Counterinsurgency: A Permitted Intervention?

• Author: Lieutenant Colonel John J. Dougiass
• Pages: 02

I. INTRODUCTION

Liberstion wars %ill continue to exist as long as imperialism exists, silong ai c~lmiaiism exists. These am revolutionary w a n Such wars are not only admissible but Inmtsble, since the edmisliit~do not grant in. dependence valuntarilg. . .What is the attitude of the Marxiats toward such uprisings? A most positive one. These uprisings must not be identified with wmi among states, aith lwsi wars. since in there up~is-ings the people are fighting for implementation of then right of seif-determination, for independent social and national development. These are Uprisings against rotten TeactiDnaIy regimes. against the ~0ionlzer8. The Cammuniits fully suppart such just wars and march in the front rank with the peoples waging liberation 8trugglea.l

This was the statement of Chairman Khrushchev in his speech of 6 January 1961 forcefully setting forth the views of the Communists toward revolution and insurgency and a "doctrine of permanent intervention."Q In response to this declaration of sup-port of uprisings against legitimate governments, the United States, under the leadership of President Kennedy began a pra-gram designed to stabilize threatened governments. In his message of 28 March 1961 to the Congress, President Kennedy advised that he had directed the Secretary of Defense ta take the steps necessary to meet this threat and to orient our military forces

' This article WBQ adapted from a them presented to the United States Army War College, Carlide Barracks, Pennayiuania, Bhile the author was a student there. The opinions and eonciusiona pmsented herein .we those of the author and do not neeesaariiy represent the Views of the United States Arm" War Colleee. The Judm Advocate General's School or an" other governmental agency.

"'JAGC, U. S. Army; Office of the Judge Advocate, U. S. Army. Europe; A.B., 1943, University of Nebraska, J.D.,

"'JAGC, U. S. Army; Office of the Judge Advocate, U. S. Army. Europe; A.B., 1943, University of Nebraska, J.D.,

19S2, University of Michigan, Y.A, 1963, George Washington Univermty; Member of the Bar of tho States of Michigan and Nebraska.

>Address by N. K. Khruihehev to Higher Party School, Academy of Socisl Sciences, Institute of Marxian.Leninmm of the Central Committee, Cam-munist Party of the Soviet Union, J m 6, 1961.

2 Beiehmsn, Thza Yiserable lasus, Columbia University Forum, Fall 1961. P. 49.

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19S2, University of Michigan, Y.A, 1963, George Washington Univermty; Member of the Bar of tho States of Michigan and Nebraska.

>Address by N. K. Khruihehev to Higher Party School, Academy of Socisl Sciences. Institute of Marxian.Leninmm of the Central Committee. Cammunist Party of the Soviet Union, J m 6, 1961.

2 Beiehmsn, Thza Yiserable lasus, Columbia University Forum, Fall 1961. P. 49.

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JOHN JAY

DOUGLASS**

appropriately.3 In reviewing the program some months later, Mr. Walt W. Rostaw said,

, , , the whole Government under the leadership of the President, has turned wth extraordinary to rhe problem of learning haw to deal with the technlquer af subwrmn and Eueinils warfare on ahich the inrernatmai Comrnurrpt plaeea such hwh hopes for the 1960's 4

It is the policy of the United States to provide a countervailing force to the communist program of planned insurrection. From this policy arose the theme af this study Is there a legal basis for the United States to assist foreign governments in caunterinsurgency? Modern instances of counterinsur&!enc.s participation need to be examined from R legal vantage point. To do this it is necessary to determine the customary international law on the subject and further to determine whether the membership of the United States in the Lnited Sations and the Organization of American States changes, limits, or affects the law By applying the law to recent efforts of the United States, it will then he possible to reach conclusions ad to the legal authority and limitations af the United States to engage in such operations.

The question of the lawfulness of intervention by armed forcei, under the law of nations, is not a new one. In 1898, Captain Wil-liam B. Reynolds discussed the problem with military officers in his lectures at the Uhited State Infantry and Cavalry SchooL5 Notwithstanding extensive Study of the law of intervention during this century, the legal problem of intervention a8 I t relates to counterinsurgency has not been resolved. Both Professor Sohn of Harrardhaye noted the lack of concern with this specific area of the law of intervention. Bath have expressed the need for further study of the subject because of its importance. Professor Sohn believes that there shouid be Some hard thinking about what rules "on the subject are in the best long range interest of the United States."

and Professor Bishop of the University of Michigan

8 L.~'BOL+ Yational SelUs Addreis by President Kennedy to Joint Session

of Congress, May 25, 1861, in 44 DFP'T STATE BLLL sf BO3 (1961).

