US Policy During the Iran / Iraq War

On the domestic level, current U.S. neutrality
legislation dates back to the first Neutrality Act of June 5,
l794 (1) which expired after two years and was renewed in l797
for two more years 2 before its permanent enactment with amendments
by an Act of April 20, l8l8. (3) The l8l8 Act made it a crime:
for an American citizen within U.S. territory to accept and exercise
a commission in the military forces of a foreign government engaged
in a war against another foreign government with which the United
States was at peace; for any person within U.S. territory to
enlist or to procure the enlistment of another person, or proceed
beyond U.S. territory with the intent to be enlisted in the forces
of a foreign sovereign, subject to a proviso for transient foreigners;
for any person in U.S. territory to fit out and arm a vessel
for the purpose of engaging in hostilities on behalf of a foreign
sovereign against another foreign sovereign with which the United
States was at peace; for any U.S. citizen outside U.S. territory
to fit out and arm a vessel of war for the purpose of committing
hostilities on U.S. citizens or their property; for any person
within U.S. territory to increase or augment the force of foreign
armed vessels at war with another foreign government with which
the United States was at peace; and, finally, for any person
in U.S. territory to set on foot any military expedition or enterprise
against the territory of a foreign sovereign with which the United
States was at peace.4 The President was authorized to employ
the land or naval forces or the militia for the purpose of carrying
the provisions of the l8l8 Act into effect or to compel any foreign
ship to depart from the United States when so required by the
laws of nations or treaty obligations.5

Historically, the United States government
played a leading role in the development of the international
laws of neutrality by endeavoring to obtain general acceptance
of its internal policy pronouncements on such matters from the countries of Europe
throughout the late eighteenth, nineteenth, and early twentieth
centuries. Such active support for the institution of “neutrality”
was due to the fact that during this isolationist period of its
history, the United States government anticipated being neutral
in the event of another general war in Europe. For example, the
aforementioned proscriptions of U.S. domestic neutrality legislation
and practice found their way into the three great principles
of the seminal 1871 Treaty of Washington concluded between the
United States and Great Britain that settled the famous “Alabama
Claims” arising out of the latter’s provision of assistance
to Confederate raiders during the American Civil War.6 The three
rules of article 6 provided that:

A neutral Government is bound

First, to use due diligence to prevent
the fitting out, arming, or equipping, within its jurisdiction,
of any vessel which it has reasonable ground to believe is intended
to cruise or to carry on war against a power with which it is
at peace; and also to use like diligence to prevent the departure
from its jurisdiction of any vessel intended to cruise or carry
on war as above, such vessel having been specially adapted, in
whole or in part, within such jurisdiction to war-like use.

Secondly, not to permit or suffer either
belligerent to make use of its ports or waters as the base of
naval operations against the other, or for the purpose of the
renewal or augmentation of military supplies or arms, or the
recruitment of men.

Thirdly, to exercise due diligence in
its own ports and waters, and, as to all persons within its jurisdiction,
to prevent any violation of the foregoing obligations and duties.7

Although formulated with reference to
a non-international armed conflict (i.e., the U.S. Civil War),
these three principles were eventually considered to enunciate
requirements of customary international law concerning neutrality
that were applicable to an international armed conflict as well.

On the international level, the next
major development in the institution of “neutrality”
occurred when the First Hague Peace Conference of 1899 adopted
a voeu to the effect that the second conference should consider
the question of the rights and duties of neutrals in warfare.8
Pursuant to that wish, the Second Hague Peace Conference of 1907
adopted the Convention Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land9 and the Convention
Respecting the Rights and Duties of Neutral Powers in Naval War.10
In addition, the l907 Convention Relative to the Laying of Submarine
Contact Mines was primarily designed to protect neutral shipping,11
and the l907 Convention Relative to Certain Restrictions on the
Exercise of the Right of Capture in Maritime War contained protections
for neutral postal correspondence.12 When the Great War in Europe
erupted in the summer of l9l4, the United States was a party
to these four Hague Conventions.13 Since the time of that conflagration,
these two major 1907 Hague neutrality conventions governing land
and sea warfare, respectively, have been universally considered
to enunciate the rules of customary international law on this
subject that binds parties and non-parties alike even until today.

Taken as a whole, the laws of neutrality
were designed to operate in a system of international relations
where war was considered to be an inescapable fact of international
life and yet where the outbreak of war, between even major actors,
did not automatically precipitate a total systemic war among
all global powers. According to the laws of neutrality, the conduct
of hostilities by a belligerent was supposed to disrupt the ordinary
routine of international intercourse between neutral nationals
and the belligerent’s enemy to the minimal extent required by
the dictates of military necessity.14 Such arrangements were
intended to permit the neutral power to stay out of the conflict;
at the same time, they allowed its nationals to take advantage
of international commerce and intercourse with all belligerents.

The political and strategic dimensions
of the international laws of neutrality were complicated by the
fact that they operated upon the basis of a legal fiction concerning
the neutral government’s reputed non-responsibility for what
were intrinsically non-neutral acts committed by its citizenry
against a belligerent during wartime. Generally, a belligerent
state could not hold a neutral government accountable for the
private activities undertaken by the neutral’s citizens–even
if they worked directly to the detriment of the belligerent’s
wartime security interests. The laws of neutrality were essentially
predicated upon Lockeian assumptions concerning the nature of
government and its proper relationship to the citizen: namely,
that the political functions of government must impinge upon
the private affairs of the citizen to the least extent possible,
especially in the economic realm where the right to private property
and its pursuit were deemed fundamental.15 Typical of this Lockeian
attitude was the prohibition on the confiscation of private property
found in article 46 of the Regulations annexed to both the l899
and l907 Hague Conventions with Respect to the Laws and Customs
of War on Land.16 In the same category fell the futile attempts
by the United States government at both the First and the Second
Hague Peace Conferences to secure international agreement upon
the principle of immunity from capture and confiscation of noncontraband
private property during maritime warfare.17

Hence, the primary duty of a neutral
government was to maintain strict impartiality in its governmental
relations with all belligerents. Yet the laws of neutrality specifically
denied that the neutral government had any obligation to guarantee
that its nationals conduct their affairs with belligerents in
a similar fashion or, indeed, in accordance with any but the
most rudimentary set of rules. For example, according to the
l907 Hague Convention Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land, the territory of neutral
powers was “inviolable” (art. l), and belligerents
were forbidden to move troops or convoys of either munitions
of war or supplies across the territory of a neutral power (art.
2). Yet a neutral power was not required to prevent the exportation
or passage through its territory, on account of either belligerent,
of arms, ammunition or anything useful to an army or navy (art.
7); or to forbid or restrict the use, in behalf of belligerents,
of telegraph or telephone cables or wireless telegraph apparatus
belonging to it or to companies or private individuals (art.
8); provided that all restrictive or prohibitive measures taken
by a neutral power in regard to these matters be applied uniformly
to both belligerents, and this rule must be respected by companies
or individuals owning such telecommunication facilities (art.
9). The national of a neutral power would not compromise his
neutrality by furnishing supplies or loans to one of the belligerents,
provided he did not reside in the territory of the other belligerent
or territory occupied by it and that the supplies did not come
from these territories (art. l8). Finally, article l0 made it
clear that it would not be considered a hostile act for a neutral
power to take measures, even forcible, to prevent violations
of its neutrality.

In a similar vein, according to the l907
Hague Convention Respecting the Rights and Duties of Neutral
Powers in Naval War, belligerents were bound to respect the sovereign
rights of neutral powers and to abstain, in neutral territory
or neutral waters, from any act which would, if knowingly permitted
by any power, constitute a violation of neutrality (art. l);
and any act of hostility committed by belligerent warships in
the territorial waters of a neutral power was deemed to constitute
a violation of neutrality and was strictly forbidden (art. 2).
In return, a neutral government could not supply warships, ammunition,
or war materials of any kind to a belligerent under any circumstances
(art. 6). Yet the neutral government was under no obligation
to prevent the export or transit for the use of either belligerent
of arms, ammunitions, or, in general, of anything which could
be of use to any army or fleet (art. 7). Nevertheless, the neutral
power must apply equally to the two belligerents any conditions,
restrictions, or prohibitions made by it in regard to the admission
into its ports, roadsteads, or territorial waters of belligerent
warships or of their prizes. Finally, article 26 made it clear
that a neutral government’s exercise of its rights under the
convention could never be considered an “unfriendly act”
by any belligerent that was a contracting power.

Historically, the United States government
had vigorously opposed the international recognition of any requirement
for neutral powers to impose a mandatory embargo upon trade in
contraband of war between neutral nationals and belligerents
for the express purpose of ensuring the economic well-being of
American citizens during a European war in which the United States
expected to remain neutral.18 Yet contraband of war shipped by
neutral nationals to a belligerent was properly subject to capture
and confiscation by the offended belligerent. Nevertheless, the
belligerent had to undertake these actions in accordance with
the laws of war at sea and the international law of prize. For
this reason, then, these latter two interrelated bodies of customary
international law can also be said to have contained important
protections for the rights of neutrals during an international
armed conflict.

As a result of the failure by the Second
Hague Peace Conference to codify this international law of maritime
warfare and prize, Great Britain summoned a conference of representatives
of the major maritime powers of the world (Germany, the United
States, Austria-Hungary, Spain, France, Great Britain, Italy,
Japan, the Netherlands and Russia) to meet in London at the end
of 1908. The goal of this conference was to determine the generally
recognized principles of international law applicable to maritime
warfare and national prize adjudications. This meeting resulted
in the 1909 Declaration of London Concerning the Laws of Naval
War.19 The Declaration of London built upon the foundations established
by an informal compromise on the codification of maritime warfare
that had been worked out, but not adopted, at the Second Hague
Peace Conference. At the beginning of the First World War, the
Declaration of London was generally considered to be the most
authoritative enunciation of the customary international laws
of maritime warfare applicable to belligerents in their conduct
of hostilities as well as by the belligerents’ respective national
prize courts.20 Its provisions set forth substantial protections
for the rights of neutral nationals that were generally honored
by both sets of belligerents during the first two years of the
Great War.

Without the recognition of a status such
as “neutrality” by international law, non-belligerents
would be virtually compelled by circumstances to choose up sides
in a war so as to maintain political and economic relations with
at least one set of belligerents. In theory, the neutral state
had an economic disincentive to participate in the war because
its citizens could greatly prosper from an increasing degree
of only moderately restricted international trade with all belligerents
in desperate need for more goods purchased from nationals of
the neutral state. Conversely, a belligerent would supposedly
not act to violate the neutral’s rights and those of its nationals
in order to keep the neutral from entering the war on the side
of its enemy. Another theory prevalent at the time held that
since the number and strength of neutral states in a future war
would be proportionately greater than those of belligerents,
the community of neutral states could impose obedience to the
laws of neutrality upon the belligerents.21

In practice, however, these theories
were undercut by the fact that each neutral’s normal international
trading patterns invariably worked to the greater advantage of
one set of belligerents during the war.22 So the disadvantaged
belligerent had to engage in a complicated cost-benefit analysis
over whether the greater harm was the continued sufferance of
this strategic disadvantage in trade or its termination through
outright destruction of the neutral commerce with the consequent
risk that the neutral power would eventually enter the war against
it. Also, instead of acting as part of some international community
of neutrals, each neutral state constantly assessed the relative
advantages and disadvantages of maintaining its own neutrality
as opposed to belligerency on one side of the war or the other
in accordance with quite selfish calculations of its own vital
national security interests. Unless guaranteed by treaty, the
violation of one neutral’s rights did not obligate another neutral
to declare war or even to undertake measures of retorsion against
the violator.

