106

LEGAL ASPECTS OF COUNTERINSURGENCY

J.F. Hogg

I think you will agree that the title would describe that Mr. Castro engaged for this morning's talk is odd to say the in in Cuba as a "civil war"? How about least. You have studied, thought, talked Ho Chi Minh's efforts-aren't they a about and listened to various facets of civil war? Are North and South Vietnam the problem of counterinsurgency-the two different countries, or different political factors, the sociological, eco­ segments of the one country? Further, nomic, and even the military factors. are there not sizable numbers of South But what on earth does law have to do Vietnamese fighting with the Viet Cong with this subject? against the South Vietnamese govern­ Some of you will have remembered ment forces? Are those not elements of your experience during the Interna­ a civil war? Could we not describe the tional Law Study earlier this year and Santo Domingo situation as a civil war? perhaps have jumped to the conclusion In short, doesn't the exclusion of civil that, without lawyers, the subject of war from consideration in the subject of counterinsurgency would be too clear­ "counterinsurgency" exclude much of it needs someone to muddy the waters, the most important material to he con­ to cast doubt and confusion where sidered? And, in any case, what reason understanding and clarity existed be­ could the authors of the. definition have fore. had for drawing a distinction hetween Let me illustrate. Take the definition an insurrection and a civil war? Isn't the of insurgency provided you last Wednes­ problem one of subversive aggression or day from the Dictionary of [United wars of liberation? And can't you have a States} Military Terms.! ''Insurgency­ war of liberation taking the form of a A condition resulting from a revolt or civil war just as well as some other insurrection against a constituted gov­ form? ernment which falls short of civil war. There, you see, I told you that a In the current context, subversive in­ lawyer and a legal analysis would make surgency is primarily communist in­ no positive contribution to your study spired, supported, or exploited. "Notice of the suhject of counterinsurgency. that we are supposed to be talking Only a lawyer could he so distracted about a revolt or insurrection which and fail to see the real problem. As with falls short of civil war. What is a civil the case of Mike the hurglar who was war, about which we are not to talk? A caught red-handed and hailed into search of the same dictionary provides court, help from lawyers should be no definition of these two words. Do declined. When the judge asked Mike you suppose that the man on the street why he had refused to be defended by a 107 lawyer, Mike said: "It's too late now­ is that the Russians and Chinese are the time when I needed a lawyer was attempting to make significant use of when I was making my plans to rob the legal-type arguments for psychological joint. If I had had a good lawyer then, purposes. These legal-type arguments you would never have caught me with are being addressed to a wide variety of the goods. " audiences-first to their own citizens, Now therein doth lie a moral. It is then to the citizens of countries to be frequently forgotten that one of the subjected to "wars of liberation," then most significant functions that a lawyer to the citizens of uncommitted coun­ can perform is to counsel his client and tries, and last but certainly not least, to advise him about the plans and conduct our very own citizens. Within our own which his client intends for the future. country there is considerable debate Another important function is to serve concerning the legality of our policies. as an advocate of his client's position­ The casual reader of The New York to present the case in the best and most Times and other papers cannot fail to favorable light possible. have noticed ,the significant emphasis to If this morning's subject were to send editorials as well as in full-page adver­ us off in pursuit of abstract rules of tisements of arguments addressed to the international law, derived from treaties legality or illegality of our position in or customary law, in the fond hope that Vietnam. Arguments as to the legality by adequate research of the precedents or illegality of our actions in Santo at the same time so plausible and so Domingo have touched off a consider­ convincing that even Mr. Lin Piao or Ho able debate in our own Senate. Chi Minh would recognize the justice of Provision of a legal framework for our cause-then indeed, law has no our policies of counterinsurgency has useful function to perform in this area. become, then, a serious task. We need to If, however, we start looking for a present our own policies as clearly, consistent framework in which to couch persuasively, and forcefully as possible our response to the concept and prac­ to our own people. Lack of persuasive tice of wars of liberation, if we start argument supporting our actions will looking for the most persuasive argu­ only lead to detraction from our ments in which to dress our policies