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The role of international law in US foreign policy decision-making intervention in Grenada & Nicaragua Jenab, Zahra 1991

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THE ROLE OF INTERNATIONAL LAW IN US FOREIGN POLICY DECISION-MAKING INTERVENTION IN GRENADA & NICARAGUA by ZAHRA JENAB .A., The University of B r i t i s h Columbia, 19£ A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES ( P o l i t i c a l Science) We accept t h i s t h e s i s as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 1991 © Zahra Jenab, 1991 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada ( DE-6 (2/88) ABSTRACT Relations among states are permeated by basic l e g a l concepts which comprise the international l e g a l system. The existence of t h i s system helps maintain some l e v e l of international order. So long as states f e e l that i t i s i n t h e i r i n t e r e s t to act according to the norms of inte r n a t i o n a l law, order i s preserved. When a state believes, however, that i t i s to i t s advantage to disrupt the order, then the international l e g a l system can do very l i t t l e to prevent that state from acting contrary to the norm and, for instance, r e s o r t i n g to the use of force to achieve i t s goal. The actions of the United States, as a major power, are very s i g n i f i c a n t i n t h i s respect since many smaller countries look at the United States as a ro l e model. Yet, i n many cases, the United States has acted i n a manner which seems to contradict the established norms of international law. To determine to what extent international law i s a factor i n US po l i c y making, i t i s best to focus on the r e l a t i o n s of the US with countries of one s p e c i f i c region in order to avoid sweeping generalizations. The r e l a t i o n s h i p of the US with Central American countries has always been a matter of controversy because the United States sees i t s e l f as the protector of these s ta tes . On numerous occasions, the US has intervened ( d i r e c t l y and i n d i r e c t l y ) i n Centra l America to secure i t s own perceived i n t e r e s t s . Two of the most recent examples of US in tervent ion occurred during the Reagan Adminis trat ion . They are: the 1983 invasion of Grenada, and intervent ion i n Nicaragua from 1981 to 1984. Af ter the dec is ions to intervene were made, United States ' o f f i c i a l s offered l e g a l j u s t i f i c a t i o n s for t h e i r ac t ions . A c lose look at these explanations, however, reveals that the Reagan Adminis trat ion was not t r u l y concerned with the norms and p r i n c i p l e s of i n t e r n a t i o n a l law. The Adminis trat ion be l ieved that i t had the m i l i t a r y and p o l i t i c a l power to circumvent into i n t e r n a t i o n a l l ega l ob l iga t ions without the fear of sanct ions . The r e a l r a t i o n a l e for the intervent ions l i e s i n the fac t that the US had the opportunity to t r y to overthrow an a d v e r s a r i a l regime which was seen as a threat to hemispheric s e c u r i t y and s o l i d a r i t y . i v T A B L E OF CONTENTS A B S T R A C T i i A C K N O W L E D G E M E N T V I . I N T R O D U C T I O N 1 I I . WHAT I S I N T E R N A T I O N A L L A W 5 I I I . T R A D I T I O N A L N O R M O F N O N - I N T E R V E N T I O N 1 1 A . I N T E R V E N T I O N U P O N I N V I T A T I O N 1 9 B . S E L F - D E F E N C E 2 1 C . H U M A N I T A R I A N I N T E R V E N T I O N 2 6 I V . P R I O R U S I N T E R V E N T I O N I N L A T I N A M E R I C A 3 1 A . T H E M O N R O E D O C T R I N E 3 2 B . G U A T E M A L A 3 5 C . C U B A 4 0 D . D O M I N I C A N R E P U B L I C 4 6 E . T H E R E A G A N A D M I N I S T R A T I O N 5 1 V . C A S E S T U D I E S 5 5 A . G R E N A D A 5 5 B . N I C A R A G U A 7 2 V I . A N A L Y S I S 9 1 A . G R E N A D A 9 4 1.Safety of US Nationals i n Grenada 94 2. Joining the OECS C o l l e c t i v e Security Forces 98 3. The I n v i t a t i o n by the Governor-General 103 B . N I C A R A G U A 1 1 0 V I I . C O N C L U S I O N 1 2 0 V I I I . W O R K S C I T E D OR R E F E R R E D T O 1 2 6 V ACKNOWLEDGEMENTS The completion of t h i s thesis would not have been possible without the input and assistance of Professors Job and Copithorne. I am honoured that they managed to f i n d time i n t h e i r busy schedules to give me the opportunity to take advantage of t h e i r invaluable knowledge and experience. My everlasting thanks are extended to my family for t h e i r neverending care and support. 1 I. INTRODUCTION The ever i n c r e a s i n g interdependence of s t a t e s , along w i t h the growing number of i n t e r a c t i o n s of people a c r o s s n a t i o n a l boundaries, has r a i s e d c o u n t l e s s concerns and q u e s t i o n s r e g a r d i n g the l e g a l i t y and l a w f u l n e s s of many a c t s and a c t i v i t i e s . R e cently, f o r example, the q u e s t i o n of l a w f u l n e s s has been r a i s e d w i t h r e s p e c t t o I r a q ' s i n v a s i o n of Kuwait. On t h a t , the world community — almost unanimously — d e c i d e d t h a t Saddam Hussein's a c t s were c o n t r a r y t o the norms of i n t e r n a t i o n a l law. But r a r e l y does a s t a t e a c t i n such b l a t a n t v i o l a t i o n of i n t e r n a t i o n a l law, and the response of other s t a t e s i s u s u a l l y not so uniform. Law and l a w f u l n e s s are extremely important i n i n t e r n a t i o n a l r e l a t i o n s because the r e l a t i o n s of one s t a t e w i t h another, as soon as they begin, are permeated by l e g a l concepts. R e c o g n i t i o n , s o v e r e i g n t y , and r e s p e c t i n g o t h e r s ' t e r r i t o r i a l i n t e g r i t y are a few examples of the b a s i c l e g a l concepts which comprise the modern s t a t e system. By s u b s c r i b i n g t o these concepts, a s t a t e g i v e s up a c e r t a i n degree of i t s autonomy and independence. In r e t u r n , i t enjoys membership i n the i n t e r n a t i o n a l s o c i e t y , and can have p e a c e f u l r e l a t i o n s w i t h 2 other states. If states always acted i n accordance with these l e g a l concepts, then Iraq's resort to force should not have come about. The primary concern of states i s almost always national i n t e r e s t . Usually, one element of national i n t e r e s t i s maintaining international order; at other times, on the other hand, i t may be i n the states' perceived i n t e r e s t to disrupt international order to achieve a higher goal. Consequently, states accept or r e j e c t law based on t h i s i n t e r e s t . One c y n i c a l view that emerges from t h i s hypothesis i s that international law i s capable of sustaining international order so long as i t i s i n the states' i n t e r e s t to maintain such order. International law sets up the rules of conduct, but i t cannot prevent states from acting contrary to the norm and committing, for instance, acts of aggression when i t i s supposedly to t h e i r advantage to do so. When a state such as Iraq acts i n contradiction to the norms of international law, then the s i t u a t i o n may be remedied more e a s i l y than when the United States or the Soviet Union does so. The Gulf War forced Iraq out of Kuwait r e l a t i v e l y quickly; but the Soviets remained i n Afghanistan for years u n t i l the culmination of a number of smaller pressures led them to the decision to leave. A powerful state's actions (such as the US') have a greater impact on international law than would a smaller state's actions. Conversely, p r e c i s e l y because of t h i s power and importance, in t e r n a t i o n a l law may have a smaller r o l e to play i n the decision of the US about what course of action i t 3 should follow. To determine whether the above hypothesis i s true or not, the following discussion i s based on the extent to which international law plays a r o l e i n American foreign p o l i c y decision-making involving the use of force. Two s p e c i f i c cases involving small Central American countries have been chosen. By doing so, conclusions can be reached regarding US r e l a t i o n s with countries of one s p e c i f i c geographic region, and the r o l e that international law plays i n those r e l a t i o n s . The cases that have been selected are the d i r e c t US m i l i t a r y invasion of Grenada i n 1983, and the intervention i n Nicaragua a f t e r the Sandinista National Liberation Front (FSLN) came into power i n 1979. The cases w i l l be looked at i n d e t a i l i n terms of the events that led to President Reagan's decision to intervene. Also, the p a r t i c u l a r s of the intervention w i l l be discussed thoroughly. The i n t e r n a l decision-making process of the United States, however, w i l l not be analyzed. After action was taken, the US government offered several j u s t i f i c a t i o n s for i t s actions. These w i l l be examined c a r e f u l l y i n order to conclude to what extent international law plays a r o l e i n the decision-making process of the United States. Before beginning the study of the cases, several preliminary issues have to be discussed. F i r s t , since the r o l e of "international law" i n US decision-making i s being analyzed, i t i s c r u c i a l to explain what t h i s term means. Second, i t i s necessary to r e a l i z e that intervention i s normally and usually 4 contrary to the norms of international law. For t h i s reason, the norm of non-intervention w i l l be looked at i n some d e t a i l . Next, a review of the long h i s t o r y of US intervention i n Latin America w i l l provide a broader framework, i n which the cases of Nicaragua and Grenada w i l l f i t i n e a s i l y . F i n a l l y , these two cases w i l l be looked at i n considerable d e t a i l ; then the l e g a l j u s t i f i c a t i o n s that were offered by the Reagan Administration regarding each intervention w i l l be discussed. In both cases, the Reagan Administration claimed that i t had acted according to the norms and p r i n c i p l e s of international law. A close look at the facts and the j u s t i f i c a t i o n s offered w i l l show the true extent to which norms of international law were a factor and concern i n US decision-making. 5 n . WHAT IS INTERNATIONAL LAW? B e f o r e d i s c u s s i n g w h a t r o l e i n t e r n a t i o n a l l a w h a s p l a y e d i n U S f o r e i g n - p o l i c y d e c i s i o n - m a k i n g i n t h e R e a g a n A d m i n i s t r a t i o n , o n e h a s t o d e f i n e w h a t i n t e r n a t i o n a l l a w i s . U n f o r t u n a t e l y , t h i s i s n o t a v e r y e a s y t a s k s i n c e a l m o s t e v e r y a u t h o r i t y a n d s c h o l a r h a s h i s o w n d e f i n i t i o n a n d d e s c r i p t i o n o f t h e t e r m . F o r e x a m p l e , i n t h e Case of the S.S. Lotus i n 1 9 2 7 , t h e P e r m a n e n t C o u r t o f I n t e r n a t i o n a l J u s t i c e e x p l a i n e d t h a t : I n t e r n a t i o n a l l a w g o v e r n s r e l a t i o n s b e t w e e n i n d e p e n d e n t S t a t e s . T h e r u l e s o f l a w b i n d i n g u p o n S t a t e s t h e r e f o r e , e m a n a t e f r o m t h e i r o w n f r e e w i l l a s e x p r e s s e d i n c o n v e n t i o n s o r b y u s a g e s g e n e r a l l y a c c e p t e d a s e x p r e s s i n g p r i n c i p l e s o f l a w a n d e s t a b l i s h e d i n o r d e r t o r e g u l a t e t h e r e l a t i o n s b e t w e e n t h e s e c o - e x i s t i n g i n d e p e n d e n t c o m m u n i t i e s o r w i t h a v i e w t o a c h i e v e m e n t o f c o m m o n a i m s 1 . A l m o s t h a l f a c e n t u r y l a t e r , H e d l e y B u l l d e f i n e d i n t e r n a t i o n a l l a w a s " a b o d y o f r u l e s w h i c h b i n d s s t a t e s a n d o t h e r a g e n t s i n w o r l d p o l i t i c s i n t h e i r r e l a t i o n s w i t h o n e a n o t h e r a n d i s c o n s i d e r e d t o h a v e t h e s t a t u s o f l a w " 2 . T h e m a i n d i f f e r e n c e s b e t w e e n t h e s e t w o d e f i n i t i o n s s h o u l d " T h e Case of the S.S. Lotus, [ 1 9 2 7 ] P . C . I . J . , s e r . A . N o . 1 0 a t 1 8 . 2 H e d l e y B u l l , The Anarchical Society: A Study of Order in World P o l i t i c s ( N . Y . : C o l u m b i a U n i v . P r e s s , 1 9 7 7 ) a t 1 2 7 . 6 be pointed out. F i r s t , the Permanent Court of International J u s t i c e did not include the r e l a t i o n s between non-state actors i n i t s d e f i n i t i o n of international law and only considered the re l a t i o n s between independent states. States can no longer be considered as the only subjects of international law. In the 19th century, indiv i d u a l s had no leg a l r i g h t s or duties i n inter n a t i o n a l law. Today, however, individuals play a r o l e i n making and modifying the law, and they have acquired some degree of i n t e r n a t i o n a l l e g a l personality 3. Furthermore, the importance of other non-state actors should not be ignored. An inter n a t i o n a l organization, for instance, can enjoy l e g a l personality under the municipal laws of i t s member states and f u l f i l other l e g a l functions. Although the powers of indi v i d u a l s and other non-state actors are s t i l l quite limited, i t i s necessary to r e a l i z e t h e i r existence. B u l l , on the other hand, f a i l e d to take into account the free w i l l and independence of states and gave "in t e r n a t i o n a l law" the "status of law". One of the basic tenets of the international system i s i t s horizontal structure of t h e o r e t i c a l authority. In such a system, states are free to pursue t h e i r national i n t e r e s t s . Governments act according to t h i s i n t e r e s t i n the sense that they w i l l not recognize any norm which w i l l 3Michael Akehurst, A Modern Introduction to International Law (London: George A l l e n & Unwin Ltd., 1987 6th ed.) at 70. 7 not further t h e i r i n t e r e s t s 4 . Most of the time, the maintenance of international order i s an element of the state's national i n t e r e s t ; only to that extent are norms of i n t e r n a t i o n a l law acknowledged and accepted. Generally, therefore, no state i s bound by any proposed norm or regulation without i t s consent, though consent once given i s binding and o r d i n a r i l y cannot be withdrawn at w i l l or a r b i t r a r i l y . This rule, embodied in the maxim of pacta sunt servanda, i s a fundamental rule of public i n t e r n a t i o n a l law. There i s one major exception to t h i s rule which should be noted. The formation of customary law does not require the expressed consent of a l l states. The practice followed by a small number of states may be s u f f i c i e n t to create a customary ru l e i f there i s no contradictory practice. States that do not wish to conform with the r u l e must consistently r e j e c t i t from the very beginning; otherwise, t h e i r silence would imply acceptance 5. A s i t u a t i o n may a r i s e when a state believes i t i s i n i t s int e r e s t to break an agreement, or to act contrary to an established norm of international law. For instance, the "There are, i n r e a l i t y , cases i n which a strong state forces a weaker state into accepting an agreement which i t would not have otherwise entered into. The general law i n t h i s area i s that agreements entered into by force or coercion are not binding on the states involved. This, however, does not account for cases i n which the weaker state does not make i t obvious that i t had been coerced, or cases in which there had been a "trade-off". I t i s beyond the scope of t h i s discussion to examine these cases; i t i s c r u c i a l , nonetheless, to be aware of t h e i r existence. See i b i d , at 134-35 for more d e t a i l . 5See i b i d , at 25-34 for a detailed discussion of customary law. 8 government of one country may choose to invade another i n order to guarantee i t s own perceived national security. The invader, however, may use l e g a l arguments and exceptions to the norm of non-intervention to j u s t i f y i t s actions, often times successfully. The international l e g a l system functions i n such a way that i t sometimes does allow states to give t h e i r own int e r p r e t a t i o n or a p p l i c a t i o n to c e r t a i n rules. Generally, the more powerful a state i s i n the international arena, the higher the chances are that i t s interpretation w i l l be accepted by others. There can be no doubt, however, that there are c e r t a i n rules and regulations which states and other agents i n the international arena regard as binding on one another. I t i s the existence of these rules and regulations that maintains some l e v e l of order i n society. Whether or not these rules have the status of law, on the other hand, i s a matter of controversy. Some le g a l scholars have argued that international law i s not "law" because "law" i s properly so c a l l e d on the grounds that one of i t s e s s e n t i a l features i s that i t i s the product of sanctions, force, or coercion 6. The difference between municipal law and i n t e r n a t i o n a l law i s that law within the modern state i s backed up by the authority of a government, including i t s power to use or threaten to use force; international law, on the other hand, lacks t h i s property. 6S. A. Williams and A. L. C. de Mestral, An Introduction to International Law: Chiefly as Interpreted and Applied in Canada (Canada: Butterworths, 1987) at 6-7. 9 The argument that international law i s , i n fact, "law" branches out i n two d i f f e r e n t d i r e c t i o n s . F i r s t , scholars such as Kelsen have argued that international law, even though i t operates i n the absence of a world government, does r e s t on sanctions, force and coercion 7. In the international society, sanctions are applied by ind i v i d u a l members of the society according to "the p r i n c i p l e of se l f - h e l p " . The second branch of t h i s argument asserts that law does not necessarily involve sanctions, force or coercion. Hart, for example, argues that the concept of law as "orders backed by threats" i s inapplicable even to domestic law i n a number of ways8. He explains that there are v a r i e t i e s of municipal law which confer l e g a l powers to adjudicate or l e g i s l a t e . These cannot properly be categorized as law backed by threats. The controversy on the status of international law has led to an ongoing academic debate which i s very d i f f i c u l t to resolve. This debate i s s i g n i f i c a n t to the present discussion i n so far as i t helps to esta b l i s h the status of int e r n a t i o n a l law i n states' decision-making processes. If international law i s t r u l y "law", then the United States, for example, should always abide by the rules. Acting contrary to the norms should be heavily sanctioned. I f , on the other hand, international law i s anything less than "law" (such as a code of morals or 7Hans Kelsen, The General Theory of the Law and State (U.S.A.: Harvard Univ. Press, 1946). 8H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). 10 e t h i c s ) , t h e n e v e r y t i m e t h a t t h e US a c t s a c c o r d i n g t o t h i s code, i t s h o u l d be commended. I t i s e x p e c t e d t h a t s t a t e s w i l l a c t i n agreement w i t h t h e law; a code o f m o r a l s o r e t h i c s , on t h e o t h e r hand, i s something t h a t t h e y s u b s c r i b e t o v o l u n t a r i l y . The f o l l o w i n g i s a s t u d y o f t h e r o l e o f law i n i n t e r n a t i o n a l r e l a t i o n s . More s p e c i f i c a l l y , t h e r o l e o f i n t e r n a t i o n a l law i n t h e r e l a t i o n s o f t h e Reagan A d m i n i s t r a t i o n w i t h N i c a r a g u a and Grenada w i l l be examined. I f , i n making t h e d e c i s i o n s t o i n t e r v e n e i n N i c a r a g u a and Grenada, t h e Reagan A d m i n i s t r a t i o n c o n c e r n e d i t s e l f w i t h norms and r e g u l a t i o n s , t h e n i n t e r n a t i o n a l law was a p a r t o f US d e c i s i o n - m a k i n g , a t l e a s t i n t h e s e two s i t u a t i o n s . B e f o r e b e g i n n i n g t h i s d i s c u s s i o n , however, " i n t e r v e n t i o n " has t o be d e f i n e d i n more p r e c i s e t e rms. F u r t h e r m o r e , t h e norm of n o n - i n t e r v e n t i o n and i t s e x c e p t i o n s have t o be l o o k e d a t i n some d e t a i l . 11 III. TRADITIONAL NORM OF NON-INTERVENTION Today , t h e e x i s t e n c e o f t h e norm o f n o n - i n t e r v e n t i o n c a n n o t be d i s p u t e d , even t hough t h e o c c a s i o n a l p r a c t i c e o f s t a t e s may s u g g e s t o t h e r w i s e . The norm o f n o n - i n t e r v e n t i o n a r o s e f rom t h e c o n c e p t i o n o f an i n t e r n a t i o n a l sys t em c o m p r i s e d o f e q u a l and s o v e r e i g n s t a t e s . Each s t a t e ' s powers were d e f i n e d t e r r i t o r i a l l y , and e x t e r n a l i n t e r f e r e n c e was seen as an encroachment upon t h e s e p o w e r s . I n t h i s s e c t i o n , a b r i e f r e v i e w o f t h e deve lopmen t o f t h e norm o f n o n - i n t e r v e n t i o n , a l o n g w i t h some e x c e p t i o n s and l i m i t a t i o n s t o t h i s norm, w i l l be p r e s e n t e d . I t s h o u l d f i r s t be m e n t i o n e d t h a t t h e r e i s a l a c k o f consensus on t h e d e f i n i t i o n o f i n t e r v e n t i o n . F o r i n s t a n c e , many e x t e r n a l p o l i c i e s o f one s t a t e a r e d i r e c t e d a t b l o c k i n g t h e s u c c e s s o f t h e e x t e r n a l p o l i c i e s o f a n o t h e r s t a t e . E v e r y t i m e a s t a t e engages i n t h i s t y p e o f c o n d u c t , however , i t c a n n o t be s a i d t h a t i t i s t r u l y " i n t e r v e n i n g " i n a n o t h e r ' s a f f a i r s . Meyer has p r o d u c e d a d e f i n i t i o n o f i n t e r v e n t i o n i n t h e p o l i t i c a l p r o c e s s w h i c h p r o v i d e s a r e a s o n a b l y c l e a r i n t e r p r e t a t i o n o f t h e t e r m : I n t e r v e n t i o n i s t h e " m a n i p u l a t i o n o f a s t a t e ' s power p r o c e s s e s t o a c h i e v e p o l i t i c a l ends i n t h a t s t a t e ' s a u t h o r i t y 12 structure" 9. According to von Glahn, intervention means "dictatorial interference by one state i n the a f f a i r s of another state for the purposes of either maintaining or changing the e x i s t i n g order of things", rather than mere interference per se 1 0. The main point that can be i n f e r r e d from these d e f i n i t i o n s i s that intervention i s i n opposition to the w i l l of the state that i s the object of such action and i s directed at the i n t e r n a l nature or character of that state. There are many forms which intervention can take including, but not l i m i t e d to, coercion, m i l i t a r y action, and economic subversion. Before the United Nations Charter came into e f f e c t , the two main instruments which li m i t e d the use of force by states were the Covenant of the League of Nations and the Kellogg-Briand Pact. The Covenant, drafted i n February 1919 by the Commission of the League of Nations of the Peace Conference, considerably limited the large amount of freedom that states had had i n resorting to force. There were, nevertheless, s t i l l many circumstances i n which force could be used. For instance, war was recognized as a means of s e t t l i n g disputes. States simply undertook cert a i n obligations not to resort to war11. 9Ray Meyer, "The Limits of International Law i n the P o l i t i c a l Process: The Role of the United States i n E l Salvador" (Winter 1983) 7 ASILS I n t ' l L. J. 89 at 90. 1 0Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law (N.Y.: Macmillan Publishing Co., 1981) at 160. Emphasis included. "Covenant of the League of Nations, Preamble (Part I of the Treaty of Peace Between the A l l i e d and Associated Powers and Germany); Martens, 9 N.R.G., 3rd ser., at 323 [hereinafter The K e l l o g g - B r i a n d P a c t o f 1928 was an a t t e m p t t o na r row t h e s cope o f a c c e p t a b l e use o f f o r c e under t h e C o v e n a n t 1 2 . I n A r t i c l e I I o f t h e P a c t , p a r t i e s a g r e e d t h a t t h e s e t t l e m e n t o r s o l u t i o n o f a l l d i s p u t e s o r c o n f l i c t s o f w h a t e v e r n a t u r e o r o f w h a t e v e r o r i g i n t h e y may be , w h i c h may a r i s e among them, s h a l l n e v e r be s o u g h t e x c e p t by p a c i f i c means" . A l t h o u g h war was g e n e r a l l y p r o h i b i t e d , i t r e m a i n e d l a w f u l i n c e r t a i n c i r c u m s t a n c e s 1 4 . F i r s t , war o u t s i d e t h e span o f t h e r e c i p r o c a l r e l a t i o n s o f t h e c o n t r a c t i n g p a r t i e s r e m a i n e d l a w f u l . Freedom o f war was p r e s e r v e d among c o n t r a c t i n g and n o n -c o n t r a c t i n g p a r t i e s . T h i s , n o n e t h e l e s s , was n o t t h a t s i g n i f i c a n t b e c a u s e , b e f o r e W o r l d War I I , t h e r e were o n l y f o u r s t a t e s w h i c h were n o t bound by t h e p r o v i s i o n s o f t h e T r e a t y 1 5 . S e c o n d , war r e m a i n e d l a w f u l as an i n s t r u m e n t o f " i n t e r n a t i o n a l p o l i c y " . War waged as a r e a c t i o n a g a i n s t a v i o l a t i o n o f i n t e r n a t i o n a l law was n o t war as an i n s t r u m e n t o f n a t i o n a l p o l i c y and was j u s t i f i a b l e 1 6 . T h i r d , t h e P a c t d i d n o t i n c o r p o r a t e a p r o v i s i o n s p e c i f i c a l l y a d d r e s s i n g s e l f - d e f e n c e . C o v e n a n t ] . 