Defense In Depth
Why U.S. Security Depends on Alliances—Now More Than Ever
We face many foreign policy decisions—how to respond to the fighting in Afghanistan, Lebanon, Nicaragua, Salvador, Angola, Kampuchea, the Philippines and soon, perhaps, South Africa—that involve the legality of intervening in a civil war. The international law journals are full of scholarly discussions on this subject. They are hard for non-scholars to follow. They disagree sharply, as scholars are wont to do, in their argumentation and conclusions. For readers who are not scholars of international law, this article tries to explain how the rules have evolved, where they now stand, and how they might be clarified to relieve the rising tension between the principle of nonintervention and the human rights of self-determination and open democratic elections.
Does it matter whether our military interventions in civil wars, or those of the Soviet bloc, violate international law? Only the U.N. Security Council has the legal power to enforce international law, and it in fact has no such power against the Soviet Union or the United States if either chooses to exercise its right of veto. The columnist George Will has suggested that Americans ought to care less about whether we have the legal right to intervene than whether intervention in a particular civil war is the right thing to do.
But it does matter whether our actions comply with international law. It matters precisely because we are a practicing democracy with both philosophical and geopolitical reasons to encourage the democratic aspirations of all peoples. Democracy cannot flourish in a lawless climate; it depends on widely accepted principles of law for its survival. That is obvious with respect to national law. It is equally important with respect to international law, especially our treaty commitments under the charters of the United Nations and the Organization of American States. No democratic nation—least of all a democratic superpower—can afford to act in a manner that admittedly flouts international law. To sustain free-world support of our leadership, our actions must be confined to steps we can justify as consistent with a principled interpretation of the law as we see it.
There is another reason why it matters that we comply with international law. One price of being a democratic superpower with worldwide responsibilities is that no course of action abroad can be sustained without broad popular support at home. A broad segment of the American public is uneasy about any step that may put us in violation of our international obligations. The legislation passed by Congress approving non-lethal aid for the Nicaraguan contras bars the executive branch from taking any discretionary action, not expressly authorized by Congress, that is contrary to international law.
International law on interventions goes back more than two centuries. A good place to begin is Vattel’s Law of Nations, published in 1758:
If a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him; if, by his insupportable tyranny, he brings on a national revolt against him, any foreign power may rightfully give assistance to an oppressed people who ask for its aid. . . .
To give help to a brave people who are defending their liberties against an oppressor by force of arms is only the part of justice and generosity. Hence, whenever such dissension reaches the state of civil war, foreign Nations may assist that one of the two parties which seems to have justice on its side. But to assist a detestable tyrant, or to come out in favor of an unjust and rebellious people, would certainly be a violation of duty.
Vattel’s rules would have suited the Reagan Administration’s view of the world to perfection. These rules would support the legality of military aid to the Duarte government, the Nicaraguan contras and the Afghan freedom fighters. They would provide no legal comfort for the Soviet invasions of Czechoslovakia and Afghanistan, Soviet-Cuban support of the Sandinista regime, or Soviet-Cuban-Nicaraguan aid to the guerrillas in Salvador. Aid to democratic forces in or out of power would be lawful; aid to tyrants or would-be tyrants would not.
But Vattel’s rules are out of fashion. They differ markedly from the established rules of international law today. Vattel wrote at a time when war itself was a lawful act, so long as the initiator could point to a just cause. Self-defense was not the only just cause. Recovering lost territory, preserving the balance of power, assisting royal relatives on other thrones, converting the heathen, defending the established church, avenging a slight to national honor—all were just causes. So was helping an oppressed people to overthrow a tyrannical regime. It was in Vattel’s era that France, a superpower of that time, could claim just cause for sending the forces that helped the American insurgents win the decisive battle at Yorktown against France’s main rival, Great Britain.
After the horrors of World War I, the community of nations sharply limited the expansive legal theory of the just war. The Covenant of the League of Nations, signed by the leading powers of the day and ratified by all but the United States, outlawed all war except in self-defense. The league finally collapsed, of course, but its basic ideas were renewed and refined in the U.N. Charter.