of political and military effort within our counterinsurgency, if before taking own country. A fortior~ we need a counterinsurgency action we pause to persuasive legal framework in which to consider the relative plausibility and set our actions for the benefit of other persuasiveness of arguments in support states, and even for the. benefit of which, after the act, it will be possible people behind the iron curtain. Psycho­ to make-then indeed, legal analysis logical warfare is important, and I am may have a more useful function to suggesting to you, that the existence of perform in this area. a persuasive legal argument in support But, you will be saying, if that is the of our political and military actions is function to be served by legal analysis as an important element in that psycho­ applied to counterinsurgency, how does logical operation. legal analysis differ from psychological Khrushchev, Che Guevara, and Lin warfare? How indeed! Look again, at Piao have not created a concept devoid the military dictionary definition of of appeal and superficial justification in "counterinsurgency." Law isn't men­ this plan of "people's war" or "wars of tioned, but psychological action is. To liberation." The concept is carefully whom is that psychological action to be calculated to appeal to the notion, addressed? historically so important to us, that the Part of my case to you this morning right of revolution belongs inherently to 108 every people against an unjust govern­ for revolution. First might COme a ment. Just look at the way in which the propaganda campaign-in the presses, military dictionary attempts to dis­ over the radio, at diplomatic con­ tinguish between insurgency and subver­ ferences, perhaps in the United Nations. sive insurgency_ We cannot, with any Perhaps part of this program, possibly degree of plausibility, reject the concept separate and distinct from it, might be of the freedom of a people to revolt. threats as to what action might be taken Immediately therefore, the concept of if the revolution is not allowed to "war of liberation" puts us somewhat blossom. Next might come the receiving on the defensive. Revolution per se and training of revolutionaries, nationals cannot be unlawful. What then, are the of the country involved. Is the training other identifiable element or elements of "students" in Cuba "interventionary which, when added to revolution, make aggression" towards Venezuela? Next, it unlawful or subversive? might come the supplying of materiel to We may be tempted to respond with the revolutionary group, varying from the military dictionary-that element is literature and food to arms. Next might "communist inspiration." But such come the sending of a few "volunteers" "communist inspiration" may be hard to help organize and train the rebels­ to define, and even harder to prove and next, permission to use Cuba as a haven verify as a matter of factual report. for the indigenous rebel forces-and so Furthermore, to many peoples of the on. Where, in this list of actions, does world, and perhaps to a number of our subversive aggression begin? own people, freedom to choose a gov­ Let us pause for a moment, and look ernment, or the right of self-determina­ briefly at the teachings of classical tion, may well involve the right of a international law. Has a practice de­ people to choose if they wish, and that veloped which can be appropriately wish is democratically established, a used today as a yardstick in our battle government communist in form. For us with wars of liberation? simply to take a position, therefore, The cornerstone of traditional inter­ that all revolution is lawful, save only national law is the concept of state that which is communist inspired, may sovereignty-that is to say that, for the be a position substantially devoid of most part, a state is entitled to manage plausibility or persuasiveness, not only its own affairs free from direction or for world audiences but also for some of intervention from outside states. This our own. Perhaps we must look further particular concept is enshrined in for those elements which, in addition to Article 2(7) of the United Nations revolution, are to make such revolution Charter: "Nothing contained in the into subversion or subversive aggression. present Charter shall authorize the If the world were free of lawyers, you United Nations to intervene in matters may say, anyone could tell me that the which are essentially within the domes­ distinctive factor making the revolution tic jurisdiction of any state .... " At the subversive is intervention from outside, very next level of abstraction, this prin­ the export of revolution by one country ciple requires that each state and the to another. Exported revolution is just people of that state be free to determine one specific form of aggression. their own form of government, free But is the problem quite that simple? from any such external interference. What actions constitute the "export" of Said Professor Friedmann, one of the revolution? Consider for a moment a most prestigious writers on international few