1 For an excellent discussion of this Charter principle and its contemporary importance, see Mcdougal, M. & Feliciano, F., Law and Minimum World Public Order 232 (1961)Google Scholar.

2 Such assaults by radical regimes are characterized by the use of covert attack and terrorism by a growing network of states, and by a growing specialization of function in these attacks. See Hosmer, S. & Wolfe, T., Soviet Policy and Practice Toward Third World Conflicts 102 (1983)Google Scholar.

Similarly, Professor Paul Seabury writes, on the basis of the Grenada documents, that “in the 1970s and 1980s new forms of fraternal collaboration evolved in the expansionist strategies of the Soviet Union, its satellites, and Soviet-dominated movements in Asia, Africa, and Latin America.” This collaboration consisted of the “intricate interweaving of Soviet, Cuban, Vietnamese, and Eastern European Communist activities of far-reaching scope.” The Grenada Papers 5 (P. Seabury & W. McDougall eds. 1984). See also Cline, R. & Alexander, Y., Terrorism: The Soviet Connection (1984)Google Scholar; C Sterling, The Terror Network (1981); and Senate Subcomm. On Security and Terrorism, 9 9 T H Cong., 1st Sess., State-Sponsored Terrorism (Comm. Print 1985) [hereinafter cited as State-Sponsored Terrorism].

3 There is an interlinked fact-finding (intelligence) and political-legal (verification) problem not dissimilar to that in arms control in policing compliance with the Charter prohibition on aggressive force. These issues have not been generally addressed on aggressive use of force. For arms control, see DeSutter, , Intelligence versus Verification: Distinction, Confusions, and Consequences, in Intelligence: Policy and Process 297 ( Maurer, A., Tunstall, M. & Keogle, J. eds., 1985)Google Scholar.

4 For a detailed description of this “radical regime assault” and its effect on the legal order, see Moore, , The Radical Regime Assault on the Legal Order June 10, 1985)Google Scholar (unpublished paper available from the Center for Law and National Security, the University of Virginia).

For a legal analysis of the Soviet doctrine of “revolutionary internationalism,” see, e.g., Rostow, , Law and the Use of Force by States: The Brezhnev Doctrine, 7 Yale J. World Pub. Ord. 209(1981)Google Scholar.

5 Res. II, OAS Doc. 40/79, rev.2 (June 23, 1979), adopted by the 17th Meeting of Consultation of Foreign Ministers by a vote of 17–2-5, reprinted in 79 Dep’t St. Bull. 58 (1979).

6 See Evans & Novak, Latin Dominoes, Wash. Post, Aug. 1, 1979, at A21, cols. 1–6.

7 See Bureau of Public Affairs, Dep’t of State, Current Policy No. 601, Review of Nicaragua’s Commitments to the OAS (1984).

8 See Nolan, D., The Ideology of the Sandinistas and the Nicaraguan Revolution (1985)Google Scholar. For additional discussion of the Marxist-Leninist credentials and background of the comandantes, see the six-part series in the Los Angeles Herald by Marie Linda Wolin on the Sandinista leadership, May 5–10, 1985. On early Sandinista ties to the PLO and training in PLO camps, see Dep’t of State, The Sandinistas and Middle Eastern Radicals (1985) [hereinafter cited as Sandinistas and Middle Eastern Radicals]. This unclassified report describes the participation of the Sandinistas in Middle Eastern aircraft hijacking and terrorism in 1970 and their continuing relations with these groups and states in the 1980s. (On Sept. 4, 1985, the day after the report was released, Tass angrily denounced it as a “new falsehood.”)

9 See D. Nolan, supra note 8, at 97–98. Auguste César Sandino, for whom the Sandinista Party was named, was not only a national hero but an anti-Communist as well. See id. at 16–18.

10 See Dep’t of State, Special Rep. No. 90, Cuba’s Renewed Support for Violence 5-6 (1981).

11 See Dep’t of State, Broken Promises: Sandinista Repression of Human Rights in Nicaragua 2 (1984) [hereinafter cited as Broken Promises].

12 International Court of Justice, Verbatim Record (Uncorrected) in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Sept. 13, 1985, at 44–45 [hereinafter cited as Verbatim Record]. For Christian’s book, see note 258 infra.

During the writing of this article, the ICJ heard oral argument from Nicaragua on the merits phase of the Nicaragua case. No final decision had been rendered either on the merits or on the jurisdictional and admissibility issues joined to the merits phase. Under Article 53 of the ICJ Statute, when one of the parties does not’ appear, the Court must satisfy itself “that it has jurisdiction” and “that the claim is well-founded in fact and law.”

13 Kirkpatrick, , U.S. Security arid Latin America, in Rift and Revolution: The Central American Imbroglio 329, 344 (H. Wiarda ed. 1984)Google Scholar.

14 This conclusion is, I believe, largely a myth. See, e.g., the contrary evidence, including Fidel Castro’s own rejection of the thesis, in Dep’t of State & Dep’t of Defense, The Sovietcuban Connection in Central America and the Caribbean 5–6 (1985) [hereinafter cited as Soviet-Cuban Connection].

15 This amount may be double the total given the Somoza regime in the preceding 20 years. See Kirkpatrick, , This Time We Know What’s Happening, Wash. Post,Apr. 17, 1983, at D8, cols. 2–6.Google Scholar

16 Harrison, , We Tried to Accept Nicaragua’s Revolution, Wash. Post,June 30, 1983, at A27, cols. 2–5 Google Scholar. Similarly, a litany chanted by Sandinista mobs, and apparently taught to schoolchildren, is “Here, there, the Yankees will die.” See CBS News, “60 Minutes,” Oct. 27, 1985.

17 Appendix to the report of the National Bipartisan Commission On Central America 45 (1984).

18 See Millett, , Central American Paralysis, in Foreign Policy on Latin America, 1970–1980, at 163, 168 Google Scholar (staff of foreign Policy eds. 1983).

19 The creeping imposition of totalitarian controls by the comandantes also seems to be inconsistent with Article 3(d) of the revised OAS Charter, which provides: “The solidarity of the American States and the high aims which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy.”

20 For a minimum list of violations, see Arts. 4, 7, 12, 13 and 23, American Convention on Human Rights, Nov. 22,1969, reprinted in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in The Inter-American System, OEA/Ser.L/V/II.60, Doc. 28 (1983) (Nicaragua became a party on Sept. 5, 1979); Art. 8(c), International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966) (Nicaragua became a party on Mar. 12, 1980). On Nicaragua’s restrictions on the press in violation of international law, see International Human Rights Law Group, Government Restrictions on the Press in Nicaragua: The State of Emergency and International Law (1983). According to this report: “The resulting restrictions on freedom of the press, before and during the State of Emergency, have gone beyond the boundaries set by international human rights law. . . .” Id. at 35.

Compare generally the Sandinista human rights shortcomings discussed in this paper with the Universal Declaration of Human Rights, GA Res. 217A, UN Doc. A/810, at 71 (1948); the International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

21 Although some scholars support a right of humanitarian intervention, I believe that the core issue in the Central American conflict is aggression and defensive response. For a general discussion of the right of humanitarian intervention, see, e.g., Moore, , Toward an Applied Theory for the Regulation of Intervention, in Law and Civil War in the Modern World 3, 24–25 ( Moore, J. ed. 1974)Google Scholar; Brownlie, Humanitarian Intervention, in id. at 217; and Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in id. at 229.

22 Consejo Superior De La Empresa Privada [COSEP], The Nicaraguan Revolutionary Process 1979–1985, at 5–6 (rev. ed. 1985) [hereinafter cited as COSEP].

23 See generally Broken Promises, supra note 11. The strategy of insurrection presented by the FSLN National Directorate in 1977, 2 years before the overthrow of Somoza, included a directive to “[c]reate a ‘broad anti-Somoza front’ based on the program that includes bourgeois/democratic opposition groups, but preserves the hegemony of FSLN power.” D. Nolan, supra note 8, at 78.

On the importance of establishing a “vanguard party” in Marxist-Leninist theory, see generally, e.g., Lenin, V., What is to Be Done? (1907)Google Scholar; Hammond, T., The Anatomy of Communist Takeovers (1975)Google Scholar; and Hunt, R. Carew, The Theory and Practice of Communism (1963)Google Scholar. The concept is antithetical to representative democracy.

24 See COSEP, supra note 22, at 8–9. One indication that the comandantes were in control from the first is the report that an early governing junta voted to direct Nicaragua’s UN representative to vote to condemn the Soviet invasion of Afghanistan, but that the Sandinista Party leadership simply ignored the junta and instructed the representative to abstain. See Nicaragua, : A Revolution Stumbles, Economist, May 10, 1980, at 22 Google Scholar.

25 See COSEP, supra note 22, at 8–14. This study offers an instructive comparison between the original goals of the revolution against Somoza, as embodied in the National Unity Government Program of June 18, 1979, and the subsequent performance of the comandantes.

26 See, e.g., Hecht, Senator Chic (Nev.), Grim record of Sandinista anti-Semitism, N.Y. Post,June 4, 1985, at 1, cols. 1–7 Google Scholar:

My desire to prevent the spread of anti-Semitism leads me to write about a government that so persecuted its Jewish population that the entire community was forced to flee the country it once called home. I speak not of Spain under the Inquisition, nor of Russia under the Czar, nor yet of Germany under the Nazis. I speak, rather, of Nicaragua under the Sandinistas. Most Americans—and even most Jews—remain unaware of the campaign of anti-Semitism that preceded the exodus of Nicaragua’s Jewish community from that country. But from my position as a member of the Select Intelligence Committee of the U.S. Senate I have had a unique opportunity to learn of their experiences. And as an American and a Jew, I have a duty to do all in my power to tell their story so that what happened to Jews in Nicaragua will not happen to the thousands of other Jews who live elsewhere in Central America.

See also Anderson, & Atta, Van, Flight from Nicaragua, Wash. Post,Aug. 18, 1985, at B7, cols. 2–5 Google Scholar.

The Department of State reported in 1983 as follows:

The 1978–79 insurrection and Government policies since 1979 led virtually all of the approximately 50 members of the Jewish community to leave the country. According to a report from a member of the Jewish community in Nicaragua, five Sandinista guerrillas attempted to set fire to the main door of the Managua synagogue in 1978. Since 1979, the government has expropriated the Managua synagogue and the property of many prominent Jews.. . . Prominent Jewish organizations such as the Anti-Defamation League of the B’nai B’rith charged in 1983 that the Nicaraguan Government was guilty of anti- Semitism.

Dep’t of State, 98th Cong., 2d Sess., Country Reports on Human Rights Practices For 1983, at 643 (Comm. Print 1984). See also Sandinistas and Middle Eastern Radicals, supra note 8. “The Sandinistas claim that they are not anti-Semitic, that Nicaragua’s Jews had a ‘bourgeois mentality’ which prevented them from adjusting to a socialist revolution.” Id. at 17 n.32. But see Brickner, , The Walls Are Not Smeared with Anti-Semitic Graffiti, Wash. Post,Sept. 21, 1985, at A21, cols. 1–4 Google Scholar. Brickner is in error in denying that the State Department’s 1983 country report, supra, “mentioned persecution of the Jewish community.” For a brief response to Brickner, see Press, , Sandinistas and Anti-Semitism, Wash. Post,Oct. 5, 1985 Google Scholar, at A17, col. 1.

27 See discussion in text at note 327 infra.

28 For further description of Sandinista human rights abuses and social and economic problems, see, e.g., COSEP, supra note 22; and the monthly human rights reports of the Permanent Commission on Human Rights of Nicaragua (CPDH) from June to November of 1984, reprinted in 131 cong. Rec. S1558 (daily ed. Feb. 20,1985). But see Americas Watch, Human Rights in Nicaragua: Reagan, Rhetoric and Reality (1985).

In the judgment of this observer, the Americas Watch effort is itself not free of the political bias it charges the administration with in human rights reporting. Human rights organizations serve a valuable function in disseminating hard-hitting (but sometimes overly zealous) exposés of suspect governmental activity. Americas Watch seems to apply this standard in its reporting on El Salvador and the contras but not on Nicaragua and the FMLN. Paradoxically, this lowkeyed reporting and propensity to overlook serious Nicaraguan and FMLN violations, and even to defend the Sandinista human rights record, may encourage more abuses. That the Sandinistas regard Americas Watch as largely supportive is suggested by a recent interview with Mateo Guerrero, former executive director of the Nicaraguan National Commission for the Promotion and Protection of Human Rights (CNPPDH). Guerrero said he was instructed in April 1984 by Alejandro Bendana, the Secretary General of the Foreign Ministry, who was responsible for monitoring the CNPPDH,

to take charge of a visit by Juan Mendez of Americas Watch, a human rights organization based in the United States which had written favorably about the Nicaraguan government’s human rights record. The CNPPDH was ordered to assist Mendez, providing him with a car and arranging his interviews with government entities such as the Supreme Court, the Ministry of Justice and the People’s Anti-Somocista Tribunals.

Office of Public Diplomacy for Latin America and the Caribbean, Dep’t of State, Inside the Sandinista Regime: Revelations by the Executive Director of the Government’s Human Rights Commission 2–3 (1985) [hereinafter cited as Inside Sandinista Regime].