1 2 The G e n e r a l T r e a t y f o r t h e R e n u n c i a t i o n o f War as an I n s t r u m e n t o f N a t i o n a l P o l i c y ( the K e l l o g g - B r i a n d p a c t o f P a r i s ) , 1929 Treaty Series, n o . 2 9 . S i g n e d on A u g u s t 27 , 1928 . 1 3 I a n B r o w n l i e , International Law and the Use of Force by States ( U . S . A . : C l a r e n d o n P r e s s , 1963) a t 7 5 . 1 4 Yoram D i n s t e i n , IVar, Aggression and Self-Defense (Cambr idge : G r o t i u s P u b l i c a t i o n s , L t d . , 1988) a t 8 1 - 8 3 . 1 5 B r o w n l i e ( 1 9 6 3 ) , s u p r a n o t e 13 , a t 7 5 . 1 6 I b i d , a t 8 9 . 14 The parameters of self-defence were not set out, and no competent body was established to determine whether a state had, i n fact, acted i n self-defence. In short, many avenues were open for a state to intervene i n the a f f a i r s of another. The Covenant of the League of Nations and the Kellogg-Briand Pact were successful only as long as the major powers remained strong enough to deter smaller states from u n i l a t e r a l treaty denunciation and resort to armed force. The outbreak of World War II completely destroyed the old system. I t was clear by that time that a new regime of c o l l e c t i v e peace enforcements had to be i n s t i t u t e d . The e f f o r t s of the Western A l l i e d states were then concentrated i n the dra f t i n g of the Charter of the United Nations, and the creation of the United Nations (UN) i t s e l f as a forum for the peaceful resolution of c o n f l i c t s . The prime object of the United Nations was to prevent the occurrence of another war as devastating as the one that had jus t ended. To t h i s aim, the UN had to redress the short-comings of the previous arrangements. Peace was no longer an exclusively p o l i t i c a l or m i l i t a r y concern; s o c i a l , economic, and humanitarian issues a l l had an important r o l e to play i n the UN Charter. The "Purposes and P r i n c i p l e s " of the UN included the following: 1. To maintain international peace and security 2. To develop f r i e n d l y r e l a t i o n s among nations based on respect for the p r i n c i p l e of equal r i g h t s and s e l f -determination of peoples ...; 3. To achieve international co-operation i n solving international problems of economic, s o c i a l , c u l t u r a l , 15 o r h u m a n i t a r i a n c h a r a c t e r , and i n p r o m o t i n g and e n c o u r a g i n g r e s p e c t f o r human r i g h t s and f o r fundamental freedoms f o r a l l w i t h o u t d i s t i n c t i o n as t o r a c e , sex , language , o r r e l i g i o n and 4. To be a c e n t r e f o r h a r m o n i z i n g the a c t i o n s o f n a t i o n s i n the a t t a i n m e n t o f these common e n d s . 1 7 The U n i t e d N a t i o n s was d e s i g n e d to s e r v e as a forum where these purposes c o u l d be c o - o r d i n a t e d and a c c o m p l i s h e d ; a l s o , the s t r u c t u r e o f the Permanent I n t e r n a t i o n a l C o u r t o f J u s t i c e was updated so t h a t s t a t e s c o u l d have an improved means o f r e s o l v i n g d i s p u t e s p e a c e f u l l y . The I n t e r n a t i o n a l C o u r t o f J u s t i c e (ICJ) was e s t a b l i s h e d i n 1945 as an i n t e g r a l p a r t o f the U n i t e d N a t i o n s O r g a n i z a t i o n . The C o u r t was meant t o s e r v e as the " p r i n c i p a l j u d i c i a l organ" o f t h e U N 1 8 . The S t a t u t e o f the C o u r t , however, c o n t a i n e d the s o - c a l l e d " o p t i o n a l c l a u s e " which has been the main s o u r c e o f the weakness o f the C o u r t . A r t i c l e 3 6 o f the S t a t u t e s t a t e s t h a t the C o u r t e x e r c i s e s j u r i s d i c t i o n i n cases over s t a t e s on a p u r e l y c o n s e n s u a l b a s i s 1 9 . S i n c e s t a t e s are r e l u c t a n t t o u n c o n d i t i o n a l l y a c c e p t the C o u r t ' s j u r i s d i c t i o n , the I C J has p l a y e d a r e l a t i v e l y minor r o l e i n r e s o l v i n g i n t e r n a t i o n a l d i s p u t e s . The C h a r t e r o f the U n i t e d N a t i o n s a l s o c o n t a i n e d a g e n e r a l s tatement a g a i n s t the use o f f o r c e . A r t i c l e 2(4) s t a t e s , i n f u l l : " c h a r t e r o f the U n i t e d N a t i o n s , A r t i c l e 1 [ h e r e i n a f t e r C h a r t e r ] . 1 8 I b i d , A r t i c l e 92. 1 9 S t a t u t e o f the I n t e r n a t i o n a l C o u r t o f J u s t i c e , A r t i c l e 36. 16 A l l Members s h a l l r e f r a i n i n t h e i r i n t e r n a t i o n a l r e l a t i o n s from the threat or use of force against the t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l independence of any state, or i n any other manner inconsistent with the Purposes of the United Nations 2 0. The term "force", as used i n A r t i c l e 2(4), covers and transcends the term "war"; thus, measures short of war are also prohibited. This, along with the inclu s i o n of "threats" to use force, was a major step forward. At f i r s t glance, i t seems as though A r t i c l e 2(4) was the id e a l rule against the use of force. But, there were a number of factors which undermine the effectiveness of t h i s a r t i c l e . F i r s t , Chapter VII of the Charter makes provision for c o l l e c t i v e action by the Security Council "to maintain or restore international peace and security" when a threat to the peace or an act of aggression occurs 2 1. This was a very ambitious task for the Security Council to achieve since, from the outset, i t was obvious that very r a r e l y would the permanent members of the Council vote unanimously on a resolution. The Security Council, therefore, could not act e f f e c t i v e l y as the p r i n c i p a l peacekeeping organ of the world. A r t i c l e 2(4), furthermore, f a i l e d to take into account the r e a l i t i e s of modern warfare 2 2. For instance, encouraging g u e r r i l l a movements within another state does not f i t into the 2 0Charter, A r t i c l e 2(4). 2 1Charter, A r t i c l e 39. 22Thomas M. Franck, "Who K i l l e d A r t i c l e 2(4)? Or: Changing Norms Governing the Use of Force by States" (1970) Am. J . I n t ' l L. 809 at 812-22. 17 conventional category of "armed attack". Yet, t h i s type of use of force i s more common today than i s "war" i n the t r a d i t i o n a l sense. The l a s t phrase i n A r t i c l e 2(4) (namely, "or i n any other manner inconsistent with the Purposes of the United Nations") has to be read i n the context of the entire document. The f i r s t and foremost purpose of the UN as set out i n A r t i c l e 1 (1) i s to maintain international peace and security 2 3. The Preamble, moreover, enunciates the determination of the UN "to save succeeding generations from the scourge of war"24. The obvious inte r p r e t a t i o n of the Charter seems to be that any threat or use of force by states against each other i s prohibited. There are, however, several exceptions to the norm of non-intervention. The f i r s t exception i s set out i n Chapter VII of the Charter and i t gives the Security Council of the UN the authority to take or to authorize enforcement action. A r t i c l e 39 of Chapter VII provides the Security Council with the power to define what a threat to peace i s , and to decide what measures s h a l l be taken i n response. I t may seem peculiar at f i r s t that the Security Council can define the term "threat to peace". This, however, i s the only r e a l i s t i c approach that could have been taken; otherwise, each state would have i t s own d e f i n i t i o n and a consensus would never be reached. I t should be mentioned that aside from the authority given to i t i n Chapter VII, the UN 2 3Charter, A r t i c l e 1(1). 2 4Charter, the Preamble. 18 i s prohibited under A r t i c l e 2(7) from intervening i n the domestic a f f a i r s of member states 2 5. Some scholars have also argued that when a state commits a gross breach of international law, then others have the r i g h t to intervene i n order to maintain a minimum inte r n a t i o n a l order 2 6. In other words, members of the international community may int e r f e r e with the in t e r n a l a f f a i r s of a state which threatens the international order. Williams and de Mestral suggest that i n some cases t h i s argument can be extended to cover si t u a t i o n s of humanitarian intervention. When a state subjects i t s own people to substandard treatment and denies them t h e i r fundamental r i g h t s , then other members of the community can, i n d i v i d u a l l y or c o l l e c t i v e l y , intervene to remedy the si t u a t i o n 2 7 . There are three other general exceptions to the r u l e of non-intervention. These need to be covered i n more d e t a i l because they play a major r o l e in the case studies which follow. ^ I t was just mentioned that these powers are not used very often or very e f f e c t i v e l y by the Security Council. 2 6Williams and de Mestral, supra note 6, at 50; von Glahn, supra note 10, at 162; J. H. Leurdijk, Intervention in International Politics (Netherlands: Eisma B. V., Publishers, 1986) at 60. 2 7Williams and de Mestral, supra note 6, at 50. Humanitarian intervention w i l l be discussed i n d e t a i l l a t e r . 19 A. INTERVENTION UPON INVITATION; The f i r s t case i s when the lawful government of a state has formally i n v i t e d the intervenor. If there i s no i n t e r n a l r e v o l t with the aim of replacing the government, then i t i s j u s t i f i a b l e to o f f e r assistance to that state. In t h i s case, the term "intervention" loses part of i t s meaning since i t i s j u s t i f i e d by the consent of the state aided. The main requirement f o r the i n v i t a t i o n to be v a l i d i n t h i s case i s that i t must be extended by the l e g a l representative of the state. The l e g a l representative can e a s i l y be i d e n t i f i e d i f the state i s not suff e r i n g from c i v i l c o n f l i c t . On the other hand, i f there i s a r e b e l l i o n or a domestic war, i t i s usually d i f f i c u l t to i d e n t i f y the l e g a l representative of the state. In cases of massive upris i n g or revolt, the government can no longer hold i t s e l f out to speak for the people. In t h i s type of s i t u a t i o n , the general p r i n c i p l e that should be adopted i s that neither the government nor the insurgents receive foreign aid 2 8. A r i g i d p o l i c y of non-intervention should be adopted by other countries since interference i n the i n t e r n a l a f f a i r s of a state w i l l deny i t s sovereignty and independent existence. A state which accepts aid from countries under the'se circumstances becomes dependent on that aid for i t s security and ceases to be a free and 2 80scar Schachter, "The Right of States to Use Armed Force" ( A p r i l . May 1984) 82 Mich. L. Rev. 1620 at 1642. 20 sovereign e n t i t y 2 9 . In addition, to give outside support to either side would be contrary to the r i g h t of the people to f r e e l y choose whatever form of government they l i k e . In r e a l i t y , however, intervention i n the i n t e r n a l a f f a i r s of other countries i s not infrequent i n international r e l a t i o n s . In a large number of circumstances, states give aid to e i t h e r the government or the i n s u r r e c t i o n i s t s . This intervention serves as a pretext for the other side to request foreign assistance. For example, one state may o f f e r equipment and t r a i n i n g to the rebels of another state i n t h e i r attempt to overthrow the r u l i n g e l i t e . In t h i s case, the government of the l a t t e r state i s being subjected to a form of intervention. Outside states, consequently, are permitted to give m i l i t a r y aid to t h i s government. Such counter-intervention may be j u s t i f i e d by the f a c t that the state was subjected to an armed attack. Furthermore, i f the insurgents need outside assistance to overthrow the government, then i t may be that they do not have popular support, since i n most cases a massive uprisi n g i s s u f f i c i e n t to topple the government. In short, i t i s advisable that states do not intervene on either side i n a c i v i l war; otherwise, help given by a state to one side may provoke another state to support the opposition. The r e s u l t may be more chaos and a larger c o n f l i c t than was o r i g i n a l l y intended. Brownlie (1963), supra note 13, at 323. 21 B. S E L F - D E F E N C E : Self-defense i s another exception to the norm of non-intervention. The leg a l basis for such a r i g h t can be found i n A r t i c l e 51 of the United Nations Charter which provides: Nothing i n the present Charter s h a l l impair the inherent r i g h t of i n d i v i d u a l or c o l l e c t i v e s e l f -defence i f an armed attack occurs against a Member of the United Nations, u n t i l the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members i n the exercise of t h i s r i g h t of self-defence s h a l l be immediately reported to the Security Council and s h a l l not i n any way a f f e c t the authority and r e s p o n s i b i l i t y of the Security Council under the present Charter to take at any time such action as i t deems necessary i n order to maintain or restore international peace and security 3 0. The meaning of t h i s a r t i c l e can best be understood when i t i s read i n conjunction with A r t i c l e 2(4) of the Charter. There are several necessary conditions which have to be met before a state can invoke the r i g h t of self-defence. These conditions were best formulated by Daniel Webster i n the Caroline case. Webster confined self-defence to cases i n which "the necessity of that self-defence i s instant, overwhelming, and leaving no choice of means, and no moment for del i b e r a t i o n " 3 1 . Webster's formulation was quoted i n the Security Council i n 1981 as authoritative customary law. After bombing a nuclear reactor i n Iraq i n 1981, Is r a e l claimed that 'Charter, A r t i c l e 51. 3 1(1837), 11 Moore 409. Quoted i n Schachter (April/May 1984), supra note 28, at 1635. i t had acted i n self-defence because the reactor was intended for a nuclear s t r i k e against I s r a e l . In the Security Council, members stated that the r i g h t to use force i n self-defence i s v a l i d only when there i s "no moment for d e l i b e r a t i o n " 3 2 . Another l i m i t a t i o n on the r i g h t of self-defence i s that the force used by a state to defend i t s e l f must be reasonably "proportionate" to the danger that i s to be averted 3 3. The main problem with t h i s requirement i s that there i s no e f f e c t i v e mechanism i n place for deciding whether or not the state's response was i n fact proportional to the threat. Even i f independent outside judges, such as an international court or tri b u n a l , were to make such a finding, i n view of the time element, any such determination would assume an ex post facto character. In short, there i s very l i t t l e incentive for a state to react proportionally to the o r i g i n a l threat. There may be more to gain from acting d e c i s i v e l y and stopping the aggressor before the c o n f l i c t gets completely out of hand. The next point which needs to be noted i s that the attack which gives r i s e to the r i g h t of self-defence need not necessarily be against a state's t e r r i t o r y . A r t i c l e 2(4) of the Charter uses the phrase "against the t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l independence of any state". Clearly, t h i s i s a wider term than the "physical" t e r r i t o r y of a state. Furthermore, i n the Corfu Channel case, the ICJ held that B r i t i s h warships, 3236 UN SCOR (2285-88th mtg.), UN Docs. S/PV 2285-88 (1981). 3 3Schachter (April/May 1984), supra note 28, at 1637-38. attacked while exercising t h e i r r i g h t of innocent passage, were e n t i t l e d to return f i r e i n self-defence 3 4. According to Brownlie, A r t i c l e 51 refers only to "armed attack" because i t was inserted for the purpose of c l a r i f y i n g the p o s i t i o n of c o l l e c t i v e defence t r e a t i e s which are only concerned with external attack. Being s p e c i f i c , i n t h i s sense, A r t i c l e 51 does not preclude the broader r i g h t as set out i n A r t i c l e 2(4) 3 5. In fact, the opening phrase of A r t i c l e 51 mentions the "inherent" r i g h t of self-defence. Such a word shows that the ri g h t of self-defence i s not based on the Charter, but that i t i s a normal r i g h t of states under international law which pre-dates the Charter and goes at least as fa r back as the Caroline. Many writers believe that states have a r i g h t to use force i n self-defence u n t i l the Security Council has acted 3 6. If t h i s view i s adopted, then A r t i c l e 51, i n e f f e c t , i s a l i m i t on the inherent r i g h t of self-defence. Next, the concept of c o l l e c t i v e self-defence requires some explanation. Bowett has argued that a r i g h t of c o l l e c t i v e s e l f -defence " i s merely a combination of in d i v i d u a l r i g h t s of s e l f -defence; states may exercise c o l l e c t i v e l y a r i g h t which any of ^Corfii Channel Case (Merits) [1949] I.C.J. Reports, p. 4 at 30-1. 3 5Brownlie (1963), supra note 13, at 269. 3 6von Glahn, supra note 10, at 132. them might have exercised individually*' 3 7. In other words, no state can defend another state unless the former could have f i r s t exercised a r i g h t of in d i v i d u a l self-defence. Professor von Glahn, on the other hand, defines the term " c o l l e c t i v e s e l f -defence" as "defence, by one state or a group of states, of another against attack" 3 8. In t h i s sense, c o l l e c t i v e s e l f -defence ref e r s to any independent use of armed force by states on behalf of another state. The f i n a l point which should be discussed i s that the phrase " i f an armed attack occurs" may suggest to some that the ri g h t of self-defence may be invoked only a f t e r the attack has occurred. I t i s a fact, however, that customary law permitted anticipatory action i n face of imminent danger 3 9. I t i s a very demanding c r i t e r i o n to expect a state which i s the object of an attack to wait u n t i l i t has act u a l l y occurred. By that time, the state may not have the c a p a b i l i t y to defend i t s e l f . I t should be mentioned, nevertheless, that the r i g h t of anticipatory self-defence i s open to many objections. F i r s t , the state has to es t a b l i s h the certainty of the attack. This involves a determination of another state's objectives. Needless to say, t h i s i s a very d i f f i c u l t — i f not impossible -37D. W. Bowett, Self-Defence in International Law (N.Y.: Manchester University Press, 19 58) ch. 10. Also, see Akehurst, supra note 3, at 224. 3 8von Glahn, supra note 10, at 133. 3 9Brownlie (1963), supra note 13, at 257. Webster recognized t h i s r i g h t i n the Caroline i f the necessity of s e l f -defence was "instant" and overwhelming". See supra note 31. - task. Even when one state can firmly e s t a b l i s h another state's intention to attack, the l a t t e r has the chance to change i t s mind u n t i l the moment that the attack a c t u a l l y takes place. Furthermore, a state which wants to defend i t s e l f has open to i t many options short of commencing an attack. For example, not only are the organs of the UN competent at dealing with these situations, but they were created with exactly t h i s idea i n mind. F i n a l l y , although the requirement of pro p o r t i o n a l i t y i n the use of force i s relevant to the r i g h t of anticipatory s e l f -defence, the two are not e n t i r e l y compatible. The force used, i n t h i s case, w i l l not be proportional to the threat since the o r i g i n a l threat did not actually involve force. The UN Charter, and these objections, have influenced states to assert the r i g h t of anticipatory self-defence less and l e s s 4 0 . S t r i k i n g the f i r s t blow may be j u s t i f i e d only a f t e r appeals to the UN have proved f u t i l e , and the threat, i f i t were allowed to be ca r r i e d out, would have completely destroyed the state rather than merely damaged i t . The onus of proof under these circumstances i s , of course, on the state taking pre-emptive action 4 1. 4 0Brownlie (1963), supra note 13, at 260. 4 1Williams and de Mestral, supra note 6, at 49-50. 26 C. HUMANITARIAN INTERVENTION; There i s considerable support for the view that when intervention i s for humanitarian purposes, then i t may be j u s t i f i a b l e . There are two categories which f i t into t h i s c l a s s i f i c a t i o n . The f i r s t i s when a state complains that the c i t i z e n s of another state are being grossly mistreated i n t h e i r own country and that t h e i r fundamental rig h t s are being denied. To impose l i a b i l i t y i n such a case, the complainant has to show that the matter i s not e n t i r e l y within the sphere of d i s c r e t i o n which international law regards as sovereignty and that i t does not f a l l exclusively within the domain of domestic j u r i s d i c t i o n 4 2 . The Preamble of the Charter expresses the determination of the peoples of the world "to reaffirm [their] f a i t h i n fundamental human r i g h t s " and " i n the dignity and worth of the human person". There i s also a commitment "to ensure ... that armed force s h a l l not be used, save i n the common int e r e s t ...". These statements strongly suggest that the use of force for humanitarian purposes i s s t i l l lawful. The repeated i n t e r e s t of the drafters of the Charter i n human right s indicates that the use of force for the urgent protection of such rig h t s i s also authorized. The lawfulness of the intervention w i l l depend on the 4 2Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1990 4th ed.) at 552. urgency of the case, the absence of feasi b l e a l t e r n a t i v e s for helping the victims, the proportionality of the coercion used, and the damage caused to the state which was the object of the operation 4 3. The operation of t h i s doctrine has almost always been subject to abuse. F i r s t , only powerful states can undertake p o l i c e measures necessary to carry out such an operation. Second, the intervention must be for the li m i t e d purpose of saving people. F i n a l l y , the intervening state must have no s e l f i s h motives. Whether the r i g h t to intervene for humanitarian purposes exists today i s open to debate 4 4. Schachter has stated that governments are reluctant "to legitimize foreign invasion i n the inte r e s t of humanitarianism" 4 5. The main reason f o r t h i s i s that i f A r t i c l e 2(4) i s opened to such a broad exception, instances of abuse by powerful states may increase. A d i f f e r e n t position, however, has been taken when a state has acted to protect i t s own nationals who were i n imminent danger i n another state. There are various l i n e s of reasoning which attempt to j u s t i f y such an intervention. F i r s t , i t has been held that nationals are an extension of the state. Any attack on them, therefore, equates an attack on the state i t s e l f . If t h i s view i s adopted, then intervention to save 43Myres S. McDougal and W. Michael Reisman, International Law in Contemporary Perspective: The Public Order of the World Community (N.Y.: The Foundation Press Inc., 1981) at 874. ^Brownlie (1963), supra note 13, at 34. 4 5Schachter (April/May 1984), supra note 28, at 1629. 