlane and Poindexter, and presumably the President and Vice
President.

In response to these charges, the gist of the Reagan administration's
defense has been that since the adversaries of this country engage in
behavior that is completely lawless, thoroughly reprehensible and
frequently barbaric, the U.S. government has both the right and the duty
to do the exact same thing. But just because some of our adversaries
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 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 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 our adversaries, 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.

Forty years ago at Nuremberg, representatives of the U.S. government

participated in the prosecution and punishment of Nazi government

ellen

officials for committing some of the same types of international crimes
that members of the Reagan administration are today inflicting upon the
civilian population in Nicaragua. The American people must reaffirm our
commitment to the Nuremberg Principles by holding their government
officials fully accountable under international and U.S. domestic law for
the commission of such grievous international crimes. We must not permit
any aspect of our foreign affairs and defense policies to be conducted by
acknowledged “war criminals" according to the U.S. government's own

official definition of that term.

International Crimes Against Nicaragua
by
Francis A. Boyle
Professor of Law
University of Illinois at Urbana-Champaign

College of Law

504 East Pennsylvania Avenue

Champaign, Illinois 61820

(Phone: 217-333-7954)

July 30, 1986

Copyright (c) 1986 by Francis A. Boyle.

All Rights Reserved.

wale

Since January of 1981, the people of the world have witnessed a government in the
United States of America that demonstrates little if any respect for fundamental
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
policy and domestic affairs. This observation does not simply concern the question of
whether the American people should give or withhold the benefit of the doubt from a
U.S. government charged with the security of its own citizens and that of its allies
in Europe, the Western Hemisphere, and the Pacific. Rather, the Reagan
administration's foreign policy represents a grave deviation from those basic rules of
international deportment and civilized behavior that the United States government has
traditionally promoted for the entire world community.

Putting aside for present purposes Grenada, Lebanon, Libya, the Palestinian
people, South Africa, Namibia, and Angola, nowhere could the elementally lawless
nature of the Reagan administration's foreign policy be more manifest than in
Nicaragua. The Reagan administration's campaign of military aggression against the
Nicaraguan people by air, land, and sea has demonstrated its blatant disregard and
gross disrespect for the most sacred principles of the United Nations Charter, the
Charter of the Organization of American States, the Geneva Conventions of 1949, the
World Court's 1984 Interim Order of Protection on behalf of Nicaragua, as well as the
basic rules of customary international law set forth in the U.N. General Assembly's
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States
and the Protection of Their Independence and Sovereignty (1965), its Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation a
States in Accordance with the Charter of the United Nations (1970), and its Definition
of Aggression (1974), among others. There exists no justification in international

law, religious morality, or humanitarian philosophy for the Reagan administration's

=
vicious and brutal attack upon the Nicaraguan people in explicit violation of their
fundamental right to self-determination.
These conclusions of fact and law have now been authoritatively determined to the
satisfaction of the entire world community by the International Court of Justice in

its 27 June 1986 decision on the merits in the case of Nicaragua v. United States of

America. In the limited space available here no point would be served by attempting
to perform a detailed analysis of the Court's exhaustive decision. Suffice it to say
that the Court quite soundly dismissed the patently bogus contention by the Reagan

administration that its undeclared war against Nicaragua could somehow be justified as

an exercise of the right of collective self-defense on behalf of El Salvador. In
expectation of this result, the Reagan administration had already stalked out of the
World Court for the express purpose of avoiding a peaceful termination of its unjust
and inhumane war against Nicaragua under the Court's auspices. The Reagan
administration's contemptuous refusal to appear before the World Court in order to
defend itself on the merits against the legitimate complaints of the Nicaraguan
government quite clearly demonstrated that its policies were founded upon illegal
intervention and terrorist violence that could not be justified before the court of
world public opinion.

The only significant point of disagreement this author might have with the World

$$$ neantinin

Court's decision concerns its finding that the United States government is not fully
responsible for all the violations of the laws and customs of warfare committed by the
contra forces in Nicaragua. The Court carefully premised this result on the finding
that it had insufficient evidence to reach a definitive conclusion on such a delicate
matter. Nevertheless, the Court held it established that the United States government
largely financed, trained, equipped, armed, and organized the contras (paragraph
108). Somewhat questionably, in the Court's estimation it apparently remained to be

proven that the Reagan administration actually exercised operational control over the

contra forces.

a
In his dissenting opinion, Judge Schwebel relied quite extensively on Christopher

Dickey's With the Contras (1985) to establish several of his factual assertions. Some

of Dickey's other findings can likewise be usefully employed here for the purpose of
establishing the precise degree of the Reagan administration's responsibility for its
contra proxy war against Nicaragua. Shortly after taking office, on March 9, 1981
President Reagan issued a formal "presidential finding" that called for a stepped-up
covert action campaign in Central America (p. 104). On November 16, 1981, President
Reagan approved National Security Decision Directive 17, that called for the
expenditure of $19 million to build a 500-man force to carry out a ten—point covert
action program outlined and approved therein (p. 112). And in December of 1981, the
Reagan administration informed the House and Senate Intelligence Oversight Committees
that a major covert action program was warranted in Central America and indeed was
already underway (pp. 101, 112).

Within the U.S. governmental bureaucracy, overall supervision and control for the
contra war was vested in the so-called Core Group, presided over by Thomas 0. Enders,
assistant secretary of state for inter-American affairs, and consisting of Nestor
Sanchez, deputy assistant secretary of defense, Dewey Clarridge, Latin American
division chief of the CIA's Directorate for Operations, and Lt. Col. Oliver North,
from the staff of the National Security Council (pp. 102, 289). From there the chain
of command for the contra war descended directly to the CIA station chief in
Tegucigalpa Honduras and the U.S. Ambassador to that country, John Negroponte. The
former exercised "control" over the contra's civilian Directorate (p. 171), which had
been created by the CIA (pp. 156-58).

The actual conduct of contra hostilities in Nicaragua was under the command of a
“unified general staff," which was headed up by the same Tegucigalpa CIA station chief
and an unnamed U.S. military officer who was in charge of special U.S. training and
paramilitary activities in the area (p. 153). From Dickey's account it is also quite
clear that these officials knew that the contras were perpetrating large-scale

atrocities against the civilian population of Nicaragua, but did little if anything to

-4-
rectify the situation for quite some time. Eventually, the counterproductive nature
of these atrocities forced the CIA to set up a new command and control system for the
contra forces, including the appointment of a new contra field commander in the Fall
of 1983 (pp. 244-46). But the atrocities did not stop then. Indeed, the deliberate
infliction of barbarous outrages upon the civilian population of Nicaragua has always
been the operational rationale behind the contra's terror war.

For example, it was evident from a trip this author took to Nicaragua from
November 16-23, 1985 that the contra forces created by the CIA in Honduras constituted
nothing more than a mercenary band of cowards, terrorists and criminals who attacked
innocent Nicaraguan civilians--old men, women, children, religious people, health care
workers, etc. They did not have the courage to fight against the well-armed members
of the Nicaraguan army, but instead concentrated their military attacks upon clinics,
churches, farms, cooperatives, schools and other sources for the provision of basic
social, medical, educational and other humanitarian services to the Nicaraguan
people. Approximately 75% of all casualties resulting from the Reagan
administration's contra proxy war against Nicaragua have been civilians. The contras
wage a war of terror and aggression against the common people of Nicaragua in
violation of the laws and customs of warfare, the Geneva Conventions of 1949, and
every known principle of international humanitarian law.

Obviously, in the brief format prescribed here it would be impossible to summarize
all the indicia of U.S. operational control exercised over the contra forces that have
so far emerged into the public record. But even in the light of the minimal evidence
adduced above, it would only be fair to determine the Reagan administration's degree
of responsibility for violations of the laws and customs of war committed by the
contra forces in Nicaragua in accordance with the U.S. government's own official
interpretation of the rules of international law in such matters. These rules can be

found in Department of the Army Field Manual 27-10, The Law of Land Warfare (1956).

Paragraph 498 thereof makes it clear that 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 therefore and liable to punishment. Such offenses in connection
with war comprise crimes against peace, crimes against humanity, and war crimes. Here
the Manual basically incorporated the triumvirate of international crimes recognized
by the Nuremberg Charter, Judgment, and Principles.

According to paragraph 499, the term "war crime'' is the technical expression for a
violation of the law of war by any person or persons, military or civilian; every
violation of the law of war is a war crime. Paragraph 500 explicitly recognizes the
existence of inchoate crimes with respect to such grievous international crimes. It
provides that conspiracy, direct incitement, and attempts to commit, as well as
complicity in the commission of crimes against peace, crimes against humanity, and war
crimes are punishable. Thus Judge Schwebel erred in his conclusion that customary

ppindiies (pied crane
international law does not recognize the. inchoate crime of "incitement" to commit war
crimes when he tried to absolve the Reagan administration from criminal responsibility
for its advocation of war crimes to the contras (Appendix paragraph 219).

Paragraph 501 of the Manual recognizes the existence of and standard for vicarious
criminal responsibility on the part of commanders for acts of subordinates. Any

military commander or civilian official is responsible for the commission of

international crimes "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.'' (Emphasis added.) This language essentially incorporated
the test of vicarious criminal responsibility enunciated by the United States Supreme

Court in its seminal decision Application of Yamashita, 327 U.S. 1 (1946).

Field Manual paragraph 509 denies an alleged war criminal the defense of superior
orders, whether military or civil, unless the individual did not know and could not
reasonably have been expected to know that the act ordered was unlawful, though
superior orders may be considered in mitigation of punishment. Paragraph 510 provides

the fact that a person who committed an act which constitutes an international crime

=
acted as head of state or as a responsible government official does not relieve him
from responsibility for his act. On these as in other matters, the U.S. Army Field
Manual once again generally incorporated the terms of the Nuremberg Principles.

Hence, according to the U.S. Army Field Manual itself, all U.S. government
officials and military officers who exercised any degree of "control" over the contra
forces and knew or should have known that the latter were engaging in war crimes and
failed to do anything about it are themselves fully responsible for all violations of
the laws and customs of warfare committed by the contras in Nicaragua. This category
of officialdom who are vicariously responsible for contra atrocities would include all
of the aforementioned individuals and their immediate superiors: to wit, Secretaries
of State Haig and Shultz, Secretary of Defense Weinberger, Director of Central
Intelligence Casey, National Security Advisers Allen, Clark, MacFarlane and
Poindexter, and presumably the President himself. These Reagan administration
officials, among others, are personally responsible for commission and complicity in
the commission of crimes against peace, crimes against humanity and war crimes as
specified by the U.S. Army Field Manual and the Nuremberg Principles.

Over forty years ago representatives of the United States government participated
in the indictment, prosecution and punishment of Nazi government officials for
committing some of the same types of international crimes that members of the Reagan
administration are today inflicting upon the innocent people of Nicaragua. The
American people must remember and reaffirm the Nuremberg Principles by holding their
government officials fully accountable under international and U.S. domestic law for
the commission of such grievous international crimes. The American people cannot
permit any aspect of our foreign affairs and defense policies to be conducted by
acknowledged "war criminals' according to the U.S. government's own official
definition of that term.

Of course the major significance of the World Court's decision in favor of
Nicaragua will become evident in the pitched battle for U.S. public opinion over the

termination or escalation of the Reagan administration's undeclared war against that

= =
country. In direct reaction to the Reagan administration's wanton attack upon the
international legal order, large numbers of American citizens have engaged in various
forms of nonviolent civil disobedience to protest against what they believe to be
ongoing criminal activity under well-recognized principles of international and
domestic law. The Reagan administration's illegal military intervention into Central
America has probably been responsible for the greatest number and degree of nonviolent
civil disobedience activities in America today.

The most prominent of these groups is the self-styled Pledge of Resistance
Movement, whose 75,000 adherents have taken a pledge that in the event the Reagan
administration decides to invade Nicaragua by means of U.S. military forces, its
membership will launch a nationwide campaign of nonviolent civil disobedience
activities. The Pledge of Resistance Movement has already called out its members on
several occasions to demonstrate against the repeated votes by Congress to provide
military or so-called "humanitarian" assistance to the U.S.-controlled contra
mercenary bands. These activities consisted of sit-ins and other forms of nonviolent
protest conducted at federal military installations and the offices of U.S.
Congressional representatives and senators who voted in favor of such aid. In
significant part these courageous individuals have been motivated to protest by the
firm conviction that the Reagan administration's foreign policy toward Nicaragua
violates fundamental principles of international and U.S. domestic criminal law. The
World Court's unequivocal decision on the merits in favor of Nicaragua will reinforce
and strengthen their convictions, and thus increase the membership, commitment, and
activities of this and similar organizations around the country.

For example, in People v. Jarka, No. 002170, Circuit Court of Lake County,

Waukegan, Illinois, the defendants were protesting U.S. military intervention in
Central America and the Reagan administration's orfensive nuclear weapons buildup
before 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

bes
in 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.
Afterwards, some of the jurors were reported to have said that they were so "shocked"
by what the Reagan administration was doing in Nicaragua that they intended to protest

themselves.

In the Jarka case, the defendants were acquitted by invoking the traditional

common law defense known as "necessity," which was incorporated into the Illinois
Criminal Code. According to Illinois Revised Statutes, Chapter 38, Paragraph 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 Jarka

the greater public and private injury in Central America was successfully argued to be
crimes against peace, crimes against humanity, war crimes, grave breaches of the
Geneva Conventions, violations of the U.N. Charter, the 0.A.S. Charter, and the ICJ's
1984 Interim Order of Protection that the Reagan administration has committed on a
daily basis in Nicaragua. To this list of transgressed prohibitions will now be added
the World Court's 1986 decision on the merits for Nicaragua.

As a direct result of the Jarka acquittal, numerous attempts have since been made

around the entire country by defense attorneys seeking to invoke this case as a
precedent for the defense of other individuals who have engaged in acts of nonviolent
civil disobedience protesting against the Reagan administration's policies toward

Nicaragua, El Salvador, South African apartheid and nuclear weapons, inter alia.

There have now occurred several nonviolent civil disobedience cases in which criminal

charges have been dismissed, or the defendants acquitted, because of Jarka-type

defenses founded upon principles of international law. An extended series of
acquittals, dismissals or hung juries in such nonviolent civil disobedience cases will

send a strong message to the power elite of this country that the ordinary people of

=
America who comprise juries will no longer tolerate their government's pursuit of
patently illegal foreign policies that constitute ongoing criminal activity under

well-recognized principles of both international and domestic law.

With respect to Central America, the World Court's final decision in favor of
Nicaragua will play a critical role in the defense of Pledge of Resistance protestors
and in the expansion of their Movement. Today, the most useful act that American
citizens can perform at this critical juncture in the Reagan administration's
undeclared war against Nicaragua would be to sign the Pledge of Resistance. If a
million American citizens were to indicate that they are fully prepared to engage ina
massive campaign of nonviolent civil disobedience in the event of direct U.S. military
intervention against Nicaragua, this public show of support and solidarity could serve
as a significant deterrent to the implementation of such a criminal act by the Reagan
administration.

Despite conventional wisdom to the contrary, there currently exists a distinct
possibility of direct U.S. military intervention into Nicaragua. This is because of
the abject military ineffectiveness of the contra forces due to the vicious and brutal
mature of their terror war. The contras' potential sources for indigenous support
have long ago evaporated because of the inhumane cruelty they have perpetrated upon
the civilian population of Nicaragua. As evident to anyone who has recently visited
that country, there is no way the contras can ever depose the Sandinista government by
themselves, and the Reagan administration must be painfully well aware of this fact.

Hence, the $100 million military assistance package that Congress voted to provide
the contras in the Summer of 1986 is probably nothing more than a holding operation
designed by the Reagan administration to keep a surrogate military force in the field
until after the November 1986 elections. Direct U.S. military intervention before
then could jeopardize Republican control of the Senate, but afterwards there will
remain little external restraint upon the aggressive instincts of the Reagan
administration. Either it will have to negotiate in good faith with the Nicaraguan

government, or else launch a U.S. invasion of that country. A third option would be

wall One
to keep the contras alive until 1989 when the Reagan administration could conveniently
turn the entire problem over to its successor, but only at the horrendous cost of
inflicting thousands of more innocent Nicaraguan civilian casualties during the
interim. In any event, the Reagan administration will have to decide whether to fish
or cut bait on Nicaragua toward the end of 1986.

Make no mistake about it: Nicaragua will not be another Grenada, and it could be
far worse than Vietnam. The Nicaraguan people are fully prepared to fight and die for
their freedom and independence. They will not succumb to another round of U.S.
military intervention and imperialist domination without a fight to the death by their
entire society. Such a war would create thousands of American casualties, and tens of
thousands of Nicaraguan casualties. Yet it will be the common people of both America
and Nicaragua that will pay the price with their blood and treasure for the pursuit of
such a criminal course of conduct by the Reagan administration.

Such a war would fundamentally alter the nature of American society with its
constitutional system of government based upon an historical commitment to the rule of
law. As fully demonstrated by the current high degree of anti-Reagan civil
disobedience activities, the civil rights and civil liberties of all American citizens
would have to be drastically curtailed by the Reagan administration in order to
directly prosecute its unjust and inhumane war against Nicaragua in the face of even
greater public opposition. If the Reagan administration is allowed to escalate its
war against Nicaragua any further, the American people will forfeit any right to claim
political or moral leadership for the democratic peoples in Europe, the Western
Hemisphere and the Pacific. We will turn ourselves into the common enemies of
mankind, and in the process, we will destroy the nature of our own being. As
international lawyers, it is incumbent upon us to devise constructive strategies for
using the World Court's resounding condemnation of the Reagan administration's
policies toward Nicaragua in order to head off the further development of such a

monumental tragedy.