Article 2(4) of the charter is short and deceptively simple. It deals not only with war, but all resorts to force even when war is not declared. It says:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any other state, or in any other manner inconsistent with the Purposes of the United Nations.
The only exception to this prohibition is Article 51 of the charter, which exempts any action taken "in individual or collective self defense if an armed attack occurs against a Member of the United Nations. . . ." Even this exception is permitted only "until the Security Council has taken measures necessary to maintain international peace and security."
The United States is also a party to the Charter of the Organization of American States. The revised OAS charter contains a similar provision in Article 18:
No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements.
Over the four decades since these charters were adopted, there have been innumerable armed insurgencies. In most of them, third states have provided arms, training, transport or armed forces to the government or the insurgents. A short list would include Afghanistan, Angola, Bangladesh, Bolivia, Burma, Central African Republic, Chad, China, Cyprus, Dominican Republic, El Salvador, Ethiopia, Greece, Hungary, Kampuchea, Lebanon, Malaysia, Mozambique, Nicaragua, Nigeria, Oman, Somalia, Sudan, Uganda, Vietnam, Yemen and Zaïre.
All the states that have furnished such assistance—including all five permanent members of the U.N. Security Council—have maintained that their actions did not violate the U.N. Charter or, where applicable, the OAS charter. A majority of the Security Council has often disagreed, but one of the permanent members has usually blocked action by a veto to protect itself or one of its client states. Until Nicaragua’s pending complaint against the United States, the International Court of Justice has not had occasion to pass on the legality of any of these interventions.
On their face, Article 2(4) of the U.N. Charter and Article 18 of the revised OAS charter do not refer to civil wars. Nor do they refer to particular types of intervention (money, civil supplies, transport, arms and military training) that fall short of threatening or using armed force. However, the U.N. General Assembly and an authoritative international legal body have adopted resolutions that specifically address these issues.
The Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States, adopted by the U.N. General Assembly in 1970 without objection by any of the permanent members, states:
No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. . . .
No state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.
In 1975, the Institut de Droit International adopted a resolution on "The Principle of Non-Intervention in Civil Wars." The institute is the "college of cardinals" of international law scholars, with about 60 members including judges of the World Court. It defined a civil war as "any armed conflict, not of an international character, which breaks out in the territory of a State and in which there is opposition between . . . the established government and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State." The resolution condemned any of the following acts:
a. sending armed forces or military volunteers, instructors or technicians to any party to a civil war, or allowing them to be sent or to set out;
b. drawing up or training regular or irregular forces with a view to supporting any party to a civil war, or allowing them to be drawn up or trained;
c. supplying weapons or other war materiel to any party to a civil war, or allowing them to be supplied;
d. giving any party to a civil war any financial or economic aid likely to influence the outcome of that war.
Ironically in the light of current U.S. positions, American delegates, concerned by Soviet bloc interventions in Eastern Europe and Latin America and in the colonial wars of liberation, supported all these formulations.
International legal scholars, relying on state practice, have recognized several exceptions to these categorical rules of nonintervention:
—Most scholars agree that when an insurgency has produced internal chaos and a breakdown of public order in a state, other states may forcibly enter its territory to bring in food and medical supplies or rescue diplomats and nationals (as in the Congo in 1964 and, in somewhat more dubious circumstances, the Dominican Republic in 1965).
—Some scholars believe that a state may always supply armed forces or other military aid at the request of a government fighting an insurgency. The theory is that aid to the government in power cannot be directed against "the territorial integrity or political independence" of the state whose government is being assisted. This theory would cover aid to the Duarte government in El Salvador or to the Marcos government in the Philippines.
—A majority of scholars, including the longtime general counsel of the United Nations and Columbia Law School professor, Oscar Schachter, believe that once any state assists either the government side or the insurgent side in a civil war, this is a violation of the charter that entitles any other state to assist the opposite side.
