Panel Discussion 213

wait until we had actually exhausted all of the remedies available. All that was
necessary was a reasonable assessment of whether we, indeed, were in a situation
of last resort; whether if we were to wait, Saddam Hussein would change his
mind and withdraw from Kuwait.

Other criteria laid down by the just war tradition included the end of a
peace that would promote social order, and the idea that force be used in
accordance with the jus in bello and the canons of discrimination and propor-
tionality.

There’s another very important point to be made here because traditionally,
people who hear the words “just war” often equate it with a notion of wars of
religious fanaticism. Jim Johnson reminds us that even ifa use of force is justified
according to the jus ad bellum, in order for it to remain justified, the action must
still observe the principles of discrimination and proportionality. Otherwise, what
initially began as a justified use of force, can become an unjust war.

Professor Johnson raises the question of whether the work of international
organizations to which States now give some authority to use force, places some
limits on unilateralism. He suggests that indeed it does, but that these organiza-
tions also give States considerable discretion for intervention in two situations:
when there is a specific security threat to the community or a member of it, and
when extreme human rights violations have occurred. Just war tradition, he
admits, is broader than international law in its allowance of the use of force. And
in his view, international law, as was suggested by some of the earlier papers and
comments, has become overly restrictive; a question that we need to debate.

On the practical question of the targeting of individuals, Professor Johnson.
reminded us that even though decapitation of individual terrorist leaders or heads
of State involved in particular crimes of aggression, seems to accord with the
logic of discrimination and proportionality, it also carries several important costs.
It often involves the violation of international and even domestic law. It deprives
the victim of the due process of law. It also runs counter to a strong tradition
against regicide which has deep foundations in principles of social order. It looks
too much like murder. It often involves means that are mala in se, and as he
reminds us, war is not murder.

Father Winters, in his commentary, is extremely uneasy with what he sees to
be one of the premises of Jim Johnson’s paper, which is equating political
legitimacy with democracy. But I think at the root of this unease there is an even
more radical critique which Father Winters poses for Jim Johnson’s thesis and
for some of us here in this room. That is, as he puts it in rather blunt language,
justice is culture specific. Justice is not a universal norm. There may be some
general notions of justice, but at the policy level I hear him arguing that justice
is very much circumstance dependent. That poses some very interesting questions
across not only policy, but philosophical lines.


Index 369

Saddam Hussein: See Hussein, Saddam
Security Council
authorization of war by, 182-183, 226, 284-285, 292
effectiveness of, 81
UN Resolution 636, 150
self-defense, right of, 64
sovereignty of Kuwait, defense of, 222, 229

H

Hague Rules of 1907, guidance on deception in, 230
Haiti, covert activities in, 327
Halperin, Morton, 330
Hamadi brothers, exemption of 1985 TWA 847 terrorists from criminal justice systems, 35-36
Hamilton, Alexander, 288
Head of state, application of just war tradition to, 154
Hegel, national interest from viewpoint of, 93
Hehir, Fr. J. Bryan, 147
Helsinki accord as contributing to downfall of USSR, 37
High seas
intervention on, 79
self-defense of nationals abroad, 71-72
High technology, military culture oriented to, 269
History
See also more specific topics
Americans, absence of historical perspective, 265
unconventional warfare, 3-20
Holy Roman Empire, Louis IX’s struggle to establish sovereign state, 174-175, 209
Holy war, revival of, 151
Homicide: See Murder
Honor, defined, 321
Hopeless resistance by victims, application of comparative justice concept, 190
Horizontal social contracts
intervention, act of, 139-140
sovereignty, justification of, 99-100
Hughes-Ryan Amendment to Foreign Assistance Act, 328
Humanitarian intervention, 78-79
defined, 98
genocidal government, saving others from, 189
meeting just cause criterion, 186, 228-229, 236
‘Human rights
See also specific matters
borders, crossing borders to arrest human rights violations, 217-218
genocidal governments: See Genocide
illegitimate governments, low-intensity conflicts against, 102-104
international law, human rights approach to, 96-98
just cause, expansion of principle of, 259-260
national preference, human rights as matter of, 159
Nicaragua case, effect of, 139-140
obligatio erga omnes, 59
realism’s indifference to, 90-96
sovereignty
core human right, sovereignty as, 248
international law, human rights approach to, 98
Hussein, Saddam
assassination, military commander as legitimate subject of, 143, 273-274
human rights approach to international law, 97-98


Chapter III

State Sovereignty, International Law,
and the Use of Force in Countering
Low-Intensity Aggression in the Modem World

by
Robert F. Turner*

Introduction

he end of the Cold War and the success of Operation Desert Storm have

substantially reduced the likelihood of United States forces having to
engage in hostilities at the upper end of the conflict spectrum. World War III
and an accompanying nuclear holocaust are no longer perceived as serious threats
to our security. Ifthe coming years bring an end to Leninist rule in China, Cuba,
Vietnam and North Korea, much of the impetus behind modern day low-inten-
sity conflict may also be behind us,

Unfortunately, however, there remain a variety of political and para-military
organizations around the world who have either severed their ties to the old
Leninist establishment or who developed independently of that tradition. In
particular, the growing synergism between terrorist organizations and drug cartels
poses a serious threat to the peace of the international community. There are
other low-intensity threats as well.

This paper will provide an overview of the modern law of sovereignty, and
discuss its implications as a constraint on U.S. Government low-intensity conflict
doctrine, and raise a few related issues which might provoke discussion and even.
encourage some new thinking about how we promote peace in a changing
international environment.

The Importance of Reciprocity and
Good Faith in International Law

Before turning to an examination of the historic development of the doctrine
of sovereignty and its modern content, a few words of caution are in order. As
we assess our strategic options, we must resist the temptation to destroy our values
in order to save them. We need to remain cognizant that any new principles of


242 Legal & Moral Constraints on Low-Intensity Conflict

of crisis when you're sitting around the table and trying so very hard to do the
correct thing.

JUDGE SOFAER: Yes. I prefer that view myself, and obviously like to be
invited to those meetings, but as you put it, you have to be very careful in those
circumstances. What I think you're saying implicitly, is that there is a very
circumscribed role for those kinds of factors in terms of what you should feel
free to say to your commanders.

PROF. ECKARDT: I would agree. I think it is very unfair for a lawyer to
enter into the policy debate and misuse the law as a club when the law isn’t the
driving force, One must clearly separate one’s advice as a lawyer and one’s advice
as a staff officer, although they may come from the same person.

PROF. COLL: Bob Turner.

PROF. TURNER: Bill, I want to take you back to Nicaragua for a moment
just because it strikes me as being a typical case of low-intensity conflict. Let me
quickly try to set forth the elements of the argument as I see them, and see where
we disagree.

It seemed to me there was an overwhelming body of evidence that the
government of Nicaragua was trying to overthrew the government, not only of
El Salvador, but of other neighbors. It was training guerrillas, supplying them
with equipment, giving them intelligence advice, money, smuggling airplane
after airplane and boatload after boatload of arms from Vietnam and Cuba, to El
Salvador and so forth. Even the Boland Committee unanimously concluded that
the evidence on Nicaraguan aggression against El Salvador was, I’ve forgotten
the word, but it meant unquestioned. The U.S., subsequent to that, began a
mirror-image campaign of providing aid, training, intelligence advice, money
and so forth, to a group of Nicaraguans to try to put pressure on the Nicaraguan
government to stop its aggression. The mirror image campaign seemed to me to
be a fairly clear case of self-defense. There’s a lot more to it than that, but do you
disagree with what I have said so far? Is the difference a factual one or do you
not think that it’s legal? The government of El Salvador, I think, clearly asked
us for help. Is it that this kind of low-intensity aggression does not warrant
collective self-defense or do you not believe the aggression took place, or what?

PROF. O’BRIEN: The original theory of the case was plausible. This was an
action, rather an unusual one, in which we were in effect exporting revolution
as a self-defense measure. That made me nervous from the outset because I spent
a good deal of the 60s attacking North Vietnam for exporting revolution to


Teson 107

12, See, e.g, the Intemational Court of Justice in the Military and Paramilitary Activities Case (Nicar.v.
USS), 1986 ICJ 101-102 (distinguishing between “most grave” and “less grave” prohibited uses of force in
customary international aw).

13. See Sarkesian, The American Response to Low-Intensity Conflict: The Formative Period, in ARMIES IN
LOW-INTENSITY CONFLICT: A COMPARATIVE ANALYSIS at 19, 21 (Charters and Tugwell eds. 1989),
(showing a continuum of coercion in different types of conflict).

14, Seminal works in the realist tradition include MORGENTHAU, POLITICS AMONG NATIONS (1959);
‘WALTZ, MAN, THE STATE, AND WAR (1959); and BULL, THE ANARCHICAL SOCIETY (1977). I realize,
of course, that I am oversimplifying realism. The doctrine has many variations, yet I deal in the text with the
central and, as far as I know, uniform methodology of national interest analysis.

15, See Hobbes, On Dominion, Chapter XIII, cited by HINSELY, POWER AND THE PURSUIT OF PEACE
51 (1963). See generally HOBBES: WAR AMONG NATIONS (Airaksinen and Bertman eds, 1989). Fora modem
version of this view, see NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES (1983).

16. Fora convincing response to the realists’ moral skepticism, see Cohen, Moral Skepricism artd Intemational
Relations, 13 Phil. & Public Affairs 299 (1984),

17. See infra text accompanying nn. 40-48,

18, These facts are not fanciful: see U.S, v. Verdugo-Urquidez, 939 F. 2d 1341 (1991).

19. Fora discussion of necessity and proportionality, see infra Section VIL.

20. Communitarians have confined themselves to domestic political philosophy. Representative com-
munitarian views are SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982), and Walzer, The
Communitarian Critique of Liberalism, 18 Political Theory 6 (1990). To my knowledge, no one has applied
‘communitarian philosophy to intemational law and relations (Walzer is a curious case: even though he is usually
seen as a communitarian philosopher, his views on war are predominately liberal.) For liberal replies to
communitarianism, Gutmann, Contmsunitarian Critics of Liberalism, 14 Phil, & Public Aff. 308 (1985); and Nino,
‘The Communitarian Challenge to Liberal Rights, 8 Law & Phil. 37 (1989).

21, See works cited supra, n. 20.

22, Any of the essays in Thompson, supra n. 8, may serve to illustrate this point.

23. The seminal work in this regard is RAWLS, A THEORY OF JUSTICE (1971).

24, See Kant, supra n, 2, at 114; see also Teson, The Kantian Theory of Intemational Law, 92 Colum L. Rev.
53, 60-62 (1992).

25, While community may often be seen as defined by national borders, community may or may not
coincide with nations—witness religious communities or the moral community of Europe defined by the
European Convention on Human Rights.

26. See PLATO, THE REPUBLIC, BOOK VII. Elsewhere Plato writes: “The wise shall lead and rule, and
the ignorant should follow,” PLATO, THE LAWS, at 609b. As Karl Popper has shown, the “Socrates” of the
Republic is the embodiment of unmitigated authoritarianism. POPPER, THE OPEN SOCIETY AND ITS
ENEMIES at 131 (2d ed. 1966).

27, Notice that I am talking here about duties, not rights. I take for granted, at this stage of development
of intemational law, that democratic governments have a right to demand human rights compliance from other
governments, and, in some extreme cases, even to intervene by force to help victims of serious oppression. See
generally TESON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988).

28. See Teson, supra n. 24, at 74-81,

29, See TESON, supra n. 27, chapter 6; see also Luban, Just War and Human Rights, 9 Phil, & Public Af. 60
(1980).

30, See generally BUCHANAN, SECESSION (1991).

31. This requirement derives from considerations of autonomy, which apply to acts in defense of others.
‘This is what complicates defense of others as opposed to self-defense. See Thomson, Self-Defense, 20 Phil. &
Public Aff 183, 305-306 (1991). But in international law, self-defense of the State is always defense of others.
‘The government assists the citizens who are being victimized by aggression. And we fight in defense of others
(our fellow citizens) when we repel the aggressor. It follows that, as I have tried to show elsewhere, the rationale
for humanitarian intervention. See TESON, supra n. 27, at 113-114. See also Teson, International Obligation and
the Theory of Hypothetical Consent, 15 Yale J. Int'l. L. 84, 117 (1990).

32, See supra n, 24, at 89-93,

33. Even in the midst of the current global democratic revolution, we can see the endurance of this ruthless
approach: Western Governments befriend the Syrian dictator Hafez Assad and the current Chinese leadership,
on account of spurious “national interest.”

34, We don't even need a very deep theory of morality to condemn the realist’s advocacy of “help to
friendly dictators.” Whether one relies on the universality of human rights (as I do), or on an American or
‘Western communitarian tradition or on pure compassion, the result is the same.

35, See Universal Declaration of Human Rights (1948), U.N. Doc. A/811. For the text see BROWNLIE,
BASIC DOCUMENTS IN INTERNATIONAL LAW 250 (1983).


Coll 9

Although some of the best contemporary minds looked at Machiavelli with
disdain, and the sovereigns of Europe were quick to dissociate themselves
publicly from his teachings, the actual course of international politics in the
second half of the sixteenth century served as a vast canvas on which the practices
counseled by The Prince were richly illustrated. The long struggle between
England and Spain from 1559 to 1604 remains a classic case study in the dynamics
of violent peace and unconventional warfare.!° While Spain sought hegemony
over Europe, England was moved by the desire to stop this hegemonic drive and
break open Spain’s monopoly over the New World.

During the two decades of violent peace and “cold war” that preceded the
outbreak of actual hostilities in 1588, both powers, well aware of the difficulties
entailed in attempting open war against one another, resorted to numerous forms
of unconventional warfare. Elizabeth I encouraged and helped to finance English
expeditions directed against Spanish colonial possessions in the Caribbean and
South America. To the protests of the Spanish ambassador, the Queen responded
by feigning displeasure over, and disclaiming responsibility for, the acts of pillage
and plunder carried out by her unruly subjects. She also looked the other way
while an extensive proxy network developed among English, French Huguenot,
and Dutch privateers to harass the Spanish lines of communication with the Low
Countries across the English Channel. Among the English privateers and their
backers were some of her most trusted counselors and financiers. Religious and
political passions blended with economic motives and Elizabeth’s own larger
strategic objectives in tightening the bonds of this proxy network. The Queen
also actively intervened in the Dutch revolt against Spain by providing sanctuary
for the Dutch rebels, assisting with arms and money (and eventually troops), and
intervening in France’s budding civil-religious war on behalf of the anti-Spanish
faction. Under the leadership of the formidable Francis Walsingham, Elizabeth
also developed an espionage network second to none in Europe.

For his part, Philip II of Spain showed a similar grasp of the potentialities of
unconventional warfare. His ambassadors in London disbursed large sums of
money throughout a wide network of dissatisfied English Catholics willing to
assassinate Elizabeth and replace her with either the Catholic Mary Stuart or
Philip himself. He sent subsidies to prominent Catholic nobles in Scotland, to
encourage them to depose the Protestant James VI and invade England from the
north, Eager to isolate England diplomatically in preparation for an invasion, and
hoping to turn France into a docile Spanish satellite, Philip fanned the fires of
civil and religious discord in France by financing the Catholic League, so that
French power would be unable to assist England at her hour of need. Eventually,
Spanish troops were involved in the French civil war in support of the League.
Meanwhile, on the eve of the Spanish Armada’s attempt to invade England in
the summer of 1588, Philip’s representatives were busy negotiating a possible
diplomatic settlement with the English at Borbourg. The king had made it clear


830 Legal & Moral Constraints on Low-Intensity Conflict

that the CIA “helped destroy democracy around the world” through covert
action. He believed that this, in turn, would result in the destruction of
democracy at home.'°

Asecond variant of this perspective has been advanced by Morton Halperin,
a former senior official of the American Civil Liberties Union and now a member
of President Clinton’s National Security Council staff. He believes that covert
action commits the U. S. to policy initiatives that are not debated publicly and
without giving citizens an opportunity to express their views. This is, in his
constitutional interpretation, inimical to the democratic process.

[Covert operations are simply incompatible with constitutional government and
should be abolished. There is no countervailing national security value that makes
this a hard choice . . . [T]hey are a threat to constitutional procedures and the First
Amendment . . . The conflict between the secrecy of covert operations and the
dictates of the First Amendment should be enough to lead Congress to prohibit
such operations . . . Covert operations breed disrespect for the truth . . . [and] for
the rule of law. Covert operations involve breaking the laws of other nations.
Those who conduct them almost inevitably come to believe they can break
American law as well."

In fact, Halperin believes that secret operations have such a corrupting effect
on the individuals and institutions that engage in them that he recommended
“covert action and spies . . . be banned and the CIA’s Clandestine Services
Branch disbanded.”!* Former CIA analyst, E. Drexel Godfrey, has described this
corrupting effect as the “ethos of intelligence.” He explained it in the following
way:

Years of hardening in the ugly business of source cortrol and penetration of foreign
capitals have surely taken their toll . . . Thus, a picture emerges of a highly
compartmented bureaucracy whose direction has been largely controlled by
officials with long experience in the seduction of human beings and societies. Not
immoral or even without ethical standards themselves, they have lost the habit of
questioning where they should set limits on their official conduct . . . What top
management lacked was the habit of limit setting, the reflex that warns of dangerous
consequences—not of being found out, but of transgressing minimal ethical
standards.”

Like Halperin, Godfrey recommended that the United States refrain from all
clandestine operations and introduce a sense of ethics in the intelligence community.

Use Covert Action As A Last Resort And When There Is A Dire National Security
Emergency

Asecond perspective views covert action as a last resort. It should be employed
only when all else fails and there is a dire threat to the national security of the


188 Legal & Moral Constraints on Low-Intensity Conflict

1789, “Oh, we’ve had it for many centuries, let’s keep it?” That’s what Burke
actually argued. It is an ultraconservative view that we should keep whatever we
have, and I reject it.

The other conceptual problem with taking international law as a touchstone,
is that unfortunately for Professor Nardin’s view, there is no such thing as an
international law that is chiseled on tablets, waiting to be obeyed. As Professor
Reisman and the New Haven school have demonstrated for many years,
international law, the practice of States, the language of treaties, need to be
interpreted. We need to make sense of it. We just cannot say, “Oh, that’s what
international law says.” We have to make sense of it. On the very issue before
us, humanitarian intervention to protect human rights, the practice of States is
open to sharply opposed interpretations, each consistent with the facts. You can
interpret the practice of States of intervening to remedy human rights violations
as carving out a new rule of humanitarian intervention or you can interpret it as
criminal aggression. So, I think in order to interpret it you need to rely on
principles. Maybe not my theory, someone else’s theory, but some theory.

The final remark that I want to make is in response to the last comment you
made suggesting that we would want to impose our morality if it clashes with
what anyone else thinks. Many people disagree with this position, and certainly
I think to some extent Professor Nardin disagrees, but I am simply nota relativist.
I do not believe that whatever some community believes is right, must be
accepted as right. I think there is objective moral truth. In the international arena,
I would make the modest claim that the moral truth is the International Bill of
Human Rights. I'll agree with Professor Reisman’s remark that my views of
philosophy and law intersect there, and I would be happy to accept that as a kind
of a working starting point; the International Bill of Human Rights as the
touchstone of what is right objectively and universally.

PROF, REISMAN: Jack.

MR. MCNEILL: Yes, Jack McNeill, Defense Department.

I was very pleased in the last few minutes to hear 2 number of remarks that I think
do suggest that there is a great difference between the approach of the philosopher
and the approach of those still laboring to understand what international law has to
say in this area, Particularly in the arena of low-intensity conflict where the rules, if
they be rules, are very difficult to discern. There is a great difference I think, not
only in interpretation, but with regard to whether the rules really exist at all. I'm
thinking, in particular, of the opinion of the International Court of Justice in the
Nicaragua case, where the Court in my view, made up new rules that now purport
to limit the right of individual States to engage in self-defense and would also limit
their right to come to the aid of each other, in a case where collective self-defense
would otherwise be appropriate under Article 51. And so, I think Professor Farer’s


Panel Discussion 133

considerations do make it appropriate to consider this theory not only under the
rubric of moral philosophy, but also in terms of its adequacy as a praxis, as a guide
for those of you who, at some point, may have to make the difficult decision
whether to engage in low-intensity operations.

Professor Teson rejects the philosophy of normative realism, which reduces
policy to an expression of interests, and proposes a range of conditions that must
be met if these operations are to be considered morally justified. He demands
that the ends of such actions must be defensible in terms of just war theory. He
also argues that they should not be directed against sovereign States. This becomes
apoint of central importance in the Professor's argument because a distinct theory
of internal legitimacy, developed extensively elsewhere in his work, is employed
to assess the validity of'a nation’s claim to sovereign status. The operations should
also respect human rights. They should be necessary and proportionate, and
comply with minimal forms of decency as to their mode of implementation.

Professor Teson’s invocation of proportionality and necessity converges with
the recommendation that Professor Nardin makes of a practical guideline since
those are the classic criteria of international law for military operations, but they
are standards that are very difficult to meet in low-intensity conflicts. I was struck
when he was speaking by the fact that so much of conventional military conflict
is not massive, simultaneous collisions of two armies, but in fact is a congeries of
many small engagements, any one of which might look very much like a
low-intensity conflict.

Professor Teson concludes that in the world we want to live in there is no
place for tyrants. But, obviously the problem is how we get rid of them, and
that’s where the methods of low-intensity conflict come in. The Professor’s
concern that a number of strategies might violate some principle of moral
philosophy or virtue may be difficult to reconcile with his desire to see the world
rid of tyrants.

Professor Nardin’s critique is very interesting and I think, quite fair, though
I’m not persuaded by all of it. His view is that this moral theory does not provide
a method that is appropriate as a praxis for the lawyer. Instead, he would look
to traditional restraints. But, the traditional restraints include the notion of
sovereignty, which Professor Teson felt he had to develop a method of explaining
away, in certain cases. The traditional approach deals with proportionality and
necessity, and I’m not at all certain that international law provides clear guidelines
for low-intensity conflict in these areas. If it did, I’m not sure there would be
much reason for us to convene for these two days here.

Though Professor Nardin criticizes Professor Teson for his definition of
sovereignty as the active recognition of States which are internally legitimate, he
has another definition that I think is as selective in its way as Professor Teson’s.
He is critical of a notion of sovereignty that would encourage States to judge
each other in terms of internal practices. He suggests that we adhere to a


Printed in the United States of America

This volume is printed on acid-free paper
by William S. Hein & Co., Inc.

Library of Congress Cataloging-in-Publication Data

Legal and moral constraints on low-intensity conflict / edited by
Alberto R. Coll, James S. Ord and Stephen A. Rose.
p. cm. — (International law studies; v. 67)
Papers presented at the Symposium on Low-Intensity Conflict held
April 1992 at Naval War College.
Includes index.
1. War (International law), 2. Low-intensity conflicts (Military
science)—Moral and ethical aspects. 3. United States—Military
policy. I. Coll, Alberto R. II. Ord, James S., 1953-
IIL. Rose, Stephen A., 1948- . IV. Symposium on Low-Intensity
Conflict (1992: Naval War College). V. Series.
JX4521.144 1995
341.6—dc20
95-31337
CIP


Teson 103

operations is that, assuming all the other conditions are met, they are legitimate
only if they are directed against the government itself and its instrumentalities.
This means that the operations may not violate the human rights of the citizens,
nor disrupt their life in common.

The example of Iraq may again serve to illustrate this point. I indicated already
that a legitimate government's assistance to Iraqi citizens who aim to oust their
dictator is morally justified. But let us suppose that the United States contemplates
an operation to destroy the arsenal of Iraq, in particular all those facilities and
materiel that may increase nuclear capabilities. State sovereignty does not
preclude this operation, since it is directed against the government and its
instrumentalities, not against the citizens of Iraq. Recall that the other conditions
must obtain. In this case, the aim—prevention of aggression by a tyrannical
government—is justified,

In these cases, it is important to recall that the citizens have not waived their
human rights nor their right to a State, to a life in common. Therefore, the
operation must respect these rights. It must be directed as narrowly as possible
against the government.

Other situations are relatively unambiguous; for example, help provided to
just revolutionaries against an illegitimate government, or protective action on
behalf of imminent victims of a tyrant’s repression, or rescue missions to protect
nationals in danger.

But even in these clear cases, the subjects of the government have not given
up their State. Therefore, the operation must respect the local institutions
reflective of their life in common. One hypothetical example may help clarify
this principle. Let us suppose that the U.S. Government has located in Cuba a
notorious drug lord, who we believe has committed very serious crimes in the
Unites States. Is the United States morally justified in kidnapping this person
from Cuba? The Cuban government, we shall assume, is illegitimate, but the
Cuban State is not. In other words, Cubans have a right (against foreigners) that
their life in common be respected. This includes institutions such as the judicial
system. So the answer to our question will depend on whether the courts in
Cuba are independent or, on the contrary, subservient to the Castro regime. If
the former, the United States must not act peremptorily and should rely on
regular channels (e.g., request for extradition). If the latter, the courts are not an
institution to administer justice to the Cuban people, but rather a mere instru-
mentality of the illegitimate regime. In this case, I suggest that the United States
may act, provided that the other requirements are met. The justification is that
the United States would be doing no more than capturing a suspected criminal
from the shelter offered by a gang of outlaws.

It must not be forgotten that citizens in the target State have not waived their
individual rights. Therefore, low-intensity operations must respect human rights.
This raises the very difficult issue of people who are killed or injured during an


52 Legal & Moral Constraints on Low-intensity Conflict

those provisions are clearly peremptory norms of international law (jus cogens).
As such, a violation is an offense against not only the target of the use of force
but every other State as well, Since there is universal jurisdiction over violations
of Article 2(4), even if an equity defense could prevent Libya from prevailing in
a claim it would not necessarily guard against a claim by another State that had
not violated the Charter. Nevertheless, in terms of public perceptions of fairness,
the equitable argument is, in my view, a strong one; and to the extent that
arguments of self-defense are questionable it would be useful to accompany them
with an appeal to equity.

Importance of Public and Congressional
Understanding and Support

Before turning to the issue of sovereignty, one other comment may be in
order. No major foreign policy initiatives are likely to succeed in a democracy
unless understood and supported by the people. This same principle suggests the
utility — irrespective of legal requirements”! — of keeping Congress informed
about such initiatives. Further, we must keep in mind that support in other
countries — by governments and the public alike — for U.S. foreign policy
initiatives is valuable and fully justifies the investment we should make in public
information efforts.

Mr. Jefferson was certainly right when he spoke of the importance of having
“the moral right on our side””” as we seek to earn the support of our own people
and those of other countries. Often our policies are clearly just and little
explanation is necessary, but there are frequent situations in which these policies
only make sense to people familiar with the factual background. This is especially
true when force is used in defense against a low-intensity form of aggression, as
often the world community and even our own people will not be aware of an
initial covert campaign of aggression.

For example, few Americans knew the details of Nicaraguan efforts to
overthrow the governments of El Salvador and other neighboring States, nor
was Libyan involvement in State-sponsored terrorism fully appreciated at the
time of the April 1986 U.S. military attack. As a result, a large number of patriotic
Americans were misled into believing that their government was engaged in
unprovoked and illegal aggression in both instances. Even if this opposition does
not block the success of the policies which inspired it, public opposition to
government programs is cumulative and can undermine subsequent unrelated
programs,

This means that psychological/political warfare is critically important to any
sound low-intensity conflict strategy, and those charged with such responsibilities
must either be educated in the law of nations pertaining to the use of armed force
or have ready access to individuals who are highly knowledgeable in this area.


362 Index

sovereignty under, concept of, 56-58, 173
terrorism as without scope of, 198
Checks and balances: See Balance of power
Che Guevara, influence of Sun Tzu’s “Art of War,” 6
Chesterton, G.K., 252
Childress, James F., 151
Chile, US role in overthrow of Allende, 124, 326
China
Manchurian invasion.See Manchuria, Japanese 1931 invasion of
Mao Tse Tung
collapse of Maoist/Dengist “gerontocracy,” 254
“deceptive peasant,” fear of, 166-167
Sun Tzu’s “Art of War,” influence of, 6
‘Tiananmen Square massacre
communitarian realist’s view of, 95
democratic values, evolution of, 221-222
Tibet, covert activities in, 326
Chivalric code: See Middle Ages
“Choice of means” (jus in bello): See just war theory or tradition
Christianity
assassination, Catholic thought on, 195
casus belli, Vatican's view of, 257
democratic views affected by, 10-11
fature of Catholic debate, 261-262
ideological zealotry, challenges posed by, 161, 213
just war tradition, influence on, 147~151, 153
revolution, history of Catholic clergy’s opposition to, 229
Church, Senator, view of covert activities as last resort, 331-332
CIA: See Covert activities
Citizens and citizenship
coordination among civilian and military security forces, 267~271
“deceptive peasant,” fear of, 166-167
defense of citizens abroad: See self-defense of nationals abroad, infra this topic
destabilization, jus in bello applied to, 165~166
discrimination principle (jus in bello), 162~163, 193-195, 232, 256
humanitarian intervention: See Humanitarian intervention
human rights: See Human rights
military force, just war tradition applied to use of, 155~156
noncombatant immunity, survival of, 256-257
rescue missions, justification of, 102-104
self-defense of nationals abroad
Entebbe, rescue at, 282
extension of claim, necessity of, 183, 232, 236
high seas, 71-72
legal analysis, 281-283
support: See Public support
terrorism: See Terrorism and counterterrorism.
U-2 spy planes, civilian pilot used in, 276
Civil affairs, generally, discussion, 320-321
Civilians: See Citizens and citizenship
Civilization, elements of, 87
Civil strife, fomenting, prohibition under Article 4, 57
Civil war
See also specific matters
intervention in, prohibition against, 184~185
‘Clandestine operations
‘competent authority concept, 186-189
covert activities, distinguished, 276



218 Legal & Moral Constraints on Low-Intensity Conflict

insufficiently clear and means different things to different people. Since I believe
that borders have an extraordinarily important cultural and political significance,
a powerful nation like the United States should be very clear in principle about
what it means by an egregious violation of human rights. If we don’t have such
an understanding, our policy can mean anything to anybody. It can mean the
fact that if you don’t approve of this man who’s apparently been dealing in drugs,
it permits you to blow him away. I think that lack of clarity presents an enormous
temptation for a nation with the power that we have. Intellectual clarity in
advance of the crisis is indispensable as a protection for us and for them.

PROF. FARER: Could I just press both Jim and Francis on this one important
point? You James, imagine that there could be reasonably attractive regimes that
aren’t pluralistic. I think you, Francis, say, well, perhaps there can be at least
acceptable regimes that aren’t pluralistic, they just have another cultural tradition. I
would ask you both whether you think that’s true today as opposed to for all of
human history. Isn’t it possible to argue that as a consequence of the penetration of
market forces of capitalism into all corners of the globe and the liberal culture that
goes with it, but doesn’t always produce liberal governments, that the traditional
sources of legitimacy which enable rulers to govern without extreme repression,
have disintegrated? The traditional institutions which buffered populations against
monarchs have also tended to disintegrate and, therefore, is it not probable that
human rights, even the core rights plus pluralistic systems, are really the only
alternative today for ruling with only moderate degrees of repression?

FR. WINTERS: I wouldn’t think that. Take for example the claim that the
present Chinese regime is unacceptable to us; that if it were smaller and less
powerful, we would do something to change it. I think that’s assuming a level
of understanding on our part which is arrogant, in Alberto’s phrase, because I
don’t think that it’s changed that much.

PROF. JOHNSON: But that’s very different from saying that it is a good
regime. I should say Tom, you found me out. Because I do think of these possible
good regimes mainly in historical terms.

PROF. COLL: George Weigel.

DR. WEIGEL: Frank, could I ask you to sharpen this just a bit. It seems to me
you’re right to warn us of the limits of American understanding and therefore,
enjoin caution in recreating other peoples’ societies. If I may say, I think the
point would be even more effectively made if you counted the limited examples
where we have done a pretty good job of recreation. Mainly post-war Germany
and Japan.


186 Legal & Moral Constraints on Low-Intensity Conflict

and get right from principles to results. In fact, the kind of discussion that we
have, which has always gone on in international law and in diplomacy, is one
that draws on many sources to maintain and debate a never agreed, always
controversial, but evolving set of standards. In that kind of discussion, philos-
ophers, of course, do have a contribution to make, if only to say something that’s
clearer and purer than the more pragmatic discourse that follows on and
immediately complicates it.

PROF. REISMAN: Professor O’Brien.

PROF. O’BRIEN: Bill O’Brien, Georgetown University.

I would like to follow up on the question that Admiral Robertson asked. I’m
troubled by this business of legitimacy in cases of extreme emergency. Would
you say that Abraham Lincoln didn’t have any legitimacy? He certainly suspended
legal rights, such as habeas corpus, in a peremptory fashion. He said he was
compelled to such measures by the gravity of the national situation.

PROF. TESON: Well, we can’t stop making principled judgments because
there are hard cases. I’m willing to concede to Professor Nardin, that in judging
those hard cases, the presumption should be against intervening. If Peru is a hard
case, maybe the presumption should be in favor of caution and restraint. I’m
willing to concede that. But, it’s important that ray concession not be taken to
mean that the principles do not have great force in very clear cases. Even in the
more ambiguous case of Peru, my principles, I think, would provide guidance.
Now that we are considering the applicability of general principles to particular
cases, I would like to respond to the criticism of my views as excessively abstract
and insufficiently concerned with operational problems. I don’t think it is
warranted. In my paper, I discuss a number of real life examples, ranging from
the Israeli abduction of Eichmann to the Bay of Pigs to the possible assassination
of Saddam Hussein. I’m willing to analyze any particular operation in terms of
these principles. The horizontal contract within the nation, the vertical contract
between the regime and the people, the concept of legitimacy that flows from
them and the concomitant understanding of international sovereignty all provide
guidance for the evaluation of particular operations. I’ll be happy to accept the
challenge of applying those principles to any case you may suggest.

PROF. REISMAN: Professor Farer.

PROF. FARER: I just want to tease Fernando to amplify a little bit what it is
that he’s getting at. I suppose that the principles and rules that we've inherited
from the continuing history of relations between human communities, which
we call international law, incorporate the moral perceptions of these com-


Turner 63

It believes that the right of self-defense is inherent in every sovereign State and
implicit in every treaty. No specific reference to that inalienable attribute of sovereignty
is therefore necessary or desirable. It is no less evident that resort to war in violation
of the proposed treaty by one of the parties thereto would release the other parties
from their obligations under the treaty towards the belligerent State.”

Judge Jessup notes that this U.S. declaration “suggests that the right of
self-defense by its very nature must escape legal regulation.” This is reinforced
by another statement made by the United States during the negotiation of the
treaty:

Every nation is free at all times and regardless of treaty provisions to defend its
territory from attack or invasion and it alone is competent to decide whether
circumstances require recourse to war in self-defense. . . . Express recognition by
treaty of this inalienable right, however, gives rise to the same difficulty en-
countered in any effort to define aggression. It is the identical question approached
from the other side. Inasmuch as no treaty provision can add to the natural right
of self-defense, it is not in the interest of peace that a treaty should stipulate a juristic
conception of self-defense since it is far too easy for the unscrupulous to mold
events to accord with an agreed definition.”

It is also clear that other States shared the U.S. view that the 1928 treaty did
not limit the right to self-defense. Professor Brierly notes: “In forbidding war as
an ‘instrument of national policy’ the Pact did not forbid recourse to war in
self-defence, and in the negotiations concerning the Pact several States made
express declarations emphasizing that self-defence is a natural right not touched
by the Pact.””*

Ultimately, the “Pact of Paris,” as the Kellogg-Briand treaty was also known,
proved to be without teeth. When Japan invaded Manchuria in 1931, and Italy
entered Ethiopia a few years later, the world community did little but protest—
and, in the process, the theory that “law” offered a solution to aggressive war
‘was widely discredited.

Fortunately, as World War II came to a close, men of uncommon wisdom
recognized the promise of legal institutions in the struggle against aggression and
the United Nations was founded. Its Charter sought both to outlaw aggressive
uses of armed force and to provide an effective mechanism to enforce peace if
that proved necessary. Properly understood, the United Nations Charter is
designed to promote multinational responses to any international use-of-force
by States in violation of the Charter. Disputes are supposed to be settled peacefully
by the parties to them, but if that proves impossible the Security Council is
empowered, under certain conditions, to authorize or initiate the use of defensive
armed force on behalf of the world community.

However, it was understood from the start that the Security Council might
prove unable to act—such as when a permanent member exercises its veto—and


252 Legal & Moral Constraints on Low-Intensity Conflict

Saddam Hussein from Kuwait as a matter of “jobs, jobs and jobs” — the public
reaction was swift and negative, and the attempt to appeal to what were deemed
baser motives was quietly (and quickly) abandoned.

Indeed, and admittedly without the benefit of careful survey research, I would
suggest that the sourness in the national spirit these days, even on the matter of
Desert Storm, has at least something to do with an intuition that, in the war's
end-game, the United States abandoned its larger moral purpose in the Gulf War
and fell back into policymaking according to the seductive (and deceptive)
categories of realpolitik —- with disastrous consequences for the Kurds and
Shi'ites, and with the singularly unsatisfactory result of Saddam Hussein still in
power and still busily pursuing a nuclear weapons capability.

Be that as it may, the key point is this: the debate between Desert Shield and
Desert Storm demonstrated that foreign and defense policy in the American
context does not exist here, and moral reasoning somewhere over there. Americans
understand that there is one human universe of thought and action, in which
“morality” and “politics” are inextricably intertwined. That national under-
standing is more often reflexive than reflective, to be sure. And no doubt there
continue to be residual problems caused by the moralism bequeathed to the
national political culture by our Puritan and 19th century evangelical forebears,
who frequently identified the norms appropriate to social ethics with the norms
appropriate to personal and business relationships. But the larger, and more
significant point is that America remains, as G.K. Chesterton famously described
it, a “nation with the soul ofa church.”

Put another way, realpolitik is not simply a poor guide to policymaking (and
particularly in a revolutionary period such as ours, in which a realist emphasis on
“stability” as the overriding norm in the policy calculus can help produce
precisely . . . instability). Realpolitik calculations and realpolitik rationales for
policy are also a sure prescription for discord and disunity within a body politic
than understands (once again, instinctively) that realpolitik is not an escape from
moral reasoning, but rather a debased form of moral reasoning.

That is not the way other countries are. Indeed, one cannot imagine the kind
of debate that took place here between August 1990 and March 1991 taking
place in the French fifth republic prior to one of its occasional African adventures;
nor, at the time of the Falklands/Malvinas war, was there anything in Great
Britain resembling the public moral argument in America over Desert Shield/
Desert Storm. But that is the way we are. And that is why political and military
leaders dare not ignore Chesterton’s insight into the American character. The
moral argument has to be engaged.

And in terms of the kind of world in which we are likely to be living for the
foreseeable future, that means engaging the moral argument lodged within the
broader debate about low-intensity conflict.


xix

phenomena considered by the low-intensity conflict symposium in April of 1992
are real and persistent.

Alberto R. Coll James S. Ord Stephen A. Rose
Strategy and Policy Department Major Captain, JAGC
Naval War College USS. Marine Corps (Ret.) U.S. Navy

Note

1, KLARE & KORNBLUH, LOW-INTENSITY WARFARE (1988).


214 Legal & Moral Constraints on Low-Intensity Conflict

Father Winters discusses our interventions in Panama and South Vietnam
to argue that United States’ efforts to remake other regimes that fall short of
our values, are dangerous, often downright counterproductive, and suggest a
great degree of arrogance on our part. In some ways along the same lines that
Terry Nardin earlier made a plea for international law, Father Winters makes
a plea for that now somewhat discredited, old fashioned principle of sover-
eignty. He suggests that there is a core value to that principle of sovereignty,
which is the protection and embodiment of the idea that justice ultimately is
culture specific. By recognizing that value, sovereignty provides a link to
reality which policymakers badly need. The weight given to sovereignty by
international law, in this view, encourages a morally desirable degree of social
order that is violated when we attempt to remake the world in accordance with
western cultural ideals that we suppose to be universal.

There is a wealth of key issues that we need to raise here and I would like to
open the floor now.

PROF. COLL: Professor Sarkesian.

PROF. SARKESIAN: I’m grappling here with the meaning of low-intensity
or unconventional conflict. Does it include everything except conventional war?
T£it does, we need to flesh it out more fully to determine how international law
would apply to it. I just wonder if international law is comprehensive enough to
cover all aspects of every kind of war. I’m not sure that it is, Although I’m not
an expert in international law, I suspect that it is still growing and has many gaps
or areas that have been left unclear. I’m just wondering ifsome of these ill defined
areas coincide with the critical elements of uncoventional conflict, that is,
revolution, counterrevolution, and terrorism. This raises the possibility that
attempts to adjudicate the conduct of low-intensity conflict would involve a legal
free-for-all in contrast to the well established law of conventional war.

My second concern is whether just war doctrine is not driven by what we
normally consider now as conventional war issues. That is, war between
recognized political entities. I just wonder how relevant such a doctrine can be
to revolution, counterrevolution and terrorism. It seems to me that’s a problem
that some of our own military had in looking at unconventional conflict through
a conventional lens.

Asa final aside, I’d like to observe that democracies tend to evolve chaotically
so we need to be careful about looking for any one historical pattern in an attempt
to make judgements about political legitimacy. But to recap, the issues I would
teally like to be addressed are the meaning of low-intensity conflict, whether
international law is comprehensive enough to cover all of its manifestations, and
the relevance of just war doctrine to unconventional conflict.


Weigel 257

to the surface by the political and military leadership in its public presentation of
the situation in question. [That was done, I would argue, in Desert Storm, both
in terms of reporting the rules of engagement during the air war and the
consequent (and risky) return of unexpended ordnance when target recognition
was below minimum requirements, and in the discussion of the bombing of the
Iraqi command center/bunker/shelter in Baghdad.]

At a more fundamental level of the debate, and looking once again to the
classic categories of the just war tradition, the most significant public moral
argument about possible future low-intensity conflict scenarios and operations is
likely to be focused on the orienting jus ad bellum norm of just cause. The outlines
of this debate began to emerge during the argument between August 2, 1990
and January 16, 1991. In a post-Cold War world, what constitutes a morally
acceptable casus belli? A cross-border invasion in violation of the bedrock principle
of sovereignty? Massive and flagrant human rights abuses? The threat posed by
Iraq’s efforts to obtain weapons of mass destruction and the means to project
them far beyond its borders? The threat to the international economy posed by
the possibility of Iraqi control of over 40% of the world’s proven oil reserves?
The instability and danger to world peace that would inevitably follow from an
Arab Middle East dominated by Saddam Hussein? All of the above? Some of the
above? None of the above?

On this matter of “just cause,” the classic tradition taught that one or more
of three conditions had to be met for the criterion to have been satisfied: defense
against attack, punishment of evil, or the recovery of something wrongly taken.
Contemporary just war thinking has tended to reduce these to “defense against
attack,” although, as Professor Johnson points out, the other two conditions have
not simply disappeared but “have been subsumed within a gradually broadened
concept of defense that allows retaliation for an attack launched and completed
(punishment of evil) and defines wrongful occupation of territory as a state of
‘continuing’ armed attack.” Still, the U.S. Catholic bishops’ commentary during
the Gulf crisis debate stressed that the only possible casus belli in that situation was
the cross-border invasion and occupation of Kuwait. Even more comprehen-
sively, and insofar as one can successfully parse the complex signals coming from
various parts of the Holy See over the past eighteen months, the Vatican (while
insisting that it has not become pacifist in its basic moral reading of war and peace)
does seem to have reduced the components of casus belli to a narrow construal
of “defense against an attack already launched.”

Here, on this matter of the substantive components of “just cause,” is precisely
where a public moral argument needs to be engaged, and with a very careful eye
to the empirical evidence on the likely future of international conflict. Consider
three hypothetical scenarios for U.S. military action in the 1990s under the
low-intensity conflict rubric: nuclear non-proliferation, counter-terrorism, and
humanitarian intervention in the case of massive human rights abuse.


270 Legal & Moral Constraints on Low-Intensity Conflict

other factors, however, need to be considered. Contrary to a certain popular (or
more accurately, elite) stereotype, today’s officer class in the United States is
better and more broadly educated than at any time in the past. In terms of general
understanding of the international political-military environment, it can by no
means be assumed that military officers are less well-equipped than, say, foreign
service officers. Moreover, the military culture has unique advantages in terms
of the planning and execution of highly complex operations. Habitual attention
to the relation between strategy and resources, recognition of the importance of
doctrine, discipline in execution, accountability: all of these features sharply
distinguish the military from civilian national security organizations and are not
easily replicated outside a military organizational context.

It is undoubtedly unrealistic to expect today’s military to accept full respon-
sibility for the small wars mission. There is still a powerful current of feeling
within the military, deriving principally from the Vietnam experience, which
regards low-intensity warfare as a political albatross—a high-risk enterprise that
typically lacks genuine national commitment and jeopardizes the institutional
standing of the defense establishment as a whole. Without revisiting the historical
debate over responsibility for the American defeat in Vietnam, it seems fair to
say that while there is certainly justification for the view that the nation’s political
leadership blundered badly in that conflict, there were also serious military
shortcomings that can be traced to a general failure to appreciate the nature of
low-intensity warfare (which is not to say that Vietnam was typical of the genre).
More recent experience—the ten year conflict in El Salvador—shows that the
military has made real progress in correcting those shortcomings, even in the
absence of a major national commitment or firm strategic direction from
Washington; it is at least arguable that the U.S. could have achieved substantially
better results by relatively modest improvements in its military (or security-re-
lated) effort on the ground. It is not unreasonable to expect the U.S. military to
digest these lessons over time and take a more positive attitude toward the small
wars mission, After all, the United States is very unlikely ever again to involve
itself directly in a Vietnam-like counterinsurgency situation; at the same time, it
is becoming increasingly difficult to justify structuring the U.S. military estab-
lishment around exclusively large~war missions. The case of Panama shows how
a small war can be not only low cost but high payoff both in a strategic and a
political sense. Even a protracted small war need not raise the specter of Viemam
ifrules of engagement are reasonable, strategic objectives are understandable and
attainable, costs are contained, and the supported government is politically
palatable. Improved coordination of the military and non-military instruments
of national power will remain the key to improved American performance in
small wars. As suggested above, perhaps the most promising approach is simply
to expand the military’s responsibility in areas usually considered peripheral to
its primary war-fighting mission. The most important such areas are intelligence,


Chapter VII

Just War Docirine’s Complementary Role
in the International Law of War

by
William V. O’Brien*

Introduction

evived just war doctrine has increasingly been invoked by the United States
overnment and armed forces in the contemporary era. As the American
tradition of respect for international law continues, the moral warrants and
limitations of just war doctrine have increasingly been called upon to comple-
ment the legal prescriptions of the positive law of war. This is not surprising.
Historically, just war doctrine and the international law of war developed
concurrently. This was and remains especially true with respect to war-conduct
law (jus in bello). As legal positivism displaced natural law and other higher law
normative approaches in the 19th and early 20th centuries, just war doctrine
virtually disappeared except as a chapter in the history of ideas. Collapse of the
positive international law of war in the total wars of World Wars I and II, the
nuclear balance of terror, the multitude of revolutionary/counterinsurgency wars
complicated by multiple interventions and counterinterventions, and the increase
in terrorism all contributed to a sense that international law needed reinforcement
in some cases and replacement in others.

The most significant evidence of the relevance and importance of just war
doctrine to political and military policy decisions has been furnished by the
United States government and military. Government and military leaders have
understood that there must be persuasive legal and moral arguments justifying
decisions to use armed force if Congressional and popular support is to be firm.
Terms common to the international law of war and just war doctrine, e. g.,
proportionate force, discrimination, measured response, have been employed in
official statements. This trend was epitomized in key addresses by Secretary of
Defense Caspar W. Weinberger and Secretary of State George P. Shultz.!
Emphasis on U.S. efforts to observe the principles of proportion and discrimina-
tion was prominent in the Department of Defense’s Interim Report of July 1991
on the Persian Gulf Conflict.2 Moreover, just war doctrine is studied in the


290 Legal & Moral Constraints on Low-Intensity Conflict

the congressional oversight provisions. There would be a brief debate about how
to limit the knowledge on the Hill, lest it be leaked and the program be done in
early on, and beyond that there was very little discussion of the purpose of the
covert action or its relation to policy. In that context, certainly, there was little
consideration of what we have been talking about for the last two days, of the
moral dimensions of the proposed action.

An example I would like to consider briefly is the Afghanistan covert action
program. When the Reagan Administration came into office, the Carter Ad-
ministration had already begun a covert program of supporting the Mujahedin.
against the Soviets in Afghanistan. This was already a substantial program, but it
appears to me that the Reagan Administration tock the view, and I’m going to
be a bit facetious here, that if the Carter Administration could spend X dollars
in Afghanistan, it behooved the Reagan Administration to spend 20 X. That was,
at least for the first several years of the Reagan Administration, essentially the
extent of the policy debate as to the wisdom, efficacy and morality of the program
in Afghanistan. Now, that is not to say that individuals did not believe that
American support to the Mujahedin was a key element of what we might call,
in retrospect, the Reagan Doctrine. To the best ofmy knowledge, however, and
I had staff responsibility for this, I do not believe there was ever a formal
discussion, or for that matter, an organized informal discussion of the issues
involved in Afghanistan. We were simply dumping an awful lot of money into
supporting the Mujahedin with almost no consideration as to what was happen-
ing. Now, if that had been simply a program to give food aid or medical supplies,
one could say that there wasn’t a lot of additional policy consideration required.
But, of course, the effect of American support was very much to result in the
loss of lives, both Russian and Afghani. American lives were not involved, but
nevertheless, this was lethal aid on a rather grand scale. In fact, it was the largest
covert action program in terms of dollars and equipment in American history.

After a number of us attempted over the course of several years to force a
policy discussion on Afghanistan, we finally succeeded in convening a meeting
at which we could ask basic questions about our purposes in Afghanistan. The
result was guidance for the White House staff to develop a checklist to evaluate
implications of the covert action program for American policy objectives. Those
of you who advocate the use of just war doctrine as a convenient means of
appraisal will be pleased to learn that we did just that. Without mentioning just
war, we simply incorporated various criteria in a nice bureaucratic sounding
checklist and asked CIA for a reply. There was a bitter dispute because no
bureaucrat wants to be measured with regard to his or her performance, and so
there was a natural reluctance on the part of those engaged in carrying out the
covert action to have to answer these questions. Likewise, there was a reluctance
on the part of policymakers to have to define exactly what they were doing
covertly and what they intended.


112 Legal & Moral Constraints on Low-Intensity Conflict

Consider political realism and common-sense morality, which the typology
puts at opposite ends of both dimensions. The picture of realism Teson offers is
historically inaccurate and philosophically incomplete. The kind of realism we
encounter in foreign affairs, when we get above the level ofa vulgar, unthinking
“my country right or wrong,” is one that does not entirely dismiss principled
constraints, whether these come from one’s own tradition (for example, the
American ethos or the ethic of military honor) or from some putatively more
universal source (natural law, human rights, “reason,” etc.). The realism of
Treitschke, Niebuhr, Butterfield, Morgenthau, and Kennan recognizes not only
the prudential considerations of necessity and proportionality, but also the
principled constraints of morality and law.

The ethical question, as the realist frames it, is “When should moral and legal
constraints be set aside for the sake of the national interest (that is, to preserve
national security or the public safety)?” Realist theories can be usefully classified
according to whether and under what circumstances they permit prudential
considerations to override principled ones. An extreme or pure realist might say
“always,” but more moderate versions of realism would introduce progressively
stricter constraints: “only in foreign affairs,” “only in war,” or “only in national
emergencies.” In other words, the kind of sophisticated realism that is rooted in
the idea of reason of State, and that has long been prominent in diplomatic
thought and practice, is not a purely consequentialist ethic of the national interest.
It is an ethic of principles that is willing to override its principles when the stakes
are high enough, and only when the stakes are high enough. The strictest version
of such an ethic would be one that insisted on fidelity to law or moral principle
except in situations of extremity.

Now a constraint-oriented ethic that allows moral principles to be set aside
in extremity is not so different from the kind of political realism that is willing
to respect moral principles if the costs are not too high. There is not a big
difference between a moral theory that says “respect the principles of justice and
human rights except in extremity, if violating these principles is necessary to
preserve the community and its laws,” and a realist theory that says that “in
extremity one may (if necessary) override justice and rights.” The realist and
human rights theories reach this common point of agreement from different
directions, but there is a point of agreement. The only way to really distinguish
common-sense morality from consequentialist realism is to insist that moral or
legal principles must be observed regardless of consequences. Fiat justitia, ruat
coelum (Let justice be done though the heavens fall). But despite all his insistence
on human rights, Téson seems not to want to take this last step, and therefore (I
would argue) he remains closer to realism than he perhaps realizes.

Now let’s take a closer look at Professor Teson’s ethic of legitimacy and his
application of it to low-intensity conflict. Teson gets himself into needless
difficulty by making too much depend on the idea of legitimacy. His basic


Panel Discussion 281

require the approval of Congress under the War Powers Resolution. Presidents
have, furthermore, taken the view that such actions are quintessentially those
concerning which a report is not possible due to the need for secrecy. So, the
Resolution tends to create fewer problems even for those low-intensity activities
to which it does apply. In general, it seems safe to say that limited uses of force,
designed to serve a special purpose, create less concern in Congress than broader
uses of force, such as the war to liberate Kuwait.

The dramatic and substantial air strike against Libya created no significant
difficulty in Congress, although it was strictly unilateral, not only because the
objective was widely supported, which it was, but also because Congress did not
view this onetime, single-purpose effort as a threat to its institutional role and
constitutional powers. Conversely, when Congress saw that President Bush was
about to wage a full-scale war to liberate Kuwait without its approval, it acted
to prevent what would have been, I believe, a de facto loss of its authority.

Now, there are exceptions to this generally hospitable view of low-intensity
devices under domestic law. Those are the special situations in which Congress
has sought an ever greater role in regulating certain covert activities and in making
sure that they are subject to legislative review. Where a low-intensity operation
is a covert operation under the Intelligence Authorization Act, fiscal year 1991,
absent a presidentially declared emergency, special reporting, approval, and
funding requirements apply. No such action is allowed that would violate the
Constitution as expressly provided in the statutes. This leaves in place, however,
the President’s power to authorize such operations even if they arguably violate
international law, the laws of foreign countries or possibly even U.S. statutes.

Finally, Congress is particularly protective of its exclusive power to fund all
U.S. Government activities. Now, I’m not advising anyone to violate a U.S.
statute with a covert operation. I think, however, ifyou report a covert operation
that contains an arguable violation of the U.S. statute and the committees do not
take you to task for it, you will be given the benefit of the doubt as to whether
it does, in fact, violate the U.S. statute in that sort of situation. That would not
be true of the funding requirements. I think there’s nothing Congress feels more
strongly about, particularly after Iran-Contra, than the possibility that covertly
generated funds could be used to support other covert operations, which would
then not be subject to Congressional check through the budgetary process.

The single most significant limit imposed by executive order on low-intensity
operations is the prohibition on assassination. While I share the doubts expressed
at this conference about the wisdom of targeting foreign leaders, some interpreta-
tions of this prohibition have unreasonably restricted the capacity of the U.S. to
use a variety of important low-intensity methods, even in self-defense, which
might, not intentionally, result in the death of a foreign leader.

The meaning of assassination in the executive order, however, has been
limited in several ways during the last few years. Most significantly, it’s been


118 Lega! & Moral Constraints on Low-Intensity Conflict

to seta historical context for our discussion in a way which grossly distorts history.
It is true, however, that the American people, including much of its elite, have
been uneasy about the propriety, as well as the wisdom, of armed intervention
in the affairs of weaker States; thus we have sought to find benefit to the objects
of our foreign excursions as well as ourselves. The United States, unlike the U.K.
or France or Russia, has never contemplated the imperial mission with unin-
hibited relish.

The second point that Bob makes, it seems to me, is that in order to circumvent
the U.N. Charter, or to crawl through its loopholes, the bad guys use low-in-
tensity conflict strategies. Now, we have used low-intensity conflict strategies
ourselves. Bob would say we've used them defensively. In some cases—possibly
in many cases—we arguably have, although the question of what is offensive and
what is defensive is often a question of how far do you look back. Do you look
to the immediate event or do you try to put that event into a whole stream of
interactions between yourself and another country?

The Iranians have used low-intensity acts against the United States over the
past few years. The Iranian view, of course, is that if you take U.S.-Iranian
relations from the close of the Second World War to the present time, the U.S.
has frequently used low-intensity conflict tactics against Iran, for example, in
restoring the Shah to power in 1954,

Again, I’m not trying to make a value judgementat this point. Iam merely stating
a fact, which is that the tactics and strategies which we lump under this heading
“low-intensity conflict” have been widely employed, and we ourselves have
employed them. It’s not a set of means that are uniquely used against the interests
of the United States, and that somehow we have not found it possible to employ.

Third, Bob seems to be expressing a world view which suggests that in
responding to attacks on the United States using low-intensity warfare methods,
we should try to live within the substantive and procedural law, and if we
construe that law properly—that is, the way Bob does—normally we can crush
the bastards legally. But, if the substance of law gets in the way of our vital
interests, and we can’t make the U.N. or regional institutions do the right thing,
then we must act outside the law to defend our vital interests.

While implying an intimate linkage among threats to vital interests, low-in-
tensity conflict and terrorism, Bob neither defines them nor spells out that
linkage. The paper assumes that we still have a lot of vicious opponents out there
in the wide world, What is left totally unclear, however, is whether our enemies
are enemies because of their methods—and if so, which methods—or because
of their ends. I think we need to think about that.

‘What has struck me over the past several years in which I’ve participated in
discussions about low-intensity conflict—I was part of the two-year, multiple-
meeting project on aspects of low-intensity conflict that Alberto Coll organ-
ized—was that the sometimes almost frenzied attention to this concept often had


340 Legal & Moral Constraints on Low-Intensity Conflict

Aristotle explicitly, and Thucydides implicitly, sought to connect prudence and
morality. Prudence was to remain under the guidance of, and be illuminated by,
morality. However tenuously, the nexus between politics and universal principles
‘was to be maintained. As noted elsewhere, “for Aristotle, prudence or practical
‘wisdom was the highest form of virtue or excellence in political life. Without a
prudent statesman at the helm, the polis was like a ship wildly tossed about by
the waves of human passion and misdirected moral energies.”

In Book VI of the Ethics, Aristotle states that there are five modes of thought
by which truth is reached: art, science, prudence, wisdom, and intuition,
Prudence or practical wisdom, which is at home in political life, is the ability “to
deliberate about what is good and advantageous.” Individuals who are “capable
of deliberation will be prudent.” This is “because they can envisage what is good
for themselves and for people in general; we consider that this quality belongs to
those who understand the management of househclds and states.”*° For Aristotle,
statesmanship (the management of States) and prudence are closely related,
Statesmanlike prudence can take two forms: one has to do with directing or
legislating, the other with “practical circumstances.” With respect to the latter,
Aristotle explains that the prudent statesman has acquired the capacity to
deliberate. This is acquired through “knowledge of particular facts, which
become known from experience.” Prudence is different from either scientific
knowledge or intuition.

What is the relationship between prudence and virtue? Politics and the
conduct of the statesman are to be directed toward virtuous, good ends. Aristotle
writes that “the full performance of man’s function depends upon a combination
of prudence and moral virtue; virtue ensures the correctness of the end at which
‘we aim and prudence that of the means towards it.”*! Thus, prudence is directly
related to virtue and is not to be confused with mere cleverness or cunning. 2 In
effect, the concern of prudence is to adjust or apply the universal moral virtues
to particular situations. For Aristotle, the good statesman merges moral virtue
with practical intelligence, experience, and knowledge of the particular charac-
teristics of his regime and the world around it.

What are the universal moral virtues that the best regime is to reflect and the
prudent statesman to illuminate in his actions? They are most notably justice,
moderation, courage, liberality, honor, and proper ambition. The nature of the
polis plays a critical role in determining whether or not the State and the statesman
adhere in its internal and external policy to these virtues. For example, Aristotle
asserted that the difference in the regime character of Athens and Sparta was
reflected in their foreign policies. In commenting on their external policies he
observed: “Taking supremacy in the constitution as the prize of victory they
proceed to set up a democracy or an oligarchy as the case may be. Also, those
who came to exercise leadership among the Greek states installed democracies
or oligarchies in them according to the constitution which each had at home.”


236 Legal & Moral Constraints on Low-Intensity Conflict

problematic. Secondly, the question of just revolution to which Father Winters’
paper alluded, and to which our earlier discussion brought us, is also highly
problematic. In Professor O’Brien’s view, low-intensity conflicts that involve
claims of just revolution will be exceedingly difficult even for the just war
tradition, to analyze coherently. Thirdly, we must beware, at least as I understand
Professor O’Brien, of resorting to the humanitarian intervention justification in
low-intensity conflicts, because, in his view, there is no genuine humanitarian
intervention anywhere in the world. A proposition that some of you may feel
free to challenge. Fourthly, he warns us to keep in mind that assessing the relative
merits, the comparative justice of regimes involved in low-intensity conflicts,
necessarily involves making difficult judgements. A fifth warning Professor
O’Brien gives us has to do with the calculus of proportionality. He suggests that
just war doctrine can help us, not only in low-intensity conflicts, but also in
conventional conflicts, in determining the calculus of proportionality with a
greater degree of nuance than international law can do.

In conclusion, as he puts it, international law is highly limited. He provides
very specific examples for this view from the area of counterterrorist operations.
In his view, international law as reflected in U.N. Security Council resolutions
dealing with various Israeli counterterrorist operations, is inadequate to address
the moral and policy dilemmas faced by the Israeli State, and he suggests that our
reading of the provisions made by the Charter for self-defense needs to be
broadened. This harkens back to an earlier point in our discussion. Our
interpretation needs to be broadened to include not only deterrence, but also
situations in which our nationals are attacked outside of our own territory. I think
that one legitimate question that needs to be raised is how broad a definition of
self-defense we can really justify.

Professor O’Brien warns us against over-commitment or even significant
military commitment in the drug wars. In that sense, he is suggesting that perhaps
our involvement in these drug wars should not be properly classified as low-in-
tensity conflict, but more as law enforcement, although he agrees that in some
cases in which the drug trade is tied to significant use of armed force by organized
groups such as insurgents, it begins to resemble low-intensity conflict.

Professor Eckardt gave a rather strong endorsement of Professor O’Brien’s
points. He reminded us that one of the important things about the just war
tradition is, as Jim Johnson told us earlier, that its thought reflects forms of what
Terry Nardin would call common morality. For a democracy, resort to force
either in the form of low-intensity conflict or otherwise, has to be rooted in
those notions of common morality if it is to yield the kind of public support
requisite to success, if it is to be part of that Clausewitzian trinity of the army,
the government and the people.

I want to close here by raising some uncomfortable questions for both
Professor O’Brien and Professor Eckardt. The first problem alluded to by


Winters 173

from removal by U.S.-anointed General Anastasio Somoza, head of the U.S.-
designed National Guard.>

Klein then traces the origins of the U.N. Charter’s fundamental principle of
“sovereign equality” directly to the influence at the war-time conference
planning the U.N. of Sumner Welles and Cordell Hull, whose own endorsement
of the principle of sovereign equality had been nurtured by their decade-long
diplomatic dealings with officials of Latin American nations who had ex-
perienced, or feared experience, of U.S. intervention.’ The Charter’s prominent
support of the principle of sovereign equality, and its corollary of noninterven-
tion, may then be seen as evidence of “the sins of the fathers being visited on
their sons.” U.S. interventionism thus sowed the seeds of the sovereignty
principle now enshrined in the U.N. Charter.

The principle of nonintervention is now under attack, or at least subject to
continuous erosion. Alongside the history of recent controversial cases of U.S.
interference in Nicaragua (1979-1986),° and Panama (1989)° one might only
refer to two documents on low-intensity conflict which seem to assume the
irrelevance of the international legal principle of sovereign immunity from
intervention. The first is the Final Report “Joint Low-Intensity Conflict Project”
prepared by the Project at the U.S. Army Training and Doctrine Command,
Fort Monroe, Virginia (1 August 1986): “. .. the U.S. can provide support for
...an insurgent force seeking freedom from an adversary government.” More
explicitly still, a subsequent Initial Draft of “Some Thoughts on Low-Intensity
Conflict,” originating at the Army-Air Force Center for Low-Intensity Conflict
(Langley Air Force Base, Virginia (August, 1989)), seems to endorse assistance
to insurgents seeking to overthrow the national government:

The U.S. may assist a government or insurgent forces against a government... .
The U.S. supports selective insurgencies opposing oppressive regimes who work
against U.S. interests.*

Both these documents seem clearly to challenge the present academic under-
standing of the legal norms concerning intervention. Both John Norton Moore
in Law and Civil War in the Modem World and, in a more philosophical vein,
Michael Walzer in Just and Unjust Wars, spell out the principles that allow outside
assistance (up to a certain level and moment) to governments facing local
insurgencies while condemning assistance to such insurgencies.”

The argument presented by Professor Johnson challenges Walzer’s interpreta-
tion of just war theory with two broad claims: that the tradition allows outside
intervention against “petty dictators” and “drug traffickers” even apparently in the
absence of any indigenous insurgencies challenging such regimes.'° Professor
Johnson’s permissive approach to the morality of cross-border reforms appears
to represent a certain innovation in just war thinking, although it would be a


314 Legal & Moral Constraints on Low-intensity Conflict

would be against positive law, but that it might be used to interpret the law in
ways that would be more reasonable.

I'd absolutely reject the third use. Natural law is non-ideological by its very
nature. It’s an ethical framework of analysis. To put content in it, or to make it
a tool of some particular point of view would violate its character.

PROF. NARDIN: I noticed two tendencies in the discussion where people
have divided ideologically over military issues. I would call one group of speakers
separators, and the other group integrators. I’m speaking here about how one
combines judgments of legality, judgments of morality, and judgments of interest
or prudence. I should indicate before I go furthez with this that I’m a separator,
just so you know.

One of the issues that we’ve been talking about is the nature of law, because
if law is going to govern low-intensity conflict operations, theories about it are
not just academic. I think we have a range of quite different views of law here,
and if you'll permit me to engage in a little parody which is deliberately unfair,
I'd like to identify at least four theories that I’ve noticed,

First, Professor Teson’s view is that we should respect the law except when
it’s unjust. Then, Professor Turner’s view is that we should respect the law except
when it’s inexpedient. Professor Farer thinks that we should respect the law even
when it is inexpedient. And Professor Reisman says that we should do what's
expedient and call it law.

Let me immediately apologize to Professor Reisman by acknowledging that
he does not intend that the United States should pursue its interests without
reference to the concerns of other nations. I understand that he means to advocate
a policy making process that is expedient for the larger system of international
relations because it takes into account the interests of the international com-
munity in formulating American objectives.

However, these are views of law that do not identify it with the common
interest. Law is seen instead as a set of constraints on the pursuit of the common
interest. So I would say that Professor Reisman is a synthesizer or integrator.
Some of you have said that in moral oversight we need to assess the need, accuracy
and prudence of our efforts. Admiral Harlow agreed when he connected legality
and morality with advocacy, expediency, prudence, and interests.

On the one hand you have people who think that law is essentially a matter
of interest and prudence; on the other, people who see it as a matter of rules or
constraints in contradistinction to prudence. I think Judge Sofser indicated
repeatedly his commitment to that second view.

I think the same divide persists when we pass fom legal to moral issues. What
is morality? For some people it’s a matter of antecedently authoritative principles
that constrain collective international interests as well as those of individual States.
The moral point of view is one of conscience, of principle, of civility, of restraints.


162 Legal & Moral Constraints on Low-intensity Conflict

Broadly, then, the moral questions involved in deciding whether to use
military force to respond to a terrorist act are not different in kind from those
bearing on the use of military force in response to an overt act of hostility. Just
cause must still be proven to exist, although this is more difficult in the case of
terrorist acts in which State sponsorship is suspected. Right authority must still
be satisfied in the form of both national command authority and public support
for the decision to use force. So also should the other concerns of the jus ad bellum
be attended to: right intent, proportionality of harm inflicted to damage done
and values at stake, reasonable hope of success, las: reasonable resort, the goal of
a peace resting on justice and good order.

The other particular case I want to treat briefly here is that of using military force
to interdict, deter, and punish narcotics traffickers. Unlike State-sponsored terrorism,
the organized narcotics trade often operates out of secure enclaves within countries
whose governments, like those of Colombia and Peru, are too weak to root them
out. The trade may even, as in Peru, be linked with a revolutionary movement at
‘war with the national government. Under these circumstances, the use of military
force to break up drug enclaves and open them to more standard means of police
action seems highly appropriate. Given the direction of the narcotics traffic from
these countries to the United States, I would argue that just cause exists for the use
of military force, expressed in the classic language, “to repel injury” and “to punish
wrongdoing.” But at the same time, the inability of friendly national governments
to act by themselves constrains our use of this justification, The prudential require-
ments of the just war tradition may not be satisfied by unilateral American military
intervention. Here is a case in which the scale of possibilities implied by just war
tradition matches that of good statecraft. Beginning with efforts to bolster the
counter-narcotics capabilities of a host government, the range of justifiable options
ascends to an invited military intervention, turning to unilateral intervention only
when all other possibilties have been exhausted. Again, we have a case in which a
just cause may be present, but other concerns must also be taken into account to
determine whether use of military force is justified.

B. Specific Issues in the Choice of Means
(theJus in Bello of Just War Tradition)

1. Observing Discrimination and Proportionality in Low-Intensity
Conflict. In operational terms, the just war tradition is one of limited war.
Within the realm of what it is both justified to do and possible to do, jus in bello
requires that military plans be subjected to a closer degree of critical scrutiny
through the lens of discrimination and proportionality, the two principles that
bear on the conduct of justified military activities. The commander who takes
these criteria into account before issuing orders will attempt to focus his forces
on the particular targets most closely connected with the activity being punished.


58 Legal & Moral Constraints on Low-Intensity Conflict

treaties with foreign Powers.”®> While it has on occasion been suggested that a
treaty should not be permitted to restrict a State’s sovereign authority, the
majority view—supported by a series of World Court opinions—has long been
that the right to enter into agreements limiting sovereignty is itself an element
of the exercise of sovereign power.

From time to time throughout history it has been suggested that sovereignty
is inalienable and cannot be limited even by treaty. This view has been soundly
rejected in the modern world; and, indeed, the Permanent Court of International
Justice held as early as 1923 (Wimbledon case) that entering into a treaty
commitment which limits sovereignty is itself an exercise of sovereignty. The
Court reasoned:

The Court declines to see in the conclusion of any treaty by which a State
undertakes to perform or reftain from performing a particular act an abandonment
of its sovereignty. No doubt any convention creating an obligation of this kind
places a restriction upon the exercise of the sovereign rights of the State in the
sense that it requires them to be exercised in a certain way. But the right ofentering
into international engagements is an attribute of State sovereignty.

The Concept Of Jus Cogens

Another dramatic departure from traditional concepts of sovereignty and
international law has been the development of the theory of “peremptory norms”
(jus cogens) of international law which are binding upon all States irrespective of
their consent. This is a very new doctrine, and while there is widespread (but
not unanimous) agreement that such rules exist, there is far less accord as to the
actual content of this “higher” body of law.

Historically, “consent” was viewed as the basis for all rules of international
law. A State might undertake an obligation by ratifying a treaty, or it might
become bound by a consistent practice of obeying certain rules in the belief
(opinio juris) that they were legally binding—the process through which cus-
tomary international law was formed. But even as a new customary rule is formed,
if an existing State registered its clear objection it would not be held bound by
the new rule.

As early as 1970, in the Barcelona Traction case, the International Court of
Justice distinguished between the normal bilateral obligations States make to each
other and a higher level of duties owed to “the international community as a
whole.” The Court explained: “Such obligations derive, for example, in con-
temporary international law, from the outlawing of acts of aggression, and of
genocide, and also from the principles and rules concerning the basic rights of
the human person, including protection from slavery and racial discrim-
ination.”5°


240 Legal & Moral Constraints on Low-intensity Conflict

PROF. COLL: How about the point about practices and expectations? Aren’t
you defining international law too narrowly when you look at only the Security
Council resolutions?

PROF. O’BRIEN: I have mixed feelings about that because, after reading all
these debates, I have a very low opinion, in the first place, for the legal scholarship
that goes into them. In 40 years, there has scarcely been half a dozen serious
attempts to back up an argument by reference to legal text. In fact, mainly the
Israelis are the ones that do that, but the rest of them just pontificate about these
things and after a while they begin to agree with each other. They say, well, as
we rightly said 14 times already, we’re right. That doesn’t strike me as very sound
legal scholarship.

On Tom’s example, I think if all your respected authorities were queried on
both Libya and Nicaragua, they would absolutely blast us off the map. You say
that a good legal case could be made and I think that is possible on Libya. I myself
think it’s a little tougher on Nicaragua, but I believe that the U.S. position is a
very distinct minority, as suggested, among other things, by the ICJ decision.
Now, I’m not saying whether it’s good, bad or indifferent, but I’m just saying
there is a difference between what gets churned out by the international
community or whatever you want to call it, and what some of us might see as
reasonable and proper in a particular situation.

PROF. COLL: On this particular point, Judge Sofaer, would you like to jump
in?

JUDGE SOFAER: [ agree with that. I think that if our military planners and
political leaders started to listen to the group of international law scholars that
Tom Farer is talking about, this country wouldn’t have done virtually any of the
things it’s done in the last 12 years. They would have been glad, those
international legal scholars, irrespective of the consequences. Maybe because of
the consequences.

The issue for me, is that you can’t equate international legal scholars with the
kind of people that Eckardt is talking about who have to sit around a table and
plan for wars. When we had the exercise of Protocol 1, there were many
European legal advisors, to use his phrase in the way he intended, who were told
by their governments that the protocol would be ratified for political reasons,
while allowing for certain exceptions. Nonetheless, they sat down with us and
carved out huge holes in the intended effects of the protocol with reservations,
exceptions and interpretations. It wouldn’t have been very difficult really, to
design a manual for the NATO forces that the U.S. could agree to. But we
determined not to ratify the resulting protocol because the JCS found, in a
100-page study, that it would interfere not just politically with U.S. objectives,


Roundtable Discussion 309

It would deal with issues of command and control. As Carnes Lord suggested,
perhaps the military should be in command even over economic and political
aspects of low-intensity conflict. That’s a tough nut to crack. It will require an
imaginative approach so we don’t get bogged down in bureaucratic niceties, and
avoid doing the right thing.

I would also make provision for intelligence support. Here let me make a
point that I think is important. Intelligence support is often viewed as espionage
support. It is not, ladies and gentlemen. One tenth of one percent of intelligence
support requires espionage. When I speak of intelligence support, I’m talking
about something that is fully lawful. It has to do with intelligently analyzing
information that is readily available in the economic, political and military arenas,
and communicating one’s conclusions to the decision-maker. The point was
made this morning that information delayed is information denied. Not only
does it have to be delivered in a timely manner, but intelligence requirements
have to be carefully assessed. Nipping things in the bud at a low level of violence
requires robust intelligence support. If we are to develop a meaningful policy for
low-intensity warfare, we must decide who is responsible for intelligence support
and how those requirements will be identified.

I would include in such a concept plan the question of legal issues. That draws
us back to what Judge Sofaer and many others mentioned, the War Powers
Resolution. Frankly, if I wrote the legal memorandum, I would not explicitly
use the just war terminology, but would try to present the principles in the
context of contemporary reasoning understandable to the military.

Finally, there needs to be a policy oversight to attend to the moral dimension
of any low-intensity conflict program and monitor its efficacy. The needs change,
and the challenge moves so that reassessment must go on continually.

Although we have listened to many different viewpoints during the sym-
posium, I believe that our deliberations have revealed an identifiable core of
consensus that could serve to support the approach I have outlined.

Thank you.

PROF. COLL: Thank you, Admiral Harlow, for your very practical counsel’s
recommendations. As we continue this project, we should strive to maintain the
fruitful tension that we have seen here between the world of policy and practice
and the world of philosophy and theology; between the values of the cave and
the world of the bright, shining sun.

Let me raise a couple of questions that I think we may want to wrestle with
now. I think that the first question that we need to consider has to do with a
point that Ken DeGraffenreid made. Ken said that one of the things he discovered
in the policy process, is that often there seems to be a vacuum at its core. There
is some input of legal advice at times, there are plenty of judgments based on
purely strategic considerations, but, in his view, there is no process to ensure


358 Legal & Moral Constraints on Low-Intensity Conflict

from the University of Southern California and was named the Mudd Memorial
Fellow in Philosophy, 1958-59. His writings on ethics include War, Morality,
and the Military, and The Teaching of Ethics in the Military. General Wakin has also
served as the national chairman of the Joint Services Conference on Professional
Ethics (1979-1992).

George Weigel, a Roman Catholic theologian, is President of the Ethics and
Public Policy Center in Washington. He was the founding president of the James
Madison Foundation and a fellow of the Woodrow Wilson International Center
for Scholars in Washington, D.C.. He is the author of eight books on ethics and
international politics including Catholicism and the Renewal of American Democracy,
and Tranquillitas Ordinis: The Present Failure and Future Promise of American Catholic
Thought on War and Peace.

Father Francis X. Winters is Associate Professor of Ethics and International
Affairs at The School of Foreign Service, Georgetown University. He has been.
a consultant on ethics and international security for the U.S. Congressional
Commission on the Organization of Government for the Conduct of Foreign
Policy and has been a member of the International Institute for Strategic Studies
since 1986, His books include Politics and Ethics, and Ethics and Nuclear Strategy.


$26 Legal & Moral Constraints on Low-Intensity Conflict

creation of Radio Free Europe and Radio Liberty to reach mass audiences
in the Soviet Union and Eastern Europe.

© Political action may involve money, advice, and assistance to individuals or
groups in a foreign country. Provided through secret channels, the purpose
of political action is to encourage those who are either friendly to one’s own
interests or hostile to one’s enemies. Groups receiving assistance might
include political parties, trade unions, government institutions, cultural
associations, and media organizations. One early example of a major covert
political action was the effort to counter widespread political subversion
efforts by the Soviet Union in Germany, France, and Italy during the late
1940s by giving clandestine assistance to ncn-communist political, labor,
cultural, and journalist groups. Perhaps the test-known of these programs
centered on the Italian election of 1948. Political action programs continued
throughout the post-World War II period, and the debate over the merits
of some of these programs has been quite contentious. CIA operations in
Chile from the early 1960s through the Allende years became extremely
controversial, although they were not initially so.

© —Paramilitary assistance involves furnishing secret military aid and guidance
to foreign forces and organizations. Such aid may be given to those who
either conduct or defend against a guerrilla insurgency. Until the 1980s,
most CIA paramilitary efforts supported defenses against insurgency. For
instance, in the early 1950s, assistance and advice helped the Philippine
leader, Ramon Magsaysay, launch an effective paramilitary and
psychological campaign against the Huk insurgents, who were backed by
communists. Another example of paramilitary activity was the CIA’s
program in Laos in the 1960s and early 1970s. In 1962, President Kennedy
decided to provide clandestine support to the the Royal Lao Army and
to the Meo, as well as other hill tribes. By the end of the 1960s, the Meo
forces, led by Van Pao, numbered almost 30,000. With extensive CIA
support, they waged war against not only the pro-communist Pathet Lao
forces but also against regular North Vietnamese divisions. The United
States assisted some insurgent forces in the 1950s and 1960s, most notably
in Tibet against the Chinese Communists and at the Bay of Pigs.
However, it was during the Reagan years that the U.S. government used
pro-insurgent programs most extensively.

© Coup d’etat, in its traditional form, involves secret assistance or financial
backing to a faction within a foreign country that carries out a deliberately
conceived and swiftly executed seizure of government power through the
removal of the current leadership. The CIA operation in Iran in 1953 is a
classic example of a successful coup. A less traditional and broader definition
might encompass advice and assistance to a leader who, while friendly, is
rapidly losing legitimacy and control. In such instances, the goal is to assist


16 Legal & Moral Constraints on Low-Intensity Conflict

East bloc States that, in the early 1980s, sent arms to Cuba and Nicaragua for
transhipment to the Salvadoran guerrillas, made sure that they did not include
Soviet-made weapons. The bulk of the arms came from U.S. stockpiles captured
by North Vietnam during the Vietnam war, so that the guerrillas could claim
that their arms were American-made, and that they had captured them in the
course of their own military operations against the U.S.-assisted Salvadoran army.
Political assassinations are frequently carried out by individuals having no
ideological connections whatsoever to the entity that employs them for their
task. If the Bulgarian intelligence services were indeed behind the assassination
attempt against the Pope in 1981, one can expect that they would have used, not
a disgruntled radical leftist but a right-wing extremist such as Ali Mehmet Agca.
The captured Grenada Papers show that the top Grenadian leadership intended
to make available to the Soviet Union and Cuba the large “civilian” airport under
construction at Point Salines; yet when the Grenadians asked the Soviet Union
for direct financial aid to help them complete the airport, Foreign Minister
Gromyko told them that this was out of the question and that Grenada should
seek a loan from the IMF instead.”* Fidel Castro, acknowledged by most Latin
Americans of the right and the left as an active supporter of violent revolutionary
movements in the region for nearly three decades, was superbly skillful in blotting
out any evidence of such support. Similarly, during the last three years the Serbian
government of Slobodan Milosevic has stoutly denied giving any significant
support to the Bosnian Serb armies that have ravaged large sections of Croatia
and Bosnia~Herzegovina. Indeed, in a script right out of Machiavelli’s Prince,
Milosevic has even attempted to paint himself as an honest arbiter between the
Bosnian Serbs and their Moslem enemies. Whereas conventional military attacks
are susceptible to fairly straightforward processes of inquiry, and hence to
authoritative determinations that armed aggression has taken place, unconven-
tional warfare is not.

The problem of inquiry has an additional dimension inherent in the institu-
tions of liberal democratic societies. The news media, which might be expected
to act as effective ferrets, often wind up focusing on the covert activities of
democratic societies and neglecting those of their adversaries. This should not
be surprising. Journalists are as full of biases as the rest of us mortals. They are
frequently liberal, suspicious of their governments to the point of cynicism, and
full of crusading zeal to expose and cleanse the supposed impurities of their own
societies. They are skeptical of information or intelligence supporting govern-
ment claims, and their investigative processes and reporting are affected by the
partisan and combative nature of the democratic political process of which they
are an integral part. Among the first news item to reach the United States from
Grenada following the 1983 intervention was a report of the discovery of a
substantial cache of old Springfield rifles at a large warehouse near St. George's.
The reporters’ subtle inference, explicitly articulated by many editorials ridiculing


208 Legal & Moral Constraints on Low-intensity Conflict
Notes

*Colonel Eckhardt is Director, National Security Legal Studies at the Army War College,

1. O'Brien, Special Operations in the 1980s: American Moral, Legal, Political, and Cultural Constraints, Special
Operations in US Strategy 53-84 (Barnett, Tovar, and Shultz, eds. 1984).

2, Id, at 55-56.

3. Id, at 71.

4, See GOLD, EVASIONS: THE AMERICAN WAY OF MILITARY SERVICE 5-6 (1986); Philip Gold
provides a succinct articulation of the usefulness of the just war tradition. The just war heritage, then, is far
more than some philosophical tinker toy, designed for the amusement of pedants and obscurantists far removed
from the battlefield. It is also more than a simple ethical checklist whose mechanical use guarantees either moral
decision making or prudent policy. Rather, the just war heritage provides a conceptual framework within
which the individual must evaluate his or hee responses to armed conflict, and then communicate those responses
to the larger society, and to society’s agent, the State. And the just war heritage also provides the conceptual
framework by which society and State must justify any recourse to arms, and the standard by which that recourse
must be judged.

5, President's Address to the Nation, United States Air Strike Against Libya, 1986 Pub. Paper 499 (April
16, 1986); To make a practical teaching point, I often provide my students with a copy of this address and with
the just war criteria requesting that they outline President Reagcn’s remarks from a just war point of view.
This exercise underscores immediately the relevance of the just war study that follows.

6, LEWY, AMERICA IN VIETNAM 223-270 (1978).

7. O'Brien, supra at 181.

8. Id. at 191.

9. Philip Gold articulates the fallacies in thinking that international law is the answer for determining
whether a country should go to war.

. « reasoning upholds a basic premise of contemporaty international law: that nations may retort
to arms only in individual or collective self-defense, and then only in response to a prior and clearly
defined act of territorial aggression, In effect, this formulation . . . declares that response to physical
invasion constitutes the only legitimate casus belli, adding to the implicit corollary that if everyone is
forbidden to shoot first, no one will shoot at all.

On the surface, this seems an eminently logical piece of reductionism, and quite in keeping with
allegedly traditional American values. First shot equals aggression; aggression equates to international
crime; defense thus automatically acquires both legitimacy and limitation—the limitation of repelling
the aggressor, but no more. All in all, a tidy litde formulation in which the only relevant question
becomes, ‘Who started it?

«+s itignores the existence ofa continuum of conflict, especially the exceedingly complex twentieth
century continuum, Few moder conflicts ever exhibit such <n unambiguous character. ‘Who started
itt’ is rarely as simple a question as ‘Who fired first?” Further, most contemporary conflicts exhibit a
‘mixed’ character: part civil war, part ideological struggle, part international (or proxy) war. In such
cases, the question of who fired first may prove not only irrelevant, but also impossible to determine.

‘See GOLD, EVASION: THE AMERICAN WAY OF MILITARY SERVICE 15-17 (1986).

10, SUMMERS, JR., ON STRATEGY II: A CRITICAL ANALYSIS OF THE GULF WAR 5-59 (1992); See
also, SUMMERS, JR., ON STRATEGY: A CRITICAL ANALYSIS OF THE VIETNAM WAR. 33-70 (1982).

11. WEINBERGER, FIGHTING FOR PEACE: SEVEN CRITICAL YEARS IN THE PENTAGON 433-445,
(1990),

12, ECKHARDT, ‘WE THE PEOPLE’ GO TO WAR IN THE RECOURSE TO WAR: AN APPRAISAL OF
THE “WEINBERGER DOCTRINE” 69-74 (Sabrosky and Siaone eds. 1988).

13, JOHNSON AND WEIGEL, JUST WAR AND THE GULF WAR. 48-49 (1991).


Chapter IV

Low-Intensity Conflict and State Sovereignty:
A Philosophical Analysis

by
Fernando R. Teson*

|. Introduction

hroughout the history of philosophy, the morality of war has been the

subject of intense concern and debate. I suspect that the reason for the
philosophers’ preoccupation with war is that there is something terrible,
awesome, final, and conclusive about the physical combat of nation against
nation, of army against army. In a very primal way, the frightening reality of
war tests the limits of reason, and thus of civilization itself. It is not surprising,
therefore, that no less an eminent thinker than Immanuel Kant, the champion.
of rationalism, called war “the judgment of God,” where the outcome
determines the side on which justice lies.” This seemingly irrational trait of
war is, I think, the reason philosophers have bravely tried to analyze and
understand it with the tools of rational moral thinking, to domesticate it, as
it were. The attempt to set moral limits to violence, and to war in particular,
illustrates one of the attributes of enlightened civilization: the recurrent
attempt to substitute civilized society based on principled reason for the
lawless state of nature, where force and power reign supreme.

In contrast, the vast assortment of operations that have been lumped together
under the label “low-intensity conflict” seem to have been excluded from the
domain of moral analysis.> There are at least two reasons for this omission.
First, unlike open war, low-intensity operations usually do not cause as much
damage and suffering.* Second, and most importantly, there is a substantial
difference between the common perception of the morality of each: except
for the pacifists, conventional war (rightly or wrongly) has traditionally
exhibited an aura of courage, dignity, chivalry, and decency. To many, having
fought in a just war (e.g., with the Allies in World War II) is the mark of the
virtuous citizen who is ready to defend his country (and other people’s
countries) against enemies, and (perhaps) to uphold good against evil.

In contrast, low-intensity operations have been thought of as secretive, sleazy,
sneaky, and not particularly demonstrative of courage or similar virtues.° For one


PART TWO

LEGAL CONSTRAINTS ON LOW-INTENSITY CONFLICT:
INTERNATIONAL LAW AND STATE SOVEREIGNTY


234 Legal & Moral Constraints on Low-intensity Conflict

The third step in what I perceive to be a rather long trail, is the one that you
have in front of you today, in which Professor O’Brien suggests a supple-
mentation of international law with just war tradition.

My students felt quite strongly that they not only had to learn the terminology
of these two disciplines, but learn of their traditions and benchmarks, and
internalize them because they, in fact, would be called upon to explain and justify
what they did, and that is precisely what happened. There began to be another
aspect of operations. One not only must plan, train for and execute a military
operation; it appears that now one must justify, or perhaps a better verb is explain,
what one has done. From the time when President Reagan defended that
particular bombing raid on Libya, military officers have stood before the cameras
and have had to justify or explain what has transpired.

I think that Professor O’Brien seeks more than the commingling of two
disciplines. What he is after is a rigorous interdisciplinary approach to policy-
making when it involves the use of force. I would add to just war theory and
domestic and international law; history in large doses, especially history of the
profession of arms, and certain management information. An example of what I
consider to be classic writing of this kind is Gunther Lewy’s, America in Vietnam.
Chapter seven, entitled, “American Military Tactics and the Law of War,” is
absolutely must reading for any military officer for thinking about Vietnam.

Concerning the paper Professor O’Brien has presented today, I must admit
that I am repulsed, attracted and intrigued by his approach. The advantage of the
law to me is certainty. Many would argue that nebulous just war theory not only
does not add certainty, it detracts from it. In our secularly-trained society, instinct
tells us that one should be very careful not to let religious ideas, ifyou will, intrude
into the law. Will we selectively use just war theory only if the law is not on our
side and we need to bolster our argument? My memory is that when President
Reagan discussed the raid on Libya, the speech was long on just war, and very
short on the law. Simplistically, self-defense under the United Nations Charter
is our only just cause. So why talk about just war anymore? Well, I think there
are some practical reasons we do this. As I intimated at the beginning of my
remarks, it is this discussion, this practical reaching of consensus, that is key. I
would say that what Professor O’Brien seeks is the linking of the Clausewitzian
trinity of the people, the military, and the government in an effective union that
can only be done in a democracy through intelligent debate.

In closing, it seemed to me that the Weinberger Doctrine of 1984 reflects this
process. That particular doctrine, which purportedly is our public debate on using
force and going to war, does not mention the United Nations. If does not
mention international law. Does not even acknowledge any legal prohibition
against the non-defensive use of force. It came at a period of time when there
‘was a general disenchantment with the relevance of international law to foreign
policy; when one side appeared to thumb its nose at the law. It seems to me that


Panel Discussion 295

in his bonnet and he’s determined, he can impose policy on our bureaucracy, as
complicated as it is. Congressional oversight and the oversight of the larger
international community can sometimes help us to do what we want to do, and
provides us at other times with an opportunity to rethink our ambitions.

JUDGE SOFAER: I’m not going to comment, Tom, on the parts of your
remarks that I agree with, and there was much of what you said that I do agree
with. I didn’t try to deal with the preemption problem. I tend to believe that it
is more a problem of tactics or judgement than of law, and properly so.

Coming to the key issues that you mentioned at the end, I don’t mean to
suggest that Congress can’t be right. I think it was right in the Packard
Commission. I think Congress has been right on many things that have a very
important bearing on our military capacity. But Congress does more than just
review things or exercise its legal rights. We are aware of repeated extralegal
efforts by Congress to influence events and perform tasks that are really Executive
Branch responsibilities. There are many areas, particularly in low-intensity
conflict, where Congress has approved the kinds of activities in advance that we
‘want to engage in, and yet wants to be involved in reviewing their implemen-
tation. We just have to say no to that and go ahead and exercise executive power
and take the licks that are associated with the job.

PROF. FARER: Why? Why do we have to say it? You know, Abe, you can’t
deal with 445 members of Congress, but why can’t you deal with five, or ten?

JUDGE SOFAER: Well, you can’t because you don’t just deal with them.
You deal with their staffs and then you deal with the Washington Post. Either
you’re going to be the Executive and exercise your constitutionally mandated
power, or you change the nature of our government. The President, the
Secretary of State and the Secretary of Defense don’t have their jobs in order to
go sit down with the Chairman of the Senate Armed Services Committee,
however great a guy he is, to implement a rescue operation. Chairman Aspin
doesn’t oppose rescue operations; Congress has authorized them. They don’t
oppose the seizure of terrorists who have killed Americans abroad; they’ve
authorized it in a criminal statute. Yet, he has said to me, this is on the record,
“Why can’t you just let us come down there and talk to you about each of these
things when you're planning to do them,” precisely in the spirit that you just
recommended. I said, “Because I have my job and you have your job and I’m
not going to give you my job. That’s why.” That’s what it all amounts to
historically, and that is how it is today. Now, Congress wanted to take my job.
That’s what Hamilton and Madison said would happen. You know, I interpret
treaties, that’s my job, but I’m not going to give Congress my power to interpret


230 Legal & Moral Constraints on Low-Intensity Conflict

Finally, the criteria of right intention particularly involves sticking to the just
cause and not trying to add to it and then take advantage of it. That might be a
problem in the kind of low-intensity conflict that we're talking about.

Overall then, I would say that the war decisicn component of international
law is rather fair, as you’d expect it could be, but not sufficiently flexible to deal
with many different kinds of situations, particularly those that are below the level
of conventional international war. I want to emphasize that I’m not suggesting
that we should rely on just war doctrine because it allows us more latitude in
justifying our policies. I would argue that in many respects, it might be more
difficult. There might be situations where we could legally justify recourse to
armed force, but after looking at the total calculus of proportion, would decide
no, this is not a prudent thing to do.

I won’t go into detail on war conduct law with respect to proportionality and
discrimination, except to make one point. The war conduct law requirements
of just war doctrine are more demanding than international law for this reason.
In international law we distinguish sharply between the war decision law and the
war conduct law. We say everybody has to behave themselves according to war
conduct law, irrespective of the justice of the cause, which is a good policy. Just
war doctrine asks that assessments of proportionality be made, not only at the
strategic and the tactical level, but also at the grand strategic level. So one would
consider military practices such as search and destroy in Vietnam, which might
be perfectly justifiable in terms of military operational necessity, and perhaps
conclude that they were counterproductive to our larger ends.

Now, I'd like to take a look at a couple of issues that were raised in the mandate
I was given, and consider how just war thought rnight be applied to them. One
issue that was raised is that of deception. I regret: that I didn’t have time to go
back as Father Winters did into the classics of just war doctrine, because I think
I might have found something there about deception. But, I took an easy way
out and I found what I thought was pretty good material from international law
which I could use to substitute in this case for just war doctrine. There is some
relevant guidance on deception and I have it in my paper. Army Field Manual
27-10 of 1956 cites the Hague Rules of 1907, Convention IV, in Article 23 (f),
“It is especially forbidden to make improper use cf a flag of truce, of the national
flag, or of the military insignia and uniform of the enemy as well as distinctive
badges of the Geneva Convention.” The Hague Rules in Article 24 also provide,
“Ruses of war and the employment of measures necessary for obtaining infor-
mation about the enemy and the country, are considered permissible.” The
meaning of Article 23, I think, is clear. But the Army’s interpretation of Article
24 is more complex. A distinction is made between good faith and treachery or
perfidy. Now, you understand we're talking about war and relations between
enemies. In the case of counter-narcotics operations, you would be dealing with
criminals. It is conceded that the line between the two is “indistinct.” FM 27-10


148 Legal & Moral Constraints on Low-Intensity Conflict

cannot be met under contemporary conditions, and thus conclude that just wars
are an impossibility.

Leaving these latter misusers of the idea of just war aside, my own position is
that we should speak of just war tradition, not simply one doctrine or another,
understanding the tradition to include a number of related streams of thought
that are reflected in the diversity of perspectives found in current just war debate.
Just war is a historical tradition formed by experience and reflection, including
much that is neither specifically theological (or even religious), nor philosophical.
It has been strongly influenced by international law, the traditions of chivalry
and soldierly practices derived from the experience of many battles.

I like to describe just war tradition as a whole by the metaphor of a river
flowing through its delta toward the sea. The common stream forms, separates,
and forms again, with the main flow now being carried by this channel, now by
that one. When all its parts are understood together, just war tradition represents
a cultural consensus on when war is justified and what limits should be observed
in fighting justly. This consensus has its deepest roots in classical and biblical
antiquity, came together coherently in the high Middle Ages, and has since
developed great richness by responding to changing historical conditions. The
moral wisdom contained in the tradition has coalesced in certain formal criteria,
each of which is informed by a deep and thematically diverse background of
historical experience and moral reflection. When seeking to apply this tradition
to contemporary issues, I consider the historical weight of meaning present in
each of the relevant criteria. Ideally, this becomes a dialogue in which the wisdom
of others who faced these problems long ago illuminates the perplexities that
surround our deliberations about the use of force in the present.

In the first part of this paper I develop in more detail the view of just war
tradition as a historically shaped body of moral wisdom on the justification and
limitation of war. In the second part I examine the implications of this tradition
for the moral conduct of low-intensity warfare. | conclude the paper by arguing
that the moral criteria of just war should be understood as “rules of the game”
for the involvement of American forces in low-intensity conflict.

|. What Is Just War Tradition?

A. Main Features and Provisions of Just War Tradition

All major cultures, over the course of their development, have produced
normative traditions regulating the use of force. This function is performed in
western culture by the just war tradition. It is a moral teaching in the broadest
sense, expressing fundamental values relating to the practice of statecraft and the
use of force by statesmen. It is important to note, though, that systematic moral
reflection has been only one of the major contributors to this broad tradition,


Coll and Shultz 337

the Cold War set in. Under the National Security Act of 1947 he established the
CIA. Its broad charter authorizing it “to perform such other functions and duties
related to intelligence affecting the national interest” has been interpreted to
include the use of secret means to influence politics and events in other
countries.“

Nevertheless, at the time there was disagreement over whether the CIA should
be involved in covert action. Many wanted to limit its mission to the collection
and analysis of information. As it became evident that the Cold War would draw
the United States into protracted conflicts, a new National Security Council
directive, NSC 10/2, established in 1948 the Office of Policy Coordination
(OPC), with the responsibility to devise and carry out the full range of covert
actions. In 1952, this office was merged into the CIA’s Directorate of Plans, later
renamed the Directorate of Operations.

The language of NSC 10/2 was explicit in stating the need for covert action:
“The National Security Council, taking cognizance of the vicious covert
activities of the USSR,, its satellite countries and Communist groups to discredit
and defeat the aims and activities of the United States and other Western powers,
has determined that, in the interests of world peace and U.S. national security,
the overt foreign activities of the U.S. Government must be supplemented by
covert operations.”*© In other words, covert action was an instrument of policy
and was to be used in a prudential manner to counter Soviet operations. In the
words of one former CIA officer: “the creation of OPC was a pragmatic decision.
No question of morality or legality intruded into the Cold War climate of the
times.”

Both the Truman and Eisenhower Administrations used covert action as a
pragmatic instrument of statecraft. Whether they always set aside questions of
ethics and morality is open to debate. However, it was at that time that covert
action came to be identified with the adage that “if we are to compete... we
may have to be as nasty as our adversaries.” Several recent writers on U.S. covert
action, who are also among its most vigorous critics, argue that Presidents
consciously adopted this standard in the conduct of secret operations.“® They
point to what they believe to be the acceptance of the so-called “Doolittle
standard” as prima facie evidence of the decision on the part of Presidents,
throughout the Cold War, to separate democratic values from the pursuit of a
realist foreign policy based on pragmatism and power politics.

Lt. Gen, James Doolittle was commissioned by President Eisenhower in July,
1954 to report on CIA covert activities and to “make any recommendations
calculated to improve the conduct of these operations.” His report was tough-
minded and action-oriented:

It is now clear that we are facing an implacable enemy whose avowed objective
is world domination by whatever means at whatever cost. There are no rules in


Panel Discussion 283

in print these sort of abstract, scholarly and gentle statements by people like Lou
Henkin, and he is a wonderful man, they have credibility. But in that room, at
that moment, the credibility of this point of view was completely shattered, even
among people who were overwhelmingly hostile to my relatively expansive view
of the concept of self-defense.

Limiting self-defense to responses to armed attacks by regular forces of one
State against the territory of another, would have grave consequences for
American interests. On the one hand, the U.S. would be deprived under such a
view of the ability to claim it is acting in self-defense when it responds to
low-intensity techniques, such as acts of State-sponsored terrorism aimed at
Americans outside the U.S. Other States would thereby be free to use low-in-
tensity techniques short of an armed attack against the U.S. with greater freedom
than if such actions were understood to trigger the right of self-defense. On the
other hand, since the ability to invoke such countermeasures is theoretically
available to Professor Coll, as a practical matter we could not, and should not,
utilize the full range of such techniques. Our domestic moral and legal traditions
and constraints would strongly inhibit aggressive actions, even if they did not
amount to overt armed attacks.

Another problem of particular relevance to low-intensity activity, especially
when covert, is the legal position ofa State that uses persons other than its own
armed forces or avowed agents, to implement its aims. This is one of several areas
in which the U.S. has shown an unacceptable inconsistency in its application of
legal principles. In general, no State should be able to evade any measure of
responsibility properly attributable to it, for a given use of force or other action
merely because it uses persons who have no other association with it to
implement that policy. Of course, one who supplies arms to a nation or to an
individual, bears no responsibility for unintended results beyond what could
reasonably be expected to occur. But if we supply a bomb to some insurgents
for the purpose of causing an illegal act to be performed, or with a reckless
disregard for illegal consequences, we are surely responsible for such acts in some
appropriate degree. We held Libya responsible for using terrorists for the purpose
of killing Americans, and these were the words used by the President: “To the
same extent Libya would have been responsible, had it used its own armed forces
for that purpose.”

Other areas in which the U.S. has had difficulty coming to grips with problems
associated with low-intensity conflict include the following: the principle that
no illegal act can be treated as lawful, merely because it is done covertly rather
than overtly. In other words, covert operations are designed to enhance effec-
tiveness, not to evade accountability. There is no moral, legal, or any other basis
for claiming an evasion of accountability through the use of a covert technique.
And there are many of our non-lawyer leaders who need to be taught that lesson
over and over again,


48 Legal & Moral Constraints on Low-Intensity Conflict

multilateral options even when it is clear effective action at that level will be
blocked.

With respect to the second point, I want to make it clear that I am not urging
the United States to become a lawbreaker in order to deal with current
low-intensity conflict problems. We receive tremendous benefits as a nation from
living in a world governed by the rule of law, and we ought to go to great lengths
to uphold the principles which we embraced in San Francisco in 1945. However,
if the world community proves unwilling or unable to give teeth to the
Charter—particularly in respect to its prohibitions against armed aggression—the
time may come when we need to adapt to the rules of our adversaries. Indeed,
this was the expectation of Senator Arthur Vandenberg, who co-chaired the U.S.
Delegation to the 1945 San Francisco Conference and later helped persuade the
Senate to give its advice and consent to ratification of the U.N. Charter. In
presenting the treaty to the Senate, Vandenberg said:

I want a new dignity and a new authority for international law. I think American
self-interest requires it. But... this also requires whole-hearted reciprocity. In
honest candor I think we should tell other nations that this glorious thing we
contemplate is not and cannot be one-sided. I think we must say again that
un-shared idealism is a menace which we could not undertake to underwrite in
the postwar world.”

It would be immoral for the law-abiding and peace-loving members of the
world community to sit idly by out of respect for the rule of law while
lawbreaking States carry out repeated acts of unanswered aggression. We hope
that the international peacekeeping system will be strong enough to respond
effectively to aggression; but if it fails, at some point it may become necessary for
us to tell flagrant aggressors that we have no choice but to play by their rules.
This, I believe, is essentially what the United States did during the Reagan
Administration in dealing with Soviet and Cuban intervention in Nicaragua, the
Soviet invasion of Afghanistan, and other elements of the so-called “Reagan
Doctrine." International law is at present still an imperfect means of maintaining
international peace, and by informing a particularly notorious lawbreaker State
that we have no choice but to play by the rules of behavior it has selected, we
may ultimately promote greater respect for the rule of law by providing aggressor
States with an incentive to obey the established rules of international behavior.

Benefits Of Multilateral Approaches

International law does not favor the use of armed force by individual States,
and even when self-defense provides a full legal justification for military measures
there is an understandable preference for multinational solutions. Obviously, if
the United States or a key ally were to be attacked by a major military force, few




O'Brien 187

effort to resolve the controversy in the War Powers Resolution” has not been
very successful. Presidents from Ford to Bush have, in effect, refused in principle
to accept the War Powers Resolution as binding but have undertaken to
recognize the role of Congress by informing its leaders of actions covered by the
Resolution.” In the case of Desert Storm, the President, after hesitating and
claiming he did not need to have Congressional authorization, moved to obtain
itin the Joint Resolution of January 1991.73 This authority, of course, was sought
for a much greater military venture than involvement in the more typical low
intensity conflicts. Certainly the failure of President Johnson to obtain a decla-
ration of war in the Vietnam conflict is widely seen as a mistake, not only on
legal grounds but in terms of the need to commit the Congress and the nation
to support of the conflict.”

Just war doctrine would encourage policies of obtaining clear legal and
political authority and support for commitment of American forces to war, even
wars of very low intensity. The problem, of course, is that U.S. involvement
may be very low-profile or even clandestine. It may be awkward or imprac-
tical to have a major debate followed by Congressional action in order to
carry out a low-profile intervention in confused situations, such as El Salvador
and Nicaragua. Nevertheless, ordinary prudence, based on experience with
mismanaged interventions, suggests that if competent authority is not assured,
low-intensity conflict operations—often risky at best —will not be sustained and
successful.

As remarked, just war doctrine has not been sufficiently developed with
respect to the issue of competent authority in revolutionary movements. Lacking
the kind of constitutional and other legal guidelines applicable to an incumbent
government, revolutionary leaders should demonstrate their popular mandate to
use armed force against an incumbent regime. This is usually a difficult task.
Many revolutionary leaders follow the Leninist tradition of the self-appointed
“vanguard of the proletariat” that allows them to decide when and how a
revolution should take place and what kind of regime should result if it is
successful. This may lead to abuse by the vanguard of the proletariat but it must
be acknowledged that sometimes this is the only way that a needed revolution
can get off the ground. The populace may be too apathetic or frightened to
commit to a revolution. In these circumstances it may be difficult for revolu-
tionary leaders with legitimate causes to demonstrate popular support. On the
other hand, there have been many cases in which revolutionary leaders terrorized
and intimidated an unsympathetic populace and obtained its support by coercion.

If the intervening power is supporting the insurgents it should require
evidence, not only of the essential justice of the revolutionary cause, but of
substantial uncoerced popular support for the insurgents. However, if the
intervention is on the side of an incumbent regime’s counterinsurgency efforts,
it would seem that the issue of competent authority in the insurgent forces is not


286 Legal & Moral Constraints on Low-Intensity Conflict

credibility in this area with steady, realistic, and honest advice, keeping in mind
that to say that the law allows a given action, does not mean it should be taken;
whereas to say the law proscribes a given action does mean it should not be taken
irrespective of the views of duly elected or appointed individuals as to its moral
and political wisdom. The law’s role in evaluating low-intensity conflict, there-
fore, should be to force decision makers through rigorous and comprehensive
examination of all the relevant circumstances on each of the issues presented.
I hope my brief comments today are of some help in pointing the way.

RADM HARLOW: Thank you. Ken, you have the floor.

MR. deGRAFFENREID: It’s a pleasure for me to be here this morning to
share this panel with Admiral Harlow and my good friend, Judge Sofser. I was
asked to consider the moral and legal constraints on successful U.S. engagement
in low-intensity conflict. So the purpose that I have this morning is on a rather
more practical level than, perhaps, some of the discussion that we had yesterday.
I will try to speak from the point of view of a policymaker involved in at least
one aspect of low-intensity conflict for about ten years.

Professor Coll mentioned that I was on the staff of the Senate Intelligence
Committee. I did that for four years in the late ’70s when I was intimately
involved in covert action issues and was one of the principal drafters of the 1980
Oversight Act, which attempted to provide some ground rules for congressional
oversight, particularly in the area of covert action. Following that, I spent six and
a half years at the White House as the intelligence policy person on the National
Security Council staff, where I was responsible for looking at all of the covert
actions coming forward from the CIA and, to a lesser extent, the Department of
Defense, for most of the Reagan period.

From that perspective then, I want to say a few things about one aspect of the
moral constraints and the moral underpinnings of U.S. engagement in low-in-
tensity conflict. I will specifically address the tradition of American political values
that have influenced our foreign policy in general, and particularly, our use of
force. Much of this will be familiar to many of ycu, and I will only make a few
important points. Then I want to descend to the mythical White House basement
and talk a little about how moral and legal constraints affected the process by
which the United States developed and implemented one example of covert
action policy in low-intensity conflict.

