McNair Paper Number 33, Chapter 6, January 1995 (Continuation)
Foreign governments are free to accept pronouncements of the executive authority with which they deal as expressive of the will of the state.(Note 31)
Since the end of World War II, the United States often has placed naval forces near the scene of armed conflicts where our bias and intent to influence the belligerents were clear. Not all belligerents have refrained from extending the hostilities to U.S. forces. Yet the Nixon Doctrine, while purporting to shift the responsibility for protecting friendly countries from the forces of United States to those of the endangered countries, continued to assert that the United States would be involved in the defense of allies and friends. At the time of its pronouncement, President Nixon summarized the doctrine:
Unless a major power intervened in a Third World conflict, the United States should not commit its combat forces. We should provide military and economic aid to friendly states in whatever amounts necessary to defeat Soviet-supported insurgents, but the country under attack must undertake the responsibility for providing the troops to mount its own defenses. If a country cannot mobilize the capability and the will to fight after receiving our aid and training, sending our own troops to do the fighting would at best provide only temporary success. Once we withdrew the enemy would take over.(Note 32)
Close examination of this statement could lead to the conclusion that the United States was embarking on a course of unneutral conduct in situations where states had already resorted to combat but that were deemed inappropriate to risk the involvement of U.S. forces as a matter of policy. If that unneutral conduct increases the risk of being drawn into the conflict, this policy would prove self-defeating. Therefore, the Nixon Doctrine, viewed in light of global interests and interdependence, really didn't change anything for naval forces.
In essence, the doctrine is not far from what George Washington said about where the United States should get involved--if you make the assumption that treaties reflect interests.(Note 33) Further, once a treaty is concluded, keeping good faith with it is in the national interest, so even if U.S. ground forces were employed more conservatively, the doctrine could not be expected to foster a change in traditional naval force employment patterns, or the naval policy they reflect. Naval forces are frequently used in presence--or suasion--missions off the coasts of warring nations where our ground forces are not involved.
The full impact of the dangers of the Nixon Doctrine may be seen in light of U.S. actions to influence the Indo-Pakistani War beginning in December 1971. In that situation the legal distinctions between the applicability of the law of war and the law of peace were clear, yet the policy of the United States continued to either ignore or accept the threat of being drawn into war.
As Elihu Lauterpacht pointed out, the Middle East and India-Pakistan conflicts were clearly understood to be "war" and as such, the states involved have dealt with the law of war in technical terms including the operation of prize courts.(Note 34)
The animosity between India and Pakistan dated back to their inception when British colonial rule ended in 1947. On 9 August 1971, the Soviets entered into a 20-year friendship pact, a kind of alliance, with India.(Note 35) Pakistan was allied with the United States by virtue of membership in the South East Asia Treaty Organization (SEATO).(Note 36)
These alliances became a connection that threatened world peace when India declared war on Pakistan in December of 1971.(Note 37) The U.S. response to this situation, according to then National Security Advisor and later Secretary of State Henry Kissinger, was not only related to SEATO and the Nixon Doctrine, but also to Kissinger's efforts at the time to open a more productive relationship with China. So from the U.S. viewpoint, motivation to influence the outcome was driven not only by our alliance commitment but perhaps even more by policy concerns in support of broader U.S. interests.(Note 38)
From the Indian viewpoint, however, the traditional support of the United States evidenced by the existence of the SEATO link with Pakistan, and the concurrent redeployment of U.S. warships from their stations off Vietnam to the Indian Ocean in response to the war was a matter of grave concern. This was especially true once the United States declared, by leaking high- level meeting minutes to the media, an intention to "tilt"(Note 39) in favor of Pakistan.