For example, the United States did not
enter the First World War in order to defend the international
laws of neutrality in the abstract. This was evidenced by its
failure to consider the German invasions of either neutral Belgium
or neutral Luxemburg as a casus belli. It was only when Germany’s
gross and repeated violations of American citizens’ neutral rights
of trade and intercourse with Great Britain seriously interfered
with their ability to engage in international commerce which
resulted in the large-scale destruction of American lives and
property that the United States government invoked the sacred
cause of neutrality as one of the primary justifications for
its intervention into the war. It was generally believed within
the United States that the quality and quantity of violations
against its neutral rights by the Allied Powers were of a nature
and purpose materially different from, and far less heinous than,
those perpetrated by the Central Powers — i.e., destruction
of property as opposed to destruction of life and property.

As the intensity of the war heightened
and the Allies imposed their stranglehold over commerce shipped
by nationals from the neutral United States to the continent
of Europe, the Central Powers took the position that the American
government was under an obligation to take affirmative measures
to rectify the developing imbalance of trade in arms, munitions,
and supplies that U.S. nationals were successfully transporting
to the Allies but not to them. Yet the United States government
was quite emphatic in its rejection of their complaint. If one
belligerent was militarily unable to secure the safe passage
of neutral commerce to its shores because of the misfortunes
of war, that was its problem and not that of the neutral government,
which possessed the perfect right under international law to
permit its citizens to continue trading with the militarily more
powerful belligerent. For a neutral government to discriminate
in favor of the weaker belligerent in order to compensate for
the military imbalance would constitute an unneutral act that
could ultimately precipitate a declaration of war upon it by
the stronger belligerent. Moreover, it was argued that even if
the neutral government were to embargo all trade in contraband
of war by its citizens with both sets of belligerents, this affirmative
departure from the normal rules of neutral practice during the
course of an ongoing war could compromise its neutrality.23

The U.S. government’s insistence upon
the international legal right of its citizens to trade with the
Allies no matter how unequal the military situation appeared
would play a significant part in the decision by the Central
Powers to pursue their policy of waging “unrestricted submarine
warfare” in order to destroy this vital neutral commerce
irrespective of the international laws of neutrality and of the
laws of war at sea. The United States government would eventually
respond by entering the war in order to secure those rights of
its nationals and thus uphold the international laws of neutrality
and armed conflict. Indeed, that was exactly how the European
system of public international law was supposed to operate before
the foundation of the League of Nations.

Resort to warfare by one state against
another was universally considered to constitute the ultimate
sanction for the transgressor’s gross and repeated violations
of the victim’s international legal rights. The United States
ultimately fought in the Great War precisely in order to vindicate
the international laws of neutrality. America’s decision to abandon
its neutrality and enter the war on the side of the Allied Powers
ineluctably spelled defeat for the Central Powers. This proved
to be the definitive and most effective “sanction”
for Germany’s violation of the international laws of neutrality.

Nevertheless, the incongruous suppositions
underlying the international laws of neutrality could not withstand
the rigors of twentieth century “total warfare” with
its all-encompassing political, military, economic, and propagandistic
dimensions. The First World War demonstrated the abject failure
of the laws of neutrality to perform their intended purpose of
constricting the radius of the war. This tragic experience led
many American international lawyers, diplomats, and statesmen
to the unavoidable conclusion that in the postwar world the international
community had to abandon neutrality as a viable concept of international
law and politics and instead create a system of international
relations in which some organization would be charged with the
task of enforcing international law against recalcitrant nations.24
Henceforth, the international legal rights of one state must
be treated as rights pertaining to all states. National security
could no longer be a matter of just individual concern, but rather
it must be a collective responsibility shared by the entire international
community organized together. This line of reasoning induced
many powerful American international lawyers both in and out
of government to support the creation of the League to Enforce
Peace and later to champion the foundation of the League of Nations.25

In their opinion, the United States government
must at last definitively repudiate its traditional policies
of isolationism in peace and neutrality in war in order to become
a formal participant in the new European and worldwide balance
of power system. Admittedly, this balance had been wrought by
brute military force. Yet its continued existence could nevertheless
be legitimized, if not sanctified, by the adoption and effective
enforcement of the principles of international law set forth
in the Covenant of the League of Nations. In this manner, America’s
vital national security interests on the one hand, and its professed
philosophical and moral ideals on the other, could most successfully
be reconciled and indeed, would coincide and reinforce each other
by means of U.S. membership in the League.

According to the prevailing viewpoint
at that time, the creation of the League of Nations was supposed
to have sounded the deathknell for the institution of “neutrality”
and thus for the international laws of neutrality. This supposed
watershed in international legal and political relations was
made quite clear by articles 10 and 11(1) of the League Covenant:

ARTICLE 10. The Members of the League
undertake to respect and preserve as against external aggression
the territorial integrity and existing political independence
of all Members of the League. In case of any such aggression
or in case of any threat or danger of such aggression the Council
shall advise upon the means by which this obligation shall be
fulfilled.

ARTICLE 11.–1. Any war or threat of
war, whether immediately affecting any of the Members of the
League or not, is hereby declared a matter of concern to the
whole League, and the League shall take any action that may be
deemed wise and effectual to safeguard the peace of nations.
In case any such emergency should arise, the Secretary-General
shall on the request of any Member of the League forthwith summon
a meeting of the Council.26

Nevertheless, contemporaneous prognostications
concerning the imminent demise of “neutrality” proved
to be quite premature. This was because the United States government
never joined the League of Nations and never became a party to
the Statute of the Permanent Court of International Justice (PCIJ)
due to strident opposition to both international organizations
consistently mounted by isolationist members of the United States
Senate and their supporters. Even the technical separation of
the Court from the League by the device of adopting a Protocol
of Signature for the PCIJ Statute, which permitted non-League
members to ratify the latter without joining the League, was
insufficient to induce the Senate into giving its advice and
consent to the Protocol on terms acceptable to the latter’s contracting
parties. Shorn of United States participation, the League of
Nations arrived into the world stillborn. So it came as no surprise
that in the absence of the United States, the League ultimately
proved to be congenitally incapable of preserving world peace
against the onslaughts of fascist dictatorships.

During the period between the First and
Second World Wars, it was America’s innate isolationist tendencies,
dating all the way back to President George Washington’s Farewell
Address of 1796, that reasserted themselves and triumphed over
America’s relatively more recent internationalist foreign policies
promoting multilateral organizational solutions to the problems
of maintaining international peace and security. U.S. membership
in the World Court and some “league to enforce the peace”
would occur only after and as a direct result of the tragic experience
of World War II. The shocked reaction of the U.S. government
and people to this second worldwide conflagration produced a
profound realization of the extreme dangers of a continued American
foreign policy premised upon the interrelated principles of isolationism
in peace and neutrality in war.

Whether accurate or not, the thesis developed
that if the habitually obstructionist United States Senate had
ratified the Treaty of Versailles, which contained the League
of Nations Covenant, there was a strong possibility that the
Second World War might never have occurred. Hence, in order to
avoid a suicidal Third World War, the United States must not
repeat the same near fatal mistake it had made after the termination
of the First World War by retreating into “isolationism
in peace and neutrality in war.” These perceptions convinced
the U.S. government of the compelling need for it to sponsor
and join the United Nations Organization in 1945.

Thus under the regime of the United Nations
Charter, neither the Organization itself nor any of its members
were supposed to remain “neutral” in the face of an
unjustified threat or use of force (article 2(4)), nor when confronted
by the existence of a threat to the peace, breach of the peace
or act of aggression (article 39), nor in the event of an actual
armed attack or armed aggression by one state against another
state (article 51). According to article 2(5), all U.N. members
were to give the Organization every assistance in any action
it took in accordance with the Charter, and they must refrain
from giving any assistance to any state against which the Organization
took preventive or enforcement action. Article 2(6) even empowered
the Organization to act against non-members “so far as may
be necessary for the maintenance of international peace and security.”

Article 24 determined that the Security
Council shall have “primary responsibility” for the
maintenance of international peace and security, and article
25 required all members of the U.N. “to accept and carry
out” the decisions of the Security Council. This injunction
included their mandatory adoption of Security Council “enforcement
measures” under articles 41, 42, and 43, though the special
agreements needed to bring this last article into effect were
never concluded. Finally, Charter article 51 also permitted,
but did not obligate, U.N. members to come to the assistance
of any state that was the victim of an armed attack or armed
aggression by another state pursuant to what was therein denominated
the international legal right of “collective self-defense.”

Clearly, the continued existence of the
institution and laws of “neutrality” did not fall within
the contemplation of the drafters of the United Nations Charter.
Nevertheless, once again, reports of the death of the international
laws of neutrality proved to be greatly overexaggerated. At the
time of the founding of the United Nations Organization, the
most that could have been reasonably expected was that the Security
Council would somehow preserve and extend the uneasy wartime
alliance among the five great powers into the postwar world upon
the basis of its fundamental underlying condition — unanimity.
To the degree that the five permanent members of the Security
Council (viz., the U.S., U.K., <U.S.S.R>., France, and
China) could maintain, or at least selectively reinstitute, their
World War II coalition in order to handle postwar international
crises, the U.N. Security Council would provide a mechanism to
enforce the peace of the world in a manner basically accepted
as legitimate by the remainder of the international community.

The atomic bombings of Hiroshima and
Nagasaki, however, occurred shortly after the U.N. Charter had
been signed in San Francisco on June 26, 1945 and even before
the Organization itself came into existence on October 24, 1945.
The ensuing “Cold War” between the United States and
the Soviet Union, each supported by its respective allies, led
to a breakdown of their World War II coalition and thus to a
stalemate at the U.N. Security Council because of the veto power
over substantive matters accorded to its five permanent members
by Charter article 27(3). Hence, if the Security Council should
fail to act in the event of a threat to the peace, breach of
the peace or act of aggression, and the state members of the
United Nations choose not to exercise their right of collective
self-defense to come to the assistance of the victim of an armed
attack or armed aggression as permitted by article 51, presumably
the customary international laws of neutrality would come into
effect to govern the relations between the neutral states on
the one hand, and each set of belligerents on the other. Thus,
even under the reign of the intrinsically non-neutral United
Nations Charter, in default of the Security Council taking measures
“necessary to maintain international peace and security,”
the customary international laws of neutrality still have an
important role to play in the preservation of international peace
and security by constricting the radius and intensity of an ongoing
war.