As Schachter puts it:
Despite the danger [of internationalizing a local conflict], the law does not proscribe such counterintervention. It is not that two wrongs make a right but that the grave violation of one right allows a defensive response.
The Institut de Droit International recognizes this exception for counterintervention, but "only in compliance with the Charter and any other relevant rule of international law, subject to any such measures as are prescribed, authorized or recommended by the United Nations." On the Reagan Administration’s view of the relevant facts, this exception would probably cover our aid to the Nicaraguan contras and the Afghan freedom fighters as well as to the Duarte government.
The net of all this is very murky. There appears to be some authority for banning military assistance to either side of a civil war, some for allowing military aid to the government side but not to the insurgent side, and some for allowing such aid to either side if another state is already giving military assistance to the opposite side. When the World Court decides the current Nicaraguan case, some elements of this legal muddle may be clarified. But after the withdrawal of the United States and absent a full presentation of the factual and legal aspects of the U.S. position, the authority of the court’s decision will be considerably weakened.
The most significant thing about how modern international law treats interventions is that Vattel’s standards of oppression and justice are not even mentioned. The law, as now formulated, appears to treat the democratic or dictatorial nature of the government in power as wholly irrelevant. Aid to a democratic government, or to insurgents trying to overthrow a tyranny and create a democratic government, appears to stand on the same footing as aid to a tyrannical government, or to insurgents trying to overthrow a democratic government and create a tyrannical one. Vattel’s rules were based on the principle of the just war, and the U.N. Charter now limits the scope of just wars or other uses of armed force to individual or collective self-defense against an armed attack on a member state. Help to a "brave people" seeking to overthrow a "detestable tyrant" does not fit within that narrow window.
Many Western legal scholars and political leaders feel uncomfortable with this indifference toward democratic principles. But others justify it as a necessary deference to another important principle: the principle of "minimum public order" among states that disagree widely about the values of personal freedom and democracy and even as to the meaning of these terms. Minimum public order is a principle recently formulated by international legal scholars, based on the need to maintain the stability of the international system and to avoid a general nuclear exchange. In the opinion of these scholars, minimum public order requires that each state, whatever its character, be protected from the intervention of other states in its internal affairs.
Is there a principled way to distinguish between the legality of aiding the democratic side and the illegality of aiding the tyrannical side? I believe there is, but it must include specific limits on when a policy of aiding the democratic side may be pursued.
Our Declaration of Independence, influenced by Vattel, Locke and other apostles of the eighteenth-century Enlightenment, proclaimed the right of any people to rebel by force against a tyrannical regime. This principle has inspired many such revolutions. It had achieved worldwide acceptance, at least until the coming of the Brezhnev Doctrine.
It is not a right under domestic law, in the sense that citizens who take up arms against their government would be immune from domestic punishment if the revolution fails. Our own forefathers wrote a constitution that makes treason a high crime, and many of those who fought and lost in Shays’ Rebellion and our Civil War had to pay the consequences. The right to rebel against a tyrant is really a right asserted under natural law. It includes the right to seek the support of other states on behalf of a just cause and, if the regime is overturned, to be recognized as the lawful successor government.
Is there a parallel right to rebel by force against a democratic regime that gives all its people the opportunity to vote in free elections open to any candidate? John Locke thought not. In his Treatise on Civil Government, he argued: "Force is to be opposed to nothing but to unjust and unlawful force; whoever makes any opposition in any other case draws on himself a just condemnation both from God and man." There may be an exception for a colonial people, as in Algeria when it was part of metropolitan France, or for an ethnically based secession movement, as in Nigeria. But these cases aside, no one has ever attempted a principled articulation of such a right. Instead, the issue has usually been sidestepped, as the Bolsheviks did in deposing Kerensky’s provisional government, by claiming that the regime in power was not truly democratic. Of course, there have been countless military coups d’état in which the national armed forces have deposed a democratic civil government, but they are never defended on the articulated principle of a popular right to rebel. They are justified by the "duty" of the military to correct a breakdown of public order, and the bitter pill is usually sweetened by the promise of early new elections.