India, an ally of the Soviet Union, had formally declared war on an ally of the United States, Pakistan. As Grotius explained alliance relationships, this might have been interpreted by India to have already brought the United States into war. Consider his example: "Upon war being declared upon Antiochus, there was no occasion for a separate declaration against the Aetolians, who had openly joined Antiochus. For . . . the Aetolians had, by that act voluntarily brought war upon themselves."(Note 40) Henry Kissinger acknowledged that this aspect of the situation was consciously considered and even called it to the attention of India in an attempt to dissuade them from further action.(Note 41) The administration apparently decided to cast caution to the winds: "The war led to record deployment levels (in the Indian Ocean) . . . 14 combatants and auxiliaries for the (United States), 26 for the Soviets."(Note 42)
The official "tilt" of the United States assumed the restraint of India, a tremendous act of faith. Again the United States openly acted with partiality against a state formally at war for the purpose of achieving its policy objectives. Such U.S. interference would certainly violate her impartiality even in the absence of direct military assistance to Pakistan. The United States forces, therefore, must have been considered a potential threat by Indian forces. India might have even considered the need to take defensive action against such a threat without waiting to absorb the first hit. Ignoring the broader policy considerations that presumably restrained India, the best tactical option available to India might have been to conduct a pre-emptive strike against the ENTERPRISE task force. Such action was mentioned but it is impossible to determine the degree of plausibility attached to such a drastic alternative by India.(Note 43)
Was this a real option for India? The United States must not have thought so, but an examination of the facts calls that assessment into question, at least from the tactical standpoint. Sea denial forces available to India could have threatened or in a worst case scenario partially removed, at least temporarily, the combat capability of the U.S. naval forces on station and, in the Indian view, charged with executing the "tilt". Consider the following situation which did result from Indian action:
On the night of 3-4 December there was an engagement about twenty miles from Karachi in which the Pakistani destroyer KHAIBAR was sunk by Styx missiles fired from an OSA-class boat. On that night the Liberian-registered S.S. VENUS CHALLENGER, whose estimated date of arrival at Karachi was 5 December, disappeared. On 5 January her wreck was discovered by the Pakistani navy 26.5 miles from Karachi. She lay in shallow water on an even keel with derricks visible about six feet above mean high tide, and bore evidence of having been struck forward of the bridge by a missile, with consequent heavy damage. Subsequent investigation showed that she was lost on the night of the sinking of the KHAIBAR.(Note 44)
In times past, the loss of the S.S. VENUS CHALLENGER, which went with no survivors, would have been sufficient to threaten world peace--remember the U.S. responses to losses of neutral merchant ships before the two world wars. But she was sailing under a Liberian flag of convenience. The threat to the freedom of the seas and the property loss were insignificant to Liberia who could have done little militarily were she moved to indignation. This phenomenon contributed to the speed with which Indian naval forces proved successful. "By December 6 or 7 . . . . Both East and West Pakistan had been effectively blockaded."(Note 45)
The danger of unintended escalation was real: "An Indian show of force would have exacerbated an already tense situation, since Indian FOXTROT-class submarines were, as far as U.S. observers knew, indistinguishable from those that the USSR had already deployed to the scene."(Note46)
The conflict witnessed Soviet-built missile boats, operated by Indians, attacking a Pakistani destroyer at night in an assault so indiscriminate that a civilian merchant ship was accidentally destroyed as well. The danger to U.S. ships was not imaginary. Direct combat between the super powers was a real danger that could have resulted from an accident of war. The alliance and neutrality issues addressed worsened the danger for an accidental or misinterpreted engagement being considered purposeful by providing a logical rationale.
The experiences of PANAY, LIBERTY, and PUEBLO were the result of essentially unarmed warships, operating close to a "war," being exploited to the advantage of smaller states that believed the United States would not attack them in reprisal. (Perhaps we will always wonder if STARK should be added to this list).(Note 47) Kissinger wrote,
However unlikely an American military move against India, the other side could not be sure; it might not be willing to accept even the minor risk that we might act irrationally. It was the best means to split the Soviet Union and India. Moscow was prepared to harass us; it was in our judgment not prepared to run military risks. Moving the carrier task force into the Bay of Bengal committed us to no final act, but it created precisely the margin of uncertainty needed to force a decision (not to dismember West Pakistan) by New Delhi and Moscow.(Note 48)
"Irrational" is right. That very uncertainty is a double-edged sword. While the United States might righteously and correctly regard its naval forces in these situations as the cutting edge of the sword of freedom, the other side has a sword that is getting sharper all the time. Today technology has allowed smaller states to obtain potent "sea denial" forces that could raise the stakes of the naval demonstration game to unacceptable levels. We must now frequently endanger our forces to gain their deterrent effect.(Note 49) The "decision" we forced instead could have proven "the risk of irrational action" had India confronted the U.S. forces instead of (presumably) being influenced by them. Remember the local power equation could easily have been evaluated by India to favor India, especially at sea. And the "margin of uncertainty" must have burdened the minds of the naval unit commanders on the U.S. ships as well.