28 nationals abroad may simply be seen as a derivative of the r i g h t of self-defence, which i s legitimized by A r t i c l e 51 of the Charter. The I s r a e l i rescue e f f o r t s i n Entebbe are the c l e a r e s t example of a state acting to protect i t s nationals. The capture of the I s r a e l i s was a d i r e c t attack on the state of I s r a e l . Furthermore, there i s no doubt that the I s r a e l i captives were i n imminent danger. The rescue was designed for the l i m i t e d purpose of saving the I s r a e l i s , and there was no p o l i t i c a l interference i n Uganda. Even though the rescue mission temporarily v i o l a t e d the t e r r i t o r i a l i n t e g r i t y of Uganda, the I s r a e l i action met with the t a c i t approval of most states. For t h i s reason, i t may be implied that, i n limited s i t u a t i o n s , states do recognize the existence of the r i g h t to intervene to save one's own nationals. The issue now becomes whether A r t i c l e 51 and the theory of self-defence can be used i n support of humanitarian intervention. If one adopts a r e s t r i c t i v e view of A r t i c l e 51 then t h i s question has to be answered negatively. Many of the writers who believe i n a narrow interpretation of A r t i c l e 51 believe that i t i s unlawful to use force to protect nationals abroad. According to them, force can only be used to protect a state's nationals against t h e i r own government46. The main lo g i c behind t h i s reasoning i s that A r t i c l e 51 i s an exception 4 6Michael Akehurst, "Humanitarian Intervention" i n Hedley B u l l , ed. , Intervention in World Politics (Oxford: Clarendon Press, 1984) 95 at 107 [hereinafter Akehurst i n B u l l ] . to the general r u l e set out i n A r t i c l e 2(4). Exceptions to rules have to be treated narrowly i n order not to undermine the general r u l e . A second l i n e of reasoning may be presented by arguing that there i s a state of emergency and necessity such that immediate action i s required 4 7. Although Chapter VII of the UN Charter authorizes the Security Council to act under such circumstances, when l i v e s of i t s people are i n danger, a state should not be expected to wait f o r the UN to take appropriate measures. By then, l i v e s may be l o s t . F i n a l l y , A r t i c l e 2(4) i s used to support the r i g h t of intervention to save nationals from danger. If A r t i c l e 2(4) i s interpreted narrowly, then i t may argued that the use of force for c e r t a i n purposes does not infringe upon the " t e r r i t o r i a l i n t e g r i t y or p o l i t i c a l independence" of other states, and i s not inconsistent with the purposes of the UN. If the use of force for the protection of nationals does not involve the separation of part of the state which i s the object of the intervention, and i f the intervening state's forces remain there for only a limited time, then intervention may be j u s t i f i a b l e . The use of force, i n such a case, i s contrary to the i n v i o l a b i l i t y of the state which i s the object of the intervention. The Charter, however, does not set out to protect i n v i o l a b i l i t y , but only the 4 7Natalino R o n z i t t i , Rescuing Nationals Abroad Through M i l i t a r y Coercion and Intervention on Grounds of Humanity (Netherlands: Martinus Nijhoff, Publishers, 1985) at 4. 30 t e r r i t o r i a l i n t e g r i t y and p o l i t i c a l independence of the state 4 8. Such arguments are not f u l l y convincing because any humanitarian intervention, however limited i n scope and duration, constitutes a temporary v i o l a t i o n of the target's p o l i t i c a l independence. The measures taken w i l l be against the target state's wishes, and for a s p e c i f i c period of time, that state's t e r r i t o r y i s occupied by the intervener's forces. Admittedly, more than the state's t e r r i t o r i a l i n v i o l a b i l i t y i s damaged i n such a case. Clearly, non-intervention i s a well-established l e g a l norm. The United Nations Charter, and A r t i c l e 2(4) i n p a r t i c u l a r , was drafted for the s p e c i f i c reason of maintaining peace among states. There are, however, exceptions to the norm of non-intervention. As was seen, the most s i g n i f i c a n t of these are the r i g h t to take action i n self-defence, the r i g h t to intervene upon i n v i t a t i o n by the government of another state, and humanitarian intervention. The next chapter i s a h i s t o r i c a l survey of American in t e r v e n t i o n i s t p o l i c i e s i n Central America. The purpose of the following section i s to e s t a b l i s h a long and consistent h i s t o r y of US intervention i n that region. By doing so, i t w i l l be seen that Grenada and Nicaragua were chosen from a long l i s t of s i m i l a r cases; they are not anomalies. Ibid, at 1. 31 IV: PRIOR US INTERVENTION IN LATIN AMERICA During the past century, the rel a t i o n s h i p that has evolved between the US and Latin America has been a matter of controversy. The US sees i t s e l f as the protector of a c o l l e c t i o n of neighbouring states whose security i s v i t a l to i t s in t e r e s t s . Many Latin American countries, on the other hand, see the United States as a domineering country that i s always eager to become involved i n other states' i n t e r n a l a f f a i r s . Perhaps i t i s because of t h i s disagreement on the r o l e of the US i n L a t i n America that, on numerous occasions, t h e i r r e l a t i o n s h i p has been put to a t e s t by US invasion and intervention. In f a c t , US intervention i n Latin America i s not a new p o l i c y . The US has been tr y i n g , for a very long time, to ensure the security of the region in order to protect i t s own perceived v i t a l i n t e r e s t s . As early as 1845, for example, James K. Polk was engaged i n a war with Mexico which ended three years l a t e r when the US acquired one-third of Mexico's t e r r i t o r y . In 1911, the US government intervened d i r e c t l y in the region once more to replace B r i t i s h influence with i t s own. In the 1930s, moreover, the US managed to gain almost t o t a l control over Guatemala's transportation, communications, and exports. These are only a few examples of a long l i s t of US interventions i n Central America. Each p r e s i d e n t i a l administration presented i t s own p o l i c i e s on t h i s t o p i c and acted according to a d i f f e r e n t plan of action. This section provides a broad overview of those p o l i c i e s which have had a greater impact on Central America. Furthermore, several cases have been focused on i n order to e s t a b l i s h a long-standing pattern of US intervention i n Central America. These cases are: US intervention i n Guatemala during the Eisenhower Administration; the Bay of Pigs invasion i n Cuba; and the invasion of Guatemala i n 1965. The next chapter w i l l then involve an in-depth study of the two p a r t i c u l a r cases which are the main focus of t h i s study: the US invasion of Grenada i n 1983, and intervention in Nicaragua by the Reagan Administration. A . T H E M O N R O E D O C T R I N E ; The "Monroe Doctrine", announced i n 1823 by President Monroe, was the f i r s t p o l i t i c a l expression by the US of the idea of spheres of influence. O r i g i n a l l y , the Monroe Doctrine contained three branches 4 9. The f i r s t branch included a declaration that the American continent would no longer be the 4 9J.G. Starke, Introduction to International Law (London: Butterworths, 1989 10th ed.) at 107. subject of future colonization by the European powers. This declaration arose out of the threats to the Western Hemisphere from c z a r i s t Russia which at the time owned Alaska, and was expanding i t s claims southward into the P a c i f i c Northwest. Also, the Holy A l l i a n c e of Russia, Austria, Prussia, and France was seen as a threat. Furthermore, there were rumours that a combined French-Spanish f l e e t would s a i l to the New World and recapture the newly independent countries 5 0. The second branch of the Monroe Doctrine was a declaration of the absence of American in t e r e s t i n European wars or a f f a i r s . F i n a l l y , and most s i g n i f i c a n t l y , the t h i r d branch contained a declaration that any attempt by the European powers to extend t h e i r system to any portion of the American continent would be regarded as "dangerous" to the "peace and safety" of the US51. This declaration was directed against any intervention on the part of the European powers to restore the authority of Spain over the L a t i n American countries which had gained independence with the support of the US. By the end of the 19th century, the Monroe Doctrine had helped bring the US into the mainstream of int e r n a t i o n a l p o l i t i c s and i d e n t i f i e d the US as a growing world power. The Doctrine had become the basis for the US claimed r i g h t to 50Howard J. Wiarda, The Democratic Revolution in Latin America: History, Politics, and U.S. Policy (U.S.A.: Holmes and Meiner Publishers, Inc., 1990) at 95. 5 1Starke, supra note 49, at 107; Isaak Dore, "The U.S. Invasion of Grenada: Resurrection of the "Johnson Doctrine"?" (Spring 1984) 20 Stan. J . I n t ' l L. 173 at 177. intervene i n any part of the American continent i f and when i t s v i t a l interests were threatened. One outcome of t h i s claim was that Latin America was able to t r y to grow and prosper since European powers were kept at a distance. By the mid-2Oth century, the Monroe Doctrine was transformed into a c o l l e c t i v e understanding among a l l the American states to preserve continental security under the auspices of the Organization of American States (OAS). A doctrine that was o r i g i n a l l y directed against intervention has now been transformed into a theory j u s t i f y i n g i t . Following the Monroe Doctrine, US administrations proclaimed numerous other p o l i c i e s . For instance, during the period p r i o r to the C i v i l War, i t was argued that i t was the destiny of the US to expand. Expansion was to be westward to the P a c i f i c Ocean, northward into Canada, and south toward Mexico, Central America, and the Caribbean 5 2. Any northerly expansion into Canada was checked by a compromise settlement with Great B r i t a i n i n 1846; the expansion into the south, however, resulted i n a war with Mexico which deprived that country of one-third of i t s national t e r r i t o r y . The most important re i n t e r p r e t a t i o n of the Monroe Doctrine was embodied i n the "Roosevelt Corollary" to the doctrine 5 3. In 5 2For a discussion of the theory of "Manifest Destiny", see Wiarda, supra note 50, at 95-7. / 5 3Federico G. G i l , "The Kennedy-Johnson Years" i n John D. Martz, ed., United States Policy in Latin America: A Quarter Century of C r i s i s and Challenge (U.S.A.: Univ. of Nebraska Press, 1988) 3 at 4-5. 1905, President Theodore Roosevelt announced that henceforth the US would use i t s power to maintain order i n the region, p a r t i c u l a r l y i n the Caribbean 5 4. President Roosevelt believed that an inter-American system that would promote US economic and p o l i t i c a l i n t e r e s t s had to be constructed. This l i n e of reasoning supported US interventionism because of the need to protect the increasing economic and s t r a t e g i c stakes of the US i n the Caribbean. As surplus of c a p i t a l was accumulating i n the US, American corporations were investing more and more i n L a t i n America. The building of the Panama Canal, furthermore, had important economic and s t r a t e g i c implications for the US. During World War I I , maintaining the status quo was an important objective of the Franklin Roosevelt Administration, even i f t h i s meant supporting the most undemocratic governments. This p o l i c y of supporting stable regimes, regardless of t h e i r nature, was followed well into the Cold War. Secretary of State John Foster Dulles believed strongly i n t h i s p o l i c y and he helped put i t i n action during the 1954 intervention i n Guatemala. B. GUATEMALA; In the view of the Eisenhower Administration, the i n t e r -^Walter LaFeber, Inevitable Revolutions: The United States in Central America (N.Y.: W. W. Norton and Company, Inc., 1984) at 37. American system had to become an anti-communist a l l i a n c e . The Administration worried that communism had i n f i l t r a t e d every Latin American country. In 1953 and 1954, i n p a r t i c u l a r , they feared that Soviet agents were planning to subvert Guatemala and turn i t into a base for Soviet i m p e r i a l i s t operations i n the Western Hemisphere. That was the main reason why, i n 1954, the United States supported the invasion of Guatemala by the army of Colonel C a s t i l l o Armas from bases i n Nicaragua and Honduras, overthrowing the l e f t i s t government of Jacobo Arbenz Guzman. Guatemala's history has been characterized by p o l i t i c a l repression and economic stagnation. For a century, Guatemala was led by personalist leaders. Arbitrary, excessive, and tyrannical regimes were the norm, u n t i l March 1951, when the f i r s t peaceful t r a n s i t i o n of power took place, and Jacobo Arbenz assumed the presidency 5 5. President Arbenz accelerated the rate of change i n Guatemala. He pledged to create an economically independent, modern and c a p i t a l i s t state. One of h i s most important undertakings was agrarian reform. In mid-1952, the l e g i s l a t u r e enacted a b i l l that empowered the government to expropriate uncultivated portions of land for the purpose of r e d i s t r i b u t i o n . The reforms, however, were moderate and modest since, for example, the reform b i l l l e f t untouched estates of up to 67 0 acres, i f at least two-thirds of the land 5 5Stephen G. Rabe, Eisenhower and Latin America: The Foreign P o l i c y of Anti-Communism (U.S.A.: The Univ. of North Carolina Press, 1988) at 44. was c u l t i v a t e d 5 6 . Landowners, furthermore, were compensated by int e r e s t bearing Guatemalan bonds. The main purpose of these measures was to create a nation of ind i v i d u a l landowners. This modest process of change, nevertheless, was perceived to threaten US economic and s t r a t e g i c i n t e r e s t s i n Guatemala. For one thing, the largest landowner i n Guatemala and the country's chief private employer was the United F r u i t Company of Boston, Massachusetts. The Compania Agricola de Guatemala, a wholly owned subsidiary of the United F r u i t Company, owned 550,000 acres of land, 85 percent of which was uncultivated. Between 1952 and 1954, the government expropriated about 400,000 acres of the Company's land. In return, i t offered approximately $3 an acre i n the form of guaranteed twenty-five year bonds bearing three percent annual i n t e r e s t 5 7 . On A p r i l 20, 1954, the Department of State presented the Government of Guatemala with a formal claim for $15,854,849. The claim had been f i l e d with the Department by United F r u i t i n connection with the expropriation of the lands. The Eisenhower Administration believed, by then, that what had started as a middle-class reform e f f o r t had been transformed into a r a d i c a l p o l i t i c a l movement that threatened US interests i n both Guatemala and the entire region. In a news conference on June 5 6Ibid, at 45. 57The $3-an-acre figure was arrived at by taking United F r u i t ' s declaration of the value of the land for taxable purposes. United F r u i t rejected t h i s valuation, claiming that the land was worth at least $75 an acre. Ibid, at 46. 38 8, 1954, Secretary Dulles stated that although Guatemala wanted to present the problem as one between Guatemala and the US r e l a t i n g to the United F r u i t Company, the r e a l concern was the presence of Communist i n f i l t r a t i o n i n Guatemala 5 8. Pr i o r to the revolution i n Guatemala, a number of public declarations were made by the US government against communism. In the Declaration of S o l i d a r i t y for the Preservation of the  P o l i t i c a l Integrity of the American States Against International  Communist Intervention, for instance, the American Republics declared that "international communism, by i t s anti-democratic nature and i t s i n t e r v e n t i o n i s t tendency i s incompatible with the concept of American freedom" 5 9. In another statement, Secretary Dulles r e i t e r a t e d the b e l i e f that domination and control of p o l i t i c a l i n s t i t u t i o n s of American states by communism "would constitute intervention by a foreign p o l i t i c a l power and be a threat to the peace of America" 6 0. The US government was aware of the fa c t that communists i n Guatemala constituted a small minority. They believed, however, 5 8"Formal Claims F i l e d Against Guatemalan Government" (May 1954) 30 Dep't St. B u l l . 678 at 678; "U.S. Pol i c y on Guatemala" (June 1984) 84 Dep't St. B u l l . 950. 5 9"Declaration of S o l i d a r i t y for the Preservation of the P o l i t i c a l Integrity of the American States Against International Communist Intervention" (March 1954) 30 Dep't St. B u l l . 420. 6 0"Intervention of International Communism i n the Americas -Statement of March 5 by Secretary Dulles at Caracas,-Venezuela" (March 1954) 30 Dep't St. B u l l . 419. that the minority acted to gain positions of power61. This b e l i e f was reinforced by the fa c t that Guatemala was the only American nation to be the r e c i p i e n t of a massive shipment of arms from behind the "Iron Curtain" 6 2. These developments led the US government to believe that the s i t u a t i o n i n Guatemala required immediate attention. The actual "invasion" of Guatemala began on June 18,1954 when the forces of Lieutenant Colonel Carlos Armas, an army o f f i c e r i n e x i l e , crossed into Guatemala from Honduras. Armas and h i s 200 followers were trained by the Central Intelligence Agency (CIA) i n Honduras63. The invasion i t s e l f was quite li m i t e d i n scope and i t l e f t the Guatemalans unimpressed; the CIA, however, supplemented the attack by the massive use of radio broadcasting from Honduras. This gave the impression to Guatemalans that the f i g h t i n g was intense and widespread, and i t l e f t a psychological impact on the population. The CIA further added to the hysteria by having i t s p i l o t s bomb the c a p i t a l c i t y 6 4 . F i n a l l y , on June 27, Arbenz f e l l from power and the Eisenhower Administration successfully completed what i t had set out to do. The invasion of Guatemala was s i g n i f i c a n t f o r a number of 61"Communist Influence i n Guatemala" (May 1954) 30 Dep't St. B u l l . 873. 6 2 I b i d . Also, "Arms Shipment to Guatemala from Soviet-Controlled Area" (May 1954) 30 Dep't St. B u l l . 835. 63Rabe, supra note 55, at 56. M I b i d . reasons. F i r s t , US-supported forces managed to overthrow the c o n s t i t u t i o n a l l y elected government of Guatemala. By most standards, the invasion was "successful". The US' objectives were achieved and a threat to American int e r e s t s was removed. Second, p r i o r to 1954, the Monroe Doctrine was based on the p r i n c i p l e that the Americas had to be protected from outside (mostly European) influence. The s i t u a t i o n i n Guatemala was d i f f e r e n t since the perceived threat came from inside the system. The ideas and practices of a Central American country were the main source of concern. F i n a l l y , the 1954 intervention occurred at a time when the US was s t i l l t r y i n g to e s t a b l i s h a post-World War II security order. Through the successful intervention i n Guatemala, the US maintained order i n the region. For these reasons, the operation i n Guatemala i s one of the more important episodes of US* Cold War p o l i c i e s . C. CUBA: When Fulgencio Batista f i r s t came to power i n the 1930s, he was thought of as a populist and a n a t i o n a l i s t who could save hi s country. His wide base of popular support led to considerable support from the US which was sometimes expressed i n the form of m i l i t a r y assistance. In the 1950s, however, he became more and more repressive and l o s t a l l h i s support. The United States was also no longer able to support such an unpopular regime. M i l i t a r y aid to Cuba was cut o f f i n a symbolic move; and r e l a t i o n s between the two countries became h o s t i l e 6 5 . As support for Batista was declining, F i d e l Castro's revolutionary movement was gaining more popularity. The v i c t o r y of F i d e l Castro's g u e r r i l l a forces i n Cuba on January 1, 1959 was a major concern for the US i n the years to follow. The US was compelled to develop a new approach regarding Central America; the p o l i c y of watchful waiting was no longer very e f f e c t i v e . Coincidentally, the foreign p o l i c y of the Soviet Union underwent a s h i f t at almost the same time. Moscow was prepared to extend aid to revolutionary movements even when they were not of communist o r i g i n , and embarked upon a program of substantial economic aid to the under-developed countries 6 6. Soon a f t e r the Cuban revolution, Castro took decisive steps to r e d i s t r i b u t e private land holdings, expropriate American-owned businesses, and implement p o l i c i e s designed to redress working class grievances. Aside from being concerned with Castro's communist p o l i c i e s , the US government was unhappy with the turn of events because the American business community was suf f e r i n g as well. American businesses had developed a working re l a t i o n s h i p with the Batista government, and were eventually able to invest heavily i n the island's sugar and t o u r i s t industries. 6 5Wiarda, supra note 50, at 218. ^ G i l i n Martz, supra note 53, at 218. Although Castro was not i n i t i a l l y regarded i n h o s t i l e fashion, by mid-1960, US rel a t i o n s with Cuba had become very sour. President Eisenhower cut off a l l imports from Cuba i n an attempt to discourage Castro's move towards the Soviet Union. This, however, pushed Castro closer to the Soviet Union and China. F i n a l l y , President Eisenhower decided to break a l l formal t i e s with Cuba and to end diplomatic r e l a t i o n s 6 7 . When John F. Kennedy moved into the Pr e s i d e n t i a l o f f i c e i n January 1961, Cuba's r e l a t i o n s with the Soviet Union were seen as a serious threat. Tolerating Castro's communist tendencies may have been, on t h e i r own, bearable; the main problem was that he was providing L a t i n America with a viable option to the democratic system that the US had supposedly been promoting. There was, consequently, great domestic pressure on President Kennedy to act quickly. Upon taking o f f i c e i n 1961, President Kennedy was t o l d of plans made by the CIA, under Eisenhower's d i r e c t i o n , to stage an invasion of Cuba. Eisenhower had made t h i s decision on March 17, 1960, and i t had been put into action immediately. The r e s u l t was a CIA document, "A Program of Covert Action Against the Castro Regime", which presented a four-part program of attack: (1) "creation of a responsible and u n i f i e d Cuban opposition to the Castro regime located outside Cuba"; (2) "a powerful propaganda offensive" against Castro; 6 7Michael J . Kryzanek, U.S. — Latin American Relations (N.Y.: Praeger Publishers, 1985) at 51. 43 (3) creation of a "covert action and i n t e l l i g e n c e organization within Cuba", responsive to the e x i l e opposition; (4) "the development of a paramilitary force outside of Cuba for future g u e r r i l l a action" 6 8. After t h i s document was drafted, administration o f f i c i a l s focused on how they could harm Castro's regime. President Kennedy was advised of t h i s plan and was t o l d that the anti-communist rebels were to be trained i n Guatemala and Nicaragua and would invade Cuba from the south at the Bay of Pigs 6 9. The CIA analysis showed two points that were v i t a l to the success of the operation: F i r s t , that the Castro regime was vulnerable to such a surprise attack; and second, that once the rebels were on Cuban t e r r i t o r y , others would r i s e up and j o i n them i n the f i g h t . Furthermore, the US had promised considerable a i r support to the rebels. The plan seemed flawless, and President Kennedy gave the go-ahead. On A p r i l 17, 1961, about 1,500 rebels landed i n Cuba at the Bay of Pigs. The rebels faced great resistance from the l o c a l m i l i t i a , there was no l o c a l support for them, and President Kennedy refused to provide the a i r cover that had been promised. The invasion ended disastrously within hours with the capture of 1,200 of the rebels. The r e s u l t , i r o n i c a l l y , was that the Castro regime became even more popular and stronger — both within and outside Cuba. On numerous occasions, both p r i o r and a f t e r the invasion at 6 8Quoted i n Rabe, supra note 55, at 129. 6 9Kryzanek, supra note 67, at 51. the Bay of Pigs, President Kennedy and his o f f i c i a l s i n s i s t e d that the US has never had (and never w i l l have) the intention to m i l i t a r i l y intervene i n Cuba70. A l e t t e r written by Khrushchev to Kennedy on A p r i l 18, on the other hand, claimed that the US was d i r e c t l y responsible for and involved i n the invasion 7 1. The armed bands that invaded Cuba were prepared, equipped, and armed i n the US; the planes which bombed Cuban towns belonged to the US; and even the bombs themselves were American. Other o f f i c i a l statements took the po s i t i o n that, although the US has never committed an act of aggression against Cuba, Cuban freedom-fighters w i l l always have the support and the sympathy of the United States. The US " i s committed to the proposition that a l l people should have the r i g h t to f r e e l y determine t h e i r own future by democratic processes", and communism, of course, has never been " i n s t a l l e d i n any country by the free vote of i t s people" 7 2. President Kennedy took t h i s image one step further himself by speaking of the rebels as a "small band of gal l a n t Cuban refugees" and "gallant men and women f i g h t i n g to redeem the independence of t h e i r homeland"73. 7 0See, for example, Kennedy's l e t t e r to Khrushchev on A p r i l 17 i n "United States and Soviet Union Exchange Messages i n Regard to Events i n Cuba" (May 1961) 44 Dep't St. b u l l . 