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International Crisis & Neutrality
US Foreign Policy Toward the Iran/Iraq War
by FRANCIS A. BOYLE
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 collec
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