McNair Paper Number 33 Chapter 6, January 1995
The United States intervention in Lebanon (1958), Santo Domingo, and South Vietnam . . . as well as the Russian invasions of Hungary and Czechoslovakia, indicate the importance attributed to weak states in the world balance.(Note 1)
Hans J. Morgenthau thought the international system left "the enforcement of the law to the vicissitudes of the distribution of power between the violator of the law and the victim of the violation."(Note 2) The neutrality regime adopted at the Hague in 1907 was established for the purpose of giving smaller states the added strength of an unambiguous law to help withstand stronger belligerents. Actions that ignore the law detract from its strength if they go unanswered.
In fact, as discussed in chapter 1, enforcement measures in international law are automatic and immediate. They are imposed upon the violator not only by the victim of the violation but by the entire international community. The effect of this enforcement, however, is very often so subtle as to remain imperceptible to the determined violator, and while a definite price will be paid over the long term, it will not reverse the offense unless the victim is disposed to seek satisfaction promptly
and actively. So, the automatic enforcement will, in the case of a weak neutral offended by a belligerent of relative strength, neither restore peace nor deliver justice. This seems to be the true source of Morgenthau's complaint with international law. As we have seen, even the Charter called upon the coercive use of collective power, including military force, to guarantee the peace and serve justice. During the Cold War, however, the super powers avoided confrontation while there was an increasing tendency for smaller states, acting on their own or as surrogates of their super-power patrons, to take actions that threatened or broke the international peace. The behavior of the United States during this period almost never remained impartial for any significant period of time after hostilities broke out anywhere in the world. National interests dictated policy decisions not impartial in most situations.
In most armed conflicts between smaller states the belligerents found they had to endure the interference of some great power and hope that it would abstain from the introduction of combat forces:
The fact that the United States is sufficiently powerful to be able to pursue the course which it believes is correct without fear of being held to account by one or the other of the belligerents may make its position easier in practice but it does not dispose of the legal contradictions.(Note 3)
In fact, good policy (which is neutral as far as being noncombatant) partial to one or another belligerent remains inconsistent with the law of neutrality. So these same partial acts, regardless of their salutary effect, give rise to the right of diplomatic protest or even the right to act against the United States with force.
Being just and right is simply not the same as being neutral. While the United States has enjoyed benefits that in practice were identical to neutral rights, these were not rights but privileges arising from fear of more direct employment of U.S. power, not respect for the law of neutrality.
James Cable documents over 40 cases of the United States using of naval forces in implied or direct threats of military force to influence the decisionmaking process of some other state since the end of World War II. He believes that the desired results were forthcoming in over 75 percent of the cases.(Note 4) These cases have rarely resulted in attacks against U.S. forces, fostering an insidious sort of self-deception. It is easy to believe the law stands behind you when your efforts in a just cause are successful, but this is wrong thinking because the Hague neutrality regime does not deal in terms of justice. Its objective was to preserve the peace in third states. The laws of war and neutrality are structured to restrain the use of force in war, not to evaluate or regulate the justice of war.
More than self-deception and wrong thinking, the situations can be more objectively assessed by considering the perspective of those considered to be unjust or aggressors. To start with, they sometimes believe they are righting wrongs perpetrated against them and frequently believe their actions are just, or at least justified. They might view the United States as ignoring its commitment to observe neutral duties under Hague 1907 or violating its commitment in Article 2 (4) of the Charter to refrain from the threat or use of force.
It is illogical to consider the "successes" of the threat or use of force without acknowledging the costs as well as the benefits, especially true if the premise of the automatic enforcement of international law is understood. Because the entire international community participates in the enforcement of the law, the perception of the entire community regarding a state's compliance or violation of the law determines the enforcement. This may well result in inconsistent or bifurcated enforcement decisions by the community where its members' perceptions vary, and those decisions may be colored by extra-legal policy considerations that include issues from ideology to economics. While inclusion of such considerations may well diminish the objectivity of the enforcers of the law, they do not diminish the law itself (or the pragmatic rules of behavior which underlie the law).
The legal status of naval forces employed to influence the actions of another state in the post-World War II "peace" was examined by the International Court of Justice in the Corfu Channel Case.