OO TE EE ————— ee

University of Illinois College of Law
at Urbana-Champaign 209 Law Building 217 333-0931
504 East Pennsylvania Avenue
Champaign, IL 61820
Pp gn ed dll
A a
MEMORANDUM sat? ,
a —s..
a
TO: Committee for Responsible Genetics -
FROM: Francis A. Boyle

SUBJECT: Revised Draft Implementing Legislation for the Biological
Weapons Convention

DATE: March 17, 1986

Pursuant to your request and suggestions, attached you will find
revised draft implementing legislation for the Biological Weapons
Convention of 1972. As you can see, the Bill basically follows the draft
legislation introduced by Congressman Peter Rodino im 1980 (H.R. 7977,
96th Cong., 2d Sess.). In addition to improvements in the language and

filling in lacunae, there have been five significant changes to the Rodino
legislation that you should be aware of.

First, along the lines of the British Biological Weapons Act of 1974,
I have increased the penalty to life in prison, and have increased the
fine to $10,000,000. The latter sum should serve as a significant
deterrent to any genetic engineering firm giving serious consideration to
getting involved with biological weapons.

Second, section 171(b) has been added to the Rodino legislation in
order to deal comprehensively with the problem of proliferation with
respect to biological weapons. This language is basically drawn from
article 3 of the Biological Weapons Convention and therefore can be

justified on those grounds.

Third, section 171l(c) is patterned upon a section of the British
Biological Weapons Act of 1974. This section makes it quite clear that a
U.S. Biological Weapons Act would apply to a governmental agency or
corporation or an individual acting in a governmental or corporate
capacity. In addition, it would hold governmental or corporate officers
guilty of an offense under the terms of the Act for acts of negligence
that were responsible for the production of biological weapons, etc. Once
again, I decided to include this subsection in order to specifically deal
with the problem presented by the potential for genetic engineering firms
to engage in the production of biological weapons.

Fourth, in section 173(a) I have vested jurisdiction in United States
district courts to entertain a suit brought by any "person" subject to the
jurisdiction of the United States to enjoin violations of the Act.
Obviously, we cannot expect the government to police itself, so I thought
it would be advisable to give private citizens and groups a right to go to
court and seek to prevent prohibited activity by the government or private
companies.

Fifth, in section 173(a)(2) I have given the district courts authority
to enjoin inchoate crimes incidental to prohibited conduct under the other
terms of the Act. Planning, preparation, incitement, solicitation,
attempt, aiding and abetting, or conspiracy to commit prohibited conduct
would be subject to an injunction at the request of a private citizen or
group. If passed into law this should be sufficient to deter anyone in
the government (or outside it) from going beyond the traditionally
recognized First Amendment right of free speech with respect to the policy
question of whether or not the United States government should remain a
party to the Biological Weapons Convention. This grant of authority
should prove to be useful in the event we have an indication that the
government is moving beyond the stage of simply discussing the pros and
cons of remaining a party to the Biological Weapons Convention. In my
opinion, we cannot and should not attempt to try to prohibit-this latter
type of activity. But we can certainly prohibit inchoate crimes that are
incidental to the substantive offense itself without running afoul of the
First Amendment protections for free speech.

Yours very truly,

1

etre FE et

Francis A. Boyle
Professor of Law

FAB/bw
encl.

Draft Biological Weapons Act of 1986
prepared by

Francis A. Boyle
Professor of Law
University of Illinois College of Law
504 E. Pennsylvania Avenue
Champaign, Illinois 61820

(Phone: 217-333-7954)

Biological Weapons Act of 1986

99th CONGRESS |

2d Session H.R.

—— —-

To implement the "Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction" by prohibiting the
development, production, stockpiling, transferring, acquisition,
retention, and possession of biological weapons, and for other

purposes.

— —~--——

IN THE HOUSE OF REPRESENTATIVES
Mr. X introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To implement the "Convention on the Pechihivina of the Development,
Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction" by prohibiting the
development, production, stockpiling, transferring, acquisition,
retention, and possession of biological weapons, and for other
purposes.

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled,
Section 1. Short Title.

This Act may be cited as the "Biological Weapons Act."

Section 2. Purpose.

The purpose of this Act is to fulfill the obligation of the United
States of America under article 4 of the 1972 Convention on the
Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction;
to wit -- "Each State Party to this Convention shall, in accordance with
its constitutional processes, take any necessary measures to prohibit and
prevent the development, production, stockpiling,. acquisition, or
retention of the agents, toxins, weapons, equipment and means of delivery
specified in article 1 of the Convention, within the territory of such
State, under its jurisdiction or under its control anywhere."

Section 3. Offenses.

(a) IN GENERAL. -- Title 18 of the United States Code is
amended by inserting after chapter 9 the following new
chapter:

"Chapter 10 - BIOLOGICAL AGENTS AND TOXINS.

"Sec.

"171. Agents, Toxins, Weapons, Equipment and Delivery Systems.

"172. Forfeiture and Destruction.

"173. Injunction.

"174. Definitions.

"Section 171. Agents, Toxins, Weapons, Equipment and Delivery Systems.

"(a) Any person, being a national of the United States or

otherwise under or within the jurisdiction or control of
the United States, who knowingly does develop, produce,

stockpile, transfer, acquire, retain, or possess any --

"(1) agent;

"(2) toxin;

"(b)

"(c)

'(3) weapon;

"(4) equipment; or

"(5) delivery system,

with intent to use or to threaten, cause, permit, or
facilitate its use for a prohibited purpose, shall be fined
not more than $10,000,000, or imprisoned for life, or both.
Any person, being a national of the United States or
otherwise under or within the jurisdiction or control of
the United States, who knowingly undertakes to transfer to
any recipient whatsoever, directly or indirectly, or in any
way to assist, encourage or induce any state or group of
states or international organizations to manufacture or
otherwise acquire, any agent, toxin, weapon, equipment or
delivery system for a prohibited purpose, shall be fined
not more than $10,000,000 or imprisoned for life, or both.
Where an offense under subsection (a) or subsection (b) of
this section is committed. by a governmental agency, or by a
body corporate, and is proved to have been committed with
the consent or connivance of, or to be attributable to any
negligence on the part of, any official, director, manager,
secretary or other similar officer of the governmental
agency, or body corporate, or any person who was purporting
to act in any such capacity, he as well as the governmental
agency or body corporate shall be guilty of that offense
and shall be liable to be proceeded against and punished

accordingly.

ction,

n of this sé
1 agency»

slatio
or loca

the Central

y statutes rule, OF

notwithstanding an

any —
equipme™

hibited purpose and the 4

ar

"(b)

"Section 173.

"(a)

"(b)

Injunction.

The United States district courts, in proceedings

instituted by the United States or by any person who is a

national of the United States or otherwise under or within

the jurisdiction or control of the United States, shall

have jurisdiction to enjoin-

a i ®

a2)

“3 )

the conduct prohibited by section 171 of this
chapter; or

planning, preparation, incitement, solicitation,
attempt, aiding and abetting, or conspiracy to commit
conduct prohibited by section 171 of this chapter; or
the development, production, stockpiling,
transferring, acquisition, retention, possession, or
endeavored development, production, stockpiling,
transferring, acquisition, retention or possession of
any agent or toxin of a type or in a quantity
primarily useful for a prohibited purpose, unless the
conduct concerning such agent or toxin is for a
purpose other than a prohibited purpose and the agent
or toxin is of a type and quantity reasonable for

that purpose.

Venue for any proceeding brought under the provisions of

this section shall lie in the judicial district where the

act complained of occurred or would occur or, treating the

act as an offense, shall be ascertained in the same manner

as venue for offenses as provided in sections 3237 and 3238

of this title.

"Section 174.

Definitions.

"(a) As used in this chapter, the term —-

“11>

“i 2)

a

"(4 )

"eS }

"(6)

‘agent' means any micro-organism or infectious
substance capable of causing harm;
'toxin" means, whatever its origin or method of
production -
"(A) any poisonous substance which can be produced
by a living organism; or
"(B) any poisonous isomer, homolog, or derivative of
such a substance;

‘weapon’ means any instrument used or usable for the
purpose of destroying, defeating or injuring any
person, enemy or opponent during an international or
non-international armed conflict, or during the
course of a rebellion, insurgency, civil war,
military intervention, or covert operation by means
of using or threatening to use an agent or a toxin;
‘equipment’ means any implement used in an operation
or activity, or everything except personnel, needed
for an operation or activity, related to an agent or
a toxin;

‘delivery system’ means any apparatus, equipment,
device, or means of delivery specifically designed to
deliver or disseminate an agent or a toxin, or any
vector;

‘harm’ means -

*, *

‘ "(A) death, disease or other biological malfunction
in a human, an animal, or a plant; or
"(B) deterioration of food, equipment, supplies, or
material of any type;
"(7) ‘prohibited purpose’ means causing or threatening to
cause -
"(A) death, injury, or loss to any person; or
"(B) injury or loss to any government; or
"(C) any use for hostile purposes, or in armed -
conflict, or that has no justification for
prophylactic, protective or other such peaceful
purposes};
"(8) ‘vector' means a living organism that transfers an
agent or toxin to a host; and
"(9) 'person' means any natural or legal person
whatsoever, including any individual acting ina
governmental or official capacity or pursuant to
governmental or official policy, and including any
Federal, state or local government or agency,
corporate body, or unincorporated organization.
(b) CLERICAL AMENDMENT. -- The table of chapters for part I of
title 18, United States Code, is amended by inserting after
the item for chapter 9 the following new item:

"10. Biological Agents and Toxins ... 1/71".

DOCUMENT 6430T

Working Draft

Revised 22 August 1986

THE OUTSTANDING CRISIS BETWEEN THE UNITED STATES AND LIBYA

OVER INTERNATIONAL TERRORISM

by
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Francis A. Boyle Ltt nat ¢ gow

Professor of Law
University of Illinois College of Law
504 E. Pennsylvania Avenue

Champaign, Illinois 61820 ESsernial So-uiptle

(Phone: 217-333-7954) f “Jes

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c Copyright 1986 by Francis A. Boyle. All rights reserved.

big. gh pr’ hy

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Preserving the Rule of Law in the! War Against International al

—

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 —— rs somehow justified the renewal of
military and economic assistance for the then repressive regimes in
Argentina, Guatemala, Chile, and the Philippines, as well as warranting
the "destabilization" of Colonel Khadafy 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 cliché 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."* For example, the U.N.

Ad Hoc Committee on International Terrorism could not even agree upon a
definition for the word "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
ee, f

"

.

%

The pejorative and highly inflammatory term "terrorism" has been used

adequately combatted.*

by the governments of the United States, Great Britain, the Soviet Union,

was

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 state's invocation
of a holy war against international terrorism may constitute effective
governmental 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.

For example, the Reagan administration was elected in part on the
claim that the Carter administration's general "softness" had been
responsible for an alleged increase of terrorist attacks against Americans
during the latter's tenure. Shortly after entering office Director of
Central Intelligence William Casey ordered the CIA to conduct a study on
international terrorism designed to document their unsubstantiated
campaign rhetoric. But when finally produced, the CIA study proved the
exact opposite conclusion--namely, that terrorist attacks against
Americans were on a decrease in the latter half of the 1970's. Not being
content with the truth, Casey ordered the CIA to change its definition of
"terrorism" in a manner that would substantiate the Reagan
administration's irresponsible claims. Whereupon the CIA broadened its
definition of "terrorism" and dutifully complied with Casey's ukase by
issuing a report claiming that terrorist attacks against Americans were on
the increase during the late 1970's.

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 ese: “transnational violence
perpetrated by non-state actors against sonbers-of 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

Vet4yPonses
retaliation and reprisal, pre-emptive and preventive attacks, kidnapping

/ United Nations Charter.*° Their preferred measures include military
suspected terrorists, hijacking aircraft in international airspace,
destabilization of governments, fomenting military coups, 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 U.S. 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 Palestinians and Moslem peoples of
Lebanon in gross violation of the Four Geneva Conventions of 1949.°

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

=6§6—-

Thus all civilian officials and military officers in the United
States government who either knew or should have known that the Reagan
administration intended to assassinate Khadafy are "war criminals"
according to the U.S. government's own definition of that term. The
American people cannot permit any aspect of our foreign affairs and
defense policies to be conducted by acknowledged "war criminals." They
must insist upon the impeachment, dismissal or resignation of all U.S.
government officials guilty of such war crimes.

This observation places the Reagan administration's so-called war
against international terrorism in a completely different light. As
mentioned before, the Reagan administration has been consistently
manipulating the whole concept of some need to fight a war against
international terrorism in order to put various bills through Congress
that would constitute serious infringements on the civil rights and civil
liberties of people here in the United States. Other legislative
proposals would purport to give the Reagan administration Congressional
authorization to engage in the threat and use of force in clearcut
violation of basic principles of international law as well as of the terms
of the United States Constitution and other provisions of U.S. domestic
law.

For example, the Reagan administration has long sought to repeal the
War Powers Act’°* precisely because it was specifically designed to
prevent Presidential abuses when it came to the threat and use of U.S.
military force in order to forestall the development of another Vietnam
War along the lines of the Gulf of Tonkin scenario. Thus, immediately
after the Libyan bombings, the Reagan administration attempted to amend

the War Powers Act out of existence by introducing a piece of legislation

ee ee

aif Fos

that would essentially exempt Presidential military action from the most
important requirements of the Act so long as it is purportedly designed to
combat international terrorism against the United States. One of the
co-sponsors of this legislation, Senator Dole, quite forthrightly admitted
that it would give the President the domestic legal authority to order the
assassination of any person, including a head of state or government, who
organizes, attempts, commits, procures, or supports the commission of an
act of terrorism against the United States. Presumably this would
constitute a Congressional license for Reagan to order the murder of
Khadafy, Hafez Assad of Syria, Ayatollah Ruhollah Khomeini of Iran, Daniel
Ortega of Nicaragua, Fidel Castro of Cuba, Saddam Hussein of Iraq and
apparently any other leader of a foreign state that the United States
government might have serious disagreements with so long as he or it are
alleged to support “international terrorism."

The outbreak of the First World War provides a very compelling
example of the principle at stake here. This conflagration started
because of a terrorist attack at Sarajevo by a Serbian nationalist against
Archduke Francis Ferdinand, who was heir-apparent to the throne of the
Austro-Hungarian empire. With the backing of Germany, Austria-Hungary
issued an ultimatum to Serbia, which in turn was Supported by Russia.
Eventually the world went to war and approximately 20 million people were
killed. At the 1919 Paris Peace Conference, however, the Allied Powers
put the responsibility for the outbreak of — squarely upon the
shoulders of the Central Powers by means of article 231 of the Treaty of
Versailles.

This experience with "international terrorism" seventy years ago

should have established the validity of the proposition to the

——— 0766U

Essays on World Politics and International Law

by

Francis Anthony Boyle

Professor of Law

University of Illinois College of Law
504 East Pennsylvania Avenue
Champaigny Illinois 61820

(Phone: 217-333-7954)
3 0766U

ACKNOWLEDGEMENTS

This book was written in honor of my international organizations

teacher, Louis Sohn:

"Blessed Are. The. Peacemakers
For They Shall. Be Called The Children of. Goca!

(Matthew 5:9)

Remarks in Honor of Louis Bb. Sohn
by
Francis A. Boyle

Washington College of Law

American University

October ili, i984

It is a great privilege for me to say a few words in honor of our
mutual teacher and mentor, Louis Sohn, before this conference of former
students, colleagues, and admirers for the presentation of his

1
festschrift. About 15 years ago I commenced my study of international

relations at the University of Chicago with the late Hans Morgenthau. AS
I am sure you know, it i8 a cardinal tenet of self-styled political

realists such as Morgenthau and his colleague George Kennan that

international law and organizations are essentially irrelevant to matters

of “high" international politics concerning conflicts between states over

matters of vital national interest.

“f= 07 64U

Morgenthau and Kennan carried this hypothesis one step further to
argue that those who actually espoused the establishment of World Peace
Through World law (1958), such as Grenville Clark and Louis Sohn: were
Naive, idealistic, and utopian. Even more seriously, they maintained,
such theories were in fact pernicious because if the statesmen of the
Western democracies and their respective public opinions ever came to
believe in them and to act accordingly, their necessarily altruistic

foreign policies would simply encourage aggression by the totalitarian

dictators of the communist bloc. In the opinion of political realists
such as Morgenthau and Kennan, it was crucial for U.S. statesmen to
understand that international relations consisted essentially of the
Machiavellian law of power politics where, in the words of Thucydides, the
strong do what they will and the weak suffer what they must. In this
so-called zero-sum game of international politics, the pursuit of
international law and organizations, let alone world government, would
ineluctably prove fatal to their proponents and ultimately for all mankind.
Although I was and still am enamored of the analytical brilliance of
Morgenthau, I could never accept his prescription of Machiavellian power
Politics as the legitimate basis for the proper conduct of international
relations, especially by the United States of America, nor his rejection
of world practical solution to the impending doom of
nuclear Armageddon. Nevertheless, at the time I did not possess the
intellectual apparatus and sophistication to develop an alternative
approach to understanding the dynamic relationship between international
law and politics. I therefore decided that it would be necessary to
cantinue my international studies at the Harvard Law School with none

other than the b@te-noire of Morgenthau's folklore -- Louis Sohn.
a 0766

Y took Louis! course on the United Nations Organization ten years ago
this Fall. There were many great teachers at the Harvard Law School, and
Louis was certainly one of them. There were likewise many great scholars
at the Harvard Law School, and Louis was undoubtedly one of the most
prolific members in the entire history of that faculty. And yet what set
Louis apart from all the rest of the great teachers and scholars at the
Harvard Law School was his grand vision of creating a future world order
based upon the rule of law. Louis! powerful conveyance of that vision toa
all his students was far more important than any of the substantive rules
of international law and organizations which he taught us. And I think I
speak for most of us when I say that much of the rest of my career has
been spent and will continue to be spent attempting to comprehenci,
Pparticularize, and effectuate, the ramifications of Louis' grand vision
when it comes to the relatively mundane aspects of day-to-day
international relations. We all write glosses on the magna_opera of Louis
Sonn .