U.S. “Neutrality” Toward the
Iraq-Iran War

In the modern world of international
relations, the only legitimate justifications and procedures
for the perpetration of violence and coercion by one state against
another are those set forth in the United Nations Charter. The
Charter alone contains those rules which have been consented
to by the virtual unanimity of the international community that
has voluntarily joined the United Nations Organization. These
include and are limited to the right of individual and collective
self-defense in the event of an “armed attack” as defined
by article 51, chapter 7 “enforcement action” by the
U.N. Security Council, chapter 8 “enforcement action”
by the appropriate regional organizations acting with the authorization
of the Security Council as required by article 53, and the so-called
“peacekeeping operations” organized under the jurisdiction
of the Security Council pursuant to chapter 6 or under the auspices
of the U.N. General Assembly in accordance with the Uniting for
Peace Resolution27 or by the relevant regional organizations
acting in conformity with their proper constitutional procedures
and subject to the overall supervision of the U.N. Security Council
as specified in chapter 8 and articles 24 and 25. All other threats
or uses of force are deemed to be presumptively illegal and are
supposed to be opposed in one fashion or another by the members
of the Organization acting individually or collectively or both.

In light of the aforementioned historical
background, it will now be possible to critically analyze and
evaluate the U.S. policy of so-called “neutrality”
toward the Iraq-Iran War from an international law perspective.
There were several indications from the public record that the
Carter Administration tacitly condoned, if not actively encouraged,
the Iraqi invasion of Iran in September of l980 because of its
shortsighted belief that the pressures of belligerency might
expedite release of the U.S. diplomatic hostages held by Teheran
since November of 1979.28 Presumably the Iraqi army could render
Iranian oil fields inoperable and, unlike American marines, do
so without provoking the Soviet Union to exercise its alleged
right of counter-intervention under articles 5 and 6 of the l92l
Russo-Persian Treaty of Friendship.29 These articles were unilaterally
abrogated by Iran on November 5, l979,30 the day after the American
diplomats were seized in Teheran.

The report by columnist Jack Anderson
that the Carter Administration was seriously considering an invasion
of Iran to seize its oil fields in the Fall of l980 as a last
minute fillip to bolster his prospects for reelection was credible.31
It coincided with a substantial increase of U.S. military forces
stationed in the Indian Ocean and Arabian Gulf. In the aftermath
of the Anderson expose, the Soviet government raised the specter
of their counter-intervention in order to ward off any contemplated
American invasion of Iran.

In any event, American efforts to punish,
isolate, and weaken the Khomeini regime because of the hostages
crisis simply prepared the way for Iraq to invade Iran in September,
l980.32 The American policy of “neutrality” toward
the Iraq-Iran war, first adopted by the Carter Administration
and supposedly continued by its successor, misrepresented fact
if not the law. A substantial body of diplomatic opinion believes
that the American government has consistently “tilted”
in favor of Iraq throughout the war despite its public proclamation
of “neutrality.”33

For example, from the very outset of
the conflict, U.S. Airborne Warning and Control Aircraft (AWACS)
that had been stationed in Saudi Arabia for the alleged purpose
of legitimate self-defense of that country proceeded to supply
Iraq with intelligence information they had collected on Iranian
military movements.34 Clearly, this activity constituted a non-neutral,
hostile act directed against Iran which, under <pre-U.N>.
Charter international law, would have been tantamount to an “act
of war” in accordance with the traditional and formal definition
of that term. Under the regime of the United Nations Charter,
such provision of outright military assistance by the U.S. government
to Iraq against Iran rendered America an accomplice to the former’s
egregiously lawless aggression upon the latter.

This illegal U.S. policy toward Iran
progressively worsened after the simultaneous termination of
the hostages crisis and the installation of the Reagan Administration
in January of 1981. At the outset of the Reagan Administration,
Secretary of State Alexander Haig and his mentor, Henry Kissinger,
devoted a good deal of time to publicly lamenting the dire need
for a “geopolitical” approach to American foreign policy
decision-making, one premised on a “grand theory” or
“strategic design” of international relations. Their
conceptual framework toward international relations consisted
essentially of nothing more sophisticated than a somewhat refined
and superficially rationalized theory of Machiavellian power
politics. Consequently, Haig quite myopically viewed the myriad
of problems in the Persian Gulf, Middle East, and Southwest Asia
primarily within the context of a supposed struggle for control
over the entire world between the United States and the Soviet
Union. Haig erroneously concluded that this global confrontation
required the United States to forge a “strategic consensus”
with Israel, Egypt, Jordan, Saudi Arabia, the Gulf Sheikhdoms
and Pakistan in order to resist anticipated Soviet aggression
in the region.

Haig’s vision of founding a U.S. centered
“strategic consensus” in Southwest Asia was simply
a reincarnated version of Kissinger’s “Nixon Doctrine”
whereby regional surrogates were intended to assist the United
States in its efforts to “police” its spheres of influence
throughout the world by virtue of massive American military assistance.
According to the Reagan Administration’s scenario, Israel would
become America’s new “policeman” for stability in the
Middle East, filling the position recently vacated by the deposed
Shah of Iran whom the Nixon/Kissinger Administration had unsuccessfully
deputized to serve as America’s “policeman” for the
region. Hence, according to Haig’s “strategic consensus”
rationale, the United States had to more fully support the Israeli
government of former Prime Minister Menachem Begin, even during
the pursuit of its blatantly illegal policies in Lebanon and
in the territories occupied as a result of the 1967 and 1973
wars, primarily because of Israel’s overwhelming military superiority
(courtesy of the United States) over any Arab state or combination
thereof except Egypt, which had been effectively neutralized
by its 1979 peace treaty with Israel.

Whereas the Shah fell over internal domestic
conditions that were only exacerbated by the large-scale U.S.
military presence in Iran, Haig’s scheme was tragically flawed
from the very moment of its conception. Haig totally disregarded
the fundamental realities of Middle Eastern international politics
where traditionally all regional actors have been far more exclusively
concerned about relationships with their surrounding neighbors
than about some evanescent threat of Soviet aggression. The more
immediate danger to stability in the Middle East and Persian
Gulf is not the distant prospect of Soviet intervention but rather
a continuation of the ongoing Iraq-Iran War and the interminable
Arab-Israeli dispute. Nevertheless, the Begin government shrewdly
manipulated Haig’s Machiavellian delusions in order to generate
American support for Israel’s plan to invade Lebanon in the summer
of 1982 for the express purpose of destroying the PLO and, as
a result of the process, further consolidating its military occupation
of the West Bank. The Israeli invasion of Lebanon was intended
to serve as a prelude to the gradual de facto annexation of the
West Bank in explicit violation of the most basic principles
of international law.

With particular respect to the Persian
Gulf, the Reagan Administration’s persistent characterization
of the Iranian hostage-taking as an act of “international
terrorism” impeded the formulation of a rational U.S. foreign
policy toward Iran that could protect America’s legitimate national
security interests in a manner fully consistent with the requirements
of international law. The Reagan Administration readily succumbed
to the seductive temptation of exploiting the American public’s
paranoid fear over the “spread of Islamic fundamentalism”
from Khomeini’s Iran throughout the Persian Gulf oil fields in
order to justify covert assistance and overt alignment by the
United States and its European allies and Middle Eastern friends
with the Iraqi aggressor. Apparently, this perception blindly
led the Reagan Administration to foment a comprehensive campaign
to destabilize the Khomeini government by means of <C.I.A>.
sponsorship for paramilitary raids launched from Egypt, Turkey
and Iraq into Iran by various Iranian opposition groups and for
an internal military countercoup, among other nefarious projects.35

These developments represented a serious
retrograde step for both American national security interests
in the Persian Gulf and the overall integrity of the international
legal order. Undaunted, the Reagan Administration could not content
itself with the mere sponsorship of such covert measures that
were specifically designed to topple the Islamic regime in Teheran.
More ominously, it proceeded to forge an overt diplomatic and
military alignment with Iraq against Iran throughout the subsequent
course of the Gulf war. Presumably, this was because the Reagan
Administration intended Iraq to play a key role in the implementation
of its “strategic consensus” approach toward the region
by preventing revolutionary Iran from “subverting”
its conservative, wealthy, pro-Western and strategically important
neighbors. Hence the Reagan Administration accelerated the policy
of its predecessor to encourage the reestablishment of normal
diplomatic relations between the United States and Iraq, which
had been severed by the latter in reaction to the 1967 Arab-Israel
war. Somewhat paradoxically, seventeen years later the pressures
of another Middle Eastern war would propel Iraq into re-instituting
normal diplomatic relations with the United States in November
of 1984.36

As part of this progressive development
in their anti-Iranian rapprochement, in March of 1982 the Reagan
Administration removed Iraq from the official list of states
that allegedly provided support to so-called acts of international
terrorism despite the fact that there was little evidence that
Iraq had fundamentally altered whatever its policies were in
this regard.37 Such de-listing rendered Iraq eligible to purchase
“dual-use” equipment and technology in the United States
that could readily be employed for either civilian or military
purposes and would most probably be used in the latter manner.38
This administrative act prepared the way for the Reagan Administration
to issue a license permitting the export of six Lockheed L-100
civilian transport aircraft to Iraq.39 Although the sale of the
aircraft was licensed to Iraqi Airways, the L-100 is the civilian
version of the Lockheed C-130 Hercules military transport and
troop carrier.40 In a similar vein, four months later the Commerce
Department licensed the sale of six small jets to Iraq, four
of which admittedly possessed military applications.41

Nevertheless, despite the Reagan Administration’s
best efforts, the provision of political, military and economic
assistance by the United States, its NATO allies and Middle Eastern
friends to Iraq proved insufficient to stem the tide of Iranian
military advances. Hence, near the start of 1984, it was publicly
announced that the United States government had informed various
“friendly” nations in the Persian Gulf that Iran’s
defeat of Iraq would be “contrary to U.S. interests”
and that steps would be taken to prevent this result.42 Accordingly,
in April of 1984 it was revealed that President Reagan had signed
two National Security Decision Directives to set the stage for
the United States government to take a more confrontational stance
against Iran.43 One of the options under consideration was the
further U.S. provision of so-called dual-use equipment such as
helicopters to Iraq.44 In addition, the Reagan Administration
let it be known that it would look “more favorably”
upon the sale of weapons to Iraq by friends and allies of the
United States government.45 The very next month, it was publicly
revealed that the Reagan Administration was prepared to intervene
militarily in the Iraq-Iran war in order to prevent an Iranian
victory that would install a so-called “radical” Shi’ite
government in Baghdad.46

Pursuant to this set of decisions, in
February of 1985, Textron’s Bell helicopter division agreed to
sell 45 large helicopters to Iraq, and Iraqi defense officials
were involved in negotiating this transaction.47 Six months later
it was reported that these 45 American-made helicopters being
sold to Iraq were initially developed as Iranian troop carriers.
One official of the United States government monitoring the transaction
said the helicopter model involved was “clearly a dual-use
item” with “a potential for military use.”48

From all of the above facts that have
so far surfaced into the public domain, it can quite fairly be
concluded that since its ascent to power in 1981, the Reagan
Administration has abandoned all pretense of alleged American
“neutrality” toward the Gulf war in order to come down
decisively on the side of Iraqi aggression against Iran. Under
the traditional customary international laws of neutrality, such
activities clearly constituted hostile acts that Iran would have
been entitled to oppose with a formal declaration of war against
the United States. Of course prudence has so far dictated that
Iran avoid being provoked by the United States and Iraq into
making a formal declaration of war against the United States.

