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Published online by Cambridge University Press: 28 March 2017
“I believe the United States has a strong interest in developing rules of international law that limit claimed rights to use armed force and encourage the peaceful resolution of disputes.”
John R. Stevenson, Legal Adviser, “United States Military Actions in Cambodia: Questions of International Law,” 62 Department of State Bulletin 765, 766 (1970).
A shorter, less documented version of this article will eventually appear as a chapter in Laurence A. G. Moss and Jonathan Unger (eds.), Cambodia in the Expanded War, to be published by Simon and Schuster. The preparation of this article was greatly facilitated by the research and editorial assistance of Claudia Cords.
1 Text of Address reprinted in 62 Department of State Bulletin 617 (1970). President Nixon’s attitude toward international law as revealed in the Cambodian operation was foreshadowed in a significant passage in his book, Six Crises. In analyzing the 1960 campaign for the presidency Mr. Nixon acknowledges that Kennedy outmaneuvered him by advocating a hard line against Castro’s Cuba. To differentiate his position from that of Kennedy and to shield the Bay of Pigs operation, then in a planning stage, from premature disclosure, Nixon felt obliged in 1960 to “go to the other extreme” and “attack the Kennedy proposal of such aid as wrong and irresponsible because it would violate our treaty commitments.” Reflecting on his presentation, Nixon writes “that the position I had taken on Cuba hurt rather than helped me. The average voter is not interested in the technicalities of treaty obligations. He thinks, quite properly, that Castro is a menace, and he favors the candidate who wants to do something about it––something positive and dramatic and forceful—and not the one who takes the ‘statesmanlike’ and ‘legalistic’ view.” Nixon, , Six Crises 382, 384 (rev. ed., 1968)Google Scholar. President Nixon’s handling of the Cambodian invasion embodied the same scornful disregard for legal restraint, urging a bold course of action on the basis of sovereign prerogative that seemed designed to appeal to patriotic rather than to world-order impulses of the citizenry.
2 One prominent example of the American attitude toward the Charter prohibition upon recourse to force was the initial statement by the U. S. delegate, Adlai Stevenson, in the Security Council debate occasioned by India’s invasion of Goa on Dec. 18, 1961. Security Council, Official Records, 987th meeting, Dec. 18, 1961. Two portions of Ambassador Stevenson’s statement are of particular relevance to the relationship between the Cambodian operation and the U.N. Charter, the fundamental legal document governing recourse to force in international affairs. The first, near the beginning of his presentation:
“When acts of violence take place between nations in this dangerous world, no matter where they occur or for what cause, there is reason for alarm. The news from Goa tells of such acts of violence. It is alarming news, and, in our judgment, the Security Council has an urgent duty to act in the interests of international peace and security.” (P. 66.)
Ambassador Stevenson made it clear that the Charter prohibition, aside from circumstances of self-defense, is not properly susceptible to self-serving interpretation:
“Let it be perfectly clear what is at stake here; it is the question of the use of armed force by one State against another and against its will, an act clearly forbidden by the Charter. We have opposed such action in the past by our closest friends as well as by ethers. We opposed it in Korea in 1950, in Suez and in Hungary in 1956 and in the the Congo in 1960.” (P. 72.)
3 U.N. Doc. S/9781, May 5, 1970; 62 Department of State Bulletin 652 (1970); 64 A.J.I.L. 932 (1970). The reasoning of Ambassador Yost’s letter will be found on p. 21 below.
4 John R. Stevenson, “United States Military Actions in Cambodia: Questions of International Law,” 62 Department of State Bulletin 765 (1970) (hereinafter cited as Stevenson); reprinted in 64 A.J.I.L. 933 (1970).
5 The so-called Brezhnev doctrine rests on the subordination of individual Socialist countries to the interests of world Socialism as these interests are construed by “the camp of Socialism” as a whole. For some interpretation see Falk, , “The Legitimacy of Zone II as a Structure of Domination,” in Davis, , East, , and Rosenau, (eds.), The Analysis of International Politics (forthcoming), and Firmage, “Summary and Interpretation” in Falk (ed.). The International Law of Civil War (1971)Google Scholar.