661. Also see Statement of A p r i l 15 by U.S. Representative Adlai Stevenson i n the U.N. i n "U.N. General Assembly Debates Cuban Complaint" (May 1961) 44 Dep't St. B u l l . 667. 7 1 I b i d , at 662. 7 2 I b i d , at 664. 73"The Lesson of Cuba" (May 1961) 44 Dep't St. B u l l . 659. Whatever the US may have said after the invasion, the r e s u l t was that Castro's strength and power increased. F i r s t , the Kennedy Administration r e a l i z e d that i t had underestimated both the strength of the regime and people's support of i t . Second, when the r o l e of the US and the CIA became obvious, i t became even harder to j u s t i f y the intervention. In short, the Bay of Pigs episode was nothing short of a disaster for the Kennedy Administration. Almost one month p r i o r to the Bay of Pigs invasion, President Kennedy had announced the "Alliance for Progress" proposal. This p o l i c y was to a s s i s t democratization i n Latin America through socio-economic aid, and thus i n h i b i t the spread of communism74. The goals of the US — s t a b i l i t y and a n t i -communism — had not changed; only the means were s l i g h t l y d i f f e r e n t . The A l l i a n c e was one of the most noble US p o l i c y e f f o r t s toward Latin America because i t was based upon a set of L a t i n American needs. The o r i g i n s of the program were derived from the need to modify the obsolete s o c i a l systems of Latin America, and to accelerate economic development and eradicate poverty. Unfortunately, the US lacked the adequate experience and the required s k i l l s to successfully implement a program of such magnitude, and the A l l i a n c e soon f a i l e d . 7 4Wiarda, supra note 50, at 104-6; G i l i n Martz, supra note 53, at 9-17. 46 D. DOMINICAN REPUBLIC: Lyndon Johnson came into o f f i c e i n November of 1963, a f t e r President Kennedy's assassination. The new Johnson Administration turned i t s attention inward toward domestic issues, and the momentum for change i n Lat i n America i n i t i a t e d by President Kennedy began to weaken. When President Johnson did venture into Latin American a f f a i r s , i t was not to further the A l l i a n c e for Progress goals. Rather, his main concern was to prevent the communist i n f i l t r a t i o n of the Western Hemisphere. The US could not allow the emergence of "another Cuba" at any cost. Against t h i s backdrop of b e l i e f s and ideas, the events of 1965 unfolded. The intervention i n the Dominican Republic i n 1965 was the f i r s t instance i n recent hi s t o r y i n which the US ca r r i e d an open invasion of another state in order to preserve hemispheric s o l i d a r i t y . The revolution that deposed the r i g h t i s t m i l i t a r y regime of President Juan Bosch on A p r i l 24, 1965, was believed to be a threat to the American c i t i z e n s who were l i v i n g i n the Dominican Republic. President Johnson sent 23,000 American troops into the Dominican Republic to bring the c i v i l war under control and, supposedly, to ensure the safety of the Americans l i v i n g i n that country 7 5. On Saturday, A p r i l 24, revolution erupted i n the Dominican 7 5Michael J. Kryzanek, "The Dominican Intervention Revisited: An A t t i t u d i n a l and Operational Analysis" i n Martz, supra note 53, 135 at 135 [hereinafter Kryzanek i n Martz]. Republic and elements of the m i l i t a r y overthrew the government. The rebels, however, were themselves divided and f i g h t i n g broke out amongst them. Some wanted to restore former President Bosch; others opposed t h i s movement. U n t i l Wednesday afternoon, the US did not intervene, except for urging the revolutionaries to accept a cease f i r e 7 6 . Around 3 p.m. on that day, the President received a cable from US Ambassador Bennett who had been informed by the Dominican chief of p o l i c e and governmental authorities that the safety of US c i t i z e n s could no longer be guaranteed. Ambassador Bennett urged President Johnson to order an "immediate" landing of American forces to rescue the US nationals 7 7. On A p r i l 28, 400 Marines had landed i n the Dominican Republic 7 8. This decision was made before either the UN or the OAS were contacted. In fact, i t was not u n t i l the following day that the US representative to the UN, Adlai Stevenson, informed the Security Council that President Johnson had ordered American troops to the Dominican Republic 7 9. On A p r i l 30, the US representative to the OAS, Ambassador Ellsworth Bunker, met with the members of the OAS and asked the Council of the OAS to d i r e c t an appeal for a cease-fire to a l l sides involved i n the 76"U.S. Acts to Meet Threat i n Dominican Republic" (May 1965). 52 Dep't St. B u l l . 738 at 744. ""ibid, at 745. 7 8 I b i d , at 738. 7 9 I b i d . 48 c o n f l i c t 8 0 . By that day, about 2,400 c i t i z e n s of the US and of other nations were evacuated, and about the same number were s t i l l l e f t i n the Dominican Republic 8 1. Meanwhile, the OAS had adopted a resolution c a l l i n g for cease-fire, and the US forces i n the Dominican Republic had created an i n t e r n a t i o n a l neutral zone of refuge i n Santo Domingo82. The excuse of having to es t a b l i s h such a zone allowed the President to send two additional battalions of about 1,500 men and additional detachments of Marines to the Dominican Republic on May 1. Statements made by President Johnson i n the following days c l e a r l y revealed the r e a l goal of the US. The safety of US c i t i z e n s was no longer the dominant issue. Instead, the President stated that the goal of the US was to permit the people of the Dominican Republic "to f r e e l y choose the path of p o l i t i c a l democracy, s o c i a l j u s t i c e , and economic progress" 8 3. The following day, on May 2, the President made another statement. This time he e x p l i c i t l y mentioned the communist element of the revolution. The revolution, according to him, had begun as a popular democratic movement. I t was soon taken over, however, by Cuban-trained Communist conspirators who were 8 0Ibid, at 740. 8 ,Ibid, At 742. 82The resolution was adopted by a vote of 16 to 0, with 4 abstentions (Chile, Mexico, Uruguay, and Venezuela). See i b i d , at 741. 8 3Ibid, at 74 3. determined to lead the country. The goal of the US i n t h i s mission was then said to be preventing the creation of another Communist state i n the Western Hemisphere84. President Johnson ordered 2,000 extra men to proceed immediately to the Dominican Republic. He also issued instructions to land an additional 4,500 men at the e a r l i e s t possible moment85. The Johnson Administration was determined to destroy the "Communist conspirators" because i f they had seized power, then the process would have been i r r e v e r s i b l e , and the "declared p r i n c i p l e s of the OAS" would have been frustrated 8 6. I t was much easier for the US to crush the Communist movement under conditions of c i v i l disorder and chaos than to t r y to remove an established regime. The Dominican intervention was, of course, much more complex than i s presented here. The major factor which c l e a r l y stands out, however, was the threat of communism to hemispheric s o l i d a r i t y . American forces were sent to the Dominican Republic to insure that "another Cuba" would not be created, and to show that, from here on, the US would stand up to Communist expansionism. After s i x months, US troops l e f t the Dominican Republic, and there was a return to normalcy — on the surface at least, since the involvement of the US i n Dominican a f f a i r s •"ibid, at 742. 8 5Ibid, at 746. 8 6"Secretary Discusses Situation i n Dominican Republic". (May 1965) 52 Dep't St. B u l l . 842. 50 during the post-intervention period appeared to be low key. During the presidencies of Nixon and Ford, comparatively less attention had to be paid to Central America. The region was r e l a t i v e l y calm and s e t t l e d and no major c r i s e s developed. The threat of Soviet expansionism i n Latin America was u n l i k e l y , e s p e c i a l l y a f t e r Khrushchev's ouster i n 1964. Nixon and Kissinger believed that Latin America and A f r i c a were, at lea s t for the time being, safe from Soviet i n f i l t r a t i o n . Nixon knew, furthermore, that i n the wake of the Vietnam War, the US could no longer act as s h e r i f f i n the world 8 7. To considerably simplify the p o l i c i e s of Nixon and Ford, i t can be said that, generally, Latin American issues were dealt with at two l e v e l s . I f the matter was perceived as having no East-West aspects, then i t was handled by the Department of State bureaucracy. Individuals who had the furtherance of good re l a t i o n s between countries as t h e i r highest p r i o r i t y , and who were w i l l i n g to make substantial concessions i n order to assure c o r d i a l r e l a t i o n s would deal with such matters. I f , on the other hand, the issue had Cold War importance, then i t received the attention of Kissinger and Nixon, and they were not w i l l i n g to compromise at a l l 8 8 . In t h i s category, the goal of good 8 7LaFeber, supra note 54. This policy, i n fact, was the "Nixon Doctrine" of 1969. 88See Michael J . Francis, "United States P o l i c y Toward L a t i n America During the Kissinger Years" i n Martz, supra note 53, 28. at 28-60, for a detailed discussion of the "Kissinger Years". r e l a t i o n s with Latin American countries was not very important because at stake was competition with the Soviet Union. E. THE REAGAN ADMINSTRATION: During h i s presidency, Carter's Central American p o l i c y was mostly preoccupied with human ri g h t s issues. President Carter believed that the US had a duty to protect Central Americans from the a r b i t r a r y power of the state 8 9. He set out to improve the l i v i n g conditions of Central Americans through slow, conservative reform. One problem with t h i s p o l i c y was that Central American countries were t r a d i t i o n a l l y used to receiving m i l i t a r y a id as an incentive to comply with US demands. Carter, however, could not use m i l i t a r y aid as leverage for reducing human ri g h t s v i o l a t i o n s when, in most cases, increased m i l i t a r y strength led to more human righ t s v i o l a t i o n s . Although toward the end of h i s presidency Carter was acting more d e c i s i v e l y , the in-coming Reagan Administration believed that he had not taken measures that were f o r c e f u l enough with respect to countries such as Nicaragua and Iran. President Reagan was determined that he was not going to be put i n a p o s i t i o n of compromise. During the p r e s i d e n t i a l campaign of 1980, Reagan warned that, with respect to the threat of growing Marxist subversion i n Central America, "[w]e are the LaFeber, supra note 54, at 210. 52 l a s t domino"90. He believed that a "hands-off" posture i n Central America would inev i t a b l y r e s u l t i n an adverse domino e f f e c t . In h i s attempt to further US interests, President Reagan pressured the international legal system into changing i n a manner that was b e n e f i c i a l to the US. New rules were made up, and old ones were revised or reinterpreted. For instance, the Reagan Administration claimed a broad r i g h t of self-defence, r e l i e d less and less on international bodies such as the UN, and placed heavy emphasis on the r i g h t of a state to preserve i t s national i n t e r e s t s . A l l these claims led to what can be l a b e l l e d as the "Reagan Doctrine". From one point of view, the Reagan Doctrine can be viewed as an amended version of the Monroe Doctrine. The Monroe Doctrine declared that no foreign government or expansionist ideology should be able to impose i t s system on the Western Hemisphere. The Reagan Doctrine takes t h i s declaration one step further by asserting a r i g h t to give m i l i t a r y assistance and aid to L atin American countries whose t e r r i t o r i a l i n t e g r i t y and p o l i t i c a l independence i s being v i o l a t e d by forces perceived to be Marxist aggressors. Furthermore, the issue i s no longer mere containment because assistance w i l l be given to insurgencies opposing Marxist governments. According to the Reagan Doctrine, 9 0Robert A. Friedlander, "Confusing Victims and V i c t i m i z e r s : Nicaragua and the Reinterpretation of International Law". (Spring/Summer 1985) 14 Den. J. I n t ' l L. and Pol'y 87 at 91. communist ideology per se threatens American security. The United States must, therefore, commit i t s e l f to r e s i s t i n g Soviet and Soviet-supported aggression wherever i t arises, and to r o l l i n g back communism by helping anti-communist movements. If the United States f a i l s to prevent the advance of communism worldwide, then i t s a l l i e s and neutrals w i l l r e a l i g n with the Soviet Union. The Third World was to be the c r i t i c a l battleground i n the war against communism. In the Third World, no region i s more c r i t i c a l to US s t r a t e g i c interests than Central and Latin America. Mexican and Venezuelan o i l , the Panama Canal, and the Caribbean sea-lanes — i f taken c o l l e c t i v e l y — are v i t a l to US security. In order to preserve i t s security, Reagan was w i l l i n g to put aside post-Vietnam i n s e c u r i t i e s and r e l y on m i l i t a r y intervention as a prominent instrument of foreign p o l i c y . Humanitarian intervention was i n i t i a l l y offered as a l e g a l basis for the Reagan Doctrine. I t was assumed that an undemocratic government i s far more l i k e l y to commit basic human rights v i o l a t i o n s than a democratic government. Thus, President Reagan was convinced that i t i s better to intervene sooner, rather than l a t e r , i n an e f f o r t to prevent a non-democratic government from s e i z i n g the reins of power and then perpetuating i t s e l f by i t s monopoly of armed power against i t s own people 9 1. President Reagan put his ideas about humanitarian 9 1Anthony D'Amato, "Nicaragua and International Law: The ^Academic1 and the xReal'" (July 1985) 79 Am. J. I n t ' l L. 657 at 660. intervention into action i n the cases of US intervention i n Grenada and Nicaragua. The focus of the remainder of t h i s discussion, i n fact, w i l l be on the Reagan Administration's decision to intervene i n Nicaragua and Grenada. These two countries have been chosen as subjects of a more de t a i l e d study for several reasons. F i r s t , i n both cases, the decision to intervene was made by the same administration, and the cases are close to each other. There i s , therefore, a strong basis for comparison, and v a l i d conclusions may be drawn. Second, these decisions are more recent than others and they r e f l e c t more immediate US p o l i c i e s toward L a t i n America 9 2. The t h i r d reason for focusing on these cases i s that by studying these two major decisions, a r e l a t i v e l y c l e a r sense of Reagan's foreign p o l i c y toward Latin America can be obtained. F i n a l l y , since t h i s i s a discussion of the ro l e of int e r n a t i o n a l law i n US decision-making, i t i s wise to confine the study to one administration. Different presidents may have had d i f f e r e n t views regarding international law or, more importantly, norms and p r i n c i p l e s of international law may have changed through time. Focusing on the Reagan Administration allows one to reach a conclusion, at least, with respect to one administration. 9 2 I t should be noted that p o l i c i e s of the Bush Administration could not, and should not, be studied due to a lack of available information and material. 55 V. CASE STUDIES A. GRENADA Grenada was granted independence from B r i t i s h c o l o n i a l rule i n 1974 and functioned under a parliamentary government u n t i l 1979. In March 1979, Maurice Bishop's New Jo i n t Endeavour for the Welfare, Education, and Liberation (JEWEL) Movement ousted then-Prime Minister S i r E r i c Gairy and his Mongoose Gang i n a near bloodless coup. Prime Minister Bishop's People's Revolutionary Government expanded s o c i a l services and, at least i n i t i a l l y , seem to have had a strong base of popular support. Bishop and h i s Deputy Prime Minister Bernard Coard were t r y i n g to construct a s o c i a l i s t democracy on a r e l a t i v e l y weak and technologically backward foundation. The New JEWEL Movement was meant to represent a new base on l i f e and s i g n i f y the new d i r e c t i o n i n which the society should advance 9 3. The Bishop regime, however, i n d e f i n i t e l y suspended elections, ended freedom of the press and other p o l i t i c a l freedoms, and became increasingly repressive. By 1983, there was strong evidence of 9 3Selwyn R. Cudjoe, Grenada: Two Essays (N.Y.: Calaloux Publications, 1984) at 10. torture of p o l i t i c a l prisoners and other human r i g h t s abuses. The v i o l a t i o n of international human ri g h t s standards, however, e l i c i t e d l i t t l e i nternational attention outside the small Caribbean community94. By 1983, Grenada had built-up an army of approximately 600 regular Cuban-trained troops and an armed reserve m i l i t i a of 2,500-2,800, and had active plans to add twelve more battalions 9 5. This m i l i t a r y build-up exceeded the combined m i l i t a r y forces of the six other states in the Organization of Eastern Caribbean States (the other OECS members are St. Vincent and the Grenadines, St. Lucia, Dominica, Antigua/Barbuda, St. Kitts/Nevis, and Montserrat). Grenada's m i l i t a r i z a t i o n , furthermore, was accompanied by the increasing influence of the Soviet Union and Cuba i n the small isl a n d . In the 1982 session of the United Nations General Assembly, more than 92 percent of Grenada's votes were cast with the Soviet bloc, including one of the few votes i n favour of the Soviet invasion of Afghanistan 9 6. Cuban advisers held positions i n a l l key m i n i s t r i e s and were active i n v i r t u a l l y every aspect of the army. In fact, i n 1983, regular and paramilitary Cuban forces in Grenada out-numbered M J . Norton Moore, "Grenada and the International Double Standard" (Jan. 1984) 78 Am. J. I n t ' l L. 145. 9 5 I b i d . ^Departments of State and Defense, Grenada: A Preliminary Report 15-17 (1983); c i t e d in i b i d , at 146. 57 the active strength of the Grenadan Army97. The approach adopted by Bishop was hardly consistent with the strong non-interventionist t r a d i t i o n of the members of the OECS Although the Bishop regime posed no immediate threat to the region, the US was not pleased with the developments. Grenada's move towards Cuba and the Soviet Union was seen as a threat to US int e r e s t s and security. Prime Minister Bishop's pro-Marxist regime was toppled by Deputy Prime Minister Bernard Coard on October 12, 1983. A series of events between October 12 and October 25, 1983 led to a decision by the United States' President Ronald Reagan to invade Grenada. By October 30, the invasion had been completed, and "order" was restored in the isla n d . The following i s a d e t a i l of the events that led to President Reagan's decision that m i l i t a r y force was required. Sometime during the night of October 13, 1983, Maurice Bishop was placed under arrest by a dissident f a c t i o n led by Coard. A period of p o l i t i c a l confusion, r i o t s , curfews, breaking down of authority and increasing threats to c i v i l i a n s followed Bishop's arrest. On October 16, the head of Grenada's army and i t s Ambassador to Cuba, Major Liam Omo Cornwall, announced i n a radio statement that the army had seized control "Excerpts of US President Ronald Reagan's Televised Speech on Grenada and Lebanon, on October 27, 1983", reprinted i n S. F. Lewis and D. T. Mathews, eds, Documents on the Invasion of Grenada, October 1983 (Puerto Rico: I n s t i t u t e of Caribbean Studies, 1984) at 27. 58 of the nation and deposed Prime Minister Bishop 9 8. This statement was the f i r s t confirmation of reports, c i r c u l a t i n g during the previous two days, that Bishop was under some form of detention, and that Coard was i n charge of the country. On October 19, Bishop, three members of h i s cabinet (including Education Minister Jacqueline C r e f t ) , and union leaders were executed. At least eighteen people died, including women and children, when the coup forces opened f i r e on a crowd of Grenadans protesting t h e i r actions 9 9. That same day, Radio Free Grenada broadcast a statement by Army Commander General Hudson Austin who announced the d i s s o l u t i o n of the Government and, the i n s t a l l a t i o n of a sixteen member Revolutionary M i l i t a r y Council (RMC). The RMC imposed a f i v e day "24-hour shoot-on-sight curfew" on c i v i l i a n s which, i n r e a l i t y , had the same ef f e c t as putting the entire population under house arrest. Since Bishop's coup in 1979, the US had f e l t uneasy about Grenada. The Caribbean was perceived as c r u c i a l to America's security since three fourths of a l l US o i l imports t r a n s i t the area — that i s , more o i l than t r a n s i t s the S t r a i t of Hormuz100. I t was believed, however, that Grenada had become a Cuban s a t e l l i t e that was moving more and more towards Moscow and 9 8"Chronology" (Dec. 1983) 83 Dep't St. B u l l . 86 at 87. "Norton Moore, supra note 94, at 14 6. 100M. Adkin, Urgent Fury: The Battle for Grenada (U.S.A.: Lexington Books, 1989) at 109. Havana101. Bishop's execution was a f l e e t i n g opportunity for the US to act dramatically i n the Caribbean. The chance for i n f l i c t i n g m i l i t a r y defeat on a r i g i d Marxist regime and establishing a "democratic" government would e x i s t for a few days only, and t h i s was an opportunity that the US could not e a s i l y ignore. On October 13, an inter-agency group was formed i n Washington to discuss the growing unrest i n Grenada and to examine the possible dangers i t might pose to the security of US c i t i z e n s l i v i n g or studying in Grenada. The following day, t h i s group met again to review unconfirmed reports of Bishop's arrest. According to Langhorne A. Motley, Assistant Secretary for Inter-American A f f a i r s , the State Department began to review the standard evacuation plans for Grenada. The o f f i c e of the Joi n t Chiefs of Staff, meanwhile, was asked to review the contingency evacuation plans 1 0 2. On October 17, Motley chaired a sp e c i a l inter-agency meeting to review a l l available 1 0 1Apparently, aft e r the invasion, US forces found proof of Grenada's move towards the Soviet Union and Cuba. In a statement to the U.N. General Assembly on November 2, 1983, Ambassador Kirkpatrick stated that documents of secret m i l i t a r y assistance agreements between Grenada and the Soviet Union, Cuba, and North Korea had been found. The agreements were executed between 1980 and 1982, and provided for, among other things, the t r a i n i n g of Grenadan s o l d i e r s , and the free delivery of m i l i t a r y supplies to Grenada. "Ambassador Kirkpatrick's Statement, U.N. Security Council, Oct. 27, 1983" (Dec. 1983) 83 Dep't St. B u l l . 74 at 77. These documents supposedly proved, a l b e i t a f t e r the fact, that US worries regarding Grenada's a l l i a n c e with the Communist countries was j u s t i f i e d . 1 0 2Langhorne A. Motley, "The Decision to A s s i s t Grenada" (March 1984) 84 Dep't St. B u l l . 70 at 70. information and examine preparation for a possible evacuation of US c i t i z e n s . From that day forward, the planning took place i n an inter-agency forum with representatives of a l l relevant agencies p a r t i c i p a t i n g on a d a i l y basis 1 0 3. The President and the Vice-President were kept informed of a l l developments that occurred i n these meetings. On October 18, concern for the safety of American c i t i z e n s i n Grenada had apparently peaked and, as a r e s u l t , a formal request for assurances of the well-being of the US c i t i z e n s was sent to Grenada v i a Barbados 1 0 4. The United States, as i s i t s p o l i c y with small countries, did not have an embassy i n Grenada and r e l a t i o n s between the two countries were handled through the United States Embassy i n nearby Bridgetown, Barbados. The next day, Grenada responded to the request for the safety of Americans. The response read, i n part, that the i n t e r e s t s of US c i t i z e n s are i n no way threatened by the present s i t u a t i o n i n Grenada which the Ministry [of External A f f a i r s ] hastens to point out i s a purely int e r n a l matter 1 0 5. Motley, however, interpreted t h i s response as containing no assurances, no concrete measures to safeguard foreign residents, 1 0 3Ibid. Unfortunately, no information i s a v a i l a b l e on which agencies were involved i n these meetings. 1 0 4Ibid, at 71. There were about 1,100 US nationals on the island, 650 of whom were students at St. George's University, School of Medicine. 