According to a prominent Nicaraguan defector, the Inter-American Human Rights Commission and the nongovernmental Nicaraguan Permanent Commission on Human Rights placed repeated pressure on the Nicaraguan Government to provide information on human rights charges. Americas Watch, however, was apparently not perceived by the Government as providing comparable effective pressure on human rights matters. See Information Supplied by Alvaro Baldizon Aviles, at 1, 7 (unpublished paper on file at the Center for Law and National Security, 1985). See also Wright, , US Backs Nicaraguan Visitor and His Message, Minneapolis Star & Tribune,Oct. 17, 1985, at 4A, 6A Google Scholar, col. 5.

Sandinista human rights violations will be discussed further in part IV, “Human Rights and the War of Misinformation.”

29 This is a recent estimate made in the author’s presence by former U.S. Ambassador to Honduras John Negroponte, who is now Assistant Secretary of State for Oceans, Environment and Science.

The parallel with Cuban emigration is striking. Since Castro came to power in 1959, over one million Cubans, or almost 10% of the population, have fled, many to the United States. Silva notes that “Nicaraguan refugee children now outnumber refugee children of all other nationalities in [the Dade County, Florida] school system except Cubans.” H. Silva, The Children of Mariel 50 (1985).

30 Sandinistas and the Middle Eastern Radicals, supra note 8, at 6.

31 Id. at 17.

32 See Comandante Daniel Ortega’s statement abstaining on a resolution condemning the Soviet invasion of Afghanistan; in its 25 paragraphs Ortega repeatedly attacks the United States and Israel, but in only one paragraph does he even mention Afghanistan. UN Doc. A/38/PV.7, at 26 (1983).

33 See generally Dep’t of State, Report to Congress on The Voting Practices In The United Nations (1985).

34 See COSEP, supra note 22, at 42–43.

35 Pyongyang, KCNA in English, 0400 GMT, June 10, 1980, Foreign Broadcast Information Service [hereinafter cited as FBIS], North Korea, at D16 (June 12, 1980).

36 Kirkpatrick, supra note 13, at 349.

37 See COSEP, supra note 22, at 41 and 65 n.4. For other examples of the FSLN’s close alignment with the Soviet bloc, see id. at 42–43.

38 Baltimore Sun, Oct. 13, 1985, at 4, col. 5.

39 See Cruz, , The Origins of Sandinista Foreign Policy, in Central America: Anatomy of Conflict 95, 99 (R. Leiken ed. 1984)Google Scholar. This recognition pattern has recently been reversed.

40 Id. See also Rosenberg, , The Soviets and Central America, in id. at 131 Google Scholar; Leiken, , The Salvadoran Left, in id. at 111. In a UN speech onSept. 28, 1979 Google Scholar, Comandante Daniel Ortega said: “Chinese troops have attacked Vietnam. But the spirit of the Vietnamese people has been stronger than the murderous instincts of the . . . Chinese divisions. . . .” COSEP, supra note 22, at 40.

41 See generally Dep’t of State & Dep’t of Defense, Background paper: Nicaragua’s Military Build-Up and Support for Central American Subversion (1984) [hereinafter cited as Nicaragua’s Military Build-up]. See also Dep’t of Defense, Soviet Military Power 19–23 (1985).

42 Nicaragua’s acquisition of Soviet chemical warfare vehicles is particularly alarming in view of the recent Washington Post report that the Soviets may have transferred offensive chemical warfare capability to Egypt (during the 1960s while Egypt was a major Soviet client in the Middle East), Syria, Ethiopia and Vietnam, and persistent reports of use by the Soviets and client states of chemical and toxin weapons in Afghanistan, Laos and Kampuchea. See Oberdorfer, , Chemical Arms Curbs Are Sought, Wash. Post,Sept. 9, 1985 Google Scholar, at A7, cols. 3–4. See also Report and Recommendations to the ABA House of Delegates submitted jointly by the Standing Committee on Law and National Security and the Section of International Law and Practice (July 1985) (on the use of chemical and toxin weapons in Kampuchea, Laos and Afghanistan).

43 See Soviet-Cuban Connection, supra note 14, at 2.

44 See Soviet Military Power, supra note 41, at 121.

45 N.Y. Times, Feb. 20, 1981, at A2, col. 3.

46 In 1977 Nicaragua had an active-duty army of about 7,100—roughly the size of the Salvadoran Army, and half the size of the Guatemalan and Honduran Armies. By 1984, under the Sandinistas, Nicaragua had by far the largest army in Central America with roughly 62,000 active-duty forces, compared with El Salvador at 41,150, Guatemala at 40,000, Honduras at 17,200 and Costa Rica at zero. See Soviet-Cuban Connection, supra note 14, at 26. A recent Gallup poll finds that large majorities in Honduras and Costa Rica feel that the Sandinista buildup is a military threat and destabilizes their governments. Id.

47 On the militarization of Nicaraguan education, see Dorn & Cuadra, Schoolbooks, Sandinista- Style: Let’s See—If You Divide 6 Marxist-Leninists by 3 Grenades, Wash. Post, Aug. 18, 1985, at B5, cols. 4–6.

48 See generally D. Nolan, supra note 8.

49 Id. at 37.

50 See Dep’t of State, Special Rep. No. 80, Communist Interference in el Salvador 2 (1981) [hereinafter cited as Communist Interference].

51 Nolan writes of the process of unification in the Nicaraguan revolution: “Shadowy negotiations continued, with Cuban leader Fidel Castro playing a key role. Vanguard unification was Castro’s main condition for providing the Sandinistas with their first significant amount of material Cuban aid.” D. Nolan, supra note 8, at 97.

52 For details, see id. at 4–5.

53 See generally id. at 4–7.

54 See generally Kramer, , The Not-Quite War, New York,Sept. 12, 1983, at 41 Google Scholar. See also N.Y. Times, Apr. 20, 1959, at 1; DeYoung, , Another Cuba Under Sandinistas? , Wash. Post,July 24, 1979, at 1 Google Scholar.

55 See Kramer, supra note 54, at 41.

56 This reduction in arms shipments seems to be the kernel of truth in the partial picture presented by David MacMichael, a former low-level CIA contract employee who has been providing testimony on behalf of Nicaragua before the International Court of Justice, and those seeking to deny the Cuban-Nicaraguan secret attacks on neighboring states. See Wash. Post, Sept. 8, 1985, at A17, cols. 1–5.

57 Dep’t of State, Cuban and Nicaraguan Support for the Salvadoran Insurgency 5 (1982).

58 See Fahsen, Federico, Ambassador of Guatemala, Address at Symposium on Soviet Involvement in Central America at Georgetown University Sept. 10, 1984)Google Scholar.

59 See generally Dep’t of State & Dep’t of Defense, Background Paper: Central America 12–13 (1983) [hereinafter cited as Central America].

60 See generally Jenkins, , Honduran Army Defeats Cuban-Trained Rebel Unit, Wash. Post,Nov. 22, 1983, at A1 Google Scholar, cols. 2–3.

61 See Dep’t of State, Economic Sanctions against Nicaragua 1 (1985).

62 D. Nolan, supra note 8, at 38–39.

63 See Central America, supra note 59, at 13.

64 Inside Communist Nicaragua: The Miguel Bolaños Hunter Transcripts, Heritage Foundation Backgrounder, No. 294, Sept. 30, 1983, at 12 [hereinafter cited as Bolaños Transcripts].

65 Cuba’s Renewed Support for Violence, supra note 10, at 8.

66 Address by Comandante Fermán Cienfuegos, FBIS, Central America, at Q11 (Aug. 5, 1985).

67 They are, respectively, Communist Interference, supra note 50; Bureau of Public Affairs, Dep’t of State, Current Policy No. 376, Cuban Support for Terrorism and Insurgency in the Western Hemisphere (1982); Central America, supra note 59; Nicaragua’s Military Build-Up, supra note 41; and Soviet-Cuban Connection, supra Note 14.

68 Dep’t of State, Revolution Beyond Our Borders: Sandinista Intervention in Central America (1985) [hereinafter cited as Revolution Beyond Our Borders].

On Dec. 7, a car ferrying ammunition, explosives, funds, and cryptographic and other support materials to the insurgents in El Salvador from Nicaragua was intercepted after an accident in Honduras. The driver, who was trained in Cuba, admitted having made a similar delivery from Nicaragua to the FMLN earlier this year. This was the latest “smoking gun” in a continuing series of interceptions of shipments from Nicaragua to the FMLN. Wash. Post, Dec. 20, 1985, at A49, cols. 3–6.

69 It is fashionable—and, for some, part of a serious disinformation effort—to attack State Department “white papers.” Such attacks have been made both on the Vietnam-era white papers and on some Central American white papers. Western scholarship and statements by North Vietnamese leaders involved have now confirmed that reports in the white papers on the attack from North Vietnam were, if anything, understatements. For subsequent scholarly conclusions on the nature of that attack, see, e.g., S. Karnow, Vietnam: A History (1983).

70 H.R. Rep. No. 122, 98th Cong., 1st Sess. 5 (1983). The committee also considered, on the basis of the available intelligence, that “[a] major portion of the arms and other material sent by Cuba and other communist countries to the Salvadoran insurgents transits Nicaragua with the permission and assistance of the Sandinistas.” Id. at 6.

71 H.R. Rep. No. 569, 98th Cong., 1^st Sess. 3 (1984). See ate State-Sponsored Terrorism, supra note 2, at 66.

72 Wash. Post, Apr. 10, 1984, at A20, col. 6.

73 See 130 Cong. Rec H8268–69 (daily ed. Aug. 2, 1984).

74 Report of the President’s National Bipartisan Commission on Central America 116(1984).

75 Id. at 143–45.

76 Nicaragua’s Military Build-up, supra note 41, at 23.

77 FBIS, Latin America 4 (July 30, 1984). President Duarte has repeatedly confirmed the Nicaraguan aggression against El Salvador. See generally Declaration of Intervention of the Republic of El Salvador, Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Aug. 15, 1984, reprinted in 24 ILM 38 (1985). See also Inaugural Address by President Duarte, June 1, 1984, FBIS, Latin America 5–7 (June 4, 1984) (“with the aid of Marxist governments like Nicaragua, Cuba and the Soviet Union, an army has been trained and armed and has invaded our homeland. Its actions are directed from abroad”); and the speech by President Duarte in October 1985 to the UN General Assembly, Wash. Post, Oct. 26, 1985, at A28, cols. 1–2 (“The orders and communications came from Managua, and that was the center of operations. . .”).

78 UN Doc. S/PV.2529 (1984), reprinted in United States Counter-Memorial (Nicar. v. U.S.), Ann. 60 (submitted Aug. 17, 1984). See also statement of Ambassador Fahsen, supra note 58.

79 Riding, , Salvador Rebels: Five-Sided Alliance Searching for New, Moderate Image, N.Y. Times,Mar. 18, 1982, at A1 Google Scholar, col. 3.

80 Dillon, , Base for Ferrying Arms to El Salvador Found in Nicaragua, Wash. Post,Sept. 21, 1983, at A29 Google Scholar, col. 2.

81 N.Y. Times, Apr. 11, 1984, at A1, col. 5. Even the U.S. newspaper articles selectively relied on by Nicaragua before the ICJ as its sole proof that it was not aiding the insurgency confirm its involvement. For example, although critical of the administration’s claims in this regard, Doyle McManus wrote: “There is little doubt that Nicaragua has supplied at least some weapons, ammunition and other equipment to the Salvadoran leftists.” He added that “[e]ven the House Intelligence Committee which opposes the CIA program has acknowledged that.” McManus, , U.S. Fails to Offer Evidence of Nicaragua Arms Traffic, Los Angeles Times,June 16, 1984, at 1, 18 Google Scholar, cols. 1–2. According to Julia Preston, in September 1983, “reporters stumbled onto a Sandinista-run arms transshipment depot in northwestern Nicaragua . . . where ammunition was dispatched in canoes across the Gulf of Fonseca” into El Salvador. She also reported that during a visit to Washington in April 1984, “Nicaraguan Foreign Minister D’Escoto refused to deny in closed congressional meetings that his country is assisting the Salvadoran rebels. . . .” Preston, , Evidence of arms smuggling into Salvador lacking, Boston Globe,June 10, 1984, at 1, 28 Google Scholar, col. 5.

82 S. Hosmer & T. Wolfe, supra note 2, at 102–03. See also McGeorge, , Tactics and Techniques of Terrorists and Saboteurs, Terrorism: an International Journal, No. 3, Winter 1985 Google Scholar, at 297. Describing the attack on the Cuscatlán bridge in El Salvador, McGeorge writes: “This attack was not done by a group of bush-leaguers; it is an example of the use of foreign nationals or mercenaries.. . .” Id. at 301.

83 See generally Nicaragua’s Military Build-up, supra note 41, at 14–15.

84 Bolaños Transcripts, supra note 64, at 10.

85 See Nicaragua’s Military Build-up, supra note 41, at 16–17.

86 Smith, , A Former Salvadoran Rebel Chief Tells of Arms From Nicaragua, N.Y. Times,July 12, 1984, at 10, cols. 2–6 Google Scholar.