among the possible wide range of law in this country, only last year: activities which China, Russia, or Cuba " ... any attempt by a foreign power to might take in relation to a country ripe interfere with internal change, either by 109 assisting rebels to overthrow the legiti­ tween those concerned. The role mate government, or by helping the of the United Nations in these incumbent government to suppress a conflicts will essentially be that of rcvolution is contrary to international a neutral forum for mediation. In law."2 Now I want you to note this case of major intervention by out­ statement carefully. First, it makes clear side powers, the U.N. may have to what the consensus of writing for centu­ be called in to keep the opposing ries has made clear-that for an outside in terven tionists at arm's state to lend assistance to a group of length ....3 rebels is to interfere illegally in the Says Professor Falk of Princeton Univer­ internal affairs of the state in revolt. sity: Second, it makes assistance to the gov­ ... internal war rages in South ernment in power resisting such revolt Vietnam, initiated by a series of equally as illegal as interference or rather clandestine North Vietna­ intervention. Third, what is proscribed mese guerrilla interventions and is "interference with internal change," a countered by strident American phrase pregnant with triplets of am­ military intervention in apparent biguity. What this particular quotation violation of the 1954 Geneva does not say is that while states and Accords. Interventionary policy state departments for centuries have accounts for the most intense been uttering these propositions, many forms of violent conflict present of the same states have, with some in the world today. degree of regularity, been conducting their practice against very different cri­ The point is not to condemn these teria. The authors of the Holy Alliance interventions, but to suggest that a in 1815, the Emperors of Russia, foreign policy that depends upon Austria, and the King of Prussia, essayed unilateral military interventions a somewhat more practical statement of by one nation in the affairs of policy by claiming the right to interfere another usually violates clear in the internal affairs of any country norms of international law .... threatened by revolution against the The willingness of the United legitimate sovereign. You will recall that States to adopt illegal interven­ the Monroe Doctrine was formulated as tionary tactics, under the pressure a response to that policy. of the cold war, jeopardizes our Now let me illustrate what some of moral commitment to a foreign our own American authors are currently policy of law-abidance, a commit­ ment abstractly reiterated by our doing with this material. Says the same 4 Professor Friedmann in another recent statesmen from many rostrums. article: Instead, he suggests this solution: Since many of the internal con­ But international peace is not flicts, such as the internal dis­ only threatened by internal war­ orders in Cyprus or the Congo, fare. Peace is also endangered by have international implications certain repressive social policies and may lead to the intervention which, if allowed to remain of antagonistic powers on dif­ unaltered, will produce serious ferent sides of the conflict, non­ outbreaks of domestic violence. intervention on the part of out­ This prospect prompts the central side powers is the most desirable contention of this essay-that the international policy which should, United Nations should be au­ as far as possible, be ensured by thorized on a selective basis to nonintervention agreements be- coerce domestic social changes. 110 This authorization is what we reworking of the classic statement made refer to throughout as legislative by Friedmann. We cannot afford en­ intervention.5 dorsing a policy which may preclude It is interesting that, according to his assistance to a government in power in argument, what would be prohibited an effort to combat incipient stages of intervention by one state becomes legal subversion. At the same time, the state­ when done in the name of the United ment of criteria for such assistance again Nations. involves a monumental problem-to give The reason for giving you these such support for the purpose of lengthy quotations is this: With respect, countering subversion may at the same I suggest that these scholars are striving time have the effect of impeding a truly for some "neutral" principles by which indigenous movement for social reform. the affairs of the world can, in the If some of our writers have been future, be peacefully regulated. The more concerned with standards for a search for such scholarly principles may law-abiding world than with developing be important, but it fails substantially as a psychological response to the concept an exercise - in psychological warfare, of people's war and wars of liberation, just as it apparently fails in an estimate what have the Russians been doing? In a of political motivation in the world text on international law written in today. Moscow and obligingly