The case for denying any right to rebel by force against a democratic government was strikingly put a century ago by a leading Russian terrorist party. When President James Garfield was assassinated in 1881 just after Russian terrorists had assassinated Tsar Alexander II, the People’s Will Party published this message of condolence to the American people:
The Executive Committee, expressing its profoundest sympathy with the American people on account of the death of James Abram Garfield, feels it to be its duty to protest in the name of Russian revolutionaries against all such deeds of violence as that which has just taken place in America. In a land where the citizens are free to express their ideas, and where the will of the people does not merely make the law but appoints the person who is to carry the law into effect, in such a country political assassination is the manifestation of a despotic tendency identical with that to whose destruction in Russia we have devoted ourselves. Despotism, whatever may be the parties or whoever may be the individuals that exercise it, is always blameworthy, and force can be justified only when employed to resist force.
In modern idiom, People’s Will was saying that no group with a political grievance has the right to depose a democratic government by shooting its way into power.
If there is a popular right to rebel only against a tyrannical regime and not against a democratic one, Vattel’s principles of intervention should retain their validity. They justify military aid to insurgents who rebel against a repressive regime but not to those who rebel against a democratic government. They justify military assistance to a democratic government but not to a repressive one.
Can Vattel’s principles be accommodated within the framework of modern international law? As Yale University Professor Michael Reisman and other distinguished scholars have argued, there is room for accommodation in two of the "Purposes" of the United Nations set forth in Article 1 of the charter. These are "equal rights and self-determination of peoples" and "respect for human rights and for fundamental freedoms for all."
Self-determination is a broad concept. In the Treaty of Versailles and the League of Nations Covenant, it probably meant the right of a "people," however defined, to be free of foreign rule. But in a 1966 resolution, the U.N. General Assembly construed Article 1 of the charter more broadly. Under the International Covenant on Civil and Political Rights, "All peoples have the right of self-determination. By virtue of the right they freely determine their political status" (emphasis added).
In the name of self-determination, the U.N. General Assembly has adopted numerous resolutions upholding the rights of blacks in South Africa and Rhodesia against discriminatory white-dominated regimes. It has even urged third states to assist the black populations in their struggle. The Security Council also called for its members to impose economic sanctions against both states because they denied self-determination to their peoples.
Does self-determination include the right to vote in free elections open to all candidates? One can powerfully argue that it does. How else can peoples "freely determine their political status?" In any event, free elections have now achieved independent recognition as one of the "human rights" and "fundamental freedoms" that the charter is intended to promote and encourage.
Article 21 of the U.N. Universal Declaration of Human Rights asserts:
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The U.N. International Covenant on Civil and Political Rights and several regional human rights agreements also affirm the right to vote in free elections. These human rights resolutions also recognize the essential civil liberties necessary for the rule of law and the dignity of the individual.
But a state’s duty to hold free elections and maintain the rule of law does not necessarily give other states the individual right to use force to compel the offending state to perform that duty, or to assist an insurgent group trying to overthrow the offending regime. Article 2(4) does not permit individual states to threaten or use force against another state for any purpose except self-defense against an armed attack. In all other cases, force can only be threatened or used by collective action of the United Nations or a regional peacekeeping body. Something more is required before such a unilateral right can arise.
Michael Reisman has advanced a theory to provide this something more. He points to the duty of the United Nations to promote and encourage self-determination and human rights and the failure of the organization to take collective measures that would bring the anti-democratic regime to heel. In the light of this failure, by analogy to citizen self-help when law enforcement breaks down, Reisman argues that other individual states are entitled to uphold these rights by intervening to enforce them. He contends that in such cases Article 2(4) should not be construed to bar unilateral actions against repressive regimes that themselves violate the purposes of the charter.