6 Mr. Nixon was asked how he could have announced on April 20th that Vietnamization was going so well that 150,000 Americans could be withdrawn by the spring of 1971 and then on April 30th that the Cambodian operation was necessary to protect the Vietnamization program from disruption. The President’s response included these two sentences: “I found that the action that the enemy had taken in Cambodia would leave 240,000 Americans who would be there a year from now without many combat troops to help defend them, would leave them in an untenable position. That is why I had to act.” 62 Department of State Bulletin 642 (1970).
7 The failure by the Government to disclose additional American activity in Cambodia makes it difficult to describe the claim with accuracy. Only on June 21, 1970, was it reported that American air strikes were regularly penetrating far beyond the announced 21.7-mile limit. These raids were initiated at the same time as the invasion, but have not been officially acknowledged or defended as yet. The report also indicated doubt as to whether the raids would end with the June 30th pull-out of American troops. The purpose of these raids is to prevent the North Vietnamese from establishing a new supply route into South Viet-Nam. New York Times, June 22, 1970, pp. 1, 20. It has become subsequently clear, of course, that the United States regularly provides close air support to Cambodian ground operations.
8 The validity of such executive authority has been largely supported even in the U.S. Senate, which affirmed by a vote of 79-5 the power of the President as Commander- in-Chief to take military action in Cambodia to protect the welfare of American troops in South Viet-Nam. The vote was taken in relation to an amendment offered to modify the Cooper-Church amendment. New York Times, June 23, 1970, pp. 1, 3.
9 See Rogers, W. D., “The Constitutionality of the Cambodian Incursion,” below, at p. 26; New Yorker, May 16, 1970, pp. 31-33 Google Scholar.
10 Stevenson, p. 766.
11 For an extensive account, see New York Times, June 24, 1970, pp. 1, 7.
12 See Sterba, “Cambodia: Fact and Fable of U.S. Air Missions,” ibid., Aug. 16, 1970, §4, p. 6.
13 Mr. Stevenson came close to acknowledging that an American complaint before the invasion about North Vietnamese violations of Cambodian neutrality would not have resulted in a positive response: “Soundings in the Security Council indicated very little interest in taking up the North Vietnamese violations of Cambodian territorial integrity and neutrality.” Stevenson, p. 770.
14 For background see Leifer, Cambodia: The Search for Security (1967).
15 New York Times, April 19, 1970, §1, p. 28, §4, p. 3.
16 Ibid., pp. 1, 9; April 26, 1970, p. 1; Christian Science Monitor, April 23, 1970, p. 2.
17 The German reliance during the Nazi period upon Fifth-Column tactics to undermine the governing process in countries which were the targets of aggression should be recalled in the Cambodian context. A “Quisling” régime is one that operates in the name of a nation, but serves as agent of its dismemberment and destruction. Vidkun Quisling was the head of the Nationalist Party of Norway, a pro-Nazi group with no parliamentary representatives and little popular following. In April, 1940, when Hitler invaded Norway, Quisling welcomed the German occupation of Norway and eventually obtained dictatorial powers in Norway from the Germans. The Quisling experience is an extreme case, but it usefully illustrates the undesirability of accepting a constituted regime as automatically empowered to act as the legitimate government of a country.
18 The Congressional Record, memorandum prepared by George, McT. Kahin, “Cambodia: The Administration’s Version and the Historical Record,” pp. 57428–57431, at p. 57431Google Scholar.
19 For Administration interpretation on this point see Stevenson, p. 766, especially note 9.
20 There is a curious inconsistency in Mr. Stevenson’s presentation. At the outset of his address he refers to the legal controversy over whether South Viet-Nam and the United States had a good legal basis for asserting a claim of collective self-defense, and contends that “Many of the differences rested on disputed questions of fact which could not be proved conclusively.” He goes on to say that “this administration, however, has no desire to reargue those issues or the legality of those actions, which are now history.” (P. 765.) But, then, throughout the address, he asserts the position of the prior Administration; for instance: “Since 1965 we and the Republic of Viet-Nam have been engaged in collective measures of self-defense against an armed attack from North Viet-Nam.” (P. 770.) The Cambodian invasion is justified as a temporary extension of the underlying claim to be exercising rights of collective self-defense. By forswearing argument on whether a case for self-defense exists in Viet-Nam, Mr. Stevenson must be understood as saying either that it makes no difference or that, once troops are engaged in battle, then, whether their cause is legal or illegal, it is proper to carry out their mission. The extension of such reasoning to other settings exposes its absurdity. Should the burglar be exonerated merely because he has persisted? Or should the notion of burglary be abandoned once the burglar finds himself engaged in an encounter with the homeowner or the police?