The United Kingdom sent four warships through the channel between Corfu Island and the coast of Albania to assert the right of vessels to use those waters to transit between two areas of the high seas, a right Albania denied existed. The ships, anticipating trouble, were at battle stations as they transited the channel through Albania's territorial waters. Regarding the right of British ships to transit territorial waters at battle stations the Court said, "The intention must have (been), not only to test Albania's attitude but . . . to demonstrate such force that she would abstain from firing again on passing ships. . . . (T)he Court is unable to characterize these measures . . . as a violation of Albania's sovereignty." (emphasis added)(Note 5) The message here is that armed suasion is legally acceptable to assert the willingness to defend a right being challenged. The Court went on, however, to make clear such action was only legitimate when it did not violate another's legal rights.
During the transit, the destroyers H.M.S. SAUMAREZ and H.M.S. VOLAGE suffered severe damage from a freshly laid minefield. The United Kingdom then set afoot an operation to remove the mines from Albanian waters. The Court was less receptive to this use of naval forces:
The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to most serious abuses and as such cannot, whatever be the present defects in international organisation, find a place in international law. Intervention . . . from the nature of things . . . would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice itself.(Note 6)
So, while coercive force was appropriate to assert a right and protect its execution, intervention was held inappropriate (at least as a remedy of first recourse) to correct an injury already suffered. This would give the majority of U.S. naval demonstrations a clearly legal character under the law of peace. The situation is not as clear, however, when those same naval forces are used to demonstrate U.S. attitudes regarding an armed conflict, already underway or imminent, between third parties. In these cases the law of peace is rolled aside in favor of (or at least to operate in concert with) the laws of armed conflict that must be understood to include neutral duties. Of course, the United States remains free to behave partially, but from a legal standpoint a state behaving partially regarding belligerents cannot expect to be immune from attack.
The type of confusing situation that can ensue was illustrated during the Korean War, which, in the eyes of many, avoided the legal label "war" but was clearly conducted by both sides with little question that the rules of warfare were in operation.
The People's Republic of China asserted its forces were "volunteers," freed from the direction of the PRC, to attempt to preserve China's formal neutrality. Likewise, The New York Times reported an exchange at Panmunjon when the North Korean delegate defended the neutrality of the Soviet Union asking, "Is your side now at war with the Soviet Union? . . . If not, how can your side deny that the Soviet Union is a neutral nation apart from the two belligerents?" In fact, because there is no recognized intermediate status between peace and war, and the United Nations did not make the necessary policy decisions to respond to Soviet departures from their neutral duties, the Soviets did not become belligerents and remained technically neutral. The Chinese position, on the other hand, was a legal fiction because their forces were actively engaged in combat under the direction of, carrying out the policy of, and supplied by the government of the PRC.(Note 7)
The U.N. policy decisions that treated the PRC and the Soviet Union as neutrals during the Korean War responded only to the matters in the tactical and strategic spheres. The United Nations effectively limited the theater of combat, although the U.N. belligerents may have worked a legal fiction of their own.(Note 8)
So, the law remains as written, belligerents and neutrals alike incurring legal obligations that, if not fulfilled, give rise to rights of enforcement that include the use of force by the others. Policy decisions not to assert such rights do not change the law or diminish those rights.