Not surprisingly, Louis has lived to witness the conversion of his two
most formidable intellectual adversariesi Hans Morgenthau and George
Kennan. During a private seminar held at Harvard's Center for
International Affairs in 1978, Morgenthau explicitly repudiated
Machiavellian power politics in favor of international law, international
organizations and world government. And when I specifically asked him if
this meant he finally agreed with that same Louis Sohn whose theories he
had been castigating for the past twenty years, Morgenthau responded:
"Sohn and I might start from different principles, but we have arrived at

read
the same conclusion. "
~3~ 07 64U

About four years later, George Kennan reached the exact same
conclusion in an essay entitled On Nuclear War, published in the January

Pl, i982 issue of the New York Review of Books:

Nearly a quarter of a century ago Grenville Clark and Louis
8. Sohn put forward, in a monumental work entitled World Peace

Through World law, their ideas for a program of universal
disarmament and for a system of world law to replace the chaotic

and dangerous institution of unlimited national sovereignty upon

which international life was then and is now based.
To many of us ~~ and I think particularly those of us who
had been in the practice of diplomacy ~-- these ideas looked, at

the time, impractical, if not naive. Today, two decades later,
and in the Light of what has occurred in the interval, the logic

of them is more compelling. It is still too early for their

realization on a universal basis; but efforts to achieve the
limitation of sovereianty in favor of a system of international

law on a regional basis are another things and when men begin to

come seriously to grips with this possibility, as I think they
willy it is to the carefully thought-out and profoundly humane

ideas of Grenville Clark and Louis Sohn that they will have to
turn for inspiration and guidance.

So despite their innate genius, it took Morgenthau and Kennan more than
twenty years to realize the profound wisdom of Louis' grand vision.

It is one of the greatest of all tributes to Louis that these two
mortal intellectual enemies have come to subscribe to the Clark~-Sohn
Proposals, if only during the twilight of their careers. And perhaps we
as students of Louis can all take some small degree of satisfaction in
this vindication of our teacher's perspicuity. But I submit that in all
honor to Louis, we really cannot afford to do so.

For although the founders of modern Machiavellian power politics such
as Morgenthau and Kennan have changed their minds on this subject, most
tragically they have left in their wake an entire generation of American
foreign policy decision-makers who really believe that international law

and organizations are totally irrelevant to the conduct of international

relations, and, even more insidiously, that the proper way in which the
an an 07661)

United States government should conduct its foreign affairs is accurately
prescribed by Machiavelli's The Prince. This endemic attitude of legal
nihilism towards international relations reached its apotheosis in the
Vietnam War. And if you read the memoirs of more recent American
statesmen such as Richard Nixon, Henry Kissinger, Zbigniew Brzezinski, and
Alexander Haig, you will find that Machiavellianism still remains the
predominant mode of thought about international relations among the
members of today's U.S. foreign affairs and defense decision-making
establishment.

Therefore, I propose that it is up to each one of us as students of
Louis to bring his grand vision of World Peace Throusb World Law to bear
upon the current and future generations of American foreign policy
decision-makers. If we can successfully perform this task, then that

achievement would be the best and most fitting honor which any of his

students could ever bestow upon Louis. Thank you.

he Contemporary Issues in International Law? Essays in Honor of Louis 6B.

Sonn (T. Buergenthal ed. 1984).

ra FEF. Boyle, World Politics and International Law 7e® (1985).
From Russia With Peace

tu Wis dip fo USER y

trl ( (Gkb Francis A. Boyle AN

I shall always consider it to be one of the great honors of my life

that I was asked by The Lawyers Committee on Nuclear Policy (LCNP) to
lecture on their behalf in the Soviet Union on the general subject of

Nuclear Weapons and International Law as a guest of the Association of

Soviet Lawyers (ASL) from September 11-20, 1986. During this trip, I
lectured or spoke to people at the Institute for Canadian and United
States Studies; the Faculty of Law at Leningrad University; the
Association for Peace and Friendship (APF) in Leningrad; the Leningrad ASL
Chapter; the ASL and APF Chapters in Kiev; the ASL and APF Chapters in
Moscow; to the Department of International Law at Patrice Lumumba
University, and others too numerous to mention here. These lectures were
delivered to audiences usually consisting of professors, institute
researchers, lawyers, and peace activists. I also gave extensive
interviews to the local news media in all three cities concerning the
activities of LCNP, and my opinions on U.S. nuclear weapons policies.

Throughout these lectures I made it quite clear that I was only
speaking on my personal behalf as a Professor of International Law, but
that I knew many LCNP members would be in basic agreement with most of the
substantive positions I was taking. That being said, I would like to set
forth here the general thrust of my lectures and the responses and
questions I received from the members of the audiences I addressed.

This series of four lectures was broken down into the following

topics: (1) The Collapse of Nuclear Arms Control Agreements and

sill

Negotiations Between the United States and the Soviet Union; (2) Star Wars
vs. the ABM Treaty; (3) The Lawlessness of Nuclear Deterrence; and (4)
Defending Anti-Nuclear Civil Resistance Protesters Under International
Law. Each audience was free to choose beforehand which topic they wanted
me to address. A few sessions piggy-backed #2 with #4 since they were the
topics of most interest to my audiences.

Whatever the formal subject for discussion, however, I made it quite
clear that after my lecture I was open to answer any questions they might
have about any of these four topics; or about the Reagan administration's
nuclear weapons policies; or about American foreign policy in general. As
a result, some of these sessions were quite lengthy and broad-ranging, so
there was a thorough airing of viewpoints on both sides. Nevertheless, my
analyses and comments were treated with a great deal of respect and
courtesy, although not complete agreement at all times.

Over all, one of the primary goals I set for myself before giving
these lectures was to be as honest, forthright, and frank as I could in
analyzing the issue of nuclear weapons from an international law
perspective. In particular, I personally thought it would be extremely

important to convey the strong impression to all Soviet citizens I met

that not everyone in the United States of America has taken leave of his
or her senses during the tenure of the Reagan administration. For that
reason, I vigorously criticized the Reagan administration's position on
Star Wars; its refusal to accept the Soviet offer of a moratorium on the
testing of nuclear weapons; its repudiation of the SALT I and SALT II

Treaties; its attempts to undermine the ABM Treaty; its support for the
deployment of Pershing 2 rockets in the Federal Republic of Germany; its

absence of good faith in the SDI/START/INF negotiations at Geneva; its

eM

refusal to join the Soviet pledge on the no-first-use of nuclear weapons,

inter alia. I also emphasized the LCNP position that the use of nuclear

weapons would be illegal, and I expressed my personal opinion that the
system of strategic nuclear deterrence as currently practiced by both

superpowers violates fundamental norms of international law. No one in my

audiences dissented from these latter two propositions, and we seemed to
have been in basic agreement on most of the other points.

Of all the subjects that I dealt with throughout my lectures and
discussions in the Soviet Union, the two that seemed to be of most
interest to my Soviet hosts were (1) my analysis of the Star Wars program
as an anticipatory repudiation of the ABM Treaty and (2) the various cases
in which I and other LCNP members have participated in the defense of
anti-nuclear civil resistance protesters using principles of international
law. Since my viewpoints on the first issue have been published
elsewhere, I will not bother to repeat any of these substantive points
here. But it would be worthwhile to comment briefly on the very positive
Soviet response to LCNP activities on behalf of anti-nuclear protesters.

Such protests have received far more coverage in the Soviet news media
than here in the United States. All the Soviet lawyers, professors,
researchers and lay-people demonstrated a great deal of interest in my
explaining precisely how we use principles of international law to defend
those engaged in nonviolent civil resistance protests. Hence these
discussions ventured into quite technical analyses of U.S. constitutional
law, substantive and procedural criminal law, and of course international
law. Due to the enormous degree of interest manifested by my Soviet hosts

on this and the other lectures, I tried to leave one complete set of notes

for all four lectures with the ASL Chapter in each city for further
research and dissemination.

A good deal of my time was also spent explaining the differences
between LCNP and The Lawyers Alliance for Nuclear Arms Control (LANAC).
All of my Soviet hosts agreed that there were many more important issues
related to the overall dilemma created by nuclear weapons than just arms
control. They were quite happy to learn that there did indeed exist an
Organization of U.S. lawyers dedicated to working on all aspects of
nuclear weapons. Consequently, they stated their opinion that it would be
important for ASL to work with LCNP as well as LANAC. I think all of my
Soviet hosts were very impressed with the fact that LCNP lawyers spend so
much of their time in the defense of anti-nuclear protesters and in the
bringing of civil lawsuits designed to prevent or impede various aspects
of the Reagan administration's nuclear weapons policies. With all due
respect and admiration for my many friends in LANAC, these are not
activities which they have placed on their agenda.

In addition to the business aspects of the trip, I was treated with a
great deal of hospitality, cordiality and friendship. When I informed my
Soviet hosts that I had spent seven years studying Russian history in
college and graduate school, they made every effort to make sure that I
visited as many historical sites as possible in all three cities. I was
very happy to be finally experiencing on a first-hand basis many of the
places that I had spent so many years studying such a long time ago. As a
people, the Russians attribute enormous importance to their cultural
heritage and I am most grateful for the fact that they took so much time,

effort, and expense to immerse me in it for the short period I was there.

-5-

On the final night of my visit, I had dinner in Moscow with Vadim
Sobakin and Konstantin Shakhmuradov to discuss the terms of our proposed

conference on the question of Nuclear Weapons and International Law to be

jointly sponsored by LCNP and ASL. I will not bother to discuss the

arrangements that we concluded there since I believe they will be covered

elsewhere in this Newsletter, /But I do wish to convey the fact to LCNP

members that ASL would very much Like to establish a formal and active

working relationship with LCNP on all questions concerning nuclear

weapons. This would include exchanges of professors, lawyers, written

materials, joint publications, lectures, conferences, etc. I was certain

to obtain an explicit promise from ASL members in all three cities that

they would give serious consideration to any proposals LCNP might have

with respect to establishing this formal working relationship.

The Boards of both ASL and LCNP will be considering these matters at
greater length between now and our Fall conference. In light of the
Reagan administration's tragic blunder at Reykjavic, the establishment of
a close working relationship between ASL and LCNP becomes even more
important than ever. The further development of this relationship will

determine whether or not my trip to the Soviet Union was a success.

October 15, 1986

The wl lariuHer heyehivg
YE ARATE

NICARAGUA MUST SURVIVE*

Francis A. Boyle
University of Illinois College of Law
904 East Pennsylvania Avenue
Champaign, Illinois 61820
(Telephone: 217-333-7954)

* () Copyright 1985 by Francis A. Boyle. All rights reserved.

Despite the terrible circumstances of a war inflicted by the Reagan
administration, I accepted the kind and gracious invitation of the
Nicaraguan government to visit their country for the week of November
16-23, 1985. During this time I was able to investigate and experience on
a first-hand and very personal basis the dire and tragic consequences of
U.S. military aggression that has been perpetrated upon the people of
Nicaragua by the Reagan administration. What I discovered in Nicaragua
has profoundly shocked my conscience and moral sensibility as a citizen of
the United States and a member of the human community.

The Reagan administration's campaign of military aggression against
the Nicaraguan people by air, land, and sea has demonstrated its blatant
disregard and gross disrespect for the fundamental principles of
international law, for the maintenance of international peace and security
among nations, and for the right of self-determination for the Nicaraguan
people. These policies have violated the most sacred principles of the
United Nations Charter, the Charter of the Organization of American
States, the Geneva Conventions of 1949, and the Interim Order of
Protection issued on Nicaragua's behalf by the International Court of
Justice in May of 1984. There is no justification in international law,
religious morality, or humanitarian philosophy for the Reagan
administration's vicious and brutal attack upon the Nicaraguan people.

Contrary to press reports in the United States, I found that the
counterrevolutionary army created by the U.S. Central Intelligence Agency
in Honduras constitutes nothing more than a mercenary band of cowards,
terrorists and criminals who attack innocent Nicaraguan civilians—-old
men, women, children, invalids and religious people. They do not have the
courage to fight against the valiant members of the Nicaraguan army, but
instead concentrate their military attacks upon clinics, churches, farms,
cooperatives, schools and other sources for the provision of basic social
and humanitarian services to the Nicaraguan people. The contras wage a
war of terror and aggression against the common people of Nicaragua in
violation of the laws and customs of warfare, the Geneva Conventions of
1949, and every known principle of international humanitarian law.

Under the Fourth Geneva Convention of 1949, the United States
government is fully responsible for the gross violations of international
humanitarian law perpetrated against the Nicaraguan people by these CIA
contra mercenary bands. This juridical fact renders those Reagan
administration officials responsible for conducting the contra war guilty
of “grave breaches" of the Geneva Conventions that create personal
criminal responsibility on their part for the commission of war crimes.
Under both international law and American domestic law these officials
deserve to be severely punished as war criminals.

In light of the 40th anniversary of the Judgment of the Nuremberg
Tribunal, the American people must realize - that the Reagan
administration's policies against Nicaragua constitute Crimes against
Peace, Crimes against Humanity, and War Crimes as defined by the Nuremberg
Principles. Forty years ago representatives of the United States
government participated in the indictment, prosecution and punishment of

wine

Nazi government leaders for committing some of the same heinous
international crimes that members of the Reagan administration are today
inflicting upon the innocent people of Nicaragua. The American people
must remember and reaffirm the Nuremberg Principles by holding their
government officials fully accountable under international and U.S.
domestic law for the commission of these detestable international crimes.

It is obvious from my visit to Nicaragua that the Reagan
administration has refused to submit to the jurisdiction of the
International Court of Justice for the express purpose of avoiding a
peaceful end to this unjust war. The Reagan administration's adamant
refusal to appear before the World Court to defend itself against the
legitimate complaints of the Nicaraguan government clearly demonstrates
that its policies are premised upon illegal intervention and terrorist
violence that could never be justified before the court of world public
opinion and in the eyes of the international community. The American
people must insist that the Reagan administration fully comply with the
World Court's Interim Order of Protection already issued on behalf of
Nicaragua as well as with its forthcoming final decision on the merits.
Hopefully, the latter judgment will fully support the just claims of the
Nicaraguan government to relief, protection and compensation under basic
principles of international law.

Recently, the American people have heard a great deal of criticism by
the Reagan administration of the Nicaraguan government's decision to
decree a state of emergency. Most regretfully, a sustained and concerted
attack upon its borders and an attempted campaign oof massive
destabilization and terror has forced the government of Nicaragua to enact
these minimal measures designed to ensure the safety and security of its
people. While some civil liberties have been temporarily suspended as
part of a program to deal with the enormity of the threat created by the
current aggressive policies of the Reagan administration, it is clear from
their content and execution that these measures have not been motivated by
any desire to protect the government from a dissatisfied people, but
rather to protect the citizens of Nicaragua from the depredations of
Reagan's counterrevolutionary forces.

Despite these externally fomented pressures, I found a remarkable
sense of comraderie that pervades Nicaraguan society as a whole. There
was no evidence of tension or diminished support by the Nicaraguan people
against the Sandinista government. On the contrary, the undoubted
weariness of the people is directly attributable to the terror and
devastation wreaked by the contras. Proof that the emergency measures
were essentially designed to deal with the military threat may be found in
the facts that daily life goes on in the major urban areas much as
before. There is no curfew; no presence of excessive military personnel;
no evidence of a "police state." Overall, the Nicaraguan people trust and
support their government and the government protects and respects its
people.

I witnessed first hand the freedom of religion in Nicaragua. I
attended religious services and talked to religious people. This is a

EE

-

religious country where the vast majority of people are devoutly
Catholic. The Nicaraguan government recognizes and respects this fact and
has done nothing to restrict the basic right of all people in Nicaragua to
practice their religious beliefs. Despite reports in the American press
to the contrary, I found an enormous degree of support by the Catholic
religious peoples of Nicaragua for the Sandinista government.

I was surprised to discover more freedom in an embattled and invaded
Nicaragua than exists in many other Latin American and Caribbean countries
that are the victims of brutal repression and gross violations of
fundamental human rights perpetrated by military dictatorships with the
full support of the United States government. Before the American people
criticize the state of emergency in Nicaragua, they should first examine
the Reagan administration's reprehensible role in denying the basic human
rights and fundamental freedoms of the people in El Salvador, Honduras,
Guatemala, Chile, Haiti, the Philippines, South Africa, Namibia, Lebanon
and of course the Palestinian people. In its declaration of the state of
emergency, the Nicaraguan government has fully complied with its
obligations under the U.N. Covenant on Civil and Political Rights, the
U.N. Covenant on Economic and Social Rights, and the Inter-American Human
Rights Convention. By contrast, the United States government has signed
these basic international human rights treaties, but the Reagan
administration has refused to ratify any one of them. The American people
should understand that the U.S. government must first ratify these
international human rights treaties before it can obtain any standing
under international law to complain about the state of emergency in
Nicaragua.