Acute danger arises from Iraq’s calculated
policy of escalating the severity of its attacks against Iranian
oil installations and supplies for the express purpose of precipitating
direct U.S. military intervention to keep the Straits of Hormuz
open from retaliatory interference by Iran. Baghdad’s hope is
that such outright U.S. military involvement in the Gulf war
would ultimately rescue Iraq from capitulation or defeat at the
hands of Iran. As the recent boarding of a U.S. merchant ship
by Iranian sailors near the Straits of Hormuz indicates,49 unless
the Reagan Administration reverses its current policy of alleged
“neutrality” toward the Gulf war, it will prove to
be increasingly difficult for Iran and the United States to avoid
some form of outright military conflict in the region.

Restoring International Peace and Security
to the Persian Gulf

Even if the United States had been factually
as well as legally “neutral” in the Iraq-Iran war,
that position would itself be shocking and indefensible under
the most rudimentary principles of international law. When in
the <post-U.N>. Charter world has the United States been
“neutral” in the face of outright aggression? As the
United States government should have learned from the tragic
history of American “neutrality” toward widespread
acts of aggression committed by fascist dictatorships during
the l930s, peace is indeed indivisible. In a thermonuclear age,
aggression per se is the most dangerous threat to world peace.
The United States can not possibly be consistent, believable,
or effective in condemning the Soviet invasion of Afghanistan
without likewise condemning the Iraqi invasion of Iran. America’s
rank hypocrisy in this matter fools no one but itself.

The United States, its NATO allies, and
Japan possess vital national security interests in preventing
the disintegration of Iran due to factional strife, regionally
based autonomous breakaway movements, or external aggression
or subversion originating from Iraq or the Soviet Union. Continued
destabilization of Iran only generates further opportunities
for Soviet penetration and exploitation. The United States must
not permit the development of a permanent threat to Saudi Arabia
and to the free flow of Gulf oil through the Straits of Hormuz
by encouraging conditions that might lead to the installation
of an Iranian regime acting at the behest of the Soviet Union.
Nevertheless, it is crucial to reiterate that the Iranian people
possess the exclusive right to determine their own form of government
without overt or covert U.S. intervention, even if this means
the continuation of an Islamic fundamentalist regime in Teheran.

In order to forestall any potential for
a Soviet invasion of Iran under the pretext of the 1921 Russo-Persian
Treaty, the most prudent course for the Reagan Administration
would be to work toward the establishment of a strong, stable,
and secure government in Teheran that is able to undertake the
military measures necessary to offset Russian divisions massed
on Iran’s borders with the Soviet Union and Afghanistan. With
the hostages crisis far behind it, the Reagan Administration
should move to restore normal diplomatic relations with Iran
as soon as possible and without any prior conditions. Most importantly,
the Reagan Administration must completely reverse and publicly
repudiate the Carter Administration’s policy of alleged “neutrality”
toward the Iraq-Iran War.

The American government must officially
label Iraq as the aggressor in the Gulf war and publicly call
for an immediate ceasefire. The Reagan Administration must attempt
to convince its NATO allies, Egypt, Jordan and the Sudan, to
terminate their provision of military weapons, equipment, supplies
and soldiers to Iraq. Operating in conjunction with its allies
and Iran, the United States should work at the United Nations
Security Council for the formal adoption of this program and
its implementation by the deployment of a U.N. peacekeeping force
along the Iraq-Iran border designated to replace withdrawing
Iraqi and Iranian troops on a transitional basis.

The dispute between Iraq and Iran over
the Shatt al-Arab estuary should be submitted to the procedures
for compulsory arbitration set forth in article 6 of the 1975
Iran-Iraq Treaty on International Borders and Good Neighborly
Relations.50 Although insufficient to justify a counter-invasion
of Iraq, Iranian demands for the payment of reparations and for
the deposition of President Saddam Hussein because of Iraq’s
war of aggression are quite reasonable and fully supportable
under fundamental principles of international law. These Iranian
concerns should be recognized as valid by the United States government
and should be accommodated to some extent within whatever framework
is ultimately adopted for the peaceful settlement of this dispute
by the U.N. Security Council.

Of course the improvement and normalization
of American diplomatic relations with Iraq was a desirable objective
as well. But it should not have been purchased by derogation
from the fundamental principle of international law requiring
the condemnation of aggression and by writing off Iran to its
own fate or to the account of the Soviet Union. Indeed, if the
Reagan Administration truly believes that the major U.S. strategic
objective in the Persian Gulf is to counteract a threatened Soviet
thrust through Iran toward Saudi Arabia, the best American defense
can be mounted, not from the borders of Iraq, but from the eastern
and northern frontiers of Iran, at the request of the Iranian
government and with the assistance of the Iranian army. Within
this context a creditable American Rapid Deployment Force (RDF)
could play an effective role consistently with the requirements
of international law. Such action would be in furtherance of
the right of collective self-defense recognized by article 51
of the U.N. Charter.

As for the Iranian threat to close the
Straits of Hormuz in the event Iraq escalates its attacks against
Iranian oil installations, world public opinion should hold the
U.S. government’s illegal pro-Iraqi policies fully accountable
for whatever political, military and economic catastrophes might
result therefrom. So as long as the conflict continues, the Iranian
government has the perfect right under international law to board
and search merchant ships transiting the Straits of Hormuz for
the purpose of confiscating any contraband of war en route to
Iraq. In the meantime, to the extent Persian Gulf oil can be
transported via pipelines terminating on the Red Sea, the strategic
importance of controlling the Straits of Hormuz will diminish.

The criticism that such a dramatic reversal
of American policy in the Gulf would alienate friendly regimes
in Egypt, Saudi Arabia, Kuwait and Jordan, inter alia, overlooks
the fact that American “neutrality” in this war has
simply encouraged these Arab countries temporarily to put aside
their deep-seated animosities for the purpose of aligning themselves
with an aggressive Iraq against non-Arab Iran. Furthermore, the
direct contribution of massive war loans to Iraq by Saudi Arabia,
Kuwait and the Gulf Sheikhdoms has fatally compromised their
alleged “neutrality” toward the Gulf war as well.51
Under the <pre-U.N>. Charter customary international law
of neutrality, Iran would have been entitled to treat the provision
of such military and economic assistance by these countries to
Iraq as an act of hostility directed against it, thus warranting
a declaration of war. So far, Iran has wisely refrained from
so acting. Nevertheless, the United States government has done
nothing to discourage, and indeed in many instances has encouraged
and assisted, such non-neutral practices by numerous Middle Eastern
countries against Iran. This misguided American policy must be
reversed immediately before it thoroughly and irrevocably destabilizes
international peace and security in the Persian Gulf and Middle
East.

Restoring peace to the Persian Gulf demands
vigorous American leadership acting in strict accordance with
the rules of international law and in full cooperation with the
relevant international institutions. Unfortunately, despite its
continued protestations of “neutrality” toward the
Gulf war, the Reagan Administration still seems to be “tilting”
quite strenuously in favor of Iraq against Iran. Continued and
demonstrable U.S. partiality for Iraq will only prolong this
tragic conflict by discouraging Iran from working with the U.N.
Security Council to end the war precisely because one of the
latter’s permanent and most important members is evisceraly and
implacably prejudiced against it. For this very reason, those
inexcusably few U.N. Security Council resolutions that have so
far been adopted on the Gulf war have all been clearly and admittedly
biased in favor of Iraq.52

From a long-term perspective on Persian
Gulf security, the Reagan Administration should abandon Haig’s
Machiavellian objective of creating a formal anti-Soviet “strategic
consensus” in the region under American leadership and substitute
for it a policy that promotes the foundation of an effective
regional collective self-defense and policing arrangement. Therefore,
the Reagan Administration should encourage the efforts of six
regional states (i.e., Saudi Arabia, Kuwait, Bahrain, United
Arab Emirates, Oman, Qatar) to form a viable Gulf Cooperation
Council. Such an organization could someday metamorphosize into
an effective Gulf Security Organization, affiliated with the
United Nations Organization under chapter 8 of the Charter, and
possess a standing peacekeeping force or the ability to field
one on short notice. Though the Council aims to keep both superpowers
out of the region, a Gulf Security Organization could only advance
the interests of the U.S., its NATO allies, and Japan by the
establishment of some degree of peace, order, and stability in
this volatile area.

Geography gives the Soviet Union advantages
the West cannot match without supporting the creation of such
an effective regional collective self-defense and policing system.
A Gulf Security Organization would be far more successful at
the pacific settlement of local disputes, opposing intra-regional
aggression, and the suppression of externally fomented disturbances
than the American Rapid Deployment Force (now renamed the U.S.
Central Command) ever could.53 The United States must not become
a member of or play any formal role within such a Gulf Security
Organization so as not to undermine the Organization’s claims
to regional legitimacy and to formal non-alignment vis-a-vis
the two superpowers. But America should make clear its intention
to provide military assistance to such an Organization in the
event of an armed attack upon one of its members by an extra-regional
power such as the Soviet Union. Such assistance would be in furtherance
of the right of collective self-defense recognized by article
51 of the United Nations Charter.

In regard to U.S. measures designed to
promote individual self-defense by the states of this region,
the purveyance of sophisticated American weapons systems and
technology to Israel, Saudi Arabia, Jordan, and Pakistan, is
a most disturbing factor. As events in Iran have demonstrated,
arms sales can easily become counterproductive. Any U.S. arms
transfer policy must be required by the legitimate defensive
needs of these countries as defined by international law and
interpreted in good faith by the American government. Unilateral
policy determinations by these foreign governments do not provide
adequate criteria. Thus the Reagan Administration should not
have provided weapons to Saudi Arabia simply to curry favor and
thus secure a stable flow of expensive oil to the West; to China
in the expectation of utilizing that country as a geopolitical
“card” to be played in some Machiavellian balancing
game of power politics with the Soviet Union over Afghanistan,
or; to Jordan for the purpose of creating a surrogate force for
illegal military intervention throughout the Persian Gulf.

Nor must such weapons be given to any
state in this or other regions of the world that manifests a
tendency to employ them in a manner either the U.S. government
or the U.N. Security Council deems violative of international
law. Hence, the Israeli air strikes with American-made planes
against the Iraqi nuclear reactor and the PLO headquarters in
Beirut combined with Israel’s threat to bomb Syrian anti-aircraft
missiles in Lebanon during the summer of 1981, followed by its
patently illegal invasion of that country one year later, should
have been grounds for additional concern and reevaluation by
the Reagan Administration. The same can be said for Pakistan’s
three wars with India and its frantic pursuit of a nuclear weapons
capability.

All of these states bore heavy burdens
of proof in regard to pending American arms transfers that were
not discharged in a manner satisfactory to the requirements of
both international law and U.S. domestic law.54 Unfortunately,
the Reagan Administration apparently chose to rely upon the wholesale
provision of American military equipment to various governments
in this region and around the globe as an ineffectual and ultimately
self-defeating substitute for the hard task of formulating a
set of coherent principles for the conduct of American foreign
policy on some basis other than Haig’s Machiavellian predilections.
Most regretfully, his successor, George Shultz, proceeded to
heedlessly and quite enthusiastically embrace Haig’s “strategic
consensus” approach to this region of the world.