To begin all this, I really have two propositions to make. The first is that the
United States today has a greater capability to engage in low-intensity conflict
than perhaps ever in its history. The creation of the Special Operations Com-
mand, the Assistant Secretary for Special Operations and Low-Intensity Conflict,
and a more sophisticated and mature approach to these issues on the part of the
Congress and within the intelligence community, have all enhanced the means


132 Legal & Moral Constraints on Low-Intensity Conflict

My final point then would be, I think, one that most of us share, which is that
the current debate about the moral limits of low-intensity operations, especially
in relation to the norms of sovereignty, .is very much a continuation of the
absolutely classic debates about the ethic of State power that go back to the
Renaissance and beyond. In a more proximate sense, and I think Professor Farer
brought this out quite well, we are engaged in more familiar debates about things
like the limits of American armed intervention . Since I’ve revealed myself as a
stick-in-the-mud conservative here, I will say that not only do we have to place
a lot of reliance on international law, we have to be historians. We have to go
back and look at the debates of the preceding couple of decades. There’s probably
more there to be learned than we realize.

Thank you.

PROF. REISMAN: Thank you very much Professor Nardin. .

As you will recall, my function as chairman is to provide a brief summary of
the exchanges in the panel before opening the discussion up for questions and
comments from the floor.

This has been a particularly interesting and intriguing exchange of views and,
like the previous panel, I think an observer would find much more in common
between the two speakers than they, themselves, may have appreciated. And, at
the same time, there were some very interesting divergences.

Professor Teson undertakes to develop, using the techniques of moral philos-
ophy, a theory for the circumstances under which it is appropriate to conduct a
low-intensity operation, which he presents in terms that, I think, are quite
congruent with those used by the practitioners of the art. He is careful to say that
this is an exercise in moral theory and not an exercise in prudent policy or
jurisprudence, that is, an explanation for those who must make decisions as to
when and under what circumstances to take action. A moral theory tells you
whether something is right, but doesn’t necessarily tell you whether it’s prudent
in some circumstances to do it. He also suggests, since his view is framed in terms
of moral theory, that it’s not a theory of international lawfulness. But, in fact, I
think Professor Teson is caught up here by his own training as a lawyer, and as
an excellent jurist. His selection of many of the terms make this theory intersect
at critical points with international law, and Professor Nardin may be fair in saying
that it tries to do more than philosophy can. Whether the theory is sound or not
is something we will have to decide. The word “sovereignty” is not necessary
for the theory. It would be enough to say that one could mount a low-intensity
conflict if a State lacks legitimacy. Linking that to sovereignty indicates that the
Professor is concerned here with a fundamental postulate of classic international
law, and that is that one State does not violate the sovereignty of another State.
And, the notion of human rights also leads to an intersection between moral
philosophy and international law. I don’t say this critically, but I think that these


Coll 19

worthwhile enterprise to explore the degree to which they may make a better
contribution to defense and deterrence against aggressive unconventional war-
fare, any serious study of unconventional warfare and of the perils it poses to
liberal democracies in the late twentieth century will have to go beyond the
realm of international law and organization and consider the wider range of policy
responses available to democratic States, including some forms of unconventional
warfare itself. If one accepts the proposition that effective deterrence contributes
to peace and is therefore a friend of peace, then consideration of such a wider
range of policy alternatives is a legitimate, indeed unavoidable, subject for
discussion.

The question of what constraints and guidelines should shape a democratic
State’s resort to unconventional warfare will be discussed elsewhere in this book.
‘What has been established here, however, is that unconventional warfare is an
old, persistent feature of international politics, present throughout different
periods with varying degrees of intensity. To pretend that unconventional
warfare does not exist, or that it is not a significant threat to American interests,
is illusory. A democratic State’s capability and will to resort to unconventional
warfare can be a powerful deterrent against its adversaries’ resort to it. At a
minimum, it can raise the political costs to such an adversary of using unconven-
tional warfare, and it can give the adversary a powerful incentive to explore a
more constructive and accommodative relationship. Awareness of the dangers
entailed in a democratic State’s resort to unconventional warfare is salutary, but
it should not be turned into a sweeping theoretical ban against it. Such dangers,
too real to be ignored, only remind us of the need for further thinking on how
unconventional warfare by democratic States should be carefully circumscribed
so as to limit its potential harmful effects, while retaining its usefulness as one of
several deterrent mechanisms available to democratic societies in a dangerous and
highly unstable world.

Even in the post-Cold War world unconventional warfare remains highly
relevant. Shortly after the collapse of Communism in the fall of 1989 it became
fashionable for a period of time to argue that whatever problems unconventional
warfare or “low-intensity conflict” had posed for international order during the
Cold War would become irrelevant in a world in which the Soviet Union no
longer would be financing or otherwise supporting such forms of violence. By
1995 such arguments seem less credible. It is true that Marxist-inspired insurgen-
cies are passé these days, and that with the exception of Colombia, Peru and
Guatemala, unconventional warfare has largely ebbed away in Latin America.
Moreover, as the confrontation between the Soviet bloc and the Western alliance
has disappeared, so has resort to unconventional warfare among the great powers
against each other at present. Yet, various forms of unconventional warfare
remain useful instruments of policy for a wide range of groups, nations and States
in the Balkans, the Middle East and the Persian Gulf, Central Asia, and large parts


Turner 51

As I will discuss below, I believe the April 1986 air attack on terrorist targets
in Libya was consistent with the doctrine of self-defense recognized in Article
51 of the U.N. Charter. But, even were it an arguable breach of the law, a case
can be made that Libya should not be allowed by the World Court to raise a
claim against defensive measures of self-help by other States so long as the
important principles of necessity and proportionality have been satisfied.

At the root of this suggestion is the idea that a State which refuses to constrain
its own conduct to the most fundamental rules of international law should not
be permitted to further weaken its victims by persuading the world community
to punish a defensive violation of the same rules. Why should the world
community accept such an approach? First of all, it is fair and equitable. But
almost of equal importance, such a rule would also strengthen deterrence and
provide additional incentives for radical regimes to comply with the law of the
Charter. It is well documented that the government of Libya significantly
curtailed its support of international terrorism in the months following the 1986
American attack,!® and it is difficult to argue that the attack did not ultimately
contribute to strengthening compliance with the rule of law. As already noted,
Senator Vandenberg emphasized in 1945 that U.S. acceptance of the law of the
Charter was premised upon reciprocal compliance by our adversaries;!? and if
other means of dealing with terrorism and other forms of low-intensity aggression
prove inadequate and require defensive measures of questionable legality, it might
be useful to explore equitable defenses.

The doctrine of “unclean hands” denies equitable relief to a petitioner whose
own conduct broke the rules or was unfair. Until more effective means can be
developed to compel radical regimes to comply with their international legal
obligations not to engage in terrorism or otherwise use aggressive force, it would
seem to be a reasonable request to ask that international law not direct its
immunity system against a peace-loving State which simply seeks to defend itself
(or other victims) against such unlawful aggression. In reality, I believe that most
necessary and proportional “defensive” responses to international terrorism or
other forms of low-intensity armed aggression will be permissible under the
theory of self-defense, but not all lawyers will agree. It therefore might be useful
to complement a claim of self-defense with the argument that, even if the
defensive response exceeded the limits envisioned by the authors of the Charter,
the initial aggressor—who has chosen not to abide by its clear international legal
obligations—ought not be able to further weaken the victim(s) of its aggression
by using legal measures against their defensive response. The most basic principles
of equity recognize the unfairness of such an approach, and the United States
should reaffirm the idea that equity is a part of international law.

There is a clear problem with this approach. Fundamental principles of equity
might well preclude Libya from bringing a claim against the United States for a
“reciprocal breach” of the use of force provisions of the Charter.” However,


174 Legal & Moral! Constraints on Low-Intensity Conflict

familiar argument from the more liberal “cosmopolitan” views of Charles Beitz
and many others.!*

Without entering at this point into the compelling question of whether such
a “liberalization” of just war tradition would be politically and morally wise, I
will confine myself to analyzing the historical claim that Professor Johnson
presents for his more permissive approach to reform intervention in the name of
the just war tradition.

In arguing that the just war tradition as a whole cannot legitimately be said to
favor a permissive approach to cross-border State actions designed to remove
from power petty dictators and/or drug traffickers, I propose to draw attention
not to the specific teachings about rights in warfare (jus ad bellum, jus in bello) but
to the overarching and controlling notion of justice, which is inextricably
intertwined with the analysis of just wars in any era. For just war theory is
obviously a corollary of theories about political justice itself. What, then, was the
conception of just politics in the eyes of St. Thomas (and John of Paris) and later
in the age of St. Thomas’ disciple Francisco de Vitoria? From such a foundational
inquiry we might come to a different interpretation of just war theory than
Professor Johnson has arrived at for the tradition as a whole.

Justice and the School of Paris:
St. Thomas Aquinas and John of Paris

The defining struggle of mid-13th and 14th-century Europe was the century-
long political and intellectual confrontation between the Holy Roman Empire,
on the one hand, and the forces of nationalism (in the Kingdoms of France, Spain
and Naples), on the other. Among the many conspicuous political contributions
of St. Louis IX of France was his steady defiance cf the legal claims made against
his authority by the Emperor. As early as 1254, Louis affirmed that his support
of imperial legal codes in France was a sovereign choice of the French Crown,
anxious to avoid distracting his realm by unnecessary legal innovation required
to fashion a new legal code for France alone. King Louis’ decree on the law
explicitly negates the imperial contention that the legal force of the ancient codes
was a symbol of imperial sovereignty in France.'?

In this political context, St. Thomas lent the weight of his own considerable
authority to King Louis’ cause by providing a philosophical argument for a
culture-bound and historically unique political order for the various ancient
realms constituting Europe.® St. Thomas’ own political, and consequently
moral, philosophy was largely particularistic and relativistic. King St. Louis’
successful effort to shield his own regal authority from the imperial pretensions
of legal uniformity throughout Europe had the good fortune to be able to call
upon the theological reasoning of one of the leading figures of the age.


282 Legal & Moral Constraints on Low-intensity Conflict

limited to situations in which the homicide involved is properly characterized as
a “murder,” in other words, a criminal act. So, I think that the legal limitations
on “assassination” are in good order, relatively good order. No President can be
given, nor would ever need, authority to murder people and so the issue really
is not, I believe, as difficult a problem for planners as it used to be.

In that connection, I might say that it’s my view that the flak we took over
this assassination problem during the early part of the Bush administration, was
the product of individuals within it who did not want the authority to support
insurgencies. Not just to kill people, but to support insurgencies. A way of doing
that was to broadly construe the assassination prohibition, and then leak that
construction to the press. This is something we see used in Washington, over
and over again, as a way of precluding options that our government planners
legitimately have before them. It took months to clean up that problem, but we
did it and I think Bill Barr certainly deserves enormous credit for it. I’m pleased
to say I played a constructive role. Jack McNeill was also involved in that, I
believe.

Low-intensity conflict also has many unusual qualities and poses unique
problems under international law that make it 2 deserving subject for separate
analysis. I will touch upon a few problems, by way of illustration, with respect
to activities involving the use of force and others involving controversial actions
clearly outside the scope of use of force limitations.

Perhaps the most dangerous notion in this area is the view that force may be
used in self-defense only in response to an armed attack in which regular forces
ofa State, in some manner, invade another State’s territory. Some who advanced
this view no doubt sincerely believe the U.N. Charter should be read so literally.
But such a reading of the Charter is not textually required, and is totally
inconsistent with the practice of nations throughout human history, including
the post-Charter period. Advocates of the notion that self-defense is so limited
are forced to make exception after exception to their vision of self-defense under
the Charter in order to account for such actions as the rescue at Entebbe, the
tight to protect nationals abroad, and the right to preempt attacks. These
“exceptions,” necessitated by such literal interpretations, undermine the integrity
of the Charter and leave it vulnerable to unprincipled ad hoc exceptions made to
suit the convenience of particular States or ideologies.

I must say in this connection, that Lou Henkin demonstrated integrity in a
debate with me at the New York City Bar Association over the Panama affair
when he defended this narrow interpretation of armed attack. In response to the
question whether he believed that the right of self-defense applied to a smaller
State on whose borders a larger State was accumulating a force for the apparent
purpose of invading it, he maintained that the smaller State had to wait until it
was actually attacked before it had the right to exercise self-defense under the
Charter. I wish events like this would get more publicity, because when you see


180 Legal & Moral Constraints on Low-Intensity Conflict

‘THE LATTER MIDDLE AGES at 108, 121-24, 211, 222-223 (1963). In these passages, references to judgement
by the community are constant.

‘The extension to non-nationals of the right to make judgements about the presence of tyranny on the part
of officials of governments may (or may not) be a sound instinct of the present age. I am aware, however, of
no historical grounds to argue that such a trans-border extension can be supported on the authority of the just
war tradition.

For these reasons, I would judge that Johnson's appeal to the tradition as an authority to support
low-intensity coercive actions against the States guilty of dictatorship or drug trafficking represents an extension,
rather than an application, of the tradition itself. Walzer seems closer to the historical tradition when he limits
intervention to a response to “massive violations of human rights,” identifying such violations as: “the
enslavement or massacre of political opponents, national minorities, and religious sects.” (JUST AND UNJUST
‘WARS, at 101,) From my reading of the authors, I would judge Walzer’s restriction of intervention to
quasi-genocidal acts to represent a more traditional instinct than Johnson’s proposed use of force against “petty
dictators and drug traffickers.”

11. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS (1979).

12. Ullmann, The Development of the Medieval Idea of Sovereignty, The English Historical Review 1-33 (1949).

13, The same insistence on the cultural determinants of moral obligation and political systems in St. Thomas’
political philosophy’ is found in WILKS, THE PROBLEM OF SOVEREIGNTY 140 (1963).

14, Fora concise summary of the career and contribution of de las Casas, sce Collard’s Introductory Essay
to his translation of de las Casas’ History of the Indies, ix-sadv (1971).

15, For the life and teaching of Vitoria, cf. HANKE, THE SPANISH STRUGGLE FOR JUSTICE IN THE
‘CONQUEST OF AMERICA (1949).

16, An interpretation of Vitoria’s teaching can be found in Winters, Freedom to Resist Coercion, Common~
weal, 369-72 (1991).

17. Testimony presented before the Subcommittee on Wester Hemisphere Afftirs, U.S, House of
Representatives, 17 July 1991, page 2.

18, Id. at 4-5.

19. The Washington Post, 23 December 1989, at A7.

20. Id.


292 Legal & Moral Constraints on Low-Intensity Conflict

constraints through the U.N. Charter and through other limiting international
agreements and rules. He discussed how these rules provide a special challenge
to the conduct of low-intensity operations, but observed that the impact of the
U.S. War Powers Resolution may, perhaps, not be as onerous in low-intensity
conflict as it would be in the case of the traditional use of regular forces. The
Judge made the point that when low-intensity conflict operations are ofa shorter
duration and do not involve overt combat, they may not trigger the War Powers
Resolution.

Judge Sofaer touched on the sensitive issue of congressional oversight of covert
operations in the context ofa more general discussion of intelligence matters. In
my judgement, a critical element ofa proper and effective low-intensity program
is an ample and credible intelligence program. Most information at this lower
level of intensity is far from clear. It is fragmented and often contradictory. In
this arena, we are involved in an ambiguous stage of a national security threat
and, therefore, good intelligence backup is essential for sound decision-making.
As was pointed out, however, intelligence, or “espionage” as some style it, places
us on the margin of moral and legal conduct. It is a very sensitive and difficult
issue to grapple with, particularly in an unclassified forum, as is the case here
today. Nonetheless, one must think in terms of this underlying need if we are to
effectively discuss all aspects of the United States policy dealing with low-inten-
sity conflict.

The Judge also observed that the U.S. must cme to grips with the fact that
‘we cannot escape responsibility in the intelligence gathering arena by “hiring”
informal agents. Such an approach must be carefully controlled in any program
that we would envision for the future.

Judge Sofaer and Mr. deGraffenreid talked in terms of a new international
order with particular reference to the positive part played by the U.N. Security
Council in the DESERT STORM operation. It took on a new and expanded
role in a manner that perhaps none of us in the room would have expected in
our lifetimes. While supporting such an international approach, we must be
careful that the use of the Security Council, or any other international fora, does
not restrict our ability to act unilaterally. We must carefully find our way through
this thicket so as to not preclude unilateral action should the requirement arise;
but neither should we turn our backs on the promise for international coopera-
tion and stability offered by multilateral diplomacy.

Ken deGraffenreid proposed two factors that impede our ability to act in the
area of low-intensity warfare. First, he considers that the U.S. may lack the will
to back up low-intensity engagements, particularly early in the threat stage when
the need for action is less than clear.

Secondly, he points out that American traditions of moral superiority and
aloofness from the rest of the world tend to make Americans think in absolute
terms of right and wrong. I cringe at this expression of “moral superiority” but


88 Legal & Mora! Constraints on Low-Intensity Conflict

thing, low-intensity operations are the domain of specialists (spies, commando
forces, hit squads, and so on), and therefore it is harder to associate those
operations with a general, grass-roots, patriotic effort to defend one’s just
institutions and defeat the enemy who threatens them.’ In addition, low-intensity
operations are often covert and without warning. And last but not least, they are
often aimed at non-military targets.

Some people might refuse to explore the moral justification of low-intensity
operations on the grounds that they are a necessary evil—strategically required
sometimes, perhaps, yet incapable of being justified with rational moral argu-
ments.® Yet, unless one is an extreme pacifist, surely it is not possible to take the
position that all low-intensity operations are morally unjustified. (If one is an
extreme pacifist, low-intensity operations are always unjustified for the same
reasons war is.) The question then becomes: if we accept that sometimes war is
justified, are there any additional arguments that bar low-intensity operations in
peacetime? Some may argue that such additional arguments are related to State
sovereignty. When the reasons that justify war apply, then most bets are off with
regard to State sovereignty. But if the reasons to wage open war do not apply,
then State sovereignty re-emerges in full power, and low-intensity operations
are prohibited out of respect for the sovereignty of the target State. Put differently:
if the reasons that justify war obtain, then a government has a right to wage war;
ifthey do not, then no infringement of the sovereignty of another State is justified.
On this view, State sovereignty is an all-or-nothing concept, which only collapses
when the target State is on the wrong side of a just war.
~ In this paper I explore the issue of the justification of low-intensity operations
in the light of the principle of State sovereignty. I reject the premise that State
sovereignty is an intrinsic value, or an all-or-nothing concept. State sovereignty
is instead an instrumental value and therefore, moral reasons have to be supplied
in its support. It follows that whatever moral reasons are given to justify
low-intensity operations, they must compete against the moral reasons that
support the respect for State sovereignty.

I argue that a low-intensity operation is morally justified when it meets the
following conditions:

1) The ends of the operation are morally justified goals under just war
theory. A war has a just aim when it is waged in the defense of persons and,
derivatively, of just institutions,

2) The government contemplating the operation is a legitimate govern-
ment,

3) Either the target State or the target government are illegitimate.


Johnson 151

play. The result is a logic quite different from that obtained by beginning with
those criteria and making the entire jus ad bellum decision hinge on them.

Equally important, theorists writing in an age of holy war, most notably Vitoria
and Grotius, argued for a conception of just war that was universal in scope, not
simply an artifact of western culture. They advocated principles based on right
reason alone, not religion or other ideological belief. “Difference of religion,”
Vitoria wrote, “is not a just cause for war.” Moreover, he maintained, Indians
of the New World and Spaniards alike could understand the requirements of just
war, which derive from nature, and both were bound by them.”

Following the implications of this reasoning in the present day means rejecting
not only justifications for war rooted in religious claims but also, more broadly,
those rooted in other sorts of ideologies that make similar claims to absolute truth.
With the expiration of Communism as an engine of historical change, the
urgency of the latter concern has begun to wane. At the same time, though, the
specter of holy war, which had confidently been thought to have disappeared at
the start of the modern period, has reemerged. The threat of Islamic militance
in the Mideast has been joined by growing Buddhist and Hindu extremism in
the subcontinent. Hatred between Protestants and Catholics also continues to
fuel strife in Northern Ireland. Faced with such challenges, just war theorists must
supply two different sorts of responses. They must first make a special effort to
expose the use of spurious religious imperatives to justify aggressive designs. A
natural outgrowth of their effort should be the formulation of moral criteria by
which this pernicious misuse of religious authority can be condemned and
fought—an effort which may at times require the use of military force. On the
other hand, just war tradition must not be used so as to undermine its own claims
to provide a standard for the use of force that is fair, recognizable through a
common human reason, and universally binding. Present-day interpreters of just
war tradition should keep both these needs in mind.

B. Just War Tradition and American Legal and Moral Thought on War

There are two ways to think about the presence of just war tradition in
American culture, one formal and the other less so. That such a presence exists
is of considerable importance for this discussion. It means that the use of just war
criteria does not impose alien norms on the American moral consciousness. Part
of the task of interpretation, then, is to bring such norms and their implications
to light.

Thinking informally about the presence of these just war norms, James F.
Childress has argued, as noted above, that they establish “prima facie duties” —
obligations to behave in accordance with their requirements unless other norms
and other obligations, in a specific case, override them.® A less technical way of
saying this is that the various categories that make up the jus ad bellum and jus in


110 Lega! & Moral Constraints on Low-Intensity Conflict

Before considering Professor Teson’s argument, I want to express some
concern about his handling of the concepts of sovereignty and legitimacy.

For Teson, the concepts are linked: sovereignty is “popular sovereignty,” a
kind of legitimacy. The version of his paper presented at the Newport sym-
posium defines “sovereignty” as “the monopoly of coercion” granted to a
government “by the citizens that reside in it, and recognized by international
law.” This is not a good definition of sovereignty, however, not only because it
loosely combines discrepant factual and normative criteria, but because it
attempts to settle by definition what is actually the substantive point at issue in
the debate over the moral limits on low-intensity conflict: whether sovereignty
(and its corollary, territorial integrity) constitutes a principled obstacle to low-
intensity operations.

The core meaning of the word “sovereignty” in the context of international
relations is “statehood,” a status in international society that is defined by
international law. A sovereign State is an independent State, but not necessarily
a democratic one. So understood, sovereignty is a presupposition of international
society, not a moral principle. “Legitimacy,” in contrast, pertains to the moral
claim a nation may have to being a State or, alternatively, to the claim a
government may have to govern the State. It is plain that, on these definitions,
“sovereignty” and “legitimacy” are different concepts, and that the definitions
are by no means eccentric ones. We can talk of States whose title to statehood
or whose government fails somebody’s test of moral legitimacy. If we tie
sovereignty to legitimacy, then the concept of sovereignty becomes superfluous.

International law exists because of the uncertainty and disagreement surround-
ing moral judgments of State conduct. And the concept of sovereignty continues
to have a place in international discourse because there is so much uncertainty
and disagreement surrounding judgments of legitimacy. By making legitimacy
the criterion of sovereignty, as Teson and many other moralists do, we substitute
an obscure and contested criterion fora clearer and more objective legal standard.
It is true that international law suffers from uncertainty and disagreement, but
the remedy for that is to strengthen the consensual basis of international legal
norms, not to abandon those norms for an even more uncertain philosophical
formula.

Professor Teson presents his views on the moral significance of legitimacy as
an alternative to what he calls “realism,” the view that the ethical standing of
military actions (including low-intensity operations) depends on their conse-
quences for the national interest and that such actions are justified when they
advance that interest. Teson’s own view is that military and low-intensity
operations are justified when they serve to promote democratic government and
human rights. I want to suggest that the difference between the realism he rejects
and the human rights theory he defends is not as big as he thinks it is.


Panel Discussion 235

Secretary Weinberger sought out crucial benchmarks in reaching a consensus on
taking the American people to war. When he did that, he drew on the just war
tradition, and wanted an informed debate to gain consensus, I think that’s what
Professor O’Brien really seeks.

PROF. COLL: Thank you Professor Eckardt.

Let me try to hit at some of the key points made by the presentations that do
not overlap significantly with points made earlier, and I will limit myselfso that
‘we can go on to the general discussion.

Bill O’Brien’s first thesis is that the war decision component of international
law is excessively rigid, and morally and politically inadequate to deal with the
difficult issues at hand. And that first proposition is one that I hope Michael
Reisman, Tom Farer and Terry Nardin will feel free to challenge rather
vigorously.

The second proposition Professor O’Brien offers us is that just war tradition
provides a useful and coherent moral analysis of security issues. In the process of
doing so, it also complements international law because, in his view, just war
tradition helps us to arrive at criteria of reasonableness through which we can
then work to define what kinds of intervention and what kinds of use of force
are reasonable, given the particular context that we may face. He recognizes, as
all of us do in this room, that each peculiar use of force, each peculiar intervention
is, as the adjective suggests, fraught with unique circumstances. And, therefore,
the problem becomes one of applying the standards to those circumstances, and
in that process, the word “reasonableness, ” or in the words of the New Haven
school, the question of “appropriate contexts and responses” becomes highly
relevant. So in his view, the just war tradition provides means by which we can
wrestle with standards of reasonableness.

Professor O'Brien is clearly pessimistic about the future of the war decision
dimensions of international law, although he is at least mildly hopeful about
international war conduct law. He also cites the problem of intervention as a
farther example of the limitations of international law in helping policymakers
to determine when is it appropriate to use force and how. He’s pessimistic about
the prospects for a new world order. The security mandate against Iraq was a
unique phenomenon, he argues, so the prospects for collective security are really
no better today than they were three years ago, and he makes that case rather
strongly.

Taking his discussion very specifically to the area of low-intensity conflict,
Professor O’Brien raises several caveats that I think are useful for us to ponder.
First of all, he points out that in any low-intensity conflict, definitions of
competent authority will always be highly problematic because, as he said, we
don’t wage low-intensity conflicts in countries like Denmark. We only need to
intervene in situations where legitimacy itself is at stake and is therefore


Moore 29

intentions to respond to aggression, the strength of the international legal system,
and the extent of economic interdependence.

‘Where an aggressor is absent, as in United States~Canadian and Swiss-French
relations, there is no risk of major war, even in the absence of deterrence. Where
deterrence is present at effective levels, as it was in the North Atlantic Treaty
Organization (NATO) against Soviet power, war can be avoided even if there
may be aggressive intent. Importantly, we should also note that the overwhelm-
ing majority of aggressive regimes in this century have been totalitarian, or at
least non-democratic, and that they tend to exhibit what I have elsewhere called
“the radical regime syndrome” of a one-party political system with a repressive
internal security system. Indeed, one of the most interesting connections in this
respect, is that these regimes are not only aggressors in initiating major wars, but
they are also engaged in slaughtering their own people. One current researcher
believes that these regimes may have killed about four times the total number of
people as have been killed in all of the major wars of the twentieth century
combined.” Hitler’s Third Reich, Stalin’s Soviet Union, Ho Chi Minh’s Viet-
nam, and Pol Pot’s Kampuchea are examples. In contrast, democratic nations
almost never attack other democratic nations or commit democide against their
own people.

If this model of a synergy between an aggressive regime (typically a radical
regime that is also engaged in democide or other massive human rights violations
against its own people) and a system-wide deterrence failure is the principal form
of major international conflict in our time, then the policies most used in seriously
working for peace are quite different than those which flow from the “conven-
tional” legal, arms control, and peace studies models. The most useful policies
include overall political engagement strategies (such as the Commission on
Security and Cooperation in Europe (CSCE) process) to seek to promote more
democratic regimes around the world as.a major component of the foreign policy
of democratic nations coupled with a variety of means to strengthen system-wide
deterrence against aggressive threats from radical regimes. It is of critical impor-
tance that we retain the military power to effectively deter such regimes (the
Korean War partly resulted from a deterrence collapse driven by a precipitate
United States demobilization after World War II); we must send clear deterrence
signals (here see World Wars I and II; the Korean War; the Indo-China conflict,
French and U.S. phases, particularly the U.S. post-Paris Accords phase; the
Falklands War; and, most recently and dramatically, the Gulf conflict); and we
must strengthen the overall international legal system to severely sanction
aggression and, just as importantly, to strongly support defense against aggression.

Itis largely the difference between the treatment of aggression and the treatment
of defense that measures the effectiveness of the legal system in deterring
aggression-not the degree to which the use of force is outlawed. If an aggressor
knows that a potential victim State or its allies will be condemned as much as the


Turner 71

effectively used today through devious methods of infiltration, intimidation and
subterfuge.

But this does not deceive anyone. No intelligent person in possession of the facts
can fail to recognize here the use of force, however devious the subterfuge may
be. We must recognize what intelligent and informed citizens already know.
Yugoslavia, Bulgaria and Albania, in supporting guerrillas in northern Greece, have
been using force against the territorial integrity and political independence of
Greece. They have in fact been committing acts of the very kind which the United
Nations was designed to prevent, and have violated the most important of the basic
principles upon which our Organization was founded.”

In 1966 Secretary of State Dean Rusk restated the consistent United States
view when he told the Foreign Relations Committee that “Article 51 of the
Charter was put in specifically to make it clear there was nothing else in the
Charter, nothing else in the Charter or anywhere, that impairs the inherent right
of individual or collective self-defense.”®

Complying With The Charter’s
Reporting Requirement

On several occasions in recent years the United States has used force in a
manner that was probably consistent with the self-defense provisions of the
Charter, but has been deemed a lawbreaker because it failed to comply with the
reporting provisions of Article 51.°° While one might have argued that the
widespread use of the Soviet veto had made the Security Council impotent
and the reporting requirement moot, the active involvement of the Security
Council in the recent Gulf conflict reinforces arguments that future defensive
uses of force ought to be promptly reported to the Council, accompanied by
a detailed report giving full justification for the U.S. action.

Specific Problem Areas:
Self-Defense of Nationals Abroad

International law has long recognized a right of States to use necessary and
proportional force to protect their nationals from threats on the high seas or on
foreign territory, and many scholars contend that this right is not eliminated by
the U.N. Charter. Thus, Professor Oppenheim writes: “The right of protection
over citizens abroad, which a State holds, may cause an intervention by right to
which the other party is legally bound to submit. And it matters not whether
protection of the life, security, honour, or property of a citizen abroad is
concerned."*”

In contrast, some scholars argue that the Charter requires States to forego the
use of military force to protect endangered citizens abroad, and instead requires
them to seek peaceful resolution of such disputes.”* The proposition is arguable,




Roundtable Discussion 307

Finally, I think we should seriously consider methods for exploring alternative
means of achieving our goals that don’t necessarily require unilateral action. I,
throughout my career, have supported the notion that unilateral action by
members of the international community can be justified when it meets inter-
national standards and I don’t recede from that for a moment. The international
community’s formal organs of decision are still quite weak and even when they
work, it is owing to extraordinary pressure brought on them by one or two major
actors. I am not excluding unilateral action, but I am fearful lest we invent an
ideological vehicle that makes it easier for us to do things without going through
very careful intellectual tasks that assure ourselves, and the world, that our actions
are in the best common interest.

Thank you.

PROF. COLL: Thank you, Michael.

That was both a very elegant and provocative challenge to us, and I do hope
that we can focus on the kinds of questions that Professor Reisman just raised;
they’re tremendously important.

Admiral Harlow.

RADM HARLOW: I am mindful of the admonition that Professor Reisman just
gave us; we are faced with an extraordinary opportunity, but also a very dangerous
arena in which policy may be abused. I would, nevertheless, hope that this
conference may serve as a useful basis for United States policy in this very sensitive
area.

Let me discuss what might be done in terms of implementing steps. In this
arena, perfect is the enemy of good enough. I have a sense that time is of the
essence, not only internationally, but domestically. Americans, in my judgment,
do have moral fiber. It’s not so firm that they can’t be led into abusive and
corrosive practices, but on the other hand, with wise and prudent leadership, I
think we'll find there’s a great reservoir of American will to do the prudent and
the right thing. So, the key is wise leadership, and with it, we will not lack the
will or moral fiber to take on the arduous and complicated task before us.

I would suggest that there is a need for a Presidential statement. I think it tends
to be corrosive for Americans not to really know what direction we are going
in the long term. It’s also damaging internationally. Just think for a moment of
the fear that runs through the hearts of our foreign friends and adversaries alike
at the prospect of irresponsible use of American power in a unipolar world. I
think there’s a crying need for a Presidential articulation of national purpose in
this ambiguous area of international affairs. This should include the questions of
special operations, anti-terrorism, regional strife and drug trafficking. And let me
say as an aside, I wrestled with the issue years ago of whether we could translate
anti-terrorist acts from the arena of law enforcement into the arena of national




248 Legal & Moral Constraints on Low-Intensity Conflict

small difference. I don’t think that we always display the kind of reformist zeal
that Father Winters described, but it’s a very important warning, because there
is a strong reformist zeal in the American temperament to begin with. So those
of us involved in the low-intensity conflict policy business need to be aware of
this temptation.

Beyond that, however, can we agree that there are certain core values which
need to be included in the calculus for deciding when a resort to force may be
justified? Can we agree on what these core values are? Do they go beyond respect
for human dignity and protection of the person? Shouldn't they include treating
human beings as ends in themselves and with equality, as Michael Reisman
argued? This is definitely part of the core. How much farther beyond this are we
prepared to go?

Father Winters maintained that sovereignty is a core human right. How far
are we prepared to argue with that position, and how do we address it in the
context of some situations around the world in which sovereignty is easily
manipulated by elites that clearly do not represent the people over which they
claim power? Are we perverting the word “sovereignty?” I think Jim Turner
Johnson would suggest that in those cases we are perverting the meaning of
sovereignty and we are perverting the meaning of right authority when we allow
sovereignty to be used as a shield behind which regimes that really don’t represent
their peoples can shelter. This, of course, would have to be in the context that
we would call egregious. Not necessarily in mild dictatorships where there might
be reasonable differences, but in a case which everyone in this room would agree
that a particular regime was not representative.

Let me close with one question that we have not wrestled with yet, and I
think is important, and that is the following: does low-intensity conflict pose
peculiar challenges for the jus in bello? That is, for the laws of warfare? Ifso, what
are these? We have spent a great deal of effort here in discussing the jus ad bellum,
but that is only part of the definition of a just war. Ultimately a war is not
justifiable if the means involved in waging it become sufficiently dirty or
disproportionate, or indiscriminate, or sufficiently evil in themselves.

I do believe that low-intensity conflict poses some peculiar challenges for the
jus in bello and I have not thought through the problem with any degree of care
or rigor, but I would like to invite you all to join me in exploring that question.
Can you fight a clean low-intensity conflict? How far can you do that? Are there
things about low-intensity conflicts that make it more difficult to fight them
relatively more cleanly than other kinds of conflict? That is an important policy
question that we need to deal with.

Thank you for your great patience, for your enthusiasm. I want to thank all
of the members of our Just War Panel: Professor Johnson, Father Winters,
Professor O’Brien and Professor Eckhardt.

Thank you very much, once again.


134 Legal & Moral Constraints on Low-Intensity Conflict

traditional interpretation of sovereignty, but if that is the case, one wonders how
it is possible to respond to a low-intensity conflict.

Professor Nardin concludes with Plato’s extraordinarily powerful image of the
prisoners in the cave, whose understanding is limited to the world of surface
appearances presented by the ordinary round of mortal existence. He suggests
that philosophers can see beyond what we lawyers who are the prisoners in the
cave can see. In the Republic, after the description of the prisoners in the cave,
Socrates’ interlocutor says, “you have given us a strange image,” to which the
philosopher responds, “even ourselves, even ourselves.” These limitations may
apply to philosophers as well. I think the more general difficulty here is that we
all make decisions, those of us who undertake the responsibility for doing it, on
imperfect knowledge. We do the best we can, but that knowledge is quite
imperfect.

The alternative that’s proposed here is not the systematic approach Professor
Teson suggests, but the shadow wisdom of international law and diplomacy. One
question you may wish to address in your discussion is whether that provides
sufficient guidance for us to bypass some of the larger questions that Professor
Teson has raised.

With that brief summary, I would like to throw the floor open. We will have
an open discussion. Please feel free to return to issues raised in the previous panel
as well. As in the previous panel, we will give the speakers a chance to respond.

PROF. ROBERTSON: Professor Robertson, Naval War College.

Td like to address Professor Teson about his quest for legitimacy, and bring it
down to the operational level. In Peru a duly elected president has now seized
power, arbitrarily imprisoned his political opponents and the media reports that
he has the support of something like 70 to 80 percent of the population. How
do you address legitimacy in that framework?

PROF. TESON: I’m glad that you raised that issue. I am also concerned about
what’s going on in Peru. It’s a very important issue because legitimacy, as I define
it, and as I think is defined generally in moral and political theory, requires more
than the sanction of the ballot box. A democratically elected government is one
requirement, but not the main one. The main requirement is respect for the
human rights of the citizens. Therefore, we can have two variations on this theme
of compromised legitimacy. An initially undemocratic government may respect
the rights of its citizens, as would a benevolent monarchy. But the paradox here
is that if the government respects the rights of its citizens, it will also respect the
right to vote it out of office. Therefore, the right to elect one’s own government
is contingent on the respect for human rights.

The converse situation, what I think is happening in Peru today, is that ofan
initially democratic government, which suspends or cancels individual liberties


Lord 269

protracted conflicts such as El Salvador, due to an overemphasis on sophisticated
technical collection assets as opposed to the human intelligence networks that
are critical to the successful conduct of revolutionary war. Third, the process of
planning for security assistance to friendly governments suffers not only from.
congressional micromanagement, but from persistent disconnects between diplo-
matic and military requirements and an excess of bureaucratization.

Because low-intensity conflict (especially in the form of protracted revolu-
tionary war) is neither peace nor war in the ordinary sense of those terms, no
one is clearly in charge. Absent strong direction from the national level, there
are essentially two ways of coping with such situations. The first is to put the
military in charge but force it to perform many nonmilitary or non-combat
functions (the French in Algeria). The second is to create ad hoc, hybrid
civil-military structures under proconsular civilian leadership (the British in
Malaya). In spite of some experimentation with the second model (the Civil
Operations and Revolutionary Development Support-CORDS-program) in
Vietnam, the United States has tended toward the first alternative in practice,
although as a matter of policy it has generally understated the military role and
overstated the contributions of other agencies to the conduct of low-intensity
operations. The first model has the advantage of simplicity and of maintaining a
military discipline and spirit in an environment that too easily tolerates bureau-
cratic business as usual. It has the disadvantage that it asks more from soldiers than
they are customarily able to perform, and threatens to distract them from their
more properly military missions. Which model is chosen has much to do with
the prevailing military culture of a society.

The United States military as it exists today is very largely a product of its
decades-long confrontation with the Soviet Union. It is probably fair to say that
the Soviet threat as seen by the U.S. military establishment was fundamentally a
military threat, one posed either directly to the United States by Soviet strategic
nuclear forces, or to America’s allies in Europe and Asia by Soviet conventional
forces. (Consider by contrast the French military, which in the 1950’s came to
see “revolutionary war” in the less developed world as the central threat posed
by Soviet Communism and revised its military doctrine to reflect this perception.)
Accordingly, the basic mission of U.S. military forces has been seen as the
deterrence of, or defense against, the Soviet threat so understood; other missions,
including the containment of Soviet imperial expansion, have been considered
ofa strictly secondary order. This may well have been an entirely proper ordering
of national priorities, but it has clearly created and reinforced a military culture
oriented to major weapons systems, high technology, and large (not to say
apocalyptic) wars, to the neglect of the non-military dimensions of international
conflict,

If this analysis is correct, it appears to follow that a dominant role for the
American military in small wars is to be neither desired nor expected. Several


26 Legal & Moral Constraints on Low-Intensity Conflict

a. The extent to which force may lawfully be used to respond to sustained and
serious low-intensity aggression, such as continuing State sponsored terrorism,
which provides external assistance to insurgents or fuels other “secret warfare.”
Examples would include the Vietnam War in early stages, the secret war in Central
America, ongoing Libyan support for terrorism, the bombing of the United States
Embassy and the Marine Barracks in Lebanon and the taking of American hostages
(and torture death of some) in Lebanon.

b. The extent to which force may lawfully be used to respond to systematic and
major human rights violations, including democide and genocide, whether or not
associated with crimes against peace. Examples include the slaughter of civilians
in Bangladesh prior to the Indian intervention, Pol Pot’s largely ignored democide
in Cambodia and, more recently, Saddam Hussein’s slaughter of the Kurds,

c. The extent to which force may lawfully be used, ifat all, to respond to sustained
and intense narcotics trafficking. If, of course, a widely recognized government
requests such assistance then there is likely to be little issue under international law,
provided such assistance meets the requirements of human rights and other relevant
constraints under the law of war. If there is no consent, traditional international
Jaw would, in most such settings, deny any right of intervention through direct
use of force. The ability of the drug trade to overwhelm and corrupt governments
of small nations, and the new alliance of narcotics traffickers with insurgents, may
require substantial reevaluation of traditional constraints in this category.

This paper will deal primarily with issues in the first category, although it
may have some relevance for discussion of categories two and three. There
js, for the most part, a rich literature concerning the principles and limits of
humanitarian intervention dealing with category b; although, as we learn
more about the prevalence of democide, this is a category that may need
rethinking and a liberalization of criteria for response in settings of genuine
democide or genocide. Moreover, we certainly could benefit from more
effective international machinery to deal effectively with these crimes.
Category c is more difficult for generalization and may be more context
dependent than even Categories a and b. As this paper illustrates, however, I
believe that there is a major conceptual problem in the present approach of
many, including some international lawyers, to the Category a problem and,
accordingly, this paper focuses on that issue.

While I expect that the theme of this paper will be welcomed by many, it
may be unwelcome to others. The task of a scholar, however, is not to please
the audience but rather to pursue the truth. The truth we are pursuing here is a
truth about how to reduce aggression, whether overt or covert. That is, it is a
truth about reducing a major category of war and violence. The importance of
truth concerning this critical issue places a special burden on all of us, scholars
and policymakers alike, not to simply pursue gentle debate, but rather, vigorous


Index

moral limits encompassing, 159
Sun Tzu’s “The Art of War,” 6-8
Support: See Public support
Supremacy of international law provision under Article 14 of UN Charter, 57
Syria
‘Assad as expert in covert low-intensity techniques, 279-280
counterterrorism strategies, 197-198
state-sponsored terrorism as act of war, 161

T

‘Teaching institutions, integrating moral and political ideas in, 260, 262, 298-299
‘Technology, military culture oriented to, 269
Terrorism and counterterrorism
‘See also specific matters
criminal justice systems
exemption of terrorists from, 35-36
terrorism 2s within ambit of, 276, 308
executive limited authority of US President regarding, 280

historical authority for military force, 158-159
innocent host state to terrorist activities, 72-74, 231
Israeli handling of See Israel

just war doctrine

See also specific matters, this topic
counterterror operations, application to, 196-199, 231-232, 236
low-intensity conflict, defined, 160-161
military force, just cause for use of, 161-167
nationals abroad, defense of: See Citizens and citizenship
nature of, xv
preemptive strikes: See Anticipatory or preemptive self-defense
state-sponsored terrorism
act of war, state-sponsored terrorism as, 161
ethical considerations, 177-178
history of US view of, 299-300
Libyan involvement, 283
‘Theological influence on just war tradition, 147-151
‘Thirty Years War, 10
‘Thomas Aquinas, 150, 171-172, 174-176, 209
Thucydides, classical view of statesmanship, 339-342
Tiananmen Square massacre: See China
‘Tibet, covert activities in, 326
Tradition
“intimations of tradition,” communitarian realism, 93-96
just war: See Just war theory or tradition
Treaties
See also specific matters
interpretation of, 138
Traq’s refusal to honor cease fire treaty, effect of, 178, 219
mitigating damage from breaking of, 49-50
self-imposed limits placed on sovereignty, 57-58
Treverton, Gregory, view of covert activities, 333
‘Truman, Harry (President of US)
cold war giving rise to need for covert activities, 336-338
covert activities conducted within realist context, 336
Turner, Admiral Stansfield, view of covert activities, 332-333
TWA 847 hijacking (1985), exemption of terrorists from criminal justice systems, 35~36
‘Tyrannical leaders: See Dictators or tyrannical leaders

385


PART THREE

MORAL CONSTRAINTS ON LOW-INTENSITY CONFLICT:
MORALITY AND THE JUST WAR TRADITION


Turner 57

through its appropriate organs, to protect the peace of the community and to
remove the causes of dissent that lead to acts of violence. An individual State may,
indeed, defy the law; it may refuse to cooperate in putting the procedures of pacific
settlement into effect; but it cannot offer in justification of its conduct any legal
claim of “sovereign right.”*°

Indeed, Professor Fenwick notes that “Many jurists have urged that the term
‘sovereignty’ should be discarded, as being out of harmony with the actual facts
of international intercourse.”*!

The International Law Commission devoted part of its first session in 1949 to
drafting, at the request of the U.N. General Assembly, a Draft Declaration on
Rights and Duties of States. Approved by a vote of 11 to 2, it included these

articles:

Article 2

Every State has the right to exercise jurisdiction over its territory and over all
persons and things therein, subject to the immunities recognized by international
law.

Article 4

Every State has the duty to refrain from fomenting civil strife in the territory of
another State, and to prevent the organization within its territory of activities
calculated to foment such civil strife.

Article 7

Every State has the duty to ensure that conditions prevailing in its territory do not
menace international peace and order.

Article 12

Every State has the right of individual or collective self-defense against armed
attack,

Article 14

Every State has the duty to conduct its relations with other States in accordance
with international law and with the principle that the sovereignty of each State is
subject to the supremacy of international law.”

These restrictions on “independence” stem both from customary international
law and from treaty, and Oppenheim writes “[t]here is hardly a State in existence
which is not in one point or another restricted in its territorial supremacy by


66 Legal & Moral Constraints on Low-Intensity Conflict

of a situation through the amount of force employed. In frontier incidents these
elements are usually absent. Where a State aids and abets with military force internal
disorders or revolution in another State, the question whether an armed attack has
thereby been committed should be tested in the light of criteria that are identical
with those enumerated at the beginning of the preceding paragraph. . . .”

One might argue that the “necessity” and “proportionality” requirements of
self-defense law would take care of the problem of responding to a small border
incident by causing World War III. Before force may be used, non-forcible
means of dispute resolution must be exhausted (or be clearly unable to resolve
the problem), and even then no more force may be used than is necessary to
achieve the permissible objective. While Sorenson’s “criteria” are not helpful in
deciding how to respond to armed intervention, his second paragraph (above)
presents a reasonably good characterization of the scope of the law of self-defense
both before and subsequent to the Charter if one accepts the argument that
Article 2(4) was not intended to alter this inherent right of States.

By this reasoning, contemporary international law does permit a State to send
its agents into the territory of another State and use necessary and proportional
force against it in response to such things as an ongoing terrorist campaign
involving armed individuals being sent from the second State to the first State
and engaging in illegal acts of force (bombings, assassinations, hijackings, etc.).
True, a State may not use a single terrorist bombing as an excuse to send its entire
army into a neighboring State and conquer its territory. The proportionality
doctrine protects against such an excessive response. But so long as the response
is proportional to that which is necessary to bring an end to future acts of force
against the first State, international law does not preclude it.

Articles 2(4) and 51 of the Charter should be analyzed as companion rules in the
regulation of armed force in the modern world. However, the common practice of
seeking to define the scope of self-defense primarily by focusing on the term “armed
attack” seems to be misplaced. Properly understood, Article 2(4) provides the basic
prohibition in the Charter against uses of force by individual States, and Article 51
was clearly added later to clarify that States would not be precluded by the Charter
(that is, by Article 2(4) of the Charter) from defending themselves and coming to
each other’s aid if the Security Council were to prove unable to respond effectively
to armed aggression. True, the words “armed attack” were chosen in English to
make this point; but the great effort made to avoid such terms as “war” or even
“ageression” in Article 2(4)—on the theory that such terms might be construed
narrowly—should make it clear that this “example” was given simply because the
drafters were writing in the shadow of World War II and envisioned future
international aggression to follow a similar pattern.

Professor Louis Henkin, of Columbia Law School, favors a narrow reading
of Article 51 and writes: “The fair reading of Article 51 permits unilateral use of
force only in a very narrow and clear circumstance, in self-defense if an armed


INTERNATIONAL LAW STUDIES
1995
LEGAL AND MORAL CONSTRAINTS ON
LOW-INTENSITY CONFLICT

Edited by
Alberto R. Coll, James S. Ord and Stephen A. Rose

Volume 67

NAVAL WAR COLLEGE
NEWPORT, RHODE ISLAND

a


92 Legal & Moral Constraints on Low-Intensity Conflict

appealing because it relies on democratic representation to explain the inter-
national “state of nature.” The world consists of independent nations with
governments; these governments are agents that represent their citizens; and each
of them attempts, in a competitive world, to serve the interest of its principals,
The prudentially correct international action for any State, or group of States,
can be determined by an analysis of the interests involved and the options open
to the agents, which could be based on models of collective rational choice or
game theory. There are no international principles of morality from this
philosophical perspective.

From the realist standpoint, for example, the ill-fated, U.S.-supported Bay of
Pigs invasion was mistaken, not because it violated the principle of sovereignty,
but because the Kennedy administration underestimated the probability of failure
and its consequences for the United States. Had the invasion succeeded, there
would have been no objections whatsoever against it. Thus, this version of
normative realism, based on the agency relationship of government to subjects,
reaches the same conclusion as the “state of nature” version of realism: inter-
national acts may only be evaluated from the standpoint of national interest.

(b) Extreme and Moderate Realism

Under either version of normative realism, international acts, and hence low-in-
tensity operations, are justified if they serve the national interest. But a farther
distinction must be made between extreme realism and moderate realism. According,
to extreme realism, low-intensity operations are justified whenever they advance
the national interest. Extreme realists thus regard the net maximization ofthe national
interest as a sufficient reason for conducting low-intensity operations.

For example, if the U.S. government were to determine that abducting a
suspected drug trafficker from Mexico serves the national interest and can be
accomplished without affecting trade or diplomatic relations, then the operation
would be justified. '® Presumably, this would be so even if some innocent people
were killed, or important property damage caused in the course of the abduction,
because the U.S. Government does not owe any duty to Mexicans, or to any
foreigners. The touchstone of the theory is the national interest. The only
admissible reason for moderating our behavior, then, is the perception that
otherwise our national interest is likely to be harmed, after computing the benefits
reaped by the kidnapping.

Moderate realism, on the other hand, contends that maximizing the national
interest is a necessary but not a sufficient reason to justify low-intensity opera-
tions. These must be justified by appealing to the national interest, but must also
comply with the requirements of necessity and proportionality that apply to the
use of force generally.'? In our previous example, perhaps the kidnapping could
be morally justified if (a) all other means to persuade the Mexican Government
to render the suspect have failed; and (b) no Mexican lives were lost.


166 Lega! & Moral Constraints on Low-Intensity Conflict

‘was strong consensus that Saddam Hussein had forfeited any legitimate claim to
continue to rule Iraq. It was also widely agreed that the Kurds and the Shiites
were right to revolt against him given their long history of oppression and the
ferocious campaign his forces were waging against them. Against these facts were
prudential judgments about whether these two groups, or either of them, could
succeed in toppling the central government, whether they could unite the
country or would only end by fragmenting it, and whether they would establish
aless problematic new government or only a new one that would be problematic
in different ways. These prudential concerns are of course also moral concerns,
reflected in the just war criteria of reasonable hope of success, last resort, and the
goal of peace. When they are the source of sericus doubt, they have the effect
of setting restraints on what might be allowed according to the principles of just
cause and right intention,

Each case, then, must be judged on its own merits. Destabilization by means
covert or overt is prima facie attractive by comparison with resort to military
force; yet final judgment depends on weighing the means employed and their
consequences.

4. The Permissibility and Limits of Deception. Above I have spoken
of “impermissible deception” as a factor in shaping the concrete content of just
war tradition, What is permissible and what is not? The answer is far from clear
in the historical sources, where the two concepts are used with no manifest
agreement as to their content. The lack of clarity continues down to the present,
yet there has been gradual development in some areas, Broadly, the identifying
mark of impermissible deception is the intentional blurring of conditions imposing
moral restraint on the use of force. This convention may be illustrated by a
historical example. Through much of the Middle Ages non-knights in arms were
slaughtered if captured. While this was in part an effort to restrict the use of arms
to the knightly class and thus secure its power, it also reflected a fear of
peaceable-looking people who might turn ona soldier when his guard was down.
Non-knights were, by the end of the Middle Ages, accepted into armies by being
organized under responsible commands, but the fear of the deceptive peasant
developed into a general cultural rejection of partisans that continued at least
until the 1860s. Then Francis Lieber, charged to give legal guidance to the United
States Army in the Civil War" set out principles that in time became positive
international law. His work is perpetuated in the Hague Convention, which
requires that partisans serve under responsible commanders, wear identifying
clothing or insignia, carry their arms openly, and fight according to the accepted
laws of war.'® Yet the old fear of the deceptive peasant has hardly been laid to
rest. Michael Walzer, in Just and Unjust Wars, recalls a case from World War II
that could have occurred, given different weapons, at any prior time in history.!”
The Vietnam war brought the problem of the deceptive peasant to center stage


Chapter V

Panel Discussion: International Law and
State Sovereignty

W. Michael Reisman, Chair

PROF. REISMAN: It is quite clear, particularly in light of events of the
last few years, that whatever you may choose to call the new international political
order, the phenomenon of persistent use of low-intensity violence has become
an influential agent in shaping it. It’s quite probable that, owing to a number of
developments, this particular use of coercion could become much more ag-
gravated and widespread.

For the great democracies in which, quite properly, political legitimacy comes
from the people, the phenomenon of low-intensity conflict is particularly acute.
There is no question that a free people has the common sense to be concerned
about its security, and will readily mobilize itself in circumstances in which it
perceives a great threat. It is commonly the nature of low-intensity conflict not
to pass that particular threshold of public awareness, which means that those who
are charged with maintenance of security in great democracies may perceive a
reality that is quite different from that which is popularly perceived. Low-inten-
sity conflict is frequently conducted in covert fashion and very often the response
to it has to be conducted in a covert fashion. The great democracies of the planet
are uncomfortable with the notion of covert action. And there is no question
that whatever promises of efficiency covert action may have, they must be
weighed against their effects on democracy itself, and certain other pathological
features.

As Prof. Coll said, the phenomenon you are asked to consider has moral,
ethical, technical, and legal implications. Those implications arise both at home
in the domestic political system, and at the international level.

In the last seven years, the International Court of Justice has had two
opportunities to address this issue. It is generally held that the type of phenom-
enon which we are considering, low-intensity conflict, does not need to be
forcibly addressed and at least, in the view of the Court, does not warrant the
unilateral response that is generally characteristic of self-defense, which is
authorized in the United Nations Charter.

At the moment, the same issue is in front of the Court again in a different
political context, in the Libya v. United States and Libya v. United Kingdom cases.


Panel Discussion 143

far more defensible and coherent than some of the comments made to this point
would suggest. Be that as it may, there is the fact that the Court is composed of
jurists from a variety of countries, many of them western or allies of the West.
Most of these gentlemen are distinguished and would support the point made
earlier, I think, that those American lawyers who think that the norms are unclear
represent a distinct minority. In that sense, the Court’s view in the case of Libya
highlighted this discrepancy with which we must struggle.

PROF. COLL: In response to Professor Farer’s point, I think that we need to
address also the impact of responsibilities that a great power has, and you,
Professor Reisman, alluded to that earlier.

It may be that the United States, because of its global position, faces certain
policy choices and obligations which put it into a situation in which the rules,
as it perceives them, are not quite clear. It may also be that the rules in a sense
do not give the United States enough room for the kind of flexibility that is
required, not only strategically but even from the larger viewpoint of political
and even moral wisdom. I think that’s a point of which we must not lose sight.
In the same way that certain small States can behave with a greater disregard for
international law than even we do, there are other States without the same degree
of international obligation that we have, that will press for what I would call
highly restricted interpretations of international law and questions relating to the
use of force.

RADM LEMOYNE: For Professor Teson.

You mentioned Saddam Hussein a couple of times in the context of assassina~
tion. From an operational standpoint, from the time that the Iraqis moved south
to the time that the cease-fire was declared, was there any difficulty in systemati-
cally targeting and hunting down Saddam Hussein as the operational commander
of Iraqi armed forces? If we could have caught him quickly, I think that may

have ended the war earlier.

PROF. TESON: That is a very good question. My answer is there wouldn’t
have been any difficulty in doing that, which is why I find the failure of the
coalition forces to do it inexplicable. I don’t know what the facts are. I’m told
that the Saudis advised President Bush not to go after Saddam Hussein, against
the judgment of the field commanders. I don’t know what the facts were, but
it’s very interesting because it brings out part of what I say about sovereignty. If
you're in open war, sovereignty becomes subject to different considerations. So,
as you very well put it, I think it would have been justified to go after him as the
commander of those forces against which we were fighting. It was easier then
than now, when sovereignty considerations, at least in the traditional sense, have
reemerged after the cease-fire.




Winters 175

These joint (political and theological) efforts to limit the legal authority of the
emperor to “his own region” (Germany) bore fruit finally in the following
century when the Emperor of the time had the poor judgement to summon the
King of Naples to his court on the grounds of treason (laesae majestatis). The King,
alongside the King of France, appealed to the Pope to rule on the canonical
prerogatives of the Holy Roman Emperor. The Pope ruled that the Emperor
enjoyed no legal authority in Naples or France. The claim of sovereignty for the
several nations of Europe was thus ratified in canon law and entered into the
political consciousness of Europeans. The meaning of sovereignty was precisely,
then, the defiance of the universal pretensions of a particular realm, i.e. the Holy
Roman Empire. The consequence of this theological and canonical revolution
was the vindication of an international system of States.

It appears, then, that the 13th and 14th century notion of justice (and of its
corollary the just war) was shaped precisely to condemn interventionism on
philosophical and theological grounds. This period cannot then be included in
any catalogue of ages when concepts of justice encouraged interventionism.

Justice and the School of Salamanca:
Francisco de Vitoria

It is perhaps coincidental that the leading architects of the natural law
conception of justice (and its corollary, the just war theory) thought and taught
in moments of great cultural crisis. Aquinas happened to be lecturing on theology
in Paris at the dawn of the post-imperial age in Europe. In response to the moral
challenge arising across the continent to choose between the traditional (and
canonical) weight of imperial authority and the emergence of political pluralism
within Christendom, Thomas had opted for the supremacy of regal sovereignty
(immunity from the customary imperial claim of suzerainty in France). Thus, the
new moral and political principle of national sovereignty constituted a declaration
of independence for France (and the other kingdoms) from the constraints of
empire. This cardinal development in the natural law tradition shaped all
subsequent interpretations of justice (and just war thinking).

‘Two centuries later, another cultural crisis gripped Christendom, namely, the
opportunity to navigate the seas and explore “the Indies.”

Spain, sailing to the New World, sent with its conquistadores their Dominican
chaplains, who quickly discovered the moral ambiguity of the unexpected cultural
encounter with alien civilizations. The missionaries included Fra Bartolomeo de las
Casas, an early colonial landlord himself who became a crusader for Indian rights.'*
By his correspondence with Spain, he engaged the Court, and equally decisively,
theologians of Valladolid and Salamanca in the challenge of justifying, or denounc-
ing, the imposition of Spanish rule in America. Among his Dominican colleagues
unsettled by the lurid accounts of the tragic circumstances of the newly conquered


O'Brien 195

that, “It would be improper practice to secure advantage of the enemy by
deliberate lying or misleading conduct which involves a breach of faith, or when
there is a moral obligation to speak the truth.”*+ Examples given are “to feign
surrender so as to secure an advantage over the opposing belligerent thereby”
and “to broadcast to the enemy that an armistice had been agreed upon when
such is not the case,” is a “treacherous” act.>

The discussion in FM 27-10 condones all manner of spying and subversion
of enemy forces.*® To the two examples of “perfidy” or “treachery” could be
added such possibilities in low-intensity conflict as luring enemies to a parley
with assurance of security and then capturing or killing them, or, more broadly,
promising amnesty to those who have surrendered their arms and then imprison-
ing or killing them. I would consider FM 27-10’s treatment of deception in
war-conduct law to be acceptable to just war doctrine, having noted that the
subject has apparently not elicited treatment in the major just war texts.

Assassination. Assassination is a subject which is frequently discussed in con-
nection with low-intensity conflict, but there seems to be little consensus about
it. The subject is to a considerable extent treated as moot because of the U.S.
executive order prohibiting assassination as an instrument of policy. Nevertheless,
debate over the moral permissibility of assassination continues. In classic just war
doctrine and Scholastic political thought the subject is mainly addressed with
respect to tyrannicide. Much of the treatment of this subject was conditioned by
the emotions of the religious wars, international and civil. More modern
discussions of tyrannicide tend to be cautious at best and generally negative.
Indeed, the whole legacy of Catholic thought with regard to revolution, clearly
reacting to the French and Bolshevik revolutions, has been to discourage violent
revolution and seek remedies through legal and non-violent means. Heinrich
Rommen does not even discuss the possibility of tyrannicide and Johannes
Messner rules out almost any form except in cases where persons demonstrating
legitimate authority might dispose of a tyrant who held power illegitimately.>”
Admittedly, this meagre literature gives little basis for discussion of the moral
permissibility of assassination, including assassination of political, military and/or
revolutionary figures whose status might not be equivalent to that of a ruler
deemed by some to be tyrannical. Nor does the literature take up the case of a
potential target for assassination based not so much on the claim that he is a tyrant,
but on the recognition that he is a key figure in the enemy camp. This would,
for example, be the case in assassination of revolutionary and/or terrorist leaders
or drug lords. Such a case occurred when Israeli agents assassinated Khalil El
Wazir (nom de guerre Abu Jihad) in his home on April 16, 1988. Abu Jihad was a
top PLO leader who had planned and organized some of the major PLO terrorist
attacks against Israel. He was in every sense a military commander, a combatant
in the PLO’s war with Israel, which was a war fought largely on the PLO side


352 Legal & Moral Constraints on Low-Intensity Conflict

82. Tovar, Covert Acion, in INTELLIGENCE REQUIREMENTS FOR THE 1980S: ELEMENTS OF
INTELLIGENCE 80 (Godson ed. 1983).


Teson 93

(¢) Utilitarian and Communitarian Realism

One preliminary question for the evaluation of realism is what counts as
national interest. Realists have two very different answers to this question.

It seems intuitively obvious that there are goals that, if accomplished, would
benefit most people in a country. For example, if U.S. industry becomes more
competitive, given the American capitalist economic system, most American
citizens will benefit. There would be more wealth and jobs in the country.
Therefore, diplomatic actions by the U.S. government aimed at this end serve
the national interest.

This approach to national interest simply defines it as the aggregate maximization
of preferences of the citizens of the State. National interest is explicated by appealing
to well-tested empirical laws and theories, and refers to actual preferences of people.
It follows that the validity of claims to national interest may be tested by empirical
calculations. Some claims are simply empirically false, as for example appeals to the
national interest when the only interest being served is that of a minority. There is
nothing problematic with this definition of the national interest, because it does not
appeal to something above and beyond the actual interest of persons. The national
interest is real, concrete, and measurable. This is the utilitarian conception of national
interest. In its normative form, this thesis holds that the satisfaction of the net
aggregate interests of citizens of the State justifies international acts.

Realists, however, sometimes speak as if there were an interest that is national
in the sense of not being reducible to the aggregate actual interests of the citizens
of the State. This national interest presumably endures regardless of the change
of governments and regardless of the nature of internal sociopolitical arrange-
ments. This is the communitarian definition of the national interest”° and may
be contrasted with utilitarian realism. Claims that an international act (such as an
invasion) will enhance national glory preclude the measurement of national
interest by empirical means. They rely on a conception of interest that is national
in the Hegelian sense; that is, held by the nation as a moral being that endures
over time. Communitarians thus reject the utilitarian idea that “counting heads”
is the way to determine national interest.

Of course, if the majority of the population feels strongly about national glory
or ethnic pride, then their preferences would be maximized by an international
act in pursuit of those goals. In this case, utilitarian and communitarian realism
will agree on the desirability of a particular outcome. Yet the communitarian
approach to national interest is not sensitive to empirical falsification. Com-
munitarians claim that their values are to be found in the “intimations of the
tradition” of a given society.” If national interest is defined by reference to such
notions, it will often be the case that the actual aggregate interests of living citizens
do not coincide with what is dictated by the “intimations of the tradition.”
Although appeals to national glory may be found after analysis to reflect the
preferences of citizens of a State, their failure to do so would not invalidate their


14 Legal & Moral Constraints on Low-Intensity Conflict

tional military options with which to raise the costs to the enemy of resorting to
covert war. And finally, democracies can, and occasionally have been able to,
‘wage unconventional warfare effectively.

No serious study of unconventional warfare can avoid the morally and
politically problematical question of whether democracies should “answer fire
with fire”, that is, engage in selective unconventional warfare of their own as a
means of compelling an adversary to desist from its own unconventional warfare
efforts. If economic and diplomatic sanctions have proven ineffective, if the
mechanisms of international law and organization are unavailable or have failed,
if direct war and conventional military options are unadvisable because of their
high costs, unconventional warfare may be the appropriate instrument with
which a democratic society should defend itself and its allies against an adversary’s
strategies of violent peace. A resort to unconventional warfare under such
circumstances serves the joint purposes of defense against the existing attack and
deterrence to future ones. Alexander Hamilton laid the philosophical foundations
for the argument that democracies should be prepared to resort to defensive
unconventional warfare when he argued in general terms that, as a matter of
common sense and practical survival, the United States could not guide its
international behavior by the same practices and institutions that govern its
domestic life.!®

The rejoinder to the above argument, as articulated by critics from Thomas
Jefferson down to our own day, takes several forms. First, there is the claim that
democracies should not stoop to the immorality that unavoidably accompanies
unconventional warfare. This particular claim is rooted in the Jeffersonian view
that, as Paul Seabury put it, “both the means and ends of American foreign
policy. . . should be always judged against the highest standards of American civic
values. . . the moral character of our civilization should be reflected both in the
ways in which we deal with other nations, and in the ultimate purposes to which.
‘we aspire in these dealings. . .”!? A second kind of claim asserts that in resorting
to unconventional warfare democracies corrupt themselves. Supposedly, the
practice of Machiavellianism in one’s dealings abroad produces Machiavellianism
at home; deception, secrecy and treachery in foreign policy lead to the cultivation
and spread of similar attitudes and values within the domestic political process.?°
Third, there is the more pragmatically oriented claim that, given their peculiar
traditions and institutions, democracies are ill equipped to carry out unconven-

‘tional warfare, and that their attempt to do so often winds up in failure, in moral
and political embarrassment both internationally and domestically, and in loss of
the “moral high ground” with all its attendant intangible benefits.”4

These arguments against the employment of unconventional warfare by
democracies need to be taken seriously, but they do not make a foolproof case.
At most, they remind us of the pitfalls involved in “fighting fire with fire.”
Intellectually as well as morally, the most relevant question is not whether


O'Brien 197

government. All sorts of passive defense measures have been developed to limit
the depredations of terrorists. However, it is impossible to guard all possible
targets of terrorists. Ultimately, terrorists must be attacked in their bases and the
governments and populations that provide those bases must be punished sufficiently
severely to discourage them from continuing support of or acquiescence in
terrorist operations.

Obviously, the country most plagued by terrorism has been Israel. Israel has
developed, in addition to impressive passive defense arrangements, a counterter-
rorist strategy of deterrence by example. No simple deterrent posture, such as
that of a nuclear deterrent, is possible as an answer to terrorism. Rather, by
preventive/attrition attacks on the sources of terrorist activity, the Israelis seek
to inflict unacceptable damage on the PLO and on the States and populations
that provide the sanctuaries and launching pads for terrorist attacks on Israel, on
Israelis, other Jews and their interests around the world,*!

On the whole, this counterterrorist deterrence/defense strategy has been
successful, It contributed decisively to the expulsion of the PLO from Jordan in
1970 and to the Syrian decision to bar PLO terrorist operations from being
launched from Syria. It was less successful when applied to PLO operations
launched from Lebanon because of the weakness and ultimate collapse of the
Lebanese government and polity.‘

However, Israel has paid a heavy price in terms of United Nations practice
and world opinion for its counterterror deterrent/defense strategy. The Security
Council and most participants in UN debates have consistently condemned
Israeli counterterror attacks in Egypt, Jordan, Syria and Lebanon. Israel has
claimed that these attacks are absolutely necessary as self-defense measures against
acontinued pattern of terrorist attacks launched from sanctuary States.*? But UN
practice has consistently held to a strict version of war-decision law that denies
Israel anything but immediate, on-the-spot self-defense. Israel’s counterterror
measures have been condemned as “reprisals” which are distinguished from
“self-defense.”

There is a complicated debate among publicists about the difference between
self-defense and reprisals that need not be revisited here.*© The question is
whether a “reasonable”- interpretation of the right of self-defense includes the
right to use preventive/attrition attacks against the sources ofa continuing pattern
of terrorist attacks. In the case of the April 15, 1986 U.S. attack on terrorist bases
in Libya, the answer was that such a continuing pattern of terrorism did require
a self-defense response in the form of an effective attack on the sources of
terrorism aimed at U.S. nationals and their interests as well as other targets.’”

Note that the American claim of counterterror self-defense is even broader
than that of Israel. Israel has sustained thousands of terrorist attacks in its own
territory, as well as suffering from attacks on its nationals and on other Jews and
their interests worldwide for over forty years. The United States has suffered


Turner 73

the area the Cambodian government did not object. Finally, in early 1970, the
United States and South Vietnam sent a large combined military force into the
area, destroying communist soldiers and arms caches found in their path.
Although the new government of Prime Minister Lon Nol appeared at least to
acquiesce in the intervention, the operation was justified by lawyers on the theory
that Cambodia had a legal duty to prevent its territory from being used for acts
of aggression against its neighbor, and South Vietnam had a right to defend itself
against such attacks even though they were not ordered or facilitated by the
Cambodian government.

The legal reasoning was sound. A fundamental restriction on traditional views
of “sovereignty” is contained in the duty imposed by international law upon.
every State not to permit its subjects or territory to be used to violate the rights
of other States. As Professor Oppenheim explains:

The duty of every State itself to abstain, and to prevent its agents and, in certain
cases, subjects, from committing any act which constitutes a violation of another
State’s independence or territorial or personal supremacy is correlative to the
corresponding right possessed by other States. It is impossible to enumerate all such.
actions as might constitute a violation of this duty. But it is of value to give some
illustrative examples. Thus, in the absence of treaty provisions to the contrary, a
state is not allowed to interfere in the management of their internal or international
affairs, nor to prevent them from doing or to compel them to do certain acts
in their domestic relations or international intercourse. Further, in the interest
of the territorial supremacy of other States, a State is not allowed to send its
troops, its men~of-war, or its police forces into or through foreign territory,
or to exercise an act of administration or jurisdiction on foreign territory,
without permission. .. .

Independence is not unlimited liberty for a State to do what it likes without any
restriction whatever. The mere fact that a State is a member of the Family of
Nations restricts its liberty of action with regard to other States, because it is bound
not to intervene in the affairs of other States."

Later in the same volume Oppenheim writes:

The duty of a State to prevent the commission within its territory of acts injurious
to foreign States does not imply an obligation to suppress all such conduct on the
part of private persons as is inimical to or critical of the régime or policy ofa foreign
State. Thus there is no duty to suppress revolutionary propaganda on the part of
private persons directed against a foreign Government. So long as International
Law provides no remedy against abuses of governmental power, international
society cannot be regarded as an institution for the mutual insurance of established
Governments. On the other hand, States are under a duty to prevent and suppress
such subversive activity against foreign Governments as assumes the form of armed
hostile expeditions or attempts to commit common crimes against life or property.
Moreover, while subversive activities against foreign States on the part of private
persons do not in principle engage the international responsibility of a State, such
activities when emanating directly from the Government itself or indirectly from


368 Index

seizure of criminal defendants from: See Criminal acts and lavr enforcement
Forfeiture of rights. See Waiver or forfeiture of rights
Foundationalist version of realism, 93-96
France
Catholic clergy’s opposition to French revolution, 229
Louis IX, struggle to establish sovereign state, 174-175, 209
military's view of “revolutionary wat” in third world, 269
Franklin, Ben, 287
Frontiers: See Borders or frontiers

Gelb, Leslie, 334-336
General Order No. 100 of 1863, 152
Genocide
democide, defined, 25
{just cause criterion, 189, 259
obligatio erga omnes, 59
sovereignty, subversion of concept of, 217-218
Germany
Eichmann, Adolf, kidnapping of, 102
Hamadi brothers, exemption of 1985 TWA 847 terrorists from criminal justice systems, 35-36
‘World War I, role of anticipatory self-defense in, 75
Geim warfare: See Weapons of mass destruction
Godfrey, E. Drexel, 330
Goldwater-Nichols Act of 1986, xvi
Good faith
international law, 43-44
multilateral approaches to self-defense as evidence of, 48-49
“Good ruler,” application of just war tradition to, 154
Gratian, 150
Greek states, classical view of statesmanship, 339-342
Grenada, US intervention in
issues affecting use of military force, 159-160, 310-311
legal analysis and just war analysis, distinguished, 238-239
Grotius, 150
Guerilla warfare
covert activities, 326
“deceptive peasant,” fear of, 166-167
nature of, xv
terrorism: See Terrorism and counterterrorism
use of, 3
Gulf War
Article 42 enforcement action, 182, 226
Catholic thinking following, 261-262
comparative justice criterion, 222, 229
de facto loss of authority, Congress acting to prevent, 281
economic sanctions as alternative to, 165, 212-213
environmental damage caused by Gulf War, 34-35
issues affecting use of military force in, 159-160
“lessons” of conflict, 30
limited ends, use of force to pursue, 289
news media's coverage of, 263
policy options, debate on, 251-252
proportionality
last resort criteria, violation of, 150, 190
success, probability of, 229


O'Brien 183

a clear and present danger.® Moreover, strict interpretations of self-defense
generally refused to consider low-intensity threats like exported revolution and
terrorism as “armed attacks.”®

“Reasonable” self-defense interpretations claimed a right of preemptive or
anticipatory self-defense, which was to be judged in the total context of the
situation, an example being Israel’s preemptive attack in the 1967 June War.”
“Reasonable” self-defense interpretations also sought to deal with the prolifera-
tion of cases of indirect aggression in the form of low-intensity warfare by
considering such behavior as “armed attacks” warranting self-defense measures
under Article 51. Thus, the Israelis claimed a right to carry out preventive/attri-
tion attacks against PLO bases in Arab countries as a reasonable form of
self-defense against terrorist attacks launched from those countries.® The Israelis
further extended this claim to a self-defense right to respond to attacks on Israeli
nationals and interests around the world. The United States adopted this concept
in the 1986 Libyan raid.”

On the whole, UN Security Council practice has reflected strict, literal
interpretations of war-decision law. It has rejected Israeli claims of self-defense
against terrorist attacks launched from sanctuary States.!° The general line of
Security Council condemnations of Israeli counter-terror actions has been based
on the view that self-defense measures should be limited to passive, on-the-spot
“resistance to attack." Discontinuous responses following terrorist attacks have
been condemned as “reprisals,”? No Security Council action condemning the
US. 1986 Libyan raid was possible but, with the exception of the United
Kingdom, Council members held to the strict version and denied the U.S. claim
of self-defense. The U.S. action was condemned by the General Assembly, !2

Thave called the more liberal approach to war-decision law “reasonable.” This
usage is not intended to beg the question in each debate over the legal
permissibility of recourse to armed force. It is intended to encourage an overall
evaluation of such recourse in the context of the practical situation rather than
a black letter law approach purporting to be based on a correct interpretation of
the language of the Charter. “Reasonable” approaches may be justified because
they offer practical alternatives to approaches that are unrealistic and unfair.

The strict UN war-decision law is based on a number of unrealistic assump-
tions. It assumes a highly effective machinery for peaceful settlement of disputes.
Our experience since 1945 is that many “disputes” are intractable, based on
profound differences that have embittered the parties over the years. The Charter
also assumed a practical monopoly of force in the international community
sufficient to ensure the peace. The Gulf War, authorized by the Security Council
as an enforcement action, was the first in forty-six years to provide a remedy to
a victim of aggression. It is quite unclear whether this enforcement action will
be the first in a series as a new world order develops or whether it will be the
last, a unique case. Lacking the protection of UN enforcement actions, victims


68 Legal & Moral Constraints on Low-Intensity Conflict

“Snalienable” right.* Furthermore, the French text (“dans un cas o un Membre
des Nations Unies est Vobjet d’une agression armée”) is not expressed in the form of
a condition and suggests that the English “if” was used to express an hypothesis
rather than a condition—which is, of course, one of the natural uses of “if.”®>

A similar view is taken by Professor Derek Bowett, in his 1958 book,
Self-Defence in International Law:

It is incontestable that prior to the Charter a right of self-defence was recognized
by general international law, so that the question which must be posed is whether
the Charter contains a prohibition of action which would normally be legitimate
as the exercise of self-defence, a right admitted and recognized by the general law.
‘We must presuppose that rights formerly belonging to member States continue
except in so far as obligations inconsistent with those existing rights are assumed
under the Charter.

Itis, therefore, fallacious to assume that members have only those rights which the
Charter accords to them; on the contrary they have those rights which general
international law accords to them except and in so far as they have surrendered
them under the Charter. ...

Now the relevant obligation assumed by members is, prima facie, that contained
in Art. 2(4):

“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations.” ‘

. . [T]he view of Committee I at San Francisco was that this prohibition left the
tight of self-defence unimpaired; in the words of its rapporteur ‘the use of arms in
legitimate self-defence remains admitted and unimpaired.’ Indeed, it is difficult to
see what other conclusion could be reached, for if we examine the substantive
rights protected by self-defence the absence of any inconsistency with Art. 2(4) is
apparent. Action undertaken for the purpose of, and limited to, the defence of a
State’s political independence, territorial integrity, the lives and property of its
nationals (and even to protect its economic independence) cannot by definition
involve a threat or use of force ‘against the territorial integrity or political
independence’ of any other State. To the extent that action in self-defence would
involve a breach of this obligation it would ipso facto cease to be within the
requirements of self-defence as permitted by general international law. Nor can it
be said that the protection of those same substantive rights by the exercise of
self-defence is ‘in any manner inconsistent with the Purposes of the United
Nations’; those purposes hinge primarily on the maintenance of international peace
and security, and it would be a strange conclusion if a State’s protection of its own
legitimate interests were inconsistent with that end.

Of particular relevance to the field of low-intensity conflict, the right of
self-defense permits States to use necessary and proportional force in response to
direct and indirect forms of armed aggression. One of the world’s leading


xvi

the mid-eighties it was often employed as a critical label by those who wished
to discourage any but the most obviously defensive use of American power
abroad. Even as late as 1988, it was used in this way in a widely read volume of
essays edited by Michael Klare and Peter Kornbluh that treated the intentions
and capabilities of the United States in low-intensity conflict with grim reserve.!

The renewed determination evinced by the Reagan Doctrine to counter the
sub-conventional challenges of the Soviet Union gave low-intensity conflict a
continuing, if controversial, currency. But it was probably the fact that our
low-intensity conflict strategies began to succeed, which became increasingly
evident throughout the eighties in places as unlike as Afghanistan and El Salvador,
that made possible public discourse in which low-intensity conflict could be
treated as a legitimate interest of the United States government. The estab-
lishment by the 1986 Goldwater-Nichols Act of the Office of Assistant Secretary
of Defense for Special Operations and Low-Intensity Conflict gave the term an
official solidity and provided a valuable locus for efforts to develop a comprehen-
sive policy to deal with all the activities it had been used to describe.

Though the respectable use of low-intensity conflict had been long established
by 1992, the subsidence of the Soviet threat sharpened nagging concerns about
its moral and legal ambiguities and added a worrying new dimension of
ontological uncertainty to the whole enterprise. If low-intensity conflict had
principally been used to describe the various manifestations of Soviet mischief
around the globe, to what would it now refer? If it was to be applied to the
ancient kinds of nastiness that seem always to reassert themselves at the collapse
of empires, then the efforts of Reagan era low-intensity conflict proponents to
adapt traditional modes of moral and legal reasoning to meet the insidious
challenges ofa “new” kind of conflict might began to seem retrospectively fishy.
But if the Cold War had actually wrought a temporary deformation in the
evolution of international law and morality, those new interpretations of such
concepts as sovereignty and legitimate self-defense might well have been justified
and could even help to secure wider respect for human rights and democratic
institutions in the future. It was in this tentative atmosphere, a reflective pause
after a prolonged period of enthusiasm and success, that the low-intensity conflict
symposium was convened.

There is abundant literature on the subject of low-intensity conflict, most of
it dealing, as one would expect, with the practical difficulties of coping with
such thorny military challenges as counter- and pro-insurgency. A subset of the
literature is concerned with the political ambiguities of the low-intensity arena
and the difficulties it holds for policy makers and diplomats. But very little effort
has been devoted to analysing why this kind of conflict is so problematic for a
democracy such as the United States and even less to anatomising the exact
nature of the normative constraints that seem to hem us in from every side when.
we confront a foreign challenge short of conventional war.


O'Brien 189

all of the just war jus ad bellum conditions presuppose that the putative just side,
including all parties to it, has adequate competent authority.

Just Cause. The broad category of just cause examines the substance of the cause

and the comparative justice of the adversaries. It also weighs the good that is
sought against the means required to achieve it and the consequences of using
force. This calculation of proportionality must be conducted in the light of the
probability of success after reasonable exhaustion of peaceful remedies.

The substance of the cause in modern just war doctrine is individual and collective
self-defense. There is no present consensus in just war doctrine supporting a right
of military intervention for reasons not covered by self-defense. This leaves a gap
in the doctrine that needs to be filled. Two kinds of recourses to force can be
conceived which do not clearly fall into the category of self-defense: humani-
tarian intervention and just revolution.

As remarked in the discussion of international war-decision law, an exception
to the principle of non-intervention is sometimes made for intervention to
protect nationals abroad in clear and present danger. However, there has thus far
been little acceptance of an exception of humanitarian intervention in cases
where a foreign power would intervene to save a people from its own oppressive
or even genocidal government. This remains an open question in international
law and just war doctrine could support a trend to recognize humanitarian
intervention as a legitimate action—provided that it was clearly humanitarian,
aimed at saving an oppressed population, and not self-serving.

The substance of the just cause in just revolution is to remove a government
that is intolerable to its subjects and replace it with one representative of or at
least acceptable to them. In a broad sense, this just cause is a kind of self-defense
of the people. In the kind of situation envisaged by advocates of humanitarian
intervention, resistance to a violently oppressive or genocidal incumbent govern-
ment may literally be justified as self-defense. However, in most cases of
revolution the just cause is the removal of a bad, unrepresentative government
and its replacement with one acceptable to the people. More attention to the
definition of just cause for revolutionary war is needed because self-defense does
not really describe the cause in most revolutionary wars. A revolutionary war is
usually a war of choice. It is not thrust upon the people except in cases where
oppression has taken a particularly violent form. Accordingly, the necessity for
violent change must be demonstrated in order to provide a referent for the
requirement of proportionality of means to ends. Lacking sufficient warrant in
contemporary just war doctrine for a more elaborate concept of just cause other
than self-defense, I will simply conclude that there are two categories of just
cause: self-defense and just revolution.


88 Legal & Moral Constraints on Low-Intensity Conflict

that the radical regime syndrome is a major component of the problem, however,
it may even be that radical regime elites should be the primary focus of democratic
nation deterrence strategies.

(5) Consistent efforts should be made internationally to foster understanding that
the low-intensity conflict spectrum, as with the high-intensity spectrum, requires
policies that will ensure effective deterrence. Without strategies of effective
deterrence, it can be expected that low-intensity, State-sponsored violence will
continue and possibly accelerate. I, for one, believe that the generally weak
response of democratic nations to such low-intensity attack over the last three
decades is a major part of the synergy contributing to the continuation of such
attacks.

E. Finally, there is a series of actions that the United States and all democratic
nations must undertake when responding to low-intensity aggression if their
actions are to foster broad international understanding:

(1) Before any defensive response is undertaken to an ongoing pattern of low-in-
tensity attack, the United States should present evidence of the aggressive attack
before the Security Council of the United Nations and notify the Council that if
the aggression continues, the United States will take appropriate action in response
under Article 51 of the Charter. (Note that, consistent with protecting intelligence
sources and methods, notification need not include all of the evidence of the
attack.) This notification requirement is a legal obligation for a defensive response,
and if it is neglected, the United States action will be politically harmed. Whether
the action to be undertaken in response to aggression is overt or covert, it is not
necessary to identify precisely what it will be or when it will take place. The
occasion of Security Council notification should be used as a critical opportunity
for generating public awareness of the nature of the continuing aggressive attack.
If necessary, the evidence should be repeatedly presented before the Security
Council.

(2) In cases of defensive response against low-intensity attack, it is particularly
important to indicate that the response is in defense against an ongoing and sustained
pattern of attack, not merely a response to what may have been the latest bombing
or other terrorist attack in a series.

(3) Itis very important that United States spokesmen clearly and consistently base
responsive defensive actions in Article 51 of the United Nations Charter. Such an
action should not be called a reprisal or anything other than a defensive response
against ongoing armed aggression.

(4) Defensive actions should be carefilly planned to be consistent with the laws
of war and should be proportional, while employing adequate levels of force to
quickly prevail and deter for the future. Too little force does not deter and simply
discredits the defensive response. The Gulf defensive effort generally provides a
good example ofan appropriate response. Similarly, it is essential that governmental
spokesmen fully respond in detail to the usual disinformation efforts suggesting
that such responses are non-proportional or illegal. The defensive effort, if it is to
effectively prevail, must also win the associated political struggle.


312 Legal & Moral Constraints on Low-Intensity Conflict

multilaterally. In the Gulf War, for example, even if the United Nations Security
Council had not given us its approval for the use of force against Iraq, the United
States still would have been able to develop a very solid coalition with allies in
Europe and the Arab world, North Africa and Japan. Are there any dangers
related to our new-found enthusiasm for the United Nations Security Council,
or are we comfortable and do we believe, as Judge Sofaer put it, that we have
no other choice but to continue along that course? Taking the multilateral route
will have tremendous implications for low-intensity conflict because sooner or
later, we will probably fail to get United Nations support for a particular policy.
Indeed, the dynamics of the Security Council itself are subject to change. We
do not know how long, for example, China will be as pliable and as cooperative
as it has been over the last two years, and there are still open questions, of course,
about the future of Russia and its democratic orientation.

Let me stop at this point and open the floor for questions and discussion. I
will exercise my chairman’s privilege to ask that we directly address Professor
Reisman’s point about the danger of just war as an ideology that might be used
to justify proactive behavior abroad. I am very curious about how Professors
Weigel, Johnson and O’Brien would respond to that concern,

MR. WEIGEL: I think it’s a very wise counsel of caution. Put another way,
what I hear Professor Reisman suggesting is that we keep intact the border
between the just war tradition properly understood, and the crusading or Holy
War tradition, which is obviously not what any of us, I think, are talking about
here. Part of the problem with getting a grip on this is semantic. If we thought
in terms of a justifiable war tradition, that simple semantic shift would make it
easier for us to understand that not everything that is morally justifiable is
necessarily wise as a matter of State. 1 think what Professor Johnson said this
morning, about the just war tradition as one resource among others for the
construction of prudent and wise policy, is very much worth repeating. When
we expand the purview of the just war tradition to claim that a morally justifiable
action is morally obligatory, or necessarily wise, we cross the border between
just war tradition and other forms of reasoning. If we think only in terms of
justifiable resort to armed force, we may be able to keep to firmer ground.

PROF. COLL: The expression “just war” often connotes the idea ofa war for
justice, which is not its key meaning. I think I agree with you that we need to
think in terms of justifiable war, but many people read it as a war for justice.

MR. WEIGEL: I think the point is that one can imagine any number of
scenarios, even under a low-intensity conflict rubric, in which the result of the
moral calculus seems to be positive, and yet, for a host of other reasons, one
decides that what is proposed is not prudent.


Johnson 155

contemporary policy language. At the present, however, my point is simply that
just war reflection belongs at the policy level, even as it does at the level of
decisions of the head of state.

3. Military Command. The presence of just war criteria in the interna-
tional law of war and in contemporary military manuals and regulations demon-
strates plainly the relation between these basic cultural ideas about the proper use
of military force and the responsibility of persons in military command. Obvi-
ously, there are differences in degrees of responsibility according to rank and
assignment in military service. Commanders at higher levels bear greater burdens
of responsibility than subordinates and also have greater ability to influence how
military force is employed. They decide on military objectives, prioritize targets,
choose weapons and decide what people will be put at risk. The great respon-
sibilities and discretionary powers of the military commander underscore the
fundamentally moral nature of command and draw him fully into the circle of
reflection on the relation of moral values to combat.

4. The Individual in Military Service. United States military regulations
reflect domestic and international law in placing final responsibility upon an
individual for his actions. Ignorance of the law does not excuse violation of it;
nor does obedience to unlawful orders. Nor does the “law” in question have to
be framed as positive law. The Nuremberg precedent makes clear that the
fundamental moral notions that have shaped positive law remain binding even
when they are not given explicit expression within it. If this were all that needed
to be said, the result would be military anarchy, making war more dangerous
and destructive for soldiers and civilians alike. The moral requirements of the
just war tradition are accordingly condensed and given practical focus in its
treatment of military discipline. To avoid worsening violence with chaos, orders
and actions in accord with military discipline are given a presumption of rightness
that imposes a duty to obey on the private soldier. Yet that duty is never absolute;
the moral nature of the individual implicitly imposes a check on it. This means
that moral responsibility extends up and down the chain of command. No soldier
should be asked to fight in an unjust war or under unjust orders. But at the same
time, the soldier owes a presumption of rightness to his commanders, the political
leadership and the country as a whole.

5. The Private Citizen. In a democratic society the private citizen is not
at the bottom ofa chain of command but, in an important sense, at the top, since
the representatives he elects give character to the nation and influence its foreign
policies. This side of the Kingdom of God on earth or some other utopia, the
use of force is an essential part of politics. War does not belong outside the sphere
of the moral but, like other human activities, is fundamentally moral in nature.
It is the citizen’s obligation to ensure that the nation’s military policies and its
decisions regarding the use of force remain in concert with the moral values that




80 Legal & Moral Constraints on Low-Intensity Conflict

(4) Reasonable efforts must be taken to avoid any unnecessary interference in the
internal affairs of other States; and

(5) Consistent with (4), all intervention in the second State must be brought to
an end at the earliest possible date.

Closing Thoughts:
A Critical Era of Challenge and Change

As we move further into the 1990s, it is imperative that policymakers
recognize the critical nature of this moment in history. Containment! worked,
the heart of the Leninist empire has ceased beating, and it is quite possible that
the United States will stand alone as a world superpower for the foreseeable
future. Indeed, many observers believe it is a certainty that the United States will
remain the world’s only “superpower” for coming years.

Such thinking ignores the possibility of new alliances—most of the modern
world is run by individuals raised on balance-of-power strategic thinking—as
well as the probable diminution of U.S. strength that a few years of “peacetime”
cuts will bring. Whether major challenges arise to “balance” American power
will in large part be determined by world perceptions of American ambition and
behavior. A benevolent America, cast in the tone of the post World War II gentle
giant that rebuilt Europe and Japan while dedicating its nuclear monopoly to
preserving peace, is likely to be tolerated far longer than an America determined
to have its way across the board.

It is therefore imperative to reaffirm the “peace through justice” strategy of
our founders. The more the U.S. is perceived as reckless and anxious to impose
unilateral solutions to world problems, the more likely it is to find a growing
“anti-United States” alliance of necessity growing across both oceans. The most
fundamental principles of morality demand that the powerful giant resort to force
with extreme reluctance and only to promote justice and defend essential
interests. If the United States’ role as world giant is to survive unchallenged, our
leaders must by words and conduct assure friends and foes alike of our firm
commitment to justice.

I share the view held by many others — a view that dates back at least as far
as Immanuel Kant’s Perpetual Peace — that democratic states tend to be less
aggressive in their nature than authoritarian or totalitarian States. I support
assistance to Russia and the former Soviet empire not only because it is just and
tight from a humanitarian point of view, but also because the long-term prospects
for world peace will be greatly influenced by the direction these important States
take in the coming years.

Much of the democratic progress registered in Eastern Europe in the past few
years is premised upon a perception of American fairness and good will. If
America chooses to become the world’s “Big Brother,” promoting its narrow


280 Legal & Moral Constraints on Low-Intensity Conflict

leaders will last a lot longer and be much more effective than those who do not
employ these methods.

My assignment, Alberto wrote, was to deal with the legal traditions, norms
and morals of American society that constrain resort to low-intensity conflict.
Of course, Mahan would again approve of this because he strongly resisted legal
rules that unreasonably or unequally restricted military options. He took law
seriously. He saw clearly the influence over time that legal and moral norms
could come to exercise on military operations. So, he firmly opposed rules, both
domestic and international, that deprived the United States of any important
military advantage without sufficient offsetting value.

This is obviously not the time nor the place for a comprehensive treatment
of every existing legal restraint, every moral impulse in American breasts, and
every political institution that influences low-intensity conflict. But a brief
overview of the principal forms of legal constraints should be usefull in appraising
the existing and potential effects of law on this important strategic option. For a
more detailed explanation of these factors, I recommend you fill out the form
you have for Michael Reisman’s book on covert operations. It is a superb work;
analytical, pithy and full of useful information and wisdom.

In general, our domestic legal traditions and practices exercise constitutional,
statutory, and regulatory constraints on conflict. Additional constraints exist based
on the U.N. Charter, treaties, practice, and the principle of reciprocity. While
each category of these restraints can have a separate, significant impact, the most
efficient way to discuss them in the brief time available, is through a functional
evaluation that focuses on selected examples of activities involved in low-inten-
sity conflict, and that examines the key issues related to each activity. Typical of
these activities are rescue operations, abductions, measures against State-spon-
sored terrorism, and the support of armed insurgencies.

The basic question that we have to ask ourselves, and that runs throughout my
brief presentation, is the one that was asked very pointedly yesterday: Why do these
activities deserve special study? What is unique about them? I would submit they
merit study for many good reasons. First, with respect to domestic limitations,
strong arguments can be made either that the President has inherent authority
to use limited force to protect Americans through rescues or anti-terrorist strikes,
or that Congress has approved such activities in various statutes authorizing the
arrest of terrorists and establishing the special forces intended for such purposes.

Much stronger arguments can be made with respect to low-intensity conflict
along those lines than with respect to high-intensity or conventional conflicts.
Furthermore, while the War Powers Resolution applies to low-intensity ac-
tivities involving the use of regular combat forces, these activities generally do
not involve such forces. At least, that’s the way we interpreted it in the Reagan
Administration, and that interpretation has been accepted. Also, many of the
activities involved in low-intensity operations take less than 60 days, and so never


Johnson 169

8, CHILDRESS, MORAL RESPONSIBILITY IN CONFLICTS: ESSAYS ON NONVIOLENCE, WAR, AND
CONSCIENCE (1982).
9, RAMSEY, WAR AND THE CHRISTIAN CONSCIENCE (1961).

10, RAMSEY, THE JUST WAR: FORCE AND POLITICAL RESPONSIBILITY (1968).

11. WALZER, JUST AND UNJUST WARS (1977).

12. For filler discussion of these two positions within a just war framework, see Johnson, Just War Thinking
and ts Contemporary Application: The Moral Significance of the Weinberger Doctrine, 81-113 in THE RECOURSE
TO WAR: A MORAL APPRAISAL OF THE “WEINBERGER DOCTRINE”, (Sabrosky and Sloane eds, 1988)
or Vol 1, Small Wars and Insurgencies, 146-70 (1990).

13, Thompson, Low-Intensity Conflia: An Overview, in LOW-INTENSITY CONFLICT 1-25 (Thompson
ed, 1989).

14, Td, at 2.

15, LIEBER, GUERILLA PARTIES (1862).

16, 1907 Hague Convention IV, Annex: Regulations Respecting the Laws and Customs of War on Land,
Section I, Chapter I.

17. The case is taken from Marcel Ophuls’ documentary film The Sorrow and the Pity: a platoon of German
soldiers is “on a march through the French countryside during the years of the German occupation. They
passed a group of young men, French peasants, or so it seemed, digging potatoes. But these were not in fact
peasants; they were members of the Resistance. As the Germans marched by, the ‘peasants’ dropped their
shovels, picked up guns hidden in the field, and opened fire. Fourteen of the soldiers were hit.” WALZER,
JUST AND UNJUST WARS 176 (197).


Panel Discussion 239

case could be made that Libya was making a connected series of military probes
against the United States, and a proportionate response under the rubric of
self-defense was legitimate. I could have argued the other side but I’m saying
there’s a very respectable legal case to be made there within contemporary
restraints.

Asa number of us have said, I think it’s rather hard to make a case for Panama
as a lawyer. Nor can you make the case very effectively in Grenada. That’s why
even Margaret Thatcher voted to censure us for Grenada, although we had a
little better case there than we did in Panama.

Nicaragua was another case where a respectable legal argument could be made
and was made by a number of advocates of assistance to the Contras. If we have
the time I would make the contrary argument. The bottom line, if we look at
these concrete cases and these are perhaps the most celebrated ones, is that
international law as generally recognized by international lawyers and a very wide
spectrum of opinion among our closest allies would have allowed us to engage
in perhaps the most important uses of force that we have seen during the last 15
years.

PROF. COLL: Let me ask again to please identify yourself and your institution
before you speak.

MR. CONNELY: Tom Connely, with the Office of the Joint Chief of Staff.

I take exception to Professor O’Brien’s characterization of international law
as being limited. Rather than looking at the example you used, the Security
Council resolutions concerning the Israeli attack, a different approach with
respect to the use of force might be to look at the practice and expectations, or
as Professor Reisman says, incidents, where the Israelis really have created the
norm. By responding to terrorist attacks, the United States used that same
rationale. The Turks use it when they go after the Kurds in Iraq, and now most
recently, Iran has used it. If you examine the practice and expectation of the
legitimate component of international law over time, rather than in the light of
a Security Council resolution formulated in reaction to a specific incident, how
do you determine the legitimacy of the low end of low-intensity conflict —
covert operations? How can we expect just war principles realistically to be
applied to activities that are so secretive?

PROF. O’BRIEN: [ havea problem with covert activity because I don’t think
there’s very much of it. We can’t keep secrets in Washington. I would think that
a covert operation would be covered, as Jim Johnson said about low-intensity
conflict generally, by the same rules of just war doctrine. The fact that the
evaluation would be covert wouldn’t change the requirement to meet all the
various conditions.


246 Legal & Moral Constraints on Low-Intensity Conflict

people make decisions, whether they’re making decisions domestically or inter-
nationally.

I always like to hear Bill. He’s so realistic and so refreshing and so common
sense. The only question I have is whether or not he’s using the wrong terms to
describe what he’s doing.

PROF. COLL: The last intervention this afternoon is from John Collins from.
the Library of Congress.

MR. COLLINS: We spent all day listening to fascinating legal, philosophical
and theoretical views of sovereignty and just war and the right of self-defense,
and I’m sitting here asking myself how do I use this mish-mash of ideas for any
practical purpose in my job? How will you synthesize the ideas that we have
enjoyed all day and put them to some practical use?

PROF. COLL: I think that the process that we're engaged in here presupposes
several things. One is that decisionmakers, as Admiral Harlow reminded us, are
human beings, they’re moral beings, they’re zeasoning beings. In Admiral
Harlow’s words, they carry baggage with them. They have presuppositions,
assumptions and notions about reality. These ideas are ultimately moral in
character because they affect how those who believe in them act morally. They
fix the bearings that their owners take in a world in which all action takes place
against the background of a moral structure.

I think that the kinds of discussions that we have had here, first of all, push us
into grappling with some of the more awkward, more uncomfortable questions.
They push us to look beyond the kinds of operational processes that we’re
involved in day-to-day, which often degenerate into turf fighting and the pursuit
of bureaucratic power for its own sake. They push us toward asking questions
about ends and goals. What is it that we should b2 about and what are the limits
as we go about seeking these public policy goals? Anyone in either the State
Department or the Defense Department that is involved in the formulation of
policy, is involved whether he or she likes it or not, in the process of moral
reasoning as well as legal reasoning. We also live in a society in which it’s very
important for us to understand, by virtue of its strategic culture, by virtue of its
domestic moral values, and also by virtue of its role and its responsibilities in the
world, what kinds of constraints are placed on our policymaking. And so, I see
this as a process that helps us to clarify our assumptions, that broadens our
viewpoint and that takes us back to first questions. In that, I think I see a
tremendous value. This is not a mechanical world. I will not walk out of here
able to decide in a lock-step fashion what particular policies we should support
towards Peru, a very good example of a low-intensity dilemma unfolding before
our eyes right now. But, I do think that a few points have been made, a few


154 Legal & Moral Constraints on Low-Intensity Conflict

comparable to Ramsey’s 1961 work. Walzer’s purpose, as expressed in the
preface, was to rehabilitate just war reasoning for the contemporary debate. Other
philosophers who have explicitly employed just war reasoning in their writings
about ethics and war range from Elizabeth Anscombe to Robert W. Phillips.
The just war idea is an influential presence in philosophical as well as in
theological debate — not, again, as something imposed from outside but as a
way of thinking about ethics and war that is integral to theological and
philosophical argumentation.

In summary, just war tradition has become deeply rooted in the way
Americans think about what justifies war and what restraints should govern it.
Public thinking on the use of force has been influenced so strongly by the
tradition that policy decisions couched in terms of just war criteria are readily
taken up in the to and fro of the ongoing debate.

C. Levels of Application of Just War Tradition in
the National Use of Military Force

The just war tradition may be applied to several distinct layers of responsibility,
descending from the highest level of political leadership through policy makers
to military commanders of all ranks and their enlisted personnel, while not
excluding the reflective citizen who takes an active interest in the national policy
debate. In other words, just war tradition offers moral guidance, lays down
obligations, and establishes a framework for critical moral reflection at all these
levels. Let me comment briefly on each.

1. The Head of State. The ideal of the “good ruler” is deeply rooted in
western culture. The power of such a political leader is not merely statutory, but
is given moral authority by the virtue of his actions. As Ramsey and Walzer have
argued, by providing the statesman with a protocol of restraints and justifications
to guide his thinking about the use of force, the just war tradition establishes a
framework for the realization of this ideal. Such a perspective is a direct challenge
to that form of political realism that considers the best politics to be totally
value-free. Even if such a value-free state of affairs were achievable in practice,
it could not serve the public good in a society characterized by deeply rooted
moral values. For the head of state to take into account the moral wisdom
contained in just war tradition is, then, nothing less than right politics.

2. The Policy Debate. Essentially the same considerations apply a notch
lower, at the level of the policy intellectuals both inside and outside of govern-
ment. Again, the issue is whether a more adequate understanding of politics is
provided by an effort to achieve a value-free “realism” or whether it is to be
found in an effort to incorporate into policy formulation and associated decisions
moral values deeply held in the political society. In Part II of this paper I will
follow this consideration further, examining the translation of just war ideas into


Index

“Radical regime syndrome,” 29

personal-level deterrence, 37-38
Radio Free Europe and Radio Liberty, 326
Raison de guerre, war-conduct requirement of proportion at level of, 193
Raison d'etat, war-decision requirement of proportion at level of, 193
Ramsey, Paul, 147, 153, 154, 276-277
Reagan, Ronald (President of Us)

covert activities: See more specific matters

Libya, Reagan's speech concerning, 234

Nicaraguan conflict: See Nicaragua

Reagan Doctrine, xvi

Afghanistan, covert operations in, 290-291
Stimson Doctrine corollary, 50

unilateral actions of US during Reagan era, 120

‘War Powers Resolution, principles of, 187, 280-281
Realism

‘Communitarian: See Communitarian realism

construction of, 110-113

covert activities conducted in realist context, 334-336

critique of, 94-96

normative realism: See Normative realism

policy debate, just war tradition in, 154-155

types of, 90-94
Realpolitik, policy-making according to categories of, 252
“Reasonableness,” standards of, 182-184, 186-192, 228, 234-235
Reciprocity principle, 43-44, 46-48

intemational law dependent on, 233

US, special role of, 122, 237-238
Recognition by international community

intervention, justification for, 188

membership in UN, effect of absence of, 67

wrongfillly seized territory, Stimson and Reagan Doctrines applied to, 50
Recovery of something wrongfilly taken, just war tradition as including, 212, 257
Redistribution of wealth, 308, 316
Reform

American character, reformist zeal in, 248

military reform legislation of 1986, effect of, 268
“Reform” intervention

American character, reformist zeal in, 248

right to engage in, absence of, 217

South Vietnamese government, 1963 removal of, 210

tyrannical leaders, judgment as to what constitutes, 209, 211

universal right of revolution affecting validity of, 216
Regicide, cultural uneasiness about, 164, 213
“Reinvigoration” of UN, effect of, 159-160, 168, 284, 299, 311-312
Relativism, communitarian realism, 95
Religion and religious matters

Christianity: See Christianity

“cuius regio, eius religio,” 10

Evangelical religions, 261

ideological zealotry, challenges posed by, 161, 213

just war tradition, influence on, 147-151, 153-154, 234

Muslims: See Islamic religion

teaching institutions, integrating moral and political ideas in, 260, 262, 298-299
Reporting requirement of Article 51, 71

381


Panel Discussion 225

contemporary world would provide the necessary framework within which you
could examine the relevance of these concerns, in an open and fair, and as far as.
possible, non-culture specific way. It seems to me that democracy is, in fact, the
answer to that, and so maybe you all saw a wisdom in all of this that I, in writing
my paper, didn’t see.

FR. WINTERS: Just to put in a word, while I may give the impression of
being neutral toward democracy, this is not the case, nor am I neutral toward
American democracy. Those of you who travel a lot, and I think Tom was struck
by this on his visit to Germany, know that what’s happening here today is really
quite distinctively American. I have spent a certain amount of time in France.
What we’re doing here could not happen in France. That the military, the clergy,
theologians, lawyers, State Department and CIA should all find themselves in
one room talking about the ethics of war, is really quite a unique and distinctive
American phenomenon and I could not be more at home here.

PROF. COLL: Thank you, Father Winters.

We will take a short break and then come back. After the next paper and
discussion, I will try to share with you, from my viewpoint, some of the key
themes and questions that we need to continue to wrestle with. Thank you.

PROR,. COLL: It’s quite appropriate to resume our discussion by turning to
William O’Brien’s paper on Just War and I will turn the floor over to him now.

PROF. O’BRIEN: Thank you, Alberto.

My assignment was to talk about the relation of the modern just war doctrine
to international law. In effect, it serves as kind of a bridge between people
primarily acquainted with international law and those primarily focused on just
war. It’s a relation that’s not that difficult to discuss today, but several years ago
it would have been. It seems to me that in the last, roughly 10 to 15 years, interest
in just war doctrine has increased markedly in the United States Government,
and particularly in the military. Several of us, like Jim Johnson, Father Winters
and myself have lectured here and at the Army War College. I was gratified to
discover when I lectured at West Point several years ago, that every single student
ina required ethics course in second year was reading Michael Walzer. So I think
it’s not surprising that you see over the years an increased use of language both
from international law and from just war in the policy justifications that are made
by the United States Government. Now, you don’t have to agree with the
policies, but I think we’ve made a lot of progress, at least in my lifetime. I don’t
remember all this concern with proportion and discrimination in World War II.
Certainly not. It was more of a holy war attitude that we were right to use


308 Legal & Moral Constraints on Low-Intensity Conflict

security. As you know, traditionally, the United States has viewed terrorism as
a law enforcement issue. The FBI has cognizance of terrorism in the United
States, and the State Department internationally. In 1983, 84, ’85, people started
looking at that issue and wondered whether the new dimension of State-spon-
sored terrorism would warrant a different view of our appropriate response. In
view of the State-sponsorship of these acts and their impact on American citizens,
civil aviation, and the world community in general, I believed that it was
appropriate to exercise the extraordinary right of self-defense. So I, for one,
supported what led up to the Libya raid. I cannot establish in my own mind,
based on the evidence, that it did a hell of a lot of good. I suspect it may have
deterred terrorism internationally. In any event, I supported that conversion from.
law enforcement to national security. The same issue may have to be faced in
future years with regard to drug enforcement. I’m not proposing that shift be
made now, because I see no firm evidence of State sponsorship of drug running.
But if that were to arise, I would support the exercise of the extraordinary right
of self-defense.

I think one surprising thing during these last two days was the lack of discussion
of the North/South issue. I think many nations perceive this as a situation where
the rich get richer and the poor get poorer. International law and international
relations have yet to come filly to grips with the question of redistribution of
wealth; either voluntarily or through some systematic procedure. I’m not
suggesting that I have an answer to that, but I am suggesting that it would certainly
please me, and I think please many Americans, if the President came to grips
with that issue and expressed the willingness to work with the community of
nations toward what the Third World calls a new economic order that would
address this issue. I think it’s in our selfish interest to do so, if for no other reason
than conflict avoidance.

In any event, I think that Americans would support a balanced Presidential
statement recognizing that we can and should live with diversity, but at the same
time need not live with threats to our economic or social well-being, and that
we will protect our interests, and those of our allies.

I think that the theme of such a speech could be taken from the transcripts of
our meetings. Going a few steps further, a national decision memorandum
supporting the speech might require a Department of Defense concept im-
plementation plan for low-intensity conflict. I would suggest that such a plan
contain a statement of the unique nature of the challenge posed by low-intensity
conflict. I’d also include in the paper a strategy to deal with this challenge. I
would develop a catalog of countermeasures. Additionally, I would include a
crisis management plan. There’s been a lot of useful discussion here about who
would be in charge and how the agencies would coordinate and develop such a
plan to implement a policy, if the President announced it.