During my time in Nicaragua, I paid special attention to the condition
of the Mosquito Indians and the other indigenous peoples of the Atlantic
Coast. Members of the Nicaraguan government were quite frank in admitting
that serious mistakes have been made in dealing with the indigenous
peoples of the Atlantic Coast. Some of those responsible for these
excesses have been punished, and the Nicaraguan government has undertaken
a conscientious effort to reevaluate and improve its policies toward them
in order to take into account their different historical, cultural,
religious and political experiences. I met with a Mosquito representative
on the newly created Autonomy Commission and she has stated her opinion
that despite the mistakes of the past she now believes the government in
Managua is seriously trying to reach a solution to the outstanding
problems of the indigenous people of the Atlantic Coast with their active
participation and in a manner fully acceptable to them.

Despite the allegations of the Reagan administration, I found no
evidence that the indigenous peoples of the Atlantic Coast have been the
victims of the international crime of genocide. At this time their major
problems --— as for the rest of the people of Nicaragua --— have been
created by the mercenary war being conducted by the Reagan administration
from its sanctuaries in Honduras. If the war would stop, I feel confident
that the government in Managua could readily obtain an agreement
acceptable to the indigenous peoples of the Atlantic Coast that would
allow them to fulfill their cultural, economic, religious and political

salu

aspirations within the context of an autonomous relationship with the rest
of the country.

The American people must realize that before the Reagan administration
has any standing under international law to accuse the Nicaraguan
government of genocide against the Mosquitos, the U.S. government must
finally ratify the 1948 Genocide Convention, and then examine its own
treatment of Blacks, Indians, Eskimos and the other indigenous peoples of
North America in light of the requirements of the Genocide Convention. I
am confident that there exists absolutely no comparison between the
policies of the Nicaraguan government toward the Mosquitos and the manner
in which the U.S. government has historically treated the indigenous
peoples of North America by means of extermination, slavery, genocide and
continued bantustanization.

I wish to conclude by calling upon all the peoples of America and
people of good will around the world to do all that is in their power to
resist and oppose the Reagan administration's illegal policies against
Nicaragua. I ask other American citizens to join in this endeavor by
actively participating in the work of U.S. Out of Central America, the
Pledge of Resistance, the Sanctuary Movement, and the Nicaragua Must
Survive Campaign, among others. In particular, the most useful thing that
American citizens can do at this critical moment in the war is to sign the
Pledge of Resistance. If a million American citizens were to indicate
that they are fully prepared to engage in a massive campaign of nonviolent
civil disobedience in the event of direct U.S. military intervention
against Nicaragua, this public show of support and solidarity could serve
as a significant deterrent to the implementation of such a criminal act by
the Reagan administration.

Make no mistake about it, Nicaragua will not be another Grenada, and
it could be far worse than Vietnam. The Nicaraguan people are fully
prepared to die for their freedom and independence. They will not succumb
to another round of U.S. intervention and imperialist domination without a
fight to the death by their entire society. Such a war would create tens
of thousands of American casualties, and hundreds of thousands of
Nicaraguan casualties. It will be the common people of both America and
Nicaragua that will pay the price with their blood for the pursuit of such
a criminal course of conduct by the members of the Reagan administration.

Such a war would fundamentally alter the nature of American society
with its constitutional system of government and its commitment to the
rule of law. The civil rights and civil liberties of all American
citizens would have to be drastically curtailed by the Reagan
administration in order to prosecute such an unjust war against
Nicaragua. If the Reagan administration is allowed to escalate this war
with Nicaragua any further, the American people will forfeit any right to
claim political or moral leadership for the democratic peoples in Europe,
the Western hemisphere and the Pacific. We will turn ourselves into the
common enemies of mankind. And in the process, we will destroy the nature
of our own being. For all these reasons, then, Nicaragua must survive.

-

arms control agreement

Introduction

Throughout the first term of the Reagan administration the United
La
States public was constantly barraged with charges that the Soviet Union

and its ally Vietnam were engaged in the use of c and biological

ay _ . _ —= ans,
weapons in Afghanistan, Kampuchea and Laos. jIn my professional opinion,

a, ae —— i ae,
these charges were not made in good faith, but rather simply represented

— TS =

part of an orchestrated attempt by the Reagan administration to convince

ee ———

the American people that the Soviet Union could not be trusted to live up

— = —

to the terms of arms control agreements it had already concluded with the

United States government. These allegations were intended to diffuse

public pressure upon the Reagan administration to conclude additional

a

chemical, biological and nuclear arms control agreements with the Soviet

- Union in the future, as well as to deflect public criticism of the Reagan

a

administration's decisions to either violate or ignore the provisions of

a 4 — 4

—

s that had already been concluded with the Soviet ©

—_ = —— —_————$—$

Union in the past.

Although most of the controversy has centered upon alleged Soviet
non-compliance with existing nuclear arms control agreements, charges of
chemical and biological warfare have had a significant role to play in the

a
public debate. Indeed, the Reagan administration nas (shrewdly used

a

allegations that the Soviets were violating the Geneva Protocol of 1925°'

ee meen
we _

and the Biological Weapons Convention of 19727 in an effort not only to

rationalize its own chemical and biological warfare campaign,’® but also

be

7 _—— —_, — _ 4

“o =

to justify in part its massive nuclear weapons buildup. Although this
<oe—__

—_

paper will not attempt to deal with arguments that the Soviets have
violated existing nuclear arms control agreements, it will analyze U.S.

allegations of Soviet violations of the Geneva Protocol and the Biological

«Ju

Weapons Convention. The purpose of this paper will be to determine
whether or not these allegations substantiate the Reagan administration's
interrelated claims that the Soviets cannot be trusted with respect to the
conclusion of future chemical and biological arms control agreements and
that therefore the United States should respond in kind by deploying a new
generation of chemical weapons and by engaging in borderline genetic
engineering research activities. Such actions by the U.S. would further
erode the Biological Weapons Convention under the guise of supposedly

"defensive" or "peaceful" purposes.

The Charges

I do not have time in this short essay to review in detail the legal
and factual bases for the Reagan administration's claim that the Soviet
Union and its allies have used chemical and biological weapons in
Afghanistan and Southeast Asia. This task has been most competently

Ly4vd =

performed elsewhere by a former student of mine in a published article -)_ OWN

a 7 1 JU A
. ‘2 a? \ — f) é y be T ‘<1 e
that has been widely disseminated by the Department of Defense\(* .

——_——————————J__—“~._

Briefly stated, however, claims have been made that the Soviet Union has
used chemical and biological weapons against resistance fighters in
Afghanistan; that Vietnamese forces have used chemical and biological
weapons against insurgents in Laos; that Vietnamese forces have used
mycotoxins against resistance fighters in Kampuchea; and that the Soviet
Union has provided — and biological weapons to Vietnam for these
purposes.”

On the basis of these factual allegations, the Reagan administration

has charged that the Soviet Union has violated both the Geneva Protocol of

1925 (hereinafter referred to as the Protocol) and the Biological Weapons

sili

Convention of 1972 (hereinafter referred to as the Convention). The
Geneva Protocol prohibits the use in war of asphyxiating, poisonous or
other gases, and of all analogous liquids, materials or devices as well as
of bacteriological methods of warfare.®° The Biological Weapons
Convention’ prohibits the development, production, stockpiling,
acquisition or retention of microbial or other biological agents, or
toxins, whatever their origin or method of production, of types and in
quantities that have no justification for prophylactic, protective or
other peaceful purposes; as well as weapons, equipment or means of
delivery designed to use such agents or toxins for hostile purposes in
armed conflict.* The Convention also prohibits parties from transfering
all such prohibited materials to any recipient whatsoever, directly or
indirectly, or in any way to assist, encourage or induce any state or
group of states to manufacture or otherwise acquire any of the prohibited

. . * 3
agents, toxins, weapons, equipment or delivery systems.

The Importance of Legal Technicalities

At this preliminary point, a few technical comments must be made in
order to facilitate the analysis. First, unlike the Convention, the
Protocol does not attempt to control either the numbers or types of
chemical or biological weapons that state parties can develop, produce,
stockpile, acquire or retain, etc.’° Second, unlike the Protocol, the
Convention does not specifically prohibit the use of biological weapons,
though it would be impossible to use biological weapons without violating
the terms of the Convention. Third, the Convention expressly mentions
toxins by name,’ whereas the Protocol does not. Nevertheless, the use

of mycotoxins in warfare would violate the Geneva Protocol since

=

mycotoxins are generally deemed to be a form of bacteriological weapon
because they are produced by micro-organisms. Fourth, the prohibitions
found in the Convention do not apply to poison gas or chemical weapons.
Fifth, the Protocol applies only during a war or international armed
conflict, whereas the Convention applies at all times, whether during
peace or war.

In the various charges bandied about by the Reagan administration and
its private-sector apologists, none of these crucial distinctions has been
made or even alluded to. Yet a thorough command of these distinctions is
essential for drawing any conclusions about alleged Soviet violations of
the Protocol and Convention relevant to the current debate over whether or
not Congress should support the Reagan administration's proposed chemical
and biological warfare buildup. As a specialist in international law, I
can only conclude that the Reagan administration's blatant disregard for
and appalling distortion of these important legal technicalities indicate
that it is more interested in scoring public propaganda points against the
Soviets than in seriously investigating, prosecuting and redressing their

alleged violations of international law.

The Burden of Proof

The first matter that must be dealt with is establishing who has the
burden of proof with respect to these factual and legal allegations, and
then one must determine the proper standard of proof to be applied to the
evidence. As a matter of international law, it is well-recognized that
the government alleging a violation of international treaties or
agreements has the burden of proof to establish its charges. The same

would be true for any type of civil or criminal case here in the United

willie

States or most other countries in the world. The plaintiff always has the
burden of proof to establish the facts and law upon which he rests his
case.

The more difficult issue is not the allocation of the burden of proof
to the plaintiff, but rather determining the proper standard of proof to
be applied. In general, lawyers are accustomed to dealing with three
degrees or standards of evidence when it comes to the burden of proof. In
criminal cases, it is invariably said that the state or the prosecution
has the burden of proving all elements of the crime and all facts
necessary to constitute the crime beyond a reasonable doubt. By
comparison, in civil cases, it is usually said that the plaintiff has the
burden of proof to establish the facts necessary to constitute his cause
of action by a fair preponderance of the evidence. In other words, if the
civil plaintiff cannot convince a jury that the facts are what he says
they are "more probably than not," he loses his case.

Finally, in some civil cases of a quasi-criminal or equitable nature,
lawyers have developed a third standard of proof that is intermediate
between those applied in civil and criminal cases, known as the "clear and
convincing evidence" test. This standard of proof requires a degree of
evidence significantly beyond the "more probable than not" standard
applied in civil cases, but something less than the "beyond a reasonable
doubt" standard applied in criminal cases. This third test has been
defined to require a degree of evidence that is "highly probable."

Which of these three standards of proof should be applied to factual
allegations by the Reagan administration that the Soviet Union and its
allies have used chemical and biological weapons in Afghanistan and

Southeast Asia? In the seminal Corfu Channel Case (1949),'* the

ial fhe

International Court of Justice ruled that where a state cannot obtain
direct evidence of allegedly illegal activities that occurred in the
territorial jurisdiction of another state, circumstantial evidence can be
relied upon to draw inferences of fact to prove its case, provided that

> In other words, the Court

they leave no room for reasonable doubt.’
essentially adopted the beyond-a-reasonable-doubt standard where a state
tries to prove international law violations by another state in formal
proceedings brought before it.

Although the beyond-a-reasonable-doubt standard might be a
jurisprudential requirement for proving allegations of fact to the
satisfaction of the International Court of Justice, in a real world
situation we cannot and should not expect government decision-makers in
the United States or any other state to operate on the
beyond-a-reasonable-—doubt standard when it comes to the formulation of
vital foreign affairs and defense policies. But this conclusion does not
mean that government decision-makers in a popularly elected democracy with
a commitment to the rule of law both at home and abroad should operate in
accordance with and be held accountable for discharging the mere
preponderance-of-the-evidence standard generally applied to civil cases.
When grievous allegations of non-compliance with arms control agreements
are being used for the purpose of justifying a new generation of chemical
weapons and an increase in spending on dual-use genetic engineering
research into biological warfare, the preponderance-of-the-evidence
standard is simply inadequate. To phrase this proposition another way, we

can not justify such a monumental change in the longstanding U.S. national

policy that has so far disfavored the further development of chemical and

ails

biological weapons on the basis of evidence which might only be "more
probable than not."

Therefore, we should expect the Reagan administration to produce clear
and convincing evidence, which is "highly probable" evidence, that the
Soviet Union and its allies have used chemical and biological weapons in
Afghanistan and Southeast Asia. I submit that the Reagan administration
has never produced clear and convincing evidence to back up its charges.
Indeed, upon my reading of all the evidence so far available in the public
record, it seems that outstanding Reagan administration allegations do not
even meet the mere more-probable-than-not standard when it comes to
discharging its burden of proof on this matter.

In this regard, lawyers employ another term for non-persuasive
evidence called a "scintilla of evidence" or "slight evidence."" A
"scintilla of evidence" has been defined as "slight testimony [whose]
probative force is so weak that it only raises suspicion of existence of
facts sought to be established . . . [Sluch testimony falls short of being
'evidence.'"** I suggest that, at the very best, the Reagan
administration has produced a "scintilla of evidence" that the Soviet
Union and its allies may have violated the Geneva Protocol of 1925 in
Afghanistan and the Biological Weapons Convention of 1972 in Southeast
Asia. In other words, the Reagan administration has so far produced
"slight evidence" that raises a suspicion of the existence of facts that
it would like to establish. But this mere "scintilla of evidence" cannot
and should not be used as a basis for any affirmative determination by
Congress or the American people to support the Reagan administration's

proposed chemical and biological warfare buildup.

The Facts

For example, in Afghanistan, the Reagan administration has produced
one single gas mask as the only non-testimentary piece of evidence it has
so far offered to support allegations of chemical weapons use in that
country.'* Moreover, the U.S. government had to buy the mask.
Furthermore, discovered traces of the alleged chemical weapon appeared on
the outside of the mask, not in the mask's filtration system, where they
should have been located if the mask had actually been used for combat
purposes.’°

With respect to Kampuchea, it appears that the U.S. government's
allegations of "yellow rain"’’ are most likely to be explained by the
thesis first put forward by Professor Matthew Meselson of Harvard
University, to the effect that yellow rain is nothing more than bee
feces. In this regard, I refer you to the recent article written by him

and some colleagues that appears in the September, 1985 issue of

* * * * 1 a * .
Scientific American. The important point to remember here, however,

is not that Meselson has to prove his case by even a fair preponderance of
the evidence, but rather that the Reagan administration has not yet proved
its case by clear and convincing evidence. Although there might exist
“slight evidence" or a "scintilla of evidence" for the use of mycotoxins
in Kampuchea by Vietnam, it is clear that U.S. allegations do not amount
to "clear and convincing evidence," nor is it "more probable than not"
that mycotoxins have actually been used by Vietnam in Kampuchea. Indeed,
in my opinion it is at least more probable than not that yellow rain is
bee excrement.

Finally, there is absolutely no evidence at all that the Soviet Union

has provided mycotoxins to Vietnam for use in Kampuchea or Laos. This is

wil fie

the second element of proof which the Reagan administration would have to
establish by at least clear and convincing evidence before it could even
begin to make a case against the Soviets under the Biological Weapons
Convention with respect to Kampuchea and Laos. Moreover, the Pentagon has
grudgingly conceded that any country capable of constructing a brewery
could produce mycotoxins.'* So even if Vietnam had used mycotoxins in
Kampuchea or Laos, there is not even a “scintilla of evidence" for Soviet

complicity.

The Geneva Protocol of 1925 Is Not an Arms Control Agreement

It is quite distressing for me to observe another purposeful
distortion by the Reagan administration in its allegations against the
Soviet Union. The Reagan administration has intentionally confused and
confounded charges under the Geneva Protocol of 1925 with those under the
Biological Weapons Convention of 1972. As a matter of international law,
each of these treaties is materially different, and it is
jurisprudentially erroneous to try to equate allegations of violations
arising under them. The Geneva Protocol of 1925 is not an arms control
treaty, despite the fact that the Reagan administration has attempted to
claim this,”° whereas the Biological Weapons Convention of 1972 is an
arms control treaty. Therefore, allegations that the Soviets might have
violated the Geneva Protocol in Afghanistan should have absolutely no
bearing at all upon whether or not some future arms control agreement
should be concluded with them in regard to either chemical, biological or
nuclear weapons. On the other hand, since the Biological Weapons
Convention of 1972 is an arms control treaty, allegations that the Soviets

might have violated this agreement by providing the Vietnamese with

a i

mycotoxins for use in Kampuchea or Laos should be treated quite seriously
with respect to the issue of whether the Soviets can be trusted to live up
to future arms control treaties dealing with either chemical, biological
or nuclear weapons.