In mid-1983, U.S. forces that had been sent into Lebanon earlier as part of an international peacekeeping force were being attacked more and more. The intention of their deployment was to stabilize the situation, deterring future fighting by bringing the power and influence of the U.S., British, French, and Italian governments to bear. Actually, it was U.S. forces again asserting neutrality attempted to influence the outcome of a civil war and hundreds of servicemen died or were wounded in a failed effort.
Forces in opposition to the Gemayal government in Lebanon already considered their issues important enough to kill and die for. Outside efforts to stabilize the situation frustrated those ends. The situation was very confused and involved irregular and factional forces opposing the largely Christian government. By the end of August, Druse, Shi'a, and Syrian statements reflect that they considered the U.S. Marines part of the "enemy." They thought the United States had taken sides with the government forces. Then, in September, in response to stepped up sniping against the peacekeepers and artillery attacks against the Lebanese Army, President Reagan authorized the use of naval gunfire support and naval air power to protect the Marines at the Beirut airport. By 13 September, U.S. neutrality was entirely forsaken when the State Department announced the President had authorized Sixth Fleet assets to support the Lebanese Army.(Note 50)
A few isolated voices questioned . . . whether the nation might be imperceptibly passing an important watershed in Lebanon.
"They are now apparently there for another purpose," Senator Cranston warned. "The marines' peacekeeping mission has expanded to involve their tacit support for one of the factions . . . in a civil war of decades duration.". . . overthrow of the Lebanese Government would be a severe jolt to American diplomacy. . . . Loss of the Government in Lebanon would cause moderate Arabs . . . to see little benefit to siding with the (United States).(Note 51)
U.S. forces were now a belligerent element. Presidential decisions regarding tactical responses to political concerns altered the legal situation. The stated role of U.S. forces changed from neutral peacekeeping (in Lebanon) to support of partisan objectives deemed to serve broader U.S. national interests.
This significant change was not fully understood. Two weeks later Speaker of the House O'Neill said, "As long as I'm here, (an undeclared war) will never happen again".(Note 52) Congress had just voted to permit the Marines to remain in Lebanon for another 18 months, until after the 1984 elections. Despite the analysis and debate that attended this important decision, the Speaker apparently still believed the United States was neutral. The implication may be that the U.S. Government was playing domestic political games. Actually, an 18-month commitment might have served the U.S. foreign policy well by preventing a divisive debate from taking on a partisan character in the upcoming U.S. presidential and congressional campaigns. The extended authority was a sincere effort to ensure the safety of our peacekeeping forces at Beirut airport. The policy decisions were seen in positive terms by U.S. decisionmakers, but the legal implications of the policy decisions apparently escaped their full consideration.
This is not surprising. After all, the multinational peacekeeping force was originally put into Lebanon in the belief it could deter fighting among Lebanese factions. It was not unreasonable for the same decisionmakers to assume the force was capable of deterring attacks on itself. While not unreasonable, the assumption was as wrong as was the belief it could deter the factions in the civil war. The U.S. forces were now not only complicating efforts to achieve objectives by opposition factions operating against the Lebanese Government, they were also actively working against those objectives. They had taken sides in the conflict and they were going to help deny the goals of those opposing the government. The implications of this would be fully recognized by the United States only in retrospect.