Turner 59

The legal theory of “peremptory norms” was embraced by the International
Law Commission in the mid-1960s, and through its efforts, was embodied in the
1969 Vienna Convention on the Law of Treaties.°” Some commentators trace
its origins to municipal legal principles of “public policy,”®® but I suggest that
peremptory norms reflect a return to once discredited principles of Natural Law.
Irrespective of their intellectual origins, they have dramatically transformed the
content of international law. Whereas historically it was viewed as a wrongful
act for a state to publicly criticize the conduct of another sovereign State for its
internal policies, today all States are held to owe an obligation to all mankind
(obligatio erga omnes) not to commit armed aggression, genocide, slavery, and a
number of other human rights violations.

Low-Intensity Conflict and the Modern
Law of Sovereignty

The concept of sovereignty has changed markedly over the past four centuries,
Today it is not only a more limited doctrine, but there is widespread agreement that
its contemporary basis is the will of the people. By 1956, more than 70% of the
nations of the world, including within their borders about 80% of the world’s total
population, were governed by constitutions which declared that sovereignty rests
ultimately in the people of the state.>° When one adds to this figure the number of
States which view sovereignty as being vested jointly in a monarch or other
“sovereign” and the people, “the percentage of the world’s total population who
consider the people to be a source of sovereign power becomes over 95 percent.”

There may be some interesting and largely unexplored aspects of a growing
consensus that the people of a State are the ultimate source of its sovereignty,
particularly in this era of democratic revolution. Between 1979 and 1986, the
number of Latin American countries that chose their leaders by reasonably free
and democratic elections increased from approximately one third to over 80
percent. Today the figure is even higher. In the past three to four years a similar
democratic revolution has swept through Eastern Europe and the former Soviet
Union. Even in Africa, the trend is toward democracy (although much remains
to be done). According to the prestigious human rights group, Freedom House,
1991 was the first year in which “both the number of Free countries and their
populations outnumbered the Not Free countries and their populations.”
Indeed, this data indicates that more than 70 percent of the 171 nations examined
were either democracies or in some stage of democratic transition.

Given the fact that democracies tend not to attack other democracies, the
cause of peace may ultimately be served by restricting the role which non-
democratic States are permitted to play in the world community. Certainly they
should be protected against external aggression; but if sovereign power is the
exclusive province of the people in every State, is it logical to allow totalitarian


Panel Discussion 221
FR. WINTERS: Okay.
PROF. WAKIN: For example, genocide.
FR. WINTERS: Same.
PROF. WAKIN: Slavery.

FR. WINTERS: It is not possible to say that a political form, as such, is
universal. Now, when you talk about slavery, for, example, which is a very hard
case, you're not simply talking about a political society. You're talking about the
subjugation of one block of people to another. That’s not only a question of
politics. So when I talk about politics being culturally specific, I’m not talking
about economics, which is the fundamental thing at work in slavery, I assume.
I'm talking about ways of organizing society, the political interactions among
people within boundaries. In that realm, I think that the possibilities of human
invention are endless. I guess, I never thought about it this way but I think what
I’m protesting against when we insist on this equation between democracy and
legitimacy, is that it is fundamentally opposed to the notion of human liberty. I
don’t think it can be all poured into one form.

PROF. COLL: Professor Reisman.

PROF. REISMAN: This morning Fernando Teson expressed a view, I think,
that was acceptable to everyone here. And that was that the notion of the use of
force by a strong state like the United States simply to further national interests,
this atomistic notion that it’s good for us, therefore it’s good, was unacceptable.
This is known as normative realism. To avoid this stance, you must, in effect,
have criteria which you believe transcend your own culture when you make
judgements about what goes on in another culture, in another State. You need
that. We've all tried to attach ourselves to this notion of universal norms.
Father Winters says that such standards are largely chimerical and that justice
is situation specific. I’m quite sure that that was a correct statement when Aristotle
said it, and I’m quite sure it was a correct statement when the missionaries came
to the New World and undertook to win the souls of its indigenous population.
l agree with Tom Farer, that the attempt to postulate universal norms today is
not a manifestation of imperial arrogance. I don’t think Father Winters is correct
in saying that these matters are culture specific. I think the emergence of a global
culture involves a vast process of homogenization. A common set of values is
being imposed around the globe from the top down, admittedly very often against
the will of peoples attached to their own traditions. I think that many of those
values are expressed in a few documents, most of which unquestionably were


202 Legal & Moral Constraints on Low-Intensity Conflict

5. See, ¢g. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275-78, 367
(1963); OPPENHEIM, INTERNATIONAL LAW 154-156 (7th ed. 1952); Wright, The Cuban Quarantine, 57
Am. J. Int'l L, 560-65 (1963); Intervention 1956, 51 Am. J. Int’l L. 270 (1957); HENKIN, HOW NATIONS
BEHAVE 140-46 (2nd ed. 1979).

6. See, eg, BROWNLIE, supra n. 5, at 278-9. See also the application of the restrictive view of UN
war-decision law to Israeli counter-terror operations, summarized in O'BRIEN, LAW AND MORALITY IN
ISRAEL'S WAR WITH THE PLO 102-12 (1991).

7. MCDOUGAL & FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 224-244 (1961),
BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 53-4, 270-75 (1958); STONE, LEGAL CONTROLS:
OF INTERNATIONAL CONFLICT 281 (2nd ed. 1959); STONE, AGGRESSION AND WORLD ORDER
92-103 (1958); Higgins, The Legal Limits to the Use of Force by Sovereign States: United Nations Practice, 37 Brit.
'Y. B. of Int'l L. 299 (1961); Tucker's new section in KELSEN, PFINCIPLES OF INTERNATIONAL LAW
(Tucker ed. 2nd ed. 1966); O'Brien, Intemational Law and the Outbreak of War in the Middle East, 1967, 11
Orbis, 692-723 (1967).

8. O'BRIEN, n. 6, at 101-7, 112-14.

9. Id. at 114-17,

10. Id, at 102-12.

11. Id. at 102-12.

12. Id, at 114-17.

13. See BRIERLY, THE LAW OF NATIONS 36-40, 131-3 (Waldock ed. 6th ed. 1963).

14, Rosenau, The Concept of Intervention, 22]. of Int'l Aff. 165-76 (1968); Rosenau, Intervention as a Scientific
Concept and Postscript, in 2 THE VIETNAM WAR IN INTERNATIONAL LAW 979-1015 (1976); Moore,
Intervention: A Monochromatic Term for a Polychromatic Reality, in 2 THE VIETNAM WAR IN INTERNATIONAL
LAW 1061-88 (Falk ed. 1976); Vincent, Nonintervention and Intematicnal Order (1974).

15. See, for example, United Nations General Assembly Resolucion 2131 (XX), adopted December 21,
1965:

1, No State has the right to intervene, directly or indirectly, ferany reason whatever, in the internal
or external affairs of any other State. Consequently, armed intervention and all other forms of
interference or attempted threats against the personality of the S'ate or against its political, economic
and cultural elements, are condemned.

2. No State may use or encourage the use of economic, or any other type of measures to coerce
another State in order to obtain from the subordination of the exercise of its sovereign rights or to
secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or
tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime
of another State, or interfere in civil strife in another State.

See similar language in The Charter of the Organization of American States, Articles 15, 16 and 17, T.LA.S.
No, 2361.

16. HENKIN, HOW NATIONS BEHAVE 16, 115, 126, 134, 176-8, 182, 195, 198, 203-6, 232 (1979);
Farer, Hamessing Rogue Elephants: a Short Discourse of Intervention in Civil Strife, in 2 THE VIETNAM WAR AND
INTERNATIONAL LAW 1095-1102 (Falk ed. 1969); Moore, Interve:ition 1067-9 (1969).

17. LEWY, AMERICA IN VIETNAM, 15-41 (1978).

18. On grounds for intervention see: Moore, 6 A Digest of Intersational Law, 2-11 (1906); THOMAS &
THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 74-8, 79-97,
123-41, 215-40 (1956); HENKIN, HOW NATIONS BEHAVE 156-61 (1979).

19. Pro humanitarian intervention: Lillich, Forcible Self-Help by States to Protect Human Rights, 53 Towa L.
Rev. 325-51 (1967); Intervention to Protect Human Rights, 15 McGill Law Journal 205-19 (1969); Humanitarian
Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in LAW AND CIVIL WAR IN THE
MODERN WORLD 229-561 (Moore ed. 1974); McDougal & Reisman, Rhodesia and the United Nations: The
Laufialness of International Concems, 69.Am. J. Int'l L, 1-9 (1968).

Contra humanitarian intervention: Brownlie, Humanitarian Intervention, in LAW AND CIVIL WAR IN THE
MODERN WORLD 218-27 (Moore ed. 1974); Bowett, The Interrelation of Theories of Intervention and
Self-Defense, in LAW AND CIVIL WAR IN THE MODERN WORLD 38-50 (Moore ed. 1974); Franck &
Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 62 Am. J. Int'l L. 275-305
(1973).


20 Legal & Moral Constraints on Low-Intensity Conflict

of Africa. These conflicts may not always be of strategic importance to the United
States or even of marked significance to the fabric of international order, but in
the future they could be. An understanding of the peculiar nature of unconven-
tional warfare, the challenges it poses to liberal democracies, and its persistent
recurrence will be as useful in the future as it has been in the past.

Notes

1. KAUTILYA (Shamasastry trans, 4th ed. 1951).
BOZEMAN, POLITICS AND CULTURE IN INTERNATIONAL HISTORY 123 (1960).

BOZEMAN, THE FUTURE OF LAW IN A MULTICULTURAL WORLD 128 (1971).

SUN TZU, THE ART OF WAR 11 (Griffith trans. 1971).

Id, at 77-78.

14, at 82-83.

Td, at v-vi.

MACHIAVELLI, THE PRINCE (1947). Equally important are Machiavelli's Discourses,

STRAUSS, THOUGHTS ON MACHIAVELLI 9 (Bergin trans. 1958), For another interesting commen-
tary, see Norton, Machiavelli and the Modes of Terrorism, Modern Age 304-313 (1985).

10, See MATTINGLY, THE DEFEAT OF THE SPANISH ARMADA (1959); PADFIELD, ARMADA (1988);
MARTIN & PARKER, THE SPANISH ARMADA (1988).

11. ‘The more pessimistic strands within the Christian tradition, such as Augustinianism, have not been as
deeply absorbed within the contemporary ethos of liberal democracies as the pacifist, liberal ones that focus on
the Beatitudes and downplay the stark political realism implicit in the Pauline epistles.

12, See Kant’s essays on “Idea for a Universal History from a Cosmopolitan Point of View”, “An Old
Question Raised Again: Is the Human Race Constantly Progressing?”, and “Perpetual Peace” in KANT, ON
HISTORY (Beck ed. 1963). See also the discussions of the liberal tradition in international relations in WALTZ,
MAN, THE STATE AND WAR (1954); WOLFERS & MARTIN, THE ANGLO-AMERICAN TRADITION IN
FOREIGN AFFAIRS (1956).

13. See Hans Morgenthau’s trenchant refutation of the argument that capitalism causes wars in MORGEN-
‘THAU, POLITICS AMONG NATIONS 51-57 (5th ed. 1978),

14. Id. at 56.

15. The appeal, signed by representatives ofall the major religious groups and denominations in the United
States, was circulated by the James Madison Foundation (Washington, DC), and President Reagan presented
it personally to President Gorbachev at the Moscow summit of May 1988,

16. HOBBES, OF THE NATURAL CONDITION OF MANKIND AS CONCERNING THEIR FELICITY
AND MISERY, 102 (Oakeshott ed. 1968). “The passions that incline men to peace, are fear of death; desire of
such things as are necessary to commodious living; and a hope by their industry to obtain them.”

17. WISKEMANN, EUROPE OF THE DICTATORS 1919-1945 (1966); SHIRER, THE NIGHTMARE
‘YEARS 1930-1940 (1984).

18, On Hamilton's views, see WOLFERS & MARTIN, supran. 12 at 139-154; LANG, FOREIGN POLICY
IN THE EARLY REPUBLIC (1985); and Seabury, Moral Purpose and American Foreign Policy (unpublished paper
presented at a conference on Moral Purpose and American Foreign Policy sponsored by the New York-based
Center for Religion and Society at the Smithsonian Institution, Washington, DC, Feb. 20-22, 1987).

19, Seabury, op. cit., 2.

20, BOYLE, WORLD POLITICS AND INTERNATIONAL LAW 293-5 (1985).

21. This is one of the themes in TREVERTON, COVERT ACTION (1987).

22. See AREND, PURSUING A JUST AND DURABLE PEACE: JOHN FOSTER DULLES AND INTER-
NATIONAL ORGANIZATION (1988).

23, See the extended discussion in Schachter, Intemational Law in Theory and Practice V, Collected Courses
of the Hague Academy of Intemational Law 150-6 (1985).

24. SEABURY & MCDOUGALL, THE GRENADA PAPERS (1984); VALENTA & ELLISON, GRENADA
AND SOVIET-CUBAN POLICY: INTERNAL CRISIS AND U,S.~OECS INTERVENTION (1986).

25. Arthur, Grenada and East Caribbean Security 177 Conflict Studies 20 (1985).

26. For a careful study of the State Department's “White Paper” and of the highly politicized and biased
reaction to it by much of the media and Congress, see FALCOFF, SMALL COUNTRIES, LARGE ISSUES:
STUDIESIN U.S.-LATIN AMERICAN ASYMMETRIES 34-44 (Washington: American Enterprise Institute for
Public Policy Research, 1984).

PENAVeep



Johnson 165

deception or by means bad in themselves, it has many of the attributes of murder.
It may be argued that the two are not in fact the same, but they are enough alike
to create a general cultural suspicion of assassination.

For all these reasons, just war tradition has never explicitly taken the logic of
discrimination and proportionality to justify or imply assassination. Nor would I.
There is no reason to use this moral tradition to argue against the United States
legal proscription of assassination.

3. Covert vs. Overt Means: Destabilization vs. Use of Military Force
in Low-Intensity Conflict. Just war tradition is about the justification and
limits of the use of military force; covert means in the modern sense are largely
outside the purview of those who have contributed to its development. The use
of means mala in se or inadmissible deception, as discussed in the previous section,
are among the few cases where the tradition does touch on covert methods. But
in general there is no reason to read into just war reasoning any particular
preference for overt as opposed to covert forms of action. While covert actions
may be harder to judge because their purposes and means are kept secret, the
same conditions apply to both: the action in question must be justified by the
terms of the traditional jus ad bellum, and the means should conform to the terms
of the jus in bello.

These conditions do not define or justify any specific action; rather, they tend
to describe a range of actions ascending to the overt use of force, and then go on
to distinguish among the categories and degrees of force. The jus ad bellum
principles of proportionality and last resort are particularly interesting in this
regard, because they imply that it is possible for covert means to accomplish more
good while causing less harm than military action.

Destabilization is also morally attractive as an alternative to the use of force.
The problem here is not with the jus ad bellum conditions but with those that
consider the consequences of the means used. As shown by the economic
sanctions imposed on Iraq after the invasion of Kuwait, these means may depend
for their effect on the harm done to the populace in general, intentionally
targeting noncombatants. The use of military force in the case of the Gulf War,
as I have argued elsewhere, was morally preferable to slow economic strangu-
lation. Overt or covert support of indigenous insurgent groups raises another set
of issues. Moral deliberations are complicated by the fact that the concerns of
just war tradition must be judged to be satisfied both for the guerillas and for the
nation giving outside support. These concerns may quickly become tangled in
non-moral policy or prudential considerations as well. Indeed, the controversy
mounts less over fundamental moral questions such as just cause, than over
speculation as to whether the indigenous forces can succeed, how much help
they need, if it should be overt or covert and whether the policy will actually
improve matters. This is well illustrated by the debate in the United States over
aid to the Kurdish and Shiite rebellions in Iraq that followed the Gulf War. There


204 Legal & Moral Constraints on Low-intensity Conflict

47, See Parks, Crossing the Line, 112 Proceedings 964-80 (1986); O'BRIEN, LAW AND MORALITY IN
ISRAEL'S WAR WITH THE PLO 114-17 (1991).

48. See, eg., Bowett, supra note 46, at 29-30; Franck, Who Killed 2 (4)? or Changing Noms Goveming the
Use of Force by States, 64 Am. J. Int'l L, 809-837 (1970); Coll, The Limits of Global Consciousness and Legal
Absolutism: Protecting International Law from Some of ts Best Friends, 27 Harv. Int'1L. J. 599, 606-20 (1986); Arend,
Intemational Law and Recourse to Force: A Shift in Paradigms, 27 Stan. J. Int'l L., 1-47 (1991).


32 Legal & Moral Constraints on Low-Intensity Conflict

condemn out of hand United States actions in Grenada, Libya, and Nicaragua
(which presumably he believes were the “principal threats” to world order. Note
in this connection that the United States forces that were killed in the single
terrorist act of the bombing of the Marine barracks in Lebanon exceeded United
States casualties in all three of these criticized actions combined.). Professor
Henkin singles out and condemns these three U.S. actions, despite literature
supporting the lawfulness of United States actions in all three conflicts, in
respectively three sentences, two sentences and four sentences. Good technique,
Professor Henkin—one need not address the merits, factually or legally, of
positions contradicting one’s world view provided it can be said that the “alleged
grounds have been widely challenged” or “the legal justification ... was widely
rejected.”> Certainly no specific factual or legal reasons for one’s conclusions
should be given. Professor Henkin further goes on to bring this message home
to responses against terrorism—without differentiating whether such terrorism
constitutes a sporadic act or an ongoing and sustained low-intensity attack:

Noris interstate force the solution to the scourge of terrorism, or even a significant
deterrent to it. Little of contemporary terrorism is in fact perpetrated by States; too
many States condone it, but surely the law does not—ought not—permit the use
of military force against any State that does so. Even where a State is satisfied that
another State has in fact perpetrated an act of terrorism against its diplomatic
personnel, it is undesirable to permit the victim State to respond by military force
against the territory of the perpetrator. The exceptions in article 51 were limited
to cases of armed attack that are generally beyond doubt; a State’s responsibility
for acts of terrorism is rarely beyond doubt and difficult to prove to international
satisfaction. Article 51 gives a right of self-defense, a right to use necessary and
proportional force to defend against an armed attack. This right does not allow
retaliation for past attacks. The response in self-defense to an armed attack must
be necessary and proportional; an attack on the territory of a State perpetrating
terrorism cannot be a “proportional” response and can hardly be the “necessary”
response to defend against an act of terrorism already committed or even to deter
future terrorist acts. The international community must develop stronger deter-
mination and seek other remedies against terrorism. A State that has been the victim
of an act of terrorism will have to pursue other remedies against States that it
believes responsible and against the States that encourage, promote, condone, or
tolerate terrorism or provide a haven to terrorists.®

Professor Falk, who had widely condemned as illegal United States actions in
defending South Vietnam against North Vietnamese aggression, wrote an article
condemning as illegal the United States/Republic of Vietnam incursion into
Cambodia during the course of the Vietnam War despite use of Cambodian
sanctuaries by 40,000 regular North Vietnamese troops in attacks against
American and Republic of Vietnam forces in South Vietnam.”


Teson 101

agency relationship spurious, and thus the government cannot validly act on
behalf of the citizens of the State. Therefore, its international acts, and in
particular its coercive acts (such as war and low-intensity operations) are invalid
as acts of the State.

At first blush this seems counter-intuitive. Why can’t the illegitimate govern-
ment of A send a group of people to train and advise the combatants led by the
legitimate government of B in its fight against illiberal insurgents? Surely B can
use all the help it can get. However, this will not do. The reason is that the
government of A cannot validly order citizens of A to fight and perhaps risk their
lives in another State, even for a just cause! Because A’s is an illegitimate
government, it lacks the moral standing to be commander-in-chief. The “sub-
ordinates” do not have any duty to obey, and coercing them into fighting is
unjustified. Now any person has a right to join in a just war fought in another
State, if invited by the just warriors. So if people in A volunteer to join the just
counter-insurgency in B, they will be doing so in their private capacity. They
may not use the resources of the State, and they will not be representing the
State. The illegitimate government may not engage the people and the collective
resources of the State in any coercive action, war or low-intensity conflict.

Vi. State Sovereignty and Low-Intensity Conflict

The question whether a low-intensity operation violates the target State’s
sovereignty is answered by applying the principles suggested in the foregoing
discussion. Three cases are possible. First, the target State is fully legitimate (both
the State and the government are legitimate). Second, the target State rests upon
a valid horizontal contract, but the vertical contract is invalid, rendering the
government illegitimate. Finally, the target “State” does not rest upon a valid
horizontal social contract.

(a) Low-Intensity Operations Against a Fully Legitimate State

Assuming the justice of the cause and the absence of the other moral constraints
having to do with proportionality and modus operandi, an operation will still
violate the sovereignty of a target State if it is fully legitimate, i.e., if both the
horizontal and the vertical contracts are intact. There is one exception (more
apparent than real) to this principle: when the legitimate government of the target
State authorizes the operation, as is often the case in justified counter-insurgency.
Thus, for example, whether the U.S. efforts to help the government in El
Salvador are barred by sovereignty considerations, other things being equal,
depends on the legitimacy of the government. If it is illegitimate, helping it is
immoral. If the government is legitimate, the morality of the operation does not
depend on sovereignty considerations, because of the authorization. Recall,
however, that the other requirements have to be fulfilled; in particular, the cause


Moore 37

way.” This observer, for one, believes that the recent democratic revolution in
the Soviet Union probably resulted considerably more from influences stemming
from the Helsinki human rights engagement process than from the entire history
of U.S.—USSR arms control efforts. “Rule of law engagement” seeking to
influence governments to move toward democratic principles will not be an
overnight process. In this respect, a shift is already under way in US. foreign
policy to encompass rule of law engagement, but requires even greater
emphasis.”

B. The United States, in coordination with other democratic nations, must
seek to greatly reinvigorate international condemnation of aggressive attack,
whether overt or covert, and simultaneously must work to greatly reinvigorate
the right of and support for defense against such aggression. These principles, if
we make them twin core principles of democratic nations’ foreign policy, have
considerable ability to add to deterrence against aggression.

C. Inconnection with strengthening the international system against aggression
and in support of defense against aggression, we must apply these principles clearly
to the low- and mid-intensity conflict spectrum. We must redouble efforts to
condemn terrorism, hostage-taking, and aggressive indirect warfare and to
support the full range of proportional defensive responses, overt and covert,
against low-intensity and indirect aggression.

D. A few illustrative initiatives that might be taken internationally in support
of the above goals include the following:

(1) The United States should consider creating a rule of law caucusing group
within the United Nations system, gathering together nations from all regional
groups which are prepared to support the above objectives. The purpose of this
group would be to serve as a focal point within the United Nations system to move
the UN system, and the whole world, toward recognition of the importance of
the rule of law nationally and internationally.

(2) The United States should coordinate with its allies to issue a statement
repudiating the upside down majority opinion of the International Court of Justice
in the Nicaragua case, giving reasons as to why that decision, although well-mean-
ing, actually encourages aggression in the real world.

(3) The United States should seek to coordinate common democratic nation
“white papers” exposing radical regime campaigns of low-intensity conflict,
including attempted governmental takeovers, hostage seizures, and terrorism that
is directed against civil aviation and other targets.

(4) The United States should initiate a serious international effort to explore ways
to meaningfully encourage deterrence applied at a personal level to regime elites
engaged in international aggression, whether low-intensity or high-intensity. An
effort at holding war crimes trials for Saddam Hussein is one example of seeking
to apply personal-level deterrence. Deterrence of aggression must include deter-
rence of regime elites, particularly in radical regime settings. We have for too long
focused on deterrence against a nation as an undifferentiated totality. To the extent


188 Legal & Moral Constraints on Low-Intensity Conflict

as important as issues of just cause and comparative justice, to be discussed
presently. Coerced popular support revolutionary activity is a reason to support
counterinsurgency measures. However, if, as a practical matter, the insurgents
have sufficient control of the population to carry out their operations, their
authority may be unjust but it is effective.

By far the most usual U.S. low-intensity conflict operations have been in
support of counterinsurgency rather than insurgency. Here, the issue of
competent authority in the incumbent regime is critical. Intervention by
invitation requires a government with the legitimacy to invite external
assistance. This was a major issue in the Vietnam War when critics charged
that the Saigon regime was illegitimate, corrupt, unrepresentative and an
American puppet. Indeed, Michael Walzer argued that the very fact that
South Vietnam needed the United States to survive proved that its govern-
ment lacked competent authority.”

In dealing with this issue it is necessary to set a very different standard for
judging competent authority than in the case of a well-established State and its
government. The typical State that suffers from civil war and external interven-
tion is already precarious. It is often engaged in “nation building.” Nation
building is difficult enough. Add to it the necessity for a regime in an undeveloped
State to fight a civil war, usually one that is supported or even controlled by an
external power, and you have a situation wherein maintenance of competent
authority is very difficult.

Accordingly, the competent authority issue in counterinsurgency must be
analyzed with full recognition of the dilemmas of the incumbent regime.
Insistence on democratic reforms and the rule of law must be balanced with
acknowledgment of the security requirements of wartime. In the final analysis,
judgments must be made, when intervention is contemplated, initiated and
continued, whether the incumbent government is potentially capable of emerg-
ing from the war willing and able to develop a democratic, just regime.

Additionally, just war doctrine would give weight to other criteria such as the
status of the regime in international law and diplomacy. If, as was the case with
South Vietnam, the regime governs a State recognized by others, accepted in
international conferences and generally treated as an international person, the
presumption will usually be that it has competent authority to invite external
intervention. This is especially true in cases of counterintervention in response
to antecedent intervention on behalf of insurgents.”*

In considering issues of competent authority it is important to recognize that
they are not solely matters of morality or law. They are eminently important in
political-military terms. If military intervention is to be carried out in a revolu-
tionary war, the credentials of the party to be assisted are obviously critical in
estimating the probability of success and proportionality of the enterprise. Indeed,


122 Legal & Moral Constraints on Low-Intensity Conflict

tules and then you're entitled to do something. Some of us, particularly at the
New Haven school, tend to view law as a process of making decisions in which
there is a constant reference to concerns for minimum order in the larger
community that shapes policies in each instance to the appropriate response. But,
perhaps, some of you have observed this commonality and may think that there
is a different way of approaching the issue.

Professor Turner raises some very interesting and provocative points and
Professor Farer definitely has engaged them, I think making them quite explicit.
The first is the issue of reciprocity, which Professor Farer said that Bob Turner
has presented in a rather formalistic fashion. I actually find their position on this
issue quite consistent. I think the first line of inquiry we might take is to consider
to what extent the United States actually operates on the basis of reciprocity.
Does it have special responsibilities precisely because of its greater strength, and
the extent to which it is a leader of allies that are 2 community of nations sharing
a certain vision of public order? Do we have special responsibilities that require
or permit us on occasion to initiate changes in law? For example, we refashioned
the international securities market by insisting that jurisdiction be respected until
a bilateral or multilateral agreement providing some degree of control over this
truly international market could be achieved.

The second point that relates to this is the question of our responsibilities as
aleader, which Professor Turner drew attention to. This necessarily assumes that
our factual view of what is correct is shared by other members of the community
that is identified with us, and hopefully, by other substantial parts of the planet.
Both speakers address this problem in different contexts. Professor Turner
assumed that everyone thinks we are the good guys for insisting that Libya deliver
the agents who may have been involved in the destruction of Pan Am Flight
103. I’m not sure that we are perceived that way. Next week the International
Court of Justice will respond to Libya’s request for interim measures and, as a
lawyer, I know you never make predictions about what courts are going to do.
I think that there could be some surprises in this,

On the other hand, Professor Farer draws attention to the discrepant views of
Arabs as to what United States behavior has precipitated in the Middle East. This
raises the question to what extent one can operate unilaterally. Can one
effectively test whether one’s view is askew or faithful to reality, or whether it
simply represents the best interests of the community?

Both Professor Turner and Professor Farer focused on countries and on
governments. At the very end of his remarks, Professor Turner, in discussing
assassination, I think, disaggregated the general notion of Iraq. Were we at war
with the entire country or with the Ba’ath party? Quite different strategic
implications flow from that distinction. We may want to consider the extent to
which such actions would disaggregate States, and begin to look at structures
within them.


296 Legal & Moral Constraints on Low-Intensity Conflict

treaties. That’s the way it’s supposed to work, You’re supposed to stand firm and
take your licks in this government, or the President is being ill-served.

Now, turning to the other point you made about the Security Council. I think
that’s very, very important. Perhaps I overstated my position. I certainly was not
trying to suggest that every delay is unacceptable. In fact, overall, I think we have
to live with these delays. I do mean to say in national security affairs that time
can be everything and is very, very important. You ask, “what difference does
it make as long as we get those two guys?” I rejoin, “does it make any difference
if we do get the two guys?” If you were concerned about deterring acts of terror
such as the destruction of Pan Am Flight 103, you might well conclude that what
we are doing has absolutely nothing to do with the deterrence of national security
threats. Now, we may be creating a very important precedent in multilateral
cooperation and it’s one that I support. But the facts of the matter are that Libya
may not be the only State involved in this issue, that these two individuals
certainly did not act without authorization, and this whole process is focusing us
on what we, in the national security community know are expendable soldiers.
This is equivalent, in a military context, to going after two guys who were in a
commando squad that raided one of your cities and killed hundreds of civilians,
instead of going after the political leadership of the country responsible for doing
it. In a very real sense, that’s what we’re doing. When you take the legal option,
you have to face the fact that you have largely given up what have traditionally
been regarded as appropriate and effective methods for dealing with a national
security problem and that’s a very, very big price to pay. We have to figure out
‘ways to make these governments pay. Otherwise who cares if these two guys get
killed somewhere, or go plead guilty, spend the rest of their lives in jail and have
their families taken care of? Every State has the capacity to develop people willing
to die for it, or to spend years in prison for it, in exchange for appropriate rewards.

RADM HARLOW: Did you have a comment?

MR. deGRAFFENREID: Yes, I had one comment, perhaps disagreeing a
little bit with Abe on the congressional oversight and agreeing more with you,
Tom. I happen to think, having been on both sides of it, that Congress should
have a more substantial role in the policy dimensions of covert action and other
low-intensity conflict issues than the Executive Branch would want them to
have. I think the oversight process is a proper one and has produced the
accountability that American covert action policy lacked. In practice it has,
however, been a very imperfect process. In the area of low-intensity conflict, in
covert action, because it’s secret, the relative velue of one senator or repre-
sentative goes up enormously. He can kill a program by leaking it. I think that
lure has proven very attractive to certain members, and that has corrupted the
process.


Moore 33

Professor Jordan Paust condemned as illegal President Ford’s actions in the

Mayaguez seizure, arguing: “. . . the American response was wholly dispropor-
tionate to the Cambodian action — an action that was, moreover, lawful.”*

Professor Francis Boyle has written widely condemning most United States and
Israeli uses of force in recent years. Barely do his writings focus on the pattern of
low-intensity aggressive attack triggering some of these actions. When Israeli troops
went into Lebanon to stop persistent and ongoing terrorist attacks against Israel (not
just threatened future attacks) Boyle said that “even assuming the contemporary
international legal order still recognizes the regressive doctrine of preemptive
self-defense, the Israeli invasion of Lebanon fails to meet that test as well.” And
when the United States sought to deter Libyan terrorism (and extreme oceans claims)
by sending ships of the Sixth Fleet into international waters in the Gulf of Sidra
where they had every right to be under international law in both peace and war,
Boyle declared the U.S. action a breach of the peace under Article 39, and a threat
of force in violation of Article 2(4) of the U.N. Charter.'®

Specific constraints catalogued by the author that have been urged on the
customary law right of defense over the past several decades include the
following, among others:

* interpretation of Article 51 of the Charter as limiting the customary law right
of defense, particularly arguments that it prevents “anticipatory defense” or defense
against action other than a brazen assault;

* arguments that the right of defense does not include response against the
territory of a State that is providing major assistance to or directing “indirect”
aggression or secret warfare;

© arguments that “proportionality” requirements prevent a response against the
territory of a State engaged in continuing low-intensity aggression;

* arguments that effective military responses (whether in the Mayaguez case, the
Gulf conflict or the Central American conflict) are disproportional;

© arguments that the right of defense under Article 51 ceases once an issue has
been referred to the Security Council for action;

* arguments that if'a collective defense action does not immediately respond to an
armed attack (for example it delays three months for a necessary military build-up
and an effort at peacemaking) that the right is lost;

* arguments that an occupied country has no one that can lawfully request
collective defense assistance on their behalf following a successful blitzkrieg attack;

* arguments that the right of defense in settings of civil conflict (even in the face
of illegal assistance to insurgents) should not permit direct involvement of foreign
nationals in the defensive military effort on behalf of the Government; and

* arguments that the right of defense under Article 51 of the Charter does not
include a right to require unconditional surrender and alter the government in a
post-war setting (a restriction that would have come as a shock to the Allies in


386 Index
U

Uganda, “evidence” of humanitarian intervention in, 228
“Unclean hands” doctrine affecting equitable relief, 51
Unconventional warfare: See Low intensity conflict
Unilateral responses to aggression
See also Multilateral responses to aggression
limits placed on by intemnational organizations, 213
self-defense matters: See Selé-defense
Unipolarity, need for explanation of, 255-256
United Nations
‘Charter oft See Charter of United Nations
Gulf War, Security Council's role in: See Gulf War
history, 28
limitations on use of, xvii
post-cold war state of, 254
“zeasonable” self-defense interpretations, 183-184
“reinvigoration” of, effect, 159-160, 168, 284, 299, 311-312
Security Council: See Security Council of United Nations
United States
See also more specific topics
checks and balances: See Balance of power
history of America, effect on American character, 287-288
legal and moral thought on war and policymaking, 151-154, 292-293
political and cultural constraints on limited warfare, 249-322
post-cold war world, moral-cultural environment in, 251-264
reformist zeal in American character, 248
Universities: See Educational institutions
Usage and custom, restrictions imposed on sovereignty, 57-58
U-2 spy planes, civilian pilot used in, 276
USSR: See Soviet Union
Usilitarian realism, 93-94
critique, 94-96
national interest, what constitutes, 97

Vv

Values: See Moral justification and morality
Vance, Cyrus, view of covert activities as last resort, 331
Vattel, Emerich de Vattell, 184
‘Vengeance: See Right intention
Vertical social contracts
defined, 91
intervention, act of, 139-140
sovereignty, justification of, 99-100
‘Vienna Convention, 284
Vietnam
antiwar movement, contemporary effects of, 266, 270
Cambodian involvement: See Cambodia
“deceptive peasant,” fear of, 166-167
invitation, criteria under jus ad bellum for intervention by
188
low-intensity conflict, defined by Joint Chief of Staff, 160-161
“mixed” conflict, nature of, xv
My Lai, effect of absence of discipline in field, 238
North Korea, distinguished, 185
proportionality doctrine applied to, 275


O'Brien 199

could not be justified after a searching calculation of proportionality of probable
means and consequences and outcomes.

I conclude that the contemporary international war-decision law purporting
to outlaw counterterrorist attacks on terrorist sanctuaries and launching pads is
bankrupt. It needs to be replaced by a new understanding of self-defense in a
world in which terrorism is a major security problem, Just war doctrine can be
useful in developing this more realistic understanding of self-defense.

Just War Doctrine Applied: The International Drug Trade

The international drug trade is a great evil in many ways. It supplies millions
of drug addicts around the world, leading to sickness and death, crime, social
dislocation and corruption. The international drug trade may very well inflict
more human suffering than wars and violent revolution. The question is whether
just war doctrine, developed to deal with recourse to and conduct of armed
coercion, is relevant to the challenge of suppressing the international drug trade.

This is an entirely new problem for just war doctrine. There are no precedents
in the doctrine for taking on a subject of this kind. In approaching it, I suggest
that it be broken down into two parts. The first is that part of the international
drug trade that operates primarily as a business, albeit a criminal business. The
second is that part of the international drug trade that is closely linked to and
sometimes an instrument of political movements or even established govern-
ments.

The second case seems less difficult to approach through just war doctrine. If,
for example, the United States wants to provide military assistance to the
government of Peru to subdue the Shining Path movement and, as part of that
undertaking, participate in attacks on those who produce and export drugs in
order to support the Shining Path insurgents, just war analysis might well justify
the anti-drug component in counterinsurgent strategy as part of the overall effort
to defeat the insurgents. Without going through that analysis I can see, for
example, that the Shining Path insurgents would fail the test of comparative
justice.

To be sure, there would be some serious questions about likely measures such
as destruction of crops destined for the production of drugs. Consideration would
have to be given to the economic and social effects of such destruction in areas
controlled by the Shining Path insurgents. A kind of scorched earth policy might
not pass the principles of proportion and discrimination. Nevertheless, as long as
the war on drugs would be part ofan overall just counterinsurgency war, it could
very well receive the support of just war analysts.

The first and greater part of the international drug trade is more problematic.
As a business it may exchange services with unjust insurgents and governments,
but its main function is profit, not the triumph of unjust insurgents and


Panel Discussion 285

clear that this process is potentially available to respond to low-intensity conflict.
The Council has recently adopted a resolution that will impose economic
sanctions against Libya under Article 41 for failing to turn over the two agents
indicted for blowing up Pan Am Flight 103. These extraordinary developments
have created serious complications and grave risks for national security planners.
Having once resorted to the Security Council to deal with Iraq, and now Libya,
the U.S. will be under constant pressure to report all acts of aggression to the
UN. The U.S. will not, moreover, always have its way in the Council; four
other States have the veto, and clear-cut decisions can be avoided where a large
enough number of States want no clear result. Furthermore, in issues concerning
national security, timing can be everything. Over six months went by before Iraq
was pushed out of Kuwait, by which time that country was raped. Relying on
Jaw enforcement to punish Libya for the Pan Am Flight 103 bombing has already
taken over three years, and the process of forcing the surrender of the two
indicted agents could take months, and might never succeed. Once the Council
refuses to accept a measure sought by the U.S., it will be difficult to act
unilaterally, irrespective of how many times or how clearly that right is asserted.

Finally, the Security Council is far less predictable than unilateral action. The
process that is taking place in the effort to obtain custody of the Libyan agents is
ample proof of this. Libya has taken the U.S. and the U.K. to the International
Court of Justice to derail their plan, and it may succeed in obtaining from the
I.CJJ. at least enough to undermine our political leverage in the Security Council,

So, what should be done about the U.N.? In some respects, we have little
choice. We have committed ourselves to develop the potential of the U.N.
Security Council to perform its intended role in governing international security.
My own view is that we should try to succeed, even as we retain at least a fig
leaf of the right, the theoretical right, to act unilaterally if the Council fails to
protect some fundamental interest. By this, I mean much more than using the
Council as a highly visible vehicle to serve U.S. interests. We should take very
seriously the creation ofa U.N. force, as well as its use in low-intensity conflicts.
Some interesting advantages could flow from such expanded use, not the least
of which would be the Council’s relative freedom from constraint by our own
domestic institutions.

In conclusion, let me assure you that I take very seriously the notions discussed
yesterday about just wars and morally-driven interventions. I recognize that
international law is not, and cannot be, morally neutral. Also, I fully agree that
these matters of moral justification should be a part of a sound international
lawyer's analytic framework in evaluating low-intensity warfare. Nonetheless,
my view of the lawyer’s role in such issues requires a high degree of restraint in
pushing any point of view other than those that are very widely accepted. Lawyers
and law are already too often relegated to subordinate roles in which they are
seldom heard, even on the strictly legal issues. Lawyers need to restore their


O'Brien 193

that military actions be proportionate to a legitimate military purpose. Whereas
the war-decision requirement of proportion is at the grand strategic level of raison
d’etat, the war-conduct requirement of proportion is at the strategic and tactical
levels of military necessity or raison de guerre.

In positive international law, military necessity is judged entirely in the context
of the military situation. The greater political-military issues of the war are not
considered. There is a sharp isolation of war-conduct law from war-decision law.
In just war doctrine there is a definite relation between the principles of
proportion in war-decision and war-conduct law. This means that propor-
tionality is subject to two levels of judgment. First, was the military measure
proportionate to the military objective? Second, what was the effect of the
military measure on the ultimate objectives of the war? A single decision as to
the proportionality of a measure of military necessity may not make much
difference to the grand strategic picture, but a pattern of measures, an accumula-
tion of decisions justified by military necessity, may be at odds with the overall
achievement of the just cause at proportionate cost.

To be sure, a tactical or even a strategic commander may not be able to judge
the implications of his actions for the broader outcome of the war. But higher
political-military decision-makers and commanders should control as far as
possible the actions of subordinates in the chain-of-command so as to limit
decisions of military necessity that are counterproductive from the standpoint of
grand strategy and war-decision law. Although American commanders on the
ground understandably chafed at the orders that forbade them to go north of the
Yalu during the Korean War or cross into Cambodia in the Vietnam conflict,
the need to avoid an open war with communist China was perceived by policy
makers at the time to be sufficiently important to offset the immediate military
disadvantages of allowing our enemies these sanctuaries.

It should be recalled that the normative principle of proportion is closely
related to the military principle of economy of. force.”? Its application must be
judged primarily on a military concept of “reasonableness,” viz., was the action
consonant with good military practice?

Discrimination. The just war principle of discrimination, or noncombatant
immunity, is understood by the United States to be manifest in the international
law of war in the form of the principle of humanity.° The principle of
discrimination prohibits direct intentional attacks on noncombatants and civilian
targets. Most just war analysts consider this principle to be absolute but they are
able to reconcile it with the indiscriminate propensities of modern war at all levels
by invoking some version of the principle of double effect.*! I take a different
approach, I contend that the principle of discrimination, while extremely
important is not absolute. Rather, it is a principle that requires that civilian
damage be proportionate to the military advantage gained by a military measure.


Roundtable Discussion 319

with by somebody in the government. That’s the drug problem. As I understood
the Admiral, he argued that the use of force by the United States against narcotics
traffickers in foreign countries would constitute a legitimate exercise of self-
defense under Article 51 of the U.N. Charter if it could be proven that their
operations were State-sponsored.

This position has a drawback that I tried to raise in my paper. Many of the
old treaties that outlawed drugs also outlawed alcohol. Smuggling liquor does
not involve a use of force as I see it. If it is self-defense for the United States to
use force to combat a trade conducted by the agents ofa foreign State that extends
from their shores into our streets, then it is surely to be expected that the principle
of reciprocity would give a foreign power such as Iraq the right under the Charter
to fight the liquor trade at its point of origin in the United States. Alcoholic
beverages are as offensive to the Islamic faithful as cocaine is to us. In other words,
I’m really worried about taking Article 51 into the drug business. If foreign drug
traffickers come onto our soil with narcotics or firearms, we can arrest them. But
the view that it is a legitimate exercise of self-defense for us to attack residents
of other countries who have initiated transactions in which Americans voluntarily
engage, seems to me both unsupportable and dangerous. Nevertheless, the drug
trade continues to be a considerable threat to our security and we must continue
to think of ways to fight it.

PROF. COLL: Thank you.
Father Winters.

FR. WINTERS: I’d just like to raise two questions that I think might be useful
as a focus for a part of your book on the symposium and this desire has been
sharpened somewhat by Professor Farer’s questions.

My first question is this: Do we as a group feel, and does the U.S. Government
take the position, that our nation should remain open to the possibility of
overturning governments in the name of justice?

Now my own view, which you may already have predicted, is that there are
three reasons why we should not remain open to that possibility. We should not
be in the business of overturning governments, first of all, because it is contrary
to the fundamental value of order, which should be irreplaceable in international
affairs. Secondly, it breaks, as Professor Reisman said, a very long tradition of
collaborative understanding of the operative principles of international relations,
which includes sovereignty. Third, as Michael also observed, the record of success
in overturning governments is not all that good.

My second question is whether we should continue to commit ourselves to
the possibility of helping governments resist insurgencies. Certainly international
law seems to allow that and, perhaps, to encourage it. Just war tradition certainly
allows it and is believed by many people to encourage it. I’ve always felt that it


200 Legal & Moral Constraints on Low-intensity Conflict

governments. In this sense, the commercial international drug trade is far more
of a threat than is the drug activity employed by particular insurgents or
governments in an instrumental fashion. This threat requires unprecedented
international cooperation of a number of kinds. Some of this cooperation takes
the form of use of the military as well as the police of a number of countries.

From the standpoint of international law, the key questions concern sover-
eignty and jurisdiction. In principle, any form of military intervention or
intervention with police or undercover agents should be on the basis of invitation
by the territorial sovereign. Suggestions that uninvited intervention could be
justified on theories of extraterritorial jurisdiction have rightly been viewed
skeptically. Before a State starts sending uninvited agents to make arrests (“‘ir-
regular recovery”) or perhaps executes drug dealers in another State, it is well to
consider the prospect of being visited with similar uninvited agents.

Ifjust war doctrine is to contribute to the formulation of morally acceptable
policies for using armed coercion against the international drug trade, it will first
have to establish that the evil of the drug trade is equivalent to the evil of
aggression and unjust oppression. War is an extreme remedy and should be
employed only against the threat of aggressive war or some other comparable
evil. What would be needed to respond to the challenge of the international drug
trade would be a full scale just war analysis in which the evil of the trade would
be established, the relevance and probable utility of military coercion directed
against it projected, and the probable costs and consequences of employing
military coercion estimated. This analysis would also have to include a just war
evaluation of the proportionality of recourse to armed force against the principal
regions from which the international drug trade operates, as well as an evaluation
of the effects of such a concentrated effort in one area on the trade in others.
Thus, it would be necessary to recognize that a massive effort, including use of
armed coercion, in Latin America might suppress the drug trade there at
enormous cost only to have the trade spring up iramediately in Africa or Asia.

This has been an exploratory voyage in uncharted waters. It is now time to
try to develop some charts. The best way to go about this would be for specialists
to develop case studies of the principal branches of the international drug trade
and its relation to corrupt governments and revolutionary movements, The
studies should be presented to just war analysts along with plans for the use of
force against the trade. The analysts could then evaluate the possible role ofarmed
intervention in specific cases on the basis of the just war criteria.

Conclusions

This paper has undertaken to evaluate the state of contemporary international
law regulating recourse to armed force, including armed intervention. It has
concluded that this body of law is at present inadequate as a normative guide to


62 Legal & Moral Constraints on Low-Intensity Conflict

This would seem to be sufficiently all-encompassing to satisfy anyone; but, in
the end, this definition was rejected by a vote of 7 to 3, because it was considered
“dangerously restrictive” and not “comprehensive” enough.®

The United States was one of several countries that was very wary of trying
to write a definition of “aggression,” out of fear that it would inadvertently
include some loophole allowing aggressive uses of force. President Truman
explained the traditional American view:

At the San Francisco Conference on International Organization (1945) there was
a movement to insert a definition of aggression in the United Nations Charter.
The United States opposed this proposal. It took the position that a definition of
aggression cannot be so comprehensive as to include all cases of aggression and
cannot take into account the various circumstances which might enter into the
determination of aggression in a particular case. Any definition of aggression is a
trap for the innocent and an invitation to the guilty. The United States position
prevailed at San Francisco, and the Charter adopted a system whereby the
appropriate U.N. organ, in the first instance the Security Council, would deter-
mine on the basis of the facts of a particular case whether aggression has taken
place.

In addition to uses of force authorized by the Security Council and certain
narrow exceptions (like using force to suppress piracy or the slave-trade), the one
remaining area of lawful use of force by individual States is self-defense.

Scope Of The Right To Self-Defense

It is universally recognized that a State may take some actions which would
otherwise violate the rights of another State if it must safeguard itself from the
latter’s wrongful conduct. Depending upon the nature of the initial wrongful
act, the response is classified as a retorsion, a reprisal,” self-help, self-defense,
or by other similar terms. The doctrine of “selfpreservation” or “self-defense”
dates back to the earliest days of the law of nations, and is recognized as a
pre-existing “inherent right” of States by the U.N. Charter.”

Indeed, there is no more fundamental right of sovereign States than the right
to exist”!; and this right forms the foundation of the right of States to defend
themselves from the wrongful conduct of other states. Initially, of course, the
“right” of States to exist was largely predicated upon their ability to exist in a
balance-of-power world. Until the twentieth century, States also had a sovereign
right to engage in armed aggression, and a State unwilling or unable to defend
itself might quickly cease to exist.

When the world community first sought to “outlaw” war through the 1928
Kellogg-Briand Treaty, the right of self-defense was carefully preserved. On 23
June 1928, the United States delivered notes to the principal foreign offices of
the world stating:


338 Legal & Moral Constraints on Low-intensity Conflict

such a game . . . If the United States is to survive, long-standing American
concepts of fair play must be reconsidered. We must . . . learn to subvert, sabotage
and destroy our enemies by more clever, more sophisticated and more effective
methods than those used against us. It may be necessary that the American people
be acquainted with, understand and support this fundamentally repugnant policy.”

Although this was the view of one individual, or more accurately one “Special
Study Group,” several critics have argued that the “Doolittle standard,” or an
approximation of it, came to serve as the rationale for the use of covert action
by American Presidents. For example, the Cold War historian, John Lewis
Gaddis, traces this policy back to 1950 and the formulation of NSC-68. He argues
that “for roughly the next two decades this doctrine—perhaps we should call it
moral relativism—held sway.” While noting that “the men who espoused
jt... were, for the most part, men of good will”, nevertheless, “in the end all
of them came to the view . . . that in periods of mortal peril these standards
[democratic values] could not be allowed to stand in the way of whatever seemed
required to defend the national interest.” Gaddis points to covert action as
epitomizing what he believes is the essential message of NSC-68: “moral
compromises” ” had to become “more or less standard procedure” to meet the
threat.©° Treverton refers to this as the “If-They-Can-Do-It-So-Can-We”
principle.>!

Even though during the two decades following NSC 68 there was a consensus
in the United States over the need to employ covert action in conjunction with
other policy instruments to contain the Soviet Union, an examination of the
period raises doubts about the assertion that all U.S. covert operations were based
solely on the “Doolittle standard”, Gaddis’s “moral relativism”, or Treverton’s
“IfThey-Can-Do-It-So-Can-We” principle. In fact, several covert actions were
in support of policies that arguably sought to D promote independence, self-deter-
mination, pluralism, and democratic norms.”” In other words, covert action was
neither a substitute for policy nor was it based solely on the principles of realism.
In several instances, it was part of a larger policy that sought to blend strategic
interests and American norms.

Are Covert Action and Democratic Values Theoretically
Reconcilable ?

On what grounds might an American President consider the use of covert
action as an instrument of statecraft? Is there a Place for it in American
should first consider the dimensions of this statesmanship. A modern definition
of statesmanship holds that it “involves . . . an ability to act competently and
confidently in the world without damaging the integrity ofa nation’s character
and principles.”°


288 Legal & Moral Constraints on Low-Intensity Conflict

in which the spirit of jealousy and ferocity, which had in the past been
characteristic of world politics, would give way to the dictates of reason and
humanity, so that force would no longer be the prime arbiter of international
quarrels,”

Even those Founding Fathers with a greater reputation for realism such as
Alexander Hamilton, shared this vision, calling the American experience, “The
cause of virtue and of mankind.” Said Hamilton, “The world has its eye on
America. The noble struggle we have made in the cause of liberty has occasion
to kindle revolution and human sentiment. The influence of our example has
penetrated the gloomy regions of despotism and has pointed the way to inquiries
which may shape the deepest foundations of the world.” This sounds a little bit
like the kind of discussion we were having here about the spread of democracy
in the closing decades of the twentieth century. My point is simply that this
tradition remains in place 200 years later. I think that any look at foreign policy
debates today and during the Cold War period will find that they have been
couched in unambiguously moral terms regardless of political orientation. That's
one tradition.

The other tradition, not unrelated to the first, has to do with how Americans
view war. Our virtually unique understanding of the dichotomous states of war
and peace has been well dissected by scholars and practitioners alike. American
thinking rejects the Clausewitzian continuum between peace and war. We view
peace as the normal state of international relations; war as an aberration. The use
of force in international affairs is to be avoided, but when war does come, it is
seen as the result of some overwhelming evil. Political considerations are then
to be set aside, and military victory obtained as quickly as possible so that the
world may return to peaceful normalcy. In sum, the U.S. view of war is ultimately
concerned with moral justification. War is considered to be an irrational act of
evil leaders or nations. These views combine with the aversion to power politics,
evidenced in those few quotes from the Founding Fathers, and probably shared
by the vast majority of Americans. You will see quickly, of course, that the world
oflow-intensity conflict with limited ends and limited means, which nevertheless
puts American lives in harm’s way, runs counter to the tradition I have just
characterized. Even a cursory examination of the types of conflict in which the
United States has engaged since the beginning of the Cold War shows that the
lower or gray end of the conflict spectrum has given us particular difficulty.

Let me now say a few things about our moral difficulties with low-intensity
conflict. First, and this is something Alberto Coll mentioned last evening, is the
issue of means. I think the perception is not unfounded that the means of much
of what passes for activities in the low-intensity area are, in fact, dirty tricks, not
in keeping with the highest American ideals; not in keeping with the kind of
virtue that was referred to yesterday. So, I believe “means” is one area in which
low-intensity conflict is foreign to the American tradition.


72 Legal & Moral Constraints on Low-Intensity Conflict

but the better view, in my opinion, is that force may only be used when
“necessary” (that is, when peaceful means of dispute resolution have been
exhausted or when it is evident that such measures would not work and further
delays may jeopardize the lives or safety of the individuals involved).

Force will only be lawful as a last resort and under circumstances where there
is a genuine and justifiable fear that harm may come to the citizens if prompt
action is not taken. This remains an area of great controversy, and questionable
uses of force in this area are likely to be denounced not only by much of the
world but by a diverse group of Americans as well. Indeed, ifthis power is abused,
a situation might even develop in which foreign governments refuse to allow
Americans to enter their territory for fear of providing justification for such
intervention. Like all lawful self-defense rights, the power to protect endangered
Americans abroad is important and should not be abused.

The Problem of the Innocent or
Inattentive Host State

It is not difficult to justify a necessary and proportional defensive response to
aggression ordered or encouraged by a foreign State. A more difficult situation
exists when the State claims sovereignty over territory that is being used by groups
or individuals who are not its agents as a base for terrorist attacks or other acts of
force against foreign countries.

This is not a new problem. Indeed, the classic 1837 case of the steamer Caroline,
which will be discussed below,” involved an attack by Canadian militiamen
upon a U.S. owned steamer docked on the American side of the Niagara River
which was being used to transport men and equipment to support an insurgency
in Canada. Professor Brierly notes that the Canadians justified their attack on the
steamer on the grounds that “[t]he American Government had shown itself
unable or unwilling to prevent this traffic...”

In 1916 the United States sent a column of cavalry across the Rio Grande in
hot pursuit of Francisco “Pancho” Villa, who had fled across the border to the
safety of Mexico following one of numerous attacks into the United States.
Mexico was in a state of civil war and did not take effective steps to prevent the
use of Mexican territory to launch armed attacks against the United States.
Reasoning that the failure of the Government of Mexico to put an end to the
raids from Mexican territory justified a U.S. defensive response, the United States
simply notified the Mexican President and made no request for permission.1°!

Half a century later, when hundreds of thousands of U.S. forces had been
deployed to help defend South Vietnam, a similar problem arose in connection
with North Vietnamese and Viet Cong sanctuaries inside “neutral” Cambodia.
The territory in question was largely uninhabited prior to the infiltration of
communist forces, and when the United States began secretly to bomb parts of


Moore 27

debate in the search for truth. In my judgment, we are urgently in need of “new
thinking” in this area and the real control of low-intensity aggression awaits a
broader understanding ofa new paradigm. I hope that this paper will at least serve
to begin the “new thinking” about the role of law in deterring low-intensity
(and high-intensity) aggression even as it is certain to raise the decibel level of
the debate.

The simple but important message presented in this paper is that widely held
models about the origins and control of violent conflict between nations,
including the low-intensity conflict spectrum, are themselves part of the problem
in the continuation of such violent conflict. These models are a part of the
problem in so far as they lead to a focus on policies that in the real world fail to
add to deterrence of the aggressive use of force and, conversely, lead to an
avoidance of policies that can make a more substantial contribution to peace.

The central symptom of this problem in the international legal system, as it is
presently applied, is the system’s all too frequent failure to systematically and
strongly condemn the aggressive use of force, particularly in the low-intensity
conflict spectrum, while simultaneously and perversely condemning and con-
straining the use of defensive force in response to such aggression. The net effect
in such settings is that the international legal system’s contribution to the
deterrence of aggression, particularly in the low-intensity conflict spectrum, is
virtually zero. Thus, as widely applied, the legal system needlessly becomes largely
irrelevant in dealing with a central challenge of our age.

Indeed, in some settings, conventional wisdom, with the best of intentions
and the worst of consequences, on balance has actually aided aggression, thus
turning the legal system upside down. It is as though the international legal system.
itself were suffering from a severe auto-immune disorder that has turned on its
own defenses to aggression. Fortunately, the cure for the auto-immune disorder,
if not to the virus of aggression itself, is relatively simple. The remedy requires
clear thinking about the nature of aggression and defense in the international
system, coupled with a variety of policies intended to deter more effectively the
entire spectrum of aggression. Such policies would include, with respect to the
international legal system, enhancing the international systemic response against
aggression and in support of defense, particularly regarding the low-intensity conflict
portion of the spectrum. It must be understood that a legal system that treats the
defensive response to overt or covert aggression the same as, or more severely
than, it treats the aggression itself, is either irrelevant in the real world of conflict
avoidance, or worse, it assists the aggressive attack. Unfortunately, though the
cure may be simple, it will nonetheless be difficult to reeducate against powerful
conventional myths that seemingly promote peace and restraint, but actually, add
nothing to—or even undermine—the deterrence of aggression.


Nardin 113

principle is, I have already suggested, unacceptable: that a State is internationally
legitimate when it is internally legitimate. The concept of “legitimacy” is not
one that can be used simply in making moral judgments, much less policy
decisions. Not only are there other ways of justifying sovereignty, but it is by no
means clear when either a State or a government is or is not legitimate.

The viewpoints we label “realism”, “common-sense morality,” and the like
are little more than names for theories abstracted from far richer and more
complex ethical systems—actual, living moralities that are embedded in practice
and used (and misused) by those who would probably be unable to give any very
coherent account of the principles underlying their own decisions. The philos-
opher can identify and dissect these moral traditions, and he can articulate the
principles that underlie the judgments in which the traditions are used and through
which they are continually reconstituted. The worst thing the philosopher can do
is to fool himself into thinking that his constructs are an improved version of,
and a practical substitute for, the moral traditions they interpret, and to offer these
constructs as a guide to practice. But of course this is precisely what philosophers
and other moralists are always doing, and I think Teson falls into this trap as well.

In the philosopher’s abstract approach to concrete ethical issues, all too often
amerely explanatory scheme is used to criticize or defend conduct. But you can’t
get very far by simply “applying” abstract moral categories and principles. It
would be better to rely on our laws and our moral traditions, criticizing them
internally on the basis of self-contradiction (holding a tradition to its own
principles, so to speak), rather than to make some rational scheme the archi-
medean point of reference. In considering the propriety of low-intensity opera-
tions, we need to pay particular attention to U.S. and international law. Morally
defensible military policies must respect non-consequentialist moral and legal
constraints, and those responsible for them must be wary of overriding these
constraints on grounds of “necessity.”

In my judgment, Professor Teson’s analysis is conceptually confused but it is
not, in the end, entirely unsound. Teson relies on a philosophical argument to
rediscover the common-sense moral idea that when the U.S. engages in low-in-
tensity operations, it ought not only to give weight to considerations of necessity
and proportionality, but also to respect those principles that protect individual
and collective human rights. In other words, ethically speaking, low-intensity
operations (like other kinds of military action) are constrained by moral con-
siderations as well as prudential ones.

Professor Teson proposes a theory to guide policy that is less nuanced than
common-sense morality and therefore hardly an improvement on it. As often
happens when a philosopher turns to moralizing, this theory turns out to be an
abstract restatement of a complex moral tradition or traditions. In Professor
Teson’s theory, the traditions that are restated are those of natural law and
Western liberalism. It is, of course, possible to pull a lot of different rabbits out




Teson 97

and in any case, the communitarian justification applies only to the domestic
defense of just institutions.

Two reasons support the larger duty of democratic governments to uphold
human rights and democracy. The first reason is simply that human rights are
universal, as indicated above. Therefore a rights-respecting democratic govern-
ment has a three-fold international duty: to defend its own just institutions; to
respect the rights of persons in other countries; and to promote human rights
and democracy globally. There is a difference, however, between these three
ways of upholding human rights. The first duty of a government is to defend its
just institutions: this duty is perhaps the only absolute duty that governments
have. The second duty of a democratic government is to respect human rights
of persons in other countries, for example, when conducting otherwise permis-
sible low-intensity operations. This duty is very strong, although perhaps not
always absolute. The third duty of a democratic government (related to the
second) is to defend and promote respect of human rights by foreign govern-
ments. This duty is strong, yet constrained by prudential considerations that; relate
to the capabilities of the State, its resources, and the safety of its citizens.2”

The second reason governments must uphold human rights and democracy
globally is, as Immanuel Kant pointed out, that it is the only way to secure
peace. By encouraging the creation and preservation of democratic societies
abroad, the democratic government is building the liberal alliance which alone
can serve as the basis for a stable international community. If Kant is right, liberal
democracies are far less prone to war than illiberal regimes. The coexistence of
democratic and undemocratic regimes is the main cause of conflict, because those
two radically different political systems cannot easily coexist. The difference in
regimes is the cause of international instability.

We see now clearly the consequences for the justification of low-intensity
operations of the foregoing considerations: a low-intensity operation will be
justified if, and only if, it is consistent with respect for global human rights. Thus,
a government may pursue the national interest, either in the utilitarian sense
(defined as the satisfaction of the aggregate preferences of the citizens of the State),
or in the (putative) communitarian sense of defending just institutions, provided
that in doing so it respects the rights of everybody.

The human rights approach helps us dispose of one kind of low-intensity
operations: insurgency and counter-insurgency. The human rights approach
includes a theory of just war: just war is war waged in defense of human rights.”
Thus, in almost any war, international or civil, there is a side that is morally right.
That side may be waging a war to defend itself from an aggressor, or attempting
to overthrow a tyrannical government (at home or abroad), or attempting to
justly secede from a parent State (self-determination).”° Insurgency operations
by a democratic State designed to assist the just warriors are justified, provided
that the help is welcome. For example, a response to a request for assistance by


Weigel 255

War in his January 1992 State of the Union address was welcome. But it was-also
at least five and a half months too late; it followed hard on the heels of a sour
pattern of administration deprecation of the reformist forces in the Soviet Union;
it ill fit with the administration’s curious (and, to my mind, unbecoming)
nostalgia for the uncomplicated days when all one had to do was deal with
Mikhail Gorbachev (to the tune of “Moscow Nights,” in the East Room of the
‘White House); and it was incongruent with the administration’s singular lack of
energy in devising effective support for the processes of democratic and market
consolidation in the new democracies of central and eastern Europe. Nor did
the President take the occasion of his first public acknowledgment of freedom’s
victory in the Cold War to lay out a new design for American leadership in the
post-Cold War world; rather, reacting to the current political wisdom instead of
aggressively shaping the public agenda, the President left the implications of our
Cold War victory dangling, so to speak, and spent the rest of his address on
(admittedly pressing) domestic issues.

Historians of the future will find much of this simply bizarre. Think about it:
at no point between the Revolution of 1989 in central and eastern Europe and
the aftermath of the New Russian Revolution of August 1991 did the President
of the United States address the American people to define, publicly, the moral
and political meaning of the end of the Cold War, or to sketch the contours of
an active American engagement in shaping the future course of world politics
and economics.? Moreover, in an election year, no challenger to the President
tried to fill that astonishing gap. The challengers from the opposition party would
not do so—or could not, without alienating key parts of their constituency,
which had long since found the Cold War distasteful and were thus not in much
of a mood to celebrate American victory in it. The challenger from within the
President’s party chose to look backward rather than forward. And thus the gap
remained. And the country, not unpredictably, decided that it was in a malaise.

It is, as they say, passing strange indeed.

There is no way to think seriously about the relationship of American political
culture to the problems of low-intensity conflict without confronting this
horizon-setting issue of internationalism vs. isolationism. And there is no way to
confront that issue without addressing the issue of political leadership. Just as
credible and persuasive political leadership is recognized (in all the literature I
have reviewed, at least) as an essential condition for a successful low-intensity
conflict policy, so is persuasive and aggressive political leadership necessary if
America is to take the leadership role of which it is capable in world affairs.

Only when our political leadership has defined our new role in the new
post-Cold War world—which, in my judgment, means only when the political
leadership has explained to the American people the facts of life about
unipolarity—will we be able to defend any broad-scale low-intensity conflict


106 Legal & Moral Constraints on Low-intensity Conflict

tights, they are necessary and proportionate, and they comply with minimal
norms of decency in their mode of implementation. My account of the moral
legitimacy of low-intensity operations sets aside the morally false obsession with
national interest, and substitutes in its place the defense of human rights and just
institutions,

One last word: as the world moves toward the liberal alliance predicted by
Immanuel Kant exactly two hundred years ago, low-intensity operations will
gradually become less necessary, for the same reasons that overt conflict will
decrease.>* Members of the alliance will rely upon their mutual commitment to
democracy, human rights, and the rule of law, and international disputes will
gradually be entrusted to international institutions. But there is a crucial proviso:
tyrants have no place in this scenario. The international State system will not
achieve peace and stability as long as international law continues to protect
dictators under the guise of State sovereignty. The main cause of war, and the
main source of the sad necessity that democracies have to carry out low-intensity
operations, is the existence of the enemies of freedom, in and out of government.
Only a truly universal movement toward democracy will render low-intensity
operations obsolete.

Notes

*Dr. Fernando Teson is a Professor of Law at Arizona State University.

1, Foran influential modem reappraisal of the morality of war, see WALZER, JUST AND UNJUST WARS:
A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS (1977).

2. Kant, To Perpetual Peace: A Philosophical Sketch (1795), in PERPETUAL PEACE AND OTHER ESSAYS
107, 110 (Humphrey trans. 1983).

3. Fora definition of low-intensity conflict, see infia, text accompanying nn. 9-12.

4. Of course, the intensity of the conflict is never “low” for those who directly suffer its consequences,

5. Even having fought fairly and with chivalry in conventional war on the wrong side is sometimes regarded
as praiseworthy. For example, the German Luftwaffe ace who says “I complied with my duty of fighting bravely
for my country.” This is, of course, on closer analysis morally dubious,

6. See, for example, Kant’s condemnation of certain forms of low-intensity conflict in his Sixth Preliminary
Article. Kant, supra n. 2, at 109-110.

7. This attitude underlies, I think, the perception by many (which I believe is mistaken) of the intrinsic
immorality of the CIA.

8. The literature on the moral justification of low-intensity conflict is surprisingly scarce. The only article
on this specific issue is O'Brien, Counterterror, Law and Morality, in LOW-INTENSITY CONFLICT, at 187
(Thompson ed. 1989). This article, however, does not go beyond very general remarks about international
law and just war doctrine.

9. See, eg., the definition by the U.S. Joint Chief of Staff Low-intensity conflict is a limited politico-
military struggle to achieve political, social, economic, or psychological objectives. It is often protracted and
ranges from diplomatic, economic, and psycho-social pressures through terrorism and insurgency. Low-inten~
sity conflicts generally confined to a geographic area and is often characterized by constraints on the weaponry,
tactics, and level of violence. A Joint Low-Intensity Conflict Project Final Report, Executive Summary (U.S, Army
‘Training and Doctrine Command], at 3 (1986). Fora summary of criticisms to this definition, see Thompson,
supra n. 8, at 1, 3. See also the long list offered by MCMAHON, LOW-INTENSITY CONFLICT: THE
PENTAGON'S FOIBLE 34 (1990).

10, In this sense, see the position taken by Col. Harry G. Summers, A War is a War is a War is a War, in
Thompson, supra n. 8, at 27.
11. See, e.g., O'Brien, supra n. 8, at 188, 199-104,


194 Legal & Moral Constraints on Low-Intensity Conflict

In modern security jargon, the counterforce velue of the action should be
proportionate to the countervalue costs.>”

The principles of proportion and discrimination are difficult to apply at all
levels of the spectrum of military force. This includes low-intensity conflict,
particularly in cases of revolutionary/counterinsurgency war. Such wars are often
fought in areas where the belligerents and civilians are closely intermixed. It
becomes virtually impossible to fight without causing substantial civilian casual-
ties and civilian damage. Indeed, it is well known that a standard tactic of
insurgents is deliberately to involve civilians and civilian targets so that damage
to them will alienate the population from the counterinsurgent forces and
government and taint the reputation of intervening allies,

This fact emphasizes the need to coordinate the strategy and tactics of
war-fighting with the greater strategic ends ofa war. The purely military results
of counterinsurgent operations, in the form of guerillas killed and bases destroyed,
must be weighed against what the fighting has done to the attitudes of the civilians
caught in the middle of it. Insurgents and their supporters may need to perform
the same calculation.

In summary, both the positive international law of war and the war-conduct
law of just war doctrine emphasize the principles of proportion and discrimina-
tion. The main — and important — difference between them is that the
international law of war is interpreted and applied only to military contexts
whereas just war evaluates conduct in grand strategic as well as strategic and
tactical terms. Just war, then, can complement and supplement the positive
international war-conduct law and contribute to policies that are more moral
and more prudential.

Two particular issues, frequently debated in discussions of low-intensity
conflict, have been raised with respect to the international war-conduct law as
interpreted by international law and by just war doctrine. These are the issues of
deception and assassination. It must be acknowledged from the outset that neither
has, to my knowledge, received much attention in the contemporary just war
literature.

There is some relevant positive international war-conduct law with respect
to deception. In the Hague Rules of 1907, Hague Convention IV, “it is especially
forbidden . . . to make improper use of a flag of truce, of the national flag, or of
the military insignia and uniform of the enemy, as well as the distinctive badges
of the Geneva Convention.” (Art. 23 (f)) The Hague Rules also provide: “Ruses
of war and the employment of measures necessary for obtaining information
about the enemy and the country are considered permissible.” (Art. 24)

The meaning of Art. 23 (f) is evident, as indicated by the discussion of its
provisions in Army FM 27-10.3 The Army’s interpretation of Art. 24 is more
complex. A distinction is made between “good faith” and “treachery or perfidy.”
It is conceded that the line between the two is “indistinct.” FM 27-10 observes


Nardin 111

It may help to sort things out to provide a more elaborate typology of moral
views, one that identifies a wider range of moral views than Teson’s dichotomy
between political realism and the human rights perspective he advocates,

In particular, I want to suggest that it helps to classify moral views along not
one but two dimensions. The first allows us to distinguish between consequence-
oriented and constraint-oriented viewpoints. A consequence-oriented ethic is
one that makes consequences or outcomes the criterion of right and wrong,
whereas in a constraint-oriented ethic right and wrong are determined on the
basis of antecedently-authoritative principles. Realism, as Teson understands it, is
an example of an outcome-oriented perspective, whereas his own human rights
theory is (mostly) a principled or constraint-oriented perspective.

But there is a second dimension of difference in ethical theory that cuts across
this outcomes-principles dimension. Ethical theories can also be either universal
or particular. That is, the outcomes or constraints they emphasize can be those
of mankind as a whole, or they can be those of some particular portion of
mankind, a particular community. If we make the simplifying assumption that
these two dimensions can be dichotomized, we can generate a simple 2x2 table
of possibilities (see Figure 1).

FIGURE 1
Universal Particular
Consequence- step oceans aoe .
Oriented Utilitarianism. Political Realism
Common-sense
Constraint- Morality oo
Oriented Natural Law Communal Principles
Human Rights

Although this typology reveals the relationship between two significant
dimensions of ethical controversy, it remains a pretty crude interpretive tool. Its
categories may seem clear and distinct, but actual moralities are a messy affair.
They resemble each other in various, sometimes disturbing ways, and often
overlap. In fact, moralities are in some ways best understood as vocabularies for
moral judgment and debate, and any given vocabulary can be used to express a
wide range of substantive positions.


Panel Discussion 217

conflict can’t be resolved until you decide whether you have a right to do that.
My claim is that there is no such right.

PROF. FARER: By low-intensity, meaning—

FR. WINTERS: By any meaning. It’s wholly irrelevant unless you have a right
to engage in reform intervention and I don’t think there’s such a right, or, if
there is such a right, it’s not in the just war tradition. At least, it’s not in the parts
of the just war tradition with which I’m familiar.

PROF. JOHNSON: What I actually said was this: first, I explicitly did not say
that the only good governments are democratic governments. I think that by
and large you find more of them that are, but generally I did not say that. What
I said was you find good governments that satisfy the proper ends of politics, in
a variety of forms, and you have to take that seriously. This means that you can
actually conceive of a good government that is run by someone we might
consider a very strong monarch. I’m not sure I’d go so far as to say a good
government could ever be run by a dictator because the term “dictator” means
something different to me.

Secondly, I said that in order for there to be justification of the use of force,
there must have occurred an egregious violation or threat to the rights or security
of people. That is the criterion I would use in making the decision about whether
to move against a particular dictator or not. I do think that there is a right to do
that. I don’t think that we can use the argument about different conceptions of
rights, justice and legitimacy to argue against the fact that there are a lot of things
that you can get a very broad international consensus on. So, what I did was to
say that where you’ve got that consensus and where you have some clearly
egregious violations then there is justification.

PROF. COLL: But would you apply that to violations against peoples within
sovereign boundaries?

PROF. JOHNSON: Yes.

PROP. COLL: Whereas Father Winters keeps insisting that sovereign borders
should be inviolate.

FR. WINTERS: Yes, on the whole. I would say I’m very close to the position,
I think it’s Michael Walzer’s, that borders are not absolute in every case. Genocide
is certainly a case where sovereignty is being subverted, but I think there is, in
the literature, a wide spectrum of views about when borders can legitimately be
crossed to arrest human rights violations. I think the word “egregious” is


206 Legal & Moral Constraints on Low-intensity Conflict

understand and comply with legal, moral, and cultural constraints on the use of
forée, they must also internalize this moral and legal language so that they will
be able to appropriately communicate with the citizens that they serve. Recent
events have demonstrated in a powerful way the practicality of Professor
O’Brien’s theory.

Military operations involve planning, training and execution. More recently,
they have begun to require justification. This phenomenon became discernible
in the speech by President Reagan following the Libyan raid In every major
operation since, uniformed officers have participated in televised public briefings
reporting on current military operations. Indeed, our most talented “operators,”
because of their expertise and current knowledge, may well be required to
become our public spokesmen. This prospect adds direction and urgency in the
development of curricula for the education of senior officers. It also further
reinforces Professor O’Brien’s practical thesis.

The education of senior officers requires a theoretical, interdisciplinary ap-
proach. Stressing fundamental truths, underlining principles, and tracing the
historic development of ideas are far more important than the teaching of current
issues or rules. In this interdisciplinary approach, each discipline has its own
unique contribution. Experience has taught me that an analysis of operational
problems that combines just war theory, domestic and international law, history
and management information insures sound public policy. The best example, in
my judgment, of such writing can be found in Guenter Lewy’s Book, America
in Vietnam, in Chapter 7, “American Military Tactics and The Law of War.
This chapter is vital reading for military officers who wish to extract professional
lessons from the Vietnam War. Such a rigorous, interdisciplinary, historical
analysis seems to be at the heart of Professor O’Brien’s plea.

In the paper before us, Professor O’Brien goes beyond an interdisciplinary
approach to national security problems by advocating that just war theory
“complements” international law. He thus seems to be moving beyond comin-
gling to intermarriage. Historically, he notes that legal positivism displaced just
war theory in the 19th and early 20th centuries. However, the “collapse of the
positive international law of war in the total wars of World War I and II, the
nuclear balance of terror, the multitude of revolutionary/counterinsurgency wars
complicated by multiple interventions and counterinterventions, and the increase
in terrorism” has produced a need to “shore up” legal “weak points” with the
disciplined, rigorous analysis required by the just war tradition.

Personally, I am both repulsed, attracted, and intrigued by this approach. The
advantage of law is certainty, and many would argue that nebulous just war theory
detracts from it. In our secular society, instinct tells us that one should be very
careful not to let “religious ideas” intrude into the law. Will we selectively use
just war theory only if the law is not on our side and we need to bolster our


Panel Discussion 135

and violates human rights. We have to take circumstances into account, but a
State that does these things is becoming illegitimate.

I would respond also to your important point about the 70 or 80 percent
support that he seems to have. It might be true, but I always distrust those polls.
Dictators have always said that they represent the people. I have never met a
dictator who doesn’t claim to represent his people. But, more important than
that, the preservation of human rights is not subject to counting heads.

PROF. REISMAN: Prof. Wakin?

PROF. WAKIN: Mal Wakin, United States Air Force Academy.

I’m a bit uncomfortable with Professor Nardin’s use of Plato’s metaphor of
the cave. It’s nota critical point, but it’s one that seems to be relevant. I can agree
with you that international law is something that we must pay very close attention
to and that at the least, serves as a guide for what we do. It seems to me that it
always has been influenced by moral philosophy, and sometimes quite directly.
‘When we get the law of warfare, for example, clearly moral philosophy has played
an enormous role in determining conduct toward prisoners and non-combatants.
It seems to me that the principles underlying these rules of conduct come from
philosophical considerations before they are established in international law. So,
I’m a little uneasy with the suggestion that the law is only shadow wisdom as
distinguished from the knowledge of philosophers who have escaped the cave.

PROF. NARDIN: You know, these are such complicated issues. First of all,
a lot of the moral wisdom that we draw on, and that’s reflected in international
practice and international law, is not necessarily philosophical. There are lots of
ways of talking about moral issues, and often when philosophers discuss them
they aren’t being fully philosophical. They’re not simply examining presupposi-
tions and trying to relate morality to other kinds of knowledge. They’re not
seeking for the foundations of moral beliefs. These are activities that I consider
legitimate philosophical pursuits. They are arguing about moral issues, often in
a very casuistic way, which is not my ideal of philosophy. They’re dealing with
particular cases and so on. So, there’s no question that part of this larger, ongoing
debate isn’t a technical matter limited to professional lawyers. So, I don’t want
to be misunderstood on that point.

I’m concermed about a particular kind of attitude toward moral philosophy
that is very prominent in the United States these days, and which I think plays
into the kind of interventionism that is also part of our tradition. That is, to be
struck by bright ideas and to think that one can substitute one’s insight for a
process of negotiation and paying attention to the past. I would call this a kind
of a rationalistic approach to things, and I think too often when philosophers
write about international affairs, they want to short circuit that established process


Panel Discussion 139

earlier question was helpful in that it suggested that we may have to face in this
particular realm of inquiry a situation where the rules either do not exist, or have
very little validity, perhaps because they emerge from this rather wretched case,
which the United States did not handle very well procedurally. Even if that is
so, the court, I think, acted in an ultra vires manner, and so there is a cloud, at
least on the value and the content of its judgment. Of course the case has never
closed because the results have been withdrawn, but a judgment is on the books,
a very unhelpful judgment. So what do we do as practitioners and operators in
this field where we may have to face the judgment of the Court in a situation
where we feel that we have rights under the preexisting aw and we have the
moral authority to engage in action that we feel must be taken, action which
might conform to all of the requirements set out this morning? What is the
approach that you would recommend for the policymakers to take into account
these conflicting imperatives?

PROF. REISMAN: That's a simple matter. Do the right thing.

PROF. TESON: Well, very briefly, I think that the Nicaragua case was an
unmitigated disaster in every respect, not just in the self-defense field, but in the
area of human rights.

I think the answer to your question, Professor McNeill, is simply that the
Nicaragua case may not represent the law. I think we should take the metaphor of
the cave to suggest that Anglo-Saxon notions of precedent may lead us to excessive
deference to the Court’s judgment. What the interpreter should do is to try to
impartially interpret the law in accordance with the background theory that can best
explain international relations. I think the Court was out of touch with the process.

PROF. REISMAN: Judge Sofaer.

JUDGE SOFAER: Abe Sofaer.

Iam troubled by what Jack says. I find that there are rules, and I had gotten
the impression that the trouble with the Nicaragua case was that the Court made
up new ones and applied them there, and we battled, and are continuing to battle
as I understand it, over what the right rules should be. The interesting thing
about Professor Teson’s paper is that it seems to imply that there are not any
tules, so we are not losing anything by opting for a sort of moral guide to when
‘we can intervene in States and when we can’t. I’m not sure of that. I think we,
in the Government, always assumed that when you went into another State,
irrespective of how moral the government was or the leader was, you were
violating the territorial integrity of that State. If it was a State recognized by the
U.N., you were violating that State’s sovereign rights by going in there without
its permission, and there was automatically an obligation upon us to explain what


820 Legal & Moral Constraints on Low-Intensity Conflict

was a good idea. The question Professor Farer raises is a very good one. Do we
expose ourselves too much by coming down on the side of order? I don’t know
the answer, but I think that it is of fundamental importance to the low-intensity
conflict debate.

PROF. COLL: Thank you.

MR. COLLINS: Professor Farer said that low-intensity conflict is the weapon
of the weak. I would suggest to the group that it just seems that way because this
conference has been devoted almost entirely to the military aspects of low-in-
tensity conflict. Low-intensity conflict methods can be used by the strong to
tremendous effect in non-military contexts such as political, economic,
psychological and religious warfare. I’ll give you one example. Japan is now in
a great position to wage economic warfare against the United States. All four of
our military services have weapons and equipment that are inoperable without
components from Japan. If they turned off the tap now, we would have to ask
how our just war principles would apply in such a crisis. Do they permit us to
declare war against Japan for conducting non-military operations against the
United States?

PROF. COLL: The same question, by the way, was raised back in "73 with
the oil embargo.

MR. COLLINS: Yes sir.

PROF. COLL: And I remember Robert Tucker wrote a very famous piece
in which he argued that the United States had the right to seize and occupy the
oil fields in Saudi Arabia.

PROF. O’BRIEN: I just would like to voice my agreement with Mr. Lord,
Professor Eckhardt and Admiral Harlow about the need for serious study of how
the United States Government deals with all the problems that come under the
heading of civil affairs, whether they be political, economic, social or psychologi-
cal. We never have come to grips with it. My experience as a former Army civil
affairs officer suggests that the military needs help from the people in AID or the
State Department or the universities to deal with all these things. There are a lot
of compelling reasons why the military has to take the lead, but it can’t go it
alone in civil affairs.

There are a lot of problems with getting a grip on civil affairs. First of all, to
the extent that you take this business seriously, as soon as the Washington Post
gets wind of your efforts, there will be an article saying “In the Pentagon they
are plotting to take over and rule foreign countries.” This has happened before.


IN MEMORIAM

This book is dedicated by the editors to the memory of Staff Sergeant
Jeffrey A. Morrisey, United States Army Special Forces (1960-1994), a faithful
soldier, public servant, colleague, and friend.


Panel Discussion 233

Thirdly, getting to the issue again that Sam Sarkesian raised, it’s quite clear
that there isn’t a big literature on the relevance of just war doctrine to the kinds
of subjects that we’ve been dealing with. But I do believe, with Jim Johnson,
that just war doctrine is a growing, developing thing that has all sorts of potential
and, if we put our minds to it, we may find the resources within just war doctrine
to take on new problems.

One other point. I think it’s important to emphasize that the respect for
international law in areas having to do with conflict is mainly generated within
the values of a State. It does not depend upon reciprocity. In the old days, we
used to try to teach the troops, act as you would want to be acted against. Forget
it. Ask the people who were prisoners-of-war in Korea. Ask the people who
were prisoners-of-war in Vietnam. We didn’t mistreat communist prisoners-of-
war because they were torturing and mistreating ours. The reason Americans
obey the laws of war is because we’re Americans and we have a value system
that says we will fight properly. We don’t always live up to it, but I think that is
our tradition.

Finally, I want to emphasize that the other part of the sanction impelling us
to respect these codes is what you might call both individual and social
conscience. Of course you can cheat on just war doctrine. You can cheat on any
kind of ethical system if you want to, but if you’re serious about trying to do the
right thing, then the sanction of your own conscience is what keeps you from
manipulating and being hypocritical. My belief is that, more often than not in
recent times, the United States has been conscientious and I think that we should
be happy about the increased influence of just war doctrine in U.S. policy.

Thank you.

PROF. COLL: Thank you, Professor O’Brien.
Now we will hear from Bill Eckardt from the U.S. Army War College.

PROF. ECKARDT: Some ten years ago when I first began to read Professor
O'Brien’s writings, I scratched my head at his co-mingling of just war and law,
and his strange terminology. He gave a paper at a similar conference in 1983 on
special operations in which, he discussed the nature of the legal and moral debate
we have in our society when we attempt to gain a consensus about going to war.
That very practical paper, my students have consistently told me, is the most
important article they read while they’re at the Army War College. During this
same time, there was a great reconsideration of lessons learned from the Vietnam
‘War. The key conclusion of that reevaluation was that in a democracy the task
of sustaining support for the decision to use force is an area of vulnerability
comparable to a Clausewitzian center of gravity. Those two ideas combined in
the minds of my students and I think I will show in just a minute, how practical
an effect they had.


Panel Discussion 237

Professor O’Brien himself, and also by Professor Eckardt, is the potential for just
war doctrine to be used casuistically. To what extent is there a danger of just war
doctrine becoming simply an instrument by which we justify that which those
in power wish to do? That is, of course, a danger present also for international
lawyers, But given Professor Eckardt’s recognition that law has the advantage of
a greater degree of certainty, that it has certain more easily recognizable signposts,
and that just war doctrine is indeed, quite flexible, how do we guard against the
danger of just war doctrine simply becoming part of a rather mechanical process
for justifying that which our government does?

Secondly, when Professor O’Brien tells us that ultimately respect for inter-
national law does not depend on reciprocity, but on our domestic moral values,
I do believe he has an important point to make. But is he overstating his case?
And so I want to raise the question for you: what is the role of reciprocity?
Admittedly much of the reason we behave lawfully is rooted in our own domestic
moral and legal values. But is there a place for reciprocity? Bill O’Brien suggests
that there isn’t. Do we really accept that?

And then thirdly, I would like to hear from our legal practitioners, people
such as Admiral Harlow, Admiral Robertson, Jack McNeil, Michael Reisman
and Tom Farer, whether Bill O’Brien’s case against international law is either
fair or gives us a full account. I would in particular also invite the comments of
Judge Sofaer from the viewpoint of his experience as Legal Counsel to the
Department of State. More generally, to what extent can you, in your various
positions of responsibility, see the usefulness or the coherence of just war
tradition for the kinds of policy challenges that you face?

PROF. O’BRIEN: Can we start with question number one?

I’ve already acknowledged that there is a potential for misuse and for hypocrisy
in applying just war doctrine. It seems to me though, if it is done seriously, not
only as a matter of conscience, but as a matter of prudence, it can be of great
value. You could take all the normative elements out of the process altogether.
I’ve always thought just war doctrine would be a good standard format for a
policymaker to sit down with and figure out what we are trying to do, what we
are doing it with, what are the probable consequences, what are the chances of
success and what are their ramifications that we can’t entirely foresee? I’ve always
thought it a very common sense sort of thing. So once again, you really can’t,
in the end, cheat on your own conscience and your own professional judgement.
I think in this kind of business there’s not very much room for kidding yourself.

One of the things that strikes me very much about just war doctrine is the
critical business of the probability of success. I didn’t speak at length about that,
but one of the aspects I emphasize is that it must be done repeatedly. You review
every day, maybe every hour, what’s going on, and at some point you may say,
well, this seemed like a good idea. It seemed to be possible, but now it’s going


262 Legal & Moral Constraints on Low-Intensity Conflict

to be on the relatively high numbers of Iraqi combat deaths and on the damage done
by the allied air campaign to the economic and technical infrastructure of Iraq. Those
are grave questions with important implications for the future of conventional war,
but they do not bear directly on low-intensity conflict. On the other hand, the
post-Gulf Catholic debate about the components of just cause certainly will shape
the low-intensity conflict argument in the future. The bishops’ tendency seems to
be to hold the line, so to speak, at cross-border attacks; there is little evidence that
non-proliferation, or anti-terrorism, or humanitarian assistance will be defended by
the United States Catholic Conference as legitimate casus belli. That inclination will
be reinforced, or so it would seem, by the Vatican’: narrowing of the boundaries of
just cause, Yet, as I argued above, there really are serious, and in many respects
unavoidable, issues to be engaged here. We may thus be heading for a period of
some brisk intellectual confrontation in Catholic circles.

As for the American academy, the dreary stories of the impact of “political
correctness” on our campuses are too familiar to have to be rehearsed here. That
the campuses will provide recruits for any possible movement that seeks to restrict
USS. low-intensity conflict capabilities seems wholly predictable. But whether
that movement will have any real political impact seems a more dubious
proposition, at least in light of the Desert Shield/Desert Storm experience: for
here, as in recent elections, students often proved politically wiser than their
presumed (and tenured) betters. Of more immediate concern than these potential
agitations, though, is the state of international relations theory in American higher
education. Read through the scholarly and technical literature here, and you may
well be reminded of Newton Minow’s famous description of television as a “vast
wasteland.” We are living in a revolutionary period, in which the power of ideas
and passions to shape events — sometimes in wholly unexpected ways — has
been decisively demonstrated in venues ranging from east Asia to Kiev. And yet
we find ourselves burdened by a professoriate that stopped taking political ideas
and passions seriously two generations ago. Think of the vast amount of energy
(and money, and ink) expended in 1990-1991 on the so-called “Grand Bargain”
devised by the brahmins at Harvard’s Kennedy S:hool of Government: the deal
in which the United States and its western allies, in return for major Soviet
military cut-backs, would agree to finance the reform communism of Mikhail
Gorbachev. Somehow, amidst all the equations, the basic political fact of the
situation never got taken seriously: that what the people of the Soviet Union
wanted was to get rid of communism, reform or otherwise, and sooner rather
than later.

A similar intellectual paralysis pervades mucla of the establishment foreign
policy community. Some months ago, editors at Foreign Affairs were lamenting,
to the New York Times correspondent Thomas Friedman, that no one had yet
sent them the post-Cold War equivalent of George Kennan’s famous “Mr. X”
article, which provided the doctrinal foundation for containment and the Cold


Panel Discussion 129

Professor Sarkesian wanted to know when we would get to the operational
level. We're not there yet.

I suppose you could say that our debates are on three levels: the operational
level, the policy level, and the philosophical, or what we might call the
psychedelic level. That may sound hostile to Professor Teson, but as you will
soon discover, I’m up there in the clouds with him.

Professor Teson is arguing, as I think is correct, for strict moral limits on
low-intensity operations, on the grounds that it’s as important to respect human
rights in these activities as in conventional warfare, but I think there are problems
with the way he goes about making his case.

Specifically, what I want to argue is that you can’t make this kind of case by
operating at the level of philosophy. You can’t develop a philosophical theory
of legitimacy and hope to get any kind of policy guidance, not to mention
operational guidance out of it. When you try to do that you can get bogged
down in philosophical abstractions. In fact, I think that the legitimacy theory that
he offers is too elastic and permissive. In its place I would propose the very
obvious, plain, probably stupid but nevertheless, in my case, firmly held view,
that we simply pay more attention to the traditional constraints of international
law and try to make sure these constraints are interpreted properly, and that they
are reflected in United States law and military practice.

Let me just state very briefly and bluntly my view about this. This is a
complicated view. I tend to see international law itself'as an ethic of international
relations. I think this ethic is undermined by moral theories that make respect
for international law subservient to moral principles. The principles of legality
and the rule of law that are embodied in international law, in the American
Constitution, in American law, and American military law are most commonly
undercut by various kinds of realist arguments that would, too quickly, substitute
the pursuit of the national interest for measured respect for our legal traditions.
There is another way in which this respect is undercut. And that, I think, is
reflected in the kind of liberal idealism which I share as a value, that’s represented
in Professor Teson’s paper. Whether we call this respect for human rights, or
natural law or higher law, if we derive from this ethos the argument that our
unmediated view of what is right or just can be substituted for judgments that
are made on the basis of a consensual body of rules that’s come down in the
international community through the centuries, then I think we are just as much
troubled with liberal idealism as we are with political realism. And this is also
true if we prefer, as does Professor Reisman, to call this a consensual body of
processes and procedures for generating consensual policy outcomes. That’s my
main point.

T’d like to now address some more specific points in Professor Teson’s paper.
First of all, definitional problems. I think he gets off to a bad start by defining
“sovereignty” as the monopoly of coercion granted to a government by the


90 Legal & Moral Constraints on Low-Intensity Conflict

conventional war, the definition of low-intensity conflict is still too broad.
Different kinds of operations are lumped together in the literature under the
low-intensity conflict label, yet are very different in ends and means, Examples
of these are: counter-narcotics; counter- and pro-insurgency; and the targeting
of individuals such as political leaders. A further element of the definition is that
all these actions are performed in the territory of another sovereign State, or in
a territory assimilated to it; and they do not involve the direct commitment of
troops or other personnel openly wearing uniforms or identifying insignia. All
these activities have in common that they involve coercive action performed by
a government in a foreign State, which by definition is a territory in which the
intruding government has no power, in principle, to exercise such coercion.

However, that is all these operations have in common. Many operations
that are lumped together under the label of low-intensity conflict (even
excluding limited conventional war as I have done) involve substantial
material differences of moral relevance. There is a big difference between
aiding the Iraqi population to overthrow Saddam Hussein, and training death
squads aimed at innocent civilians in El Salvador; between kidnapping a
suspected drug trafficker in Mexico without waiting for the Mexican courts
to act, and sending a commando force to liberate Western hostages victimized
by a fanatic group tolerated by the local government. And the contrasting
examples can be multiplied. Given this diversity of possible cases, one cannot
have a principle according to which all coercion short of open war exercised
in another State’s territory is morally impermissible (or permissible.) It will
depend on the facts.

ill. The Ends of Low-Intensity Conflict

Low-intensity conflict is a form of international coercion. This coercion may
involve different degrees of violence.’ At the very least, low-intensity operations
involve violation of the sovereignty of another State, that is, of the monopoly of
coercion that is granted only to that government in that territory by the citizens
that reside in it, and recognized by international law. And in many other cases,
low-intensity operations will involve doing actual violence to persons. What
aims can morally justify such actions? Must a government invoke the national
interest, or a pressing national interest, or self-defense, or expediency, or the need
to punish criminals; or is there something else required in the form of justifica-
tion? People have differed on the answer to this question.

(a) The Realist Answer

Realists have long maintained that international behavior can be explained by
postulating an overriding motivation, which is the same for all international
actors, and for nation-States in particular: the national interest. For realists, the


Coll and Shultz 345

powers.” Hamilton saw “decision, activity, secrecy, and dispatch” as key char-
acteristics of the executive.”

In sum, for the Framers, the statesman was to blend principle and prudence
in the conduct of international relations. In the Constitution this power was
centered in the Presidency. Responsibility for defense and foreign policy was
assigned to the Executive because it was the branch most suited for it. The
Federalist Papers underline the fact that the Framers had solid arguments for placing
the use of force and diplomatic activities at the center of the foreign policy powers
of the President,

Policy Guidelines for the Use of Covert Action

The purpose of the previous discussion was to examine two Western
philosophical traditions as potential sources from which to place the use of covert
action on a firmer theoretical basis than exists in the four American perspectives
described earlier. These two philosophical traditions, which have a number of
common links with the just war tradition explored so thoroughly elsewhere in
this book, provide a coherent foundation upon which to construct guidelines
for the use of covert action as an instrument of statecraft.

From Aristotle we will adopt an approach that seeks to connect prudence and
morality in order to maintain a nexus, however tenuous, between politics and
principles. Politics and the conduct of the statesman are to be directed toward
virtuous ends. Within this context the role of prudence is to adjust and apply
moral virtues to particular situations. Statesmanship becomes a form of prudence,
and the statesman fulfills his proper role, when prudence and virtue are combined.
Among the moral virtues that the best regime is to reflect are justice, moderation,
liberality, honor, and proper ambition. These Aristotelian themes complement
well Thucydides’ warnings against excess, his praise of moderation in statecraft,
and his view of prudence as a necessary check on unrestrained ambition.

From the second tradition we noted that the American regime was founded
on four universal principles: equality; inalienable rights; government by consent
or self-determination; and the right to change government. The question was
raised as to whether, and if so to what extent, these universal principles might
be reflected in foreign policy. While the Framers evoked a doctrine of universal
natural rights that would appear to serve as the basis for foreign policy, they also
called for prudence. They saw a complementary relationship between principles
and prudence. The Framers sought to strike a balance between the universal
principles upon which the American regime was founded and their prudential
application in international relations. By applying this standard the Framers hoped
to steer a middle path in foreign affairs that, in today’s terminology, would place
them between idealism and realism.


Index

‘Just war theory or tradition, 145-248, 303-313

See also specific matters

Afghanistan situation, application to, 290

‘American legal and moral thought on war, 151-154, 292-293

anarchy, application of, 104

clandestine operations, application to, 276

complementary role of just war doctrine in international law of war, 181-201, 226-233
commentary on, 205-208, 233-235,

conventional war viewed as, 87

counterinsurgency: See Insurgency or counterinsurgency

counterterrorism: See Terrorism and counterterrorism

covert activities: See Covert activities

critique, 171-178

defined, 88, 148, 277

discrimination principle (jus in bello), 162-163, 193-193, 232, 256

double effect doctrine, described, 104

human rights approach to intemational law, 97-98

ideology, just war as, 315-316

insurgency or counterinsurgency: See Insurgency or counterinsurgency

jus ad bellum (““war-decision law”), 149-154, 167-168, 182-192
covert actions, 165
framework of international law, complementing, 226-230, 235
issues in decision to use military force, 156-162
just cause: See Just cause
“ight” authority: See “Right” or competent authority
tight intention: See Right intention

jus in bello (“war-conduct law”), 149-154, 167-168, 192-196
discrimination principle, 162-163, 193-195, 232, 256
framework of international law, complementing, 230-233
issues in choice of means, 162-167
Shulez-Weinberger debate, 157

legal analysis, distinguished, 238

moral constraints on low-intensity conflict, 145-248.

proportion: Sce Proportion and proportionality doctrine

terrorism: See Terrorism and counterterrorism

who can undertake just war, 100-101

K

Kant, Immanuel
human rights and democratic institutions, 97, 106
“judgment of God,” war as, 87
Kautilya’s Arthashastra, 4-6
Kellogg-Briand Treaty
self-defense under, 62-63
Kennan, George, 329
Kennedy, John F.
Bay of Pigs: See Bay of Pigs
Laos, covert activities in, 326
South Vietnamese government, 1963 removal of, 210
Ker Frisbie Doctrine, 47
Khalil El Wazir (Abu Jihad), Israeli assassination of, 195-196, 231
Kidnapping: See more specific matters,
Kings
Louis IX of France, struggle to establish sovereign state, 174-175, 209
regicide, cultural uneasiness with concept of, 164, 213,
Kirkpatrick, Jean, 223-224

373


276 Legal & Moral Constraints on Low-Intensity Conflict

which we ought to think about accommodating. The nature of our discussions
tends to treat our purposes as sacrosanct, and doesn’t always take sufficient
account of the resources of diplomacy. What is diplomacy other than an effort
to seek out an accommodation? You may decide that the costs are not worth the
compromise. This is just a caveat and I think it’s made about as clearly as it can
be.

PROF. WAKIN: I'd like to speak about one of our possible responses to
low-intensity conflict. Terrorism is a criminal act, whether it is committed by
an individual or a State. Now, we have traditionally dealt with criminal acts by
attempting to arrest and try the perpetrator in a court of law. If, in the process
of apprehending the criminal, he gets killed, then that is no great loss. The way
we deal with certain kinds of low-intensity conflict might profitably be seen as
having more in common with criminal law enforcement than with conventional
war. That’s worth thinking about when we try to envisage the results of
developing policies that permit the assassination of heads of State.

MR. McNEILL: I want to get back to the distinction made within the Defense
Department between a covert operation carried out by the intelligence com-
munity, and a clandestine operation carried out by military assets. I was thinking
about the hypothetical case of nuclear weapons winding up in the hands of Iran.
Obviously, we have a choice of methods to deal with such an exigency. I was
wondering if Mr. Weigel would say that the criteria in the just war tradition
would be equally applicable to a covert or a clandestine operation. According to
the documentation provided in the book Mayday, President Eisenhower decided
that pilots of the U-2 planes would not be military. He wanted them to be
civilians so that the Soviets could not characterize the overflight program as a
military operation, which they might have done to justify a retaliatory response
of a military kind. So, do you think that your just war analysis would apply to
this intelligence operation or only to a military one? Would all the criteria apply
to a single military operation dedicated to a particular limited goal in peacetime?

MR. WEIGEL: IfI understand the question, I think the answer is “Yes.” The
just war tradition is not in any sense a kind of moral cookie cutter in which you
can stamp out fairly clear answers to things. The image I’ve used is that the just
war tradition is far more like a conductor interpreting a symphonic score than
an engineer reading a blueprint. I mean, the norms are the notes in the composer's
instructions, tempo, et cetera, but the beauty of the music, or in this case the
wisdom, is a function of the wisdom of the statesman reading the notes on the
score, and interpreting it in a morally reflective way.

It does not seem to me at all inappropriate to think about covert operations
for the aims of non-proliferation according to these criteria. After all, Paul


Index

historical authority for military force, 158-159
intervention, sovereign nation’s request for, 26, 200
just war doctrine applied to, 199-200, 232
military force, just cause for use of, 161-167
Noriega (General), arrest of in Operation Just Cause: See Panama
Peruvian trade: See Peru
reciprocity, effect of, 47-48
sovereignty
just war tradition affecting use of force, 159
nation’s inability to deal with criminal organizations, 141

E

East bloc states, covert operations of, 16

Economic redistribution of wealth, 308, 316

Economic sanctions: See Sanctioris or boycotts

Educational institutions
integrating moral and political ideas about low-intensity conflicts, 260, 262, 298-299
military officers in US forces, education level of, 270

“Bgregious” violations of accepted rights
human rights violations, what constitutes, 217-218
sovereignty affecting interventionary actions in cases of, 160, 248

Egypt's Anwar Sadat, assassination of, 327

Eichmann, Adolf, seizure of, 102

Elizabeth I, 9

El Salvador, attempted overthrow of government by Nicaragua: See Nicaragua

Elusive nature of unconventional warfare, effect of, 4

Embarrassment, avoiding covert activities causing, 332-334

Emergency: See Last resort criteria

Engaging totalitarian regimes with rules of law and democracy, policy of, 36-37

Entebbe, rescue at, 282

Environmental effects of Gulf War, report on, 34-35.

Equity, 50-52

Ethnic hatred, challenges posed by, 161

Evangelical religions, 261

Evidence
good faith, multilateral approaches to self-defense as evidence of, 48-49
humanitarian intervention, absence of “evidence” of, 186, 228-229, 236
intelligence-gathering for reasons of few known facts, effect of, 243
Security Council, presentation of evidence before, 38
use of military force across borders, burden of proof in, 160

Executive branch: See President of US

Extraterritorial jurisdiction: See Long arm statutes

Extreme and moderate realism, 92

Fiat justitia, ruat coelum, 112
Finland, hopeless resistance against 1940 USSR invasion, 190
FM 27-10, treatment of deception under, 195, 230-231
Fomenting civil strife, prohibition under Article 4 of UN Charter, 57
Ford, Gerald (President of US), acceptance of principles of War Powers Resolution, 187
Foreign Assistance Act, Hughes-Ryan Amendment to, 328
Foreign jurisdiction
legal analysis of acts violating laws of, 284, 297-298
nationals abroad, defense of: See Citizens and citizenship

367


Lord 271

information, civil administration or civil affairs, and security assistance. Experience
indicates that U.S. civilian organizations are unlikely to provide adequate support

* for these functions in low-intensity operations; at the same time, though typically
neglected by military organizations, they can and have been effectively performed
by them. In its recent campaigns in Panama and the Persian Gulf, the American
military turned in highly creditable performances in the areas of psychological
operations and civil affairs, in spite ofsome problems in interagency coordination,
Notwithstanding a recent failed experiment in the area of military human
intelligence (HUMINT) collection, it can be argued that such a capability
remains an important desideratum. As regards security assistance, there is at least
a respectable case to be made for removing primary responsibility for it from the
State Department and giving it to the Department of Defense.

A few remarks need to be made concerning the changing face of low-intensity
warfare in the post-Soviet world. The new international situation clearly alters
American requirements in this area in fundamental ways. The delinkage of small
wars from Soviet global ambitions that has been taking place over the last several
years means that the U.S. will be worrying less about deep involvement in
protracted revolutionary warfare in the developing world. In general, the military
dimensions of U.S. involvement in such conflicts will probably decrease, while
other dimensions (notably law-enforcement) will become more prominent. As
a consequence of this, the center of gravity of low-intensity warfare, properly
speaking, will shift from insurgency/counterinsurgency to contingency opera-
tions, both violent and otherwise. This development will provide a welcome
opportunity to reformulate a doctrine of low-intensity conflict that more clearly
defines the operational spectrum and distinguishes and assigns bureaucratic roles
and missions. And it may well favor the approach suggested here of expanding
military responsibility for key political-military missions.

The world we are now entering holds many question marks, and is plainly
going to force a rethinking of many of the most cherished assumptions under-
pinning American national security policy. This kind of world is bound to have
a corroding effect on our strategic culture — and thereby offers a unique
opportunity to free ourselves from some of its shackles,

*Dr. Cares Lord is a Distinguished Fellow at the National Defense University.


50 Legal & Moral Constraints on Low-Intensity Conflict

that we do as little long-term damage to the legal system as possible. Breaches of
the law should not be undertaken lightly—they should be limited to the least
possible violation of the law that is consistent with protecting the vital interests
of our country. We should not twist the rules to pretend to justify unlawful
conduct.

If the United States does at some point find it necessary to step outside the
current regime of international law to deal effectively with a particularly heinous
Jawbreaker, it is imperative that we do everything reasonably possible to explain
our actions and reaffirm our strong commitment to the principles of international
law. We should at the outset acknowledge openly that “special circumstances”
have required us to depart from accepted rules of behavior to safeguard fun-
damental national security interests that have been endangered by the flagrantly
unlawful conduct of another State. Such candor is greatly preferable to the
pretense that our actions can be somehow reconciled with established norms of
behavior among States, which could pave the way for an undesirable change in
the rules of international conduct. The U.S. intervention in Panama in December
1989 may provide an example of how not to handle the “special case” situation.
This issue will be discussed below.

Considerations of Equity

Related to this kind of extraordinary situation is the question of equity. Among,
the three primary (and co-equal) sources of international law recognized by
Article 38 of the Statute of the International Court of Justice are “the general
principles of law recognized by civilized nations,” and both Judges on the Court
and leading scholars have recognized that—in the words of the late Wolfgang
Friedman—“equity is part and parcel of any modern system of administration of
justice.”"”

The principles of equity may provide some legal basis for the United States
to deal with radical regimes or aggressor nations outside the normal rules of
international behavior. When Japan invaded Manchuria in 1931, Secretary of
State Henry Stimson announced his “Stimson Doctrine” which was subsequently
embraced by the League of Nations and a large number of legal scholars. In
essence, it provided that the wrongful territorial gains of illegal aggression would
not be recognized by the law-abiding world. I believe that the so-called “Reagan
Doctrine” was, in effect, a corollary to the Stimson Doctrine, in that the United
States refused to give regimes which had recently come to power in flagrant
violation of the use of force provisions of the Charter, or which were engaged
in flagrant violations of those provisions in an effort to overthrow other
governments, the normal protections provided by international law to law-abid-
ing States.


36 Legal & Moral Constraints on Low-Intensity Conflict

Although it had few equities in the case, the distraught German government took
the only action remaining to it to prevent the extradition of Hamadi to the United
States: it decided to prosecute him in Germany.

But the tale did not end even there. When it became clear that the evidence against
Hamadi was overwhelming, the German government suggested to the United
States that Hamadi may not have been an adult when he hijacked TWA 847—that
is to say, he was not 21 years of age at the time. This is a crucial distinction in
German law, because if he was not 21 at the time of the crime he could have been
sentenced as either a juvenile or an adult. Once again, to the dismay of the
Germans, the United States easily proved that Hamadi was 21—albeit just
21—when he hijacked the plane. That’s when the German government, grasping
at straws, suggested that he might not have been 21 when “he first thought of
hijacking the plane.” To make a long story short, Hamadi was convicted of the
crime—thanks to a courageous German prosecutor and court composed of three
judges and two lay jurors—and sentenced as an adult to the maximum penalty
permissible under German law.”

In contrast to this typical “old thinking” among many international lawyers—
and governments, I believe that, in reality, when faced with an ongoing pattern
of aggressive attack, it is certainly within the right of individual and collective
defense to take necessary and proportional actions to effectively end the attack,
whether those actions are overt or covert.”! This right of defense is classic
international law, not the fashionable contemporary inversion of this principle.
Indeed, if we are serious about peace in our time, it is as incumbent upon the
international system as a whole to ensure effective deterrence against the low-in-
tensity spectrum, and, for example, against Libyan terrorism worldwide and a
continuing pattern of Iranian-encouraged hostage-taking, as it is to deter Korean
War or Gulf conflict style armored invasions.