87 See Dep’t of State interview with Alejandro Montenegro, Division of Language Services, No. 112,533, at 19.

88 H.R. Republican Study Committee, Republican Study Committee Task Force on Central America Briefing with Alejandro Montenegro, July 12, 1984, at 5. Montenegro also dated the arrival of the first shipment of arms from Havana via Nicaragua as Dec. 31, 1980. See Dep’t of State interview, supra note 87, at 11.

89 Information Supplied by Alvaro Baldizon Aviles, supra note 28, at 19–21.

90 Pastora, , Nicaragua 1983–1985: Two Years’ Struggle against Soviet Intervention, 8 J. Contemp. Stud. 5, 9–10 (1985)Google Scholar.

91 See Communist Interference, supra note 50, at 2.

92 See, e.g., Soviet-Cuban Connection, supra note 14, at 33–34.

93 See generally material cited supra notes 45–48.

94 Declaration of Intervention of the Republic of El Salvador, supra note 77, 24 ILM at 40. Also, according to Salvadoran President Duarte, Comandante (and now President) Daniel Ortega acknowledged during a European political trip “that he had helped, is helping, and will continue to help the Salvadoran guerrillas.” Duarte added that Ortega “placed himself in a position that showed . . . that it is he who is openly and directly attacking and intervening in our country. . . . Obviously, he ha[s] declared himself guilty of intervention.” Press Conference of President Duarte, Radio Cadena YSKL in San Salvador, July 27, 1984, FBIS, Latin America 2 (July 30, 1984).

Similarly, Comandante Bayardo Arce said:

Imperialism asks three things of us: to abandon interventionism, to abandon our strategic ties with the Soviet Union and the socialist community, and to be democratic. We cannot cease being internationalists unless we cease being revolutionaries. We cannot discontinue strategic relationships unless we cease being revolutionaries. It is impossible even to consider this.

Dep’t of State, Comandante Bayardo Arce’s Secret Speech Before the Nicaraguan Socialist Party (PSN) in May of 1984, at 4 (1984) [hereinafter cited as Arce’s Secret Speech].

On long-term Sandinista goals, Foreign Minister D’Escoto said in May 1980: “You [the United States] may look at us as five countries, six now with Panama, but we regard ourselves as six different states of a single nation in the process of reunification.” See Nicaragua and the World, Christianity in Crisis, May 12, 1980, at 141, reprinted in White House Dig., June 20, 1984, at 4.

95 fox, D. & Glennon, M., Report to The International Human Rights Law Group and The Washington Office on Latin America Concerning Abuses Against Civilians by Counterrevolutionaries Operating in Nicaragua 32, 34 (1985)Google Scholar (statement by Luis Carrión).

96 Professor Glennon testified before the Court for Nicaragua. Foreign Minister D’Escoto Brockmann filed a sworn affidavit with the Court dated Apr. 21, 1984, in which he solemnly declared: “In truth, my government is not engaged, and has not been engaged in the provision of arms or other supplies to either of the factions engaged in the civil war in El Salvador” (see the D’Escoto statement, infra note 150) (emphasis added). The contradiction between the Carrion and D’Escoto statements presents several possibilities: the witness for Nicaragua may have erred in the report about which he was testifying, Carrión—Nicaragua’s principal witness—may have been wrong, D’Escoto may have overlooked known facts, or even all three.

In addition, the ICJ testimony of Nicaragua’s witness David MacMichael flatly contradicts D’Escoto’s above-quoted sworn statement. Note also that D’Escoto’s statement is narrowly focused on “arms or other supplies,” which conveniently excludes the involvement of Nicaragua in organization; command and control; financing; laundering and storage of arms; intelligence assistance; training, political and propaganda assistance; use of its territory as sanctuary; and other forms of substantial complicity in the FMLN insurgency.

97 See Verbatim Record, supra note 12, CR 85/21, at 20 (Sept. 16, 1985) [hereinafter the Court’s numbered documents of the Verbatim Record will be cited by their identification numbers, which include the year, and the date].

98 Id. at 29.

99 Id. at 41.

100 Id. at 34–35.

101 Id. at 39–40.

102 CR 85/23, at 24–25 (Sept. 17).

103 CR 85/19, at 24 (Sept. 12).

104 CR 85/21, at 8 (Sept. 16).

105 On the controversy, see U.S. Support for the Democratic Resistance Movement in Nicaragua, Excerpts from the President’s Report to the Congress Pursuant to Section 8066 of the Continuing Resolution for FY-1985, reprinted in U.S. Support for the Contras: Hearing Before the Subcomm. on Western Hemisphere Affairs of the House Comm. on Foreign Affairs, 99th Cong., 1st Sess. 199, 210 (1985) [hereinafter cited as U.S. Support].

106 Pastora, supra note 90, at 10–11.

107 For an excellent description of the Contadora process, see Purcell, Demystifying Contadora, 64 Foreign Aff. 74 (1985).

108 See generally U.S. Support, supra note 105; Dep’t of State, Special Rep. No. 115, U.S. Efforts to Achieve Peace in Central America (1984). According to Susan Purcell, Director of the Latin American Program at the Council on Foreign Relations:

[T]he United States rejected the [Contadora Draft] Acta [of Sept. 7, 1984] because it was a vague statement of goals without concrete limits on Nicaraguan action. Its provisions for unification and enforcement were totally inadequate, and it deferred negotiation on foreign military and security advisors and arms and troop reductions until after signature of the treaty. On the other hand, it required the United States upon signature to cease military exercises and support for the contras. Further military aid to EL Salvador and Honduras was frozen, while Nicaragua was allowed to maintain its military advantage over these two countries. The provisions for democratization and internal reconciliation were hortatory and unenforceable as drafted.

Purcell, supra note 107, at 77.

109 See Bureau of Public Affairs, Dep’t of State, Current Policy No. 679, Nicaragua: The Stolen Revolution (1985).

110 See generally material cited supra note 108.

111 See generally Dep’t of State Resource Book, The Contadora Process 3–5 (no date).

112 See, e.g., on U.S. efforts to promote democracy in Central America, particularly the U.S. position on the San José principles, The Final Act of Meeting of Foreign Ministers of Countries Interested in the Promotion of Democracy in Central America, reprinted in Dep’t of State, Declaration of Democracy in Central America 3 (1982). See also Address by George Shultz, Secretary of State, Dep’t st. Bull., No. 2074, May 1983, at 10.

113 See supra note 45 and accompanying text.

114 See, e.g., Pastora, supra note 90, at 7 (on the founding of ARDE). Pastora writes that he “decided to renew the struggle for democracy in Nicaragua, having understood that the . . . [FSLN] had turned our revolution over to Soviet interests.” Id.

115 See, e.g., N.Y. Times, Apr. 7, 1983, at A16, cols. 1–6.

Some early Argentinian assistance to the contras has also been reported. See Joyner, & Grimaldi, , The United States and Nicaragua: Reflections on the Lawfulness of Contemporary Intervention, 25 Va. J. Int’l L. 621, 634 n.68 (1985)Google Scholar.

116 The contras have successfully attacked such points, for example, the arms transshipment point La Concha in Nicaragua.

117 For a detailed discussion of the background debate and congressional intent on the Boland amendment, see H.R. Rep. No. 122, supra note 70, at 25–26. For the amendment, see Pub. L. No. 97–377, §793, 96 Stat. 1865 (1982).

118 Tolchin, , Senators, 88 to 1, Drop Money to Aid Nicaragua Rebels, N.Y. Times,June 26, 1984, at A1, A8 Google Scholar, col. 6.

119 Roberts, , House Reverses Earlier Ban on Aid to Nicaragua Rebels, Passes $27 Million Package, N.Y. Times,June 13, 1985, at A1, A12 Google Scholar, col. 6.

120 See Omang, , Contra Aid Now Available, Wash. Post,Oct. 5, 1985, at A2 Google Scholar, cols. 3–4. See also Wash. Post, Aug. 31, 1985, at A29, cols. 1–2 (on the restrictions of the aid and prohibition on CIA and Department of Defense participation in administering the funds).

121 Roberts, , Senators Modify Bill on Rebel Aid, N.Y. Times,June 8, 1985, at 1, 6 Google Scholar, col. 5.

122 See CR 85/20, at 11 (Sept. 13). Note that according to the Washington Post, in 1983, during a period of U.S. assistance to the contras, the U.S. Government provided each contra soldier with a “subsistence fee” of $23 per month. Oberdorfer & Tyler, , U.S.-Backed Nicaraguan Rebel Army Swells to 7,000 Men, Wash. Post,May 8, 1983 Google Scholar, at 1. Compare this figure with the average monthly salary for a “worker” in Nicaragua in January 1985, which “ranged between $110 and $150.” See Llosa, Vargas, In Nicaragua, N.Y. Times,Apr. 28, 1985, §6 (Magazine), at 45 Google Scholar.

123 On El Salvador, see LeMoyne, , Salvador Puts Guerrillas on the Defensive, N.Y. Times,May 19, 1985, at D1 Google Scholar; McCartney, & Omang, , Democracy Gaining in El Salvador, U.S. Believes, Wash. Post,June 2, 1985, at A1, A20 Google Scholar, cols. 2–5. On Nicaragua, see, e.g., Ritter, , Help the Contras, N.Y. Times,Apr. 11, 1985, at A21 Google Scholar (op-ed.).

124 One authority has estimated that only about 1.7% of E1 Salvador’s five million people support the FMLN insurgency, which explains why the FMLN consistently rejects participation in elections. See Young, , El Salvador: Communist Blueprint for Insurgency in Central America, 5 Conflict: All Warfare Short of War 307, 329 (1985)Google Scholar.

125 Reprinted in 130 Cong. Rec. S5158, S5158–59 (daily ed. May 1, 1984).

126 Document on National Dialogue of the Nicaraguan Resistance, signed by the various leaders and read to members of the Nicaraguan exile community in San José, Costa Rica, Mar. 12, 1985 (on file at the Center for Law and National Security). Edward Cody of the Washington Post reports that the Democratic Coordinator, “an opposition alliance” and “the Catholic Church hierarchy” have “joined the Reagan administration in calling for a dialogue between the government and the rebel leadership.” See Cody, Nicaraguan Crackdown Seen Aimed at Church, Wash. Post, Oct. 17, 1985, at A1, cols. 2–4, A33.

127 Document on National Dialogue, supra note 126.

128 See Soviet-Cuban Connection, supra note 14, at 22.

129 130 Cong. Rec. at S5158.

130 In fact, Pastora’s father was killed by Somoza’s National Guard. A substantial amount has been written about the famous “Commander Zero.” See, e.g., Christian Sci. Monitor, June 22, 1979, at 12, col. 3; Chicago Tribune, June 29, 1979, at 2, col. 1; Economist, May 10, 1980, at 21; and Arostegui, , Revolutionary Violence in Central America, Int’l Security Rev., Spring 1979, at 89 Google Scholar. See also Pastora, supra note 90, at 5.

131 On the composition of the “democratic opposition” or “contras,” see Dep’t of State, Groups of The Nicaraguan Democratic Resistance: Who Are They? (1985).

132 For a discussion of the reappraisal now taking place in Europe with respect to the Central American conflict, see Ledeen, , European Policy Intellectuals and U.S. Central American Policy, Wash. Q., Summer 1985, at 187.Google Scholar

133 See, e.g., Schultz, R. & Godsen, R., Dezinformatsia: Active Measures in Soviet Strategy (1984)Google Scholar.

134 Taubman, , Salvadorans’ U.S. Campaign: Selling of Revolution, N.Y. Times,Feb. 26, 1982, at A10 Google Scholar, cols. 3–6.

135 Nicaragua and the Crisis in Central America, Address by Arturo Cruz, at the National Strategy Information Center, Defense Strategy Forum, Washington, D.C. (May 22, 1985). The Sandinistas have also been working assiduously to bring opinion leaders from the United States, and the West in general, on controlled trips to Nicaragua.

136 See H.R. Republican Study Committee, supra note 88, at 4–5.

137 Reported in Young, supra note 124, at 326–27.

138 See, e.g., Report on Travel Seminars Conducted by Center for Global Service and Education, Augsburg College, Minneapolis, MN, reprinted in 131 Cong. Rec. H2042 (daily ed. Apr. 16,1985) (introduced by Rep. Weber). According to Congressman Weber, “One of the things we found down there from the people in Nicaragua, particularly the people in the Catholic Church, was a deep concern about the biased nature of the information given to American church groups visiting Nicaragua.” Id. at H2043. A participant in one such trip concluded: “The travel seminars . . . are not objective educational experiences designed to acquaint women with the problems of Central America as they are purported to be. They are instead two weeks of intensive anti-United States pro-Sandinista indoctrination.” Id.

139 The Washington law firm of Reichler & Applebaum is registered under the Foreign Agents Registration Act as an agent of Nicaragua in the United States (Registration No. 3582). The firm is reported to have assisted in a widely publicized “human rights investigation” into alleged contra atrocities (the Reed Brody report of February 1985). See D. Fox & M. Glennon, supra note 95, at iv.