1 0 5Ibid. " j u s t a bland assertion and a blunt slamming of the door" 1 0 6. He claimed, furthermore, that on the 19th, the US Embassy i n Bridgetown attempted to send two Foreign Service o f f i c e r s to Grenada to make an assessment of the s i t u a t i o n . Their plane was turned back, and not u n t i l three days l a t e r were US o f f i c i a l s permitted to t r a v e l to the i s l a n d 1 0 7 . The delay i n ascertaining the safety of the Americans on the island was a great source of concern for the Reagan Administration that did not want another Teheran-type hostage s i t u a t i o n . A second occurrence on the 19th that considerably worried the o f f i c i a l s was the murder of Bishop and members of h i s cabinet. State Department received a warning from Ambassador Milan D. Bish (US Ambassador to Barbados) that the necessity for a sudden evacuation might a r i s e at any time 1 0 8. This day marked the beginning of serious planning for the p o s s i b i l i t y that evacuation of the Americans, without the permission of the Grenadan government, would prove necessary. On Thursday October 20, as more information about the developments i n Grenada was a r r i v i n g i n Washington, the President asked Vice President George Bush to chair a meeting with National Security advisers reviewing the events to date. Subsequent to that meeting, and on the recommendation of that 1 0 6Ibid. 1 0 7Ibid. 1 0 8Ibid. 62 group, the government made a public expression of i t s "grave concern" at the events 1 0 9. The President, furthermore, decided to d i v e r t some naval ships, that were headed toward Lebanon, i n the d i r e c t i o n of Grenada. This was only a precautionary measure so that i f the s i t u a t i o n became worse, or the non-permissive evacuation of the Americans became inevitable, the US would have the c a p a b i l i t y to act quickly and d e c i s i v e l y 1 1 0 . On October 21, Barbados (although i t i s not a member i t s e l f ) hosted a meeting of the states of the OECS. Jamaica, though i t i s not a member either, was also i n v i t e d by the members of the OECS to be present at the meeting. The United States was not present at the meeting; President Reagan was, however, informed of the decisions made by the OECS states immediately afterwards. Grenada, a member state of the OECS, on the other hand, was not asked to p a r t i c i p a t e on the basis that i t lacked an apparent government111. After considerable discussion (and the voicing of doubts on the part of Antigua) 1 0 9F. Ambursley and J. Dunkerley, Grenada: Whose Freedom? (G.B.: La t i n American Bureau, 1984) at 77. Unfortunately, more information on the deliberations i n t h i s meeting i s not available. 1 1 0Lewis and Mathews, supra note 97, at 20. u lMotley, supra note 102, at 72. Even though Grenada was not i n v i t e d to t h i s meeting, i t w i l l become s i g n i f i c a n t l a t e r that the O.E.C.S. did not suspend Grenada's membership i n the Organization. On October 23, the heads of state of CARICOM (the o v e r a l l Caribbean Community), however, suspended Grenada's membership. See "Statement Prepared for Presentation Before the House Committee on Foreign A f f a i r s on Nov. 2, 1983 by Deputy Secretary of State Kenneth W. Dam", reprinted i n M. Nash Leich, "Contemporary Practice of the US Relating to International Law" (Jan. 1984) 78 Am. J. I n t ' l L. 200 at 207. the Caribbean states decided, because of t h e i r i n a b i l i t y to confront the m i l i t a r y strength of Grenada alone, to request the assistance of the United States, Jamaica and Barbados 1 1 2. A statement released by the OECS on October 25 stated that decision to take action was made when, af t e r considering the state of events, they became "deeply concerned" that the si t u a t i o n would worsen and that there would be "further loss of l i f e , personal injury and a general deterioration of public order" 1 1 3. The next day, October 22, the US received a confirmation of the OECS request. The message, which came i n from Barbados, reached Secretary of State George Shultz i n Augusta at 2:45 a.m. , and he discussed i t with Robert C. McFarlane (Assistant to the President for National Security A f f a i r s ) . About half-hour l a t e r , Vice President Bush convened the key National Security advisers i n Washington 1 1 4. After that meeting, Reagan signed orders to prepare for a broader mission to restore order i n Grenada i n co-operation with the Caribbean forces 1 1 5. U n t i l then, according to Motley, the Administration had been planning u n i l a t e r a l l y by focusing on the safety of the Americans i n Grenada. When the member states of the OECS approached them, 1 1 2Ambursley, supra note 109, at 80. 1 1 3"Chronology", supra note 98, at 88. The complete text of the OECS statement can be found i n "Grenada: C o l l e c t i v e Action by the Caribbean Peace Force" (Dec. 1983) 83 Dep't St. B u l l . 67. 1 1 4Lewis and Mathews, supra note 97, at 20. I 1 5Motley, supra note 102, at 70. however, the decision-making process sh i f t e d into a m u l t i l a t e r a l mode. That same day, General Austin drew up a statement declaring that the RMC was to be a s t r i c t l y temporary government, that a c i v i l i a n administration was to be appointed within twelve hours, and that a team would be appointed to investigate the events of October 19, the day of Bishop's execution. This statement was transmitted to Washington and London over the week-end, although neither government admitted receiving i t u n t i l a f t e r the invasion 1 1 6. Over the week-end, Austin agreed to meet with the Premier of St. Lucia, John Compton. From midday on Saturday October 22, a l l the signals from Grenada pointed to a growing d i s p o s i t i o n to negotiate 1 1 7. United States o f f i c i a l s f i n a l l y reached the is l a n d on Saturday October 22. They unanimously assessed the po s i t i o n of those o f f i c i a l s they were able to meet as "o b s t r u c t i o n i s t " and "unco-operative". No coherent government seemed to be functioning or even forming 1 1 8. This assessment, however, contradicts the statement that was made by Austin on the same day. Furthermore, the Department of State reported that on October 21, General Austin i n v i t e d a delegation from Barbados to look into the safety of US and United Kingdom nationals on the island. The delegation included two US diplomats representing U 6Ambursley, supra note 109, at 83. 1 1 7Ibid. 1 1 8Motley, supra note 102, at 71. the Ambassador to Barbados and a representative to the B r i t i s h High Commissioner 1 1 9. On Sunday October 23, some B r i t i s h and Canadian c i t i z e n s as well as a small number of US students l e f t Grenada i n chartered a i r c r a f t , which were i n no way impeded from f l y i n g by Grenadan au t h o r i t i e s 1 2 0 . If Austin and other o f f i c i a l s had r e a l l y been unco-operative, then i t becomes very d i f f i c u l t to explain or understand these developments. On October 23, Ambassador McNeil and General C r i s t s e c r e t l y v i s i t e d Barbados, and confirmed the widening scope of the c r i s i s . They met with the leaders of the Caribbean countries, and c a r e f u l l y explored a l l the information available to them. Throughout these meetings, Washington was informed of any developments by telephone. Planning for peaceful evacuation, however, continued i n p a r a l l e l with the other plans. The p o s s i b i l i t y of using a Cunard-line ship that was i n the v i c i n i t y was explored. It soon became apparent that conditions on the island would not permit evacuation by c i v i l i a n a i r c r a f t . Subsequent information revealed that the same Cunard ship was f i r e d at by Grenadan a n t i - a i r c r a f t guns 1 2 1. Sunday night, President Reagan received news of the 230 US marines that had been k i l l e d by a bomb that destroyed t h e i r barracks i n Beirut. The d i f f i c u l t i e s and losses suffered by the "'"Chronology", supra note 98, at 88. 120Ambursley, supra note 109, at 84. 1 2 1Motley, supra note 102, at 71. Statement by Ambassador Motley, Assistant Secretary for Inter-American A f f a i r s — before the House Armed Services Committee on January 24, 1984. US contingent i n Be irut had already led to much domestic c r i t i c i s m of the Reagan government. The invasion of Grenada may have offered a chance to res tore United States' reputat ion as a world power and provide substance for the c la im that the Adminis trat ion was combatting the "Soviet-Cuban conspiracy". Late Sunday night , the President made "a tentat ive decis ion" to respond to the request of the OECS 1 2 2 . On Monday October 24, as plans were being made and the forces organized, a message a r r i v e d from the Prime Min i s ter of Barbados informing the United States that he had received a c o n f i d e n t i a l appeal from the Governor General of Grenada, S i r Paul Scoon, for ass istance to res tore order on the i s l a n d 1 2 3 . The President met i n the afternoon with the Secretary of Defence and the c h i e f s , and at the conclusion of the meeting made "a sort of semif ina l m i l i t a r y dec is ion" 1 2 4 . The d i r e c t i v e of the President to proceed was signed at about 6:00 p.m. on October 24. President Reagan, i n a l e t t e r dated October 24, wrote to the Speakers of the House and Senate that the object ives of the United States were: (1) to j o i n the OECS c o l l e c t i v e s ecur i ty forces in a s s i s t i n g the r e s t o r a t i o n of condit ions of law and order; and (2) to f a c i l i t a t e the evacuation of US c i t i z e n s 1 2 5 . 1 2 2Lewis and Mathews, supra note 97, at 21. Statement by Secretary Shul tz . 1 2 3 Motley, supra note 102, at 73. 1 2 4Lewis and Mathews, supra note 97, at 21. Again, quote from Secretary Shul tz . I 2 5 Motley, supra note 102, at 70. 67 I t should be pointed out that no reference was made to the request made by Governor General Scoon; nor was any reference made to Soviet or Cuban involvement i n the c r i s i s . These points w i l l be of s i g n i f i c a n c e i n l a t e r sections. After informing the B r i t i s h Government and the congressional leadership that immediate m i l i t a r y action was necessary, Reagan ordered US p a r t i c i p a t i o n i n the operation to proceed. Concern for the safety of the Americans and for the success of the operation caused the US to r e f r a i n from informing the OAS, the UN, and European a l l i e s of the decision to take action. Also, the decision was hidden from Cuba and the Soviet Union u n t i l the morning of October 25 so that they could not i n t e r f e r e with the success of the operation 1 2 6. On October 25, at about 5:00 a.m. Eastern Daylight Time, approximately 1,900 US Army and US Marine Corps personnel began landing i n Grenada. They were supported by elements of the US Navy and the US A i r Force. Member states of the OECS, along with Jamaica and Barbados, provided approximately 300 personnel 1 2 7. The next day, evacuation of the Americans began. During the h o s t i l i t i e s , 599 Americans were evacuated. C i t i z e n s of Canada, the United Kingdom, East Germany, and other nations were also v o l u n t a r i l y evacuated on o f f i c i a l US a i r c r a f t 1 2 8 . 1 2 6Ibid, at 71. 1 2 7Ronald Reagan, "Letter to the Congress" (Dec. 1983) 83 Dep't St. B u l l . 68 at 69. 1 2 8Motley, supra note 102, at 72. 68 On the morning of October 25, a f t e r US forces had a c t u a l l y landed i n Grenada, the President announced, i n a news conference, that action had been taken. He stated that there were three reasons for ordering t h i s "decisive action": F i r s t , and of overriding importance, to protect innocent l i v e s , including up to a thousand Americans, whose personal safety i s , of course, my paramount concern. Second, to f o r e s t a l l further chaos. And t h i r d , to a s s i s t i n the restoration of conditions of law and order and of governmental i n s t i t u t i o n s to the islan d of Grenada ... m Eugenia Charles, Prime Minister of Dominica and Chairperson of the OECS, was s e c r e t l y flown i n a US government plane to Washington the day before so that she could make an appearance alongside Reagan at the announcement of the invasion 1 3 0. Viewed as a hard-hitting, uncompromising anti-communist, she was a great success. In fact, when she was asked i f she had any information that the Soviets and the Cubans were behind the takeover i n Grenada, she answered that i n the days before the revolutionary council took power, there was "obviously a conduit" of movements "between the Soviet Embassies and known a c t i v i s t s and the a c t i v i s t s ' return to Grenada" 1 3 1. In short, she answered "yes". In an afternoon new conference, held by Secretary Shultz, the issue of Soviet and Cuban involvement i n Grenada was raised , 2 9Ronald Reagan, "President's Remarks, Oct. 25, 1983" (Dec. 1983) 83 Dep't St. B u l l . 67. 1 3 0Adkin, supra note 100, at 113. 1 3 1"Chronology", supra note 98, at 88. 69 again. Shultz said that although the US had no d i r e c t information on whether or not the Soviets or Cubans were involved i n any way i n the overthrow of the Bishop government, the OECS states " f e e l that such i s the case". He emphasized, however, that US action was not based on t h i s " f e e l i n g " 1 3 2 . Shultz was also asked about the United Kingdom recommendation that the US should not proceed with taking m i l i t a r y action. Mrs. Thatcher had said i n Parliament that her government advised against the US decision and could not support i t . Secretary Shultz answered by reminding the news reporters that Grenada i s no longer a B r i t i s h colony, and can make decisions independently. The US was asked to help, and because "each state has to take i t s own decision", the President made one for the United States 1 3 3. Democratic leaders i n Congress, on October 26, held that the Reagan Administration had not complied with the "War Powers Resolution" i n i t s invasion of Grenada 1 3 4. Under the measure, the President would have to withdraw US troops within s i x t y days unless he could obtain permission from Congress to keep them there longer. Since i t was not Reagan's plan to keep the troops there that long, the objection by the Democrats caused him l i t t l e concern. As a matter of fact, that same day, hundreds of 1 3 2Lewis and Mathews, supra note 97, at 30. 1 3 3"Secretary Shultz's News Conference" (Dec. 1983) 83 Dep't St. B u l l . 69 at 71. 1 3 4"Chronology", supra note 98, at 88. paratroopers were flown to Grenada to bolster the force already there. By October 28, Admiral Wesley L. McDonald (the commander of US forces i n Grenada) said that there were about 6,000 US troops on the i s l a n d 1 3 5 . The Governor General broadcast a radio message to the population of the island, on October 28, reassuring them that the c r i s i s was almost over and noting that: The people of Grenada ... have welcomed the presence of the troops [of the US/Caribbean security force] as a p o s i t i v e and decisive step forward i n the restoration not only of peace and order but also of f u l l sovereignty 1 3 6. On the same day, a United Nations Security Council resolution, by a vote of 11-1 (US veto) with three abstentions (Togo, Zaire, and the U.K.), deeply deplored the armed intervention into Grenada which i t c a l l e d "a flagrant v i o l a t i o n of international law and of the independence , sovereignty and t e r r i t o r i a l i n t e g r i t y " of Grenada. I t also c a l l e d for the immediate cessation of the intervention and withdrawal of the foreign troops 1 3 7. F i n a l l y , on November 2, the armed c o n f l i c t came to an end. According to Motley, 45 Grenadans were k i l l e d , and 337 were wounded. Furthermore, 18 US s o l d i e r s were k i l l e d i n action, and 116 were wounded. Since the resistance was led by Cuban m i l i t a r y and construction personnel, of the approximately 800 1 3 5Ibid, at 89. 1 3 6Motley, supra note 102, at 72. 1 3 7"Chronology", supra note 98, at 89. Cubans i n Grenada, 24 were k i l l e d and 59 were injured 'Motley, supra note 102, at 70. 7 2 B . N I C A R A G U A ; T h e U n i t e d S t a t e s i n t e r v e n t i o n i n N i c a r a g u a h a s a m u c h m o r e c o m p l i c a t e d h i s t o r y t h a n t h a t o f G r e n a d a . T h e " i n t e r v e n t i o n " w a s b e g u n b y t h e C a r t e r A d m i n i s t r a t i o n a n d l a s t e d i n t o R e a g a n ' s s e c o n d t e r m i n o f f i c e . A s w a s p r e v i o u s l y m e n t i o n e d , t h e p e r i o d t h a t i s o f d i r e c t c o n c e r n t o t h i s s t u d y i s 1 9 8 1 t o 1 9 8 4 . F i r s t , h o w e v e r , a c o n c i s e l o o k a t t h e e v e n t s p r i o r t o R e a g a n ' s i n a u g u r a t i o n a r e r e q u i r e d . T h e S a n d i n i s t a F r o n t f o r N a t i o n a l L i b e r a t i o n ( F S L N ) w a s f o r m e d i n 1 9 6 1 b y s e v e r a l y o u n g M a r x i s t s w h o w a n t e d t o o v e r t h r o w t h e S o m o z a g o v e r n m e n t . I n t h e 1 9 6 0 * s , t h e i r g u e r r i l l a a c t i v i t i e s w e r e r e l a t i v e l y u n s u c c e s s f u l ; i n t h e 1 9 7 0 ' s , h o w e v e r , t h e y g a i n e d p o p u l a r i t y a n d s u p p o r t a s S o m o z a ' s r u l e b e c a m e m o r e a b u s i v e a n d c o r r u p t . F i n a l l y , a f t e r a n e i g h t e e n -m o n t h w a r , w h i c h c o s t N i c a r a g u a a r o u n d 5 0 , 0 0 0 l i v e s 1 3 9 , S o m o z a ' s a r m y w a s d e f e a t e d a n d t h e F S L N c a m e t o p o w e r i n 1 9 7 9 . D u r i n g t h e f i r s t y e a r a f t e r t h e r e v o l u t i o n , J i m m y C a r t e r w a s t h e P r e s i d e n t o f t h e U n i t e d S t a t e s a n d a l t h o u g h h e w a s n o t p l e a s e d w i t h t h e S a n d i n i s t a v i c t o r y , h e h a d d e c i d e d n o t t o r a i s e t h e i s s u e p u b l i c l y . H e o f f e r e d e c o n o m i c a i d w i t h s t r i n g s a t t a c h e d i n t h e h o p e o f p r e s s u r i n g t h e S a n d i n i s t a s a w a y f r o m C u b a a n d t h e 1 3 9 T . W . W a l k e r , e d . , Reagan versus the Sandinistas: The Undeclared War on Nicaragua ( U . S . A . : W e s t v i e w P r e s s , 1 9 8 7 ) a t 3 . Soviet Union and towards the US. In his l a s t week in o f f i c e , however, Carter suspended a l l US economic aid to the Sandinistas and sent $10 m i l l i o n i n arms and equipment, as well as nineteen m i l i t a r y technicians, to E l Salvador 1 4 0. Because United States p o l i c y i n Central America was not a very controversial issue at that time, Carter was able to do t h i s without much p u b l i c i t y . In f a l l 1980, the e l e c t i o n of Ronald Reagan as President s i g n a l l e d a new phase. Ten days before Reagan's inauguration, l e f t i s t g u e r r i l l a s , hoping to duplicate the success of Sandinistas i n Nicaragua, launched what they c a l l e d "the f i n a l offensive" i n E l Salvador. The Farabundo Marti National Liberation Front (FMLN) was hoping that i t s offensive would succeed, and President-elect Reagan would be presented with a fait accompli. By January 12, 1981, the Salvadoran government pronounced the offensive a clear f a i l u r e 1 4 1 . As a r e s u l t of t h i s FMLN f a i l u r e , Central America became a "front-burner" issue in American foreign p o l i c y just as Reagan came into o f f i c e . Even though the Carter Administration had expended $1 m i l l i o n i n covert funds to organize and bolster i n t e r n a l opposition groups i n Nicaragua, these e f f o r t s to manipulate Nicaragua were considered i n s u f f i c i e n t . The new administration was going to support a much harder stand against the Sandinistas — whose 140Roy Gutman, Banana Diplomacy: The Making of American Foreign Policy in Nicaragua, 1981-1987 (U.S.A.: Simon and Shuster, 1988) at 22-23. 141H. Sklar, Washington's War on Nicaragua (Boston: South End Press, 1988) at 53. very existence was perceived as a threat to US security and hegemony i n the Western Hemisphere1 4 2. One of the hardliners of the Reagan Administration was Secretary of State Alexander Haig who, i n early meetings of the National Security Council, c a l l e d for "a determined show of American w i l l and power" and "a high l e v e l of i n t e n s i t y at the beginning" 1 4 3. Haig ordered then-State Department Adviser Robert McFarlane to draw up an options paper, e n t i t l e d "Taking the War to Nicaragua", that would weigh the p o s s i b i l i t y of the open use of force against Cuban ships and planes, as well as a naval blockade against Nicaragua 1 4 4. He hoped that by presenting t h i s paper his case that the US needed to go to the source of the revolution i n Central America ( i . e . , Nicaragua) would be bolstered. Most of the President's advisers (including Vice President George Bush, Secretary of Defence Caspar Weinberger, and the J o i n t Chiefs of Staff) vetoed Haig's c a l l to war145. They believed that any overt use of force w i l l conjure up images of "another Vietnam" i n the mind of the public, d i v e r t resources from more important b a t t l e f i e l d s i n Europe and the Middle East, and jeopardize the Administration's e f f o r t s to garner 1 4 2Walker, supra note 139, at 21. 1 4 3Quote from Haig's memoirs Caveat, p. 129. Cited i n Ibid, at 22. 1 4 4Ibid. 1 4 5Ibid. c o n g r e s s i o n a l s u p p o r t f o r i t s d o m e s t i c and f o r e i g n p o l i c y agenda 1 4 6 . I t was a g a i n s t t h i s b a c k d r o p o f t h e " V i e t n a m Syndrome" t h a t t h e CIA o p e r a t i o n s emerged as t h e c e n t r e p i e c e o f a l o w - i n t e n s i t y w a r f a r e s t r a t e g y t h a t i n c o r p o r a t e d economic d e s t a b i l i z a t i o n , p s y c h o l o g i c a l o p e r a t i o n s , and d i p l o m a t i c p r e s s u r e s . A f t e r t e r m i n a t i n g economic a s s i s t a n c e t o N i c a r a g u a , t h e A d m i n i s t r a t i o n began t o a l l o w a n t i - S a n d i n i s t a p a r a m i l i t a r y t r a i n i n g camps t o o p e r a t e o p e n l y i n F l o r i d a , C a l i f o r n i a , and t h e S o u t h w e s t . I n 1981 , a g roup o f C I A - b a c k e d c o u n t e r -r e v o l u t i o n a r i e s emerged i n N i c a r a g u a as " t h e c o n t r a s " . P a r a l l e l t o t h e o p e r a t i o n s o f t h e C I A , t h e A d m i n i s t r a t i o n was f o l l o w i n g a p o l i c y o f i m p o s i n g economic s a n c t i o n s a g a i n s t N i c a r a g u a . I n F e b r u a r y 1981 , a $ 9 . 6 m i l l i o n s a l e o f wheat was suspended u n t i l M a r c h , when i t was c o m p l e t e l y c a n c e l l e d 1 4 7 . F u r t h e r m o r e , i n M a r c h , t h e Reagan A d m i n i s t r a t i o n b l o c k e d t h e r e m a i n i n g $15 m i l l i o n o f t h e $75 m i l l i o n i n f o r e i g n a i d c r e d i t s e x t e n d e d t o N i c a r a g u a by t h e p r e v i o u s a d m i n i s t r a t i o n 1 4 8 . On F e b r u a r y 2 3 , t h e S t a t e Depar tment r e l e a s e d a W h i t e P a p e r e n t i t l e d Communist Interference in El Salvador149. I n t h i s 1 4 6 P r e s i d e n t Reagan , however , d i d a c t on one o f H a i g ' s r ecommenda t ions a n d , two days a f t e r t a k i n g o f f i c e , he f r o z e economic a i d t o N i c a r a g u a , and t e r m i n a t e d a l l f i n a n c i a l a i d and a c c e s s t o l o a n s f rom t h e U . S . See S k l a r , s u p r a n o t e 1 4 1 , a t 6 5 . 1 4 7 I b i d . 1 4 8 E . B . B u r n s , At War in Nicaragua: The Reagan Doctrine and the P o l i t i c s of Nostalgia ( N . Y . : H a r p e r and Row, 1987) a t 3 0 . 1 4 9 S k l a r , s u p r a n o t e 141 , a t 68 . paper, the Administration set the agenda by placing both E l Salvador and Nicaragua within a cold war context, and by ensuring that mainstream debate would be r e s t r i c t e d to the means to be used i n achieving the goal of stopping "communist aggression" before i t completely got out of c o n t r o l . Two weeks la t e r , on March 9, Reagan authorized covert m i l i t a r y actions against the government of Nicaragua that were supposedly designed to i n t e r d i c t Nicaraguan supplies to E l Salvador 1 5 0. Reagan submitted h i s f i r s t " Presidential Finding on Central America" to Congress and obtained an authorization to provide $19.5 m i l l i o n for the CIA to expand i t s operations 1 5 1. At the same time, the Reagan Administration cut o f f a l l aid to Nicaragua, including food shipments. This was the o f f i c i a l s t a r t of "The Project", as the covert war was known within the i n t e l l i g e n c e community. During the spring of 1981, the contras began to receive t r a i n i n g at camps run by Cuban ex i l e s i n F l o r i d a , as well as Honduras, and other countries. The media was a l e r t e d of t h i s a c t i v i t y i n March and the f i r s t accounts of contra t r a i n i n g i n the US were published 1 5 2. The p u b l i c i t y , however, did not 1 5 0Marlene Dixon and S. Jonas, eds, Nicaragua Under Siege (U.S.A.: Synthesis Publications, 1984) at 117. 