General Paul X. Kelley, then Commandant of the Marine Corps, still believed, as did so many others, that the Marines were not facing "imminent hostilities,"(Note 53) but some did question the wisdom of the evolving U.S. policy in Lebanon. One particularly astute commentary came from columnist James Reston on 18 September, over a month before the infamous attack:
In the confusion between the President and the Congress over war powers, it has been scarcely noted that in the chaotic military situation in Lebanon, the President has in a way delegated or at least risked his authority, not to the Congress, but to the local marine commanders around Beirut.
Having ordered the marines into the Beirut battle zone, where they are taking casualties, he has instructed them to call for guns and bombers on the U.S. warships off shore to knock out their attackers when, in their judgment, this is necessary--without checking with their military and political superiors in Washington.
But as the attackers are within range of U.S. warships close to the Beirut shore, so are the U.S. warships in range of the Syrian missiles, supplied by the Soviet Union, and the French missiles, now in Syrian possession, that blew British ships out of the water in the battle of the Falklands.(Note 54)
On 8 September, U.S. naval gunfire support was used for the first time in the Lebanon conflict. Fire was called in to defend the Marines against shelling from Druse batteries just south of Beirut. On 17 September, ships fired on targets in the Syrian controlled area of Lebanon for the first time. Syria immediately responded with a warning that Syrian losses would be answered, and orders were issued to Syrian forces to return any fire directed at them. Even more significant was the fact that the 17 September bombardment of antigovernment militia batteries in the Syrian area was the first time U.S. forces were not firing in self-defense; the batteries attacked were not shelling U.S. positions but the Lebanese Defense Ministry. On 19 September another major change occurred. The Lebanese Army undertook an attack against Druse militia and Palestinian forces near the town of Suk al Gharb. When the tide of battle turned against the Lebanese Army, VIRGINIA and JOHN RODGERS closed the beach to a range of a little more than a mile and delivered intense covering fire to minimize Lebanese Army losses and prevent a demoralizing defeat.(Note 55) These actions in the latter half of September put the United States squarely into the war in Lebanon, if for no other reason because, "In naval warfare, the public vessels of a neutral state must refrain from rendering services of any kind to belligerent . . . units."(Note 56)
The regular forces of Syria and the organized forces of the various militias were unquestionably exercising belligerent rights against the de jure government of Lebanon. Further, the Gemayal Government was not, treating those forces as domestic criminals but as belligerents. Whether a "war" was believed to exist or not the incidents of armed force were certainly being handled under the "law of war." Consequently, observance of belligerent and neutral rights and duties was appropriate. And, regarding U.S. forces, the legal guidance provided to, but perhaps not consulted by, fleet units at the time indicated that: "If a neutral state does not observe the principle of impartiality, the belligerent influenced by such nonobservance may consider itself to be no longer bound by its obligations toward the neutral."(Note 57)
All the facts entitled the offended belligerents to believe the United States had abandoned neutrality, or at least its protections. After the 23 October truck bomb attack on the Marine Barracks in Beirut killed over 200 marines and sailors, investigators concluded:
The mission . . . was implicitly characterized as a peacekeeping operation, although "peacekeeping" was not explicit in the mission statement.
Alert and Execute Orders were carefully worded to emphasize . . . a noncombatant role.
By the end of September 1983, the situation in Lebanon had changed to the extent that not one of the initial conditions upon which the mission statement was premised was still valid. The environment clearly was hostile. . . . The image of (U.S. forces), in the eyes of the factional militias, had become pro-Israel, pro-Phalange, and anti-Moslem.
After (U.S. forces) engaged in direct fire support of the (Lebanese Army), a significant portion of the Lebanese population no longer considered the (United States) as a neutral.
Following the U.S. action at Suk al Gharb, hostile acts against (U.S. forces) increased, and the Marines began taking significantly more casualties.(Note 58)
The facts of the situation soon led the Syrians to assert (through actions) their inherent right of self-defense. They must have considered U.S. reconnaissance of the area of Lebanon under Syrian control as an effort to develop intelligence, including targeting data, regarding their positions. This is especially understandable in light of U.S. naval forces supporting the Lebanese Army against groups Syria must have considered as "allies" and delivery of naval bombardment inside the Syrian controlled area. Consequently, the Syrians made good their threat to retaliate and fired upon U.S. carrier-based aircraft on reconnaissance sorties.