Finally, as current events in the Middle
East demonstrate, the success of any American foreign policy
in the Persian Gulf cannot be divorced from the compelling need
to achieve an overall peace settlement between Israel and its
Arab neighbors. An absolute precondition to the security of the
Persian Gulf oil lifeline to Europe and Japan becomes active
American support for progress toward implementing the international
legal right of the Palestinian people to self-determination in
accordance with the rules of international law and in full cooperation
with the relevant international institutions. Otherwise the primary
political objective of Gulf states will continue to be to organize
their efforts and substantial resources in opposition to both
Israel and the United States. In the meantime, the Reagan Administration’s
decision to assign troops from the 82nd and 101st Airborne Divisions,
already designated as parts of the Rapid Deployment Force, to
serve as component units within the multinational peacekeeping
force that is policing the easternmost section of the Sinai desert
in the aftermath of Israel’s withdrawal on April 25, l982, was
egregiously shortsighted. The monumental peace between Egypt
and Israel should not have been linked in any way to the prospect
of illegal American military intervention in the Persian Gulf.

Conclusion

If a Third World War should occur, it
will probably result from a direct confrontation between the
United States and the Soviet Union over the Middle East/Persian
Gulf region. Southwest Asia could readily become the Balkans
of the 1980s. For example, the promulgation of the so-called
Carter Doctrine–in which this American president committed the
U.S. government to use military force to prevent “any outside
force to gain control of the Persian Gulf region”–constituted
a dangerous bluff whose potential for nuclear confrontation and
escalation was immeasurable. A Pentagon report had already concluded
that even with a creditable Rapid Deployment Force (RDF) the
United States could not by itself successfully defend Iranian
oil fields from a Soviet conventional invasion unless, perhaps,
America resorts to the first-use of tactical nuclear weapons.55
But their deployment in a conventional conflict with the Soviet
Union would probably degenerate into strategic nuclear warfare
between the two superpowers and their allies.

Likewise, as publicly admitted, the RDF
cannot succeed at its two other appointed tasks of seizing and
operating Persian Gulf oil fields against the wishes of the local
governments in the event of another cutoff along the lines of
1973 or of protecting petroleum facilities from destruction by
opposition movements indigenous to the region or by externally
supported saboteurs.56 Such disruptions are beyond the substantial
capacity of the RDF to counteract. Consequently, since the Carter
Doctrine can neither deter a Soviet invasion nor stem the tide
of revolutionary change in the Gulf, the Reagan Administration
should have abandoned it.

Nevertheless, somewhat paradoxically,
the Reagan Administration eagerly embraced this ill-conceived,
rhetorical flourish by a former opponent, hastily uttered during
the heat of an unsuccessful election campaign, as the cornerstone
of its foreign policy toward the Persian Gulf. Worse yet, the
Reagan Corollary improvidently extended the Carter Doctrine to
ordain U.S. opposition to internally-based interference with
the free flow of Saudi Arabian oil. The U.S. government should
not have been tempted to enter into de facto alliances with feudal
or reactionary regimes in order to guarantee their continued
survival against internal adversaries in return for stable supplies
of expensive oil, especially at the calculated risk of precipitating
a theoretically “limited” tactical nuclear war with
the Soviet Union. As demonstrated by the Iranian revolution,
even a perceptibly radical successor regime will recognize the
need to sell oil to Western Europe, Japan, and the United States
for the hard currency necessary to finance imports essential
to fulfilling the basic human needs of its citizenry (e.g., U.S.
food supplies), let alone to pay for an economic development
program.

Because of the Rapid Deployment Force’s
demonstrative susceptibility to abuse and to its impermissible
use under international law, the American Congress should amend
the War Powers Act of 1973 to provide that the President of the
United States cannot order the introduction of RDF troops into
hostilities or into situations where imminent involvement in
hostilities is clearly indicated by the circumstances without
prior authorization by a joint resolution of Congress.57 A narrowly
drawn exception to this amendment could permit the President
to use RDF troops solely for the purpose of rescuing a substantial
number of American citizens from situations where they face imminent
danger of death without the need for prior Congressional authorization,
though subject to the other requirements of the Act. Without
such an amendment, any American President will be constantly
tempted to order the RDF into combat for all sorts of reasons
and under a variety of pretexts simply because a seemingly effective
U.S. interventionary force might be in existence and would be
subject to his unfettered discretion. Otherwise, direct U.S.
military intervention in the Persian Gulf/Middle East could readily
serve as the harbinger for nuclear Armageddon.

************************************************************
******************

Postscript

The research and writing for this paper
were finished as of February 1, 1986, when it was submitted in
advance to the organizers of the University of New Orleans Symposium
on Neutrality for distribution and delivery at the conference
two weeks later. Hence, the paper did not take into account the
numerous facts surrounding the Reagan Administration’s foreign
policy toward the Iraq-Iran War that have emerged into the public
record since the outbreak of the Iran-contra scandal in October
of 1986. This author believes that intellectual honesty requires
him to deal with these matters in a Postscript, rather than by
revising an already delivered and publicly disseminated scholarly
paper in light of subsequently revealed facts. That way, the
readers are free to assess for themselves the merit and integrity
of this author’s analysis as of early 1986.

Therefore, except for minor editorial
corrections, the above section of this chapter contains the exact
text of the paper which the author submitted to and delivered
before the Symposium. Nevertheless, for the sake of completeness,
I would like to offer here a necessarily brief and highly impressionistic
overview of the Reagan Administration’s foreign policy toward
the Iraq-Iran war in light of the Iran-contra expose and subsequent
developments. A more detailed treatment of this subject will
be found in my forthcoming book The Future of International Law
and American Foreign Policy (Transnational Publishers, Inc.:
1989). The following analysis is based upon facts that have emerged
into the public record as of January 20, 1988.

At the 1986 Neutrality Symposium, this
author stated: “As events in Iran have demonstrated, arms
sales can easily become counterproductive. Any U.S. arms transfer
policy must be required by the legitimate defensive needs of
these [Middle Eastern] countries as defined by international
law and interpreted in good faith by the American government.”
These words were not written in reference to or with knowledge
of the Iran-contra scandal, but they nevertheless seem to have
constituted the major lesson to be learned from it. For reasons
better explained in chapter 8 of my World Politics and International
Law (Duke University Press: 1985), this author saw nothing wrong
with the Reagan Administration attempting to negotiate and compromise
for the release of American hostages being held in Lebanon by
an Islamic fundamentalist group acting in sympathy with Iran
over U.S. support for Iraqi aggression throughout the Gulf war.
But arms transfers should not have been the currency employed
by the Reagan Administration to purchase liberty for the hostages.

These hostages were seized by an Islamic
fundamentalist group in order to obtain the release of their
comrades imprisoned in Kuwait–some of whom were and still are
subject to execution–for bombing attacks they had perpetrated
against Kuwaiti, French, and American political targets in that
country out of opposition to the latters’ joint support for Iraq
against Iran. A negotiated exchange of American hostages in Lebanon
for the release of Lebanese prisoners in Kuwait would have been
a proper policy for the Reagan Administration to have pursued
with the Iranian government, inter alia. Indeed, the Reagan Administration
can still implement such a policy today if it genuinely wished
to obtain the release of American citizens currently held hostage
in Lebanon.

The Reagan Administration’s provision
of sophisticated weapons to some of the most radical elements
in Iran was never part of a self-styled “strategic opening”
to that country, but simply constituted a straight out arms-for-hostages
swap that could not be justified under basic norms of international
law and U.S. domestic law. These weapons were not required by
Iran for the legitimate defense of that country, which was then
no longer in jeopardy. Rather, Iran used the arms to continue
the prosecution of its war against Iraq deep into the territory
of that country despite repeated calls by the international community
for a peaceful settlement. According to articles 2(3) and 33
of the United Nations Charter, Iran was under an obligation to
pursue a peaceful termination of its war with Iraq despite the
undeniable fact that Iran was the original victim of Iraqi aggression.
The sale of sophisticated weapons by the United States government
to Iran at this penultimate stage in the Iraq-Iran war only exacerbated
and compounded the already daunting political complexities of
the situation.

In any event, the expose of the U.S.
arms transfers to Iran revealed to the entire international community
that the basis of the Reagan Administration’s alleged “neutrality”
policy toward the Iraq-Iran war had been thoroughly unprincipled,
duplicitous and hypocritical from the outset. The same can be
said for the Reagan Administration’s congenitally defective “war
against international terrorism” that had been intended
to be the keystone of its bankrupt foreign policy toward the
Middle East since 1981. Such unscrupulous policies violated the
basic principles of international law set forth in my 1986 paper,
as well as several well-established prohibitions of United States
constitutional, civil and criminal law that would be too numerous
to list here but will undoubtedly be invoked by the Independent
Counsel/Special Prosecutor Lawrence Walsh when he indicts the
principals in the Iran-contra scandal. As argued in the last
chapter of World Politics and International Law, the U.S. government’s
practice of Machiavellianism abroad will ineluctably subvert,
if not destroy, constitutionalism and the rule of law at home.

In the aftermath of the Iran-contra revelations
starting in October of 1986, the Reagan Administration sought
to undo this self-inflicted damage to its credibility with the
American people and with Arab states in the Middle East by adopting
an even more intransigent and overtly hostile stance against
Iran. The Reagan Administration abandoned even the pretense of
feigned neutrality toward the war and actively and directly intervened
on the side of Iraq against Iran by means of U.S. military forces.
This decision produced the so-called “reflagging” of
Kuwaiti oil tankers under the American flag in order to provide
a thin veneer of legal respectability to purportedly justify
to the American people and Congress the introduction of U.S.
military forces directly into the war in overall support of Iraq’s
strategic objectives.

But after the destruction of the Stark
by an Iraqi (not Iranian) jet fighter, both the American people
and Congress should have made it quite clear to the Reagan Administration
that they would not tolerate U.S. sailors and airmen being put
“in-harm’s-way” to support the bloodthirsty dictatorship
of Saddam Hussein for any reason. Nevertheless, after expressing
some lukewarm reservations, Congress caved in by refusing to
insist that the Reagan Administration obey the terms of the War
Powers Act when introducing U.S. naval and air forces to escort
the “reflagged” Kuwaiti tankers in the Persian Gulf
war. How many more U.S. servicemen will die in the Gulf war?
How likely is it that the U.S. government will refrain from further
escalating its direct involvement into the war in the event of
more American casualties or Iranian victories (e.g., at Basra)?
This was precisely the type of outcome the War Powers Act was
designed to prevent–at least without formal Congressional authorization
for direct U.S. military intervention into a situation of armed
combat.

Yet today, there are several otherwise
sensible political leaders and public pundits who have disingenuously
argued that since the Reagan Administration has apparently successfully
gotten away with refusing to obey the War Powers Act in the Persian
Gulf, the Act itself has demonstrated its impracticability and
therefore should either be repealed or eviscerated. To the contrary,
the Reagan Administration’s creeping military intervention into
the Persian Gulf war on the side of Iraq during the past seven
years demonstrates precisely the need for the more (not less)
restrictive amendment to the Act that this author called for
in 1986: “Because of the Rapid Deployment Force’s demonstrative
susceptibility to abuse and to its impermissible use under international
law, the American Congress should amend the War Powers Act of
1973 to provide that the President of the United States cannot
order the introduction of RDF troops into hostilities or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances without prior authorization by
a joint resolution of Congress.” The Rapid Deployment Force
was renamed the U.S. Central Command, and it is under this rubric
that the current round of direct U.S. military intervention in
the Gulf war is taking place.