A major strategy of the Sandinista ICJ case, intended to appeal to an American audience and the Court, has been to maximize use of Americans as counsel and witnesses. See Shaw, , Americans to Testify Against U.S. in Nicaraguan World Court Case, Wash. Post,Sept. 8, 1985, at A17 Google Scholar, cols. 1–5.

140 See Miller, , Ortega Uses Public Relations to Present His Case to U.S., Boston Globe,Oct. 28, 1985, at 4 Google Scholar, cols. 4–6.

141 Discussion with Christopher Barton, a member of Senator Durenberger’s staff in Washington, D.C., Aug. 18, 1985.

142 Arce’s Secret Speech, supra note 94, at 2.

143 Id. at 6.

144 Id. at 5.

145 Id. at 3.

146 Id. at 7. Comandante Arce says of elections in Nicaragua:

What a revolution really needs is the power to act. The power to act is precisely what constitutes the essence of the dictatorship of the proletariat—the ability of the [working] class to impose its will by using the means at hand [without] bourgeois formalities. For us, then, the elections, viewed from that perspective, are a nuisance, just as a number of things that make up the reality of our revolution are a nuisance.

Id. at 4.

147 Gedda, , Nicaraguan Defects: Human Rights Official Given Asylum in U.S., Wash. Post,Aug. 21, 1985, at A13 Google Scholar, cols. 1–3. For a summary of information supplied by Guerrero, see Inside Sandinista Regime, supra note 28. Note also that

Bendana stated that, acting on the authority of President Daniel Ortega and Foreign Minister Miguel D’Escoto, he would personally direct the CNPPDH for the purpose of promoting a [sic] international offensive by the Nicaraguan government denouncing abuses allegedly committed by anti-Sandinista forces. He noted that the CNPPDH would help establish a network of foreign human rights organizations to publicize these abuses throughout the world.

Id. at 3.

148 According to Baldizón:

Borge prepares himself for visits from foreign Christian religious organizations or speeches to these groups by studying the Bible and extracting appropriate passages for use in his conversations or address. When the foreign visitors have departed he scoffs at them in front of his subordinates, bragging about his ability to manipulate and exploit the “deluded” religious group. . . .

In January 1985, Tomas Borge ordered Baldizon’s office to seek out and provide him with persons in dire economic straits or with serious health problems who would then be used in staged “shows” before visiting foreign political or religious groups. A quota of six such persons was to be furnished every 15 days. . . .

In May 1985, such a show was staged for the benefit of a visiting delegation of the West German Christian Democratic Union/Christian Social Union (CDU/CSU). In this show, a blind man who had earlier requested an accordion so he could entertain to earn his living, was presented with an instrument.. . . The instrument was to be repossessed from the blind man after his show appearance. . . .

Information Supplied by Alvaro Baldizon Aviles, supra note 28, at 17–19.

149 See Young, supra note 124, at 325.

150 When asked about their support for insurgencies in neighboring states, the Sandinistas typically respond by flatly denying the secret war. Thus, Foreign Minister D’Escoto declared in a sworn affidavit to the World Court: “I am aware of the allegations made by the Government of the United States that my Government is sending arms, ammunition, communications equipment and medical supplies to rebels conducting a civil war against the Government of El Salvador. Such allegations are false. . . .” Affidavit of Foreign Minister Miguel D’Escoto Brockmann, Memorial of Nicaragua (Nicar. v. U.S.), Ann. B (submitted Apr. 30, 1985), reprinted in Revolution Beyond Our Borders, supra note 68, at 1. The comandantes also have repeatedly and inaccurately predicted a U.S. invasion of Nicaragua; one such prediction coincided with the opening of oral argument in the jurisdictional phase of the Nicaragua case. See id. at 2. See, e.g., Omang, , Nicaraguan Leader Says U.S. Planning Invasion Oct. 15, Wash. Post,Oct. 3, 1984, at A1 , A24 Google Scholar. See also “60 Minutes,” supra note 16.

According to Lawrence Harrison, when he complained about the “inaccuracies and distortions in Barricada . . . and E1 Nuevo Diario,” the Nicaraguan Minister of Health told him, “You don’t understand revolutionary truth. What is true is what serves the ends of the revolution.” See Harrison, supra note 16, at A27.

151 Article 2(4) provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

152 OAS Charter, done at Bogotá Apr. 30,1948, 2 UST 2394, TIAS No. 2361, 119 UNTS 3, as amended, Feb. 27, 1967, 21 UST 607, TIAS No. 6847. These articles of the revised Charter embody the historical Latin American prohibitions on indirect aggression and intervention embodied, e.g., in the Convention on the Duties and Rights of States in the Event of Civil Strife (1928), 46 Stat. 2749, TS No. 814,134 LNTS 45; and the Montevideo Convention on Rights and Duties of States (1933), 49 Stat. 3097, TS No. 881, 165 LNTS 19.

153 Inter-American Treaty of Reciprocal Assistance (Rio Treaty), Sept. 2, 1947, 62 Stat. 1681, TIAS No. 1838, 21 UNTS 77.

154 GA Res. 3314, 29 UN GAOR Supp. (No. 31) at 143, UN Doc. A/9631 (1974).

155 GA Res. 290, 4 UN GAOR Res. (20 Sept.–10 Dec.) at 13, UN Doc. A/1251 and Corrs. 1 & 2 (1949).

156 GA Res. 380, 5 UN GAOR Supp. (No. 20) at 13, UN Doc. A/1775 (1950).

157 9 UN GAOR Supp. (No. 9) at 11, UN Doc. A/2693 (1954).

158 GA Res. 2131, 20 UN GAOR Supp. (No. 14) at 11, UN Doc. A/6014 (1965). This declaration was adopted by a vote of 109 to 0. Section 8 makes clear that the declaration does not affect the right of defense under Article 51 and everything else in chapters VI, VII and VIII of the Charter.

159 GA Res. 2625, 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970). Similarly, this declaration makes clear that it does not affect “the relevant provisions of the Charter relating to the maintenance of international peace and security.”

160 Basic Principles of Relations between the United States of America and the Union of Soviet Socialist Republics, May 29, 1972, reprinted in 66 Dep’t st. Bull. 898 (1972), 66 AJIL 920 (1972).

Soviet and Cuban support for insurgencies from Cuba would also seem to violate the Kennedy- Khrushchev agreement in the 1962 Cuban missile crisis that Kennedy believed to include Khrushchev’s pledge that Cuba would not export subversion and revolution. See, e.g., Kirkpatrick, J., The Kennedy-Khrushchev Pact and the Sandinistas 6 (1985)Google Scholar.

161 Principle IV prohibits “a threat or use of force against territorial integrity,” and Principle VI prohibits “direct or indirect assistance to terrorist activities, or to subversive or other activities directed towards. . . violent overthrow.” Conference on Security and Cooperation in Europe, Final Act, Aug. 1, 1975, reprinted in 14 ILM 1292 (1975). The “Helsinki Agreement” is signed by 35 nations and technically is regarded as creating political, rather than legal, obligations.

162 For the Soviet draft definition of the attacking state, see text at note 180 infra. The draft also declares in part:

[T]he following may not be used as justifications for attack:

A. The internal position of any State, as, for example:

. . .

(b) Alleged shortcomings of its administration;

. . .

(d) Any revolutionary or counter-revolutionary movement, civil war, disorders or strikes;

(e) The establishment or maintenance in any State of any political, economic or social

system. . . .

Ferencz, B., Defining International Aggression: The Search for World Peace 79 (1975)Google Scholar.

163 Article 3(F) of the revised OAS Charter establishes the same legal point. For a general discussion of the inter-American system in relation to the UN Charter, see Claude, , The OAS, the UN, and the U.S., Int’l Conciliation, Mar. 1964, at 3 Google Scholar; Moore, , The Role of Regional Arrangements in the Maintenance of World Order, in 3 The Future of The International Legal Order (Black, C & Falkeds, R.. 1970)Google Scholar, reprinted in Moore, J., Law and the Indo-China War 296 (1972)Google Scholar; see also Harter, , The Rio Treaty and Collective Security in Latin America, Foreign Service J., June 1985, at 35 Google Scholar.

Article 27 of the revised OAS Charter also declares that an attack against one American state is “an act of aggression against. . . [all] the American States.”

164 Art. 5, North Atlantic Treaty Organization, Aug. 24, 1949, 63 Stat. 2241, TIAS No. 1964, 34 UNTS 243.

165 Art. 5, Treaty of Mutual Cooperation and Security between the United States of America and Japan, 11 UST 1632, TIAS No. 4509, 373 UNTS 186.

166 See, e.g., Bowett, D., Self-Defence in International Law 184–93 (1958)Google Scholar; M. Mcdougal & F. Feliciano, supra note 1, at 233–41; J. Stone, Aggression and World Order 92–101 (1958).

167 “Aucune disposition de la présente ne porte atteinte au droit naturel de légitime défense, individuelle ou collective, dans le cas où un membre des Nations Unies est l’objet d’une agression armée, jusqu’à ce que le Conseil de Sécurité ait pris les mesures nécessaires pour maintenir la paix et la sécurité Internationales.” UN Charter art. 51.

168 On the history of Article 51 in relation to Latin America, see Claude, supra note 163,

at 8.

169 M. Mcdougal & F. Feliciano, supra note 1, at 192 n.164.

170 Kelsen, , Collective Security under International Law, 49 Int’l L. Stud. 88 (1956)Google Scholar.

171 Thomas, A. & Thomas, A., The Dominican Republic Crisis 1965: Working Paper From The Ninth Hammarskjöld Forum 27–28 (1967)Google Scholar.

172 Id. at 42.

173 Hull, R. & Novogrod, J., Law and Vietnam 118, 120 (1968)Google Scholar. See also Higgins, R., The Development of International Law Through The Political Organs of the United Nations 204 (1963)Google Scholar; Pompe, C., Aggressive War: An International Crime 53 (1953)Google Scholar.

Even Professor Brownlie, who takes one of the most restrictive views on indirect aggression, writes:

[I]t might be argued that “armed attack” in Article 51 of the Charter refers to trespass, a direct invasion, and not to activities described by some jurists as “indirect aggression”. But providing there is control by the principal, the aggressor state, and an actual use of force by its agents, there is an armed attack.

Brownlie, I., International Law and the Use of Force by States 373 (1963)Google Scholar.

174 See, e.g., Tucker, , The Interpretation of War under Present International Law, 4 Int’l L.Q. 11, 31 (1951)Google Scholar.

175 See R. Higgins, supra note 173, at 204 n.73.

176 13 UN Scor (833d mtg.) at 3, UN Doc. S/PV.833 (1958).

177 The following exchange occurred during hearings on the NATO Treaty:

Senator Fulbright: Would an internal revolution, perhaps aided and abetted by an outside state, in which armed force was being used in an attempt to drive the recognized government from power be deemed an “armed attack” within the meaning of article 5? That is a little different from the last question in that I assume an ordinary election which the Communists won. This is in the nature of a coup. Would that come within the definition of an armed attack?

Secretary Acheson:. . . Did you say if there were a revolution supported by outside force would we regard that as an armed attack?

Senator Fulbright: That is right. It is one of those borderline cases.

Secretary Acheson: I think it would be an armed attack.

North Atlantic Treaty: Hearings Before the Senate Comm. on Foreign Relations, Pt. 1, 81st Cong., 1st Sess. 58 (1949). See also S. Exec. Rep. No. 8, 81st Cong., 1st Sess. 13 (1949).

178 Final Act, Ninth Meeting of Consultation of Ministers of Foreign Affairs Serving as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance, OEA/ Ser.F/II.9 (Eng.), doc. 48, rev. 2 (1964), reprinted in 12 Whiteman, M., Digest of International Law 820 (1971)Google Scholar. On this incident and the OAS response, see id. at 814–20.

179 GA Res. 3314, supra note 154.

180 B. Ferencz, supra note 162, at 79 (emphasis added).

181 On the community policies underlying the formulas “armed attack” and “necessity” as requirements of lawful defense, see M. Mcdougal & F. Feliciano, supra note 1, at 259.

182 Id. at 242. The Caroline test, often erroneously employed as a general test for necessity and proportionality, is actually a test for the special case of anticipatory defense. See id. at 217, 231.

183 In addition, the careful use of naval mines in response to an armed attack is not prohibited by general international law and may be a proportional response to assist in interdiction of the attack. Article 2 of the Hague Convention Relative to the Laying of Automatic Submarine Contact Mines (1907), 36 Stat. 2332, TS No. 541, clearly contemplates the use of mines for military objectives. As to proportionality in the Central American conflict, press accounts of the apparently small mines indicate considerably more casualties from a single FMLN attack on a mountain hamlet in El Salvador than from the entire “mining” operation. Compare Ad ministration Defends Mining of Harbors, CONG. Q., Apr. 1984, at 835, with El Salvadoran Guerrillas Execute 18, Wash. Post, May 13, 1985, at Al, cols. 2–4, A25.