An examination of the negotiating history of the Geneva Protocol of
1925 reveals that the Protocol was clearly not intended to be an arms
control treaty, but rather a treaty that improved the international laws
of humanitarian armed conflict. The adseoey of the Geneva Protocol goes

*) which adopted three

back to the First Hague Peace Conference of 1899,
declarations that forbade the use of certain types of weapons, though arms
control and disarmament were not their intended purpose. These
declarations prohibited: (1) the launching of projectiles and explosives
from balloons or similar devices; (2) the use of bullets which expand or
flatten easily in the human body -- that is, so-called dum-—dum

bullets;** and (3) the use of projectiles whose only purpose was the
diffusion of asphyxiating or deleterious gases.** These three
declarations explicitly stated that they were "inspired by the sentiments
which found expression in" the Declaration of St. Petersburg of 1868.7*
This earlier international agreement had renounced the use in warfare "of
any projectile of less weight than 400 grams, which is explosive, or is

2s
In essence, the

charged with fulminating or inflammable substances."
stated purpose of the St. Petersburg Declaration was to "reconcile the
necessities of war with the laws of humanity.'"**® Thus, the motivating
force behind the adoption of the three succeeding 1899 Hague Declarations
was attributable primarily to humanitarian considerations instead of to a

genuine desire to Limit or reduce armaments which were viewed to be

militarily significant at that time.

| =

Nevertheless, during the First World War, in addition to the
submarine, the other novel instrumentality of modern combat to make its
grisly appearance and to be employed in explicit violation of
international law was poison gas. Both sets of belligerents eventually
resorted to the use of poisonous gases despite their ratification without
reservation of this 1899 Convention prohibiting such use, though the
United States was not a party. The large-scale use of poison gas during
the Great War was not, however, appropriately characterized as a failure
for the principle of arms limitation and disarmament, but rather as a
setback for the development of the humanitarian laws of armed conflict.
These two bodies of international law, albeit interrelated, were and still
are premised upon fundamentally different theoretical bases and intended
to serve distinct purposes.

In direct reaction to the battlefield horrors of the First World War,
the Geneva Protocol of 1925 reaffirmed the 1899 prohibition on the use in
war of "“asphyxiating, poisonous or other gases, and of all analogous
liquids, materials or devices"*’ and extended that ban to include the
use of bacteriological methods of warfare.** Fifteen years later, the
Geneva Protocol was generally observed by all the belligerents during the
Second World War. Pursuant thereto, neither set of belligerents used such
weapons in the European theater of operations, though each side maintained
a stockpile in order to deter their first use by its adversaries. The
Geneva Protocol worked quite effectively to inhibit the use of these early
weapons of mass and indiscriminate destruction during the utter
desperation of the Second World War despite the fact that their potency

had been amply demonstrated during the First World War.

~~

Today, Reagan administration allegations that the Soviet Union is
violating the Geneva Protocol by using chemical weapons in Afghanistan —-
even if established to be factually and legally correct -- should
therefore be interpreted as a setback for the humanitarian laws of armed
conflict, not for the negotiation of arms control and reduction agreements
between the two superpowers with respect to chemical, biological or
nuclear weapons. The Reagan administration seems to have purposely
obfuscated this distinction in order to justify its proposed chemical and
biological warfare buildup as well as to support its obstructionist
tactics in nuclear arms control negotiations. The charge that the Soviets
might have violated the Geneva Protocol of 1925 in Afghanistan is no more,
but certainly no less, serious than or materially different from
allegations that the Soviets have violated the Four Geneva Conventions of
1949 in Afghanistan. In this regard, I should mention that allegations
that the United States government violated the prohibitions found in the
Geneva Protocol of 1925 and the Four Geneva Conventions of 1949 during the
Vietnam War did not prevent or impede the Soviet Union from negotiating
with us over the SALT I Agreements of 1972 (i.e., the ABM Treaty and the
Interim Agreement on Offensive Weapons) and the SALT II Treaty of 1979. I
submit that the same rationale should be applied today with respect to our
continuing the negotiation of additional chemical, biological and nuclear

arms control agreements with the Soviet Union at Geneva.

The Geneva Protocol Does Not Apply to the Conflicts in Afghanistan, Laos

and Kampuchea

Furthermore, there are substantive problems with the Reagan

administration's allegations that the Soviet Union has somehow violated

wl Bee

the Geneva Protocol of 1925 in Afghanistan and Southeast Asia. The Geneva
Protocol expressly states that its protections apply only with respect to
belligerents who are parties to the Protocol.** Although the Soviet
Union, the United States, and Vietnam are all parties to the Geneva
Protocol, neither Afghanistan, Kampuchea, nor Laos are. Since the latter
are not parties, by its own terms the Protocol does not prohibit either
the Soviet Union or Vietnam from using chemical or biological weapons
during a war or international armed conflict in Afghanistan, Kampuchea, or
Laos.

Moreover, to prevent any doubt or confusion on this point, both the
Soviet Union and Vietnam have entered specific reservations*®® to the
Geneva Protocol to the effect that the treaty would only bind those two
governments if their belligerent adversaries had both signed and ratified
the Protocol or else had finally acceded thereto. Once again, since this
has not been done by Afghanistan, Laos or Kampuchea, these three states
are not entitled to the benefit of the Geneva Protocol in the event of
armed conflict or war with the Soviet Union or Vietnam despite the fact
that the latter two states are parties to the Protocol. Hence as a matter
of international law it would be legally impossible for the Soviet Union
or Vietnam to violate the terms of the Geneva Protocol in Afghanistan,
Kampuchea or. Laos.

Finally, in addition to the requirement that belligerents must be
parties, yet another condition for the applicability of the Geneva
Protocol is that there actually exists a war or an international armed
conflict. The Protocol only prohibits the wartime use, not the peacetime
use, of chemical and biological weapons. This precondition would clearly

include the conflicts in Afghanistan and Kampuchea, but not Laos.

i a.

=15=

In Laos there have been some completely unsubstantiated allegations
that Vietnamese forces might have used riot control agents or yellow rain
against Laotian insurgent groups in various regions of the country. In
addition to the fact that these allegations are supported by no more than
a mere "scintilla of evidence,'' the use of chemical or biological weapons
in such a context is not a violation of the Geneva Protocol. There is no
war or international armed conflict in Laos. Consequently, by its own
terms, the Geneva Protocol of 1925 simply does not apply to this type of
situation. On the other hand, Vietnamese use of mycotoxins in Laos would
entail a violation of the Biological Weapons Convention since the latter
applies at all times. But even if these charges were to be substantiated
by clear and convincing evidence, there is not even a "scintilla of
evidence" for Soviet complicity.

To be sure, in regard to this "war" requirement of the Geneva
Protocol, I would reject any contention by the Soviet government that the
Protocol does not apply in Afghanistan because the Soviets have merely
been invited by the "legitimate" government of that country to put down a
rebellion fomented by foreign states. This simply is not true. There is
an international armed conflict or war in Afghanistan, and therefore this
threshold test for the applicability of the Geneva Protocol of 1925 would
be met. The same can be said with respect to any Vietnamese allegations
that there is no war or international armed conflict in Kampuchea.
Nothing could be further from the truth.

Nevertheless, by its own terms, for at least one reason or another,
the Geneva Protocol of 1925 simply does not apply to the conflicts in
Afghanistan, Kampuchea and Laos. Therefore, as a matter of international

law, it is incorrect, unfair and misleading for the Reagan administration

eee

i

to argue that the Soviet Union has somehow violated the Geneva Protocol by
the use of chemical or biological weapons in Afghanistan; that Vietnam has
violated the Protocol by the use of chemical or biological weapons in
Kampuchea or Laos; and that the Soviet Union has violated the Protocol by
providing chemical or biological weapons to the Vietnamese for use in
Kampuchea or Laos. And this conclusion even assumes that the Reagan
administration could possibly establish by clear and convincing evidence
that chemical or biological weapons have been used by the Soviets in
Afghanistan; that chemical or biological weapons have been used by the
Vietnamese in Kampuchea and Laos; and that chemical or biological weapons
have been provided by the Soviet Union to Vietnam. Consequently, such
allegations of Geneva Protocol violations should have no negative impact
at all upon chemical, biological or nuclear arms control negotiations with
the Soviets at Geneva, let alone provide support for the Reagan
administration's proposed buildup in chemical, biological and nuclear

warfare capabilities.

The Biological Weapons Convention of 1972

By contrast, however, we must analyze quite seriously allegations that
the Soviet Union has or might have violated the Biological Weapons
Convention of 1972. This is because, unlike the Geneva Protocol of 1925,
the Biological Weapons Convention was clearly intended to be and is in
fact an arms control treaty. If the Soviet Union cannot be trusted to
live up to the terms of this seminal arms control agreement then that
conclusion should quite properly adversely affect our perception of the
utility of negotiating a chemical weapons treaty with the Soviet Union at

Geneva, and should have an indirect impact upon whether or not it makes

aif Pan

sense to negotiate further nuclear arms control agreements with them. So,
from a legal perspective, the allegations arising under the Biological
Weapons Convention are far more serious and materially different from the
Geneva Protocol allegations. Yet, instead of attempting to point these
fundamental distinctions out, the Reagan administration has purposefully
confused and confounded them for propaganda purposes.

For example, I myself was quite concerned about the reported outbreak
of an anthrax epidemic in the Soviet town of Sverdlovsk in January of
1979. However, any suppositions that this epidemic was an indication that
the Soviets were engaged in prohibited biological warfare research were
refuted in a little-noticed article by Zhores Medvedev.*' I should
point out that Medvedev is a leading Russian dissident who, at the time of
publication, was a biochemist at the National Institute for Medical
Research in London. Medvedev had previously been incarcerated for three
weeks in a Soviet mental hospital where he was diagnosed as an "incipient
schizophrenic" with "paranoid delusions of reforming society." Clearly,
it cannot be contended that Medvedev had any ulterior motive to exonerate
the Soviet Union from charges of prohibited biological warfare research.
Yet on the basis of his scientific knowledge, training, and experience,
Medvedev accepted the Soviet explanation for the anthrax epidemic and
concluded that this event should provide no grounds for a biological
warfare buildup by the United States.

Later, when the Reagan administration came forth with claims that the
Soviets had provided mycotoxins for use by Vietnam during the war in
Kampuchea, I took these allegations quite seriously. Such activities
would have constituted a material breach of the Biological Weapons

Convention, which specifically mentions toxins by name and prohibits their

wien

transfer by a party such as the Soviet Union to any other state.*?”

Unlike the Geneva Protocol of 1925, the United States, the Soviet Union,
Vietnam, Afghanistan, Kampuchea and Laos are all parties to chin draconian
arms control treaty, and there are no reservations to the Biological
Weapons Convention.

As stated earlier, however, it seems to me more probable than not that
the alleged mycotoxins are nothing other than bee excrement. Moreover,
there is no evidence at all that, even if mycotoxins were used by Vietnam
in Kampuchea or Laos, the Soviet Union provided the Vietnamese with these
mycotoxins. Once again, even the Pentagon has grudgingly conceded that
any country capable of constructing a brewery can produce mycotoxins on
its own.°* Unless and until the Reagan administration can produce clear
and convincing evidence of such Soviet complicity, only Vietnam would be
responsible for violating the Biological Weapons Convention. The Soviet
Union cannot fairly be held vicariously responsible for Vinemaiiee

violations of international law.

Properly Raising Alleged Violations

If the Reagan administration had been seriously interested in
officially pursuing its allegations that the Soviet Union and Vietnam had
violated the Biological Weapons Convention with respect to Afghanistan,
Kampuchea, and Laos, then article 6 of the Convention specified the proper
procedure that should have been followed.** Article 6 permits any state
party to the Convention to lodge a complaint with the United Nations
Security Council if it has reason to believe that any other state party
such as the Soviet Union or Vietnam is acting in breach of its obligations

thereunder. Article 6 further provides that each state party undertakes

wi Gin

to cooperate in carrying out any investigation which the Security Council

> The Reagan

may initiate on the basis of such a complaint.’
administration never lodged a formal complaint with the Security Council
over alleged Soviet or Vietnamese violations of the Biological Weapons
Convention, as it should have done if it truly believed there existed
clear and convincing evidence of such material breaches. Conversely, the
fact that the Reagan administration made no effort to invoke article 6
indicates to me that it realized full well that all it possessed was a
mere 'scintilla of evidence" that the Convention might have been violated
by the Soviet Union or Vietnam with respect to Afghanistan, Kampuchea, and
Laos.

To be sure, article 6 does not and could not require the Security
Council to launch an investigation into such allegations. Furthermore, a
Security Council decision to open a formal investigation into such a
complaint would have constituted a substantive matter that could have been
vetoed by any one of the five permanent members of the Council--in this
instance, the Soviet Union. But the assertion that the Soviet Union could
have vetoed the formal opening of such an investigation by the U.N.
Security Council does not excuse or explain the Reagan administration's
total failure to file a complaint with the Council under article 6 of the
Biological Weapons Convention. Moreover, the prospect of a threatened
Soviet veto could have been countered by the United States government
pre-announcing its intention to treat a veto on this matter of such
fundamental importance as an "extraordinary event" that would "jeopardize"
its "supreme interests," thus constituting lawful grounds for exercising

its right of withdrawal from the Convention upon three months notice as

specified in article 13.

~20-

Instead of pursuing these prescribed remedies, however, during the
Fall of 1980 the Reagan administration proposed that the U.N. General
Assembly create a committee of experts to investigate U.S. allegations of
chemical and biological warfare by the Soviet Union and Vietnam in
Afghanistan, Laos and Kampuchea. In response, the Soviet Union,
Afghanistan, Vietnam and Laos all refused to cooperate with the
investigation launched by this Group of Experts because it had not been
authorized by the U.N. Security Council in accordance with the procedure
required by article 6 of the Biological Weapons Convention. Thus, the
refusal of these states to cooperate with the U.N. Group of Experts did
not constitute a violation of the Biological Weapons Convention. And of
course the U.N. committee could not reach a conclusion that chemical or
biological weapons had actually been used in Afghanistan, Laos or

Kampuchea.

The Need for Implementing Legislation

It is generally agreed that the Biological Weapons Convention applies
to recombinant DNA experiments and other techniques of genetic
engineering. However, one of the great loopholes and serious deficiencies
of the Biological Weapons Convention is the exception it has created for
biological agents or toxins that are retained for prophylactic,
protective, or other "peaceful" purposes.*°° Indeed, article 10 makes it
clear that parties to the Convention have the right to participate in the
fullest possible exchange of equipment, materials, and scientific and
technological information for the use of bacteriological agents and toxins

for "peaceful" purposes.

-~21-

In this regard, the major problem becomes that it is almost impossible
to conduct genuinely "peaceful" research into these areas without
obtaining results that could readily be put to use for the production of
new forms of biological weapons. For example, I am extremely concerned
about the borderline legality under the Biological Weapons Convention of
several recombinant DNA research projects that are currently being
performed or funded by the Department of Defense. These projects can be
found on a list of April 17, 1985 that has been published in a special
issue of the Bulletin of the Committee for Responsible Genetics,
GeneWatch.*’ In my opinion, these intrinsically and unavoidably
dual-use research projects demand strict and continuing oversight by a
joint congressional committee in order to ensure that they fully comply
with both the letter and the spirit of the Biological Weapons Convention.

Certainly the most effective way the compliance problem created by
such dual-use genetic engineering research can be dealt with would be for
the United States Congress to adopt implementing legislation designed to
guarantee that all currently-existing projects in this area be undertaken
in strict accordance with the terms of the Biological Weapons Convention.
Indeed, article 4 of the Convention requires each state party to adopt
such implementing legislation,** though the U.S. Congress has not yet
gotten around to enacting it. In August of 1980, Congressman Peter Rodino
introduced legislation to implement the Biological Weapons
Convention.** But since there was little time remaining before the
congressional election recess that Fall, no hearings were held on the
legislation.

In light of the ominous steps the Reagan administration is currently

taking in the area of dual-use genetic engineering biological warfare

—~22—

research, I would strongly recommend that implementing legislation for the
Biological Weapons Convention be introduced once again, and that Congress
favorably act upon it as soon as possible. Although not absolutely
foolproof, the imposition of severe criminal penalties would serve as an
effective deterrent and restraint upon individuals in government or the
private sector who are currently conducting genetic engineering research
that could be put to prohibited uses. Indeed, the enactment of such
implementing legislation would constitute one of the primary mechanisms
for preventing "terrorist" groups or states from contracting with genetic
engineering firms on the verge of bankruptcy for the production of
biological weapons that could serve as a relatively inexpensive
alternative to the development of nuclear weapons for the threat or use of

mass extermination in order to accomplish their objectives.

Conclusions

Based upon the foregoing analysis, I do not believe that either the
Congress or the people of the United States of America are in a position
where they can or should make any policy decisions with respect to
providing funds for a new generation of chemical weapons or support for
recombinant DNA biological warfare research. To be sure, Congress should
continue to monitor the situation; should demand more facts from the
Reagan administration; should require the Department of State's Legal
Adviser to produce a sound, not misleading and self-serving, analysis of
the international law ramifications; and should apply pressure upon the
Reagan administration to negotiate improvements in the currently existing
but obviously defective international treaty regime with respect to

chemical and biological weapons. I certainly do not believe that the mere

ee ee —— ee eee

2t.

"scintilla of evidence" for Soviet or Vietnamese violations of the Geneva
Protocol and Biological Weapons Convention adduced so far can or should
validly be used by Congress to support the chemical and biological warfare
buildup that has been proposed by the Reagan administration. Continuing
and thorough congressional oversight of already funded recombinant DNA
research activities in this area is imperative. And the enactment of
domestic implementing legislation for the Biological Weapons Convention of

1972 is long overdue.

da
—-24—
Footnotes

1. Protocol for the Prohibition 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.I.A.S. No. 8061, 94

LoN.1.S. 65.
2. Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their

Destruction, opened for signature Apr. 10, 1972, 26 U.S.T. 583, T.I.A.S.