Reisman’s views have been strongly challenged by other scholars, including Oscar Schachter:
It is difficult to extend [Reisman’s] argument to justify an armed invasion to topple a repressive regime. . . . The idea that wars waged in a good cause such as democracy and human rights would not involve a violation of territorial integrity or political independence demands an Orwellian construction of those terms. . . . It would introduce a new normative basis for recourse to war that would give powerful states an almost unlimited right to overthrow governments alleged to be unresponsive to the popular will or to the goal of self-determination. . . . That invasions may at times serve democratic values must be weighed against the dangerous consequences of legitimizing armed attacks against peaceful governments.
I come down between Reisman and Schachter. I agree with Reisman that Article 2(4) must be reconciled with the stated purposes of the United Nations to promote self-determination and free elections, and also with his point that the U.N. machinery has not been able to take effective measures against governments which repress these rights. But I agree with Schachter that, despite Reisman’s points, Article 2(4) cannot be read to give other states an unlimited right to topple a repressive regime by force.
I would therefore interpret Article 2(4) as permitting a third state to intervene only when two conditions exist: first, an indigenous pro-democratic insurgency is engaged in a civil war with the repressive regime; and, second, some other third state has been giving military assistance to the repressive regime. As a corollary of this proposition, other states are also entitled to provide military support to a democratic regime engaged in a civil war against an anti-democratic insurgency, but only if the insurgent forces have been receiving outside military support from another third state.
A right of counterintervention on the democratic side splits the difference between the Reisman and Schachter wings of the community of international law scholars. It states the one case in which the views of the two wings intersect. For different reasons, both wings would support the legality of such a counterintervention—Reisman more because it is on the democratic side than because it happens to be a counterintervention, and Schachter more because it is a counterintervention than because it happens to be on the democratic side.
It hardly needs adding that this right to counterintervene in a civil war would not entitle the United States to arm and train an antigovernment group to start a civil war. The existence of a democratic insurgency independently capable of creating a state of civil war is one of the essential conditions precedent to our legal right to provide military aid. The right disappears if, as in the Bay of Pigs incident, we ourselves take part in bringing the civil war about. That, of course, is what the Sandinista regime charges us with doing (and the United States denies) in Nicaragua’s case before the World Court.
This right of counterintervention on the democratic side states a principled position which the United States can staunchly defend. It respects the rule that no state should be the first to intervene in another state’s civil war so long as that war is a purely internal affair. It respects the right of any people either to defend a democratic government or to rebel against a tyrannical one. It allows another state to assist the democratic side if some other state is assisting the anti-democratic side. It has solid roots in the principles of the eighteenth-century Enlightenment that inspired the democratic ideal and remain valid today. It gives meaning to the reaffirmation of this ideal in Article 1 of the U.N. Charter. It does so without emasculating the principle of nonintervention set out in Article 2(4).
Reisman and some other legal scholars would go further. Like Vattel, they would affirm the right to intervene on behalf of the democratic side in a civil war whether or not some other state has provided military aid to the opposite side. I do not see how the Article 1 rights of self-determination and free elections can be pressed this far without overriding Article 2(4)’s principle of nonintervention entirely. If the goals of the two articles are to be harmonized rather than reading either one as superior to the other, the right to intervene on the democratic side must be limited to a right of counterintervention after another state has intervened on the anti-democratic side.
Many international legal scholars would support a right of counterintervention on the democratic side, but would add a corresponding right, mutatis mutandis, of counterintervention by other states on the anti-democratic side. But the Principle of Non-Intervention in Civil Wars adopted by the Institut de Droit International permits counterintervention "only in compliance with the Charter and any other relevant rule of international law." A corresponding right to intervene on the anti-democratic side does not comply with Article 1 of the charter setting out the purposes of the United Nations. It does not comply with Vattel’s ancient rule that "to assist a detestable tyrant . . . would certainly be a violation of duty." To uphold the natural human rights of all peoples to self-determination and free elections open to all candidates, it makes sense to interpret the charter and other rules of international law to bar outside military aid to the anti-democratic side in a civil war under any and all circumstances.