Modern international law permits a belligerent to take reasonable measures (certainly within the internal waters of the opposing belligerent state) to restrict shipping, including third flag shipping, using the ports of the opposing belligerent. The Security Council supported this point by condemning Iran’s general attacks against shipping in the Persian Gulf, whether or not it involved an Iraqi port, and pointedly not condemning Iraq’s attacks against shipping, including third flag shipping, exclusively using Iranian ports. See SC Res. 552, 39 UN SCOR at 15, UN Doc. S/INF/40 (1984), and accompanying debate. During the debate, the Netherlands expressed the view that

under international law, belligerents may take measures to restrict shipping to and from ports of the other belligerents. Such measures did, of necessity, affect the rights of third States under whose flag such shipping was conducted. But indiscriminate attacks against merchant shipping in whatever part of the Gulf fell outside the scope of the permissible use of armed force.

See UN Chron., No. 5, 1984, at 5, 8–9. The total number of ships hit by Iraq far exceeded that hit by the contras’ mining. See UN Doc. S/16585 (1984). See also discussion at 39 UN SCOR (2525th mtg.) at 26–27, UN Doc. S/PV.2525 (1984).

Similarly, U.S. economic sanctions against Nicaragua are a proportional response against the secret attack. Both the General Agreement on Tariffs and Trade (GATT) and the U.S.Nicaragua Treaty of Friendship, Commerce and Navigation include provisions permitting the suspension of obligations for “essential security interests” or if necessary for the “maintenance of international peace and security.” Thus, general use-of-force issues and necessity and proportionality need not even be reached. See Art. XXI of the GATT, 61 Stat. (5), (6), TIAS No. 1700, 55–61 UNTS; Art. XXI (1)(d) of the Treaty of Friendship, Commerce and Navigation, infra note 203. For the U.S. position on the economic sanctions against Nicaragua of May 7, 1985, see Statement by L. Motley, Dep’t st. Bull., No. 2100, July 1985, at 75. See also discussion by Ambassador Jose S. Sorzano, Acting U.S. Permanent Representative to the United Nations, in the Security Council on the complaint of Nicaragua, May 9, 1985, Press Release USUN No. 39(85) (rev.), May 9, 1985.

184 Interview with Professor Thomas Franck, Oct. 30, 1984, quoted in Note, A Framework for Evaluating the Legality of the United States Intervention in Nicaragua, 17 N. Y.U.J. Int’l L. & Pol. 155, 178(1984).

185 See. Persico, J , Piercing The Reich: The Penetration of Nazi Germany by American Secret Agents During World War II, at 75, 255, 318 (1979)Google Scholar. See also Special Operations Executive Directive for 1943, British Chief of Staff Memorandum of Mar. 20, 1943, reprinted in Stafford, D., British and European Resistance 1940–45, at 251 (1980)Google Scholar.

186 See Goulden, J., Korea, : The Untold Story of the War 464–75 (1982)Google Scholar; Leary, W., Perilous Missions: Civil Air Transport and Cia Covert Operations in Asia 120–26 (1984)Google Scholar.

187 Conversation of the author with William Stevenson, author and expert on the history of intelligence, in Washington, D.C. (1985).

188 See Remarks by Senator David Durenberger to the Johns Hopkins University School of Advanced International Studies (Oct. 21, 1985).

189 See revised OAS Charter, supra note 152. For the operation of this principle under the UN Charter, see, e.g., D. Bowett, supra note 166, at 195; Brierly, J., The Law of Nations 319–20 (5th ed. 1955)Google Scholar; Jessup, P., A Modern Law of Nations 64–65, 202 (1948)Google Scholar; Kelsen, H., The Law of the United Nations 800, 804 n.5 (1964)Google Scholar; Stone, J., Legal Controls of International Conflict 244 (1954)Google Scholar.

Article 51 does require that defensive measures be brought to the attention of the Security Council, but the United States has repeatedly discussed the Central American conflict in the Council. See particularly for a discussion of the legal issues, the material by U.S. Ambassador Sorzano, Press Release USUN No. 39(85)(rev.), supra note 183. Even if the formalistic argument were made that repeated discussion before the Council does not constitute “reporting”—in the English version of Article 51 —an absence of reporting could not vitiate the right of defense under customary law, which is embodied in the Charter and acknowledged by the same article that calls for reporting as “inherent” and not subject to impairment by anything “in the present Charter.” Furthermore, the equally authentic French text of Article 51 uses the phrase “portées à la connaissance du Conseil” and speaks of a “droit naturel de légitime défense.”

190 This issue will be discussed in greater detail in section IV of this paper.

191 Pub. L. No. 93–148, §5, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§1541–1548(1982)). Following the Supreme Court decision in Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983), §5(c) of the resolution is almost certainly unconstitutional. There is an ongoing controversy as to whether §5(b), or the resolution more broadly, is also unconstitutional. See, e.g., the exchange between Moore, & Tipson, , The War Powers Resolution, 70 A.B.A.J. 10 (1984)Google Scholar.

192 Section 4 of the War Powers Resolution, supra note 191.

193 18 U.S.C. §960 (1982). An Act of 1794—growing out of the notorious “Citizen Genet affair”—was passed at the request of President Washington to prevent unauthorized involvement by private citizens in the war between France and England. Similarly, in 1917 during World War I, a “neutrality” Act was passed that, among other things, prohibits individual citizens from engaging in a conspiracy to destroy property situated abroad of a foreign government with which the United States is at peace. 18 U.S.C. §956 (1982). A series of neutrality acts—dealing with such issues as munitions sales and exports—was also passed in the 1930s, as some in Congress sought to avoid the coming global war and, instead, by their isolationism, actually fanned the flames. See, e.g., all by Jessup, , New Neutrality Legislation, 29 AJIL 665 (1935)Google Scholar; Toward Further Neutrality Legislation, 30 AJIL 262 (1936); Neutrality Legislation—1937, 31 AJIL 306 (1937); and Reconsideration of the Neutrality Legislation, 33 AJIL 549 (1939).

194 The legislative intent and background of the relevant neutrality acts preclude such application. See United States v. Elliott, 266 F.Supp. 318, 324 (S.D.N.Y. 1967) (interpreting the 1917 Act). The Circuit Court case United States v. Smith, 27 F. Cas. 1192 (D.N.Y. 1806) (Nos. 16,342 and 16,342a), much cited for the contrary proposition, is not good authority for that proposition. There, defendants under the 1794 Act sought to rely on imputed presidential knowledge of their actions and presidential silence toward them rather than on presidential authorization of those actions.

195 Even if the neutrality acts were broad enough to apply to governmentally authorized assistance, under hornbook rules of U.S. constitutional law they would yield to subsequent and inconsistent acts of Congress or treaties. Such acts and treaties would include, as applied to assisting the contras, the National Security Act of 1947, as amended, particularly 50 U.S.C. §403(d)(5) and 50 U.S.C. §413 (1982) (accountability for intelligence activities), 22 U.S.C. §2422 of 1974, as amended October 1980 (Hughes-Ryan amendment), individual intelligence authorization and appropriation measures related to funding the contras, and even Article 3 of the Rio Treaty.

196 See note 117 supra. See also H.R. Rep. No. 122, supra note 70, at 25–26.

197 As of this writing, there have been five cases before United States District Courts in which plaintiffs have challenged U.S. activities in Central America. In Crockett v. Reagan, 720 F.2d 1355, 1356–57 (D.C. Cir. 1983), cert, denied, 104 S.Ct. 3533 (1984), the court held that such questions present “nonjusticiable” political questions. In Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), the court of appeals reaffirmed this holding in regard to a contention by members of Congress that the administration’s activities in Central America had violated the Boland amendment and Article I, section 8 of the Constitution, which gives Congress the power to declare war. “Without necessarily disapproving the District Court’s conclusion that all aspects of the . . . case presented] a nonjusticiable political question,” the court dismissed the claims of the other litigants, several Nicaraguan and U.S. citizens, on the ground that they did not have a private right of action under the War Powers Resolution, the Hughes-Ryan amendment, the National Security Act or the neutrality acts. Id. at 206. Even Dellums v. Smith, 573 F.Supp. 1489 (N.D. Cal. 1983), which is widely cited by opponents of U.S. policy in Central America, only held that, under the extraordinarily loose standard of the Ethics in Government Act, 28 U.S.C. §§591–598 (1982), a special prosecutor should have been appointed by the Department of Justice to determine the truth or falsity of plaintiffs allegations based on the neutrality acts. Since the Attorney General has already determined that the acts are not violated by U.S. activities in Central America, the Government rightly regarded the decision as silly. The case is on appeal and almost certainly will be reversed. See also Clark v. United States, 609 F.Supp. 1249 (D. Md. 1985) (taxpayers lacked standing to challenge provision of Foreign Assistance Act that authorizes assistance to El Salvador and to Nicaraguans opposing the Sandinista regime). Of peripheral relevance, see Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984), vacated, 105 S.Ct. 2353 (1985) (U.S. citizen suing for unlawful taking of property in Honduras for military base used by U.S. troops).

198 It is not generally known that the Nicaraguan complaint, announced at a press conference in Washington, D.C, sought, among its many objectives, to terminate any presence of American military advisers in El Salvador.

199 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Request for Provisional Measures, 1984 ICJ Rep. 169, para. 41(B)(1) and (2) (Order of May 10), reprinted in 23 ILM 468, 477 (1984).

200 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26), reprinted in 24 ILM 59 (1985). The Court held by 11–5 that it had jurisdiction under the “optional clause” and by 14–2 that it had jurisdiction under the U.S.-Nicaragua Treaty of Friendship, Commerce and Navigation, infra note 203.

201 See Dep’t of State, Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, Jan. 18, 1985, reprinted in 24 ILM 246 (1985) [hereinafter cited as Statement on Withdrawal].

202 This conclusion specifically does not rely on the following facts: that only 44 nations out of more than 160 UN members have accepted the compulsory jurisdiction of the Court under the “optional clause,” and of those many have substantial reservations; that only the United States and the United Kingdom among permanent members of the Security Council have accepted “optional clause” jurisdiction; that only 5 out of 16 judges in the Nicaragua case come from countries that have accepted the compulsory jurisdiction of the Court; that the United States is the only country to have agreed to appear in a hearing on provisional measures when it disputed the jurisdiction of the Court (among others, France, Iran and Iceland did not appear). However, as the United States assesses its acceptance of compulsory jurisdiction in the aftermath of the Nicaragua case, these factors, as well as the obvious deficiencies in the existing U.S. acceptance of the Court’s jurisdiction such as the Connally reservation and lack of protection against the “hit-and-run problem,” will be relevant. See, e.g., D’Amato, Modifying U.S. Acceptance of the Compulsory Jurisdiction of the World Court, 79 AJIL 385 (1985). See also the papers and proceedings of the conference on U.S. acceptance of the ICJ’s compulsory jurisdiction at the University of Virginia (Aug. 17, 1985) (forthcoming).

203 See Art. XXIV, para. 2, Treaty of Friendship, Commerce and Navigation, Jan. 21, 1956, United States-Nicaragua, 9 UST 449, TIAS No. 4024. Although by its terms disputes arising under the Treaty may be submitted to the ICJ, it is so patent on its face that the Treaty could not form the basis for deciding the Nicaragua case that it is an abuse of discretion to hold that the Treaty provides an independent basis of jurisdiction. The Treaty applies to U.S. actions with respect to Nicaraguans in the United States, not to U.S. actions in Nicaragua. It contains a clear national security exception (Article XXI(1)(d)) that provides: “The present Treaty shall not preclude the application of measures . . . [that are] (d) necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests. . . .” Most importantly, the fundamental right of defense is based on Article 51 of the UN Charter and Article 3 of the OAS Charter, which clearly supersede an FCN treaty for conflict settings.

The Court’s extraordinary interpretation of FCN treaties may severely harm international relations—and the Court—by convincing nations that they must modify either all these treaties or their acceptance of ICJ compulsory jurisdiction under them, quite apart from their acceptance of jurisdiction under the optional clause.

204 61 Stat. 1218, TIAS No. 1598.

205 For El Salvador’s stake in the case, see El Salvador’s Declaration of Intervention, supra note 77.

206 Hudson, , The World Court: America’s Declaration Accepting Jurisdiction, 32 A.B.A J. 832, 895 (1946)Google Scholar.

207 Wilcox, , The United States Accepts Compulsory Jurisdiction, 40 AJIL 669, 715–16 (1946)Google Scholar. But see Briggs, Nicaragua v. United States: Jurisdiction and Admissibility, 79 AJIL 373, 375 (1985).

208 See 1984 ICJ Rep. at 425–26.

209 See Dep’t of State, Observations on the International Court of Justice’s November 26, 1984 Judgment on Jurisdiction and Admissibility in the Case of Nicaragua v. United States of America, reprinted in 24 ILM 249, 251–56 (1985).

210 Statement on Withdrawal, supra note 201, at 247.

211 Id. at 258 (citing Judge Oda; see 1984 ICJ Rep. at 510).

212 Statement on Withdrawal, supra note 201, at 252 (citing Judge Jennings; see 1984 ICJ Rep. at 536).

213 See generally Anand, R., Compulsory Jurisdiction of the International Court 261 (1961)Google Scholar; Carlston, K., the Process of International Arbitration 81 (1946)Google Scholar; Delbez, L., Les Principes Généraux Du Contentieux International 132–33 (1962)Google Scholar; Draft on Arbitral Procedure, [1958] 2 Y.B. Int’l L. Comm’n 11, UN Doc. A/CN.4/SER.A/1958/Add.1.; H. Lauterpacht, The Function of Law in the International Community 206, 210 (1933); C. Rousseau, Droit International Public 496–97 (1953); I. Shihata, The Power of The International Court to Determine its Own Jurisdiction 68–69 (1965); Simpson, I. & Fox, H., International Arbitration: Law and Practice 250–52 (1959)Google Scholar.