No. 8062, 11 I.L.M. 309, 310 (1972) (annex) (entered into force Mar. 26,
L973) «
3. The Reagan Administration in 1983 sought $171 million for new

chemical weapons and $695 million for defensive protection. Kaplan, Nerve

Gas May Be Making a Comeback, Boston Globe, Aug. 15, 1983, at 33, col. l.

Their fiscal 1985 defense budget then included $1.1 billion for new
chemical warfare capabilities, including $105 million for parts and

production facilities. Kaplan, Reagan puts Focus on Chemical Arms, Boston

Globe, Apr. 9, 1984, at l.

4. Note, International Regulation of Chemical and Biological

Weapons: "Yellow Rain" and Arms Control, 1984 U. Ill. L. Rev. 1011

(1984).

3's D t i in i t_ Asi n

Afghanistan, Special Report No. 98, at 6 (March 22, 1982) (report to

Congress); U.S. Dept. of State, Chemical Warfare in Southeast Asia and

Afghanistan: An Update, Dep't St. Bull., Dec. 1982; Holdridge,

Developments in Indochina, Dep't St. Bull., Apr. 1983, at 41, 42.

i

6. See supra note 1; reprinted in Stockholm Int'l Peace Research
Institute, Arms Control: A Survey and Appraisal of Multilateral
Agreements 64 (1978) (hereinafter SIPRI).

7. See supra note 2; reprinted in SIPRI, supra note 6 at 103.

8. Id. at 103-4 (Article I of the Biological Weapons Convention).
9. Id. at 104 (Article III of the Biological Weapons Convention).

10. The Geneva Protocol refers only to uses. Id. at 64.

11. Biological Weapons Convention, art. 1 §1, id. at 104.
12. Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (merits).

Lon J, wk. 18,

14. Black's Law Dictionary 1512 (4th ed. 1968).
15. Ember, Yellow Rain, Chemical _& Engineering News, Jan. 9, 1984,

at 18.

16. Id. at 19; see also Osborne & Perea, Chemical Warfare: The

Superpowers' Deadly Game, Middle E., Apr. 1983, at 21.

17. This was the label used by primitive H'Mong tribesmen to describe

what they had seen. Bartley & Kucewicz, "Yellow Rain" and the Future of

Arms Agreements, 61 Foreign Aff. 805, 807 (1983). See also G. Evans,

Asia? (1983) (a more extensive discussion of the H'Mong reports).

18. Seeley, Nowicke, Meselson, Guillemin & Akratanakul, Yellow Rain,

eci, Am, Sept. 19385, at 128.

19. Ember, supra note 15, at 16.

2. ££ M m the Presi t Transmitti R ee on th

viet Non ef with Arm ntrol A ment R Dac. N 158,

98th Cong., 2d Sess. (1984).

21. SIPRI, supra note 6 at 54.

~i5~

22% ids at 56.

23» tds. at 54.

24. Id. at 54 (in first paragraph of each Declaration).
25- Id. at 53.
26. Id. at 53 (last paragraph).

27. Id. at 64.

28. at 64.

tH H
je [a

20. » at 64-65.

30. A reservation is "a unilateral statement .. . made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain

provisions of the treaty in their application to that State."' Vienna

Convention on the Law of Treaties, opened for signature May 23, 1969, art.

2 §1(d) (entered into force January 27, 1980), 1980 Gr. Brit. T.S. No. 58

(Cmd. 7964), reprinted in United Nations, The Work of the

International Law Commission 237 (3d ed. 1980).
31. Medvedev, The Great Russian Germ War Fiasco, 87 New Sci. 360
(1980).

32. Biological Weapons Convention, Art. III, supra note 2. Published
in SIPRI, supra note 6 at 104.

33. Ember, supra note 15, at 26.

34. Id. at 104.

35. Id. at 104.

36. Id. at 104.

37. King, The Threat and Fallacy of a Biological Arms Race, Gene

WATCH, May-Aug. 1985, at 14, 15.

38. SIPRI, supra note 6 at 104.

39. See H.R. 7977, 96th Cong., 2d Sess. (1980).

STAR WARS VS. INTERNATIONAL LAW: THE FORCE WILL BE AGAINST US

by

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

©) Copyright 1985 by Francis A. Boyle

All Rights Reserved.

The Geneva Negotiations

It is the purpose of this study to analyze the prospects for success
at
during the current round of negotiations between the United States and the

Soviet Union at Geneva over nuclear and space weapons. These negotiations
LL pa SS LS

“involve three interrelated components. First, negotiations on President

TS
Reagan's so-called Strategic Defense Initiativ (SDI),>which involve new

antiballistic missile technologies in space and on the ground as well as

anti-satellite weapons. Second, (strategic nuclear arms reduction talks,

which, in essence, are a continuation of the previous set of negotiations
on this subject between the United States and the Soviet Union that were

broken off by the latter in December of 1983 (i.e., START). And third,

ee
ae ae eee tate or intermediate nuclear forces (INF),

which are a continuation of a separate set of negotiations between the
United States and the Soviet Union that also took place in Geneva but were
broken off by the latter in light of the decision by the Federal Republic
of Germany to permit the deployment of U.S. Pershing 2 missiles there in
November of 1983.’

Thus, all three elements of the race between the two superpowers to
deploy new nuclear arms and to develop space weapons have finally been
incorporated into one set of negotiations. However, there exists a major
conflict between the respective positions of the Soviet Union and the
United States concerning the nature of the interrelationship among these
three components of the current round of negotiations at Geneva. The
Soviet Union has taken the position that in light of an agreement reached
between then Foreign Minister Andrei Gromyko and Secretary of State George

Shultz, the three aspects of the problem must be considered in their

-

interrelationship.* In other words, apparently, success in one area

will depend upon progress in all other areas; so an inability to reach an
agreement in one area will presumably preclude an agreement in another
area. On the other hand, the United States government takes the position
that progress in one area should not be dependent upon progress in the
other areas; and therefore, supposedly, if an agreement could be attained
in one area it should not be dependent upon or held hostage to any
agreement in another area.”

Whether we like it or not, however, the Soviet position on this matter
seems to-be{a_better-encapsulatton-of-the-avtual-reality of the
sttuatton. It will prove to be impossible to make progress in one area
without making progress in all other areas. In particular, the Soviets
are correct to adopt the position that progress in the area of reducing
strategic and intermediate nuclear forces will in fact prove to be
impossible unless there is a settlement on the SDI component of the
negotiations. And the Reagan administration is not only wrong but indeed
deluding the American people when it argues that the Strategic Defense
Initiative can go forward without exercising any adverse impact upon the
strategic and intermediate nuclear force negotiations with the Soviet
Union.

The reason for this conclusion is the interrelated nature of the
preexisting arms control agreements concluded between the two superpowers
with respect to offensive and defensive nuclear weapons systems. As a
matter of international law, these agreements are inextricably
interconnected with each other. Specifically, it is futile to maintain,
as the Reagan administration has done, that negotiations on reducing

offensive systems can somehow successfully occur while it

sali

contemporaneously ignores or violates currently existing restrictions on

defensive systems.

SDI vs the ABM Treaty

, pa. h. (ru t
This analysis must start with EE igor ST ee that

\¢ Al vy)
when President Reagan eanond Kis so-called Strategic Defense Initiative
Up.
on 23 March 1983,% that—aith~represented nothing less than a formal
/

aj t

—

statement bm the United States government ‘ofmits intention to pursue a
t5 al lend & .

policy that wilt eventually result—in—thecommission-—of numerous material

breaches of the 1972 U.S.-U.S.S.R. Anti-Ballistic Missile Systems (ABM)

Treaty. In other words, the SDI program actually constitutes an

ae repudiation of the ABM Treaty itself. The evidence seems—td

~<-
wrt:

indicate’ that the Soviet Union has interpreted the SDI in this. «ie
ff bots, PF rc

vant be

fashion. ° oe therefore, the Soviets will seaport -tn—kind.
And the monumental ABM Treaty will gradually fall into desuetude even if
not specifically denounced or abrogated by either superpower.

Furthermore, as a matter of international law, we must distinguish SDI

from any atteged Soviet violations of the ABM coealy that foe Reagan
al / LB L, é 4 . ,
administration has deciatier* The latter are mere treaty violations
Lae a i ae,
that coll ubaasltny lainiobeen. and still can be, resolved through the ade

qt

mechanism set up by the ABM Treaty itself to deal with such allegations:
namely, the Standing Consultative Commission (SCC).’ By comparison, SDI
dees™tiot=s:tand-on=the»same" Tegal footing-as..these alleged Soviet
violations—beeause—the~former,—unlike the lattey,| comstitutes—an_

a)
WY

—_ -  _" ‘ :
anticipatory repudiattenm-of the entire treaty,piscass—itce?t Moreover,

“

i
j

i
i

a

-

the Reagan administration has not made a good faith effort to address
these issues within the established confines and procedures of the scc.°
The Soviets quite rightly feel as if they were either tricked or

misled by the Reagan administration when it proclaimed the SDI in March of

t) 4 ha ; LO hs Vp
1983. This—is—due.to_thefact.thay’ the ABM Treaty came=up/ for review itl

a =
LAM

fas al its terms dusing—the—yeas—ef 1982.° ae ode oe that
review process, the Reagan administration undertook a thorough examination

of all allegations of Soviet violations of the ABM Treaty and, in light

Fed
—

— Ur bo 4G)

{ ‘theseed, whether er not—the ABM—Treaty was still in the national interest

Le WAH drow fro Ks > ae a
of the United States of—America./ At—the—end—of—this—review—process{ the

uot le dk oF,
Pentagon recommended to the White House that—theUnited—States government

| continue_to-adhere tothe ABM Treaty ° Hence, no action was taken by

the United States government to discontinue the life of the ABM Treaty in
1982, as it was entitled to do at the time.’* And the ABM Treaty would
not formally come up for such review again until 1987.°7

Nevertheless, less than three months after the expiration of the
established review period for the Treaty -— during which time it could
have been easily terminated -- President Reagan announced the Strategic
Defense Initiative that in essence anticipatorily repudiated the ABM
Treaty. The President proceeded on his own accord and against the advice

sol tte Pentagon and without the knowledge of any of his top

foreign affairs and defense advisers.'* From all the published reports,
it seems that the SDI was really the pet-project of Dr. Edward Teller of

the Lawrence Livermore nuclear weapons laboratory. It was Teller who sold

the idea to the President in a private meeting during the—eourse of a
AM S,

4inner—engagement _at—thd White House. **

oe

As originally proclaimed by the President and later described by his
miraculously converted advisers, the so-called Star Wars program was to
involve the research, development and testing of a variety of advanced
land-based and space-based ABM technologies.'* Soon thereafter,
however, two former high-level U.S. diplomats and international lawyers
who were involved in the ABM Treaty negotiations (i.e., Gerard Smith, Head
of the 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.’*° It is clear from
the negotiating history of the ABM Treaty that the dividing line between
permissible "research" and impermissible "development" and "testing" of
space-based ABM systems or components was the capability to verify the

latter by so-called "national technical means" (i.e., reconnaisance
satellites).*’

Thus, both Smith and Rhinelander expressed their formal legal opinion
that the SDI program as currently envisioned constituted an anticipatory
breach of the ABM Treaty itself. In reaction to these charges, the Reagan
administration quickly changed its public rhetoric to claim that the SDI
program would 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.'*

For example, in the Spring-of 1984, pursuant to the SDI program, the

Pentagon tested their so-called Homing Overlay Experiment (HOE) whereby

they launched a high-energy kinetic impact system atop a Minuteman missile

alien

in the successful intercept of a dummy nuclear warhead sent on a flight
trajectory through outer space.’* Despite its technical virtuosity,
however, this test expressly violated article 6 of the ABM Treaty which
specifically prohibited giving previously non-ABM missiles such as the
Minuteman an ABM capability to intercept strategic ballistic missiles or
their elements in flight trajectory.

More recently, in his 17 September 1985 press conference, President
Reagan stated that the U.S. delegation to the Geneva negotiations could
not even begin to negotiate with the Soviets over whether or not to impose
any restrictions on the research, development and testing of SDI systems
or components, though he would permit negotiations over their ultimate
deployment. But the ABM Treaty had already and quite clearly prohibited
the development, testing and deployment (though not research upon) SDI
systems and components. Here the President's own words made a mockery of
the Reagan administration's claim that SDI can be conducted in a manner

that would not materially breach the ABM Treaty.

SDI vs. SALT I and SALT II

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, testing and development of the the Star Wars program
with the Soviets, and to obtain their overall acquiescence in the SDI
program if possible. Essentially, this means that the United States

delegation is attempting to procure Soviet agreement to either the formal

sane

or informal abrogation of the ABM Treaty itself. Fortunately, the Soviets
have so far adamantly refused this implicit American overture to abrogate
the ABM Treaty. And it is perfectly understandable why they should refuse
to do so.

The Soviets realize full well that if the ABM Treaty is either
formally or informally abandoned, then negotiated restrictions on
strategic and theater nuclear weapons systems by the two superpowers will
prove to be impossible to obtain at Geneva. Once again, this is because
of the integrally related nature of the ABM Treaty, which imposed severe
restrictions upon defensive systems, on the one hand, and those agreements
limiting and reducing offensive nuclear systems (i.e., SALT I and SALT
II), on the other. The underlying philosophy of these major nuclear arms
control agreements between the superpowers is that it would prove to be
impossible to limit and then to reduce the number of offensive systems if
they did not impose severe restrictions on the number of defensive

° This was a cardinal principle of arms control negotiations

systems.”
that was successfully advanced and established by the United States
government against Soviet protestations during the SALT I negotiations
held under the auspices of the Nixon administration.** After having
accepted this central thesis and thus lived with the ABM Treaty for quite
some time, the Soviet Union is now unwilling to abandon the fundamental
theoretical premise underlying the entire edifice of nuclear arms control
negotiations and agreements between the superpowers for the past two
decades.

The Reagan administration wants them to do precisely that in the pious

expectation that perhaps twenty years from now there might be developed a

defensive solution to the offensive problem. The real question, then,

-

becomes whether the pie-in-the-sky dream of SDI twenty years from now is
worth destroying all the major nuclear arms control agreements that have
so far been concluded between the United States and the Soviet Union; or
whether it is better to abandon SDI now in order to maintain and then
improve upon the arms control agreements we already have outstanding with
the Soviets. In the opinion of this author, the latter alternative makes
the most sense: "A bird in hand is worth two in the bush."

If the 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.** As mentioned above,
this interconnection was the idea of the United States, not the Soviet
Union. The SALT I negotiations resulted in two agreements: the ABM
Treaty, and the SALT I Interim Accord that froze the number of ICBM and
SLBM launchers.** The latter expired after five years in accordance
with its terms; yet both parties decided to act in a manner not violative
of the SALT I Interim Accord indefinitely upon the condition of reciprocal
behavior by the other party.°* Hence the SALT I freeze on ICBM and SLBM
launchers is still in effect today.

The major problem with the SALT I Interim Accord was that it gave the
United States a lower number of strategic nuclear delivery vehicle
launchers than the Soviet Union.** (Remember that SALT I and SALT II do
not count missiles but launchers because only the latter can be adequately
verified by so-called national technical means.)** At the time this
inequality did not bother the U.S. Joint Chiefs of Staff very much because
they were busily engaged in the process of MIRVing the missiles they

already had, which would greatly overcompensate for a slight U.S.

=iQ=

7 On the other hand, the

numerical inferiority in missile launchers.”
U.S. MIRV program then led the Nixon administration to improvidently
conclude that the SALT I negotiations should not deal with the emerging
issue of MIRVs by either severely limiting them or else prohibiting MIRVs
outright. 7°

In retrospect, everyone in the United States has agreed that this was
an incredibly shortsighted decision because Soviet missiles were obviously
much larger than U.S. missiles and thus theoretically could accommodate

7 At the time, however, this inequality in the

more MIRVs per missile.”
number of launchers between the United States and the Soviet Union that
was permitted by SALT I created an enormous furor in the United States
Congress,*°° and especially in the Senate where any future nuclear arms
control agreement between the superpowers would have to be approved by a
two-thirds vote. This inequality led Senator Henry Jackson to sponsor the
passage of legislation requiring that all future nuclear arms control
agreements between the United States and the Soviet Union must be
concluded upon the basis of equality in numbers.”*’

This latter objective was accomplished in 1974 by means of the
Vladivostok Agreement concluded between President Ford and General
Secretary Brezhnev. ~°* Retrospectively, this agreeement essentially
continued the SALT I Interim Accord freeze, and incorporated other
important elements of SALT I into it.** Prospectively, the Vladivostok
Agreement served as the basis for the subsequent negotiation of the SALT
If Treaty between the United States and the Soviet Union. Vladivostok

established an equal overall aggregate ceiling of 2400 strategic nuclear

delivery vehicle launchers (ICBMs, SLBMs and heavy bombers) and a sublimit

= ie

of 1320 multiple independently targetable reentry vehicles (MIRV) systems
for each side.**

The unratified, but still observed, 1979 SALT II Treaty is built upon
the Vladivostok Agreement, which in turn incorporates the SALT I Interim
Accord.*° So if the ABM Treaty is abrogated because of SDI, the SALT I
Interim Accord falls by the wayside,** and with it the Vladivostok
Agreement and SALT II, which the two superpowers say in public that they
are still observing on condition of reciprocity. Hence, the SDI will
result in the formal or informal termination of the ABM Treaty, the SALT I
Interim Accord, the Vladivostok Agreement, and the SALT II Treaty. In
addition, SDI would probably violate the 1967 Outer Space Treaty, which
prohibits the deployment of some of the SDI's envisioned weapons of mass
destruction in outer space. It appears from a public description of some
of the SDI weapons that they are intended to be given both an offensive
and a defensive capability.’