Heavy anti-aircraft fire met reconnaissance aircraft over Syrian held territory on 3 December 1983. The United States launched a major strike the following day to remove the anti-aircraft batteries. Mutual assertions of self-defense, as in the cases of GREER, MADDOX, and TURNER JOY, again led the United States into open combat in "peacetime." In this case, two U.S. aircraft were lost, one naval officer was killed, and another was taken prisoner.(Note 59)
At the President's news conference 2 weeks after the engagement he was asked about the status of the captured naval officer. The President answered, "The Syrians claim he's a prisoner of war when there is no declared war between nations. I don't think that makes you eligible for the Geneva Accords."(Note 60) The answer indicates the changes in the legal situation were still not fully understood by the President at the end of December. How, then, could U.S. commanders on the scene understand their legal situation and its tactical implications? Moreover, even if the status of neutral and belligerent rights did remain in question, the 1949 Geneva Conventions, as has been explained, protect the victims of any scale of armed conflict (especially once it has an international character). Therefore, it was in the U.S. interest (or at least the interest of the U.S. naval officer held prisoner) to hold the Conventions applied in this case. By doing so Syria would be held responsible for compliance with the specific standards of treatment guaranteed by the Geneva Conventions regarding any U.S. prisoner they held or would hold.(Note 61)
When Congress repealed the Gulf of Tonkin Resolution in January 1971, they also began a process that resulted in the War Powers Resolution. This was characterized as an attempt to recover that body's constitutional power to declare war--but that power was never lost. In essence, if not by intent, Congress sought control over the President's role as Commander-in-Chief.(Note 62) The War Powers Resolution was passed over the veto of President Nixon in late 1973.(Note 63) The intent was to limit the President's authority to place the United States in a situation identical to war by exercising his powers as Commander-in-Chief, and by-passing Congress, which is charged by the Constitution with responsibility for declaring war.(Note 64)
There is no intention to explore the legal questions regarding "war powers" under Constitutional law in this work. The Act, however, does indirectly affect the question of the President espousing a U.S. policy claiming to be "neutral" whenever possible and is examined in that context.(Note 65) In fact, the limitations imposed by the War Powers Resolution are more psychological than legal. The authority to order military action is vested in the President as Commander-in-Chief. If nothing else, the War Powers Resolution increases domestic pressure on the Commander-in-Chief to avoid acknowledging, for as long as possible, that hostilities could draw U.S. forces in the area into the conflict. To do so would engage the congressional position on war powers authority and the ensuing debate would limit policy options for coercive diplomacy and potentially erode the credibility of actions taken or threatened. The Act causes Executive Branch reluctance to acknowledge a U.S. departure from impartiality as quickly as belligerents might perceive it. If partiality increases the threat to naval forces, failure to recognize or acknowledge it only exacerbates the situation.
In 1979, President Carter moved an enormous naval force into the North Arabian Sea in response to the situations in U.S. hostages crisis in Iran and the Soviet military intervention in Afghanistan's civil war to stabilize the recently installed Communist government there. Those U.S. forces were sustained in place for almost a decade, expanding and deploying further north into the Gulf of Oman, astride the Straits of Hormuz, and into the Persian Gulf as escorts for U.S. (and ultimately other) shipping when the Iran-Iraq war threatened to expand to trading partners and neighboring states. Though rarely characterized as such, these latter operations were in defense of U.S. and the international community's rights to the freedom of the sea and the freedom to use international waters by neutral vessels even in time of war.
In later events in the region in 1987 and 1988, reluctance to admit that hostile action against U.S. forces might be imminent (and trigger the provisions of the War Powers Act) apparently increased the danger to U.S. forces in the Persian Gulf. Admiral William J. Crowe, then Chairman, Joint Chiefs of Staff, told a Senate subcommittee:
There were "a number of times last year" when "we considered doing things we thought would be wise to protect ourselves," but on advice from Defense Department lawyers the measures were not undertaken to avoid War Powers Resolution limitations.(Note 66)
Congressional agreement or acquiescence had been obtained before the conduct of combat operations, without overtly engaging the provisions of the Act.