The Reagan Administration’s so-called
reflagging of Kuwaiti oil tankers was entitled to no international
legal significance whatsoever. First, the reflagged Kuwaiti oil
tankers lacked the “genuine link” between the United
States and the tankers that is required by article 5 of the 1958
Geneva Convention on the High Seas in order to establish U.S.
nationality for the tankers. Furthermore, pursuant to the ruling
of the International Court of Justice in the Nottebohm Case (Liechtenstein
v. Guatemala), [1955] <I.C.J>. Rep. 4, concerning the meaning
of a “genuine link” involving the contrived alteration
of nationality by a person in contemplation of war, Iran would
have the perfect right to disregard this obviously sham transaction
and continue to treat the tankers as possessing Kuwaiti nationality.
Moreover, even if the change of nationality for the tankers were
considered to be effective under international law and “opposable”
by the United States against Iran, for the Reagan Administration
to have undertaken this admittedly partial type of activity in
favor of one belligerent during the course of an ongoing war
fatally compromised its alleged neutrality and constituted a
hostile act directed against Iran.

Finally, as discussed in my 1986 paper,
Iran had a perfect right under international law to exercise
its belligerent rights by stopping, searching for contraband,
and if necessary confiscating or, in certain circumstances, destroying
merchant ships that proceeded through the Straits of Hormuz into
and out of the Persian Gulf on their way to and from Kuwait and
the other Gulf states that were acting as de facto allies of
Iraq throughout the war. Despite the Reagan Administration’s
disingenuous protestations to the contrary, Kuwait, inter alia,
has never been a “neutral” in the war against Iran.
Rather, Kuwait has consistently sided with Iraq throughout the
course of the war, though to be sure perhaps against its better
judgment. Nevertheless, Kuwait’s acts of co-belligerence have
included the provision of billions of dollars of loans to Iraq;
the trans-shipment of munitions, equipment and supplies through
Kuwait to and from Iraq; the allocation of a fixed percentage
of Kuwaiti oil exports to the account of Iraq in order to finance
the war; the provision of reconnaissance information and intelligence
to Iraq; some degree of military cooperation with and logistical
support for Iraq, etc.

Recall that it was Kuwait–Iraq’s de
facto ally–that had originally requested Soviet and American
“protection” for its non-neutral merchant shipping.
Perhaps somewhat foolishly, the Reagan Administration readily
acquiesced to an Iraqi-Kuwaiti plan specifically designed to
elicit direct U.S. military intervention on the side of Iraq
against Iran under the flimsy pretext of “protecting”
the passage of allegedly “neutral” ships through international
straits and on the high seas. On the other hand, this author
is of the personal opinion that the Reagan Administration most
probably orchestrated the Kuwaiti/Iraqi request to both superpowers
in the full knowledge and expectation that the White House could
then successfully manipulate the evanescent threat of a picayune
Soviet naval presence in the Gulf for the purpose of convincing
a reluctant American people and Congress to acquiesce in an already
planned direct intervention by U.S. military forces into the
war in order to prevent a feared Iraqi defeat upon Iran’s otherwise
anticipated renewal of its annual offensive near Basra in the
winter of 1988.

In any event, it was completely and purposefully
misleading for the Reagan Administration to have publicly characterized
Kuwait as a “neutral” in this war. For all of the above
reasons, therefore, the Kuwaiti tankers have never been “neutral
shipping” that would be entitled to the benefits of such
a designation under the international laws of neutrality. And
this holds true irrespective of their so-called reflagging by
the United States government. So today, the United States Navy
is escorting non-neutral shipping in violation of U.S. obligations
as a neutral under international law, in direct contradiction
to Iran’s belligerent rights under the laws of war, and at the
risk of precipitating an Iranian declaration of war or at least
acts of hostility directed against the United States in the Gulf
or elsewhere for such belligerent behavior.

In other words, the Reagan Administration
proceeded to provide military assistance to Kuwait which is an
ally of Iraq against Iran, and has thus rendered the United States
a de facto ally of Iraq against Iran in the Gulf war. In no sense
of the traditional meaning of that term, therefore, can it even
be arguably said that the United States government is any longer
“neutral” in the Iraq-Iran war. Hence, the claim by
the Reagan Administration that U.S. naval forces were directly
introduced into the Persian Gulf war for the twin purposes of
(1) permitting “neutral” shipping to transit the Straits
of Hormuz and the Persian Gulf and (2) ensuring the free flow
of Gulf oil through the Straits becomes legal, factual, and political,
nonsense.

For example, the State Department has
publicly admitted that it was Iraq which started the so-called
tanker war in 1984. It has also been generally agreed that the
vast majority of destruction that has been inflicted against
any type of shipping in the Gulf has been perpetrated by Iraq,
not by Iran. According to the supposed logic of the Reagan Administration’s
legal rationale (whose very premises this author completely rejects),
if the purpose of direct U.S. military intervention was either
in fact or in law designed to prevent the destruction of genuinely
neutral shipping in the Gulf, then protective U.S. military activities
should have been directed primarily against Iraq, not Iran. To
be sure, for reasons that will become clear below, this author
does not advocate that course of conduct either.

Well before direct U.S. military intervention
into the Persian Gulf war, the Pentagon had publicly stated that
Iran was essentially respecting the international laws relating
to the exercise of its belligerent rights when it came to the
search and seizure of merchant ships and contraband in the Persian
Gulf and Straits of Hormuz. With respect to the Iranian destruction
of merchant tankers destined to or from Iraq/Kuwait, Iran has
engaged in this activity primarily in reprisal for Iraqi attacks
against merchant shipping destined to and from Iran. Under the
customary international law doctrine known as reprisal, in time
of war what otherwise would be a violation of international law
can nevertheless be excused if it is undertaken for the express
purpose of bringing an original violator of the laws of war (i.e.,
Iraq) into compliance therewith; provided that the reprisal is
essentially proportionate to the original violation and that
people and property who are afforded special protections by international
law are respected. Under the current circumstances of the Gulf
war, that latter restriction would not apply to protect such
non-neutral merchant ships in the Gulf, especially when they
have voluntarily decided to enter proclaimed exclusion zones
by either side, oftentimes carry contraband of war anyway, and
are fully aware of the Iranian reprisal policy.

Moreover, Iran has publicly taken the
position that the primary reason it has attacked merchant tankers
destined to or from Iraq/Kuwait is in reaction to and for the
express purpose of discouraging Iraqi attacks on merchant shipping
sailing to or from Iran. It has consistently been in the national
interest of Iran to maintain the free flow of oil through the
Straits of Hormuz in order to continue financing its war effort.
By contrast, with the closure of Iraqi ports on the Shatt al-Arab
estuary and the diversion of its oil exports by pipelines running
through Syria and Turkey to the Mediterranean and through Saudi
Arabia to the Red Sea, it has been in Iraq’s interest to close
the Straits of Hormuz and the Persian Gulf to oil tanker shipping
destined from Iran.

So between the two countries it has been
Iraq that has done far more damage to the free flow of oil from
the Gulf. Once again, if the Reagan Administration really intended
to intervene in order to maintain the flow of oil from the Gulf
through the Straits, it should have intervened against Iraq,
not Iran. Just like the “neutrality” argument, therefore,
this “oil” rationale was totally spurious to begin
with and quite cynically manipulated by the Reagan Administration
as another pretext in order to justify to the American people
and Congress overt and direct U.S. military intervention in favor
of Iraq against Iran. As a direct result of the Iraqi attack
upon Iran in 1980 as well as the institution of the tanker war
by Iraq in 1984, only a miniscule percentage of annual world
oil supplies actually transit the Straits of Hormuz by tanker,
and a good deal of that is Iranian oil anyway.

Ironically, but not surprisingly, it
is Iran, not Iraq, that has demonstrated the greater degree of
respect for the rules of international law concerning neutrality
and belligerency in the Gulf and the Straits. Furthermore, it
is the United States that is engaging in hostile and provocative
military maneuvers and actions against Iran–not vice versa–and
is illegally preventing Iran from exercising its belligerent
rights under well-recognized principles of international law.
Thus, when United States naval forces attacked Iranian ships
and Iranian oil drilling platforms in the Gulf, this was not
a legitimate act of self-defense as recognized by article 51
of the United Nations Charter.

Indeed, these actions were specifically
designated to be measures of “retaliation” by President
Reagan. Yet until the advent of the Reagan Administration, it
had never been the case that the United States government took
the position that retaliation is a legitimate act of self-defense
under article 51 of the United Nations Charter. To the contrary,
even during the darkest days of the Vietnam War, the United States
government had always argued that retaliation was not self-defense
and therefore was prohibited by the terms of article 51.

The Reagan Administration’s interpretation
of the right of self-defense to include retaliation in the Gulf
(as well as in Lebanon, Libya and its so-called war against international
terrorism) represents a truly perverse innovation in the universally
accepted corpus of both customary and conventional international
law on self-defense going all the way back to the famous 1837
case of the good ship Caroline. There U.S. Secretary of State
Daniel Webster took the official position on behalf of the United
States government that alleged measures of self-defense can only
be justified when the “necessity of that self-defence is
instant, overwhelming, and leaving no choice of means, and no
moment for deliberation.” The Caroline test for the validity
of any act of alleged self-defense was later adopted and approved
by the International Military Tribunal convened at Nuremberg
in 1945 for the purpose of trying the major Nazi war criminals.

More recently came the World Court’s
seminal Corfu Channel Case (United Kingdom v. Albania), [1949]
<I.C.J>. Rep. 4 that, interestingly enough, involved a
state’s use of force to remove mines from an international strait
by entering another state’s territorial waters. In that case
a squadron of British warships traversing the North Corfu Strait
struck some mines with the loss of lives and ships. Three weeks
later, British minesweepers swept the North Corfu Channel under
the protection of a British armada and entered Albanian territorial
waters for the purpose of removing and later examining moored
mines. All fifteen members of the International Court of Justice,
together with a judge ad hoc appointed by Albania, were unanimous
in holding, 16 to 0, that by reason of the acts of the British
Navy in Albanian territorial waters in the course of the minesweeping
operation, the United Kingdom had violated the sovereignty of
Albania. In this regard, the World Court emphatically rejected
all grounds of alleged defense under customary international
law that were proffered by the British government:

The Court cannot accept such a line of
defense. The Court can only regard the alleged right of intervention
as the manifestation of a policy of force, such as has, in the
past, given rise to most serious abuses and such as cannot, whatever
be the present defects in international organization, find a
place in international law. Intervention is perhaps still less
admissible in the particular form it would take here; for, from
the nature of things, it would be reserved for the most powerful
States, and might easily lead to perverting the administration
of international justice itself.