Furthermore, testing some of the SDI's proposed technologies would
violate the pathbreaking 1963 Limited Test Ban Treaty, which specifically
prohibits any type of nuclear explosion in outer space. One of the most
favored SDI technologies at this time is the so-called x-ray laser, which
depends upon a nuclear explosion to generate it.** Clearly, the testing
and deployment of an x-ray laser in outer space would constitute a
material breach of the Limited Test Ban Treaty and the Outer Space
Treaty. Even more immediately, it was the Reagan administration's
Supposed need to test the x-ray laser that served as a pretext for its
rejection of the Soviet invitation to duplicate their imposition of a

unilateral moratorium on the underground testing of nuclear weapons during

the latter part of 1985.°°

eee

=| =

SDI as a First-Strike System

Quite obviously, the SDI is not a blueprint for the elimination of
nuclear nila Rather, 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/Delta
5, and the Army's Pershing 2.*° To this formidable arsensal should also
be added the new MK12A warhead for the MIRVed (3 warheads) Minuteman III
ICBM system that can also exercise a substantial counter-silo capability.
These developments alone would be an astounding and truly disturbing
situation even apart from U.S. programs to deploy the B1-B bomber, the
Stealth bomber, air, sea and ground launched long-range cruise missiles,
as well as the proposed Midgetman ICBM missile, whose deployment would
clearly violate the SALT II Treaty.*'

This author is confident that Soviet leadership could not even begin
to comprehend why the Reagan administration, 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

m a — wa ee ee
over the so-called "window of vulnerability" in order to generate the

requisite high degree of popular support necessary 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

Sarre

—

Soviet ICBM silos and hardened command centers.

Lh a eR

From the Soviet perspective, therefore, an essential precondition for

the Reagan administration's pursuit of such a first-strike strategic

te:
oe ee

nuclear weapons capability becomes the construction of a seemingly

effective antiballistic missile system in order to defeat any anticipated

retaliatory attack by the residue of Soviet nuclear forces. As far as the
Soviets are concerned, SDI only makes sense if it is part of a
first-strike strategy adopted by the United States government.** This
is because of the unequal disposition of the Soviet strategic nuclear
forces between land-based, submarine-based and air-based weapons in
comparison to the American triad. The Soviets have about 75% of their
strategic nuclear forces on ICBMs, 5% in strategic nuclear bombers, and
20% on submarines, whereas the figures for the United States are about
25%, 5%, and 50%, respectively.*°

In the event of a U.S. first-strike by means of the aforementioned

———..

systems, the United States government would be able to destroy the 75% of
their strategic nuclear forces on ICBMs,the 5% of their strategic nuclear
forces on bombers, and the 60% of their SLBM forces that are in port at
any time.** In other words, only a miniscule 8% of Soviet strategic
forces that were on SLBMs at sea would survive a U.S. first-strike -- at
least in theory. A good portion of that 8% would be destroyed by superior
U.S. anti-submarine warfare capabilities.** That would then leave a

percentage significantly less than 8% of Soviet strategic nuclear forces

that a U.S. SDI system would have to destroy in the event that the Soviets

=

decided to retaliate. Furthermore, this scenario assumes that the Soviets
would even have the capability to retaliate in a meaningful way despite
the massive and repeated destruction of their nuclear command centers and
satellite communication systems.

The important point here, however, is that although the SDI might very
well be capable of destroying significantly less than 8% of the residue of

| Soviet nuclear forces remaining after a U.S. first-strike, it could

forces launched by means of a Soviet first-strike upon the United States.
Hence, from the Soviet perspective, the conclusion is quite clear that the
SDI only makes sense as part of developing an offensive first-strike
capability by the United States of America.
There is no reason to believe that the two superpowers will be able to
—e

agree upon a drastic reduction in their arithmetically increasing

offensive nuclear arsenals during the next twenty years because of SDI

Pe ee eiaiatee

eee re
a iene

| certainly not destroy a substantial percentage of their offensive nuclear
when historically neither one of them has ever demonstrated a serious
inclincation to dismantle significant numbers of top-of-the-line offensive
nuclear forces for any reason since the dawn of the atomic age. Indeed,
the logical response of the Soviet Union to SDI will be to increase both
the number of strategic nuclear delivery vehicle launchers and the number
of warheads per launcher to the absolute maximum.** Ironically,
therefore, the theoretical success of SDI as a defensive or
non-first-strike weapon aA pastel depeniia upon a contimnation of the SALT
I and SALT II limitations on launchers and MIRVs, which in turn ultimately
depend upon a continuation of the ABM Treaty, which in turn must be

formally or informally abrogated to pursue SDI.*’ The Reagan

administration is promising a simplistic and chimerical technological

ea

wf Bes

solution to what is fundamentally a complex and well-nigh intractable

political problem.

SDI at Geneva

For these reasons, it must be made emphatically clear to the Soviet
Union that the United States will not terminate the life of the ABM Treaty
when it comes up for review in 1987 or beyond. That objective would
require the formal termination of the Star Wars program. Yet genuinely
basic laboratory research could still be conducted under the terms of the
ABM Treaty as a hedge against some technological development that might
encourage either side to break out of its restrictions on six months
notice as permitted by article 15. But unless the Reagan administration
disavows the Star Wars program immediately, there can be no progress in

negotiating arms control and reduction agreements with the Soviet Union on

fi

TI sep

aii

Agsuming—that the Reagan administration adopts the-aferementtoned

\ oe 6 ew e

e WY position om=SBS in the triad—of negotiations new=teking«pkacer ii Geneva,

|
strategic and intermediate nuclear forces.
| it might..then.c=.at-beast=in.theory-——~beepossible.for-theré” to Occur

i A 7)"
progress on the limitation and reduction of beth(strategic and theater

Le

4° 1s er te rt York HW) pride
; — However, this would

require a re-evaluation by the United States government of the positions
it has consistently pursued in these latter two sets of negotiations and
during the course of their predecessors.** The Reagan administration's
prior proposals in both the strategic and theater nuclear force
negotiations (i.e., START and INF, respectively) were completely

non-negotiable in the first place and probably not made in good faith.*?

=t

The Soviets undoubtedly look upon SDI as an attempt by the Reagan
administration to generate a new source of leverage over them in order to
force them to accept the prior U.S. non-negotiable positions on strategic
and theater nuclear forces. I doubt very seriously that the Soviets will
give up anything significant on strategic and theater nuclear forces in
return for Reagan administration concessions over SDI. The fact of the
matter is that the Soviets had already foreclosed SDI in the ABM Treaty.
From their perspective, there is no need to give further concessions to
the United States government for living up to the terms of a treaty that
the two superpowers had already been observing from 1972 through 1982.

As a matter of principle, the Soviets would be quite correct to refuse
to offer any concessions merely because of the Reagan administration's
threat to abrogate the ABM Treaty by going ahead with SDI. And as a
matter of policy, we should all hope that the Soviets will not succumb to
the Reagan administration's importunate overture to "amend'' the ABM Treaty
out of existence so that each superpower can pursue an SDI program. Only
time will tell whether or not the Soviets can be seduced by Reagan's

phantasmagorical allure of SDI.

SALT II at Geneva

A good deal has emerged into the public domain concerning the
respective positions of the United States and the Soviet Union during the
current round of negotiations at Geneva over strategic and theater nuclear
weapons. Since the two superpowers changed their positions quite rapidly
in anticipation of the Reagan-Gorbachev Summit of November 1985 and

because it is impossible to determine what proportion of this apparent

al Pe

momentum was attributable to pure propaganda reasons, no point would be
served here by presenting a detailed examination of the latest set of
offers and counteroffers on both strategic and theater nuclear

forces. °° Nevertheless, it would be worthwhile to examine the overall
development of the superpowers' respective positions on START and INF from
the outset of the Reagan administration until these two sets of
negotiations were broken off by the Soviets in late November and early
December of 1983. That task should enable us to delineate the contours
for determining what would constitute good faith negotiations over START
and INF for the immediate future.

With respect to the strategic nuclear force reduction talks (START),
the Reagan administration called for massive reductions in the number of
Soviet ICBMs in addition to Soviet reductions in so-called missile
throw-weight and in the number of warheads.”* It was a great stroke of
tragic irony that the Reagan administration's START proposals seemed to
represent a reincarnated version of the proposals first put forth to the
Soviet Union by the then recently inaugurated President Carter in March of
1977.°* Carter, too, unilaterally called for substantial qualitative
limitations on and quantitative reductions in the Soviet ICBM force. This
would have redounded to their distinct strategic disadvantage because of
the Soviets' preponderant reliance on ICBMs for the composition of their
strategic nuclear forces (75%) in comparison to the ICBM portion of the
U.S. triad (25%).°°

At that time, the Soviet government took the position that the Carter
proposals were inconsistent with the 1974 Vladivostok Agreement concluded
between Ford and Brezhnev that had already established the parameters for

the subsequent negotiation of the SALT II Treaty. Hence, the Soviets

=~

wah ae

adamantly refused to negotiate over Carter's proposals. Eventually,
Carter had to give in, withdraw his drastic reduction proposals, and
return to the Vladivostok Agreement. But nine months of precious
negotiating time were wasted going through this useless and predictably
futile exercise. The lesson of the Carter experience clearly indicated
that in negotiating strategic nuclear arms reduction agreements with the
Soviets, past gains must first be consolidated in order to make future
progress.

That lesson was either purposely ignored or conscientiously perverted
by the Reagan administration during the formulation and presentation of
its strategic nuclear arms reduction proposals (START) at Geneva.°*

Reagan was elected on the claim that the SALT II Treaty was somehow
"fatally flawed,''°* even though once in office his siviialgtcuntlen ‘teunth
the seemingly paradoxical position that it would continue to abide by SALT

° On the basis of Carter's

II so long as the Soviets did the same.”
experience, the most reasonable course of action for the Reagan
administration to have pursued would not have been to propose radical cuts
in the numbers of Soviet missiles and warheads; but rather simply to
negotiate incremental improvements within the framework of the nuclear
arms control treaties as they currently existed. Specifically, this
approach to the objective of obtaining strategic nuclear arms reductions

would have required the Reagan administration to have ratified the SALT II

Treaty as it stood on the books. The Soviet Union had signed and ratified

ee Rs aaa il

eS +

SALT II, whereas the United States had signed the treaty but refused to

ratify it.°’ These facts decisively repudiated the Reagan

administration's incessant refrain that the Soviet Union had not

aid

demonstrated a genuine commitment to the serious pursuit of strategic
nuclear arms control limitations and reductions.

Despite whatever the Reagan campaign and administration said, SALT II

——

was essentially a good treaty that was defeated primarily for political
reasons, and not on its merits alone. This conclusion can be
substantiated by an examination of the hearings on the SALT II Treaty that
were conducted by the Senate Committee on Foreign Relations during the
summer of 1979.°* At the conclusion thereof, even critics of the treaty
grudgingly conceded that its leading and most articulate opponents
organized into the Committee on the Present Danger had failed to make
their case against its ratification on the ground that the treaty somehow
failed to "close" a hypothetical "window of vulnerability"; and that the
Carter administration had basically proven its case that whatever the
treaty's imperfections, the United States would be better off with SALT II
than without it. Ultimately, SALT II was never approved by the Senate
because the treaty became a wel Steal football in the 1980 presidential
election campaign; was undermined by the controversy over the non-existent
Soviet "combat brigade" in Cuba; became a hostage to the Iranian hostages
crisis; and was anticipatorily breached by NATO's December 1979 decision
to deploy Pershing 2 rockets and ground-launched cruise missiles in
Europe. The already dim prospects for the treaty's ratification by the
United States government were finally extinguished by the decision of the
Carter administration to withdraw SALT II from further consideration by
the Senate in reprisal for the Soviet invasion of Afghanistan at the end
of 1979.

Whereas SALT I froze the number of strategic nuclear delivery vehicle

launchers, SALT II established a limit on the number of MIRVed systems

~20-

permitted for each vehicle. Remember that the SALT I negotiations did not
deal with the MIRV question at the instance of the United States
government. The Pentagon had argued that MIRVs were necessary in order to

penetrate an emerging Soviet ABM technology.°®

But when the ABM Treaty
imposed severe constraints on the Soviet ABM program, the rationale for
the U.S. MIRV program disappeared. Yet the strategic problems created by
MIRVs remained to be dealt with in the SALT II negotiations.

In reality, however, the SALT II Limitations on MIRVed systems existed
in theory only, because the treaty permitted each superpower to build up
to a certain number of MIRVs where they were then supposed to stop.°°
In essence, the 1979 SALT II Treaty really represented a superpower
agreement to increase the number of MIRVs to a higher level and then to
freeze the number of MIRVs at that substantially increased number. The
SALT II limitations on MIRVed systems would functionally come into effect
as of about December 1985 or so when the SALT II Treaty would have expired
in accordance with its own terms anyway. Nevertheless, there was always
the reasonable expectation on the part of both superpowers that the SALT
II limitations on MIRVs could have been informally extended on condition
of reciprocity as had occurred with the SALT I freeze on launchers. In

this manner, the SALT II Treaty could have drawn the line on the

superpowers’ respective MIRV buildups sometime after 1985.

START at Geneva

Reagan's START proposals could only have succeeded -- if at all —-
within the context of a SALT II Treaty that had been ratified by the U.S.

government. Strategic arms reductions could then have occurred if both

eit ac

superpowers had agreed to modify a ratified SALT II by significantly
lowering its numerical limitations on strategic nuclear delivery vehicle
launchers and its sublimitations on MIRVed systems, as well as upon an
indefinite extension of the life of such a ratified treaty as so amended.
Next, it would then have been possible for the two superpowers to have
negotiated over the creation of some formal mechanism that would have
mandated a percentage reduction in the SALT II limitations on launchers
and sublimitations on MIRVed systems on a periodic basis -- e.g., 5-10%
per annum.°*?

In the first round of START negotiations at Geneva, the Soviets had
indicated that they were prepared to proceed in this manner.°* The
Russians proposed an equal ceiling for both superpowers of 1800 long-range
Missiles and bombers. This figure would have required the Soviet Union to
reduce from its then current level of 2500 and the United States from
2000; in other words, a 28% reduction for the Soviets, and only a 10%
reduction for the United States. In addition, the Soviets expressed a
willingness to establish an overall ceiling on the number of nuclear

warheads carried by long-range missiles and bombs carried by bombers.

Furthermore, the Soviets stated a desire to retain "'the best elements of"

eee
ae eS TOL Tis o> mee ey

es

SALT II and a readiness to consider modifications of the treaty.

The Soviet START proposals constituted an eminently reasonable basis
At A

en ee gph 4 Ae ngetigic Big cteeit =

from which serious negotiations could have commenced .4 Instead, the Reagan
administration flatly rejected their forthcoming overture because it
stubbornly insisted that the SALT II Treaty was "fatally flawed" in some
mysterious manner. The time had long passed for the Reagan administration

to have abandoned the rhetoric of the Reagan campaign against Carter and

SALT II.

rl i

,

= ae

If any new strategic arms reduction agreement was to be reached
between the United States and the Soviet Union, it should have been built
upon the theoretical foundation and the procedural edifice of the SALT II
Treaty. It was about time for the Reagan administration to have publicly
acknowledged this undeniable fact of international life. Conversely, the
Reagan administration's obstinate persistence in its irrational opposition

re
ORs hi PM HE

to the formal ratification of SALT II indicated that it was not

Cg

aa negotiating.in.good faith with the Soviets at Geneva over the reduction of

strategic nuclear weapons.

The Need to Ratify SALT II

This observation leads inevitably to the following question: Why
should the United States government ratify SALT II when both parties have
stated that they are prepared to act in a manner not inconsistent with the
terms of the treaty on condition of reciprocity? The correct answer is
that the deployment practices pursued by both superpowers under the regime
of an unratified treaty has not, will not, and can not succeed in curbing

their respective offensive nuclear weapons modernizations and buildups

which are currently underway. Although both sides have said that they
have acted in a manner not inconsistent with the terms of the SALT II
Treaty, that was pretty easy to do since the SALT II limitations were
purposefully designed to exercise no major restraining influence upon the
rapid modernization and deployment of offensive systems by either side
until sometime after the SALT II Treaty was scheduled to expire at the end

of 1985.

4...

This deceptive anomaly was well known to both superpowers at the time
ne
SALT II was signed in June 1979.°* After the U.S. government repudiated

the treaty in January 1980, there have been several indications emanating
from the Pentagon that the statement that the United States government was
acting in a manner not inconsistent with the terms of the SALT II Treaty
on condition of reciprocity was meaningless.** In other words, in its
design and acquisition of U.S. nuclear weapons programs, the Pentagon has
essentially proceeded as if the SALT II Treaty was a nullity in the first
place.*°

The American people have heard numerous and repeated allegations by
the Reagan administration that the Soviets have committed a pattern of
material breaches of the SALT [II Treaty. But the fact of the matter is
that the Soviet Union did sign and ratify SALT II, whereas the United
States government signed the treaty and refused to ratify it on totally
non—meritorious grounds. If the Reagan administration wished to properly
raise allegations that the Soviets had violated SALT II, then the Reagan
administration should have ratified SALT II. If it did not wish to ratify
the treaty, then it could not fairly charge the Soviets with violations of
SALT II. The so-called informal agreement not to undercut the terms of
the treaty was legally, politically, and strategically meaningless, except
for public propaganda purposes.