IV. Recommendations for Strengthening the
International Legal System to
Deal More Effectively with Low-Intensity Aggression

Recommendations for strengthening the international legal system to deal
with low-intensity aggression follow clearly if we have an accurate model of the
most serious international conflicts. Thus, all of the following suggestions should
be useful, as opposed to approaches that may make us feel virtuous but in the
real world have little effect on promoting peace. These recommendations
construct, in many respects, a prescription for promoting peace - - in so far as
‘we can - - in our time, and as such, may be thought of as helpful in promoting
a “new world order.”

A. While seemingly “weak,” one of the most powerful foreign policy
iatives for the democracies is to systematically “engage” totalitarian regimes
with the fundamental principles of the rule of law and democracy. The recent
“rule of law” Charter of the Copenhagen round of the CSCE process points the



Weigel! 261

But since these are dying institutions (demographically speaking), their impact
on the public argument is likely to be minimal in any case.

The Gulf crisis was the occasion for the growing part of American Protestan-
tism— the “evangelical” world which is itself complex amalgam of doctrinally
conservative mainline dissidents, findamentalists, and charismatics — to enter the
foreign policy debate on explicitly just war grounds for perhaps the first time.
The key group here is what we might call, broadly, the “conservatives”: the
Southern Baptist Convention, and the evangelical (and doctrinally serious)
remnants of the Presbyterian, Methodist, and Episcopal churches. There is
considerable agreement among these parties on several points: that the quietism
that marked the evangelical churches from the days of the Scopes trial to the
mid-1970s is inappropriate for Christians; that the Christian church has public
obligations larger than its obligation to help form the consciences of its con-
gregants; and that there is no developed evangelical social ethic capable of
sustaining this new public engagement in an intellectually serious way. Thus,
during the Gulf crisis, one found the “conservatives” beginning to grapple with
the just war tradition as a moral template for thinking about public policy, in
active conversation with Catholic and secular just war scholars. This is a
development of potentially historic importance for the reinvigoration of just war
thinking in American Christianity, given the fact that conservative or evangelical
Protestantism has supplanted the traditional mainline/oldline institutions as the
center of demographic gravity in the churches of the Reformation in the United
States. If followed through, this new evangelical Protestant interest in the just
war tradition would certainly play a significant role in shaping the moral-cultural
environment in which American policymakers operate.

The future of the Catholic debate is difficult to discern. The Catholic bishops’
record during the Gulf crisis was considerably better than that of their NCC-USA
conferees. The bishops’ congressional testimony was built around the classic just
war criteria, and in that respect, the bishops helped deepen the public moral
argument. [They most certainly did not, as some of them insisted, introduce the
moral element to the wider public debate; the moral argument was alive and
(reasonably) well from the outset, as anyone with a car radio and the patience to
listen to talk shows could readily attest.] On the other hand, the bishops’
testimony was also driven in part by certain readings of the political situation in
the Middle East that proved to be sadly mistaken: a pattern of analysis that was
sadly reminiscent of the bishops’ fundamental misreading of the politics of U.S./
Soviet relations in the 1980s.

In the short term, and in the wake of Desert Storm, the future of the American
Catholic debate will probably center on two issues, one of which has serious
implications for low-intensity conflict planning. There has been much debate in
Catholic circles since Desert Storm about the degree to which U.S, military
policy in the Gulf observed the principle of proportionality; the focus here tends


Johnson 157

aims to provide an ideological justification for the use of military force against
international terrorists. Secretary Weinberger’s position is much more narrowly
focused and pragmatically oriented. Shultz appeals to high national values such
as freedom, international security and stability, resistance against aggression,
human decency and peace. Weinberger concentrates on procedures our govern-
ment has employed to foster these values: using force only in defense, ensuring,
the appropriateness of the means to the cause, securing public and congressional
support for the use of force, and verifying that all means short of force have no
likelihood of success. Both positions fit within the just war tradition despite their
differences, but their divergent approaches remind us that the formulation of
policy is best pursued as a debate. As an evocation of values fundamental in just
war tradition and American society, Shultz’s approach has great appeal; yet
without the procedural restraints imposed by Weinberger’s approach, the result
might well be a national bellicosity that would submerge those values. Thus, in
practical terms the “Weinberger doctrine,” as it has come to be called, is a much
better statement of policy for guidance in the commitment of US forces in
low-intensity conflict situations.

My final point is that when just war tradition is applied in specific ways to
concrete contemporary concerns, one should expect to notice some differences
from classical expressions of the content of the just war categories. This follows
from the fact that both the contemporary and the classical reflect their own.
historical contexts. But because the classical meanings attached to the just war
criteria reflect a much broader historical context and encompass a wide range of
practical moral experience and reflection, they provide a basis for critical
assessment of the contemporary expressions. From a classical just war perspective,
for example, the Weinberger doctrine could profit from clarification in virtually
every category. Should the use of “defense” be taken to include the two
additional just causes of classical theory: punishment of wrongdoing and retaking
something wrongly taken? Should not “right intention” also be correlated with
the goals of producing peace and fighting according to the jus in bello limits? On
“right intention”, Weinberger’s position, calling for an assessment of whether
non-forceful means are ever likely to work, is a far more adequate reflection of
the classic just war tradition than, for example, the position taken by the American.
Catholic bishops and other religious leaders, who read the last resort condition
as requiring that all possible non-forceful means be actually tried and found to
fail before resort to force is justified.

Insum, the Weinberger-Shultz debate of the mid-1980s provides an edifying
example of the application of just war reasoning in contemporary policy
language. These cases provide a model for evaluating the faithfulness of other
policy statements and debates to the just war tradition.

2. Choosing to Use Military Force Against a Low-Intensity Conflict
Adversary: the Relation of Moral Authority and Sovereignty in Actions


376 = Index

Manuals or books on war, just war tradition in, 152-153, 155, 192-193
Mao Tse Tung: See China
Marcos, Ferdinand, covert operations in Philippines, 327
Mayaguez incident, 310
Means mala in se (evil in itself), jus in bello applied to, 164-165
Media: See News media
Medieval history: See Middle Ages
Membership in UN, effect of absence of, 67
Mexico, US cavalry’s pursuit of “Pancho” Villa, 72
Middle Ages
See also specific matters
contemporary circumstances resembling, 215
“deceptive peasant,” fear of, 166-167
roots of just war tradition in, 147-151, 158, 171-172, 215
‘wrong intention, fighting with, 164
Middle East
See also specific matters
history of US policy in, 119
‘Muslim religion: See Islamic religion
Military force
assassination, military commander as legitimate subject of, 143, 273-274
borders of another state, crossing of: See Borders or frontiers
contemporary state of military establishment, state of, 269-271
coordination among civilian and military security forces, 267-271
effect of US military might, 120
just war tradition: See Just war theory of tradition
Milosevic, Slobodan, covert nature of operating, 16
Moderate and extreme realism, 92
Modern liberal democracies, difficulties of, 10-20
Mohammad Zia, assassination of, 327
‘Molina and Soto, 150
Monomaniacal states: See “Crazy states” factor
Monroe Doctrine, Jeffersonian ideals affecting application of, 46, 124
‘Moral justification and morality
American history, effect of, 287-288
“Clausewitzian” center of democracy, maintaining public support as, 205, 207, 233, 234, 236, 267,
288, 300, 335-336
covert activities, 283, 289-290, 293, 329-330, 338-345, 347
innocent lives, moral culpability for sacrifice of, 104
international law distinct from morality, 241
James, Henry, 300
just war tradition, moral constraints on low-intensity conflict, 145-248
American legal and moral thought, 151-154, 292-293
national security interest as standard, 279
nature of moral issues, discussion, 314-315
particular or universal nature of ethical theories, described, 111-113
policy-making: See Policy-making and policy language
politics and morality, pairing of, 252, 288
post-cold war world, US moral-cultural environment in, 251-264
realism, types of, 90-96
sovereignty, support for, 88-89, 105
universal set of global values, evolution of, 221-222
Mujahedin: See Afghanistan
Multilateral responses to aggression
See also Unilateral responses to aggression
Security Council: See Security Council of UN
self-defense, multilateral approaches to, 48-49, 168
Murder


Turner 85

93, 12 id, at 23,
94, 2U.N. SCOR (147th and 248th mtg, at 1120-1121 (1947), quoted in, Military and Paramilitary Activities
(Nicaragua v. U.S.), 1986 IL.CJ. at 335 (Schwebel, J., dissenting),
95. 12 WHITEMAN DIGEST 96.

96, “Measures taken by Members in the exercise of this right of self-defense shall be immediately reported
to the Security Council,” U.N. CHARTER Art. 51.

97. OPPENHEIM, supra n. 26 at 276.

98. See, e.g., SORENSEN, supra n. 76, at 764,

99, See infra n. 117-19 and accompanying text.

100, BRIERLY, supra n. 49, at 405.

101, FENWICK, supra n. 41, at 275; OPPENHEIM, supra n. 26, at 269.

102, OPPENHEIM, supra n. 26, at 256-57.

103, Id, at 259-62.

104, SORENSEN, supra n. 76, at 775.

105. In the absence of clear negligence, there is no general duty for States to insure that, natural
catastrophes likes fires and floods which begin in their territory do not spread across frontiers into
neighboring States.

106, One of the fundamental elements for establishing statehood is that a government exercise control over
the territory it claims to govern.

107, LUNG-CHU CHEN, supra n. 58, at 321.

108, Id, at 322,

109. “This was the crux of German policy in the final days of the crisis—to delay German war preparations
until Russia had announced a general mobilization, and then to blame Russia for starting the war that Germany
now sought, The purpose was both to persuade Britain to remain neutral, since it was understood that British
policy would never back Russian aggression, and, more crucially, to unify the German People.” Glynn, The
Sarajevo Fallacyp—The Historical and Intellectual Origins of Arms Control Technology, The National Interest 23 (Fall
1987).

Do. HENKIN, supra n. 79, at 141.

114, Id, at 142,

112. “[A]ny preventative, anticipatory or pre-emptive use of force prior to the occurrence of an armed
attack cannot be regarded as action in self-defense.” SORENSEN, supra n. 76, at 767.

113, Id. at 773-74. This exception does not apply in the case of easily identifiable commercial aircraft.

114, After all, a mere trespass would not normally justify the use of military force against a foreign
national or vessel.

115, SORENSEN, supra n. 76, at 78. Professor Sorensen nevertheless reaffirms his view that the Charter
‘outlaws anticipatory self-defense, and—other than acknowledging a State’s right to complain toan international
institution that it is about to be destroyed—concludes that the problem may be “insoluble.”

116. For a discussion of this case, see OPPENHEIM, supra n. 26, at 268-69.

117. BRIERLY, supra n. 49, at 406; LUNG-CHU CHEN, supra n. 58, at 321.

118, Quoted in BISHOP, INTERNATIONAL LAW 918 (3d ed. 1962).

119. On humanitarian intervention, see Lillich, Humanitarian Intervention, in MOORE, LAW AND CIVIL
WAR IN THE MODERN WORLD 229 (1974); FENWICK, supra n. 41, at 287-89; BROWNLIE, INTERNA-
TIONAL LAW AND THE USE OF FORCE BY STATES at 338-42 (1963).

120, 1 OPPENHEIM, supra n. 26, at 280.

121, Prior to the seventh (1948) edition of this work, Oppenheim expressed doubt “whether there is really
a mule of the Law of Nations, which admits such intervention. . . .” Id. at 279 n. 2.

122. SORENSEN, supra n. 76, at 758,

123, Id, at 759.

124, RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS OF LAW OF THE UNITED STATES
$703, Comment e.

125, This list was quickly drafted as a vehicle for discussion, and is not presented as a finished policy
statement,

126. I use the word “containment” here despite the fact that the “roll back” nature of some elements in
recent USS. foreign policy (i.e., the “Reagan Doctrine” as applied to Afghanistan, Cambodia, and arguably
even Angola and Nicaragua) differed from the traditional reactive policy of Kennan, NSC-68, and most who
came after them. In my view, a critical factor in the collapse of the Soviet Union was the firm foreign and
defense policy of the Reagan Administration. There is growing evidence, for example, that the Strategic Defense
Initiative was perceived as such a potential threat by Soviet leaders that it left them feeling hopeless in the
long-term. The “Reagan Doctrine” served both to divert important Soviet resources from domestic problems
and to give Moscow a “stake in the game” of international law.



Panel Discussion 243

South Vietnam. I wasa little bit nervous now about us exporting revolution, but
okay.

PROF. TURNER: But defensively there’s a difference.

PROF. O'BRIEN: Yeah. All right.

But time went on. Year after year, and I didn’t have the impression that the
number of Nicaraguans entering into El Salvador was all that great. In just war
terms, this raises questions of proportionality. Secondly, the Contras did precious
little. They were kind of'a joke. Their operations were rare and apparently didn’t
amount to very much, Over time it appeared to me that this was a very dubious
approach, Then the third piece, I don’t know quite how this fits in, but I was
very unhappy with the Reagan administration’s apparent claim that they didn’t
intend to overturn the Sandinista regime—which seemed absurd. What else were
the Contras doing? I don’t think they had in mind a coalition government or
something of the kind.

PROF. TURNER: But you're not arguing that it’s impermissible to use
defensive force against that kind of armed attack?

PROF. O’BRIEN: Not in principle but it’s a judgement call.
PROF. COLL: Admiral Harlow.

RADM HARLOW: At your request I do have a couple of comments on the
practical application of these rules for the United States in the decisionmaking
process.

One thing bothered me and that is the lawyers arguing about what is lawful
and what isn’t lawful. It’s technically sterile for us to argue that certain actions
that have been undertaken by significant actors on the international system are
illegal. When they occur they have the effect, perhaps difficult for us to admit,
of changing the law, As far as the practice of law is concerned, the difficulty arises
not so much in the conduct of war. I think that the rules are fairly clear, the
manuals are fairly clear, and the wars are fought in accordance with the standards
that we believe in. The difficulty arises on this issue of when to resort to armed
force. And as was pointed out, these considerations often hinge on points of fact.
Particularly in the low-intensity area, we're talking about limited intelligence
anda shortage of facts. So it becomes impossible for a lawyer to seize upon factual
fragments and say, this is legal or illegal.

Having said that, it’s my observation that people in command centers and
senior officials carry their own baggage with them, a collection of moral, ethical
and religious convictions. There is something in the American gut that acts as a


10 Legal & Moral Constraints on Low-Intensity Conflict

to his Council of State, though not to his diplomats, that the negotiations’ chief
purpose was to lull England into slackening its own military efforts.

The most fertile soil for unconventional warfare is an international system
where the sense of membership in a society of States bound by certain common
tules and values has been gravely weakened. That was true of Sun Tzu’s China,
Kautilya’s India, and Europe in the second half of the sixteenth century. The
bitter religious antagonisms between Catholics and Protestants, and the rise of
new and powerful nation-States eager to assert themselves on the stage of
international politics had helped to sunder the fragile sense of community
inherited from the Middle Ages. Religious and political differences were per-
ceived as more significant than common values and interests, and remained so
until well into the next century when the Peace of Westphalia (1648), acknowl-
edging the exhaustion into which all the great powers had sunk by virtue of the
Thirty Years War, put to rest the religious struggle by formalizing the principle
of “cuius regio, eius religio”. The signatories of the Peace also recognized that,
despite their differences, they were bound into a society of States by a common
Christian culture, a developing system of international law, and the principle of
the balance of power.

Itis interesting to note that the incidence of unconventional warfare in Europe
fell markedly following 1648 and did not return to the high levels of the second
half of the sixteenth century until well into our own times. The breakdown of
European international society that accompanied the First World War; the
subsequent appearance of ideological divisions, rivaling the earlier religious
hatreds, in the form of Communism, Fascism, and Nazism; the emergence of
powers such as Hitler’s Germany and Marxist Russia unwilling to accept the
cultural values of the liberal democracies and ready to exploit the principles and
tules of international law for the purpose of subverting and overturning the
existing balance of power; the evolution of the European-dominated interna~
tional society of the nineteenth century into a highly diverse multicultural system
of States; and the nearly universal recognition of the increased economic costs
and politico-military risks of conventional military force; all these factors
provided an ideal setting for the recrudescence of unconventional warfare in the
twentieth century.

Liberal Democracies and Unconventional Warfare.

The traditions and institutions of liberal democratic societies render them
vulnerable to unconventional warfare, and make it difficult for them to under-
stand its nature and develop appropriate counter-strategies. Modern liberal
democracies are the product of a set of traditions and ways of looking at the
world, spanning several centuries, that in turn were shaped by Christianity,
liberalism, and capitalism. From Christianity the modern democratic State has


212 Legal & Moral Constraints on Low-Intensity Conflict

natural product of the tradition’s ability to absort contemporary moral concerns
and modes of argumentation. As an example of this, Professor Johnson cites
among others, the question of defense. In his vievy, the just war tradition includes
not only self-defense, but also very importantly, the notion of recovering
something wrongly taken, and the principle of punishing the wrongdoer. I find
that an important and very interesting observation and on a practical level, I
would like to point to its relevance in justifying counter-terrorist policy.

‘When the United States carried out its military raid against Libya in 1986, it
seemed to me that we went through tremendous contortions intellectually to
justify it solely as a self-defense operation. And, whenever the question was raised
as to whether this was only a self-defense operation, our international lawyers
‘were most insistent that self-defense was a complete account of our motivations
for the raid. Meanwhile, if you had asked most Americans what the goals of the
operation were, they would have included self-defense and implicitly deterrence,
but also they would have referred to punishment of wrongdoing. They would
have said, “we bombed Qadhafi not only because we need to defend ourselves
against him, and not only because we want to deter him from future acts, but
also because it is morally sensible and legally reasonable to punish him for what
he has done.” The debate, of course, will continue for quite some time to center
on the issue of how broadly we define the concept of defense.

Professor Johnson also focused on the question of moral authority and
sovereignty. He was careful to define sovereignty in the light of the notion of
right authority. Only those civil authorities with no formal superior could
authorize the use of force to protect the community from domestic and foreign
threats, to defend it from lawlessness and to promote the values of good social
order. And the limits on that use of force sanctioned under right authority, were
to be, as he puts it, practical politics and the power of others. From that, Professor
Johnson deduces that in responding to low-intensity conflict, the authority to
use force would extend even across transnational borders, and that in a sense, the
same standards that apply to the use of force in general, should apply to resort to
low-intensity conflict.

Professor Johnson discussed the traditional criteria for a just war. These
requirements include the existence of a just cause, the presence of right intention
anda condition of last resort. I think he quite properly avoided defining this latter
category as the satisfaction of a formal requirement that all available remedies
have in fact been exhausted. He opted instead for an assessment that there is
nothing more to be gained from waiting. This was particularly relevant during
the Gulf War. Terry Nardin and I have had many debates on this question. He
and some of my colleagues on the Carnegie Council have argued that we should
have given sanctions more time. My view, and I suspect Jim Johnson’s, though
if he disagrees, he may correct me on the spot, was that we really were not
required by just war tradition or by moral reasoning, or moral reasonableness, to


220 Legal & Moral Constraints on Low-Intensity Conflict
FR. WINTER: No. I agree. I agree.

JUDGE SOFAER: Then can the only reason for that be that we also have
nuclear weapons? We intuitively, morally—

FR. WINTERS: I understand, but that intuitive, moral sense gets us off the
hook. I think if you want to look at this question from the point of view of
philosophy, we have to look at the cases of Israel and Iraq. Now, I realize this
may be extremely contentious, I’m sure it’s contentious, but that’s what I get
paid for. I have no confidence, none whatsoever, that Israel will never use a
nuclear weapon. I would have even less confidence that Saddam Hussein will not
use his, but if I were morally certain that I could rnove against Saddam Hussein, I
would feel compelled morally to say the same thing about Israel, which I’m not
willing to say, and I don’t know how to deal with that theoretically. Happily, it’s
not my field. But certainly as an intellectual conundrum, it’s very substantial.

PROF. COLL: Professor Wakin.

PROF. WAKIN: Could I pursue this business of cultural specific justice just
a little bit more? I’m just a little puzzled. When you say justice would demand
that we leave Iraq alone if we leave Israel alone, from what culture are you
speaking? You see the issue that I see? In order for you to say that, you must
have in mind some sense of justice that goes beyond the culturally specific sense
of justice. That’s number one.

FR. WINTERS: What I’m thinking of is a very primitive sense of justice.
That is to say, one thinks it unjust and one is fairly confident. If one tracks my
publication record, one can see that this is not a new opinion for me. One will
see a consistent and unambiguous expression of the position that any military
use of nuclear weapons is wholly unacceptable morally. I was in that position
when America was the only nuclear power and I still feel exactly the same way.
Perhaps more strongly about Iraq and Israel. So I would say there is no moral
justification for a policy that contemplates the use of nuclear weapons in military
fashion for any nation and I think that that is one of the very few things that
could be acknowledged by any culture.

PROF. WAKIN: That's a universal judgement, that’s not culture specific.
FR. WINTERS: Yes. There are some universal judgements.

PROF. WAKIN: I would like to ask about some others.


6 Legal & Moral Constraints on Low-Intensity Conflict

adversary into passivity by means of a nonaggression pact or an agreement
defining spheres of influence.” As Adda Bozeman has argued, with reference to
Kautilya’s India,

‘What we have . . . on this subcontinent and in hinduized Indo-China and
Indonesia are vast fields of interstate relations in which each king, guided by the
principles of artha, was forever trying to “acquire and maintain the earth,” i.e., to
outwit and conquer his neighbors. This unabashed philosophical and actual
commitment to power and victory, whether rendered through the symbolism of
geometry or that of chess ~ pursuits in which Indians excelled - was obviously
incompatible with anything resembling international law or international organiza-
tion as these terms are understood in the Occident. The only kind oflaw governing
this Oriental state system was the law of the fishes (matsya nyaya), in accordance
with which the big fish eat the little fish, might is above right, and right is in the
hands of the strong. Inequality was postulated as the everlasting condition of
political existence, power as the only measure of political worth, war as the normal.
activity of the state, peace as a lamentable condition of inferiority, and espionage
as the most reliable, indispensable shield of royal fortune. Indeed . . . the skills of
intrigue, tabulated and annotated under such titles as “Government based on
Deceit” and “The Administration of Subversion,” were more highly prized than
material power. .

Sun Tzu’s The Art of War.

While uncertainty surrounds its onigins, Sun Tzu’ s The Art of War was
probably written between 400 and 320 B.C. * The treatise’s counsels to the ruler
can be read at two levels: the tactical one, dealing with particular military
stratagems for defeating an adversary, and the strategic and political one, aimed
at shaping a long-term statecraft to bring about the enemy's gradual debilitation
and eventual surrender. Some of the twentieth century’s most outstanding
revolutionary leaders, such as Mao Tse-Tung and Che Guevara, indicated that
they profited greatly from reading The Art of War at both levels.

Sun Tzu shared Kautilya’s basic assumptions about the nature of international
relations. His intimate acquaintance with the dynamics of the Chinese State
system led him to see war and violence as the norm rather than the exception,
peace as little more than a truce of convenience, and cunning and deception as
essential prerequisites to survival in a dangerous world. In the state of “violent
peace” which Sun Tzu perceived as the regular condition of international affairs,
unconventional warfare was a vital instrument of State policy.

Like Kautilya, Sun Tzu recognized the high costs and risks of conventional
war. Many of the Chinese States of Sun Tzu’s time were fairly evenly balanced
in their power capabilities. Large armies were difficult to raise, to train, to
maintain in operational readiness over long periods of time, and to deploy across
long distances over arid or mountainous terrain. Thus, any attempt to defeat an
enemy by annihilating its armies in open combat and storming its cities was


Teson 89

4) The operation does not otherwise violate human rights,
5) The operation is necessary and proportionate.

6) The modus operandi is not such that would undermine the flourishing of
civic and personal virtues that a liberal democracy must encourage.

The central ideas are embodied in conditions (1) and (3). Whether or not a
government should engage in a particular low-intensity operation depends
absolutely upon the justice of the cause, and relatively upon the legitimacy of
the social contract in the target State. Only legitimate governments have moral
standing to conduct these operations (condition (2)); but they may not proceed
when the target State is fully legitimate (in the sense explained below.) Even
when the target State is not legitimate, those performing the low-intensity
operation must make every effort to respect the individual rights of the persons
that reside in the State. Condition (5) (necessity and proportionality) is a feature
of the conduct of war generally. Finally, even if all the foregoing conditions are
met, some modi operandi may be so odious that they should be avoided because
performing them would undermine the civic and individual virtues that a liberal
democracy must cultivate—in other words, those methods may have a highly
corrupting effect. Thus, virtue theory provides an important supplement to the
liberal theory upon which this paper rests.

Il. A Definition of Low-Intensity Conflict

Before tackling our substantive problem, I would like to narrow the kind of
low-intensity operations that will be discussed in this paper. Writers have defined
low-intensity conflict in a noticeably broad way, as including everything short
of “total” war.’ The first problem with this broad definition is that limited uses
of conventional force are best analyzed as part of just war theory.!° For example,
some scholars have treated the 1986 U.S. bombing raid of Libya as an instance
of low-intensity conflict because it was a limited operation short of “total” war.'t
Of course, this is a semantic issue. Yet it is best to treat that incident as an instance
of the use of conventional force by a State against another State, much in the
way international lawyers treat it.'? The moral justification of limited conven-
tional war is no different from the moral justification of war generally, so no
additional moral analysis is needed. I will not, therefore, include instances of
limited conventional war (the U.S. operations in Grenada and Panama come also
to mind) in my analysis.

The low-intensity operations that pose distinct ethical problems, and those
with which I am concerned here, are those that do not amount to overt
conventional war, limited or unlimited. However, even after excluding


Coll and Shultz 339

An understanding of the nature and requirements of statesmanship has been
the subject of inquiry since ancient times. It was one of the principal concerns
of classical political philosophy. For example, Aristotle addressed the issue in the
Ethics, He observed that the great statesman is the politician who demonstrates
the capacity to act pridently on behalf of the State. However, for Aristotle,
prudence (practical wisdom in politics) is not understood in the same way it has
been treated by many postwar realists. Prudence does not override morality,
ethics and values in the name of the protection of the national interest. Prudence
is not synonymous with successful pragmatism, cunning, or cleverness. Since the
political basis for a nation is a set of shared principles, the action of the statesman,
for Aristotle, is the prudential application of these principles to actual situations
in the real world.>* According to Jeffrey Poelvoorde: “each significant action of
the statesman involves a decision about what is required by the moment, what
is permitted or demanded by the country’s principles, and finally, what can be
explained in the name of those principles to the citizens. This is the widest
expanse of statesmanly prudence,” as understood by Aristotle.>>

In other words, the basis for action in the international arena is the defense of
the national interest, not to the exclusion of any consideration of the political
values of the regime, but in light of those very same principles. Prudence and
values are not separated but integrated. Thus, as Alberto Coll has noted, those
who have advanced the idea of normative prudence insist that “it is possible to
bridge the world of morality and that of politics, to pursue and achieve moral
objectives in the political world, even if the objectives themselves have to be
redefined and adjusted in the process.” Within the context of this understanding,
“prudence is not value-free; it remains under the guidance, however ambiguous
and indirect, of moral principles.”56

To develop for the American statesman a set of guidelines for the use of covert
action in ways that take into consideration political values and principles, as well
as geostrategic interests (and threats to them), we first must construct a normative
foundation for those guidelines. To accomplish this we will draw on two moral
and political traditions that have influenced American statesmanship: one, the
classical view of statesmanship as reflected in the writings of Aristotle and
Thucydides; and two, the political principles underlying the founding of the
American regime. These two traditions will supply the basis for the tentative
policy guidelines presented in the final section of this analysis. What we seek to
establish is a “middle ground” for an American statesmanship “that is neither
politically impractical nor morally bankrupt.”>”

The Classical View Of Statesmanship

Classical political philosophy was, in part, concerned with questions of
statesmanship and the ends it ought to serve. Unlike many modern-day realists,




Panel Discussion 293

it nonetheless has been a thread that has woven itself through a lot of American
thought for many years. An integral part of this thinking is that war is an irrational
act and that when it does become inevitable, should be prosecuted vigorously
with an insistence on an unconditional peace. He points out correctly that the
ambiguity of low-intensity warfare rests uneasily with these principles.

Ken also described some of the moral dilemmas that we face as a nation with
regard to low-intensity warfare. He pointed out, among other things, that
Americans are suspicious and worried about covert operations. Just as we tend
to be leery of things done behind our backs, we also look askance at deceptions
practiced upon citizens of other countries,

This is my experience also. It is true that in the context of crisis management,
there is little time for moral introspection. Practical considerations—political and
military—are given primary, if not exclusive attention. I have found, however,
that there has been an implicit moral/ethical/legal underpinning to the politics
and programs that were eventually approved and pursued. Hopefully, this
conference can characterize and clarify these underlying scruples. To do so will
significantly contribute to effective U.S. policy formulation and decision-making
in the complex arena of low-intensity conflict.

At this time, I’d ask for comments and discussion from the floor.

MR. MCKEE: Admiral, thank you. Craig McKee of the Bureau of Intelligence
and Research, Department of State.

I thought the presentations this morning were practical and good. I have a
couple of notes on the intelligence process. We find many times that the
enormous “vacuum cleaner” called the U.S. intelligence system actually had the
information we need. The problem is whether it gets to a high point in the
decision-making process quickly enough to matter. Official recognition of a
low-intensity challenge often follows by months or years the time at which an
effective policy might have been developed to meet it. A second point is that
during the last six years a somewhat improved procedure has been established,
as Mr. deGraffenreid mentioned, to handle the findings. The CIA is required to
notify the other agencies ofa proposal, and there’s a time limit under which they
can respond with their own policy recommendations. I don’t know whether it
is that much more efficient, but I think it is an improvement over the earlier
procedures for findings.

RADM HARLOW: I agree.

PROF. FARER: I agreed with much that the two speakers said, and said so
well. There were perhaps three points I thought worth raising.

One has to do with preemption. You didn’t define your concern with
preemption very clearly, Abe. I think you would agree we need to draw some


INDEX
A

Abduction, 274
Abu Jihad (Khalil El Wazin), Israeli assassination of, 195-196, 231
‘Academies of higher American learning: See Educational institutions
‘Ad hoc approach
“exceptions” to UN Charter’s definition of self-defense, 282
low-intensity conflict policy-making executed on, 161
public debate in foreign policy thinking, 263
Adversarial nature of democratic institutions, effect of, 12-13
Afghanistan
covert operations in, 290-291
effect absence of legitimate government, 238
Agency relationship between government and people: See Social contracts
“Aggression
aggressive regime/deterrence failure strategy, 27-39
condemnation of aggression, importance of systemic response of, 27-39
defined, 61-62
democracies, peacefil nature of, 127
obligatio erga omnes, 59
responses to
multilateral: See Multilateral responses to aggression
unilateral: See Unilateral responses to aggression
“Aggression armee”: See Armed attack
Airspace, anticipatory self-defense for violation of, 76
Alcoholic beverages, reciprocity principle affecting regulation of, 47-48, 319
Allende, US role in overthrow of, 124
America: See United States
Anarchy
just war theory, application of, 104
“Peace of God” movement, 158, 215
Ancient Greek states, classical view of statesmanship, 339-342,
‘Anticipatory or preemptive self-defense, 74~78, 293-294
Israeli actions in: See Israel
Libya, 1986 US air strikes against, 299-300
“reasonable” self-defense interpretations, 183-184, 228
self-defense against terrorism as including deterrent attacks, 232
‘weapons of mass destruction, effect of, 128, 294
Antiwar movement aroused by Vietnam, contemporary effects of, 266, 270
Appeal of low-intensity aggression, 60-61
Aquinas, St. Thomas, 150, 171-172, 174-176, 209
Aristotle, classical view of statesmanship, 339-342
Armed attack
anticipatory self-defense, 75
Article 12, right to self-defense against, 57
construed, 64-66, 69, 182-183
drug trafficking equated to, 232
philosophical basis for prohibition against under international law, 109-114
Armed forces: See Military forces
Arrest of criminals from foreign jurisdiction: See Criminal acts and Jaw enforcement
Arthashastra, 4-6,
Asticle 1(1) of UN Charter
purposes of UN stated in, 61
Article 2 of UN Charter
interpretation of, 316-317


Johnson 149

both historically and in the present. When the elements of just war began to
cohere in the Middle Ages, they formed a cultural consensus on the justification
and limitation of conflict. In addition to theology and philosophy, medieval
thinking on just war incorporated chivalric custom and military practice, canon
and civil law, and precedent governing relations among princes.

These contributions can still be discerned in the broader just war tradition,
where each has its contemporary form. In the military sphere, manuals of warfare
prescribe acceptable conduct in battle and stipulate rules of engagement for
specific conflicts. In the legal arena, the corpus of international law guides the
relations of States. In the theological domain, theorists like Paul Ramsey and the
authors of the 1983 pastoral letter of the American Catholic bishops pronounce
on war conduct. And in the academy, philosophers like Michael Walzer and
Elizabeth Anscombe reflect on the relevance of the tradition to current chal-
lenges. In various historical periods, moreover, the tradition as a whole has been
carried forward and developed more in one or another of these areas than in the
rest. In the eighteenth century, for example, the political and military practice
of limited war had a major impact on the entire just war tradition. From the end
of World War I until recently, by contrast, the dominant carrier of just war ideas
was international law. And from the 1960s to the present, systematic religious and
philosophical reflection have regained the primacy of their original influence on
the development of the tradition.

In contemporary usage, the term “just war” is sometimes reserved for the
religious element in this broader moral tradition.' At other times the idea of just
war is associated only with the medieval period in which the ideas and practices
of the tradition first coalesced. The former usage mistakenly restricts the breadth
and diversity of the tradition, however, and the latter fails to take account of its
historical continuity and growth. In summary, then, I view just war tradition as
a great river of morally informed theory and practical reflection in which many
cultural sources mingle. Legal, military, political and philosophical tributaries all
enrich the mainstream of Christian just war thought. I also take a comprehensive
view of the tradition, keeping in mind its classical origins and complex evolution
when applying it to contemporary problems.

Understood in this broad sense, just war tradition has evolved around two
distinct questions: when is it justifiable to employ military force and what limits
or restrictions should govern the justified use of force. The former question has
generated a set of formal criteria for judgment known, in classical terms, as the
jus ad bellum (literally, that which is right or just in resort to war; contemporary
analyst William V. O’Brien calls this part of the tradition the “war-decision law”).
The latter question, in turn, has generated other formal considerations grouped
under the heading of jus in bello (literally, what is right or just within war; O’Brien
calls this “war-conduct law”).> A few comments are needed on the various


Johnson 153

a new style of military manual on war, both in the United States and in other
‘western countries. Present-day American military manuals like the Army’s FM
100-5 and the Air Force’s AFP 110-31 are the latest examples of this approach
to summarizing and regularizing the implications of moral norms that ultimately
trace to just war tradition.

3. The Theological and Philosophical Debate Over Justified War.
Beginning with the groundbreaking work of Paul Ramsey, War and the Christian
Conscience, published in 1961,° sophisticated efforts to explore and spell out the
specifically Christian elements in the just war tradition have figured significantly
in the American religious debate over ethics and war. Seven years later, Ramsey
published The Just War: Force and Political Responsibility,'!© a compilation of
twenty-four essays focusing both on nuclear deterrence and counter-insurgency
in Vietnam. By presenting a reasoned defense for the use of force in Christian
practice, Ramsey’s essays shifted the perspective of the just war debate. Estab-
lishing at the outset that force is a necessary part of politics, he countered utopian
arguments calculated to exclude consideration of the use of force from political
discourse. Ramsey then employed an extensive analysis of the concept of love
for one’s neighbor to meet the arguments of Christian pacifists. He maintained
that the love of a Christian for his neighbor justifies his participation in war at
the same time as it constrains his use of force. Love requires that the Christian
defend his neighbor against unjust attack, employing means up to and including
military force. But Christian love also requires that the innocent be protected
against direct, intentional use of force against them. This latter consideration,
which Ramsey termed the principle of discrimination, is otherwise known as
the principle of noncombatant immunity. By focusing on it as a requirement of
Christian love, Ramsey implicitly made this jus in bello principle the centerpiece
of his own understanding of the just war idea, minimizing the jus ad bellum. This
perspective on what is distinctively Christian in just war teaching continues to
have a great influence in religious debate over ethics and war.

A bibliography of the many works written over the last thirty years that
apply just war tradition to contemporary military issues from a specifically
Christian perspective would include authors such as Childress, Fr. Hehir,
O’Brien, Potter, Weber, and the American Catholic bishops, whose pastoral
letter was the most influential of several official church statements in this
genre. Numerous other writers have also used just war reasoning for pacifistic
purposes, including Hauerwas, Geyer, Yoder, and the authors of church
statements such as the pastoral letter on war of the bishops of the United
Methodist Church. In short, just war tradition, albeit in a form tailored to
specifically Christian concerns, is a central part of recent religious debate over
ethics and war.

In the corresponding philosophical debate, the most prominent figure is
‘Walzer, whose Just and Unjust Wars, published in 1977,"" holds a place of honor


18 Legal & Moral Constraints on Low-Intensity Conflict
The Problems of Impartiality and Politicization.

An effective international legal system capable of providing protection against
aggression requires mechanisms for the impartial evaluation of whatever data the
processes of inquiry supply.”° If the inquiry component of this requirement is
weak, so is that of impartiality. The institutions of international law, like those
of international politics, are hardly impartial. They are affected by the deep
political, ideological, cultural and historical differences that divide international
society. Agreement and consensus may exist on general principles such as the
unacceptability of aggressive force and the legitimacy of defense, but every
particular crisis calling for the specific application of these principles to often
ambiguous and highly controversial situations brings out the profound differences
in interests as well as outlook among the various participants in the international
legal process. International law does not exist in a political vacuum. Its principles
are cited and argued by governments representing specific national interests, by
legal scholars with subjective political sympathies and philosophical predisposi-
tions, and by international organizations whose voting majorities reflect a
particular set of ideological, political and strategic biases.

Undoubtedly, any future efforts to strengthen the role of international law
and the United Nations in curbing aggressive unconventional warfare will have
to come face to face with the problems of inquiry, impartiality and politicization.
It may be that new and creative policies, approaches and institutions can be
developed to reduce the size of these problems and diminish the friction which
they presently pose for the authoritative functioning of the norms against
aggression. Such hope, however, must coexist side by side with a degree of
skepticism. The nature of the international system itself makes it highly resistant
to any such innovative approaches.

The existence of a society of States bound by certain general rules and
reciprocal expectations (a proposition, incidentally, which is not accepted by all
students of international politics) should not confuse us into thinking that there
is such a thing as a single international community. At best, there is in today’s
world a large number of different international communities, each of them
wrapped around a particular set of interests and values, some of them more
inclusive than others, but none truly universal either in membership or in the
scope of its objectives. The lines of membership in these communities are not
always mutually exclusive; they often crisscross. But what does not exist and will
not exist fora long time, despite the abstract language and fervent desires of world
order theorists and many international lawyers, is a single international com-
munity that speaks with one voice and represents authoritatively the widely
diverse communities of interests and values which make up the real world.

For this reason, although international law and organization deserve the
support of liberal democracies, and although it is a morally and politically


Johnson 159

All this historical reasoning provides strong support for the view that just war
tradition allows the use of force on legitimate sovereign authority against the
sorts of adversaries encountered in the context of low-intensity conflict: ter-
rorists, drug traffickers and despots. These are the contemporary analogues of
those medieval predators cited above. Indeed, there is more than a mere
allowance to be found in the historical record: there is unambiguous hostility
toward such threats to good political communities.

Nor, in principle, does the “right authority” to use force to combat such
threats stop at a nation’s borders, so that the wrongdoers in question can take
refuge in an international “no man’s land” or behind the legal wall of another
nation’s formal sovereignty. Force may be employed across borders in cases of
serious threats that can be dealt with in no other way.

Of course, many restraints hedge in the discretionary powers granted by this
view of sovereignty and the use of force. The moral limits encompass all the
criteria of just war tradition. Besides right authority and just cause, these include
right intention, proportionate means and ends, reasonable prospect of success,
last resort, just peace and the in bello principles of discrimination and propor-
tionality. These criteria constrain the use of force in low-intensity conflict just
as they do in cases of conventional conflicts between States.

While unpacking these restraining criteria, one quickly encounters a variety
of concerns peculiar to the contemporary world. In our democracy, government
serves as a trust from and for the people. Without public support for military
action, it has no “right authority” in the just war sense. The Weinberger doctrine
is exactly on target in this regard. This is recognized almost instinctively in
American politics, moreover, as the examples of such recent interventions as
Grenada, Panama, and the Gulf War show in their particular ways.

Even when just cause exists for a particular use of force that enjoys broad
public support, we must address a number of other concerns that are raised by
the classic just war categories enumerated above. Will military force solve the
problem or exacerbate it? (Proportionality of means to ends). Are we ina position
to use force effectively against the threat? (Reasonable hope of success). Might
other means have a reasonable chance of success? (Last resort). Is the result likely
to enhance security and justice for all concerned, or lessen them? (The end of
peace). These questions must be answered anew for every threat that we confront
and be justified in terms that reflect the nature of our political community.

Certain recent developments have begun to influence the extent of national
sovereignty in the sphere of international law. These are, broadly, of two sorts.
On the one hand, the United Nations has been reinvigorated and with it various
smaller multinational organizations ceded some measure of sovereignty by their
members. And on the other hand, an understanding that human rights are not a
matter of national preference has gained international acceptance. Both develop-
ments may weigh against unilateral intervention, and both have in fact lent


260 Legal & Moral Constraints on Low-Intensity Conflict

international force (or, as in the case of certain actions in the old French West
Africa, by the former colonial power). But whether we are thinking of unilateral
or multilateral intervention, we have to think through more carefully, and as a
matter of public moral argument, the question of when, if ever, the gross
brutalization of innocent and defenseless people constitutes a legitimate causus
belli: which is to say, when, if ever, are we morally justified in overriding the
principle of sovereignty and using military force as a means of humanitarian
assistance.

In terms of gauging the public temperature on low-intensity conflict matters,
I would guess that there would be considerable public support (much of which
‘would show an impressive level of moral sophistication) for the proportionate
and discriminate use of U.S. military force as an “energetic” means of enforcing
nuclear non-proliferation: especially if it were clearly understood that other
means of redress had been tried and had failed, and that our action had the support
of the saner elements in the international community. I should think that the
same general approbation would meet the preemptive use of low-intensity
conflict and/or special operations capabilities zgainst known terrorists and
terrorist facilities. I am less persuaded that the country would support an extensive
use of American military force in situations where there is no direct threat to
American interests but in which grave human rights abuses are being systemati-
cally perpetrated. Would the American public support the use of international
forces, possibly including U.S. forces, in such circumstances? Perhaps.

IV. Problems in the High Culture (So To Speak)

If the American people have shown a generally impressive ability to calibrate
the moral and political arguments involved in low-intensity conflict (or in
conventional wars, such as the Gulf War), the same cannot be said for what are
often thought of as the “teaching centers” of our culture: our religious institu-
tions, our institutions of higher education, and the mass media. The continuing
intellectual and moral distress in these arenas will doubtless have an effect on
the “constraints” under which low-intensity conflict policy is developed and
executed.

On the question of the religious institutions: the hard fact is that the just war
tradition as a method of moral reasoning is quite probably taken more seriously
at the service academies and the war colleges than in our largest seminaries.
During the Gulf crisis, the leadership of mainline/oldline Protestantism, as
exemplified by the National Council of Churches (NCC-USA), showed itself
to be functionally pacifist. This was not the pacifism of high moral principle.
Rather it was a political pacifism born of the conviction that American military
power can serve no good end in world politics. One need not look for much
leadership in sorting out the moral questions sketched above from these quarters.


364 Index

legal constraints: See Law and legal constraints,
Construction: See Interpretation or construction
Containment of Soviet imperial expansion as secondary missicn of US, 269
Contingency operations
contemporary shift from insurgency/counterinsurgency operations to, 271
national security apparatus, absence of coordination in, 268
Contracts between government and people
horizontal contracts: See Horizontal social contracts,
vertical contracts: See Vertical social contracts
“Conventional” warfare
Charter of UN, conventional warfare as model in, 4, 15, 227
contemporary US military establishment oriented to, 269-271
distinguished, xv
just war theory, application of, 167-168
sovereignty affected by, 143
state-sponsored terrorism as act of war, 161
World Wars I & I: See World War I; World War IT
Coordination among civilian and military security forces, 267-271
Counterinsurgency or counterintervention: See Insurgency or counter-insurgency
Counter-terrorism: See Terrorism and counterterrorism
Coup d'etat
covert activities, classifications of, 326-327
nature of, xv
use of, 3
Courts
See also specific matters
illegitimate governments, low-intensity conflicts against, 103
Intemational Court: See International Court of Justice
Covert activities, 325-350
American perspectives on, 327-338
Assad as expert in covert low-intensity techniques, 279-280
checks and balances
‘Congressional oversight: See Congressional oversight, this topic
constitutional provisions, 327-328
clandestine operations, distinguished, 276
classical view of statesmanship, covert activities as within, 339-342
Congressional oversight, 289-290, 292, 295-296
Oversight Act of 1980, 286
coup d’etat, 326-327
defined, 325
democratic institutions, difficulties of, 13
discrimination and proportionality standards, 350
foreign policy, conduct consistent with, 332-334
Intelligence Authorization Act, passage of, 281
intelligence-gathering: See Intelligence and intelligence-gathering
Iran-Contra hearings, use of public funds for covert operations, 281, 325, 328
just war doctrine
application of, 276-277
jus in bello, application of, 165-166
meeting conditions of, 239
last resort, 289, 330-332
legal principles of early American law, 327-328, 343-345
legitimacy, 348-349
moral and legal accountability for, 283, 289-290, 293, 329-330, 338-345, 347
“open” covert operations, 333-334
paramilitary assistance, 326
policy guidelines for use of, 345-350
political matters: See Politics and political matters


354 Legal & Moral Constraints on Low-Intensity Conflict

Department of Defense, and to the Assistant Secretary of State for Inter-American
Affairs, and as advisor and instructor for the Police Forces of the Somali Republic.
His published works include Warclouds on the Hern of Africa, The Grand Strategy
of the United States in Latin America, and U.S, Ends and Means in Central America.

Rear Admiral Bruce Harlow, JAGC, USN (Ret) served for 28 years as an
attorney in the Judge Advocate General Corps, USN. From 1981 to 1983
Admiral Harlow served as the Department of Defense and Joint Chiefs of Staff
Representative for Ocean Policy Affairs and Vice Chairman of the U.S. Delega-
tion to the Third United Nations Conference on the Law of the Sea (UNCLOS
Ill). As Assistant Judge Advocate General, U.S. Navy from 1983 to 1985, he
supervised and coordinated a wide range of legal services for the Department of
the Navy. He is currently a consultant to the U.S. Air Force on international
law and frequently lectures at the Naval War College, Defense Intelligence
Agency and the Special Operations School on law of the sea and law of war
issues.

James Turner Johnson is Professor of Religion and Associate in the Graduate
Department of Political Science, Rutgers University. He has served as Director,
US. Institute for Peace (1990-1991), and as a Guggenheim Fellow (1984). His
books include Just War Tradition and the Restraint of War, The Quest for Peace: Three
Moral Traditions in Western Cultural History, and Just War and the Gulf War (with
George Weigel).

Christopher Jon Lamb is Director of Policy Planning for Special Operations
and Low-Intensity Conflict in the Defense Department. Prior to his current
assignment he served as a career foreign service officer in Africa and the
Caribbean. Dr. Lamb is the author of Belief Systems and Decision-Making in the
Mayaguez Crisis and Thinking about Arms Control and Disarmament.

Rear Admiral Irve C. LeMoyne, USN is the Deputy Commander-in-Chief
and former Director of Resources (J8) at the U.S. Special Operations Command.
He began his Navy career with three tours of duty in Vietnam, After attending
Naval Postgraduate School he served on the OPNAV staff as Assistant to the
Special Warfare Mission and Resource Sponsor. He has also served in command
of Naval Special Warfare Group ONE and the Naval Special Warfare Command.
He is a graduate of the Naval War College.

Carnes Lord is the John M. Olin Professor at Adelphi University. He was
Assistant to the Vice President for National Security Affairs from 1991 to 1993,
and has served in other senior positions on the National Security Council staff
and the Arms Control and Disarmament Agency. Dr. Lord has taught at Yale


Panel Discussion 215

PROF. JOHNSON: Let me quote the 1985 definition of low-intensity
conflict from my paper:

Low- intensity conflict is a limited political and military struggle for achieving political,
social, economic or psychological objectives. It is often protracted and ranges from
diplomatic, economic, and psychosocial pressures through terrorism and insurgency.
Low-intensity conflict is generally confined to a geographic area and is often
characterized by constraints on the weaponry, tactics and the level of violence.

My position in the paper is that we’re not talking about a phenomenon. We're
talking about a range of phenomena and it is simply an accident of history that
‘we are now confronted with it. These phenomena don’t fit very well in the
traditional categories as we have become accustomed to using them. So we have
to ask ourselves how to apply those categories, or indeed, what other categories
might apply.

On the question of whether international law is well-equipped to deal with
low-intensity conflict, I have given a somewhat wooden picture of international
law in my paper and, in fact, I personally tend to be much more optimistic about
its flexibility, but international lawyers differ on this point.

As for the relevance of just war tradition to low-intensity conflict, by referring
back to the “peace of God” movement and the original impetus that gave birth
to the idea of right authority, I was trying to show that the genesis of the tradition
‘was not concerned with fighting between sovereigns. The tradition really began
to coalesce around the social problems caused by various disorderly elements that
threatened medieval society. And so, I do think that there is something to be
learned from reflecting on this tradition for low-intensity conflict. I think that
the sorts of phenomena that we think of today as involving the potential for
low-intensity conflict are, in fact, very much the same sorts of experiences that
in the Middles Ages gave rise to what was then a rather inchoate set of traditions,
which was crystallized by reflection in a coherent doctrine on just war.

FR. WINTERS: If] could respond to the second of those questions, whether
just war tradition is relevant to revolutionary insurgency.

I think it’s quite striking actually. I mean, before there was a fully developed
theory of sovereignty in the just war tradition with St. Thomas Aquinas, there
was a 500 year old tradition about revolution. The tradition about revolution
within what then became the just war tradition originates at least as early as the
eighth century. Now, that’s important to the present discussion because many
American debates about reform in other countries assume that we will have to
provide the impetus for it. The just war tradition insists that reform is an
indigenous capacity and an indigenous obligation. Therefore, the fact that we
know there should be reform somewhere doesn’t mean that America should


Teson 99

justification it offers for the legitimacy of the State generally. Isuggest that a State
is internationally legitimate when it is internally legitimate.>*

The best way to approach the question of the legitimacy of the State is to
distinguish between the horizontal social contract and the vertical social contract?”
Citizens of the State are bound to one another by the principles ofjustice that underlie
a just constitution: this is the horizontal social contract, Meaningful social coopera-
tion requires the creation of government, of institutions and offices to which political
power is attached. These offices are occupied by persons who are democratically
chosen by the citizens of the State. These persons enter, therefore, into an agency
relationship with the people who have elected them. This agency relationship is the
vertical social contract. Ina democracy, the governments accountable to the people
and has to remain faithful to the terms of the vertical contract.

From this it follows that illegitimacy may take place in two ways. First, the
vertical contract may be breached, in which case the government is illegitimate.
This occurs when the government is unrepresentative, or, even if it was originally
representative, it engages in serious human rights violations. The government
has lost its standing: it does not represent the citizens anymore. Second, the
horizontal social contract may break down, so that the State is illegitimate. This
state of things may range from a situation of anarchy (Lebanon may be a case in
point) to a fragmentation of a parent State into several independent States (much
as happened with the Soviet Union).

Thus sovereignty is the flip side of legitimacy. A government is legitimate
when it genuinely represents the people and generally respects human rights.
Such a government must be respected by foreigners, in particular foreign
governments. A State is legitimate and must be respected, when it is the result
of a horizontal social contract. In turn, a legitimate social contract (a legitimate
constitution) is the one that, at the very least, protects the basic human rights of
its citizens, Such a State must likewise be respected by foreigners, in particular
foreign governments.

Nowa group of people residing in a territory, bound by a legitimate horizontal
contract, may rescind the vertical contract as a result of a breach by their
government. This may occur in violent revolution or by peacefull means. The
government in power becomes illegitimate, that is, the vertical contract has
collapsed. In these cases, citizens have not lost their rights. They have not forfeited
their human rights nor their civil society which is the result of the social contract
that protects such rights. (The horizontal social contract, I emphasize, is derived
from individual rights.) They have given up neither their individual rights nor
their life in common, their commitment to social cooperation. The illegitimate
government, however, is not morally protected. Foreigners, therefore, have a
duty to respect human rights and life in common in the State, but do not owe a
similar duty to the illegitimate government, because it has lost its standing with
its own people. It does not have any moral standing, therefore, with foreigners.*®


360 Index

Jurisdiction, 52, 57
Article 2(4) of UN Charter
Article 51, reconciling, 64-69
defined and construed, 61, 64-69, 172
humanitarian intervention, 78
Jeffersonian principles, 46
“nonintervention” principle of, 172-174, 182
‘Monroe Doctrine, 46
universal jurisdiction over violations of Article 2(4), effect of, 52
Axticle 4 of UN Charter
fomenting civil strife, prohibition against, 57
Article 7 of UN Charter
menacing international peace and order, prohibition against, 57
Article 12 of UN Charter
self-defense, right to, 57
Article 14 of UN Charter
supremacy of international law, 57
Article 41 of UN Charter
economic sanctions under, 285
Article 42 of UN Charter
Gulf War mandated by Security Council under, 182, 226
Axticle 51 of UN Charter
air attack on terrorists targets (1986) in Libya consistent with, 51
“armed aggression,” construed, 64
Axticle 2(4), reconciling, 64~69
defensive actions based in, 38
drug trafficking, 319
historic US view, 70
interpretation of, 33-34, 182, 226, 231
See also specific matters, this topic
Nicaragua case, effect of, 138
reporting requirement, 71
“(The) Art of War” by Sun Tzu, 6-8
Assad: See Syria
Assassination, 3
decency, meeting minimum standards of, 105
defined, 123, 274, 281-282
drug lords, assassination of, 274-275
jus in bello of just war tradition, 163-165, 195-196, 213, 231
Tegal analysis, 281-282
military commander as legitimate subject of assassination, 143, 273-274
nature of, xv
secret intelligence support as classification of covert activities, 327
US role in, history of, 127
Assistance to Soviet Union, support for, xvi-xvii, 80, 262
Athenian democracy, classical view of statesmanship, 339-342
Atomic bombs: See Weapons of mass destruction
Augustine, 150, 209
Avoidance of war
jus ad bellum, 192, 227
‘UN war-decision law based on, 184

B

“Baby Doc” Duvalier of Haiti, covert activities, 327
Bacteriological warfare: See Biological warfare
Balance of power


PART FOUR

U.S. POLITICAL AND CULTURAL CONSTRAINTS
ON LOW-INTENSITY CONFLICT


178 Legal & Moral Constraints on Low-Intensity Conflict

standards, such acts are acts of war (the employment of force to coerce other
governments) which violate the traditional standard of non-combatant im-
munity. They are therefore immoral and may be resisted and/or punished by
military means, observing the traditional limits of proportionality and discrimina-
tion. Such conclusions seem relatively uncontroversial corollaries of the just war
tradition.

Additional questions about the justice of such means (for example, against
Libya in 1986) may be raised on two counts:

(a) Chance of success. Since the exercise of this right in the Libyan case
has yielded ambiguous results, judgment must be deferred on the question
of feasibility.

(b) Unilateral authorization. It seems reascnable to ask whether some
concerted multilateral efforts (e.g. sanctions approved by the Security
Council) might be more effective. One might even contemplate the
possibility of excluding from the U.N. all members proven to be sponsors
of terrorism.

(2) Proliferation of weapons of mass destruction. This newly surfac-
ing question is intellectually daunting. The chance of resolving it by recourse to
the just war tradition is slight. For those States most likely to be able to execute
low-intensity conflict attacks against such proliferators are almost certainly armed
themselves with weapons of mass destruction. This double standard, which is
morally intelligible and defensible, represents a novel challenge to the just war
tradition for which that tradition may not indeed have any constructive response.

The present urgent case of response to Iraqi refusal to honor its cease-fire
treaty is easily resolved. Signing the treaty was a legitimate sovereign choice by
Iraq, the execution of which is a matter of legal and moral obligation. Failure to
fulfill these treaty obligations would, I believe, be a just casus belli.

Notes

‘Father Winters is Associate Professor of Ethics and International Affairs at The School of Foreign Service,
Georgetown University.

1, Johnson, supra, 147 at 160, The same argument is adumbrated eatlier in the essay 158-159,

‘All this historical reasoning argues strongly that just war tradition allows the use of force on legitimate
sovereign authority against the sorts of adversaries encountered in low-intensity conflict contexts:
terrorists, drug traffickers, petty dictators who use the resources of their countries for their own purposes
and against the good of their people. Indeed, historically there is more than a mere allowanceto be found
in the historical record: there is downright hostility toward such threats to the order, justice, and peace
of good political communities and of the natural rights of innozent people victimized by such activities.




Panel Discussion 247

questions have been raised and a few nagging reminders have been resurrected
by our colleagues in this room that will help me perhaps to rethink one or two
questions with regard to our policy towards Peru.

Before we conclude, let me just mention a few issues that I think our discussion
this afternoon has raised.

At a very broad level, I think that we keep coming back to Terry Nardin’s
analogy and to Michael Reisman’s elaboration on that analogy, regarding Plato’s
cave and the relationship of moral philosophy to policy and the relationship of
policy to operations. The question that we need to grapple with is whether we
really believe in this room, that the shadow wisdom of those of us in the cave
can be illuminated by the higher world outside it. That ties into the question of
what is the role of lawyers as well as of moral philosophers who have an interest
in public policy questions relating to national security. All kinds of questions
come up regarding the integrity ofjudgment. What are the standards or safeguards
that we need to protect that integrity of judgment so that neither lawyers nor
moral philosophers become simple advocates and do manage to retain a sense of
objectivity as they engage in that rich process of counseling their clients? The
lawyer is hired by the client but he is hired by the client to exercise his judgment.
At least I would want to hire a lawyer in order for him to have the freedom and
the integrity to tell me when I should not do something that I’m contemplating.
That applies more broadly to the question of moral philosophy. So, that
relationship of philosophy to policy and to operations is one that we need to
keep our eyes on.

Secondly, we need to keep wrestling with the question of the definition of
international law, and exactly what we mean by international law. Michael
Reisman just offered us a very eloquent and persuasive account of international
law, which I would suggest differs from some of the more popular notions about
international law as a set of rules or, as a dear friend of mine likes to call it, as a
TV set that is either turned on or off. So we need to look closely at whether our
definition of the process of international law is flexible enough to incorporate
moral and prudential considerations. Michael Reisman would argue that it does
and some of us in this room would agree with him.

Thirdly, moving to a different set of issues bearing on low-intensity conflict
policy, how do we address the problems raised by Father Winters’ position about
the cultural context of justice? Father Winters implied that we need to be aware
of reformist agendas and suppositions that often drive our support for low-in-
tensity conflict operations in different parts of the world, be they coup d’etats to
overthrow the nasty dictator, or support for an insurgent group that we think
will do some good things for a particular country. I would suggest that Father
Winters’ warning needs to be tempered by the reality that not all low-intensity
conflicts are radically reformist in nature. There are some types of low-intensity
conflict environments in which we become engaged for purposes of making a


Panel Discussion 241

but militarily. I think that there’s a big difference between the international
Jawyers who function as legal advisors throughout the world and the international
legal scholars who think about these issues in a different way, and have a different
agenda. That’s all there is to it.

Bork wrote with some passion that morality had nothing to do with inter-
national law and that’s why he didn’t give a damn about it. He wasn’t prepared
to support a system of law that doesn’t care about justice. He cited prominent
international legal scholars who had advanced the proposition that morality
doesn’t have anything to do with international law. I’d like to know what you
are trying to do. Is Eckardt right that you progressed from a position where you
were trying to merge the interests of justice with traditional international legal
analysis into a single system, or are you talking about two systems that have to
be applied in a complementary manner? Functionally, I want to illustrate the
difference, We get invited to staff meetings where they’re talking about the
wisdom of something. They really do, our decisionmakers, even if they’re
lawyers, they make a distinction between the times when they call upon us to
participate in the decisionmaking process as lawyers, and the times when they
feel that they’re really being asked to exercise their judgment. Are you trying to
say that the lawyers in the State Department and the Department of Defense and
the CIA, when it undertakes low-intensity operations that are covert, ought to
be telling their bosses, “not only should you be hearing from us on whether this
is an act of self-defense, but you should be hearing from us on whether you
should invoke the doctrine of self defense here, because it won’t go down with
the people of America, or with the people of the world?”

PROF. O’BRIEN: I'd like to acknowledge a separateness. I'd like to take the
second version which maintains that the two are complementary, but very closely
related. As I tried to indicate, I think that you can broaden your legal analysis by
being informed, if you will, by the perspectives of just war doctrine, particularly
on self-defense, which as we said this morning, is an inherent right of natural
law. It was there a long time before Article 51.

PROF. ECKARDT: I'd like briefly, if I could, to respond to Judge Sofaer.
As a legal advisor to a combatant commander, I sat in the senior decision cell
expected to speak forthrightly, not just when asked about technical, legal things.
Not only to give technical legal input, but to do what a lawyer does and listen
and to try to insure that in effect, the honor of the United States was protected.
Now, one is very careful when one does that and I tried to suggest that there is
an interdisciplinary approach that lawyers can bring to the table. I don’t see how
one separates out the guidelines of international law and just war and the history
of the profession of arms. All of those things bump up against each other in time


256 Legal & Moral Constraints on Low-Intensity Conflict

policy, beyond some very “domestic” issues like narcotics interdiction and
anti-terrorism.

Ill. The New Moral Debate

As Martin Luther instructs us in his Small Catechism, we should always try to
put the best construction on things: so let us assume that such political leadership
emerges, and that a new consensus on the inescapability of an active American
leadership role in world politics and economics becomes the political-cultural
baseline for policymaking. Remembering what was said above about
Chesterton’s adage and the need for the policy-maker to take it seriously, what
will be some of the moral issues that the low-intensity conflict planner will have
to confront in the 1990s?

Here we return to the classic categories of the just war tradition. The jus in
bello principle of discrimination (and its prohibition of the direct targeting of
noncombatants) is, at one and the same time, the just war norm that virtually all
reflective people intuitively grasp and one of the more difficult norms to observe
in low-intensity conflict situations. This is particularly true in counterinsurgency
operations, where the insurgent forces typically hide within the indigenous
population (like fish in the sea, in Mao Tse-tung’s famous metaphor) and not
infrequently use the indigenous civilian population as defensive shields of one
sort or another. But similar difficulties present themselves in anti-terrorism and
counter-terrorism operations, as the U.S. experience in attacking Libya and
the experience of the State of Israel in militarily confronting Palestinian and
Hezbollah terrorism readily attest.

The just war panel will doubtless go into the refinement of the principle of
discrimination in light of these distinctive circumstances. So let me simply say
here that, if our concern in low-intensity conflict operations is both to do the
right thing and to have the support of the American people in the doing of that,
great care must be taken to resist the temptation to abandon the principle of
non-combatant immunity because of the enemy’s perfidious use (and abuse) of
the civilian population.

Americans understand, as the just war tradition understands, that there are
going to be unintentional civilian casualties in war: that is one of the reasons why
war inevitably carries with it an element of moral tragedy, no matter how noble
the cause. But Americans also want the principle of non-combatant immunity
to remain intact. Nor should we think that Americans are incapable of thinking
in rather complex terms about these issues. The country is able to understand
that the commander on the scene often has to make excruciatingly difficult
choices at those points at which scrupulous observance of the principle of
non-combatant immunity is in tension with the commander’s moral respon-
sibility for the safety of his own forces. But that understanding has to be brought


Chapter VIII

Panel Discussion: The Just War Tradition

Alberto R. Coll, Chair

[After introducing the panelists, Prof. Coll yielded the floor to Prof. James Turner

Johnson, who summarized the key points in his paper “Just War Tradition and
Low-Intensity Conflict.” Prof. Coll then introduced Fr. Francis X. Winters, who
presented a critique/commentary on Prof. Johnson’s paper.]

FATHER WINTERS: I want to emphasize the critical thrust of my paper,
which I now feel more vigorously about because I believe that the themes that
Jim defends in his paper represent a wide spectrum of opinion in the group today.
In particular, I would like to register a certain vigorous uneasiness with what I
took this morning to be the belief that political legitimacy is more or less identical
with democracy. I realize this is a very wide spread opinion in America. I believe,
although Jim doesn’t say this in his paper, that his argument that the United States
can use low-intensity conflict to remove dictators in other countries rests
precisely on the supposition that we can judge what is dictatorship, tyranny or
despotism in another country. That, in turn, rests on the supposition, I believe,
that legitimacy and democracy are identical. My own reading of the just war
tradition, which is not nearly so professionally profound as Jim’s, is that this is
certainly not true, at least at the highpoints of the just war tradition. It may be
true of 98 percent of the authors who can be considered to be just war theorists.

Tam wholly convinced that three of the greatest authors, St. Thomas Aquinas
and his disciple, John of Paris in the thirteenth and early fourteenth centuries
and Vitoria in the sixteenth century, clearly by the whole weight of their genius,
resist the notion that any particular form of government is universally valid.
About that I will say one thing. This historical moment, in which St. Thomas
Aquinas taught, was the time when King Louis of France was resisting the
pretensions of the Holy Roman Emperor to give and enforce the law in France.
St. Thomas agreed with the King that virtue is, in fact, a function of culture. As
St, Thomas said and later, curiously, Jefferson said in our own culture, what is
virtuous in one State may be vicious in another, because politics is of the stuff of
culture. If you concede that cultures are irreducible, then politics will, some say,
be irreducible. Therefore, at the points in the tradition represented by St. Thomas
Aquinas and his disciple John of Paris, and by Vitoria, who opposed the


120 Legal & Moral Constraints on Low-Intensity Conflict

power—and should engage ourselves much more deeply in multilateral:decision-
making.

My greatest objection to Bob’s paper is that when he discusses multilateral
decisionmaking, what he seems to be saying is: “Let’s go first to regional
organizations or to the U.N. If they do the right thing, that is, if they carry out
our objectives, then we're happy and we accept that result. If they don’t we've
exhausted our remedies. We have demonstrated we're not fast on the trigger. So
we are then well positioned to act unilaterally.” I think that has essentially been
our policy over the past twelve years. I think that is why we did not use the
relevant regional organizations or the United Nations during the Reagan period
to deal with difficulties like the situation in Central America: We knew that the
collective judgement of the international community was not sympathetic either
to our ends or our means. Therefore, we did not truly engage ourselves in
international and multilateral processes of fact-finding and adjudication. And so
the question, or at least one of the questions we need to address, is whether it is
consistent with our national interests and the changed international system to
engage ourselves seriously in these multilateral processes.

Now, I must admit that my dislike of certain tonal aspects of Bob’s paper may
have led me to exaggerate our differences, which could foster misconstruction.
of my views. Although low-intensity conflict is not new in world history and is
a strategy the United States has itself employed from time to time, it does
constitute rather more of a problem for the United States than for many other
countries. That is so for three reasons which are at least close to being self-evident.
One is the extraordinary diversity and consequentiality of our transnational
interests and connections; by affecting the allocation of power and wealth in so
many places in so many ways, we are bound to make enemies. Another is the
immense military power of our country. The third is the prized openness and
pluralism of our society coupled with the democratic temper and morally
fastidious self-appreciation of our people.

American power makes it hideously dangerous for another State, or, for that
matter, non-State actor, to confront us directly. We are, in other words, almost
invulnerable to direct military threats. Low-intensity conflict is not the preferred,
it is the only prudent military strategy available to present and prospective
antagonists.

The American character and its institutional expression inhibits our use of and
aggravates our vulnerability to low-intensity tactics: It would probably be harder
for the United States than, for example, France to employ terrorist tactics without
exposure. Exposure would have grave domestic and international political
consequences. It is presumably easier for agents of antagonistic states or mafias
to enter the United States and blend with the population than it would be in a
society with a more intrusive security apparatus, or one that was smaller and more
homogeneous. However, in light of our freedom from successful terrorist


Johnson 161

violence." Or, as one recent essay put it, this term was developed “to describe
a diverse range of politico-military activities less intense than modern conven-
tional warfare.” Either definition is sufficiently broad to include the Vietnam war
at one extreme and counter-terrorist measures at the other. It would be impracticable
to consider here all facets of such a diverse range of conflict. In any case, the policy
and decision issues now current have less to do with Vietnam-like wars and more
to do with challenges of a different kind posed by terrorism, narcotics trafficking,
dictators and rogue States. Still other low-intensity conflict challenges may be
expected to arise from ideological zealotry, ethnic hatred, and political instability
following the Soviet breakup. This bewildering multiplication of disorder requires
that low-intensity conflict policy-making be conducted on a case-by-case basis. In
such analysis fundamental rules of prudence should supplement the moral restraints
of just war tradition. There is always far more wrong in the world than the most
powerful of nations can remedy. The United States should choose first from among
the ills it can mitigate those that jeopardize its values and interests or those of its close
allies. And military force may not necessarily be the best response for all of these first
order threats.

Let me comment briefly on two specific types of challenges in response to
which use of military force may be justified: terrorist activity directed against the
United States at home or abroad and the narcotics trade.

Terrorism proven to be State-sponsored is clearly an act of war to which a
military response is justified. Even when it is legitimate, recourse to arms may
not be the most appropriate or practical response to terrorism, but such prudential
considerations do not vitiate the right to resort to force. The moral issue here is
the same as for other possible uses of force: the need to satisfy the various
conditions that define the just war jus ad bellum.

Satisfaction of the defining conditions does not, however, support the argu-
ment that what may be done must be done. Critics of the 1986 American air
strike against Libya have frequently argued that the action was wrong because
Iran and Syria were more to blame for the terror bombing in Berlin that
occasioned the strike. According to this criticism, it was inconsistent and
somehow unfair to target Libya alone; we should also have retaliated against the
other States. This is a spurious argument. One is never morally required to do
everything one may morally do. One may punish wrongdoing, says just war
tradition; one does not have to do so. But not all who advanced the argument from
consistency seriously wanted to punish Iran and Syria as well as Libya. In some cases,
it thinly veiled an effort to deny any and all use of military force against State-spon-
sored terrorism; that is, the argument was pacifism in the guise of a push for
consistency. When advanced in good faith, the consistency argument ignores the
prudential concems inherent in just war tradition and good statecraft; when used
disingenuously, it seeks to deny that force may be used for moral purposes.


Chapter XI

Panel Discussion: Domestic
U.S. Constraints on Low-Intensity Conflict

RADM Bruce Harlow, Chair

[Following the presentations by George Weigel and Carnes Lord of their
respective papers, Rear Admiral Harlow opened the floor to discussion.]
RADM HARLOW: To allow more opportunity for comment and questions, I
will forego a summary and open the proceedings to interventions from the floor.

PROF. SARKESIAN: Is there such a thing as a just revolution, as a just
counterrevolution, or a just terrorist operation?

MR. WEIGEL: Can there be a just revolution? Yes. Just counter-revolution?
I’m not sure what that would mean. One of the things I should have mentioned,
which merits some thought, is the way in which political struggle shaped the end
of the Cold War in Central and Eastern Europe. In other words, non-military
political action aimed at the “revolutionary overthrow of the existing regime.”

Just terrorism? No. That’s off the board. Just counter-terrorism? I think
counter-terrorism, as Bill O’Brien’s new book indicates, puts the most stress of
anything we've yet considered on the traditional just war categories because of
the nature of the adversaries and the discrimination problem. As long as this is a
phenomenon of our times, we’re going to have to figure out a way to think
about it in something approaching just war terms. In this matter, I’d happily defer
to Bill.

MR. COLLINS: The subject of assassination kept cropping up both days, and
what I would like to do is give you all a couple of things to think about that
might not have occurred to you before.

USS. policy disapproves of assassination for moral, legal and, as Carnes Lord
said, cultural reasons, but the limits of that disapproval are very fuzzy because the
term “assassination” has never been effectively defined. It seems to me that it’s
time to sort out that semantic mess, because, if flexibility is important for
low-intensity conflict, we may be passing up a lot of useful opportunities.
Strategic assassination has a potential to change the course of events dramatically;
it can even change the course of history.


PART FIVE

CONCLUSION


344 Legal & Moral Constraints on Low-Intensity Conflict

guidance or as a foundation for action. Thus, when we decide to use military
force or carry out a covert action, our decision should be influenced jointly by
our principles and prudential judgment.

By applying this formula the Framers hoped to steer a middle path in foreign
affairs between the amorality of the realists and the excessive moralism of the
idealists. The Declaration suggests a path to statesmanship based neither on the
absolute adherence to, nor the complete avoidance of, our values. It is the
responsibility of the statesman to blend principle and prudence and to refrain
from the unlimited pursuit of abstract doctrines in whatever form they take.

During the Constitutional Convention, the Founding Fathers turned to the
question of which institution was best suited to conduct statesmanship as
described above. Although the need for a strong Executive was not articulated
initially, by the end of the Convention the foreign policy powers of the President
‘were substantially increased. Activities requiring deliberation were seen as most
suitable for the legislative branch, while those calling for action and decisiveness
were assigned to the executive. In the case of the latter, the characteristics of
action and decision were seen as particularly necessary in the area of foreign
policy. For this reason the executive was given the power to deploy troops and
to use military force, although he could not declare war. Likewise, the President
was assigned the power to conduct negotiations and related diplomatic activities,
but treaty ratification was reserved for the Congress. The President also has
responsibility for intelligence matters.

While the Constitutional Convention left the exact scope of these powers to
be worked in practice, there is little doubt that foreign policy authority was given
extensive consideration.”° This was amplified in The Federalist Papers. Both
Hamilton and Madison noted that the ability to act in foreign affairs was central
to the power of the Presidency. The need for an effective foreign and defense
policy required energetic government and this was seen as a central characteristic
of the executive branch. As Madison argued in Federalist No. 37:

Among the difficulties encountered by the Convention, a very important one must
have lain, in combining the requisite stability and energy in government, with the
inviolable attention due to liberty, and the Republican form. Without accomplish-
ing this part of their undertaking, they would have very imperfectly fulfilled the
object of their appointment . . . Energy in government is essential to that security
against external and internal danger, and to that prompt and salutary execution of
the laws, which enter into the very definition of good government.

Hamilton raised this same issue in Federalist No. 70: “energy in the executive
is a leading character in the definition of good government. It is essential to the
protection of the community against foreign attack.””* He goes on to state that
the “ingredients, which constitute energy in the executive, are first unity, second
duration, thirdly an adequate provision for its support, fourthly competent




96 Legal! & Moral Constraints on Low-Intensity Conflict

position amounts to unconditional surrender, since it makes communitarian
realism trivially true. If human rights are universal, then communitarianism, for
all purposes, is tantamount to liberalism. The communitarian can no longer
identify a relevant community as legitimately denying human rights, because
members of that community would be also part of the international community,
and as part of that community they are governed by the imperative to honor
human rights.

To conclude: Normative realism is unappealing in any of its versions because
of its indifference to universal principles of justice—in particular, human rights.
Utilitarian realists are right in seeking a liberal democratic foundation of national
interest, but consideration for human rights is needed. Communitarian realists,
on the other hand, are right in seeking a foundational approach to reject the
utilitarian determination of the national interest; they are wrong, however, in
the foundational principle (appeal to the intimations of the tradition) that they
propose. This principle, like the utilitarian one, is also insensitive to human rights;
unlike its utilitarian counterpart, communitarian realism neglects actual interests
vindicated by democratic theory (unless the tradition happens, by historical
accident, to be the right one on independent moral grounds.)

(¢) The Human Rights Approach

The task then is to provide a sound theoretical basis for international morality,
one that avoids the pitfalls of realism. Here I contend that an international act is
immoral when it violates human rights. If this suggestion is accepted, then we
can clearly see why serving the national interest cannot possibly justify low-in-
tensity operations that violate the rights of individuals in the target State. The
reason simply is that universal human rights outweigh the pursuit of interest. It
follows that a morally acceptable description of the international role of govern-
ment is this: a government is entrusted by the citizens of the State with the
conduct of foreign affairs in such a way so that the interests of the citizens will
be served, provided that global human rights are respected. The human rights-
based theory of international law is compatible with the pursuit of the national
interest (in the utilitarian sense), when respect for human rights constrains it.

The foremost national interest of citizens in a democracy is to defend their
just institutions. In a sense, this interest may seem to respond to the description
offered by communitarian realists, since the morality of defending just institu-
tions is not contingent on citizens actually wanting to support them at a particular
historical time. A government having the wisdom to defend just institutions
when they fall from popular favor would be morally justified in opposing the
will of the majority. However, as suggested above, the human rights theory of
international relations departs from communitarian realism even if the outcome
coincides with the liberal view. In the example just given, the communitarian
interest is just contingently analogous to the liberal defense of just institutions,


60 Legal & Moral Constraints on Low-Intensity Conflict

or authoritarian regimes to exercise it in the absence of a legitimate expression
of the popular will vesting them with such authority? This line of reasoning could
ultimately justify placing a great deal of pressure on non-democratic States to
permit their people to select a government of choice by majority rule. In so
doing, it would enhance justice and the long-term peace.

It is clear that the classical view of absolute State supremacy is no longer an
element of the modern doctrine of “sovereignty.” States are today limited in
many ways by customary and conventional international law; and even non-con-
senting States are constrained by the peremptory norms of international law often
called jus cogens. No one would seriously challenge the 1952 observation of
former World Court Justice Philip C. Jessup that:

[T]he regulation of the threat or use of force is not inconsistent with the principle
of sovereign equality [of States]. A resort to war can, therefore, no longer be
justified by an invocation of the old concept of absolute sovereignty, which in the
last analysis left every State the final judge of its own cause.

The Appeal of Low-Intensity Aggression

It should be understood that a major reason for the growth of low-intensity
conflict as a weapon of choice by radical regimes and aggressor States in the
post-Charter world is that more obvious uses of aggressive force are so clearly
outlawed and are usually easily identified. The fact that low-intensity aggression
has become so often the weapon of choice for modern aggressors stands as
evidence of the success of the basic provisions of the Charter, which has clearly
prohibited more obvious forms of aggression.

By calling for a narrow interpretation of the rights of States to defend
themselves (and each other) from all levels of aggression below all-out “war,”
these aggressor States believe they can open the way for the lawful destruction
or destablization of peaceful neighbors through low-intensity aggression. As will
be shown, neither the purposes set forth in the Charter nor the travaux of relevant
provisions of the Charter support the proposition that the United Nations was
established to make it safe for aggressors to subvert their neighbors gradually
through low-intensity conflict, and States which genuinely subscribe to the
principles of the Charter must not permit the document to be misinterpreted to
permit this wrongful end. Ultimately, the low-intensity conflict scenario is
selected because it provides a colorable claim of legitimacy (being less obvious)
and because its proponents can cite a range of legal scholars who honestly (but
wrongly) believe it is unlawful for nations to assist victims of such aggression. If
such tactics are allowed to succeed, aggression can be expected to increase. The
men who met in San Francisco may well have been thinking primarily about
deterring World War III, but the clear intent of the Charter they produced was
to outlaw any use of force by States contrary to the purposes of the Charter. It


Panel Discussion 297
RADM HARLOW: Mike.

PROF. REISMAN: I also found both presentations extremely useful and
provocative.

I have two questions for Abe and one for Ken.

Abe, in your criteria for proceeding with a particular low-intensity program,
one of the tests was whether or not the acts would be in violation of foreign law,
if understood you correctly. Bruce mentioned the issue of espionage, which, I
presume, is conducted all the time. I would assume that in most cases those
activities don’t meet the criteria that you established. I wonder if it isn’t too high
a standard, and the criterion ought to be whether or not the action in question
violates international law, rather than the foreign law of the target State.

The second question addresses something you said in a very clear way at the
end of your presentation. You suggested that morality acts as a prudential override
when law permits something, but morality never acts as an override on law when
the law prohibits something. In other words, you don’t proceed because it’s the
right thing to do if the law prohibits it. Let me put it this way. Ifthe law approves
and morality prohibits, kill the operation. If the law prohibits but morality
permits, kill the operation. Is this what you meant?

JUDGE SOFAER: On the latter, I think that when you turn it around that
‘way, it isn’t exactly accurate because there is an emergency power inherent in
international law as well as in national law, and you do have to answer. I think
that Jefferson was correct in that regard, as well as in others, although I think he
ended up with too broad a view of emergency power because of his restricted
view of the Constitution. The fact is that when you violate the law you have to
admit you violated the law and face the consequences. As long as you’re doing
that, and you think that you’ve done something moral and justifiable, I accept
it. For example, the nuclear reactor in Iraq. I think that is a violation of
international law, except for the problem of Iraq having not withdrawn its
declaration of war, which I really haven’t yet analyzed.

As to your other point, I think you’ve just over-read what I said. When I was
in the government for five years I found it disturbing that we would violate the
laws of foreign countries without giving that an adequate value weight. I’m not
saying that when whatever you're doing violates the law of a foreign country,
you can’t do it. No. I said that it is a value in international law that States should
not violate each other’s domestic law. Now, maybe that’s controversial, but I
find myself very comfortable with it. I think that States ought to respect each
other’s domestic law and take into account the possibility that their actions might
violate it. Then, if there is some overriding value that causes you to want to go
ahead anyway, I would accept that, and you have to face the results, the
consequences.


12 Legal & Moral Constraints on Low-intensity Conflict

legendary tales of capitalists who made large fortunes out of World War I need
to be balanced by an account of the many more who were ruined or adversely
affected by it.

Today, capitalism is on balance a force for international political restraint and
accommodation. Radical critics who point to the connections between large
capitalist firms and the world’s military establishments tend to downplay other
more significant dimensions of the impact of capitalism on international politics.
At the height of the Cold War, Gulf Oil happily pumped oil in Angola under
the protection of Cuban troops, while its Washington lobbyists pushed for a
diplomatic understanding with the Soviet-backed Luanda government and a
cutoff of aid to the anti-Marxist rebel Jonas Savimbi. In Sandinista Nicaragua,
Exxon maintained its refineries in top working condition for many years, while
resisting the Reagan Administration’s policy of isolating that country economi-
cally and politically. In early 1988, when most of America’s large multinationals
‘were engaged in a scramble to secure new economic opportunities in the USSR.
under the umbrella of perestroika, the Chairman of the Board of IBM politely
declined to sign an innocuous appeal to President Gorbachev for greater religious
freedom, apparently for fear of offending Soviet sensibilities.'> Throughout the
Cold War, American business circles supported a strong defense and large military
expenditures for deterrent purposes, but they wanted the competition between
the superpowers to remain carefully controlled, so as not to disturb the expansion
of international trade, investment, and the processes of wealth-creation. Today,
‘Western multinational corporations are the strongest advocates of expanding
trade and investment ties with Iraq and Iran, in spite of the massive evidence that
both countries are trying to develop nuclear weapons and Iran remains a major
backer of terrorist groups in the Middle East.

There is another significant way in which capitalism indirectly reinforces the
liberal democracies’ vulnerability to unconventional warfare. The fusion of
modern democracy with a capitalist economic system has produced societies
whose highest reason for being is the unlimited acquisition and enjoyment of
material goods. The Jeffersonian ideal of the pursuit of happiness, hedonistic
enough in 1776, has become even more so in the succeeding two centuries. The
ultimate standard by which liberal democracies measure themselves, the goal to
which all political parties aspire, and the test by which all incumbent politicians
are judged, is success in securing ever higher levels of what Hobbes called
“commodious living.”"® By fostering consumerism and materialism, and by
glorifying individualism to the point of sometimes condoning selfish and anti-
social attitudes, modern capitalism provides a less than fertile soil for the nurture
of the martial virtues and a poor climate for the acceptance of war as a tragic but
unavoidable part of life for which a democracy’s citizens must be ever ready.

If the traditions and leading ideas of liberal democracies do not prepare them
well for the challenges of unconventional warfare, neither do their predominant


Chapter XIII

Can American Democracy
Employ Covert Action as an
Instrument of Statecraft?

Alberto R. Coll and Richard H. Shultz, Jr.

he famed Iran-Contra Congressional investigation of the late 1980s focused

public attention on the question of whether the United States, as a
democratic regime, should engage in covert action. This debate was not new.
In many respects it mirrored that which took place during the congressional
investigations of the United States intelligence community a decade earlier. A
major issue then and more recently is whether, and if so to what extent, a
President should employ covert action as an instrument of policy. The purpose
of this analysis is to examine different American perspectives on this question and
propose a set of guidelines for the use of covert action in the 1990s and beyond,
Before turning to these issues, it is necessary to define covert action and briefly
describe its constituent parts. Covert action is employed to influence politics and
events in another country without revealing one’s involvement or at least while
maintaining plausible deniability (that is, conducting an operation so that the
sponsoring government can credibly argue that it was not involved), Covert
action is more controversial than other aspects of United States intelligence policy
such as the collection and analysis of information, or counterintelligence. While
relatively easy to define, covert action has become increasingly difficult for the
United States to employ as an instrument of statecraft.

Covert action involves various kinds of interference in the affairs of another
country. It is a generic term that describes a class of activities that can be divided
into the following five categories: propaganda, political action, paramilitary
assistance, coups d’etat, and secret intelligence support. While each of these
variants will be defined separately, it should be noted that they are often employed
in conjunction with one another.
© Propaganda, conducted covertly, is the dissemination of unattributable com-

munications to alter the conditions under which governments act. The
materials circulated may contain true or false information. An example of a
major United States covert propaganda program during the 1950s was the


78 Lega! & Moral Constraints on Low-Intensity Conflict

more important in the coming years. If the United States or one ofits allies learns,
for example, that a radical regime is planning to launch a nuclear, biological, or
bacteriological warfare attack against a major population center, it can hardly be
expected to sit quietly back and await such imminent devastation on the theory
that an actual “attack” must precede any measures of forceful self-defense.

Humanitarian Intervention

Some scholars contend that it is permissible under international law for one
State, or a group of States acting collectively, to intervene in another State for
the purpose of preventing or stopping conduct which “shocks the conscience”
of mankind, such as widespread murder or torture of innocent people."
Oppenheim writes:

There is general agreement that, by virtue of its personal and territorial supremacy,
a State can treat its own nationals according to discretion. But there is a substantial
body of opinion and of practice in support of the view that there are limits to that
discretion and that when a State renders itself guilty of cruelties against and
persecution of its nationals, in such a way as to deny their fundamental human
rights and to shock the conscience of mankind, intervention in the interest of
humanity is legally permissible. . .. The fact that, when resorted to by individual
States, it may be—and has been—abused for selfish purposes tended to weaken its
standing as a rule of International Law. That objection does not apply to collective
intervention. The Charter of the United Nations, in recognising the promotion
of respect for fundamental human rights and freedoms as one of the principal
objects of the Organisation, marks a further step in the direction of elevating the
principle of humanitarian intervention to a basic rule of organised international
society."

Oppenheim concluded that the Charter strengthened the case for a legal norm
permitting humanitarian i intervention. ’”" It should be noted that many scholars take
a quite different position, arguing that Article 2(4) of the Charter outlawed an
established preexisting right of humanitarian intervention. For example, Professor
Sgrensen concludes: “The arohibition of armed intervention applies equally to

. humanitarian intervention.”!* Like many writers, he seems somewhat less con-
cerned with multilateral intervention and concludes that the Security Council
decisions on the Congo (1960) “give support to the view that there is room for
collective intervention on behalf of the United Nations when internal disorders in
a State assume the proportions of a threat to international peace and security.”125

The American Law Institute, in its Restatement (Third) on Foreign Relations
Law, provides: .

‘Humanitarian intervention to rescue victims or suppress human rights violations. It is
increasingly accepted that a State may take steps to rescue victims or potential
victims in an action strictly limited to that purpose and not likely to involve


834 Legal & Moral Constraints on Low-Intensity Conflict

“U.S. should lessen its reliance on all forms of covert action, so that the quiet
option does not again become the tail that wags the foreign policy dog.” While
he believes that there are situations in which the U.S. might “help [a friend]
quietly and honorably . . ., in most cases, the best assistance would be an open
encouragement.”*! Treverton concurs with this proposition, at least for large
covert actions. He writes that the “imperative of secrecy, so powerful on the
minds of decision makers in a crisis atmosphere, may be less than it seems. If
covert action is not going to remain secret anyway, why not act openly?”
Treverton admits that this may not settle hard cases. Nevertheless, the “bias
toward openness [in the American political system] is a strong one,” and we
should seek to help our friends overtly, if at all possible.”

In the aftermath of the Iran-Contra revelations, Allan Goodman proposed that
the political fallout from such operations is so great for the Central Intelligence
Agency that “covert action should be curtailed and taken away from the cia.”
Goodman also has questioned the utility of covert action from the perspective
of performance. He does not believe it has been cost-effective, and has argued
that Presidents have employed it “when traditional. diplomacy seemed unproduc-
tive and overt military intervention risked wider conflict.”** In light of this, he
has urged that “Washington . . . no longer conduct secret political influence,
propaganda, and disinformation dimensions of covert action.” Goodman does
see the need for “some paramilitary operations, such as hostage rescue and
antiterrorism.” However, responsibility for it would be “returned to the Defense
Department.”*>

Employ Covert Action as an Instrument of Statecraft within a Realist Context

There are those who assert that covert action should be understood and
employed as a normal instrument of statecraft in support of foreign policy
objectives. It should not be used as a substitute for policy or as a last resort after
all else fails. There is nothing exceptional or magical about covert operations.

Individuals with rather diverse political views have argued along these lines.
For example, Leslie Gelb of The New York Times has stated that the issue of
covert action should be framed within the larger context of whether or not the
United States ought to “interfere in the internal politics of other societies.” He
has written that that this “is exactly what foreign policy is. All foreign policy is
the extension of one’s internal policies into the internal politics of another
nation.”*° This may take place openly or covertly:

I think the question is not, “should we have covert operations?” The question is,
what is your policy? If you have a policy that makes sense, it seems to me that in
principle you could conduct covert operations supporting that policy that would
make sense . . . As for specific operations . . . sometimes they have been used
wisely and sometimes not, but in most cases the real problem has not been with


ACKNOWLEDGEMENTS

The Editors wish to thank those persons and institutions without whose
support this book could not have been published. The Offices of the Under-
secretary of Defense for Policy and the Assistant Secretary of Defense for Special
Operations and Low-Intensity Conflict generously provided all the necessary
funding. Colonel Ron Smith (USA) and Staff Sergeant Jeffrey Morrisey (USA)
brought their considerable skills to bear in helping to organize and conduct the
initial symposium in 1992 out of which this book grew. The Editors also wish
to thank the panel Chairs at the 1992 Symposium, Prof. W. Michael Reisman
of Yale University and Rear Admiral Bruce A. Harlow, JAGC, USN (Ret.),
and all the authors, commentators, and participants for their substantive con-
tributions to this effort. Finally, without the sustained support and encourage-
ment of RADM Joseph C. Strasser, USN, President of the Naval War College
(1990-1995); Dr. Robert S. Wood, Dean of the Center for Naval Warfare
Studies; and Professor Richard J. Grunawalt, Director of the Department of
Oceans Law and Policy; and their dedicated staff; this book could not have been
published.


Turner 61

is therefore imperative that this alleged “loophole” be dealt with firmly in defense
of the Charter.

Limitations On Threats And Use Of Armed Force

International law clearly prohibits any State from interfering in the internal
affairs or infringing the territorial integrity or political independence of any other
State in the absence of a legal right to do so. Indeed, it can be argued that the
most fundamental of all substantive rules of contemporary international law is
the prohibition found in Article 2(4) of the U.N. Charter prohibiting the “threat
or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations.”

Judge Jessup has observed:

Returning to the terms of the Charter of the United Nations, it may be noted that
Article 2, paragraph 4, is not an absolute prohibition of the use of force. If force
can be used in a manner which does not threaten the territorial integrity or political
independence of a State, it escapes the restriction of the first clause. But it must
then be established that it is not “in any other manner inconsistent with the
Purposes of the United Nations.”

Article 1, paragraph 1, of the U.N. Charter sets forth the organization’s
“purposes”:
The purposes of the United Nations are:

1. To maintain international peace and security, and to that end, to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.

It is clear that Article 2(4) was intended to be comprehensive in scope,
outlawing not only “war” but any non-defensive use of force inconsistent with
the Charter’s principles. Consider, for example, the result when the U.N.
General Assembly in 1951 asked the International Law Commission to come up
with a comprehensive “definition of aggression,” and the ILC provided this broad
formula:

Aggression is a threat or use of force by a State or Government against another
State, in any manner, whatever the weapons employed and whether openly or
otherwise, for any reason or for any purpose other than individual or collective
self-defense or in pursuance of a decision or recommendation by a competent
organ of the United Nations.


Turner 67

attack occurs. Nothing in the history of the drafting (the travaux préparatoires)
suggests that the framers of the Charter intended something broader than the
language implies.”” iat disagree, and would note that if these articles were intended
to terminate pre-existing rights of customary law otherwise consistent with the
Charter, the entire U.N. operation in response to the North Korean invasion of
South Korea in June 1950 may® have been improper. First of all, article 2(4)
specifies expressly that “All Members shall refrain . . . from the threat or use of
force... [emphasis added].” Since North Korea was not even arguably a
“Member” of the United Nations, Professor Henkin’s literalist interpretation
would appear to permit non-members to engage in the prohibited conduct.
Furthermore, a similarly strict reading of the text of Article 51 would suggest
that it only preserves “the inherent right of individual or collective self-defense
if an armed attack occurs against a Member of the United Nations.” Professor
Henkin, et al., contend that, by implication the Charter destroys the remainder
of the historic customary law right of self-defense—if he is correct, it would seem
to follow with equal clarity that there is no right to self-defense in the event of
an armed attack against a non-Member of the United Nations. Since South Korea
was not a U.N. Member in 1950, by Professor Henkin’s rules of interpretation
the U.N. and its members acted wrongfully in resisting North Korean aggression.
Rather than relying primarily on the “armed attack” language in Article 51,
the scope of the right of self-defense can best be understood by a more detailed
examination of Article 2(4)—which established the general prohibition against
using armed force. A textual analysis of this provision would certainly not seem
to preclude measures taken in self-defense against a prior violation of the
provisions of Article 2(4), and when the travaux préparatoire is consulted to clarify
any ambiguities! the case is even stronger. As Professor Brierly notes: “Com-
mittee I at San Francisco, which dealt with Article 2(4), said outright that ‘the
use of arms in legitimate self-defense remains admitted and unimpaired.”®? He
argues further that the travaux of the San Francisco Conference:

[S]how that Article 51 was introduced into the Charter in Committee III/4
primarily for the purpose of harmonizing regional organizations for defence with
the powers and responsibilities given to the Security Council for maintaining
peace; and they do not indicate any conscious intention upon the part of
Committee III/4, in including the words ‘ifan armed attack occurs’, to put outside
the law forcible self-defence against unlawful acts of force not amounting to an
armed attack.”

Professor Brierly concludes that a broad interpretation of Article 51 is
supported by the fact that the Russian text of the Charter refers to self-defense
as an “imprescriptible” rather than an “inherent” right, and the French text calls
it a “natural” right—both consistent with the view taken by the United States
during the negotiation of the Kellogg-Briand Pact that self-defense was an


Panel Discussion 211

replaced by a military junta which lasted 89 days. They were then replaced by
another military junta that lasted about 18 months, which was replaced by Thieu
and Ky. Reform never appeared.

Now, it is entirely possible that because I have been preoccupied with this
fateful choice in American and Vietnamese history, I feel overly strong about the
principle of sovereignty. I concede that. All I will say is that in this pivotal episode,
the connection between the assumption that Americans know what is legitimate
in another country and the move to reform the situation by decapitating the
government, from which chaos ensued, may not be coincidental. If there is such
a connection, then I think we should pause and ask ourselves whether we
shouldn’t take more seriously this old-fashioned principle of sovereignty, which
insists that political legitimacy is culture specific, and therefore should not be
judged from the outside by someone who simply happens to be powerful enough
to overthrow a government.

PROF. COLL: Thank you, Father Winters.

Let me summarize some of the key points made by both panelists before we
open up the floor.

Professor Johnson argues that the just war tradition is best seen as a historically
received way of thinking about the problem of war. He views it as a tradition
that is very closely connected to what Professor Terry Nardin would call
“common morality,” in the sense that it draws for its sustenance on attitudes
among the general population as well as religion, international law, and military
manuals, And, he sees these sources functioning as “carriers” that advance the
tradition with varying degrees of vigor during successive stages of its develop-
ment.

Professor Johnson cites the Shultz-Weinberger debate in the mid-1980s as an
example of the liveliness and relevance of just war tradition to current policy
deliberations. At this point, I must inject a personal observation, which is that in
my years of teaching international law, I have found a degree of reluctance on
the part of international lawyers to take seriously just war thinking. This
reluctance stems from a sense that the tradition stands for a way of thinking that
is no longer relevant or practical, that just war doctrine is caught in the musty
cobwebs of medieval theology. But as Jim Johnson very usefully reminds us, the
Shultz-Weinberger debate illustrates that just war tradition is alive because the
questions raised by its criteria are very similar to the kinds of questions that at
least most of us in the West ask whenever we engage in moral reasoning about
war. Even when just war criteria are not formally invoked, the questions that are
raised, the standards alluded to by both Shultz and Weinberger, correspond to
those addressed by the just war tradition itself. It is also understandable that there
will be differences between some of the emphases laid down by the tradition in
its classical formulations, and some of its contemporary applications. This is a


828 Legal & Moral Constraints on Low-Intensity Conflict

With respect to international relations, the Framers were of the opinion that
secrecy might be necessary. They sought to attend to the need for secrecy in
national security by giving the leading role to the executive. The allocation of
powers embodied in Article 2, section 2, represents an attempt to respond both
to the needs of national security and the structure of checks and balances. Thus,
the President can take swift action to respond to a crisis or exercise leadership in
the conduct of relations with foreign governments; but the Congress has the
power to declare war, regulate the armed forces, approve treaties, and oversee
the broad outlines of foreign policy.

A second, and more immediate, reason for American reluctance toward
the use of covert action has to do with the Congressional investigations of
the intelligence community during the latter half of the 1970s. In an atmos-
phere engendered by the Vietnam War, publicztion of the Pentagon Papers
and Watergate, Congress created committees to investigate alleged abuses and
illegal practices by the U.S. intelligence community.? In January 1975 the
Senate voted to establish a Select Committee to Study Governmental Ac-
tivities with Respect to Intelligence Activities, chaired by Senator Frank
Church.* A month later the House followed suit. Moreover, the Congress
took immediate steps to expand its oversight of covert action. In December
1974 it passed the Hughes-Ryan Amendment to the Foreign Assistance Act
to accomplish this. Congress also passed the Clark Amendment to block
covert assistance to the anti-communist factions in Angola.® The atmosphere
surrounding these developments was highly charged and was marked by such
allegations as those of Senator Church, who described the CIA as a “rogue
elephant on the rampage.” While this and similar charges proved to be largely
unfounded, as the final report of the Church Committee concluded, they
contributed to the argument that a democracy should restrict severely, or
eschew altogether, covert action.

Finally, the Iran-Contra scandal of the late 1980s focused the public’s attention
again on whether or not the United States should engage in covert action. In
many respects the questions raised and debated were the same as those thrashed
out during the Congressional investigations of the 1970s. Major issues then and
now included: first, should a democracy utilize covert action in peacetime;
second, ifso, which elements should be considered and which should be avoided;
and third, to what extent does the President have the authority to make use of
covert action as an instrument of statecraft.

In spite of these and related objections, covert action has been employed
throughout the postwar era. Within the American political system several
perspectives exist about the subject. Below we will divide these into four general
categories.




Contents

ix


Chapter XIl

Roundtable Discussion

Alberto R. Coll, Chair

PROF. COLL: In wrapping up the conference this afternoon, I think it would
be quite appropriate to ask each of my fellow chairmen to highlight some of the
problems that they think it would be useful for us to consider further this
afternoon. Each of the panel chairmen will have an opportunity to do that and,
afterward, we will open up the discussion to the floor.

PROF. REISMAN: I found this a very fascinating and challenging two days.
A number of our theologians have said that there has been more talk of just war
doctrine and natural law approaches to the use of coercion here in two days than
in five years at the seminaries—and I must say, in twenty years of my own work.
But I have tried to think our subject matter through. I have read the papers
carefully, as everyone has, and attended carefully to the discussion. I have read
some of the works that have been cited, but I will say that I see many things in
a different light at the end of two days of discussion. In a sense, I see this as an
extraordinarily creative opportunity for the United States. In other ways, I view
it as extraordinarily dangerous. I would like briefly to explore those alternatives,
and then make a number of suggestions as to what might be done to maximize
the good possibilities and to minimize those which seem to me to be potentially
pathological.

I think we’ve used the words “just war” here in three different ways. In some
cases, the same speakers were using it with a shifting content. In one sense, I
think in the most innocuous, the notion of just war was used to describe a
prudential method—infra legem, the Romans called it. When we know that
something is permissible by law but we're not certain whether it’s appropriate
to do, the method we employ is a consideration of larger goals. We think about
the means that are necessary for achieving them, the cost that will be expended
and encountered in their achievement, and the returns that we ultimately expect.
This strikes me as a form of good thinking and it is a contribution that natural
law has made to all law application. I think it applies whether we're talking about
the use of coercion, as Professor Johnson said earlier, or whether we're talking
about the use of the four instruments of strategy that Admiral Lemoyne
mentioned, It applies whether we're talking about using non-coercive means


Teson 95

internationally the majority may not direct its own government to ignore the
rights of individuals in other States.

Although a government’s obligation to maximize the preferences of the
citizens it represents cannot be a paramount and exclusive international duty,
utilitarian realism still has a role to play. When the government carries out a
low-intensity operation that harms the national interest (understood in an
empirical, not holistic, sense), even if the behavior serves worthy purposes, the
citizens have a claim against their government for not doing its job properly. This
is much like the claim that a client has against a lawyer who does not do things
in the interest of the client, even if the lawyer is moved by noble considerations.

Communitarian realism, in contrast, shares with the human rights approach a
foundationalist quality. For communitarian realism, too, there are principles that
outweigh the pursuit of actual interest. However, in spite of its anti-utilitarian,
foundationalist approach, communitarian realism is untenable for two reasons.
The first is common to realism generally, and has already been referred to: the
indifference to human rights. In fact, by postulating some national interest over
and above the actual preferences of citizens, this version of realism is far more
dangerous, and (in spite of its current vogue) even less appealing than utilitarian
realism, because it is too close to the spurious and destructive themes of
nationalism. The attractiveness of the communitarian critique of the CIA’s
involvement in overthrowing Allende is that the tradition to which it appeals is
morally worthy on other grounds. Yet communitarian theory is hopelessly
relativistic. It is committed to justifying appalling regimes of oppression with
frightful foreign policies if those practices are embedded in the tradition of the
society in question. Communitarians lack the moral tools to come to the defense
of dissenters from the tradition. For example, communitarians are bereft of
arguments to defend the victims of the Tiananmen Square massacre, since tyranny
has traditionally been part of the “intimations” of Chinese tradition. Nor would
they have the moral tools to oppose the ambition”> of Islamic fundamentalists
forcibly to convert infidel nations. Communitarians have no room for inter-
national human rights or anything close to them, since the very basis of the theory
rejects the notion of transnational justice or morality.

The second reason for the moral untenability of communitarianism is that,
unlike utilitarianism, it does not even take seriously democratic representation.
Communitarians have no reason for preferring a democratically elected govern-
ment that does not pursue (domestically and internationally) the “intimations of
the tradition” to an enlightened undemocratic government. Indeed, this was
precisely the view of Plato, the most eminent of ‘communitarians.6

A communitarian might reply to this criticism as follows: “Why can’t we
identify the relevant community as the international community, and say that
since that community has agreed to an international law of human rights,
international human rights are now part of the intimations of the tradition?” This


Coll and Shultz 327

clandestinely in his safe departure from the scene while helping those
individuals and groups in the opposition who are most likely to be suppor-
tive of one’s interests. The Reagan Administration used this approach on
two occasions. In 1986 it helped to bring to an end the twenty-year reign
of Ferdinand Marcos, a long-time friend of the United States, by persuading
him to go into exile, thereby allowing Corazon Aquino to assume the
presidency. A second example was the exit in 1986 of Jean-Claude “Baby
Doc” Duvalier from Haiti.

© Secret intelligence support is another variant of covert action. It includes the
provision of security assistance and intelligence training to the leader of a
foreign country to protect him and preserve the regime. Frequently, such
support is part of the intelligence liaison process carried out between an
intelligence service and the leader the service seeks to help. This practice is
the least-discussed aspect of covert action, yet the price of the failure of such
programs can be quite high. The assassination of Anwar Sadat is a case in
point, as was the death of Mohammed Zia.

American Perspectives on the Use of Covert Action

While there may be general agreement over the definition and elements of
covert action, no such consensus exists within the American political system as
to whether, or to what extent, the U.S. should engage in secret interference in
the politics of another country. For several reasons this is not surprising.

First of all, covert actions are concealed from the open public policy debate
that generally takes place on most issues in the American political system. The
question of secrecy in government is not new but dates back to the founding of
the nation itself. From the beginning there was a dispute over the issue of publicity
versus secrecy. The men who gathered in Philadelphia in 1787 differed over the
extent to which secrecy was necessary. In principle, the Framers were proponents
of open government. For example, in 1783, Alexander Hamilton, a conservative,
was in the forefront of a movernent to pressure the Congress to open its debate
on the national debt to the public.’ However, few of the founders were willing
to reject the need for secrecy out of hand.

During the constitutional convention the issue of secrecy was debated i in terms
of the responsibility of the branches of government to release information and.
the rationale for withholding it. Witness the controversy over whether or not
the Congress should be required, “from time to time,” to publish an account of
its proceedings. A compromise on the issue was subsequently included in Article
1, section 5, indicating that while Congress is generally required to make public
its proceedings it may withhold “such parts thereof as in their judgement require
secrecy.” However, no such proviso was included with respect to the Congres-
sional reporting of public expenditures in Article 1, section 9.”


378 = Index

critique of, 94-96
North Korea: See Korea
North/South issue of redistribution of wealth, 308, 316
North Vietnam: See Vietnam
NSC10/2, 337
Nuclear weapons: See Weapons of mass destruction
Nuremberg war crime principles, 128, 294

Oo

OAS (Organization of American States), condemnation of Operation Just Cause by, 176-177, 275
Objectives of unconventional warfare, 4

Obligatio erga omnes, 59

Oceans and seas: See High seas

“Open” covert operations, 333-334

(Open warfare: See “Conventional” warfire

‘Operation Desert Storm: See Gulf War

Operation Just Cause: See Panama

“Operations other than war” See Low intensity conflict

Operation Urgent Fury, 311

Opinion polls, US government operating in reaction to, 265-266

‘Order: See Peace and order

Organization of American States (OAS), condemnation of Operation Just Cause by, 176~177, 275
Osirak, Israeli preemptive bombing of Iraqi nuclear reactor at, 223-234

Oversight Act of 1980, 286

Overt choice of means, just war theory applied to, 165-166

P

Pacifism and pacifists
National Council of Churches (NCC-USA), 260-261
philosophical position of, 88, 147-148, 150

“Pact of Paris”: See Kellogg-Briand Treaty

Paine, Thomas, 287-288

Palestinian Liberation Organization: See PLO

“armed attack,” what constitutes, 282-283
comparative justice concept, 191
iscues affecting use of military force in, 159-160
legal analysis and just war analysis, distinguished, 238-239
legal and moral constraints affecting Operation Just Cause, 116, 210
nonintervention, exception to principle of, 185-186
Noriega, arrest of See more specific lines throughout this topic
Operation Just Cause: See more specific lines throughout this topic
proportionality doctrine, application of, 275
“special case,” US 1989 Panamanian intervention 2s, 50
validity of action taken in Operation Just Cause, OAS condemnation of, 176-177, 275
Pan Am Flight 103
‘economic sanctions against Libya, 285
multilateral approach in dealing with attack on, 49
“Pancho” Villa, US cavalry's pursuit of, 72
Paramillitary assistance, covert activities in form of, 326
Paris and Salamanca, Schools of, concept of justice developed in, 174-176
Particular or universal nature of ethical theories, described, 111-113
Pattern of aggression, effect of, 31-33
right of defense, 36, 38
Peace and order


Turner 65

peace, breaches of the peace, and acts of aggression,” shows clearly that the U.N.
Charter as a whole prohibits the use of military force save for self-defense and
collective enforcement action (community police action); (3) the blanket prohibi-
tion of the use of force embodied in Article 2(4) suggests that self-help is
inconsistent with the purposes of the United Nations and hence impermissible. .
. . and (5) in the nuclear age, when humanity lives under the shadow of nuclear
holocaust, forcible self-help could readily escalate beyond management. . . .

A contrary view maintains that Article 2(4) is not a blanket prohibition of all uses
of military force and expressly prohibits only those threats or uses of force directed
“against the territorial integrity or political independence of. State, or in any other
manner inconsistent with the Purposes of the United Nations.” When it seeks
neither a territorial change nor a challenge to the political independence of the
State concemed, an act of self-help taken in response to a prior unlawful act, in
order to secure compliance with international law is to help secure “justice,” as
enunciated in Article 2(3) of the Charter, and is not inconsistent with the purposes
of the organization. Hence, Article 2(4) is no necessary bar to an otherwise
permissible act of self-help... .