In Desert Storm, after obtaining authority for coalition forces to use all necessary means to support the collective self-defense of Kuwait from the U.N. Security Council,(Note 67) President Bush won a close vote in the Senate, with the House concurring, gaining domestic authority to act to enforce the Security Council decision.(Note 68) The congressional votes constituted the legal equivalent of a declaration of war in support of the Security Council resolutions that had the character of an ultimatum for Iraq. The congressional action gave the President the moral benefit of a unified demonstration of national will in the hope Iraq would back down and withdraw from Kuwait. Equally important, the President was given the flexibility to act in a manner that did not jeopardize the safety of coalition forces. Pre-disclosure of the timing of the initial attack on Iraq's forces and command and control infrastructure might have diminished its phenomenal success and increased the extremely minimal casualties suffered.
But we must remember that domestic consensus is not always available. Even in the case of blatant Iraqi aggression against Kuwait it was narrowly achieved, even though military action could gain unprecedented consensus in the U.N. Security Council. It certainly damages morale, and possibly much deeper interests, when internal government disputes over the distribution of constitutional powers make the business of those sworn to defend the Constitution more dangerous.
In October 1973, President Nixon sent the carriers JOHN F. KENNEDY, FRANKLIN D. ROOSEVELT, and INDEPENDENCE as mobile airfields for the short-range aircraft used to rearm Israel after that country was shocked and severely hurt by the surprise Egyptian attack of 6 October. NATO allies of the United States, to preserve their neutrality, refused to allow U.S. cargo planes on rearming missions to land at bases in their territory (as Israel's defense is not included in the North Atlantic Treaty). During the airlift, an Egyptian destroyer fired on the U.S. merchant vessel LA SALLE in the Bab el Mandeb.(Note 69)
In 1982 the Reagan Administration struggled to prevent an escalation of hostilities after an Argentine amphibious operation gained military control of the Falkland-Malvinas Islands. Partiality might have been a better public posture for the United States from the outset. The Argentines might well have been more disposed to negotiate a solution if they understood the United States would support British operations to regain control of the islands. When the Congress voted to support Great Britain and declared the United States "cannot stand neutral,"(Note 70) partiality was no longer in question, no matter what the Reagan Administration had in mind. This congressional "decision" gave rise to accusations of perfidy from the Argentines who believed the United States had never been impartial, even when earlier offering its "good offices" to attempt a resolution of the conflict through diplomacy.(Note 71)
Some states allow their animosity for the United States to erupt into violence even when they are not engaged in open combat with another belligerent. The experiences of PUEBLO and the Navy EC-121 were eruptions of the still simmering Korean War. The Gulf of Sidra incident, in which Libyan fighters were shot down after unsuccessfully attacking U.S. Navy carrier aircraft to assert their sovereignty over the waters of the Gulf, is another case involving competing rights and claims resulting in mutual self-defense.
In June 1982, a Vietnamese vessel, without warning or apparent purpose, attacked two of three U.S. warships about 70 miles off the coast of Vietnam. The engagements were brief but the action lasted 8 hours. TURNER JOY, the victim of the Gulf of Tonkin incident in the same waters 18 years earlier, was slightly damaged during the initial firing when she approached the contact to identify it, but sustained no casualties. The vessel fired two red flares across TURNER JOY's bow and immediately opened up with automatic weapons fire. Rounds penetrated the ship's side entering the wardroom. LYNDE McCORMICK was fired upon when she closed to assist and returned fire with her .50-calibre machine guns--but purposefully fired over the vessel. BENJAMIN STODDART was present but was not engaged. Neither she nor LYNDE McCORMICK was damaged in the action.
These incidents all demonstrate willingness by unfriendly states to use force against the United States, or more precisely, unsuspecting U.S. targets.(Note 72) Nevertheless, in comparison to the first 25 years after World War II the post-Vietnam era was relatively calm until 1983.
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