Few ongoing situations are as complex as the Arab-Israeli Wars, which frequently have involved major power centers of the world but never in a more confused environment than the Suez Crisis. Traditional alignments were cast to the winds as national interests dictated British and French policies the United States opposed. And, while the Soviets threatened to enter the fighting against the British and French, the United States pondered how it might avoid taking the same course--and how to stop the Soviets.(Note 9)
In this environment ships of the Sixth Fleet found themselves conducting noncombatant evacuations during some of the heaviest fighting of the conflict from 31 October through 2 November 1956. The small fast transport BURDO, and the destroyers HARLAN R. DICKSON, and HUGH PURVIS went into Haifa as the Israelis engaged the Egyptian destroyer IBRAHIM EL AWAL just outside the port. The attack transport CAMBRIA also found herself off the Gaza strip evacuating United Nations truce observers whose position was under fire. And, in the worst situation of all, the attack transport CHILTON, the attack cargo ship THUBAN, and the destroyers CHARLES S. SPERRY and ALLEN M. SUMNER accompanying the amphibious force ship FORT SNELLING made an uninvited approach on Alexandria to conduct the evacuation there. Once inside the harbor nearly 40 air raids, opposed by heavy anti-aircraft fire, occurred in the immediate vicinity of these ships, with shells passing directly over CHILTON. Then, upon sortie on 2 November, during yet another air raid on the port, force commander Commodore Laing was confronted with taking over 4500 non-combatants through an inadequately swept minefield.(Note 10) Regarding his guidance the Commodore reported:
I'd had no instructions about shooting back and thereby upsetting the international applecart but good. I told Admiral Brown (Commander Sixth Fleet) I'd play that by ear. I am not sure that he had any instructions in the matter. It was one of damnedest international situations I'd ever heard about and I don't really think it has ever existed before. . . . If anybody got tough and gave me any more trouble than I was already having--like lead bullets--I was going to toss a few back and then go to sit around a long green table (at inquiry or court martial).(Note 11)
Fortunately, the ships were not directly engaged. If they had been, the Commodore apparently had the right idea about how to respond. It seems that Chief of Naval Operations Admiral Arleigh Burke had told Admiral Brown concisely, "If United States citizens are in danger protect them. Take no guff from anyone."(Note 12) It is worrisome that the guidance apparently was not shared with the on scene commander!
At his inauguration, President Kennedy asked that the United States might, "join in a new endeavor . . . a new world of law, where the strong are just and the weak secure."(Note 13) Exactly what the new president meant is probably lost to history, but his actions in office indicate he intended to offer U.S. strength to serve the (unneutral, not impartial) purpose of justice and thus secure a just world for the weak, even at the expense of peace. Three months later, on 20 April 1961, his brother Robert, the Attorney General, told the press:
The neutrality laws are among the oldest laws in our statute books. Most of the provisions date from the first years of our independence and, with only minor revisions, have continued in force since the 18th Century. Clearly they were not designed for the kind of situation which exists in the world today.(Note 14)
Reading between the lines here one sees Robert Kennedy making exactly the same kind of statement Mahan reportedly made at the 1899 Hague Conference. The United States, with global interests and perspectives, was no longer best served by a policy of strict neutrality.
A few days before the Attorney General's statement, the United States had witnessed from close range the decimation of an abortive invasion force on the beaches of Cuba at the Bay of Pigs. Planned during the previous administration, the invasion force had been trained and supplied by the United States. The CIA even promised the invaders that the U.S. Navy would protect seaborne forces.(Note 15)
A large U.S. task force was in place off the coast of Cuba when the invasion occurred, but President Kennedy refused to allow it to join the hostilities even long enough to rescue the forces it had escorted to the beach. When failure was clear, U.S. destroyers attempted to assist in an evacuation. In doing so they found themselves well within the range of Castro's guns, which were butchering the landing force. Only the destroyer EATON was fired upon. A Cuban tank took her under fire, shooting twice, missing both times--but not by much, the rounds bracketing the ship.(Note 16) Destroyermen understood that situation, and it was not good. Without significant maneuvering, only a mistake by the enemy gun crew could avoid a hit by the next round. Apparently, although President Kennedy would have been happy to have Castro removed from power by force by Cuban rebels, even with U.S. support, he was unprepared to go to war with Cuba openly. After hours of discouraging reports on the deteriorating situation, Kennedy denied another request from Chief of Naval Operations Arleigh Burke to use naval forces at the scene to help the invasion force saying, "Burke, I don't want the United States involved in this."(Note 17) Admiral Burke was greatly distressed and attempted to drive home the facts of the situation to his Commander in Chief by raising his voice and saying, "Hell, Mr. President . . . we are involved!"(Note 18)
Less than a year after Kennedy's death, U.S. forces were trying to prevent a Communist victory in South Vietnam through blatantly overt support:
Units of the Seventh Fleet were operating off the coast of Vietnam. Among other things, they were conducting an intelligence collection mission in support of the South Vietnamese. U.S. forces had never engaged the North Vietnamese. Then, on 1 August 1964, three North Vietnamese motor torpedo boats pursued South Vietnamese vessels into international waters. The North Vietnamese encountered U.S.S. MADDOX on a surveillance mission, made the false assumption she was directly supporting the South Vietnamese vessels, and proceeded to attack her. During the engagement MADDOX sank one of the patrol boats.(Note 19)
Three days later, a similar but much more confused nighttime incident occurred. MADDOX was again involved, but another destroyer, TURNER JOY, was the primary target of the somewhat questionable attack.(Note 20) Together these episodes became known as the Gulf of Tonkin incident. In response, the United States attacked targets in North Vietnam and plunged headlong into the tragic conflict that consumed the nation's energies, options, treasure, and young for the next decade.(Note 21)
Any similarity between the assumed attack on MAINE and the declaration of war against Spain in 1898, the arrest of crew members from DOLPHIN and the Senate resolution on the "Tampico Incident" justifying occupation of Veracruz in 1914; the attack on GREER by the submarine that believed it was firing in self-defense and the "shoot on sight" order in 1941; and the unclear attacks on MADDOX and TURNER JOY and the "Gulf of Tonkin Resolution" might be attributed to the fact the chief executive had abandoned impartiality in each of the cases. Some would say, these events, whatever their true nature, were handy tools for a President who knew beforehand what he wanted to do.