Accordingly, in the absence of effective collective machinery to protect against
lawlessness and deprivation, the remedy of self-help cannot be ruled out. The
Charter’s general proscription of the use of force was predicated on the estab-
lishment within the United Nations of effective centralized decision and enforce-
ment. So long as this projected condition remains unfulfilled, the general
community cannot afford a paralysis that invites lawlessness and deprivation by
particular States with impunity.

Professor Chen notes that “the remedy of self-help . . . is highly susceptible
to abuse and misuse,” and policy-makers need to consider carefully the ramifica-
tions of seeking an expanded interpretation of this power.

One of the reasons that many scholars seek to define “armed attack” narrowly
is that they do not want a minor border crossing or other small incident to
become a lawful justification for “self-defense” measures which might lead to
a major war. After all, a clear purpose of the United Nations system is to promote
peace. Professor Sorensen writes:

Anmed attack, In establishing whether a State has committed an armed attack or
armed aggression against another State, the following factors must, in varying
degrees, be taken into consideration: military character of the action, intention of
the attacker or aggressor, amount of force used and the resulting seriousness of the
situation, and the ‘priority principle,’ that is, the principle of the first attacker.

It appears to be beyond doubt that an armed attack has occurred when armed
forces of one State, regular, irre; » or armed bands composed of private
individuals controlled by, and in fact remaining under the orders of, the State, start
using violence in or against the territory of another State, or against its forces on
or over the open sea, or its forces that stay in foreign territory either by agreement
of the sovereign or by virtue of a lawful military occupation.

But not any and every occurrence that displays these characteristics is automatically
an armed attack. . . . The notion of an armed attack conveys the idea of the gravity


172 Legal & Moral Constraints on Low-Intensity Conflict

would suggest, that the characteristic contribution of the authors of these two
Schools (St. Thomas Aquinas and his disciple John of Paris, and Vitoria of
Salamanca) was precisely to challenge the interventionist claims of the Holy
Roman Empire in the 13th and 14th centuries, and of the Spanish Crown (and
Roman Emperor) in the 16th centuries. If this historical claim can be established,
it might be more accurate to assert that some (but not all) leading thinkers of the
just war tradition were more interventionist than contemporary international law
would allow. Such a modification of the profile of just war tradition might
conceivably have consequences for our larger policy discussions throughout these
days.

Contemporary International Law

The teaching of the just war tradition is presented in Professor Johnson’s paper
as a set of standards more open to intervention in the internal affairs of other
sovereign nations than the stance enshrined in contemporary international law.!
Our analysis, then, must begin with a minuscule summary of the comparatively
restrictive standard of the international legal tradition. A familiar summary of that
tradition is found in the United Nations Charter (Chapter I, Article 2 (4)):

All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State. .. .

Since the minimal content of the term “political independence” is the nation’s
right to the government of its own choice, efforts by other governments to
depose extant regimes (even dictatorial or drug trafficking regimes) unequivocally
violates the prohibition stated in Article 2 (4).

This international legal restriction of the threat, or use, of force in order to
change or coerce other governments is, of course, an annoyance to powerful
nations with a strong confidence in the superiority of their own sense of justice
and in their own distinctive political institutions. A sense of the recent history of
the evolution of the principle of nonintervention, as it is now articulated in the
Charter, reveals that it was formulated precisely in reaction to the continuous
intervention by the United States against its neighbors to the south in the early
20th century. Robert Klein traces the emergence of the principle to the insistent
demand by Latin American government officials for guarantees against threats to
their political independence. Specifically, it was U.S. interventions in the staple
of U.S. hemispheric policy, namely, Nicaragua, that ignited the Latin American
demand for a principle of nonintervention (Seventh International Conference
of American States, Montevideo, 1933).2 The United States voted for the
resolution of nonintervention at this Conference. President Roosevelt sub-
sequently refused to intervene to protect the President of Nicaragua, Juan Sacasa,


Teson 91

task of the science of international relations is to study and unveil the complex
international interactions of different national interests that produce diplomatic
confrontation (such as war) and cooperation (including treaties, international

organizations, or, to use modern international relations parlance, “international
regimes”).'4

Now realism thus defined attempts a descriptive explanation of international
behavior. Whatever its merits as a thesis of political science (that is, whether or
not realism adequately describes the causes and effects of international behavior),
there is prima facie nothing in it that logically entails a moral justification of
international behavior. The realist can consistently claim that State X performed
action A because A advanced X’s national interest, but that on independent moral
grounds A was unjustified. He need not claim that an appeal to national interest
counts as a moral justification for international acts.

However, many descriptive realists have, almost imperceptibly, slid into a
normative realist approach, that is, into the view that national interest justifies
international behavior. This has been done, in my view, in two different, though
not inconsistent ways. Some realists have adopted a state of nature approach to
international relations, i.e., the Hobbesian position that nations are always
potentially at war with each other.'® On this view, all is fair in war, the only
measure being one of prudential rationality, that is, that the State should do those
things that advance its national interest. There is no such thing as transnational
justice or morality; thus realists are international moral skeptics.'© Under this
theory, a government makes an international mistake when it does something
(e.g,, starts a war) believing that the act is in the national interest, when in reality
itis not. In these cases, the leaders have failed to perceive the real national interest.

The second path to normative realism is linked to considerations of constitu-
tional philosophy. Under liberal democratic theory, the government is the agent
of the people. It is hired by the citizens of the State to serve their interests. A
consequence of this agency relationship is that significant deviations from this
purpose (e.g., the government seeking its own self-interest) are grounds for
criticism and even in extreme situations, for open revolt. These are the terms of
the vertical social contract, the contract between people and government.!” This
contract specifies the government’s obligation to govern in the interest of the
governed. So far so good.

This job description of the government, however, carries implications for
international relations. A government does not owe any duty to foreigners, since
they do not stand in any contractual relationship with it. A government’s
paramount international duty, then, is to perform those actions which will
maximize the interests of the subjects of the State which it represents. Again,
limitations to foreign policy are those that are dictated by prudence. For example,
a government behaving too aggressively might cause other States to retaliate in
a way that will harm the citizens of the State which it represents. This view is


76 Legal & Moral Constraints on Low-Intensity Conflict

believes Article 51 of the Charter to be quite narrow in scope,'!° suggests that
“ijn all probability, then, only an actual take-off by Soviet planes or missiles
would cause the United States to strike, and in that case the United States is not
‘anticipating’ an armed attack, for the attack would have begun.”!"! But is this
true? After all, for decades during the Cold War nuclear armed bombers would
routinely “take-off” from Soviet bases and fly toward the United States, only to
be diverted at a point short of U.S. territory. American B-47 and B-52 aircraft
flew comparable patterns toward the Soviet Union. Would each such “take-off”
constitute “an armed attack” as Professor Henkin seems to suggest? One would
hardly think so.

Professor Sorensen denies any right of States to use force in anticipatory
self-defense,'! but a few pages later argues:

[I]fan aircraft penetrates the airspace of another State and does not obey the orders
of the local authorities to land, and either refuses to identify itself, or there are
other obstacles to establishing its non-military and peaceful character, force can be
employed against the aircraft, and it may even be shot down. For in the
circumstances described the State may have reason to fear that the aircraft has an
offensive or at least unfriendly purpose, and in view of contemporary developments
in the technology of mass destruction, the State cannot be expected to tolerate,
apart from treaty obligations, the unauthorized presence of unidentified or foreign
military aircraft over its land or sea territory and expose itself to the danger of an
attack. ...

While there is certainly a difference between the two situations—the aircraft
in Sgrensen’s “exception” was in violation of the airspace of the second State—its
conduct can hardly by any reasonable definition be characterized as a clear “armed
attack” as Sorensen asserts the Charter requires for defensive action. In reality,
Professor Sorensen appears to recognize that the nature of modern weapons of
mass destruction does justify some type of “anticipatory self-defense.” Indeed,
he makes the modern case eloquently later in his book when he writes:

Contemporary developments in the technology of war, in particular, the existence
of thermo-nuclear weapons and the speed with which they can be used against an
adversary, raise the delicate problem of the rights of States that are in danger of
armed attack. Today, when the long-range missiles with nuclear warheads are able
to devastate whole regions and countries, the difference between actual and
imminent attack becomes negligible.'*

Whether anticipatory measures of defensive force are justified as a moral matter
is a very subjective issue. If a peaceful State obtains reliable information that a
neighbor has made a decision to attack, and if that neighbor takes measures to
set the stage for an attack, and if the nature of the weapons or the correlation of
forces is such that such an attack would likely preclude serious defensive measures,


164 Legal & Moral Constraints on Low-Intensity Conflict

our cultural understanding of the nature of war, which has traditionally looked
askance at targeting individuals. This is a serious problem that requires to be
examined a bit further.

The just war tradition incorporates the western view of war as conflict among
organized groups. In keeping with its strong prejudice against singling out
individuals, Christian soldiers in the West well into the Middle Ages were
required to do penance after battle in case they had fought with wrong
intention—including hatred of a specific enemy and fighting with intent to harm
him. The chivalric code likewise stressed that combat was a test of valor and
prowess, not an effort to kill other persons; a fallen knight was to be taken
prisoner. Kings and nobles leading their men in battle were, however, considered
fair game for combatants seeking the tactical advantages to be gained by rendering
their opponents leaderless, so long as this was not an excuse for the pursuit of a
personal vendetta. Moreover, what was permissible on the field of battle was
strongly condemned if it happened in the tent. One may see two principles at
work here: that war is not about death but about prevailing, and that war is a
social and not an individual activity. Assassination satisfies neither principle: it
simply does not look like war.

A further negative factor was a general cultural uneasiness about regicide.
Kings who had initiated unjust wars or who had been guilty of particular crimes
against their own subjects are the closest historical analogy we might find to a
modern-day Qadhafi or Saddam Hussein. Both feudal law and religious doctrine
allowed for such a king to be removed from power, by force of arms if necessary.
But the goal was not to kill him, though this might happen in battle; rather the
purpose was to remove him from power and to keep him from resuming power
by imprisonment or exile. Why was regicide so suspect? One reason was the
ancient belief that an aura of sanctity surrounded a king’s person, so that shedding
his blood involved much more than shedding the blood of an ordinary mortal.
Another reason for the traditional aversion to regicide was the fear that it could
shatter the brittle order of feudal society with an uncontrollable chain of reprisals,
I suspect that these concerns retain a considerable influence in contemporary
thinking. And it is not unreasonable to expect that American complicity in the
assasination of a foreign head of State could place the life of our own president
at risk.

Our cultural predjudice against assasination also stemmed from a dislike of the
means involved. A favorite weapon of regicides, poison has historically been
regarded as a means mala in se (evil in itself). A use of arms that denied the victim
a fair fight was considered dishonorable. Trapping the target or luring him into
a vulnerable position was also thought likely to depend on an inadmissible use
of deception.

Finally, and by no means least, assassination has simply always looked too much
like murder. If it is not war, if it is brought about unfairly, by stealth or by


Johnson 167

for American troops, who often found it hard to distinguish combatants from
noncombatants in guerilla-controlled territory.

With a degree of trepidation, I will draw some cautionary observations from
this unclear history. Deception in itselfis not a moral problem; yet in some forms
it does raise moral questions. In particular, there may be violations of fairness
which lead to acts that resemble murder more than war; this is one of the
difficulties with assassination, as noted above. It is also the problem Walzer’s
example presents. There are other forms of deception which erode the possibility
of observing noncombatant immunity, as amply demonstrated by our experience
in Vietnam, where it was often impossible to distinguish the Viet Cong from
civilian noncombatants. Or deception may depend on putting noncombatants at
tisk, This is the problem posed by Mao’s dictum that guerillas should live among
the populace like fish in the sea, and it is the problem posed by the PLO’s habit
of basing itself in the midst of civilian settlements. I believe that all these cases
involve impermissible deception and, while there may be other variations of this
practice, its distinguishing characteristic remains the obscuring of conditions that
impose moral restraints on the use of force. Other forms of deception that do
not undermine these restraints are permissible.

Ill. Conclusion: Conditions for the Moral
Use of Force in Low-Intensity Conflict

The burden of my argument in Part II of this paper has been to demonstrate
that the precepts of the just war tradition are particularly well suited to clarifying
the moral perplexities of low-intensity conflict. To summarize:

1) The terms and conditions defined in the jus ad bellum and jus in bello of

just war tradition should be the basis for deliberation on the morality of
particular policies and actions in low-intensity conflict. These terms and
conditions may imply the use of force and set limits to it, or they may imply
means short of force. The rules drawn from just war tradition apply equally
to low-intensity conflict and full-scale war, but they encounter different
challenges in each. When the United States has formally declared war, the
condition of right authority has been satisfied by the congressional decla-
ration, which ideally follows from an assessment that just cause, right
intention, and the other jus ad bellum conditions are satisfied. In low-inten-
sity conflict situations, a congressional pronouncement is absent, and the
jus ad bellum concerns must be addressed differently, but they must be
satisfied,

2) In assessing the justification for involvement in low-intensity conflict,
what may morally be done does not by itself dictate what must be done.
Even where just cause exists, remedying the evil in question may be the


44 Legal & Moral Constraints on Low-Intensity Conflict

international law we decide to embrace must apply universally across the
spectrum of nations in the world community. Before the United States claims a
right to enter foreign territory to deal firmly with terrorists or drug lords, we
need to consider the consequences of making lawful similar conduct by the
governments of Saddam Hussein, Moammar Qadhafi, and other radical regimes
who may have a different concept of who is a “terrorist.” Above all, while there
may well be instances in which the United States concludes it must depart from
the rules of international law in defense of its national security, we should keep
in mind the tremendous benefits we receive from the existence ofa stable world
legal order and make every reasonable effort to preserve and nurture this maturing
instrument of peace and justice.

Maintaining the Jeffersonian
Tradition of Honor and Justice

As Sir Thomas More acknowledged, the temptation to “strike down all the
laws of England” to get at “the Devil” is a great one; but we must resist that
temptation and recognize that living in a world governed by an effective rule of
law is in our long-term national interest.

To be sure, Thomas Jefferson acknowledged that there may be extreme
circumstances in which the rule of law must give way to the survival of the nation.
In an 1810 letter to J.B. Colvin, Jefferson wrote:

A strict observance of the written law is doubtless one of the high duties of'a good
citizen, but is not the highest. The laws of necessity, of self-preservation, of saving
our country when in danger, are of higher obligation. To lose our country by a
scrupulous adherence to written law, would be to lose the law itself, with life,
liberty, property and all those who are enjoying them with us; thus absurdly
sacrificing the end to the means."

Professor W.E. Hall went even further, appearing to argue that international
law permitted virtually any measure that was necessary for a State’s survival.? But
such situations are extremely rare, and when we are tempted to twist the rules a
little to promote what we perceive to be the interests of our nation, we need to
carefully comprehend and weigh the costs associated with being regarded as a
Jawbreaker by other nations in the world community. To this, as well, must be
added the risks of inadvertently modifying the accepted rules of international
behavior in ways that might benefit radical regimes and other potential aggressors.

A valuable part of the diverse legacy left us by Jefferson was a well thought
out philosophy of foreign relations. His foreign policy was premised upon two
complementary ideas: (1) peace through justice, and (2) peace through strength.
We would do well to emulate his approach to world affairs.


40 Legal & Moral Constraints on Low-Intensity Conflict

2. See RUMMEL, LETHAL POLITICS: SOVIET GENOCIDES AND MASS MURDERS SINCE 1917 (1990).

3, House Republican Research Committee Task Force on Terrorism & Unconventional Warfare, Libyan
Terorism 5 (Jan. 7, 1992).

4. Henkin, Use of Force: Law and U.S. Policy, in RIGHT V. MIGHT: INTERNATIONAL LAW AND THE
‘USE OF FORCE 37, 50 (1989).

5. Id, at 54,

6. Id, at 62.

7. Falk, The Cambodian Operation and International Law, in I THE VIETNAM WAR AND INTERNA-
TIONAL LAW: THE WIDENING CONTEXT 33, 50 (Falk ed. 1972), Compare this view with Moore,
Intemational Law and the United States Role in Vieinam: A Reply to Profesor Falk, reprinted in MOORE, LAW AND
‘THE INDO-CHINA WAR 403-457 (1972).

8. Sce Paust, The Seizure and Recovery of the Mayaguez, 83 Yale L. J. 774, 774-81, 795-803 (1976).

9. BOYLE, DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAW 335 (1987).

10. 14, at 332,

11. Chayes, The Use of Force in the Persian Gulf (paper prepared for the U.S.-Soviet Conference on the
Non-Use of Force, October 4-6, 1990, copy in possession of author).

12. Rubin, Iraq, Kuwait, the United Nations and World Order, Int'l Practioner’s Notebook 18 (Feb. 1991).

13. Schachter, United Nations Law in the Gulf Conflic, 85 Am. J. Int'l L. 452 (1991).

14. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 Am.
J. Inv. 16 (1991). Compare this view with the recent unpublished paper by Professor Inis Claude entitled
Collective Security after the Gulf War, prepared for the Army War College Conference April 1992, which
concludes that great power pressure may even be a requirement for an effective United Nations stand against
aggression.

15. See also Yoxall, Iraq and Article 54: A Correct Use of Limited Authority, The Int'l Law. 967, 985 (1991).
“While Article 51 might have supported an offensive counterattack on Iraq in early August, by mid-October
that option no longer existed.” Id.

16, See Ramsey Clark's Crusade, Legal Times (Sept. 2,1991) at 2.

17. “Benn blames war on US. bid to control Iraqi oil,” The Press Association Limited, Press Association
Newsfile, December 1, 1991.

18. Anti-War Tribunal Blasts Bush, U.S. Military for Gulf War, Reuters News Service, May 11, 1991.

19. Arkin, Durrant, & Cheri, On Impact: Modem Warfare and the Envitonment—A. Case Study of the Gulf
War (May 1991). (A Greenpeace Study).

20. Livingston, Siraight Talk About National Principles, Sea Power 21-22 (October 1991).

21. See the authorities collected in MOORE, THE SECRET WAR IN CENTRAL AMERICA (1986) and
the dissenting opinion of Judge Schwebel in the Military and Paramilitary Activities Case (Nicar. v. U.S.), 1986
LCJ. 14, 259, 334, para. 167. See also, for one of the best general treatments of this subject, MCDOUGAL &
FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961) and Erickson, Legitimate Use of Military
Force Against State-Sponsored Intemational Terrorism, Air Univ. Press, July 1989.

22, See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 1990,
US. Commission on Security and Cooperation in Europe, Washington, D.C.

23, For the intentional breadth of the concept of “rule of law” here, see Moore, The Rule of Law: An
Overview, presented to the Seminar on the Rule of Law, Moscow and Leningrad, USSR, March 19-23, 1990.
‘The author presented this paper while serving as Co-Chairman, with the U.S. Deputy Attomey General, of
the U.S, Delegation to the Moscow—Leningrad Seminar on the Ruile of Law.

The “rule of law,” as intended here, explicitly does not mean observing the legal niceties on the way to
the Gulag. Rather, the principal fundaments of the rule of law are:

* government of the people, by the people, and for the people; [for the origin of this phrasing, see
Abraham Lincoln, Gettysburg Address (Nov. 19,1863.), See also the French Constitution]

* separation of powers and checks and balances;

+ representative democracy and procedural and substantive limits on governmental action against
the individual (the protection of human freedom and dignity);

* limited government and federalism; and review by an independent judiciary as a central
mechanism for constitutional enforcement. Moore, The Rule of Law: An Overview, supra,

Foran example of rule of law engagement incorporated into contemporary U.S. foreign policy, see National
Security Strategy of the United States, August 1991, at 14, col. 1 (U.S. Goverament Printing Office, 1991).




Panel Discussion 219
FR. WINTERS: That’s another story.

JUDGE SOFAER: They are clearly success stories. I think it is obviously
true that cultural complexity is written in the descriptive history. Some of us
would say by the author of history, beyond the history. But cultural com-
plexity does not absolve us from making some important discriminating
judgements at certain points. For example, Saddam Hussein may believe, for
a combination of ideological, religious and practical reasons, that he has an
obligation to acquire nuclear weapons. This may stem, not from lunacy, but
from his own sense of justice and the obligations of leadership. It does not
seem to me necessary to rhaintain that we have any obligation to accept his
idiosyncratic view of justice at all. Moreover, I would say that in the case of
Saddam Hussein in particular, his signature of the U.N. cease-fire agreement
and subsequent violation of it suggest that he has made the decision to play
ball on our legal and moral court. The problems of non-proliferation and its
relationship to just war tradition is clearly going to be on the agenda sometime
in the near future.

FR. WINTERS: About Saddam Hussein, I concede that he has signed, for
whatever reason. I must say it’s one of the most baffling things about Saddam.
Hussein, that is why he signed this treaty. But at any rate, he signed the treaty
agreeing that these things would be dismantled. I tried to get off the theoretical
hook by saying, Saddam Hussein agreed to this. We can do what has to be done
militarily to make him live up to that.

What would we have done if we had found out without going to war with
him that he was on the brink of acquiring nuclear weapons? I think it’s an
extraordinarily complex question because to do something about it involves use
of a double standard, and I try to maintain in the paper that there’s nothing in
the just war tradition which would justify using a double standard in that case.
Nevertheless, I think it would be wise for us to do something about it. How you
would make a moral case for it, I would be the last person to know.

JUDGE SOFAER: The double standard being what, that we have nuclear
weapons—

FR. WINTERS: We have nuclear weapons, they do not. I would have to go
slowly with that. I mean, Israel has them and we're denying them to Iraq.

JUDGE SOFAER: You would surely admit that no sane person operating
through the just war tradition would say that we have any moral justification to
do something about the British nuclear submarine force.


Moore 31

the important role a revitalized legal system could play. That legal system,
however, must get back to basics. Aggression, whether overt or covert, must be
clearly condemned. Defense, whether overt or covert, must be clearly supported
and assisted. And it must be understood that it is the difference between the systemic
treatment of aggression and defense that will largely determine whether the legal
system will play a significant role in war avoidance.

Sadly, however, there are many reasons to believe that, particularly when
confronted with low-intensity conflict, the present international legal system.
suffers from a severe auto-immune disease that compels it to treat the defensive
response more severely than the aggressive attack. Typically, many international
lawyers will respond to United States assistance and efforts toward collective
defense against low-intensity aggression, such as assistance to the Contras or the
raid on Libya, by ignoring the aggressive attack which precipitated the U.S. action
and by focusing their objections on the U.S. defensive response. By ignoring the
long-term pattern of aggressive low- and mid-intensity attack, these “restric-
tivist” or “minimalist” international lawyers characterize the response as an illegal
“reprisal” to a single incident, or they over narrowly condemn the action as
non-proportional, even if, in reality, the action is insufficient to end the
continuing low-intensity aggressive attack.

The following excerpts from the legal literature, condemning defensive
responses to low-intensity attack, with little focus on the precipitating aggression,
provide all too recurrent examples of the auto-immune disease.

One of the best known American international lawyers is Professor Louis
Henkin of Columbia University. I will pick on him first precisely because he is
one of the most able international lawyers and is not a polemicist. In a recent
chapter “Use of Force: Law and U.S. Policy” done for the prestigious Council
on Foreign Relations, Professor Henkin argues in support of the majority opinion
of the International Court of Justice in the Nicaragua Case (and against the
dissenting opinion of Judge Stephen Schwebel of the United States): “Ex-
travagant claims of right to act in self-defense have been the principal threat to
the law of the Charter.”* Just think about that one! Does Professor Henkin really
believe that World War II (remember that the Kellogg-Briand Pact already
incorporated the non-aggression proscription of the Charter along with the right
of defense), the Korean War, the Vietnam War, the Soviet invasion of Afghanis-
tan or the recent Gulf conflict (occurring as Professor Henkin wrote his chapter),
among others, resulted from difficulties in seriously differentiating aggression
from defense? Does he really believe that Hitler, Kim Il Sung and Saddam
Hussein were actually confused as to the scope of the right of lawful defense?
These “principal threats” to the Charter did not result from an expansion of the
right of defense but rather because of a willingness by aggressive totalitarian
regimes to commit aggression and a system perceived by them as unlikely to
provide effective defense. True to form, Professor Henkin then goes on to


Weigel 253

Il. The Necessity of Leadership

Engaging that moral argument is not an exercise in abstraction. The kind of
morally reflective statecraft suggested by the logic of the just war tradition requires
that we take carefiul stock of our empirical circumstances. That means, among
other things, taking the temperature of the American body politic.

It is not always pleasant to have one’s forecasts vindicated. And those of us
who were writing, in the late 1980s, that the foreign policy debate of the 1990s
was likely to be a reprise of the 1930s contest between internationalists and
isolationists (or “non-interventionists,” or “new nationalists,” or whatever)
would just have soon have been proven wrong. Alas, we were right.

This debate is, quite obviously, crucial to the future of the debate over
low-intensity conflict. If the isolationists win, much of the debate over low-in-
tensity conflict will become moot. There may be residual support for certain
anti-terrorist and counter-terrorist activities, and perhaps for a modest U.S. role
in such contingency operations as disaster relief and shows of force. But that will
be about it.

‘What would it mean for the new isolationism to “win?” It is difficult to
imagine the circumstances in which the American people buy the new isola-
tionism whole hog, and retreat into the kind of demi-hemispheric Fortress
America proposed by Patrick J. Buchanan? But it would not require so
comprehensive a victory by the new isolationists to push the low-intensity
conflict option to the far nether reaches of the policy menu. “Winning,” in this
political-cultural sense, means simply that the American people decline to take
up the burden of leadership in a newly unipolar world and that the United States
becomes, in consequence, a reactive, rather than pro-active, power in world
politics: content with guarding its interests (rather narrowly construed), and
resolutely eschewing any serious attempt to shape a new world security system
in the aftermath of the Cold War.

The American people have every reason to want a break at the end of the
Cold War. If we think of the Cold War (as I believe we should) as the second
stage of the great anti-totalitarian war that began in 1939, the United States was
in something resembling a state of war for over fifty years (from the point at
which President Roosevelt began the clandestine war against German U-boats
in the North Atlantic in 1940, until August 21, 1991, at which point the USSR.
ceased to exist as an effective political entity). And no doubt there are reasonable
arguments for scaling back some of our commitments — political and budgetary
— in the aftermath of our victory.

But the end of the Cold War has not seen the sudden outbreak of “multi-
polarity,” as many in the international relations guild seemed to expect. “Europe”
does not exist as a meaningful political reality, as the ruins of Dubrovnik mutely
attest. Nippobashing aside, Japan is a great power in economic terms alone; and


Panel Discussion 301

neutralize and avoid mines, which were sprinkled all over their country. We did
that for several years, But that does take congressional support. The Special
Operations Command and Assistant Secretary of Defense of Special Operations
and Low Intensity Conflict (ASD-SOLIC) are creatures of Congress. They exist
today because Congress passed that legislation. We can’t engage in long-term
activities without solid congressional support. I don’t shy away from it. We had
very direct congressional involvement in El Salvador on the military side. We
were expressly limited to 55 advisors. We did that year in and year out. But, the
result is that now we have a negotiated settlement between the government and
the Farabundo Marti National Liberation Front (FMLN). That’s not an unhappy
outcome and we did it with intense congressional scrutiny.

RADM HARLOW: Well, I thank all the panelists for their excellent presen-
tations.


Moore 35

study” would seem to charge the United Nations coalition with causing as much
damage to the Gulf’s environment as the eco-terrorism of Saddam Hussein.!?

Incredibly, there are even numerous examples of strenuous governmental.
efforts to exempt terrorists or others engaged in low-intensity aggressive attacks
from normal national criminal justice systems. Neil C. Livingston gives the
following account of efforts made by elements within the German government
first to prevent the conviction of Mohammed Hamadi for the 1985 hijacking of
TWA 847 and the torture murder of U.S. sailor Robert Dean Stethem, and then,
to have him released in a hostage exchange after the terrorist was convicted
despite their best efforts:

[Plethaps the greatest focus of attention has been on the Hamadi brothers,
Mohammed and Abbas, who are incarcerated in Germany. Mohammed Hamadi
was convicted of the 1985 hijacking of TWA flight 847 and the brutal murder, on
board the aircraft, of a U.S. Navyman, Robert Dean Stethem, and in 1989 was
sentenced bya German court to “life” in prison. In Germany, a life sentence means
that Hamadi has to serve a minimum of 15 years before becoming eligible for
parole. His brother, Abbas, by contrast, is serving a 13-year sentence for kidnapping
two German businessmen (in an unsuccessfll plot to trade them for Mohammed).

In the middle of August, reports surfaced that the German government was willing
to release the Hamadi brothers as part of any hostage/prisoner exchange. Accord-
ing to the reports, the Hamadis were to be included in a comprehensive hostage/
prisoner exchange brokered by United Nations Secretary General Javier Perez de
Cuellar. (President Bush subsequently indicated that he probably would be inclined
to approve any deal reached by Perez de Cuellar with the kidnappers.)

Senior U.S. officials say that the German government has long been attempting to
unload the Hamadis in any case, primarily for political and economic reasons. The
continued incarceration of the two brothers complicates German trade with the
Arab world, That probably is one of the reasons why, earlier, the then West
German government attempted in every way possible to prevent the prosecution
of Mohammed Hamadi after he had been located on German territory by U.S.
intelligence.

Not only were the Germans reluctant to pick up Hamadi in the first place, U.S.
officials pointed out, but the Bonn government demanded, after the United States
officially requested his extradition, that there be an unprecedented extradition
heating and lineup to establish that the man captured really was Mohammed
Hamadi. Incredibly, when the U.S. Attorney for the District of Columbia and
USS. Justice Department representatives arrived in Germany, along with a number
of passengers who had been aboard the ill-fated plane, they found that the entire
lineup was composed of what one of the terrorized passengers later described as
“Hamadi clones.” All were approximately the same height and were dressed in
similar clothing. They even wore wigs and makeup designed to further obliterate
their individual physical differences.

Remarkably, though, the passengers had no trouble picking Hamadi out of the
lineup, much to the chagrin of the German government, apparently. It was
Hamadi’s eyes, the passengers said later—"They were like two burning coals."


Panel Discussion 245

pattern. It involves States and international organizations and all the people who
participate in them.

Judge Sofaer said that high policymakers sometimes don’t consult their
international lawyers when they make decisions. That doesn’t mean that what
they’re doing is not international law. That is international law. That’s the stuff
of international law, and the expectations that their deeds create are what it’s all
about. Bill, in an earlier intervention, said that he had no truck with people who
kept quoting and dissecting the language of the United Nations Charter decades
after is was concluded. He is interested in practice, what was actually done. But
the practice of the Security Council or the General Assembly cannot be excluded
from this whole rich process. That’s what we have to look at. If we don’t, what
‘we're going to do is create a taxidermological creature that has all the vitality of
a stuffed ow] and you know that’s not what international law is about.

Now, what are we looking for? We’re looking for the expectations that are
shared by politically relevant actors. That’s what our decisionmakers come up
against when they want to make a choice. The question they ask themselves is,
if we do this are others going to characterize it as impermissible, and if they do,
what price are they going to impose? The price may be quite small or it may be
quite large. This is really the stuff of international law and this is what we should
be pointing out. If the decisionmakers who are paying our fees don’t call us, then
it’s obvious that we're not providing them with the right information. I don’t
think the 25 lawyers that Tom is concerned about are in any position to make
judgements, or for that matter to speak about international law unless they can
show us that they go through this process, and I don’t think they do.

Bill, I think, in presenting what he calls the natural law approach and criticizing
the international law approach, is really just using a different perspective on
international law. What he calls natural law is very close to the perspective that
I think has been taken at New Haven and many other places over the years.
There are a number of different ways of looking at the law. It’s a very complex
creature. Take John Austin’s famous statement, “Law is the order of political
superior to political inferior, accompanied by the imposition of an evil for
deviation.” You've got a political superior. You’ve got a political inferior. You
have communication. That's John Austin’s classic definition. If your perspective
is that of the political inferior and you’re the receiver, then you tend to look at
law in a certain way. But if your perspective is that of the political superior, and
that I submit is the perspective you adopt on behalf of your clients, then you
Jook at things quite differently. Then you ask yourself, what are the larger goals
of the system? What are the conditions that I’ve got to deal with here? What are
the past trends? What are the conditions that accounted for them? What are the
likely consequences of different future choices and what options can I invent?
‘What's the power process that I’m dealing with? These are the factors that Bill
calls a modern natural law. I submit to you that it is the perspective from which


64 Legal & Mora! Constraints on Low-intensity Conflict

thus the historic right of States to use necessary and proportional force in their
own defense, or in defense of other peaceful States who are victims of armed
aggression, was expressly preserved.

Self-Defense and Low-Intensity Conflict

The right of self-defense (and of collective self-defense) clearly exists in the
case of massive, open, and direct aggression—such as the August 1990 Iraqi
invasion of Kuwait. But the student of low-intensity conflict is likely to be more
concerned about the doctrine’s scope in connection with small-scale covert
aggression, or sporadic incidents of terrorism. Although some writers argue that
the inclusion of the words “armed attack” in Article 51 of the U.N. Charter
implicitly prohibits States from engaging in measures of self-defense in response
to lower-intensity forms of aggression,’ this position is unpersuasive.

To begin with, the equally authentic French-language text of Article 51 says
agression armée (“armed aggression”), which is less subject to interpretation as
requiring a massive “attack” before defensive measures are permitted. As will be
discussed, the travaux préparatories of Article 51 also supports the interpretation
that it was not intended to limit the pre-existing rights of States to defend
themselves against uses of force by other States. Furthermore, a careful reading
of Article 2(4) of the Charter—the textual embodiment of the modern prohibi-
tion against the use of force in international relations—suggests that traditional
measures of self-defense are not barred by the Charter. The article says:

All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in
any other manner inconsistent with the Purposes of the United Nations.

A brief, necessary, and proportional use of force in response to a terrorist attack
is not an attack “against the territorial integrity or political independence” of any
state.

Reconciling Articles 2(4) and 51 of the Charter

International lawyers are divided on the scope of Article 2(4). As explained
by Professor Lung-chu Chen, in his 1989 work, An Introduction to Contemporary
International Law :

One view takes the position that self-help, beyond self-defense, is impermis-
sible. The arguments for this view may be summarized as follows: (1) Articles
2(3) and 2(4) of the Charter project the fundamental community policies of
promoting peaceful change and of minimizing coercion; (2) Article 2(4), read
in conjunction with Article 51, and the rest of the provisions contained in
Chapter VII of the Charter, dealing with “action with respect to threats to the


Panel Discussion 287

at our disposal to deal with low-intensity conflict. But I submit that we, in fact,
lack the will to engage in most forms of low-intensity conflict. We are willing
to engage in only the most classic types of special operations applications which.
have been traditionally part of military activities. I believe this lack of will
precedes from the perception that, by and large, the means and ends of
low-intensity operations are not in keeping with American political and moral
values.

I have a second point which may seem somewhat curious in light of my first
proposition. It isn’t so much that moral and legal limitations constrain the work
of creating and implementing policy. It is rather that the virtual absence of a
moral and legal framework for formulating and implementing our engagements
at the low end of the conflict spectrum seriously inhibits consideration of effective
low-intensity engagement.

Let me say a few things then about that American political tradition and some
of the points that I take from it.

I think the conduct of American international relations is inseparably bound
up in the moral and legal values that are revealed in our history, traditions, and
temperament. These national characteristics, together with the understanding of
international political realities peculiar to America, shape our general approach
to foreign policy. Throughout our history, American statesmen, and almost
certainly the American people as well, have conceived of our place and purpose
in the world in a special and largely moral way. From the earliest days of the
Republic, American thought has conceived of the nation as a new world apart,
distinct from the despotic European order in which foreign policy was driven
by base expedience or morally bankrupt constructs such as the balance of power.
According to this deeply held myth, our foreign policy goals reflect the idealistic
vision of a new type of political community, essentially moral and universal in
its principles of personal liberty and democratic government.

As one student of early American political thought has noted of this motivating
legend, “America is the land of the future, where innocent men belong to a
society of virtuous simplicity, enjoying liberty, equality and happiness; Europe
is the bankrupt past, where fallen men wander without hope in a dark labyrinth,
degraded by tyranny, injustice and vice.”

The United States was to become the model society for the universe and make
a profound contribution to mankind’s political redemption. The Founding
Fathers saw it as the vehicle for the realization throughout the world of what
were then called “The Natural Rights of Man.” This vision of America’s future
in world politics cut across almost all of the partisan and ideological divisions of
the period. We find Ben Franklin observing that “the cause of America is the
cause of all mankind; assigned to us by providence.” Thomas Paine found the
American Revolution, “the most virtuous and illustrious revolution that ever

graced the history of mankind, the harbinger that creates the new world order


800 Legal & Moral Constraints on Low-Intensity Conflict

as premised on a new and unique law enforcement principle, I think it can be
more accurately characterized as a preemptive strike asserting the inherent right
of anticipatory self-defense. In other words, based on necessity, the low-intensity
conflict operation escalated from the legal arena of law enforcement to the arena
of national security/self-defense. Incidentally, it seems to me that the strike did
have the desired deterrent effect. Our evidence indicates that Libya’s support for
international terrorism waned appreciably in the years following the action.

PROF. TESON: I learned a lot from both presentations. Very, very useful. I
just wanted to talk about Ken’s presentation. I was amused by the Jamesian
description of the American sense of our place in the world. In James’ novels,
American characters are the embodiment of somewhat unsophisticated in-
nocence and moral virtue, whereas Europeans represent a sophisticated devious-
ness and greed. It’s very interesting to see how, not just in the speeches of
politicians, but also in the literature, this dichotomy is really constant in American
thought and the make-believe place that Americans see for themselves in the
world, But, just to focus on one point. You mentioned briefly that the ordinary
American citizen has problems with low-intensity operations, It’s hard for them
to see force as justified other than to defeat evil. When force is used simply to
improve the American situation in the world, then the American citizen rebels
against it. Well, it seems to me that the average American citizen’s sense of
morality is right on the mark. If we are going to offer only strategic justifications
for low-intensity operations, we will not satisfy the American tradition, nor will
we comply with the Clausewitzian requirement that we get the support of our
people. So, this Kissingerian idea that the world is a great chess board and we
just have to make the right moves without regard to morality is the wrong way
to go. Once we have resolved the prior demands of conscience, then we are
morally justified in achieving our strategic goals.

RADM LEMOYNE: I’m from Special Operations Command, and I must tell
you that those of us in uniform draw a very clear distinction between covert
operations, on the one hand, and clandestine operations, which are done to
maintain operational security. We have very little capacity to conduct covert
operations.

Judge Sofaer was correct in saying that low-intensity conflict operations are
of short duration. Essentially, our special operations capability is bipolar. We have
a surgical strike capability that doesn’t trigger the War Powers Resolution because
it is very quick. Hostage rescue, preemption, and those sorts of things are of very
short duration. On the other hand, low-intensity conflict can take the form ofa
very long-term, low-level engagement. It may not involve lethal military force;
often it must. In addition to supplying the Mujahedin with a whole array of
weaponry, we also taught Afghanis, day in and day out, how to recognize,


126 Legal & Moral Constraints on Low-Intensity Conflict

is to force them to change in ways that usually discriminate in favor of the State
that’s intervening.

T think as a general rule, we should use the power that’s available to us in this
regular process of interaction to encourage the emergence of democratic govern-
ments that honor human rights. This is desirable because there is a fair amount of
evidence that these governments are better citizens of the international community
and because human rights have a value independent of other considerations.

RADM LEMOYNE: Chuck Lemoyne. I’m with the Special Operations
Command.

I would like to follow up on your comment, Professor, about low-intensity
conflict. I think from the military perspective, we tend to view it, not as a discreet
action, but as an environment in which the military plays only a small part. Ideally,
the smallest of all parts. All those other instruments of power are brought to bear
on a daily basis in ways that we generally are never publicly conscious of. So,
I’m afraid of defining low-intensity conflict as a military campaign. From a
military perspective, we’re not comfortable with that. We see it as an environ-
ment in which the economic and political instruments of power should be given
fall play.

PROF. REISMAN: I would add also that in the book that I did with James
Baker—the one who is sitting in the back of the room, not our Secretary of
State—we extended that definition to include diplomacy. All of these factors are
instruments of power that can be used coercively at various levels of intensity,
and should be examined.

Thank you, Admiral Lemoyne.

PROF. SARKESIAN: Sam Sarkesian. Loyola University, Chicago.

I hope at some point we will consider the operational implications that these
rather abstract notions such as just war and sovereignty have for our people on
the ground. We need to be clear about these implications because they require
us to adhere to moral and legal standards not likely to be shared by our opponents
in the grim arena of low-intensity conflict.

I would also hope we can acknowledge that there are different strategic
cultures which view the law of war very differently from us. They may even
interpret the United Nations Charter in a completely different way. I would
venture to say that there are other peoples who perceive nothing morally or
legally problematic in low-intensity conflict.

PROF. REISMAN: I think these are very appropriate observations. Perhaps
our speakers could address them. Tom, would you like to start?


Panel Discussion 119

the effect, and sometimes I felt it was designed to have the effect, of preventing
us from asking ourselves whether the objectives of our opponents, the substantive
ends of presumptive opponents, were wholly unreasonable or incompatible with
our interests. We concentrated entirely on the means that presumptive enemies
employed,

To give you an example of what I mean: we often talk about the problem of
the Middle East in terms of radical Arabs using low-intensity conflict against the
United States. Having so defined the problem, we concentrate on devising
responsive strategies. Even a very moderate Arab might look at the problem
differently. He might well say, “this is the way U.S. policy has worked in the
Middle East: (a) it’s worked to enable the Israelis to annex operationally part of
the occupied territories of the West Bank and to turn the remainder into
Bantustans, in the process depriving the Palestinians of the rights of citizenship
in the lands of their birth; (b) U.S. policy has operated to maintain the divisions
of the Arab world, which were largely laid out by Britain when it was the
dominant imperial force in the Middle East.” In other words, it has functioned
to maximize Arab weakness and to sustain the concentration of the area’s natural
wealth in the hands of a few greedy and corrupt princes and emirs. Moreover,
in deciding how to assess and respond to aggression, the U.S. has been completely
arbitrary in normative terms.

In 1980 Iraq committed naked aggression against Iran. We assisted Iraq in
avoiding defeat. In 1990, Iraq committed naked aggression against Kuwait, and
we responded effectively to thwart naked aggression and to punish the aggressor.
The U.S. record in the Middle East, is therefore, not one of the evenhanded
application of international norms.

Now, let me sum up these somewhat disjointed remarks. Maybe I can pull
them together.

First, we need to rethink the larger ends of American policy in the light of
the new international structures of power and interest. In particular, I think we
need to address the question: Do we want, and do we think it’s in our vital
interests, to freeze all existing international frontiers, to freeze, that is, the
allocation of all territories and all resources inherited from eras marked by
different values, human needs and power structures? It may be desirable to
attempt to freeze the inheritance; but I don’t think we can simply assume that.

Secondly, I think we should recognize and admit that there’s nothing new
about low-intensity conflict. It is millennia old, and if we're particularly con-
cerned about it today, we better ask ourselves why? Is there something new about
it in terms of a threat to the United States?

Third, I think that we should ask ourselves whether, at least in contemporary
circumstances, we should resist the temptation of unipolarity—assuming unipo-
larity actually exists, given the very many constraints on the application of our


xvil

Although the symposium that occasioned this volume is far from the first large
meeting convened to discuss low-intensity conflict, the deliberations of previous
conferences have tended to revolve around the practical concerns described
above. As an example, of the 68 papers presented at the 1990 American Defense
Preparedness Association Special Operations/Low-Intensity Conflict Sym-
posium, only a handful dealt with doctrine and policy, and of those few, none
addressed the issue of moral and legal constraints on our ability to engage in
low-intensity conflict.

For those concerned to ground U.S. policy on principles that go beyond what
is pragmatic, the neglect of these fiindamental normative and cultural issues
became more obvious as the Cold War order crumbled. The comforting notion
that our uneasy instability was but the twilight prelude to a fresh dawn in world
affairs was made increasingly implausible by the refusal of'a new order to emerge.
The suck and eddy of this great tidal flux would inevitably tug painfully at many
of our interests abroad in unpredictable ways. The death of the Soviet Union
simply multiplied the subconventional challenges facing the United States while
removing the grand exigency that had justified past low-intensity conflict
strategies.

The end of the Cold War naturally required every aspect of American security
policy to be examined in the light of changing conditions abroad and heightened
international expectations that we serve as an arbiter of order and justice. But
the gravamen of the case for rethinking our approach to low-intensity conflict
resided more particularly in the need to understand how a democracy could
morally countenance a continued or expanded involvement in warlike activities
lacking the appealing moral clarity of the two World Wars, uncertain of
legislative sanction and prompted by no obvious, general threat to our security
such as had been provided by communism. If the most potent limitation on our
conduct of “low-intensity” or “unconventional” operations was the generalized
discomfort of the American body politic with them, then surely it made sense
to understand precisely the nature of the reservations, how far they were
immutable or transient, and what latitude they might reasonably be expected to
afford future low-intensity conflict policy makers.

The task of elucidating the questions raised by the new focus of the
low-intensity conflict policy directorate was clearly beyond the portfolio of any
government department. They involved a complex mix of legal, historical and
cultural considerations that could only be addressed by an assortment of experts
steeped in these various aspects of the low-intensity conflict conundrum. The
perception that the intellectual cartography of all those in the U.S. defense and
foreign policy establishments would have to be reoriented to an as yet unclear
landscape lent the task a feeling of historic moment and imbued it with
philosophical, introspective undertones. The time was ripe to bring together an
unusual combination of theoreticians and practitioners to consider in depth the


264 Legal & Moral Constraints on Low-Intensity Conflict

national social agenda — crime, drugs, welfare reform, the urban underclass,
education — are increasingly understood, and by liberals as well as conservatives,
to be primarily questions of character, in the addressing of which government is
a singularly clumsy and singularly inefficient actor. Thus, the end of the
Rousseau-inspired tyranny of the political in grand world politics has intersected
with a rediscovery of the crucial importance of the virtues in a democratic
republic and with an era of budgetary restraint to produce, as I say, a “post-politi-
cal” era in American public life.

There is much in this that we should welcome. The danger, as I see it, is that
our political leadership, reinforced by the ideological convictions and trendiness
of both the press and the academy, will conclude that, under these circumstances,
a gentle isolationism really is the way to go. And that would be a mistake.

It would be a mistake because the world is inextricably “interdependent” —
or at least inextricably interconnected — and any attempt to withdraw from it
will inevitably make the task of tending our own republican garden even more
difficult. It would be a mistake because we do have, at the end of this bloodiest
of centuries, the opportunity to set a pattern for international relations that is
something other than Hobbes’s war of all against all. And it would be a mistake
because it would be morally demeaning: for nations, as well as for individuals,
to set themselves up as islands, entirely unto themselves, is to choose for a crabbed
and narrow conception of their responsibilities.

Should we summon the will to assume the leadership in world affairs that
could be ours, a careful public moral exploration of the problems and prospects
of low-intensity conflict will be essential — for these are precisely the kinds of
conflicts that seem likely to dominate the post-Cold War international arena.
But that exploration will not take place at the level of seriousness it deserves
unless and until the prior question — America First, or America first among the
leaders of the world? — is settled, and in favor of the latter understanding of who
we are and what we should be. That, and nothing less than that, is the key issue
of “constraint” that low-intensity conflict planners face in the next period.

Notes

*GEORGE WEIGEL, a Roman Catholic theologian, is President of the Ethics and Public Policy Center in
‘Washington.

1. Weigel, War, Peace, and the Christian Conscience, in JUST WAR AND THE GULF WAR (Johnson and
‘Weigel eds. 1991).

2, Buchanan, America First: A Foreign Policy for the Rest of Us, in EJB FROM THE RIGHT (September 1991).

3. President Bush did, in the main, do an exceptionally fine job of explaining what was at stake in the
Gulf crisis, and in defining the nation’s short-term interests and goals in resisting Iraqi aggression. But there
was litde attempt to relate this crisis to the larger scheme of things in the post-Cold War world, Thus the
emblematic phrase for the administration’s putative grand design aad its doctrinal replacement for “contain
ment” — the “new world order” — remained essentially without content.

4, Johnson, The Just War Tradition and the American Military, in JUST WAR AND THE GULF WAR at 22
(ohnson and Weigel eds. 1991).


382 Index

Reprisal: See Self-defense
Republican Party (US), leadership role of, 254-255
Request for help: See Invitation, intervention by
Retorsion: See Self-defense
Revenge: See Right intention
Revolutions and revolutionary conflicts
Catholic clergy’s opposition to, history of, 229
French military view of, 269
illegitimate governments, low-intensity conflicts against, 102-104
insurgency: See Insurgency or counterinsurgency
tion,” what constitutes, 189, 229, 236
protracted conflicts, absence of leadership in, 269
roots of just war tradition within, 215-216
Right intention (jus ad bellum), 191-192
just cause, strict adherence to, 230
medieval sources, 150, 164
moral limits on discretionary powers, 159
‘Weinberger Doctrine, 157
“Right” or competent authority (jus ad bellum)
balance of power in US government, 158-159, 228
definitions of, problematic nature of, 235-236
Gulf War, UN Resolution 636, 150
historical background, 158-159
law, competent authority discussed in terms of, 186-189, 280
Peace of God movement, 158, 215
sovereignty as issue in, 212, 248
Rostow, Walt, 331
Royalty: See Kings
Rule of law: See International law
Ruritania, humanitarian intervention in, 228-229
Rushdie, Salman, assassination order placed on, 127
Russia: See Soviet Union

s

Sadat, assassination of, 327
Saint... See St.
Salamanca School, Francisco de Vitoria, 150, 171-172, 175-176
Salman Rushdie, assassination order placed on, 127
Sanctions or boycotts
Gulf War, allowing additional time for sanctions prior to resort to, 212-213
Libya, Article 41 sanctions against, 285,
military force preferable to, 165, 298
Sanctuary for aggressor force, innocent nation acting as, 72~74
Schools: See Educational institutions
Schools of Paris and Salamanca, concept of justice developed in, 174~176
Scorched earth policy applied to drug trade, 199
Seas and oceans: See High seas
Secret intelligence support as classification of covert activities, 327
Secret operations or activities
clandestine operations: See Clandestine operations
‘Constitutional convention of 1787, 327-328
covert operations: See Covert activities
nature of low-intensity engagement, 289
Security Council of UN
evidence of aggression, presentation of, 38
farure auditing finction over nuclear weapons, 299


Panel Discussion 121

operations relative to countries like Britain, France, and Germany, this final point
needs to be contemplated a bit agnostically.

So while I feel that we have tended in the past decade to exaggerate the
low-intensity conflict threat to our interests, and feel as well that on occasion the
threat has been invoked to discourage the contemplation of strategies for dealing
with difficult States and para-States that combine threats with positive incentives,
I join Bob in believing that the topic merits continuing concern and that the
U.S. Government needs a strategy which incorporates relevant moral and legal
standards.

Iam also prepared to concede that cases could conceivably arise where it may
be difficult to reconcile the national interest in achieving immediate and decisive
results with widely shared normative expectations. I hope Bob shares my view
that such cases will be extremely uncommon, only in part because when we do
act in ways we would not want others to act and hence cannot justify legally,
we, as a satisfied, trading State with a powerful interest in an orderly and
predictable world, pay a medium and long-term price that needs to be weighed
against predicted, yet invariably speculative, short-term gains.

Under what circumstances is the collision between what some virile Presidential
adviser will think it would be immediately usefil to do and what States are legally
entitled to do most likely to occur? I venture it will be in cases where low-intensity
conflict tactics offer a low-cost means of aborting a potential monster problem only
if they are employed, as it were, in the first trimester rather than the last. For in such
an instance, low-intensity conflict will collide with the principle of necessity which
tends to make force precisely the instrument of last recourse.

Every legal system presumably has its euthanasia exception. It is the exception
too dangerous to legitimate because it is too susceptible to abuse. So we pretend,
for example, that there is no exception to the prohibition of killing, except in
self-defense against an apparently deadly attack. But occasionally juries will not
convict that horribly battered and terrified wife who kills her battering husband
at a time when he is resting from his chronic brutalities. By not writing in the
exception, we place a heavy burden of justification on anyone contemplating
decisive preventive measures,

PROF. REISMAN: The program laid out by the organizers indicates that I'm
to make a few comments, which I’m happy to do, and then I propose to open
the floor to discussion and to close it a few minutes before this session concludes,
to invite Professor Turner and then Professor Farer to make some final com-
ments,

It’s been a very interesting paper and comment. To my surprise, many
fundamental assumptions are shared by the speaker and the commentator. I think
they both view law as a body of rules that you apply in response to emerging
circumstances. You look at a situation, you find out if it is in violation of the


Moore 39

V. Conclusion

Secret aggression in the low- and mid-intensity conflict spectrum is one of
the most serious world order threats of our age. Because of a drumbeat of
propaganda concerning political objectives of the attack, coupled with obscure
public perceptions of the origins of the attack, and a pervasive mirror-imaging
of aggression simply as a “dispute” requiring third-party resolution, the interna-
tional system tends to ignore the aggressive attack while condemning the more
visible defensive response. If, however, we are to discourage the low-intensity
portion of the aggressive attack spectrum, then, as with overt aggression, it is
essential that we understand the need for effective defense and deterrence against
such attack. The international legal system can contribute to such deterrence in
a substantial manner if, but only if, we make a strong distinction between the
treatment of aggression and defense, whether overt or covert. That is, we must
strengthen the international legal system to strongly condemn aggressive attack,
whether such an attack is in the form of low-intensity terrorism, or hostage-
taking, or armies on the march. Just as importantly, the system must be
strengthened to strongly support the defensive response against such aggression,
whether such a response is overt or covert.

Notes

John Norton Moore is the Walter L. Brown Professor of Law and Director of the Center for National Security
Law at the University of Virginia School of Law.

1, Arecent example of the tendency ofsome international legal scholars to ascribe war to the unavailability
of dispute settlement machinery is contained in an article on the World Court by Professor Robert E. Lutz Il.
Professor Lutz writes, in the immediate aftermath of the Gulf conflict, with the best of intentions and within
the prevailing myth system of our profession:

Despite the commitment of nations to “settle their disputes by peacefill means,” the drastic and
ultimate dispute-settlement method of war has been used once again to resolve an international
dispute—this time in the Middle East. One might hope that the hell of war, and the destruction it
inflicts upon innocent populations and humanity generally, would have climinated it as a viable
instrument for resolving international disputes at this advanced stage of world history. Yet even with
mankind’s vast experience with war's horrors and waste, the world community has been unable to
channel all international disputes into peaceful resolution processes. Because of the concept of
sovereignty and the role that States play in the international system, States may give or withhold their
consent to the jurisdiction of third-party dispute-settlement regimes or the submission of their interstate
conflicts to the variety of intermediary dispute-settlement procedures. Thus, when a State resists in
giving its consent, a dispute may either with time go away, fester and possibly escalate, or become the
subject and justification for the use of coercive measures by the complainant-State, which, in many
cases, would be considered violations of international law.

Lutz, Perspectives on the World Court, the United States, and Intemational Dispute Resolution in a Changing World,
Int'l Law. 657, 675-76 (Fall 1991) (footmotes omitted). Apparently Professor Lutz is unaware that Kuwait had
offered to submit any border issues to the Intemational Court of Justice. Moreover, many other third party
dispute settlement techniques were available to Iraq, including conciliation or mediation by regional Arab
leaders. The Gulf conflict did not arise from an absence of available third party dispute settlement machinery.
Nor did it even arise from any reasonably perceived “dispute.”




Index

destabilization as tool for maintaining, 166, 319-320
enforcement operations: See Low intensity conflict
menacing peace and order, prohibition under Article 7, 57
“Peace of God” movement, 158, 215
“sight authority” concept of, 158
“Peace of God” movement, 158, 215
Peace of Westphalia, 10
Peremptory norms (jus cogens) of international law, 58-60
equity defense, 51-52
Pericles, classical view of statesmanship, 339-342
Permission: See Consent or permission
Persian Gulf War: See Gulf War
Personal-level deterrence, 37-38, 128
Pern
drugs and drug trafficking
(just war theory applied to, 199-200, 232
“Shining Path” (Sendero Luminoso), 144, 199, 232
questions of legitimacy of government, 134, 136
Philip II of Spain, 9-10
Philippines, US role in overthrow of government of, 326-327
Philosophical roots of just war tradition, 147-151, 158, 171-172, 215
Piracy, intervention on high seas, 79
Plato
cave metaphor, application of, 131, 134, 247
communitarianism: See Communitarian realism.
Platt Amendment, effect of Cuban acceptance of, 117
PLO (Palestinian Liberation Organization)
Abu Kihad, Israeli assassination of, 195-196, 231
“deceptive peasant,” fear of, 166-167
Pluralistic nature of democratic institutions, effect of, 12-13
Poison as means mala in se (evil in itself), 164-165
Police: See Criminal acts and law enforcement
Policy-making and policy language
covert actions as statecraft, 325-350
engaging totalitarian regimes with rule of law and democracy, 36-37
institutionalized process of policy-making, need for, 278, 310
just war tradition in policy debate, 154-162, 236, 313
legal and moral reasoning involved in, 246, 309
national security interest as moral standard in policy-making decisions, 279
Politics and political matters
conflict, political nature of, xv
covert activities
ban of due to violation of American political values, 329-330
political action, covert activities in form of, 326
political embarrassment, avoiding, 332-334
culture
low-intensity conflict, US political and cultural constraints on, 249-322
politics as product of, 209
democratic governments: See Democracies and democratic ideals
leadership ability following end of cold war, 253-256
morality and politics, pairing of, 252, 288
strategic and political advantage of systems of, 317
strategic culture (US) in small wars, 265-271
strategy of political/psychological warfare as, 52-53
Pollution of environment caused by Gulf War, 34-35
Popular support: See Public support
Post-cold war era: See Cold War
Potential war criminals, deterrent effect of kidnapping, 102

379


158 Legal & Moral Constraints on Low-Intensity Conflict

Across National Borders. The idea of sovereignty is treated in classic just war
language through the concept of “right authority.” Its original purpose was to
discourage the spread of lawlessness in medieval society by proscribing the use
of force for private purposes. The need to control the many depredations
practiced by the strong against the weak had become so acute by the tenth century
that it gave rise to the “peace of God” movement, an effort by ecclesiastical
authorities to arrest the growth of anarchic violence. The canonists who
continued the work of the movement through the fourteenth century succeeded
in defining a conception of “right authority” which allowed only those civil
authorities with no formal superior to authorize the use of force. This was
consonant with prevailing medieval political theory, in which right politics aimed
at establishing three goods: order, justice, and peace. Order was conceived as first
among these, for without order there would te chaos; without order, just
relationships among the members of the political community could not be
ensured; and without both order and justice there could be no true peace, for
peace meant far more than an absence of violence. This final goal of a good
politics envisioned a community in which justice and orderly relations would
prevail among men. The use of force for private ends was therefore seen as an
attack on the society as a whole. Only the need to preserve order, justice and
peace could legitimize force, and only those who had been recognized by society
as legitimate authorities could order its use. Thus the just war term “right
authority,” which goes back to the Romans, translates into the modern concept
of sovereignty, though it is broader than the specific legal definition of
sovereignty found in positive international law.

Many changes have transpired since the medieval coalescence of the idea of
right authority, but the fundamental idea still stands. Nor is this moral criterion
for the just use of force tied to any particular concept of sovereignty. Good
political communities may take a variety of forms, but they are alike in promoting
order, justice and peace.

The application of the authority to employ force is not limited to war proper.
This is shown by its medieval beginnings as the authorization for police actions
against all forms of lawlessness. We can see this also in the classical grounds for
just cause: defense against an unjust attack in progress or preparation, retaking of
something wrongly taken and the punishment of wrongdoing. These criteria for
just cause do not presuppose that the perpetrator of evil is another sovereign
entity. Rather, when (following a favorite proof-text of classical just war theorists,
Romans 13:4) the sovereign is given the right to use force, it is to act on behalf
of God to punish evildoers. The limits on the sovereign’s action are those of
practical politics and the extent of his abilities. If another sovereign allows safe
haven to cross-border raiders, or is too weak to do anything about them, then
just war tradition has historically given those who have been wronged the
authority to retaliate.


182 Legal & Moral Constraints on Low-Intensity Conflict

service academies and at the highest levels of military education in the service
colleges.>

“The emerging functions of just war doctrine as treated in theory and practice
within the United States government and the armed forces are:

(1) to provide a framework for moral analysis of security issues;

(2) to complement the positive international law of war as it is applied in
security-decision processes as a source of policy guidelines; and

(3) to complement positive international law in official statements justify-
ing USS. policies and conduct to the American people and the world.

Just War Doctrine as a Complement to
International War-Decision Law (Jus Ad Bellum)

Contemporary international war-decision law is based on two overlapping
bodies of law. The first is the law with regard to recourse to armed force as set
forth in the United Nations Charter and interpreted and applied by belligerents.
The second is the law emanating from the principle of non-intervention.

UN war-decision law is based on Article 2 (4) which prohibits “the threat or
use of force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the Purposes of the United Nations.”
UN war-decision law then provides for two forms of legally permissible recourse
to armed force:

(1) enforcement actions ordered by the Security Council in virtue of
Article 42 against a State found by the Council to have caused “a threat to
the peace, or act of aggression” as provided in Article 39 (including
enforcement actions ordered by the Security Council which utilize regional
organizations as provided in Article 53); and

(2) individual and collective self-defense, pending Security Council action,
as provided under Article 51.*

These war-decision provisions have been subject to considerable interpreta-
tion. Roughly, these interpretations can be divided between strict, literal versions
and more permissive “reasonable” versions. The debate among publicists and
among advocates and critics of U.S. and other war policies has centered on
individual and collective self-defense as recognized in Article 51. This has been
the case since, until Desert Storm, there never was an Article 42 Security Council
enforcement action. Absent any enforcement actions, UN war-decision law was
limited to some form of individual or collective self-defense.

Strict interpretations of self-defense required that “an armed attack occur.”
Such interpretations denied any form of preemptive attack even if aggression was


Commentary
on
William V. O’Brien’s
“Just War Doctrine’s Complementary Role
in the International Law of War”

by
William G. Eckhardt*

hen I first read Professor O’Brien’s work over ten years ago, I immedi-
ately noted an unusual blending of “just war” and “law.” Not only were
these two disciplines commingled, but Professor O’Brien used unique language
of his own creation to continually remind the reader of their strange cohabitation.

In March of 1983 in a symposium on “The Role of Special Operations in US
Strategy for the 1980s,” Professor O’Brien delivered a paper entitled, “Special
Operations in the 1980s: American Moral, Legal, Political, and Cultural Con-
straints.”! For many years, Army War College students in their formal critiques
have indicated that this paper is the most important article that they read while
at the Army War College. Its thesis adds practicality to an appropriate integration.
of “just war theory” and “law.”

The thesis of this 1983 paper is central to our discussion. Professor O’Brien
stressed the linkage between political and cultural constraints and moral and legal
terminology when he argued: “. . . it is clear that in a free society such as the
United States, legal and moral issues, both real and spurious, are central to the
successful conduct of war.” After discussing in the most practical of terms such
matters as the nature of supported regimes, intervention, and war conduct, he
went on to conclude: “The best rule simply stated: observe the highest practicable
standard of just war and international law irrespective of the legal status of
participants in or victims of the conflict. That is good morality and law, good
policy and public relations.”>

Army War College students restate and build upon these themes. To them,
the Vietnam War demonstrated that the Clausewitzian center of gravity for a
democracy is sustaining political support for the difficult decision to use force.
‘When the government communicates with its people regarding the use of force,
it necessarily does so in moral and legal language.’ Such language and concepts
come to us from an ancient just war tradition and from a respect for the wisdom
of the rule of law. Not only do military officers in a democratic polity need to


Chapter VI

Just War Tradition
and Low-Intensity Conflict

by
James Turner Johnson*

Introduction

ome readers of this paper may know a great deal about the just war tradition,

while others may be less familiar with it. Part I provides an orientation for
the latter and, for both sorts of readers, locates my own normative position within
just war thought. Working from this base, Part II applies just war tradition to
low-intensity conflict,

The just war idea takes many forms in contemporary moral debate, and one
must be careful to recognize their variety. After illustrating this diversity with a
brief overview of some of the principal contributors to the recent tradition, the
paper will go on to discuss their work in greater detail.

For the late Protestant theologian Paul Ramsey, a preeminent figure in the
recent debate, just war had to do principally with conduct in war. He understood
it to be a moral concept rooted firmly in the Christian ideal of love for one’s
neighbor and focused on the principle of discrimination. In contrast, Fr. J. Bryan
Hehir and the U.S. Roman Catholic bishops view just war as a doctrine of the
Catholic faith, rooted in natural law but passed down and developed through
theological debate, William V. O’Brien also acknowledges Catholic theological
tradition and natural law as sources of the idea of just war, but he accords
authoritative status to its formulation by St. Thomas Aquinas and subsequent
development in the modern period through international law as well as moral
doctrine. For James F. Childress, on the other hand, just war thought is not
particularly Christian in nature; it is a set of prima facie ethical duties derived
from philosophizing about when the use of violence can be morally justified. A
very different philosophical conception of just war is offered by Michael
Walzer, for whom it is a body of moral wisdom accumulated from reflection
on the struggle against evil throughout history. We might add others to this
list, including the “just-war pacifists,” persons who typically choose one or
another just war criterion (e.g., proportionality or last resort), argue that it


56 Legal & Moral Constraints on Low-Intensity Conflict

and development of International Law and organisation. The very notion of
International Law as a body of rules of conduct binding upon States irrespective
of their Municipal Law and legislation, implies the idea of their subjection to
International Law and makes it impossible to accept their claim to absolute
sovereignty in the international sphere. Their mutual independence is indeed a
fundamental rule of International Law; but it is only by reference to a higher legal
order that the mutual independence of States, viewed as a rule of law, is
conceivable. On the other hand, owing to the weakness of International Law, its
supremacy over the States composing the international community is limited to
the duty which it imposes upon them to observe and, within a restricted sphere,
to submit to the enforcement of the existing rules created by custom or treaty or
flowing from the very existence of the society of States. It does not as yet include
a competence on the part of the international community to impose fresh
obligations upon an unwilling State. ... These aspects of sovereignty have been
the principal cause of the criticism levelled against it in the two decades after the
First World War. Itis being increasingly realised that progress in International Law,
the maintenance of international peace and, with it, of independent national States,
are in the long run conditioned by a partial surrender of their sovereignty so as to
render possible, within a limited sphere, the process of international legislation
and, within a necessarily unlimited sphere, the securing of the rule of law as
ascertained by international tribunals endowed with obligatory jurisdiction.

The basic dilemma of trying to regulate sovereign States by international law
‘was captured well by Brierly, who observed: “[I]f sovereignty means absolute
power, and if States are sovereign in that sense, they cannot at the same time be
subject to law . . . [and] there is no escape from the conclusion that international
law is nothing but a delusion.” It was because states recognized the utility of
tules of international law that they consented to surrender aspects of the
traditional sovereignty doctrine.

Modern Restrictions on Sovereignty

The United Nations Charter has been ratified by 175 States and the obligations
it imposes are totally inconsistent with the early doctrine of absolute sovereignty.
Professor Charles G. Fenwick, who directed the Department of Legal Affairs of
the Pan American Union for fourteen years prior to 1962, has written:

Ic is obvious that the term “sovereignty” has now lost the meaning attributed to
it at the beginning of the twentieth century. States may still be described as
“sovereign States,” but their sovereignty is sovereignty under the law to which
they have bound themselves by the Charter; or better, perhaps, it is sovereignty
in the fields of national or domestic jurisdiction that lie outside the newer areas
controlled by international law. . . . The term may continue to be used, but it must
be understood in a manner consistent with the maintenance of law and order in
the international community. States have now abandoned their former right to be
the judges in their own cause and the right to take the law into their own hands;
they have now recognized the higher right of the international community, acting



Coll 11

borrowed notions about the brotherhood of man, the desirability of universal
peace and reconciliation, the high value of forgiveness and compassion, and the
undesirability of deception as an instrument of politics.'!

From the broad philosophical universe of liberalism modern democracies have
imbibed a view of history as progressive and tending towards greater rationality
and harmony. Man and society are seen as capable of undergoing substantial
moral improvement. The liberal tradition tends to view war as a retrograde
human aberration, an unfortunate holdover from less enlightened days which
the enlargement of human understanding gradually will render into oblivion.’
The intellectual heirs of Sun Tzu and Machiavelli believe that war is a rational
instrument of politics, no different from diplomacy or other “peaceful means”
in its essential character as a means for the acquisition of power, and whose
appropriateness at a particular moment is determined solely by expediency rather
than morality. Liberalism, on the other hand, tends to see war as the Christian.
tradition has done: as a last resort, a basically evil alternative justified only by the
necessity of defense against the even greater evil of aggression and conquest. For
liberals, war is an abnormal state that periodically punctuates the more natural
condition of human peace and harmony.

From its basically optimistic and progressive temperament, liberalism derives
the strong hope that modern man will come to see the senselessness and waste
of violence and will learn to avoid it. The invention of weapons of mass
destruction has only reinforced the earnestness underlying this widely shared
liberal hope. The irrationality of nuclear war, the danger of conventional conflict
crossing the nuclear threshold, and the exorbitant costliness of conventional
conflict itself, suggest to many liberals that since nations need to develop peaceful
international mechanisms for settling their differences, they actually will do so.

Capitalism has been another powerful contributor to the general disdain with
which liberal democracies tend to view war. In spite of its detractors’ arguments,
capitalism during the twentieth century has been found more often on the side
of those forces supporting diplomatic accommodation and peaceful resolution of
conflicts than on the side urging war.'? This was true of the highest business and
financial circles of Great Britain and the United States prior to the outbreak of
‘World War I and during the 1930s."* It continues to be true today with regards
to the world’s large multinational corporations. By the end of the nineteenth
century, it was already becoming apparent to some observers that, although a
future general war might provide possibilities for great profit to selected industries
in certain countries, on the whole its destructiveness would deal a heavy blow
to the increasingly sophisticated and fragile network of international trade,
investment and industrial production undergirding the world economy. By 1914,
most capitalists in Great Britain and France, and even many in Germany, shared
this perception and were, therefore, worried about the darkening clouds on the
international political horizon. Their fears did not prove to be unfounded. The


54 Legal & Moral Constraints on Low-intensity Conflict

The concept of absolute sovereignty received strong support with the publi-
cation in 1625 of Hugo Grotius’ classic study, De Jure Belli et Pacis, in which the
father of modern international law contended that the sovereignty of each State
was absolute, including complete control of its subjects and complete inde-
pendence from external restraint.>? When the Stuarts replaced the Tudors in
England at the start of the seventeenth century, they brought with them the claim _
of Divine Right of Kings. By this theory, parliaments existed only as a matter of
royal grace; and while the king did have a duty to be just in dealing with his
subjects, this duty was owed to God and not to the subjects themselves,

The Revolution of 1688 affirmed the theory that sovereign authority grew
from the assent of the people, a view championed by John Locke in his Two
Treatises on Civil Government. Rejecting the absolute sovereignty of Bodin, Locke
argued that the sovereign was bound by rules of Natural Law and could be
rightfully removed from power by the people if he/she violated these prin-
ciples.**

A contrary view was championed by Hobbes, whose Leviathan argued that all
tights are derived from the sovereign, who owes no duty to his subjects.
According to Hobbes, there can be no legal limitations on sovereign power, and
sovereignty must be vested in a single man and can not be divided.>> John Austin
and Jeremy Bentham were largely influenced by Hobbes on the issue of
sovereignty.”° Austin argued that a society (or State) was composed of a

“sovereign” and his “subjects.” Because Austin, like nearly all authors of the
sixteenth and seventeenth centuries,” 7 believed sovereignty could not be divided,
he held that in a republican form of government it must reside in the legislative
branch. The executive must be subordinate to the legislative, and charged with
implementing the will of the latter.

The establishment of the American system of government, with three,
co-equal, independent branches of the national government and additional
powers reserved to the States (federalism) caused problems for some political
theorists. Some, including many followers of John Austin, reasoned that the
Constitution was the source of political power, and that the people were the
source of the Constitution. Thus, in the United States, sovereign power resided
with the people.>* Others concluded that, contrary to prevailing thinking,
sovereignty could be divided.”? French jurist Adéhar Esmein added another voice
for the theory that “the people” were the ultimate source of sovereign power.?

Professor Charles G. Fenwick writes: “In the technical usage of the past a
sovereign State was one which exercised undivided authority over all persons
and property within its borders and was independent of direct control by any
other power.”*! He notes that historically there were a number of “marks of
sovereignty,” such as the right to send and receive diplomatic agents, the right
to be immune from foreign judicial process, and the right to make war.”” A


130 Legal & Moral Constraints on Low-Intensity Conflict

citizens who reside in the State recognized by international law. This is a
multidimensional definition, but as you can see, it begs the question because it
defines sovereignty in terms of legitimacy. In fact, what Professor Teson is
concerned to argue, is that we ought to substitute for sovereignty a concept of
legitimacy. In other words, we ought not to be so concerned with State
sovereignty, because that protects nasty regimes. We really ought to be concerned
with protecting legitimate governments and legitimate States and undermining
those that are not legitimate. You certainly can’t settle such a controversial
proposition by a definition. I don’t mean to imply that he does, because he also
argues the case, but there really is a problem with the definition of sovereignty.
If you link it too closely to legitimacy, you have no argument. What I would
‘want to say is that the plain meaning of “sovereignty” is “Statehood.” This has
astatus in the international system. It’s defined by international law. It has nothing
to do with moral chains. Sovereignty, I would argue, is absolute in one sense.
It’s not absolute in the old fashioned sense that a State can do anything or that a
leader can do anything. That’s simply a misunderstanding. Sovereignty is what-
ever powers are reserved to the State. They can be duly limited by constitutional
constraints. They can be limited by international law. They change all the time.
The United States is no less sovereign today because it has given its assent to
human rights instruments, than it was before 1945. So the concept of sovereignty
doesn’t change just because there are limits on State power. When I say that
sovereignty is absolute, I mean that it is a premise of the State system. If States
aren’t sovereign, then there’s no State system anymore. There would be a single
global State. If we maintain a system of separate, sovereign States, we can talk
about various kinds of morally justified limitations on State sovereignty that are
real, because they’re incorporated in international law. But State sovereignty will
persist, and I think we have to be very careful about the terms in which we’re
going to violate its norms.

Let me then close by making a few points about the main thrust of Professor
Teson’s argument, which has to do with this notion of legitimacy. I think he
gets himself into needless difficulty by making too much depend on the idea of
legitimacy. I’ve already suggested that I believe his basic principle to be unac-
ceptable. Namely, that a State is internationally legitimate if it is internally
legitimate. That’s another way of saying that sovereign rights can be respected
only if'a State is internally legitimate.

As I’ve indicated, there are other ways of justifying sovereignty. But more
importantly, the notion of legitimacy is a difficult matter. It’s by no means clear
to me, anyway, whether a State or a government is or is not legitimate. The
concept of legitimacy, in other words, is not one that can simply be used in
making moral judgments, much less policy decisions. The problem here, once
again, comes from trying to move too rapidly from a philosophical analysis down
to some kind of direct guidance over conduct. The theoretical extractions that


Turner 47

entered into the legal regime established by the U.N. Charter with a clear
warning that we expected other States to abide by the same set of rules. If our
fundamental national interests are jeopardized because we choose to compete by
the “rules” against adversaries who accept no such constraints, the time may
come when we need to reassess our own adherence to the “rule of law” with
respect to those particular outlaw States.

The first point is an important one. The current regime of international law
is premised upon the “sovereign equality” of all States, irrespective of size or
power. While in fact there are some exceptions to this fundamental doctrine,”
as a general proposition any legal right claimed by the United States must also
be given to Iraq, Iran, Libya, and every other State in the world—perhaps in a
somewhat different or even broader scope than initially envisioned by the United
States.

There is an understandable temptation to resort to “long arm” statutes claiming
extraterritorial jurisdiction to permit serious punishment of foreign drug kingpins
or terrorists, and in some situations this may be warranted. In a related vein, like
many other States, the United States accepts what we call the Ker Frisbie Doctrine,
which permits courts to try properly accused individuals irrespective of the fact
that the defendant has been brought before the court by kidnapping or other
wrongful use of force from another jurisdiction. Thanks to these rules, Mexican
druglord Rene Martin Verdugo-Urquidez has been convicted in a California
court for the torture and murder of U.S. Drug Enforcement Agency agent
Enrique Camarena.!! Most Americans undoubtedly approve of this outcome,
and the fact that Verdugo was apparently seized unlawfully in Mexico by agents
of the U.S. government may seem irrelevant.

But ponder for a moment how the United States would likely view an effort
by Iraq to carry out a “long arm” criminal statute which pronounced a penalty
of death for any individual who took part in the sinful business of producing or
marketing alcoholic beverages if such beverages were smuggled into Iraq in
violation of that nation’s municipal law. Certainly we may feel that narcotics are
a greater threat than alcohol, but subjectively Iraq might reasonably group both
drugs together. (After all, many of the early treaties designed to regulate opium.
smuggling also prohibited commerce in illegal alcoholic beverages). And while
the United States may well have sufficient procedural guarantees to safeguard the
rights of innocent defendants, international law does not require that Iraq adopt
an exclusionary rule or even a trial by jury before a capital sentence may be
executed, Unilateral efforts to deal with international criminal conduct have
inherent risks. The wise policymaker needs to weigh the potential consequences
before embracing creative new unilateral “simple solutions.” While getting
agreement by other States may be difficult, there are clear advantages to taking
a multilateral approach when thatis possible. Indeed, there are benefits to exhausting


316 Legal & Moral Constraints on Low-Intensity Conflict

guidance. There ought to be a powerful presumption, it seems to me, in favor
of adherence to the law for that reason. Not because we think we are adhering
to the law at the expense of interests, but because the law reflects interests
contemplated outside the context of a crisis.

With respect to just war as ideology, I disagree, I think, with Professors
Johnson and O’Brien. I think there’s no way of excluding it from our use of just
war reasoning, the ideology is a world view. The temptation to employ
low-intensity conflict strategies will be very powerful when others depart from
our view of what is a desirable world order. We haven’t focused very much on
that. When Admiral Harlow talked about North/South problems, he suggested
the difficulties that could follow from a conception of order as the maintenance
of the existing distribution of power, prestige and wealth. I would predict that
if we set ourselves up in this fashion as the guarantors of the status quo, we will
become the targets of all of those who want change. This approach would
probably increase the use of terrorism and low-intensity conflict strategies against
us because they are the methods of the weak. We resort to these methods because
the loopholes of the U.N. Charter permit it, as my friend Professor Turner
pointed out. They allow this latitude because the existing distribution of power,
wealth and prestige influence the capacity to generate norms. To what extent
should we identify the minimum of order that we all agree is necessary for our
national interests with the existing international dispensation? And let’s not
exclude the internal affairs of those countries like Saudi Arabia and others where
we have important interests. I haven’t thought this all the way through myself
and I don’t think anyone else has. If we do define the minimum of desirable
order in this very conservative way, we can be sure that we will be targets for
low-intensity conflict strategies by those who want significant change, and that
we will respond to them with low-intensity conflict strategies.

PROF. COLL: That’s a very good point.
Professor Teson.

PROF. TESON: I would like to address the conclusions drawn by Professor
Nardin from Professor Reisman’s remarks. I think the distinction between those
that separate law and morality and those who integrate them is just too simplistic.
It seems to me, as anyone who has interpreted the law knows, that there are
many ways, starting from the language of treaties, that you can factor your
theories of morality into law. The very act of legal interpretation lends itself to
an integrationist position because of the nature of jurisprudential language, quite
apart from any desire to use the law in support of a particular moral position.
The precise meaning of Article 2 of the U.N. Charter, which prohibits the use
of force, has been debated for years. In this expression of the purpose of the
United Nations, there is surely room for interpretation, be it by a court, a legal


4 Legal & Moral Constraints on Low-Intensity Conflict

Unconventional warfare poses serious problems for democratic, open societies
committed to the rule of law in international relations. The covert nature and
elusive instrumentalities of unconventional warfare make it difficult for societies
under attack to identify the source of the threat and to rally domestic and
international opinion to support effective defense and deterrence measures.
Unconventional warfare places its victims in the awkward legal, moral and
political dilemma of choosing an appropriate response. Sectors of the interna-
tional community often misperceive responses of a conventional nature, such as
the 1986 U.S. bombing raid on Libya, as “disproportionate” or aggressive in
themselves. A double standard sometimes prevails, according to which societies
under the attack of unconventional warfare are denied the means to defend
themselves. The traditional rules of international law and the legal framework of
the United Nations Charter, elaborated to deal with outright, open conventional
military aggression, are difficult to apply to the highly creative modes of violence
characteristic of “violent peace” and unconventional warfare.

Unconventional warfare always has been an inextricable component of
international politics, though its salience at a particular time has depended on the
character of the State system within which it takes place. In highly anarchical
and competitive State systems whose members are bound by few or weak legal
and moral ties such as Renaissance Italy, unconventional warfare tends to prevail
more than in stable State systems such as 19th century Europe where there is a
relatively strong consensus on what constitutes legitimate international behavior.
The foundation of unconventional warfare is a particular view of statecraft which.
sees international relations as inevitably competitive, as providing little space for
the long-term accommodation of divergent interests, and as requiring the pursuit
of the most devious political instruments to achieve the greatest possible security
for one’s State. Thus, unconventional warfare, regardless of the military nature
of many of its instruments, is essentially political in its guiding logic and its
character. Its objective is to confuse, weaken, paralyze and undermine an
adversary so as to increase the power and security of one’s State or group. Insofar
as unconventional warfare resorts to military force, it does so in a carefully
calculated fashion and within the context of a broad strategy that includes
diplomatic, economic and psychological instruments. To appreciate the true
significance of unconventional warfare in the late twentieth century requires that
‘we understand some of the deep, ancient intellectual roots of this particular mode
of statecraft. The thought of Kautilya, Sun Tzu, and Machiavelli is especially
relevant.

Kautilya’s Arthashastra.

Chanakya Kautilya (345-300 B.C.?) was chief advisor and close friend to
Chandragupta Maurya, founder of a new empire and dynasty in the heart of


374 = Index

Knowledge: See Intelligence and intelligence-gathering
Korea

Mayaguez incident, 310

proportion requirement of jus in bello, 193

UN membership, effect absence of, 67

Vietnam, distinguished from Korean war, 185
Kurds

Turkish attack on, justifying, 239

US overt aid to Kurdish rebellion in Iraq, 165-166
Kuwait: See Gulf War

L

Lamumba, Patrice, attempted assassination of, 127
Laos, covert activities, 326
“Larger” purpose doctrine used to justify loss of innocents, 104
Last resort criteria
covert activities, 289, 330-332, 347-348
destabilization, 166
Gulf War, 150
sovereignty and use of military force, 159
Law and legal constraints
certainty in law, advantage of, 206, 234,237. -
competent authority discussed in terms of law, 186-189, 280
constraint-oriented viewpoints, 111-112
covert activities, early American law, 327-328, 343-345,
democratic principles: See Democracies and democratic ideals
domestic and international law principles, 278-279, 280-283, 314
enforcement issues: See Criminal acts and law enforcement
extraterritorial jurisdiction: See Long arm statutes
foreign jurisdiction: See Foreign jurisdiction
foreign legal experts, respect for US theories exhibited by, 244
history of America, effect of, 287-288
ICJ: See International Court of Justice
international law: See International law
jurisdiction: See Jurisdiction
just war analysis, distinguished, 238
national security interest, legal options, 296
reciprocity: See Reciprocity principle
secret operations or activities, constitutional law affecting, 327-328
sovereignty, Constitution as source of power, 54
treaties: See Treaties
UN Charter: See Charter of United Nations
Leaders and leadership
See also specific matters
‘Congress: See Congress of US
dictators: See Dictators or tyrannical leaders
just war tradition, levels of application, 154-158
necessity of, 253-256
opinion polls, US government operating in reaction to, 265-266
President: See President of US
protracted conflicts, absence of leadership in, 269
royalty as: See Kings
Lebanon, Israeli attacks on terrorists living in, 231-232
Legal constraints: See Law and legal constraints
Legislative branch: See Congress of US
Legislative intent of UN Charter, 60-62



Coll 21

27, HOUSE COMM. ON INTELLIGENCE, SUBCOMMITTEE ON OVERSIGHT AND EVALUATION,
STAFF REPORT: U.S, INTELLIGENCE PERFORMANCE ON CENTRAL AMERICA: ACHIEVEMENTS AND
SELECTED INSTANCES OF CONCERN, 97th Cong., 2d sess. 3 (22 Sept. 1982), and HOUSE COMM. ON
INTELLIGENCE REPORT 98-122, 2 (13 May 1983).

28, The defectors were, in the order given, Miguel Bolanos Hunter, Jose Luis Llovio Menendez, and Maj.
Florentino Azpillaga. See the interviews with Bolanos Hunter in Washington Post, June 19, 1983 at A4. For
Llovio Menendez, see “Cuban Defector Says Castro Finances Salvadoran Rebels’ Arms Purchases”,
‘Washington Post, November 19, 1984 at A10. Maj. Azpillaga was a high official in the Cuban DGI who
defected to the West in the summer of 1987. From August through November of 1987 Radio Marti (United
States Information Agency) conducted extensive interviews with him, the transcripts of which are available.
‘Much of the evidence of Nicaragua's illegal intervention in El Salvador has been gathered in MOORE, THE
INDIRECT WAR IN CENTRAL AMERICA (1987), and TURNER, NICARAGUA V. UNITED STATES: A
LOOK AT THE FACTS (1987).

29, For 2 thoughtful exploration of the problem of impartiality in international law, see FRANCK, THE
STRUCTURE OF IMPARTIALITY (1968).


Panel Discussion 141

of the international system, strong actors have the capacity to make changes in
law by their behavior. In the post-war period, the United States made a fair
amount of international law. Some by itself, some in coordinated behavior with
the Soviet Union, and even now, the United States has extraordinary power. A
Canadian legal advisor once remarked that in international politics, one hundred
minus two sometimes equals zero. There is a blocking capacity and a lawmaking
capacity that is associated with this very great power. That means, I think, that
there are very special moral responsibilities and here we intersect with Fernando’s
point. The responsibilities are borne by U.S. officials who have to determine
what is appropriate behavior in some circumstances. It’s not simply what is right.
‘We're not simply applying law, we're also in the process of making law. While
this should proceed with a full sensitivity to the problems of unilateral lawmaking
and concern for the genuine interests of others—the international court has talked
about this—I still think that it imposes great responsibility.

In regard to the Nicaragua case, I think it quite clear that the Court is simply
one of many voices as to what international law is on this matter. It’s not the
final voice. Even if the Court’s jurisdiction were properly founded, which is the
contingency in which it may issue authoritative statements, it’s not the final
statement. So the conclusion as to what law is at a particular moment will involve
an ongoing examination of many communications from the context.

One other point. I’m not a moral philosopher, but I would like to respond
to Judge Sofaer’s observation. I don’t think that Teson’s being unreasonable. His
followup comment was that he believes that wholly aside from what the law is,
he has an independent moral responsibility to determine what’s right and to
recommend to others to do it, and perhaps to do it himself. And so this is, as it
were, a criterion for appraisal or evaluation of contemporary law and a guideline
for future behavior.

COL SMITH: Ron Smith.

We have dwelt at length on traditional nation-State relationships. I think we
need to consider the recent development of extra-national criminal organizations
that engage in drug trafficking and terrorism. There’s one view, of course, that
holds the sovereignty of the nation-State to be inviolable. But perhaps we should
be looking at sovereignty with different criteria to address this new problem,
particularly where the nation-State involved is either purposely harboring the
activity, or is unable to do anything about it.

PROF. NARDIN: I think you can predict my answer to this question. We
obviously have a grave global public policy problem and we’re here to talk about
solutions to it. I don’t understand why one moves quickly from the identification
ofa problem to trying to solve it though the use of force, not to mention covert
action. These are measures that might be in violation of not only international


228 Legal & Moral Constraints on Low-Intensity Conflict

But I do think that international law would benefit from what I’m calling the
complementary application of just war doctrine.

Now, in attempting this complementary application I assumed that the United
States role in using armed coercion could take two forms. It might be some kind
of collective self-defense, with the exception, perhaps, of the complicated debate
about the international drug traffic where you could also argue that we would
be acting in immediate self-defense. Alternatively, our role might involve some
kind of what I would call reasonable intervention. Justifying that role requires
that we find some criteria for determining reasonableness. I’ll just go quickly then
to the just war doctrine categories and comment on their relevance in determin-
ing what is acceptable collective self-defense and what is acceptable reasonable
intervention.

First of all, there is the problem of competent authority within the United
States. I won’t go through the whole debate about the Executive versus Congress
and the War Powers Act and all the rest of it. You’re familiar with that, but it’s
a continuing issue. There is also the question of the competent authority of
regimes that we may be helping in cases of counterinsurgency. I think that
problem would take a lot more time than I have this afternoon, because it is very
unusual to have to give counterinsurgency interventionary assistance to States
like Denmark. Most of the States that you’re going to intervene in are a mess,
and have been that way for a long time. The addition of an insurgency to their
enduring problems means that to expect them to get high marks from Amnesty
International and Freedom House is perhaps unrealistic. Was the regime in
Saigon competent enough? Well, these are judgment calls and I just flag that as
an issue.

Secondly, we need to examine what the substance of a just cause might be.
Let’s look at what just causes are out there. I think self-defense, individual and
collective, is clearly one, but then you’d have to decide what that means. We’ve
had some references to humanitarian intervention in our discussion today, and
I’m a pessimist about it because of what some of the best minds, like Michael
Reisman, and his predecessor Myres McDougal have written about it. This is
the one point I was so excited about that I decided I’d tum out an article too,
but then I discovered a nasty fact. I couldn’t find any examples of it. You all were
talking about whether or not we should intervene to help somebody who's a
victim of oppression, but nobody wants to go and help the victims of oppression.
There was no intervention in Uganda until finally its neighbors were fed up with
the mess and went in for their own reasons. Walzer wants us to believe that Mr.
Ghandi liberated Bangladesh because of the goodness of his soul and his desire
to help the people in Bangladesh. I don’t believe that for a minute. I think it was
Indian power politics. But you see, you’ve got to picture a national leader saying,
‘we're going into Ruritania. Now, we don’t have any real interest in Ruritania,
but we're going to go in there and save the Ruritanians from their own


Moore 41

Recent history has shown how much ideas count. The Cold War wat, in its decisive aspect, a war
ofideas, But ideas count only when knowledge spreads. In today’s evolving political environment, and
in the face of the global explosion of information, we must make clear to our friends and potential
adversaries what we stand for.

‘The need for international understanding among different peoples, cultures, religions and forms of
government will only grow. In a world without the clear-cut East-West divisions of the past, the flow
of ideas and information will take on larger significance as once-isolated countries seek theirway toward
the international mainstream. Indeed, information access has already achieved global proportions. A
truly global community is being formed, vindicating our democratic values.

‘Through broadcasts, academic and cultural exchanges, press briefings, publications, speakers and
conferences, we engage those abroad in a dialogue about who and what we are, to inform foreign
audiences about our policies, democratic traditions, pluralistic society and rich academic and cultural
diversity. We will increase our efforts to clarify what America has to contribute to the solution of global
problems, and to drive home democracy’s place in this process. Id.


Panel Discussion 227

doctrine gives us an analytic format for making judgements about proportionality
and reasonableness that can be very useful.

Finally, on the state of war decision law, I would like to repeat an observation
that has occurred in a number of journals and books over the last few years,
including Alberto Coll’s article some years ago in the Harvard Journal of Interna-
tional Law. There are many assumptions underlying the uncompromising purity
of war decision law in the United Nations Charter. One is that specific settlement
of disputes, with so-called better peace machinery, will be much easier and
disputants won’t need to go to war. Well, if you look around the world, you’d
see a lot of intractable conflicts that are not amenable in the near term, to specific
settlement.

Secondly, of course, was the assumption that there would be a collective
security capability that would greatly remove the need for self-defense. With the
rare exception of the recent Gulf action, that hasn’t developed at all.

Thirdly, I read into the Charter a priority for war avoidance over everything
else, which is very understandable thinking in terms of 1945. But I think you
see around the world an awful lot of people for whom: war avoidance is not the
highest priority. Justice is the highest priority. And justice is defined in terms of
whatever ideological or ethnic agenda is at stake. So, there are a lot of people
out there who are willing to employ armed coercion in some form or another.

And finally, I want to agree with the point made in the last discussion, that
quite naturally, the model for war we have in the United Nations Charter is
mainly international conventional war. To answer Sam Sarkesian’s question, I
don’t think that the understanding of the Charter provisions originally had
anything much to do with the kind of sub-conventional warfare which is
apparently the main problem we have in the present situation.

Now, there’s a second component though, to the war decision law. In addition
to the law with respect to recourse to armed force, there’s a law having to do
with intervention. We have been around the circle several times and I’m not
going to belabor it too much. I would just say that the principle of noninterven-
tion is universally acclaimed and universally violated. Everybody, but everybody,
believes in just intervention, my just intervention. Yours is bad intervention, but
mine is good, whether it be pro-democractic, pro-communist, pro-Islamic,
pro-this or pro-that. So you have quite a tension it seems to me, between this
ironclad principle of non-intervention and once again, the practice and expec-
tation not only of States but of the various other non-State political actors.

In these circumstances then, I think that the war decision component of
international law badly needs some kind of reinforcement or supplement in the
form of analysis of reasonable interpretations and I think just war can provide
that help. Now, I realize that I was subjected to a preemptive first strike this
morning by Terry Nardin, who would probably have canceled the whole
afternoon on the grounds that this is undercutting respect for international law.


Coll 7

fraught with innumerable dangers, not the least of which was the possibility that
by the end of the war the enemy State might be so utterly destroyed and the
victorious party so exhausted as to call into question the meaning of the entire
effort. Hence, for Sun Tzu, the “unconventional approach to warfare”, a vital
dimension of which was the kinds of activities that today we would call
“unconventional warfare”, was indispensable. The truly intelligent statesman,
argued Sun Tzu, sought to take his adversary’s armies and cities intact following
a prolonged period of psychological and moral softening up:

Generally in war the best policy is to take a state intact; to ruin it is inferior to
this. .. Do not put a premium on killing. . . To capture the enemy’s army is better
than to destroy it, . . For to win one hundred victories in one hundred battles is
not the acme of skill. To subdue an enemy without fighting is the acme of skill. . .

The supreme excellence in war is to attack the enemy’s plans. . . Next best is
to disrupt his alliances. .. The next best is to attack his army. . . The worst policy
is to attack cities. .5

The softening up prior to ultimate victory was to take several forms. The
enemy was to be deceived as to one’s true intentions, long-term strategic
objectives, and actual strength. Sun Tzu ranked the ability to deceive as the
greatest of political virtues. The tools of deception were diplomacy, espionage,
and the use of “disinformation” and “active measures” to confuse the adversary,
sow self-doubt and divisions within him and alienate him from his allies. It was
essential to attack the enemy’s “mind”, his confidence and sense of identity.

Psychological warfare should not refrain from employing the more violent
instruments of unconventional warfare. A dissatisfied minority or faction within
the enemy State might be encouraged to revolt. An unusually successful enemy
general or political leader might be assassinated.

In the kind of adversarial strategy that Sun Tzu saw as proper to most States
in an anarchical international system, victory was facilitated by an understanding
of “how to use both large and small forces.” Sun Tzu’s counsels on this point,
as with most others throughout his treatise, apply not only at the tactical military
level, but also at the much higher level of strategy and policy. “There are
circumstances in war when many cannot attack few, and others when the weak
can master the strong. One able to manipulate such circumstances will be
victorious.”® Victory required an understanding of the different modes of
warfare. In some situations, the use of conventional war (“large forces”) might
be appropriate, while in others the whole spectrum of unconventional warfare,
from special forces and unconventional warfare to guerrilla war, subversion,
propaganda, and psychological and political warfare (“‘small forces”) was the most
fitting policy instrument.

While The Art of War’s premium on unconventional warfare and deception
grates liberal sensibilities, there are those who have seen Sun Tzu’s doctrine of


128 Legal & Moral Constraints on Low-intensity Conflict

PROF. TURNER: There are a number of issues we didn’t discuss like the
problem of anticipatory self-defense. For years, there was strong argument that
you ought not to allow anticipatory self-defense because it could be used for
aggression. In an era of weapons of mass destruction, where you know your
neighbor may be getting ready to dump bacteriological contaminants into your
water supply, I think we have to recognize that States have to be able to defend
themselves before they suffer a million casualties. How you draw that line is very
hard, I’ve talked a little bit about the pros and cons. I don’t have an answer to
it.

I’ve thrown out a couple of radical ideas like telling the nondemocratic States,
‘we won’t commit aggression against you, but we’re not going to give you all the
benefits of membership in the world community, until you allow your people
to vote and choose their own government. It’s an idea that I’ve been playing
around with for a good ten years. I think it looks more attractive today than it
did then. I’m not sure it’s the right answer.

On the idea of targeting radical elites if they commit aggression, I’m not at all
sure I’m right on that. I am sure that it’s in our interest to rethink some of our
traditional views. We have now made aggressive war a crime, but we don’t really
deal with it as a crime. We didn’t even hold Saddam Hussein accountable for
the aggressive war against Kuwait. If there was any time when there should have
been a war crimes trial, this was it. I’m not sure that Nuremberg survives as
customary law given the way the world community has acted, although the
Europeans unanimously called for trials. The House and Senate in this country
did. There are problems. That troubles me because I think despite the ex post

facto problems with Nuremberg, the principles enunciated there were very
positive ones and treating aggressive war as a crime is, I think, one way of
deterring it. But if we respond to the aggression by slaughtering a bunch of
conscriptees and starving a bunch of women and kids, we’re not going to deter
it, so I would hope that some of you will give this issue some thought. I’m not
at all sure I have the answer to it, but I am convinced we need to think it through
further than we have, and I throw this out as one way to approach it,

PROF. REISMAN: Thesecond session this morning will begin with a presen-
tation of the paper by Professor Fernando Teson, followed by comments by
Professor Terry Nardin. [Professor Teson presented his paper, “Low-Intensity
Conflict and State Sovereignty: A Philosophical Analysis.”]

PROF. REISMAN: Thank you very much, Professor Teson, for that very
systematic presentation of this issue from the perspective of moral theory.

To comment on Professor Teson’s paper, I call on Professor Nardin.

PROF. NARDIN: Thank you.


74 Legal & Moral Constraints on Low-Intensity Conflict

organisations receiving from it financial or other assistance or closely associated
with it by virtue of the constitution of the State concerned, amount to a breach
of International Law.”

Even Professor Sgrensen seems to acknowledge the right of a State to use force
on the territory of a non-aggressive neighbor under certain narrow circumstances:

Forcible measures can exceptionally be taken on foreign territory when forces of
nature in that territory cause a natural catastrophe in the neighboring State, for
example, floods or fires across the border. Here the affected States can use force
only when the action of the local, authorities proves inadequate and does not
succeed in containing the danger.'*

Consider his reasoning. It is difficult to see why this “defensive” right would
apply when a neighboring State failed to control an “act of God” but would not
apply when it acquiesced in a violation of its territorial integrity by a third State
which engaged in armed aggression against a neighbor. The harm caused by such
armed intruders might even be greater than that posed by a fire, and the host
State’s legal duty to act would seem much clearer.’

Conceptually, one may question why a State has a right to take military action
on the territory of another sovereign State that has not itself acted for the purpose
of harming the first State. Ultimately, the answer probably lies in balancing competing
sovereign interests. In the case of the 1970 intervention in Cambodia, for example,
itis clear that Cambodia had a sovereign right to prohibit foreigners from conducting
military activities in or from bases inside its territory (or in any other way infringing
upon its territorial integrity). But the Republic of Vietnam also had a sovereign right
not to be subjected to armed attacks emanating from Cambodian territory. When
forces from the Democratic Republic of Vietnam and anti-government guerrilla
fighters from the Republic of Vietnam set up bases inside Cambodia, the Phnom
Penh government had both a legal right to require them to leave anda corresponding
legal duty to keep its territory from being used to launch armed attacks against its
neighbor. Whether one regards Cambodia’s failure to preventits territory from being
used as a base for aggression as an act of negligence or as evidence of the reality that
the Phnom Penh government no longer was in actual control of this portion of its
territory," 6 the Government of Cambodia was clearly in breach of its duty to its
neighbor and South Vietnam had a right to use necessary and proportional force to
defend its sovereignty against the ongoing armed attacks.

Anticipatory Self-Defense

One of the most difficult problems facing modern international law is the
extent to which measures of “self-defense” may be taken prior to the actual
commencement of armed aggression by a hostile State. Professor Chen argues:


304 Legal & Moral Constraints on Low-Intensity Conflict

over a period of time; the military instrument, the economic instrument, the
propaganda instrument, or high level diplomacy.

The second meaning, which I think is somewhat more troubling, is the
prudential method which is not within the law, not infta legem, but priter legem,
above the law, and in some cases, contra legem.

In the discussion this morning, the question was posed to Judge Sofaer as to
whether, in some circumstances, the compelling force of certain moral arguments
might lead one to do something against the law, and he responded, “Well, we
find a way to do it within the law.” It struck me that we were, as it were, skirting
a serious problem. The problem is that moral discourse does not simply prohibit,
but in some cases compels, if it has any force. It does not simply tell you to refrain
from doing something. The moral conscience compels with force, greater than
that of Caesar, and what it compels can be against the law. Some aspects of the
discussions about certain types of covert or low-intensity operations under
international law, clearly would come under the second meaning, that of
questionable compliance with the expectations of large parts of the international
community.

A third, more general use, which I detect in the discussions, is as the
justification in the near future for the use of military force by the United States
in peacetime. In this respect, the words “just war” are being used to create a
vehicle for new ideology which will provide a justification quite distinct from
contemporary international law. It is one that will justify or rationalize our
decision from time to time to use relatively low levels of force, minor coercions,
whether for an extended period or in a single operation.

I think this last meaning is a fairly recent one. Three or four years ago, if a
group like this had been convened to discuss low-intensity conflict, it would
inevitably have been composed of men intent on using the concept against us
and our friends. It was viewed essentially as a pathology. And, we bemoan the
fact that the international legal structure, and to some extent the democratic
politics of our own country, have tended to restrain our responses to low-inten-
sity conflict. And, now we're talking about low-intensity conflict in a newly
ideological sense as a justification for proaction on our part. I’m not saying this
critically, and I will discuss in a moment the justifications for this use of
low-intensity conflict, some of which I think are quite cogent. But, I think we
should appreciate that we have three meanings and certainly the most dramati-
cally innovative is this new ideological meaning.

The doctrine of just wars is an extremely productive method of ratiocination
and evaluation of decision options that comes from the natural law tradition. But,
to use it for this new ideological purpose, seems to me to be quite dangerous for
several reasons. The first is that it’s not simply something that corrects the existing
law as I’ve said, but, very often is compulsive. It compels one to do certain things.
It may not be consistent with community standards, or as I will explain in a


Lord 267

Elusive as the notion of strategic culture may seem to be, the phenomena it
tries to capture are real enough, and can prove powerful and persisting in their
effects, At the same time, it is important not to overstate the staying power of
strategic-cultural attitudes and practices. Traumatic events — particularly military
defeat — can reshape a nation’s strategic culture very quickly. Organizational
reform can also have a radical impact in a reasonably brief period of time.
Consider, for example, the apparent impact of the (relatively modest) congres-
sionally-mandated reform of the Organization of the Joint Chiefs of Staffin 1986
on the planning and conduct of America’s military campaigns of the last several
years. One also needs to be careful to avoid a deterministic view of the operation
of strategic culture. Individuals and individual leadership really can play a decisive
role in overcoming cultural patterns in organizations and, indeed, entire nations.
Strong individuals at middle levels of military organizations can have a powerful
influence; on occasion they are able to create identifiable and persisting subcul-
tures (consider, for example, the case of Adm. Hyman Rickover and the nuclear
Navy).

How does strategic culture affect American performance in low-intensity
conflict or small wars? The fundamental problem is obvious and massive. What
distinguishes low-intensity conflict from other forms of conflict is not the scale
of violence as such but the fact that violence is embedded in a political context
that directly shapes and constrains it. As Clausewitz teaches, all war is the
continuation of politics by other means; low-intensity warfare is distinguished
from other warfare by the extent to which politics dictates not merely strategy
but military operations and even tactics. In low-intensity warfare, non-military
instrumentalities of national power may have an equal or even greater role to
play than military forces. What this means in practice is either that military forces
must perform essentially non-military functions, or that special means must be
devised to coordinate and integrate military forces with non-military agencies of
government. Either course is apt to be culturally stressing for any military
establishment, but all the more so for that of the United States. In addition to its
long-standing traditions of military professionalism and civilian control of
military activities, the American military (and national security establishment
generally) tends to view war and peace as sharply delineated activities rather than
as a continuum. The use of force tends to be seen as a last resort, a response to
the failure of politics or diplomacy rather than as an instrument of politics or
diplomacy.

Additionally, the American national security establishment as a whole is not
structured in a way that facilitates coordination between the armed forces and
other agencies of government, and moral-cultural attitudes in the civilian
agencies tend to be more hostile toward the use of force than is the case in many
countries. For a number of reasons relating to its constitutional and political
history, the U.S. government lacks a powerful center, at least during periods of


156 Legal & Moral Constraints on Low-Intensity Conflict

undergird it. By reflecting on the concerns found in just war tradition, private
citizens can make a valuable contribution to the public debate.

My argument has been, then, that just war tradition applies at all the levels of
responsibility in the national use of military force. The remainder of this paper
examines its application to some illustrative cases of contemporary low-intensity
conflict.

Il. Applications of Just War Tradition to Low-Intensity Conflict

A, Issues in the Decision To Use Military Force

1. Translation of the Jus ad Bellum into Policy Language. How should
that part of just war tradition bearing on the decision to employ force be stated
in the language of policy for the arena of low-intensity conflict? The question is
complicated by the diversity of phenomena that are included under the term
“low-intensity conflict” and also by the fact that Congress issues no declaration
of war in such cases and a formal state of war as recognized in international law
may not exist. The national use of military force within the context of low-in-
tensity conflict takes place in the gray area between a state of war and a state of
peace. Within this gray area, Clausewitz’s dictum that the use of military force
is the continuation of politics by other means applies perhaps even more strongly
than in the arena of war proper. Because the policy making process may serve
to determine whether the national use of military force is authorized in the
absence of the sort of public finding represented by a declaration of war, it is
especially important that it be conducted in accordance with just war values.

An example from recent history shows how the just war jus ad bellum can be
given voice in the language of policy. In the mid-1980s Secretary of State George
Shultz and Secretary of Defense Caspar Weinberger became involved in a public
debate over the question of committing United States military force. The specific
problem at issue was that of international terrorism. In response to the difficulty
of fashioning a firm definition of terrorism from which provisions for counter
measures might proceed, Secretaries Shultz and Weinberger issued policy state-
ments on the use of force that reflected the concerns of the jus ad bellum in the
idiom of policy language. The two approaches differed not only in their policy
implications regarding the commitment of US ferces but also in their employ-
ment of just war criteria. Despite their differences, the statements are important
instances of the translation of the tradition into the language of contemporary
policy.” Both policies demonstrate that even when the formal just war criteria
are not explicitly invoked, their concerns are still readily identifiable.

It is instructive to note the differences between these two policy positions in
tone, in their implications for the commitment of military force and even in the
level of argument. Shultz’s position makes greater use of moral abstractions and


28 Legal & Moral Constraints on Low-Intensity Conflict

Il. Low-Intensity Conflict in Context:
Competing Models of Aggression and Deterrence

Each generation has a favorite panacea for peace. From the turn of the century
until World War I, it was the creation of machinery through which third parties
could work to settle disputes between nations. From the aftermath of World War
I until the present, there has been a major interest in creating effective interna-
tional organizations for managing the peace. And from the mid-1960s until the
recent revolution in the Soviet Union and its subsequent disintegration, the
principal focus of efforts to bring peace in our time have focused on nuclear arms
control. Although all of these traditional techniques for war avoidance have an
important role to play, third-party dispute settlement and arms control, at least
as panaceas, seem to be rooted in the belief that wars originate in disputes between
nations, accidents, or spiraling arms races. The inadequacy of this etiology of
conflict has led us to underestimate the serious theoretical and real-world
difficulties in building effective international organizations to manage the peace.

Within this intellectual tradition, the role of the international lawyer has been
seen as one of seeking to reduce the lawful uses of force, thus progressively
constraining the defensive response and increasingly treating both the aggressive
attack and the defensive response as equivalent offenses against rational oppor-
tunities for diplomacy and third-party legal settlement.’ This mind-set is prin-
cipally responsible for a majority opinion in the Nicaragua case before the
International Court of Justice that ignores the evidence of the “secret” or
low-intensity Sandinista attack against El Salvador and the apparent perjury of
Nicaragua’s agent before the Court about Nicaragua’s involvement in this attack.
It reaches out instead to condemn the lesser United States assistance to the
Contras, which was provided in response to Nicaragua’s program of covert
subversion.