To consider some specific examples: The Reagan administration claimed
that the Soviets continued to encode their telemetry for missile tests
despite the provisions of SALT II to the contrary.°*® But the Soviets
took the counter-—position that if the Reagan administration wanted them to

stop encoding vital telemetry, then the U.S. government must first ratify

SALT II in order to procure this benefit of the treaty. In the absence of

rou de a

the Reagan administration's ratification of SALT II, the Soviets asserted
a perfect right to continue encoding their missile telemetry.

The same type of two-faced arguments were advanced by the Reagan
administration with regard to the SS-16 missile.*” The SS-16 ICBM was
specifically prohibited by the SALT II Treaty because this three-stage
missile was virtually indistinguishable from the two-stage IRBM SS—20.
However, since the U.S. government never ratified SALT II, the treaty's
prohibition on Rentuntoed: al the SS-16 became a legal nullity. Hence,
those Reagan administration officials who lamented intelligence sources
indicating that the Soviets might have deployed SS-16 missiles had only
themselves to blame for opposing the ratification of SALT II.

No purpose would be served here by going through the Reagan
administration's extensive laundry list of alleged Soviet violations of
SALT II and refuting Siem in, sx pada Epa misixtn: tk “lan cme .
indicated above. Suffice it to say that by refusing to ratify SALT II

while at the same time claiming to act in a manner not inconsistent with

its terms, the Reagan administration attempted to and has generally

ty,

<r

succeeded in having its cake and eating it too. Such a hypocritical

posture~permitted the Reagan administration to cite alleged Soviet
violations of SALT II as grounds for justifying its own inexcusable
refusal to ratify the treaty and to negotiate in good faith with them over

genuine strategic nuclear arms reductions at Geneva. In addition, the

Reagan administration's sanctimonious claim that it had lived up to the

anh Scan,

meaningless terms of SALT II enabled it to convince the U.S. public and
Congress as well as the governments and peoples of NATO that the U.S.
government really did support the objective of negotiating meaningful

nuclear arms control and reduction agreements with the Soviets at Geneva.

well

By means of this subterfuge, the Reagan administration cleverly defused

domestic and international public opinion that might have actually
pressured the U.S. government to move in that direction. Meanwhile, the
Pentagon proceeded full speed ahead with a massive modernization and
buildup of America's offensive nuclear arsenal, together with research,
testing and development of defensive systems in explicit violation of the
ABM Treaty.

As Machiavelli once advised his Prince: "But one must know how to
disguise this [deceitful] nature well, and how to be a fine liar and
hypocrite; and men are so simple-minded and so dominated by their present
needs that one who deceives will always find one who will allow himself to
be deceived.'"°* The Reagan administration's rank hypocrisy)in this
matter has been quite successful in fooling everyone but the Soviets, who

— ,
are the only ones that really count. They have responded in a similar
fashion. Sensecnsanl sy. what the world has witnessed today is the
progressive unravelling of all the minimal restraints that have so far
been imposed on both the offensive and defensive nuclear weapons systems
fielded by the two superpowers.

Both superpowers have bandied about charges and countercharges of
violations of SALT II and the ABM Treaty in order to justify their
respective programs and counter-programs in the areas of both offensive

and defensive nuclear weapons systems. The stark dilemma confronting the

American people now is (whether they should support the Reagan

—

administration's frenzied pursuit of this spiral of violations and
counterviolations of these treaties; or whether instead they should insist
that their government stop and reverse this dangerous momentum in order to

restore, shore up, and build upon the arms control treaties that have

Din

already been negotiated by the two superpowers: ABM, SALT I, SALT II, the
Threshold Test Ban°® Treaty, the Peaceful Nuclear Explosion Treaty,’ °

the Nuclear Non-Proliferation Treaty, as well as the Biological Weapons
Convention. At the very least, the American people must insist that the
United States government reaffirm its commitment to the ABM Treaty and
ratify the SALT II Treaty.

Charges of violations and counterviolations should then be pursued
exclusively through the mechanism of the Standing Consultative Commission
that was established by SALT I. In this fashion, nai Genie auld be
able to hold the other formally to account for alleged violations of these
nuclear arms control treaties for the purpose of preserving the latters'
integrity. By contrast, the Reagan administration's retaliatory approach
to these supposed compliance problems seems to be purposefully designed to
create a pretext for the complete destruction of the nuclear arms control
regime previously erected by the two superpowers utilizing the principles
and techniques of international law and organizations. As handicapped,
defective and imperfect these may be, they constitute the only short-term

substitute and long-range alternative to the increasing risk of a global

nuclear war.

TNF at Geneva

This brings the analysis to the third and final component of the

negotiations over nuclear and space weapons currently being conducted
Ni,

between the two superpowers at Geneva¢ theater nuclear forces (TNF), \

which, in deference to European sensibilities, the Reagan administration

euphemistically renamed intermediate nuclear forces (INF).’* The Reagan

x

administration repeatedly charged that the Soviet Union committed numerous
material breaches of the unratified SALT II Treaty, and the Soviets
responded in kind. Yet, whatever position one takes concerning the
validity of these respective allegations, it was incontestable that the
gravest violation of SALT II had already been committed by the United
States government even before the treaty was ratified by means of
sponsoring NATO's decision to deploy U.S. theater nuclear forces in Europe.

rane

“mortal assault upon the integrity of the SALT II Treaty was

Pe eRe

perpetrated on December 12, 1979, when NATO announced its decision to
deploy 108 Pershing 2 rockets and 464 ground-launched cruise missiles in
Europe starting in 1983 that would be under the ultimate control of the

. Allegedly, this measure was taken for the

United States government.’
purpose of offsetting the anticipated deployment of 300 Soviet SS-—20s,
each armed with three warheads. Yet, alternatively, the deployment of
fast and highly accurate American Pershing 2s in West Germany would also
provide the United States with a seemingly effective "surprise" offensive
first-strike capability against Soviet hardened command centers and
related ICBM silos targeted against the American heartland that were
located within the Soviet Union itself. In other words, despite the fact
that both the Carter and Reagan administrations misleadingly denominated
the Pershing 2s to be "theater" nuclear forces, these intermediate range
ballistic missiles (IRBMs) were clearly intended to serve a strategic
purpose.

U.S. sponsorship of NATO's TNF decision anticipatorily violated
article XII of the SALT II Treaty, providing that "each Party undertakes

not to circumvent the provisions of this Treaty, through any other state

or states, or in any other manner." Furthermore, by its participation in

~28-

NATO's 1979 TNF decision the United States government also willfully
violated the basic rule of customary international law enunciated in
article 18 of the 1969 Vienna Convention on the Law of Treaties: "A State
is obligated to refrain from acts which would defeat the object and
purpose of a treaty when: (a) it has signed the treaty . .. until it
shall have made its intention clear not to become a party to the treaty."
By that time the Senate Foreign Relations Committee had recommended that
SALT II be approved by the entire Senate, but the latter body had not yet
acted on the treaty.

Finally, NATO's 1979 TNF decision also reneged upon an unpublicized
yet crucial element of the bargain struck between President John Kennedy
and Chairman Nikita Khrushchev in order to terminate the 1962 Cuban
missile crisis: Soviet offensive nuclear weapons systems were withdrawn
from Cuba in an implicit exchange for the removal of U.S. Jupiter and Thor
missiles from Italy and Turkey, both members of NATO. Thereafter the
Soviets had a perfectly legitimate and reasonable expectation that
American IRBMs such as the Pershing 2 would not be reintroduced into
Europe.

From this international law perspective, it becomes crystal clear why
the various proposals put forth by the Reagan administration during the
course of the separate TNF negotiations with the Soviets at Geneva
indicated that the U.S. government was not negotiating in good faith. The
so-called "zero option" proclaimed by the Reagan administration in
November of 1981 was simply a soporific thrown to the people of Western
Europe in order to get them to agree to the deployment of the U.S.
Pershing 2s and ground launched cruise missiles toward the end of

1983.’* Remember that NATO's TNF decision in December of 1979 was

~99.

two-tracked: the new TNF would be developed, but negotiations would
simultaneously occur so that hopefully they would not have to be
deployed.’* From all the indications in the public record, it was
obvious from the outset of these negotiations that the Reagan
administration intended to arm to the teeth first, and maybe negotiate
halfheartedly later.

The Reagan administration's non-negotiable TNF proposals violated the
underlying condition upon which the NATO countries had given their consent
to the deployment of the American TNF: that the United States government
would pursue INF negotiations with the Soviet Union in good faith. In
addition, the 1979 NATO TNF decision was premised upon the fundamental
assumption that the United States government would ratify the SALT II
Treaty.’* This act never occurred because of a totally extraneous event
-—- the Soviet invasion of Afghanistan. For these reasons, then, the NATO
countries that had agreed to host the U.S. INF deployments (i.e., Federal
Republic of Germany, United Kingdom, Italy, Belgium and the Netherlands)
were thereafter under no legal obligation to proceed toward the actual
deployment of these new and destabilizing nuclear weapons systems.
Moreover, they would certainly be within their legal rights to demand the
withdrawal of U.S. INF from their respective territories at any time in
the future.

Since the United States government was already forbidden by several
positive rules of international law from introducing Pershing 2s into
Europe, the Reagan administration had absolutely no right to demand that
the Soviet Union dismantle its intermediate nuclear forces (i.e., SS-20s,
SS-4s, SS-5s) in return for a U.S. agreement not to deploy strategic

Pershing 2s and ground-launched cruise missiles in Europe’*® -- the

ann

essence of Reagan's so-called "zero option" and all the subsequent
variations thereof.’’ Furthermore, it was completely nonsensical for

the Reagan administration to have later insisted upon the principle of
exact equality in the numbers of U.S. and Soviet theater nuclear forces in
Europe when Soviet TNF were clearly intended to offset the strategic
nuclear forces targeted against the Soviet Union by Great Britain and
France, both members of the NATO Alliance.’ ®

During the separate theater nuclear force negotiations with the Soviet
Union at Geneva, the Reagan administration stubbornly maintained that the
British and French nuclear forces could not be taken into account.’ ?
Certainly it is true that as a matter of international law the United
States government could not negotiate on behalf of the British and the
French when it came to determining the numbers and types of nuclear forces
the latter intended to deploy ——- at least, without their permission. But
it was absolutely ridiculous to expect the Soviet Union not to take these
systems into account when negotiating an overall agreement on the number
of European—based systems that might be allowed to the United States.

The Soviet demand that British and French nuclear weapons systems
somehow be taken into account during the separate TNF negotiations with
the United States at Geneva was fully supportable by basic considerations
of international law. According to article 5 of the North Atlantic Treaty
of 1949, an armed attack against any one or more of the members of NATO in
Europe or North America "shall be considered an attack against them all"
that requires each of them to assist the member or members so attacked "by
taking forthwith, individually and in concert with the other Parties, such

action as it deems necessary, including the use of armed force, to restore

and maintain the security of the North Atlantic area." The Reagan

= =

administration could never have realistically expected the Soviet Union to
ignore this solemn international legal obligation incumbent upon the
United States, Great Britain and France, both individually and
collectively, to come to the assistance of any other NATO member in the
event of an armed attack perpetrated by the Warsaw Pact.

Consequently, during the separate TNF negotiations at Geneva, it was
eminently reasonable for the Soviets to have taken the position that they
would be prepared to cut their number of theater nuclear forces to the
number of ICBMs and SLBMs deployed by Great Britain and France. On
December 21, 1982, the late General Secretary Yuri Andropov proposed to
reduce Soviet intermediate range ballistic missiles in Europe to the
number of missiles fielded by Great Britain and France (i.e., 162) in
return for NATO's abandonment of its plan to deploy the 572 American
medium range missiles in Europe toward the end of 1983. On May 4, 1983
Andropov modified and improved his proposal to call for equality in the
number of warheads, not just missiles, on both sides of the Euromissile
equation. This was a perfectly reasonable offer that should have served
as a basis for the start of serious negotiations between the United States
and the Soviet Union over the limitation and reduction of theater nuclear
forces in Europe. Yet the Reagan administration refused to even consider
these forthcoming Soviet proposals, dismissing them as mere propaganda.

The deployment of new U.S. theater nuclear forces in Europe did not
represent a "modernization" of NATO's nuclear forces, as the Carter and
Reagan administrations both deceptively proclaimed in public. Rather, the
Pershing 2s constituted a novel, threatening and destabilizing offensive
first-strike counterforce strategic nuclear weapons system that was

directed against Soviet ICBM silos and related hardened command centers in

aida

explicit violation of the SALT II Non-circumvention Clause and the
Kennedy/Khrushchev agreement that terminated the Cuban missile crisis. So
when the Parliament of the Federal Republic of Germany voted to deploy the
Pershing 2 missiles on German territory in November of 1983,°° it was
quite understandable why the Soviets reacted by breaking off the separate
sets of theater (INF) and strategic (START) nuclear force negotiations
with the United States at Geneva. If any future progress was to be made
in renewed TNF negotiations with the Soviet Union, the U.S. government had
to realize that Soviet demands for the removal of U.S. Pershing 2s from
Europe and for equality in the number of TNF systems deployed by the
members of NATO and the Warsaw Pact, respectively, were reasonable and

therefore should have been accommodated.

Conclusion

The above analysis elucidates the contours of what a reasonable and
attainable agenda for pursuing arms control and reduction agreements
between the United States and the Soviet Union would look like during the
current round of nuclear and space weapons negotiations at Geneva. First,
the United States government must reaffirm its commitment to the ABM
Treaty and thus the Reagan administration must repudiate its Strategic
Defense Initiative. Second, the superpowers should negotiate an
additional ban upon NTM-—verifiable research into, and all forms of
development, testing and deployment of anti-satellite weapons systems.
Third, the United States government should agree to ratify the SALT II
Treaty, and immediately accept the outstanding Soviet offer to drastically

cut the numbers of nuclear missiles and warheads across the board by 50%.

ait.

Fourth, the United States government should agree to the removal of
Pershing 2s from Europe. Fifth, the Soviets would be entitled to deploy
the number of intermediate nuclear systems in Europe equivalent to the sum
of British and French nuclear missiles and warheads together with any U.S.
ground launched cruise missiles that might be permitted to remain in
Europe. From the latest set of offers presented by the United States and
the Soviet Union immediately before the Reagan-Gorbachev Summit of
November 1985, it appears that an agreement along these lines could be
readily obtained if the Reagan administration was willing to negotiate in
good faith.

Although the solution is easy to envision, I do not believe that there
is any will on the part of the Reagan administration to move in this
direction. The decision-makers who have formulated the so-called arms
control policies for the Reagan administration have essentially consisted
of individuals drawn from the Committee on the Present Danger (COPD),°*’
who emphatically believe that arms control negotiations with the Soviet
Union were a monumental mistake on the part of the United States of
America. One must remember that their formative experience was the Cuban

ee,

missile crisis, from which they inaccurately concluded that the primary
“factor fat eadbied the United States of America to "prevail" was its
substantial nuclear advantage over its adversary. Subsequent analyses
have indicated that the then extant nuclear weapons equation had little to

* Rather, it

do with the ultimate outcome of the Cuban missile crisis.°*
was the overwhelming conventional superiority that the United States

government could bring to bear upon the situation that led to a

. — 83
"favorable" resolution of the crisis.

flee

Nevertheless, undaunted by history, the COPD members in the Reagan
administration have persisted in their desire for a return to the halcyion
days of American strategic nuclear superiority in the misguided belief
that a perceptible nuclear imbalance in favor of the United States could
somehow be translated into a source of diplomatic leverage over the Soviet
Union during the day-to-day conduct of foreign affairs and in the overall
geopolitical balance of power. In particular, what they are especially
concerned about is the repetition of another international crisis along
the lines of the Cuban missile crisis. In that event, they would like an
American President to have the capability to either explicitly threaten or
else implicitly “signal" the Soviet Politburo that 95% of its strategic
nuclear forces could be destroyed in thirty minutes, and the remaining 8%
or less easily dealt with by means of anti-submarine warfare techniques
and a Strategic Defense Initiative.** Their hope is that the Soviet
Union would then back down in such a future geopolitical crisis just as it
did once before in 1962. Yet such a reckless threat would constitute an
incredible bluff that could very well prompt the Soviets into the
instantaneous adoption of a launch-on-warning policy or, at worst, into
undertaking a preemptive nuclear strike upon the United States. In either
event, it is highly unlikely that the two superpowers could survive
another such monumental crisis without the use of nuclear weapons.

Because of this COPD orientation on the part of all key members in the
Reagan administration's nuclear policy entourage, I do not believe that
there will be any significant progress on nuclear arms control and
reduction agreements between the United States and the Soviet Union for
the foreseeable future -- whether on strategic or theater nuclear forces,

or ABM systems and anti-satellite weapons, using conventional technology

~35—

or so-called exotic and emerging technologies. The real question then
becomes whether or not a new President coming into office in 1989
possessing a genuine commitment to negotiating real arms control and
reduction agreements with the Soviets can make any meaningful difference
after at least ten years of an unremitting and even symbolically
unregulated nuclear and space weapons buildup by both superpowers since
their signature of the SALT II Treaty in 1979. I wish I could be more
apttintatic, but by 1989 it seems that the force of the nuclear arms race
between the United States and the Soviet Union will be totally beyond the
ability of even the best-intentioned leaders to control. 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. The force of the

universe will truly be against all humanity.