1 5 1Walker, supra note 139, at 23. , 5 2Sklar, supra note 141, at 75. I t should be noted, however, that the f i r s t extensive account of US p a r t i c i p a t i o n i n the war against Nicaragua was not published u n t i l November 8, 1982 when Newsweek carr i e d a special report "America's Secret War — Target Nicaragua". cause the Administration any worry. In May, the CIA provided $50,000 to Argentine m i l i t a r y i n t e l l i g e n c e o f f i c i a l s to be funnelled to the i n c i p i e n t contras as an incentive to unite under one anti-Sandinista banner. By t h i s time, even though contra leaders refused to comment on whether or not they were receiving CIA and/or Pentagon support, Washington was openly sanctioning the existence of paramilitary t r a i n i n g camps for Nicaraguan e x i l e s i n the United States 1 5 3. In August 1981, the CIA began to draw up contingency plans for clandestine operations in Washington, D.C. The Director of the CIA, William Casey, appointed Duane Clarridge to oversee CIA operations against the Sandinistas. Clarridge joined Assistant Secretary for Inter-American A f f a i r s Thomas Enders, General Paul Gorman, and Lt. Colonel Oliver North to form a Restricted Inter-agency Group, also known as the "Core Group" 1 5 4. Enders went to Managua to meet with Junta Co-Ordinator Daniel Ortega and other o f f i c i a l s . The major issue in these meetings was Nicaragua's alleged export of revolution. The Nicaraguans were not able to convince Enders that they had no such plans. Despite the f a c t that they had closed down a clandestine FMLN radio s t a t i o n and c u r t a i l e d the shipment of weapons to E l Salvador, the US terminated a l l aid to Nicaragua 1 5 5. In November, the Core Group presented an option paper to 1 5 3Walker, supra note 139, at 24. 1 5 4Ibid. I 5 5Sklar, supra note 141, at 91. 78 the National Security Council to organize a "500-man commando force" which was approved on December 1 by President Reagan156. At the same time, Reagan signed National Security Decision Directive 17 on November 23, authorizing the CIA to spend $19.8 m i l l i o n to create an e x i l e paramilitary force i n Honduras to harass Nicaragua 1 5 7. The 500-person paramilitary force, combined with a 1,000-man force being trained i n Argentina, was supposed to bring about widespread opposition to the Sandinista government. The force was meant to be r e s t r i c t e d i n numbers, was to be comprised of Cuban and Nicaraguan e x i l e s , and the primary targets were supposed to be Cuban support structures i n Nicaragua and arms supply l i n e s to Salvadoran g u e r r i l l a s 1 5 8 . After Reagan's secret war was well under way, Casey reported to the House and Senate Permanent Select Committees, i n December, that there was, i n fact, a covert war going on. By spring 1982, the covert war was successfully under way and the Sandinistas were under increasing pressure 1 5 9. Between A p r i l and June, there were 106 contra attacks on Nicaragua, 1 5 6Dixon, supra note 150, at 117. Compare with Walker, supra note 139, at 24: Reagan signed National Security Decision Directive 17 on November 23. 1 5 7Walker, supra note 139, at 6. Also see Sklar, supra note 141, at 100. According to the Washington Post, the figure was exactly $19,950,000. See Washington Post, Mar. 10, 1985, at A l , c o l . 5. 158The CIA proposals are c i t e d i n Washington Post. May 8, 1983, at A10, col.3. 1 5 9See the NSC document, "United States Policy i n Central America and Cuba Through FY 84, Summary Paper", reprinted i n New  York Times. Apr 7, 1983, at A16, c o l . 1. including sabotages of economic targets 1 6 0. The economic war against Nicaragua was proceeding as planned, as well . The US by using i t s central position in the World Bank and Inter-American Development Bank, had managed to cut off the flow of badly needed mult i lateral loans to Nicaragua 1 6 1. The only loans that were made to Nicaragua were private sector loans which were o f f i c i a l l y out of the reach of the government. In August, however, the Nicaraguan government rejected the continuing private sector aid because the agreements had p o l i t i c a l motivations designed to destabilize the country 1 6 2. At the end of the year, in December, the CIA informed Congress that the 500-man operation, or ig inal ly authorized in the previous year, had grown to a force of 4, 000163. As a result , an additional $30 mil l ion was allocated to the program164. The contras had begun daily raids into Nicaraguan terr i tory from their bases in Honduras. Obviously, the Honduran government was closely co-operating with the CIA. The raids also proved that the goal of the contras was not simply to stop the shipment of arms to El Salvador. Their position was becoming more and more defensive, and i t was becoming clear that their main objective was to overthrow the Sandinista government. 1 6 0Dixon, supra note 150, at 117. 1 6 IWalker, supra note 139, at 6. 1 6 2 Sklar, supra note 141, at 66. 163Washinaton Post. May 8, 1983, at A l l , co l . 1. 1 6 4 Ibid. 80 The US public did not approve of the obvious r o l e and support of the CIA i n t h i s operation. The r e s u l t was the passage by Congress of the Boland-Zoblocki b i l l of December 8 adopted (by a vote of 411 to n i l ) i n the House and l a t e r incorporated by the J o i n t Conference Committee. This b i l l prohibited the US from giving aid to paramilitary groups fo r the purposes of overthrowing the Nicaraguan government or promoting a war between Nicaragua and Honduras 1 6 5. Nevertheless, covert US aid to the counter-revolutionaries continued. On July 19, 1983, on the anniversary of the Nicaraguan Revolution, Daniel Ortega announced a six-point peace proposal 1 6 6. The FSLN proposed that the heads of the Central American states s t a r t the immediate discussion of the following points: 1) A commitment to end any p r e v a i l i n g s i t u a t i o n of war through the immediate signing of a non-aggression pact between Nicaragua and Honduras; 2) The absolute end to a l l supplies of weapons by any country to the forces i n c o n f l i c t i n E l Salvador so that the people may resolve t h e i r problem without foreign interference; 3) The absolute end to a l l m i l i t a r y support, i n the form of arms supplies, t r a i n i n g , use of t e r r i t o r y to launch attacks, or any other form of aggression, to forces adverse to any of the Central American governments; 4) Commitments to ensure absolute respect for the Central American people's self-determination, and non-interference i n the i n t e r n a l a f f a i r s of each country; 5) The end to aggression and economic discrimination against any country i n Central America; and 6) No i n s t a l l a t i o n of foreign m i l i t a r y bases on Central American t e r r i t o r y , and the suspension of New York Times. Dec 23, 1982, at A l , c o l . 3. 'Dixon, supra note 150, at 102. 81 m i l i t a r y exercises i n the Central American region which include the p a r t i c i p a t i o n of foreign armies 1 6 7. The United Nations was charged with supervising and guaranteeing compliance with the proposals set forth i n the plan. The Reagan Administration promptly rejected the peace proposal because, according to Motley, i t was "one-sided" 1 6 8. The Reagan Administration wanted a plan which dealt with democratization, Soviet and Cuban aid to Nicaragua, and foreign m i l i t a r y advisers i n Nicaragua. Although Ortega's proposal e x p l i c i t l y stated that there would be no foreign m i l i t a r y bases on any Central American country, t h i s was not what Reagan wanted. A general ban l i k e that would have possibly prevented the United States from i n s t a l l i n g m i l i t a r y bases i n the region in the future. By now, the CIA mercenary force had grown to 10,000 men169. In September, Reagan authorized a further expansion to 12,000 - 15,000 men, and a s h i f t i n t a c t i c s to emphasize destruction of v i t a l economic targets 1 7 0. An additional $24 m i l l i o n was appropriated to finance these a c t i v i t i e s 1 7 1 . On September 27, i n a speech to the 38th General Assembly of the United Nations, Ortega t r i e d , once again, to convince the 1 6 7Ibid. 1 6 8Langhorne A. Motley, "Is Peace Possible i n Central America?" (March 1984) 84 Dep't St. B u l l . 67. 1 6 9Washinqton Post. July 14, 1983, at A l , c o l . 6. 1 7 0Wall Street Journal, March 6, 1985, at A20, c o l . 1. 171Time, A p r i l 23, 1984, at 19. 82 United States that i t did not have any expansionary ambitions 1 7 2. As a matter of p r i n c i p l e , Nicaragua would never attack another country. He acknowledged that US m i l i t a r y presence i n the region had been increasing — openly i n E l Salvador and Honduras, and covertly i n Costa Rica. Ortega concluded by reminding the United Nations that Nicaragua had a "right to choose i t s own i n t e r n a l system, i t s own brand of democracy", and t h i s i s "a r i g h t of [the Nicaraguan] people that cannot be negotiated, cannot be discussed, and must be respected" 1 7 3. The United States — as was i t s usual practice by t h i s time — instead of l i s t e n i n g to what Ortega was saying, c r i t i c i z e d him for using the United Nations forum for propaganda purposes. Not only did the US r e j e c t Ortega's attempts at negotiations, but the following month, i n the wake of the US invasion of Grenada, the Reagan Administration gave an e x p l i c i t warning to Nicaragua. A State Department o f f i c i a l was quoted i n the New York Times for saying: " i f [Nicaragua] had any doubts about our willingness to use force under c e r t a i n circumstances, those doubts should be erased" 1 7 4. Shortly thereafter, the CIA increased the pressure on the Sandinista government. In January 1984, Washington began mining Nicaragua's harbours — an action which happens to be an act of war under 1 7 2Dixon, supra note 150, at 104. 1 7 3Ibid, at 109. 174New York Times. Nov. 7, 1983, at A l , c o l 2. 83 international law. Reagan approved the mining on the recommendation of McFarlane, and was briefed on and approved even the minor operational d e t a i l s . Mines were deployed i n the ports of Corinto, Puerto Sandino, and E l B l u f f from January through March 1984175. A variety of mines were used, most reportedly products of the CIA weapons Group i n Langley, V i r g i n i a , assisted by the Mines Divi s i o n of the US Navy Surface Weapons Centre i n S i l v e r Spring, Maryland. CIA weapons s p e c i a l i s t s i n Honduras did the f i n a l assembly 1 7 6. The mines were deployed i n Nicaragua's harbours from a mother ship positioned o f f the coast of Nicaragua, by US m i l i t a r y and i n t e l l i g e n c e personnel, including Latin American commandos from t h i r d countries hired and trained by the CIA 1 7 7. The Wall Street Journal reported that between February 2 5 and March 28, f i v e i n t ernational ships h i t mines, with serious damage to a Dutch dredger and a Cuban fr e i g h t e r ; also, at le a s t four small Nicaraguan pa t r o l boats were sunk by the mines 1 7 8. The Administration, however, j u s t i f i e d the mining as an act of self-defence. The argument was that since Nicaragua was responsible for some form of aggression, namely supporting the g u e r r i l l a s i n E l Salvador, then mining i t s ports was an act of 1 7 5Sklar, supra note 141, at 165. 1 7 6Ibid. Also see New York Times. June 1, 1984, at A4, c o l . 3. 177New York Times, A p r i l 16, 1984, at A4, c o l . 5. 1 7 8Wall Street Journal, March 6, 1985, at A20, c o l . 1. 84 self-defence, just l i k e any other use of force 1 7 9. Nicaragua did not r e t a l i a t e ; instead, i t took i t s case to the United Nations. On A p r i l 4, 1984, the Security Council drafted a resolution condemning the mining of the ports of Nicaragua, affirming the ri g h t of free navigation and commerce in international waters, and c a l l i n g for a l l states to r e f r a i n from any further h o s t i l e action. The vote on the re s o l u t i o n was thirteen to one (the US vetoed), with Great B r i t a i n abstaining 1 8 0. Nicaragua then decided to take i t s case to the ICJ. By the week-end of A p r i l 8, the news leaked out that Nicaragua had hired a well-known American international lawyer, Abe Chayes, along with Ian Brownlie, a well-respected professor of i n t e r n a t i o n a l law at Oxford University, to f i l e proceedings against the US. Immediately aft e r receiving t h i s news, the Reagan Administration announced that i t was withdrawing from the j u r i s d i c t i o n of the ICJ, for a period of two years, any disputes concerning the US and Central America. The announcement also stated that the withdrawal was e f f e c t i v e as of A p r i l 6, 1984181. The following day, as the US had expected, Nicaragua f i l e d the Case Concerning Military and Paramilitary A c t i v i t i e s In and Against Nicaragua (Nicar. v. US) at The Hague, asking the Court 1 7 9Sklar, supra note 141, at 166. 1 8 0Robert A. Friedlander, "Mr. Casey's >Covert' War: The United States, Nicaragua, and International Law" (Winter 1985) 10:2 U. Dayton L. Rev. 265 at 284. 181New York Times. A p r i l 9, 1984, at A l , c o l . 2. 85 to declare that the US actions had caused great loss of l i f e and property i n Nicaragua, had e s s e n t i a l l y been aimed at overthrowing the government, and were contrary to inte r n a t i o n a l law 1 8 2. The Nicar. v. US case covered such actions as the pre s i d e n t i a l authorization of the covert a c t i v i t i e s , US m i l i t a r y maneuvers i n Honduras aimed at intimidating Nicaragua, and mining the harbours and other economic targets 1 8 3. Nicaragua challenged US claims of self-defence and charged that US actions v i o l a t e d the charters of the U.N. and the O.A.S. as well the US Constitution. A r t i c l e 15 of the O.A.S. Charter, for example, states that: No state or group of states has the r i g h t to intervene, d i r e c t l y or i n d i r e c t l y , for any reason whatsoever, i n the i n t e r n a l or external a f f a i r s of any other state. The foregoing p r i n c i p l e p r o h i b i t s not only armed forces but also any other form of interference ... The U.N. Charter, of course, contains the same basic p r i n c i p l e of non-intervention. The US withdrawal from the Court's j u r i s d i c t i o n was widely denounced as i l l e g a l and unacceptable. The US had accepted the Court's compulsory j u r i s d i c t i o n i n 1946, and i t had agreed to give a six-month notice i f j u r i s d i c t i o n a l recognition were to be 182The Case Concerning Military and Paramilitary A c t i v i t i e s in and Against Nicaragua (Nicar. v. U.S.), Provisional Measures, Order of May 10, 1984, I.C.J. Reports 1984, p. 1. 1 8 3Sklar, supra note 141, at 169. 86 withdrawn 1 8 4. The purpose of t h i s proviso was s p e c i f i c a l l y to prevent the US from r e j e c t i n g i t s obligation to the Court i n the face of an unpleasant proceeding. The withdrawal, assuming i t were otherwise v a l i d , would have been e f f e c t i v e s i x months a f t e r i s tender. In other words, the withdrawal could not immediately keep the Court from hearing the case. The US decision, furthermore, was i r r a t i o n a l since i n 1980 the US had gone to the Court with a case against Iran for holding American hostages. When Iran refused to accept the Court's j u r i s d i c t i o n , and the US received a favourable r u l i n g , i t i n s i s t e d that the Court's decision was leg a l and binding. When Nicaragua went to Court, however, Ambassador Kirkpatrick went so fa r as c a l l i n g the Court "a semilegal, s e m i j u r i d i c a l , s e m i p o l i t i c a l body, which nations sometime accept and sometimes don't" 1 8 5. The Court's decision, announced on May 10, did not reach the merits of the case. The Court issued a p r o v i s i o n a l r e s t r a i n i n g order which granted protection to Nicaragua. I t was held by a vote of 14 to 1 that the parties i n the dispute must r e f r a i n from any m i l i t a r y or paramilitary a c t i v i t i e s that are prohibited by international law 186, and unanimously determined that no action of any kind be taken that could aggravate or 1 8 4Ibid, at 168. 1 8 5Ibid, at 170. 186The US judge cast the only negative vote. See supra note. 182, at 29. 87 widen the dispute 1 8 7. By another unanimous vote, the Court mandated that no further action be taken by either party that might prejudice the ri g h t s of the other party u n t i l the Court had a chance to rule on the substantive issues of the case 1 8 8. The US was ordered, i n t e r a l i a , to immediately stop any action r e s t r i c t i n g , blocking or endangering access to or from Nicaraguan ports, and, i n p a r t i c u l a r , the laying of mines 1 8 9. In fact, the US only stopped the mining. After the announcement of t h i s decision, the US presented two fresh new arguments against the Court's j u r i s d i c t i o n 1 9 0 . F i r s t , the US argued that, since i t had already suspended i t s consent to the compulsory j u r i s d i c t i o n of the Court, there was no need to carry the case any further. The second argument that was presented by the US was highly technical, and i t was cast aside almost immediately. The US claimed that Nicaragua had no ri g h t to plead before the ICJ because i t never f i l e d instruments of r a t i f i c a t i o n to o f f i c i a l l y accept the Court's j u r i s d i c t i o n . The United States l o s t on both contentions 1 9 1. By a vote of 15 to 1 (again, with the negative vote of the US judge) the Court 1 8 7Ibid, at 22. 1 8 8Ibid. 1 8 9Ibid. 1 9 0In fact, a t h i r d argument involving the inherent r i g h t of self-defence was also presented. This argument w i l l be discussed i n more d e t a i l in the l a s t chapter. mNicar. v. U.S., J u r i s d i c t i o n and Ad m i s s i b i l i t y , Judgment, of Nov. 26, 1984, p. 1 at 11-15. 88 decided on November 26, 1984 that i t did have j u r i s d i c t i o n to entertain the case brought to i t by Nicaragua 1 9 2. On June 1, 1984, while on his f l i g h t home from President Jose Napoleon Duarte's inauguration i n E l Salvador, Secretary Shultz made a sudden v i s i t to Managua. There, he met with the top leaders of the Sandinista junta, including Ortega, at the air p o r t 1 9 3 . Apparently, Reagan had asked the Secretary of State to make the stop i n order to explore the p o s s i b i l i t y of improving r e l a t i o n s between the two countries 1 9 4. During the meeting, Shultz made the following demands: an end to Nicaraguan support for rebel g u e r r i l l a groups i n Central America; a reduction of m i l i t a r y strength to numbers that would restore a m i l i t a r y balance between Nicaragua and i t s neighbours; and f u l f i l m e n t of the o r i g i n a l Sandinista commitment "to support democratic pluralism" 1 9 5. Upon reaching Washington, however, Shultz r e i t e r a t e d the Reagan Administration's intention to request an addit i o n a l $21 m i l l i o n from Congress to continue aid for the contras (which Congress denied the next month)1 9 6. At the same time, i n c i d e n t a l l y , t a l k s continued with Nicaragua on an ambassadorial 1 9 2Ibid, at 54. 1 9 3Friedlander, supra note 180, at 278. 1 9 4Ibid, at 279. 195James H. Michel, "U.S. Relations With Honduras and Nicaragua" (June 1984) 84 Dep't St. B u l l . 81 at 84. 1 9 6Friedlander, supra note 180, at 279. 89 l e v e l . I t d i d n o t t a k e l o n g f o r t h e US t o s t a r t r a i s i n g t h e s p e c t r e o f a N i c a r a g u a n M a r x i s t d i c t a t o r s h i p a g a i n , and c l a i m once more t o have e v i d e n c e o f c l a n d e s t i n e N i c a r a g u a n m i l i t a r y a s s i s t a n c e t o g u e r r i l l a movements i n C e n t r a l A m e r i c a . I n O c t o b e r , a manual p u b l i s h e d by t h e CIA i n t h e name o f t h e c o n t r a s began t o c i r c u l a t e i n t h e U S . I t was a 90-page S p a n i s h - l a n g u a g e b o o k l e t , e n t i t l e d Psychological Operations in Guerrilla Warfare. The manual c o n t a i n e d a s e c t i o n , " S e l e c t i v e Use o f V i o l e n c e " , t h a t s u g g e s t e d , among o t h e r t h i n g s , h i r i n g p r o f e s s i o n a l c r i m i n a l s t o c a r r y o u t " s e l e c t i v e j o b s " and a d v i s e d a r r a n g i n g f o r t h e d e a t h o f a c o n t r a s u p p o r t e r t o c r e a t e a " m a r t y r " f o r t h e c a u s e 1 9 7 . C o n g r e s s was a p p a r e n t l y o u t r a g e d t h a t t h e CIA had behaved i n t h i s manner . F u n d i n g t o t h e c o n t r a s f rom any agency i n v o l v e d i n " i n t e l l i g e n c e a c t i v i t i e s " was c u t -o f f 1 9 8 . From t h e n o n , t h e P r e s i d e n t had t o o p e n l y a s k f o r money t o arm a p e o p l e t o f i g h t a government w i t h w h i c h , i n c i d e n t a l l y , t h e US s t i l l m a i n t a i n e d d i p l o m a t i c r e l a t i o n s . The s i t u a t i o n r a i s e d abundant m o r a l and l e g a l q u e s t i o n s . I n t h e same month , t h e U n i t e d S t a t e s p r e s e n t e d s e v e r a l a rguments i n The Hague t h a t t h e W o r l d C o u r t d i d n o t have j u r i s d i c t i o n t o d e c i d e on N i c a r a g u a ' s c l a i m s . A l l o f t h e s e s u b m i s s i o n s were r e j e c t e d by t h e C o u r t on November 26 when t h e C o u r t d e c i d e d t h a t i t d i d , i n f a c t , have j u r i s d i c t i o n and t h a t 1 9 7 B u r n s , s u p r a n o t e 148, a t 58 . 1 9 8 I b i d , a t 5 9 . N o r t h , a W h i t e House L i a i s o n t o t h e N . S . C . , t o o k c h a r g e o f c o o r d i n a t i n g t h e c o n t r a s , g i v i n g a d v i c e and h e l p i n g them t o r a i s e more t h a n $20 m i l l i o n i n p r i v a t e f u n d s . 90 the provisional measures issued i n May should remain i n ef f e c t 1 9 9 . The US State Department promptly responded by withdrawing from the proceedings 2 0 0. The US would not pa r t i c i p a t e i n the case because when i t accepted the Court's compulsory j u r i s d i c t i o n i n 1946 i t never "conceived of such a ro l e for the Court i n such controversies". The State Department also stated that much of the evidence that would es t a b l i s h Nicaragua's f a u l t i s of a highly se n s i t i v e i n t e l l i g e n c e character. The US could not r i s k i t s national security by presenting such material "before a Court that includes judges from Warsaw Pact nations" 2 0 1. The US did, however, continue i t s covert war against Nicaragua. 199 Nicar. v. U.S., supra note 191. 200"U.S. Withdrawal from the Proceedings I n i t i a t e d by Nicaragua i n the I.C.J." (March 85) 85 Dep't St. B u l l . 64. Ibid. 91 VI. ANALYSIS The decisions of the Reagan Administration to intervene i n the domestic a f f a i r s of Nicaragua and Grenada have had numerous le g a l implications. In many ways, US action i n both cases was seen by the international community as contradicting w e l l -established norms and p r i n c i p l e s of international law. Every state possesses the inherent l e g a l r i g h t to choose any form of governmental p o l i t i c a l i n s t i t u t i o n i t desires. Moreover, t h i s r i g h t should be available to a l l states, regardless of s i z e or strength, without prejudice and absent any interference from other states. Yet, in Grenada and Nicaragua, the United States acted to r e s t r a i n regimes that i t found i d e o l o g i c a l l y d i s t a s t e f u l . In both cases, the United States claimed that i t had taken action i n self-defence. Grenada, however, was hardly a threat to US security; and the same can be argued for Nicaragua. What the US argued, in fact, was that i t had acted i n "anticipatory" self-defence. The government speculated that Grenada and Nicaragua might someday pose a threat to US security. As was previously mentioned, i t i s very d i f f i c u l t to support such 92 anticipatory self-defence l e g a l l y 2 0 2 . In the following sections, the major le g a l arguments presented by the Reagan Administration i n defence of the decisions to intervene i n Grenada and Nicaragua w i l l be discussed one by one. With respect to Grenada, three major j u s t i f i c a t i o n s were presented. F i r s t , President Reagan stated that h i s main concern was the safety of the US nationals who were l i v i n g i n Grenada. Second, the US had taken c o l l e c t i v e action with the member states of the Organization of Eastern Caribbean States to prevent further chaos. Third, the argument was presented that the Governor General of Grenada had i n v i t e d the US to take action. S i m i l a r l y , the decision to intervene i n Nicaragua was based on the United States' claimed r i g h t of self-defence. This j u s t i f i c a t i o n branched out into two d i f f e r e n t d i r e c t i o n s : F i r s t , the US perceived i t s national security i n t e r e s t s to be threatened; thus, i t acted i n self-defence. Second, the US joined forces with countries neighbouring Nicaragua and acted i n c o l l e c t i v e self-defence. F i n a l l y , the US decision to withdraw from the j u r i s d i c t i o n of the International Court of J u s t i c e (and i t s consequent behaviour i n the Court) has had l e g a l implications which are worthy of mention. The purpose of t h i s section w i l l be to set out, i n d e t a i l , the arguments used by the US; and then, to apply the norms and rules of international law to comment on the v a l i d i t y of each 2 0 2See "Self-Defence" i n Chapter I I I . 