There is today, however, a powerful body of evidence that the principal
international wars of the Twentieth Century — World Wars I and II, the Korean
‘War, the Indo-China War, the Falklands War, the Iran-Iraq War, the war in
Afghanistan, the conflict in Central America, and the recent Gulf conflict, among
others — did not arise principally because of unresolved disputes (although they
were a factor), accidents, or “arms races,” but rather because of a synergy between
two critical and necessary sets of conditions. The first set of conditions involves
a typically totalitarian or, at least, non-democratic regime bent on the use of
aggressive force to alter the contemporary political or territorial dispensation in
fundamental violation of the United Nations Charter. The second set of
conditions is a system-wide failure of deterrence. Systemic deterrence is here
taken to embrace the strength of international organizations against aggression,
the balance of power, military capabilities, defensive alliances, clarity about


Turner 69

authorities on the United Nations, Professor Rosalyn Higgins of the University
of London, provides revealing examples:

‘This right [of self-defense] is available equally to an indirect use of force as well as
a direct use of force. A State may protect itself against irregular forces. Thus the
Lebanese delegate, in reserving to his country the right of self-defense against
alleged indirect violence by the UAR in 1958, stated that:

“Article 51 does not speak ofa direct armed attack. It speaks ofarmed attack.
It wishes to cover all cases of attack, direct or indirect, so long as it is an
armed attack... [I]s there any difference from the point of view of the
effects between direct armed attack or indirect armed attack if both of them
are armed and if both of them are designed to menace the independence of
a country?”

‘The claim of self-defense against indirect military aggression was also raised by
France during the Tunisian-French mutual charges of aggression in 1958. Declar~
ing that Sakiet-Sidi-Youssef, which it had bombed, was a rebel garrison for the
FLN, training recruits and d providing arms, the French Government insisted that
its actions were defensive.

Professors Ann and A.J. Thomas have taken a similar view, arguing specifically
that the Charter permits a use of defensive armed force against States which
initiate terrorist attacks using dissident nationals of the victim State:

The force which should comprise “armed attack” has been broadly defined as “any
elements at the disposal of States which are capable of destroying life and property
or inflicting serious damage.” This would include not only a direct use of force
whereby a State operates through regular military units, but also an indirect use of
force whereby a State operates through irregular groups or terrorists who are
citizens but political dissidents of the victim nation. The inter-American system
has characterized such indirect use of force as internal aggression in that it includes
the aiding or influencing by another government of hostile and illegal conduct
against the established political order of government in another country. Since it
is usually an attack against the internal order through an attempt to overthrow or
harass the victim government by promoting civil strife and internal upheaval or,
once civil strife has commenced, by an attempt to take over the leadership of those
in rebellion, it is a vicarious armed attack. .. .

That such vicarious, indirect armed aggression falls within the term “armed
attack” as used in Article 51 of the UN Charter has been asserted on several
occasions. In the Greek Case, which came before the UN in December 1946,
the United States took the position that Yugoslavian, Albanian, and Bulgarian
assistance to guerrilla forces fighting against the Greek Government in civil strife
in that country amounted to armed attack making Article 51 applicable. ...
Secretary of State Dulles . . . was of the opinion that the words “armed attack”
included armed internal revolution which was fomented from abroad and aided
and assisted from abroad.”


238 Legal & Moral Constraints on Low-Intensity Conflict

wrong and maybe we better figure a way to get out. But if you really take that
seriously, I don’t think that you're likely to misuse just war doctrine.

PROF. ECKARDT: May I comment on the second question about
reciprocity?

It seems to me that the view expressed by my students is a corollary of Professor
O’Brien’s thesis. We obey the rules because if we don’t, we lose the support of
our people and we lose the war. If My Lai didn’t teach us anything else, it taught
us the consequences of indiscipline on the battlefield. One uses this particular
concept in going to war to get consensus and also to maintain it, as Professor
O’Brien advocated in that ’83 article, by following the high standards of just war
and international law. That seems to me to be very important.

PROF. COLL: Let me turn to the floor here. Professor Farer.

PROF. FARER: I want to respond to the very question that you pose Alberto,
and maybe the way to go about it is to look at the past 10 or 15 years and ask
ourselves what sorts of activity would we want to engage in involving the use of
force. If we could have done what we wanted to do within the parameters of
law as those boundaries are generally seen, or as I earlier pointed our, the way
most international lawyers outside of the United States do see the limitations on
the use of force, then Professor O’Brien’s point about the inadequacies of
international law tends to fall. In my judgement the Afghanis weren’t insurgents
because there was never a legitimate government there. It was a government
installed by an act of aggression. Actually, we were providing continuing
assistance to the representatives of the sovereignty of the Afghan State, and
therefore, our assistance there was well within the indisputable parameters of the
existing international legal system. No problem. We don’t have to have recourse
to just war theory.

Now, Bill’s point about the way just war theory can supplement international
law was useful. Even if the assistance to the Afghanis was clearly legal, we might
still decide to search our consciences more deeply. One of the points I thought
you were getting at was that the difference between legal analysis and just war
analysis is that just war analysis is historically more generous, it’s broader. It
requires us to take more kinds of events into account. It requires us to start back
earlier in terms of the longer term relationship between two entities, and it asks
us to consider future relationships between those entities. Although I think you
overstated the case in your presentation, law does tend to say you can go or not
go. If you can go, it imposes somewhat fewer restraints, I think, on the
decisionmaking process than just war theory.

Let me take my argument to its conclusion by considering in very short order
three other recent cases of U.S. intervention abroad. I always felt that a respectable


Roundtable Discussion 305

moment, with the orders one is receiving from above. The second reason why
this may not be the best vehicle for the justification for unilateral action by a
major power in a unipolar system is the anarchic potential in the just war tradition.
Several panel members who are experts in the tradition and have devoted their
careers to its study, have pointed out that it is not a science. The use of just war
reasoning is an art, it’s appreciative, and reasonable people disagree over its results.
The weight, the intensity of compulsion of certain factors may vary. The
introduction of just war doctrine into a highly disciplined organization like the
military could be potentially quite anarchic, unless, I laugh even to say this, we
can imagine prohibiting officers of different ranks from using the techniques of
just war to appraise whether or not things are right, and supply them with a just
war expert who would tell them the correct position. We are introducing
something which is, by its nature, democratic and invites every sentient human
being to use his intellect and capacity for judgment to determine the justice of
using coercion at a particular moment. I ask you whether that is something you
‘want to incorporate into the decision-making apparatus of the military organiza-
tion. The military, it seems to me, operates best when there is a strict hierarchy
in command. As in the language of the Book of Leviticus, one says “This is the
law and neither shall you depart to the left nor to the right.” It’s possible that the
introduction of just war doctrine would return us to the chaotic periods of the
Book of Genesis, in which, as the scribe explained, each man did that which was
right in his own eyes. I cannot imagine an efficient military operating in that
fashion.

The third problem, which is explosive, was pointed out by Father Winters in
one fashion, Professor Farer in another, and Professor Nardin. It is that we are
departing from a set of value judgments that have been made in the largely
collaborative process we call international law, which over time has established
policies with certain balances attached to them. We are shifting over to the policy
or value preferences of one particular country or social stratum and these may
not be universal values.

Father Winters talked about the culture specific problem. Carnes Lord, this
morning, in talking about strategic cultures, put great stress on the argument that
some, including myself, made yesterday, about the universality of norms. They
may indeed be universal, but if strategic cultures are quite different, we can
assume that culture will dominate in moments of crisis in which those charged
with the security of a group will be primarily concerned with the maintenance
of its collective integrity. At such times, they will do what is necessary to follow
the imperatives of the strategic culture, rather than the larger international norms.

I am, on the other hand, moved by the fact that the United States is in a
position in which it has major responsibilities to the rest of the international
community. I think that these responsibilities are quite clear and I think that they
are the same whether one tries to justify them using a conception of national


268 Legal & Moral Constraints on Low-Intensity Conflict

relative peace or in the absence of a major external threat. Key agencies such as
the Departments of State, Defense, and Treasury and the Central Intelligence
Agency enjoy considerable autonomy. In recent years, Congress’ challenge to
Presidential discretion and prerogative in national security affairs has led to a
farther weakening of executive control, particularly of the intelligence com-
munity. All of this might be less significant if there existed in the United States
a cohesive political class with traditions of service to the nation’s military and
security forces and an instinctive understanding of the requirements of national
strategy, of the sort that ran the British and French Empires in the nineteenth
century or the Soviet Empire in the twentieth. As a general rule, however,
America’s political elite has shown little knowledge of or interest in “imperial
policing,” as the British used to describe low-intensity warfare.

At senior levels of the U.S. Government, in any event, there has been little
effort to develop doctrines or mechanisms that might provide a strategic
framework for the conduct of small wars. In a surprising reversal of previous
patterns, what interest there has been in this area has come from the Congress.
The Low- Intensity Conflict Board, a subcabinet-level coordinating mechanism
Congress asked to have established in the White House in its military reform
legislation of 1986, remains essentially a dead letter. Although forced by Congress
to accept the creation of a unified command for special operations forces and a
new bureau in the Department of Defense for special operations and low-inten-
sity conflict, the Executive branch at the highest levels has consistently opposed
institutional reform or other fundamental measures to improve either its strategic
competence or its operational capabilities in the low-intensity arena. This clearly
reflects strong resistance from the relevant bureaucracies, particularly the Depart-
ment of State, but to some degree also the defense establishment as a whole.

What problems does all this create for the strategic direction of small wars? In
the first place, and probably most importantly, military contingency planning
remains totally divorced from the civilian national security agencies, and subject
only to very restrictive review by civilian officials within the Department of
Defense. This has consistently caused difficulties in the area of U.S. dealings with
the political leadership of the countries involved (notably the establishment of
the Endara government in Panama; but consider also the handling of the
Governor General of Grenada during Operation Urgent Fury). It has also led to
consistent neglect of civil-military planning issues both during and after combat
operations. The U.S. did not adequately anticipate the problem of breakdown
of law and order in Panama City during Operation Just Cause, or plan for the
reconstitution of Panama’s security forces, political system and economy (the
same failure occurred in Grenada). In the second place, U.S. intelligence
capabilities are not well configured to support low-intensity warfare. This is
particularly true of short-notice contingency operations (the absence of adequate
maps in Grenada has been widely remarked), but remains a problem even in


160 Legal & Moral Constraints on Low-Intensity Conflict

support to critics of US military action in the three cases mentioned earlier:
Grenada, Panama, and the Persian Gulf. But I think the broader thrust of these
developments supports intervention when there is a broad international consen-
sus favoring it, Such a consensus was overwhelming in the case of the Gulf War,
providing justifications for the use of force against Iraq that went well beyond
any interests particular to the United States.

It may be then, that these developments only appear to modify sovereignty
by focusing on human rights or alter its conception by reformulating it at the
international rather than the national level. I am far from convinced that these
developments in fact alter the concept of State sovereignty at all. What they do
is more subtle and, in some ways, more far-reaching. They allow interventionary
actions despite sovereignty in cases of egregious violations of generally accepted
tights, and they do so by giving international sanction to such interventions, even
when carried out by a single nation.

Such a state of affairs depends on a large measure of international consensus
and, perhaps more importantly, the lack of a significant challenge to that
consensus. It could not exist so long as the Cold War lasted, and it may not exist
at some future point that is now below the horizon. Nor is such a consensus in
any way automatic; it must be achieved anew in each new situation. But when
it does exist, it redefines the rules of national and international behavior.

Specifically, I think the result is to open the door to clearly defined police-like
activities involving the use of force to resist or remove what are broadly
recognized threats to a particular people or to international order as such. Just
war tradition as a whole has always been much more open to such interventionary
action than positive international law has become in the twentieth century. The
latter defines legitimate resort to force as always responsive: it is second use,
responding to a prior, aggressive first use. While aimed at dampening resort to
force in general, this conception of right use of force has the effect of identifying
any employment of military force across national borders as aggressive by
definition. The burden of proof is always to show that it is not. I suggest that
under certain conditions now — conditions of egregious and unpunished
violations of rights or threats to the security of others — the burden of proof has
shifted so as to distinguish between aggression and temporary, interventionary
use of military force to set right such violations and threats.

3. Violations and Threats Deserving a U.S. National Response. The
term “low-intensity conflict,” is relatively new and covers a significant variety
of types of conflict. According to the 1985 definition of the Joint Chiefs of Staff,
low-intensity conflict is a limited politico-military struggle to achieve political,
social, economic, or psychological objectives. It is often protracted and ranges
from diplomatic, economic, and psycho-social pressures through terrorism and
insurgency. Low-intensity conflict is generally confined to a geographic area and
is often characterized by constraints on the weaponry, tactics, and level of


196 Legal & Moral Constraints on Low-Intensity Conflict

by means of terrorism.°® Security Council Resolution 611 of April 25, 1988,
which was made possible by a U.S. abstention, condemned the assassination of
Abu Jihad, as all previous resolutions had condemned Israeli counterterror
attacks, except when vetoed by the United States.” Resolution 611 is not an
impressive precedent for dealing with the status of assassination in international
law.

A just war perspective on the problem would emphasize the ramifications of
an assassination in context rather than attempt to establish a universal prescription.
Just war doctrine would single out targets of assassination who clearly had a
military or combatant status. A militarily active chief executive or a revolutionary
or terrorist leader would be distinguished from other high officials who seemed
to fall more into the category of civilian or non-combatants. Having said this,
my own approach would be prudential rather than grounded in some basic
normative principle. It is likely that one assassination would breed a spiral of
others. This is demonstrated in the numerous instances of gangster wars, as
described in The Godfather. Vengeful assassination could lead to endlessly recipro-
cating attacks which, in the end, might not give either side any decisive
advantage, would lead to chaos and would tend to violate right intention. This
just war analyst would not encourage assassination as an instrument of policy,
always recognizing that an important enemy leader who took risks as a combatant,
including residence inside of military targets, might be killed by counterforce
military actions.

Just War Doctrine Applied - Counterterror Operations

The preceding discussion has covered a wide variety of situations in which
armed force is used in low-intensity conflict. The main focus, however, has been
on intervention on one side or another of revolutionary/counterinsurgency war.
There is another form of low-intensity conflict which is usually part of revolu-
tionary/counterinsurgency war but which has become so distinctive and
threatening that it requires independent treatment. This is terrorism. Terrorism
is often just one of the measures used by insurgents and counterinsurgents. It may
simply supplement the main efforts of guerrilla and counterguerrilla warfare, as
it did in Vietnam. Sometimes, as in the case of the IRA, terror is the sole form.
of armed coercion. In the case of the PLO, terror is the main form of armed
coercion but circumstances sometimes force the PLO to fight in a counterforce
mode, as it did in Lebanon in 1978 and 1982,

Whether terrorism is the sole, the principal or a supplemental form of armed
coercion, it confronts an adversary with very difficult problems. Terrorism turns
the concept of a counterforce warfare on its head. It is usually not directed at
military targets. Rather, terrorists deliberately attack non-military targets with
the intention of creating fear and insecurity in the target population and


346 Legal & Moral Constraints on Low-Intensity Conflict

Can these theoretical principles assist the American statesman to develop a
framework for the consideration of covert action as an instrument of statecraft?
‘Will resort to covert action be appropriate in the years ahead, given the dramatic
changes of the past decade? There is little doubt that the international security
environment and political terrain of the late 1990s will differ in several ways from
that which characterized the Cold War years.

On the one hand, while Russia retains a formidable nuclear arsenal and the
fature character of its domestic regime remains an open question, for the time
being the Russian State poses no direct political or military threat to American
interests. As long as it remains in its present weakened economic and political
state, Russia is unlikely to challenge the United States in the ways it did
throughout the four decades of the Cold War. In fact, there is not a threat or
even a potential “peer competitor” discernible within the next twenty years, that
could place the United States in the kind of bipolar or zero-sum strategic context
that marked the Cold War years.

Yet, the world of the 1990s has turned out to be far more disorderly than was
originally expected. Iraq’s invasion of Kuwait in 1990 demonstrated the serious
dangers that can be posed to American interests by ambitious regional powers in
command of vast conventional arsenals and with the potential to employ weapons
of mass destruction. Similar challenges could be mounted in the future by Iraq
again, or by Iran, North Korea, or any other among the growing number of
regional powers around the world that are likely to be emboldened as the United
States and Western Europe reduce their own military forces and defense budgets.

Meanwhile, an alarmingly large number of conflicts, some of them best
characterized as “unconventional” or “low-intensity”, have broken out
throughout the Balkans, the Caucasus and Central Asia, the Middle East, and
large portions of Africa. While American interests are not seriously affected by
all of these conflicts, it seems reasonable to expect that in the future some of these
“small wars” might develop in ways that could affect American interests in such
a way as to require at least a limited American response, either directly or
indirectly. A Balkans war that spreads and eventually drags NATO into its vortex;
a Russo-Ukrainian conflict that escalates into open war; or civil strife in Mexico
or the Caribbean that triggers waves of refugees to the United States are just a
few of the hypotheticals that illustrate the tenuous fragility underlying the
contemporary international system.

To deal with any of these potential challenges to its security, the United States
will need a wide array of policy instruments, including covert action. The
following guidelines are offered as a set of tentative suggestions for covert
operations that might include: paramilitary support to a government threatened
by internal war or to a movement challenging a government; other paramilitary
special operations, including counterterrorism and counternarcotics; coups as
described earlier in this paper; and a range of larger political actions.


186 Legal & Moral Constraints on Low-Intensity Conflict

The first three exceptions have been invoked a number of times, They are
controversial in areas where interventions have been deemed self-serving and
harmful but, in American practice at least, they are considered respectable
justifications for intervention. However, such interventions must be justified as
“reasonable” in the context of the situation.

A right of humanitarian intervention has been supported by some of the most
eminent international law publicists.’ However, there is little practical evidence
that true humanitarian intervention has occurred. Supposed examples such as
India’s intervention in the Bangladesh War of National Liberation are tainted by
the self-serving interests of the intervening power.

Just war doctrine can assist in the search for “reasonable” responses to
intervention taking the form of indirect aggression. Beyond that, just war
doctrine can help penetrate the veils of “sovereign equality” and “self-determina-
tion” to determine what courses of action are most likely to lead to justice and
democracy. Unlike the tendency of international law, just war approaches need
not always defer to claims of untouchable “sovereignty” and to the primacy of
“self-determination” if fundamental human rights have been violated on a large
scale.

Just War Doctrine Applied - War-decision Law (Jus Ad Bellum)

I will assume that the usual justification for recourse to armed force will be
some form of individual or collective self-defense. I will further assume that most
cases of American recourse to armed force will involve intervention and that the
level of interaction will be some form of low-intensity conflict. The justification
will be reasonable counterintervention against antecedent intervention amount-
ing to either direct or indirect aggression. The tesk is to bring just war resources
to the assistance of efforts to frame reasonable claims for self-defense and
counterintervention.

Competent Authority. Just war doctrine demands that the commitment of a
State’s armed forces to war be based on whatever authority is necessary in that
State to take such action. Just war doctrine has not yet really reached consensus
on the difficult question of establishing competent authority in a revolutionary
leadership. Since the majority of wars contemplated in this study are revolution-
ary/counterinsurgency wars, it will be necessary to discuss the requirements for
competent authority in terms of American law, in terms of the law and politics
ofa counterinsurgent government and in terms of the leadership of a revolution-
ary force. Of course, the United States may intervene on the side of the insurgents
in a revolutionary war, as it did in Nicaragua.

Competent authority for U.S. intervention in revolutionary/counterinsur-
gency wars has been a controversial subject in modern American history. The


848 Legal & Moral Constraints on Low-Intensity Conflict

In fact, the Doolittle position contributes to the argument that covert action
is analogous to involvement in dirty tricks and dirty wars; covert action is seen
as lacking any moral purpose or association with American values. This was the
argument advanced above by Kennan and Ball. It leads to the assertion by John
Lewis Gaddis that if the American statesman is to employ covert action he or she
must suspend values and assume a position of moral relativism. This dichotomy
is not the only option, and covert action is not synonymous with dirty tricks and
dirty wars. While covert action can be used, and often has been used, in the
manner described by Doolittle, Kennan, Gaddis and others, it also may be
employed in the service of policy objectives that include the promotion of
pluralism, human rights, and other worthwhile values. Used in this way, covert
action can be carried out within a framework that blends prudence and principles.
It serves policies that pay attention to the national interest, but also go beyond it
and incorporate principles upon which the American regime was founded. To
borrow the language of a former practitioner, covert action’s “stock-in-trade
[need not be] the seduction and manipulation of innocents, but the sub-rosa
support and succor of peoples and institutions legitimately in need of such
assistance.”

#3 Because of domestic sensitivities, covert action should be used on behalf of values and
interests that are important.

Covert action should be in support of a policy that is concerned with an
important value or interest of the United States. In other words, it should not
be undertaken for trivial or inappropriate purposes. Furthermore, if the policy
objectives can be accomplished openly, then it is best to do so. Why do covertly
what can be undertaken overtly? However, we should recognize that not every
policy objective can be undertaken or accomplished in the open.

Whenever policymakers agree on a covert action they should be prepared to
explain that action to the public in case the activity in question becomes public
knowledge. The American interests at stake should be clear and discernible. Since
intervention has such a negative connotation to the American people, the
rationale for covert intervention has to be defensible.

#4 Foreign governments and political movements suppcrted through covert action must meet
certain standards of legitimacy acceptable to the American public.

If a covert action is in support of a particular government involved in a
protracted internal war, then that incumbent must meet certain political standards
to justify U.S. support. Often governments threatened by a guerilla insurgency
contribute to internal conflict and instability through their own inefficiency,
corruption, and repressiveness. In order to qualify for our assistance, such
governments must be moving in the direction cf political reform and change


46 Legal & Moral Constraints on Low-Intensity Conflict

‘Weakness provokes insult and injury, while a condition to punish, often prevents
them. This reasoning leads to the necessity of some naval force; that being the only
weapon by which we can reach an enemy. I think it to our interest to punish the
first insult; because an insult unpunished is the parent of many others. We are not,
at this moment, in a condition to do it, but we should put ourselves into it, as soon
as possible.’

How far can the United States go in its efforts to promote justice in the struggle
against terrorism, narcotics, and other important threats without unacceptably
infringing upon the sovereign rights of other States? As we ponder this important
question, we ought to bear in mind that the underlying principle of “non-inter-
vention” currently embodied in Article 2(4) of the U.N. Charter was a key
element in early U.S. foreign policy. On October 24, 1823—about a month
before the promulgation of the Monroe Doctrine—Jefferson wrote a letter to
President Monroe praising the proposed remarks:

Our first and fundamental maxim should be, never to entangle ourselves in the
broils of Europe. Our second, never to suffer Europe to intermeddle with
cis-Atlantic affairs. America, North and South, has a set of interests distinct from
those of Europe, and peculiarly her own. She should therefore have a system of
her own, separate and apart from that of Europe. While the last is laboring to
become the domicile of despotism, our endeavors should surely be, to make our
hemisphere that of freedom. . . . Noris the ocasion to be slighted, which this proposition
offers, of declaring our protest against the atrocious violations of the rights of nations, by the
interference of any one in the intemal affairs of another . . .

This idea of prohibiting “the interference of any one [State] in the internal
affairs of another” was a radical concept when proposed by Jefferson, but it was
a sound principle and is now embodied in both customary and conventional
international law. On occasion, it may act as an impediment to otherwise
attractive measures to address problems of low-intensity aggression. As we seek
solutions to these serious threats to our national security, we ought to make every
effort to leave intact the fundamental prohibition against interfering in the
internal affairs of other States.

The Dual Significance of Reciprocity

Policymakers need to keep in mind the important legal concept of reciprocity.
Two aspects of this concept are relevant to the topic before us. The first is the
reality that any “loopholes” in existing law we find to exploit and any new
principles of customary law we help to forge will be available for the world’s
radical regimes and other potential adversaries to use in their relations with us.
The second draws upon Jefferson’s observation that law is a “means” and not the
ultimate “end” of policy, and we should keep in mind that the United States


Weigel 259

taboos surrounding the principle of sovereignty. The principle evolved at the
Peace of Westphalia, after all, in an effort to prevent Europe from degenerating
into a continental free-fire zone with ecclesiastical approbation for the sundry
combatants. Tampering with that principle should not be done blithely, for in
international politics as well as in personal life, there is always the risk of letting
loose seven devils worse than the first.

In the just war tradition as I understand it, and in modern Catholic moral
theology (in the exegesis of which I may have, as the lawyers say, some
“standing”), the principle of sovereignty has never been understood to have
absolute value: which is to say that the norm of the inviolability of sovereignty
‘was never understood as an exceptionless norm. But it was understood to be an
important norm, and the situations in which it could be overridden had to be
grave indeed. All in all, the principle of sovereignty has served the world rather
well, and if it is taken perhaps a bit too absolutely in modern international law,
then it is probably better to err on the side of caution than to risk the dissolution
of the principle altogether.

On the other hand, consider this scenario: One of the new democracies of
eastern Europe implodes under economic and social pressures, and a fas-
cist/nationalist dictatorship emerges. The dictatorship attempts to consolidate its
power by persecuting minority group X, which had done reasonably well during
the economic restructuring that followed the communist crack-up. The persecu-
tion includes the whole range of repressive evils: discriminatory laws, penal
camps, torture, executions. There is even the possibility of genocide. Are we to
say that the international community—or, to sharpen the issue even more
directly, the United States, perhaps in conjunction with regional allies—has no
recourse other than diplomatic pressure and economic sanctions to stop the
killing? On the other hand, how does an American President explain to American
parents, at the funeral, that their son had to be put in harm’s way for the sake of
achieving a humanitarian good in a faraway land which posed no threat to our
national security?

There are no simple answers—moral answers or political answers—to these
dilemmas. It cannot be the case that the United States is undera moral obligation
to intervene militarily in every situation in which human rights are being
systematically and brutally abused. On the other hand, and in situations in which
there has been no cross-border violation of sovereignty, can the “human rights
criterion” ever push the calculus of “just cause” to fulfillment? What obligations
do we incur to help stabilize the future of the country in question, having
removed the abusive government?

Perhaps here is where the discussion of national low-intensity conflict and
special operations capabilities bumps up against the question of international or
regional interposition of forces. For it does seem as if there is not so great a breach
of the principle of sovereignty if military action is taken by a regional force or


70 Legal & Moral Constraints on Low-Intensity Conflict

Historic U.S. View

The United States Government has historically taken the view that the
right of self-defense was unimpaired by the Charter and remains broad to
encompass any form of armed international aggression. Article 51 was drafted
by a subcommittee of Committee III in San Francisco under the able
leadership of U.S. Senator Arthur Vandenberg. In summarizing the status of
the negotiations at the second meeting of Committee III on 13 June 1945,
Vandenberg stated: “[W]e have here recognized the inherent right of self-
defense, whether individual or collective, which permits any sovereign State
among us . . . to ward off attack pending adequate action by the parent body.
And we specifically recognize the continuous validity of mutual protection
pacts...."° This language is hardly consistent with a view that Article
51 was intended to vitiate all but a narrow area (“armed attack”) of the
aggression spectrum in which defensive force might be used. Indeed,
Vandenberg later said that had the conference not agreed to reaffirm the
inherent right of collective self-defense, “there would have been no
Charter.” He argued: “Nothing in the Charter is of greater immediate
importance and nothing in the Charter is of equal potential impor-
tance.”

One month later, when the ink on the Charter was barely dry, John Foster
Dulles—who had advised the U.S. delegation to the San Francisco Conference—
told the Senate Foreign Relations Committee:

At San Francisco, one of the things which we stood for most stoutly, and which
we achieved with the greatest difficulty, was a recognition of the fact that that
doctrine of self-defense, enlarged at Chapultepec to be a doctrine of collective
self-defense, could stand unimpaired and could function without the approval of
the Security Council.”

In May 1947 the U.N. Commission of Investigation Concerning Greek
Frontier Incidents reported to the Security Council that Yugoslavia, Albania,
and Bulgaria had “supported the guerrilla warfare in Greece.”** During the
Security Council’s consideration of the issue (prior to action being blocked by a
Soviet veto), a U.S. representative “expressed the view that the failure of the
Security Council to act did not preclude individual or collective action by States
willing to act, so long as the action taken was in accordance with the general
purposes and principles of the United Nations.”*? He added:

I do not think that we should interpret narrowly the “Great Charter” ofthe United
Nations. In moder times, there are many ways in which force can be used by one
State against the territorial integrity of another. Invasion by organized armies is not
the only means for delivering an attack against a country’s independence. Force is


274 Legal & Moral Constraints on Low-Intensity Conflict

I believe, personally, that the term “assassination” should be differentiated
from garden variety homicide and limited to selective attacks on individual
civilians for political or social purposes. And according to that definition, killing
chiefs of States or other key civilian officials would clearly be taboo. But
pseudo-civilians, let’s say in their role as military commanders, clearly ought to
be legitimate targets. I’m thinking of people like Saddam Hussein. We spent a
lot of time trying to blow this guy up with bombs. What’s wrong with hitting
him with a bullet? I really don’t understand the difference. Legitimate targets
could include senior military officers, whose deaths I would call justifiable
homicide. I love a quote from Field Marshall Slim who used to say that “Nothing
is better for the morale of troops than occasionally to see a dead general.”

The prime movers for military projects might be considered legitimate targets.
I’m thinking, for example, about what would have happened it somebody had
hit Oppenheimer or Szilard while they were trying to put the Manhattan Project
together. What would have happened ifsomeone had hit Hyman Rickover when
he alone was pushing for a nuclear-powered Navy?

If you don’t like assassination, what about abduction? It’s a lot harder, but it
gets you away from the assassination prohibition. The real master of this was
Otto Skorcezeny. This guy snatched Mussolini off the top of Grand Sasso
Mountain, which was supposedly impregnable, and spirited him away to establish
a fascist government in exile. In 1944, the Hungarians announced their intention
to leave the Axis. Skorczeny kidnapped the regent and Hungary stayed in the
war until the bitter end in 1945. During the Battle of the Bulge, General
Eisenhower was never allowed out of his quarters because we were afraid that
Skorczeny was either going to assassinate or abduct him.

Now, there’s a flip side to all of this, obviously. Assassination and abduction
are games that anybody can play, but only gifted players can play well. My guess
is that if John Wilkes Booth had known it was going to take a hundred years to
sort things out after he assassinated Lincoln, he might have thought a second
time. So the bottom line in thinking about this particular issue is that you need
to take a hard look at the cost-benefit ratios, and weigh them not only with
political leaders, but also with some special operations professionals. You only
give the word to go then, if the plan looks good from the U.S. policy standpoint.
If that is done, it’s just possible that these kinds of activities could fit within our
moral framework.

MS. HECKLINGER: A question then. How would you apply that to the drug
war and what place would the principle of reciprocity have in your plans?

MR. COLLINS: You know, I’m a good Christian but I really wouldn’t have
any compunction at all about hitting some of these drug lords. I think again that


306 Legal & Moral Constraints on Low-Intensity Conflict

interest, or human rights, or international law. We are integrated into a very tight
and interdependent international community. If it does not work well, we will
suffer precisely because of this inextricable integration. So, we have a major
interest in seeing that it works right.

Rhetoric aside, peoples all over the world look toward us in many ways,
particularly in moments of crisis, to do something. If you accept that premise,
and it is one from which I start, then the question should be: Is just war, as it’s
developed, the best ideological device for achieving our purpose? Do some of
the costs of the just war tradition, which I think would rest very uneasily if it
became an official ideology, make it less than the optimum vehicle for achieving
this objective? The perspective of just war theory and natural law is that of those
committed to making decisions and not those committed to receiving com-
mands, I think it might be useful to generalize a set of intellectual tasks that we
ought to follow and spell them out in some detail, rather than tying ourselves to
a single tradition. I think that in every decision we ought to be looking at five
intellectual tasks, each of which should be performed quite scrupulously. The
first is goal clarification. If we are suggesting that in some circumstance we do
things differently from what a significant part of the world has prescribed, I think
it important that we not think in terms of what we need, which ultimately is a
solipsistic justification we would find unacceptable if used by others. We must
consider whether what we are inclined to do serves the interest of the interna-
tional community.

I think we should go through a clear process of goal clarifications which
identify common interests. Father Winters’ warning about the potential for
cultural parochialism in this process of ratiocination, should not be ignored. We
should acknowledge it and develop methods for minimizing that particular
pathological potential. I think once we’ve established goals, we should systemati-
cally review the extent to which they have been achieved in comparable
situations in the past and their costs. I think it behooves us to be extremely
responsible in this fashion and to canvass what the past can teach us about the
achievement of these particular goals at particular moments.

I think we have to identify the conditions that prevailed then and are likely
to prevail in the near future when the strategy is put into place, in order to make
sure that the lessons that were learned from the fast are still relevant. I think we
owe it to ourselves when we are contemplating doing something like this, to
consider its likely consequences. I agreed with <lmost everything Judge Sofaer
said this morning but one remark in the discussion troubled me. In response to
a comment he asked, “If we don’t get these two men, what difference does it
make?” I would think that if we can make a projection toward the future and
‘we can find that the cost to our values or to the texture of international politics
or world order is minimal, then an individual initiative on our part may not be
justified.


342 Legal & Moral Constraints on Low-Iintensity Conflict

Here we see Athenian democracy at its best. This is government based on
laws that liberate the talents of Athenians and contribute to making Athens,
- in Thucydides’ view, the best regime. Her institutions and constitution
underlie a character based on virtue and moderation. According to Sears, these
qualities contribute to “wise collective decisions and to more effective public
enterprises since in each man daring and deliberation are united. Athens’
energy, daring, and innovativeness have all been encouraged by free political
institutions.”®

Pericles also stated with pride that the Athenians were noble in their
treatment of others. “We make friends by doing good to others . . . this
makes our friendship all the more reliable, since we want to keep the
gratitude of those who are in our debt by showing continued good will
to them.””° Here Thucydides is drawing the distinction between how
Athens and Sparta acquired allies. The Athenians are restrained in their
use of power over others and they encourage the development of
democratic regimes. Pericles states: “We are unique in this. When we do
kindness to others, we do not do them out of any calculations of profit
or loss: we do them without after thought, relying on our free
liberality.”7!

This defense of empire can also be found in the earlier dialogues at the Spartan
Congress held just before the outbreak of the war, where the Athenian delegates
pointed out that they ruled their empire more justly than their power required
or than others in similar circumstances did:

Those who really deserve praise are the people who, while human enough to enjoy
power, nevertheless pay more attention to justice than they are compelled to do
by their situation. Certainly we think that if anyone else were in our position it
would soon be evident [that] we act with moderation . . . Yet, unreasonable
enough, our very consideration for others has brought us more blame than
praise . .. No one bothers to inquire why this repzoach is not made against other
imperial powers, who treat their subjects much more harshly than we do: the fact
being, of course, that where force can be used there is no need to bring in the law.
Our subjects, on the other hand, are used to being treated as equals; consequently,
when they are disappointed in what they think right and suffer even a smallest
disadvantage because of a judgment in our courts or because of the power our
empire gives us, they cease to feel grateful to us for all the advantages which we
have left to them.”

In the remainder of his history, Thucydides described how Athens abandoned
moderation, justice, and prudence in its statecraft. That awful descent is, in fact,
the major theme of Thucydides’ History. With the death of Pericles power passed
to men who were either demagogues, personally corrupt, or fatally timid. They
lacked Pericles’ prudence, that is, his ability to blend daring and innovativeness
with moderation and restraint.


Teson 105

however, further restrict the legitimacy of these operations. The first is the need
to satisfy the customary requirements of necessity and proportionality. Con-
siderations of necessity involve the determination that no less intrusive means are
available. Considerations of proportionality involve calculations about costs and
benefits of the low-intensity operation in a way that is not solely dependent upon
the national interest. The general rule is that the coercion used in the operation,
and the consequent harm done by it, has to be proportionate to the importance
of the interest that is being served, both in terms of the intrinsic moral weight of
the goal, and in terms of the extent to which that goal is served in this particular
instance.

Vill. The Requirement that the Operation Comply
with Minimal Notions of Decency

The final condition for a morally defensible low-intensity operation is that it
must not be so odious in its modus operandi as to corrupt the virtues necessary to
liberal democratic life.‘° This requirement rests upon an important moral insight:
there are things we cannot do to others because of what they are (i.e., they hold
rights); and there are things we cannot do to others because of what we are.”°
So what are we? As members of a just civil society we must act in a way such
that our civic virtues and best traits of character will be cultivated. This applies,
afortiori, to actions by the government, which is supposed to represent the people.
In part, the desirability of governmental virtue derives from considerations of
self-interest: we cannot expect our government to behave honorably with us if
it goes around the globe sending hit squads to assassinate and torture people, even
for just causes.

An example may help illustrate this proposition. Is it morally permissible to
assassinate Saddam Hussein? I would think not. The proper course of action is
to help the Iraqis overthrow him, capture him, and try him in accordance with
internationally accepted norms of judicial procedure, by Iraqi courts with
international supervision, or better still, by an international criminal court.
Assassination is banned, not because Saddam doesn’t deserve to die, but rather
because agents of a liberal democracy must conduct themselves in a way that
honors the civic virtues for which they stand. The same reasoning applies to
other intrinsically despicable modes of action, such as torture and terrorism,
regardless of sovereignty considerations, just cause, or national interest.>!

IX. Conclusion
I have argued in this paper that low-intensity operations may be justified only

if they further a just cause, they do not infringe the target State’s sovereignty
(which is itself a function of internal legitimacy), they otherwise respect human


Winters 179

Nor, in principle, does the ‘right authority’ to use force to combat such threats extend only to 2
nation’s borders, so that the wrongdoers in question can take refuge in an international ‘no man’s land’
orbehind the legal wall of another nation’s formal sovereignty. Rather, force may be employed across
borders in cases of serious threats that can be dealt with in no other way.

2, KLEIN, SOVEREIGN EQUALITY AMONG STATES: THE HISTORY OF AN IDEA 98-99 (1974).

3. Id, at 100-01.

4, Id, at 109-13,

5. This entire period is narrated in KINZER, BLOOD OF BROTHERS: LIFE AND WAR IN NICARAGUA,
(1992). The destabilization of Anastasio Somoza Debayle in July, 1979, is narrated in LAKE, SOMOZA
FALLING: THE NICARAGUA DILEMMA: A PORTRAIT OF WASHINGTON AT WORK (1989), and in
PASTOR, CONDEMNED TO REPETITION: THE UNITED STATES AND NICARAGUA (1987). Pastor's early
history (Chapter II, “A Fractured History”) reveals the continuum of “reform-intervention” throughout the
twentieth century,

6. CE. infra, Conclusion, at 176-177.

7. Final Report, Joint Low-Intensity Conflict Project, U.S. Army Training and Doctrine Command, Fort
Montoe, Virginia (1 August 1986), at 4.

8, Initial Draft, Some Thoughts on Low-Intensity Conflict, Army-Air Force Center for Low-Intensity Conflict,
Langley Air Force Base, Virginia (August, 1989), at 2-7, 2-8,

9. MOORE, LAW AND CIVIL WAR IN THE MODERN WORLD (1974). Compare Moore's Chapter I,
Toward an Applied Theory for the Regulation of Intervention, 26-27 with WALZER, JUST AND UNJUST WARS
86-108 (1977), seeks to interpret the substance of international law on intervention for a layman.

10, Walzer and Johnson agree that the right of sovereignty is not absolute, for it is generally understood in
the natural law tradition that sovereignty, like all other human rights, is an instrument of human welfare.
Non-intervention is, therefore, a moral and legal prohibition which may, under some circumstances, be
overridden by the prior imperative of the common good, or occasionally by the possible threat to the good of
neighboring nations. The decisive question, which evokes the specter of casuistry which accompanied the
natural law tradition atits best moments, isto define or identify those exceptional circumstances in terms general
‘enough to serve as a standard for decision-making.

Johnson points to at least two such cases in which he seems to argue that the just war tradition lends support
to principled abrogations of sovereignty: (1) “egregious violations of generally accepted human rights” (page
29); [cf. 47: ‘systematic and ongoing violations of human rights” and 2) “Broadly recognized threats to
particular people or to international order as such” (p. 30); [cf. p. 47: “threats to international order and the
security of other States by regional hegemons, and the global traffic in narcotics"]. Elsewhere, Johnson
specifically identifies the perpetrators of these violations as “petty dictators who use the resources of their
countries for their own purposes and against the good of the people,” and “drug traffickers” (pp. 26-27). Against
such offenders, one may legitimately appeal to the just war tradition to invoke the use of force (p. 26), according
to Johnson.

‘These two claims seem to me to constitute novel (if perhaps desirable) extensions of the just war tradition,
rather than ready corollaries of it. The claim for the use of force against drug traffickers within another country
rests on the premise that officials of foreign governments (e.g,, the U.S.) should “give and enforce the law”
about drug production/distribution in nations such as Colombia and Peru, even without the agreement of the
governments, “as 2 last resort.” (p. 35). I regard this claim as possibly unprecedented in the literature on the
just war tradition and probably contrary to the views on sovereignty of at least Thomas Aquinas and Vitoria.
(CE. footnotes 12-16, infra, with accompanying text). (There may indeed be other leading authorities in the
tradition who would support such a position, although I am unfamiliar with such sources.)

‘The associated claim, that military force may be invoked against “petty dictators who use the resources of
their countries for their purposes and against the good of the people” (pps. 26-27), seems to me equally
unfamiliar as a traditional stance of the just war tradition. For the determination of the fact of “tyranny” in
medieval political culture was a judgment reserved strictly to those people themselves who were its victims.
The little-understood medieval tradition of a right to revolution was historically understood as an exclusively
domestic prerogative and obligation. (Several brief passages representative of a vast literature may be found in:
CARLYLE AND CARLYLE, A HISTORY OF MEDIEVAL POLITICAL THEORY IN THE WEST (1928 and
after), III, 122-146; V, 36, 92, 105-120, and 460-469; and, VI, 75-78; GIERKE, POLITICAL THEORIES OF
‘THE MIDDLE AGE, at 74-77 (Maitland trans. 1938); and WILKS, THE PROBLEM OF SOVEREIGNTY IN.


Index

Legitimacy
covert activities, 348-349
critique of viewpoint on, 112~113, 129
culture specific, legitimacy as, 210
defined, 110, 130
democratic government, legitimacy based on, 222
Hussein, legitimacy following Gulf War, 166
invitation, criteria under jus ad bellum for intervention by
188
low-intensity operations against illegitimate government, 102-104
low-intensity operations against illegitimate state, 104
low-intensity operations against legitimate state, 101-102
Peruvian government, questions of legitimacy relating to, 134, 136
sovereignty, justification of, 98-100, 222
Leninist tradition of “vanguard of the proletariat,” 187
“Let justice be done though the heavens fall,” (fiat justitia, ruat coelum), 112
Liberal democratic theory: See Democracies and democratic ideals
Liby
‘Anicle 51 of UN Charter, 1986 attack on terrorists targets consistent with, 51
Article 41 sanctions against, 285
Congressional issues, 281
International Court of Justice, cases before, 115
jusad bellum, conditions of, 161
national security interest, 1986 raid as issue of, 308
Pan Am Flight 103, multilateral approach in dealing with terrorist attack on, 49
Reagan's speech concerning, 234
self-defense, US claim of in 1986 Libyan raid, 183, 197-198, 212, 232, 239, 299
state-sponsored terrorism supported by, 283
icber’s Code,,” 152
Limited warfare: See Low intensity conflict
Lincoln, Abraham, legitimacy questions relating to, 136
Long arm statutes, 47-48
drugs and drug trafficking, 200
kidnapping fagitives, 116
Louis IX of France, struggle to establish sovereign state, 174-175, 209
Low-intensity conflict
Sce also more specific topics
cultural and political restraints (US) on, 249-322
defined, xv, 3, 126, 215
Joint Chiefs of Staff, 160-161
philosophical viewpoint, 89-90
just war tradition: See Just war theory or tradition
legal constraints on, 23-144
moral constraints on, 145-248
protracted contlicts, criticism of conduct of, 268-269
sovereignty, issues surrounding: See Sovereignty
Low-Intensity Conflict Board, status of, 268

Machiavelli's “The Prince,” 8-10
“Mainline/oldline” Protestantism, growth of, 260-261
‘Mala in se (evil in itself), jus in bello applied to, 164-165
Manchuria, Japanese 1931 invasion of

equitable considerations, 50

Kellogg-Briand Treaty, effectiveness of, 63
‘Maniacal states: See “Crazy states” factor

375


108 Legal & Moral Constraints on Low-Intensity Conflict

36. See TESON supra n. 27, chapters 3, 4, and 112-14. See also BEITZ, POLITICAL THEORY AND
INTERNATIONAL RELATIONS (1979).

37. The distinction between the two kinds of social contracts was suggested by Arendt, Civil Disobedience,
in CRISES OF THE REPUBLIC 85-87 (1969). I elaborate the idea here in more detail.

38. I realize that this is not the thrust of international law, which tends to protect any individual who has
succeeded in subduing the population. See TESON, supra n. 27, chapters 3 and 4, and references therein.

39. This does not mean that foreigners may do anything with regard to the illegitimate government. In
particular, they may not overthrow it without the consent of the citizens of the State. See TESON, supra n. 27,
at 119-23.

40. See HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 266-274 (4th ed. 1990).

41. This was one of the brief periods of civilian government in Argentina.

42, See Murphy, Retributivism, Moral Education, and the Liberal State, Criminal Justice Ethics, (Winter-Spring
1985), at 3, Kant’s reason for rejecting deterrence and adopting retribution is unsatisfactory—even creepy. See
KANT, METAPHYSICAL ELEMENTS OF JUSTICE 99-106 (Ladd trans. 1965) (criminals must be punished
because if we don’t, we share in their bloodguilt).

43. Ofcourse, the situation changes radically if we change the date. Suppose Eichmann is residing in Buenos
‘Aires in 1978, sheltered by the fascist military regime. The considerations against abducting him do not apply
here, and Israel would have had a strong moral case for conducting the operation. The requirement that the
operation be as surgical as possible (discussed in the following section) still applies.

44, See Protocol Additional to the Geneva Convention, 12 August 1949, art. 51, 16 Int'l Legal Materials
1391 (1977) (indiscriminate attacks prohibited, but only “disproportionate” loss of incidental lives
prohibited). It is interesting to note that for the moral version of the doctrine, just cause is essential, so that
every death inflicted by the unjust warriors is unjustified. For international law, however, just cause is
irrelevant. The army on the wrong side of a war may also cause incidental loss of lives under the doctrine
of double effect.

45. A recent version of the doctrine is offered in Quinn, Actions, Intentions and Consequences: The Doctrine
of Double Effect, 18 Phil, & Public Af. 334 (1989).

46. See Thomson, supra n. 31.

47. Id, at 296-298,

48, In TESON, supran. 27, ladopted Daniel Montaldi’s suggestion that incidental loss oflivesin an otherwise
{justified operation can sometimes be justified by reference to the nature of the evil that the just warriors are
‘attempting to suppress. I suggested that the suppression of serious human rights violations was an interest
compelling enough to outweigh, sometimes, the bystanders’ right to life. See id., at 96-102, and references
ther Although I think I was on the right track, this view (which is consistent with Thomson’s “larger cause”
suggestion) needs to be elaborated further.

49. Virtue theory is usually traced back to Aristotle, See generally SHERMAN, THE FABRIC OF CHARAC-
TER: ARISTOTLE’S THEORY OF VIRTUE (1989) For a contemporary account, see MCINTYRE, AFTER.
VIRTUE: A STUDY IN MORAL THEORY (2nd ed. 1984) The effect of adding virtue considerations to rights
considerations is that the scope of morality is enlarged. In that sense, virtue theory provides important insights
and supplement to liberal rights theory. However, contrary to virtue theorists, I regard civic virtues as parasitic
‘on the values that underlie a liberal democracy, not the other way around,

50. See NOZICK, PHILOSOPHICAL EXPLANATIONS 400-402 (1981).

51. Of course, Saddam Hussein may permissibly die at the agents’ hands if he chooses to resist the justified
attempt to arrest him.

52, See Doyle, Kant, Liberal Legacies, and Foreign Affairs (Part I), 12 Phil. & Public Aff. 205, 225-232 (1983)
and the discussion in Teson, supra n. 24, at 74-81.



Index 363

intelligence-gathering: See Intelligence and intelligence-gathering
Clark Amendment, 328
Classical view of statesmanship, covert activities as within, 339-342
“Clausewitzian” center of democracy, maintaining public support as, 205, 207, 233, 234, 236, 267,
288, 300, 335-336
Clifford, Clark, view of covert activities as last resort, 331
Cline, Ray, 336
Codevilla, Angelo, 335-336
Coercion

low-intensity conflict, purpose of, 90

purpose of low-intensity conflict, 90
Cold war

Capitalism operating in, 12

contemporary military establishment resulting from, 269-271

covert activities, US initiation of, 336~338

maniacal states: See “Crazy states” factor

moral and cultural US environment following end of, 251-264
Collective security concept

alliances for balance of power, elimination of, 81

international law, just war doctrine complementing, 228

modem warfare, just cause concept, 189

Nicaragua's attempted overthrow of El Salvador, 242
Colleges: See Educational institutions
Communitarian realism, 93-94

critique, 95-96

democratic institutions, defense of, 96-97
Comparative justice criterion, 190-191

Gulf War, defense of sovereignty of Kuwait, 222, 229
Competent authority: See “Right” or competent authority (jus ad bellum)
Complex operations, military's ability to manage

270

Condemnation
‘Operation Just Cause, condemnation by OAS, 176-177, 275
standards of behavior, international expectations of, 59
systemic response of condemnation of aggression, importance of, 27-39
Conduct of war (jus in bello): See Just war theory or tradition
Congo, attempted assassination of Lamumba, 127
Congress of US
covert activities, oversight of: See Covert activities
de facto loss of authority, Congress acting to prevent, 281
Intelligence Authorization Act, passage of, 281
intelligence community, investigation of (1970s), 328
Iran-Contra hearings, use of public funds for covert operations, 281, 325, 328
national security affairs, Congressional challenge to executive control of, 268
nuisance, Congress viewed as, 294-296
opinion polls, US government operating in reaction to, 265-266
“tight” or competent authority, issue of, 158-159, 228
support of: See Public support
‘Consent or permission
history of international law, 58
intervention: Invitation, intervention by
sovereignty under UN Charter, nature of, 56
Consequence-oriented viewpoints, 111
Consistency or inconsistency
pattern of continuing terrorism, justifying cross-border attacks, 232
preemptive bombing strikes, 223-224
Constitutional law
democratic principles: See Democracies and democratic ideals


384 = Index

Social turmoil, distinguished, xv
Soto and Molina, 150
South Korea: See Korea
South Vietnam: See Vietnam
Sovereignty, 23-144
borders of another state, military force used to cross: See Borders or frontiers
criminal organizations, nation’s inability to deal with, 141
defined, 53, 110, 129-130, 133
dictators or tyrannical leaders, removal of, 100-101, 216-217, 319
droit des gens (“sovereign equality”): See Intervention or nonintervention
“egregious” violations of accepted rights, intervention in cases of, 160
frontiers: See Borders or frontiers
history, 53-60
human rights: See Human rights
international law as basis of protection of, 109-114
intervention: See Intervention or nonintervention
inviolate nature of, 259
invitation: See Invitation, intervention by
justification of, 98-100
legal constraints on low-intensity conflict, 25-39, 114
countering low-intensity conflict, 43-82
legitimacy: See Legitimacy
military force used to cross another state’s borders: See Borders or frontiers
panel discussion, 115-144
philosophical analysis, 87-106
critique, 109-114
proportion: See Proportion and proportionality doctrine
request for help: See Invitation, intervention by
Schools of Paris and Salamanca, concept of justice developed in, 174-176.
“sovereign equality” (droit des gens): See Intervention or nonintervention
Soviet Union
breakup of empire, challenges arising from, 161, 254
Catholic clergy’s opposition to Russian revolution, 229
contemporary military establishment resulting from cold war with, 269-271
economic assistance to, xvi-xvii, 80, 262
Finland, hopeless resistance against 1940 USSR invasion, 190
Helsinki human rights affecting downfall of USSR, 37
Leninist tradition of “vanguard of the proletariat,” 187
Operation Urgent Fury, purpose of, 311
“reinvigoration” of UN, effect of, 159-160, 168, 284
Spain, challenging imposition of Spanish rule in new world, 175-176
Special Operations Command, 286-287, 300
Sri Lanka as exception to principle of nonintervention, 185
St. Augustine, 150, 209
St. Louis IX of France, struggle to establish sovereign state, 174-175, 209
St. Thomas Aquinas, 150, 171-172, 174-176, 209
“State of nature” version of realism, 92
‘State-sponsored terrorism: See Terrorism and counterterrorism
Stimson Doctrine, described, 50
Strategic culture (US) in small wars, 265-271
defined, 266
Suares, 150
Subversion, nature of, xv
Success, reasonable prospect of
calculation of proportionality, 189, 229, 236
destabilization, 166
every day use of, importance of, 238
Libya, US 1986 attack on, 178


Coll 15

democracies should resort to defensive unconventional warfare, but under what
circumstances, and with what kinds of limitations, restraints and provisos such
resort should be countenanced.

Unconventional Warfare and International Order.

In theory, the written and unwritten rules and institutions of international
society allow democratic States to defend themselves against unconventional
warfare. The chief framework of international law, the United Nations Charter,
explicitly prohibits the use of force in international relations for aggressive
purposes. The Charter was written with a view to the kinds of “open” wars of
aggression, such as World War II, in which clear aggressors marshall their
conventional military might to conquer their neighbors. In such wars, it is fairly
easy not only to determine who the aggressor is, but also to verify the fact that
an aggressive attack is taking place. The Charter’s framers were, for the most part,
hard-headed statesmen; they included men such as Dean Acheson and John
Foster Dulles with practical experience in foreign affairs and vivid memories of
the 1930s.” Had they surmised that the future course of international politics
would be marked more by violent peace and unconventional warfare than by
invasions of panzer armies, they would have had no trouble seeing that the
proscription on aggressive force should embrace the subtle instrumentalities of
unconventional warfare as well as the traditional means of direct conventional
‘war.

The Charter also was realistic enough to recognize that the prohibition of
force in international relations should not extend to defensive uses of force. This
is the meaning of the celebrated Article 51, which states that “Nothing in the
present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs. . .” It would be wrong to read any
convoluted interpretations into the meaning of self-defense, or to argue that
“self-defense” is an excessively narrow concept that ties the hands of democratic
societies in responding to aggression. Self-defense implies the right to defend
oneself, as well as to inflict whatever degree of force is necessary to deter an
adversary from future attacks.” Article 51 was not intended to serve as a
straightjacket for victims of aggression.

In practice, international law and the United Nations Charter have not proven
very helpful to democracies facing unconventional warfare. Three problems help
to explain why.

The Problem of Inquiry.

By its very nature, unconventional warfare leaves as few trails as possible.
Conclusive, incontrovertible evidence of a party’s guilt is hard to come by. The


366 Index

Definitions: See specific words and phrases
Democide, defined, 25
Democracies and democratic ideals
American history, effect of, 287-288
‘American strategic culture based on, 265
communitarianism, view of, 95
comparative justice criterion: See Comparative justice
covert actions by: See Covert actions
difficulties of, 10-20
engaging totalitarian regimes with rules of, policy of, 36-37
global values, evolution of, 221-222
Jefferson: See Jeffersonian democracy
jus ad bellum basis for intervention, 188
national interest of citizens in places of, 96-98
public support: See Public support
“sight authority” category of jus ad bellum, 150, 158-159
strategic and political advantage of systems of, 317
vulnerability to low-intensity conflict, 120
Democratic Party (US), leadership role of, 254
Descriptive realism, defined, 91
Desert Storm: See Gulf War
Destabilization, application of jus in bello to cases of, 165-166
Deterrence
aggressive regime/deterrence failure strategy, 27-39
counterterrorist tactics as, 197-198
personal-level deterrence, 37-38, 128
preemptive self-defense: See Anticipatory or preemptive self-defense
self-defense against terrorism as including deterrent attacks, 232, 236
US military, deterrence of Soviet threat as main job of, 269
war criminals, deterrent effect of kidnapping of, 102
de Vattell, Emerich, 184
Dictators or tyrannical leaders
See also specific matters
assassination of: See Assassination
historical authority for military force, 158-159
international law as inadequate tool for dealing with, 137-133
judgment as to what constitutes, subjectivity of, 209, 211
maniacal states: See “Crazy states” factor
“reform” intervention: See “Reform” intervention
sovereignty, justification of, 100-101, 216-217, 319
Diplomats and diplomacy
seeking accommodation with “crazy states,” 275-276
treatment of diplomatic missions and pouches, 284
Discrimination principle (jus in bello), 162-163, 193-195, 232, 256, 350
Disinformation, 3
Machiavelli’s “The Prince,” 8-10
Sun Tzu’s “Art of War,” 7
Distrust of government, effect of, 53
Divine Right of Kings, 54
Doolittle, James, 337-338
Double effect doctrine, described, 104
Droit des gens (sovereign equality of States): See Intervention or Non-intervention
Drugs and drug trafficking
armed aggression, equating drug trafficking as, 232, 236
Article 51 of UN Charter, 319
assassination of drug lords, 274-275
cooperation with entities involved in export of, 3
expansion of international law to meet threat of, 81


318 Legal & Moral Constraints on Low-Intensity Conflict

Of course I heard both Admiral LeMoyne and Ken DeGraffenreid say that
those legal constraints really are not that bad; that indeed, it is a good thing for
our health as a polity and for the wisdom of these operations, that they have to
be reviewed through a careful process of scrutiny which includes all kinds of
legislative restraints.

PROF. ECKHARDT: My idea would simply be to ensure that we are not
unnecessarily carrying outdated and impractical baggage, not to sweep away all
restraints.

PROF. COLL: Professor'Turner.

PROF. TURNER: I'd like to make three or four brief points.

Professor Nardin characterized my views in one sentence. I don’t think that
was simplistic, I take it as humor. If anybody did think that was a representation
of my views, I would urge you either to talk to me or re-read my paper. I believe
law is extremely important and I was only thinking about an extreme situation
in which the safety of the nation might be in jeopardy when I suggested that we
might have to argue with the law, and I said even then that we ought to recognize
the harm done by so doing.

Also, I’d like to voice my agreement with the way Professor Teson stressed
the importance of what John Norton Moore calls rule of law engagement, or
promoting democracy in lieu of law. I think it is a tremendously important part
of trying to reduce low-intensity conflict.

I think the idea of working on legislation is worthwhile. I thought Abe Sofaer
had an A-plus presentation except for his treatment of the War Powers Resolu-
tion. He talked about having two months in which to act under the War Powers
Resolution. You’ve got 48 hours to file your report or you're a lawbreaker.
When I testified before the Senate Judiciary Committee a little over a year ago,
Senator Biden told me that, in his view, the War Powers Resolution was only
of academic interest. But I’ll promise you that as soon as the President gets us
into a situation in which bodies start coming home in bags and the public is
unhappy, members of Congress will embrace that law and say “‘it’s not our fault,
get the crooks in the White House who concocted this illegal war.” That’s one
of the laws that we ought to attack. You even get people like Senator George
Mitchell saying it’s unconstitutional, and yet nobody gets rid of it. When there’s
a Mayaguez operation in violation of the resolution, Congress can praise it, and
when Jimmy Carter fails at the Iran rescue, an almost identical operation, they
can call him a crook. I think that the resolution does undermine deterrence and
may well promote low-intensity conflict.

The last point is a broader one that Admiral Harlow raised earlier. I’m not
sure it has gotten as much attention as it warrants, because it will have to be dealt


140 Legal & Moral Constraints on Low-Intensity Conflict

it was that we felt justified that intervention. So I find the notion that a sovereign
State is democratically elected and has a vertical and horizontal legitimacy to be
terrifying as a justification to advance, as a practical matter, for any kind of
intervention, whether it’s an abduction or a rescue or any of those things. I don’t
see how any of us could do that with a straight face, and I could not, as a matter
of conscience. I think it would leave States and political leaders and military
leaders without any parameters that were sufficiently reliable to work with. When
we look at the Nicaragua decision and say, well, it was wrong because A, B, and
C, and we advance something that was right, we are still within the traditional
confines of legal argument. I find the paper philosophically very attractive and
probably a more accurate guide to what’s happening in the world, and what God
willing, should happen in the world over the next couple of decades. Maybe it
is what we should be pressing for politically, and maybe it should even guide
what our political leaders ought to opt for when they decide to use force within
traditional legal constraints. But, I don’t see it as a legal guide that’s final.

PROF. REISMAN: Professor Teson, would you like to comment?

PROF. TESON: Just very briefly.

Well, I’m perfectly pleased with just accepting that you find it attractive
philosophically. That’s what I tried to do, to write a paper on the philosophy of
low-intensity operations compared to State sovereignty and make it attractive.
How it’s attractive and terrifying at the same time is an interesting proposition.

PROF. REISMAN: Terrifyingly attractive.
PROF. TESON: That's right.

PROF. REISMAN: I would like to interject two comments here starting with
Jack McNeill’s observation. The international lawmaking process is very com-
plex. It’s different than the domestic process where we essentially can consult
formal sources; statutes and the judgments that interpret them. A general college
of jurists will usually come up with pretty much the same judgment of what the
communication of the community’s policy is. In the international system you
don’t have a legislature. You have a lawmaking process that’s extremely complex.
It involves many different formal organizations like international courts, the
Security Council, governments interacting and governments engaging in unilat-
eral action. The determination of what law is at any moment, as a result, requires
much more scrutiny, and the responsibility of the international jurist in deciding
on the law, is a much graver one than it is for his domestic counterparts. It’s one
that’s usually presented with the qualification that it is valid as of this moment,
orin the foreseeable future since we deal with a very fluid situation. In the nature


Editors and Contributors 357

United States and Unconventional Conflict, and Unconventional Conflicts in the New
Era: Lessons from Malaya and Vietnam.

Richard H. Shultz is Director of the International Security Studies Program
at the Fletcher School of Law and Diplomacy. He has served extensively as a
consultant on national security affairs to a number of U.S. government agencies
and Congressional committees, and is the author and editor of many books and
articles, including In the Aftermath of War, The Soviet Union and Revolutionary
Warfare, Dezinformatsia, and Power, Principles and Interests: A Reader in World
Politics. During 1994-1995 Dr. Shultz occupied the Olin Distinguished Profes-
sorship of National Security Studies at the United States Military Academy.

Judge Abraham D. Sofaer is the George P. Shultz Distinguished Scholar and
Senior Fellow at the Hoover Institution, Stanford University. As Legal Advisor
to the U.S. Department of State from 1985 to 1990 he led U.S. international
negotiations on a number of sensitive issues such as terrorism and sovereign.
immunity. For over a decade he was Professor of Law at Columbia University
prior to serving as a U.S. District Court Judge in New York. Judge Softer is the
author of War, Foreign Affairs, and Constitutional Powers and numerous articles.

Fernando Teson is Professor of Law at Arizona State University, where he
teaches International Law, International Human Rights and Jurisprudence. He
served as a career diplomat in the Argentine Foreign Service before resigning in
protest over the policies of the military junta. His published works include
Humanitarian Intervention: An Inquiry Into Law and Morality, and numerous articles
on the philosophy of law.

Robert F. Turner is Associate Director, Center for National Security Law at
the University of Virginia Law School and was the Charles H. Stockton Professor
of International Law at the Naval War College during the 1994-95 academic
year. He previously served as the Special Assistant to the Under Secretary of
Defense for Policy, and Principal Assistant Secretary of State for Legislative and
Intergovernmental Affairs. He was also the first President of the United States
Institute of Peace. His published works include Intemational Law and the Brezhnev
Doctrine, Nicaragua v. United States: A Look at the Facts, and Repealing the War
Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy.

Brigadier General Malham M. Wakin, USAF (Ret.) is the Major General
William Lyon Professor of Professional Ethics at the United States Air Force
Academy where he has been a member of the faculty since 1959. His previous
assignment was as Professor and Head of the Department of Philosophy and Fine
Arts and Chairman of the Humanities Division. He holds a Ph.D. in Philosophy


Johnson 163

That is, if both targets are in the same range of possibility, it is morally preferable
to strike at a training camp for terrorists than a barracks complex for uniformed
military, and, similarly, an attack against a drug baron’s private enclave is
preferable to imposing broad sanctions on his country, the burden of which
would fall disproportionately on innocent people.

This rule of thumb also guides the targeting of terrorists when State sponsor-
ship cannot be conclusively proven and a counter-State strike is impractical.
Israeli air strikes against terrorist sanctuaries in Lebanon demonstrate how this
approach can be used, but also reveal its limitations. Principled targeting requires
excellent intelligence, but may still fall short of locating the most deserving sites
for retaliation. Cross-border air strikes often provoke criticism for violating
territorial sovereignty, and may cause harm beyond their intended targets. Yet,
in a struggle where terror and counter-terror reciprocate unceasingly, these
methods observe more often than not the principles of discrimination and
proportionality.

2. The Targeting of Specific Individuals. Pushed to their logical limits,
these two principles may be thought to hold some justification for a strategy of
decapitation and ultimately, in some cases, the targeting of specific individuals.
But, in making moral judgments, logic is not everything, and this is particularly
true when they are based in just war tradition. As a body of moral wisdom
founded in historical experience and reflection, it is less a logical system of rules
than a collection of normative conditions from various sources. There are, in
fact, counter-currents within the tradition on the question whether specific
individuals may be targeted.

On the positive side, the targeting or assassination of individuals guilty of
capital crimes can be argued to be the most discriminate and proportionate action
possible because it avoids the collateral deaths and destruction that accompany
military strikes. A terrorist known to be responsible for a bombing would seem
an appropriate object for discrete retribution. Singling out leaders of terrorist and
narcotics trafficking organizations, without whom their groups could not func-
tion, seems similarly faithful to the logic of discrimination and proportionality.
Capture can be argued to be even more attractive, since it allows targeted
individuals to be tried before a court.

But there are serious negative arguments as well. Least problematic is capturing
an individual to bring him to trial. Yet such action is not entirely clean, because it
may violate both international law and the law of the country where the abduction
occurs, Arguments for targeting individuals are less than clear; arguments against
depend on the attitudes of the international community and the country
involved,

Assassination raises significant additional difficulties, even if we set aside the
fact that it is against United States law. As punishment for crimes committed, it
is an imperfect form of justice because of the absence of fair trial. It also violates


FOREWORD

The International Law Studies “Blue Book” series was initiated by the Naval
‘War College in 1901 to publish essays, treatises and articles that contribute to
the broader understanding of international law. This, the sixty-seventh volume
of that series, is the product of a conference on low-intensity conflict hosted by
the Naval War College in April of 1992.

Sponsored by the Office of the Assistant Secretary of Defense for Special
Operations and Low-Intensity Conflict, the Symposium on Low-Intensity
Conflict brought together scholars, government officials and military officers to
address the legal and moral constraints on the ability of the United States to
engage in low-intensity conflict operations. Symposium participants included
international law scholars, military officers, political scientists and philosophers
uniquely well-suited to explore normative constraints, both legal and moral,
upon a democratic society’s ability to engage in international conflict at the low
end of the spectrum of violence. This volume consists principally of papers
written for and presented at that symposium, as well as panel discussions and
intercessions from the floor. The principal papers focus on low-intensity conflict
and the international legal system, just war doctrine, and American morality and
legal limits of conflict. The result is a balanced analysis of the philosophical and
legal underpinnings of low-intensity conflict. While the opinions expressed in
this volume are those of the individual authors and participants, and not
necessarily those of the Office of the Secretary of Defense, the United States
Navy or the Naval War College, they provide a most valuable contribution to
the study of low-intensity conflict. On behalf of the Secretary of the Navy, the
Chief of Naval Operations, and the Commandant of the Marine Corps, I extend
to the editors, Professor Alberto R. Coll, Major James S. Ord, and Captain
Stephen A. Rose, and the contributing authors of this informative and provoca-
tive work, our gratitude and thanks.

James R. Stark
Rear Admiral, U.S. Navy
President, Naval War College


Coll and Shultz 347

# 1. Covert action should be undertaken only when it fits within the larger context of
American foreign policy objectives and is in consonance with American values and interests,

Covert action should remain as a clandestine instrament or component of
policies that aim at achieving the following objectives: assuring the security and
interests of the U.S. and its democratic allies; keeping off balance and undermin-
ing enemies that threaten our interests, whether directly or indirectly; contribut-
ing to international and regional stability; and finally, selectively promoting
democratic principles in places where they exist in embryonic form or not at all.

Such policies seek to promote a combination of U.S. interests and values. In
each of these instances, to the extent possible, U.S. policy should reflect a
consideration of self-interest and democratic principles. Indeed, the coalescing
of self-interest and values through prudential statesmanship will produce a more
sound theoretical basis for foreign policy activism and intervention. Within this
context, covert action becomes one of several instruments of power and influence
employed to implement policy.

#2 Covert action should be not viewed as either a “last resort ” option or as an “emergency”
action that suspends ordinary standards of morality and prudence.

Covert action should be understood as a normal instrument of statecraft that
is employed, in conjunction with other instruments, to support the interests and
policy objectives of the United States. We can agree with Gelb and Codevilla
that covert action is not beyond the pale of normal international relations. It is
a political instrument to be utilized in the pursuit of policy. Covert action is but
one of the arrows in the quiver of the statesman.

It is not an extraordinary tool or an instrument of last resort to be used only
in dire national security emergencies. In fact, the “last resort” position taken by
Rostow, Vance, Clifford, and Church appears to be flawed for several reasons.
Tt proposes a standard that is ahistorical. From ancient times to the present, covert
action has not been approached in this manner.® Even the history of U.S.
intelligence does not support the “extraordinary” or “last resort” thesis.®! Finally,
from a practical political point of view, to turn to covert action after all else fails
makes little sense. In all likelihood, such “last resort” initiatives will also end in
failure.

While our approach is in the tradition of Clausewitz, it is not synonymous
with the “Doolittle standard”. In the foreseeable international security environ-
ment of the 1990s it appears that no threat can be defined in the ominous terms
of the Doolittle Report. Its prescription to “learn to subvert, sabotage and
destroy our enemies by more clever, more sophisticated and more effective
methods than those used against us” is a wartime standard unlikely to be
applicable to the more fluid circumstances of the 90s.


190 Legal & Moral Constraints on Low-Intensity Conflict

Comparative Justice. The concept of comparative justice has already been
touched upon in the discussion of competent authority. Recourse to military
intervention in collective self-defense should be justified on grounds that the
States or regimes defended deserve to be defended. Moreover, it should be clear
that failure successfully to defend a State or regime will result in an unacceptable
loss of freedom and human rights because the unjust character of the victor
ensures that the people it conquers will be oppressed, as were the citizens of the
Republic of South Vietnam by the Viet Cong and North Vietnamese after the
South fell. As observed above, evaluation of comparative justice is difficult in
revolutionary/counterinsurgency wars. Nevertheless, the just cause of self-
defense or of just revolution must be validated by a finding that the party
supported has the greater comparative justice.

The heart of the just war doctrine is the calculus of proportion of means and
consequences to ends in the light of probability of success. Many situations cry out for
just intervention or successful revolution but, tragically, hold little probability of
success. If this is the case, there should be no resort to armed force, no matter
how just the cause. This general statement should be qualified. There may be
justification for seemingly hopeless resistance by the immediate victims of
aggression and oppression, as was the case with Finland in its fight against the
Soviet Union in 1940. Many revolutionary wars have culminated in victory over
an oppressive regime despite great odds. However, just war doctrine requires a
party contemplating what could be called a war of choice to assess the probability
of success. In the light of this assessment, the probable bad effects of the war are
balanced against the good of achieving the just cause. The bad effects or cost of
the war should be proportionate to the good of the just cause. This assessment
should be made before initiating a just war or revolution. It should then be
repeated at critical stages in the war. What may have seemed proportionate at
the outset may come to appear disproportionate, particularly if assessments of the
probability of success have proved over-optimistic.

Moreover, the calculation of proportionality is a grand strategic calculation of
the overall probable consequences of the war. It goes beyond the war-conduct
level of proportionality required by the principle of military necessity. In classical
terms, the proportion of war-decision law is at the level of raison d’etat as
compared with the war-conduct law level of raison de guerre.

The complexities of the war-decision calculus of proportion in just war
analyses are well illustrated in the case of the conventional high-intensity Persian
Gulf War of 1991. U.S. and allied decision-makers had to estimate not only the
damage and costs of the fighting, but the political, military, economic, social and
environmental consequences of the war.

Although often less obvious and dramatic, the myriad of costs and conse-
quences of low-intensity conflict intervention in civil war may be equally
complex. For example, any U.S. military intervention in Latin America


Panel Discussion 123

Professor Turner drew attention, in a very provocative fashion, to the
emergence of certain new substantive natural law principles. I know that several
speakers over the next sessions are going to be addressing those issues. They may
even want to address them now in the coming discussion.

Professor Turner presented a very interesting historical review of sovereignty
in his paper. He described its emergence with Jean Bodin and Thomas Hobbes
and the transformations it has undergone through several centuries. His analysis
of the radical transformation of sovereignty in this century raised the question
whether the notion has changed to the point where it has major implications for
the legitimate use of force by one State against another. Bob seemed to suggest
that, in some circumstances, the emerging global concerns in favor of democracy
would warrant actions on its behalf that would otherwise be precluded by an
understanding of sovereignty that had not been altered by the equation of political
legitimacy with democratic rule. He discussed the issue of recognition as a tool
and suggested that we use it quite vigorously in favor of democratic governments
and against undemocratic governments.

Professor Turner reminded us of the argument that democratic States don’t
tend to engage in aggressive wars. Professor Farer, by implication, casts certain
doubts on that proposition. Are there still imperial democracies? Democracies
quite intoxicated with their internal democratic processes?

Professor Turner presented a rather textual interpretation of the Charter based
on its historical meaning, but did not speak, at least in the presentation this
morning, about subsequent illumination by the General Assembly. For example,
he neglected to mention the definition of aggression, or the illumination of the
Charter by the International Court of Justice in the Nicaragua case. To what
extent should we address the difference between a textual interpretation of the
Charter and its subsequent illumination?

Finally, Professor Turner raised the issue of assassination. Although he was at
pains to define assassination, I think that many scholars would not extend it to
the targeting of the military and political leadership in the course of war. That
seems to me to be something materially different than targeting a political leader
in peacetime. But the very forceful arguments that he made, I think, will require
us to address whether there have been changes, particularly in the notion of
sovereignty, that make assassination a conceivable option for democratic regimes.
I confess I have great reservations about it. I’m sure that many would like to
discuss it.

Professor Farer’s observations, though limited to 15 minutes, managed to
cover quite a few points in addition to a very skillful review of Professor Turner’s
presentation. He insists that our historical record belies the claim that we are not
interventionists. He does, however, admit that he uses the word “intervention”
to mean any use of force abroad without considering its merits or legality. He
advises us in the future to focus not simply on the techniques used by our


Editors and Contributors 355

University, the University of Virginia, and is the editor and translator ofa widely
acclaimed edition of Aristotle’s Politics (1984). He is also the author of The
Presidency and the Management of National Security.

Jack McNeill is the Senior Deputy General Counsel for International Affairs
and Intelligence, U.S. Department of Defense. In this capacity, he holds the
three-star-equivalent rank of a Deputy Assistant Secretary of Defense and has
responsibility for the legal aspects of international activities of the Defense
Department, including international peacekeeping, overseas base agreements,
status of forces matters, security assistance, humanitarian assistance, disaster relief,
intelligence oversight, law of the sea, law of armed conflict, arms control and
disarmament. He is a graduate of the London School of Economics and Political
Science, University of London (LL.M., 1971; Ph.D., 1974), and was awarded
the Diploma of the Hague Academy of International Law in 1973.

John Norton Moore is the Walter L. Brown Professor of Law and Director of
the Center for National Security Law at the University of Virginia School of
Law. He has served as the Chairman, Board of Directors, the United States
Institute for Peace; as the Director, Graduate Law Program, University of
Virginia; and as Special Counsel for the United States before the International
Court of Justice in the Nicaragua case. His many published works include Law
and the Grenada Mission, The Secret War in Central America, and The Vietnam Debate:
A Fresh Look at the Arguments.

Terry Nardin is Professor of Political Science at the University of Wisconsin-Mil-
waukee. He has been a Rockefeller Foundation Humanities Fellow and is currently
a member of the Board of Directors of the Ethikon Institute where he chairs the
Institute’s Committee on Intersocietal Relations. His published works include Law,
Morality, and the Relations of States, and Traditions of Intemational Ethics.

William V. O’Brien is Professor Emeritus of International Law in the Depart-
ment of Government at Georgetown University. He served as Chairman of
Georgetown’s Institute of World Policy (1956-1974), as Chairman of the
Department of Government. His numerous published works include The Law of
Limited International Conflict, The Conduct of Just and Limited War, U.S. Military
Intervention: Law and Morality, and War and/or Survival.

James S. Ord is a writer and editor residing in Nantucket, Massachusetts. He
was educated in England and holds BA and MA degrees from Cambridge
University. He served as an intelligence officer in the United States Marine Corps
and is currently a Major in the Marine Corps Reserve. Among other civilian
occupations, he has been a John M. Olin Fellow at the Naval War College


Panel Discussion 277

Ramsey is the one who insisted that just war criteria are simply the criteria that
are involved in any morally reflective use of force. They apply to policework or
a military operation or a civilian-run intelligence operation. These criteria have
emerged, as Professor Johnson suggested, from a history of disciplined reflection
on the human condition. If I’m hearing you correctly, you seem to see a
qualitatively different kind of situation in Judge Sofaer’s hypothetical case from
say, the moral analysis of the Gulf War. Why is that?

MR. McNEILL: Well, because the analysis in your book, which I think is very
helpful and instructive on these points, seems to cast the criteria for just war
compliance in very broad terms that might be difficult to apply to a limited
mission. I’m thinking of the requirements for the realization of peace and
estimating the probabilities of success. Now, you may want to undertake a limited
mission even if the odds are greatly against you if you think it could be very
important. Maybe this is a mechanistic approach to the problem, but I’d like to
know if it is warranted.

MR. WEIGEL: Okay, I see what you are saying. The criterion of advancing
the cause of peace is obviously not mechanistic. A wholly justifiable operation
according to these criteria will not necessarily yield peace at the end of the
equation. We know that’s just not the way the world works. But, it is not all
that difficult to demonstrate that the chances for peace in the world are enhanced
by denying Iran or Hezbollah a nuclear weapon. That is not a hard case to make
in my mind. I think what is the harder case to make, given the current state of
reflection within the theological and philosophical worlds that pay some attention
to this stuff, is the question of just cause. As I was saying earlier, we need to figure
out how one carefully reverses this trend towards just cause being defined solely
as overt, cross-border attack. How do we carefully expand that definition to take
account of these new actors and new technologies without making the boun-
daries so elastic that there is no serious constraint in front of us?

RADM HARLOW: I'll take one last comment.

PROF. JOHNSON: I would like to put in two cents worth on this question
and then make a comment that refers to other general issues.

I would say that there is a difference in the applicability of just war reasoning
in this particular case, and I would construe it like this. Paul Ramsey used to
argue that the just war tradition is a guide to statecraft. I agree with that but I
think that it also needs to be said that there are a lot of other guides to statecraft,
and just war tradition is only one among them. Just war tradition has specifically
to do with the question of the use of force in the service of statecraft. I can easily
imagine covert operations in which the use of force is not the issue; intelligence


Coll and Shultz 351

34, 1d.

35, Id. at 132-33,

36, Supra n. 8, at 38,

37. Id, at 39.

38, By a “full service” intelligence agency we mean one that conducts all four basic missions. These include
collection, analysis, counterintelligence, and covert action.

39, Codevilla, Covert Action and Foreign Policy in INTELLIGENCE REQUIREMENTS FOR THE 1980s:
COVERT ACTION 79 (Godson ed. 1981).

40, Id. a¢'79-80.

41. CLAUSEWITZ, ON WAR 75, 605 (Howard and Paret ed. 1976).

42, Id. at 605.

43, SMITH, REALIST THOUGHT FROM WEBER. TO KISSINGER 218, 234 (1988).

44, CLINE, THE CIA: REALITY VS. MYTH 120 (1981).

45, Supra n. 3, at 458,

46, Contained in LEARY, THE CENTRAL INTELLIGENCE AGENCY: HISTORY AND DOCUMENTS
131-33 (1984).

47. ROSITZKE, THE CIA'S SECRET OPERATIONS 150 (1977).

48, Supra n. 3, at 459-462,

49, Supra n, 46, at 143-145,

50, Gaddis, Morality and the Cold Warin ETHICS AND INTERNATIONAL RELATIONS 118 (Thompson.
ed, 1985).

51. Supra n. 16, at 205.

52, Supra n. 3, at 457-472,

53, Poelvoorde, Statesmanship and American Foreign Policy, in POWER, PRINCIPLES, AND INTERESTS 216
(Salmon, O'Leary and Schultz eds. 1985),

54, ARISTOTLE, ETHICS (Thomson trans. 1955).

55, Supra n, 53, at 216,

56, Coll, Normative Prudence as a Tradition of Statecraft, 5 Ethics and International Affairs 33 (1991).

57. Id. at 2.

58, Id. at 4.

59, Supra n. 54, at 209; see also LORD, ARISTOTLE, HISTORY OF POLITICAL PHILOSOPHY 118-154
(Strauss and Cropsey eds. 1987).

60. Id, at 215.

61. Id, at 222,

62, Id, at 222-23,

63, ARISTOTLE, THE POLITICS 269 (Sinclair trans. 1962).

64, Id, at 148-149,

65. Id.

66, For a discussion of this point see Sears, The Classical Understanding of Intemational Politics, in POWER,
PRINCIPLES, AND INTERESTS 81-98 (Salmon, O'Leary and Schultz eds. 1985).

67. THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR 147 (Wamer ed. 1954).

68, Id, at 145-148.

69, Supra n, 66, at 91.

70, Supra n. 67, at 145-148,

71, Id, at 81,

72, Id, at 80-81.

73, Diamond, Democracy and the Federalists: A Reconsideration of the Framers Intent, 59 American Political Science
Review (March, 1959),

74, 1d, at 6-7.

‘75. Tarcov, Principle and Prudence in Foreign Policy: The Founders’ Perspective, The Public Interest 48 (Summer
1984),

76, SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (4th ed.
1957); ROSSITER, THE AMERICAN PRESIDENCY (1960); Tarcor, The Federalists and the Anti-Federalists on
Foreign Policy, Teaching Political Science (Fall 1986).

71. THE FEDERALIST PAPERS 177.

78, Id, at 355.

79. Id, at 356.

80. Bozeman, Covert Action and Foreign Policy, in INTELLIGENCE REQUIREMENTS FOR THE 1980s:
COVERT ACTION (Godson ed. 1981).

81, AMERINGER, U.S. FOREIGN INTELLIGENCE: THE SECRET SIDE OF AMERICAN HISTORY
(1990).



Panel Discussion 131

we label human rights, realism, and so forth are really, in my view, little more
than names for far richer and complex ethical systems, actual living moralities
that are embedded in practice, used in making decisions and reconstituted by
those decisions. And, moral tradition is an ongoing thing. International law has
some stability, but it is not immutable. What the philosopher can do is to identify
and dissect these ethical traditions, and try to articulate the principles underlying
them. This is a large part of contemporary philosophical practice and can be very
helpful. The worst thing a philosopher can do, in my judgment, is to fool himself
into thinking that his constructs are an improved version of, and therefore a
practical substitute for, the moral traditions they interpret, and to offer those
constructs as a guide to practice.

Imagine this room as Plato’s cave. You are prisoners in the cave. You are
chained to your desks. You are looking at the screen at the front of the room
and the staff of the Naval War College is in the back with a projector, playing
images on it. You live this way indefinitely, and after a while you become
connoisseurs of what's going on the screen. You can correlate movements and
so forth. We philosophers are not chained. We can face you. You can’t turn
around, We see what’s really going on. Furthermore, we can go outside this
room. We know what's out there in the bright world of truth, illuminated by
the sun. When we come back, we can tell you about all of that, and you may be
impressed, and you may be amused. But, if we try to give you advice about what
you know best, which is how to predict the motions of the shadows on the
screen, you will know that we’re talking out of turn; that we have nothing to
say about that level of practice because the kinds of questions that we’re asking,
the kinds of things that we’re saying, are in a different realm altogether.

Certainly, the philosopher’s task is critical , but I would suggest that we need
to criticize the ease with which ostensibly moral views are used to undercut the
kind of common sense, shadow wisdom if you want, not truth, but shadow
wisdom of international diplomatic law and practice. In my opinion, despite all
of its deficiencies, this shadow wisdom is nevertheless a far more reliable guide
to military conduct, and therefore, by implication, to the conduct of low-inten-
sity operations, than the abstractions of the philosopher. When I said in the
beginning that I believe international law is itself an ethic, I did not mean that it
can’t be criticized from the standpoint of the national interest, or from the
standpoint of the noble ideals of justice and human rights that Professor Teson
enunciates. I wanted instead to emphasize that those critiques can not do more
than provide a basis for the reform of our common traditions, and here I mean
not simply our common traditions as officials or citizens of the United States,
but also our common traditions as members of what is now a very ancient society
that, despite all the talk about a new order, shows promise of persisting into the
fature.


Panel Discussion 229

government. That’s going to be a very hard sell, I think, including in the United
States,

And then there’s another claimant for the status of just cause and this gets to
one of Sam Sarkesian’s questions; the status of just revolution. Well, here I have
to disagree entirely with Father Winters. I don’t think there’s a serious book in
existence of contemporary just war doctrine on just revolution. If there is, I’d
like to see it. There are a lot of reasons for that. One of them is that at least in
the Catholic tradition, fora long, long time, revolution meant two things: French
Revolution and Russian Revolution. They were bad for the church and bad for
the people. So, in Catholic social ethics, for a long time the textbooks all said
avoid it, avoid it, find some nonviolent means and the most extreme application
of that, I’m sorry to say, was in Ireland where the clergy consistently opposed
revolution. So, I think there’s a whole new field for a study in two parts. On the
one hand about just revolution, which would be relevant to our situation if we
were to be assisting revolutionaries as we were with the Contras. Alternatively,
in the case of counterinsurgency, how one makes a judgment call as to whether
it’s just to intervene against somebody else’s revolution.

Briefly, the issue of comparative justice, which is part of the just war analysis,
presents the same problem that we have with competent authority. We saw this
recently in the Gulf. Kuwait is not a Jeffersonian democracy, but it’s better than
Traq. That’s about the best you can say. You’re not going to get a lot of clear cut
cases like the comparative justice of the NATO nations and the Warsaw Pact
nations. This was an easy one, but most of your potential interventions, I’m
afraid, will have to be made in very muddy circumstances.

The core of the just war decision is the calculus of proportion which balances
the means required against the probability of success, Here you see, I think that
there are resources in just war doctrine that international law simply can’t muster
because it is mechanical. It says go, no go. The calculus of proportion is an
extraordinarily comprehensive, challenging, difficult exercise which requires that
one attempt to assess all of the ramifications of what's likely to happen. It requires
a great deal of speculation. Think back to the fall of 1990. I don’t know about
you, but I didn’t meet anybody who had a clear understanding of what we should
do in the Gulf, because the intangibles were just floating in every direction. How
would the balance of power be affected? What was going to be the result in the
Islamic world? How would the American people react? It went on and on and
on. I have a great respect for the policymakers who survived that period while
making very difficult judgements, which I happened to agree with. Whatever
position you took, whether with the administration or with somebody like
Senator Nunn, the Gulf War demonstrated that the calculus of proportion is an
enormously difficult undertaking and I think that just war doctrine can help us
to think through it.


298 Legal & Moral Constraints on Low-Intensity Conflict

What troubles me about the way we have handled low-intensity conflict,
particularly covert operations of a nonmilitary sort, is that it’s not taken seriously
into account that we are violating the laws of a foreign State. We are taking
foreign law into account more filly than elsewhere when we analyze abduction
proposals. When you go into a foreign country intending to grab someone, the
ways in which you violate domestic laws are numerous and it’s a very risky
proposition. You’re talking about a kidnapping. You may well kill someone in
the process of the abduction. I just think that we ought to be more sensitive
about the laws of foreign countries when we design these operations.

PROF. REISMAN: Ken mised a point on which Abe had touched and that
is the notion that where action is appropriate, it prcbably would be most effective
if it were earlier rather than later, when it would probably be of no value.
Bruce talked about preemptive actions, which I think is a very extreme
example of the observation Ken was making. The question then. came up
whether there isn’t, in a democracy, a preference for economic over military
types of actions without regard to their consequences. I was struck by Abe’s
example of the destruction in 1981 of the Iraqi reactor, which could have posed
an irreparable injury to Israel had it not been preempted. This seems characteristic
of the nature of the threats that are likely to be posed in the beginning of the
next century, the enormity of the damage that some of them can cause and the
need for responding to them earlier rather than later. Do you or Abe see methods
for adjusting democratic procedures so that without damaging the fabric of our
political society, we can respond appropriately at the earlier rather than later

stage?

MR. deGRAFFENREID: There’s a kind of inversion going on in thinking
about the range of things that we loosely call low-intensity. We tend to single
out assassinations, coups, the most extreme military examples of low-intensity
conflict. Ideally, the use of force is an element in a range of low-intensity
instruments that should be integrated. Other than the fact that lives are involved,
it should not make a very particular moral difference. As a practical matter it
should be integrated. The U.S. Government doesn’t do that well. When all the
focus is on the use of force, that separates it from the other elements of
low-intensity conflict in a way that winds up being very dysfunctional. This
works against the measured use of force for a limited end. I’m not talking about
the more extreme examples, but the daily stuff of low-intensity conflict, which
in many cases only involves a small measure of force, sometimes non-lethal
operations that are nonetheless military. The fact that we have such a difficult
time with the moral dimensions of lethal force tends to prejudice the integration
of these things. Right now, the exclusive focus on extreme uses of force prevents


380 Index

Practices and expectations
international law, norm created under, 239
Security Council resolutions, international law limited to, 240
Pragmatic argument for covert activities, 336
Preemptive self-defense: See Anticipatory or preemptive self-defense
President of US
See also specific matters
limited executive authority to protect American lives, 280
national security affairs, Congressional challenge to control of, 268
opinion polls, US government operating in reaction to, 265-266
“right” or competent authority (jus ad bellum), 228, 280
‘War Powers Resolution, refusal to accept principle of, 187
Press: See News media
Preventive/attrition counterterror attacks, 197-198, 231-232
“(The) Prince” by Machiavelli, 8-10
Proliferation of weapons of mass destruction, ethical considerations, 178,
219-220
Proof: See Evidence
Propaganda, covert activities in, 325-326
Proportion and proportionality doctrine (just war theory)
comparative justice concept, 190
contemporary means of war as violation of, 150
covert activities, 350
drugs and drug trafficking, 200
Gulf war: See Gulf war
importance of, 38
international law, guidelines under, 133
just cause, 150, 189
‘Nicaraguan conflict, 243
Panama's strategic value to US, 275
“right authority” and “just cause,” 159
scorched earth policy applied to drug trade, 199
self-defense, right to, 66, 68-69, 226-227
sovereignty
effect of, 104-105
use of military force affected by, 159
specific issues in observing, 162-163
state-sponsored terrorism, ethical considerations in response to, 177-178
success, calculation of proportionality based on, 189, 229, 236
‘Vietnam, 275
Protracted conflicts, criticism of conduct of, 268-269
Psychological/political warfare as low-intensity conflict strategy, 52-53
Public support
“Clausewitzian” center of democracy, maintaining public support as, 205,
207, 233, 234, 236, 267, 288, 300, 335-336
multilateral approaches to conflict as enlisting, 48~49, 168
necessity of public support in democracy, 52-53, 159, 167-168,
260, 301
opinion polls, US government operating in reaction to, 265-266
policy-making, necessity for public debate, 278
unipolarity in post-cold war era, need for explanation of, 255-256
Punishment of wrongdoer, just war tradition as including, 212, 257
Purposes of UN stated in Article 1(1) of UN Charter, 61

Q

Qadhafi: See Libya


Panel Discussion 137

munities at the time. Now, when you propose a separate higher order frame of
moral reference as the ultimate arbiter of these relations, it leaves me uncertain
as to where the distinction may be found between the results you would achieve
by applying your criteria and the results that would be achieved and the things
that ought to be done, when applying the perceived legal criteria. When does
that distinction arise and what should one do about it? Are you trying to identify
the way in which the law should be moving? Do you mean that a discrepancy
between the law and your principles should be cause for its modification? Should
it be considered grounds for unilateral initiatives, as proposed by Michael
Reisman, in order to see whether we can shape a new consensus? If you think
that the global consensus represents too low a common denominator, would you
be prepared to assert our peculiar moral traditions over others that conflict with
it? Or perhaps you mean that philosophy and morality are a frame of reference
for extreme cases, such as euthanasia. Let’s not pretend it’s law, let’s recognize
the law takes care of the normal case, it doesn’t take care of the extreme case.
‘When we're faced with the extreme case, we need some backup, some norms
of mitigation, as it were. And so, I’d like to see just which of these possible
interpretations you think would be appropriate.

PROF, TESON: Let me say, Tom, that I was vastly relieved when I was
commissioned to write this paper, because for the first time in my career, I was
freed from the cave and could engage in moral analysis without being concerned
with international law. My background is that of an international lawyer, so the
fact that I view this process as a philosophical exercise to begin with is not
unimportant. Whether or not current international law reflects that is a separate
question, and I think it’s a very complicated one. I would say that if I had to
choose one of your attempts to characterize what I am doing, I would take the
second one. My system is admittedly a framework for changing the law if the
Jaw doesn’t coincide with it.

I have two problems with Terry Nardin’s critique, although it was very useful.
I have to say in passing, that the defense of the State system in his 1983 book is
probably the most lucid that I’ve come across; it’s an excellent work. So, I’m
very flattered that he took the time to read my paper and criticize it from the
standpoint of a defense of the State system. One problem is that international law
may have some objectionable features. That is possible from the standpoint of
what's right and wrong, if you believe there’s such a thing as right and wrong. I
happen to believe, many people will disagree with me, that one problem with
the international law is its excessive deference to dictators. The fact that tyrants
of all sorts are protected and granted the status of legitimate governments is to
me, a moral problem with international law. In that sense, international law is
deeply flawed. You cannot just take the view that because a tyrannical regime is
there it has to be okay. Would you have said of the ancient regime in France in


Roundtable Discussion 314

the invasion of Grenada. I would expect Professor Nardin to have decided views
on the ethical and political wisdom of that operation because he just finished a
case study of it. In my opinion, at least from the outside at that time, the invasion
of Grenada was not driven principally by our concern for the lives of the medical
students on the island. In fact, we had trouble figuring out who they were when.
we landed, and if the Cubans had been really nasty, they could have slaughtered
the students before we got to them. In my view, what really drove Operation.
Urgent Fury was a decision by the Reagan administration that this was an
opportunity to send a very strong signal to Cuba, to Nicaragua, to the Soviet
Union, and to a few other adversaries around the world about the determination
of the United States to defend its global interests. The justification about the
safety of the students was in truth, I believe, a much less influential concern.

The problem that these sorts of national security decisions raise for us — and
there are many others like the ones I just mentioned — is to determine what
weight moral and legal reasoning actually bear in relation to the pragmatic
considerations, I will leave this question open for a broader discussion. The case
can still be made that even decisions based on pragmatic, strategic considerations
can be morally and legally justified. But, we need to acknowledge that rather
straightforwardly and think about what that may imply.

Let me raise a third question for you to try to answer. Are there any points of
significant consensus among us after a day and a half of deliberations, and if so,
what might they be? My sense is that there is a great deal of disagreement; there
may also be some points of consensus, and I hope that we can make them clear.
I think we're in agreement that, in however indirect a fashion, legal, moral and
other constraints related to our strategic political culture do limit the way in
which we think about and implement low-intensity conflict policy. And, I think
we also share the perception that notions of morality derived from just war
thought, as Professor Johnson argued strongly in his paper, actually have a very
close relationship to common morality and shape American thinking about what
is right and proper to do.

Let me close with a couple of challenges. Have we really wrestled with the
relationship of low-intensity conflict in the jus in bello? Are we prepared to say
that low-intensity conflicts are by their very nature inherently more difficult to
conduct in accordance with just war doctrine than other kinds of conflict? Is
there something different about them, or are we comfortable with saying that
they are no more problematic to subject to just war criteria than conventional
conflict? I’m certain we would be able to make that case for nuclear or
high-intensity conflict. What are the distinctions here?

Finally, how comfortable are we with the possibilities opened up by the
United Nations? How far are we prepared to go in strengthening the United
Nations as a means of dealing with these conflicts in a multilateral way? I believe,
of course, that the United Nations is not the only vehicle for us to act


index 371

extraterritorial jurisdiction: See Long arm statutes claiming
foreign legal experts, respect for US theories exhibited by, 244
human rights approach to, 96-98.
interpretation or construction, 138, 213, 216
Jeffersonian democratic influences, 4448
‘just war tradition: See Just war theory or tradition
military force, issues in decision to use, 160
morality of, absence of, 241
nonintervention principle: See Intervention or nonintervention
practices and expectations: See Practices and expectations
recognition of state: See Recognition by international community
sovereignty, matters relating to: See Sovereignty
treaties: See Treaties
UN Charter: See Charter of United Nations
unconventional warfare as without ambit of, 4
‘Weinberger Doctrine, absence of reference to law in, 234-235
Interpretation or construction
armed attack, 64-66, 69, 182
Article 2 of UN Charter, 316-317
Article 2(4) of UN Charter, 61, 64-69
interpretation, 182~183
Article 51 of UN Charter, 33-34, 182, 226
inconsistency: See Consistency or inconsistency
international law as subject to, 138, 213, 216
just war tradition, allowance of force under, 213
realism, 110-113
self-defense: See Self-defense
Intervention or nonintervention
‘See also specific matters
droit des gens or “sovereign equality” principle
‘De Vattel, Emerich, 184
droit des gens (““sovercign equality”) principle in UN Charter, 56-58, 173
“egregious” violations of accepted rights, sovereignty affecting interventionary actions in cases of, 160
Grenada: See Grenada, US intervention in
history of US role in, 117-118, 124
humanitarian intervention: See Humanitarian intervention
insurgency: See Insurgency or counterinsurgency
invitation to effect: See Invitation, intervention by
isolationist vs, internationalist debate, 253~256, 264
Israel, strategy off See Israel
just war theory: See Just war theory or tradition
nonintervention principle: See Article 2(4) of UN Charter
Panamanian intervention by US (1989) as “‘special case,” 50
post-Cold War world, effect of, 168
“reform” intervention: See “Reform” intervention
request for: Sce Invitation, intervention by
Schools of Paris and Salamanca, concept of justice developed in, 174-176
“Intimations of tradition,” communitarian realism, 93-96
Invitation, intervention by
criteria under jus ad bellum for, 26, 188
drug trafficking, international aw requirements, 26, 200
Gulf war, legitimacy of undemocratic government requesting assistance, 222
Nicaragua's attempt to overthrow El Salvadoran government, 242
Irn
history of US involvement and intervention, 118
Salman Rushdie, assassination order placed on, 127
Iran-Contra hearings, examination of government role in covert operations, 281, 325, 328
Inq


30 Legal & Moral Constraints on Low-intensity Conflict

aggressor, if not more, for a defensive response against an aggressive attack, then
the real-world legal system that sends the signal is simply irrelevant as a factor in
‘war avoidance; or even worse, it may encourage conflict. This point is so
important, and so pervasively misunderstood in much of the legal literature, that
I will repeat it with emphasis: It is largely the difference between the treatment of
aggression and the treatment of defense that measures the effectiveness of the legal system
in contributing to the deterrence of aggression—not the degree to which the use of force is
outlawed. Moreover, this effect may be magnified when—as the model posits—
the non-democratic aggressor is little affected by internal criticism of “legal
violations,” but the responding democratic nation, precisely because it is demo-
cratic, may be substantially inhibited or deterred by such a charge of illegality.

Low-intensity conflict, it should be noted, seems also to fit the “new thinking”
conflict model of an aggressive regime/deterrence failure synergy. In major part,
although not exclusively, low-intensity conflict is simply a range of actions—
from sporadic terrorism through sustained insurgency—pursued by insurgent
groups or repressive regimes to attain their aggressive aims. Perhaps the major
difference between low-intensity conflict and conventional warfare is that the
ambiguity and low visibility of low-intensity attack escalate the effect in the
“conventional” model of ignoring the attack and largely focusing the systemic
response against the defensive response to the aggressive attack. Only when the
aggression is as flagrant as the armored invasion of Kuwait in August 1990—the
first effort ever made to aggressively swallow a Member state of the United
Nations—does the system clearly condemn the attack and support the defense,
and even then the action was opposed by many. Suppose that Iraq had sought
the same result through support ofan insurgency within Kuwait; would the world
community have responded as it did? Would it have responded at all? In this
connection it might be noted that one of the “lessons” Libyan leader Moammar
Qadhafi seems to have learned from the Gulf conflict is that Iraq should have
pursued its objective by an indirect warfare or guerilla strategy. In a recent address
to the Benghazi Military Academy, he told the graduates: “Had it [Iraq] sent
guerrillas there, they would have occupied the whole region.”>

lll. The Role of Law in Aggression and Deterrence:
ACase of Auto-Immune Disease as Applied to the
Spectrum of Low-Intensity Aggression

This paper should not mistakenly be read as an attack against international
law. I believe that, as intended under the United Nations Charter, a system of
law that vigorously condemns aggressive attack, whether overt or covert, and
mobilizes in important ways that may predictably be known in advance to support
the defensive response against aggression, is of the utmost importance in promot-
ing a more peaceful world. Indeed, I would assert that we greatly underestimate


Panel Discussion 231

observes that, “It would be improper practice to secure advantage of the enemy
by deliberate lying or misleading conduct which involves a bréach of faith, or
when there is a moral obligation to speak the truth.” Examples given are “to
feign surrender so as to secure an advantage over the opposing belligerent” and
“to broadcast to the enemy that an armistice had been agreed upon when such.
is not the case.” These are “treacherous” acts.

The discussion in 27-10 condones all manner of spying and subversion of
enemy forces. To the two examples of perfidy or treachery could be added such.
possibilities in low-intensity conflict as luring enemies to parley with assurances
of security and then capturing or killing them, or, more broadly, promising
amnesty to those who surrendered their arms and then imprisoning them or
killing them.

In conclusion, I would consider FM 27-10's treatment of deception in war
conduct law to be acceptable to just war doctrine, having noted that the subject
has apparently not elicited treatment in the major contemporary just war texts.
For all I know, there may be all sorts of things in the older, classic literature.

As for assassination, which was discussed a number of times today, I share
many of Jim Johnson’s misgivings about it. I would want to limit it to a wartime
situation or something equivalent to it and limit its target to people who had a
strong military identification. Often, a dictator will in fact be a commander of
the armed forces. I think ifhis titles were only nominal, I would be more worried
about it. I think an acceptable example, which is very controversial, would be
the Israeli assassination of Abu Jihad in 1988. This man was a principal organizer
of terrorist attacks, including mass attacks, in 1978 near Tel Aviv. I think you
could in a very real sense say that in the war waged by the PLO against Israel,
he was an active military commander and a legitimate military target.

The question of counterterror has also been mentioned a number of times,
particularly with respect to the raid on Libya. Now it happens I just have a book
out which I would like to plug, called Law and Morality in Israel’s War with the
PLO, the result of ten years of arduous work including the very unpleasant
experience of reading all the Security Council debates on Israeli reprisal actions.
I come away from that work with some strong feelings on the question of
counterterror. I’ll outline the essence of my argument very briefly. If one insists
ona narrow reading of self-defense, which is what the Security Council did over
and over and over again, that means only that a policeman or soldier can be
stationed every place where somebody might commit a terrorist attack. That’s
not very practical. There is no way by passive defense that a State can defend
itself against terrorism. So the Israelis very early on got the idea of what I call a
preventive attrition approach; after spotting a pattern of terrorism, they would
attack its sources. They don’t wait for the terrorists to show up because they have
no idea when they will strike. So the Israelis attack the terrorists where they live,
in Jordan or Lebanon. Of course, this raises the question of sovereignty. I would


192 Legal & Moral Constraints on Low-Intensity Conflict

force and military intervention are applied. This discussion has undertaken to
demonstrate that the just war guidelines for war-decision are much more
comprehensive and realistic. They call for a full analysis of the situation and a
rigorous decision process in which probable means and consequences are
balanced against probable outcomes. After making such an analysis, decision-
makers may be in a position to justify recourse to war as “reasonable,” not simply
as “legal.” Or, it may appear that what is “legally permissible” is not “reasonable.”

It should be clear that the war-decision law of just war doctrine respects but
is not intimidated by the international law hiererchy of values dominated by
“sovereignty,” “self-determination,” “non-intervention” and “war-avoidance.”
Justice and humanity may in some situations override those values. Injustice and
inhumanity may flourish behind the shield of “sovereignty” and “non-interven-
tion.” “Self-determination” may mean bloody repression in a Darwinian process.
Given the destructiveness of virtually all modern forms of war there is good
reason to give high priority to its avoidance, but that priority is not total and
perennial. In a world in which established States are breaking up, often with
chaotic and bloody consequences, there are good reasons to give proper respect
to sovereignty. However, there are some situations that can only be alleviated
by some form of armed intervention and coercion and, in such cases, war-
avoidance must yield to other priorities such as justice and protection of human
rights.

To be sure, challenging the priorities of modern international law may be
risky in a heterogeneous world riven by conflict. There are dangers of self-decep-
tion and hypocrisy. But, if the just war concept of right intention is taken
seriously, those who supplement a primitive international law with the resources
of just war doctrine may be better able to deal with the difficult decision to have
recourse to armed force.

Just War Doctrine Applied — War Concluct Law (Jus In Bello)

Even if the decision-maker has thoroughly considered and satisfied the criteria
of the war-decision law of just war doctrine and concluded that recourse to arms
is justified, he must still confront the war-conduct law of just war, which consists
primarily of the principles of proportion and discrimination. Just war doctrine
strongly supports the international law condemnation of genocide, which is a
positive law reflection of natural law on which just war is in large measure based 8
Modern just war doctrine tends not to go much beyond these basic principles,
leaving the detailed normative regulation of war to international war-conduct
law.

Proportion. The war-conduct principle of proportion is the heart of the prin-
ciple of military necessity, recognized in all U.S. military manuals. It requires


210 Legal & Moral Constraints on Low-Intensity Conflict

dominion of Spain over its American colonies, it is clearly the case that just war
doctrine insists that political legitimacy be culture specific. There are, of course,
some things that would be unjust anywhere, but for the most part, political
legitimacy is culture specific and, therefore, it is not possible to claim the existence
ofa universal standard of legitimacy that must be met before a regime is entitled
to international respect for its sovereignty. I believe this is the position of these
authors.

I would like to mention just two cases, with one of which I am very familiar. We
all know about the other through reading the newspapers. The first is Operation
Just Cause, which I think a lot of people here have problems with for one reason
or another. I happened to be in Panama lecturing to the Southern Command
leadership a little bit before the operation, actually, in 1986, so I have some feel for
the area. Naturally, I followed the invasion with a certain amount of interest, Even
after the event, I had some students who were Panamanians, so I kept asking them.
what was going on. They brought me a lot of papers presented in the Congress to
the House Subcommittee on Western Hemisphere Affairs and I quote in my paper
from a statement by Eva Loser who works for CSIS in Washington. She said that
in the Panamanian press, there is general agreement that General Noriega had been
replaced by general discontent. Just Cause looked like good conduct and as if it was
effective, but now what’s going on in Panama? Nothing is going on in Panama. I
mention that because it is entirely possible that reform intervention, say intervention
against dictators which, from our point of view looks quite sound, may not work
out as well as we might expect. I would argue that’s wholly explicable philosophi-
cally, and wholly predictable historically.

Let me mention the other case, which I am studying currently for a book. This
is the case of the Kennedy Administration’s remcval of the government of South
Vietnam in 1963. I have become very interested in this question, and have, in fact,
interviewed all the survivors of the Kennedy Administration, with the exception of
former Secretary of Defense Robert McNamara who didn’t answer his mail and
former Special Counsel to the President Theodore Sorensen who said no.

The United States’ removal of the President of South Vietnam in 1963, was,
and I have this on very good authority, microraanaged by President Kennedy
from the beginning to the end. It was a classic case of reform intervention. Ngo
Dinh Diem was removed precisely because he was a dictator. The Kennedy
Administration was wholly persuaded that if it could only remove Diem,
democracy would flourish. We moved, therefore, between August 24th when
the first cable went out directing the embassy in Saigon to run a coup, and
November 1st when it actually occurred. The United States Government had
exceptionally comprehensive information, because Kennedy was himself deter-
mined to have the facts. Even in the face of very clear warnings that after Diem
there would be chaos, we set out to reform the government of South Vietnam
by decapitating it. What happened? Ngo Dinh Diem, as was predicted, was




224 Legal & Moral Constraints on Low-Intensity Conflict

taken for granted as being accurate, not just accurate morally. I mean, no one
ever assumed that it was morally wrong for Israel to bomb the reactor. I certainly
assumed that Iraq was preparing to manufacture a bomb that they might use
against Israel, but I also thought it was a sound legal rule that we had stated in
the U.N. And, I couldn’t understand why we were walking away from it as
though we had suddenly discovered after all, here is this evil man, and we didn’t
know all along that he would possibly use nuclear weapons against a country. I
thought the answer from a technical point of view in Israel’s case was that Saddam
Hussein never withdrew his declaration of war, a fact that we didn’t make much
of at the time.