21 For one persuasive analysis along these lines see Henkin, Louis, “Force, Intervention, and Neutrality in Contemporary International Law,” 1963 Proceedings, American Society of International Law 147–162 Google Scholar.
22 But see Vietnam and International Law, Legal Memorandum prepared by the Consultative Council of the Lawyers Committee on American Policy Towards Vietnam 34-41 (2nd rev. ed., 1967).
23 Bowett, D. W., Self-Defence in International Law 206, 216-217 (1958)Google Scholar.
24 Ibid. 207.
25 Ibid.; see also J. Stone, Legal Controls of International Conflict 245 (1954), especially the assertion that “under general international law, a State has no right of ‘self-defence’ in respect of an armed attack upon a third State.”
26 McDougal, and Feliciano, , Law and Minimum World Public Order 248 and, generally, 244-253 (1962)Google Scholar.
27 Stanley Hoffmann has recently written that “Professor McDougal’s theory . . . will remain an astounding testimony to the grip of the Cold War on American thought and practice.” “Henkin and Falk: Mild Reformist and Mild Revolutionary,” 24 Journal of International Affairs 118-126, at 120 (1970).
28 McDougal and Feliciano, op. cit. 251.
29 Ibid. 67; the most widely relied-upon description of conditions appropriate for a claim of self-defense was given by Daniel Webster on April 24, 1841, in a diplomatic note to Canada. Mr. Webster, in his capacity as U.S. Secretary of State, wrote that there must be shown by the claimant government a “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
30 British and Foreign State Papers 1129, 1138 (1840-1841). 30 A learned and instructive discussion of the status of sanctuaries in international law is present in Fried, “United States Military Intervention in Cambodia in the Light of International Law,” paper presented to the International Conference of Lawyers on Vietnam, Laos, and Cambodia, Toronto, Canada (May 22-24, 1970) 7-25 (hereinafter cited as Fried).
31 62 Department of State Bulletin 762 (1970). The legal status of the invasion is not, of course, determined by the military success or failure of the operation. However, the reasonableness of a limited claim of self-defense depends on the proportionality of means and ends, and an assessment of military success or failure may give some insight into whether the force used was proportional to the end sought.
32 New York Times, June 9, 1970, pp. 1, 5. Vice President Agnew described American objectives in more grandiose (and possibly more criminal) terms in the following statement: “The purpose of the strikes into the sanctuaries is not to go into Cambodia but to take and reduce these supply depots, the hospital complexes, the command network, the communications, the weapons and munitions factories and maintenance facilities that are there.” (Emphasis added.) Hospitals as a military objective of the invasion were mentioned a second time in Mr. Agnew’s remarks. See transcript of CBS TV broadcast “Face the Nation,” May 3, 1970, p. 3; the second reference is to be found on p. 6.
33 See Letter to the Editor, New York Times, May 25, 1970, p. 32, signed by five men, including Bernard Brodie, Morton H. Halperin, and Thomas Schelling, who write of themselves and of the Cambodian operation as follows: “We, the undersigned, have spent our professional lives in the study of strategy and American foreign policy . . . the move into Cambodia simply does not make sense.” See also Gelb, Les and Halperin, Morton H., “Only a Timetable Can Extricate Nixon,” Washington Post, May 24, 1970, pp. B1-B2 Google Scholar.
34 After the South Vietnamese armed forces captured the Cambodian city of Kompong Speu, extensive pillage took place. One of the Cambodian military officers on the scene, Major Soering Kimsea, reacted by saying that “the population now has more fear of the South Vietnamese than of the Vietcong. They took everything—furniture, radios, money. . . . What they didn’t take, they broke. . . . Monks were robbed too.” New York Times, June 23, 1970, p. 2.
35 I have written a legal analysis of this earlier phase of the conflict. See 1 Falk, , ed., The Vietnam War and International Law 362–400, 445–508 (1968)CrossRefGoogle Scholar; see Vols. I and II for main legal positions in relation to the war.
36 There has been a steady erosion of this rô1e under the pressure of geo-political and ideological considerations. Among the instances where this pressure has been resolved at the expense of legal restraints are Guatemala (1954), Lebanon (1958), Bay of Pigs (1961), the Stanleyville operation (1964), Dominican Republic (1965), as well as a number of less visible interventions in the affairs of foreign countries through the activities of the CIA. See note 2 above.