93 argument. Needless to say, i f the US j u s t i f i c a t i o n s contradict norms of international law, then the conclusion that should be reached i s that norms of international law and le g a l standards had l i t t l e or no impact on determining US p o l i c y regarding Central America. 94 A. GRENADA; 1. Safety of US Nationals i n Grenada On the morning of October 25, when President Reagan announced that American forces had landed i n Grenada, he gave two basic reasons for his decision 2 0 3 . The f i r s t reason was that the security and the l i v e s of US nationals i n Grenada were in danger. The Administration maintained, throughout the invasion, that humanitarian intervention was the main j u s t i f i c a t i o n for US involvement. There was a great deal of discussion about t h i s issue at the i n i t i a l stages; and i f i t had been used properly, t h i s defence could have p o t e n t i a l l y j u s t i f i e d the invasion to some extent. Reagan, however, was haunted by the fear of another Teheran-type hostage s i t u a t i o n , i n which the US was powerless i n the hands of a group of fanatics. His Administration was not going to get caught — as had Carter's — i n a no-win s i t u a t i o n that would jeopardize American l i v e s and r e s u l t i n a greater loss of prestige. Intervention for humanitarian purposes can be j u s t i f i e d i f the most fundamental human righ t s of a country's nationals are being v i o l a t e d i n another. The ri g h t to l i f e , obviously, f a l l s within t h i s category; but some commentators argue that i f a state's nationals are being tortured, or are taken hostage, then See Reagan, supra note 129. 95 that state i s also j u s t i f i e d i n intervening 2 0 4. The case of the US students i n Grenada, however, was somewhat d i f f e r e n t because they were not being tortured, nor were they taken hostage. If a state i s required to wait u n t i l the fundamental r i g h t s of i t s c i t i z e n s are a c t u a l l y violated, then i t may not be able to a s s i s t them at a l l . The i n a b i l i t y of the US to rescue the hostages i n Iran supports a view of humanitarian intervention which would allow a state to intervene i n the face of "imminent" and "immediate" danger to p o t e n t i a l hostages. The requirement of the immediacy of a threat to human right s should be s a t i s f i e d once a state makes a good f a i t h determination that i t s nationals are i n danger. The facts in Grenada seem to suggest that there was no r e a l threat to the Americans l i v i n g on the isl a n d . The r e a l danger to the students existed during the i n i t i a l phases of the coup, and since Coard and Austin did not threaten the students i n any way then, there was no reason to believe that the students were i n danger. Coard and Austin must have been concerned about the safety of the Americans because they desperately sought to avoid giving the US a pretext to invade. In fact, at one point over the week-end, the RMC became aware that the US was preparing to launch a f u l l - s c a l e m i l i t a r y attack on Grenada. On Monday, October 24, the RMC sent a telex to the US Embassy i n Barbados 2 0 4For example, see Laura Wheeler, "The Grenada Invasion: Expanding the Scope of Humanitarian Intervention" (Summer 1985). 8 B. C. I n t ' l & Comp. L. Rev. 413 at 42 3. 96 urging the US and i t s Caribbean a l l i e s not to invade Grenada. The telex stated, i n pertinent part: We should view any invasion of our country, whether based on the decision of those [Caribbean Community] governments or by that of any other government, as a rude v i o l a t i o n of Grenada's sovereignty and of international law .... Grenada has not and i s not threatening the use of force against any country, and we do not have any such aspirations .... [W]e are prepared to hold discussions with those countries i n order to ensure good r e l a t i o n s and mutual understanding .... We r e i t e r a t e that the l i v e s , well-being and property of every American and other foreign c i t i z e n r e s i d i n g i n Grenada are f u l l y protected and guaranteed by our government. However, any American or foreign c i t i z e n i n our country who desires to leave Grenada for whatever reason can do so ... . 2 0 5 Despite t h i s plea for non-intervention and requesting negotiations, the US led the m i l i t a r y invasion of Grenada the following day. The Reagan Adminstration argued that p o l i t i c a l authority had disintegrated i n Grenada, that further violence would occur, and that the v i o l e n t k i l l i n g s posed a r e a l threat to the Americans on the i s l a n d . President Reagan thought that, despite the reassurances, i t would be very easy for the RMC to change i t s mind and seize hostages. He could not possibly r e l y on the 2 0 5"Special Report: International Law and the United States Action on Grenada" (Spring 1984) 18 I n t ' l Law. 331 at 338-9 (reprinted the text of the telex) . According to a New York  Times report, however, foreigners were refused permission to use the a i r p o r t i n order to leave the island (See New York Times. Oct. 26, 1983, at A l , c o l . 6). Other reports, on the other hand, indicated that foreigners were able to leave the i s l a n d i f they so desired (New York Times, Oct. 28, 1983, at A20, cols 1-2 [witnesses report that at least 4 charter planes were allowed to leave]; New York Times, Oct. 29, 1983, at A7, c o l . 3 [Robert Meyers, former d i r e c t o r of Reagan's Social Security Commission,, l e f t Grenada under normal a i r p o r t procedures]). guarantees of a group of people who had just murdered t h e i r own prime minister along with numerous others, including women and children. Furthermore, the imposition of the shoot-on-sight curfew and the closing of the airports i n Grenada suggested that events were not following a normal course. In fact, the sequence of events bore a bleak resemblance to what had happened i n Iran. If the US government t r u l y believed that i t s nationals were not i n danger and rescuing them was just an excuse, then the invasion cannot be j u s t i f i e d and the argument need not be carri e d any further. I f , on the other hand, the government made a good f a i t h determination that American l i v e s were i n danger, then because of the large number of American nationals i n Grenada, the threat to human righ t s v i o l a t i o n s was substantial. I t may be harder to j u s t i f y an invasion designed to save only a few l i v e s ; i n such a case a smaller operation might be a plausible a l t e r n a t i v e . But, when tr y i n g to save over 1,000 l i v e s , nothing short of an invasion may prove successful. Two points s i g n i f i c a n t l y detract from the strength of t h i s argument. F i r s t , a shrewd adviser might have contended that an invasion could p r e c i p i t a t e the very thing that Reagan wanted to avoid. Since Grenada could not have withstood a m i l i t a r y assault by the US, the only way that the m i l i t a r y could survive personally was to take hostages. Demands for the invasion forces to withdraw, or at least for the RMC's safe conduct out of the country, would be d i f f i c u l t and c ostly to refuse 2 0 6. Second, and more important, i f the US were genuinely and s o l e l y concerned about the safety of the Americans, only a limited-purpose rescue mission could have been j u s t i f i e d . The US forces, however, stayed i n Grenada for nearly two months, u n t i l they were ce r t a i n that a democratic government was established. In addition, State Department did not view evacuation as the only way to protect the US nationals. Deputy Secretary Dam indicated that the plan was to protect Americans by changing domestic p o l i t i c a l order so that US nationals could safely reside i n Grenada 2 0 7. Rules of international law do not allow a state to use the rationale of protecting i t s nationals to change p o l i t i c a l structures i n other countries to better s u i t the needs of i t s c i t i z e n s residing i n those countries. Hence, i t should be clear that the US decision to send troops to Grenada was not a d i r e c t r e s u l t of concerns about the safety of the Americans. 2. Joining the C o l l e c t i v e Security Forces of the OECS The second reason given i n Reagan's announcement on October 206One of the greatest i r o n i e s of the management of the students' safety was that the majority were f i n a l l y evacuated under conditions that were far more dangerous than those pr e v a i l i n g before the invasion. Ambursley, supra note 109, at 86. 207"The s i t u a t i o n i n Grenada", Hearing Before the Senate Committee on Foreign Relations, 98th Cong., 1st Sess. 6 (1983); in John Quigley, "The United States Invasion of Grenada: Stranger Than F i c t i o n " (Winter 1986/87) 18 U. Miami Inter-Am. L.. Rev. 231 at 278. 25 was that the US had joined the Organization of Eastern Caribbean States c o l l e c t i v e security forces "to f o r e s t a l l further chaos" 2 0 8 . This was related to his t h i r d reason of helping to restore democratic i n s t i t u t i o n s i n Grenada. Created i n 1981, the OECS Treaty contains within i t s charter a quasi-c o l l e c t i v e security provision 2 0 9. A r t i c l e 8 established the Defence and Security Committee which consists of the ministers of defence of the member states. This Committee i s responsible to the heads of the government of the member states 2 1 0. The Committee advises the Authority "on matters r e l a t i n g to external defence and on arrangements for c o l l e c t i v e security against external aggression" 2 1 1. I t i s not cle a r that the OECS Treaty contemplates the use of armed force against a member state, e s p e c i a l l y an invasion having the objective of resolving an in t e r n a l struggle for control of the structures of authority. If that were the case then, undeniably, the OECS acted ultra vires i t s treaty since 208Reagan, supra note 129, at 67. 2 0 9 A r t i c l e 8 provides i n relevant part: The Defence and Security Committee s h a l l have r e s p o n s i b i l i t y for coordinating the e f f o r t s of Member States for c o l l e c t i v e defence and the preservation of peace and security against external aggression and for the development of close t i e s among the Member States of the Organisation i n matters of external defence and security ... i n the exercise of the inherent r i g h t of i n d i v i d u a l or c o l l e c t i v e self-defence recognized by A r t i c l e 51 of the Charter of the United Nations. 2 1 0The heads of government comprise the "Authority" . See A r t i c l e 6 of the OECS .Treaty. 2 1 1 A r t i c l e 8(3) of the OECS Treaty; emphasis added. 100 the aspects of the s i t u a t i o n i n Grenada (which the OECS statement c i t e d as giving r i s e to concern) were e n t i r e l y i n t e r n a l to that country. I t should l o g i c a l l y follow that the US cannot l e g i t i m i z e i t s intervention by r e l y i n g on an unlawful OECS request. Some commentators have argued that a l i t e r a l reading of A r t i c l e 8 i s misleading 2 1 2. A r t i c l e 3 of the OECS Treaty sets out the purposes and functions of the Organization and makes i t clear that they broadly include "External Relations", "Mutual Defence and Security", and "[s]uch other a c t i v i t i e s calculated to further the purposes of the Organization as the Member States may from to time decide". This broad int e r p r e t a t i o n of A r t i c l e 3 may permit the use of c o l l e c t i v e self-defence against i n t e r n a l threats. This argument i s rather weak, nevertheless, because i t i s hard to imagine that a group of small Caribbean states signed an agreement i n order to f i g h t each other. Even i f one succeeds i n establishing that the OECS Treaty does allow for responses to in t e r n a l aggression among member states, several other complications a r i s e . For instance, i t i s not clear at a l l that the Treaty contemplates an i n v i t a t i o n to a m i l i t a r y dominant non-member to lead an invasion. Although the term " c o l l e c t i v e self-defence" i s used on numerous occasions, nowhere i s the option to i n v i t e outside assistance against a member state sti p u l a t e d . The United States i s not a party to t h i s Treaty and, therefore, l i e s outside the ambit of 2 1 2See for example, Norton Moore, supra note 94, at 163-66. 101 i t s concerns 2 1 3. At t h i s point, those who seek to defend the US invasion r e f e r to the r e l a t i v e m i l i t a r y strength of Grenada. The Caribbean states, i f l e f t on t h e i r own, would not have stood a chance against the Cuban-trained and equipped Grenadan army and m i l i t a r y personnel. The United States was asked to help a group of small states whose security was seemingly i n danger. Such a request could not have been denied. The next objection concerns the procedure used for decision-making under the OECS provisions. Paragraph 5 of the Treaty s t i p u l a t e s that decisions and d i r e c t i v e s pertaining to defence and security must be consented to unanimously by the member states 2 1 4. Since, t e c h n i c a l l y , Grenada was s t i l l an active member of the OECS, i t s vote was required i n the decision. The member-states, however, did not even i n v i t e Grenada to p a r t i c i p a t e in the meeting. The OECS members stated that there was no apparent government i n Grenada and, as a r e s u l t , that country could not p a r t i c i p a t e i n the meeting. This statement was meant to remove any objections to the rule of unanimity. There was, however, one other problem: According to various sources and press accounts, only four of the six other member states voted for the 2 1 3 I t should be noted that Barbados and Jamaica, which also p a r t i c i p a t e d i n the invasion, are not parties to the Treaty, ei t h e r . 2 1 4Christopher C. Joyner, "The United States Action i n Grenada" (Jan. 1984) 78 Am. J. I n t ' l L. 131 at 137. 102 plan to be carr i e d out. Some have reported that Montserrat and St. K i t t s / Nevis abstained, other reported that they voted against the intervention 2 1 5. In either case, the vote was not unanimous, and the plan should not have been c a r r i e d out. There have been indications that the US prompted the OECS decision, and that i t actually drafted the written request i n which the OECS asked for US m i l i t a r y intervention i n Grenada. The New York Times, for instance, reported on October 30 that the request was "drafted in Washington and conveyed to the Caribbean leaders by special American emissaries" 2 1 6. On October 23, Ambassador McNeil flew to Barbados to confer with the Prime Minister of the Dominican Republic and Chairperson of the OECS, Eugenia Charles, and get her signature on a written request 2 1 7. The US dra f t i n g of the request does not, on i t s own, negate the OECS desire for intervention. I t does, however, show a strong US ro l e i n the process by which the OECS made i t s request. More importantly, i t casts doubts on the true motives of the United States. F i n a l l y , and most importantly, although states do possess the inherent r i g h t of in d i v i d u a l or c o l l e c t i v e self-defence, such a r i g h t i s limited to those situations i n which the v i t a l i n t e r e s t s of a state are threatened. The s i t u a t i o n i n Grenada 2 I 5"Special Report", supra note 2 05, at 343; Joyner, supra note 214, at 137; New York Times. Oct. 26, 1983, at A8, c o l . 3; New York Times. Oct. 26, 1983, at A16, c o l . 6. 216New York Times. Oct 30, 1983, at A20, c o l . l . 2 1 7Quigley, supra note 2 07, at 316. 103 was one of i n t e r n a l concern, and neither the Caribbean states, nor the US had any v a l i d cause to panic. I t i s inconceivable that a small i s l a n d i n the Caribbean could pose such a threat to the US that the l a t t e r would actually resort to war. In t h i s respect, the Caribbean community's concerns may have been more understandable. But, even i n that case, the Grenadan o f f i c i a l s issued a statement ensuring everyone that they were not seeking m i l i t a r y confrontation 2 1 8. In short, there was no r e a l or imminent threat to any of the countries that invaded Grenada. Simply because there i s disorder or even a m i l i t a r y coup i n a country, the neighbouring states should not give themselves the r i g h t to intervene for the purpose of r e -establishing minimum public security, l e t alone imposing a p a r t i c u l a r form of government. 3. The I n v i t a t i o n by Grenada's Governor-General Since the decision-makers i n Reagan's Administration must have a l l been aware of the f a u l t s and short-comings of these two j u s t i f i c a t i o n s for the decision to invade Grenada, i t i s very u n l i k e l y that these were the actual reasons that the decision was based upon. A t h i r d legal j u s t i f i c a t i o n of the action i n Grenada was also presented by the US government. On November 2, 1983, i n a testimony before the House Foreign A f f a i r s Committee, Deputy Secretary of State Kenneth Dam revealed that the Governor-General of Grenada, S i r Paul Scoon, had c o n f i d e n t i a l l y 2 1 8"Special Report", supra note 205, at 339. 104 transmitted "an appeal for action by the OECS and other regional states to restore order on the isl a n d " 2 1 9 . If the Governor-General were the leg a l representative of the state, and i f he did request m i l i t a r y assistance, then h i s i n v i t a t i o n could j u s t i f y the US decision to intervene. There are, nevertheless, several points which should be discussed. F i r s t , the 1974 Constitution of Grenada placed "the Executive Authority of Grenada i n the Governor General as representative of Her Majesty's Government220. Various powers were given to the Governor General; for example, he could proclaim an emergency. The f i r s t impression that one gets from the 1974 Constitution i s that Scoon probably did have the leg a l authority to take action. In 1979, when Bishop came to power, he e f f e c t i v e l y suspended the Constitution and replaced i t with the People's Revolutionary Government i n a manner that l i m i t e d the Governor General's powers. The Governor General's p o s i t i o n was confined to performing "such functions as the People's Revolutionary Government may from time to time advise" 2 2 1. However, even with hi s r e s i d u a l powers, the Governor General may have been able to 2 1 9Kenneth Dam Statement i n Nash Leich, supra note 111, at 203. 2 2 0 A r t i c l e 57 of the Constitution of Grenada; Detlev F. Vagts, "International Law Under Time Pressure: Grading the Grenada Take Home Examination" (Jan. 1984) 78 Am. J. I n t ' l L. 169 at 171. 2 2 1"Declaration of Grenada Revolution", dated March 28, 1979,. People's Law No. 3, i n "Special Report", supra note 205, at 348. 105 authorize the intervention. Furthermore, i n the chaotic state of a f f a i r s which followed Bishop's murder, Scoon was the only authority l e f t under the Constitution and, therefore, the only person who had the power to act. One other factor which lends credence to the claim that Scoon did have the r i g h t to take action was that the OECS, the US, Barbados, Jamaica, and l a t e r even the UN accepted Scoon's authority to act i n Grenada's behalf 2 2 2. This acceptance represents, to some extent, p o l i t i c a l recognition of Scoon's authority. The recognition, however, may not have been as e f f e c t i v e as one would have hoped. F i r s t , the OECS, the US, Barbados and Jamaica were already planning the invasion. Their recognition, therefore, served t h e i r own needs more than Grenada's. By recognizing the Governor General's authority, they strengthened t h e i r own decision. Second, the recognition of the UN, on the other hand, could have made a c r i t i c a l difference i f i t had been extended at the appropriate time. But, i t was given a f t e r the Governor General's de facto control of the isla n d had been assured by the foreign m i l i t a r y forces. Third, the Governor General was appointed by Great B r i t a i n . Mrs. Thatcher, however, advised against the invasion and stated that the B r i t i s h did not wish to take part i n i t . The f a c t that the Governor General did not request the support of Great B r i t a i n , and that the l a t t e r did not wish to invade Grenada somewhat detracts from the v a l i d i t y of Scoon*s request. However, 2 2 2 I b i d . 106 Secretary Shultz, i n a news conference on October 25, pointed out that Grenada i s an independent state that no longer needs to consult with Great B r i t a i n before making a decision. Furthermore, although the B r i t i s h have had "great experience" i n the Caribbean, so have the Americans. The Caribbean i s i n the US' neighbourhood, so the US has "a very legitimate a f f i n i t y for those people" 2 2 3 . The permission or the consent of Great B r i t a i n , therefore, was not required i n t h i s s i t u a t i o n . F i n a l l y , recognition extended by outside forces says nothing or very l i t t l e about the true state of events i n a country. There i s reason to argue that General Austin's RMC was e n t i t l e d to recognition as the de facto, i f not the de jure, government of Grenada. The RMC was i n s u f f i c i e n t control of the island to impose a curfew. Also, the US, Great B r i t a i n and Canada contacted the RMC (as the main authority on the island) i n an e f f o r t to secure the safety of t h e i r nationals; and i t was the RMC that sent a telex to the US embassy assuring the US government that t h e i r c i t i z e n s would be safe. This debate over who had lawful authority usually a r i s e s i n cases of domestic s t r i f e . Although i n Grenada the Governor General was not the leader of one of the contending factions i n a c i v i l war, the s i t u a t i o n was ambiguous enough that other countries should have remained neutral. When the outcome of a re b e l l i o n i s not e n t i r e l y clear, the government (or a 2 2 3"Secretary Shultz' s News Conference", supra note 133, at 71. 107 representative thereof) cannot hold i t s e l f out to speak for the state 2 2 4. The Governor General and the RMC both had equivalent, colourable claims to authority. When President Reagan announced that US forces had landed i n Grenada, he did not mention anything about the Governor General's request. Partly because of t h i s i n i t i a l s ilence, the news of the i n v i t a t i o n was greeted with scepticism. In fact, the State Department has s t i l l not been able to prove unequivocally that a request was made p r i o r to the invasion 2 2 5. On October 27, when the Department issued i t s f i r s t statement regarding a request from Scoon, an explanation was offered that the alleged request was not publi c i z e d e a r l i e r because i t feared for the safety of Scoon, who was taken from his residence to the US warship Guam of the morning of October 26. This explanation i s rather hard to accept because there have been reports that Scoon did not make the decision to request assistance on his own. Once he was safely on board the US ship Guam, he made a written request, prompted by the US226. Statements l a t e r made by Scoon himself have been equally circumspect. His interviews do not f u l l y resolve doubts about how voluntary his i n v i t a t i o n was; nor i s he cle a r on whether he asked for a f u l l - s t r e n g t h m i l i t a r y operation, or merely security 2 2 4In t h i s case, the outcome was r e l a t i v e l y c l e a r : Without the US invasion, the RMC would have stayed i n power. 2 2 5Quigley, supra note 2 07, at 33 0. 2 2 6Ambursley, supra note 109, at 81. 108 forces to perform p o l i c e functions. Most importantly and c r i t i c a l to the v a l i d i t y of t h i s j u s t i f i c a t i o n , i n at least two interviews, Scoon stated that he asked for outside help on Sunday night, October 23 2 2 7. In other words, the request came two nights a f t e r the OECS decision and several hours a f t e r Reagan's prov i s i o n a l decision to proceed with m i l i t a r y action. The decision to invade was made p r i o r to the request and, that being the case, the Governor General's request (even i f there was a v a l i d request) i s i r r e l e v a n t . Another argument which has been i m p l i c i t l y presented i n support of the Governor General's actions i s that the legitimate government of Grenada acted i n i t s own self-defence, and the OECS and the US acted i n t h e i r r i g h t of c o l l e c t i v e self-defence. The basis of t h i s argument i s the assumption that the coup that brought the RMC to power was instigated and supported by Cuba. If there i s a c i v i l c o n f l i c t and the rebels are receiving foreign aid, then the government may ask for assistance. Since the RMC was receiving Cuban aid, i t was p e r f e c t l y l e g a l for the Governor General to request outside assistance. There has been a considerable amount of information on Cuba's involvement i n Grenada. Cuba, aft e r a l l , was providing f i n a n c i a l and technical aid to Grenada; the a i r p o r t at Point Salines was being b u i l t mainly by Cubans; and the resistance to US forces was led by Cuban m i l i t a r y personnel. Despite t h i s , however, Secretary Shultz admitted that the US had no d i r e c t 2 2 7"Special Report", supra note 205 , at 346. 