translated by the' But notice how this search for neu­ Russians into English and distributed tral principles can distract attention here in 1962, is to be found a discussion from a point of cardinal importance._ If of the so-called Principles of Peaceful intervention in internal affairs of a state Coexistence. The Principles represent is illegal, what facts must be established the latest Russian use of legal analysis to constitute proof of such intervention, for psychological purposes. You may, and what remedies are available once a for instance, be surprised to learn that: case of such intervention has been estab­ Important principles of Interna­ lished? Given a clear plan of action for tional Law such as the sovereign wars of liberation as .described by Lin equality of States, the self­ Piao, surely the obvious psychological determination of nations, non­ counter, and surely a point of scholarly interference in the internal affairs concern, focuses on development of of other countries, territorial in­ criteria or standards for measuring ex­ tegrity, peaceful coexistence and ternal meddling, and on remedies for cooperation between States re­ violation of those standards.6 And I gardless of their social systems may say that the search for a remedy and the conscientious observance that does not at the same time kill the of obligations assumed became patient, is a task of monumental propor­ the guiding principles of the tions. world's first socialist State in its Let me say again, however, that it is international relations.7 important that such criteria be de­ You may also be surprised at the follow­ veloped and argued, not in the belief ing expansion on this theme: that Lin Piao will be convinced and will The recognition of each people's change his mind, but rather as neces­ right to be master in its own saries to answer foreign propaganda, or country-that is, its unconditional for that matter, for our own domestic right itself to decide its own social consumption. Given the threat as de­ and political system and to deter­ fined by Khrushchev, Guevara, and Lin mine its internal and foreign Piao, I would also suggest that our policy without any interference psychological response must involve the whatsoever by other States-offers 111 wide opportunities for fruitful struggles in Asia, Africa, and Latin peaceful and mutually advan­ America. 1 0 tageous cooperation between None of this, I take it, is intended to States, regardless of differences in amount to interference in the internal their social systems. In this lies affairs of another state. the importance of the principle of But enough of these relative abstrac­ nonintervention in the present­ tions. Let us come down to a couple of day world.8 specific illustrations of the importance Professor Lipson of Yale has offered an of legal argument in support of our especially shrewd evaluation of the political and military decisions and psychological use by the Russians of actions. Let us see something of the use these concepts of peaceful coexistence. 9 to which argumentation, hoth foreign He suggests that they are skillfully and domestic, puts legal-style analysis blended to appeal first to the nationalis.t and something of the kind of response aspirations of colonial and under­ which is required of us. In the mail the developed countries to make their own other day, I received an "Appeal to the way free, not only politically, but also Lawyers of the World" from the Inter­ economically. Next they are designed to national Association of Democratic appeal to audiences in the United States Lawyers, whose headquarters is in Brus­ and other western countries who would sels. This constitutes: like to see a lessening of tension, accom­ ... a solemn appeal to our col­ panied probably by disarmament or leagues in the whole world urging reduction in military effort. Again, they them to condemn the numerous appeal to the Russian audience because and grave violations on interna­ of the ideological split with China. tional law hy the war waged Thcse are words of peaceful competi­ against the Vietnamese people by tion with the West, rather than head­ American imperialism. strong willful risk of nuclear war. In short, the Principles of Peaceful Co­ (I) International law is violated existence are a masterful concoction of hy the systematic intervention of psychological warfare. But notice the the U.S.A. in the international gap between the promise and the fact. affairs of South Vietnam; hy the Again, our counter seems to lie in installation of governments of formulating the extent of that gap and their choice, that are neither en­ giving it factual documentation. joying the confidence of the Of course, the authors of this people, nor being appointed Russian text could not foresee that democratically, in contravention Lin Piao would get a little out of of point 12 of the final declara­ step in his speech, "Long Live the tion of the Geneva Conference Victory of the People's War." Says held in 1954 which was solemnly he: agreed to by the representative of In the final analysis, the whole the United States, Mr. Bedell cause of world revolution hinges Smith, in the name of his govern­ on the revolutionary struggles of ment. the Asian, African, and Latin American peoples who make up (2) International law is violated the overwhelming majority of the by the military aggression world's population. The socialist launched by the United States countries should regard it as their against Vietnam; by the landing in internationalist duty to support South Vietnam of foreign troops the people's revolutionary that include U.S. nationals and 112