Beyond that issue there was the question of an appropriate remedy for Israel,
in light ofits surgical strike against that reactor, which was a discrete action clearly
driven by concern for its own survival. The experience of handing down perhaps
thousands of sentences as a judge in a district court convinced me that different
cases involving violations of the same law must be decided according to their
respective merits. You will act differently when an Eichmann is seized in
Argentina than when someone else is seized there, but you don’t necessarily want
to change the rule about State sovereignty and territorial integrity because of
that. We don’t have an international law of remedies yet. I think we’re on the
‘way to it. Michael Reisman certainly has the kind of sensitive analysis that forces
us to look for a remedy appropriately tailored to all the circumstances. I find
myself very comfortable with the traditional rules, but I think that moral
neutrality must necessarily accommodate our reactions to different circum-
stances. We’re comfortable with that flexibility, especially with respect to the
constraints placed upon the United States by the veto power in the Security
Council. But there’s no getting away from the fact that flexibility is the rightful
prerogative of every State by virtue of the heterogenous nature of human
existence.

PROF. COLL: Thank you.

We have had a discussion that has been so rich that I was hesitant to stop it,
so we're running a little bit late, but I would like to ask Professor Johnson and
Professor Winters if they have any concluding comments, and then we will take
a short break before coming back to Bill O’Brien and Bill Eckardt.

PROF. JOHNSON: I'll just say one thing. I have really been delighted by this
discussion about democracy which came at me totally unprepared. I had not
anticipated that we would get into this. I didn’t talk about it in my paper, and I
sort of wondered why we were spending so much time on it. But, as I listened
to all of you talking about it, a thought came to mind. These principles that I
was discussing have developed over time under a great variety of political
conditions. But I found myself asking what kind of political conditions in the




310 Legal & Moral Constraints on Low-Intensity Conflict

consistent, adequate ethical reflection at the heart of the policymaking process,
Therefore, we often make decisions on the spur of the moment and on the basis
of practical considerations, without the illumination of ethical reflection. I think
that we want to ask ourselves whether that’s really true. Do we agree with Ken’s
description of the policy process and, if so, is it a good thing or is it something
we need to worry about? I sense from Professor Johnson’s intervention earlier
today, that we should be worried. I share that concern and I wonder how the
problem can be addressed. Admittedly, ethical reflection is not something that
is taught mechanically and we need to see how we can institutionalize it with a
great deal of rigor. But, there are some measures that could be helpful. I’m very
encouraged, for example, by the tremendous work that Jim Barry, at the CIA,
is doing. He heads a small think tank, within the CIA, that addresses ethical issues
and that takes very seriously the mandate, both at the level of policymaking and
at the level of professional conduct, to promote a greater degree of ethical
reflection within the Agency. This could be one direction for our efforts, and
you may want to offer some insights into that question.

The second point that I wish to raise was put to me very provocatively
yesterday by Chris Lamb. He said we need to come to terms with the fact that
key decision makers in most crises are much more influenced by their broad
national security responsibilities and the great global interests ofthe United States
than they are by the moral issues of a particular emergency. An example of this,
with which Chris is very familiar because he has written the best book about it,
is the Mayaguez crisis. During the decision-making process in that affair, the
American people were somehow led to believe that the real issue at stake was
whether we should risk the lives of American soldiers in order to rescue the ship
and its crew. But Chris’s book very persuasively makes the case that the decision
had little to do with the ethical imperative of saving the lives of American
servicemen or even asserting our legal rights over an American ship. The decision
was driven by Henry Kissinger’s and President Ford’s consideration that the
United States was, at that point, in a very precarious position. The Mayaguez
crisis took place in May of 1975. The United States had just suffered the
humiliating loss of South Vietnam to the North Vietnamese. There were grave
intelligence reports indicating that the North Koreans were contemplating a
move against the South. Our adversaries in other parts of the world, including
the then mighty Soviet Union, sensed that the United States might be retreating
from its international responsibilities. From Kissinger’s viewpoint, the seizure of
the Mayaguez presented an opportunity to send a message to the North Koreans
and other people around the world about our resolve and that’s what drove the
decision to recapture it. The concerns about the crew and the ship were very
secondary.

Now thatis one example of the way pragmatic goals can outweigh moral concerns
in national security decision-making and I think that we could cite others, including


104 Legal & Moral Constraints on Low-Intensity Conflict

otherwise justified operation. The most popular doctrine to justify killing people
in a just war (and the same considerations apply to justified low-intensity
operations) is the doctrine of double effect, which is in part recognized by present
international law.“ According to this doctrine, incidental loss of lives or property
is not prohibited if the intent of the just warrior was to obtain a military advantage,
not fo victimize innocents, even if he could foresee that innocent people would
die.

The doctrine of double effect, however, has been recently challenged by
Judith J. Thompson. Her critique is skeptical of the moral relevance of the
essential distinction between specific intent to kill bystanders and mere foresight
that bystanders will die. In her view, if there is any justification for the incidental
loss of lives of bystanders in a war, it must depend on the justice of the cause -
on the larger purpose of the operation.“” Professor Thompson, however, bypasses
this question as too hard, and, resting on her shoulders, so will 1.5 | offer two
observations, however. First, the justification for the incidental loss of innocent
lives in a low-intensity operation does not differ from the justification one wants
to give for such loss in conventional war. So whether one chooses the doctrine
of double effect or the “larger” purpose doctrine to justify incidental loss of
innocent lives in a just war, the same rationale is available for justified low-in-
tensity operations, (Recall that the other constraints, such as proportionality and
modus operandi, still apply.) Second, there is a clear difference in moral culpability
between the just warrior (i.e., one fighting for a just cause) who tries as hard as
he can to protect innocents, and the just warrior who chooses to terrorize and
victimize them in his pursuit of the just end. So at least that difference may be
clearly drawn. A low-intensity operation against an illegitimate government,
then, may not be aimed at innocent people, even if that is conducive to the
demise of the tyrant. Moreover, the agents conducting the low-intensity opera~
tions must design it having in mind the protection of the rights of bystanders.

() Low-Intensity Operations Against an Illegitimate State

In this case, the social contract has collapsed, and no sovereignty considerations
apply. Anarchy reigns, and different groups control different parts of the territory
as in Lebanon in the 1980s. Yet even in this case, the aim of the low-intensity
operation has to be defensible under just war theory; and the individual human
tights of the residents, and in particular innocent people, ought to be respected.
Thus the considerations about innocent bystanders discussed in the previous
paragraph apply here as well.

Vil. Necessity and Proportionality

The main purpose of this paper has been to suggest principles to evaluate
low-intensity operations in the light of State sovereignty. Two other conditions,


198 Legal & Moral Constraints on Low-Intensity Conflict

from a relatively small number of terrorist attacks, almost entirely outside of its
territory, usually in relatively limited forms. Yet the United States claimed a
self-defense right to make a major air strike against terrorist bases and military
facilities in Libya.

‘What emerges from the Israeli and American experience is two claims:

(1) a self-defense right to use preventive/deterrence attacks on terrorist
bases in sanctuary States;

(2) a self-defense right to protect nationals and their interests abroad by
counterterrorist attacks on the sources of continuing terrorist activity.

The Israeli/U.S. stance is definitely a minority position in international law.
Moreover, because of the disparity in the level of victimization by terrorists, there
may be a difference between the Israeli position which has been held for decades,
and the American position which rests almost entirely on the single Libyan case.
This is an issue that will require more serious thought both in the realms of
security policy and international law.

Contributions from just war doctrine may be helpful. I have not struggled
through all of the arguments about the difference between “self-defense” and
“reprisals” because they come primarily from publicists writing relatively early
in the UN era, and they are based on strict interpretation of the war-decision
law of the Charter, interpretations that have long since ceased to reflect the
practice and expectations of States and political movements.*® The threat of
terrorism was not contemplated in the United Nations Charter, yet it represents
far more ofa security threat to many States than conventional international war,
which naturally was foremost in the minds of the framers of the Charter. In these
circumstances, new thinking about the right of self-defense is necessary. Rather
than continue the tortured arguments about the meaning of self-defense under
the Charter, policy makers and publicists would profit from putting prominent
cases of victimization by terrorism through a just war analysis.

It should be clear from the general discussion of just war conditions already
presented that recourse to just war analyses would not necessarily be more or less
supportive of counterterror self-defense measures. Each case would present its
own problems of weighing costs and consequences against the desirability of
attaining the counterterror just cause. This is already reflected in practice. The
possibility of preventive/attrition counterterror attacks is usually restricted pretty
much to Libya. This is because Libya is a weak country and its leader, Qadhafi,
has a reputation for evil and erratic behavior. There is grumbling about terrorist
support and even promotion in Syria and Iran but little serious consideration of
attacking sources of terrorism in those countries. This is because they are major
players in the Middle East and counterterror attacks on their territory probably


Chapter |

Unconventional Warfare, Liberal Democracies,
and International Order

Alberto R. Coll

he high political, military, and economic risks increasingly associated

throughout the course of the twentieth century with open, conventional
war have led many States and non-State entities to shift to other forms of violence
as instruments of foreign policy. While the attention of liberal democracies and
their governments tends to be riveted on the spectacular scenarios of nuclear war
or regular conventional conflict, numerous international actors resort to what
might be described as strategies of “violent peace” to achieve their objectives.
Far from making open war, these actors do their best to persuade their adversaries
that they are at peace with them and that relations between them should be
“normalized”. For these actors, violent peace is a state of affairs in which a wide
spectrum of unconventional and highly creative modes of violence, best summed
up under the term “unconventional warfare”, are used against an opponent,
while maintaining the pretense that there is no open war going on. It is a
conception of warfare with which ancient strategists and philosophers of war
such as Sun Tzu (400 B.C.) and the author of the Arthashastra (300 B.C.) were
familiar, but which democratic societies, shaped as they have been by notions of
rational liberalism and the feasibility of true peace, have difficulty comprehend-
ing.

Unconventional warfare covers a diverse range of activities, many of them
associated with the term “low-intensity conflict”: support for guerrilla warfare,
insurgencies, and non-State actors committed to using violence to achieve their
political purposes; undeclared war aimed at overthrowing governments allied
with, or friendly to, one’s adversaries; aid to terrorist groups through the
provision of money, arms, training, false documents and sanctuary; sponsorship
of violent coups to install more pliable foreign regimes; sophisticated and
intensive disinformation campaigns through the use of broadcasting, other
communications media and forged documents to incite violence against the
adversary’s diplomatic personnel overseas and foreign governments friendly to
it; support for acts of assassination and political intimidation against foreign leaders
and high-profile defectors and dissidents; and cooperation with entities involved
in the wholesale export of narcotic drugs.


Coll and Shultz 329

Under No Circumstances Use Covert Action, For It Is Inconsistent With American
Political Values

The first viewpoint asserts that under no circumstances should the United
States be involved in covert action. This perspective can be divided into two
sub-categories: one, covert action violates democratic values; two, Presidents
who undertake these activities do so without testing their viability in the public
policy market place.

The first of these variants has been advanced by such senior American
statesmen as George Kennan and George Ball. Kennan is an interesting case, for
initially he was a proponent of covert action in the latter half of the 1940s. At
that time it was employed as part of a larger policy to rebuild Western Europe
and prevent Soviet-backed communist parties from reaching power. Further-
more, far from violating American values, covert action provided assistance to
non-communist political parties to compete against their better financed com-
munist competitors and win democratic elections. Nevertheless, to the degree
that he grew disillusioned with America’s Cold War policies, Kennan also
became a critic of covert action. He wrote that “operations of this nature are not
in character for this country. They do not accord with its traditions . . . The
effort to conduct them involves dilemmas and situations of moral ambiguity in
which the American statesman is deprived of principled guidance and loses a
sense of what is fitting and what is not.”® While Kennan has been willing to
admit that “there may be rare moments when a secret operation appears
indispensable” —the ACHILLE LAURO kidnapping—he concludes that covert
actions are “simply not our dish . . . [they] conflict with our traditional standards
and compromise our diplomacy in other areas.”

George Ball, who served in senior positions in the Kennedy and Johnson
Administrations, agrees with Kennan. As he stated a few years ago:

In principle, I think we ought to discourage the idea of fighting secret wars or
even initiating most covert operations. We throw away our considerable ad-
vantages over the Russians when we indulge in such things... The United States...
has assets that transcend that, the greatest of which is our reputation for upholding.
certain principles—noninterference in the affairs of other nations, respect for their
sovereignty and self-determination, and so on... When the United States violates
those Principles... we fuzz over the difference between ourselves and the Soviet
Union.

Ball went on to argue that U.S. use of covert action equated with the
“Brezhnev doctrine . . . [The] Soviet Union will not accept the overthrow of
any of [its] satellites.” He believed the U.S. has applied a “similar doctrine to
Latin America.”® A handful of former CIA officials agree. For example, Ralph
McGhee argued that covert action and democratic values are incompatible and


xviii

constraints on America’s freedom of maneuver in the low-intensity conflict
arena.

A few observations on the rationale behind the organization of the resulting
symposium should be of use to the reader who approaches this volume with
more than casual interest. To impose a productive structure on the rich and
promising mix of diplomats, lawyers, scholars, soldiers and sailors, it was thought
best to provide three distinct topics for their deliberations. To this end, a series
of analytic papers was commissioned from a select group of thinkers to provide
the meat for discussions of sovereignty, just war theory, and the domestic legal
and political strictures on low-intensity conflict. To lend coherence to the
diversity of view that was expected in the discussion, a complementary series of
dissenting or critical essays was also commissioned. Those who feel the need to
reacquaint themselves with the nature of sovereignty law and the jus ad bellum
before plunging into the melee of debate, will find in the articles and essays well
written, non-technical and incisive explications of these topics that seldom stray
from the overarching concern with low-intensity conflict. If, on the other hand,
the reader would like to put his finger on the carotid pulse of the low-intensity
conflict debate, all he need do is dip into the symposium proceedings.

The brief account of the changing fortunes of the term “low-intensity
conflict” offered at the beginning of this introduction stopped short of describing
its current status. Now that the Democratic party has regained the Presidency
after a prolonged absence, it is natural to expect that the language used to frame
our national aspirations in foreign policy would change, and indeed, a casual
observer of these affairs might be forgiven for forgetting that low-intensity
conflict was ever a widespread concern in our defense and foreign policy
establishments. The expression seems to have reacquired some of its former taint,
having retained, perhaps unsurprising, unfavorable associations for those last in
office in the seventies. Though its existence has not been actively denied, its
popularity as a way of approaching the problems of sub-conventional conflict
was for a time eclipsed by high hopes for the possibilities of multilateral security
operations conducted under the aegis ofa newly sensible, more muscular United
Nations. There is now a family of activities, grouped under the heading of “peace
operations,” which are expected to cope with many of the disturbances formerly
collected under the rubric of low-intensity conflict. That enthusiasm for this
new approach to security challenges has recently begun to pall is probably as
much a reaction to the messy realities of the challenges themselves as it is an
indication of a realistic reappraisal of the limitations of the United Nations. In
one respect, this is reassuring evidence that low-intensity conflict policy makers
and theorists have not been engaged in an extended exercise in reification.
Whether one calls them small wars, “unconventional warfare”, low-intensity
conflicts, peace enforcement operations, or “operations other than war”, the


Index

Gulf War, mandate for: See Gulf War
Israel's counterterrorist tactics, UN view of, 197
practice and expectations as creating norm, review of, 239
“reinvigoration” of, effect, 159-160, 168, 284, 299, 311-312
reporting requirement of Article 51, 71
self-defense, right of, 64, 231
Sccurity forces of US, coordination among civilian and military personnel, 267-271
Seizure of criminal defendants: See Criminal matters and law enforcement
Self-defense
anticipatory self-defense: See Anticipatory self-defense
Article 51, interpretations of self defense in: See Article 51 of UN Charter
Article 12, right to self-defense from armed attack, 57
collective self-defense: See Collective security concept
defined, 98, 236
equitable considerations, 50-52
“exceptions” to UN Charter’s definition of self-defense, effect of, 282
historic US view, 70-71
importance of systemic support of, 27-39
innocent host state to terrorist activities, 72-74, 232
International Court’s view of, 115
Nicaragua case, 138-141
interpretation, 33-34, 37, 282
Article 51, interpretations of self defense in: See Article 51 of UN Charter
“reasonable” approaches to question of, 182-184
Israel’s counterterrorist attacks based on, 197
just cause, criterion under, 257
Libya, US claim of self-defense in 1986 Libyan raid, 183, 197-198, 212, 232, 239, 299
multilateral approaches, 48-49, 168
national abroad, self-defense of: See Citizens and citizenship
Nicaragua case, limits placed on self-defense in, 138-141
nuclear weapons: See Weapons of mass destruction
pattern of aggression, right of defense, 31-33, 36, 38
preemptive self-defense: See Anticipatory or preemptive self-defense
“reasonable” claim of self-defense, just war doctrine to determine, 184, 186-192, 234
rule of law affected by need for, 44~46
scope of right to, 62-69
‘weapons of mass destruction: See Weapons of mass destruction
Self-help: See Self-defense
Self-preservation: See Self-defense
Sendero Luminoso, 144, 199, 232
Serbia, covert nature of operating, 16
Shiite rebellion in Iraq, US overt aid to, 165-166
“Shining Path” (Sendero Luminoso), 144, 199, 232
Shultz-Weinberger debate
international law, absence of inclusion in Weinberger Doctrine, 234-235
jus ad bellum, translating into policy language, 156-157, 313
revival of just war tradition in Weinberger Doctrine, 207, 211
“sight authority” principle, 159
Skorezeny, Otto, 274
Slavery and slave trade
economic reasons for, effect of, 221
high seas, intervention on, 79
obligatio erga omnes, 59
Small wars: See Low-intensity conflict
‘Smith, Michael Joseph, 336
Social contracts
horizontal contracts: See Horizontal social contracts
vertical contracts: See Vertical social contracts

383


TABLE OF CONTENTS

FOREWORD ... 1... eee eee ee eee eee eee xi
ACKNOWLEDGEMENTS .... 2... 2-2 ee erences xiii
PREFACE 2... ee ee eee ee ee te et eee ee xv
PART ONE—INTRODUCTION ........-.--+-+-- 1
CHAPTER I—UNCONVENTIONAL WARFARE, LIBERAL

DEMOCRACIES, AND INTERNATIONAL ORDER
AlbertoR. Coll 2... ee eee ee ee eee

w

PART TWO—LEGAL CONSTRAINTS ON LOW-INTENSITY
CONFLICT: INTERNATIONAL LAW AND STATE
SOVEREIGNTY . 0... eee ee ee ee eee 23

CHAPTER II—LOW-INTENSITY CONFLICT AND
THE INTERNATIONAL LEGAL SYSTEM
John N. Moore... 6. eee ee ee ee ee ee eee 25

CHAPTER III—STATE SOVEREIGNTY, INTER-
NATIONAL LAW, AND THE USE OF FORCE IN
COUNTERING LOW-INTENSITY AGGRESSION
IN THE MODERN WORLD
Robert F. Turner. 6 6 0 ee ee ee eee ee 43

CHAPTER IV—LOW-INTENSITY CONFLICT AND
STATE SOVEREIGNTY: A PHILOSOPHICAL
ANALYSIS
Femando R. Teson. .. 1 ee eee ee ee ee ene 87

COMMENT
Terry Nardin 66 ee ee 109

CHAPTER V—PANEL DISCUSSION: INTERNATIONAL
LAW AND STATE SOVEREIGNTY .
W. Michael Reisman, Chair. 2. 6 6 ee ee ee ee ee 115

PART THREE—MORAL CONSTRAINTS ON LOW-
INTENSITY CONFLICT: MORALITY AND THE JUST
WAR TRADITION .. 1... 20-02 eee eee ee ee 145


116 Legal & Moral Constraints on Low-Intensity Conflict

In these matters, international law certainly doesn’t serve common interests, and
probably is counterproductive in the sense that it forces those who are targets of
low-intensity strategies to respond in kind. This is a subject that will have to be
considered in the course of the next two days. It is one contribution that
international lawyers and scholars may make to clarification and improvement
in this particular area.

Our discussion this morning involves a presentation by Professor Robert
Turner, and comments by Professor Tom Farer; then a second presentation by
Professor Fernando Teson with comments by Professor Terry Nardin. [After
Professor Turner presented his paper, “State Sovereignty, International Law, and
the Use of Force in Countering Low-Intensity Aggression in the Modern
World”, Professor Reisman introduced Professor Tom Farer.]

PROF. REISMAN: I call on Professor Farer.

PROF. FARER: Thank you Michael and thank you Bob.

I love being a commentator. I much prefer being a commentator to being a
main speaker. No one expects you to be definitive. The main speaker has to hang
himself out there. He doesn’t know from which side you’re going to assault him.

Bob’s probably wondering what I’m going to say, and I’ve been thinking
about it myself for a while.

There’s a lot that Bob and I agree on. We agree that it’s very difficult to bring
Operation Just Cause within the constraints of international law. And that is so
whether you define the relevant restraints on the use of force as those embedded.
in the text of the U.N. Charter, or in those to be found in general international
law and the customary practice of States, which means in the perceptions of
scholars and decisionmakers as to what is the substance of that law.

We are both inclined to think that what Bob calls the “long-arm” statutes—

‘that is licenses to reach across national frontiers to kidnap people who have
violated U.S. laws but have been wise enough not to come within the jurisdiction.
of the United States—probably don’t contribute to international order, and
probably do not contribute, on balance, to the interests of the United States. —

We both recognize the importance of reciprocity, the importance of sensitivity
to reciprocity. Although Bob may approach the notion of reciprocity a little
more formally than I would, Bob’s point in his paper and again in his remarks
was that any tactic, any justification that we employ, is by the very nature of law,
international or domestic, available to other authority structures under similar
circumstances. I think he is making more than a purely formal point about the
logic of law. It has to do also with the force of mimesis in international relations.

Forget law for a moment. Just think about a community with a relatively small
number of actors, which is the international community. Of course, it’s larger
than it has ever been before. There are far more sovereign States, and we have


Roundtable Discussion 317

advisor, an international lawyer, or a policy maker in low-intensity conflict
operations; all of whom may introduce appropriate notions of morality into the
process of interpretation. So I think that the distinction between separation and
interpretation is just simplistic and doesn’t wash. I agree with Professor Nardin
that treaty law agreed upon by States may not leave room for interpretation.
There might then be a point at which separation does take place and we must
acknowledge that the positive law is unjust. A low-intensity conflict operation
would then have to be justified on a moral basis.

The second point that I would like to address concerns a comment by
Professor O’Brien on just war theory. I would like to say that, although I was
intrigued by the procedural framework of just war theory, it seems to me that it
cannot be just that. It has to be filled in by some substantive notion of what's
right and wrong, and when it is correct to exercise international coercion. In my
view, the most desirable supplement to the procedural framework of the just war
tradition is a theory of respect for legitimacy and human rights. :

I would like to make my final point by asking why democracies need to use
low-intensity operations. I suggest that the reason is simply the existence of
despotism around the world. As Professor O’Brien said yesterday, we don’t
conduct any low-intensity operations against Denmark. Democracies do not
fight each other. Kant said this in 1795 in his book Perpetual Peace and it has now
been overwhelmingly confirmed by the statistics collected by Michael Doyle and
other political scientists. Therefore, I suggest that the promotion of democracy
and human rights should be a principal motivation for the people who are
planning these operations.

PROF. COLL: Thank you Professor Teson.
Professor Eckhardt.

PROP. ECKHARDT: I noticed that our title is “Legal and Moral Constraints
on Low-Intensity Conflict,” and following on Admiral Harlow’s suggestion, if
I were in your position, I would commence a study of every congressional act
and statute that you believe constricts justly, or otherwise, your ability to conduct
the type of low-intensity conflict that you think is permissible. I would ascertain
which statutes you think are invalid and suggest amending legislation where
appropriate. I’m thinking about activities like security assistance and funding. I’m
thinking in practical terms because, after all, the constitutionally mandated
war-making power of Congress has sometimes been amplified through legislation
that was only appropriate to the conflict which occasioned it, yet it remains in
force.

PROF. COLL: Thank you.


278 Legal & Moral Constraints on Low-Intensity Conflict

gathering is the case in point. So the kinds of moral concerns that would bear
on that activity are not identical with the moral concerns that would be brought
to an operation involving the use of force of any kind.

I think that’s one distinction that we ought to keep in mind. We want our
politics, I hope, to be as moral as possible, and to me that means that we have to
take seriously just war concerns. But I think we also have some other concerns
that, in the case of covert operations, may be a good deal more relevant and more
important than the several criteria in just war tradition,

The more general comment I wanted to make has to do with the whole
question of the institutionalization of policy and its relationship to the American
public debate over low-intensity conflict.

I take seriously the comment that lawyers are very seldom consulted, and
when they are brought in, are not asked the right questions or given a chance to
respond fully. That’s certainly true in spades for the people that do moral studies.
We are even farther down the list than the lawyers. What needs to be done in
the policy process, is more than simply having people of integrity around,
whether they be lawyers or moralists or generals or diplomats. You really have
to have an institutionalized process by which certain principles get put in place
and used, Whether guidelines or checklists are used would depend on the rigidity
of the approach, but something needs to be there that requires policy makers to
ponder these criteria before they make decisions. That’s a way of making sure
that everybody isn’t caught napping when the press or somebody in Congress
gets hold ofa new policy. It’s a way of making sure that the debate has, in fact,
gone on, and decisions have been made in the proper way. But, there’s another
side to the thing, and that is making sure the debate is public.

George Weigel touched on something that’s very sensitive, it seems to me,
when he pointed out that what we did yesterday in here on just war tradition is
far more than went on in any seminary in the country this semester. I would say
that it’s probably more like in the last five years. There is not an ongoing public
debate over these things. Maybe it’s because we, as a culture, don’t really like to
talk about the projection of force as a policy matter. The trouble with this is that
‘we will get very bad advice and make disastrous ad hoc decisions. So, we've got
to find a way to get the debate out of this room in Mahan Hall, and into the
public sphere.

RADM HARLOW: I hope you will indulge me if I make a few synoptic
observations to cap off our proceedings. It seems obvious that low-intensity
conflict brings into play a wide range of domestic and international legal
principles. At its lower end, this spectrum might include law enforcement
principles entirely consistent with traditional peacetime international relations.
Ranging up the spectrum, low-intensity conflict operations could be premised
on the principle of humanitarian intervention, as is currently the case in Somalia.


94 Legal & Mora! Constraints on Low-Intensity Conflict

justification on communitarian grounds. This version of realism is foundationalist,
in that appeal to the foundational principles of the community is thought to
outweigh the computation of actual preferences,

Communitarian realism has the virtue of rejecting the pure utilitarian approach
to national interest described above. It recognizes that higher principles of
morality may not be foremost in the midst of the majority of members of the
community at a given historical moment. By refusing to conform foreign policy
to transient popular sentiment, this version of communitarianism attempts to
instill a principled consistency into the conduct of international relations. And
in many situations this approach will be intuitively appealing. For example, an
argument against the CIA’s involvement in the overthrow of Chilean President
Salvador Allende can be made on the grounds that such action was incompatible
with the principles embedded in the American tradition of respect for human
rights and the popular will.

(d) A Critique of Realism

Normative realism underlies much of the literature on low- intensity conflict.
Most of the works on low-intensity conflict are about what strategies better serve
the U.S. national interest.” But I submit that normative realism is not morally
sound, Advancing the national interest is neither a sufficient nor a necessary
condition to justify low-intensity operations.

I will start with utilitarian realism. This version of realism, as suggested above,
has considerable appeal became it is based on democratic principles. What could
be more obvious than that a government that we elect to defend our interests
should do those things that advance our interests? In the philosophical literature,
the most devastating critique of utilitarianism comes from a foundationalist
perspective.”> Many international acts may serve the national interest in a
utilitarian sense, yet be immoral on other grounds. Just as in individual morality
‘we must refrain from immoral acts, even if they maximize our self-interest, so
in international relations governments must refrain from immoral acts even if
they serve the national interest. Thus the foundationalist critique attacks the often
unstated premise of realism that there is no international morality.

This flaw of utilitarian realism is clearly seen in its well-known indifference
to human rights. Surely someone committed to liberal principles would not
accept the proposition that a government may blatantly violate the rights of
persons in other countries provided that in doing so it advances his interests. Put
differently, the objection to utilitarian realism is that its premise or point of
departure is wrong because it is incomplete. A government's job description
should not be “persons we elect to maximize our interests”, but “persons we
elect to maximize our interests consistently with respect for human rights.” A
morally justified democracy constrains the will of the majority with respect for
human rights. Just as domestically the majority may not oppress minorities, so


Turner 53

There is already a considerable amount of distrust of the government within the
academic international law community, and for the past two decades it has been
common for legal scholars to criticize governmental decisions to use force. Sadly,
even when the government is clearly justified in its decision to resort to force, if
its legal justification for the action is misstated, the critics will not hesitate to
attack the justification.”> Therefore, the task of setting forth the moral and legal
justification for any potentially controversial use of force should be entrusted to
individuals with sound scholarly training and an appreciation of the fact that
credibility depends upon complete accuracy and honesty in setting forth the case.

The Concept of Sovereignty

The concept of sovereignty carries with it the idea of supremacy or inde-
pendence from external control. In an absolute form, sovereignty would clearly
preclude the existence of a meaningful system of international law. It affects not
only the permissibility of one State using force against another, but also the right
of victims of armed aggression to act within the boundaries of other States in the
interest of peace. To understand the modern concept of sovereignty, it is useful
to review briefly the intellectual origins of the concept and its development over
the years.

Early Views Of Sovereignty

It is speculated that William of Ockham (1270-1347) may have been the first
to put forth the concept of “popular sovereignty,” a view held almost contem-
poraneously by Marsilius of Padua, who argued that the people were the source
of all power within a society.”* As early as the end of the Middle Ages, the word
souverain?> was used in France to indicate a political or other authority which was
“supreme” in the sense that it had no other authority above itself.

The first modern attempt to define “sovereignty” is usually attributed to Jean
Bodin (1530-1597). In his Les Six Livres de la République, Bodin views sovereigny
as “the absolute and perpetual power within a State,”?” or “that supreme
authority within a State whence all laws proceed.” Bodin viewed an absolute
monarch as the source of sovereign power, and concluded that such an authority
‘was subject to “no human restraints.”*” The Sovereign was, however, governed
by the Commandments of God and duties of Natural Law to keep faith with his
subjects.°° Bodin argued that sovereignty was an attribute of the king in a
monarchy and of the people in a democracy, and it could not be regulated by
positive law. The reason a king was required to abide by the terms of treaties
(pacta sunt servanda) arose not from positive law but because the Law of Nature
commands that contracts are binding?!


O'Brien 191

engenders governmental and popular opposition and resentment. Moreover, as
in the case of the 1989 U.S. intervention in Panama, the aftermath may be
prolonged political, economic and social dislocation that must be justified as
proportionate to the just cause of removing a tyrant and his oppressive regime.

Finally, the just cause may not be pursued by recourse to armed force unless
there is a reasonable exhaustion of peaceful remedies. The more common formulation
for this requirement is last resort. I find this formulation too extreme. It tends to
imply such a reluctance to justify recourse to armed force that last, desperate
measures may only be taken when it is virtually too late to defend the just cause.
To refer again to the 1991 Gulf War, last resort might require that we still be
trying to turn back Saddam Hussein by peacefull means, supplemented by
coercive sanctions short of major military action. I find that the five months
between Iraq’s aggression and the full-fledged U.S./UN response was marked
by reasonable exhaustion of peaceful remedies.

Peaceful and coercive remedies short of full-scale war should be exhausted.
These remedies have been reasonably exhausted if there is no apparent movement
by the other side towards an acceptable resolution of the situation caused by its
unjust actions. This is true whether the adversary is an aggressor State, an
oppressive regime or a revolutionary movement.

Right Intention. Right intention requires the just belligerent to limit its goals in
war to those things necessary for the achievement of the just cause. If the just
belligerent goes beyond what is necessary for the success of the just cause it risks
losing its moral status,

Right intention also requires that the just belligerent repress sentiments of
hatred and vengeance which are all too common in war, particularly in revolu-
tionary/counterinsurgency wars. Right intention requires that the just bel-
ligerent always acknowledge that the ultimate goal of a just war is a just and
lasting peace. Actions that are likely to frustrate that ultimate goal show a lack of
tight intention.

Right intention, as a condition of just war, has theological origins. It calls upon
individuals, political and military decision-makers and whole nations to fight
morally without tainting their cause with hatred and the desire for vengeance.
But right intention is also a prudential requirement of international politics. It is
not good policy to incur unnecessarily the abiding hatred of others and it is good
policy to seek reconciliation with defeated enemies, as did the U.S. with
Germany and Japan after World War II.

At this point the war-decision law of just war doctrine may be compared to
that of international law. Note that the alternative formulations of the war-
decision questions in international law are somewhat limited and rather mechani-
cal. A proposed course of action either fits within a legal category or it does not.
This is particularly true if strict versions of the law regulating recourse to armed


8 Legal & Moral Constraints on Low-Intensity Conflict

war as far more humane and reasonable than traditional Western conceptions of
warfare. Sun Tzu’s emphasis on “the unconventional approach”, his elegant
strategy of overcoming an adversary with as little destruction as possible, and his
aesthetic disdain for indiscriminate brutality prompted Liddell Hart to speculate,
somewhat disingeniously, that if European statesmen and generals around the
turn of this century had imbibed Sun Tzu’s theories, the course of both World
‘Wars might have been far different.”

Machiavelli's The Prince.

Perhaps the most famous expositor of “violent peace” in the Western tradition
remains Niccolo Machiavelli (1469-1527). The Prince belongs to the same genre
as the Arthashastra and The Art of War. It is a manual for political and military
success addressed to the ruler of a State in a highly anarchical system of
international relations. While debate continues on the true nature of Machiavelli
and his work, many readily agree with Leo Strauss’s estimate of Machiavelli as
“a teacher of evil”.” He was also a gifted humanist and patriot.

Although much of The Prince deals with how a political adventurer may seize
power ina State and keep it against the intrigues of his domestic opponents, there
is also an implicit theory of statecraft and warfare. To keep power, a prince not
only must eliminate his internal enemies; he also must guard against the perpetual
machinations of rival States seeking to conquer his own State. Moreover, success
in expanding the size and power of his State may strengthen the prince’s domestic
position and give him the legitimacy he so badly needs. So, Machiavelli
developed a doctrine for success in diplomacy and war. And its core elements
were, as in the doctrines of his Oriental counterparts, dissimulation and deception
accompanied by various forms of unconventional warfare as a substitute for, or
at least a requisite prelude to, direct military assault against foreign rivals.

In diplomacy, as in his dealings with his own subjects, it was important for
the prince to disguise his true intentions. In fact, if one had to choose, it was
better to appear to be a good man than to be a truly good man. As with Sun
‘Tzu, propaganda, disinformation, and active measures designed to confuse and
paralyze the adversary were essential.

The prince also should be prepared to resort to the entire panoply of violent
subversion: support for factions within an enemy State seeking to overthrow the
existing regime; assassination of selected foreign leaders; the nurture, through
money and other means, of civil war in a State to weaken that State and its allies
and increase the power of one’s own; and any other form of treachery and covert
violence available. Unconventional warfare was to be carried out in the context
ofa diplomacy of “normalcy” and under the cover of the most solemn assurances
by the prince concerning his own piety, integrity, and devotion to peace.


Coll and Shultz 349

that reflect American principles. Presidents will have to decide whether such
governments can stand the scrutiny of the American public. For example, is their
use of force justifiable and is it employed in self-defense? Is the incumbent
government the best presently available and can it be considered by its population
to be a competent authority with political legitimacy? Flexibility should exist to
assist governments like that of former President Corazon Aquino in the Philip-
pines (1986-1992) which, though far from perfect, may represent the most viable
route available to domestic reform and democratization.

If covert support is provided to a resistance movement, such resistance forces
must be challenging a government that is seen as politically illegitimate. Addi-
tionally, in terms of its tactics the movement cannot be a mirror image of the
government it seeks to replace. In other words, it cannot use indiscriminate
violence and coercion to extract support from the population. It must have a
political agenda that is acceptable and a cause that is seen as just by the population.
In their use of military force the insurgents must make a good faith effort to
follow principles of proportionality and discrimination that protect the rights of
noncombatants.

The same standards are applicable to covert support for coups of either of two
varieties: one, the traditional kind where assistance is given to a faction within a
country that carries out a swift seizure of power; two, a less traditional form that
consists of easing former friends out of power and into exile and assisting those
opposition elements who, once in power, will be either friendly to you or
unfriendly to your adversaries. If either or both of these options are undertaken
in the future the following conditions are necessary. First, a significant American
interest must be at stake. Second, the target of the coups must have lost political
credibility and legitimacy with its population. Additionally, those elements that
the United States assists must stand for the kind of political change that is reflective
of self-determination, political rights, and pluralistic government,

All of the above also applies to covert political actions. The elements or factions
receiving assistance must have a serious degree of political legitimacy in the eyes
of their own population. And they have to be morally and politically acceptable
to the American public as well. The 1983 elections in El Salvador can serve as
an example of this guideline. Both of the major candidates—Roberto d’-
Aubuisson and Jose Napoleon Duarte—asserted they were friends of the United
States and opposed Communism. However, from the standpoint of American
values only Duarte was acceptable. Reportedly, covert political advice and
support made a key contribution to his election against the better financed
d’Aubuisson. In this case covert political assistance was part of a larger policy
based on strategic interests and promotion of democratic political norms. This
might serve as a model for the use of the “political action” variant of covert action
in the future.


Panel Discussion 127

PROF. FARER: I’m not persuaded that there are different strategic cultures
out there because, as I said, I think that we ourselves have employed most of the
measures that are on the list of unconventional operations. We have, occasionally,
engaged in at least attempted assassinations—Cuba, case in point, and probably
a successful hit against Patrice Lamumba in the Congo. There are, however,
differences in culture out there which sometimes result in a conflict of interest.
The Fatwah, which Khomeini declared against the author Salman Rushdie, who
is a resident of the United Kingdom, is totally inconsistent with our notion of
human values, with our Constitutional values and, as far as we’re concerned,
with international law. I’m not sure that an Iranian diplomat would deny that.
He would just say, this is a case of a clash of values, and we, in our clashes, are
fairly open. For example, when it comes to, let us say, the treatment of women,
Saudi Arabia simply says, we reject the western view. That’s all. They refused to
vote in favor of the universal Declaration of Human Rights back in 1948 because
the nondiscrimination provisions were inconsistent with Muslim values as the
Saudis construe them.

But when it comes to basic questions of international order such as the use of
force across national frontiers, I think there is considerable commonality of views.
Now, with respect to democracy, the octogenarian leadership of China is a
holdout. They said so very frankly at the General Assembly. They do not accept
our conception of the legitimate State. Whether this is a general view in China
is another question. I think all of us agree that representative government is more
widely esteemed than it has been at any moment in history. Indeed, I would
probably put it more strongly than even Bob, and certainly Michael, who is
unusually muted for Michael on this point, that there is very good deductive
evidence and a reasonable amount, although much less, of empirical evidence
that democracies are less aggressive than other regimes. The most important point
is that democracies can form secure communities of States that have ceased to
think of each other as potential adversaries, which fundamentally transforms their
relationships and their ability to allocate resources. So I think there is a very strong
national interest in promoting the growth of an authentically pluralistic system.
But, democracy is not a universal culture. There are still fascists. They don’t call
themselves fascists, perhaps quite so frequently, but there’s still a fascist culture
out there in Latin America certainly, in eastern Europe, in Asia, and other places
but I’m not sure that that affects the way in which we fight with each other. It
does affect our grand strategic ends.

PROF. REISMAN: Very briefly, I think there are very substantial differences
in strategic culture over the use of force, when licit contingencies arise, and I
think it poses a major problem.

‘We have very little time left. I think it would be only fair under the circumstances,
to give Professor Turmer a chance to make the concluding remarks.


Panel Discussion 223
FR. WINTERS: Yes. That’s what I’m saying.
PROF. COLL: Still, the invasion of Kuwait was an attack on these core values.

FR. WINTERS: But my point is not that it was the rights of individuals being
threatened, it was the right of that people to be independent as a people. I don’t
want to reduce rights to individual rights, and I think that the fundamental
difference in our debate here, is whether sovereignty is a human right.

The whole point of my thesis, and that of Walzer, and I think Terry Nardin,
is the fundamental political human right of sovereignty. Some sovereign people
will make individual rights their criterion. Other sovereign people won’t, and
they have a sovereign right to choose one or the other. I don’t think we can
legislate a particular understanding of the relationship between the individual and
the State. Not only philosophically, but historically, this is a wholly utopian
enterprise.

PROF. COLL: We have time for one last comment and I will turn to Judge
Sofaer for his response.

JUDGE SOFAER: I thought you were claiming more than that in the following
sense: even if you would regard us as agreed on basic moral objectives for the
world at this point, you think that the act of intervening in order to satisfy our
sense of justice can cause more moral damage than standing back just because
we don’t know what will ensue from that act. I tend to share that concern. I
think the basic rules of international law are derived from historical wisdom.
Rules about sovereignty and about territorial integrity are barriers that confront
us and force us to make allowance for the fact that just because we think we
know better, we may not be able to make things better. And even though I
believe we do know better, I accept these practical limitations on our reforming
spirit.

I greatly admire and appreciate the complex analysis of Professor O’Brien’s
just war valuations because they highlight the fact that even within an equitable
system of law, one must cope with the issue of remedy. The creation of rules,
even rules everyone accepts, does not necessarily mean that all violations, even
if they are agreed to be violations, would be treated similarly. And I was very
distressed when we walked away during the Gulf War from the statements of
principle Jeane Kirkpatrick had made in 1981 concerning Israel’s preemptive
bombing of the Iraqi nuclear reactor at Osirak. You will remember that she
condemned it because Israel had not exhausted the diplomatic means available
to it prior to making the strike and she actually went on to equate it to the Soviet
invasion of Afghanistan. It became impossible socially, politically, legally, morally,

to defend any war on the position that everyone in the legal community had


EDITORS AND CONTRIBUTORS

Alberto R. Coll is Professor of Strategy and Policy at the U.S. Naval War
College. He served as Principal Deputy Assistant Secretary of Defense for Special
Operations and Low-Intensity Conflict from 1990-1993. He is the author of The
Wisdom of Statecraft, co-editor of The Falklands War, and numerous articles and
monographs on international relations, law, ethics, and national security policy.
Dr. Coll has served as a consultant to the United States Institute of Peace and
the Center for Strategic and International Studies, and is a member of the Army
Board on Science and Technology and a trustee of Fuller Theological Seminary.

John M. Collins is the Senior Specialist in National Defense at the Library of
Congress. He served 30 years in the U.S. Army retiring as a Colonel. He has
served as the Director, Military Strategy Studies, and Chief, Strategic Research
Group at the National War College. His published works include America’s Small
Wars: Lessons for the Future, and U.S.-Soviet Military Balance, 1980-1985.

Captain Thomas J. Connelly, USN is the Special Counsel to the Chief of
Naval Operations. He began his career as a line officer aboard the USS
DETROIT (AOE-4) and USS FARRAGUT (DDG-37) before being selected
for the Navy Law Education Program. His other assignments have included duty
as the Force Judge Advocate for the Commander Joint Task Force Middle East
during Operation EARNEST WILL, Staff Judge Advocate to the Commander
Naval Forces U.S. Central Command during DESERT SHIELD and DESERT
STORM, and Deputy Legal Counsel to the Chairman of the Joint Chiefs of
Staff, Prior to his current assignment he was the Executive Assistant to the Judge
Advocate General of the Navy.

Kenneth E. deGraffenreid is a Professor of Intelligence Studies at the Institute
of World Politics. He has served in the Department of Defense, the Senate Select
Committee on Intelligence, and the National Security Council staff.

Colonel William G. Eckhardt is former Director of National Security Legal
Studies at the Army War College. He served 30 years as a Judge Advocate in the
USS. Army. Some of his previous assignments were as Legal Advisor to the U.S.
European Command and as Chief Trial Counsel for the My Lai cases.

Tom Farer is Professor and Director of the Joint-Degree Program in Law and
International Relations at American University. He is a former President of the
Inter-American Commission on Human Rights of the Organization of American
States. He has served as Special Assistant to the General Counsel of the


856 Legal & Moral Constraints on Low-Intensity Conflict

Foundation in Newport, Rhode Island. His recent military assignments have
included two tours in the Policy Planning Directorate of the Office of Assistant
Secretary of Defense for Special Operations and Low-Intensity Conflict. He has
also edited a book on Peace Enforcement Operations for the Marine Corps
University, which is scheduled for publication in its Perspectives on Warfighting
series,

W. Michael Reisman is Hohfeld Professor of Jurisprudence at Yale Law School.
He is a Fellow of the World Academy of Arts and Sciences, a Member of its
Executive Council, and a Member of the Advisory Committee on International
Law of the Department of State. He is also President of the Inter-American
Commission on Human Rights, and author or editor of over twelve books on
international law, including Intemational Law in Cortemporary Perspective; Jurisprudence:
Understanding and Shaping Law, and Regulating Covert Action.

Rear Admiral Horace B. Robertson, Jr., USN (Ret) served in the U.S.
Navy from 1945 to 1976, first as a general line officer and later as a law specialist
and judge advocate. Included among his assignments were tours as Commanding
Officer of an amphibious landing ship, as Special Counsel to Secretary of the
Navy Paul Nitze, as Special Counsel to Chief of Naval Operations Elmo R.
Zumwalt, and as Judge Advocate General of the Navy. Upon retirement, he was
appointed a professor of law at Duke University School of Law, where he served
as Senior Associate Dean from 1986 to 1989, In 1991-92 he occupied the
Charles H. Stockton Chair of International Law at the Naval War College.

Captain Stephen Rose is the Staff Judge Advocate for the Commander-in-
Chief, U.S. Atlantic Command. He began his career as a naval aviator before
being selected for the Navy Law Education Program. His assignments have
included Commanding Officer, Naval Legal Services Office Guam, Force Judge
Advocate for Commander, Naval Air Force Atlantic and Deputy Director for
Policy Planning (Special Operations and Low-Intensity Conflict) with the Office
of the Secretary of Defense. He is a graduate of the Naval War College where
he received the Colbert Memorial Award and the 1989 Joint Chiefs of Staff
Writing Prizes for his essay entitled “The Coming Explosion of Silent Weapons”.
He has also authored numerous other articles cn legal, maritime and strategic
issues.

Sam C., Sarkesian is Professor of Political Science at Loyola University in
Chicago. He served for 20 years as an officer in the U.S. Army. He is the
Chairman of the Academic Advisory Council of the National Strategy Forum.
Some of his books include America’s Forgotten Wars, The New Battlefield: The




Panel Discussion 125
PROF. TURNER: Yes, that’s right.
PROF. REISMAN: Tom, do you want to respond to that?

PROF. FARER: I think we should not seek to overthrow democratic govern-
ments. How is that for a rule of thumb?

PROF. REISMAN: Is there a corollary?
PROF. TURNER: How about non-aggressive democratic governments?

PROF. FARER: The truth is I’m not a reflexive anti-interventionist, and I’m
a very typical American. You see something you don’t like, you say, let’s do
something about it. And so, although I support our involvement in international
procedures which tend to restrain intervention, I do so always with a certain
sense of ambivalence. Did I want to get rid of Idi Amin? Yes. I did want to get
rid of Idi Amin. I also wanted to get rid of Pol Pot, and so I, of course, wouldn’t
have supported Pol Pot’s representative at the United Nations as we did for many
years.

I think many people here have been or are involved in policy. You know,
policy is guided by certain broad directives, and that’s why I started off with a
tule of thumb. We should not intervene to overthrow democratically elected
governments. Unfortunately, this principle is complicated by the fact that
popularly elected regimes can go rotten, as recent developments in Peru seem
to suggest. But, the view that a past election victory confers legitimacy on a
regime implies that support for insurgents opposed to it is illegitimate inter-
vention. So, the connection between the legitimacy of sovereign governments
and the legitimacy of foreign intervention is sufficiently ambiguous to complicate
the use ofan inflexible general principle to arbitrate our foreign policy decisions.
Our inability to discern whether the emerging world order will be unipolar or
multipolar does nothing to simplify this policy predicament. Nonetheless, I
would persist in maintaining that the use of highly coercive forms of intervention
to advance interests of moderate importance is probably inconsistent with our
larger national interest, which is increasingly dependent on international co-
operation.

PROF. REISMAN: IfI may make one briefresponse to that. I think it’s wrong
to ask the question in terms of military intervention. We’re in a very inter-
dependent system, and we’re a very large actor, and we are influencing behavior
in smaller States all the time. There’s no way we can avoid doing it. In this respect,
if you talk about it in nonmilitary terms, international politics is constant
intervention into the affairs of other States. And the purpose of the intervention


Coll and Shultz 343
Political Principles and the Origins of the American Regime

The second tradition we shall draw on is that of the American regime and its
founding principles as embodied in the Declaration of Independence and the
Constitution. These documents were not a break from the classical past. The
Founders were familiar with the “political writings of antiquity and accepted
much of the classical criticism of democracy.” As Martin Diamond has observed,
they understood democracy as it derived from its Greek origins. However, he
also noted that the “pre-modern preference for a mixed republic . . . was rejected
by the Founders in favor of a democratic republic.””>

The Declaration of Independence claims to base itself on “natural rights” and
holds four “truths to be self-evident.” The first of these is that “all men are created
equal.” This is the fundamental principle of the American democratic regime. If
all men are created equal, no one has by nature a superior right to take another's
liberty or to determine his or her way of life. From this primary proposition a
second set of universal truths—"inalienable rights"—evolved. These individual
rights include the right to “life, liberty and the pursuit of happiness.”

The third principle holds that to “secure these rights, Governments are
instituted among Men, deriving their just power from the consent of the
governed.” This is the right to government by consent. The Declaration did not
specify what type of government was best, only that the consent of the people
is necessary to establish government. As Diamond has pointed out, “the Decla-
ration was not urging a particular form of government, but was following John.
Locke’s social contract theory which taught the right of the people to establish
any form of government they choose.””* The fourth right was the right to depose
an unjust or unrepresentative government.

Are these universal principles relevant to U.S. foreign policy? It would seem
unusual if a nation’s values were not to influence how it acts in the international
arena, Indeed, sooner or later, a nation will attempt to reconcile its foreign policy
with what it stands for in its domestic institutions. How did the Founders view
this issue? Although they established the nation on the doctrine of universal
natural rights, they did not believe that our foreign policy should seek to
transform all those nations that did not accept this as the basis of government.
While the Declaration of Independence evoked a doctrine of universal natural
rights which might claim to serve as a basis for foreign policy, the Founders also
believed in the exercise of prudence. According to Nathan Tarcov, “the founders
would not accept our dichotomy of idealism and realism: they would offer instead
the complementary relation of principle and prudence. From their perspective
the relation is not dichotomous but complementary, a relation of application and
judgment.””* In other words, the Framers of the Declaration sought to strike a
balance between universal principles and their prudential application in interna-
tional relations. Prudence is not separated from values but requires values for


$22 Legal & Moral Constraints on Low-intensity Conflict

Ialso, however, consider myself‘ hopeless integrator, and would like to reply
to Professor Nardin’s commentary by pointing out one of the dangers of being
a separator. The scrupulous separator maintains that the integrity of law and
morality must not be compromised by commingling them with the national
interest. But his refusal to cultivate any kinds of integrating links or even tentative
embraces can sometimes have an untoward result. Morality and law may come
to seem irrelevant to the policy process, and a crude understanding of the national
interest untempered by normative considerations will be pushed to the fore by
bureaucratic interests. This state of affairs is by no means foreign to the halls of
our government.

Iam not prepared to give up the quest for integration. It is difficult and it has
real dangers, including the temptation to equate what is expedient with what is
right, or the tendency to equate our own ideology or narrow prejudices with
the good of the world. I think that integration is vital to our ethos as a society
because it harmonizes with the principles of our founding. The architects of our
republican order built according to a vision that was strengthened by allowing
for human imperfection. Their genius lay in framing an edifice in which selfish
interests, channeled into mutual opposition, would be softened and reconciled
with a moral and legal structure of enduring integrity. This is one of the defining
features of the American experiment and it is why we are not by inclination
separators. Two hundred years after our founding we still believe it is possible
to build a society that acknowledges the realities of human sin; our brokenness
and lust for power, while preserving the vigor of law and morality.

I do want to close by urging all of you to think further about the influence of
these constraints and how we might improve institutional arrangements for
conducting this kind of discourse as our policy is formulated. We have been
challenged by Chris Lamb and Ken DeGraffenreid to ask ourselves to what extent
moral considerations actually play any genuine role in the policy process. As
much as I agree with the particular examples given by Chris, I still think that
there are many instances in which these considerations manage to push their way
in and shape the debate. But this is a question to which there are not yet any
clear answers, and one on which I’m open to fresh ideas,

Let me thank you once again for joining us here, for your intellectual
friendship, for the books and articles that you have written in the past from which
many of us have profited, and for your good, practical counsel at every step of
the way. We look forward to staying in touch with you and I hope that this will
not be the last of similar efforts that we will undertake in the future as we continue
our pilgrimage. And finally, let me thank the Navel War College for hosting this

symposium.
Thank you all.


Roundtable Discussion 321

The second problem, of course, is that competing bureaucrats will all start
elbowing each other out of the way to see who can enlarge his turf. But I think
this is simply inescapable because the civil affairs requirement, in most aspects of
low-intensity conflict, is more important than anything else, including weapons
systems, and all the other kinds of hardware. Ultimately, these conflicts are
political and social and that’s why civil affairs needs to be taken seriously within
the United States Government.

PROF. COLL: Thank you.

Let me thank you most warmly for having joined us for this symposium. I
have found it very helpful. As I suggested yesterday, these kinds of gatherings
cannot be expected to produce either brilliant new insights or clear solutions to
future problems, but I think that they perform a valuable service by airing critical
issues that are easily overlooked in the policymaking process. I have found in my
brief twenty months in Washington that the greatest moral frailty of policy-
makers is not a particular fondness for aggression or a proclivity for hatching
secret assassination plots. Our greatest sin is something far pettier and perhaps
deadlier for our own society, and that is bureaucratic selfishness and tunnel vision.
These failings induce us to mistake the process for the goal, the means for the
end; to believe that those things which we are engaged in have a reason of their
own, and to forget the fundamental reason for the existence of the vast, elaborate
machinery of government, which, in my view, is to uphold the honor of the
United States. I take that word “honor” to have a strong normative content.
Honor implies doing what is lawful and also doing what is right. That is what
we as a people believe. So it’s useful to get together once in a while and undertake
a serious enquiry about the nature of the constraints that we face. What is their
weight? How do they affect who we are and what we do, and the kinds of goals
that we should have in mind, and the kinds of means that we should use?

There is something very attractive about Professor Nardin’s reminder that law
and ethics do have a prophetic quality about them. In other words, they often
call us to do things that are not necessarily easy or that are not necessarily
comfortable. It becomes tempting to reject these considerations out of hand and
pretend that we are actually free to base our policy on nakedly expedient
considerations or tailor it to justify the existence of the bureaucracy. One of our
distinguishing human qualities, however, is that we are moral beings and live in
asociety bound by notions of lawfulness, against which we need to compare the
substance of our policy.

Low-intensity conflict is intensely problematic precisely because it is low-in-
tensity, because it is ambiguous, because it is indirect. It does not throw into
sharp relief the kinds of antinomies with which we are most comfortable. Instead,
it pushes us into gray areas, where we are compelled to balance and weigh
competing values, moral commandments and legal norms.


Coll and Shultz 333

careful and continual control over it.” For the former Director of Central
Intelligence, covert action should be held “in readiness until the right conditions
exist.” In his view, this generally occurs no more “than once or twice during an
Administration.”* '

Beyond these issues, Turner also has been concerned about the domestic and
international political crises that have plagued postwar presidents when a covert
action was exposed, To dramatize this danger he cited several examples, most
notably the 1963-1973 CIA interference in Chile. This led Turner to recom-
mend that the United States undertake only noncontroversial covert actions, so
as to avoid political embarrassment. In an editorial concerned with the Reagan
Administration’s secret funding of the Nicaraguan Contras, he asserted:

There are circumstances, I think, in which covert operations are justified and in
which—if they became public knowledge—they would cause little, if any,
controversy. The Nicaragua operation, however, is not one of them. It risks
substantial damage to both the national interest and to the CIA... When the dust
settles on this particular incident, we should decide ourselves whether the price of
limiting covert action to noncontroversial objectives is worth it. I believe that it
is... We would do well to proceed only where there is a good chance that there
would be a national consensus behind that covert action if it became known to
the public.””

This issue of public exposure and political embarrassment has also drawn the
attention of academic and policy specialists concerned with intelligence matters.
For example, Gregory Treverton, who served on the National Security Council
staff in the Carter Administration and later on the National Intelligence Council
in the Clinton Administration, has expressed similar concerns as did Turner.
According to Treverton, before an administration initiates a covert action it
should address the question of whether or not it “could contemplate exposure
in midstream. If it were disclosed, would it be deemed acceptable, by the
American people in particular?”** Treverton’s standard comes very close to the
Turner argument that the United States undertake only those covert actions that
will generate little political debate if revealed.

The test of exposure is directly related to a second guideline proposed by
Treverton—"does the intervention contradict overt American policy?" He
believes that secret operations should be consistent with the stated foreign policy
ofan administration. “For presidents, prudence suggests careful attention to such
‘warning signals as the review process throws up—the view of Cabinet officers,
people in the White House who attend to the president’s interest, and the
congressional overseers as surrogates for public reaction.”2>

These policy dilemmas have led several academic and policy specialists to
recommend that the U.S. severely limit its use of secret operations and, if at all
possible, carry them out openly. For example, Loch Johnson has written that the


168 Legal & Moral Constraints on Low-Intensity Conflict

wrong choice for a number of prudential reasons. As I have argued above,
there is always far more wrong in the world than one nation, even a very
powerful one like the United States, can right. Even among those ills it is
in our power to remedy, our first priorities must be those that directly
challenge our own values and interests or those of our close allies. Among
these first order threats there may be some against which military force
offers an effective remedy and is the only likely solution, but there are others
for which military force is not the best answer. The full set of moral criteria
found in just war tradition provide guidance for making the distinction.

3) Intervention in low-intensity conflict should enjoy a broad measure of
support in the international community and seek to establish values broadly
recognized in that community. It has often been argued in the recent past
that the United States should not try to be the world’s policeman. This
view is valid insofar as it seeks to discourage unsustainable commitments,
imprudent risks to our interests, or reckless reliance on unilateral action. In
the post-Cold War world, however, there is a greater possibility of
achieving substantial international agreement on the kind of activities that
‘warrant an unconventional response, extending, if necessary, to the use of
force across national borders. This suggests that an underlying consensus is
also developing in support of the use of collective action to meet moral
challenges to the international order. These changes should make it possible
for the United States to bring its national power to bear against threats to
international comity. We may be able to attack systematic human rights
violations, State-sponsored terrorism, regional aggression, and the global
traffic in narcotics—not as a lonely paladin—but with the approval and
support of the community of nations.

Finally, all the above presumes that the United States will continue to honor
its democratic heritage and the whole panoply of values which guided its
founding as it confronts the ambiguous challenges of low-intensity conflict.

Notes

+*Professor Johnson is the Director of International Programs at Rutgers University.

1. Prominent examples are the usage of Paul Ramsey (see inffa n. 10 and 11) and the National Conference
of Catholic Bishops in The Challenge of Peace (1983).

2. A prominent example is HOFFMANN, DUTIES BEYOND BORDERS (1981).

3. See O'Brien, The Failure of Deterrence and the Conduct of War, in THE NUCLEAR DILEMMA AND THE
JUST WAR TRADITION 158 (O'Brien and Langan eds. 1986).

4. Thomas Aquinas, Summa Theologica II/If, Q. 40, Art. 1.

5. A sample of such arguments is found in JOHNSON AND WEIGEL, JUST WAR AND THE GULF WAR
91-158 (1991).

6. For fuller development of these arguments, see id. at 3-42.

7. VICTORIA, DE JURE BELLI, section 10, See farther the discussions of Victoria, Grotius, and other
contemporary theorists in JOHNSON, IDEOLOGY. REASON. AND THE LIMITATION OF WAR 208 (1975).


Roundtable Discussion 313
PROF. COLL: Professor Johnson.

PROF. JOHNSON: I liked Professor Reisman’s discussion of the three ways
in which the term “just war” is used. I thought he was absolutely right that all
three uses have been employed here and they’re present in general discussion
outside of our deliberations as well. I also agree that the right use of just war, at
least from my perspective, is the first. But, I would also suggest that the problem
of the ideological use of this set of principles isn’t unique to just war thinking.
We find that whenever we have a set of principles for practical application. As
Professor Coll was talking, I was suddenly struck by the possibility that someone
might at some future time take that wonderful category you introduced which
we haven’t discussed—the use of low-intensity conflict for the purpose of sending
signals—cross that with Professor Reisman’s third use of just war, and we have
low-intensity operations sending ideological signals all over the world for the
purpose of keeping people in line or whatever. That’s about the worst possible
outcome I can imagine.

Talso think we should take seriously what Admiral Harlow said about the need
to get some fairly concrete policy implications out of our thinking. I don’t know
how we can accomplish that, but it is one way, it seems to me, to avoid the
ideological exploitation of the just war tradition.

I was told that the guy who actually drafted the Weinberger Doctrine had
studied at the War College under Donald Davidson, when he was teaching just
war. So it was not accidental that the Weinberger Doctrine can be easily translated
into just war language. That’s one way to get these moral concerns into policies.

The last thing I would say is that just war is a tradition of limitation. That’s
really what it’s all about, It is not principally an effort to invent new justifications
for the use of force. It’s an effort to look at uses of force that are indicated by
political needs, and determine whether they are morally justified.

PROF. COLL: Professor O’Brien.

PROF. O’BRIEN: My response to Professor Reisman would be more or less
along the lines of Professor Johnson’s. I prefer the first use of just war, the
prudential method. The just war doctrine is not substantive. By and large, it’s
procedural and sets up a series of questions to which you must supply answers.
It doesn’t tell you what to do. It asks you to justify what you're going to do. And
the first use of just war that Professor Reisman sketched out is in harmony with
this approach.

Now, cautious as Michael was about the second use, any natural law approach
holds out the possibility that the positive law may be found wanting. That’s the
whole history of natural law, but direct challenges to positive law are rare. So by
and large my reaction to your second use is not so much that the just war dotrine


Index

pragmatic argument for, 336
propaganda, 325-326
proportionality and discrimination standards, 350
realist context, conducting covert activities in, 334-336.
secret intelligence support, 327
Serbia, covert nature of operating, 16
statecraft, covert action as instrument of, 325-350
unconventional warfare, effect of covert nature of, 4
“Crazy states” factor, 258
diplomacy, seeking accommodation through, 275-276
ideological zealotry, challenges posed by, 161, 213,
Credibility of government, importance of, 52-53
Criminal acts and law enforcement
arrest of criminals from foreign jurisdiction, 47-48
Eichmann, seizure of, 102
Noriega, seizure off See Panama
contemporary military force, role of, 271
distinguished, xv
drug trafficking: See Drugs and drug trafficking
just war doctrine applied to, 276-277
nation’s inability to deal with criminal organizations, 141
terrorism as criminal act: See Terrorism and counterterrorism
‘war criminals: See War crimes
Cuba
attempted assassination of Castro, 127
Bay of Pigs invasion: See Bay of Pigs
covert operations of Fidel Castro, 16
illegitimate governments, low-intensity conflicts against, 103
Operation Urgent Fury, 311
US role in intervention, 117
“Cuius regio, eius religio,” 10
Culture and cultural matters
assassination, cultural problems with, 163-165, 213
global values, evolution of universal set of, 221-222
justice as culture specific, 213-214, 220, 227
legitimacy as culture specific, 210
low-intensity conflict, cultural and political constraints, 249-322
politics: See politics and political matters
post-cold war, moral and cultural US environment, 251-264
strategic culture (US) in small wars, 265-271
universal or communal standards, 315
Custom and usage, restrictions imposed on sovereignty, 57-58

D

Deception

American suspicion of use of, 293

disinformation: See Disinformation

intelligence-gathering: See Intelligence and intelligence-gathering

jus in bello principles applied to, 165-167, 194-195, 230-231

means mala in se (evil in itself), jus in bello applied to, 164-165
Decision to use military force (jus ad bellum): See Just war theory or tradition
Declaration of Human Rights (1948), Muslim nations’ refusal to endorse, 127
De facto loss of authority, Congress acting to prevent, 281
Defense

defined within context of international law, 152

self-defense: See Self-defense

365


Coll 13

political institutions. Democratic political systems are adversarial by design. They
foster pluralism of perspectives and interests, and a political process which prizes
combativeness, partisanship, and the pitting of factions against one another. There
are always opposition parties thirsting for political blood, and a vigorous free press
conscious of its duty to promote public debate and eager for fame and profit,
Unless they are faced with an immediate, overwhelming threat, democracies find
it difficult to fashion a coherent foreign policy commanding the solid support of
their contending domestic factions.

Unconventional warfare is an effective instrument of aggression against
democracies and their allies. The subtle, unconventional and generally covert
nature of unconventional warfare avoids violence that crosses that threshold
above which a democratic populace might be rallied to respond. While conven-
tional aggression might tear a democratic society away from the pursuit of
commodious living, unconventional warfare most likely will not. It is also
obvious that the highly sophisticated, technological infrastructures underlying
the economic systems of many democratic societies are highly vulnerable to forms
of unconventional warfare such as terrorism and urban guerrilla warfare.

Moreover, unconventional warfare, as its great theorists and practitioners
always have understood it, usually takes place in the context of a process of
diplomatic entreaties designed to lull its victim into relaxing its defenses. Within
every democratic society there are many individuals of unquestioned integrity
and intellectual acuity who will interpret the adversary’s diplomatic moves, not
as the strategy of Kautilya’s “snake charmer”, but as good faith efforts towards a
reasonable settlement. They will stand up and call for a reciprocal response
involving a degree of good faith similar to that which they imagine the adversary
to have. When resistance arises to their suggestions, many of these individuals
will accuse the government of their own democratic society of being the main
obstacle to peace. The ensuing recriminations, divisiveness, and intellectual
confusion generated by what inevitably becomes an acrimonious and highly
partisan debate further weaken the democratic State’s foreign policy and its
bargaining position versus its adversaries, most of whom have no similar domestic
problems hampering their policies.

While the record of the Western democracies in countering the unconven-
tional warfare waged by the fascist powers in the 1930s is hardly reassuring,"” it
is still an open question whether over the long run democracies are structurally
incapable of successfully responding to unconventional warfare. It may be that,
in spite of their severe handicaps, democracies can rally the requisite determina-
tion, unity of purpose, and political shrewdness necessary for dealing with
unconventional warfare. Modern democracies have an impressive array of policy
instruments with which to tackle the problem, if they choose to act. Their
economic prowess gives them leverage with which to exert costly pressure on
their adversaries. Their technological and military capabilities give them conven-


150 Legal & Moral Constraints on Low-Intensity Conflict

criteria that make up the jus ad bellum and jus in bello, on their interrelationships
and on the priorities among them.

The first thing to say is that within the just war tradition the jus ad bellum has
a certain historical and logical precedence over the jus in bello. That is, the question.
of the right manner of using force does not properly arise until the question
whether the use of force is justified has been settled. Some present-day theorists
appear to me to have got this logic inverted, arguing that contemporary means
of war inevitably violate the jus in bello criteria of proportion and discrimination,
and therefore that no jus ad bellum can exist. This position is sometimes called
just-war pacifism; more accurately, it is pacifism pure and simple, because it
employs a different logic from that of just war tradition.

The second thing to say is that historically and thematically, the first three jus
ad bellum categories — just cause, competent authority, and right intention —
have a claim to being more fundamental than the others. These had priority in
all the medieval sources, including Augustine, the canonist Gratian and his
successors, and Thomas Aquinas, who listed only these three criteria as necessary
conditions for a just war.’ For medieval writers, other jus ad bellum criteria, while
important, had less normative weight. They were either understood as further
elaborations of the ideas of just cause and right intention or were seen to be
prudential considerations that might count against the justice of a war but could
not alone justify the use of armed force.

Similar views were held by the magisterial just war theorists at the dawn of
the modern era: the Spanish neo-scholastic Vitoria and his less well known
colleagues, Molina and Soto; the later moral theologian Suares; and Grotius, to
whose thought is generally traced the theoreticel origin of secular international
law.

Some present-day just war reasoning, as already noted, seems to invert the
logic of the structure established by these great figures. In the debate over the
Gulf War, for example, the spokesman for the United States Catholic Conference
argued against American use of force against Iraq on the grounds that it would
be likely to violate the criteria of proportionality and last resort. Other critics of
the war argued that it would not serve the end of peace.> These are indeed
important concerns to raise, but the weight of just war tradition as a whole calls
for looking first at the question of just cause. Its requirements were satisfied, in
my view, by Iraq’s unwarranted invasion and occupation of Kuwait, violating its
sovereignty and international law. The question next in line of consideration,
that of competent authority, was more than met by United Nations Resolution
636 and its predecessors, as well as by resolution of the United States Congress.
And the desire to restore Kuwaiti sovereignty and prevent Iraq from further
aggression was clearly in the spirit of right intention® Only after these consider-
ations have been satisfied do the remaining jus ad bellum conditions come into


258 Legal & Moral Constraints on Low-Intensity Conflict

1. Perhaps the most serious threat to security in the post-Cold War world
arises from the intersection of three distinctively modern phenomena: crazy States
(Libya, Iraq, Iran, etc.) + weapons of mass destruction + ballistic missile
capability. This lethal equation puts great stress on those who wish to define a
just casus belli as simply “defense against an attack already launched”—and
precisely because of the “crazy:State” factor. No morally serious just war analyst
would defend a preemptive strike on the French force de frappe or on Britain’s
nuclear submarine pens. Why? Because we have confidence in the regimes that
have launch control over those nuclear weapons. We have no such confidence
(to put it gently) in the leadership of Libya, Iraq, or Iran. How, precisely, does
this effect the moral equation?

I would argue that our knowledge of the intentions of the leaders of such
regimes has to be weighed carefully into the moral calculus. Thus the issue is not
just one of capabilities. It is capabilities plus intentions, measured against a calculus
of relative dangers and consequent American responsibilities. Preemptive action
runs certain risks, to be sure. But is there not a grave moral responsibility assumed
by those who would risk massive civilian casualties, and massive regional
destabilization, by leaving a man like Saddam Hussein with an intact nuclear
capability?

2. Similar questions arise when one faces the question of preemptive action
against terrorists. There is something inherently implausible about the moral
weight of the claim that one can only act militarily against terrorists in “defense
against an attack already launched.” The tactics of hit-and-run (or hide-the-
bomb-in-the-suitcase-and-run) are the essence of terrorism, which has an
essentially political goal rather than the goal of territorial occupation that we
associate with the classic cross-border attack. Our intuitive sense that this is too
narrow a concept of “just cause” should lead us to consider the possibility of a
careful expansion of the “just cause” criteria. Were this to be done, I should not
think it impossible to refine our concept of “just cause” to include (proportionate
and discriminate) pre-emptive action against terrorist capabilities—to prevent the
deaths of innocents on a large scale, and to enforce some minimum ground rules
of acceptable international behavior in an inescapably interdependent world. But
we have to do that refining in public: and in this case the “public” is the
international community as well as the American body politic. And we have to
do it in such a way as to prevent a general erosion of the moral-cultural boundaries
that the just war tradition has laid down for centuries.

3. Perhaps the hardest case under “just cause” in the post-Cold War world
has to do with situations in which human rights are being massively and flagrantly
abused, and there seems to be no indigenous force capable of ousting the brutal
regime committing those abuses.

It should be said here (and the same caution applies to the non-proliferation
and counter-terrorism scenarios as well) that one should not lightly erode the




832 Legal & Moral Constraints on Low-Intensity Conflict

mid-1970 events in Portugal: “I can also conceive of circumstances, such as those
existing in Portugal today, where our discreet help to democratic political parties
might avert a forcible take-over by a communist minority.”

Conduct Noncontroversial Covert Action Sparingly And Only When It Is Consistent
With U.S. Foreign Policy

A third set of views focuses on the following interrelated arguments: one,
secret operations rarely achieve anything meaningful; two, they create great
political embarrassment when exposed; and three, covert action has frequently
been inconsistent with our publicly stated foreign policy.

On the basis of the above, the following guidelines have been proposed:
involve the U.S. only in noncontroversial covert actions; use the instrument
sparingly; make all secret operations consistent with overt foreign policy; and, if
at all possible, carry out all covert actions openly. These arguments have been
put forward most notably by the former Director of Central Intelligence in the
Carter Administration, Admiral Stansfield Turner, and by several public policy
specialists on intelligence matters.

In Secrecy and Democracy, Turner observed that “everyone involved [with
intelligence matters] should be required to read the history of covert action to
be reminded of how little it can actually accomplish.””* His study of the postwar
American experience led to the conclusion that the gap between what covert
action promised and what it actually achieved was rather wide. Nevertheless,
Turner saw the “quiet option” as very seductive to Presidents and their advisors,
especially when a particular situation begins to go sour. He described just such
a sequence of events during the Carter Administration:

[Secretary of State] Vance was unenthusiastic about almost all covert actions and
firmly opposed all paramilitary ones. [National Security Advisor] Brzezinski was
an advocate and [Defense Secretary] Brown was in between. The wide difference
between Vance and Brzezinski reflected the philosophical gap between them.
Brzezinski was much more of an activist, but when it came to intelligence
operations he had far less experience than Vance, a former Deputy Secretary of
Defense. Brzezinski held unrealistic expectations of what could be achieved by
covert action . . . Yet not appreciating that, Brzezinski repeatedly called for more
quick covert actions . . . In time Brzezinski prevailed, simply because there was
frustration in the White House over continuing Soviet aggressions. Well before
the end of the Carter administration in early 1981, a wide variety of covert
operations were in place.”

Turner viewed the seductive nature of covert action as dangerous. While he
concluded that it is “something our nation would never forsake entirely,” he
argued that we must sharply define the boundaries to “be placed around it, [to]
determine what should and should not be attempted, and ensure that there is


254 Legal & Moral Constraints on Low-Intensity Conflict

while that is nothing to be sneered at, it does not translate into the capacity to
bend the grand politics of nations to one’s will (or, perhaps less brutally, to shape
the basic trend lines of world politics), The Soviet Union no longer exists, and
the successor Commonwealth of Independent States is in no position to do much
of anything beyond trying to dig out from under the economic, ecological, and
spiritual rubble of the totalitarian system. China is quite probably headed for a
period of internal disarray, after the collapse of the Maoist/Dengist gerontocracy.
The United Nations remains what it has been since 1945: a stage on which a
script written elsewhere is played out.

In sum, the end of the Cold War has not brought us back to the Europe of
the 19th century, i.e., a multipolar world of five or six great powers; nor has it
ushered in a new era of internationalism in which international legal and political
organizations are the primary actors and the primacy political reference points in
world politics. Rather, the end of the Cold War has seen the emergence of a
unipolar world in which there is but one Great Power — the United States —
with the requisite combination of political, ideological, cultural, economic, and
military strength to determine, if it chooses, the ground rules for the immediate
future of world politics and economics. Moreover, as the Gulf crisis and the
debacle in Yugoslavia should have taught us, the alternative to American
leadership in the world is not multipolar leadership but chaos,

The key question, of course, is, whether the United States — which is to say,
the American people — will choose to exercise the leadership role which history
has thrust before us.

I cannot tell you whether we will, in fact, accept the burden of leadership in
a unipolar world. But I can say, with some assurance, that we will most certainly
not take the lead in shaping the ground rules of international life in the post-Cold
‘War world until we are summoned to do so by our political leaders. Which, to
put it briefly, we have most assuredly not been summoned to do.

The failure of U.S. political leadership on these questions in the year since
Desert Storm has been comprehensive. The national Democratic Party has never
grappled seriously with its leadership's massive misreading of the signs of the times
from the early 1970s on. There has been no intellectual and moral reckoning
with the pattern of failure exhibited by Congressional Democrats on five of the
defining foreign policy issues of the past decade: the nuclear freeze proposal, the
question of economic sanctions against South Africa, support for the Nicaraguan
democratic resistance, assessing the reform communism of Mikhail Gorbachev,
and “giving sanctions a chance” in the Gulf. Until that reckoning takes place —
and there has been very little of it evident on the campaign trail these past several
months — we need not expect the Democratic Party to call the American people
to the leadership role that could be theirs in a unipolar world,

Nor should it be thought that things are in much better shape on the other
side of the partisan fence. President Bush’s celebration of victory in the Cold


Chapter IX

Low-Intensity Conflict in the
Post-Cold War World:
The American Moral-Cultural Environment

by
George Weigel*

|. Introduction: Taking Chesterton Seriously

‘he public debate on American policy options that took place between the

Traqi invasion of Kuwait on August 2, 1990 and the suspension of
Operation Desert Storm on February 28, 1991, was loud, raucous, impassioned,
sometimes confused, often insightful — in a word, “democratic.” Moreover,
that debate was frequently couched in explicitly moral terms drawn from the
classic categories of the just war tradition. Cabbies and subway riders, barbers
and bartenders, talk show hosts and talk show callers, op-ed pundits and religious
leaders, Members of Congress and Executive branch officials all argued in terms
of questions like these: Was ours a just cause? What were our intentions—what
‘were we really after? Who was the authority competent to authorize the use of
force against Iraq: the President, the President authorized by Congress, the
President authorized by the United Nations? Did we have a reasonable chance
of success? Could we discriminate between combatants and noncombatants? Was
military force a last resort?

Not all of the participants in that six-month long public seminar argued as
wisely as they might have done.' But let us not dwell here on the irony of a
situation in which the Chairman of the House Armed Services Committee had
to explain the meaning of certain key just war criteria to the archbishop chairing
the U.S. Catholic bishops’ international policy committee (and on national
television!). Rather, let us focus on the fact that the American people and their
political leaders instinctively reached for just war categories — which is to say,
for moral categories — in their attempt to sort out the options available to the
United States after the Iraqi invasion, occupation, and attempted reduction of
Kuwait. Indeed, the instinctive consensus that these were the relevant categories
‘was so widespread that when other rationales were bruited — such as Secretary
of State James Baker’s defense of the possible use of U.S. military force to eject


82 Legal & Moral Constraints on Low-Intensity Conflict

our conduct—because there will still be forces around the globe anxious to draw
the wrong conclusions and to share their doubts with others. The cause of world
freedom and democracy has never been more promising. Its success will depend
in part upon how successful we are in living up to our potential as a nation
dedicated to peace and justice.

Notes

*Professor Tumer is Associate Director, Center for National Security Law at the University of Virginia Law
School.

1, 12 WRITINGS OF THOMAS JEFFERSON 418 (Mem. ed. 1904) [hereinafter WRITINGS OF THOMAS
JEFFERSON]. In 1963, former Secretary of State Dean Acheson told the American Society of International
Law in connection with the Cuban Missile Crisis: “In my estimation, however, the quarantine is not a legal
issue or an issue of international law as these terms should be understood. . . . [L]aw simply does not deal with
such questions of ultimate power. . . . The survival of States is not a matter of law.” at the 57th annual meeting,
of the American Society of Law (April 25-27, 1963) in Proc. Am. Soc’y Int'l L,, 1963 at 13-14..

2. “In the last resort almost the whole of duties of States are subordinated to the right of self-preservation.”
HALL, INTERNATIONAL LAW 322 (8th ed. 1924).

3. 8 WRITINGS OF THOMAS JEFFERSON 12.

4,8 id. at 11.

5. 3 id. at 228-29,

6.8 id, at 219.

7. 15 id. at 95.

8. 15 id. at 478,

9. U.N. CHARTER art. 2, para. 1.

10. For example, the five permanent members of the U.N. Security Council are invested with veto powers
not shared with other States. U.N. CHARTER art, 27, para. 3.

11. For a brief statement of the writer's views on this issue, see Tumer, Verdugo II Reconsidered: The Law
and Policy of Rendition, 13 (6-8) A.B.A. Law and National Security Intelligence Report 3 (Summer 1991).

12,91 CONG. REC. 166 (1945).

13. By this I mean that we should not allow an ineffective legal regime to guarantee victory to lawbreakers,
Even were we to decide to resort to the “rules of the jungle” in deciding to use force, it would be imperative
that we continue to abide by the fundamental rules of civilized moral conduct which regulate the manner in
which we use force. Thus, the fact that Iraqi forces murder children and rape civilians would not justify such
abuses by American forces.

14, See Turner, Intemational Law, the Reagan Doctrine, and World Peace: Going Back to the Future, Wash. Q.
119 (Autumn 1988).

15. This approach is not without risks, Some legal scholars will perhaps argue that the United States loses
its right to act in self defense once the Security Council takes up the issue, but the Charter text says self-defense
is permissible “until the Security Council has taken measures necessary to maintain international peace and
security.” I would argue that if the Security Council’s measures do not accomplish their stated objective, or if
ultimate Security Council action is blocked by a veto, then the Council will have not “taken measures necessary
to maintain international peace and security” and the right of self-defense is not vitiated.

16. See text accompanying n. 1.

17, FRIEDMAN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 197 (1964).

18. See, e.g., Department of Defense, Terrorist Group Profiles 3 (1988).

19, See text accompanying n. 12.

20. Much of this discussion is premised upon the idea that the “armed attack” language of Article 51 of
the Charter narrows the traditional right of self-defense and precludes a forceful response to certain types of
low-intensity aggression. In reality, I believe that analysis to be inaccurate. If I am correct, it should be
unnecessary to even raise the equity argument. However, there is language in the Paramilitary Activities Case
(Nicaragua v. U.S.) that supports a more narrow interpretation of Article 51, and it is with that in mind that I
raise this alternative approach. The doctrine of stare decisis does not apply to the ICJ decisions, and I shall not
therefore go into a detailed critique of this case. My views are set forth briefly in Turner, Peace and the World
Court: A Comment on the Paramilitary Activities Case, 20 Vand. J. Transnat’l L. (1987).



124 Legal & Moral Constraints on Low-Intensity Conflict

adversaries, but, on their objectives and whether those objectives are entitled to
some accommodation. He urges in particular, that we rethink certain settled ideas
including our commitment to fixed borders and the notion that low-intensity
conflict is new. He also encourages us to resist the temptation of unipolarity in
favor of multilateral decisionmaking.

This is a very rich range of subjects that have been presented to us for
discussion. It’s my pleasure now, to open the floor for discussion.

MR. COLLINS: I only have one quick question. Would you please talk a little
bit about the pros and cons of the U.S. support for coups which violate the
sovereignty of foreign countries? We have done this a number of times in recent
years.

PROF. TURNER: This touches on Tom’s disagreement with my view that
the U.S. has been historically opposed to intervention. I still feel I’m right on
that. Early in my paper, I noted that after reviewing a draft of the Monroe
Doctrine, Thomas Jefferson wrote to the President that we ought to take
advantage of this opportunity to declare our opposition to the practice of
intervention by one State in the internal affairs of another. I think that has
continued to be a principle held dearly by the American people. Even when the
Roosevelt administration gave the Doctrine an interventionist cast, it was in
response to British threats to employ military means to compel Latin American
debtors to honor their obligations. The role of hemispheric policeman, assumed
to forestall transatlantic meddling by the European powers, was repudiated by
the Clark Memorandum. My argument is, yes, the United States has intervened,
particularly in the post-World War II era, but for the most part, it has intervened
ina counterbalancing manner. That is to say, to level the playing field. The classic
case is our intervention in Chile against Allende. What is not well known, but
is fairly easy to document, is that the Cubans were pouring money and influence
into supporting Allende before he came to power. My sense is that what the
United States was attempting was to balance the playing field to promote the
chances of a democratic opposition with newspapers, and parties and so forth.
It’s troublesome any time you do it. Certainly, we ought never to overthrow
other governments because we don’t like their economic philosophy. But during
the conflict with the Soviet Union, when the Cominterm or Leninist States were
pouring money in on one side, I don’t think it was immoral for us to go in on
the other side to try to balance things out, just as a general principle.

PROF. REISMAN: So Professor Turner’s answer to Mr. Collins’ question is
that intervention is justified when it is done responsibly to create a level playing
field.


Panel Discussion 275

it’s a case of thinking through the risk/gain ratio. But this is also a transnational
problem. We can’t make these decisions by ourselves in most cases.

FR. WINTERS: Can I ask Carnes to talk a little more at length about the claim
that the Panama war was “low-cost but high-payoff’; what does that mean?

MR. LORD: Well, that was really in the context of the argument you often
hear, from military people in particular, that in the Vietnam War we wasted an
incredible amount of resources and lives for a State that was not at all propor-
tionate to it.

In Panama, clearly, there was a much greater proportion between the
investment that we made in the State and its strategic value. I think my point
was that we can conduct these kinds of operations in a cost-effective and also a
morally acceptable way so that they’re politically acceptable in this country and
constitute a strategic success, which I think Panama was.

FR.WINTERS: Well, how do you deal with the fact it was condemned
immediately by the OAS? In the long-term that’s going to bear a cost to the
United States.

MR. LORD: Well, I think the regional effects were much less than many
people thought they would be at the time. Today, I don’t see any really negative
fallout in the region. Most Latin governments pretty much, from a fairly early
stage, accepted the action as a reasonable one.

FR. WINTERS: Why do you say that?

MR. LORD: That's the way I read it. I’m not a Latin American expert, but I
think Panama failed to provoke the kind of outcry that has greeted some of our
other Central American involvements.

RADM HARLOW: Any other comment or question?

PROF. FARER: George Weigel’s reference to “crazy States” gives me a
chance to underline a point I tried to make yesterday. I think the whole discussion
of low-intensity conflict is fundamentally skewed when it assumes that States or
groups whose positions are initially antagonistic to ours ought to be dealt with
as permanent enemies, and that what we should worry about is the techniques
needed to remove them as obstacles to the achievement of our objectives.
Characterizing our opponents as crazy, which is not to suggest that there are no
crazy regimes, is one of the ways of avoiding having to think about the question
of whether parties who initially are our adversaries may nevertheless have claims


Turner 75

Ina developing process of coercion there may be a culminating point that creates
reasonable expectations on the part of a target State that an immediate military
response is indispensable (that is, necessary) to the protection of its own existence—
to safeguard its important bases of power from destruction. Because of the
immediate danger of destruction, the common interest in authorizing self-defense
in the form of a proportionate military response has long been recognized. Law
cannot reasonably ask and expect a target State to wait like a sitting duck to see its
own destruction in the face of such danger."

He continues:

A focal point of contention in applying Article 51 of the Charter relates to the
wording, “an armed attack.” Does it mean that self-defense must always wait for
an actual armed attack? Or do certain circumstances warrant what is known as
“anticipatory” self-defense? The question is not a matter for mere academic
exercise but a practical matter of grave concern, one of common interest and
human survival in the nuclear age. The U.S. quarantine of Cuba during the missile
crisis in October 1962 and Israel’s destruction of an Iraqi nuclear reactor in 1981
both raised this vital question.

Two divergent views exist. The first takes a textualist view in stressing that “armed
attack” means “only ifarmed attack,” and unless and until there is an actual armed
attack or process of attack, the target State cannot respond militarily in self-defense
even in the face of “imminent danger.” The second view holds that the U.N.
Charter is not a suicide pact and that the target State cannot be expected to be a
sitting duck awaiting its own destruction in this nuclear age even if a process of
attack has not begun. It adds that Article 51 was designed to reaffirm, not to curtail,
the customary right of self-defense. Recent State practice would appear to support
the latter view, although many disagree."

This problem is particularly apparent when hostilities are likely to involve
nuclear, bacteriological, biological, or other so-called “weapons of mass destruc-
tion.” Must a State wait until an actual attack takes place—an attack which might
wipe out in moments a large part of its population and leave it incapable of
mounting a meaningful defense of its territory—before it may lawfully come to
its own defense?

Admittedly, this is a very troublesome doctrine, for if States are permitted to
attack their neighbors pursuant to a subjective belief that they might soon be
themselves attacked it is difficult to see how international peace can be sustained.
Indeed, modern scholarship on the origins of World War I confirms this risk. It
now appears that Germany intentionally sought to provoke Russia to mobilize
defensively so that a subsequent German invasion could be “justified” as a
defensive response to Russian “ iageression’ "—a strategy designed to persuade
Great Britain to remain neutral."

At what point may a State lawfully take “defensive” measures in response to
a military buildup on its borders or other evidence of an impending attack?
Professor Henkin, a critic of the theory of “anticipatory self-defense” who


Panel Discussion 299

us from taking the only effective approach to low-intensity conflict, which is an
integrated blend of economic, political and psychological elements.

JUDGE SOFAER: I think you raise a very fundamental problem. Here’s the
way that I would look at it. Let’s say we learned that Pakistan had permitted one
of its nuclear devices to be moved up across its borders into Iran, where it had
fallen into the hands of the Hezbollah through the Revolutionary Guard. Clearly,
the United States should take action before someone uses that bomb because the
Revolutionary Guard and Hezbollah have utilized whatever armaments and
explosives they’ve managed to get hold of. If you can go to bed at night as a
national security planner for the American people, and allow that to continue,
you’re not doing your job. You are not protecting the American people. Now,
you have to suffer the consequences. I’m very uncomfortable with this idea that
we're superior to foreigners, that we can cross their borders with impunity. I find
myself very uncomfortable with that premise as an institutional matter. I’m not
going to change the rules to allow us complete freedom. We're going to have
to act, we're going to have to report that act, and we’re going to have to protect
ourselves the best we can, politically, as a result of having done it. The ideal way
to do this, harking back to the Security Council and its potential, is to create a
nuclear regime that we can all respect. Now, we’re seeing something that we
can certainly respect a lot more than anything before with the current U.N.
resolutions relating to Iraq. They state specifics. We're seeing some real profes-
sionals out there. For bureaucrats, they’re performing heroically. If we can get
the Security Council to create regular, routinized inspections of nuclear facilities
and materials around the world, we might see real results on the ground. And I
think the Security Council process is the most promising vehicle that we have
ever had.

RADM HARLOW: In response to Michael’s question, I would also like to
add that I think the April, 1986 air strike on Libya provides an interesting case
in point on the application of legal principles underlying low-intensity conflict
operations. Up until 1986, the United States had treated international terrorism
as a law enforcement matter. The thrust of U.S. policy was the apprehension and
bringing to trial of terrorists who had attacked U.S. citizens.

This did not and could not , however, deal with the question of State-spon-
sored terrorism. During the preceding decade, the effectiveness of terrorist
organizations was greatly enhanced by the support given to them by countries
such as Libya. There is ample evidence that Libya provided training camps,
logistic support, passport documentation and other support to dissident groups
who proclaimed an intent to conduct terrorist strikes against innocent Americans
and citizens of other countries. Certainly, the air strike against Libya was beyond
the scope ofa traditional law enforcement action. Rather than view the air strike


O'Brien 203

20, Compare WALZER, JUST AND UNJUST WARS 101-8 (1977), with KISSINGER, WHITE HOUSE
YEARS 842-918 (1979); and FRANCK & RODLEY, AFTER BANGLADESH 275-305.

21, War Powers Resolution Pub. L. No. 93-148, 87 Stat. 555 (1973),

22. On practice conceming the War Powers Resolution see: FISHER, CONSTITUTIONAL CONFLICTS
BETWEEN CONGRESS AND THE PRESIDENT 260-80 (3rd ed. 1991); GLENNON, CONSTITUTIONAL
DIPLOMACY 87-122 (1990); TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN
‘THEORY AND PRACTICE 47-91 (1983).

23, Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat.3 (1991).

24, SUMMERS, JR., ON STRATEGY 12-13, 17-19 (1982).

25. WALZER, JUST AND UNJUST WARS 98-101 (1977).

26, Legality of United States Participation in the Defense of VietNam, Memorandum Of Legal Advisor of
Department of State (Leonard Meeker), March 4, 1966, Department of State Bulletin 54 (1966) 474.

27, James T. Johnson suggests that there may be warrant for reviving the classical just war justifications for
‘wars to punish wrongdoing and retake something wrongly taken Johnson, supra, at 147.

‘This possibility is seldom even mentioned by contemporary just war analysts. Church documents such as
the 1983 American Catholic Bishops Pastoral, The Challenge of Peace, restrict just cause to self-defense, clearly
implying self-defense against armed aggression.

28, Convention on Genocide, U.N. GAOR 3d Sess. (I), Resolutions at 174; U.N. Doc. No. A/810;
1949).
es Department of the Air Force, Intemational Law - The Conduct of Anned Conflict and Air Operations, AFP
110-31, 1-5-6 (1976).
30. Td. 1-6.
31. See, e.g, WALZER, JUST AND UNJUST WARS 153, 155 (197). Walzer’s version of the principle of
double effect is as follows:

(1) The actis good in itselfor at least indifferent, which means for our purposes that itis a legitimate
act of war,

Q) The direct effect is morally acceptable—the destruction of military supplies, for example, or
the killing of enemy soldiers.

(3) The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil
effect is not one of his ends, and, aware of the evil involved, he secks to minimize it, accepting costs
to himself,

(4) The good effect is sufficiently good to compensste for allowing the evil effect; it must be
justifiable under Sidgwick’s proportionality rule.

32. I explain the debate on discrimination and my position in O'BRIEN, THE CONDUCT OF JUST AND
LIMITED WAR 42-55 (1981); LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO 281-4 (1991);
‘The Hague Convention Respecting the Laws and Customs of War on Land (1907).

33, Department of the Army, The Law of Land Warfare, FM 27-10 § 52.5, at 23 (1956).

34, Id, at § 49, 50, at 22.

35. Id, § 50, at 22.

36. Id, § 49, at 22

37, ROMMEN, THE STATE IN CATHOLIC THOUGHT 473 (1945); MESSNER, SOCIAL ETHICS 600
(Doherty trans. 1965).

38, O'BRIEN, LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO 58, 167-8 (1991).

39, S/RES/611 (1988).

40, O'BRIEN, LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO 15-18 (1991).

41, Id, at 18-26,

42, Id, at 37-41.

43, Id, at 112-14,

44, Id, at 102-112.

45, Id.

46. See Bowett, Reprisals Involving Recourse to Armed Force, 66 Am. J, Int'l L. 1-36 (1972); Barsotti, Armed
Reprisals, in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 79-110 (Cassese ed. 1986);
O'BRIEN, LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO, 99-125 (1991).


Winters 177

despicable despot/drug trafficker. Military victory was swift, yielding a prisoner
in the docks at Miami awaiting the judgment of his non-peers.

What were the consequences of this perhaps precedent-setting engagement
in low-intensity conflict? At Congressional Hearings in July, 1991, the unani-
mous judgment of witnesses was dismal. Eva Loser (Fellow, The Americas
Program, Center for Strategic and International Studies), captured the spirit of
the hearings in her assessment: One-year-after-the-invasion-type articles trum-
peted the cynical joke within Panama that General Noriega has been replaced
by “General Discontent.”!” Other witnesses concluded that neither the judicial
process, the national administration, the legislature, the new Public Defense
Force, nor the economy is functioning. To add a dash of irony to this assessment,
Dr. Richard Millett of Southern Illinois University adds that a notable conse-
quence (or sequel) to Operation Just Cause has been the emergence of an
exacerbated domestic drug problem in Panama.'® Additionally, the witnesses
warned the Subcommittee that Panamanian dependence on the U.S. has been
heightened, and the U.S. responsibility for the failings ofthe new government which
it installed during the invasion was cited as a claim for further reform intervention
and additional financial support.

Even before these wholly predictable indigenous consequences became evi-
dent, the Organization of American States on December 23, 1989 in an
unprecedented resolution, condemned the invasion by a vote of 20 to 1.9 The
response of the U.S. State Department was: “We are disappointed that the O.A.S.
missed an historic opportunity to get beyond its traditional narrow concern over
non-intervention. The resolution is unbalanced. It does not cite the root
problem—Noriega—and it fails to recognize the threat to Americans.”

I am inclined myself to believe that the condemnation of the invasion by
twenty Latin American governments is much closer to the genius of the just war
tradition than the U.S. State Department deploring of the OA.S.’ “traditional
narrow concern over non-intervention.”

Afterword

Ethical Considerations Relevant to the Possibility
of Low-Intensity Conflict Used to Resolve
Problems of State-Sponsored Terrorism or Proliferation
of Weapons of Mass Destruction

Much less problematic ethically than the use of force to depose dictators or
drug traffickers is the possibility of such limited military response to State-spon-
sored terrorism or proliferation of nuclear weapons.

(1) State-Sponsored Terrorism: The Government Sponsored or

Supported Use of Force Against Civilians of Other Nations. By just war


336 Legal & Moral Constraints on Low-Intensity Conflict

an instrument of last resort. War is but one arrow in the quiver of the statesman.
(covert action is another). Politics and policy saturate all aspects of war. Thus, it
makes no sense to talk about military victory without including the achievement
of policy objectives. One cannot create war plans without political guidance that
details the purpose of the war and the objectives to be accomplished. The
theoretical parallels between Clausewitz and the Gelb-Codevilla position on
covert action, as described above, are apparent. They also are in the tradition of
post-1945 realism.

Students of post-World War II American foreign policy have argued that
covert action has been employed by Presidents within the context of realism.
From the Truman Administration to the present, proponents of realism have
asserted that covert action, as well as overt forms of intervention, were justified
so long as these activities were in support of “the national interest” of the United
States. The statesman acting on behalf of the national interest was to follow a
standard of conduct different from that found within a democratic polity. This
is sometimes referred to as a pragmatic argument. According to Michael Joseph
Smith:

[Bly urging an ethic of responsibility and prudence, the realists sought to provide
a general answer to the recurrent and perhaps ultimately insoluble moral dilemmas
of statecraft . . . Realists have cleared away the easy optimism of the interwar
idealists and exposed the illusions of facile liberalism. They have reminded us that
we live in a world of states that claim our highest loyalties and provide a context
of order . . . From Weber on, realists have insisted on the inescapable responsibility
of power and have urged statesmen and citizens to apply an ethic of responsibility
to the moral judgment of state behavior."

How does this relate to the post-World War II American use of covert action
as an instrument of statecraft? If we look back to the immediate years following
the end of that war, the answer lies in the then emerging Soviet challenge.
According to Ray Cline, former CIA Deputy Director for Intelligence, several
senior officials in the Truman Administration “argued that the United States had
to fight back covertly against widespread political subversive efforts sponsored
by the Soviet Union in Germany, France and Italy.” Thus, the CIA came to be
involved in covert action “under pressure from leading U.S. officials of the day
to support basic U.S. foreign policy.”

Covert Action and the Origins of the Cold War

An examination of the early history ofthe CIA concurs with Cline’s statement.
Although President Truman initially rejected the need for a centralized intel-
ligence service in peacetime and signed an executive order on September 20,
1945, dissolving the Office of Strategic Services, he quickly changed his mind as


PREFACE

In a book such as this, it is essential to start out with a definition of
“low-intensity conflict.” The term is far from precise, and so are any of the
numerous replacements offered for it. This should not be surprising. Despite the
hankerings of many political scientists to the contrary, the reality of human
conflict and war is difficult to categorize into neat, easily distinguishable
phenomena. The standard definitions offered by civilian or military planners and
their doctrine manuals suffer from being designed often more with an eye to
bureaucratic turf preservation than intellectual coherence or clarity. Hence, the
best one can do is follow Aristotle’s injunction to any would-be political scientist
in his Ethics, and aim as well as possible, realizing all along that any definition
will be less than fully satisfactory by leaving out some dimensions of the problem.

In general, this book uses the term “low-intensity conflict” to describe
conflicts other than those in which two or more States use as the preponderant
mode of military operations their regular, uniformed armed forces directly
against each other. Under this criterion the Vietnam War would be considered
a “mixed” conflict in which conventional warfare alternated with “unconven-
tional” or “low-intensity” modes of conflict. In low-intensity conflicts either
one of the primary actors is a non-State entity, or the States involved use as the
principal means of coercion against each other instruments of violence short of
their regular armed forces, such as guerrilla warfare, terrorism, subversion,
assassination and coups d’état. Because this type of warfare is different from the
“conventional” use of regular armed forces against each other, it makes sense to
use the term “low-intensity conflict” interchangeably with “unconventional
warfare”, even if this usage departs from that in some of the military manuals.

Low-intensity conflict is intensely political. At the strategic, and even tactical
level, political considerations guide its logic with greater force and thoroughness
than is the case with many conventional conflicts. This also differentiates
low-intensity conflict from a resort to violence that is non-political in nature,
such as some types of criminal activity or social turmoil that lack an underlying
political objective as the chief guiding compass. Beyond these general criteria it
is difficult to go much further without either narrowing the definition excessively
or else making it so broad as to deprive it of usefulness.

When the low-intensity conflict symposium out of which this book grew
was held in April of 1992, Republican control of U.S. foreign policy was in its
twelfth year. One result of this long period of dominance by a single party was
that the central assumptions of the foreign policy debate and much of its
terminology had come to reflect conservative responses to the challenges of the
Cold War. The recent history of the expression “low-intensity conflict” provides
an interesting demonstration of this trend. Throughout the seventies and into


Turner 81

self-interest with the weight of its nuclear missiles, the predictable reaction in
Eastern Europe and other fledgling democracies may well include the discrediting
of the system of government for which the United States stands. If we — even
for the best of motives — signal to the world that we intend to intimidate our
‘way to success, then we would be wise to stop talking about defense cuts. Just
as our free market makes adjustments when demand exceeds supply, we can
expect the world political system to seek to compensate for an American-domi-
nated imbalance which is perceived as posing long-term threats to other States.

Our resources are limited, and we could not do for the former Soviet Union
what we did for Japan in the late 1940s — even if we wished to attempt such a
feat. However, the world’s perception of our goals and temperament will be as
important as our foreign aid. Now is the time not only to take the moral high
ground, but also to make sure that the moral foundations of our policies are
carefully understood around the world.

The 1990-91 Gulf crisis provided hope that the essentially stillborn U.N.
Security Council might be rejuvenated and permitted to play a central role in
world peacekeeping. I believe it is in our interest to promote that end. The dream
of the Charter is not “balance of power” politics, but rather the politics of peace.
Every potential victim of aggression should be able to expect that the entire world
community is prepared to come to its defense in the event of armed aggression.
No State, not even the United States of America, will ever be so powerful, or
so foolish, that it would commit armed aggression against its neighbors in the
face of such odds. If collective security can work, there will be no further need
for balance-of-power alliances, and a peaceful United States might be permitted
to continue on its way without the need for arms races or new grand alliances.

No nation is likely to pose a direct military threat to U.S. security in the
foreseeable future.!2” If we can maintain a reasonable amount of credible power,
and couple it with world-wide perceptions that America is just and honorable,
our ability to influence world events will be enhanced dramatically. Under such.
circumstances, international law could expand dramatically—providing in the
process not only for multilateral responses to low-intensity aggression and
terrorism but even for controlling international narcotics trafficking.

The future, in short, is bright and extremely promising. Opportunities for
positive developments in the law abound. But the future is uncertain, and it will
be determined by a large degree by how other States view the United States.
Policymakers must keep this fact in the forefront of their minds. Even relatively
minor departures from the agreed norms of behavior might well be mis-
understood at this point. We will not be the only actor shaping the world’s new
future, but we may well be the most important, Let us not abandon those rules
of fairness and honor which once set the United States apart as a beacon for lovers
of liberty around the world. And to that end let us redouble our efforts to keep
our own people and the world community informed about the rationale behind


350 Legal & Moral Constraints on Low-Intensity Conflict

#5 Covert counter-terrorist operations must abide by traditional principles of discrimination
and proportionality.

In countering international or state-sponsored terrorism, covert paramilitary
operations have a place. However, since this involves the use of force, such
operations should be carried out within the stendards of discrimination and
proportionality applicable to the overt use of force, While the United States has
the right of self-defense, this does not justify using the same tactics as the terrorists.
Covert paramilitary operations constitute an important counterterrorist measure,
but they need to be undertaken within the general boundaries of the law of armed
conflict so as to retain their legitimacy in the eyes of the American public.

Notes

1. HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS 15 (1981).

2. DIAMOND, THE DEMOCRATIC REPUBLIC 613 (1971).

3. Shultz, Covert Action and Exeeutive-Legislative Relations: The Iran-Contra Crisis and Its Aftermath, 12 Harvard
Journal of Law and Public Policy 649 (Spring 1989).

4, Id, at 649-650.

5. Id.

6. Kennan, Morality and Foreign Policy, 65 Foreign Affsirs 214 (VVinter 1985/86).

7.1.

8. Should the U.S. Fight Secret Wars?, 269 Harper's Magazine 37 (Sept. 1984).

9. Id.

10. Id. at 35.

11, U.S. Congress, House Permanent Select Committee on Intelligence, Subcommittee on Legislation,
Hearing on H.R. 1013, H.R. 1371, and Other Proposals Which Address the Issue Affording Prior Notice of Covert
‘Aations to the Congress, 100th Congress, 1st Session (Washington, DC: Government Printing Office, 1987), at
235-36.

12. HALPERIN, THE LAWLESS STATE 263 (1976).

13. Godfrey, Ethics and Intelligence, 56 Foreign Affairs 632, 635 (April, 1978),

14. Geyelin, Covert Means Last Resort, Washington Post, May 31, 1983, at A21.

15. ROSTOW, THE DIFFUSION OF POWER 213-214 (1972).

16, TREVERTON, COVERT ACTION 221 (1987).

17. I.

18, U.S. Congress, Senate Select Committee to Study Governmental Operations With Respect to
Intelligence Activities, Covert Action, vol. 7, 94th Congress, ist session (Washington, DC: Government Printing
Office, 1976), at 51.

19. Id.

20, Id at 53.

21. Hd.

22. Church, Covert Action: Swampland of American Foreign Policy, 32 Bulletin of the Atomic Scientists 11
(February, 1976).

23. Id.

24, TURNER, SECRECY AND DEMOCRACY 278 (1985).

25. Id. at 88.

26. Id. at 89.

27. Tuer, From an Ex-CIA Chief: Get Out of Nicaragua, Washington Post, April 24, 1983, at C4,

28. Treverton, Imposing a Standard: Covert Action and American Democracy, Ethics and International Affairs
31 (Nov. 3, 1989).

29. Supra n. 16, at 216-221.

30. Id. at 217.

31, JOHNSON, AMERICA’S SECRET POWER 216 (1989).

32, Supra n. 16, at 208-210.

33. Goodman, Reforming U.S. Intelligence, 67 Foreign Policy 130 (Summer 1987).



Arbiter Mundi?: Commentary.on
James Turmer Johnson’s
“Just War Tradition and Low-intensity Conflict”

by

Francis X. Winters*

Introduction

ssuming that the responsibility of the appointed commentators at the

Conference is merely to initiate discussion by drawing attention to inviting
topics for consideration, I have chosen to focus on that section of Professor
Johnson’s essay which is at once most policy relevant and most theoretically
engaging. Perhaps the most illustrative passage in this section of the argument is
the claim that:

Specifically, I think the result is to open the door to clearly defined police-like
activities involving the use of force to resist or remove what are broadly recognized
threats to particular people or to international order as such. Just war tradition as
a whole has always been much more open to such interventionary action than
positive international law has become in the twentieth century. . . . I suggest that
under certain conditions now — conditions of egregious and unpunished viola-
tions of rights or threats to the security of others — the burden of proof has shifted
so as to distinguish between aggression and temporary, interventionary use of force
to set right such violations and threats.

Asa possible stimulus to discussion, let me suggest some historical reservations
about the comprehensive accuracy of the claim: “Just war tradition as a whole has
always been much more open to such interventionary action than positive
international law has become in the twentieth century.” While it may be true
that certain periods in the development of just war tradition have indeed been
permissive in regard to State intervention beyond its borders (or the borders of
an ally), it does not seem readily apparent that just war tradition as a whole “has
always been much more open to such interventionary action than positive
international law has become in the twentieth century.” Indeed there seems
ample evidence that in two of its most distinguished stages of development, the
Paris School of the 13th and early 14th centuries and the closely related Salamanca
School of the 16th century, the just war tradition was unequivocally hostile to
external intervention by State authorities. It might even be justifiably claimed, I


86 Legal & Moral Constraints on Low-Intensity Conflict

127. The greatest short-term military danger is likely to be from a radical regime like Iraq, Iran, or Libya,
which if armed with weapons of mass destruction could cause a great deal of damage to the United States.
‘Most of the short-term threats to the United States will be likely to come on the economic front.


Eckhardt 207

argument? Simplistically, self-defense under the UN Charter is our only “just
cause,” so why talk about just war anymore?