214 K. Carlston, supra note 213, at 87.

215 Effect of awards of compensation made by the U.N. Administrative Tribunal, 1954 ICJ Rep. 47, 65 (Advisory Opinion of July 13) (indiv. op. Winiarski.J.).

216 See, e.g., I. Shihata, supra note 213, at 73.

217 I. Simpson & H. Fox, supra note 213, at 252. See also C. Rousseau, supra note 213, at 496–97.

218 K. Carlston, supra note 213, at 87.

219 See supra notes 210 and 211. At least one distinguished law scholar, Professor Michael Reisman of the Yale Law School, has taken the position that the Court’s claimed jurisdiction in the Nicaragua case is an exces de pouvoir. See Has the International Court Exceeded its Jurisdiction?, infra at p. 128.

220 H. Lauterpacht, supra note 213, at 210.

221 As the ICJ has expressed it:

Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. . . ,[I]t has been generally recognized . . . that, in the absence of any agreement to the contrary, an international tribunal has the right to determine its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. . . . This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is . . .an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations.

Nottebohm Case (Liechtenstein v. Guat.), 1953 ICJ Rep. 111, 119 (Judgment of Nov. 18). On the development of this rule, see 1 S. Rosenne, The Law and Practice of the International Court 438–41 (1965); and C. Rousseau, supra note 213, at 496–97.

222 As stated in the Nottebohm case:

Article 36, paragraph 6, suffices to invest the [ICJ] with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court “whose function is to decide in accordance with international law such disputes as are submitted to it” (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the Court and the rule of general international law referred to above [the right of international tribunals to decide their own jurisdiction] are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.

1953 ICJ Rep. at 120.

223 On several occasions, the Court has discussed its competence to determine its own jurisdiction under Article 36(6), the most extensive being in the Nottebohm case. See supra notes 221 and 222. There, the Court rejected Guatemala’s argument that its powers under Article 36(6) were limited to determining whether a claim fell within the categories enumerated in Article 36(2) and affirmed its power to decide whether the expiration of Guatemala’s acceptance of compulsory jurisdiction deprived it of the power to hear the case. 1953ICJ Rep. at 120. However, while this and other opinions clearly establish the power of the Court to decide its jurisdiction in the first instance, they do not deal with the present proposition, that its determination is not final and binding when states can demonstrate a manifest excès de pouvoir on its part.

224 1954 ICJ Rep. at 65.

225 See 1984 ICJ Rep. at 429–41.

226 For a more complete development of this point, see Oral Argument of John Norton Moore, Inadmissibility of the Application, presented by the United States in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) (Oct. 16, 1984).

227 Trial of Pakistani Prisoners of War, Interim Protection, 1973 ICJ Rep. 328, 332 (Order of July 13) (sep. op. Nagendra Singh, J.).

228 See C. Dickens, Oliver Twist, ch. 51 (1837).

229 Among others, Judge Hardy Dillard, formerly of the ICJ, and Lloyd Cutler have recognized the inherent limitations on adjudication by the Court. See Dillard, Reflections of a Professor Turned Judge, 17 Willamette L. REV. 24 (1980). Cutler made the following points on the Nicaragua case:

How would the World Court go about making judicial findings of fact in the Nicaragua case? Is it going to subpoena the files of the CIA, or its opposite number in Nicaragua? Is it going to make on-site inspection visits to the guerrilla camps in El Salvador, or Honduras, or Nicaragua itself? I submit that the U.N. Charter had good reason to consign issues like these to the Security Council. They are simply not justiciable.

78 ASIL Proc. (1984) (forthcoming). See also Cutler, Some Reflections on the Adjudication of the Iranian and Nicaraguan Cases, 25 Va. J. Int’l L. 437 (1985) [hereinafter cited as Reflections].

230 Article 51 of the Charter says, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense,” and under its Article 92 the Statute of the Court “forms an integral part of the present Charter.”

231 1984 ICJ Rep. 169.

232 Scholars, of course, also disagree as to whether provisional measures in general are legally binding or enforceable by the Security Council. See J. Sztucki, Interim Measures in the Hague Court 260–98 (1983).

233 See text infra at note 317.

One example of misreporting by counsel for Nicaragua is the statement made to the Court by Abram Chayes on Sept. 18,1985 that “Ronald F. Lehman, a Special Assistant to the President, and I believe, brother to the Secretary of the Navy, visited FDN leadership in Nicaragua in the spring of 1984. . . .” Ronald Lehman, senior director for arms control on the National Security Council staff and currently an ambassador to the Geneva arms control talks, does not work on Central American issues, has never been to Central America and is not related to Secretary of the Navy John Lehman. This disregard of normal standards of care in making factual assertions to the Court shows a troubling lack of concern for its integrity. See CR 85/24, at 61 (Sept. 18).

234 See Cutler, Reflections, supra note 229, at 446.

235 On the sixth anniversary of the Sandinista overthrow of Somoza, July 19, 1985, and following an FMLN attack on off-duty American Marines and Salvadoran civilians in a downtown San Salvador cafe, Comandante Ortega again denied that Nicaragua was engaged in terrorism against its neighbors and vehemently accused the United States of terrorism on a worldwide basis. See Long, , Ortega Marks Sandinista Revolution’s Anniversary with Denunciation of U.S., Los Angeles Times,July 20, 1985, at 9 Google Scholar, col. 1.

236 One example, selected because the senior author is a moderate and respected international law scholar, is the recent article by Professor Christopher Joyner and Michael A. Grimaldi, supra note 115. As “Historical Background,” the authors spend 11 pages (id. at 631–41) discussing U.S. involvement, with heavy emphasis on contra operations in Nicaragua, but not once do they discuss the secret Cuban-Nicaraguan attack against neighboring states. The only passing reference is a single sentence: “Firmly committed to opposing communist incursion in the Western Hemisphere, the Reagan Administration determined early on that Nicaragua under the Sandinistas was a conduit for aggressive communist activities in Central America.” Id. at 634. This sentence seems to imply that the Reagan administration (there is no mention of the Carter administration’s equivalent determination) is pursuing an anti-Communist American Brezhnev Doctrine for the hemisphere. Such one-sided historical background from a scholar of Professor Joyner’s reputation shows that the “invisible attack” syndrome is indeed a major world-order threat with a unique ability to turn the rule of law against itself.

For a radical attack and reply by the author, see Chomsky, , Law and Imperialism in the Central American Conflict: A Reply to John Norton Moore, 8 J. Contemp. Stud. 25 (1985)Google Scholar; and Moore, , Tripping through Wonderland with Noam Chomsky: A Response, id. at 47 Google Scholar.

237 One generic problem may be that the expertise on radical regimes’ strategies of terrorism, “indirect aggression” and “wars of national liberation” has largely developed outside the international legal community. See generally J. Pustay, Counterinsurgency Warfare (1965); R. Cline & Y. Alexander, supra note 2; W. Laqueur, Terrorism (1977); Murphy, J., Legal Aspects of International Terrorism (1980)Google Scholar; Alexander, Y., Carlton, D. & Wilkenson, P., Terrorism: Theory and Practice (1979)Google Scholar. For general treatment of such strategies, see, e.g., Schapiro, L., Totalitarianism (1972)Google Scholar; Nolte, E., Three Faces of Fascism: Action Franchise, Italian Fascism, National Socialism (1969)Google Scholar; Johnson, C., Revolutionary Change (1966)Google Scholar; Arendt, H., The Origins of Totalitarianism (1973)Google Scholar; Hoffer, E., The True Believer (1951)Google Scholar; and J.-F. Revel, The Totalitarian Temptation (1978).

238 See Joyner & Grimaldi, supra note 115, at 665. Note the reference to the old edition of the OAS Charter; it should be to Article 18 of the revised, post-1967 Charter.

239 For the background of the Rio Treaty, see, e.g., Inter-American Treaty of Reciprocal Assistance of Rio de Janeiro (1947), in 6 Encyclopedia of Public International Law: Regional Cooperation, Organizations and Problems 217 (1983). See also the Rio Treaty, supra note 153.

240 Pursuant to paragraph 2, all that is required for collective defense is a general request for assistance and that subsequent to such a request the requested state determines the measures it may individually take. Thus, El Salvador, which has requested general U.S. assistance in meeting the armed attack against it, is not required to approve each U.S. action such as assistance to the contras. Nevertheless, President Duarte has repeatedly and publicly recognized their contribution in reducing the intensity of the attack against El Salvador. See, e.g., Duarte’s press conference of July 27, 1984, FBIS, Latin America, at P2 (July 30,1984). In May 1984, then President of El Salvador Magana personally confirmed to the author that El Salvador had requested U.S. assistance.

241 Art. 3, paras. 1, 2 and 4, Rio Treaty, supra note 153.

242 Id., Art. 10. Since Article 103 of the UN Charter would already have ensured that no obligation under the Charter could be impaired by the Rio Treaty, the real purpose and effect of Article 10 is to protect the rights of the parties under the UN system, including the right of individual and collective defense.

243 See, e.g., Falk, International Law and the United States Role in the Vietnam War, 75 Yale L.J. 1122, 1132 (1966).

244 See Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1643 (1984). Joyner and Grimaldi assert that this is a rule of positive international law in their recent article, relying solely on Schachter without noting that he carefully describes it as a “proposed” rule and that he discusses it in the broader setting of counter-intervention (which may occur without an armed attack) rather than indirect or covert armed attack. Joyner and Grimaldi’s sole legal and policy argument for this critical assumption is the single sentence “[t]hough this limitation may seem inherently unjust, providing opportunities for the instigating culprit, international law sanctions neither the notion that ‘might makes right’ nor that ‘two wrongs make a right’.” Both notions are entirely unpersuasive in determining the scope of the right of effective defense, which is unquestionably “sanctioned” by international law. Joyner and Grimaldi’s argument suffers from two common logical fallacies, non sequitur and petitio principii: “might (does not) make right” as a premise has no relevance to the scope of the defensive right under the Charter. That is, the authors’ proposed conclusion does not follow from their premise; and “two wrongs do not make a right” begs the question as to whether a defensive response is a “wrong.” See Joyner & Grimaldi, supra note 115, at 680–81. See, e.g., S. Barker, The Elements of Logic (1965).

245 See, e.g., Kelsen, supra note 170.

246 See, e.g., Moore, supra note 21.

247 Schachter, supra note 244, at 1643.

248 Subsequently, of course, North Vietnam invaded the South openly with more than 14 regular army divisions in blatant violation of the Paris Accords.

Although in both cases their actions are illegal, because in support of illegal direct invasions, the Soviet response against Pakistan and the Vietnamese response against Thailand are purportedly in response to assistance to insurgents in Afghanistan and Kampuchea, respectively. The factual premise of both the Soviet and the Vietnamese actions is upside down as to who is the attacker and who the defender, but the examples illustrate that the Soviet bloc has not accepted the proposed Schachter “rule.” Nor does it have much following in the Middle East. Apparently, one motive for the Iraqi attack on Iran was Iranian support for insurgents in Iraq. Similarly, more than 30 years of contrary practice show that Israel has not accepted Schachter’s proposed “rule.” Nor has the PRC accepted it in responding to Vietnamese assistance to insurgents in Kampuchea, or France in responding against what it felt to be an FLN rebel garrison at Sakiet-Sidi-Youssef in Tunisia in 1958.

249 See K. Clausewitz, On War (1832); H. Summers, On Strategy (1983).

250 Professor Chayes recently presented the “invisible attack” and “anemic right to defense” arguments in classic form:

[I]f some body, like the U.N. or the O.A.S. has not authorized it—you’ve got a unilateral decision here—the use of force in self-defense is authorized under international law only in the face of an armed attack, if an armed attack has been committed on another country. Then that country can respond by means of self-defense, and its allies can respond with it. So the first point is that, whatever Nicaragua has done, it has not launched an armed attack on anybody. The United States may talk about subversion, or exporting revolution, or whatever, but nobody says that Nicaragua has attacked El Salvador or anybody else. . . . The second point is that self-defense is just what it says. It’s designed to protect you against what the other fellow is doing. You can’t overthrow the other fellow’s government in self-defense. That’s clearly outside the range of what’s permitted in self-defense, and in fact, once the President began to acknowledge openly that the object of the exercise was to make the Nicaraguans cry “uncle,” that really solved the most difficult issue in the case from the Nicaraguans’ point of view, because it’s clear that you are not entitled, in self-defense, to overthrow the other guy’s government.

Chayes on Funding the Contras, Chi. Law., July 1985, at 21, 26–27. There are at least five and possibly six (depending on Chayes’s intended meaning) factual and legal errors in this statement.

First, Chayes ignores the overwhelming evidence of the attack by Nicaragua on its neighbors, particularly El Salvador.