units from S.E.A.T.O. or example, the first paragraph I read you. A.N.Z.U.S. countries, committing That we have a large army in Vietnam is acts of war also against the Demo­ clear, and that the presence of such an cratic Republic of Vietnam, army has a substantial effect on the equally in contravention of point internal affairs of Vietnam is equally 12 already mentioned. clear. Is this "intervention"? Well, you say, our response rests on the fact that (3) International law is violated we were requested to help hy the when in the course of this aggres­ Vietnamese government. But then sive war the United States is de­ notice that the same paragraph suggests stroying schools, libraries, pa­ that our host or inviting government is godas, churches and hospitals in fact our own puppet, which has not under the false pretext of pur­ been "democratically appointed" in ac­ suing military aims; when the cordance with the Geneva Accord of American troops are making use 1954. You suspect that the Ky regime of horrible and prohibited was, in fact, not appointed by a 51 weapons such as noxious gases, percent or better majority of every napalm, yellow phosphorous adult entitled and willing to vote in bombs, dumdum bullets. All these South Vietnam. So to counter this, you inhuman methods were banned by begin an argument that, in an under­ the Hague Conventions of 1899 developed and undereducated country and by other international norms, or community, full-flowered democracy e.g., the Versailles Treaty of 28 is a factual impossibility. Besides, you June 1919 (art. 171), or the say, look at Ho Chi Minh. Now this Geneva Agreement of 17 July second argument is interesting. With the 1925. audiences to which this material is presented, the argument that the other (4) International law is violated side is doing the same bad things, is when prisoners are submitted to peculiarly unpersuasive. The first argu­ humiliating and degrading treat­ ment is the one whieh needs to be ment by the American troops, or presented, but notice the technique. are savagely killed without judg­ The charges are so framed, that an ment nor the legal guarantees accurate response becomes so detailed, recognized as obligatory by all intricate, and tied in with-legal argumen­ civilized nations as well as by art. tation that the audience may be lost in 3 of the Geneva Agreement of 12 the middle of the answer. August 1949; or when the same The aim of this material is to con­ American troops massacre the fuse. And the answer or psychological civil population and submit them counter is not a point by point refuta­ to barbarous tortures. 11 tion of their thesis-rather, it should or And so on-the hand behind the pen is even must be found in a coherent clear. policy. We should be in a position to Now, you are probably saying, that is explain what that policy is-that it has a a concoction of lies to which our measure of objectivity-that is to say response should be simply that­ that it is not an action adopted ad hoc, answering such a document involves no but is the application of principles exercise in legal analysis and applied established as such and consistently psychology. To a considerable extent advocated and followed by us in. our you would be correct. But notice the foreign relations. Such a policy requires subtlety with which some of the issues focusing on the concept of "war of are woven in. Let us just take as an liberation," upon the fact of external U3 interference with the political balance in expressed pretense that the South Vietnam by Ho Chi Minh and the United States stands for the sub­ Chinese-this involves the development stitution of the rule of law for the of criteria, mentioned earlier, against jungle law of the military claw in which we can judge and establish such meeting threats to the peace of interference, and it requires the develop­ the world, has done great damage ment and advocacy of remedies to be to our reputation for reliability in taken in the face of such interference international affairs. Our good violative of our proclaimed standards. reputation in world affairs previ­ Law is the antithesis of arbitrary action ously held by millions of people -and legal analysis and argumentation, in the underdeveloped areas of the to be persuasive, must be founded in world has been tarnished by our consistency of principle and, as far as unjustified warmaking in south­ 1 possible, in application of such princi­ east Asia. 2 ple. These are words of the Honorable Now, you are probably saying, who Wayne Morse spoken on the floor of our needs to