+Whir< W r Sfniid, Address by Kalt V. Rortow, drilwred la 1962 Dernocraric Vomen'a Conference, R'aihmgton, D C , May 21, 1962, in 16DEP'T ST.ATE BOLL. at B G i (19621.

5 Reynolds, Infi~vmt.on, Lectures, PS lnfanfrs and Carairy Schaal, March 1898.

6 Letter ta the author from Professor Louis B. Sohn. E m i r Profemr of Law, Harrnrd Unweralw Oet 30, 1962.

1 Letter to the author from Profem? Willlam V.

Bishop, Profewr of

Lae. The Onli'srilt? of Mlchipan Law Sehaal, Nor. 8,

1862.

44 A00 OY7-B

~~

COUNTERINSURGENCY

The United States cannot seek a world of law and act in dis- respect of the law. Acts in accord with the law are necessary bath for America's image abroad and to secure support for such policies at home. International law is a part of the law of the United States "which must be ascertained and administered by the courts of appropriate jurisdiction."s A determination of the lawfulness of American assistance to the established governments in caunterinsurgency may well determine ather important legal questions arising not only in international courts and tribunals but in national courts as wll. Examples of the legal ca8es which may arise are claims against the United States, war crimes charges, or the status of United States military personnel taken prisoner.1°

The Soviets speak before the world in legalistic terms and hare perfected a technique of misusing legal terms in "order to conceal, instead of reveal truth."'l The United States must be prepared to ~nsiverin the language of the law before the forums of the world.lZ This article is concerned with the military actions of armed forcer of the Lnited States to assist in auppresaing the more violent aepects and activities of insurgent groups. While the problem of supporting insurgency is of interest, that subject is beyond the scope of this article, although certain principles may emerge which may be of guidance in any such subsequent undertakinp. Kor is it the purpose of this article to consider the problem of international intervention by recognition of governments or refusal of recognition except as such matters may bear on the legality of the use ofarmed force. The question of whether or not to intervene as a matter of policy is not within the purview of this article. Although there may be moral implications of accepting the tar-brush of nationalism, ealanialism, or imperialism in furnishing support to legitimate and established governments, these considerations do not bear on the legal problem here under investigation.

8"When the United States . . . assumed the character af an Independent nation, they came rvbieet to that asntem of rdes which reasan, morality and eu~rom had established among civilized nations of Europe. . . . The faithful observance of this law is ennential to national character." KEYT,

COM-

MEITARIES Ox AllERlCAl LAn 1 (1826).

8 The Paqvette Habana, 175 U S. 677 (1900).10 see Greenspan, InLernotional LUW and lis Protection ior Partio.ponta m Cnconieriiioaol A arforr, 311 Arhars OF TXE AMERICA\ ACADPMI OFPOLITICAL AVD SOCIAL SCIIYCE 30 119G21.

I1 hlurdock, Collsctws Security Distinguiahsd From Intsruenfion, 56 A x

d. IIPotter, Logo1 Aspaota of the Betrut Landmg, 52 Am. J. INT'L L. 727 IN'T'L L. 500 (1962).(1958).

11. INTERVENTION IN INTERNATIONAL RELATIONS Before determining the rules and principles af the international law of intervention, it is first necessary ta define the term in eo"-cept and in practice. What have the students of foreign relations and international law meant by the term intervention? Is the concept universally understood? What have been the intervention and nonintervention policies and practices of nations, particularly the United States? A definition and an historical perspective of intervention clearly will provide the backdrop for the legal search.

The term "intervention" is widely used in international law and foreign relatima. Despite its wide usage, it is most difficult to define its true meaning. The term is used far variou situations and for various purposes by individual writers. Further confusing the problem, is the use by the same writer of the term to include situations which do not fall within his carefully deiineated boundaries. Strauz-Hupe and Possony say, "intervention is a term with many legal meanings."" Students of international law have utilized that meaning of the term they found convenient to wcomplish their predetermined view of the legality of a particular situation with which they were concerned. Varying use8 of the term prove Fenwick correct when he says that "of all the terms in general use in international law, none is more challenging than that of 'intervention.'

To some authorities, the term intervention means the interference of a third state into a conflict between two other powers, to include the use of armed farce or the offer of good offices. They would hare inciuded the participation af the United States in World Wars I and I1 as examples of intervention. In fact, in Volume I1 of...