However, the point is not of much practical importance. If the democratic states restrict themselves to counterintervention under the formulation set forth above, the issue of a right to counterintervene on the anti-democratic side will never arise. While anti-democratic states sometimes justify their intervention on the ground that other states have previously intervened on the opposite side, these claims are usually as far-fetched as the Soviet claim that the United States and Pakistan had intervened first in Afghanistan. In our time, anti-democratic states have rarely waited to intervene in a civil war until after other states have come to the aid of the democratic side.
Some will argue that this formulation of the right to counterintervene is merely a democratic mirror image of the Brezhnev Doctrine. It is not. Under the Brezhnev Doctrine, the Soviet Union asserts the right to prevent any "socialist" state by force from leaving the "socialist" camp. This asserted right does not depend on the existence of a civil war or on prior military assistance by other states to the insurgent side. It contradicts the universally accepted right of any people to rebel against a tyrannical regime in order to create a democratic one. It overrides the human rights of self-determination and free elections open to all candidates. The conditional right of counterintervention I have described would do none of these things.
Could we justify the legality of current and proposed American interventions under the foregoing principles? We could clearly justify our military aid to the Duarte government. We could justify furnishing military assistance to the Afghan freedom fighters, although their own commitment to create a democratic government in Afghanistan may require further demonstration. We could justify military assistance to the Nicaraguan contras, provided they establish their credentials as an indigenous pro-democratic insurgency and we publish our evidence of the regime’s anti-democratic intentions and the aid it has long been receiving from the Soviet bloc. (Without such evidence before it, the World Court may well hold our past actions unlawful.)
While our general support of Philippine forces for external defense would not be affected, we would have difficulty justifying military assistance to the Marcos regime for specific use against the rising Philippine insurgency, since evidence is still lacking as to significant foreign assistance to the insurgents, the anti-democratic nature of the insurgency, or even the regime’s own commitment to democratic values. Whether we could justify aid to the National Union for the Total Independence of Angola (UNITA) insurgent forces in Angola would depend on whether the incumbent regime can fairly be branded as significantly less democratic than UNITA itself. Aid to the Kampuchean rebels would present a similar question.
The proposed right of counterintervention, of course, would not entitle the intervening state to decide who will take power after the civil war is over. At most, the counterintervening state could assist in the holding of free elections under appropriate international supervision. At that point, the right of counterintervention would end.
In proposing this conditional right of counterintervention, I, of course, do not suggest that it should be automatically exercised every time the specified conditions exist. We cannot apply John Kennedy’s soaring rhetoric—"Let every nation know, whether it wishes us well or ill, that we shall . . . support any friend, oppose any foe, in order to assure the survival and the success of liberty"—every time some people’s liberty is threatened anywhere in the world. As we subsequently learned in Vietnam, we need first to weigh whether we are financially and logistically capable of delivering enough assistance to have a significant effect on the outcome, and whether the perceived threat to our vital interests is grave enough to sustain public support for a policy that may risk American lives.
We must also weigh whether our action is likely to provoke a shooting confrontation with the other nuclear superpower. When all these factors were taken into account, we did not provide military assistance to the Hungarian and Czech peoples in the 1960s, and in a similar crisis I doubt that we would give military aid to the Polish people today.
I would also suggest other precautions before exercising this right of counterintervention. I agree with McGeorge Bundy that we ought not to intervene covertly. In our robust kind of democracy, we are not capable of hiding our role in operations of any significant size. When they are exposed to public view, they are much harder to justify on legal principle, because there is an implicit admission of illegality in having tried to conceal them in the first place. Moreover, the Bay of Pigs and the Angolan intervention mission suggest that our military and intelligence skills do not run toward covert operations. We are rather clumsy in planning and executing surprise surgical strikes or in providing covert support to an insurgency. We are far more skillful in open applications of overwhelming force that leave a large margin of error for bad luck, equipment breakdowns and premature news leaks.