Second, Chayes is in error in arguing that “nobody says that Nicaragua has attacked El Salvador or anybody else.” The point has repeatedly been made by this author, among others, including at an open meeting of the American Society of International Law in the presence of more than a hundred of Professor Chayes’s colleagues and his co-counsel in the Nicaragua case, and in widely published articles. It has been made by both Secretary of State Shultz and the Government of El Salvador in sworn affidavits in the Nicaragua case, and by President Reagan in a speech of Jan. 24, 1985. See also State-Sponsored Terrorism, supra note 2, at 89.

Third, the President’s “uncle” statement does not mean that U.S. policy is to overthrow the Sandinistas by force, a point that is developed in detail in section IV below and thus will not be elaborated on here.

Fourth, Chayes is in error if he means to imply that there is no right of collective defense until authorized in a specific case by the United Nations or the OAS. See the discussion in section III, “The United States Response,” above. To make the inherent right of defense effective, it must not be contingent on a prior Security Council finding of an attack. Chayes is also incorrect if he means to imply that prior OAS—or regional—authorization is required for, or even dispositive of, a legal right of defense against an armed attack. See Arts. 3 and 10 of the Rio Treaty, supra note 153, and Art. 51 of the UN Charter. Moreover, under the Charter the armed attack itself, not any regional determination, gives rise to the right of defense. Chayes’s confusion on this point may stem from a peculiar legal theory he espoused about the Cuban missile crisis, that only OAS authorization confers legitimacy. Paradoxically, at that time he argued that lack of action by the Security Council constitutes authorization for regional enforcement action under Charter Article 53, a distinction that is not generally accepted. See, e.g., Moore, supra note 163, at 158–61; J. Moore, Law and the Grenada Mission 67 n.4 (1984).

Fifth, Chayes is in error in arguing that the right of defense can never extend to overthrowing the government of an attacking state. The scope of the right of defense is determined by necessity and proportionality. For further discussion of this point, see text at note 283 infra.

Finally, Chayes’s view that the scope of the U.S. response, and not the response itself, is “the most difficult issue. . . from the Nicaraguans’ point of view” gives his case away. For if Nicaragua is not attacking its neighbors, the response itself is determinative; and only if it is attacking its neighbors does the scope of the response become “the most difficult issue.” Thus, Chayes is implicitly assuming that Nicaragua is attacking its neighbors without noting that even if he were correct in arguing that the U.S. response is not proportional (which he is not), then both Nicaragua and the United States would be violating the Charter. As we have seen, there is no basis even remotely arguable for the Nicaraguan attacks.

251 See Reisman, , Coercion and Self-Determination: Construing Charter Article 2(4), 78 AJIL 642 (1984)Google Scholar.

252 See, e.g., Wallace, , International Law and the Use of Force: Reflections on the Need for Reform, 19 Int’l Law. 259 (1985)Google Scholar. While raising important questions, in some respects this exercise seems prompted by an unduly narrow conception of existing rights of defense and regional peacekeeping under the Charter.

253 This, I believe, remains the Charter standard.

254 Polls of public opinion in Central American countries and editorials in leading newspapers consistently show great concern about Sandinista policies. Even the Nicaraguans seem to be split over whether support for the contras will encourage pluralism, free elections and protection of human rights. See, e.g., Soviet-Cuban Connection, supra note 14, at 26.

255 See Memorial of Nicaragua, supra note 150, at 3.

256 See Soviet-Cuban Connection, supra note 14, at 33.

257 Diversion of Water from the Meuse (Neth. v. Belg.), 1937 PCIJ, ser. A/B, No. 70, at 76–77 (indiv. op. Hudson, J.).

258 On these events, see generally Christian, S., Nicaragua: Revolution in the Family (1985)Google Scholar.

259 Elsewhere I have argued, as have other scholars such as Professor Rosalyn Higgins, that even the UN General Assembly has no such power. See Higgins, , Internal War and International Law, 59 ASIL Proc 67 (1965)Google Scholar; and Moore, supra note 21, at 28–29. If the General Assembly has no such power, it seems a virtual certainty that the OAS has no such power.

260 See Moore, supra note 21, at 30–31.

261 See the discussion supra at note 96

262 On the other hand, even the contras have not sought the physical overthrow of the Sandinistas. See notes 124–127 supra and accompanying text. See also Declaration of the Nicaraguan Democratic Force of February 21, 1984, in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), U.S. Counter-Memorial, Annexes, Nos. 58–111 (submitted Aug. 17, 1984).

263 See generally Dep’t of State Resource Book, El Salvador’s Run-Off Election (1984).

264 On the Salvadoran elections and international reaction to them, see id., and Dep’t of State, Statements Made after Sandinista Elections (1984). See farther notes 294–295 infra and accompanying text.

265 See the Memorial of Nicaragua, supra note 150. See also statement by counsel for Nicaragua before the Annual Meeting of the American Society of International Law, 79 ASIL Proc. (1985) (forthcoming).

266 N.Y. Times, Feb. 22, 1985, at A14, col. 3.

267 See Memorial of Nicaragua, supra note 150.

268 On the clearly illegal “Brezhnev Doctrine,” see Rostow, supra note 4.

Nonlegal commentators have also fueled the fire of this allegation by supporting such policies in the face of the Soviet Union’s support for the “Brezhnev Doctrine” and Marxist-Leninist “wars of national liberation,” which are reverse sides of a “heads I win, tails you lose” double standard leading to permanent Marxist-Leninist governments. Another reason for the confusion is the failure to understand that there is a fundamental distinction under the Charter between, on the one hand, providing defensive assistance to resistance forces in an illegally attacked nation, as to the Afghan resistance, or assistance to insurgents in an attacking nation, as to the Nicaraguan democratic resistance, and, on the other hand, aggressively intervening to overthrow a government at peace with its neighbors or to prevent a change of form of such a government.

269 See section II, “U.S. Efforts at Peaceful Settlement,” supra.

270 Address by President Ronald Reagan, Dep’t St. Bull., No. 2075, June 1983, at 1, 3.

271 Address by President Ronald Reagan, id., No. 2096, Mar. 1985, at 4–5.

272 Address by President Ronald Reagan, id., No. 2097, Apr. 1985, at 9.

273 U.S. Support, supra note 105, at 209.

274 Copy on file at the Center for Law and National Security (undated).

275 21 Weekly Comp. Pres. Doc. 1015, 1015(Sept. 2, 1985). See also text at note 106 supra.

276 Cruz, Nicaragua’s Imperiled Revolution, 61 Foreign Aff. 1031, 1041–42 (1983). See also Pastora, supra note 90, at 10–11. When the author met privately with Secretary of State Haig early in the Reagan administration, the Secretary was deeply troubled by the intelligence reports on the Sandinistas: the focus of concern was not a government in Managua the United States did not like but its policy of “revolutionary internationalism” and attacks directed against neighboring states.

277 Boland amendment, supra note 117.

278 This legal constraint is policed by a host of oversight mechanisms, including the Attorney General, two congressional select committees, the President’s Intelligence Oversight Board, and the various agency general counsels and inspectors general.

279 See text at notes 249–250 supra.

280 On the importance of La Concha, see Dillon, supra note 80, at A29.

281 Since the peoples of Central America generally have a common language and similar background, it would not be difficult for Nicaragua to infiltrate a substantial number of Nicaraguans into the secret attack on neighboring states. Some Salvadoran Marxist-Leninist groups apparently fought with the Sandinistas against Somoza. The contra policy makes this kind of escalation more difficult.

282 See, e.g., supra note 127 and accompanying text.

283 Only the direct intervention of the People’s Republic of China prevented the realization of this policy.

284 The ascription of this view to me by Joyner and Grimaldi is flatly wrong. Compare their statement, Joyner & Grimaldi, supra note 115, at 680, with the author’s discussion cited by them, id. at 680 n.251.

285 The best official summarization of the Monroe Doctrine is R. Clark, Memorandum on the Monroe Doctrine (1930).

286 Quoted in Graebner, N., Ideas and Diplomacy 143 (1964)Google Scholar. For a recent discussion of the history of the doctrine, see id. at 213–61.

287 Root, , The Real Monroe Doctrine, 8 AJIL 427, 433–34 (1914)Google Scholar.

288 See N. Graebner, supra note 285, at 251.

289 In an earlier era, the Monroe Doctrine was accorded considerable recognition in international law. Thus, Article 21 of the League Covenant said: “Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe Doctrine, for securing the maintenance of peace.” See Hudson, M., International Legislation 1 (1931)Google Scholar. See also the statement by the British negotiator on the right of defense retained under the Kellogg-Briand Pact. Wright, , The Meaning of the Pact of Paris, 27 AJIL 39, 42 (1933)Google Scholar.

290 On the threat to world order posed by activism of major powers in areas of traditional sensitivity to opposing powers, see Moore, supra note 21, at 30.

291 See generally, e.g., Henkin, L., The Rights of Man Today (1978)Google Scholar. On the right of “humanitarian intervention,” see note 21 supra, and Humanitarian Intervention and The United Nations (R. Lillich ed. 1973); and on the right to use force, see Reisman, supra note 251.

292 See generally The Laws of Armed Conflicts (D. Schindler & J. Toman eds. 1981). See also J. Bond, The Rules of Riot (1977).

293 For a general analysis critical of compliance on all sides, see, e.g., Inter-American Commission on Human Rights [IACHR], 1980–81 Annual Report; Iachr, Report on the Situation of Human Rights in the Republic of Nicaragua (1981); Dep’t of State, Country Reports for 1983, supra note 26; Amnesty International, Report of the Missions to the Republic of Nicaragua (1982) (especially the Aug. 1979, Jan. 1980, and Aug. 1980 missions, which focused largely on the “special tribunals”); Americas Watch, Free Fire: A Report on Human Rights in el Salvador (1984); Americas Watch, The Miskitos in Nicaragua 1981–84 (1984); Americas Watch, Human Rights in Nicaragua (1982); Americas Watch, on Human Rights in Nicaragua (1982); Amnesty International, Disappearances in Guatemala (1985).

294 See, e.g., Dep’t of State, el Salvador’s 1985 Elections: Legislative Assembly and Municipal Councils (1985) [hereinafter cited as 1985 Elections].

295 El Salvador’s land reform has made real progress in the past several years. See, e.g., Dep’t of State, Background Notes: el Salvador 6–7 (1985).

296 Coll, Political and Military Losers, Salvador’s Leftists Opt for Terror, Wall St. J., Oct. 18, 1985, at 29, cols. 3–6.

297 See Amnesty International, Amnesty International’s Current Concerns in El Salvador 3–4 (1985).

298 1985 Elections, supra note 294, at 6.

299 The author participated in vigorous questioning of then presidential candidate Duarte on these issues while serving as a member of the U.S. presidential delegation to observe the elections. Our questions focused heavily on the need to strengthen human rights and the judicial system, to control the small, violent right, and to pursue social justice. We were impressed with the depth of Duarte’s commitments on these issues.

300 On this initiative, announced in a speech on Oct. 8, 1984 to the UN General Assembly, see 1985 Elections, supra note 294, at 6. Discussions with the FMLN have been held on at least two occasions, but progress has been blocked by the refusal of the FMLN to participate in free elections and its insistence on forced power sharing. See id.

301 See Dep’t of State, Sustaining A Consistent Policy in Central America: one Year After The National Bipartisan Commission Report 7 (1985).

302 See Coll, supra note 296, at 29.

303 Such as Arturo Cruz, Alfredo Cesar, former head of Nicaragua’s central bank, and Violeta Chamorro.

304 For an analysis of the Nicaraguan election, see Colburn, Nicaragua under Siege, 84 Current History 105 (1985); see also Dep’t of State, Resource Book, Sandinista Elections in Nicaragua (1984).

305 See Soviet-Cuban Connection, supra note 14, at 20.

306 See Broken Promises, supra note 11, at 2.

307 See Leiken, , Sandinista Corruption and Violence Breed Bitter Opposition: Nicaragua’s Untold Stories, New Republic,Oct. 8, 1984, at 28 Google Scholar; see also Broken Promises, supra note 11, at 11–16.

308 See Dep’t of State, Country Reports For 1983, supra note 26, at 643.

309 See id. The Grenada documents are particularly revealing on efforts to control the church in Cuba and Grenada and the “people’s church” strategy. These documents also illustrate especial paranoia toward the “Socialist International” and consistent efforts to penetrate and frustrate this independent and non-Communist world socialist movement. See generally Dep’t of State, Grenada Documents: an Overview and Selection (1984).

310 See Dep’t of State, Chronology of Church-State Confrontations and State of Emergency (1985), and Recent Developments in Nicaragua (1985).

311 See Colburn, supra note 304, at 105.

312 See Lantigua, , Sandinista Talks with La Prensa, Wash. Post,Mar. 25, 1985, at A12 Google Scholar, col. 1.

313 Id.

314 See IACHR, Report on the Situation, supra note 293, at 74–86.

315 The COSEP study reports that “Jose Esteban Gonzalez, head of the Permanent Human Rights Commission before, during and after the revolution that overthrew Somoza, attests that: ‘during the first months, from July 1979 until February 1980, the Sandinistas executed in jail no less than two thousand prisoners’.” See COSEP, supra note 22, at 21. See also the quotation from Ismael Reyes, head of the Nicaraguan Red Cross, id. at 23.