…. The United Kingdom Agent, in his
speech in reply, has further classified [the minesweeping operation]
among methods of self-protection or self-help. The Court cannot
accept this defence either. Between independent States, respect
for territorial sovereignty is an essential foundation of international
relations. The Court recognizes that the Albanian Government’s
complete failure to carry out its duties after the explosions,
and the dilatory nature of its diplomatic notes, are extenuating
circumstances for the action of the United Kingdom Government.
But to ensure respect for international law, of which it is the
organ, the Court must declare that the action of the British
Navy constituted a violation of Albanian sovereignty.

Even more significantly, the World Court
repudiated these vagarious doctrines without explicitly relying
upon the U.N. Charter because Albania was not yet a party while
Great Britain was. Hence, the Court’s holding on this point can
be construed to constitute an authoritative declaration of the
requirements of customary international law on the use of force
that is binding upon all members of the international community
irrespective of the Charter. A fortiori, therefore, when both
parties to an international conflict are U.N. members, such as
the United States and Iran, articles 2(3), 2(4), and 33 absolutely
prohibit any threat or use of force that is not specifically
justified by the article 51 right of individual or collective
self-defense. Furthermore, pursuant to article 38(1)(c) of the
Statute of the International Court of Justice, under “the
general principles of law recognized by civilized nations,”
relatiation is not self-defense but murder and aggression.

The Corfu Channel Case invokes the memory
of one of history’s great conflagrations that started as a simple
dispute over the colonial status of Epidamnus between ancient
Corinth and Corcyra, then a city-state on the island of Corfu.
The Reagan Administration’s demented interpretation of self-defense
to include retaliation is a throwback to the Athenian position
taken at the Melian Conference in Book 5 of Thucydides’ The Peloponnesian
War: The strong do what they will, and the weak suffer what they
must! Not coincidentally, the Athenians had rejected a Melian
offer of neutrality in their war against Sparta as incompatible
with their imperial destiny:

Melians.–“So that you would not
consent to our being neutral, friends instead of enemies, but
allies of neither side.”

Athenians.–“No; for your hostility
cannot so much hurt us as your friendship will be an argument
to our subjects of our weakness, and your enmity of our power.”

Melians.–“Is that your subjects’
idea of equity, to put those who have nothing to do with you
in the same category with peoples that are most of them your
own colonists, and some conquered rebels?”

Athenians.–“As far as right goes
they think one has as much of it as the other, and that if any
maintain their independence it is because they are strong, and
that if we do not molest them it is because we are afraid; so
that besides extending our empire we should gain in security
by your subjection; the fact that you are islanders and weaker
than others rendering it all the more important that you should
not succeed in baffling the masters of the sea.”

Twenty-five hundred years later, today’s
“masters of the sea” is another self-styled democracy
with a belligerent populace and truculent leaders who imperiously
threaten to engulf the civilized world in a cataclysm of unpredictable
dimensions if a small power does not capitulate to its diktat.

There is an alternative solution, however,
to the Reagan Administration’s fictitious dilemma of choosing
between either further escalation of direct U.S. military intervention
in support of Iraq, or the installation of a puppet regime in
Baghdad acting at the behest of Iran. As indicated in my 1986
paper, this third option can be constructed on the basis of international
law and organizations if the Reagan Administration or its successor
really desired to do so in good faith. Pursuing this third alternative
would essentially require that the United States government indicate
a willingness to satisfy those reasonable Iranian conditions
for terminating the war that can be fully justified by the principles
of international law.

In my 1986 paper I specified the basic
components of and reasons for a practicable peace plan that merited
support by the United States government and endorsement by the
U.N. Security Council: (1) the condemnation of Iraq as the original
aggressor in the war; (2) the removal of Saddam Hussein from
power; (3) the payment of war reparations to Iran; (4) the interposition
of a U.N. peacekeeping force along the Iraq-Iran border to facilitate
a withdrawal of forces; and (5) the restoration of the 1975 border
between the two countries. Iran has given every indication that
it would be prepared to terminate the Gulf war on essentially
these terms.

Instead of working along these lines,
however, the Reagan Administration sponsored and obtained the
passage of U.N. Security Council Resolution 598 (1987) which
did not meet any of the minimal Iranian demands for the termination
of the war but rather seemed to incorporate the maximalist Iraqi
position. In particular, Resolution 598 required that Iran must
first withdraw from all Iraqi territory before steps are taken
by the Security Council to satisfy any of the legitimate Iranian
conditions under international law. The U.S. government’s stubborn
insistence that the terms of Resolution 598 be implemented in
this precise sequence of events was an obvious non-starter in
the first place and was thus probably designed to produce Iranian
non-compliance precisely in order to serve as a pretext for imposing
U.N. Security Council sanctions against Iran to stave off an
Iraqi defeat.

This author seriously doubts that after
seven years of being on the receiving end of incredible bloodshed
and devastation, Iran will withdraw from Iraq upon the mere promise
by the Security Council that the inequities of the situation
might be redressed somewhat afterwards. Recall that due to the
influence of the U.S. government, the U.N. Security Council has
yet to pass a resolution even condemning Iraq for its initiation
of aggression against Iran in 1980, with all its incalculable
consequences for the Iranian and Iraqi peoples. Under the pernicious
influence of the Reagan Administration, Resolution 598 did not
either. The supposed reason was that the Security Council must
be “balanced” and “even-handed” between both
belligerents when passing resolutions on the Persian Gulf war.
Nothing should be further from the truth.

As explained in my 1986 paper, the Security
Council was never designed to be “neutral” in the face
of outright aggression. If it purports to be so for any reason,
then the Security Council and its membership–especially the
five permanent members possessing the veto power (i.e., U.S.,
U.K., <U.S.S.R>., France, and China)–simply betray their
partiality in favor of an aggressor against its victim and thus
seriously undermine, if not permanently abnegate, their “primary
responsibility for the maintenance of international peace and
security” under U.N. Charter article 24(1). So long as the
Security Council continues to act at the behest of the U.S. government
and Iraq in this matter, it will probably have little positive
effect upon the ultimate outcome of the Iraq-Iran war.

Despite these inherent defects, Iran
nevertheless demonstrated a considerable amount of flexibility
on the terms and the timing for the implementation of Resolution
598. The Iranians indicated that they would be prepared to declare
and observe an informal cease-fire that should be followed by
the establishment of an international commission to examine responsibility
for the outbreak of the war. Once that commission had reported–presumably
determining that Iraq was responsible for committing aggression–and
the logical consequences from that determination were implemented
(i.e., the departure of Saddam Hussein and at least a promise
by Iraq and/or the Gulf states to pay war reparations to Iran),
then Iran indicated that it would be prepared to engage in a
complete withdrawal from Iraqi territory. The United States government
should have taken the Iranians at their word and immediately
proceeded to implement this promising procedure for ending the
war.

Instead, the Reagan Administration continued
to work at the Security Council to obtain the latter’s full support
for the maximalist Iraqi position that Iran must first withdraw
completely from Iraqi territory before meeting any Iranian terms
for ending the war. Later, the Reagan Administration demonstrated
its own gross disrespect for and rank hypocrisy toward Resolution
598 by specifically violating the terms of paragraph 5 thereof
when it decided to use the U.S. Navy to escort the Kuwaiti tankers
and to engage in acts of hostility against Iranian ships and
oil drilling platforms in the Gulf: “The Security Council
…. 5. Calls upon all other States to exercise the utmost restraint
and to refrain from any act which may lead to further escalation
and widening of the conflict, and thus to facilitate the implementation
of the present resolution . . .” Direct U.S. military intervention
in support of the Kuwaiti tankers and retaliatory acts against
Iranian ships and oil drilling platforms did the exact opposite
from what the Security Council had ordered. Then the Reagan Administration
sanctimoniously demanded that the Security Council impose an
arms embargo against Iran because it had failed to comply with
Resolution 598!

Even if the Reagan Administration is
ultimately successful in its quest for Security Council sanctions
against Iran, the latter would probably have a limited impact
upon Iranian calculations because the Security Council has no
credibility in their eyes. Furthermore, any additional forms
of unilateral direct U.S. military intervention into the Persian
Gulf war are probably doomed to failure as well. The same can
be said for the American-orchestrated multilateral naval force
consisting of warships drawn from NATO countries but operating
without any type of imprimatur by the U.N. Security Council in
the Persian Gulf. Their propulsion into the Gulf war simply raised
the specter of the “multilateral force” that the Reagan
Administration had cajoled into Lebanon without U.N. approval
in order to provide a thin veneer of “multilateral”
protective cover to seduce the American people and Congress into
supporting the interjection of U.S. marines into the Lebanese
civil war on the side of the Gemayel family. Will the results
of such lawless intervention by the United States and some of
its NATO allies into the Persian Gulf war be as tragic and bloody
as it was for U.S. marines and French soldiers in Lebanon? Let
us hope not.

In any event, the Reagan Administration
has surrendered the initiative for war and further acts of hostility
to Iran as part of some cosmic game of “chicken,” wherein
the U.S. government has publicly admitted that its military calculations
are based upon the assumption that Iran will not do something
“foolish” or “irrational” as the Reagan Administration
defines those terms. In other words, the American people must
now depend upon the good sense of Iran to keep us out of further
involvement in the Gulf war. Only time will tell whether or not
the Reagan Administration’s reckless gamble with the lives of
U.S. sailors and airmen as well as with the destiny of this country
and its people, inter alia, will pay off.

The Reagan Administration’s apparent
resurrection of Thomas Schelling’s discredited and dangerous
theory propounding “the rationality of irrationality”
as the basis for its interventionary policy in the Persian Gulf
war could readily produce an incredible disaster for everyone
concerned. As of this writing, it has not yet materialized–assuming
that one is prepared to write off the 37 dead crewmen of the
Stark as an “accident,” which this author is not willing
to do. One would hope that the American people had seen quite
enough of President Reagan on national television shedding crocodile
tears over the bodies of American servicemen whom he had needlessly
ordered to their deaths because of his penchant to send in the
Marines, Navy, Army, or Air Force, whenever his illegal and bankrupt
foreign policies have finally demonstrated their genetic futility.
But as Machiavelli said in Chapter XVIII of The Prince: “.
. . men are so simple-minded and so dominated by their present
needs that one who deceives will always find one who will allow
himself to be deceived.” This maxim seems to have been the
guiding principle of the Reagan Administration throughout its
now seven years in office. I guess we will have to live with
it until the bitter end–whenever and whatever that might be.

Francis A. Boyle,
Professor of Law, University of Illinois, is author of Foundations
of World Order
, Duke University Press, and The
Criminality of Nuclear Deterrence
, Clarity Press. He
can be reached at: FBOYLE@LAW.UIUC.EDU

Notes

1. U.S. Congress, Neutrality Act of June
5, 1794, ch. 50, 3rd Cong., 1st sess., 1 United States Statutes
at Large [hereinafter Stat.] 381.

2. U.S. Congress, Act of March 2, 1797,
ch. 5, 4th Cong., 2d sess., 1 Stat. 497. 3. U.S. Congress, Act
of April 20, 1818, ch. 88, 15th Cong., 1st sess., 3 Stat. 447
(currently reissued as 18 <U.S.C.A>. sec967).