To maintain the credibility of our commitment to the democratic side, we also need to be discriminating in identifying which side, if either, has the better claim to that label. While there will always be problems in drawing such a line, our traditions and values and the U.N. Declaration of Human Rights provide clear benchmarks: respect for civil liberties and free elections, and commitment to democratic methods of government. If we base our right to counterintervene on these values, we should limit its exercise to cases where the two sides differ significantly in their respect for democracy.
In the real world, neither side of a civil war is likely to be the clear-cut choice; the opponents usually come in shades of gray. The color of a regime can be judged by its conduct in office, but it is much harder to judge an armed insurgency professing a democratic goal. The insurgency usually consists of a broad spectrum united only by a common desire to overturn the repressive regime. After gaining power, its colors often change. The French Revolution evolved into the Terror and then into a military empire. The provisional democratic government that replaced Tsar Nicholas became a dictatorship within a matter of months. The Administration views the pattern in Nicaragua after Somoza’s fall as similar, but if the contras overturn the Sandinista government with our help, we may some day be equally disappointed in the successor regime. Anti-communism cannot always be equated with democracy. A legal theory based on the human right of democracy cannot support aid to any regime or group, however repressive, simply because it is on the anti-communist side of a civil war.
Finally, we should be especially cautious about engaging American armed forces in a sustained combat role. Ever since Vietnam, when we first saw the ugliness of a foreign war on our television screens, we have developed a profound aversion to getting into shooting wars. Our standards of necessity grow higher every year. Of course, they continue to cover the defense of our territory and that of our treaty allies against an external invasion. But it is highly doubtful whether they extend to fighting in any other nation’s civil war.
The principle of allowing counterintervention on the democratic side accommodates Vattel’s rules to the modern rejection of the just war and to the provisions of the U.N. and OAS charters that we are treaty-bound to respect. It is faithful to the fundamental values of self-determination and free elections. It leaves adequate room for intervention on the democratic side when these values are put at risk by outside assistance to the other side. In cases where the specified conditions are not met, a prudent democratic superpower ought not to be intervening anyway.
Postscript. Although this article deals with intervention in civil wars, it may be worth a brief postscript to consider the legality of using force on the territory of another state to rescue hostages or to take reprisal against hostage-takers, whether or not that state is involved in a civil war. These questions were squarely presented by the hostage crises in Iran in 1979-80 and in Lebanon earlier this year.
In a 1952 article, Sir Humphrey Waldock, later president of the World Court, laid down three conditions for the legality of using force on the territory of another state in cases such as hostage-taking:
(1) an imminent threat of injury to nationals;
(2) a failure or inability on the part of the territorial sovereign to protect them; and
(3) measures of protection strictly confined to the object of protecting them against injury.
A rescue mission to Teheran or Beirut would satisfy all three of Waldock’s tests, but a reprisal action would flunk the third test. It would also run afoul of the World Court’s 1949 ruling in the Corfu Channel case. A reprisal action would be lawful, however, if the permission of the territorial sovereign were obtained. An arguable case for legality might also be made if the territorial sovereign adopts the hostage-taking as its own act, as in Iran, or if a state of chaos exists and the nominal government is incapable of apprehending and punishing known participants in the hostage-taking, as may be true in Lebanon. But it is at best an arguable case.
The United States would be free, however, to indict identified hijackers and hostage-takers under American law, pursuant to the Anti-Hijacking Act of 1974 and the Hostage-Taking Act of 1984, and to seek their extradition from any country in which they can be found. Neither statute would have applied to the Teheran incident, which was not a hijacking and occurred before the Hostage-Taking Act of 1984. Both statutes would apply to the recent Beirut incident, but unfortunately we have no extradition treaty with Lebanon. However, as a party to The Hague Anti-Hijacking Convention of 1970, the government of Lebanon would be under an international legal obligation to find and try the identified hijackers in Lebanon or deliver them for extradition to the United States.