Before the United States could extricate herself from Vietnam she found mere suspicion of unneutral conduct by the United States was sufficient to move some nations to assert belligerent rights against her forces.
In June 1967, during an eruption of the Arab-Israeli War, the Israelis bombed, strafed, and torpedoed the electronic intelligence ship U.S.S. LIBERTY in international waters in the Eastern Mediterranean.(Note 22) "U.S.S. LIBERTY (AGTR-5) was an ear to the world in general and the United States in particular that had to be deafened if the Israeli plan (to defeat Egypt) were to succeed."(Note 23)
The mission of electronic intelligence was becoming an increasingly unacceptable reminder of U.S. partiality when conducted by ships close to belligerent shores, as the PUEBLO Incident would prove. The war in Korea has not ended. An armistice was signed to suspend hostilities. Legally the status is still undeclared war subject to the restrictions agreed to at Panmunjom. The partiality of the United States has never been in question there. U.S. forces stationed in South Korea are still committed to its defense.
In January 1968, North Korea attacked and seized the U.S.S. PUEBLO. PUEBLO was in international waters on an intelligence mission.(Note 24) The North Korean attack set in motion one of the most humiliating episodes of U.S. history and serves as fair warning of what could happen elsewhere because, as Professor Daniel P. O'Connell explained the situation, "North Korea exploited a local and momentary advantage against a victim otherwise incomparably more powerful."(Note 25)
The United States may have held the preponderance of power, but North Korea did not stand alone. In 1961 Pyongyang signed a mutual defense treaty with the Soviet Union, and in the opinion of Abram Shulsky, regardless of the Soviet assessment of the seizure of the PUEBLO, that country would have been hard pressed to permit the use of U.S. force against an ally so embarrassingly close to their own territory.(Note 26)
In response to the seizure of PUEBLO the United States sent ENTERPRISE, YORKTOWN, RANGER, and their supporting task groups to the North Korean coast:
Together they constituted the largest naval force assembled in response to a crisis since the Cuban missile crisis of 1962. . . . When the crisis began a (Soviet) scientific research/intelligence ship and a RIGA destroyer escort were on patrol in the Tsushima Strait, and these two units met the incoming ENTERPRISE task group as it entered the Sea of Japan on January 24. They were joined at the end of January by a SAM-KOTLIN (class) destroyer, an SSM-equipped KILDEN (class) destroyer, and an intelligence collector.(Note 27)
Despite the buildup, U.S. and Soviet units soon withdrew when it became apparent that North Korean concessions regarding PUEBLO or her crew would not be forthcoming. The only incident during the demonstration, after PUEBLO's seizure, was the ramming of a U.S. destroyer by a Soviet merchant vessel. Whether this was intentional is not known; the vessel, however, did not have the right of way and the incident followed a series of at least 11 violations of the rules of the road by Soviet vessels at the scene.(Note 28)
Campaigning in 1968, Richard Nixon said, "Unless the United States reacts . . . you are going to have more PUEBLOs" . . . less than three months after he entered the White House . . . the North Koreans shot down (a Navy EC-121 communications intelligence plane with 31 men aboard) killing all hands.(Note 29)
NEW JERSEY and a task force which from time to time involved a number of carriers entered the Sea of Japan a week later. North Korea ignored them and they eventually were withdrawn. Their influence on later North Korean decisions can neither be known nor discounted. (Note 30)