4. Ibid., 447-450. 5. Ibid., sec. 8,
449. 6. Treaty of Washington, May 8, 1871, 17 Stat. 863, T.S.
No. 133. 7. Ibid., 865. 8. Final Act of the International Peace
Conference, July 29, 1899, reprinted in American Journal of International
Law [hereinafter Am. J. Int’l L.] 1 (Supp. 1907):106.

9. Convention Respecting the Rights and
Duties of Neutral Powers and Persons in Case of War on Land,
Oct. 18, 1907, 36 Stat. 2310.

10. Convention Concerning the Rights
and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36
Stat. 2415, T.S. No. 545.

11. Convention Relative to the Laying
of Automatic Submarine Contact Mines, Oct. 18, 1907, 36 Stat.
2332, T.S. No. 541.

12. Convention Relative to Certain Restrictions
with Regard to the Exercise of the Right of Capture in Naval
War, Oct. 18, 1907, art. 1, 36 Stat. 2396 at 2408, T.S. No. 544.

13. See 36 Stat. at 2310, 2332, 2396,
2415. 14. “Neutrals have the right to continue during war
to trade with the belligerents, subject to the law relating to
contraband and blockade. The existence of this right is universally
admitted, although on certain occasions it has been in practice
denied.” John B. Moore, A Digest of International Law (Washington,
<D.C.:> Government Printing Office, 1906) 7:99-103.

15. Francis Boyle, “The Law of Power
Politics,” University of Illinois Law Forum, 1980:936-937.
16. Convention with Respect to the Law and Customs of War on
Land, July 29, 1899, Annex, art. 46, 32 Stat. 1803, 1822, T.S.
No. 403; Convention with Respect to the Law and Customs of War
on Land, Oct. 18, 1907, Annex, art. 46, 36 Stat. 2277, 2306-07,
T.S. No. 539.

17. Joseph H. Choate, The Two Hague Conferences
(Princeton: Princeton University Press, 1913), 74-77; Calvin
D. Davis, The United States and the Second Hague Peace Conference
(Durham: Duke University Press, 1975), 138-140, 171-72, 227-33;
William I. Hull, The Two Hague Conferences and Their Contribution
to International Law (Boston: Ginn & Co., 1908), 126-41;
Charles H. Stockton, “Would Immunity from Capture During
War of Non-Offending Private Property Upon the High Seas Be in
the Interest of Civilization?” Am. J. Int’l L. 1 (1907):932-933.

18. Barbara J. Fuschholz and John M.
Raymond, “Lawyers Who Established International Law in the
United States, 1776-1914,” Am. J. Int’l L. 76 (1982):806-07.

19. Christian L. Wiktor, ed., “Declaration
of London, Feb. 26, 1909,” Unperfected Treaties of the United
States of America (Dobbs Ferry, <N.Y.:> Oceana Publications,
Inc., 1976) 4:129.

20. James B. Scott, The Declaration of
London February 26, 1909 (New York, Oxford University Press,
1919), v; id., “The Declaration of London of February 26,
1909,” Am. J. Int’l L. 8 (1914):274.

21. Charles H. Stockton, “The International
Naval Conference of London 1908-1909,” Am. J. Int’l L. 3
(1909):614.

22. Ethel C. Phillips, “American
Participation in Belligerent Commercial Controls 1914-1917,”
Am. J. Int’l L. 27 (1933):675-693.

23. William C. Morey, “The Sale
of Munitions of War,” Am. J. Int’l L. 10 (1916):467. 24.
Philip M. Brown, “The Theory of the Independence and Equality
of States,” Am. J. Int’l L. 9 (1915):305; Malbone W. Graham,
“Neutrality and the World War,” Am. J. Int’l L. 17
(1923):704; “Neutralization as a Movement in International
Law,” Am. J. Int’l L. 21 (1927):79; Amos S. Hershey, “Projects
Submitted to the American Institute of International Law,”
Am. J. Int’l L. 11 (1917):390; Elihu Root, “The Outlook
for International Law,” Am. J. Int’l L. 10 (1916):1; “The
Organization of International Force,” Am. J. Int’l L. 9
(1915):45; George G. Wilson, “Sanction for International
Agreements,” Am. J. Int’l L. 11 (1917):387.

25. Ruhl J. Barlett, The League to Enforce
Peace (Chapel Hill: University of North Carolina Press, 1944),
215-218.

26. Alfred E. Zimmern, The League of
Nations and the Rule of Law, 1918-1935 (New York: Russell &
Russell, 1936), 515-516.

27. G.A. Res. 377, 5 U.N. GAOR, Supp.
(No. 20) at 10, U.N. Doc. A/1775, 1950. 28. “Whose Interest?”
Economist, 27 Sept. 1980, 42; Mansur (pseud.), “The Military
in the Persian Gulf: Who Will Guard the Gulf States from Their
Guardians?” Armed Forces Journal International, Nov. 1980,
44; “Dangerous Game,” Nation, 231 (1980):395; “Who
Will Police These Shores?” The Middle East, Oct. 1980, 26;
David Shipler, “Israeli Says U.S. Is Secretly Supplying
Arms to Iraq,” New York Times, Oct. 29, 1981, sec. A, p.
10, col. 1.

29. Treaty of Friendship, Feb. 26, 1921,
<R.S.F.S.R.-Persia>, art. 5 and 6, League of Nations Treaty
Series 9:403.

30. William M. Reisman, Editorial, “Termination
of the <U.S.S.R>.’s Treaty Right of Intervention in Iran,”
Am. J. Int’l L. 74 (1980):144; Huschfeld, “Moscow and Khomeini
Soviet-Iranian Relations in Historical Perspective,” Orbis
(1980):219.

31. Champaign-Urbana News Gazette, 18
Aug. 1980, sec. A, p. 4, col. 4; id., 19 Aug. 1980, sec. A, p.
4, col. 4; id., 21 Aug. 1980, sec. A, p. 4, col. 1; id., 22 Aug.
1980, sec. A, p. 4, col. 4; Washington Post [hereinafter Wash.
Post], 22 Sept. 1980, sec. D, p. 13, col. 3; Washington Star,
21 Sept. 1980, p. 6; Jack Anderson, “Why I Tell Secrets,”
Wash. Post, 30 Nov. 1980, sec. Parade, p. 20-25; Wash. Post,
23 Oct. 1981, sec. B, p. 17; id., 28 June 1983, sec. C, p. 15.

32. Claudia Wright, “Implications
of the Iraq-Iran War,” Foreign Affairs, 59 (1980-81):275;
Adeed I. Dawisha, “Iraq: The West’s Opportunity,” Foreign
Policy, Winter 1980-81, no. 41:134.

33. See e.g. Wash. Post, 27 Aug. 1981,
sec. 6, p. 31, col. 3; New York Times, 7 Mar. 7, 1982, p. 1,
col. 3; see also The Middle East, 24 Aug. 1980, 24; New York
Times, 18 July 1983, p. 3, col. 1.

34. Jim McGuish and Antony Terry, “How
U.S. Sky Spies Help Iraq’s War,” Sunday Times (London),
7 March 1985, sec. 1, p. 21.

35. David Alpern et al., “America’s
Secret Warrior’s,” Newsweek, 10 Oct. 1983, 38-45; Jay Peterzell,
“Can Congress Really Check the <C.I.A>.?” Wash.
Post, 24 April 1983, 61.

36. Mansour Farhang, “The Iran-Iraq
War,” World Policy Journal 2 (1985):671. 37. Under the provisions
of the Export Administration Act of 1979, the Secretary of Commerce
in consultation with the Secretary of State can review and adjust
the list of restricted countries. 50 <U.S.C.A>. App. sec2405
(West, 1985).

38. David Ignatius, “Iraq is Turning
to U.S., Britain For Armaments,” The Wall Street Journal
[hereinafter Wall St. J.], 5 March 1982, p. 22, col. 1.

39. Bureau of National Affairs, U.S.
Export Weekly, 6 June 1982, 312. 40. “A Tilt Towards Baghdad?”
The Middle East, June 1982, 7; New York Times, 18 July 1983,
p. 3, col. 1. 41. “U.S. Licenses Sale to Iraq of Small Jet,”
Wash. Post, 14 Sept. 1982, p. 12, col. 1. 42. Don Oberdorfer,
“U.S. Moves to Avert Iraqi Loss,” Wash. Post, 1 Jan.
1984, p. 1, col. 1; David Ignatius, “U.S. Tilts Towards
Iraq to Thwart Iran,” Wall St. J., 6 January 1984, p. 20,
col. 1.

43. Middle East Policy Survey, no. 102
(20 April 1984):1. 44. Jack Anderson, “Reagan Urged to Take
Sides in Persian Gulf,” Wash. Post, 1 December 1983, 17;
Philip Marfleet, “Calling the Iranian Bluff,” The Middle
East, July 1984, 16-17.

45. Amos Perlmutter, “Squandering
Opportunity in the Gulf,” Wall St. J., 13 Oct. 1983, p.
32, col. 3. 46. Roy Gutman, “U.S. Willing to Use Air Power
to Keep Iran From Beating Iraq,” Long Island Newsday, 20
May 1984, 3; Ignatius, “U.S. Tilts Toward Iraq.”

47. David Seib, “Textron’s Bell
Unit and Iraq Seen Near Final Agreements on Sale of 45 Helicopters,”
Wall St. J., 28 Feb. 1985, p. 32, col. 5.

48. David Ottaway, “U.S. Copter
Sales to Iraq Raises Neutrality Issue,” Wash. Post, 13 Sept.
1985, p. 1, col. 6.

49. Bernard Gwertzman, “Iran’s Navy
Stops U.S. Ship in Search Near Persian Gulf,” New York Times,
13 Jan. 1986, p. 1, col. 6.

50. Treaty on International Borders and
Good Neighborly Relations, June 13, 1975, Iran-Iraq, International
Legal Materials, 14 (1975):1133.

51. Philip Marfleet, “Economic Warfare
in the Gulf,” The Middle East, Sept. 1983, 79. 52. 35 U.N.
SCOR (2248th mtg.) at 1 U.N. Doc. S/RES 479 (1980); 36 U.N. SCOR
(2288th mtg.) at 1 U.N. Doc. S/RES 1487 (1981); 37 U.N. SCOR
(2388d mtg.) at 1 U.N. Doc. S/RES 514 (1982).

53. Judith Miller, “6 Nations to
Form Joint Gulf Force,” New York Times, 30 Nov. 1984, p.
7, col. 1; John D. Anthony, “The Gulf Cooperation Council,”
Orbis 28 (1984):447.

54. See e.g. <U.S.C>., 22 (1976):sec.
2302, 2314(d), 2753(c), 2754. 55. Jeffrey Record, “Persian
Gulf–Defending the Indefensible,” Los Angeles Times, 9
Nov. 1981, sec. A, p. 12; 56. Jack Anderson, “<R.D.F>.
Predicted to Have High Casualty Rate,” Wash. Post, 7 Aug.
1981, sec. C, p. 15; George Wilson, “U.S. Response Force
Would Face Heavy Losses Guarding Mideast Oil,” Wash. Post,
28 October 1980, 1.

58. War Powers Act of 1973, P.L. No.
93-148, 87 Stat. 555.

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