respond to a position like that Senate. It seems we have something of a of the International Association of missionary job to do in our own coun­ Democratic Lawyers? It is, and this try! must be patent to the reader, a tissue of Now, for a second illustration of the lies. First, you are on notice that the importance of legal analysis, let us'look Russians are a eareful, calculating group, at another recent counterinsurgency who do not do many things without situation-the Dominican Republic. apparent object. They think this kind of Remember that the thesis is this: Our propaganda is worthwhile-be careful of political and military actions need to be underestimating their judgment. Re­ explained by an argument of their member the message of this counter­ legality presented as persuasively as pos­ insurgency program-that the battle is sible. one for people, and the people of that What we had, obviously, in the phrase are being exposed to this kind of Dominican Republic, was an incipient argumentation. That it needs answering political revolution. I take it that there in foreign audiences can best be illus­ was and is little doubt that substantial trated by referring to the extent to numbers of citizens of the Dominican which some of the arguments therein Republic were so dissatisfied with their advanced have received a measure of existing government that they proposed support and sympathy within our very to resort to revolution as an answer. Our own country. Let me read to you a problem was equally obvious. The exist­ short passage from a speech delivered on ence of a fighting civil war provides an September 23,1965: excellent opportunity for communist In Vietnam, we have totally trained, and perhaps even exported, flouted the rule of law, and we leaders to penetrate and then take over have flouted the United Nations one of the forces in the revolution. The Charter. This lip service given by communist handbook is simple and the United States to the United direct in ordering party members to Nations and its international law capitalize, however and whenever pos­ provisions and procedures has sible, on issues that are politically done our country great injury divisive. Their ability to so capitalize among many international lawyers can be illustrated all the way from around the world. Our waging an Cuba, even to perhaps some of our undeclared war in southeast Asia university campuses. But, and this is in flagrant violation of our oft- important, we were not in a position to 114 deny that there was an indigenous revo­ government previously in power and the lution-that people of the Republic rebel group. were asserting their freedom, as a last The cornerstone of our political and resort, to revolt against what they con­ military decision is clear. We are all too sidered to be an unfair and unrepresen­ well acquainted with the communist tative government What then, could we pattern of infiltration and subversion, make by way of legal argument to and for our purposes, it does not much explain that our intervention was not matter whether that infiltration is ef­ inconsistent with or destructive of this fected by Dominicans or by communist inherent right of revolution, while still operatives brought in from other coun­ taking steps of military intervention tries. The thing that counts in the end is deemed by our government necessary to simply this: Does the government ulti­ prevent communist subversion of this mately achieving power answer directly indigenous revolution? Said Mr. Meeker, to communist centers? Is it subservient the Legal Adviser to the State Depart­ to communist control, and will it take ment: communist steps to prevent any future We landed troops in the Domini­ unfortunate revolt or attempt a demo­ can Republic in order to preserve cratic selection of government? In short, the lives of foreign nationals­ will the establishment of such govern­ nationals of the United States and ment preclude for the future a free many other countries. We con­ demonstration of political choice by the tinued our military presence in people of the country? the Dominican Republic for the The selection of a cornerstone of additional purpose of preserving legal analysis, of the most persuasive the capacity of the OAS to func­ argument in explanation of this policy, tion in the manner intended by is much more complex. Our statement the OAS Charter-to achieve and repetition of patterns of communist peace and justice through securing behavior fails to persuade many of our a cease-fire and through reestab­ own citizens, let alone many Latin lishing orderly political processes American audiences. Moscow says they within which Dominicans could did not have anything to do with a choose their own government, take-over of any revolution, and we, as free from outside interference.13 the active intervening parties, are sud­ Now this statement of our position is denly cast with the burden of proof to not without its difficulties, in terms of establish as the price of legalizing our psychological persuasion. Notice first, position, that, in fact, the revolution its