37 There, are certain special circumstances of imminence, especially in relation to nuclear weapons, that make it unreasonable to limit the right of self-defense to the victim of the first act of violence. The Cuban missile crisis of 1962 and the Middle East War of 1967 are cases where it is plausible to argue that the “victim” state was also the one that struck first.
38 The precedents relied upon by Mr. Stevenson to establish a basis for the invasion are not very convincing, as they consisted either of brief “incidents” or involved extensions of claims of “hot pursuit.” Stevenson, pp. 768–769. The United States has, indeed, denied such precedents to other countries claiming the right to strike across boundaries against external base areas. Such strikes, because of their short duration, small magnitude, and generally light casualties, represent a far less serious use of force than the Cambodian invasion.
39 Address by Packard, David, Department of Defense News Release, May 15, 1970, p. 5 Google Scholar.
40 See Note from Columbia Law Review, “International Law and Military Operations against Insurgents in Neutral Territory,” reprinted in 2 Falk, , ed., The Vietnam War and International Law 572-593 Google Scholar.
41 For an analysis of the compatibility between special claims to use force and international law (including the U.N. Charter), see Falk, , “The Beirut Raid and the International Law of Retaliation,” 63 A.J.I.L. 415 (1969)Google Scholar. Note that the Beirut raid conducted by, Israeli military units on Dec. 28, 1968, was far more limited in scope, duration, and effects than has been the Cambodian operation. It seems questionable whether a use of armed forces on the scale of the Cambodian operation can be ever considered as a special claim falling outside of the Charter, but must be justified, if at all, as an exercise of the right of self-defense. Cf. Stevenson, pp. 768-769.
42 See text above, p. 10 and note 19.
43 For summary of U. S. and South Vietnamese violations of Cambodian neutrality prior to April 30, 1970, see Kahin, note 18 above, p. 57429; cf. also Chomsky, “Cambodia,” New York Review of Books 39-50, at 40 (June 4, 1970); Fried, Appendix 1, “Protests by Cambodia about Violations of its Territory,” pp. 1–9.
44 For speculation on motivation see Schurmann, “Cambodia: Nixon’s Trap,” Nation 651-656 (June 1, 1970); Scott, , “Cambodia: Why the Generals Won,” New York Review of Books 28-34 (June 18, 1970)Google Scholar.
45 The air strikes have continued on a regular basis since the July 1 withdrawal deadline. President Nixon has made no effort to change his earlier pledge on this point. It also is clear that these air strikes are intended to influence the military struggle in Cambodia, as well as to interdict supplies and troops that might be used against Americans in South Viet-Nam. A new “credibility gap” has arisen as a result of the discrepancy between the actual bombing patterns in Cambodia and the official statements on the subject. A useful summary of this situation is to be found in a newspaper article by Sterba, note 12 above.
46 Packard, loc. cit. 6.
47 U.N. Doc. S/9781, loc. cit. note 3 above. Ambassador Yost’s legal position was developed as follows: “The measures of collective self-defense being taken by U. S. and South Vietnamese forces are restricted in extent, purpose and time. They are confined to the border areas over which the Cambodian Government has ceased to exercise any effective control and which has been completely occupied by North Vietnamese and Viet Cong forces. Their purpose is to destroy the stocks and communications equipment that are being used in aggression against the Republic of Viet-Nam. When that is accomplished, our forces and those of the Republic of Viet- Nam will promptly withdraw. These measures are limited and proportionate to the aggressive military operations of the North Vietnamese forces and the threat they pose,”
48 For more detailed appraisals of the U.N. rô1e in relation to the Viet-Nam War, see articles by Bloomfield and Gordon in 2 Falk, ed., The Vietnam War and International Law 281–357.
49 For the text of the ten-point proposal setting that was supported by North Viet-Nam and the National Liberation Front and put forward in the Paris negotiations, see Kolko, (ed.), Three Documents of the National Liberation Front 15-23 (1970)Google Scholar. This proposal represents a serious basis for negotiations. It has never drawn either a response or a counter-proposal of comparable detail from the U. S.-South Vietnamese Delegations.
50 A depiction of this crisis and some proposals for overcoming it are the subject of my forthcoming book: This Endangered Planet: Prospects and Proposals for Human Survival, to be published in 1971 by Random House.
51 New York Times, June 24, 1970, p. 3.