316 Babcock, , Defector Assails Sandinistas on Human Rights, Wash. Post,Sept. 19, 1985, at A26 Google Scholar, cols. 1–6.

317 Information Supplied by Alvaro Baldizon Aviles, supra note 28, at 1, 7 and 9.

318 See, e.g., Dep’t of State, Country Reports for 1983, supra note 26, at 646; Durenberger, Human Rights and Dissent in Nicaragua, 130 Cong. Rec. S6599 (daily ed. June 5, 1984). See also id. at S6600–05 (statement of executive director of nongovernmental Permanent Commission on Human Rights).

319 See Broken Promises, supra note 11, at 6–10.

320 See Department of State diplomatic notes from the United States to Nicaragua regarding the arrest on their yacht Wahine on Aug. 6,1985 and detention of U.S. citizens Leo and Dolores Lajeunesse.

321 See Broken Promises, supra note 11, at 19.

322 Id.

323 Id.

324 Id. at 19–22. See also 1achr, Report on the Situation of Human Rights in The Segment of the Nicaraguan Population of Miskito Origins (1983). Professor Bernard Nietschmann declared on Oct. 3, 1983:

In several villages I talked to people who had witnessed the arbitrary killing of Miskito civilians by Sandinista military forces. Many of these killings occurred during one of several Sandinista military invasions and occupations of Indian villages. Some of the villagers were arbitrarily shot when the government soldiers first invaded the villages; others were killed during the weeks of occupation, confinement, torture and interrogation. For example, it was reported to me by several different first-hand sources that one man was nailed through his hands and ankles to a wall and told he would remain there until he either confessed to being a “contra” or died. He died. His widow, dressed in black, and others in that traumatized village were filled with grief and anger over this and other atrocities committed during their forced confinement under a reign of terror by several hundred Sandinista soldiers. Other Miskitos were killed by forcing their heads under water to extract confessions of “counterrevolutionary” activities. Two older men, 60 and 63 years of age, were threatened with death unless they confessed to involvement with “contras.” They too were finally killed in the course of these same events.

Throughout my notes and tape recordings are descriptions of such killings in village after village in the Atlantic Coast Indian region. Descriptions were given to me by wives, daughters, mothers, and other relatives and villagers. The occurrence of arbitrary killings of Miskito civilians appears to be widespread. A pattern is readily seen. Miskito men and women are accused of being contras, tortured or threatened with death unless they confess, killed, and then reported as having been contras, if indeed, there is any report at all.

Statement by Professor Bernard Nietschmann to the Indian Law Resource Center, Washington, D.C. (Oct. 3, 1983).

325 See Broken Promises, supra note 11, at 23. See also Wash. Post, Oct. 28, 1985, at A18, col. 5.

326 See section II, “Contra Assistance as a Response,” supra.

327 See Cody, , Nicaraguan Crackdown Seen Aimed at Church, Wash. Post,Oct. 17, 1985, at Al Google Scholar, A33, cols. 2–4. See also Dep’t of State, Suspension of Civil Rights in Nicaragua (1985). The following rights and guarantees provided for in Decree No. 52 of Aug. 21,1979 were suspended: Article 8 (right of individual liberties and personal security); Article 11 (right to be presumed innocent until proven guilty and right to appeal); Article 13 (right to a trial); Article 15 (freedom of movement); Article 18 (freedom from arbitrary interference in personal life, family, home and correspondence); Article 20 (freedom of information); Article 21 (freedom of expression); Article 23 (right of peaceful assembly); Article 24 (freedom of association); Article 31 (right to organize unions); and Article 32 (right to strike).

328 For a minimal list, see supra note 20. Repeated charges of U.S. “genocide” by the Sandinistas may reflect a concern that their policies toward the Indians of the Atlantic region could be challenged as genocide under the Genocide Convention, supra note 20. For such charges against the United States, see, e.g., Comandante Ortega’s statement to the UN General Assembly, Wash. Post, Oct. 3, 1984, at A24, cols. 1–2.

329 See Americas Watch, Violations of The Laws of War by Both Sides in Nicaragua 1981–85 (March 1985); and id. (1st Supp. June 1985). Americas Watch is particularly weak on law of war issues: e.g., it condemns the contras’ small-scale mining of harbors as indiscriminate without analyzing whether it met the standards established by the Hague Convention, supra note 183, and fails completely to discuss the charges of widespread indiscriminate use of land mines by FMLN insurgents in El Salvador. On the submarine mine issue, see supra note 183.

330 See supra note 324.

331 Common Article 3 of the 1949 Geneva Conventions for the Protection of Victims of War applies to conflicts “not of an international character.” See, e.g., Art. 3, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365,75 UNTS 287. Of course, if the conflict is considered an international conflict, then the full guarantees of the Conventions apply.

332 Pastora, supra note 90, at 12.

On other violations and the use of civilian terror by the FMLN in El Salvador, see, e.g., El Salvadoran Guerrillas Execute 18, supra note 183, at A25; Kirkpatrick, , The Suffering of a Father/ President, Wash. Post,Oct. 6, 1985, at D7 Google Scholar, cols. 2–4 (on kidnapping of President Duarte’s daughter and 13 mayors); Cody, , Duarte, Citing Threats, Sends 7 of Family to U.S., Wash. Post,Oct. 15, 1985, at A 11 Google Scholar, cols. 1–6; Omang, , Land Mines Take Toll in El Salvador, Wash. Post, Sept. 17, 1985, at A19, cols. 3–6 Google Scholar (the FMLN “is strewing the earth with land mines”); McCartney, , Split Noted in Salvadoran Rebel Front, Wash. Post,Aug. 19, 1985, at A1, col. 4 Google Scholar (on politicians’ criticism of guerrillas for attacking civilian targets). On the FMLN’s use of human rights issues to spread disinformation against El Salvador, see, e.g., Young, supra note 124, at 321; Dep’t of State, The Battle of Suchitoto: An Example of Guerrilla Deception (1984).

333 See, e.g., the two Americas Watch reports, supra note 329. See also D. Fox & M. Glennon, supra note 95. Although the authors are clearly sincere, their use of a Sandinista governmental car and driver, and the procedures employed, e.g., in selecting and interviewing persons and reporting the results, significantly flawed the report. On designing social science research, see generally Campbell, D. & Stanley, J., Experimental and Quasi-Experimental Designs for Research (1966)Google Scholar.

334 The difference is that between U.S. conduct in Vietnam, which had its Lt. Calleys, and North Vietnam’s deliberate strategy of terrorism against the civilian population and mistreatment of prisoners of war. See, e.g., Lewy, G., America in Vietnam, chs. 7, 8, 9 and 10 (1977)Google Scholar.

335 But Americas Watch—which of human rights groups seems to be the most sympathetic toward the Sandinistas—does conclude that the contras “practice terror as a deliberate policy.” See the Americas Watch report of March 1985, supra note 329, at vi.

336 See Los Angeles Times, Mar. 16, 1985, at 14, cols. 1–3.

337 See Muravchik, , Manipulating the Miskitos, New Republic,Aug. 6, 1984, at 21–25 Google Scholar.

338 This refers to the Reed Brody report, supra note 139. Mateo Guerrero, former executive director of the Nicaraguan Human Rights Commission, describes the evolution of the report as follows:

In September 1984, Bendana ordered the CNPPDH to provide full support to American lawyers Reed Brody and James Bordelon who were preparing a report on human rights abuses allegedly committed by the armed opposition—a report to be used in the United States by groups opposed to U.S. policy. The CNPPDH provided Brody and Bordelon with an office at its headquarters in Managua, lodging in an FSLN-owned hotel managed by commission member Zulema Baltodano, and transportation. It also paid all the bills incurred during their visit, totaling some 50,000 cordobas, which Bendana agreed to reimburse out of Foreign Ministry funds. Sister Mary Hartman, an American nun who works for the CNPPDH, arranged the interviews and sent Brody and Bordelon to investigate cases she believed would have most impact on the lawyers and the public.

See Inside Sandinista Regime, supra note 28, at 3.

The “contra manual” controversy also seems to have erroneously fueled human rights charges against the contras. In an early version, this training manual for contra forces did use several ambiguous translations and phrases that could have been interpreted as supporting violations of the law of war. Even ambiguity in such a setting, of course, is wrong. After the manual had been locally corrected and erroneous versions withdrawn, a controversy arose about the original manual. An independent investigation by the House Permanent Select Committee on Intelligence and the President’s Intelligence Oversight Board, among others, turned up no evidence that the original manual had been instrumental in any law of war violations or had been so intended. Indeed, the investigations revealed that a principal purpose of the manual was to train in humane principles and that it and the accompanying training were filled with references to the need to protect civilians and persons under the insurgents’ control. Moreover, it had been so interpreted by those who used it. See Psychological Operations in Guerrilla Warfare 48 (1985).

Paradoxically, David Nolan has pointed out that it was Sandinista strategy during the revolution “to eliminate the government presence through the assassination of the jueces de mesta” (defined by Nolan as “local constabulary”). D. Nolan, supra note 8, at 46.

339 One possibility for improvement would be for all sides to accept the standards of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Dec. 12, 1977, reprinted in 16 ILM 1442 (1977).

340 Although Guatemala has had a poor human rights record, the Mejía Government has been moving toward democratic pluralism and improved standards of human rights. See Bureau of Public Affairs, Dep’t of State, Current Policy No. 655, The Need for Continuity in U.S. Latin American Policy 3 (1985). Costa Rica, of course, has always had one of the best records in the world on human rights.

341 Their haste in doing so seems to reflect a calculation that the unique circumstances that permitted the comandantes to take power in Nicaragua would not last long, and perhaps also a burst of ideological fervor following the first successful Cuban-style takeover of a Latin American country since Castro began advocating that strategy more than 25 years ago.

342 Radical regimes do not in all cases subscribe to a common ideology. Some, such as Cuba, are motivated by Marxism-Leninism; others, such as Iran under the Ayatollah Khomeini, by a religious vision; and still others, such as Libya under Muammar Qaddafi, by a unique blending of nationalism and a charismatic leader. Despite substantial differences, in large measure they share the symptoms of what I have called the “radical regime syndrome.” For details, see Moore, supra note 4.

343 See, e.g., C. Sterling, supra note 2; see also Sandinistas and Middle Eastern Radicals, supra note 8. According to this report:

The FSLN government has issued Nicaraguan passports to radicals and terrorists of other nationalities, including radicals from the Middle East, Latin America, and Europe, thus enabling them to travel in Western countries without their true identities being known. PLO agents working in Central America and Panama use Nicaragua as their base of operation. The Sandinistas’ willingness to provide new documentation and a base from which to travel is undoubtedly one reason why Nicaragua has become a haven for terrorists and radicals from Europe as well as Latin America.

Id. at 13.

344 See 21 Weekly Comp. Pres. Doc. 876–82 (July 15, 1985) (remarks by President Reagan to ABA).

345 The political and security interests of the United States and Japan, and of the other NATO, Anzus and Rio Treaty states with respect to aggressive Soviet-bloc interventions in Central America are real and substantial. They include the following considerations:

• The strategically important Panama Canal is within MiG-23 range of airfields being built in Nicaragua. The Canal is vital to regional and global trade. One-quarter of United States seaborne imports transit the Canal. In a Far East defense emergency, as much as 40% of reinforcements and defense supplies would be moved westward through the Canal. In a NATO defense emergency, western based reinforcement divisions would be moved eastward through the Canal and the Caribbean to Europe.

• Caribbean sea lanes would be more vulnerable to air and sea attack from sophisticated airfields and naval bases now being built in Nicaragua with East-bloc assistance. A substantial amount of Latin American seaborne trade and two-thirds of all U.S. seaborne trade pass through the sea lanes of the Caribbean and the Gulf of Mexico. These Caribbean sea routes carry three-quarters of U.S. oil imports and over half of U.S. strategic mineral imports. (In World War II, a mere handful of German submarines without bases in the area sank more tonnage in the Caribbean than the entire German fleet in the North Atlantic.)

• Critical refineries and oil transshipment points important to all the Americas are located throughout the Caribbean and the Gulf of Mexico.

• In a NATO defense emergency, over 50% of NATO resupplies and a substantial number of NATO reinforcements would originate from Gulf Coast ports with enhanced vulnerability to air and sea attack. The United States and NATO can ill afford a second front in the Caribbean, which could require force levels approximating those planned for NATO reinforcement.

• The Punta Huete airfield in Nicaragua can land nuclear-capable Soviet Backfire bombers and, for the first time, can make it possible to fly TU-95 “Bear” intelligence flights down the West Coast of the United States, as have been flown from Cuba on the East Coast.

• The Nicaraguan military buildup is seriously destabilizing the traditional Central American military balance. Should Nicaragua add high-performance fixed-wing aircraft to its substantial army buildup (its pilots have been training in Bulgaria for such aircraft), as has Cuba, it would be able to overwhelm any of its neighbors in a conventional attack. Even now, it poses a major problem for nations such as Costa Rica, which has maintained no military forces. Why should Nicaragua’s neighbors be forced to divert resources from social goals to maintaining a regional military balance?