apparent inconsistency with the con­ was being substantially affected or con­ cept of ultimate freedom of revolt. This trolled by infiltrated communist opera­ appears to say that if you revolt, we tives. That is no mean burden of proof. reserve the right to step in and prevent On the other hand, if (and I am not the fighting so that a new government necessarily saying we should), we may be chosen democratically, i.e., by adopted the following proposition as supervised voting, after debate and dis­ our neutral principle or policy, we could cussion of the problem and the pro­ avoid the foregoing burden of proof posed party platforms. This indeed, is problem. That principle might be: Wher­ the advocacy of a principle considerably ever possible, widespread civil war and adapted from that of the ultimate free­ bloodshed should be forestalled by in­ dom to revolt. Notice also, that any tervention of a police force designed to such "police" intervention may have a keep the peace while at the same time significant effect on the relative strength laying a basis for future democratically in any subsequent election of the organized and supervised elections. We 115 could then rely simply on the outhreak In contrast, Under Secretary of State of suhstantial civil war and widespread Mann has said: hloodshed and hreakdown of the essen­ When in other words, a Commu­ tial processes of government For such a nist state has intervened in the principle to he effective, however, we internal affairs of an American have to he in a position to argue that state hy training, directing, fi­ this is not a policy conceived on the nancing, and organizing indige­ spur of the moment to take care of this nous Communist elements to take specific incident-in short, that it is a control of the government of an policy we plan on adhering to con­ American state hy force and vio­ sistently. And if this policy were to he lence, should other American selected as such principle, it must he states he powerless to lend assis­ capahle of withstanding analysis and tance? Are Communists free to criticism. intervene while democratic states Without looking up any official docu­ are powerless to frustrate that ment on statement, I could give you the intervention?! 5 gist of a Russian response. But, in this From the point of view of legal instance, that is unnecessary since we analysis and persuasive argument, hoth have vocal criticism of the policy in the these statements are interesting. The Dominican Repuhlic right here at home. Senator's statement hrands our action as Our policies or principles are heing put "illegal," without amplification. That to the test of analysis and criticism right such amplification could he provided is here, as well as hefore foreign audiences. clear. The introduction of our army into Senator Fulhright has said of our the country of another state calls for actions there: the clearest of supporting arguments to The prospect of an election in escape the charge of illegality. And the nine months, which may conceiv­ fact that a political faction in the ahly produce a strong democratic Dominican Repuhlic decided to invite government, is certainly reassuring us adds a little, hut not very much in on this score, hut the [fact] re­ the circumstances, to our position. On mains that the reaction of the the other hand, Secretary Mann's analy­ United States at the time of acute sis assumes that communist "indoctrina­ crisis was to intervene forcibly tion" of certain political rehels, who and illegally against a revolution, might very well have heen natives of the which, had we sought to influence Repuhlic, constituted intervention it instead of suppressing it, might which, impliedly, authorized us to take have produced a strong popular a counterremedy in the form of an government without foreign mili­ armed landing. Perhaps, in the long run, tary intervention. the most persuasive argument runs along lines suggested hy Mr. Mann, rather than Since just ahout every revolu­ along lines of a principle of preventing tionary movement is likely to hloodshed and facilitating free elections. attract Communist support, at Suffice it to say that we need a least in the heginning, the ap­ coherent and consistent policy. Senator proach followed in the Dominican Fulhright underlines the importance of Repuhlic, if consistently pursued, such a policy consistently applied when must inevitahly make us the he says that potential revolutionaries in enemy of all revolutions and Latin America may regard our action in therefore the ally of all the un­ the Dominican Repuhlic as an explicit popular and corrupt oligarchies of declaration of our position in favor of the hemisphere.! 4 status quo government, no matter how 116