Practical experience attracts me to Professor O’Brien’s approach. I am per-
suaded by his comparison of the strong and weak points of just war tradition and
international law. Practically, the integration he advocates of just war theory and
Jaw will occur in war-decision law where international law is at its weakest, or,
in Professor O’Brien’s words—“somewhat limited and rather mechanical.”® He
seeks to deal with the difficult decision to use armed force and to help us conduct
ourselves so as to sustain support for that decision. As noted above, this is the
Clausewitzian center of gravity in our democracy. His plea is to surmount a
limited, mechanical, checklist, legalistic approach to decision making with a
comprehensive, realistic analysis balancing means and consequences against
probable outcomes.”

How does one practically achieve a more central role for just war tradition in
shaping government policy on the use of force? Professor O’Brien’s approach.
clearly requires more effective communication among the members of the
Clausewitzian trinity—the people, the military and the government. The distin-
guished writer on military affairs, Colonel Harry G. Summers, has also noted
that there is a requirement to engage the national will, to gain public support,
and to obtain and sustain national and international consensus.

These necessities seem to have been reflected in then-Secretary of Defense
Caspar Weinberger’s tests for going to war articulated in his November 1984
National Press Club address — “The Uses of Military Power” — which have
become known as the Weinberger Doctrine." Articulated at a time when there
was a general disenchantment with the relevance of international law to foreign
policy, Secretary Weinberger’s text does not mention the United Nations, does
not mention international law, and does not acknowledge any legal prohibition
against the non-defensive use of force. When the law was in danger of fracturing
and was not representing a working international consensus, Secretary Wein-
berger revived the just war tradition in an attempt to place intellectual “bench
marks” for public discussion in a search of consensus.' Is not this approach similar
to that proposed by Professor O’Brien? Our countrymen are not unprepared for
such a debate. In the Gulf War debate, as noted recently by George Weigel in
his portion of Just War and the Gulf War. “there has rarely been such a sustained
(and in many respects, impressive) public grappling with the moral criteria and
political logic of the just war tradition.” In the context of the “revived” respect
for the United Nations Charter, is such a discussion not the plea of Professor
O’Brien? The practical importance of our discussion cannot be overstated,
Professor O’Brien’s intermingling of just war tradition and international law is an
important step toward a more rigorous, interdisciplinary approach to use of force
issues.


294 Legal & Moral Constraints on Low-Intensity Conflict

lines there. Going back to the Nuremburg tribunal, when the Nazi war criminals
were accused of crimes against peace, they said that every country must be the
best judge of its security, its longer strategic needs, and sometimes this requires
preemption. That’s essentially the defense position which, of course, was rejected
by the court. Every time the Soviet Union increased its nuclear capacity, they
presented a serious problem to us; the prospect of exterminating us, in fact. We
never considered preempting. Isn’t it dangerous in a world armed the way our
world is, to take too expansive a view of preemption? The usual argument, as
we all know, is that because we have weapons of mass destruction, we have to
be able to preempt. But, when you think ofall of the false alarms that we’ve had,
we realize the problem with preempting is, if you’re wrong, you've made a very
serious error indeed. The point is made.

Secondly, the reference to problems—both the opportunities and risks—of
going to the Security Council. In that connection, Abe, you said, “timing is
everything.” I have to admit I thought either that’s a cliche without content, or
it’s wrong. Take the two cases you gave; Libya and Kuwait. Does it really make
any difference whether we get those two agents out of Libya now, next week
or in a year? If we can get them, the system has worked, and I think it would be
a tremendously important precedent. I don’t think it makes a bit of difference
when we get them. So, therefore, in your case, I don’t think timing is everything.
I don’t think it’s anything. In the case of Kuwait, of course, the country was
ravaged before we got the Iraqis out, but we weren’t in any position to get the
Iraqis out on day 1 or day 25. So, you have to really make the argument that the
time taken to get multilateral support for our operation was much greater than
the time that would have been required for us to mount a unilateral operation,

which is by no means clear.

Last point. Congress. We tend to see Congress the way German leaders and
thinkers of the eighteenth and nineteenth century tended to see civil society; as
a burden to the extent it exerts constraints on what you'd like to do internation-
ally, or, as a place where you can find resources. We tend to think of Congress
mostly as a place that gives us the money to do what we want to do, but is
otherwise a nuisance. In a way you can say the same thing about the Security
Council. Maybe these two criticisms overlap, but the point is that sometimes
we're wrong. If we had had to submit ourselves to the review of a multilateral
agency like the U.N. in the case of Vietnam, where many of us feel that the
expenditure of national assets in a wasteful way was a moral issue, we probably
would have had to cut the process short.

European countries run by some very fine able men stumbled into the first
World War, and virtually destroyed Europe. Even very able and well-intentioned
people make serious mistakes, and we haven’t always had the ablest men running
the United States Government. Our elections process doesn’t always yield men
of admirable character and ability in the top position. If the President has a bee


284 Legal & Moral Constraints on Low-Intensity Conflict

Another example of acts short of the use of force in which we may engage is
the manner in which we treat diplomatic missions or pouches. This conduct is,
in my view, reciprocally permitted to the States against whom we take such acts.
Also, it has to be said that we undermine the position we have taken in
international fora on agreements such as the Vienna Convention when we pursue
covert policies so consistently at variance with our official position that the
discrepancy becomes common knowledge. Then there really is no longer any
credible basis for us to go to other countries and say that they are supposed to
operate in a different way, vis-a-vis our own missions.

Another difficult subject which must be addressed is that of acts which violate
the domestic laws of foreign States. Here is a very, very sensitive issue which we
have been dancing away from for years. Internally, we look at it periodically, but
there are very few open discussions on this issue. These acts, I would submit, are
inconsistent with the general policies and objectives of international Jaw and
should be undertaken only where some overriding legal principle is available as
justification, and where we could regard such acts as appropriate, if taken under
the same circumstances within the United States. Now, that’s a very challenging
statement, but if you think about it, we should be able to meet that standard, We
have to look at it carefully. I would take into account the fact that the United
States should allow a certain degree of investigative activity in this country by
foreign countries. We do tolerate it, because we certainly engage in it overseas,
and we could permit a certain amount of this kind of thing without harming
ourselves. I’m not suggesting violations of the U.S. law by any means. I’m
suggesting relatively harmless things. But if we try to create double standards, we
simply won’t succeed, and we had better be realistic about that fact. At least
somewhere in some forum, maybe not here, maybe not in public debate, but at
least somewhere, we have to sit down and cope with the real consequences of
what people know we're doing overseas. At the time I left the U.S. Government,
we had not succeeded in dealing with these and other similar issues in an
intellectually satisfying manner.

Beyond the issues concerning low-intensity conflict raised by the familiar
mandates of international law, are some potentially constraining and possibly
liberating effects of the new international order. The collapse of the Soviet Union
has created a situation in the Security Council where widely accepted norms of
international conduct may, for the first time since the Charter’s adoption, be
taken seriously. While the new international order may lack substance in many
other areas of international activity, it means something in the area of interna-
tional law.

In dealing with Iraq's attack on Kuwait, the Council proceeded from measure
to measure until it finally authorized the use of force. Using the Council so
effectively helped the President to garner widespread support internationally, and
may well have been pivotal in securing the approval of Congress. It is already


O'Brien 185

not the object of multiple, competing interventions must have occurred in a
place that was of no serious interest to anyone but the indigenous population.
Moreover, as in UN war-decision law, strict interpretations of the principle of
non-intervention refused to consider exported revolution and other forms of
indirect aggression as intervention. Perhaps the outstanding example of this was
provided by the involvement of the United States in Vietnam, where we
intervened to counter the indirect revolutionary aggression exported by the
North, Our more open intervention was roundly condemned, while the trans-
parently concealed indirect aggression of the North was ignored or condoned.
Had North Vietnam invaded South Vietnam conventionally as North Korea
invaded South Korea, presumably even strict constructionists of UN war-
decision law would have had to accept a U.S. claim of counterintervention as
collective self-defense against aggression. The mode of indirect aggression—and
its acceptance—denied the U.S. this clear justification.

In keeping with their interpretation of the law regulating recourse to armed
force, those who reject the strict principle of non-intervention undertake to
judge military intervention in the context of the situation. Here the emphasis is
on the dynamics of intervention and counterintervention. Competing interven-
ing powers have often been active in a contested country or area in a number of
‘ways not involving use of armed force, such as economic and technical assistance.
‘When a revolutionary war heats up, it is necessary to see which intervening
powers are escalating the conflict. Thus, it is clear that in the period leading to
full-scale American involvement in the Vietnam War, 1954-1965, the North
Vietnamese and their Viet Cong allies consistently escalated the war and increased
the North Vietnamese role in it, even to the point of infiltrating North
Vietnamese regular forces into South Vietnam in the fall of 1964.'7

Historically, exceptions have been claimed to the principle of non-interven-
tion. Admittedly these exceptions have been primarily invoked by advanced
Western, sometimes imperialist, States intervening in less-advanced, weaker
States. However, these exceptions have also been invoked by Third World States,
as India did in Sri Lanka. The exceptions claimed have been:

(1) intervention by treaty right, e.g., U.S. in Panama

(2) intervention by invitation of incumbent government—usually in the
form of counterintervention against antecedent intervention in support of
insurgents

(3) intervention by a foreign power to protect the lives and property of its
nationals and other endangered aliens

(4) humanitarian intervention—intervention to save a people from its own.
government.”*


Index

collective security concept eliminating alliances for, 81
United States government (checks and balances)
covert activities: See Covert activities
executive branch: See President of US
legislative branch: See Congress of US
Ball, George, 329
Bangladesh, “evidence” of humanitarian intervention in, 228
Barcelona Traction case, 58
Bay of Pigs invasion
covert actit » discussion, 326, 331
realist viewpoint of, 92
Biological warfare: See Weapons of mass destruction
Books or manuals on war, just war tradition in, 152-153, 155, 192-193
Borders or frontiers .
competent authority (jus ad bellum) to use force, 212
discrimination and proportionality criteria, 162-163, 193-195, 232, 256
effect of military buildup on, 75-76
freezing of in post cold war era, effect, 119
human rights violations, crossing borders to arrest, 217-218
inviolate nature of, 217-218
just war theory and sovereignty affecting use of military force across, 157-160
Bosnia, covert nature of operations in, 16
Boycotts: See Sanctions or boycotts
Burden of proof in international law, use of military force across borders, 160
Bureaucratic selfishness, 321
Bush, George (President of US)
“assassination prohibition” in administration of, 282
Cold War, 1992 State of Union address following end of, 255
Libya, air strikes against: See Libya
‘War Powers Resolution, acceptance of principles of, 187
Bystanders or innocent lives, moral culpability for sacrifice of, 104

c

Cambodia
North Vietnamese sanctuaries within, 72, 74
proportion requirement of jus in bello, 193

Capitalism, democratic views affected by, 11-12

Caroline test, 77

Carter, Jimmy (President of US)
acceptance of principles of War Powers Resolution by, 187
Afghanistan, involvement in, 290

“Case-by-case” approach to issues: See Ad hoc approach

Castro, Fidel: See Cuba

Casus belli: See Just cause

Catholicism: See Christianity

Cease fire treaty, Iraq's refusal to honor, 178, 219

Censure or criticism of other states: See Condemnation

Central Intelligence Agency (CIA): Sce Covert activities

Certainty in nature of law, advantage of, 206, 234, 237

Charter of United Nations
articles: See Article...
contemporary international law, discussion, 172-174, 182, 234
conventional warfare as model in, 4, 15, 227
“exceptions” to UN Charter’s definition of self-defense, effect of, 282
expanding Charter to meet contemporary problems, 232-233, 236
intent, 60-62

361


176 Legal & Moral Constraints on Low-Intensity Conflict

peoples was the young Dean of the Faculty at Salamanca, Fra Francisco de
Vitoria.’

Vitoria was amply prepared to undertake the task, for his own theological
studies had been made at Paris, where he benefitted from a renaissance of
Thomistic political and moral thought. He was, then, from an early age imbued
with the Thomistic insistence on the right of national sovereignty, that is, the
conviction that the several disparate European realms were independent of any
overlord, including the Emperor. The base line of Vitoria’s analysis of the ethics
of “the conquest,” then, was the primordial principle of sovereignty, the nation’s
immunity from external intervention.

Vitoria’s own decisive contribution to the natural law understanding of justice
‘was to conclude that sovereignty was a two-edged sword: just as Thomas had
elevated the principle as a check against German imperial claims against the
independence of France, so Vitoria insisted that the still unfamiliar nations and
tribes encountered across the seas were sovereign in their own right and immune
from coercion by the Spanish Crown. Vitoria’s cardinal contribution to the
tradition may have owed more to his strength of character and his penchant for
intellectual consistency than to any intellectual genius. For it took a man of
considerable fortitude to stand up to the pressure of public (and royal and
ecclesiastical) zeal for the conquest in his defense of the newly discovered people
in the Americas from the claim that, as barbarians, they had no rights. Affirming
the Spanish right to travel, to trade, and to preach in the Indies, Vitoria
nevertheless challenged the wider claims of political and religious superiority and
jurisdiction in the Indies.

Vitoria’s explicitly drawn corollaries on the justice of war in the Americas
were that wars fought against the native peoples, except in self-defense, were
unjust, while Indian defensive wars against the Spanish were justified.'®

The School of Salamanca, like its inspiration at Paris, contributed to the
understanding of the principle of sovereignty by insisting that the right which
defies rule from abroad likewise must renounce the aspiration to rule from abroad
by coercion. At least these two decisive centers of just war thinking represent a
challenge to, rather than a justification of, intervention.

Conclusion

It might be preferable if the ethical question of whether the U.S. should
unilaterally depose governments which it perceives as dictatorships and/or drug
traffickers were merely an academic matter. For better or worse, this is not the
case. In the “low-intensity” intervention dubbed “Operation Just Cause,” U.S.
citizens saw a classic demonstration of the dynamics of U.S. hemispheric
house-cleaning in the post-Cold War era. It was to some a chilling exhibition
of the self-righteous application of overwhelming force against a hapless and


102 Legal & Moral Constraints on Low-Intensity Conflict

has to be just. A legitimate government may not always espouse a just cause, so
the operation may be illegitimate on those grounds. In addition, the envisaged
operation may be disproportionate, or intrinsically odious, or otherwise in
violation of human rights, and be banned for those reasons,

The Eichmann case may illustrate this point.” In 1960, Israeli agents located
the infamous Adolf Eichmann living in Argentina under a false name. They then.
kidnapped him out of Argentina. He was taken to Israel, where he was tried,
convicted, sentenced to death, and hanged. At the time, both the Israeli and the
Argentine Governments were legitimate.*! Was the operation morally justified?
This is a particularly instructive case, because punishing a war criminal is a worthy
aim, especially for those (like me) who sympathize with retributive impulses. Yet
I believe that the Israeli Government was not justified in kidnapping Eichmann,
as was recognized by the United Nations Security Council and implicitly
acknowledged in Israel’s apology to Argentina.

Let us first look at the aim itself: I have indicated that the main justification
of international acts, and international coercion in particular, is the defense of
human rights. Punishing a war criminal (even one as evil as Eichmann) is,
however, a less compelling aim than a direct defense of human rights. There are
two possible justifications that the Israelis had for punishing Eichmann: retribu-
tive justice and deterrence. Retributive justice corresponds to an abstract idea of
just dessert that is hard to link to the defense of human rights in any obvious
sense (even if we otherwise accept a retributionist justification of, ‘punishment).“
Deterrence, in turn, is only indirectly linked to the defense of human rights:
Eichmann must be punished because that will be a lesson for potential war
criminals and mass murderers, and thus everybody will feel more safe, that is, the
probability of rights violations will decrease.

Onany account, then, the goals pursued by the Israeli Government, while morally
worthy, seemed insufficient to outweigh the moral reasons that support State
sovereignty. The Israelis should have requested help from the Argentine Govern-
ment. Even if that help would have been denied (and there is no evidence that it
would) the moral reasons that support sovereignty when the State is filly legitimate
supersede, I think, legitimate retributive interests. Ofcourse, given the horrific nature
of Eichmann’s crimes, the Argentine Government would have acted immorally had
it refused to surrender or, in the alternative, prosecute Eichmann. But the remedy
lay not in the violation of a legitimate State’s sovereignty. Members of the liberal
alliance have a duty to keep to rational methods of resolving disputes. Low-intensity
operations such as kidnapping have no place within the alliance, no matter how
noble the cause or how vile the victim.

(b) Low-Intensity Operations Against an Illegitimate Government
The second situation is more complex: The State is legitimate, but the
government is not. The general principle in this circumstance for low-intensity


Turner 49

would argue with our taking defensive measures as a means of protecting our
interests. But even in that situation, it would be in our interest to raise the matter
at once in appropriate international organizations (e.g., U.N. Security Council
or OAS).

First ofall, this provides evidence of good faith on the part of the United States
and signals our preference for multilateral responses to armed aggression. Second-
ly—particularly if the world community understands that the alternative to
collective action will be unilateral U.S. action—there is always a chance that we
will gain the support of the world community and they will share in the costs of
deterring or defeating the aggression. Each time the U.S. bypasses the machinery
of international law it helps to undermine that structure, and in the long-run it
is clearly in the United States’ interest to have an effective world collective
security mechanism.

There are obvious advantages of taking a multilateral approach. Consider, for
a moment, the case of Libya and the terrorist attack on Pan Am Flight 103. If
the powerful United States sent a naval armada to the Gulf of Sidra to pressure
Libya into handing over the accused terrorists, many nations would view this as
“power politics” as usual—a superpower bully imposing its will on a relatively
weak Third World State. By having the U.N. Security Council take the lead,
the case becomes not “United States v. Libya” but “The World Community v.
Libya,” and a charge by the Security Council that Libya is guilty of State-spon-
sored terrorism is far more persuasive to most neutral observers than would be a
unilateral U.S. charge. Even if the United States in the end has to act unilaterally,
the fact that the Security Council tried without success to compel Libya to fulfill
its international responsibilities will likely strengthen the U.S. hand if force
ultimately is necessary.®

When the United States is forced to go it alone—for example, in situations
in which another permanent member exercises its veto in the Security Coun-
cil—it is important that we have the maximum possible support from our own.
people and from the people and governments of the world. The knowledge that
the U.S. sought to utilize the established international machinery before resorting
to unilateral force should strengthen its hand in the struggle for public support.

If We Must Break the Law—Mitigating
Systemic Damage

As Secretary of State Jefferson noted, © law is a “means” and not the ultimate
“end” of society. It is a tremendously important means, and the United States
should do nothing to undermine the continued development of international
law if we can avoid it. But—particularly given some of the current shortcomings
or weaknesses of the law—there may come a time when we must act contrary
to our treaty or other international law obligations. In that event, it is important


226 Legal & Moral Constraints on Low-Intensity Conflict

overwhelming force. As Jim Johnson brought out in detail in his paper and then
mentioned in his oral presentation, the particularly interesting dialogue between
Secretaries Weinberger and Shultz several years ago, showed elements of just war
thinking, although it was not expressly acknowledged in their statements. I
haven’t seen the final version of the report on the Persian Gulf conflict, which
I gather is not out yet, but certainly the draft that came out last summer has a lot
of language taken from international law terms and just war. So, I think it’s an
indisputable fact that we have made considerable progress in encouraging
sophisticated normative analysis in the statements and justifications for U.S.
defense and security policy.

Isee the role of just war doctrine to be threefold. First, to provide a framework
for moral analysis of security issues. Second, to complement the international
law, not to replace it but to complement it, providing guidelines for policy when
appropriate. Third, to complement international law in forming justifications for
the policies once they are put into effect.

Now, I will probably disappoint some of our international lawyers because I
have to give a somewhat pessimistic analysis of the state of international law
relative to recourse to force. I am not as pessimistic about the law governing
conduct in war. In the post-Vatican II spirit of trying to move from Latin to the
vernacular, I tend to use the terms war decision law and war conduct law, rather
than use jus ad bellum and jus in bello.

I think that the war decision law of international law has some problems. In
the first place, I don’t see any real prospect for a new world order. I think that
the Security Council mandated action in the Gulf under Article 42 was unique,
maybe the last one we will ever have of its kind. The circumstances that made
it possible were extraordinary. Accordingly, everything falls back on Article 51,
the interpretations of self-defense. As was already alluded to several times this
morning, there are differing views of what constitutes self-defense. Some of them
are very strict, amounting to little more than on-the-spot defense against
immediate armed attack. That is a view held by a lot of very distinguished
international lawyers, including many European and South American prac-
titioners. I think they are very unrealistic. A lot of the texts that I have read, even
ones written after 1945, are literal treatments of the Charter, and I think we have
had quite a few years of experience since then to appreciate the advantages of
the Myres McDougal idea of practice and expectations, and not just look at what
the Charter provides. In any event, I would argue fora fairly broad interpretation
of “self-defense” to relate to the various challenges that we happen to have
experienced around the world since 1945.

Now, where the just war tradition comes in, I think, is as follows. Those who
‘would not favor a narrow, but rather a broader understanding of self-defense,
will often use words as McDougal does, such as “reasonable,” very much like
the concept of reasonableness in domestic tort law. Well, I think a just war


Turner 55

shrinking world and a desire for peace worked gradually to diminish the scope
of this great power.

Early Restrictions on Sovereignty

Gierke argued that, even in the Middle Ages, sovereignty was not unlimited.
Kings and parliaments alike were constrained by rules of Natural Law (jus naturae),
the law of God (jus divinum), and “the common practice of all nations” (jus
commune gentium).”? R.A. Eastwood and G.W. Keeton writing in The Austinian
Theories of Law and Sovereignty, conclude: “It will therefore be evident that the
existence of the idea of Natural Law imposed an important limitation upon
sovereign power. Even Coke, so late as the seventeenth century, held that an
Act of Parliament contrary to the s principles of Natural Law would be void, but
the idea was waning even then.”

An important early restriction on sovereignty came from religion. Augustine
and Thomas Aquinas believed in “the absolute supremacy of the Papacy.”45
According to the “doctrine of two swords”,*° God has given the Pope two
swords—the spiritual sword for the Pope to wield himself, and the temporal
sword for the Pope to entrust to another (the Emperor). By this theory, the
Emperor was both inferior to the Pope and constrained in his exercise of
“sovereign” authority to abide by the law of God.

The desire for peace led to still further refinements in the definition of
sovereignty. Hymen Cohen, of the University of Chicago, wrote in 1937:

In the international field with its contending autonomous groups, with its newly
emergent States, the claims to exclusive possession of absolute, unitary power were
hardly reconcilable with the desire and the need for peace. To further peace and
cooperation among the rulers and nations which had arisen from the remains of
the economically antiquated feudal system, the concept of sovereignty changed
from a single unitary supreme power. . . . In this manner, owing to the exigencies
of an international situation in which the possession of sovereignty was the index
to internal governmental supremacy, sovereignty externally was limited in mean-
ing to the recognition that the government was supreme domestically and that it
could enforce what it would on its own domain. Externally, it claimed no
supremacy; it claimed only a freedom from external control—independence. It
claimed, in other words, the right to make such obligations for itself and its nation
as it pleased, of its own free will.”

Professor Oppenheim noted that the development of international law raised
new questions about the traditional theories of sovereignty:

The question which is now confronting the science of law and politics is how far
sovereignty as it presents itself from the point of view of the internal law of the
State, namely, as the highest, underived power and as the exclusive competence
to determine its jurisdictional limits, is compatible with the normal functioning


184 Legal & Moral Constraints on Low-Intensity Conflict

of aggression have been compelled to interpret self-defense broadly and realisti-
cally.

UN war-decision law was based on the assumption that war-avoidance was
overwhelmingly the highest priority and that defense of justice had to be
subordinated to war-avoidance. As concern for human rights increased—
together with violations thereof—the UN peace-at-any-cost emphasis was
rejected by many States and political movements.

Finally, as demonstrated in the strict interpretations of self-defense, UN
war-decision law assumed that most conflicts would be interstate conventional
wars. Of course, most of the wars in the UN era have been low-intensity wars
of revolution, terrorism, intervention and counterintervention.

Given the gaps between the assumptions and priorities of the UN Charter and
the realities of contemporary world politics, it is not surprising that UN
war-decision law, particularly as strictly and literally interpreted, does not reflect
the practice and expectations of States and political-military movements. What
is required is a “reasonable” approach to the understanding of self-defense in a
world in which there is little prospect for effective collective security, not-
withstanding the success of Desert Storm. Just war doctrine is ideally suited to
provide a framework for determining what is “reasonable” in war situations.

In the contemporary era, war frequently takes the form of intervention and
counterintervention. From the time when Emerich de Vattell proclaimed the
principle of the sovereign equality of States (droit des gens), 1758, the principle of
non-intervention has been treated as fundamental in international law.!> Needless
to say, it has often been violated. But even as colonialism and imperialism declined
in the latter part of this century, there was widespread—if often hypocritical—in-
sistence on the necessity and priority of the principle of non-intervention. The
principle basically prohibits interference by one State with the exercise of sovereign
powers by another State.’* In some modern versions, however, the principle is
expanded to prohibit an unlimited spectrum of forms of influence.'>

As with UN war-decision law, interpretations of the principle of non-inter-
vention range from strict and literal to “reasonable.” This discussion will be
limited to cases of intervention involving armed force. I will therefore eschew
the arcane issues of political, economic and social intervention, including
Coca-Cola intervention, designer jeans intervention and CNN intervention.
Strict opposition to armed intervention is most commonly concemed to prohibit
external involvement in civil wars.

Here, in addition to the reliance on the concept of inviolable sovereignty,
there is insistence on the right of self-determination—by civil strife ifnecessary—
without outside interference.!

The problem with the prohibition of intervention in civil war is that, more
often than not, it is manifestly ignored by States and political-military move-
ments. Indeed, throughout the Cold War, one could say that a civil war that was


Panel Discussion 289

The second concerns the use of force for limited ends. Americans are willing
to die, or at least to put themselves in harm’s way if the purpose is victory over
evil. But ifthe end is an adjustment to American national interests and is not seen
as a higher order moral issue, it is very difficult for most Americans to believe
that force is warranted. As I pointed out very briefly, Americans tend to see
conflict in black and white terms. So, their tendency is to say well, if we’re not
going to win that fight, we shouldn’t get into it. These thoughts are in the words
of the Founding Fathers and they are echoed in the debate about DESERT
STORM. I don’t think the influence of our founding philosophy in the use of
force in foreign affairs has lessened much in the past 200 years.

The point I wish to make is that in most cases, particularly covert action,
low-intensity engagement must come early ifit is to be effective. Now, this runs
counter to the just war checklist that was discussed yesterday. Covert action is
seldom effective if it is used as a last resort. Much of American covert action in
the post-World War II period may well have been ineffective because it was too
little, too late. So, our reliance on just war thought in this case reinforced the
constraints on low-intensity conflict that derive from our native philosophical
tradition.

The fourth point Id like to touch on, mentioned earlier by Abe Sofaer, is that
much of low-intensity engagement is secret. Those of you who followed the
intelligence revelations of the mid-’70s will remember the premise of the Church
Committee was that secret operations, intelligence activities and covert actions
were, because of their secrecy, a threat to our democratic values. To some extent,
a serious case can be made that that’s true. This is another aspect of low-intensity
conflict that rests uneasily with our tradition.

Let me tum to the topic of covert action. I have been greatly struck by the
fact that most of the individuals I’ve encountered in the process of developing
and implementing covert action policy have a personal moral “compass” which
is given no opportunity for expression by the process itself. This is a dilemma
that must really be considered by the folks in the Office of the Secretary of
Defense. The process of looking at covert actions in low-intensity conflict, and
designing the policies and measuring the implementation is itself not explicitly
influenced by what we could call collective moral reasoning. That is to say, moral
issues do not generally make it to the policy table even though these individuals
themselves may be struggling with them in their own minds.

I want to go farther and suggest that in the absence of a process which calls
forth these moral considerations in advance, it is unlikely that the United States
will have the ability to develop the interest in low-intensity engagements that
would lead to success. My observation was that this aversion to low-intensity
conflict in general extended to the White House, where there was no call from
on high to develop covert action. What would happen is that the CIA would
send up a covert action, usually as a courtesy copy on its way to the Hill to meet


Index

assassination, relationship to murder, 164-165, 213, 273-274, 281-282
genocide: See Genocide
regicide, cultural uneasiness about, 164, 213

Muslim religion: See Islamic religion

My Lai, effect of absence of discipline in field, 238

N

Narcotics: See Drugs and drug trafficking
National Council of Churches (NCC-USA), pacifism in, 260-261
National interest: See National security interest
Nationalism or “national glory”

communitarian and utilitarian realism, distinguished, 93, 95

Holy Roman Empire, struggle of sovereign states to emerge from, 174~175
Nationals: See Citizens and citizenship
National security interest

communitarian and utilitarian realism, 93-94.

covert activities as last resort, 289, 330-332

extreme or moderate realism as justification for behavior, 92

human rights approach to international law affecting, 96-98

legal options, 296

Libya, 1986 air attacks on, 308

moral standard in policy-making decisions, 279, 310-311

normative realism: See Normative realism

justice, natural law conception of, 175-176
just war theory, natural law as basis of, 192
modem natural law, discussion, 245-246, 313-314
peremptory norms as reflection of, 59
Necessity, effect of sovereignty, 104-105
Neighboring state, use of soil to violate others’ sovereignty, 72-74
New nationalist vs. noninterventionist debate, 253-256, 264
‘News media
Congress, problems of dealing with, 295-296
disinformation: See Disinformation
Gulf War, coverage of, 263
public support, enlisting: See Public support
Ngo Dilnh Diem as dictator, removal of, 210-211
Nicara;
background, 242~243
competent authority, 186~189
defense of outcome, 143
Iran-Contra hearings, use of public funds for covert operations, 281, 325
jus ad bellum, 187
Tegal analysis and just war analysis, distinguished, 238-240
Operation Urgent Fury, purpose of, 311
public information and support, importance of, 52, 301
“secret” attack, ignoring evidence of, 28
self-defense, limits placed on, 138-141
technical collection assets, over-reliance on, 269
Noncombatants or civilians: See Citizens and citizenship
Non-intervention: See Intervention or nonintervention
Noninterventionist vs, new nationalist debate, 253-256, 264
Nonmembership in UN, effect of, 67
Noriega (General), arrest oft See Panama
Normative realism, 91-92, 112, 133, 221

377


Roundtable Discussion 315

This contrasts with an entirely different view of the moral or the ethical, which
looks to goals, interests, and outcomes. This is a basic divide in moral theory and
it can’t be settled here. But I will say that the conflation of law and morality with
interests leaves them unable to stand as an independent criterion for judging
conduct. They lose their critical force and prophetic judgmental basis, which are
precisely the qualities needed by policy makers if they are to subject their work
to standards that transcend parochial or nationalistic concerns.

This brings to mind a third dimension which I would characterize as a
fundamental cultural question. It’s the debate about whether these standards are
universal or whether they are particular or communal. That’s a very hard thing
to decide. I think we all recognize that one reason these debates are so
complicated is that we're faced with a series of quite separate ethical outlooks,
whether that of international Jaw or American law; whether that of our Christian
heritage or the rational natural law version of it; whether American military
traditions or foreign. All these different viewpoints are not easily reconciled.

To return to my initial distinction between the synthesizers and the separators,
I think the weakness of the former is to strive for consistency at the expense of
the critical independence of the various standards that we can call on to evaluate
our policy goals. The separator who treats law as one thing, the national interest
as something else, and his moral judgment as yet another, may find himself in
normative gridlock. Nevertheless, his judgments retain real critical force because
he can criticize a policy position on the basis of criteria not already subsumed
within it.

PROF. COLL: Thank you.
Professor Farer.

PROF. FARER: I wanted to speak to the question of just war as an ideology,
prefaced by a brief comment on Professor Nardin’s very important point.

I find Terry is pushing me closer to Professor Reisman. I would distinguish
the position that Terry has staked out for himself, a position which I always feel
Michael tends toward, in the following way. Government international law tends
to incorporate a long term sense of what is in the general or collective interest.
It can’t have authority distinct from national interests, because after all, the
international legal system is a consensual one, We’re one of the principal makers
of those rules, so there shouldn’t be a dichotomy between international law and
our longer term interests. There can be a dichotomy between the constraints of
Jaw in a particular case, and what is seen as a short-term opportunity to seize an
advantage. Unfortunately, political considerations often compel us to make
short-fused decisions, even ifnot in a time of what appears to be a terminal crisis.
In such exigencies, we don’t have a chance to take into account the whole range
of possible implications, short, medium and long term, so the law gives us valuable




372 = Index

cease fire treaty, effect of refusal to honor, 178, 219
Israel's 1981 preemptive attack nuclear reactor at Osirak, 223-224, 297-298
Kuwait, invasion of: See Gulf War
Saddam Hussein: See Hussein, Saddam
Shiite rebellion, US overt aid to, 165-166
Ireland, history of Catholic clergy’s opposition to, 229
Islamic religion
alcoholic beverages, reciprocity principle affecting regulation of, 47-48, 319
ideological zealotry, challenges posed by, 161, 213
Shiite rebellion, US overt aid to, 165-166
women’s rights, Muslim nations’ refusal to endorse, 127
Isolationist vs, internationalist debate, 253-256, 264
Israel
assassination of Abu Jihad, 195-196, 231
counterterrorist strategy of, 197, 231-232
Eichmann kidnapping 2s violation of nation’s sovereignty, 102
preemptive attacks
Traq’s nuclear reactor, 1981 attack on, 223-224, 297-298
June war of 1967, 183

James, Henry, 300
Japan
economic, power limited to, 253-254, 320
Manchurian invasion.See Manchuria, Japanese 1931 invasion of
Jeffersonian democracy
capitalism, effect of, 12
culture, politics as product of, 209
international law, view of, 297
Monroe Doctrine, Jeffersonian ideals affecting application of, 46, 124
rule of law, self-defense affecting, 4448
John of Paris, 171-172
Jordan, Israeli attacks on terrorists living in, 231-232
“Judgment of God,” Kant’s view of war as, 87
Jurisdiction
Article 2 of UN Charter, 52, 57
foreign jurisdiction: See Foreign jurisdiction
Jus ad bellum (“war-decision law”): See Just War theory or tradition
Jus cogens:See Peremptory norms (jus cogens) of international law
Jus in bello (“war-conduct law”): See Just War theory or tradition
Just cause (jus ad bellum)
cease fire treaty, effect of refusal to honor, 178
comparative justice: See Comparative justice criterion
described, 150, 189, 228-229
expansion of, 258-260, 277-278
humanitarian intervention: See Humanitarian intervention
“just revolution,” what constitutes, 189, 229, 236
military force, use of, 158-159
self-defense as: See Self-defense
Justice
comparative justice: See Comparative justice criterion
culture specific nature of, 213-214, 220, 227
overtuming governments in interests of, 319
“right authority” concept of, 158
Schools of Paris and Salamanca, 174-176
“Just revolution,” what constitutes, 189, 229, 236


144 Legal & Moral Constraints on Low-intensity Conflict

RADM LEMOYNE: And I’d like to follow up by returning to the difficult
case of President Fujimori in Peru.

You expressed some reservations about what he’s doing, but viewed from.
another perspective, his country is in mortal danger from drug trafficking and
the Sendero Luminoso.

PROF. TESON: Well, let me address that very briefly because it touches
closely on my own experience in Argentina. I certainly sympathize with the
situation he’s in. The fact that the insurgency is being financed by the drug money
is admitting an extenuating circumstance. Having said that, I think we in the
democratic world should warn, to use the cliche, against trying to save democracy
by destroying it. The way to eliminate the cannibals is not to eat them. In
Argentina, I witnessed a government for eight years, which in the name of
civilization and of democracy, kidnapped, imprisoned, tortured and killed
people. So I just don’t think that some of the things that he’s done are justified,
even under the right of an emergency, because they destroy democracy. Having
said that, I still believe it’s a hard case. .

PROF. REISMAN: Ladies and gentlemen, we have reached the end of this
morning’s session. I thank the speakers in this second panel, and I thank the
members of the audience who participated because it’s been very useful. We’ve
exposed this as an extraordinarily complex and difficult issue, though a number
of speakers put forward guidelines or theories for making choices. None of them
suggested for a moment that any of these choices are easy. This is a difficult
subject and for that reason, I think we will continue it this afternoon.
Thank you.


216 Legal & Moral Constraints on Low-Intensity Conflict

intervene to bring it about. It means that the first burden is on the people in the
country to decide what’s tyranny and to do something about it.

My own view is that much American discussion of reform intervention has a
premise that is slightly condescending to other nations. Namely, they're not
bright enough to know they’re being tyrannized or if they're bright enough,
they’re not courageous enough to do something about it. So I think if the just
war tradition has a relevance to revolution, it’s that revolution is a universal right,
and therefore, we shouldn’t be inclined to leap into it immediately. We should
allow other peoples to deal with tyranny as they see fit.

I just want to say one more thing. I also think that the just war tradition does
not preclude us from assisting another government facing a revolution. I don’t
think it is explicit in the tradition anywhere but I think the tradition is wholly
open to it. I think that the idea of being allowed to assist governments against
insurrection is more a question of international law, but I think the just war
tradition is at least open to it. I think my first point is more important though.

PROF. FARER: Three points. First on the question of whether international
Jaw covers low-intensity conflict and its range of phenomena. If law were only
acollection of rules, it would make it easier to answer. Ifyou see law as consisting
of three kinds of materials (rules, principles and policies), then the situation is
different. Even if a specific rule doesn’t cover a problem, the broad principles do
cover it, and the policies that infuse the rules and principles, certainly cover the
issue. This makes it perhaps easier for reasonable people to disagree as to exactly
what the appropriate legal result is of. case, but it doesn’t leave gaps in the legal
structure as such,

The second point has to do with what seems tc have become the principal issue
with sovereignty, which is low-intensity conflict and democracy. I’m not entirely
sure how it relates to the general discussion that we're having. If it is a question of
whether we should use low-intensity conflict strategies to overthrow tyrants, we
can focus on that issue. Or we can decide if it is a question as to whether we
overthrow tyrants by low-intensity tactics or high-intensity tactics, and that’s another
issue to be considered. I don’t think that distincticn was made by either speaker.

FR. WINTERS: Could I just answer that one. I meant, my response to Jim is
that he does, as far as I can tell from the text, say that we should be allowed to
turn to low-intenstiy conflict to remove dictators.

PROF. JOHNSON: Yes, that is my position.

FR. WINTERS: Now, to my mind that supposes, first of all, that you have a
just claim for removing a dictator. This talk about doing it by low-intensity


Coll and Shultz 331

United States. This is a minimalist argument that views covert action not as a
normal but as an extraordinary instrument of statecraft.

The argument appears to have been made first by Walt Rostow in the
aftermath of the Bay of Pigs debacle. Based on his review of what went wrong,
Rostow proposed a standard for covert action. He noted that the CIA “only gets
terminal cases when conventional means have failed. The CIA [is] asked to undo
covertly what the policymaker on high had been unable to prevent overtly. yt
Rostow suggested that when a President turns to the covert instrument he should
do so only as a last resort. However, Rostow also noted that success in such
operations is always doubtful. In his postmortem of the Bay of Pigs he observed
that “all in all, it appears to have been an effort beyond the capacities of the CIA
to mount successfully.”"5

A similar argument has been made by such distinguished public servants as
former Secretary of State Cyrus Vance, former Secretary of Defense Clark
Clifford, and the late Senator Frank Church. According to Gregory Treverton:

For Vance, the language of the 1947 [National Security] act—"affecting the
national security"— was too loose a standard for covert action. Instead he
recommended covert intervention only when doing so was absolutely essential to
the national security of the United States, and when no other means would do."

Vance believed that “such actions should and would be very rare.” He also
asserted that certain kinds of covert action, such as assassination or interference
with the electoral processes in other countries, should be proscribed. Vance’s
views were embodied in Executive Order 12036 of 1978, a document that served
as the Carter Administration’s guidelines for the activities of the national
intelligence community.

Meanwhile, Clark Clifford has noted that under the “original concept” in the
1947 National Security Act “covert activities . .. were to be carefully limited
and controlled.”"® However, as the cold war continued “we greatly increased
our covert activities . . . [to] literally hundreds of such operations going on
simultaneously.”"” He believed that “these operations have gotten out of
hand . . . Our reputation has been damaged and our capacity for ethical and
moral world leadership has been impaired.” These conclusions led Clifford to
a minimalist position: “the guiding criterion should be the test as to whether or
not a certain covert project truly affects our national security . . . [This] will assist
us ... in helping restore to our nation its reputation in the world for decency,
fair dealing and moral leadership”!

Finally, Senator Church argued that covert action should be held in reserve
for “dire emergencies.” At such times he believed “timely clandestine action on
our part might avert a nuclear holocaust and save an entire civilization.”
However, Senator Church also felt that covert action might be used to promote
“our traditional belief in free government.” To illustrate this he pointed to the


Turner 83

21. The writer has argued elsewhere that some efforts by Congress to mandate a greater legislative role
in foreign affairs are of dubious constitutionality. See, ¢.g., TURNER, REPEALING THE WAR POWERS
RESOLUTION: RESTORING THE RULE OF LAW IN USS. FOREIGN POLICY (1991).

22, See text accompanying n. 5.

23, When the United States sought to justify its attack on North Viemnam as a “reprisal” rather than as
collective self-defense against ongoing North Vietnamese armed aggression, it played into the hands of its critics
within the legal community. Similarly, relatively minor technical errors in a 1981 U.S. White Paper on
Nicaraguan aggression against El Salvador were used to discredit the entire document not only within the
‘United States, but ultimately by the majority of the World Court, See TURNER, supra n. 20, at 53, 75-76.

24, EASTWOOD & KEETON, THE AUSTINIAN THEORIES OF LAW AND SOVEREIGNTY 45 (1929)
{hereinafter EASTWOOD & KEETON]. For a detailed discussion of sovereignty, see MERRIMAN, HISTORY
OF THE THEORY OF SOVEREIGNTY SINCE ROUSSEAU (1900).

25, The French souverain (‘‘supreme, paramount; final, without appeal”) is derived from the Latin
SUPER ANUS. Concise Oxford French Dictionary 778 (1963).

26. 1 OPPENHEIM, INTERNATIONAL LAW: A TREATISE 116 (7th ed. 1948) [hereinafter OPPEN-
HEIM).

27. Id.

28, EASTWOOD & KEETON, supra n. 24, at 55. See also COHEN, RECENT THEORIES OF
SOVEREIGNTY 1 (1937) [hereinafter COHEN].

29, EASTWOOD & KEETON, supra n. 24, at 55.

30, Id.

31, 1 OPPENHEIM, supra n. 26, at 116-117.

32, EASTWOOD & KEETON, supra n. 24, at 56-57.

33, Id, at 57.

34, Id, at 58-59,

35, Id, at 60,

36. Id.

37, OPPENHEIM, supra n. 26, at 117.

38, EASTWOOD & KEETON, supra n. 24, at 70,

39, OPPENHEIM, supra n, 26, at 118.

40. ESMEIN, ELEMENTS DE DROIT CONSTITUIONNEL (6th ed. 1914).

41, FENWICK, INTERNATIONAL LAW 125 (4th ed. 1965).

42, Id, at 126.

43. GIERKE, POLITICAL THEORIES OF THE MIDDLE AGES 76 (Maitland trans.), quoted in EAST-
‘WOOD & KEETON, supra n. 24, at 42.

44, EASTWOOD & KEETON, supra n. 24, at 42,

45. Id, at 43,

46, Id.

47, COHEN, supra n. 28, at 1-2.

48. OPPENHEIM, supra n. 26, at 118-20.

49, BRIERLY, THE LAW OF NATIONS 16 (6th ed. 1963).

50, FENWICK, supra n. 41, at 48-49,

51, Id, at 126. Among other sources cited for this view are LAUTERPACHT, THE FUNCTION OF LAW
IN THE INTERNATIONAL COMMUNITY (1933); RUSSELL, THEORIES OF INTERNATIONAL RELA-
TIONS (1936); Garner, Limitations on National Sovereignty in International Relations, 19 Am. Pol. Science Rev. 1
(1925); and Coker & Borchard in MERRIAM, A HISTORY OF POLITICAL THEORIES (1935).

52, Draft Declaration on Rights and Duties of States prepared by the Intemational Law Commission on
1st Sess, (1949), reprinted in 5 WHITEMAN, DIGEST OF INTERNATIONAL LAW 25-26 (1965) [hereinafter
‘WHITEMAN DIGEST].

53, OPPENHEIM, supra n. 26, at 259.

54, Id, at 259 n. 5,

55, 1 SCHWARZENBERGER, INTERNATIONAL LAW 58-59 (1949), quoted in 1 WHITEMAN DIGEST
261 (1963).

'56, Barcelona Traction Case (Second Phase), 1970 I.CJ. Reports 3, 32 (1970).

57, Article 53 of the Vienna Convention on the Law of Treaties, May 23, 1969 [hereinafter Vienna
Convention] defines jus cagens as “a norm accepted and recognized by the international community of States
asa whole as a norm which no derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character.” U.N. Doc. A/CONF. 39/27, (1969), 63 Am. J. Int'l
L. 875 (1969).

58. See, e.g, LUNG-CHU-CHEN, AN INTRODUCTION TO INTERNATIONAL LAW: A POLICY
ORIENTED PERSPECTIVE 214 (1989).


Coll 5

India, Kautilya’s reflections on the science of politics, known as the Arthashastra,
occupy a prominent place in Indian literature and constitute one of the earliest
and most articulate expositions of the statecraft of violent peace and unconven-
tional warfare.’ The counsels with which the Arthashatra is filled are based on
the assumptions that international politics is anarchical in nature, that rivalry and
conflict are inevitable, and that the State’s survival requires as much cleverness,
dissimulation, deceit, and the employment of covert aggression as raw military
and economic power.

From Kautilya’s perspective, permanent peace among States was impossible.
In fact, one of the most striking aspects of Kautilya’s thought was his view that
a state of peace can go hand in hand with one of permanent enmity. Whereas in
the Western liberal tradition peace and amity are generally seen as logical
complements, Kautilya argued that peace and enmity are equally complementary
and are as “natural” an expression of power politics as the forced complimentarity
of peace and friendship. A State may find it prudent to arrange a truce with an
adversary of equal strength, so as to avoid a senseless war in which victory is
impossible, but such a truce is temporary in nature and subject to revision
according to the fluctuations of the balance of power. Moreover, such “peace”
need not imply a corresponding psychological condition of friendship. Under-
neath the political truce, enmity is to be continuously cultivated in the psychol-
ogy of one’s State and its long-term statecraft, in preparation for the day when
it may be possible to pounce on the unsuspecting adversary and destroy him.
Similarly, a weak State may submit peacefully to the hegemony of a stronger
one, or find itself courted by a stronger State seeking its support for containing
acommon adversary, but underlying such “peaceful” relationships is an element
of convenience which can easily disappear given the ever shifting tides of
international relations,

Every State finds itself in one of three conditions: deterioration, stagnation,
or progress. One of the statesman’s chief tasks is to evaluate correctly the actual
condition of his adversaries and respond accordingly. An opponent's stagnation
or deterioration is to be exploited without fail, while progress in his power
capabilities may require a diplomatic offensive designed to “normalize” relations
and arrange a truce so that he will not use his expanding capabilities to gain
significant political or strategic advantages.

From his personal involvement in numerous wars, Kautilya was well aware
of the high costs and unpredictability of regular “open” warfare. Hence, much
of his treatise offers detailed advice on how to carry out what we would call
“covert” or unconventional warfare. Of particular importance were intelligence-
gathering, acts of destabilization, intensive resort to propaganda and psychological
warfare, political deceit and pretense, outright treachery and assassination.
Unconventional warfare might be carried out in the context ofa political strategy
in which the statesman, playing the part of a snake charmey,. would lull the


34 Legal & Moral Constraints on Low-Intensity Conflict

‘World War II and that may have prevented the successful democratic transitions
of Germany and Japan after that war).

Most recently, abundant examples may be found relating to the overt Iraqi
aggression in the Gulf conflict. Thus, Professor Abram Chayes questioned
whether, following early Security Council resolutions on the Gulf conflict, there
was any right of collective defense remaining under Article 51 of the Charter.!!
Professor Al Rubin urged the extraordinary position (effectively supporting
quick armored invasions) that following the total occupation of Kuwait there
‘was no lawful Kuwait government to request collective assistance against Iraq’s
aggression.!2 Professor Oscar Schachter, generally one of the most sensible
observers of use of force law and who, in fairness, demolished the Chayes
argument, opined with virtually no discussion that the coalition force bombing
of Iraq was disproportionate and that it would have been illegal under Article 51
of the Charter for the coalition to have gone to Baghdad and replaced the Saddam
Hussein government. Professor Burns Weston, while conceding that the
coalition action was lawful, condemned it as resulting from impermissible United
States and British arm twisting in the Security Council.'* Even the Secretary
General of the United Nations at one point proclaimed the silly proposition that
after three months (to permit the necessary military build-up for an effective
response and to give peace efforts a chance) the right of collective defense under
Article 51 of the Charter had been lost.'* And, of course, the usual polemicists
were actively at work. Former United States Attorney General Ramsey Clark
worked with a “National Coalition to Stop U.S. Military Intervention in the
Middle East” and toured the world charging the United States with war crimes
and crimes against humanity in its conduct of the Gulf! hostilities.'® A statement
by Ramsey Clark said:

The commission accuses the U.S. of preplanning war, blocking negotiations,
controlling the media, manipulating the United Nations, deliberate genocide and
other. ‘crimes against humanity and violations of the U.N. Charter and international
law.

Although Clark had previously expressed an intention to present evidence of
Iraqi war crimes in Kuwait, the agenda released for his “war crimes tribunal”
included no such testimony.'®

Similarly, William Arkin, Director of Military Research at Greenpeace, and
Director of Greenpeace’s Nuclear Information Unit, co-authored a report that
focused on the environmental issues in the Gulf War. This report goes lightly
on condemnation of Saddam Hussein’s illegal environmental terrorism in the
Gulf and projects an overall impression that the environmental damage in the
Gulf conflict is really an inevitable part of “modern warfare.” In a classic, and
shockingly anti-environmental, example of the auto-immune disease, this “case


Turner 79

disproportionate destruction of life or property in the State where the rescue takes
place. Whether a State may intervene with military force in the territory ofanother
State without its consent, not to rescue the victims but to prevent or terminate
human rights violations, is not agreed or authoritatively determined. Such inter-
vention might be acceptable if taken pursuant to resolution of a United Nations
body or of a regional organization such as the Organization of American States.”

Intervention On The High Seas

International law recognizes universal criminal jurisdiction over certain
heinous crimes and expressly gives warships authority to board, inspect, and if
warranted, ultimately use force against foreign ships (other than warships)
thought to be engaged in the slave trade or piracy. But note carefully that the
definition of piracy in applicable treaties, (as vessels engaged in international
terrorism on behalf of sovereign States) may well not fall within the definition.
There is no general right to board or seize foreign ships on the high seas, but a
ship engaged in the use of armed force against foreign States or their citizens may
be the object of necessary and proportional defensive measures.

Draft Guidelines for Using Force
in Low-Intensity Situations

The prohibition against interfering with the political independence or ter-
ritorial integrity of other States is a fundamental rule of international law reflecting
the modern law of sovereignty. The United States should not engage in such
conduct except when essential to defend its legal rights.

As a general principle, it is suggested that military force may be used (or
threatened) pursuant to these guidelines: " 125

(1) There must be a breach of State responsibility on the part of the State against
whose territory the use of force is being contemplated, e.g.:

a. The terrorist attack or other prior use of armed force was a conse-
quence of the actions of the foreign Government or its agents (e.g., the attack
involved members of the State military force or was significantly organized
and funded by the State); or

b. The State from which the wrongful use of force was mounted must
have known, or must have been in a position where it reasonably should
have known, that the attack(s) were being planned; and it must have failed
to take reasonable steps to prevent the attack(s); and

(2) Peaceful means of resolving the dispute must have been exhausted (or it must
be clear that they would not succeed); and

(3) The level of force used must be limited to that necessary to bring an end to
the unlawful threat to the State; and


222 Legal & Moral Constraints on Low-intensity Conflict

authored by Westerners. Some work, Some documents very probably were
initiated by controlling factions in developing countries who wished to circum-
vent international pressures of domestic reform.

I submit to you that many of these core values do represent a code that is
shared by a large part of the world. I think central among these core values is the
notion that the individual is to be valued for himself and that people are equal
in this respect. They’re to be treated equally, and that they’re not to be subjected
to coercion in ways that violate due process. These ideas are spelled out with
remarkable precision in the small group of documents that make universal moral
claims. I’d like to drop a footnote here. There’s no question that the application
of these documents by various international commissions is subject to variation,
but even allowing for various interpretations, the core values are not com-
promised. Now, I would submit to you that the Chinese people, certainly not
the government, but all those who labor under its yoke and those who gathered
at Tianamen would agree with us that belief about the dignity of the individual
and his right to equality under law entail democracy. After all, democracy
essentially is a system of government in which limits are placed on the coercive
powers of the regime over its citizens in order to secure individual rights.

The consequence of accepting Father Winters’ theory, which may be correct,
is that we lose all possibility of making judgements other than through an
ethnocentric lens and I think most of us know what this leads to. I submit to you
that these values have indisputably become common articles of faith among
peoples throughout the planet and this obliges us to honor their expectations of
liberal treatment by intervening to help those suffering under despotism.

FR. WINTERS: If I can just respond to that. One specific case in which I
must say I have to disagree with you is the Gulf War. My position was that it
‘was a classically just war. And, that we had a right to go to the defense of Kuwait
even though it was not democratic and had no aspiration ever to become
democratic. I believe, moreover, that our government was extremely careful to
say that we were defending the sovereignty of Kuwait; we did not claim to be
intervening for the cause of democracy.

I believe that if you drift into the position of saying that the only legitimate
government is a democratic government, you could not make a case for the Gulf
War, and if you could not make a case for the Gulf War, you’d be making a case
for the subjugation of an independent people. I think down that road there are
some political and military impasses that we should be extremely careful to avoid.

PROF. COLL: Setting aside for a moment the equation of democracy with
political legitimacy, would you concede that the Gulf War could still have been
justified as a defense of the fundamental principle of respect for human life against
the wanton disregard for it implicit in military conquest?


Coll 17

the Reagan Administration’s supposed alarmism, was that this was the extent of
the grave military threat posed by the Grenadian regime against its Caribbean
neighbors, Only somewhat later did reports begin to filter back indicating that
the total supply of arms found on the island exceeded the wildest estimates of
USS. intelligence both in numbers and in technological sophistication. Enough
modern arms of high quality were found for an army of 10,000 (in a country of
barely more than 100,000 inhabitants). Many of them were ofa clearly offensive
nature.> Also discovered by U.S. forces, and somewhat downplayed by the
media, were unconventional treaties between the Grenadian regime and various
Soviet bloc States, providing for the supply of even more weaponry well into
1985,

Ata more practical level, unconventional warfare by authoritarian adversaries
is much more difficult to investigate because of their adeptness at deception and
manipulation of information, which in turn is facilitated by the closed and
secretive nature of their societies. Hence, by a combination of default, inertia,
and deliberate purpose, inquiry into unconventional warfare against liberal
societies receives less emphasis on the evening news or the front page of The New
York Times than revelations of involvement by democratic governments in covert
operations.

The problem of inquiry lends itself to skillful exploitation by the architects of
unconventional warfare. The disciples of Sun Tzu know the importance of
dissimulation, and they work hard to take advantage of the pluralism and
partisanship within democratic societies by sowing skepticism and confusion
about their activities. Perhaps no case illustrates this better than Nicaragua’s long
involvement in the Salvadoran civil war in the 1980s. The first State Department
reports in 1981 documenting arms shipments from Nicaragua to El Salvador were
received by the U.S. media with wide skepticism bordering on hostility.?° It did
not make much ofa difference that shortly thereafter the Democratic-controlled
Permanent Select Committee on Intelligence, which had access to the relevant
classified information, found in two separate reports in late 1982 and mid-1983
that the evidence of Sandinista and Cuban support for the Salvadoran guerrillas
was ample and credible.”” Nor did it matter that successive defectors in 1983,
1984, and 1987 respectively from Nicaraguan counter-intelligence, the Cuban
Ministry of Planning, and Cuba’s intelligence services (DGI) confirmed that the
involvement was not limited to the supply to weapons, but also included training,
command and communication facilities in Nicaragua within driving distance of
Managua, and economic assistance.* While the evidence of illegal Nicaraguan
involvement in the civil war was solid, it was rendered politically irrelevant by
the fact that the Sandinistas succeeded in persuading important segments of the
media and Congress that what was involved was a set of exaggerations and
outright fabrications by a knee-jerk interventionist Administration obsessed with
Nicaragua.


152 Legal & Moral Constraints on Low-Intensity Conflict

bello of just war tradition are simply objectifications of the way people in our
culture normally think when they make moral judgments about war and other
uses of force. That is, without prompting from theologians and philosophers, we
tend to think in terms requiring just cause, appropriate authorization, right
intention, and so on.

Formal signs of the presence of just war tradition are not only useful
reference-points in themselves but support the claim that there is a pervasive
though informal presence of the just war norms as well. I will identify three major
areas in which just war tradition is formally present: international law, military
codes of conduct, and the theological and philosophical debate.

1. Just War Tradition and International Law. International law on war
has historically been one of the vehicles for development of just war thought
within the broader just war tradition. In this relationship, the categories are those
of just war tradition in its classic form, while the content of the categories is
drawn from specific provisions of the contemporary law of war. That these
provisions are not identical with the content of jus ad bellum and jus in bello
summarized earlier simply underscores the fact that international law is one
among several major tributaries of the broader tradition, each of which has its
own concerns and develops the tradition within its own limits.

‘What emerges from this comparison is that international law truncates the
broader tradition in certain respects. The links are plain, nevertheless. This
relationship means, among other things, that to draw out fully the implications
of international law in a particular case, interpreters should bear in mind the
moral wisdom of the broader tradition. The somewhat embattled notion of
defense found in contemporary international law thus can be better understood
when it is recognized that “defense” in this context includes not only just cause,
but also the classic just war categories of recovering something wrongly taken
and punishment of wrongdoing.

2. Just War Tradition and American Military Manuals on War. There
is a long tradition, dating back to the early modern era, of manuals of military
conduct that render concretely the more abstract content of normative western
thought on war. The earliest such manuals in the United States were written
chiefly to regulate civil-military relations. A corner was turned, however, with
the Civil-War era General Order No. 100 of 1863, prepared at the behest of the
General-in-Chief of the Union Army by a commission that included a professor
of international law, Francis Lieber. “Lieber’s Code,” as the manual is sometimes
known, differed from earlier regulations in two important ways. It focused on
the conduct of war, not the barracks life of the soldier. It also defined the limits
of allowable practices in war by reference to the extant body of customary
procedure and systematic juristic theory. These customs and theories defined
international law on war ina time when it had not yet been formulated in specific
treaties and international agreements. General Order No. 100 set the pattern for


Coll and Shultz 341

Commenting on Sparta’s glorification of war, Aristotle linked it to the
teachings of her statesmen concerning the nature of the good life:

their whole system of laws is directed to securing only a part of virtue, military
prowess, as being valuable for conquering. Hence the Spartans were stable enough
while at war but began to decline once they reached a position of supremacy; they
did not understand how to be at leisure, and never engaged in any kind of training
higher than training for war.

Aristotle suggested that this perspective was not only morally incorrect, but
dangerous to the internal well-being of the regime.® As Richard Sears notes,
“the implications of this seems clear: foreign policy can and ought to be evaluated
on the basis of its correspondence or lack of correspondence with the principles
of the good life . . . This is desirable both for moral reasons and because there is
a close link between morality and political health or stability,”

With this in mind we now turn to Thucydides. This may seem, at first, to be
inappropriate. After all, Thucydides is frequently presented in the literature on
international relations as a forerunner of contemporary realism and is associated
with Machiavelli and Hobbes. It is on the basis of the often quoted Melian
dialogue that Thucydides is described as a realist. Yet, Thucydides gives no
indication that he approved of Athens’ cruel treatment of Melos and its in-
habitants. He simply described those events with the kind of impassioned
objectivity one would expect of a first-rate historian. If there is a hero in
Thucydides’ History of the Peloponnesian War, it is the Athenian statesman Pericles,
whom Thucydides clearly admired, and whom Aristotle cited in his Ethics as the
paragon ofa prudent statesman.

Through Pericles’ Funeral Oration, Thucydides makes clear the linkage
between prudence, virtue, free institutions, the nature of the Athenian regime
and her successes at home and abroad. The speech is in honor of the first dead
in the war. Pericles praised Athenian nobility, virtue, moderation and superiority
in several ways. He asserts that Athens stands as a model for all cities: “Takin;
everything together then, I declare that our city is an education to Greece.”®
Why was this so? Because of the institutions upon which Athens was based:

Let me say that our system of government does not copy the institutions of our
neighbors. It is more the case of our being the model to others . . . Our constitu-
tion is called a democracy because power is in the hands not ofa minority but of
the whole people. When it is a question of settling private disputes, everyone is
equal before the law; when it is a question of putting one person before another
in positions of public responsibility, what counts is . . . the actual ability which the
man possesses... We are free and tolerant in our private lives; but in public affairs
we keep to the laws. This is because it commands our deep respect. We give our
obedience to those whom we put in positions of authority, and we obey the laws
themselves.*


Index

public support, importance of, 205, 207, 233
“reform” intervention, removal of South Viemamese government (1963), 210
“Violent peace,” 3
Kautilya’s Arthashastra, 4-6
Machiavelli's “The Prince,” 8-10
Sun Tau’s “Art of War,” 6-8
Virtue theory, defined, 89
Vitoria of Salamanca, 150, 171-172, 175-176
Volunteers in just war, 100-101

Ww
‘Waiver or forfeiture of rights
illegitimate governments, low-intensity operations against, 102-104
social contracts, breaking of, 99-100
‘War: See more specific topics

‘War-avoidance: See Avoidance of war, 184
“War-conduct law” (jus in bello): See just war theory or tradition
‘War crimes

Nuremberg war crime principles, 128, 294

seizure of war criminal as violation of nation’s sovereignty, 102
“War-decision law” (jus ad bellum): See Just war theory or tradition
‘War Powers Resolution

described, 266, 280-281, 292, 300, 309, 318

presidential refusal to accept principle of, 187
‘Weapons of mass destruction

maniacal states: See “Crazy states” factor

military culture oriented to, 269

proliferation of, ethical considerations, 178, 219-220

Security Council, future auditing function of, 299

self-defense

anticipatory self-defense, 75, 77-78, 128, 223-224, 294
tight to, 65

“Weinberger doctrine”: See Shultz-Weinberger debate
‘Wimbledon case, self-imposed limits placed on sovereignty, 58
‘Women's rights, Muslim nations’ refusal to endorse, 127
‘Words and phrases: See specific definitions
World War I

international law, collapse of, 181

role of anticipatory self-defense in, 75
World War Il

international law, collapse of, 181

Skorczeny, Otto, 274
Wrong...: See Right...
‘Wrongfiil taking of property, just war tradition as including recovery of, 212, 257

Zz

Zealotry: See “Crazy states” factor
Zia, assassination of, 327

387


Panel Discussion 117

additional sorts of participants. There are various intergovernmental actors and
even individual citizens have become incorporated as active subjects. Neverthe-
less, the principal actors remain States and, therefore, it is a relatively small
community. In such a community, certain expectations about behavior emerge,
and a leading participant in that community, like the United States, strongly
influences those expectations, i.e., that sense of what kind of behavior is
acceptable in carrying out national objectives and what kind of behavior is
unacceptable. The essence of Bob’s reciprocity point, then, is the role we
inevitably play in shaping other nations’ perceptions of what they are entitled to
do in pursuit of their goals.

In terms of basic values, a conception of what our national goals ought to be,
Bob and I are very close. And yet, I do find his paper disturbing, and not only
because ofa certain completely unconscious tone of condescension which it often.
assumes in discussing people who disagree with his views. Its least appealing
feature brings to mind Winston Churchill’s comment toward the end ofa country
house dinner of many courses concluding with a pudding. Churchill took a
mouthful, put down his spoon, glared at the master of the house and said, “this
pudding has no theme.” With a good deal of rhetorical exaggeration one might
say as much of Bob’s paper. While it is short on theme it does have an implied
world view and a series of discrete propositions. The view that came through to
me could be summarized as follows:

The USS. is a gentle giant in a world divided between peace-loving,
anti-interventionists, ourselves foremost among them, and the aggressive,
radical, lawless scum.

I call your attention in that connection to the very first paragraph of his
executive summary when he speaks of “traditional American values such as
nonintervention.” If you made that statement to any Latin American forum that
I’ve ever been in, you would be laughed off the stage: The United States a
non-interventionary power? Bob is a great enthusiast for executive power in the
area of foreign affairs. Many of the precedents for the use of executive power
arise, of course, from U.S. intervention in Latin America.

I’m not making a normative point here. I’m not saying whether those
interventions were good or bad. I simply note that we have employed interven-
tion frequently in this century. We had marines in one or another country in the
Caribbean basin virtually for the entire period from 1900 to 1933. We liberated
Cuba from the Spaniards and immediately intervened and occupied it, and only
left after the Cubans accepted the Platt Amendment, which allowed us to reenter
Cuba whenever we chose to. We have used intervention frequently in the
postwar period too. We may have used it wisely. We may have used it unwisely.
But to suggest that nonintervention is part of the American tradition is simply


PART ONE

INTRODUCTION


Panel Discussion 279

At the upper end of the spectrum, when low-intensity conflict operations
contemplate the taking of human life or the destruction of property, the principle
of self-defense and, indeed, many of the principles of conventional warfare would
come into play.

The application of moral principles to low-intensity conflict presents its own
challenges. Low-intensity conflict operations could be undertaken in a proactive
mode to prevent an evil from occurring. As was observed earlier in the discussion,
moral principles per se are infrequently considered by U.S. decision makers in
the midst ofa low-intensity conflict crisis. My experience, however, is that moral
principles do play an important, albeit implicit, role in crisis management. Our
decision makers instinctively apply principles of just war, proportionality and
humanitarianism in the development of policy options. In simple terms, the
applicable moral standard is: one can only launch an operation that involves the
taking of life if there is an overwhelming and immediate threat to our vital
national security interests and no alternative non-violent means of meeting the
challenge.

Although a multilateral response to threats is always preferable, the United
States must preserve its ability to undertake effective unilateral low-intensity
conflict operations. Our effectiveness in conducting operations in this shadowy,
nebulous arena will in large measure determine our security for the forseeable
future.

[After a short break in the proceedings, Rear Admiral Harlow reconvened the
conference participants and introduced the next two discussants, Judge Abraham
Sofaer and Mr. Kenneth De Graffenreid.]

JUDGE SOFAER: When Alberto asked me to speak here, I couldn’t help but
think that Admiral Mahan, whose portrait we see in the next room, would think
that this is a good idea. Low-intensity conflict is one of the critically important
dimensions of military strategy. To deal effectively with insurgencies aimed at
democratic allies and with State-sponsored terrorism, we need the capacity to
act militarily, but with flexibility and speed. The concept of low-intensity conflict
also includes many of the most challenging threats to our interests. The United
States continues to be faced with conventional wars. However, they seem more
likely than not to be the product of the perversity of our enemies. Forms of
low-intensity conflict provide a far more promising vehicle than conventional
war for attacking well-armed Western States. I keep thanking the Lord for the
fact that the madmen of the world seem not to have read Bill Casey’s excellent
book about the effectiveness of low-intensity techniques and have thus far lacked
the discipline to master them. But, the increasing use of these techniques is
inevitable. I believe that Assad is a classic example of the leader who shows the
discipline to utilize covert low-intensity techniques to attack his enemies. Such


Turner 45

Unlike many of his contemporaries and others even today, Jefferson recog-
nized that abiding by the rule of law was in the long-term self-interest of
sovereign states. In a letter to his friend Lafayette, written on 2 April 1790,
Jefferson wrote:

I think . . . that nations are to be governed with regard to their own interests, but
I am convinced that it is their interest, in the long run, to be grateful, faithful to
their engagements, even in the worst of circumstances, and honorable and
generous always.?

Similarly, in an 18 April 1793 “Opinion on whether the US had a right to
renounce treaties with France following the French Revolution,” Secretary of
State Jefferson argued:

Compacts . . . between nation and nation, are obligatory on them by the same
moral law which obliges individuals to observe their compacts . . . [I]t is true that
nations are to be judges for themselves; since no one nation has a right to sit in
judgment over another, but the tribunal of our conscience remains, and that also
of the opinion of the world. These will review the sentence we pass in our own
case, and as we respect these, we must see that in judging ourselves we have
honestly done the part of impartial and rigorous judges.

This emphasis upon morally upright behavior was reflected in much of
Jefferson’s writing. In a letter to James Madison—who served as Jefferson’s
Secretary of State and succeeded him as President—Jefferson wrote on 19 April
1809: “[I]t has a great effect on the opinion of our people and the world to have
the moral right on our side.”

Ina 28 July 1791 letter to William Short, who had been his private secretary
in Paris and was then American chargé d’affaires in Paris, Secretary of State Jefferson
said: “If there be one principle more deeply rooted than any other in the mind
of every American, it is, that we should have nothing to do with conquest.”® As
we seek legal solutions to the complex challenges we face in the low-intensity
conflict environment, it is imperative that we not lose sight of this “peace through
justice” compass.

Jefferson’s “peace through justice” theory was complemented by a well-
reasoned belief in the need for military strength. In a 23 August 1785 letter to
John Jay—who served as Secretary of Foreign Affairs in the Continental
Congress—Jefferson reasoned:

Justice . .. on our part, will save us from those wars which would have been
produced by a contrary disposition. But how can we prevent those produced
by the wrongs of other nations? By putting ourselves in a condition to punish
them.


O'Brien 201

decisions about recourse to armed coercion. While a complete abandonment of
international war-decision and war-conduct law is not justified, it is clear that
decision-makers require supplementary or even alternative analytical frameworks
in order to make good policy decisions. Modern just war doctrine can provide
such an alternative analytical framework. Depending on the problem and the
relevant international law, just war doctrine can either complement international
law or simply replace it as the primary source of normative guidance.

This paper has shown how systematic application of the just war categories
can provide a much more comprehensive and realistic basis for decision than
contemporary international law in dealing with problems of armed intervention
in revolutionary/counterinsurgency wars and deterrence and defense against
terrorism. The paper concludes with a preliminary foray into the question of
using armed coercion to attack the international drug trade. On first impression,
it appears that it is easier to justify the use of force against the international drug
trade if the action is part of an overall just intervention in a revolution-
ary/counterinsurgency war. It is much more difficult, while prescinding the
international drug trade from its links to corrupt governments and revolutionary
movements, to think through the possibilities of using armed coercion against
it. This task may be undertaken in future studies. The best way to approach it
would be for experts on the international drug trade to provide basic background
information to just war analysts and pose to them scenarios involving the use of
armed coercion against specific targets considered critical to the operations of the
drug trade. Just war analyses would then undertake to perform the fundamental
function of assessing the means and consequences of recourse to armed coercion
in context and their proportionality to the good ends sought, in the light of the
probability of success.

Notes

*Dr. William O'Brien is a Professor in the Department of Government at Georgetown University.

1. See Weinberger’s speech to the National Press Club on November 28, 1984, revised in “The Uses of
Military Power,” and Shultz’ speech at Yeshiva University on December 9, 1984, revised in “The Ethics of
Power” in ETHICS AND AMERICAN POWER 1-10 (Lefever ed. 1985).

2, Department of Defense, Conduct of the Persian Gulf Conflict, An Interim Report, 1-2, 4~4, 12-2-4 (July
1991),

3, Professor Johnson and I, as well as other just war scholars such as Fr. J. Bryan Hehir and Fr. John Langan,
have lectured on just war at the war colleges and service academies. Students at these institutions read
contemporary just war books and sclected chapters and articles, some of which are reproduced in study materials.

4, Article 51 provides:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense
fan armed attack occurs against a Member of the United Nations, until the Security Council has taken
the measures necessary to maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defense shall be immediately reported to the Security Council and shall
notin any way affect the authority and responsibility of the Security Council under the present Charter
to take at any time such action as it deems necessary in order to maintain or restore international peace
and security.


114 Legal & Moral Constraints on Low-Intensity Conflict

of this particular hat, and in seeing human rights and justice as constraints on the
pursuit of interest, Teson has at least got the right rabbit.

There is, however, a more practical and less dangerous way of seeking to
secure respect for the principles of justice and human rights embedded in
common-sense morality, and this is to insist that U.S. low-intensity operations
respect both U.S. and international law. This does not mean that the relevant
laws are uncontroversial, or that they are beyond criticism and the need for
reform. But nothing is more important than improving and respecting our public
standards for conducting foreign and military policy. And in interpreting the law,
one must keep firmly in mind the basic idea of legality or the rule of law, and
resolutely reject higher-law and instrumentalist interpretations that seek to get
around constraints on the pursuit of moral goals or national interests.

Finally, we must not forget that there is much to be learned from earlier debates
about the morality of war and intervention. Because the principles at stake are
those that have long shaped international relations, the current debate regarding
the scope and limits of permissible low-intensity operations, especially in relation
to the norms of sovereignty, is very much a continuation of the old debate about
armed intervention.

*Terry Nardin is a Professor in the School of Social Science at the Princeton Institute for Advanced Study.


98 Lega! & Moral Constraints on Low-Intensity Conflict

Iraqi revolutionaries aimed at overthrowing Saddam Hussein is morally justified.
Similarly, counter-insurgency operations to assist legitimate, rights-respecting
governments against illiberal uprisings are morally justified, provided, again, that
the government welcomes the assistance.

In particular, it is forbidden to assist illegitimate governments (or illiberal
groups in civil wars) on the grounds that they are “friends” of the (legitimate)
government carrying out the operation. A very important corollary of the human
rights theory of international law and relations is that only legitimate governments
may be assisted. Kant’s liberal alliance is the only plausible foundation of
international law; illegitimate governments are excluded from its benefits.” This
point sharply brings out the contrast between the human rights approach and
realism. Many realists have maintained that in foreign policy we should help our
“friends,” even if they are despicable dictators. Leaving aside for the moment
the very plausible claim that such policy is disastrous in the long run, the human
rights theory condemns this view as profoundly immoral.*

This definition, however, is still very general, and at first blush many will find
it unsatisfactory. One possible objection is the one from State sovereignty. A
low-intensity operation may be conducted in such a surgical way that no one’s
rights are violated, yet the sovereignty of the target State would still have been
punctured. This objection overlooks the fact that State sovereignty is also
grounded on human rights. It follows that whatever arguments are given for
respecting State sovereignty (and these can only be human rights arguments) will
have to be balanced against the human rights arguments offered to justify the
low-intensity operations. This assertion needs to be explained. I turn now,
therefore, to the examination of the principles that underlie and justify State
sovereignty.

IV. The Justification of State Sovereignty

Low-intensity operations violate the sovereignty of the target State. We saw
that in some cases there are moral reasons to make war. The overriding aim of
a just war is the protection of human rights. A government's war in defense of
the rights of the citizens which are being violated by a foreign aggressor is called
self-defense. A government’s war in defense of the rights of the citizens of the
target State which are being violated by their own government is called
humanitarian intervention.

The twin principles of State sovereignty and nonintervention are among the
best established precepts of international law. A liberal conception of politics is
one in which the just civil society protects and recognizes basic human rights of
the type found in modern constitutions or in pertinent international instru-
ments.”® A liberal conception of State sovereignty has to be consistent with the


244 Legal & Moral Constraints on Low-Intensity Conflict

brake upon certain conduct. It’s dangerous to carry that too far because it is, I
suppose, an undefined characterization of the American will, if you were to
generalize it, but nonetheless I think that it has been a factor in decisionmaking
in the United States of America for a long time.

PROF. COLL: Jack McNeill.

MR. MCNEILL: I just wanted to comment on the idea or the thesis that
international law is so inflexible, one should lock very carefully at an alternate
set of complementary rules. I can certainly see the value of the just war analysis
in the policy context, but I don’t think we should give up on the international
legal perspective. Although I certainly agree with Professor Farer’s comment
earlier, about the body of opinion that seems to prevail among European
academicians and others, and their low regard for legal theories the United States
has propounded regarding Panama, Grenada, end Libya, I think we have to
remember that even though we may stand alone, the practice of States is a very
important source of international law. If we have reached our conclusions by
applying the law as we understand it in good faith, though with perhaps greater
flexibility than is observed elsewhere, having preserved the integrity of our
process, then we can say that our actions are legally defensible. We should not
be cowed by the collective wisdom of other nations. We have to take it into
account, but we have our own responsibilities within the United States to advise
decisionmakers as to what the law genuinely is and how to apply it to the best
of our ability.

PROF. COLL: We have time for only two more interventions. Michael
Reisman and John Collins.

PROF. REISMAN: I'd like to go to the question that Alberto put to us at the
beginning of this discussion period. Perhaps I can approach it by going back to
some observations that were made from the floor.

I agree with Jack’s final comment. First off, I don’t think that Tom is correct
in saying that European professors who have spent a good deal of time pontificat-
ing on the law all criticize us. Many of them, in fact, particularly French lawyers,
are quite supportive of much United States action. The jury, if that is the jury,
is much more mixed than Tom suggested. The point is that 25 or 30 European
professors, some of whom may have cultivated a style that implies they commune
with the dead before they issue it, have strongly criticized us. It’s absurd to think
that 25 or 30 professors, most of whom are out of touch, are part of this
extraordinarily rich process that you struggle with every day. The fact of the
matter is the lawyers in government are not international lawyers either. This is
an extraordinarily rich process that’s woven in a very complex international


Coll and Shultz 335

the covert action as such or with the paramilitary operation as such. It has been
with the policy itself.”

Likewise, Angelo Codevilla, who often has criticized the CIA for its inability
or unwillingness to function as a “full service” intelligence agency, believes that
covert action should be considered as a normal and not an exceptional instrument
of statecraft.2® He writes that “secret means of exerting influence are part and
parcel of foreign affairs, intrinsically no more and no less appropriate than other
means.” For Codevilla, a foreign policy initiative is generally pursued through a
combination of open and secret means. Consequently, covert action makes sense
only as part of “broader campaigns to achieve foreign policy objectives.”?? It
should not be thought of as something distinct from policy or a substitute for it:

The term covert action does not denote a category of human activity distinct from.
foreign policy and its execution, nor even a distinct category of means. Rather,
the term covers certain means used by governments in a peculiar way, that is,
secretly, for political purposes . . . Present-day America is unique in classifying
these means under a single label. Although history is full of examples of nations
carrying out what contemporary Americans call covert action, none but American
statesmen and writers have ever set these actions apart from those of overt political
activity. That is because, apart from a greater degree of secrecy, the means of covert
action do not appear different from those of overt political activity.”

The theoretical basis for the proposition advanced by Gelb and Codevilla—
that covert action is not beyond the pale of normal international politics but one
of the instruments of power and influence to be employed in carrying out foreign
policy objectives—is, in tone and approach, quite Clausewitzian. The German
theorist viewed war as “an act of force to compel the enemy to do our will.”
Armed conflict is only a means to a political end without which war becomes
“pointless and devoid of sense.” The same is true of covert action for Gelb and
Codevilla. Clausewitz frequently stated in On War that “war is nothing but the
continuation of policy by other means.”“! In other words, the use of force is an
instrument of statecraft and not a substitute for it. When war begins, politics does
not end:

[War in itself does not suspend political intercourse or change it into something
entirely different. In essentials that intercourse continues, irrespective of the means
it employs. The main lines along which military events progress, and to which
they are restricted, are political lines that continue throughout the war into the
subsequent peace. How could it be otherwise? Do political relations between
peoples and their governments stop when diplomatic notes are no longer ex-
changed? Is not war just another expression of their thoughts?

Insum, Clausewitz saw war not simply as an act of policy but as an instrument
to be employed in the pursuit of that policy. War should not be thought of as


Chapter X

American Strategic Culture in Small Wars

by
Carnes Lord*

hat the United States has had great difficulty bringing its military estab-

lishment effectively to bear in limited conflict situations is hardly a secret.
From Vietnam in the 1960’s through Grenada and Lebanon in the early 1980’s
to El Salvador in very recent years, the track record of U.S. involvement in
contingency operations as well as protracted revolutionary warfare in the less
developed world is spotty at best, with serious flaws apparent even in victory. In
general, the United States has reaped a disappointing return in such conflicts from
what have often been major investments of its material, moral and political
resources.

Clearly, a number of different factors work together to constrain the perfor-
mance of the American government in low-intensity or limited warfare environ-
ments. At the most general and fundamental level is what one may conveniently
call “American political culture”. Not only is our nation formally a democracy;
Americans are a deeply democratic people. Democratic or egalitarian attitudes,
and the manners and morals that flow from them, have a great deal to do with
the way Americans view governments in the less developed world and the way
they interact with individuals in less developed societies. While in some respects
a great strength, this has often acted as a severe limitation. But other aspects of
our political culture are also of importance in this connection. Beyond
democracy, America is heir to powerful traditions of political liberalism —
limited government and the rule of law — and of religious enthusiasm and
moralism. Finally, Americans are a pragmatic people, with a tendency to seek
technical solutions to isolated problems and a preoccupation with the here and
now at the expense both of the past and the future. This means, among other
things, that Americans tend to lack the historical memory that is critical for
understanding other cultures, as well as the future orientation and holistic
thinking that are the preconditions for strategy.

American political culture affects the activities of the U.S. government in a
number of ways. In the first place, it is absorbed by government officials from.
the various institutions of the culture — schools, universities, churches, films,
television, and the press. Secondly, it acts on them through the medium of public


100 Legal & Moral Constraints on Low-Intensity Conflict

The main reason for this loss of moral legitimacy is practical. If a tyrannical
government enjoys the protection of international law it can continue to oppress
its people with impunity.

It is possible, however, that even the horizontal contract may collapse, that
the civil society may itself disintegrate. Or there may be an illegitimate, spurious
social contract, one that does not provide for respect of basic human rights. In
these cases, the State is illegitimate, Of course, a fortiori, the government will be
illegitimate, since the vertical contract exists at the sufferance of the horizontal
contract. In this case also, as in the case of the collapse of the vertical contract,
individuals, who can no longer be called citizens, have not forfeited their
individual rights. Stateless people, persons in the State of nature, hold individual
rights. (Imagine that in an unexplored, remote area of the globe we discover
individuals who do not have any political or social organization, who just wander
in the region. Human rights, I take it, would accrue to them, although I will not
attempt to prove this point.) Foreigners, and in particular foreign governments,
must respect the human rights of the individuals that reside in that putative State
notwithstanding the collapse of the horizontal social contract.

Yet if the horizontal contract collapses, citizens do not have a claim to life in
common anymore. Foreigners, therefore, are not under as stringent a duty to
respect that “society” as in the case of collapse of the vertical contract. They must
respect individual human rights, but there is no more social contract to respect.
The individuals, not the State or the society, are all that is left.

To summarize: A State is entitled to the complete protection of State
sovereignty afforded by international law when it is founded upon a legitimate
horizontal contract and a legitimate vertical contract. A State is entitled to a lesser
sovereignty protection when the vertical contract has collapsed. While human
rights and the right to a life in common ought to be respected, the illegitimate
government and its instrumentalities are not entitled to protection. Finally, when
both the horizontal and vertical contract have collapsed, the individuals that
reside in the State are entitled to respect for their individual human rights.

‘We turn now to the application of these principles that support State
sovereignty and how they can preclude the pursuit of low-intensity operations
by foreign governments. I shall start with the somewhat easier question of the
moral standing to undertake a low-intensity operation.

V. Who Can Undertake a Low-Intensity Operation

The first consequence of the foregoing considerations is that only a legitimate
government has moral standing to carry out a low-intensity operation acting as
a government. Its members may, however, join a just war as private volunteers,
like anybody else. Thus dictators may not validly undertake low-intensity
operations. The reason is straightforward: the vertical contract is invalid, the


Weigel 263

‘War. The real question, I submit, and given the current, sad, disoriented state of
the received wisdom in the foreign policy establishment, is whether the editors
would recognize such an article if it came over the transom.

Thus I fear that we are headed for a period of intellectual instability and
fragmentation in our foreign policy thinking. The public debate, such as it is,
will likely be ad hoc and case-by-case, rather than conducted against the horizon
‘ ofa broadly agreed-upon doctrine. This does not rule out the possibility of a
national consensus emerging on an low-intensity conflict policy. It does suggest
that any such policy is likely to be rather limited in its vision.

Finally, there is the fourth estate. It had a bad war in the Gulf. When reporters
become targets of satire on “Saturday Night Live” (‘Tell us, general, if there was
one secret you wouldn’t want the Iraqis to know, what would it be?”), something
of the post-Watergate aura of the media has dimmed. And yet there seems to have
been little self-examination in the prestige press after the Gulf War. Rather, the focus
has been on challenging the press access rules that were enforced during that conflict.
Moreover, in the aftermath of the Soviet crack-up, the overwhelming majority of
media attention to the Defense Department has been focused on, yes, the budget
— which is to say, on what is going to get cut. I have discerned very little interest
to date in the broader questions of post-Cold War strategy, including low-intensity
conflict strategy: despite the fact that the resolution of these questions would be
necessary for rational force structuring and weapons procurement planning.

This is not, I should say, wholly the media’s fault; it surely has something to do
with the failures of political leadership noted above. And that fact, combined with
what seems to have been widespread public support for the ground mules set for the
press by the Department of Defense during Desert Storm, suggests again that there
are ways around a potential media “problem” with low-intensity conflict planning
and programs: if the political leadership has the wit and will to assert itself.

V. Concluding (and Decidedly Unscientific) Postscript

The collapse of communism brought to an end what can be construed as a
two hundred year-old fantasy in the Western world, the attempt to remake (and
perfect) the human condition through politics: an enterprise that began with
Rousseau’s speculations in pre-revolutionary France and that led, along a
complex historical path that proved the bitter wisdom of Richard Weaver's
observation that “ideas have consequences,” to Auschwitz-Birkenau and the
Gulag. In the aftermath of this struggle to re-assert the priority of the individual
human being, culture, and society over the polity (which, in the West, included
the struggle to resist more benign forms of governmentally-sanctioned social
engineering), we may well be headed, at least in the developed world, for what
we might call a “post-political” era. That shift in the historical templates has been
reinforced by our own domestic experience: many of the great questions on our


232 Legal & Moral Constraints on Low-Intensity Conflict

argue that both in international law and in just war doctrine, the State that
consistently permits itself to be a sanctuary and a launching pad for terrorists, is
inviting the kind of retaliatory raids that the Israelis have carried out. I guess I’m
practically the only non-Israeli who agrees with the Israeli position that all the
“law” is on the other side in the Security Council. It’s very interesting the United
States, which contributed a great deal of that law earlier on, began to back away
from it, and then in 1986, used exactly the same argument that the Israelis had
always used when we bombed Qaddafi’s terrorist base in Libya. We argued that
we could only counter a pattern of continuing terrorism by striking at its source.

This leads me to conclusions that I think are probably fairly controversial.
First, as the Israeli and U.S. governments now agree, self-defense against terrorism.
legitimately includes deterrent attacks. And second, as we concluded after the
Libyan raid, self-defense extends to protecting one’s nationals abroad against
terrorism, which legitimately involves attacking its sources.

I tried to stay away from discussing the drug trade as long as I could, but I was
asked to say something about it so I have reluctantly entered the drug battle. First
of all, it seems to me there is a problem in equating the international drug trade
with armed aggression. I think it’s going to take a great deal of thinking through
because unless it is really the equivalent of armed aggression, just war doctrine
and the international law of war won’t have much bearing on it, undesirable and
tragic as it is.

Secondly, it struck me when thinking about it, and this is particularly relevant
because of recent developments in Peru, these disciplines could come to bear
more directly on the drug trade if it was intertwined with some kind of armed.
activity or coercion. Jim Johnson discussed that in his paper. In other words, if
the Shining Path people in Peru are, at one and the same time, insurgents and
major sources of the international drug trade, intervention against them, which
I don’t particularly recommend by the way, might be seen as a legitimate
combination of counterinsurgency and counternarcotics operations.

With respect to what I call the commercial drug traffic, deadly as it is, having
no particular color, much less relation, to organized conflict, I just don’t see that
it’s appropriate to use military force against it and I have the impression that a
lot of people in the military are far from enthusiastic about the idea of getting
involved in the drug war.

My conclusions are the following. First of all, it seems to me that a good deal
of contemporary positive international law on the recourse to armed force and
on intervention is mechanical, incomplete and simply not sufficient to deal with
the kinds of conflicts that are out there.

Secondly, I think that the war conduct law is in better shape. It’s closely aligned
with just war doctrine, and I simply think that just war doctrine can contribute
further to the definition of so-called reasonableness in working out the issues of
discrimination and proportion.


Panel Discussion 291

The result of this, after about two years of agony, was the development of a
serious policy; one in which moral issues were considered. It was decided that
simply killing Russians was not the object of the covert action programs, but that
American support should be directed to driving the Russians from Afghanistan
in the most effective way possible. Whether or not you agree with that covert
action and the American presence in Afghanistan, at least through this process
‘we were able to consider the moral and legal implications of what we were doing
there in a forthright way.

That drill only partially took in further covert actions, and I suspect may not
yet be the standard government approach with regard to other forms of
low-intensity conflict. For that reason, I submit that we badly need a process to
foster the kind of debate that we forced over Afghanistan. Otherwise, two
unfortunate things will happen. First, we are less likely to have a moral American
policy in keeping with our traditions, and second, we are less likely to be able
to mount any kind of successful engagement at the lower end of the conflict
spectrum because our institutions will continue to shy away from serious
consideration of the issue. I stress here that we need to develop a sense of the
moral purpose of our policies.

I would leave you in closing with one last question about the morality of
low-intensity conflict that has not been raised. Is it better to take the measure of
a challenge today, which if left unaddressed, is likely to become much more
bloody and difficult to resolve? If, in some situations, a moral purpose can be
served by taking immediate action to prevent a worse outcome later, can we
devise a way to take this into account when weighing the moral implications of
engagement in low-intensity conflict?

Thank you.

RADM HARLOW: Thank you gentlemen. Before I open it to questions and
comments, let me make a few observations on what I felt were the highlights of
these very interesting discussions.

Two points at the outset, I think, were important. Judge Sofaer stressed the
fact that the hallmarks of low-intensity operations are flexibility and speed. I
couldn’t agree more. Flexibility, because we can in no way anticipate what the
challenge will be in the next weeks or months. And speed, because we have to
shift forces anywhere on the globe where a challenge may arise. Secondly, Ken
deGraffenreid made the point that low-intensity warfare offers the opportunity
to reduce the level of violence later in the process. One may look at it as an
opportunity to limit the damage of a confrontation through early action that is
clear and decisive. I believe this is an important feature of low-intensity conflict
not shared by conventional warfare.

Judge Sofaer pointed out that we have a whole range of domestic constraints:
statutory, regulatory and of course, moral. Additionally, we have international


viii Contents

CHAPTER VI-—JUST WAR TRADITION AND LOW-

INTENSITY CONFLICT

James Turner Johnson... 1 ee ee ee ee 147
COMMENT

Francis X. Winters. 0 ee ee 171

CHAPTER VII—JUST WAR DOCTRINE’S COMPLEMEN-
TARY ROLE IN THE INTERNATIONAL LAW OF

WAR

William V. O’Brien 60 6 0 ee ee ee 181
COMMENT

William G. Eckhardt. 0 6 0 ee ee 205

CHAPTER VIII—PANEL DISCUSSION: MORALITY
AND THE JUST WAR TRADITION
Alberto R. Coll, Chair 2... 1 ee eee ee ee eee 209

PART FOUR—U.S. POLITICAL AND CULTURAL
CONSTRAINTS ON LOW-INTENSITY CONFLICT .... 249

CHAPTER IX—-LOW-INTENSITY CONFLICT IN THE
POST-COLD WAR WORLD: THE AMERICAN
MORAL-CULTURAL ENVIRONMENT

George Weigel © 6 0 we ee ee ee 251
CHAPTER X—AMERICAN STRATEGIC CULTURE IN
SMALL WARS
Cames Lord 6 6 ee ee ee ee 265

CHAPTER XI—PANEL DISCUSSION: DOMESTIC U.S.
CONSTRAINTS ON LOW-INTENSITY CONFLICT

Bruce A. Harlow, Chair 6 6 we ee 273
CHAPTER XII—ROUNDTABLE DISCUSSION

Alberto R. Coll, Chair 2. 6 ee ee ee ee ee ee 303

PART FIVE—CONCLUSION .... 2-22 eee eee eres 323

CHAPTER XIII—CAN AMERICAN DEMOCRACY
EMPLOY COVERT ACTION AS AN INSTRUMENT
OF STATECRAFT?
Alberto R. Coll and Richard H. Shultz, Jr... 6... ee eee 325


Turner 77

then in moral terms it would be rather easy to justify a pre-emptive or “an-
ticipatory” use of force to protect the target of the planned aggression. The
difficulty is that the world community may not be cognizant of the intelligence
information which justified the action; and a general rule permitting States to
attack their neighbors if they subjectively believe they are about to be attacked
would open the door for a wide range of aggressive actions disguised as
“anticipatory” self-defense. Saddam Hussein might even signal Kuwait privately
that he was contemplating invading his tiny neighbor, and if Kuwait responded
by sending more forces toward the border Saddam might present photographs
of this “buildup” to justify his measures of “anticipatory self-defense” to the
Security Council.

It would not be difficult to establish meaningful constraints upon a doctrine
of anticipatory self-defense if all States could be expected to act in good faith;
but were that the case Article 2(4) itself would likely solve all use of force
problems. If a State has overwhelming evidence that it is about to become the
victim of an imminent armed attack—especially if the correlation of forces or
the existence of weapons of mass destruction in the potential aggressor’s inven-
tory might make meaningful defense impossible if the initial attack succeeded—it
is not unreasonable to permit the probable victim to respond preemptively.

The so-called “Caroline test’”"'® is traditionally associated with the doctrine of
self-defense, but a careful examination of the situation suggests that it might
arguably more properly be viewed as a test for anticipatory self-defense. The
incident arose in 1837, during a rebellion in Canada. A group of insurgents gained
control of Navy Island on the Niagara River and they chartered an American
vessel, the Caroline, to carry arms and supplies from the United States. A Canadian
militia force secretly crossed to the American side of the river and seized the
American boat, and in the process two American citizens were killed. The
Canadian militiamen set the steamer afire and cut it adrift. The currents swept it
down river and over the Niagara Falls. The United States objected to this
violation of American territory, and ultimately the incident led to an exchange
of views between U.S. Secretary of State Daniel Webster and British Foreign
Minister Fox. Webster argued that there must be shown “a necessity of self
defence, instant, overwhelming, leaving no choice of means and no moment for
deliberation;” and the defensive action must involve “nothing unreasonable or
excessive, since the act justified by the necessity of self-defence must be limited
by that necessity and kept clearly within it”! The Caroline test was applied by
the Nuremberg tribunal in rejecting a German contention that it was “compelled
to attack Norway to forestall an allied invasion, and her action was therefore
preventative,”!18 This was in reality a pre-Charter argument of a right of
anticipatory self-defense.

One point is clear: the proliferation of weapons of mass destruction and
effective delivery systems will make the doctrine of anticipatory self-defense even.




370 = Index

Kuwait: See Gulf War
legitimacy following Gulf War, 166
overthrow of, justification of, 103, 105
personal-level deterrence, 37-38, 128

Ideology
just war as, 315-316
‘maniacal zealotry: See “Crazy states” factor
Illegitimacy: See Legitimacy
Impartiality, problems of, 18-19
Inconsistency: See Consistency or inconsistency
India
humanitarian intervention in Bangladesh, “evidence” of, 228
nonintervention, exception to principle of, 185
Innocent host state to terrorist activities, 72-74, 232
Innocent lives or bystanders, moral culpability for sactifice of, 104
Insurgency or counterinsurgency, 3
See also more specific topics
Afghanistan, effect absence of legitimate government, 238
contemporary shift to contingency operations from, 271
human rights approach to international law, 97-98
just war tradition, 165-166, 319-320
jus ad bellum, 186-192
jus in bello principle, 256
Kuwait, “lessons” of conflict, 30
terrorists: See Terrorism and counterterrorism
Intellectual instability in post-cold war period, 260-263
Intelligence and intelligence-gathering
Congressional investigation of (1970s), 328
espionage, intelligence viewed as, 309
expansion of US military role in, 270-271
FM27-10 permitting, 195, 230-231
just war doctrine applied to, 276-277
national security, Congressional challenge to executive contzol, 268
“operating in the dark,” difficulty of making informed decisions, 243, 292
secret intelligence support as classification of covert activities, 327
U2 spy planes, use of civilian pilots in, 276
Intelligence Authorization Act, passage of, 281
Intent or intention
“crazy states,” 258
UN Charter, 60-62
wrong intent: See Right intention (jus ad bellum)
Interdisciplinary approach to contemporary problems, 241-242
International Court of Justice
See also specific matters
Pan Am Flight 103, Libyan custody of agents accused of terrorism, 285
response to low-intensity conflict, view as to, 115
Internationalist vs, isolationist debate, 253-256, 264
International law,
complementary role of just war doctrine in international law of war, 181-201, 226-233
commentary on, 205-208, 233-235,
counterterrorist attacks launched by US and Israel, 197-198, 231-232, 236
definition, 247
domestic law, contrasted, 141~141
engaging totalitarian regimes with democratic rules of law, 36-37


142 Legal & Moral Constraints on Low-intensity Conflict

law, but the laws of the United States. I couldn’t agree more with the kind of
legislative view expressed by other people on this panel today, that we have to
be concerned with developing appropriate norms, appropriate modalities for
dealing with these problems. I think that the reason we're here is because it’s
actually the case that there are, from time to time, such challenges that must be
answered. The burden, overwhelmingly, is on those who want to act, covertly
or forcefully, to deal with those threats. Therefore, I think this whole issue really
is about extremity. In other words, what do you do when the threat is so grave
that you feel that it’s justified to set aside the traditional constraints of law? My
position on this is that it’s all too easy to succumb to extreme thinking. We’ve
seen again and again that respect for the law is a virtue that helps us resist that
kind of temptation. It’s not a question of upholding international law or even
U.S. law in any simplistic way. Obviously, there are bad treaties, bad decisions.
What I’m concerned with is a general attitude toward legality and attitudes which
would help to strengthen the rule of law in the international system. Even when
dealing with real problems, which may well call for a low-intensity response, we
should not act in ways that are going to subvert rather than strengthen the rule
of law in international society, which is presumably what we're ultimately
concerned with.

PROF. REISMAN: Tom Farer.

PROF. FARER: I think it’s necessary to say that there is a very great discrep-
ancy between the view of a rather small number of international legal scholars,
most of whom are Americans, and the great majority of European and Latin
American legal scholars. Michael and I were at a conference with the cream of
the German international legal community only two weeks ago, and the
discrepancy was quite clear to them. Most international legal scholars believe
there are very significant restraints on the use of force, and that those restraints
are identifiable. Despite the unique conjuncture that every case represents, they
maintain that it is easy in most cases to identify what the appropriate behavior is
as far as law is concerned, and that frequently, the United States has acted without
reference to those restraints.

As we talk, I think we should recognize that this discrepancy exists, and I
think, often in gatherings like this, one cites one interpretation of the Charter
and another and it makes it sound as if there is a balance of views, but the
truth is there isn’t. Now, that doesn’t mean that we should necessarily comply
with the majority view. We should at least recognize that this view of the
extreme flexibility of the Charter norms, or the customary norms, is not a
widely shared view. That ties into the comments that were made about the
Nicaragua decision, and the position of the Court in expounding the law. I
won't undertake this time to defend the Nicaragua decision, but I think it’s


Reform Intervention and
Low-Intensity Conflict

Commentary on Fernando R. Teson’s
“Low Intensity Conflict and State Sovereignty:
A Philosophical Analysis”

by
Terry Nardin*

Fem Teson argues in his paper for strict moral limits on low-intensity
operations, on the grounds that it is just as important to respect human rights
in these activities as in conventional warfare. He is right to insist on such limits,
but there are problems with the way he goes about making his case.

Specifically, I want to argue that in trying to derive these limits from a
philosophical theory of legitimacy, Teson gets bogged down in academic
abstractions. A philosophical theory of legitimacy and sovereignty is one thing,
moral principles of international conduct another. Furthermore, insofar as it does
have policy implications, the legitimacy theory he offers is far too permissive.
Instead of relying on an abstract and elastic theory of legitimacy for moral
guidance, we should be paying more attention to the traditional constraints of
international law, and to making sure that these constraints are reflected in U.S.
law and military practice.

International law—not only the law of the Charter, but also customary
international law—frowns on armed intervention. Many moralists take a more
permissive view of intervention, however. Some pay no attention to inter-
national law at all, basing their judgments directly on whatever set of moral ideas
seems most compelling, from natural law and human rights to the national interest
and American values. Others claim to take international law seriously by agreeing
that the sole lawful ground for the unilateral use of armed force by a State is
self-defense, but then interpret self-defense so expansively as to effectively
undercut the legal constraints. Almost all seem willing to agree that international
law should be respected—provided nothing really important is at stake. In
Professor Teson’s version of the story, international law is morally defensible as
asystem of rules regulating the relations of legitimate States, but there is no moral
basis for paying attention to whatever protection it may offer illegitimate States.


266 Legal & Moral Constraints on Low-intensity Conflict

opinion, which tends to define the outer boundaries not only of what the
government can do but often of what it can consider or discuss, Finally, it acts
on them in a more direct and authoritative way through the U.S. Congress and
the legislative instruments at its disposal.

The extent to which American involvement in small wars has been con-
strained by public opinion and congressional fiat in the years since Vietnam.
scarcely needs to be emphasized. The antiwar movement aroused by the
American debacle in Vietnam shaped the political consciousness ofa generation
of Americans and ultimately dethroned two Presidents. Its effects are still palpable
today in our elite cultural institutions, in spite of what would seem to be a
growing acceptance in popular opinion throughout the country of the employ-
ment of American military power abroad. As for Congress, it mounted in the
aftermath of Vietnam what can only be described as a systematic assault on the
ability of the President and the national security bureaucracy to engage effectively
in low-intensity conflict. The War Powers Act, various legislative constraints on
security assistance, and congressional oversight of covert action are perhaps the
most egregious results of this effort. While the Executive branch has managed to
resist or ignore some of them, it certainly remains seriously encumbered with
such legal and quasi-legal baggage. Nor does there seem much prospect for relief,
given the continuing partisan divide between Legislative and Executive branches.

Nevertheless, it can be questioned whether these factors by themselves are as
decisive as is often assumed in limiting or crippling US Government performance
in the low-intensity arena. At least as important, it can be argued, are those
constraints imposed by the Executive branch on itself. While they are rooted in
and reflect aspects of the wider political culture, these constraints derive largely
from the nature of the national security bureaucracy and of national security
decision-making as they have evolved in the United States since World War II,

* and especially over the last three decades. Those constraints — an interrelated
nexus of attitudes, habits, traditions, and standard operating procedures — form
what can usefully be labelled “strategic culture.”

Strategic culture is the product of a number of very disparate influences.
Foremost among them may be said to be the following: the geopolitical setting
in which a nation finds itself; its international relationships; its political culture
and social structure; its military culture — military history, traditions, and
education; military and security organizations and their relationship to civilian
authority; and weapons and technology. Strategic culture expresses itself in
matters as diverse as strategic doctrine, personnel practices, command and control
arrangements, and weapons procurement. Offensive orientation, reliance on
firepower as distinct from maneuver, reliance on surprise and deception; such
characteristics of a military establishment usually reflect its key strategic-cultural
themes.


84 Legal & Moral Constraints on Low-Intensity Conflict

59. 1 PEASLEE, CONSTITUTIONS OF NATIONS 5-7 (2d ed. 1956), quoted in 1 WHITEMAN DIGEST
233,

60. 1 WHITEMAN DIGEST, at 234.

61. McColm, The Comparative Survey of Freedom: 1992, Freedom Review, Jan.-Feb. 1992, at 5.

62. Id.

63. JESSUP, A MODERN LAW OF NATIONS 159 (1952).

64, Id. at 162.

65. 5 WHITEMAN DIGEST 746-47.

66. Id. at 740.

67. The distinction between a retorsion and a reprisal is that the action taken in a retorsion would have
been lawful even in the absence of the initial wrongful act by the other state (such as denying another state
landing rights at an airport in the absence of treaty establishing such a right, or breaking diplomatic relations),
while a reprisal is lawful only because of the prior violation by the other state (such as violating the same or
parallel provision of the same treaty). Under the Charter, forceful reprisals are generally regarded as
impermissible unless justified by Article 51 of the Charter—in which case they are normally referred to as acts
of self-defense.

68. Self-help is a broader term than self-defense and incorporates the latter in addition to retorsion, reprisal
and intervention. See, eg., BRIERLY, supra n. 49, at 398, Unlike Brierly, some scholars argue that, under the
Charter, the only forcefull measures of self-help permitted are those classified as self-defense.

69. OPPENHEIM, supra n. 29, at 265.

70, U.N. CHARTER Art. 51.

71. FENWICK, supra n. 41, at 271.

72. 1928 I UNITED STATES FOREIGN RELATIONS 91; see also FENWICK, supran. 41, at278; BRIERLY,
supra n, 49, at 407.

73. JESSUP, supra n, 63, at 163,

74, [UNITED STATES FOREIGN RELATIONS 1928 at 36. This position is supported by the writings of
the late Professor Quincy Wright, a former President of the American Society of International Law, who wrote
in 1957: “[E]very international obligation not to engage in hostilities carries the qualification, by implication
if not by express statement, that it does not impair a state’s capacity to use armed force... for necessary
self-defense. or for assisting, if requested, another state in an armed action permisible to the later.”
‘Wright, Intervention, 1956, 51 Am. J. Int'l L. 257, 269 (1957).

75, BRIERLY, supra n. 49, at 409-10.

‘76, FENWICK, for example writes: “Itis clear, however, that both of the cases contemplated by the Charter
have in mind self-defense of the most restricted character, since self-defense is limited to armed attacks...”
supra n, 41, at 279. Sorensen presents two reasonable interpretations of the Charter, but sides ultimately with
the view “that the CHARTER modified the customary right of self-defense.” SORENSEN, MANUAL OF
PUBLIC INTERNATIONAL LAW 765-67 (1968).

77. LUNG-CHU CHEN, supra n, 58, at 324-26.

78. SORENSEN, supra n. 76, at 777-78.

79. HENKIN, HOW NATIONS BEHAVE 141 (2d ed. 1979).

80, However, Art. 2, para. 6 of the Charter does provide; “The Organization shall ensure that states which
are not Members of the United Nations act in accordance with these Principles so far as may be necessary for
the maintenance of international peace and security.” This might justify compelling North Korea to comply
with the Charter; but if the only aggression prohibited by the Charter is that by 2 “Member” of the organization
one might question whether North Korea had acted wrongfilly.

81. The Vienna Convention provides in Art. 31 that “A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light
ofits object and purpose.” Art. 32 allows “[rJecourse . . . to supplementary means of interpretation, including
the preparatory work of the treaty,” when the procedures set forth in Art. 31 “leaves the meaning ambiguous
or obscure” or “leads to a result which is manifestly absurd or unreasonable.”

82, BRIERLY, supra n. 49, at 417.

83, Id. 417-418.

84, See text accompanying n. 72.

85, Id. 418-419.

86. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 152 (1958).

87. 12 WHITEMAN DIGEST 62-63.

88, Id. 737-38.

89, Senator Vandenberg quoted in id. at 99.

90. 95 CONG. REC. 8892 (1949).

91, 12 WHITEMAN DIGEST 84-85.

92. 5 id, at 281.



Chapter II

Low-Intensity Conflict and
The International Legal System

by
John Norton Moore*

1, Introduction

Ox way of thinking about the legality of actions taken in response to
“low-intensity” conflict is to inquire about the limits of State sovereignty.
That is, to what extent will the limits of State sovereignty be regarded as absolute
and to what extent will they yield to pressures to respond to sustained patterns of
terrorism, democidet or massive human rights violations, or even uncon-
trolled narcotics trafficking? Since I believe that conceptual discussion
focusing on “sovereignty” is not the most useful way of clarifying the limits
of permissible State intervention and use of force under the Charter — nor,
indeed, is it even in the mainstream of the international legal approach to
these issues over the last decade — this paper does not examine the
low-intensity conflict issue in this “sovereignty” framework. The thrust of
the legal realist and postlegal realist jurisprudential movements over the last
half century has been to analyze by discrete recurring issues or classes and
not principally in terms of doctrinal conceptualization, although the latter
approach has continued to exert a pull like that of a distant body receding
in space. Moreover, for years now international law has ignored “sov-
ereignty” in imposing minimum human rights standards, and issues con-
cerning the use of force have been dealt with not under the rubric of
“sovereignty” but in terms of intervention theory, humanitarian interven-
tion, collective defense and other areas of international concern.

The range of relevant issues or claims concerning the limits of external
intervention across the borders of third States in relation to “low-intensity
conflict” seems to me primarily to relate at present to three categories, although
there are others and each of these three can, in turn, be broken down into
sub-categories. These three principal categories are:

‘tCoined by Professor Rudy Rummel of the University of Hawaii, democide refers to systematic or widespread
acts of murder for any purpose. Its meaning is broader than that specified by the U.N. definition of genocide,
from which killing for political reasons was excluded at the request of the U.S.S.R.