109 information on whether or not the Cubans were involved i n the coup, although the " f e e l i n g " was that they were. He also emphasized that the US decision was not based on t h i s " f e e l i n g " 2 2 8 . That being the case, the argument cannot be made l a t e r that the rebels were receiving foreign assistance, and that the Governor General was acting i n Grenada's defence. Also, the Cubans were present i n Grenada p r i o r to the revolution. The Cuban involvement that the US was r e f e r r i n g to was a l l i n i t i a t e d by Prime Minister Bishop himself. I t was not as i f the Cubans were covertly supporting g u e r r i l l a s seeking to overthrow the government. The Grenadan incursion, therefore, i s s i g n i f i c a n t for what did not occur. There was no p r i o r o f f i c i a l i n v i t a t i o n by the Governor General on behalf of the Grenadan Government to any party for external intervention. There was no recourse taken by either the OECS members or the US to bring the matter before the OAS or the UN for peaceful settlement. One of the c r i t e r i a f or the i n i t i a t i o n of humanitarian intervention mandated that a state attempt to achieve a solution through an international organization before resorting to f o r c i b l e s e l f - h e l p . Simply because the US authorities believed that diplomatic e f f o r t s would prove f u t i l e i t was no reason to f a i l to contact the UN. For the US, swift and decisive use of m i l i t a r y force took precedent over following the course of diplomatic channels. 2 2 8"Secretary Shultz 1 s News Conference", supra note 133, at. 71. 110 B. NICARAGUAI The circumstances of the US intervention i n Nicaragua were d i f f e r e n t from Grenada in several ways. F i r s t , and most obvious, the United States did not overtly invade Nicaragua. There was not a d i r e c t US m i l i t a r y presence i n Nicaragua at any point. Rather, the war was fought from Washington. A second difference i s that, i n t h i s case, the US presented only one main le g a l j u s t i f i c a t i o n for i t s actions: self-defence. The argument that was put for t h by the US was that i t s action against Nicaragua were l e g a l l y j u s t i f i e d under A r t i c l e 51 of the United Nations Charter as actions of c o l l e c t i v e and/or i n d i v i d u a l self-defence. Nicaragua had allegedly been supplying g u e r r i l l a groups attempting to overthrow the governments of E l Salvador and Honduras since 1979. The US maintained that the purpose of i t s actions was to i n t e r d i c t t r a f f i c i n arms and supplies proceeding from Nicaragua to rebels i n the neighbouring countries. The US claimed that Nicaragua was exporting violence to the region and was t r y i n g to bring down the newly established democratic governments of i t s neighbouring countries. E l Salvador and Honduras had the inherent r i g h t to self-defence; the US, as an a l l y and a fr i e n d , had the r i g h t to act i n c o l l e c t i v e self-defence. The government of Nicaragua was, furthermore, a source of threat to the security of the US, which suggested that US actions could also be j u s t i f i e d by p r i n c i p l e s of i n d i v i d u a l self-defence. As Reagan stated i n a news conference on February 21, 1985, the Americans believed that they "have an obligation to be of help where [they] can to freedom f i g h t e r s and lovers of freedom and democracy, from Afghanistan to Nicaragua ,.."229. The only act that the US was g u i l t y of, therefore, was t r y i n g to help E l Salvador — an a l l y and a f r i e n d — i n defending i t s e l f against "the communists". If self-defence i s defined with respect to Daniel Webster's formulation i n the Caroline case, then a government a l l e g i n g self-defence must show a "necessity of self-defence [that i s ] instant, overwhelming, and leaving no choice of means, and no moment for deliberation" 2 3 0. The Caroline formula cannot be applied to the Nicaraguan case because there was never any threat by Nicaragua to the US (or any other country, for that matter) which required an instant r e f l e x i v e action. The a c t i v i t i e s undertaken by the CIA, for instance, were a l l planned over a long period of time. The US government, i n addition, had more than four years to deliberate about the choice of means for i t s Nicaraguan poli c y . There were numerous occasions where the parties had the chance to commence negotiations, but the US was never r e a l l y interested in t h i s approach. 229"News Conference of February 21" ( A p r i l 1985) 85 Dep't St. B u l l . 10 at 11. 230 See Schachter, supra note 31, at 163 5. 112 I t was clea r from the beginning that the purpose of US actions against Nicaragua had been to overthrow the Sandinista government, or at the very least, to force i t to completely change i t s structure. Public admissions were made i n t h i s regard by US o f f i c i a l s including the President himself. In a news conference on February 21, 1985, President Reagan e x p l i c i t l y stated that u n t i l the Sandinista government "says uncle", the goal of US po l i c y would be that of removing the "present structure" of that Government231. This, of course, was what Nicaragua had alleged to be the US goal from the very beginning. In a l l fairness, i t should be pointed out that i n 1983 statements were made by Reagan which claimed that the goal of the US was not to overthrow the Sandinista government. On A p r i l 27, 1983, before a j o i n t session of Congress, President Reagan said the following: . .. l e t us be clear as to the American attitude toward the Government of Nicaragua. We do not seek its overthrow. Our intere s t i s to ensure that i t does not in f e c t i t s neighbours through the export of subversion and violence. Our purpose, in conformity with American and international law, i s to prevent the flow of arms to E l Salvador, Honduras, Guatemala, and Costa Rica 2 3 2. These statements, however, were worth very l i t t l e because i n 1983 the CIA's covert war against Nicaragua was well under way. 2 3 1President's News Conference, New York Times. Feb. 22, 1985, at A10, co l s . 1,3. 2 3 2Reprinted i n Friedlander, supra note 180, at 273-4; emphasis added. 113 As i t was mentioned, the US claimed that Nicaragua was supplying arms to neighbouring countries and was, i n e f f e c t , "exporting revolution". Under such circumstances, the US and the other affected countries had the inherent r i g h t of s e l f -defence. The main factual problem with t h i s argument i s that the allegations were not e n t i r e l y true 2 3 3. In the Nicar v. US case i n 1986, the ICJ found that support for the armed opposition i n E l Salvador from Nicaraguan t e r r i t o r y was a f a c t up to the early months of 1981234. After the early months of 1981, however, evidence of m i l i t a r y aid from Nicaragua was very weak235. The Court added that, i f evidence r e a l l y existed, the US could be expected to have taken advantage of i t i n order to f o r e s t a l l or disrupt the t r a f f i c 2 3 6 . The Court concluded that: I t i s d i f f i c u l t to accept that i t [the US] should have continued to carry out m i l i t a r y and paramilitary a c t i v i t i e s against Nicaragua i f t h e i r only purpose was, as alleged, to serve as a riposte i n the exercise of the r i g h t of c o l l e c t i v e self-defence" 2 3 7. I t i s hard to imagine that Nicaragua was able to transport arms and equipment without a l e r t i n g the CIA of such a c t i v i t y . There are several other inconsistencies i n the US p o l i c y 2 3 3Carlos Tunnermann Bernheim, "United States Armed Intervention i n Nicaragua and A r t i c l e 2(4) of the United Nations Charter" ( F a l l 1985) 11 Yale J. I n t ' l L. 104 at 131. 234Nicar. v. U.S., Merits, Judgment of June 27 1986, I.C.J. Reports 1986, p. 1 at 82. 2 3 5 I b i d , at 84. 2 3 6 I b i d . 2 3 7 I b i d . 114 which are worthy of mention. F i r s t , i n the very f i r s t NSC documents accompanying the plan i n i t i a l l y approved by Reagan i n November 1981, the following statement of purpose was included: "[To b ] u i l d popular support i n Central America and Nicaragua for an opposition front that would be n a t i o n a l i s t i c , anti-Cuban and anti-Somoza . ,."238. This purpose i s i n no way r e l a t e d to i n t e r d i c t i n g the flow of arms. Most of the actions and plans of the CIA were also i r r e l e v a n t to the flow of arms from Nicaragua. For example, the CIA provided m i l i t a r y and f i n a n c i a l support to Eden Pastora, whose forces were based i n Costa Rica — far from any p o t e n t i a l weapons routes — and whose stated objective was the overthrow of the Nicaraguan government239 . Moreover, the "Psychological Operation i n G u e r r i l l a Warfare" manual which was published by the CIA had purposes other that the i n t e r d i c t i o n of weapons t r a f f i c . Even i f the US allegations of Nicaraguan arms shipments were true, the US response was on a completely d i f f e r e n t scale and the requirement of proportionality was severely v i o l a t e d 2 4 0 . Nicholas Rostow, Special Assistant to the Legal Adviser, United States Department of State, has t r i e d to argue the contrary 2 4 1. 238Wash inert on Post. May 8, 1983, at A l l , c o l . 3. 239Tunnermann Bernheim, supra note 233, at 132. 2 4 0See supra note 33. 2 4 1Nicholas Rostow, "Nicaragua and the Law of Self-Defense Revisited" (Spring 1986) 11 Yale J. I n t ' l L. 437. 115 According to him, a defensive use of force ought to r e f l e c t only what i s necessary to end the v i o l a t i o n of international law that gave r i s e to the r i g h t of self-defence. Thus, US support for the government of E l Salvador i s a proportional use of force, designed to discourage the Sandinistas from supporting g u e r r i l l a movements. Rostow's argument i s understood to the point that i t i s acceptable to give assistance to one side i n a c i v i l s t r i f e i f the opposite side i s receiving foreign a i d . On the other hand, Mr. Rostow takes h i s argument one step further by claiming that mining Nicaragua's harbour i n 1984 constituted a proportional response to Nicaragua's arms shipments by aiming to deprive i t of the sources of these supplies 2 4 2. What he f a i l s to accept i s that the mining did much more damage than merely depriving Nicaragua of supplies. A blockade i s an act of war that cannot be j u s t i f i e d by the US' claimed r i g h t of self-defence 2 4 3 . The US creation of the mercenary army which regularly launched attacks against Nicaragua's economic and c i v i l i a n targets deep within the country was not a proportionate response, either. Even i f US intervention i n Nicaragua can be j u s t i f i e d based on the facts, US action i n the World Court raises a number of l e g a l implications. F i r s t , as was previously mentioned, the announcement on A p r i l 8, 1984 that the US was immediately withdrawing from the j u r i s d i c t i o n of the ICJ was i n e f f e c t i v e . 2 4 2Ibid, at 4 54. 2 4 3von Glahn, supra note 10, at 653-57. 116 By so doing, the Reagan Administration showed i t s disregard for the rules of the Court, and t r i e d to escape the obli g a t i o n that i t had to the other states which had accepted the Optional Clause of the Court. In i t s judgment of November 26, 1984, the Court held that the US n o t i f i c a t i o n of withdrawal "cannot override the obligation of the United States to submit to compulsory j u r i s d i c t i o n of the Court v i s - a - v i s Nicaragua" 2 4 4 Second, and more importantly, the ICJ entered an interim judgment against the US on May 10, 1984 which had the e f f e c t of an international injunction. The CIA, nonetheless, continued to support the contras under the authorization of the US government and President Reagan. On t h i s alone, the US government was i n v i o l a t i o n of the Court's decree. The US government persisted i n a p o l i c y and course of action i n w i l f u l v i o l a t i o n of international law as determined by the World Court. After the Court made t h i s i n i t i a l decision, the US attacked the Court on another l e v e l and began arguing against the j u r i s d i c t i o n of the Court. The government placed considerable emphasis on the wording of A r t i c l e 51 of the United Nations Charter and claimed an "inherent" r i g h t of self-defence. The US stated that, by hearing the case on i t s merits, the Court would be taking action "under the Charter". In turn, by pronouncing on the lawfulness of the self-defence claims, the very r i g h t protected by A r t i c l e 51 would be impaired. 244Nicar. v. U.S., J u r i s d i c t i o n and A d m i s s i b i l i t y , supra note. 191, at 54. 117 It was further argued that a decision by the Court would v i o l a t e A r t i c l e 51 since that provision provides a ro l e i n such matters only to the Security Council. The US claimed that the Security Council's competence was t o t a l and exclusive so that any j u d i c i a l examination of a self-defence claim would be an impairment of the self-defence r i g h t 2 4 5 . The Court decided on November 26, 1984, that i t did have j u r i s d i c t i o n to entertain the case brought to i t by Nicaragua 2 4 6. The US Department of State immediately released a statement which said: The Court's decision of November 26, 1984 ... i s contrary to law and f a c t . With great reluctance, the US has decided not to pa r t i c i p a t e i n further proceedings i n t h i s case. 2 4 7 To that day, the Department of State had issued a statement withdrawing from the ICJ's compulsory j u r i s d i c t i o n , and another statement claiming that the Court did not have j u r i s d i c t i o n to hear the case on i t s merits. Since neither of these strategies prevented the Court from making a decision regarding the case, the US refused to p a r t i c i p a t e i n the proceedings. According to Franck, the US statement suggested that the 2 4 5Isaak Dore, "The United States, Self-Defense and the U.N. Charter: A Comment on P r i n c i p l e and Expediency i n Legal Reasoning" ( F a l l 1987) 24 Stan. J. I n t ' l L. 1 at 16. 246Nicar v. US, J u r i s d i c t i o n and Ad m i s s i b i l i t y , supra note 191, at 54. 247"US Withdrawal from the Proceedings I n i t i a t e d by Nicaragua i n the International Court of Justice", statement by the U.S. Dep't of State, undated, at 1 (mimeo) . Quoted i n Thomas M. Franck, "Icy Day at the I.C.J." ( A p r i l 1985) 79 Am. J. I n t ' l L. 379. 118 decision to withdraw ..from the proceedings was based on two conclusions. F i r s t , the US government believed that the Court's decisions to date were so b l a t a n t l y biased as to foreclose the p o s s i b i l i t y of a f a i r hearing 2 4 8 . The government statement asserted that the decision of November 26 was "erroneous as a matter of law" and was based "on a misreading and d i s t o r t i o n of the evidence and precedent" 2 4 9. The US was d i s s a t i s f i e d with the supposedly p o l i t i c i z e d , anti-Western bias of the Court, as revealed by the preliminary decisions i n the Nicaraguan case. The second conclusion was that the US had to undertake a basic rethinking of i t s r e l a t i o n s with the Court and other m u l t i l a t e r a l i n s t i t u t i o n s . The Reagan Administration was convinced that the US could act more s w i f t l y and d e c i s i v e l y i n matters of national i n t e r e s t i f i t s interests were not subordinated to a system that i t could not control 2 5 0. The decision not to p a r t i c i p a t e i n the proceedings r e f l e c t e d , more than anything else, the determination of the Reagan Administration. This was, a f t e r a l l , the same Court that despite i t s so-called anti-Western tendencies overwhelmingly endorsed the US complaint against Iran during the hostage c r i s i s of 1980. There was no l o g i c a l reason for the US to claim that the Court could not make a f a i r decision. The US decision to withdraw from the proceedings, arguably, 2 4 8 I b i d . 2 4 9 I b i d . 2 5 0 I b i d . 119 was a mistaken strategy. For, by doing so, the US ab initio undercut i t s own legal arguments. In a way, the US admitted being g u i l t y , even before the Court made i t s decision i n 1986. The ICJ then held that the US was, i n fact, engaged i n an armed attack against Nicaragua through the arming and t r a i n i n g of the anti-Sandinista rebels 2 5 1. The judgment of the Court p u b l i c l y declared the US g u i l t y of acting i n v i o l a t i o n of norms and standards of international law. The covert was against Nicaragua was an example of the US w i l f u l l y disregarding the r i g h t s of another state and intervening i n the i n t e r n a l a f f a i r s of that state. Nicar v. US, Merits, supra note 234, at 96-98. 120 VII. CONCLUSION The Reagan Administration, as can be seen from the two cases discussed above, was not t r u l y concerned with the norms and p r i n c i p l e s of international law. In both s i t u a t i o n s , the US was determined to preserve US security by stopping the spread of communism in the Western Hemisphere. This fear of "the domino e f f e c t " was a major factor i n US decision-making. Every action of Grenada and Nicaragua — even before the actual United States 1 intervention — was seen from t h i s point of view. Well before 1983, for example, a dispute arose over the character of a new in t e r n a t i o n a l a i r p o r t being b u i l t at Point Salines i n Grenada. In a speech i n March 1983, Reagan made a reference to t h i s a i r p o r t : Grenada i s building a new naval base, a new a i r base, storage bases and barracks for troops, and t r a i n i n g grounds and, of course, one can believe that they are a l l there to export nutmeg252 . The same attitude was c l e a r l y present i n US r e l a t i o n s with Nicaragua. In an address before a j o i n t session of Congress on A p r i l 27, 1983, Reagan said that the Sandinista government, "even worse than i t s predecessor, ... i s helping Cuba and the Ambursley, supra note 109, at 49. 121 Soviets to d e s t a b i l i z e our hemisphere" 2 5 3 . The US was not going to j u s t witness the d e s t a b i l i z a t i o n of an entire region. A successful operation i n Grenada, furthermore, would have restored self-respect for the United States as far as the public was concerned. Since the traumatic withdrawal from Vietnam, on almost every occasion where US forces had been deployed i n combat, things had gone unbelievably wrong. The Mayaguez incident i n 1975, and the rescue attempt to rescue the hostages in Tehran i n 1980 are only two examples from a l i s t of f a i l u r e s . The r e a l rationale behind the decision to invade Grenada, therefore, was to maintain US security by establishing a regime which met with the Reagan Administration's approval. The new government of Grenada was not supposed to get too close to either Havana or Moscow. In a tel e v i s e d speech on Grenada, on October 27, 1983, Reagan said: Grenada we were t o l d was a f r i e n d l y i s l a n d paradise for tourism. Well, i t wasn't. I t was a Soviet-Cuban colony being readied as a major m i l i t a r y bastion to export t e r r o r and undermine democracy. We got there just i n time 2 5 4. There i s no doubt, moreover, that American support of the contras was directed toward creating an incentive for the Nicaraguan junta to modify i t s behaviour and to begin a dialogue of accommodation with the US. By f a l l 1983, the junta was giving indications of a willingness to moderate i t s differences 2 5 3Ronald Reagan, "Central America: Defending Our V i t a l Interests" (June 1983) 83 Dep't St. B u l l . 1 at 3. 2 5 4Lewis and Mathews, supra note 97, at 28. 122 with the Reagan Administration. But, by that time, the US was so caught up i n i t s war against Nicaragua that i t saw each mild concession as an opportunity to exact more stringent measures. Thus, i t i s clear that the decision-makers, i n both the Grenadan and Nicaraguan cases, were following the same basic strategy. They had a chance to, at least, t r y to overthrow an adversarial regime. Both situations occurred at almost the same time, so there was no time for a major change i n US foreign p o l i c y . As a matter of fact, the legal arguments that emerged af t e r the interventions were very similar i n nature. Heavy emphasis was placed on the in d i v i d u a l and c o l l e c t i v e r i g h t s of self-defence. In both cases, the US t r i e d to a l l e v i a t e some of the pressure by arguing that i t had taken action i n order to help other countries, and that i t did not have any s e l f i s h motives. The purpose of the invasion of Grenada, supposedly, was to e s t a b l i s h the security of i t s small neighbouring states. I t should be mentioned, once again, that i n neither case the argument was made that US p o l i c i e s were counter-i n t e r v e n t i o n i s t . In other words, both Grenada and Nicaragua were receiving m i l i t a r y and f i n a n c i a l aid from Communist countries. I t has been suggested i n the previous sections that, had a counter-intervention argument been made, i t probably would not have been able to withstand close examination. However, i t i s noteworthy that the Reagan Administration did not even t r y to present such a case. What i s clear from these two cases i s that there has been a steady erosion of the le g a l norms governing the use of force i n the r e l a t i o n s of the United States with other countries. That the US has the m i l i t a r y and p o l i t i c a l power to circumvent into i n ternational l e g a l obligations without fear of international sanction i s somewhat beside the point. The main concern i s that, following US behaviour as a model, other national leaders w i l l perhaps f e e l less constrained by these norms than they once did. I t should be mentioned, nonetheless, that the US was widely c r i t i c i z e d regarding i t s p o l i c i e s toward Nicaragua. This may show that some states found the actions of the US unacceptable and contrary to the norms of int e r n a t i o n a l law. There i s , as a r e s u l t , very l i t t l e respect for the US as a promoter of international law. In terms of the purposes and the goals of the United Nations, i t i s impossible to reconcile the commitment to sovereignty, p o l i t i c a l independence, and t e r r i t o r i a l i n t e g r i t y with allowing foreign forces to choose a country's government structure. When, for instance, US forces are sent into Grenada to resolve an in t e r n a l struggle for power, the chances are minute that the US w i l l forsake i t s own national p o l i c y interests i n favour of unconditional self-determination. To answer a question posed by Franck, perhaps the US i s p a r t l y responsible for " k i l l i n g " A r t i c l e 2 (4 ) 2 5 5. The US attitude regarding the ICJ (in the Nicaraguan case, 2 5 5Franck, supra note 22. 124 i n p articular) has had serious ramifications. F i r s t , withdrawing from the Court's compulsory j u r i s d i c t i o n on such short notice showed that the United States i s not s e r i o u s l y committed to resolving disputes i n such a forum i f i t s i n t e r e s t s are better served otherwise. The Court i s a t r i b u n a l that the US w i l l gladly r e f e r to i t i s c e r t a i n beforehand that i t w i l l emerge a winner — as was the case involving the US and Iran. The i n d i c a t i o n that the ICJ did not have j u r i s d i c t i o n to decide the case on i t s merits was another case of disrespect for the Court. Had t h i s argument been, i n fact, accepted, the Court's functions would have been reduced to hearing the most t r i v i a l cases. The r o l e of the Court in peaceful resolution of disputes would have declined even more. The main difference between the two cases of Grenada and Nicaragua was the actual duration of the intervention. For Grenada, the decision to deploy forces was taken i n ten days, and by November 2, the armed c o n f l i c t had come to an end. United States' intervention i n Nicaragua, on the other hand, lasted for years. The Reagan Administration had many opportunities to begin negotiations with the Sandinistas, or to consider reversing i t s p o l i c i e s . Perhaps i f , instead of Nicaragua, a second case had been chosen i n which the US perceived i t s e l f to be under time constraints to act, the comparison with Grenada would have been more v a l i d . F i n a l l y , i f a generalization can be made from these two cases, the conclusion to be drawn i s that states tend to act in. 125 t h e i r own national i n t e r e s t . Hence, international law works to the extent that states permit i t to do so. When perceived national i n t e r e s t s are deemed paramount, the law may suffe r accordingly. International law may serve less as a r e s t r a i n t on national p o l i c y than as an ex post facto rationale to explain i t . For the United States, i n the two instances discussed, anticipated p o l i t i c a l and s t r a t e g i c gains through intervention overrode diplomatic considerations involving international l e g a l constraints. 126 VIII. 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