bad it may be, and against revolution. subversion. Not every act of subversion And so, we come back full circle to the can be allowed to taint a revolutionary problem: how to formulate a policy to group and we must refine a policy best support our political and military tailored to identify and brand those decisions taken in the context of coun­ aspects of wars of liberation which seek terinsurgency-how to distinguish in to climb on the back of an indigneous that policy between freedom of revolu­ movement. tion and proscription of wars of libera­ Second, to be as persuasive as pos­ tion and people's war. sible, our policy must seek to share That problem is reported to be under counterinsurgency responsibility, as far consideration in our discussions with and as widely as possible. By way of Latin American countries, as late as last illustration, the function of a lawyer in Thursday. The New York Times of that the Department of State would have day! 6 carries a story of Mexican views been fantastically easier if the force on a proposal for collective Latin which went into the Dominican Repub­ American action in the event of com­ lic had been an OAS force, sent there plete breakdown of order and authority pursuant to a resolution of that organi­ in one of the OAS states. zation, and in implementation of a Fortunately, this morning, I have the stable and consistent policy against in­ luxury of criticizing the statements and surgency formulated by that organiza­ writings of others, without any accom­ tion. Such a sharing of responsibility panying responsibility for defining requires that our policy be consistent policy goals in this area. There are, then, not only with our own domestic however, several factors which will, in ethic, but consistent, as far as is pos­ my opinion, continue to affect the sible, with corresponding ethics outside search for most effective policies and the communist countries. We must legal analyses to counter the threats recognize that in these other countries, posed by wars of liberation. which in many cases are backward and First, the persuasiveness of any legal underdeveloped, revolution continues to analysis is important to our domestic play an important function in change population. The ability to offer a clear and reform of government. Our policy and consistent purpose, rationale, and cannot condemn revolution as such, demonstration of its application to any even when accompanied by bloodshed, current fact situation will have signifi­ nor can it condemn revolution merely cant impact on the domestic support on the grounds that communist groups which political and military decisions have joined in with it. receive from our own population. For Third, that policy must bring sharply this reason, such purposes and policies into focus not only the problem of must be consistent with our domestic identifying what constitutes illegal inter­ governmental ethic. That ethic clearly vention through communist subversion, believes in a right of revolution, and in but also the ingredients of appropriate the right of a people to choose their remedies for any such violation of the own form of government. This means established policy. freedom from communist subversion, Fourth, we must recognize that con­ but it also means freedom from United sistent application of this policy is States support of unpopular and dicta­ important, and that departures from it, torial regimes. Our counterinsurgency to meet the stresses of ad hoc situations policy deals with stability of govern­ of the moment, may be very costly in ments, but it must be so framed as to the long-run effectiveness of the psycho­ distinguish, as far as is possible, between logical purpose. indigenous revolution and communist Fifth, we must continue to recognize 117 that such a policy does serve a psycholog­ standards to govern in a perfect law-abid­ ical purpose of importance hoth with our ing world, hut rather to meet the practi­ own people and ahroad. But the ohject of cal day-to-day threats posed, and to he having the policy is not to seek ahstract posed, hy wars ofliheration.

NOTES

1. Dictionary of United States Military Terms for Joint Usage, 1 Feb. 1964, JCS Pub. 1. 2. The Changing Structure of International Law, Columbia University Press, 1964, at p. 265. 3. "The Role of International Law in the Conduct of International Affairs," 20 International Journa~ 1965, p. 158 at p. 167. 4. "The Legitimacy of Legislative Intervention by the United Nations," in Essays on Intervention, ed. by RolandJ. Stanger, Ohio State University Press, 1964, at p. 34. 5. Ibid., at 33. 6. See, for instance, Fisher, "Intervention: Three Problems of Policy and Law," ibid., at 7 et seq. 7. International Law, Foreign Languages Publishing House, Moscow, 1962(?) at p. 9. 8. Ibid., at p. 114. 9. "Peaceful Coexistence," 29 Law and Contemporary Problems, p. 871 (1964). 10. Foreign Broadcast Information Service, 3 September 1965. 11. No attempt is here made to identify and correct the numerous false statements, misrepresentations and half-truths contained in the above statement. 12. 89th Congress, 1st Sess., September 23,1965. 13. "The Dominican Situation in the Perspective of International Law," VoL 53, Department of State Bulletin, 12 July 1965 at p. 62. 14. As reported in The New York Times, 16 September 1965. 15. "The Dominican Crisis: Correcting Some Misconceptions," VoL 53, Department of State Bulletin, 8 November 1965 at p. 73l. 16. 9 December 1965. ----'f'----